Maritime Security in the South China Sea (Corbett Centre for Maritime Policy Studies Series)

Maritime Security in the South China Sea Regional Implications and International Cooperation

Edited by Shicun Wu and Keyuan Zou

Maritime Security in the South China Sea

Corbett Centre for Maritime Policy Studies Series Series editors: Professor Greg Kennedy, Dr Tim Benbow and Dr Jon Robb-Webb, Defence Studies Department, Joint Services Command and Staff College, UK The Corbett Centre for Maritime Policy Studies Series is the publishing platform of the Corbett Centre. Drawing on the expertise and wider networks of the Defence Studies Department of King’s College London, and based at the Joint Services Command and Staff College in the UK Defence Academy, the Corbett Centre is already a leading centre for academic expertise and education in maritime and naval studies. It enjoys close links with several other institutions, both academic and governmental, that have an interest in maritime matters, including the Developments, Concepts and Doctrine Centre (DCDC), the Naval Staff of the Ministry of Defence and the Naval Historical Branch. The centre and its publishing output aims to promote the understanding and analysis of maritime history and policy and to provide a forum for the interaction of academics, policy-makers and practitioners. Books published under the eagis of the Corbett Centre series reflect these aims and provide an opportunity to stimulate research and debate into a broad range of maritime related themes. The core subject matter for the series is maritime strategy and policy, conceived broadly to include theory, history and practice, military and civil, historical and contemporary, British and international aspects. As a result this series offers a unique opportunity to examine key issues such as maritime security, the future of naval power, and the commercial uses of the sea, from an exceptionally broad chronological, geographical and thematic range. Truly interdisciplinary in its approach, the series welcomes books from across the humanities, social sciences and professional worlds, providing an unrivalled opportunity for authors and readers to enhance the national and international visibility of maritime affairs, and provide a forum for policy debate and analysis.

Maritime Security in the South China Sea

Regional Implications and International Cooperation

Edited by Wu Shicun National Institute for the South China Sea Studies, China and Zou Keyuan University of Central Lancashire, UK

© Shicun Wu and Keyuan Zou 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Shicun Wu and Keyuan Zou have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Maritime security in the South China Sea : regional implications and international cooperation. -- (Corbett Centre for Maritime Policy Studies series) 1. Piracy--South China Sea--Prevention--International cooperation. 2. Maritime terrorism--South China Sea-Prevention--International cooperation. 3. International relations and terrorism--South China Sea. 4. South Asian cooperation. I. Series II. Wu, Shicun. III. Zou, Keyuan. 327’.0916472-dc22 Library of Congress Cataloging-in-Publication Data Wu, Shicun. Maritime security in the South China Sea : regional implications and international cooperation / by Shicun Wu and Keyuan Zou. p. cm. -- (Corbett Centre for Maritime Policy studies series) Includes index. ISBN 978-0-7546-7727-7 (hardback) -- ISBN 978-0-7546-9443-4 (ebook) 1. South China Sea--Navigation--Safety measures--International cooperation. 2. Maritime terrorism--South China Sea--Prevention--International cooperation. 3. National security--South China Sea--International cooperation. I. Zou, Keyuan. II. Title. VK113.S66W8 2010 359’.030916472--dc22 2009018255 ISBN: 978-0-7546-7727-7 (hbk) ISBN.V)

Contents List of Editors and Contributors  

vii

Part I: Introduction 1

Maritime Security in the South China Sea: Cooperation and Implications   WU Shicun and ZOU Keyuan

3

Part II: Securing Navigation in the South China Sea 2

Good Order at Sea in the South China Sea   Sam BATEMAN

3

Maritime Trade Development in Asia: A Need for Regional Maritime Security Cooperation in the South China Sea   HONG Nong

4

Maritime Security Cooperation in the South China Sea Region   Andrew S. ERICKSON

5

Myth and Reality: The Rise and Fall of Contemporary Maritime Piracy in the South China Sea   XU Ke

6

Commentary: A Regional Perspective on South China Sea Passage Security    WU Shicun

15

35 51

81

99

Part III: Regional Cooperation Combating Maritime Terrorism and Piracy 7 Regional Maritime Security Initiative (RMSI) and Enhancing Security in the Straits of Malacca: Littoral States’ and Regional Responses    Yann-huei SONG

109

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vi

8

Crackdown on Piracy in Southeast Asian Seas: Need a More Effective Legal Regime?    ZOU Keyuan

9

Southeast Asian SLOC Security   Joshua H. HO

157

10

The United States Response to Maritime Terrorism   Kristen G. JURAS

177

11

Commentary: Enhancing Sino–U.S. Maritime Cooperation for Regional Security  195 BAO Hongjun and ZHU Huayou

135

Part IV: Environmental Security and Maritime Rescue 12 The Development of Oil Spill Preparedness and Response in China  205 XU Shiming 13 Regional Cooperation for Marine Pollution Contingency Response in the South China Sea     ZHANG Xiangjun

217

14 International Submarine Rescue: A Constructive Role for China    237 Lyle J. Goldstein and William S. Murray 15

Commentary: Search and Rescue in South China Sea and Regional Cooperation  255 ZHANG Jie

Index  

263

List of Editors and Contributors Editors WU Shicun is currently President of the National Institute for the South China Sea Studies located in Hainan, China; visiting scholar to the School of Advanced International Studies (SAIS) of John Hopkins University in 1998, and to the Seminar on the Dynamics of U.S. Foreign Policy—Regional Security sponsored by US Government in 1999; and visiting senior research fellow at the Asia-Pacific Center for Security Studies in 2001. His research focuses on history and geography on the South China Sea, ocean boundary delimitation, international relations and regional security strategy. His main publications include Origin and Development of Spratly Disputes, Collection of Literatures on the South China Sea Issues, A Bibliography of Research on the South China Sea, The Issue of the South China Sea Islands in the Time of the Republic of China (1911–1949), Contest on the South China Sea and Zheng He’s Voyages to the Indian Ocean, Historical background on the 1943 Sino-British New Treaty, On Relativity of Cognition of the History, The Foundation of Sino-ASEAN Free Trade Zone and Across-Strait Commercial Relations, Imperative Task – the Exploitation of South China Sea Resources and A Study on the South China Sea Dispute. ZOU Keyuan is currently Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire in the United Kingdom. His specialties are international law and Chinese law. Before joining the Lancashire Law School in 2007, he taught and conducted researches at Dalhousie University (Canada), Peking University (China), University of Hannover (Germany) and the National University of Singapore. His main publications include Law of the Sea in East Asia (London/New York: Routledge, 2005), China’s Marine Legal System and the Law of the Sea (Leiden/Boston: Martinus Nijhoff, 2005), China’s Legal Reform: Towards the Rule of Law (Leiden/Boston: Martinus Nijhoff, 2006), and over 50 articles in international refereed journals. He is member of the editorial boards of the International Journal of Marine and Coastal Law, Ocean Development and International Law, Journal of International Wildlife Law and Policy, and Chinese Journal of International Law. He has been appointed as Academic Advisor to the China National Institute for the South China Sea Studies since 2000.

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Contributors (in alphabetical order) BAO Hongjun is currently a Ph.D. candidate in Nanjing University, China. His research areas include international politics and economy and China’s social development. He has published over ten articles in influential Chinese journals of related research areas. Sam BATEMAN is a senior fellow and Advisor to the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University in Singapore. He retired from full-time service in the Royal Australian Navy with the rank of commodore (one-star) in 1993 and became the Director of the Centre for Maritime Policy at the University of Wollongong in New South Wales where he remains a professorial research fellow. He has written extensively on defense and maritime issues in Australia, the Asia-Pacific and Indian Ocean, and was awarded his Ph.D. from the University of New South Wales in 2001. Andrew S. ERICKSON is an assistant professor of strategic studies within the Strategic Research Department of the US Naval War College. He earned his Ph.D. in 2006 at Princeton University where he wrote his dissertation on Chinese aerospace development. He has worked for Science Applications International Corporation (as a Chinese translator), as well as at the U.S. embassy in Beijing and the American consulate in Hong Kong. His publications include contributions to Comparative Strategy, to the Naval War College Review and the U.S. Naval War College’s Newport Papers. Lyle J. GOLDSTEIN is an Associate Professor in the Strategic Research Department of the U.S. Naval War College in Newport, RI. He teaches and writes about issues in East Asian security, focusing on energy, naval, nuclear issues. Recent research has been published in such journals as China Quarterly, Jane’s Intelligence Review, Joint Force Quarterly, Journal of Contemporary China, Journal of Strategic Studies, International Security, and Political Science Quarterly. His first book, which draws heavily on China’s nuclear history to examine proliferation crises in historical perspective, has been published by Stanford University Press in 2006. He speaks both Chinese and Russian and has a Ph.D. in political science from Princeton University and an M.A. from Johns Hopkins SAIS. Joshua H. HO is a Senior Fellow at the S. Rajaratnam School of International Studies, Singapore, and a Fellow of the Cambridge Commonwealth Society. He is a serving naval officer with 18 years of service and currently holds the rank of lieutenant colonel. He was trained as a Principal Warfare Officer and has served in various shipboard and staff appointments including the Command of a missile gun boat and stints in the Naval Operations, Plans, and Personnel Departments. He also holds concurrent appointments of Honorary Aide de Camp to the President, Secretary to the Naval Staff Meeting, and Secretary to the Policy and Strategy

List of Editors and Contributors

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Meeting, MINDEF. Joshua Ho’s research interests include military transformation and maritime security. He is a co-editor for a volume on Maritime Security in the Asia-Pacific and has written commentaries on military transformation and maritime security. He has published in well-known local and overseas journals like Defence Studies, Asian Survey, etc. He has also lectured at the Singapore Command and Staff Course as well as the Home Team Command and Staff Course. Kristen Gustafson JURAS is currently an Assistant Professor at the University of Montana School of Law located in Missoula, Montana, where she teaches courses in property and business law. Professor Juras is the coach of the Law School’s Jessup International Moot Court Team, and has taught classes on the law of the sea at Xiamen University’s Center for Oceans Policy and Law. Prior to teaching, Professor Juras practiced for more than twenty years in the areas of business transactions, international law, and tax planning, including the representation of clients in international tribunal proceedings. She has co-authored the Law of the Sea in a Nutshell (West Publishing 1984), and was preparing a second edition for publication in 2008. Professor Juras received her J.D. degree magna cum laude in 1982 from the University of Georgia School of Law, and her B.A. degree in French and German from the University of Montana. HONG Nong is an Assistant Research Fellow at the National Institute for the South China Sea Studies. She got her B.A on international journalism at Shanghai International Studies University (China) and her Master’s degree in public management from Potsdam University funded by InWEnt—Capacity Building International, Germany. She participated in the training program “Ocean Governance: Policy, Law and Management” jointly conducted by the International Ocean Institute (IOI) and Dalhousie University of Canada in 2005, funded by the OPEC Fund for International Development. Her academic interests include the law of the sea and international relations. William S. MURRAY is an associate research professor at the U.S. Naval War College. He joined the U.S. Navy in 1983 immediately after graduating cum laude from the State University of New York at Buffalo with a B.S. in Electrical Engineering. Professor Murray served as a junior officer and plank owner on the USS Pittsburgh (SSN-720), and as the navigator on the USS Houston (SSN-713). He conducted overseas deployments in those vessels in both the Atlantic and Pacific oceans. He is a 1990 recipient of the David Lloyd Award for excellence, and qualified to command nuclear-powered submarines. In 1994 he received a Master of Arts degree from the Naval War College. Prof. Murray has served as a fire control instructor at the U.S. Submarine School, and on the operations staff at the U.S. Strategic Command. He retired from the Navy with the rank of lieutenant commander in 2003. He has published articles in International Security, the U.S. Army War College Parameters, the journal Comparative Strategy, the United States Naval Institute’s Proceedings, Jane’s Intelligence Review, and Undersea Warfare.



Maritime Security in the South China Sea

Yann-huei SONG received his undergraduate degree from National Chengchi University, Taipei, Taiwan; a Master’s degree in Political Science from Indiana State University, Indiana; an LL.M. degree from the University of California School of Law (Boalt Hall), Berkeley, California; a doctoral degree in international relations from Kent State University, Kent, Ohio; and a JSD degree from the University of California School of Law. Following graduation from Kent State University, Dr. Song taught at Department of Political Science, Indiana State University, as assistant professor in 1988. He then returned home and taught as an associate professor at the Institute of Maritime Law, National Taiwan Ocean University, Keelung, Taiwan in 1990. Currently, Dr. Song is a research fellow and Deputy Director at the Institute of European and American Studies, Academia Sinica, Nankang, Taipei, and Distinguished Professor, the Graduate Institute of International Politics, National Chung Hsing University, Taichung, Taiwan. Dr. Song’s research interests are in the fields of international law of the sea, international fisheries law, international environmental law, national ocean policy study, naval arms control and maritime security. He has published articles in journals such as Political Geography Quarterly, Asian Survey, Marine Policy, and Ocean Development and International Law. XU Ke is a research fellow at the Centre for Maritime Studies, National University of Singapore (NUS). Xu Ke obtained his Ph.D. degree from the Southeast Asian Studies Programme, Faculty of Arts and Social Sciences, NUS. His Ph.D. dissertation reveals the logic behind the rise and fall of contemporary piracy in Southeast Asia. Xu Ke was a researcher in the Research School of Southeast Asian Studies in Xiamen University, China, where he received the Master’s degree in economics. Xu Ke has published several articles on maritime piracy in Southeast Asia. His research interests include maritime security in Southeast Asia, and maritime cooperation between the ASEAN countries and China. XU Shiming started his career in Hebei Maritime Safety Administration (MSA) since 1989 mainly in charge of Pollution Prevention from Ships, Dangerous Cargo Transportation Supervision and Port State Control as a senior engineer and Deputy Director. Between 2000 and 2001, he studied in the World Maritime University and obtained his Master’s degree in maritime administration. He has now assumed management responsibility for national pollution prevention from ships in the China MSA. ZHANG Jie is Deputy-Director of Hainan Maritime Safety Administration of People’s Republic of China. After graduated from Shandong University of Technology in 1982 Zhang Jie went to Wuhan University pursuing his Master’s degree studies in water transportation and engineering, specializing in ship’s power. After then he worked for the university as a lecturer up to 1989 when he moved to the Hainan Maritime Safety Administration, as a PSC officer and also carrying out investigation and settlement of waterborne traffic accidents. His most

List of Editors and Contributors

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important job is being a search and rescue coordinator for life saving at sea and he has organized and coordinated many search and rescue operations in the South China Sea. ZHANG Xiangjun is currently a lecturer in Fuzhou University Law School, PR China. Her specialty is in international law, particularly in the law of the sea. She obtained her Ph.D. degree in international law from Xiamen University School of Law and has published a number of papers on the law of the sea and international law. ZHU Huayou is Vice-President of the National Institute for the South China Sea Studies. He obtained his Ph.D. from Nanjing University, China. His previous positions include Research Fellow at the China Institute for Reform and Development (CIRD) and Division Director at the Hainan Provincial Foreign and Overseas Chinese Affairs Office. His current research focuses on economic reform and social development, South China Sea resources and exploitation, international relations, etc. His main publications include Theory and Practice of Chinese Market Economy, The Increasing Energy-Development of Chinese Nongovernmental Business, Burgeoning Market, The South China Sea and China’s Energy Sources’ Security, An Analysis of the Petroleum Diplomacy around the South China Sea, and Going Towards the Blue-Hainan’s Economic Development Strategy.

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Part I Introduction

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Chapter 1

Maritime Security in the South China Sea: Cooperation and Implications WU Shicun and ZOU Keyuan

Introduction Maritime security is a hot issue, attracting the attention of the whole world community. In the modern era, maritime security mainly concerns the safety of navigation, the cracking down on transnational crimes including sea piracy and maritime terrorism, and conflict prevention and resolution. In the context of nontraditional security, issues such as maritime environmental security and search and rescue at sea are included. Maritime security is of vital importance to the South China Sea, which is located in Southeast Asia and is a critical sea route for the maritime transport of East Asian countries including China. While the concept of maritime security can apply to any seas around the world, the South China Sea has its own uniqueness. The South China Sea is commonly described as one of three flashpoints (together with the Korean Peninsula and the Taiwan Straits) in East Asia for the potential conflict of national interests and threat to peace and security. Security issues around it therefore always remain a focus of international concern. As a semi-enclosed sea, the South China Sea hosts numerous islets and reefs as well as abundant living and non-living marine resources. It also provides key sea routes for maritime shipping and naval mobility. Because of its important strategic location and abundant resources, it becomes a target of contention between/among bordering countries. The picture of the Spratly Islands is even more complicated. Five countries and six parties (Brunei, China, Malaysia, the Philippines, Chinese Taipei, and Vietnam) made claims, in whole or in part, to this group of islets and display their physical presence (except Brunei) on their respectively occupied islets. In 2002, China and ten member states of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Conduct of Parties in the South China Sea which is designed to consolidate and develop the friendship and cooperation existing between China and ASEAN, to promote a peaceful, friendly and harmonious environment in the South China Sea, and to enhance the principles and objectives of the 1997 Joint Statement of the Meeting of the Heads of State/Government of the Member States of ASEAN and President of  Text is available at http://www.aseansec.org/13163.htm (accessed March 4, 2009).



Maritime Security in the South China Sea

the People’s Republic of China. However, unilateral actions of the claimants attempting to consolidate their territorial and maritime claims have never ceased since. The latest move was carried out by the Philippines, which passed a law of archipelagic baselines to embrace some disputed islets of the Spratly Islands into its maritime territory in February 2009 and it invited protests from other claimants including China. Against this background, people may wonder how to handle effectively the security issues and enhance security cooperation in the South China Sea. Considering two additional factors which affect the discourse of the security paradigm in the South China Sea—one is the intensified fight against terrorism at the global level after the 9/11 terrorist attack and the other is the rapid economic growth and emerging regional integration in East Asia—the task will be very challenging. This book attempts to address maritime security issues in various perspectives and approaches. Maritime security, though covering both traditional security issues such as military activities and non-traditional security issues such as piracy and maritime terrorism, this book places more emphasis on the latter. It is acknowledged that there are so many maritime security issues concerning the South China Sea. With limited space and resources, this book is only able to identify and address some of the most pressing issues of maritime security. The general legal framework which governs maritime security is centered on the 1982 United Nations Convention on the Law of the Sea (LOS Convention), which is commonly known as the constitution of oceans and has incorporated almost all previously existing conventional and customary rules and norms concerning the oceans. Pursuant to the provisions of the LOS Convention, a coastal state has the right to establish maritime zones under its jurisdiction: internal waters inside the baselines which are used to measure the extent of the territorial sea and other jurisdictional waters, the territorial sea of 12 nautical miles (nm), the exclusive economic zone (EEZ) of 200 nm, and the continental shelf of 200 nm (or up to 350 nm in some cases), outward from the baselines. Different maritime zones have different legal status. Internal waters and territorial sea are treated as part of the coastal state’s territory and that state enjoys full sovereignty there except innocent passage for foreign vessels in its territorial sea. The sovereignty of the coastal state over the territorial sea extends to the airspace above the territorial sea as well as to its bed and subsoil. For some jurisdictional purposes, such as prevention and punishment of infringement of its customs, fiscal, immigration, or sanitary laws and regulations, a coastal state has the right to establish the contiguous zone which may not extend 24 nm from   “Bicam OKs Baseline Bill”, available at http://newsinfo.inquirer.net/breakingnews/ nation/view/20090216-189576/Bicam-OKs-baseline-bill (accessed March 5, 2009).   21 ILM (1982) 1261. The Convention was open for signature on December 10, 1982 and came into effect on November 16, 1994. As of February 2009, there were 157 Contracting Parties to it, including one international organization.  Art. 2 (2) of the LOS Convention.

Maritime Security in the South China Sea: Cooperation and Implications



the baselines from which the breadth of the territorial sea is measured. However, it should be noted that in comparison with the territorial sea or the EEZ, the contiguous zone is not a complete maritime zone; rather it is subsidiary to the territorial sea for the coastal state to control certain matters of territorial nature while it is part of the EEZ in other sense. As to the EEZ and continental shelf, the coastal state, according to the LOS Convention, only enjoys sovereign rights and certain kinds of jurisdiction. The coastal state enjoys sovereign rights to the living and non-living resources in the EEZ and continental shelf, and exercises its jurisdiction over the matters relating to the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment. The coastal state has the exclusive right to authorize and regulate drilling on the continental shelf. The EEZ and the continental shelf are identical in terms of sovereign rights and jurisdiction of a coastal state. For that reason, the EEZ and the continental shelf are not part of the high seas, or part of the territorial sea. The EEZ is a maritime zone sui generis. Since the entry into force of the LOS Convention in 1994, the legal situation of maritime zones in the South China Sea has become more complicated. All of its adjacent countries become parties to the LOS Convention, and have enacted their corresponding domestic laws governing the maritime zones entitled under the LOS Convention. However, the South China Sea is a semi-enclosed sea with multiple coastal states, thus maritime boundary delimitation becomes another maritime security issue. Although China and Vietnam have resolved the maritime boundary issue in the Gulf of Tonkin, they have disputes over the maritime boundary delimitation beyond the Gulf of Tonkin and in the South China Sea. The maritime boundary delimitation, if involving territorial disputes over islands, will be more difficult to be undertaken. This is the exact case in the South China Sea regarding the Spratly Islands claimed by five countries/six parties. Securing Navigation in the South China Sea The role of international law in the resolution of security issues and promotion of security cooperation is indispensable. As China and ASEAN countries have reiterated on many occasions, they pledge to resolve the disputes over the South China Sea in a peaceful manner and in accordance with contemporary international law, including the 1982 LOS Convention. As Sam Bateman rightly comments, all regimes for good order at sea are based on the framework provided by the LOS Convention. In addition, he lists a series of legal instruments that applicable to  Art. 56 (1)(b) and Art.77 (1) of the LOS Convention.  Art. 81 of the LOS Convention.   For details, see Zou Keyuan, “Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin”, Ocean Development and International Law, 36 (2005), 13 –24.



Maritime Security in the South China Sea

the South China Sea and its security. It is well perceived that all the maritime security issues should be handled through appropriate cooperative mechanisms in accordance with international law. The most salient of the security issues in the South China Sea in the nontraditional security context is the safety of navigation. The number of vessels sailing through the South China Sea has increased to about 50,000 per annum, and the Malacca Straits, which is directly linked to the South China Sea, is overcrowded with vessels on its narrow waterways, thus making littoral states more difficult to ensure navigation safety. The first part of the book contributes to this crucial topic. The international maritime treaties including the 1974 Safety of Life at Sea (SOLAS) Convention; the 1979 Convention on Maritime Search and Rescue (SAR Convention); the International Convention for the Prevention of Pollution from Ship, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Navigation (SUA Convention); and the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, as mentioned in Bateman’s chapter in this book, are all applicable to the safeguard of the safety of navigation in the South China Sea. While the LOS Convention guarantees all states to exercise the freedom of navigation on the high seas, the safety of navigation largely depends on the implementation of relevant international treaties by coastal states. Hong Nong’s chapter links maritime security and the safety of navigation to the global economy with special reference to the countries adjacent to the South China Sea. As she comments, world trade is largely dependent on maritime transport and Asian countries are major players in world maritime transport, with sizeable shares in shipping industry. However, maritime transport is threatened by surging maritime violence in Southeast Asia as well as natural disasters and manmade hazards. Thus regional maritime security cooperation is called for—the theme of Chapter 4, contributed by Erickson, who perceives such negative forces as piracy, smuggling, maritime accidents, and even potentially maritime terrorism to be challenges which directly impinge upon the national interests in Southeast Asia. The author outlines a broad array of cooperative initiatives and places particular emphasis on the interests of the U.S. and China in the South China Sea region and their respective roles in contributing to both regional security as well as their own strategic coexistence, which, Erickson argues, is a prerequisite for the regional stability that all states should seek. There are two more chapters in Part II of this book. One is addressing the piracy issue in the South China Sea by looking into the factors contributing to the rise and fall of maritime piracy in the Straits of Malacca and the South China Sea from 1991 to 2007. The other is concerning the passage security in the South China Sea. As Xu Ke observes in his chapter, “the myth of piracy and terrorism nexus has made anti-piracy cooperation in the Straits of Malacca and the South China   See Chapter 2 of this book.

Maritime Security in the South China Sea: Cooperation and Implications



Sea integrated into the global anti-terrorism framework. The myth has also driven the littoral states to shift their paradigms on anti-piracy policies, thus changed the reality of this region tremendously.” Wu’s chapter examines a different but related issue in the context of maritime security, i.e., the passage security for all ships through the South China Sea. Free navigation in that sea area is guaranteed by the LOS Convention, and the coastal states have the responsibility to maintain the safety of navigation. However, while there is freedom of navigation on the high seas and in the EEZs, the passage through the territorial sea of a coastal state is qualified by the conditions set forth by the LOS Convention in the stipulations on innocent passage, which is different from free passage.10 According to Wu, China shares the responsibility with other countries in the region for safeguarding passage security in the South China Sea and regional cooperation is necessary. Regional Cooperation Combating Maritime Terrorism and Piracy Part III of this book concerns the fight against piracy and maritime terrorism, which is a key issue in the whole picture of maritime security. Moreover, maritime security in the South China Sea is indispensably linked to maritime security in the Straits of Malacca and Singapore, as the latter is a chokepoint to the passage to the South China Sea. Song’s lengthy chapter depicts recent developments relating to the responses of the littoral states of the Straits of Malacca to the Regional Maritime Security Initiative (RMSI) proposed by the United States in 2004, attempting to apply it to the Straits in the name of maintaining the maritime order there by the presence of American military personnel. This was obviously opposed by the two key littoral states—Indonesia and Malaysia. Though the initiative was finally aborted without the support of the key littoral states, it has political and legal implications for future developments concerning the maintenance of maritime security. In considering the vitality of the Proliferation Security Initiative (PSI) and the recent multinational naval presence in Somali waters to crack down on piracy under the authorization of the United Nations Security Council, its implications are even greater. Zou’s chapter is more focused on the suppression of maritime piracy. By examining the legal definition of piracy provided for in the LOS Convention and state practices in the crackdown of piracy, he calls for a more effective mechanism both at the regional and global levels for the prevention and suppression of piracy and maritime terrorism. Closely related to this is the security of the sea lanes in the South China Sea and the Malacca Straits. Ho’s chapter specifically addressing this issue and give us a comprehensive picture of how and to what extent the littoral states as well as user states have made efforts individually, jointly, regionally or through international mechanisms in maintaining the sea lane security. He concludes by   See Chapter 5 of this book. 10  For details on these provisions, see Articles 17-26 of the LOS Convention.



Maritime Security in the South China Sea

citing the remarks made by Singapore’s Defense Minister Teo Chee Hean to the effect that littoral states have the primary role in addressing maritime security issues, other stakeholders have important roles to play, and consultation should be pursued and the rule of international law observed in the implementation of any new initiatives.11 Juras’s chapter offers us an American perspective regarding the maritime security issue in the South China Sea. She discusses various national responses of the United States to maritime security including legislative response represented by the Maritime Transportation Security Act of 2002, agency response represented by the C-TPAT and the Container Security Initiative, and the executive response represented by the PSI. By additionally examining the 2005 National Strategy for Maritime Security and the Reducing Crime and Terrorism at America’s Seaports Act of 2005, she concludes that “the United States cannot act in isolation to protect its maritime transportation system. Protection can only be achieved through the collective efforts of the international community”.12 The commentary chapter of this part is contributed by Bao and Zhu, who call for the enhancement of Sino-American cooperation for regional maritime security in the South China Sea. Environmental Security and Maritime Rescue The final part of this book touches upon one important aspect of maritime security relating to the environment and human life. With rapid economic growth, China is eager to get sufficient energy including oil and gas to support its dynamic national development. According to a recent report, China’s demand for oil reached a new record of 5.62 million barrels per day (mb/d) in August 2003.13 China replaced Japan to become a second largest oil-consuming country in the world, just after the United States. This developmental trend inevitably triggers China’s enthusiasm to quicken its pace of exporting oil from overseas and much of such oil import has to go through the Malacca Straits and the South China Sea. Maritime transport could pose a threat to the marine environment by vessel-source pollution. China enacted the Marine Environmental Protection Law in 1982 and amended it in 1999. 14 The law is designed to protect the marine environment and resources, prevent pollution damage, maintain ecological balance, protect people’s health and promote marine understandings. It covers five sources of pollution in general: 11  See Chapter 9 of this book. 12  See Chapter 10 of this book. 13  See International Energy Agency, Oil Market Report: A Monthly Oil Market and Stocks Assessment, 10 October 2003, p.12. 14  English version may be found in Office of Laws and Regulations, Department of Ocean Management and Monitoring, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), 69-93.

Maritime Security in the South China Sea: Cooperation and Implications



pollution by coastal construction projects, pollution from offshore oil exploration and exploitation, pollution by land-based pollutants, pollution by vessels, and pollution by dumping of wastes. For the prevention of marine pollution from vessel source, China passed the Regulations Concerning the Prevention of Pollution in Sea Areas by Vessels of 1983.15 They are applicable to Chinese and foreign vessels within the sea areas and sea ports under China’s jurisdiction, as well as to shipowners and other individuals. The Chinese authority in charge is the China Maritime Bureau. Against the above background, the first two chapters of Part IV address the issues concerning oil spill preparedness and contingency response from the Chinese perspective and relating to China’s practice. Xu Shiming presents some major marine oil pollution incidents in China and a series of measures taken by China to deal with marine oil pollution. As for the South China Sea, the author observes that China will continue to promote regional cooperation by sticking to the action plans in order to get prepared against serious pollution incident involving ships. Different from the perspective of a practitioner such as Xu, the chapter by Zhang Xiangjun is more like a desktop exercise, but more focused on contingency plans for the South China Sea. As she observes, the South China Sea has been exposed to serious environmental threats including those caused by oil spill accidents. In the legal arrangements for regional seas sponsored by the United Nations Environment Program, cooperation in combating pollution in case of emergency has become an important component. By referring to the existing treaties in other regional seas, the author suggests the establishment of a similar legal regime for the South China Sea so as to protect the marine environment from oil spill pollution. Of the remaining two chapters, one is from an American perspective and the other from a Chinese one, are concerning search and rescue, also an important element in the paradigm of maritime security. Goldsten and Murray’s joint chapter touches a new area of submarine rescue, which is important as reports about submarine collisions and submarine incidents appear in the media from time to time. Their paper explores how increased cooperation in submarine rescue is one potential avenue for expanded maritime cooperation between the established and emerging naval powers in the Asia-Pacific region and suggests the formulation of some kind of mechanism to avoid potential conflict and facilitate trust and transparency. The chapter contributed by Zhang Jie describes the efforts made by the China Maritime Search and Rescue Center in the search and rescue life at sea, and introduces how the search and rescue system has been constructed and developed in recent years in China. The Way Forward In recent years, non-traditional security issues to a large extent affect the maintenance of maritime security in the South China Sea. If such issues cannot be resolved in a 15  See Office of Laws and Regulations, ibid., 115-147.

10

Maritime Security in the South China Sea

timely manner, they will cause serious damages to regional economies, and even disrupt the global trade order. Meanwhile, it is acknowledged that traditional political and military factors continue to exert a strong influence over the security in the South China Sea, as reflected in the development of disputes over the Spratly Islands and the increasing intervention of external powers in the region. Despite the adoption of the 2002 Declaration on the Conduct of Parties in the South China Sea between ASEAN nations and China, attempts to consolidate territorial claims by individual claimants have been intensified, as seen in recent moves by Malaysia, whose prime minister visited a disputed islet in the Spratly Islands in March 2009, and the Philippines, which adopted a new law (Republic Act 9522) to embrace the disputed Kalayaan Group, part of the Spratly Islands, a month earlier. The row between China and the United States in March 2009 regarding an American naval vessel conducting intelligence-gathering and military surveying in the EEZ of China in the South China Sea indicates that big maritime powers retain their strong interest in the South China Sea. Therefore, traditional security factors have been playing a leading role in shaping the political landscape of the region. However, the importance of nontraditional security factors is significantly rising, particularly with the resurgence of sea piracy in the South China Sea and the Malacca Straits. A closer examination of the security situation in the South China Sea reveals that cooperation and conflict coexist there. The key point is how to convince the countries concerned to realize the necessity of engaging each other to cooperate and avoid potential conflicts so as to pave the way for lasting peace and security in the region. As the chapters of this book demonstrate, there is a solid basis to reach the goal of cooperation in the resolution of the security issues concerning the South China Sea. Besides a series of international treaties which bind the signatory states, China and ASEAN countries have also reached a number of agreements relating to maritime security. By signing the Joint Declaration of ASEAN and China on Cooperation in the Field of Non-traditional Security Issues (November 2002) and the Memorandum of Understanding between ASEAN and China on Cooperation in the Field of Non-traditional Security Issues (January 2004),16 China and ASEAN have established their partnership in safeguarding maritime security in the South China Sea. In September 2004, experts in combating terrorism from China and ASEAN members met in China to work out concrete steps to be jointly taken against terrorism. Specifically applicable to the South China Sea is the 2002 Declaration on the Conduct of Parties in the South China Sea which requests states concerned to cooperate in the fields of non-traditional security including the fight against sea piracy and maritime terrorism. On the other hand, it is to be noted that the 2002 Declaration is a political document without legal binding force, thus affecting its effectiveness in practice. Moreover, there is a lack of an effective notification and information sharing mechanism. A multilateral maritime security cooperation framework has not yet 16 Texts of these documents are available at http://www.aseansec.org/4979.htm (accessed 11 March 2009).

Maritime Security in the South China Sea: Cooperation and Implications

11

been established in the South China Sea region. In this regard, the 24-hour hotline between the naval forces of Singapore, Malaysia and Indonesia for joint policing of the Malacca Straits may serve as a valuable example. Furthermore, the scope and modes of cooperation in maritime security have not been clearly defined. For instance, questions arise as to whether cooperative operations should extend to disputed maritime areas and how law enforcement should be conducted in such sea areas. It is also necessary to explore whether and how external powers should be invited to the multilateral maritime security cooperation framework and what respective roles the governments, business sectors and non-state actors should play in the maintenance of maritime security in the South China Sea. A crucial aspect of maritime security cooperation in the South China Sea is to realize regional cooperation in the disputed maritime areas. Due to the overlapping claims of sovereignty over South China Sea islands and the ensuing disputes over maritime jurisdiction, countries concerned will take a cautious approach in developing security cooperation in order to avoid negative consequences. If security cooperation is likely to let one of the parties involved gradually control the disputed maritime areas, the other parties will naturally resist such cooperation. Moreover, ordinary people of the countries concerned have the deeply rooted conviction that the disputed sea areas are the territory of their own countries. In order not to flare up nationalist sentiments, the governments have to be cautious in negotiations on security cooperation. There are some suggestions which may be helpful to facilitate the establishment of a multilateral maritime security cooperation framework in future. First, to realize security cooperation, the governments concerned should demonstrate their political wisdom by moving a step further from the commitment to “setting aside disputes for joint development of resources” to “setting aside disputes for joint maintenance of maritime security.” Besides, to remove worries about the impact on sovereignty claims, the governments concerned should pledge not to seek unilateral benefits from security cooperation. Such cooperation should produce a win–win result. In addition, littoral countries may strengthen cooperation through international organizations operating in the region to promote mutual understanding and trust. Secondly, information sharing is particularly important for security cooperation in the disputed sea areas. This can be achieved by establishing a shared database on maritime security in the South China Sea and an information exchange system. The experiences gathered from the Information Sharing Center established under the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)17 in November 2006 can be borrowed. The potential of existing channels of exchanges between different countries, including those between China and ASEAN, should be further exploited. As the cooperation between littoral countries in the South China Sea region covers various aspects 17 Text is available at http://www.recaap.org/about/pdf/ReCAAP%20Agreement.pdf (accessed 11 March 2009).

12

Maritime Security in the South China Sea

of social life, a more effective use of the existing cooperation mechanisms will no doubt contribute to cooperation in safeguarding maritime security. However, these cooperation mechanisms are only confined to inter-governmental exchanges. Therefore, it is necessary to establish mechanisms for promoting exchanges between industries, think tanks, and academics. The role of non-governmental organizations should be emphasized in particular. Thirdly, it is necessary to promote economic and social developments to tackle threats to maritime security at the root. Piracy, terrorism and other crossborder crimes are serious crimes. Although poverty does not necessarily lead to crimes, the rampant piracy and terrorist activities can be attributed at least partly to unbalanced economic development and social turbulence in Southeast Asia. Therefore, countries in the region should work together to deepen economic and social development, improve living standards, promote social justice, protect the environment and realize sustainable development. Fourthly, modern advanced technology can facilitate the safeguard of maritime security. As piratical attacks and terrorist activities are generally unpredictable, it is necessary to use modern technology as a counter-measure. In this regard, external maritime powers, particularly those with advanced technology, can provide support. For instance, the United Kingdom Hydrographical Office (UKHO) has published the South China Sea electronic nautical charts (ENC) which can be used to improve navigation routing and safety in the South China Sea. In addition, a more advanced anti-hijack alarm and ship-tracking system can help to track down to a hijacked ship. With regard to the complex and changing traditional and non-traditional security issues, it is expected that the countries concerned can place security cooperation in the South China Sea at the top of their agenda so as to build up consensus for the establishment of a multilateral maritime security cooperation framework in the foreseeable future. As a final note, this book is a result of a joint project between the China National Institute for the South China Sea Studies and the Lancashire Law School of the University of Central Lancashire. The National Institute for the South China Sea Studies is the key think tank in China at the national level specializing in South China Sea studies. Regarding maritime security, the institute has held several international conferences, and some of the chapters in this book are selected from the papers presented to these conferences. The Lancashire Law School has recently created a research program on law and security and maritime security is a main focus in that program. We do hope that this edited book can contribute itself to the continuing studies on maritime security as well as on the South China Sea.

Part II Securing Navigation in the South China Sea

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Chapter 2

Good Order at Sea in the South China Sea Sam BATEMAN

The Geopolitics of the South China Sea The South China Sea can be rated geopolitically, economically and strategically, as one of the most important seas in the world. It attracts considerable attention in contemporary thinking in international relations and strategic studies, and continues to be seen as a “hot spot” that could be a source of tension or even conflict in East Asia. The need for good order at sea in the South China Sea is a strong common interest of the countries bordering the sea, the United States and the emerging maritime powers of Asia—China, India, Japan and South Korea. The South China Sea is identified in The Times Atlas and Encyclopedia of the Sea as the largest sea in the world if the size of a sea is assessed as its area within defined physical boundaries. It covers an area of 3.5 million square kilometers, and has rich biodiversity and abundant natural resources. One hundred and twenty-five major rivers drain into the South China Sea and over 30 per cent of the world’s coral reefs border it, especially around the archipelagos of Indonesia and the Philippines. Substantial oil and gas reserves have been found in littoral areas of the sea off Borneo and Vietnam but so far there has been no exploration in the disputed island groups, and estimates vary as to their potential. The South China Sea is the geo-strategic focus of Southeast Asia. It is crisscrossed by major shipping routes and divides Southeast Asia into a maritime sphere (i.e. the Philippines, Indonesia, Brunei, Malaysia and Singapore) and a continental one (i.e. Thailand, Cambodia, Laos, Myanmar and Vietnam). The countries bordering the South China Sea display a variety of political systems from the communism and socialism of China and Vietnam to the democracies of Malaysia, Singapore, Indonesia, and the Philippines to the absolute monarchy of  Alastair Couper, ed., The Times Atlas and Encyclopedia of the Sea, London: Guild Publishing, 1989, p. 26.   Lu Ning, Flashpoint Spratlys! Singapore: Dolphin Books, 1995, p.1   David Rosenberg, “Fisheries Management in the South China Sea” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, p.62.  U.S. Government, “South China Sea——Oil and Natural Gas”, Energy Information Administration, Official Energy Statistics from the U.S. Government, http://www.eia.doe. gov/emeu/cabs/South_China_Sea/OilNaturalGas.html (accessed June 23, 2009)

16

Maritime Security in the South China Sea

Brunei Darussalam. The shipping routes through the South China Sea have great strategic and economic significance to major non-littoral countries, particularly Japan and the United States, as well as to the bordering countries themselves. Most of the countries bordering the South China Sea, but notably Indonesia with its concept of wawasan nusantara (the “archipelagic outlook”), have a strong cultural affinity with the sea. The South China Sea divides Malaysia into its two constituent parts—East and West Malaysia. Certain areas in and around the sea, but particularly in its southwestern part around the Riau Archipelago and the Anambas and Natuna islands, and off Borneo and around the Sulu Sea, have a long history of piracy and sea raiding. This remains the situation today as these areas continue to figure prominently as “high risk” areas for piracy and armed robbery attacks. The South China Sea is classified as a semi-enclosed sea that comes within the regime for enclosed and semi-enclosed seas in Part IX of the 1982 UN Convention on the Law of the Sea (UNCLOS). UNCLOS Article 123 in that part states that: States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in the furtherance of the provisions of this article.

While resource management, the protection of the marine environment and marine scientific research are mentioned specifically as areas for cooperation, the opening sentence of UNCLOS Article 123 sets a more general obligation to cooperate. The Council for Security Cooperation in the Asia Pacific (CSCAP)  in its Memorandum No. 13 suggests that this responsibility might also be interpreted broadly as including security and safety, including the maintenance of law and   Stefan Eklof, Pirates in Paradise——A Modern History of Southeast Asia’s Maritime Marauders, Copenhagen: Nordic Institute of Asian Studies Press, 2006.  CSCAP was established in 1992–3 as the premier second-track organization in the Asia Pacific that addresses regional security, including prospective measures for confidence building and preventive diplomacy. For a critical review of the first eight years of CSCAP’s achievements, see Desmond Ball, “The Council for Security Cooperation in the Asia Pacific——Its Record and Its Prospects”, Canberra Papers on Strategy and Defence No. 139, Canberra: Strategic and Defence Studies Centre, Australian National University, October 2000.

Good Order at Sea in the South China Sea

17

order at sea. It suggests that any failure to achieve an effective level of cooperation is “due largely to the existence of sovereignty disputes and overlapping boundary claims that inhibit the process of cooperation and a perception that cooperation involves some giving up of sovereignty.” As I argue in this chapter, this is certainly the case in the South China Sea. There are seven countries bordering the South China Sea. Five of these, as well as Taiwan, lay claim to some or all of the offshore islands and reefs lying in midstream between the mainland of East Asia and the Indonesian and Philippine archipelagos. All these countries are parties to UNCLOS and thus have a clear obligation to cooperate with regard to the management of the South China Sea, including the maintenance of good order at sea. Unfortunately and despite numerous efforts to do so, particularly in recent years, it has proven extremely difficult to establish effective management regimes for the sea. At present good order at sea is lacking in the region. As Rosenberg and Chung have suggested recently, “the number and intensity of regional maritime security problems in the South China Sea are increasing.”10 Good Order at Sea Through its several working groups and study groups, CSCAP has undertaken extensive work over the years to promote maritime security cooperation in the Asia Pacific, including the notion of good order at sea. CSCAP Memorandum No. 5 specifically discussed agreed best practices and the scope for cooperation to maintain law and order at sea in the region. It provides the following description of what is meant by good order at sea and the prerequisites for its achievement: Good order at sea permits the free flow of seaborne trade and ensures that nations can pursue their maritime interests and develop their marine resources in an   Council for Security Cooperation in the Asia Pacific, “Guidelines for Maritime Cooperation in Enclosed and Semi-Enclosed Seas and Similar Sea Areas of the Asia Pacific”, CSCAP Memorandum No. 13, July 2008, p. 2 (CSCAP memos are available on the website at: http://www.cscap.org/index.php?page=cscap-memoranda) (accessed June 23, 2009)  Ibid., p. 1.  The most persistent efforts in this regard have been through the Workshops on Managing Potential Conflicts in the South China Sea hosted by Indonesia. For a description of the activities and achievements of this process, see Hasjim Djalal, “The South China Sea: The Long Road Towards Peace and Cooperation” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, pp. 175–88. 10  David Rosenberg and Christopher Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities”, Ocean Development and International Law, 39:1 (2008), p. 61.

Maritime Security in the South China Sea

18

ecologically sustainable and peaceful manner in accordance with international law. It provides for the preservation and protection of the marine environment, including the conservation of species, and ensures that all nations and peoples, including future generations, benefit equitably from the marine environment and the exploitation of its resources. A breakdown in good order at sea is evident with unregulated pollution of the marine environment, unregulated or illegal fishing (including the use of explosives or chemicals to catch fish), or if other illegal activity occurs at sea. Illegal activity might include piracy; maritime terrorism; maritime theft and fraud; human smuggling; and the shipment of drugs, arms, protected animal and plant species, certain toxic materials and nuclear wastes, as well as the dumping of environmentally harmful and hazardous substances banned under international agreements.11

This description suggests several requirements for good order at sea that provide a useful framework for the discussion in this chapter of the extent to which good order at sea exists at present in the South China Sea. These requirements are: • • • • • •

adherence to agreed principles of international law; processes to provide for the safe and secure flow of seaborne trade; the absence of illegal activity at sea, such as piracy, smuggling, and illegal fishing; agreed limits to maritime jurisdiction through established systems of maritime boundaries; arrangements for the ecological sustainable and peaceful development of marine resources; and arrangements for the preservation and protection of the marine environment.

International Law Good order at sea requires that nations are able to pursue their legitimate maritime interests in accordance with agreed principles of international law. Relevant international law is derived from UNCLOS, other international instruments, soft law and customary international law. While UNCLOS provides the bulk of the conventional law of the sea, there is much relevant law that is not contained in international conventions and is guided by the practice or custom of nations. Recent decades have also seen a proliferation of both binding international conventions and “soft law” instruments relevant to good order at sea. 11  Council for Security Cooperation in the Asia Pacific, “Cooperation for Law and Order at Sea”, CSCAP Memorandum No. 5 (February 2001), pp. 2–3.

Good Order at Sea in the South China Sea

19

All regimes for good order at sea are based on the framework provided by UNCLOS. However, UNCLOS has some significant limitations in this regard, including its numerous “built-in” ambiguities, which allow states scope to adopt flexible interpretations of their rights and duties under the convention.12 UNCLOS prescribes the regime of maritime zones that establishes the nature of state sovereignty and sovereign rights over ocean space and resources, and as has been noted, sets out obligations for countries bordering an enclosed and semi-enclosed sea. However, it does not assist with resolution of the sovereignty disputes over offshore features in the South China Sea; it is only after sovereignty has been agreed that UNCLOS will come into play by guiding claims to maritime zones and the establishment of maritime jurisdiction.13 International Instruments Using the framework provided by UNCLOS, other important international conventions provide principles for good order at sea. These include the: • • • • • •

1974 Safety of Life at Sea (SOLAS) Convention;14 1979 Convention on Maritime Search and Rescue (SAR Convention);15 International Convention for the Prevention of Pollution from Ship, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); Convention for the Suppression of Unlawful Acts against the Safety of Navigation 1988 (SUA Convention); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988; and Convention for the Suppression of Unlawful Acts against the Safety of Navigation 2005.16

12  Sam Bateman, “UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime”, Korean Journal of Defense Analysis, 19:3 (Fall 2007), pp. 27–56. 13 Robert C. Beckman, “Legal Regimes for Cooperation in the South China Sea” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, pp. 222–3. 14  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. 15 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. 16 Articles 1–16 of the 1988 SUA Convention, as revised by the 2005 SUA Protocol, together with Articles 17–24 of the 2005 Protocol and its annex, are to constitute and be called the Convention for the Suppression of Unlawful Acts against the Safety of Navigation

20

Maritime Security in the South China Sea

SOLAS Convention  The SOLAS Convention is the most important of international treaties dealing with the safety and security of merchant ships. The main objective of the Convention is to specify minimum standards for the construction, equipment, and operation of ships, compatible with their safety and security. Additional protocols and amendments relate to tanker safety and pollution prevention; surveys and certification; passenger ships (especially ferries and ro-ro vessels); high speed craft; and the Global Maritime Distress and Safety System (GMDSS). While the focus of the Convention was originally ship safety, it now covers security requirements as well through its incorporation of the International Ship and Port Facility Security (ISPS) Code, which entered into force on July 1, 2004.17 However, this Code applies only to the so-called “SOLAS ships” i.e. the ships over 500 gross tonnage that are employed on international voyages. Unless extended by national legislation,18 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 around the South China Sea where there are large fishing fleets, many smaller trading vessels, and big domestic commercial fleets, particularly in Indonesia, Malaysia and the Philippines. Non-SOLAS ships are common in and around the South China Sea. MARPOL Convention  MARPOL 73/78 is a combination of two treaties adopted in 1973 and 1978 respectively. It provides the details of what flag states need to do to fulfill their obligations under UNCLOS, particularly Articles 211 and 217, 2005. Robert C. Beckman, “The 1988 SUA Convention and 2005 Protocol: Tools to Combat Piracy, Armed Robbery, and Maritime Terrorism”, in Rupert Herbert-Burns, Sam Bateman and Peter Lehr, eds, Lloyd’s MIU Handbook of Maritime Security, Boca Raton, F.L.: Auerbach Publications, 2008, p. 192. 17 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. For a critical review of the ISPS Code and other contemporary maritime security requirements, see Steven M. Jones “Implications and Effects of Maritime Security on the Operation and Management of Merchant Vessels” in Rupert Herbert-Burns, Sam Bateman and Peter Lehr, eds, Lloyd’s MIU Handbook of Maritime Security, Boca Raton, F.L.: Auerbach Publications, 2008, pp. 87–116. 18 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 intrastate voyages.

Good Order at Sea in the South China Sea

21

with the objective of preventing the pollution of the marine environment by ships through the discharge of harmful substances or effluents. It is split into six detailed annexes covering topics such as oil, noxious liquid substances in bulk (chemicals), harmful substances carried in packaged form or in containers, sewage, garbage, and air pollution from ships. Annexes I (oil discharges) and II (carriage of bulk chemicals) are mandatory for parties to the Convention while the remaining annexes are optional. MARPOL emphasizes enforcement and requires that violations of the requirements of the Convention be prohibited and sanctions established under the law of the flag state of the ship concerned regardless of where the violation occurs. Parties are also enjoined to cooperate in the detection of violations and in enforcement. It is a complex instrument but generally it has been well accepted, contributing significantly to the prevention of marine pollution by ships.19 However, the prosecution by a flag state of offenses under MARPOL committed at sea requires coastal states to have an effective monitoring and surveillance regime to be in place that provides for the detection of pollution incidents and the collection of evidence to facilitate prosecutions by the flag state. In an area such as the South China Sea, this requires cooperation between coastal states and this is currently lacking. SAR Convention  The 1979 SAR Convention encourages cooperation between States Parties and search and rescue (SAR) organizations around the world with regard to search and rescue operations 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 International Maritime Organization (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 neighboring 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, and major bordering States to the South China Sea are not party to it. A possible explanation of this low level of support 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.

19 Edgar Gold, Gard Handbook on Protection of the Marine Environment, 3rd ed., Arendal: Gard AS, 2006, pp. 238–9.

22

Maritime Security in the South China Sea

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 SUA Convention extends coastal state enforcement jurisdiction against acts of violence at sea beyond territorial limits, and in particular circumstances, allows exercise of such jurisdiction in an adjacent state’s territorial sea. The Protocol on Fixed Platforms is important for good order in the South China Sea because of the number of offshore oil and gas platforms in the area. However, some Southeast Asian countries have failed to ratify the SUA Convention and its Protocol (see Table 2.1), and this 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 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 programs.20 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. Status of Conventions Table 2.1 shows the current state of ratification by South China Sea littoral countries of the key conventions related to good order at sea. All the littoral countries are parties to UNCLOS but, as can be seen, there are still major gaps in the level of ratification of the other important conventions. Only China, Singapore and Vietnam are parties to the SAR Convention. The 1988 SUA Convention and its Protocol have not been ratified by Indonesia and Malaysia, and as Singapore does not have any fixed offshore oil or gas platforms, it has not ratified the 1988 Protocol. No littoral country has yet ratified SUA 2005. Only the SOLAS and MARPOL Conventions have been ratified by all regional countries although some of their key protocols and annexes have not been. To ensure good order at sea in the South China Sea, there is a need for greater attention to these conventions in the littoral countries, 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. In the field of maritime security and safety, the articulation and enactment of sound and effective legislation is

20 U.S. Department of State, “Protocols to the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)”, Fact Sheet, October 21, 2005.

Good Order at Sea in the South China Sea

Table 2.1

23

Status of Conventions and Agreements—South China Sea Countries SOLAS

MARPOL

Brunei

X

X(a)

China

X

X

SAR

SUA 88 X

SUA 88 Protocol X

X

X

X

X

X

Indonesia

X

X(a)

Malaysia

X(a)

X(a)

Philippines

X(a)

X

Singapore

X

X

X

X

Vietnam

X

X(a)

X

X

SUA 2005

X

Note: X signifies that the Convention has been ratified and X(a) denotes that not all protocols and annexes to the Convention have been ratified Source: International Maritime Organization

extremely important. These conventions are not self-executing and require domestic legislation to put them into force. Soft Law Soft law instruments are a relatively recent phenomenon in respect of the growing body of international agreements between states.21 They are generally regarded as non-binding instruments that do not create legal obligations, but instead reflect agreement between states concerning the need to cooperate in identified issue areas. While the law of the sea is mainly set out in hard law conventions, soft law instruments are also significant, including the various “codes” promulgated by U.N. bodies such as the IMO and the UN Food and Agriculture Organization (FAO). Examples relevant to the provision of good order at sea in the South China Sea include the Global Program of Action (GPA) on the Protection of the Marine Environment from Land-Based Activities established through the Washington Declaration,22 the FAO’s Code of Conduct for Responsible Fisheries, and the International Plan of Action against Illegal, Unregulated and Unreported (IUU) Fishing.

21  Dinah Shelton, ed., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford, Oxford University Press, 2000. 22 The 1995 Declaration on Protecting the Marine Environment from Land-Based Activities, done in Washington, November 1, 1995, reproduced in Environmental Policy and Law, 26 (1996), p. 37.

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The 2002 Declaration on Conduct of Parties in the South China Sea (DOC) is a significant soft law instrument for good order at sea in the South China Sea.23 It potentially provides a basis for cooperation in the South China Sea.24 While an important demonstration of good intent between China and the ASEAN counties, it is not a binding code of conduct. It is a political gesture rather than a major step towards conflict management and resolution, and Nguyen Hong Thao believes that it would be naïve to believe that because of the DOC, the parties have ceased activities that could complicate the situation.25 A code of conduct that provides a binding obligation to avoid conflict still remains desirable if good order is to prevail in the South China Sea. Shipping and Seaborne Trade Seaborne trade has largely driven economic growth in Southeast Asia, and much of this trade crosses the South China Sea. International trade in the region has been growing much faster than the economies of the regional countries themselves, and most of this is carried by sea. The importance of seaborne trade is explained by both geo-strategic and economic factors. As well as inter-island shipping in the Philippine and Indonesian archipelagos, ports on continental Southeast Asia are mainly linked by water rather than by developed road and rail systems.26 The size of the domestic shipping fleets in Vietnam, Malaysia, the Philippines, and Indonesia demonstrates the importance of local shipping in Southeast Asia. The situation is further evident in the “hub and spokes” nature of the contemporary container trade whereby major container ports, such as Singapore and Hong Kong, are the “hubs” where containers are offloaded from large, main line container ships for transshipment, usually by smaller vessels to other ports. Economically, Southeast Asia is trading much more with itself, as well as with Northeast Asia and elsewhere in the world as the process of globalization continues. This is particularly evident with petroleum products, liquid petroleum gas (LPG) and various chemicals. Singapore is now one of the major oil refining centers of the world and largely supplies the region with refined petroleum products. Again much of this traffic in and out of Singapore crosses the South China Sea.

23 The text of the Declaration on the Conduct of Parties in the South China Sea (DOC) is available at: www.aseansec.org/13163.htm 24  Beckman, “Legal Regimes for Cooperation in the South China Sea”, p. 227. 25  For a critical discussion of the DOC, see Nguyen Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea——A Vietnamese Perspective” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, pp. 207–21. 26 The exception is the Malay Peninsula where an excellent highway links ports and main centers in Malaysia with Singapore.

Good Order at Sea in the South China Sea

25

Most of the distribution and redistribution of fuels (petrol, diesel, kerosene, etc.) in Southeast Asia occurs by sea. This explains the large number of product tankers of all shapes and sizes to be seen at sea in the region, and often at anchor off regional ports waiting for their next cargo. Not surprisingly these ships, particularly the smaller ones, figure prominently in the incidence of piracy and armed robbery at sea, including some cases of entire vessels being hijacked. The cargoes of these ships can be readily disposed of on the black market. Safety and Security The requirements for safety and security include the availability of effective SAR services, good hydrographic surveys, reliable meteorological forecasts, and the provision of the necessary navigational aids. A ship security alert system (SSAS) was introduced with the ISPS Code to provide a ship-to-shore security alert in the event of an emergency, such as a pirate or terrorist attack, but a recent investigation found this system to be largely ineffective due to long delays in an alert reaching a response authority and a large incidence of false alerts.27 No process exists at present to make the system effective in the South China Sea. There must be concern about how a major maritime incident, such as an accident involving a cruise liner or a terrorist attack, or even the crash of an airliner at sea, 28 would be handled in the South China Sea. ASEAN and China have talked about SAR cooperation but so far this has been limited to “table top” exercises. With current search and rescue regions (SRR), Singapore has accepted SAR responsibility for a large part of the South China Sea.29 It must be noted, however, that SRR boundaries do not accord with national maritime boundaries, and this along with the current low level of ratification of the SAR Convention by littoral countries, suggests that there could be problems with mounting a largescale maritime SAR operation in the South China Sea.

27 Thomas Timlen, “The use of SOLAS Ship Security Alert Systems”, RSIS Working Paper No. 154, Singapore: S. Rajaratnam School of International Studies, March 5, 2008. 28 The loss of the Adam Air B737 aircraft in January 2007 is an example. Although the incident involved an aircraft, it occurred over the sea off the west coast of Sulawesi. The initial SAR operation appears to have been less than effective. “Fate of Adam Air Plane carrying 102 Remains Mystery”, Indanesia.com, January 5, 2007. (http://news.indahnesia. com/item/200701053/fate_of_adam_air_plane_carrying_102_remains_mystery.php) (accessed June 23, 2009) 29  See map in Sam Bateman, Catherine Zara Raymond and Joshua Ho, Safety and Security in the Malacca and Singapore Straits——An Agenda for Action. Singapore: Institute of Defence and Strategic Studies, May 2006, Fig. 11, p. 28.

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Long Range Identification and Tracking (LRIT) Largely at the behest of the United States, the IMO introduced a system in 2006 for the long range identification and tracking (LRIT) of ships.30 This is part of general arrangements for enhancing maritime domain awareness to detect and monitor illegal activity at sea. Several countries, including Australia and the United States, have already introduced extended offshore identification arrangements requiring ships approaching their shores to identify themselves well before they enter national waters. However, there is still no complete consensus on the political, legal or financial implications of LRIT. The new regulations on LRIT are included in SOLAS Chapter V on Safety of Navigation, through which LRIT will be introduced as a mandatory requirement for ships of 300 gross tonnage and upwards. These establish a multilateral agreement for sharing LRIT information for security and search and rescue purposes, amongst SOLAS contracting governments, in order to meet their maritime security needs and other concerns. They maintain the right of flag states to protect information about the ships entitled to fly their flag, where appropriate, while allowing coastal states access to information about ships navigating off their coasts. The LRIT information that ships will be required to transmit include the ship’s identity, location and date and time of the position. There is no interface between LRIT and the Automatic Identification System (AIS) required by the SOLAS Convention.31 One of the more important distinctions between LRIT and AIS, apart from that of range, is that, whereas AIS is a broadcast system, data derived through LRIT will be available only to the recipients who are entitled to receive such information, and safeguards concerning the confidentiality of those data have been built into the regulatory provisions. SOLAS contracting governments are entitled to receive information about ships navigating within a distance not exceeding 1000 nautical miles off their coast. While an operational system of LRIT would have high utility in providing good order in the South China Sea, it is not clear how the system would be implemented in the area. Many problems are likely. No coastal state in the region has expressed interest in receiving LRIT data and virtue of the geography of the area, some form of coordination and information sharing would be appropriate. However, operational implementation of LRIT is likely to be frustrated by the lack 30  For a comprehensive discussion of LRIT, see Martin Tsamenyi and Mary Ann Palma, “Long-Range Identification and Tracking Systems for Vessels: Legal and Technical Issues” in Rupert Herbert-Burns, Sam Bateman and Peter Lehr, eds, Lloyd’s MIU Handbook of Maritime Security, Boca Raton, F.L.: Auerbach Publications, 2008, pp. 215–32. 31  See discussion in Martin N. Murphy, “Lifeline or Pipedream? Origins, Purposes, and Benefits of Automatic Identification System, Long-Range Identification and Tracking, and Maritime Domain Awareness” in Rupert Herbert-Burns, Sam Bateman and Peter Lehr, eds, Lloyd’s MIU Handbook of Maritime Security, Boca Raton, F.L.: Auerbach Publications, 2008, pp. 13-28.

Good Order at Sea in the South China Sea

27

of agreed maritime boundaries in the South China Sea and the conflicting claims to sovereignty over offshore islands and reefs. These factors mean that there are no accepted limits to maritime jurisdiction on which to base LRIT, or arrangements for good order at sea more generally. And even with LRIT, some ships will want to hide for their own protection from potential corruption among those who have access to LRIT data, which might have criminal or terrorist intent. Illegal Activity Piracy and Armed Robbery at Sea The situation with piracy and armed robbery against ships in Southeast Asia has improved significantly in recent years. The number of actual and attempted attacks in the region has trended steadily downwards from 170 in 2004 to 78 in 2007, and 54 in 2008.32 The number of attacks in the South China Sea reflected this trend with eight in 2004, two in 2007, and none in 2008. However, these figures give a misleading picture of the situation in the South China Sea as attacks that occur near Pulau Tioman off the east coast of Malaysia and near Anambas and Natuna islands are listed as having occurred in Malaysia and Indonesia respectively. As shown in Table 2.2, there have been a significant number of attacks in these areas during 2008. As the areas are not much more than 100 nautical miles apart, it is not inconceivable that they involve the same group of attackers. Most of the attacks involved robbers armed with knives and machetes boarding the vessels and stealing personal valuables, cash and ship’s property. However, the tug Whale 7 and its barge were hijacked and their crews put ashore, and the vessels so far have not been located. Statistics from the International Maritime Bureau (IMB) need some interpretation. On the one hand, there could be some under-reporting of attacks. Both the IMB and the IMO have noted the reluctance by some shipmasters and shipowners to report incidents due to concerns that any investigation might disrupt the ship’s schedule, and insurance premiums might increase. Under-reporting may also occur because attacks on local craft, such as fishing boats, barges and small barter vessels, may not be reported to the IMB.33 However, there is also the risk of over-reporting. The widespread use of the Internet means that it is all too easy to report an attack by email and many attacks, particularly ones of a minor nature, that may not have been reported in earlier years are now reported. This is borne

32 ICC International Maritime Bureau, Piracy and Armed Robbery against Ships— Annual Report for Period 1 January 33  J.N. Mak, “Pirates, Renegades, and Fishermen: Reassessing the Dynamics of Maritime Piracy in the Malacca Straits”, paper presented at the Royal Australian Navy Sea Power Conference 2008, Sydney, January 29–31, 2008, p. 4.

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Table 2.2 Actual Attacks on Vessels underway in Southern Area of South China Sea, 2008 Date 24.03 13.04 13.04 25.04 30.04 03.06 04.06 29.06 07.09 30.09 02.10 03.10 01.12

Ship name Ocean Seal Monalisa Spar Cetus Pataravin 2 PU2008 PU3306 Medbothian Red Wing Wecoy 6 Whale 7 Sinobest2503 J.K.M. Muhieddine Sun Geranium Diamond Coral Entebe Star 21

Vessel type Lift barge Product tanker Bulk Carrier Product tanker Tug Barge Container ship Chemical tanker Tug Tug Barge Bulk carrier Chemical tanker LPG tanker Tug (with barge)

Location Off Anambas Islands Off Mangkai Islands Off Mangkai Islands NE of Singapore Str. Off Pulau Tioman Off Anambas Islands Off Anambas Islands Off Pulau Tioman Off Pulau Tioman Off Anambas Islands NE of Pulau Tioman Off Mangkai Islands Off Pulau Tioman

Sources: IMB, Piracy and Armed Robbery against Ships – Annual Report for Period 1 January – 31 December 2008

out to some extent by the relative increase in the number of minor attacks and attempted attacks shown in the IMB statistics over the last ten years. The vast majority of attacks in the region continue to be on vessels at anchor, in port or entering or leaving a harbor. For example, of the 78 actual and attempted attacks in Southeast Asia in 2007, 52 were on vessels that were not at sea. These attacks are usually of a minor nature and are best countered by more effective policing by port authorities, including active patrolling of ports and anchorages. The successful attacks that do occur at sea in Southeast Asia on vessels underway are mostly on small vessels, and on vessels that have slowed down for some reason. Larger vessels gain considerable protection from their size and speed. Most large, modern merchant ships engaged in international trade travel at speeds in excess of 14 knots, and it is both difficult and dangerous for small craft to attempt to approach them at this speed. Smuggling Smuggling at sea occurs both across the South China Sea and along its bordering coasts. Most criminal groups, including so-called pirates, engage in several different types of criminal activity. There is no strict demarcation between people involved in piracy and those involved in other forms of maritime crime, particularly smuggling. Many are non-professional criminals, such as fishermen and traditional

Good Order at Sea in the South China Sea

29

barter traders, engaged in opportunistic subsistence-level crime, making money by avoiding excise tax on, for example, cigarettes from Indonesia to Malaysia where the tax is very high, or fuels from Malaysia to the Philippines. The sea is a preferred medium for smuggling in Southeast Asia due to the archipelagic nature of the region and the fact that sea borders may be more easily crossed covertly than land borders. Larger quantities of contraband may also be carried by sea. Drug smuggling may occur across the South China Sea with opiates (mainly heroin) moving out of the “Golden Triangle,” overlapping Myanmar, Laos and Vietnam, through Thailand and Cambodia. The manufacture and trafficking of methamphetamines (“ice”) and other amphetamine-type stimulants (ATS) is also a problem in the region with precursor chemicals probably moving by sea. Illegal people movement is another feature of the South China Sea with recorded incidents of people moving illegally from the Philippines, Vietnam and Fujian province in southern China. The proliferation of small arms and light weapons is a major security problem in Southeast Asia. Small arms trafficking, much of which occurs by sea, is an integral part of broader transnational crime that includes terrorism, drug trafficking, money laundering, piracy, and human trafficking. Due largely to its proximity and role in the Cambodian conflict, Thailand is a key point of origin and transit in the trafficking of small arms and light weapons. The Philippines with its large legal and illegal arms industries, and major internal conflicts, also figures prominently in arms smuggling. Maritime Boundaries Good order at sea depends heavily on countries having agreed limits to their maritime jurisdiction based on established systems of maritime boundaries. However, maritime boundary making in the South China Sea is extremely problematic. The main reason for this lies in the geography of the region, with its concave areas of coast, numerous islands and longstanding historic claims to sovereignty. Many boundaries (or at least their end points or “turning points”) will require the agreement of three, or even more, countries. Furthermore, maritime boundaries cannot be agreed until sovereignty over islands and other features has been established. Prior to UNCLOS, countries could only claim a 3 nautical mile (nm) territorial sea. Maritime boundaries were not required unless countries were adjacent to each other or had territory lying within 6 nm of each other. Boundary differences then had little effect on the relative size of jurisdiction that a country could claim and maritime boundary negotiations between neighboring countries were comparatively straightforward. All this has changed. Countries now require maritime boundaries if they have territory within 400 nm of each other (700 nm in certain circumstances where there are extended continental shelves), and the location of a boundary can have a large effect on the size of a country’s maritime jurisdiction.

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Table 2.3 shows the current situation with maritime boundaries in the South China Sea. It is not a good picture. Very few of the maritime boundaries required have so far been fully agreed, and little progress is being made with delimiting outstanding ones. Indonesia is the one regional country that has assiduously pursued agreements on maritime boundaries with its neighbors. In contrast, the Philippines has no agreed maritime boundaries with any of its neighbors. The lack of EEZ boundaries means that enforcement against illegal fishing in the region is very difficult. When a full set of maritime boundaries is agreed in the South China Sea, this will mean that most, if not all, of the sea is part of the EEZ or territorial sea of one country or another. However, this outcome is most unlikely. It would depend first on the settlement of the sovereignty disputes, and then with the complex geography of the South China Sea, there would be the great difficulties of reaching agreement on boundaries between three or more countries in some parts of the sea. A full set of conventional straight-line maritime boundaries for the South China Sea seems an unachievable objective. Thus some alternative approach to boundary making is required if there is to be good order at sea in the South China Sea. Table 2.3 Country

Maritime Boundaries in the South China Sea Territorial sea No Yes NR

EEZ

Continental Remarks shelf Brunei–Malaysia No No Indonesia–Malaysia No Yes Indonesia–Vietnam Yes Yes Agreement not yet public Indonesia–China NR No No No No Malaysia–Philippines No Joint zone Malaysia–Vietnam NR No No China–Vietnam Yes Yes Yes In Tonkin Gulf. (part only) (part only) Philippines–China NR No No Notes: NR = Boundaries are not required because either the countries are too far apart to have the relevant boundary (i.e., over 24 nm in the case of a territorial sea boundary), or so close together that a territorial sea boundary only is required (e.g., as is the case with both Malaysia and Singapore and Indonesia and Singapore).

Good Order at Sea in the South China Sea

31

Marine Resources Living Resources Illegal, unregulated and unreported (IUU) fishing is a serious problem in the South China Sea. The flat and shallow seabeds of the area are among the world’s most productive fishing grounds,34 but the fisheries have been over-exploited and catches have declined over the years. In a large part, this is due to the lack of agreed limits to maritime jurisdiction. This has contributed to over fishing through a “beggar thy neighbor” approach, the lack of effective fisheries management arrangements, and the absence of effective enforcement against IUU fishing. Clashes between different groups of fishers and alleged illegal fishermen and maritime law enforcement forces also occur regularly in the area. While over-fishing is the major problem, this problem has been exacerbated by the serious degradation of coastal habitats. Fish stocks are affected by ecologically harmful practices such as the clearing of mangroves, the exploitation of coral reefs, and the destruction of sea grass beds. Other problems include sedimentation of estuaries, land-based pollution, saw-milling, dynamiting, the use of very fine mesh nets, and other forms of illegal fishing. Aquaculture was initially seen as a solution to the problem of depleted fish stocks but many aquaculture programs have been disappointing and have caused problems of pollution and natural habitat destruction. The Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 2000 was developed to ensure the compatibility of the conservation and management measures for straddling and highly migratory fish stocks between areas under coastal states jurisdiction and on the high seas. However, the area of application of the Convention does not include important spawning and catching areas for tuna stocks of concern in the Indonesian and Philippine archipelagos and the South China Sea. Unfortunately, the benefits that may have been gained in terms of fisheries management and conservation did not outweigh the difficulties in bringing into the negotiation the countries claiming sovereignty in the South China Sea.35 Non-living Resources As levels of energy self-sufficiency fall and countries become more concerned about their energy security, increasing attention is being given to the potential of 34 David Rosenberg, “Fisheries Management in the South China Sea” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, p.62. 35 Laurence Cordonnery, “A Note on the 2000 Convention for the Conservation and Management of Tuna in the Western and Central Pacific Ocean”, Ocean Development and International Law, 33 (2002), p. 10.

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offshore areas to produce oil and gas. The South China Sea is a focus of much interest in this regard because it is underlain by sedimentary basins that either produce oil and gas or are known to contain hydrocarbon deposits. There is a range of views regarding the potential of the area with the Chinese estimates being the most optimistic.36 However, accurate assessments have not been possible while limits to maritime jurisdiction have not been established. In the absence of agreed jurisdiction, joint development of resources would appear to be the only feasible approach.37 However, major problems are involved with developing a suitable model for joint development and agreeing on the area to be incorporated within a joint arrangement. There are also the risks of two countries agreeing joint development in an area which is affected by the claim of another party. Finally, oil companies are unlikely to make the heavy investment in the exploration and exploitation of offshore hydrocarbon deposits if sovereign rights in the prospective area are in doubt. There were reports during 2008 that China had taken this concern one step further by warning major foreign oil companies against entering into arrangements with Vietnam to exploit oil and gas resources in the South China Sea.38 Marine Environmental Protection Under the provisions of UNCLOS, marine environmental protection is primarily the responsibility of the coastal state in exercising its rights and fulfilling its obligations in its EEZ. However, in areas such as the South China Sea where maritime boundaries have not been agreed and there are overlapping EEZ claims, management becomes problematic. As noted earlier, marine environmental protection is also a specific and joint responsibility of countries adjacent to an enclosed or semi-enclosed sea under the regime for those seas in UNCLOS Part IX. Specific tasks required for marine environmental management include the monitoring and prevention of ship-sourced marine pollution; the mitigation of the effects of a major spill of oil, or other hazardous or noxious substance; the reversal of the degradation of marine habitats, the control of illegal, unreported or

36 An incomplete figure from China shows that the eight sedimentary basins within China’s unilateral U-shaped line contain 34.97 billion tons of petroleum reserves, including 1,182 billion tons of oil so far discovered and 8,000 billion cubic meters of gas. Zou Keyuan, “Cooperative Development of Oil and Gas Resources in the South China Sea” in Sam Bateman and Ralf Emmers, eds, Security and International Politics in the South China Sea: Towards a Cooperative Management Regime, Abingdon: Routledge, 2009, p. 80. Ibid., p. 85 37 38 Greg Torode, “Tussle for Oil in the South China Sea”, South China Morning Post, July 20, 2008.

Good Order at Sea in the South China Sea

33

unregulated (IUU) fishing; and the establishment as required of marine protected areas and marine parks. Several international and multilateral programs have been established to protect the marine and coastal environment of the South China Sea. These have all been steps in the right direction but their way ahead has not been easy. The South China Sea comes within the scope of the Action Plan of the Coordinating Body of the Seas of East (COBSEA), which is part of the UNEP’s Regional Seas Program, but COBSEA is not always successful due to the lack of political will and a lack of awareness by the wider community of the consequences of marine and coastal degradation.39 The United Nations Environmental Program (UNEP) and Global Environmental Facility (GEF) project on Reversing Environmental Degradation in the South China Sea and Gulf of Thailand is a major multilateral conservation effort, but it only covers areas under accepted national jurisdiction. Perhaps the most widespread policy response adopted by the countries around the South China Sea to achieve marine environmental protection and sustainable fisheries management has been the establishment of Marine Protected Areas (MPAs). According to the MPA Global Database, 554 MPAs have been declared in countries around the South China Sea.40 Conclusion Despite the strategic, economic and political importance of the South China Sea, current arrangements for providing good order at sea in the South China Sea fall well short of what is desirable. There are few maritime boundaries and key international regimes for providing maritime safety and security appear not well supported by bordering countries. Resolution of the sovereignty claims and agreement on maritime boundaries seem quite unlikely in the foreseeable future. While the risks of conflict between claimant countries may have fallen, there is still no effective regime in the area for providing key elements of good order at sea: the safety and security of shipping; the preservation, protection, and conservation of the marine environment; agreed arrangements for the exploration and exploitation of marine resources; and the prevention of illegal activity at sea. This will only be achieved by a much higher level of cooperation than exists at present, including a possible web of provisional arrangements covering cooperation for each requirement of good order at sea, and perhaps even with different areas of geographical application for each requirement. However, changed mindsets are necessary before this can happen. The littoral countries must first accept that the benefits of cooperation in terms of “win–win” outcomes outweigh the costs that might result from any perceived diminution of 39 Hugh Kirkman, “The East Asian Seas UNEP Regional Seas Programme”, International Environmental Agreements, Vol. 6, 2006, pp. 305–16. 40 Rosenberg, “Fisheries Management in the South China Sea”.

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Maritime Security in the South China Sea

sovereignty. It should be accepted that cooperative management regimes need not be prejudicial to the sovereignty claims of individual countries.41 They would involve a functional approach to cooperation and joint development. Benefits would result for both the littoral countries and the other countries with an interest in good order in the South China Sea. To achieve this outcome, a much greater effort is required to promote the notion of functional cooperation and to get away from the idea that “fences in the sea” are required in the same way as we have border fences on land. The effort required is not to be underestimated. It requires identifying particular functions for cooperation; defining the area for cooperation; finding a formula to share costs and resources; and where required, establishing a management body.42 This seems the only way ahead for good order at sea in the South China Sea .

41 The guidelines provided in CSCAP Memorandum No. 13 should be of assistance here (see note 7 above). 42 Djalal, “The South China Sea: The Long Road Towards Peace and Cooperation”, pp. 185—6.

Chapter 3

Maritime Trade Development in Asia: A Need for Regional Maritime Security Cooperation in the South China Sea HONG Nong

Review of Maritime Trade in Asia Economic Background in Asia In spite of the Iraq war, the sharply increasing price of oil and the SARS outbreak in 2003, the gross domestic product (GDP) of Asian countries grew by 6.3 percent, higher than the 5.8 percent growth in 2002, becoming the driver for the world economic development. The average GDP of 20 developing countries increased from 4.6 percent in 2002 to 5.2 percent in 2003. Trade growth in 2003 was positive for the large majority of the 40 Asian economies. The majority of Asian countries is increasing importing and exporting with other Asian countries. This growth of trade is at the same time the cause and effect of the general progress of regional integration in Asia. As regards Southeast Asia, in January 2003, countries belonging to the ASEAN free trade area renewed their commitment to promote regional trade by signing the Protocol to Amend the Agreement on the Common Effective Preferential Tariff (CEPT) Scheme, whereby import duties would be eliminated. With regard to neighboring countries, in October 2003, both India and China signed a Treaty of Amity and Cooperation, ensuring their mutual cooperation towards developing and sustaining the prosperity and security of the region. On the same day, the commitment for economic cooperation between ASEAN states and China, Japan, and India was also affirmed in the form of framework agreements and partnerships. The agreement cover various aspects of trade, including matters classified under trade facilitation such as customs cooperation, non-tariff measures, mutual recognition arrangements, conformity assessment, accreditation procedures, and standards and technical regulations.

 The data in this part are based on United Nations Conference on Trade and Development, Review of Maritime Transport 2004, New York and Geneva.  Ibid.

Maritime Security in the South China Sea

36

Seaborne Trade World seaborne trade increased strongly in 2003, reaching 6.17 billion tons of loaded goods. The breakdown of world seaborne loaded goods by continent was as follows: Africa’s share of world exports was 8.9 percent, while America’s was 20.7 percent. Asia was by far the continent with the largest share of the world tonnage of seaborne loaded goods—37.2 percent. Europe’s share was the second largest at 25.1 percent, while Oceania’s share was the smallest, only 8.0 percent of world seaborne loaded goods. Total maritime activities measured in ton-miles increased to 24,589 billion ton-miles, compared with 23,217 billion ton-miles in 2002. Asian countries were major players in world maritime transport, with sizeable shares in several activities. They accounted for 35.8 percent of containership ownership, 45.7 percent of containership operation, 60.4 percent of seamen, 62.3 percent of container port throughput, 64.7 percent of container port operators, 83.2 percent of containership shipbuilding and 99 percent of ship demolition. In addition to being one of the focuses of the main east–west shipping routes articulated around world port leaders such as Hong Kong (China) and Singapore, they are also the focus of an intensive and significant intra-Asian shipping trade. Seaborne trade covers trade in tankers, dry cargo shipments, liner shipments of containerized cargoes. In 2003 the total world shipment of tanker cargoes reached 2.20 billion tons, after rebounding by 3.4 percent during the year. About 76.5 percent of this tanker trade was in crude oil, with the remainder as petroleum products. Crude oil seaborne shipments were increased by 3.5 percent to 1.66 billion tons in 2003. Developing countries in South and East Asia took 301.2 million tons during 2002. LNG shipments increased by 4.9 percent during 2002 to reach 150 BCM (billion cubic metres) of natural gas. This is about 5.9 percent of world production. The largest importing area is located in the Far East, where major importers continued to be Japan, with 72.7 BCM, and the Republic of Korea, with 24.1 BCM. Supplies came from Indonesia, with 34.3 BCM; Malaysia, with 20.5 BCM; Qatar, with 18.6 BCM; and Australia, with 10 BCM. Maritime Trade and Demand for Maritime Transport Services in Asia Containerized Trade Twelve major South and East Asian exporters together accounted for 49.3 per cent of the world’s containerized exports in 2003. China is by far the world’s largest exporter of containerized cargo, with 14.4 million TEUs (twenty-foot equivalent unit) in 2003. China’s export volume of containerized cargo amounted  Ibid.  Ibid.

Maritime Trade Development in Asia

37

to 21.54 million TEU in 2005, 24.62 million TEU in 2006 and 27.65 million TEU in 2007. China will then account for 24 percent of the world’s containerized trade exports. In fact, globally, the largest bilateral containerized trade flow is that of Chinese exports to the United States. The second largest Asian exporter is Japan, whose containerized exports are expected to reach 442,000 TEUs in 2005. India’s containerized exports are expected to grow annually by a relatively low 3.8 percent, which will leave the country in eighth position among the leading South and East Asian exports. The most important intra-Asian containerized trade flow in 2003 were Chinese exports to Japan (1,041,961 TEUs), followed by Chinese exports to Hong Kong, China (720,734 TEUs), Taiwan Province of China exports to China (688,334 TEUs), Republic of Korea exports to China (504,081 TEUs), and Japanese exports to China (502,895 TEUs). Chinese imports and exports from other Asian countries were also those with the highest growth rates. Ports and Liner Shipping Services Sixty-two percent of global container port throughput takes place in Asia. In 2003, 20 of the world’s top 30 container ports were located in Asia. Shenzhen is the port that in 2003 registered the highest absolute growth of all ports in the world, with an annual increase of 3 million TEUs. Salalah (Oman), ranked 34th in the world, registered the highest annual growth rate among the world’s top 70 ports, with an increase of over 65 percent between 2002 and 2003. Hong Kong (China) and Singapore continue to be by far the largest container ports in the world. Most intercontinental liner shipping routes that link Asia with Europe or North America will call at both of them. Nevertheless, there are also an increasing number of additional hub ports and secondary direct calling ports, and most liner shipping alliances tend to offer alternative routes. In order to be competitive in the transshipment business, Malaysia has effectively lifted cabotage restrictions for the main liner shipping routes. International liner shipping companies are allowed to pick up cargo in Malaysian secondary ports and transship, for example, in Port Klang or Tanjung-Pelepas. Further to the north, Gwang Yang (Republic of Korea) expects to benefit from cabotage restrictions in neighboring countries. In particular, it has ambitions to serve as a major transshipment center for the trade of Japanese and Northern Chinese ports.

 Nazer Y Khalid, “Container Shipping Within The Middle East And Asian Countries – Dynamics And Trends”, at http://www.mima.gov.my/mima/htmls/papers/pdf/nazery/ Dubai%20paper%20_7Nov_.pdf (accessed June 23, 2009).  Ibid.  Ibid.

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Supply of Maritime Business in Asia Asian countries have a significant presence in most maritime sectors, including liner shipping companies, ownership of containerships, nationally flagged vessels, containership building, classification societies, protection and indemnity clubs, container manufacturing, ship-to-shore crane manufacturing, container port operators, ship scrapping, and crewing. Sixteen of the world’s top 25 liner shipping companies and 28 of the top 50 are based in Asia. The largest Asian ship-owning companies at the beginning of 2004 were evergreen (Chinese Taiwan), COSCO (China), APL (Singapore), NYK (Japan) and K-Line (Japan). Nine of the top 10 containership builders are from Asia. Ten of the 25 largest classification societies are based in Asia. Together, they are responsible for 26 percent of the world’s classifications of commercial vessels. Most of the major protection and indemnity clubs are based in the United Kingdom. The largest Asian club is based in Japan. Approximately 90 percent of all containers are being built in China. Almost all global ship scrapping takes place in Asia. India, Bangladesh, China, and Pakistan together accounted for 97 percent of the world’s ship scrapping activity between 1994 and 2002. Sixty percent of the world’s ratings are from Asia, the largest providers being the Philippines, followed by Indonesia, Turkey, China, and India. Maritime Country Profile Different maritime businesses are concentrating their activities in selected Asian countries. This development leads to a situation where some Asian countries are specializing in certain sectors, and other countries in other sectors. China is the country with by far the most container port throughput in Asia. Singapore and Hong Kong (China) have their largest maritime participation through their respective international port operating companies—Port of Singapore Authority and Hutchison Port Holdings, which not only operate in their traditional home port, but have also expanded and invested in concessions and port privatizations abroad. Japan has its highest market share with its classification society Nippon Kaiji Kyokai. The Republic of Korea has by far its highest market share in containership building. Except for Singapore, most Asian countries have a large proportion of their fleet registered under a foreign flag. Chinese Taiwan, mostly through the Evergreen group, has its highest market share in containership operation. Just like other major operators from China, the Republic of Korea, and Japan, these liner shipping companies tend to operate fleets that are only partly owned by them and a large proportion of the vessels are chartered in. Singapore and Hong Kong (China), on the other hand, have a higher market share in container ship owning than in container ship operation.   Clarkson Research Studies, March 2004.

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China is among the few Asian countries that participate in almost all maritime sub-sectors. Chinese shipping companies are among the fastest growing regarding to supply side, and the country is host to the most important container and crane manufacturers. On the demand side, Chinese containerized exports are going at almost 18 percent annually and today make up almost one quarter of the world’s total. As a result of these developments, Chinese ports too are among the fastest growing in the world, with annual increases of port throughput of between approximately 18 and 153 percent in major ports. In terms of volume, 70.5 percent of Chinese port throughput is cabotage traffic, and 37.7 percent takes place in inland ports. In 2003, port throughput of foreign trade grew by 23.7 percent and cabotage port throughput by 25.5 percent. China also has a remarkable market share in ship scrapping, which has grown further in recent months due to the country’s demand for steel. Concerning containership registration, ownership and operation, China has a relatively typical industry structure for a country that hosts important liner shipping companies. Threat to Maritime Trade in Asia World trade is largely dependent on maritime transport. Thus at present maritime trade is developing at high speed in Asia, given the region’s significant role in international commerce. But there is potential threat to maritime transport resulting from the explosion of maritime violence in Southeast Asia. Roughly 45 percent of the world’s commercial shipping moves through the region’s waters, and the frequent attacks on commercial vessels passing through the region can hamper international trade and lead to severe economic loss. Indeed, maritime attacks in the region have caused an estimated $16 billion in economic loss over the past five years.10 Piracy Piracy has existed for nearly as long as people have sailed the ocean. The reality of piracy, has posed a threat to all states’ maritime interest for centuries. Piracy remains a serious threat to international commerce and safety in modern time, especially in the Southeast Asian archipelago where it has been a nagging problem for centuries. Commercial ships in this region have always been particularly

  Review of Maritime Transport 2004, supra note 1. 10  John J. Brandon, Piracy as Terrorism, J. Com. (June 3, 2003), at http://www. bc.edu/schools/law/lawreviews/meta-elements/journals/bciclr/28_1/03_FTN.htm (last visited November 20, 2004).

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vulnerable to piracy due to the narrow waterways and countless small islands that define the region’s geography.11 The situation gets even worse now in the Malacca Straits and Singapore Straits due to its location as a busy and significant sea lane. The Malacca Straits lies between Malaya and Sumatra, linking the Pacific Ocean and Indian Ocean. In virtue of its strategic geographic location, it is one of the oldest and busiest shipping lanes in the world and the most significant sea lane in Asia. The Malacca Straits serves as a primary conduit for the movement of cargo and human traffics between the Indo-European region and the rest of Asia and Australia. It is a shorter east–west sea route than Indonesia’s Macassar and Lombok Straits. Every year about RM3.8 trillion worth of goods and services pass through the region formed by the Straits of Malacca and other associated shipping routes.12 It is reported that about 80,000 ships passing through it annually (with a daily rate of 220), accounting for about one third of global trade, and half the world’s oil. By using the Malacca Straits, the Japanese petroleum industry saves up to RM1.3 billion annually. There was a sharp increase in maritime piracy in the late 1990s following the massive unemployment and political instability caused by the Asian economic crisis.13 When the International Maritime Organization of the United Nations started to collect information about acts of piracy and armed robbery against vessels since 1984, close to 4,000 such acts were reported to them. Nearly two-thirds of the attacks in 1999 occurred in Asia, with 113 of the 285 reported cases taking place in Indonesia’s waters and ports.14 The risk of attack is increasing, with 90 percent of the world’s trade moving via ship and 45 percent of all shipping moving through the pirate-infested waters of Asia. Clearly, piracy is becoming an increasing threat to global trade. The problem, moreover, has grown worse in the new century. Over half of the 330 cases worldwide in 2004, 169 cases occurred in Southeast Asia, and a map of the region included in the IMO’s annual Report on Piracy and Armed Robbery against Ships indicates that most of the attacks took place in or around Indonesian waters.15 The country has earned a reputation as a haven for pirates, 11  See Ger Teitler, “Piracy in Southeast Asia: A Historical Comparison”, Mast 1:1, 72 (2002), available at http://www.marecentre.nl/mast/documents/GerTeitler.pdf (last visited November 20, 2004). 12  Malacca Straits Research and Development Centre, Introduction to the Straits of Malacca http://www.fsas.upm.edu.my/~masdec/web/straits.html (last visited December 5, 2005). 13 Erik Barrios, Casting a Wider Net: Addressing the Maritime Piracy Problem in Southeast Asia http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/ bciclr/28_1/03_TXT.htm (last visited December 5, 2005)). 14  www.nvu.bg/stanag/PracticTest/ Files/Reading/Reading7/R.%20Test%207%20T. htm (last visited December 5, 2005). 15  http://www.icc-ccs.org/prc/piracy_maps_2004.php (last visited December 5, 2005).

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and a couple of years ago a well-known correspondent and author on organized crime in Asia even dubbed the country the “pirate republic”.16 Most of the personnel employed in Southeast Asia‘s maritime security forces are grossly underpaid. As a share of GDP, for example, Indonesia’s defense budget is the lowest in Southeast Asia. Furthermore, as a result of the Asian financial crisis, the value of its defense budget declined by 65 percent from 1997 to 1998, aggravating the already tight fiscal problems that prevent it from allocating more to its maritime security force. Moreover, in many of Southeast Asia’s armed forces, a culture of corruption has evolved under years of authoritarian governments, often abetted by the military. With limited budgets, the military often cannot afford to provide sufficient pay to officers and lower ranking members, who then resort to “off budget” sources of income. In countries with high tariff barriers, which include many Asian countries, smuggling is a lucrative business and works well for fencing pirated goods.17 Maritime Terrorism The interweaving of maritime piracy and terrorism has tended to threaten regional security in Asia. Piracy in the high sea has gradually been used as the tool for terrorist groups. The interrelation between piracy and terrorism poses great threat to the energy market since oil and natural gas transportation are mostly through the areas where piracy happened most frequently. Pirates and Islamic terrorists have been acting jointly in the Arabian Sea, the South China Sea, and the West Africa coastal area. Since the international community has worked hard to freeze the capital of terrorist groups, they tend to acquire funds through the activities of pirates. Maritime attacks in recent years have shown that terrorism has been expanded to the sea. Security experts warn that the terrorists may create a hazard by crashing a vessel containing dynamite or even weapons of mass destruction in a port or a harbor. Such attacks would halt international commerce and lead to the loss of billions of US dollars. It is well known that the most efficient way for terrorists to intervene in the global economy is to attack the oil supply. It is relatively easy to protect the potential targets for attack on land; however, the oil supply through maritime transport is mostly vulnerable to maritime terrorists. Sixty percent of the world’s oil supply is through about 4,000 oil tankers which are old and slow. They become the targets for maritime terrorists. After 9.11, al-Qaedais has moved some of their bases onto the sea and set up a “terrorism fleet” composed of 20 vessels, scattering at the Arab Sea and Indian Ocean. At a maritime security meeting in Singapore on November 29, 2005, an expert on terrorism claimed that al-Qaeda had been developing underwater attack technology. 16  Lintner, Bertil, Blood Brothers: The Criminal Underworld of Asia, New York and Houndmills, Basingstoke: Palgrave Macmillan 2003. 17  Dana Robert Dillon, Piracy in Asia: A Growing Barrier to Maritime Trade http:// new.heritage.org/Research/AsiaandthePacific/BG1379.cfm (last visited December 5 2005).

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Natural Disasters and Man-made Hazards An example of natural disaster attacking the region, and its effects, is the earthquake and the tsunami in December 2004, the epicenter of which was off the west coast of Northern Sumatra. It was the worst tsunami disaster on record and one of the top 10 earthquake disasters ever recorded. It resulted in more than 225,000 confirmed deaths (as at February 1, 2005).18 Hazards caused by human beings contribute to the deterioration of the oceanic environment in this region. Since 1992, when the Liberian-registered tanker Nagasaki Spirit collided with container Ocean Blessing in the Malacca Straits spilling some 12,000 tonnes of crude, there have been reports on oil spills in this area every year. In December 2002, a potentially disastrous crude oil spill in Singapore waters, when a small general cargo vessel collided with a heavily laden single-hulled tanker in the middle of the Singapore Straits, was contained to just 350 tonnes. In June 2003, the MV APL Emerald, a 40.077-tonne container ship, spilt about 150 tonnes of fuel oil when it ran aground near Horsburgh Lighthouse, in the eastern approaches of the Singapore Straits. In October 2004, an oil spill swamped a chain of tourist islands off the coast of the Indonesian capital, polluting a marine park, and affecting businesses in the area.19 Regional Maritime Security Cooperation in the South China Sea The increasing importance of maritime trade and the threat to it makes addressing issues of maritime security in the South China Sea urgent. The South China Sea stretches roughly from Singapore and the Strait of Malacca in the southwest, to the Straits of Taiwan (between Chinese Taiwan and China Mainland) in the northeast. The South China Sea region is the world’s second busiest international sea lane. More than half of the world’s supertanker traffic passes through the region’s waters. In addition, the South China Sea region abounds in oil and gas resources strategically located near large energy-consuming countries. Asia’s economic growth rates have been among the highest in the world and this economic growth will be accompanied by an increasing demand for energy. Much of this additional demand will need to be imported from the Middle East and Africa. Excluding cargoes bound for South Asia, most of this volume would need to pass through the strategic Straits of Malacca into the South China Sea.20 Countries in the AsiaPacific region depend on seaborne trade to fuel their economic growth, and this has led to the sea’s transformation into one of the world’s busiest shipping lanes. Over half of the world’s merchant fleet (by tonnage) sails through the South China 18  http://www.gesource.ac.uk/hazards/tsunami2004_full.html (last visited December 5, 2005). 19  http://www.marinergroup.com/oil-spill-history.htm (last visited December 5, 2005). 20  http://www.hceis.com/ChinaBasic/SeasAndDeserts/Deserts_seas.htm (last visited 5 December 2005).

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Sea every year.21 The economic potential and geopolitical importance of the South China Sea region has resulted in contention between the surrounding nations to claim this sea and its resources for themselves. The latest development of the South China Sea (SCS) dispute is at present the most intricate maritime dispute in the world involving many countries and regions. The states around and their people may encounter maritime terrorism, marine pollution, and even potential conflicts arising from overlapping sovereign rights and jurisdiction claims in this area. A need for regional maritime security cooperation is being called for to address the issues. Beside the existing international instrument such as UN and IMO, efforts from international community and respective country are being made. RMSI Washington’s concerns over the potential terrorist threat in the Malacca Straits were clear in late 2001 and early 2002 when the U.S. and Indian navies collaborated to protect U.S. merchant shipping at the northern end of the Malacca Straits, which it has long viewed as the key maritime chokepoint in Asia. In early 2004, the United States began taking a more overt interest. Admiral Thomas B. Fargo, then commander-in-chief of U.S. Pacific Command, highlighted the issue during testimony to the U.S. House of Representatives in March 2004, and with a speech in Vancouver in May,22 by suggesting a Regional Maritime Security Initiative (RMSI) to combat piracy, maritime terrorism, and sea-trafficking in people and narcotics. According to Fargo, RMSI would involve not only closer intelligencesharing with Southeast Asian states, but also the deployment of U.S. Marines and special forces on high-speed vessels to deal with maritime threats, particularly from terrorists. Fargo secured support for RMSI from Singapore, which was negotiating a “strategic framework agreement” on security with Washington and had already supported other key U.S. maritime security-related measures, notably the Proliferation Security Initiative and Container Security Initiative. However, RMSI was not well received by Indonesia or Malaysia. Both stated that security there was the responsibility of the coastal states, that they possessed the capacity to ensure security without any deployment of extra-regional forces, and that the introduction of such foreign forces might even be counterproductive by provoking terrorist incidents. Fargo attempted unsuccessfully to assuage these regional concerns, emphasizing that RMSI was still embryonic and that it was mainly concerned with sharing information rather than the deployment of U.S. forces in the region.

21  See above. 22  Dire Straits, Piracy and Maritime Terror in Southeast Asia, http://www. southchinasea.org/docs/Piracy%20and%20Maritime%20Terror%20in%20Southeast%20A sia,%20IISS.pdf (last visited December 5, 2005).

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Shangri-La Facilitation The issue of RMSI continued to be discussed at the IISS “Shangri-La Dialogue,” a meeting of defense ministers and the wider national security establishment of the Asia-Pacific region in Singapore in early June 2005 (the third IISS Asia Security Conference). The meeting facilitated significant convergence between the positions of the various interested parties regarding RMSI23 and resulted in a degree of consensus, facilitating practical multilateral collaboration. U.S. Defense Secretary Donald Rumsfeld explained that Admiral Fargo’s comments on military intervention in the region had been “misreported.” While Malaysian Defense Minister Najib Tun Razak emphasized the danger that deployment of foreign forces would pose to the “ideological battle against extremism and militancy,” he accepted that Southeast Asian states “should definitely expand our cooperation with the United States” in the acquisition and sharing of intelligence, and in “surveillance technology.”24 At the conference, Indonesian representatives recognized the legitimate interests of extra-regional states in the security of the Straits and expressed willingness to engage them in a multilateral framework that respected littoral states’ sovereignty. There were some significant developments in the aftermath of the ShangriLa Dialogue. Within days, the ministerial meeting of the Five Power Defense Arrangements (FPDA; involving Australia, Malaysia, New Zealand, Singapore, and the United Kingdom) agreed that the scope of the grouping’s military exercises, which already had a maritime focus, should be widened to include non-conventional security threats, including maritime terrorism. The first FPDA exercise involving a counter-terrorism dimension, which Indonesia attended as an observer, was held in September 2005. Soon afterwards, Indonesia proposed trilateral coordinated maritime patrols in the Malacca Straits, involving its own forces and those of Malaysia and Singapore. The first Malacca Straits Coordinated Patrol (MALSINDO), during which each state’s vessels patrolled its own territorial waters, commenced in late July and involved 17 ships.25 Moreover, as part of a Southeast Asian tour in late June, Admiral Fargo visited Malaysia, and the two sides were reported to have “mended fences,” with the U.S. emphasizing its respect for littoral states’ sovereignty while offering to share intelligence and boost their “technical competency” to deal with piracy and potential maritime terrorism. For its part, Malaysia accepted that the U.S. role posed no threat to its sovereignty, and welcomed Washington’s offer of practical assistance. Littoral states also made efforts to enhance their maritime security capacities: the Indonesian navy’s Western Fleet announced that it was stepping up anti-piracy operations in the

23 Ibid. 24 Ibid. 25 Ibid.

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Malacca Straits, while Malaysia announced that it would establish a coast guard, to be known as the Malaysian Maritime Enforcement Agency.26 Meetings on Malacca Security Since late 2003, the security of shipping in Southeast Asian ports and waters, particularly in the Malacca and Singapore Straits, has emerged as a key concern for countries in and outside the region. Thus a series of relevant meetings were conducted aiming to address the issues. The “Conference on the Straits of Malacca—Building a Comprehensive Security Environment” was held in October 2004 in Kuala Lumpur. Maritime security has been included in the agenda of ASEAN Regional Forum (ARF)27 Security Policy Conference (ASPC) in Beijing November 2004. Defense and security officials from ARF’s 24 members attended the event. Tripartite Technical Expert Group (TTEG) on Maritime Security was held in December 2004. The Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore was convened in August 2005 in Batam, Indonesia, to discuss matters pertaining to the safety of navigation, environmental protection, and maritime security in the Straits of Malacca and Singapore. The “Jakarta Meeting on the Straits of Malacca and Singapore—Enhancing Safety, Security and Environmental Protection” was held in Jakarta in September 2005 in dealing with issues of environmental protection in the Straits of Malacca and Singapore. Officials from the Ministry of Communications and the Ministry of Foreign Affairs of China attended this meeting. China agreed that the littoral states of the Strait of Malacca and Singapore should play the leading role in maintaining the security of the Straits. China also expressed the willingness to contribute to the cooperation in this region. Regional Efforts Regional cooperation to combat maritime terrorism has been enhanced since 2003. The 37th ASEAN Ministerial Meeting in June 2004 in Jakarta agreed that the ASEAN Security Community would strengthen their capacity to deal with security challenges, both traditional and non-traditional security issues. The ASEAN Security Community would strengthen ASEAN relations with Dialogue Partners and its other friends and would enhance ASEAN’s role as the ARF’s primary driving force.28 A similar statement was made in the Joint Communiqué 26  Dire Straits, Piracy and Maritime Terror in Southeast Asia, http://www. southchinasea.org/docs/Piracy%20and%20Maritime%20Terror%20in%20Southeast%20A sia,%20IISS.pdf (last visited December 5, 2005). 27 ARF is composed of ASEAN members, ASEAN dialogue partners, Papua New Guinea, Mongolia, the Democratic People’’s Republic of Korea and Pakistan. 28  Joint Communique of the 37th ASEAN Ministerial Meeting Jakarta, June 29–30, 2004, http://www.aseansec.org/16192.htm (last visited December 5, 2005).

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of the 4th ASEAN Ministerial Meeting on Transnational Crimes (AMMTC) and the Joint Communiqué of the 1st AMMTC+3 in January 2004 in Bangkok. The Convening of the Bali Regional Ministerial Meeting on Counter Terrorism (BRMM-CT) in Bali in February 2004 means to translate strong political commitments of the countries in the Asia-Pacific region in combating terrorism into practical collaborative actions. The Jakarta Center for Law Enforcement Cooperation (JCLEC) was formally opened in Semarang in July 2004, to build regional operational law enforcement capacity needed to fight transnational crimes, with a key focus on terrorism. The Second ARF Intersessional Meeting on Counter-Terrorism and Transnational Crime (ISM CT-TC) was held in March 2004 in Manila, the Philippines. The ARF Statement on Strengthening Transport Security Against International Terrorism expanded cooperation and enhanced participation in international fora and international organizations, in particular, by adherence to the International Maritime Organization’s (IMO’s) International Ship and Port Security (ISPS) Code and relevant standards of the International Civil Aviation Organization (ICAO). In addition to cooperating between themselves, Southeast Asian countries have also set up a sound communication mechanism through various means, especially through their consensus with the United States, China, and the European Union on security issues. The signing of Memorandum of Understanding between ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues at the 1st AMMTC+3 provides concrete and operational measures on cooperation in the field of non-traditional security issues between ASEAN and China. Southeast Asian countries have been very positive on cooperating with the United States to combat terrorism including maritime terrorism. Besides, joint military exercises both amongst the ASEAN and with countries outside the region have increased sharply in 2004. ASEAN states are also taking steps to enhance its military forces, with emphasis on the construction of air forces and navy to ensure the regional security. Extra-regional stakeholders in the security of the Straits have been particularly concerned about rising maritime crime and the potential for maritime terrorism there. Since the late 1990s, Japanese security policymakers have favored the creation of a multinational maritime security and safety regime that would include a capacity for counter-piracy. Tokyo’s more ambitious proposals—such as late Prime Minister Keizo Obuchi’s call in 1999 for a regional coast guard body—have made little headway. Nevertheless, Japan has succeeded in promoting bilateral anti-piracy exercises involving its own coast guard and regional states’ security forces. Japan has also started negotiations to establish a Regional Cooperation Agreement on Anti-Piracy in Asia (ReCAAP), primarily involving intelligence exchange between members of the Association of Southeast Asian Nations (ASEAN): Japan, China, South Korea, India, Bangladesh, and Sri Lanka. The Philippine, Indonesian, and Malaysian militaries agreed in November 2005 to set up two defensive areas between Sulu Sea and Sulawesi Sea to monitor and inspect suspected vessels in order to prevent maritime terrorism and piracy.

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Legal Framework for International Transport Given that world trade is largely dependent on maritime transport, much of the focus has been directed to enhancing maritime transport security and addressing the particular challenges posed by containerized transport. The United States initiated the Customs Trade Partnership Against Terrorism (C-TPAT), the Container Security Initiative (CSI), and the 24-Hour Advance Manifest Rule (or the 24-Hour Rule). Many important international developments have been made at the IMO (International Maritime Organization), ILO (International Labour Organization), World Customs Organization (WCO) ,and OECD (Organization for Economic Cooperation and Development).29 Recent amendments are made to the 1974 Safety of Life at Sea Convention (SOALAS), including the new International Ship and Port Facility Security Code (ISPS Code).30 This new security regime entered into force in July 2004 and its timely implementation was mandatory for all SOLAS member states, without any distinction as to their level of development. There are a number of international conventions affecting the commercial and technical activities of maritime transport, such as the United Nations Convention on a Code of Conduct for Liner Conferences,1974; United Nations Convention on the Carriage of Goods by Sea, 1978; International Convention on Maritime Liens and Mortgages, 1993; United Nations Convention on International Multimodal Transport of Goods, 1980; United Nations Convention on Conditions for Registration of Ships, 1986; International Convention on Arrest of Ships, 1999. Challenges and Opportunities These efforts on maritime security cooperation are accompanied with risks when the national interest encounters challenges. Some countries may have suspicions concerning the capabilities and intentions of their neighbors. Regional navies acquire their ships, submarines, and aircraft from a wide range of sources.31 The problems become even more acute with the increase of the technological levels of navies. Navies are at different stages of technological development. Technical deficiencies in some navies may significantly inhibit cooperation when less advanced navies are reluctant to engage in operational cooperation for fear that their deficiencies will be too apparent. Another problem is that cooperative activities may be used to gain intelligence on the capabilities of another country. It is well known that even innocuous naval port visits provide an opportunity to gather intelligence—both for the host nations 29  Review of Maritime Transport 2004, supra note 1. 30  See O. Ozcayir, “The ISPS Code”, Journal of International Maritime Law, 9 (2003), p. 578. 31  Sam Bateman, Regional and International Frameworks for Maritime Security Cooperation, http://www.iips.org/Bateman_paper.pdf (last visited December 5, 2005).

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collecting information about visiting ships and for visiting ships finding out about the host nations. Normally it is standard practice for a host nation to close down sensitive transmissions while a “potential intelligence collector” (PIC) is in port. Expert intelligence collectors can obtain much vital information on another navy, particularly data on weapons, sensors, and communications systems, during operations with ships and aircraft of another country.32 International cooperation has been undertaken to combat pirates in Southeast Asia. However, due to reasons relating to the jurisdiction and the power of the relevant international organizations, unresolved conflicts between international and domestic laws concerning any coastal state’s obligation and jurisdiction to combat pirates (who are highly mobile across any national border), and the financial implications for certain international organizations that enforce any effective control against pirates, international cooperation on combating piracy in Southeast Asia has had only limited success. An innovative approach to piracy control or an innovative model of international cooperation must be developed if an effective system or mechanism of international control is to be achieved. The conflict of national interests between different countries can be seen in several aspects. First, the territorial claims of neighboring countries may create difficulties for any country chasing and catching pirates across the maritime boundary of another country. In order to enforce a territorial claim, a country would be reluctant to allow the navy or military force of another country to enter its territorial waters. The situation in the South China Sea gets even more complex due to the overlapping sovereignty and jurisdiction claims. Although arguably the relevant provisions of the UNCLOS may allow the warship of one country to chase pirates from the high seas into the territorial waters of another country, the exercise of such a “right” may be very difficult because of the difficulties in identifying a pirate ship or a ship hijacked by pirates and also due to any conflict with the sovereign claims of the relevant coastal state. Second, due to national security consideration, a country is always suspicious of the presence of another country’s navy near the former’s claimed territorial waters. Similarly, a country is often suspicious of the deployment of another country’s military force. Given the complex situation in the South China Sea, to achieve maritime security cooperation in this region requires that the relevant states work hard to reach consensus and build up mutual confidence, and eliminate the concern that maritime cooperation will affect the claim of sovereign right. In addition, the claimant states of the South China Sea should enhance cooperation through the international organizations in this region, such as IMO, ASEAN, to deepen the mutual understanding and confidence, eventually pave the way for maritime security cooperation. Information exchanging and sharing is very important in terms of security cooperation under the circumstance of overlapping claims of sovereign right and jurisdiction in the South China Sea. Information sharing includes setting up a 32 Ibid.

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database on maritime security in the South China Sea for all the relevant states to access, and building up a mechanism of intelligence information exchange. Information exchange and sharing should depend not only upon the government, but also on the private sectors and research agencies. Piracy and maritime terrorism to some extend attribute to delays in economic and social development in Southeast Asia. The claimant countries of the South China Sea should adopt effective measures to promote economic and social development, with the aim of eliminating threats to security. In addition, modern technology should be used to enhance maritime cooperation considering the unpredictability of piracy and terrorism. In conclusion, the increasing development of maritime trade in Asia requires a stable maritime security in this region. However, maritime security in the South China Sea is a complex and difficult topic for the international community, taking into consideration of the intricate situation in this area. Regional maritime security cooperation can only be achieved when it addresses these issues through a diversified trajectory combined with first-track political dialogue and second-track efforts, eventually contribute to the prosperous development of maritime trade in Asia.

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Chapter 4

Maritime Security Cooperation in the South China Sea Region Andrew S. ERICKSON

Maritime Security Challenges in Southeast Asia It is well known that the greater South China Sea region confronts significant maritime security challenges, many partially linked to the region’s continued economic growth. Recent trends in non-state threats including terrorism, piracy, smuggling, and the targeting of critical infrastructure have led some experts to argue that sub-state threats have truly combined to form a new challenge to international maritime commerce and security. While there are a variety of views on these critical issues both within and outside the region, and economic development and political consolidation and reform (with the attendant issues of “territorial sovereignty, illegal seaborne population movements, arms trafficking to and by separatist rebels… and environmental pollution”) remain clear priorities for many states in the region, there is clearly an urgent need to fight rising terrorism and other security threats. Maintaining maritime security, and giving clear evidence of this security to the various entities and market forces that regulate the global

 The views expressed in this study are solely those of the author as a private individual. This study is based only on publicly available sources and does not represent the official position or analysis of the U.S. Navy or any other organization of the U.S. Government.   For a useful background, see Brian Nichiporuk, Clifford Grammich, Angel Rabasa, and Julie DaVanzo, “Demographics and Security in Maritime Southeast Asia”, Georgetown Journal of International Affairs, Winter/Spring (2006).   For U.S. understanding concerning the importance of this issue, see Admiral William J. Fallon, United States Navy, Commander, U.S. Pacific Command, Remarks at 4th Annual Shangri La Dialogue, “Enhancing Maritime Security Cooperation”, June 5, 2005, http:// www.pacom.mil/speeches/sst2005/050606-emsi-shangrila.shtml (accessed July 1, 2009).  Evelyn Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, in Jonathan D. Pollack, ed., Asia Eyes America: Regional Perspectives on U.S. Asia-Pacific Strategy in the Twenty-First Century, Newport, R.I., Naval War College Press, 2007, p. 206.

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economy, is important for the wellbeing of the region’s people, 60 percent of whom live in or rely economically on maritime zones. Maritime security is also important because of Southeast Asia’s vital role as both a source of and a conduit for international trade and energy supply. Roughly one third of world trade transits the Strait of Malacca annually. This includes more than 50,000 vessels, twice the number that pass through the Suez Canal by some estimates and many times that which pass through the Panama Canal. It includes 11.7 million barrels per day (bbl/d) of oil. Eighty percent of Chinese crude oil imports, for instance, including virtually all of China’s imports from the Middle East and Africa, flow through the Strait of Malacca. According to the U.S. Energy Information Agency, if an oil spill, piracy, or terrorism closed the 1.5 mile wide Strait, “nearly half of the world’s fleet would be required to sail further, generating a substantial increase in the requirement for vessel capacity. … Closure of the Strait of Malacca would immediately raise freight rates worldwide.”10 Roughly three-quarters of annual world oil and natural gas trade transits the South China Sea, which, at 3.5 million square kilometers, is the world’s sixth largest body of water.11 The South China Sea handles an annual oil flow three times that of the Suez Canal and 15 times that of the Panama Canal. By 2020, increasing regional energy demand is expected to double its oil flow figures.12 The South China Sea is a vital transport corridor for liquefied natural gas (LNG), carrying two-thirds of the world’s current LNG trade.13 While Japan and South

  John Bradford, “Growing Prospects for Maritime Security Cooperation in Southeast Asia,” Naval War College Review (Summer 2005), p. 63.   “World Oil Transit Chokepoints: Malacca”, U.S. Energy Information Administration, http://www.eia.doe.gov/cabs/World_Oil_Transit_Chokepoints/Malacca.html (accessed July 1, 2009).   Sudha Ramachandran, “Divisions Over Terror Threat in Malacca Straits”, Asia Times (June 16, 2004), www.atimes.com/atimes/Southeast_Asia/FF16Ae01.html (accessed July 1, 2009).   “World Oil Transit Chokepoints: Malacca.”   Zhang Yuncheng, “Energy Security and Sea Lanes”, in Yang Mingjie ,ed., Sea Lane Security and International Cooperation, (Beijing: Current Affairs Press, 2005), p. 118. 10  “World Oil Transit Chokepoints: Malacca.” 11  John Garofano, “China, the South China Sea, and U.S. Strategy”, in Gabriel Collins, Andrew Erickson, Lyle Goldstein, and William Murray, China’s Energy Strategy: Implications for Beijing’s Maritime Policies (Annapolis, M.D.: Naval Institute Press, 2008). 12 Ibid. 13  Zhang Yuncheng, “Energy Security and Sea Lanes”, p. 107.

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Korea are East Asia’s primary LNG users,14 LNG transport security is also of great interest to China, which commenced maritime imports in May 2006. The South China Sea represents a critical source of seaborne energy for China, which receives nearly 90 percent of overseas-sourced oil (as compared to roughly 75 percent for Japan) and many trading goods through this major body of water.15 One half of the world’s merchant fleet navigates the Sea Lines of Communication (SLOCs) of the South China Sea and waters around Indonesia.16 Of central significance to the economic interests of the U.S., its (South)east Asian trading partners, and indeed the world, is the security of mega-hubs. Five of these deep-water ports (Singapore, Hong Kong, Ningbo/Shanghai, Kaosiung, Guangzhou, and Yokohama), which can accommodate the 60-foot drafts of the largest container ships, are located in East and Southeast Asia. The world’s 20 mega-hub container ports17 send nearly 68 percent of the 5.7 million containers entering the U.S. by sea annually.18 This is part of a larger pattern in which seaborne trade, which accounts for 80 percent of all international trade,19 has increased an estimated 4.1 percent (in 2004), and 3.6 percent (in 2005 and 2006).20 For all these reasons, a variety of Asia-Pacific maritime powers, including the United States and China, are making important contributions to regional security. This chapter will review the two nations’ regional roles, existing cooperation initiatives both indigenous and applicable to the region, and the vital importance of both bilateral and multilateral efforts to ensuring future progress.

14  Japan imported 58.6 million tons of LNG in 2005, and South Korea 23.1 million tons in 2004, as compared to a smaller amount in Mainland China and Taiwan’s 5.5 million tons in that same year. See http://www.eia.doe.gov/cabs/Japan/pdf.pdf (accessed July 1, 2009); http://www.eia.doe.gov/cabs/South_Korea/NaturalGas.html (accessed July 1, 2009); http://www.eia.doe.gov/emeu/cabs/taiwan.html (accessed July 1, 2009). 15  Garofano, “China, the South China Sea, and U.S. Strategy.” 16 Ibid. 17 As of 2005, the world’s top 20 ports were, in descending order of annual tons of container traffic: Singapore, Hong Kong, Shanghai, Shenzhen, Busan, Kaohsiung, Rotterdam, Hamburg, Dubai, Los Angeles, Long Beach, Antwerp, Qingdao, Port Klang, Ningbo, Tianjin, New York/New Jersey, Guangzhou, Tanjung Pelepas, and Laem Chalang. Data from the American Association of Port Authorities, http://www.aapa-ports.org/ (accessed July 1, 2009). 18  “China Joins the U.S. in Container Security Initiative”, U.S. Customs and Border Protection, October 25, 2002, http://www.cbp.gov/xp/cgov/newsroom/news_releases/ archives/legacy/2002/102002/china_joins_csi_1025.xml (accessed July 1, 2009). 19  “Hong Kong Trails Singapore in 2005 Container Volume”, Bloomberg.com, January 16, 2006, http://www.bloomberg.com (accessed July 1, 2009). 20 UNCTAD, Review of Maritime Transport 2006, p. x.

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The U.S. and Maritime Southeast Asia As Deputy Assistant Secretary of State Eric G. John has testified, We want to see a Southeast Asia that is a partner in the promotion of democracy and human rights and an engine of economic growth; a group of nations whose varied ethnic and religious groups live together and flourish in peace; countries that cooperate fully with us in battling the evils of terrorism, proliferation, and infectious diseases; and a region in which the United States plays a positive role, in harmony with other powers.21

Former Deputy Secretary of State Robert Zoellick, in his May 2005 tour of Southeast Asia, “very effectively conveyed that Washington would not ignore the maintenance and extension of economic ties with the Southeast Asian nations.”22 Indeed, the region is presently “America’s fifth-largest export market, with two-way trade of over $136 billion in 2004 and U.S. direct investment of over $90 billion in 2003. The United States, along with Japan, is Southeast Asia’s top trading partner and investor.”23 After the EU 15, the U.S. contributed the second largest amount of ASEAN24’s foreign direct investment in 2004 (23.7 percent, over $5 billion dollars).25 Through the U.S. Agency for International Development, Washington “is the largest source of bilateral official development assistance in the ASEAN region.”26 Initiated in 2002, with a goal to involving states across the region,

21  Deputy Assistant Secretary Eric G. John, Bureau of East Asian and Pacific Affairs, “The United States and Southeast Asia: Developments, Trends, and Policy Choices”, Statement Before the House International Relations Committee, Subcommittee on Asia and the Pacific, September 2005, p. 1; Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives.” See also “Remarks by Principal Deputy Assistant Secretary of State for East Asian and Pacific Affairs Evans Revere to the Baltimore Council of Foreign Relations”, May 3, 2005. 22  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 215. 23 Ibid., p. 206. 24  For an overview of U.S.–ASEAN relations, see “The United States and the Association of Southeast Asian Nations: Thirty Years of Dialogue and Cooperation”, U.S. Department of State, Bureau of Public Affairs, July 27, 2007, www.state.gov (accessed June 30, 2009). 25  Donald E. Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, in Ashley J. Tellis and Michael Wills, eds, Strategic Asia 2006-07: Trade, Interdependence, and Security, Washington, D.C., National Bureau of Asian Research, 2006, p. 279. 26 Ibid., p. 278.

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Washington’s Enterprise for ASEAN Initiative (EAI)27 “has been highly valued.”28 During a November 2005 Asia Pacific Economic Cooperation (APEC) meeting, President Bush and seven ASEAN leaders issued a Joint Vision Statement for an ASEAN–U.S. Enhanced Partnership.29 The Enhanced Partnership is envisioned to be “comprehensive, action-oriented and forward looking, and comprising political and security cooperation, economic cooperation, and social and development cooperation.”30 In this regard, it is worth noting that nations across Southeast Asia, with the unfortunate exception of Burma, “all wish to maximize economic and technological gains from relations with the United States.”31 For a demonstration of the importance of foreign trade, and the relevance of the U.S. economy, to Southeast Asia, see Table 4.1: Table 4.1 Trade Intensity and Share of Trade with the U.S. for Selected Southeast Asian States and Administrative Regions in 200432 Economy Hong Kong Macau Malaysia Cambodia Vietnam Thailand Philippines

Trade as share of GDP (%) 376.2 161.8 221.1 140.5 140.0 136.4 102.4

Share of trade with U.S. (%) 11.0 24.0 37.1 24.6 11.0 21.3 33.8

27 EAI offers guidelines for converting consultative bilateral trade and investment framework agreements (TIFA) into more robust and rewarding binding bilateral free trade agreements (FTAs). FTAs also allow for dispute resolution mechanisms. See Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 282. 28  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 215. 29  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 284. 30  See “Joint Vision Statement for an ASEAN-U.S. Enhanced Partnership”, http:// www.state.gov/p/eap/ris/ot/57078.htm (accessed August 12, 2008). 31  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 216. 32  Data from Ashley J. Tellis and Michael Wills, eds, Strategic Asia 2006-07: Trade, Interdependence, and Security, Washington, D.C., National Bureau of Asian Research, 2006, pp. 398–9. Economies selected based on data available from this source.

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Meanwhile, “none of the [regional] states with current military strategic ties with the United States wish to diminish or downgrade these ties, while those states that do not have such ties wish to develop them to some degree.”33 Indeed, “Though the U.S. war in Iraq is generally unpopular in Southeast Asia … the impetus of congruent U.S. and Southeast Asian counter-terrorism interests has in fact strengthened and deepened U.S. defense links with its ASEAN friends and allies.”34 Washington’s “commitment to regional security35 is expressed in a robust program of bilateral and multilateral exercises and exchanges between U.S. forces in the Pacific Command and friendly and allied Southeast Asian forces.” Relevant exercises include Cobra Gold, CARAT (Cooperation Afloat Readiness and Training), and SEACAT (Southeast Asia Cooperation Against Terrorism). SEACAT specifically “promotes information sharing and multinational cooperation in maritime interception scenarios.”36 On May 23–24 2006, for instance, the navies of the U.S. Brunei, Indonesia, Malaysia, the Philippines, Singapore, and Thailand trained to search for illicit drugs and weapons aboard ships in the South China Sea.37 “Regional cooperation is already in place, and when it comes to piracy in this area, we need everybody’s help,” stated Singaporean Navy Captain Tan Yong. “SEACAT is a good opportunity for us all to exercise together.”38 As two U.S. Navy officers from PACOM elaborate,

33  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 216. 34  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 294. 35  For an overview of relevant U.S. cooperative mechanisms, see “Maritime Security in the East Asia and Pacific Region”, U.S. Department of State, Bureau of Public Affairs, April 21, 2006, www.state.gov (accessed August 3, 2008). 36  Major Victor Huang, Republic of Singapore Navy, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” Naval War College Review, Winter 2008, Vol. 61, No. 1. For more information, see the 2006 SEACAT website, www.clwp.navy. mil/seacat2006 (accessed July 1, 2009). 37  Melinda Larson, “Communication Key to SEACAT Boarding Exercises”, May 26, 2006, http://www.navy.mil/search/display.asp?story_id=23830 (accessed July 1, 2009); Commander Task Force 73 Public Affairs, “Navies Partner for Southeast Asia Maritime Security Exercise”, May 19, 2006, http://www.navy.mil/search/display.asp?story_ id=23727 (accessed July 1, 2009); Melinda Larson, “SEACAT Strengthens Maritime Bonds in Southeast Asia”, May 29, 2006, http://www.clwp.navy.mil/seacat2006/news/ SEACAT%20closing.htm (accessed November 18, 2008). For details on the previous year’s exercise, see U.S. Seventh Fleet Public Affairs, “SEACAT 2005 Training Catalyst for U.S., SE Asia Navies”, May 30, 2005, http://www.c7f.navy.mil/news/2005/may/35.htm (accessed October 11, 2008). 38  Melinda Larson, “SEACAT Fosters Exchange Between Future Naval Leaders”, www.navy.mil/search/display.asp?story_id=23773 (accessed July 1, 2009).

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USPACOM engagement strategies include Service-to-Service activities, joint and combined multilateral exercises, subject matter expert exchanges, and other training venues. Bilateral exercises are historically among the most successful exchange opportunities. Among the many that USPACOM is involved in are Exercise Balikatan in the Philippines, Pacific Fleet’s Cooperation Afloat Readiness and Training, Marine Force Pacific’s Incremental Training Exercises, and U.S. Army Pacific’s Garuda Shield with Indonesia and Keris Strike with Malaysia. USPACOM is increasingly encouraging multilateral ventures by inviting partner nations to participate in traditionally U.S.-only exercises. Cope Tiger, Red Flag, and Cobra Gold are among the most visible military-tomilitary exercises, but they represent only a fraction of the actual participation of Southeast Asian nations’ militaries in U.S. or regional exercises.39

Among Washington’s many military exchanges involving Southeast Asia, which include the Western Pacific Naval Symposium, “The U.S. International Military Education and Training (IMET) program has graduated tens of thousands of Southeast Asian students including [Indonesian] President Yudhoyono.” Finally, Washington “is also the major extra-regional defense supplier to the key ASEAN countries.”40 The U.S. is thus poised to remain a welcome influence in Southeast Asia, according to Evelyn Goh, particularly if it continually strives to address the diverse needs of nations across the region. Because Washington’s “nonimperial history suggests a more benign exercise of power …41 many Southeast Asian policymakers favor a continuation of the preponderance of perceived benign U.S. power.”42 China’s Growing Interests in the Maritime Realm and Southeast Asia As it becomes an increasingly capable, influential, and cooperative maritime power in all dimensions, China is acquiring a large, comprehensive stake in the security of the oceans. Maritime commerce, in particular, supports China’s national program of “peaceful development.” With its over four million square km of claimed sea area, 1,400 harbors, and a tremendous number of cargo ships, the world’s largest developing nation generated 10 percent of its GDP (US$270 billion) from 39  John D. Wheeler and Herschel Weinstock, “The Enduring Value of Military-toMilitary Cooperation in Southeast Asia”, Joint Forces Quarterly, 47: 4th quarter (2007), p. 67. 40  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 294. 41  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 202. 42 Ibid., p. 209.

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maritime industries in 2006, up 14 percent from 2005.43 Estimates have projected that China’s maritime GDP will reach one trillion by 2020.44 With 1,700 ships, China’s merchant marine is second only to Panama’s in size.45 A recent article by People’s Liberation Army (PLA) Navy Senior Captain Xu Qi further underscores China’s growing global maritime interests, stating that today “[China’s] open ocean transport routes pass through every continent and every ocean [and] through each important international strait to over six hundred ports in over 150 nations and [administrative] regions.”46 The insightful, popular government-inspired study 大 国崛起 (The Rise of Great Powers) suggests that economic development, fueled by foreign trade and safeguarded by a sustainable and non-provocative degree of naval power, drives national development. There appears to be a vigorous domestic debate today concerning China’s maritime history, orientation, and ideology as the nation increasingly relies on the seas even while working to preserve elements of its longstanding maritime cultural heritage.47 The need to import key natural resources such oil, natural gas, and iron ore gives China a major stake in maritime security. China imports tremendous amounts of raw inputs to fuel its dynamic industrially intensive economy. The bulk of China’s natural resource imports come by sea from places as far afield as Brazil and Saudi Arabia, making sea lane security a major policy concern in China. China’s strategic thinkers apparently perceive maritime energy security to be increasingly vital. Their nation, already the world’s second largest oil consumer, is on track to become the world’s second largest net oil importer by 2015. Since 1993, when Beijing became a net crude oil importer, demand has skyrocketed. In 2005–06, for example, year on year import demand growth was 14.5 percent. Despite extensive exploration of offshore reserves to replace dwindling onshore reservoirs, and a new oil pipeline from Kazakhstan to Xinjiang province, China imports 45 percent of its oil and receives 85 percent of it by sea. China’s rising motor vehicle ownership, its reported plans to double the size of its road network, and its domestic firms’ huge fixed investments in steel, petrochemicals, and other 43  “10% Of GDP Now Comes From Sea, Says Report”, Chinadaily.com.cn, April 10, 2007. 44  Xu Qi, “Maritime Geostrategy and the Development of the Chinese Navy in the Early Twenty-first Century”, China Military Science, 17: 4 (2004), pp. 75–81, in Chinese; trans. Andrew Erickson and Lyle Goldstein, Naval War College Review 59: 4 (Autumn 2006). 45  See www.nationmaster.com (accessed July 1, 2009). Lyle J. Goldstein, “China: A New Maritime Partner?”, U.S. Naval Institute Proceedings, August 2007, p. 27. 46  Xu, “Maritime Geostrategy and the Development of the Chinese Navy in the Early Twenty-first Century”. 47  For more information on efforts to protect China’s maritime cultural heritage, see Ren Huaifeng and Zhu Huayou, National Institute for South China Sea Studies, “Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation”, paper presented at Conference on New Development of the Law of the Sea and China, Xiamen, March 9–12, 2005.

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energy-intensive industries could drive oil imports to as much as 60 percent of total oil demand by 2016–20. If import demand grows at 6 percent per year, China’s oil import needs could increase from roughly 3.2 million bbl/day at present to 5.3 million bbl/day in this timeframe. Envisioned future pipelines, of varying logistical and economic viability, seem unlikely to substantially reduce this dependence on sea lane security. Indeed, according to Senior Captain Xu, “By 2020… It may be[come] necessary to import three-quarters of [China’s] oil from overseas.”48 LNG use promises to ameliorate China’s serious air pollution problems, which some researchers believe are already causing as much as US$200 billion annually in economic damage. In the economically vibrant southeast coastal region, which is emerging as China’s main LNG demand center, seaborne imports of liquefied natural gas (LNG) are already proving economically viable and are likely to grow rapidly in coming years. Given energy policy reform and Russia’s construction of promised gas pipelines to China, Chinese LNG demand could reach 20 million tons/year by 2016. By 2020, China may be importing more than 30 million tons per year,49 much of it by sea. Shipbuilding is emerging as a “strategic industry” in need of “special oversight and support.”50 China launched over 13 million tons of new ships in 2006 and (assuming continuation of recent trends) 51 will produce 20 million tons annually by 2010.52 Beijing reportedly aims to become the world’s largest shipbuilder by 2015, with 24 million tons of production capacity (35 percent of global capacity). However uneven in its pace and nature of development, China’s large shipbuilding sector will support broad-based maritime and naval development. For all these reasons, Beijing seems poised to assume an even greater stake in the security of the global maritime commons. Encouragingly, awareness of the

48  Xu, “Maritime Geostrategy and the Development of the Chinese Navy in the Early Twenty-first Century”. 49  Scott C. Roberts, “China’s LNG Program Turns a Corner”, Cambridge Energy Research Associates, http://www.cera.com/aspx/cda/client/report/reportpreview. aspx?CID=7328&KID= (accessed July 1, 2009). 50  “China to Limit Foreign Investment in Shipyards”, Shanghai Daily, September 19, 2006, http://www.shanghaidaily.com/article/?id=292385&type=business (accessed August 24, 2008). 51 The recent drop-off in global ship construction and transport demand may render some of the more optimistic projections cited in this chapter unrealistic, but the overall development of China’s ship building and shipping industries will continue and they remain poised to assume increasing prominence internationally. 52  Derived from new construction and order book statistics in Lloyd’s Register— Fairplay, Ltd., Register of Ships, Sea—web database, http://www.sea-web.com (accessed July 1, 2009); Andrew S. Erickson and Gabriel B. Collins, “China’s Maritime Evolution: Military and Commercial Factors”, Pacific Focus (Fall 2007).

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importance of maritime anti-terrorism appears to be increasing in China.53 Chinese attention to non-traditional security threats appears to have prompted a variety of unprecedented maritime safety exercises.54 Emerging Maritime Cooperation in Southeast Asia As explained above, many regional “stakeholders,” as well as the U.S. and China, have a strong interest in the continued security of Southeast Asia and its sea lanes. Each nation will have its own interests and priorities, but it will be important to reach a common understanding concerning the need to ensure the collective good of maritime security more broadly. One issue on which all parties can already agree is that the multiple, complex security challenges that confront the region call for cooperative security measures that are no less sophisticated and diverse than the threats that they are designed to address. An appropriate philosophy for building on this consensus might be termed, “mutual interests, mutual respect, mutual consultation, and mutual responsibility.” The importance of maritime security in Southeast Asia, therefore, is clear. The question then becomes how to achieve this pressing, multifaceted objective. Such non-traditional security threats as piracy, former U.S. Chief of Naval Operations Admiral Michael Mullen has emphasized, “… can no longer be viewed as someone else’s problem. [Piracy] is a global threat to security because of its deepening ties to international criminal networks, smuggling of hazardous cargoes, and disruption of vital commerce.”55 As Department of Homeland Security Secretary Michael Chertoff has stated from the U.S. perspective, “we fear the intrusion of terrorist weapons from a nation not our own [but] it is only in building strong alliances with foreign countries that we can prevent such an attack from occurring.”56 53  See, for example, Zhang Lina, “Maritime Anti-Terrorism and Recent Developments in the International Marine Transportation Security System”, China Water Transport, 1 (2007) [in Chinese], http://scholar.ilib.cn/A-zgsy-xsb200701111.html (accessed July 1, 2009); Wang Fei, “The Policies of U.S. ‘Port Security’ in the Age of Anti-Terrorism and Information Revolution Safety Measures”, Informatization Construction, 4 (2006) [in Chinese], http://scholar.ilib.cn/A-xxhjs200406018.html (accessed July 1, 2009); Yu Chengguo and Li Daze, “Thoughts on Strengthening Maritime Security Counter-Terrorism Measures”, China Navigation, 2 (2003) [in Chinese]. 54  See, for example, Yuan Xuan, “China’s First Anti-terrorism Drill Involving an Oil Tanker with a Loading Capacity of 300,000 Tons—Launched Jointly by the China Maritime Safety Administration and COSCO”, Maritime China, 7 (2004) [in Chinese], http://scholar. ilib.cn/A-zgyyhwgg200407005.html (accessed July 1, 2009). 55 Admiral Michael Mullen, “Remarks as Delivered for the 17th International Seapower Symposium”, Naval War College, Newport, R.I., September 21, 2005, http:// www.navy.mil/navydata/cno/mullen/speeches/mullen050921.txt (accessed July 1, 2009). 56  Dannielle Blumenthal, “CBP Kicks Off Secure Freight Initiative”, U.S. Customs & Border Protection Today, April/May (2007), http://www.cbp.gov/xp/CustomsToday/2007/

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Encouragingly, a variety of agreements have already been formed to safeguard various aspects of maritime security in the region—thereby suggesting widespread recognition of the need for action. The Malacca Straits Patrol Network The Malacca Strait littoral states are critically dependent on maritime security. Eighty percent of Malaysia’s trade transits the Strait.57 Malaysia’s foremost law enforcement official emphasized in June 2007 that maritime terrorism is a “‘real and possible threat’ that could ‘devastate Southeast Asia’s economic environment and severely disrupt trade.’”58 Najib Razak, Malaysia’s deputy prime minister, “has called for greater vigilance and intelligence sharing to combat piracy and prevent terrorism along the Malacca Strait.”59 Singapore’s economy is even more dependent on the “free flow of shipping through the region” than Malaysia or Indonesia.60 The Malacca Straits Patrol Network encompasses two initiatives among the littoral states of the Malacca Straits, MALSINDO and “Eyes in the Sky” (EiS).61 In July 2004, the MALSINDO (Malaysia/Singapore/Indonesia) Trilateral Coordinated Patrols were initiated in the Strait of Malacca based on cooperation between Indonesia, Malaysia, and Singapore.62 The goal is to better utilize the littoral states’ respective resources in order to combat piracy,63 terrorism, and other criminal actions. According to Major Victor Huang of the Republic of Singapore Navy, A conceptually linked but officially unrelated boost to the initiative’s effectiveness was Project SURPIC, a technical system that allows information sharing between Singapore and Indonesian command and control (C2) centers in order to achieve

apr_may/secure.xml (accessed July 1, 2009). 57 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 58 Ibid. 59 Ibid. 60 Ibid. 61  For a Chinese perspective on Malacca Strait security issues, see Yu Kun, “Who Will Manage the Security of the Malacca Strait?” The Contemporary World, 5 (2006) [in Chinese]. 62  “Launch of Trilateral Coordinated Patrols—MALSINDO Malacca Straits Coordinated Patrol”, Singapore Ministry of National Defense, July 20, 2004, http://www. mindef.gov.sg/imindef/news_and_events/nr/2004/jul/20jul04_nr.html (accessed July 1, 2009). 63  For an argument that the threats of maritime terrorism and piracy have been exaggerated, see Joshua H. Ho, “The Security of Sea Lanes in Southeast Asia”, Asian Survey, 46: 4, July/August (2006), pp. 558–74.

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As Indonesian Navy Chief of Staff Admiral Bernard Kent Sondakh has emphasized, MALSINDO involves “coordinated,” not “joint” patrols, meaning that nations do not normally subordinate their forces to a supra-national command on the basis of a defense agreement or introduce them into each other’s territorial waters.65 Accordingly, “MALSINDO … excludes other countries such as the United States …”66 Moreover, even among the participating littoral states, “Due to the sensitivity of the littorals over the issue of ‘sovereignty’, MALSINDO does not provide for ‘hot pursuit.’”67 A new initiative for the original MALSINDO states, this time in partnership with Thailand, emerged following a proposal by Malaysia’s deputy prime minister and defense minister, Najib Tun Razak, at the Shangri La Dialogue in June 2005.68 The four parties began EiS maritime air patrols in September 2005 out of Kuala Lumpur, Malaysia. While these have met with considerable media attention,69however, researchers have differed concerning the extent to which EiS has produced tangible results.70 In an effort to address ongoing security concerns while upholding national sovereignty, the Indonesian Navy’s chief of staff of has declared, “Other countries that would like to help in making Malacca Strait safe, would be highly appreciated if they are willing to share by providing intelligence information, weapon equipment, 64 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 65 Admiral Bernard Kent Sondakh, Chief of Staff Indonesian Navy, “National Sovereignty and Security in the Strait of Malacca”, paper presented to the Conference held by Maritime Institute of Malaysia (MIMA) in Kuala Lumpur, Malaysia, October 12, 2004, p. 11, www.mima.gov.my/mima/htmls/conferences/som04/papers/sondakh.pdf (accessed May 17, 2008). 66  Zhang Xuegang, “Southeast Asia and Energy: Gateway to Stability”, China Security, 3: 2, Spring (2007), http://www.wsichina.org/cs6_2.pdf (accessed July 1, 2009). 67  Gurpreet S. Khurana, “Cooperation Among Maritime Security Forces: Imperatives for India and Southeast Asia”, Strategic Analysis, 29: 2, April–June (2005), p. 298. 68  Graham Gerard Ong and Joshua Ho, “Maritime Air Patrols: The New Weapon Against Piracy in the Malacca Straits”, IDSS Commentary, 13 October 2005, www.idss. edu.sg/publications/Perspective/IDSS702005.pdf (accessed July 1, 2009). 69  “M’sia, Thailand to Adopt Malsindo Module—Mohd Anwar”, Malaysia National News Agency, August 25, 2005, http://www.bernama.com/bernama/v3/news.php?id=152155 (accessed July 1, 2009); Ocean Policy Research Foundation, Monthly Report (September 2005), p. 1. 70 Carolin Liss, “The Privatisation of Maritime Security in Southeast Asia: Between a Rock and a Hard Place?”, Asia Research Centre, Murdoch University, Working Paper No. 141, February 2007, http://wwwarc.murdoch.edu.au/wp/wp141.pdf (accessed July 1, 2009).

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navigational buoys/sea traffic sign, training, etc.”71 Indeed, in July 2005 the three littoral states “request[ed] equipment, training, and intelligence assistance from other countries, including the United States, Japan, and Australia.”72 Here, Japan’s substantial role in providing such assistance merits special recognition. Following policy adjustments to account for local sensitivities, Tokyo has undertaken a variety of measures in support of the efforts of states surrounding the Malacca Strait to increase security there,73 including the installation of navigational aids in the Strait.74 Japan’s Coast Guard, for instance, has engaged in joint training exercises with six nations Southeast Asia. All coastal states have received Japanese training and equipment.75 Tokyo has funded an anti-piracy center in Singapore.76 According to Sam Bateman, Japan has also: hosted Port Security Seminars in Southeast Asian countries to assist implementation of the ISPS Code. In June 2006, Japan donated three patrol boats to Indonesia to help fight terrorism and piracy, after earlier donating a training vessel to the Malaysian Maritime Enforcement Agency (MMEA). At a higher political level, Japan has held recent talks with ASEAN on cooperation against terrorism. These talks were expected to focus on how Japan can help ASEAN to exchange information on terrorism, tighten immigration controls, strengthen maritime patrols and improve investigation technology.77

71 Admiral Bernard Kent Sondakh, Chief of Staff, Indonesian Navy, “National Sovereignty and Security in the Strait of Malacca”, paper presented to the Conference held by Maritime Institute of Malaysia (MIMA) in Kuala Lumpur, Malaysia, October 12, 2004, pp. 11–12, www.mima.gov.my/mima/htmls/conferences/som04/papers/sondakh.pdf (accessed May 17, 2008). 72  Goh, “Southeast Asian Reactions to America’s New Strategic Imperatives”, p. 206. 73  For a Chinese perspective on Japan’s role in maritime security affairs in Southeast Asia, see Gong Yingchun, “Japan and the Construction of Multilateral Marine Security Mechanism”, Contemporary East Asia, 7 (2006) [in Chinese]. 74 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 75  John F. Bradford, “Japanese Anti-Piracy Initiatives in Southeast Asia: Policy Formulation and the Coastal State Responses”, Contemporary Southeast Asia, 26 (2004). 76 Ocean Policy Research Foundation, Monthly Report, p. 3. 77  Sam Bateman, “International Cooperation in Piracy Prevention”, in Werner Vom Busch and Tobias Rettig, eds, Covering Maritime Piracy in Southeast Asia, Media Programme Asia, Konrad Adenauer Foundation, Singapore, Konrad-Adenauer-Stiftung, 2006, p. 67.

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U.S. Military and Economic Contributions to Southeast Asia The U.S., for its part, has worked to increase regional security while respecting the views and interests of states in the region. Washington has sought to develop robust economic and military partnerships with Indonesia, Malaysia, Singapore, and other important regional nations. Indonesia The tragic December 26, 2004 tsunami gave the U.S. an historic opportunity to restore good relations with Indonesia, a regional power of critical importance with over 17,000 islands and the world’s fourth largest population.78 Jakarta has requested U.S. “military assistance in the form of training and support in order to build its enforcement capacity.”79 In February 2005, the U.S. and Indonesia resumed International Military Education and Training (IMET). This was cemented with a visit by U.S. Secretary of Defense Donald Rumsfeld in June. In November of that year, Secretary of State Condoleezza Rice “waived all remaining legislative restrictions on U.S. military assistance to Indonesia,”80 thereby lifting a five-year ban on arms sales to Jakarta, and permitting defense exports and Foreign Military Financing (FMF).81 In March 2006, during a visit to Jakarta, Secretary Rice highlighted “‘the growing strategic partnership and strategic relationship of the United States and Indonesia.’”82 That month, U.S. State Department “posted formal notice permitting the sale of lethal military equipment to Indonesia on a case-by-case basis.”83 Following these measures, then Commander of the U.S. Pacific Command William J. Fallon 78  Bruce A. Elleman, Waves of Hope: The U.S. Navy’s Response to the Tsunami in Northern Indonesia, Newport, R.I., Naval War College Press, February 2007; Sumathy Permal, “U.S.–Indonesia Military Ties: An Observation”, http://www.mima.gov.my/mima/ htmls/papers/pdf/sumathy/sumathy-us_indon_military_ties.pdf (accessed October 1, 2008); Admiral Gary Roughead, Commander, U.S. Pacific Fleet, “Deployment of Hospital Ship ‘Mercy’ and Current Pacific Command Operations”, Foreign Press Center Briefing, Washington, D.C., May 10, 2006, http://2002-2009-fpc.state.gov/66063.htm (accessed July 1, 2009). 79 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 80  U.S. Department of State Office of the Spokesman, “Indonesia-Military Assistance”, January 4, 2006, http://www.state.gov?r/pa/prs/2006/58686.htm (accessed March 30, 2008); Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 296. 81  Michael Vatikiotis, “Washington’s Turnaround on Indonesia”, International Herald Tribune, January 1, 2006, http://www.iht.com/articles/2006/01/06/opinion/edvatik. php?page=1 (accessed July 1, 2009). 82  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 297. 83  Federal Register 71: 60 (13 March 2006), 15797; Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 296.

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recommended a “‘rapid, concerted infusion’” of U.S. military aid to Indonesia,84 a call that was echoed in the U.S. administration’s FY 2007 foreign operations budget request.85 In 2006, the U.S. Pacific Command invited the Indonesian Army Special Forces (KOPASSUS) to participate in its annual Pacific Area Special Operations Conference (PASOC).86 Indonesia has also participated in the annual CARAT exercises. 87 “From a military point of view,” according to Donald Weatherbee, the restoration of normal relations allows the United States to again contribute to Indonesia’s military modernization and capacity building, aid that will better allow Indonesia to support common strategic interests in counterterrorism and maritime security. These changes will also enhance Indonesia’s ability to work with Singapore, Malaysia, and Thailand in their joint security presence in the Strait of Malacca. With access to U.S. assistance and equipment reopened, the Indonesian military’s capacity for interoperability with other U.S. friends and allies in the ASEAN region will be increased. The reintegration of Indonesia into the PACOM-centered security nexus in Southeast Asia also is expected to give further incentives to the Indonesian military for reform and professionalization.88

In a larger sense, The United States views Indonesia’s position in Southeast Asia as strategically unique—given that Indonesia contains nearly half of Southeast Asia’s population, has the largest Muslim population in the world, is located on critical Asian sea lane choke points, is a key ally in the war on terrorism, and is a re-emerging leader of ASEAN.89 … As important as normalization is for the military, the greatest significance is the new political quality that normalization lends to the 84 Admiral William J. Fallon, “Statement to the U.S. Senate Armed Services Committee on Pacific Command Posture”, March 7, 2006, http://www.armed-services. senate.gov/statement.2006/March/Fallon%2003-07-06.pdf (accessed February 2, 2008); Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 296. 85 U.S. Department of State, Congressional Budget Justification, Foreign Operations, Fiscal Year 2007, http://www.state.gov/documents/organization/60643.pdf (accessed July 1, 2009); Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 296. 86  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 297. 87 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 88  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 297. 89 Ibid., p. 296.

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Maritime Security in the South China Sea bilateral relationship. … Given Indonesia’s critical role in ASEAN, the U.S.Indonesia “strategic partnership” is a necessary key ingredient to the ASEANU.S. Enhanced Partnership.90

Malaysia  The U.S. and Malaysia enjoy robust trade relations. Kuala Lumpur, which already has Trade and Investment Framework Agreement (TIFA) status, initiated further negotiations with Washington in the beginning of 2006. As for maritime security, between 2004 and 2006 Malaysia reorganized its five maritime agencies into the Malaysian Maritime Enforcement Agency (MMEA).91 The MMEA “will buy new vessels, refurbish many of its seventy-plus existing craft, and acquire six helicopters for surveillance, enforcement, and search-and-rescue duties.”92 Washington stands willing and ready to provide assistance should Kuala Lumpur deem it to be helpful. Following a meeting with his Malaysian counterpart in July 2006, then-Chief of Naval Operations Admiral Michael Mullen stated, “As we are developing future capabilities, certainly we are willing to share those with the Malaysian navy …”93 Singapore  In May 2003, Singapore became the first Southeast Asian nation to conclude an FTA with the U.S. This robust “‘WTO plus’” agreement, which entered force on January 1, 2004, has been credited with increasing bilateral trade by 10 percent in 2004 and 2005.94 As a Major Security Cooperation Partner of Washington, the dynamic city state has concurrently strengthened military relations with Washington by constructing a naval base capable of accepting U.S. aircraft carriers and hosting a naval logistics command center. Of its own initiative, in 2003 Singapore formed a Maritime and Port Security Working Group, involving its maritime and port authority, police coast guard, and navy, to implement port and shipping security regulations.95 Singapore’s vessel traffic information system employs sophisticated coastal radars to track as many as 5,000 vessels and allows both real time and historical analysis.96 In addition to hosting ReCAAP’s

90 Ibid., p. 297. 91 Hon Dato’ Sri Najib Tun Abdul Razak, Deputy Prime Minister, Malaysia, “The Security of the Straits of Malacca and its Implications to the South East Asia Regional Security”, Korea National Defense University, March 13, 2007, http://www.kln.gov.my/ ?m_id=25&vid=432 (accessed July 1, 2009). 92 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 93  “U.S. Committed To Security in Malacca Strait Says Top Navy Official”, Agence France-Presse, July 17, 2006. 94  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 285. 95  For an overview of Singapore’s complex maritime security environment, see Catherine Zara Raymond, “Maritime Security: The Singaporean Experience”, Institute of Defense and Strategic Studies, Singapore, draft paper, December 2005. 96 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?”

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Information Sharing Center, Singapore announced on March 27, 2007: that it would construct a command and control center to “house the Singapore Maritime Security Centre (SMSC), an Information Fusion Centre (IFC), and a Multinational Operations and Exercise Centre (MOEC).” The IFC will facilitate information fusion and sharing between “participating militaries and agencies,” and the MOEC will provide the infrastructure for multinational exercises, maritime security operations, and humanitarian operations and disaster relief should the need arise. In essence, Singapore is offering a readymade capability that can be leveraged for regional cooperation at any time. This will allow a rapid operationalization of cooperation initiatives should the political environment be conducive.97

Singapore also holds the annual Shangri-La Dialogue, a useful meeting of defense ministers.98 Other Southeast Asian Partners The U.S. and the Philippines have long had close military and economic ties. On the bilateral trade front, Manila enjoys TIFA status. Washington accorded the Philippines major non-NATO ally status in 2003. As part of their formal defense alliance relationship, Manila and Washington have also concluded a Mutual Defense Agreement and a Visiting Forces Agreement. During the two previous years, U.S. troops helped Manila fight Mindanao-based Abu Sayyaf separatists in the joint Balikatan exercises. As part of its formal defense alliance relationship with the U.S., Thailand was recognized by the U.S. as a major non-NATO ally in 2003.99 The two nations’ longtime security discussions, initiated in 1993, culminated in a bilateral “‘strategic dialogue’” in November 2005.100 Vietnam has also bolstered its security ties with the U.S., sending representatives to IMET for the first time in 2006.101

97 Ibid. See also “New Maritime Command and Control Centre at Changi”, Ministry of Defense, Singapore, March 27, 2007, www.mindef.gov.sg/imindef/.../2007/.../27mar07_ nr.html (accessed July 1, 2009); “Speech by Mr. Yeo Cheow Tong, Minister for Transport, at the ReCAAP IFN Signing Ceremony, April 20, 2006, Garden Suite, Oriental Hotel,” http://app.mot.gov.sg/data/s_06_04_20.htm (accessed). 98  For additional information concerning Singapore’s maritime security efforts, see the “Opening Address by Mr. Yeo Cheow Tong, Minister for Transport, at the International Maritime and Port Security Conference, January 21, 2003, Shangri-La Hotel, Singapore,” http://app.mot.gov.sg/data/s_03_01_21.html. 99  For more information concerning Thailand’s contribution to regional maritime security, see Chusak Chupaitoon, “Thailand’s Contribution to Regional Security.” 100  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 294. 101 Ibid., pp. 295–6.

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Regional Cooperation Against Piracy and Armed Robbery (ReCAAP) In November 2004, the Association of Southeast Asian Nations (ASEAN) plus Japan (which originally introduced the initiative), China, South Korea, Bangladesh, India, and Sri Lanka concluded a Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).102 This “indigenous pan-Asian initiative,” which entered into force on September 4, 2006, is “the first regional government-to-government agreement to promote and enhance cooperation against piracy and armed robbery at sea in Asia.”103 Now 16members-strong,104 ReCAAP has resulted in the establishment of an Information Sharing Center (ISC) in Singapore to “maintain databases, conduct analysis, and act as an information clearinghouse.”105 Moreover, the “agreement does not ‘oblige members to take any specific action other than sharing information that they deem pertinent to imminent pirate attacks,’”106 although they “agree to cooperate in capacity building, legal assistance, and extradition.”107 The Proliferation Security Initiative (PSI) Another constructive measure, which has recently been applied to East Asia, is the multilateral Proliferation Security Initiative (PSI). PSI is motivated solely by concerns about proliferation and does not represent an effort to compromise the national interests of peaceful states that abide by the norms of the international system. Rather, supported by over 60 countries, PSI is “a set of partnerships that establishes the basis for cooperation on specific activities, when the need arises. … PSI interdiction training exercises and other operational efforts help states work together in a more cooperative, coordinated, and effective manner to stop, search, and seize [proliferation-related] shipments.”108 102  Bradford, Naval War College Review, p. 69. See also Singapore Ministry of Foreign Affairs, “Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP)”, press release, September 4, 2006, http://app. mfa.gov.sg/pr/read_content.asp?View,5230,(accessed July 1, 2009) 103  Singapore Ministry of Foreign Affairs, “ReCAAP”; Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?”. 104  “About ReCAAP ISC,” official website, http://www.recaap.org/about/about1_ 2.html (accessed June 30, 2009). 105 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 106  Liss, “The Privatisation of Maritime Security in Southeast Asia: Between a Rock and a Hard Place?” 107 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 108  “The Proliferation Security Initiative (PSI)”, U.S. State Department Bureau of Nonproliferation, Washington, D.C., May 26, 2005, http://www.state.gov/t/np/rls/ other/46858.htm (accessed January 17, 2008).

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PSI “is intended to operate in a manner ‘consistent with national legal authorities and relevant international law and frameworks.’”109 PSI supports the January 1992 United Nations (UN) Security Council Presidential Statement that proliferation of weapons of mass destruction (WMD) threatens international peace and security, and underlines the need for member states of the UN to prevent proliferation. As Major Victor Huang of the Republic of Singapore Navy notes, “the spirit of PSI was emphatically affirmed by the passage on 28 April 2004 of UN Security Council Resolution (UNSCR) 1540, requiring all states to take measures to prevent proliferation.”110 According to Admiral Michael Mullen, “Secretary General of the United Nations Kofi Annan applauded the work of all countries active in PSI and has pointed to this initiative as an example of the type of cooperation necessary to counter today’s threats [with] nations acting in their own interest, but also for the common good.”111 PSI is also consistent with recent G-8 and EU statements calling for more coherent and concerted efforts to prevent the proliferation of WMD, their delivery systems, and related materials. Singapore hosted East Asia’s first PSI exercise, Deep Sabre, in August 2005. Conducted in the South China Sea, Deep Sabre advanced PSI participating nations’ operational capabilities by integrating an at-sea boarding (conducted by a combination of military and law enforcement forces) with a port search operation (conducted primarily by law enforcement). From August 5–19, 2,000 personnel from military, coastguard, customs and other agencies of 13 PSI countries participated.112 Other regional nations were invited to observe. Singapore’s Ministry of Defense assessed that Deep Sabre “served to validate the multinational and inter-agency systems and procedures that have been put in place to detect and interdict illegal shipments of WMD-related materials.”113 As Deep Sabre demonstrated, specifically targeted exercises can provide an excellent opportunity for positive and productive cooperation for the promotion of mutual interests.

109  Office of the Press Secretary, White House, “Proliferation Security Initiative: Statement of Interdiction Principles”, www.state.gov/t/isn/rls/fs/23764.htm (accessed April 4, 2008); Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 110 Huang, “Building Maritime Security in Southeast Asia: Outsiders Not Welcome?” 111  Mullen, “Remarks as Delivered for the 17th International Seapower Symposium.”, 112  Participating nations included Australia, Canada, France, Germany, Greece, Italy, Japan, the Netherlands, New Zealand, Russia, Singapore, the U.K., and the U.S. “Singapore Hosts Proliferation Security Initiative Exercise”, Singapore Ministry of National Defense, August 15, 2005, http://www.mindef.gov.sg/imindef/news_and_events/nr/2005/aug/ 15aug05_nr2.html (accessed July 1, 2009). 113  “Exercise Deep Sabre Successfully Conducted”, Singapore Ministry of National Defense, August 18, 2005, http://www.mindef.gov.sg/imindef/news_and_events/nr/2005/ aug/18aug05_nr.html (accessed July 1, 2009).

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The Container Security Initiative (CSI) Another important security measure with particular significance for Asia, which boasts 13 of the world’s top 20 container shipping ports,114 is the Container Security Initiative (CSI), introduced by the U.S. in January 2002. Containerized cargo security’s importance for global economic development and stability is readily apparent. One hundred and eight million cargo containers transport early 90 percent of global trade annually. Ships carrying as many as 8,000 containers transport nearly half of incoming trade (by value), 40 percent overall, to the U.S.’s 360 commercial ports; this percentage is even higher in Japan, Singapore, and the U.K. U.S. ports received 26,000 containers per day, for a total of 9.6 million, in fiscal year 2004;115 seaborne containers also transported one-quarter of U.S. imports ($423 billion) and one-sixth of U.S. exports ($139 billion).116 In 2005, 16 million shipping containers arrived in U.S. ports.117 That fiscal year, U.S. Customs and Border Protection processed 20 million sea, truck, and rail containers entering the U.S. and 29 million of its trade entries.118 Seaborne container transport is also the lifeblood of China’s economy. China had US$974 billion in exports in 2006, 21 percent (US$250 billion) of which went to the U.S. and 9.5 percent of which went to Japan. China imported US$777.9 billion worth of goods in 2006.119 In all cases, logistical and commercial imperatives meant that the vast majority of goods by volume, and a substantial majority by value, traveled by sea. Thus China, like the U.S., has a major stake in seaborne container security. The Secure Freight Initiative Three East Asian ports—Singapore’s Brani Terminal, South Korea’s Gamman terminal (in Busan), and Hong Kong—are participating in the Secure Freight Initiative. Hong Kong’s recent participation is an extremely welcome development, 114  The Economic Costs of Disruptions in Container Shipments, Washington, D.C., Congressional Budget Office, March 29, 2006, p. 1. 115  “Container Security Initiative Fact Sheet”, U.S. Customs and Border Protection, 30 September 2006, http://www.cbp.gov/linkhandler/cgov/border_security/international_ activities/csi/csi_fact_sheet.ctt/csi_fact_sheet.doc (accessed). 116  The Economic Costs of Disruptions in Container Shipments, p. 1. 117 Ibid. 118  “Container Security Initiative 2006–2011 Strategic Plan”, U.S. Customs and Border Patrol, Office of Policy and Planning and Office of International Affairs, Container Security Initiative Division, August 2006, http://www.cbp.gov/linkhandler/cgov/border_ security/international_activities/csi/csi_strategic_plan.ctt/csi_strategic_plan.pdf, p. 5 (accessed December 30, 2007). 119  14.6 percent of China’s 2006 imports were from Japan, 11.3 percent from South Korea, and 7.5 percent from the U.S. “China”, CIA World Factbook, www.cia.gov/library/ publications/the-world-factbook/geos/ch.html (accessed September 20, 2009).

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as the Special Administrative Region currently ranks first in terms of the volume of both shipments and containers exported to the U.S.120 In 2004, the U.S. received US$43.4 billion containerized imports from Hong Kong.121 In fiscal year 2006, Hong Kong sent 13 percent (1.3 million) of its containers to the U.S. Moreover, 90 percent of Hong Kong’s shipments are themselves transshipments, making their safety all the more important to verify.122 Initiated officially on December 7, 2006, the Secure Freight Initiative supplements CSI by screening a greater portion of containers, even those not predetermined to be of high risk, with the goal of identifying radiological hazards. It therefore integrates sophisticated scanning technology (e.g., nuclear detection devices) into selected operations at selected ports and sub-port terminals.123 In fiscal year 2006, the six ports under evaluation handled over 10 percent (nearly 1.2 million) of U.S.-bound shipments.124 Participating (South)east Asian Nations Under CSI, officials collaborate closely with their host nation counterparts. U.S. Customs and Border Protection officers are stationed in many overseas locations, where they engage in reciprocal information exchange. Because these personnel are essentially law enforcement officials, and not military officials, they can more easily share relevant information, which is related to law enforcement activities as opposed to potential military activities. Cooperation in law enforcement is usually much easier for nations to achieve than is military cooperation, especially against mutual threats. CSI partner nations may also send officers to U.S. ports to monitor containers destined for their own nation’s ports, as Japan and Canada have already done. For a list of currently operational ports in East and Southeast Asia, please see Table 4.2.

120  “Hong Kong to Scan U.S.-Bound Goods for Radiation as Part of Secure Freight Initiative”, U.S. Customs and Border Protection, July 27, 2007, http://www.cbp.gov/xp/ cgov/newsroom/news_releases/archives/2007_news_releases/072007/07272007_2.xml (accessed July 1, 2009). 121 This represented 10 percent of overall containerized imports, and 3 percent of total imports. The Economic Costs of Disruptions in Container Shipments (Washington, DC: Congressional Budget Office, 29 March 2006), p. 1. 122  The Economic Costs of Disruptions in Container Shipments, p. 1. 123  “Secure Freight Initiative”, Department of Homeland Security, http://www.dhs. gov/xprevprot/programs/gc_1166037389664.shtm#content (accessed July 1, 2009). 124  Dannielle Blumenthal, “CBP Kicks Off Secure Freight Initiative”, U.S. Customs and Border Protection Today, April/May (2007), http://www.cbp.gov/xp/ CustomsToday/2007/apr_may/secure.xml (accessed July 1, 2009).

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Shenzhen

Kaohsiung

Yokohama

Shanghai

Chi-Lung

Tokyo

Busan*

Port Klang Tanjung Pelepas

Thailand

Malaysia

South Korea

Japan

Singapore*

Taiwan

CSI Ports in (South)east Asia125 Hong Kong*

Mainland China

Table 4.2

Laem Chabang

Nagoya Kobe * Also a participant in Secure Freight Initiative

All the aforementioned nations and entities have played a critical role in furthering CSI’s coverage, and deserve great recognition for their many efforts in this regard. For the purposes of this chapter, however, it will be necessary here to focus on the implementation of CSI in two East Asian member nations, Singapore and China. Singapore Singapore became the first Asian nation to participate in CSI in March 2003. With the world’s busiest port in terms of container traffic (23,192,000 twentyfoot equivalent units (TEUs) in 2005)126 and 80 percent of its large volume of containers representing transshipments, Singapore is uniquely positioned to detect and interdict dangerous containers. U.S. Customs and Border Protection has deployed five officers in Singapore, where they observe cargo being screened by Singaporean authorities.127 This is in complete accordance with utmost respect for Singapore’s national sovereignty, as it is with all host countries. Unarmed and lacking arrest powers, foreign officers stationed in host country ports conduct

125  “Ports in CSI”, U.S. Customs and Border Protection, September 21, 2007, http://www.cbp.gov/xp/cgov/border_security/international_activities/csi/ports_in_csi.xml (accessed November 15, 2008). 126  Data from the American Association of Port Authorities, http://www.aapa-ports. org/ (accessed July 1, 2009). 127 Information for this paragraph derived from “Singapore, the World’s Busiest Seaport, Implements the Container Security Initiative and Begins to Target and PreScreen Cargo Destined for U.S.”, U.S. Customs and Border Protection, March 17, 2003, http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/cbp_press_releases/ 032003/03172003.xml (accessed July 1, 2009).

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themselves strictly in accordance with CSI guidelines, with local law being the deciding factor. China With its rapid manufacturing-based economic growth, China has already had a major impact on global container trade, Beijing’s active participation is essential to the success of CSI. With seven of the world’s top 20 container ports,128 China processes a tremendous volume of containerized exports. In 2004, Chinese ports handled roughly one-quarter of global container traffic that year and (when including that of the Hong Kong S.A.R.) nearly 40 percent of world container volume. China’s rapid port development and economic growth will probably only increase its portion of global container trade.129 China’s formal accession to CSI in July 2003 was therefore a very welcome development. The announcement in April 2005 that the port of Shanghai would become operational in CSI was another milestone. Already third in volume after Singapore and Hong Kong (with 18,084,000130 container unit throughput in 2005, a 24 percent increase from the previous year), the port may become the world’s largest by 2010.131 Shenzhen’s announced entry in June 2005 was similarly positive. In 2005, the port ranked fourth globally in container unit throughput, just behind Shanghai at 16,197,000.132 It is to be hoped that more Chinese ports will enter CSI in the near future. Building Maritime Partnerships in Southeast Asia and Beyond While a variety of regional and international initiatives are beginning to enhance security in maritime Southeast Asia, what are the prospects for a more comprehensive approach to maritime security in the region and beyond? In a landmark speech at the 17th International Seapower Symposium, held at the U.S. Naval War College in September 2005, then-U.S. Chief of Naval Operations Admiral Michael Mullen called for a series of global maritime partnerships. In CNO Mullen’s vision, a “Thousand Ship Navy” would bring the maritime forces

128  Choe Sang-Hun, “Asian Ports Struggle to Keep Up with Shanghai”, December 20, 2006, http://www.iht.com/articles/2006/12/20/business/transcol21.php?page=1 (accessed July 1, 2009). 129  See Andrew S. Erickson and Gabriel B. Collins, “China’s Maritime Evolution: Military and Commercial Factors”, Pacific Focus, Fall 2007. 130  Data from the American Association of Port Authorities. 131  Choe Sang-Hun, “Asian Ports Struggle to Keep Up with Shanghai.” 132  Data from the American Association of Port Authorities.

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of friendly nations together based on their abilities, needs, and interests to provide collective security against a variety of threats in the maritime commons.133 Under the leadership of Admiral Mullen (now Chairman of the Joint Chiefs of Staff) and his successor Admiral Gary Roughead, the U.S. government has for the first time brought all three of its maritime forces (the Navy, Marine Corps, and Coast Guard) together to produce a unified strategy. Unveiled at the U.S. Naval War College in Newport, Rhode Island, in October 2007, with 97 heads of foreign maritime forces in the audience and participating in related discussion panels, A Cooperative Strategy for 21st Century Seapower is based on the premise that “preventing wars is as important as winning wars.”134 As the U.S. Secretary of the Navy Donald C. Winter has cautioned, the U.S. is “not walking away from, diminishing, or retreating in any way from those elements of hard power that win wars—or deter them from ever breaking out in the first place.” But this first major U.S. maritime strategy in 25 years does place renewed emphasis on cooperating to protect the global commons on which the security and prosperity of nations around the world depends. In this new vision, U.S. “maritime forces will be employed to build confidence and trust among nations through collective security efforts that focus on common threats and mutual interests in an open, multi-polar world.”135 Moreover: “Expanded cooperative relationships with other nations will contribute to the security and stability of the maritime domain for the benefit of all” because “trust and cooperation cannot be surged” but must rather “be built over time so that the strategic interests of the participants are continuously considered while mutual understanding and respect are promoted.”136 More specifically, this new U.S. maritime strategy states, “Building and reinvigorating these relationships … requires an increased focus on capacity-building, humanitarian assistance, regional frameworks for improving maritime governance, and cooperation in enforcing the rule of law in the maritime domain … by countering piracy, terrorism, weapons proliferation, drug trafficking, and other illicit activities.”137 Moreover, “When natural or manmade disasters strike, our maritime forces can provide humanitarian assistance and relief, joining with interagency and non-governmental partners. By participating routinely and

133  See, for example, Admiral Michael Mullen, “The Thousand Ship Fleet”, Pentagon Brief, October 1, 2005; “‘Global Maritime Partnership’ Gaining Steam at Home and with International Navies”, Defense Daily International, 7: 42 (October 27, 2006). 134  “A Cooperative Strategy for the 21st Century Seapower”, U.S. Chief of Naval Operations and the Commandants of the U.S. Marine Corps and U.S. Coast Guard, October 17, 2007, http://www.navy.mil/maritime/MaritimeStrategy.pdf (accessed July 1, 2009), p. 4. 135 Ibid., p. 5. 136 Ibid., p. 11. 137 Ibid., p. 11.

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predictably in cooperative activities, maritime forces will be postured to support other joint or combined forces to mitigate and localize disruptions.”138 Despite ongoing strategic concerns, there appears to be growing recognition that the most substantive threats at present to seaborne trade and energy supplies in such regions as Southeast Asia are not from other navies, but rather from nonstate actors such as pirates and terrorists, as well as adverse weather and physical overcrowding of the Malacca Strait and other key shipping lanes. These issues are all best dealt with via “capacity building” measures aimed at improving the ability of coastal nation governments to solve these problems from the grassroots level up. Future progress in this area might include providing additional training to regional police forces and coastguards, building an improved regional vessel tracking network, and promoting economic development to give erstwhile pirates and terrorists better alternatives. Additionally, a wide spectrum of Chinese analysts appear to be attuned to the complicated reality of China’s energy challenge, and express a clear readiness to engage in cooperation with other oil-consuming great powers, including the U.S., in order to secure oil and gas supply stability. These enlightened perspectives may offer a basis for substantive cooperation, including in maritime Southeast Asia. Already, according to scholar Donald Weatherbee, the U.S. and China have similar interests in maintaining the security of sea lanes throughout Southeast Asia and the critical straits choke points. Both Beijing and Washington have committed their support to ASEAN in a variety of multilateral non-traditional security areas: counter-narcotics, counter-piracy, and counter-trafficking in persons. 139 … The commonality of Chinese, ASEAN, and U.S. views of the terrorist threat has been expressed in bilateral terms, ASEAN formulations, and the multilateral deliberations of the ASEAN Regional Forum (ARF).140 … The United States and China have been proactive with ASEAN on other transnational issues, such as combating the spread of pandemic disease (including HIV/AIDS, SARS, and avian influenza. From ASEAN’s vantage, both China and the United States are playing positive roles.141

There are certainly frictions that will doubtless be associated with China’s rise as an energy consumer and major player throughout the maritime arena and policymakers throughout the Asia-Pacific region must recognize this. But it is important now for the U.S. and China to engage each other on these important issues, as both sea powers are in the process of making decisions that will shape

138 Ibid., p. 12. 139  Weatherbee, “Strategic Dimensions of Economic Interdependence in Southeast Asia”, p. 293. 140 Ibid., p. 294. 141 Ibid., p. 293.

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their force structures for years to come. In that spirit, the next section will outline some of the modest but useful interaction that has occurred thus far. Sino-American Maritime Cooperation Over the past few years, a larger vision has been emerging concerning the utility of cooperation between China and the U.S.142 Former Deputy Secretary of State Robert Zoellick has stated that it is in China’s interest to become a “responsible stakeholder” and that Beijing “has a responsibility to strengthen the international system that has enabled its success.” Beijing and Washington, Zoellick suggests, possess a “shared interest in sustaining political, economic, and security systems that provide common benefits.”143 While expressing significant concerns, China’s 2006 Defense White Paper acknowledges that “[N]ever before has China been so closely bound up with the rest of the world as it is today.” China, in this analysis, is “[C]ommitted to peace, development, and cooperation” as it seeks to construct “together with other countries, a harmonious world of enduring peace and common prosperity.”144 The 2008 edition adds, “The Asia-Pacific security situation is stable on the whole. The regional economy is brimming with vigor, mechanisms for regional and sub-regional economic and security cooperation maintain their development momentum, and it has become the policy orientation of all countries to settle differences and hotspot issues peacefully through dialogue.”145 The potential for Sino-American maritime cooperation has been highlighted by recent events. The U.S. Coast Guard has established excellent relations with its Chinese counterparts. These include the Ministry of Public Security (with its Border Control Department and Maritime Police Division), Ministry of Communications (with its Maritime Safety Administration and Rescue and 142  For a positive but realistic exploration of this topic, see Andrew Erickson and Lyle Goldstein, “Hoping for the Best, Preparing for the Worst: China’s Response to U.S. Hegemony”, Journal of Strategic Studies, 29: 6 (December 2006), pp. 955–86. This section draws heavily on Andrew S. Erickson, “Combating a Collective Threat: Prospects for SinoAmerican Cooperation Against Avian Influenza”, Journal of Global Health Governance, I: 1 (January 2007), http://diplomacy.shu.edu/academics/global_health/journal/ (accessed July 1, 2009). 143 Robert B. Zoellick, “Whither China: From Membership to Responsibility?” Remarks to the National Committee on U.S.–China Relations, New York, September 21, 2005; James J. Przystup and Phillip C. Saunders, “Visions of Order: Japan and China in U.S. Strategy”, Strategic Forum, 220 (June 2006), Washington, D.C., National Defense University, Institute for National Strategic Studies. 144  The Information Office of the State Council of the People’s Republic of China, “China’s National Defense in 2006”, December 29, 2006, www.china.org.cn/english/ features/book/194421.htm (accessed June 30, 2009), pp. 1, 3. 145  The Information Office of the State Council of the People’s Republic of China, “China’s National Defense in 2008”, January 20, 2009, www.gov.cn/english/official/.../ content_1210227.htm (accessed June 30, 2009).

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Salvage Agency), Ministry of Agriculture (with its Bureau of Fisheries), and State Oceanic Administration. In May 2006, buoy tender USCGC Sequoia (WLB-215) became the first U.S. cutter to visit China. In June 2006, USCGC Rush (WHEC723) called in Qingdao. In August 2007, USCGC Boutwell continued these exchanges with a visit to Shanghai during the North Pacific Coast Guard Forum, East Asia’s only maritime security organization, in which China and the U.S. play substantive roles.146 U.S. Coast Guard officers have provided training and lectures in China, and Chinese officers have studied at the U.S. Coast Guard Academy (New London, C.T.) and the fisheries enforcement school (Kodiak, A.K.). Chinese fisheries enforcement officers have served temporarily on U.S. cutters (i.e., to halt illegal Chinese fishing), and their patrol boats join U.S., Japanese, and Russian counterparts annually to prevent illegal driftnet fishing in the North Pacific. It is to be hoped that the apparently planned creation of a unified Chinese coastguard organization will further opportunities to build on this substantive and useful progress. Already, the posting of a U.S. Coast Guard liaison officer, with the rank of captain, at the U.S. embassy in Beijing appears to indicate prioritization of developing the relationship on the U.S. side.147 Despite its greater sensitivity, cooperation between the U.S. and Chinese navies is expanding as well, as part of larger bilateral military cooperation and exchanges. In July 2006, PRC Central Military Commission (CMC) Vice Chairman Guo Boxiong became the highest-ranking Chinese military officer to visit the U.S. since 2001. Qian Lihua, deputy director of the Foreign Affairs Office of China’s Defense Ministry, described Guo’s visit as “the most important Chinese military exchange with another country this year” and bilateral military relations as being “at their best since 2001.”148 Former Commander of U.S. Forces in the Pacific Admiral William Fallon visited China in May and August 2006. He extended to the PLA an unprecedented invitation to observe the U.S. Guam-based military exercise Valiant Shield in June, which was readily accepted. A Chinese defense ministry official stated that, “The invitation to observe the U.S. military exercises is a very important component of exchanges between the militaries of China and the United States.” That same month, the U.S. Navy’s Pacific Fleet flagship Blue Ridge called on Shanghai for the fourth time, which China’s official media described as “highlighting warming exchanges between the two navies.” Assistant Defense Secretary Peter Rodman led a U.S. delegation to Beijing for the eighth round of annual defense consultations between the two countries. “The defense 146  “Shanghai Hosts U.S. Coast Guard Cutter Boutwell during North Pacific Coast Guard Forum 2007”, U.S. Coast Guard Visual Information Gallery, August 16, 2007, http:// cgvi.uscg.mil/media/main.php?g2_itemId=159644 (accessed July 1, 2009). 147  Unless otherwise specified, data for this paragraph are derived from Lyle J. Goldstein, “China: A New Maritime Partner?” p. 29. 148 All quotations in the paragraph are taken from “China, U.S. Enjoy Active Military Exchanges in 2006”, People’s Daily, December 28, 2006, http://english.peopledaily.com. cn/200612/28/eng20061228_336342.html (accessed July 1, 2009).

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departments of the two countries restored a series of consultation mechanisms on maritime security, humanitarian disaster relief and military environmental protection,” stated People’s Daily. “A mechanism for officer exchanges between the two armed forces was also set up and military institutions have regular exchange programs.” Visits to China were also made in September and December 2006 by Ryan Henry, Deputy Under Secretary of the U.S. Department of Defense, and Gary Roughead, then Commander in Chief of the U.S. Pacific Fleet. Building on the foundation of this growing series of exchanges, the U.S. and China have held a series of unprecedented bilateral exercises. A search and rescue exercise (SAREX) was held by off San Diego on September 20, 2006. Though a series of port visits had previously occurred, and are scheduled to continue,149 this was the first bilateral military exercise ever conducted between the two nations.150 The two navies stationed observers on each other’s ships as they practiced transmitting and receiving international communications signals. Led by North Sea Fleet deputy commander Rear Admiral Wang Fushan, China’s guided missile destroyer Qingdao and refueling vessel Hongze Hu joined the new U.S. Arleigh Burke-class Aegis-guided missile destroyer USS Chung-Hoon (DDG 93).151 The 2006 SAREX is envisioned to be “the first in a series of bilateral exercises.”152

149  “Chinese Fleet Visits San Diego”, People’s Liberation Army Daily, September 18, 2006, http://english.pladaily.com.cn/site2/special-reports/2006-09/19/content_591087. htm (accessed July 1, 2009); “Chinese Fleet Visits San Diego”, People’s Daily, September 19, 2006, http://english.people.com.cn/200609/19/eng20060919_304115.html (accessed July 1, 2009); Steve Liewer, “‘A Touching Moment’: Hundreds Greet 2 Chinese Navy Ships; Last Visit Was More Than 9 Years Ago”, San Diego Union-Tribune, September 19, 2006, “Chinese, U.S. Warships Train Off San Diego Coast”, Mercury News, September 20, 2006, http://www.signonsandiego.com/uniontrib/20060919/news_1m19chinese.html (accessed July 1, 2009). 150  Vessels from the U.S. and Chinese navies have previously participated in search and rescue exercises in Hong Kong (e.g., in 2003), but did not directly interact in the exercise. “U.S., Chinese Navies Complete SAREX Together”, Navy Newsstand, September 21, 2006, http://www.navy.mil/search/display.asp?story_id=25702 (accessed July 1, 2009); Bonnie Glaser, “U.S.–China Relations: Promoting Cooperation, Managing Friction”, Comparative Connections, A Quarterly E-Journal on East Asian Bilateral Relations, se1. isn.ch/serviceengine/FileContent?serviceID=PublishingHouse&fileid=865DDC28-B012(accessed February 10, 2009). 151  Specifically selected to convey a positive connection, USS Chung-Hoon is the first U.S. Navy ship named for a Chinese-American. Rear Admiral Gordon Pai’ea ChungHoon (1910–79) served as commanding officer of USS Sigsbee (DD 502) from May 1944 to October 1945 and received the Navy Cross and Silver Star for “conspicuous gallantry and extraordinary heroism.” See “Rear Admiral Chung-Hoon”, from the official Navy website of USS Chung-Hoon (DDG 93), http://navysite.de/dd/ddg93.htm (accessed July 1, 2009). 152  “U.S., Chinese Navies Complete SAREX Together”; “Chinese, U.S. Sailors Meet, Make Friends”, Navy Newsstand, September 20, 2006, http://www.navy.mil/search/ display.asp?story_id=25664 (accessed July 1, 2009).

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A second phase of the exercise was held in the South China Sea in November 2006.153 China provided guided missile destroyer Zhanjiang, fuel tanker Dongting Lake, and a Yun-7 transport aircraft. The U.S. contributed missile destroyer USS Fitzgerald, landing platform dock (LPD) USS Juneau, and a P-3C patrol plane. These ships and aircraft worked together to “locate and salvage a ship in danger.” In the assessment of PLAN South China Sea Fleet Commander Gu Wengen, “the two navies demonstrated very good military skills and strong cooperative spirits.”154 “The exercise symbolizes more substantial cooperation between the armed forces of China and the United States, which is very important to the future development of military relations,”155 Qian Lihua elaborated. “The current search-and-rescue exercise is an important and substantial exchange activity between the two armed forces. It has been of vital importance to expanding the Sino-U.S. military cooperation despite its limited scale in terms of troops and vessels.”156 “The visit of the USS Juneau is indicative of improved military relations and transparency between the People’s Liberation Army navy and the U.S. navy,” then-U.S. Pacific Fleet Commander Admiral Gary Roughead concluded.157 China has also been invited to cooperate more broadly with the U.S. Navy under the framework of global maritime partnerships. While visiting China in November 2006, then-U.S. Pacific Fleet commander (and now Chief of Naval Operations) Admiral Roughead stated to Chinese officials that “[E]nhancing our navy-tonavy relationships is especially important so we can cooperate in our many areas of mutual interests … [T]hrough routine dialogue and exercises, our navies can improve the ability to coordinate naval operations in missions such as maritime security, search and rescue, and humanitarian relief.”158 In April 2007, during PLA Navy commander Vice Admiral Wu Shengli’s visit to the U.S., Admiral Mullen asked Admiral Wu to consider “China’s potential participation in global maritime partnership initiatives.”159 According to Admiral Mullen’s spokesman Commander 153  The Information Office of the State Council of the People’s Republic of China, “China’s National Defense in 2006”, December 29, 2006, www.china.org.cn/english/ features/book/194421.htm (accessed June 30, 2009), pp. 31–33. 154  “China, U.S. Hold Search-and-Rescue Exercise”, Xinhua, November 19, 2006, http://news.xinhuanet.com/english/2006-11/19/content_5349057.htm (accessed July 1, 2009). 155  “China, U.S. Enjoy Active Military Exchanges in 2006”, People’s Daily, December 28, 2006, http://english.peopledaily.com.cn/200612/28/eng20061228_336342. html (accessed July 1, 2009). 156  “China, U.S. Hold Search-and-Rescue Exercise.”, 157  “Sino-U.S. Search-and-Rescue Exercise Held on South China Sea”, Xinhua News Agency, November 20, 2006, http://www.china.org.cn/english/MATERIAL/189469. htm (accessed July 1, 2009). 158  “U.S. Pacific Fleet Commander Visits China”, Navy Newsstand, November 13, 2006, www.news.navy.mil (accessed March 13, 2008). 159  P. Parameswaran, “U.S. Asks China to Help Maintain Global Maritime Security”, Agence France Presse, April 5, 2007.

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John Kirby, Admiral Wu “expressed interest” in the proposal and “asked for more information … so that he would better acquaint himself about it.”160 Already, the U.S. and Chinese navies have made new strides in communication during the historical and widely welcomed deployment of destroyers from China’s South Sea Fleet to protect merchant vessels from piracy in the Gulf of Aden.161 Combating avian influenza is another area in which the two militaries might cooperate productively.162 Conclusion The greater South China Sea region boasts increasing maritime commerce but faces growing unconventional security threats. A wide variety of bilateral and multilateral maritime security cooperation initiatives that recognize both the gravity of extant threats and the interests of those responsible nations involved are helping provide a set of frameworks for collective security. There are other positive indications that analysts in nations throughout the Asia-Pacific increasingly seek cooperative solutions to maritime security concerns. A major collaborative Chinese study on sea lane security, for instance, calls for emphasizing cooperation in international organizations and conventions, laws and regulations concerning oil transport.163 Establishing specific security measures offers prospects for increasing trust, fostering good will, and enhancing maritime security in Southeast Asia. As the world’s largest developed and developing nations respectively, as well as two major Pacific powers, the U.S. and China have a critical role to play in this process. Effective bilateral communication in this regard will maximize prospects for positive results.

160  P. Parameswaran, “Plea by Pentagon to Top Naval Visitor”, The Weekly Standard, April 6, 2007, http://www.thestandard.com.hk/news_detail.asp?we_cat=3&art_id=41726& sid=13026608&con_type=1&d_str=20070406 (accessed July 1, 2009). 161  For details, see Erickson and Justin Mikolay, “Welcome China to the Fight Against Pirates,” U.S. Naval Institute Proceedings, March 2009, pp. 34-41. 162  For further details, see Erickson, “Combating a Collective Threat: Prospects for Sino-American Cooperation Against Avian Influenza”; Erickson, “Combating a Collective Threat: Protecting U.S. Forces and the Asia-Pacific from Pandemic Flu”, in Michael Birt and Claire Topal, eds, An Avian Flu Pandemic: What Would it Mean, and What Can We Do? Seattle, W.A., National Bureau of Asian Research, June 2006, pp. 11–20. 163  Zhang Yuncheng, “Energy Security and Sea Lanes”, p. 124.

Chapter 5

Myth and Reality: The Rise and Fall of Contemporary Maritime Piracy in the South China Sea XU Ke

Introduction Maritime piracy has plagued the South China Sea since early 1990s. After the terrorist attacks on New York on September 11, 2001 (9/11), piracy evoked further concern, and the myth of a piracy and terrorism nexus was expressed by the mass media and government statements. Intriguingly, three years later, piracy incidents had declined significantly, especially in the Straits of Malacca, and this trend has continued up to the present. This chapter looks into the factors contributing to the rise and fall of maritime piracy in the Straits of Malacca and South China Sea from 1991 to 2007. The chapter has three sections: the following section introduces the definition of maritime piracy and data about it; the second section reveals factors contributing to the rise and fall of contemporary piracy in the South China Sea; and the final section discusses the myth and reality of anti-piracy cooperation after 9/11. Definition and Data Piracy has many definitions in the contemporary era. Currently, three definitions are well known. The first one is the definition in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS); the second, the International Maritime Bureau Piracy Reporting Center (IMB-PRC) of International Chamber of Commerce; the third, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).

  Adam. J. Young and Mark. J Valencia, “Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility,“ Contemporary Southeast Asia, 25: 2 (2003), pp. 269–83.  IMB-PRC, Piracy and Armed Robbery against Ships: Annual Report, 1 January – 31 December 2007, London, ICC International Maritime Bureau, 2008, p. 5.

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Piracy is defined in the UNCLOS, Article 101. This definition applies only to any of the described illegal acts committed either on the high seas or outside the jurisdiction of any state. Thus, technically, any violent and illegal acts against ships or property and people on board ships taking place in ports or inside territorial waters can not be referred as piracy. The second definition of piracy is that of the IMB-PRC (1992). The IMB-PRC defines piracy as “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.” This definition “covers actual or attempted attacks whether the ship is berthed, at anchor or at sea,” which is much wider than the UNCLOS Article 101. The third definition is in the ReCAAP agreement (2004), Article 1, which uses two legal terms: “piracy” and “armed robbery against ships,” covering all the unlawful acts outside and within a state’s jurisdiction. The definition of piracy is pursuant to the UNCLOS Article 101, and the definition of “armed robbery against ships” adopts the definition of United Nations International Maritime Organization (IMO): “Armed robbery against ships” means any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of “piracy,” directed against a ship or against persons or property on board the ship, within a State’s jurisdiction over such offenses.

For the purpose of easy communication, the chapter adopts the IMB definition as a working definition; that is that “piracy” refers to both “piracy” as defined under Article 101 of the UNCLOS and “armed robbery against ships” as defined by the IMO. Data used in this study consist of two parts: primary sources on piracy cases and time-series piracy reports. The piracy cases provide an in-depth knowledge of piracy, while the time-series piracy reports reveal the overview picture of piracy. Piracy cases were collected from trial records, witness testimonials, interviews, government gazettes, shipping columns, newspapers, magazines, photographs, and video reports. The time-series piracy reports acquired from three organizations: International Maritime Bureau Piracy Reporting Center (IMB-PRC); International  International Seabed Authority, The Law of the Sea: Compendium of Basic Documents, Kingston, International Seabed Authority, Caribbean Law Publishing, 2001, p. 39.  IMB-PRC, Piracy Report 1992, London: ICC International Maritime Bureau, 1993, p. 2.  Ibid.  IMO, “Draft Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships (MSC/Cir.984)”, Article 2.2. http://www.imo.org (accessed July 8, 2007).

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Maritime Organization (IMO), and Information Sharing Center of Regional Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ISCReCAAP). The IMB-PRC, a non-government organization sponsored by shipping industry in Kuala Lumpur, Malaysia, has published the IMB Piracy and Armed Robbery against Ships Reports since 1992. The IMB-PRC also provides weekly updates on pirate activities via the Internet. The IMB-PRC reports provide detailed information on locations of actual and attempted attacks, status of ships during actual attacks, the types of arms used, the type of violence, types of ships attacked, the nationalities of ships attacked, as well as the trend of piracy attacks. Thus, the IMB reports are widely used by researchers. The United Nations International Maritime Organization (IMO) Maritime Safety Committee has published Piracy and Armed Robbery against Ships Reports since 1995. The reports, compiling from piracy reports from shipping industry, are similar to IMB-PRC reports, but less detailed. The most recent new type of piracy reports are published by Information Sharing Center (ISC) of ReCAAP, which was set up in Singapore in November 2006. The ISC data are collected directly from focal points of member states; however, the data in ISC reports only cover piracy and armed robbery against ships incidents in Asian waters. The Rise and Fall of Contemporary Piracy The Surge of Piracy Incidents According to the IMB-PRC piracy reports, there were 102 piracy incidents in Southeast Asia in 1991, and the figures increased until 2000, when the figure peaked at 262 incidents. The number declined significantly after 2004. The most piracy-prone areas were in Indonesian waters, the Straits of Malacca and the South China Sea. From 1991 to 2007, Indonesian waters experienced 1,148 actual and attempted piracy attacks; the Straits of Malacca and the South China Sea hosted 963 incidents. What factors caused the surge of piracy in these areas? The first factor is due to their unique geographic position; the second, the rapid development of the global shipping industry; the third, the political economy situation in the littoral states; and the fourth, the obstacles to anti-piracy operations among these countries.

 IMB-PRC, Piracy and Armed Robbery against Ships: Annual Report (1991–2004), London: ICC International Maritime Bureau, 1992–2008.   See http://www.recaap.org (accessed March 6, 2007).  IMB-PRC, Piracy and Armed Robbery against Ships: Annual Report (1991–2007), London: ICC International Maritime Bureau, 1992–2008.

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Chokepoints and Seaborne Trade Routes  The Straits of Malacca and the South China Sea are located in the major sea lines of communication (SLOC) connecting the West and East Asian countries. These SLOCs cross the waters of several countries, including Malaysia, Indonesia, and Singapore, with Singapore’s port facilities serving as a major node for refueling and transshipment. More than half of the world‘s annual merchant fleet tonnage passes through the Straits of Malacca, Sunda, and Lombok.10 Cargo flowing into Asia includes containerized goods, dry bulk goods such as grain, coal, and iron ore from North America and Australia, and oil from the Middle East. Crude oil is the biggest single cargo in terms of volume through Southeast Asia to East Asia, while finished consumer goods are the principal cargo being transported back via Southeast Asia to India, the Middle East, and Europe. The Straits of Malacca have been the main seaborne trade gateway since the early history of Southeast Asia. The Straits of Malacca remain the shortest sea route from the ports of India and the Persian Gulf to ports on mainland East Asia. Nowadays, tanker traffic through the Straits of Malacca is more than three times that of Suez Canal traffic, and well over five times that of the Panama Canal. The Straits have become more and more congested every year; according to the Statistics of Marine Department Peninsular Malaysia, the ships passing through the Straits of Malacca amounted to 63,636 in 2004, and the number continues to increase each year. 11 The maximum tonnage of ships allowed to pass through the Straits of Malacca, according to the Traffic Separation Schemes, was limited to 230,000 dead weight tonnage (dwt) with an Under Keel Clearance (UKC) of at least 3.5 meters at all times. Ships larger than 230,000 dwt must use the Sunda, Lombok, and Makassar Straits.12 The Sunda and Lombok–Makassar routes are superior in terms of depth and width to the Straits of Malacca, but lack good navigational aids and infrastructure. Furthermore, ships using these straits have to navigate a longer distance (around 1,000 nautical miles) and more time (two or three days) than passing through the Straits of Malacca, and the freight rate would also increase nearly 20–30 percent.13 In terms of freight costs, these straits are not the ideal choice for shipping companies. Shipping Industry and Piracy  Since 1990s, the robust economic situation in East Asia has given a fresh impetus to seaborne trade and shipping industry. A huge 10  Michael 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, p. 38. 11 A.R. Hussin, “The Management of Straits of Malacca: Burden Sharing as the Basis for Co-opeation”, LIMA International Maritime Conference 2005, Awana Porto Malai, Langkawi, Malaysia, 2005. 12 Richardson, A Time Bomb for Global Trade, pp. 36–41. 13 Ibid, p. 41.

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volume of cargo flowing through the Straits of Malacca provides ready prey for pirates. The global shipping industry is the direct prey of piracy. The prey includes ships, cargoes and crew. Among all the victims’ ships, bulk carriers were on the top of victim ships list, with 916 incidents, nearly 21 percent of total attacks from 1991 to 2007. Bulk carriers travel at a limited speed and their freeboards are low, which makes it easier for pirates to board them when they are underway.14 The other vulnerable types of vessels were general cargo ships, container ships, and oil tankers. From 1991 to 2007, there were 736 attacks against general cargo ships, nearly 18 percent of total attacks; 609 attacks against crude oil tankers, nearly 15 percent of total attacks; and 363 attacks against chemicals tankers, nearly 9 percent of total attacks. In the Straits of Malacca and Singapore, these vessels are most likely to be attacked, because they have to slow down when passing through the Straits. Fishing boats and trawlers are also vulnerable due to their slow speed and their lucrative seafood cargoes which are easy to be dispose of in open markets. From 1991 to 2007, there were 214 attacks against fishing boats and trawlers.15 Some inherent weaknesses in the ship industry make ships vulnerable to piratical attacks. Thanks to modern technology, the number of crew members now needed on board has been greatly reduced; this makes it easier for pirates to seize the control of such ships. For example, bulk carriers have only an average of 20–25 crew members on board; container ships, 21; tankers, 12–25; and fishing boats, fewer than 10.16 Furthermore, crews have been discouraged from fighting back for fear of escalating the situation.17 This has encouraged pirates to be more daring in their attacks. Flag of Convenience To make the matter worse, many ship owners register their ships under flags of convenience (FOC). An FOC is: “the flag of any country allowing the registration of foreign-owned and foreign-controlled vessels under conditions which, for whatever the reasons, are convenient and opportune for the persons who are registering the vessels.”18 Pirates have taken advantage of the

14  Freeboard: the distance between the water line and the uppermost full deck of a ship. 15 ICC-IMB, Piracy and Armed Robbery against Ships Annual Report (1991– 2007). 16 ISC-ReCAAP, “Analysis of Type of Ships involved in Incidents of Piracy and Armed Robbery in Asia (2003–2007)”, Singapore: ISC-ReCAAP, 2008. 17 IMO, Piracy and Armed Robbery against Ships: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery against Ships, May 29, 2002 http://www.imo.org/includes/blastDataOnly. asp/data_id%3D5378/623r3.pdf (accessed November 1, 2005). 18 Richard M. F. Coles and Nigel P. Ready, Ship Registration, London: Lloyd’s Shipping Law Library, 2002, p. 15.

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loophole of FOC to re-register their stolen ships; this will be elaborated on later. The use of flags of convenience can be traced back to the use of the Spanish flag by English merchants in order to avoid Spanish monopoly restrictions on trade with the West Indies in the seventeenth century. The widespread use of flags of convenience began in the 1920s.19 Since World War II, the number of flags of convenience has increased tremendously. The leading open registry countries are Panama, Liberia, the Bahamas, Malta, and Cyprus. For example, at the end of 2005, the number of ships flying Panamanian and Liberian flags reached 8,494, totaling 201,421,949 gross tonnage (GT), more than a quarter of global tonnage.20 The reasons why ship owners register their ships under FOC flags, or “flag out,” is based principally on economic considerations. FOCs are easy to register, for example, a ship may be registered at a consul’s office abroad, and a transfer from one registry to another is not restricted. Taxes on a ship’s income are low or may not even be levied. A registry fee and an annual fee, based on tonnage, are normally the only charges made. For example, under Panamanian registration, a ship of 15,000 dwt need only pay US$3,000 for initial registration, and subsequently pays only US$1,500 annually in tonnage tax (10 cents per ton) and an annual survey tax fee of US$1,000.21 From the shipowners’ point of view, their ultimate aims are to maximize profit and minimize operation costs. Flags of convenience (FOC) meet this demand. Under the registration of FOC, shipowners can avoid taxes and benefit from lower crewing costs. For example, annual crewing costs for a United Kingdom-registered tanker with a British crew are estimated at US$908,000. In the case of a Hong Kong-registered ship (FOC) with a Hong Kong crew, that figure could be reduced to US$396,000.22 Furthermore, under FOC, ship owners enjoy anonymity. Owners can change their identities to avoid being identified, especially when their ships have been blacklisted by an insurance company. 23 There are always conflicts of interest between ship owners and insurance companies, which will be discussed later. However, the FOC lacks a “genuine link” with flag states. FOC countries are typically small states that have neither the power nor the administrative machinery to impose effective governmental or international regulations on ships under their registration. FOC countries’ principal aim is to earn money from registration, and they have no intention or power to protect ships under their registration.24 Thus, those ships under FOCs are vulnerable to piratical attacks. From 1991 to 2007, the ships flying Panamanian, Liberian, Cypriot, and Bahaman FOC flags were 19 Ibid. 20  Lloyd’s Register, World Fleet Statistics 2006, London: Lloyd’s Register, p. 10. 21 Richard M.F. Coles, and Nigel P. Ready, Ship Registration, London: LLP, 2002, pp. 245–7. 22 Coles and Ready, Ship Registration, 46. 23 Ibid., p. 20. 24  B.N. Metaxas, Flags of Convenience: A Study of Internationalisation, Aldershot, Hampshire: Gower Pub. Co., 1985, pp. 14–15.

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at the top of the victim ship list. Panamanian ships were involved in 603 piracy incidents; Liberian, 228; Cypriot, 235; and Bahaman, 166.25 The loophole of FOC has long been used by pirates for re-registering stolen ships. The modus operandi is quite simple. The criminal groups use their network to find a suitable ship to be hijacked at sea. The cargo on board is downloaded, and disposed of through their smuggling network on the black market. The crew are either killed or abandoned. The ship becomes a “phantom ship.” A typical illustration of this kind of attack is the “Cheung Son case.” The Cheung Son case is one of China’s most brutal cases of piracy in the South China Sea, involving the murder of 23 Chinese seamen on board the MV Cheung Son, whose bodies were dumped overboard, and ended with 13 pirates (one Indonesian and 12 Chinese nationals) being sentenced to death. The ship, the Cheung Son, was repainted and turned into “phantom ship” before the pirates were caught. The ship has never recovered, she might be somewhere in the world, using another name.26 The phantom identity enables the owners of “phantom ships” to commit maritime fraud. Firstly, the phantom ship owner offers competitive freight rates to shippers who are not aware of the conspiracy. After the cargo has been loaded, the ship is diverted to another destination, and the cargo is off-loaded and sold to prearranged buyers. The ship is then re-registered with yet another phantom identity, and the crime is committed all over again. It is difficult to trace these ships because none of their registration details are accurate.27 According to IMB reports, 136 ships have been hijacked and have then disappeared. Many of these ships were probably turned into “phantom ships.”28 Piracy and Insurance To avoid losses from pirate attacks, one solution for ship owners is to buy an insurance policy with piracy coverage. In global insurance markets, piracy is usually covered under hull and machinery risks. However, an insurance policy always has a “deductible amount” term. The insured has no right to claim for any reimbursement when the loss incurred is less than the deductible amount.29 Most pirate attacks in Southeast Asian waters are made with the intent of robbing the crew of cash and property. The economic losses made in these attacks are usually insufficient to exhaust the deductibles on most marine insurance 25 ICC-IMB, Piracy and Armed Robbery against Ships Annual Report (1991– 2007). 26  Guangdong Higher Court, “Court Judgement Of ‘The Case of Wei Siliang and Soni Wee and Others, Total 38 Suspects’,” in Renmen Fayuan Caipan Wenshu Xuan [The Selected Court Judgments], Beijing: Falu Chubianshe, 2001. 27 Ibid., p. 33. 28 ICC-IMB, Piracy and Armed Robbery against Ships: Annual Report (1 January – 31 December 2005), London, ICC International Maritime Bureau, 2006. 29  Jonathan Ignarski, “Piracy, Law and Marine Insurance”, in Piracy at Sea, ed. Eric Ellen, Paris: ICC Publishing SA, 1989, p. 182.

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policies. This means that ship owners have to cover the entire loss without getting any reimbursement from their insurance company, or get a fixed maximum reimbursement, for example, US$20,000, as in the Hellenic Club’s 1988 rules.30 If ship owners report that their ships are being attacked by pirates, they might lose time and money in waiting for the insurance company to investigate the case, and even after all that, they might not succeed in obtaining sufficient reimbursement. Furthermore, the ship owner might acquire the bad reputation of being vulnerable, and their insurance company might require a possible increase in premium. These are the main reasons for at least 55 percent of pirate attacks not being reported.31 The brutal nature of contemporary maritime piracy creates an atmosphere of terror in which it is much more difficult for ship owners to crew their vessels, particularly those ships plying Southeast Asian waters. As a consequence, ship owners are forced to offer better pay and increased benefits to their sailors in compensation for the greater physical risk, and this of course results in an increase in ship owners’ operating costs. To remain in business, such ship owners will need to cut prices and reduce margins to compensate merchants for their own added risk of delay or loss. In order to avoid having to reduce profit margins and to stay in business, ship owners are compelled to employ anti-piracy measures. Implementing more effective measures often costs more than ship owners are currently willing to spend.32 One example involves the problems and costs of hiring a group of private armed escorts. There is a private security company, “Malacca Straits Maritime Security,” which provides security escorts through the Straits of Malacca. The service costs between US$10,000 and US$100,000 a day. The US$10,000 service consists of a group of four to six armed Gurkhas on a small escort vessel. The full service includes an armed Gurkha squad on board, fast craft and helicopter scouts, and an additional patrol craft escort. However, the necessary maritime legislation and multilateral coordination have not yet been worked out to facilitate the operations of such private armed escorts. Furthermore, a regional licensing regime must be established in order to distinguish between reputable private security companies and those with a more mercenary inclination.33 As previously mentioned, insurers are responsible only for losses sustained that exceed the amount of the deductible. A lower deductible amount means a higher premium, to compensate for the insurer’s added liability. In most pirate attacks in Southeast Asian waters, the losses from piracy are less than the policy deductible, so insurers indemnify such losses only on rare occasions. 30 Ibid. 31 Noel Choong, (Regional Director of the IMB Piracy Reporting Centre), in discussion with the author, Kuala Lumpur, March 13, 2004. 32 Captain Chua Yoe Han (manager of a Singaporean shipping company) in discussion with the author, Singapore, May 18, 2004. 33 Tracy Sua, “For Hire: Guardians of the Sea—Several Firms Now Offer Armed Escort Vessels and Mercenaries,” The Straits Times, April 15, 2005.

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Insurers are keen to collect data on losses caused by pirate attacks. Based on these data, insurers have begun to charge increased premiums because of the piracy risk in some regions; for example, it is more difficult to obtain hull insurance in Indonesia than anywhere else in the region.34 Although piracy incidents have declined significantly since 2004, on June 20, 2005, the Straits of Malacca and adjacent ports, including other Indonesian ports (Ambon, Balikpapan, Jakarta, and Poso), were listed as war-risk areas by the Joint War Committee of the London Insurance Market, without any announcement to the shipping industry beforehand.35 According to international practice, when a vessel sails into a so-called war-risk area, its insurance coverage can be cancelled by the insurers. If a vessel intends to travel into this war-risk area, the ship owner will have to pay an extra premium to reinstate the ship’s insurance cover. Warrisk premiums are calculated as a percentage of the total value of an individual ship’s hull and machinery. For example, after the Tamil Tiger terrorist attack on Colombo’s airport, war-risk premiums for ships calling at Colombo’s port climbed as high as 0.7 percent of a ship’s value, i.e. US$500,000 per single port call for the largest container ships.36 This means that ship owners whose vessels transit the Straits of Malacca or call at Indonesian ports may have to pay for additional insurance coverage. This greatly increases costs for the shipping industry. In August 2006, considering the significant decline of piracy incidents and the strong protect from littoral states and shipping industry, the JWC removed the Straits of Malacca from the War Risk Listing.37 Pirates and the Littoral States  Piracy in contemporary Southeast Asia was fostered by interrelated political and economic factors. The poor economic situation in Southeast Asia has played an important role in the surge of piracy. The massive amount of sea traffic passing through the Straits of Malacca and the South China Sea not only led to navigational congestion in the Straits, but also imposed a negative impact on the local maritime environment, such as the degradation of

34  Jack Gottschalk and Brian Flanagan, Jolly Roger with an Uzi: The Rise and Threat of Modern Piracy, Annapolis, M.D., Naval Institute Press, 2000. 35 The Joint War Committee (JWC) represents the interests of the London marine insurance community and comprises members of the Lloyd’s Market Association (LMA) and the International Underwriting Association (IUA). Chairman of JWC is Rupert Atkin, Director of Underwriting at Talbot Underwriting. See SSA, Joint War Committee War Risk Listed Area, Singapore Shipping Association 2005 , http://www.ssa.org.sg (accessed November 1, 2005). 36  Donald Urquhart, “Malacca Strait Risk Premiums Set to Skyrocket,” The Business Times, July 5, 2005. 37  David Rosenberg and Christopher Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities”. Ocean Development and International Law, 39 (2008), pp. 51–65.

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fish habitats, and a slump in profits from fishing.38 Consequently, this aggravated the economic crisis of coastal and especially Indonesian fishermen. Several decades ago, for example, a traditional Belawan fisherman caught about 200kg of fish per week, earning about 3,300,000 rupiah (US$330), excluding operational costs, which were about 700,000 rupiah (US$70) per week. Nowadays, the size of catches has dropped considerably to 70kg per week, equivalent to earnings of 500,000 rupiah (US$50) per week. To make matters worse, operational costs have soared to 1,200,000 rupiah (US$120) per week. This means that even though fishermen can sell their fish, they still make a loss.39 Poverty has provided strong incentives for coastal people to turn to piracy as an alternative source of income. The Asian Financial Crisis in 1997–1998 further exacerbated the Indonesian economic situation, and led to a dramatic increase in piratical incidents in 2000. Apart from the poor, small-time pirates in the Straits of Malacca, criminal syndicates have also been much involved in piracy. These syndicates had networks dealing with all kinds of criminal activities, such as piracy, smuggling, human trafficking, etc. To support their operation, the criminal syndicates were often in collusion with local law enforcement officers.40 They were equipped with advanced weaponry, and had well-developed international networks through which to dispose of stolen goods. These syndicates were capable of dealing in “big stuff”—the hijacking of ships, disposal of stolen cargoes, and re-registration of ships as “phantom ships.” Obstacles in Anti-Piracy Cooperation Incentives   Piracy in Southeast Asia is generally a transnational crime involving parties or processes in more than one country. The suppression of piracy requires related states to cooperate. Since the early 1990s, the littoral countries have been cooperating in anti-piracy operations. However, divergences in national interests in the littoral states have resulted in different incentives regarding anti-piracy operations. For example, in the eyes of Indonesian officials, piracy in Southeast Asia is petty theft, which does not have a great impact on its national interest. In fact, they have a point: the majority of victims’ ships are foreign ships, not Indonesian ones. From 1991–2007, only 53 Indonesian ships were attacked, out of total 4,200 victim ships.41 Thus, the Indonesian Government is reluctant to spend money on protecting foreign users 38 Tom McCawley, “Sea of Trouble,” Far Eastern Economic Review 167: 21 (2004), pp. 50–3. 39 Anucha Charoenpo, Illegal Thai Fishing Robbed Indonesia Off Billions of Catches and Cash, Southeast Asian Press alliance, 2006, http://www.seapabkk.org/fellowships/2002/ anucha.html (accessed May 18, 2006). 40  Peter Chalk, Grey-Area Phenomena in Southeast Asia: Piracy, Drug Trafficking and Political Terrorism, Canberra: Strategic and Defence Studies Centre Research School of Pacific and Asian Studies, Australian National University, 1997. 41 IMB-PRC, Piracy and Armed Robbery against Ships: Annual Report (1991– 2007).

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of their shipping lanes who do not contribute to the cost of maintenance of navigational facilities and maritime security in the Straits of Malacca. The Malaysian Government is also unwilling to spend money on these foreign “free riders.” However, the main Malaysian ports, such as Port Klang and Tanjung Pelepas Port, are situated along the Straits of Malacca, and maritime safety and security in the Straits of Malacca are important for the Malaysian economy. The Malaysian Government cannot ignore the interests of shipping industry nor their appeal for protection. Facing similar budget constraints and insufficient maritime capability to Indonesia, the Malaysian Government has been appealing for a “Burden-Sharing Scheme,” urging other users of the Straits of Malacca, together with Japan, to share the cost of maintaining and enhancing maritime safety and security in the Straits of Malacca. Singapore, as a city-state, is greatly dependent on its ports, and considers piracy as a serious threat to its national security. Although Singapore has the highest incentive to combat piracy, however, only the southern tip of the Straits of Malacca is under Singapore’s jurisdiction, and thus Singapore cannot be of much help. In terms of incentives for combating piracy, Indonesia has the lowest incentive to join in anti-piracy operations and Singapore the highest, while Malaysia falls in between these two countries. In short, incentives regarding anti-piracy operations differ in the littoral countries. Piracy was rampant in the countries where the government had little incentive to combat it, and this is most true of Indonesian waters. Capabilities  Maritime capacities have long been a problem in Southeast Asia: the constraints in defense budgets have hampered their capabilities; the lack of funding for anti-piracy operations constitutes a bottleneck for some poor countries like Indonesia in implementing anti-piracy operations. For example, the Indonesian Navy chief said of the Indonesian Navy: “Old ships cannot sail, new ships cannot shoot.”42 With their current material capabilities, the law enforcement agencies of Indonesia cannot successfully implement anti-piracy operations. In terms of maritime capability, Indonesia is the lowest, Singapore is the highest, and Malaysia comes somewhere in between. Furthermore, sovereignty becomes a main concern in law implementation of anti-piracy patrols involving Indonesia, Malaysia, and Singapore. All the multilateral patrols in the Straits of Malacca at present are coordinated, not joint patrols, showing that trust and confidence among the littoral countries have yet to be established.43 42  Bernard Kent Sondakh, “National Sovereignty and Security in the Straits of Malacca,” paper presented at the “Straits of Malacca: Building a Comprehensive Security Environment”, Kuala Lumpur, Malaysia, October 11–13, 2004. 43 Coordinated patrol: the law enforcement agencies coordinate while patrolling within their own territorial waters, but they cannot cross national sea borders. Each law

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The Decline of Piracy Incidents This turning point of anti-piracy cooperation was the terrorist attacks on the United States on 9/11. In the aftermath of 9/11, the allegation of an existence of a piracy and terrorism nexus provides the United States with an excuse to intervene in Southeast Asia in the name of anti-terrorism. Furthermore, China’s economic boom in the last decade has made it necessary for the United States to “re-energize” its relationship with Southeast Asia.44 The United States has led the global anti-terrorism campaign, and integrated anti-piracy policies as a part of its maritime security project. The United States launched three international maritime security initiatives: the Container Security Initiative (CSI) in 2002, the Proliferation Security Initiative (PSI) in 2003, and the Regional Maritime Security Initiative (RMSI) in 2004. The aim of CSI is to identify high-risk containers before they are delivered to the United States, using screening technology in the originating ports. The purpose of PSI is “to stop trafficking of weapons of mass destruction (WMD), their delivery systems, and related materials to and from states and non-state actors of proliferation concern.”45 The CSI and PSI apply to the global scope, while the RMSI deals particularly with maritime security in the Strait of Malacca.46 In March 2004, Admiral Thomas B. Fargo, then the U.S. Pacific Command commander, unveiled the US Regional Maritime Security Initiative (RMSI) in the course of his annual U.S. PACOM testimony to the United States House of Representatives. The goal of RMSI was “to partner the region’s nations, of all manner of differing capabilities, to create a relationship to observe, monitor and intercept any transnational threats in their waters, with the use of existing international and domestic legislation.”47 Singapore welcomes American involvement in maritime security in the straits of Malacca, but Indonesia and Malaysia rebuffed U.S. offers to provide intelligence, conduct joint patrols, and send U.S. Marines into their territorial waters.48 enforcement agency has its own commander. Joint patrol: all law enforcement agencies of the participating countries constitute one taskforce and patrol together, under one commander; this taskforce is empowered to cross national sea borders. 44  Bhagyashree Garekar, “China’s Rise Prompts Us to ‘Re-Energise’ S-E Asia Ties,” The Straits Times, June 3, 2006. 45  Bureau of International Security and Nonproliferation, “Fact Sheet: What Is the Proliferation Security Initiative?” http://www.state.gov/t/isn/rls/fs/105217.htm (accessed March 3, 2007) 46 Rosenberg and Chung, “Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities”. 47  Global Security, “Regional Maritime Security Initiative” ,http://www. globalsecurity.org/military/ops/rmsi.htm (accessed July 7, 2006). 48 AP, “Malaysia, U.S. To Discuss Port Security”, USA Today, June 6, 2004 http:// www.iiss.org/conferences/the-shangri-la-dialogue/press-coverage/press-coverage-2004,/ usa-today---discuss-port-security (accessed June 2, 2006).

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After 9/11, piracy was high on the agenda of many international governmentlevel forums and meetings, such as the ASEAN Regional Forum and ASEAN meetings and Asian Security Summits. In May 2002, the Asian Security Summit or “Shangri-La Dialogue”, organized by the London-based International Institute of Strategic Studies, was held in the Shangrila Hotel in Singapore. Participants included defense ministers and security officials from India, Japan, Indonesia, the Philippines, Malaysia, Singapore, Thailand, South Korea, Australia, and New Zealand, together with US Deputy Defense Secretary Paul Wolfowitz, British Defense Minister Geoff Hoon and the Director-General of China’s Foreign Affairs Bureau, Major-General Zhan Maohai. Since the inaugural meeting in 2002, the Shangri-la Dialogue has become a key event in Asian defense diplomacy.49 At the third Shangri-la dialogue in June 2004, the United States expressed its intention not only to retain its “forward presence” in the Asia-Pacific region, but also to seek to update its military-strategic doctrines. China  Under the challenge of the United States, China changed its low profile policy, and began to take an active role in maritime security in the South China Sea. In 2002, China and ASEAN reached consensus on the Declaration on the Conduct of Parties in the South China Sea, which not only reaffirmed both sides’ commitment to maintain peace and stability in the region, but also their willingness to enhance cooperation on maritime environment protection, maritime transport and navigational safety, and fight against transnational crimes at sea. In accordance with the Joint Declaration of China and ASEAN on Cooperation in the Field of Non-traditional Security Issues, released at the 2002 China-ASEAN Summit, China and ASEAN signed a Memorandum of Understanding (MOU) on Cooperation on Non-traditional Security Issues in 2004. The objective of the MOU is: To develop practical strategies in accordance with their national laws and regulations to enhance the capacity of each individual country and the region as a whole in dealing with such non-traditional security issues as trafficking in illegal drugs, people smuggling, including trafficking in women and children, sea piracy, terrorism, arms smuggling, money laundering, international economic crime and cyber crime.50

49 IISS, The IISS Shangri-La Dialogue, International Institute for Strategic Studies, 2006 (cited June 3, 2006); available from http://www.iiss.org/conferences/the-shangri-ladialogue (accessed). 50 ASEAN Secretariat, “Memorandum of Understanding between the Governments of the Member Countries of the Association of Southeast Asian Nations (ASEAN) and the Government of the People’s Republic of China on Cooperation in the Field of NonTraditional Security Issues,” 2004 http://www.aseansec.org/15647.htm (accessed November 4, 2004).

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In 2003, China ratified the UN Treaty against Organized Crimes. In 2004, the China-ASEAN Prosecutors-General Conference was held in China, and both sides agreed to work together in the fight against crimes, including transnational maritime crimes.51 IMO Responses after 9/11 In the wake of 9/11, in November 2001, the IMO Assembly called for a review of the existing international legal and technical measures to prevent and suppress terrorist acts against ships at sea and in port.52 After the IMO Assembly, a Diplomatic Conference on Maritime Security was held at the London headquarters of the IMO on December 9–13, 2002, which was attended by 109 governments contracted to the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention).53 The Conference adopted a number of amendments to SOLAS and implemented the new International Ship and Port Facility Security Code (ISPS Code).54 In 2002, the IMO adopted several regulations of the International Convention for the Safety of Life at Sea 1974 (SOLAS). A new amendment of the Regulation 5, requires that every ship must be issued with a Continuous Synopsis Record (CSR), which is “intended to provide an on-board record of the history of the ship with respect to the information recorded therein … The CSR shall be issued by the Administrations of flag states.”55 These requirements facilitate law enforcement agencies and port authorities to identify stolen ships, and also prevent pirates from getting a complete set of shipping documents without any form of evidence. In addition, the IMO adopted a modification to SOLAS Regulation XI/3 regarding the Ship Identification Number Scheme (SINS), introduced in 1987. The new regulation required a “ship’s identification number (SIN) to be permanently marked in a visible place either on the ship’s hull or superstructure. Passenger ships should carry the marking on a horizontal surface visible from the air. Ships should also be marked with their ID numbers internally.”56 This regulation deters pirates from re-registering a hijacked ship. Furthermore, the IMO also requires all vessels of more than 500 GT to be equipped with a Ship Security Alert System (SSAS), which can send an alert from ship to shore in case of a piracy or terrorist attack on board a vessel. 51  Zhao Jianhua, “Straits Malacca and Challenges Ahead: Perspectives from Littoral and User States,” in The Straits of Malacca: Building a Comprehensive Security Environment (Kuala Lumpur: Maritime Institute of Malaysia, 2004). 52 IMO, “IMO Assembly Resolution A.924 (22),” London: International Maritime Organization, November 2001. 53 IMO, “Consideration and Adoption of the International Ship and Port Facility Security (ISPS) Code, Consideration and Adoption of the Resolutions and Recommendations and Related Matters (Solas/Conf.5/34),” London: International Maritime Bureau, 2002. 54 Ibid. 55 IMO website, http://www.imo.org/Facilitation /mainframe.asp?topic_id=388 (accessed July 4, 2007). 56 Ibid.

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Apart from all IMO measures, the IMB-PRC promotes a simple transmitter called ShipLoc, which can continually transmit a ship’s position. These devices are installed by ship owners, and even the captain and crew do not know where they are located. These tracking devices can report a vessel’s position up to 15 times a day, and costs about US$60 to US$70 a month per vessel, depending on the number of units fitted.57 Ship owners can also log on to a specific website to locate their ship. Many ships now have ShipLoc installed on board. The implementation of these IMO regulations and installment of new tracking devices on ships has helped ship owners and law enforcement agencies to track down hijacked ships. These measures strongly deter pirates from hijacking reregistering ships, and turning them into “phantom ships.” These measures have brought about the decline of “phantom ships.” ISPS Code The International Ship and Port Facility Security Code (ISPS Code) is “a comprehensive set of measures to enhance the security of ships and port facilities developed in response to the perceived threats to ships and port facilities.”58 The aim of the ISPS Code is to “provide a standardised, consistent framework for evaluating risk, enabling governments to offset changes in threat with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures.”59 The ISPS Code contains detailed security-related requirements for governments, port authorities and shipping companies in a mandatory section (Part A), together with a series of guidelines about how to meet these requirements in a second, non-mandatory section (Part B). The ISPS Code applies to ships engaged on international voyages and port facilities serving these ships.60 All the ships and port facilities belonging to this category were required to comply with the ISPS Code before July 1, 2004. In 2004, Southeast Asia witnessed the implementation of the ISPS Code. The implementation of the ISPS code not only significantly increased security awareness in the shipping industry, but also effectively deterred the source that threatens the security of ships and port facilities. For this reason, amongst others, piratical attacks in ships, ports, and anchorages declined significantly after 2004.61 Capability Building In 2002, the Malaysian and Philippine navies conducted a six-day joint military anti-piracy exercise. Furthermore, in 2002, Indonesia, 57  Straits Times “Secret Trackers Helped Vessel Recovery,” The Strait Times, February 7, 2005. 58 IMO, “What is ISPS Code?” http://www.imo.org/Safty/mainframe.asp?topic_ id=897 (accessed June 3, 2007). 59 Ibid. 60 IMO, ISPS Code, Part A, 3 Application. 61  K. Matthews, “Trade and Shipping: A Common Interest of the Asia-Pacific”, Australian Maritime Affairs, 10 (2003), p. 54.

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Malaysia, and the Philippines signed a trilateral security pact to enhance cooperation on transnational crime issues. In February 2003, Indonesia and the Philippines conducted anti-piracy drills with Japan, similar to those held between Malaysia and the Philippines.62 On July 20, 2004, Malaysia, Singapore, and Indonesia launched new coordinated patrols, the Trilateral Coordinated Patrols, or Malsindo, in the Straits of Malacca; these new coordinated patrols involved year-round patrols using ships from the littoral states.63 On May 27, 2005, the Republic of Singapore Navy (RSN) and the Indonesian Navy officially launched Project SURPIC (Surface Picture) in Batam. SURPIC is a sea surveillance system, which allows the RSN and Indonesian navies to share a common real-time sea situation picture of the Singapore Strait.64 On September 13, the three littoral states, together with Thailand, began coordinated air patrols over the Straits of Malacca to “attain maritime domain awareness over the Straits of Malacca and Singapore.”65 The three states each donated two planes for the patrols, which were known as the “Eyes in the Sky” (EiS) patrols. The aerial patrols provided a valuable supplement to Malsindo, carried out by the navies of the littoral states. 66 ReCAAP  Shortly after 9/11, in November 2001, Japanese Prime Minister Junichiro Koizumi proposed the establishment of a government-level working group to study the formulation of a regional anti-piracy cooperation agreement at the ASEAN+3 Summit in Brunei. Negotiations on the agreement continued for three years. Eventually, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) was concluded in Tokyo on November 11, 2004 among 16 Asian countries, including the People’s Republic of Bangladesh, Brunei Darussalam, the Kingdom of Cambodia, the People’s Republic of China, the Republic of India, the Republic of Indonesia, Japan, the Republic of Korea, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore,

62  France-Presse Agence, “Malaysia, Philippines Begin Maritime Exercises,” Jakarta Post, May 13, 2002. 63 AFP, “Indonesia, Malaysia, Singapore Agree to Joint Malacca Strait Patrols,” Jakarta Post, June 30, 2004. 64  Graham Gerard Ong, “Charting a Unified Course for Safer Seas,” The Straits Times, June 25, 2005. 65  MINDEF, “Launch of Eyes in the Sky (EiS) Initiative”, MINDEF News. http:// www.mindef.gov.sg/imindef/news_and_events/nr/2005/sep/13sep05_nr.html (accessed April 3, 2006). 66 ABC News, Indonesian Navy Plans Fleet Expansion to Boost Maritime Security, ABC News Online, February 12, 2005, http://www.abc.net.au/news/newsitems/200502/ s1301509.htm (accessed October 16, 2005).

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the Democratic Socialist Republic of Sri Lanka, the Kingdom of Thailand, and the Socialist Republic of Viet Nam.67 The ReCAAP agreement came into force on September 4, 2006; however, the two key littoral states of the Straits of Malacca, Malaysia and Indonesia, are yet to ratify the agreement. The ReCAAP has three aims, or three pillars: information sharing, capacity building, and cooperative arrangements. The key pillar of the ReCAAP was the establishment of the Information Sharing Center (ISC). The ISC is a government-level international organization that aims to facilitate communication and information exchanges between member countries, and improve the quality of statistics and reports on piracy and armed robbery against ships in the region.68 The ISC, located in Singapore, is run by a Japanese Executive Director, Yoshiaki Ito, with a number of staff from member countries. Conclusion Although piracy and terrorism have some similarities, so far there has been no evidence to prove piracy and terrorism share a nexus.69 Intriguingly, after 9/11, the myth of piracy and terrorism nexus has integrated anti-piracy cooperation in the Straits of Malacca and the South China Sea into the global anti-terrorism framework. The myth has also driven the littoral states to shift their paradigms on anti-piracy policies, thus changing the reality of this region tremendously. Incentives in and capabilities of anti-piracy cooperation in the littoral countries have been enhanced. Malaysia and Indonesia enhanced their maritime capabilities in order to show that they were capable of safeguarding their own waters, and to prevent foreign navies from intervening in the name of protecting the Straits of Malacca. From 2002 onwards, the littoral states enhanced bilateral and multilateral patrols, with such initiatives as Malsindo patrols and the EiS patrol, which were sufficient to reduce piracy on the open sea.70 Against this backdrop, the first government-level organization amongst 16 Asian countries, the ReCAAP, was concluded in 2004. The Information Sharing Center of ReCAAP was set up in Singapore. Although Indonesia and Malaysia

67  MFA, Singapore, “The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RECAAP),” Singapore: the Ministry of Foreign Affairs, April 28, 2005. 68 Ibid. 69  Mark J. Valencia, “‘Piracy and Terrorism in Southeast Asia: Similarities, Differences, and Their Implications”, in Piracy in Southeast Asia: Status, Issues, and Responses, eds Derek Johnson and Mark Valencia, Singapore: Institute of Southeast Asian Studies, 2005, pp. 77–102. 70 AFP, “Indonesia, Malaysia, Singapore Agree to Joint Malacca Strait Patrols,” Jakarta Post, June 30, 2004.

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have yet to ratify the ReCAAP agreement, they are cooperating with the ISC at the operational level. In addition, the implementation of the IMO International Ship and Port Facility Security Code (ISPS code), which provide a standardized and consistent maritime security framework for ships and port facilities, has significantly reduced the opportunities for crimes to be committed at ports and anchorages. The ISPS Code was implemented in port facilities in Southeast Asia in 2004, leading to the significant decline in piracy incidents.71 As a result of these initiatives, over three years, from 2002 to 2004, pirates lost their crime scenes at ports, anchorages, and on the open sea. Eventually, piracy declined significantly in the Straits of Malacca and the South China Sea after 2004 and this decline continues.

71 IMO, “What is the ISPS Code?”, http://www.imo.org (accessed March 1, 2007).

Chapter 6

Commentary: A Regional Perspective on South China Sea Passage Security WU Shicun

Overview of Passage Security in the South China Sea Passage through the South China Sea plays an important geopolitical and geoeconomic role, as it shapes the security pattern in the region. From a global point of view, its strategic location makes it a hot spot for divergent interests. As an increasingly strong force in the area, China has to pay attention to and safeguard travel in the South China Sea for the sake of its own security and development. China should cooperate with other countries to ensure safe passage through the waters for the benefit of all parties. As an important component in regional security, passage security in the South China Sea involves both traditional and non-traditional factors. China, as an emerging force in the region, emphasizes security and development and is keenly aware of the challenges ahead. Traditional Security Factors Southeast Asian countries are situated in geographically strategic positions. Due to political instability and terrorist threats in recent years, some ASEAN members face grim situations in terms of internal and external security. To respond to such challenges, ASEAN members are motivated to strengthen their military power. This highlights the leading role of traditional security strategies in spite of the fact that the Cold War has ended and ASEAN countries are no longer a strategic hot spot between Communist and Western camps. Due to the relatively weak position of ASEAN members in terms of their overall political, economic, and military power, as well as the vested strategic interests of external forces in the region, it is only natural for ASEAN members to develop multilateral check-and-balance mechanisms by cooperating with other countries. Consequently, the United States has staged a high-profile comeback into   Wu Shicun, “Security in South China Sea”, Cross-Strait Conference on South China Sea, Taipei, November 2007.   See “Landmark Pact on Spratly up for Signing”, The Manila Times, November 4, 2002.

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the region by signing agreements with several ASEAN members on combating terrorism and conducting joint military exercises. The U.S.-led regional antiterrorism center in Malaysia is already in operation and the United States Navy and Air Force bases in the area are functioning well. In addition, the U.S. has taken concrete steps towards renting Vietnam’s Cam Ranh Bay. As the most important provider of investment and development aid to Southeast Asia, Japan attributes 16 percent of its total foreign trade to the region. It is also the largest trading partner for some Southeast Asian countries. In addition, 10 percent of the crude oil and 80 percent of the natural gas consumed in Japan are supplied by ASEAN members and 53 percent of Japan’s imports are transported through the South China Sea. Out of its own interests and in response to requests for intervention from ASEAN members, Japan has remained highly alert regarding the security situation in the South China Sea. Through the adoption of the Special Measures Law for Humanitarian and Reconstruction Assistance in Iraq, the Anti-Terrorism Special Measures Law and the Military Emergency Law, Japan has legalized the deployment of its troops overseas. This is a clear indication of Japanese motives towards becoming a strong military power. India has also begun to intervene in the important water channel. After its nuclear testing, India reformulated its national security strategy to claim strategic interests stretching from the Arab Sea to the South China Sea. In spite of significantly improved bilateral relations and reduced tension on land, the rivalry between China and India at sea has intensified. India’s marine operations have revealed the country’s ambition of becoming a new force in shaping the security situation, which will inevitably have a bearing on the activities of coastal states in the South China Sea, adding a new level of complexity in regards to regional security. With the further development of its navy, India will be able to play a more influential role in the Malacca Straits and the South China Sea.

 Yao Jianguo, “US military comeback to Southeast Asia in the name of combating terrorism”, Contemporary World 8 (2002) (in Chinese).  Yu Hongyuan, “Geo-political Considerations of the US in Combating Terrorism in Southeast Asia”, Contemporary Asia-Pacific, 7 (2007) (in Chinese).   Zhang Yuan, “Complex Situation in South China Sea from Reinforced US, Japanese and Indian Military Presence”, Eastern Outlook Weekly 1 (2004) (in Chinese).  The National Diet of Japan passed the Anti-terrorism Special Measures Law (with a valid duration of two years) in October 2001 in the wake of the 9/11 terrorist attack, which provides the legal basis for sending troops overseas. The Law extends the scope of activities by Japan’s Self-Defense Force to all international high seas and foreign territories upon the consent of the country concerned.   Jia Yu and Zhang Haiwen. “Maritime situation around China”, China Ocean News, April 20, 2005 (in Chinese).

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Non-traditional Security Factors According to International Maritime Bureau reports over recent years, the area around Somalia is the most dangerous and sea territories around Indonesia, Bangladesh, and India are vulnerable to pirate attacks. It is emphasized in those reports that attacking oil tankers and merchandise ships with dynamite-loaded boats represents a new trend in marine terrorism and piracy by illegal armed forces which are very difficult to control once initiated. The International Maritime Bureau calls for heightened security efforts by national governments to reduce such assaults. This emphasizes the serious threat posed by pirate attacks, which becomes even more complex when mixed with terrorism. Since the 1990s, especially after the Asian financial crisis, piracy has become quite rampant through the waterway. The water territories in Southeast Asia, particularly in the Malacca Straits, have become the most pirate-infested waters in the world. However, due to measures taken by national governments in the region, pirate attacks have decreased. According to the annual report of the International Maritime Bureau, altogether there were 239 reported pirate attacks in 2006. This number includes 88 attacks in the South China Sea, 50 attacks in the Indonesian water territories (down from 79 in 2005), 11 attacks in the Malacca Straits, and 10 in Malaysian water territories. Other illegal activities at sea include armed smuggling, drug trafficking, and cross-border crimes. The safety of transportation and the proliferation of insensitive and sensitive materials constitute other important issues of concern because sea routes are also used to transport materials for weapons manufacturing. This may involve the movement of nuclear materials and/or hazardous chemical materials for the manufacture of weapons of mass destruction. In transit, these materials are vulnerable to safety problems and are at risk of robbery or attack by pirates and terrorists. With the development of the global economy, the sea route plays an increasingly important role as a chief channel for the transportation and proliferation of classified and sensitive materials. The negative effects generated have undermined the benefits of marine transportation, posing a serious challenge to regional security and even world peace. For instance, as nuclear energy is used on the mainland China, Taiwan, Japan, and North Korea, the transportation of raw nuclear material and waste by sea is causing an increasingly serious threat to water lanes. As such, with the advent of terrorism on a global scale and a building consensus regarding the prevention of nuclear proliferation, waterways will undoubtedly become an important arena for checking nuclear proliferation.10

  Source: Yearly Report of International Maritime Bureau 2006.   Ma Yingjie and Jiang Lili, “Anti-proliferation Safety Proposal and the Right of Visit at Sea”, Ocean Information (in Chinese), Issue 3, 2005 (in Chinese). 10  Li Xiaojun, “Legitimacy and Risks of US Security Initiative against Nuclear Proliferation”, Academic Exploration, 1 (2007).

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Under the excuse of limited domestic resources, Japan has long been processing nuclear waste in order to make full use of nuclear sources of energy. To extract plutonium from nuclear waste, Japan has signed contracts with stateowned nuclear waste treatment plants in France and the UK. For the past three decades or so, several hundred tons of nuclear wastes have been shipped from Japan to Europe for post-treatment; the extracted plutonium and leftover solid residue have been returned to Japan via the sea.11 Although Japan has already moved all of its nuclear waste to the UK for post-treatment, over 3,000 tanks of highly radioactive solid residue are still waiting to be shipped from the UK and France back to Japan,12 requiring 15–30 shipments over the next 15 years.13 As shipments through the South China Sea are increasingly threatened by pirate and terrorist attacks, the safety hazards of nuclear waste transportation are evident. If leaked, long-lasting and extensive radiation will result; disastrous for humans, not to mention other biological organisms. For this reason, countries along these sea routes have protested strongly against the transportation of such materials. Each day, a total of 10.3 million barrels of crude oil are transported through the Malacca Straits. 87 percent of the oil going to Japan and Korea and over 89 percent of the oil being delivered to Taiwan travel through the important waterway. Given the sheer amount of oil being transported, it is not surprising that oil spills occur from time to time. Due to the lack of effective cooperative mechanisms among the different countries concerned, such accidents are often not dealt with in a timely and efficient manner, thus seriously jeopardizing passage security and the marine ecosystem. These non-traditional security problems directly endanger passage security in the South China Sea and pose serious threats to China’s security and development as well as the economic and social development in Southeast Asia as a whole. Difficulties in Security Cooperation in the South China Sea The Asia-Pacific region is enjoying the momentum of developmental growth with China functioning as a locomotive driving Asia’s economy. Given the strategic importance of passage security in the South China Sea and the mounting risks of assault on key sea lanes, countries in the region have stepped up their efforts in bilateral and multilateral cooperation in order to prevent terrorist attacks and the proliferation of weapons of mass destruction. As the complex situation gives rise to both opportunities and challenges in regional security cooperation, breakthroughs 11  http://www.nci.org under “Pu Sea Shipments”, December 23, 2002 (accessed November 16, 2007). 12 Ibid. 13  Paul Leventhal and Steven Dolley, Understanding Japan’s Nuclear Transports: The Plutonium Context, available at http://www.nci.org under “Pu Sea Shipments”, December 23, 2002 (accessed November 16, 2007).

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should be achieved in passage security collaboration by leveraging on various positive factors. The “China Threat” Argument The rising political, economic, and military power of China has indeed increased geopolitical pressure on other entities in the region. Consequently, the “China Threat” theory was once widely popular in Southeast Asia. This shows that the Cold War mentality is still deeply entrenched, which has led some countries to view China as an ambitious rival for dominance over the South China Sea. Nevertheless, as an emerging power with a strong sense of responsibility, China represents a constructive force for regional security. Chinese leaders have explicitly expressed on multiple occasions that China has no intention to fill the so-called “strategic vacuum.” With the support of the country’s booming economic development and overall social stability, China has adopted diplomatic initiatives to promote a new security outlook in order to improve the general security situation in the South China Sea region.14 Chinese leaders have visited ASEAN members, signed political protocols, and maintained a political stance to conduct dialogues and cooperation with all parties concerned. China has also sought to establish confidence-building mechanisms through the ASEAN Regional Forum. Guided by the good neighbor and friendship policy put forth by President Hu Jintao, China follows a pragmatic foreign policy to facilitate higher levels of economic, security, and political cooperation in Asia.15 Therefore, China represents opportunities, rather than threats, to Southeast Asia. Countries concerned should work jointly with China to effectively strengthen security in the region. Clash of Interests The co-existence of traditional and non-traditional security factors and entangled strategic interests have resulted in a lack of trust and conflicting political and economic interests among different countries in the region. The Spratly Islands are a highly contested group of lands that have garnered dispute and aggression among seven parties who claim sovereignty over the area. Due to a lack of strong organization for regional security, as well as an absence of commonly accepted guidelines for dispute settlement and/or cooperative memoranda for avoiding marine accidents, the occurrence of conflicts is not surprising. The fight for influence or even permanent dominance over the sea lanes in and out of the region

14  Li Dongyan, “China’s new security outlook”, Journal of Chinese Academy of Social Sciences, February (2007) (in Chinese). 15  Zhu Yunlong and Miao Suoqun, “Fruitful Results of China’s Good Neighbor and Friendship Policy”, Xinhua Net, April 19, 2005.

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has resulted in heavier military spending and reinforced naval power.16 Such conflicting interests have rendered passage security in the South China Sea subject to the influence of a host of interwoven variables. It seems that in the foreseeable future, this clash of interests will not fundamentally change. Freedom of Navigation and Innocent Passage Since the UN Convention on the Law of the Sea was adopted in 1982, freedom of navigation and innocent passage have become important issues related to passage security. However, the United States, as the world’s sole superpower, has not yet ratified the Convention. Consequently, the United States, and several other countries, still use the traditional three nautical mile mark as the extent of a state’s jurisdiction and believe that military or commercial vessels have the right to pass through foreign territorial waters without prior notification. This will result in possible clashes, thus directly undermining the principle of establishing a new marine order based on the Convention.17 China and Regional Cooperation With the development of regional integration and the global economy, particularly the development of the China–ASEAN Free Trade Area, passage security in the South China Sea has taken on new significance for China, as it plays an extremely important role in China’s “going global” strategy. To ASEAN members and extraregional forces, ensuring passage security is a strategic and pragmatic choice. Since the 1990s, particularly after the 9/11 terrorist attack, the security situation in the region has substantially changed. Based on the consensus of jointly contributing to regional security and development, China shares the responsibility with other countries in the region for safeguarding passage security in the South China Sea. Political and Economic Basis for Regional Cooperation China and ASEAN have enjoyed strengthened ties, growing mutual trust, and continued cooperation. In November 2002, China and ASEAN signed the Declaration on the Conduct of Parties in the South China Sea and the Joint Declaration of ASEAN and China on Cooperation in the Field of Non-traditional Security Issues. In October 2003, China acceded to the Treaty of Amity and Cooperation in Southeast Asia. These diplomatic moves provide the basis for joint

16 Cao Yunhua, “Changing Sino-US relationship: Southeast Asia in Dilemma”, Lianhe Zaobao, October 5, 2001 (in Chinese). 17  Gao Zhiguo, “Reasons and Results of US Refusal to Ratify the UN Convention on the Law of the Sea”, China Ocean News, 1012 (in Chinese).

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efforts between China and ASEAN in cracking down on illegal activities at sea.18 Moreover, with heightened awareness of security, ASEAN members have begun cooperating amongst themselves to combat terrorism. The Asian financial crisis in the late 1990s swept through ASEAN member countries and plunged most of them into economic recession. In such a situation, China’s refusal to devaluate its currency showed its sense of responsibility and served as a crucial factor in helping ASEAN members restore their economies.19 In addition, the development of the China–ASEAN Free Trade Area represents both a historic opportunity and a huge challenge. The economic and industrial restructuring, that would inevitably ensue, calls for sound political ties and economic cooperation between ASEAN and China. Therefore, ASEAN members have not only improved its investment climate by combating terrorism, but also developed a favorable international environment by readjusting its political relations with relevant countries. As a regional organization, ASEAN must make efforts to both understand and be understood by other countries, thereby inviting cooperation. Although ASEAN and China are competing for foreign investment in several industries, a stable international environment and a potential market are beneficial to both sides.20 The above analysis shows the political and economic basis for bilateral cooperation. Based on mutual trust, security cooperation in the South China Sea would mark a step forward in the development of China–ASEAN ties. Legal Basis Regional cooperation in the South China Sea must be based on the UN Charter, the UN Convention on the Law of the Sea and other related UN legal documents on combating piracy and terrorism. These international laws not only spell out rights and obligations for parties concerned, but also support marine rules and procedures to ensure security maintenance. Although military forces are mainly responsible for cracking down on piracy and terrorism, their activities are drastically different from those in war times, for their purpose is to ensure marine passage security by controlling potentially threatening factors. The political documents signed between China and ASEAN reflect respect for the law and a spirit of cooperation. For instance, in the Declaration on the Conduct of Parties in the South China Sea, the parties concerned reiterate the basic principles of handling relations between different countries based on the UN 18  Wu Shicun and Ren Huaifeng, “More than a Declaration: A Commentary on the Background and the Significance of the Declaration on the Conduct of the Parties in the South China Sea”, Chinese Journal of International Law, 2003. 19 Chen Daofu, “China’s Financial Reform from the Perspective of Southeast Asian Financial Crisis”, China Development Watch, September (2007) (in Chinese). 20  Wang Lanfen and Lin Lin, “Analysis of Competition and Cooperation between China and ASEAN”, Contemporary Finance and Economics, 12 (2004) (in Chinese).

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Charter, the UN Convention on the Law of the Sea (1982), the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence and other universally recognized norms of international law.21 Moreover, in the Joint Declaration on Cooperation in the Field of Non-traditional Security Issues, China and ASEAN “confirm that cooperation should be conducted on the basis of observing the Five Principles of Peaceful Coexistence and other universally recognized norms of international law, which are embodied in the Charter of the United Nations and the Treaty of Amity and Cooperation in Southeast Asia, and respect the legal systems of all countries.” These political documents outlining regional cooperation are legally binding, based on which follow-up activities can be carried out to consolidate a peaceful and secure regional environment and promote mutual trust and economic development. Conclusion Concerning the cooperation in the field of non-traditional security issues, China and ASEAN have made concrete achievements. This can be seen in the two regions’ cooperative efforts, which include the ASEAN and China Cooperative Operations in Response to Dangerous Drugs in 2000 and in 2001, the ministerial meeting on controlling drug abuse held between China, Laos, Myanmar, and Thailand, at which the Beijing Declaration was adopted. With the Statement of the ASEAN Ministerial Meeting on Transnational Crime (AMMTC) in 1997, the 2001 ASEAN Declaration on Joint Action to Counter Terrorism adopted by ASEAN leaders, the Joint Communiqué of the Special ASEAN Ministerial Meeting on Terrorism in 2002, and the Agreement on Information Exchange and Establishment of Communication Procedures between Cambodia, Indonesia, Malaysia, and the Philippines, cooperation in various forms through bilateral mechanisms has been greatly enhanced.22 It can be concluded that mutual support between China and ASEAN in the field of non-traditional security issues is making headway, paving a tangible path for the establishment of regional security mechanisms in the future.

21  See the Declaration on the Conduct of Parties in the South China Sea. 22  Ding Yanping and Zhang Jing, “Cooperation between China and ASEAN Members in Non-traditional Security Areas from a New Perspective”, Journal of Yinchuan Party School, 6 (2006) (in Chinese).

Part III Regional Cooperation Combating Maritime Terrorism and Piracy

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Chapter 7

Regional Maritime Security Initiative (RMSI) and Enhancing Security in the Straits of Malacca: Littoral States’ and Regional Responses Yann-huei SONG

Introduction The Regional Maritime Security Initiative (RMSI), proposed in 2004 by Admiral Thomas Fargo, former Commander of U.S. Pacific Command, is one of the American maritime security programs and initiatives to promote regional cooperation to improve maritime security in the East Asia and Pacific region, especially in the Straits of Malacca and Singapore. The main goal of RMSI is to develop a partnership of willing nations, working together, under international and domestic law, to identify, monitor, and intercept transnational maritime threats, in particular, piracy, armed robbery, and terrorist attacks at sea.

 Other maritime security programs and initiatives include Advance Electronic Cargo Information (24-House Rule), Container Security Initiative (CSI), the Magaports Initiative, Transshipment Country Export Control Initiative (TECI), Proliferation Security Initiative (PSI), Maritime Transportation Security Act (MTSA) and the International Ship and Port Facility Security (ISPS) Code, International Port Security Program, Customs—Trade Partnership Against Terrorism (C-TPAT), U.S. Coast Guard International Training Programs, Smart Box Initiative, 96-House Advance Notice of Arrival, Advance Passenger Information System Rule (APIS), the National Plan to Achieve Maritime Domain Awareness, the Global Maritime Intelligence Integration Plan, the Maritime Operation Threat Response Plan, the International Outreach and Coordination Strategy, the Maritime Infrastructure Recovery Plan, Maritime Transportation System Security Recommendations, the Maritime Commerce Security Plan, and the Domestic Outreach Plan. See United States Department of State, International Outreach and Coordination Strategy for the National Strategy for Maritime Security, November 2005, available at: http://www.state.gov/r/pa/prs/ps/2005/57280.htm (accessed 1 June 2006).   For main threats to U.S. maritime security, see The White House, The National Strategy for Maritime Security, September 2005, Section II, pp. 3–6, available at: http:// www.whitehouse.gov/homeland/ maritime-security.html (accessed 1 June 2006).

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The Straits of Malacca, 600 miles long and only 1.5 miles wide at its narrowest point, is a narrow stretch of water between peninsular Malaysia and the Indonesian island of Sumatra. From an economic and strategic perspective it is one of the most important shipping lanes in the world, the equivalent of the Suez Canal or Panama Canal. The Straits of Malacca form the seaway connecting the Indian Ocean with the South China Sea and the Pacific Ocean, linking three of the world’s most populous nations: India, Indonesia, and China. Annually, approximately 50,000 large vessels, and daily an average 45 oil tankers pass through these Straits. Between one-fifth and one-quarter of the world’s sea trade, half of global oil shipments carried by sea, and over 80 percent of the oil and gas imports of China, Japan, Taiwan and South Korea come through the Straits of Malacca. In recent years, the Straits of Malacca has become a target for piracy and armed robbery against vessels because of high volume of transiting traffic, its geographical nature, significant political and economic instability in the area, and the lack of resources and weak maritime law enforcement capacity of the strait littoral states. Since the September 11 2001 terrorist attacks in the United States, increasing attention has been given to the threat of maritime terrorism, proliferation of weapons of mass destruction (WMD), and the security of the maritime transport sector in general. As a result of this changed strategic environment in the Straits of Malacca area there has also been a growing concern among the littoral states over the need to establish a burden-sharing arrangement, based on Article 43 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS); this is intended to help cover the gradually increasing cost of providing essential maritime infrastructure in the Straits of Malacca, and over the years, to keep the waters clear of pollution, safe for navigation, and free from threat of pirate and terrorist attacks. The user states, especially China, Japan, South Korea, and Taiwan, which are dependent on the Straits for the smooth and efficient transit of cargo, in particular, energy supplies, also raised their concerns about the safety and security of their vessels passing through the Straits and accordingly demanded more security measures taken by the states that border the Straits of Malacca. Other user states that are the major maritime powers, such as the United States, also raised their maritime security concerns regarding the potential threat of transnational crimes, maritime terrorism, and armed attacks against their naval and commercial vessels traversing through the Straits. As a result, user states possessing maritime powers  C.S. Kuppuswamy, “Straits of Malacca: Security Implications,” Paper no. 1033, South Asia Analysis Group (SAAG), June 18, 2004.  The Convention opened for signature on December 10, 1982, and entered into force on November 16, 1994. For the text see UN Doc. A/Conf.62/122, October 7, 1982, reprinted in International Legal Materials 21(November 1982): 1261–354. As of April 28, 2006, it had 149 contracting parties.  Thomas Orszag-Land, “UN Launches Global Initiative to Defend Malacca Straits,” Jane’s Terrorism & Security Monitor, January 19, 2005.

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began to explore the possible means of becoming involved more directly in the management of security matters in the Straits of Malacca. These efforts, however, were regarded by the littoral states as an attempt to “internationalize” the safety and security of the Straits of Malacca. In response, the littoral states reiterated their positions that enhancing safety and security, and managing environmental issues in the Straits are primarily their responsibility. The purpose of this chapter is to examine the development of the U.S.proposed RMSI and its relations with, and influence on the national and regional efforts undertaken to help enhance security in the Malacca Straits by focusing, in particular, on the littoral States’ responses to the American security initiative. Littoral States’ Perception of the RMSI The three littoral states’ perception of and initial reactions to the U.S.-proposed RMSI are examined below. Indonesia Shortly after the media’s disclosure of the U.S. plan to deploy troops in the Straits of Malacca, Indonesia’s Ministry of Foreign Affairs issued a statement on the official position of the country in its opposition to the plan, arguing that Indonesia and Malaysia, in accordance with the 1982 UNCLOS, were solely responsible for guarding the Straits of Malacca. Nugroho Wisnumurti, former Director General for Political Affairs of Indonesia’s Ministry of Foreign Affairs, pointed out that “[f]ighting terrorism through regional cooperation in Southeast Asia, or any part of the globe for that matter, is something to be applauded. However, fighting terrorism in the Malacca and Singapore Straits by allowing the use of military force by any country other than the coastal states (Malaysia, Indonesia and Singapore) is another matter.” Indonesian Navy Chief Adm. Bernard Kent Sondakh joined the opposition, calling the idea of sending special operations troops to the Straits of Malacca under the RMSI “baseless.” During the Second Indonesia-United States Security Dialogue, held in Washington, D.C., April 22–23, 2004, the Indonesian delegation sought clarification regarding the U.S. policy towards the Straits of Malacca. In response, the U.S. delegation clarified the concept of RMSI and gave assurances that the United States would respect Indonesia’s sovereignty over its

 Tiarma Siboro, “RI Opposes U.S. Deployment in Malacca Straits,” Jakarta Post, April 7, 2004.  Nughoho Wisnumurti, “Upholding Security in the Malacca Straits,” The Jakarta Post, April 12, 2004.   “U.S. Initiative in Malacca Strait ‘Baseless’: RI Navy,” The Jakarta Post, April 12, 2004.

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waters. The U.S. delegation further agreed to continue to consult with Indonesia and other regional countries. In June 2004, when attending the 3rd Asian Security Conference (known as the “Shangri-La Dialogue) in Singapore, U.S. Defense Secretary Donald H. Rumsfeld told a group of Asian reporters that the RMSI was an idea in its early stage and it would not threaten sovereignty. The Secretary clarified that “[a]ny implications that it would impinge in any way on the sovereign territorial waters of some countries would be inaccurate.”10 Navy Adm. Walter F. Doran, the Pacific Fleet commander, who accompanied Secretary Rumsfeld at the Conference, also told the reporters that Admiral Fargo’s testimony did not imply that establishing new U.S. bases and units or stationing elite forces in the region were part of the RMSI. Admiral Doran pointed out that the main idea of the initiative was to build on normal navy-to-navy contacts and discussions to raise maritime situational awareness in the Asia-Pacific region.11 Despite the clarification made by the high-ranking officials of the U.S. Government, including Admiral Fargo and Defense Secretary Rumsfeld, Indonesia’s concerns over the possible intervention by foreign maritime powers, in particular, the United States, in the management of the Straits of Malacca remained. As reported, Indonesia was displeased with joint naval patrols conducted by the navies of India and the United States for several months in 2003.12 The reason behind was Indonesia’s worries about the U.S. involvement in a broader strategy that favored a permanent Indian presence in Southeast Asia with the endorsement from Singapore.13 According to another analysis, while the U.S. Government kept clarifying that RMSI was still in its early stage and the initiative was mainly concerned with sharing information rather than deploying U.S. troops in the Straits of Malacca, Indonesia continued to raise its objection to the U.S. proposal, mainly because of its long-standing policy of seeking regional solutions to regional security problems, and its government’s need to appease a large, anti-American nationalist and Islamist domestic political audience. In addition,

 Embassy of the Republic of Indonesia, Washington, D.C., Press Release, Joint Statement, Indonesia–U.S. Security Dialogue, April 23, 2004. 10  John D. Banusiewicz, “Officials Clarify Maritime Initiative Amid Controversy,” American Forces Information Service (afis) News Article, US Department of Defense, June 4, 2004, available at: http://www.defenselink.mil/news/Jun2004/n06042004_200406048. html (accessed 1 June 2006) 11 Ibid. 12  See Vivian L. Forbes and Encik Mokhzani Zubir, “Ensuring Security in the Malacca Strait: Solutions Offered and Suggested Implementation,” paper presented at LIMA International Maritime Conference on “Enhancing Security in the Straits of Malacca: Amalgamation of Solutions to Keep the Straits Open to All,” Awana Porto Malai, Langkawi, Malaysia, December 4–5, 2005, p. 4. 13 Ibid.

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Indonesia perceived that the U.S. proposal represented a challenge to regional self-management of security issues.14 Malaysia The government of Malaysia, taking the same position as Indonesia’s, objected strongly to the U.S. idea of sending troops to help patrol in the Straits of Malacca under the proposed RMSI. Yab Dato Seri Najib Tun Razak, Malaysia’s deputy prime minister and defense minister, stated in early April 2004 that “[i]n principle, ensuring the security of the Straits of Malacca is the responsibility of Malaysia and Indonesia and for the present we do not propose to invite the United States to join the security operations we have mounted there.”15 The minister continued to say that “[e]ven if they [the Americans] wished to act, they should get our permission, as this touches on the question of our national sovereignty.”16 Najib Razak denied that Malaysia and Indonesia needed help from non-littoral states to police the Malacca Straits which, despite periodic raids by pirates on smaller cargo vessels, were generally safe for shipping. Moreover, he pointed out that while Malaysia maintained good relations with the United States, including joint military training, and that the U.S. vessels, including warships, were free to use the Straits, but to launch military operations the United States should first obtain permission from the governments of Malaysia and Indonesia.17 Mohamed Nazri Abdul Aziz, a minister in Malaysia’s Prime Minister’s Department, warned that if the littoral states did not safeguard properly security in the Straits of Malacca, foreign powers might intervene in managing the security matters in the Straits, which would pose a threat to Malaysia’s sovereignty.18 In June 2004, while continuing to reject the U.S. idea of sending troops to the Straits of Malacca, Malaysia agreed to discuss the issue of protecting the Straits from piracy and potential terrorist attacks with the United States.19 In the same month at the 3rd Shangri-La Dialogue, Malaysia again stressed its opposition to U.S. military presence in defending the Straits of Malacca and Southeast Asia from terrorist attacks but also agreed to the principles of sharing intelligence and 14  “Piracy and Maritime Terror in Southeast Asia: Dire Straits,” IISS Strategic Comments, 10: 6, July 2004. 15  Mark Baker, “Malaysia Rebuffs US Sea Force Plan,” The Age, Global Policy Forum, April 6, 2004, available at: http://www.globalpolicy.org/empire/intervention/2004/ 0406usmalacca.htm (accessed); “Malaysia Rejects US Help to Guard Malacca Straits against Terrorists,” AFX-Asia, April 4, 2004; V. Ramanan, “US cannot Deploy Forces in Straits,” New Straits Times (Malaysia), April 5, 2004. 16 Ibid. 17 Ibid. 18  Donald Urquhart, “Asian Coast Guard Meeting to Focus on Terrorism Threat; Malaysia Announces Creation of Coast Guard,” The Business Times, June 17, 2004. 19  “Malaysia Rejects U.S. Troops for Malacca Straits, but Agrees to Discuss Safety of the Crucial Waterways with Washington,” Associated Press, June 6, 2004.

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blocking terrorists’ financial and logistical networks. Najib Tun Razak reminded the participating defense ministers of Malaysia’s concerns over the negative impact of foreign military presence on security and political stability in the region, because it would “set us back in our ideological battle against extremism and militancy.”20 The government of Malaysia was aware of Singapore’s strong support for the U.S.-proposed RMSI and therefore accused Singapore of calling on foreign powers to intervene in the security matters in the Straits of Malacca. Malaysia also disagreed with Singapore’s security assessment with regard to the link between pirate attacks and maritime terrorism. Malaysia did not believe that the problem of piracy in the Straits of Malacca was critical; what occurred were only minor robberies, as pointed out by Rahim Husin, Malaysia’s Director of the Maritime Security Policy Directorate. In addition, Malaysia claimed that its law enforcement agencies were more than capable to ensure security in the Straits without intervention from anyone.21 Singapore Since the September 11 attacks, Singapore has been working closely with the United States to deal with the potential threats posed by terrorism and WMD proliferation. Similar to the actions taken by Japan, Singapore participates actively in the U.S.-led security initiative, such as the CSI and PSI. In August 2005, Singapore hosted the multinational PSI interdiction training exercise, Deep Sabre, in the South China Sea. Singapore also signed a new framework agreement with the United States for a strategic cooperation partnership in defense and security. The agreement expands the scope of bilateral cooperation between the two countries in such areas as anti-terrorism, anti-proliferation of WMD, joint military exercises and training, policy dialogues, and defense technology.22 Bearing in mind the close security relations between Singapore and the United States, it is no surprise to see Singapore giving its strong support for the U.S.-proposed RMSI. As stated earlier, shortly before the announcement of the RMSI, Admiral Fargo had talks with the government of Singapore and obtained its support for the initiative.23

20  See Shangri-La Dialogue 2004—A Special Press Summary, Executive Summary, June 10, 2004, available at: http://www.vic-info.org (accessed 1 June 2006). 21  Shahrullizan Rusli and Noor Soraya Mohd Jamal, “American Intervention on Piracy in Straits of Malaka Not Needed,” Bernama The Malaysian National News Agency, April 28, 2004. 22  For the Strategic Framework Agreement Between the United States and the Republic of Singapore for a Closer Cooperation Partnership in Defense and Security, signed on July 12, 2005; visit: http://www.us-asean.org/DefSec/SFA.doc (accessed). 23  “Singapore confirms Talks with US over Troops in Malacca Straits,” AFX.COM, April 5, 2004.

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In the area of managing security in the Straits of Malacca, Singapore complained frequently about the lack of political will and weak law enforcement capacities of the other states that border the Malacca Straits to take effective actions to counter the threat posed by transnational crimes, such as piracy and armed robberies a sea. To enhance the safety and security in the Straits, Singapore has been calling regional states and interested extra-regional powers to put pressure on the littoral states, in particular Indonesia. Singapore’s perception of maritime security threat has been greatly reinforced by the attacks on U.S.S. Cole in 2000, MV Limburg in 2002, and Dewi Madrim in 2003. It has become Singapore’s big worry that pirate attacks might be linked to terrorist organizations and launch terrorist attacks in the Malacca Straits area. Singapore’s reactions to the U.S.-proposed RMSI were first reflected in the statement made by its Defense Minister Teo Chee Hean in April 2004, saying that “the task of safeguarding the regional waters against maritime terrorism was complex and no single State had the resources to deal effectively with this threat.”24 In response to this statement, Malaysia’s Foreign Minister Datuk Seri Syed Hamid pointed out that if Singapore had concerns about security in the Straits of Malacca, it should discuss first with the littoral states of Malaysia and Indonesia.25 In May 2004, Deputy Prime Minister and Coordinating Minister for Security and Defense, Dr. Tony Tan Keng Yam, further elaborated Singapore’s concerns over the threat of maritime terrorism in Southeast Asia and the lack of security in the Straits of Malacca. Tony Tan stated that “[t]he possible nexus between piracy and maritime terrorism is probably the greatest concern to maritime security.”26 To counter the threat posed by piracy and maritime terrorism, Singapore advocates a comprehensive approach that covers three overlapping domains, namely domestic, regional and international. Domestically, each country can tighten up its port security by putting in place additional or enhanced measures. Regionally, the responsibility of the littoral states for maritime security in the region must be recognized. At the same time, the littoral states should take unified and concerted action to enhance the security of strategic waterways. Internationally, key players such as the UN, International Maritime Organization (IMO) and other countries that have a stake in the safety and security of international waterways must be involved to protect the important sea lines of communications against pirate attacks and maritime terrorism.27

24  P. Vijian, “M’sia Continues to Bolster Maritime Security,” Financial Times, April 27, 2004. 25 Ibid. 26  See the speech made by Singapore Deputy Prime Minister and Coordinating Minister for Security and Defense, Dr. Tony Tan Keng Yam, at the 2004 IDSS Maritime Security Conference held in Singapore. The full text of the speech can be found in Defense & Foreign Affairs Daily, May 21, 2004. 27 Ibid.

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At the 3rd Shangri-La Dialogue held in June 2004, Tony Tan reiterated Singapore’s concern over the potential maritime attacks, pointing out that a ship sunk in the right spot in the Straits of Malacca would cripple world trade. He also raised the possibility of hijacked ships being turned into “floating bombs” and crashed into critical infrastructure such as oil refineries or ports.28 It was later reported that Singapore proposed the idea of U.S Marines helping to patrol the Straits of Malacca, which further reinforced the belief of Malaysia and Indonesia that Singapore was using the terrorist threat as a tool to justify the U.S presence in the region.29 Littoral States’ Responses to the RMSI: From June 2004 to June 2006 In response to the U.S.-proposed anti-terrorism patrols in the Straits of Malacca under the RMSI, and perceiving a foreign intervention in the management of security matters in the Straits and military presence in the region a threat to their sovereignty, Malaysia and Indonesia began to take domestic measures and cooperate with Singapore to enhance security in the Straits. In addition, they also started to seek U.S. and other user states’ involvement in their efforts to enhance security in the Malacca Straits, mainly by providing training, logistic supports, patrolling vessels, or technological and financial aids. International organizations, such as the IMO of the United Nations, and regional cooperative mechanisms such as the ASEAN Regional Forum (ARF) and the Asia-Pacific Economic Cooperation (APEC) were also called upon to provide help. The littoral states’ political willingness to take more effective action to improve security in the Straits was further motivated by a decision made by the Joint War Committee (JWC) of Lloyd’s Market Association in June 2005, which declared the Straits of Malacca a “high-risk zone” and added it to its list of areas which are at risk to war, strikes, terrorism and related perils.30 The littoral states were concerned very much over the JWC decision, mainly because it could result in higher insurance premiums for the ships that transit the Straits or call at littoral states’ ports, which thus would hurt their economy. While repeatedly claiming that the JWC decision was not justified, the littoral states also realized that unless they took more effective actions to improve safety and security in the Straits of Malacca, the Straits would not be removed from the JWC “high-risk zone” list. In the next section, the national

28  “Going for the Jugular; Shipping in South-East Asia,” The Economist (U.S. edition), June 12, 2004. 29 C.S. Kuppuswamy, “Straits of Malacca: Security Implications,” South Asia Analysis Group, Paper No. 1033, June 18, 2004. 30  Marcus Hand and James Brewer, “Malacca Strait Declared a High Risk Zone by Joint War Committee: Decision could Increase Premiums in Affected Area,” Lloyd’s List, July 1, 2005.

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responses of the three littoral states of the Malacca Straits to the U.S.-proposed RMSI since July 2004 until June 2006 are examined. Domestic Actions Taken by Littoral States to Combat Maritime Crimes Indonesia  To improve its capacity to handle the security problems in the Straits of Malacca, Indonesia formed the Navy Control Command Centers (Puskodal) in Batam and Belawan31 and set up six regencies at the immediate borders of the Straits of Malacca and Straits of Singapore, namely, Rokan, Hilir, Bengkalis, Siak, Palawan, Indragiri Ilir, and Karimun, which are believed the most vulnerable and dangerous areas for pirate attacks.32 The main purpose of setting up these regencies was to increase the people’s welfare, alleviate poverty, and thus dissuade the local people from attempting to engage in pirate activities. Tens of regencies along the Straits of Malacca and Singapore and around the three choke points will be set up in the future.33 In July 2005, an Indonesian maritime policy unit was established to help fight pirates and maintain Malacca security.34 In September 2005, Indonesia decided to install radars at nine locations along the Straits of Malacca to strengthen security in the area and announced that the Integrated Maritime Security System (IMSS) in the Straits will soon be introduced.35 Given that most of the cases involving maritime crimes in Indonesia’s conventional courts often produce problematic verdicts, which do not have the required deterrent effect, the government of Indonesia considered establishing maritime courts to try criminals operating in Indonesian waters.36 Anti-piracy and anti-terror exercises were also be held to enhance security in the Straits of Malacca. For instance, in July 2005, the Indonesian Navy launched a three-month operation,

31 Admiral Bernard Kent 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, October 11–13, 2004, pp. 8–10. 32 Robert Magindaan, “Maritime Terrorism Threat: An Indonesian Perspective,” paper presented at Observer Research Foundation Workshop on Maritime Counter Terrorism, November 29–30, 2004, p. 4. 33 Ibid. 34  “Indonesian Maritime Policy Contributes to Security in Malacca Straits,” Thai Press Report, July 20, 2005. 35  “RI Navy to Install Radar Along Malacca Strait,” Antara (Indonesia), September 3, 2005; “Indonesian Defence Minister attends Border Committee Meeting in Malaysia,” BBC Worldwide Monitoring, December 16, 2005; “Integrated Maritime Security System to Debut in Malacca Strait,” Asia Pulse, September 9, 2005. 36 Tony Hotland, “Admiralty Courts in the Making,” The Jakarta Post, June 23, 2005.

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named Gurita (Octopus) in a bid to fight rampant pirate attacks in the Straits37 and in March 2006, an anti-terrorism drill was held in the Straits of Malacca.38 Malaysia The government of Malaysia has also adopted a number of domestic measures to deal with the maritime threats posed by piracy and armed robberies in the Straits of Malacca. In fact, some of these measures had been implemented before the RMSI was announced in May 2004. For instance, in 2003, Malaysia built a string of radar tacking stations along the Straits of Malacca to monitor traffic and acquired new patrol boats to combat piracy.39 In 2004, the Royal Malaysian Navy intensified its training activities and patrols in the northern reaches of the Straits of Malacca beyond the area of one fathom bank in an effort to combat piracy and maritime terrorism.40 In April 2005, it was reported that the Malaysian Maritime Enforcement Agency (MMEA) will be formed to be responsible for patrols in the Straits of Malacca.41 This new agency began patrolling the Straits in December 2005.42 The Malaysian maritime policy was also asked to increase its anti-piracy operations and help ensure safety and security of the Straits of Malacca. 43 In February 2006, Malaysia announced its plan to step up anti-piracy patrols in the Straits of Malacca by adding up to 15 new high-speed police boats and conducting joint maritime exercises with Indonesia, Thailand and Singapore.44 Singapore  When undertaking efforts to fight piracy and maritime terrorism, the government of Singapore encounters a dilemma of conflicting interests between protecting its shipping industries and stressing that maritime threats in the Straits of Malacca are real and therefore asking the littoral states to adopt 37  “Navy Launches Operation to Secure Malacca Strait,” The Jakarta Post, July 13, 2005. 38 Irwan Firdaus, “Indonesian Navy Holds Anti-terror Drill in the Malacca Strait,” Associated Press, March 8, 2006; “Indonesian Navy Holds Anti-terror Drill in Malacca Strait,” Thai Press Reports, March 10, 2006. 39 Nick Brown, “Malaysia asks for Help to Fight Piracy,” Jane’s Navy International, November 1, 2003; Iskander Sazlan, “Counter Maritime Terrorism: Malaysia’s Perspective,” paper presented at Observer Research Foundation Workshop on Maritime Counter Terrorism, November 29–30, 2004, p. 13. 40 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, March 2–4, 2005. 41  “Report: Malaysia Forms New Maritime Agency to Patrol Malacca Straits from June,” The Associated Press, April 27, 2005. 42  “Malaysia to Increase Patrol in Malacca Strait,” Thai Press Report, December 6, 2005. 43  “Malaysia’s Maritime Police Increase Anti-piracy Operations,” BBC Worldwide Monitoring, June 1, 2005. 44  “Malaysia to Step up Anti-piracy Patrols in Malacca Strait,” AFX International Focus, February 9, 2006.

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more cooperative law enforcement measures to protect against pirate and maritime terrorist attacks. The basis for the JWC to declare the Straits a high-risk zone was the security assessment done by its consultant Aegis Defence Services. In August 2005, the JWC stated that the Straits of Malacca would remain on the list of highrisk zones “until it was clear that the measures planned by government and other agencies in the area had been implemented and were effective.”45 While taking note of shipping industries’ concern over rising insurance costs, the government of Singapore has consistently emphasized the potential maritime security threat in the Straits of Malacca and asked cooperation from the other two littoral states to enhance security in the Straits. A number of unilateral anti-piracy and antiterrorism measures have also been taken by Singapore, such as deploying a fleet of remote-controlled vessels,46 providing two Fokker planes for joint Malacca Straits patrols,47 deploying armed security teams onboard selected merchant vessels entering and leaving its territorial waters,48 and laying high-tech sonar arrays on the seabed across the Malacca Straits.49 More importantly, Singapore has been very active in pressing Malaysia and Singapore to agree to a tripartite coordinated patrolling program in the Straits and the involvement of other ARF members and user states in the management of security matters in the Malacca Straits. In addition to the selected domestic anti-piracy and anti-terrorism measures as mentioned above, Malaysia, Indonesia and Singapore have also cooperated closely with the IMO by implementing amendments to the International Convention for the Safety of Life at Sea, in particular, Chapter XI-2 of the Convention, the International Ships and Port Facility Security (ISPS) Code, the Automatic Identification System, and held a special meeting in Jakarta in September 2005 to enhance security in the Straits of Malacca. Both Singapore and Malaysia joined the U.S. CSI in March 2003, and March 2004 respectively. Bilateral Cooperative Programs in the Straits of Malacca Between Littoral States  Long before the announcement of the idea of RMSI by the U.S. Pacific Command, Indonesia and Singapore agreed to establish a bilateral program to patrol the Straits of Singapore in 1992, which involved the setting up of direct communication links between the navies and the relevant agencies of 45  James Brewer, “Joint War Committee Stands by Strait Ruling,” Lloyd’s List, August 17, 2005. 46  “Singapore Navy Unveils Fleet of Remote-control Vessels,” AFX—Asia, May 17, 2005. 47  “Singapore to Contribute 2 Fokker Planes for Joint Malacca Strait Patrols,” Channel News Asia, September 8, 2005. 48  “Singapore—Navy will Escort Commercial Ships,” Reuters, March 2, 2005; “Armed Teams to Guard Merchant Ships entering Singapore Port,” Lloyd’s List, March 1, 2005, p. 1. 49  “Singapore Newspaper Highlights,” Asia Pulse, March 30, 2005.

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the two littoral States. Coordinated patrols under the program were carried out three months in the Straits.50 In May 2005, Indonesia’s and Singapore’s navies launched Project SURPIC, which is a sea surveillance system. Under the system, the two countries’ navies can share a common real-time sea situation picture of the Singapore Straits.51 Similarly, bilateral cooperative efforts had also been made by Indonesia and Malaysia to help improve safety and security in the Straits of Malacca. In 1992, a Maritime Operation Planning team was established by the two countries to coordinate their joint patrols in the Straits, which are conducted four times a year and involve maritime institutions such as customs, search and rescue, and police.52 Indonesia and Malaysia also carry out join patrols in the Straits of Malacca under the agreed Malindo program. In November 2005, Malaysia and Singapore conducted a joint exercise, code name Ex Malapura, in the Malacca Straits to secure security in the area, which is the 17th joint exercise between the navies of the two countries.53 In April 2006, Malaysia and Indonesia held another joint aerial exercise, code-named Elang Malindo XXII.54 Between Littoral States and User States  Bilateral cooperative programs or agreements have also been concluded between the littoral states and user states of the Malacca Straits, in particular, the United States. In July 2005, as mentioned earlier, a strategic framework agreement for a closer cooperation partnership in defense and security was signed between Singapore and the United States, in which the two countries agreed to work toward enhanced cooperation in the areas of anti-WMD, anti-terrorism, search and rescue (SAR) and disaster management, intelligence exchange, and defense technology.55 While both Malaysia and Indonesia raised their concerns over the singed U.S.-Singapore Strategic Framework Agreement, in particular the worries about a strong U.S. military presence in the region and 50 Robert Go, “Singapore Strait Patrols Keep Pirates at Bay,” The Straits Times Interactive, May 16, 2002. 51  “Singapore and Indonesian Navies Launch Sea Surveillance System,” MINDEF News Release, May 27, 2005, available at: http://app.sprinter.gov.sg/data/pr/20050527997. htm (accessed 1 June 2006). 52 Admiral Bernard Kent 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, October 11–13, 2004, p. 11. 53  “Malaysia, Singapore Conduct Joint Exercise in Malacca Strait,” Thai Press Reports, November 29, 2005. 54  “Joint Exercise Expected to Enhance RI, KL Diplomatic Ties,” Antara (Indonesia), April 24, 2006. 55  Strategic Framework Agreement between the United States of America and the Republic of Singapore for a Closer Cooperation Partnership in Defense and Security, see Joint Statement Between President Bush and Prime Minister Lee of Singapore, FDCH Federal, Department and Agency Documents, July 12, 2005.

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a potential threat to their sovereignty,56 they are willing to improve their military relations with the United States. In 2004 and 2005, Indonesia and the United States held the 2nd and 3rd security dialogue respectively, in which the two countries exchanged views on a wide range of security and defense issues, including security in the Straits of Malacca.57 In May 2005, joint anti-terrorism exercises between the United States and Indonesia were held in the sea off Jakarta.58 At the end of 2005, the United States decided to help Indonesia to modernize its armed forces and offered technical assistance to support joint security operations in the Straits of Malacca by Indonesia, Malaysia and Singapore.59 In January 2006, it was reported that Indonesia and the United States will re-evaluate their security cooperation following the lifting of the U.S. arms embargo in November 2005, especially in dealing with terrorism and security in the Straits of Malacca and in Southeast Asia.60 In the same month, the government of Indonesia submitted its request to the United States for technical support in the form of radar, sensors, and improved patrol boat capability to secure the Straits of Malacca.61 Indonesia’s cooperation with the United States to fight terrorism and enhance security in the Malacca Straits was also discussed during the visit of U.S. State Secretary Condoleezza Rice to Jakarta in mid-March 2006.62 In March 2006, Indonesia and the United States conducted a joint exercise on Small Craft Counter Terrorism Maritime Interdiction Techniques.63 During her visit to Indonesia in March 2006, Secretary of State Condoleezza Rice said that maritime security was a top priority in Southeast Asia, and that the United States was working with Indonesia and others to close the Straits to drug smugglers and human traffickers, pirates and 56  “Singapore: Country Outlooks,” EIU Views Wire, August 9, 2005. 57  See Joint Statement, Indonesia–United States Security Dialogue III, Jakarta, August 2–3, 2005, available in Embassy of the Republic of Indonesia Tokyo Official Website at: http://www.indonesian-embassy.or.jp/menue/information/state/index.htm (accessed); Joint Statement Indonesia–U.S. Security Dialogue II, press release, Embassy of the Republic of Indonesia, Washington, D.C., April 23, 2004, available at: http://www.embassyofindonesia. org (accessed 1 June 2006). 58  “U.S., Indonesian Navies Hold Joint Anti-terror Exercise off Jakarta,” The Associated Press, May 10, 2005. 59  P.S. Suryanarayana, “A Strategic Move,” Frontline, 23: 1 (January 2006), pp. 14–27; “ＵS Offers Technical Aid for Malacca Strait Security,” ANT-LKBN ANTARA (Indonesia), December 2, 2005; and “U.S. to Donate Old Ships to Indonesia to Help Secure Malacca Strait, Official Says,” The Associated Press, December 7, 2005. 60  “RI, US to Re-formulate Security Cooperation,” Antara (Indoensia), January 13, 2006. 61  “Indonesia Requests US Technical Assistance for Malacca Strait Security,” BBC Worldwide Monitoring, January 23, 2006. 62  “Rice Visit to Strengthen RI-US Ties in Fighting Terrorism: Legislator,” Antara (Indonesia), March 2, 2006. 63  “Indonesian and US Navies Conduct Counter-Terrorism Exercise,” Antara (Indonesia) March 14, 2006.

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weapons proliferators.64 US$1 million in aid was allocated to Indonesia to help the country improve security in the Straits of Malacca, according to Admiral William Fallon.65 In April 2006, it was reported that the United States would soon provide Indonesia with an early warning system to support security maintenance in the Straits of Malacca, which will be installed at several points along Indonesia’s territory on the waterway and on maritime patrol aircraft. In addition, the United States also promised to exchange intelligence information with the three littoral states on various matters relating to the situation and condition of the Malacca Straits.66 Indonesia also planned to discuss with the United States at the fourth Indonesia–United States Security Dialogue, held in Washington on April 23–30, 2006, on issues relating to the security of the Straits of Malacca, anti-terrorism, bio-terrorism and cyber-terrorism efforts, as well as the security of Southeast Asia.67 While differences over the question of securing the Straits of Malacca and the concern about the idea of U.S. military presence in the Straits still exist, Malaysia also moved to consider accepting help from the United States to enhance security in the Straits through improving military relations between the two countries. In May 2005, for instance, Malaysia’s Deputy Prime Minister and Defense Minister Najib Razak discussed security in the Malacca Straits with visiting U.S. Deputy Secretary of State Robert Zoellick. During the visit, the Acquisition and CrossServicing Agreement (ACSA) was signed, which provides a framework for cooperation in military logistic matters between the two countries.68 During his visit, Deputy Secretary Zoellick stated that the United States respects the role of the littoral states as the player with the responsibility for maritime security in the Straits, but at the same time is exploring ways to help Malaysia and Indonesia develop their capacities to deal with piracy and other crimes in the Straits.69 In February 2006, Deputy Prime Minister Najib Razak and Chief of the U.S. Pacific Command Admiral William Fallon held talks in Kuala Lumpur to discuss piracy and potential terrorist threats in the Straits of Malacca and the waters of Sabah.70 64  “Piracy Remains Threat in Southeast Asia,” Associated Press Online, March 20, 2006. 65  “Rumsfeld Calls for New Indonesian Ties,” Financial Times, March 10, 2006. 66  “U.S. offers Early Warning System to Secure Malacca Strait,” Xinhua General News Service, April 22, 2006. 67  “RI to seek US Affirmation on Proposed Strategic Partnership,” Antara (Indonesia), April 19, 2006. 68  “Malaysia, U.S. Ink Military Pact, Seek Malacca Strait Security,” Asia Political News, May 9, 2005; “Malaysia and US Renew Defence Pact, Discuss Malacca Strait Security,” AFX International Focus, May 9, 2005; and “US Looks at Malacca Piracy Fight Options,” Lloyd’s List, May 10, 2005. 69  “Deputy Secretary Zoellick Comments on Outcome of Meetings with Malaysian Prime Minister, Finance Minister,” US Fed. News, May 9, 2005. 70  “Malaysia, US Discuss Counter-Terrorism Cooperation in Malacca Straits,” Thai Press Reports, March 3, 2006.

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In early June 2006, Defense Secretary Rumsfeld urged increased ties between the militaries of the United States and Indonesia during his visit in Jakarta. He also discussed with Indonesian Defense Minister Juwono Sudarsono on cooperation between the two countries in the fight against terrorism and the threat of piracy in the Straits of Malacca. They also discussed how the United States could give military equipment to Indonesia to enhance Indonesian military capability to eradicate piracy in the Malacca Strait.71 In addition to the bilateral cooperation between the littoral states and the United States, there has also been seen cooperation developed between the littoral states and other main user states of the Malacca Straits, such as Japan. In March 2005, in response to a pirate attack against a Japanese-owned tugboat in the Straits of Malacca, Japan told the littoral states of the Straits that it was ready to send patrol vessels and aircraft to combat piracy. This offer was objected to by Malaysia and Indonesia.72 In May 2005, Indonesia’s Navy Chief of Staff Admiral Slamet Soebijanto said that Indonesia welcomed any assistance from foreign countries in securing the Straits of Malacca, including from Japan, as long as it was not in the form of military force. In relation to this, Japan sent a team to Indonesia tasked with studying what type of patrol ships Indonesia needed to deal with maritime crime in the Straits.73 In June 2005, during the bilateral trade talks, Japan and Indonesia agreed to strengthen their cooperation to enhance safety of navigation in the Straits of Malacca.74 In July the same year, Indonesia announced that four patrol boats provided by Japan would carry out patrolling missions in the Malacca Straits. In addition, Japan donated US$50 million to Jakarta to help safeguard the waterways.75 It was also reported in December 2005 that Japan and the three littoral states jointly drew up electronic sea charts of the Straits of Malacca and Singapore to help accident or piracy in the areas.76 In February 2006, the government of Japan pledged again to grant technical aid consisting of detectors and patrol boats to protect the Malacca Straits from possible terrorist attacks. Japan’s Nippon Foundation also announced its decision to donate a patrol training vessel to Malaysia as part of efforts to reduce piracy and improve maritime security in the 71  “US Wanted Military Cooperation Boosted,” The Jakarta Post, June 7, 2006; “US, Polish Defense Ministers visit RI to Boost Military Ties,” The Jakarta Post, June 6, 2006. 72  “Koizumi seeks Anti-piracy Cooperation with Asian Nations,” Asia Political News, March 28, 2005. 73  “Japan to Provide Vessels to Assist Indonesia with Malacca Strait Security,” BBC Monitoring International Reports, May 23, 2005. 74  “Japanese, Indonesian Leaders Agree to Launch Trade Talks, Cooperation on UN Reform,” BBC Monitoring International Reports, June 2, 2005. 75  “Indonesia May Deploy Four Japanese Ships to Tackle Piracy in Malacca Straits,” BBC Monitoring International Reports, July 20, 2005 and “Japan, Indonesia to Discuss Security Aid for Malacca Straits,” Asia Pulse, September 29, 2005. 76  “Japan, 3 Nations Draw up Electronic Sea Charts of Malacca Strait,” Japan Economic Newswire, December 19, 2005.

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Straits of Malacca.77 In June 2006, the Japanese Government decided to donate three patrol boats to Indonesia to help fight terrorism and piracy.78 In April 2006, Malaysian and Australian navies held a five-day exercise code-named Mastex in the Malacca Straits.79 In May 2006, Japan and Indonesia held intensive talks on security in the Malacca Straits.80 Tripartite Cooperative Patrolling Programs of the Littoral States It seems safe to point out that the most important development in terms of enhancing security in the Straits of Malacca is the establishment of routine sea and air patrols by the maritime security organizations of Indonesia, Malaysia and Singapore. As stated earlier, the main motivations for reaching the tripartite cooperative patrolling agreements among the three littoral states were the increasing demand from the user states and the international community for more effective law enforcement measures to deal with the problem of piracy and possible maritime terrorist attacks, the increasing concern of the littoral states over possible intervention of foreign powers by sending their troops to the areas, and the decision of Lloyd’s Joint War Committee that declared the Straits of Malacca a war-risk area. In July 2004, Indonesia, Malaysia and Singapore launched coordinated patrol program, known as the Malsindo Coordinated Patrol (MCP). Under the program, seven warships from Indonesia, five from Malaysia, and another five from Singapore are deployed to maintain security in the Straits of Malacca. However, it should be noted that the warships of the participating countries are prohibited from carrying out the patrolling activities in another participating country’s territorial waters.81 In securing the Malacca Straits under Malsindo Coordinated Patrol, control points have been set up in Belawan and Batam (Indonesia), Lumut (Malaysia) and in Changi (Singapore). Another control point, Phuket, will be set up in Thailand after its joining the “Eyes in the Sky” program.82 In addition to the tripartite coordinated sea patrol program, the three littoral states also reached agreement to begin air patrol over the Malacca Straits to curb piracy and increase security in the strategic waterway under the program known 77  “Japan to Provide Technical Aid to Safeguard Malacca Strait,” Antara (Indonesia), February 7, 2006; and “News In Brief,” Lloyd’s List, March 24, 2006. 78  “Japan to give patrol boats to Indonesia, to Relax Arms Export Ban,” BBC Monitoring International Report, June 8, 2006. 79  “Malaysia, Australia Conduct Naval Exercise in Malacca Strait,” BBC Monitoring Asia Pacific—Political, April 21, 2006. 80  “RI, Japan Intensifying Talks on Malacca Strait Security,” Antara (Indonesia), May 24, 2006. 81  K.C. Vijavan, “3-nation Patrols of Strait Launched; Year-round Patrols of Malacca Straits by Navies of Singapore, Indonesia, Malaysia aimed at Deterring Piracy and Terrorism,” The Straits Times Interactive, July 21, 2004. 82  “Thailand to Join Malacca Strait Security System,” Thai Press Reports, April 25, 2006.

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as “Eyes in the Sky”. The initiative for multinational maritime air patrols was proposed by Malaysia’s Deputy Minister and Defense Minister Najib Razak at the Shangri-la Dialogue held in June 2005.83 Under the “Eyes in the Sky” program, each littoral state of the Malacca Straits will provide two maritime aircraft per week to patrol the Straits, which will only patrol the waterway and will not be allowed to cross over to the land. While the maritime patrol aircraft would be allowed to fly above another participating country’s waters in the Straits, they must fly no less than three nautical miles from that country’s land. It was also agreed that each patrol aircraft will have a Combined Maritime Patrol Team (CMPT) on board, consisting of a military officer from each of the participating countries. The CMPT will establish a comprehensive surface picture over the patrol area. During the initiative stage for the implementation of the maritime air patrol program, only the three littoral states and Thailand can participate. But the implementation of the second phase of the “Eyes in the Sky” program could involve participation by the extra-regional countries, such as the United States, subject to the principle that sovereignty of the littoral states must be respected.84 Although the “Eyes in the Sky” program was launched in September 2005, it was in April 2006 that the three littoral states signed an agreement on the formation of a joint coordinating committee on the Malacca Straits Patrols (MSP) and Standard Operational Procedures on Coordinated Patrols.85 Under the agreement, crossborder hot pursuit cannot be carried out without prior arrangements between the littoral states. While Singapore and Indonesia, as well as Malaysia and Indonesia, have a bilateral agreement allowing for cross-border hot pursuit, Singapore and Malaysia have no such agreement and must seek permission before entering each other’s territorial waters. It was pointed out that the tripartite patrol agreement is an “open arrangement with opportunities for the international community to participate”, but only with the consent of Indonesia, Malaysia and Singapore.86 In June 2006, at the 5th Shangri-La Dialogue, held in Singapore, both India expressed their willingness to help the littoral States to patrol the Straits of Malacca.87

83  “Interactions among world powers can be source of strength: Minister Teo,” Channel News Asia, August 4, 2005. 84  Graham Gerard Ong and Joshua Ho, “Maritime Air Patrols: The New Weapons Against Piracy in the Malacca Straits,” IDSS Commentary, 70/2005, October 13, 2005, available at: http://www.idss.edu.sg/publications/Perspective/IDSS702005.pdf (accessed). 85  “Indonesia, Malaysia, Singapore agree Malacca Strait Security Procedures,” BBC Monitoring Asia Pacific—Political, April 22, 2006. 86  Donald Urquhart, “Malacca Strait Air and Sea Patrols under One Umbrella,” The Business Times Singapore, April 22, 2006. 87  “Marcus Hand, “Asia-Pacific Nations Pledge Joint Action on Malacca Strait Protection: Terrorism Threat adds to Concern over Piracy,” Lloyd’s List, June 6, 2006; “India Willing to Help Littoral States Patrol Malacca Straits,” Channel News Asia, June 3, 2006.

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Regional Responses and Efforts in Helping Improve Security in the Malacca Straits Tripartite Ministerial Meeting of the Littoral States on the Malacca and Singapore Straits In August 2005, ministers of foreign affairs of the three littoral States met in Batam, Indonesia to discuss matters in relation to safety of navigation, maritime security, and environmental protection in the Straits of Malacca and Singapore.88 A Joint Statement was issued after the meeting, in which the three countries reaffirmed their sovereignty and sovereign rights over the Malacca and Singapore Straits, which are defined under the 1982 UNCLOS as straits used for international navigation. The ministers stressed that the main responsibility over the safety, security, and environmental protection in the Straits lies with the littoral states. The ministers emphasized that whatever measures undertaken in the Straits in the future should be in accordance with international law, including the 1982 UNCLOS. It is based on this understanding the three littoral states acknowledged the interest of user states and relevant international agencies and the role they could play in respect of the Straits. Moreover, in recognition of the importance of engaging the states bordering the funnels leading to the Malacca and Singapore Straits and the major users of the Straits, the three littoral states supported continuing discussion on the overall subject of maritime security in the Southeast Asian region within the framework of ASEAN and ARF. They also acknowledged the good work carried out by the Tripartite Technical Experts Group (TTEG) on Safety of Navigation in the Straits of Malacca and Singapore and recognized the efforts of Revolving Fund Committee (RFC) in dealing with issues of environmental protection in the Straits.89 The Ministers recognized the importance of the Tripartite Ministerial Meeting on the Straits of Malacca and Singapore in providing the overall framework for cooperation among them and supported the convening of the Chief of Defense Forces of Malaysia, Indonesia, Singapore and Thailand Informal Meeting in Kuala Lumpur on August 1–2, 2005. More importantly, the ministers agreed to address the issue of maritime security comprehensively which includes trans-boundary crimes such as piracy, armed robbery and terrorism. They also perceived the need to address the issue of trafficking in persons, and smuggling of people, weapons and other trans-boundary crimes through appropriate mechanisms. In recognition of user states’ interest in maintaining the safety of navigation, maritime security, and environmental protection in the Straits, the ministers welcomed the assistance 88 This is the 4th Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore, which was held on August 1–2, 2005. 89  See The Batam Joint Statement of the 4th Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore, Batam, Indonesia, August 1–2, 2005.

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of the user states, relevant international agencies, and the shipping community in the areas of capacity building, training and technology transfer, and other forms of assistance, provided that the main responsibility of littoral states in managing the Straits was respected, and that the assistance was offered in accordance with the 1982 UNCLOS. The ministers expressed their displeasure about the JWC decision that declared the Straits of Malacca and Singapore a high-risk zone for piracy and terrorism without consulting with the littoral states and failing to take into account the existing anti-piracy and anti-terrorism measures undertaken by the littoral states. Finally, the ministers welcomed a special meeting on enhancing safety, security, and environmental protection in the Malacca and Singapore Straits to be held in Jakarta in September 2005.90 IMO Jakarta Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection Due to a genuine concern over possible terrorist attacks in the Straits of Malacca, the Council of IMO decided in November 2004 to convene a high-level conference to consider ways and means of enhancing safety, security and environmental protection in the Straits.91 Accordingly, the “IMO Jakarta Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection” was held in September 2005. At the conference, Mr. Efthimios Mitropoulos, Secretary-General of the IMO, pointed out in his opening remarks that [w]ith regard to the question of security versus sovereignty (or vice versa), while I can understand and fully respect the sensitivity of any State over the issue, I also believe that, whilst States have the right of non-interference in their internal affairs, they also have concurrent responsibilities towards their own people, the international community and their international engagements. Whatever the answer to this, there can be no excuse for inactivity, whether the danger is clear and present or perceived as a future possibility.92

Accordingly, the Secretary-General called on the three littoral states bordering the Straits of Malacca and Singapore, user states of the Straits, industry and all other stakeholders to work together to produce an outcome conductive to building confidence in any efforts undertaken jointly to enhance safety, security and environmental protection in the Straits. The Secretary-General also made it clear that any action undertaken in the future should be based on the consent, support and cooperation of the littoral States concerned, which should be invited to play 90 Ibid. 91  “IMO to take Straits initiative,” Council, 93rd session, November 15–19, 2004, available at: http://www.imo.org (accessed 1 June 2006). 92  For the opening remarks, visit the website of the IMO at http://www.imo.org (accessed 1 June 2006).

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a principle role in all developments. In addition, any action undertaken must be consistent with international law, including the relevant provisions of the 1982 UNCLOS.93 The meeting produced the Jakarta Statement which emphasizes the need to balance the interest of the littoral states and the user states while respecting the littoral states’ sovereignty, and to establish a mechanism to facilitate cooperation between them to discuss issues relating to the safety, security and environmental protection of the Strait of Malacca and Singapore, including exploring possible options for burden sharing.94 For the purpose of enhancing the safety, security and environmental protection of the Malacca and Singapore Straits, the 34 participating countries in the meeting agreed that the work of Tripartite Technical Experts Group (TTEG) on Safety of Navigation in enhancing the safety of navigation and in protecting the marine environment in the Straits, including the efforts of the TTEG in relation to the implementation of article 43 of UNCLOS in the Straits should continue to be supported and encouraged.95 The IMO has also been invited to consider, in consultation with the littoral states, convening a series of follow-on meetings for the littoral states to identify and prioritize their needs, and for user states to identify possible assistance to respond to those needs, which may include information exchange, capacity building, training, and technical support, with a view to promote and coordinate cooperative measures.96 A Memorandum of Understanding (MOU) by and among the governments of the three littoral states and IMO for the implementation of a regional Marine Electronic Highway (MEH) demonstration project in the Straits of Malacca and Singapore (MEH MOU), and a Memorandum on Arrangements by and among the three littoral states, IMO, International Hydrographic Organization (IHO), INTERTANKO and ICS to implement specific activities or article 4 of the MEH MOU, were signed.97 Also at the meeting, China, South Korea and Norway were encouraged to join Japan to make financial contributions to the Malacca Straits Council. Over the previous 35 years or so, the Nippon Foundation of Japan had contributed more than US$100 million to the Council.98

93 Ibid. 94  See the identical letters dated October 28, 2005 from the Permanent Representatives of Indonesia, Malaysia and Singapore to the United Nations addressed to the SecretaryGeneral and the President of the General Assembly, Sixtieth Session, Agenda item 75, Ocean and the Law of the Sea, A/60/529, November 1, 2005, Appendix II, pp. 5–10. 95  Para. 22, ibid. 96  Para. 23, ibid. 97  Para. 24, ibid. 98  “IMO Malacca Straits Meeting on Safety and Security in Jakarta,” UK P&I Club, available at: http://www.ukpandi.com/ukpandi/infopool.nsf/HTML/ClubEvents20050907 (accessed). See also “High-powered Jakarta Meeting Agrees that Vessels should Chip In,” The Star Online, September 12, 2005, available at: http://thestar.com.my/maritime/ (accessed 1 June 2006).

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Tokyo Ministerial Conference on International Transport Security In January 2006, the Ministerial Conference on International Transport Security was held in Tokyo, Japan, attended by the transport ministers of the G-8 members and six Asian countries, namely, China, South Korea, Indonesia, Malaysia, Singapore, and Australia. The purpose of this conference was to discuss international transport security issues, including security in maritime transport sector. A ministerial declaration and three ministerial statements on security in the international maritime transport sector, aviation security, and land transport security were adopted by the conference. The Ministerial Statement on Security in the International Maritime Transport Sector stressed the importance of ensuring continued compliance with the provisions of Chapter XI-2 of the 1974 SOLAS convention and the ISPS Code, which were adopted in December 2002 and entered into force in July 2004.99 The participants in the conference welcomed the adoption of the 2005 Protocol to the 1988 SUA Convention, and the 2005 Protocol to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed platform Located on the Continental Shelf. Among the unlawful acts covered by the 1988 SUA Convention in Article 3 are the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it.100 In May 2006, the IMO announced that parties to the SOLAS Convention had given initial acceptance to new security measures, which require ships be tracked by satellite to fight terrorism and to prevent the introduction of WMD to the supply chain. Under the new Long-Range Identification and Tracking (LRIT) regulation, which is expected to become effective in January 2008, merchant ships will be required to transmit information about their identity, location, and date and time of their position through satellite-based technology.101 The new regulation on LRIT is included in the 1974 SOLAS Convention’s Chapter V on Safety of Navigation, through which LRIT is introduced as a mandatory requirement for passenger ships, including high-speed craft and cargo ships, including high-speed craft, of 300 gross tonnage and upwards, and mobile offshore drilling units on international voyages. The Plan to Establish the ReCAAP Information Sharing Center To help enhance safety and security in the Straits of Malacca, Japan launched an initiative in 2001, aiming to set up a anti-piracy cooperative framework among 99 The Ministerial Declaration and Ministerial Statements adopted at the Ministerial Conference on International Transport Security, Tokyo, Japan, January 12–13, 2006; for the documents, visit http://www.mlit.go.jp/sogoseisaku/kokusai_e/minister_e.html (accessed 1 June 2006). 100  See Article 3bis of the 2005 Protocol to the SUA Convention. 101  “Shipping Nations Agree Satellite Tracking Rule,” Reuters, May 19, 2006.

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ASEAN countries, China, Japan, South Korea, India, Sri Lanka and Bangladesh. As a result, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) was concluded in Tokyo in November 2004.102 The Agreement has been opened for signature by Bangladesh, Brunei, Cambodia, China, India, Indonesia, Japan, South Korea, Laos, Malaysia, Myanmar, the Philippines, Sri Lanka, Thailand, and Vietnam and will enter into force 90 days after the date on which the tenth instrument of notification by a state mentioned above, indicating the completion of its domestic requirements, is submitted to the government of Singapore, the depositary of the Agreement.103 As of June 2006, 12 countries104 had signed the agreement; all of these countries except Brunei had ratified the ReCAAP agreement, which entered into force on September 4, 2006.105 A key pillar of the ReCAAP is the Information Sharing Center (ISC), which will be established in accordance with Part II of the Agreement. The ISC, located in Singapore, is an international organization with major functions of facilitating communication and information exchanges between the member countries and improving the quality of statistics and reports on piracy and armed robbery against ships in the region. It was reported that one of the major reasons for Malaysia’s and Indonesia’s failure to sign the Agreement so far was the two countries’ displeasure of the decision to set up the ISC in Singapore. However, it should be noted that it was mentioned in the Batam Agreement that Malaysia and Indonesia “take note of” the ISC, and agreed to cooperate with the Center.106 Positive Results from the Responses of the Littoral States Within such a short period of time, about two years from May 2004, security in the Straits of Malacca improved significantly, mainly because of the cooperative efforts undertaken by the littoral states in response to the U.S.-proposed RMSI and the likelihood of American unilateral actions sending its troops to help patrol the Straits, and also in response to the decision by the British-based Joint War Committee of the Lloyd’s Market Association to put the Straits on its list of 102 Regional Agreement on Combating Piracy and Armed Robbery against Ships in Asia, Introductory Note by Moritaka Hayashi and Text of Agreement, International Legal Materials, 44 (July 2005), pp. 826–35. 103  See Article 18 of the Agreement. 104 They are: Brunei, Cambodia, India, Japan, South Korea, Laos, Myanmar, the Philippines, Singapore, Sri Lanka, Vietnam, and Thailand. 105  See speech by Mr. Yeo Cheow Tong, Minister for Transport, at Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP) Information Network System (IFN) Signing Ceremony, April 20, 2006, Singapore Government, media release. 106  See para. 10 of the Batam Joint Statement of the 4th Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore.

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war-risk areas in June 2005. According to the figures released by the IMB in its 2005 Annual Report on Piracy Against Ships, the number of pirate attacks in the Malacca Straits dropped from 38 in 2004 to only 12 attacks in 2005.107 There were no reported pirate attacks in the Straits of Malacca in the period of time between January 1 and March 31, 2006, compared with eight in the same period in 2004 and four in 2005.108 “Action by law enforcement agencies, notably in Indonesia and the Malacca Strait, has continued to be effective” and “Indonesia in particular, has increased its efforts to defeat piracy by way of a show of force in known (pirate) hotspots”, said the IMB in April 2006.109 In addition to the Malsindo joints sea patrols and the “Eyes in the Sky” joint air patrols, launched by Indonesia, Malaysia and Singapore in July 2004 and in September 2005, respectively, a number of domestic anti-piracy and anti-terrorism measure and bilateral cooperative programs have also been developed to safeguard the Straits of Malacca. New national organizations or units such as Malaysia’s Maritime Enforcement Agency (MMEA) and Singapore’s Accompanying Sea Security Team (ASSet) were established to be responsible for maritime security matters. The ReCAAP Information Network System was launched in April 2006 and the ReCAAP Information Sharing Center is to be established after the entrance into force of the ReCAAP Agreement. Moreover, bilateral cooperation between the littoral states and user states, in particular, the United States, Japan, and India, has been strengthened to help improve maritime security in the Straits of Malacca and in Southeast Asia. The littoral states, especially Indonesia, have received the offer by user states of technical aids, patrol training, and equipments. It is expected that the littoral states will receive more financial and technical assistance from the user states, including China and South Korea in the future. At the same time, it has been reiterated that the sovereignty of the littoral states will be respected. The regional and international concerns over safety and security in the Straits of Malacca will continue serving as an important external policy factor in the process of enhancing security in the Straits and the region. As such, it is also expected to see more discussions on the issue of enhancing maritime security in the Straits of Malacca under the IMO framework and in the existing regional security organizations, such as the ASEAN, ARF, Council for Security Cooperation in Asia-Pacific (CSCAP), APEC, Five Power Defense Arrangements (FPDA), Western Pacific Naval Symposium (WPNS), and the Shangri-La Dialogue. While there has been positive development in the management of security in the Straits of Malacca since 2004,

107  Frank Kennedy, “Piracy Declines Sharply in Malacca Straits,” Gulf News, Gulf News, February 6, 2006. 108  Based on the IMB’s Piracy and Armed Robbery Against Ships Report for January 1 to March 31 2006 in April 2006. See Katy Glassborow, “IMB Report Charts Piracy’s Shifting Trends,” Jane’s Navy International, June 1, 2006. 109  “Pirate Attacks Drop to Zero in Malacca Strait but Global Attacks Rise, says Watchdog,” Associated Press Worldstream, May 3, 2006.

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a number of challenges remain to be dealt with by both the littoral and user states in the future. Challenges Ahead While a number of positive developments in relation to the management of security in the Straits of Malacca have been seen since June 2004, still there are challenges lying ahead and needing to be deal with by both the littoral and user states. The shipping industries of the three littoral states of the Straits have been asking the committee to change its risk assessment, but without avail. Unless the littoral states are able to prove the effectiveness of their coordinated patrolling programs, it is likely that the Straits would remain on the list. The effectiveness of the tripartite coordinated air and sea patrolling programs agreed to by the three littoral states has also been questioned. A Singaporean maritime security analyst listed three limitations to the effectiveness of the cooperative programs: (1) the countries view independence and sovereignty very strongly and therefore generally are reluctant to agree participate more actively in cooperative activities; (2) there is a gap between the countries with regard to law enforcement capacities; and (3) there exists political suspicion among the countries, in addition to the lack of political frameworks that could help facilitate more cooperative maritime security efforts. It is challenging to see the littoral states iron out their differences over the seriousness of the maritime security threats and the possible association between piracy and maritime terrorism in the Straits of Malacca and in Southeast Asia. It has been pointed out that law enforcement capacity of Malaysia and Singapore are good, but Indonesia’s difficult resource problems need to be resolved if the problem of piracy and possible maritime terrorist attacks are effectively dealt with. It remains to be seen concerning the question to what extent and how soon these problems can be resolved either by significant investment provided by the littoral states themselves or by the financial and technical aids from the user states such as United States, Japan and India now, as well as Australia, China and South Korea in the future. The development of closer strategic and military cooperation between the littoral states and foreign powers, in particular, the United States, could be helpful for countries such as Japan or international governmental organizations such as IMO to justify the decision to offer more assistance to help the littoral states enhance their maritime security capabilities. The United States and Indonesia have resumed military ties, but progress toward greater accountability and complete military reform in Indonesia remain to be seen. The governments of Indonesia and Malaysia could reconsider their position on the PSI, such as participating in the PSI activities partially or selectively. A positive development

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in this regard is the announcement made by the U.S. Government that it “stand[s] ready to help Indonesia and Malaysia, Singapore and Thailand to secure the Straits of Malacca.”110 In addition, the signing of the Strategic Framework Agreement between the United States and Singapore in July 2005 could be welcomed by the other two littoral States as a positive development helpful to the enhancement of maritime security in the Straits of Malacca in particular and in Southeast Asia in general. Another challenge to the effective management of security in the Straits of Malacca is how to find an acceptable approach that would compromise the littoral states’ sovereign concerns with the user states’ demand for a more direct involvement in the security matters in the Straits. This requires both sides reach agreement on establishing a burden-sharing mechanism or a multilateral/ international security cooperative mechanism in the Straits of Malacca area. To help establish a burden-sharing mechanism, there is a need to amend Article 43 of the 1982 UNCLOS for the purpose of expanding the scope of burden sharing to include those costs associated with the management of security in the Straits of Malacca. The early establishment of a regional marine training center or a piracy/ terrorism information sharing center would also be seen another important test of political will of the littoral states and the concerned countries in the region to enhance security in the Straits of Malacca and in Southeast Asia. Finally, it would be important for the littoral states to become contracting parties to the IMO’s 1988 SUA Convention, the 2005 Protocol to the 1988 SUA Convention, and the 2004 ReCAAP agreement. At present, of the littoral states of the Malacca Straits, only Singapore had ratified the 1988 SUA Convention and the ReCAAP Agreement. It remains a big challenge to have both Indonesia and Malaysia ratify the aforementioned maritime security-related international treaties. Conclusion Under the pressure spreading outwards from the United States, in particular through the proposal of RMSI and the consideration of sending its troops to deal with the potential maritime security threats in the Straits of Malacca and Southeast Asia, the three littoral states—Indonesia, Malaysia and Singapore—were forced to adopt more domestic anti-piracy and anti-terrorism measures, and to develop the tripartite coordinated sea and air patrol programs to improve security in the Straits. New governmental agencies or units, such as the Malaysian Maritime Enforcement Agency, the Singaporean Accompanying Sea Security Team, and the Indonesian maritime policy unit, have been formed to be responsible for managing security in the Straits. More patrol boats have been acquired and new monitoring 110  See Paul X. Rutz, “Rice: U.S. , Indonesia Must Continue Work on ‘True Partnership’,” American Forces Information Service News Articles, March 16, 2006.

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systems been set up to help strengthen the littoral states’ control over the traffic in the Straits. Bilateral cooperative programs have also been developed between the littoral states themselves and between the littoral states and user states, such as the United States, Japan and India, and perhaps in the future with China, South Korea, and other countries, to keep the region’s important waterways safe. A number of important political statements such as the Batam Agreement and the Jakarta Agreement of 2005, and the first ASEAN Defense Ministers’ Statement of May 2006, have been adopted or issued, in which both the littoral and user states are urged to take more cooperative actions to help enhance security in the Malacca Straits. It seems that a more effective, collaborative approach to deal with the maritime security matters in the Malacca Straits and in Southeast Asia has been developed since the first half of the year 2004. It is believed that this development is to benefit the international maritime community and, in particular, the shipping industries that rely heavily on the safe navigation of the Straits of Malacca. However, piracy and maritime terrorism, and other transnational crimes in the Straits and in Southeast Asia are likely to remain a major maritime security concern for the governments and the shipping industries for some years to come. To deal effectively with the maritime security threats in the Straits of Malacca, a number of challenges need to be overcome, which include the effectiveness of the implementation of the agreed tripartite coordinated sea and air patrols program, the littoral States’ ratification of the maritime security-related international Conventions, in particular, the 2004 ReCAAP Agreement and the 1998 SUA Convention, and the 2005 Protocol to the 1988 SUA Convention. There is also a need to establish a burden-sharing agreement that is acceptable to both the littoral and user states.

Chapter 8

Crackdown on Piracy in Southeast Asian Seas: Need a More Effective Legal Regime? ZOU Keyuan

Modern Piracy and Maritime Terrorism In the early European state system piracy was a legitimate practice. Pirates brought revenue to the sovereign, weakened enemies by attacking their vessels and settlements, and supplied European markets with scarce goods at affordable prices. The most successful of the British pirates were even knighted. Madagascar was once a pirate republic for 35 years named Libertalia. However, with the time, this legitimate enterprise gradually became a statutory crime. The domestic law of piracy can be traced back in the seventeenth century. The English law on piracy in 1698 (then 1721, 1837, and 1850) was the first domestic law specifically addressing the issue of piracy. Subsequently, the United States, Germany and France enacted similar laws of piracy. At the international level, the first law was the 1856 Treaty of Paris which ended privateering by commissioned pirate ships. The 1889 Montevideo Convention accepted the principle that suppression of piracy was the responsibility of mankind. The Nyon Agreement of 1937 defined the unidentified attacks in the Mediterranean as “acts of piracy.” The 1958 Geneva Convention codified the anti-piracy provisions generally formulated from the customary international law. Thus piracy became illegal and punishable wherever encountered. Piracy continues to exist in modern times. According to the report prepared by the Piracy Reporting Center of the ICC International Maritime Bureau, between January 1 and June 30 1999, there were 115 piracy incidents around the world. Pirate attacks jumped 28 percent in the first quarter of 2002. The total number of piratical incidents from 1984 to the end of March 2002 was 2,626. According to a report issued by International Maritime Bureau (IMB), pirate attacks have   See Janice E. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe, Princeton: Princeton University Press, 1994, 107–108.   “Pirate Attacks Jumped 28% in First Quarter”, The Shipping Times (Singapore), May 10, 2002.  International Maritime Organization, “Reports on Acts of Piracy and Armed Robbery Against Ships”, Annual Report—2001, MSC.4/Circ.16, March 31, 2002, at 1.

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tripled in the last decade. The number of attacks in the first quarter of 2003 had already equaled the total number of recorded pirate attacks for the whole of 1993. For that reason, the United Nations General Assembly, for the first time in 1998, called all states, in particular coastal states in affected regions, to take all necessary and appropriate measures to prevent and combat incidents of piracy and armed robbery at sea. After the September 11 disaster, piracy has been firmly connected to maritime terrorism, though there is no universally accepted definition on terrorism. The Bush Administration wanted to convince the world that terrorism was just as immoral as piracy, slave trading, and genocide. Piracy and maritime terrorism have been since mentioned together in mass media and government statements. Thus piracy constitutes a modern threat to world peace and security. Piracy in the Southeast Asia is not new. It is recorded that as early as the fourteenth century piracy existed in its waters. In the late twentieth century Southeast Asia was categorized as one of the most active piracy zones in the world with seven key “pirate-prone areas.” Recently, piracy incidents increased considerably in Southeast Asia. In the 2000 figure, piracy in the region accounted for 65 percent of the total worldwide number. In 2002, Indonesia remains the world’s most pirate-infested, with 22 of 87 attacks reported worldwide (32 in the Southeast Asian seas) from January to March. The security of navigation through sea lanes in Southeast Asia is of vital interest for the East Asian countries. More than half of the world’s merchant fleet capacity sails through the Straits of Malacca, Sunda and Lombok and the South China Sea.10 More than 10,000 vessels of greater than 10,000 deadweight tonnage (dwt) move   “Pirate attacks have tripled in a decade, IMB report finds”, in http://www.iccwbo. org/home/news_archives/2003/stories/piracy-quarter-1.asp (accessed July 19, 2003).   “Pentagon Policy Chief: Terrorism as Immoral as Genocide”, Dow Jones International News, May 8, 2002.   See Adam Young and Mark Valencia, “Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Reality”, Contemporary Southeast Asia, 25: 2 (2003), p. 269.   For historical background on piracy in Southeast Asia, see Robert C. Beckman, Carl Grundy-Warr and Vivian L. Forbes, “Acts of Piracy in the Malacca and Singapore Straits”, IBRU Maritime Briefing, 1: 4 (1994), pp. 1–4.  They are (1) the Strait of Malacca; (2) the northern tip of Sumatra, near the Benaaten Strait; (3) the Phillip Channel and waters near to the Riau Islands of Indonesia; (4) the South China Sea, near to the Anambas Islands; (5) the South China Sea, east of Pulau Tioman, near to Mangkai; (6) the South China Sea, near to Pedra Branca/Pulau Batu Puteh; and (7) the Bangka Strait. SNSA, press release, May 1992; cited in Beckman et al., supra note 5, at 13.   “Pirate Attacks Jumped 28% in First Quarter.” 10  See Stanley B. Weeks, “Sea Lines of Communications (SLOC) Security and Access”, in Michael Stankiewicz, ed., Maritime Shipping in Northeast Asia: Law of the Sea, Sea Lanes, and Security, IGCC Policy Paper No. 33, Institute on Global Conflict and Co-operation, University of California, February 1998, at 55.

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southward through the South China Sea annually, with well over 8,000 proceeding in the opposite direction.11 In addition, with the fast growth of economy in East Asia, the recent trend to greater intra-Asian trade (relative to trade with Europe and North America) results in more shipping in the littoral waters of Southeast Asia and the South China Sea.12 Thus the sea routes in the region are usually regarded as economic lifelines for the East Asian countries, particularly for Japan. For such reason, it is obvious that acts of piracy in Southeast Asia constitute a great threat to the security of navigation as well as to the safety of vessels and crews. Piracy is traditionally regarded as hostis humani generis, the enemy of the human race. Pirates commit acts of murder, robbery, plunder, rape or other villainous deeds at sea, cruelly against humanity. Therefore it is punishable wherever encountered.13 The law of piracy is designed to eliminate and suppress all acts of piracy in the world. Since piracy is sui generis, the law is to some extent very special in comparison with other laws and embodies two parts, i.e., the international and the domestic. Legal Dilemmas Dilemma 1: Definition The term “piracy” usually refers to a broad range of violent acts at sea. The 1982 United Nations Convention on the Law of the Sea (the LOS Convention) defines it thus: Piracy consists of any of the following acts: (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 to: (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

11  Hal Olson, “Marine Traffic in the South China Sea”, Ocean Yearbook, 12 (1996), at 137. 12  See Stephen J. Meyrick, “Development in Asian Maritime Trade”, in Stankiewicz, ed., supra note 10, at 21. 13 As is said, “a pirate, under the law of nations, is an enemy of the human race; being the enemy of all, he is liable to be punished by all”. Appendix to United States v. Smith, 5 Wheat. (U.S.) 153 (1820), 7–8; quoted in the Harvard Draft Convention, American Journal of International Law, Supplement, 26: 4 (1932), at 763.

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However, the definition provided in the LOS Convention has limitations in respect to the phenomenon of piracy. First, it defines “piracy” as only for “private ends,” though it is argued that such wordings could be given a wider interpretation. It is therefore that the terrorist acts at sea for political ends are generally excluded. That is why after the Achille Lauro incident in 1988,16 the world community needed the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation. Second, according to the above definition, piracy juris gentium presupposes that a criminal act be exercised by passengers or the crew of a ship against another ship or persons or property on its board. The two-vessel requirement is an ingredient of the crime of piracy, unless a criminal act occurs in terra nullius.17 Thus “internal seizure” within the ship is hardly regarded as “act of piracy” under the definition of the LOS Convention.18 Because of the above 14 Article 101, the LOS Convention. United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea, New York: United Nations, 1983, at 34. 15  L.F.E. Goldie, “Terrorism, Piracy and the Nyon Agreement”, in Yoram Dinstein, ed., International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, Dordrecht: Martinus Nijhoff, 1988, at 227. 16 On October 3, 1985, a group of Palestinian guerrillas hijacked the Italian cruise ship Achille Lauro while it was in Egyptian territorial waters. The hijackers demanded the release of 50 Palestinians held in Israel in return for the release of the passengers. They ordered the ship to sail to Syria, which refused them port entry. The hijackers then on October 8 killed an American passenger. Several days later the four hijackers gave themselves up to the Egyptian authorities. On October 11 an Egyptian civilian aircraft was intercepted by United States military aircraft over the Mediterranean Sea and instructed to land at an air base in Sicily. Four Palestinians on board were detained by the Italian authorities and subsequently indicted and convicted in Genoa for offenses related to the hijacking of the ship and the death of the American passenger. 17 Natalino Ronzitti, “The Law of the Sea and the Use of Force Against Terrorist Activities”, in N. Ronzitti, ed., Maritime Terrorism and International Law, Dordrecht: Martinus Nijhoff, 1990, at 1. 18 A different view holds that internal seizures could be piracy. See Samuel P. Menefee, “Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective”, in

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limitations and other alleged deficiencies in the definition, some scholars have suggested revising this definition.19 It is recalled that in 1970 before the Third United Nations Conference on the Law of the Sea (UNCLOS III), the International Law Association suggested a definition on piracy as “unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means,”20 but it was not taken account in UNCLOS III. In addition, since the above definition is only applicable to acts of piracy on the high seas or places outside the jurisdiction of states,21 it has a geographic limitation and can not cover the whole piratical situation in Southeast Asia. The Piracy Reporting Center of the International Maritime Bureau of the International Chamber of Commerce (hereinafter referred to as IMB-PRC) suggested a definition of piracy “as 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,”22 which seems to be accepted by the shipping industry but has not been recognized both in international law and in domestic law. The International Maritime Organization (IMO) has taken the position to divide acts of piracy into two categories by geographical and legal division of maritime zones: piracy in the high seas is defined as “piracy” in accordance with the LOS Convention, while acts of piracy in ports or national waters (internal waters and territorial sea) are defined as “armed robbery against ships.”23 However, we may note that the shortcomings of such a division are obvious: piracy is not equivalent to armed robbery and it may also include other violent acts such as murder, assault and rape. The problem concerning different definitions also affects the number of incidents relating to piratical attacks. As some scholars point out, the definition of the piracy under the LOS Convention may lead to the conclusion that the low

Ronzitti, ed., ibid., at 60. In addition, it is acknowledged that even the internal seizure was not a piracy in international law, it is still a piracy under municipal law of the flag State. 19  See Alfred P. Rubin, “Is Piracy Illegal?” American Journal of International Law, 70 (1976), at 95; see also Clyde H. Crockett, “Toward a Revision of the International Law of Piracy”, De Paul Law Review, 26 (1976), 78–99. 20 International Law Association, “Piracy: Sea and Air”, Report of the Fifty-fourth Conference, August 23–29, 1970, at 708. 21 The reason is that the acts of piracy committed within the sea areas of national jurisdiction are subject to the municipal laws of the State concerned, who is competent to suppress and punish acts of piracy. However, the problem remains whether such competence can produce effective suppression. 22 IMB Piracy Reporting Center, Piracy and Armed Robbery against Ships, Report for the Period of 1 January – 30 June 1998, Kuala Lumpur, July 1998, at 1. 23  See Birgit S. Olsen, “Piracy and the Law”, paper presented to the IMO Seminar and Workshop on Piracy and Armed Robbery against Ships, Singapore, February 3–5, 1999, at 2 (on file with the author).

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incidence of such acts implies that there is no significant problem of piracy today.24 On the other hand, the reported 115 incidents by IMB Piracy Reporting Center in 1999 were simply based upon its own definition. This means that there was no difference between incidents in the high seas and those happened in the territorial seas of coastal States. Otherwise, the number would have been much smaller. However, as the Piracy Reporting Center acknowledged that the number they tallied was the lowest possible figure and true figures could be much higher due primarily to the under-reporting of incidents related to its definition. Finally, the definition problem also exists in the comparison of the international one with the domestic one. The United States law defines “piracy” as “[a]ny act of piracy as defined by international law if the perpetrators are found in the United States; any act of murder, robbery, or hostility against the United States or against a United States citizen on the high seas, by a citizen of the United States; and acts by aliens against the United States or its citizens that are defined as piracy in the treaty between the nation that the individual is a citizen of and the United States.”25 Though making a reference to the definition in international law, it is not clear that the above definition includes both “private ends” as defined in the LOS Convention and “political ends” as defined in the Rome Convention. For most of the countries in the Southeast Asian region, piracy may be subject to punishment in the name of robbery, murder, larceny, or kidnapping according to their criminal law. In this context, the international definition does not carry a significant meaning when piratical activities are found in the waters within national jurisdiction and subject to the punishment under the domestic criminal law of a coastal state. Dilemma 2: Inadequate Legal Regime International law has established an obligation on states to cooperate in suppression of piracy and grants States certain rights to seize pirate ships and criminals. The LOS Convention is a major antipiracy treaty in contemporary era with the following relevant provisions: •

•

Obligation to cooperate: Article 100 of the LOS Convention provides that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” Right to seize pirate ships and criminals: Article 105 provides that “on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by

24  Jason Abbot and Neil Renwick, “Pirates? Maritime Piracy and Societal Security in Southeast Asia”, Pacifica Review, 11: 1 (1999), at 11. 25 United States Code, Title 18, 1651–3; cited in Jack A. Gottschalk, Brian Flanagan, Lawrence Kahn and Dennis Larochelle, Jolly Roger with an Uzi: The Rise and Treat of Modern Piracy, Annapolis, M.D., Naval Institute Press, 2000, at 34.

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piracy and under the control of pirates, and arrest the persons and seize the property on board.” Only warships or military aircraft or similar governmentally authorized ships or aircraft have the power to seize a pirate ship or aircraft.

The above piracy provisions are also applicable to the exclusive economic zone (EEZ). In addition, there are supplementary anti-piracy treaties including: (1) the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention) and the Protocol. • •

•

•

•

It covers the unlawful acts no matter whether they are for political ends or for private ends. It aims to punish any person who commits an offense by unlawfully and intentionally seizing or exercising control over a ship by force or threat thereof; or performing an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or destroying a ship or causing damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship. Each contracting party should take necessary measures to establish its jurisdiction over the above offenses or extradite the offender or the alleged offender to the other contracting party who has the corresponding jurisdiction. The Convention applies to the offenses committed in the ship which is navigating or is scheduled to navigate into, through or from the waters beyond the outer limit of the territorial sea of a coastal state or applies when the offender or the alleged offender is found in the territory of a contracting party other than the previous case. The 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the SUA Protocol) contains similar provisions.

The above two conventions can be regarded as complimentary as anti-piracy legal measures. However, the scope of the territorial application between the LOS Convention and the SUA Convention is different: while the former applies only to the high seas and the EEZ, the latter applies not only the waters beyond, but also waters within national jurisdiction as the SUA Convention clearly states that “[t]his Convention applies if the ship is navigating or is scheduled to navigate into, through, or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.” Different scope of application may cause problems in implementation of the above conventions. The expansion of jurisdictional waters by coastal states under the LOS Convention also causes problems in implementing the above international treaties. The EEZ is a major problem. The EEZ, originally being part of the high

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seas, has perplexed the issue of piracy. Since the articles relating to piracy in the LOS Convention are fully and unchangeably copied from the 1958 Convention, it may query whether these articles are still applicable to the EEZ, as residual rights and/or obligations in question, despite the changed legal status of the latter. The provisions are ambiguous and controversial, particularly in the context of Article 86 (regarding the non-application of the high seas provisions) of the same convention.26 In spite of such ambiguity, it is meaningful to note that similar residual rights and/or obligations have been retained in the LOS Convention formerly belonging to the freedom of high seas, such as the freedom of navigation in the EEZ. Article 58 of the LOS Convention expressly provides that the piracy provisions are applicable to the EEZs in so far as they are not incompatible with the provisions on EEZs of that convention and in compliance with the laws and regulations adopted by the coastal state. Since piracy is closely related to the safety of navigation, states could assume a corresponding duty or right to suppress piracy in the EEZ of other states provided that anti-piracy measures taken by such states are inadequate. The problem is more exacerbated when a certain coastal state is unable to handle effectively acts of piracy occurring within its EEZ. For such reason, it is argued that the piracy provisions in the LOS Convention should apply to the EEZ in so far as they are not incompatible with the rights of coastal States set forth in the LOS Convention. “Since enforcement against a pirate, in normal circumstances, could not be viewed as impinging upon any rights reserved to the coastal State, the law of piracy in the EEZ must be viewed as identical to that applying beyond.”27 The above issue is important to Southeast Asia since most, if not all, of the sea areas will be within the national jurisdiction after the necessary maritime boundary delimitation between/among the interested riparian countries. The piracy provisions in the LOS Convention, once they become the basis for the regional cooperation combating the piracy at sea, are applicable to the EEZs in the region. Second, it is recognized that suppression of piracy within national jurisdiction is a duty and obligation of a coastal state on behalf of the interest of the entire international community as well as for its own interest. Since the EEZ is now within the national jurisdiction of the coastal state, the degree and scope of the applicability of the piracy provisions in the LOS Convention may differ from their application to the high seas. The key question lies on the jurisdictional aspect. The view expressed by Lauterpacht may be insightful. He once said that “if a pirate is chased on the open sea and flees into the territorial maritime belt, the pursuers may follow, attack and arrest the pirate there; but they must give him up to the

26  See Bjorn Aune, “Piracy and Its Repression under the 1982 Law of the Sea Convention”, Ocean Yearbook, 8 (1989), at 29 and 36–7. 27 Thomas A. Clingan Jr, “The Law of Piracy”, in Eric Ellen, ed., Piracy at Sea, Paris: ICC Publishing SA, 1989,, at 170.

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authorities of the littoral state.”28 Accordingly, foreign warships have the right of hot pursuit within the EEZ of a coastal state and the right to arrest the piratical vessel there, but the coastal state may have the right to request the state which has exercised the rights in respect of suppression of piracy to hand over the pirates for trial in the coastal state, if that state intends to do try them. It is to be noted that while most of the East Asian countries acceded to the LOS Convention, not so many such countries have acceded to the other important international convention on the prevention and suppression of piracy and maritime terrorism, i.e., the SUA Convention (see Table 8.1). It is regrettable that two key Straits states Indonesia and Malaysia are still left outside the SUA legal framework despite the fact that these two countries participated in the Correspondence Group under the leadership of the United States regarding the revision of the SUA Convention, which is going on within the IMO.29 The discussion on the Protocol to the SUA Convention is mainly focused on the possible incorporation of the shipboarding regime proposed by the United States (as reflected in the bilateral agreements signed between the United States and relevant flag-state countries) into the SUA Convention. The diplomatic conference on the SUA Convention was held in October 2005 to consider the adoption of two Protocols incorporating substantial amendments aimed at strengthening the SUA Convention in order to provide an appropriate response to the increasing risks posed to maritime navigation by piracy as well as maritime terrorism.30 The 2005 Protocol to the SUA Convention expands the coverage of the unlawful acts under Article 3 of the SUA Convention by adding a new provision to cover: uses against or on a ship or discharging from a ship any explosive, radioactive material or BCN (biological, chemical, nuclear) weapon in a manner that causes or is likely to cause death or serious injury or damage; discharges, from a ship, oil, liquefied natural gas, or other hazardous or noxious substance, in such quantity or concentration that causes or is likely to cause death or serious injury or damage; uses a ship in a manner that causes death or serious injury or damage; transports on board a ship any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, death or serious injury or damage for the purpose of intimidating a population, or compelling a Government or an international organization to do or to abstain 28  See Burdick H. Brittin, “The Law of Piracy: Does It Meet the Present and Potential Challenges?” in Ellen, ed., supra note 27, at 165. 29  See Brad J. Kieserman, “Preventing and Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)”, paper presented to the Conference on “New Developments of the Law of the Sea and China”, Xiamen, China, March 9 –12, 2005, 12 (on file with the author). 30  See “Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation”, at http://www.imo.org/home.asp (accessed March 28, 2005).

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Maritime Security in the South China Sea from doing any act; transports on board a ship any BCN weapon, knowing it to be a BCN weapon; any source material, special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; and transports on board a ship any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.31

Another major development regarding the ship boarding regime, initiated by the United States for the implementation of the PSI (as reflected in the bilateral agreements signed between the United States and relevant flag-state countries), has been incorporated into the SUA Convention. According to Article 8bis of the 2005 Protocol, cooperation and procedures are needed if a state party desires to board a ship flying the flag of a state party when the requesting party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offense under the Convention. The authorization and cooperation of the flag state is required before such a boarding. A state party may notify the IMO Secretary-General that it would allow authorization to board and search a ship flying its flag, its cargo and persons on board if there is no response from the flag state within four hours. A state party can also notify that it authorizes a requesting party to board and search the ship, its cargo and persons on board, and to question the persons on board to determine if an offense has been, or is about to be, committed. The Protocol limits the use of force and includes important safeguarding measures when a state party takes action against a ship.32 Through the above amendments, the controversial boarding regime embodied in the PSI scheme has been legalized under international law, though with modifications and addition of safeguarding measures to ensure that there is no abuse of this boarding right. Finally, the other relevant international treaty is the 2000 UN Convention against Organized Transnational Crime which requires the contracting states to establish their jurisdiction when the offense has been committed on board a ship flying their flags, or in their territories including territorial seas. When a piratical attack or armed robbery involves organized and transnational criminals, this convention can be applied. However, this convention came into force on 29 September 2003.

31 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, at http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_ id=686#review (accessed 26 October 2005). 32 Ibid.

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National Efforts The inadequacy of the international legal regime needs a remedy from domestic legal arrangements. Even a sound legal regime requires effective implementing efforts. China China borders the South China Sea which is located in Southeast Asia. The sea area with its points in Hong Kong, Luzon Island, Hainan Island is called “the Hainan Triangle” which is a pirate resort. Traditionally, China was reluctant to recognize international law as a biding instrument to govern state-to-state relations. However, since the economic reform and open-door policy in the late 1970s, China has been more willing to accept international law. Certainly the process of globalization has pushed all nation states to rely more upon international law. The LOS Convention is the major international convention for the suppression of piracy at the global level. China signed the LOS Convention in 1982 and ratified it in 1996. In addition, China has also ratified the two 1988 Rome legal documents against maritime terrorism. China, as a member state, has participated in activities relating to the piracy issue sponsored by relevant international organizations such as the IMO. Under the Chinese legal system, there is no law on piracy, even such a term as “piracy” in law. However, piracy is subject to the Chinese law and law enforcement via its criminal code. According to its recently amended Criminal Law, certain crimes, particularly some crimes of endangering public security, are relevant to piracy so that the piracy can be punishable under its law. This law also allows China to enforce anti-piracy conventions within the Chinese territory, as it provides that “for the crimes defined in international treaties, concluded or acceded to by the People’s Republic of China, which are under the jurisdiction of the People’s Republic of China within the framework of the treaty obligations, this Law shall apply.” Other relevant laws are Maritime Traffic Safety Law, 1984 (concerning the safety of navigation); Law on the Territorial Sea and the Contiguous Zone, 1992 (establishing the territorial sea and contiguous zone in China and provides the right of hot pursuit to chase and arrest suspected piracy vessels); and Law on the Exclusive Economic Zone and the Continental Shelf, 1998 (establishing China’s jurisdiction in its EEZ and on its continental shelf including the right of hot pursuit). In addition, the Opinion on Strengthening the Safety of Navigation and Fishery in the East China Sea adopted in 1993 is particularly relevant to the suppression of piracy within China’s jurisdictional waters. Despite the above efforts, law enforcement is still weak due to various factors such as lack of effective coast

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guard, vastness of sea areas, and local protectionism of interest.33 It should be pointed out that the rumor that Chinese officials or military men were involved in piracy was finally proved as unfounded. With the rapid growth of its economy, China has been more dependent on energy resources from abroad. Petroleum products are being more frequently transported to China through sea lanes in East Asia, in particular through the Malacca Straits. Eighty percent of its imported oil is shipped to China through this sea lane. For this reason, China recently expressed its deep concerns with the navigational safety of the Malacca Straits and its strong interests in Straits affairs. As reported, China expressed its willingness to help strengthen the maritime security in the Straits though the details have not yet exposed to the public.34 On the other hand, the Straits littoral states welcome China’s assistance. Japan Japan ratified the LOS Convention in 1996 and adopted its own laws on the territorial sea and on EEZ as well. Punishment of piracy is subject to the Japanese criminal code. Recently, Japan has increased its efforts on the piracy issue, particularly after it ratified the SUA Convention in 1998. Japan realized that the frequent occurrence of piratical incidents and the damages they caused became a major threat to Japan’s shipping routes as Japan depends on imports for the vast majority of its oil and other energy supplies and has developed its economy as a trading country.35 It sent delegations to the Philippines, Malaysia, Singapore and Indonesia in September 2000 to make surveys and exchanges of views regarding specific anti-piracy cooperation and supporting measures in each country. In November 2000, Japan’s coast guard patrol vessel visited India and Malaysia to seek bilateral cooperation. Japan also sponsored and organized a series of regional conferences on combating piracy and armed robbery against ships. On the other hand, Japan’s initiatives to combat piracy were made at the same time as Japan expanded its military forces outside its own territory. There is a suspicion in the Southeast Asian region whether Japan takes the advantage of antipiracy and anti-terrorism as a pretext to realize its military expansion which would create concerns among the Asian countries, particularly linking Japan’s recent endeavors to its past of aggression. The recent anti-piracy military drills jointly launched either with India or Malaysia in the South China Sea invited criticism in mass media. As commented, fighting piracy has paid dividends for Japan and 33  For details, see Zou Keyuan, “Piracy at Sea and China’s Response”, Lloyd’s Maritime and Commercial Law Quarterly, August (2000), pp. 364–82. 34  See “Indonesian Foreign Minister: China is Willing to Help Strengthen the Safety of the Malacca Straits”, Liaohe Zaobao (in Chinese), August 2, 2005, at http://www.zaobao. com/gj/yx050802_501.html (accessed August 2, 2005). 35  See Japanese Ministry of Foreign Affairs, “Diplomatic Bluebook 2001”, in http:// www.mofa.go.jp/policy/other/bluebook/2001/chap2-4-d.html (accessed January 26, 2002).

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become a fairly good way to get Japan’s security role in the region accepted.36 Japan continues its joint anti-piracy military drills with other countries including the Philippines, Thailand and Indonesia. In addition, Japan joined the Proliferation Security Initiative (PSI) proposed by the United States.37 In October 2004, it hosted the PSI Maritime Interdiction Exercise off the coast of Sagami Bay and off the Port of Yokosuka.38 Indonesia, Malaysia and Singapore All the three countries ratified the LOS Convention, but only Singapore is the signatory to the SUA Convention. As reported, there has been no piratical incident within Singapore’s jurisdictional waters in recent years. This indicates the effectiveness of Singapore’s law enforcement, though the water area under Singapore’s sovereignty is much smaller than those under the sovereignty of Indonesia or Malaysia. Indonesia has the most serious problem of piracy in the whole Southeast Asian region. It has been long criticized for its slow and ineffective response to piracy. In order to strengthen its fight against piracy, Indonesia has established a number of anti-piracy centers in Medan on Sumatra, on Batam Island, and in Bangka on Sumatra. It needs 239 ships and 115 aircraft to patrol its 13,000 islands effectively but currently has only 115 vessels and 60 aircraft.39 Piracy has frequently harassed Malaysian waters as well, in particular the Strait of Malacca. However, the recent strengthened anti-piracy measures achieved good results. For example, in 2000, there were 75 attacks in the waters off Malaysia, but after the Malaysian authorities took some measures, the number was reduced to 17 in 2001.40 However, the piratical situation in the Malacca Straits is not stable. It

36 Anthony Bergin, “East Asian Naval Developments—Sailing into Rough Seas”, Marine Policy, 26 (2002), at 126. 37  PSI is an effort to consider possible collective measures among the participating countries, in accordance with national legal authorities and relevant international law and frameworks, in order to prevent the proliferation of weapons of mass destruction, missiles, and their related materials that pose threats to the peace and stability of the international community. The PSI is administered by the “core group” countries, which, at present, consist of 15 countries (Japan, U.S., UK, Italy, the Netherlands, Australia, France, Germany, Spain, Poland, Portugal, Singapore, Canada, Norway and Russia). 38  See “The Proliferation Security Initiative (PSI) Maritime Interdiction Exercise hosted by Japan”, October 18, 2004, at http://www.mofa.go.jp/policy/un/disarmament/ arms/psi/exercise-2.html (accessed November 11, 2004). 39  “Ship Owners Urged to Install Anti-piracy Tracking Devices”, Agence FrancePresse, May 8, 2002. 40  “ICC Report Sends Six Warships into Battle against Pirates”, in http://www. iccwbo.org/home/news_archives/2002/piracy.asp (accessed May 11, 2002).

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is reported that after the tsunami disaster in 2004, piracy surged rampantly in the Straits again. There were 28 piratical incidents in March 2005 alone.41 The user states are also concerned with the safety of navigation in the Malacca Straits. For that reason, the United States put forward the so-called Regional Maritime Security Initiative (RMSI) in March 2004. It was designed to implement the “President’s Proliferation Security Initiative and State Department’s Malacca Strait Initiative” with the approach that detailed plans are provided “to build and synchronize interagency and international capacity to fight threats that use the maritime space to facilitate their illicit activity.”42 In order to conduct effective interdiction in the sea it is necessary to use high-speed vessels equipped with special operations forces or Marines. While Singapore supported this American idea, Malaysia and Indonesia are doubtful of whether the RMSI can really play a positive role in curbing piracy and maritime terrorism. They are also suspicious of the American intention whether it would infringe upon their national sovereignty and territorial integrity. In order to prevent the potential American military intervention in the Strait affairs, Malaysia and Indonesia decided to formulate a cooperative patrol to protect this international waterway. Singapore later joined. The tripartite patrol consists of 15–20 military vessels and patrol in the Strait all the year round.43 Due to the severity of the piracy occurrence in the Straits of Malacca, the above three countries have intensified the degree of their trilateral cooperation. In July 2004 the scheme of Malacca Straits Patrols was launched. In the end of July 2005, a scheme of maritime air surveillance was discussed, aiming to strengthen the crackdown of piracy in this critical international waterway.44 In August 2005, the above three countries agreed to implement the scheme of air patrol over the Malacca Straits from September 2005 and also agreed to establish a Tripartite

41  See “The Most Dangerous Sea Area? The Malacca Straits Becomes the Paradise of Pirates Again”, July 28, 2005, at http://news.wenxuecity.com/bbsarticle.php?SubID=ne ws&MsgID=32294 (accessed July 28, 2005). 42  Admiral Thomas B. Fargo, Navy Commander of the U.S. Pacific Command in his testimony regarding U.S. Pacific Command posture before the House of Armed Services Committee of the U.S. House of Representatives. The whole text of the testimony is available at http://www.pacom.mil/speeches/sst2004/040331housearmedsvscomm.shtml (accessed November 11, 2004). 43  See “Indonesia and Malaysia Jointly Oppose American Army to Patrol in the Strait of Malacca”, Lianhe Zaobao (in Chinese), May 8, 2004; and “Piratical Attacks are More Fierce in the Strait of Malacca, Indonesia, Malaysia and Singapore will Prevent this Jointly”, October 9, 2004, at http://www.people.com.cn/GB/guoji/1029/2905373.html (accessed October 9, 2004). 44  See “Singapore and Malaysia Discussed Air Surveillance over the Malacca Straits”, Liaohe Zaobao (in Chinese), July 30, 2005, at http://www.zaobao.com/sp/sp050730_503. html (accessed July 30, 2005).

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Technical Experts Group on Maritime Security.45 It is to be noted that all these tripartite cooperative operations, whether at sea or in the air, are called coordinated patrols, instead of joint patrols. In addition, Singapore is a member of the PSI but Malaysia and Indonesia are skeptical about this initiative and remain outside it. Other ASEAN Countries Countries like the Philippines, Vietnam, Myanmar, Thailand, and Cambodia have suffered piracy, but not so seriously as Malaysia and Indonesia. Since Cambodia and Thailand have not yet ratified the LOS Convention, they are not bound by the treaty obligation under the Convention including the suppression of piracy. However, when the provisions on piracy in the LOS Convention are regarded as rules of international customary law, then the countries outside the Convention should also abide by them. Though not a party member of the LOS Convention, Thailand expressed its willingness to join the recently adopted anti-terrorism agreement among Indonesia, Malaysia and the Philippines. Thailand also considered joining the air surveillance scheme created by Singapore, Malaysia and Indonesia.46 Thailand officially joined the Malacca Straits Patrols by signing the revised Standards Operating Procedures and Terms of Reference for the Malacca Straits Patrols Joint Coordinating Committee on September 18, 2008.47 Finally, it is worth mentioning that the only country in the region which specifically put “piracy” under its penal code is the Philippines. According to the Philippine penal code, the death penalty will be imposed upon those who commit piracy.48 Regional Cooperation After the entry into force of the LOS Convention, the water areas under national jurisdiction have been greatly expanded. Such expansion gives coastal states additional sovereignty or sovereign rights over their respective jurisdictional waters, but on the other, it also brings difficulties in enforcement within these areas, particularly in regard to piracy. It even poses a big problem for some 45  See “Singapore, Malaysia and Indonesia Carry Air Patrol over the Malacca Straits from Next Month”, Liaohe Zaobao (in Chinese), August 3, 2005, at http://www.zaobao. com/sp/sp050803_501.html (accessed August 3, 2005). 46  See “Thailand needs Time to Consider Air Patrol over the Malacca Straits”, Liaohe Zaobao (in Chinese), August 3, 2005, at http://www.zaobao.com/sp/sp050803_509.html (accessed August 3, 2005). 47  See “Thailand Joins Malacca Straits Patrols”, available at http://www.mindef. gov.sg/imindef/news_and_events/nr/2008/sep/18sep08_nr.html (accessed September 19, 2008). 48  See Gabriel V. Trinidad, ed., The Revised Penal Code, 1983 Edition, Quezon City: U.P. Law Center, 1984, at 52.

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small countries which own a vast size of water areas but are lack an effective enforcement mechanism. As is pointed out, pirate attacks often occur in areas where the law enforcement response is either non-existent or negligible.49 Second, the LOS Convention created the EEZ and continental shelf regimes. Accordingly, the high seas are shrunk upon the expansion of territorial seas and EEZs, and the free mobility area in the high seas to control piracy is getting smaller. The question then arises whether the patrol vessels can freely enter into the EEZ areas of other states. Although the provisions in the LOS Convention regarding piracy are applicable in the EEZs, the coastal states may not be very happy to see warships or governmental vessels of other countries pursue and arrest piracy vessels in their EEZs where they have sovereign rights and jurisdiction. The above zoning provisions of the LOS Convention may thus complicate the enforcement of the law of piracy. Potential conflict may arise in this respect and some kind of coordination and cooperation between/among states concerned seems necessary. In November 2002, the Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues (the Joint Declaration) was adopted, which initiated full cooperation between ASEAN and China in the field of non-traditional security issues and listed the priority and form of cooperation. The priorities at the current stage of cooperation include “combating trafficking in illegal drugs, people-smuggling including trafficking in women and children, sea piracy, terrorism, arms-smuggling, money-laundering, international economic crime and cyber crime.”50 In addition, the 2002 Declaration on the Conduct of the Parties in the South China Sea51 also mentions the suppression of piracy and armed robbery at sea. When the coastal state has good reason to believe that a foreign ship has violated its laws and regulations, it may exercise the right of hot pursuit. This can be directed to suspected vessels of piracy. Hot pursuit can begin from internal waters, territorial seas and the contiguous zone or even in the EEZs of the coastal states. The Chinese laws on the territorial sea and on EEZ authorize the Chinese warships or governmental vessels to exercise the right of hot pursuit.52 However, 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.53 For that reason, in the case of piratical attacks occurring within territorial seas, and the attackers then fleeing to the territorial sea 49 Eric F. Ellen, “Piracy”, in Eric F. Ellen ed., Violence at Sea, Paris: ICC Publishing S.A., 1986, at 228. 50  See Joint Declaration of ASEAN and China on Cooperation in the Field of Non-Traditional Security Issues, 6th ASEAN–China Summit, Phnom Penh, Cambodia, November 4, 2002, http://www.aseansec.org/13185.htm (accessed July 2, 2004). 51 Text is available at http://www.aseansec.org/13163.htm (accessed March 28, 2005). 52  See Article 14, Law on the Territorial Sea and the Contiguous Zone; and Article 12, Law on Exclusive Economic Zone and the Continental Shelf. 53 Article 111 (3) of the LOS Convention.

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of another state, it is suggested that a regional cooperative arrangement is required between the affected states to coordinate their enforcement policies. Another serious matter relating to the suppression of piracy is that many pirates have been let go unpunished under domestic law after the hijacked ship had detained. This once happened in Southern China.54 For that reason, in the Petro Ranger incident, the Royal Malaysian Police considered requesting the Chinese government to extradite the pirates to stand trial in Malaysia.55 However, extradition requires an agreement between the two countries concerned, or may be executed under an international treaty to which both countries concerned are the parties. In the Southeast Asian seas, different sea zones are established with the ratification of the LOS Convention by the riparian countries. Therefore the states concerned have the right as well as the treaty obligation to enforce relevant laws and regulations within their respective jurisdictional sea areas, including the suppression and control of acts of piracy therein. Second, as to the sea areas beyond the territorial seas of the countries bordering the South China Sea, a regional cooperation is more required than within the territorial sea. According to some statistics, the average distance of the piratical attacks from shore was 11.55 nautical miles in Indonesian, 68 nautical miles in Northeast Asia, and 94.4 nautical miles in the South China Sea.56 It indicates that most of the piratical attacks occurring in the South China Sea are within the EEZ and/or high sea areas. Thus the provisions on piracy in the LOS Convention are clearly applicable there. However, for piratical incidents within Indonesian waters, they are mainly subject to Indonesian laws. Effective law enforcement is extremely difficult in Southeast Asian seas. A typical example is the South China Sea because of its vastness (more than 200 nautical miles wide) and due to the fact that it is dotted with numerous uninhabited islands to which pirates can easily retreat.57 It is said that the Natunas and Spratly island groups are pirate havens.58 Perhaps the main obstacle to the regional cooperation is the overlapping territorial claims for the islands in the South China Sea. The Spratly Islands are claimed by five adjacent countries—i.e., Brunei, China including Taiwan, Malaysia, the Philippines, and Vietnam—and the territorial dispute has not yet been resolved. Even if the territorial dispute had been solved, there are 54  Personal interview with the officer in IMB-PRC, August 6, 1998. 55 IMB-PRC, supra note 22, at 7. The IMB-PRC regards this as an effective deterrent against piratical attacks. 56  Mark C. Farley, “International and Regional Trends in Maritime Piracy 1989– 1993”, thesis, Naval Postgraduate School, 1993, at 24; cited in Barry Hart Dubner, “Maritime Violence—The Problems with Modern Day Piracy”, Issue Paper No.9/95, Maritime Institute of Malaysia, Kuala Lumpur, at 9. 57  See “IMO to Organise Missions, Regional Seminars on Piracy”, IMOFAX 05/98, 8 April 1998, in http://www.imo.org/imo/briefing/1998/fax05.htm (accessed June 17, 1998). 58 Aune, supra note 26, at 21.

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still boundary delimitation issues in the South China Sea. As is pointed out, disputes over maritime boundaries make the accurate delineation of enforcement responsibility difficult, if not impossible.59 On the other hand, we may realize that while such dispute is an obstacle, it can also be a window of opportunity for cooperation, since under such complicated circumstances, cooperation is the only way for the regional security of navigation. That is why in the recent “track two” conferences on the South China Sea sponsored by Indonesia put on their agenda the safety of navigation and suppression of piracy as one of the areas of possible cooperation among the interested countries bordering the South China Sea.60 The recent proposal of joint development for the disputed areas in the South China Sea may have some instructive effect on the cooperation in piracy suppression. The relevant ASEAN countries together with China do not reject such proposal and on the contrary they have considered it seriously. The problem lies in the formulation of the concrete measures of implementation, the discussion of which is beyond the present chapter. However, such a prospect is helpful for the control of piracy in Southeast Asia. Or in reverse, successful cooperation in controlling piracy can facilitate the joint development of the natural resources in the South China Sea, or cooperation in other areas such as marine environmental protection. Environmental concern bears some relevance to piracy. It is possible that piratical attacks which are directed at oil tankers could cause oil spill disasters at sea. As is stated, the potential for a catastrophic accident involving one or maybe more vessels carrying environmentally damaging cargoes is huge. Also, many piratical attacks have taken place in areas of great natural beauty or of international environmental significance. According to one statistics, over 25 per cent of the pirate attacks recorded in the Violence at Sea database are against a tanker of some description. The potential for environmental disaster resulting from piratical attacks has become a growing concern in the world community.61 In such context, the control of piracy is necessary and helpful for the marine environmental protection in Southeast Asia. There is a wide speculation that some of the piratical incidents which occurred in Southeast Asia involved organized criminals since the hijacking of a whole ship and resale of its cargo requires huge resources and detailed planning. Individual

59 Clingan, supra note 27, at 171. 60  See, for example, the First Meeting of the Technical Working Group on Safety of Navigation, Shipping and Communication in the South China Sea, Jakarta, October 3–6, 1995, in “Workshop and Technical Working Group Statements”, http://www.law.ubc.ca/ centres/scsweb/statement.html (accessed March 20, 1998). 61 The IMB-PRC stated in its report that “the potential for environmental disaster should not be underestimated, as a significant number of attacked vessels drift unsupervised during and after the piratical incidents.” Piracy Report (January–December 1994), December 1994, at 7.

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pirates do not have these resources.62 This new form of piracy makes the antipiracy campaign more difficult. In Southeast Asia, there is some degree of basis for cooperation against piracy. The tripartite cooperation amongst Indonesia, Malaysia and Singapore has already begun. The three countries have been conducting a coordinated anti-piracy patrol off their waters in the Malacca and Singapore Straits and their efforts have resulted in a significant reduction of piracy in that region. However, after the financial crisis in 1997 and political instability in Indonesia, this mechanism is not as frequently used as before.63 This may be one of the reasons why piratical incidents have increased in the region. Another basis is the IMB Piracy Reporting Center which was established in Kuala Lumpur in 1st October 1992. The center acts as a focal point for the industry and liaisons with the law enforcement authorities in the region as well as in the world. Its functions include (1) to receive reports of suspicious or unexplained craft movements, boarding and armed robbery from ships and to alert other ships and law enforcement agencies; (2) to issue regular status reports of piracy and armed robbery via broadcasts on Inmarsat-C through its SafetyNET service; and (3) to collate and analyze all information received and to issue consolidated reports to interested bodies, including IMO.64 Though a liaison and information distributing institution, it may help establish the regional mechanism for piracy suppression or it may expand its functions to have some kind of implementing power to be agreed upon by the states concerned, such as organizing investigations of piracy incidents and training law enforcement personnel of the region. A recent significant step was made by Indonesia, Malaysia and the Philippines, who signed the Agreement on Information Exchange and Establishment of Communication Procedures in May 2002 with a view to preventing the utilization by anyone of their land-air-sea territories for the purpose of committing or furthering such activities as terrorism, money laundering, smuggling, piracy, hijacking, intrusion, illegal entry, drug trafficking, theft of marine resources, marine pollution and illicit trafficking of arms.65 The agreement is open to other ASEAN countries. Following this agreement, the ASEAN ministerial meeting held in Kuala Lumpur in early May 2002 adopted the Work Program to Implement the ASEAN Plan of Action to Combat Transnational Crime, which focuses eight “priority areas” and piracy is one of them. The ASEAN member states agreed to 62  “Organized Crime takes to the High Seas, ICC Piracy Report Finds”, February 4, 2002, in http://www.iccwbo.org/home/news_archives/2002/piracy_report.asp (accessed May 11, 2002). 63 It is reported that Indonesia and Singapore carried a bilateral military drill in their jurisdictional waters in May 2002. See Lianhe Zaobao (Singapore), 16 May 2002. 64 ICC-IMB, Piracy and Armed Robbery against Ships, Annual Report, 1st January – 31st December 1997, at 2. 65  See “Thailand to Join SE Asian Nations in Terrorism Agreement”, Asia Pulse, May 9, 2002.

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work towards the harmonization of laws among themselves in order to effectively deal with the issues of transnational crime, and also agreed to develop programs for joint exercises and simulations in various areas to enhance cooperation and coordination in law enforcement and intelligence sharing.66 The recent regional anti-piracy conferences have produced some positive results in terms of regional cooperation and coordination. For example, heads of coast guard agencies from 16 countries and one region (ten ASEAN countries, India, Sri Lanka, Bangladesh, South Korea, China, Hong Kong and Japan) attended the first regional conference held in April 2000, where three documents were adopted. In a statement “Asia Anti-Piracy Challenge 2000”, the coast guard authorities expressed their intention to reinforce mutual cooperation in combating piracy and armed robbery against ships. The “Tokyo Appeal” calls for the establishment of contact points for information exchange among relevant authorities as well as for the drafting of a national anti-piracy action plan. The Model Action Plan states specific countermeasures based on the Tokyo Appeal.67 A former Japanese shipping line official even proposed establishing a United Nations Coast Guard to battle Asian piracy.68 The most significant development is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia which was formulated for adoption among 16 Asian countries including Bangladesh, Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Sri Lanka, Singapore, South Korea, Thailand and Vietnam. The agreement obliges contracting states (a) to prevent and suppress piracy and armed robbery against ships; (b) to arrest pirates or persons who have committed armed robbery against ships; (c) to seize ships or aircraft used for committing piracy or armed robbery against ships; and (d) to rescue victim ships and victims of piracy or armed robbery against ships.69 For cooperation purposes, the contracting parties should endeavor to render mutual legal assistance as well as extradition for piracy suppression and punishment. In addition, the agreement establishes an Information Sharing Center which is located in Singapore. The agreement came into force on September 4, 2006. Piracy in Southeast Asia is a concern for more than just the countries immediately involved. The effective suppression and control of piracy there can benefit not only the adjacent countries but also the interest of the entire world community. Regional cooperation can play an active as well as effective role in the suppression of piracy, initiate and coordinate the anti-piracy activities to

35.

66  “Asean Plan to Fight Terror”, The Straits Times, May 18, 2002. 67  Japanese Ministry of Foreign Affairs, “Diplomatic Bluebook 2001”, supra note

68  “Call for Creation of UN Anti-Piracy Force”, Maritime Asia, November 12, 1999. 69 Article 3 of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (on file with the author).

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be sponsored by either individual countries or jointly, resolve some potential jurisdictional conflicts arising from the enforcement of law of piracy in Southeast Asia among the coastal states, to facilitate and safeguard the navigation in the seas. It is believed that the countries in the region will make untiring efforts to reach such cooperation. Table 8.1

Ratification of the LOS and SUA Conventions in East Asia

State Brunei Darussalam

The LOS Convention (d/m/y) The SUA Convention (d/m/y) 05/11/1996 04/12/2003

Cambodia

18/08/2006

China

07/06/1996

Indonesia

03/02/1986

01/03/1992

Japan

20/06/1996

23/07/1998

Korea (South)

29/01/1996

14/05/2003

Laos

05/06/1998

Malaysia

14/10/1996

Mongolia

13/08/1996

Myanmar

21/05/1996

19/09/2003

Philippines

08/05/1984

06/01/2004

Singapore

17/11/1994

03/02/2004

25/07/1994

10/10/2002

Korea (North)

Thailand Vietnam

Source: complied by the author. Note: The date here is the date when the depository the United Nations received the instrument of ratification. Taiwan is not a member of the United Nations and not qualified to be a signatory of the LOS Convention.

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Chapter 9

Southeast Asian SLOC Security Joshua H. HO

The Rise of Asia The emergence of China and India as new major global players is expected to transform the regional geopolitical landscape. Behind the rise is a combination of high economic growth rates, expanding military capabilities, and large populations. The combined 2002 gross domestic products (GDP) of China, India, and Japan already total half that of the United States in nominal terms. By 2015, a study by the National Intelligence Council in the United States forecasts that the same combined GDPs will surpass those of the United States and the European Union (EU), reaching US$19.8 trillion (China), US$14 trillion (India), and US$11.6 trillion (Japan), respectively, in 1998 dollars. By 2050, Goldman Sachs projects that the situation will become even more astounding when the three Asian GDPs combined will add up to slightly more than twice the U.S. GDP and about four times that of Russia, the United Kingdom, Germany, France, and Italy combined in 2003 dollars. In 2050, therefore, the largest economies in the world will be China, the United States, and India, respectively, with Japan at a distant fourth. The sheer size of China’s and India’s populations—projected by the U.S. Census Bureau to be 1.4 billion and almost 1.3 billion, respectively, by 2020—implies

 Economic Intelligence Unit, Country Forecast: United States of America, , p. 5; Country Forecast: China, p. 11; Country Forecast: Japan, p. 12; and Country Forecast: India, London, Economic Intelligence Unit, 2003. The 2002 GDPs of the United States, China, Japan, and India are US$11,145 billion (bn); US$1,299 bn; US$3,986 bn; and US$501.2 bn, respectively, in nominal terms.  National Intelligence Council, Global Trends 2015: A Dialogue about the Future with Nongovernment Experts, Washington D.C., National Intelligence Council Publication, 2000, pp. 34–8.   Dominic Wilson and Roopa Purushothaman, “Dreaming with BRICs: The Path to 2050,” Goldman Sachs Global Economics Paper, no. 99, http://www.gs.com/insight/ research/reports/ 99.pdf, October 1, 2003, p. 4 (accessed July 1, 2008). The forecast 2050 GDPs of China, the United States, India, and Japan, are US$45 bn, US$35 bn, US$27 bn, and US$7 bn, respectively, in 2003 dollars.  National Intelligence Council, Mapping the Global Future: Report of the National Intelligence Council’s 2020 Project, Washington D.C., Government Printing Office, December 2004, p. 47.

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that the standard of living there need not approach Western levels in order 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 high growth of 6–7 percent, which, along with an expected population increase from 226 million to around 250 million, would make it one of the largest developing economies. Barring any unforeseen reversals to the globalization process, the rise of these regional powers is virtually guaranteed; this will result in an increase in regional demand for energy and raw materials as factors of production and consumption and will also spur inter-regional and intra-regional trade flow. Because the sea is the major transportation medium for trade and the conveyance of energy and raw materials, dependence on the regional sea lanes will increase. 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. Major Sea Lanes in Southeast Asia The major sea lanes in Southeast Asia are constricted at key straits such as the Straits of Malacca and Singapore Strait, the Sunda Strait, and the Lombok Strait. The Straits of Malacca are 600 miles long and provide the main corridor between the Indian Ocean and the South China Sea. The major sea lanes used by tankers from the Middle East are the Straits of Malacca and the Singapore Strait: around 26 tankers, including three fully loaded supertankers heading for Asian ports, pass through the Singapore Strait daily. Because this strait is relatively shallow, only 23 meters deep at most points, the International Maritime Organization (IMO) has required an under-keel clearance of 3.5 meters for ships transiting the straits, which translates to ships of at most 200,000 deadweight tons (dwt). At its narrowest point, the navigable channel is only 1.5 miles wide. In terms of total volume, more than 200 ships of 300 gross tons and above and of 50 meters or more in length pass through the Straits of Malacca daily—about 60,000 annually—carrying 80 percent of the oil transported to Northeast Asia. In terms of value, the total tonnage carried by the Straits of Malacca amounts to 525 million metric tons worth a total of $390 billion. The traffic volume makes Malacca the busiest straits in the world currently, and it is likely to be even busier in future because of increasing trade flows and energy demands in Asia. According to the   John J. Brandon, “Piracy on High Seas Is Big Business,” International Herald Tribune, December 28, 2000.   Sumihiko Kawamura, “Shipping and Regional Trade: Regional Security Interests,” in Shipping and Regional Security, eds Sam Bateman and Stephen Bates, Canberra: Strategic and Defense Studies Center, Australian National University, 1998, p. 15.

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Lloyd’s List bulletin, new orders for 200 liquefied nitrogen 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 Malacca Straits Ship Reporting System, or STRAITREP. The data from 1999 to 2005 indicate that traffic in the Malacca Straits increased by 42 percent within the six-year period. The Lombok Strait in Indonesia is wider, deeper, and less congested than the Straits of Malacca. It separates the islands of Lombok and Bali. The minimum passage width in the Lombok Strait is 11.5 miles and the depths are greater than 150 meters. Lombok is therefore considered the safest route for supertankers; the bigger types of these eastbound ships sometimes transit this channel. For example, tankers that exceed 200,000 dwt have to divert through the Lombok Strait because of the depth constraints of the Straits of Malacca. Most ships transiting the Lombok Strait also pass through the Makassar Strait between the Indonesian islands of Borneo and Sulawesi, which has an available width of 11 miles and a length of 600 miles. About 3,900 ships transit the Lombok Strait annually; in terms of value, the total tonnage carried by the Lombok Strait is 140 million metric tons worth a total of $40 billion. Ships carrying iron ore from Australia to China also enter the Indonesian Archipelago through the Lombok Strait. The least of the three straits is the Sunda Strait. Located between Java and Sumatra, it is 50 miles long and is another alternative to the Straits of Malacca. Its northeastern entrance is 15 miles wide; because of its strong currents and limited depth, deep-draft ships of over 100,000 dwt do not transit the strait, and it is not heavily used. About 3,500 ships transit the Sunda Strait annually; in terms of value, their total tonnage is 15 million metric tons worth US$5 billion. Important seaborne trade also passes through the Philippine archipelago from either the Pacific Ocean or the Makassar Strait to East Asia. Important shipping routes in the area include one across the Sulu and Bohol seas between the Surigao and Balabac straits used by shipping traveling between Southeast Asia and the Pacific; one from the Makassar Strait across the Sulu Sea to the Mindoro Strait used by ships traveling between the Indian Ocean and Australia and southern China; and one passing between Mindoro and Luzon and then through the San Bernardino Strait to the east and north of Samar. Some of these straits are very narrow. The Philippines also has a complex network of inter-island shipping routes with a high incidence of major shipping disasters. The Sulu Archipelago (comprising the islands of Basilan, Jolo, and Tawi-Tawi) and the Mindanao and

 Tony Gray, “Fears of Growing LNG Carrier Surplus Dismissed by Expert,” Lloyd’s List, In-forma plc, May 13, 2005.  The STRAITREP is a Mandatory Ship Reporting System adopted by the IMO to aid in navigational safety in the Straits of Malacca and Singapore whereby ships transiting the Straits will have to report details of their passage to the respective Vessel Traffic Services (VTS).

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Sulawesi islands all have been neglected by the central governments in Manila and Jakarta for decades. In addition to permitting the transport of oil and iron ore to the major economies in Northeast Asia such as China, Japan, Taiwan, and South Korea, the Straits of Malacca and Sunda Strait also carry a significant amount of container traffic: large ports sit astride both these sea lanes. The ports that lie along the Malacca and Singapore Straits include Singapore as well as Malaysia’s primary port, Port Klang, and Tanjung Pelepas. In Indonesia, Tanjung Priok sits astride the Sunda Strait. Singapore, of course, is a major transshipment hub and overlooks the main east–west route within the global hub and spoke container network. Based on 2007 data, Singapore was the top container port in the world, handling 27.9 million 20foot equivalent units (TEUs); Port Klang (the 16th largest container port) handled 7.1 million TEUs; Tanjung Pelepas (18th largest) handled 5.5 million TEUs; and Tanjung Priok (23rd largest) handled 3.9 million TEUs. Because the Malacca, Lombok, and Sunda Straits are so important to the transport of oil and raw materials—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 is an important issue. In this respect, piracy and terrorism are major threats to the security of shipping in the sea lanes of Southeast Asia. Piracy and Armed Robbery A myth has been perpetuated that the Straits of Malacca and Singapore Strait are both infected with pirates. However, the data observed do not seem to correlate with this view. Taking International Maritime Bureau (IMB) data from the years 2000 to 2005, the total number of piracy attacks in these straits ranged from 26 to 64 per year.10 To the puritan, one piracy attack is one too many, but before any alarm bells are rung we should note the context that these figures represent only a tiny proportion of the ships that transit the straits. The proportion of ships attacked in the Malacca and Singapore Straits ranges from 0.04 percent to 0.11 percent of the total number of ships transiting annually. This figure is dwarfed by figures for crimes committed on terra firma in some countries.11 Furthermore, attacks are predominantly made on vessels proceeding on local voyages as well as on smaller vessels, e.g., fishing vessels or tugs below 1,000 gross tonnes. Relatively

 Ravindra Galhena, “Chinese Record Takeaway,” Containerization International, March (2008), pp. 50–52. 10 Annual International Chamber of Commerce International Maritime Bureau Piracy Reports, 2000–2005. 11 The total number of persons arrested in Singapore in 2007 was 19,371 persons. This translates to 0.4 percent percent of the total population of 4.9 million. See Zul Othman, “Unjustified Fears?” Today, September 15, 2008.

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few attacks occur on mainline “through-traffic” vessels such as oil and gas tankers bound for East Asia. As to the profile of the pirates, it is reported that three types of groups typically perpetrate sea piracy in Southeast Asia: (1) small criminals, (2) well-organized criminal gangs, and—it is claimed by academics—(3) armed separatists.12 Although piracy has occurred in the region for centuries, what makes it dangerous now is that pirate gangs appear to be better equipped and organized than most local naval authorities. They make use of speedboats, modems, radars, satellite phones, Very High Frequency (VHF) radios, and modern weaponry to take control of merchant ships. They also use hijacked ships for human smuggling and the transport of illicit drugs and weapons.13 Crime syndicates involved in piracy incidents take advantage of governments that lack the financial resources, political will, or efficient policing to successfully tackle the pirates’ criminal activities. The emphasis on combating piracy is important because sea piracy has been linked to the threat of maritime terrorist attacks since the events of September 11, 2001. Young and Valencia note that the “conflation of ‘piracy’ and ‘terrorism’ has become common in the U.S. mass media and in government policy statements.”14 However, the authors challenge this conflation, and their article focuses on the difference between piracy and terrorism. Young and Valencia also think that the root causes of piracy and terrorism are different: pirates are financially motivated; terrorists are politically or religiously motivated to redress perceived injustices. This distinction will be key in determining the long-term approaches to combating both phenomena, even if short-term measures may appear to be similar. This view of the different motivating factors behind the pirate and the terrorist has gained wide acceptance in the region. Even so, we must continue to watch for the possibility of an overlap between piracy and maritime terrorism simply because they are operationally 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.

12  Peter Chalk, Grey-Area Phenomena in Southeast Asia: Piracy, Drug Trafficking, and Political Terrorism, Canberra: Canberra Papers on Strategy and Defense, no. 123, Strategic and Defense Studies Center, Australian National University, 1997, chapter 2. 13  William M. Carpenter and David G. Wiencek, “Maritime Piracy in Asia,” in Asian Security Handbook 2000, eds W. Carpenter and D. Wiencek, Armonk, N.Y., M. E. Sharpe, 2000, pp. 92–3. 14  Adam J. Young and Mark J. Valencia, “Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility,” Contemporary Southeast Asia, 25: 2 (August 2003), pp. 270–74.

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Maritime Terrorism Another threat to Southeast Asian resource and trade security is the specter of maritime terrorism. In the new era of globalization, ports have evolved from being traditional interfaces between sea and land to being providers of complete logistics networks, spurred chiefly by containerization. Containerization has made it possible for carriers to shift cargo delivery from a port-to-port focus to a doorto-door focus. This stems from the interchangeability of the various modes of transporting containers (by road, rail, or sea) also known as intermodalism, whereby it has become possible for goods to move from the point of production— without being opened—until they reach the point of sale or final destination. Ports are also being differentiated by their ability to handle the latest generation of container ships coming on-stream. According to a study by Ocean Shipping Consultants, it is expected that by 2010, ships of 8,000 TEUs will be dominant in all trades. Concepts for a container ship of 18,000 TEUs, the draft of which will maximize the available depth of the Straits of Malacca, are already on the drawing board.15 The dual trend for ports is to be providers of complete logistics networks and also venues capable of handling large container ships coming online. This means that high-volume, mainline trade will focus on just a few mega-ports that will become the critical nodes of global seaborne trade. 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 Singapore alone could easily exceed US$200 billion per year from disruptions to inventory and production cycles.16 The shutdown of the ports on the west coast of the United States in October 2002 because of industrial action cost the U.S. up to a billion dollars a day, highlighting the crucial role of hub ports.17 Hub ports therefore are potentially lucrative targets for terrorists. Maritime terrorists could hijack carriers of liquefied petroleum gas (LPG) and turn them into floating bombs to disable ports.18 The immolation of a tanker carrying 600 tonnes of LPG would cause a fireball 1,200 meters wide, destroying almost everything physical and living within this diameter. Beyond, a large number of fatalities and casualties would occur.19 Other possible scenarios for maritime terrorism include 15  Daniel Y. Coulter, “Globalization of Maritime Commerce: The Rise of Hub Ports,” in Globalization and Maritime Power, ed. Sam J. Tangredi, Washington, D.C., National Defense University Press, 2002, pp. 135–8. 16  John H. Noer and David Gregory, Chokepoints: Maritime Economic Concerns in Southeast Asia, Washington, D.C., National Defense University Press, 1996. 17  George Bush, “Remarks by President George W. Bush Re: West Coast Ports Work Stoppage,” White House Briefing, Federal News Service, October 8, 2002. 18  Michael 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. 112–14. 19  Ben Sheppard, “Maritime Security Measures,” Jane’s Intelligence Review, Jane’s Information Group, March 1, 2003.

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detonation in a hub port of a “dirty bomb”—a conventional bomb configured to disperse radioactive material. Such a bomb could be smuggled via a container in a container ship. Besides attacks on hub ports, attacks on shipping could also be an attractive option for maritime terrorists. If such attacks were to become severe, owners and captains might choose to divert from current sea lanes to safer routes. This kind of diversion would likely be costly for industry. A 2002 study done by the U.S. National Defense University concluded that if the Malacca, Sunda, Lombok, and Makassar Straits and the South China Sea were blocked for transit, the resultant extra steaming costs would run US$8 billion a year, based on 1993 trade flows.20 No doubt the cost would be even higher if current trade flows were used for the estimate. The organization that currently appears to be the only real threat to shipping in the Straits of Malacca is the Jemaah Islamiah (JI; lit., Islamic community or organization). The group has shown an interest in attacking shipping in the Straits of Malacca and U.S. naval vessels visiting Singapore.21 Prominent officials have also indicated that commercial shipping could be a potential target. At the 2003 Shangri-La Dialogue,22 Singapore’s then-Deputy Prime Minister Dr. Tony Tan warned that with the hardening of land and aviation targets, the threat of terrorism is likely to shift to maritime targets, particularly commercial shipping.23 Other officials have echoed Tan’s warning. On August 5, 2004, England’s First Sea Lord and Chief of Naval Staff Admiral Sir Alan West warned that al-Qaeda and other terrorist groups were plotting to launch attacks on merchant shipping. He also said that seaborne terrorism could potentially cripple global trade and have grave “knock-on effects” on developed economies.24 Singapore and its Western official counterparts tend to highlight the maritime terrorism threat and to conflate maritime terrorism with piracy to create a sense of 20 Coulter, “Globalization,” p. 139. 21  “Malacca Strait Is Terror Target, Admit Militants,” Lloyd’s List, August 26, 2004; and Singapore White Paper, The Jemaah Islamiyah Arrests and the Threat of Terrorism, Singapore: Ministry of Home Affairs, 2003, pp. 29–30. 22  Started in 2002, the Shangri-La Dialogue is a conference held by the UK’s International Institute for Strategic Studies (IISS) that has involved, at one point or another, defense ministers, deputy ministers, chiefs of defense staff, national security advisers, permanent under secretaries, intelligence chiefs, and other national security and defense officials from Australia, Brunei, Cambodia, Canada, China, East Timor, France, India, Indonesia, Japan, Korea, Malaysia, Mongolia, Myanmar, New Zealand, Pakistan, the Philippines, Russia, Singapore, Thailand, the United Kingdom, the United States, and Vietnam. 23  Dr. Tony Tan, deputy prime minister and minister for defense, Singapore, “Maritime Security after September 11,” Second IISS Asia Security Conference, Singapore, May 30– June 1, 2003. 24  “First Sea Lord Warns of al-Qa’eda Plot to Target Merchant Ships,” Lloyd’s List, Informa plc, August 5, 2004.

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urgency in developing immediate countermeasures to the threat. Both Malaysia and Indonesia have preferred to delink the issue of piracy and maritime terrorism and adopt a low-profile approach. Their predominant Muslim populations and long-held suspicion of Western intentions have led them to pursue a more nuanced and sensitive approach; both countries prefer to emphasize indigenous solutions to the problem and to adopt a long-range view. For Malaysia this means adopting a more moderate version of Islam; in Indonesia’s case it means focusing on strengthening the capacity of the security agencies to handle such threats and economically developing the poorer regions. Despite the different approaches, all three countries, even the initially reluctant Malaysia and Indonesia, have realized the need to adopt visible hard measures, not only as a deterrent but also to assure the international community that something is being done to improve the security of the sea lanes. That said, maritime terrorism remains a low-probability event. For example, over the past three decades maritime terrorist attacks have constituted only 2 percent of all terrorist attacks worldwide. Apart from a small number of hostagetaking incidents, none of these has taken place in the Straits of Malacca.25 National Measures Having detailed the nature of the threats of piracy and maritime terrorism, we can add that the littoral countries have already taken steps to address these issues. Their measures can be classified as national, bilateral, or multilateral. For example, the Indonesian Navy is responding to increasing piracy in its waters by promoting a package of reforms and modernizing the Navy’s ships to push toward a new emphasis on coastal interdiction and more patrols against illegal activities.26 Indonesia has also set up well-equipped Navy control command centers (puskodal) in Batam and Belawan, emplacing special forces that can respond to armed hijackings and piracy.27 The Indonesian chief of naval staff has urged the shipping community to contact the two control command centers if it faces problems with piracy in Indonesian waters. More importantly, Jakarta has shown a greater commitment to tackle piracy at its source, acting against the pirates’ shore lairs and seeking to rein in the corrupt officials and military officers whose acquiescence is necessary for 25  Data converted from Lieutenant Commander Krzysztof Kubiak, Polish Navy, “Terrorism Is the New Enemy at Sea,” United States Naval Institute Proceedings, 129:12 (December 2003), p. 68. 26 Robert Karniol, “Indonesian Navy to Focus on Coastal Interdiction,” Jane’s Defence Weekly, November 12, 2003. 27 Admiral Bernard Kent Sondakh, “National Sovereignty and Security in the Strait of Malacca,” paper delivered at the Conference on “The Straits of Malacca: Building a Comprehensive Security Environment,” Maritime Institute of Malaysia, Kuala Lumpur, October 11–13, 2004, pp. 8–10.

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the pirates to operate with ease. Also, in 2005, the government launched Operation Gurita (Octopus), sending over 20 Indonesian navy ships and several aircraft into waters frequented by pirates which yielded positive results; the operation has been conducted on an annual basis since.28 Indonesia is also in the process of developing an integrated maritime surveillance system (IMSS) comprising of coastal surveillance stations (CSS) equipped with long-range cameras and radars along the Malacca Straits. There will be 12 CSSs to provide surveillance for the entire length of the Malacca Straits and there are plans for 25 CSSs and 40 suitably upgraded vessels to cover the country’s entire coastline.29 On the December 29, 2005, the Indonesian Maritime Security Coordination Board (IMSCB or BAKORKAMLA) was reinvigorated and placed under the coordinating minister for political and security affairs. The board aims to formulate and determine general policy and enhance coordination among the various government institutions in the field of sea security.30 The Indonesian Ministry of Home Affairs has also undertaken dissuasion programs that focus on alleviating poverty and bolstering people’s welfare in remote areas. In particular, the regencies—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 goes to the dozens of regencies that border the other sea lanes of communication (SLOCs) through Indonesia.31 Malaysia has also taken action to keep the piracy rates low in the Malacca and Singapore Straits. The Royal Malaysian Navy has built a string of radar tracking stations along the Straits of Malacca to monitor traffic and has acquired new patrol boats.32 In 2000 at the maritime enforcement level, a special anti-piracy task force was established by the Royal Malaysian Marine Police with immediate acquisition of 20 fast-strike craft and four rigid inflatable boats (RIBs) at a cost of RM 15 million (US$4.12 million). Sixty marine police officers have been trained to form the marine police tactical commando unit. This unit will be assisted by two more elite police forces, the Special Action Forces and the 69 Commando Unit, which will accompany the marine police. The marine police tactical commando unit has 28  Vaudine England, “Free Flow: Piracy Ebbs but Not Cost of Insurance,” International Herald Tribune, May 24, 2006, http://www.iht.com/articles/2006/05/24/ business/transco125.php (accessed February 3, 2009). See also “Piracy in the Malacca Straits Down Thanks to Indonesia Patrols,” Jakarta Post, December 1, 2005. 29 Nick Brown, “Indonesia Moves to Bolster Anti-piracy Surveillance,” Jane’s Defence Weekly, September 27, 2006. 30  Bulletin published by the Indonesian Maritime Security Coordinating Board: IMSCB. 31 Robert Magindaan, “Maritime Terrorism Threat: An Indonesian Perspective,” paper presented at the Observer Research Foundation Workshop on “Maritime Counter Terrorism,” New Delhi, November 29–30, 2004, p. 3. 32 Nick Brown, “Malaysia Asks for Help to Fight Piracy,” Jane’s Navy International, Jane’s Information Group, November 1, 2003.

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been deployed along the Straits of Malacca.33 In addition, the Malaysian police have also deployed assault weapons on tugs and barges plying the busy shipping lanes of the Straits of Malacca in response to two attacks involving tugs in March 2005 after a long absence of piracy in Malaysian waters.34 The government also randomly places armed policemen aboard vessels carrying high-risk cargo through Malaysian waters or entering Malaysian ports.35 The Royal Malaysian Navy has also intensified its training activities and patrols in the northern reaches of the Straits beyond the area of the one-fathom bank, in an effort to increase the naval presence and thus deter both piracy and maritime terrorism.36 Another important measure adopted by the Malaysian Government is the formation of the Malaysian Maritime Enforcement Agency (MMEA), the equivalent of a coast guard, which was set up in November 2005. The MMEA will bring together several existing maritime enforcement agencies such as the Royal Malaysian Marine Police, the Fisheries Department, Immigrations Department, Customs Department, and Marine Department. The consolidation of maritimerelated agencies into a single command of the MMEA is expected to enable more focus and enhance Malaysia’s ability to deal with maritime-related offenses.37 The MMEA will also be involved in enforcement duties and search and rescue. The Royal Malaysian Navy transferred six patrol vessels to the MMEA in June 2005.38 The Philippines have been dogged by resource constraints and have only recently started to tighten its southern borders. It has announced a program called Coast Watch South that is designed to enhance the Philippine Navy’s ability to conduct surveillance and interdiction of security threats in the country’s “southern backdoor.” Developed with help from Australia, the concept envisages the establishment of 17 Coast Watch stations from Palawan to Davao Province

33 Iskander Sazlan, “Counter Maritime Terrorism: Malaysia’s Perspective,” paper presented at the Observer Research Foundation Workshop on “Maritime Counter Terrorism,” p. 13. 34  “Malaysia to Deploy Armed Police on Tugs and Barges,” Lloyd’s List, April 4, 2005. 35  “Malaysia to Put Armed Police on Ships in Malacca Strait,” Channel News Asia, April 1, 2005, http://www.channelnewsasia.com/stories/afp_asiapacific/view/140335/1/. html (accessed February 3, 2009). 36 Admiral Dato’ Sri Mohd. Anwar bin H. J. Mohd. Nor, chief of navy, Royal Malaysian Navy, “Malaysia’s Approach,” presentation at the ASEAN Regional Forum (ARF) Regional Cooperation in Maritime Security Conference, Singapore, March 2–4, 2005. 37 Iskander Sazlan, “Counter Maritime Terrorism,” p. 13. 38 Nick Leong, “RMN to Transfer Six Patrol Ships to New Agency,” Star (Petaling Jaya, Malaysia), April 27, 2005, http://thestar.com.my/news/story.asp?file/2005/4/27/ nation/10767646& sec=nation (accessed April 27, 2005).

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equipped with fast patrol boats and helicopters.39 In addition, data centers will be set up in the southern ports of Davao and Zamboanga to coordinate operations of various state agencies involved in border controls and management. Radar stations will also be built on two areas on the Tawi-tawi chain of islands, the country’s southernmost areas, to track movements of vessels entering and leaving the country.40 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 movement, intensified Navy and coast guard patrols, random escorts of high-value merchant vessels plying the Singapore Strait and adjacent waters, and the redesignation of shipping routes to minimize the convergence of small craft with high-risk merchant vessels.41 In addition to increasing its own patrolling activities, Singapore has cooperated closely with the IMO by implementing amendments to the International Convention for the Safety of Life at Sea in the form of the International Ships and Port Facility Security (ISPS) Code, which came into effect in July 2004.42 Singapore has also signed the 1988 Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). The convention would extend the rights of maritime forces to pursue terrorists, pirates, and maritime criminals into foreign territorial waters; it also provides guidelines for the extradition and prosecution of maritime criminals. Under the U.S. Megaports Initiative, Singapore will install radiation detectors at its ports to scan containers for nuclear and radioactive material.43 The Singapore Navy has formed the Accompanying Sea Security Teams (ASSeT), similar to armed marshals, to board selected merchant ships proceeding into and out of harbor to prevent the possibility of a ship being taken over by terrorists.44

39  “Navy to Seal Off Southern Sea Borders,” Philippine Daily Enquirer, September 25, 2007. 40  Manny Mogato, “Philippines says Plans to Tighten Southern Border,” Reuters, March 13, 2006. 41 Richand Scott, “IMDEX: Singapore Stresses Counters to Maritime Terrorism,” Jane’s Defence Weekly, November 1, 2003. 42 The ISPS Code is an IMO-mandated code that entered into force on July 2004. The code covers ships of over 500 gross tons on international voyages, port facilities serving ships on international voyages, passenger ships, and mobile offshore drilling units. It requires that ships and port facilities carry out security assessments, after which ship and ports are required to create security plans, appoint security officers, and maintain certain security equipment. 43  David Boey, “Radiation Detectors for Singapore Port,” The Straits Times, March 11, 2005. 44  Goh Chin Lian, “Armed Navy Escorts for Suspect Ships,” The Straits Times, February 28, 2005.

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Singapore will also be unveiling the Changi Command and Control (C2) Center in May 2009.45 The center will coordinate local, regional and international efforts against maritime threats. The C2 Center will comprise the Singapore Maritime Security Centre (SMSC), the Information Fusion Center (IFC) and the Multinational Operations and Exercise Center (MOEC). The SMSC, made up of the Navy’s Coastal Command Headquarters, as well as personnel from the Maritime and Port Authority (MPA) and coast guard, will jointly monitor and respond to crisis in and around Singapore waters. The IFC will foster information sharing between regional armed forces and security agencies, enabling each country to respond quickly to potential threats. Lastly, the MOEC will help conduct bilateral and multilateral exercises, such as those held annually under the Five Power Defense Arrangements. Bilateral Measures In addition to 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 strait.46 Singapore and Indonesia have also set up a joint radar surveillance system, known as Project SURPIC, for Surface Picture, which will monitor traffic in the Singapore Strait.47 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 forces from the two countries.48 Beginning in September 2003, Malaysia and Thailand also publicly increased the intensity of their cooperative maritime patrols in the northern portion of the straits because of concerns over arms smugglers, insurgents, and terrorists operating in the area.49 45 T. Rajan, “3 Maritime Centers to be Under One Roof; New Complex will Facilitate Coordination in Dealing with Threats like Piracy, Terrorism,” The Straits Times, March 28, 2007. 46 Robert Go, “Singapore Strait Patrols Keep Pirates at Bay,” The Straits Times, May 16, 2002. 47  “Singapore and Indonesian Navies Launch Sea Surveillance System,” Ministry of Defense (Singapore), news release, May 27, 2005, http://app.sprinter.gov.sg/data/ pr/20050527997.htm (accessed June 2, 2005). 48  Sondakh, “National Sovereignty,” p. 11. 49  “Malaysia and Thailand to Boost Maritime Border Crime Watch,” Agence FrancePresse, September 10, 2003, http://quickstart.clari.net/qs_se/webnews/wed/bl/Qmalaysiathailand-crime. RtY8_DSA.html (accessed May 17, 2005).

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There is also some security cooperation between the Malaysia, Indonesia and the Philippines in the triborder area. Indonesia and the Philippines conduct four coordinated patrols annually in the Celebes Sea, and both sides have agreed to strengthen these patrols to stem arms smuggling into the Sulawesi.50 Malaysia and the Philippines conduct just two coordinated patrols a year. Although the Philippines has proposed year-round coordinated naval patrols, as well as designated sea lanes for all maritime traffic to facilitate easier monitoring and inspection by the three navies, so far none of the states has acted on these proposals.51 Besides the three littoral states, other regional countries have become involved in the security of the Straits of Malacca. Japan for one has been active in facilitating anti-piracy activities in the region. Since 2000, the Japan Coast Guard has been conducting bilateral anti-piracy exercises with security forces throughout the region. Furthermore, Japan provides significant direct assistance to support regional states in their anti-piracy activities. For example, in May 2006 officials announced that Japanese financial aid will provide Malaysian maritime forces with satellite tracking systems, satellite telephones, high-capacity computers, and radio telecommunication systems. Similarly, in 2006 Japan transferred ownership of a maritime security training vessel to Malaysia’s Maritime Enforcement Agency and pledged over US$15 million to Indonesia for the construction of patrol vessels. Japanese aid has not been limited to materiel; the Japan Coast Guard provides subsidized training courses for Southeast Asian coast guard officers and bases technical experts in the region to assist with local capacity building.52 The United States has also taken a lead role in capacity building efforts. In 2006, U.S. legislation authorized the Pentagon to assist foreign countries improve maritime security and counter-terrorism operations under the Global Train and Equip Program (also know as Section 1206 authorization). Indonesia, Malaysia and the Philippines have been among the prime beneficiaries of the program. In 2007–2008, the U.S. provided Indonesia with US$47.1 million worth of equipment to improve its maritime situational awareness capabilities, including the coastal surveillance radars to be installed along the Indonesia side of the Malacca Strait, along the Makassar Strait and in the Celebes Sea. During the same period, Malaysia received US$16.3 million in Section 1206 funding, including US$13.6 million for nine coastal radar stations along the Sabah coast and US$2.2 million to improve aerial surveillance along the Malacca Straits. Since 2006, the Philippines had received US$15.5 million to upgrade its maritime surveillance interdiction capabilities. For 2008–2009, the Pentagon is seeking an additional US$9.5 million 50  “Philippines, Indonesia Vow to Boost Border Patrol Cooperation,” Philippine Star, November 22, 2006. 51  “RP Discussing Anti-terror Sea Lanes with Malaysia, Indon,” Associated Press, March 13, 2006. 52  Greg Chaikin, “Piracy in Asia: International Co-operation and Japan’s Role,” in Piracy in Southeast Asia, eds. Derek Johnson and Mark Valencia, Singapore: ISEAS, 2005, pp. 122–42.

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under Section 1206 funding for coastal radars to be sited in the Sulu archipelago and US$3.5 million for additional radar facilities in Indonesia. While some of the U.S. funding has gone towards improving security in the Straits of Malacca, most has been spent on projects in the Sulu and Celebes seas, also known as the triborder sea area.53 China has also offered the littoral states help with capacity building. In April 2005, China and Malaysia signed a maritime security cooperation agreement and have since agreed to increase the exchange of information and intelligence.54 China concluded a similar agreement with Indonesia in April 2006.55 In addition, Beijing has donated computer equipment to Bakorkamla and offered TNI-AL personnel training in China.56 Since September 2004, the Indian and Indonesian navies have conducted joint patrols of the Six Degree Channel, the waterway just west of the Straits of Malacca that lies between Indonesia’s Sa-bang Island and the coast of Aceh in Sumatra and India’s Nicobar Islands. All international shipping entering or leaving the Straits of Malacca normally transits the Six Degree Channel.57 Also, since 2006, Indian officials have repeatedly offered the littoral states capacity-building assistance, but these offers though welcomed have not yet been translated into concrete programs.58 The U.S. has conducted anti-piracy exercises with Indonesia involving the boarding and inspection of shipping.59 Multilateral Measures In comparison to the bilateral cooperation that exists in Southeast Asia, the multilateral response to piracy and terrorism has been limited in scope and is only now starting to take shape. Although many multilateral forums exist such as the Asia-Pacific Economic Cooperation (APEC), the Association of Southeast Asian 53 Ian Storey, “What’s Behind Dramatic Drop in S-E Asian Piracy,” The Straits Times, January 19, 2009. 54  “Joint Communiqué between the People’s Republic of China and Malaysia,” Xinhua News Agency, December 15, 2005. 55  “China and Indonesia Seal Strategic Pact,” International Herald Tribune, April 26, 2005, http://www.iht.com/articles/2005/04/25/news/indonesia.php (accessed May 9, 2005). 56  “China Provides Technical Assistance to Help Protect RI’s Seas,” Antara News, February 14, 2007. 57  Donald Berlin, “Navy Reflects India’s Strategic Ambitions,” Asia Times Online, November 6, 2004, http://www.atimes.com/atimes/South_Asia/FK06Df05.html (accessed May 17, 2005). 58  “India to Help with Security in the Straits of Melaka,” Bernama, June 27, 2007. 59  “TNI Starts Anti-Piracy Exercise with U.S. Military,” Gatra [Phrase] (Jakarta), May 2, 2005, http://www.gatra.com/2005-05-02/artikel.php?id84037 (accessed May 9, 2005).

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Nations (ASEAN), ASEAN Plus Three, and the ASEAN Regional Forum (ARF), concrete measures have materialized only from the latter two. ASEAN ASEAN comprises 10 nations: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. The ASEAN work program adopted in Kuala Lumpur in 2002 included an agreement to cooperate in eliminating piracy in the region. The program seeks to increase information sharing about piracy through several mechanisms involving ASEAN. It asks member states to disseminate laws, regulations, agreements, and conventions; cooperate with U.N. agencies and the IMB and IMO; and study piracy trends in the region. The work program also proposes training efforts and encourages ASEAN to seek technical and financial assistance from dialogue partners, relevant U.N. bodies, and other specialized organizations. The Bali Accord II, adopted at the ASEAN Summit in Bali in October 2003, declared that maritime issues and concerns are transboundary in nature and therefore shall be addressed regionally in a holistic, integrated, and comprehensive manner. The Plan of Action of the proposed ASEAN Security Community also included recommendations to cooperate mutually and to coordinate border patrols to combat terrorism. ARF The ARF currently comprises 24 countries: the ASEAN countries, plus Australia, Canada, China, the EU, India, Japan, North Korea, South Korea, Mongolia, New Zealand, Pakistan, Papua New Guinea, the Russian Federation, and the United States. The ARF adopted the Statement on Cooperation against Piracy and Other Threats to Maritime Security at the 10th ARF Post-Ministerial Conference held in Cambodia in June 2003. In this document, ARF participants regard maritime security as “an indispensable and fundamental condition for the welfare and economic security of the ARF region.”60 The ARF participants also expressed their commitment to becoming parties to the SUA Convention and its protocol. To date, half of ASEAN have signed the convention, namely Brunei, Myanmar, Singapore, the Philippines, and Vietnam. As a confidence-building measure, the ARF conducted its first multilateral maritime security shore exercise in January 2007.61 60 The Tenth ASEAN Regional Forum, ARF Statement on Cooperation against Piracy and Other Threats to Security, Jakarta: ARF Unit of ASEAN Secretariat, June 17, 2003. 61  “Singapore Hosts First Ever ASEAN Regional Forum Maritime Security Shore Exercise,” MINDEF News, January 23, 2007, http://www.mindef.gov.sg/imindef/news_ and_events/nr/2007/jan/23jan07_nr.html (accessed June 24, 2008).

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ASEAN Plus Three The ASEAN Plus Three forum comprises the ASEAN nations together with China, Japan, and South Korea. ASEAN Plus Three is an attempt to build a regional association that is more limited in its geographic membership than APEC or the ARF. The First ASEAN Plus Three Ministerial Meeting on Transnational Crime (AMMTC3) was held in Bangkok in January 2004. The meeting focused on all types of transnational crime in the region, including terrorism, money laundering, sea piracy, cyber crime, and the smuggling of drugs, arms, and human beings. Attendees vowed to improve communication and enhance intelligence sharing, especially against the growing threat of terrorism in the region.62 The meeting’s joint communiqué recognized that the root causes of transnational crime— including poverty and development gaps—might be addressed within the ASEAN Plus Three cooperative framework.63 In November 2001, at the ASEAN Plus Three Summit in Brunei, Japanese Prime Minister Junichiro Koizumi proposed convening a government-level working group to study formulation of a regional cooperation agreement related to anti-piracy measures. Acceptance of this proposal has led to negotiations for the establishment of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) among representatives of the ASEAN states, China, Japan, South Korea, India, Sri Lanka, and Bangladesh. At a November 2004 meeting in Tokyo, the 16 nations agreed to set up an Information Sharing Center (ISC) in Singapore. It will have the status of an international organization and employ 13–15 full-time staff at full strength, including representatives from the ReCAAP member countries. The ReCAAP ISC was launched on November 29, 2006 in Singapore.64 This was the first time that governments in East, Southeast, and South Asia had institutionalized their cooperation in combating piracy and armed robbery against ships in the form of a permanent body with full-time staff.65 62 Nancy-Amelia Collins, “War on Terrorism ‘ASEAN Plus 3’ Pledges to Combat Transnational Terror,” Clarinews, January 10, 2005, http://quickstart.clari.net./voa/art/ek/ C5EC3E5DB39E-4FB1-872CCDFD76D82D7C.html (accessed April 11, 2005). 63  Joint Communiqué: The First ASEAN Plus Three Ministerial Meeting on Transnational Crime (AMMTC3), Bangkok, January 10, 2004, http://www.aseansec. org/15646.htm (accessed April 11, 2005). 64  The 14 countries that have signed and ratified ReCAAP include Bangladesh, Brunei, Cambodia, China, Japan, Laos, Myanmar, the Philippines, Singapore, Thailand, India, South Korea, Sri Lanka and Vietnam. Although Indonesia and Malaysia have yet to sign or ratify the Agreement, they have expressed support for the ReCAAP ISC at the Batam Meeting of the Foreign Ministers of the three countries held in August 2005. ReCAAP ISC, on its part, has also developed operational links with the Malaysian Maritime Enforcement Agency and the BARKORKAMLA in Indonesia. 65  “Factsheet on the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP),” Singapore, Ministry of Transport, April

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The ISC maintains a database of piracy-related information and facilitate communication between national agencies prosecuting piracy cases; it will critically analyze the whole topic of piracy based on information made available through government agencies. An information network system (IFN), which is web-based, has been developed to support the communications flow and exchange between the ISC and ReCAAP member countries. The expenses of the ISC are funded largely by voluntary contributions from ReCAAP member countries. As the host, Singapore will bear the cost of the premises to house the ISC and the organization’s entire start-up costs, including the development of the IFN, as well as the ISC’s annual cost of operations.66 Japan is also contributing US$350,000 toward supporting the ISC’s activities. Malacca Straits Patrols When the Regional Maritime Security Initiative (RMSI)67 was announced by the U.S. Pacific Command (PACOM),68 the littoral states of Malaysia and Indonesia perceived it as a way for the U.S. to secure its interests in the Straits of Malacca by conducting operational patrols. Both Kuala Lumpur and Jakarta opposed the notion of patrols conducted by extra-regional countries, while Singapore was more open to this option. As a by-product of the RMSI, and in response to concerns expressed by the U.S. over security for vessels transiting the straits, Operation MALSINDO (i.e., Malaysia, Singapore, Indonesia) was born. Currently, 17 ships have been allocated to the patrols, seven from Indonesia, five from Malaysia, and five from Singapore. The first trilateral naval patrols were launched in July 2004; they are aimed at reducing piracy and smuggling activities in the straits, around the clock. Navies patrol only within the territorial waters of their respective countries. Operation MALSINDO is now called the Malacca Straits Sea Patrols and is part of the Malacca Straits Patrols, which encompasses air patrols as well as the security arrangements between the three littoral states. Recently, Thailand has also become a member of the Malacca Straits Patrols.69 20, 2006. 66 Ibid. 67  The RMSI intends to be a partnership of Asia-Pacific nations that are willing to contribute their resources to enhance security. The RMSI aims to build and synchronize inter-agency and international capacity, to harness available and emerging technologies, to develop a maritime situational awareness to match the picture that is available for international airspace, and to develop responsive decision-making structures that can call on immediately available maritime forces to act when required. 68 The USPACOM, based in Hawaii, is a joint command comprising U.S. Army, Navy, Air Force, and Marine Corps assets. 69  “Thailand Joins Malacca Straits Patrols,” MINDEF News, September 18, 2008, http://www.mindef.gov.sg/mindef/news_and_events/nr/2008/sep/18sep08_nr.html (accessed February 3, 2008).

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“Eyes in the Sky” Initiative The “Eyes in the Sky” (EiS) Initiative is also part of the Malacca Straits Patrols. Launched in September 2005 at the behest of Malaysia, the initiative augments the sea patrols and focuses on the conduct of maritime air patrols in the Straits of Malacca by the four littoral countries.70 The participating countries each currently contribute two maritime patrol aircraft (MPA) sorties per week for the EiS; each MPA is allowed to fly above the waters of the states in question no less than three nautical miles from land. Each aircraft 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 Monitoring and Action Agencies (MAAs) in each of the four countries. Depending on whose territorial waters the incident takes place in, the respective MAAs can activate patrols to follow up with action. So far the EiS is still in its first phase, with the four countries as the principal operators of the MPA flights. Under Phase 2, extra-regional countries will be invited to participate in the MPA surveillance flights as well. Singapore, Malaysia, Indonesia and Thailand also signed an agreement to form a Joint Coordinating Committee (JCC) that will oversee the aerial and sea patrols of the Straits of Malacca.71 The JCC will be the channel of communication, intelligence exchange, and coordination for all operational security measures relating to the Malacca and Singapore Straits. Officials also signed the Standard Operating Procedures for the Malacca Straits Patrols. The procedures enshrine the existing bilateral cross-border pursuit arrangements between the four participating countries. There is also an Intelligence Exchange Group (IEG) comprising the naval intelligence agencies of the participating countries. The four littoral countries have also developed the Malacca Straits Patrol (MSP-IS) to aid them in the conduct of patrols.72 The MSP-IS is a data-sharing system that allows users to share information about shipping to boost security in the Malacca Strait. The system includes a reference database on more than 150,000 vessels and is able to detect ships with fake identities. It also allows information 70  Graham Gerard Ong and Joshua Ho, “Maritime Air Patrols: The New Weapon against Piracy in the Malacca Straits,” Institute of Defense and Strategic Studies Commentary 70/2005, October 13, 2005, http://www.idss.edu.sg/publications/Perspective/IDSS702005. pdf (accessed April 12, 2006). 71  Donald Urquhart, “Malacca Strait Air and Sea Patrols Brought under One Umbrella,” Business Times, April 22, 2006. 72  “Inaugural Malacca Strait Patrols Information Sharing Exercise”, MINDEF News, March 28, 2008, http://www.mindef.gov.sg/imindef/news_and_events/nr/2008/mar/ 28mar08_nr.html (accessed June 24, 2008). See also K.C. Vijayan, “Data-sharing System Boost for Malacca Straits Security; New System Allows Speedy Sharing of Info between Countries to Tackle Piracy, Terrorism,” The Straits Times, March 29, 2009.

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of an incident to be passed quickly to agencies in the four littoral states, so that a coordinated response can be delivered. Other Multilateral Arrangements Besides the agreements and arrangements arising out of existing multilateral mechanisms, two other arrangements exist that have not originated from these more formal mechanisms but are nevertheless important. The two arrangements include the Five Power Defense Agreement (FPDA) and the Western Pacific Naval Symposium (WPNS). Five Power Defense Agreement  The FPDA was founded in 1971 and brings together Australia, Malaysia, New Zealand, Singapore, and the United Kingdom in a consultative defense arrangement. The FPDA was formed primarily as a response to the Indonesian Confrontation;73 it calls for mutual consultations if any member state faces a security threat. The agreement’s original focus on conventional threats has now given way to more non-conventional threat scenarios. Recently, the FPDA agreed to expand the scope of its activities to include non-conventional security threats such as maritime terrorism. Members conducted an anti-terror drill as part of Bersama Lima (Together Five) in September 2004. Western Pacific Naval Symposium The WPNS was created in 1988 and brings together 18 member navies, namely those of Australia, Brunei, Cambodia, China, France, Indonesia, Japan, Malaysia, New Zealand, Papua New Guinea, the Philippines, Russia, Singapore, South Korea, Thailand, Tonga, the United States, Vietnam, plus the observer navies of Canada, Chile, and India.74 The administrator of the WPNS is the U.S. PACOM. The WPNS originally was a forum designed to promote mutual understanding among navies of the region and increase naval cooperation in the western Pacific by providing a forum to discuss maritime issues, both global and regional. In the process, the WPNS would generate a flow of information and opinion among naval professionals leading to common understanding and possibly agreement. The symposium has now grown to include regular shore-based and sea exercises and could well form the basis of a U.S.led security architecture in the Asia-Pacific. At the very least, it is an important confidence-building measure that will grow in importance as more countries participate in its activities. It was also decided recently that coast guard agencies 73 The initial underlying rationale for the Five Power Defense Arrangement was that the defense of Malaysia and Singapore remained indivisible and that they still faced common potential threats: most importantly, a revival of the Confrontation (Konfrontasi) approach in the event of reversion to a politically radical leadership in Indonesia like that in 1963 and 1966, which had attempted to destabilize Malaysia, and included Singapore before separation in 1965. 74  WPNS, http://www.apan-info.net/wpns/ (accessed May 13, 2005).

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will be invited to participate in the next WPNS sea exercise to bolster inter-agency coordination and understanding.7557 In May 2005, the WPNS conducted a twoday multilateral sea exercise whose aims included improving the interoperability of participating navies by compiling a picture of the sea situation and the sharing of data through a common data link. Another new initiative is “Connecting Networks for the Enhancement of Knowledge Sharing,” which aims to allow non-navy agencies and intergovernmental agencies to be invited to present topics of interest at workshops and symposia. Towards a Stable Maritime Environment The Asia-Pacific century is poised to begin, with China, India, and Japan leading the way. Fueling the Asia-Pacific engine will be the continued economic growth of China, as well as India, Japan, and the United States. As a by-product and because of regional economic growth, trade flows into and within Asia-Pacific and demand for energy in the region have grown and will continue to grow, leading to an increasing reliance on the sea as a mode of transport. This surge in the use of the sea means that it is ever more crucial to safeguard the sea lanes. An act of armed robbery that occurred in February 2005 shows the transnational character of the threat to shipping in the sea lanes. The incident involved a Japanese tug and occurred in Malaysian waters; the Japanese crew was taken hostage. Perpetrators from Indonesia were suspected to be responsible. The hostages were finally released in the vicinity of southern Thailand after the Japanese owners paid a ransom. In the wake of transnational threats, the littoral states—besides taking individual measures—must move toward a more cooperative regime among themselves and also with other stakeholders to enhance the security of the sea lanes. Because countries in the region share significant maritime interests, the creation of a stable maritime environment needs to remain high on the regional political agenda. However, it is important to also keep in mind the three broad principles espoused by Singapore’s Defense Minister Teo Chee Hean at the March 2005 ARF Confidence Building Measure Conference on Regional Cooperation in Maritime Security: littoral states have the primary role in addressing maritime security issues, other stakeholders have important roles to play, and consultation should be pursued and the rule of international law observed in the implementation of any new initiatives.

75 Rear Admiral Ronnie Tay, “Multilateral Frameworks and Exercises: Enhancing Multilateral Co-operation in Maritime Security,” presentation at the ARF Regional Cooperation in Maritime Security Conference, Singapore, March 2–4, 2005.

Chapter 10

The United States Response to Maritime Terrorism Kristen G. JURAS

Introduction In 1984, Professor Louis B. Sohn and I co-authored a book summarizing the current principles governing the law of the sea. Our publication contained not a single reference to maritime terrorism—evidence of the fact that only 25 years ago, maritime terrorism was not a pressing issue in the area of the law of the sea. How little did we know then that a topic not even worthy of mention in our book would become the focus of international attention in such a short time span. Just one year later, in October 1985, members of the Palestine Liberation Front (PLF) boarded the Italian cruise ship, the Achille Lauro, as passengers. While the vessel was sailing off the coast of Egypt in the Mediterranean Sea, the PLF members seized control of the vessel. They threatened to destroy the ship, its crew and passengers unless Israel released certain Palestinian prisoners. When Israel refused to accede to the terrorists’ demands, the terrorists killed an invalid Jewish American passenger and threw his body and wheelchair overboard. Egyptian President Hosni Mubarak led negotiations with the terrorists, resulting in their surrender and the release of the ship and hostages. The Achille Lauro incident drew the attention of the international community to maritime terrorism. Considerable discussion arose concerning whether the1982 United Nations Convention on the Law of the Sea provisions governing piracy were adequate to address acts of maritime terrorism. The United Nations General   Louis B. Sohn and Kristen Gustafson, Law of the Sea in a Nutshell, West, 1984.   For a description of the Achille Lauro incident and the civil lawsuits filed by members of the victim’s family against the PLF and others, see Dean Alexander, “Maritime Terrorism and Legal Responses”, Transp. L. J., 19 (1991), pp. 1453, 1464–8.  United Nations Convention on the Law of the Sea, Dec. 10, 1982, UN Doc. A/ CONF.62/122 (1982) (hereinafter referred to as the LOS Convention).   Article 101 of the LOS Convention narrowly defines piracy to include any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of one non-government ship against another non-government ship (or persons or property on board) either on the high seas or in a place outside the jurisdiction of any state, such as an island constituting terra nullius. The Achille Lauro incident did not fall within this definition of piracy in that it was committed for political, rather than private,

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Assembly quickly adopted Resolution 40/61, condemning “all acts, methods and practices of terrorism wherever and by whomever committed,” and requesting the International Maritime Organization “to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures.” On March 10, 1988, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation was adopted in Rome, which established a legal regime relating to maritime acts of terrorism. In addition to actively participating in and supporting the International Maritime Organization’s efforts in drafting the 1988 Rome Convention, the United States also took steps on a national level in response to the Achille Lauro incident. In 1986 the United States Congress enacted the International Maritime and Port Security Act. The Act required the United States Secretary of Transportation to prepare annual reports to Congress analyzing the threat from acts of terrorism to United States ports and vessels. Additionally, the Secretary was required to assess security measures maintained at foreign ports determined to pose a high risk of acts of terrorism directed against passenger vessels. The Act also authorized the United States Coast Guard to require inspections, patrol ports and harbors, establish security and safety zones, and develop contingency plans and procedures in an effort to combat maritime terrorism. In 1997 the United States Department of Transportation published Port Security: A National Planning Guide to provide “an overview of the essential aspects of port security,” to identify “many of the challenges facing ports” and to present a common basis for port officials “upon which to establish port security standards”.10 The guide contemplated the publication of “how-to” manuals for ends, and it did not involve two ships. For a discussion of the correlation between piracy and terrorism, see Douglas R. Burgess, Jr., “Hostus Humani Generi: Piracy, Terrorism and a New International Law”, U. Miami Int’l & Comp. L. Rev., 13 (2006), pp. 293.  UN Doc A/RES/40/61, ¶13 (1985).  Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, March 10, 1988, 27 Intl. Leg. Materials 668, reproduced at http://untreaty. un.org/English/Terrorism/Conv8.pdf (accessed January 10, 2008). The Rome Convention entered into force in March 1992. As of November 2007, there were 146 contracting parties.   See generally Malvina Halberstam, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, Am. J. Intl. L., 82 (1988), p. 269. The definition of “terrorism” continues to be a subject of debate today. See Burgess, supra n. 4.   Pub. L. 99-399, title IX, 100 Stat. 889 (1986); 46 U.S.C. App. § 1801 et seq.   33 U.S.C. § 1226. 10 The guide was produced under the direction of the U.S. Secretary of Transportation’s Office of Intelligence and Security in conjunction with the U.S. Maritime Administration and the U.S. Coast Guard. Input was also sought from the commercial maritime industry and other federal agencies. It is available at http://www.uscg.mil/hq/g-m/nmc/security/ portplan.htm (accessed January 10, 2008).

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planning and conducting the daily operations of port security, including topics such as developing port security plans, controlling access to port facilities, cargo security, and maritime terrorism. The 1997 report noted that “port security must be included in the national transportation planning framework that establishes priorities for allocation of resources for governmental and private funding of infrastructure investments.” In 1998, the United States Congress directed the Secretary of Transportation to form a taskforce to assess the adequacy of the United States’ marine transportation system11 to operate in a safe, efficient, secure, and environmentally sound manner. In September 1999, the taskforce submitted to Congress An Assessment of the U.S. Marine Transportation System.12 The taskforce identified seven strategic areas for action, including the security of the nation’s marine transportation system. The report noted several areas of concern regarding marine transportation, including the lack of integrated federal leadership; the lack of shared approaches to security; the absence of a systemic and integrated approach to track cargo, people, and vessel operations; and the ability of ports to address terrorism and sabotage threats. As a result of this report, in 2000 18 federal agencies signed a memorandum of understanding forming a new Interagency Committee for the Marine Transportation System (ICMTS)13 to ensure the development and implementation of national marine transportation system policies consistent with national needs and to report to the president its views and recommendations for improving the system. The ICMTS established a Security Committee responsible for addressing the physical security of ports, vessels and waterways and their infrastructures; cargo, crew and passenger security; and improvements in efficiency and communication between agencies with security responsibilities. Additionally, in 2000 the Secretary of Transportation established the Marine Transportation System National Advisory Council (MTSNAC).14 The MTSNAC consists of 30 industry leaders representing every element of the marine transportation system. The purpose of the MTSNAC is to advise the Secretary of Transportation on issues, policies, plans, and funding solutions needed to ensure 11 The “marine transportation system” includes waterways, ports, and their intermodal connections with highways, railways, and pipelines. As noted in U.S. Department of Transportation, Maritime Administration, An Assessment of the U.S. Marine Transportation System (Sept. 1999), it consists of more than 1,000 harbor channels and 25,000 miles of inland, intracoastal, and coastal waterways in the United States and serves over 300 ports, with more than 3,700 terminals that handle passenger and cargo movements. The waterways and ports link to 152,000 miles of rail, 460,000 miles of pipelines, and 45,000 miles of interstate highways. The marine transportation system also contains shipyards and repair facilities crucial to maritime activity. 12 The report is available at http://www.marad.dot.gov/publications/MTSreport/ index.html (accessed January 10, 2008). 13  See http://www.marad.dot.gov/marad_mts.html (accessed January 10, 2008). 14  For further information on the MTSNAC, visit the MTSNAC website at http:// www.mtsnac.org (accessed January 10, 2008).

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that the United States marine transportation system is capable of responding to the projected trade increases. Another important national development in 2000 was the publication of the Report of the Interagency Commission on Crime and Security in U.S. Seaports.15 The report noted the lack of adequate standards for physical, procedural, and personnel security for seaports. The report rated the security at most United States seaports as ranging from “poor to fair.” Building upon the foundation of the various activities and reports described above, in July 2001 Senator Ernest F. Hollings introduced Senate Bill 1214, The Port and Maritime Act of 2001, to establish a program to ensure greater security at United States ports. The proposed legislation incorporated several of the recommendations contained in the Report of the Interagency Commission on Crime and Security in U.S. Seaports. Thus, the United States Congress was well positioned to move forward with increased port security measures when the September 11, 2001 terrorist attacks against the World Trade Center occurred in New York City. The United States response to the September 11, 2001 attack was swift and many-faceted. On October 7, 2001, President Bush ordered United States Armed Forces to begin combat action in Afghanistan against al-Qaeda terrorists and their Taliban supporters.16 On October 8, 2001, President Bush established the Office of Homeland Security to develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks.17 On October 26, 2001, the president signed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (USA PATRIOT Act).18 The PATRIOT Act was a comprehensive piece of legislation, implementing significant changes to both substantive and procedural criminal law, immigration law, money-laundering statutes and other areas of law. As a part of its overall response to the terrorist 15 The Commission was formed by President Bill Clinton in 1999 to undertake “a comprehensive review of the nature and extent of seaport crime and the overall state of security in seaports.” The final report is available at http://www.securitymanagement.com/ archive/library/seaport1200.pdf (accessed January 10, 2008). 16  See the president’s letter to Congress informing them of his decision to initiate combat at http://www.whitehouse.gov/news/releases/2001/10/20011009‑6.html (accessed January 10, 2008). 17  See http://www.whitehouse.gov/news/releases/2001/10/20011008‑2.html (accessed January 10, 2008). The Homeland Security Act (HSA) of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) created the Department of Homeland Security in the largest government reorganization in 50 years. The Department superseded, but did not replace, the Office of Homeland Security, which retained an advisory role. The U.S. Coast Guard (formerly part of the Transportation Department), U.S. Customs Service (formerly part of the Treasury Department), and the Immigration and Naturalization Service (formerly a part of the Department of Justice) were reorganized under the Department of Homeland Security. 18  Pub. L. No. 107-56, 115 Stat. 272. (2001).

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attacks, the United States also implemented significant changes to its maritime policies, both on a national and international level. Legislative Response: The Maritime Transportation Security Act of 2002 In 2002, Congress focused on legislation to improve the security of its maritime transportation system. Congress recognized the importance of the nation’s 361 public ports as an integral part of the nation’s commerce, which handles approximately 95 percent of United States trade from overseas (exclusive of Canada and Mexico transborder shipments).19 Building upon Senator Holling’s 2001 proposed legislation as a platform, in November 2002 Congress enacted the Maritime Transportation Security Act20 to protect the nation’s ports and waterways from terrorist attacks. The Maritime Transportation Security Act of 2002 established the following cornerstones of a national port security program: 1. assessment of the vulnerability21 of vessels and national port facilities to terrorist attacks and other transportation security incidents;22 2. development and implementation of national and regional maritime security plans, as well as individual security plans for (a) port facilities and related infrastructure (such as factories, cargo terminals, and power plants) and (b) certain individual cargo and passenger vessels;23 19  In its findings, Congress also determined that current inspection levels of containerized cargo were insufficient, due in part to inadequate scanning technology. Congress also expressed concern over the lack of procedures to limit individual access to secure areas in port facilities. See Section 101 of the Maritime Transportation Security Act, Pub. L. No. 107-295, 116 Stat. 2102 (2002). 20  Pub. L. No. 107-295, 116 Stat. 2102 (2002). 21 The assessment must identify critical assets and infrastructures, threats to those assets and infrastructures, and weaknesses in physical security, passenger and cargo security, structural integrity, protection systems, procedural policies, communications systems, transportation infrastructure, utilities and other areas. The vulnerability assessment must be updated every five years. 46 U.S.C. § 70102. See generally U.S. Department of Homeland Security, Vulnerability Assessment Methodologies Report A-8 (July 2003), available at http://www.ojp.usdoj.gov/odp/docs/vamreport.pdf (accessed January 10, 2008). 22  A “transportation security incident” is defined as a “security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.” 46 U.S.C. § 70101. 23  46 U.S.C. §§ 70103, 70104. The national plan must include (1) assignment of duties and responsibilities among federal agencies and coordination with state governments; (2) establishment of a surveillance and notice system to ensure the earliest possible notice of a transportation security incident to the appropriate federal and state agencies; (3) a response plan for ensuring that the flow of cargo through United States ports is reestablished as efficiently and quickly as possible. In addition, the Secretary must designate regional

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3. prohibition of entrance of individuals to secure areas of port facilities unless the individual has been issued a biometric transportation security card;24 4. the assessment of the effectiveness of the antiterrorism measures maintained at foreign ports25 and implementation of conditions restricting entrance of vessels into the United States if departing from any foreign ports that do not maintain effective antiterrorism measures;26 5. the implementation of automatic identification and other security systems for vessels (intended to implement the international maritime security regime developed in 2002 under the auspices of the International Maritime Organization);27 6. the establishment of standards for screening cargo prior to loading in a foreign port for shipment to the United States and for securing cargo while in transit.28 The Coast Guard, under the direction of the Secretary of Homeland Security, has significant responsibility for implementation of the various measures adopted by Congress to improve the security of United States ports and marine transportation systems.29 In July 2003 the Coast Guard published interim rules implementing the Maritime Transportation Security Act, which became final on October 22, 2003.30 areas for which an Area Maritime Transportation Security Plan must be established, to be implemented in conjunction with the national security plan. 24  Biometric identification relies on physical characteristics that are unique to each person to ascertain the identification of an individual. Biometric identification can include scanning of fingerprints, retina or iris, and voice identification. The cards have been designated as “Transportation Worker Identification Credentials,” or “TWICs.” 33 C.F.R. § 101.105. 25  46 U.S.C. § 70108. 26  46 U.S.C. § 70110. 27  46 U.S.C. §§ 70114 - 70115. In the same time frame that the Maritime Transportation Security Act was being drafted and enacted, the International Maritime Organization was drafting a comprehensive security regime to strengthen maritime security and prevent and suppress acts of terrorism against shipping, including implementation of automatic identification and tracking systems. Its efforts resulted in the adoption of a number of amendments to the 1974 Safety of Life at Sea Convention (SOLAS), the most far-reaching of which were the new International Ship and Port Facility Security Code (ISPS Code). IMO Doc. SOLAS/CONF.5/34, annex 1 (Dec. 12, 2002) (containing Resolution 2 of the December 2002 conference, which contains in its annex the ISPS Code), available at http:// www.imo.org (accessed January 10, 2008). 28  46 U.S.C. § 70116. 29  Prior to September 11, 2001, the Coast Guard operated under the auspices of the Department of Transportation. Jurisdiction over the Coast Guard was transferred to the Department of Homeland Security after its establishment under The Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 30 Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 60,448 (Oct. 22, 2003).

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Agency Response: C-Tpat and the Container Security Initiative The United States Customs and Border Protection (formerly the United States Customs Service) is the agency primarily responsible for inspecting cargo entering the United States.31 It was one of the first United States agencies to take steps after the September 11, 2001 terrorist attacks to improve maritime security. In November 2001, it announced its voluntary Customs–Trade Partnership Against Terrorism (C-TPAT) program, and in January 2002 it announced its Container Security Initiative. Under the C-TPAT program, United States Customs officials review the compliance history, security profile and practices of private companies who volunteer to participate in the program. Over 7,400 companies are enrolled, including importers, customs brokers, forwarders, terminal operators, carriers, foreign manufacturers and other entities in the international supply chain and transportation system. If a company is certified, it receives certain benefits, such as reduced examinations of cargo or reduced delays if their cargos are examined.32 In October 2006, the C-TPAT was officially enacted as part of United States law with the enactment of the Security and Accountability for Every Port Act (SAFE Port Act).33 Most of the world’s non-bulk cargo travels in marine shipping containers.34 After the September 11, 2001 terrorist attack, attention quickly shifted to the possibility that containers could be used to conceal weapons of mass destruction or terrorists.35 In January 2002, United States Custom announced the Container Security Initiative, consisting of four core elements: 31  Previously a division of the Department of Treasury, the United States Custom Service became a part of the Homeland Security Department in March 2003. It is now officially referred to as the United States Customs and Border Protection. 32 U.S. Customs and Border Protection, Securing the Global Supply Chain: CustomsTrade Partnership Against Terrorism (C-TPAT) Strategic Plan (November 2004), available at http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/ctpat/ctpat_ strategicplan.ctt/ctpat_strategicplan.pdf (accessed January 10, 2008). 33  Pub. L. No. 109-347, §§ 211-223, 120 Stat. 1884 (2006). 34 Approximately 90 percent of the world’s trade moves by cargo container. See U.S. General Accounting Office, Container Security: Expansion of Key Customs Programs Will Require Greater Attention to Critical Success Factors (GAO Report 03-770 July 2003). For the period 1999 to 2004, United States container imports increased by 58 percent. As of year-end 2004, the world containership fleet was comprised of 3,375 vessels of 7.2 million TEUs. U.S. Maritime Administration Office of Statistical and Economic Analysis, Containership Market Indicators (August 2005), available at http://www.marad.dot. gov/MARAD_statistics/2005%20STATISTICS/Container%20Market%20Indicators.pdf (accessed January 10, 2008). 35 OECD Maritime Transport Committee Report, Security in Maritime Transport: Risk Factors and Economic Impact (July 2003) available at http://www.oecd.org/ dataoecd/19/61/18521672.pdf (accessed January 10, 2008).

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1. development of security criteria to identify high-risk containers, 2. pre-screening those containers identified as high-risk before they arrive in United States ports in cooperation with foreign governments, 3. use of scanning technology to quickly pre-screen high-risk containers, and 4. development of smart and secure containers.36 United States Customs identified 20 ports as potential Container Security Initiative partners, based upon the highest volume of ocean container shipments to the United States. Within its first year, agreements had been entered with 15 foreign governments for the placement of United States Customs personnel at 24 foreign ports (including 18 of the 20 target ports).37 When United States Customs personnel ran into legal and logistical problems that made it difficult for them to obtain vessels’ cargo manifests, an essential component in identifying potential high-risk containers for screening, Customs adopted the “24-Hour Rule.” This rule requires all sea carriers (with the exception of bulk carriers) to provide proper cargo descriptions and valid consignee addresses 24 hours before cargo is loaded at the foreign port for shipment to the United States.38 The OECD reported that this rule, which exceeded existing international requirements as established under the ISPS Code, was “probably the most contentious of all of the security measures announced to date.”39 36 Each container trip to the United States has, on average, 17 different stops, or points at which the container’s journey temporarily halts. Security measures need to be layered, with checks at multiple stages on a container’s journey, including gaining information about which containers might be risky, creating uniform procedures regarding packing and moving goods so that anomalies will be seen more easily, limiting access, and improving screening and tracking technologies. Stephen S. Cohen, “Boom Boxes: Containers and Terrorism”, in John D. Haveman and Howard J. Shatz, eds, Protecting the Nation’s Seaports: Balancing Security and Cost, Public Policy Institute of California, 2006, available at http://www.ppic. org/content/pubs/report/R_606JHR.pdf (accessed January 10, 2008). 37 Two of the twenty priority ports, Shanghai and Yantai, are located in China. Although China did not sign a bilateral agreement, it agreed “in principle” to participate in the Container Security Initiative. U.S. General Accounting Office, Container Security: Expansion of Key Customs Programs Will Require Greater Attention to Critical Success Factors, p. 20. United States Customs planned to have a total of 58 ports participating in the Container Security Initiative by the end of 2007. U.S. General Accounting Office, Maritime Security: The SAFE Port Act: Status and Implementation One Year Later (GAO Report 08-126T October 2007), p. 31. 38 The 24-hour rule became fully effective on February 2, 2003. Section 343 (a) of the Trade Act (Public Law 107-210—as amended) required the promulgation of regulations by October 1, 2003 to provide for the mandatory collection of electronic cargo information by United States Customs prior to importation into or exportation from the United States. 39  For a general discussion of the 24-Hour Rule and international reaction, see OECD Maritime Transport Committee Report, Security in Maritime Transport: Risk Factors and Economic Impact, pp. 138–46.

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United States Customs has developed the “Automated Targeting System” to assess the risks of individual cargo containers by using a complex mathematical model to assign a risk score to each arriving shipment based on shipping information.40 If a shipment is determined to be high risk, United States Customs personnel refer the shipment to the foreign port officials, who then make the decision whether or not to inspect the shipment. Since the adoption of the Container Security Initiative, United States Customs has worked diligently to develop hightechnology scanning equipment in an effort to make inspections more efficient. The SAFE Port Act of 2006 incorporated the Container Security Initiative into law, and required all containers entering the United States through the 22 highestvolume United States ports to be scanned for radiation by July 2007.41 The Act authorized the Department of Homeland Security to establish a pilot program at several overseas ports to determine if 100 percent scanning of containers bound for all United States ports would be possible in the future. The Act also required pilot testing of new integrated scanning systems that combine non-intrusive imaging equipment and radiation detection equipment. In 2007, the Department of Homeland Security initiated the Secure Freight Initiative at six foreign ports, using a combination of existing technology and nuclear detection methods to test whether 100 percent scanning can be accomplished.42 Under the Megaports Initiative established by the Department of Energy’s National Nuclear Security Administration, the United States has installed radiation detection equipment at eight foreign ports as of August 2007, to enable foreign government personnel to screen shipping containers for nuclear and other radioactive material.43 The Implementing Recommendations of the 9/11 Commission Act of 2007 amended the SAFE Port Act requirements by requiring all containers bound for the United States to be screened for radioactive materials by July 1, 2012, with exceptions to be given on a case-by-case basis under strict parameters.44 The requirement of 100 percent scanning of United States-bound containers has raised objections throughout the international community.45 The United States General

40  U.S. General Accounting Office, Maritime Security: The SAFE Port Act: Status and Implementation One Year Later, p. 27. The SAFE Port Act requires the United States Customs and Border Protection to take additional actions to improve the Automated Target System. Pub. L. No. 109-347, § 203(e) (2006). 41  Pub. L. No. 109-347, § 121. 42  Blank Rome Counselors at Law, The Requirement for 100% Scanning of Cargo: Impediment to Trade or Technologic Opportunity? (Sept. 2007) available at http://www. blankrome.com/index.cfm?contentID=37&itemID=1348 (accessed January 10, 2008). 43  U.S. General Accounting Office, Maritime Security: The SAFE Port Act: Status and Implementation One Year Later, p. 41. 44  Pub. L. No. 110-53, § 1701(a), 121 Stat. 266, 489-90. 45  See World Shipping Council, Statement Regarding Legislation to Require 100% Container Scanning (July 2007).

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Accounting Office has also raised several concerns regarding the 100 percent scanning requirement in recent testimony before Congress.46 Both the C-TPAT and Container Security Initiative have served as world-wide models to improve security of the global supply chain. In June 2005, member countries of the World Customs Organization adopted the WCO Framework of Standards to Secure and Facilitate Global Trade. The SAFE Framework consists of four core elements, including (1) harmonizing the advance electronic cargo information requirements on inbound, outbound and transit shipments; (2) adoption by all participating countries of a consistent risk management approach to address security threats; (3) providing for inspection of high-risk containers upon the reasonable request of a receiving nation, using non-intrusive detection equipment such as large-scale X-ray machines and radiation detectors and (4) establishing benefits to be provided to businesses that meet minimal supply chain security standards and best practices.47 Executive Response: Proliferation Security Initiative In May 2003 President George W. Bush announced the Proliferation Security Initiative as an international effort to stop the shipment of “weapons of mass destruction,” or “WMD.”48 Ten countries originally joined with the United States to shape and promote the Proliferation Security Initiative, including Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, and the United Kingdom. Other nations, including Canada, Norway, Russia, and Singapore, have since joined the effort and some 40 additional states have voiced support for the initiative. The nations initially participating in the initiative released a set of principles September 4, 2003,49 which set forth the purpose of the PSI as: to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national

46  U.S. General Accounting Office, Maritime Security: The SAFE Port Act: Status and Implementation One Year Later, pp. 43–6. 47 As of September 11, 2007, 148 WCO member countries had signed letters of intent to implement the SAFE Framework. World Customs Organization, WCO SAFE Framework of Standards (June 2007) available at http://www.wcoomd.org/files/1.%20Public%20files/ PDFandDocuments/SAFE%20Framework_EN_2007_for_publication.pdf (accessed January 10, 2008). 48  See press release, U.S. Department of State, Proliferation Security Initiative (May 26, 2005), www.state.gov/t/np/rls/other/46858.htm (accessed January 10, 2008). 49 The interdiction principles can be found on the U.S. State Department’s website at http://www.state.gov/t/np/rls/fs/23764.htm (accessed January 10, 2008).

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legal authorities and relevant international law and frameworks, including the U.N. Security Council.

The Statement identifies four practical ways that participating states can pursue the Proliferation Security Initiative’s overall objective: 1. by undertaking effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD or related materials; 2. by adopting streamlined procedures for rapid exchange of relevant information concerning suspected proliferation; 3. by reviewing and working to strengthen relevant national and international legal authorities where necessary to accomplish these objectives; and 4. by taking specific actions in support of interdiction efforts regarding cargoes of WMD or related-materials. The United Nations endorsed the Proliferation Security Initiative when the UN Security Council unanimously adopted Resolution 1540 on April 28, 2004.50 However, several major maritime countries, including China and North Korea, have not joined the Proliferation Security Initiative. The 2005 National Strategy for Maritime Security In December 2004, President Bush directed the Secretaries of the Department of Defense and Homeland Security to lead the federal effort to coordinate various United States agency maritime security programs “to achieve a comprehensive and cohesive national effort involving appropriate Federal, State, local, and private sector entities.” This effort resulted in the National Strategy for Maritime Security, announced on September 20, 2005.51 The document identifies the nation’s maritime security objectives to include: 1. the prevention of terrorist attacks and criminal or hostile acts; 2. the protection of maritime-related population centers and critical infrastructures; 3. minimizing damage and expediting recovery in the event of a terrorist attack or other significant event; 4. safeguarding the ocean and its resources.

50 UN DOC. S/RES/1540 (2004). 51  http://www.whitehouse.gov/homeland/maritime‑security.html (accessed January 10, 2008).

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To achieve these objectives, the document identifies the following five strategic actions: 1. 2. 3. 4.

enhance international cooperation; maximize awareness of the “maritime domain;”52 embed security into commercial practices; deploy layered security that “integrates the capabilities of governments and commercial interests throughout the world;” and 5. assure continuity of the marine transportation system. Reducing Crime and Terrorism at America’s Seaports Act of 2005 The USA PATRIOT Improvement and Reauthorization Act of 2005 (the Act)53 enacted several criminal measures to penalize terrorist activities committed at U.S. seaports or aboard vessels. It is a federal crime to use fraud or false pretenses to enter federal property, a vessel or aircraft of the United States, or the secured area in an airport.54 Section 302 of the Act extended the crime to seaports and increases the period of imprisonment for violations from five to ten years. Section 303 of the Act establishes a new crime making it illegal, in the case of a vessel subject to the jurisdiction of the United States, to fail to heave to, or to forcibly interfere with the boarding of the vessel by federal law enforcement or resist arrest, or to provide boarding federal law enforcement officers with false information concerning the vessel’s cargo, origin, destination, registration, ownership, nationality or crew.55 The crime may be punished by imprisonment for up to five years. Section 304 of the Act makes it unlawful to place a dangerous substance or device in the navigable waters of the United States with the intent to damage a vessel or its cargo or to interfere with maritime commerce. This new crime is punishable by imprisonment for any term of years or for life (or the death penalty if death results).56 Section 304 also makes it unlawful to tamper with any

52  The maritime domain is defined to include “all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway, including all maritime-related activities, infrastructure, people, cargo, and vessels and other conveyances.” 53  Pub. L. 109-177, 120 Stat. 233 (2005) 54  18 U.S.C. § 1036. 55  Pub. L. 109-177 § 303(a), adding new 18 U.S.C. § 2237. 56  Pub. L. No. 109-177, § 304(a), 120 Stat. 235 (2006), adding new 18 U.S.C. § 2282A.

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navigational aid maintained by the Coast Guard, punishable by imprisonment of up to 20 years.57 Section 305 of the Act establishes a new federal offense making it unlawful to knowingly transport aboard any vessel in the United States, in waters subject to United States jurisdiction, on the high seas, or aboard a vessel of the United States, an explosive or incendiary device, biological agent, chemical weapon, or radioactive or nuclear material, knowing that any such item is intended to be used to commit a federal crime of terrorism. The crime is punishable by imprisonment for any term of years or for life and may be punishable by death if death results from commission of the act.58 Section 305 also establishes as a new crime the knowing and intentional transport of any terrorist aboard any vessel within the United States and on waters subject to the jurisdiction of the United States or any vessel outside the United States and on the high seas or having United States nationality. The crime is punishable for any term of years or for life.59 Section 308 of the Act increases from one year to five years the penalty for stowing away on a vessel if the offense is committed with the intent to inflict serious injury upon another or if serious injury to another results. If death results, punishment is by death or imprisonment for any term of years or for life).60 Section 309 of the Act makes it a federal crime to bribe any individual (private or public) with respect to various activities within any secure or restricted area or seaport with the intent to commit international or domestic terrorism.61 Offenders face imprisonment for not more than 15 years.62 State Response In the United States, each individual state has the ability to adopt its own maritime strategic policies, provided that they are not inconsistent with federal law. For example, on October 12, 2006 Governor Schwarzenegger created the California 57  Pub. L. No. 109-177, § 304(b), 120 Stat. 235 (2006), amending 18 U.S.C. § 2282B. 58  Pub. L. No. 109-177, §305(a), 120 Stat. 236 (2006), adding new 18 U.S.C. § 2283. 59  Pub. L. No. 109-177, §305(a), 120 Stat. 236 (2006), adding new 18 U.S.C. § 2284. 60  Pub. L. No. 109-177, §308, amending 18 U.S.C. § 2199. 61  18 US.C. 2331 defines both domestic and international terrorism to include acts dangerous to human life that are a violation of the criminal laws of the United States or of any state, and appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. 62  Pub. L. No. 109-177, §309, adding new 18 U.S.C. § 266.

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Maritime Security Council.63 Specific duties of the California Maritime Security Council include identifying potential maritime threats; improving maritime security measures, procedures, and communications; coordinating contingency planning and information sharing among the 11 California ports and various state and federal agencies; conducting training exercises; developing a statewide maritime security strategy; and preparing to quickly recover from a catastrophic event at a California port. The Council recently reported that the California Maritime Security Strategy is being prepared to accomplish three key outcomes: 1. Establish a state strategy to allow state, local, and private sector officials to prioritize the investment in resources and efforts to strengthen the security posture at California ports to prevent incidents and develop resilience in operations so they can quickly recover in the aftermath of disruptive events. 2. Coordinate the security strategies of California’s 11 commercial ports to develop baseline and escalating security measures and resources while also recognizing the uniqueness and special needs of each port. 3. Provide technical assistance to the ports in developing their own operational security strategy that meets the state and federal requirements, and is tailored to the unique nature of each port. Operational and tactical plans for security will remain with the individual ports in support of the overall state strategy.64 2007 Status Report The United States General Accounting Office recently reported to Congress as to the nation’s progress in implementing the various measures discussed above to protect the security of United States ports and marine transportation systems.65 Administration and Information Sharing As of August 2007, the Coast Guard has organized 46 Area Maritime Security Committees for various geographic areas around the country. Each Area Maritime Security Committee is comprised of experienced representatives from a variety 63  See Executive Order S-19-06 at http://gov.ca.gov/press-release/4423 (accessed January 10, 2008). 64 California Maritime Security Council, Report to the Governor and Legislature (November 1, 2007), available at http://www.homeland.ca.gov/pdf/CMSC_AnnualReport2007.pdf (accessed January 10, 2008). 65  U.S. General Accounting Office, Maritime Security: The SAFE Port Act: Status and Implementation One Year Later, pp. 43–6.

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of port interests. The Area Maritime Security Committees have each prepared an Area Maritime Transportation Security Plan for its port area in compliance with the Maritime Transportation Security Act of 2002. Each area plan coordinates with the national and other area plans, and must be updated every five years. The committees share information with each other, the Coast Guard and other agencies involved in maritime security operations. Information exchange has greatly improved.66 In addition, the Coast Guard has established 35 sector command centers across the country, four of which operate in partnership with the U.S. Navy. Additionally, the SAFE Port Act requires the establishment of interagency operational centers at all high-priority ports no later than three years after the Act’s enactment. The Coast Guard is currently working with multiple agencies to establish pilot interagency operational centers. Maritime Security Exercises The Maritime Transportation Security Act requires the Coast Guard and Area Maritime Security Committees to conduct or participate in exercises to test the effectiveness of Area Maritime Security Plans regularly, with no more than 18 months between exercises. In August 2005, the Coast Guard and the Transportation Security Administration established the Port Security Training Exercise Program (PortSTEP). Between August 2005 and October 2007, the Coast Guard expected to conduct PortSTEP exercises for 40 Area Maritime Security Committees. Additionally, the Coast Guard initiated its own Area Maritime Security Training and Exercise Program (AMStep) in October 2005. Both programs were designed to involve the entire port community in the implementation of the Area Maritime Security Plan. Between the two programs, all port areas have received a port security exercise each year since inception. The SAFE Port Act has added additional requirements for port exercises, which the Coast Guard is working to implement. Foreign Port Assessments As mandated by the Maritime Transportation Security Act, in April 2004 the Coast Guard developed its International Port Security Program to assess security measures at foreign ports. Under this program, the Coast Guard negotiates with the host nations a time and location to review the implementation of security measures in the host nations’ ports against established security standards, including the International Maritime Organization’s International Ship and Port Facility Security (ISPS) Code.67 The SAFE Port Act requires the Coast Guard to 66  See U.S. General Accounting Office, Maritime Security: Information-Sharing Efforts Are Improving (Report No. GAO-06-933T July 10, 2006). 67 The ISPS code requires facilities to conduct an assessment to identify threats and vulnerabilities and then develop security plans based on the assessment. Other nations also

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increase the pace of its visits to foreign ports, and to reassess the foreign ports once every three years. The Coast Guard intends to complete its assessment of foreign ports by March 2008, at which time it will begin reassessments. The Coast Guard has faced some resistance by several countries who believe that the frequency of the reassessments (once every two to three years) interfere with the host nation’s sovereignty. Port Facility Security Plans The Maritime Transportation Security Act required owners and operators of certain port facilities to assess their security vulnerabilities and to develop security plans to mitigate those vulnerabilities, which were required to be implemented by July 1, 2004. The Coast Guard adopted regulations governing the content of the plans, including items such as measures for access control, responses to security threats, and drills and exercises to train staff and test the plan.68 The SAFE Port Act has increased the required number of Coast Guard inspections of these facilities from once to twice each year, and requires that at least one annual inspection be unannounced. Transportation Worker Identification Cards The Transportation Security Administration, a division of the Department of Homeland Security, is responsible for the development and issuance of biometric transportation worker identification cards, or TWICS, to control access to secure port facilities. Before issuing a TWIC, the Transportation Security Administration must conduct background checks on transportation workers to ensure they do not impose a security risk. It is anticipated that more than 750,000 workers including longshoremen, truckers, port employees and others will be required to obtain a TWIC. The Transportation Security Administration encountered several difficulties and delays in implementing the TWIC program. It failed to meet its obligation under the SAFE Port Act to implement TWIC at the 10 highest-risk ports by July 1, 2007. Enrollment and issuance of TWICs began at the Port of Wilmington, Delaware on October 16, 2007 and will continue through calendar year 2008. To obtain a TWIC, an individual must provide biographic and biometric information such as fingerprints, sit for a digital photograph and successfully pass a security threat assessment. The Transportation Security Administration is currently planning a pilot to test TWIC access control technologies, such as biometric card readers, in the maritime environment as required by the SAFE Port Act.

have the right to make reciprocal visits to United States ports to assess their implementation of ISPS code requirements. 68 Requirements for security plans for facilities are found in 33 C.F.R. Part 105, Subpart D.

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CBP In-Bond Program To facilitate trade, the United States Customs and Border Protection implemented a system that allows imported cargo intended for either United States or foreign markets to move from one United States port to another without being assessed United States duties or quotas and without officially entering United States commerce. This cargo referred to as an in-bond shipment, and requires a responsible party to be covered by an approved bond and agree to comply with applicable regulations. Some port officials have estimated that in-bond shipments represent from 30 percent to 60 percent of goods received at their ports. The inbond system allows the trade community to avoid congestion and delays at United States ports whose infrastructure has not kept pace with the dramatic growth in trade volume. Because data regarding in-bond cargo is not put into the Automated Targeting System to analyze the cargo’s risk, in-bond goods are able to transit the United States without having the most accurate Automated Targeting System score. As required by the SAFE Port Act of 2006, United States Customs and Border Protection has prepared for review by several congressional committees regarding potential improvements to the in-bond system. The report includes an assessment, among other matters, of whether ports of arrival should require additional information for in-bond cargo, the feasibility of reducing transit time while traveling in-bond, and an evaluation of the criteria for targeting and examining in-bond cargo. Conclusion Over the past ten years, the United States has taken significant steps to protect its vitally important seaports and marine transportation system. Numerous factors make the development and implementation of a national maritime strategy complex, including the following factors excerpted from a report by the Public Policy Institute of California:69 Volume. An extremely large amount of goods flows through the maritime supply chain. In 2004, America’s ports handled almost 20 million ocean containers. Intermodality. Goods arrive at and depart from the port not only by ship but by rail and truck. Jurisdictional conflicts. Federal, state, and local governments all may have oversight over some portion of port activities. In addition, some ports are 69  John D. Haveman and Howard J. Shatz, eds, Protecting the Nation’s Seaports: Balancing Security and Cost (Public Policy Institute of California 2006), available at http:// www.ppic.org/content/pubs/report/R_606JHR.pdf (accessed January 10, 2008).

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Maritime Security in the South China Sea managed by local or regional port authorities, whereas others are managed by local or state governments or by private entities. Quantity of stakeholders. Carriers, shippers, logistics firms, producers, labor unions, and others all work at or use the ports and all must be involved in security efforts for these to be effective. Global nature of industry. Any serious security effort requires international cooperation from foreign governments, foreign port operators, and foreign ship owners. Time sensitivity. Production has moved to just-in-time processes, with manufacturers relying on steady shipments of inputs. Public and private involvement. Both sectors are likely to be interested in having the other carry the burden of financing or even planning security efforts.

The costs of implementing a comprehensive maritime strategy are significant. The Coast Guard estimated that implementation of the regulations enforcing the Maritime Transportation Security Act of 2002 would cost more than $7.3 billion in 2003 dollars at the lowest maritime security level one. The cost would increase significantly if a higher maritime security level were required.70 The United States must continue to make decisions regarding the allocation of its resources in protecting the vast and complex maritime transportation system. The United States cannot act in isolation to protect its maritime transportation system. Protection can only be achieved through the collective efforts of the international community. The United States’ National Strategy for Maritime Security recognizes the importance of global cooperation. The United States must continue to work together with its trading partners, the International Maritime Organization and other international organizations to suppress maritime terrorism. The comprehensive actions taken to date by the United States will require on-going assessment and revision to meet the challenge of protecting the vital international maritime transportation system.

70 Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 60,448 (Oct. 22, 2003).

Chapter 11

Commentary: Enhancing Sino–U.S. Maritime Cooperation for Regional Security BAO Hongjun and ZHU Huayou

The Status Quo of Regional Security in the South China Sea Area Regional and Global Implications The South China Sea (SCS), which is an open geographical unit politically and economically, is heavily relied upon by countries and regions around it since the sea is crucial for their development and even survival. Consequently, the maritime security of the SCS is connected not only to geographical factors but also to political, economic and social development in the area. ASEAN has formed a political and economic unit to pursue open regionalism and to promote the mutual development of its members. However, due to the great difference in political systems and economic levels among the ASEAN member countries, many challenges have been and will still be met in the process of regional integration. Because the SCS connects the Pacific Ocean with the Indian Ocean, it is of great geographical advantage and strategic interest. Furthermore, the SCS is of great significance to the social and economic development of the countries and regions in the area. The two factors mentioned above together endow the maritime security on the SCS with an obvious regional feature. In the process of regional integration and economic globalization, the maritime security of the SCS should accordingly be understood in the context of globalization. As a logistic channel commercially, the sea has become an important factor impacting on the global economy and a key area in the global sea route system. The economy in this area has also become very conspicuous with its dynamism and influence among the Asian and even the global economies. The changes of political and economic patterns in this area also reflect the adjustment of the international political and economic orders— international cooperation is resorted to by countries in this area for the maintenance of regional security; further, powers outside the area have strategic and real interests in the area and also try to get involved in regional issues. Interaction of Traditional and Non-traditional Security Issues Although there has been a weakening trend of traditional security threats since the end of the Cold War, traditional security threats will still be a very important

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part of national security together with changes and adjustment of the geopolitical and economic patterns. In particular, as we see, some military alliances outside the SCS area are strengthening instead of weakening, and seeking new partners as well; this, will have some effects on the development of traditional forces in the area. In the meantime, non-traditional security issues, piracy, maritime terrorism and maritime eco-security in particular, have become new challenges. The intertwinement of traditional and non-traditional security has brought us new understanding about the intervention of traditional security forces into the nontraditional security issues. A new trend has emerged. Co-existence of Positive and Negative Factors A consensus has been built up among interested countries and regions that the maritime security of the SCS plays a significant role in the regional and even the global economy. With the increase of economic, cultural and human resource exchanges between nation-states, more and more factors affect and even decide maritime security cooperation. Thus, a consensus of sharing interests and taking the responsibility of guaranteeing security should be built up as well. Of course there are still many factors that have a negative effect on maritime security and maritime security cooperation. At the macroscopic level, the lack of strategic mutual trust due to the problems inherited from history and the clashes of national interests may constitute one important factor. At the microscopic level, a significant factor may be the deficiency of money and technology, which limit the means available for guaranteeing maritime security. The Status Quo of Regional Security Cooperation in the South China Sea At present, maritime security cooperation in the South China Sea area mainly takes the form of cooperation on non-traditional security issues such as counterterrorism and counter-piracy. As there may be some strategic concerns deriving from traditional security behind the non-traditional security cooperation, regional crisis management is kept at a low level with limited effects. Bilateral and multilateral non-traditional security cooperation is increasing and being strengthened. The projected “ASEAN Security Community” is organized to combat terrorism and sea piracy. The ministers of defense of the “Five Power Defense Arrangements” have discussed new cooperation mechanisms to strengthen cooperation in providing humanitarian assistance and disaster relief. The “Five Power Defense Arrangements” supports Malaysia’s proposal of setting up a regional relief center in order to strengthen the coordination in disaster relief. The “Regional Co-operation Agreement on Combating Piracy and Armed Robbery against Ships in Asia” (ReCAAP) took effect in 2006 and an Information Sharing Center (ISC) was established in Singapore with the objective of facilitating the sharing of piracy-related information. The Philippines has decided to improve the

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nation’s ability to combat and counter any biological weapons attack made by terrorists. Non-traditional security cooperation among the ASEAN member countries is also promoted by countries outside the Southeast Asian region. The warning seismic sea wave apparatus developed by Indonesia, when combined with the tsunami warning systems developed by Germany and the U.S., can markedly shorten the time taken to warn of an approaching tsunami. The Philippine Government got help from the U.S for the raid against the Abu Sayyaf Camp and a mechanism of military cooperation, namely, “Security Engagement Board” (SEB), has been built as the complement to the existing military cooperation between the two countries. Malaysia signed the “Treaty on Mutual Legal Assistance in Criminal Matters” in 2006 with the U.S. to enhance the cooperation between the two countries to combat transnational crime, including international terrorism. On behalf of ASEAN, Malaysia and Canada signed a “Joint Declaration for Cooperation to Combat International Terrorism” in July 2006. Several trainings to enhance the capacity of enforcement personnel from the ASEAN member countries in dealing with various aspects of drug production and trafficking have been held in collaboration with Australia. Vietnam and Russia signed an agreement to strengthen cooperation on counter-terrorism. Besides, Japan and India also strengthened cooperation with ASEAN on counter-terrorism. Initial success has been achieved. According to the Piracy and Armed Robbery Against Ships Annual Reports compiled by the International Maritime Bureau (IMB), there has been a decrease in the number of reported incidents of piracy and armed robbery against ships. In 2006, a total of 239 incidents were reported all over the world, 88 of which happened in waters of SCS. Of these incidents, 50 were reported in Indonesian waters, dropping from 79 in 2005, 11 in the Malacca Straits and 10 in the Malaysian waters. The drop in the number of reported attacks shows that the attempts by the international community to combat piracy and armed robbery against ships have yielded good results. Multilateral and non-traditional security cooperation between China and Southeast Asian countries is becoming much more frequent. In August 2006, the “ASEAN–China Seminar on Maritime Law Enforcement Cooperation” was held in Dalian, Liaoning Province, China. The seminar was the first one co-hosted by the two sides, symbolizing a concrete step forward for cooperation on maritime law enforcement and enhancing the law enforcement cooperation in the field of non-traditional security issues. China respectively signed with Malaysia and Indonesia the “Memorandum of Understanding on Maritime Affairs Cooperation” and the “Memorandum of Understanding on Maritime Cooperation,” stepping up cooperation with the ASEAN member countries against money laundering and guaranteeing maritime security in the Malacca Straits. China, Singapore and Norway signed the “Memorandum of Understanding on Maritime Research Development, Education and Training” to further strengthen cooperation in maritime and shipping research among the three countries. China also joined the Regional Co-operation Agreement on Combating Piracy and Armed Robbery

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against ships in Asia (ReCAAP). During the Commemorative Summit Marking the 15th Anniversary of ASEAN–China Dialogue Relations in 2006, Chinese Premier Wen Jiabao and leaders of ASEAN members signed a joint statement to strengthen cooperation and information sharing in non-traditional security issues; to promote cooperation on criminal justice and law enforcement, including in anti-corruption efforts; to encourage exchange of defense/security officials; and to work together in ensuring maritime security in the region. In conclusion, cooperation over the maritime security of the SCS is part of regional security cooperation. The cooperation is constantly expanding and deepening; ways that the powers in and outside the region combine and cooperate also offer some new features. The security cooperation mechanism or crisishandling mechanism that covers the whole SCS, however, is still under formation and since the strategic interests and safety boundaries of the related powers overlap and sometimes collide with each other, the crisis management is still just some kind of “soft constraint.” Necessities for China and the United States to Enhance Maritime Security Cooperation in the Asia-Pacific Region Common Interests In recent years, China and ASEAN countries, based on their close geographical location, have established a reciprocal and mutually beneficial partnership for win–win cooperation in both political and economic areas. They are now moving to establish a China–ASEAN Free Trade Area so as to further boost cooperation in all respects in this region. As a major investment partner and export market, the United States serves as an important driving force for the rapid growth of the ASEAN economy. The United States is not only ASEAN’s top trade partner; much more significantly, it remains ASEAN’s most important security partner as well. It is of the strategic interests of both China and the United States to enhance maritime cooperation, as so to safeguard the economic prosperity, political stability, security and peace in the Asia-Pacific region.

  Wang Guanghou, “Analysis on the Anti-terrorism Cooperation between U.S. and ASEAN”, Southeast Asia Studies, 5 (2007), pp. 41–5 (in Chinese).   Zhai Kun, “The U.S. and ASEAN Relations,” Contemporary International Relations, 4 (2003), pp.51–2 (in Chinese).  Cao Yunhua, “The U.S.–ASEAN Relations after September 11,” Contemporary Asia-Pacific, 12 (2002) (in Chinese).

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Solution to Traditional and Non-traditional Security Issues Relying on Sino–U.S. Cooperation The political security situation in the Asia-Pacific region is now undergoing profound changes which are connected with economic globalization and Asia’s economic growth. Besides traditional security problems, non-traditional security issues—such as terrorism, proliferation of weapons of mass destruction, environmental pollution, marine routes safety—are increasing, and these all affect economic development and social progress in the region. To deal with such challenges, bilateral and multilateral security cooperation is increasingly active and cooperative mechanisms of various forms are taking shape. However, uncertainties still persist. The ultimate settlement and management of these issues can not be achieved without Sino–U.S. cooperation, especially Sino–U.S. maritime cooperation. China and the United States should cooperate on the basis of a mutual understanding of each other’s interests, as it is of great importance to maintain peace and stability in Asia-Pacific and Southeast Asia region. Practical Possibility for Sino–U.S. Maritime Cooperation in the Region Willingness of China and the United States Since the normalization of Sino–U.S. diplomatic relations, both countries are willing to enhance cooperation in security area. The U.S. realizes that China, as a major regional power, one of the five permanent members of the UN Security Council and a major nuclear power, plays an inevitable role in its security interests, both in the region and the globe. China strives to maintain a secure surrounding environment by means of security cooperation so as to ensure its peaceful development.  It is the common will of both countries to work together to eliminate conflicts arising from any misjudgment made by one side or the other. This creates the ground for the possible enlargement of the scopr of their cooperation.

 Cheng Xuefeng, “ASEAN Counter-Terrorism: Its Cooperation and Existing Problems after “September 11 Attacks,” Southeast Asia Studies, 3 (2003), pp. 23–32 (in Chinese).   Lu Guangsheng, “The Economic Relations between the U.S. and ASEAN: Development, Present and Importance,” Contemporary Asia-Pacific, 9 (2007), pp. 37–46.   Wei Hongxia, “The Bush Administration’s Policy towards ASEAN and Its implications for China,” Southeast Asia Studies, 4 (2006), pp.56–62.   Wei Hong, “Influence of American Factor on China–ASEAN Relations,” Southeast Asia Affairs, 1 (2006), pp. 10–15 (in Chinese).  Chen Yiping, “The Economic Integration between the U.S. and East Asia,” Jinan Academic Newspaper,3 (2007), pp. 3–7 (in Chinese).

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Confidence Building Along with the changing international strategic environment and increasingly active contact between the two nations, China and the U.S. have greatly enhanced mutual understanding. In recent years, U.S. elites have gradually reached a consensus on China. Mr. Robert B. Zoellick identified China as a “stakeholder” in 2005, which was repeated in documents of the State Department, the Pentagon and the White House. The Bush Administration followed a policy of engagement with China. The Armitage Report II in 2007 (The United States and Japan: Getting Asia Right Through 2020) presented a much more positive attitude towards China, in that it regarded China as a key factor in maintaining regional stability and emphasized the need of coordination and cooperation with China in Asian affairs. The Chinese Government also attaches great importance to Sino–U.S. relations, stressing to “enhance trust, reduce trouble, develop cooperation and avoid confrontation.” China is convinced that enhancing Sino–U.S. security cooperation and the sound development of Sino–U.S. relations will be instrumental in alleviating its security predicament and maintaining world peace. Existing Security Cooperation Mechanism The existing security cooperation mechanism serves as a frame or platform for maritime cooperation. Besides bilateral cooperation, both China and the United States are actively engaging in multilateral security cooperation. It is believed that the existing security cooperation mechanism provides an excellent platform for further security cooperation and maritime security cooperation. Sino-U.S. interactions in Asia-Pacific Economic Cooperation (APEC), ASEAN Regional Forum (ARF) and other mechanisms also give birth to some useful experiences and practices for cooperation, and thus enhance mutual understanding, trust, and the expansion of common benefits. Moreover, China and the U.S. have laid a good foundation for maritime cooperation. In 1998, the two countries signed the “Agreement on Establishing and Strengthening Maritime Military Security Consultation Mechanism” for intensifying maritime security consultation. The formation of the Sino–U.S. Maritime Security Consultation Mechanism, the Annual Defense Affairs Consultation Mechanism and the Sino–U.S. Joint Rehearsal of Maritime Search and Rescue help to increase mutual understanding and decrease security barriers. Since 9/11, China and the U.S. have strengthened the bilateral and regional cooperation in non-traditional security areas.10 The “Containers Security Proposal” signed by the two countries has also enhanced the maritime security cooperation   Liu Hongsong, “Hegemony’s Limited Participation in Multilateralism,” Foreign Affairs Review, 4 (2007) (in Chinese). 10 Tang Xiaosong, “Governance under Three Powers: the Choice for Regionalization in East Asia,” Contemporary International Relations, 2 (2008), pp.10–15 (in Chinese).

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and the prevention of weapons of mass destruction. The cooperation on nontraditional security areas has not only increased the mutual understanding between two countries but also laid a foundation for further synergy. In 2006, more progress was found in Sino–U.S. maritime cooperation.11 Table 11.1

Sino–U.S. Maritime Cooperation in Relevant Sea Areas in 2006

Time

Events

May

Joint Serial Maritime Defense Rehearsal for the first time Maritime Telecommunication Rehearsal Joint Maritime Search and Rescue Rehearsal Joint Maritime Search and Rescue Rehearsal

September September November

Participating countries China, U.S., Japan, Russia, Canada

Sea areas

China, U.S.

Hawaii Sea Area

China, U.S.

San Diego Sea Area

China, U.S.

South China Sea Area

Northeast Asia Sea Area

Suggestions on Strengthening Sino–U.S. Maritime Security Cooperation in the South China Sea Professional Dialogues Professional dialogues can be carried out three ways. Firstly, the two countries can exchange scholars for sharing research on issues such as regional security and maritime cooperation, on either a regular or an irregular basis. Secondly, workshops, training courses and conferences can be designed to accommodate connections between universities and research institutes and to enrich the channels of dialogue. Thirdly, the regular exchange of visits of scholars is likely to help expand the cooperative opportunities for Sino–U.S. regional maritime security. Broadening Topics of Dialogues Less-sensitive topics such as maritime search and rescue are feasible areas for Sino–U.S. cooperation. An example might be the threats to property and the loss of the lives of fishermen and passing vessels posed by bad weather and pirates. If a Sino–U.S. joint rescue mechanism on sea were created, lives and property vulnerable on sea would be safer, and trust between U.S. and China 11  Wei Hongxia and Chen Feng, “The U.S. and East Asia Relations,” The U.S. Studies, 1 (2006) (in Chinese).

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would be cemented, which is of significance for further cooperation on future maritime security issues. In addition, other non-sensitive subjects like maritime environmental protection and maritime climate study could also be discussed as areas for Sino–U.S. cooperation. Creating More Sino–U.S. Maritime Cooperation Mechanisms With greater Sino–U.S. cooperation in less-sensitive area including maritime search and rescue, the issue of systematic joint maritime cooperation could be discussed. For example, passing on information on maritime terrorism, maritime environmental protection, maritime search and rescue, and fighting against pirates will help build a solid foundation for closer ties and the safeguarding of regional security.

Part IV Environmental Security and Maritime Rescue

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Chapter 12

The Development of Oil Spill Preparedness and Response in China XU Shiming

Introduction The ocean, vast and mysterious, embodies the future of we human beings. Because of her abundant natural resources and advantages for shipping, the marine economy is booming. However, with the flourish of shipping industry, the exploitation of petroleum and natural gas at sea, the marine environment is facing challenges. China is a big coastal country and the marine economy plays a very important role in its gross domestic product (GDP). Therefore, the protection of the marine environment for sustainable development and utilization of marine resources is now a crucial topic for the Chinese Government. With the rapid development of our national economy, the demand for petroleum is greatly increasing, so is the transport of petroleum by sea. The development of petroleum shipping, on the one hand, has promoted the economy; on the other hand, it is posing the risk of serious pollution from ship-related incidents. Some major oil spill incidents, like those involving the Prestige in Spain, the MSC Ilona and the Arteaga in China, are remind us to well prepare against oil pollution in future. The Chinese Government has been attaching great importance to the protection of the marine environment and prevention of pollution from ships. China Maritime Safety Administration (China MSA in short), the competent authority under the Ministry of Transport responsible for the prevention and control of pollution from ships, enforces laws strictly and has been devoting itself to establishing an antipollution model with prevention, response and compensation as a trinity. In recent years, China MSA has done a lot in implementing international conventions, forming oil pollution response systems, and establishing compensation regimes, and has continued to make achievements ever since. Meanwhile, the establishment and perfection of oil pollution response system have always been our primary tasks. In the following sections an emphasis is placed on the description of emergency response work done in China.

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The Busier Transport of Oil in Coastal Waters, the More Risk of Pollution from Ships China is now the third largest oil consumption country in the world. In 2006, the cargo throughput of all ports in China reached 5.6 billion tons. The quantity of imported oil has been continuously on the rise since 1993 when China made itself an oil importer from an oil exporter. In 2006, nearly 431 million tons of oil was transported along the coast of China including 187 million tons of crude oil. At present, China ranks third only after the U.S. and Japan in respect of oil transported by sea and 90 percent of the imported oil is transported by ships. The year 2006 saw 4.64 million ship transits in the coastal waters of China, an average of 12,700 transits per day, while 162,949 transits were made by oil tankers of various types, an average of 446 transits per day. The risk of oil pollution from ships and particularly major serious pollution incidents is becoming higher with the increasing density of oil tanker numbers in port and coastal areas due to rapid increase of oil importing and the emergence of larger oil tankers at sea. Based on comprehensive research and assessment, we have identified the Bohai Gulf, the

Figure 12.1 High-risk Areas of Ship Pollution Accidents along Chinese Coastal Waters Source: China MSA, Research on Prevention and Response of Major Oil Pollution Accident, 2006

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estuary of the Changjiang River, the Straits of Taiwan and the estuary of the Pearl River as high-risk water areas prone to major serious oil pollution incidents caused by ships in the coastal waters of China. Ship-related Pollution Incidents in the Coastal Waters of China As statistics shows, in the last decade, more than 14,900 maritime traffic accidents occurred in the coastal waters and 3,107 vessels sank. From 1973 to 2006, 2,635 oil spill incidents occurred in the coastal waters, 69 of which were rated as serious incidents with an oil spill of over 50 tons each, meaning two incidents every year. The total quantity of spilled oil reached 37,544 tons and the average quantity of spilled oil is 537 tons in each incident. Table 12.1

Breakdown of Serious Oil Spill Incidents in China (1973–2006)

Classification Number of oil spill of oil incidents spills (in metric tons)

Percentage Quantity of over total spilled oil number (in metric tons)

50–99 9 13 100–499 43 62 500–999 10 15 1000 and more 7 10 In total 69 100 Source: China MSA, Annual Report, 2007

640 10263 7263 18911 37077

Average quantity of spilled oil in each incident (in metric tons) 71 239 726 2701 537

Percentage in respect of total quantity of spilled oil 1.7 27.7 19.6 51.0 100

Oil pollution from ships usually causes huge economic losses and great damage to the environment including oil cleaning expenses, fishery losses, tourism losses and environmental restoration. In the last decade, major oil spill incidents were seen almost every year in the coastal waters, which have caused a negative effect on the marine environment and ecological resources. Some major incidents are as follows: •

In 1983, M/T Oriental Ambassador of Panamanian registry ran aground in the water areas near Qingdao with 3,343 tons of crude oil spilled, badly contaminating the Jiaozhou Gulf and a 230-kilometer long coastline in the vicinity. Moreover, 1,000 Acres of the aquaculture area and over 900,000 square meters of tourist spots and seaside bathing places were affected. The city of Qingdao suffered an unprecedented and destructive damage

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•

•

to its aquaculture and tourism industries with an economic loss of tens of millions yuan. On March 24, 1999, M/T Bunker Supply 2 collided with East Sea 209 in the estuarial area of the Pearl River causing an oil spill of 589.7 tons. More than 300 square kilometers of sea areas and a 55-kilometer long coastline were polluted; 190,000 acres of aquafarm were badly contaminated and 70 hectares of precious plants—mangroves, an environmentally sensitive resource—were seriously damaged. The direct economic losses amounted to RMB 40,000,000 yuan. On April 22, 2006, M/V Hyundai Independence of British registry struck the dock at Yongyue Shipyard in Mazhi Anchorage, Zhoushan, while entering the dock and a crack in a portside shell plate led to an oil spill of 477 tons of fuel oil (heavy oil) from the third fuel tank. Immediately after the incident, the local maritime authorities initiated a quick clean-up action and recovered 407.75 tons of oily water. The nearby sea area was seriously polluted with an estimated economic loss of tens of millions of yuan.

Up to the present day, China has never experienced any major incident (a spill of over 10,000 tons of oil), but the risk of serious oil spills is very high. Besides these 69 serious incidents each of which involved spillages of over 50 tons of oil, from 1999 to 2006 there were seven other major oil pollution incidents which had the potential to cause serious damage in the coastal waters of China. For example, in 2001, a crack was found in the bottom plate of M/T Al Samidoon with a shipload of 260,000 tons of crude of oil when entering the Port of Qingdao; in 2002, M/T Erpus Asia, with 240,000 tons of crude oil, was in distress in the Straits of Taiwan due to main engine breakdown caused by a typhoon; the year 2004 saw a collision between M/T Sea Horn and M/T Horse Transporter in Meizhou Gulf, Fujian Province, each of which carried 120,000 tons of crude oil on board; in 2005, M/T Arteaga with 120,000 tons of crude oil ran aground after striking a rock near the port of Dalian. Although maritime safety administrations have successfully avoided serious pollution from the above-mentioned incidents by taking effective measures, it is obvious that the risk still exists. Seen from the above facts, the Chinese Government is now facing a very arduous task of preventing pollution from ships, protecting the marine environment and safeguarding marine ecological resources. Therefore, an emergency response to ship pollution has been on the top agenda of the Chinese Government. Competent Authorities in Charge of Pollution Prevention From Ships in China In a world where the transport of energy resources becomes the focus of attention, the protection of the marine environment and the prevention of pollution from vessels have become the most significant means to better serve the economic

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and social development and to build an environment-friendly and energy-saving society. China MSA, in accordance with national laws and regulations, exercises uniform supervision and control over vessels navigating in the sea areas under the jurisdiction of the People’s Republic of China including the internal waters, territorial seas, contiguous zones, exclusive economic zones and continental shelves, and over ship-related activities with respect to pollution prevention. Besides, China MSA represents the Chinese Government in implementing the international conventions concerning prevention and control of marine pollution from vessels in an effort to fulfill the objective of safer shipping and cleaner oceans set forth by the International Maritime Organization (IMO). There are 14 Maritime Safety Administrations under China MSA in coastal provinces: autonomous regions, municipalities directly under the central government, trans-provincial arterial river areas as well as some major port cities. As a major maritime nation, China always supports the initiatives of the IMO and has made every endeavor to enhance international cooperation. China has been elected as Category A Council Member of IMO for nine consecutive times. China has ratified or acceded to virtually all important conventions and protocols adopted by the IMO (such as SOLAS, and MARPOL73/78) and has faithfully discharged its obligations under these international instruments. Legislative, administrative and technical measures have been employed to upgrade the flag state control (FSC) and port state control (PSC) with a view to effectively safeguarding safe navigation and protecting the marine environment. Major Measures to Strengthen Safety Control and to Prevent Pollution From Ships To Accelerate Phasing-out of Single Hull Tankers We have strictly implemented the regulations prescribed by IMO in respect of phasing-out of single hull tankers, limited the import of aged vessels and single hull tankers, and made policies to speed up the phasing-out of domestic single hull tankers in an effort to optimize the structure of the Chinese merchant fleet. To Strengthen Port State Control and Flag State Control China Maritime Safety Administration has been placing importance on port state control and flag state control and has made great contributions to ensure maritime traffic safety in water areas under the jurisdiction of China and to prevent pollution from ships by taking measures to strengthen inspections and inspection quality in order to further improve the current situation of coastally trading ships and to combat substandard ships.

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Since 2003, 4,000 inspections have been made on foreign registered ships in exercising port state control but the number of ships found to be defective has increased by 67.29 percent and the number of detained ships increased by 95.38 percent. The number of inspections on Chinese ships navigating along the coast remains almost the same but the number of defective ships increased by 23.21 percent and the number of detained ships increased by 254.87 percent. To Promote Maritime Traffic Management Level for the Prevention of Accidents In recent years the China Maritime Safety Administration has invested more and effectively reduced the number of accidents by establishing 94 AIS shore stations covering the important water areas along the coast and 28 vessel traffic management systems and 86 radar stations in the coastal areas and along the Changjiang River. A ship’s routing scheme has been applied to Chengshantou, the Changjiang River in Jiangsu Province, the estuary of the Pearl River, the estuary of the Changjiang River and the Three Gorges reservoir. Moreover, ISM has been implemented and the national safety management rules, NSM for short, are being actively promoted, which has effectively enhanced the management level of shipping companies and ship crew. Information technology has been widely applied for the purpose of increasing efficiency. All foreign vessels are subject to compulsory pilotage. Large oil tankers and bulk chemical carriers entering and leaving a port are monitored and convoyed to ensure the safety of the port and its adjacent water areas. To Launch Special Inspection Campaigns The traffic safety environment has been improved by launching special inspection campaigns to tackle the problems affecting maritime traffic safety. By means of a campaign to clear out low-quality ships , more than 1,000 shipyards were asked to make corrections; 303 have been shut down; 291 have fulfilled the requirement and 406 are being under correction. Additional inspections were made on 8,055 ships in total and 297 ships found to have major defects were detained. During the 100day campaign on ships carrying dangerous goods, 2845 inspections were made on cargo containers and 120 cases involving the concealment of dangerous goods were investigated; besides, 2,156 wharfs handling liquid cargoes were examined and the qualification certificates of 32 wharfs were withdrawn. Furthermore, 24,105 small liquid tankers of small size were inspected, 235 of which were detained. To Strengthen Education of Seafarers At the same time, reinforcing the training of seafarers about pollution prevention and environmental protection has been held to improve seafarers’ awareness with respect to marine environmental protection.

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The Current Status of the Oil Spill Emergency System in China The Legal Basis China acceded to the OPRC Convention on March 30, 1998, upon the approval of the State Council and it became effective in China after three months. Authorized by the State Council in its Decree, the Ministry of Transport and other ministries were made responsible under the unified coordination and guidance of the State Environmental Protection Administrations for the implementation of the Convention with national laws and statutory regulations as the legal basis. The revised Marine Environmental Protection Law of China, effective on April 1, 2000, stipulates in Regulation 18 that China MSA is responsible for the formulation of the national contingency plan for serious marine pollution from ships and the plan has been presented to the State Environmental Protection Administration for record. The Formulation of Contingency Plans The Ministry of Transport began in 1999 to formulate the national contingency plan for oil spills from ships as well as other contingency plans used for the northern sea areas, East China Sea, South China Sea and the Straits of Taiwan. On March 31, a press conference was jointly held by the Ministry of Transport and the State Environmental Protection Administration to make public the national and sea area contingency plans which were promulgated by both ministries and became effective as of April 1, 2000. Gradually, a tiered oil-spill pollution response system came into being at national, provincial, municipal and port levels. In 2004, following the requirement of the State Council to formulate relevant emergency plans for imminent incidents, the Ministry of Transport conducted a major revision to the national contingency plan for oil spill from ships and produced the national contingency plan for pollution from ships in all water areas to prepare against HNS incidents as well as oil pollution. The Establishment of Model Project in Yantai In order to heighten the ability of combating oil pollution from ships, in 1994 the Ministry of Transport made a proposal to build a model project for oil spill control in the northern sea areas and in 1996 the project was officially on the agenda. It was also one of the 63 projects of top priority on the White Paper of Chinese 21st Agenda. The project is the basis for implementing the contingency plan for the northern sea areas of China, mainly consisting of an oil spill controlling and cleaning system, a surveillance and detection system, an information system, a communications system, and a training and demonstrating system. The objective is to track oil spills in the northern sea areas and to keep Chengshantou Channel, Laotieshan Channel

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and Changshan Channel under surveillance. The project will control and clean medium-scale oil pollution from ships. Experiences have been gained concerning the managing system of oil spill prevention and control as well as compensation regime for claims. The model project passed the acceptance check organized by the Ministry of Transport at the end of 2001. Since its foundation, the project has been successfully used for emergency responses to several major ship pollution incidents and for professional in-house training. Qinhuangdao Oil Spill Emergency Response Center In November, 2002, Qinhuangdao Oil Spill Emergency Response Center was founded. It is the first non-profit oil spill response unit jointly organized by the Ministry of Transport and the provincial government. Other Oil Spill Emergency Response Resources Under the auspices of local governments, major coastal and river harbors are equipped with a certain number of emergency response facilities while some nonstate-owned professional cleaning companies and oil spill emergency response units have been established. For example, the city of Shenzhen, without any national investment, has formed several self-financed professional pollution cleanup units through the efforts of local maritime safety administration. At present, major coastal ports have established resources capable of controlling and cleaning small-sized and medium-sized oil spills from ships in the harbor and near-shore water areas. Training and Drills Since 1980 when the first international training course on oil pollution response was initiated in Beijing by the Ministry of Transport, China MSA has organized, individually or through the cooperation with IMO or Singapore East Asia Emergency Response Company, ship pollution control and emergency response courses of various scales in major coastal ports of China on a yearly basis, including training courses designed for personnel from oil companies and has strengthened ties with relevant oil companies. Meanwhile, in order to have more professional staff, several tours to North America, Europe, Japan, Singapore were organized for the purpose of research and training. The maritime safety administrations under the Ministry of Transport have organized six large-scale oil spill response drills in the water areas of Shenzhen, Shanghai, Qingdao, Dalian and Hainan respectively, such as the maritime SAR and oil spill response drill in the Pearl River on June 5, 2000, and the joint search and rescue (SAR) exercises in Bohai Sea in 2006. As a result of all these programs, lots of emergency commanders and proficient cleanup personnel have been well trained, which in general has promoted the ability to combat oil spills.

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Through years of efforts, oil spill response resources have been built up and are capable of combating oil pollution on small and medium scales; they have also played an important role in several incidents which occurred in recent years. In 2004, for better dealing with major serious pollution incidents involving ships, the Ministry of Transport entrusted the Research Academy of Sciences and Shenzhen MSA with a research topic on the prevention and control of serious oil pollution incidents making a comprehensive study on pollution risks existing in the coastal areas of China. Now the Ministry of Transport is organizing a compilation of the supporting system of transport industry for the 11th national five-year plan, in which a development plan for pollution emergency resources is addressed to further promote the ability of combating pollution from ships on a national scale. With respect to the construction of resources, we believe that social resources are encouraged to make investments on stockpiles and clean-up units based on the principle of governments taking the lead with social resources participating and operating on the market basis. Establishing an Effective Organizing and Commanding System China MSA has established an effective organizing and commanding system, formed a capable law enforcement staff, prepared a quick oil spill response force, and equipped themselves with modern monitoring and controlling facilities. Cruising aircrafts are deployed to patrol over key sea areas and 678 standby boats from maritime safety administrations are also deployed in key sea areas and ports. If an oil spill incident occurs at sea, an alarm can be triggered through the multi-channel and all-weather distress alert system established by Maritime Safety Administrations at all levels. The on-scene pictures can be transmitted in real time through INMARSATF installed on maritime patrol vessels. The information on oil spill incidents can be communicated immediately to the local Maritime Safety Administration via telephone number 12395 which is specially used for maritime search and rescue. The remote sensing system on airplanes and satellites, the oil spectrum identification system as well as the oil spill containment and clean-up system are used to offer technical support for oil spill response. Liaoning MSA, Hebei MSA, Tianjin MSA and Shandong MSA have created a Response Cooperation Mechanism for Combating Pollution from Ships in Bohai Sea. Through this mechanism, they can share information, mobilize joint response resources and improve the efficiency and overall the capacity of oil spill response in this area. On receiving any report on oil spill incident, Maritime Safety Administrations will use the databank of sensitive resources to make a quick decision and begin to monitor floating oil, predict its trajectory and assess the damage accordingly. At the same time, the Environmental Protection Administration, the Oceanic Administration, the Meteorological Administration, the Public Security Bureau,

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the Medical Service and the Fire Fighting Service are also mobilized to ensure an efficient and quick response. After the initial assessment on the incident, local governments and other departments like the Environmental Protection Administration, the Oceanic and Fishery Administration and the Tourism Administration will be informed in due time in order for them to take action to protect the areas which would possibly be affected. Through constant monitoring by satellites, vessels, and airplanes and by using oil spill prediction model, the trajectory range and tendency of floating oil can be predicted quickly and accurately. Depending on the type of oil spilt, the response teams use facilities like booms to contain spilled oil to prevent its spreading and to protect sensitive areas. The oil on water surface and on shore is collected by using devices and equipment like oil spill recovery boats, skimmers and absorbent materials. Chemical dispersants is also used to remove the oil from water surface. In order to ensure immediate and accurate information releases in the case of an emergency at sea, spokespersons from the MSA at all levels have been well trained to deal with the press. To familiarize the public with the knowledge about prevention, alarming and self-protection in the case of an emergency and to improve their ability to cope with incidents at sea, Maritime Safety Administrations have complied and handed out propaganda materials on such matters. The Development of the Oil Pollution Compensation Regime in China The development of an oil pollution compensation regime is an important safeguard for effective response to pollution incidents and for protection of the rights of victims. According to the Marine Environmental Protection Law, the State Council of China is responsible for the stipulation of relevant regulations concerning compulsory insurance for oil pollution and the establishment of a compensation fund. The Ministry of Transport has listed this task as one of its priorities and the regulations on compulsory insurance have been included in the Statutory Regulations Governing Prevention and Control of Pollution From Ships at Sea which is now under revision. The statute, estimated to be promulgated in the year 2009, has been submitted to the State Council for consideration. Meanwhile, the draft method for collection and management of a fund for compensation for oil pollution damage by ships has been jointly completed by the Ministry of Transport and the Ministry of Finance, so does the phase for comments. The method is to be promulgated and will enter into force after its approval by the State Council. It is believed that with the establishment of compulsory insurance and compensation fund regimes for oil pollution, the rights of victims will be better protected and the current situation of “the cleaner pays” is to be fundamentally changed.

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Oil Spill Emergency Response in the South China Sea The South China Sea area, located to the south of the Tropic of Cancer, is considered richest in marine environmental resources, precious species and ecological families and also important for biological diversity, survival and development of mankind and navigation of ships. The island of Hainan, near the oil transport route connecting the Middle East and Northwest Asia, is now expanding its harbor areas and the construction of an oil refinery with an annual production of 8,000,000 tons of oil is underway in the economic development zone of the city of Yangpu, which came into service in 2006. Such a project had attracted hundreds of VLCCs into the ports of Hainan. It is estimated that in the near future the traffic density in this area will be heavier and heavier and accordingly the risk of oil pollution from ships will be higher and higher. But the emergency resources are comparatively dispersed and insufficient, which calls for an intensified regional cooperation to deal with oil spills. Since 2001, the maritime safety administrations in Guangdong and Shenzhen, Hong Kong Marine Department and Macao Port Authority have been urging the implementation of contingency plan for oil pollution from ships in Pearl River, and a memorandum of understanding regarding oil pollution emergency response was jointly signed by the relevant parties in 2008 . In 2003, China and ASEAN countries in the action plan for the implementation of strategic partnership between China and ASEAN countries towards peace and prosperity made a clear declaration: under the conference mechanism of Chinese and ASEAN countries’ ministers of communications or transportation, a consultation mechanism was to be established for cooperating over shipping and for close coordination on shipping affairs among relevant authorities in China and ASEAN countries. Projects for mutual benefits on maritime safety, SAR, prevention of pollution from ships, ship ballast water management, PSC and other activities in international shipping will be initiated. We will continuously promote regional cooperation by sticking to the action plans in order to prepare for serious pollution incidents involving ships. Future Prospects There are several plans in China which are related to the oil spill emergency response. The first is to improve contingency plans at all levels. Within the next few years all the plans on provincial and municipal levels will be formulated. Second, facilities for oil spill response will be developed. We will actively urge relevant authorities to establish oil spill emergency response centers in high-risk areas and at the same time to prepare stockpiles in major harbors. Thirdly, it is to establish a compensation fund for oil pollution damage. The International Oil Pollution Compensation Fund is only applicable to Hong Kong SAR, China. But the Chinese Government is planning to establish a domestic oil pollution compensation fund which will enhance oil response capability and will get victims compensated

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in a timely way. We consider environmental protection a fundamental national policy which concerns our economic growth as well as individual human beings. Bearing this in mind, we will continue to make efforts to establish and perfect the emergency response system for oil pollution from ships and the compensation regime with a view to making our contribution to the protection of the marine environment, a sacred cause we pursue. China MSA will further fulfill the responsibilities of protecting the marine environment and its obligation of implementing international conventions, reinforce its efforts in the prevention and control of pollution from ships and improve the ability of oil spill emergency response. By 2020, we will have established an allround, all-weather water safety administration system and been capable of dealing with 1,000 tons of spilled oil in a single incident.

Chapter 13

Regional Cooperation for Marine   Pollution Contingency Response in the South China Sea ZHANG Xiangjun

Introduction With economic developments in Southeast Asia, the South China Sea has been demonstrating its ever greater importance to all its riparian states, economically, geopolitically and environmentally. Nonetheless, the South China Sea is now one of the least protected sea areas among all the enclosed and semi-enclosed seas. Disputes over sovereignty and jurisdiction between its coastal states have impeded regional cooperation in combating pollution. On the request of the Coordinating Body on the Seas of East Asia (COBSEA), the United Nations Environment Program (UNEP) and the Global Environment Facility (GEF) launched a project, Reversing Environmental Degradation Trends in the South China Sea and Gulf of Thailand, in 2002. According to the research findings made by UNEP/GEF, the South China Sea has been suffering from land-based pollution, over-fishing, unreasonable offshore and coastal development, and is threatened by the present unsustainable exploration activities … One of the most bio-diversified areas is at risk of disappearing in the coming century. Of all the environmental threats, marine pollution is undoubtedly one of the primary; and among all the causes of marine pollution, grave accidental oil spillage is undoubtedly one of the most destructive forces. This has been proved by numerous accidents in history, such as Torrey Canyon, Erika, Prestige, and so on, which also indicates the necessity for all the coastal states, including China, to cooperate in protecting the marine environment. With research on practices in other regional seas and an examination of the situation in the South China Sea, the author proposes to establish a system of cooperation in combating pollution resulting from emergencies in this sea area. While establishing such a policy, China should recognize its indispensable role and push forward the proposal to establish the policy.   For a detailed description, see UNEP/GEF/SCS project document, November 2001, p. 4, available at http://www.iwlearn.net/iw-projects/unepscs (accessed December 30, 2008).

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In terms of environmental protection, all regional seas share a common characteristic, which relates to their limited capability to decontaminate. As for a definition for “regional seas”, there is no generally accepted one. The term “regional sea” used in the UNEP Regional Seas Program may shed light upon such an issue, which in practice has the same meaning as the terms “enclosed sea” and “semi-enclosed sea” used in the United Nations Convention on the Law of the Sea (UNCLOS). According to UNCLOS, enclosed and semi-enclosed sea means: a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

The clear geographical boundary of a regional sea, its limited capability to decontaminate and its vulnerability to grave oil spillage require cooperation among the states within the region to combat pollution. In UNCLOS, there are provisions on enclosed and semi-enclosed seas which set out obligations for states bordering an enclosed or semi-enclosed sea to cooperate. In fact, such provisions were inspired by the implementation of regional marine environment protection conventions prior to UNCLOS in 1982. The definite geographical boundaries of a regional sea naturally make it a manageable unit, which won’t be too small to count for little, or too large to be managed. Similar, more recent conventions may also justify a regional way to tackle marine environmental problems. Compared with the high seas, enclosed or semi-enclosed seas are more vulnerable to pollution accidents and more affected by the activities of bordering states, and thus they need a legal framework for marine environment protection different from the one set out by international conventions such as UNCLOS.   1982 UNCLOS Part IX, art. 122.   Such conventions include: Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil, 1969, available at http://fletcher.tufts.edu/multi/marine.html (accessed February 25, 2007); the Convention on the Protection of the Marine Environment of the Baltic Sea Area/the Helsinki Convention, 1974; the Convention for the Protection of the Mediterranean against Pollution,1976 (replaced by the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean,1995); Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, 1978; Abidjan Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region,1981; Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, 1982 (February). See http://www.unep.org/regionalseas/ (accessed December 30, 2007).   See D.M. Johnston and L.M. Enomoto, “Regional Approaches to the Protection and Preservation of the Marine Environment”, in D.M. Johnston ed., The Environmental Law of the Sea, Berlin: E. Schmidt, Berlin, 1981, p. 285.   See United Nations Open-ended Informal Consultative Process established by the General Assembly in its resolution 54/33 in order to facilitate the annual review by the Assembly of Developments in Ocean Affairs (Third Meeting, April 8–15, 2002), p. 64.

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Conventions like UNCLOS set out rules for marine activities and are internationally accepted, but they may not have enough considerations specifically for particular regions. Due to the definite geological boundaries and the similar historic backgrounds of adjacent states, their exploration activities and the environmental issues thus raised, regional cooperation will cater for the need of specific regions much better than cooperation under those internationally accepted conventions. When a regional policy is more attractive to states, they are more willing to ratify conventions governing regional issues and to fulfill their treaty obligations. Such an argument may find its support from the development of regional ways to protect the marine environment. In 1967, the Torrey Canyon accident shocked the international community and became a propelling force for the development of international law on environmental protection, in particular marine environmental protection, in the following two decades. Henceforth marine environment protection began to attract attention from the whole international community, which subsequently became one of the most remarkable subjects in international law. Due to the Torrey Canyon accident, states bordering the North Sea took the lead in regional cooperation to tackle emergent oil spills, which resulted in the conclusion of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil in 1969 (hereafter referred as the 1969 Bonn Agreement). It was and is still unique for it took only two months for states bordering the North Sea to conclude such an agreement and bring it into force. Internationally, the convening of the United Nations Conference on the Human Environment marked the commencement of the international community taking actions to protect environment. Based on the Action Plan for the Human Environment adopted at this conference, the United Nations Environment Program (UNEP) was launched to manage and coordinate environmental protection internationally. The UNEP handled environmental problems by a three-step approach, which was also known as a programmatic approach. As for marine environment protection, it was recognized by the Governing Council of UNEP as one of the priorities for actions. The Regional Seas Program (RSP) thus had its inception in 1974, and the regional approach taken by the North Sea countries undoubtedly played a part in it. The

  See A.O. Adede, “Lessons from Twenty Years of International Law-Making in the Field of the Environment, 1972–1992”, in A.C. Kiss and F. Burhenne-Guilmin, eds, A Law for the Environment: Essays in Honour of Wolfgang E. Burhenne, Bonn: IUCN Environmental Law Center, 1994, pp. 11–16.   See http://fletcher.tufts.edu/ multi/texts/BH834.txt (accessed February 25, 2007).  Report of the United Nations Conference on Human Environment, Stockholm, June 5–16, 1972. See http://www.unep.org/Documents.multilingual/Default.asp?DocumentID= 97&ArticleID= (accessed February 27, 2007).   See Essam, El-Hinnawi, UNEP: Two Decades of Achievement and Challenge, Nairobi: UNEP, 1992, p. 9.

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regional approach was also taken with regard to other regional seas, such as the Baltic, the Mediterranean being the most prominent of these. Since 1970s, many conventions on marine environment have been concluded, both internationally and regionally. For the 18 regional seas, there are now 14 regional conventions on marine environment and a number of relevant protocols addressing specific issues. The protocol on emergency spills, including oil and other hazardous and noxious substances, is the one attached to and enforced by most of the regional seas conventions. As one of the semi-enclosed seas, features of the South China Sea include busy waterways, dense sea routes, diversities between coastal states in terms of economic development and political systems, which expose this sea area to potential pollution crises, such as those caused by oil spills, and create difficulties in inter-state cooperation to combat pollution. Whatever discrepancies there might be between coastal states, once pollution accidents occur, there is no doubt that it is they which suffer and have to deal with the attendant problems. All regional seas are pertinent to the territory of littoral states. Tankers entering and leaving ports are thus frequent, which makes the sea routes, especially tanker routes, quite densely used. Furthermore, for considerations of safety and economy, most tankers choose sea routes near the land so that they may take advantages of the port facilities provided by coastal states and, in the case of an accident or emergency, are closer to sources of help. Correspondingly, there is a high possibility of oil spill accidents which may cause grave pollution. Most known serious oil spill accidents have occurred near coastal states, causing severe environmental damage because of the low speed of water body exchange with the high seas which is a feature of closed or semi-closed seas. Since the coastal states in such areas rely on navigation, fishing, amenities and other legitimate uses of the sea for their economies, the consequences of a severe spillage are more than just environmental.10 For these reasons, most of the states bordering regional seas take oil spillage as one of the primary environmental problems and have adopted protocols to deal with it. Besides, although there have been considerable technical improvements of shipping facilitation, such as the Traffic Separation Scheme and the doublehull tanker requirement to reduce the probability of oil spill accidents, what has been demonstrated is that such improvements are only be effective to control potential operational pollutions. As for the more disastrous accidental pollutions, such improvements hardly have any effects. According to the International Tanker Owners Pollution Federation Limited (ITOPF), accidents causing oil spillages 10 These accidents are: Exxon Valdez, Hawaiian Patriot, Torrey Canyon, Amoco Cadiz, Odyssey, Aegean Sea, Urquiola, Prestige, Jakob Maersk, Khark’s Atlantic Empress, Abt Summer, Castillo De Bellver, Katinap, Braer, Sea Empress, Haven, Independenta, Irenes Serenade, Sea Star. For the specific localities of such oil spills, see Figure 6 at http://www.itopf.com/information-services/data-and-statistics/statistics/ (accessed June 20, 2009).

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over 700 tons are usually not due to operational failures, as the following data show. According to the ITOPF, among the incidence of spills over 700 tonnes, groundings account for 34.2 percent, collisions for 28.4 percent, hull failures for 12.4 percent, fires and explosions for 8.6 percent, loading and discharging for 8.6 percent, unknown causes for 7.5 percent, and other operations for 0.3 percent.11 It seems to be a sad situation since such data may indicate that the more disastrous oil spill accidents are the less we can do to prevent them from taking place. On the other hand, it confirms the necessity to cooperate regionally or globally to mitigate the result of such accidents to as far as possible. The South China Sea is no stranger to oil spillages. Since 1975, the Malacca Straits have witnessed several oil spill accidents.12 More than half of the oil imported into China, Japan and Korea must be transported via this sea area,13 which spontaneously raises the risk of oil spillage. According to other regional seas schemes, regional cooperation to combat such pollution accidents is the preferable approach,14 which may highlight the way to resolve environmental problems in the South China Sea, especially on how to deal with emergent oil spill accidents. Compared with other regional seas, the South China Sea is now facing not only environmental challenges, but more complicated disputes over sovereignty and jurisdiction concerning islands and maritime zones. Due to such complicated situations, the coastal states are very cautious when dealing with issues relating to disputed areas. Thus, environmental protection in the South China Sea has been overlooked for decades compared to that in other regional seas. So far fortunately no serious oil spill has occured close to the shore, but how much longer can we rely on such good fortune? In addition to the danger of oil spillage, there are other environmental risks in the South China Sea. According to the regional profile of the East Asian Seas region: 11  See http://www.itopf.com/information-services/data-and-statistics /statistics/ (accessed June 20, 2009). 12 In 1975, the Japanese tanker Shawa Maru ran aground. See Peter Tillman, “Strait of Malacca and the Law of the Sea”, Austrl. L.J., 68 (1994), p. 891. See also Craig J. Capon, “Comment: The Threat of Oil Pollution in the Malacca Strait”, Pac. Rim L. & Pol’y, 7 (January 1998), pp.123–4. 13  Since 2004, oil imported by Japan from the Middle East has reached 0.6 ton per day, the total amount per year is about 0.24 billion tons, of which over 80 percent is from the Middle East; of that, 70 percent has to be via the Malacca Strait. See http://news.tom. com/2007-01-05/004H/ 26667701.html (accessed April 8, 2007). Since 1993, China has been an oil importer. Soon China will be the second oil consumer in the world. Over 70 percent of the imported oil has to be via this strait. See http://www.gmw.cn/03pindao/ lunwen/show.asp?id=4780 (accessed April 9, 2007). 14  See D.M. Johnston and L.M. Enomoto, supra note 4, 285. Also see Chung, SuhYong, “Is the Mediterranean Regional Cooperation Model Applicable to Northeast Asia?” Georgetown International Environmental Law Review, 1999, p. 364.

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Maritime Security in the South China Sea The threats to the region are just as varied, and include erosion and siltation from land development, logging and mining, blast fishing in coral reefs, cutting and conversion of mangroves, overfishing, unimpeded coastal development and disposal of untreated wastes.15

All these problems make it necessary for the South China Sea coastal states to cooperate over marine environmental protection. While many factors especially political wills affect disputes resolution, threats to the marine environment including those caused by major oil spill accidents will not consider political wills at all. Thus, the coastal states are obliged to cooperate in resolving the most urgent issues. Precedents in other regional seas indicate that the pollution caused by oil spill accidents is undoubtedly such an issue. Although it is necessary for the coastal states in the South China Sea to cooperate in combating pollution in case of emergency, disputes among these states, especially disputes over the Spratly Islands, have impeded such cooperation for years. The Spratly Islands are situated around rich gas and oil reserves and sea lanes of important transportation interests. While all the coastal states may make claims and realize them, the marine environment must be capable of accommodating the realization of all those interests. Once it is irretrievably polluted, all those claims will be meaningless. Such a viewpoint has been clearly expressed at the United Nations Conference on the Human Environment. In the preamble of the 1972 Stockholm Declaration, it is unambiguously stated that there existed a tension between human development and environment protection: In our time, man’s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment.16

Any reconciliation of such tension requires the international community and national governments to balance economic developments with environmental protection, although the balancing point is difficult to be located. We may search for such a balancing point through the development of marine environment protection under the auspices of UNEP/RSP for each regional sea. Because it caters for specific needs in specific regions, such a regional way has been proved to be effective and accepted by many regions. The practice in the North Sea indicated that when there was serious unbalance between economical and environmental interests, demonstrated by serious oil spill accident, bordering states would soon agree to take actions. In 1983, the 1969 Bonn Agreement was replaced by a new 15  Regional Profile, East Asian Seas Region, p. 3. 16  See http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97 &ArticleID=1503 (accessed December 23, 2008).

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agreement, the Agreement for Cooperation in Dealing With Pollution of the North Sea by Oil and Other Harmful Substances (hereafter referred as the 1983 Bonn Agreement), to cover accidents caused by hazardous and noxious substance. It took six years for the new agreement to be ratified and brought into force.17 In the North Sea protection scheme, there had been a number of marine protection conventions to deal with different specific issues in the first 20 years. In addition to the Bonn Agreement, there were the Oslo Convention for the Prevention of Pollution by Dumping from Ships and Aircraft for dumping at sea, and the Paris Convention for the Prevention of Marine Pollution from Landbased Sources for land-based pollution. And, later in 1990s, for the whole North East Atlantic region, there was a new convention on accidental pollution: the Agreement for Cooperation in Protecting the Shores and Coastal Waters of the North East Atlantic Ocean form Accidental Pollution by Oil and Other Harmful Substances/Lisbon Accord.18 Although in 1992, the Oslo Convention and the Paris Convention merged into the 1992 Oslo-Paris Convention,19 the updated 1983 Bonn Agreement is still a convention on accidental pollution. Such an approach is called a piecemeal approach, which means a specific convention is adopted for a specific issue. Theoretically, such an approach will be the most effective way for states bordering a regional sea to tackle marine environmental problems since it may take into account the specific requirements of specific aspects of marine environment, including land-based pollution, dumping at sea, accidental pollution and so on. Practically, such an approach will demand a high degree of economic development which could afford the high cost of environment protection, and a high concurrence of political willingness which can get different agreements accepted and enforced. The states which border the North Sea region and the wider North East Atlantic are all developed industrial countries with similar cultural and political values.20 The same level of economic development and close relationships with each other help them work willingly together to set out goals for marine environmental protection. This sense of identity to a great degree made it easier for states to cooperate on concluding and enforcing legally binding agreements and on carrying out nonlegally binding political commitments. Actually this approach may tackle marine environmental issues more specifically and more effectively, while it needs support from better political and economic capabilities to fulfill treaty obligations.

17  See http://fletcher.tufts.edu/ multi/texts/BH834.txt (accessed February 25, 2007). 18 This agreement has not been in force yet, available at http://www.itopf.com/ country_profiles/profiles/northeastatlantic.pdf (accessed March 29, 2007). 19  ILM, 32 (1993), p. 1069. 20  See Steinar Andresen, “The North Sea and Beyond: Lessons Learned”, in Mark J. Valencia, ed., Maritime Regime Building, The Hague: Kluwer Law International, 2001, p. 68.

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As for the Mediterranean region typically administrated by UNEP and known as the “cradle for Regional Seas Program”, things are totally different. In the Mediterranean, there is a great gap in economic development between European and African states. Due to the colonial period from the mid-nineteenth century to the twentieth century, African states have been influenced by the European states politically. Such discrepancies in economic development between South and North made the littoral states greatly divided in their respective capabilities to fulfill obligations under international conventions. To adjust to such a situation, a convention-protocol approach found its origin in the Mediterranean, which allows member states to find a most appropriate scheme for making commitments. Under this convention-protocol model, there should be a framework convention to set rules on decision-making procedures, information exchange and primary general obligations.21 Once the framework convention is concluded, more specific obligations are set down in respective protocols. Generally, a member state will have to commit itself to marine environment protection by signing and approving or acceding to the marine environment protection convention. There will be respective protocols for specific problems, such as land-based pollution, dumping at sea, offshore oil and gas exploration, specially protected areas, hazardous waste and emergent pollution. A member state will have to approve at least one protocol, and commit itself to approve other protocols when it is capable of doing so. Such a convention-protocol approach has been applied to other regional seas since it can bridge gaps between industrial and underdeveloped countries, especially gaps caused by different levels of economic development and capabilities to fulfill treaty obligations. With the support of the UNEP, almost all other regional seas under its auspices take this approach for marine environmental protection without doubting its applicability at all. Therefore, it is also known as the model and the best working example of regional cooperation agreements.22 According to Gavouneli, inheriting a model in this way without considering the context is not justifiable since the applicability of a certain approach is decided by the certain situations of a region.23 This convention-protocol approach is justified and applicable in the Mediterranean for it took into account the specific situations of the Mediterranean. Before the launching of the UNEP, France had initiated regional cooperation to protect the marine environment by using its political, economic and scientific 21  George W. Downs, Kyle W. Danish and Peter N. Barsoom, “The Transnational Model of International Regime Design: Triumph of Hope or Experience?” Colum. J. Transnat’l L., 2000, p. 470. 22  See Maria Gavouneli, “New Forms of Cooperation in the Mediterranean System of Environmental Protection”, in Myron H. Nordquist and John Norton Moore eds, The Stockholm Declaration and Law of the Marine Environment, Leiden/Boston: Martinus Nijhoff Publishers, 2003, p. 223. 23 Ibid.

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advantages in the region.24 The leading role France played in marine environment protection was critical to the subsequent Mediterranean Action Plan since there needs a dominant member in the region to realize goals for regional cooperation. France hoped to exert its political influence over the Mediterranean region and took the leading role in marine environmental protection. Actually environmental issues are related to both legal-political and economical factors. As the most important trade partner for other member states in this region in the 1970s, France undoubtedly took the leading role in economic development; technologically, France was capable of detecting marine pollution sites while other underdeveloped countries was not aware of marine pollution occurrences in their maritime zones;25 financially, France put a big sum of money into marine environmental protection. The French efforts continued until the UNEP began to take over the role France had played.26 To overcome the obstacles brought by different political interests, a general and comprehensive marine environmental protection convention is needed to highlight the ecological importance as a region instead of political boundary separating nation states. To overcome the obstacles brought by different economic development levels, a step-by-step procedure of treaty obligations fulfillment is needed. It is only in such a context that this convention-protocol approach will be effectively put into practice. Actually, the convention-protocol approach is not always applied, as in the case of the Baltic, where there were also states with different economic development levels and political interests. In the Baltic, there was a hostile confrontation between “Western” and “Eastern” countries in the 1970s. Due to this confrontation and the Cold War, the first attempt to launch the regional cooperation to combat oil spillage failed.27 This failure showed the coastal states the difficulties of cooperation in environmental protection when they pursued contradictory political interests. States bordering the Baltic finally chose to take marine environment protection as a priority issue, so that the common interests in environmental protection overtook the divergent political interests. With the awareness of marine protection permeating the whole international community, the states bordering the Baltic recognized that they had to find a way to protect the enclosed sea. Under the support from the Organization for Security and Cooperation in Europe28 and the Economic Commission for 24  Suh-Yong Chung, supra note 14, 364. 25  See, e.g., Israel Ministry of Foreign Affairs, “Chapter 1: Regional Environmental Management Frameworks”, http://israel.org/peace/projects/env96-1.html (accessed July 4, 2006). 26  See Peter M. Haas, “Epistemic Communities and the Dynamics of International Co-operation”, in Volker Rittbeger ed., Regime Theory and International Relations, Oxford: Oxford University Press, 1995, p. 193. 27 Hanns J. Buchholz, “The Baltic Sea: Lessons Learned”, in Valencia, Maritime Regime Building, supra note 20, pp. 21–2. 28 Ibid, p. 22.

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Europe Sub-committee to the United Nations Economic and Security Councils, the states bordering the Baltic finally started cooperating in 1974 and concluded the Convention on the Protection of the Marine Environment of the Baltic Sea Area/ the Helsinki Convention. The 1974 Helsinki Convention was designed to prevent and control land-based pollution, pollution from ships, and dumping at sea.29 Oil spills were regulated in the provisions concerning the prevention of pollution from ships. There was no specific agreement for any issue due to divergent political positions. All issues were dealt with by one package, which was the only possible way for member states to cooperate, since only thus would there be bargaining space for all those states. Agreements between the bordering states of other regional seas indicate that conflicts between political, economical and environmental interests do not necessarily impede cooperation in marine environmental protection, especially since the first United Nations Conference on the Human Environment held in 1972, when the whole international community was persuaded of the importance of environment and the need to protect the marine environment. As a result, the United Nations created its UNEP. Under the auspices of UNEP, Regional Seas Program was launched to protect regional seas and covered most enclosed and semi-enclosed seas. As for emergencies caused by accidental spillage of oil and other hazardous and noxious substance (HNS), the states bordering most regional seas have found their ways to combat such marine pollution. Generally speaking, there are three modes of cooperation including the Mediterranean conventionprotocol mode, the North East Atlantic piecemeal legislation mode, and the Baltic synthesis mode. Different modes in marine environment protection are due to the political and economical situations of the regions they were applied to, despite the consensus for regional cooperation to tackle marine environmental problems. Practice and lessons from these regions indicate that the establishment of a particular system for cooperation in combating pollution is decided by environmental interests, while a specific mode for such cooperation is decided by political and economical interests in that region. Cooperation on Marine Environmental Protection in the South China Sea In the South China Sea, cooperation in combating pollution is definitely necessary, just as has been demonstrated in other regions. What the coastal states adjacent to the South China Sea have to consider is how to cooperate. 29  As for fishing in this area, there was the 1973 Convention on Fishing and Conserving of the Living Resources in the Baltic Sea and the Belts, 1973 Gdansk Convention. See Jonas Ebbesson, “Protection of the Marine Environment of the Baltic Sea Area—The Impact of the Stockholm Declaration”, in Myron H. Nordquist and John Norton Moore, supra note 22, p. 155.

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Political and economical situations in the littoral states vary greatly, which make their cooperation on marine environment protection under the auspice of UNEP rely only on the member states’ goodwill.30 Political situations in the region are also quite complicated. The establishment of ASEAN was initially meant to countervail the expansion of communism to Southeast Asia. The confrontation between different political systems lasted from the 1970s to the 1990s. Economically, ASEAN includes developed Singapore, a number of developing countries, and underdeveloped Cambodia. Most of the states prefer economic development to environmental protection, that is to say, these states have not taken marine environmental protection seriously or attached due importance to it. Such a situation will only make it worse once a grave oil spill accident occurs. For cooperation to work, there must be some catalysts to push different states into concluding an agreement on taking necessary actions. In the case of the North Sea and the later North East Atlantic alliances, it was the occurrence of the Torrey Canyon accident. In the case of the Baltic, it was the support of the Organization for Security and Cooperation in Europe and the Economic Commission for Europe Sub-committee to the United Nations Economic and Security Councils and the awareness aroused by the 1972 Stockholm Declaration. In the case of the Mediterranean, it was the efforts from France and the UNEP. As for the South China Sea, the most preferable way is for one of the bordering states to push forward the cooperation with the help of UNEP as the East Asian Sea Region is one of the UNEP-administrated regions. Unfortunately no state would like to play such a role. The principal reason for this is the great discrepancies of political interests. Disputes over the Spratly Islands have not been appropriately resolved, not even appropriately arranged for disputes resolution to begin. Such tensions between states make coastal states very sensitive to commitments which may indicate their attitudes toward the disputed issue. Even in terms of marine environment protection, these states feel reluctant to make any compromise since it might be interpreted as a compromise over sovereignty or national jurisdiction. In other regional seas, there were and are also disputes over territory or maritime jurisdiction, while the specific historic background in Southeast Asia makes it more difficult for the coastal states to resolve disputes through international judiciary procedures. Actually, these disputes are in relation to conflicts of various interests. Furthermore, Japan and the United States are actively involved in the South China Sea affairs due to the geopolitical value of the Malacca Straits and thus make the political situations even more delicate and complicated. Such complicated political situations render a great impact on the establishment of a legal regime on marine environmental protection in the region. The most difficult is the conclusion of a legally binding convention. Under the auspices of the UNEP, there is an Action Plan for the whole East Asian Seas Region, of which the South China Sea is a sub-region, while concluding a convention has just been suspended for years. 30  Regional Profile, East Asian Seas Region, p. 3.

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With the disintegration of the USSR, political confrontation between the two political systems began cooling off in Asia. ASEAN has began to pay more attention to economical development and integration, and tension formerly existing between China and the ASEAN member states has also eased up. The twenty-first century also marked the new cooperation opportunity between China and ASEAN. In 2002, the conclusion of the Framework Agreement on Comprehensive Economic Cooperation between the People’s Republic of China and the Association of Southeast Asian Nations was a landmark which enhanced economic interdependence between China and ASEAN and promoted their economic integration. ASEAN and China is now the 4th biggest trade partner for each other.31 Based on the above analysis of political and economical situations and real practices in other regions, we may find comparability between the South China Sea and the Mediterranean. In terms of marine environment protection, the Mediterranean in the 1970s was quite like the South China Sea nowadays. Politically, there had been confrontation between European states and African states during the colonial period, which correspondingly made the African states depend on Europe economically. There was also political confrontation in Southeast Asia, due to discrepancies between communist states and capitalist states, which then brought out economic gaps between these states. Geopolitically, the Mediterranean connects Europe, Africa and Asia, which makes it one of the most important sea areas in the world and attracts attention from states outside the region, such as the United States. The South China Sea is part of the East Asian Seas under the UNEP, and thus connects the Pacific with the Indian Ocean, Europe with Asia, making it quite attractive to states such as the United States and Japan. Economically, the Mediterranean sustains tanker lines and pipe lines from south to north, east to west, due to the oil trade in the region. As for Asian states like China, Japan and Korea, over 70 percent of their oil is imported from the Middle East by sea, which has made the South China Sea critical to oil transportation. Environmentally, the Mediterranean underwent environmental degradation in the 1970s due to inappropriate management of activities affecting the marine environment and to the lack of a legal regime, which was just an example of “tragedy of commons.” When it was for everyone, there was no one for it. As for the South China Sea, its resources are claimed by all the surrounding states while marine environment protection just relies on the good will of those states, which may be interpreted as unreliable. The convention-protocol model from the Mediterranean practice and promoted by the UNEP is the preferable way for the South China Sea, even for the whole East Asian Sea Region, to approach marine environmental protection. When deciding what approach to be taken in the cooperation, we need to further consider whether 31  See http://zhs.mofcom.gov.cn/aarticle/Nocategory/200704/ 20070404538185. html, and http://zhs.mofcom.gov.cn/ aarticle/Nocategory/200702/20070204344141.html (accessed December 31, 2008).

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there exists a state with a leading role in the region. It is not difficult for the region to get help from the UNEP since it has always been responsible for administrating this region. As for a bordering state which can push forward cooperation, China should take the main responsibility to get cooperation operational in the near future. As a coastal state, the sea provides China with transportation advantages and rich natural resources. Since the “Reform and Opening-up” policy was carried out, coastal cities in China have benefited mostly and become the most prosperous region in China.32 With fast economic development, China faces challenges in maintaining the marine environment quality. Since the end of 1970s, the marine environment in China has been worsening continuously (see Table 13.1). As a result, the Chinese Government had to pay attention to marine environment protection from the middle of 1980s. Environment protection was included in the national plan—the sixth “Five-Year Plan” (1981–5). Since then, China has enacted laws and regulations on the marine environment, and carried out plans for environment protection in focal seas. Marine environmental protection has gone from controlling pollution levels to controlling seawater quality and improving the marine ecological environment.33 Legally, there is a set of laws for marine environment protection.34 Politically, China has changed its economic development policies and taken environmental protection into consideration. In the 11th “Five-Year Plan” (2006–10), reducing energy consumption per GDP has been stipulated.35 To international cooperation and capacity building and improvement, China has also attached great importance. At the second Conference of PEMSEA (Partnerships in Environmental Management for the Seas of East Asia) held in Haikou, China, it was formally proposed to work out plans in response to emergent spills of oil and chemical substances at sea. With such a start, China should push forward the realization of cooperation in combating pollution in cases of emergency.

32  By the end of the 2000, 11 coastal provinces and cities had produced 60 percent of the GDP in China. See http://www.coi.gov.cn/hygb/hyhj/20shjimo/huanji1.htm (accessed February 2, 2001). In the new century, coastal areas are still the better developed part in China when the middle and west part are also getting developed. 33  See http://www.soa.gov.cn/hygb/2004hjgb/4.htm (accessed December 4, 2006). 34  See Kuen-chen Fu and Binghe Shui (eds), China and the South China Sea Issues, Taipei: Wenjintang, 2007, pp.288–90. 35  See http://www.stats.gov.cn/ tjgb/ndtjgb/qgndtjgb/t20070228_402387821.htm (accessed May 11, 2007).

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Table 13.1

Marine Environment Quality Variations in China (1989–2006)

Year

Quality

Polluted areas Coastal seas

Major pollutants Areas seriously polluted Oil, organic Kiaochow Bay matter, nutrient (10% polluted) salt, heavy metal

Oil emission

1989

Not so good

1990

Mostly good

Coastal seas, estuary areas and bays

Nutrient salt, oil

66560 tons, decreasing by 6.3%

1991

Mostly good

Part of the coastal seas, estuary and ports

Ammonia, nitrogen, nitrite nitrogen. nitrate nitrogen and oil

1992

Mostly good

Estuaries, gulfs and inner bays

Inorganic phosphor, inorganic nitrogen and oil

1993

1994

Coastal seas

1995

Coastal seas deteriorated obviously

1996

Pollution worsening

1997

Equivalent to last year

Bo Hai and East China Sea severely polluted Coastal seas

Coastal seas, East China Sea mostly polluted

Inorganic phosphor, inorganic nitrogen, oil Inorganic phosphor, inorganic nitrogen Inorganic phosphor, inorganic nitrogen, oil Inorganic phosphor, inorganic nitrogen, oil Inorganic phosphor, inorganic nitrogen, oil (better than last year)

West part of Bo Hai bay and Pearl River estuary The Yangtse River estuary, Hangzhou Bay, Zhoushan archipelago, Pearl River estuary, Haikou Bay Yangtse River estuary, Hangzhou Bay, Haikou Bay, east and west coastal seas of Guangdong, Beibu Gulf

71051 tons, decreasing by 8%

68353 tons, increasing by 2.7%

65076 tons, decreasing by 4.8%

71399 tons, increasing by 9.7% Pearl River estuary, Dalian Bay, Kiaochouw Bay Coastal seas pertinent to metropolitans Pearl River estuary, Kiaochouw Bay Pearl River estuary

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Polluted severely

1999

Polluted severely

2000

Seawater quality of II and III levels mostly II and IV levels mostly

2001

Pollution in Bo Hai worsening, East China Sea severely polluted East China Sea mostly polluted Pollution in coastal areas of East China Sea worsening Part of the coastal seas severely polluted

2002

Percentage of levels I and II: 49.7%

Part of the coastal seas severely polluted

2003

Percentage of levels I and II: 50.2%

Generally improved

2004

Percentage of levels I and II: 49.6%

Part of the coastal seas worsening

2005

Percentage of levels I and II: 67.2%

2006

Mostly good

Part of the coastal seas severely polluted Part of the coastal seas

231

Inorganic phosphor, activated phosphate, heavy metal

Inorganic nitrogen, phosphate, oil, mercury and lead Activated phosphate, inorganic nitrogen, COD, oil and lead Inorganic nitrogen, activated phosphate, oil, COD, lead, cuprum, mercury, cadmium Inorganic nitrogen, activated phosphate, oil, COD, lead, dissolved oxygen, cuprum, mercury Inorganic nitrogen, activated phosphate, oil

Inorganic nitrogen, activated phosphate Inorganic nitrogen, activated phosphate, oil

No level I seawater in East China Sea, Bo Hai and East China Sea seemingly worsening Yangtse River estuary, Hangzhou Bay Liaotung bay, Bohai Bay, Yangtse River estuary, Hangzhou Bay, coastal seas close to Jiangsu, Pearl River estuary

Source: This table is based on statistics released by Ministry of Environmental Protection of the People Republic of China, see http://www.mep.gov.cn/plan/zkgb/ (accessed December 20, 2008)

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Suggestions on Building Convention-Protocol Cooperation in the South China Sea The nature of regional marine environmental protection suggests that regional cooperation will be the best available approach. For the coastal states to cooperate, the following priorities are to be taken into consideration. The Priority Issues in the South China Sea The South China Sea has been undergoing serious environmental degradations caused by land-based pollution, sea-based pollution, habitat loss, etc.36 Land-based Pollution The South China Sea is surrounded by quite a few large and rapidly growing cities, e.g. Guangzhou, Hong Kong in China, Ho Chi Minh City in Vietnam, Bangkok in Thailand, Manila in the Philippines, Jakarta in Indonesia, and Singapore.37 Waste water from those cities has been flowing into the sea without being appropriately treated due to lack of sewage treatment facilities. Additionally, pesticides are contributing to environmental degradation in this region.38 Sea-based Pollution Oil spills are not yet the critical issue in this region. According to the UNEP, the major causes of oil pollution are ships, oil and gas exploration and production platforms.39 Nonetheless, with the rapid growth of Asian economy, e.g. China, Japan and Korea, growth of oil demand will bring on growth of oil transportation via the sea, which will definitely increase the risk of oil spills. The UNEP has recognized the risk of oil spills in the region and raised this issue in particular in 2006 on the second East Asian Seas Congress held in Haikou, Hainan, China.40 Habitat Loss The main habitats in the South China Sea, coral reefs, mangroves and estuaries, are exposed to grave pollution and over-exploitation. Living

36  Supra note 30. 37  Supra note 30, p29. 38  For the “hotspots” or areas of most concern refer to: UNEP (1999) Strategic Action Program for the South China Sea. Draft Version 3, February 24, 1999 UNEP SCS/SAP Ver. 3, UNEP (2000) Overview on Land-based Pollutant Sources and Activities Affecting the Marine Environment in the East Asian Seas, Regional Seas Reports and Studies 173, available at http://www.gpa.unep.org/documents/technical/rseas_reports/173-eng.pdf (accessed Jan 18, 2009). 39  Supra note 30, p30. 40  For further information, see UNEP (1999) Strategic Action Program for the South China Sea, supra note 39.

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resources in this region are now decreasing due to their habitats being lost.41 Building a Framework Convention System The Mediterranean has illustrated that a framework convention is indispensable for all coastal states to cooperate. With the analysis made above on the South China Sea and cooperation in other regional seas, the author proposes that the future framework convention for the South China Sea, or even for the whole East Asian Seas region, should be composed of the following parts: 1. Consciousness of the indispensable economic, social and cultural values of the marine environment of the South China Sea and its living resources for the peoples of the region; recognizing pollution in the region; acknowledging that existing international conventions being not the best available approach for solving regional marine problems; and the affirmation of regional cooperation as the most appropriate way. 2. Ascertaining whether the convention applies to internal waters in all member states. 3. Defining key terms used in the convention, inter alia definitions of “pollution,” “incident” and “environment emergency.” 4. General obligations and principles: whether contracting parties may conclude bilateral or sub-regional agreements on marine environment when being consistent with the regional agreement. All contracting parties are obliged to collaboratively or unilaterally take all appropriate legislative, administrative or other relevant measures to prevent and abate pollution and to protect and enhance the marine environment. 5. Specific provisions including regulations on different sources of pollution, such as dumping from vessels and aircrafts, land-based pollution, cooperation on combating emergent pollution incidents; regulations on routine marine environmental protection, such as marine environmental monitoring, cooperation on scientific research and technology; regulations on pollution incidents, such as obligation, remedy and dispute resolution; regulations on procedural issues, such as secretariat, contracting parties conferences and financial arrangements; regulations on amendments, adaptation, implementation, access, withdrawal and depository.

41  For further information, see UNEP (2000) Overview on Land-based Pollutant Sources and Activities Affecting the Marine Environment in the East Asian Seas, Regional Seas Reports and Studies 173, available at http://www.gpa.unep.org/documents/technical/ rseas_reports/173-eng.pdf (accessed Jan 18, 2009).

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Protocol on Combating Pollution in Case of Emergency Cooperation on combating pollution in case of emergency will be one of the priority issues to be tackled. With reference to existing examples, cooperation on such an issue may be achieved by the following steps: 1. Ascertaining goals of cooperation on combating pollution in case of emergency are to prevent pollution from vessels and to deal with pollution incidents; affirming that the cooperation of all members is necessary to deal with such emergencies. 2. Setting out general principles for such cooperation in case of emergency, which are composed of precaution and polluters paying. 3. Defining key terms used in the protocol, such as “pollution incident,” “oil,” “hazardous and noxious substances,” “marine-related interests,” “relevant international instruments,” “protocol area,” which should be consistent with the convention. 4. General articles, such as obligations to cooperate when preventing, abating and controlling pollution incidents, and to cooperate when pollution incidents occur. 5. Specific provisions including regulations on members’ contingency plans; regulations on obligations for members when incidents occur; regulations on information exchange; regulations on emergent measures; regulations on reimbursement; regulations on port reception facilities and reception of ships in distress and places of refuge. 6. Procedural issues of the protocol, such as conferences, the relationship between the protocol and the frame convention, signing, approval, access and enforcement of the protocol. Conclusion For the South China Sea, and even the whole East Asian Seas Region, it is necessary to realize cooperation in combating marine pollution and to have an appropriate legal framework to enhance and strengthen such cooperation. The importance and indispensability of marine environment protection has been recognized by the international community since the end of 1960s. The need to cooperate in such protection has been stipulated in many international instruments. The effectiveness of a regional way to cooperate has been proved by the precedent of practices in many regional seas. Theoretically and practically, regional cooperation in combating pollution in the South China Sea will be the best way. Pollution in case of emergency by oil and HNS causes grave harm to the marine environment, which draws constant attention as the South China Sea is a critical sea route for oil tanker transportation.

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Based on the analysis made above, it is proposed that the Mediterranean convention-protocol approach to establish a legal framework for the region be followed, as these two regions have many comparables. For the forming of such a legal framework, the UNEP will be of adequate help as an external pushing force, while a bordering state shall play an internal pushing force role. China has always greatly relied on the resources and transportation advantages provided by the South China Sea. With such great interests, China should consider playing the role as an internal propellant since the maintenance of any such interests must have a favorable marine environment. The adjustments within the Chinese economic structure and economic developing pattern, the reform of the Chinese marine environmental protection regime and the rapid development of its response capability make China capable of pushing the establishment of emergency regime in this region. Nonetheless, to avoid deepening different political interests in this region, it is preferable for China to “push” rather than to “lead” in the regime establishing course. Although there are difficulties and obstacles in this region to realizing cooperation under an appropriate legal framework, it is not impossible. With the economical interdependence and integration between ASEAN and China, it will be more and more favorable for the bordering states to cooperate with each other. Since the whole international community is aware of the indispensability of marine environment to human survival, the states bordering the South China Sea are also compelled to tackle this issue. “Put aside controversy and protect jointly” will be the best choice through which all the bordering states may realize their respective interests, economically, politically and environmentally.

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Chapter 14

International Submarine Rescue: A Constructive Role for China Lyle J. Goldstein and William S. Murray

China is emerging as a significant maritime power. Its shipbuilding sector is extremely dynamic. Beijing is also investing heavily in oceanographic research and ocean resource exploitation. Sovereignty concerns along China’s maritime periphery combine with these maritime commercial tendencies to create the impetus for an ambitious program of naval modernization. At the center of China’s naval modernization is the submarine force, which in 2006 is building four classes of submarines simultaneously, while acquiring a significant number of submarines from abroad. This rapid naval modernization, with its obvious emphasis on undersea warfare, has aroused the suspicions of regional states as well as those of the traditional East Asian maritime powers, including the United States. Underlining the imperative for greater cooperation between the U.S. and Chinese navies, in October 2006 a Chinese submarine operated in close proximity to the U.S. Navy’s Kitty Hawk battle group. Commenting on this incident, Admiral William Fallon, then Commander of U.S. Pacific Command, underlined the possible risks of such unscripted encounters between warships observing, “ [I]f this Chinese sub came in the middle of [an ASW exercise], then it could have escalated …” To envision an alternative future of cooperative security and not rivalry, it is worthwhile to consider how cooperation in submarine rescue could help to spur a larger vision in which U.S. and Chinese fleets cooperate together within a global “thousand ship navy,” to protect the shared interest in a global commons.

 The opinions expressed in this chapter are those of the authors, and do not necessarily reflect the official positions of the United States Government or United States Navy. This chapter draws extensively from research that was first published in Asia Policy, 5 (January 2008), pp. 167–83.  Audra Ang, “U.S. Admiral Says China Submarine Incident Not Dangerous,” San Diego Tribune, November 17, 2006.  On the “‘Thousand Ship Navy’” concept, see John Morgan Jr. and Charles Martoglio, “Global Maritime Network,” USNI Proceedings, November 30, 2005 on the website Military.com at http://www.military.com/forums/0,15240,81652,00.html (accessed November 13, 2006).

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Traditionally a continental power, China’s emergence as a maritime power necessarily raises profound questions for the stability and security of the AsiaPacific region. Most particularly, can the United States, the most dominant Pacific power, find a modus vivendi with a rising China given Beijing’s evident maritime aspirations? The potential for extended naval rivalry is obvious, but to avoid this dangerous future an agenda for positive maritime cooperation must be developed. The small-scale, but historically significant, bilateral search and rescue exercises conducted by Chinese and U.S. ships in late 2006 should form the beginning of an expanded naval cooperation agenda. This chapter explores how increased cooperation in submarine rescue is one potential avenue for expanded maritime cooperation between the established and the emergent naval power in the AsiaPacific region. While the promise of such cooperative initiatives should not be exaggerated and cannot be expected to alter potentially conflicting national interests, such mechanisms may facilitate greater trust and transparency, in addition to having an impact on the “world-view” of decision-makers in sensitive national security positions. Among many Asia-Pacific maritime cooperation initiatives including, for example, multilateral oceanographic research, fisheries management, and coast guard cooperation, submarine rescue may be regarded as particularly sensitive. After all, the details of submarine operations and capabilities comprise some of the most closely held secrets of nations that operate such warships. Nevertheless, the value of international cooperation in submarine rescue is a concrete and incontestable fact that can be measured in lives saved—as the August 2005 rescue of the Russian submersible AS-28 Priz by a team from the UK’s Royal Navy vividly demonstrated. Meanwhile, the increased domestic and international attention given to China’s submarine fleet and its accidents, suggest that submarine rescue capabilities will become much more important to the People’s Republic of China (PRC). The tragic loss of an entire Chinese submarine crew in 2003 powerfully underlines this imperative. Cooperation among submarine forces in the Pacific may be more challenging than other aspects of regional naval and maritime cooperation, but the consequences for mutual confidence could be much more profound as elite (and hence influential) military organizations are drawn into cooperative activities. A considerable consensus in Washington has now seemingly coalesced around former Deputy Secretary of State Robert Zoellick’s articulation of the “stakeholder” concept for U.S.–China relations. The naval component should not be neglected in this effort to encourage Beijing to exercise   See, for example, Benjamin Self and Yuki Tatsumi, eds, “Confidence-Building Measures and Security Issues in Northeast Asia,” Report no. 33, Washington DC: Henry L. Stimson Center, 2000. “Confidence building measures or confidence and security building measures are actions taken to reduce fear of attack by both (or more) parties in a situation of tension …” and typically involve both information exchange and people-to-people contacts. From Wikipedia at http://en.wikipedia.org/wiki/Confidence_and_SecurityBuilding_Measures (accessed November 13, 2006).

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its new power in order to “sustain, adapt, and advance the peaceful international system that has enabled its own success.” This analysis is comprised of three sections. The first examines China’s record of submarine accidents, focusing on the most recent tragedy of Ming 361. A second section places China’s record in a larger context, illustrating that all submarine powers have inevitably suffered disastrous accidents. This section also discusses in some detail two recent disasters, the loss of Kursk and the rescue of AS-28 Priz, which have together created strong momentum behind submarine rescue initiatives. The third section surveys the multinational, institutional basis for submarine rescue, while the conclusion presents policy recommendations. China’s Experience with Submarine Accidents China has suffered a great many submarine accidents. Perhaps the most notorious of Beijing’s underwater mishaps is the loss of the Ming-class submarine 361, in which the entire crew of 70 officers and sailors perished in late April 2003 while operating in relatively shallow water near the entrance to the Bohai Gulf. Some reports suggest that local fishermen found the vessel floating in a semi-submerged condition with its air induction mast and periscope raised above the surface of the water and that the entire crew perished so quickly that “the positions of all 70 officers and sailors were ‘very peaceful.’ Some were lying in bed. Some were at work positions. There was no single trace of [struggle].” The exact cause of the disaster is not known outside of the Chinese Navy, however, it was publicly declared to be the result of a “mechanical problem” that occurred during “valve testing.”10 A logical explanation that fits with the majority of reported features of the accident is that the ship operated its diesel engines without opening the air induction valve. With no air entering the ship, the ship’s

  “Deputy Secretary of State Zoellick Statement on Conclusion of Second U.S.-China Senior Dialogue,” December 8, 2005, on the website of the Embassy of the United States at Beijing, China, at http://beijing.usembassy-china.org.cn/120905p.html (accessed June 26, 2009).   Wang Chine-min, “Story Behind the Truth of Submarine No. 361”, Yazhou Zhoukan, May 12, 2003, FBIS Doc. No. CPP20030513000070.  Nanfang Wang, “Mystery Surrounding No. 361 Submarine Accident Remains Unsolved, Outdated Equipment Become Potential Danger for National Defense”, Jianghuai Chenbao, May 6, 2003, FBIS Doc. No. CPP20030506000139.   Wang Jianmin, “Military Family Revealed Inside Secret,” Yazhou Zhoukan, May 26, 2003, pp. 48–49l. FBIS Doc. No. CPP20030619000201.  Ibid. 10  “CMC Chairman Jiang Zemin Denounces PLA Navy for Errors Behind Submarine Accident”, Kuang Chiao Ching, August 15, 2003, p. 15, FBIS Doc. No. CPP20030815000047.

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atmosphere became rapidly depleted of oxygen (since the ship is quite small and the engines have a voracious appetite) and the crew suffocated. The loss of the Ming 361 resulted in an unprecedented political–military dynamic within the Chinese leadership. It is noteworthy how quickly this event became public, perhaps owing to the difficulty of containing information in an age of the internet and increasing globalization, 11 as well as the public relations disaster that had befallen the Russian government during the Kursk tragedy just a couple of years prior. Shortly after the accident, Central Military Commission (CMC) Chairman Jiang Zemin and Vice Chairman Hu Jintao were shown on television inside the recovered submarine. Those in the military chain of command deemed ultimately responsible, including the People’s Liberation Army (Navy) (PLAN) Commander and Political Commissar, and the North Sea Fleet (NSF) Commander and NSF Political Commissar, were publicly dismissed.12 The message, it would appear, was that PLAN Commanders will be held personally accountable for preventable accidents. This is a hallmark of an increasingly professional organization. The Ming 361 incident left no opportunity for rescue. But this has not been the only accident that China has suffered. Like other submarine powers, China has a long history of submarine accidents. There is a report of the loss of a large group of skipper trainees when a Romeo-class submarine sank in 1993.13 Another possible loss of a Ming, with all hands, is said to have occurred in the Yellow Sea in the 1980s, allegedly after the submerged submarine collided with a merchant ship.14 Rumors exist of another accident, killing 10 in the 1980s, and of an even more serious incident in the 1960s in which there was only one survivor.15 At some point, the Chinese may have even lost an additional Ming to a fire.16 There is likewise speculation regarding a second Xia-class ballistic missile submarine that might have been “lost in a fire before it went to sea.”17 Beijing continues to operate a large fleet of submarines, nearly half of which are relatively obsolete, in the relatively shallow waters around the South Sea, East 11 A similar phenomenon appears to have been at work when it was revealed rather quickly that China had lost one of its experimental early warning aircraft (KJ-200) in an air crash in June 2006. 12  “Enforce Strict Discipline to Avoid Repeat of Tragedy,” Ta Kung Pao, June 16, 2003, FBIS Doc. No. CPP20030616000032. 13  Joseph S. Bermudez Jr., Lyle J. Goldstein and William S. Murray, “China and Northeast Asia, Navy,” Jane’s Sentinel Security Assessment, November 19, 2002, www. janes.com (accessed November 13, 2006). 14  Wang Chine-min, “Story Behind the Truth of Submarine No. 361.” 15  Ma Ling and, Li Ming, “Why Did China Make Public the Submarine Accident?” Ming Pao, May 9, 2003, FBIS Doc. No. CPP20030509000043 16  “Ming Type 035” on the website of the Federation of American Scientists at http:// www.fas.org/man/dod-101/sys/ship/row/plan/ming.htm (accessed November 13, 2006). 17  Bernard Cole, The Great Wall at Sea: China’s Navy Enters the 21st Century, Annapolis, M.D.: Naval Institute Press, 2001, p. 196, n. 46.

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Sea and North Sea Fleet submarine bases. These waters are becoming increasingly crowded with merchant shipping as China’s export economy expands. This confluence of ever-growing merchant ship activity combined with the continued obsolescence of some proportion of the PLAN submarine force, together with often young and inexperienced crews, practically guarantees further accidents. Indeed, the Japanese newspaper Yomiuri Shimbun recently reported that another Ming-class submarine suffered a fire at sea in May 2005 and had to be towed back to its South Sea Fleet port.18 A PLA Navy corvette was severely damaged in a collision with a large merchant ship in late June 2006. Thirteen Chinese officers and men were reported missing as a result of this accident.19 Submarines operating in these intensely congested waters face the same risk of collision and sinking, especially while operating on the surface. China might be able to execute an effective submarine rescue by drawing solely on indigenous naval assets. In fact, one source suggests that successful escapes from stricken submarines by PLA Navy sailors were made through the torpedo tubes during incidents in 1959 and in 1987.20 China continues to train its submariners in that method of escape, but also has some additional submarine rescue capabilities. The PLAN operates Dajiang, Hudong, and Kancha-class support vessels, all of which have some ability to facilitate submarine rescue operations. The Chinese Navy does have two deep submergence rescue vehicles (DSRVs). The PLA Navy DSRV was first tested in 1986 and is capable of conducting “wet rescue” at depths up to 200 meters. Deployed from the above salvage vessels and with a capacity to carry six survivors, these rescue vessels are equipped with underwater cameras, high-frequency active sonar, and a manipulator arm.21 PLA Navy submarine rescue exercises are becoming more common to be sure, but according to Chinese sources, the first major submarine rescue exercise only occurred in 2004.22 In September 2006, the PLA Navy successfully conducted a joint exercise employing 18  See Qiu Yongzheng, “US, Japan, Taiwan Work Together to Forge Antisubmarine Chain”, Qingnian Cankao, June 9, 2005, FBIS Doc. No. CPP20050609000045. This article disputes the Yomiuri Shimbun’s account, and relays a PRC Foreign Ministry explanation that the submarine was instead engaged in “emergency rescue training.” 19  “Hong Kong Ship Rams Into Missile-Carrying Vessel, Leaving 13 People Missing”, Tung Fang Jih Pao, June 26, 2006, FBIS Doc. No. CPP20060627710002. 20  From the website of the International Submarine Escape and Rescue Liaison Office (ISMERLO) at http://www.ismerlo.org/assets/prc.htm (accessed November 13, 2006). 21  Stephen Saunders, ed., Jane’s Fighting Ships, 2005–2006, London: Jane’s, 2005, p. 149. The Chinese Navy’s first deep diving manned submersible was Osprey-1, which was completed by Institute 705 in 1969. This submersible, however, was not created for submarine rescue but rather primarily for salvage tasks associated with torpedo development. For an extensive discussion of this system, see Zheng Chu, “A Deep Water Torpedo Salvage Vessel Goes to Sea”, Naval and Merchant Ships (October 2006), pp. 10–13 (in Chinese). 22  “The Chinese Navy Conducts a Large-Scale Submarine Rescue Exercise for the First Time,” Zhongguo Xinwen, June 1, 2004, FBIS document no. CPP20050601000107. Another recent report on Chinese submarine rescue exercises is Li Gengcheng and Li

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a diving bell for submarine rescue. The People’s Liberation Army Daily report on this exercise, which was conducted by the North Sea Fleet, suggests that the exercise demonstrates that China is aiming to reach international standards in this arena.23 China’s evident lack of significant experience in this aspect of naval development suggests that Beijing could benefit from studying foreign submarine accidents, and more importantly in interacting with foreign navies that have much more experience with submarine rescue. Submarine Accidents and Factors Influencing Rescue Although China is the most recent country to lose a submarine crew due to a peacetime accident, all of the other permanent members of the United Nations Security Council have suffered similarly fatal submarine disasters. Russia has the sad distinction of experiencing the most. The United Kingdom lost four diesel-powered submarines during the Cold War. France lost two Daphne-class diesel submarines, both with all hands. The United States suffered two submarine losses in the 1960s, with the USS Thresher, a nuclear-powered attack submarine, sinking during sea trials in the Gulf of Maine in1963, and the USS Scorpion, which was lost near the Azores in 1967, most probably due to an internal explosion. Altogether, since 1945 at least 12 countries have lost submarines and their crews due to accidental causes in peacetime.24 Potentially catastrophic submarine accidents are more common than is usually realized. The Canadian submarine HMCS Windsor, for example, recently suffered a small electrical fire.25 This would never have been reported in the newspapers had not the HMCS Chicoutimi suffered a fire and the death of a crew member only

Bingzheng, “South Sea Fleet Successfully Organizes Submarine Rescue Drill,” Jiefang Junbao, July 28, 2005, FBIS document no. CPP20050826000230. 23  Zhang Jian, “Navy Lifesaving Bell Successfully Rescues Submarine for the First Time”, People’s Liberation Army Daily, 21, p. 12 (in Chinese). See also “PLA Navy North China Sea Fleet Organizes Underwater Submarine Rescue Training Exercise Involving Warships, Helicopters, Divers in Yellow Sea Area,” Jiefang Junbao, September 21, 2006, FBIS document no. CPP20060921711001. Another article suggests that rescue bells were developed for the Chinese Navy in the 1980s and first successfully tests in 1989. See Wang Longqi, “A Insider Account of Submarine Crew Undersea Escape”, Modern Navy (November 2004), pp. 44–5 (in Chinese). 24  Smaller countries have also suffered submarine accidents and losses. Peru lost the Pacocha in 1988, and Israel the Dakar in 1968. Turkey lost the Dumlupinar in 1953 and Spain the C4 in 1946. Edwyn Gray, Disasters of the Deep, Annapolis, M.D.: United States Naval Institute Press, 2003, pp. 282–9. 25  Kelly Toughill, “Blaze Eamages Navy’s Last Working Submarine,” The Toronto Star, November 1, 2005.

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13 months earlier.26 Other accidents, however, avoid becoming major disasters by the narrowest of margins. USS Dolphin, formerly the U.S. Navy’s only diesel submarine, suffered major flooding in May 2002 and was almost lost. More widely known was the collision in 2001 between USS Greeneville and a fishing school vessel in which nine Japanese students were killed. In January 2005, when the USS San Francisco struck an undersea mountain while operating submerged at high speed several hundred miles south of Guam, there was one fatality.27 An example of a relatively minor submarine accident that had the potential to be a major disaster occurred in September 2005 when the USS Philadelphia was struck by a Turkish freighter while the submarine was operating on the surface as it entered Bahrain. The nature of the damage, though relatively minor, suggests the submarine could just as easily have been sunk.28 One has to conclude that submarining is simply a dangerous business, for even the most accomplished practitioners of undersea warfare. As the professionalism of China’s Navy increases, therefore, submarine accidents will remain a major concern. The Kursk, Thresher, Scorpion, Ming 361, Dakar, and many other submarine accidents occurred with the loss of all hands, but less fatal submarine accidents also occur relatively frequently. This discussion also illustrates that, unlike air crashes, submarine accidents frequently have survivors, so that the imperative to develop rescue capabilities is, therefore, acute. In order to affect a rescue of stranded submariners the time delay between the accident and rescue attempt must be short. Hypothermia and asphyxiation from the buildup of carbon monoxide or noxious gasses from fires or chemical reactions between seawater and battery acids generally kill their victims within 72 hours. HMS Thetis’ 99-member crew, for example, succumbed during rescue efforts while trapped in their stranded vessel in 1939.29 Two crucial elements will have a direct impact on the time to rescue. 26  “Canadian Dies of Injuries from Submarine Fire,” CBC News, October 7, 2004, http://www.cbc.ca/canada/story/2004/10/06/saunders041006.html (accessed June 26, 2009). This incident was reported upon in China’s most important naval publication: see Liu Linkun, “Examining Submarine Rescue from the Perspective of the Recent Russian and Canadian Submarine Rescue Failures”, Modern Navy (December 2004), pp. 58–9 (in Chinese). 27 The USS San Francisco accident was covered extensively in the Chinese military press. See, for example, Ge Lide, “The U.S. Nuclear Submarine Fleet In the Wake of USS San Francisco’s Collision with the Sea Bottom” on the website of China Military Net at http://www.chinamil.com.cn/site1/xwpdxw/2005-01/19/content_117477.htm (accessed November 13, 2006). 28 Robert A. Hamilton, “Sources: Sub Not at Fault in Collision,” New London Day, September 7, 2005. See also Robert A. Hamilton, “Damage to Groton-Based sub is Worse Than Expected,” New London Day, September 10, 2005. 29  Delays in first locating the stricken submarine and in getting personnel to the accident site with adequate equipment that could cut a hole through the exposed stern of the vessel contributed to the severity of this disaster. Gray, Disasters of the Deep, pp. 162–71.

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First, there is the problem of accurately determining the stranded vessel’s location. Occasionally, this task has been simple, as in 1923 when the US submarine O-5 sank as the result of a collision and was quickly lifted off the 30-foot deep bottom near the entrance to the Panama Canal. The water was so clear that submarine could be clearly seen from the surface.30 Similar accidents are quite possible to this day, perhaps including in the extensively shallow waters of China’s littoral. Unfortunately, locating the stricken submarine is rarely as easy as in the above case, even in shallow waters. To help solve this problem, many submarines—China’s included—are equipped with lighted or radio beacon buoys that can be released from a stranded submarine. These buoys, painted yellow and located in the bow and stern, are plainly visible in photos of contemporary PLA Navy submarines. Submarines also carry flares that can be launched to attract attention. A second factor crucial for rescue, of course, is that adequate rescue forces and machinery must be nearby. The crew of the USS Squalus was rescued in 1939 from waters off the New Hampshire coast by a rescue bell lowered and raised by cables onto the hatch of the submarine from the rescue vessel USS Falcon, which had fortuitously been ready to sail from Groton, Connecticut. Unfortunately, even the close proximity of rescue forces cannot guarantee a successful rescue outcome, as two recent cases from the Russian Navy illustrate. It is worth dwelling on these two cases in particular because they demonstrate the strong imperative to develop international cooperation in this sphere. The Kursk Tragedy On August 12, 2000, the Russian Navy’s five-year-old Oscar II-class guided missile submarine (SSGN) Kursk became disabled by an internal explosion and plunged to the bottom of the Barents Sea. The vessel lay trapped at a depth of 108 meters, approximately 85 miles off of the Russian port of Severomorsk. Up to 23 crew members trapped in the submarine’s rear compartments may have survived until approximately August 15.31 Repeated attempts by the Russian Navy to reach the submarine and save the surviving crew members ended in failure. Thus, the Kursk’s entire crew of 118 sailors and officers perished.

30 The entire 18-member crew was saved in this rapid rescue operation. See Gray, Disasters of the Deep, p. 117. 31 A thorough chronicle of the Kursk’s foundering and subsequent steps to rescue and then recover the crew is available at The Kursk Accident section of the Center for Non Proliferation Studies website at http://cns.miis.edu/pubs/reports/kursk.htm (accessed November 13, 2006). A note later found on the recovered body of a crew member stated that a total of 23 men survived the initial explosion and waited in vain for rescue in the aft section of the vessel. See “Kursk Timeline,” CNN.com, http://www.cnn.com/interactive/ world/0008/kursk.timeline/frameset.exclude.html (accessed November 13, 2006).

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On the day following the accident, August 13, the submarine was located by the sonar of the cruiser Pyotr Veliky,32 and Russian submersibles already may have been diving on the site later that evening.33 On August 14, Moscow revealed the submarine accident to the world. During the same day, foreign navies including Norway, the UK and the U.S., all offered assistance to the Russian Navy. However, these offers were initially rejected. Thus, Russian Deputy Prime Minister Ilya Klebanov commented on August 15: “We have all the necessary technology to carry out the [rescue] operation.”34 Meanwhile, numerous Russian Navy attempts to dock Priz-class rescue vehicles with Kursk failed – perhaps partially due to a storm that passed through the area.35 By August 15, Russian sources reported that there were no longer any signs of life aboard Kursk. The increasingly desperate situation finally pushed Russian leaders to explore the possibilities of international assistance. However, these efforts appear to have been somewhat half-hearted in nature. For example, a British submersible was flown into Norway, instead of to any of the Russian naval bases that were much closer to the stricken submarine.36 Moreover, when international aid from the UK and Norway did finally arrive on site on August 19, further time was expended on negotiations concerning how the countries intended to cooperate during the rescue operation.37 Norwegian deep sea divers succeeded in opening the Kursk’s rear escape hatch by August 21, just one day after beginning their operations.38 An April 2006 series that appeared in the Chinese naval journal 舰船知识 (Naval and Merchant Ships) provides a detailed examination of the Kursk accident. The analysis cites the initially held belief in the Russian Navy that the incident was triggered by a collision with a U.S. Navy submarine, noting the frequency of such undersea collisions in the Barents Sea. However, the Chinese author states unequivocally that the discovered cause of the accident was a faulty Russian torpedo. Moreover, this analyst pulls no punches in blaming Russian Navy leaders

32  “The Kursk Disaster: Day By Day,” August 24, 2000, BBC News, http://news.bbc. co.uk/1/hi/world/europe/894638.stm (accessed November 13, 2006). 33  “Project 1855 Deep Submergence Rescue Vehicle,” Global Security.org, http:// www.globalsecurity.org/military/world/russia/1855.htm (accessed November 13, 2006). 34  “Russian Submarine Rescue Attempt Underway in Arctic Waters,” CNN, August 15, 2005, http://archives.cnn.com/2000/WORLD/europe/08/15/russia.submarine.04/ (accessed November 13, 2006). 35  “Project 1855 Deep Submergence Rescue Vehicle,” Global Security.org. 36  “U.S. Analysis Suggests Crew Died Early,” August 17, 2000, CNN.com, http:// archives.cnn.com/2000/WORLD/europe/08/16/russia.submarine.04/. 37  “UK ‘Underwater Helicopters’ Arrives to Help Entombed Russian Sub,” August 19, 2000, CNN.com, http://archives.cnn.com/2000/WORLD/europe/08/19/russian. submarine.03/ (accessed November 13, 2006). 38  “Norwegian Divers Open Hatch of Stricken Nuclear Sub,” August 21, 2000, CNN. com, http://archives.cnn.com/2000/WORLD/europe/08/21/russia.submarine/ (accessed November 13, 2006).

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for their reluctance to accept international assistance, which it is observed was offered immediately after the accident was made public by Russian authorities.39 Rescue of AS-28 Priz Almost exactly five years after the Kursk tragedy, the AS-28 Priz submersible deployed on a training mission in the waters of Beryozovaya Bay, approximately 50 miles south of Kamchatka’s capital, Petropavlovsk. The propeller of the minisubmarine appears to have become ensnared by a discarded fishing net or by Sovietera surveillance equipment lying on the sea bottom.40 Trapped at 190 meters (about 625 feet)—significantly deeper than the wreck of the Kursk—the AS-28 Priz was too deep to allow the crew to simply abandon ship and swim to the surface. The following day, August 5, Russian ships appeared on the scene and attempted to free the submarine by dragging it along the bottom. When this was unsuccessful, the Russian Navy, out of options, wisely opted to call for international assistance at an early point in the developing crisis.41 Within 24 hours, help was on its way from the UK, the U.S., and also from Japan. In Scotland, a Royal Navy remotely controlled mini-submarine capable of cutting through steel cables 70 mm thick, was put aboard a military transport aircraft and began the long flight to the Russian Far East.42 The same day, a U.S. Navy Super Scorpio submersible was loaded on a C-5 Galaxy transport to make the same journey.43 Meanwhile, a flotilla of Japanese navy ships including Chiyoda, a submarine rescue mother ship, readied to sail for the waters of Kamchatka.44 On August 6, foreign assistance began to arrive in Kamchatka. While U.S. Navy elements, including deep-sea divers, waited in reserve, the Royal Navy 39  Wang Xinsen, “In Memoriam: the Kursk (1)”, Naval and Merchant Ships, 318 (March 2006), pp. 46–9 and Wang Xinsen, “In Memoriam: The Kursk (2)”, Naval and Merchant Ships, 319 (April 2006), pp. 54–8 (both in Chinese). 40  “Project 1855 Deep Submergence Rescue Vehicle,” Global Security.org. 41 It is worth noting, however, that the decision to seek international assistance was still opposed by some quarters within the Russian military. Thus, ADM Eduard Baltin, commander of the Russian Black Sea Fleet, stunned observers on August 5—particularly in light of the Kursk tragedy—when he said that asking NATO countries for help was a mistake, because the region in question was “filled with [Russian] military secrets.” See Anna Arutunyan, “Scorpio’s Subprize,” Moscow News, http://english.mn.ru/english/issue. php?2005-30-1 (accessed November 13, 2006). 42  Michael Thurston, “Britain Trumpets Role in Rescuing Russian Sailors,” Defense News, August 8, 2005, http://www.defensenews.com/story.php?F=1019711&C=navwar (accessed November 13, 2006). 43  “Russian Mini-Submarine Rescue Efforts in the Pacific,” Moscow News.com, http://www.mosnews.com/images/p/9956.shtml (accessed November 13, 2006). 44 Iain Ballantyne and Yoshiharu Fukushima, “Happy Outcome for International Sub Rescue,” Warships IFR, http://www.warshipsifr.com/pages/signal.html (accessed November 13, 2006).

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contingent, led by Commander Jonty Powis, spearheaded the international rescue effort, freeing the Priz on August 7. Thanks to the efforts of the international rescuers, but also the difficult and brave decision to invite foreign assistance, the entire seven-man crew of the Priz escaped from the episode unharmed. In November 2005 Modern Navy, one of China’s most prestigious naval publications, carried an extensive story related to the Priz rescue. Oddly, the focus of the article was not on the rescue itself, but rather on a remarkably detailed survey of the operational history of Russia’s Project 1855 Priz-class rescue submersibles. Though it does not directly relate the compelling details of the rescue, the discussion is nevertheless noteworthy in that it honestly identifies that the U.S., the UK and Japan all took actions to assist the Russian Navy with the rescue effort. It also minces few words in criticizing the Russian Navy: “This accident once again demonstrates that condition of Russian Navy undersea rescue equipment allows for little optimism.”45 This may reflect an internal PLAN debate, for another article from this same official PLA Navy journal (December 2004) expresses some evident reluctance with regard to asking for foreign assistance with respect to submarine rescue.46 Another Chinese article on the Priz rescue was published in September 2005 issue of Naval and Merchant Ships. Like the article described above, it does not address the facts of the actual incident, but rather explores the technical and doctrinal aspects of the “NATO submarine rescue system.” This article begins with the assertion, particularly applicable to the circumstances of China’s naval development, that the vast majority of submarine accidents have occurred in waters shallow enough to feasibly undertake rescue. Most encouraging, for the purposes of the present study, is that this article highlights the major efficiency benefits of submarine rescue activities that are international in scope.47 Highlighting China’s 45  Jin Tao, “The Former Soviet Union and Russia: A Review of Diving Capability Development”, Modern Navy, 146 (November 2005), pp. 48–51 (in Chinese). In this rendering of the operational history of the Priz-class rescue submersibles, it is mentioned that these platforms were used to investigate the crash site of the Korean airliner shot down by a Soviet fighter in 1983. 46 Here it is explained that “the U.S. and the former Soviet Union, these two maritime powers, themselves experienced serious accidents in the course of various patrols, and even when confronting the peril of destroyed vessels and lost crew members, still declined the assistance of foreign military forces …” Liu Lunkun, “Examining Submarine Rescue from the Perspective of the Recent Russian and Canadian Submarine Rescue Failures”, p. 58. 47  Zeng Zhirong, “New Spirit for Undersea Rescue: NATO’s Submarine Rescue System”, Naval and Merchant Ships, 312 (September 2005), pp. 28–30 (in Chinese). The analysis discusses the different advantages and disadvantages of both manned and unmanned rescue systems. It concludes that submarine rescues must generally be completed in less than 72 hours to be successful, and in that regard describes the importance of air mobility for rescue submersibles. The author additionally points out that rescue submersibles can also perform non-military tasks, such as retrieving the so-called “black boxes” from aircraft crash sites.

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interest in submarine rescue issues, an article from the October 2005 issue of the same journal actually shows a sequence of underwater photos of the Royal Navy Scorpio systems at work in cutting the Priz free from the cables that were trapping it.48 The above survey of historical accidents leads to some inescapable conclusions. Despite the best efforts of every country involved, future submarine accidents are a certainty, and some of these will present the opportunity for rescue. In some future cases, it may be that the crews will be able to leave the ship on their own accord using individual rescue gear.49 But history shows that more often, stranded submariners will perish without external assistance. In order to affect a successful rescue, a submarine’s location must be quickly determined and the vital equipment and expert personnel must reach the scene in a timely manner. As illustrated above, the Kursk offered an opportunity for rescue, and the consequent failure underlines the requirement to develop faster and more effective cooperative mechanisms for submarine rescue. The Priz example of successful international submarine cooperation stands in stark contrast to the Kursk tragedy. Evidently, some vital lessons have been learned by the international community. Opportunities for China in International Submarine Rescue China’s “new diplomacy” features a variety of bold and almost unprecedented (in the Chinese context) multilateral initiatives, for example the Shanghai Cooperation Organization, but has also encompassed bilateral naval exercises on a limited but growing basis. Perhaps in part spurred by China’s increasing stature as a global trade juggernaut, Chinese commercial aircraft and ships have adjusted to global operating and safety standards. In the context of U.S.–China relations, this process has been manifested in a variety of new initiatives and agreements. For example, China has led other nations in cooperating with the U.S. container security initiative (CSI), so that new port security measures do not significantly hinder the efficiency of maritime trade.50 48  Zhi Ge, “The Heavenly Scorpion and the LR5 Rescue Vehicle”, Naval and Merchant Ships (October 2005), pp. 20–21 (in Chinese). Interestingly, the authors have not encountered these photos in any other venue, either on the web or in any Western naval publication. 49 Apparently, the Chinese Navy regularly practice self-rescue via torpedo tube, using special breathing apparatus. See Wang Longqi, “A Insider Account of Submarine Crew Undersea Escape”, Modern Navy (November 2004), pp. 44–5 (in Chinese). There is some evidence that the PLA Navy is undertaking submarine rescue exercises with its newest classes of submarines. See Qian Xiaohu and Yu Zifu, “Submarine Probes into Ways of Turning New Armament into Fighting Power,” PLA Daily, August 21, 2006. 50  For background on this cooperative initiative, see “China Implements Container Security Initiative at Port of Shanghai to Target and Pre-Screen Cargo Destined for U.S.,” on the website of the U.S. Customs and Border Protection at http://www.cbp.gov/xp/cgov/

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With respect to military-to-military cooperation, a Military Maritime Consultative Agreement (MMCA) was signed between Beijing and Washington in 1998. The MMCA is designed to raise “measures to promote safe maritime practices and establish mutual trust [such] as search and rescue, communications procedures when ships encounter each other, interpretation of the Rules of the Nautical Road and avoidance of accidents-at-sea.” The agreement provides for annual meetings and also for working groups of naval professionals to discuss specific topics.51 Despite this clearly positive step, the overall military relationship was gravely damaged by the so-called “EP-3 incident” of April 2001, after which many cooperative activities were suspended. Since 2005, however, Admiral Fallon has spearheaded efforts to reengage with the PLA—an initiative that led to the fall 2006 bilateral naval search and rescue exercises. During one of these events recently, the PLA Navy Deputy Chief of Staff spoke of a desire to add “momentum” to the relationship.52 In spite of some recent tensions, for example related to the January 2007 Chinese anti-satellite test, Admiral Fallon’s initiative generally has set the tone for enhanced U.S.–China navy-to-navy cooperation. From a submarine-rescue perspective, the Kursk tragedy has served as a strong impetus for the world’s various submarine powers to accelerate cooperative submarine rescue initiatives. These initiatives have been concentrated among traditional alliance partners, but the subsequent founding in September 2004 of the International Submarine Escape and Rescue Liaison Office (ISMERLO) offers the potential for significantly widening the scope of international cooperation in this sphere. The opportunities for enlarged Chinese participation in these activities need to be taken seriously, especially in Beijing and Washington, if China is to develop as a “responsible maritime stakeholder.” An especially significant international submarine rescue exercise, dubbed Sorbet Royale, occurred near Taranto, Italy, in June 2005. During this NATO exercise, four submarines from Italy, Spain, the Netherlands and Turkey rested on the bottom of the Mediterranean Sea. Rescue vehicles from the U.S., Italy, France and the United Kingdom practiced “rescuing” sailors from these submarines, and were supported by vessels, divers, and medical support personnel from France, the Netherlands, Israel, Italy, Spain and the UK. Significantly, despite the secrecy traditionally associated with submarines, forces from Russia and the Ukraine also participated in the exercise. This proved to be of particular importance less

newsroom/news_releases/archives/2005_press_releases/042005/04282005.xml (accessed November 13, 2006). 51  See Charles A. Meconis, “U.S.-China Confidence-Building More Important than Detargeting,” Global Beat Issue Brief, 39, 14 July 1998, on the web at http://www.bu.edu/ globalbeat/pubs/ib39.html (accessed November 13, 2006). 52 Adam R. Cole, “Juneau, 31st MEU Arrive in Zhanjiang,” on the website of the Marine Corps News, November 15, 2006, at http://www.marines.mil/marinelink/mcn2000. nsf/lookup/20061116224611 (accessed November 13, 2006) .

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than two months later when the rescue of the Priz described above was strongly facilitated by international efforts.53 Similar efforts have been undertaken in the Asia-Pacific region, where major biannual submarine rescue exercises have been underway since 2000. In Pacific Reach 2004, held in the waters off of Cheju Island in South Korea, five participating countries conducted submarine rescue exercises involving three submarines and three surface ships. The priority that Washington placed on this event was demonstrated when a Russian heavy transport was contracted to deliver the U.S. Navy’s DSRV Mystic, because U.S. Air Force transports were committed to on-going operations in the Middle East. According to Captain Russell Ervin of the U.S. Navy’s Submarine Development Squadron 5: From arctic to tropical waters, from reef and shoal-littered littorals to the deepest blue water in the world … navies operating in Asian waters contend with the most challenging operating theater on the planet. Asian navies are emerging as submarine rescue thought leaders and have a great deal to offer the international community … In Asia, especially due to the distances and limited rescue assets, we depend on one another more than other areas of the world. 54

China was among the eight countries that sent observers to Pacific Reach 2004. In fact, a major article in Modern Navy discusses Pacific Reach 2004, and highlights China’s observer status in that event.55 This development may be a signal of Beijing’s increasing inclination to realize the benefits of international submarine rescue cooperation. The founding of a new and unprecedented international organization, ISMERLO, is a broader initiative that supports international cooperation in submarine rescue. According to the organization’s sophisticated and well-maintained website, the ISMERLO will “establish endorsed procedures as the international standard for submarine escape and rescue using consultation and consensus among submarine operating nations.”56 ISMERLO “is the international hub for information and coordination on submarine rescue, acting as the liaison office between the nation that has a disabled submarine and the rest of the submarine escape and rescue 53  Phil Maguinn, “ISMERLO Comes to Aid of Disabled Russian Submarine”, Undersea Warfare (Fall 2005), http://www.chinfo.navy.mil/navpalib/cno/n87/usw/issue_ 28/perfect.html (accessed November 13, 2006). 54  See Kyung Choi, Lt., USN, “Pacific Reach 2004, U.S. Foreign Navies Practice Submarine Rescue, Foster Cooperation, and Improve Interoperability,” Undersea Warfare (Summer 2004) http://www.chinfo.navy.mil/NAVPALIB/CNO/N87/usw/issue_ 23/reach2004.htm (accessed November 13, 2006). The primary mission of Submarine Development Squadron 5 (San Diego) is submarine rescue. 55  Zhao Yu, “The US, Japan, Korea, Singapore and Australia Conduct a Submarine Rescue Exercise”, Modern Navy (July 2004), pp. 44–5 (in Chinese). 56  See the International Submarine Search and Rescue Office website at http://www. ismerlo.org/ (accessed November 13, 2006).

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community.” According to the organization’s coordinator Bill Orr, “We look at the availability of rescue assets out there, provide notice for urgent requirements for rescue, and post that information on our web site. The nation that lost the submarine, as well as nations that can respond, can see that information and identify the best possible assets to respond to the disabled submarine.”57 While perhaps the organization’s co-location with major U.S. Navy facilities in Norfolk, Virginia, could be objectionable to certain states, it is still logical given the U.S. Navy’s long history in the realm of submarine rescue.58 This young international organization has already amassed an impressive record in submarine rescue—playing a vital role in the successful outcomes of both the Chicoutimi and Priz incidents. In the former case, ISMERLO information enabled the rapid location of a suitable towing vessel that proved crucial.59 And in the latter instance, ISMERLO played an important coordinating function, for example helping to locate a U.S. “K-loader” in Japan that was necessary for offloading of the Royal Navy’s rescue equipment in Kamchatka. China actually has already joined ISMERLO and provided some limited information, including, for example, points of contact within the PLA Navy. But unfortunately, according to ISMERLO’s website, “No details [regarding rescue systems] have been received from the People’s Liberation Army (Navy).”60 This source speculates that Chinese submarine rescue systems may conform to Russian specifications; hence, PLA Navy “submarines with a docking seat can receive a Submarine Rescue Vehicle (SRV) fitted with a NATO STANAG rescue skirt.” Obviously, the level of cooperation from the Chinese Navy in this regard is disappointing and there is ample room for improvement. It should be recognized that more robust membership for China in ISMERLO, and greater participation in international submarine rescue activities more generally, may come at some cost to Beijing, particularly when considered in the context of China’s traditional tendency toward secrecy. The Chinese military has long resisted Western-style transparency in an effort to hide its deficiencies and protect military secrets. This is less and less true today, and the PLA has made substantial progress in this realm. Submarine rescue information, in any case, is relatively benign, consisting of data such as rescue vehicle mating surface and 57  Mark O. Piggott, “ISMERLO Put into Action for Submarine Rescue Exercise”, Navy News Stand, June 15 2005, at the Global Security website http://www.globalsecurity. org/military/library/news/2005/06/mil-050615-nns01.htm (accessed November 13, 2006). 58 The U.S. Navy’s long history with submarine rescue has been noted in the Chinese military press. See, for example, Zhang Yanming, “A Memoir of the S-5’s Narrow Escape”, Global Military Affairs (2005), pp. 17–19. 59 HMCS Chicoutimi was disabled by a fire which killed one officer, and stranded in heavy seas in the North Atlantic without power. Absent ISMERLO’s quick identification and dispatch of a towing vessel the submarine would have sunk with significantly larger loss of life. 60 The ISMERLO website is at http://www.ismerlo.org/ (accessed November 13, 2006).

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hatch dimensions. Neither of these engineering issues is relevant to war-fighting. Besides, the U.S. and China both possess high-quality pictures of the relevant hull exteriors, so this should also not be a major concern.61 It is worth noting that all other major submarine powers, including Russia, have shared this sort of information with each other through ISMERLO. Moreover, any rescue operation involving a Chinese submarine would take place in direct collaboration with Chinese naval officers, implying that they could strictly control access to the stranded vessel, thus protecting any secrets in the submarine’s interior. Finally, the Chinese leadership should consider that more robust submarine rescue cooperation could become a positive example of the Chinese Navy’s willingness to address transparency—even with respect to some of its most advanced platforms. As two recent submarine accidents detailed in this chapter involved Russia, it is natural that much submarine rescue attention has focused on Europe and especially enhanced NATO cooperation with Russia in this realm. Nevertheless, it would be wrong to neglect the Asia-Pacific region, wherein a variety of powers, including Australia, Canada, India, Indonesia, Japan, Malaysia, North Korea, Pakistan, Singapore, and South Korea, in addition to China, continue to invest significantly in submarine capabilities. Chinese naval analysts have observed the important role that NATO has played in the submarine rescue arena, 62 and it is possible that multilateral forums will be most appropriate for addressing these issues in the Asia-Pacific region, as well. Indeed, Beijing’s special interest in undersea warfare provides an opportunity for drawing this rising power into a nascent, but growing web of cooperative relationships among “maritime stakeholders” that could bind Asia-Pacific states together for the twenty-first century and beyond. Conclusion Beijing should honor the memory of the crew that perished in the 2003 Ming 361 tragedy by pursuing submarine rescue technology, doctrine and training with full vigor. This imperative is underlined by three fundamental factors: (1) the expanding pace and sophistication of Chinese submarine operations; (2) that shallow littoral regions surround China and are thus amenable to rescue operations; and (3) the immense amount of merchant traffic off the Chinese coasts that increase the risks to submarines. These factors combine to virtually guarantee future accidents. Preparing for these incidents through increased participation in ISMERLO, and taking advantage of international rescue capabilities during future 61 There are hundreds of detailed photos of Chinese submarines on the internet, for example, see the website of China Defense Forum at http://www.sinodefenceforum.com/ (accessed November 13, 2006). 62  See, for example, Liu Lunkun, “Examining Submarine Rescue from the Perspective of the Recent Russian and Canadian Submarine Rescue Failures”, p. 59 and Zeng Zhirong, “New Spirit for Undersea Rescue: NATO’s Submarine Rescue System”, pp. 28–30.

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rescue operations will save lives, reduce distrust, and establish momentum towards greater integration of the PLAN into other international maritime initiatives. If the PLAN becomes a more active partner in ISMERLO, it would enjoy numerous benefits, not least the benefit of exchanging views on submarine rescue with the world’s foremost submarine powers. Full participation in submarine rescue exercises would help to “operationalize” U.S. Navy and PLAN confidence-building measures above and beyond the search and rescue exercises recently held, and also increase the personal exposure between elite segments of the two sides’ officer corps. Such a policy of enhanced military-to-military engagement and increasing participation in international organizations would increase transparency, would demonstrate a Chinese commitment to becoming a stakeholder in an important arena, and actually is wholly consistent with recent developments in Chinese foreign policy. For example, China has been steadily increasing its contribution to UN peacekeeping operations, offering up to 1,000 troops in September 2006 for service in Lebanon. China’s Navy is also increasingly active in world-wide military diplomatic initiatives such as a multilateral exercise planned for Spring 2007 with naval forces from Pakistan and the United States, among others. Washington and other Western states should encourage the above developments and warmly welcome the PLA Navy more fully into multilateral submarine rescue exercises such as Sorbet Royale and Pacific Reach. Since the April 2001 “E-P3 incident” when U.S.–China relations reached a new nadir and militaryto-military relations were suspended, the situation has improved and both sides appear ready to enhance U.S.–China military cooperation. There seems to be a broad recognition in Washington that, although China has a different political system, this rising power must be treated with due regard, so that new power will in turn breed new responsibility. Nowhere is this process more important than in the maritime domain. It is incumbent on the naval analytic community in both countries and throughout the Asia-Pacific region to elaborate further opportunities for naval cooperation, such as submarine rescue.

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Chapter 15

Commentary: Search and Rescue in South China Sea and Regional Cooperation ZHANG Jie

Chinese government has paid great attention to maritime search and rescue (SAR) for many years and has considered SAR as one of important public welfare establishments. SAR service is an important part of the state emergency response and rescue system. After years of effort and construction, China has primarily set up a relatively complete SAR system that aims at becoming “a modern fullcoverage, all-weather and quick-reaction water traffic safety guarantee system for effective and rapid SAR in case of any maritime distress in the area of China’s SAR responsibility,” and that has been greatly contributed to the fulfillment of international convention. Maritime SAR Resource Construction In order to normalize maritime SAR actions, rapidly, methodically and efficiently organize reactions to maritime emergencies, and minimize the losses of life and property at sea, the Chinese Government has formulated the “State Emergency Plan for Maritime SAR.” According to this plan, the maritime distress prevention and presentiment mechanism, emergency reporting system, SAR guarantee mechanism, and scientific decision mechanism are set up to perfect the maritime SAR support system, improve maritime emergency response and rescue abilities, and ensure the safety of life at sea. In addition, by formulating the “Maritime Distress Response Procedures for China Maritime Search and Rescue Center” and the “Emergency Response Plan for Oil Spillage in Sea Areas of China”, the SAR has been normalized and routinized gradually. China’s SAR operation is organized and conducted by China Maritime Search and Rescue Center under the coordination of “State Maritime SAR Inter-sector Meeting” composed of ministries and military authorities. The resources owned by members of the inter-sector meeting, maritime authorities, enterprises and individuals make up the force of China’s maritime SAR. The state’s public service, including Maritime Safety Administration watercrafts, naval vessels and aircrafts of maritime affairs, maritime police, and government authorities, are also the important resources to guarantee the maritime SAR operations and play an important role in maritime salvage. Now a maritime

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law-enforcement and SAR system covering the sea areas under China’s jurisdiction has been basically formed in China with information support and necessary guarantee provided by departments of meteorology, ocean and communications. In addition to developing and mobilizing the social resources for maritime SAR, China has kept specialized maritime SAR force through building the national specialized SAR network. The national specialized SAR force is under the control of Ministry of Communications. According to the changes of seasons and climate as well as maritime transportation, the Ministry of Communications can readjust the stand-to points of specialized SAR force to keep up with safety requirements of the ever-changing maritime transportation, operation and production. In order to increase the SAR success ratio and quicken salvage reaction of watercrafts nearby the maritime distress site, the state has built “China Watercraft Reporting System”. Chinese watercraft sailing in the sea area north of 9o N. and west of 130o E. are requested to report to China Watercraft Reporting Center in the effect that the center can estimate the watercraft’s situation and coordinate salvage. In addition, the shipping traffic system and automatic watercraft identification system have been successively built in China’s coastal waters and Pearl River estuary and Qiongzhou Straits of South China Sea. Additionally, China has built a maritime communication satellite system, a maritime safety information broadcasting system, a digital selective calling system, and a SAR satellite system in recent years. All of them have formed a network that receives and broadcasts maritime distress and safety information covering the area of China’s SAR responsibility. The construction and operation of these facilities are of important significance to China’s development in maritime emergency reaction. Maritime SAR Mechanism and Exercises According to the International Convention on Maritime Search and Rescue, 1979, it is the coastal states’ obligation and duty to search and rescue life at sea. As a contracting state, the Government of China pays great attention to the safety of life at sea and has contributed greatly to maritime SAR. In order to facilitate the maritime SAR operations and heighten the success ratio of life at sea search and rescue, a full scale maritime SAR exercise has been organized by the China Maritime Search and Rescue Center every year since 2000, each at a different marine area, which has accumulated precious experience for the center in maritime SAR operations in China’s offshore marine areas. The maritime SAR exercises conducted by the China Maritime Search and Rescue Center are in accordance with China’s maritime SAR mechanism that  The Control Regulations of Ship Report System of the People’s Republic of China.  The Ship’s Routing System in the Waters of the Pearl River Estuary (Provisional).  The Ship’s Routing System in the Qiongzhou Straits (Provisional).

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focuses on coordinating national and social resources. In the case of a maritime accident, the China Maritime Search and Rescue Center will mobilize the state agencies and local communities for joint maritime SAR operations. Maritime SAR exercises are essentially required to ensure unified command and concerted action of all SAR units in maritime SAR operations. In 2004, the China Maritime Search and Rescue Center and the Maritime Department of the Government of Hong Kong Special Administrative Region (HKSAR) jointly held a comprehensive SAR exercise that was named “2004 Joint Search and Rescue Exercise in South China Sea”. This exercise included salvage, maritime firefighting, and oil spill clean-up, and mobilized multiple forces including Government Flying Service of HKSAR, China’s state service, troops, medical institutions and other social forces totaling over 70 units, about 500 persons include 12 live “survivors”, two aircraft, 27 watercraft, two ambulances, 1,000-meter oil fence, four oil skimmers and a great amount of oil absorption felts etc. This joint SAR exercise staged by the China Maritime Search and Rescue Center was aimed at improving the participant units’ SAR skill and emergency response, lowering any failure possibility that might be caused by unskilled operations, and meanwhile, enhancing the coordination and cooperation among participant sectors, thus ensuring concerted action of all participant units and sectors in the SAR operations. Through this comprehensive exercise, each sector’s SAR ability, skill, integral consciousness, risk awareness, and peacetime practice were tested; and additionally, some problems and defects in SAR plans were found and relevant solutions were produced. In the exercise, the air, sea and land SAR forces of different sectors acted jointly and strengthened communication and understanding with each other, thus enhancing the cooperation and ensuring synergetic operations. The exercise also provided the participant units with an opportunity to understand the action plans and enhance their integrated strength. Through drawing up, amending, perfecting and implementing the exercise plans, all participant personnel were well informed and practiced. Through the exercise, some hidden problems such as communication frequency coordination, cooperation of aircrafts and watercrafts, utilization of firefighting and pollution-preventing facilities, equipment maintenance of rescue ships, skills of rescue personnel, and etc. were discovered. Any of these problems might bring about a great loss to the exercise and even the actual SAR operations, and the solutions to them were the basis for future action plan amendment and improvement. The Pacific Northwest is one of the regions with the fastest rate of economic development in the world. The economic development has brought about marine transport’s growth and prosperity. Meanwhile, the Northwest Pacific is a marine area frequently suffering typhoons, seasonal fresh gales, earthquakes and other natural disasters. On average 20–30 typhoons per annum are formed in the Northwest Pacific and South China Sea, which greatly threatens navigational safety. In recent years, the coastal states have realized that it is their joint obligation to protect the

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safety of life at sea, and have started to cooperate in maritime SAR operations. It is of great importance to strengthen communication and understanding in the SAR cooperation among states and regions. The interregional and transnational coordination exercises, and full-scale exercises and their planning, will be the optimal approach for SAR exchange, communication and cooperation. Therefore, the nature of cooperation in transnational and interregional full-scale exercise needs to be further discussed. Regional Cooperation in Maritime SAR As a contracting state of the International Convention on Maritime Search and Rescue, 1979, China has solemnly promised to ensure the safety of watercraft and personnel in the sea areas under China’s jurisdiction. Therefore, the Chinese Government has been focusing its attention on strengthening cooperation in maritime SAR with surrounding countries and regions. We signed the cooperative agreement for maritime SAR with the U.S. in 1987, started to take regular meetings for maritime safety with surrounding countries and regions every year from the 1990s, and achieved relevant agreements on the utilization of waters in maritime SAR, which provides effective and reliable guarantee for rapid and effective SAR in case of maritime emergency in neighboring waters. In 2004, the China Maritime Search and Rescue Center took part in the maritime SAR cooperation in Pacific areas, received the visit of U.S. Coast Guard Commander, held a sand-table exercise coded “Sino–Philippine Cooperation 2004” in October 2004, and convened the Ninth Four-Nation Maritime SAR Working Conference in November 2004. These regional cooperative activities strengthened communication and exchange and laid a firm foundation for cooperation in the field of non-traditional security issues. In May 2004, China’s coast-guard cutters visited Japan, participated in the comprehensive SAR drill held by Japan Coast Guard as a visitor, and made farranging exchanges. In July 2005, the Korean National Maritime Police Agency and Japan Coast Guard also sent their ships to the joint comprehensive SAR drill held in East China Sea. In recent years, in the SAR responsibility area of South China Sea, the China Maritime Search and Rescue Center has achieved great development in regional maritime SAR cooperation with the maritime SAR coordination centers of surrounding countries and regions. It, together with centers in Vietnam, Philippines, Malaysia, Hong Kong and Taiwan, has successfully completed the commissions in personnel rescue, information exchange and transmission in maritime distresses, and fulfilled its obligations and international liabilities. In order to improve its ability to organize, coordinate and command reaction in secure of life at sea and   See http://politics.people.com.cn/BIG5/8198/75410/75417/5142367.html (accessed September 23, 2007).   See http://news.qq.com/a/20040525/000581.htm (accessed September 23, 2007).

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oil spillage accidents, and to strengthen the exercises of maritime SAR forces, China Maritime Search and Rescue Center cooperated with Hong Kong and Macao for the first time in June 2000 to hold the joint SAR exercise at the Pearl River estuary. In order to improve its regional cooperative SAR level and quick reaction capability, in 2004, China Maritime Search and Rescue Center and the Government of Hong Kong Special Administrative Region (HKSAR) jointly held a comprehensive SAR exercise in the South China Sea. Those exercises included maritime SAR, maritime firefighting, and oil spill clean-up. Such exercises greatly improved the cooperative SAR skills and emergency treatment ability, and strengthened the regional SAR coordination and consciousness of cooperation. In December 2004 in the 28th typhoon of the year, 1,125 fishermen from 45 fishing vessels from Hainan were stranded near Dongsha Island in the South China Sea. They were in danger, and without food or fresh water supplies. After receiving the distress signal, the China Maritime Search and Rescue Center coordinated with Taiwan’s China SAR Association. Taiwan’s other departments also provided necessary assistance in typhoon prevention and salvage. Hong Kong dispatch aircrafts to examine the fishermen in distress. The South China Sea Rescue Bureau and Ministry of Fisheries respectively sent rescue vessels loaded with food, fresh water and medicines to the distress site under atrocious weather conditions. Thanks to the joint efforts of the three parties, the fishermen in distress were rescued in time. In this rescue action, the maritime SAR centers of three parties exchanged information in a smooth and timely manner and maintained mutual understanding and support, which was the guarantee of success. In August 2005, a fishing vessel from Hainan was in distress at sea and 13 fishermen floated to near Malaysia. With the efforts of Malaysian military authority and maritime SAR coordination center, the fishermen in distress received the necessary assistance in time. However, the rescue was delayed because of a misunderstanding between the persons in distress and the rescue persons, and there were some difficulties in the rescue coordination because of less-than-ideal communication. The persons in distress finally returned to China safely with the help of the Malaysian Government. This rescue action was a significant moment in the cooperation between the SAR centers of China and Malaysia and laid a foundation for future cooperation.

  See http://www.hq.xinhuanet.com/tbgz/2004-06/25/content_2380102.htm (accessed September 23, 2007).   See http://www.southcn.com/news/gdneWs/gdtodayimportant/200412080258.htm (accessed September 23, 2007).   See http://www.southcn.com/news/gdneWs/gdtodayimportant/200412080258.htm (accessed September 23, 2007).

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Development and Perspective of Regional SAR Cooperation A great development has been made in recent years in the regional SAR cooperation at the South China Sea. However, because of imbalanced development of the regions and problems of regional difference, further efforts should be made to strengthen cooperation, make up information gaps, and overcome inefficiencies in rescue caused by insufficient coordination. In 2002, there were two accidents in the South China Sea involving towed vessels floating away after a towline rupture. Both of the vessels were registered in Singapore and lost touch with the tug on the way from Japan to Singapore. When seeking the towed vessels, the tugs reported to the nearby Philippines Coast Guard. The Philippines sent aircraft to search but didn’t find the towed vessels. After one to three months of drifting, the two towed vessels finally stopped on the reef nearby Xisha Islands (Paracel Islands). Fortunately, both of the vessels had been treated before towing and carried no fuel, so there was no pollution to the South China Sea. However, in the course of drifting, the vessels, which were without any indicators or lights, might have brought great danger to navigational safety, especially to vessels sailing at night. The China Maritime Search and Rescue Center didn’t received any information about the two vessels in the course of drifting, and therefore didn’t release any information on navigational safety about the two vessels. As a result of this failure of information transmission and communication, the two hidden dangers existed at the South China Sea for months, and the rescue came up against many difficulties. The main task for the maritime SAR and coordination centers of surrounding countries and regions is to rescue fishermen in distress at South China Sea. There are a number of factors restricting this. The first is there is no unified channel for alarm information transmitting and receiving. Unlike merchant ship crews, fishermen in fishing operations are not good at calling for help with the international uniform distress frequency. Meanwhile, restricted in their understanding of the rescue systems of surrounding countries and regions, the fishermen in distress, especially in maritime distress far from land, have difficulties transmitting the distress information in time to the maritime SAR and coordination center of the nearest country or region, and as a result, it is hard to get timely rescue. The fishermen usually transmit the distress information back to their country using production communication frequency, and then the information is reported to the maritime SAR center via a local alarm channel. In such case, it is especially important for a timely rescue operation to strengthen coordination and communication among international and regional rescue centers. According to the International Convention on Maritime Search and Rescue, 1979, unless otherwise agreed between the states concerned, a party should authorize, subject to applicable national laws, rules and regulations, immediate entry into or over its territorial sea or territory of rescue units of other parties solely for the purpose of searching for the position of maritime casualties and rescuing

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the survivors of such casualties. Most of the countries and regions have entered into or approved the international convention on maritime search and rescue, but to all appearances, this clause to facilitate timely and effective rescue in case of maritime distress has not been performed completely. One of the reasons is that a sound and complete communication and coordination mechanism has not been built among national and regional maritime SAR and coordination centers, and as a result, necessary understanding and dialogues are unavailable. It is required by the International Convention on Maritime Search and Rescue, 1979, that a sound communication and coordination mechanism is built among the national and regional maritime SAR coordination centers, to increase SAR success ratio and lower losses of life at sea, and the contracting states have the responsibility and obligation to enact the convention. We believe that the goal can be achieved through joint efforts of all maritime SAR centers, and are looking forward to its coming at an early date.

 International Convention on Maritime Search and Rescue, 1979, Annex, Chapter 3; 3.1.2.

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Index

Figures are indicated by bold page numbers, tables by italic numbers. 9/11 attacks aftermath of and piracy 92–3, 94 response of the US 180–1 24-Hour Rule (US) 184 Achille Lauro incident 138, 138n16, 177–8 Agreement on Information Exchange and Establishment of Communication Procedures 153 air patrols 62, 124 al-Qaeda, sea base of 41 Area Maritime Security Committees (US) 190–1 armed robbery 27–8 See also piracy AS-28 Priz incident 246–8 ASEAN Plus Three 172–3 ASEAN Regional Forum (ARF) 171 Asia containerized trade 36–7 economic background 35 economic growth of 157–8 ports and shipping services 37 supply of maritime business in 38 threats to maritime trade 39–42 Assessment of the US Marine Transportation System, An (US) 179 Association of Southeast Asian Nations (ASEAN) 171 Declaration on the Conduct of Parties in the South China Sea 3–4 partnership with China 10, 93, 104–5, 150, 198–9 Automated Targeting System (US) 185 Automatic Identification System (AIS) 26 Baltic Sea 225–6 Bateman, Sam 63

bilateral cooperative programs between littoral states 119–20, 168–9 between littoral states and user states 120–4, 169–70 boundaries, maritime and control of piracy 48 delimitation 5 disputes over 151–2 and environmental protection 32–3 as problematic 29–30, 30 burden-sharing mechanism, need for 133 business, maritime country specializations 38–9 supply of in Asia 38 California Maritime Security Council 189–90 Cambodia, domestic legal arrangements in 149 capacity building 75, 95 Chertoff, Michael 60 Cheung Son case 87 China analysis of Kursk tragedy 245–6 articles on AS-28 Priz incident 247–8 authorities in change of prevention of oil pollution 208–9 capabilities for submarine rescue 241–2 Container Security Initiative (CSI) 73 containerized exports 36–7 contingency plans for oil spills 211 cooperation with ASEAN 150 in cooperative submarine rescue initiatives 249–53 Declaration on the Conduct of Parties in the South China Sea 3–4 domestic legal arrangements 145–6

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e nergy security as vital to 58–9 environmental quality variations 230–1 experiences with submarine accidents 239–41 as force for security 103 growing maritime interests of 57–8 as leader in cooperation against pollution 228–9 legislation concerning oil spills 211 maritime business in 39 measures to prevent oil pollution in 209–10 membership of ISMERLO 251–2 Military Maritime Consultative Agreement (MMCA) 249 need for cooperation over submarine rescue 237–9 oil imports 206 oil pollution compensation regime in 214 oil pollution emergency system in 211–14 oil pollution in coastal waters 207, 207–8 oil spill control model project in Yantai, 211–12 partnership with ASEAN 10, 93, 104–5, 198 plans for oil spill emergency response 215–16 and regional cooperation 104–7 risk of oil pollution 206, 206–7 search and rescue exercises 256–8 search and rescue system 255–6 shipbuilding in 59 Sino-American cooperation 75–80, 199–202, 201 training and drills for oil spills in 212 use of liquefied natural gas (LPG) in 59 Chung, C. 17 coastal habitats, degradation of 31 coastguards, Sino-American cooperation 76–7 coastguards (US) 191–2 Combined Maritime Patrol Teams (CMPTs) 125, 174

congestion on sea routes 84 constitution of oceans 4–5 Container Security Initiative (CSI) 70–3, 92, 183–6 containerized trade 36–7 growth of 162 Malacca and Singapore Straits 160 contiguous zone 4–5 continental shelf 5 Convention against Organized Crime 144 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) 22, 141, 144, 178 Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 31 Convention on the Law of the Sea (UNCLOS Convention) 4–5, 16–17, 18–19, 82, 133, 141, 155 convention-protocol cooperation against pollution 232–4 conventions for international transport 47 conventions for good order at sea 19–24, 23 cooperation assistance from other countries 62–3 bilateral programs 119–24, 168–70 boundaries and control of piracy 48 capacity building 75 catalysts for action on the environment 227 challenges and opportunities for 47–9 China as leader 228–9 Container Security Initiative (CSI) 70 convention-protocol, against pollution 232–4 current situation 196–8 difficulties in 102–4 difficulties in with search and rescue 260–1 information sharing 48–9 in law enforcement 71 limitations of programs 132–3 Malacca Strait Patrol Network 61–3 Malacca Straits 45 need for 42–3, 60–1

Index need for burden-sharing mechanism 133 new US maritime strategy 73–5 obligations and difficulties with 16–17 over environmental protection 222, 226–9 partnerships 73–80 and political situations 227–8 Proliferation Security Initiative (PSI) 68–9 regional 45–6, 149–55 regional, and China 104–7 regional, and pollution control 218–19 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) 68 Regional Maritime Security Initiative (RMSI) 43 required developments in 10–12 in search and rescue and China 258–9 Secure Freight Initiative 70–1 Shangri-La Dialogue 44–5 Sino-American 75–80 submarine rescue initiatives 249–53 tripartite patrolling programs 124–5, 148–9, 153 corruption in security forces 41 Council for Security Cooperation in the Asia Pacific (CSCAP) 16–18, 16n6 country specializations in maritime business 38–9 Customs-Trade Partnership Against Terrorism (C-TPAT) (US) 183, 186 Declaration on the Conduct of Parties in the South China Sea 3–4, 24, 93 Deep Sabre PSI exercise 69 degradation of coastal habitats 31 disasters, natural, as threat to trade 42 domestic legal arrangements 145–9 Doran, Walter F. 112 economic development and piracy and terrorism 49 economies Asian 35, 157–8

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energy resources development of 31–2 supply of to China as vital 58–9 environment concerns around piracy 152 programs for protection of 33 protection of and problems with boundaries 32–3 See also oil pollution; pollution Ervin, Russell 250 exclusive economic zone 5, 141–3 ‘Eyes in the Sky’ program 62, 124, 174–5 Fallon, William J. 64–5, 77, 122, 249 Fargo, Thomas B. 43, 44, 92 fishing Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 31 degradation of coastal habitats 31 illegal 31 Five Power Defense Arrangements (FPDA) 44, 175 Fixed Platforms, Protocol on 22 flags of convenience 85–7 France 225 freedom of navigation 104 gas

d evelopment of resources 31–2 transport of 52 good order at sea boundaries 29–30 defined 17–18 environmental protection 32–3 illegal activities 27–9, 28 and international law 18–24 marine resources 31–2 mindset change as necessary 33–4 requirements for 18 shipping and seaborne trade 24–7 Gu Wengen 79 Guo Boxiong 77 habitats degradation of 31 loss of 232–3

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hazards, man-made, as threat to trade 42 Hong Kong 70–1 hot pursuit 125, 150 Huang, Victor 61–2, 69 hub ports 162–3 ID cards for transportation workers 192 identification of ships Automatic Identification System (AIS) 26 long range identification and tracking (LRIT) 26–7 illegal activities See piracy; smuggling; terrorism in-bond system (US) 193 India, future influential role of 100 Indonesia attitude towards piracy 90–1 bilateral program with Malaysia 120, 168 bilateral program with Singapore 119–20, 168 cooperation with US 121–2, 123 domestic legal arrangements 147–9 military and economic contributions from US 64–6 national measures against piracy and terrorism 164–5 as outside the SUA Convention 143 and piracy 40–1 responses to Regional Maritime Security Initiative (RMSI) 43, 111–13, 116–18 tripartite patrolling programs 124–5, 153 Information Sharing Center (ISC), Singapore 68, 130, 172–3 information sharing for cooperation 48–9, 153–4 insurance and piracy 87–9 intelligence gathering 47–8 Interagency Committee for the Marine Transportation System (ICMTS) (US) 179 International Convention for the Safety of Life at Sea (SOLAS) 20, 20n17, 94 international law

and definitions of piracy 137–40 f or good order at sea 18–24 inadequacy of against piracy 140–4 See also law International Maritime and Port Security Act (US) 178 International Maritime Bureau Piracy Reporting Center (IMB-PRC) 82, 139, 153 International Maritime Organization (IMO) anti- piracy/terrorism measures 94–5 Jakarta Meeting on the Straits of Malacca and Singapore 127–8 International Ship and Port Facility Security (ISPS) Code 20, 20n17, 95 ISMERLO 250–2 Jakarta Meeting on the Straits of Malacca and Singapore 127–8 Japan assistance from 63 bilateral cooperation with littoral states 123–4, 169 containerized exports 37 domestic legal arrangements 146–7 nuclear waste shipping 102 and security in the South China Sea 100 Tokyo Ministerial Conference on International Transport Security 129 John, Eric G. 54 Joint Declaration of ASEAN and China on Cooperation in the Field of Non-traditional Security Issues 10, 93, 150 Kursk tragedy 244–6 law

d efinitions of piracy 137–40 domestic arrangements 145–9 inadequacy of against piracy 140–4 for international transport 47 Maritime Transportation Security Act of 2002 (US) 181–2, 181n19–23 PATRIOT Improvement and Reauthorization Act of 2005 (US) 188–9 against piracy, early 135

Index a nd regional cooperation 105–6 SAFE Port Act of 2006 (US) 185–6 law enforcement complicated by LOS Convention 149–50 cooperation in 71 liquefied natural gas (LPG) transport of 52–3 use in China 59 living resources 31 Lombok Strait 159 long range identification and tracking (LRIT) 26–7 Long-Range Identification and Tracking (LRIT) regulation 129 LOS convention See UNCLOS Convention Makassar Strait 159 Malacca Strait assistance from Japan 63 bilateral cooperative programs 119–24, 168–70 congestion in 84 container traffic 160 cooperation in maritime security 45 as high-risk zone 116, 119, 127 Indonesia’s initial reactions to RMSI 111–13 Malaysia’s initial reactions to RMSI 113–14 piracy in 40, 160–1 Singapore’s initial reactions to RMSI 114–16 size and amount of traffic 158–9 traffic through 52 Malacca Strait Patrol Network 61–3, 153, 173, 174–5 Malacca Straits Coordinated Patrol (MALSINDO) 44, 61–2, 173 Malaysia aid from the US 122 attitude towards piracy 91 bilateral program with Indonesia 120, 168 bilateral program with Singapore 120, 169 domestic legal arrangements 147–9

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military and economic contributions from US 66 national measures against piracy and terrorism 165–6 as outside the SUA Convention 143 piracy and terrorism as threat to 61 response to Regional Maritime Security Initiative (RMSI) 44–5, 113–14, 116, 118 tripartite patrolling programs 124–5, 153 Malaysian Maritime Enforcement Agency (MMEA) 166 Malsindo Coordinated Patrol (MCP) 124 man-made hazards as threat to trade 42 Marine Protected Areas (MPAs) 33 marine resources living 31 non-living 31–2 Marine Transportation System National Advisory Council (MTSNAC) (US) 179–80 Maritime Transportation Security Act of 2002 (US) 181–2, 181n19–23, 182n24–30 MARPOL Convention 20–1 Mediterranean region 224–5, 228 mega-hubs, security of 53 Memorandum of Understanding between ASEAN and China on Cooperation in the Field of Non-traditional Security Issues 10, 93 Military Maritime Consultative Agreement (MMCA) 249 Ming-361 incident 239–40 Mitropoulos, Efthimios 127–8 Mullen, Michael 60, 66, 69, 74, 79 multilateral measures 170–6 Najib Tun Razak 61, 62, 113, 114, 122 National Strategy for Maritime Security (2005) (US) 187–8 natural disasters as threat to trade 42 navigation, freedom of 104 Nazri Abdul Aziz, Mohamed 113 Nguyen Hong Thao 24 9/11 attacks aftermath and piracy 92–3, 94

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response of the US 180–1 non-living resources 31–2 North Sea, cooperation against oil pollution 219–20, 222–3 nuclear materials, transport of 101–2 oil, transport of 52, 102 oil pollution causes of 220–1 in China’s coastal waters 207, 207–8 Chinese authorities in charge of prevention 208–9 compensation regime in China 214 emergency response in the South China Sea 215 emergency system in China 211–14 measures to prevent in China 209–10 model project in Yantai, China 211–12 North Sea cooperation against 219–20 plans for emergency response in China 215–16 risk of in China 206, 206–7 in the South China Sea 222 technical improvements in shipping 220–1 training and drills in China 212 oil resources, development of 31–2 over-fishing 31 partnerships 73–80 China and ASEAN 10, 93, 104–5, 198 PATRIOT Act (US) 180–1 PATRIOT Improvement and Reauthorization Act of 2005 (US) 188–9 petroleum products trade in 24–5 transport of 52–3 phantom ships 87 Philippines domestic legal arrangements 149 military and economic contributions from US 67 national measures against piracy and terrorism 166–7 seaborne trade through 159–60 piracy 9/11 aftermath 92–3 anti-piracy capabilities of countries 91

a nti-piracy conferences 154 association with terrorism 41 bilateral measures against 168–70 capacity building against 95 Cheung Son case 87 and congestion on sea routes 84 data and reports on 82–3 decline of incidents 92–7, 101, 130–1, 197 definitions of 81–2, 137–40 different attitudes of countries towards 90–1 and economic development 49 economic situation of littoral countries 89–90 environmental concerns 152 extent and reporting of 27–8 first laws against 135 flags of convenience 85–7 and insurance 87–9 limited success against 48 in Malacca and Singapore Straits 160–1 modern 135–7 multilateral measures against 170–6 national measures against 164–8 phantom ships 87 private armed escorts 88 profile of pirates 161 regional cooperation against 149–55 and sea zones 151 statistics on 27–8, 28 surge of incidents 83–91 and terrorism 136, 161 as threat to trade 39–41 vulnerable shipping 84–5 war-risk areas 89 political situation and cooperation 227–8 pollution China as leader in cooperation against 228–9 convention-protocol cooperation against 232–4 cooperation against in regional seas 219–26 cooperation over environmental protection 226–9 habitat loss 232–3

Index l and-based 232 MARPOL Convention 21 oil pollution risks in China 206–7 regional cooperation as more effective 218–26 sea-based 232 by ships 21 South China Sea compared to the Mediterranean region 228 See also oil pollution Port Security: A National Planning Guide (US Department of Transportation) 178–9 Port Security Training Exercise Program (PortSTEP) (US) 191 Portand Maritime Act of 2001 180 ports deep-water 53 hub 162–3 number and size of 37 private armed escorts against piracy 88 Proliferation Security Initiative (PSI) 68–9, 92, 186–7 Protocol on Fixed Platforms 22, 141, 143–4 Qian Lihua 77, 79 ratification of conventions 22–3, 23, 155 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) 68, 82, 83, 96–7, 130, 154, 172 regional efforts in maritime security 45–6 cooperation 149–55 and globalization 195–6 IMO Jakarta Meeting on the Straits of Malacca and Singapore 127–8 Information Sharing Center (ISC), Singapore 130 Tokyo Ministerial Conference on International Transport Security 129 Tripartite Ministerial Meeting of the Littoral States on the Malacca and Singapore Straits 126–7 Regional Maritime Security Initiative (RMSI) 43–4, 92, 148, 173 bilateral cooperative programs 119–24

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Indonesia’s responses to 111–13, 116–18 main goal of 109 Malaysia’s responses to 113–14, 116 positive results from responses to 130–1 Singapore’s responses to 114–16 tripartite patrolling programs 124–5, 153 regional seas Baltic Sea 225–6 definition 218 Mediterranean region 224–5, 228 See also South China Sea Report of the Interagency Commission on Crime and Security in US Seaports 180 rescue See search and rescue; submarine rescue Reversing Environmental Degradation project (UNEP) 33 Rice, Condoleezza 64, 121 Rodman, Peter 77 Rosenberg, D. 17 Roughead, Gary 74, 79 Rumsfeld, Donald H. 112, 123 SAFE Port Act of 2006 (US) 185–6, 191 SAR Convention 21 SAREX 78–9 sea zones and piracy 151 seaborne trade containerized 36–7 extent of Asian 36 importance and growth of 24 petroleum products 24–5 safety and security of 25 threats to in Asia 39–42 world 36 search and rescue difficulties with cooperation in 260–1 exercises in China 256–8 regional cooperation and China 258–9 regions 25 SAR Convention 21 Sino-American joint exercise 78–9 system in China 255–6

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transmission of distress information 260 See also submarine rescue sector specialization of countries 38–9 Secure Freight Initiative 70–1 security challenges in the South China Sea 51–3 non-traditional factors 101–2 traditional factors 99–100 security forces as underpaid and corrupt 41 security issues, traditional and non-traditional See piracy; terrorism Shangri-La Dialogue 44, 93, 112, 113–14, 163 Ship Identification Number Scheme (SINS) 94 ship safety and security identification of ships 26–7 International Ship and Port Facility Security (ISPS) Code 20, 20n17 SOLAS Convention 20 ship security alert system (SSAS) 25 shipboarding regime 143–4 shipbuilding in China 59 ShipLoc 95 shipping services 37 ships phantom 87 technical improvements in and oil pollution 220–1 vulnerability to piracy 84–5 Singapore agreement with the US 120–1 attitude towards piracy 91 bilateral program with Indonesia 119–20, 169 bilateral program with Malaysia 120, 169 close relations with US 114 Container Security Initiative (CSI) 72–3 Deep SabrePSI exercise 69 domestic legal arrangements 147–9 Information Sharing Center (ISC) 68 military and economic contributions from US 66–7

national measures against piracy and terrorism 167–8 responses to RMSI 114–16, 118–19 tripartite patrolling programs 124–5, 153 Singapore Strait cooperation in maritime security 45 piracy in 40, 160–1 size and amount of traffic 158 Sino-American cooperation 75–80, 199–202, 201 smuggling 28–9 soft law 23–4 SOLAS Convention 20, 20n17, 94, 129 Sondakh, Bernard Kent 62, 111 Sorbet Royale 249 South China Sea as busy international sea lane 42–3 clash of interests in 103–4 compared to the Mediterranean region 228 cooperation over environmental protection 222, 226–9 as flashpoint for conflict 3 geo-strategic focus of Southeast Asia 15–16 as important sea 15 non-traditional security factors 101–2 oil pollution emergency response in 215 security challenges 51–3 as semi-enclosed sea 16 size and resources of 15 traditional security factors 99–100 Southeast Asia influence of US in 54–7, 55 major sea lanes 158–60 security challenges in 51–3 Southeast Asia Cooperation Against Terrorism (SEACAT) 56 Spratly Islands 3, 4 status of conventions 22–3, 23 Straits of Malacca assistance from Japan 63 bilateral cooperative programs 119–24, 168–70 call for burden-sharing 110–11 congestion in 84

Index c ontainer traffic 160 cooperation in maritime security 45 as high-risk zone 116, 119, 127 Indonesia’s reactions to RMSI 111–13 Malaysia’s reactions to RMSI 113–14 piracy in 40, 160–1 Singapore’s reactions to RMSI 114–16 size and amount of traffic 158–9 traffic through 52 Straits of Singapore cooperation in maritime security 45 piracy in 40, 160–1 size and amount of traffic 158 SUA Convention 22, 141, 143, 144 submarine rescue AS-28 Priz incident 246–8 China’s capabilities for 241–2 China’s experience with accidents 239–41 cooperative initiatives 249–53 factors influencing 242–8 Kursk tragedy 244–6 need for cooperation over 237–9 See also search and rescue Sudarsono, Juwono 123 Sunda Strait container traffic 160 size and amount of traffic 159 Syed Hamid 115 Tan Keng Yam, Tony 115, 116, 163 Teo Chee Hean 115 terrorism association with piracy 41 bilateral measures against 168–70 multilateral measures against 170–6 national measures against 164–8 and piracy 136, 161 SUA Convention 22 as threat to trade 41 threats from 162–4 US agency response to 183–6 US developments against 177–81 US executive response to 186–7 US states response to 189–90 Thailand connections with the US 67 domestic legal arrangements 149

271

threats to maritime trade in Asia 39–42 Tokyo Ministerial Conference on International Transport Security 129 trade Asian economy 35 threats to in Asia 39–42 See also seaborne trade Tripartite Ministerial Meeting of the Littoral States on the Malacca and Singapore Straits 126–7 tripartite patrolling programs 124–5, 148–9, 153 UNCLOS Convention 4–5, 16–17, 18–19, 82, 133, 137, 141, 150, 155 United Nations Convention against Organized Crime 144 Convention on the Law of the Sea (UNCLOS Convention) 4–5, 16–17, 18–19, 82, 133, 137, 141, 149–50, 155 United Nations Environmental Program (UNEP) 33 United States 24-Hour Rule 184 agency response to maritime terrorism 183–6 anti-piracy policies 92 Area Maritime Security Committees 190–1 Assessment of the US Marine Transportation System, An 179 Automated Targeting System 185 bilateral cooperative programs with littoral states 120–3, 169–70 California Maritime Security Council 189–90 Container Security Initiative (CSI) 183–6 Customs-Trade Partnership Against Terrorism (C-TPAT) 183, 186 developments against maritime terrorism 177–81 executive response to maritime terrorism 186–7 foreign port assessments 191–2

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Maritime Security in the South China Sea ID cards for transportation workers 192 in-bond system 193 influence of in Southeast Asia 54–7, 55 Interagency Committee for the Marine Transportation System (ICMTS) 179 International Maritime and Port Security Act 178 legislative response to maritime terrorism 181–2 Marine Transportation System National Advisory Council (MTSNAC) 179–80 Maritime Transportation Security Act of 2002 181–2 military and economic contributions from 64–7 Military Maritime Consultative Agreement (MMCA) 249 National Strategy for Maritime Security (2005) 187–8 need for cooperation over submarine rescue 237–9 new maritime strategy 73–5 PATRIOT Act 180–1 PATRIOT Improvement and Reauthorization Act of 2005 188–9 Port Security: A National Planning Guide 178–9 Port Security Training Exercise Program (PortSTEP) 191 Portand Maritime Act of 2001 180 Proliferation Security Initiative (PSI) 186–7

Report of the Interagency Commission on Crime and Security in US Seaports 180 response to 9/11 attacks 190–1 SAFE Port Act of 2006 185–6, 191 security exercises 191 Sino-American cooperation 75–80, 199–202, 201 state responses to maritime terrorism 189–90 status report of 2007 190–3 See also Regional Maritime Security Initiative (RMSI) user states, bilateral cooperative programs between littoral states and 120–4, 169–70 USS Philadelphia 243 Valencia, Mark J. 161 Vietnam, connections with the US 67 Wang Fushan 78 war-risk areas 89 Weatherbee, Donald 65, 75 West, Alan 163 Western Pacific Naval Symposium (WPNS) 175–6 Wisnumurti, Nugroho 111 Work Program to Implement the ASEAN Plan of Action to Combat International Crime 153–4 Young, Adam J. 161 Zoellick, Robert 54, 76, 122 zones, different legal status of 4–5