South China Sea verdict: How does it affect Malaysia?

Currently, Malaysia is claiming maritime areas in the South China Sea with five other countries namely Indonesia, Brunei, Vietnam, the Philippines and to a certain extent, China.

Recently, the Permanent Court of Arbitration (PCA) decided against the large Chinese claim over the South China Sea via the People’s Republic’s so-called ‘nine-dashed line’.

So how does this affect Malaysia?

As prescribed by the LOSC, any State may claim up to 12 nautical miles of territorial sea and up to 200 nautical miles of EEZ and continental shelf area.

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The maritime claims over the South China Sea are as shown in the following Figure 1:

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 2.

Beijing contends that these waters historically belong to them and therefore should remain under Chinese sovereignty.

The Spratly Islands, an archipelago consisting of more than 750 reefs, islets, atolls, cays and islands are enclosed within the lines claimed by China in the South China Sea.

Historically, this archipelago belonged to the former Japanese empire until the end of World War II in 1945.

The Japanese relinquished the sovereignty over these islands via the Peace Treaty of San Francisco signed between Japan and the Allied Powers in 1951, without naming the successor States to it.

The Spratly Islands are geographically located closer to the Southeast Asian claimant States if compared to China.

However, based on historical reasons, China put its claim on all of the Spratly, which are more popularly described as Nansha Islands 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.

On the other hand, China has started a number of reclamation works on the Spratly as a display of effectivitae over these maritime features.

The Philippines filed a case against China on 22 January 2013 to the Permanent Court of Arbitration (PCA) as allowed in Article 287 of the LOSC.

The Beijing government however, refused to accept the arbitration instituted by the Philippines.

Nevertheless, this does not mean that the PCA could not initiate proceedings as requested by Manila.

The PCA, on 12 July 2016 ruled unanimously that the so-called ‘nine-dashed line’ claimed by China on the basis of historical rights are invalid under international law.

The Chinese government was also requested to stop further activities in the South China Sea.

The decision of the PCA is final.

As this was a unilateral decision made by the PCA, Beijing has decided to reject the ruling.

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How Malaysia is affected

As shown in Figure 1, the so-called ‘nine-dashed line’ affects maritime areas in the Malaysian states of Sabah and Sarawak significantly.

As a result of this ‘nine-dashed line’ claim, the Chinese authorities in November 2015 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.

The decision of the PCA may provide an advantage for Malaysia as the ‘nine-dashed line’ claim has been declared invalid under international law.

Putting this ‘nine-dashed line’ claim aside, China’s claim over the South China Sea may not, in its entirety, encroach Malaysia’s maritime area based on geographical proximity.

Most maritime areas claimed by Malaysia in the South China are located more than 200 nautical-miles away from Chinese mainland.

The PCA ruling puts Malaysia in a better position to ensure that the Chinese encroachment would not happen again as Beting Patinggi Ali is located within the territorial waters of Malaysia.

Earlier in September 2015, Chinese Vice Admiral Yuan Yubai were reported to have said that South China Sea belongs to China based on its name ‘South China Sea’.

If this is the case, then the Strait of Malacca should belong in its totality to Malaysia, Strait of Singapore should belong only to Singapore, the whole Indian Ocean should remain with India and the Persian Gulf with Iran.

Hence, the ownership of maritime areas should not solely be based on the name of a country it is affiliated with.

The decision of the PCA is a milestone on the development of the law of the sea particularly on dispute resolution as it is in harmony with the preamble of the LOSC – to promote peaceful use of the sea.

Malaysia may benefit from the said ruling as the PCA has invalidated the nine-dashed line claim put forward by China that affected waters off Malaysian states of Sabah and Sarawak.

Despite Chinese rejection, this ruling provides leverage not only for the Philippines but also for other Southeast Asian nations like Malaysia, Brunei and Vietnam to begin talks with China.

It is crucial for the claimant States to find possible solutions.

One of the ways they may consider is to emulate the method applied in the Antarctic Treaty – putting aside the potential of conflict over sovereignty.

Seven sovereign States have made territorial claims over the Antarctic and these State were succesful in demarcating most of their claims peacefully.

Similarly, the South China Sea is now claimed by six countries – Will they be able to demarcate their territorial claims over this maritime area amicably?

If peaceful maritime demarcation is not an option, the claimant States may consider declaring the disputed South China Sea area as a ‘common joint-development area’ where the resources could be shared equitably among the States concerned.

In addition, as effective occupation or effectivitae is important particularly in acknowledgment of sovereignty in disputed areas, Malaysia should continue sending patrol ships, hoisting Malaysian flags on maritime features, conducting surveillance as well as encouraging local fishermen to fish in and around the ‘contentious’ zone.

Malaysians have to stay united as ‘one people’ in defending its sovereignty and sovereign rights over the South China Sea.

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The unwarranted statement made by an irresponsible member of a local political party that ‘South China Sea belongs to China’ should not be tolerated.

South China Sea belongs to all claimant States and should be shared in a way permitted by international law.

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Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at Universiti Sains Islam Malaysia and a visiting professor at the School of Law, Far Eastern Federal University, Vladivostok, Russia.