News analysis

Incident may push Jakarta to take more active role in territorial rows

The exclusive economic zones (EEZs) of littoral states in the South China Sea overlap with China's nine-dash line, feeding into the territorial disputes between the Asian powerhouse, Taiwan and several nations in South-east Asia.

Indonesia, however, was never a party to the dispute, but it seems to have been dragged into a similar territorial fracas with China, after Beijing said on Monday that the waters in Indonesia's EEZ are part of its "traditional fishing grounds".

Jakarta has refuted the claim and, in a rare show of assertiveness, threatened to take the issue to arbitration, following a similar move by the Philippines. A second lawsuit against China may change the state of play in the long-running dispute, but most observers questioned if Indonesia will carry out its threat.

Dr Ian Storey from the Iseas Yusof Ishak Institute said Jakarta has been against taking legal measures against China, as doing so would mean Indonesia admits it has a dispute with China. This, he added, would go against the "neutral" position it has long taken in the ongoing dispute. "Why take legal action against China when the Philippines is already doing so?" said Dr Storey. "However, in the light of this incident, the Joko Widodo government might take a closer look at its legal options."

There is no guarantee of a resolution even if Indonesia takes the case to court, said experts.

China, for instance, has refused to recognise Manila's case at the tribunal, insisting the dispute be resolved through bilateral talks.

The Philippines will only consider two-way talks with China to resolve the disputes if it wins its case against Beijing at an arbitration tribunal.

Such acts of cherry picking by countries party to, or signatories to, the United Nations Convention on the Law of the Sea (Unclos), which governed the EEZs, continue because the agreement lacks any real teeth. The latest version of the agreement was ratified by 147 states, including China.

Oceans were historically divided into two categories - territorial seas, which are a state's sovereign waters stretching 3 nautical miles (or 5.56km) from its coastline, and the high seas, which are open to unrestricted navigation for all. Conferees of Unclos in 1994 agreed to extend a nation's territorial waters from 3 to 12 nautical miles and create several new maritime boundary designations including an EEZ extending 200 nautical miles from a country's coastline, said Professor Jeff Smith from the American Foreign Policy Council. There, the coastal state would enjoy sole exploitation rights over all natural resources. China , however, has a different interpretation of what it is entitled to.

"China does accept the concept of EEZs, but unlike most other countries that have ratified Unclos, China has argued that its 'historic rights' going back thousands of years trump Unclos, which was signed only in 1982," said Dr Storey. "Some Chinese legal scholars speak of 'Unclos plus', the plus being China's historical rights which the Unclos does not supersede (although) very few international lawyers outside of China would agree." Most countries that are party to Unclos have said territorial waters and EEZs should be consistent with the international law of the sea and must, among other things, derive from land features. They say China's claims, which are not derived from land features, are flawed.

The Natunas incident may push Indonesia into taking a more active role in the territorial saga, said Mr Emirza Adi Syailendra, an analyst from the S. Rajaratnam School of International Studies. "Although the diplomatic tension as a result of this incident will only be temporary, it will likely push Indonesia to have a clearer and coherent regional policy to dispute," he added.

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A version of this article appeared in the print edition of The Straits Times on March 23, 2016, with the headline Incident may push Jakarta to take more active role in territorial rows. Subscribe