Introduction
There are several boundary disputes in Southeast Asia, some involving land boundaries and others maritime boundaries. Most of the countries involved in these disputes are member states of the Association of Southeast Asian Nations (ASEAN) (Amer, 2002), which comprises Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam (ASEAN, [2024]). Even though, ASEAN has been used as a negotiation forum, two litigations were settled by the International Court of Justice (ICJ), Malaysia v Indonesia and Malaysia v Singapore, and by International Arbitration, one was taken to International Arbitration, in Philippines v China Case. In this article, it is explored the dispute settlement in the Southeast Asia, analyzing the cases already judges in International Courts, and the dispute settlement mechanism as proposed by the ASEAN, in view of the importance of the Organization for the countries involving in the disputes. The article examines the dispute settlement mechanisms utilized by Southeast Asian states in maritime disputes, as well as the regional mechanisms available, in light of the persistence of unresolved disputes in the region. In this way enabling the understanding of how have ASEAN's dispute settlement mechanisms influenced the resolution of maritime boundary disputes among its member states, and what role have international courts played in this context.
Initially, the article focuses on disputes settled by the International Court of Justice (ICJ), followed by the Philippines v. China Arbitral Tribunal, and finally, the dispute settlement mechanisms of ASEAN.
ICJ’s role in Southeast Asia
The cases mentioned, such as Malaysia v. Indonesia and Malaysia v. Singapore, were settled by the ICJ. The case between Malaysia and Indonesia concerned the sovereignty over the islands of Pulau Ligitan and Pulau Sipadan (ICJ, [2017-2024]). The ICJ ruled in favor of Malaysia on 17 December 2002. In the dispute between Malaysia and Singapore, the sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge was contested. The ICJ's decision on 23 May 2008 awarded sovereignty over Pedra Branca/Pulau Batu Puteh to Singapore and sovereignty over Middle Rocks to Malaysia (ICJ, [2017-2024]).
Malaysia v Indonesia
In the Sipadan and Ligitan case, the Court decided on Malaysia's sovereignty over the islands based on the merit of developing economic activities (Syailendra, 2022). Initially, the parties relied on the 1891 Convention between Great Britain and the Netherlands that established the boundaries between Malaysia and Indonesia, then Great Britain and Netherlands colonies, respectively. However, the Court considered that the Convention did not establish an allocation line determining sovereignty over the islands; therefore, it could not be used as an allegation of sovereignty. The allegation of succession was also discarded by the Court, which turned to its 'effectivités' . The award considered Malaysia's activities on the islands, including measures taken by the North Borneo authorities to regulate the collection of turtle eggs on Ligitan and Sipadan, as a result of the Turtle Preservation Ordinance of 1917 and the construction of lighthouses in 1962 and 1963. According to the Court, neither the Netherlands nor Indonesia contested Malaysia's actions on the islands, and because of this, the sovereignty title was awarded to Kuala Lumpur (UN, 2002, ICJ, 2002).
This award ended one of the disputes between Indonesia and Malaysia, but others, such as the delimitation of maritime boundaries in the North Strait of Malacca, continue. The two countries settled the continental shelf in a bilateral agreement in 1969, however, they have not yet reached an agreement about the water column (Bernard, 2023).
Malaysia v Singapore
Another case adjudicated by ICJ in the region concerned the “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge” (Malaysia v. Singapore). The dispute involved a granite island where the Horsburgh Lighthouse is situated (Pedra Branca/Pulau Batu Puteh), some rocks that are permanently above water (Middle Rocks), and a low-tide elevation (South Ledge). The Court examined historical records and evidence regarding sovereignty over the island during the Sultanate of Johor and the colonial rule of the United Kingdom and the Netherlands, including the so-called Crawfurd Treaty . However, the Court affirmed that this act did not alter the original title to the area (ICJ, 2008).
The decision in favor of Singapore was influenced by the selection process for the lighthouse site, its construction, Singapore's legislation relating to the Horsburgh Lighthouse, Johor's fisheries regulation of 1860, and a 1953 letter from the British Adviser to the Sultan of Johor, which didn’t claim the island. Among other factors such as Singapore's investigation of shipwrecks and permission granted to Malaysian officials to survey the island's territorial waters without Malaysia's contestation, indicated Singapore's sovereignty over Pedra Branca/Pulau Batu Puteh. Thus, despite the Sultanate of Johor's pursuit of the original title, the United Kingdom and later Singapore exercised sovereignty over the island without contestation (ICJ, 2008).
Regarding Middle Rocks and South Ledge, Malaysia claimed both maritime features under Johor/Malaysian authority, while Singapore claimed them as part of Pedra Branca/Pulau Batu Puteh. The Court determined that the circumstances leading to Singapore's sovereignty over Pedra Branca/Pulau Batu Puteh did not extend to Middle Rocks. Therefore, the title to Middle Rocks remained with Malaysia, as the successor to the Sultanate of Johor. As for South Ledge, the Court ruled that this low-tide feature belongs to the state within whose territorial waters it is located (ICJ, 2008).
Although the sovereignty issue was resolved by the Court's decision, establishing maritime boundaries remains a challenging task. The overlapping territorial waters generated by mainland Malaysia, Pedra Branca (officially under Singapore's title), and Middle Rocks (Malaysia) complicate the demarcation of boundaries. Thus, while the ICJ resolved the sovereignty issue, other matters, such as the territorial sea boundaries around the maritime features, remain subjects for negotiation (Bernand, 2023).
Philippines v China Arbitral Tribunal
The arbitration case between the Philippines and China, as established by the UNCLOS, was a significant maritime dispute. The Permanent Court of Arbitration ruled in favor of the Philippines on 12 July 2016, stating that China's historic rights claim over maritime areas inside the “nine-dash line” have no lawful effect if they exceed what is entitled to under UNCLOS .
The arbitration concerned the role of historical rights, the status of certain elements in the area, and the maritime rights they entail. Concurrently, the Tribunal issued a ruling on specific actions deemed to be violations of the UNCLOS presented by the Philippines against China (PCA, 2016). Independent experts in navigation and coral reef environments were consulted due to allegations of navigation harassment of Philippines fishing vessels by Chinese surveillance ships and the construction of artificial structures on sandbanks, shoals, and other low-tide features (PCA, 2016; Ferse, Mumby, Ward, 2016; Singhota, 2016). Ultimately, while the Tribunal lacked jurisdiction over sovereignty issues, it made determinations regarding maritime zones. According to UNCLOS, China possesses no historical rights in the region, as such rights are not provided for in the Convention and are incompatible with the established maritime zones.
Consequently, the Chinese “nine-dash line” claim was found to be incongruous (PCA, 2016). However, China has not recognized the Arbitral Award, and the disputes continue to this day. Notably, in the first semester of 2024, new incidents occurred involving Philippine fishing vessels and Chinese surveillance ships, including the use of water cannons . Not only the Philippines but also several other Southeast Asian nations, including Vietnam, Brunei, Indonesia, and Malaysia, have unsettled disputes concerning maritime boundaries, islands, sandbanks, shoals, and low-tide features in the region (Haiwen, 2010). In addition, Figure 1 illustrates the locations of the disputes mentioned in the article, highlighting the areas which are involved in the ICJ awards and Arbitral Tribunal decisions.
Figure 1 – Disputes in Southeast Asia
Figure 1 - Disputes in Southeast Asia. Elaborated by the author |
These cases highlight the complex nature of dispute resolution in Southeast Asia and the role of international courts and arbitration in resolving such disputes. ASEAN's dispute settlement mechanism aims to provide a regional approach to conflict management, complementing the international legal framework provided by institutions like the ICJ and procedures provided for in UNCLOS, such as arbitration. The effectiveness of ASEAN's mechanism and its interplay with international rulings should contribute for the stability and unity of the region, especially considering the strategic importance of Southeast Asia in global geopolitics and trade.
ASEAN’s dispute settlement mechanisms
The Southeast Asian region has indeed witnessed a number of boundary disputes, encompassing both land and maritime issues. The Association of Southeast Asian Nations (ASEAN) has established its own dispute settlement mechanisms through the ASEAN Protocol on Enhanced Dispute Settlement Mechanism. The Senior Economic Officials Meeting (SEOM) administers this Protocol by establishing panels, adopting reports, and overseeing the implementation of recommendations. A panel is only established after attempts at consultations, good offices, conciliation, or mediation have been exhausted. A written notification is required, detailing whether consultations were held, identifying the specific measures at issue, and providing a brief summary of the legal basis of the complaint, thus presenting the problem clearly. However, the Protocol applies specifically to disputes arising under the consultation and dispute settlement provisions of ASEAN economic agreements (ASEAN, 2012). In cases of territorial and maritime disputes over sovereignty, ASEAN serves as a forum for negotiations among various actors, including non-member states such as China. Nevertheless, it is crucial to acknowledge the limitations of this process, as evidenced by the protracted negotiations of the non-binding Declaration of Conduct (DOC) for the South China Sea in 2002, and the ongoing negotiations for the binding Code of Conduct (COC), which have spanned the last two decades (Parameswaran, 2023).
It is important to note that many of the disputes have been resolved or effectively managed, not causing significant tension between claimants. The notable exception is the South China Sea disputes (Dang, 2022).
Conclusion
In conclusion, by exploring the dispute settlement case and mechanism in Southeast Asia it was possible observe the progression from the adjudication of disputes by the ICJ to the institutionalization of the ASEAN Protocol on Enhanced Dispute Settlement Mechanism signifies a pivotal evolution in regional conflict resolution. Although several disputes remain unresolved and awards contested, as exemplified by the Philippines v. China case, ASEAN's unwavering commitment to dialogue and adherence to legal norms continues. Moreover, States can also resort to external institutions and mechanisms as well, aiming to settle disputes amicably.
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