WHILE disputes are common features of international relations, territorial-related disputes are the most complicated and difficult ones to resolve.
Such disputes may not only escalate the growing tensions between states, they may also, in all likelihood, give rise to armed conflicts.
Ergo, under international law any peaceful methods which may be able to resolve any international disputes are strongly encouraged. International law invariably motivates parties to pursue such resorts.
Hence, many international treaties such as the United Nations (UN) charter or the Bogota Pact or the Manila Declarations etc contain specific provisions cajoling parties to any dispute to settle their disputes by resorting to pacific settlement.
Though Article 33 of the UN charter outlines several common mechanisms in settling disputes such as by way of negotiation, inquiry, conciliation, mediation, arbitration and judicial settlement, the same provision equally permits the disputants to resort to regional agencies or arrangements or other peaceful means of their own choice.
Even resorting to flipping a coin to resolve a dispute is duly recognised under international law!
The embedded principle governing international law is the principle of sovereign equality of all members of the UN. This inviolable tenet is duly entrenched in Article 2 (1) of the UN Charter.
By virtue of this article of faith, the sovereign right of even a small country should therefore be respected and protected at all costs. Bullying and intimidation have no place at all under international law.
The 2023 edition of China’s “standard map”, published Monday on China’s Ministry of Natural Resources website which, inter alia, claims that part of Malaysia’s maritime area off Borneo, as well as Taiwan and swathes of the South China Sea is part of its territories seems to alter such a well-entrenched position by completely ignoring Article 2 (1) of the UN charter.
In essence, the South China Sea (SCS) dispute entails two components, namely the overlapping jurisdictional claims and the territorial dispute over groups of mid-ocean islands.
According to a legal expert in international law such as Dong Manh Nguyen, the SCS dispute would be regarded as one of the most complex disputes in East Asia, if not of the world.
Worst still, this dispute remains a dangerous source of potential conflict which may possibly turn into a serious international conflict if the same is not properly managed and abated.
The 2023 edition of China’s standard map was put up on the website of the cartographic service hosted by the Ministry of Natural Resources of the People’s Republic of China, during the so-called National Mapping Awareness Publicity Week.
Such a controversial map has also covered the exclusive economic zone (EEZ) maritime areas of Malaysia in Sabah and Sarawak, Brunei, the Philippines, Indonesia, and Vietnam, as well as several areas in India.
As far as Malaysia is concerned, it has categorically rejected such a unilateral claim by China. In my view Malaysia is absolutely right in not recognising China’s claim in that under international law.
China, with due respect, has no legitimate basis at all to make such a preposterous claim. Be that as it may, Wisma Putra is also right in maintaining its legal position that such a startling map holds no binding authority over Malaysia.
Such a self-proclaimed map, yet once again, reflects this bewildering feature namely the presence of a “ten-dash line” around the South China Sea (nine dashes) which includes several small islands and islets claimed by Southeast Asian countries such as Vietnam, Philippines, Brunei, Malaysia and Indonesia.
Al Jazeera reported that the tongue-shaped nine-dash line is based on Chinese tradition records dating to the Xia dynasty, nearly 4,000 years ago.
In 2016, however the Permanent Court of Arbitration held in its 497-page ruling that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the “nine-dash line”.
China not only boycotted the suit brought by the Philippines, it also rejected the ruling on the ground that islands had exclusive economic zones and the Chinese people have more than 2,000 years of history of activities there.
To be fair to China, boycotting the international judicial organ is not the exclusive possession of China alone. The United States also did the same when Nicaragua filed its claims against the former before the International Court of Justice ( ICJ).
The only difference is that the US initially participated in the Nicaraguan suit against it and in turn raised a few preliminary objections before the world court, However when the ICJ dismissed all of its preliminary objections, the US opted, thereafter, to completely boycott the proceeding.
Anyway, based on such a historic decision, it is plain and obvious that China’s so-called “nine-dash line” does not hold any water. It was duly superseded by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Thus, China’s maritime claim on the SCS has no iota of merits whatsoever.
In its official communique, rejecting the 2023 edition of China’s “standard map”, Malaysia also reiterated that it remains committed to cooperating to ensure all parties implement the Declaration on the Conduct Parties in the South China Sea comprehensively and effectively.
It is also committed to the effective and substantive negotiations on the Code of Conduct in the South China Sea (CoC), with the goal of finalising the COC as soon as possible.
Asean has sought to tamp down tensions by undertaking to speed up talks between the 10-nation bloc and CoC for the South China Sea.
As far as the CoC is concerned, many experts have recommended that the Code include a list of prohibited activities, such as land reclamation, the militarisation of occupied atolls and harassing ships belonging to other claimants.
While some Southeast Asian countries may be badly eager to get such a list on the table, China definitely is not keen to accept such an idea.
For CoC to add value to the non-binding 2002 Asean-China Declaration on the Conduct of Parties (DoC) in the South China Sea, Ian Storey is of the view it needs to include a list of tension-generating activities the claimants should desist from.
Asean has to promptly finalise the legal status of the Code either by making it as a binding treaty of a mere soft law without having strong teeth to bite. As the nub of the problem between some Asean countries and China entails the issue of China’s unilateral maritime claim based on such a disputed “nine-dash line”, China will probably be trying its best to push back in finalising the Code.
Finally, if the CoC has no legal force, Asean has to expect any transgressor of the Code to act with impunity. After all, with a non-binding code nobody may force anybody to adhere to the terms of the Code. In other words such a Code is no more than an otiose treaty. – August 31, 2023
Mohamed Hanipa Maidin is a former deputy law minister as well as a member of Parliament. He was also an active practising lawyer.