Don't Misunderstand the Strait of Malacca

Indonesia respects legitimate navigation freedoms, but Indonesia will not allow any vessel to exploit the right of transit passage as a pretext.

The statements made by Finance Minister Purbaya Yudhi Sadewa and Foreign Minister Sugiono regarding the Strait of Malacca highlight a classic problem in Indonesia. The country often seeks to sound assertive, yet it does not always communicate in clear legal language.

As a result, the public hears two equally strong messages, yet it still leaves fundamental questions about what Indonesia is actually permitted to do regarding foreign vessels in one of the most important straits in the world.

On one hand, there is an idea to impose taxes or fees on ships passing through the Malacca Strait, loosely comparing it to what Iran does in the Strait of Hormuz. On the other hand, there are explanations regarding the United States warships passing through the area, using terms that could potentially confuse ordinary transit, patrols, and freedom of navigation.

The Malacca Strait is not an empty space that can be filled according to momentary political needs. This strait is subject to a very specific regime of international maritime law, and this regime was established precisely to prevent coastal states from acting as if global shipping routes are local roads that can be closed, restricted, or subjected to arbitrary tolls.

According to UNCLOS 1982, the Strait of Malacca is classified as a strait used for international navigation and therefore falls under the regime of Part III. The consequences are clear: the right of passage applicable there is not merely a peaceful passage, but rather a transit passage as stipulated in Article 38 of UNCLOS 1982.

The transit passage rights provide space for foreign vessels, including military ships, to continuously and swiftly navigate through the strait. This regime also acknowledges the freedom of navigation and overflight inherent to the strait's function as a primary connector of global trade routes and strategic mobility.

However, precisely because of this, the right of transit passage should not be interpreted as a freedom to do anything. This right exists solely for the purpose of passage, not for stopping at will, not for patrolling, not for enforcing the law, not for conducting surveys, and not for transforming the strait into a stage for military operations that exceed the objectives of transit.

At this point, the government must be more orderly in using terminology. If a foreign warship is merely passing through the Malacca Strait to reach another destination without engaging in activities beyond normal navigation, the legal basis is the right of innocent passage, not patrol operations in the sense of law enforcement, nor any other term that gives the impression that the coastal state is tolerating actions that go beyond mere passage.

This distinction is significant and not merely technical. A country that incorrectly categorizes legal classifications will easily misformulate its responses, and the public, upon hearing ambiguous terms, may easily assume that all foreign warship presences pose the same threat or conversely, that all transits are automatically legitimate without limits.

In fact, international maritime law operates by strictly distinguishing between transiting and operating. Foreign warships may transit, but they are not permitted to utilize the Strait of Malacca for other actions that are not inherent to continuous and rapid transit.

Therefore, if there are foreign vessels entering the Malacca Strait and engaging in activities that exceed ordinary navigation, Indonesia has the basis to declare that the vessel has exited the umbrella of transit rights. This is where Indonesia's assertiveness must come into play, not with slogans, but through precise monitoring, identification, evidence, and legal protests.

However, the same firmness must also be directed inward when the state itself discusses the possibility of imposing taxes on passing ships. Such an idea sounds fiscally tempting, but it risks undermining the legal foundations of the international strait regime if the collected fees are merely for the passage of ships.

The Malacca Strait is neither a toll road nor a ticket gate. Coastal states do indeed retain territorial waters with sovereignty and an Exclusive Economic Zone (EEZ) with sovereign rights. However, this status does not provide a blank check to disrupt the exercise of transit passage rights, which are guaranteed by UNCLOS as part of the significant compromise of modern maritime law.

The compromise is simple, yet very important. Coastal states gain broader recognition of territorial waters up to 12 nautical miles (22 kilometers) and Exclusive Economic Zones (EEZ) up to 200 nautical miles (370 kilometers), while the international community is guaranteed navigation access through straits that have historically been the arteries of global shipping.

In other words, the recognition of coastal states' maritime claims was never intended to transform international straits into areas for unilateral exploitation. Therefore, the idea of imposing taxes on vessels that merely enjoy the right of transit passage will be difficult to uphold legally, diplomatically, or economically.

Indonesia certainly does not lose all regulatory space. Coastal states can still regulate navigation safety, environmental protection, maritime traffic management, and certain technical obligations as long as these do not hinder the right of transit passage and as long as there is a legitimate, proportional basis that is duly announced.

In the Strait of Malacca, the need for such regulation is evident. This strait is a global chokepoint, with high traffic density, limited space for movement, and the risks of accidents, collisions, pollution, and security breaches that constantly demand caution.

Therefore, a traffic separation scheme and various safety arrangements in this region are not administrative luxuries, but real necessities. If Indonesia wants to derive economic benefits from the burden of managing the strait, a more legitimate and intelligent path is to maximize the tangible services it provides, such as navigational safety services, specific technical support, or financing cooperation mechanisms in accordance with international law.

Herein lies the misleading comparison with Iran. Indonesia is not currently engaged in armed conflict, is not implementing geopolitical pressure strategies as seen in the Gulf, and has no interest in transforming the Strait of Malacca into a symbol of confrontation against certain countries.

Imitating the rhetoric of Hormuz for Malacca will only demonstrate that we have not distinguished between two very different legal and geopolitical contexts. The Strait of Malacca requires a cool head, not a crisis imagination borrowed from another region.

Indonesia's stance must be more mature than that. As one of the coastal countries in the Malacca Strait, Indonesia has a vested interest in maintaining a balance between sovereignty, maritime safety, legal certainty, regional stability, and its reputation as a nation that comprehensively understands international maritime law.

Therefore, the official message from the government should be formulated in a simpler and stronger manner. Foreign vessels, including warships, are allowed to pass through the Strait of Malacca with the right of transit passage as long as they are merely transiting, while Indonesia cannot impose taxes solely because they are passing through, unless there are specific, legitimate, tangible, and relevant services that are genuinely provided by the state.

That statement is important because it emphasizes to the public that Indonesia is not relinquishing its sovereignty. However, Indonesia must also not fabricate authorities that are not granted by international law.

At the same time, that statement also sends a clear message outward. Indonesia respects legitimate navigation freedoms, but Indonesia will not allow any vessel to exploit the right of transit passage as a pretext for activities beyond transit.

This is the position that we should maintain. A large maritime nation does not speak in mixed terms, and a serious rule-of-law country must not treat international straits as if they can be interpreted according to fiscal preferences or fleeting geopolitical emotions.

The Malacca Strait is too important to be managed with ambiguous language. If the government wants to sound strong, that strength must arise from legal precision. In matters of strategic seas, the ambiguity of terms is often more dangerous than the threats being discussed.

Arie Afriansyah, Professor of Maritime Law, Faculty of Law, University of Indonesia