What does the Indonesia–Vietnam EEZ Agreement mean for the region?

By Aristyo Rizka Darmawan*

Published on 12 January 2023

Introduction

On the 23rd of December, during Vietnamese President Nguyen Xuan Phuc’s visit to Jakarta to meet President Joko Widodo, Indonesia and Vietnam finally signed an Exclusive Economic Zone (EEZ) delimitation agreement after 12 years of long negotiations. Indeed, maritime delimitation agreements between States have normally taken many years to conclude. However, the recent EEZ agreement between Indonesia and Vietnam is important since it has implications for the region, especially China and Malaysia.

The latest EEZ agreement between Indonesia and Vietnam is a breakthrough not only for Indonesia and Vietnam’s bilateral relations but also for regional practices and security, at least for a three main reasons. First, it finally concludes a long negotiation between two countries and will  hopefully end escalations and tensions between the two countries in its undelimited EEZ area. There have been many escalations where Indonesia and Vietnam’s law enforcement agencies, accusing one another of conducting law enforcement in their EEZ. Therefore, it has created not only uncertainty for fisherman but also an obstacle in Indonesia and Vietnam’s bilateral relations.

Secondly, the agreement is also a breakthrough since it is concluded in the area of China’s unilaterally claimed Nine-dash line. Therefore, it reiterates  both countries positions in not recognizing the Nine-dash line claim. And thirdly, it shows a regional practice of double line, where the delimitation boundaries of EEZ and continental shelf should be negotiated separately.

Legal issues of the agreement

The EEZ agreement between Indonesia and Vietnam took a very long time to negotiate since there were a differing interpretations of maritime delimitation practices. Vietnam argued that there should be a single line between the continental shelf and EEZ. Indonesia and Vietnam concluded a continental shelf delimitation agreement in 2003, and Vietnam argued that the EEZ should follow the same line with the continental shelf. On the other hand, Indonesia argued that the EEZ boundaries should be negotiated separately between the continental shelf boundaries. Indonesia argued that under the United Nations Convention on the Law of the Sea (UNCLOS), it is a two separate maritime zone that should be negotiated separately.

Other legal issues that came up during the negotiations were the differences between the baseline that is being used to measure the delimitation area. As an archipelagic state, Indonesia is allowed to use an archipelagic baseline, while Vietnam can only use the normal baseline. These two different baseline measurements have made the negotiations complex since Vietnam feels that it made Vietnamese positions weaker in the negotiation process.

Despite the differences and the long negotiation process, Indonesia and Vietnam finally agreed that there should be two lines. According to UNCLOS, this practice regulates that continental shelf and EEZ are two different maritime zones that should be negotiated separately.

This recent agreement can be considered as a win-win for both countries as it can strengthen bilateral relations and avoid any escalation between fishermen and law enforcement agencies in the previous undelimited EEZ between Indonesia and Vietnam. In the past few years, there have been several frictions where both countries claimed illegal, unreported and unregulated (IUU) fishing in their area which led to an accident between the law enforcement agencies. Therefore, with the conclusion of the agreement, it is hoped that it can avoid any tension and escalations in the future.

Moreover, the recent agreement also creates  more legal certainty in terms of exploration and exploitation of resources in the continental shelf boundaries area between Indonesia and Vietnam. For instance, after the recent EEZ agreement, Indonesia and Vietnam also made an agreement on gas exploration which will be conducted by Harbour Energy and will be exported to Vietnam in 2026. Therefore, the agreement will not only contribute to security between Indonesia and Vietnam’s maritime boundaries but, significantly, it will also contribute to the economic cooperation between the two countries.  

Implications for the region

The recent agreement, however, might also have implications for the broader region. First, it shows that countries in Southeast Asia can settle maritime delimitation peacefully according to international law, particularly UNCLOS. It brings optimism that, with determination, Southeast Asian countries can peacefully settle maritime disputes based on international law. Therefore, certainly, there are possibilities to settle the remaining maritime disputes in Southeast Asia peacefully.

Secondly, the recent EEZ agreement between Indonesia and Vietnam shows a solid position among both countries that they are not recognizing illegal China’s Nine-dash line claim. The recent EEZ boundaries between Indonesia and Vietnam are in China’s Nine-dash line. Indeed, both Indonesia and Vietnam have made a clear position that they supported the South China Sea 2016 Tribunal ruling, which stated that the Nine-dash line claim by China does not have any legal basis under international law. Both countries have also made an open statement which explicitly rejects such a claim. Therefore, the recent agreement shows that Indonesia and Vietnam do not recognise China’s Nine-dash line claim. This is important to show that the regional practice is persistently objected to China’s illegal claim.

Currently ASEAN and China are negotiating the Code of Conduct (CoC) in the South China Sea, and one of the pressing pending issues in the negotiation is the geographical scope of the CoC. China seems to insist that the CoC should be implemented in the Nine-dash line area, while on the other hand other claimant’s countries do not want the CoC to be included in the Nine-dash line. This two-diverging interests between ASEAN and China seem to be the biggest challenges in the negotiations of the CoC. The recent agreement between Indonesia and Vietnam which does not recognizing the Nine-dash line shows a regional practice on the non-recognition of the Nine-dash line. Therefore it has created solid positions between the region that ASEAN will not recognise the Nine-dash line as a basis of geographical positions in the CoC negotiations.

Considering China’s position in the area, there are also possibilities that China will object and protest the recent agreement. China will argue that they have jurisdiction in the area which falls within the scope of the Agreement concluded between Indonesia and Vietnam. Therefore, Indonesia and Vietnam should anticipate if In the past, China has conducted some protests in regard to activities that are conducted in its Nine-dash line. For instance, to the Indonesia Tuna Bloc oil concession in Indonesia’s EEZ which overlaps with its nine-dash line. China sent a formal diplomatic protest to Indonesia and even sent its coast guard and survey ship to maneuvers in the Tuna Bloc area.

Lastly, it also implicates the ongoing EEZ negotiations between Indonesia and Malaysia regarding the double line between the continental shelf and EEZ. Currently, Indonesia is still negotiating an EEZ delimitation agreement with Malaysia which is similar to the one with Vietnam. Malaysia argued that the EEZ and continental shelf should be settled in the same single line. Furthermore, Malaysia argued that a single line between the continental shelf and EEZ has become customary international law. In contrast, Indonesia argued that EEZ and Continental shelf should be negotiated separately. This has been clearly stated in the 2003 Continental Shelf Agreement between the two Countries.

The recent EEZ agreement between Indonesia and Vietnam, which concluded a double line between the EEZ and the continental shelf, shows that it is not necessary and not customary international law to have a single-line maritime delimitation between EEZ and the continental shelf. Therefore, with these practices, it is hoped that Malaysia can agree to have a double line and have a EEZ delimitation agreement with Indonesia.

The EEZ Agreement going forward

The recent EEZ agreement between Indonesia and Vietnam shows a positive impact not only on the bilateral relationship between the two countries but also on the broader regional maritime delimitation practices. On Indonesia-Vietnam bilateral relations, it is hoped that the agreement will not only avoid tensions and escalations between law enforcement agencies in regard to the practices of IUU fishing, but will also increase economic cooperation between the two countries.

On the regional scope, it is hope that the EEZ agreement will have a positive impact which shows the existence of regional practice in not recognizing the Nine-dash line. The agreement can serve as an example for future negotiations between Indonesia and other countries, particularly Malaysia, to show that the delimitation between the continental shelf and EEZ is not necessarily in a single same line, but could be a double line practice.

* Aristyo Rizka Darmawan

A lecturer in international law at Universitas Indonesia and Visiting Fellow with the Rajaratnam School of International Studies at The Nanyang Technological University. His research focuses on the law of the sea and maritime security in Southeast Asia.