When de-colonisation began at the end of World War II in 1945, the world was no longer Euro-centric, as there were many emerging nations in Asia, Africa and South America.
There was a need for the world community to jointly come up with a constitution to govern the oceans.
In 1960, the government of the Federation of Malaya acceded to the Geneva Convention on the Territorial Sea and Contiguous Zone 1958 (TSC).
An official UN document (Document A/CONF.19/L.15) recorded that the Federation of Malaya participated in the Second United Nations Conference on the Law of the Sea (UNCLOS II) in 1960 held in Geneva, Switzerland - a conference that failed to resolve maritime disputes.
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Malaysia
When the Federation of Malaya was reconstituted as Malaysia in 1963, Malaysia actively participated in the Third United Nations Conference on the Law of the Sea (UNCLOS III) that took place from 1973 to 1982 in New York.
UNCLOS III led towards the creation of the Law of the Sea Convention 1982 (LOSC), a multilateral treaty governing the oceans up to today.
Malaysia is a State-party to the LOSC that came into force in Malaysia in 1996.
The LOSC has superseded the earlier TSC acceded by Malaya in 1960.
In order to enforce the provisions of the LOSC via an enabling statute, Malaysia enacted the Territorial Sea Act 2012 (TSA).
The TSA has received a number of criticisms particularly from Sarawak, citing it as unconstitutional and that Sarawak was not consulted in enacting the TSA.
So, is the TSA unconstitutional?
And should it be amended?
Treaties
The Federal Constitution (Federal List) stipulated that matters pertaining to external affairs like treaties, international relations and implementation of treaties fall exclusively under the jurisdiction of the Federal government.
This was the reason why the government of the Federation of Malaya, and not the government of states within Malaya like Johor or Negeri Sembilan, participated in UNCLOS II in 1960.
The same applied to UNCLOS III, where it was participated by Malaysia and not states within Malaysia like Sarawak, Sabah or Johor.
Only sovereign nations could participate in these UN-sponsored conferences.
It is a clear fact that states within Malaysia are not sovereign entities.
Territorial Sea
Baseline is crucial to determine the territorial sea of a coastal State.
Marine waters on the landward side of the baseline are considered internal waters and are not governed by the LOSC but by the laws of the coastal state concerned.
Part II of the LOSC stipulates that internal waters may include ports, bays and mouth of rivers.
Article 3 of the LOSC clearly states that a coastal State may claim up to 12-nautical miles (approximately 22 kilometers) of territorial sea from the baseline of the coastal state.
The term ‘State’ used in the LOSC denotes sovereign States and not component states within a nation.
In other words, the LOSC allows Malaysia to claim up to 12-nautical miles territorial sea but these rights may not apply to Sarawak, Sabah, Johor or any other component states within Malaysia.
Malaysia has absolute sovereignty over its territorial sea area which consists of both the seabed and the marine waters within that specified zone.
Beyond this 12-nautical miles limit, a coastal state could no longer exert sovereignty but it could however, exercise sovereign rights up to 200-nautical miles (approximately 370 kilometers) of ‘exclusive economic zone’ (EEZ), otherwise known as the fishing zone.
More often than not, the term ‘territorial waters’ is inaccurately used.
The LOSC subscribes to the term ‘territorial sea’, and not ‘territorial waters’ to refer to the 12-nautical miles zone.
So, is the TSA unconstitutional?
Each State has its own ways of incorporating international treaties into its domestic law.
As a member of the Commonwealth that follows the British system, the legislative power in Malaysia is vested in the Parliament.
Therefore, any international treaties, conventions or pacts will only become part of Malaysian law when the Parliament passes a statute, giving legal effect to the treaty in Malaysia.
The TSA is one of the statutes that enables the provisions of the LOSC to take effect in Malaysia.
Section 3(1) of the TSA states clearly that Malaysia’s territorial sea can be measured up to 12 nautical miles from the baseline.
Section 4 of the same statute reiterates that Malaysia has absolute sovereignty over the waters and the subsoil therein.
The Federal Constitution stipulates that matters pertaining to land fall within the jurisdiction of the state government, not the federal government.
In fact, Section 12 of the Land Code of Sarawak states that ‘the entire property in and control of State land and of all rivers, canals, creeks and water courses and the bed thereof is and shall be vested solely in the (Sarawak) Government’.
Nevertheless, the TSA does not involve terrestrial areas, but marine areas measured from the baseline up to 12-nautical miles limit.
In addition, nothing in Section 12 of the Land Code of Sarawak mentions about ‘territorial sea’ but merely referred to inland waters like rivers, canals and creeks.
As mentioned earlier, the LOSC spells out that only a sovereign State may claim up to 12-nautical miles territorial sea limit.
Therefore, the jurisdiction over the territorial sea should be vested upon the federal government representing the sovereign State of Malaysia, not the government of states within Malaysia.
Based on these facts, how could one assert that the TSA is unconstitutional?
The TSA merely follows what has been prescribed by the LOSC and as a State-party, Malaysia is bound by the provisions of the LOSC.
Conclusion
Malaysia has been an active participant in the law of the sea conferences since its independence in 1957.
Having ratified the LOSC in 1996, it is therefore important for Malaysia to incorporate the provisions of the LOSC into the TSA.
The TSA is not unconstitutional, as governance pertaining to the territorial sea is not listed in the State List of the Federal Constitution.
Hence, ammendments to it may not be entirely necessary.
As maritime transport is crucial in trade, Malaysia should continue working towards incorporating the LOSC provisions into Malaysian law – a move that is necessary to sustain Malaysia’s position as one of the world’s leading trading nation.
Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at Universiti Sains Islam Malaysia and a research associate at the Asian-African Legal Consultative Organization (AALCO), New Delhi, India. He is also a visiting professor at the School of Law, Far Eastern Federal University, Vladivostok, Russia.
Views expressed are personally those of the author and do not necessarily reflect those of Astro AWANI.
