Access to Southeast Asian Waters by Naval Powers: Some Problems and Ambiguities

Abstract

The 1982 Convention on the Law of the Sea and the cumulating legal trends since the beginning of the Third United Nations Convention on the Law of the Sea (UNCLOS III) in 1973, together with economic and political pressures, might create problems for peacetime missions of the naval powers. In the early 1970s some writers saw these trends which would eventually be codified into the Con vention as kind of de facto arms control1 while others discounted the whole thing and said that when vital interests of the naval powers were involved such legal trends and other legal inhibitions would merely become a scrap of paper across the opening of a missile tube.2 Although the major naval powers have not signed, let alone ratified the 1982 Convention, it is generally believed that their naval interest is well served by the 1982 Convention. Some of the agreements in the Convention which are of particular relevance to proponents of naval mobility are: the twelve-mile territorial sea with a right of passage; transit through straits; the valida tion of the archipelagic concept, but including the right of archipelagic sea-lanes passage; and the confirmation of the traditional freedoms on the high seas. An extension of the territorial sea to twelve miles is not ideal from the naval viewpoint because, historically, naval mobility has been served by the doctrine of the freedom of the seas which gives warships unhindered movement outside the narrow limits of the territorial sea, whereas, within territorial seas, the movement of foreign warships and aircraft is governed by the concept of innocent passage. This gives surface warships the right to transit, without prior notification, but innocence requires that the transit is not prejudicial to the peace, good order, or security of the coastal state. Submarines and aircraft are not given the same freedom: does not embrace the right of aircraft overflight or of submerged submarine transit. The aim of the naval powers during UNCLOS III was, therefore, to try to stop the further qualitative and quantitative creep of the territorial sea. The main threat of a creeping territorial sea is the restriction of warship access through straits where had previously been free. Given the strategic importance of free and unimpeded passage through straits, it was a major interest of the naval powers to maintain or even improve upon the rules formulated before UNCLOS HI. At UNCLOS III, the naval powers failed to prevent the extension of the territorial sea to a distance of twelve miles but there was no closing of any inter national straits. This change is more than compensated for by the extension of 208