The Malacca Strait: A clash of sovereignty concepts?

Mark J. Valencia, Hawaii, United States

When then U.S. Commander-in-Chief of the Pacific Admiral Thomas Fargo was reported as suggesting that U.S. marines would help patrol the Strait of Malacca, it unwittingly summoned forth the unrequited haunts of history. And the issue of who should or does have the right to enforce security in the Malacca Strait became the latest battlefront in the contest between Westphalian sovereignty and modern reinterpretations thereof.

In 1648, the Treaty of Westphalia created the modern nation state and enshrined the concept of the sanctity of its sovereignty. This notion of sovereignty considers inviolate the internal affairs of nations. The newly created European States enjoyed such sovereignty and profited by the legitimacy and stability it conveyed.

Naturally more recently independent States wish to do the same and thus fiercely guard their Westphalian sovereignty. Indeed, this is the origin of the key ASEAN principle of non-interference in the internal affairs of other countries.

But when the concept was extended seaward to encompass strategic straits, the maritime powers balked. Indonesia and Malaysia claimed the Malacca Strait as part of their territorial, or for Indonesia, their archipelagic and territorial waters and thus under their complete sovereignty.

But more than desiring sovereignty for its own sake, both had special reasons to have and enforce it in the Malacca Strait. Indonesia saw it as a key part of its wawasan nusantara, the concept which defined Indonesia as a unitary entity consisting of its islands and archipelagic waters.

Both Indonesia and Malaysia also saw it as a means to protect themselves from gunboat diplomacy and foreign intervention in the affairs of their fledgling nations. Otherwise the Malacca Strait could be a dagger pointed at the heart of their newly won independence. However, despite their concerns, they failed to achieve full sovereignty over the Strait.

In the negotiations leading to the 1982 United Nations Convention the Law of the Sea, two competing concepts emerged regarding the regime for navigation in straits used for international navigation such as the Strait of Malacca -- innocent passage and transit passage.

A regime of innocent passage would have allowed Indonesia and Malaysia to retain their sovereignty over the Strait in the sense that any passage prejudicial to their peace, good order and security could be denied. But for the maritime powers, the Malacca Strait was the shortest and cheapest route between the Indian and Pacific Oceans and they wanted passage of their naval and commercial vessels to be absolutely guaranteed.

Thus the maritime powers led by the United States and the then Soviet Union pushed through a regime of transit passage in which the passage of vessel and aircraft cannot be impeded, hampered or suspended. Singapore -- economically and politically dependent on safe, secure and free passage through the Strait -- then as now sided with the maritime powers. Thus Malaysia and Indonesia have a sense of unfulfilled sovereignty over the Strait.

This is the unfortunate background to the current dispute. Now fast forward to the current controversy regarding who will respond to the proliferating piracy and the threat of a terrorist attack that could constrain or even block shipping in the Strait.

The United States and now others like Australia, Israel, Japan, Russia and the United Kingdom increasingly argue that sovereignty is not sacrosanct and that external powers have the right to intervene in States that are unable to suppress violent groups, particularly those that pose a danger beyond that nation's borders. Some have called for or claimed there are criteria for such interventions, such as the State having "failed" or the purpose being solely "humanitarian", but none have been agreed.

Moreover, these States have increasingly asserted and some have acted upon the right to pre-emptive self-defense. Indeed, this doctrine led to the intervention in Kosovo and the invasion of Iraq, as well as the worldwide hunt for weapons of mass destruction. And it could under certain circumstances lead to unilateral action to suppress piracy and terrorism in the Malacca Strait.

Indeed, Singapore sees that task as being beyond the will or capability of Malaysia and Indonesia, and thus feels it is the responsibility of the "international community". Meanwhile, Malaysia and Indonesia think the threat has been exaggerated on purpose to justify such international intervention.

As Mohamed Nazri Abdul Aziz, a Minister in Malaysia's Prime Minister's Department put it "the safety of the Straits of Malacca is important. If not guarded properly foreign powers may be prone to intervene in its management and this will pose a threat to the country's sovereignty".

This background and clash of sovereignty concepts explains the virulent reaction by Indonesia and Malaysia to the U.S. proposed Regional Maritime Security Initiative, under which the U.S. marines were to supposedly patrol the Strait.

To pre-empt the possibility of unilateral foreign intervention, Malaysia, Indonesia and Singapore agreed to jointly patrol the Strait and suppress piracy and the threat of terrorism there. Being proactive is perhaps the only defense against the application of this new doctrine.

But only time will tell if that can stem the tide of unilateral and pre-emptive intervention led by the United States. If it does not do so, Malaysian and Indonesian sovereignty in the Strait may become the latest casualty in the attack on the Westphalian construct of nation States.

The writer is a Maritime Policy Expert.