Exploiting arbitration ruling, Malaysia claims most of our Kalayaan Island Group

WHAT did former President Benigno Aquino 3rd, his Foreign Affairs secretary Albert del Rosario and his solicitor general Florin Hilbay do when they brought the arbitration suit against China before the Permanent Court of Arbitration in 2013?

They shot themselves in the foot. Correct that, they shot the Philippines in the foot.

Two of the major provisions of the arbitration award handed down in 2016 for that case emboldened Malaysia to claim that its continental shelf would include most of our territory called the Kalayaan Island Group (KIG), which the strongman Ferdinand Marcos had created by decree in 1978.

On Dec. 12, 2019, Malaysia submitted to the United Nations Commission on the Limits of the Continental Shelf (UN CLCS) a claim that its continental shelf extended beyond 200 nautical miles in the northern part of the South China Sea. The northern outer limits of Malaysia’s submission, as its accompanying map and its geographical coordinates show, are even 100 to 150 kilometers north of our KIG. (Lime and red lines in figure accompanying this column.)

Malaysian expansionism: it will eat up the Kalayaan Island Group and EEZ part. Image by author using Google Earth Pro

While Malaysia has not yet submitted the coordinates of the eastern and western limits of this newly declared continental shelf, it would logically encompass two-thirds of the KIG territory as well as a huge part of our exclusive economic zone (EEZ) passing through it.

It was only two months later that our Foreign Affairs department understood the meaning of Malaysia’s submission in December 2019. (China protested on the same day that the submission was filed.) Through the Philippine representative in the UN, it filed a note verbale March 6, 2020 protesting the Malaysian claim.

“The Malaysian submission covers features within the Kalayaan Island Group over which the Philippines has sovereignty,” the diplomatic note said.

North Borneo
It added that the continental shelf was projected from “portions of North Borneo” — Sabah — which the Philippines “had never relinquished its territory.” In other words, Malaysia was claiming a continental shelf drawn from a territory that the Philippines claims ownership of — Sabah.

Under the UN Convention on the Law of the Sea (Unclos), a state’s exclusive economic one is set as the area that extends seawards by 200-nautical miles from the country’s so-called baselines, roughly defined by its outermost land points. The continental shelf on the other hand is a geological feature: the prolongation of the coastal state’s landmass, determined by geological investigation.

The EEZ and the continental shelf in most cases are assumed to cover the same maritime territory, in which the coastal state has exclusive rights to explore and develop its natural resources, including those in its seabed. Beyond the EEZ, the coastal state has to submit geological data on the area — called the extended continental shelf — to the UN CLCS for evaluation and approval as its extended continental shelf.

This was done for Behnam Rise (east of Luzon), which was approved by the UN CLCS in 2012. Duterte through an executive order in 2017 ordered it to be named Philippine Rise, which is “subject to the Philippines’ sovereign rights and jurisdiction.”

Philippine Rise
If the UN CLCS approves the Malaysian submission of its extended continental shelf, it could claim rights to a vast swath of waters, especially those in our Kalayaan Island Group, in which it will have rights to explore for living and nonliving resources in the same way that an EEZ and Philippine Rise, for example, do.

Malaysia could only have been bold enough to claim a new extended continental shelf for itself because of the provisions of the arbitral award in the suit that the Aquino regime brought against China.

First, the award categorically ruled that no feature in the Spratlys is an “island” under the Unclos definition. Therefore, no island, reef or rock can have a 200-nautical mile exclusive economic zone, at most, and only for the few the arbitral award ruled as high-tide elevations, a small 12 nm territorial zone. That leaves most of the area Marcos created as our Kalayaan Island Group as international waters.

But Malaysia with its submission claims these aren’t international waters but part of an extension of its continental shelf. It implied that it would not claim the features, including their territorial waters, of islands and reefs occupied by other nations.

A second ruling bolstered this provision that made the KIG mostly international waters. The award in effect dismantled the KIG Marcos created in 1978, on the ground that this violates Unclos, which the Philippines is a signatory to, and especially since it called for the arbitration, and agreed to its rulings. The arbitral panel ruled (paragraph 574):

“The Philippines could not declare archipelagic baselines surrounding the Spratly Islands. Article 47 of the Convention limits the use of archipelagic baselines to circumstances where ‘within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.’ The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.”

Tribunal award
As an article on Malaysia’s new claim in the magazine The Diplomat put it: “The Malaysian submission implicitly shows support for the 2016 Tribunal Award that qualified all insular features of the Spratlys archipelago as having only 12 nm territorial sea and no claim to generating their own exclusive economic zones and continental shelves. Interestingly, the cover page of this Partial Submission dates back to 2017; perhaps that file was prepared not long after the judgment.”

What is worrying is that Malaysia already expanded its continental shelf way back in 1979, when it unilaterally issued an official map (see Figure 1) that overlapped with parts of our Kalayaan Island Group and our EEZ, without the UN CLCS approving that claim.

It was obviously to justify its seizure in 1986 of two features within our KIG, Mariveles Reef and Antonio Luna Reef. But not only that, invoking its new continental shelf, it seized in 1999 two other features in our KIG, Pawikan Shoal and Gabriela Silang Reef, on grounds that it was after all within its continental shelf.

As I explained in my column on Monday, the Philippines has hardly protested these seizures, that most international maps put these islands inside Malaysia’s continental shelf.

After extending its continental shelf to and even beyond our KIG in 1979, it is not unlikely that it would unilaterally enforce those claims by seizing other uninhabited features there.

UN CLCS
It would take the UN CLCS to rule on Malaysia’s claim, and it could even outrightly dismiss it, as other states — the Philippines and China — have protested it.

Malaysia’s claim though adds another country, after us, China, and Vietnam (as well as Taiwan) to those claiming the Kalayaan Island Group as theirs.

Duterte had said in his recent State of the Nation Address. “China is claiming it. We are claiming it.”

His first sentence is only partially true. He should have said: “China, Vietnam, and now Malaysia are claiming it.” And I would have added if I were his speech writer, “You want us to go to war with these three?”

Nations often are like boys in the schoolyard. Fights are usually between students of the same grade, and only in the movies between David AND a Goliath. The Philippines, Vietnam and Malaysia are roughly all in the same weight class, and the two Goliaths — the US and China — would likely just sit back and watch a fight among them.

As an article in a Thai newspaper on Malaysia’s expanded claims said: “Many regional analysts note that, if not managed properly, this flashpoint may lead to miscalculation that teeters out of control into a regional flare-up.”

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