Pearls and Irritations

A non- prejudicial clause can end internal bickering.

President Prabowo Subianto’s proposal for a joint development project in the South China Sea (SCS) with China has hit a snag. His foreign Minister, Pak Sugiono, was lynched before a parliamentary Committee on 3 December by lawmakers demanding answers to why Indonesia agreed to the term “overlapping claims” in the 9 November Joint Statement with President Xi Jinping.

Some critical netizens claim incorrectly the giveaway term implies Indonesia is no longer the legitimate, sole owner of the portion of its exclusive economic zone in the Natuna Sea.

In his defence, Sugiono informed the Parliamentary Committee that everything was above board. He assured the lawmakers that since no actual joint development has taken place, the Indonesian sovereign rights and territorial integrity in the Natuna Sea have never been compromised.

Sugiono denied categorically that Indonesia has recognised China’s nine dash line boundary in the SCS, as he has been accused of.

The Joint Statement, Sugiono argued, contains adequate legal safeguards to protect Indonesia’s sovereign rights should the proposed joint development mechanism become a reality, which a chorus of critics view as an attempt to appease the dragon despite Sugiono’s categorical denials.

Instead of welcoming Prabowo’s initiative to defuse tensions by jointly exploiting the large hydrocarbon deposits and fishery resources in the disputed area north of Natuna Island, lawmakers raked his foreign minister over the coals and by extension Prabowo’s foreign policy as a blunder, recklessly sucking up to China.

Given the pushback from the home front, Prabowo is likely to undertake damage control including beefing up the military presence in the Natuna Sea, emulating the tough policy of his predecessor President Joko “Jokowi” Widodo who during his first term arrested and destroyed fishing boats from China that illegally intruded into its EEZ, at one point scrambling Air Force jet fighters to buzz Chinese Coast Guard vessels to chase them out.

The Joint Statement is not confined to joint development proposal per se. It also contains clauses that go beyond strengthening bilateral relations, talking, for example, of the Treaty of Amity and Cooperation in Southeast Asia. It mentions the Belt and Road Initiative, the Asean Outlook on the Indo Pacific, a commitment by both parties to facilitate the full and effective implementation of the Declaration on the Conduct of Parties in the SCS and early conclusion of the Code of Conduct, boosting Asean centrality, climate change, the early signing of a China- Asean FTA and other general topics.

More importantly, both parties undertake to maintain and promote peace and security in the region via the JS.

Critics are also questioning whether Prabowo’s support for Xi’s signature Global Development and Global Security Initiatives in the Joint Statement is a reversal of Indonesia’s historic non-aligned posture by putting greater reliance on China, Indonesia’s and the region’s biggest trading partner.

It must be pointed out that the Indonesia-Beijing relationship has seen significant cooperation long before Prabowo took office. Xi chose to announce his maritime silk road (now BBRI) at Jakarta during an Asean summit.

To its credit, Indonesia has been a moderating factor in mitigating political tensions in the SCS involving China and other stakeholders via the Workshop on Managing Potential Conflicts since 1990. Hence Jakarta has a genuine stake in preserving peace in the SCS and not as accused of otherwise by some angry folks!

These informal workshops have established the cooperative programmes to mitigate marine pollution, marine scientific research, fisheries stock assessment and marine tourism and others.

It would be quite disrespectful to the political leadership who worked extremely hard to get China to agree on a host of issues to suggest that Indonesia’s sovereign rights and territorial integrity have been compromised by Prabowo’s proposal for joint development. Anyhow, when implemented, it will be done, in accordance, with “the principles of mutual respect, equality, mutual benefit, flexibility, pragmatism and consensus building.”

Incorporating a non-prejudicial clause into the actual agreement would further consolidate its claim. In this respect, Jakarta can take a leaf from Malaysia’s experience in joint development in disputed areas.

For example, the 1992 MOU between Malaysia and Vietnam to jointly explore and exploit petroleum in a defined area of the continental shelf contains a non-prejudicial clause.

An earlier MOU between Malaysia and Thailand in 1979 also contained a non-prejudicial clause that as a provisional arrangement the MOU doesn’t affect the final agreement between the parties, nor does it prejudice their respective territorial claim.

Hopefully, however, the domestic bickering over the phrase “overlapping claims” will abate, driven by shared economic interests and strategic partnerships.

Being two influential powers in the South China Sea, Indonesia and China must continue to maintain robust ties. That said, managing China in the South China Sea requires a combination of strategies that balance resistance, diplomacy and cooperation.

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