Category Archives: Malaysia

Commentary: Indonesia’s New Year’s message to China over Natunas dispute: A game changer?

By Romel Regalado Bagares

A statement issued on  New Year’s Day by the Indonesian Ministry of Foreign Affairs against alleged Chinese encroachments over the Indonesian Exclusive Economic Zone (EEZ) in the Natunas may prove to be a diplomatic and legal game changer in the increasingly volatile South China Sea.

For the very first time, a third party Association of Southeast Asian Nation (ASEAN) member- state invoked the landmark 2016 arbitral ruling in the South China Sea case filed by the Philippines three years earlier against Chinese expansionist moves in the region.

Indonesia’s broadside came following alleged incursions by Chinese coastguard vessels in the Natuna Sea, which lie nearly 1,100 kilometers south of the Spratlys in the South China Sea.  It features an archipelago of 271 islands and resource-rich waters.

China claims the Natunas is subject to its jurisdiction  under the UN Convention on the Law of the Sea  (UNCLOS) as “relevant” waters that had been visited by Chinese fishermen since time immemorial.

A blunt rebuff

The Indonesian MFA however said the Chinese claim is without any legal basis under the UNCLOS, adding that its claims of historic rights have all been repudiated by the Permanent Court of Arbitration’s 2016 ruling.

In addition, Indonesia bluntly rejected any suggestion of bilateral talks with China to delimit what the latter says are overlapping maritime jurisdictions, as there are none to speak of.  .

“Based on UNCLOS 1982, Indonesia does not have overlapping claims with the PRC [People’s Republic of China] so that it is not relevant to have any dialogue on maritime boundary delimitation,” the four-paragraph Indonesian statement said in part, according to a rough translation of the original Bahasa.

Too, under UNCLOS rules, recognition by Indonesia of any maritime overlap forecloses any resort  to the landmark treaty’s compulsory dispute mechanisms successfully used by the Philippines to bring China to arbitration, despite the latter’s fierce objections.

Thus,  the Indonesian statement may also be  sending China a subtle signal that any further unwelcome acts in the Natunas  may force Indonesia’s hand to steer for a direction Beijing would not want to take itself – yet another arbitration case where it will have little control of the outcome.

China appears to expand the exception outlined by PCA to the UNCLOS regime that allows traditional  fishing in territorial waters by competing claimants (as it so held on the question of Scarborough Shoal claimed by both the Philippines and China).

But notably, the Arbitral Court stopped short of saying traditional – or subsistence – fishing may also apply to the EEZ, a ruling that comports with established international norm on the question.

What UNCLOS does allow in the EEZ is fishing for the “surplus catch” by other states outside of the coastal state’s Total Allowable Catch (TAC), a scientific measure of that state’s fishing capacity, but only with the latter’s consent.

Ironically,  during the UNCLOS negotiations, China  itself had questioned the allotment of a surplus catch in the EEZ  for other states, saying that developing countries should be allowed to keep all fishery resources for itself,  as noted by the PCA in its judgment on the Philippine arbitral case against China.

In any case, Chinese poaching in the EEZs of its ASEAN neighbors can hardly be considered subsistence fishing. Instead,  it often involves what experts call China’s “Second Surging Sea Force” network of large fishing fleets working in tandem with Chinese navy and Coastguard vessels.

A loud chorus from the ASEAN trio

Jakarta’s rebuff of Beijing forms part of an increasingly loud chorus of opposition to China’s expansionist moves in the South China Sea, as it joins formal moves by two other major economies –  Malaysia and Vietnam – to set aside the Chinese Nine Dash Line-claim in favor of accepted international rules.

In November last year, a top Vietnamese diplomat announced that his country is now seriously considering to follow Manila’s earlier lead to bring China to arbitral court over  repeated Chinese intrusions in Vietnam’s Vanguard Bank, an oil-rich section of its EEZ.

Malaysia followed this up in late December by filing with the United Nations a claim for an Extended Continental Shelf (ECS). It made the filing under Article 76 of the  UNCLOS, which allows a coastal state to claim the outer limits of its continental shelf beyond the 200-mile limit, for an additional 150 miles, under certain geological conditions. It is a legal move that also eats  substantially into the Chinese Nine Dash Lines.

On January 3, or two days after the Indonesian MFA’s declarations,  Malaysia’s own Ministry of Foreign Affairs issued a statement saying it does not fear Chinese reprisals over its ECS filing.

The three countries’  combined message should unsettle China, as it confirms Beijing’s failure to marshal support among the region’s biggest economic and political players – not counting the Philippines –  for its rejection of the PCA’s ruling striking its Nine Dash Line-claim.

Beijing, in utter disregard of the ruling, then embarked on a building spree – now largely completed – over maritime features declared by the PCA as part of the Philippines’ EEZ.

Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the Permanent Court of Arbitration proceedings at the Hague where the Philippine arbitral case against China was heard.  With the exception of Thailand, all the countries have a running maritime dispute with China.

During the PCA hearings in the Philippine case, Vietnam had as well filed a brief supporting Manila’s case against China.

Ironically, with the election to office of President Rodrigo Duterte in June 2016, Manila has backpedaled on its stance towards China, opting to take a conciliatory route towards Beijing. Manila had filed the arbitral case under his predecessor, Benigno Aquino III’s administration.

Three years into his term, Mr. Duterte, in addition to his contradictory statements over the country’s arbitral case victory, has so far continued his policy of rapprochement towards China, despite it not sitting well with most of the  Filipino populace, not to mention, with his own military advisers.

ASEAN chairmanship change

New Year’s Day also triggered a change in leadership of the ASEAN under the regional grouping’s charter, with its chairmanship automatically vested for a one-year term with Vietnam, from Thailand’s in 2019.

Article 31 of the ASEAN Charter provides that “the Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.”

Vietnamese  chairmanship of the regional grouping may also prove pivotal to current ASEAN efforts at crafting a binding Code of Conduct regulating the actions of rival claimants in the region.

This – and the ASEAN trio’s open defiance of China on the South China Sea question – may yet push Mr. Duterte to rethink his own options towards Chinese occupation of maritime features that, according to  the PCA, are part of the Philippines’ own EEZ.

 

This piece appeared in the Philippine Star’s online edition on  January 5, 2020.

 

 

 

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Filed under Bajo De Masinloc, China, International Law, ITLOS, Malaysia, Nine-Dash Line Claim, PCA, Scarborough Shoal, South China Sea, Uncategorized, UNCLOS

The Cebu Declaration for Free Expression in Southeast Asia

CebuDeclarationLawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.

One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.

More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”

“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”

Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.

“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).

The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.

“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.

“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.

He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia. “But it is important that cases are filed to have an historical record of wrongs brought to court.”

Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.

“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.

Delegates from Myanmar also highlighted their “Yellow Ribbon campaing” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .

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Cebu Declaration  on the  Right to Freedom of Expression as a Fundamental Human Right  and its importance to the Southeast Asia region

WHEREAS, we are non-governmental organizations in Southeast Asia working for the protection and promotion of human rights, especially for the right to freedom of expression;

WHEREAS, recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia;

WHEREAS, we see an urgent need in Southeast Asia to utilize remedies under domestic and international law against these threats to freedom of expression, for we want to establish an edifice for free expression that will serve not only this generation but the future generations of Southeast Asians;

THEREFORE:

WE DECLARE that the right to freedom of expression is essential in the pursuit of truth, justice, equality, and accountability; but more importantly, freedom of expression is a fundamental human right since as human beings we yearn to express our own humanity.

WE DECLARE that in order to animate our core belief in the right to freedom of expression as a fundamental human right, our individual members shall commit not to prosecute criminal cases against anyone for something he or she expresses except in accordance with international human rights norms, and shall advocate for the repeal of criminal libel laws.

WE DECLARE that the right to freedom of expression is universal, but that the methods for its advocacy and protection are contextual; hence, we shall raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.

 WE DECLARE that the economic and social integration of Southeast Asia requires the respect and protection of freedom of expression in our region consistent with international human rights norms. Freedom of expression cannot be bargained for purely economic, social or political considerations. Moreover, a violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region; the protection of freedom of expression is an obligation of the whole region under international law.

WE DECLARE that the rule of law, equality, non-discrimination, access to justice and fair trial are essential to the protection and promotion of freedom of expression.

WE DECLARE that to be more effective advocates for freedom of expression and the rule of law in Southeast Asia, we resolve to work together in unity of purpose, action, spirit and passion, and WE THEREFORE ESTABLISH the Advocates for freedom of expression Coalition-Southeast Asia to advance freedom of expression across Southeast Asia consistent with international human rights norms, through strategic litigation, education, training and advocacy.

LASTLY, WE DECLARE that in establishing this freedom of expression coalition, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world.

Signed this 27th day of September 2015, in Lapu-Lapu City, Mactan Island, Cebu, Philippines, by our duly authorized representatives

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Filed under Burma, Free Expression, Human Rights, International Law, Internet, Libel, Malaysia, Thailand, Uncategorized

Initial thoughts on the Sabah standoff

For background on the current Sabah standoff, click here.

My initial thoughts:

sabahWhat the Philippines must effectively address in its claims to historic title over Sabah: the right to self-determination, which is customary and is subject of both erga omnes partes and erga omnes omnium obligations.

In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:

“13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary-General of the United Nations was entrusted under the Manila Accord of 3 1 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: “[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives” (quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, Eigteenth Session, UN doc. No. AIPV. 121 9).

14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 je) Non-Self-Governing Territory (Note by the Secretary-General, Political ancl Consfitutionak Information on Asian Territories under United Kingdom Administration, UN doc. NO. Al54021 Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization juris- diction (see Yearbook of the United Nations 1964, pp. 41 1-435, which omits North Borneo from the Cornmittee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self-determination.

15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic
claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”

Click here for the link to the full text of Judge Franck’s separate opinion.

I am not saying the Philippine case is hopeless. I am just saying there’s a very big legal hurdle to its claim to sovereignty over Sabah that needs serious consideration.

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Filed under Decolonization, Malaysia, Philippines, Sabah, Self-determination, Sultanate of Sulu