Monday, January 21, 2019

The Malaysia-Singapore Maritime Spat: Legal And Political Context


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”. 

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.” 

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”.

Although the talks will go ahead, relations are tense and could get worse despite ‘whistling by the graveyard’ by both sides.

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”.

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”.

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