HANKS to the New Straits Times for highlighting James Shoal in the continental shelf off Malaysia and permanently under 22m of water.
Unfortunately, recent activities in the area by a third power give the impression that James Shoal is a disputed territory.
The international law of the sea does not acknowledge shoals as land territories, unlike islands, rocks and low-tide elevations (LTEs). Islands are entitled to maritime zones, for example, territorial seas, exclusive economic zones (EEZs) and continental shelves. LTEs, on the other hand, belong to the coastal state in whose territorial sea it is located.
A permanently submerged feature is not entitled to any maritime zone and it cannot be appropriated. James Shoal is not an LTE or island. It belongs to the coastal state that owns the continental shelf where it is embedded.
We need to establish in which continental shelf the feature is embedded. Is it part of Brunei, China, Indonesia, Malaysia, the Philippines, Vietnam or Taiwan?
The law of the sea defines a continental shelf as being the natural prolongation of the land mass that extends into the sea for 200 nautical miles (nm) or 350nm under certain conditions. The law on continental shelf stipulates: “The rights of a costal state over the continental shelf do not depend on occupation, effective or notional, or in any express proclamation.”
James Shoal is more than 1,000nm from Hainan, 460 nm from Itu Aba (Taiwan-occupied since 1956) and more than 500nm from Pagasa/Thitu (Philippine-occupied). It is only 63nm from Batuan Likau, the nearest base point on the Sarawak coast, and within the 200nm of EEZ, Malaysia.
Since May 2009, Vietnam has acknowledged that its extended continental shelf in the Spratlys does not reach James Shoal.
James Shoal is outside Brunei’s continental shelf (vide Letter of Exchange, 2009) and outside Indonesia’s continental shelf (vide 1969 Treaty on continental shelf with Malaysia). Malaysia’s ownership of James Shoal is not due contiguity. It is based on customary international law and treaty law, and the exercise of effective jurisdiction.
With regard to the latter, Malaysia has, over the years, undertaken numerous activities with the intention to act as a sovereign that actually exercises effective jurisdiction over its continental shelf, including James Shoal.
The activities by the Malaysian authorities are extensive, peaceful, continuous and public in nature. They include erecting and maintaining a light buoy on a nearby feature (Parsons Shoal) on a 24/7 basis and regular issuance of Notices to Mariners.
Other activities include patrolling by the Royal Malaysian Navy (RMN) and Malaysian Maritime Enforcement Agency; surveys of the area by the National Hydrographic Division of RMN; publication and updating of charts; and, long-time undertaking of economic activities, including exploration and production of hydrocarbon resources in and around James Shoal.
Such activities over a long period is tantamount to establishing a titre de souverain over submerged features on its continental shelf, islands, rocks and LTEs.
BA Hamzah is with Department of Strategic Studies, National Defence University of Malaysia.