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Malaysia’s Legal Warfare vs China: Prospects and Challenges in the South China Sea

Feb 04 , 2020

Already boasting the world’s largest naval fleet, Chinese President Xi Jinping sought to end the year in style with formally launching the country’s first domestically built aircraft carrier, Shandong, in southern island of Hainan. 

Malaysia’s bolt from the blue submission of its extended continental shelf claims to the United Nations, however, chipped away at the festive mood surrounding Xi’s formal launching of the Chinese-built carrier. In a furiously-worded response, Beijing accused its neighbor of "seriously infring[ing] on China’s sovereignty, sovereign rights and jurisdiction in the South China Sea," where "China has historic rights” beyond dispute. 

The Southeast Asian country’s surprising decision to seek third party assistance to reinforce its claims in the South China Sea portends a hardening stance among smaller claimant states, especially Vietnam but also the Philippines. Despite its growing naval might, China faces stormy waters ahead as the United States and its regional partners seek to constrain its maritime ambitions in the Western Pacific. 

The Malaysian Maverick 

Thanks to a systematic military modernization program, China is now in the possession of one of the world’s largest frigates (Type 055) and largest coast guard vessels, not to mention a new generation  of nuclear submarines and an armada of maritime militia forces. 

Over the next decades, China aims to develop up to 6 aircraft carries with increasingly sophisticated features. A third, with larger aircraft hosting capacity, is reportedly under construction. 

Today, China is the only Asian power that belongs to an exclusive club of nations, including the United States, the United Kingdom, and Italy, with two operational aircraft carriers. Despite its massive strides, Beijing faces a concerted pushback in its near neighborhood. 

Throughout the past year, one leader has emerged as the most vocal critic of China’s rising power. The Malaysian Prime Minister Mahathir Mohamad, who pulled off an electoral tsunami by largely tapping into anti-China sentiments at home, has openly criticized China’s overseas infrastructure projects. 

"[If] [w]e borrow huge sums of money, if you cannot pay money, you'll be under the influence or the direction of the lender [China]... If you cannot pay your debt, you [will] find yourself subservient to the lender," the Malaysian prime minister told me earlier this year, when asked about the perils of welcoming large-scale Chinese investments.

"If you have the capacity to borrow, it must be because we can repay. But when you borrow money which we cannot repay, you are endangering your own freedom," he added. 

Following a year of intensive negotiations, he managed to not only secure large discounts and adjustments in big-ticket Chinese infrastructure investments in Malaysia, but also compel China to reexamine its Belt and Road Initiative (BRI) altogether. 

Amid a gathering storm of global criticism, partly roused by Mahathir’s complaints, China announced a new approach to the BRI, with greater emphasis on environmental and debt sustainability. In response, Mahathir immediately recalibrated his rhetoric on China, reiterating longstanding friendship between the two countries. 

"Malaysia is a friend of China. We believe in being business friendly to all countries in the world," the Malaysian leader said, adopting a completely different tone during the Belt and Road Forum for International Cooperation (BRF) in Beijing in mid-2019. 

"We are a friendly country, a friend of China, and see a great future for Malaysia-China relations," he added. As soon as Mahathir secured his objectives on the economic front, however, he has shifted his focus to geopolitics, namely in the South China Sea. 

Concerted Pushback 

Malaysia’ submission of extended continental shelf claims to the United Nations Commission on the Limits of the Continental Shelf (CLCS) is curiously dated 2017, meaning it was prepared years earlier but not filed for certain reasons by the previous administration. 

It also means that the submission was prepared only months following the Permanent Court of Arbitration (PCA)’s announcement of the Philippines’s compulsory arbitration award against China. The final ruling nullified much of China’s expansive claims in adjacent waters, including its doctrine of ‘historic rights’.  

And even more interestingly, the submission took place only weeks after Vietnam threatened third party arbitration against China following a months-long naval standoff over the Vanguard Bank in the South China Sea. 

As a new bipartisan consensus against China takes shape, the United States has regularized its increasingly daring Freedom of Navigation Operations (FONOPs) against Beijing, frequently deploying multiple warships well into the 12 nautical miles of Chinese-occupied islands in the area. 

Meanwhile, the US Navy has also warned of a “more muscular” response to China’s usage of para-military forces in the South China Sea, while reiterating its commitment to aid regional allies, especially the Philippines, in an event of conflict (with China) in the area. 

To top it all, the US Coast Guard (USCG), for the first time since the end of Cold War, has joined the scramble in the Western Pacific, now participating in the Pentagon’s FONOPs operations against China, contributing to maritime defense aid across Southeast Asia, and expanding expeditionary deployments and joint drills with East Asian partners.

Thus, Malaysia’s latest submission should be viewed within the context of a more concerted pushback by the US and regional partners against an ascendant China. 

Legally, it builds on an earlier joint submission with Vietnam in 2009 -- a controversial move that provoked China into adopting a tougher stance in the South China Sea, starting with the first formal announcement of its ‘nine-dashed-line’ claims in the contested waters. 

While the previous submission sought to reinforce Malaysia’s claims in the southwestern regions of the South China Sea, its latest submission, in turn, pushes the country’s claims northward into the heart of the strategic basin. 

 “When we come against a very powerful [force] we need to find other ways of dealing with the problem rather just open confrontation,” Mahathir told me earlier this year, signaling his multi-faceted strategy in dealing with the rise of China. “It is important for China to take notice of other views and perceptions.”

With Vietnam assuming the ASEAN chairmanship in 2020, and the US enters a contentious presidential elections amid growing anti-China sentiment in Washington, Malaysia is betting on growing efforts to constrain Beijing’s maritime ambitions.

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