Maritime Security in Southeast Asia (Routledge Security in Asia Series)

Maritime Security in Southeast Asia

Over the last twenty years, maritime security in Southeast Asia has taken on a much greater importance due to the growing economic and political weight of Asia, as well as the Law of the Sea convention, which has resulted in 200-nauticalmile exclusive economic zones (EEZs). Within these zones lie oil and fishery resources, as well as important sea lanes of communication (SLOCs), which need to be defended against competing claims by neighbouring countries; a highly important topic, given that the Strait of Malacca and the South China Sea constitute some of the world’s most important waterways providing vital commerce and prosperity to many economies. Whilst conventional challenges such as maritime territorial disputes and the security of SLOCs remain, a range of non-traditional threats such as piracy and maritime terrorism have emerged alongside competition for resources and strategic access to increase the potential for conflict. This book seeks to examine the challenges to maritime security in Southeast Asia and the wider fight against crime at sea, as well as the measures that have been taken by the regional countries, extraregional countries and international organizations in response to these challenges. A leading field of contributors identify the nature of the maritime security problem and critically evaluate the various responses in the management of prevailing and emerging security threats. As one of the few books to engage both the maritime security challenges and responses, Maritime Security in Southeast Asia will be an invaluable resource to academics, policy analysts, legislators and students interested in security issues in Southeast Asia. Kwa Chong Guan is Head of External Programmes at the Institute of Defence and Strategic Studies, Nanyang Technological University, Singapore, and CoChair of Singapore’s National Committee of the Council for Security Cooperation in the Asia Pacific. John K. Skogan is Senior Researcher at the Norwegian Institute of International Affairs, presently engaged at the Norwegian Institute for Defence Studies, Norway.

Routledge Security in Asia Series

Taiwan’s Security and Air Power Taiwan’s defense against the air threat from mainland China Edited by Martin Edmonds and Michael M. Tsai Asia Pacific Security – Values and Identity Leszek Buszynski Taiwan’s Defense Reform Edited by Martin Edmonds and Michael M. Tsai Maritime Security in Southeast Asia Edited by Kwa Chong Guan and John K. Skogan

Maritime Security in Southeast Asia

Edited by Kwa Chong Guan and John K. Skogan

First published 2007 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 5RN Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint of the Taylor & Francis Group, an Informa business © 2007 Editorial selection, © Kwa Chong Guan and John K. Skogan, © the contributors This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Maritime security in Southeast Asia / Edited by Kwa Chong Guan and John K. Skogan. p. cm. – (Routledge security in Asia series 4) Includes bibliographical references and index. ISBN-13: 978-0-415-41388-6 (hardback : alk. paper) 1. Sea-power–Southeast Asia. 2. National security–Southeast Asia. 3. Southeast Asia–Strategic aspects. I. Kwa, Chong Guan. II. Skogan, John Kristen. VA620.M374 2007 359'.030959–dc22 2006026120 ISBN 0–203–96441–1 Master e-book ISBN

ISBN 978-0-415-41388-6 (hbk) ISBN 978-0-203-96441-5 (ebk)

Contents

Notes on contributors Preface List of abbreviations

vii ix xi

PART I

Introduction 1 Southeast Asian SLOCS and security options

1 3

ANDERS C. SJAASTAD

2 Re-thinking the safety of navigation in the Malacca Strait

14

BARRY DESKER

PART II

Challenges 3 The importance and security of regional sea lanes

19 21

JOSHUA HO

4 The regional dimension of territorial and maritime disputes in Southeast Asia: actors, disagreements and dynamics

34

W. LAWRENCE S. PRABHAKAR

5 Maritime disputes in the South China Sea: strategic and diplomatic status quo

49

RALF EMMERS

6 Piracy in the waters of Southeast Asia

62

CATHERINE ZARA RAYMOND

7 Maritime terrorist threat in Southeast Asia ARABINDA ACHARYA

78

vi Contents PART III

Responses 8 Building good order at sea in Southeast Asia: the promise of international regimes

95 97

SAM BATEMAN

9 Archipelagic sea lanes passage in Southeast Asia: developments and uncertainties

117

ROBERT BECKMAN

10 The US Regional Maritime Security Initiative and US grand strategy in Southeast Asia

134

CHRISTIAN-MARIUS STRYKEN

11 Satellite-based tracking of ships as global crime control: ISPS Code, AIS, SSAS and LRIT

146

JAN GEORG CHRISTOPHERSEN

12 Flags of convenience as a complicating factor in combating crime at sea

162

GUNNAR STØLSVIK

PART IV

Comments and reflections

175

13 Terrorism at sea: combating what – and how?

177

JOHN K. SKOGAN

14 Reflections on the changing maritime security environment

189

KWA CHONG GUAN

PART V

Afterword

199

15 The important role of shipping: challenges ahead

201

TAY LIM HENG

Bibliography Index

205 218

Notes on contributors

Arabinda Acharya is Visiting Associate and Manager of Strategic Projects with the International Centre for Political Violence and Terrorism Research, S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore. His research areas include human security, conflict and political violence and terrorism. Sam Bateman is Senior Fellow at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore. He is a former naval officer who became the first Director of the Centre for Maritime Policy at the University of Wollongong where he remains an adjunct Professorial Research Fellow. Robert Beckman is Associate Professor at the Faculty of Law, National University of Singapore. He has a JD from Wisconsin and an LLM from Harvard. He specializes in law of the sea and the international regulation of shipping. Jan Georg Christophersen is visiting Senior Research Fellow at the Norwegian Institute of International Affairs. He is a criminologist and a Master Mariner with wide practical experience from the sea and from trading, chartering and insurance work in shipping. Barry Desker is Dean of the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore. He was Singapore’s Ambassador to Indonesia from 1986–1993 and Chief Executive Officer, Singapore Trade Development Board, 1994–2000. His research interests include the World Trade Organization and free trade agreements, as well as regional economic and security issues. Ralf Emmers is Associate Professor and Head of Studies at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore. His research interests include security studies, maritime security, international institutions in the Asia-Pacific, and the international relations of Southeast Asia. Joshua Ho is Senior Fellow at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore and is a serving Naval Officer with the rank of Lieutenant Colonel. He has an MA from Cambridge

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Contributors

University, UK and an MSc (Management) (Distinction) from the Naval Postgraduate School, California. Kwa Chong Guan is Head of External Programmes at the S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore, and Co-Chair of Singapore’s National Committee of the Council for Security Cooperation in the Asia Pacific. He is also an Adjunct Associate Professor at the Department of History, National University of Singapore. W. Lawrence S. Prabhakar is Associate Professor, Department of Political Science at Madras Christian College, Chennai (Madras), India. He is Visiting Fellow, S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore and a founding member of the Centre for Security Analysis, Chennai, India. Catherine Zara Raymond is currently a Travel Analyst at Control Risks – an independent, specialist risk consultancy. She was previously an Associate Research Fellow, in the Maritime Security Programme, at the Institute of Defence and Strategic Studies, Nanyang Technological University, Singapore. Anders C. Sjaastad is Senior Advisor at the Norwegian Institute of International Affairs. He has contributed to Arms Control in a Multipolar World (1996), Deterrence and Defense in the North (co-ed.,1985), Nato – The Next Thirty Years (1980). He was Minister of Defence, 1981–1986, and a Member of Parliament, 1986–1997. John K. Skogan is Senior Researcher at the Norwegian Institute of International Affairs and is presently engaged at the Institute for Defence Studies, Oslo. His fields of research and publishing include strategic affairs, arms control and transatlantic relations. He is co-editor of Skogan/Brundtland, Soviet Sea Power in Northern Waters (Pinter, 1990). In 1989–1990 he served as Deputy Defence Minister. Gunnar Stølsvik is Head of the Legal Section of the Norwegian Coast Guard. Professionally he has focused especially on the statehood criteria, secession and acquisitive prescription in International Law. He has participated in various Norwegian delegations to the International Maritime Organization and worked at ministerial level. Christian-Marius Stryken worked as a researcher at the Norwegian Institute of International Affairs while completing his chapter for this volume. He is presently working as communications advisor in the lobbyfirm Argument. He will submit his PhD thesis in international relations at the London School of Economics. Tay Lim Heng was appointed Chief Executive of the Maritime and Port Authority of Singapore (MPA) with effect from 1 June 2005. He is currently a board member of the Housing and Development Board of Singapore, the Singapore Maritime Foundation and the Centre for Maritime Studies, National University of Singapore.

Preface

We are, at the beginning of the twenty-first century, apparently standing in the middle of a tidal shift in our understanding of what constitutes the maritime security of Southeast Asia. Two world wars and the ensuing Cold War impressed upon us the need for a blue water navy capable of dominating the oceans. The consolidation of the late colonial state in the first half of the twentieth century included the clearer demarcation of boundaries on land and sea for the control of smuggling, movement of peoples, trafficking of persons and piracy. PostSecond World War decolonization and nation building stressed sovereignty and territoriality. The seas which constituted much of Southeast Asia and enabled the flow and seepage of peoples for the making of heterogeneous communities and hybrid cultures which defined the region were divided and became barriers to the movement of persons, goods and ideas. However, a new cycle of globalization in the closing decades of the last century is transforming the way we construct the spaces of the seas. Trade as one of the drivers of this cycle of globalization, as in earlier cycles of globalization, is forcing us to reconstruct the network of ports and the sea lanes of communication that link them. Ensuring the safety of these sea lanes of communication in more efficient monitoring and regulating of traffic in congested stretches of seas, especially the Straits of Malacca, or measures to reduce the prospect of accidents at sea and in ports take on new dimensions because the disruption of shipping undermines the network of ports through which flows the trade that underlies the globalization of our economies upon which we have predicated our economic well-being. The probability of a post-9/11 transnational terrorist attack on sea lanes may now be low, but the outcome of such an attack would have high consequences and as such changes our understanding of what constitutes maritime security, while blurring the distinction between security and safety. The United Nations Convention on the Law of the Sea (UNCLOS) adopted in Montego Bay, Jamaica on 10 December 1982 and entered into force on 16 November 1994 is also transforming the way we construct the spaces of the sea in Southeast Asia. Both Indonesia and the Philippines have had to change their identities as nation-states to become archipelagic states. The UNCLOS demarcation of contiguous and exclusive economic zones for coastal states is changing the way we think of the sea. It is no longer a mare liberum as Hugo Grotius defined it

x

Preface

in his defence of the Dutch seizure of a Portuguese carrack the Sante Catarina in the waters of Singapore on 25 February 1603. The sea is now a resource to be secured and managed. How to ensure this singly as a nation-state, or in cooperation with other nation-states in the region, is the challenge. Amidst these new challenges to the maritime security of Southeast Asia are the old problems of territorial and maritime disputes, especially in the South China Sea. The continued maintenance and development of new blue water naval capabilities by major powers around Southeast Asia reconstructs the old spectre of a naval stand-off in the waters of the South China Sea or the Indian Ocean. How do we anticipate such a stand-off by ensuring cooperative, rather than competitive naval strategies and building good order at sea? It was to address these new challenges and old problems of maritime security in Southeast Asia that the Norwegian Institute of International Affairs and the Institute of Defence and Strategic Studies jointly convened two workshops, one in Oslo in June 2005, and the other in Singapore in November 2005. Both NUPI and IDSS would like to thank the Royal Norwegian Ministry of Foreign Affairs for this initiative in bringing us together as part of a wider programme of Norwegian–Singapore cooperation. Both institutes would like to thank the Royal Norwegian Ministry of Foreign Affairs and the Consortium for Research on Terrorism and International Crime, Oslo, for their funding support for this project. The co-convenors of the two workshops and co-editors of this volume, Kwa Chong Guan and John K. Skogan, would like to thank their colleagues for their support and participation in this project. In particular, they would like to thank Lt Col Joshua Ho for his assistance in organizing the project and for negotiating the publishing of the volume, and Ms Beverley Loke for her help in the final stages of editing the papers for this volume. We hope that this volume will interest not only our colleagues in academia and policy institutions researching maritime security, but also members of the shipping community and staffs of navies, for ultimately it is their problems and challenges that were the subjects of the workshops we convened and the papers of this volume. C. G. Kwa John K. Skogan

List of abbreviations

ACSA AIS AMM APEC ARF ASC ASEAN ASG ASL ASSeT CBMs CMPT COMSAR CSCAP CSL DoD DWT EADS EAS EEZ EiS ETA FATF FON FOS FPDA FPSO GAM GDP GMDSS GPS

Acquisition and Cross-Servicing Agreement Automatic Identification System ASEAN Ministerial Meeting Asia-Pacific Economic Cooperation ASEAN Regional Forum ASEAN Security Community Association of Southeast Asian Nations Abu Sayyaf Group archipelagic sea lanes Accompanying Sea Security Teams confidence building measures Combined Maritime Patrol Team Sub-Committee on Radiocommunications and Search and Rescue Council for Security Co-operation in the Asia Pacific cooperative security locations Department of Defense deadweight tonnage European Aeronautic Defence and Space Company East Asia Summit exclusive economic zone Eyes in the Sky estimated time of arrival Financial Action Task Force freedom of navigation forward operating site Five Powers Defence Agreement Floating Production Storage Offloading Gerakan Aceh Merdeka/ Free Aceh Movement gross domestic product Global Maritime Distress and Safety System Global Positioning Systems

xii

Abbreviations

IALA ICC ID IED ILO IMB IMO IMSO INMARSAT ISIS ISO ISPS ISSC JCG JI JPDA JWC KMM LCM LCU LCVP LIMO LNG LRIT LST LTTE MAAs MALSINDO MEPC MILF MMEA MMI MNLF MOB MPA MSC MSP NATO NAV Sub-Committee OECD OEEC OSCE PFLP

International Association of Maritime Aids to Navigation and Lighthouse Authorities International Chamber of Commerce identification improvised explosive device International Labour Organization International Maritime Bureau International Maritime Organization International Mobile Satellite Organization International Maritime Satellite System Institute of Strategic and International Studies International Organization for Standardization International Ship and Port Facility Security International Ship Security Certificate Japan Coast Guard Jemaah Islamiyah Joint Petroleum Development Area Joint War Committee Kumpulan Militan Malaysia Landing Craft Mechanized Landing Craft Utility Landing Craft Vehicle, Personnel Low Intensity Maritime Operations liquefied natural gas long range identification and tracking Landing Ship-Tank Liberation Tigers of Tamil Elam Monitoring and Action Agencies The Trilateral Malacca Straits Coordinated Patrols Maritime Environment Protection Committee Moro Islamic Liberation Front Malaysian Maritime Enforcement Agency Majelis Mujahidin Indonesia Moro National Liberation Front main operating base maritime patrol aircraft Maritime Safety Committee Malacca Straits Patrol North Atlantic Treaty Organization Sub-Committee on Safety of Navigation Organization for Economic Co-operation and Development Organization for European Economic Cooperation Organization for Security and Cooperation in Europe Popular Front for the Liberation of Palestine

Abbreviations xiii PIRA PLA PRC PSI PULO QDR ReCAAP RMSSAR RMSI SAR Convention SEATO SLOCs SOLAS SSAS STANAVFORLANT STAR STCW SUA SURPIC TAC TEU TNI-AL ULCC UN UNCLOS UNCTAD USPACOM VHF VLCC WCO WMD

Provisional Irish Republican Army People’s Liberation Army People’s Republic of China Proliferation Security Initiative Pattani United Liberation Organization Quadrennial Defense Review Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia Regional Maritime Surveillance and Safety Regime Regional Maritime Security Initiative International Convention on Maritime Search and Rescue Southeast Asian Treaty Organization sea lanes of communication International Convention for the Safety of Life at Sea Ship Security Alert System Standing Naval Forces Atlantic Secure Trade in the Asia-Pacific Region International Convention on Standards for Training, Certification and Watchkeeping for Seafarers Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Surface Picture Surveillance System Treaty of Amity and Cooperation twenty-foot equivalent units Tentara Nasional Indonesia Angkatan Laut, Navy of the Republic of Indonesia ultra large crude carrier United Nations United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development US Pacific Command very high frequency very large crude carrier World Customs Organization weapons of mass destruction

PART I

Introduction

1

Southeast Asian SLOCs and security options Anders C. Sjaastad

The importance of the Southeast Asian sea lanes of communications (SLOCs) to the economies of both established and emerging Asian powers is beyond question and thus of utmost significance for the overall global economy. Moreover, the attention devoted to safeguarding the innocent passage of commercial shipping through the Southeast Asian straits is only going to increase as countries such as China, India and Japan are scrambling to secure deliveries of energy and raw materials to fuel their booming economies. For instance, China recently surpassed Japan to become the number one ‘user’ nation of transports through the Malacca Strait. Thus, the safety and security of the SLOCs are already hot topics in AsianPacific affairs and both littoral states and user countries pursue policies they claim are designed to achieve those goals. The purpose of this introductory chapter is to explore and analyse the nature of the security challenges facing Southeast Asia and then discuss the various security options, be they national, bilateral or multilateral, and to what extent they are available. All parties – whether littoral states, user countries or other interested actors will unanimously favour steps and arrangements that will safeguard innocent passage of commercial shipping through Southeast Asian waters – at least in theory. However, when it comes to drawing up and agreeing upon ways and means to achieve these aims, things become difficult. It is when nations agree on proper arrangements, share the responsibility and even establish institutions that interests diverge and even become conflicting. This is partly because of differing national priorities, but is also a result of mistrust, lack of confidence and hidden agendas. For some of the littoral states who can still remember their colonial past, the principle of sovereignty is sacrosanct and any arrangement or action that could be seen to undermine it is taboo. And seen with Southeast Asian eyes, it appears that the United States’ first priority nowadays is to fight international terrorism regardless of other threats or considerations. Countries such as Indonesia and Malaysia may certainly share some of the American worries, but without regarding fighting terrorism to be an all-consuming business. There is a natural tendency for Western observers, including this one, to look for Atlantic/European solutions to Asian security challenges – partly because these institutions are familiar, but also because they have proved largely successful in the Atlantic/European theatre. However, there is an understandable

4

Anders C. Sjaastad

reluctance amongst Asians to emulate European behaviour and institutions not least for historical and ideological reasons. Another frequent Asian objection to adopting Western organizations is that most of them are relics from the Cold War era and consequently irrelevant to present-day Asia. The counter-argument that most of these institutions still serve the old continent well is not enough to erase the bleaker aspects of the European legacy.

The security challenges In most of Asia, unlike in Europe, traditional military threats prevail and the use of military power to pursue political aims is still regarded as a state option. In addition, new unconventional and asymmetrical threats have become prominent, widespread and imminent. In Europe, the armed forces are reduced in numbers and military expenditure is cut while the remaining forces are restructured to face asymmetrical threats in the European theatre as well as being capable of being deployed to fulfill ‘out-of-area’ missions. But unlike in the world overall, parts of Asia have seen military expenditure and the armed forces substantially increase. This is to a large extent explained by the multifaceted threats many Asian nations potentially face. But it is also partially due to the lack of cooperation between the armed forces of Asian countries. In Southeast Asia, this is largely the case whether one speaks of cooperation on a bilateral or multilateral level, a result of the limitations that the principle of sovereignty places on the ‘newly’ independent countries. Apart from traditional conflicts rooted in unsettled or disputed borders, or stemming from historical animosity, the most likely serious security challenges to Southeast Asian countries are derived from the complex territorial disputes in the potentially resource rich waters of the South China and East China Seas. China claims virtually the whole of the South China Sea including all islands, islets and rocks as its exclusive economic zone (EEZ) based on a so-called ‘historical’ right. This ‘imperialistic’ claim would imply that China demands areas even within, for instance, Malaysia’s territorial waters off Borneo. Beijing’s position, however, hardly holds up in any international court and China, being a party to the UN Convention on the Law of the Sea (UNCLOS), is bound by its principles. Whilst China is still pushing its claim, it is a handy tool to involve the various countries of the Association of Southeast Asian Nations (ASEAN), rather than entertaining much hope of getting its demand accepted. However, ASEAN itself is ridden with controversies when it comes to the South China Sea since many of its members have conflicting territorial claims and more distant members are reluctant to get involved. In early 2005, for instance, there was a naval stand-off between Indonesia and Malaysia over the disputed area of Ambalat in the Sulawesi Sea. This delicate situation is reinforced by China’s ‘divide and rule’ strategy with regard to the South China Sea. Beijing has succeeded in engaging separately two of the ‘frontline’ states, namely the Philippines and Vietnam, and has entered into bilateral agreements with them concerning the South China Sea issues. This has, not surprisingly, created increased suspicion inside the organization and the ensuing lack of trust

Southeast Asian SLOCs and security options

5

has been carried over when facing other challenges such as terrorism and piracy. As a net result this has limited the possible use of ASEAN as a more potent security instrument. What has been achieved, however, within the auspices of ASEAN is an agreed code of conduct when it comes to behaviour and confidence building measures in the South China Sea. However, as a testimony to the delicacy of even agreeing upon such a set of behavioural rules, several of the claimant states did not want a legally binding ‘code of conduct’ – all they could accept was a declaration guiding the intended conduct in the South China Sea. That being said, the declaration has worked well, disciplined the various states’ behaviour and the incidents have been kept low-key and restrained. Nevertheless, the claimant countries have from time to time taken small and ‘innocent’ steps hoping to improve their own position without trying to rock the overall status quo situation. All potential security challenges and conflicts in Southeast Asia can, in principle, be handled through a pragmatic approach apart from the territorial disputes, whether they exist on land or at sea. None of the countries, big or small, are likely to compromise their claims in the South China Sea in the foreseeable future. Thus, rather than compromising on the one hand or resorting to military means on the other, the parties have put the conflicts aside for future deliberations. However, that is what makes the South China Sea issues so difficult and always potentially dangerous for Asian security. The piracy threat to the SLOCs is disputed amongst the Southeast Asian countries themselves. Since 9/11 some countries, the US prominent among them, have been looking for any connection between piracy and international terrorism. The Southeast Asian countries would argue that so far there is no proven link in the Southeast Asian waters, but that they will be looking for any evidence since combating international terrorism is a common obligation for any civilized country, something the Bali terrorist acts have demonstrated. However, when the challenge is isolated to combating piracy, different perspectives and interests rule, and the various possible security options are controversial. Even the term ‘piracy’ is debated when it comes to the illegal activities that occur in various Southeast Asian straits, with the Malacca Strait prominent among them. Indonesia and Malaysia will argue that according to the definition of piracy in UNCLOS, there is no piracy taking place in the Malacca Strait, only armed robbery. Piracy is by definition an activity that takes place solely on the high seas, not in the territorial waters of some littoral state.1 Since the southern part of the Malacca Strait is so narrow (20 nautical miles), there are no international waters between the territorial borders of Indonesia and Malaysia. In fact, that makes these two countries the main littoral states of the Malacca Strait, while Singapore mainly borders the Singapore Strait. While all three countries are equally interested in safeguarding commercial shipping through the Malacca Strait, the difference in geographical location makes Singapore more relaxed when it comes to involving user states in the patrolling and policing of traffic. In this connection, one is always reminded that Indonesia and Malaysia fought vigorously in UNCLOS, and succeeded, to avoid the Malacca Strait and other straits

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Anders C. Sjaastad

from being defined as international straits. Thus, these straits permit innocent passage but the jurisdiction rests with the littoral states within their territorial borders of 12 nautical miles. According to the available statistics, the number of acts of piracy in the Southeast Asian waters is not great2 and does in reality encompass many different types of illegal activities as pointed out in the chapter by Catherine Zara Raymond. Although piracy in these waters has been a traditional trade for many centuries, the level increased after the Asian financial crisis of 1997–98 and despite variations, was a significant phenomenon until the tsunami struck in December 2004. The sharp drop in reported incidents suggested that the Aceh Province housed many pirates, with a number of them killed, and their boats destroyed, by the tsunami. After a lull of five months following the tsunami, the pirate activities started to increase again. It is a statistical fact that more acts of piracy take place on the Indonesian side of the Malacca Strait than on the Malaysian side. Indonesia is of course a vast littoral country and the authority of Jakarta is not greatly observed in the more remote parts of the country. Poverty is widespread, and the Asian financial crisis and the tsunami hit Indonesia very hard and dramatically worsened the situation for many already living close to subsistence level. Piracy is also bred by inefficient law enforcement capability in Indonesia, which is plagued by corrupt officials with a lack of resources at their disposal. Furthermore, there exist criminal syndicates who organize piracy from land and, for instance, recruit daytime fishermen to become pirates at night, executing various missions. Thus, piracy in these waters is to a significant extent an expression of the social and economic conditions existing on land. Poverty is consequently a recruitment factor.

Security options Security in Southeast Asia is commonly regarded to be firstly domestic, secondly bilateral/trilateral and only thirdly multilateral. In addition, security problems are frequently believed to be created by major powers infringing upon the sovereignty of the littoral states, particularly in connection with the security of the SLOCs. Thus, some Southeast Asian countries invoke as an absolute principle that no security cooperation should limit national sovereignty. Equally absolute is a second principle banning any outside interference in domestic affairs and in this connection ‘interference’ is defined comprehensively. Although these principles may sound familiar, reasonable and subscribed to by many newly independent countries, in Southeast Asia they are applied more vigorously than in most other places. Thus, unlike in Europe where there is frequently a trade-off between sovereignty and cooperation in order to enhance common security, these attitudes will severely limit many potentially viable multilateral security options and will even infringe upon the use of bilateral arrangements in Southeast Asia.

Southeast Asian SLOCs and security options

7

National security options The ability to pursue a successful national security policy differs significantly among the Southeast Asian countries. Malaysia has lately devoted significant resources to build up a national capacity to police and patrol the Malacca Strait. These efforts include spending a considerable amount of money to establish a monitoring system covering the Malacca Strait and the launch of a new maritime agency to boost security in Malaysia’s territorial waters, enforce maritime laws and conduct search and rescue operations.3 This coast guard, which became operational in November 2005, has the necessary assets available and in place for that to happen. But Malaysia is still willing to accept financial contributions from ‘user’ countries to cover both financial investments and operational costs of monitoring activities and surveillance of the straits. So far Japan has been the only user country to contribute financially to the Malacca Strait surveillance both through its shipowners’ association and via other channels. Indonesia on the other hand lacks resources to pay for any monitoring installations and would really need outside economic assistance. Only recently did Indonesia separate its police force from the military, a move that hopefully will lead to an increased law enforcement capacity since the Indonesian armed forces have never assigned any priority to fighting piracy in its waters. Japan has, in fact, financed a number of patrol boats to enable Indonesia to monitor the straits. Furthermore, Japan is also supposed to have helped Indonesia to acquire at least some surveillance capability. The Japanese efforts prove that Indonesia has difficulties in buying the necessary assets to police its territorial waters. Finally, Indonesian units have been training with the US Navy in conducting counterinsurgency and anti-piracy missions. However, defence ties between the two countries were largely severed in 1991, when Indonesian forces launched a bloody crackdown on pro-independence protesters in East Timor. In November 2005, the US resumed its military ties with Jakarta and is already providing defence equipment to Indonesia, largely to support maritime security.4 Bilateral security options Asia is full of bilateral security treaties, arrangements and relationships, and it is frequently difficult to evaluate correctly the significance of some of them. However, the most important treaties definitely carry an Asian-wide importance, such as the bilateral and mutual security treaties between the US and Japan, the US and South Korea and the US and Taiwan, and these treaties constitute security frameworks that influence the actions and behaviour of other security players on the Asian scene. The real significance of the so-called China–Russian ‘strategic partnership’ is more difficult to assess beyond observing that when these major countries are bent on cooperating – at least within certain parameters – rather than outright competing for power and influence, this will have a stabilizing effect on the Asian security environment. In 2005 they even conducted a joint naval exercise, code-named Peace Mission 2005,

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Anders C. Sjaastad

which was the first one ever, and this may be an indication of an emerging condominium in parts of East Asia despite the inherent Russian suspicion of China’s future ambitions. The troubling China–Japan relationship is also worth mentioning. Their historically based antagonism compounded by present-day territorial disputes in the East China Sea, is bound to be a defining element in Asian affairs. But the most decisive factor for Asian security is the evolving US–China relationship, partly characterized by cooperation in important fields but also dominated by rivalry for power and influence. How do the bilateral/trilateral agreements and relationships in Southeast Asia fit into this picture? In safeguarding the shipping activities in the Malacca Strait, one can speak of a loose trilateral cooperation. Malaysia and Indonesia have the closest relationship whereas Singapore, both in terms of geography and when it comes to shared interests, is a more distant partner. However, the limits to even the bilateral Malaysian–Indonesian cooperation are demonstrated when dealing with the sensitive topic of ‘hot pursuit’. ‘Hot pursuit’ would mean that one country’s law enforcement unit could follow a suspect across another state’s border and into its territorial waters, and if necessary, apply force. It is evident how useful such a mutual rule of engagement would be in fighting piracy, but it would also imply a concession in terms of sovereignty. Not surprisingly, once again the principle of unimpeded national sovereignty has won the day in Southeast Asia. All a legal follower can do is to ‘hand over’ the pursuit to the next country’s law enforcement agency, whether it is present or not. The consequence is of course a less efficient counter-piracy capability in the Malacca Strait and, to compensate at least partially for this inadequacy, there would have to be intimate mission coordination and shared real-time intelligence, of which none is available today. Third party assistance in monitoring and patrolling the Malacca Strait, apart from financial contributions, has also been declined by the littoral states. India, for instance, requested some time ago to have merchant shipping escorted by some private security organization under the pretext of guarding them against pirates. The request was viewed by Malaysia as unacceptable and was turned down. The reason was simply that although foreign escorts might be seen only as a marginal infringement upon the sovereignty of the littoral states, it could turn into a serious violation once an incident involved an exchange of fire. Japan has also proposed to ‘assist’ in patrolling the Malacca Strait with its coast guard, especially after a Japanese-registered tugboat was hijacked by pirates in early 2005. In 1997, a prominent Japanese think-tank had toyed with the notion of ‘ocean peacekeeping’ as a mission for Japan. More recently, Japan had indicated that it was prepared to renew its commitment to patrol the Malacca Strait. Whenever there is talk about Japan acquiring a new mission, whether it is nonmilitary in the sense that it is the Japanese Coast Guard getting involved or it is the Japanese Navy extending its ‘defence parameter’, it is usually seen by its Asian neighbours as part of a grand strategy. This creates, for obvious historical and political reasons, a lot of sensitivity in the various Asian capitals. And in light of the almost hostile reaction to the semi-official US proposal to use American assets in patrolling the Malacca Strait, some quarters tend to believe

Southeast Asian SLOCs and security options

9

that the new Japanese ‘activism’ is spurred by US pressure. Thus, the various Japanese proposals are likely to continue to be rejected. Nevertheless, to some Southeast Asian nations, Japan is still less objectionable than India when it comes to assuming a safeguarding role in the Southeast Asian waters, with the latter being the prime suspect for nurturing a hidden agenda. India, in fact, began its ‘Look East’ policy of engagement with its Southeast Asian neighbours in the 1990s, following the dissolution of the Soviet Union. In September 2005, India held its first naval exercise with Thailand and also concluded its semi-annual exercise with Indonesia, with both taking place near the mouth of the Malacca Strait. An Indian official had underlined that although India is not party to any security arrangement in the Malacca Strait, the immediate purpose of the joint patrols is to prevent smuggling, piracy, drug and gun trafficking, poaching and illegal immigration in the region.5 However, in Malaysian ears, for instance, this may not sound as unproblematic and innocent as it is presented. China on the other hand has so far represented no challenge to the sovereignty of the littoral states in the Malacca Strait, much unlike its policy in the South China Sea. With its booming energy and raw material imports and its increasing dependency on the Asian straits, China is – not surprisingly – concerned about the security of the SLOCs. Thus, it has indicated a willingness to contribute financially to the monitoring of the Malacca Strait. And recently it was announced that ‘China has agreed to work closely with Singapore and other regional countries to tackle the threat of terrorism and piracy in the Straits of Malacca’.6 From a Malaysian perspective, China is trying to behave as a good neighbour in order to counter US influence in Southeast Asia, whereas Malaysia itself is no stranger to a policy of balancing China against the US. There exists, no doubt, a lingering Malaysian suspicion that behind the US concern for the security of the Malacca Strait and its campaign against piracy, one can track an American ambition to establish some kind of legal regime in the Malacca Strait institutionalizing a multilateral responsibility for safeguarding the SLOCs. At the same time, there is a Malaysian notion that no major power should have any interest in threatening or disrupting the free flow of energy transport. Even China and Japan in their present moods would gain nothing by trying to prevent commercial ships from supplying the other country. Multilateral security options When dealing with potential multilateral security options for Asia, the most striking absence is the lack of available multinational security organizations. There exists neither an Asian collective defence alliance like the North Atlantic Treaty Organization (NATO) nor any collective security organization like the Organization for Security and Cooperation in Europe (OSCE). And although many Asians would argue that these European institutions are leftovers from the Cold War, few Westerners are ready even today to write off the utility of these organizations, particularly since they have been retailored to fit a new security environment. At least to an outside observer, most of Asia’s security predicaments

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Anders C. Sjaastad

continue to be more similar to the armed confrontation that existed in Europe during the Cold War than to the present-day post-Cold War era. However, regardless of what constructive role such institutions could have played in Asia’s future security equation, they are not even vaguely visible on the Asian horizon. At present, Asia has only three multilateral organizations of any security relevance – the AsiaPacific Economic Cooperation (APEC), the ASEAN Regional Forum (ARF) and the regional ASEAN itself. Of the three, APEC’s collective security significance is negligible beyond the military capability of the individual members which is substantial but never applied in a coordinated and mandated fashion. Thus, APEC is not much more than a meeting place for Asian-Pacific leaders and where mostly economic and trade issues are discussed. The ARF was originally conceived as a multilateral consultative forum to discuss and promote cooperative security within the ASEAN region and in particular, to ensure the involvement of China in a regional dialogue. The ARF has since its inception in 1993 discussed various security challenges, but it is noteworthy that the participating countries have conceded to a request by China not to debate explicitly about the Spratly Islands, although they have expressed concern about the overlapping sovereignty claims in the region.7 As membership exploded, it was decided in 1996 that the ARF would only admit as participants countries that had a direct influence on the peace and security of the East Asia and Pacific region. In July 2004 Pakistan joined the ARF process as its twenty-forth participant. In its 2002 meeting the ARF concentrated on preventing any financing of terrorism and later condemned the terrorist bomb attacks. However, apart from publishing the Annual Security Outlook in which participating countries submit assessments of the security prospects in the region, the ARF as an organization can hardly be said to have moved beyond issuing common statements. In the foreseeable future, the ARF is unlikely to become a forceful security actor in the Asia-Pacific region. ASEAN was originally created to establish trust and mutual confidence between distrustful and antagonistic countries. Paradoxically, it was set up to protect the national sovereignty and independence of member countries, not to limit their freedom through mandatory cooperation and regional integration. Nowhere is this more apparent than in ASEAN’s strict adherence to the principle of noninterference – the most notable exception being the repeated call for Myanmar to expedite its democracy pledges. Apart from such incidents, even ‘progressive’ ASEAN countries, who from time to time criticize this practice, are easily agitated once their own country and policies come under fire by fellow members and will, when the chips are down, readily abide by this principle. When ASEAN was established, it was not intended to be primarily an economic organization, since both then and even up to the present day many of the economic and trade agreements in Southeast Asia have been purely bilateral. Economic issues have, however, become dominant over time and this is currently the present situation. But since 9/11, security questions and especially the fight against international terrorism have come into increased focus. During the ASEAN Ministerial Meeting in June 2003, Indonesia formally proposed the establishment of an ASEAN Security Community (ASC), the idea

Southeast Asian SLOCs and security options

11

being that ‘ASEAN should work to transform itself from a strictly “conflict management” entity into a “conflict resolution” institution’ to make it more relevant and responsive to the new security challenges facing the region’.8 This resulted in the ASEAN leaders signing the Declaration of ASEAN Concord II, dubbed the Bali Concord II, during the ninth ASEAN Summit in October 2003 in Bali. The Bali Concord II provides for the creation of an ASEAN Community ‘comprising three pillars, namely political and security cooperation, economic cooperation, and socio-cultural cooperation that are closely intertwined and mutually reinforcing for the purpose of ensuring durable peace, stability and shared prosperity in the region’.9 In order to operationalize the ASC, ASEAN must strengthen already existing norms and institutions and, where necessary, establish new ones. Now the members are trying to spell out what shall constitute the security pillar. One complication for designing a comprehensive security strategy for the region is that the ASEAN countries still lack the European notion of shared security and the need to act collectively in confronting crises. Incidentally, that ‘mindset’ was also the traditional European approach to sovereignty and international institutions until the end of the Second World War. The wartime experience did, however, teach the Europeans a hard lesson about the inadequacy of purely national security. Lacking formal institutions and organizations in Asia, what can the countries do to improve the low level of cooperation through specific arrangements and codes of conduct? A key to solving many of the hot territorial disputes that underlie most of the Asian inter-state conflicts is to try to reach a meaningful compromise combined with an agreement for shared resource extraction in disputed offshore waters. At least in areas such as the South China Sea, the sovereignty of the islets and rocks have no inherent value apart from being the basis for claiming EEZs which can again give sole rights to fisheries and energy extraction. However, if these resources are somehow shared, the sovereignty issue becomes much less important. Even China and Japan are flirting with such ideas in the East China Sea and despite their currently strained relations, have conducted a series of negotiations to seek a mutually acceptable solution.10 If this line of approach continues to be too controversial, an alternative and interim solution can be to enter into a moratorium on territorial claims along the lines of the Antarctic Treaty of 1959. This treaty stipulates that ‘nothing contained in the treaty may be interpreted as a renunciation, denial, or support of a claim to territorial sovereignty in Antarctica’ and that no new claim may be asserted while the treaty is in force.11 The afore-mentioned declaration of intended conduct in the South China Sea could in this connection be turned into a more binding document to serve as a confidence-building measure to enhance mutual trust and security. While ASEAN-conducted naval exercises and military manoeuvres are still a distant proposition, some of the littoral member states are increasingly getting their act together when it comes to coordinated behaviour in the Southeast Asian region. In mid-2004 Indonesia, Malaysia and Singapore began coordinated naval patrols in the Malacca Strait. The plan was for all three countries to contribute up to seven ships to the patrol, but with each ship remaining under its own nation’s command.12 In late 2005 the three countries invited Thailand, as a close neighbour, to take part

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Anders C. Sjaastad

in the joint maritime patrols of the Malacca Strait.13 However, the policing of the Malacca Strait continues to be a sensitive diplomatic issue. Indonesia’s navy chief said in an interview in 2004 that foreign governments – including the US – were primarily interested in the waterway because it was economically strategic, rather than because of terrorism fears. Singapore on the other hand still holds out the possibility that it may require more help in patrolling its coasts in the future, and possibly from the US.14 In September 2005 the same four ASEAN nations launched joint air patrols of the Malacca Strait under the ‘Eyes in the Sky’ (EiS) programme, where planes from Indonesia, Malaysia, Singapore and Thailand are allowed to cross into each other’s air space. Initially, the four countries are taking turns conducting two patrols a week. In connection with the launch of the air patrols, the Malaysian Defence Minister stated: ‘Hopefully this will send a strong message to the international community that we are serious about maintaining the security of the Malacca Strait’ and he added that he hoped other countries, including Australia and the US, would offer to participate.15 The minister’s latter hope is worth noting in view of Indonesia’s and Malaysia’s instant rejection in 2004 of what appeared to be a US offer to have American forces help patrol the strait. While these joint patrols fall well short of what NATO used to deploy, for instance the standing naval forces in the Atlantic under joint command – the STANAVFORLANT – or the Alliance’s integrated air force surveillance, it is still a major step forward towards establishing multilateral security structures in Southeast Asia. Another important development would be for these countries to agree on a joint command and control system instead of leaving the ships and the airplanes under exclusive national command. However, that may for the foreseeable future be a bridge too far.

Notes 1 2 3 4 5 6 7 8

9 10

11

UN Convention on the Law of the Sea, Article 101. The figures vary significantly from year to year. 2005 saw only 12 pirate attacks in the Malacca Strait, the lowest figure in seven years and down from 38 attacks in 2004. See The Strait Times Interactive, 31 January 2006. ‘Malaysia to launch new maritime security force’, The Strait Times, 11 October 2005. The New York Times, 27 February 2006. ‘India sees new strategic sea lane in Andaman Sea’, Daily Times, 30 September 2005. Channelnewsasia.com, 25 October 2005. The Far East and Australasia, 36th Edition, London: Europa Publications, 2005, pp. 1280–1. C. R. Carlos, ‘Towards a regional rapid response experts cooperation group in the Asia Pacific: issues and challenges’, Perspectives on Asia-Pacific Security for the 21st Century, Conference arranged by the Asia-Pacific Center for Security Studies, Honolulu, Hawaii, 12–13 September 2005. Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia, 7 October 2003. Both parties have suggested various schemes for joint development of energy resources in the East China Sea. However, since the two sides disagree over the position of the border between their EEZs, they have failed to agree on the geographical areas of cooperation. SCMP.COM, 24 March 2006. Antarctic Treaty, Article 4.

Southeast Asian SLOCs and security options 12 13 14 15

‘Anti-piracy drive in Malacca Straits’, BBC News, 20 July 2004. The Jakarta Post, 12 December 2005. ‘Anti-piracy drive in Malacca Straits’. ‘Air patrols for Malacca Strait’, BBC News, 13 September 2005.

13

2

Re-thinking the safety of navigation in the Malacca Strait Barry Desker

There is now increased concern over the issue of maritime security in the Malacca Strait. Most discussions have focused on the risk of maritime terrorism.1 However, this is a ‘low probability, high impact scenario’ that attracts attention because of the post-9/11 heightened awareness of the threat arising from acts of terrorism and political violence. In reality, the key issue that should be addressed in assessing the safety of shipping in the Straits of Malacca and Singapore is the question of the safety of navigation. As shipping traffic through the straits increases exponentially, the probability of collisions, oil spills and shipwrecks has increased in tandem. The debate over the threat of maritime terrorism has over-shadowed the importance of upgrading safety and navigational aids, including electronic information systems, vessel monitoring systems, the maintenance of navigational beacons and effective means for identifying shipping traffic across and through the straits and minimizing the risk of collisions. I am not arguing against the increased focus on maritime security and the need for vigilance against the threat of terrorism. I am stressing that the international community should not be so preoccupied with the terrorist threat that it ignores the more vital, but less newsworthy, task of ensuring that the increased shipping traffic through the straits does not overwhelm the infrastructure that exists to ensure a continued smooth flow of international shipping across and through the Straits of Malacca and Singapore. Two examples suffice to highlight the significance of the Straits of Malacca and Singapore to international shipping. First, oil flows through the straits are three times greater than the Suez Canal/Sumed pipeline and 15 times greater than oil flows through the Panama Canal. Second, two-thirds of the tonnage passing through the straits consists of crude oil from the Persian Gulf bound for Japan, South Korea and increasingly, China. More than half of the world’s shipping tonnage passes through the straits. The International Maritime Organization (IMO) estimates that if for some reason the straits were closed, all excess shipping capacity would be absorbed, ‘with the effects being strongest for crude oil shipments and dry bulk cargoes such as coal... [which] could be expected to immediately raise freight rates worldwide’.2 From a regional standpoint, the increase in intra-regional trade has resulted in the expansion of cross-straits cargo and passenger traffic, increasing the risk of collision and accidents arising from human error or mechanical failure.

The safety of navigation in the Malacca Strait

15

September 11 changed the way the civil aviation community approached the handling of hijacking incidents because the intention of the hijackers was to kill as many as possible in suicide attacks. In the past, the intention was to get as much publicity and as much ransom as possible with the minimum loss of life. Similarly, the maritime community is now paying greater attention to the risk of ‘low probability, high impact scenarios’ such as the possible hijacking of a tanker or a liquefied natural gas (LNG) carrier for use as a human-guided missile, or an attack on a commercial or naval vessel at narrow points in the straits intended to disrupt traffic flows within the waterway. It must be recognized that the idea is not so far-fetched. Jemaah Islamiyah operatives arrested in Singapore in late 2001 had undertaken operational surveillance and considered the possibility of an attack on US naval vessels in Singapore waters off the Straits of Singapore. At its narrowest point, between Raffles Lighthouse and Batu Berhenti, the Straits of Singapore is 1.2 nautical miles wide, creating a natural bottleneck if there were a collision or grounding, aside from the probable pollution of the maritime environment. Nevertheless, our concern with this possibility should not result in our lack of attention to the importance of the maintenance and upgrading of the safety and navigational aids in the Straits of Malacca and Singapore. One of the consequences of the Asian financial crisis of 1997–8 and the aftermath of the overthrow of President Soeharto in Indonesia was the reduction in funding for the upkeep and maintenance of such social infrastructure in Indonesia. In the post-Soeharto era, the move towards greater regional autonomy and the devolution of power to the provinces has meant that the central government in Jakarta has fewer resources to expend on areas with no direct impact on Indonesian society. From Jakarta’s perspective, the provision of navigational and safety aids is the responsibility of the international shipping community, even while Indonesia adopts a territorial perspective on the issue of freedom of navigation through the Malacca Strait and remains committed to the principle of the primary role of the littoral states in ensuring the safety and security of navigation. Part of the problem is that a clear distinction existed earlier between maritime safety and maritime security. Maritime security dealt with ‘those measures employed by owners, operators and administrators of vessel, port facilities, offshore installations, and other marine organizations or establishments to protect against seizure, sabotage, piracy, pilferage, annoyance or surprise’.3 Maritime safety, on the other hand, dealt with ‘those measures employed by owners, operators and administrators of vessel, port facilities, offshore installations and other marine organizations or establishments to prevent or minimize the occurrence of mishaps or incidents at the sea that may be caused by sub-standard ships, unqualified crew or operator error’.4 The IMO focused on maritime safety issues while security issues were deemed to be within the provenance of the security authorities of states. Post-9/11, this traditional dichotomy between safety and security in the maritime realm has given way to a growing realization that a close inter-relationship exists between maritime safety and maritime security. Maritime safety is now regarded as an integral part of maritime security.

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Barry Desker

However, the argument of this assessment is that the concept of maritime security goes well beyond maritime safety issues and maritime counter-terrorism operations and should include attention to transnational crimes including piracy, armed robbery, environmental pollution and people, weapons and narcotics smuggling. A comprehensive approach to the question of maritime security would therefore be multidimensional and would be reflective of the newer post-Cold War security agenda. Such an approach would recognize the shift in attitudes towards governance. Instead of the earlier attachment in Southeast Asia to noninterference and non-intervention and an emphasis on the sovereignty of states, newer norms are emerging which emphasize the commitment of the international community to intervene if there are communities at risk. The rise of doctrines proclaiming the importance of human security, the right to protection and the importance of regional and international institutions has paved the way for a review of approaches to the management of straits and waterways used for international shipping. Traditionally, the emphasis was on the interests and concerns of the littoral states. However, because such straits were seen as international highways with vessels engaged in transit bearing no responsibility for reducing the risk of accidents, collisions, oil spills and trans-boundary crimes, the shipping community was unwilling to bear the costs of measures designed to increase the safety and security of navigation. On the other hand, for the littoral states, there was no incentive to spend scarce domestic resources for upgrading facilities which earned no revenues. The littoral states used international institutions such as the IMO to remind the user states of their responsibility for meeting the costs of such upgrading without offering a commensurate increase in their role in the governance of the transit regime. The changed strategic environment in the Straits of Malacca and Singapore provides an opportunity to rethink the relationship between the littoral states and the user states. Instead of a focus on sovereignty and the national interest of states, greater attention should be given to the impact on the global community of disruptions to international commerce if straits used for international shipping are closed because of errors of omission or commission. This new environment is of particular interest to two communities of states. First, the littoral states – Indonesia, Malaysia and Singapore – because of the threat of pollution and the possible risk of attacks on onshore facilities. Second, the user states, especially China, Japan and South Korea, which are dependent on the Malacca Strait for the smooth and efficient transit of cargo, especially energy supplies. Other user states are the major maritime powers, such as the United States, which are concerned about the possible threat to their naval vessels traversing through the straits. While the threat of terrorism is low, the concern with possible risks has created an environment supportive of a reassessment of the benefits and costs of regional and international cooperation. The changing attitude on the issue of governance was signaled at a meeting of foreign ministers of the three littoral states in Batam on 2 August 2005. The ministers ‘welcomed the assistance of the user states, relevant international agencies and the shipping community’ in ensuring the safety of the Straits of Malacca and Singapore. Besides the involvement of the major users of the straits, the three

The safety of navigation in the Malacca Strait

17

ministers highlighted the need to engage the states bordering what they described as the ‘funnels’ leading into both straits, including countries such as India and Thailand. While Singapore had been an advocate of a greater role for user states, Malaysia and Indonesia had earlier resisted such pressures because it was perceived as a diminution of their sovereignty.5 The change in attitudes also reflected changes in the strategic and economic interests of the littoral states. As Port Kelang and Tanjong Pelapas Port have become significant ports and have attracted growing volumes of trans-shipment cargo, Malaysia’s interests increasingly parallel Singapore’s interest in ensuring the safety of navigation for international shipping and the maintenance of the security of sea lanes in the straits. Indonesia’s acquiescence occurred because its newly elected leaders sought the revival of its economy and wanted to be seen as supportive of greater international cooperation in maintaining the security of sea lanes in the light of increased international attention to the terrorist threat in the region, especially in Indonesia. India’s interest in the straits had been evident after 9/11 when Indian naval vessels had escorted US vessels transiting the straits. The interest in Thai involvement was indicative of regional concern with the brewing crisis in southern Thailand where a homegrown insurgency has been invigorated in recent years and there are growing concerns that Muslim militancy elsewhere in Southeast Asia, as well as the Middle East, may influence trends in the country. At the same time, neither were the positions of user states static. While Japan retained an interest in influencing the deliberative process through its funding of navigational and safety aids, China’s rising importance as a global economic power was highlighted by China’s subtle shift from a coastal state perspective on transit through international straits to that of a user state. Similarly, the growing importance of South Korea in international trade was seen in the close interest in these deliberations by the Korean agencies. These trends provide an opportunity for the strengthening of international and regional institutions. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) was cognizant of the interest of user states in unimpeded passage through and over the straits used for international shipping. It limited the right of the littoral states to regulate the passage of ships traversing the straits but recognized the jurisdiction of the littoral states over illegal activities taking place within their territorial waters. Article 43 of UNCLOS provided for burden-sharing agreements between the littoral states and user states: ‘(a) in the establishment and maintenance in a strait of necessary navigational and (b) safety aids and other improvements in aid of international navigation; and for the prevention, reduction and control of pollution from ships’.6 However, until recently, there was little movement towards implementing such agreements. There is now an emerging awareness of the need for a new architecture facilitating cooperative arrangements involving the littoral states as well as user states. The groundwork has been laid by the Joint Statement of the forth Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore held in Batam in August 2005 and in the Statement on the Enhancement of Safety, Security and Environmental Protection in the Straits of

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Barry Desker

Malacca and Singapore agreed at the meeting convened by the IMO and the Indonesian Government in Jakarta in September 2005. The Jakarta meeting agreed that a mechanism be established to provide for regular meetings between the littoral states, the user states, the shipping industry and others with an interest in safe navigation through the straits. Such an inclusive process will strengthen the commitment of user states to meet the costs of upgrading the capabilities of the littoral states. It will also encourage the user states to ensure the provision of safety and navigational aids and the establishment of state-of-the-art electronic information systems. Over the longer term, the formation of a regional coordinating centre could be envisaged. The centre could help coordinate responses by naval, coast guard and marine police capabilities operating in or traversing through the straits in the event of acts of piracy or maritime terrorism. Such a development would highlight two critical challenges facing the littoral states, user states as well as the international shipping community. First, the need for greater information and intelligence sharing between states as well as internally between navies, coastguard, police and intelligence agencies. Too often, action against transnational crime is hampered by the existence of a ‘stovepipe’ mentality instead of a networked approach. Second, it would refocus attention on the provision of cutting edge safety and navigational aids in the Straits of Malacca and Singapore. This is a critical need but has recently been overshadowed by the emphasis on the risk of maritime terrorism.

Notes 1

2 3

4 5 6

G. de Vries, The European Council’s Counter-Terrorism Coordinator, as reported in ‘Militants a long-term threat in Malacca Strait: EU anti-terror chief’, Associated Press Newswires, 2 February 2006. Also see ‘Malacca Strait declared a high risk zone by joint war committee’, Lloyd’s List, 1 July 2005. ‘Protection of vital shipping lanes’, C 93/ 5 – Note by the Secretary-General, International Maritime Organization, 7 October 2004. M. Q. Mejia Jr., ‘Defining maritime violence and maritime security’ in P. K. Mukherjee, M. Q. Mejia Jr. and G. M. Gauci (eds) Maritime Violence and Other Security Issues at Sea, Proceedings of the Symposium on Maritime Violence and Other Security Issues at Sea, World Maritime University, Malmö, Sweden, 26–30 August 2002, pp. 27–38. Ibid. D. Urquhart, ‘Breakthrough in ensuring Malacca Straits security; three nations agree to involve wider international community’, The Business Times Singapore, 3 August 2005. Article 43 of 1982 UNCLOS. Available online at: (accessed 15 February 2006).

PART II

Challenges

3

The importance and security of regional sea lanes Joshua Ho

The rise of Asia The emergence of China and India as new major global players is expected to transform the regional geopolitical landscape. Fuelling this rise is the combination of high economic growth, expanding military capabilities, and large populations. For example, the combined 2002 gross domestic products (GDP) of China, India and Japan are already half that of the United States in nominal terms.1 A study by the National Intelligence Council in the United States has forecasted that by 2015, the combined GDPs of China, India and Japan would surpass that of the United States and the European Union at US$19.8 trillion, US$14 trillion and US$11.6 trillion respectively in 1998 dollars.2 By 2050, Goldman Sachs has projected that the situation will become even more astounding when the combined GDPs of China, India and Japan will be slightly more than twice that of the United States and about four times that of France, Germany, Italy, Russia and the United Kingdom combined in 2003 dollars.3 In 2050, therefore, the largest economies in the world will be China, United States and India respectively, with Japan at a distant fourth. Because of the sheer size of China’s and India’s populations – projected by the US Census Bureau to be 1.4 billion and almost 1.3 billion respectively by 2020 – their standard of living need not approach Western levels for these countries to become important economic powers. Besides China, India and Japan, the economies of other developing countries, such as Indonesia, could also approach the economies of individual European countries by 2020. Experts assess that over the course of the next decade and a half, Indonesia may revert to a high growth of 6 – 7 per cent, which along with its expected increase in its relatively large population from 226 to around 250 million, would make it one of the largest developing economies. The rise of these regional powers, a virtual certainty barring any unforeseen reversals to the globalization process, means that dependence on the regional sea lanes will increase. This is because countries in the region depend on the sea as a medium of transportation and in particular, the sea lanes along Southeast Asia are vital to the transportation of goods, energy and raw materials to the dynamic economies of Northeast Asia.

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Joshua Ho

Major sea lanes in Southeast Asia The major sea lanes in Southeast Asia are constricted at key straits such as the Malacca and Singapore Straits, the Sunda Strait and the Lombok Strait. The Strait of Malacca is 600 miles long, is the main corridor between the Indian Ocean and the South China Sea and is the major sea lane used by tankers from the Middle East. About 26 tankers, including three fully loaded supertankers heading for Asian ports, pass through the strait daily. Because the strait is relatively shallow, being only 21.8 metres deep at some points, the maximum recommended draught by the International Maritime Organization for passing ships is 19.8 metres. The navigable channel at its narrowest point is only 1.5 miles wide. In terms of total volume, more than 200 boats pass through the Strait of Malacca on a daily basis, or about 63,000 on an annual basis, carrying 80 per cent of the oil transported to Northeast Asia.4 In terms of value, the total tonnage carried by the Malacca Strait amount to 525 million metric tonnes worth a total of US$390 billion.5 The amount of traffic makes it the second busiest strait in the world currently and it is likely to be even busier in the future as a result of increasing trade flows and energy demands in Asia. According to Lloyd’s List bulletin, new orders for 200 liquefied natural gas (LNG) carriers will be required to satisfy the growth in demand during the next 15 years. The trend of increasing traffic has also been observed for the traffic data as reported via the mandatory ship reporting system, STRAITREP from 1999–2004, which indicates that traffic in the Malacca Strait has increased by 45 per cent within the six-year period.6 Norwegian flagged ships accounted for 2.5 per cent of the tonnage through the strait which was carried by 231 ships, making them the eleventh largest carrier. On the other hand, Norwegian owned ships accounted for 3.6 per cent of the tonnage through the strait carried by 315 ships, which makes them the tenth largest carrier through the strait. The average deadweight tonnage (DWT) for the Norwegian ships was about 57,000 DWT. Singapore flagged ships accounted for 8.8 per cent of the total tonnage carried through the straits by 580 ships, making them also the third largest carrier. Singapore owned ships accounted for 8.6 per cent of the tonnage through the straits, which was carried by 571 ships, making them the third largest carrier. The average deadweight tonnage for the Singapore ships was about 26,000 DWT. 7 The Lombok Strait is wider, deeper and less congested than the Strait of Malacca. The minimum passage width in the Lombok Strait is 11.5 miles and the depths are greater than 150 metres. It is therefore considered the safest route for supertankers and the bigger of these eastbound ships sometimes transit this channel. For example, tankers with draughts exceeding 19.8 metres have to divert through the Lombok Strait due to the depth constraints of the Malacca Strait. Most ships transiting the Lombok Strait also pass through the Makassar Strait, which has an available width of 11 miles and a length of 600 miles. About 418 ships transit the Lombok Strait annually and the total tonnage carried by the Lombok Strait amounts to 36 million metric tonnes.8 Ships carrying iron ore from Australia to China also enter the Indonesian archipelago through the Lombok Strait. Norwegian flagged ships accounted for 2.9 per cent of the tonnage through

The importance and security of regional sea lanes

Number of ships

70,000 55,957

60,000 50,000

59,314

60,034

62,334

63,636

2001

2002

2003

2004

23

43,965

40,000 30,000 20,000 10,000 0

1999

2000

Year

Figure 3.1 Shipping density in the Malacca Strait from 1999 to 2004. Source: STRAITREP data from 1999 to 2004

the Lombok Strait carried by four ships, making them the eleventh largest carrier and Norwegian owned ships accounted for 4.6 per cent of the tonnage through the Lombok Strait carried by 11 ships, making them the sixth largest carrier. Most of these ships appear to be ultra large crude carriers (ULCCs) as the average deadweight tonnage of these ships was about 215,000 DWT. On the other hand, Singapore flagged ships accounted for 6 per cent of the total tonnage through the Lombok Strait carried by 27 ships, making them the fifth largest carrier, whilst Singapore owned ships accounted for 6.3 per cent of the total tonnage through the Lombok Strait carried by 26 ships, making them the fourth largest carrier. The average deadweight tonnage of these ships was about 35,000 DWT.9 The last of the three straits is the Sunda Strait. It is 50 miles long and is another alternative to the Malacca Strait. Its north-eastern entrance is 15 miles wide, but because of its strong currents and limited depth, deep draught ships of over 100,000 deadweight tonnes do not transit the strait and it is not as heavily used. About 2,300 ships transit the Sunda Strait annually and the total tonnage carried by the Sunda Strait is 111 million metric tonnes.10 Norwegian flagged ships accounted for 3 per cent of the total tonnage through the Sunda Strait, carried by 30 ships, making them the tenth largest carrier, and Norwegian owners accounted for 5.3 per cent of the total tonnage through the Sunda Strait, carried by 45 ships, making them the seventh largest carrier. The average deadweight tonnage of these ships was 90,000 DWT. Singapore flagged ships accounted for 6.2 per cent of the total tonnage through the Sunda Strait, carried by 71 ships, making them the fifth largest carrier, whilst Singapore owners accounted for 7.5 per cent of the total tonnage through the Sunda Strait, carried by 73 ships, making them the fourth largest carrier. The average deadweight tonnage of these ships was 50,000 DWT.11 Besides the transportation of oil and iron ore to the major economies in Northeast Asia – China, Japan, Taiwan and South Korea – the Malacca Strait and the Sunda Strait also carry a significant amount of container traffic given that large ports sit astride both these sea lanes. The ports that lie along the Malacca and Singapore Straits include Singapore, Port Klang and Tanjung Pelepas. The

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Joshua Ho

Table 3.1 Breakdown of Norwegian and Singapore ships that transit the Malacca, Lombok and Sunda Straits (by flag state) Malacca and Singapore Straits Norwegian flagged ships Tonnage carried Proportion of total tonnage Average DWT No. of passages No. of different ships Lombok Strait Tonnage carried Proportion of total tonnage Average DWT No. of passages No. of different ships Sunda Strait Tonnage carried Proportion of total tonnage Average DWT No. of passages No. of different ships

Singapore flagged ships

All ships

74,544,908

263,861,059

2,988,761,500

2.5% 56,091 1,329 231

8.8% 26,336 10,019 580

100.0% 39,581 75,510 8,678

1,072,606

2,189,032

36,663,855

2.9% 214,521 5 4

6.0% 32,672 67 27

100.0% 60,702 604 418

3,343,149

43,947

111,127,598

3.0% 85,722 39 30

6.2% 43,947 157 71

100.0% 48,783 1,320 2,278

Source: Study on passage through the Straits of Malacca and Singapore, 2001, Japan Maritime Research Institute, March 2002

fourth port, Tanjung Priok, is situated on the Sunda Strait. In addition, Singapore is a major transhipment hub located along the east–west main route within the global hub and spoke container network. To give an idea of how much container traffic was handled at each port, based on year 2004 data, Singapore was the second largest container port in the world, handling 20.6 million 20-foot equivalent units (TEUs), Port Klang was the thirteenth largest container port in the world, handling 5.2 million TEUs, Tanjung Pelepas was the sixteenth largest container port in the world, handling 4 million TEUs and Tanjung Priok was the twentythird largest container port in the world, handling 3.3 million TEUs.12 Because the Malacca, Lombok and Sunda Straits are so important to the transportation of oil and raw material, such as iron ore, as well as for the conveyance of container traffic, the free and safe navigation of commercial vessels in these sea lanes has become an important issue. In this respect piracy and terrorism are major threats to the security of shipping in the sea lanes of Southeast Asia. Of the three straits, the Malacca and Singapore Straits are by far the most important and the following analysis is focused solely on the Malacca and Singapore Straits.

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Table 3.2 Breakdown of Norwegian and Singapore ships that transit the Malacca, Lombok and Sunda Straits (by shipowner nationality) Malacca and Singapore Straits Norwegian owned ships Tonnage carried Proportion of total tonnage Average DWT No. of passages No. of different ships Lombok Strait Tonnage carried Proportion of Total tonnage Average DWT No. of passages No. of different ships Sunda Strait Tonnage carried Proportion of total tonnage Average DWT No. of passages No. of different ships

Singapore owned ships

All ships

108,907,101

258,487,942

2,988,761,500

3.6% 57,109 1,907 315

8.6% 26,245 9,849 571

100.0% 39,581 75,510 8,678

1,635,892

2,236,723

36,663,855

4.6% 136,324 12 11

6.3% 36,668 61 26

100.0% 60,702 604 418

5,923,665

8,334,465

111,127,598

5.3% 91,133 65 45

7.5% 51,132 163 73

100.0% 48,783 1,320 2,278

Source: Study on passage through the Straits of Malacca and Singapore, 2001, Japan Maritime Research Institute, March 2002

Piracy and armed robbery According to the International Chamber of Commerce’s International Maritime Bureau (IMB), the number of piracy and armed robbery attacks on shipping throughout the world in 2004 was 325.13 This represents a significant drop in the number of attacks from the previous year of 445 in 2003, but is still the fifth highest rate since data was collected in 1992. The highest number of incidents of piracy occurred in 2000 when 469 incidents were reported throughout the world. Despite the drop in worldwide pirate or armed robbery attacks in 2004, attacks in the Malacca and Singapore Straits continued unabated and remained at a high level of 41 incidents for the period 2003–4. However, the trend seems to have reversed somewhat in 2005. The number of attacks in 2005 has dropped significantly as compared to the same period in 2004. The drop can be attributed to the measures that have been taken by the littoral states adjoining the Malacca and Singapore Straits and also due to the peace process that has been unfolding in Aceh. The devastating tsunami that unleashed itself on Boxing Day of 2004 could also have reduced the capacity of the pirates to commit armed robbery.

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Joshua Ho 120

Actual

107

Attempted

No. of attacks

100 80 60

Total

69 56 51

40

43 26

26 17

20

35

41

63 41

28

22

9

19 10 9

0 2000

2001

2002

2003

2004

2005

Year

Figure 3.2 Total number of piracy and armed robbery attacks in the Malacca and Singapore Straits from 2000 to 2005. Source: IMB Annual Piracy Reports 2000–2005

Despite the drop in the number of incidences of piracy and armed robbery, the emphasis on combating the phenomenon is important, as sea piracy has been linked to the threat of maritime terrorist attacks since the events of 11 September 2001.14 Despite the link, there has been wide acceptance in the region of the different root causes of piracy and terrorism, with pirates being financially motivated and the terrorist being politically and religiously motivated to redress perceived injustices. This difference is the key in determining the long-term approaches to combat both phenomena even if short-term measures may be similar. Even so, we must continue to watch for the possibility of an overlap between piracy and maritime terrorism simply because the manner of operations is similar and it is difficult to distinguish between the two when an incident is unfolding. Piracy thus forms the background noise from which maritime terrorist attacks may materialize.

Maritime terrorism Besides piracy, another threat to resource and trade security is the spectre of maritime terrorism. In the new era of globalization, ports have evolved from being traditional interfaces between sea and land to providers of complete logistics networks brought about chiefly by containerization. Containerization has made it possible for the carriers to shift from a port-to-port focus to a door-to-door focus enabled by intermodalism (the interchangeability of the various modes of transporting the container by road, rail or sea) whereby goods move from the point of production, without being opened, until they reach the point of sale or final destination. As a result of ports being providers of complete logistics networks, high-volume, mainline trade will focus on just a few mega ports, making these ports the critical nodes of global seaborne trade.15 So important are hub ports in the global trading system that it has been estimated that the global economic impact from a closure of the hub port of

The importance and security of regional sea lanes

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Singapore alone could easily exceed US$200 billion per year from disruptions to inventory and production cycles. Hub ports therefore are potential lucrative targets for terrorists. A few scenarios that have been painted include the hijacking of carriers of liquefied petroleum gas and turning them into floating bombs to disable ports, as well as the detonation of a ‘dirty bomb’ in a hub port.16 Besides attacks on hub ports, attacks on shipping can also be an attractive option for maritime terrorists. If attacks on shipping become severe, it is possible that ships may choose to divert from the current sea lanes to a safer route. The diversion could also impose costs to the industry. A study done by the US National Defence University has concluded that if the Lombok, Malacca, Makassar, Sunda Straits and the South China Sea were blocked and all the ships were to divert around Australia, the extra steaming costs would account for US$8 billion dollars a year based on 1993 trade flows.17 No doubt, the cost will be even higher if current trade flows were used for the cost estimate. Despite the scary scenarios that have been painted and the possibility of maritime terrorism taking place, current signs are that Southeast Asian terrorists have not moved beyond the conduct of ferry bombings and the use of bomb-laden small boats as weapons as in the Limburg and USS Cole incidents. The possibility of maritime attacks occurring in the Malacca and Singapore Straits is assessed to be low at the moment. For example, there is no indication that the Jemaah Islamiyah (JI) is planning any attacks in the maritime domain. As their leaders continue to be arrested and as their operations become even more heavily curtailed due to police action in Indonesia, it is unlikely that JI and their members have been able to move up the value chain in terms of sophistication in the conduct of attacks as they have had to continually train new members. As a result, it is likely that they will stick with what they are familiar with – the conduct of land attacks with improvised home-made bombs – and recent attacks in Indonesia have vindicated this. The other group known to conduct maritime attacks is the Abu Sayyaf group in the Philippines, but attacks there have been largely confined to ferry bombings and limited to the Philippine archipelago. The Abu Sayyaf group has also been under pressure as Philippine and American troops have continued to harass their bases in Mindanao.

National countermeasures Being cognisant of the threats, all the three littoral straits that line the strategic waterways have already taken steps to address the threats of piracy and maritime terrorism. This has mainly been in the upgrading of patrol assets, increasing surveillance of the affected areas through radar and the deployment of ships, the build-up of specially trained and dedicated assets that can respond to incidents, as well as compliance with international measures such as the International Ship and Port Facility Security (ISPS) Code. The Indonesian Navy (TNI-AL) has, for example, moved to upgrade its patrol platforms, increase its patrols, and set up Navy Control Command Centres in the affected areas, such as in Batam and Belawan. The TNI-AL also operate the communications frequencies and hotlines

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that have been made available to the shipping community to contact in response to a pirate incident and placed special forces that can respond immediately to hijackings.18 There are also plans by the Indonesians to install a chain of radar stations along the Sumatran coast. This will complement the radar stations that the Malaysians and Singaporeans have along their respective coastlines as well. In addition to the hard measures adopted, the Indonesian Ministry of Home Affairs has also undertaken programmes to alleviate poverty and increase the people’s welfare in the remote areas. In particular, the six regencies of Rokan, Hilir, Bengkalis, Siak, Palawan, Indragiri Ilir and Karimun that border the Malacca and Singapore Straits are currently the main priority areas. The next priority is then given to the tens of regencies that border the other sea lanes of communication (SLOCs) through Indonesia.19 Malaysia of course has increased its surveillance through its string of radar stations, as well as increased its presence in the affected areas by intensifying training activities there to act as a deterrent. In addition, troops have been stationed on remote islands in the straits which may become havens for pirates.20 Malaysia has also set up a dedicated anti-piracy task force to deal with the issue and will deploy assault weapons on the softer targets like tugs and barges.21 One important measure adopted by the Malaysians is the formation of the Malaysian Maritime Enforcement Agency (MMEA), the equivalent of a coast guard, which began operations on 30 November 2005. The MMEA brings together several existing maritime enforcement agencies such as the Royal Malaysian Navy, the Royal Malaysian Marine Police, the Fisheries Department, the Customs and Excise Department, and the Marine Departments. The consolidation of maritime related agencies into a single command of the MMEA will enable more focus and enhance the ability to deal with maritime related offences. 22 Singapore has also implemented a range of measures to step up maritime security. These include an integrated surveillance and information network for tracking and investigating suspicious movements, intensified navy and coastguard patrols, random escorts of high-value merchant vessels plying the Singapore Strait and adjacent waters, and the re-designation of shipping routes to minimize the convergence of small craft with high-risk merchant vessels.23 In addition, Singapore has also formed the Accompanying Sea Security Teams (ASSeT), similar to armed marshals, to board selected merchant ships proceeding into and out of the harbour to prevent the possibility of a ship being taken over by terrorists.24 More importantly, Singapore has gone beyond the requirements of the ISPS code or the requirement of the automatic identification system (AIS) regime by introducing a harbour transponder system known as HARTS, which will track the location of vessels of less than 300 gross tonnes within its port limits. Most of the fishing vessels, pleasure crafts, ferries, and speedboats fall within this tonnage category and there are currently no international agreements that mandate the tracking of vessels in this weight class even though the most likely modus operandi for terrorists conducting a maritime attack will be the use of a small bomb-laden boat.

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Bilateral countermeasures Besides individual measures, there have been efforts at bilateral cooperation based on a web approach. Indonesia and Singapore agreed in 1992 to establish the Indonesia–Singapore Coordinated Patrols in the Singapore Strait. This has involved the setting up of direct communication links between their navies and the organization of coordinated patrols every three months in the Singapore Straits.25 Singapore and Indonesia have announced the setting up of a joint surveillance system, known as Project SURPIC that covers the Singapore Straits.26 Indonesia and Malaysia also decided in 1992 to establish a Maritime Operation Planning Team to coordinate patrols in the Straits of Malacca. The Malaysia–Indonesia Coordinated Patrols are done four times a year, and so is the Malaysia–Indonesia Maritime Operational Coordinated Patrol, which is conducted together with other maritime institutions, such as customs, search and rescue, and police from the two countries.27 Besides the three littoral states, other countries are also beginning to get involved in the security of the Malacca Strait. For example, since September 2004, the Indian and Indonesian Navies have begun joint patrols of the Six Degree Channel, the waterway just west of the Strait of Malacca, which lies between Indonesia’s Sabang Island and the coast of Aceh in Sumatra and India’s Nicobar Islands. All international shipping entering or leaving the Malacca Strait normally transit the Six Degree Channel.28 Malaysia and Thailand have publicly increased the intensity of their cooperative maritime patrols in the northern portion of the Strait of Malacca due to concerns regarding arms smuggling, insurgents and terrorists operating in the area in September 2003.29 The US has also conducted anti-piracy exercises with Indonesia, which has involved the boarding and inspection of shipping with the exercise being called Crisis Action Planning SMEE 05–03.30 China too is determined to get into the act as she signed a strategic partnership agreement with Indonesia in May 2005, with one of the items being possible increased maritime cooperation to combat smuggling and piracy.31

Multilateral countermeasures Malacca Strait Coordinated Patrols In comparison to the bilateral cooperation that exists in Southeast Asia, the multilateral response to piracy and maritime terrorism has been more limited and only starting to take shape. Although many multilateral forums exist, such as the Asia-Pacific Economic Cooperation (APEC), the Association of Southeast Asian Nations (ASEAN), the ASEAN Regional Forum (ARF) and ASEAN Plus Three, very few concrete operational measures have actually materialized from these high-level forums to deal with maritime security. The most concrete of the measures have been the trilateral Malacca Strait Coordinated Patrols (Operation MALSINDO) conducted by the three littoral straits of Indonesia, Malaysia and Singapore since July 2004. Currently, 17 ships have been allocated to the patrols:

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seven from Indonesia; five from Malaysia; and five from Singapore. The first trilateral naval patrols were launched in July 2004 and are aimed at reducing piracy and smuggling activities in the straits on a 24/7 basis with each country conducting the patrols within its own territorial waters. Besides round-the-clock naval patrols, coordination between the navies of the three countries has also improved as a result of the operation. A hotline linking the three naval command centres in Batam, Lumut and Changi has been set up which will allow each country to hand over to another the pursuit of pirates who cross borders on a 24-hour basis. In addition, merchant vessels have also been given radio frequencies used by the naval vessels in the area to allow them to call for help directly on the ground when required. ‘Eyes in the Sky’ initiative Another initiative that has taken place is the ‘Eyes in the Sky’ (EiS) initiative mooted by the Malaysians. Launched in September 2005, the initiative augments MALSINDO and involves the conduct of maritime air patrols in the Malacca Strait by the three littoral countries and Thailand. The participating countries each contribute two maritime patrol aircraft (MPA) sorties per week for the EiS and each MPA is allowed to fly above the waters of the states in question no less than three nautical miles from land. Each aircraft also has a Combined Maritime Patrol Team (CMPT) on board, comprising a military officer from each of the participating states. As a team, the CMPT establishes a comprehensive surface picture over the patrol area and broadcasts any suspicious contacts on designated radio frequencies to ground-based agencies – called the Monitoring and Action Agencies (MAAs) – established in each of the participating countries. Depending on whose territorial waters the incident takes place in, the respective MAAs will have to activate the patrol assets within their existing national decision-making structures to undertake the required follow-on actions. So far, the EiS is still in its first phase with the four countries as the principal operators of the MPA flights. Under Phase II, extra-regional countries will be invited to participate in the MPA surveillance flights as well. The Information Sharing Centre Another multilateral measure is the proposed setting up of the Information Sharing Centre as part of ReCAAP (the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia). ReCAAP is an organization comprising the ASEAN states, the Northeast Asian trio of China, Japan and South Korea, and the South Asian trio of Bangladesh, India and Sri Lanka. At a Tokyo meeting on 11 November 2004, the ReCAAP nations agreed to the setting up of an Information Sharing Centre in Singapore.32 The Information Sharing Centre will have a full-time multinational staff to maintain a database for piracy related information and facilitate communication between national agencies prosecuting piracy cases. So far, the 14 countries of

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Bangladesh, Brunei, Cambodia, China, India, Japan, Laos, Myanmar, the Philippines, Singapore, South Korea, Sri Lanka, Thailand and Vietnam have signed the agreement. Eight countries have ratified the agreement with Brunei, India and Sri Lanka awaiting ratification. Although both Malaysia and Indonesia have expressed support, they have not signed up to the agreement as yet. The information sharing centre became operational on 29 November 2006. In terms of governance and operations, the Information Sharing Centre is composed of the governing council and secretariat. The governing council will comprise one representative from each of the participating nations and will make policies concerning all matters of the centre. The secretariat on the other hand is headed by an executive director chosen by the governing council, who is responsible for the administrative, operational and financial matters of the centre. The setting up of the Information Sharing Centre is important, as it will bring critical analysis to bear on the issue of piracy with data gathered from the governmental agencies themselves, which will augment the data that is received from the IMB.

Conclusion The Asia-Pacific century looks set to be established with China, India and Japan leading the pack. Fuelling the Asia-Pacific engine will be the continued economic growth of China as well as those of India, Japan and the United States. As a byproduct and because of regional economic growth, trade flows into and within the Asia-Pacific and the demand for energy in the region will increase, both of which mean an increasing reliance on the sea as a mode of transport. This surge in the use of the sea as a mode of transport means that the security and the safeguarding of the sea lanes will become more crucial than ever. Hence, besides national measures, there is a need to move towards a more cooperative regime between both the littoral states as well as other stakeholders to enhance the security of the sea lanes as the threats are transnational in nature. An act of armed robbery that occurred at the end of February 2005 demonstrated the transnational character of the threat to shipping in the sea lanes. The incident occurred in Malaysian waters and involved a Japanese tug, where the Japanese crew were taken as hostages. Perpetrators from Indonesia were suspected to be responsible for the incident. The hostages were finally released in the vicinity of Southern Thailand after the Japanese owners paid the ransom. Having said that, the perception that the Malacca and Singapore Straits is a dangerous place has largely been attributed to a few high profile cases, such as the incident involving the Japanese tug, which has blown the security issue out of all proportion compared to the actual situation on the ground. For instance, the total number of piracy attacks that happened in the Malacca Strait in 2004 was 45 and accounted for only 0.07 per cent of the total number of ships transiting the strait that year. As this figure also takes into consideration those attacks that occur in port, the number of attacks to ships on transit in the main sea lane is even lower at about one-third of the figure above. The proportions of ships that have been

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attacked in the strait have ranged from 0.06 to 0.19 per cent for the period 2000 to 2004. Hence, despite the concerns over the security of shipping in the region, it is still very safe to sail in this part of the world. The recognition by the littoral states of international concerns and the measures that have been taken so far at the national, bilateral and multilateral levels will make the sea lanes even safer for international shipping well into the future.

Notes 1 The 2002 GDPs of the United States, China, Japan, and India are US$11,145 billion, US$1,299 billion, US$3,986 billion and US$501 billion respectively in nominal terms. See ‘Country Report: United States of America’, Economist Intelligence Unit, November 2003, p. 5; ‘Country Forecast: China’, Economist Intelligence Unit, November 2003, p. 11; ‘Country Forecast: Japan’, Economist Intelligence Unit, November 2003, p. 12; and ‘Country Forecast: India’, Economist Intelligence Unit, November 2003, p. 12. 2 National Intelligence Council, Global Trends 2015: A Dialogue About the Future with Nongovernment Experts, Washington D.C.: National Intelligence Council Publication, December 2000, pp. 34–8. 3 The forecasted 2050 GDPs of China, United States, India, and Japan, are US$45 billion, US$35 billion, US$27 billion and US$7 billion respectively in 2003 dollars. See D. Wilson and R. Purushothaman, ‘Dreaming with BRICs: The Path to 2050’, Goldman Sachs Global Economics Paper No. 99, 1 October 2003, p. 4. 4 J. J. Brandon, ‘Piracy on high seas is big business’, International Herald Tribune, 28 December 2000. 5 S. Kawamura, ‘Shipping and regional trade: regional security interests’, in S. Bateman and S. Bates (eds) Shipping and Regional Security, Canberra: Strategic and Defence Studies Centre, The Australian National University, 1998, p. 15. 6 Captain A. Othman, Deputy Director General, Peninsula Malaysia Marine Department, ‘Sailing the straits – safety, security, convenience’, Paper presented at World Maritime Forum 2004, Kuala Lumpur, 2–3 August 2004. 7 Japan Maritime Research Institute, ‘Study on Passage through the Straits of Malacca and Singapore, 2001’, JMRI Study, 8–11 March 2002. 8 Ibid., pp. 19–21. 9 Ibid. 10 Ibid, pp. 16–18. 11 Ibid. 12 J. R. C. Boyes and J. Degerlund, ‘Rising to the top’, Containerisation International, March 2005, p. 77. 13 ICC International Maritime Bureau, ‘Piracy and Armed Robbery against Ships Annual Report: 1 January–31 December 2004’, 4–11 January 2005. 14 A. J. Young and M.J. Valencia, ‘Conflation of piracy and terrorism in Southeast Asia: rectitude and utility’, Contemporary Southeast Asia vol. 25, no. 2, August 2003, 270–4. 15 Flynn has identified the world’s shipping mega ports as Long Beach, Los Angeles, Hong Kong, Singapore, Hamburg, Antwerp, and Rotterdam. See S. E. Flynn, ‘America the vulnerable’, Foreign Affairs, January/February 2002, 60–74. 16 M. Richardson, A Time Bomb for Global Trade: Maritime Related Terrorism in an Age of Weapons of Mass Destruction, Singapore: Institute of Southeast Asian Studies, 2004, pp. 112–4. 17 D. Y. Coulter, ‘Globalization of maritime commerce: the rise of hub ports’, in S. J. Tangredi (ed.) Globalization and Maritime Power, Washington DC: National Defense University Press, 2002, p. 139.

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19 20 21 22 23 24 25 26 27 28 29

30 31 32

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Admiral B. K. Sondakh, ‘National sovereignty and security in the Strait of Malacca’, Paper presented at conference on The Straits of Malacca: Building a Comprehensive Security Environment, Maritime Institute of Malaysia, Kuala Lumpur, 11–13 October 2004, pp. 8–10. R. Magindaan, ‘Maritime terrorism threat: an Indonesian perspective’, Paper presented at Observer Research Foundation Workshop on Maritime Counter Terrorism, 29–30 November 2004, p. 3. Admiral Dato’ Sri Mohd Anwar bin HJ Mohd Nor, Chief of Navy, Royal Malaysian Navy, ‘Malaysia’s Approach’, Presentation at ARF Regional Cooperation in Maritime Security Conference, 2–4 March 2005. ‘Malaysia to deploy armed police on tugs and barges’, Lloyd’s List, 4 April 2005. L. Lau, ‘Malaysia’s new guardians of the sea’, The Sunday Times @ The Straits Times Interactive, 15 May 2005. R. Scott, ‘IMDEX: Singapore stresses counters to maritime terrorism’, Jane’s Defence Weekly, 1 November 2003. C. L. Goh, ‘Armed navy escorts for suspect ships’, The Straits Times Interactive, 28 February 2005. R. Go, ‘Singapore Strait patrols keep pirates at bay’, The Straits Times Interactive, 16 May 2002. ‘Radar to monitor S’pore Strait: Indonesia, S’pore co-effort to boost waterways security, prevent pirate attacks’, Today, 27 May 2005. Available online at (accessed 27 May 2005). Sondakh, ‘National sovereignty and security in the Strait of Malacca’, p. 11. D. Berlin, ‘Navy reflects India’s strategic ambitions’, Asia Times Online, 6 November 2004. Available online at: (accessed 17 May 2005). ‘Malaysia and Thailand to boost maritime border crime watch’, Agence FrancePresse, 10 September 2003. Available online at: (accessed 17 May 2005). ‘TNI starts anti-piracy exercise with US military’, Gatra, 2 May 2005. Available online at: (accessed 9 May 2005). ‘China and Indonesia seal strategic pact’, International Herald Tribune, 26 April 2005. Available online at: (accessed 9 May 2005). ‘Asian nations band to fight piracy’, The Straits Times Interactive, 13 November 2004.

4

The regional dimension of territorial and maritime disputes in Southeast Asia Actors, disagreements and dynamics W. Lawrence S. Prabhakar

Territorial disputes and maritime disputes – issues Southeast Asia is characterized by a salient maritime and archipelagic geographical profile of historical significance. The waterways of Southeast Asia have been historically prominent for various reasons of mercantile trade, cultural transmission, naval expeditions and challenges such as piracy. The states of Southeast Asia – Cambodia, Indonesia, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam – have been characterized as archipelagic states as the seas have interwoven with the land territorial entities. Southeast Asia has its share of border and boundary conflicts and disputes. These are characteristically low in intensity conflicts and have always remained in the spectrum of limited and localized disputes. Southeast Asian conflicts have been largely in the political–diplomatic realm and hence they are more disputes than escalating conflicts. The exception to this was the Vietnamese invasion of Cambodia in 1978 that involved substantial military force. This was rebutted by the Chinese invasion of Vietnam in 1979, which was a limited war fought for, among other reasons, territorial settlement. Colonialism has been a dominant force in the region for nearly 300 years. With the exception of Thailand, the other states of Southeast Asia were all colonized – Malaysia, Myanmar and Singapore under British colonial domination, Cambodia and Vietnam under French Colonial rule, Indonesia under Dutch colonial control, and the Philippines under Spanish colonialism and later American domain. The universal colonial rule experience has always shown that the issue of territorial disputes in terms of border and boundary demarcations are consequential due to the arbitrary colonial demarcation. Colonial rule in Southeast Asia had its territorial disputes and conflicts but none led to violent conflict with the excessive use of military force. The end of colonial rule was hastened by the emerging global bipolar order and the resurgence of Third World nationalism. Colonial rule ended in the late 1960s with the exit of the British, Dutch and French colonial regimes. Colonialism has had a pertinent impact on the region, with one example being the dispute over Sabah that has triggered tensions between Malaysia and the Philippines, as well as between Indonesia and Malaysia. It was consequential of

Territorial and maritime disputes in Southeast Asia

35

the British decision to grant political independence to Brunei, British North Borneo and Singapore that had resulted in the territorial expansion of the Malay Federation in 1963. The second stage in Southeast Asia’s regional territorial disputes dimension was ushered in with the emergence of the bipolar global order. The competitive bipolar rivalries created the ideological overlay in the region as the forces of global liberal–democratic capitalism of the United States-led West contended with the global communism of Soviet and Chinese communism. The post Second World War territorial demarcations in Korea (38th parallel latitude) and Vietnam (17th parallel latitude) determined the contours and brink lines of the bipolar struggle in the region. The Cold War years saw the erection of competitive regional military alliances, the forward presence of forces and an escalating war in the region. The regional wars of the Cold War in Korea and Vietnam, however, had its cementing effects on Southeast Asian unity, initially under the Southeast Asian Treaty Organization (SEATO) and then under the economic manifestation of regional unity – the Association of Southeast Asian Nations (ASEAN). The Cold War era disputes signified the quest for ideological dominance and secondary importance to issues of territorial salience. It signified a subdued priority to interstate territorial and maritime disputes, owing to the prevalence of a dominant communist threat. Although Indonesia, Malaysia, Singapore and Thailand had their prevalent disputes, the imminence of the Soviet–Chinese communist threat led to their cooperative efforts in economic development behind the US military umbrella in the region. The Cold War rivalries between the Soviet Union and the US in the 1960s and the 1970s had spurned several regional conflicts. These regional disputes intensified into border skirmishes and were localized in territorial disputes between Cambodia and Vietnam, Thailand and Vietnam, and Laos and Thailand. The US involvement in Vietnam was the primary context of the escalation of these disputes into fully fledged conflicts. However as long as US presence was in Vietnam, the Chinese and Vietnamese cooperated in burying their border disputes to fight against American hegemony. The third stage in the regional territorial disputes evolution was the post-US exit from Vietnam and the consolidation of ASEAN as a viable regional economic entity that began to address the issues of territorial disputes and conflicts. ASEAN approached the various disputes through conflict management, with an emphasis on the processes of conflict avoidance, prevention and eventual conflict resolution.1 Maritime disputes in the region have been persistent and have always emerged as regional conflicts in the political diplomatic realm.

Overview of territorial and maritime disputes in Southeast Asia The territorial and maritime disputes in the region are as follows: a) Vietnam–Cambodia border and maritime disputes; b) Vietnam–China maritime dispute (South China Sea); c) Vietnam–Philippines maritime dispute (Spratly

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Islands); d) Thailand–Cambodia border and maritime disputes; e) Thailand–Myanmar border dispute; f) Thailand–Laos border dispute; g) Thailand–Malaysia border dispute; h) Indonesia–Malaysia border and maritime disputes (islands of Ligitan and Sipadan); i) Malaysia–China maritime dispute (Spratly Islands); j) Philippines–Malaysia border and maritime disputes (Sabah); k) Philippines–China maritime dispute (Spratly Islands); l) Singapore–Malaysia sovereignty contention and maritime ownership of Pedra Branca/Pulau Batu Putih.2 The causal factors for these disputes and their continued momentum can be located in the following issues. Sovereignty concerns Sovereignty and the apprehension of sovereignty violations by contending states both regional and extra-regional is a dominant factor in the region. Sovereignty concerns are derivative of the historical and colonial factors that have shaped national identities and resistance to external domination. Territorial and maritime disputes and contentions over unresolved border and boundary issues have been vital aspects of the assertion of national sovereignty. Assertion over islands and maritime boundaries have gained importance, given new territorial demarcations in the post-colonial period and the subsequent changes with the Third United Nations Convention on the Law of the Sea (UNCLOS III). Southeast Asia’s colonial past, memories of the Japanese invasion and the contemporary context of UNCLOS III provide the scope of contestation for states to claim rights and assert legal jurisdiction. Flying the flag over islands and challenging the movement of foreign vessels through their waters are viewed with sensitivity and the apprehension of a threat.3 Regional responses to territorial disputes have been in the form of the modernization of naval and air forces, viewed as viable instruments to secure the islands and protect the maritime areas.4 Indonesia’s objection to foreign naval vessels transiting its waters and Malaysia’s objections to the US Regional Maritime Security Initiative could be explained in the context of sovereignty concerns. National identity National identity is yet another factor that provides for the basis of territorial integrity and sovereignty. National identity provides the basis for the material aspects of the territory and reinforces the identity of the people living in the territory.5 Identity factors are historically driven. Indonesia’s national identity considers the idea of Wawasan Nusantara or the ‘archipelagic outlook’ that defines all Indonesian territory of islands and seas in between as one indivisible entity.6 Identity factors reinforce sovereignty concerns and constitute powerful constituencies in the domestic realm of states. The South China Sea is an important national identity issue for China. The ‘recovery’ of the area for the Chinese leaders provides a means to erase a century

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of national humiliation of colonialism and ‘unjust treaties’ that China was subjected to.7 China views the issue as a part of its domestic issue. The Law of the People’s Republic of China on the Territorial Waters and Contiguous Areas was hence passed by the National People’s Assembly as a means to recover the area to Chinese suzerainty. Under the law, China reiterated her claims in the South China Sea and stipulated the right to use force to protect the Spratly Islands and their surrounding waters. The law questioned the peaceful management of the territorial dispute and was regarded by ASEAN as a political provocation. The People’s Liberation Army (PLA) tends to view the South China Sea as a domestic issue – a derivative of China’s national identity.8 Resources management Resources and territorial disputes are a vital factor that has contributed to the intensity of territorial and maritime disputes in the region. Southeast Asian economies have been resilient and have managed to sustain growth amidst the Asian financial crisis. Energy resources and mineral resources have been abundant in the region. Brunei, Cambodia, Indonesia, Malaysia and Thailand are known for their abundance in resources. Economic growth and development of the region have led to the sharing of these resources in an amicable way, thanks to the institutionalized cooperation under ASEAN. However, resources have become an issue of contention at the low intensity level manifested as disputes and disagreements. The South China Sea contention has been overlapping over the issue of the stakes of the Spratly and Paracel Islands among the Southeast Asian states vis-à-vis China. The South China Sea is rich in sea-bed minerals, oil and natural gas. Besides, it is also one of the richest fishing grounds in the region providing for nutrition to the region and a rich export potential of the region’s seafood. The convergence of the critical sea lanes of communication (SLOCs) that run through this region funnelling into the Strait of Malacca from the Middle East and Indian Ocean into Northeast Asia and the Far East has given this resource rich region its stakes of contention. Resources and energy flows are an issue in terms of the sea lanes that funnel into the region. China and Japan are critically dependent on the huge trade of imports of energy resources, food and mineral resources from the Indian Ocean region and the two-way trade that passes through the region. Hence the freedom of navigation through the Strait of Malacca, the Sunda Strait and the Lombok Strait has been regarded as vital for sea lifelines. The security of sea lanes is vital in the context of imported resources and the exploitation of resources in the region.

Arms build-up dynamics in Southeast Asia: trends in naval arms dynamics The dynamics of arms build up in Southeast Asia has been an issue of debate and analysis. Given the relatively less acrimonious bilateral and multilateral relations in the region, it has been a subject of interest and debate as to why the Southeast

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Asian nations went for an intense arms build-up, particularly the naval arms, in the 1980s and the 1990s. The preference for a naval arms build-up obviously suggests that the nations in the region have strong maritime interests. The rationale has been to build conventional naval forces that would reinforce deterrence, while pursuing political diplomatic means to resolve the disputes. The arms build-up in the 1980s and the 1990s was the consequence of the military modernization of the regional armed forces. There are several explanations given to this issue. The primary reason has been that the military modernization of the regional armed forces was a response to the obsolescence of the colonial military hardware. While there is a dimension of military modernization emerging from the issue of obsolescence, there are other reasons for the arms build-up by the countries in the region. Malaysia, Singapore and Thailand have been competing with one another in acquiring, and equipping themselves with, state-of-the-art fighter attack aircraft and naval vessels including conventional diesel-electric submarines. These tend to indicate that the regional powers have been conscious in matters of defence preparedness even in the absence of hostile disputes and conflicts. An arms race emerges in the following contexts: i) there must be two or more parties conscious of their antagonism; ii) the rivals or antagonists must structure their armed forces to the probable effectiveness of the armed forces that are in combat with, or as a deterrent to, other arms race participants; iii) the arms race should be in quantity and quality; and iv) there must be rapid increases in quantity and constant improvements in quality.9 The arms build-up in Southeast Asia has featured the trends of arms modernization emerging from technological obsolescence. It has also been attributed to the quest for status and building national power to secure and protect vital national interests, deterrence against the possible escalation of prevalent disputes and a response to the competitive process of interactive arms procurement. The competitive interactive process of arms acquisition has been predominant in Southeast Asia for reasons of prestige and the maintenance of equality among relatively friendly countries. However, the continuance of the interactive and competitive acquisition of arms in the region has its consequences. The implications of this trend would be adversarial, should the nature of the disputes and territorial claims escalate from the low level of intensity in the political diplomatic realm to bilateral or multilateral conflicts. The possibility of the escalation of the territorial disputes and the involvement of the military could happen if: a) the effectiveness of the conflict management and conflict avoidance mechanisms fail; b) the demands of national identity stakes overrule bilateral and multilateral regional security initiatives and confidence building mechanisms; and c) the templates of the arms build-up goes on a higher curve of technological sophistication and the competitive arms build-up quickly escalates into a military crisis. The trends of arms modernization and acquisition in the 1980s and the 1990s suffered a setback with the Asian financial crisis in 1997 that propelled a downward

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slide of economic growth and structural crisis. The Asian financial crisis was a dampener in the arms market of the region as it reduced defence expenditures and gradually slowed the tempo of arms procurements in the region. The trend of the arms build-up in the region has been primarily in arms acquisition and modernization of the naval and air forces. The impact of defence transformation and the Revolution in Military Affairs has induced yet another dimension in force multipliers and net centric warfare capabilities of countries such as Malaysia, Singapore and Thailand with comparable force modernizations. The naval and air forces have been widely regarded as primary and effective forces for deterrence and power projection. Given the defence transformation efforts underway in East Asia,10 the accents of transformation have been focused on rapid logistics, stealth platforms, precision strikes, aerial early warning and joint warfare with the naval forces providing the platforms for mobility and strike and the air forces for reconnaissance and strike missions. A second reason for the trends of modernization in the naval and air forces has been the presence of extra-regional naval forces in the region and their forward presence in the Indian Ocean region, the South China Sea and the East Pacific. The forward presence of the American, Australian, Chinese, Indian and Japanese navies, as well as the Western navies of France and the United Kingdom, has its impact on naval forces modernization in the region. Naval forces modernization is viewed as capabilities building and provides for increased interoperability between the navies of the region and the extra-regional naval forces. The Indo-Pacific Oceans provide the sea-space for Southeast Asia, Northeast Asia and the Far East. It brings the convergence of the great power navies in the region and their passage through Southeast Asian waters funnelling in and out of the Indian and Pacific Oceans. The third reason for the naval and air forces modernization in Southeast Asia has been the impact of China’s military modernization and its ripple effect on Southeast Asia. The growing fleet and capabilities build up of the PLA Navy in terms of long-range endurance surface combatants and conventional and nuclear submarines is a factor that has to be reckoned with. The PLA Navy and the PLANaval Aviation have been expanding in terms of new surface combatants, maritime patrol craft, naval aviation rotary and fixed aircraft deployed in the South Fleet inasmuch as the deployments vis-à-vis Taiwan have been there.11 Although the Southeast Asian naval and air forces are miniscule compared to the growing platform and performance capabilities of China’s armed forces, the arms build-up in Southeast Asia is seen as a deterrent value against China. The fourth reason for the naval and air forces modernization in Southeast Asia is attributed to the ‘global war on terror’ and the synchronizing of the Southeast Asian armed forces to the asymmetric and low intensity conflicts. The role of special forces in conjunction with naval and air elements is seen as an optimal means in the combat against terrorism and insurgencies in the region. This is quite evident in Indonesia and the Philippines. Their respective armed forces have relied on naval and air elements in enhancing tactical mobility and effectiveness in the combat against terrorism.12

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The fifth reason for the continuing naval and air forces modernization is evident in the US cooperation and arms sales to the countries of the region. This is to strengthen US–Southeast Asian cooperation in the global war on terror, with an emphasis on interoperability and the defence transformation process. The US had declared the Philippines and Thailand as non-NATO allies in October 2003 with a view to facilitate the transfer and sales of military hardware.13 The sixth reason is the role and new relevance of regional alliances and bilateral engagements of Southeast Asian countries with the US and the Five Powers Defence Agreement (FPDA). The FPDA has been reinvented for new grounds of cooperation of the naval and air forces of Australia, Malaysia, New Zealand, Singapore, and the United Kingdom converging their security forces and resources in the global war on terror.14

Naval battle order trends in Southeast Asia Southeast Asian states’ military equipment procurement and the equipping of the respective armed forces have continued apace. This has been particularly apparent in the region’s naval and air arms. Singapore leads the military modernization process with the acquisition of sophisticated weaponry. Singapore seeks to replace its existing fighter attack aircraft with its ‘Next Fighter Replacement’ drawing either the F-15T, the Dassault Rafale or the Eurofighter Typhoon.15 Singapore’s investments in naval arms modernization have been with the six highly sophisticated missile frigates based on the French Lafayette-class. The Lafayette-class will significantly enhance Singapore’s capacity for securing and protecting the vital SLOCs on which Singapore’s economic survival depend. Besides this, it has other current procurement programmes of the Seahawk multi-role helicopters and the two ex-Swedish Västergötland-class submarines to replace Singapore’s existing submarine squadron. Singapore’s navy is also acutely interested in exploiting surface, subsurface and aerial unmanned vehicles.16 Malaysia has a naval order of battle that features four frigates and two fast frigates with guided missiles armed with Exocet anti-ship missiles. It also has an assortment of 41 patrol craft and coastal combatants that include eight missile corvettes. In 2004, Malaysia procured 10 Mi-171Sh armed transport helicopters to begin replacing its air force’s S-61s. It has also acquired 11 A-109M reconnaissance and utility helicopters to replace the Army Aviation Wing’s SA-316 Alouette IIIs. The Royal Malaysian Navy took delivery of the first of six Super Lynx helicopters, and in March 2004 took delivery of six AS555SN Fennec helicopters. The Royal Malaysian Air Force has orders for eight F/A-18E/F combat aircraft and four AEW&C aircraft, while longer-term priorities include maritime patrol aircraft for the navy and avionics upgrades for the air force’s MiG-29s and F-5s.17 Malaysia has concluded an agreement with the European Aeronautic Defence and Space Company (EADS)) that will lead to its procurement of two TRM-L 3D surveillance and target acquisition radar systems to meet its air-defence artillery local warning radar requirement. The contract is valued at US$23.6 million, with

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delivery scheduled for early 2008. It includes an option for eight additional radars and a decision on whether to acquire these systems is expected in 2006. Malaysia has also moved to modernize two Royal Malaysian Navy Lerici-class mine countermeasure vessels at a cost of US$24.9 million. The contract was awarded to the locally based company Realmild and completion is due in May 2006.18 Malaysia’s procurement programmes have been pitched at the procurement of two Franco–Spanish Scorpene submarines with delivery in 2009 and two additional UK-built Lekiu-class frigates scaled down or stretched. It had an initial ambitious project to build 27 New Generation Patrol Vessels, but this has now been reduced to just six ships.19 Indonesia has a naval order of battle of two diesel-electric attack submarines, 16 frigates and 10 fast frigates armed with Harpoon and Exocet anti-ship missiles. Its varied patrol and coastal combatants number around 39, comprising missile corvettes, mine countermeasure vessels and torpedo boats, 26 amphibious craft of various classes and nine naval aviation Wasp rotary aircrafts. It has been procuring two Su-27K, two Su-30MK fighter attack aircraft, as well as two Mi-35 combat helicopters for the army. In April 2004, the Indonesian Air Force had further procured an additional eight Su-30 MK fighters. The Indonesian Navy had procured 11 Polish-built PZL M28.05 Skytruck utility aircraft for maritime patrol and reconnaissance.20 Indonesia has also expressed its intention to purchase 12 submarines from Russia before 2024. Indonesia has been engaged in closer defence cooperation with Moscow following Indonesia’s 2003 purchase of four Sukhoi warplanes and two MI-35 assault helicopters. In addition to its dealings with Russia and the US, Indonesia is considering purchasing weapons from other potential suppliers, which might include China, several EU countries, India and South Korea.21 It has recently ordered two Sigma-class corvettes from the Netherlands worth some US$1.9 billion.22 Indonesia is focused to build a limited naval force that calls for a ‘green water’ capability by 2020. War-fighting vessels, equipped with sensors and guided weapons, will be reduced from the present 36 ships to 14 fully operational units. Indonesia’s main naval procurement programme involves four Sigma-class corvettes, the first two of which were ordered in 2004. Other programmes involve procuring Chinese C-802 anti-ship missiles and, since the US Foreign Military financing was restored in November 2005, additional Harpoon missiles.23 The Philippines has a modest naval force of one frigate with limited anti-submarine warfare capability and about 58 patrol and coastal combatants. It has about 13 offshore combatants mostly outfitted with naval gunnery, 11 patrol coastal vessels, 34 inshore patrol vessels, seven amphibious vessels Landing Ship, Tank (LST), 30 Landing Craft Mechanized (LCM), three Landing Craft Utility (LCU) and six Landing Craft Vehicle, Personnel (LCVP). It has recently procured 20 refurbished UH-1H helicopters from the US, which will boost the air force’s tactical airlift capacity. Vietnam has a battle order of two diesel-electric submarines, six mainly frigates principal combatants, 42 patrol and coastal combatants, and 12 missile corvettes. Vietnam purchased four Su-30MK fighters in December 2003 for

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delivery during 2004 with options on another eight of the type. Vietnam’s air force took delivery of 10 refurbished L-39C advanced jet trainers that had previously seen service with the Czech air force. It has also ordered two PZL M28 Skytrucks for maritime patrol, with another six to eight in prospect.24 In summation, it is evident that Southeast Asian countries have been building their conventional naval and air forces as a response to the global war on terror, as well as addressing the cooperative dimensions of regional security. The ASEAN aspiration to build an ASEAN security community as a self-reliant means to resolve security disputes is in the making. It shows that ASEAN as a community is on its long way towards a diplomatic and political recourse to disputes’ settlement.

Territorial disputes and resource management It is a fact that most disputes in Southeast Asia revolve around sovereignty concerns emanating from the apprehensions of insecurity and unresolved borders and boundaries. There are also quite a number of disputes and disagreements that have been persistent as a result of resources. Southeast Asia features five such disputes that have contention over resources and involve territorial stakes. The first is the Pattani Trough and Gulf of Thailand dispute that involves Cambodia and Thailand in contention over offshore oil and natural gas. The second is the Gulf of Thailand dispute that involves the contention on sea boundaries, continental shelf and exclusive economic zones (EEZs) between Cambodia and Vietnam, Malaysia and Thailand, Thailand and Vietnam, Malaysia, Thailand and Vietnam, and Cambodia, Thailand and Vietnam over oil, natural gas and fishing resources. There is also the Malaysia–Indonesia dispute over Ligitan and Sipadan and the recent dispute over Ambalat in the Sulawesi (Celebes) Sea. The final two disputes comprise the multi-nation South China Sea dispute over the Spratly and Paracel Islands.25 In terms of the intensity of the disputes, all the above five may be characterized as having a low level of intensity and have remained more in the political and diplomatic level of acrimony and rancour, except in the case of the South China Sea dispute where the use of force levels have been varied. In the other crises, the role of the navies and the employment of air power have been tailored to augment the political and diplomatic rhetoric. The primary contention in all these disputes has been the complexity of maritime delimitation and resources sharing. The nature of crises in Southeast Asia has been marked by an aggressive ratchet of tensions and evocation of emotional identity issues tied to resources disputes. The domestic dimension to external disputes has always been quite evident. In the Indonesian case, the Indonesian military (TNI) had always wanted centre stage in the country’s politics and domestic affairs. In the Malaysian context, the domestic issue has been the expansion of the Malaysian territorial and economic interests through the aggressive deployment of its navy and air force. However, the nature of the resources disputes has not escalated into the realm of military conflict. This has been due to ASEAN’s viable multilateral

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diplomacy and the invocation of the Treaty of Amity and Cooperation (TAC) signed by all the members of ASEAN. The critical linkage between regional disputes and asymmetric threats such as maritime terrorism and energy SLOCs is an issue that would come under the context of disputes and resources management. The critical dependence of the Asia-Pacific on the Persian Gulf–West Asia oil supplies is well known. The seaborne supply of energy resources to Southeast Asia and the Far East has critical implications on the maritime security of the sea lanes that are known for their various asymmetric threats and vulnerabilities. Passing through the waters of Southeast Asia are the energy SLOCs of China, Japan and South Korea – the predominant importers and consumers of the Persian Gulf–West Asia energy supplies. The threat of maritime terrorist disruption remains high. The vulnerabilities of the seaborne trade of oil supplies from the West Asian region has motivated China to consider the options of a limited forward presence of their naval units in the Indian Ocean. Japan and South Korea have been toying with options of their expanded operations in the Indian Ocean as part of their coalition operational efforts in Iraq. China’s Indian Ocean policy has been one of expansion since 2000 with the quest to build access and bases in the region with maritime infrastructure facilities in Gwadar in Pakistan. China has justified that it needs the facilities to secure its oil and trade SLOCs in the region that spans from the Strait of Hormuz to the Strait of Malacca. In pursuit of its objective to secure its oil and trade SLOCs, China has financed and built the Gwadar port complex with an initial aid of US$250 million in Pakistan that would entail China’s PLA Navy warships and nuclear submarines’ access to the port.26 Similarly, the Chinese have been building a signals intelligence facility on the Great Coco island, in Myanmarese waters 40 nautical miles from the Andaman Islands, to monitor shipping in the Malacca Strait. At a cost of over US$2 billion, China is also modernizing Myanmar’s naval bases at Munaung, Hainggyi, Katan island, Zadaikyi island and Mergui for its surveillance and monitoring missions, and basing its naval units for a surge into the Bay of Bengal with access to the Indian Ocean region. The Chinese are also constructing a road and waterway link from the southern Yunnan province to the Yangon port in Myanmar to provide Beijing with access to the Indian Ocean through the Bay of Bengal for an alternate route to the Malacca and Singapore Straits.27 Japan has been concerned about the vulnerabilities of its energy and trade SLOCs in the region. It revised its National Defense Program Outline in 2004 and has been augmenting its capabilities for an out of area engagement in the Indian Ocean with respect to the operations in Afghanistan and Iraq.28 These engagements are perhaps the first steps of the JMSDF for extended operations outside Japan and possibly have given it the opportunities to craft access into the region. Japan has expressed interest in these exercises and has offered to conduct visits by Japanese Coast Guard units. It would involve the training of regional coast guard forces in counter-terrorism operations with the Japanese special operations forces in naval–air

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coordination exercises. Japan has also contributed about 400 million yen to a revolving fund called the Malacca Strait Council to tackle and manage disasters in the region that could emerge from oil spills and environmental damages resulting from disruptive attacks.29 Given the vulnerabilities of the extended sea lanes of oil traffic, China, Japan and South Korea are keen to exploit the Australian and Indonesian natural gas reserves and venture to exploit the offshore natural gas reserves in the archipelagic waters. This creates an opportunity to cooperate and diminishes the chance of a possible resources dispute in territorial waters. The energy security concerns in the region could be stabilized with cooperative energy security initiatives that would engage the Chinese, Japanese and Korean energy markets with prospecting and exploiting the natural gas reserves in the region in an apparent move to reduce the dependency of oil from the Persian Gulf–West Asia region.30

Implications for maritime security The nature and salience of the regional territorial and maritime disputes provides for the analysis of the linkages between territorial disputes and resources management. This linkage has its impact on the nature of a maritime security order that would be prevalent in the region. Hence the primary questions of this chapter are as follows: 1 2

What is the importance of territorial disputes and resource management for maritime security? What is the importance of an arms race and deterrence for maritime security?

Importance of territorial disputes and resources management The significance of territorial disputes and resources management emerges from the state’s responses to crises. Often Southeast Asian states have viewed the issues of interstate disputes through the lens of sovereignty concerns or emotional identity issues, and in terms of the contention over resources. The demands of economic and population growth, the colonial past and the intense sensitivity against external intervention and aggression have resulted in ‘adolescent’ responses to disputes.31 The nature of state responses has been impulsive to concerns of territorial interests. The problem of uncoordinated state behaviour is quite pervasive in Indonesia, Myanmar, Thailand and Vietnam as the state does not have full control over the militaries. Given the loose control of the state over the militaries, there are serious implications on the region’s maritime security order. The intensification of any dispute has always resulted in a spiral of immediate responses and counter responses generated by the militaries of the belligerent states – particularly the naval and air forces of the belligerents. The navies of the belligerents have emerged as power brokers, given the maritime contiguous space

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and the mobility of the naval platforms. The advantage of mobile deployment and an instant response to any maritime dispute by the naval and air platforms has resulted in the strengthening of their role in the decision-making process of their national security apparatus. The advantage has been amply exploited by the naval and air force bureaucracies in the Ministries of Defence as leverage for higher defence expenditures. They would cite external threats as providing the means for increasing arms procurement or acquisitions, and it would cater for modernization and expansion. In the escalation of a regional conflict, there are possibilities of the naval engagements of the regional powers escalating into hostile operations. Such escalations would expose the SLOCs in the region to sporadic attacks. The role of the naval and air forces in the economic context of resources disputes is yet another dimension. Southeast Asian navies have been deployed for securing resources through the safeguard of EEZs and maritime boundaries. The role and deployment of naval forces by the Southeast Asian countries in disputes are for political and diplomatic mileage, and to garner domestic popular support. The scope of escalation, however, does not go beyond aggressive posturing and mutual hostile deployments. The probabilities of a full-fledged naval and air confrontation do not arise, as the orders of battle of the contending powers in the region are quite limited. It has been unique to ASEAN and Southeast Asia that political escalation and harsh diplomatic verbiage in territorial disputes have only provided for low level military escalation, before ASEAN mediation efforts step in with the instruments of the TAC. Importance of arms race and deterrence for maritime security Military modernization in Southeast Asia has continued since the 1980s and through the 1990s, and is commensurate with the region’s economic growth and development. The economic crisis in 1997 resulted in the slowdown of the regional economies and commensurate lower defence expenditures. The context of an arms race has been focused on naval and air power modernization, while land forces have received secondary importance. In the context of the current low intensity conflict operations against terrorism and insurgencies, the focus is equally on the role of land forces – with specific reference to special forces that act in coordination with the naval and air forces. Indonesia and the Philippines have reinforced their land forces in tandem with naval and air power. The trends of naval modernization may be perceived in two dimensions. One has been the imperative to develop the traditional roles of high intensity and expeditionary warfare, as well as to promote the evolution of coast guards and maritime enforcement agencies such as the Malaysian Maritime Enforcement Agency (MMEA) for the development of the Maritime Domain Awareness in the region with intensive offshore patrolling.

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The other has been the imperative for Southeast Asian navies to develop more constabulary roles and missions to secure against the increasing exploitation of offshore energy reserves and fishing grounds, as well as to protect marine resources – especially fishing-grounds – within the 200-nautical-mile EEZs. There is also the need to defend national integrity in the face of separatist threats and prevent terrorists from exploiting weak law enforcement at sea so as to create and maintain the good order at sea. Therefore, the requisite assets would be more in terms of coast guard-type forces deploying patrol vessels equipped with modern surveillance systems augmented by effective maritime air patrol capabilities. Malaysia has been able to create new organizational and operational dichotomies to the effect of segregating its traditional naval roles and its maritime enforcement roles with the newly created MMEA in 2005. The reorganization has been evident in focusing the Malaysian navy’s assets to concentrate on building blue water war-fighting capabilities, while MMEA is being established as a national coast guard with assets and personnel drawn from the customs and fisheries department, the police and the navy, with a three-star naval officer in charge. The MMEA has worked out seamless zones of operations for the marine police to still provide security within the 12-nautical-mile national waters boundary, with the MMEA responsible for maritime security out to the EEZ limit. Naval forces are usually the most stable of the three wings of the armed forces. Naval forces and platforms, surface and submerged, are effective strike forces and have the advantages of posturing and a longer endurance in deployment. In terms of operations, naval forces provide for self sustained surveillance and reconnaissance, and are capable of conducting autonomous operations in coordination with the air forces. In terms of establishing a stable deterrence order, naval forces provide for deterrence inasmuch as war-fighting capabilities. Southeast Asian navies feature the naval battle order of small and medium sized combatants that are invariably armed with anti-ship missiles of the US Harpoon class, French Exocet and the exSoviet anti-ship missiles. The growing offensive capabilities of the PLA Navy to the north, the evolving Japanese Maritime Self Defence Forces and the presence of the other extra-regional navies in the Indo-Pacific region have been the primary reasons of the growing naval power in the region. Defence modernization in Southeast Asia, with a specific focus on naval and air arms modernization, can be placed in the following contexts. The first premise is stated to be conventional deterrence. Conventional arms build up and a robust force posture seems to be the primary mission of the Southeast Asian navies. This is important for each state in the context of its regional competitors and as a status symbol to their allies and friends in the region. Although cordial political relations and regional security cooperation is optimal, the littoral states of Indonesia, Malaysia, Singapore and Thailand have invested considerably in conventional naval and air arms hardware that are used in the operational spectrum of traditional high-intensity conflicts.

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The deployment of these naval air assets in interstate disputes such as the recent Indonesia–Malaysia dispute over the oil prospecting offshore areas in North Borneo in 2005 is an example of the rapid escalation of disputes leading to the deployment of naval and air forces. The rationale for interoperability and the transformation dynamics of the extra-regional navies, namely China, India, Japan and the US, are other reasons that are driving the impetus to defence modernization and the preference for high performance naval and air hardware, even when the matrices of threats have been largely low intensity maritime threats and asymmetric challenges. The linkages between the regional maritime territorial disputes and the regional arms modernization and build-up have been quite evident. The threat matrices in Southeast Asia are predicated on the scope of conventional forces build-up and are tagged with the conventional sources of state-centric threats and the evolving and dominant asymmetric threats and challenges in the region.

Notes 1 C. R. Mitchell defines the four forms of conflict management in his work. See C. R. Mitchell, The Structure of International Conflict, New York: St Martin’s Press, 1981. 2 The detailed analysis of these disputes and their causal factors are vivid in J. Allcock et al., Border and Territorial Disputes, Third Edition, Harlow: Longman Group, 1992; J. Bercovitch and R. Jackson, International Conflict: A Chronological Encyclopaedia for Conflicts and their Management 1945–1995, Washington DC Congressional Quarterly, 1997; Jean-Marc F. Blanchard ‘Maritime issues in Asia: The Problem of Adolescence’, in Muthiah Alagappa (ed.) Asian Security Practice: Instrumental and normative Features. Stanford: Stanford University Press, 2003. 3 The movement of foreign vessels in the Exclusive Economic Zone (EEZ) are construed as an invasion and violation of territorial sovereignty. See K. Booth, Law, Force and Diplomacy at Sea, London: Allen & Unwin, 1985, pp. 40–2. 4 J. You, The Armed Forces of China, London: I. B. Taurus, 1999, p. 162. 5 T. Forsberg, ‘Explaining territorial disputes: from power politics to normative reasons’, Journal of Peace Research, vol. 33, no. 4, 1996, p. 438. 6 D. F. Anwar, ‘Indonesia: domestic priorities defines national security’ in M. Alagappa (ed.) Asian Security Practice: Material and Ideational Influences, Stanford: Stanford University Press, 1998, p. 486. 7 J. Garver, ‘China’s push through the South China Sea: The interaction of bureaucratic and national interests’, China Quarterly, vol. 132, December 1998, 1020. 8 D. Shambaugh, ‘China’s military views the world: ambivalent security’, International Security, vol. 24, no. 3, Winter 1999, 52–79. 9 C. Gray, ‘The arms race phenomenon’, World Politics, vol. 24, no. 1, 1972, 41. 10 R. A. Bitzinger, ‘Defense transformation and the Asia Pacific: implications for regional militaries’, Asia Pacific Security Studies, vol. 3 no. 7, October 2004. 11 L. Goldstein, ‘China emerges as a Maritime Power’, Jane’s Intelligence Review, 2004. Available online at: (accessed 27 November 2004). 12 The Military Balance 2004–2005: East Asia and Australasia, Part I, International Institute of Strategic Studies, pp. 164–5. 13 See the detailed analysis in E. Chanlett-Avery, ‘Thailand: background and U.S. relations’, Congressional Research Service Report, Washington DC United States Congress RL 32593, 2005; ‘Philippines – Major non-NATO ally status’, U.S. Department of State, 9 August 2004. Available online at: (accessed 30 May 2005).

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14

‘Five-nation regional defence pact expand to counter terrorist threat’, Agence France Presse, 7 June 2004. R. Scott, ‘Out of little horns grow’, Jane’s Navy International, 1 May 2005. Available online at: (accessed 16 May 2005). ‘South East Asia’s naval forces: aligning capabilities with threats’, IISS Strategic Comments, vol. 12, no. 1, February 2006. The Military Balance 2004–2005, p. 166. D. Mahadzir, ‘Malaysia to acquire radar systems’, Jane’s Defence Weekly, 21 December 2005. Available online at: (accessed 19 January 2006). ‘South East Asia’s naval forces aligning capabilities with threats’. Ibid. ‘Indonesia to buy 12 Russian submarines’, Mosnews, 23 January 2006. Available online at: (accessed 16 February 2006). ‘South East Asia’s naval forces aligning capabilities with threats’. Ibid. The Military Balance 2004–2005, p. 166. International Boundaries Research Unit (accessed 16 February 2006). J. Garvar, ‘The future of the Sino-Pakistani entente cordiale’, in M. R. Chambers (ed.) South Asia in 2020: Future Strategic Balances and Alliances, Carlisle: Strategic Studies Institute, US Army War College, November 2002. M. Malik, ‘Burma Slides under China’s Shadow’, Jane’s Intelligence Review, vol. 9, no. 7, 1 July 1997. Available online at: (accessed 17 October 2004). C. Hughes, ‘Japan’s re-emergence as a “normal” military power’, Adelphi Paper 368–369, London: International Institute of Strategic Studies, November 2004. T. Sakurai, ‘The Straits of Malacca challenges ahead: Japan’s perspective’, Paper presented at the International Conference on the Straits of Malacca, Kuala Lumpur, Malaysia, October 2004. T. Toichi, ‘Energy security in Asia and Japanese policy’, Asia-Pacific Review, vol. 10, no. 1, 2003, 44–51. The term adolescence in maritime disputes is used by Jean-Marc F. Blanchard. See his essay, ‘Maritime issues in Asia: the problem of adolescence’, in M. Alagappa (ed.) Asian Security Order: Instrumental and Normative Features, Stanford: Stanford University Press, 2003, p. 426.

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Maritime disputes in the South China Sea Strategic and diplomatic status quo Ralf Emmers

The maritime disputes in the South China Sea impact on a series of regional bilateral relations and continue to trouble ties between the People’s Republic of China (PRC) and the Association of Southeast Asian Nations (ASEAN).1 The Spratly Islands are claimed by Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam while the Paracels have been controlled by China since 1974 and are claimed by Taiwan and Vietnam. The maritime disputes are influenced by economic, strategic and political interests. The free navigation of commercial vessels in the South China Sea is essential for regional and international trade. Moreover, the area is rich in fishery resources and is expected to have oil and gas reserves.2 Brunei, Malaysia and Vietnam are already oil producers but in 1993 China became a net oil importer. The oil reserves of the South China Sea are uncertain and initial estimations have been adjusted lower. However, as exploration techniques have improved, oil reserves lying under the seabed in the deep water have become more viable. The South China Sea dispute also has an obvious strategic dimension. If it ever succeeds in realizing its territorial claims, the PRC would be able ‘to extend its jurisdiction some one thousand nautical miles from its mainland so as to command the virtual Mediterranean or maritime heart of Southeast Asia with far-reaching consequences for the strategic environment’.3 A Chinese naval presence at the heart of the subregion would be threatening not only to the Philippines and Vietnam but also to Brunei, Indonesia and Malaysia. In addition, control of the maritime communication routes would be strategic, as it would endanger the security interests of Japan, the US and other maritime powers that cross these waters. Finally, the territorial claims are of nationalistic importance where the claimant states are concerned. The claimants have been inflexible on the sovereignty issue. Retracting territorial claims or a willingness to make concessions on the question of sovereign jurisdiction would be costly domestically and perceived regionally as a sign of weakness. The paper suggests that the maritime disputes over the South China Sea are characterized by a strategic and diplomatic status quo.4 China does not have the necessary power projection to impose naval hegemony in the South China Sea. None of the ASEAN claimants can rely on sufficient naval power or an external military alliance to impose their claims. With the exception of the Philippines and

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Vietnam, who feel threatened by China’s actions, the problem of sovereignty in the South China Sea is not regarded as a direct danger to the national security of the individual ASEAN countries. A similar situation of status quo exists on the diplomatic front. China and the ASEAN countries have been negotiating for years to conclude a code of conduct for the South China Sea. Beijing has preferred a non-binding multilateral code of conduct limited to the Spratlys that would focus on dialogue and the preservation of regional stability rather than on the problem of sovereign jurisdiction. Disunity among the ASEAN countries, particularly between Malaysia on the one hand and the Philippines and Vietnam on the other, has also complicated the attainment of a code of conduct for the South China Sea. The chapter first reviews the nature of the maritime disputes in the South China Sea by discussing the territorial claims in the context of the Law of the Sea. Its second section describes the strategic environment in the South China Sea by both examining the use of force by some claimant states to secure their presence in the area as well as the changing strategic conditions of the dispute. The last section discusses the long diplomatic road towards reaching a code of conduct for the South China Sea, and asks whether the 2002 political declaration should be regarded as a step in the right direction or as a missed opportunity.

The nature of the South China Sea dispute The Law of the Sea The South China Sea dispute may be examined in the context of the Third United Nations Convention on the Law of the Sea (UNCLOS III). The latter was adopted on 30 April 1982 and came into force on 16 November 1994. It was ratified by, among others, Indonesia, the Philippines, Singapore, Thailand, Vietnam, and eventually by Brunei, China and Malaysia in 1996. All the claimant states have therefore ratified the convention, but some have misused it to extend their sovereign jurisdiction unilaterally and justify their claims in the South China Sea. The convention regulates internal waters, archipelagic waters, territorial seas, contiguous zones, exclusive economic zones (EEZs), continental shelves and high seas.5 It provides coastal states with the authority to extend their sovereign jurisdiction under a specific set of rules. It authorizes expansion of the territorial sea to 12 nautical miles and limits the contiguous zone to 24 nautical miles. It also states that the EEZ ‘shall not extend beyond the 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’.6 The sovereign rights of a coastal state over the EEZ are limited to the exploration and exploitation of its living and non-living resources. Continental shelves may not be extended beyond a limit of 350 nautical miles from territorial baselines. The sovereign rights of a coastal state over the continental shelf are reduced to the exploration and exploitation of its non-living resources. It is debatable, however, whether most of the Spratly Islands can generate maritime zones. UNCLOS defines an island as ‘a naturally-formed area of land, surrounded by water, which is above water at high tide’.7 An island is capable of

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naturally supporting life. Rocks in contrast cannot sustain human habitation or economic life and ‘have no exclusive economic zone or continental shelf’.8 Features that cannot sustain human life and artificial islands are only entitled respectively to a 12-nautical-mile territorial sea and a 500-metre safety zone. These terms of the convention seem to apply to most features in the Spratly archipelago. In short, due to their status the disputed features in the South China Sea may not be a legitimate basis for claiming maritime jurisdiction. Overlapping claims in the South China Sea The claims made by the parties involved in the South China Sea dispute can be separated into historical claims of discovery and occupation and claims that rest on the extension of sovereign jurisdiction under interpretations of the provisions of UNCLOS. The PRC views the South China Sea as an exclusive Chinese sea and claims nearly its entire territory. Its historical claims are based on the discovery and occupation of the territory.9 In 1947, the Nationalist government of Chiang Kai-Shek defined China’s claims by an area limited by nine interrupted marks that cover most of the South China Sea. Zhou En-Lai formalized the claims for the PRC in 1951. Relying on its claim to historical administration of the area, Beijing has not provided a legal explanation for, or given specific delimitations to, its territorial claims. After ratifying UNCLOS in May 1996, China applied the archipelagic principle when drawing maritime baselines around the Paracel Islands, although the Philippines and Indonesia are the only archipelagic states in the region. The use of the principle was a source of concern to Indonesia, the Philippines and Vietnam who protested, due to its possible future application to the Spratlys. Claiming a comparable area in the South China Sea, Taiwan relies on historical arguments similar to that of China’s. Since 1956, Taipei has occupied the island of Itu Aba, the largest feature in the Spratly group. Despite the Taiwan question, the PRC has tolerated Taipei’s territorial claims in the South China Sea. Until the reunification of Vietnam, Hanoi had recognized Chinese sovereignty over the Paracel and Spratly Islands. Since 1975, Vietnam has claimed both groups based on historical claims of discovery and occupation. In 1977 Vietnam also established a 200-nautical-mile EEZ. The original ASEAN members involved in the dispute present conflicting claims that differ from those discussed above. Claims are limited to specific parts of the Spratly archipelago and tend to rely on international law, including the extension of the continental shelf, rather than on historical arguments.10 Among the member states, the Philippines claims the largest area of the Spratlys – a zone referred to as Kalayaan. First officially proclaimed in 1971, a 1978 presidential decree declared Kalayaan as part of the national territory. The Philippines also established a 200-nautical-mile EEZ. Meanwhile, Malaysia extended its continental shelf in 1979 and included features of the Spratlys in its territory.11 Brunei then established in 1988 an exclusive economic zone of 200 nautical miles that extends to the south of the Spratly Islands and comprises Louisa Reef. Finally, Indonesia is not a party to the Spratly dispute. It was neutral in the South China

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Sea issue until 1993 and the suspected extension of Chinese claims to the waters above the Natuna gas fields, currently exploited by Indonesia.

Strategic environment in the South China Sea Use of force The PRC has on several occasions used force to consolidate its position in the South China Sea. In January 1974, China completed its control over the Paracel archipelago by acting militarily against South Vietnam before the expected fall of Saigon and the reunification of the country.12 This military action was part of the Sino–Soviet struggle but also reinforced China’s influence in the South China Sea. Due in part to its limited capacity to project power, the PRC remained absent from the Spratly Islands until the second half of the 1980s. Claiming the entire archipelago, China needed urgently to secure a military presence in the Spratlys and occupy some features. Most claimants have viewed the construction of permanent foundations on uninhabitable and occasionally submerged features as a manifestation of their sovereign jurisdiction. A naval confrontation with Vietnam on 14 March 1988 led to renewed Chinese seizure of territory.13 Yet the issue was primarily overlooked in most ASEAN capitals due to the ongoing Cambodian conflict (1978–91). Moreover, the PRC did not act aggressively against any of the ASEAN claimants during that period. After the resolution of the Cambodian Conflict with the signing of the Paris Accords in October 1991, the territorial dispute over the Spratlys gained in importance. China’s apparent willingness to show restraint vis-à-vis ASEAN claimants was questioned when in February 1992 Beijing passed the Law of the People’s Republic of China on the Territorial Waters and Contiguous Areas. It reiterated China’s claims in the South China Sea and stipulated the right to use force to protect islands, including the Spratlys, and their surrounding waters. The law questioned the peaceful management of the territorial dispute and was regarded by ASEAN as a political provocation. On 8 February 1995, the Philippines discovered the Chinese occupation of Mischief Reef, located in Kalayaan. The PRC had taken, for the first time, territory claimed by an ASEAN member. The Mischief Reef incident also indicated that the Philippines, since the 1992 US withdrawal from Subic Naval Base and Clark Air Base, had become the most vulnerable actor in the Spratly dispute. The American departure from its military bases in the Philippines had removed a source of deterrence against Chinese actions in Kalayaan. Then Philippine President Fidel Ramos strongly criticized China’s action. Manila responded to the discovery of the Chinese occupation by seeking multilateral support and taking retaliatory measures that included the destruction of Chinese territorial markers and the arrest of Chinese fishermen in March 1995. The Philippines also announced a defence modernization programme. The PRC and the Philippines eventually signed in August 1995 a bilateral statement that rejected the use of force and called for the peaceful resolution of their bilateral

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dispute in accordance with the principles of the 1982 Convention on the Law of the Sea.14 Since the Mischief Reef incident, China in its foreign policy has increasingly been acting as a status quo power respecting standard international norms, rather than as a revisionist power seeking to undermine the international order. Shambaugh explains that, both at a bilateral and multilateral level, ‘Beijing’s diplomacy has been remarkably adept and nuanced, earning praise around the region’.15 This has been reflected in its actions toward the South China Sea, as China has not seized disputed features in the Spratlys since the Mischief Reef incident. Even though it expanded its structures on the reef in November 1998, Beijing’s policy towards the South China Sea has been moderate in recent years in an attempt not to antagonize the ASEAN countries. China’s readiness to accommodate the Southeast Asian countries over the South China Sea can be explained by Beijing’s economic priorities as well as by its difficult relations with Japan and its concern over increased US military presence in the region, particularly since the terrorist attacks on 11 September 2001. Yet other claimant states have used military means to take control of reefs claimed by other states, and friction over the disputed territories has continued. Tensions have surged between Malaysia and the Philippines, Malaysia and Vietnam, and the Philippines and Vietnam. In March 1999, Malaysia’s seizure of Navigator Reef, claimed by the Philippines, strained relations with Manila and was criticised by Brunei, China and Vietnam. In August 2002, Vietnamese troops based on one islet fired warning shots at Philippine military planes. Additionally, some claimants have also used non-military means to protect their interests. In May 2004, Vietnam started rebuilding a runway on the disputed island of Truong Sa Lon (Big Spratly) with the purpose of sending small groups of Vietnamese tourists to the South China Sea.16 China strongly criticized the Vietnamese actions and described them to be in violation of the 2002 Declaration on the Conduct of Parties in the South China Sea (discussed below). In sum, all these initiatives and counterinitiatives have been part of an attempt by the claimant states to secure their presence in the Spratlys. Strategic conditions in the South China Sea China’s naval position in the Spratlys has continued to be weak due to its limited power projection. The PRC has not extensively increased its ability to sustain naval operations away from its mainland bases. Shambaugh writes that the People’s Liberation Army (PLA) ‘does not seem to have made much progress in enhancing its power projection capabilities, nor do these seem to be a priority’.17 China has no aircraft carrier battle group to project its power; it has few destroyers and its submarines usually remain within its territorial waters.18 Most features in the Spratly archipelago are also too small to offer bases for further naval activities. Hence, the PRC does not currently possess the necessary capabilities to control the Spratly group militarily. Furthermore, command over the maritime communication routes that cross the South China Sea can only result from a significant naval dominance

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and superiority in the region rather than the occupation of tiny features that may not offer a legitimate basis for claiming maritime jurisdiction.19 It is important therefore to dissociate the military control of reefs that can only generate limited maritime zones from the control of sea lanes of communication (SLOCs) and wider naval areas. The latter are obviously more significant strategically. The PRC does not yet possess the technology, military capabilities and power projection to impose such a naval hegemony in Southeast Asia.20 Yet military power should also be examined in relative terms and in light of regional standards. Here China possesses a significant and increasing naval advantage when compared to some vulnerable Southeast Asian claimant states. The build-up of its Southern fleet, even if slow and gradual, is a concern for the other claimants especially because its geographical area of operation would naturally be the South China Sea. This is particularly true in the context of the Philippines and Vietnam, which feel threatened by China’s actions in the Spratlys. Vietnam perceives its relation with the PRC over the South China Sea as a reflection of its traditional antagonism and patterns of power with Beijing. Vietnam does not marshal sufficient naval power to impose its will in the South China Sea nor does it have access to an external source of countervailing power to constrain China’s actions. Vietnam has not forged a formal or tacit alliance with the US despite a significant improvement in ties since the establishment of diplomatic relations on 11 July 1995. Regardless of whether a future de facto alliance is forged, the US has so far been unwilling to get involved in the territorial dispute. In the case of the Philippines, Mischief Reef demonstrated Manila’s weakness in the dispute. The Mischief Reef incident did not lead to a strong US diplomatic reaction, except for a statement on the freedom of sea lanes. Instead, Washington reminded Manila that its territorial claims were not covered by the Mutual Defence Treaty of 30 August 1951 that ties the Philippines to the US. The US unwillingness to get involved in the territorial dispute may result from a desire not to further complicate its relations with Beijing. Nonetheless, to strengthen its deterrence capabilities, the Philippines ratified a Visiting Forces Agreement with the US in May 1999 to resume joint military exercises. The Philippines and Vietnam cannot rely on ASEAN in a traditional security sense. The association is unable, on its own, to act as an effective source of countervailing power in the South China Sea. ASEAN is devoid of two elements essential for any formal or tacit alliance: joint military capabilities and the existence of a common threat perception. Though all the members are confronted with China’s rising power, they have differential relationships with the PRC that derive from various aspects that include contrasting historical experiences, ethnicity, economic relations as well as domestic and international conditions. Moreover, the ASEAN claimant states do not benefit from external military assistance to contain the PRC in the South China Sea. In short, the association ‘has no power to deploy because it is neither a defence community nor a party to a countervailing structure of alignments’.21 Instead, the Philippines and Vietnam have relied on ASEAN diplomacy and the negotiation of a code of conduct to protect their positions in the South China Sea.

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The long road toward a code of conduct for the South China Sea History of China–ASEAN negotiations The first attempt to establish a multilateral dialogue was the Workshops on Managing Potential Conflicts in the South China Sea. Launched in 1990, the workshops were an Indonesian sponsored project financed by Canada focusing on confidence building over maritime issues. By avoiding the question of sovereign jurisdiction and focusing instead on low level cooperation, the workshops attempted throughout the 1990s to encourage a multilateral dialogue and enhance a peaceful management of the conflict.22 The workshops were therefore characterized by a functionalist approach to conflict management. In January 1990, an initial workshop was organized in Bali that gathered the six ASEAN states to a preliminary meeting. Held in Bandung in July 1991, the second event brought together the members of the association, China, ‘Chinese Taipei’, Laos and Vietnam. In his opening statement, Indonesia’s Foreign Minister Ali Alatas declared that ‘our attention and efforts have been and should continue to be directed towards finding ways to transform potential sources of conflict into constructive forms of cooperation for mutual benefit.’23 Despite their utility, the workshops never succeeded in advancing towards preventive diplomacy. In July 1992, the ASEAN foreign ministers signed the ASEAN Declaration on the South China Sea in Manila, which was an outcome of the joint statement of the Bandung Workshop of July 1991.24 As ASEAN’s first common position on the South China Sea, the Manila Declaration did not deal with the problem of sovereign jurisdiction but was instead an attempt to promulgate an informal code of conduct based on self-restraint, the non-use of force and the peaceful resolution of disputes. It relied on the norms and principles initially introduced in the ASEAN Treaty of Amity and Cooperation (TAC) of 1976.25 The informal code of conduct for the South China Sea was based therefore on the notions of conflict management and avoidance rather than conflict resolution. Despite the overlapping claims, the member states shared an interest in promoting Southeast Asian stability and avoiding any confrontation with China. Nevertheless, the relevance of the 1992 Declaration was reduced by the lack of external support. While supported by Vietnam, China was not receptive to the declaration and did not formally adhere to its principles. Beijing repeated its preference for bilateral rather than multilateral discussions on the South China Sea. The US was unsupportive and maintained its position of neutrality in the territorial dispute. At the first ASEAN Regional Forum (ARF) meeting in July 1994, China’s Foreign Minister Qian Qichen repeated Beijing’s peaceful intentions and rejected the resort to force as a means to solve the dispute. Yet China refused to discuss the question of sovereign jurisdiction in a multilateral forum. By limiting itself to bilateral negotiations with the other claimants, China aimed to dominate the discussions. This complicated ASEAN’s attempt to develop a code of conduct for the South China Sea. Prior to the second ARF meeting in August 1995, however, China’s Foreign Minister Qian Qichen made some concessions to the ASEAN members. He declared that the PRC was prepared to hold multilateral discussions on the Spratly

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Islands, rather than limit its diplomacy to bilateral talks, and to accept the 1982 Convention on the Law of the Sea as a basis for negotiation.26 These concessions resulted from a need to accommodate the Southeast Asian countries in light of the Mischief Reef incident, as well as from a deterioration of Chinese relations with Japan and the US. Yet they did not alter China’s territorial objectives in the South China Sea, as Beijing was still unwilling to address the question of sovereign jurisdiction and repeated its territorial claims over nearly the entire area. At the informal ASEAN Summit of November 1999, the Philippines, supported by Vietnam, proposed a new version of a code of conduct. This was an attempt to peacefully manage the South China Sea question by preventing a deterioration of the situation. In particular, it aimed to avert the additional occupation by the claimant states of disputed and still uninhabited features. The initiative was more specific than the 1992 Manila Declaration. It tried to move beyond the simple assertion of standard principles and proposed joint development of the Spratly Islands. The Philippine proposal was rejected by both China and Malaysia. The latter was concerned that such a code would be too legalistic. Malaysia had until the early 1990s been critical of China’s actions in the Spratly Islands but its diplomatic stand on the South China Sea gradually changed over the subsequent years and came closer to the Chinese position. Malaysia refused to address the question of sovereignty. It favoured bilateral negotiations with China and preferred to avoid a constraining regional code of conduct or external mediation. The chairman’s press statement at the informal summit declared that the heads of state and government ‘noted the report of the Ministers that ASEAN now has a draft regional code of conduct, and further consultations will be made on the draft with a view of advancing the process on the adoption of the code’.27 Malaysia proposed a declaration for the Spratly Islands at the thirty-fifth ASEAN Ministerial Meeting (AMM) in Brunei in July 2002. The non-binding document to regulate conduct in the disputed territory was a watered down compromise, even failing to mention the Spratlys by name. It was also unclear whether the agreement would be referred to as a code of conduct or as a declaration. Most member states refused to support the Malaysian proposal, with the Philippines and Vietnam insisting for instance on the adoption of a binding document on the South China Sea. Unable to reach a consensus, the foreign ministers announced in their joint communiqué their decision to work closely with China towards a Declaration on the Conduct of Parties in the South China Sea.28 The ASEAN foreign ministers and China’s Vice Foreign Minister Wang Yi finally signed a Declaration on the Conduct of Parties in the South China Sea on the sidelines of the ASEAN summit in Phnom Penh in November 2002. The agreement was intended to prevent further tensions over the disputed territories and to reduce the risks of military conflict in the South China Sea. The parties stipulated their adherence to the principles of the UN Charter, UNCLOS, the TAC and the Five Principles of Peaceful Coexistence and reaffirmed their respect and commitment to ‘the freedom of navigation in and over flight above the South China Sea’.29 They agreed to resolve their territorial disputes by peaceful means, ‘without resorting to the threat or use of force, through friendly consultations and

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negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law’.30 The parties also pledged to practice self-restraint in activities that could spark disputes, such as inhabiting still uninhabited features, and to enhance their efforts to ‘build trust and confidence between and among them’.31 They agreed to exchange views among defence officials, to provide humane treatment to any person in danger or distress, and to give advance notice of military exercises on a voluntary basis. The political declaration was an interim accord, as the parties were expected to continue working on the adoption of a code of conduct. It stated: The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.32 The Philippines and Vietnam were disappointed as they had pushed for a binding document. Moreover, Vietnam had demanded that the declaration include a commitment not to build new structures, which was rejected by China. The political declaration also made no reference to its specific geographical scope, primarily because China opposed any mention of the Paracel Islands. Declaration on the Conduct of Parties: step in the right direction or failed opportunity? As an interim accord, the Declaration on the Conduct of Parties in the South China Sea is a step in the right direction. It shows a desire by the different parties involved to pursue their claims by peaceful means. It openly denounces the use of force in the South China Sea. In that sense, it contributes towards the easing of tensions between the claimant states. By putting off the question of boundaries, it also increases the possibility of reaching agreements on joint oil exploration and development schemes. Such an agreement was, for example, signed in March 2005 by the state-owned oil companies of China, the Philippines and Vietnam with regard to the conducting of oil pre-exploration surveys in the Spratlys. Philippine President Gloria Arroyo stated at the time that the agreement was a first implementation of the provisions of the 2002 Declaration.33 The Declaration on the Conduct of Parties is essentially part of ASEAN’s search ‘for explicit confirmation that China’s presence in the South China Sea will not jeopardize peaceful coexistence’.34 In return, China has been keen not to antagonize the ASEAN countries over the South China Sea and it has often repeated its desire to resolve the territorial disputes by peaceful means without the resort to force. Since the Mischief Reef incident, Beijing has introduced an element of moderation towards the South China Sea question and it has attempted not to pose challenges to the broader regional order. As the first multilateral agreement signed by China on the South China Sea, the 2002 Declaration should thus be seen as an indication of its willingness to adhere to

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the principles promoted by the ASEAN countries. In October 2003, China was also the first non-Southeast Asian state to adhere to the TAC. This has been part of China’s overall courtship of ASEAN in recent years, as well as further demonstrating its willingness to respect the association’s norms of interstate behaviour. Still, after years of negotiations, the 2002 declaration was a step short of the original goal of reaching a detailed and binding code of conduct for the South China Sea.35 Tonnesson points out that the ‘declaration does not establish a legally binding code of conduct: it is simply a political statement’.36 The declaration is unable to prevent territorial clashes or other possible sources of conflict such as the arrest of fishermen by foreign navies and the expansion of military structures on already-occupied reefs. Attempts to formulate a binding code of conduct for the South China Sea will continue to face major obstacles. In that respect, the 2002 Declaration may be regarded as an abdication on the part of ASEAN regarding its original objective of attaining a detailed and binding code of conduct. Though the political declaration is meant to be part of a work in progress, it is legitimate to question whether the ASEAN members and China will ever agree on a binding code of conduct for the South China Sea. The failure to develop a code of conduct among the claimant states results from several factors. The PRC has constantly repeated that its sovereignty over the South China Sea is indisputable. Beijing seems only prepared to support a non-binding multilateral code of conduct that would be limited to the Spratlys and focus on dialogue and the preservation of regional stability, rather than the problem of sovereign jurisdiction. Nevertheless, the absence of consensus and solidarity among the ASEAN states over the South China Sea needs to be kept in mind, particularly between Malaysia on the one hand and the Philippines and Vietnam on the other. The ASEAN claimants involved in the dispute are also unwilling to make concessions with regard to their territorial claims and have failed to address the problem of sovereign jurisdiction. Finally, cooperation on the South China Sea has been affected by persisting mistrust among the ASEAN claimants. All these sources of disunity have complicated the attainment of an ASEAN stand on a code of conduct.

Conclusion The maritime disputes in the South China Sea have been characterized by a strategic and diplomatic status quo. Diplomatic achievements to manage or even resolve the disputes have been rather limited. The 1992 Declaration on the South China Sea only applies to the ASEAN members. The 2002 Declaration on the Conduct of Parties in the South China Sea is based on a multilateral and normative dimension as well as on a convergence of views on the need to manage the dispute peacefully. While a step in the right direction, the declaration is still only an interim political agreement. It may also be regarded as an abdication on the part of ASEAN regarding its original objective of attaining a detailed and binding code of conduct. Despite the use of force by China and others to take control of some disputed features, the South China Sea has

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remained primarily a political rather than a military issue, thanks to China’s desire to accommodate the Southeast Asian countries and the limited naval capabilities available to the different claimants. In the short to medium term, an armed conflict seems unlikely although risks exist of miscalculations or accidents that could lead to limited confrontation. In the longer run, however, the maritime disputes could become a military threat and a primary security concern in Southeast Asia if China, or to a lesser extent the other parties involved, significantly increase their power projection capabilities. As oil prices have risen substantially over recent years, the situation in the South China Sea would also quickly change if proof was found of sufficient oil reserves for commercial use. Whether the situation would change for the better or worse depends of course on the political and regional circumstances at that given time, on the status of China–ASEAN relations, as well as on the demand for energy supplies. There are few reasons to be optimistic on the last issue. Despite its own production of 3.4 million barrels a day, China’s import needs have already grown to 40 per cent of its total oil consumption and this figure is expected to increase in order to sustain its economic growth and development.37 As no solution to the territorial disputes in the South China Sea seems to be in sight, it is relevant to ask whether the claimant states should put off the question of boundaries for now and seek instead to agree on joint oil exploration and development schemes in this potentially oil-rich area. The agreement signed on the conducting of oil pre-exploration surveys in the Spratlys by the state-owned oil companies of China, the Philippines and Vietnam in March 2005 shows that this process has already started. The signing of such bilateral agreements guarantees the Philippines and Vietnam to be at the very least included in the exploration process in areas where they have overlapping sovereignty claims with Beijing. By avoiding being excluded altogether by the stronger party, Hanoi and Manila can therefore hope to benefit from the existing living and non-living resources. Yet at the same time, the overwhelming asymmetry in power and the absence of an overall agreement on the sovereign rights of the coastal states can significantly weaken the negotiating position of the weaker parties as well as leave them in a fragile situation after changing economic conditions (for instance more oil reserves found for commercial usage than anticipated) or evolving strategic circumstances in the territorial dispute.38

Notes 1 ASEAN was established in 1967 and its original members were Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei joined in 1984 after gaining its full independence from the United Kingdom. Vietnam joined in 1995, Laos and Myanmar in 1997 and Cambodia in 1999. 2 See B. Catley and M. Keliat, Spratlys: The Dispute in the South China Sea, Aldershot: Ashgate, 1997, pp. 44–65. 3 M. Leifer, ‘Chinese economic reform: the impact on policy in the South China Sea’, in G. Segal and R. H. Yang (eds) Chinese Economic Reform: The Impact on Security, London: Routledge, 1996, p. 142.

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Ralf Emmers In 1999, the late Professor Michael Leifer went further in his analysis by portraying the South China Sea dispute as a ‘stalemate’. See M. Leifer, ‘Stalemate in the South China Sea’, Paper presented at the SUM Workshop on the ‘Conflict in The South China Sea’, Oslo, Norway, 24–6 April 1999. See R. M. M. Wallace, International Law, Second Edition, London: Sweet & Maxwell, 1992, pp. 128–65. Article 57, 1982 Convention. Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, New York: United Nations, 1983. Article 121, 1982 Convention. Article 121(3), 1982 Convention. See N. Lu, Flashpoint Spratlys, New York: Dolphin Books, 1995, pp. 5–35. A. Acharya, A New Regional Order in South-East Asia: ASEAN in the Post-Cold War Era, Adelphi Paper no. 279, London: International Institute for Strategic Studies, August 1993, pp. 33–4. See C. K. Lo, China’s Policy Towards Territorial Disputes, London: Routledge, 1989, pp. 153–4. See G. Segal, Defending China, Oxford: Oxford University Press, 1985, pp. 197–210. See P. K. Shee, ‘The March 1988 skirmish over the Spratly Islands and its implications for Sino-Vietnamese relations’, in R. D. Hill, N. Owen and E.V. Roberts (eds) Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial Claims in the South China Sea, Hong Kong: Centre Of Asian Studies, University of Hong Kong, 1991, pp. 177–91. Joint Statement on RP–PRC Consultations on the South China Sea and on Other Areas of Cooperation, 9–10 August 1995. D. Shambaugh, ‘China engages Asia: reshaping the regional order’, International Security, vol. 29, no. 3, Winter 2004/05, p. 64. ‘Vietnam rebuilds Spratly Airport’, BBC News, 14 May 2004. Shambaugh, ‘China engages Asia: reshaping the regional order’, p. 85. J. Power, ‘The so-called rise of China’, International Herald Tribune, 8 April 2005. M. Leifer, ‘The maritime regime and regional security in East Asia’, Pacific Review, vol. 4, no. 2, 1991, p. 130. See the International Institute for Strategic Studies, The Military Balance 2004–2005, Oxford: Oxford University Press, 2004, pp. 161–2, 170–3. M. Leifer, ‘ASEAN as a model of a security community?’, in H. Soesastro (ed.) ASEAN in a Changed Regional and International Political Economy, Jakarta: Centre For Strategic and International Studies, 1995, p. 141. See I. Townsend-Gault, ‘Confidence and cooperation in the South China Sea: the Indonesia–Canada initiative’, in J. Wanandi (ed.) Regional Security Arrangements: Indonesian and Canadian Views, Jakarta: Centre for Strategic and International Studies, 1996, pp. 69–80; and I. Townsend-Gault, ‘Preventive diplomacy and proactivity in the South China Sea’, Contemporary Southeast Asia, vol. 20, no. 2, August 1998, pp. 171–90. HE Mr A. Alatas, Minister for Foreign Affairs of Indonesia, Address Opening The Second Workshop on ‘Managing Potential Conflicts in the South China Sea’, Bandung, Indonesia, 15 July 1991. Joint Statement, Workshop on ‘Managing Potential Conflicts in the South China Sea’, Bandung, Indonesia, 15–18 July 1991. Adopted at the first ASEAN Summit held in Bali in 1976, the TAC constitutes a norm-based code of conduct that enunciates ASEAN’s core principles, including the respect for sovereignty and non-interference in the affairs of other states. S. W. Simon, ‘ASEAN Regional Forum’, in W. M. Carpenter and D. G. Wiencek (eds) Asian Security Handbook: An Assessment of Political-Security Issues in the AsiaPacific Region, New York: Me Sharpe, 1996, p. 47.

Maritime disputes in the South China Sea 27 28 29 30 31 32 33 34 35 36 37 38

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Chairman’s Press Statement, Third Informal Summit of the ASEAN Heads of State and Government, Manila, Philippines, 28 November 1999. Joint Communiqué of the 35th ASEAN Ministerial Meeting, Bandar Seri Begawan, Brunei, 29–30 July 2002. Declaration on the Conduct of Parties in the South China Sea, Phnom Penh, Cambodia, 4 November 2002. Ibid. Ibid. Ibid. L. Baguioro, ‘Three nations sign pact for joint Spratlys survey’, The Straits Times Interactive, 15 March 2005. L. Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’, Security Dialogue, vol. 34, no. 1, March 2003, 22. R. Emmers, ‘Keeping waters calm in the South China Sea’, The Straits Times, 21 November 2002, p. 23. S. Tonnesson, ‘Sino–Vietnamese rapprochement and the South China Sea irritant’, Security Dialogue, vol. 34, no. 1, 2003, 55–6. N. Chanda, ‘China naval expansion: strictly business, please’, The Straits Times, 12 April 2005. This point was raised by Dr S. Tonnesson at the Norwegian Institute of International Affairs–IDSS Workshop on ‘Maritime Security in Southeast Asia’, Oslo, Norway, 14–15 June 2005.

6

Piracy in the waters of Southeast Asia Catherine Zara Raymond

Piracy has been an almost constant feature of the maritime domain in Southeast Asia since the fifth century. According to one historian, these early piratical activities formed part of a complex social web which encompassed elements of political and economic competition, and social status.1 Today, acts of piracy continue to occur in the region and over the last ten years have been increasing in frequency. Although there are now signs of a decrease in the number of incidents, the attacks themselves have taken on worrying new characteristics and it is possible to observe a number of disturbing changes in attack trends. One of the most significant developments is the increase in the occurrences of kidnap-for-ransom incidents. In the past, this tactic had been the reserve of terrorist groups such as the Abu Sayyaf Group (ASG) which operates in and around the islands of the Philippines’ Sulu and Basilan provinces and in the Tawi-Tawi chain of islands that stretches south to the north eastern coast of Malaysia’s Sabah state.2 In the last few years ASG has been successfully boarding vessels, kidnapping members of the crew and demanding a ransom for their release. In an alarming development, it now seems that pirate groups have also adopted this tactic. According to the International Maritime Bureau (IMB), which collects and collates information on piracy attacks around the world, in 2004 alone there was an unprecedented number of kidnappings in which a total of 43 crew members were kidnapped by pirates in Southeast Asia, of which 36 were taken hostage in the Strait of Malacca, one of the world’s most important international waterways.3 What is more worrying is that the demands for ransom made by the pirates are in most cases met by the employers of those kidnapped in order to secure their release. This kind of response will undoubtedly encourage the pirates to continue carrying out this type of attack since pirates are aware that their tactics will most likely pay off. What is made clear by these bold attacks is that governmental efforts aimed at curbing the problem are failing. Issues of sovereignty, international law, responsibility and resources (or lack of them) are hampering regional efforts aimed at addressing the problem. As a result Southeast Asia, and in particular the waters around the Indonesian archipelago and the Strait of Malacca, will remain a high risk zone for pirate attacks. Real and comprehensive solutions to the problem must be developed at the regional level before the economic and human costs of piracy increase further.

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This chapter will analyse the threat of piracy in Southeast Asia. It will begin with an examination of the concept of security in the context of the maritime domain and in particular how this has affected the perception of the problem of piracy. This is followed by a discussion of the difficulties in defining the phenomenon. Attention is also given to emerging trends in tactics and equipment. The chapter will focus in particular on the world’s most piracy-prone areas around the seas of Indonesia and the Strait of Malacca. It will then go on to examine some of the anti-piracy measures that have been implemented. Their effectiveness will be analyzed and their shortcomings explained. Finally, this paper proposes some recommendations on the direction that future counter-measures should take.

The securitization of piracy: differing national perspectives The events of 9/11 highlighted the vulnerability of the maritime domain to attack by terrorists. Attention soon turned to the continuing problem of piracy in Southeast Asia and the phenomenon begun to receive considerable attention internationally. This was in part due to speculation in some quarters of a piracy–terrorism nexus. The result was that the region was increasingly being perceived as insecure. Facing an internationalization of the issue, the three littoral states of Indonesia, Malaysia and Singapore began to increase their cooperation in order to enhance maritime security in their part of the region. However, issues such as concerns over the erosion of sovereignty and a lack of resources hampered such efforts. Differing national priorities also caused problems. A secure maritime domain is of paramount importance to Singapore. First, the uninterrupted flow of seaborne trade to and from its port terminals is vital to the stability of its economy. At any one time, there are approximately 1000 ships in port. On average, it is estimated that some 140,000 vessels visit Singapore annually. This includes more than 10,000 oil tankers and 7,000 chemical tankers every year.4 Singapore’s high dependence on the maritime sector is due to its strategic location at the southern end of the Malacca Strait. Over 60,000 vessels pass through the Singapore Strait on an annual basis on their way to the Strait of Malacca,5 a waterway that has been described as one of the arteries of the global economy. Due to its small size and buoyant economy, Singapore has been able to make maritime security a top priority and has implemented a comprehensive and highly effective maritime security strategy, designed to combat piracy and maritime terrorism in its waters. Indonesia on the other hand, consists of over 17,000 islands which cover a land area of around 2 million square kilometres and its territorial waters are nearly four times that size.6 In stark contrast to Singapore, its defence and security resources are already stretched due to continued internal security problems and defence budget constraints. This limits Indonesia’s ability to participate or contribute to regional maritime security. In addition, Indonesia is less concerned with enhancing maritime security in the conventional sense. Its priority is to securitize the maritime domain in order to protect its fishing stocks from illegal fishing, primarily by Thailand, and to prevent the occurrence of an environmental disaster, which would cause the destruction of this resource.

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Malaysia’s views on the concept of security in the context of the maritime domain and the problem of piracy lie somewhere between its two neighbours. Like Indonesia, it is heavily dependent on fisheries in the strait for employment and as a food source, thus their protection is a high priority. On the other hand, Malaysia is currently encouraging the growth and expansion of its Tanjung Pelepas Port, which it hopes will rival Singapore’s facilities in the future. Malaysia’s interests and priorities have manifested themselves over the years as a combination of, on the one hand, a willingness to participate in the more conventional security exercises advocated by Singapore, and on the other, a playing down of the severity of the problem of piracy.

What is in a name? Piracy versus armed robbery From a strictly legal perspective, there is very little piracy per se in the world today. The standard legal definition of piracy that is used in the United Nations Convention on the Law of the Sea, states that piracy is: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act inciting or of intentionally facilitating an act described in subparagraph (a) or (b).7 It is axiomatic to the Law of the Sea Convention’s anti-piracy regime that piracy jure gentium (i.e. in international law) cannot occur within the territorial sea, internal waters or archipelagic waters of a state.8 The difficulty with this is that most attacks on ships do occur within the 12-mile limit of a state’s territorial waters or the archipelagic waters of an archipelagic state and not on the high seas. Therefore such incidents are not legally considered piracy; they are in fact armed robbery. To overcome this problem the IMB has adopted the following broad definition: Piracy is an act of boarding any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act.9 However this wider definition, which covers all acts regardless of the location of the vessel, is not recognized in international law.

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As the majority of attacks in Southeast Asia take place within territorial waters, as is the case along most of the Strait of Malacca, or within archipelagic waters such as those of Indonesia or the Philippines, it is important to note once again that under international law these incidents are in fact considered armed robbery. However, for the purposes of this paper the term piracy will be used in such cases.

Southeast Asia – a hotspot for attacks Southeast Asia, with its vast and complex coastlines encompassing both the Indonesian and Philippine archipelagos – whose islands total over 20,000 in number – is a fertile ground for the growth of piracy. Targets are never in short supply. Approximately one-third of the world’s trade and half of the world’s oil passes through the Strait of Malacca. The vessels which transit the waterway are particularly vulnerable when making their passage through narrow channels of the strait. Small product tankers and fishing vessels are particularly vulnerable to the pirate boats with outboard motors, which allow them to travel at high speeds. The high volume of maritime traffic also helps to provide cover for a perpetrator’s attack. Despite a slight decrease in the number of reported piratical incidents, Indonesia continues to record the highest number of both successful and attempted attacks in the world with 79 reported in 2005.10 The Malacca Strait ranked sixth highest with 12 reported incidents, which was a welcomed decrease from last year. Malaysia also witnessed a decrease. The number of attacks which took place in Singapore remained approximately the same, with seven being reported. The reduction in the number of attacks in the Malacca Strait is likely to be due to a number of factors. First, the devastating effects of the tsunami are thought to have caused the destruction of boats and equipment used by the pirates and may have even killed many of those involved. Second, during the reconstruction effort immediately after the tsunami there were a number of foreign naval vessels in the area that may have made it harder for the pirates to carry out attacks. Third, the peace agreement recently signed between the Indonesian Government and the separatist group the Free Aceh Movement (GAM), which is often held responsible for attacks in and around the Indonesian archipelago, and its subsequent disarmament, could also have contributed to the decrease.

The modus operandi of attacks and current trends Harbour and anchorage attacks This type of attack is most common in Indonesian waters and consists of the opportunistic boarding of a ship while it is berthed or at anchor in or near a harbour; 51 actual attacks out of a total of 72 that occurred in Indonesia fall into this category.11 The majority of these attacks were carried out against vessels which sail on local voyages. They generally take place at night between 0100 and 0600 hours. The criminals board a ship, steal what they can immediately lay their hands on – for example cash or electronic equipment – and escape, often without the

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knowledge of the crew. There is evidence of selective opening of containers or holds with high value cargoes, implying prior knowledge of the cargo manifest. This may be due to the fact that the perpetrators previously had access to the ship as employees of a shore-based contractor. In Southeast Asia, these attacks tend to be less violent, as the robbers are not interested in serious confrontations. In some cases it has been reported that the pirates fled empty-handed when intercepted or confronted by an alert crew. The average take is less in this type of attack than other more sophisticated operations, and ranges from US$5,000 to US$10,000.12 Attacks against vessels at sea: robbery This kind of piracy is often referred to as ‘Asian’ piracy. The sea areas dotted with islands and rocks which characterize the region form ideal hiding places for these ‘hit and run’ attacks which have in the past taken place quite frequently. In this type of attack, the pirates come alongside a ship underway, usually at night, again most often between 0100 and 0600 hours, board it using grappling hooks and then take cash and valuables from the ship’s safe and the crew, including high-tech navigation equipment or whatever else they can seize quickly. In this type of attack the value of the stolen goods can be between US$10,000 and US$20,000.13 In recent years there has been an increase in the number of incidents where several vessels intercept a target and open fire on the ship, forcing it to stop. In this style of attack the ship can be taken over for up to a few hours by around five to ten pirates, although many attacks can be over within half an hour. This mode of attack requires a certain amount of capital investment in boats and arms, and a certain degree of organization is necessary in order to coordinate a large group and to obtain inside information regarding what a particular vessel is carrying. Since mid-2004 there has been a drastic reduction in the number of robberies taking place in the Malacca and Singapore Straits. In that year, there were only eight reported robberies at sea out of a total of 41 attacks, whereas in 2003 there were 20 robberies out of a total of 36. This pattern has continued into 2005. The decrease in robberies at sea, as opposed to other types of piracy, of which some saw an increase over the same period, may be due to an increased awareness on the part of some crewmembers of the threat of piracy following the introduction of new maritime security requirements for vessels. Attacks against vessels at sea: hijacking This brand of piracy involving a vessel underway may be less common but is far more serious. It involves the long-term seizure or hijacking of a vessel, perhaps for several days, while the cargo is unloaded at ports selected by the pirates or transferred to another vessel. In Southeast Asia, particularly in the late 1990s, the favourite cargo to steal was fuel oil, which was easily sold onto a booming black market.

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This type of incident was not seen at all in 2003. It is believed that China’s crackdown on black-market activity and the disruption of some of the international crime syndicates believed to be involved in piracy in the region (several of which were thought to have been run by Indonesian-Chinese bosses) was a contributing factor. However, this positive development was short-lived, as such an operation was recently carried out in an attack which took place on 22 April 2005. At 5 am, gun-wielding pirates hijacked a vessel carrying a cargo of tin worth US$4.6 million just off the Lingga Islands in Indonesian waters. The vessel, which was en route to Singapore, was boarded by the pirates, who then ordered the crew to sail the ship to Pasir Gudang port, in Malaysia’s southern Johor state. The vessel docked in Pasir Gudang port for two days while the crew unloaded the tin into a warehouse under threat of being killed if they did not cooperate. On 25 April, the pirates ordered the ship back to Indonesian waters and escaped in a speedboat, leaving the crew uninjured. After the incident was reported, authorities checked the warehouse and found the cargo of tin intact. The investigation continues.14 This kind of operation requires good intelligence gathering and careful planning as the risk of being caught is greater. However, the potential rewards are also great. There is a need for the pirates to have secured a location to dock and unload the cargo, or another ship to which to transfer it. Reliable access to markets for their stolen cargo is also required. There must be a plan to deal with the hostages. The pirates may also in some instances gain the compliance of the local authorities. Bribery is often used to achieve this goal. In some extreme cases, it is believed that officials may even provide pirates with information on vessels and cargoes in their areas of jurisdiction. A variation of this category of attack is the permanent seizure of a vessel by pirates, wherein the vessel is turned into a ‘phantom ship’; the key difference being that once the pirates have disposed of the vessel’s cargo, they do not abandon the vessel. In this type of attack the ship is repainted and the crew dumped or killed. The ship then sails into a new port with a false name and forged documentation. Maritime certificate fraud is common in the maritime industry. The problem lies in the fact that it is possible to acquire, relatively easily, the legal documents needed to command a vessel, without any proof of qualifications. In these types of operations the vessel is often given a temporary six-month registration under a flag of convenience.15 This allows the vessels’ owners to hide behind a wall of secrecy created by the dubious ownership structures of flag of convenience shipping. These vessels are then often used in various maritime criminal activities, such as conducting pirate attacks and smuggling goods and people. The most famous case of this kind was the hijacking of the Singaporeanowned Petro Ranger, in April 1998. A large tanker carrying a cargo of diesel and Jet-A1 fuel, the Petro Ranger was on its way from Singapore to Ho Chi Minh City. The vessel was taken over by pirates three hours out of Singaporean waters. The ship’s name was painted over and it was renamed MV Wilby. Its Malaysian flag was exchanged for a Honduran one. A day later most of its cargo was transhipped into two other tankers in the Gulf of Thailand. The ship was sailed into port on China’s Hainan Island, where the pirates passed themselves off as the

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ship’s rightful crew. Despite the fact that the Chinese authorities arrested the pirates, they were released after only a few months in jail.16 In recent times there has been a shift away from the hijacking of larger freighters and tankers, and an increase in attacks against tugboats. These vessels can avoid suspicion given their small size and the fact that they are a common sight in ports and international waterways. In 2003, according to IMB statistics, a total of 13 vessels were hijacked in Southeast Asian waters. 10 out of the 13 hijacked ships were tugs either sailing alone or pulling barges.17 Although the figures are lower for 2004, they show the same pattern of targeting: out of the eight hijackings that took place, five of the vessels were tugboats.18 There was a concern that the stolen tugs could be used by terrorists to carry out attacks against shipping in the Strait of Malacca. Stories circulated in the media that these vessels could be packed with explosives and rammed into tankers carrying gas or petroleum products, or into port facilities close to large cities. Kidnap-for-ransom This category of piracy first emerged in 2001 and since then there has been a rapid and worrying increase in the number of cases in Southeast Asian waters. In 2004 alone there were 14 kidnap-for-ransom attacks in the Malacca and Singapore Straits. This was more than triple the number that occurred in 2003. The figures are lower in 2005, due to the overall decrease in the number of attacks taking place. However, kidnap-for-ransom attacks still feature prominently in attack statistics.19 In a typical operation of this kind the attackers perform an armed takeover of the vessel (often the vessel is a small one, for example a tugboat) followed by the abduction of two or three senior members of the crew who are held ashore pending negotiations. The result is normally the release of the kidnapped crew members following the payment of a ransom by the crew’s employers.20 According to Noel Chong of the IMB, many of these attacks are likely to go unreported as ship owners want to avoid a backlash from the industry for giving in to the demands of the pirates.21 Ransoms demanded for the release of crew members can range from US$100,000 to US$200,000. However, the sum of money eventually paid to the attackers following negotiations is usually substantially lower, somewhere in the region of US$10,000 to US$20,000. This new brand of piracy drew considerable media attention when two incidents occurred consecutively within a few days in the Malacca Strait. In the first attack, which took place on 12 March 2005, the target was an Indonesian chemical tanker. Thirty five gunmen, who according to reports were armed with rocket launchers, stormed the tanker and kidnapped the captain and the chief engineer. The second attack took place two days later on 14 March. The target this time was a Japanese-registered tugboat, which was towing a construction barge from Indonesia to Myanmar. Pirates in three fishing boats opened fire on the tug, forcing it to stop. The pirates stole US$7,000 worth of navigational charts and documents and kidnapped three members of the crew. The attacks

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sparked a considerable reaction from the littoral states Indonesia and Malaysia, which launched rescue operations thereafter. In the past it was believed that, rather than pirates, terrorist groups such as ASG and GAM, were responsible for carrying out these attacks. GAM in particular was singled out as being responsible for the dramatic increase in attacks in Indonesian waters at the northern end of the Malacca Strait, off North Sumatra; this is traditionally one of its areas of operation. Since the 1970s GAM has been fighting a separatist war against the Indonesian Government, with the aim of creating an independent Islamic kingdom in the province of Aceh. The group is said to finance its terrorist activities in part through sea piracy and smuggling.22 However, GAM has only ever admitted to carrying out one attack against a boat being chartered by Exxon Mobil in 2002. Additionally, another such attack attributed to GAM was the hijacking of the Penrider, en route from Singapore to Penang, in August 2003. Approximately 12 pirates boarded the oil tanker 12 miles from Port Klang, Malaysia, in the Malacca Straits and kidnapped three crew members.23 After protracted ransom negotiations, the hostages were returned unharmed. According to one member of the crew, the pirates wore military-style fatigues, spoke the Acehnese language and claimed to be Aceh soldiers. Some of the hostages were even taken to jungle hideouts in Aceh and, according to the statements made by the victims, the pirates made no secret of the fact that they belonged to GAM.24 Despite evidence pointing to the involvement of GAM, officials remain undecided. It would have been their first such attack so close to the Malaysian coast and so far south of Aceh. GAM also vehemently denied any involvement. The rapid increase in incidents of kidnap-for-ransom has prompted many players in the maritime security industry to come to a new conclusion – that these attacks are not necessarily perpetrated by terrorist groups but are the work of crime syndicates operating from fishing boats and staging copycat kidnaps which they see as an easy way to make money.

The suspects Small-scale criminals Pirate attacks in Southeast Asia are carried out by a variety of groups. However, small-scale petty criminals perpetrate the majority. For this reason, their attacks are less organized and more opportunistic in nature. Their targets are mostly small vessels in port or anchorage, or those on local voyages between, for example, one Indonesian port and another. This category of pirate is also least likely to be well armed. Most will carry knives or machetes but occasionally guns may also be used. Those suspected of being involved in small-scale pirate attacks in and around the Strait of Malacca are believed to be mainly of Indonesian nationality, living in coastal settlements. They use piracy as a way of supplementing their inadequate living. There has also been speculation that certain members of the Indonesian military have been involved.

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Criminal syndicates The IMB believes that about five criminal syndicates – probably based in Indonesia and Malaysia – are responsible for most of the larger-scale hijackings in the Straits of Malacca.25 These attacks involve well-trained personnel using fast boats, modern weapons and in some cases, sophisticated communications.26 These groups are likely to have established links to the black market, where they would be able to dispose of their stolen cargo. They may also be in collusion with local authorities, who would be needed to guarantee a safe port for cargo to be unloaded or in some cases a secure berth where a vessel can be given a new identity. These pirate groups may have connections with warlords and political movements that are linked to terrorism. This is particularly the case in the Southern Philippines where individuals kidnapped by pirates are then often sold on to the ASG. Terrorist groups As noted above, although there has often been very little hard evidence to substantiate the claim, the terrorist group GAM has frequently been held responsible for pirate attacks in the Strait of Malacca, the waters around Indonesia and even Malaysia. However, since the recent signing of a peace agreement with the Indonesian Government, this may no longer be the case. In the Philippines the line between piracy and terrorism is even more unclear. ASG, the Moro Islamic Liberation Front (MILF) and the Moro National Liberation Front (MNLF) engage in maritime piracy to generate much needed funds.27 There has even been speculation that some segments of ASG are undergoing a process of criminalization.28 In other words, they are becoming increasingly motivated by pecuniary rewards rather than ideological or political goals.29 The targets of these groups are often small, vulnerable vessels such as tugs or fishing boats. This is due to the fact that the target is not the vessel itself, or its cargo but the crew members, who are kidnapped and held for ransom. In such cases, when the attack takes place in the Strait of Malacca or the waters around Indonesia, it is most likely that the hostages will be released unharmed. However, in the waters around the Philippines some of these attacks are carried out by the ASG who has been known to kill hostages in the past.30

Equipment Pirate boats are usually equipped with several outboard motors on the back, allowing them to go almost three times as fast as many vessels. They often make use of modest radar systems to help them locate their targets. Pirates also use a low-tech version of stealth technology by using wooden boats which are hard to spot on radar.31 According to reports, pirates can be armed with weapons ranging from knives to rocket launchers, AK47 and M16 rifles.32 However, in a typical attack the most common weapons used are still knives and guns.

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The targets The vessels most commonly targeted by pirates in Southeast Asia are bulk carriers, which accounted for a third of all the attacks in the region. This is due to a number of factors: bulk carriers may travel at a limited speed when making their way up the narrow waterways of the straits and they are also minimum freeboard ships. Thus the vessel is more easily boarded by pirates when it is underway. These vessels are vulnerable while at anchor or at berth because there is likely to be a reduced crew while they await the next cargo. Pirates have also attacked bulk carriers during cargo operations, when the crew is preoccupied with the task of loading the new cargo. In the Straits of Malacca and Singapore specifically, over the last five years the most common targets have been product tankers and general cargo vessels. These vessels are likely to be attacked firstly because they are numerous in these waters, and secondly because they are frequently engaged on local voyages closer to the coast, thereby making them easy targets for pirates lying in wait.

Contemporary causes of piracy Piracy has always been endemic in Southeast Asia; indeed, the colonial powers that came to the area in the nineteenth century were faced with managing the problem. However, in the past the incidences of piracy were kept at lower levels than today. It is believed that frequent naval patrols and the political/military presence of colonial powers in the region, followed by the increased US–Soviet presence during the Cold War, were both contributing factors to the reduced levels of piracy up until the last decade. The high rates of piracy more recently seen in the region are believed to have been caused initially by the harsh economic impact of the 1997 Asian financial crisis, when many people lost their jobs, adding to the poverty that already existed in some parts of the region. The deteriorating financial situation forced people, especially those in coastal areas, to use piracy as a way to supplement their income. The economic collapse also caused widespread political instability, in particular in Indonesia. As a result it was easier for people to pursue illegal methods of income generation. In addition, the Asian financial crisis caused the value of the Indonesian defence budget to decline by 65 per cent from 1997 to 1998. This worsened its already tight fiscal problems and prevented the country from allocating more to its maritime security force.33 The increase in the amount of commercial traffic traversing the region’s waterways is another factor which accounts for the rise in incidents of piracy. Seaborne trade has doubled every decade since 1945 and shipbuilding tonnage worldwide has doubled since 1990.34 This has substantially increased the number of potential targets for pirates to attack. Another problem is the growing trend towards the use of ‘skeleton crews’, in other words ships staffed with the minimum amount of people necessary. These crews are asked to carry out multiple tasks at the operational level and will find it

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difficult to perform anti-piracy security measures. Thus, ships are more easily boarded and taken over by the pirates.

The impact of piracy Besides the obvious and increasing human toll, piracy is responsible for aggravating economic and financial damage to countries as well as the international shipping industry. Fraud, stolen cargoes, delayed trips and increased insurance premiums are all consequences of piracy and have a direct economic effect on those at the receiving end of the crime.35 The impact of piracy is hard to gauge in monetary terms. Estimates of global piracy costs range from as low as US$250 million36 to US$16 billion a year.37 However, the frequency and fiscal damage of piracy is less than that of shore-based crimes in many countries in Southeast Asia; therefore there is a tendency to place piracy low on the list of law enforcement priorities. This is true particularly for Indonesia whose defence and security resources are already stretched due to continued internal security problems and defence budget constraints. In addition, Indonesia benefits less from the trade that transits the Straits of Malacca than, for example, Singapore. Unlike the other littoral states, Indonesia’s economy is not heavily reliant on shipping. The eastern coast of Sumatra, along which the straits run, remains largely underdeveloped. For this reason amongst others, Indonesia has traditionally lagged behind its neighbours when it comes to maritime security. One final and perhaps often understated issue is the potential for a pirate attack to cause a major environmental disaster. In the Philip Channel, in the Singapore Strait, the interval between ships proceeding in any one direction is only approximately 20 minutes.38 During a pirate attack the crew is most often rounded up and held captive, and consequently unable to maintain look-out and other navigational responsibilities, which are essential when transiting the region’s narrow waterways. The environmental consequences of a collision involving an unmanned oil tanker could be enormous. Indeed, it is believed that an incident of this kind may have already taken place. In 1992, the Japanese super tanker the Nagasaki Spirit collided with the Ocean Blessing, which was zigzagging through shipping lanes at the northern end of the Strait of Malacca and possibly under pirate control. The accident and resulting fire killed all of the crew aboard Ocean Blessing and all but two of the tanker’s crew. Fortunately, although 12,000 tonnes of oil spilled into the sea, because it was light oil which evaporated, diffused, and disappeared rapidly in the tropical climate, major environmental damage was avoided.39

The response As most piracy is legally considered armed robbery, any countermeasures are the responsibility of the state. The investigation, capture, prosecution and punishment of pirates who operate within territorial waters therefore vary due to the diverse national legal systems of the states in the region. However, given the transnational

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nature of piracy, multilateral cooperative measures are needed to effectively deal with the problem. Unfortunately, obstacles to cooperation are numerous. These may include concerns over the erosion of national sovereignty and differing political and economic priorities. Despite these problems, the region witnessed the introduction of two new important maritime security measures in 2004. One was the International Ship and Port Facility Security Code (ISPS Code), which was created by the International Maritime Organization (IMO) to introduce worldwide a range of new security requirements for vessels and port facilities. The other was the launch of the Trilateral Coordinated Patrol, which involved the navies of Indonesia, Malaysia and Singapore patrolling in a coordinated fashion in their respective territorial waters. Following the introduction of these two new measures in mid-2004, there was not, however, any significant reduction in the total number of incidents of piracy in the region in the second half of 2004. The figures for 2005 are more promising; however, this reduction is most probably a result of the devastation caused by the tsunami, which is likely to have either killed some of those involved in piracy or destroyed their boats and weapons, rather than because of any anti-piracy measures. Although the ISPS Code significantly increased security awareness in the maritime industry, the standard of enforcement of the new IMO regulations varies from country to country. This is especially true in the case of states that have on their shipping registers flags of convenience vessels. These states ‘lack the resources or people with sufficient expertise to enforce the standards that are acceptable to the shipping community at large’.40 In fact in the majority of cases, one could argue that although security plans may be in place and security officers designated, the unfortunate reality is that it is often crewmembers of a fairly low rank and with limited training who are tasked to implement the code.41 The Trilateral Coordinated Patrols have also been limited in their ability to reduce piracy. The main problem being that there is a lack of provision for ‘hotpursuit’ into each others’ territorial waters. Although arrangements were put in place for communication to be established between the navies in the case of a cross-border chase to allow one navy to hand over to the other, they are unlikely to be as effective as the employment of ‘hot pursuit’. More recently in 2005 and 2006 a number of new multilateral measures have been or are in the process of being implemented in the region. In the latest development the littoral states, with Thailand as an observer, begin joint air patrols over the Malacca Strait in a bid to boost security in the waterway. It is hoped that the aerial patrols, dubbed the ‘Eyes in the Sky Plan’, will provide a valuable supplement to the Trilateral Coordinated Patrols carried out by the navies of the littoral states. One significant advantage of the aerial patrols is that they will be able to fly for up to three nautical miles inside the territorial waters of the participating states, thus allowing for a reasonable ‘transgression’ of boundaries. In the sea-patrols the navies were limited to patrolling in their own territorial jurisdiction or on the high-seas. On a less optimistic note, the ‘Eyes in the Sky’ plan has already been criticized as being merely ‘for show’. It is estimated that 70 sorties per week need to be carried out by the aerial patrols in order to effectively monitor the strait throughout

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the day and night. However, currently only eight take place.42 There is also a lack of sea-patrol vessels available to carry out investigation and interdiction if necessary, following the sighting of a suspect vessel by the aerial patrols. Although the ‘Eyes in the Sky’ plan clearly has room for significant improvement, the valuable deterrent effect it will have on potential attackers cannot be dismissed. Perhaps more significant is the recent signing of a set of standard operating procedures for the Malacca Strait. The agreement was finalized between Indonesia, Malaysia and Singapore in April 2006. It will allow patrol vessels from one participating country to cross over into the territorial waters of another when in pursuit of a vessel engaged in maritime crime, provided that the patrol vessel does not open fire or carry out any other military actions.43 These new measures, if successfully implemented, should significantly improve security in the region’s waterways since they display a greater level of regional cooperation than seen previously. The littoral states seem to have finally overcome one of the major stumbling blocks to enhancing maritime security in the Malacca Strait – concern over the erosion of their territorial sovereignty. In the meantime however, pirate attacks will continue in the region’s waterways, and ship owners are increasingly looking elsewhere for ways to enhance their security. One solution that has rapidly gained popularity in recent months is the employment of private security companies who are offering armed escort services through the straits. For between US$10,000 and US$100,000 a shipping company can have armed Gurkhas, escort vessels and helicopter scouts securing its passage through the straits.44 Despite assurances that the escorts merely act as a deterrent to potential attackers, they have provoked a strong response from the littoral states. Both Indonesia and Malaysia have declared that these companies should not provide armed escorts through their waters. Malaysia even announced its plans to detain ships with private armed escorts.45 However, the Malaysian Defence Minister subsequently stated that armed escorts would be allowed to pass though Malaysia’s stretch of the Malacca Strait, provided that their passage is continuous and expeditious.

Recommendations and conclusions Piracy in Southeast Asia is likely to remain a major security concern for governments and the shipping industry for the foreseeable future. It also acts as a constant reminder of the potential ease with which terrorists could use similar tactics to carry out an attack. As long as piracy continues, it clearly illustrates that a certain amount of anarchy or lawlessness prevails in the region’s waterways. Piracy levels are therefore an indicator of the overall security in the region. America’s war on terrorism following 9/11 put maritime security under the spotlight and prompted the region’s states to begin improving security in the maritime domain. This assertive posture must be maintained. Cooperation between the region’s states must be enhanced to include agreements on ‘hot pursuit’ and more mechanisms for intelligence sharing.

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In the Strait of Malacca the need to address the problem of piracy has recently become even more urgent. Following a risk assessment of the area, the Joint War Committee (JWC) of Lloyd’s Market Association declared the straits a ‘high-risk zone’ and added it to its list of areas which are at risk to war, strikes, terrorism and related perils. Others on the list are countries such as Iraq, Lebanon and Somalia. Indonesian ports along the straits were also added to the list. This move by the JWC could result in higher insurance premiums for the ships that transit the straits or call at some Indonesian ports. When war risk premiums were applied to the Yemeni port of Aden, container shipping lines were forced to divert to neighbouring ports. The resulting impact on the Yemeni economy was severe. Major users of the region’s waterways must begin to accept a greater responsibility for enhancing maritime security. Japan is one user state that has contributed significantly to efforts to improve safety and security in the Straits of Malacca. For example, it is currently providing support to Indonesia in order to help it implement the ISPS Code in its ports. Japan’s efforts could be used as a model for other states wishing to provide assistance – in particular in the areas of maritime enforcement capacity building, personnel training and resources – in the future. It would be advantageous if all the Southeast Asian states signed the IMO’s 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA): ‘Ratification of the convention gives signatory governments the power to prosecute people caught in their own territorial waters for acts of piracy committed under another country’s jurisdiction.’46 Although the SUA Convention has been signed by 126 out of 166 IMO member states, which is a high number of contracting states in comparison to many other maritime conventions, a number of countries are conspicuously missing from the list, given their important position as guardians of strategically important waterways. In Southeast Asia, only Brunei, Myanmar, the Philippines, Singapore and Vietnam are signatories to this convention. Finally, long-term solutions need to be found to address the root causes of piracy, which may include poor socio-economic conditions. Indonesia’s efforts in this area are a step in the right direction but more will need to be done in the near future, if the problem of piracy in Southeast Asia is to be resolved.

Notes 1

A. Young, ‘Roots of contemporary maritime piracy in Southeast Asia’, in D. Johnson and M. Valencia (eds) Piracy in Southeast Asia: Status, Issues, and Responses, Singapore: ISEAS, 2005. 2 ‘Abu Sayyaf Group’, FAS Intelligence Resource Program. Available online at: (accessed 10 May 2005). 3 Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime Bureau, 2004, p. 10. 4 Maritime and Port Authority of Singapore, Available online at: (accessed 5 May 2005). 5 Straitrep 2004 data provided by Captain M. Mathai from the Nippon Maritime Centre, Singapore.

76 6 7 8 9 10 11 12 13 14 15

16 17 18 19 20 21 22 23 24 25 26 27 28

29

Catherine Zara Raymond B. Brunner, ‘The year of living dangerously: Indonesia after Suharto’, 7 June 1999. Online. Available online at: (accessed 31/10/2005). Article 101, United Nations Convention on the Law of the Sea. Available online at: (accessed 12 May 2005). J. Chenevier, ‘Piracy under the Law of the Sea convention: conceptual basis and practical limitations’, MLAANZ Journal, vol. 15, part 2, 2000, p. 50. ‘Co-operation for law & order at sea’, CSCAP Memo 5, p. 14 Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime Bureau, 2005, p. 5. Ibid., p. 8. A. Young and M. Valencia, ‘Conflation of piracy and terrorism in Southeast Asia: rectitude and utility’, Contemporary Southeast Asia, vol. 25, no. 2, 2003, p. 272. A. Davis, ‘Piracy in Southeast Asia shows signs of increased organization’, Jane’s Intelligence Review, 1 June 2004, p. 2. Worldwide Threat to Shipping Mariner Warning Information, Office of Naval Intelligence Civil Maritime Analysis Dept, 18 May 2005. A flag of convenience ship is one that flies the flag of a country other than the country of ownership. Cheap registration fees, low or no taxes and freedom to employ cheap labour are the motivating factors behind a ship owner’s decision to use flags of convenience. Anti-Shipping Activity Messages, 1998. Available online at: (accessed 20 May 2005). Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime Bureau, 2003, pp. 27–44. Piracy & Armed Robbery Against Ships Annual Report, 2004, pp. 29–43. S. Bateman, C. Z. Raymond and J. Ho, Safety and Security in the Malacca and Singapore Straits: An Agenda for Action, IDSS Policy Paper, May 2006, p. 21. A. Davis, ‘Piracy in Southeast Asia shows signs of increased organization’, p. 3. Ibid. R. Emmers, Non-Traditional Security in the Asia-Pacific: The Dynamics of Securitisation, Singapore: Eastern University Press, 2004, p. 37. ‘New brand of piracy threatens oil tankers in Malacca Straits’, ICC Commercial Crime Services, 2 September 2003. Available online at: (accessed 6 September 2005). K. McGeown, ‘Aceh Rebels Blamed for Piracy’, BBC News Online, 8 September 2003. Available online at: (accessed 21 May 2005). S. Elegant, ‘Dire straits’, Time Asia, 6 December 2004, p. 2. ‘Piracy and maritime terror in Southeast Asia’, IISS Strategic Comments, vol. 10, issue 6, July 2004. Available online at: (accessed 22 May 2005). E. M. R. Santos, ‘Piracy and armed robbery against ships: Philippine perspective’, Paper delivered at ISEAS conference on Maritime Security, Maritime Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 5. If a group becomes motivated by pecuniary rewards, the acts that it carries out no longer fall under the definition of terrorism, which states that: terrorism is ‘the unlawful use or threatened use of force or violence against people or property to coerce or intimidate governments or societies, often to achieve political, religious, or ideological objectives’. Available online at: (accessed 1 July 2005). S. Eklof, ‘Political piracy and maritime terrorism: a comparison between the Southern Philippines and the Straits of Malacca’, Paper delivered at ISEAS conference on

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31 32 33

34 35 36

37 38 39 40 41 42 43 44 45 46

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Maritime Security, Maritime Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 5. The use of piracy by terrorist groups must not be confused with acts of maritime terrorism. It has been well documented that terrorist groups have resorted to criminal activities in order to generate funds for their political campaigns. However, these criminal acts are not in themselves acts of terrorism. K. Bradsher, ‘Threats and responses: seaborne trade; warnings from Al Qaeda stir fear that terrorists may attack oil tankers’, New York Times, 12 December 2002, p. 3. Special press summary: piracy in the Malacca Straits, Virtual Information Centre, 16 February 2005, p. 7. R. Dillon, ‘Piracy in Asia: a growing barrier to maritime trade’, The Heritage Foundation Backgrounder, no. 1379, 22 June 2000. Available online at: (accessed 5 May 2005). J. Boutilier, ‘The best of times, the worst of times: the global maritime outlook 2004’, Paper delivered at IDSS conference on ‘Maritime Security in the Asia-Pacific’, 20–1 May 2004, p. 1. M. Valencia, ‘The politics of anti-piracy and anti-terrorism responses in Southeast Asia’, Paper delivered at ISEAS conference on Maritime Security, Maritime Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 4. J. Ho, ‘Maritime counter-terrorism: a Singapore perspective’, Paper presented at the Observer Research Foundation Workshop on Maritime Counter-Terrorism, New Delhi, 29 November 2004. Available online at: (accessed 15 May 2005). J. J. Brandon, ‘Protect Asia’s Shipping’, PacNet News Letter, 24 May 2002. Online. Available online at: (accessed 16 May 2005). J. Abhyankar, ‘Piracy, armed robbery & terrorism at sea in Southeast Asia; a global & regional outlook’, Paper delivered at ISEAS conference on Maritime Security, Maritime Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 9. J. Shutzer, Piracy in Indonesia. Available online at: (accessed 30 November 2005). K. Matthews, ‘Trade and shipping: a common interest of the Asia-Pacific’, Australian Maritime Affairs, 10, 2003, p. 54. For a comprehensive discussion on the topics of flags of convenience and the ISPS Code, see chapters by G. Stølsvik and J. G. Christophersen. G. G. Ong and J. Ho, ‘Maritime air patrols: a new weapon against piracy in the Malacca Straits’, IDSS Commentary, 13 October 2005. Remarks by Chief of Defence Force LG Ng Yat Chung at the Malacca Straits Patrol (MSP) Joint Coordinating Committee Terms of References and Standard Operating Procedure Signing Ceremony. T. Sua, ‘For Hire: guardians of the sea; several firms now offer escort vessels and mercenaries’, The Straits Times, 15 April 2005. W. Soewriaatmadja, ‘Indonesia rules out private armed escorts in Malacca Straits’, Bloomberg News. Available online at: (accessed 3 May 2005). N. Ronzitti, Piracy and international law, Leiden: Martinus Nijhoff Publishers, 1990, p. 21.

7

Maritime terrorist threat in Southeast Asia Arabinda Acharya

Of late there has been a growing concern about the possibility of a ‘maritime spectacular’ by terrorists in Southeast Asian waters. Security experts, government officials and shipping companies are getting increasingly worried about the terrorists’ potential for a disastrous maritime terrorist incident, targeting the critical shipping lanes such as the Strait of Malacca and the Singapore Strait. There is much apprehension that terrorists could team up with pirates to hijack a commercial vessel or a cruise liner and use it as a floating bomb to ram against a maritime target to cause widespread death and destruction or sink a big ship in a choking point in the Strait of Malacca to disrupt global trade and commerce. The possibility of Al Qaeda and/or its associate groups smuggling a crude nuclear or radiological device into a hijacked ship or loading the same into a container and setting it off in a port city, shipping lane or waterway has also emerged as one of the possible doomsday scenarios.1 On the other hand however, there appears to be no consensus on the part of regional governments on how best to counter the maritime terrorist threat. While they recognize that treatment of the issue, as a mere law enforcement problem of the concerned states alone, could be inadequate, a consensus on a framework for a multilateral and collaborative approach in this respect appears to elude the region. Proposals, such as the Regional Maritime Security Initiative (RMSI) proposed by the US Pacific Command have generated much scepticism, outrage and rejection among some of the members of the Association of Southeast Asian Nations (ASEAN). At the same time, the possibility of dealing with the maritime threats within the framework of the ASEAN Security Community (ASC) or with the ASEAN Peace Keeping Force seems remote, as the proposals put forth by Indonesia appear, as of now, to be non-starters. Terrorist threat in the maritime domain Al Qaeda’s spectacular air attack on 11 September 2001 exposed vulnerabilities in sectors such as shipping, port infrastructure, the supply chain and container traffic, which hitherto have remained largely unprotected. However terrorist incidents involving maritime interests were not unprecedented. The 1985 terrorist hijacking of the cruise ship Achille Lauro off the coast of Egypt brought the

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spectre of maritime terrorism, reminiscent of the terrorism in the skies, to public attention. In November 1991, the Liberation Tigers of Tamil Elam (LTTE) demonstrated its maritime terrorist capabilities by attacking Sri Lankan naval supply ship Abheeta with an explosives-laden suicide craft at the KKS harbour in northern Sri Lanka. The attack on USS Cole in October 2000 off the coast of Yemen was a bold statement of both the intention as well as the capabilities of terrorist groups to target high value maritime assets including naval vessels. However, despite increasing awareness of the vulnerability of maritime assets to terrorist attacks, maritime security did not receive sufficient attention until September 11.2 There was little systematic research into maritime capabilities of terrorist groups. This was mainly because terrorist incidents in the maritime sector have been very few and far between. Of all the international terrorist incidents over a period of the last 30 years, only 2 per cent of the attacks involved maritime assets.3 This low incidence rate could be attributed to several factors. Most terrorists groups as well as terrorists themselves are ‘land lubbers’ and tend to be tactically conservative. They resort to tried and trusted methods and opt for the course that offers least resistance. Land-based targets or targets involving the aviation sector offer leverage both in terms of greater ease of access and higher visibility. Numbers of targets that can be attacked on land are usually large and hence difficult to secure against attacks.4 Besides, terrorist attacks against maritime interests require specialist equipments and skills – knowledge about boat and ship operations and boarding techniques, to name a few. Most terrorist groups with the exception of LTTE have little experience with, and expertise of, the maritime environment. It was therefore believed that groups most likely to operate in the maritime domain would be ‘those who possess specialized explosives and naval skills, and have emerged from geographic regions where maritime skills are prevalent’.5 Significantly, the maritime sector was not considered as attractive a target as the ones on land or in the sky in terms of the impact of a terrorist attack. Terrorist attacks are generally designed to seek attention for their cause. The coverage of such attacks is greater on land.6 Attacks on ships do not make headlines the way a hijacking of an aircraft does or as September 11 did. Unless the attack involves a very high profile target such as the USS Cole or is sensational, as with Achille Lauro, a terrorist incident involving the maritime sector is less likely to attract international attention than media-accessible land targets.7 After September 11, new security challenges emerged in the maritime sector. There is a growing interest among terrorist groups to target assets in the maritime domain as evidenced from a number of attacks, as well as the planning for attacks, involving groups such as Al Qaeda and its affiliated or associated groups such as Jemmah Islamiyah (JI) and the Abu Sayyaf Group (ASG) in Southeast Asia. Arrests of members of JI in Singapore in December 2001 revealed plots to attack US naval facilities and ships in the region. The Malaysian Special Branch also disrupted a plan by the Kumpulan Militan Malaysia (KMM), a terrorist group, to ambush a US ship in 2001 in Malaysian waters. Senior Al Qaeda operative, Omar al-Faruq (who was in US custody), also told officials of plans to attack an

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American naval ship in Surabaya, Indonesia’s second largest port. In February 2002, terrorists planned to hijack a passenger airliner and crash it onto a US warship in the Indian Ocean. In June 2002, Moroccan authorities foiled attempts to attack merchant and naval vessels in the Strait of Gibraltar.8 In October 2002, terrorists attacked French tanker Limburg carrying 158,000 tonnes crude oil in the Gulf of Aden in Yemen. According to the US Energy Information Administration, the 12 October 2002 Bali bombings raised concerns throughout the region that other targets – including oil transit ‘chokepoints’ such as the Strait of Malacca – could be targeted by terrorists.9 The terrorist attack on the SuperFerry 14 in Manila by the ASG in February 2004 is one of the worst maritime disasters in terms of the number of persons killed or missing. The reasons for this increasing interest to target the maritime assets are many. Terrorists’ opportunity to operate on land or in the sky is getting restricted due to the hardening of land-based targets and the aviation sector especially after September 11. By its very nature, the marine domain offers an opaque and largely amorphous environment, which the terrorist groups can exploit. More often than not, maritime assets are exposed to lax governance and poor security in vast areas of un-policed waters.10 The maritime domain is the most unregulated of spaces and the least policed.11 As Matthew Daley, the US Deputy Assistant Secretary of State, put it, ‘as both the physical and political space in which they (the terrorists) find sanctuary shrinks, as the noose tightens’, there is increasing likelihood of them turning ‘to the most unregulated of spaces: the sea’.12 There is also a profusion of targets in the maritime domain to choose from. These include warships, cruise liners, tankers and other carriers, harbour or anchorage attacks, fixed land based targets near ports – oil refineries, oil storage depots, other port infrastructure, energy pipelines and undersea cables – and the hijacking of commercial passenger ships on high seas. Consequently, the maritime domain has emerged as an alternative venue for high profile mass casualty attacks. Besides, September 11 demonstrated how the terrorist groups have a high propensity to acquire increasing levels of tactical sophistication. This would enable terrorist groups to replicate land capabilities in the maritime environment without much difficulty. The maritime milieu provides terrorist organizations an opportunity to develop new methods of assault.13 Another factor is the increasing nexus between terrorism and transnational crime. The nexus or convergence between terrorism and transnational crime is derived from the symbiotic relationship between terrorists and criminals, a dynamic that allows both entities to profit financially.14 With an overall decrease of state financial support for terrorism in the last two decades, combined with the interdiction of terrorist finances, terrorist groups are increasingly taking to crime to generate funds to sustain their activities. One of the manifestations of this is the nexus between terrorism and piracy, which is becoming an area of increasing concern. The maritime domain also offers perceptual and psychological advantages for terrorist operations. Targeting a high profile maritime asset would generate the kind of attention that terrorists seek. Attacks in one place set precedents for other

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terrorist groups to emulate the action in other theatres. This copycat effect was demonstrated in the USS Cole attack on 12 October 2000, which generated enormous political capital and underscored the vulnerability of vessels at ports. Within a month of the USS Cole attack, on 23 October 2000, LTTE suicide boats breached the defences of Trincomalee, the most protected Sri Lankan naval port and destroyed a fast personnel carrier. Similarly, on 7 November 2000, a Hamas suicide boat attacked an Israeli naval craft, which however, exploded prematurely. Significantly, there is an increasing awareness on the maritime sector as an important conduit of global trade and commerce. There has been a very rapid growth in global commercial maritime traffic with about 90 to 95 per cent of world freight moving by sea. Disruption of the global trade and commercial activity by selective targeting of strategically significant maritime assets – strategic waterways, port infrastructures, cruise liners or merchant shipping – fits nicely into the calculation of terrorist groups such as Al Qaeda which seek to inflict the least-cost and most effective damage on the enemy.15 This includes inflicting enormous economic damage to the enemies of Islam – ‘a war against businesses, which will hit the enemy where he does not expect us to’.16 Modern cruise liners are not unlike floating World Trade Centers; ports are the hubs of the global trading network; strategic sea lanes of communication (SLOCs) are the arteries of global commercial activity. An interruption – in a major port or in a strategic sea lane such as the Strait of Malacca – could upset the global supply chain for indefinite periods of time. The supply chain is a highly interdependent web based on real-time information and accuracy. Lead times for deliveries are extremely low. Disruption of cargo movements and supply chains could have devastating consequences for the global economy, even bringing some countries to the edge of economic collapse. As G. Fosler, Senior Vice President and Chief Economist of the Conference Board, an influential US business and economics think-tank put it: The most serious economic consequence of the current global security threat is the vulnerability of countries that depend on global trade to shocks from actual supply interruptions. The threats of terrorism may achieve what the anti-globalization forces have not – a significant slowdown, even decline, in global trade and investment.17 Given the context as outlined above, it is not surprising that there is an increasing concern about terrorist organizations, especially Al Qaeda and its network, turning to the maritime domain. Naval authorities are concerned about possible suicide attacks against warships, while shipping companies and port operators worldwide are worried about securing civilian ports and ships from terrorist attacks. Besides, there is the possibility of terrorists making common cause with pirates particularly in the context of the growing piracy menace in Southeast Asia, with the threat particularly high in the waters between Indonesia, Malaysia, the Philippines and Singapore. Singapore’s Deputy Prime Minister and Coordinating Minister for Security Dr Tony Tan warned how terrorists may ‘seize control of a tanker with a cargo of lethal materials, liquefied natural gas (LNG) perhaps, and

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use it as a floating bomb against our port,’ causing catastrophic damage, not only to the port but also for its people, ‘because our port is located very near to a highly dense residential area. Thousands of people would be killed’.18

Maritime terrorist threat in Southeast Asia Southeast Asia represents the ground zero of maritime threats, both from terrorism and piracy. Following the 11 September 2001 attacks, Southeast Asia emerged as what President Bush called the ‘Second Front’ in the global war on terror.19 The region has been a host to several homegrown Islamic terrorist groups. Al Qaeda’s influence has spread across the geographical spectrum of Southeast Asia with wellentrenched and extensive networks.20 Many countries in the region – Malaysia, the Philippines and Thailand – featured prominently in Al Qaeda’s most ambitious plans, including the attack on USS Cole in October 2000 and the September 11 attacks, as now extensively catalogued by the report of the 9/11 Commission.21 The maritime environment of Southeast Asia is highly volatile. The peculiar geographical position of the region with strategic waterways – the Strait of Malacca, the Sunda Strait, the Lombok Strait and the Singapore Strait, to name a few – has made the region highly important from the perspective of global trade and commerce. Sea lanes and straits in the region share common characteristics; they are located within or astride geographic archipelagos, inhibited with large populations with less than ideal social, political and economic conditions.22 Narrow channels, shallow reefs and thousands of tiny islands that dot the archipelagic waters make it ideal for piracy and other waterborne crimes.23 The 1,000-kilometre-long Strait of Malacca is the busiest shipping lane in the world, which links the Indian Ocean to the South China Sea and the Pacific Ocean. About 50 per cent of the world’s large ships – oil tankers, container vessels and other bulk carriers – regularly transit the Strait of Malacca. Each day about 600 ships sail through the strait, carrying Asian products to Western markets and bringing raw materials to Asia. Half of Asia’s oil imports transit the Strait of Malacca. According to an estimate by the US Energy Information Administration (EIA), as the demand for energy in Asia, especially China grows, oil demand for these nations will increase from about 15.1 million barrels per day in 2002 to nearly 33.6 million barrels per day by 2025. The bulk of the additional supply would transit through the Strait of Malacca. According to an estimate by the US Energy Information Administration (EIA), as the demand for energy in Asia, especially in China grows, oil demand for these nations will increase from about 15.1 million barrels per day in 2002 to nearly 33.6 million barrels per day by 2025. The bulk of the additional supply would transit through the Strait of Malaccca.24 At the same time the region’s SLOCs with numerous critical ‘chokepoints’ have made it very vulnerable to disruption from terrorist attacks. The Phillips Channel in the Singapore Strait, which is only 1.5 miles wide at its narrowest point, is already a natural bottleneck.25 JI members, arrested by Singapore, revealed that detailed planning was made for a seaborne bomb attack using a small vessel against US ships travelling eastwards from Sembawang Wharf via

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Pulau Tekong in Singapore waters. ‘The markings on a topographical map recovered from the possession of group member Khalim identified a strategic “kill” zone where the channel was narrowest and where the ship would have had no room to avoid a collision with a suicide vessel.’26 Security experts fear that there could be attacks using small explosive-laden boats similar to the attack on USS Cole or Limburg. Alternatively, terrorists could scuttle large ships at this point that would force ships to sail much longer and more costly distances around Australia.27

Piracy in Southeast Asia: a threat or vulnerability? The perception about the maritime terrorist threat in the region is based not only on the increase in the number of piracy incidents in the waters of Southeast Asia, but also on the changing nature of the attacks in recent months. Southeast Asian waters have always ranked high in terms of reported piracy incidents. Out of a total of 2,375 piracy incidents worldwide between 1991 and 2001 reported to the ICC International Maritime Bureau, 1,567 (66 per cent) incidents occurred in the waters of Southeast Asia. Similarly, in 2002, 2003 and 2004, the number of reported incidents was the highest in Southeast Asia in comparison to the rest of the world. Most significantly, the nature of piracy attacks in Southeast Asia has also changed. Today’s pirates are not the romantic, swash-buckling characters of the movies, but highly trained guerrillas, rogue military units or former seafarers working for modern and technologically sophisticated crime and terror organizations. Armed with machetes, assault rifles, and grenade launchers, they steal out in speedboats in search of supertankers, cargo ships, passenger ferries, cruise ships, and yachts, attacking them at port, on the open seas, and in international waters.28 Recent attacks on vessels, especially in the Strait of Malacca, have been carried out with almost military precision using sophisticated weapons and techniques. The attacks are more violent, more frequent and more organized. In many cases such as with the chemical tanker Dewi Madrim in March 2003, pirates boarded, robbed and piloted the vessels for a period of time in the Strait of Malacca. According to Rohan Gunaratna, ‘it is possible that these could be rehearsals’.29 A number of tugboats and barges, which have been hijacked, remain unaccounted for. Many of the crews taken hostage are still missing. Evidence is mounting that terrorists may be having some hands-on ‘driver training’ by piloting the vessels themselves or getting the kidnapped crew to teach them how to Table 7.1 Year

Total worldwide piracy incidents

Incidents in Southeast Asia

Percentage of the total

2002 2003 2004

370 445 325

170 189 166

45% 42% 51%

Data based on IMO piracy reports

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master the navigation of large commercial vessels.30 Additionally, there were reports about terrorist groups such as ASG trying to acquire knowledge about diving and other underwater operations. An engineer kidnapped by the ASG from a holiday resort in Sabah in 2000 and released in June 2004, revealed how the group wanted instruction in diving.31 According to International Maritime Organization (IMO) Secretary-General Efthimios Mitropoulos ‘an up-trend in crew abductions could signal a move by terrorists to train themselves in operating and navigating large commercial vessels’.32 The hijacked tugboats and barges may be getting readied for use as floating bombs targeting other vessels, key installations, naval bases or port facilities. Tugboats and barges maneuvering among the bigger ships to load or unload cargo are a common sight in the straits. That would make them an ideal cover for acts of terrorism. Piracy could be a perfect mask for planning and preparing for maritime terrorism especially in a region where it has become a matter of common occurrence. Given the number and the nature of pirate attacks and the volatile political climate in the region, which is hospitable to terrorism, a convergence between piracy and terrorism in Southeast Asia cannot be ruled out. Nevertheless, no clear consensus about a direct nexus between the pirates and the terrorists in Southeast Asia has emerged so far. Peter Chalk of the RAND Corporation believes that a convergence between piracy and terrorism in Southeast Asia is a possibility given a ‘high incidence of piracy relative to the rest of the world’. Moreover, ‘the growing terrorist problem within the region provides the background conditions that are necessary for this convergence to take place’. Under these conditions, ‘pirates could “contract out” their services to hijack ships which could then be used to smuggle weapons and personnel or cause a collision to block shipping lanes in the Strait of Malacca – a plot consistent with Osama bin Laden’s economic warfare strategy against the Western capitalist system’.33 Others are sceptical about whether pirates would partner terrorists or vice versa for business and fundamentalist reasons respectively. Acts of piracy and terrorism are not interchangeable as their motives are different.34 ‘Although criminals and terrorists may operate in similar ways, terrorists aim to use their violence in pursuit of strategic objectives, and all too frequently, mass destruction.’35 It would thus be difficult to accept that the criminal entrepreneurs engaged in acts of piracy would be willing to team up with terrorists for acts of political violence. For the pirates this could be counterproductive for their profession. It may however be possible that terrorists could learn the tricks of the trade from the pirates to build up their capability in the maritime sector. Thus in Southeast Asia, piracy is more vulnerable now and can be exploited by the terrorists.

Terrorist groups with maritime terrorist capability The number of groups with a maritime terrorist capability is few. The best known are Provisional Irish Republican Army (PIRA), the LTTE, Al Qaeda, the Contras, the Palestinian Groups – Popular Front for the Liberation of Palestine (PFLP) and Hamas – the ASG, the Moro Islamic Liberation Front (MILF) in the Philippines

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and Gerakan Aceh Merdeka (GAM) in Indonesia. Of these, LTTE is the pioneer in maritime terrorism with a state-of-the-art maritime terrorist organization. LTTE has developed a maritime division, with some 3,000 personnel, between 100 and 200 surface and underwater vehicles, underwater demolition teams, marine engineering and boat-building capabilities, and a maritime school and academy. Its maritime tactics range from employment of land-based teams – trained to place improvised explosive devices (IED) on ships – to terrorist divers, attack craft, suicide craft and sea mines. Maritime terrorist technologies range from scuba, sea scooters and speedboats to dual-use technologies such as the Global Positioning Systems (GPS).36 Though LTTE does not operate outside Sri Lanka, it is known to have shared its maritime technologies, tactics and techniques with MILF and ASG. 37 In Southeast Asia, the groups that could use the maritime domain for terrorism include the MILF, ASG, GAM, Jemaah Islamiyah and Al Qaeda. However, the groups vary in terms of their intention and capabilities to stage maritime attacks. The ASG based on Basilan Island is known to have conducted attacks around the Sulu and Celebes Seas in the Southern Philippines, East Malaysia, and Indonesian Kalimantan. The group also conducts maritime weapon smuggling operations as far away as Sulawesi and Maluku in Indonesia;38 they are also considered a threat to the Timor Sea Joint Petroleum Development Area (JPDA) in the East Timor Sea. The ASG operates speedboats, mostly wooden crafts with minimal freeboard, multiple outboard engines, and shallow draft. The boats are stealthy, fast, and able to easily navigate reefs and swamps; many are armed with machine guns and are capable of outrunning the naval vessels. ASG is highly proficient in conducting brown (riverine) and green (coastal and archipelagic) water operations during both night and day; its blue water capability is limited. It lacks the maritime logistics necessary to sustain extended operations on high seas. ASG leader Nadzmi Sabdullah, ‘Commander Global’, planned many maritime operations including the kidnapping raids on Sipadan in 2000 and Palawan in 2001. Similarly, Galib Andang, ‘Commander Robot’, led the 2000 Sipadan maritime kidnapping raid. ASG also claimed responsibility for the bombing of Davao City port on 2 April 2003, which killed at least 16 people and injured 55.39 The explosion was apparently timed to maximize casualties at a time when the wharf was most busy with two passenger ships – Filipina Princess and Superferry 15 – boarding and discharging passengers. The bombing in the Superferry 14 in February 2004 was ASG’s maritime spectacular. The MILF is the largest and most capable rebel group in the Philippines. It is highly skilled at using IEDs with electronic detonators and has proven its ability to use these devices against maritime targets such as ports and ferries. MILF has contact with Indonesian Islamic groups such as JI and Wahdah Islamiyah by way of its maritime smuggling network. MILF is capable of brown (riverine) and green (coastal and archipelagic) water operations. It routinely uses maritime craft for logistics operations – smuggling people, supplies, and weapons – in these waters and has successfully conducted waterborne attacks on the Philippines military and police outposts. MILF’s blue water capability however is extremely

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limited. Although its forces are able to venture into the high seas beyond the Philippine–Indonesian archipelago under certain weather conditions, they lack the maritime logistics necessary to sustain extended operations. GAM or the Free Aceh Movement in Indonesia’s Aceh province is notorious for its maritime activities. It operates in the Strait of Malacca, the Singapore Strait, West Malaysia, Southern Thailand and Myanmar, and ventures into the Indian Ocean as far west as Sri Lanka. GAM is capable of brown (riverine) and green (coastal and archipelagic) water operations. Although GAM maritime craft can cross the high seas, they are not capable of blue water combat operations. GAM has extensive contacts with smuggling syndicates (narcotics, people, stolen goods, petroleum, and arms trafficking) and pirate gangs operating across the Strait of Malacca.40 It has sympathizers among ethnic-Acehnese in Penang, Malaysia and Islamic mariners in Southern Thailand, especially the ones belonging to the Pattani United Liberation Organization (PULO). In September 2001, in a statement to the Associated Press, GAM spokesman Tengku Ishak Daud asked all ships transiting the Strait of Malacca to request protection from GAM.41 It has also claimed credit for attacks on craft used to service offshore petroleum facilities.42 In addition, GAM has been accused of pirating international shipping in the Straits of Malacca.43 The accusation seemed to be supported by the drastic reduction in piracy in Indonesian waters after the tsunami of 26 December 2004.44 The tsunami severely damaged the coastal fishing villages, or kampongs, from which the attacks are launched. It is also possible that many members engaged in piracy have died.45 Although there is no consensus about the estimate or even the existence of Al Qaeda’s maritime fleet, the group’s intention as well as the capability to target maritime assets is well documented. When Al Qaeda’s chief of naval operations – Abdulrahim Mohammed Abda Al-Nashiri, nicknamed ‘Prince of the Sea’ – was arrested, a 180 page file listing ‘targets of opportunity’ was in his possession. The list, which contained plans to attack naval vessels and large cruise liners, reinforced concerns about plans for terrorist attacks against shipping. Al-Nashiri worked with Tawfiq bin Attash, known as Khallad, a principal planner of the USS Cole attack. Khallad attended the January 2000 Al Qaeda meeting in Malaysia in which plans for the September 11 attacks and attacks against USS Cole and other maritime targets including those in Southeast Asia were discussed.46 JI does not have a dedicated maritime organization. But it has used the maritime domain extensively, especially for sending its recruits from Indonesia for training in camps in the Philippines. JI also conducted covert surveillance of maritime assets in Singapore, including oil refinery facilities on Jurong Island and a US vessel at the Changi Naval Base.47 In recent months, increasing evidence of coordination among the terrorist groups in the region – between JI, ASG and MILF – are emerging. It was alleged that the attack on Superferry 14 in February 2004 was a joint operation involving JI, ASG and the Raja Sulaiman Movement – a group gaining increasing visibility in the region.48 Thus even though the maritime terrorist capabilities of both Al Qaeda and JI are limited and the groups have been rendered mostly incapable of attacks on their own, the threat to maritime assets from these groups remains because of

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continuing networking, training and transfer of technology among the groups. It is in this backdrop that Matthew Daley, the US Deputy Assistant Secretary of State, said in Singapore that ‘we have begun to focus on the potential for a disastrous maritime terrorist incident’.49

Regional response to threats in the maritime domain The ‘ungoverned littoral regions of Southeast Asia’, according to an assessment by the US Pacific Command, are fast becoming a ‘fertile ground for exploitation’ by transnational threats including piracy and terrorism.50 The increase in piracy related incidents in Southeast Asia prompted the IMO, the United Nation’s specialist maritime agency, to call for some form of international action as a ‘way forward’ to secure the critical sea lanes in this part of the world. As E. Mitropoulos put it, ‘the maintenance of unfettered navigation through the Malacca Strait and within South-east Asia has generated many stakeholders – more than just the littoral states themselves’.51 Unfortunately however, this has become a major source of dissention among the littoral states of Indonesia, Malaysia and Singapore. There is as yet no ‘sufficient common interest’ to work with major users of the strait that could bring better protection both from the pirates and the terrorists.52 A major portion of the Strait of Malacca is within the territorial waters of Singapore, Malaysia and Indonesia. While foreign vessels have unfettered use of the shipping lanes, the foreign governments whose ships use the lanes have no authority to patrol or interdict pirates on their own. Currently Indonesia and Malaysia share responsibility for the security of the sea lanes in the Strait of Malacca. Although Malaysia and Singapore have largely been effective in cracking down on pirates in the Southeast Asian waters, the same has not been the case with Indonesia due to the lack of capability of, and corruption in, the armed forces. Against this backdrop Admiral Thomas B. Fargo of the US Pacific Command suggested what he termed a ‘Regional Maritime Security Initiative’ (RMSI) to ‘facilitate information sharing and law enforcement activities among participating nations’ and to develop the ‘right kinds of immediately available, expeditionary forces’ to deal with crisis situations.53 Following up on his testimony before the US Congress, Admiral Fargo detailed the initiative as one concerned with increased situational awareness and information sharing, responsive decision making architectures, maritime interdiction capabilities, littoral security and interagency cooperation. Its goal, according to Admiral Fargo, was to ‘develop a partnership of willing regional countries to identify, monitor, and intercept transnational maritime threats under existing international and domestic laws.54 This proposal met with stiff resistance both from Indonesia and Malaysia. Both governments were upset with the news reports that the US planned to send its marines and Special Forces to combat terrorism in Southeast Asia and that Singapore was in talks with the US about organizing joint patrols in the Strait of Malacca. Both Malaysia and Indonesia emphasized that ‘ensuring security of the Strait of Malacca’ is their ‘sovereign responsibility’,55 that at present they are ‘working well to maintain security

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in the strait’ and consequently see no necessity for any outside intervention, the US included.56 Thus the security of the strait has become a politically sensitive issue, so much so that US Defence Secretary Donald Rumsfeld attending a conference in Singapore in June 2004 categorically denied any US plans for patrolling the sea lanes against the wishes of the littoral states concerned.57 Piracy in Southeast Asia has flourished under the ‘jurisdictional gray zones’ in the region. Lack of cooperation among the nations in the region has hampered anti-piracy operations, which is further complicated by the lack of trained maritime police, inadequate equipment and inexperience with complicated concepts of law enforcement such as the doctrine of hot pursuit. The countries in the region continue to be sensitive about norms of sovereignty and non-interference.58 The maritime police of one nation cannot pursue pirates into the territorial waters of another. Under current IMO regulations, merchantmen are forbidden to carry firearms for self-protection. Years of regional discussion have produced ‘plenty of nicety, courtesy’ but too little collective will to deal with sensitive security issues.59 In the ninth ASEAN Summit in Bali in October 2003, Indonesia introduced the concept of an ASC. In February 2004, Jakarta followed it up with the proposal to create an ASEAN Peacekeeping Force designed to resolve regional conflicts and maintain security in the ASEAN region. Ever since the Asian financial crisis, the credibility and effectiveness of ASEAN and the ‘ASEAN way’ has come under much scepticism which has ‘impeded cooperation in the region’. The ASC proposal seeks a framework to enable members to ‘work together on sensitive security issues’ with transborder implications consistent with the fundamental principles of ASEAN cooperation without the constraints of the principles of non-interference and nonintervention.60 Some of the members such as Singapore have reservations about the concept of a security community, arguing that ‘ASEAN is not a security or defense organization’,61 and have not endorsed the peacekeeping proposal yet.62 The use of private security firms such as Background Asia Risk Solutions to provide armed escort service to merchant shipping in the straits has evoked mixed responses from the littoral states.63 Thus a consensus for a framework of security in the Strait of Malacca still eludes the regional governments. The management of SLOC security is a complex matter and requires a holistic outlook and comprehensive responses.64 As the IMO Secretary-General put it, the success of any effort to secure the sea lanes ‘will need, as a sine qua non condition, the full consent, involvement and cooperation of the littoral states concerned’.65 To be effective, the littoral states must be prepared to take ownership of any security arrangement. This is tricky, given the fact that Indonesia is the least dependent of the three littoral states on seaborne international trade. Its political climate also remains highly volatile. It is ‘fiercely protective over any perceived challenge to its sovereignty’,66 There is fierce domestic opposition, as evidenced from the report that groups such as Majelis Mujahidin Indonesia (MMI) offered help to the Indonesian navy to drive out the American fleet being sent to the Malacca Strait.67 Malaysia thinks that a foreign military presence would set it back in its ‘ideological battle against extremism and militancy’.68 Recently Australia, Britain,

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Malaysia, New Zealand and Singapore decided to expand the scope of Five Power Defence Agreement (FPDA) to incorporate ‘non-conventional threat scenarios such as maritime security’ and to conduct anti-hijack, training and surveillance exercises in the Strait of Malacca.69 This could be a good start but it could also be ineffective, as it does not include Indonesia. Malaysia however has become receptive to expanding cooperation with the US and others in terms of acquiring and sharing quality intelligence under the RMSI initiative.70 Kuala Lumpur’s readiness to work together with the US was reiterated with the renewal of its defence pact with Washington in May 2005.71 Indonesia is also holding joint exercises with US Navy Seals practicing anti-terrorism drills, including boarding ships and battling pirates.72 With ‘points of convergence of interest’ gradually emerging, the use of Article 43 of the 1982 UN Convention on the Law of the Sea, as put forth by Singapore Ambassador-at-Large, Professor Tommy Koh, as a possible legal basis for improving security in the straits holds much promise. Washington however is not a signatory to the convention yet. But as Ambassador Koh hoped, ‘were the US to become party to that convention, then we will have a common legal framework for cooperation between littoral states and user states’.73 Revisions of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) to include creating additional offences in the light of the war on terror, conferring the right of a state to board vessels on the high seas when they are suspected on reasonable grounds of carrying terrorist personnel or materials could be one of the most important steps to establish international legal regimes to deal with evolving threats in the maritime domain.74 In Southeast Asia no single country has the resources to deal effectively with piracy or threats from terrorism. It is in this context that the Asian Shipowners Forum strongly urged the governments of the littoral states to put aside jurisdictional concerns and urgently conclude and implement multilateral cooperation agreements and, if necessary, seek international assistance.75 Though the primary responsibility for the safety and security of the SLOCs remain with the littoral states, other stakeholders such as the user states, shipping community and international organizations such as the IMO need to cooperate and contribute to the security efforts based on consultation and within the bounds of international law.76 Coordinated naval patrols by Indonesia, Malaysia and Singapore, and initiatives such as the Regional Cooperation Agreement on Anti-Piracy in Asia are indicative of increasing levels of cooperation among the states to secure the seas against both piracy and terrorism.77 But much remains to be done. The emergence of new security challenges tests the limits of existing international norms. In this context, old concepts of sovereignty and jurisdiction need to accommodate cooperative arrangements to combat terrorism, including maritime terrorism.78 Along with implementing measures to secure the seas, it is also essential for the governments to work together to degrade the land capabilities of the terror groups. In the context of the emerging challenge from low intensity maritime operations (LIMO) capabilities of non-state actors, maritime counter-terrorism operations would have to focus on ‘securing the littoral’. The

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failure to deal with the piracy problem in the Southeast Asian seas, and to prepare to prevent any possible terrorists’ ‘maritime spectacular’ could have grave implications for the political and economic stability in the region.

Notes 1 See M. Richardson, A Time Bomb for Global Trade: Maritime-Related Terrorism in an Age of Weapons of Mass Destruction, Singapore: Institute of Southeast Asian Studies, 2004. 2 M. MacBain, ‘Will terrorism go to sea?’ Sea Power, vol. 23, no. 1, January 1980, pp. 15–24; Brigadier B. A. H. Parritt, (ed.) Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism, Paris: ICC Publishing S.A., 1986; and H. W. Stevens, ‘Maritime security in the United States: latent threats and latent vulnerabilities’, Terrorism & Political Violence, vol. 2, no. 4, 1990, pp. 554–74. 3 P. Chalk, ‘Threats to the maritime environment: piracy and terrorism’, RAND Stakeholder Consultation, Ispra, Italy, 28–30 October 2002, p. 9. 4 J. D. Simon, The Implications of the Achille Lauro Hijacking for the Maritime Community, Santa Monica, CA: RAND Corporation, August 1986, p. 4. 5 B. M. Jenkins, B. Cordes, K. Gardela-Treverton and G. Petty, A Chronology of Terrorist Attacks and Other Criminal Actions Against Maritime Targets, Santa Monica, CA: RAND Corporation, September 1983, p. 4. 6 P. Wilkinson, ‘Terrorism and the maritime environment’, in Parritt (ed.) Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism, p. 34. 7 Chalk, ‘Threats to the maritime environment’, p. 9. 8 T. Campbell and R. Gunaratna, ‘Maritime terrorism, piracy and crime’, in R. Gunaratna (ed.) Terrorism in the Asia-Pacific, Singapore: Eastern Universities Press, 2003, pp. 77–80. 9 ‘Terror threats to supply chain might slam global economies’, The Wall Street Journal, 11 March 2003. 10 Chalk, ‘Threats to the maritime environment’, p. 2. 11 R. Gunaratna, cited in ‘Terrorists may be rehearsing at sea’, The Straits Times, 19 April 2004. 12 ‘World’s ports fear attack by floating bomb’, The Times, 27 April 2004. 13 T. R. Shie, ‘Ports in a storm? The nexus between counterterrorism, counterproliferation, and maritime security in Southeast Asia’, Issues & Insights, vol. 4, no. 4, Pacific Forum CSIS Honolulu, Hawaii, July 2004, p. 9. 14 F. Cilluffo, ‘Threat posed from the convergence of organized crime, drug trafficking, and terrorism’, Congressional Testimony Before the U.S. House Committee on the Judiciary’s Subcommittee on Crime, 13 December 2000. Available online at: < http://www.csis.org/hill/ts001213cilluffo.html> (accessed 18 May 2005). 15 See A. al Zawarhi, ‘The knights under the prophets banner – meditations on the Jihadist movement’, London Al-Sharq al-Awsat, 2 December 2001. 16 ‘Bin Laden still alive’, The Tribune, 11 July 2002. Available online at: (accessed 20 May 2005). 17 Cited in ‘Terror threats to supply chain might slam global economies’. 18 Cited in ‘Homeland Security Report’, Homeland Security Group, no. 137, 14 June 2004. Available online at: (accessed 19 May 2005). 19 J. Gershman, ‘Is Southeast Asia the second front?’ Foreign Affairs, vol. 4, no. 79, July/August 2002, 60–74.

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R. Gunaratna, Inside Al Qaeda: Global Network of Terror, New York: Columbia University Press, 2002, p.175. See The 9–11 Commission Report, Final Report of the National Commission on Terrorist Attacks Upon the United States, Official Government Edition, US Government Printing Office, Washington, DC, 2004. Vice-Admiral M. Roy, ‘Sea lanes of communication, an Indian perspective’, in Andrew Forbes (ed.) The Strategic importance of Seaborne Trade and Shipping, Papers in Australian Maritime Affairs, no.10, Royal Australian Sea Power Centre, 2003, p. 88. ‘The Malacca Straits’, Steve’s Vital Maritime Canals. Available online at: (accessed 17 May 2005). ‘Conference summary, salient issues and key recommendations’, Mima conference on ‘The Strait of Malacca: Building a Comprehensive Security Environment’, 14 October 2004. Available online at: (accessed 19 May 2005). ‘World oil transit chokepoints’, EIA Country Analysis Briefs, April 2004. Available online at: (accessed 26 May 2005). ‘Keynote address of Professor S. Jayakumar, Deputy Prime Minister and Law Minister of the Republic of Singapore’, at the 2005 conference on Law of the Sea: Issues in the East and South China Seas, held in Xiamen, 12 March 2005, reproduced in ‘Law of the Sea has to keep up with terrorism threats, The Straits Times , 16 March 2005. R. Halloran, ‘What if Asia’s pirates and terrorists joined hands?’ South China Morning Post, 17 May 2003. See J. S. Burnett, Dangerous Waters: Modern Piracy and Terror on the High Seas, USA: Penguin, 2002. Cited in ‘Terrorists may be rehearsing at sea’, The Straits Times, 19 April 2004. ‘Rise in crew kidnappings may signal terror training’, The Business Times, 2 April 2004. ‘Terror threat swells at sea’, WorldNetDaily, 8 June 2004. ‘Terrorists may be learning to navigate ships from abducted crew’, Agence France Presse, 25 May 2004. ‘Terrorists Could Join Forces with Pirates in Malacca Strait’, Agence France Presse, 30 April 2004. See A. J. Young and M. J. Valencia, ‘Conflation of piracy and terrorism in Southeast Asia: rectitude and utility’, Contemporary Southeast Asia, vol. 25, no. 2, 2003, 269–83. E. Mitropoulos, Secretary-General of IMO, cited in ‘Terrorists may be learning to navigate ships from abducted crew’. R. Gunaratna, ‘The asymmetric threat from maritime terrorism’, Jane’s Navy International, vol. 106, no. 8, October 2001, 24–9. B. Desker and K. Ramakrishna, ‘Forging an Indirect strategy in Southeast Asia’, The Washington Quarterly, vol. 25, no. 2, Spring 2002, p. 165. ‘Abu Sayyaf Group primer’, Pacific Command Virtual Information Center, 27 September 2001. ‘Abu Sayyaf owns Davao airport blast’, Sun-Star Network, 5 March 2003. Available online at: (accessed 19 October 2006). ‘Eye of the storm’, TimeAsia.com, 11 February 2002. Available online at: (accessed 26 May 2005). ‘Indonesian rebels threaten straits’, Associated Press, 2 September 2001. For example, see ‘Gunmen abduct nine Indonesians from boat in Aceh’, Reuters Newswire, 1 July 2002. K. McGowan, ‘Aceh rebels blamed for piracy’, BBC News Online, 8 Sept 2003. Available online at: (accessed 26 July 2004).

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B. Desker, ‘Protecting the Malacca Straits’, IDSS Commentaries, (10/2005), 3 March 2005. P. Mukundan, Director of the International Maritime Bureau, cited in J. S. Burnett, ‘The next 9/11 could happen at sea’, The New York Times, 22 February 2005. See The 9–11 Commission Report, Final Report of the National Commission on Terrorist Attacks Upon the United States, Official Government Edition, Washington, DC: US Government Printing Office, 2004, pp. 12–13, 130, 132, 148. ‘Singapore and their Targets’, The Straits Times, 19 September 2002. J. Hookway, ‘A dangerous new alliance’, Far Eastern Economic Review, 6 May 2004. Cited in ‘Asia must guard its seas from terrorists’, The Straits Times, 23 April 2004. ‘Malaysia doesn’t want outside help to patrol Malacca Straits’, Associated Press Worldstream, 8 April 2004. ‘Terror-piracy nexus: IMO seeks global action’, The Business Times, 21 May 2004. M. Richardson, ‘How to protect the Malacca Straits from terrorists’, The Straits Times, 28 April 2004. Testimony of Admiral T. B. Fargo, Commander, US Pacific Command, before the House Armed Services Committee, United States House of Representatives Regarding US Pacific Command Posture, 31 March 2004. Available online at: http://www.house.gov/hasc/openingstatementsandpressreleases/108thcongress/04–0 3–31fargo.html (accessed 22 May 2005). Admiral T. Fargo, ‘Military operations and law conference’, Victoria, British Columbia, US Pacific Command, 3 May 2004. Available online at: (accessed 22 May 2005). ‘Malaysia rebuffs US sea force plan’, The Age, 6 April 2004. Available online at: (accessed 23 May 2005). ‘Indonesia joins Malaysia in shunning US help in Malacca Straits’, Associated Press Worldstream, 12 April 2004. ‘Officials clarify maritime initiative amid controversy’, American Forces Press Service, 4 June 2004. Available online at: http://www.defenselink. mil/news/Jun2004/n06042004_200406048.html (accessed 23 May 2005). Malaysia, for instance, while recognizing the need for shared responsibilities, reiterated that this ‘must not be at the expense of the sovereignty and territorial integrity of the littoral states’. See ‘Malaysia will cooperate on Malacca Straits security’, Agence France Presse, 8 June 2004. Available online at: (accessed 24 May 2005). D. Urquhart, ‘Malacca Straits needs US support’, The Business Times, 10 April 2004. L. C. Sebastian and J. I. Chong, ‘Towards an ASEAN Security Community at Bali’, Perspectives, Institute of Defence and Strategic Studies, October 2003. ‘ASEAN makes good progress on security community proposals’, Association of Southeast Asian Nations, 5 April 2004. Available online at: (accessed 30 May 2005). ‘Singapore’s view is that for the time being the peacekeeping force idea is probably not the right time now, precisely because ASEAN is not a security or defense organization’, Singapore’s Foreign Minister S Jayakumar, cited in Daily Times, 3 May 2004. Available online at: (accessed 23 May 2005). ‘Malaysia furor fails to deter Malacca escort security firm’, Lloyd’s List, 4 May 2005. ‘Conference summary, salient issues and key recommendations’, Mima conference on ‘The Strait Of Malacca: Building a Comprehensive Security Environment’, 14 October 2004. Available online at: (accessed 30 May 2005). ‘Terror-piracy nexus: IMO seeks global action’, The Business Times, 21 May 2004. D. Urquhart, ‘Malacca Straits needs US support’.

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‘The US troops and their allies are entering Indonesian waters without permission and we, together with the Indonesian navy, will be ready to drive them out until the last drop of blood is spilled’, MMI Director of Data and Information Fauzan Al-Anshari, cited in ‘Militant group says ready to help “drive out” US fleet from Malacca Strait’, BBC News, 21 May 2004. ‘KL open to talks on maritime security plan’, The Straits Times, 7 June 2004. ‘5 Powers to focus on training to combat maritime terrorism’, Japan Economic Newswire, 7 June 2004. ‘Malaysia pledges to wipe out maritime piracy, work with US against terror’, Agence France Presse, 7 June 2004. ‘Malaysia and US renew defense pact, discuss Malacca Strait security’, Channel News Asia, 9 May 2005. ‘Malaysia and US Renew Defense Pact, Discuss Malacca Strait Security’, Channel News Asia, 9 May 2005, Available online at: (accessed 25 October 2006) ‘US Navy SEALs in Indonesia Anti-terrorism Drill’, Jakarta Post, 9 May 2005. Available online at: (accessed 25 October 2006) ‘KL open to talks on maritime security plan’, The Straits Times, 7 June 2004. ‘Terrorism and wrecks dominate talks: the latest session of the IMO Legal Committee’, Lloyd’s List, 18 May 2005. ‘Asian nations told to unite in piracy fight’, Lloyd’s List, 11 May 2005. ‘Mindef states its stand on straits safety’, The Straits Times, 2 May 2005. ‘Cooperation vital for maritime security,’ The Straits Times, 13 March 2005. ‘Need to update legal regimes’, The Straits Times, 14 March 2005.

PART III

Responses

8

Building good order at sea in Southeast Asia The promise of international regimes Sam Bateman

The challenge of regional regimes There is an old adage of international environmental management: ‘Think globally, act regionally and nationally’. This applies as much with maritime security and good order at sea as with most other areas of international regime building. The global thinking on maritime security has largely been done and translated into numerous international regimes. The international community generally knows what is required to ensure the safety and security of shipping and seaborne trade. The challenge now is to apply the international regimes at the regional and national levels. This is proving problematic in some parts of the world, including Southeast Asia, where countries have conflicting national priorities and most lack the capacity to implement international regimes effectively and provide maritime security in waters under national jurisdiction. As a consequence, we still lack good order at sea in Southeast Asia. This is manifest in the concerns increasingly expressed by non-regional countries about the level of piracy and armed attacks against ships in the region, as well as in the recognized potential for acts of maritime terrorism. The late Professor M. Leifer is well known for his work on Southeast Asian regionalism and the importance of a balance of power necessary to uphold regional order.1 However, he also wrote an important paper on the importance of maritime regime building in East Asia.2 This paper promoted the ideal of a stable maritime regime in the region with the free and uninterrupted flow of seaborne trade and nations able to pursue their maritime interests and manage their marine resources in accordance with agreed principles of international law and without the risks of tension and conflict. Unfortunately we are still far from the ideal of Leifer’s stable maritime regime in Southeast Asia. The region lacks good order at sea with overlapping claims to maritime jurisdiction, uncertain maritime boundaries, differing interpretations of the law of the sea and a lack of widespread participation in key international maritime regimes. This situation complicates maritime enforcement, leads to unchecked degradation of the marine environment and facilitates illegal activities at sea, including possible maritime terrorism. Furthermore, bilateral sensitivities inhibit cooperation between maritime security forces of neighbouring countries, and there is a lack of established arrangements for cooperation both between

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neighbouring countries and between coastal states and the so-called ‘user’ states whose ships and trade pass through regional waters. Generally the region lacks the capacity to provide for the safety and security of shipping and seaborne trade, and to maintain law and order at sea.

Maritime regimes International regimes are encountered throughout maritime and security studies. This is true of all areas of human activity where no single decision-making entity holds exclusive power.3 It is the nature of the maritime domain that the rights and duties of states invariably involve compromises. The oceans and seas of the world are the great ‘global commons’ where a careful balance is necessary between different uses of the sea, as well as between the interests of different parties. This is true both of the high seas and the roughly one-third of the world’s oceans that are now enclosed as exclusive economic zones (EEZs). The EEZ regime itself reflects a similar careful balance between the rights and duties of the coastal state on the one hand, and the rights and duties of user states on the other.4 It is difficult for countries to take a truly independent national view of the problems, which can arise with using the sea. Fences cannot be established in the sea in the same way as border fences are established on land. The sea is a common asset – and potentially a common enemy. It is the fundamental medium of international commerce, but its problems follow no national boundaries. For example, the freedom and safety of navigation, the prevention of marine pollution, the conservation of fish stocks, and the mitigation of maritime natural hazards (such as cyclones and tsunamis) are issues of concern to most countries. In implementing policies on these issues, countries must take into account the interests and rights of their neighbours, as well as those of other nations who legitimately send their ships into and through waters under national sovereignty. The principles and norms of cooperation in managing joint interests need to be institutionalized in the form of a regime for dealing with a particular issue area.5 Regimes provide benefits and reduce costs in a way that no single state party acting on its own could achieve.6 They involve compromises and reduce the risks of ‘a tragedy of the commons’, where in the short term, individuals might gain but in the long term, everyone loses. However, countries have to recognize the benefits and costs of regime participation. They will also apply weightings to the cost and benefits with longer-term benefits often being devalued in comparison with shorter-term costs. For example, some Southeast Asian countries appear concerned that participation in some maritime security regimes might involve a loss of sovereignty and independence, and this outweighs whatever might be the longer-term benefits of regime participation. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) itself is an international regime but there are a host of other maritime regimes for shipping, fishing, seabed mining, marine environmental protection, sea dumping, the prevention of ship-sourced pollution, search and rescue, and so on. Historically it may have been possible to speak of a single regime for the oceans, or more correctly the

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high seas.7 The classical regime of the oceans was simple with sovereignty of the coastal state extending over a narrow territorial sea beyond which were the high seas, where the freedoms of the high seas applied. Navigation and fishing were the two traditional uses of the seas and regimes to cover them were technical (e.g. rules for the prevention of collisions at sea in the case of navigation) and relatively straightforward. However, contemporary users of the seas face a variety of complex rules, norms, principles and decision-making procedures, which when put together in a particular issue area (e.g. maritime security or maritime safety), form an international regime. The extent of international regulation of the oceans and seas has increased dramatically in recent decades. These new regimes have involved the development of much international law and the establishment of a variety of international organizations.8 While these regimes may reflect thinking at the global level, they invariably require implementation at a regional and national level to be effective. Apart from UNCLOS itself, the main maritime regimes, which are the concern of this paper, are those provided for maritime security by the International Maritime Organization (IMO), particularly the International Ship and Port Facility Security (ISPS) Code, other amendments to the 1974 Safety of Life at Sea (SOLAS) Convention,9 and proposed amendments to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) and its Protocol covering offshore facilities; and for maritime safety through both SOLAS and the 1979 Convention on Maritime Search and Rescue (SAR Convention).10 All these conventions place a significant premium on cooperation for their successful implementation. There is a close relationship between maritime safety and maritime security. While a distinction between the two meanings is apparent in English, in some languages they are almost synonymous.11 In the past it was normal in the shipping sector to make a distinction between safety and security. The SOLAS Convention, for example, related to safety at sea while the SUA Convention related to security at sea. However, this has all changed following 9/11 and safety and security have now become ‘inextricably linked’.12 Chapter XI of the SOLAS Convention has been re-titled ‘Special measures to enhance maritime safety and security’, and Part II of this chapter in the Convention is entitled ‘Special measures to enhance maritime security’. Even the IMO has changed its motto from ‘safer ships, cleaner oceans’ to ‘safe, secure and efficient shipping on clean oceans’ to reflect this new emphasis. The operational measures to provide security at sea invariably have the collateral benefit of also providing for safety at sea.

UNCLOS All regimes for law and order at sea are based on the framework provided by UNCLOS. This large and complex convention provides the constitution for the oceans and the basis for the types of jurisdiction that a country may exercise at sea in its various roles as a coastal, port or flag state. It sets out the rights and duties of a state with regard to the various uses of the oceans and prescribes the regime of maritime zones that establish the nature of state sovereignty and sovereign

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rights over ocean space and resources. UNCLOS also provides the principles and norms for navigational rights and freedoms, flag state responsibility, countering piracy, rights of visit, hot pursuit and regional cooperation, all of which are relevant to the maintenance of security and good order at sea. UNCLOS now has a great many state parties but its effectiveness is still open to question in a number of areas. Many examples can be found of apparent noncompliance with UNCLOS. These include the uses and abuses of straight territorial sea baselines, a reluctance to acknowledge the rights and duties of other states in the EEZ, and the failure of flag states to observe the ‘genuine link’ requirement in UNCLOS Article 91 and to fulfil their duties as flag states under Article 94. The general problem of countries in the Asia-Pacific acting inconsistently with UNCLOS has been described as follows: For those member countries of CSCAP which are now parties to the UNCLOS, several of them have enacted maritime legislation and made maritime claims to sovereignty, sovereign rights or jurisdiction over ocean areas in the Asia-Pacific region, that are considered inconsistent with the terms of the UNCLOS. These conflicting/overlapping/excessive maritime claims have the potential to retard or block the process of building an ocean governance regime for the Asia-Pacific region. They also have the potential to disrupt regional stability and peace.13 UNCLOS has some serious limitations as the foundation for a regional maritime security regime for East Asia. In part these are a consequence of the relatively complex maritime geography of the region with its numerous islands, archipelagos and narrow shipping channels. However, the limitations also flow from the complexity of UNCLOS itself, its numerous ‘built in’ ambiguities, and the pace of development of the law of the sea. These factors reflect generalized global considerations rather than the peculiarities and requirements of particular regions of the world, and with Europe in the lead on environmental issues in particular, there is a trend for aspects of the international law of the sea to be interpreted in a regional context. But countries in East Asia exhibit many varying perspectives of key areas of the law of the sea and no clear regional view is evident. It also remains a matter of concern that the United States and Thailand are still not parties to UNCLOS, and perhaps the US is becoming even further away from ratification. It is a major limitation of UNCLOS as a foundation for a regional maritime security regime that the US remains outside the Convention. The main problem the US had initially with ratification was the attitude of the powerful mining lobby in the US to Part XI of UNCLOS dealing with deep seabed mining. More recently, however, the concern has shifted to the security environment with perceptions that ratification of UNCLOS could inhibit maritime operations by forces of the US.14 UNCLOS was formulated in a period when there was less concern for the health of the marine environment than there is at present. Norms and principles for the preservation and protection of the marine environment have multiplied exponentially over the last twenty years or so. It is not surprising therefore that many of

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the apparent ‘gaps’ in UNCLOS arise in the area of environmental protection. The navigational regimes in UNCLOS provide an example of the underdeveloped level of concern for the marine environment evident in the 1970s. The regimes of straits transit passage and archipelagic sea lanes (ASL) passage apply to ‘all ships and aircraft’ and there is no direct right of the coastal or archipelagic state to prevent the passage of a vessel that might be perceived to be a serious threat to the marine environment. Legal scholars have pursued this issue extensively over the years but so far there is not a satisfactory resolution of the issue. Territorial sea baselines Despite the old adage that ‘good fences make good neighbours’,15 sometimes it is physically impossible, for a variety of reasons, to build good fences, particularly in the sea. This is the case in East Asia mainly because the geography of the region, with its concave areas of coast, numerous islands and longstanding historic claims, means that many boundaries, or at least their end points or turning points, will require the agreement of three, or even more, countries. However, it is also due to the liberal interpretations by regional countries of the principles in UNCLOS for drawing straight territorial sea baselines. Territorial sea baselines are the start-point from which all maritime zones are measured. Unfortunately, there is scope for countries to declare ‘excessive’ baselines that have the effect of extending their claimed maritime jurisdiction. Territorial sea baselines may be either normal or straight. Normal baselines are less controversial under international law.16 They are simply the low-water line directly corresponding to the coastline marked on large-scale charts officially recognized by the coastal state.17 These baselines are the starting point for establishing a state’s jurisdiction over maritime jurisdictional zones. They close off internal waters of the coastal state concerned and provide the inner limit of the offshore zones (i.e. territorial sea, contiguous zone, EEZ and continental shelf). In turn, they establish the outer limit of these zones. It follows that if states can shift baselines further out to sea, the area of the offshore zones will be automatically extended without altering the maximum width of these zones as allowed under international law. Territorial sea straight baselines are not to be confused with archipelagic baselines that are subject to the different rules. UNCLOS Article 7 establishes three criteria for drawing straight baselines.18 First, they should only be used in localities ‘where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity’.19 Second, ‘[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently linked to the land domain to be subject to the regime of internal waters’.20 Third, ‘account must be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage’.21 These seemingly strict criteria are interpreted very loosely or even ignored in the practice of states,22 particularly so in East Asia. Scovazzi has suggested that there

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is a customary trend towards flexible and liberal criteria in drawing straight baselines and that the US is the only country resisting this trend,23 but this has been strongly disputed by Roach.24 Coastal states have a powerful incentive to make maximum use of straight baselines as it enables them to maximize the extent of their maritime jurisdiction. It may also be advantageous in maritime boundary delimitation.25 As Prescott has explained: It seems probable that the unjustified use of straight lines is primarily designed to increase the width of the combined zone of internal and territorial waters for security purposes. States may also use such lines to gain an advantage in negotiating common boundaries with neighbouring states.26 Almost all East Asian countries (i.e. Cambodia, China, Japan, Malaysia, Myanmar, North Korea, the Philippines, South Korea, Thailand and Vietnam) have used a straight baseline system. In most cases, the use of straight baselines has been controversial and judged by the US, in particular, to be ‘excessive’, and thus subject to diplomatic protest, as well as the operational assertion of navigational rights by US ships under the Freedom of Navigation (FON) programme. Generally the use of straight baselines in the region confirms the view expressed by Prescott in that the concept of straight baselines has been distorted beyond recognition by increasingly liberal interpretations of the key criteria in UNCLOS Article 7.27 Maritime zones Prior to UNCLOS, the only maritime zones recognized under international law were internal waters, territorial sea, contiguous zone, continental shelf and the high seas. UNCLOS further defined the regimes for these zones, including rules for determining the territorial sea baselines from which all maritime zones are measured, and introduced two new types of zone: the EEZ and archipelagic waters. In the EEZ, coastal states have sovereign rights over natural resources, both living and non-living, and other economic activities, such as the production of energy from water current and winds. They also have jurisdiction with regard to the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment and its resources (including the conservation of species). All other states have freedom of navigation and overflight in the EEZ, as well as the freedom to lay submarine cables and pipelines. The EEZ regime is problematic because jurisdictional aspects of the regime are either uncertain or not universally accepted, and because it requires countries to delimit new maritime boundaries with each other – in many instances where sovereign interests had not previously overlapped. Some countries, including ones in Southeast Asia, have claims to restrict certain activities in the EEZ, particularly military activities and surveys, which are not agreed by others. The provisions for

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these activities were intentionally left ambiguous in UNCLOS due to the impossibility of achieving agreement on the balance of interests between user states and coastal states. It is not surprising, therefore that disputes involving these issues are occurring more frequently, including in Southeast Asian waters. The regime of the archipelagic state is of great importance in Southeast Asia as the two largest and most important archipelagic states in the world, Indonesia and the Philippines, are in Southeast Asia. UNCLOS Articles 46 and 47 set out the main criteria that should be met before a country can claim the status of an archipelagic state.28 If these criteria are met, the archipelagic state may draw archipelagic baselines around the outer limits of the islands and drying reefs comprising the archipelago. Waters within those baselines are archipelagic waters over which the archipelagic state exercises full sovereignty not unlike the sovereignty exercised by all coastal states over internal waters and the territorial sea. Navigational rights and freedoms Innocent passage was the only passage regime that existed prior to UNCLOS but the extension of the width of the territorial sea and acceptance of the regime of the archipelagic state led to two new regimes being introduced: transit passage through straits used for international navigation, and ASL passage through archipelagic waters. Innocent passage applying to the territorial sea and to archipelagic waters outside of ASLs is the most restrictive of these passage regimes. It may be suspended by the coastal state; restricts ships from a range of activities, including exercises and operating aircraft; and requires submarines to travel on the surface and show their flag.29 Transit and ASL passage are much more liberal regimes that include overflight and cannot be suspended by a coastal state. They provide maximum rights to ships and aircraft to travel in their normal modes (e.g. submarines may transit submerged). These reflect the consideration implicit in these regimes that the international community should continue to enjoy the same rights and freedoms as before the extension of the territorial sea to 12 nautical miles and agreement on the regime of the archipelagic state. Archipelagic states and coastal states adjoining a strait used for international navigation have considerable service responsibilities towards the vessels passing their shores (e.g. navigational aids, hydrographic charts and other navigational information, search and rescue services, and marine pollution contingency arrangements). Furthermore, it is now generally accepted that this responsibility extends to the provision of security against the threats of piracy and maritime terrorism. However, UNCLOS makes no provision whatsoever regarding any form of cost-recovery for these services and the imposition of a fee for service would amount to denying, hampering or impairing the right of transit or ASL passage, and thus contrary to UNCLOS Article 42(2). UNCLOS Article 43 addresses this issue of burden sharing in respect of straits used for international navigation but not for ASLs. This article provides a regime for ‘burden sharing’ between user states and states bordering a strait on the provision of navigational and safety aids and the prevention of marine pollution. In the

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case of the Malacca Strait, so far it has only been Japan that has contributed to the costs of safety and security in the strait, although there have been recent indications that China may also be prepared to do so. A Malaysian maritime expert has suggested that China, Hong Kong, Liberia, the Philippines, South Korea, Taiwan and Thailand should all contribute to the costs although there would be a problem of devising a mechanism for cost-recovery.30 A basic question is whether the contribution should come from the governments or the shipowners. Considerations of ‘burden sharing’ were on the agenda on the high level conference on safety and security in the Malacca Straits that was held in Jakarta in September 2005. Flag state responsibilities UNCLOS Article 91 requires that every state shall fix conditions for the right to fly its flag, and there must be a ‘genuine link’ between the state and the ship. However, ships flying a ‘flag of convenience’31 will rarely have such a link with the flag state, and the relevant ship registry may not even be in the country concerned. Cambodia and Myanmar are Southeast Asian countries that have been declared ‘flag of convenience’ countries by the International Transport Workers’ Federation.32 UNCLOS Article 94 requires that flag states should effectively exercise their jurisdiction and control in administrative, technical and social matters over ships flying their flag. However, much of the breakdown in law and order at sea can be traced to the fact that some flag states are not discharging their responsibilities in accordance with this article when ships flying their flag commit offences at sea. This is the case for virtually all categories of maritime crime, but particularly illegal fishing, drug and arms trafficking, offences against the environment and human smuggling. Vessels committing these crimes usually are registered ships under the jurisdiction of a flag state rather than vessels without nationality. Piracy UNCLOS includes a specific regime for countering piracy on the high seas in its Articles 100–107. These extend to the EEZs of coastal states by application of UNCLOS Article 58(2). However, this regime does not apply in circumstances where the act of armed robbery or seizure of a vessel is within the sole jurisdiction of one state or another. This is the case where the act occurs within the territorial sea, archipelagic waters or internal waters (where these zones are as defined in UNCLOS), or when the act is committed by persons who are already onboard the ships as passengers, crew members or stowaways. In the former situation, the act is within the sole jurisdiction of the relevant coastal state, while the latter circumstances are within the jurisdiction of the flag state of the vessel affected. Similar considerations apply to acts of terrorism under current international law.

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Rights of visit UNCLOS Article 110 identifies the circumstances when a foreign flag vessel can be stopped on the high seas, i.e. if the flag state gives its permission, if the ship is stateless, if it is a pirate ship, if it is transporting slaves, or if it is being used for unauthorized broadcasting. Outside of these circumstances, there is no legal justification for stopping a ship on the high seas, or in the EEZ if the vessel is not suspected of an offence covered by the rights and duties of a coastal state in its EEZ (i.e. for a resource-related or environmental offence). However, it has been an objective of the US in the context of the Proliferation Security Initiative (PSI) and amendments to the SUA convention to broaden the circumstances in which a ship may be stopped on the high seas or in an EEZ to include if it is suspected of terrorism or carrying weapons of mass destruction (WMD), their delivery systems or related materials. Hot pursuit UNCLOS Article 111 sets out the regime for hot pursuit. Hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal state have good reason to believe that the ship has violated the laws and regulations of that state. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing state, and may only be continued if the pursuit has not been interrupted.33 The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state. However, in the context of pursuing a pirate or terrorist vessel, consideration has been given to the concept of ‘reverse’ hot pursuit that would allow such a vessel to be pursued into the territorial sea of a coastal state. Malaysia is currently discussing the possibility of reverse hot pursuit agreements with Indonesia and the Philippines to allow their navies and coast guards to pursue pirates into each other’s waters.34 This would be a welcome development that would enhance the fight against terrorism, piracy and armed attacks against ships. Regional cooperation International and regional cooperation are common themes in UNCLOS, as well as in other regimes for maritime safety and security. Part IX of UNCLOS deals with the situation of enclosed and semi-enclosed seas. It places a particularly strong responsibility on states bordering such seas to cooperate with each other in the exercise of their rights and duties. This regime is of importance to Southeast Asia because the main seas in the region (i.e. the Andaman Sea, the Gulf of Thailand, the South China Sea, and the Sulu Sea) all fall within the category of a semi-enclosed sea.

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Greater cooperation between regional countries would markedly improve law and order at sea in the region. It would assist in overcoming the capacity shortfalls in some countries and assist in establishing an environment where the countries that are more advanced with their maritime security arrangements set a lead for the less well advanced ones. Yet despite these benefits, regional maritime security cooperation remains underdeveloped in the region.35 While UNCLOS exhorts regional countries to cooperate, there is also a paradox. The convention permits the extension of maritime space under some form of national jurisdiction, particularly through the introduction of the EEZ. Thus it supports and actually encourages nationalistic approaches to managing the maritime domain. However, such approaches inhibit the development of cooperation and effective international regimes. This paradox is very apparent in the seas of Southeast Asia where countries are generally determined to obtain maximum benefit from their rights under UNCLOS. These nationalistic approaches quite fundamentally limit the prospects for maritime cooperation and regime-building in the region.

Maritime security Following the September 11 attacks, the IMO has given high priority to the review of existing international legal and technical measures to prevent and suppress terrorist attacks against ships and improve security aboard and ashore. The aim is to reduce the risk to passengers, crews and port personnel both onboard ships and in port areas and to vessels and their cargoes. An area of concern for the IMO has been the fundamental one of ship ownership and who has effective control of a ship for the purposes of ensuring both that the vessel is not used for terrorist purposes and that it has effective security arrangements in place. ISPS Code The main contribution of the IMO to international maritime security, the ISPS Code, entered into force on 1 July 2004.36 However, the code applies only to the so-called ‘SOLAS ships’, that is the ships over 500 gross tonnage that are employed on international voyages. Unless extended by national legislation,37 it does not apply to fishing vessels, ships under 500 gross tonnage, or to merchant ships employed only in the domestic trade. The number of vessels to which the ISPS Code does not apply is particularly large in Southeast Asia where there are large fishing fleets, many smaller trading vessels, and big domestic commercial fleets, particularly in Indonesia and the Philippines. Furthermore, and despite some rhetoric to the contrary, the ISPS Code, like other instruments of international law, cannot be enforced effectively. The IMO can monitor compliance but ultimately it all depends on the efficiency of the flag state at establishing administrative arrangements for the code and ensuring the compliance of ships flying its flag. And some flag states will report that arrangements are in place but in reality, these may not be effective. The IMO is

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attempting to establish a system of flag state audits but these will be voluntary and only as good as the flag state is prepared to make them. SUA Convention There are about a dozen international conventions dealing with the threat of terrorism but only the SUA Convention and its Protocol relate to terrorism at sea. The purpose of this convention was to close the gap created by the limited definition of piracy. These limitations were brought to light by the Achille Lauro incident in 1985. This was not an act of piracy because the terrorists, who seized the ship, were travelling as passengers onboard the vessel.38 The SUA Convention extends coastal state enforcement jurisdiction beyond the territorial limits, and in particular circumstances, allows exercise of such jurisdiction in an adjacent State’s territorial sea. The fact that some Southeast Asian countries have still to ratify the SUA Convention (see Table 8.1) is probably due to some sensitivity to the extra-territorial aspects of the convention. An IMO Diplomatic Conference in October 2005 adopted new protocols to the SUA Convention and its related Protocol on Fixed Platforms. These provide an international treaty framework for combating and prosecuting individuals who use a ship as a weapon or means of committing a terrorist attack, or transport by ship terrorists or cargo intended for use in connection with weapons of mass destruction programmes.39 A mechanism is also provided to facilitate the boarding in international waters of vessels suspected of engaging in these activities. These expanded provisions of the SUA Convention through the introduction of this protocol are unlikely to make the convention any more attractive to those countries, which so far have chosen not to ratify it. Long-range identification and tracking of ships Largely at the behest of the US, the IMO has also been discussing plans for the long-range identification and tracking (LRIT) of ships. LRIT would be part of general arrangements for enhancing maritime domain awareness to detect and monitor illegal activity at sea. Several countries, including Australia and the US, have already introduced extended offshore identification arrangements requiring ships approaching their shores to identify themselves well before they enter national waters. However, the right of a coastal state to require ships that are not entering a port in that state to identify themselves is uncertain under current international law. There is no complete consensus on the political, legal or financial implications of LRIT, and it is becoming one of the most sensitive issues confronting the international shipping industry.40

Maritime safety The 1979 SAR Convention encourages cooperation between States Parties and SAR organizations around the world with regard to search and rescue operations

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at sea. Search and rescue regions are established by the concerned parties. It obliges State Parties to provide adequate SAR services for persons in distress around their coasts. The original SAR Convention imposed considerable obligations on parties such as the need to set up arrangements onshore to manage their SAR responsibilities. As a result the convention was not widely ratified and a revised convention was approved at the IMO in 1997. This clarifies the responsibilities of governments and puts greater emphasis on regional cooperation. Parties are encouraged to enter into SAR agreements with neighbouring states involving the establishment of SAR regions, the pooling of facilities, establishment of common procedures, training and liaison visits. However, the convention has still failed to attract additional ratifications in Southeast Asia. A possible explanation is the obligation in the convention to allow entry into the territorial sea or territory of a state by rescue units from another state for the purpose of SAR. The convention states that parties should take measures to expedite entry into its territorial waters of rescue units from other parties.

Status of conventions Table 8.1 shows the current status in Southeast Asia of the conventions discussed in this chapter. As can be seen, there are still major gaps in the level of ratification of these important conventions in the region. Cambodia and Thailand are not parties to UNCLOS and only Singapore is a party to the SAR Convention. Furthermore, the SUA Convention and its Protocol have not been ratified by Cambodia, Indonesia, Malaysia and Thailand. Only the SOLAS Convention has been ratified by all regional countries although some of its protocols have not been. States face a significant task in reviewing their position with regard to international conventions to determine whether it is in their interest to become parties to them. Furthermore, a number of countries, which, although having ratified international conventions, have not given domestic effect to them. These problems lead to the idea of ‘laggard’ nations which are those that either avoid obligations Table 8.1 Status of Conventions and Agreements – Southeast Asian Countries

Brunei Cambodia Indonesia Laos Malaysia Myanmar Philippines Singapore Thailand Vietnam

UNCLOS

SOLAS 74

X

X X X

X X X X X X

X X X X X X

SAR

X

SUA 88

SUA 88 Protocol

X

X

X X X

X X

X

X

Sources: IMO and UN Division for Ocean Affairs and the Law of the Sea webpages.

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by not ratifying international treaties, or accept commitments, but then do not follow up on them.41 Lack of capacity to assess the implications of international treaties is a major reason for countries slipping into the laggard category. There appears to be a need for greater attention to these conventions, enhanced legal education and better domestic legislation. There needs to be greater awareness of the benefits of the conventions and acceptance of the principal that the sum of mutual benefits outweighs any perceived individual costs. Developing countries face problems with determining whether to ratify particular conventions. In the field of maritime security and safety, the articulation and enactment of sound and effective legislation is extremely important. These conventions are not considered to be self-executing and require domestic legislation to put them into force. In a region such as Southeast Asia, it would help also if domestic legislation was harmonized as far as the different legal systems will allow.

Building a maritime security regime There are important prerequisites of a successful maritime security and safety regime in Southeast Asia, and in turn this regime must include several key elements. The important prerequisites are, first, sufficient common interests where the expectations of participants might converge, and second, a strong political framework that bridges the social and cultural divides and reflects the interests of all concerned parties. These include not only the regional countries themselves but also countries in adjacent regions that have a vital interest in maritime security in Southeast Asia. The key elements of the regime are the norms, rules and procedures that characterize the regime. These are both the operational arrangements (i.e. for information sharing, surveillance, patrol and response) and the institutional arrangements for policy formulation, capacity building and burden sharing. At present the region is deficient with regard to both prerequisites of a successful maritime security regime. The region seemingly lacks sufficient common interests on which to base a regime and in part because of this, there is not a strong political framework to carry an effective regime forward. Common interests Most Southeast Asian countries strongly adhere to independence and sovereignty with regional countries generally reluctant to agree to cooperative activities if they appear to be compromising or qualifying national sovereignty or sovereign rights. This restraint is particularly significant in the maritime domain with the extended jurisdiction allowed by UNCLOS and numerous overlapping or conflicting claims to offshore areas, islands and reefs. It is reinforced by a certain lack of political commitment to cooperative activities,42 and can be manifest also in the failure to implement or comply with international instruments, such as the SUA and SAR Conventions, because they involve some concession of sovereignty. Southeast Asian countries are a diverse group. They vary greatly in terms of their geographical size, population, GDP per capita, defence capabilities, political

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systems, culture and tradition. Economic gaps are widening and there are concerns about the emergence of a ‘two-tiered’ ASEAN with Cambodia, Laos, Myanmar and Vietnam falling behind their better-off neighbours.43 Threat perceptions and definitions of security vary in the region. Most regional countries have priorities of economic development and poverty alleviation that have a higher call on national resources than measures to combat what are perceived basically as threats to the interests of the more developed world. The extra-regional powers Regional countries also have different perspectives as to how Southeast Asia should relate to the major external powers – China, India, Japan and the US – and how these countries might be involved in regional maritime security arrangements. Singapore has forged a strong alliance with the US but other Southeast Asian countries remain suspicious of US intentions and commitments in the region. Japan is the one extra-regional power that so far has made a significant contribution to the development of a maritime security regime in Southeast Asia.44 Japan contributes to the costs of providing safety in the Malacca Straits and now regularly deploys ships and aircrafts of the Japan Coast Guard (JCG) to assist in building the capacity of regional countries to deal with piracy and maritime terrorism. Japan was also instrumental in establishing the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). The US launched the Regional Maritime Security Initiative (RMSI) for the Malacca and Singapore Straits in 2004. This initiative was focused on the threats of piracy and terrorism, and to a lesser extent, drug smuggling, but did not recognize the concerns of the littoral states, particularly Indonesia and Malaysia, for other criminal activities at sea, such as people smuggling, illegal fishing and marine pollution. It was also not formulated in the terms of UNCLOS Article 43, possibly because the US is not a party to UNCLOS and may not recognize the ‘burden sharing’ provisions of the article as customary international law. Any onus on a user state to cooperate might be considered as an infringement of the principle of free and unobstructed passage. China has been demonstrating increased preparedness to enter into maritime cooperative activities in the region (a policy of ‘sincere cooperation’), including in disputed areas of the South China Sea. In April 2005, China committed to a string of partnership agreements with Indonesia, including on maritime cooperation and the transfer of defence technology. Along with China’s apparent preparedness to contribute to the safety and security of the Malacca and Singapore Straits, these developments demonstrate China’s intentions to build maritime influence in Southeast Asia, including through participation in maritime regime building. India has shown similar interest but so far apart from joint exercises with regional navies, has taken no specific initiatives.

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Political frameworks The European and South Pacific experiences demonstrate the importance of having overarching political frameworks in place as a fundamental prerequisite of effective maritime regimes at the regional level. These frameworks have facilitated the development in these two regions of a regional approach to issues such as maritime safety and the prevention of ship-sourced marine pollution. More arguably they also extend to maritime security. At present Southeast Asia lacks a strong political framework on which to build an effective maritime regime. ASEAN, the ASEAN Regional Forum (ARF) and the Asia-Pacific Economic Cooperation (APEC) all have limitations in this regard. A central aim of ASEAN in establishing the ARF over ten years ago was to bring China into a process of dialogue that would help China in playing a responsible role in the region (e.g. in the South China Sea),45 and this has largely been achieved. However, ASEAN’s insistence on retaining the central diplomatic role in the ARF is a source of frustration among Northeast Asian and Pacific participants.46 Furthermore, the asymmetry between membership of the ARF and its geographical area of concern also potentially leads to difficulties if ARF members outside of Southeast Asia use the forum to ‘preach’ to members within the area.47 APEC has similar limitations. While it has taken some significant counter-terrorism initiatives,48 its membership is geographically broad and it remains focused mainly on economics and trade issues. Regionalism in Asia suffered a setback with the financial crisis of the late 1990s but is now resurgent with high expectations for the East Asian Summit (EAS), the first meeting of which was held in December 2005. There is an emerging desire in East Asia to look after its own backyard. This is evident in the build-up to the EAS, based on ASEAN plus Three (i.e. China, Japan and South Korea), but also to include Australia, India and New Zealand. While this forum is mainly about trade, most commentators anticipate that it will also address regional security issues. ASEAN plus Three was an initial demonstration of emerging East Asian regionalism.49 With the wider plans for EAS, these are all attempts to build a regional association that is more limited in its geographical membership than APEC or the ARF. Similarly, ReCAAP might also be seen as part of a desire to mind one’s own backyard. Significantly, the US has had little influence on these developments. Operational factors The concept of an operational maritime security regime in Southeast Asia has quite a long history going back to the proposal for a Regional Maritime Surveillance and Safety Regime (RMSSAR) for Southeast Asian waters initially suggested by the Institute of Strategic and International Studies (ISIS) in Malaysia in 1990. However, several difficulties were identified with the implementation of this regime, including the lack of any clear commonality of interest between possible member countries, the differences in organizational

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arrangements for undertaking surveillance in these countries, and regional sensitivities to particular issues, including fishing and disputed maritime claims.50 An effective operational regime in the relatively confined waters of Southeast Asia should include arrangements for information sharing, building situational awareness of what is happening at sea, surveillance and patrol, and then to provide an operational response to any suspicious activity. The US sought this with the RMSI but some regional countries were reluctant to endorse the initiative. However, some progress is being made. In June 2004, agreement was reached between Indonesia, Malaysia and Singapore on coordinated patrols in the Malacca and Singapore Straits. These are based on the exchange of information on where patrol vessels from the three countries are patrolling but do not involve ships actually patrolling together. As these littoral countries move towards a better consensus on how on to meet security requirements in the straits, some form of truly joint patrolling might be possible in the future, including reciprocal rights of pursuit into each other’s territorial sea. Consensus might also be reached on how to involve the major user states and international agencies in these activities.

Conclusions The first part of this paper identified the comprehensive maritime regimes that have been developed internationally to provide good order at sea and security for shipping and seaborne trade. However, many regional countries are not convinced about the priority accorded to the threats of piracy and maritime terrorism, and are not parties to key international instruments. Their national concerns are more fundamental about poverty alleviation, and social and economic development. In a maritime sense, these translate into concerns for the health of the marine environment, the control of pollution (ship-sourced pollution in particular), and the management of dwindling fish stocks. Recognizing the salience of these concerns and translating these into a comprehensive maritime security regime offers scope for a possible way ahead. Tensions over law of the sea issues may become more significant in the future. Major Western navies are structuring their forces for littoral operations and power projection,51 while regional navies, including in Southeast Asia, continue to focus on sea denial operations intended to deny their littoral waters to the forces of a possible adversary. Expeditionary operations in the littoral waters of other states clearly require maximum freedoms of navigation and overflight while sea denial is supported by applying restrictions on those freedoms. Many examples of these conflicts of interest may be found in East Asian waters. They are apparent both with the implementation of navigational regimes (i.e. innocent passage, straits transit passage and ASL passage), and with the interpretation of rights and duties in the EEZ. There are many challenges with implementing international maritime regimes in Southeast Asia. Generally the promise of these regimes has not been realized in the region. There is a clear contrast between the international regimes and what is achievable at the regional and national level in Southeast Asia. The region needs a

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stronger political framework that promotes the interests of regional countries, particularly in good order at sea, including the link between safety and security. The benefits of regime participation must be promoted. This is not just a matter for the regional countries but applies also to the US whose failure to ratify UNCLOS remains a significant limitation on the ability of the international community to realize the full promise of that hugely important convention. It is only through steps such as those identified in this paper that the full promise of international regimes will be realized, and Southeast Asia will achieve the stable maritime regime advocated nearly 15 years ago by M. Leifer.

Notes 1 For a collection of recent essays reviewing the work of Professor Leifer see The Pacific Review, vol. 18, no. 1, March 2005. 2 M. Leifer, ‘The maritime regime and regional security in East Asia’, The Pacific Review, vol. 4, no. 2, 1991, pp. 126–36. 3 J. Vogler, The Global Commons: A Regime Analysis, Chichester: John Wiley & Sons, 1995, p. 2. 4 In a fine example of the need for compromise in maritime regime building, Article 56(2) of the 1982 UN Convention on the Law of the Sea (UNCLOS) provides that a coastal state should have ‘due regard’ to the rights and duties of other states in its EEZ, but then UNCLOS Article 58(3) requires other states to have ‘due regard’ to the rights and duties of the coastal state in exercising their rights and duties in the EEZ. However, no guidance is provided on what constitutes ‘due regard’. 5 Different writers define regime in different ways, sometimes explicitly and sometimes not. But most are agreed that a regime refers to norms, rules and procedures that regulate particular areas of public policy. E. B. Haas, ‘Why collaborate? Issue-linkage and international regimes’, World Politics, vol. XXXII, no. 3, April 1980, p. 358. Or, put somewhat more generally, regimes are regulated patterns of practice on which expectations converge. S. D. Krasner (ed.), International Regimes, Ithaca, New York: Cornell University Press, 1983, p. 2. 6 E. L. Miles, ‘Implementation of international regimes: a typology’ in D. Vidas and W. Ostreng (eds) Order for the Oceans at the Turn of the Century, The Hague: Kluwer Law International, 1999, p. 327. 7 Vogler, The Global Commons, p. 71. 8 The concept of international regime is broader than both international organization (which tends to involve systematic information gathering, inspection, dispute settlement and enforcement) and international law, which includes both formal, written agreements between states, and their customary practice. 9 Amendments to SOLAS Chapter V include the mandatory fitting of ship-borne automatic identification systems (AIS) for all ships of 500 gross tonnage and above on international voyages. 10 Other IMO conventions also bear on maritime safety, particularly the 1978 International Convention on Standards for Training, Certification and Watchkeeping for Seafarers (STCW Convention), but they are less dependent on cooperation and are not discussed in this paper. 11 M. Q. Mejia Jr., ‘Defining maritime violence and maritime security’ in P. K. Mukherjee, M. Q. Mejia Jr. and G. M. Gauci (eds) Maritime Violence and Other Security Issues at Sea, Proceedings of the Symposium on Maritime Violence and other Security Issues at Sea, World Maritime University, Malmo, Sweden, August 2002, p. 28.

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26 27 28

29 30 31 32

Sam Bateman W. O’Neill, ‘Safety and Security Now Inextricably Linked’, IMO News, no. 4, 2001, p. 4. Y. H. Song, ‘A survey of acceptance of the selected international maritime instruments by member countries of CSCAP’ in Institute for International Relations (IIR), ‘Objectives and principles of good governance: the contribution to regional security’, Proceedings of the Sixth Meeting of the CSCAP Maritime Cooperation Working Group, IIR, Hanoi, September 1999, p. 63. F. Gaffney, ‘“River Kwai syndrome” plays in Law of the Sea’, Commentary, US Naval Institute Proceedings, vol. 131, no. 3, March 2005, p. 2. This article argues that UNCLOS is defective on national security, sovereignty, economic, and judicial grounds. It gains significance because it was published in a prominent position in the USN’s main professional journal. Attributed to R. Frost, Mending a Wall, in J. M. and M. J. Cohen, The Penguin Dictionary of Quotations, First Edition., Harmondsworth: Penguin Books, 1960, p. 163. K. Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in SouthEast Asia, Singapore: Oxford University Press, 1987, p. 13. UNCLOS Article 5. US Department of State, ‘Straight Baseline Claim: China’, Limits in the Seas No.117, Bureau of Oceans and International Environmental and Scientific Affairs, 9 July 1996. UNCLOS Article 7(1). UNCLOS Article 7(3). UNCLOS Article 7(6). G. Austin, China’s Ocean Frontier: International Law, Military Force and National Development, St. Leonards: Allen & Unwin, 1998, p. 182. T. Scovazzi, ‘The establishment of straight baselines systems: the rules and the practice’, in Vidas and Ostreng (eds), Order for the Oceans at the Turn of the Century, pp. 445–56. J. A. Roach, ‘Salient issues in the implementation of regimes under the Law of the Sea Convention: an overview’, in Vidas and Ostreng (eds), Order for the Oceans at the Turn of the Century, p. 436. However, Sohn found that systems of straight baselines were explicitly taken into account in rather less than one-third of the boundary agreements negotiated. L. B. Sohn, ‘Baseline Considerations’, in J. I. Charney and L. M. Alexander, International Maritime Boundaries, vol.1, Dordrecht: Martinus Nijhoff Publishers, 1992, p. 157. J. R. V. Prescott, ‘Straight and Archipelagic Baselines’, in G. Blake (ed.), Maritime Boundaries and Ocean Resources, London: Croom Helm, 1987, p. 39. Ibid., p. 40. The criteria for an archipelagic state are first, the country must be constituted wholly by one or more archipelagos or islands; second, the islands and groups of islands should form an intrinsic geographical, economic and political entity, or have been historically regarded as such; and third, maximum and minimum limits are set to the area of water that can be included within the archipelago. When legitimate archipelagic straight baselines are drawn around the outer limits of the islands and drying reefs comprising the archipelago, the ratio of the area of water to area of land must lie between 1 to 1 and 9 to 1. UNCLOS Article 20. B. A. Hamzah, ‘International funding for the Straits of Malacca’, MIMA Bulletin, vol. 8, no. 1, 2000, pp. 5–9. A flag of convenience ship is one that flies the flag of a country other than the country of ownership. Cheap registration fees, low or no taxes and freedom to employ cheap labour are the motivating factors behind a shipowner’s decision to ‘flag out’. Global Policy Forum, ‘A brief guide to flags of convenience’. Available online at: (accessed 10 April 2006).

Building good order at sea in Southeast Asia 33 34 35 36

37 38

39 40 41 42 43 44

45 46 47

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Hot pursuit may also apply from the EEZ in respect of offences related to coastal state rights and duties in that zone. ‘Discussion on “hot pursuit” agreements’, New Straits Times, 30 May 2005. Available online at: (accessed 31 May 2005). J. F. Bradford, ‘The growing prospects for maritime security cooperation in Southeast Asia’, Naval War College Review, vol. 58, no. 3, Summer 2005, pp. 63–86. This code includes a mandatory section (Part A) and a recommendatory section (Part B). Part A requires ships to have security assessments and plans, ship security officers and certain onboard equipment, as well as permanent ship identity markings and a Continuous Synopsis Record recording ship ownership. Ships will have to carry an International Ship Security Certificate (ISSC) indicating that they comply with the requirements of SOLAS and the ISPS Code. The ISSC will be subject to port state inspections. Similarly, ports are required to have security assessments, security plans and security officers, and to monitor and control access. Ships may also be subject to control measures if the port state is concerned that they have visited a non-compliant port in the recent past. The Maritime Transport Security Act (Cwlth) 2003 in Australia, for example, extends ISPS provisions to all ships employed on interstate voyages but not to ones employed on intra-state voyages. The Achille Lauro affair occurred in the Mediterranean when Arab terrorists took over the cruise line, killing an elderly American tourist in the process. It was not an intentional terrorist act rather an unfortunate incident resulting after four terrorists trying to get to Israel were caught off guard when a steward entered their cabin and found them cleaning their weapons. The Achille Lauro affair, however, has had major consequences, including disputes between the United States and other countries on issues of criminal jurisdiction. US Department of State, ‘Protocols to the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)’, Fact Sheet, 21 October 2005. C. Eason, ‘Freedom and security: the dilemma of vessel tracking’, Lloyd’s List online, 21 April 2006. P. M. Haas, R. O. Keohane and M. A. Levy (eds) Institutions for the Earth: Sources of Effective Environmental Protection, Cambridge, Mass.: MIT Press, 1993, p. 16. T. R. Shie, ‘The nexus between counterterrorism, counterproliferation, and maritime security in Southeast Asia’, Issues and Insights 04–04, Pacific Forum CSIS, 2004, pp. 5–6. M. C. Anthony, ‘Understanding development gaps in ASEAN’, IDSS Commentaries 28/2005, 31 May 2005. For a comprehensive description of Japanese maritime security initiatives in Southeast Asia see J. F. Bradford, ‘Japanese anti-piracy initiatives in Southeast Asia: policy formulation and the coastal state responses’, Contemporary Southeast Asia, vol. 26, no. 3, 2004, pp. 480–505. J. Henderson, ‘Reassessing ASEAN’, Adelphi Paper No.328, London: International Institute for Strategic Studies, May 1999, p. 28. M. Leifer, ‘The ASEAN Regional Forum’, Adelphi Paper No.302, London: International Institute for Strategic Studies, July 1996, p. 59. S. S. C. Tay, ‘Preventive Diplomacy and the ASEAN Regional Forum: principles and possibilities’, in D. Ball and A. Acharya (eds) The Next Stage – Preventive Diplomacy and Security Cooperation in the Asia-Pacific Region, Canberra Papers on Strategy and Defence No. 131, Canberra: Strategic and Defence Studies Centre, Australian National University, 1999, p. 144. These include the Secure Trade in the Asia-Pacific Region (STAR) initiative, which provides for the protection of ships and cargoes, promotes the introduction of ship and

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port security plans, provides for the accreditation of seafarer manning agencies in the region, promotes cooperation on fighting piracy, sets standards for shipborne detection equipment and technology, and pays particular attention to energy security including the security of SLOCs. 49 R. Stubbs, ‘ASEAN Plus Three: emerging East Asian regionalism?’, Asian Survey, vol. 42, no. 3, May/June 2002, pp. 440–55. 50 D. Ball and S. Bateman, ‘An Australian perspective on maritime CSBMs in the AsiaPacific region’, in A. Mack (ed.) A Peaceful Ocean? Maritime Security in the Pacific in the Post-Cold War Era, St. Leonards: Allen & Unwin, 1993, pp.158–85. See also, Captain R. Swinnerton RAN and D. Ball, ‘A regional regime for maritime surveillance, safety and information exchanges’, Maritime Studies, no. 78, September/October 1994, pp. 1–15. 51 G. Till provides an excellent contemporary review of how navies, predominantly Western, are changing to reflect a focus on expeditionary operations in Seapower: a Guide for the Twenty-First Century, London: Frank Cass, 2004.

9

Archipelagic sea lanes passage in Southeast Asia Developments and uncertainties Robert Beckman

The two largest archipelagic states in the world – Indonesia and the Philippines – are located in Southeast Asia. They strongly believe that their islands and interconnecting waters are so closely interrelated that they are inseparable, and that control over the waters within their archipelago is essential to their very identity and existence as states. Therefore, they insisted during the development of the law of sea over the past 50 years that an archipelagic states regime be recognized which would give them sovereignty over both their island territories and the waters within their archipelago. However, passage through and over the archipelagos of Indonesia and the Philippines is vital to the security and economic interests of the maritime powers and other states. Several major routes used for international navigation pass through the archipelagos of Indonesia and the Philippines. More than half the world’s trade passes through these waters, and navigation through the waters is critically important to the energy needs of states in Northeast Asia. In addition, naval powers must pass through these states in order to move their fleets from the Indian Ocean to the South China Sea. The legal regime set out in Part IV of the 1982 United Nations Convention on the Law of the Sea1 (UNCLOS) on archipelagic states was negotiated in the mid1970s in order to strike a balance between the interests of the archipelagic states and the interests of the user states.

Historical development of the legal regime governing archipelagos Negotiations at the Third United Nations Conference on the Law of the Sea (Third UN Conference) began in 1973 and were not completed until the adoption of UNCLOS in December 1982. At the Third UN Conference Indonesia and the Philippines worked with other archipelagic states such as Fiji and Mauritius to gain recognition for the archipelago concept. The archipelagic states argued that the normal rules on drawing baselines from which to measure the territorial sea should not apply to mid-ocean archipelagos. They maintained that there was an inseparable unity between their islands and the waters which connected them, and that unity was essential to their very identity as states. Thus, it was imperative that they have sovereignty not just over their islands, but

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also over the waters between their islands and to other geographic features within their archipelago. The major maritime powers opposed the archipelago concept because it was a threat to the freedoms of navigation and overflight through and over the archipelagic states. Both Indonesia and the Philippines were very large states and several major international shipping routes passed through them. If the archipelago concept were accepted, it would bring all of the waters enclosed by the straight baselines around the archipelago under the sovereignty of the archipelagic states. There would no longer be any belt of high seas between the islands where all states enjoyed the high seas freedoms of navigation and overflight. Therefore, the archipelago concept was a threat to the military interests of the major naval powers, who wanted the freedom to move their navies between the Indian Ocean and the South China Sea without having to pass through waters under the sovereignty of coastal states. The proposal for a special archipelagic states regime posed the same threat to the major maritime powers as the proposal to extend the breadth of the territorial sea from 3 nautical miles to 12 nautical miles. With a 12-nautical-mile territorial sea, choke points on traditional international shipping routes such as the Malacca Strait would no longer be governed by the high seas freedoms of navigation and overflight, but would be governed by the territorial sea regime, where there is no right of overflight and where the passage of ships is governed by the right of innocent passage. At the Third UN Conference the major maritime powers sought to protect their military interests by agreeing to new regimes for straits used for international navigation and for archipelagic states. Part III of UNCLOS contains a new regime for straits used for international navigation, where all states have the right of transit passage. Part IV of UNCLOS contains a new regime for archipelagic states, where all states have a right of archipelagic sea lanes passage. These regimes recognize the sovereignty of coastal states in a 12-nautical-mile territorial sea and the sovereignty of archipelagic states in their archipelagic waters. However, they limit that sovereignty by giving all states the right of transit passage through straits used for international navigation that pass through the territorial sea and the right of archipelagic sea lanes passage on international sea lanes through archipelagic states.

UNCLOS regime for archipelagic states The archipelagic states regime is limited to mid-ocean archipelagos, or to states constituted wholly by one or more archipelagos.2 Also, the regime is only applicable to mid-ocean archipelagos in which the ratio of the area of water to the area of land is between 1 to 1 and 9 to 1.3 The regime allows archipelagic states to use straight baselines joining the outermost points of the outermost islands and drying reefs. The waters enclosed by the archipelagic baselines are referred to as archipelagic waters. The territorial sea and the exclusive economic zone of an archipelagic state are measured from the archipelagic baselines.

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The sovereignty of the archipelagic state extends to its archipelagic waters as well as to the air space above those waters and to the seabed and subsoil under the waters.4 This means that as a general principle, the laws of the archipelagic states apply to activities in its archipelagic waters and the archipelagic state has the exclusive right to exercise the functions of government in its archipelagic waters. Also, because the archipelagic state has sovereignty over its islands and archipelagic waters, under general principles of international law foreign military aircraft would have no right to fly over the archipelagic state. Although archipelagic states have sovereignty over their archipelagic waters, their sovereignty is limited by UNCLOS. Article 49(3) specifically provides that the sovereignty of the archipelagic state must be exercised subject to the provisions in Part IV of UNCLOS on archipelagic states. The major limitation on the sovereignty of the archipelagic state in its archipelagic waters is that all states have rights of passage through and over the archipelagic waters. First, ships of all states have the right of innocent passage through the archipelagic waters.5 This right is the same as the right of innocent passage through the territorial sea. Second, ships and aircraft of all states have the right of archipelagic sea lanes passage through and over archipelagic waters on designated sea lanes and air routes.6 The right of archipelagic sea lanes passage is almost identical to the right of transit passage through and over straits used for international navigation.7

Regimes of transit passage and archipelagic sea lanes passage There are minor differences between the regimes of transit passage and archipelagic sea lanes passage.8 However, for most purposes, the two regimes can be described as practically identical. This is primarily a result of Article 54 of UNCLOS, which provides that four of the provisions on straits used for international navigation (Articles 39, 40, 41 and 42) apply mutatis mutandis to the regime of archipelagic sea lanes passage. The transit passage and archipelagic sea lanes passage regimes differ substantially from the regime of innocent passage. Both regimes give user states greater rights of passage than the right of innocent passage and have the following common features when compared to the right of innocent passage: 1

2

The rights of transit passage and archipelagic sea lanes passage include overflight for aircraft as well as navigation for ships.9 By contrast, the right of innocent passage is limited to the passage of ships.10 Ships exercising the rights of transit passage or archipelagic sea lanes passage may use their normal mode of transit.11 For example, submarines may transit submerged and military aircraft may overfly in combat formation with normal equipment in operation. Also, surface warships may transit in a manner necessary for their security, including formation steaming and the launching and recovery of aircraft, where consistent with sound navigational practices. By contrast, when exercising the right of innocent passage submarines must surface and fly their flag.12 Also, when exercising the right of

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The regimes of transit passage and archipelagic sea lanes passage are also different from the regime governing innocent passage in the territorial sea in another important respect. The right of the coastal state or archipelagic state to regulate ships exercising the right of transit passage or archipelagic sea lanes passage is very limited.16 The power to regulate the ships exercising these passage rights is in effect given to the International Maritime Organization (IMO). Although ships exercising such passage rights are obliged to comply with ‘generally accepted international regulations, procedures and practices’17 for safety at sea and shipsource pollution, the power of coastal states to regulate ships exercising such passage rights is limited to ‘giving effect to’ generally accepted international regulations.18 By contrast, coastal states have a fairly broad power to regulate ships exercising the right of innocent passage.19 Another distinctive feature of the regimes governing passage through archipelagic states and straits used for international navigation is that certain regulations governing ships exercising rights of passage must be approved by the IMO. If sea lanes and traffic separation schemes are going to be established in a strait used for international navigation, they must conform to IMO regulations and be proposed by the states bordering the strait to the IMO with a view to their adoption by the IMO.20 A similar provision applies to sea lanes through an archipelagic state. An archipelagic state may designate sea lanes through their archipelago, but the sea lanes must conform to IMO regulations, and they must be referred by the archipelagic states to the IMO with a view to their adoption.21 UNCLOS does not require that archipelagic states designate sea lanes and air routes. It merely provides that archipelagic states ‘may’ designate sea lanes and air routes.22 However, it also specifies that any designation of sea lanes must include all normal passage routes and navigational channels, except that duplication of routes of similar convenience between the same entry and exit points is not necessary.23 UNCLOS also provides that archipelagic states may prescribe traffic separation schemes through narrow channels within such sea lanes.24 Once sea lanes and air routes through an archipelagic state have been proposed and adopted, ships and aircraft of all states, including military ships and military aircraft, enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes for the purpose of continuous and expeditious transit through the archipelago.25 UNCLOS specifically provides that if an archipelagic state does not designate sea lanes or air routes, ships and aircraft may exercise the right of archipelagic sea lanes passage through the ‘routes normally used for international navigation’26 through the archipelagic state.

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If sea lanes are designated through an archipelagic state as provided in UNCLOS, the sea lanes themselves do not enjoy any special international status. The sea lanes are within the sovereignty of the archipelagic state, subject to the right of archipelagic sea lanes passage. Any activity by a ship within an archipelagic sea lane which is not an exercise of the right of archipelagic sea lanes passage remains subject to the laws and regulations of the archipelagic state and to the other provisions in UNCLOS. For example, if a fishing vessel were to engage in fishing while passing through the archipelago within a designated sea lane, the fishing activity would not be an exercise of the right of archipelagic sea lanes passage and the archipelagic state would have a right to arrest the fishing vessel for illegal fishing.

Indonesian proposal for partial system of archipelagic sea lanes At the sixty-seventh session of the Maritime Safety Committee (MSC) in May 1996, Indonesia submitted a proposal for the designation of archipelagic sea lanes through its archipelagic waters.27 The proposal by Indonesia consisted of three north–south sea lanes. Indonesia was the first archipelagic state to submit a proposal to the IMO on the designation of sea lanes. The UN Division of Ocean Affairs and Law of the Sea had stated in 1994 that the relevant competent international organization for the purposes of archipelagic sea lanes would be the IMO, but the IMO had no procedures or guidelines on the designation of archipelagic sea lanes. When it learned that Indonesia was going to make a proposal to the sixty-seventh session of the MSC for the designation of sea lanes, Australia made a formal submission giving its views on IMO procedures for adopting archipelagic sea lanes.28 After receiving the Indonesian proposal and the Australian submission, the MSC decided to consider the Indonesia proposal for the designation of archipelagic sea lanes as a routeing measure, and to refer the matter to its Sub-Committee on Safety of Navigation (NAV Sub-Committee) together with the submission of Australia.29 It instructed the NAV Sub-Committee to consider the matter and submit recommendations to the sixty-ninth session of the MSC.30 Indonesia worked closely with Australia and the United States and with the NAV Sub-Committee to reach a consensus on the procedures for the designation and adoption of archipelagic sea lanes. Consequently, at its forty-third session in July 1997, the NAV Sub-Committee recommended new procedures for dealing with future proposals for archipelagic sea lanes.31 In 1997 the NAV Sub-Committee considered the proposal for the designation of sea lanes through the Indonesian Archipelago that had been submitted to the MSC in 1996. Both Australia and the US made submissions to the NAV Sub-Committee with respect to the normal passage routes through the Indonesian archipelago. In its submission the US noted that ‘Indonesia had not proposed that the IMO adopt a major east–west sea lane through the Java Sea as well as smaller associated lanes and connectors that were used for international navigation, and that consequently, the submission should be viewed as a proposal for a partial designation only’.32

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The US submission contained a chartlet which it claimed generally illustrates other routes not encompassed by the Indonesian proposal normally used for international navigation by ships and aircraft while in archipelagic sea lanes passage through the Indonesian archipelago.33 Australia agreed with the US that the Indonesia proposal should be considered a partial designation because it did not include the east–west sea passage route.34 Australia also submitted an attached map indicating what in its view were the normal passage routes used by shipping to and from Australia. It stated that the routes illustrated on the map ‘have been arrived at by examination of accepted international navigational charts of the area, close consultation with the shipping industry in Australia and reference to data recording naval ship transits through the Indonesian archipelago’.35 One of Australia’s major concerns was with regard to the charting of archipelagic sea lanes and the positioning of the axis line. It was troubled by the ambiguity in Article 53(5) on axis lines, which provided no guidance on the positioning of an axis line within an archipelagic sea lane. It also saw difficulties with respect to the width of archipelagic sea lanes and the ten per cent rule referred to in Article 53(5).36 In any case, it appears that at least in 1997, there were some differences in the positions of Australia and the US with respect to the smaller associated lanes and connectors on the east–west route.

IMO procedures and functions on archipelagic sea lanes In May 1998 at its sixty-ninth session the MSC considered the report and recommendations of the NAV Sub-Committee. It adopted amendments to the General Provisions on Ships’ Routeing concerning the adoption, designation and substitution of archipelagic sea lanes (General Provisions on Ships’ Routeing).37 The amendments clarified the functions of the IMO and the procedures with respect to proposals for archipelagic sea lanes. The procedures and functions of the IMO are defined as follows: 3.1 IMO is recognized as the competent international organization responsible for adopting archipelagic sea lanes in accordance with the relevant provisions of UNCLOS and these provisions. 3.2 When adopting a proposed archipelagic sea lane, IMO will ensure that the proposed sea lane is in accordance with the relevant provisions of UNCLOS and determine if the proposal is a partial archipelagic sea lanes proposal. IMO may adopt only such archipelagic sea lanes as may be agreed by the Government of the proposing archipelagic State. 3.3 Upon receipt of a proposal for designating archipelagic sea lanes and before consideration for adoption, the IMO shall ensure that the proposal is disseminated to all Governments and ICAO so as to provide them with sufficient opportunity to comment on the proposal.

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3.4 Following a proposal to the IMO by an archipelagic State, other States may request that the archipelagic State propose additional sea lanes to include all other normal passage routes used as routes for international navigation or overflight through or over archipelagic waters as required by UNCLOS. 3.5 In order for IMO to ensure that sea lanes proposed for adoption include all normal passage routes, IMO shall retain continuing jurisdiction (i.e., competence) over the process of adopting archipelagic sea lanes until such time that sea lanes including all normal passage routes have been adopted as required by UNCLOS.38 The General Provisions on Ships’ Routeing also clarified the responsibilities of government of the archipelagic state, and set out recommended practices that should be followed. The following provisions are significant: 3.6 The Government of an archipelagic State considering proposing archipelagic sea lanes should consult at an early stage with other user Governments and the IMO. 3.7 Subject to paragraph 3.9, the Government of an archipelagic State which wishes to designate archipelagic sea lanes shall propose to IMO for adoption archipelagic sea lanes including all normal passage routes and navigational channels as required by UNCLOS. 3.8 An archipelagic sea lanes proposal shall provide sea lanes suitable for the continuous and expeditious passage of foreign ships and aircraft in the normal mode through or over the archipelagic waters and the adjacent territorial sea. In proposing archipelagic sea lanes, the Government shall explain in its proposal the suitability of such sea lanes for such continuous and expeditious passage. 3.9 The proposal shall also indicate if it is a partial archipelagic sea lane proposal. 3.12 If IMO adopts a partial archipelagic sea lane proposal as a partial system of archipelagic sea lanes, the archipelagic State shall periodically inform IMO on its plans for conducting further surveys and studies that will result in the submission to IMO of proposals for adoption of all normal passage routes and navigational channels as required by UNCLOS, along with the general location of these lanes and time frame for this effort. In such a case, the archipelagic State is ultimately required to propose for adoption archipelagic sea lanes including all normal passage routes and navigational channels as required by UNCLOS.39 Another provision which is particularly important in the context of the Indonesian archipelago is the following: 6.7 Where a partial archipelagic sea lanes proposal has come into effect, the right of archipelagic sea lanes passage may continue to be exercised

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Revised proposal of Indonesia in 1998 As it prepared to propose the designation of its archipelagic sea lanes in 1996, Indonesia also took steps to revise its baselines to bring them into conformity with UNCLOS.41 Indonesia’s archipelagic baselines had originally been defined in Law No. 4 of 18 February 1960. At the sixty-ninth session of the MSC in 1998 Indonesia submitted a revised proposal for the designation of archipelagic sea lanes.42 It stated that it had been prepared in consultation with various interested governments, which included Australia and the US. Indonesia also confirmed that its proposal was a partial proposal and that the relevant provisions of the then draft General Provisions on Ships’ Routeing (NAV 43/15, Annex 4) will apply. In particular, Indonesia agreed that, since it was a partial designation, the right of archipelagic sea lanes passage may be exercised . . . in all other normal passage routes used for international navigation or overflight and all normal navigational channels lying within such routes, including an east–west route and other associated spurs and connectors, through and over Indonesia’s territorial sea and its archipelagic waters. (emphasis added)43 Both the revised proposal of Indonesia and the 1998 Report of the Maritime Safety Committee make it clear that Indonesia had agreed that two other paragraphs in the General Provisions on Ships’ Routeing adopted in 1998 were applicable because its revised proposal was a partial system of archipelagic sea lanes.44 First, Indonesia must periodically inform the IMO of its plans for the submission of further sea lane proposals to the IMO for adoption, including the general location of the additional sea lanes and the time frame for their submission.45 Second, until the designation of archipelagic sea lanes includes all normal passage routes, the IMO will continue to have jurisdiction over the issue of archipelagic sea lanes in Indonesia.46 After thorough consideration, the MSC adopted resolution MSC.72(69) on adoption, designation and substitution of archipelagic sea lanes formally adopting the proposed partial system of archipelagic sea lanes through the Indonesian archipelago.47 Indonesia undertook to inform the MSC of the date on which the partial system of archipelagic sea lanes would be implemented. At its seventieth session in December 1998, the MSC approved the Guidance to Ships Transiting Archipelagic Waters, which was circulated to all IMO members in January 1999.48 Three points in the guidelines are worthy of mention (emphasis added):

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Paragraph 2.1.1 provides that if the IMO has adopted a partial system of archipelagic sea lanes, the right of archipelagic sea lanes passage may continue to be exercised through all normal passage routes used as routes for international navigation in other parts of archipelagic waters.49 Paragraph 4 provides that ships exercising the right of archipelagic sea lanes passage must use applicable sea lanes (or normal passage routes if sea lanes have not been adopted or only a partial system of archipelagic sea lanes has been adopted.)50 Paragraph 4.1 gives examples of the meaning of the normal mode of operation for ships exercising archipelagic sea lanes passage. It provides that it means, for example, that submarines may transit submerged and surface ships may engage in normal operations, such as replenishment-at-sea and the operation of embarked aircraft, where consistent with the safety of navigation.51

Promulgation of Indonesian government Regulation No. 37 of 2002 At the seventy-sixth session of the MSC in 2002, Indonesia informed the committee that on 28 June 2002 it had promulgated Government Regulation 37 of 2002 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lanes Passage Through Designated Archipelagic Sea Lanes (Regulation 37 of 2002). Indonesia announced that pursuant to this, the archipelagic sea lanes in Indonesian waters would be implemented on 28 December 2002. The text of Regulation 37 of 2002 was circulated to member governments of the IMO on 3 July 2003.52 Regulation No. 37 of 2002 sets out in the domestic law of Indonesia the rights and obligations of ships exercising the right of archipelagic sea lanes passage through the archipelagic sea lanes of Indonesia. The regulation is obviously an attempt by Indonesia to clarify the right of archipelagic sea lanes passage by providing more certainty as to exactly what types of activities can be undertaken and what types of activities cannot be undertaken by a ship exercising the right of archipelagic sea lanes passage. The US has taken specific steps to declare that notwithstanding the Indonesian Regulation, it intends to exercise the right of archipelagic sea lanes passage through all routes normally used for international navigation. In the statement it submitted to the MSC on 25 March 2003 stating its view that Indonesia had not properly designated its sea lanes as required by the IMO guidelines, it also stated that ‘the United States understands that the designation of sea lanes is a partial designation in that it does not address passage through all traditional routes’.53 The US also expressly reserved its right and those of its nationals to exercise the right of archipelagic sea lanes passage through all routes of the Indonesian archipelago normally used for international navigation.54 On 8 August 2003, the US State Department sent a telegram to the US Embassy in Jakarta concerning Indonesia’s archipelagic claims directing that clarification be sought on Regulation No. 37. The US statement advised that it considers for the most part that Regulation No. 37 and its annexes faithfully follow the provisions of

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Part IV of UNCLOS and the Sea Lanes adopted by the IMO in 1998.55 However, the statement raised the following points with respect to Regulation No. 37: 1

2

3

Regulation No. 37 does not make it clear that except for internal waters within archipelagic waters, all ships enjoy the right of innocent passage in all of the Indonesian archipelagic waters and adjoining territorial sea, as prescribed in Article 52(1) of UNCLOS.56 Regulation No. 37 does not make clear that as this is a partial designation of archipelagic sea lanes, the right of archipelagic sea lanes passage exists through all routes normally used for international navigation through other parts of the Indonesian archipelago, as set out in article 53(12) and Paragraph 6.7 of the IMO General Provisions for Ships’ Routeing.57 While article 14 of Regulation No. 37 recognizes the effect of the independence of East Timor, Indonesia has not advised the international community of the precise coordinates of the new location of the termination of the axes of the spurs in the vicinity of East Timor that were caused by the change in the status of the waters in that area. Nor has Indonesia revised the archipelagic straight baselines that are measured from basepoints on East Timor territory.58

The US seems to be taking the position that Indonesia’s archipelagic sea lanes will not be properly designated until the precise coordinates of the spurs of the sea lanes near Timor Leste are clarified. The US is also giving clear notice that it intends to insist on the right of archipelagic sea lanes passage in all routes used for international navigation, including the east–west lane. Nevertheless, it is also significant that the US limited its criticisms of Regulation No. 37 to the above points. Since the US did not object to the other provisions in Regulation No. 37, it can be argued that they have acquiesced to those provisions. Consequently, the regulation provides some certainty as to the rights and obligations of states in exercising the right of archipelagic sea lanes passage.

Uncertainties regarding the East–West route as a normal route To date it has not been possible for Australia, Indonesia and the US to reach a consensus on an east–west route, including smaller associated lanes and connectors to such a route. However, Indonesia has confirmed on several occasions that its designation is only partial. Also, Indonesia seems to have agreed in IMO meetings in 1998 that an east–west sea lane should be designated. Therefore, it may be that there is agreement in principle on the need to designate an east–west sea lane, but a lack of consensus on which ‘smaller associated lanes and connectors’ are routes normally used for international navigation on the east–west route. Given that Australia and the US had differing views in 1997 on which smaller associated sea lanes and connectors are routes normally used for

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international navigation on the east–west route, it is likely that Indonesia has a third position on this issue. In other words, as is often the case, the devil is very likely in the detail. There is likely to be further negotiations before the remaining issues with respect to an east–west sea route are finally resolved and an east–west route is designated. In the meantime, the international community will have to continue to live with a limited degree of uncertainty with regard to the status of the east–west route through the Indonesian archipelago.

The Philippines archipelago The government of the Philippines issued a declaration of understanding when it signed and ratified UNCLOS which contained statements that were not compatible with the archipelagic regime set out in UNCLOS. In response, interested states, including the two superpowers, made formal objections to the Philippine declarations. In response to the objections, the Philippines issued a declaration in 1988 stating that it would abide by the provisions of UNCLOS, that it would harmonize its domestic legislation with UNCLOS and that it would enact legislation dealing with archipelagic sea lanes passage.59 Seventeen years have passed since the 1988 Declaration of the Government of the Philippines stating that it intends to harmonize its domestic legislation with the provisions of UNCLOS. However, no legislation on archipelagic sea lanes passage has been enacted and no proposals have been made to the IMO for the designation of sea lanes through the Philippine archipelago. In these circumstances, the provision of UNCLOS which is most relevant is Article 53(12), which provides that if an archipelagic state does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised though the routes normally used for international navigation. The delegation of the Philippines made some comments during the meetings of the MSC at its sixty-ninth session in 1998 when the committee approved the General Provisions on Ships Routeing and adopted the Indonesian revised proposal for a partial system of archipelagic sea lanes. First, the delegation of the Philippines gave notice that it might, in future, propose amendments to the General Provisions on Ships’ Routeing. Second, it stated that the discussions and agreements on the designation of Indonesians archipelagic sea lanes should exclusively apply to the Indonesian archipelagic sea lanes and should not be interpreted as creating a precedent for future applications for the designation of archipelagic sea lanes.60 Although the Philippines would have the right to make proposals to amend the General Provisions on Ships’ Routeing with regard to archipelagic sea lanes, the IMO is not likely to accept any proposals for amendments that would fundamentally change the procedures and practices it developed in response to the Indonesian proposal. The IMO is likely to insist that it perform the functions set out in paragraphs 3.1 to 3.5, and that the Philippines assume the responsibilities and follow the recommended practices set out in paragraphs 3.6 to 3.13.

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The procedures that are likely to be followed for any proposal to designate sea lanes in the Philippines are: 1

2

3

4

The IMO responsibilities will be carried out by the Maritime Safety Committee with assistance from the Sub-Committee on Safety of Navigation. The Government of the Philippines will be expected to consult at an early stage with interested user states in determining the routes normally used for international navigation. The procedures for the designation, promulgation and entry into force of the archipelagic sea lanes will be in accordance with the provisions set out in the General Procedures for Ships’ Routeing. Any proposal for designation of archipelagic sea lanes that does not include all routes normally used for international navigation is likely to be approved only as a partial designation. In such case user states are likely to insist that they continue to have a right of archipelagic sea lanes passage through and over normal routes for international navigation.

If the Philippines decides to designate archipelagic sea lanes, the user states it should consult will include Australia and the US. Most of the minerals exported from Australia to Northeast Asia pass through the Philippines archipelago. The US has an interest in ensuring that its naval vessels can continue to pass through the Philippines archipelago exercising the right of archipelagic sea lanes passage. As its starting point in negotiations on normal routes for international navigation through the Philippines archipelago, the US is likely to begin with the analysis set out in the study done by Lewis Alexander in 1986.61 Given that it is bound under international law by Part IV of UNCLOS to respect the right of archipelagic sea lanes passage through its archipelagic waters, it may be in the national interests of the Philippines to make a proposal to the IMO for the designation of archipelagic sea lanes through its archipelago. If it were to follow the precedent of Indonesia and designate sea lanes, there would be more certainty on the issue of whether states have a right of archipelagic sea lanes passage in particular routes used for international navigation through the Philippine archipelago. Until sea lanes are designated, naval powers are likely to take the position that they have the right of archipelagic sea lanes passage through ‘all routes normally used for international navigation’, and they are likely to interpret this phrase rather broadly. The Philippines has special concerns about archipelagic sea lanes passage because the international shipping routes through its archipelago are fairly narrow. They also have serious environmental concerns because the international shipping lanes pass through waters that are rich in fisheries and other marine biological diversity.62 The Philippines is especially concerned about the threat to its marine environment from vessels exercising archipelagic sea lanes passage. Fortunately, most oil tankers going from the Middle East to Northeast Asia, including very large crude carriers (VLCCs), use the route through the Straits of Malacca and Singapore, and do not pass through the Philippines.

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One advantage for the Philippines if it designates archipelagic sea lanes is that the routes through which ships can exercise archipelagic sea lanes passage will be clear, and it will be better able to monitor traffic in those lanes for vessel-source pollution. The Philippines will want to keep the number of designated sea lanes through its archipelago to an absolute minimum. It is likely to take the position that because of environmental considerations, only the ‘major routes’ used for international navigation through its waters should be designated as sea lanes for the purposes of archipelagic sea lanes passage. If the major routes used for international navigation will accommodate the interests of naval powers such as the US and states with the greatest interest in routes for commercial vessels such as Australia, the Philippines may be able to reach an agreement with the major users that will be accepted by the IMO.

Conclusions UNCLOS is now almost universally accepted. The provisions on archipelagic sea lanes passage in Part IV of UNCLOS represent a carefully negotiated compromise between the interests of the archipelagic states in maintaining sovereignty in their waters and the interests of user states in maintaining the right to navigate through and fly over the waters of the archipelagic state on international shipping routes. Many of the uncertainties which existed prior to UNCLOS have been resolved. Part IV of UNCLOS made it clear that archipelagic states such as Indonesia and the Philippines may draw straight baselines connecting the outermost points of their outermost islands and claim sovereignty over the archipelagic waters enclosed by the baselines. UNCLOS made it equally clear that their sovereignty in those waters is limited by the provisions of UNCLOS and that foreign ships and aircraft have a right to navigate through and over their waters in designated sea lanes in accordance with the provisions in Part IV of UNCLOS. Significantly, the archipelagic states regime set out in UNCLOS has been accepted by the major archipelagic states and user states. Although some archipelagic states such as the Philippines have been reluctant to bring their national laws into conformity with UNCLOS, those same archipelagic states accept that in their relations with other states they are legally bound by the legal regime set out in Part IV of UNCLOS. Even more important, the largest archipelagic state, Indonesia, has been instrumental in developing the procedures and principles established in UNCLOS on the designation of archipelagic sea lanes. The archipelagic states regime set out in Part IV of UNCLOS has developed in several ways as a result of the designation of sea lanes through Indonesia. First, UNCLOS provided that sea lanes were to be designated by archipelagic states in cooperation with the competent international organization, but there was a lack of certainty as to the exact procedure to be followed for the designation of sea lanes and the precise role of the international organization in this process. It is now clear that the IMO, through its MSC and its NAV Sub-Committee, plays a critically important role in balancing the competing interests of the archipelagic states and user states, as it must approve the proposals for the designation of archipelagic sea lanes.

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Second, the responsibilities of the archipelagic states in the designation of archipelagic sea lanes have been clarified as a result of the actions at the IMO in response to the Indonesian proposal for archipelagic sea lanes. It is now clear that archipelagic states are expected at an early stage to enter into consultations with interested user states, and to follow the relevant provisions of the General Provisions on Ships’ Routeing that apply to the adoption, designation and substitution of sea lanes. Third, it has become clear that the IMO has a responsibility to continue to develop its regulatory regime on international shipping so that ships exercising the right of archipelagic sea lanes passage do not pose unreasonable threats to the safety, security and marine environment of archipelagic states. The IMO has this continuing power and responsibility because Part IV of UNCLOS provides that all ships exercising the right of archipelagic sea lanes passage must comply with generally accepted international regulations, procedures and practices for safety at sea and for the prevention, reduction and control of pollution from ships.63 Therefore, as the IMO develops new generally accepted international regulations, procedures and practices on these matters, all ships exercising the right of archipelagic sea lanes passage will be obliged to comply with them. This is the mechanism that will enable the archipelagic states regime set out in UNCLOS to adapt to the increasing concern in the global arena about maritime security and pollution of the marine environment. Fourth, Regulation No. 37 of 2002 provides greater certainty to the rights and obligations of states exercising the right of archipelagic sea lanes passage. Other states that designate archipelagic lanes can be expected to pass similar legislation, using the Regulation No. 37 as a model. The developments relating to the designation of sea lanes through Indonesia raise issues on the role of the IMO in developing the legal regimes set out in UNCLOS. The procedures with respect to the designation of sea lanes within an archipelagic state give the IMO a role in matters that move beyond safety of navigation and ship-source pollution. The IMO’s role in the designation of sea lanes also involves considerations of maritime security and military uses of the oceans. This raises the question of whether the IMO committees are as prepared as they might be to deal with issues that raise broader issues of maritime security and military use of the oceans. It also raises questions of whether the national delegations to the meetings of the IMO committees are comprised of government officials who fully understand the military and foreign policy implications of the decisions of IMO committees on such issues. In conclusion, the regime set out in Part IV of UNCLOS established a framework that balances the competing rights and interests of archipelagic states and user states. The framework established in Part IV has been further developed through the practice of states and the IMO in regard to the partial designation of sea lanes in Indonesia. Although there are still some unresolved questions and uncertainties, they can be resolved within the legal framework that has been established and developed. Therefore, it seems safe to declare that the legal framework established in Part IV of UNCLOS has proven to be flexible enough

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to meet the challenges posed by the evolving political and security environment in Asia.

Notes 1

2 3 4 5 6 7 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Adopted in Montego Bay, Jamaica, 10 December 1982 and entered into force 16 November, 1994. As of 16 September 2005, 149 States are parties to the Convention. The text of the Convention is available on the home page of the UN Division for Ocean Affairs and the Law of the Sea at (accessed 15 November 2005). UNCLOS, Article 46. UNCLOS, Article 47(1). UNCLOS, Article 49. UNCLOS, Article 52. UNCLOS, Article 53(2). UNCLOS, Article 54, which provides that most of the provisions of transit passage apply to archipelagic sea lanes passage. For example, the right of transit passage is referred to as a freedom in Article 38(2) and the right of archipelagic sea lanes passage is only referred to as a right. Also, Article 53(5) provides that archipelagic sea lanes must be defined by a series of continuous axis lines, and ships and aircraft must not deviate more than 25 nautical miles to either side of those axis lines when exercising their right of passage. There is no such provision for straits used for international navigation. In addition, Article 233 makes it clear that the littoral states may take enforcement measures against a foreign ship in a strait used for international navigation if that ship commits a violation of its laws causing or threatening major damage to its marine environment. There is no equivalent provision with respect to ships in archipelagic sea lanes, although one could argue that an equivalent right is inherent in the sovereignty of the archipelagic state. The absence of an equivalent provision in Part IV has been described as an anomaly which may possibly be an oversight in drafting. See R. R. Churchill and A. V. Lowe, The Law of the Sea, Third Edition, (Yonkers, NY): Manchester University Press, 1999, pp.127–8. UNCLOS, Articles 38(1) and 53(2). UNCLOS, Article 17. UNCLOS, Article 39(1)(c) and 54. UNCLOS, Article 20. UNCLOS, Article 19(2)(e). UNCLOS, Articles 44 and 54. UNCLOS, Article 25(3). UNCLOS, Articles 42 and 54. UNCLOS, Article 39(2) and 54. UNCLOS, Articles 42 and 54. UNCLOS, Article 21. UNCLOS, Article 41. UNCLOS, Article 53(9). UNCLOS, Article 53(1). UNCLOS, Article 53(4). UNCLOS, Article 53(6). UNCLOS, Article 53(2). UNCLOS, Article 53(12). MSC 67/7/2, Government of Indonesia Submission, 30 August 1996. MSC 67/7/3, Government of Australia Submission, 5 September 1996. MSC 67/22, Report of the Maritime Safety Committee on its sixty-seventh session, 19 December 1996, Paras. 7.38–7.41.

132 30 31 32 33 34 35 36

37

38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55

56 57 58 59

Robert Beckman Ibid., Para.7.40; MSC 67/22/Add.1, Annex 16, Terms of Reference for NAV SubCommittee on Adoption of Sea Lanes in Archipelagic Waters. NAV 43/15, Paras. 3.18 to 3.26 and Annex 4. NAV 43/3/10, Adoption of sea lanes in archipelagic waters, normal routes through the Indonesian archipelago, Submitted by the United States, 18 April 1997, p. 1. Ibid., p. 2. NAV 43/3/14, Normal passage routes though the Indonesian Archipelago, Submitted by Australia, 16 May 1997. Ibid. See R. Warner, ‘Implementing the archipelagic regime in the International Maritime Organization’, in D. R. Rothwell and S. Bateman (eds) Navigational Rights and Freedoms and the New Law of the Sea, The Hague; Boston: Kluwer Law International, 2000, pp. 170–87. Resolution MSC.71(69), Adoption of Amendments to the General Provisions on Ships’ Routeing, adopted on 19 May 1998, Report of the Maritime Safety Committee on its sixty-ninth session, Annex 8, MSC 69/22/Add.1 (General Provisions on Ships’ Routeing). Ibid., p. 3. Ibid., pp. 3–4. Ibid., p. 5. On Indonesia’s baselines and maritime boundaries generally, see V. L. Forbes, Indonesia’s Maritime Boundaries, Kuala Lumpur: Malaysian Institute of Maritime Affairs, 1995. MSC 69/5/2, Designation of certain sea lanes and air routes thereabove through Indonesian archipelagic waters, 6 February 1998. Ibid., Para. 5. Ibid.; MSC 69/22, Report of the Maritime Safety Committee on its sixty-ninth session, 29 May 1998, Para. 5.23. General Provisions on Ships’ Routeing, Para. 3.12. General Provisions on Ships’ Routeing, Para. 3.5. Resolution MSC.72(69) Adoption, Designation and Substitution of Archipelagic Sea Lanes, adopted on 19 May 1998, Report of the Maritime Safety Committee on its sixty-ninth session, Annex 9, MSC 69/22/Add.1. SN/Circ.206, 8 January 1999, Guidance for Ships Transiting Archipelagic Waters. Ibid., Annex, p. 1. Ibid., Annex, p. 2. Ibid. SN/Circ.200/Add.1, Adoption, Designation and Substitution of Archipelagic Sea Lanes, 3 July 2003. NAV 43/3/10, Adoption of sea lanes in archipelagic waters, normal routes through the Indonesian archipelago, p. 1. Ibid. State Department telegram to the US Embassy in Jakarta concerning archipelagic claims, Digest of United States Practice in International Law 2003, 8 August 2003, pp. 760–2. Available online at: (accessed 15 November 2005). Ibid., p. 3. Ibid., pp. 3–4. State Department telegram to the US Embassy in Jakarta concerning archipelagic claims, pp. 760–2. Available online at: . The Philippines Declarations of 10 December 1982 and 8 May 1984, the Russian Federation (USSR) Objection of 25 February 1985, the Australia Objection of 3 August 1988, and the Philippines Declaration Concerning the Objection by Australia are reprinted in E. D. Brown, The International Law of the Sea, Brookfield,

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Vermont: Dartmouth, 1994, Volume II, pp. 100–3. For the US objection, see J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims, Second Edition, Boston: Martinus Nijhoff, 1996, pp. 401–3. 60 Report of the Maritime Safety Committee on its sixty-ninth session, 29 May 1998, MSC 69/22, pp. 20–1. 61 L. M. Alexander, Navigational Restrictions with the New Law of the Sea Context: Geographical Implications for the United States, Rhode Island: Offshore Consultants Inc., 1986. 62 See J. L. Batongbacal, ‘Barely skimming the surface: archipelagic sea lanes navigation and the IMO’ in A. G. Oude Elferink and D. R. Rothwell (eds) Oceans Management in the 21st Century: Institutional Frameworks and Responses, Leiden, Boston: Martinus Nijhoff, 2004, pp. 49–68; J. L. Batangbacal, ‘A Philippine Perspective on Archipelagic State Issues’, Maritime Studies, January–February 2002, pp. 18–31. 63 Articles 39(2) and 54, UNCLOS.

Appendix 9.1 Indonesian Archipelagic Sea Lanes, Indonesian Government Regulation Number 37, 2002, Annex VII, June 28, 2002, as circulated by the IMO on 3 July 2003 in SN/Circ.200/Add.1.

10 The US Regional Maritime Security Initiative and US grand strategy in Southeast Asia Christian-Marius Stryken

The United States’ Regional Maritime Security Initiative (RMSI) is part of the US defence transformation process and the new sea basing strategy. The RMSI is politically wrapped in terms of preventing terrorism and piracy, but is part of a much larger transformation of US forward presence. The transformation of US sea power – the Sea Power 21 Concept – aims to transform US grand strategy, and precedes the RMSI introduced in 2004. This chapter, however, will explore the ways in which the RMSI is one element of US adaptation of a grand strategy in Southeast Asia. The introduction of the RMSI caused regional resentment, in particular from Indonesia and Thailand, while Singapore endorsed the initiative. Concerns about US infringement on national sovereignty primarily explain the scepticism. The RMSI was initially reported to involve US patrolling in the Malacca Strait. This reporting was based on a statement by Admiral Fargo before the House Armed Services Committee, United States House of Representatives: ‘You know, we’re looking at things like high-speed vessels, putting Special Operations Forces on high-speed vessels, putting, potentially, Marines on high-speed vessels so that we can use boats that might be incorporated with these vessels to conduct effective interdiction in, once again, these sea lines of communications where terrorists are known to move about and transmit throughout the region’.1 The prospect of patrolling the Malacca Strait was later claimed to be ‘misreported’. Secretary of Defense Donald Rumsfeld reassured that ‘[t]here is no intent, implication, or anything in anybody’s words that should imply or state bases or additional forces in the Straits of Malacca’.2 In developing the RMSI the US will at various stages engage regional and other allies, friends and security partners in different fashions. The RMSI is only in its infancy, and it is likely to take years before the initiative is realized in its full potential.3 The US is aiming to enhance maritime security by strengthening bilateral cooperation between the strait states backed by US ‘technology, training and intelligence-sharing’.4 The US observes a need to enhance communications and information sharing equipment. The initiative is not intended to establish a new treaty based on security relations, but encourages flexible modes of security cooperation in order to strengthen US bilateral relations and enhance support for US security goals. The RMSI is about a lot more than potentially patrolling the

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Malacca Strait. The initiative has implications for the US forward military presence and by implication US hegemonic grand strategy in the region. Although the RMSI aims to address piracy, terrorism and the proliferation of weapons of mass destruction (WMD), the region in which the RMSI is developed is also marked by maritime rivalry. And, as one observer points out, ‘[t]he Southeast Asian states acknowledge that the USA and China are strategic competitors and that Southeast Asia is not able to opt out of this competition’.5 It has been suggested that the strategic maritime rivalry in Southeast Asia is putting the strait states of Singapore, Malaysia, Indonesia and Thailand in a peculiar position. ‘Rising tension between China and America worries the Southeast Asians, and they dread being forced to choose sides’.6 A prevalent US perspective heralds that China ‘is pressing on the vital Malacca Strait’.7 Although the RMSI is politically wrapped in terms of terrorism and piracy, this author would agree with Layne, who suggests that ‘[t]he war on terrorism, in other words, is merely an interlude in international politics, not the harbinger of everlasting global harmony based on acceptance of U.S. primacy’.8 That is the context of the US RMSI initiative and the peculiar situation in which the strait states find themselves. ‘Because Southeast Asia cannot provide a credible deterrent to China, continued U.S. military presence is a precondition for the ASEAN’.9

The instruments of the RMSI There are five elements of the RMSI: First, improving situational awareness and information sharing. This will be pursued by ‘leveraging technology to build and share a clear picture of the maritime environment’.10 Second, improving responsive decision making architectures where ‘domestic and international command and control processes must be fast enough to be relevant’ in order to offer ‘timely responses to maritime threats’. Third, improving maritime interdiction capabilities for situations after a ‘decision has been made to act against an emerging threat’. According to the US initiative, such capabilities would involve ‘law enforcement or customs vessels, but military forces may be needed for more organized threats, especially on the high seas’. Fourth, enhancing coast guards in the region is required to facilitate integration with naval forces. Moreover, national coast guards would need to cooperate more closely with harbour security agencies. Fifth, as the RMSI is aimed at not only employing military force, improving the cooperation of ‘a wide array of agencies and ministries to synchronize all elements of our regional capability’ is essential.11 The RMSI may result in the US providing capacities and capabilities, and these capacities and capabilities could be in the form of cooperative security locations (CSL) onshore. The US Department of Defense (DoD) publications outline a spectrum of basing access. A CSL is the least ambitious basing option, in contrast to a main operating base (MOB) and forward operating site (FOS).12

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In the DoD’s report to the US Congress it is declared: ‘We seek to establish a network of FOSs and CSLs to support the global war on terrorism and to provide multiple avenues for access for contingency operations. Such facilities will also serve to expand US and host-nation training opportunities, helping our partners build their own capacity in areas such as counter-terrorism. Finally, we seek to take advantage of emerging opportunities with allies and security partners who favor expanded practical relationships in support of our global posture goals’.13 The network of desired FOSs and CSLs are addressing the security concerns of the RMSI. However, given the fact that US allies and partners around the Malacca Strait have unequal relations with the US, and perceives US presence differently, it is not likely that the RMSI will develop into CSLs in Indonesia and Malaysia. That is all the more likely for Thailand and certainly Singapore, which according to Harkavy, writing in Naval War College Review, almost has a de facto main operating base at the Sembawang port facility.14 In any case, the RMSI will clearly facilitate practical military cooperation and encourage greater allegiance with the US. Improving situational awareness and information sharing by dissemination of US technology, the creation of responsive decision-making architectures, the improvement of maritime interdiction capabilities and the enhancement of coast guards in the region, which are the aims of the RMSI, will strengthen US regional influence. In spite of the scepticism towards the RMSI, the US is pleased that Malaysia is upgrading its coast guard to patrol the Strait of Malacca better. The deputy prime minister of Malaysia declared: ‘We should definitely expand our cooperation with the US and others, in terms of acquiring and sharing quality intelligence’.15 In May 2005 Malaysia and the US renewed a 10-year logistics cooperation agreement, the Acquisition and Cross-Servicing Agreement (ACSA).16 The US Ambassador to Malaysia, Christopher LaFleur, believes that the agreement will enhance ‘strong military-to-military cooperation between our two countries’.17 Singapore plans to conclude a Strategic Framework Agreement with the US to allow for better ‘structure and organization to our bilateral efforts’.18 Although Indonesia has reservations about the RMSI, the country is welcoming technical assistance that will facilitate the building of capacities to tackle maritime threats such as piracy and terrorism. There are, however, limits to what Indonesia as a non-aligned state can engage in with the US. Deployment of foreign troops in Indonesian waters is out of the question. From the US side, concerns have been voiced that Indonesia is acquiring ‘non-Western military hardware and training that is incompatible with our own. These conditions move Indonesia further away from the US sphere of influence’.19 In July 2005 China and Indonesia established a strategic partnership, which provides technological assistance in developing indigenous Indonesian missiles with ranges of up to 150 kilometres.20 Such developments are not perceived favourably by the US, which has decided to end the deferment of military training with Indonesia.21 The extent to which the RMSI is emphasizing burden sharing or interoperability is important. A study analysing the RMSI, co-sponsored by The Stanley Foundation and the National War College, National Defense University, suggests

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that ‘...Interoperability may be a polite fiction in U.S. security policy in Southeast Asia’, while ‘division of labor may be more effective and more politically tolerable’.22 Opting for interoperability runs the risk of creating antipathy in regional military circles, and may in turn undermine military planning, the report is suggesting. Therefore, it is vital to invite ‘views and needs of Southeast Asian armed forces into joint exercises and other forms of cooperation’.23 Moreover, the report suggests that ‘greater consultation on the purpose, agenda, and activities of joint exercises is needed. Beyond cooperation with allies, these exercises are a showcase for the benefits of cooperation with the United States’.24 The analyst of Asian affairs, M. Valencia, is certainly correct in arguing ‘that three strait states must take the initiative and carry most of the load’ as a startingpoint for the RMSI.25 Already the RMSI has paid off in the sense that the US has succeeded in encouraging ‘regional countries to develop their own regional surveillance and security measures, separate to that of the US. Indonesia, Singapore and Malaysia have agreed on joint maritime security measures while the member countries of the Five Powers Defence Agreement (FPDA) are focusing some of its efforts towards counter terrorism’.26 Another example is the May 2005 joint establishment by Indonesia and Singapore of the Surface Picture Surveillance System (SURPIC).

Premises of US grand strategy and Southeast Asia Forward presence is vital to US grand strategy, which is aiming to maintain hegemony/primacy and offshore balancing. Forward presence is linked to access and basing. Forward presence intends to deter the outbreak of war, position the US to respond rapidly to crises, shape the future security environment through engagement and to demonstrate US resolve in foreign policy objectives.27 The adaptation of US naval strategy intends to make forward presence more flexible, less vulnerable and more deployable in order to respond to a plethora of security threats.28 This is essential to maintain hegemony/primacy and offshore balancing. The objectives of the US Pacific Command (USPACOM) are: ‘Improving the readiness and joint warfighting capability of USPACOM forces is critical to assuring our friends and allies, dissuading military competition, deterring threats against U.S. interests, and defeating an adversary if deterrence fails’.29 As the US is scaling down traditional onshore bases (Japan and South Korea) and planning for Sea Basing of military equipment,30 the US still needs access to onshore military facilities and to prevent anti-access strategies by states in the region,31 which may limit US ability to launch military operations onshore. In scaling down onshore bases and adapting more flexible modes of deployment, the US is seeking to establish ‘access arrangements that allow it to deploy forces regularly to countries in these subregions without compromising their sovereignty’.32 This is vital in order to ensure a ‘degree of interoperability’, which will allow states to participate in ‘operative coalitions’ of the willing in the event of future crises.33 Joint military exercises are also important.34 According to Harkavy, the adaptation of US grand strategy would entail maintaining ‘a very

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limited number of main operating bases’ and increasing ‘forward operating sites and cooperative security locations’.35 The CSL, a greater degree of interoperability and joint exercises are of particular relevance to the RMSI. In order to ensure future US forward presence, ‘link[ing] its capabilities to regional partners will be essential’.36 The prevalence of US ‘coalitions of the willing’ thinking is evident with respect to the RMSI. Harkavy describes ‘the mission determines the coalition’ approach as a system ‘largely devoid of an ideological basis for enmity and friendship, a state of affairs that allows, as was the case in the Europe of the eighteenth and nineteenth centuries, rapidly shifting alliances based on short-term or medium-term expedience and balance-of-power considerations’.37

Regional security and US concerns As pointed out the RMSI is politically wrapped in terms of combating terrorism and piracy, while the initiative is shaped in the context of responding to three out of four threats identified in the Quadrennial Defense Review (QDR) 2005. These are what are termed irregular, disruptive and catastrophic threats. Traditional threats are not addressed by the RMSI.38 Irregular threats are ‘challenges arising from the adoption or employment of unconventional methods by non-state and state actors to counter stronger state opponents. Examples include terrorism, insurgency [and] civil war’. Disruptive threats are ‘future challenges from competitors developing, possessing, and employing breakthrough technological capabilities intended to supplant our advantages in particular domains of operation’. Catastrophic threats are ‘challenges involving the surreptitious acquisition, possession, and possible terrorist or rogue-state employment of WMD or methods of producing WMD-like effects’.39 These wide-ranging security threats illustrate that the RMSI is involving far more than terrorism and piracy challenges.40 On a more detailed level, the US security challenges in Southeast Asia are varied yet interlinked. The US focus on the region is largely a ‘security-centred perspective’, which is underpinned by, in the words of Colin Powell in June 2002, security ‘first and foremost essential to economic growth and political freedom’.41 Among the overall US objectives, guarantees for sea lanes of communication (SLOC) are paramount given the importance for trade and economic development. Achieving this objective is determined on fulfilling overall general US objectives, such as opposing the use or threat of use of force to resolve the competing claims on disputed areas, on which the US adopts no position on legal merits, encouraging diplomatic solutions and a willingness to assist allies, friends and partners.42 Factors challenging SLOCs are ‘the unstable political relationship among regional countries, different interpretation over the freedom of the seas principle, islands’ sovereignty disputes and overlapping maritime jurisdiction claims, the emerging naval build-up, and non-traditional threats such as pollution, piracy, drug-trafficking, etc’.43 For the US, which is a user state of SLOCs in Southeast Asia, tension emerges in its relations with states in the region on the degree of freedom of the seas on the

US grand strategy in Southeast Asia 139 one hand and the concerns of coastal states on the other. Violations of sovereignty, exploitation of marine resources and protection of the environment disturb states in the region.44

US relations with states in the region The patterns of US relations with states in the region range from mutual security treaty allies45 and partners to potential competitors, primarily China. Developing the RMSI will depend on the ability of the US to enlist support and the willingness of allies, friends and partners to participate in the effort. Admiral Tom Fargo, Commander of the US Pacific Command, who launched the initiative has announced: ‘My instinct, it probably ought to start at the Strait of Malacca and work its way out, because the Strait of Malacca is fundamental to the movement of all of the energy through the region’.46 Around the Malacca Strait the US has an ally in Singapore. Thailand is another ally while Indonesia and Malaysia are partners. The different relations vis-à-vis the US is reflected in the response to the RMSI. Singapore perceives terrorism and piracy as major threats to national security. Consequently, Singapore holds uninterrupted trade through the Malacca Strait as its most important security concern. Given the importance of free and safe passage through the strait for the Singaporean economy, Singapore’s list of security concerns is more limited than that of Indonesia and Malaysia. While Singapore encourages a greater role for the US in patrolling the Malacca Strait, Indonesia and Malaysia are concerned that a greater US presence could attract terrorist attacks. The US perception is that Indonesia and Malaysia place threats to, as well as infringements on, national sovereignty at the top of their national security agenda. Therefore, the prospect of US naval patrols in the Malacca Strait is a great concern. Moreover, to Malaysia preventing piracy against foreign ships, arms smuggling and the like are not considered vital national security priorities, while oil spills definitely are regarded as a threat to the environment and the fisheries. Although there is widespread consensus on the importance of fighting international terrorism, the particular emphasis given to the most pressing national security challenges illustrates tensions between regional security priorities on the one hand, and US priorities on the other. In parallel, differing national priorities and interests as well as domestic politics and intra-state tensions would suggest that it is difficult to facilitate a cohesive and inclusive RMSI.

US policy options in Southeast Asia: bilateralism and multilateralism D. Farwick, writing in Peacejournalism, has suggested that: America’s evolving strategy is neither bilateral nor multilateral, except in so far as regional actors are prepared to support U.S. policy goals. With a few exceptions (most conspicuously, Japan) it is designed primarily to enlist security partners when and where needed, not to develop an integrated strategy based on a more continuous mutuality of interests.47

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This author would agree that the main motive of US policy certainly is to enlist support from allies, friends and partners for US security goals. Yet the ways in which the US is pursuing security cooperation in the context of the RMSI, the level of bilateralism and multilateralism truly matter to the relations among the states in the region and the level of cooperative security in the region. It has been argued according to one analyst that the regional security order in Asia is a ‘quasi-hegemonic order, founded upon U.S. military preponderance but without the conditions to ensure its legitimation’.48 Part of this legitimacy deficit stems from concern in Southeast Asia that ‘the United States does not approach the region collectively and that bilateralism still dominates the U.S. approach’.49 The US should consider engaging allies and partners less top-down and more based on an egalitarian platform. This presents the US with a policy dilemma. On the one hand, the US has encouraged greater regional cooperation, while on the other it is developing bilateral cooperation with selected states, which might prove more efficient given the relatively weak structures of regional security cooperation. The ways in which the US go about developing the RMSI will affect the legitimacy of the initiative. It is likely that the RMSI will be perceived as a useful and legitimate initiative by most states in the region if the US is supporting and encouraging a strengthening of the ASEAN Regional Forum (ARF), rather than emphasizing developing bilateral cooperation that creates frictions among the states in the region concerning the regional role of the US. There is a prevalent perception that the ARF has not proved an effective instrument of confidence building and cooperative security. Cooperation in the context of ASEAN has underlined the need for regional solidarity and emphasized the importance of excluding the influence of outside powers in the region. Many states in Southeast Asia would like the US to approach the region collectively, rather than bilaterally to favoured nations.50 In sum, for the US there exists a multilateral option in the context of the ARF, which, however, is devalued by the pattern of self-differentiation vis-à-vis the US. By self-differentiation this chapter defines practices of distinct relations to the US, that is intimate relations on the one hand or keeping the US at arms length on the other hand. With respect to maritime security, excluding outside influence in the region is a primary objective for Indonesia and Malaysia, while Singapore is increasingly cooperating with the US. Singapore’s concern about the two larger neighbours is one reason for its receptiveness to US influence. Moreover, Singapore often refers to deficiencies in Indonesian and Malaysian maritime security efforts as a pretext to invite external influence.51 In spite of the general ASEAN reluctance to invite external powers, invitations of external powers could be based on ‘a desire to create a more complex balance of power in the region’.52 Resulting from regional concerns about rising Chinese naval power, opinion ‘towards U.S. presence in the region is ambiguous’.53 Given this ambivalence stemming from the influence of external powers, this offers leverage for the US to nurture relations to states in the region, based on the practice of self-differentiation in the region and flexible modes of US cooperation

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with selected states to accommodate US and individual state’s security agendas. On the other hand, for the states in the region: the best way for the ASEAN countries to check unwanted intervention by any major external power (the US, China, Japan, India and possibly South Korea), would be to invite them all on a limited scale, so that the external powers would balance among themselves. Such a move might put ASEAN governments in the driver’s seat when it comes to multilateral security cooperation in the Straits: outside powers would play supporting roles and leave enforcement to the littoral states themselves.54 On this particular point ASEAN seems to be lacking cohesion. However, although the three Malacca Strait states have differing strategic interests and perceive US influence differently, there is certainly scope for the US to use the RMSI to offer supporting roles, while the littoral states enhance enforcement of maritime security individually and jointly in the Malacca Strait. Indonesia and Malaysia oppose permanent basing of the US fleet in the strait, but welcome ‘bilateral assistance from and joint training with U.S. forces that upgrade local military capabilities’.55 Opting for bilateral or multilateral approaches is closely related to the issue of US legitimacy. Adoption of a multilateral approach in order to enhance regional security cooperation in the context of the ARF could help diminish the US legitimacy deficit. Certainly long-term political benefits and stability conducive to economic progress may result from active efforts to encourage enhanced regional security cooperation. Although ASEAN and the ARF are already a proof of ability to invest in greater regional cooperation, these institutions are relatively weak in terms of establishing binding structures of cooperation. European integration does not serve as a useful model for Southeast Asia given the difference in history and not least the decades of effort required to move beyond the declaratory stage of European security cooperation. Southeast Asia has to find its own path, and the US may employ the RMSI and other initiatives to encourage enhanced cooperation in the region. US influence would probably get greater approval across the region if the regional states could approach the US as a more united configuration of states. Adopting this option, however, runs counter to prevalent trends in US foreign policy thinking. In spite of the rhetorical US endorsement of greater regional cooperation, the design of the RMSI seems clearly to prioritize developing flexible modes of cooperation with states in the region. This allows for self-differentiation among states in the region that may undermine greater regional cooperation and probably create frictions in the region. Such frictions are neither beneficial to the level of maritime cooperation required to address common challenges, nor productive in order to reduce tensions between China and the US over influence in the region. Importantly, however, ‘there are obvious advantages to bilateralism for short-term policy. For example, it allows a quicker response to crises’.56 On the other hand, the same report suggests, ‘the United

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States needs to understand that investing more in multilateralism could reap rewards in stronger cooperation among Southeast Asian states’.57

Conclusions The US focus on the region is largely a security-centred perspective. The US is using the RMSI to enhance its influence in the region. The different regional responses to the RMSI are a challenge to US influence. Should the US challenge the reluctance in the region for interventions of external powers this could create frictions between the strait states, which in turn may prove counter-productive to enhancing maritime security in the region. As long as the US respects the principle of non-violation of sovereignty, which is a particular concern to Indonesia and Malaysia, the US can expect pragmatic cooperation of all states aimed at enhancing maritime security. Greater legitimacy could be achieved by encouraging multilateral cooperation within the region, and US participation in multilateral cooperation. Adopting this approach would prove conducive in strengthening interoperability between regional navies and the US, and to promoting greater regional security cooperation in the context of the ARF. A regional willingness to venturing down this path cannot be taken for granted. It would require a determined US effort that is not compatible with adopting the flexible mode of cooperating with willing and able states that is characteristic for the current US administration. It is more likely, however, that the US will structure the RMSI on flexible bilateral relations based on the practice of self-differentiation among states in the region. That would probably prove more effective in terms of addressing security challenges in the short run, but not promote stronger cooperative and multilateral security relations in the region.

Notes 1

T. Fargo, ‘Testimony of Adm. Tom Fargo, USN Commander, US Pacific Command Before The House Armed Services Committee United States House of Representatives’, Q&A Session, 31 March 2004. 2 D. Rumsfeld, ‘Geography, host attitude affect troop base strategy, Rumsfeld says’, 7 June 2004. Available online at: (accessed 1 May 2006). 3 M. Richardson, ‘Maritime plan aims to make the region’s waters secure’, The Straits Times, 26 April 2004. 4 M. J. Valencia, ‘Ensuring Asia’s maritime safety’, Far Eastern Economic Review, 14 October 2004. 5 Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’, Security Dialogue, vol. 34, no. 1, 2003, pp. 11–24. 6 J. E. Auer and R. Lim, ‘The maritime basis of American security in East Asia’, Naval War College Review, vol. LIV, no.1, Winter 2001. Available online at: (accessed 1 May 2006). 7 Ibid.

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C. Layne, ‘Offshore balancing revisited’, The Washington Quarterly, vol. 25, no. 2, Spring 2002, pp. 233–48. This article also offers a more theoretical definition of primacy and offshore balancing. Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’, p. 23. This and the following quotations explaining the five elements are from T. Fargo, ‘Responding to Transnational Threats’, APCSS Biennial Conference, Ilikai Waikiki Hotel Ballroom, 16 June 2004. Available online at: (accessed 1 May 2006). The design of the RMSI is compatible with the US global defence posture. The Department of Defense outlined five criteria of the posture in a report to the US Congress in September 2004. First, relationships aim to ensure ‘interaction with allies and partners at all levels’. Second, activities with allies for ‘training, exercises, and operations’. Third, provide facilities ‘where forces live, train, and operate, and where they preposition materiel’. Fourth, establish legal arrangements as a ‘framework of presence, including status-of-forces agreements, both bilateral and multilateral’. Fifth, aiming at ensuring global sourcing and a surge for a ‘global-force management system for power projection’. See ‘Strengthening U.S. Global Defense Posture’, Report to Congress, Department of Defense, Washington, D.C., September 2004, pp. 7–8. Available online at: (accessed 1 May 2006). Main operating base: ‘A MOB is an overseas, permanently manned, well protected base, used to support permanently deployed forces, and with robust sea and/or air access.’ Forward operating site: ‘A FOS is a scalable, “warm” facility that can support sustained operations, but only with a small permanent presence of support or contractor personnel. A FOS will host occasional rotation forces and may contain pre-positioned equipment’ (http://www.eucom.mil). Harkavy suggests that the Sembawang port facility in Singapore ‘may be approaching, de facto, the status of a main operating base’. See R. E. Harkavy, ‘Thinking about bases’, Naval War College Review, vol. 58, no. 3, Summer 2005. Available online at: (accessed 1 May 2006). ‘Strengthening U.S. Global Defense Posture’. Harkavy, ‘Thinking about bases’. S. Ramachandran, ‘Divisions over terror threat in Malacca Straits’, Asia Times, 16 June 2004. ‘Malaysia and US renew defence pact, discuss Malacca Strait security’, AFX, 9 May 2005. J. Singh, ‘U.S., Malaysia extend defense agreement’, Associated Press, 9 May 2005. Available online at: (accessed 1 May 2006). T. Fargo, ‘Responding to transnational threats’. Ibid. ‘Chinese missile aid for Indonesia: how strategic is a partnership?’, IISS Strategic Comments, vol. 11, issue 6, August 2005. D. Isenberg, ‘US, Indonesia almost back in step’, Asia Times, 9 September 2005. Available online at: (accessed 1 May 2006). US Security Relations with Southeast Asia: A Dual Challenge Southeast Asia in the Twenty-First Century: Issues and Options for US Policy, Report Co-sponsored by The Stanley Foundation and National War College, National Defense University, 11–12 March 2004, Washington, DC., p. 2. Available online at: (accessed 1 May 2006). Ibid. Ibid. M. J. Valencia, ‘Ensuring Asia’s maritime safety’.

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Christian-Marius Stryken A. Borgu, ‘Maritime terrorism: an Australian perspective’. A presentation to the Workshop on Maritime Counter-Terrorism of the Observer Research Foundation, New Delhi, 29–30 November 2004, p. 9. Available online at: (accessed 1 May 2006). S. J. Tangredi, ‘The fall and rise of naval forward presence’, Proceedings of the United States Naval Institute, vol. 125, issue 5, May 2005, p. 4. These include irregular threats, catastrophic threats, traditional threats and disruptive threats. Fargo, ‘Responding to transnational threats’. Sea Basing refers to ‘enhanced operational independence and support for joint forces provided by networked, mobile and secure sovereign platforms operating in the maritime domain’ (R. O’Rourke, ‘Transform and roll out: the USN’s approach to change’, Jane’s Navy International, 1 April 2004). The US is considering using sea power autonomously in order to overcome regional anti-access and denial measures. The US Sea Power 21 Concept and the naval transformation foresee limited reliance on offshore support. The Sea Power 21 concept intends to transform the navy from prosecuting ‘war at sea’ to launching ‘war from sea’. ‘Sea Power 21’ is based on three primary areas; Sea Strike, Sea Shield and Sea Basing. (A. Koch, ‘US Navy outlines vision for Sea Power 21 concept’, Jane’s Defence Weekly, 11 December 2002). Sea Strike intends to apply ‘expanded power projection that employs networked sensors, combat systems and warriors to amplify the offensive impact of sea-based forces’ so as to make possible ‘the projection of precise and persistent offensive power’. ‘Sea Shield refers to global defensive assurance produced by extended homeland defence, sustained access to littorals and the projection of defensive power deep overland’ (R. O’Rourke, ‘Transform and roll out: the USN’s approach to change’). Anti-access – also referred to as area denial, and in its original conception, as antinavy strategies – is the ability to deny US forces entry to a region to conduct combat operations. See Tangredi, ‘The fall and rise of naval forward presence’, p. 4. T. Cliff and Wormuth in ‘Transforming US overseas military presence: evidence and options for DoD’, Volume I: Main Report, IDA Paper P-3707, Institute for Defense Analyses, July 2002, pp. 20–1. Available online at: , (accessed 1 May 2006). R. A. Cossa, ‘U.S. Asia policy: does an alliance-based policy still make sense’, Issues & Insights, no. 3–01, Pacific Forum CSIS, Honolulu, September 2001, p. ix. L. T. Lee, ‘China, the USA and the South China Sea conflicts’, Security Dialogue, vol. 34, no. 1, March 2003, p. 35. Harkavy, ‘Thinking about Bases’. S. E. Wimbush, ‘Maritime security in East Asia in 2025: critical uncertainties’, Paper prepared for the Center for Strategic and International Studies – American-Pacific Sealanes Security Institute conference on Maritime Security in Asia, 18–20 January 2004, Honolulu, p. 1. Harkavy, ‘Thinking about bases’. Traditional threats ‘are challenges posed largely by states employing legacy and advanced military capabilities and recognizable military forces, in long-established, well-known forms of military competition and conflict’, see: A. K. Cebrowski, ‘4Trends in Security Cooperation‘, Office of Force Transformation, Department of Defense, slide 6, 15 June 2004. Available online at: (accessed 1 May 2006). K. Gudgel and J. Spencer, ‘The 2005 Quadrennial Defense Review: Strategy and Threats’, WebMemo, Heritage Foundation, 20 April 2005. Available online at: (accessed 1 May 2006). See also Cebrowski, ‘Trends in security cooperation’.

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The RMSI is also a platform for the US Proliferation Security Initiative (PSI). M. J. Montesanto and S. H. Quek, ‘The United States in Southeast Asia: deepening the rut?’ Orbis, vol. 48, no. 2, Spring 2004, p. 321. Lee, ‘China, the USA and the South China Sea conflicts’, p. 33. G. Ji, ‘SLOC security in the Asia Pacific’, Center Occasional Paper, Asia-Pacific Center for Security Studies, Honolulu, February 2000. S. S Park, ‘New maritime order in the Asia Pacific toward the 21st century’, Paper for the 12th International Conference of SLOC Studies, Seoul, 6–7 April 1999. The US is allied to Australia, Japan, Korea and Singapore in the nature of mutual security treaties, which involves standing commitments and operational geo-strategic interests. T. Fargo, ‘Military operations and law conference’, Victoria, British Columbia, 3 May 2004, p. 44. Available online at: (accessed 1 May 2006). D. Farwick, ‘America’s alliances in East Asia. Purposes and prospects’, Peacejournalism, issue 8, June 2005. Available online at: (accessed 1 May 2006). A. Acharya, ‘Terrorism and security in Asia: redefining regional order?’, Working Paper No. 113, Asia Research Centre, Murdoch University, Perth, Western Australia, October 2004. Available online at: (accessed 1 May 2006). US Security Relations with Southeast Asia, p. 4. Ibid. Y. Sato, ‘Malacca Straits security reflects hazy dividing line’, Asia Times, 14 June 2004. Available online at: (accessed 1 May 2006). Ibid. Ibid. Ibid. ‘Malaysia has participated in joint naval exercises with the United States. And Indonesia’s lack of participation is not the result of its reluctance, but of US sanctions imposed after human-rights violations were committed by the Indonesian military in East Timor’, Ibid. US Security Relations with Southeast Asia, p. 4. Ibid., p. 1.

11 Satellite-based tracking of ships as global crime control ISPS Code, AIS, SSAS and LRIT Jan Georg Christophersen

The purpose of this chapter is to discuss how satellite-based electronic tracking of ships may prevent crime against and by the shipping industry. The twenty-first century requires new capabilities and a reconfiguration of existing control capabilities against crime at sea. One challenge will be to share data and alike in order to provide a good and effective maritime security for all nations. Modern shipping requires that all flag nations fulfil their international obligations and thus promote good security globally. Furthermore, there should be international cooperation to ensure free and unhindered global tracking of ships. Security for people, ships and the environment is very important. In the same way, education and training are important so that the shipping company has the right people, and that the international shipping industry continues to prepare them for their tasks. Security also involves the flag state to give stable and viable conditions with regard to control. This chapter argues that there is considerable scope for further improvement by using global satellite tracking.

The International Ship and Port Facility Security Code (ISPS Code) In December 2002, slightly more than a year after the 11 September 2001 attacks, the International Maritime Organization (IMO) adopted the ISPS Code. The code is incorporated as a special security chapter (XI-2) in the International Convention for the Safety of Life at Sea (SOLAS), and entered into force on 1 July 2004.1 By entering the security chapter into SOLAS, the code achieves mandatory status without ratification delay. The code is valid for cargo vessels of 500 gross tonnages and above, and for passenger vessels and mobile offshore drilling units that are engaged in international trade. Security measures for less than 500 gross tonnage vessels will be disseminated at the discretion of the individual member states. The IMO solution is practical if one looks to the vast number of fishing vessels, small boats and the variety of usages. However, when faced with recent terror attacks and armed robbery at sea, it seems that the time has come to introduce security measures for less than 500 gross tonnage vessels as well.2 The argument goes that even small ships and boats, used strategically and in the right location, at the right time, could have a major disruptive effect on human life, the environment and the local, regional and international shipping

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industry. Therefore finding ways to handle successfully the security question for non-SOLAS vessels is a vital and necessary component in addition to the work already undertaken. In essence, the code takes the approach that ensuring the security of ships and port facilities is a risk management activity and to determine what security measures are appropriate, an assessment of the risk has to be made in each particular case. The purpose of the code is to provide a standardized, consistent framework for evaluating risk, enabling governments to offset increases in threat with improvements regarding the vulnerability of ships and port facilities through the determination of appropriate security levels and corresponding security measures. To begin the process, each contracting government ought to conduct ship and port security assessments.3 Security assessments will have three essential components. First, they must identify and evaluate important assets and infrastructures whose proper functioning is critical to the port facility as well as to those areas or structures that, if damaged, could cause significant loss of life or damage to the port facility’s economy or environment. Second, the assessment must identify the actual threats to those critical assets and infrastructures in order to prioritize security measures. Finally, the assessment must address the vulnerability of a port facility by identifying its weaknesses in physical security, structural integrity, procedural policies, communications systems, transportation infrastructure, utilities and other areas within a port facility that may be a likely target. Once these assessments have been completed, the contracting government can accurately evaluate risks. The risk management concept is embodied in the code through a number of minimum functional security requirements for ships and port facilities. Because each ship (or class of ships) and each port facility presents different risks, the method in which they meet the specific requirements of the code will be determined and eventually approved by the control institutions or the contracting government, as the case may be. In order to communicate the threat at a port facility or ship, the contracting government will set the appropriate security level. Security levels 1, 2 and 3 correspond to normal, medium and high threat situations respectively. Only states that are contracting governments to SOLAS have a legal obligation to comply with the requirements of the ISPS Code and to submit information to the IMO. The organization agreed to improve the overall maritime security by introducing the ISPS Code by 1 July 2004. The biggest change since 1 July 2004 is that the contracting governments to the 1974 SOLAS Convention are able to exercise control over ships formally in accordance with the provisions of the security chapter (XI-2) and of the ISPS Code. The new requirements form the international framework through which governments, ships and port facilities can cooperate and deter acts that threaten security in the maritime transport sector. The new regulatory maritime security regime will have a huge impact on those port facilities and ship operators who had not already adjusted to the increased threat to maritime security in the current climate. They will need to catch up, according to the rules and guidelines in the ISPS Code. For those governments and ship operators who have implemented

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enhanced security regimes, the ISPS Code standardizes globally the security measures. The point is that there is a very real threat. We have already seen attacks on maritime infrastructures elsewhere (such as in Iraq and Yemen). The whole idea of the ISPS Code is to reduce the vulnerability of the industry to attack, thus countering the threat and reducing the risk. A great deal of work has been done in a short time to implement the ISPS Code. However, the work of shipping companies and the port industry are no where near consistent. There are potential commercial benefits to the maritime industry in implementing the code. It seems clear that, in the end, implementation of the code should provide considerable cost–benefit for the port industry as a whole and for individual ports. By putting in place an effective security regime,4 ports will be able to continue to participate fully in global trade since the potential economic consequences of a major security breach, which might result in disruption or even port closure, are serious indeed. To date it appears that ships generally comply with the security requirements of the ISPS Code just as well as they do with all other regulations. However, if the seafarer is asked, he will consider piracy and armed robbery to be the most pressing security problems. The main international focus is increasingly directed towards supply chain security. The ISPS Code is dealing with a part of this, which means that no one knows what the full implications for the ISPS Code on for example the World Customs Organization (WCO) framework will be. The ISPS Code cannot be effectively enforced because it depends on the efficiency of the flag state in establishing control regimes. Some flag states even lack an administration in place. Part of the problem lies in the ‘flags of convenience’, which today has evolved into a crude form of jurisdiction shopping. The IMO is attempting to establish a system of flag state control but these will be voluntary and only as effective as the flag state is prepared to make them, because the IMO has no enforcement power of its own. Lenient regulations of enforcement have caught the IMO in a vicious cycle because third world countries have increased their power in the IMO (founded by membership fees based on the size of a member country’s ‘fleet’). These countries then use their power to keep the international standards from rising too high, and the substandard fleet continues to do business.

The Automatic Identification System (AIS) The AIS is a maritime vessel traffic system imposed by the IMO,5 designed to be capable of providing information about the ship to other ships and to coastal authorities automatically. The system broadcasts position reports and short messages with information about the ship and the voyage. More specifically, the regulation requires that the AIS shall provide information – including the ship’s identity, type, position, course, speed, navigational status and other safety-related information – automatically to appropriately equipped shore stations, other ships and aircraft. Using frequencies in the maritime very high frequency (VHF) band,6

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the coverage is similar to other VHF applications, and is essentially dependent on the altitude of the antenna. For ship-to-ship communications, the range is typically 20 nautical miles and ship-to-shore up to 40 nautical miles. According to the International Association of Maritime Aids to Navigation and Lighthouse Authorities (IALA), the purpose of the AIS is ‘to improve the maritime safety and efficiency of navigation, safety of life at sea and the protection of the marine environment’. Regulation 19 of SOLAS Chapter V, ‘Carriage requirements for shipborne navigational systems and equipment’, sets out navigational equipment to be carried on board ships, according to ship type. The regulation requires AIS to be fitted aboard all ships of 300 gross tonnes and upwards engaged on international trade. To be fully implemented on 1 July 2007, the system will cover all ships with the exception of cargo ships and fishing vessels in national trade built before 1 July 2002 of less than 10,000 gross tonnes. However, nationally and internationally there is also a need for a long-range identification and tracking service. A space-based AIS receiver in low earth orbit and a gateway to the existing infrastructure will give an excellent opportunity for large-area ocean surveillance at a small investment.7

The Ship Security Alert System (SSAS) The SSAS regulations were adopted by the IMO to enhance maritime security in response to the asserted increasing threat from terrorism 8 and piracy.9 After 1 July 2004, most deep-sea passenger and cargo vessels must be fitted with a device that can send an alert message containing the ship’s identification (ID) and position whenever the ship is under threat. The distress message must be activated covertly from a switch on the navigation bridge or other shipboard locations, and transmitted only to the designated authority without being received by other ships or raising an alarm on the ship under attack. The demands of the SSAS exist in SOLAS (Reg. XI-2/6), as standard performance (Res. MSC.147 (77)) and as guidelines (MSC, Circ.1072). Unfortunately, the demands are incomplete because rules have not been laid down for the approval of the type of equipment. There are reasons to believe that false alarms could be a problem for the SSAS equipment. Therefore, as soon as an alert message is received, the authority and the company have a duty to control the substance of the received message.10 The following vessels are covered by the regulation and are required to have an SSAS installed: passenger ships, including high-speed passenger crafts since 1 July 2004; oil tankers, chemical tankers, gas carriers, bulk carriers and highspeed cargo vessels of 500 gross tonnes and upwards, no later than 1 July 2004; other cargo vessels of 500 gross tonnes and upwards, no later than first survey on or after 1 July 2006. The requirements are specified in the amendments to SOLAS, chapter XI, Annex 6 (December 2002). Fittings and installation can easily be put in place. The SSAS is designed to raise alarm ashore in reaction to security threats or security incidents by notifying the ship’s flag state and should do so without

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alerting ships or coastal states in the vicinity or giving any indication on board. This is based on the recognition that security is political and requires different responses to distress or emergency on board. The SSAS is also able to continuously monitor a ship’s location back to the fleet-operating company at customer-defined intervals. The precise location and status of a ship in a fleet can be tracked on any desktop or laptop computer connected to the Internet. Security is ensured with a user name and password login. The fleet managers can also interrogate the satellite terminal on board the ship for a position report, or remotely change the tracking frequency. The message shall be transmitted to more than one recipient, in order to enhance the resilience of the SSAS. The authority should ensure that its designated proper recipients of SSAS are capable of processing the information received with the highest priority. This may require the recipients to have a twenty-four hours, seven days a week system of operation in place. The IMO has defined a set of mandatory requirements to improve the security of ships. The SSAS shall provide ships with two alarm buttons, which can be activated in case of a piracy or terrorist attack. The alarm is a covert signal, which will have no sound and no flashing lights so that it is in no way obvious to any intruders on board the ship. Ships fitted with SSAS shall maintain the system in operation at all times except where international agreements, rules or standards provide for the protection of navigational information. The majority of the SSAS alarms have been false messages. Therefore, many coastal states and parts of the shipping industry have questioned the effectiveness of SSAS as a security means. Actually, in parts of the world, there will be no reaction to an SSAS alert message whatsoever, and that seems to remain the situation in the near future. One of the reasons is that the United Nations Convention on the Law of the Sea (UNCLOS)11 has not solved the conflict between coastal states and maritime user states. Insufficient coast guard and naval capacity to handle a real terrorist or piracy situation is also an important reason.

Long-range identification and tracking (LRIT) The international society is looking for systems to control the complete international maritime fleet. In that respect, the IMO has started work on a satellite-based system for LRIT.12 According to current plans, an LRIT system will enable a central unit to track all ships subscribing to the system wherever these ships are sailing. The intention is to place equipment on ‘all’ ships programmed to send position reports systematically to a central database. This means that the absolute minimum of information to be submitted by the participating ships will be as follows: the identification of the ship, the position of the ship and the time when the position was recorded. The rate of updating each ship’s position has been discussed at various levels at the IMO. From the discussions so far, there may be a need for having a variable reporting rate determined by criteria not yet decided. Another question raised at an early stage concerned the extent of coverage for coastal states in tracking passing ships not calling at any of its ports. The IMO is

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also currently discussing revision of their Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) to allow interdiction on the high seas of a foreign ship which is suspected of involvement in terrorist-related activities. The preliminary drafted SOLAS regulation developed by the Sub-Committee on Radiocommunications and Search and Rescue (COMSAR) reporting rate is described as a one-hour reporting rate when the ship is less than 300 nautical miles from the coast of any state, and once every four hours when outside this range. The central database shall distribute data to the right receiver. The legitimate receiver is committed to use information to ward off an attack from pirates and terrorists, protect against environmental catastrophes, and in general increase safety at sea. In broad terms, LRIT provides the same information and capabilities as the AIS for identifying and tracking ships at sea.13 However, the range of the AIS is limited within the VHF range and the LRIT is planned to provide a global coverage. In terms of international implementation, the current plan is to include a regulation in SOLAS, chapter XI-2, where LRIT will be introduced as mandatory for all ships that are required to comply with the ISPS Code. This is the road now taken. The Maritime Safety Committee (MSC) met in London for its seventy-seventh session in May–June 2003 to discuss the subject of LRIT. It was agreed that as well as flag states and port states, coastal states have an interest in vessels that are exercising the right of innocent passage past their coast. However, there were different views on how far off their coast this interest might extend. The United States maintained that since the purpose of LRIT is to give a coastal state sufficient time to evaluate and if necessary respond to a security risk posed by a ship off its coast, the distance should be set at a level that achieves this purpose. From the US side it was argued that this required the distance to be 2,000 nautical miles. Other suggestions ranged from 50 to 1,000 nautical miles. The Norwegian position on this occasion was 400 nautical miles. It was suggested that since from the technical point of view a system would be designed to enable flag states to track vessels under their jurisdiction anywhere in the world, port states and coastal states should be allowed to decide for themselves how far off their own shore they wish to track vessels. However, given that in certain cases, the coastal state itself could pose a security risk, some delegates felt that it was important that flag states have the right to restrict or even deny LRIT access to their vessels if they saw fit. In this respect, the MSC concluded at its seventy-eighth session in May–June 2004 that the SOLAS contracting governments were not yet ready to discuss this aspect. However, once this aspect was resolved, many of the remaining pending issues, including the availability of suitable technologies, were expected to fall into place. The MSC considered the issue and agreed that for the time being there was insufficient data to make it possible to carry out an impact assessment. Various proposals on expanding the information to be submitted by each ship beyond the minimum described above have also been put forward on numerous occasions. The outcome of the seventy-ninth session of the MSC14 was that the purpose and scope of LRIT was discussed based on a document submitted by

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Australia on the subject.15 The Australian view is that the LRIT system established for security purposes could also be used for other ship-tracking systems sponsored by the IMO, such as rescue purposes, ship-reporting systems for navigational safety and pollution and potentially vessel traffic services and so on.16 The Maritime Environment Protection Committee’s (MEPC) fifty-third session agenda item 11 also presents viewpoints on the use of LRIT for environment protection.17 It seems that the work in the IMO has recently been focused on ‘filling up the gap’ in the rules. A lingering question of particular importance has been whether LRIT can be brought to also include small ships under 500 gross tonnes, fishing vessels and small boats. One serious obstacle is that the fishing fleet is the responsibility of The Food and Agriculture Organization of the United Nations, not an IMO responsibility. Another one is the conflict between maritime industry interest to preserve flags of convenience and the restrictions the fishing industry wish for. In addition to ID, position and time, digital LRIT data will be able to provide an important source of real-time information, numerical weather prediction, as well as climate monitoring and research. This will allow major improvements in the forecasting of severe weather in a very timely manner. The ship’s course and the estimated time of arrival (ETA), too, are of obvious interest because they may show deviations from its route. Another fundamental question is the functional requirements for LRIT. The issue of confidentiality of the information is an important question that must find its solution. The information controlled could be both security-related and commercially sensitive. Ownership of the information and responsibility for its protection are issues for discussion, and are very sensitive areas for enforcement procedures. A solution must be found as to whether there should be a data centre providing information or whether the centre set up should act only as a means to link contracting governments with tracking services. If the coordinating body were not collecting the data, it would be depending upon others to provide the information. In that case, one should be aware that several flag states do not have the capability to provide LRIT data. An international body could have an oversight or operational control role, rather than actually operate the centre. The ninth session of COMSAR was held in February 2005, and continues the development of the draft of the proposed new regulation of SOLAS chapter (XI-2) on LRIT. Despite the proposed preliminary draft presented, there are still questions to be solved with regard to special measures to enhance maritime security. Discussion will continue on the basis that the only information required from a security point of view is the identity of the ship, its location and the date and time of the transmission. It is agreed that any system developed should be capable of preventing the transmission of false information. That it should be capable of filtering out named coastal states when requested by the flag state, and that it should be capable of being switched off on board when the flag state feels it necessary. It is obvious, though, that a possibility to switch off the system will make LRIT less interesting as a security system. Nevertheless, there are ethical questions to be solved. Among others, there must be a solution to the storage capacity for data, and for how long the information

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shall be stored. One should bear in mind that today it is cheaper to store than to delete data. The eighty-first session of MSC held in London on 18 May 2006 proposed several amendments to the regulations under SOLAS, which if finally adopted will represent ‘breakthroughs’ both with respect to the size and the distance from the coastal states concerned of ships included under LRIT.18 According to the agreed amendments, the obligation to transmit LRIT information shall apply to passenger and cargo ships, including high-speed crafts, down to 300 gross tonnages and to mobile offshore drilling units. In addition, any contracting government shall be entitled to receive LRIT information from ships flying the flag of other contracting governments when the ships are navigating closer than 1,000 nautical miles off its coast. The amendments, however, do leave an opening for ships in ‘exceptional circumstances’ out of consideration for their safety or security, being excepted from the LRIT reporting required. By 1 July 2007, the amendments will be deemed having been accepted as part of the regulations under SOLAS, absent any objections from a sufficient number of contracting governments. The new SOLAS regulations would then enter into force on 1 January 2008, and with respect to the transmission of LRIT information by ships, start becoming effective as from 31 December 2008. Moreover, governments shall bear all costs associated with any long-range identification and tracking information that they request and receive. Authorities shall not impose any charges on ships in relation to the long-range identification and tracking information they may seek to receive.

Potential use of long-range identification and tracking With regard to the potential use of LRIT for pollution prevention purposes, four types of applications could be mentioned. First, when pollution of the sea has been detected, LRIT can be used to establish which ship – or ships – has been responsible for the pollution. Second, when entering an area in which mandatory reporting of entry by each ship is required, LRIT may be used for automatic reporting. Third, LRIT can also be used to establish whether a given ship has been sailing a route where ballast water exchange should not have been performed. And lastly, LRIT can be used to provide statistical data of emission of gases from international shipping. It would be beneficial for safety, security, pollution prevention and traffic control to also include information on the next port of call and the ETA. Such information would enable costal states to respond as early as possible regarding ships suspected of being a potential threat of any kind. The right of a state to receive LRIT information from ships will change as soon as this state becomes a port state. It should also be taken into account that LRIT could be used in traffic control in narrow straits such as the English Channel, as well as the Gibraltar and Malacca Straits. Initiatives have been undertaken from various parties to enhance maritime security through adopting international standards as a basis for national standards. One

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solution has been launched by the International Organization for Standardization (ISO), offering a combined solution of tracking of ships and other areas of control, such as transparency of cargo movement throughout the entire supply chain and control of seafarers’ ID documents. Discussions in the IMO on the use of LRIT for a wider range of purposes have been going on for a while. When LRIT information is to be transmitted, the responsibility must naturally, from a state security perspective, be with the flag state and not be the decision of a company or a ship. To use LRIT as a tool for significantly enhancing safety and security in the shipping industry is important. There is a need for improving statistics on pollution of sea and air from ships, shipwreck, navigation failure, ship ownership, seafarers’ ID, cargo tracking and so on.

Maritime terrorism – how real is the threat? Terrorist incidents on the high seas or maritime interests are neither a new nor prevalent activity. For more than two decades, there have been warnings from security experts and policy analysts against attacks on maritime targets. Until 11 September 2001, attention has been occasional and cursory.19 Vessels have been terrorist targets and this started with the capture of the cruise liner Santa Maria in La Guaria, Venezuela on 20 January 1961. The terrorist hijacking of the passenger liner Achille Lauro on 17 October 1985 off the coast of Egypt threw new light on the possibility of maritime terrorism. These infamous incidents led the IMO to frame a document of international law regarding such incidents. In 1988, in Rome, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) was adopted, entering into force in March 1992. Traditionally, terrorists have mainly used ships for transporting arms, equipment and personnel. Clandestine movement of terrorist goods is probably still the most pressing problem. Furthermore, there have been very few attacks against ships and none against passenger facilities in ports, as often feared. Protecting maritime commerce from attack or exploitation by terrorists is critical to the future security of all nations. Despite few attacks on maritime targets so far, since September 11 maritime terrorism has become a focus, if not a fascination, of numerous news reports and policy research agendas. The USS Cole was attacked in Aden, Yemen in October 2000, the French tanker Limburg two years later off the coast of Yemen, and Katyusha rockets were fired at the USS Ashland in Aqaba, Jordan, 19 August 2005. In February 2004, approximately 200 passengers and crew were killed in a fire aboard the Philippine Superferry 14 caused by the explosion of an incendiary bomb in a television set.20 Terrorists have also attempted to infiltrate the global container supply chain. In October 2001, a potential terrorist was discovered in a container in the Italian port Gioia Tauro.21 The bombing of oil terminals in Basra in April 2004 is an example indicating that ships and port facilities can be vulnerable. Security agencies and the international community are developing mechanisms to prevent and respond to this threat. However, if the maritime realm is so attractive to terrorism, then why have we not

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seen more attacks occurring? One possible answer is that land targets are easier to penetrate, whereas attacks at sea are more difficult to carry out. In addition, such attacks require technical knowledge, thus limiting the operational latitude. A combination of risk assessment and threat perception is driving the emerging security requirements. The ISPS Code was forced through in the IMO by political pressure. Normally growth in crime control has its background in an increased crime rate or reactions to new threats. There is no indication during the last few years that there has been growth in the total number of crimes threatening the maritime industry in a way that justifies the introduction of an entirely new regulation regime like the ISPS Code.22 According to the International Maritime Bureau (IMB), the worldwide rate of armed robbery on shipping is decreasing, from 445 cases in 2003 to 325 in 2004.23 Therefore, it seems that the introduction of the ISPS Code and the work of the IMO on LRIT regulations stem more from ‘social panic’ than from real statistical crime figures and a need for protection.24 On the other hand, data show that there is a worrisome possibility that seaborne attacks could cripple global trade and have a huge impact on developed economies. The actual regulation of the shipping industry seems so far to be more of a management activity, influenced by what is politically convenient, rather than real crime control.25 In addition, it should not be overlooked that for companies providing possible measures of protection there are gains to be made from an increased emphasis on security at sea. However, there is no doubt that piracy and armed robbery are very real threats against ships, particularly in areas with much seaborne traffic and a lot of poverty.26 In areas with guerrilla warfare, for instance, we find a combined form of piracy and armed robbery.27 In the aftermath of the attack of 11 September 2001, governments around the world began to assess their vulnerability as maritime targets. World trade is dependent mainly on maritime transport. The United Nations Conference on Trade and Development (UNCTAD) estimated that 5.8 billion tonnes of goods were transported by sea in 2001, more than 80 per cent of the global trade volume. Over 46,000 SOLAS vessels were servicing nearly 4,000 ports throughout the world. According to UNCTAD reports, world seaborne trade expanded 4.3 per cent in 2004 to 6.76 billion metric tonnes transported and expected to grow at a similar rate in 2005 and reach 7 billion tonnes.28 Forty thousand freight-forwarders are engaged in international trade, while 1,227,000 officers and seamen sail on the vessels in international merchant fleets. Four hundred thousand seafarers are from four countries: China, India, Indonesia and the Philippines. Approximately 12–15 million containers are used in world trade, and 232 million container movements are made through ports worldwide each year.29 Global commerce must be made secure, not necessarily because of the terrorist or piracy threat, but because it is a risk management problem. Take for instance the environmental challenge caused by the shipping industry. Following the September 11 attack, fears were expressed that ships could be used to transport noxious devices or substances, or that the ships could be used as floating bombs. Terrorists could attempt to extort protection money from shippers by threatening to disrupt their operations. Competitors could try to ruin rival

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businesses by attacking the latter’s maritime assets, intimidate their employees and clients, and raise their insurance rates. Perhaps even more threatening has been the possibility of a terrorist attack against underwater installations such as oil and gas pipelines or critical telecommunications installations. Since there is a growing fear of the proliferation of weapons of mass destruction and related materials worldwide, as well as the danger that these items could fall into the hands of ill-minded people, there is a need to impede and stop the trafficking of such materials. From an economic point of view, the disruption of the economy of the adversary has always been an important strategic objective. In view of this, the fact that there has until now been no major act of strategic maritime attack should not lead to complacency. All too often security analysts have warned of a doomsday scenario in which terrorists use a ship to cause death and destruction, paralysing shipping and ports around the world, and causing great damage. Just as the terrorist threat is global, the security response needs to be global. Security is a matter of prioritizing and balancing risks. Therefore securing shipping requires improving the security of the entire transport chain. Strengthening the ISPS Code could improve security in the global shipping industry. It would, however, require all countries to make port and ship security a shared responsibility among states and shipping authorities. Regrettably, many countries do not comply with the code.

Enforcement Even where aiming specifically at the prevention of maritime crime, conventions like the ISPS Code and UNCLOS have not been drafted with the aim of requiring criminal sanctions against non-compliance. Some countries want to search foreign ships far outside their territorial waters to stop a possible terrorist attack on the state coming from the sea. If the threat is significant enough, the authorities will board that ship as far from their coast as they can. The policy of the US in connection with LRIT negotiation, for example, was to ‘push back’ its sea borders for searches as much as possible – perhaps by as much as 2,000 nautical miles. From an intelligence perspective, there is ample justification to worry about a terrorist threat. Governments require permission from the flag state to board a ship in international waters, where the ship is seen as sovereign territory, or risk a diplomatic row. States would have to agree on a new legal framework to allow countries to inspect or board ships outside their own territorial waters. Exact parameters would have to be worked out with partners at a global level and within the framework of international laws of the sea. There are many obstacles to the enforcement of measures regarding crime against the shipping industry and in the shipping industry itself. Therefore, new cooperative systems for ship reporting are now being implemented to meet emerging requirements for language, identification and tracking. Multinationals, shipping companies and states insist on the need for ‘end-to-end visibility’ along the supply chain, given the need for heightened security. One may ask why we try to protect the shipping industry through rigorous regulations when we know that

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prosecution of criminal cases in the field of security is rare. In addition, there has been little research on the preventive effects of this type of regulation. On the other hand, this may be the right time to adopt an offensive strategy with regard to the part of the shipping industry flying the flag of convenience. Enhanced physical security of port facilities, increased patrols of waterways, port and coastal facilities, container security and protection against explosives, and the creation of databases to track cargo, ships and seamen are all effective and important measures in mitigating the threat. Therefore, the ISPS Code is an essential international security initiative, with 108 member states. In addition, most coastal states have signed the SUA Convention. The convention makes it possible for navy forces to pursue terrorists, pirates and maritime criminals into foreign territorial waters in order to obtain extradition and prosecute them. It may also be high time to consider payments, cash flows and other funding issues. With regard to the costs, it is possible to anticipate that contracting governments would have to pay for the services provided. Ships would be responsible for paying for the appropriate hardware needed to provide those services. The question of whether all requests should go through an international data centre must be discussed. The issue of reporting frequency and the need for a polling system must be decided. A simple system with regular reports, automatically generated for security purposes, should be preferred. These are all important factors in the enforcement of global security of seaborne transport. However, the tracking of ships is not enough to protect vessels at the international level. Tracking–data must be made applicable. Flag states need to be prepared to take on added responsibilities in counter-piracy and counter-terrorism measures with regard to enforcement. Navy escorts to accompany vessels sailing in troublesome parts of the world could be one alternative. However, such measures would undoubtedly meet problems regarding sovereign jurisdiction and thereby problems connected with enforcement. A more realistic and politically feasible option would be for flag states to provide assistance in the form of maritime funds, training and equipment. Since the 9/11 attacks the United Nations through the IMO has played a more active role in addressing especially terrorism, but also piracy, with respect to updating and improving the current international legal framework. Nevertheless, maritime transport is vulnerable to other threats, such as internal threats. Port employers have knowledge of ship operations and port facilities, access to transportation, ships, and port assets. This situation makes possible a range of terrorist tactics from placing illicit goods on board the ship to deliberate sabotage. Terrorists may also infiltrate ships as individual mariners. The threat of terrorist groups infiltrating the international merchant marines cannot be ignored. Environmental terrorism may also be a problem resulting from growing maritime activity. Examples are deliberate grounding and collision of ships, seaborne spread of infections diseases, spread of contaminated ballast water, and other environmental problems. Here too questions about enforcement with regard to jurisdiction have to be solved.

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The shipowners may be exposed to liability through conventions or as a consequence of acts or omission from a third party where the owner has the burden of proof. Crime at sea is about an inside and an outside risk impossible to prevent totally. Therefore, crime is not only a security threat to the party first hit, but also a threat to the environment, international economic interests and global trade. The shipping industry often asks the question: is it fair that the shipowners should bear the entire security burden, which in the end is of an economic character? The whole question of financial protection ends up in the gaps in insurance cover. Maximum support from the insurance industry is not sufficient, and state guarantees are not available. The insurance industries have been suggesting a combined solution of state/private cooperation as an efficient preventive element, but without result. Therefore, the responsibility stays with the shipowners, and this of course has to be taken into consideration with regard to enforcement. Data show a mixed response from the shipping industry to space-based tracking; most respondents argue that it is too soon to judge the effects because LRIT has not yet been launched. There is some consensus that the ISPS Code has heightened the security awareness. Better access control will deter unlawful acts, and port security measures will protect ships. The opinion generally held in the industry is that over time security systems will develop to become an integral part of routine operations for ships, ports, companies and authorities. Nevertheless, so far there have been no changes in enforcement practice.

Conclusion There is still a long way to go before security measures in the shipping industry match security in other sectors. Only time will tell if current regulation and the planned control systems will be effective. The challenges to maritime security are complex. Measures ultimately depend on political will and active input. The shipping industry must be prepared to adapt to the new demands and challenges posed by the security threat. Otherwise, piracy, as well as the threat of terrorism, in some waters are likely to continue unabatedly, adding yet another complicating factor to an already difficult security situation. There can be little doubt that attention to maritime criminal activity has emerged as a significant issue worldwide. Protecting international shipping from crime is difficult. Therefore, as the world faces the current maritime security challenges, it needs a new approach and a new set of capabilities. Some states give new impetus to the development of a maritime security regime.30 Global security is primarily about integration, bringing states together with international standards and the best available technology. If the international societies continue to do this, it might make the shipping industry safer. Success will depend on the shipping industry’s capability to adapt to challenges. A maritime security regime requires sufficient regulations and a strong international control system. The challenge requires a strategy and a strategic response, providing adequate resources to the control institutions. As the work

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against crime at sea moves forward, great challenges lie ahead for the international community. The progress attained thus far shows that they can be met.

Notes 1

2

3

4 5 6 7 8

9

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11 12

The code has two parts, one mandatory (Part A) and one recommendatory (Part B). Part A requires ships to have security assessments and plans, security officers and certain equipment installed on board the ship. It also requires permanent ship identity markings and a Continuous Synopsis Record recording ship ownership. The ships will have to carry an International Ship Security Certificate (ISSC) indicating compliance with the requirements of SOLAS and the ISPS Code. This certificate will be subject to port state inspection. Similarly, ports are required to have assessments, security plans and security officers, and the ports shall monitor and control access. A Study on Maritime Security Measures for Non-SOLAS Vessels, The Japan International Transport Institute (JITI), Tokyo, 10 May 2005. Available online at: (accessed 17 June 2005). J. J. Carafano, I. Varkonyi and R. Weitz, ‘The future of maritime security: competitive issues’, in J. J. Carafano and A. Kochems (eds) Making the Sea Safer: A National Agenda for Maritime Security and Counterterrorism, Heritage Special Report, SR 03, 17 February 2005, pp. 3–19. The concept of ‘regime’ can be defined in different ways. Most writers agree that a regime refers to norms, rules and procedures that regulate a particular area. See regulation 19 of SOLAS. Short distance radio communication. T. Eriksen, et al., Maritime Traffic Monitoring Using a Space-Based AIS Receiver, Kjeller: Norwegian Defence Research Establishment (FFI), 2004. On terrorism, see T. Björgo, Root Causes of Terrorism, Myths, Reality and Ways Forward, London: Routledge, 2005; and B. Hoffman, Inside terrorism, London and New York: Gallancz and Columbia University Press, 1998. There is no international consensus on the definition of terrorism. However, the definition proposed by Hoffman is arguably one of the best. According to Hoffman, terrorism is (p. 43): ‘The deliberate creation and exploration of fear through violence or the threat of violence in the pursuit of political change.’ On piracy, see C. Z. Raymond in this volume; P. Chalk, ‘Contemporary Maritime Piracy in Southeast Asia’, Studies in Conflict & Terrorism, vol. 21, 1998, 87–112; D. R. Dillon, Piracy in Asia: A Growing Barrier to Maritime Trade, Heritage Foundation Report, no. 1379, 22 June 2000; and M. Gill, ‘Security at sea: fraud, piracy and the failure of police cooperation internationally’, International Relations, vol. 13, no. 3, 1996. A Norwegian-registered vessel, KCL Banner sounded a false ship security alert (SSAS) message in the Mediterranean off the Greek coast on 25 April 2005, and was immediately escorted to the port of Pilos by two coast guard vessels. No pirates were found. United Nations Convention on the Law of the Sea (UNCLOS). Convention on International Maritime Satellite Organization, set up by the IMO in 1976, is the intergovernmental organization responsible for manning the world’s maritime-related satellite communication network. The convention defines the purpose of the international maritime satellite system (Inmarsat) as being to improve maritime communications, thereby assisting in improving distress and safety of life at sea communications, the efficiency and management of ships, maritime public correspondence service, and radio determination capabilities. Inmarsat’s obligation to

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Jan Georg Christophersen provide distress and safety services via satellite was enshrined within the 1988 amendments to SOLAS which introduced the Global Maritime Distress and Safety System (GMDSS). Ships sailing in specified sea areas are required to carry Inmarsat communication equipment for distress and safety calls and to receive navigational warnings. At present, the Inmarsat system is the only mobile-satellite system recognized by SOLAS contracting governments for use in the GMDSS. To ensure that Inmarsat continues to meet its service obligations, including obligations relating to the GMDSS, International Mobile Satellite Organization (IMSO) – an intergovernmental body replaces Inmarsat as observer at the IMO. See (E) COMSAR 9/INF.3 29 October 2004, Sub-Committee on Radio communicat ions and Search and Rescue 9th Session, agenda item 12, ‘Measures to enhance maritime security: satellite-based AIS long-range identification and tracking (LRIT).’ See MSC 79 (MEPC 53/11/1). See MSC 79/5/12. According to the report from that meeting, MSC decided as follows (MSC 79/23, paragraph 5.68): ‘The Committee supported the Australia proposal and agreed that the purpose and scope of LRIT should be extended to include safety and environmental protection applications, subject to resolution of the technical issues by the COMSAR Sub-Committee...’. MEPC 53/11/4, 27 May 2005. MSC 81/WP.5/Add.1 18 May 2006. B.A. H. Parritt (ed.), Violence at Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent Terrorism, Paris: ICC Publishing S.A., 1986; and H. W. Stevens, ‘Maritime security in the United States: latent threats and latent vulnerabilities’, Terrorism & Political Violence, vol. 2, no. 4, 1990, 554–74. R. J. Brown, ‘A sharp eye for fighting terrorism’, Professional Mariner, no. 90, August/September 2005. United Nations Conference on Trade and Development (UNCTAD) Secretariat, Container Security Major Initiatives and Related International Developments (UNCTAD ISO/TC N997: 9 April 2004), p. 7. E. L. Miles, ‘Implementation of international regimes: a typology’, in D. Vidas and W. Östreng (eds), Order for the Oceans at the Turn of the Century, The Hague: Kluwer Law International, 1999, p. 327. International Maritime Bureau, Piracy and Armed Robbery against Ships – Annual Report: 1 January – 31 December 2004, London: International Chamber of Commerce (ICC), 2005, pp. 4–11. D. Garland, The Culture of Control: – Crime and Social Order in Contemporary Society, Chicago: The University of Chicago Press, 2001. M. Clarke, A Regulation: The Social Control of Business between Law and Politics, London: MacMillan, 2000; and P. Larsson, ‘Development in the control of economic crime in Norway’, Journal of Financial Crime, vol. 13, no. 1, 2006. N. Renwik and J. Abbott, ‘Piratical Violence and Maritime Security in Southeast Asia’, Security Dialogue, vol. 30, no. 2, 1999, 183–96; J. Vagg, ‘Rough Seas? Contemporary Piracy in Southeast Asia’, British Journal of Criminology, vol. 35, no. 1, Winter 1995, p. 64; International Maritime Bureau, Piracy and Robbery Against Ships: A Special Report, London: International Chamber of Commerce (ICC), 1997; and S. Menefee, ‘Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective’, in N. Ronzitti (ed.) Maritime Terrorism and International Law, Dordrech: Martinus Nijhoff, 1990, pp. 56–61. Hoffman, Inside Terrorism; and Brigadier B. A. H. Parritt, Security at Sea: Terrorism, Piracy, and Drugs – A Practical Guide, London: The Nautical Institute, 1991, pp. 13–17. Review of Maritime Transport 2005, New York and Geneva: United Nations Conference on Trade and Development, 2005, p.x. See also UNCTAD press release

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7 November 2005. (accessed 30 Oct. 2006). 29 UNCTAD, 6–1: ‘Secure seas, open ports: keeping our waters safe, secure, and open for business’, U.S. GPO, 21 June 2004, 1, Washington, US Department of Homeland Security; and A. Kinery, ‘Difficult vigil’, Homeland Defense Journal, vol.1, no. 8, November 2003, 23. 30 R. F. Laird, M. Gaspar and D. Proctor, ‘The challenges to developing a effective maritime security architecture’, in Carafano and Kochems (eds), Making the Sea Safer, pp. 20–27.

12 Flags of convenience as a complicating factor in combating crime at sea Gunnar Stølsvik

This chapter sets out to examine the problem of ships registered in a state when there is little or no connection (such as ownership, nationality of the crew, routes followed, etc.) between the ship and the state. Such nationality arrangements are often described as ‘flags of convenience’ and are being promoted by those flag states that can offer this particular kind of registration services. The problems related to the use of flags of convenience have been widely discussed and in regard to different aspects. In this chapter we will look at the problem of the changing of nationality for the purpose of hiding the ship’s – and its owners’ – true identity in order to conduct criminal activity. Such arrangements could cause problems when coastal states try to combat crime at sea. In an independent report published in 2005, funded by WWF International, the Australian government and the International Transport Workers Federation, the following was stated with respect to unregulated fishing on the high seas by fishing vessels: The widespread and pervasive failure of so many States to uphold their fundamental duties as flag States arguably makes a mockery of the notion of flag State sovereignty. It risks undermining the integrity of the United Nations Convention on the Law of the Sea and numerous related agreements and upsetting the balance between the interests of coastal States and high seas fishing States.1 The International Transport Worker’s Federation first raised the problem of registration under flags of convenience shortly after the Second World War as a problem affecting the economic and social security of the seafarers. This has, traditionally, been the main focus, mainly through the International Labour Organization (ILO) and the International Maritime Organization (IMO). In a security perspective the challenges are quite different as they affect the coastal states where criminal activity is conducted. The fact that thousands of ships are registered in states with lax maritime regulations that promote or permit anonymity as a business advantage has given rise to some concern. This has been reflected in several international forums and quite recently in relation to the non-proliferation of weapons of mass destruction. The fear is that terrorists, pirates or other criminal groups would register a ship under

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a flag of convenience and thus be able to hide their true nationality and identity when conducting the criminal activity. Some of the consequent problems, which are addressed in this chapter, are the lack of transparency, the failure of flag states to respond to requests of coastal states and the lack of legal rights for coastal states to take action when the flag state is not cooperating.

The flags of convenience as part of the global offshore economy The global economy is greatly influenced by the so-called offshore services provided by numerous states and territories around the world. Some of the services offered by states and semi-independent territories include passports, banking licenses, identity cards, registration of cars, registration of companies, bank services, Internet domain registration and, of course, ship registration. Bank accounts are opened in full knowledge of secrecy as to who the owner of the account is, and passports are offered to persons that already have a genuine citizenship in another state. The reality is that numerous territories and states offer typical attributes of sovereignty as a commodity which may be used to conceal the true identity of the purchaser. Because of this lack of transparency countries that offer such products have attracted unwanted attention in relation to almost every kind of illegitimate activity. As the offshore services provided by the actual state do not correspond with the place of registration and where the economic activity is conducted, the use of offshore services gives a sense of virtuality. It simply does not make sense for the Cayman Islands in the Caribbean to be the fifth largest financial centre in the world or that Luxembourg has more banks than Switzerland. There is no obvious reason why war-torn Liberia should have become one of the biggest shipping nations in the world or why the citizens of the Dutch Antilles spend an average of three months per year per person on international phone calls. During recent years, and especially before 11 September 2001, it was quite easy to shop the offshore markets. As an example, you could become a bearer of a passport (ordinary or diplomatic) from numerous tiny territories for a yearly fee. In 2002 it was discovered that the accused Washington sniper John Allen Williams Muhammad had bought an Antigua and Barbuda passport and successfully entered the United States using his new passport. As a result of this, Antigua and Barbuda encountered massive criticism and pressure from Canada and the United States and decided to close the practice of allowing non-nationals to purchase passports. In an address to the nation, Prime Minister Baldwin Spencer of Antigua and Barbuda finally declared: ‘The sale of this country’s passport will not continue. Antigua & Barbuda passports are no longer for sale.’2 Another offshore service that has gained increasing popularity is to lease out country codes and phone numbers to specialized sex companies. Online sex does not usually originate in these countries but is merely rerouted through switching mechanisms located anywhere in the world. The origin of the phone calls remains

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unknown, but because of the settlement system they are logged as if emanating from these countries and the small countries share in the revenues from these incoming calls. These procedures can produce a significant amount of revenues for a small country. Niue is reputed to derive approximately 20 per cent of government revenues from such deals.3 Tuvalu, which operates an infamous ship registry as well, also derives revenues from such phone deals. Most states that engage in various types of offshore services also offer anonymity, cheap labour and liberal legislation, which in the end might be regarded as detrimental to the state in which the activity is in fact being conducted. The dilemma we are facing is the state’s rights to legislate in the manner they wish as opposed to the needs of other states. An example is North Korea, which is being accused of supporting drug trafficking for the benefit of the North Korean State. In such a case, if the accusations are true, North Korea is exporting crime on a worldwide scale and surely other states must have the right to take action against that. By offering offshore services, State A creates a legal room in which foreigners are allowed to conduct criminal activities, which in their home country are illegal. The offshore ownership structures are most often designed in such a way that they cover the customers and not their home state’s needs. In this lies a conflict between State A and State B where A, in some cases, implicitly and often involuntarily in fact is being an abettor of criminal activity in State B. The criminals are conducting their activity in State B but receive support in the form of legal or structural protection from State A that complicates the investigation and sometimes lays serious limitations on State B’s law enforcement. The trade in nationality of ships is one of the oldest and most widely used offshore services in the world today. Originally this was created by the United States, which helped Liberia to open a register for foreign ships in order to fill the then US need to have ships under a neutral flag. The intention then was the same as it is now for all offshore services, to register an economic (or other) activity in another state instead of on the territory where the activity de facto is being conducted. But what motivates today’s ship owners to register their vessels with the shipping registers of other countries rather than with those in their own countries? Clearly, such moves are a response to growing international competition that often has a high impact on their financial interests. In 1958 the Organization for European Economic Co-operation (OEEC) summarized the reason for shipowners to change the nationality of American ships the following way: ... [the] virtual freedom from taxation of ships sailing under the flags of convenience enables many of the shipowners concerned so to arrange their business enterprises that their profits are not liable to taxation in any country. They are thus able to devote to the expansion and development of their fleets that proportion of their profits which their competitors in other countries have to set aside to meet tax requirements. The real effect of such registration is to bring the high operating costs incurred by ships registered in the U.S. down to a level nearer that of the general run in the countries of their foreign

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competitors. In a sense, therefore it is the removal of a handicap rather than the gaining of an advantage which flows from these particular transfers.4 In a multinational industry with a great deal of competition the reasoning from 1958 is still relevant. Taking advantage of the opportunity offered by flags of convenience may still, in many cases, be the only way for ship owners to avoid great financial expenditures.

The flags of convenience in a security perspective It has been widely recognized by all countries under the threat of terrorism that ships are an obvious, and potentially devastating, source of terrorist acts. It seems natural in these circumstances that everything should be done to minimize, if not absolutely eliminate, those risks. By their very nature, flags of convenience are inherently more vulnerable to possible misuse by terrorists, especially those registers that promote the fact that they are committed to protecting the identity of beneficial owners. In a report by the Organization for Economic Co-operation and Development (OECD) on ownership and control of ships from a security perspective it was stated: However, not only does perfect transparency not exist, but in fact anonymity seems to be the rule rather than the exception, and not only is it permitted, but in many cases positively encouraged. This enables terrorists and would be terrorists to remain intimately involved in the operation of their vessels, while remaining totally hidden, through the use of relatively simple mechanisms that are readily available and legally tolerated in almost all jurisdictions.5 During the investigation of the well-known Scandinavian Star disaster, where 159 people died in 1990, there was severe difficulty in determining who the actual owner of the ship was. The ownership of the ship was so blurry that this is not yet determined. It is probably not right to blame just the flag state, which in this case was Bahamas, since the lack of transparency in the shipping industry is also the responsibility of other jurisdictions. By using corporate mechanisms, such as offshore company registration, in conjunction with a flag of convenience, the result would be total anonymity. In the OECD report on ownership and control of ships it was stated: While some ship registers actively facilitate and promote anonymity for reluctant owners, the principal mechanisms are not the registers themselves, but the corporate mechanisms that are available to owners to cloak their identity.6 The most important feature that facilitates anonymity of individuals from the perspective of the ship registering process is the ability of corporations to be registered as owners of vessels. An effective mechanism, which is the most common

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can provide anonymity for beneficial owners, includes bearer shares, nominee shareholders, nominee directors, the use of intermediaries to act on owners’ behalf and on the failure of states to provide effective reporting requirements. From this perspective one could say that the blame is not entirely on the flag state but also on the jurisdictions that offer these corporate mechanisms and on those individuals that misuse the possibilities available to them. In Southeast Asia, piracy has been significantly more violent in the last three years and it seems possible, as discussed in previous chapters, that there might emerge a nexus between piracy and terrorist groups. The use of flags of convenience in such operations has its benefits for the criminal group. As mentioned in C. Z. Raymond’s chapter, some flag states offer a temporary six-month fast-track registration. This allows a hijacker of a ship to take advantage of the secrecy that follows such registration, as demonstrated in the case of the Singaporean-owned ship, the Petro Ranger, which in 1998 was hijacked and reflagged to Honduras. In December 2002 the ship Sosun registered in Cambodia, was found to be carrying 15 scud missiles, conventional warheads and rocket propellant under a cargo of cement after US and Spanish naval vessels stopped it in the Arabian Sea. This ship was owned by North Korea but had been registered under the flag of Cambodia. The Cambodia Shipping Corporation registered foreign vessels – many of them North Korean – for Cambodia, until 2002, when the French Navy seized the ship Winner, a Cambodia flag cargo ship, for cocaine smuggling. The seizure prompted the Cambodian government to cancel its contract with the company that operated the Cambodian ship register from Singapore. Outsourcing of the operation of ship registers is a trend that several countries have taken advantage of. A flag that has a particularly bad track record is the Pacific Ocean Kingdom of Tonga that developed a ship register that was outsourced to a company in Greece. Its register officially closed its operation in April 2003. In spite of this, several Tonga-registered ships visit harbours all over the world. The background for the official closing of the registry was a couple of serious incidences involving two Iraqi-owned ships: First, Karine A was boarded by Israeli commandos in the Red Sea and was found to be carrying 50 tonnes of mainly Iranian weapons.7 Then, soon after, Italian authorities arrested the captain and several crew members of the ship Monica in March 2002 with 928, including 361 children, Iraqi Kurdish immigrants on board. The immigrants were reported to have paid US$4,000 for each adult immigrant and US$2,000 for each child.8 Sometimes the port states adopt a policy of stringent safety and customs checks towards specific nationalities. In 2003, Japan, traditionally an important trading partner of North Korea, adopted such a policy towards North Korean flag vessels visiting Japanese ports. As a result of this enforcement, the number of port calls by North Korean flag vessels to Japan in 2003 plummeted by 29 per cent.9 North Korean-owned ships have over the last years increasingly been registered under various flags of convenience. In May 2003 Australian authorities captured a Tuvalu-registered freighter attempting to smuggle heroin worth US$50 million into Australia.10 The ship was owned and operated by North Korea. North Korea has in the past allegedly resorted to the drug trade to inject cash into its failing

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economy and fund its huge army and expensive weapons development programmes. Judging from the reports in media the official attitude of the Australian government and public was that the attempt to smuggle heroin was conducted by North Korea and not by Tuvalu. The ship was regarded as North Korean disguised under the more ‘friendly’ flag of Tuvalu in order to reduce the risk of being caught by Australian authorities. Norway took the same approach as Australia to some Icelandic-owned ships registered under flags of convenience. During 1994 a series of conflicts in the fisheries protection zone of Svalbard occurred.11 Norwegian newspapers described it as the ‘Norwegian–Icelandic fisheries war’. The reason was that the ships that carried out illegal fishing in the zone were crewed with Icelandic fishermen and had shipowners stationed on Iceland. However, even so it was wrong to call it a ‘war’ between Norway and Iceland because all the ships involved were carrying not the Icelandic flag, but the flags of Belize, the Dominican Republic and Panama. So, in fact, if one should take the flag of the ship seriously the diplomatic tension, which definitely took place between Norway and Iceland, did not reflect the strictly formal situation, as the ships were not flying the Icelandic flag. But the newspapers and the government, too, only reacted to the reality that the ships had no real connection with any of the flags. Under the United Nations Convention on the Law of the Sea (UNCLOS), few legal rights of intervention exist in the case of ships suspected of illicitly trafficking in drugs, despite the obligation on states to cooperate in suppressing that trade (UNCLOS Article 108). In 1988 the (UN) Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was concluded; it entered into force in 1990. Article 17 of the convention provides that states parties may request each others help in the repression of illicit traffic. So, the coastal or port state does not have a right (if not decided in advance through a separate agreement) to board a ship under suspicion of trafficking drugs in international waters but must request the flag state to do so. In the case of North Korea and Tuvalu this convention does not provide much help for other states, as none of them are parties to it. In relation to other forms of criminal activity such as terrorism there is no international right to board foreign ships without the prior consent of the flag state. When the flag state is not party to treaties that enable the coastal and port state to board ships under suspicion of a specific criminal activity, they must ask for permission in advance. But who will answer? One of the main problems of the flag state principle combined with the practice of flags of convenience is that quite often there exists a very weak link between the flag state and the ship. In many cases there exists virtually no genuine link between the state and ship. This weakness becomes much clearer when a request to board a ship by the coastal or port state is left unanswered by the flag state.

The nationality of ships from a legal perspective States usually grant their nationality to vessels by means of registration and by authorizing vessels to fly their flag. Originally, it seemed that states had complete

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discretion in this matter.12 Accordingly, each state has to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Article 91 of UNCLOS does also require a ‘genuine link’ between the ship and the state. This criterion was established through a well-known judgement of the International Court of Justice between Guatemala and Liechtenstein – the Nottebohm case.13 The introduction of the requirement of a ‘genuine link’ gives rise to the difficulty of knowing what exactly constitutes such a link. Unfortunately this remains unclear, since the International Law Commission felt that it was not practicable to suggest specific criteria in the final draft of the Convention on the High Seas. Equally, the consequences remain uncertain when there is no genuine link between a vessel and the state whose nationality it purports to bear. It is, however, quite obvious that the introduction of the ‘genuine link’ criterion was done with the purpose to regulate the growth of flags of convenience, as states which offer such services usually have a very weak connection with their ships. Matters connected with ship registration are regulated by the 1986 United Nations Convention on Conditions for Registration of Ships. This convention is, however, not yet in force, as the required number of state signatories has not yet been reached. On the question of a genuine link between flag state and ship, the convention stipulates that the shipping company must be established in the flag state or must have its principal place of business there. In the Nottebohm case the International Court of Justice defined nationality and the genuine link as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’.14 Most work that has been done on the genuine link has focused on the problems related to shipping companies, which reflag their ships in order to obtain economical advantages. The problems of the meaning of the ‘genuine link’ and the consequences that follow from the absence of such a link have been the subject of a considerable literature and still remain unclear. In this chapter the focus is on maritime security and we realize that a weak connection between the state and the ship could have security implications. The state’s right to board foreign ships on the high seas is quite limited and has been defined in Article 110 of UNCLOS. A state has the right to visit a foreign ship where there is reasonable ground for suspecting that it is engaged in piracy, slave trade, unauthorized broadcasting or that the ship is without nationality. When is a ship without nationality and when is it justifiable to disregard the nationality that the ship purports to have? This question, so far, remains unsolved but it is interesting to investigate the possibilities that might legally be present in the ‘genuine link’ criterion from a security perspective. The question of fraud is here relevant, first of all vis-à-vis the flag state but also between the ship and the coastal or port state. In the final submission by Guatemala presented at the hearing of the Nottebohm case on 7 March 1955, Guatemala stated that Liechtenstein’s claim was inadmissible ‘on the ground that Mr Nottebohm appears to have solicited

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Liechtenstein nationality fraudulently, that is to say, with the sole object of acquiring the status of neutral national before returning to Guatemala, and without any genuine intention to establish a durable link, excluding German nationality, between the Principality and himself’. The core of Guatemala’s argument to not recognize the new citizenship of Nottebohm was that they regarded his new nationality to have been fraudulently obtained. Unfortunately the Court did not address explicitly the question of fraud, relying mainly on the lack of a ‘genuine link’ between the state and Mr Nottebohm. One of the reasons why the court in the Nottebohm case did not address the question of fraud was perhaps because of the nature of the case itself. Nottebohm changed his nationality mainly as a self-preservation measure and probably not with the intention to harm Guatemala. The International Court might have addressed this question if Nottebohm had acquired the nationality with the purpose to conduct sabotage on behalf of Nazi Germany in Guatemala. By acquiring the nationality of Liechtenstein he would have kept his original German nationality secret when conducting hostile acts against Guatemala. This is the fear of several states today as terrorist organizations or hostile states could hide their true nationality by obtaining a new nationality under a flag of convenience. The UN Security Council recognized this possibility during the embargo of Serbia in 1992. In Article 10 of Security Council Resolution 787 (1992) it was stated: ... any vessel in which a majority or controlling interest is held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) shall be considered, for the purpose of implementation of the relevant resolutions of the Security Council, a vessel of the Federal Republic of Yugoslavia (Serbia and Montenegro) regardless of the flag under which the vessel sails. In a case from 1923 involving the United States and the United Kingdom, the ship Henry L. Marshall sailed under British flag, trans-shipping alcoholic beverages into US vessels on the high seas. In relation to that case, the British Under Secretary of State, Mr McNeill, stated in Parliament: The case referred to is an exception, since the vessel in question was found on investigation to have obtained British registry by fraudulent means. It was therefore intimated to the United States Government nearly a year ago that His Majesty’s Government did not regard her as a British vessel.15 As mentioned earlier, few legal rights exist in the case of ships suspected of crime on the high seas. There has, however, been approved by IMO a new protocol to the Suppression of Unlawful Acts at Sea Convention (SUA Convention). Originally, it was suggested by some states, the protocol should allow a state to seek the approval of a flag state to board and search a suspect ship claiming the nationality of the flag state. If no reply has been received from the flag state within a certain period of time, then the requesting state would be permitted to carry on with the

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boarding. In this provision one can see traces of the genuine link element. The absence of a reply on the part of the flag state would have resulted in legal rights for the requesting state. In the final discussions this provision was not approved and the new protocol will not include a response time limitation. From the perspective of the coastal state’s control over flags of convenience this outcome will not make much difference as the problem with flag states that does not respond to requests from coastal states still remains unresolved. One of the building blocks of the Law of the Sea is the flag state sovereignty over its own ship – the so-called flag state principle. This principle often enters into a conflict of interests with the needs of the coastal and port state. If the coast guard holds the same nationality as the ship, then it has a right to visit it in accordance with UNCLOS Article 94 on the high seas. Problems arise when a ship is registered under a flag of convenience but the owners and the crew are of another state. One can easily imagine a ship that is owned and operated from, as an example, Singapore with a Singaporean crew but the ship being registered in another state. In such a situation Singapore would not be allowed to exercise jurisdiction on that ship since it is registered in a state such as, as an example, Mongolia. Then it is Mongolia which has the right to exercise jurisdiction on the ship while the ship operates on the high seas. Another example was the embargo of Serbia by the UN Security Council where the right of the flag state was outweighed by the security needs of the international community, which resulted in a provision which made it legal to disregard the flag state and rather rely on the true nationality of the ship. When advocating the controversial issue to disregard the flag state it must be clear that this must be a last resort solution. When the reason for changing the ships nationality is to conduct activities contrary to human rights, humanitarian law or UN resolutions, then the fraudulent character is the dominant reason and it might be possible to disregard the flag in such a situation. By doing so, it is obvious that such action must balance the flag state principle and the rights of coastal states. When considering such action the existence or the lack of a ‘genuine link’ between the flag state and the ship should be considered.

Do we need a new approach after September 11? As we have seen in many areas, the international community regards transparency as one of the fundamentals in combating crime. The state need for transparency has been the main reason for the OECD’s involvement in relation to so-called tax havens. The OECD has developed standards and exercises pressure towards jurisdictions that do not follow international good governance in the field of taxation. The ship registration business has operated unnoticed for many years. In the aftermath of the terrorist attacks on the United States there has been a growing awareness of the possible dangers of such registers that offer nontransparency as a business advantage. The OECD wrote in their report on ownership and control of ships that:

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Flags should avoid registering vessels whose owners go to extensive lengths, such as the use of complex corporate mechanisms, to hide their identities. In the event that a register decides to accept such vessels, even though ownership details are uncertain, it is strongly suggested that the vessels should be clearly identified as failing to meet transparency requirements, and for such details to be readily available to competent authorities.16 Obviously it will be utopian to think that we can change the order of the sea as there are strong economical and political reasons to keep the strong position of the flag state. The shipping industry is a large and important one, and in many ways needs the possibility of changing nationality in order to become more competitive. On the other hand, it must also be possible to weigh these commercial needs against the need for security on the part of the coastal and port state. There are in my view three possible approaches. Two are political, and the last one is, perhaps as a last resort solution, of a more extreme legal nature. a) The use of international pressure Convincing flag states to tighten the control of their ships might not be possible without some form of international pressure. A good example is the former international ship register of Tonga. Following several serious incidents the Pacific Islands Forum, which comprises 16 Pacific Ocean member states, announced that it would form a group to study flags of convenience. The group stated in September 2002 to the Pacific Business News that the security team would take a look at flags of convenience in Tonga and other Pacific Islands nations. The US was also concerned with the possibility of a terrorist fleet of ships registered under the Tongan flag. It is obvious that the closure of the Tongan register was done after a great deal of international pressure from various sources and could serve as an example on how to deal with at least some states that offer their flags to suspicious ships. The OECD has, for many years, worked particularly against the so-called tax havens and used political pressure in order to convince states to change their domestic legislation. In 1989 the OECD created the Financial Action Task Force (FATF) which was given the responsibility of examining money laundering techniques and setting out necessary measures to combat money laundering. In the report by the OECD the same approach was suggested towards states which offer flags of convenience. The OECD stated that: Such actions by the international community are already under way in other sectors, and have achieved a measure of success. For example, the OECD Task Force on Harmful Tax Practices, has (amongst other things) received commitments from a number of administrations to transparency and exchange of information for tax purposes.17 The experience and working method of this task force could be used in relation to tighten the control and transparency of the various flag states.

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b) Establishment of a net of bilateral agreements The US is currently trying to negotiate bilateral agreements with various flag states for the right to inspect ships where there is suspicion that they carry weapons of mass destruction. As part of the Proliferation Security Initiative (PSI) the US has entered into bilateral ship-boarding agreements with Liberia, the Marshall Islands and Panama. Liberia and Panama are the two countries with the largest ship registries. The combination of Liberia, Panama and PSI core partner countries means that now almost 50 per cent of the total commercial shipping of the world measured in deadweight tonnage is subject to rapid action consent procedures for boarding, search and seizure.18 The problem with this is that such initiatives will only benefit a few states and will not cover the needs of the world community in general. Furthermore, it has been proven that, some of the most troublesome states are the ones which are least interested in entering into such agreements. c) The consequence of the lack of ‘genuine link’ As discussed earlier there might be a legal possibility to inspect a ship that does not satisfy the criterion of a ‘genuine link’ and has obtained the nationality by ‘fraudulent’ means. Is it possible to regard the ship as ‘stateless’ and thus have the rights of Article 110 of UNCLOS to visit the ship? In the 1960 American Journal of International Law article by Myers McDougal he expressed great concern over the introduction of the ‘genuine link’ as a criterion for determining the nationality of ships. In his view the requirement of a genuine link might lead to: the treating on the high seas of ships of other states as stateless with all the consequences which attach to ships without nationality; it might permit some states arbitrarily to deprive other states of their hitherto universally recognised equal right to sail ships on the high seas; it might lead to the denial of the right of innocent passage through the territorial sea to such ships and the exclusion from access to internal waters and ports, and it would certainly encourage discrimination in international sea commerce.19 Looking in retrospect of McDougal’s worries on the introduction of the genuine link criterion we know that the genuine link never has been enforced in such a way. But it is, however, tempting to reflect on the possibility, in extreme circumstances, of disregarding the flag of the ship where there is clearly no genuine link between the state and the ship. An example would be if the flag state was not interested in associating itself with the ship and did not respond to requests from other governments or, based on a long-standing track record, the flag state has clearly organized its ship registry in a way that contradicts good international governance.

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Concluding remarks When combating the negative effects of flags of convenience it is perhaps best, from a political point of view, to establish common global recommendations that flag states should follow. The implementations of these recommendations should be monitored by an international organization. Perhaps the OECD might be the right organization to focus on such a task. If, however, taking into account the potential risk the world shipping industry poses in international and organized crime, the flag states do not implement such recommendations, there must exist an international tool to convince those states to implement international norms of good governance. The political tool to convince such states to do so could be to refuse ships from certain flag states access to ports. The OECD also suggested this approach in their report on ownership and control of ships. The OECD wrote the following: As an ultimate measure, in cases of extreme threat, or perhaps following a terrorist attack, governments could move to restrict access to their ports only to vessels from flags where it is known that ownership and control of their ships is transparent, and ships whose ownership is known. This would be virtually a measure of last resort when all other measures are exhausted. It would provide governments with a breathing space and/or window of secure opportunity to either address the threat, or if an incident has occurred to minimise the likelihood of a follow-up attack.20 Moreover, in case of suspicion of proliferation of weapons of mass destruction or other serious criminal activity on board a ship, or fear that such acts are being planned against other ships or offshore installations, the new, recently negotiated protocol to the SUA Convention will hardly prove fully satisfactory. In such cases it would most likely be more reassuring if, as a last resort, and after concluding that the ship was in effect lacking any genuine link with the flag state, one might regard it as a stateless ship and board it.

Notes 1 2 3 4 5 6 7 8

M. Gianni and W. Simpson, The Changing Nature of High Seas Fishing, World Wildlife Foundation, 2005, p. 61. Antigua Sun, 24 May 2004. R. Palan, The Offshore World, Ithaca and London: Cornell University Press, 2003. Quoted in M. S. McDougal, ‘The maintenance of public order at sea and the nationality of ships’, The American Journal of International Law, vol. 54, no. 1, 1960, 32. Ownership and Control of Ships, Report by the OECD Maritime Transport Committee, March 2003, p. 6. Ibid., p. 3. ABC News Australia, 11 January 2002. Available online at: (accessed 9 May 2006). BBC News, 22 March 2002. Available online at: (accessed 9 May 2006).

174 9 10 11

12 13

14 15 16 17 18 19 20

Gunnar Stølsvik J. Brooke, ‘Landlocked Mongolia’s seafaring tradition’, New York Times, 2 July 2004. Available online at: (accessed 9 May 2006). CBS News, 2 May 2003 and Straits Times, 22 May 2003. Svalbard, also known as Spitzbergen, is a group of islands in the Artic Ocean. After hundreds of years of disputes over whaling and mining privileges, a treaty was signed in 1920 granting Norway sovereignty. Some 40 other nations have been granted mining and other rights by the treaty. Today there are still disputes relating to the legal interpretation of the Spitzbergen Treaty when it comes to the Norwegian claim of a 200-nautical mile ‘fisheries protection zone’ surrounding the Svalbard islands. As an example, see ‘Muscat Dhows Case’, Decision of the Permanent Court of Arbitration (RIAA), vol. XI, p. 83 and article 5 of the Convention on the High Seas and UNCLOS, article 91. Nottebohm was by German law a German national by birth and lived in Guatemala from 1905 until his arrest in 1943. In 1939, before a state of war existed between Germany and Guatemala, he visited Liechtenstein and became a Liechtenstein national. He then returned to Guatemala where he resided as before. A state of war came into existence between Germany and Guatemala and he was arrested in 1943 and deported to the USA. Upon his release, he applied for readmission to Guatemala but was refused. Meanwhile, the Guatemalan government, after classifying him as an enemy alien, expropriated his extensive properties without compensation. After this incident Liechtenstein decided to bring the case to the International Court of Justice. ‘Nottebohm case’, International Court of Justice Report, 1955. For the full text of the judgement, see (accessed 19 May 2006). Ibid. Quoted in H. Meyers, The Nationality of Ships, Den Haag: Martinus Nijhoff, 1967, p. 182. Maritime Security – Options to Improve Transparency in the Ownership and Control of Ships, Report by the OECD Maritime Transport Committee, June 2004, p. 15. Ibid., p. 18. A. Bergin, ‘The Proliferation Security Initiative: Implications for the Indian Ocean’, International Journal of Marine and Coastal Law, vol. 20, 2005, p. 90. McDougal, ‘The maintenance of public order at sea and the nationality of ships’, p. 42. Maritime Security – Options to Improve Transparency in the Ownership and Control of Ships, p. 19.

PART IV

Comments and reflections

13 Terrorism at sea Combating what – and how? John K. Skogan

There are certainly ample grounds for the concern about possible terrorist actions in Southeast Asian waters that A. Acharya refers to in his chapter. The post 9/11 tightening of control on land as well as in the air may have made groups and individuals considering acts of terrorism turn their eyes to the sea, and several maritime targets are no doubt of possible interest to would-be terrorists. In consequence, terrorism, and especially the new transnational, Al Qaeda-inspired type, could spill over into the maritime domain. Were that to happen, Southeast Asian waters, due to their importance, might be among those particularly exposed. Therefore, given our increased vigilance against terrorism since the shocking events of 11 September 2001, concern about possible terrorist attacks in Southeast Asian waters is by no means misplaced. The challenge is how best to counter this threat. Identifying what is really the threat of maritime terrorism seems to be one basic requirement. What is, more precisely, the nature of it? What are the particularities of terrorism that makes it discernable and different from other threats at sea? This is important to know in order not only to guide the extra watchfulness called for in the right direction but also to differentiate between what are matters of real concern and what are not. This way it also becomes easier to know where, and at what, to aim preventive efforts. Moreover, a better understanding of what constitutes threats of terrorism, and more specifically threats of maritime terrorism, may give a better insight into their causes and background as well. In turn this too may provide valuable clues as how to combat such threats effectively. The purpose of this chapter is to present a short sketch along these lines of analysis.

Focusing on terrorism The 2001 terrorist assaults on New York and Washington did not only increase vigilance concerning terrorism; these events, as well as subsequent ones in Bali, Moscow and Madrid, to name a few, also served to increase interest in the subject of terrorism – in the media, in politics, and among scholars and publishers. To defence and security experts the study of terrorism even gained some semblance of a growth industry. For the most part this has been positive – in many quarters producing a much better understanding of the phenomenon of terrorism and its

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causes. At the same time it has helped maintain the high and widespread attention paid to the danger of terrorism and the need to thwart it. However, the more extensive inquiry into the subject of terrorism has also produced a great diversity in the descriptions and interpretations of the phenomenon. Rather than helping to clarify, this has sometimes tended to obscure the very concept of terrorism. Contributing to this has been an occasionally somewhat indiscriminate use of the term as well; at times the definitional net has been cast quite far, and a wide range of violent actions of different sorts has been presented, and examined, as cases of terrorism. A partial explanation of this is probably that accounts of something being linked to, or even claimed to be, terrorism may seem to stand a better chance of being recognized as important and interesting by others – be they readers or listeners. Another very likely motive is the expectation that acts of violence that have received less attention than their brutal or menacing character seems to call for, may be taken more seriously, and treated accordingly, if labeled terrorism. This would not be much different from the attempts occasionally seen at elevating certain challenges to a higher level of importance by presenting them under the heading of national security. With reference to the comparison between piracy and terrorism, it has been pointed out that ‘calling a crime an act of “terrorism” instead of “piracy” is more likely to resonate with an indifferent public and draw media attention, political support and funding’.1

Terrorism and violence Traditionally the term terrorism has a strong condemnatory content. There is, however, no copyright on the term. In this sense we are all free to use it as we see fit. But the claim that terrorism is what we say is terrorism provides a rather poor basis for fighting it. The concept could simply become too elusive to induce any widespread aversion and to signify something worth rallying against. If a firm and broadly based front against terrorism is to be maintained, one should be more restrictive in the use of the term. Above all, care should be taken not to use it in ways that may in fact assist in making terrorism become just another instance of violent misdeed. Were that to happen it would represent a serious backlash in the fight against terrorism. In order to maintain a united front against terrorism, and in order to fight it effectively – including trying to stem its possible spread into the maritime domain – a clear focus should be kept on terrorism as something different from other instances of objectionable use of violence. Accordingly, a line of discrimination has to be drawn between different reallife cases. When are we dealing with terrorism, and when are the exercises or outbursts of violence that we see something else? Of course, that depends on what we mean by terrorism. But this does not necessarily call for any full-fledged definition. There is a plethora of definitions of terrorism.2 The more important point here, however, is whether there is anything particular about terrorism that puts it apart from other kinds of violence, some characteristic that makes it stand out as especially reprehensible in comparison.

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Usually we denounce violence, especially in its physical sense. We object to the use of it as a way of resolving disputes, as a means of having one’s way. That is, we do so in most cases – but not always. Actually, in some situations we happen to condone, or even actively support the resort to violence, for instance as a defence against something we fear, or even as a means to teach someone a lesson well deserved. However, this does not lead us to support the use of terrorism for such purposes. There is something special about terrorism. It is off limits. Likewise, even if we generally denounce the use of violence, most of us may occasionally find resorting to violent measures somewhat understandable as a way of settling what seem otherwise insolvable, ruinous disputes between adversaries – thus more or less actually accepting resort to violence as a fact of life, however deplorable. With resort to terrorism it is different – we accept no excuses for it. Terrorism is simply not permissible. At least, that is the way we used to consider it.

The ugly essence What then is it that makes terrorism so different as a method of applying violence – because, after all, it is just that, simply violence used in a particular way? Sometimes the terrorist way of employing violence can be – and has indeed proved to be – extremely bloody and murderous. But this is not a necessary feature of terrorism, and the application of violence in non-terrorist ways has at times been equally, and even more, destructive and lethal. This is not what makes terrorism different from other forms of violence.3 In a short address following a meeting with his national security team, President Bush on 12 September 2001 pointed out that the enemy the American people were facing had no regard for human life; it was, according to him ‘an enemy who preys on innocent and unsuspecting people’.4 President Bush in those few words then, I think, caught the essence of what, in our traditional perception of terrorism, puts it apart from other forms of violence. Terrorism is not like the use of violence in normal contests or direct fights between adversaries. Not only is it simply meaner, but more importantly, the method is also far more revolting. The aim of terrorist violence may not be different, be it to influence the opponent, to have him give in, or simply to punish him, to cause him harm or grief. However, for such purposes innocents are those deliberately targeted; to get at the opponent they typically are the ones being menaced, maimed and even murdered, sometimes in great numbers. This is what makes terrorism so utterly reprehensible and revolting. And this is what over time has come to produce such widespread denunciation of terrorism as inexcusable, no matter what. This traditional perception of terrorism and the resulting widespread reaction to it are extremely valuable assets in fighting it. Not only do they constitute an important basis for a common front against it. They

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may also serve to impede recruitment to groups and movements intent on terrorism. Therefore, such understandings of it should be nourished and propagated.

Confronting terrorism Here, too, lies probably the most powerful argument against labelling as terrorism cases and kinds of objectionable violence that at best only border on the traditional understanding of what constitutes terrorism. The effect could easily be a watering down of the very concept. In particular that might happen if cases of violence are included that do not involve targeting innocents. This might gradually rob the term of some of its traditionally strong condemnatory content. In particular, one should avoid attempts at taking advantage of the strong and broadly based condemnation of terrorism by also including under the label other unwelcomed activities, and doing so in the hope of getting help to quell these. Such attempts could risk splitting the front against terrorism and weaken the automatic rejection of this ugly method of purposeful violence. To put it shortly, in the interest of maintaining a solid alliance against terrorism and preferably also expanding the alliance, one should see to it that the concept of terrorism is kept pure and ugly – and, therefore, repulsive and frightening as well. Basic to this argument is the still quite common and traditionally strong condemnatory reaction to the deliberate targeting of innocents, quite often randomly picked. However, stressing this distinctive feature of the terrorist method of utilizing violence carries two important implications. First, attacks on military targets are not normally considered terrorist acts. In most cases innocents means civilians, and more precisely civilians in non-military roles. True, there certainly are exceptions to this, for instance with respect to military personnel in or from countries not involved in the hostilities or in the underlying situation of grievance. Moreover, such exceptions may be more numerous today due to the growing use of military personnel in humanitarian, non-combatant operations. In addition, there are of course borderline cases. Nevertheless, the important thing is that most cases are neither exceptions nor borderline cases, and borderline cases do not stand in the way of recognizing clear-cut cases. The disgraceful attack on the warship USS Cole in the port of Aden in October 2000 is often referred to as an act of terrorism. There may be very good reasons for calling the members of the group behind the attack terrorists on the basis of their conduct in other contexts and with reference to their Al Qaeda connections. Also, we might be justified in fearing that the mode of operation employed in this attack could be repeated in the future, and then in indisputably terrorist attacks. But if we insist on calling the USS Cole attack itself terrorism we may be on a slippery slope, further along which we may have to defend positions that will definitely risk undermining the common stand against terrorist acts. At its very end we may even find ourselves having problems in refuting such ludicrous claims that attacks carried out by European resistance movements against units of German occupation forces during the Second World War were terrorist acts.

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In contrast to the attack on USS Cole the assault on the Italian passenger cruise liner Achille Lauro in the Eastern Mediterranean in 1985 turned out to be a clearcut terrorist act. Another of the fortunately, so far, rather few examples of terrorist acts taking place on the open seas is the attack on the French oil tanker Limburg almost to the day two years after the attack on the USS Cole, and in fact more or less repeating, it seems, the operational mode of that attack. The second implication is that terrorism is not a method reserved only for rebels and non-governmental groups. Governments, too, can resort to the use of terrorism. If objecting to that, one should take note of ‘la grande terreur’, the great terror in revolutionary France in 1793–94 – in fact then official government policy – from which the term terrorism partly originates. Admittedly, however, governments are vulnerable to unwarranted accusations of terrorism. The task of trying to control situations of violence, at home as well as abroad, occasionally puts government forces in situations where they are virtually unable to avoid causing unintended harm and suffering among innocent civilians. This may even be the result of an intended provocation by insurgents or other violent groups who hide behind civilians and by doing so, are the ones actually using terrorist tactics. However, this cannot hide the fact that governments too at times resort to terrorism, and do so deliberately, whether out of exasperation or frustration. Such incidents hardly serve to consolidate the front against terrorism, neither will attempts at renaming as something else violence directed by any current government against innocent civilians as primary targets. Glossing over what is troublesome sometimes serves to hightlight the problem rather than hide it.

A new kind of threat The chief reason why it has become so important to consolidate and expand, if possible, the anti-terrorist alliance is that we may have entered a new stage in the danger from terrorism. The events of 11 September 2001 introduced something new and particularly frightening, the threat of what we may call large-scale, single-act terrorism.5 This threat also applies to the maritime sector, and perhaps increasingly so. Not only is this kind of terrorism particularly frightening as to its effects, it also becomes frightening when we consider the possible motives behind it. And motives are important when we contemplate the risks of maritime terrorism – what are the motives most likely to produce terrorist acts at sea? Motives for the use of violence are often instrumental. Violence and, in our case, terrorism, is then a means to an end. Accordingly, the expected instrumental usefulness of terrorist methods tempts the resort to such methods. For instance, this happens at times in violent confrontations between governments and groups of rebels. However, even if certainly deplorable and reprehensible, taken separately such terrorist acts are mostly rather small scale. That does not mean that they should be taken lightly, because, despite being small scale, over time they collectively add up to quite a magnitude of harm, suffering and inexcusable killing. Large-scale, single-act terrorism is different in terms of the extent of destruction and atrocities from a single act, or from a series of related, near-simultaneous

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acts. Moreover, in some cases, such as 9/11, this kind of terrorism and the spectacular havoc and consternation caused by it actually seems to be an end in itself, the prime motives being pure hatred, the wish for revenge, or simply to bring about a frightening and painful manifestation of protest. The act itself and its immediate effects are rewarding to the perpetrators and a fulfillment of what they are seeking. We may call such motives expressive as opposed to instrumental. In the case of the latter, it is not the act itself but something different from the actual terrorist act that is sought as an effect and a reward from it. Expressive motives do not exclude instrumental ones. There may be a mix of the two kinds of motives behind one and the same terrorist act. Moreover, the motives, and their mix, may differ among its perpetrators and planners. A few of the more spectacular large scale terrorist actions since 11 September 2001 may have been due mainly to instrumental motives. This is most likely true of the terrorist operations by Chechen militants against a Moscow theatre in 2002 and at a school in Beslan two years later. However, in most other cases of major post-9/11 terrorist attacks, including also some of the thwarted plots, expressive motives seem to have provided an essential part of the underlying incentives. In some cases, including 9/11 itself, it is likely that expressive motives were predominant. In other cases such motives may have been mixed with instrumental ones. However, apart from aiming to heighten the general fear and discomfort in Western and Westernized societies, the instrumental motives sometimes seem to have been of a more diffuse character, as in the case of the explosions set off by terrorists in London in July 2005 as well as twice in Bali, in October 2002 and 2005.

The maritime sector exposed When the motives behind a terrorist act are expressive ones, it becomes extremely important and almost a constituent part of the act itself to attract extensive attention and get far-flung media coverage. Accordingly, expressive motives make terrorist acts particularly demanding in this respect. Added to this the magnitude of the 9/11 attack against the World Trade Center has a dwarfing effect on smaller terrorist actions, making these less noticeable. Expressive motives may therefore incite attempts to compensate for this and to attract extensive attention either by the magnitude of the havoc caused, or by the nature of the targets selected – or both. This brings us to the maritime sector, including also the threat of what A. Acharya in his chapter refers to as a ‘maritime spectacular’. For one thing, the maritime sector may become increasingly attractive to actual or would-be terrorists exactly because it may be seen as offering opportunities for terrorist operations in forms that are new and spectacular, and therefore likely to catch big headlines and possibly to cause substantial fear and shock as well. Moreover, there is another reason why targets in the maritime domain may appear to be of interest to groups and individuals that harbour expressive motives for terrorism. Most of these groups and individuals seem, for the time being at least, to share one and the same basic outlook marked by a distinct and strong anti-

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Western resentment. Hostile to and fearful of many of the ways and trends that in Western parlance are termed modernization, these are people, many of whom are also inspired by Al Qaeda methods, who are willing to take drastic steps to put spectacular and frightening obstacles in the way of what they see as a pestiferous Westernization, and to punish its protagonists and beneficiaries. Several targets in the maritime sector may appear suitable for this purpose. These are targets that may be seen as closely connected to Western interests and as manifestations of Western-style transformation. Accordingly, attacking such targets may serve both as a formidable demonstration of protest and a way to take vengeance on catalysts of the changes resisted. Particularly important with respect to Southeast Asian waters, attacks on maritime targets could also be expected to serve the possible instrumental terrorist motive of disrupting seaborne world trade, a substantial portion of which is dependent on Asian sea lanes.6 Moreover, in the case of instrumental motives, targets at sea may offer other advantages over onshore targets. Terrorists having managed to take control of a target at sea may not be equally vulnerable from its close surroundings. If the intention is not immediate destruction of the target, the closeness of an onshore target to neighbouring constructions, as well as the normally easier access to it, could put the terrorists’ control of the target in greater jeopardy by making it more difficult to repel attempts to wrest the control away from them. Targets at sea may prove more troublesome to get at in the first place. But if the intention is to hold on to these, for blackmail or for some other purpose, the greater degree of seclusion of maritime targets may provide valuable protection to terrorists against intrusion and prying from the outside. The latter advantage at sea to terrorists may also apply to the nightmare scenario of their taking control of a gas tanker, or another large ship laden with highly explosive material, in order to steer it into a big harbour and explode it. Not only could the takeover of such a large and mobile vehicle prove easier to conceal at sea, the takeover and the subsequent preparations for the intended terrorist action might also remain unnoticed or successfully camouflaged for a longer time, and closer up to the moment of execution. Another alarming possibility is a terrorist attack against a passenger cruise liner. As Acharya points out, today’s large cruise liners are not unlike floating World Trade Centers.7 That could make for an almost equally horrifying attack out at sea as the one against the twin towers. Moreover, to terrorists driven by instrumental motives, the hijacking of a large cruise liner could offer possibilities that neither the steering of airplanes into the twin towers nor the hijacking of the airplanes used in that operation did. Following the seizing of a cruise liner, and given present day state of the art with respect to combining explosives and electronics, the more remote position of the ship could make available to the terrorists not only more time before any final detonation, but also passengers alive in great numbers as hostages. That would provide an opening for threats, blackmailing and terrorizing in ways that were not available to the 9/11 airplane hijackers had they so wanted.

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Broadening the front against terrorism Even if attractive for several reasons to terrorists, the maritime sector also presents obstacles. Attacks against ships are probably most easily carried out in harbours or close to shore. On the open sea, the same degree of relative seclusion that can benefit terrorists if in control of a ship will work against their trying to hijack it in the first place. Accordingly, their relative seclusion serves to protect seaborne vessels, as well as other installations out at sea, against terrorist assaults. For such assaults and in particular hijackings of larger ships to succeed, special skills and resources are required. That brings us to the trade of piracy and the danger of pirates assisting terrorists. The latter possibility forms part of the background of the reported fear of an emerging nexus of piracy and terrorism.8 The suitable skills and equipment, as well as other resources necessary for terrorist operations at sea, can be acquired from several sources. What makes pirates special in this context are the operational similarities between acts of piracy and acts of maritime terrorism. Sneaking up on the target vessel, taking control of it, as well as taking hostages, are such possible similarities, in addition to the use of violence. However, it does not follow from this that fighting maritime terrorism would be best served by making the fight against piracy part of the fight against terrorism, and by dealing with pirates as if they were potential terrorists. And it would certainly not be helpful to equate piracy with terrorism.9 That assistance from pirates would be useful to would-be terrorists at sea does not mean that the former would be forthcoming in providing assistance. Despite operational similarities, pirates and maritime terrorists would to a considerable extent be competitors for the same prey. For genuine pirates there is virtually nothing to gain from cooperation with terrorists. On the contrary, terrorist acts carried out in waters where pirates operate are likely to harm the trade of the latter. Therefore, rather than treating pirates as terrorist suspects it might be a better idea to reinforce their reasons for opposing terrorism and for trying to keep terrorists away from their turf. This does not mean that piracy should be accepted or condoned in any way. On the contrary, piracy should certainly be fought, however as piracy, and not as something else. Likewise, true pirates should be pursued and brought to justice if caught, but as pirates and not as potential terrorists, and in a way that those apprehended know will make a difference. The alternative might risk a conceptual muddling together of piracy and terrorism and should therefore be avoided for another reason. As pointed out earlier, any widening of the concept of terrorism by including cases of violent misdeeds that are not traditionally understood as terrorism should be avoided. Sticking to the traditional understanding in this respect is important in order to mobilize against terrorism as a particularly hideous and inexcusable employment of violence and to maintain a broad and unified front focused on fighting it, and especially on reducing the danger of large-scale, single-act terrorism. For this purpose, cooperation among governments is important, such as the cooperation against terrorism agreed on in an Asian context within the Association of Southeast Asian Nations (ASEAN).

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Equally important, however, is the common denunciation of terrorism in public opinion, and in the various segments of the societies affected. Not only will it serve to impede recruitment to groups intent on terrorism and cause their financial support to dwindle, it is also critically important for popular support of government efforts to fight terrorism. Therefore, governments should use every opportunity to try to broaden this anti-terrorist front. In this respect it is essential that governments, their agencies, and others, do not deviate from the traditional understanding of what is terrorism by going after something else under the anti-terrorist banner. However, as indicated above, this is not the only argument for addressing the problem of piracy as one different from the danger of maritime terrorism. Actually, the interest in broadening the front against terrorism also makes a case for differentiating between piracy and terrorism in order to try to reinforce the incentives of pirates to keep terrorists away from their turf. Trying to curtail piracy does not exclude taking advantage of the harmful effects of maritime terrorism to pirates also, and of their natural interest, therefore, to keep away would-be terrorists. The appropriate instrument here is not rewards, but deterrence. Those engaged in piracy should be given to realize that not only would any of them getting involved in assistance to terrorism be chased and persecuted in the harsh ways fit for terrorists, but that such involvement would risk making the trade of piracy more difficult for them all. This might also be important because would-be maritime terrorists might be tempted to try to use piracy as a way of camouflaging preparations for terrorist acts. To the extent that genuine pirates are encouraged to keep fake ones out of their trade, and would-be maritime terrorists out of the waters of piracy, even pirates might become a de facto party to the anti-terrorist front. A similar line of argument could be applied to some of the insurgent organizations operating in the Southeast Asian region, and occasionally at sea. However, here the resort to terrorist acts by several such organizations and their occasional affiliations with transnational terrorist networks makes matters much more complicated, and the argument has to be made with substantial reservations. Even so, to the extent that the agenda and the aims of such organizations have a national, local orientation – as different, for example, from the pan-regional agenda of the Jemaah Islamiyah organization – it may not serve their interests to become involved in transnational terrorism, and with groups possessed by expressive motives for large-scale terrorist acts. The local insurgents might, therefore, come to realize that this way they would most likely be exploited for purposes that are not theirs, and in manners that could make them more vulnerable and cause their popular appeal to shrink. At least, this could benefit the efforts to defeat transnational terrorist movements intent on largescale terrorism, including maritime terrorism. Interestingly, it has been reported that even within the Jamaah Islamiyah, splits have emerged between diehard terrorists and those now considering terrorist bombings counterproductive.10

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In conclusion In addition to tracing terrorists, and pursuing known ones, there are basically three different types of instruments available in fighting terrorism, and more specifically, in trying to avert its spread into the maritime domain. The first one is that of purely preventive measures that aim at curtailing the opportunities for successfully preparing and carrying out terrorist operations. In the preceding chapter by J. G. Christophersen several such measures aiming at preventing terrorist acts at sea, or assisted from the sea, are explained. Not only do these kinds of measures limit the opportunities for terrorist operations at or from sea, they will most likely also have a dissuasive effect on would-be maritime terrorists by making the preparations for terrorist actions more difficult and the outcome less certain. However, both to the shipping industry and others, some of these measures are considered costly and awkward, and the more so the more thorough and far-reaching the measures are. Yet such preventive measures cannot be made sufficiently effective to preclude any act of maritime terrorism. More instruments are needed. The second instrument is that of deterrence. The most obvious way of deterring someone from doing something is to threaten to inflict costs and other forms of punishment upon the perpetrator if the actual act is carried out. In this respect it is extremely important that those who consider conducting, or assisting in, acts of terrorism realize that not only will they be relentlessly pursued following the act, it is also important that they know that if caught they will not just be treated like other criminals; that they realize that terrorism is considered something especially hideous and inexcusable, and that they will be treated accordingly. True, this will not necessarily deter really ardent terrorists who may even be seeking martyrdom one way or another. But this kind of deterrence may not be lost on others who might consider providing critical assistance to the preparations. This is particularly important with respect to the danger of maritime terrorism because the preparation of terrorist acts at sea may require more outside and specialized assistance than on-shore acts normally do. Therefore, here in particular, one should keep in mind also what we may call ‘environmental deterrence’, the deterrent effect not of direct threats of punishment but of likely costs incurred from disturbances on the societal and operative environment in case of terrorist acts and involvement in their preparation. Potential costs may have a deterrent effect whether directly threatened or not. And, whatever the case, if likely, they may reduce the willingness to support and assist in preparations of terrorism. Moreover, even if not a product of direct threats, environmental deterrence and the potential costs that it is due to, are subject to change and can be intentionally influenced and increased. This brings us to the third instrument available in countering terrorism and its potential spillover into the maritime domain. The instrument is simply that of common and widespread moral denunciation of the method of terrorism. It is a typically ‘soft’ instrument. However, that does not mean that it is ineffective or unimportant. On the contrary, in fighting terrorism it is both important in itself and critically supportive of the two other instruments available – and of the tracking of terrorists. In

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itself it is basic to the front against terrorism and the focus on it as something particularly nasty and condemnable. This way it gives weight, as well, to the argument for trying to prevent its spread into the maritime domain. Also, it serves to increase the vigilance against signs of preparations for terrorist actions, and possibly to limit any attraction to, or actual recruitment to, terrorist supportive movements. Moreover, the distinct moral denunciation of terrorism is also critically important both in supporting the preventive measures taken against terrorism, including against maritime terrorism specifically, and in supporting measures aiming at deterring terrorists and their potential providers of assistance. And not to be overlooked, the moral denunciation of terrorist acts may constitute one particularly important factor in the environmental deterrence against supporting terrorism. Such denunciation is likely to increase and broaden the likely societal disturbances from terrorist acts in ways that may prove harmful to potential providers of assistance to terrorism. In short, the moral denunciation of terrorism is not only an important instrument by itself in combating terrorism. Indirectly, it may also add in significant ways to the obstacles and risks facing those who might consider acts of terrorism or who are being tempted to assist in their preparation. If, the common moral denunciation of resorting to terrorism were to start crumpling, the negative consequences for combating terrorism could well be profound. Especially worrying could be a relative weakening of the fight against large-scale terrorism, and of the effectiveness of efforts to prevent the spillover of this kind of terrorism to the maritime domain. Of course, this could turn out not to matter. The danger of any substantial degree of such a spillover is not great, and it may not occur anyway. But even so, the risk of maritime terrorism in a large-scale manner is a real one and should be taken seriously in view of its consequences if it were actually to occur. That includes avoiding steps that might risk impairing the front against terrorism and the uncompromising widespread moral denunciation of it.

Notes 1

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R. Herbert-Burns and L. Zucker, ‘Drawing the line between piracy and maritime terrorism’, Jane’s Intelligence Review, September 2004, p. 31. Based on a different argument the authors themselves tend, however, to equate certain instances of piracy with terrorism: by providing funding, as well as other means and skills required, acts of piracy may contribute to future terrorist acts. An instructive list of a dozen or so definitions is provided by D. J. Whittaker in Terrorism: Understanding the Global Threat, London: Longman, 2002, pp. 22–3. Despite efforts to do so the United Nations has still not reached an agreement among its member states on a standard definition. See (accessed 28 April 2006). A common characteristic attributed to terrorism in most definitions, though, is that it is the use of violence perpetrated in the pursuit of political, religious or ideological aims. The aim is not financial gain or material enrichment, as is usually the case with other forms of violent crime. Nor is instigating fear and terror. Claims that the latter is the most distinguishing feature of terrorism have occasionally been made with reference to a quote – somewhat cut out of its context – from Bruce Hoffman by which he starts defining terrorism ‘as

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John K. Skogan the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change’ (B. Hoffman, Inside Terrorism, London: Victor Gollancz, 1998, p. 43). And, of course, inducing terror is a most distinctive feature of terrorism; it has even given the method its name. But it is not exclusive to it. Dread and terror – along with violence as well – are also among the ingredients of ordinary war fighting; actually, causing terror among enemy troops and soldiers is sometimes successfully used to weaken both their will and their ability to fight on. ‘Remarks by the President in Photo Opportunity with the National Security Team’, White House, September 12, 2001. Available online at: (accessed 26 April 2006). Lawrence Freedman uses the more handy term super-terrorism. See L. Freedman, ‘The Transformation of Strategic Affairs’, Adelphi Paper 379, March 2006, p.10 and p.53. This theme is covered extensively by M. Richardson in A Time Bomb for Global Trade, Singapore: The Institute of Southeast Asian Studies, 2004. The danger of this kind of terrorist attack is also mentioned by M. Richardson in the preface to his book, but due to the theme of the latter not further elaborated there, see ibid. Warnings about this kind of nexus are well published. See for instance G. Luft and A. Korin, ‘Terrorism goes to sea’, Foreign Affairs, vol. 83, no. 6, November/December 2004. Also, however, see C. N. Dragonette, ‘Lost at sea’, Letter to the Editor, Foreign Affairs, vol. 84, no. 2, March/April 2005), 174–5. An example of logic going astray is the argument that when – and if – piracy is being used to get money for the funding of terrorist activities, piracy should really be regarded as an integral part of terrorism. Like special skills and other resources needed for maritime terrorism, financial funding, too, can be obtained in many ways. Some are legal and others illegal. With regard to the latter, one means of funding that has been used to get revenues for violent activities that include acts of terrorism, is human trafficking and prostitution. Does that make the latter an integral part of terrorism? See ‘Southeast Asian Counter-Terrorism after “Bali 2”’, IISS Strategic Comments, vol.11, issue 8, October 2005.

14 Reflections on the changing maritime security environment Kwa Chong Guan

Towards a maritime perspective of Southeast Asia The post-1945 struggles of Southeast Asian countries against the European colonial powers for independence and freedom were fought on land and for land. A consequence of this struggle on land and for land has been that we value the land we fought for more than the sea that surrounds the land. The sea does not also appear to have featured in the post-colonial construction of national unity and identity.1 But as these reflections argue, in the long cycles of history it is the sea that has shaped and defined who we are more than the land. The sea is not an empty void, in contrast to the land with its sites of memories that defines who we are as a nation. Just as land as space has been defined by a dynamic and conflicting spatiality, so too has the sea as space been defined by a conflicting set of spatial functions. These reflections are a preliminary attempt to look at Southeast Asia from the sea, rather than the land, and the implications of such a perspective for our understanding of maritime security. The starting point of these reflections is the series of epic voyages of the Three Jewel Eunuch Admiral Zheng He from Nanjing into the South China Sea to the Indian Ocean which some of us commemorated the six hundredth anniversary of in 2005. Between 1405 and 1433, seven major and a number of lesser expeditions were launched and reached the Persian Gulf. The major expeditions comprised upwards of 200 vessels crewed by some 37,000 sailors and soldiers. The rationale for these epic expeditions continues to be as controversial today as it was 600 years ago, when these voyages were abruptly terminated and their records destroyed.2 Were these voyages a potential turning point of world history if they had not been abruptly terminated by Ming court politics and more important, geostrategic developments which lead the Ming court to turn inland to defend its continental boundaries by building the Great Wall?

Trading worlds of the South China Sea and the Indian Ocean A major rationale for Zhu Di, the Yongle emperor, despatching Zheng He on his epic voyages appears to have been to establish the prestige of his new dynasty, and renew and re-establish the Middle Kingdom’s links with the trading world of its

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South Seas and further west, upon which it had, since the time of the Song Dynasty, become increasingly dependent upon for a growing range of consumer goods and ‘superfluous things’3 that the Chinese demanded. The ‘Lands below the Winds’4 as the Arab navigators knew Southeast Asia today, was located in the middle of the ‘single ocean’ 5 that linked the major Chinese port cities of Guangzhou and Quanzhou with the Persian Gulf ports of Siraf or Basra. For the Malay world emporiums from Aceh to Jolo that emerged to service this ‘Maritime Silk Road’ the sea was an integral part of their world that gave meaning to their lives. The sea was a mystical essence which gave life and meaning to the port.6 If the strip of land in the river estuary and the hinterland behind it was one half of the world of the Malacca Straits emporiums, then the sea they looked out to was the other half.7 But just as the land on which the port city sat was of no strategic significance and could be abandoned, and the port moved down or upstream or elsewhere, because what mattered were the trade links and networks, so too the sea was asocial ‘other’ space that had to be traversed in search of wealth. The sea was non-territory open to all sailors and traders to cross.8 What mattered were the ships and boats to cross this void. That had to be regulated and controlled. The symbolism and mythology of the ship therefore defined much of the identity of the Malay emporium world. Control and regulation of the ship rather than the sea was the issue. Zheng He and Alfonso de Albuquerque were to change radically this Malay conception of the sea.

Projecting naval power for domination and control of the sea Were the Ming voyages nothing more than a massive display of peace and goodwill, ‘to confer presents on the barbarians in order to manifest the transforming power of the imperial virtue’ as Zheng He declared in a memorial9 he erected in 1432 in the temple of the Heavenly Queen (Dian-fei) at Zhan-lo, Fujian, to commemorate his epic voyages? Or, were these Ming expeditions precursors of the Portuguese voyages lead by Vasco da Gama a bare 50 years later which lead to the establishment of the Estado da India that fought to control Asian trade for the next three centuries? These Portuguese voyages were the extension into the ocean of a series of European political conflicts and rivalries to protect and extend their growing trade. Between 1450 and 1495 a series of Papal bulls divided the world oceans between Portugal and Spain to explore and control for their trade (and in the process, convert the natives to Christianity). This drive to control and dominate the seas was succinctly stated by Sir Walter Raleigh (1552–1618): Whosever commands the sea commands the trade; whosever commands the trade of the world commands the riches of the world, and consequently, the world itself.10 A consequence of this Iberian competition for command of the sea was that Spain claimed the islands that today form the Philippines, while Portugal claimed the islands to the west. But Portugal’s assertions to command the sea routes in the

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Indian Ocean were challenged not only by Asian potentates, but more critically, by the emerging merchant capitalist economies of England and Holland. It was this rivalry between the English, Dutch and French East India Companies and against the older Estado da India for command of the sea between 1600 and 1800 that effectively defined the region we know as Southeast Asia today.11 A Dutch capture of the Portuguese carrack the Santa Catarina on 25 February 1603 was a turning point in this contest for command of the sea.12 Forced to respond to Portuguese charges of piracy, the Dutch engaged Hugo Grotius to draft a defence of their action. The text of Grotius’ defence of the Dutch, Mare liberum, sive de jure quod batavis competi ad indicana commercia dissertatio or, ‘The freedom of the seas, or the right which belongs to the Dutch to take part in the East Indian trade’ has since become the benchmark text of the case for the freedom of the sea up to today. In response to Grotius, the monk Seraphim de Freitas drafted De justo imperio luistanorum asiatico (‘The imperial right of the Portuguese in Asia’) and John Selden was commissioned by the Crown to draft Mare clausum, seu de dominio maris libri duo (‘The closed sea, or two books concerning the rule over the sea’).13 These and other tracts were major contributions to a ‘Battle of the Books’ about how to construct the spaces of the seas that the Portuguese, Dutch and English were sailing into. The British found it useful to uphold this definition of the freedom of the sea for the smooth flow of trade for as long as ‘Britannia ruled the waves’. A. T. Mahan recognized that the British Empire was underpinned by maritime commerce and naval power to protect it.14 Mahan’s case for naval supremacy and the will to achieve it by battle has shaped naval strategy through the twentieth century. The Second World War in the Pacific was essentially decided in the naval battles between the Japanese and the Americans, especially at Midway. These battles shaped US naval strategy for the remainder of the twentieth century, culminating in the ‘From the Sea’ and ‘Forward ... from the Sea’ strategies of the 1990s. Is Mahan’s understanding of naval strategy alive and well in the twenty first century?15 If nation states, and especially the major powers, continue to define their national interests in terms of a balance of power at sea, then a blue water navy capable of executing a Mahan strategy for dominance of the high seas is an essential component of that balance of power. ASEAN will continue to witness the major powers developing and maintaining blue water navies to project power into the South China Sea and the Indian Ocean through its waters. Both China and India are actively upgrading their naval strategies and the prospect for ASEAN to witness a Chinese or Indian carrier battle group, the modern equivalent of the Ming treasure ships, sail through the Straits of Malacca is good.

UNCLOS and the continued domination of the seas If the sixteenth-century ‘Battle of the Books’ was about constructing ocean spaces to meet the needs of early modern mercantilist capitalism, then arguably, the Third United Nations Law of the Sea Conference and its predecessors has been about the reconstruction of ocean spaces to fuel the demands of modern

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industrial capitalism. Just as issues of sovereignty of the seas underpinned J. Selden’s arguments for a mare clausum that the state could exercise jurisdiction over, so too the United Nations Convention on the Law of the Sea (UNCLOS) adopted in Montego Bay, Jamaica, on 10 December 1982 and entered into force on 16 November 1994 is about the sovereignty that coastal states are allowed to exercise over adjacent seas. Under the provisions of UNCLOS 151 coastal states have claimed sovereign rights over adjacent seas and 54 have claimed a 200 mile exclusive economic zone (EEZ). Unsurprisingly, these new claims to sovereign rights over the seas have reiterated a number of old territorial and maritime disputes which R. Emmers and L. Prabhakar review in their contributions to this volume. China’s claim to the Nansha Islands, otherwise known as the Spratly Islands, is based on its reading of the UNCLOS provisions for demarcation of territorial seas.16 How are Indonesian and Philippine claims to sovereignty over their archipelagic waters to be balanced with the need by other user states for freedom of navigation and over flight through and over the archipelagic states? It is an issue R. Beckman tackles in his paper in this volume. UNCLOS has placed new and heavy demands on the Association of Southeast Asian Nations (ASEAN) navies to develop the capability to support their state’s claims to sovereignty over territorial waters and a 200 mile EEZ. UNCLOS may have stressed the ‘peaceful use of the sea’, but it unfortunately did not specify what constitutes ‘peaceful use of the sea’. We may agree that the EEZ is a special regime, neither high seas nor territorial waters, through which there is freedom of navigation and over flight, subject to the principle of ‘due regard’ and ‘non-abuse of the rights of others’. But we are unable to agree on what constitutes ‘due regard’ and ‘non-abuse of the rights’ among a much wider area of disagreement about the provisions of UNCLOS. This makes the navy’s task of monitoring and regulating maritime activities far more complex. What differentiates (acceptable) maritime scientific research and (unacceptable) hydrographic surveying? The challenge for not only ASEAN, but all other regional navies, is how to decide what is an acceptable level of military activity within their EEZ and how to respond to an ‘unacceptable level of military activity’. Current trends indicate that intelligence gathering and other military activities in EEZs are on the rise and encounters with coastal state navies may spiral into a crisis. The crisis that followed the 1 April 2001 Chinese interception of a United States EP-3E surveillance plane is the most spectacular of a recent series of encounters.17 A week before this EP-3E incident, a Chinese frigate came within 100 metres of the US Navy’s hydrographic survey vessel Bowditch collecting data within China’s EEZ in the Yellow Sea and forced it to desist. In March 2001 India also protested the Bowditch’s activities 30 nautical miles from its Nicobar Island. Earlier, in January, India also protested against the surveying activities of HMS Scott 190 nautical miles from Diu and near Porbadnar. Japan has detected an increasing number of Chinese and North Korean vessels collecting intelligence within its waters. In December 2001 Japanese coast guard vessels pursued a ‘Chinese’ fishing vessel, which its crew scuttled and sank with the vessel when it

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was surrounded by the Japanese coast guard. The vessel was raised in September 2002 and identified as a North Korean intelligence ship and is now exhibited in the Maritime Museum in Tokyo.

ASEAN response: regionalize maritime security The ASEAN response to ‘unacceptable levels of military activity’ in their waters will be to try to develop their capacity for more effective surveillance and enforcement of their rights over their waters. But it is unlikely that ASEAN navies will have the capability or political support and will to block the Bowditch or the PLA’s ‘oceanographic research’ vessel Xiangyang Hong 09 if it is found operating within the EEZ of ASEAN coastal states. ASEAN’s best policy option appears to be to extend its ASEAN Regional Forum (ARF) strategy of engaging and enmeshing other regional navies in building confidence and transparency. At the operational level, they will seek to engage the major navies of the region in joint exercises and training, as well as exchange of port visits with the hope of promoting transparency. The navies of Malaysia and Singapore lead in having a long standing series of exercises codenamed ‘Flying Fish’ and ‘Starfish’ with their Australian, British and New Zealand counterparts under the aegis of the Five Power Defence Arrangement (FPDA). More recently, they have joined the Indonesian and Thai navies in engaging the US Seventh Fleet in a series of ‘Carat’ exercises. Contingency planning for Search and Rescue Operations under the ARF’s Intersessional Group on Confidence Building Measures (CBMs) is another step in interlocking the region’s naval capabilities. This strategy of engaging and enmeshing regional navies to build confidence and promote transparency has to be underpinned at the policy level by a network of forums and regimes to frame naval cooperation. The FPDA is probably the longest established forum for naval cooperation. The Western Pacific Naval Symposium and the ARF’s Intersessional Group on Confidence Building Measures are other forums. The challenge is to develop more such forums to promote and implement naval cooperation rather than competition by moving confidence building from declaratory measures such as acceptance of the UNCLOS or the ASEAN Treaty of Amity and Cooperation to transparency measures focusing especially on information and data exchange, joint exercising and training, and to constraint measures. The latter would include various risk reduction agreements, especially Incidents at Sea agreements,18 to pre-empt inherently dangerous or inadvertent naval manoeuvres. UNCLOS with all its ambiguities, as S. Bateman points out in his paper in this volume, remains the overarching framework and, arguably, confidence building measure (CBM), for the management of conflicting claims to sovereignty over offshore islands and other maritime disputes. We need some agreement on guidelines for how these ambiguous UNCLOS provisions, especially on the EEZ, are to be interpreted.19 Promoting naval cooperation is part of the wider problem of maritime security in Southeast Asia, which has at its roots issues of conflicting claims to sovereignty over bodies of seas. A separate series of forums has evolved to explore the

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prospects of a ‘softer’ multilateral and institutional approach to managing disputed maritime claims and overlapping maritime jurisdictions and avoid the ‘hard’ security of naval cooperation. A series of Workshops on Managing Potential Conflict in the South China Sea has studied the prospects of joint development of the resources of the Spratlys while avoiding issues of their sovereignty. The ARF has since its inception in 1994 emerged as the overarching forum for a multilateral cooperative security regime in the region. In May 2006 ASEAN Defence Ministers initiated a long-overdue dialogue which may become an annual event. A growing number of policy institutions have formed networks to support these ASEAN and ARF initiatives for cooperative security. The ASEAN Institutes of Strategic and International Studies, established in 1984, is the oldest network of strategic studies institutions in the region. The Council for Security Cooperation in the Asia Pacific (CSCAP) has positioned itself as a parallel ‘Track-2’ network in support of the official ‘Track-1’ ARF. A Working Group (now Study Group) of CSCAP has been examining issues of maritime cooperation leading to a number of policy proposals to the ARF.20 The challenge for ASEAN is that it may end up with two categories of forums with incompatible conceptual underpinnings. Its forums to promote confidence building measures for naval cooperation are premised on ‘hard’ realist assumptions of state security being dependent upon the development and deployment of military force. In contrast, its forums on multilateral cooperative security are dedicated to establishing ‘regimes’ that will seek to improve the quality and quantity of information between states, install legal frameworks with liability for actions by states with the intention of reducing transaction costs in their interactions.21 Can these two emerging categories of forums be linked, or should they be delinked, because as the Director of the International Institute for Strategic Studies intoned, ‘the development of cooperative security mechanisms must not obscure the need to assure that an overall balance of power remains’.22

New realities: ocean management regimes The options for ASEAN navies to respond to the projection of naval power in furtherance of maritime conflicts and competing jurisdiction claims to seas are, at the beginning of the twenty-first century, slightly wider and far more complex than at the close of the last century. These options open to ASEAN navies are a consequence of new and more complex demands on naval power in the twenty first century. The principal drivers of these new and increasing complex demands on naval power are a transformation of the naval environment caused by globalization23 and are transforming the way we construct the spaces of the seas. Trade as one of the drivers of this cycle of globalization, as in an earlier cycle of globalization at the end of the eighteenth and beginning of the nineteenth centuries which created the modern world, is forcing us to reconstruct the network of ports and the sea lanes of communication (SLOCs) that links them. Ensuring the safety of these SLOCs in more efficient monitoring and regulating of traffic in

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congested stretches of seas, especially the Straits of Malacca, or measures to reduce the prospect of accidents at sea and in ports takes on new dimensions as J. Ho points out in his essay, because the disruption of shipping undermines the network of ports through which flows the trade that underlies the globalization of our economies upon which we have predicated our economic well-being. The global networking of an increasing number of regional ports around a few megahub ports such as Hong Kong, Osaka, Shanghai and Singapore for more efficient logistics and supply chain management means that a disruption or closure of any of these hub ports affects trade and shipping more than the closure of an SLOC. The challenges to maritime traffic are not only old-fashioned piracy, which is on the increase, but now also organized crime hijack of ships. The problem of monitoring container cargoes has become more complex post-9/11, with the threat of global terrorist networks attempting to ship weapons of mass destruction in containers. The Regional Maritime Security Initiative proposed by the US in response to these new issues of maritime security is, as C. Stryken points out, controversial. The probability of a post-9/11 transnational terrorist attack on sea lanes or a hub port discussed by A. Acharya in his paper in this volume may now be low, but the outcome of such an attack would have high consequences and as such change our understanding of what constitutes maritime security, while blurring the distinction between security and safety. For Mahan the high seas were essentially an arena within which navies manoeuvred for control and dominance of the sea lanes and its chokepoints. Globalization has transformed the sea into a resource to be managed.24 The widening search and drilling for offshore oil and gas and mining of other seabed minerals, coupled with a growing demand for fish and other marine food resources, demands that navies traditionally charged with ensuring the security of the state must now either develop new capabilities for protection of offshore assets or forms of cooperation with coast guards and other government agencies for enforcement of the law in the seas claimed by the state. Navies and other national agencies will increasingly have to work in support of existing maritime cooperation conventions for maritime safety and the environment promulgated by the International Maritime Organization. For much of the preceding century naval strategy was about how to project naval power for control of the high seas. The challenge for naval strategy in the twenty-first century appears to be more about how to build good order at sea for the safety of maritime assets and shipping.

Conclusion Putting in place ocean management regimes for good order at sea assumes that we are aware and appreciative of how the sea impacts on us and therefore are prepared to join other agencies at the national level to work for a regional approach to maritime security and safety. The starting point of these reflections on the transformation of maritime security in Southeast Asia at the beginning of the twenty-first century was the need for an enhanced awareness of the sea in our

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social memories of who we are as a people and region.25 These reflections end on the note that without social memories of the sea we are unlikely to commit to regimes for good order at sea.

Notes 1

2

3 4 5

6 7

8 9 10 11 12

Instead, ethnicity and its consequences on the cultural matrix of the new nation states has been one of the main drivers of national unity and identity. See C. van Dijk, ‘Java, Indonesia and Southeast Asia: how important is the Java Sea?’ in V. J. Houben, H. M. J. Maier and W. van der Molen (eds) Looking in Odd Mirrors: the Java Sea, Semaian 5, Leiden: Vakgroep talen en Culturen van Zuidoost-Azië en Oceanië, Risksuniversiteit te Leiden, 1992, pp. 289–301; also A. C. Milner, ‘“Malayness”: confrontation, innovation and discourse’, in Houben, Maier and van der Molen (eds) Looking in Odd Mirrors, pp. 43–59. G. Wade, ‘The Zheng He voyages: a reassessment’, Journal of the Malaysian Branch of the Royal Asiatic Society 78/I, 2005, pp. 37–58, also available as Asia Research Institute Working Paper no. 31, October 2004. Available online at: (accessed 3 July 2006). The ‘Treatise on Superfluous Things’ or Zhang wu zhi, was the title of a popular Ming dynasty manual on connoisseurship by Wen Zhengheng. See P. J. Rivers, ‘Negeri below and above the wind: Malacca and Cathay’, Journal of the Malaysian Branch of the Royal Asiatic Society 78/II, 2005, pp. 1–32 for the variant Malay and European interpretations of this toponym in its Malay context. See O. W. Wolters, History, Culture, and Region in Southeast Asian Perspectives, revised edn, Ithaca: Southeast Asia Program Publications., Cornell University and Singapore: Institute of Southeast Asian Studies, 1999, pp. 44–5 for an elaboration of the seas from the east coast of Africa to China forming ‘one single ocean’. Also note K. N. Chaudhuri, Trade and Civilisation in the Indian Ocean: An Economic History from the Rise of Islam to 1750, New York: Cambridge University Press, 1985, p. 119, on structures in the long cycle of Indian Ocean history. H. M. J. Maier, ‘The Malays and the sea: the waves and the Java Sea’, in Houben, Maier and van der Molen (eds) Looking in Odd Mirrors, pp. 1–26. See the papers by S. H. Leong and J. W. Christie among others in J. KathirithambyWells and J. Villiers (eds) The Southeast Asian Port and Polity: Rise and Demise, Singapore: Singapore University Press, 1990, for the background to the Southeast Asian emporiums. In contrast, the Mediterranean was for the Romans mare nostrum, space to be secured and controlled, perhaps dominated – M. M. du Jourdin, Europe and the Sea, translated by T. L. Fagan, Oxford: Blackwell, 1993. Translation of this stele by J. J. L. Duyvendak, ‘The true dates of the Chinese maritime expeditions in the early fifteenth century’, T’oung Pao 34, Leiden, 1938, p. 349. R. D. Heinl, The Dictionary of Military Quotations, Annapolis: United States Naval Institute, 1978, p. 288. See A. Reid (ed.), Southeast Asia in the Early Modern Era: Trade, Power, and Belief, Ithaca: Cornell University Press, 1993, pp. 3–19. M. van Ittersum, ‘Hugo Grotius in context: Van Heemskerck’s capture of the Santa Catarina and its justification in de jure praedae (1604–1606)’, Asian Journal of Social Sciences 31/III, 2003, pp. 511–548; P. Borschberg, ‘The seizure of the Santa Catarina revisited: the Portuguese Empire in Asia, VOC politics and the origins of the Dutch Johor Alliance (1602–1616)’, Journal of Southeast Asian Studies 33/I, February 2002, pp. 31–62.

The changing maritime security environment 13 14

15

16 17 18 19 20

21

22 23

24 25

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J. Selden, Of the Dominion, or Ownership of the Sea: Two Books, New York: Arno, 1972. See P. Kennedy’s 1976 revision of Mahan’s ideas and influence by counterposing him with H. J. Mackinder, ‘the prophet of land power’ in ‘Mahan versus Mackinder: two interpretations of British sea power’, in Kennedy, Strategy and Diplomacy, 1870–1945, London: Fontana Press, 1984, and also Kennedy, The Rise and Fall of British Naval Mastery, London: Fontana Press 1991, reprinted, chapter 7. See P. A. Crowl, ‘Alfred Thayer Mahan: the naval historian’, in P. Paret (ed.) Makers of Modern Strategy: From Machiavelli to the Nuclear Age, Princeton: Princeton University Press, 1986, pp. 444–80 for a critical appraisal, compare this with G. Till, Seapower: A Guide for the Twenty-first Century, London: F. Cass, 2004, drawing on Mahan to frame his approach to seapower. See for an example of China’s statement of its claim, S. Y. Pan, The Petropolitics of the Nansha Islands: China’s Indisputable Legal Case, translated by D. Chen, Hong Kong: Economic Information & Agency [sic], July 1996. See for an official US version of these incidents, J. Bussert, ‘China taps many resources for coastal defence’, Signal, AFCEA, November 2002. The 1972 US–Soviet Navy-to-Navy (INCSEA) concluded as part of a Cold War détente is the benchmark CBM for major-power navies. See for instance, Guidelines for Navigation and Overflight in the Exclusive Economic Zone, EEZ Group 21, Ocean Policy Research Foundation, Tokyo, Japan, 16 September 2005. Most of the deliberations of this CSCAP Working Group have been edited by S. Bateman and S. Bates and published by the Strategic and Defence Studies Centre as part of its Canberra Papers (CP) on Strategy and Defence: among others, Calming the Waters: Initiatives for Asia Pacific Maritime Cooperation, CP 114, 1996; The Seas Unite: Maritime Cooperation in the Asia Pacific Region, CP 118, 1996; Regional Maritime Management and Security, CP 124, 1998; Shipping and Regional Security, CP129, 1998; and Maritime Cooperation in the Asia-Pacific Region: Current Situation and Prospects, CP132, 1999. A more recent publication is P. Cozens and Joanna Mossop (eds.) Capacity Building for Maritime Security Cooperation in the Asia-Pacific, Wellington: Centre for Strategic Studies, New Zealand, 2005. See M. J. Valencia, ‘Prospects for multilateral maritime regime building in Asia’, in S. Bateman (ed.) Maritime Cooperation in the Asia-Pacific Region: Current Situation and Prospects, Canberra Papers on Strategy and Defence no. 132, Canberra: Strategic and Defence Studies Centre, Research School of Pacific and Asian Studies, Australian National University, 1999, pp. 27–67. J. Chipman, ‘The new regionalism: avoiding strategic hubris’, in D. Roy (ed.) The New Security Agenda in the Asia-Pacific Region, London: Macmillan, 1997, p. 21. See the essays in S. J. Tangredi (ed.) Globalization and Maritime Power, Washington, DC: National Defense University, Institute for National Strategic Studies, 2002, exploring the impact of globalization on the maritime environment and its implications for defence planning. G. Till, Seapower, chapter 10 on securing the sea as a resource, as a means of transportation and means of exchanging information. In contrast there appears to be awareness of a distinct social memory of the Mediterranean, on which see the classic study of F. Braudel, The Mediterranean and the Mediterranean World in the Age of Philip II, translated by Sian Reynolds, New York: Harper and Row, 1966 and also Braudel, Memory and the Mediterranean in R. de Ayala and P. Braudel (eds), translated by Sian Reynolds, New York: Knopf, 2001.

PART V

Afterword

15 The important role of shipping Challenges ahead Tay Lim Heng

The shipping industry: foundation of a globalized economy Shipping is the life blood of the global economy and is responsible for the carriage of 90 per cent of world trade, according to the International Maritime Organization (IMO). One cannot overemphasize the important contribution of this industry to the global economy. Without shipping, there would be no globalization, the ‘China effect’ would be impossible, societies would have remained separated, there would be no interchange of cultures, nations would not be able to realize their full economic potential and in the words of the Secretary-General of the IMO, ‘half the world would starve and the other half would freeze’.1 The global economy could not function if it were not for ships and the shipping industry. Today, no nation can be fully self-sufficient. Every country is involved, at one level or another, in the process of selling what it produces and acquiring what it lacks. In 2004 alone, the industry shipped around 6.8 billion tonnes of goods over a distance of about 4 billion miles resulting in an astounding total of over 28 billion tonne-miles of trade. If the goods transported were to consist only of rice, we would have enough to feed Southeast Asia for 6,200 centuries! Advances in technology and management have made shipping the mainstay of world trade. Progress on these fronts allowed generalized transport costs in the shelf price of consumer goods to remain low. For example, shipping costs account for only around 0.8 per cent of the shelf price of a DVD player and 1 per cent of a can of beer. It is without doubt that falling shipping costs is a major factor contributing to the expansion of seaborne trade from less than 6 billion tonne-miles in 1965 to the latest full-year figure of 28 billion tonne-miles in 2004. Southeast Asia is one of the most important regions in the world to the shipping industry. The region is collectively the fourth most important maritime region in the world, after the EU, East Asia and North America. Southeast Asiandomiciled vessels accounted for more than 45 million or 5.5 per cent of the world’s deadweight tonnage as at January 2005. Looking at Singapore, the maritime industry is a significant part of the economy, having generated S$7.9 billion in direct value added and contributed to 4.9 per cent of Singapore’s gross domestic product (GDP) in 2002. Including the

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indirect value added would raise the industry’s contribution to account for 7.3 per cent of Singapore’s GDP. The industry is also responsible for the employment of around 86,500 people, which is 4.3 per cent of nationwide employment. Singapore is the world’s busiest port in terms of shipping tonnage receiving more than 1 billion gross registered tonnes on an annual basis. The country is also the world’s busiest bunkering centre with sales volume double that achieved by its nearest rival. The container port can claim to be the largest container transhipment hub in the world responsible for handling 25 per cent of the world’s transhipment traffic. Singapore is also reputed to be the world’s third largest oil refining centre and largest vehicle transhipment hub in Asia, and the country’s shipyards are responsible for 70 per cent of the global market share in the conversion of Floating Production Storage Offloading (FPSO), 70 per cent in jack-up rigs and 20 per cent of ship repair.

Challenges faced by the shipping industry As the backbone of international trade, shipping is a complex and extremely volatile business. It is worth noting that the industry has gone through no fewer than 14 business cycles since the beginning of modern shipping in 1869 and the duration of these cycles has become shorter and fluctuations more severe since the end of the Second World War. The ability to manage volatility in the shipping industry has always been the primary concern of the shipping community, hence the saying ‘timing is everything’. Take for instance the dry bulk market where a charterer wants to time charter a panamax vessel of 72,000 deadweight tonnes to carry iron ore from Australia to Japan for a year. To make this decision in May 2004 would have cost the charterer US$7 million. Delay this decision by six months and he would have to pay double the price at US$14 million. Should he wait for a further four months, he would have saved US$7 million on charter costs, enough to charter another vessel of 51,000 deadweight tonnes to ply the same trade. Things are even more dramatic for the oil trade which accounted for 41 per cent of total seaborne trade in volume terms. A charterer wanting to spot charter a very large crude carrier (VLCC) to transport crude oil from the Middle East to Japan would have to fork out US$70,000 a day in June 2004. Five months later, freight rates would soar to US$250,000 before slumping to just one-tenth of that in early June 2005!

The new golden age of shipping – managing the shipping business cycle The recent years beginning from 2003 have been termed by the shipping industry as the ‘New Golden Age’ of shipping. With the current rate of growth unabated at 4 per cent, world seaborne trade would cross the 7 billion tonnes milestone in 2005. Measured in tonne-miles, we should see world seaborne trade reaching a historic 30 billion mark in the coming year.

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Strong performance by the Chinese economy is expected to continue to fuel this growth, in particular, of crude oil and iron ore shipments which reached an all-time record of 2.3 billion and 590 million tonnes respectively in 2004. The export of manufactured goods from China is also expected to push the volume of containerized traffic transported on the trans-Pacific and Europe–Far East trade routes in particular, to new heights. Containers transported on these trades, two of the largest in the world, grew by 19 per cent to reach an unprecedented 30.1 million twenty-foot equivalent units (TEUs) in 2004. The rate of growth was one of the highest achieved since the advent of containerization. The optimism for continuous growth is reflected in the orderbooks of shipyards which totalled 223.3 million deadweight tonnes as at October 2005. Over the next three years, the tonnage on order is equivalent to the total number of newbuilding deliveries in the past five years. These huge orderbooks have generated concerns by many in the industry that supply might grow ahead of demand and trigger another downturn in the business cycle. Some have even gone as far as to say that the beginning of the downturn is expected to take place by the middle of 2006. On the other hand, there are others who believe that the burgeoning demand from China and other emerging economies will continue to fuel demand expansion although the rate of growth will continue at a slower pace. Be it a hard or soft landing, it is without doubt that the cycle will run its course and those who want to play in the game will have to juggle with the considerations and risks involved and determine the best course ahead. On top of the shipping cycle, the shipping industry also has to contend with a host of other challenges which include dealing with navigational hazards, safety issues, weather conditions, environmental issues and maritime security.

The issue of maritime security Maritime security, in a sense, is not new to the maritime community who have had to deal with issues related to piracy, blockades, wars and rumours of war from time immemorial. However, the events that occurred on September 11 gave it a much wider scope and a greater sense of importance. Five years have since passed and many security-related measures have been implemented. A key consideration in these issues is the element of cost. What are the costs associated with maritime security and who will bear the burden? The Straits of Malacca and Singapore form a key maritime passageway between Europe, the Middle East, Africa and East Asia. It has been estimated that the straits alone carry 60,000 vessels per year, one-third of the world’s trade and half of all oil shipments carried by sea. The straits provide the shortest sea route between the Middle East/Europe and the Asia Pacific. The next shortest alternative route adds on about three days of sea voyage and with it significant costs. It is therefore in the keen interest of the international community that the straits be always kept open, secure and safe. Any disruptive event can significantly upset trade and incur great costs.

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Singapore is very much aware of the vulnerabilities to the global trading system, and the country’s economy, should a major incident occur and disrupt trade in a major way. The global supply chain is only as secure as its weakest link, and everyone will benefit if all parties do their part to secure their respective nodes and links. The economic system cannot afford to have ports shut down and cargo movement impeded in such a situation. Rather, a set of procedures is needed to enable trade to keep flowing, and in thus doing, minimize the potential damage from such an attack. Some of the broad questions thrown up that deserve to be studied further are: Will maritime security requirements dictate the setting in which world trade will henceforth be carried out? Will it alter prevailing trading patterns and practices? Will it create a new divide between the developed and developing world as it disadvantages those that do not have the means to implement them? And how will developments in maritime security initiatives affect the countries in our region which are so dependent on seaborne trade?

Conclusion In conclusion, the importance of shipping to the world economic system cannot be overemphasized. It is the availability of this low cost and efficient transport alternative that makes possible the benefits of globalization in production and consumption. Security measures implemented thus far have not had a huge impact on the efficiency of shipping, but we should be careful about striking the right balance between the need for security and efficiency.

Note 1

E. Mitropoulos, Opening address at the ‘World Maritime Day Parallel Event’, Lisbon, 15 November 2005.

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Speeches Admiral Dato’ Sri Mohd Anwar bin HJ Mohd Nor, Chief of Navy, Royal Malaysian Navy, ‘Malaysia’s approach’, Presentation at ARF Regional Cooperation in Maritime Security Conference, 2–4 March 2005. Alatas, HE A., Minister for Foreign Affairs of Indonesia, Address Opening The Second Workshop on ‘Managing Potential Conflicts in the South China Sea’, Bandung, Indonesia, 15 July 1991. Chalk, P., ‘Threats to the maritime environment: piracy and terrorism’,RAND Stakeholder Consultation, Ispra, Italy, 28–30 October 2002. Cilluffo, F., ‘Threat posed from the convergence of organized crime, drug trafficking, and terrorism’, Congressional Testimony before the U.S. House Committee on the Judiciary’s Subcommittee on Crime, 13 December 2000. Available online at: (accessed 18 May 2005). Fargo, T., ‘Military operations and law conference’, Victoria, British Columbia, 3 May 2004, p. 44. Available online at: (accessed 1 May 2006). —— ‘Responding to transnational threats’, APCSS Biennial Conference, Ilikai Waikiki Hotel Ballroom, 16 June 2004. Available online at: (accessed 1 May 2006). ‘Keynote Address of Professor S. Jayakumar, Deputy Prime Minister and Law Minister of the Republic of Singapore’, at the 2005 conference on Law of the Sea: Issues in the East and South China Seas, held in Xiamen, 12 March 2005, reproduced in ‘Law of the Sea has to keep up with terrorism threats’, The Straits Times, 16 March 2005. Mitropoulos, E., Opening address at the ‘World Maritime Day Parallel Event’, Lisbon, 15 November 2005.

Bibliography 217 Testimony of Admiral T. B. Fargo, Commander, US Pacific Command, before the House Armed Services Committee, United States House of Representatives Regarding U.S. Pacific Command Posture, 31 March 2004. Available online at: (accessed 22 May 2005).

Index

Abu Sayyaf Group 27, 62, 69, 70, 79, 80, 84, 85 Accompanying Sea Security Teams 28 Aceh Province 6, 25, 65 Achille Lauro 78, 79, 107, 154, 181 air maritime joint patrols 30, 73–4 airforce modernization 39–40, 44–8 Al Qaeda 78, 79, 81, 86, 177, 183 al-Faruq, Omar 79–80 Al-Nashiri, Abdulrahim Mohammed Abda 86 Albuquerque, Alfonso de 190 Ambalat 42 anonymity of individuals 165–6 Antartic treaty 11 archipelagic sealanes 103–4, 117–31; background 117; conclusions 129–31; historical development of legal regime 117–18; IMO procedures and functions 122–4; Indonesian Regulation No. 37 (2002) 125–7; outlook of archipelagic states 34, 36, 50, 51, 103; partial system proposals 121–2, 124–5; Philippines archipelago 127–9; and regimes of transit passage 119–21; UNCLOS regime 118–19 armed robbery see piracy arms build-up dynamics 37–40 arms races 45–7 ASEAN 10–12, 35, 191; and external powers 140–1; and regional security 10, 55, 111, 191, 192, 193–4; security community 10–11, 88, 184; and South China Sea 49–50, 52, 53, 54, 55–9; and territorial disputes 42–3, 45 USS Ashland 154 Asia-Pacific Economic Cooperation (APEC) 10 Asian economies, combined 21

Asian financial crisis 38–9, 111 Asian Shipowners Forum 89 Association of Southeast Asian Nations (ASEAN) as security instrument 4–5 Australia: archipalegic sea lane, Indonesian proposals 122, 126–7; and LRIT 151–2; natural gas reserves 44; and North Korean shipping 166–7 Automatic Identification System 28, 148–9 Bali bombings 5, 80, 182 Bali Concord II 11 Bandung Workshop 55 baselines, international sea 101–2 Batam meeting/agreement 16, 17 bilateralism/multilateralism 139–42 Bin Laden, Osama 84 Bowditch 192, 193 Bush, George W. 179 Cambodia: conflict 52; flag of convenience 166 catastrophic threats 138 Chalk, Peter 84 Chiang Kai-Shek 51 China 110; coordinated patrols with Indonesia 29; and current shipping cycle 203; disputes 35–6; exclusive economic zone 4–5; and hijacking 67; and hydrographic surveys 192; as important economic power 21; Indian Ocean policy 43; and Japan 8, 11; and Malacca Strait 16–17, 104, 110; military modernization, impact 39, 47; Ming dynasty voyages 189–90; naval strength 53–4; and regional dialogue 10; and Russia, strategic partnership 7–8; security concerns 9; sincere

Index cooperation 110; South China Sea, and ASEAN negotiations 55–7, 59; South China Sea, as identity issue 36–7; South China Sea, use of force 52–3 chokepoints 82–3 Chong, Noel 68 civil aviation hijackings 15 Cold War era 9–10, 35 USS Cole attack 27, 81, 83, 86, 180–1 colonialism 34–5 containerization 23–4, 195, 203 Convention on Maritime Search and Rescue 99, 107–8 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 75, 89, 99, 105, 107, 169–70 cooperative security locations 135–6, 138 criminal syndicates 70 criminals, small-scale 69 Crisis Action Planning SMEE 05–03 29 cruise liners 154, 183–4 da Gama, Vasco 190 Daley, Matthew 80, 87 Davao City Port 85 Declaration on the Conduct of the Parties in the South China Sea 53, 56, 57–8 deterrence 45–7, 185–6 Dewi Madrim 83 disputes see territorial and maritime disputes disruptive threats 138 diving operations 84 drug trafficking 166–7 East Asian Summit 111 environmental protection 72, 152 exclusive economic zones 50, 98, 102–3, 192, 193; and piracy 104; regional cooperation 106; rights of visit 105 ‘Eyes in the Sky’ initiative 12, 30, 73–4 Fargo, Admiral Thomas B. 87, 139 Filipina Princess 85 Financial Action Task Force 171 fishing boats 70 Five Powers Defence Agreement 40, 88–9, 137, 193 flags of convenience 162–73; and anonymity of individuals 165–6; background 162–3; bilateral agreements 172; conclusion 173; flag state responsibilities 104; genuine links

219

requirement 168–9, 172; and global offshore economy 163–5; and international pressure 171; legal perspective 167–70; and piracy 166; security perspective 165–7, 170–2 forward operating sites 135–6 Fosler, G. 81 Free Aceh Movement (GAM) 65, 69, 70, 86 Freedom of Navigation programme 102 freedom of the sea 191 Gama, Vasco da 190 genuine links requirement 168–9, 172 Gerakan Aceh Merdeka (Free Aceh Movement) 65, 69, 70, 86 globalization 98, 194–5; and shipping industry 201–2 Great Coco Island 43 Grotius, Hugius 191 Guatemala 168–9 Gulf of Thailand disputes 42 Gunaratna, R. 83 Gwadar base 43 harbour and anchorage attacks 65–6 HARTS 28 Henry L. Marshall 169 hijacking 66–70, 183 hot pursuit 8, 74, 105 hub ports 26–7, 81 hydrographic surveying 192 Iceland 167 India: coordinated patrols with Indonesia 29; engagement policy 9; extraregional navy 47; and hydrographic surveys 192; as important economic power 21 Indian Ocean 190–1 Indonesia 5, 6; archipelagic sea lanes, proposals for partial system 121–2, 124–5; archipelagic sea lanes, Regulation No. 37 (2002) 125–6; claims in South China Sea 51–2; and coordinated naval/air measures 11–12, 27–8; coordinated patrols with other countries 29; disputes 42, 47; EastWest route 126–7; as important economic power 21; and kidnap for ransom 69; and Malacca Strait 16–17, 87–8; maritime air joint patrols 30, 73–4; national identity 36; natural gas reserves 44; naval battle order trends

220

Index

41, 45; partnership with China 136; piracy 65, 69, 70, 71, 72, 75, 87; postSoeharto era 15; poverty alleviation 28; and regional security response 88–9; Regulation No. 37 (2002) 125–6; relations with US 139; and RMSI 136; and security 63; terrorism 79–80; and trilateral naval patrols 29–30, 73 Information Sharing Centre 30–1 International Association of Maritime Aids to Navigation and Lighthouse Authorities 149 International Convention for the Safety of Life at Sea 146–7, 149, 151–3 International Maritime Bureau 25, 62 International Maritime Organization 14, 22, 73, 99, 149, 162, 195; archipalegic sealanes, procedures/functions 122–4, 129–30; ISPS Code 27, 73, 99, 106–7; LRIT 107; NAV Sub-Committee 121; and Philippines archipelago 127–9 international regimes 97–113; conclusions 112–13; ISPS Code 27, 73, 99, 106–7; maritime regimes 98–9; maritime zones 102–3; regional challenge 97–8; safety 107–8; security see under security; status of conventions/agreements 108–9; SUA Convention 75, 89, 99, 105, 107 International Ship and Port Facility Security Code 27, 73, 99, 106–7, 146–8, 155, 157–8 international terrorism: and piracy 5; security questions 10–11 International Transport Federation 162 Iraq 166 iron ore carriers 22–3, 202 irregular threats 138 Jakarta meeting 17–18 Japan 7, 110; activism 8–9; and China 8, 11; extra-regional navy 47; as important economic power 21; and Malacca Strait 16–17, 104, 110; and North Korean shipping 166, 192–3; and piracy 75; resources management 37; sea lanes of communication concerns 44 Java Sea 121 Jemaah Islamiyah 15, 27, 79, 82–3, 86, 185 Joint War Committee (Lloyd’s Market Association) 75

Kalayaan 51 Khallad 86 kidnap-for-ransom incidents 62, 68–9 Koh, Tommy 89 Kumpulan Militan Malaysia 79 LaFleur, Christopher 136 law of the sea see UN Conventions on the Law of the Sea Leifer, M. 97, 113 Liberation Tigers of Tamil Elam 79, 85 Liechtenstein 168–9 Ligitan 42 Limburg 80, 83, 127, 154, 181 liquified natural gas carriers 22; and terrorism 27, 81 Lloyd’s List 22 Lloyd’s Market Association (Joint War Committee) 75 Lombok Strait 22–3, 82 Long-range Identification and Tracking 107, 150–4, 156 low intensity maritime operations 89 low probability, high impact scenarios 15 McDougal, M. 172 Mahan, A.T. 191, 195 main operating bases 135 Majelis Mujahidin Indonesia 88 Makassar Strait 22 Malacca Strait 5–6, 7, 14–18, 82; coordinated naval/air patrols 11–12; Coordinated Patrols 29–30; council 44; as high risk zone 75, 82, 87; historical importance 189–90; hot pursuit patrols 74; and international shipping 14, 203–4; international/regional institutions/agreements 17–18; kidnapfor-ransome incidents 62, 68–9; literal and user states 16–17; maritime air joint patrols 30, 73–4; and maritime safety 15–18; outside contributions to costs 104; piracy 87; regional coodinating centre 18; and regional security initiative 87–8; robberies at sea 66; shipping densities 23 Fig.; size 23; and terrorist attacks 27, 81–2; third party assistance 8–9; traffic 23; trilateral cooperation 8; and US relations with states 139 Malaysia 5, 7; anti-piracy measures 28; claims in South China Sea 51, 53, 56, 58; and coordinated naval/air patrols 11–12; coordinated patrols with

Index Indonesia/Thailand 29; disputes 36, 42, 47; and kidnap for ransom 69; and major powers 9; and Malacca Strait 16–17, 87–8; naval battle order trends 40–1, 46; piracy 65, 70; and private armed escorts 74; and regional security response 89; relations with US 139; and RMSI 136; and security 64; terrorism 79, 82; and trilateral naval patrols 29–30, 73 Malaysian Maritime Enforcement Agency 45–6 Manila Declaration 55 marine environment 100–1 maritime air joint patrols 30, 73–4 maritime certificate fraud 67 maritime disputes see territorial and maritime disputes Maritime Environment Protection Committee 152 maritime industry see shipping industry maritime regimes 98–9 maritime safety 107–8 Maritime Security Committee 151–2 Maritime Silk Road 190 maritime terrorism see terrorism maritime zones 102–3 Ming Dynasty 189, 190 Mischief Reef incident 52–3, 57 Mitropoulos, E. 84, 87 Moro Islamic Liberation Front 70, 85–6 multilateralism 139–42 Myanmar 10, 43 Nagasaki Spirit 72 national identity 36 nationality of ships, trade in 164–5 NATO 9, 12 natural gas reserves 44 naval power: battle order trends 40–2; historical projection 190–1; modernization 39–40, 44–8 navigational rights/freedoms 103–4 North Borneo 47 North Korea 164, 166–7 Norway: and Iceland 167; shipping in region 22–3, 24 Table, 25 Table Nottebohn case 168 Ocean Blessing 72 offshore services 163–4 oil transportation 22, 43, 82, 139, 202 Organization for Economic Co-operation and Development 165, 170–1, 173

221

Pacific Business 171 Palawan 85 Paracel Islands 37, 49, 51, 57 Pasir Gudang 67 Pattani Trough and Gulf of Thailand dispute 42 Pattani United Liberation Organization 86 Pedra Branca 36 Penrider 69 Petro Ranger 67–8 Philippines: and archipelagic principle 51; archipelago 127–9; claims in South China Sea 51, 52–3, 54, 56, 57, 58, 59; disputes 35–6; naval battle order trends 41, 45; piracy 70; terrorism 27, 80, 82 Phillips Channel 82–3 piracy 5–6, 25–6, 62–75; background 62–3; causes 71; criminal syndicates 70; definition 5–6, 64, 107; and environmental disaster 72; equipment 70; and flags of convenience 166; harbour and anchorage attacks 65–6; high risk zones 75; hijacking 66–8; impact 72; incidence/causes 5–6, 65, 83; and international terrorism 5, 14–18, 26; and jurisdictional gray zones 88; kidnap-for-ransom incidents 62, 68–9; in Malacca/Singapore Straits 25–6; national countermeasures 27–8; private armed escorts 74; recommendations 74–5; response 72–4; robberies at sea 66; securitization 63–4; small-scale criminals 69; sophistication 83–4; targets 71; in territorial waters 64–5; and terrorism 62, 70, 74, 80, 83–4, 184–5; and UNCLOS 104 Port Kelang 17 Port Klang 23–4 Portugal 190–1 Powell, Colin 138 Prescott, J.R.V. 102 Proliferation Security Initiative 105, 172 Protocol and Fixed Platforms 107 Pulau Batu Putih 36 Pulau Tekong 83 Raja Sulaiman Movement 86 Raleigh, Sir Walter 190 Ramos, Fidel 52 regional cooperation 105–6 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia 30–1, 110, 111

222

Index

Regional Maritime Security Initiative 87–8, 110, 112, 134–42; background 134–5; conclusions 142; instruments 135–7; interoperability 136–7; and US bilateralism/multilateralism 139–42; and US grand strategy 137–8; and US relations with states in region 139; and US security concerns 138–9 Regional Maritime Surveillance and Safety Regime 111–12 regional sea lanes see sea lanes resources management 37, 42–4, 45 Roach, T.A. 102 robberies at sea 66 Rumsfeld, Donald 134 Russia and China, strategic partnership 7–8 Sabdullah, Nadzmi 85 safety 107–8 Safety of Life at Sea Convention 99 safety, and security 15–18 satellite-based tracking of ships 146–59; Automatic Identification System 28, 148–9; background 146; conclusion 158–9; enforcement 156–8; International Ship and Port Facility Security Code 27, 73, 99, 106–7, 146–8, 155, 157–8; Long-range Identification and Tracking 107, 150–4, 156; Ship Security Alert System 149–50 HMS Scott 192 Scovazzi, T. 101–2 sea: baselines 101–2; freedom of 191; as global asset 98 sea lanes 21–32; background 21, 31–2; bilateral security countermeasures 29; and globalization 98, 194–6; historical perspective 189–91; major 22–5; multilateral security countermeasures 29–31; national security countermeasures 27–8; piracy see piracy; and terrorism 26–7; US concerns 138–9 SEATO 35 security 3–12, 106–7, 109–12; and arms races 45–7; background 3–4; bilateral 7–9; common interests 109–10; European experience 9–10, 11; extraregional powers 110; and flags of convenience 165–7; flags of convenience 165–7, 170–2; ISPS Code 27, 73, 99, 106–7; Long-range Identification and Tracking 107,

150–4, 156; multilateral 9–12, 16; national 7; and national sovereignty 6; operational factors 111–12; political frameworks 111; regional coodination centre 18; regionalization 193–4; and safety 15–18; security threats 4–5; SUA Convention 75, 89, 99, 105, 107; and territorial disputes 43; and territorial and maritime disputes 44–7; threats 4–5, 203–4; UNCLOS see UN Convention on the Law of the Sea Selden, John 191 Sembayang Wharf 82–3 September 11 attacks 74, 78, 80, 82, 86, 154, 155–6, 170, 177–8; as large-scale single act 181–2 Serbia 169 Shambaugh, D. 53 shared resource extraction agreements 11 Ship Security Alert System 149–50 shipping industry 201–4; business cycles 202; current cycle 202–3; and globalization 201–2; and security 203–4 ships, trade in nationality of 164–5 Singapore: as container port 24; and coordinated naval/air patrols 11–12; coordinated patrols with Indonesia 29; dispute with Malaysia 36; fighter attack planes 40; and Malacca Strait 16–17, 203–4; maritime air joint patrols 30, 73–4; maritime security measures 28; naval battle order trends 40, 46; and piracy 66, 67, 68, 69, 72; relations with US 136, 139; and security 63, 139; and shipping industry 201–2; ships 22–3, 24 Figure, 25 Table; Strategic Framework Agreement with US 136; and terrorism 27, 79; and trilateral naval patrols 29–30, 73 Singapore Strait 15, 82–3 Sipadan 42, 85 Six Degrees Channel 29 Sosun 166 South China Sea 4–5, 49–59; background 49–50, 58–9; China-ASEAN negotiations 55–7, 57–8; Declaration on the Conduct of the Parties 53, 56, 57–8; as identity issue for China 36–7; and law of the sea 50–1; overlapping claims 51; resources management issues 37; shared resource extraction agreements 11; strategic conditions

Index 53–4; strategic/diplomatic status quo 49–50; use of force 52–3 South Korea, and Malacca Strait 17 sovereignty 6, 16, 36, 191–2 Spain 190 Spencer, Baldwin 163 Spratly Islands 10, 35–6, 37, 49–53, 55–6, 59, 192 Sri Lanka 85 straight baselines 102 Strait of Singapore 15 STRAITREP 22 Sunda Strait 23, 82 SuperFerry 14, 80, 85, 86, 154 Taiwan 51 Tamil Tigers 79, 85 Tan, Dr Tony 81–2 Tanjong Pelepas Port 17, 23–4, 64 Tanjung Priok 24 Tengku Ishak Daud 86 territorial and maritime disputes 34–47; arms build-up dynamics 37–40; and arms races 45–7; and deterrence 45–7; disputes in region 35–6, 42–4; escalation 44–5; issues 34–5; national identity 36; and naval battle order trends 40–2; and naval/airforce modernization 39–40, 44–8; and resources management 37, 42–4, 45; and security 44–7; sovereignty concerns 36 territorial sea baselines 101–2 terrorism 14–15, 18, 78–90, 154–6, 177–87; background 78, 177; concept 179–80; denunciation of 180–1; deterrence 186; expressive 182; focus 177–8; large-scale single act 181–2; maritime vulnerabilities 26–7, 78–83, 182–4; moral denunciation 186–7; national countermeasures 27–8; and naval/airforces modernization 39; and piracy 62, 70, 80, 83–4, 184–5; prevention measures enforcement 156–8; preventive measures 186; regional response 87; sophistication 83–4; and Southeast Asia 82–3; terrorist groups 84–7; and violence 178–9 Thailand 9, 46; and coordinated naval/air patrols 11–12, 73–4; coordinated patrols with Malaysia 29; disputes 36, 42; and fishing 63; and Malacca Strait 17; maritime air joint patrols 30; relations with US 139; and terrorism 86

223

Timor Sea Joint Petroleum Development Area 85 Tonga 166, 171 Tonnesson, S. 58 transit passage regimes 119–21 Treaty of Amity and Cooperation 55 tsunami 6, 25, 65, 86 tugboat attacks 68, 70, 83–4 UN Conference on Trade and Development 155 UN Convention on Conditions for Registration of Ships 168–9 UN Convention on the Law of the Sea 4, 17, 36, 50–1, 56, 89, 99–106, 191–3; and archipalegic sealanes 118–21, 129–31; and flags of Convenience 104, 167, 168, 170; hot pursuit 105; as international regime 98–9; intervention rights 167; limitations 100–1; and marine environment 100–1; navigational rights/freedoms 103–4; and Philippines archipelago 127–9; and piracy 104; regional cooperation 105–6; rights of visit 105; and sovereign rights 191–2; and SSAS 150; territorial sea baselines 101–2; and transit passage regimes 119–21 underwater operations 84 United States: archipalegic sea lane, Indonesian proposals/Regulation 122, 125–7; bilateral agreements 172; bilateral treaties 7, 110; bilateralism/multilateralism 139–42; and combined Asian economies 21; coordinated patrols with Indonesia 29; and dispute in South China Sea 54, 55; extra-regional navy 47; grand strategy in SE Asia 137–8; and Indonesia 7; and naval/air forces modernization 40; pressure 8–9; regional security concerns 138–9; relations with states in region 139; sea basing of military equipment 137–8; Strategic Framework Agreement with Singapore 136, see also Regional Maritime Security Initiative US Energy Information Administration 82 Valencia, M. 137 VHF band 148–9 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 167

224

Index

Vietnam: and archipelagic principle 51; claims in South China Sea 51, 52, 53, 54, 57, 58, 59; disputes 35–6, 42; naval battle order trends 41–2

Xiangyang Hong 193

Wawasan Nusantara 36 weapons of mass destruction 105, 135 Winner 166

Zheng, Admiral 189 Zhou En-Lai 51

Yangon port 43 Yellow Sea 192