Maritime Institute of Malaysia director-general Datuk Cheah Kong Wai explains to EVANGELINE MAJAWAT why Singapore’s claim for Exclusive Economic Zone for Pedra Branca is on shaky ground

Q: Can islands and rocky outcrops claim territorial sea and exclusive economic zones?

A: Article 121(3) of the Law of the Sea states that "rocks which cannot sustain human habitation or economic life of their own" cannot claim EEZ or the continental shelf.

Q: What are the criteria for sustaining human habitation and economic life?

A: This means a habitable environment that allows humans to live independently based on resources available naturally. Humans should have access to basic necessities such as fresh water, without having to rely on sources from outside and also be able to carry out economic activities such as farming, fishing or livestock rearing.
Q: Is operating a lighthouse an economic activity?

A: It is not an economic activity. Rather, it is an act facilitating the safety of navigation, a requirement of Unclos (United Nations Convention on the Law of the Sea) on states bordering a strait.

Q: Would imposing a levy on ships that depend on the lighthouse for safety be an economic activity?

A: No. Levy for services provided by lighthouses, called light dues, are imposed only on ships that call at ports within the state.

Q: Based on initial assessment of Pedra Branca according to Unclos, is it an island or a rock?

A: Since natural sustenance of human habitation and economic activity is absent on Pedra Branca, Article 121 (3) of Unclos can be invoked to categorise it as a rocky outcrop. Therefore, it is not entitled to an EEZ.

Q: Is it viable for Singapore to lay claim to territorial sea and EEZ when Malaysia and Indonesia are less than 10 nautical miles away?

A: A joint technical committee comprising of experts from Malaysia and Singapore was established to address whatever issues that may arise because of overlapping claims.

Q: What happens when a state's territorial sea overlaps with a neighbouring country's waters?

A: The two states will carry out delimitation of the territorial sea usually through negotiations.

Q: What happens when negotiation fails?

A: Article 15 states that if both countries fail to reach an agreement, neither country is allowed to claim the 12 nautical mile territorial sea beyond the median line between the two states.

But exception is given "where it is necessary by reason of historic title or other special circumstances".

Disputing countries would refer their case to the International Court of Justice as a last resort.

Malaysia and Singapore referred Pedra Branca's case to the ICJ to settle sovereignty. The two parties did not ask the ICJ to address delimitation issues. Some countries such as the UK and Ireland have referred their case to the ICJ to settle sovereignty and delimitation disputes.