Ar­ti­cle 23 of UNCLOS says for­eign ves­sels have the right to ex­er­cise in­no­cent pas­sage through the ter­ri­to­rial sea of any state so long as they carry doc­u­ments and ob­serve spe­cial pre­cau­tion­ary mea­sures

New Straits Times - - Opinion -

THE fo­cus of Na­tional De­fence Univer­sity Malaysia Depart­ment of Strate­gic Stud­ies lec­turer Dr B.A. Hamzah’s com­men­tary on “For­eign mil­i­tary ex­er­cises in straits harm sovereignty” (NST, May 16) and “Un­charted ma­noeu­vres in wa­ters” (RSIS Com­men­tary, May 9) is the uni­lat­eral dec­la­ra­tion sub­mit­ted by Malaysia’s gov­ern­ment to the United Na­tions sec­re­tary-gen­eral in Oc­to­ber last year.

Kuala Lumpur de­posited its in­stru­ment of rat­i­fi­ca­tion giv­ing its of­fi­cial con­sent to be bound by the 1982 United Na­tions Con­ven­tion on the Law of the Sea (Unclos). The dec­la­ra­tion sets out the un­der­stand­ing of Malaysia’s gov­ern­ment on how some of the pro­vi­sions in Unclos should be in­ter­preted.

Para­graph 3 of the dec­la­ra­tion states that Malaysia un­der­stands that the pro­vi­sions of Unclos do not au­tho­rise other states to carry out mil­i­tary ex­er­cises or ma­noeu­vres, in par­tic­u­lar those in­volv­ing the use of weapons or ex­plo­sives, in an ex­clu­sive eco­nomic zone (EEZ) with­out the con­sent of the coastal state.

The writer gives a very broad in­ter­pre­ta­tion of the types of mil­i­tary ac­tiv­i­ties that can­not be car­ried out in Malaysia’s EEZ with­out its con­sent. He states that: “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 the se­cu­rity of Malaysia.”

He seems to sug­gest that any mil­i­tary ac­tiv­ity in the EEZ of Malaysia is deemed to be prej­u­di­cial to its se­cu­rity and pro­hib­ited and is sub­ject to its con­sent.

To de­ter­mine whether the po­si­tion of Malaysia ar­tic­u­lated by the writer is con­sis­tent with Unclos, it is nec­es­sary to un­der­stand the na­ture of the EEZ regime. Prior to Unclos, the oceans were di­vided into ter­ri­to­rial sea, over which a coastal state en­joyed sovereignty, and high seas, where all states en­joyed high sea free­doms.

Unclos cre­ated a new zone, the EEZ, in which coastal states are given the ex­clu­sive right to all the nat­u­ral re­sources within 200 nau­ti­cal miles (nm) of their coasts. At the same time, all states en­joy the right to ex­er­cise high seas free­doms in the EEZ of coastal states.

Un­like the ter­ri­to­rial sea, the EEZ is not sub­ject to the sovereignty of the coastal state. It is a spe­cific le­gal regime in which coastal states have sov­er­eign rights for the pur­pose of ex­plor­ing and ex­ploit­ing, con­serv­ing and man­ag­ing the nat­u­ral re­sources, as well as other ac­tiv­i­ties for the eco­nomic ex­ploita­tion and ex­plo­ration of the zone. At the same time, other states en­joy the free­doms of nav­i­ga­tion and over­flight and “other in­ter­na­tion­ally law­ful uses of the sea re­lated to those free­doms”, such as those as­so­ci­ated with the op­er­a­tion of ships and air­craft.

The United States and the ma­jor­ity of other states take the po­si­tion that the phrase “in­ter­na­tion­ally law­ful uses of the sea” in Ar­ti­cle 58 was in­tended to pre­serve in the EEZ the tra­di­tional free­dom to use the high seas for mil­i­tary pur­poses.

Malaysia’s dec­la­ra­tion states that other states have no right to carry out mil­i­tary ac­tiv­i­ties in Malaysia’s EEZ with­out the con­sent of the gov­ern­ment. The writer ar­gues that this po­si­tion is con­sis­tent with in­ter­na­tional law be­cause there is no rule of in­ter­na­tional law that ex­plic­itly pro­hibits Malaysia’s ju­ris­dic­tion over for­eign mil­i­tary ac­tiv­i­ties in its EEZ.

It is true that Unclos does not “ex­plic­itly” pro­hibit a coastal state from reg­u­lat­ing mil­i­tary ac­tiv­i­ties by for­eign war­ships in its EEZ. How­ever, Unclos pro­vides that the ju­ris­dic­tion of a coastal state in its EEZ is limited to eco­nomic mat­ters and other mat­ters that might prej­u­dice its eco­nomic rights in the EEZ.

It pro­vides that in the EEZ the coastal state has ju­ris­dic­tion as pro­vided for in the rel­e­vant pro­vi­sions of the con­ven­tion with re­gard to the fol­low­ing mat­ters: (a) the con­ser­va­tion and man­age­ment of the nat­u­ral re­sources, (b) the estab­lish­ment of ar­ti­fi­cial is­lands, in­stal­la­tions and struc­tures; (c) marine sci­en­tific re­search; and (d) the pro­tec­tion and preser­va­tion of the marine en­vi­ron­ment.

There is no pro­vi­sion in Unclos giv­ing coastal states ju­ris­dic­tion to gov­ern mil­i­tary or se­cu­rity mat­ters in their EEZ. In fact, Unclos pro­vides that ex­cept where coastal states are given ex­press ju­ris­dic­tion over spe­cific mat­ters in the EEZ, the high seas pro­vi­sions on ju­ris­dic­tion ap­ply in the EEZ. This means that for­eign war­ships in the EEZ are sub­ject to the ex­clu­sive ju­ris­dic­tion of the flag state and have com­plete im­mu­nity from the ju­ris­dic­tion of any state other than the flag state.

How­ever, un­der Unclos, the right of for­eign war­ships to con­duct mil­i­tary ac­tiv­i­ties in the EEZ of an­other state is not unlimited. Unclos pro­vides that in ex­er­cis­ing their rights in the EEZ, states must have “due re­gard” for the “rights and du­ties” of the coastal state. This means that for­eign war­ships can­not ex­er­cise their rights in a man­ner that would in­ter­fere with the sov­er­eign rights of the coastal state to the nat­u­ral re­sources in its EEZ.

They should not con­duct mil­i­tary ex­er­cises in the mid­dle of a rich fish­ing ground, oil field or sen­si­tive marine area as such ac­tiv­i­ties may harm the eco­nomic in­ter­ests of the coastal state. At the same time, it should also be noted that while for­eign war­ships are re­quired to have due re­gard to the “rights and du­ties” of the coastal state, they are not re­quired to have due re­gard to the “se­cu­rity in­ter­ests” of the coastal state.

Malaysia’s 1996 dec­la­ra­tion also states that nu­clear-pow­ered ves­sels and ves­sels car­ry­ing nu­clear weapons must com­ply with three re­stric­tions in its ter­ri­to­rial sea. First, such ves­sels must con­fine their pas­sage to sea lanes des­ig­nated by Malaysia. Sec­ond, such ves­sels must carry doc­u­ments and ob­serve spe­cial pre­cau­tion­ary mea­sures as spec­i­fied by in­ter­na­tional agree­ments. Third, un­til such time as the in­ter­na­tional agree­ments re­ferred to in ar­ti­cle 23 of Unclos are con­cluded

There is no pro­vi­sion in Unclos giv­ing coastal states ju­ris­dic­tion to gov­ern mil­i­tary or se­cu­rity mat­ters in their EEZ.

and Malaysia be­comes a party thereto, such ves­sels must ob­tain prior autho­ri­sa­tion be­fore en­ter­ing the ter­ri­to­rial sea of Malaysia.

The ar­ti­cle states that when ex­er­cis­ing the right of in­no­cent pas­sage through the ter­ri­to­rial sea, such ves­sels must carry doc­u­ments and ob­serve spe­cial pre­cau­tion­ary mea­sures es­tab­lished for such ves­sels by the In­ter­na­tional Mar­itime Or­gan­i­sa­tion and the In­ter­na­tional Atomic En­ergy Agency.

The ef­fect of ar­ti­cle 23 is to re­quire such ves­sels to com­ply with the rel­e­vant in­stru­ments when ex­er­cis­ing the right of in­no­cent pas­sage. It does not give a coastal state the power to deny pas­sage to ves­sels which com­ply with those re­quire­ments sim­ply be­cause the coastal state is not a party to those in­ter­na­tional agree­ments. If the ar­ti­cle were in­ter­preted in this way, it would give a coastal state the power to deny the right of in­no­cent pas­sage to such ves­sels in­def­i­nitely.

It fol­lows from the above anal­y­sis that the state­ments in Malaysia’s 1996 dec­la­ra­tion are not con­sis­tent with how the ma­jor­ity of states in­ter­pret the pro­vi­sions in Unclos. How­ever, it is not clear to what ex­tent, if at all, Malaysia has at­tempted in prac­tice to as­sert ju­ris­dic­tion over for­eign ves­sels as set out in its dec­la­ra­tion.

The writer has called for Malaysia to en­act leg­is­la­tion to en­able it to ef­fec­tively en­force the re­stric­tions on for­eign ves­sels that are set out in its dec­la­ra­tion. It would be un­wise for Malaysia to take such mea­sures. For ex­am­ple, if it at­tempted to re­strict the ac­tiv­i­ties of mil­i­tary ves­sels in its EEZ, other states are likely to make of­fi­cial protests, and the US is likely to con­duct free­dom of nav­i­ga­tion op­er­a­tions in Malaysia’s EEZ.

In ad­di­tion, a dis­pute could arise be­tween Malaysia and a state party to Unclos on the in­ter­pre­ta­tion or ap­pli­ca­tion of the pro­vi­sions in Unclos, and the other state could in­voke the com­pul­sory bind­ing dis­pute set­tle­ment pro­ce­dures, and in­sti­tute pro­ceed­ings against Malaysia. In such case, the court or tri­bunal’s de­ci­sion is un­likely to be to Malaysia’s lik­ing.

The writer also states that Malaysia views Unclos as a treaty that is ap­pli­ca­ble only to states par­ties. He im­plies that be­cause the US is not a party to Unclos, it has no right to in­voke its pro­vi­sions un­less the pro­vi­sions in Unclos have be­come cus­tom­ary in­ter­na­tional law.

How­ever, Unclos pro­vides that “all states” have the rights set out in Unclos, not just “states par­ties”. Fur­ther­more, the US takes the po­si­tion that the pro­vi­sions in Unclos on the EEZ and pas­sage rights in the ter­ri­to­rial sea are bind­ing on all states un­der cus­tom­ary in­ter­na­tional law. Con­se­quently, it has the right to chal­lenge the mar­itime claims of other states which it be­lieves are not con­sis­tent with Unclos.

The is­sue that must be con­sid­ered by Malaysia is whether it is in its na­tional in­ter­est to chal­lenge pro­vi­sions in Unclos that are ac­cepted by the vast ma­jor­ity of states, alien­ate a su­per­power, and risk be­ing hauled be­fore an in­ter­na­tional court or tri­bunal. The safer course of con­duct may be to let the dec­la­ra­tion re­main, but take no ac­tion to make it part of Malaysian law or at­tempt to en­force it.

The writer is head of the Ocean Law & Pol­icy Pro­gramme of the Na­tional Univer­sity of Sin­ga­pore (NUS) Cen­tre for In­ter­na­tional Law and an as­so­ciate pro­fes­sor in the NUS Fac­ulty of Law. He is also an ad­junct se­nior fel­low with the Mar­itime Se­cu­rity Pro­gramme, S. Ra­jarat­nam School of In­ter­na­tional Stud­ies, Nanyang Tech­no­log­i­cal Univer­sity, Sin­ga­pore


The Amer­i­can nu­clear-pow­ered air­craft car­rier, the USS Ron­ald Rea­gan at sea. The United States takes the po­si­tion that Unclos pre­serves the tra­di­tional free­dom to use the high seas for mil­i­tary pur­poses in a coastal state’s EEZ.

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