Rule of Law Committee for the Ocean
India, Malaysia and the Law of the Sea in the Indo-Pacific
As China invests in the Indian Ocean, builds port facilities and begins basing ships in Djibouti and, possibly, Gwadar (Pakistan), India is showing greater concern for naval activities in the region. India’s easternmost territory, the Andaman and Nicobar islands on the Andaman Sea, along with Malaysia, Indonesia, and Thailand, border the eastern gateway to the Indian Ocean by way of the Strait of Malacca, bringing special attention to the region at this time.
When a new naval power enters a region there may be efforts to restrict foreign naval activities, so it was encouraging to see that on April 1st, 2018, the Prime Ministers of India and Malaysia issued a “Joint Statement on 60th Anniversary of India-Malaysia Diplomatic Relations.” Among the 68 paragraphs was one specifically addressing their commitment to the UN Convention on the Law of the Sea.
64. The two Leaders reiterated their commitment to respecting freedom of navigation and over flight, and unimpeded lawful commerce, based on the principles of international law, as reflected notably in the United Nations Convention on the Law of the Sea (UNCLOS) 1982. They urged all parties to resolve disputes through peaceful means without resorting to threat or use of force and exercise self-restraint in the conduct of activities, and avoid unilateral actions that raise tensions, and they emphasized that all parties should show utmost respect to the UNCLOS 1982, which establishes the international legal order of the seas and oceans;
source of the Joint Statement: <http://www.mea.gov.in/bilateral-documents.htm?dtl/28297/Joint_Statement_on_60th_Anniversary_of_IndiaMalaysia_Diplomatic_Relations>
As positive as that sounds, it is important to address how these countries viewed the Convention when they ratified it, and a source of insight is found in the declarations made at the time of ratification. While these declarations have largely been left unimplemented, they leave some uncertainties, not just for the region, but for supporters of the Convention in the United States in making the case for US accession to the Convention.
In its declarations, India included this provision:
(b) The Government of the Republic of India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State.”
Malaysia made a similar declaration:
3. The Malaysian Government also understands that the provisions of the Convention do not authorize other States to carry out military exercises or manoeuvres, in particular those involving the use of weapon or explosives in the exclusive economic zone without the consent of the coastal state.
Similar declarations were made by other Indian Ocean coastal states, including:
1. The Government of the People’s Republic of Bangladesh understands that the provisions of the Convention do not authorise other States to carry out in the exclusive economic zone and on the continental shelf military exercise or manoeuvres, in particular, those involving the use of weapons or explosives, without the consent of the coastal State.
iii) It is the understanding of the Government of the Islamic Republic of Pakistan that the provisions of the Convention on the Law of the Sea do not in any way authorize the carrying out in the Exclusive Economic Zone and in the Continental Shelf of any coastal State military exercises or manoeuvres by other States, in particular where the use of weapons or explosives are involved, without the consent of the coastal State concerned.”
4. The Government of the Kingdom of Thailand understands that, in the exclusive economic zone, enjoyment of the freedom of navigation in accordance with relevant provisions of the Convention excludes any non-peaceful use without the consent of the coastal State, in particular, military exercises or other activities which may affect the rights or interests of the coastal State; and it also excludes the threat or use of force against the territorial integrity, political independence, peace or security of the coastal State.
Several countries in other regions that have made similar declarations include Brazil, Ecuador, Uruguay and Cape Verde. Other states, including Germany, Italy, the Netherlands and the United Kingdom, made declarations denying this interpretation of the Convention.
Several more states made declarations claiming the right of coastal states to request or require prior notification of innocent passage of warships through the territorial sea.
The convention itself make no mention of such a prior notification requirement. The Convention explicitly states that reservations to the Convention can be made only in instances specifically identified in the Convention and that declarations cannot exclude or modify the legal effect of the Convention:
Reservations and exceptions
No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.Article 310
Declarations and statements
Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.