• Malaysia should cautiously welcome the decision by the Permanent Court of Arbitration on the South China Sea arbitration between the Philippines and China

    Media Statement by Dr. Ong Kian Ming, MP for Serdang, on the 13th of July, 2016

    Malaysia should cautiously welcome the decision by the Permanent Court of Arbitration on the South China Sea arbitration between the Philippines and China

    The ruling by the Permanent Court of Arbitration (henceforth, the Tribunal) on the 12th of July, 2016, establishes a number of important findings that are consequential to the areas which are claimed by both Malaysia and China in the South China Sea.[1]

    Firstly, the Tribunal found that “there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.”

    Secondly, the Tribunal found that “none of the features claimed by China was capable of generating an exclusive economic zone (EEZ)” of 200 nautical miles. As such, some of the features under dispute lie within the EEZ of the Philippines.

    Thirdly, the Tribunal found that China had violated the sovereignty of the Philippines by obstructing fishing activities by fishermen from the Philippines, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the Philippine’s EEZ.

    Fourthly, the Tribunal found that China had caused “severe harm” to the marine environment as a result of its large scale reclamation activities in seven features in the Spratly Islands.

    Fifthly, the Tribunal found that China had “violated its obligations to refrain from aggravating or extending the Parties’ disputes during the pendency of the settlement process” because of its large scale reclamation activities.

    The findings of the Tribunal, if applied to other cases in the South China Sea, would strengthen Malaysia’s claim on features such as James Shoal or Beting Serupai, which lies a mere 80km northwest of Bintulu, Sarawak and is well within the continental shelf of Malaysia and the 200 nautical mile EEZ. Malaysia’s claim to the North Luconia Shoals (or Gugusan Beting Raja Jarun) and the South Luconia Shoals (Gugusan Beting Patinggi Ali) which are located approximately 100km from Sarawak would also be strengthened.

    Malaysia’s sovereignty over these features have been challenged by China in the recent past, most notably by Chinese navy patrols in James Shoal in 2013 and 2014[2] and more recently, in March 2016, by Chinese Coast Guard ships in the South Luconia Shoals.[3]

    Even though the ruling of the Tribunal is binding on all signatories of UNCLOS, China has already said that it does not recognize this Tribunal’s jurisdiction.[4] Given the importance of China as a trading and economic partner, Malaysia should minimize the risk of agitating China by continuing bilateral negotiations on the areas of dispute as well as negotiating for the establishment of a robust Code of Conduct (COC) in the South China Sea between ASEAN and China.

    The option to use international arbitration as a means to seek a decision on the areas of dispute between Malaysia and China in the South China Sea should be used strategically and when other options have been taken off the table.

    Dr. Ong Kian Ming
    Member of Parliament for Serdang

    [1] http://www.andrewerickson.com/wp-content/uploads/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf

    [2] http://amti.csis.org/malaysia-recalibrating-its-south-china-sea-policy/

    [3] http://www.reuters.com/article/us-southchinasea-malaysia-idUSKCN0YM2SV

    [4] http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

1 Comment

  1. noname says: July 19, 2016 at 7:35 pmReply

    First of all, you do not “claim” features that are well within your continental shelf limits. It is part of you. You only claim features that are within areas that are disputable according international law, such as features at the edge of a boundary drawn through disputable methods such as straight baselines when international law states otherwise. Moreover, James Shoal and the Luconias are not part of the Spratly group. They are being claimed by China due to the nine-dash line and not due to the Spratly group. Malaysia should not try to act as if it needs to strengthen claims to these features by exercising effectivité, reclaiming to build artificial islands etc. It should just treat it is as part a parcel of Malaysia as if it is Sibu town, say. Legally, this secures Malaysia against claims from other parties especially clearly ridiculous ones like the Chinese claim.

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