'Freedom of the Seas' in the Malay Archipelago: An Unsung International Custom

KUALA LUMPUR, 13 Jan (Bernama) -- The Malays were great seafarers and had expanded their influence in the Malay Archipelago through a number of maritime empires that once dominated Southeast Asia. Facilitated by the concept of the open seas (mare liberum), trade among the Kingdoms flourished within this region. The Malays have been advocating mare liberum or freedom of the seas long before it was propagated by Hugo Grotius, a renowned Dutch scholar many regard as the father of international law. Is freedom of the seas in the Malay Archipelago a forgotten ‘international custom’ under the modern law of the sea? THE MALAY ARCHIPELAGO The Malay Archipelago or Nusantara, as it is popularly known, is the largest archipelago in the world, extending from Sumatra in the West to the Spice Islands in the East. This region has been an important connecting factor between two of the world’s greatest civilisations, namely China and India. For centuries, the Malay Archipelago was known throughout the world as the cradle of maritime civilisation. Based on archaeological findings, the earliest Malay port, that existed within the Malay Archipelago, was Takuapa, or Langkasuka, which emerged sometime in the third century AD. By the fifth century AD, the Jiecha Kingdom, otherwise known as the Old Kedah, was established in the area south of the modern day Malaysian State of Kedah. Jiecha was once a prosperous transit port for ships from Arabia, Persia and India, before they continued their voyage to the East. The people of Jiecha were actively engaged in trade with foreign merchants. SRIVIJAYA By the seventh century AD, however, Pan-Pan, Langkasuka and Jiecha were subjugated to the dominance of the powerful Malay kingdom of Srivijaya. The capital of Srivijaya was Palembang, situated almost equidistantly from the Strait of Malacca and the Strait of Sunda. This was the first empire that managed to control these two maritime choke points in Southeast Asia and the trade activities that took place along these waterways by compelling the passing vessels to call at the Srivijayan ports and by levying port dues and taxes upon them. Srivijaya participated actively in a growing world economy at that time and prospered by engaging in extensive commerce in camphor, cloves, sandalwood, nutmegs and other valuable commodities with traders and merchants from different parts of Asia, namely China, India and the Middle-East. MAJAPAHIT The core economic and political power in the Malay Archipelago shifted from Sumatra to the island of Java in 1293 AD. Majapahit territories expanded significantly in the 13th century AD throughout the Malay Archipelago which included Sumatra and the Malay Peninsula, Borneo, Celebes, Moluccas and Mindanao. It generated wealth through agricultural produce, particularly rice, and also through maritime trade that went through its archipelagic straits. With such large territories, Majapahit traders accumulated raw materials from its hinterland to be traded at the port. These included pepper, salt and coconut oil from Java, spices from the Moluccas, ivory from Sumatra, tin and lead from the Malay Peninsula to be exchanged with textiles from India and porcelain products from China. Between the 12th and the 13th centuries, Majapahit replaced Srivijaya and became the foremost centre of commerce in the Malay Archipelago. MALACCA Malacca was the next kingdom to take command in controlling trade in the Malay Archipelago after the fall of Majapahit. Established by a prince of the disintegrated Srivijayanempire, this kingdom had a profound influence on the Strait of Malacca, so much so that the name of this once powerful Sultanate is immortalised in the waterway that the Sultanate dominated for more than a century. In the late 14th century, Malacca began to increase its influence, especially in the maritime arena. This was due to its strategic location as it nestled comfortably along the length of the Strait of Malacca with the advantage of being sheltered from the ferocious monsoon currents. It consequently was considered a safe harbour, which made it a perfect haven for seafarers waiting for the change of monsoon winds to travel eastward or towards the west. Malacca grew not only into a prosperous international port, but also a regional maritime empire. Malacca engaged in diplomatic and commercial ties with other States within the region, namely China, Java, Siam and India. The Sultanate Malacca prospered until 1511 as a crucial link in world trade. It was said that the population of the port of Malacca before the fall of the Sultanate was probably around 100,000, and, thus, was as large as that of other European cities of the time such as Naples and Paris. Malacca’s glorious moments were short-lived with the arrival of the Portuguese in the region in the early sixteenth century. The fall of Malacca led to the establishment of a number of relatively influential Malay empires, namely Johor, Aceh and Gowa. MARE LIBERUMIN THE MALAY ARCHIPELAGO These brief historical episodes have shown that the Malays have been practicing mare liberum in engaging trade with other nations long before Hugo Grotius came up with that concept. As skillful seafarers, the Malays have in the past dominated the seas. During its golden epoch, the influence of the Malay kingdom of Srivijaya was so great that it reached as far as Madagascar to the west. The Malays, particularly the Makassaresehave, also sailed to Arnhem Land in Australia to trade with the aboriginal community as early as the seventeenth century AD. During the colonial era, there was opposition from the local Malay kingdoms against the Dutch practice of monopoly in the East Indies (Indonesia). For example, Sultan Hassanudin of Gowa in Makassar was always rebelling against the Dutch monopoly of trade in the East Indies. He believed that in the mind of God, there was no predestination of the East Indies to be exploited and monopolised by the European commercial interests only. The order by the Dutch forbidding the local Makassar Malays to sail the seas was a matter unheard of in the eyes of the Sultan. In the 2008 case of PedraBranca, the International Court of Justice (ICJ) had in its first round of judgment pronounced that the Sultanate of Johor had original title to PedraBranca/PulauBatuPutih (PBP) and had this to say in reference to the unchallenged kingdom of Johor: Having considered the actual historical and geographical context of the present case relating to the old Sultanate of Johor, the Court concludes that as far as the territorial domain of the Sultanate of Johor was concerned, it did cover in principle, all the islands and islets within the Straits of Singapore, which lay in the middle of this kingdom and did, thus, include the Island of PedraBranca/PBP. This possession of the Islands by the Old Sultanate of Johor was never challenged by any other powers in the region and can in all circumstances be seen as satisfying the condition of "continuous and peaceful display of territorial sovereignty (peaceful in relation to other states)". Apart from the decision in the favour of the old Sultanate of Johor, the ICJ had also implied by asserting that Johor could have established its own customary Law of the Sea in practicing continuous and peaceful display of sovereignty within its territory. These examples clearly show that mare liberum has always been exercised as an international custom by the people of the Malay Archipelago. UNSUNG INTERNATIONAL CUSTOM? History has shown that even though kingdoms in Southeast Asia kept changing, the trading activities between these kingdoms and other Asian realms still continued. The active trading activities within this region show that besides the Europeans, the Asians, namely the Chinese, Indians, Arabs and the Malays, too, were practicing the concept of freedom of the seas. Unfortunately for the Malays, their glorious past as great empire-builders and seafarers was never officially documented. Ever since its downfall in the 12th century AD, the pre-eminence of Srivijaya as an influential trading nation was long forgotten and was never even believed to have existed by many historians. It was not until the 19th century AD that the existence of Srivijaya was acknowledged by historians, alongside with Majapahit and Malacca. In addition, the sovereignty of the Malay sultanate of Johor, a successor state of Malacca and Srivijaya, was internationally recognised only quite recently in 2008 by the ICJ in its judgement over the Pedra Branca case. For this reason, the State practice of mare liberum in the Malay Archipelago remained largely an unsung international custom. -------------------------------------------------------------------------- About the writers: Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at Islamic Science University of Malaysia and an associate fellow at the Institute of Oceanography and Environment, University Malaysia Terengganu. Rahmat Mohamad is a Professor of international law at the Faculty of Law, MARA University of Technology and secretary-general of the New Delhi-based Asian Aftican Legal Consultative Organisation. -- BERNAMA