China’s disputes with Malaysia and Brunei over the Nansha Islands
Abstract:
This chapter discusses China’s disputes with Malaysia and Brunei over the Nansha Islands. After an overview of the claims of Malaysia and Brunei, the chapter analyses the bases of these under international law. The dispute history of China-Malaysia and China-Brunei is followed by discussion of cooperative efforts and an insight into the future.
Malaysia and Brunei are the latest to join the dispute over the Nansha Islands, starting in the 1970s. This chapter analyses the bases of their claims under international law, followed by an assessment from the Chinese perspective and a description of disputes from the 1960s to the present. It concludes by discussing cooperative efforts and future insights.
Basis of Malaysia’s and Brunei’s claims
Malaysia is located in the centre of Southeast Asia, and has land borders with Thailand, Indonesia and Brunei and maritime boundaries with Vietnam and the Philippines. Brunei is divided by the state of Sarawak into two parts, and forms almost an enclave in Malaysia.
Malaysia claims sovereignty over 12 features of the Nansha Islands, of which it occupies five,1 namely Guangxingzai Jiao (Ardasier Reef), Boji Jiao (Erica Reef), Yuya Ansha (Investigator Shoal), Nanhai Jiao (Mariveles Reef) and Danwan Jiao (Swallow Reef) (Wu, 2009: 152). The other features claimed by Malaysia are Huanglu Jiao (Royal Charlotte Reef), Nantong Jiao (Louisa Reef), Guangxing Jiao (Dallas Reef), Lukang Ansha (Luconia Reef), Siling Jiao (Commodore Reef), Anbo Shazhou (Amboyna Cay) and Bo Jiao (Barque Canada Reef), of which Anbo Shazhou and Bo Jiao are occupied by Vietnam and Siling Jiao is occupied by the Philippines (Valencia et al., 1999: 32; Salleh et al., 2009: 113). Besides sovereignty over islands and reefs, Malaysia also claims 200 nm of EEZ off its coastline.
Like Malaysia, Brunei claims the southern portion of the Nansha Islands, including Louisa Reef and Rifleman Bank (Nanwei Tan) and more than 200 nm of maritime zone based on the provision on the continental shelf in the 1982 UNCLOS (Valencia et al., 1999: 38). Unlike the other claimants, Brunei does not occupy any feature of the Nansha Islands (McDorman, 1993: 264).
The provision on the extension of the continental shelf in UNCLOS forms the basic legal foundation for Malaysia’s and Brunei’s claims. Discovery and occupation are other bases of Malaysia’s claim.
Extension of the continental shelf
In December 1979 Malaysia published an official map (Peta Baru) showing the boundaries of its claimed territorial waters and continental shelf (Salleh et al., 2009: 108). The map indicates that the southern part of the Nansha Islands arose from Malaysia’s continental shelf and therefore belongs to it. This is often considered as Malaysia’s first formal assertion of sovereignty over these features (Cordner, 1994: 67). Actually, Malaysia’s claim can be traced back to its signing of the 1958 Geneva Convention on the Continental Shelf in 1960. Malaysia passed its own Continental Shelf Act in 1966 and amended it in 1972. Both versions define its continental shelf as ‘the seabed and subsoil of submarine areas adjacent to the coast of Malaysia’ up to 200 metres deep or the limit of exploitability (ibid.). On 2 August 1969 Malaysia proclaimed the extension of its territorial sea from 3 nm to 12 nm (Salleh et al., 2009: 108). In April 1980 Malaysia proclaimed its EEZ for the first time, and made it clear in the Exclusive Economic Zone Act enacted in 1984 (ibid.; Dzurek, 1996: 20, 59). It went on to sign the 1982 UNCLOS on 10 December 1982, and ratified it in 1996 (Nguyen and Amer, 2011: 251). These international and domestic laws form the basis for Malaysia’s claims over 12 features of the Nansha Islands.
Similar to Malaysia, Brunei claims sovereignty over Louisa Reef for the reason that it lies in its continental shelf area. Brunei was a British protectorate from 1888 to 1984, when it gained independence. In 1958
Great Britain issued two orders to determine the boundaries between Malaysia and Brunei: North Borneo Order in Council No. 1517 and Sarawak Order in Council No. 1518 (Salleh et al., 2009: 111). The 1979 Malaysian Peta Baru map did not reflect these boundaries. In August 1980 Great Britain, on behalf of Brunei, protested against the Peta Baru map (ibid.). After independence in 1984, Brunei published three serial maps showing its boundaries: a map showing its territorial waters in 1987, maps showing its continental shelf in 1988 and maps showing fishery limits (ibid.). After publishing these, Brunei’s claims became official. Brunei signed the 1982 UNCLOS in 1984 and ratified it in 1996 (Nguyen and Amer, 2011: 253).
Discovery and occupation
The second basis of Malaysia’s claim is discovery and occupation - one of the five traditional methods (accretion, cession, conquest, occupation and prescription) for claiming sovereignty over new territory (Valencia et al., 1999: 37). After occupying Swallow Reef in 1983, Malaysia’s Ministry of Foreign Affairs asserted on 9 September that the reef is now and had always been part of Malaysian territory. The declaration further stated that Vietnam’s occupation of Amboyna Cay had encroached upon Malaysia’s territorial sovereignty and territorial integrity, and demanded that Vietnam withdraw from the cay (Salleh et al., 2009: 113). It also stated that Malaysia had not claimed title to any islands and reefs of the Nansha group, but Amboyna Cay is now and had always been part of Malaysian territory (Wu, 1999: 124). This declaration seemed to indicate that its territorial claim was on the ground of historical rights, rather than the fact that those features were located on its continental shelf, but Malaysia did not provide further information. After sending troops to safeguard Swallow Reef in 1983 and making it a Royal Malaysian Navy forward base, Malaysia began deploying troops to Ardasier Reef and Dallas Reef. Some scholars regard the 1979 map as a proof of its claim based on discovery and occupation (ibid.: 125; Valencia et al., 1999: 36).
Assessment of Malaysia’s and Brunei’s claims
When Malaysia published the map claiming its continental shelf in 1979, there was no law or decree associated with the claim. Presumably, the bases of Malaysia’s claims are that these features lie within its continental shelf areas, and that it has discovered and occupied them (Shen, 1997: 64; Valencia et al., 1999: 36).
Extension of the continental shelf
The first basis of Malaysia’s and Brunei’s claims is features that are a seaward prolongation of a continental shelf. The inference from Malaysia’s claims is that a coastal state possessing a continental shelf also has sovereignty over the features arising from that shelf (Joyner, 1998: 202). In fact, the claims arise from misinterpretation of the UNCLOS continental shelf provision (Liu, 1995/1996: 873; Scott, 1995: 54). UNCLOS is a treaty about sovereignty over the sea, not the land (Murphy, 1994/1995: 200). UNCLOS and other customary international law do not give coastal states any right to gain new territory upon a continental shelf claim (Cordner, 1994: 67). A coastal state like Malaysia or Brunei may claim sovereign rights over the resources within its continental shelf but may not establish sovereignty over the features on the shelf (Gao, 1994: 348). And according to the principle of ‘land dominates the sea’ (la terre domine la mer) (Kwiatkowska, 2002: 2), Malaysia and Brunei could not claim sovereignty over the features in the Nansha Islands by simply relying on claims over their EEZ and continental shelf.
Rifleman Bank, claimed by Brunei, is 242 nm off the nearest coastal point in Brunei. Cordner (1994: 68) pointed out that the East Palawan Trough geographically interrupts the natural extension of Brunei’s continental shelf, which means the Rifleman Bank claim is on a totally wrong footing.
Discovery and occupation
Malaysia’s second basis of claim, discovery and occupation, is weak since it cannot prove that those features are terra nullius and the government has peaceful and continued effective control of them. In fact, Malaysia’s claims are relatively recent compared to claimants such as China, which can provide evidence of first discovery and control no later than the Han dynasty. Vietnam, the Philippines, Indonesia and Brunei have vigorously protested against Malaysia’s claim since 1979. Under the principle of ‘illegal acts cannot create law’ (ex injuria jus non oritur), illegal occupation does not create the basis for claims to a land.
Malaysia’s occupation of these features is regarded as illegal, which does not give Malaysia a valid and legal right to the features.
It is worth mentioning that the Malaysian government has recognised the weaknesses of these two legal bases and thus did not include its claims to sovereignty of the Nansha Islands in its joint submission with Vietnam to the CLCS.
History of disputes with Malaysia and Brunei
Malaysia’s actions to consolidate its occupation
Malaysia’s activities to reinforce its claim and show ‘effective control’ fall mainly into three categories: first, military occupation of island features and military build-up; second, government activities on the occupied features; and third, exploring and exploiting petroleum and natural gas in the sea area surrounding the occupied features.
Military occupation and build-up
On 22 August 1983 Malaysia sent troops to occupy Swallow Reef. Later, on 4 September, the government publicised news of its occupation. Soon after Vietnam lodged a protest, and the Malaysian Ministry of Foreign Affairs responded on 9 September by asserting that Swallow Reef is now and had always been part of Malaysia’s territory. The declaration also blamed the Vietnamese government for its occupation of Amboyna Cay, and alleged that Vietnam had encroached upon the territorial sovereignty and territorial integrity of Malaysia (Wu, 1999: 124; Salleh et al., 2009: 113).
Subsequently, in 1986, 1987 and 1999, Malaysia occupied Ardasier Reef, Mariveles Reef, Royal Charlotte Reef, Dallas Reef, Louisa Reef, Erica Reef and Investigator Shoal, which sparked off formal protests from other claimants, including China, and heated debates in the international community (Shen, 1997: 63).
After occupying Swallow Reef, Malaysia started to station soldiers and increase military build-up on these features. An airstrip was built on Swallow Reef, which soon became a navy command centre for military activities around the Nansha Islands. In recent years Malaysia has been strengthening its marine power and actively participating in military manoeuvres.
In 2002 Malaysia signed a contract with DCN of France and IZAR of Spain, and bought a retired French naval submarine named Agosta for training purposes. As reported, the purchase was based on a decision to reinforce Malaysia’s maritime defence and protect its vital marine resources, including its claim in the SCS (Jegathesan, 2002). In 2003, during a visit by Russian President Vladimir Putin, Malaysia signed a contract with Russia to purchase 18 SU-30MKM fighter planes within five years. The total value of the contract was US$900 million (AP, 2003).
Government activities on the occupied features
Government activities aiming at consolidating claims over the occupied features include government statements, high-level visits to the disputed areas and commercial activities.
In 1988, after the China-Vietnam conflict, Malaysia’s deputy foreign minister declared that the 12 features over which it claimed sovereignty were located on the continental shelf of Malaysia and had been under its control since 1979 (Valencia et al., 1999: 36).
In 1990 Malaysia passed the Free Zone Act, making the 10.1 km2 area of Swallow Reef a free business zone to promote commercial activities there.
Starting in 1991, Malaysia began building tourist resorts and facilities on Swallow Reef to show its ‘effective control’. So far a three-star hotel, an airstrip, and swimming and diving centres have been built. Every year the reef attracts thousands of visitors and it has become a world-renowned diving resort, which helps bring economic benefits and enhances Malaysia’s status of occupation.
In May 1995 Malaysian Prime Minister Mahathir Mohamad visited Swallow Reef to reaffirm the Malaysian claim to the feature (ibid.). It was the first time that a high-level government official landed on its claimed and controlled island. Mahathir’s visit was followed by visits of Deputy Prime Minister Najib Tun Razak and Prime Minister Abdullah Badawi in August 2008 and March 2009 (CCTV, 2009).
In May 1999 Malaysia occupied Investigator Shoal and Erica Reef, and constructed a two-storey building, a helipad, a pier and a radar antenna. Again, this invited formal protests from mainland China, Taiwan and Vietnam (Shen, 2002: 150). Prime Minister Mahathir Mohamad remarked that Malaysia was not violating any country’s territory and the structures were used only for climatic research and marine life studies and as navigational aids (Salleh et al., 2009: 112).
On 6 May 2009 Malaysia and Vietnam presented a joint submission to the CLCS providing information on limits of the continental shelf beyond 200 nm in the southern part of the Nansha Islands (Malaysia/ Vietnam, 2009).
Exploration and exploitation of petroleum and natural gas
Long before the publication of the 1979 map and 1983 occupation of Swallow Reef, Malaysia had begun exploring and exploiting oil and gas in the disputed areas. These oil activities contributed greatly to its economic growth.
In 1968 Malaysia announced that South Luconia Shoals, North Luconia Shoals and other reefs and shoals were in its ‘mining zone’ and granted a concession to Shell Oil of the United States. Since 1970 Malaysia had been drilling in Herald and Richmond Reefs of South Luconia Shoals, and then Friendship Shoal in the North Luconia Shoals area (Shen, 1997: 63).
China’s responses to Malaysia’s activities
Diplomatic relations between China and Malaysia were established in 1974, but the two countries had little communication during the Cold War because Malaysia was an ally of Great Britain and the United States. Since the Cold War ended the bilateral relationship between the two countries has progressed steadily, with increasingly frequent high-level visits and growing economic and culture exchanges. Unfortunately, these relations are affected by the Nansha Islands dispute.
On 14 September 1983, responding to Malaysia’s occupation of Swallow Reef, Qi Huaiyuan, director general of the Information Department of China’s Ministry of Foreign Affairs, who served from January 1983 to August 1984 as the first spokesman of the ministry, stated at a press conference:
Recently, the Danwan Jiao (Swallow Reef) of China’s Nansha Islands was illegally occupied by foreign armed forces; some other countries subsequently made territorial claims towards certain islands and reefs of China’s Nansha Islands. China has indisputable sovereignty over the Nansha Islands and the surrounding sea areas, and the natural resources within such areas are China’s property. China’s legitimate sovereignty over the Nansha Islands under no circumstances ought to be violated by any country on any ground by any means. Any and all occupations, exploration, exploitation and other activities in the Nansha Islands areas by any country other than China are all illegal and impermissible. (People’s Daily, 1983: 1; Shen, 1997: 69)
On 29 June 1999, in reaction to Malaysia’s occupation of Investigator Shoal and Erica Reef and facilities built on these features, Zhang Qiyue, a spokeswoman of China’s Ministry of Foreign Affairs, commented that China has indisputable sovereignty over the Nansha Islands and their adjacent waters. The construction of facilities on Yuya Ansha and Boji Jiao, no matter for what purposes, constituted encroachment upon China’s territorial sovereignty and would therefore be illegal and invalid (Shen, 2002: 150).
On 6 March 2009, after the Malaysian prime minister’s visit to Danwan Jiao, Qin Gang, spokesman of China’s Ministry of Foreign Affairs, affirmed:
China has indisputable sovereignty over the Nansha Islands and their adjacent waters. We wish to resolve the matter through consultations under the guidance of DOC. No activity should be conducted that complicates the current situation. We will work with other parties involved to maintain and safeguard the peace and stability of the SCS area. (Ministry of Foreign Affairs, 2009)
To protest against Malaysia and Vietnam’s joint submission to the CLCS, on 7 May 2009 China submitted a note verbale to the United Nations, with an attached U-shaped line map of the SCS, requesting the CLCS not to consider the joint submission:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. The continental shelf beyond 200 nautical miles as contained in the Joint Submission by Malaysia and the Socialist Republic of Viet Nam has seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea. (China, 2009)
Brunei’s activities and China’s response
After 95 years as a protectorate, Brunei obtained independence from Great Britain in 1984 and established diplomatic ties with China in 1991. Relations between the two countries blossomed at the turn of the century because of energy demand and supply.
Among Southeast Asian nations, Brunei is the third-largest producer of petroleum and one of the main natural gas producers in the Asia- Pacific region. As a result, Bruneians enjoy one of the highest living standards in the region. Brunei’s oil and gas exploration and exploitation facilities are mainly located in the Brunei-Sabah Basin, and the country produced 7.6 million tons of oil in 1998 and 10.3 million tons in 2004. Annual production of natural gas was 9.7 billion cubic feet in 1998 and 10.9 billion cubic feet in 2004 (Wu, 2006: 114).
Although Brunei is the only claimant with no military presence in the region, it is trying to build up its sea power and has participated in manoeuvres in the SCS, such as the US-led cooperation afloat readiness and training exercise. In 2004 it published a defence white paper, which represented its first attempt at making protection of national interests in the adjacent seas a strategic goal of the Brunei Royal Armed Force (Brunei, 2004). The 2007 update of the defence white paper stated that ‘Strengthening the RBAF’s ability to exercise control over its borders and in adjacent maritime areas is essential to national security’ (Brunei, 2007).
On 12 May 2009 Brunei submitted preliminary information to the CLCS, defining the outer limits of its continental shelf beyond 200 nm from the coastline (Brunei, 2009). China did not protest against this submission.
China-Malaysia and China-Brunei efforts for dispute settlement
On many occasions, China and the two countries have made joint efforts in solving the disputes through negotiations, although no concrete dispute resolution mechanism has been initiated so far.
China-Malaysian efforts
Malaysia’s foreign policy is focused on the principle of neutrality and regards the stability and security of Southeast Asia as its top priority. As an original signatory to the DOC, Malaysia has been actively participating in regional regimes, including ASEAN, the Organisation of Islamic Cooperation, Asia-Pacific Economic Cooperation and the Non- Aligned Movement.
In May 1999 Foreign Minister Tang Jiaxuan of China and Foreign Minister Datuk Seri Syed Hamid Albar of Malaysia signed a joint statement concerning a future cooperation framework between the two governments. This document states that ‘both sides should maintain the peace and stability of the South China Sea, and resolve disputes through friendly bilateral consultations under International Law and 1982 UNCLOS’ (Ministry of Foreign Affairs, 2000).
On 15 December 2005 China’s Premier Wen Jiabao and Malaysia’s Prime Minister Abdullah Badawi signed a joint communique stating that, with other ASEAN members, both countries will follow the DOC in order to maintain the peace and stability of the SCS. Both sides welcome concrete cooperation in disputed waters in the SCS under the guidelines to shelve disputes for joint cooperation (Ministry of Foreign Affairs, 2005).
In 2011 several Malaysian officials proposed joint development at multilateral meetings or other diplomatic events. Deputy Minister of Foreign Affairs A. Kohilan Pillay indicated in April that the SCS dispute should be resolved bilaterally at the table, in the spirit of the Declaration on the Conduct of Parties in the South China Sea and with mutual trust. He also mentioned that joint development will be an ad hoc solution to all claimants with overlapping claims (Bernama, 2011).
At the tenth IISS Asia Security Summit (the Shangri-la Dialogue) in June 2011, Malaysian Minister of Defence Dato’ Seri Dr Ahmad Zahid Hamidi proposed a much clearer blueprint of joint development, pointing out that Malaysia plans to establish an institution with members from all SCS claimant states negotiating economic activities in the region, and hopefully all nations involved in the dispute can share the abundant natural resources (Hamidi, 2011).
In April 2011 Chinese Premier Wen Jiabao made a state visit to Malaysia and remarked that the SCS disputes between China and Malaysia would not affect the two nations’ peaceful relationship. Joint development in the disputed areas will be beneficial to all claimant states and contribute to peace and stability of the region (Ministry of Foreign Affairs, 2011d).
China-Brunei efforts
Since the early 1990s Brunei and China have supported multilateral efforts for the resolution of the dispute.
In late 2002 outgoing Chinese ambassador to Brunei Qu Wenming told Brunei’s Borneo Bulletin that the two countries’ overlapping claims in the SCS did not affect the development of bilateral ties (Storey, 2005). Overall, this appears to be true.
On 20 September 2004 President Hu Jintao of China and Sultan of Brunei Haji Hassanal Bolkiah signed a joint communique between the PRC and Brunei, stating that both sides would work with other ASEAN countries to maintain peace and stability in the SCS, and should move forward towards a formal code of conduct for the SCS and would explore possibilities of cooperation (Ministry of Foreign Affairs, 2004).
In April 2005, during a visit to Brunei, Hu Jintao proposed joint development with Brunei in the SCS. He stated that priority should be given to the joint development of resources ‘on the basis of mutual respect, equality and mutual benefit and in an open and flexible manner’. Haji Hassanal Bolkiah referred to the November 2002 ASEAN-China DOC as ‘a big step forward’ in managing the dispute (Xinhuanet, 2005).
In addition, China and Brunei have been discussing projects on joint oil exploration in the SCS since 2010. In 2011, during his visit to Brunei, Premier Wen Jiabao held bilateral talks with Sultan Bolkiah. The two sides signed an agreement on energy cooperation, including offshore oil and natural gas exploration (China, 2011).
Conclusion
Malaysia is an important oil and gas producer and exporter among ASEAN countries. Most of its oil and natural gas resources come from disputed areas in the SCS. Because of misinterpretation of the UNCLOS provision on the continental shelf, Malaysia and Brunei have claimed some features in the southern part of the Nansha Islands. Their claims are relatively mild compared with other claimant states, and so far no military confrontation has occurred. Both Malaysia and Brunei have agreed to resolve disputes through bilateral or multilateral negotiations.
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1Regarding the number of features occupied by Malaysia, scholars have offered different figures depending, possibly, on different definitions of ‘occupation’. For example, deducing from the descriptions in Valencia et al. (1999: 32) and Salleh et al. (2009: 113), the number is eight.