Are Malaysia's maritime frontiers properly 'fenced'?

Introduction

Malaysia is located smack dab in the middle of Southeast Asia.

Peninsula Malaysia is bordered by the Strait of Malacca to the west, Straits of Johor and Strait of Singapore to the south and the South China Sea to the east.

The western coastline of both Sabah and Sarawak is lapped by the warm waters of the South China Sea.

Sabah is bordered by the Sulu and Celebes Seas to its northern and eastern shores respectively. In total, Malaysia shares its maritime borders with six other countries namely Thailand, Singapore, Indonesia, Brunei, Vietnam, the Philippines and to a certain extent, China.

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Despite the fact that Malaysia has been a sovereign country and a member of the United Nations (UN) since Malaya’s independence in 1957, Malaysia still faces a number of unresolved maritime disputes particularly in the Straits of Malacca, Strait of Singapore, the Celebes Sea and the South China Sea.

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International Law

Article 3 of the United Nations Convention on the Law of the Sea 1982 (LOSC) clearly states that a coastal state may claim up to 12-nautical miles (approximately 22 kilometers) of territorial sea from the baseline of the coastal state.

The coastal state has absolute sovereignty over its territorial sea area which consists of both the seabed and the marine waters within that specified zone.

Beyond this 12-nautical miles limit, a coastal state could no longer exert sovereignty but it could however, exercise sovereign rights up to 200-nautical miles (approximately 370 kilometers) of ‘exclusive economic zone’ (EEZ), otherwise known as the fishing zone.

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However, the EEZ boundary involves only the marine waters in that zone without including the seabed area.

The seabed area is described as the ‘continental shelf’, usually rich in minerals and petroleum deposits, where the LOSC allows a coastal State to claim up to 200-nautical miles of continental shelf measured from its baseline.

In certain circumstances, the boundary line demarcating the EEZ and continental shelf could be different between two neigbouring coastal States.

Hence, a coastal state may possess sovereign rights to extract minerals from the seabed but could not exercise its rights to exploit fisheries resources in the body of marine waters over the seabed of the same area, as the sovereign rights to fish in these marine waters may belong to a different state.

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Straits of Malacca and Singapore

Historically, the Malay Peninsula and the island of Sumatra used to be part of a same political entity.

For example, the Malacca and Johor-Riau sultanates used to have territories that extended beyond the Malay Peninsula over to Sumatra.

However, the Anglo-Dutch Treaty has since 1824, politically separated the Malay Peninsula and Sumatra.

Despite having agreed territorial sea and seabed boundaries, there is yet to be an agreement between Indonesia and Malaysia on the delimitation of their exclusive economic zone (EEZ) boundary in the Strait of Malacca.

Negotiation on the maritime delimitation of their EEZ in the strait is ongoing.

The absence of a precise EEZ boundary delimitation in the northern part of the Strait of Malacca has generated difficulties for Malaysian and Indonesian fishermen in determining which maritime areas of the Strait are permissible for fishing, creating a zone called the ‘grey area’.

Beginning 2008 up to 2012, the Malaysian and Indonesian authorities have been apprehending hundreds of fishermen of either countries in the ‘grey area’ for allegedly committing illegal fishing, an offence under the law of both nations.

As the discussion on EEZ demarcation is still ongoing, the Malaysian and the Indonesian authorities have agreed in February 2012 to no longer arrest fishermen of either countries in the ‘grey area’ but instead would only instruct them to leave the area.

Figure 1: EEZ ‘Grey Area’ in the Strait of Malacca (Modified from Google Maps)

As the discussion on EEZ demarcation is still ongoing, the Malaysian and the Indonesian authorities have agreed in February 2012 to no longer arrest fishermen of either countries in the ‘grey area’ but instead would only instruct them to leave the area.

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Strait of Singapore

The Malaysia-Singapore dispute on sovereignty over Pedra Branca and the small rock islets of Batuan Tengah (Middle Rocks) and South Ledge was decided by the International Court of Justice (ICJ) in 2008. These three maritime features are located at the eastern portion of the Strait of Singapore towards the South China Sea.

The court awarded the sovereignty of Pedra Branca to Singapore while Batuan Tengah was awarded to Malaysia. As for South Ledge, the court was reluctant to decide anything and left this question to both countries to be settled amicably by them.

Figure 2: The location of Pedra Branca and the claimant States (Modified from GoogleMaps)

Negotiations between Malaysia and Singapore on this issue are still ongoing. Once they are completed, there will be changes in the maritime boundary delimitation between Malaysia, Singapore, and Indonesia on the eastern end of the waters of the Strait of Singapore towards the opening to the South China Sea.

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South China Sea

Malaysia shares the South China Sea with five other countries, namely Brunei, Vietnam, the Philippines and China, all of which are parties to the LOSC.

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As prescribed by the LOSC, any States may claim up to 12 nautical miles of territorial sea and up to 200 nautical miles of EEZ and continental shelf area. As shown in Figure 3, these States claim their maritime area based on what allowed under international law:

Figure 3. The Overlapping Claims over the South China Sea (Modified from GoogleMaps)

Legend: Yellow (Malaysia), Green (Brunei), Orange (Vietnam), Dark Brown (Philippines), Red (China)

Nevertheless, China’s claim is a little peculiar where the Beijing government actually claims sovereignty over areas enclosed within the nine-dashed line indicated in Figure 4. It is not too simplistic to state that some of the lines are located beyond 200 nautical miles from Hainan Island, China’s southern-most island.

Figure 4: China’s Self-proclaimed Nine-dashed line (Modified from GoogleMaps)

The Spratly Islands, an archipelago consisting of more than 750 reefs, islets, atolls, cays and islands are enclosed within these lines. China has put its claim on all of Spratly, which are more popularly described as Nansha by the Chinese. A number of countries have disputed the nine-dashed line as going against the spirit of international law. The United States have now started to boost freedom of navigation operations in the South China Sea to demonstrate that water space and the air above it is international.

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In November 2015, the Chinese authorities were reported to have encroched Beting Patinggi Ali (South Luconia Shoals) when fishermen from Miri were chased away by Chinese coast guard. Malaysia insisted that Beting Patinggi Ali (located about 134 nautical miles or 250km away from Miri) and its surrounding areas are within Malaysia’s EEZ by increasing the number of patrols in that area.

At the moment, it is certainly difficult to resolve the overlapping maritime claims in the South China Sea. ASEAN countries intend to settle this amicably through a multilateral treaty with China while China prefers bilateral treaties with each claimant States.

As effective occupation or effectivitae is important particularly in acknowledgment of sovereignty in disputed areas, Malaysia should continue sending patrol ships, conducting surveillance as well as encouraging local fishermen to fish in and around the ‘contentious’ zone, or better still, hoisting Malaysian flags in areas in and around Beting Patinggi Ali as a display of sovereignty.

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Sulu Sea

Ambalat is a seabed area rich in petroleum deposits in the Celebes sea located off the east coast of Borneo. It lies to the east of North Kalimantan in Indonesia and to the south-east of Sabah, Malaysia. Rich in petroleum deposits, it has been the subject of a territorial dispute between the two nations.

Figure 5: The Disputed Ambalat Block in the Celebes Sea (Source: America.pink Encyclopedia)

The dispute created considerable tensions between Malaysia and Indonesia, particularly in 2009 where there were several facing-off incidents between the navy vessels of both States. Nevertheless, tensions have decreased since then. Negotiations are still going on to erect proper seabed boundaries between both States in the disputed Ambalat Block area, indicated in Figure 5.

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Conclusion

The issues described above show that the problems of maritime boundary delimitation have not been entirely settled between Malaysia, its ASEAN neighbours and China as far as the Straits of Malacca and Singapore, the South China Sea and the Celebes Sea are concerned.

Hence, Malaysia should work together with these six other claimant States to deal with this unfinished business amicably under the spirit of good-neighbourliness.

It is true what most people say; ‘good fences make good neighbours’.

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Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at Universiti Sains Islam Malaysia and a research associate at the Asian-African Legal Consultative Organization (AALC)), New Delhi, India. Roman Dremliuga (Ph. D) is an associate professor at the School of Law, Far Eastern Federal University, Vladivostok.

Views expressed are personally those of the author and do not necessarily reflect those of Astro AWANI.