What ownership of dots in the ocean means

Staking claim on what's ours
Evangeline Majawat, New Straits Times 14 Jun 08;

THE Pedra Branca and Middle Rocks decision by the International Court of Justice has thrown the spotlight on previously unknown, and even uncared for, islands, shoals, rocks and other maritime features. Maritime Institute of Malaysia director-general Datuk Cheah Kong Wai and Research Fellow Capt Rakish Suppiah explain to EVANGELINE MAJAWAT just what ownership of these dots in the ocean means.

Q: What are the international maritime laws which govern the seas?

Cheah: Historically, there was no uniformity in the maritime environment and as a result, various countries practiced different principles. To create some form of uniformity, countries came together and agreed that there should be a treaty to govern the ocean.

This treaty led to the United Nations Convention on the Law of the Sea (Unclos) on Dec 10, 1982.

Malaysia ratified Unclos in Oct 1996. By ratifying Unclos, states can claim maritime zones as provided for in the convention.

Q: What if a country doesn't ratify Unclos?

Cheah: Then they're not bound by it. However, they must abide by the customary international law, which is accepted by the international community as the norm.

Q: What are maritime zones?

Cheah: Under Unclos, a coastal state can claim territorial sea of up to 12 nautical miles. Beyond the territorial sea, it is called the contiguous zone and extends another 12 nautical miles.

A country can also claim 200 nautical miles (measured from the baseline) as its Exclusive Economic Zone (EEZ). There is also the Continental Shelf.

States can claim all these zones so long as they don't overlap with the maritime zones of neighbouring countries. (A baseline is the line along the coast measured during low tide).

Q: Who draws our country's boundaries?

Cheah: It's a comprehensive process that involves many agencies.

The map is drawn based on input from agencies such as the mapping division, Foreign Affairs Department, Fisheries Department, Attorney-General's Chambers and the Survey and Mapping Department.

Q: Are the maps updated? Is our baseline affected by reclamation work?

Cheah: The map used is the Peta Baru 1979. Maritime boundaries are not affected by reclamation work.

If a country reclaims land within its territorial sea, the baseline remains unaffected and will continue to follow the natural coast.

Q: Can you define an island? What other marine features are there?

Cheah: The definition is very technical. Under Article 121 of Unclos, an island is a "naturally formed area of land, surrounded by water, which is above water at high tide".

An island must be able to support habitation and sustain economic life. Then there are rocks, reefs and low tide elevations.

Q: Is Pedra Branca an island?

Cheah: It's a rock. But it is subject to interpretation. There will be discussions and justifications to define what Pedra Branca is.

Q: Does an island exert its own maritime boundary?

Cheah: An island, as defined by Unclos, can claim its own territorial sea and EEZ.

Q: What about rocks?

Cheah: Under Article 121(3), "rocks which cannot sustain human habitation or economic life of their own shelf have no Exclusive Economic Zone or continental shelf. But it is entitled to its own territorial sea".

Q: What about a low tide elevation?

Cheah: A low tide elevation is important because it can be considered to be a basepoint. In the case of Middle Rocks, the baseline could extend to South Ledge if South Ledge was taken to be a basepoint.

Q: What's the challenge now with Pedra Branca/Middle Rocks?

Cheah: As you've pointed out, there is a need to unravel the technicalities of the definition. We leave it to the technical teams of both countries to discuss and come to an agreement.

It's quite tricky because depending on the definition, the feature could generate certain zones. Therefore, it is important for discussions before delimitation can be carried out.

Q: How does an inclusion of a new feature affect a country's maritime boundaries? Does it extend its rights?

Cheah: Yes.

Q: How does one lay claim on "unclaimed marine features"?

Cheah: Any marine feature which lies within your territorial sea is definitely yours. Perhaps we need to assert our authority by carrying out activities.

Q: Must there be some sort of activity by the state as a sign of its sovereignty even if the islands lie in one's territorial sea?

Rakish: Not as such. Unless the island is clearly proclaimed under International Law and charted in the map, it isn't necessary for any activities.

However, in the case where an island has been proclaimed but remains uncharted, it is necessary to prove that we have sovereignty by having some sort of economic or commercial activities. It would be even better, if we could station army personnel or navy guarding the island.

There are countries that would love to exert the notion of terra nullius (no man's land) to exert claim that they were the first to occupy the land. Take for example, Pedra Branca.

Q: Is there any threat of any neighbouring countries laying claim if there is no active assertion by Malaysia on a feature.

Cheah: In the past, you could have done it but not these days. The government is aware whether the islands or rocks belong to us. Any foreign state must obtain permission from us to conduct any sort of activities.

We can claim islands/features which lie up to 200 nautical miles into the EEZ. For example, Layang-layang island in Sabah.

In the case of islands in the South China Sea, we have put up personnel, living quarters and set up government-commissioned scientific researches.

Rakish: It has been proven with Pedra Branca. Malaysia had its claim on that island but Singapore's activities, (and our) lack of documentation and relevant documents granting the republic the authority to manage the island, contributed to its case. Singapore was able to show its authority of its commercial and economic value of Pedra Branca.

Q: What about Batuan Unarang off the east coast of Sabah? Why should a sovereignty dispute arise when it lies within our waters?

Cheah: Batuan Unarang came into dispute after the Sipadan case was settled. Batuan Unarang lies at the border of the territorial sea. The boundary is somehow vague which gives rise to the dispute.

Each country may claim that Batuan Unarang lies in their waters. Malaysia and Indonesia are in discussion to reach an amicable agreement. Sovereignty of any island must be discussed diplomatically.

Q: Can local fishermen go to an island within our territorial sea, and should a dispute crop up, can the government use that as a basis when presenting the case?

Cheah: It will not carry much weight. It's not concrete evidence.

Q: Why is the EEZ important?

Cheah: By claiming EEZ, it gives sovereign rights to explore, exploit and manage the natural resources, living and non-living, in that zone.

It is all mainly for economic purposes such as fisheries, scientific researches and also environment protection and conservation. Other states may explore the zone as long as it is with the permission of the sovereign state.

Rakish: In many regions, states that are unable to claim a full EEZ because of the presence of neighbouring states will delimit the EEZs, usually through negotiations.

Q: How does a country's sovereignty correlate to maritime boundary?

Cheah: A country's sovereignty extends only to the territorial sea which is 12 nautical miles. Similarly, the sovereignty also extends to the airspace above for 12 nautical miles.

Beyond that, a country only has sovereign rights which means you have certain rights which are exclusive to that state. For example, fishing or exploitation of natural resources can only be carried out by the EEZ of the state which owns it.

Rakish: A state would have sovereignty over islands outside the 12 nautical miles limit, if these islands have been proclaimed to be under the state's jurisdiction under international law, for example Pulau Perak (Malaysia) and Greenland (Denmark).

Q: Is the principle of equidistance automatically applied during delimitation discussions between disputing countries?

Cheah: The countries must discuss and agree first. The line is drawn depending on the natural features.

Q: How would a concave/convex feature of a coast affect the delimitation based on the principle?

Cheah: Unclos defines all technicalities and would address all unfairness that should arise. For example, if you have a bay, the baseline is the straight line connected by points at the entrance of the bay.