8 - Foreign military activities in the EEZ: preliminary views from Malaysia

Abstract

By virtue of its declaration at the United Nations, Malaysia does not allow any foreign state to conduct military activities in its exclusive economic zone (EEZ). The declaration was deposited with the Secretary General of the United Nations on 14 September 1996 together with the instrument of ratification. The purpose of Malaysia’s declaration is simply to underscore its disagreement with certain provisions in UNCLOS and to exclude or modify the legal effect with regard to their application of these provisions on the state. Malaysia is not the only state that has placed restrictions on foreign military activities in the EEZ. Despite assertions by some maritime powers against the Malaysian policy, the policy is likely to stay. The problem with the Malaysian policy has to do more with its enforcement; less to do with legal justification under international law. Malaysia finds that state practices on unauthorised foreign military activities in EEZs and territorial seas are diverse and lack the force of opinio juris. In this regard, it is important to note that to date at least twenty-one states have made various declarations or statements which are registered at the United Nations, rejecting military activities in the EEZ and requiring states to seek the coastal state’s permission for warships to pass through their territorial sea as well permission for vessels carrying nuclear material. Under international law, states have a duty to respect such declarations or statements that are not made under duress or coercion.