A tricky Ambalat land dispute ?

By Remy Majangkim, MA63 Activist, Researcher and Tutor


KOTA KINABALU: Good day, everyone, to understand the Ambalat land dispute, we need to look back in history, legal documents, and the United Nation Convention on the Law of the Sea (UNCLOS).

In the beginning, before the formation of Malaysia on 16 September 1963, we were the crown colony of the British Monarch. As a crown colony, the crown sees fit and gifted her colonies land beyond the sea called the Continental shelf.

The queen restored the land to the people of Sabah by enacting two crucial instruments, namely North Borneo Alteration of Boundaries Order in Council 1954. It was followed by the North Borneo Sarawak Alteration of Boundaries Order in Council 1962.

This instrument determines the location points (markers) the Continental Shelf extends. Now with the formation of Malaysia, the Queen relinquishes her colonies as interpreted in the Sabah State Constitution under article 49 “Succession to property”.

In Sabah Law, land underneath the sea is clearly noted in our Sabah Land Ordinance Cap 68 under article 4 (Interpretation) and Sabah Mining Ordinance 1960 in the same clause.
So does the Federation of Malaya have their own continental shelf? No, their status then was the British protectorate, as the Malay Sultan was still the head of State. Take, for example, the Kingdom of Brunei that only gained their independence on 1 January 1984.

They had applied with UNCLOS continental shelf on 5 December 1984 and finally ratified it on 5 November 1996. During these uncertainties and no-man’s land, the small land dubbed block L & M was explored by Malaysia to extract oils that produce 150000 or more barrels per day.

After her independence and application with UNCLOS, Brunei has regained her sovereignty in these blocks. The then Prime Minister, Tun Abdullah Badawi, saw fit to return these blocks to Brunei.

So what is the United Nation Convention on the Law of the Sea (UNCLOS)? It is a world body that regulates set forth for the members of the nation “State” on the matter of the sea. This includes mediate claims, disputes and land application (Continental Shelf or Economic Exclusive Zone). A very important thing to note is that UNCLOS were adopted in 1982, Malaysia signed it on 10 December 1982 and ratifies it on 14 October 1996. (See the date correlation with Brunei).

So is there a difference between the Economic Exclusive Zone (EEZ) versus the Continental Shelf? A legal term under UNCLOS Economic Exclusive Zone “is an area of the sea in which a sovereign state has special rights regarding the exploration and use of marine resources, including energy production from water and wind.”

For continental shelf it says “the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”

Here is the big difference between the two, the Economic Exclusive Zone only refers to the body of water on top of the continental shelf. As UNCLOS clearly stated, it did not include the subterranean assets, oils and minerals. Now,

it all comes in full circle during the Warisan State Government, the inclusion of the words Continental Shelf approved in Dewan Undangan Negeri and added into the Land Ordinance Cap 68 on 15 December 2018. Therefore, the land matters belong to the State of Sabah and its precious oil.

A very important thing to ponder, the British Monarch has gifted her colonies North Borneo & Sarawak their respective Continental Shelf in 1954 and UNCLOS was only adopted in 1982, that is 28 years before. In the case of Borneo, UNCLOS could not issue or draw up another Continental Shelf to replace the other as there is an existence of such an area.

But Malaysia has enacted the Continental Shelf Act 1966 but without any continental shelf at their disposal except for Sabah & Sarawak. As we remember, through history, our continental shelf was taken from the Borneo states after the declaration of emergencies due to the Part of the deadly racial riots on May 13, 1969.

These resulting in the longest emergency ordinance, which lasted for 42 years from 1969 to 2011. During these periods, our coastline reduced from 200 nm to 3 nm, under the essential order no 7, and continue to do so with the hasty bill called the Territorial Sea Act that is still based on the emergency provision that is supposed to be annulled after a 6-month emergency declaration null and void.

Now we are ready to dissect the Ambalat land dispute. The background begins with the Malaysia Indonesia Continental Shelf agreement that was signed on 27 October 1969. There are seven articles in the agreement and one particular one caught the interest, that is Art 4. Article 4
If any single geological petroleum or natural gas structure extends across the straight lines referred to in article I and the part of such structure which is situated on one side of the Said lines is exploitable, wholly or in part, from the other side of the Said lines, the two Governments will seek to reach agreement as to the manner in which the structure shall be most effectively exploited.

These were contentious issues that have been discussed recently by Malaysia and Indonesia. But wait, does the Federal Government have jurisdiction over the land situated in Sabah waters that are clearly our Continental Shelf? It is bad enough that our continental shelf was taken from us by the federal government and now based on the agreement with Indonesia, both States agreed on oil exploration in Sabah Waters together.
The G57 chairman, Datuk Zulkarnain Mahdar Assaffal, says the accusation made by Tungku Assemblyman in the recent sitting was baseless and malicious in nature.

He further reiterates that it only involves the Economic Exclusive Zone (EEZ). Did Tungku, state assemblyman Assaffal P Alian make a blunder in his assertion in Dewan Undangan Negeri?

I let that conclusion be for you to decide.

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