June 23, 2021

On June 1, the Malaysian Air Force issued an announcement stating that on May 31, 16 Chinese military transport planes were detected “suspicious activities” and entered Malaysia’s “exclusive economic zone” and Kota Kinabalu Flight Information Region (FIR), and did not comply with Malaysian air traffic control’s instruction to establish contact.

Malaysian Foreign Minister Hishammuddin Hussein referred to China's move as a "breach of Malaysian airspace and sovereignty." Chinese Embassy responded that the reported activities were part of routine flight training that "do not target any country" and "abide by international law."

Malaysia’s statement on this issue is problematic due to the following three reasons: First, the boundary of the exclusive economic zone claimed by Malaysia in the South China Sea is not clear and disputed by four other countries; second, even in the undisputed EEZ of a coastal State, civil and military aircraft of other countries enjoy the freedom to overflight. And third, Flight Information Region (FIR) does not affect the flight and exercise of military aircraft. The International Civil Aviation Organization (ICAO) has not made any mandatory regulations on the response of military aircraft to the coastal State in the FIR.

Malaysia started to claim the South China Sea in the late 1970s. On December 21, 1979, Malaysia published the "Map of Territorial Waters and Continental Shelf Boundaries of Malaysia," which included 12 maritime features in the Spratlys and declared the boundaries of its claimed continental shelf.

On April 25, 1980, Malaysia issued the "Proclamation of Exclusive Economic Zone" and began to claim 200 nautical miles of the exclusive economic zone. On December 12, 1982, Malaysia signed the UNCLOS and ratified it in 1996. At the same time as the ratification, Malaysia submitted a declaration in accordance with Article 310 of the Convention, stating that the provisions of the Convention do not authorize other States to carry out military exercises or maneuvers, in particular those involving the use of weapons or explosives in the exclusive economic zone without the consent of the coastal State.

In 2006, Malaysia promulgated the "Baselines of the Maritime Zones Act," which stipulated the geographical coordinate of base points should be published in the Gazette. In 2012, Malaysia promulgated the Territorial Sea Act, declaring the width of the territorial sea to be 12 nm.

However, so far, Malaysia has not announced its territorial sea baseline in the government Gazette. Therefore it is still not clear where the territorial sea and exclusive economic zone boundaries claimed by Malaysia are. Also, this part of the South China Sea, including the features are claimed by China, Vietnam, the Philippines, and Brunei.

Even in the undisputed EEZ of a coastal State, all countries enjoy the freedom of overflight. Looking back at the decades-long negotiation history of the Convention, States did not intent to put freedom of flying over the airspace of the EEZ under the jurisdiction of coastal States.

Therefore, flying activities are mainly regulated by the Chicago Convention and its annexes and other international aviation legal documents, rather than the domestic laws formulated by coastal States to exercise their sovereign rights and jurisdiction.

Flight Information Region (FIR) that the Malaysian Royal Air Force mentioned refers to a specified region of airspace that can provide flight information and alerting service. The International Civil Aviation Organization (ICAO) decides which coastal State is responsible for the operational control of a given FIR. It is designed to guarantee flight safety and has nothing to do with sovereignty and jurisdiction.

Also, it is worth noting that ICAO regulations and procedures only apply to civil aircraft instead of the military ones in international airspace. But all States have a responsibility to ensure that the operation of military aircraft does not affect the safety of civilian flights.

According to Malaysia Air Force, 16 Chinese aircraft are transportation planes. Those are designed to deliver supplies with no weapons mounted on them, thus not posing any military threat. Also, no mandatory ICAO rules and regulations require the response of a military aircraft to the coastal State in the FIR.

To build trust and confidence, avoid misjudgments, and prevent maritime conflicts, China and the United States signed the “MOU on Notification of Major Military Activities” in 2014. According to this memorandum, the defense department of the two countries should voluntarily notify each other of major military activities to strengthen confidence and mutual trust through information sharing.

In order to enhance mutual trust on strategic and military security issues, coastal States of the South China Sea may also consider exploring the possibility of informing each other in advance of major military activities in existing regional multilateral mechanisms such as the Code of Conduct negotiation.

This year marks the 47th anniversary of establishing diplomatic relations between China and Malaysia and the 30th anniversary of the establishment of dialogue relations between China and ASEAN. Managing differences in the South China Sea and enhancing strategic mutual trust is still the key to the long-term and steady development of the relationship between China and ASEAN countries.

Yan YAN (Dr), Director of Research Center for Oceans Law and Policy, National Institute for South China Sea Studies (NISCSS), China