BEFORE the formation of Malaysia on September 16, 1963, Sabah was under the Crown Colony of the British Monarch, and the crown saw fit and gave 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 and followed by the North Borneo Sarawak Alteration of Boundaries Order in Council 1962.
These instruments determine the location points (markers) as to where the continental shelf extends.
The Queen relinquished her colonies as interpreted in the Sabah State Constitution under article 49 “Succession to property” following the formation of Malaysia.
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 as 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 January 1, 1984. They had applied with UNCLOS (United Nations Convention on the Law of the Sea) for continental shelf on December 5, 1984 and finally ratified it on November 5, 1996.
During these uncertainties and no-man’s land, the small areas dubbed blocks L and M were explored by Malaysia to extract oils that produce 150000 or more barrels per day.
Brunei regained her sovereignty over these blocks after her independence and application with UNCLOS. The then prime minister, Tun Abdullah Badawi, saw fit to return these blocks to Brunei.
UNCLOS is a world body that regulates for the members of the nation “state” on the matter of the sea. This includes mediating claims, disputes and land application (continental shelf or exclusive economic zone).
Malaysia endorsed UNCLOS on December 10, 1982 and ratified it on October 14, 1996.
EEZ does not include subterranean assets
So is there a difference between the Exclusive Economic Zone (EEZ) and the continental shelf?
A legal term under UNCLOS EEZ “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 is: “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 EEZ only refers to the body of water on top of the continental shelf. UNCLOS clearly states, it did not include the subterranean assets, oils and minerals.
The inclusion of the words “continental shelf” was approved in the Sabah State Legislative Assembly and added into the Land Ordinance Cap 68 on December 15, 2018 during the Warisan-led Sabah government. Therefore, land matters belong to the State of Sabah, including its precious oil located in the subsoil.
The British monarch gave the colonies of North Borneo (now Sabah) and Sarawak their respective continental shelves in 1954. UNCLOS was only adopted in 1982. They are 28 years apart.
UNCLOS could not issue or draw up another continental shelf to replace the other as there is an existence of such an area. Plus, Malaysia has enacted the Continental Shelf Act 1966 but without any continental shelf at their disposal, except for Sabah and Sarawak.
Putrajaya’s jurisdiction over Sabah’s continental shelf?
Sabah and Sarawak’s continental shelf were taken from the Borneo states after the declaration of emergencies due to the part of the deadly racial riots on May 13, 1969. It was also the longest emergency ordinance that lasted for 42 years from 1969 to 2011.
During this period, our coastline reduced from 200 nautical miles to 3 nautical miles, under the essential order no 7. This continues to be so under the Territorial Sea Act that is still based on the emergency provision that was supposed to be annulled after a six-month emergency declaration was null and void.
With the Ambalat issue now coming into focus, its background begins with the Malaysia Indonesia Continental Shelf agreement signed on October 27, 1969.
The government of Malaysia and the government of the Republic of Indonesia entered into an agreement dividing the continental shelf between the two countries.
Ratifications were then exchanged on November 7, 1969.
There are seven articles in the agreement and one particular one catches interest, which is Article 4.
Article 4 says that 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 are contentious issues that have been discussed recently by Malaysia and Indonesia.
But 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 Vibes, August 22, 2023
Remy Majangkim is a MA63 activist, researcher, historian and tutor based in Sabah
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