In a news report in the local media recently, Prime Minister Najib Abdul Razak was reported as reiterating that Malaysia “…will continue to rely on diplomacy and dialogue to peacefully resolve differences and disputes…”
This report was published in The Star on May 30, 2016, with the heading ‘Najib calls on Asean to resolve South China Sea dispute’.
It may be prudent for Malaysia, in keeping with its history of resolving international disputes, to also take a position that, if its efforts at resolving its claims in the South China Sea through diplomacy and dialogue should fail, it will consider pursuing its rights under international law to settle its disputes before an international court or tribunal.
The dispute relates to China’s maritime claims over the South China Sea, which are marked with the now infamous Nine Dash Line. China’s claim is purportedly based on historic rights, a view that many contend is not consistent with the present 1982 United Nations Convention on the Law of the Sea (Law of the Sea Convention).
Malaysia, as one of the claimant States to the several islets in the South China Sea, has thus far taken a rather careful and safe approach, despite China’s maritime claims.
Examples of China’s claim include James Shoal (Beting Serupai), which is 50 miles from Bintulu and Swallow Reef (Pulau Layang-Layang), approximately 161 miles north-west of Kota Kinabalu.
Philippines instituted arbitral proceedings
On the other hand, the Philippines, as one of the claimant states to the islands in the South China Sea, had after failed negotiations, instituted arbitral proceedings against China under Annex VII of the Law of the Sea Convention.
The Law of the Sea Convention provides for compulsory third party dispute settlement among state parties (including China, Philippines Malaysia) whenever there is a dispute as to the interpretation or application of the convention that cannot be settled.
However, China has chosen not to participate in the proceedings. The arbitral tribunal determined that it has jurisdiction to hear the case and subsequently proceeded to hear the merits of the case and is expected to issue a decision in the coming weeks.
Acts of resolving disputes before an international court or tribunal appears to be, although disputed by China, consistent with the requirement for states to resolve their disputes in a peaceful manner.
This is, among others, recognised by Article 33 of the 1945 Charter of the United Nations and the Law of the Sea Convention.
Such acts of resolving disputes before an international court or tribunal (third party dispute settlement) are not uncommon and are well established in the realm of international dispute resolution.
As with the hundreds of cases resolved by international courts and tribunals, such as the International Court of Justice (ICJ) and the Permanent Court of Arbitration (PCA), Malaysia has similarly participated in, and in some cases initiated, several cases that have resolved long-standing disputes with its neighbours.
These cases include those against Indonesia (Pulau Ligitan and Pulau Sipadan case before the ICJ) in 1998, and Singapore (Pedra Branca case, ICJ) in 2003, (Land Reclamation Case, PCA/ ITLOS) in 2003 and (Railway Land Arbitration Case, PCA) in 2012.
Hence, it is clear that resorting to international courts and tribunals to resolve standing disputes is well established and could be beneficial, especially for a small nation such as Malaysia. Doing so will place Malaysia on similar footing with the other party – regardless of size – before an international court or tribunal.
While the decision to resort to an international court or tribunal is also weighed with other considerations, including political considerations, it may be too early for Malaysia not to consider third-party dispute resolution as a means of resolving the South China Sea dispute – and instead to rely solely on diplomacy and dialogue.
Resorting to third party dispute settlement is also not inconsistent with the Declaration of the Conduct of Parties in the South China Sea (DOC) as affirmed by the arbitral tribunal in the Philippines vs China case, which decided that the present DOC does not prohibit states concerned from resorting to third party dispute settlement.
SHAUN KANG is a researcher in international law.