By INS Contributors

KUALA LUMPUR, Malaysia--The recent intrusion into Malaysian airspace by 16 strategic transport aircraft over the Luconia Shoals in the South China Sea (SCS), on June 1 followed by another by a Chinese Coast Guard ship on June 4, is a serious reminder on the importance of international conventions in regulating maritime borders.

For years, China has been playing a “divide and conquer” strategy to assert its control over the strategic waterways which border Vietnam, Malaysia, Indonesia, Brunei and the Philippines, launching intrusions by air and sea, building islands on coral reefs and using diplomatic and economic pressure to break up a united front.

The Association of Southeast Asian Nations (ASEAN) nations who have a stake in the area have yet to put up a single united front against China’s maneuvers but these states still have other means of responding.

Building a rules based order

Since the early 1900’s some countries expressed a desire to extend national claims to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. Using the customary international law principle of a nation's right to protect its natural resources, then US President Harry S. Truman had in 1945 extended America’s control to all the natural resources of its continental shelf. Other nations were quick to follow suit and today only two countries still use the old 4.8 km limit.

The United Nations Convention on the Law of the Sea 1982 (UNCLOS) provides that coastal states may claim sovereignty over territorial sea area up to 12 nautical miles measured from the baseline. Beyond the 12 nautical miles limit not exceeding 200 nautical miles, coastal states may claim for exclusive economic zone (EEZ) and continental shelf, where they possess sovereign rights to exploit living and non-living resources within these maritime zones.

It is also important for the international community and especially ASEAN to build upon its sovereign right to the SCS with the Permanent Court of Arbitration (PCA) ruling that China has no legal basis or historic claim on the Nine-dash line. China rejected the ruling, despite stating that all nations should 'respect international laws'.

While this has not stopped further aggressive action by China, it serves as a key internationally recognised cornerstone that the ASEAN claimants must build upon and strive to enforce.

Malaysia’s need to be assertive

Malaysia has claims in the South China Sea area but these have been challenged mainly by China, with Chinese coastguard and navy ships intruding into Malaysian waters no less than 89 times between 2016 to 2019, and often remained in the area even after being turned away by the Malaysian navy.

In 2019, Malaysia presented its submission to the United Nations Commission on the Limits of the Continental Shelf (UNCLOS), a claim that its continental shelf is extended beyond 200 nautical miles in the northern part of the South China Sea.

In light of recent developments, the country is widely seen as needing to take a more aggressive stance in its claims, especially in building up its ability to deter would be intruders into its waters through upgrading its air-defences and maritime enforcement abilities.

Should it fail to take the necessary steps, it will find itself being increasingly being pushed out of its EEZ and therefore losing access to its share of the resources in the area and setting a bad precedent for the rest of ASEAN.

31st meeting of UNCLOS states

At the June 23 debate on the UN Secretary-General’s report about the issues related to seas and oceans, UN agencies’ activities, and international cooperation over the past year, participants called for adherence to the 1982 UNCLOS, and stronger regional and international cooperation in sea and ocean-related areas as well as in responding to such challenges as marine pollution and climate change.
At the Meeting, Ambassador and Permanent Representative of Malaysia to the United Nations in New York Syed Mohamad Hasrin Aidid has reaffirmed Malaysia’s belief in the Convention as a significant document regulating every aspect on the use and resources of the sea, and which contributes to the strengthening of peace, security, cooperation and friendly relations among all the countries in the world.
He said, Malaysia further recognises the contributions and roles of the three main organs under the Convention, namely the International Tribunal for the Law of the Sea (ITLOS), the International Seabed Authority (ISA) and the Commission on the Limits of the Continental Shelf (CLCS).

Permanent Representative of Vietnam to the UN, Ambassador Dang Dinh Quy also reiterated that the convention is a comprehensive framework that regulates maritime and oceanic activities including guaranteeing safety and freedom of navigation.

He noted that all such disputes must be settled by peaceful means on the basis of international law, with respect for diplomatic and legal processes, and without the use of force or threats to use force and voiced his concern over some recent incidents in the SCS,  that have violated Vietnam’s sovereign rights and jurisdiction.

What the future holds

While China is the primary concern for most of ASEAN states concerning the SCS, it must be noted that ASEAN countries have competing areas among themselves beside Taiwan, which also makes claims in the area.

The way-forward, to ensure the resources of the SCS are used to the benefit of the surrounding states, would ideally be ASEAN states coming to a firm political, military and economic agreement to respect each other’s claims while jointly investing in the protection of the area for the benefit of all participating nations.

This must include keeping powers like China out of the area but also not becoming subject to others who have no claim in the area other than to use it for their geopolitical ambitions. ASEAN and its people have their right on SCS, and there must be no compromise in realising this.