China is on a constant mission to exert control over the South China Sea, but recent legal moves by Malaysia and Vietnam could signal the start of bigger troubles for Beijing in the disputed seas.
On December 12, 2019, Malaysia extended its continental shelf by submitting a petition to CLCS in the South China Sea.
Putrajaya surprised the world with the submissions made under Article 76, paragraph 8 of the International Convention, to the United Nations Commission on the Limits of the Continental Shelf (CLCS) in December 2019.
Taken aback by Malaysia’s decision, China lodged two diplomatic notes to explain its position on Malaysia’s move.
Unhappy that Malaysia is seeking to widen its territory beyond the 200 nautical mile limit, Beijing urged the UN to reject Malaysia’s claims.
This isn’t the first time Malaysia appealed to the UN to protect its territories. Back in 2009, it joined Vietnam to submit for an extension of CLCS beyond 200 nautical miles (nm) in 2009.
In the region, Indonesia was the first country to submit information on the outer limits of the continental shelf beyond 200 nm in the northwest area of Sumatra Island on June 16, 2008.
In the wake of these developments, political analysts said the move is a departure from earlier protests notes issued by Malaysia on China’s activities including having its coast guards near Malaysian territorial waters.
They believe Malaysia has strategically escalated its position, beating China to its own game.
China had to react to the Malaysian move and had to condemn Putrajaya for the attempt to encroach in what it believes are its territories in the SCS.
Malaysia’s government strongly protested the Chinese note saying it will maintain its claim in the disputed area despite China’s objections.
In an analysis for the ISEAS – Yusof Ishak Institute – entitled ‘Malaysia and the South China Sea Dispute: Policy Continuity amid Domestic Political Change’, Ian Sorey says Malaysia’s submission implicitly recognized the 2016 arbitral tribunal’s ruling that none of the features in the Spratly’s was islands capable of generating EEZs or continental shelves.
And things became more complicated for China when Manilla and Hanoi submitted diplomatic notes on Malaysia’s claims.
The Philippines, on March 6, challenged Malaysia’s claims invoking the 2016 landmark ruling that invalidated China’s occupation of disputed areas in the South China Sea.
The Philippines says the area covered by Malaysia’s submission is within the Kalayaan Island Group, over which it asserts sovereignty.
The Philippines also claims that it has overlapping maritime rights and jurisdiction over the area submitted by Malaysia.
Manilla’s challenge of Malaysia’s claims is also a rejection of China’s claims in this patch of water.
According to a ‘note verbale’, the Philippine authorities say it intends to submit a petition over this parcel of territory at a future time.
China sent a note to the United Nations (U.N.), on March 23, in response to the Philippines’ note.
In it, Beijing claims it has sovereignty over the Spratly Islands and adjacent waters, has sovereignty and jurisdiction rights over relevant sea areas, seabed and subsoil.
Beijing also says that it has “historic rights” in the South China Sea, based on “historical and legal evidence.”
But on March 30, Vietnam also submitted a diplomatic note to express its views in protest of the Chinese views. Vietnam rejected and protested China’s sending of two diplomatic notes to the U.N., which lay claim to Vietnamese territories in the South China Sea.
Vietnam has a full legal basis and historical evidence to assert its sovereignty over the Spratly and Paracel Islands based on international law, the note stressed.
It asserted: “Vietnam protests claims on the South China Sea that go over boundaries as stated in UNCLOS, including claims regarding historical rights. These claims hold no legal value,” in the note.
Vietnam affirmed with consistency its stance on the aforementioned issues in several documents issued at the U.N., and in statements sent to relevant international entities.
Responding to the heightened diplomatic tension between the claimants in the conflict, Professor Carlyle Thayer says, Vietnam’s response to China’s diplomatic note on Malaysia’s submission on March 23, 2020, strengthens Hanoi’s legal stance in the South China Sea.
In a note on Twitter, Prof Thayer said Malaysia is trying to encourage its neighbours to enter discussions so they can all make claims to the extended continental shelf and negotiate among each other how to reach a solution to this. Face with Chinese intransigence on its claims, Thayer said that Malaysia’s submission to the U.N. should prompt other claimants to follow suit, which they all did so, regarding the 2016 tribunal case between China and the Philippines.
And in his view, Vietnam is right in responding to China’s reassertion of sovereignty over the entire South China Sea in its ‘note verbale’ to the UN Commission on the Limits of the Continental Shelf (CLCS) dated March 23, 2020.
The Emeritus Professor at The University of New South Wales at the Australian Defence Force Academy stressed that the three countries each cited a 2016 decision by the UNCLOS Arbitration Tribunal in a legal case brought by the Philippines.
The ruling invalidated the legal basis of China’s claims in the South China Sea. He also said China cannot draw straight baselines around the Spratly Islands to create an archipelago.
These legal actions by the Asean claimant nations show an important thing: Malaysia, the Philippines and Vietnam have used UNCLOS as the sole legal basis for their respective maritime entitlements in the SCS.
Their actions counter China’s claims in the UN, an important international forum. The three claimants have also used the Award of the Arbitral Tribunal which by itself, eliminates the legal existence of the nine-dash line and also helps narrow the overlapping seas in the Spratly’s.
This also opens up a chance for active cooperation for countries in the region. Vietnam, the Philippines and Malaysia should stand together in solving the disputes peacefully. The next move by the three nations is to move for a joint submission on the SCS to CLCS.
http://foreignaffairsasia.com/move-...ppines-may-tame-china-in-the-south-china-sea/
