June 25, 2021

The developments relating to the recent incident between China and Malaysia over the flight training of 16 Chinese military transport aircrafts in the South China Sea (SCS) displayed the characteristics on how bilateral differences are managed. It shed lights on the observation of security issues in the South China Sea.

The incident

Information about the incident was first released by the Royal Malaysian Air Force (RMAF) on 31 May 2021. According to the RMAF, the 16 aircrafts were flying in-trail tactical formations at a distance of 60 nautical miles from each other. They flew through the Singapore flight information region (FIR) before entering the Malaysian Maritime Zone and flight information region (FIR). The RMAF launched an interceptor aircraft to conduct visual identification when the Chinese aircrafts went beyond the Malaysian FIR “towards” its national airspace. The map released by the RMAF indicated that the Chinese aircrafts flew past Nankang and Beikang Banks (Lucania Shoals in English) before turning back 60 nautical miles from Malaysia’s coast near Zengmu Banks (James Shoal in English). 

Positions 

For Malaysia, various voices were raised from the military to the opposition party. The RMAF said the incident was “a serious threat to national sovereignty and flight safety”. Malaysia’s opposition party Pakatan Harapan commented that the incident “raise(d) concern” and urged the government to have a clear plan to deal with it. Malaysia’s Foreign Ministry expressed its concerns, stating that “having friendly diplomatic relations with any countries does not mean that we will compromise our national security.” 

Chinese position was clarified through the diplomatic channel. To respond to the Press Statement of Malaysia’s Foreign Minister, the Chinese embassy in Malaysia stated that the Chinese military aircrafts were carrying out routine flight training and during the training, they did not enter the territorial airspace of any country and strictly abided by the international law. He further stated that "China and Malaysia are friendly neighbours, and China is willing to continue bilateral friendly consultations with Malaysia to jointly maintain regional peace and stability." China’s Foreign Ministry spokesman also emphasized that the military airplanes were within international law, and bilateral communications had been carried out relating to the matter.

Issues worth noting

First, the international law stipulates that a coastal state has sovereignty to its national airspace, which covers the airspace above its land territory, internal waters and the 12 nautical miles territorial sea. Obviously Chinese military aircrafts were quite far away from Malaysia’s sovereignty.  

Second, as noted above, the Chinese aircrafts went first through Singapore’s FIR, then towards Malaysia’s FIR. The FIR applies to civilian aircrafts, which, regulated by the International Civil Aviation Organization (ICAO), requires a civil plane to provide flight information to the designated authority in charge. Foreign state aircrafts including aircrafts used by the military are excluded from such regulations. Therefore, the Chinese military aircrafts were in line with international law, and “due regards” were given during the training process.

Management

The content of the exchange of words between the diplomats of both countries displayed that differences over the incident existed in the beginning. However, both sides were using diplomatic channels to deal with it. Emphasized were bilateral friendly relations and the importance of avoiding miscalculations in order to create a situation conducive to regional peace and stability.

For Malaysia, its Foreign Ministry is the focal agency to deal with the issue. Actions include issuing a statement over the incident on 1 June, and summoning Chinese Ambassador for explanation and handing over a diplomatic protest on 3 June. Meanwhile, a clear statement of intention was made on further discussions between two foreign ministers for “the best way forward in ensuring such incident will not recur in the interest of maintaining peace and stability” at the ASEAN-China Foreign Ministers Special Meeting on 7 June.

China’s embassy in Malaysia responded quickly and stated China’s position, through its statement and the Ambassador’s face-to-face communication with Malaysia’s Foreign Ministry. China expressed its intension to continue “bilateral friendly consultations". 

Implications

As Malaysian veteran politician former Prime Minister Mahathir observed, Malaysia and China “will not antagonise each other over such (a) matter”. It proves to be the case. China and Malaysia successfully managed their differences in the South China Sea. Several implications can be drawn from the incident and its management, which may enlighten future developments in the South China Sea.

First, due to the existence of overlapping claims relating to areas of the South China Sea, relevant claimant countries may have different perspectives relating to legal explanations and law enforcement. Hence there is a potential danger for incidents of perceived “violation” to happen relating to the South China Sea. In view of the long process for final settlement of maritime disputes, efficient communication and mutual management efforts play a very important role in avoiding misunderstandings and miscalculations. In the case of China and Malaysia, to have a bilateral mechanism in full swing will be beneficial to promoting understanding and transparency. Bilateral consensus was reached in September 2019 to establish a bilateral consultative mechanism on maritime issues (BCM) to manage differences and promote maritime cooperation. Further efforts are needed from both sides to make such a mechanism into a reality.

Second, promote maritime cooperation to enhance bilateral confidence at sea. Cooperation projects can be designed by the BCM to improve maritime awareness and build capacity. As the number of natural disasters and accidents (such as the missing Malaysia Airlines plane in 2014) is increasing, joint search & rescue training and undersea information sharing can be an example to kick off maritime cooperation.

Third, China and Malaysia take similar positions on military activities in its economic exclusive zone (EEZ). China considers military intelligence collection and surveillance in its near sea area as not peaceful use of the sea, therefore inconsistent with the 1982 United Nations Convention on the Law of the Sea (UNCLOS). When ratifying UNCLOS in 1996, Malaysia made a statement requiring consent when other States are to “carry out military exercises or manoeuvres, in particular those involving the use of weapons or explosives in the exclusive economic zone”. Both countries can coordinate in addressing such issues of mutual concern.    

       

Fourth, at the regional level, cooperation on promoting maritime safety and security will likely continue to be an area of cooperation in the ongoing consultation process on a code of conduct of the South China Sea (COC). Due to concern of traffic security, how to handle military activities of vessels and aircrafts need to be properly arranged. The Article 5(c) of the DOC states that the Parties “notify, on a voluntary basis, other Parties concerned of any impending joint/combined military exercise”. The ongoing COC consultation could further elaborate on this matter and make arrangements on military activities acceptable to China and the ten ASEAN member countries. 

Furthermore, both China and Malaysia have gone through colonial or semi-colonial experiences in their recent history. They attach great importance to national independence and are sensitive to threats to their national security. As China’s economic power grows to the second largest in the world and continues to grow, its neighbours are interested in and may become more sensitive to China’s interactions over issues relating to perceived national integrity and security. As one Malaysian scholar observed, the SCS issue has never been the focus of Malaysia’s politics, but strongly affects how Malaysians perceive China. This is an aspect of Malaysia’s foreign policy that China needs to take into consideration when it comes to the issues in the SCS, and it does not necessarily imply compromising China’s claims.

Li Jianwei is Director of the Research Center for Maritime Economy at the National Institute for South China Sea Studies, Haikou, China.

Ramses Amer is Associate Professor in Peace and Conflict Research and Associated Research Fellow, Institute for Security & Development Policy (ISDP), Sweden.