In October 2018, Malaysia unilaterally extended its
Johor Baru port limits into waters that Singapore claims as its territorial
sea. The area controls some traffic lanes into Singapore port and Singapore
strongly objected. In December it extended its own port limits to encompass
some of the disputed waters. This tit-for-tat revived and reinvigorated a long
dormant dispute that soon became linked to other bilateral issues and generated
increasingly acrimonious verbal exchanges. Each accused the other of
hyping the issues and stoking the fires of nationalism for domestic political
gain.
Some
observers say the bilateral relationship is now the worst it has been in two
decades.
What is the legal and political context of the dispute and what are the
possible outcomes and their implications?
Despite claims by both that they are clearly in the right, the legal
history and context are contested and confused. In 1979 Malaysia published a
map of its maritime boundaries including in the area in question. Singapore
never accepted this unilateral claim. In 1995 Singapore and Malaysia concluded
an agreement that delimits “Precisely the Territorial Waters Boundary in
Accordance with the Straits Settlements and Johore Territorial Waters Agreement
1927”.
But this agreement only covers a small portion of the waters in question
although it could be a starting point for negotiations for a complete boundary.
In 1999, Malaysia published amended Johor Baru port limits which track its
claim on the 1979 map. However, Singapore claims that it has long exercised
sovereignty and jurisdiction over the disputed waters without protest from
Malaysia, and moreover, that the 2018 Johor Baru port limits extend even beyond
the 1979 claim.
Around the time that this dispute surfaced, Malaysia objected to new
flight landing procedures that Singapore proposed for its Selatar Airport. It
said that the approaches over Johor will “stunt development” around Malaysia’s
Pasir Gudang industrial district. Singapore claimed that it had administered
the airspace since 1974 under an agreement with Malaysia and that the new
regulations simply codify existing flight paths. Stiffening its position,
Malaysia declared the air space in question to be a restricted military
training area thus prohibiting its use by others without its permission. Some
suspect there is or will be a political linkage between the two issues. The two
neighbors subsequently agreed to suspend their respective actions regarding the
air space for a month.
The political context of these disputes harks back to Malaysia’s 1965
expulsion of Singapore from the Federation of Malaysia. Since then, Singapore
has been a Chinese majority city-state surrounded by sea and land controlled by
Malay majority neighbors. It has thus maintained a strong political phobia of
being bullied or worse by them. As Singapore’s Foreign Minister Vivian
Balakrishnan observes, “As a small state with limited resources, the quest for
security and resilience has been “a constant, relentless imperative” since
independence”. https://www.straitstimes.com/politics/spore-to-discuss-issues-with-kl-calmly-but-will-guard-its-turf-vivian
Despite strong personal and economic ties, they have become competitors
and even intense rivals in some spheres. Their military relations remain
fraught with mutual suspicions.
Perhaps the most biting comment on the disputes came from retired Singapore
diplomat Bilahari Kausikan. He believes that Malaysia has ” not given up – and
never will – trying to tame or domesticate Singapore because unless they do so,
the intrinsic shortcomings of a system based on the dominance of a particular
race will be highlighted, particularly since we do better with a different
system.” https://forums.hardwarezone.com.sg/eat-drink-man-woman-16/bilahari-rebuts-criticisms-singapore-mahathirs-party-strategist-rais-hussi
Perhaps this is so. But others might counter that Singapore will never
give up its smug sense of superiority over Malaysia because it transformed its
city state port located serendipitously on one of the world’s busiest straits
into a modern nation. These sentiments reveal the depth and breadth of their
respective national angsts regarding each other.
These disputes should be a tempest in a teacup for these two neighbors
and allies. But because of their bitter history, any bilateral dispute can
quickly escalate –as this one nearly did –and still could if either side
insists on an all or nothing solution.
For example, on 22 November, Malaysia issued a notice to mariners to
alert the shipping community to the new Johor Baru port limits. In response,
Singapore issued a circular instructing ship masters and owners to disregard
Malaysia’s notice. Then Singapore complained that Malaysian government vessels
have been continually intruding into Singapore’s territorial waters and some
netizens called for Singapore to expel them. Malaysia replied that it would not
remove the vessels until or unless the dispute was satisfactorily resolved.
Singapore’s Ministry of Foreign Affairs warned that “Malaysia will be held
responsible for “any untoward situations on the ground that arise from
deployment of its vessels.”
On 8 January, the two countries agreed to establish a working group to
study and discuss legal and operational matters with the objective of
de-escalating the situation.
news/Singapore/Malaysia-singaporepermanent-restricted-area-seletar-airport-11098662
This working group has a two months deadline to come up with mutually acceptable
solutions. This will be a challenge. The next day, after the Chief Minister of
Johor visited a Malaysian patrol craft in the disputed waters, Singapore
abruptly postponed talks on the issue. According to Singapore Defence Minister
Ng Eng Hen “Tensions and real risks increased during this incident”. https://www.straitstimes.com/singapore/singapore-agencies-told-to-exercise-restraint-over-intrusions-minister
Although the talks will go ahead, relations are tense and could get
worse despite ‘whistling by the graveyard’ by both sides. https://www.straitstimes.com/asia/se-asia/singapore-malaysia-relations-still-good-says-malaysian-foreign-minister
Further complicating matters, Singaporeans believe newly re-elected
Prime Minister Mahathir Mohamad, a historical nemesis for Singapore, is stoking
the competitive fires. According to Kausikan, “It is not an accident that
so many old bilateral issues – water, bridge, FIR [flight paths] and maritime
boundaries – have resurfaced after the change of government. The new
governing coalition is intrinsically unstable and held together by a 93 year
old man. ” However some Malaysian observers suggest that Singapore’s
robust response is a result of the People’s Action Party (PAP)’s fear of losing
votes in the upcoming election, and that it is making Malaysia and
Mahathir scapegoats to fan nationalism and unity.
The two countries had a previous bitter sovereignty dispute over the
ownership of Pulau Batu Putih/Pedra Branca. In May 2008, much to
Malaysia’s chagrin, the International Court of Justice decided in favor of
Singapore although Malaysia managed to salvage some face by being awarded a
couple of small rocks. Nevertheless, this legal defeat rocked Malaysia’s
domestic political scene and still sticks in its craw. To this day, the
Sultanate of Johor wants Pulau Batu Putih back. Although Singapore’s
legal victory has been respected by the new government, up to June 2018
Malaysia was considering appealing the verdict based on new found documents. Malaysia
is not likely to go this route again. Moreover several other countries object
to Malaysia’s claims in its 1979 map and compromise on these claims with
Singapore could be used against it by others.
What are the possible outcomes and their implications?
The first and worst possibility is continued vitriolic nationalist
rhetoric. This could be used by opposition in both countries to attack
their respective governments and force them to take firmer all or nothing
positions. Nationalism and racial antipathy in both countries runs deep
and wide and once ignited can easily spiral out of control forcing government’s
hand. This is dangerous and particularly worrying to Singapore’s leaders – as
it should be. As Balakrishnan said the disputes create “the risk of a
dangerous downward spiral of measures and counter-measures”. https://uk.reuters.com/article/uk-singapore-malaysia/singapore-says-malaysia-ties-face-downward-spiral-but-hopes-for-amicable-outcome-id
Singapore’s leaders are struggling to control the situation.
Malaysia’s leaders appear to be trying to do the same but their control of
popular sentiment is weaker than in Singapore.
At the other end of the spectrum, the two could reach a compromise –
either short or longer term. A short term compromise is in the
offing. They have agreed to disagree on the new status quo but to
deal with the issues in a “calm and constructive manner” and restrain their
physical actions and rhetoric while they negotiate. Perhaps this temporary
truce can be drawn out and the issues will be allowed to fade away– at least
from public view.
But as long as the boundary remains unsettled and jurisdiction
uncertain, the respective national responsibilities for enforcement of laws and
regulations will be confused. Kinetic conflict over misunderstandings remains a
possibility. Moreover the area could become a haven for polluting vessels,
waste disposal, smugglers, armed robbers and even terrorists. Even if the
boundary remains unresolved, an informal agreement could be reached that such
activities in the area can be regulated with a minimum of confusion. One
possibility would be for the two to establish a joint authority to manage the
disputed waters.
However, in the longer term there may well be a trade off in some
fashion between the maritime dispute and the airspace dispute. In one
scenario, Malaysia would maintain its maritime claim without Singapore’s
physical objections. But in turn, it would allow Singapore to continue –
with compromises or a sunset clause–to continue to manage airspace over its
territory.
One thing is fairly certain. Neither country is going to get all
that it wants. If one did, it would be a national embarrassment that
would stick in the national craw and cry out to be avenged. As former
Malaysian Foreign Minister Anifah Aman said “Let us not allow our egos to
destroy what we have built thus far”. https://www.freemalaysiatoday.com/category/nation/2019/01/17/dont-let-ego-destroy-ties-with-singapore-anifah-advises/
The two must compromise –and be seen to do so–for the well being of
their relationship for their future generations.
Mark J. Valencia
Mark J.
Valencia, is an internationally known maritime policy analyst, political
commentator and consultant focused on Asia. He is the author or editor of some
15 books and more than 100 peer-reviewed journal articles and Adjunct Senior
Scholar, National Institute for South China Sea Studies, Haikou, China
No comments:
Post a Comment