The Malacca Strait: A clash of sovereignty concepts?

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.