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Commentary

“Contested U.S. Naval Maneuvers in Malaysian Waters”

By B.A. Hamzah

June 6, 2017

The Ronald Reagan Carrier Strike Group and the Indian navy's Western Fleet sail in formation during a passing exercise. (Photo: US Navy)

Reports, Articles and Commentaries

Could the U.S. and China End up in a Terrible War that Neither Wants?
Joshua Rovner
The Washington Post, May 30

China and the United States risk falling into a Thucydides trap, a situation where the aspirations of a rising power inevitably lead to confrontation with the existing superpower. Just as it was the case with Sparta and Athens, the U.S. and China dominate the land, seas and skies over in their immediate spheres of influence. If the war were to break out, both countries would be able to retreat into their respective safe havens, guaranteeing that any conflict would be a long and costly affair – just like the Peloponnesian War. This time however, the stakes are enormous. Both parties possess nuclear arsenals that could bring about the destruction of human civilization, as we know it.

Trump Hands the Chinese a Gift: The Chance for Global Leadership
David Sanger and Jane Perlez
The New York Times, June 1

U.S. withdrawal from the Paris Agreement presents China with a golden opportunity to assume a global leadership role. As the U.S. looks inward and abandons global commitments, its soft power is eroding. While the long term effects of the withdrawal remain to be seen, there is a short term opportunity for China, as well as other countries, to expand on global leadership.

Beyond the San Hai: The Challenge of China’s Blue-Water Navy
Dr. Patrick M. Cronin, Dr. Mira Rapp-Hooper, Harry Krejsa, Alexander Sullivan and Rush Doshi
CNAS, May 15

This report focuses on China’s growing maritime strength, not only within its near-abroad, but also on the global stage. It provides key implications and policy recommendations for the U.S. and its allies in the face of the China’s People’s Liberation Army Navy (PLAN) increased capabilities, power projections and strategic operations. The international community must prepare for the inevitable. It is only a matter of time before China becomes a global naval power. In the short term China’s naval strategy will likely expand into the Indian Ocean Region and the Pacific, a move which offers opportunities for cooperation (and competition). The report recommends that the U.S. increase its investment in maritime capabilities, diversify its military capabilities in Asia, and identify areas of cooperation with China while strengthening multilateral institutions.

Are Maritime Law Enforcement Forces Destabilizing Asia?
A CSIS Interactive Resource
ChinaPower: Unpacking the complexity of China’s rise

Maritime disputes in the South China Sea present an array of potential flashpoints between countries with overlapping claims. In recent years, many of these countries have mobilized government vessels traditionally used for maritime law enforcement to reinforce their territorial claims. ChinaPower has developed an interactive timeline that traces major maritime law enforcement incidents in the South China Sea from 2010 to the present day.

Events, Videos and Discussions

China’s Vision for a New Eurasian Order
Event – June 12

Carnegie and the National Bureau of Asian Research will host a discussion of Nadège Rolland new book, entitled: China’s Eurasian Century? Political and Strategic Implications of the Belt and Road Initiative (BRI). The ambitious initiative hopes to link Europe, Africa and Asia through a vast network of transportation, energy, and telecommunication infrastructure, accompanied by strengthened monetary cooperation and increased people-to-people exchanges.

Rolland examines the drivers and goals of China’s Belt and Road Initiative and argues that the initiative reflects Beijing’s desire to shape Eurasia according to its own worldview and unique characteristics. Ely Ratner and Daniel S. Markey will provide comments and insights, with Carnegie’s Ashley J. Tellis moderating the event.

Video: China’s appetite for steel is not over yet
Alan Livsey
Financial Times, March 24

Alan Livsey argues that although base metal prices have been low since January, it is premature to predict the steel demand in China will soon collapse. There are signs of the Chinese government closing inefficient mills, which may lead to reduced manufacturing capacity and raise the steel price.

Commentary

"Contested U.S. Naval Maneuvers in Malaysian Waters"

By B.A. Hamzah

In its 2017 Report on the Freedom of Navigation, the United States Department of Defence (DoD) criticised Malaysia and 21 other countries for making excessive maritime claims. The United States. maintains that Malaysia has undermined the freedom of navigation and contravened customary international law.

DoD has faulted Malaysia on two grounds: requiring prior notification for nuclear-powered vessels to enter their territorial sea, and failing to authorize foreign powers to conduct military exercises in its exclusive economic zone (EEZ). Other states requiring prior notification for foreign warships to access their territorial seas include Albania, China, Croatia, India, Maldives, Malta, Oman, Pakistan, South Korea, Thailand and Vietnam.

The origin of Malaysia’s restrictions on nuclear-powered ships and military maneuvers can be traced to a declaration it deposited with the United Nations on the 14th of September, 1996. Consistent with the Vienna Convention on the Law of Treaties of 1969, the declaration reads that Malaysia “understands [that] the provisions of the Convention do not authorise other States to carry out military exercises or manoeuvres, in particular those involving the use of weapons or explosives in the exclusive economic zone without the consent of the coastal State”.

It is worth noting that the concept of EEZs is found only in UNCLOS, of which the U.S. is a signatory, but has yet to ratify. The U.S. insist that the “international uses” described in Article 87 of UNCLOS include the right to conduct military maneuvers in EEZs. However, the 27 states that have ratified UNCLOS disagree with the U.S. and do not adhere to this interpretation.

These countries point to the absence of specific provisions in UNCLOS permitting foreign countries to conduct military activities in EEZs. Separately, they take the view that phrases in UNCLOS which refer to the “rules of international law” in Article 87 (1), and of “internationally lawful uses of the sea” in Article 58 (1), do not apply to military exercises.

As such, Malaysia’s official policy is that as long as maritime activities are military in nature, they are prohibited in the Malaysian EEZ, without its expressed consent. Unauthorised military activities are considered a threat to the security Malaysia.

The 1996 declaration also stipulates prior authorisation for the passage of nuclear powered vessels and vessels carrying nuclear materials in its territorial sea. This restriction is primarily targeted at vessels transiting through the accident-prone and traffic-congested Strait of Malacca.

Malaysia contests the unauthorised right of foreign countries to conduct military exercises in its EEZ on the ground of sovereignty, law and security. In Malaysia’s view, as a coastal state, subject to legally accepted constraints, Malaysia has absolute sovereign jurisdiction in its territorial sea and EEZ.

There is no international law that explicitly prohibits Malaysia from claiming jurisdiction over foreign military activities in its EEZ. Unauthorised foreign military activities can undermine and subvert Malaysia’s security, and they can be non-peaceful in nature.

Malaysia views UNCLOS as a treaty that is only applicable to state parties. Although the treaty has come into force, not all the provisions have the force of opinio juris as customary international law, whereby states are obliged to obey, prescribe and enforce. The provision dealing with military activities at sea is one of them.


B.A. Hamzah is a lecturer with the Department of Strategic Studies, National Defence University Malaysia, Kuala Lumpur. He is also an Adjunct Research Professor, National Institute of South China Sea Studies, Haikou, China. This commentary first appeared at the New Straits Times.