Why UNCLOS Matters
UNCLOS and Maritime Governance: Why It Matters to Malaysia
Malaysia's evolution to a full maritime nation-state is ongoing and the challenge will be to adapt to new security and other transnational maritime issues while supporting UNCLOS principles.
This article is part of “UNCLOS 40th Anniversary Series – Why UNCLOS Matters” conceptualised by the Blue Security programme. The series, which commemorates the 40th anniversary of the UN Convention on the Law of the Sea, brings together established and emerging maritime security scholars from Southeast Asia and the broader Indo-Pacific to address the pertinence and relevance of UNCLOS. Blue Security brings together Australian and Southeast Asian experts to look at a range of maritime security issues across the region. The series was developed by Dr Troy Lee-Brown and Dr Bec Strating. It is published in collaboration with the team at Fulcrum.
Malaysia signed the United Nations Convention on the Law of the Sea (UNCLOS) in 1982 and ratified the convention in 1996. Historically, Malaysia has existed as a maritime nation due to its geographical proximity to key international waters. Malaysia’s total coastline is significant, with 4,675 km of it on the western and eastern coasts of peninsular Malaysia and the coasts of Sabah and Sarawak on Borneo. This article discusses the growing importance of UNCLOS to Malaysia for maritime governance at sea.
UNCLOS 1982 has a bearing on Malaysia as a coastal state, other littoral states and Malaysia’s neighbours, the archipelagic states of Indonesia and the Philippines. As a state bordering the Straits of Melaka (SOM), Malaysia has a primary role in maintaining and enhancing the safety of navigation and environmental protection in the straits. For international shippers and other interested parties who use the SOM, ensuring that the sea lanes are open for navigation and innocent passage, and secure and sound for commercial transit, is key. UNCLOS 1982 also factors in Malaysia’s management of its maritime ecosystem and its adherence to international conventions, protocols, and regulations, including those under the purview of the International Maritime Organisation (IMO).
Maritime security governance is increasingly significant in the context of non-traditional security. Maritime security threats impacting Malaysia’s maritime domain include unlawful activities at sea, such as piracy, armed robbery, illegal exploitation of marine living and non-living resources, and the unauthorised use of the sea as a conduit for the trafficking of humans, goods and other materials harmful to maritime assets, ships, passengers and crew. The governance approach for dealing with these challenges at sea involves several categories of actors such as the coastal states, the users of the sea lanes for commercial and military purposes, and the shipping industry. On the security front, the key Malaysian entities safeguarding the country’s maritime interests and security include the Royal Malaysian Navy, the Malaysian Maritime Enforcement Agency, and the Royal Marine Police.
Malaysia’s position as a littoral state in the SOM is widely covered in scholarly and practitioners’ literature concerning the status of the SOM as a key waterway for global maritime trade. In fact, the legal regime governing the transit of straits was a key issue in the negotiations for the third UNCLOS (1973-1982). Many scholars have dealt with the positions of Indonesia, Malaysia, and Singapore vis-à-vis the questions of navigation through the SOM and a special legal regime for the Straits which promotes unimpeded passage and overflight. Article 43 of UNCLOS is crucial as it guides the ‘Straits states’ (Malaysia, Indonesia, and Singapore), user states and international organisations on how problems should be approached in areas such as the safety of navigation and environmental protection.
Malaysia has a wide range of maritime interests and must become a fully-fledged maritime nation.
UNCLOS 1982 also governs the rights and jurisdiction of coastal states in their exclusive economic zones (EEZs). The EEZ regime provides coastal states with the right to explore and exploit natural resources within 200 nautical miles of their baselines while guaranteeing freedom of navigation to other states. Malaysia’s maritime claims are based on international law, particularly as set out under UNCLOS. The Peta Baru Malaysia (or “New Map of Malaysia”) 1979, which lays out the country’s maritime boundaries, includes its internal waters, territorial sea, continental shelf, EEZ, and air space over applicable maritime zones. Malaysia’s aim is to preserve sovereignty over its territorial seas and sovereign rights over its EEZ.
Malaysia’s commitments to maintaining and promoting peace and security in the region align with its participation in ASEAN, which promotes the peaceful resolution of disputes and the non-use of force. UNCLOS 1982 is among the universally accepted principles of international law that all ASEAN members accept.
International cooperation among maritime nations is not new and has existed since 1914 when the International Convention for the Safety of Life at Sea (SOLAS) was introduced. As a littoral state of the SOM, Malaysia established cooperation with user states in the establishment and maintenance of navigational safety and other improvements to aid international navigation. Malaysia has also cooperated with non-state entities such as the Nippon Foundation for the prevention, reduction, and control of pollution from ships in the SOM. Malaysia actively participates with international partners through bilateral and multilateral engagements not only in the SOM but also in the Indian Ocean through the Indian Ocean Rim Association.
Malaysia has a wide range of maritime interests and must become a fully-fledged maritime nation. It needs to pursue the management of its maritime domain through an ocean governance regime conforming to universally accepted international law, particularly as a state party to UNCLOS. Malaysia has strong potential to become a fully-fledged maritime nation but more robust efforts grounded in a more coherent and flexible national plan to reckon with the rapid changes in the global environment must be implemented. To this end, Malaysia should pursue stronger cooperation with regional and extra-regional states on transnational challenges affecting its maritime security and environment.
This article is part of the ‘Blue Security’ project led by La Trobe Asia, University of Western Australia Defence and Security Institute, Griffith Asia Institute, UNSW Canberra and the Asia-Pacific Development, Diplomacy and Defence Dialogue (AP4D). Views expressed are solely of its author/s and not representative of the Maritime Exchange, the Australian Government, or collaboration partner country government.
Sumathy Permal is a Senior Fellow and Head of Maritime Security and Diplomacy, the Maritime Institute of Malaysia.