Prof Robert Beckman’s Reply to CIL Dialogues’ Blog Post by Mohd Hazmi Mohd Rusli of 7 August 2023
By Professor Robert Beckman
Published on 14 August 2023
Reply and Rejoinder to “Prioritizing the Marine Environment: A Possible Malaysian Recharacterization of the Strait of Malacca to Regulate the Passage of Nuclear-Powered Submarines”
Mohd Hazmi Mohd Rusli (Rusli) has argued that a possible “recharacterization” of the Malacca Strait would enable Malaysia to regulate the passage of nuclear-powered submarines passing through the Malacca Strait to protect the interests of Malaysia and the international community against potential marine environmental pollution arising from nuclear-powered submarine accidents. This reply aims to demonstrate that his arguments are inconsistent with the transit passage regime in Part III of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) on Straits Used for International Navigation; are contrary to the long-standing practice of the littoral States, Indonesia, Malaysia and Singapore; would infringe overflight rights in the Straits of Malacca and Singapore (SOMS), and in any event, would not achieve the purported purpose of such a recharacterization, namely the protection of the marine environment.
Transit Passage Regime under UNCLOS
Rusli correctly points out that the passage of nuclear-powered submarines through the SOMS is governed by the provisions in Part III of UNCLOS on Straits Used for International Navigation. Article 38 provides that ships of all States have the right of ‘transit passage’ through straits used for international navigation, and that the power of States bordering the strait to regulate ships exercising the right of transit passage is strictly limited. Part III further provides that ships exercising the right of transit passage in straits used for international navigation may navigate in their ‘normal mode’ which, in the case of submarines, means that they can transit while ‘submerged’. UNCLOS recognizes that certain straits are excluded from the transit passage regime, including straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State in which the regime of non-suspendable innocent passage would apply (Article 45 [1] [b] of UNCLOS).
Rusli’s Arguments on the Recharacterization of the Malacca Strait
Rusli argues that Malaysia could change the legal regime governing ships that transit its waters in the Malacca Strait by unilaterally declaring that, as far as navigation is concerned, the Malacca Strait and the Singapore Strait are not part of the same strait.
He first argues that currently, the two straits are treated together as a single strait connecting the high seas or Exclusive Economic Zone (EEZ) at the northern entrance of the Malacca Strait to the EEZ of Indonesia and Malaysia at the eastern end of the Singapore Strait. Consequently, the SOMS has always been regarded as a strait used for international navigation between one part of the high seas or EEZ, and another part of the high seas or EEZ.
He then argues that Malaysia should consider recharacterizing the Malacca Strait as a separate strait. The Malacca Strait would then connect at its southern end with the western end of the Singapore Strait, which is the territorial sea of either Indonesia or Singapore. Consequently, he maintains that the right of transit passage would not apply in the Malacca Strait because it would no longer connect one area of high seas or EEZ with another area of high seas or EEZ. Therefore, ships exercising passage through the Malacca Strait would be governed by the rules on innocent passage in the territorial sea rather than transit passage in a strait used for international navigation, and Malaysia would have a greater right to regulate the passage of nuclear-powered submarines in the Malacca Strait.
Recharacterization of the Malacca Strait is Inconsistent with UNCLOS
However, his “recharacterization” argument is inconsistent with the provisions in Part III of UNCLOS. Article 37 specifically states that the provisions on transit passage apply ‘to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’ (emphasis added). Indeed, during the negotiations of UNCLOS, it was clear that the negotiators intended that the SOMS would be subject to the transit passage regime. The Malacca Strait and the Singapore Strait are connected, and they are used daily by hundreds of ships for international navigation between the EEZ at the upper end of the Malacca Strait and the EEZ at the eastern end of the Singapore Strait. A “recharacterization” of the Malacca Strait will not change the fact that the two straits, whether considered singly or together, are used for international navigation between the EEZ of Indonesia or Thailand at the northern end of the Malacca Strait and the EEZ of the Indonesia or Malaysia at the eastern end of the Singapore Strait.
Recharacterization of the Malacca Strait is Inconsistent with the Established Trilateral Cooperation between Indonesia, Malaysia, and Singapore
The proposed “recharacterization” of the Malacca Strait would also be inconsistent with the longstanding practice of the three States bordering the Malacca Strait and the Singapore Strait—Indonesia, Malaysia and Singapore—to cooperate and manage the two straits as a single strait. Such cooperation includes the Tripartite Technical Experts Group (TTEG), which was established in 1971. The three States have successfully submitted various proposals to the International Maritime Organization (IMO) to enhance the safety of navigation in the SOMS, including a traffic separation scheme, mandatory ship reporting systems, and others. They also agreed to establish the SOMS Cooperation Mechanism pursuant to Article 43 of UNCLOS which provides a framework for cooperation between the three littoral States and the users of the SOMS, including the shipping industry and other stakeholders.
Recharacterization would infringe overflight rights over the SOMS
Rusli also failed to consider the impact of the proposed recharacterization on overflight over the SOMS. Aircraft as well as ships enjoy the right of transit passage in straits used for international navigation, whereas only ships have the right of innocent passage in the territorial sea. This restriction would be strongly opposed by the naval powers because they use aircraft to protect their warships when transiting straits used for international navigation. It would also be opposed by Singapore as the right of overflight over the strait is essential to its economic and security interests.
Environmental Concerns and Submarine Transit Modes in the Malacca Strait
Rusli’s main concern with respect to nuclear-powered submarines seems to be the threat of nuclear pollution of the marine environment in the event of an accident. The author pointed out that, if the regime of innocent passage is applied to nuclear-powered submarines, they would be required to surface and fly their flag; whereas if the regime of transit passage applies, they can transit in their ‘normal mode’, which is submerged. However, because the Malacca Strait is rather shallow, submarines do not normally transit while submerged, because doing so would be very hazardous. Therefore, as a practical matter, nuclear-powered submarines are likely to transit on the surface even if the regime of transit passage continues to apply to the Malacca Strait.
Moreover, Rusli argues that the recharacterization would allow Malaysia to apply Article 30 of UNCLOS which he describes as empowering ‘coastal States to suspend navigation of recalcitrant naval vessels.’ On the contrary, Article 30 does not give coastal States the power to suspend the innocent passage of warships including submarines—the coastal State is permitted to require warships to leave the territorial sea immediately only if the warship does not comply with coastal State law and regulations concerning passage through the territorial sea. Thus, a recharacterization of the Malacca Strait would not permit any suspension of the passage of submarines.
Rusli also fails to point out that, even if Malaysia had the power to regulate foreign nuclear-powered submarines transiting the Malacca Strait, the Malaysian legislation would only apply in the part of the Malacca Strait that is within the territorial sea of Malaysia. A foreign nuclear-powered submarine transiting in the east-bound lane from the Indian Ocean to the South China Sea would transit both straits (i.e., the Malacca Strait and Singapore Strait) in the territorial sea of Indonesia, and Malaysian laws would therefore not apply to its passage. Malaysian laws would only apply to submarines transiting the Malacca Strait in the west-bound lane.
Conclusions
The author’s proposal for a recharacterization of the Malacca Strait is misconceived because it is inconsistent with the transit passage regime in UNCLOS, a universally recognized treaty to which Malaysia is a party. It is also misconceived because it is inconsistent with the long-standing practice of Indonesia, Malaysia and Singapore to manage the SOMS as single strait.
In any case, the major naval powers are likely to challenge or ignore attempts by Malaysia to enact national laws on the passage of nuclear-powered submarines in the Malacca Strait. They will maintain that the right of States bordering a strait used for international navigation is strictly limited by the provisions in Part III of UNCLOS. The author’s proposal risks undermining the hard-fought consensus achieved in UNCLOS as well as the decades of cooperation between the littoral states and accordingly, warrants rigorous scrutiny.
Professor Robert Beckman is Co-Head of the Ocean Law and Policy Programme at CIL. He thanks his colleagues Joel Ong, Dita Liliansa, and Tara Davenport for their comments on earlier drafts.