As a coastal state, sub­ject to legally ac­cepted con­straints, Malaysia has sovereign ju­ris­dic­tion over its ter­ri­to­rial sea and EEZ

New Straits Times - - Opinion -

IN its 2017 Re­port on the Free­dom of Nav­i­ga­tion, the United States Depart­ment of De­fence (DoD) has crit­i­cised Malaysia and 21 coun­tries for ex­ces­sive mar­itime claims. The US main­tains that the claims have un­der­mined free­dom of nav­i­ga­tion and con­tra­vened cus­tom­ary in­ter­na­tional law.

DoD has faulted Malaysia on two grounds: re­quest­ing prior no­ti­fi­ca­tion for nu­clear-pow­ered ves­sels to en­ter the ter­ri­to­rial sea and not au­tho­ris­ing for­eign pow­ers to con­duct mil­i­tary ex­er­cises in its ex­clu­sive eco­nomic zone (EEZ). Other states re­quir­ing prior no­ti­fi­ca­tion for for­eign war­ships to ac­cess their ter­ri­to­rial seas are Al­ba­nia, China, Croa­tia, In­dia, Mal­dives, Malta, Oman, Pak­istan, South Korea, Thai­land and Viet­nam.

The ori­gin of Malaysia’s re­stric­tions on nu­clear-pow­ered ships and mil­i­tary ma­noeu­vres could be traced to a dec­la­ra­tion it de­posited with the United Na­tions in Septem­ber 1996 fol­low­ing rat­i­fi­ca­tion of the United Na­tions Con­ven­tion on Law of the Sea (UN­C­LOS).

Con­sis­tent with the Vi­enna Con­ven­tion on the Law of Treaties (1969), the dec­la­ra­tion reads, among oth­ers, that Malaysia “un­der­stands [that] the pro­vi­sions of the Con­ven­tion do not au­tho­rise other States to carry out mil­i­tary ex­er­cises or ma­noeu­vres, in par­tic­u­lar those in­volv­ing the use of weapons or ex­plo­sives in the ex­clu­sive eco­nomic zone with­out the con­sent of the coastal State”.

It is worth not­ing that the con­cept of EEZ is found only in UN­C­LOS, which the US has yet to rat­ify. Cur­rently, 27 states that rat­i­fied the 1982 UN­C­LOS dis­agreed with the US and have plainly dis­re­garded its in­ter­pre­ta­tion of the law.

The US and a num­ber of ma­jor mar­itime pow­ers in­sist that the “in­ter­na­tional uses” in Ar­ti­cle 87 of UN­C­LOS in­clude the right to con­duct mil­i­tary ma­noeu­vres in the EEZ, but state prac­tice on the mat­ter shows sig­nif­i­cant vari­a­tions.

These coun­tries point out to the ab­sence of pro­vi­sions in UN­C­LOS per­mit­ting for­eign coun­tries to con­duct mil­i­tary ac­tiv­i­ties in their EEZ. Sep­a­rately, they take the view that phrases in UN­C­LOS that men­tion the “rules of in­ter­na­tional law” in Ar­ti­cle 87 (1) and of “in­ter­na­tion­ally law­ful uses of the sea” in Ar­ti­cle 58 (1) do not re­fer to mil­i­tary ex­er­cises and ma­noeu­vres, es­pe­cially those in­volv­ing the use of weapons or ex­plo­sives, re­ferred to in the 1996 Malaysian dec­la­ra­tion at the UN.

As long as the ac­tiv­i­ties are mil­i­tary in na­ture and the ac­tiv­i­ties re­sult in the pro­duc­tion of data to serve the mil­i­tary needs and can be used against its se­cu­rity, they are not al­lowed in the Malaysian EEZ with­out its ex­pressed con­sent. Unau­tho­rised mil­i­tary ac­tiv­i­ties are deemed not “peace­ful” and prej­u­di­cial to Malaysia’s se­cu­rity.

The 1996 dec­la­ra­tion also stip­u­lates prior au­tho­ri­sa­tion for the pas­sage of pow­ered ves­sels and ves­sels car­ry­ing nu­clear ma­te­ri­als in its ter­ri­to­rial sea. This re­stric­tion is tar­geted at ves­sels tran­sit­ing through the ac­ci­dent­prone and traf­fic-con­gested Straits of Malacca.

Last year, more than 70,000 ves­sels passed through the strait. Flag states are to as­sume “re­spon­si­bil­ity for any loss or dam­age re­sult­ing from the pas­sage of such ves­sels within its ter­ri­to­rial sea”, which are re­quired un­der UN­C­LOS to “carry doc­u­ments and ob­serve spe­cial pre­cau­tion­ary mea­sures” when­ever they tran­sit through the strait.

In­ci­den­tally, Malaysia re­quires that deep-draught ves­sels and very large crude car­ri­ers (VLCCs) main­tain a 3.5m un­der keel clear­ance (UKC) dur­ing the en­tire pas­sage when they tran­sit the Straits of Malacca and Sin­ga­pore. These ves­sels must take pre­cau­tion­ary mea­sures when nav­i­gat­ing through the traf­fic sep­a­ra­tion scheme.

This pol­icy on deep draught ves­sels and VLCCs in the Straits of Malacca and Sin­ga­pore is spelt out in the Mer­chant Ship­ping (Col­li­sions Reg­u­la­tions) Rules for Ves­sels nav­i­gat­ing through the Straits of Malacca and Sin­ga­pore, Or­der 1984. This or­di­nance must be read to­gether with a let­ter dated April 28, 1982 to the pres­i­dent of the Third United Na­tions Con­fer­ence on the Law of the Sea re­quest­ing for deep-draught ves­sels and VLCCs to main­tain a min­i­mum 3.5m UKC through­out their pas­sage in the Straits of Malacca and Sin­ga­pore.

How­ever, strangely, nei­ther the 1982 let­ter to the UN nor the 1984 Rules for Ves­sels nav­i­gat­ing through the Straits of Malacca and Sin­ga­pore make any men­tion of pas­sage of nu­clear-pow­ered ves­sels or ves­sels car­ry­ing nu­clear ma­te­rial or other ma­te­rial of a “sim­i­lar na­ture” con­tained in Malaysia’s 1996 dec­la­ra­tion.

Malaysia con­tests the unau­tho­rised right of for­eign coun­tries to con­duct mil­i­tary ex­er­cises in its EEZ on the grounds of sovereignty, law and se­cu­rity. As a coastal state, sub­ject to some legally ac­cepted con­straints, Malaysia has ab­so­lute sovereign ju­ris­dic­tion in its ter­ri­to­rial sea and EEZ. Such ac­tiv­i­ties are a threat to the ter­ri­to­rial in­tegrity and po­lit­i­cal in­de­pen­dence of a sovereign state. (Ar­ti­cle 2.4 of the UN Char­ter and Ar­ti­cle 301 of the UN­C­LOS Treaty.)

Se­condly, there is no in­ter­na­tional law that ex­plic­itly pro­hibits Malaysia’s ju­ris­dic­tion over for­eign mil­i­tary ac­tiv­i­ties in its EEZ. Thirdly, unau­tho­rised for­eign mil­i­tary ac­tiv­i­ties can un­der­mine and sub­vert Malaysia’s se­cu­rity and they can be non-peace­ful in na­ture.

Be­sides, Malaysia views the 1982 UN­C­LOS as a treaty, ap­pli­ca­ble only to state par­ties. Al­though the treaty has come into force, not all the pro­vi­sions have the force of opinio ju­ris as cus­tom­ary in­ter­na­tional law, whereby states are obliged to obey, pre­scribe and en­force. The pro­vi­sion deal­ing with mil­i­tary ac­tiv­i­ties at sea is one of them.

As a coastal state, Malaysia has pri­mary re­spon­si­bil­ity and obli­ga­tion to keep or­der at sea in its ter­ri­to­rial ju­ris­dic­tion. Unau­tho­rised mil­i­tary ac­tiv­i­ties go against the very grain of this pri­mary obli­ga­tion and un­der­mines the rights of coastal states’ ju­ris­dic­tion in UN­C­LOS with re­gard to mil­i­tary ac­tiv­i­ties in the EEZ. RSIS

The writer is a lec­turer with the Depart­ment of Strate­gic Stud­ies, Na­tional De­fence Univer­sity Malaysia, Kuala Lumpur. He is also an ad­junct re­search pro­fes­sor, Na­tional In­sti­tute of South China Sea Stud­ies, Haikou, China


KD ‘Ma­hawangsa’ pa­trolling the Straits of Malacca. Malaysia is re­spon­si­ble for keep­ing or­der at sea in its ter­ri­to­rial ju­ris­dic­tion.

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