UNSOED�FACULTY OF LAW

9 March 2022

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The Legality of Foreign Military Activities in Maritime Domain

ASSOCIATE PROFESSOR

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Dr. Mohd Hazmi bin Mohd Rusli

LLB (IIUM), MCL (IIUM), DSLP (IIUM), PhD (Wollongong)

*Advocate & Solicitor (Non-practising)

*Visiting Professor, School of Law

Far Eastern Federal University, Vladivostok, Russia

*Visiting Professor, South China Sea Institute, Xiamen University, China

*Visiting Professor, Faculty of Law, Universitas Brawijaya, Indonesia

*Lieutenant Commander (Honorary) Royal Malaysian Navy Volunteer Reserve Team

*Visiting Fellow, Australian National University Malaysia Institute, Canberra, Australia

Attractions around Kuala Lumpur

Outline of the Presentation

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1. INTRODUCTION;

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2. MARITIME ZONES OF JURISDICTION;

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3. THE CORFU CHANNEL CASE;

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4. NAVIGATIONAL RIGHTS OF FOREIGN VESSELS;

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5. THE USAGE OF THE SEA FOR PEACEFUL PURPOSES

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6. CONCLUSION

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LAW OF THE SEA CONVENTION

Territorial Sea –innocent passage

Baseline

Exclusive Economic Zone – Article 57 LOSC) –freedom of navigation is applicable

Continental Shelf

(Article 76 [1] LOSC)

High Seas – freedom of navigation

200nms

12 nautical miles

(Article 86 LOSC)

(Article 3 LOSC)

MARITIME ZONES OF JURISDICTION ESTABLISHED BY THE LOSC 1982

WATER COLUMN

SEABED COLUMN

Corfu Channel Case 1949 (UK v Albania)

First issue: Whether or not military vessels belonging to another State may initiate military activities in the territorial sea of another State – NO!

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Second issue: Whether or not military vessels may navigate through territorial sea belonging to another State? Is prior authorisation required?

AS LONG AS THE PASSAGE IS INNOCENT, THEN PRIOR AUTHORISATION IS NOT REQUIRED

Features of innocent passage under the LOSC

Article 17 – applies to ships of all States

Article 18(2) – Continuous and expeditious

Article 19(1) – not prejudicial to the security of the coastal state

Article 20 – submarines to surface

Article 23 –nuclear-powered vessels to observe precaution

Article 25(3) – could be temporarily suspended

Article 30 – recalcitrant warships may be asked to leave IMMEDIATELY

WHAT ARE NAVIGATIONAL RIGHTS OF FOREIGN VESSELS TO TRAVERSE TERRITORIAL SEAS WHICH ARE PART OF STRAITS USED FOR INTERNATIONAL NAVIGATION? – STRAITS OF MALACCA AND SINGAPORE

Innocent Passage? May be temporarily suspended

Transit Passage, a more liberal navigational regime for Straits in exchange of the 12-nautical miles territorial sea claims

Indonesia

Malaysia

3 nms

3 nms

High Seas Corridor

No more High Seas Corridor

Vessels may exercise

Article 3 of the LOSC states that Every State has the right to claim up to 12 nms territorial Sea

NAVIGATIONAL REGIME IN THE STRAITS OF MALACCA AND SINGAPORE

THE ACCEPTED TRADITIONAL LIMITS OF TERRITORIAL SEA CLAIMS BEFORE THE LAW OF THE SEA CONVENTION (LOSC) CAME INTO FORCE

MAIN FEATURE:

TRANSIT PASSAGE COULD NOT BE IMPEDED, HAMPERED OR IMPAIRED BY THE LITTORAL STATES.

As a result:

• Transit passage was introduced in straits used for international navigation, a more guaranteed right than the territorial sea’s innocent passage where the passage cannot be impeded and hampered by the States bordering straits;

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• Articles 38(1), 42(2) and 44 of the LOSC;

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Article 42(1) (a) & (b):

States bordering straits may regulate shipping in the straits, but this can only be done by giving affect to ‘applicable international regulations’.

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Article 42(2):

Such laws and regulations shall not…have the practical effect of denying transit passage.

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Article 44:

States bordering straits shall not hamper transit passage.

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Article 39:

Normal mode of navigation for submarines.

• Norquist contends that the language used in Article 38(2) of the LOSC corresponds to Articles 58(1) and 87(1) (a) and (b) of the LOSC, implying that the ‘right of transit passage’ is comparable with the ‘freedom of navigation and overflight’ in the EEZ and the high seas.

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• Beckman describes transit passage as the exercise of a freedom rather than a right, as aircrafts and vessels have the freedom to traverse and fly over straits.

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• The regulatory powers of States bordering straits over shipping in straits used for international navigation are very restricted, so much so that they can only interfere with the passage of vessels if they have committed major damage to the marine environment of the straits.

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ARTICLE 233 – Enforcement against recalcitrant ships could only be taken if such navigation may cause or threaten to cause ‘MAJOR DAMAGE’. But the LOSC has not defined what ‘MAJOR DAMAGE’ is.

ARCHIPELAGIC WATERS OF INDONESIA

NAVIGATIONAL RIGHTS

• Vessels may exercise the right to an unimpeded passage through the Indonesian archipelago under the ‘Archipelagic Sea Lanes Passage’ regime, expounded under Part IV of the LOSC.
• Like the application of transit passage, this regime allows vessels to navigate freely through the Archipelagic Sea Lanes (ASL).
• Nevertheless, if the vessel cease to navigate within the ASL, the regime of innocent passage would apply- which is a stricter navigational regime- could be temporarily suspended.

• Right of Innocent Passage:
• Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters.
• Article 52(2)- nevertheless, this passage may be temporarily suspended in specified areas of its archipelagic waters.

Archipelagic Sea Lanes Passage

• Article 53 (1)- An archipelagic State may designate sea lanes and air routes suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters.
• Art 53(2) – all ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
• Article 53(3) – ASLP means the exercise of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an EEZ to another part of the high seas or an EEZ.

• Indonesia- the only archipelagic nation that has laws and prescribed ASLs.
• Peraturan Pemerintah Nomor 37 Tahun 2002 Tentang Hak dan Kewajiban Kapal dan Pesawat Udara Asing Dalam Melaksanakan Hak Lintas Alur Laut Kepulauan Melalui Alur Laut Kepulauan Yang Ditetapkan.
• Peraturan Pemerintah Nomor 36 Tahun 2002 Tentang Hak dan Kewajiban Kapal Asing Dalam Melaksanakan Lintas Damai Melalui Perairan Indonesia

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• Indonesian Archipelagic Waters

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• Strait of Sunda Route

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• Strait of Lombok-Makassar Route

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• Ombai-Wetar Straits Route

Routes through the Indonesian Archipelagic Waters

Lombok-Makassar

Sunda

Ombai-Wetar

EAST-WEST ARCHIPELAGIC SEA LANES?

Yet to be designated.

Article 53(12) applies – ASLP may be applicable in routes normally used for international navigation.

Freedom of navigation in the EEZ

Article 58(1) LOSC

Article 88 – High Seas is to be reserved for peaceful purposes

Conflicting views

Dr. BA Hamzah of UPNM

 “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.”

This statement is made based upon Malaysia’s unilateral declaration made upon ratification of LOSC.

Dr. Robert Beckman

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.

It is true that LOSC does not “explicitly” prohibit a coastal state from regulating military activities by foreign warships in its EEZ. However, LOSC 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.

1. Should Malaysia and the rest in the region be wary of AUKUS?

2. This region does not need outside powers to keep it in shape – the success of MALSINDO is a manifestation.

3. Will this pact violate the spirit of the LOSC?

4. Would possession of nuclear powered submarines keep the world in order?

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CURRENT ISSUE - AUKUS

PREAMBLE of the LOSC

Recognising the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans…

Visit hazmirusli.com

So far, there have been nine incidents of sunken nuclear submarines worldwide, either by accident or scuttling. These sunken nuclear submarines may pose threats to the marine environment, leaking radiation into the sea.

According to the Marine Department of Malaysia, the Straits of Malacca is traversed by more than 70,000 vessels each year.

Out of this total number, the strait is, on average, navigated by 100 naval vessels each year, including that of nuclear-powered submarines flying Chinese, Indian and American flags, among others.

Although none of the accidents took place in the waters of the Straits of Malacca and Singapore, the recent incident involving an American nuclear-powered submarine that ran smack into an undersea mountain in the South China Sea has raised concerns of a potential maritime accident or worse, a nuclear meltdown.

My personal views/ Conclusion

1. All nations must abide to the LOSC – navigational rights vis-à-vis sovereignty/sovereign rights.

2. Nations must respect each other’s sovereignty – not to intimidate each other.

3. My view is more inclined towards Dr. BA Hamzah’s perspective.

4. Special arrangements should be made regarding navigation of nuclear-powered submarines as the LOSC was discussed in the 70s – not too many nuclear-powered submarines at that time.

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• Article 53(5) – Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points – shall not deviate more than 25 nautical miles to either side of such axis lines.
• Could also precribe TSS
• What happens if the archipelagic State does not designate sea lanes or air routes?
• Article 53(12)- the right of ASLP may be exercised through the routes normally used for international navigation --- who determines these routes?

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