Indonesia and international law in the South China Sea

Indonesia and international law in the South China SeaDespite not being a directly concerned party to the South China Sea dispute, Indonesia always upholds the rule of law concerning the relevant issues and supports the settlement of disputes by peaceful means provided by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Recently, within only half a month, Indonesia submitted two notes verbales to the UN to take a stand on the South China Sea issue and resolutely decline China’s request to negotiate on maritime issues.

In the recent notes verbales and statements, Indonesia affirms that: (i) Indonesia is not a claimant to the territorial dispute in the South China Sea; their exclusive economic zone (EEZ) or continental shelf does not overlap with any illegal claims by China; (ii) Indonesia highlights the significance of the Award on 12 July 2016 of the South China Sea Arbitration between the Philippines and China; (iii) Indonesia has sovereignty and sovereign rights over the maritime areas in consistency with UNCLOS; (iv) Indonesia urges all parties to respect international law, including UNCLOS.

In 2010, Indonesia submitted to the UN a note verbale concerning the South China Sea issues, in which they stressed that the “nine-dash line” map by China lacked legal basis. However, in the legal battle this time, the wording in this note verbale shows a tougher Indonesia towards China.

It can be seen that the South China Sea policy of Indonesia is primarily based on international law and multilateralism. International observers have viewed that Jakarta has shown this consistency at different levels, ranging from unilateral to multilateral, regional to international levels. Indonesia now sees that they need to clearly demonstrate to China their toughness and consistent position in maritime sovereignty protection.

Indonesia’s consistent position on the rule of law was reiterated at the virtual meeting between Indonesian Foreign Minister Retno Marsudi and Chinese counterpart Wang Yi on 30 July 2020. The Indonesian Foreign Minister expressed her uncompromising attitude in affirming the principle stressed by Indonesia in the South China Sea disputes, that is respect for international law. She stressed that peace and stability in the South China Sea could only be maintained when all States respected international law, including UNCLOS.

The rule of law in the South China Sea is also an important point in the phone call between US Secretary of State Mike Pompeo with Indonesian counterpart Retno Marsudi on 03 August 2020. They highlighted the strong US-Indonesia Strategic Partnership and their shared goal in respecting international law in the South China Sea. Secretary of State Mike Pompeo backed Indonesia’s position that the Natuna Islands were outside of China’s jurisdiction. Although the “nine-dash line” claim by China partly overlaps with Natuna’s EEZ, it was rejected by the Arbitral Award and by the Statement on 13 July 2020 by Secretary of State Pompeo.

The rationales for Indonesia to take that firm and resolute position have been the interests of numerous researchers. The main ones might be:

First, China’s increasingly aggressive activities in the South China Sea have directly impinged upon Indonesia’s rights and interests. The conflict over the fishing rights in the areas of the Natuna Islands between Indonesia and China in 2016 led to Indonesia’s decision to change the name of these areas to the North Natuna Sea in 2017. This is considered as a move to reject China’s “nine-dash line” claim. In December 2019, China deployed fishing vessels and coast guard vessels to the waters of the Natuna Islands, reigniting tension and confrontation. Indonesian Foreign Minister Marsudi summoned Chinese Ambassador in Jakarta to protest this activity. Although Indonesia deployed many warships and fighter aircraft to the Natuna Islands, China vessels did not leave the areas until Indonesian President Joko Widodo took a visit to the archipelago in January 2020 to affirm Indonesia’s determination to resist China’s invasion. This is the reason why Indonesia took a firm stand on the South China Sea issue.

China’s increased aggressiveness to promptly achieve the South China Sea domination goal is alarming to Indonesia. Jakarta has well discerned that without a resolute action and respect for international law in the South China Sea, they will be the next target for Beijing after China successfully encroached upon the maritime areas of the Philippines, Viet Nam and Malaysia. Therefore, it is high time for Indonesia to express a strong attitude towards China’s claims and illegal actions in the South China Sea.

Second, despite being the biggest State in the Association of Southeast Asian Nations (ASEAN), compared to China, Indonesia has a much smaller total area, population as well as economic and defense potentials. Thus, international law, particularly UNCLOS, is the only means for Indonesia to protect their rights and legitimate interests in the South China Sea. Indonesia has also deemed it necessary that the whole ASEAN block unite to resist China, instead of Indonesia alone. Therefore, despite not being a claimant in the South China Sea disputes, Indonesia has always closely coordinated with the other coastal States to reach a consensus concerning this issue in ASEAN, including the negotiation of the Code of Conduct in the South China Sea (COC). The Chairman’s Statement of the 36th ASEAN Summit’s stronger tone on the matter of the South China Sea and upholding the rule of law, including UNCLOS, has been attributed to, beside the chairmanship of Viet Nam, Indonesia who has played a very active role in calling for consensus among ASEAN members.

Third, the 12 July 2016 Arbitral Award has satisfactorily explained how UNCLOS can be applied in the South China Sea’s current situation. Accordingly, the “historic rights” and “nine-dash line” claims by China in the South China Sea are rejected; all features in the Spratly Islands do not meet the requirements to generate EEZs and continental shelf under Article 121, and are entitled to a maximum of 12-nautical-mile territorial seas only. This is an important basis for the peaceful settlement of disputes in the South China Sea, as well as for Indonesia to protect their legitimate rights and interests. Therefore, Indonesia is among a few ASEAN countries to explicitly voice their support for the Arbitral Award, particularly through the two recent notes verbale.

The fact that the international community, including a number of European and American countries, Japan, India, Australia, New Zealand… has raised a strong supportive voice for the rule of law in the South China Sea, the respect for UNCLOS and the enforcement of the Arbitral Award has encouraged Indonesia to be bolder in its legal battle with China in the South China Sea. Such note verbal battle has become even more fierce with the involvement of the US, when the US Ambassador to the UN sent a letter to UN Secretary-General to reject illegal claims by China on 01 June 2020. In Indonesia’s view, such US’ move was in line with their policy and this was an opportunity that should not be missed as they move forward with the legal battle in the South China Sea. Some observers considered this as one of the main driving forces for Indonesia to continue to submit the 12 June note verbale to the UN.

Indonesia’s explicit support of the Arbitral Award is significant to the maintenance of a rule-based order in the South China Sea. This encourages other claimants to seek legal solutions in resolving the South China Sea disputes. On the other hand, given Indonesia’s prominent role in the ASEAN, this act has laid a new foundation for the solidarity of ASEAN countries on the South China Sea issues.

Indonesia’s 01 June letter and the US’ 13 July Statement have inspired countries beyond the region to clearly express their legal positions on the South China Sea issues. Without doubt, Indonesia will further promote the rule of law to deter China’s expansionism and maintain a rule-based order in the South China Sea.