Dueling ‘Notes Verbales’

On Dec. 12, 2019, Malaysia filed a Note Verbale with the United Nations Secretary General asserting its extended continental shelf (ECS) claim from its coastline in North Borneo facing the South China Sea. The ECS refers to the area beyond the 200-nautical-mile exclusive economic zone of a coastal state. It is the second ECS claim filed by Malaysia in the South China Sea, the first being its joint submission with Vietnam filed on May 6, 2009.

The ECS claims of Malaysia are, under the United Nations Convention on the Law of the Sea, without prejudice to the ECS claims of other coastal states which may overlap with Malaysia’s ECS claims. The overlapping ECS claims must be filed with the UN Secretary General and settled through negotiation or arbitration. The latest ECS claim of Malaysia is yet another reminder to the Philippines to file its own ECS claims facing the South China Sea. The Duterte administration, however, does not intend to file any ECS claim for fear of offending China.

On March 6, 2020, the Philippines responded to this latest Malaysian ECS claim by stating in a Note Verbale that the Malaysian claim overlaps with the Philippines’ ECS claim for which the Philippines “intends to make a submission at a future time.” The Philippines’ Note Verbale, moreover, protested that the latest Malaysian ECS claim “is projected from portions of North Borneo over which the Republic of the Philippines has never relinquished its sovereignty.”

On Aug. 27, 2020, Malaysia responded by rejecting in its Note Verbale the claim of the Philippines to North Borneo. Malaysia, moreover, asserted that “Malaysia rejects the excessive maritime claims arising from the Kalayaan Island Group as asserted by the Republic of the Philippines as they have not conformed to Part IV of UNCLOS 1982 and have no basis under international law.”

Sadly, the Philippines and Malaysia are both grossly mistaken in their assertions.

First, the Philippines’ Sabah claim has nothing to do with the South China Sea dispute. The territory of the Sultanate of Sulu in North Borneo never faced the South China Sea but faced only the Sulu Sea and the Celebes Sea. This is clear from various 18th- and 19th-century maps of the territory of the Sultanate of Sulu in North Borneo. Thus, the Philippines cannot claim any maritime zone facing the South China Sea as successor to the territory of the Sultanate of Sulu in North Borneo.

Second, while the Philippines did claim under Republic Act No. 3046 straight baselines around its Kalayaan Island Group (KIG), the Philippines changed this by enacting in 2009 RA 9522 which classified the KIG as a “Regime of Islands.” Section 2 of RA 9522 expressly states that the baselines of the KIG “shall be determined as ‘Regime of Islands’ xxx consistent with Article 121 of the United Nations Convention on the Law of the Sea.” This abandoned the straight baselines embodied in RA 3046.

The Philippines informed the arbitral tribunal at The Hague of the enactment of RA 9522 in this manner: “The Philippine Supreme Court confirmed the constitutionality of Republic Act No. 9522. In a decision handed down in 2011, the Philippine Supreme Court held that the Philippines had no alternative but to adopt the maritime claims reflected in the Act because this was ‘in conformity with UNCLOS III.” In its Award of July 12, 2016, the arbitral tribunal stated, “In the Tribunal’s view, any application of straight baselines to the Spratly Islands in this fashion would be contrary to the Convention.” This is a fair warning to China, which has threatened to declare straight baselines to enclose its claim to the entire Spratlys, in the same way it has declared straight baselines to enclose the Paracels.

All these dueling Notes Verbales between the Philippines and Malaysia are sound and fury signifying nothing. The Philippines and Malaysia have apparently fallen prey to the intrigues of Chinese operatives, who have been active through their trolls, to inject the Philippines’ Sabah claim to the South China Sea dispute. In these dueling Notes Verbales, both the Philippines and Malaysia lost. China won, preventing two Asean states encroached by its nine-dash line from forming a united front.

[email protected]