Malaysian Prime Minister Mahathir Mohamad recently said that Malaysia might be forming a "small island" by enlarging Middle Rocks, although no decision has been made yet.

Middle Rocks consists of two clusters of rocks some 250 metres apart which are linked by a jetty. It has a lighthouse and a helipad.

The International Court of Justice (ICJ) classified it as a maritime feature "consisting of several rocks permanently above water".

On the other hand, Pedra Branca was classified as a "granite island".

It has a lighthouse, a military rebroadcast station, a helipad, a desalination plant and a communications tower.

Experts Today interviewed say that Malaysia is trying to re-assert its sovereignty and manage its domestic audience in the wake of dropping its bid to challenge the 2008 ICJ ruling that awarded Pedra Branca to Singapore.

What can M'sia legally do to Middle Rocks?

Here's what.

Territorial waters

Singapore's Defence Minister Ng Eng Hen said on Sunday, June 3, that Malaysia's development plan is "completely legitimate, as long as it complies with international law".

Experts also said that developments on Middle Rocks are allowed as long as they do not breach the United Nations Convention on the Law of the Sea (UNCLOS) or encroach onto Singapore's territorial waters.

But what are territorial waters?

Territorial waters are coastal waters up to a maximum of 12 nautical miles (22.2km) which are considered part of the sovereign territory of a state, although civilian foreign ships are allowed innocent passage through it.

Middle Rocks is entitled up to 12 nautical miles of territorial waters around it.

Delimitation of maritime boundaries

However, with Pedra Branca being just one kilometre away from Middle Rocks, territorial waters between the island and Middle Rocks is up for negotiation. Both Singapore and Malaysia have yet to decide how to delimit the maritime boundary between Pedra Branca and Middle Rocks.

As the ICJ had not been mandated by Singapore and Malaysia to draw the line of delimitation with respect to their territorial waters, a Malaysia-Singapore Joint Technical Committee (MSJTC) was set up for this purpose.

But according to Malaysia, the MSJTC reached an impasse in November 2013. In response, MFA said the ICJ judgment was final and without appeal.

Now that Malaysia has accepted the sovereignty of Pedra Branca, maritime delimitation can take place -- the process can only start when sovereignty over relevant islands or rocks is undisputed.

However, delimitation of maritime boundaries is a tricky business, with many factors to consider.

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No EEZ for Middle Rocks 

Should Malaysia go ahead with its plan, the island formed from Middle Rocks will be an artificial island.

Artificial islands are not considered real islands that are formed naturally.

And why is this distinction important?

This is because under UNCLOS, artificial islands are not considered islands and do not get a 200-nautical mile Exclusive Economic Zone (EEZ).

Article 60(8) of UNCLOS says:

Artificial islands, installations and structures do not possess the status of islands.

They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

Both Pedra Branca and Middle Rocks do have a 12-nautical mile territorial sea.

Article 121 of UNCLOS says:

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

This means that while islands have all four -- territorial sea, contiguous zone, EEZ and continental shelf -- rocks such as Middle Rocks only get the territorial sea and the contiguous zone.

An EEZ allows for some perks like exclusive rights to fish or drill for oil in the EEZ.

Building facilities on Middle Rocks

Nevertheless, Malaysia is entitled to build its own facilities on the island -- it already built a maritime base called Abu Bakar -- and utilise them. Yes, even military facilities.

In the book Malaysia-Singapore: Fifty Years of Contentions 1965-2015 written by the leader of the Malaysian legal team for the 2007 ICJ case, Kadir Mohamad, Kadir wrote that the Middle Rocks pier was “to symbolise the equality of status between Middle Rocks and Pedra Branca and to display a continuous presence on the rock in future”.

Until a time UNCLOS is re-written (if that ever happens), Malaysia can expand Middle Rocks and build stuff on it for all they want. But it cannot claim anymore than what it is entitled to under the 2008 ICJ ruling that ruled the Middle Rocks as simply rocks and not an island like Pedra Branca.

Top image adapted via Singapore Memorial