The Malaysian government has decided to exempt foreign vessels repairing undersea cables at any cable landing station in Malaysian waters from its cabotage policy. The exemption came into force on 1 April 2019 through the exercise of the powers conferred by Section 65U of the Merchant Shipping Ordinance 1952, pursuant to the Federal Government Gazette on 28 March 2019.(1) Transport Minister Anthony Loke stated that there are 16 underwater international cable network and nine domestic cable networks, all of which are located at various cable landing stations in Malaysian waters.(2)
The preamble to the United Nations Convention on the Law of the Sea (UNCLOS), to which Malaysia is a signatory, provides that state parties recognise the "desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication".(3) UNCLOS bolsters international communication by, among other things, requiring the protection of cables besides the laying or maintenance of such cables.(4)
International telecommunications are recognised and identified as a common good and an important commodity in the interconnectedness of the world. In this day and age, more than 95% of the world's international telecommunications are provided by fibre optic submarine cables, carrying large volumes of digital data and information as light waves.(5) This facilitates internet communication, telephone signals and e-mail services. Without doubt, submarine fibre-optic cables have become "critical communications infrastructure" that is "vitally important to the global economy and the national security of all States".(6)
The main consideration when conducting cable operations in ocean spaces (eg, surveying cable routes, deploying cables and repairing or maintaining them) is ensuring the effective operation of the cable system which will then attract foreign investors.(7) This, in turn, will increase the growth of telecommunications, making the country an attractive hub for international companies to set up data centres.
It is in Malaysia's legitimate interest to ensure that cables are repaired quickly. The transport minister further stated that usually it takes 27 days to get the regulatory permits and approval. However, he estimated that this will be reduced to 14 days in order to ensure that repair works are carried out speedily.(8) Security concerns may arise when foreign vessels carry out cable repair and maintenance. However, the urgency and necessity of repairing the cables outweigh security concerns, which can be combatted by putting various procedures in place. Therefore, it is important to regulate cable operations involving foreign vessels in areas where:
- security concern arises; and
- there is economic interest.(9)
An appropriate cable-laying vessel – namely, the DP2 type cable-laying ship – is required to undertake the repair of undersea cables.(10) However, only a few vessels of that type are available in Malaysia. The exemption of foreign vessels will ensure that undersea cable repair works can be conducted efficiently within a short timeframe.
Through the exemption of foreign vessels from the cabotage policy, restrictions which generated unintended effects and created significant delays and costs in repairing undersea cables have been eliminated. Instead, highly specialised, purpose-built vessels can berth in Malaysian waters to conduct repair operations of undersea cables.
(1) Federal Gazette PU(B) 166, 28 March 2019.
(6) UN General Assembly Resolution A/Res/65/37, Oceans and Law of the Sea, adopted at the 59th Plenary Meeting of the General Assembly, 7 December 2010, UN Division for Ocean Affairs and the Law of the Sea (DOALOS), available at www.un.org/depts/los/index.htm.
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