V. THE EVALUATION AND PROPOSITION IN REGARDS WITH INDONESIA NEGOTIATION STRATEGY
The aftermath of ICJ decision, terribly build tension between both nations is a very dangerous way. Resolving the territorial dispute by using legal matter adjudication has shown its lack of authority in ASEAN region. The critic about Indonesia decision to bring the case to the ICJ has echoed throughout nations for more than a decade after the decision. Indonesia compromise steps at the negotiation staged often blamed as the trigger for this decision. This pertaining issue will be analyzed in the next section with respect the following point:
1. Commentary on Indonesia Negotiation Strategy on Sipadan and Ligitan Case.
2. Insight through the “ASEAN Way” of ASEAN Countries.
3. Proposition for Indonesia negotiators in addressing the current and potential territorial dispute with Malaysia.
1. Commentary on Indonesia Negotiation Strategy on Sipadan And Ligitan Case
Negotiation is a process about how to deal with conflicting interest, which is interdependent between each other. The interest of one party of negotiation will affects the other party gain in that negotiation. In most every negotiation, people involved trying to reach an agreement that better than a no agreement. People who negotiated taught to believe that finishing the negotiation without concluding an agreement means a bad end. However, this particular Sipadan and Ligitan case has taught the negotiators in ASEAN region, especially Indonesian Negotiators that “no-agreement” sometimes means a better outcome than a careless one.
In this case, both Indonesian Government and Malaysia government had tried so long to reach an agreement. They started by doing diplomacy, political pressure and finally they decide to put into a legal matter and submit the case to the ICJ. However, some people who have been even only a mere spectator could see that the decision to go to ICJ is not settled any issue that related to the conflict as a whole. A national rejection of such decision has been flooding the international newspaper and critique to the government is getting worse. President of Indonesia at that time is criticized for being weak and too conforming to Malaysia side.
This questionable decision of Indonesian government decision to go to ICJ as represented by President Soeharto, according to Former Foreign Minister of Indonesia, was motivated by aspiration:
1. To settle bilateral problems as peacefully as possible so that the political atmosphere and stability as well as cooperation in South East Asia would be strengthened;
2. To avoid a burdening the future generations by bequeathing problems and disputes to them;
3. To indicate to the world and regional communities that Indonesia was peace-loving and International Law abiding country.
Take all these three points into account. Analyzing point one about settling bilateral problems as peacefully as possible so that the political atmosphere will be stable and for strengthening the cooperation in ASEAN region. This motivation arguably falls apart terribly, because after Indonesia agree to Malaysia proposition of submitting the case to ICJ, the political stability Indonesia come to the great tension and a year afterward the big reformation that led to national bloodshed occurrence.
It is essential to understand the political situation at the time of Indonesia submission to ICJ jurisdiction. Both countries agreed to submit the case to ICJ on may 31, 1997. Respectively, both parties agree that after ICJ gave their decision, it will be final and binding. Therefore, this agreement stopping any party to seek recourse in the future. This special agreement has lead a dozen critique and escalated the conflict inside the country.
Further, the money that government spent to the negotiation process has consumed about 16 billion Indonesia Rupiah. The government stated that such spending is necessary for the protection of Indonesia sovereignty. However, the society did not see the same perspective, most Indonesian at that time, regretting Indonesia steps to go for ICJ. A year after this special agreement, Indonesia reforms it government, President Soeharto is forced to step down. It is unjust to say that Indonesia decision to go for ICJ is one of the basic reason for this national chaos. As for that time, Indonesia economic also in dire condition. However, it is arguably proficient to say that society disillusion has escalated rapidly after this decision. One after one unwise decision that government take has led society to ousted him in anger.
This reformation has caused Indonesia unrest. Around 100,000 society protested and marched to the street and demanding President Soeharto to leave his post as soon as possible. 10,000 troops were keeping orders meanwhile 1,00 rioters was captured. Nothing about political stability and strengthen the regional cooperation happened in this case.
Turning to the second point to avoid burdening the future generations by bequeathing problems and disputes to them. This statement of motivation also fall terribly. As for now, this decision to ICJ was criticized even today, and Indonesia regrettably lost its two important islands in the border. This case, today, is like a symbol of an aphorism, “Indonesia lost for being loose.”
This decision to go to ICJ is even a regret that burdening today generations to act different from the past, to stand at all cost to guard its sovereignty without losing its stands. This stands could be seen through how Indonesia President afterward, president Susilo Bambang Yudhoyono, declaration as mention above that say Indonesia will lost nothing anymore in the future.
Last point about indicating to the world and regional communities that Indonesia was peace loving and International Law abiding country. This last point could be seen as fulfilled with cautions. Indonesia do abide with International Law by following the ICJ decision. However, it is hard to say that Indonesia stands today in relation with the territorial dispute issue is some peaceful and loving stands towards Malaysia. Military pressure and power display is surrounding the territorial dispute afterward. Conclusively, from three objectives that become Indonesia motivations to agree to bring the case to the ICJ. Two out of three points above are hardly fulfilled. Meanwhile, Indonesia do its position to abide by ICJ decision over Sipadan and Ligitan but nowadays, Indonesia shows a reluctance to bring any territorial dispute case into the international court once more.
Indonesia negotiations strategy that was motivated broadly by these three points has become the reason why Indonesia take a very cooperative nature in negotiations. This cooperative nature, even goes to the extent Indonesia willingness to agree to bring the case ICJ despite to every rejection from Malaysia from all Indonesia proposition beforehand. Indonesia, at that time, as part of ASEAN region has all mean of settling the dispute peacefully through the regional mechanism that was provided under ASEAN Charter that abides both Indonesia and Malaysia. However, Indonesia failed to see all its potential power and put aside any proposition, just because Malaysia reject its proposition and hardly do enough to protect country interest by agreeing that ICJ decision will be final and binding without any future recourse.
Further, the decision to go directly to the ICJ in resolving territorial dispute in one way or another hinder the ASEAN regional mechanism dispute settlement development. Some parties in the region believe, if both countries take recourse in regional dispute mechanism, it will contribute significantly toward the regional development. Because territorial dispute in ASEAN region is a common occurrence in regards to its geographical condition and also due to its long history of occupation.
Conclusively, in this case, the countries should go to ICJ only as the last resort after attempting all the list present outside court dispute settlement, such as, first by means of direct negotiation and the follow by third-party mechanism. In this present case, adjudication through court has been proven could not settle the present dispute efficiently.
2. Insight Through the “ASEAN Way” Of ASEAN Countries
a) ASEAN Background
ASEAN countries have a long history of territorial disputes and hundreds of occupations by Europeans colonials. The end of colonialism left a raging dispute about the emerging countries of ASEAN boundaries. For Example, Malaysia was formed in 1963, consist of Malaysia Federation and the Former British Colonies namely Singapore, British North Borneo (Sabah) and Sarawak. The Philippines opposed the formation of Malaysia due to its claims toward Sabah, a claim that has not been dropped even today. In 1968, information surfaced about Philippine plot to infiltrate and sabotage Sabah. This issue leads to a tension between both countries and even lead to bloodshed in February 2013.
The well-known case Preah Vihear also has taught ASEAN country the same story, that pursuing a legal decision on territorial dispute claim was never a settlement that will put down the tension. After the Preah Vihear dispute was decided by the ICJ, the tension keep standing and the military movement still on going up until now.
These two cases showed that adjudication process of territorial delimitation issue is really not effective. Even though the country such as Indonesia or Thailand were losing in front of the International Court decision but the afterward after such decision never a peaceful one. The loss may rankle a generation and accelerate the issue even more.
Further, another issue such as Indo-Chinese countries territorial delimitation after being a colonies and protectorates of France or French and British imperial expansion on mainland Southeast Asia which came at the expense of Thailand also shaping how the territorial dispute in ASEAN was a series of the border dispute that had been the legacy of European imperialism.
Considering this history, ASEAN has learned enough that territorial dispute is not a matter of the legal question but more and beyond. Settling such a deep-rooted issue in the light of legal matter is never an answer and seeing current progress, will never be an answer. The ICJ judgment may conclude a lot of dispute before this, but its decision over Sipadan and Ligitan did not make any dispute boundaries between both countries easier.
In this case, resolving the territorial disputes through the legal mean, only solving one part of the dispute not in its entirety. Therefore, this kind of decision always leads to another problem. Conclusively. International Court of Justice decision does not really solve the overall matter about territorial delimitation. Because by the end of the day, ASEAN delimitation problem is not about legal matter but mostly about a political matter which is non-justiciable disputes.
As a matter of fact, after ICJ Decision over Sipadan and Ligitan case, lead to another territorial dispute arising around the Sipadan and Ligitan area such Ambalat Sea Block case and Sebatik Island delimitations.
b) Insight Through the “ASEAN Way”
As a country of a long tradition of an amicable settlement, ASEAN country is well-known for their way called “ASEAN Way” which promote more into the indirect approach in settling problem. ASEAN Way promote an idea about non-intervention policy and seeks to compromise. Using a Charter and peer pressure as a bond to justified or induced one country to do something that is in line with ASEAN Countries value.
ASEAN nation comes into place together was a joint effort to explore and exploit the growth potential within the area. ASEAN way is settling a problem and find a solution that does not result in a loss of face but respect for each other as a sovereign nation. Therefore, settlement of the dispute through international court does not really complement how ASEAN countries works but more about putting an unnecessary burden for the country to stand firmly on their claim and escalate a conflict to a new level.
The ASEAN First Summit in 1976 were held with the signing of two declarations of ASEAN Concord and the Treaty of Amity and Cooperation (TAC). The ASEAN concord declared that every member states, in the spirit of ASEAN solidarity, shall exclusively on peaceful processes in resolving the issue in the region. TAC might have a been a choice for Indonesia and Malaysia in deciding Sipadan and Ligitan Issue. Indonesia wanted to bring the issue to the High Council under TAC, but Malaysia refused. Malaysia has a fear that other ASEAN members would be partial to Indonesia and also because Malaysia basically has territorial disputes with all her neighbor. Plainly put, Malaysia in itself acknowledges that the region understand better the condition that then court therefore, the involvement of ASEAN in this dispute will endanger their claim.
Subsequently, the case is presented to ICJ and decided by the court. Interestingly, the preamble of a special agreement between Indonesia and Malaysia for submitting the case to the ICJ stated that this disputes should be settled in the spirit of friendly relations existing between the parties as articulate in TAC. Under this circumstances, Indonesia and Malaysia, both acknowledge the existence of TAC as a spirit that bond ASEAN countries together and it is affirmed by stating TAC spirits inside preamble of agreement of submission to ICJ jurisdiction.
c) Treaty of Amity and Cooperation (TAC)
In 1967 ASEAN was formed through Declaration of Bangkok as a base for ASEAN constitution and 1976 Treaty of Amity and Cooperation (TAC). Under the declaration, ASEAN was constituted simply as the association for regional cooperation with following core of development and security objectives such as, among other things:
“. . . (1) acceleration of economic growth, social progress and cultural development in the region through joint efforts in the spirit of equality and partnership for prosperous and peaceful purposes in ASEAN region; (2) promotion of regional peace and security and active collaboration and mutual assistance on matter of common interest in the region; (3) maintain close and beneficial cooperation with existing international and regional organization with similar aims and purposes, and explore all recourse that will bring the region closer to cooperation among them.”
In actualize these cooperative objectives, TAC strictly enjoins ASEAN members to observe the fundamental principal of mutual respect for the independence, sovereignty, equality and territorial integrity. As a regional organization, ASEAN’s biggest success to date has been the containment of preventing conflict among its members. This success primarily attributed to its cooperative orientation. (the “ASEAN Way”) through the process of consultation, negotiation, and consensus. Adjudication option, as it is, is not align with the spirit of cooperation as mention in this charter and it is incorporated in the value of ASEAN member nations.
Under TAC Dispute Settlement Mechanism in Chapter IV, there is no judicial recourse such as tribunal, court or judicial procedure as a means to resolve disputes. TAC specified that:
“…In the event no solution is reached through direct negotiation, the party shall take cognizance of the dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation.”
In this instance, it clearly throughout course of an history, since the beginning of its formation, ASEAN put a firm stand on the cooperation between members and put aside the judicial proceeding outside of its stipulated understanding. ASEAN nations believe common value of ASEAN Way which is through the recommendation for settling a dispute between a neighboring country by using a strong endorsement of non-judicial recourse.
3. Proposition for Indonesia Negotiators in Addressing the Sipadan and Ligitan Territorial Dispute with Malaysia
a) The Best Approach for Sipadan and Ligitan Negotiation Process: Creative Options
In inventing a creative approach for a problem at hand, the parties need to: (1) separating the inventing option act from judging act; (2) expanding the options; (3) Aiming for Collective Interest; and (4) Find a decision with simplicity.
Based prescription mention above, the parties need to explore their choice through a creative option. Generating a creative option is one of the most essential skill of negotiators. However, this skill is not an easily generate as it is hard when people are overwhelmed with a problem at the table. Time after time, many negotiators fail to reach agreement and leave out what essential, or they do conclude an agreement but actually, there is a better option for both.
Generating an option is a very critical proficiency that most of the time, being the most essential part of it. However, it may vary greatly in every negotiation and usually the variation is depending on the interest of the respective parties. Interest define the problem. Interest also motivate people’s in making a decision. As one of the mothers of modern management, Mary Parker Follett, has one interestingly famous story:
“. . . [T]wo men [were] quarreling in a library. One wants the window open, and the other wants it closed. They bicker back and forth about how much to leave it open: a crack, halfway, three-quarters of the way. No solution satisfies them both.
Enter the librarian. She asks one why he wants the window open: “to get some fresh air.” She asks the other why he wants it closed: “To avoid the draft.” After thinking a minute, she opens wide a window in the next room, bringing in fresh air without a draft.
This story describes, how interest and position of a party could differ from the options that the parties originally thought as the only way. One party believe the only way to get fresh air through opening the window. Meanwhile, the other party does not want the window to be open at all because he wants to avoid the draft. These two-clashing interest makes the two parties quarreling for their position. Both parties could not see clearly an option outside of their “own bowl”. Until the librarian came and invent a creative solution for both of them. Nevertheless, both parties’ interest could be accommodated without has to jeopardize the other party interest. Often, negotiators to a specific negotiation were too overwhelmed by the present case and fail to find a new insight into an ongoing conflict.
i. Separating the inventing option act from judging act
As the story above goes, inventing option requires a partial approach from what is already inside the negotiators mind. It is hard to implement, as negotiator is a human being and often times, only could see what in front of the view. Therefore, the skilled negotiators need a brainstorming session to postpone all criticism and evaluation of ideas of counterparty.
In this brainstorming session, partial inducement upon party interest and the other party interest need to be adjudge partially with neutrality. Afterward, the generating result usually will be more useful than a half-baked idea that was generated from a closed mind. However, in separating the option from the judgment upon prior conduct and clear objective standard is required. This objective will be in party authority to decide in accordance with the entirety of circumstance surrounding the negotiation process.
ii. Expanding the options
Many times, negotiators even though with the best intention fail to expand option as they looking only to the single best option out of many. They tend to look at the single picture and hardly developing a breathing room for a new creative idea. This obstacle, often lead to disagreement and dissatisfaction between the party involves. This obstacle also, most of the times disconnect the interest between parties and lead to an endless confrontation. When this occurrence happened, the negotiation tends to develop slowly but surely to a dead end.
At this state of expanding the options, however, if the negotiator’s success in removing such obstacle, then the room for negotiation will be expanded. Afterward, the variety of option naturally will come into play. Therefore, to reach such end, it is important for negotiators to understand this concept and master the skill of creating a room for new ideas.
iii. Aiming for Collective Interest
Common assumption that blocking from the invention of creative approach is an assumption of a fixed pie. The logic of “the less for you, the more for me” usually will flood the negotiators mind. This zero-sum game minded, naturally will block any creativity that aim for collective interest. In theory, a collective interest is really essential for producing an agreement.
By reaching a collective interest, the parties in the negotiation could relate more about the negotiation as a whole picture. Therefore, this kind of opportunity could be used to escalate the solution that will satisfied both side. Further, by pointing at the collective interest, the respective party will feel that their interest will be accommodated and therefore, willingly obliged to any creative solution from such collective interest perspective.
iv. Concluding a Decision with simplicity
Successful negotiation is also depending on the condition where one side’s making a decision that accommodates the interest of another side’s. The feeling of being accommodated will straighten the common understanding between parties and therefore, could generate an amicable decision without further confrontation.
The perceived decision that is simple oftentimes will be more appealing to the parties in implementing it. This appeal will contribute significantly for the progress in reaching the agreed ends. Meanwhile, if the generated decision is featured with complexity. This decision, at some point will reach burning point where the decision is not amicable anymore because the parties disagree over how to implement it practically.
b) The Implementation of Creative Option Approach in Sipadan and Ligitan Case
In this present conflict, the parties at the dispute are two neighboring states in ASEAN region. They shared a common history and common value, as the countries from this region is established by common understanding. As explained above, in inventing a creative approach for a problem at hand, the parties need to: (1) separating the inventing option act from judging act; (2) expanding the options; (3) Aiming for Collective Interest; and (4) Concluding a decision with simplicity.
i. Indonesia Process of Inventing Option
When this approach applied to the present conflict, the parties need to start by separating the process of option invention and the act of judging the others. Inventing option to the present dispute will require an impartial approach and Indonesia negotiators need to exclude their prior knowledge regarding the dispute position and combining reciprocity element with a change of focus could also be an option in inventing process.
Further, Indonesia negotiators need to incorporate this impartial approach in the progress of brainstorming of inventing the creative option. In inventing the option, Indonesia negotiators should consider trade-off to generate the creative idea. Trade-off between the interest of the parties. For example, Sipadan and Ligitan is an island which under UNCLOS represent a 12-nautical mile territorial sea, 12 Nautical further for the Contiguous zone, 200 nautical miles for Exclusive Economic Zone and around 200 Continental shelf.
In this case, both parties focus too much on “owning” or “not-owning” the disputed islands. Meanwhile, Indonesia negotiators could take a step back and think impartially about the whole condition and could decide about a zone that is possible to be divided. Indonesia could suggest to divide the Exclusive Economic Zone of the island to be exploit and jointly managed the continental shelf. The invention of this kind option is more appealing to both countries because both countries have a part in these two islands.
ii. Indonesia Process of Expanding Option
The same principle applied as well for conflict between Indonesia and Malaysia in the present case. Both Indonesia has a clashed interest that said if one parties get the island, therefore the other party will get nothing. Both parties just stand firmly in their own position without really try to reach out to understand each other interest through the spirit of cooperation and understand as both countries are the member of ASEAN.
Indonesia negotiators should not have been surrendering to seeking an alternative dispute by using the third-party method, such as mediation or conciliation. Indonesia negotiators supposed to be aware that waging a confrontation through judicial proceeding without exhausted the regional dispute settlement mechanism to its maximum, will not bring any good for Indonesia or ASEAN as a whole. Because such approach is not parallel with “ASEAN Way”. This nomenclature of “ASEAN Way” includes the principle of seeking agreement and harmony, the principle of sensitivity, politeness, non-confrontation, and agreeability, the principle of quiet, private and elitist diplomacy versus public washing of dirty linen, the principle of being non-Cartesian, Non-legalistic. Prima Facie, these principles in line with a consistent with a wider cultural inclination within ASEAN to resolve disputes through consensus, compromise and consultation.
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