Commentary 2016/32, 13 July 2016
The aftershocks of the arbitral tribunal’s award in the Philippines vs. China case on the South China Sea (SCS) continue to rattle the region days after its delivery. However, the intense discussions on the ruling have yet to catch on in Malaysia – a key ASEAN claimant state.
The Ministry of Foreign Affairs’ forgettable response will be remembered for “motherhood” statements such as calling on the parties to “peacefully resolve disputes by full respect for diplomatic and legal processes; and relevant international law and 1982 UNCLOS.”
The 213 word document avoided a single mention of the Philippines. Despite the possible link to China when Malaysia calls for “the exercise of self-restraint … and avoid the threat or use of force in the South China Sea”, the tone of the statement was diplomatic and almost perfunctory. It is markedly different from the strong statement released by its Foreign Ministry (and subsequently retracted) at the conclusion of the Special ASEAN-China Foreign Ministers Meeting in Kunming earlier this month.
Tellingly the Malaysian senior political leadership – the prime minister, the deputy prime minister, the foreign and defence ministers – have not spoken publicly on the matter.
Malaysia’s muted response is understandable when viewed in a larger domestic and international context:
First, Malaysia has taken great pains not to antagonise China – Kuala Lumpur’s largest trade partner since 2009. Beijing’s deep pockets has also reached far into the corridors of power in Putrajaya as China emerged for the first time in 2015 as Malaysia’s largest foreign direct investor. In the last quarter of 2015, China invested US$4 billion to acquire stakes and assets linked to the troubled state-owned investment firm 1MDB.
Second, Malaysia’s South China Sea policy is complicated by the lack of inter-ministry consensus among the Ministry of Foreign Affairs, Ministry of Defence and the Malaysian Maritime Enforcement Agency (MMEA). The Ministry of Foreign Affairs – led by a Sabahan politician – has taken a forthright approach towards affirming Malaysia’s position in the South China Sea, which explains the strong and strident language supported by Malaysia in ASEAN documents. It finds support within the MMEA, which reports to the Prime Minister’s Department. However, the Ministry of Defence has taken an “arms-length” approach toward the disputes. The disconnect between these institutions were laid bare when the Minister of Defence, Hishammuddin Hussein refuted the assertion by the Minister in the Prime Minister’s Department, Shahidan Kassim that more than 100 Chinese fishing vessels were spotted near Luconia Shoals, located about 100km off the Sarawak coast.
Third, Malaysia does not stand to gain any strategic mileage from issuing a strong statement. The ruling of illegality of the nine-dash line map effectively puts Malaysia in an advantageous position as the two most contentious points – James Shoal and Luconia Shoal – falls within Malaysia’s 200 nautical miles exclusive economic zone (EEZ).
Whilst Malaysia is not a party to the arbitration, its communication with the Arbitral Tribunal on 23 June 2016 was highlighted in the tribunal’s award. Malaysia’s intention as documented in paragraph 635 of the award asserts that “Malaysia recalls that it claims sovereignty over a number of features in the South China Sea and may also have overlapping maritime entitlements (including an extended continental shelf).” No doubt this is a legal strategy to preserve Malaysia’s sovereign rights, the timing of the communication nevertheless, raises some questions. The arbitral tribunal rightly questioned the timing of the communication as Malaysia had observer status in the proceedings since 25 June 2015. Why did it take Malaysia that long to raise such an important legal issue? Why was it raised towards the end of the tribunal when the ruling was expected to be handed out in July 2016 or soon thereafter?
The PCA ruling will not have a material impact on Malaysia’s SCS policy, which will be guided and dictated by domestic imperatives and less so by external factors. However, the ruling provides a legal basis for Malaysia to stand its ground in the face of repeated Chinese assertiveness.
Dr Tang Siew Mun is Senior Fellow at the Regional Strategic and Political Studies Programme at ISEAS – Yusof Ishak Institute, where he is also concurrently Head of the ASEAN Studies Centre.
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