“Surrendering” Blocks L & M (Part II)

Previous blog on this.

Yesterday, an opposition politician once again railed away on the issue of Blocks L and M. He also posed a query that if the location of the 2 blocks was within Brunei’s sovereign territory in the first place, then “why did Malaysia award the blocks to Murphy Oil in 2003?”

Inasmuch as the issue of maritime territories are in relation to claims by nations, I think it is elucidating to draw the historical backdrop of how the current international legal regime that ambits over the Exclusive Economic Zone (EEZ) and the Continental Shelf came into being.

Maritime nations have been claiming their contiguous continental shelves since the early 1950s, and by the time of the 1958 Continental Shelf Convention, the International Court of Justice (ICJ) said that this have crystallised into international customary doctrine. It is the same with the EEZ under international jurisprudence: By the late 70s, the entitlement under customary international law of all States to claim an EEZ has been recognised, and has since been codified in the 1982 UN Convention on the Law of the Sea (UNCLOS). The EEZ offers a legal basis for exclusive coastal State rights over seabed resources within 200 miles of the coast that is additional or alternative to the rights arising from the legal entitlement to a continental shelf. Rights to sea-bed resources more than 200 miles from the coast, in contrast, can be based only on the continental shelf regime, because EEZ rights cannot extend more than 200 miles. In short, the rights of every coastal nation to an EEZ are recognised both in customary international law and also under UNCLOS. That position was confirmed by the decision of the ICJ in 1985. This means to say that a nation need not rely on the provisions of UNCLOS and need not be a party to UNCLOS before declaring an EEZ.

Malaysia give domestic force to the provisions of UNCLOS and the Continental Shelf Convention when she passed the 1966 Continental Shelf Act and the 1984 Exclusive Economic Zone Act. Since the Continental Shelf and the EEZ, as legal constructs, arose from relatively new international legal percepts, as coastal nations start to claim their new maritime jurisdictions, there are bound to be areas of overlapping and disputed claims. Territorial claims, of course, will remain as claims until boundaries are settled either by treaty (as is presumably will be agreed between Brunei and Malaysia regarding the L and M blocks) or adjudication (as was decided by the ICJ on the Pulau Sipadan-Pualau Ligitan case).

Boundaries between countries have long been a major source of international disputes, and international law has adopted the principles of acquiescence and estoppel in stabilising and adjudicating upon any such disagreements. Estoppel is a legal term referring to a series of legal and equitable doctrines that preclude a party from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of their representatives, or by own deed, acts, or representations, either express or implied. The flip side of this principle is of course acquiescence. These two are the principles that guide the actions and reactions of nations in disputed areas.

When Malaysia granted Murphy Oil exploration rights to the sea areas which it was disputing with Brunei in 2003, she was in fact not acquiescing to Brunei’s claims then. This act is similar to the action taken by Malaysia in the current and unresolved dispute with Indonesia in the Ambalat offshore area located in the Sulawesi Sea. Malaysia issued exploration licenses for two deep-water oil concession blocks to Petronas Carigali who was in partnership with Shell Group in 2005. This was probably in response (not acquiescing) to overlapping concessions (for oil exploration) granted a year earlier by Indonesia to Italian oil major ENI and US-based oil multinational Unocal.

When Malaysia won the Pulau Sipadan-Pulau Ligitan case, the ICJ, having rejected both sides’ arguments concerning treaty-based title to the islands, determined that Malaysia was able to demonstrate the stronger case in terms of effectivités – acts of administration demonstrating effective exercise of authority over the islands. In particular, Malaysia was able to refer to measures taken by colonial British North Borneo authorities to regulate and control the collection of turtle eggs on the islands, as well as their construction of lighthouses on Sipadan and Ligitan, and the subsequent operation of these lighthouses by Malaysian authorities post-independence. To the loss of Indonesia, the same Court held that when these activities were undertaken “neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest”. In other words, Indonesia acquiesced.

The Spratlys, a group of 96 islands, reefs, atolls and shallows in the South China Sea, is wholly or partially claimed by six nations namely Brunei, Malaysia, China, Vietnam, the Philippines, Taiwan and Vietnam. Before 1980, Pulau Layang-layang was just a small atoll but since then Malaysia had built it to become a large island with a naval base with an airport, a resort and a fisheries research station. Again, Malaysia took these actions to not acquiesce to other nations’ claims as well as demonstrate effectivités and strengthen its sovereignty claims.

The agreement on the L and M blocks, prima facie, looks like a two-nation agreement to settle peacefully a dispute over maritime boundaries, and as is the case in all agreements between countries, looks like there are rider clauses, one being the case of Limbang. On this, Brunei and Malaysia were probably much guided by the ASEAN spirit of cooperation as well as the intent of the Declaration on the Conduct of Parties in the South China Sea.

Finally, looking at the map where the 2 blocks are located, I am wondering if the Sarawak people have also been clamorous about “the surrender” since, geographically speaking, Sarawak could just as easily say that the 2 blocks are “theirs”.

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