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Maritime Security in Southeast Asia

Over the last twenty years, maritime security in Southeast Asia has taken on a
much greater importance due to the growing economic and political weight of
Asia, as well as the Law of the Sea convention, which has resulted in 200-nautical-
mile exclusive economic zones (EEZs). Within these zones lie oil and fishery
resources, as well as important sea lanes of communication (SLOCs), which need
to be defended against competing claims by neighbouring countries; a highly
important topic, given that the Strait of Malacca and the South China Sea consti-
tute some of the world’s most important waterways providing vital commerce and
prosperity to many economies.
Whilst conventional challenges such as maritime territorial disputes and the
security of SLOCs remain, a range of non-traditional threats such as piracy and
maritime terrorism have emerged alongside competition for resources and strate-
gic access to increase the potential for conflict. This book seeks to examine the
challenges to maritime security in Southeast Asia and the wider fight against crime
at sea, as well as the measures that have been taken by the regional countries, extra-
regional countries and international organizations in response to these challenges.
A leading field of contributors identify the nature of the maritime security
problem and critically evaluate the various responses in the management of pre-
vailing and emerging security threats. As one of the few books to engage both the
maritime security challenges and responses, Maritime Security in Southeast Asia
will be an invaluable resource to academics, policy analysts, legislators and stu-
dents interested in security issues in Southeast Asia.

Kwa Chong Guan is Head of External Programmes at the Institute of Defence


and Strategic Studies, Nanyang Technological University, Singapore, and Co-
Chair of Singapore’s National Committee of the Council for Security Cooperation
in the Asia Pacific.

John K. Skogan is Senior Researcher at the Norwegian Institute of International


Affairs, presently engaged at the Norwegian Institute for Defence Studies,
Norway.
Routledge Security in Asia Series

Taiwan’s Security and Air Power


Taiwan’s defense against the air threat from mainland China
Edited by Martin Edmonds and Michael M. Tsai

Asia Pacific Security – Values and Identity


Leszek Buszynski

Taiwan’s Defense Reform


Edited by Martin Edmonds and Michael M. Tsai

Maritime Security in Southeast Asia


Edited by Kwa Chong Guan and John K. Skogan
Maritime Security in
Southeast Asia

Edited by Kwa Chong Guan


and John K. Skogan
First published 2007 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 5RN
Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001
Routledge is an imprint of the Taylor & Francis Group, an Informa business
© 2007 Editorial selection, © Kwa Chong Guan and John K. Skogan, © the
contributors
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Maritime security in Southeast Asia / Edited by Kwa Chong Guan and
John K. Skogan.
p. cm. – (Routledge security in Asia series 4)
Includes bibliographical references and index.
ISBN-13: 978-0-415-41388-6 (hardback : alk. paper)
1. Sea-power–Southeast Asia. 2. National security–Southeast Asia.
3. Southeast Asia–Strategic aspects. I. Kwa, Chong Guan. II. Skogan,
John Kristen.
VA620.M374 2007
359'.030959–dc22
2006026120

ISBN 0–203–96441–1 Master e-book ISBN

ISBN 978-0-415-41388-6 (hbk)


ISBN 978-0-203-96441-5 (ebk)
Contents

Notes on contributors vii


Preface ix
List of abbreviations xi

PART I
Introduction 1
1 Southeast Asian SLOCS and security options 3
ANDERS C. SJAASTAD

2 Re-thinking the safety of navigation in the Malacca Strait 14


BARRY DESKER

PART II
Challenges 19
3 The importance and security of regional sea lanes 21
JOSHUA HO

4 The regional dimension of territorial and maritime disputes 34


in Southeast Asia: actors, disagreements and dynamics
W. LAWRENCE S. PRABHAKAR

5 Maritime disputes in the South China Sea: strategic 49


and diplomatic status quo
RALF EMMERS

6 Piracy in the waters of Southeast Asia 62


CATHERINE ZARA RAYMOND

7 Maritime terrorist threat in Southeast Asia 78


ARABINDA ACHARYA
vi Contents
PART III
Responses 95

8 Building good order at sea in Southeast Asia: 97


the promise of international regimes
SAM BATEMAN

9 Archipelagic sea lanes passage in Southeast Asia: 117


developments and uncertainties
ROBERT BECKMAN

10 The US Regional Maritime Security Initiative and US 134


grand strategy in Southeast Asia
CHRISTIAN-MARIUS STRYKEN

11 Satellite-based tracking of ships as global crime control: 146


ISPS Code, AIS, SSAS and LRIT
JAN GEORG CHRISTOPHERSEN

12 Flags of convenience as a complicating factor 162


in combating crime at sea
GUNNAR STØLSVIK

PART IV
Comments and reflections 175

13 Terrorism at sea: combating what – and how? 177


JOHN K. SKOGAN

14 Reflections on the changing maritime security environment 189


KWA CHONG GUAN

PART V
Afterword 199

15 The important role of shipping: challenges ahead 201


TAY LIM HENG

Bibliography 205
Index 218
Notes on contributors

Arabinda Acharya is Visiting Associate and Manager of Strategic Projects with


the International Centre for Political Violence and Terrorism Research,
S. Rajaratnam School of International Studies, Nanyang Technological
University, Singapore. His research areas include human security, conflict
and political violence and terrorism.
Sam Bateman is Senior Fellow at the S. Rajaratnam School of International
Studies, Nanyang Technological University, Singapore. He is a former naval
officer who became the first Director of the Centre for Maritime Policy at the
University of Wollongong where he remains an adjunct Professorial Research
Fellow.
Robert Beckman is Associate Professor at the Faculty of Law, National University
of Singapore. He has a JD from Wisconsin and an LLM from Harvard. He spe-
cializes in law of the sea and the international regulation of shipping.
Jan Georg Christophersen is visiting Senior Research Fellow at the Norwegian
Institute of International Affairs. He is a criminologist and a Master Mariner
with wide practical experience from the sea and from trading, chartering and
insurance work in shipping.
Barry Desker is Dean of the S. Rajaratnam School of International Studies,
Nanyang Technological University, Singapore. He was Singapore’s
Ambassador to Indonesia from 1986–1993 and Chief Executive Officer,
Singapore Trade Development Board, 1994–2000. His research interests
include the World Trade Organization and free trade agreements, as well as
regional economic and security issues.
Ralf Emmers is Associate Professor and Head of Studies at the S. Rajaratnam
School of International Studies, Nanyang Technological University,
Singapore. His research interests include security studies, maritime security,
international institutions in the Asia-Pacific, and the international relations
of Southeast Asia.
Joshua Ho is Senior Fellow at the S. Rajaratnam School of International Studies,
Nanyang Technological University, Singapore and is a serving Naval Officer
with the rank of Lieutenant Colonel. He has an MA from Cambridge
viii Contributors
University, UK and an MSc (Management) (Distinction) from the Naval
Postgraduate School, California.
Kwa Chong Guan is Head of External Programmes at the S. Rajaratnam School
of International Studies, Nanyang Technological University, Singapore, and
Co-Chair of Singapore’s National Committee of the Council for Security Co-
operation in the Asia Pacific. He is also an Adjunct Associate Professor at the
Department of History, National University of Singapore.
W. Lawrence S. Prabhakar is Associate Professor, Department of Political
Science at Madras Christian College, Chennai (Madras), India. He is Visiting
Fellow, S. Rajaratnam School of International Studies, Nanyang
Technological University, Singapore and a founding member of the Centre
for Security Analysis, Chennai, India.
Catherine Zara Raymond is currently a Travel Analyst at Control Risks – an
independent, specialist risk consultancy. She was previously an Associate
Research Fellow, in the Maritime Security Programme, at the Institute of
Defence and Strategic Studies, Nanyang Technological University, Singapore.
Anders C. Sjaastad is Senior Advisor at the Norwegian Institute of International
Affairs. He has contributed to Arms Control in a Multipolar World (1996),
Deterrence and Defense in the North (co-ed.,1985), Nato – The Next Thirty
Years (1980). He was Minister of Defence, 1981–1986, and a Member of
Parliament, 1986–1997.
John K. Skogan is Senior Researcher at the Norwegian Institute of International
Affairs and is presently engaged at the Institute for Defence Studies, Oslo.
His fields of research and publishing include strategic affairs, arms control
and transatlantic relations. He is co-editor of Skogan/Brundtland, Soviet Sea
Power in Northern Waters (Pinter, 1990). In 1989–1990 he served as Deputy
Defence Minister.
Gunnar Stølsvik is Head of the Legal Section of the Norwegian Coast Guard.
Professionally he has focused especially on the statehood criteria, secession
and acquisitive prescription in International Law. He has participated in vari-
ous Norwegian delegations to the International Maritime Organization and
worked at ministerial level.
Christian-Marius Stryken worked as a researcher at the Norwegian Institute of
International Affairs while completing his chapter for this volume. He is
presently working as communications advisor in the lobbyfirm Argument.
He will submit his PhD thesis in international relations at the London School
of Economics.
Tay Lim Heng was appointed Chief Executive of the Maritime and Port
Authority of Singapore (MPA) with effect from 1 June 2005. He is currently
a board member of the Housing and Development Board of Singapore, the
Singapore Maritime Foundation and the Centre for Maritime Studies,
National University of Singapore.
Preface

We are, at the beginning of the twenty-first century, apparently standing in the


middle of a tidal shift in our understanding of what constitutes the maritime
security of Southeast Asia. Two world wars and the ensuing Cold War impressed
upon us the need for a blue water navy capable of dominating the oceans. The
consolidation of the late colonial state in the first half of the twentieth century
included the clearer demarcation of boundaries on land and sea for the control
of smuggling, movement of peoples, trafficking of persons and piracy. Post-
Second World War decolonization and nation building stressed sovereignty and
territoriality. The seas which constituted much of Southeast Asia and enabled
the flow and seepage of peoples for the making of heterogeneous communities
and hybrid cultures which defined the region were divided and became barriers
to the movement of persons, goods and ideas.
However, a new cycle of globalization in the closing decades of the last cen-
tury is transforming the way we construct the spaces of the seas. Trade as one of
the drivers of this cycle of globalization, as in earlier cycles of globalization, is
forcing us to reconstruct the network of ports and the sea lanes of communication
that link them. Ensuring the safety of these sea lanes of communication in more
efficient monitoring and regulating of traffic in congested stretches of seas, espe-
cially the Straits of Malacca, or measures to reduce the prospect of accidents at
sea and in ports take on new dimensions because the disruption of shipping
undermines the network of ports through which flows the trade that underlies the
globalization of our economies upon which we have predicated our economic
well-being. The probability of a post-9/11 transnational terrorist attack on sea
lanes may now be low, but the outcome of such an attack would have high conse-
quences and as such changes our understanding of what constitutes maritime
security, while blurring the distinction between security and safety.
The United Nations Convention on the Law of the Sea (UNCLOS) adopted in
Montego Bay, Jamaica on 10 December 1982 and entered into force on 16
November 1994 is also transforming the way we construct the spaces of the sea in
Southeast Asia. Both Indonesia and the Philippines have had to change their iden-
tities as nation-states to become archipelagic states. The UNCLOS demarcation
of contiguous and exclusive economic zones for coastal states is changing the
way we think of the sea. It is no longer a mare liberum as Hugo Grotius defined it
x Preface
in his defence of the Dutch seizure of a Portuguese carrack the Sante Catarina in
the waters of Singapore on 25 February 1603. The sea is now a resource to be
secured and managed. How to ensure this singly as a nation-state, or in coopera-
tion with other nation-states in the region, is the challenge.
Amidst these new challenges to the maritime security of Southeast Asia are the
old problems of territorial and maritime disputes, especially in the South China
Sea. The continued maintenance and development of new blue water naval capa-
bilities by major powers around Southeast Asia reconstructs the old spectre of a
naval stand-off in the waters of the South China Sea or the Indian Ocean. How do
we anticipate such a stand-off by ensuring cooperative, rather than competitive
naval strategies and building good order at sea?
It was to address these new challenges and old problems of maritime security in
Southeast Asia that the Norwegian Institute of International Affairs and the
Institute of Defence and Strategic Studies jointly convened two workshops, one in
Oslo in June 2005, and the other in Singapore in November 2005. Both NUPI and
IDSS would like to thank the Royal Norwegian Ministry of Foreign Affairs for this
initiative in bringing us together as part of a wider programme of
Norwegian–Singapore cooperation. Both institutes would like to thank the Royal
Norwegian Ministry of Foreign Affairs and the Consortium for Research on
Terrorism and International Crime, Oslo, for their funding support for this project.
The co-convenors of the two workshops and co-editors of this volume, Kwa
Chong Guan and John K. Skogan, would like to thank their colleagues for their
support and participation in this project. In particular, they would like to thank Lt
Col Joshua Ho for his assistance in organizing the project and for negotiating the
publishing of the volume, and Ms Beverley Loke for her help in the final stages of
editing the papers for this volume.
We hope that this volume will interest not only our colleagues in academia and
policy institutions researching maritime security, but also members of the ship-
ping community and staffs of navies, for ultimately it is their problems and
challenges that were the subjects of the workshops we convened and the papers of
this volume.
C. G. Kwa
John K. Skogan
List of abbreviations

ACSA Acquisition and Cross-Servicing Agreement


AIS Automatic Identification System
AMM ASEAN Ministerial Meeting
APEC Asia-Pacific Economic Cooperation
ARF ASEAN Regional Forum
ASC ASEAN Security Community
ASEAN Association of Southeast Asian Nations
ASG Abu Sayyaf Group
ASL archipelagic sea lanes
ASSeT Accompanying Sea Security Teams
CBMs confidence building measures
CMPT Combined Maritime Patrol Team
COMSAR Sub-Committee on Radiocommunications and Search and
Rescue
CSCAP Council for Security Co-operation in the Asia Pacific
CSL cooperative security locations
DoD Department of Defense
DWT deadweight tonnage
EADS European Aeronautic Defence and Space Company
EAS East Asia Summit
EEZ exclusive economic zone
EiS Eyes in the Sky
ETA estimated time of arrival
FATF Financial Action Task Force
FON freedom of navigation
FOS forward operating site
FPDA Five Powers Defence Agreement
FPSO Floating Production Storage Offloading
GAM Gerakan Aceh Merdeka/ Free Aceh Movement
GDP gross domestic product
GMDSS Global Maritime Distress and Safety System
GPS Global Positioning Systems
xii Abbreviations
IALA International Association of Maritime Aids to Navigation
and Lighthouse Authorities
ICC International Chamber of Commerce
ID identification
IED improvised explosive device
ILO International Labour Organization
IMB International Maritime Bureau
IMO International Maritime Organization
IMSO International Mobile Satellite Organization
INMARSAT International Maritime Satellite System
ISIS Institute of Strategic and International Studies
ISO International Organization for Standardization
ISPS International Ship and Port Facility Security
ISSC International Ship Security Certificate
JCG Japan Coast Guard
JI Jemaah Islamiyah
JPDA Joint Petroleum Development Area
JWC Joint War Committee
KMM Kumpulan Militan Malaysia
LCM Landing Craft Mechanized
LCU Landing Craft Utility
LCVP Landing Craft Vehicle, Personnel
LIMO Low Intensity Maritime Operations
LNG liquefied natural gas
LRIT long range identification and tracking
LST Landing Ship-Tank
LTTE Liberation Tigers of Tamil Elam
MAAs Monitoring and Action Agencies
MALSINDO The Trilateral Malacca Straits Coordinated Patrols
MEPC Maritime Environment Protection Committee
MILF Moro Islamic Liberation Front
MMEA Malaysian Maritime Enforcement Agency
MMI Majelis Mujahidin Indonesia
MNLF Moro National Liberation Front
MOB main operating base
MPA maritime patrol aircraft
MSC Maritime Safety Committee
MSP Malacca Straits Patrol
NATO North Atlantic Treaty Organization
NAV
Sub-Committee Sub-Committee on Safety of Navigation
OECD Organization for Economic Co-operation and Development
OEEC Organization for European Economic Cooperation
OSCE Organization for Security and Cooperation in Europe
PFLP Popular Front for the Liberation of Palestine
Abbreviations xiii
PIRA Provisional Irish Republican Army
PLA People’s Liberation Army
PRC People’s Republic of China
PSI Proliferation Security Initiative
PULO Pattani United Liberation Organization
QDR Quadrennial Defense Review
ReCAAP Regional Cooperation Agreement on Combating Piracy
and Armed Robbery against Ships in Asia
RMSSAR Regional Maritime Surveillance and Safety Regime
RMSI Regional Maritime Security Initiative
SAR Convention International Convention on Maritime Search and Rescue
SEATO Southeast Asian Treaty Organization
SLOCs sea lanes of communication
SOLAS International Convention for the Safety of Life at Sea
SSAS Ship Security Alert System
STANAVFORLANT Standing Naval Forces Atlantic
STAR Secure Trade in the Asia-Pacific Region
STCW International Convention on Standards for Training,
Certification and Watchkeeping for Seafarers
SUA Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation
SURPIC Surface Picture Surveillance System
TAC Treaty of Amity and Cooperation
TEU twenty-foot equivalent units
TNI-AL Tentara Nasional Indonesia Angkatan Laut, Navy
of the Republic of Indonesia
ULCC ultra large crude carrier
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
USPACOM US Pacific Command
VHF very high frequency
VLCC very large crude carrier
WCO World Customs Organization
WMD weapons of mass destruction
PART I

Introduction
1 Southeast Asian SLOCs and
security options
Anders C. Sjaastad

The importance of the Southeast Asian sea lanes of communications (SLOCs) to


the economies of both established and emerging Asian powers is beyond question
and thus of utmost significance for the overall global economy. Moreover, the
attention devoted to safeguarding the innocent passage of commercial shipping
through the Southeast Asian straits is only going to increase as countries such as
China, India and Japan are scrambling to secure deliveries of energy and raw
materials to fuel their booming economies. For instance, China recently surpassed
Japan to become the number one ‘user’ nation of transports through the Malacca
Strait. Thus, the safety and security of the SLOCs are already hot topics in Asian-
Pacific affairs and both littoral states and user countries pursue policies they
claim are designed to achieve those goals. The purpose of this introductory chap-
ter is to explore and analyse the nature of the security challenges facing Southeast
Asia and then discuss the various security options, be they national, bilateral or
multilateral, and to what extent they are available.
All parties – whether littoral states, user countries or other interested actors
will unanimously favour steps and arrangements that will safeguard innocent pas-
sage of commercial shipping through Southeast Asian waters – at least in theory.
However, when it comes to drawing up and agreeing upon ways and means to
achieve these aims, things become difficult. It is when nations agree on proper
arrangements, share the responsibility and even establish institutions that interests
diverge and even become conflicting. This is partly because of differing national
priorities, but is also a result of mistrust, lack of confidence and hidden agendas.
For some of the littoral states who can still remember their colonial past, the prin-
ciple of sovereignty is sacrosanct and any arrangement or action that could be
seen to undermine it is taboo. And seen with Southeast Asian eyes, it appears that
the United States’ first priority nowadays is to fight international terrorism
regardless of other threats or considerations. Countries such as Indonesia and
Malaysia may certainly share some of the American worries, but without regard-
ing fighting terrorism to be an all-consuming business.
There is a natural tendency for Western observers, including this one, to look
for Atlantic/European solutions to Asian security challenges – partly because
these institutions are familiar, but also because they have proved largely success-
ful in the Atlantic/European theatre. However, there is an understandable
4 Anders C. Sjaastad
reluctance amongst Asians to emulate European behaviour and institutions not
least for historical and ideological reasons.
Another frequent Asian objection to adopting Western organizations is that
most of them are relics from the Cold War era and consequently irrelevant to pre-
sent-day Asia. The counter-argument that most of these institutions still serve the
old continent well is not enough to erase the bleaker aspects of the European
legacy.

The security challenges


In most of Asia, unlike in Europe, traditional military threats prevail and the use of
military power to pursue political aims is still regarded as a state option. In addition,
new unconventional and asymmetrical threats have become prominent, widespread
and imminent. In Europe, the armed forces are reduced in numbers and military
expenditure is cut while the remaining forces are restructured to face asymmetrical
threats in the European theatre as well as being capable of being deployed to fulfill
‘out-of-area’ missions. But unlike in the world overall, parts of Asia have seen mili-
tary expenditure and the armed forces substantially increase. This is to a large extent
explained by the multifaceted threats many Asian nations potentially face. But it is
also partially due to the lack of cooperation between the armed forces of Asian
countries. In Southeast Asia, this is largely the case whether one speaks of coopera-
tion on a bilateral or multilateral level, a result of the limitations that the principle of
sovereignty places on the ‘newly’ independent countries.
Apart from traditional conflicts rooted in unsettled or disputed borders, or stem-
ming from historical animosity, the most likely serious security challenges to
Southeast Asian countries are derived from the complex territorial disputes in the
potentially resource rich waters of the South China and East China Seas. China
claims virtually the whole of the South China Sea including all islands, islets and
rocks as its exclusive economic zone (EEZ) based on a so-called ‘historical’ right.
This ‘imperialistic’ claim would imply that China demands areas even within, for
instance, Malaysia’s territorial waters off Borneo. Beijing’s position, however,
hardly holds up in any international court and China, being a party to the UN
Convention on the Law of the Sea (UNCLOS), is bound by its principles. Whilst
China is still pushing its claim, it is a handy tool to involve the various countries of
the Association of Southeast Asian Nations (ASEAN), rather than entertaining
much hope of getting its demand accepted. However, ASEAN itself is ridden with
controversies when it comes to the South China Sea since many of its members
have conflicting territorial claims and more distant members are reluctant to get
involved. In early 2005, for instance, there was a naval stand-off between Indonesia
and Malaysia over the disputed area of Ambalat in the Sulawesi Sea. This delicate
situation is reinforced by China’s ‘divide and rule’ strategy with regard to the South
China Sea. Beijing has succeeded in engaging separately two of the ‘frontline’
states, namely the Philippines and Vietnam, and has entered into bilateral agree-
ments with them concerning the South China Sea issues. This has, not surprisingly,
created increased suspicion inside the organization and the ensuing lack of trust
Southeast Asian SLOCs and security options 5
has been carried over when facing other challenges such as terrorism and piracy.
As a net result this has limited the possible use of ASEAN as a more potent secu-
rity instrument.
What has been achieved, however, within the auspices of ASEAN is an agreed
code of conduct when it comes to behaviour and confidence building measures in
the South China Sea. However, as a testimony to the delicacy of even agreeing
upon such a set of behavioural rules, several of the claimant states did not want a
legally binding ‘code of conduct’ – all they could accept was a declaration guiding
the intended conduct in the South China Sea. That being said, the declaration has
worked well, disciplined the various states’ behaviour and the incidents have been
kept low-key and restrained. Nevertheless, the claimant countries have from time
to time taken small and ‘innocent’ steps hoping to improve their own position
without trying to rock the overall status quo situation.
All potential security challenges and conflicts in Southeast Asia can, in princi-
ple, be handled through a pragmatic approach apart from the territorial disputes,
whether they exist on land or at sea. None of the countries, big or small, are likely
to compromise their claims in the South China Sea in the foreseeable future.
Thus, rather than compromising on the one hand or resorting to military means on
the other, the parties have put the conflicts aside for future deliberations.
However, that is what makes the South China Sea issues so difficult and always
potentially dangerous for Asian security.
The piracy threat to the SLOCs is disputed amongst the Southeast Asian coun-
tries themselves. Since 9/11 some countries, the US prominent among them, have
been looking for any connection between piracy and international terrorism. The
Southeast Asian countries would argue that so far there is no proven link in the
Southeast Asian waters, but that they will be looking for any evidence since com-
bating international terrorism is a common obligation for any civilized country,
something the Bali terrorist acts have demonstrated. However, when the challenge
is isolated to combating piracy, different perspectives and interests rule, and the
various possible security options are controversial.
Even the term ‘piracy’ is debated when it comes to the illegal activities that
occur in various Southeast Asian straits, with the Malacca Strait prominent
among them. Indonesia and Malaysia will argue that according to the definition
of piracy in UNCLOS, there is no piracy taking place in the Malacca Strait, only
armed robbery. Piracy is by definition an activity that takes place solely on the
high seas, not in the territorial waters of some littoral state.1 Since the southern
part of the Malacca Strait is so narrow (20 nautical miles), there are no interna-
tional waters between the territorial borders of Indonesia and Malaysia. In fact,
that makes these two countries the main littoral states of the Malacca Strait,
while Singapore mainly borders the Singapore Strait. While all three countries
are equally interested in safeguarding commercial shipping through the Malacca
Strait, the difference in geographical location makes Singapore more relaxed
when it comes to involving user states in the patrolling and policing of traffic. In
this connection, one is always reminded that Indonesia and Malaysia fought vig-
orously in UNCLOS, and succeeded, to avoid the Malacca Strait and other straits
6 Anders C. Sjaastad
from being defined as international straits. Thus, these straits permit innocent
passage but the jurisdiction rests with the littoral states within their territorial
borders of 12 nautical miles.
According to the available statistics, the number of acts of piracy in the
Southeast Asian waters is not great2 and does in reality encompass many different
types of illegal activities as pointed out in the chapter by Catherine Zara
Raymond. Although piracy in these waters has been a traditional trade for many
centuries, the level increased after the Asian financial crisis of 1997–98 and
despite variations, was a significant phenomenon until the tsunami struck in
December 2004. The sharp drop in reported incidents suggested that the Aceh
Province housed many pirates, with a number of them killed, and their boats
destroyed, by the tsunami. After a lull of five months following the tsunami, the
pirate activities started to increase again.
It is a statistical fact that more acts of piracy take place on the Indonesian
side of the Malacca Strait than on the Malaysian side. Indonesia is of course a
vast littoral country and the authority of Jakarta is not greatly observed in the
more remote parts of the country. Poverty is widespread, and the Asian financial
crisis and the tsunami hit Indonesia very hard and dramatically worsened the
situation for many already living close to subsistence level. Piracy is also bred
by inefficient law enforcement capability in Indonesia, which is plagued by cor-
rupt officials with a lack of resources at their disposal. Furthermore, there exist
criminal syndicates who organize piracy from land and, for instance, recruit
daytime fishermen to become pirates at night, executing various missions.
Thus, piracy in these waters is to a significant extent an expression of the social
and economic conditions existing on land. Poverty is consequently a recruit-
ment factor.

Security options
Security in Southeast Asia is commonly regarded to be firstly domestic, sec-
ondly bilateral/trilateral and only thirdly multilateral. In addition, security
problems are frequently believed to be created by major powers infringing upon
the sovereignty of the littoral states, particularly in connection with the security
of the SLOCs. Thus, some Southeast Asian countries invoke as an absolute prin-
ciple that no security cooperation should limit national sovereignty. Equally
absolute is a second principle banning any outside interference in domestic
affairs and in this connection ‘interference’ is defined comprehensively.
Although these principles may sound familiar, reasonable and subscribed to by
many newly independent countries, in Southeast Asia they are applied more vig-
orously than in most other places. Thus, unlike in Europe where there is
frequently a trade-off between sovereignty and cooperation in order to enhance
common security, these attitudes will severely limit many potentially viable mul-
tilateral security options and will even infringe upon the use of bilateral
arrangements in Southeast Asia.
Southeast Asian SLOCs and security options 7
National security options
The ability to pursue a successful national security policy differs significantly
among the Southeast Asian countries. Malaysia has lately devoted significant
resources to build up a national capacity to police and patrol the Malacca Strait.
These efforts include spending a considerable amount of money to establish a
monitoring system covering the Malacca Strait and the launch of a new maritime
agency to boost security in Malaysia’s territorial waters, enforce maritime laws
and conduct search and rescue operations.3 This coast guard, which became oper-
ational in November 2005, has the necessary assets available and in place for that
to happen. But Malaysia is still willing to accept financial contributions from
‘user’ countries to cover both financial investments and operational costs of mon-
itoring activities and surveillance of the straits. So far Japan has been the only
user country to contribute financially to the Malacca Strait surveillance both
through its shipowners’ association and via other channels.
Indonesia on the other hand lacks resources to pay for any monitoring installa-
tions and would really need outside economic assistance. Only recently did
Indonesia separate its police force from the military, a move that hopefully will
lead to an increased law enforcement capacity since the Indonesian armed forces
have never assigned any priority to fighting piracy in its waters. Japan has, in fact,
financed a number of patrol boats to enable Indonesia to monitor the straits.
Furthermore, Japan is also supposed to have helped Indonesia to acquire at least
some surveillance capability. The Japanese efforts prove that Indonesia has diffi-
culties in buying the necessary assets to police its territorial waters. Finally,
Indonesian units have been training with the US Navy in conducting counter-
insurgency and anti-piracy missions. However, defence ties between the two
countries were largely severed in 1991, when Indonesian forces launched a
bloody crackdown on pro-independence protesters in East Timor. In November
2005, the US resumed its military ties with Jakarta and is already providing
defence equipment to Indonesia, largely to support maritime security.4

Bilateral security options


Asia is full of bilateral security treaties, arrangements and relationships, and it
is frequently difficult to evaluate correctly the significance of some of them.
However, the most important treaties definitely carry an Asian-wide impor-
tance, such as the bilateral and mutual security treaties between the US and
Japan, the US and South Korea and the US and Taiwan, and these treaties con-
stitute security frameworks that influence the actions and behaviour of other
security players on the Asian scene. The real significance of the so-called
China–Russian ‘strategic partnership’ is more difficult to assess beyond observ-
ing that when these major countries are bent on cooperating – at least within
certain parameters – rather than outright competing for power and influence,
this will have a stabilizing effect on the Asian security environment. In 2005
they even conducted a joint naval exercise, code-named Peace Mission 2005,
8 Anders C. Sjaastad
which was the first one ever, and this may be an indication of an emerging con-
dominium in parts of East Asia despite the inherent Russian suspicion of
China’s future ambitions. The troubling China–Japan relationship is also worth
mentioning. Their historically based antagonism compounded by present-day
territorial disputes in the East China Sea, is bound to be a defining element in
Asian affairs. But the most decisive factor for Asian security is the evolving
US–China relationship, partly characterized by cooperation in important fields
but also dominated by rivalry for power and influence.
How do the bilateral/trilateral agreements and relationships in Southeast Asia
fit into this picture? In safeguarding the shipping activities in the Malacca Strait,
one can speak of a loose trilateral cooperation. Malaysia and Indonesia have the
closest relationship whereas Singapore, both in terms of geography and when it
comes to shared interests, is a more distant partner. However, the limits to even
the bilateral Malaysian–Indonesian cooperation are demonstrated when dealing
with the sensitive topic of ‘hot pursuit’. ‘Hot pursuit’ would mean that one coun-
try’s law enforcement unit could follow a suspect across another state’s border and
into its territorial waters, and if necessary, apply force. It is evident how useful
such a mutual rule of engagement would be in fighting piracy, but it would also
imply a concession in terms of sovereignty. Not surprisingly, once again the prin-
ciple of unimpeded national sovereignty has won the day in Southeast Asia. All a
legal follower can do is to ‘hand over’ the pursuit to the next country’s law
enforcement agency, whether it is present or not. The consequence is of course a
less efficient counter-piracy capability in the Malacca Strait and, to compensate at
least partially for this inadequacy, there would have to be intimate mission coor-
dination and shared real-time intelligence, of which none is available today.
Third party assistance in monitoring and patrolling the Malacca Strait, apart
from financial contributions, has also been declined by the littoral states. India,
for instance, requested some time ago to have merchant shipping escorted by
some private security organization under the pretext of guarding them against
pirates. The request was viewed by Malaysia as unacceptable and was turned
down. The reason was simply that although foreign escorts might be seen only
as a marginal infringement upon the sovereignty of the littoral states, it could
turn into a serious violation once an incident involved an exchange of fire.
Japan has also proposed to ‘assist’ in patrolling the Malacca Strait with its coast
guard, especially after a Japanese-registered tugboat was hijacked by pirates in
early 2005. In 1997, a prominent Japanese think-tank had toyed with the notion
of ‘ocean peacekeeping’ as a mission for Japan. More recently, Japan had indi-
cated that it was prepared to renew its commitment to patrol the Malacca Strait.
Whenever there is talk about Japan acquiring a new mission, whether it is non-
military in the sense that it is the Japanese Coast Guard getting involved or it is
the Japanese Navy extending its ‘defence parameter’, it is usually seen by its
Asian neighbours as part of a grand strategy. This creates, for obvious historical
and political reasons, a lot of sensitivity in the various Asian capitals. And in
light of the almost hostile reaction to the semi-official US proposal to use
American assets in patrolling the Malacca Strait, some quarters tend to believe
Southeast Asian SLOCs and security options 9
that the new Japanese ‘activism’ is spurred by US pressure. Thus, the various
Japanese proposals are likely to continue to be rejected. Nevertheless, to some
Southeast Asian nations, Japan is still less objectionable than India when it
comes to assuming a safeguarding role in the Southeast Asian waters, with the
latter being the prime suspect for nurturing a hidden agenda.
India, in fact, began its ‘Look East’ policy of engagement with its Southeast
Asian neighbours in the 1990s, following the dissolution of the Soviet Union. In
September 2005, India held its first naval exercise with Thailand and also con-
cluded its semi-annual exercise with Indonesia, with both taking place near the
mouth of the Malacca Strait. An Indian official had underlined that although India
is not party to any security arrangement in the Malacca Strait, the immediate pur-
pose of the joint patrols is to prevent smuggling, piracy, drug and gun trafficking,
poaching and illegal immigration in the region.5 However, in Malaysian ears, for
instance, this may not sound as unproblematic and innocent as it is presented.
China on the other hand has so far represented no challenge to the sovereignty
of the littoral states in the Malacca Strait, much unlike its policy in the South
China Sea. With its booming energy and raw material imports and its increasing
dependency on the Asian straits, China is – not surprisingly – concerned about the
security of the SLOCs. Thus, it has indicated a willingness to contribute finan-
cially to the monitoring of the Malacca Strait. And recently it was announced that
‘China has agreed to work closely with Singapore and other regional countries to
tackle the threat of terrorism and piracy in the Straits of Malacca’.6 From a
Malaysian perspective, China is trying to behave as a good neighbour in order to
counter US influence in Southeast Asia, whereas Malaysia itself is no stranger to
a policy of balancing China against the US. There exists, no doubt, a lingering
Malaysian suspicion that behind the US concern for the security of the Malacca
Strait and its campaign against piracy, one can track an American ambition to
establish some kind of legal regime in the Malacca Strait institutionalizing a mul-
tilateral responsibility for safeguarding the SLOCs. At the same time, there is a
Malaysian notion that no major power should have any interest in threatening or
disrupting the free flow of energy transport. Even China and Japan in their present
moods would gain nothing by trying to prevent commercial ships from supplying
the other country.

Multilateral security options


When dealing with potential multilateral security options for Asia, the most strik-
ing absence is the lack of available multinational security organizations. There
exists neither an Asian collective defence alliance like the North Atlantic Treaty
Organization (NATO) nor any collective security organization like the
Organization for Security and Cooperation in Europe (OSCE). And although many
Asians would argue that these European institutions are leftovers from the Cold
War, few Westerners are ready even today to write off the utility of these organiza-
tions, particularly since they have been retailored to fit a new security
environment. At least to an outside observer, most of Asia’s security predicaments
10 Anders C. Sjaastad
continue to be more similar to the armed confrontation that existed in Europe dur-
ing the Cold War than to the present-day post-Cold War era. However, regardless of
what constructive role such institutions could have played in Asia’s future security
equation, they are not even vaguely visible on the Asian horizon. At present, Asia
has only three multilateral organizations of any security relevance – the Asia-
Pacific Economic Cooperation (APEC), the ASEAN Regional Forum (ARF) and
the regional ASEAN itself. Of the three, APEC’s collective security significance is
negligible beyond the military capability of the individual members which is sub-
stantial but never applied in a coordinated and mandated fashion. Thus, APEC is
not much more than a meeting place for Asian-Pacific leaders and where mostly
economic and trade issues are discussed.
The ARF was originally conceived as a multilateral consultative forum to dis-
cuss and promote cooperative security within the ASEAN region and in particular,
to ensure the involvement of China in a regional dialogue. The ARF has since its
inception in 1993 discussed various security challenges, but it is noteworthy that
the participating countries have conceded to a request by China not to debate
explicitly about the Spratly Islands, although they have expressed concern about
the overlapping sovereignty claims in the region.7 As membership exploded, it was
decided in 1996 that the ARF would only admit as participants countries that had a
direct influence on the peace and security of the East Asia and Pacific region. In
July 2004 Pakistan joined the ARF process as its twenty-forth participant. In its
2002 meeting the ARF concentrated on preventing any financing of terrorism and
later condemned the terrorist bomb attacks. However, apart from publishing the
Annual Security Outlook in which participating countries submit assessments of
the security prospects in the region, the ARF as an organization can hardly be said
to have moved beyond issuing common statements. In the foreseeable future, the
ARF is unlikely to become a forceful security actor in the Asia-Pacific region.
ASEAN was originally created to establish trust and mutual confidence
between distrustful and antagonistic countries. Paradoxically, it was set up to pro-
tect the national sovereignty and independence of member countries, not to limit
their freedom through mandatory cooperation and regional integration. Nowhere
is this more apparent than in ASEAN’s strict adherence to the principle of non-
interference – the most notable exception being the repeated call for Myanmar to
expedite its democracy pledges. Apart from such incidents, even ‘progressive’
ASEAN countries, who from time to time criticize this practice, are easily agi-
tated once their own country and policies come under fire by fellow members and
will, when the chips are down, readily abide by this principle. When ASEAN was
established, it was not intended to be primarily an economic organization, since
both then and even up to the present day many of the economic and trade agree-
ments in Southeast Asia have been purely bilateral. Economic issues have,
however, become dominant over time and this is currently the present situation.
But since 9/11, security questions and especially the fight against international
terrorism have come into increased focus.
During the ASEAN Ministerial Meeting in June 2003, Indonesia formally pro-
posed the establishment of an ASEAN Security Community (ASC), the idea
Southeast Asian SLOCs and security options 11
being that ‘ASEAN should work to transform itself from a strictly “conflict man-
agement” entity into a “conflict resolution” institution’ to make it more relevant
and responsive to the new security challenges facing the region’.8 This resulted in
the ASEAN leaders signing the Declaration of ASEAN Concord II, dubbed the
Bali Concord II, during the ninth ASEAN Summit in October 2003 in Bali. The
Bali Concord II provides for the creation of an ASEAN Community ‘comprising
three pillars, namely political and security cooperation, economic cooperation,
and socio-cultural cooperation that are closely intertwined and mutually reinforc-
ing for the purpose of ensuring durable peace, stability and shared prosperity in
the region’.9 In order to operationalize the ASC, ASEAN must strengthen already
existing norms and institutions and, where necessary, establish new ones. Now the
members are trying to spell out what shall constitute the security pillar. One com-
plication for designing a comprehensive security strategy for the region is that the
ASEAN countries still lack the European notion of shared security and the need
to act collectively in confronting crises. Incidentally, that ‘mindset’ was also the
traditional European approach to sovereignty and international institutions until
the end of the Second World War. The wartime experience did, however, teach the
Europeans a hard lesson about the inadequacy of purely national security.
Lacking formal institutions and organizations in Asia, what can the countries
do to improve the low level of cooperation through specific arrangements and
codes of conduct? A key to solving many of the hot territorial disputes that under-
lie most of the Asian inter-state conflicts is to try to reach a meaningful
compromise combined with an agreement for shared resource extraction in dis-
puted offshore waters. At least in areas such as the South China Sea, the
sovereignty of the islets and rocks have no inherent value apart from being the
basis for claiming EEZs which can again give sole rights to fisheries and energy
extraction. However, if these resources are somehow shared, the sovereignty issue
becomes much less important. Even China and Japan are flirting with such ideas
in the East China Sea and despite their currently strained relations, have con-
ducted a series of negotiations to seek a mutually acceptable solution.10 If this line
of approach continues to be too controversial, an alternative and interim solution
can be to enter into a moratorium on territorial claims along the lines of the
Antarctic Treaty of 1959. This treaty stipulates that ‘nothing contained in the
treaty may be interpreted as a renunciation, denial, or support of a claim to terri-
torial sovereignty in Antarctica’ and that no new claim may be asserted while the
treaty is in force.11 The afore-mentioned declaration of intended conduct in the
South China Sea could in this connection be turned into a more binding document
to serve as a confidence-building measure to enhance mutual trust and security.
While ASEAN-conducted naval exercises and military manoeuvres are still a
distant proposition, some of the littoral member states are increasingly getting their
act together when it comes to coordinated behaviour in the Southeast Asian region.
In mid-2004 Indonesia, Malaysia and Singapore began coordinated naval patrols in
the Malacca Strait. The plan was for all three countries to contribute up to seven
ships to the patrol, but with each ship remaining under its own nation’s command.12
In late 2005 the three countries invited Thailand, as a close neighbour, to take part
12 Anders C. Sjaastad
in the joint maritime patrols of the Malacca Strait.13 However, the policing of the
Malacca Strait continues to be a sensitive diplomatic issue. Indonesia’s navy chief
said in an interview in 2004 that foreign governments – including the US – were
primarily interested in the waterway because it was economically strategic, rather
than because of terrorism fears. Singapore on the other hand still holds out the pos-
sibility that it may require more help in patrolling its coasts in the future, and
possibly from the US.14 In September 2005 the same four ASEAN nations
launched joint air patrols of the Malacca Strait under the ‘Eyes in the Sky’ (EiS)
programme, where planes from Indonesia, Malaysia, Singapore and Thailand are
allowed to cross into each other’s air space. Initially, the four countries are taking
turns conducting two patrols a week. In connection with the launch of the air
patrols, the Malaysian Defence Minister stated: ‘Hopefully this will send a strong
message to the international community that we are serious about maintaining the
security of the Malacca Strait’ and he added that he hoped other countries, includ-
ing Australia and the US, would offer to participate.15 The minister’s latter hope is
worth noting in view of Indonesia’s and Malaysia’s instant rejection in 2004 of
what appeared to be a US offer to have American forces help patrol the strait.
While these joint patrols fall well short of what NATO used to deploy, for
instance the standing naval forces in the Atlantic under joint command – the
STANAVFORLANT – or the Alliance’s integrated air force surveillance, it is still
a major step forward towards establishing multilateral security structures in
Southeast Asia. Another important development would be for these countries to
agree on a joint command and control system instead of leaving the ships and the
airplanes under exclusive national command. However, that may for the foresee-
able future be a bridge too far.

Notes
1 UN Convention on the Law of the Sea, Article 101.
2 The figures vary significantly from year to year. 2005 saw only 12 pirate attacks in
the Malacca Strait, the lowest figure in seven years and down from 38 attacks in 2004.
See The Strait Times Interactive, 31 January 2006.
3 ‘Malaysia to launch new maritime security force’, The Strait Times, 11 October 2005.
4 The New York Times, 27 February 2006.
5 ‘India sees new strategic sea lane in Andaman Sea’, Daily Times, 30 September 2005.
6 Channelnewsasia.com, 25 October 2005.
7 The Far East and Australasia, 36th Edition, London: Europa Publications, 2005, pp.
1280–1.
8 C. R. Carlos, ‘Towards a regional rapid response experts cooperation group in the
Asia Pacific: issues and challenges’, Perspectives on Asia-Pacific Security for the 21st
Century, Conference arranged by the Asia-Pacific Center for Security Studies,
Honolulu, Hawaii, 12–13 September 2005.
9 Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia, 7 October 2003.
10 Both parties have suggested various schemes for joint development of energy
resources in the East China Sea. However, since the two sides disagree over the
position of the border between their EEZs, they have failed to agree on the
geographical areas of cooperation. SCMP.COM, 24 March 2006.
11 Antarctic Treaty, Article 4.
Southeast Asian SLOCs and security options 13
12 ‘Anti-piracy drive in Malacca Straits’, BBC News, 20 July 2004.
13 The Jakarta Post, 12 December 2005.
14 ‘Anti-piracy drive in Malacca Straits’.
15 ‘Air patrols for Malacca Strait’, BBC News, 13 September 2005.
2 Re-thinking the safety of navigation
in the Malacca Strait
Barry Desker

There is now increased concern over the issue of maritime security in the
Malacca Strait. Most discussions have focused on the risk of maritime terror-
ism.1 However, this is a ‘low probability, high impact scenario’ that attracts
attention because of the post-9/11 heightened awareness of the threat arising
from acts of terrorism and political violence. In reality, the key issue that should
be addressed in assessing the safety of shipping in the Straits of Malacca and
Singapore is the question of the safety of navigation. As shipping traffic through
the straits increases exponentially, the probability of collisions, oil spills and
shipwrecks has increased in tandem. The debate over the threat of maritime ter-
rorism has over-shadowed the importance of upgrading safety and navigational
aids, including electronic information systems, vessel monitoring systems, the
maintenance of navigational beacons and effective means for identifying ship-
ping traffic across and through the straits and minimizing the risk of collisions. I
am not arguing against the increased focus on maritime security and the need for
vigilance against the threat of terrorism. I am stressing that the international
community should not be so preoccupied with the terrorist threat that it ignores
the more vital, but less newsworthy, task of ensuring that the increased shipping
traffic through the straits does not overwhelm the infrastructure that exists to
ensure a continued smooth flow of international shipping across and through the
Straits of Malacca and Singapore.
Two examples suffice to highlight the significance of the Straits of Malacca and
Singapore to international shipping. First, oil flows through the straits are three
times greater than the Suez Canal/Sumed pipeline and 15 times greater than oil
flows through the Panama Canal. Second, two-thirds of the tonnage passing through
the straits consists of crude oil from the Persian Gulf bound for Japan, South Korea
and increasingly, China. More than half of the world’s shipping tonnage passes
through the straits. The International Maritime Organization (IMO) estimates that if
for some reason the straits were closed, all excess shipping capacity would be
absorbed, ‘with the effects being strongest for crude oil shipments and dry bulk car-
goes such as coal... [which] could be expected to immediately raise freight rates
worldwide’.2 From a regional standpoint, the increase in intra-regional trade has
resulted in the expansion of cross-straits cargo and passenger traffic, increasing the
risk of collision and accidents arising from human error or mechanical failure.
The safety of navigation in the Malacca Strait 15
September 11 changed the way the civil aviation community approached the
handling of hijacking incidents because the intention of the hijackers was to kill as
many as possible in suicide attacks. In the past, the intention was to get as much
publicity and as much ransom as possible with the minimum loss of life. Similarly,
the maritime community is now paying greater attention to the risk of ‘low proba-
bility, high impact scenarios’ such as the possible hijacking of a tanker or a liquefied
natural gas (LNG) carrier for use as a human-guided missile, or an attack on a com-
mercial or naval vessel at narrow points in the straits intended to disrupt traffic
flows within the waterway. It must be recognized that the idea is not so far-fetched.
Jemaah Islamiyah operatives arrested in Singapore in late 2001 had undertaken
operational surveillance and considered the possibility of an attack on US naval ves-
sels in Singapore waters off the Straits of Singapore. At its narrowest point, between
Raffles Lighthouse and Batu Berhenti, the Straits of Singapore is 1.2 nautical miles
wide, creating a natural bottleneck if there were a collision or grounding, aside from
the probable pollution of the maritime environment.
Nevertheless, our concern with this possibility should not result in our lack of
attention to the importance of the maintenance and upgrading of the safety and
navigational aids in the Straits of Malacca and Singapore. One of the conse-
quences of the Asian financial crisis of 1997–8 and the aftermath of the overthrow
of President Soeharto in Indonesia was the reduction in funding for the upkeep
and maintenance of such social infrastructure in Indonesia. In the post-Soeharto
era, the move towards greater regional autonomy and the devolution of power to
the provinces has meant that the central government in Jakarta has fewer
resources to expend on areas with no direct impact on Indonesian society. From
Jakarta’s perspective, the provision of navigational and safety aids is the responsi-
bility of the international shipping community, even while Indonesia adopts a
territorial perspective on the issue of freedom of navigation through the Malacca
Strait and remains committed to the principle of the primary role of the littoral
states in ensuring the safety and security of navigation.
Part of the problem is that a clear distinction existed earlier between mar-
itime safety and maritime security. Maritime security dealt with ‘those
measures employed by owners, operators and administrators of vessel, port
facilities, offshore installations, and other marine organizations or establish-
ments to protect against seizure, sabotage, piracy, pilferage, annoyance or
surprise’.3 Maritime safety, on the other hand, dealt with ‘those measures
employed by owners, operators and administrators of vessel, port facilities, off-
shore installations and other marine organizations or establishments to prevent
or minimize the occurrence of mishaps or incidents at the sea that may be
caused by sub-standard ships, unqualified crew or operator error’.4 The IMO
focused on maritime safety issues while security issues were deemed to be
within the provenance of the security authorities of states. Post-9/11, this tradi-
tional dichotomy between safety and security in the maritime realm has given
way to a growing realization that a close inter-relationship exists between mar-
itime safety and maritime security. Maritime safety is now regarded as an
integral part of maritime security.
16 Barry Desker
However, the argument of this assessment is that the concept of maritime secu-
rity goes well beyond maritime safety issues and maritime counter-terrorism
operations and should include attention to transnational crimes including piracy,
armed robbery, environmental pollution and people, weapons and narcotics
smuggling. A comprehensive approach to the question of maritime security would
therefore be multidimensional and would be reflective of the newer post-Cold
War security agenda. Such an approach would recognize the shift in attitudes
towards governance. Instead of the earlier attachment in Southeast Asia to non-
interference and non-intervention and an emphasis on the sovereignty of states,
newer norms are emerging which emphasize the commitment of the international
community to intervene if there are communities at risk. The rise of doctrines pro-
claiming the importance of human security, the right to protection and the
importance of regional and international institutions has paved the way for a
review of approaches to the management of straits and waterways used for inter-
national shipping. Traditionally, the emphasis was on the interests and concerns of
the littoral states. However, because such straits were seen as international high-
ways with vessels engaged in transit bearing no responsibility for reducing the
risk of accidents, collisions, oil spills and trans-boundary crimes, the shipping
community was unwilling to bear the costs of measures designed to increase the
safety and security of navigation. On the other hand, for the littoral states, there
was no incentive to spend scarce domestic resources for upgrading facilities
which earned no revenues. The littoral states used international institutions such
as the IMO to remind the user states of their responsibility for meeting the costs
of such upgrading without offering a commensurate increase in their role in the
governance of the transit regime.
The changed strategic environment in the Straits of Malacca and Singapore pro-
vides an opportunity to rethink the relationship between the littoral states and the
user states. Instead of a focus on sovereignty and the national interest of states,
greater attention should be given to the impact on the global community of disrup-
tions to international commerce if straits used for international shipping are closed
because of errors of omission or commission. This new environment is of particular
interest to two communities of states. First, the littoral states – Indonesia, Malaysia
and Singapore – because of the threat of pollution and the possible risk of attacks on
onshore facilities. Second, the user states, especially China, Japan and South Korea,
which are dependent on the Malacca Strait for the smooth and efficient transit of
cargo, especially energy supplies. Other user states are the major maritime powers,
such as the United States, which are concerned about the possible threat to their
naval vessels traversing through the straits. While the threat of terrorism is low, the
concern with possible risks has created an environment supportive of a reassess-
ment of the benefits and costs of regional and international cooperation.
The changing attitude on the issue of governance was signaled at a meeting of
foreign ministers of the three littoral states in Batam on 2 August 2005. The min-
isters ‘welcomed the assistance of the user states, relevant international agencies
and the shipping community’ in ensuring the safety of the Straits of Malacca and
Singapore. Besides the involvement of the major users of the straits, the three
The safety of navigation in the Malacca Strait 17
ministers highlighted the need to engage the states bordering what they described
as the ‘funnels’ leading into both straits, including countries such as India and
Thailand. While Singapore had been an advocate of a greater role for user states,
Malaysia and Indonesia had earlier resisted such pressures because it was per-
ceived as a diminution of their sovereignty.5 The change in attitudes also reflected
changes in the strategic and economic interests of the littoral states. As Port
Kelang and Tanjong Pelapas Port have become significant ports and have
attracted growing volumes of trans-shipment cargo, Malaysia’s interests increas-
ingly parallel Singapore’s interest in ensuring the safety of navigation for
international shipping and the maintenance of the security of sea lanes in the
straits. Indonesia’s acquiescence occurred because its newly elected leaders
sought the revival of its economy and wanted to be seen as supportive of greater
international cooperation in maintaining the security of sea lanes in the light of
increased international attention to the terrorist threat in the region, especially in
Indonesia. India’s interest in the straits had been evident after 9/11 when Indian
naval vessels had escorted US vessels transiting the straits. The interest in Thai
involvement was indicative of regional concern with the brewing crisis in south-
ern Thailand where a homegrown insurgency has been invigorated in recent years
and there are growing concerns that Muslim militancy elsewhere in Southeast
Asia, as well as the Middle East, may influence trends in the country. At the same
time, neither were the positions of user states static. While Japan retained an inter-
est in influencing the deliberative process through its funding of navigational and
safety aids, China’s rising importance as a global economic power was high-
lighted by China’s subtle shift from a coastal state perspective on transit through
international straits to that of a user state. Similarly, the growing importance of
South Korea in international trade was seen in the close interest in these delibera-
tions by the Korean agencies.
These trends provide an opportunity for the strengthening of international and
regional institutions. The 1982 United Nations Convention on the Law of the Sea
(UNCLOS) was cognizant of the interest of user states in unimpeded passage
through and over the straits used for international shipping. It limited the right of
the littoral states to regulate the passage of ships traversing the straits but recog-
nized the jurisdiction of the littoral states over illegal activities taking place within
their territorial waters. Article 43 of UNCLOS provided for burden-sharing agree-
ments between the littoral states and user states: ‘(a) in the establishment and
maintenance in a strait of necessary navigational and (b) safety aids and other
improvements in aid of international navigation; and for the prevention, reduction
and control of pollution from ships’.6
However, until recently, there was little movement towards implementing such
agreements. There is now an emerging awareness of the need for a new architec-
ture facilitating cooperative arrangements involving the littoral states as well as
user states. The groundwork has been laid by the Joint Statement of the forth
Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and
Singapore held in Batam in August 2005 and in the Statement on the
Enhancement of Safety, Security and Environmental Protection in the Straits of
18 Barry Desker
Malacca and Singapore agreed at the meeting convened by the IMO and the
Indonesian Government in Jakarta in September 2005. The Jakarta meeting
agreed that a mechanism be established to provide for regular meetings between
the littoral states, the user states, the shipping industry and others with an interest
in safe navigation through the straits. Such an inclusive process will strengthen
the commitment of user states to meet the costs of upgrading the capabilities of
the littoral states. It will also encourage the user states to ensure the provision of
safety and navigational aids and the establishment of state-of-the-art electronic
information systems. Over the longer term, the formation of a regional coordinat-
ing centre could be envisaged. The centre could help coordinate responses by
naval, coast guard and marine police capabilities operating in or traversing
through the straits in the event of acts of piracy or maritime terrorism. Such a
development would highlight two critical challenges facing the littoral states, user
states as well as the international shipping community. First, the need for greater
information and intelligence sharing between states as well as internally between
navies, coastguard, police and intelligence agencies. Too often, action against
transnational crime is hampered by the existence of a ‘stovepipe’ mentality
instead of a networked approach. Second, it would refocus attention on the provi-
sion of cutting edge safety and navigational aids in the Straits of Malacca and
Singapore. This is a critical need but has recently been overshadowed by the
emphasis on the risk of maritime terrorism.

Notes
1 G. de Vries, The European Council’s Counter-Terrorism Coordinator, as reported in
‘Militants a long-term threat in Malacca Strait: EU anti-terror chief’, Associated
Press Newswires, 2 February 2006. Also see ‘Malacca Strait declared a high risk zone
by joint war committee’, Lloyd’s List, 1 July 2005.
2 ‘Protection of vital shipping lanes’, C 93/ 5 – Note by the Secretary-General,
International Maritime Organization, 7 October 2004.
3 M. Q. Mejia Jr., ‘Defining maritime violence and maritime security’ in P. K.
Mukherjee, M. Q. Mejia Jr. and G. M. Gauci (eds) Maritime Violence and Other
Security Issues at Sea, Proceedings of the Symposium on Maritime Violence and
Other Security Issues at Sea, World Maritime University, Malmö, Sweden, 26–30
August 2002, pp. 27–38.
4 Ibid.
5 D. Urquhart, ‘Breakthrough in ensuring Malacca Straits security; three nations agree
to involve wider international community’, The Business Times Singapore, 3 August
2005.
6 Article 43 of 1982 UNCLOS. Available online at: <http://www.un.org/Depts/
los/convention_agreements/texts/unclos/part3.htm> (accessed 15 February 2006).
PART II

Challenges
3 The importance and security of
regional sea lanes
Joshua Ho

The rise of Asia


The emergence of China and India as new major global players is expected to
transform the regional geopolitical landscape. Fuelling this rise is the combina-
tion of high economic growth, expanding military capabilities, and large
populations. For example, the combined 2002 gross domestic products (GDP) of
China, India and Japan are already half that of the United States in nominal
terms.1 A study by the National Intelligence Council in the United States has fore-
casted that by 2015, the combined GDPs of China, India and Japan would surpass
that of the United States and the European Union at US$19.8 trillion, US$14 tril-
lion and US$11.6 trillion respectively in 1998 dollars.2 By 2050, Goldman Sachs
has projected that the situation will become even more astounding when the com-
bined GDPs of China, India and Japan will be slightly more than twice that of the
United States and about four times that of France, Germany, Italy, Russia and the
United Kingdom combined in 2003 dollars.3 In 2050, therefore, the largest
economies in the world will be China, United States and India respectively, with
Japan at a distant fourth. Because of the sheer size of China’s and India’s popula-
tions – projected by the US Census Bureau to be 1.4 billion and almost 1.3 billion
respectively by 2020 – their standard of living need not approach Western levels
for these countries to become important economic powers.
Besides China, India and Japan, the economies of other developing countries,
such as Indonesia, could also approach the economies of individual European
countries by 2020. Experts assess that over the course of the next decade and a
half, Indonesia may revert to a high growth of 6 – 7 per cent, which along with its
expected increase in its relatively large population from 226 to around 250 mil-
lion, would make it one of the largest developing economies.
The rise of these regional powers, a virtual certainty barring any unforeseen
reversals to the globalization process, means that dependence on the regional sea
lanes will increase. This is because countries in the region depend on the sea as a
medium of transportation and in particular, the sea lanes along Southeast Asia are
vital to the transportation of goods, energy and raw materials to the dynamic
economies of Northeast Asia.
22 Joshua Ho
Major sea lanes in Southeast Asia
The major sea lanes in Southeast Asia are constricted at key straits such as the
Malacca and Singapore Straits, the Sunda Strait and the Lombok Strait. The Strait
of Malacca is 600 miles long, is the main corridor between the Indian Ocean and
the South China Sea and is the major sea lane used by tankers from the Middle
East. About 26 tankers, including three fully loaded supertankers heading for
Asian ports, pass through the strait daily. Because the strait is relatively shallow,
being only 21.8 metres deep at some points, the maximum recommended draught
by the International Maritime Organization for passing ships is 19.8 metres. The
navigable channel at its narrowest point is only 1.5 miles wide. In terms of total
volume, more than 200 boats pass through the Strait of Malacca on a daily basis,
or about 63,000 on an annual basis, carrying 80 per cent of the oil transported to
Northeast Asia.4 In terms of value, the total tonnage carried by the Malacca Strait
amount to 525 million metric tonnes worth a total of US$390 billion.5 The amount
of traffic makes it the second busiest strait in the world currently and it is likely to
be even busier in the future as a result of increasing trade flows and energy
demands in Asia. According to Lloyd’s List bulletin, new orders for 200 liquefied
natural gas (LNG) carriers will be required to satisfy the growth in demand dur-
ing the next 15 years. The trend of increasing traffic has also been observed for
the traffic data as reported via the mandatory ship reporting system, STRAITREP
from 1999–2004, which indicates that traffic in the Malacca Strait has increased
by 45 per cent within the six-year period.6 Norwegian flagged ships accounted for
2.5 per cent of the tonnage through the strait which was carried by 231 ships,
making them the eleventh largest carrier. On the other hand, Norwegian owned
ships accounted for 3.6 per cent of the tonnage through the strait carried by 315
ships, which makes them the tenth largest carrier through the strait. The average
deadweight tonnage (DWT) for the Norwegian ships was about 57,000 DWT.
Singapore flagged ships accounted for 8.8 per cent of the total tonnage carried
through the straits by 580 ships, making them also the third largest carrier.
Singapore owned ships accounted for 8.6 per cent of the tonnage through the
straits, which was carried by 571 ships, making them the third largest carrier. The
average deadweight tonnage for the Singapore ships was about 26,000 DWT. 7
The Lombok Strait is wider, deeper and less congested than the Strait of
Malacca. The minimum passage width in the Lombok Strait is 11.5 miles and the
depths are greater than 150 metres. It is therefore considered the safest route for
supertankers and the bigger of these eastbound ships sometimes transit this chan-
nel. For example, tankers with draughts exceeding 19.8 metres have to divert
through the Lombok Strait due to the depth constraints of the Malacca Strait.
Most ships transiting the Lombok Strait also pass through the Makassar Strait,
which has an available width of 11 miles and a length of 600 miles. About 418
ships transit the Lombok Strait annually and the total tonnage carried by the
Lombok Strait amounts to 36 million metric tonnes.8 Ships carrying iron ore from
Australia to China also enter the Indonesian archipelago through the Lombok
Strait. Norwegian flagged ships accounted for 2.9 per cent of the tonnage through
The importance and security of regional sea lanes 23
70,000 62,334 63,636
59,314 60,034
60,000 55,957
Number of ships

50,000 43,965

40,000
30,000
20,000

10,000
0
1999 2000 2001 2002 2003 2004
Year

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

the Lombok Strait carried by four ships, making them the eleventh largest carrier
and Norwegian owned ships accounted for 4.6 per cent of the tonnage through the
Lombok Strait carried by 11 ships, making them the sixth largest carrier. Most of
these ships appear to be ultra large crude carriers (ULCCs) as the average dead-
weight tonnage of these ships was about 215,000 DWT. On the other hand,
Singapore flagged ships accounted for 6 per cent of the total tonnage through the
Lombok Strait carried by 27 ships, making them the fifth largest carrier, whilst
Singapore owned ships accounted for 6.3 per cent of the total tonnage through the
Lombok Strait carried by 26 ships, making them the fourth largest carrier. The
average deadweight tonnage of these ships was about 35,000 DWT.9
The last of the three straits is the Sunda Strait. It is 50 miles long and is
another alternative to the Malacca Strait. Its north-eastern entrance is 15 miles
wide, but because of its strong currents and limited depth, deep draught ships of
over 100,000 deadweight tonnes do not transit the strait and it is not as heavily
used. About 2,300 ships transit the Sunda Strait annually and the total tonnage
carried by the Sunda Strait is 111 million metric tonnes.10 Norwegian flagged
ships accounted for 3 per cent of the total tonnage through the Sunda Strait, car-
ried by 30 ships, making them the tenth largest carrier, and Norwegian owners
accounted for 5.3 per cent of the total tonnage through the Sunda Strait, carried
by 45 ships, making them the seventh largest carrier. The average deadweight
tonnage of these ships was 90,000 DWT. Singapore flagged ships accounted for
6.2 per cent of the total tonnage through the Sunda Strait, carried by 71 ships,
making them the fifth largest carrier, whilst Singapore owners accounted for 7.5
per cent of the total tonnage through the Sunda Strait, carried by 73 ships, mak-
ing them the fourth largest carrier. The average deadweight tonnage of these
ships was 50,000 DWT.11
Besides the transportation of oil and iron ore to the major economies in
Northeast Asia – China, Japan, Taiwan and South Korea – the Malacca Strait and
the Sunda Strait also carry a significant amount of container traffic given that
large ports sit astride both these sea lanes. The ports that lie along the Malacca
and Singapore Straits include Singapore, Port Klang and Tanjung Pelepas. The
24 Joshua Ho
Table 3.1 Breakdown of Norwegian and Singapore ships that transit the Malacca,
Lombok and Sunda Straits (by flag state)

Malacca and Singapore Straits


Norwegian Singapore All ships
flagged ships flagged ships
Tonnage carried 74,544,908 263,861,059 2,988,761,500
Proportion of
total tonnage 2.5% 8.8% 100.0%
Average DWT 56,091 26,336 39,581
No. of passages 1,329 10,019 75,510
No. of different ships 231 580 8,678
Lombok Strait
Tonnage
carried 1,072,606 2,189,032 36,663,855
Proportion of
total tonnage 2.9% 6.0% 100.0%
Average DWT 214,521 32,672 60,702
No. of passages 5 67 604
No. of different ships 4 27 418
Sunda Strait
Tonnage carried 3,343,149 43,947 111,127,598
Proportion of
total tonnage 3.0% 6.2% 100.0%
Average DWT 85,722 43,947 48,783
No. of passages 39 157 1,320
No. of different ships 30 71 2,278
Source: Study on passage through the Straits of Malacca and Singapore, 2001, Japan Maritime
Research Institute, March 2002

fourth port, Tanjung Priok, is situated on the Sunda Strait. In addition, Singapore
is a major transhipment hub located along the east–west main route within the
global hub and spoke container network. To give an idea of how much container
traffic was handled at each port, based on year 2004 data, Singapore was the sec-
ond largest container port in the world, handling 20.6 million 20-foot equivalent
units (TEUs), Port Klang was the thirteenth largest container port in the world,
handling 5.2 million TEUs, Tanjung Pelepas was the sixteenth largest container
port in the world, handling 4 million TEUs and Tanjung Priok was the twenty-
third largest container port in the world, handling 3.3 million TEUs.12
Because the Malacca, Lombok and Sunda Straits are so important to the trans-
portation of oil and raw material, such as iron ore, as well as for the conveyance of
container traffic, the free and safe navigation of commercial vessels in these sea
lanes has become an important issue. In this respect piracy and terrorism are
major threats to the security of shipping in the sea lanes of Southeast Asia. Of the
three straits, the Malacca and Singapore Straits are by far the most important and
the following analysis is focused solely on the Malacca and Singapore Straits.
The importance and security of regional sea lanes 25
Table 3.2 Breakdown of Norwegian and Singapore ships that transit the Malacca,
Lombok and Sunda Straits (by shipowner nationality)

Malacca and Singapore Straits


Norwegian Singapore All ships
owned ships owned ships
Tonnage carried 108,907,101 258,487,942 2,988,761,500
Proportion of
total tonnage 3.6% 8.6% 100.0%
Average DWT 57,109 26,245 39,581
No. of passages 1,907 9,849 75,510
No. of different ships 315 571 8,678
Lombok Strait
Tonnage carried 1,635,892 2,236,723 36,663,855
Proportion of
Total tonnage 4.6% 6.3% 100.0%
Average DWT 136,324 36,668 60,702
No. of passages 12 61 604
No. of different ships 11 26 418
Sunda Strait
Tonnage carried 5,923,665 8,334,465 111,127,598
Proportion of
total tonnage 5.3% 7.5% 100.0%
Average DWT 91,133 51,132 48,783
No. of passages 65 163 1,320
No. of different ships 45 73 2,278
Source: Study on passage through the Straits of Malacca and Singapore, 2001, Japan Maritime
Research Institute, March 2002

Piracy and armed robbery


According to the International Chamber of Commerce’s International Maritime
Bureau (IMB), the number of piracy and armed robbery attacks on shipping
throughout the world in 2004 was 325.13 This represents a significant drop in
the number of attacks from the previous year of 445 in 2003, but is still the fifth
highest rate since data was collected in 1992. The highest number of incidents
of piracy occurred in 2000 when 469 incidents were reported throughout the
world. Despite the drop in worldwide pirate or armed robbery attacks in 2004,
attacks in the Malacca and Singapore Straits continued unabated and remained
at a high level of 41 incidents for the period 2003–4. However, the trend seems
to have reversed somewhat in 2005. The number of attacks in 2005 has dropped
significantly as compared to the same period in 2004. The drop can be attrib-
uted to the measures that have been taken by the littoral states adjoining the
Malacca and Singapore Straits and also due to the peace process that has been
unfolding in Aceh. The devastating tsunami that unleashed itself on Boxing Day
of 2004 could also have reduced the capacity of the pirates to commit armed
robbery.
26 Joshua Ho
120 Actual
107
100 Attempted
No. of attacks
80 Total
69
63
56
60 51
43 41 41
40 35
26 26 28
22 19
17
20 9 10 9
0
2000 2001 2002 2003 2004 2005
Year

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

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

Maritime terrorism
Besides piracy, another threat to resource and trade security is the spectre of mar-
itime terrorism. In the new era of globalization, ports have evolved from being
traditional interfaces between sea and land to providers of complete logistics net-
works brought about chiefly by containerization. Containerization has made it
possible for the carriers to shift from a port-to-port focus to a door-to-door focus
enabled by intermodalism (the interchangeability of the various modes of trans-
porting the container by road, rail or sea) whereby goods move from the point of
production, without being opened, until they reach the point of sale or final desti-
nation. As a result of ports being providers of complete logistics networks,
high-volume, mainline trade will focus on just a few mega ports, making these
ports the critical nodes of global seaborne trade.15
So important are hub ports in the global trading system that it has been esti-
mated that the global economic impact from a closure of the hub port of
The importance and security of regional sea lanes 27
Singapore alone could easily exceed US$200 billion per year from disruptions to
inventory and production cycles. Hub ports therefore are potential lucrative tar-
gets for terrorists. A few scenarios that have been painted include the hijacking of
carriers of liquefied petroleum gas and turning them into floating bombs to dis-
able ports, as well as the detonation of a ‘dirty bomb’ in a hub port.16
Besides attacks on hub ports, attacks on shipping can also be an attractive
option for maritime terrorists. If attacks on shipping become severe, it is possible
that ships may choose to divert from the current sea lanes to a safer route. The
diversion could also impose costs to the industry. A study done by the US
National Defence University has concluded that if the Lombok, Malacca,
Makassar, Sunda Straits and the South China Sea were blocked and all the ships
were to divert around Australia, the extra steaming costs would account for US$8
billion dollars a year based on 1993 trade flows.17 No doubt, the cost will be even
higher if current trade flows were used for the cost estimate.
Despite the scary scenarios that have been painted and the possibility of mar-
itime terrorism taking place, current signs are that Southeast Asian terrorists have
not moved beyond the conduct of ferry bombings and the use of bomb-laden
small boats as weapons as in the Limburg and USS Cole incidents. The possibility
of maritime attacks occurring in the Malacca and Singapore Straits is assessed to
be low at the moment. For example, there is no indication that the Jemaah
Islamiyah (JI) is planning any attacks in the maritime domain. As their leaders
continue to be arrested and as their operations become even more heavily cur-
tailed due to police action in Indonesia, it is unlikely that JI and their members
have been able to move up the value chain in terms of sophistication in the con-
duct of attacks as they have had to continually train new members. As a result, it
is likely that they will stick with what they are familiar with – the conduct of land
attacks with improvised home-made bombs – and recent attacks in Indonesia have
vindicated this. The other group known to conduct maritime attacks is the Abu
Sayyaf group in the Philippines, but attacks there have been largely confined to
ferry bombings and limited to the Philippine archipelago. The Abu Sayyaf group
has also been under pressure as Philippine and American troops have continued to
harass their bases in Mindanao.

National countermeasures
Being cognisant of the threats, all the three littoral straits that line the strategic
waterways have already taken steps to address the threats of piracy and maritime
terrorism. This has mainly been in the upgrading of patrol assets, increasing sur-
veillance of the affected areas through radar and the deployment of ships, the
build-up of specially trained and dedicated assets that can respond to incidents, as
well as compliance with international measures such as the International Ship and
Port Facility Security (ISPS) Code. The Indonesian Navy (TNI-AL) has, for
example, moved to upgrade its patrol platforms, increase its patrols, and set up
Navy Control Command Centres in the affected areas, such as in Batam and
Belawan. The TNI-AL also operate the communications frequencies and hotlines
28 Joshua Ho
that have been made available to the shipping community to contact in response to
a pirate incident and placed special forces that can respond immediately to hijack-
ings.18 There are also plans by the Indonesians to install a chain of radar stations
along the Sumatran coast. This will complement the radar stations that the
Malaysians and Singaporeans have along their respective coastlines as well.
In addition to the hard measures adopted, the Indonesian Ministry of Home
Affairs has also undertaken programmes to alleviate poverty and increase the peo-
ple’s welfare in the remote areas. In particular, the six regencies of Rokan, Hilir,
Bengkalis, Siak, Palawan, Indragiri Ilir and Karimun that border the Malacca and
Singapore Straits are currently the main priority areas. The next priority is then
given to the tens of regencies that border the other sea lanes of communication
(SLOCs) through Indonesia.19
Malaysia of course has increased its surveillance through its string of radar sta-
tions, as well as increased its presence in the affected areas by intensifying
training activities there to act as a deterrent. In addition, troops have been sta-
tioned on remote islands in the straits which may become havens for pirates.20
Malaysia has also set up a dedicated anti-piracy task force to deal with the issue
and will deploy assault weapons on the softer targets like tugs and barges.21 One
important measure adopted by the Malaysians is the formation of the Malaysian
Maritime Enforcement Agency (MMEA), the equivalent of a coast guard, which
began operations on 30 November 2005. The MMEA brings together several
existing maritime enforcement agencies such as the Royal Malaysian Navy, the
Royal Malaysian Marine Police, the Fisheries Department, the Customs and
Excise Department, and the Marine Departments. The consolidation of maritime
related agencies into a single command of the MMEA will enable more focus and
enhance the ability to deal with maritime related offences. 22
Singapore has also implemented a range of measures to step up maritime secu-
rity. These include an integrated surveillance and information network for
tracking and investigating suspicious movements, intensified navy and coast-
guard patrols, random escorts of high-value merchant vessels plying the
Singapore Strait and adjacent waters, and the re-designation of shipping routes to
minimize the convergence of small craft with high-risk merchant vessels.23 In
addition, Singapore has also formed the Accompanying Sea Security Teams
(ASSeT), similar to armed marshals, to board selected merchant ships proceeding
into and out of the harbour to prevent the possibility of a ship being taken over by
terrorists.24 More importantly, Singapore has gone beyond the requirements of the
ISPS code or the requirement of the automatic identification system (AIS) regime
by introducing a harbour transponder system known as HARTS, which will track
the location of vessels of less than 300 gross tonnes within its port limits. Most of
the fishing vessels, pleasure crafts, ferries, and speedboats fall within this ton-
nage category and there are currently no international agreements that mandate
the tracking of vessels in this weight class even though the most likely modus
operandi for terrorists conducting a maritime attack will be the use of a small
bomb-laden boat.
The importance and security of regional sea lanes 29
Bilateral countermeasures
Besides individual measures, there have been efforts at bilateral cooperation
based on a web approach. Indonesia and Singapore agreed in 1992 to establish the
Indonesia–Singapore Coordinated Patrols in the Singapore Strait. This has
involved the setting up of direct communication links between their navies and
the organization of coordinated patrols every three months in the Singapore
Straits.25 Singapore and Indonesia have announced the setting up of a joint sur-
veillance system, known as Project SURPIC that covers the Singapore Straits.26
Indonesia and Malaysia also decided in 1992 to establish a Maritime Operation
Planning Team to coordinate patrols in the Straits of Malacca. The
Malaysia–Indonesia Coordinated Patrols are done four times a year, and so is the
Malaysia–Indonesia Maritime Operational Coordinated Patrol, which is con-
ducted together with other maritime institutions, such as customs, search and
rescue, and police from the two countries.27
Besides the three littoral states, other countries are also beginning to get
involved in the security of the Malacca Strait. For example, since September
2004, the Indian and Indonesian Navies have begun joint patrols of the Six
Degree Channel, the waterway just west of the Strait of Malacca, which lies
between Indonesia’s Sabang Island and the coast of Aceh in Sumatra and India’s
Nicobar Islands. All international shipping entering or leaving the Malacca Strait
normally transit the Six Degree Channel.28 Malaysia and Thailand have publicly
increased the intensity of their cooperative maritime patrols in the northern por-
tion of the Strait of Malacca due to concerns regarding arms smuggling,
insurgents and terrorists operating in the area in September 2003.29 The US has
also conducted anti-piracy exercises with Indonesia, which has involved the
boarding and inspection of shipping with the exercise being called Crisis Action
Planning SMEE 05–03.30 China too is determined to get into the act as she signed
a strategic partnership agreement with Indonesia in May 2005, with one of the
items being possible increased maritime cooperation to combat smuggling and
piracy.31

Multilateral countermeasures
Malacca Strait Coordinated Patrols
In comparison to the bilateral cooperation that exists in Southeast Asia, the mul-
tilateral response to piracy and maritime terrorism has been more limited and
only starting to take shape. Although many multilateral forums exist, such as the
Asia-Pacific Economic Cooperation (APEC), the Association of Southeast Asian
Nations (ASEAN), the ASEAN Regional Forum (ARF) and ASEAN Plus Three,
very few concrete operational measures have actually materialized from these
high-level forums to deal with maritime security. The most concrete of the mea-
sures have been the trilateral Malacca Strait Coordinated Patrols (Operation
MALSINDO) conducted by the three littoral straits of Indonesia, Malaysia and
Singapore since July 2004. Currently, 17 ships have been allocated to the patrols:
30 Joshua Ho
seven from Indonesia; five from Malaysia; and five from Singapore. The first tri-
lateral naval patrols were launched in July 2004 and are aimed at reducing piracy
and smuggling activities in the straits on a 24/7 basis with each country conduct-
ing the patrols within its own territorial waters. Besides round-the-clock naval
patrols, coordination between the navies of the three countries has also improved
as a result of the operation. A hotline linking the three naval command centres in
Batam, Lumut and Changi has been set up which will allow each country to hand
over to another the pursuit of pirates who cross borders on a 24-hour basis. In
addition, merchant vessels have also been given radio frequencies used by the
naval vessels in the area to allow them to call for help directly on the ground
when required.

‘Eyes in the Sky’ initiative


Another initiative that has taken place is the ‘Eyes in the Sky’ (EiS) initiative
mooted by the Malaysians. Launched in September 2005, the initiative augments
MALSINDO and involves the conduct of maritime air patrols in the Malacca
Strait by the three littoral countries and Thailand. The participating countries each
contribute two maritime patrol aircraft (MPA) sorties per week for the EiS and
each MPA is allowed to fly above the waters of the states in question no less than
three nautical miles from land. Each aircraft also has a Combined Maritime Patrol
Team (CMPT) on board, comprising a military officer from each of the partici-
pating states. As a team, the CMPT establishes a comprehensive surface picture
over the patrol area and broadcasts any suspicious contacts on designated radio
frequencies to ground-based agencies – called the Monitoring and Action
Agencies (MAAs) – established in each of the participating countries. Depending
on whose territorial waters the incident takes place in, the respective MAAs will
have to activate the patrol assets within their existing national decision-making
structures to undertake the required follow-on actions. So far, the EiS is still in its
first phase with the four countries as the principal operators of the MPA flights.
Under Phase II, extra-regional countries will be invited to participate in the MPA
surveillance flights as well.

The Information Sharing Centre


Another multilateral measure is the proposed setting up of the Information
Sharing Centre as part of ReCAAP (the Regional Cooperation Agreement on
Combating Piracy and Armed Robbery against Ships in Asia). ReCAAP is an
organization comprising the ASEAN states, the Northeast Asian trio of China,
Japan and South Korea, and the South Asian trio of Bangladesh, India and Sri
Lanka. At a Tokyo meeting on 11 November 2004, the ReCAAP nations agreed
to the setting up of an Information Sharing Centre in Singapore.32 The
Information Sharing Centre will have a full-time multinational staff to maintain
a database for piracy related information and facilitate communication between
national agencies prosecuting piracy cases. So far, the 14 countries of
The importance and security of regional sea lanes 31
Bangladesh, Brunei, Cambodia, China, India, Japan, Laos, Myanmar, the
Philippines, Singapore, South Korea, Sri Lanka, Thailand and Vietnam have
signed the agreement. Eight countries have ratified the agreement with Brunei,
India and Sri Lanka awaiting ratification. Although both Malaysia and
Indonesia have expressed support, they have not signed up to the agreement as
yet. The information sharing centre became operational on 29 November 2006.
In terms of governance and operations, the Information Sharing Centre is
composed of the governing council and secretariat. The governing council will
comprise one representative from each of the participating nations and will
make policies concerning all matters of the centre. The secretariat on the other
hand is headed by an executive director chosen by the governing council, who is
responsible for the administrative, operational and financial matters of the cen-
tre. The setting up of the Information Sharing Centre is important, as it will
bring critical analysis to bear on the issue of piracy with data gathered from the
governmental agencies themselves, which will augment the data that is received
from the IMB.

Conclusion
The Asia-Pacific century looks set to be established with China, India and Japan
leading the pack. Fuelling the Asia-Pacific engine will be the continued economic
growth of China as well as those of India, Japan and the United States. As a by-
product and because of regional economic growth, trade flows into and within the
Asia-Pacific and the demand for energy in the region will increase, both of which
mean an increasing reliance on the sea as a mode of transport.
This surge in the use of the sea as a mode of transport means that the security
and the safeguarding of the sea lanes will become more crucial than ever. Hence,
besides national measures, there is a need to move towards a more cooperative
regime between both the littoral states as well as other stakeholders to enhance the
security of the sea lanes as the threats are transnational in nature. An act of armed
robbery that occurred at the end of February 2005 demonstrated the transnational
character of the threat to shipping in the sea lanes. The incident occurred in
Malaysian waters and involved a Japanese tug, where the Japanese crew were
taken as hostages. Perpetrators from Indonesia were suspected to be responsible
for the incident. The hostages were finally released in the vicinity of Southern
Thailand after the Japanese owners paid the ransom.
Having said that, the perception that the Malacca and Singapore Straits is a
dangerous place has largely been attributed to a few high profile cases, such as
the incident involving the Japanese tug, which has blown the security issue out of
all proportion compared to the actual situation on the ground. For instance, the
total number of piracy attacks that happened in the Malacca Strait in 2004 was 45
and accounted for only 0.07 per cent of the total number of ships transiting the
strait that year. As this figure also takes into consideration those attacks that occur
in port, the number of attacks to ships on transit in the main sea lane is even lower
at about one-third of the figure above. The proportions of ships that have been
32 Joshua Ho
attacked in the strait have ranged from 0.06 to 0.19 per cent for the period 2000 to
2004. Hence, despite the concerns over the security of shipping in the region, it is
still very safe to sail in this part of the world. The recognition by the littoral states
of international concerns and the measures that have been taken so far at the
national, bilateral and multilateral levels will make the sea lanes even safer for
international shipping well into the future.

Notes
1 The 2002 GDPs of the United States, China, Japan, and India are US$11,145 billion,
US$1,299 billion, US$3,986 billion and US$501 billion respectively in nominal
terms. See ‘Country Report: United States of America’, Economist Intelligence Unit,
November 2003, p. 5; ‘Country Forecast: China’, Economist Intelligence Unit,
November 2003, p. 11; ‘Country Forecast: Japan’, Economist Intelligence Unit,
November 2003, p. 12; and ‘Country Forecast: India’, Economist Intelligence Unit,
November 2003, p. 12.
2 National Intelligence Council, Global Trends 2015: A Dialogue About the Future with
Nongovernment Experts, Washington D.C.: National Intelligence Council
Publication, December 2000, pp. 34–8.
3 The forecasted 2050 GDPs of China, United States, India, and Japan, are US$45
billion, US$35 billion, US$27 billion and US$7 billion respectively in 2003 dollars.
See D. Wilson and R. Purushothaman, ‘Dreaming with BRICs: The Path to 2050’,
Goldman Sachs Global Economics Paper No. 99, 1 October 2003, p. 4.
4 J. J. Brandon, ‘Piracy on high seas is big business’, International Herald Tribune, 28
December 2000.
5 S. Kawamura, ‘Shipping and regional trade: regional security interests’, in S.
Bateman and S. Bates (eds) Shipping and Regional Security, Canberra: Strategic and
Defence Studies Centre, The Australian National University, 1998, p. 15.
6 Captain A. Othman, Deputy Director General, Peninsula Malaysia Marine
Department, ‘Sailing the straits – safety, security, convenience’, Paper presented at
World Maritime Forum 2004, Kuala Lumpur, 2–3 August 2004.
7 Japan Maritime Research Institute, ‘Study on Passage through the Straits of Malacca
and Singapore, 2001’, JMRI Study, 8–11 March 2002.
8 Ibid., pp. 19–21.
9 Ibid.
10 Ibid, pp. 16–18.
11 Ibid.
12 J. R. C. Boyes and J. Degerlund, ‘Rising to the top’, Containerisation International,
March 2005, p. 77.
13 ICC International Maritime Bureau, ‘Piracy and Armed Robbery against Ships
Annual Report: 1 January–31 December 2004’, 4–11 January 2005.
14 A. J. Young and M.J. Valencia, ‘Conflation of piracy and terrorism in Southeast Asia:
rectitude and utility’, Contemporary Southeast Asia vol. 25, no. 2, August 2003, 270–4.
15 Flynn has identified the world’s shipping mega ports as Long Beach, Los Angeles,
Hong Kong, Singapore, Hamburg, Antwerp, and Rotterdam. See S. E. Flynn,
‘America the vulnerable’, Foreign Affairs, January/February 2002, 60–74.
16 M. Richardson, A Time Bomb for Global Trade: Maritime Related Terrorism in an Age
of Weapons of Mass Destruction, Singapore: Institute of Southeast Asian Studies,
2004, pp. 112–4.
17 D. Y. Coulter, ‘Globalization of maritime commerce: the rise of hub ports’, in S. J.
Tangredi (ed.) Globalization and Maritime Power, Washington DC: National Defense
University Press, 2002, p. 139.
The importance and security of regional sea lanes 33
18 Admiral B. K. Sondakh, ‘National sovereignty and security in the Strait of Malacca’,
Paper presented at conference on The Straits of Malacca: Building a Comprehensive
Security Environment, Maritime Institute of Malaysia, Kuala Lumpur, 11–13 October
2004, pp. 8–10.
19 R. Magindaan, ‘Maritime terrorism threat: an Indonesian perspective’, Paper
presented at Observer Research Foundation Workshop on Maritime Counter
Terrorism, 29–30 November 2004, p. 3.
20 Admiral Dato’ Sri Mohd Anwar bin HJ Mohd Nor, Chief of Navy, Royal Malaysian
Navy, ‘Malaysia’s Approach’, Presentation at ARF Regional Cooperation in Maritime
Security Conference, 2–4 March 2005.
21 ‘Malaysia to deploy armed police on tugs and barges’, Lloyd’s List, 4 April 2005.
22 L. Lau, ‘Malaysia’s new guardians of the sea’, The Sunday Times @ The Straits Times
Interactive, 15 May 2005.
23 R. Scott, ‘IMDEX: Singapore stresses counters to maritime terrorism’, Jane’s
Defence Weekly, 1 November 2003.
24 C. L. Goh, ‘Armed navy escorts for suspect ships’, The Straits Times Interactive, 28
February 2005.
25 R. Go, ‘Singapore Strait patrols keep pirates at bay’, The Straits Times Interactive, 16
May 2002.
26 ‘Radar to monitor S’pore Strait: Indonesia, S’pore co-effort to boost waterways
security, prevent pirate attacks’, Today, 27 May 2005. Available online at
<http://www.todayonline.com> (accessed 27 May 2005).
27 Sondakh, ‘National sovereignty and security in the Strait of Malacca’, p. 11.
28 D. Berlin, ‘Navy reflects India’s strategic ambitions’, Asia Times Online, 6 November
2004. Available online at: <http://www.atimes.com/atimes /South_ Asia/
FK06Df05.html> (accessed 17 May 2005).
29 ‘Malaysia and Thailand to boost maritime border crime watch’, Agence France-
Presse, 10 September 2003. Available online at: <http://quickstart.clari. net/qs_se
/webnews/wed/bl/Qmalaysia-thailand-crime.RtY8_DSA.html> (accessed 17 May
2005).
30 ‘TNI starts anti-piracy exercise with US military’, Gatra, 2 May 2005. Available
online at: <http://www.gatra.com/2005–05–02/artikel.php?id=84037> (accessed 9
May 2005).
31 ‘China and Indonesia seal strategic pact’, International Herald Tribune, 26 April
2005. Available online at: <http://www.iht.com/articles /2005 /04/25/news/
indonesia.php> (accessed 9 May 2005).
32 ‘Asian nations band to fight piracy’, The Straits Times Interactive, 13 November
2004.
4 The regional dimension of
territorial and maritime disputes in
Southeast Asia
Actors, disagreements and dynamics
W. Lawrence S. Prabhakar

Territorial disputes and maritime disputes – issues


Southeast Asia is characterized by a salient maritime and archipelagic geographi-
cal profile of historical significance. The waterways of Southeast Asia have been
historically prominent for various reasons of mercantile trade, cultural transmis-
sion, naval expeditions and challenges such as piracy. The states of Southeast Asia
– Cambodia, Indonesia, Malaysia, Myanmar, the Philippines, Singapore,
Thailand and Vietnam – have been characterized as archipelagic states as the seas
have interwoven with the land territorial entities.
Southeast Asia has its share of border and boundary conflicts and disputes.
These are characteristically low in intensity conflicts and have always remained in
the spectrum of limited and localized disputes. Southeast Asian conflicts have
been largely in the political–diplomatic realm and hence they are more disputes
than escalating conflicts. The exception to this was the Vietnamese invasion of
Cambodia in 1978 that involved substantial military force. This was rebutted by
the Chinese invasion of Vietnam in 1979, which was a limited war fought for,
among other reasons, territorial settlement.
Colonialism has been a dominant force in the region for nearly 300 years. With
the exception of Thailand, the other states of Southeast Asia were all colonized –
Malaysia, Myanmar and Singapore under British colonial domination, Cambodia
and Vietnam under French Colonial rule, Indonesia under Dutch colonial control,
and the Philippines under Spanish colonialism and later American domain.
The universal colonial rule experience has always shown that the issue of terri-
torial disputes in terms of border and boundary demarcations are consequential
due to the arbitrary colonial demarcation. Colonial rule in Southeast Asia had its
territorial disputes and conflicts but none led to violent conflict with the excessive
use of military force.
The end of colonial rule was hastened by the emerging global bipolar order
and the resurgence of Third World nationalism. Colonial rule ended in the late
1960s with the exit of the British, Dutch and French colonial regimes.
Colonialism has had a pertinent impact on the region, with one example being the
dispute over Sabah that has triggered tensions between Malaysia and the
Philippines, as well as between Indonesia and Malaysia. It was consequential of
Territorial and maritime disputes in Southeast Asia 35
the British decision to grant political independence to Brunei, British North
Borneo and Singapore that had resulted in the territorial expansion of the Malay
Federation in 1963.
The second stage in Southeast Asia’s regional territorial disputes dimension
was ushered in with the emergence of the bipolar global order. The competitive
bipolar rivalries created the ideological overlay in the region as the forces of
global liberal–democratic capitalism of the United States-led West contended
with the global communism of Soviet and Chinese communism. The post Second
World War territorial demarcations in Korea (38th parallel latitude) and Vietnam
(17th parallel latitude) determined the contours and brink lines of the bipolar
struggle in the region.
The Cold War years saw the erection of competitive regional military alliances,
the forward presence of forces and an escalating war in the region. The regional
wars of the Cold War in Korea and Vietnam, however, had its cementing effects on
Southeast Asian unity, initially under the Southeast Asian Treaty Organization
(SEATO) and then under the economic manifestation of regional unity – the
Association of Southeast Asian Nations (ASEAN).
The Cold War era disputes signified the quest for ideological dominance and
secondary importance to issues of territorial salience. It signified a subdued pri-
ority to interstate territorial and maritime disputes, owing to the prevalence of a
dominant communist threat. Although Indonesia, Malaysia, Singapore and
Thailand had their prevalent disputes, the imminence of the Soviet–Chinese com-
munist threat led to their cooperative efforts in economic development behind the
US military umbrella in the region.
The Cold War rivalries between the Soviet Union and the US in the 1960s and
the 1970s had spurned several regional conflicts. These regional disputes intensi-
fied into border skirmishes and were localized in territorial disputes between
Cambodia and Vietnam, Thailand and Vietnam, and Laos and Thailand. The US
involvement in Vietnam was the primary context of the escalation of these dis-
putes into fully fledged conflicts. However as long as US presence was in
Vietnam, the Chinese and Vietnamese cooperated in burying their border disputes
to fight against American hegemony.
The third stage in the regional territorial disputes evolution was the post-US exit
from Vietnam and the consolidation of ASEAN as a viable regional economic entity
that began to address the issues of territorial disputes and conflicts. ASEAN
approached the various disputes through conflict management, with an emphasis on
the processes of conflict avoidance, prevention and eventual conflict resolution.1
Maritime disputes in the region have been persistent and have always emerged
as regional conflicts in the political diplomatic realm.

Overview of territorial and maritime disputes in Southeast Asia


The territorial and maritime disputes in the region are as follows: a)
Vietnam–Cambodia border and maritime disputes; b) Vietnam–China maritime
dispute (South China Sea); c) Vietnam–Philippines maritime dispute (Spratly
36 W. Lawrence S. Prabhakar
Islands); d) Thailand–Cambodia border and maritime disputes; e)
Thailand–Myanmar border dispute; f) Thailand–Laos border dispute; g)
Thailand–Malaysia border dispute; h) Indonesia–Malaysia border and maritime
disputes (islands of Ligitan and Sipadan); i) Malaysia–China maritime dispute
(Spratly Islands); j) Philippines–Malaysia border and maritime disputes (Sabah);
k) Philippines–China maritime dispute (Spratly Islands); l) Singapore–Malaysia
sovereignty contention and maritime ownership of Pedra Branca/Pulau Batu
Putih.2
The causal factors for these disputes and their continued momentum can be
located in the following issues.

Sovereignty concerns
Sovereignty and the apprehension of sovereignty violations by contending states
both regional and extra-regional is a dominant factor in the region. Sovereignty
concerns are derivative of the historical and colonial factors that have shaped
national identities and resistance to external domination. Territorial and maritime
disputes and contentions over unresolved border and boundary issues have been
vital aspects of the assertion of national sovereignty.
Assertion over islands and maritime boundaries have gained importance, given
new territorial demarcations in the post-colonial period and the subsequent changes
with the Third United Nations Convention on the Law of the Sea (UNCLOS III).
Southeast Asia’s colonial past, memories of the Japanese invasion and the con-
temporary context of UNCLOS III provide the scope of contestation for states to
claim rights and assert legal jurisdiction. Flying the flag over islands and chal-
lenging the movement of foreign vessels through their waters are viewed with
sensitivity and the apprehension of a threat.3
Regional responses to territorial disputes have been in the form of the modern-
ization of naval and air forces, viewed as viable instruments to secure the islands
and protect the maritime areas.4 Indonesia’s objection to foreign naval vessels
transiting its waters and Malaysia’s objections to the US Regional Maritime
Security Initiative could be explained in the context of sovereignty concerns.

National identity
National identity is yet another factor that provides for the basis of territorial
integrity and sovereignty. National identity provides the basis for the material
aspects of the territory and reinforces the identity of the people living in the terri-
tory.5 Identity factors are historically driven. Indonesia’s national identity
considers the idea of Wawasan Nusantara or the ‘archipelagic outlook’ that
defines all Indonesian territory of islands and seas in between as one indivisible
entity.6 Identity factors reinforce sovereignty concerns and constitute powerful
constituencies in the domestic realm of states.
The South China Sea is an important national identity issue for China. The
‘recovery’ of the area for the Chinese leaders provides a means to erase a century
Territorial and maritime disputes in Southeast Asia 37
of national humiliation of colonialism and ‘unjust treaties’ that China was sub-
jected to.7 China views the issue as a part of its domestic issue. The Law of the
People’s Republic of China on the Territorial Waters and Contiguous Areas was
hence passed by the National People’s Assembly as a means to recover the area to
Chinese suzerainty.
Under the law, China reiterated her claims in the South China Sea and stipu-
lated the right to use force to protect the Spratly Islands and their surrounding
waters. The law questioned the peaceful management of the territorial dispute and
was regarded by ASEAN as a political provocation. The People’s Liberation Army
(PLA) tends to view the South China Sea as a domestic issue – a derivative of
China’s national identity.8

Resources management
Resources and territorial disputes are a vital factor that has contributed to the
intensity of territorial and maritime disputes in the region. Southeast Asian
economies have been resilient and have managed to sustain growth amidst the
Asian financial crisis. Energy resources and mineral resources have been abundant
in the region. Brunei, Cambodia, Indonesia, Malaysia and Thailand are known for
their abundance in resources. Economic growth and development of the region
have led to the sharing of these resources in an amicable way, thanks to the institu-
tionalized cooperation under ASEAN. However, resources have become an issue
of contention at the low intensity level manifested as disputes and disagreements.
The South China Sea contention has been overlapping over the issue of the stakes
of the Spratly and Paracel Islands among the Southeast Asian states vis-à-vis China.
The South China Sea is rich in sea-bed minerals, oil and natural gas. Besides, it is
also one of the richest fishing grounds in the region providing for nutrition to the
region and a rich export potential of the region’s seafood. The convergence of the
critical sea lanes of communication (SLOCs) that run through this region funnelling
into the Strait of Malacca from the Middle East and Indian Ocean into Northeast
Asia and the Far East has given this resource rich region its stakes of contention.
Resources and energy flows are an issue in terms of the sea lanes that funnel
into the region. China and Japan are critically dependent on the huge trade of
imports of energy resources, food and mineral resources from the Indian Ocean
region and the two-way trade that passes through the region. Hence the freedom of
navigation through the Strait of Malacca, the Sunda Strait and the Lombok Strait
has been regarded as vital for sea lifelines. The security of sea lanes is vital in the
context of imported resources and the exploitation of resources in the region.

Arms build-up dynamics in Southeast Asia:


trends in naval arms dynamics
The dynamics of arms build up in Southeast Asia has been an issue of debate and
analysis. Given the relatively less acrimonious bilateral and multilateral relations
in the region, it has been a subject of interest and debate as to why the Southeast
38 W. Lawrence S. Prabhakar
Asian nations went for an intense arms build-up, particularly the naval arms, in
the 1980s and the 1990s. The preference for a naval arms build-up obviously sug-
gests that the nations in the region have strong maritime interests. The rationale
has been to build conventional naval forces that would reinforce deterrence, while
pursuing political diplomatic means to resolve the disputes.
The arms build-up in the 1980s and the 1990s was the consequence of the mil-
itary modernization of the regional armed forces. There are several explanations
given to this issue. The primary reason has been that the military modernization
of the regional armed forces was a response to the obsolescence of the colonial
military hardware. While there is a dimension of military modernization emerg-
ing from the issue of obsolescence, there are other reasons for the arms build-up
by the countries in the region. Malaysia, Singapore and Thailand have been com-
peting with one another in acquiring, and equipping themselves with,
state-of-the-art fighter attack aircraft and naval vessels including conventional
diesel-electric submarines. These tend to indicate that the regional powers have
been conscious in matters of defence preparedness even in the absence of hostile
disputes and conflicts.
An arms race emerges in the following contexts: i) there must be two or more
parties conscious of their antagonism; ii) the rivals or antagonists must structure
their armed forces to the probable effectiveness of the armed forces that are in
combat with, or as a deterrent to, other arms race participants; iii) the arms race
should be in quantity and quality; and iv) there must be rapid increases in quantity
and constant improvements in quality.9
The arms build-up in Southeast Asia has featured the trends of arms modern-
ization emerging from technological obsolescence. It has also been attributed to
the quest for status and building national power to secure and protect vital
national interests, deterrence against the possible escalation of prevalent disputes
and a response to the competitive process of interactive arms procurement. The
competitive interactive process of arms acquisition has been predominant in
Southeast Asia for reasons of prestige and the maintenance of equality among rel-
atively friendly countries.
However, the continuance of the interactive and competitive acquisition of
arms in the region has its consequences. The implications of this trend would be
adversarial, should the nature of the disputes and territorial claims escalate
from the low level of intensity in the political diplomatic realm to bilateral or
multilateral conflicts.
The possibility of the escalation of the territorial disputes and the involvement
of the military could happen if: a) the effectiveness of the conflict management
and conflict avoidance mechanisms fail; b) the demands of national identity
stakes overrule bilateral and multilateral regional security initiatives and confi-
dence building mechanisms; and c) the templates of the arms build-up goes on a
higher curve of technological sophistication and the competitive arms build-up
quickly escalates into a military crisis.
The trends of arms modernization and acquisition in the 1980s and the 1990s
suffered a setback with the Asian financial crisis in 1997 that propelled a downward
Territorial and maritime disputes in Southeast Asia 39
slide of economic growth and structural crisis. The Asian financial crisis was a
dampener in the arms market of the region as it reduced defence expenditures and
gradually slowed the tempo of arms procurements in the region.
The trend of the arms build-up in the region has been primarily in arms acqui-
sition and modernization of the naval and air forces. The impact of defence
transformation and the Revolution in Military Affairs has induced yet another
dimension in force multipliers and net centric warfare capabilities of countries
such as Malaysia, Singapore and Thailand with comparable force modernizations.
The naval and air forces have been widely regarded as primary and effective
forces for deterrence and power projection. Given the defence transformation
efforts underway in East Asia,10 the accents of transformation have been focused
on rapid logistics, stealth platforms, precision strikes, aerial early warning and
joint warfare with the naval forces providing the platforms for mobility and strike
and the air forces for reconnaissance and strike missions.
A second reason for the trends of modernization in the naval and air forces has
been the presence of extra-regional naval forces in the region and their forward
presence in the Indian Ocean region, the South China Sea and the East Pacific.
The forward presence of the American, Australian, Chinese, Indian and Japanese
navies, as well as the Western navies of France and the United Kingdom, has its
impact on naval forces modernization in the region.
Naval forces modernization is viewed as capabilities building and provides for
increased interoperability between the navies of the region and the extra-regional
naval forces. The Indo-Pacific Oceans provide the sea-space for Southeast Asia,
Northeast Asia and the Far East. It brings the convergence of the great power
navies in the region and their passage through Southeast Asian waters funnelling
in and out of the Indian and Pacific Oceans.
The third reason for the naval and air forces modernization in Southeast Asia
has been the impact of China’s military modernization and its ripple effect on
Southeast Asia. The growing fleet and capabilities build up of the PLA Navy in
terms of long-range endurance surface combatants and conventional and nuclear
submarines is a factor that has to be reckoned with. The PLA Navy and the PLA-
Naval Aviation have been expanding in terms of new surface combatants,
maritime patrol craft, naval aviation rotary and fixed aircraft deployed in the
South Fleet inasmuch as the deployments vis-à-vis Taiwan have been there.11
Although the Southeast Asian naval and air forces are miniscule compared to the
growing platform and performance capabilities of China’s armed forces, the arms
build-up in Southeast Asia is seen as a deterrent value against China.
The fourth reason for the naval and air forces modernization in Southeast Asia
is attributed to the ‘global war on terror’ and the synchronizing of the Southeast
Asian armed forces to the asymmetric and low intensity conflicts. The role of spe-
cial forces in conjunction with naval and air elements is seen as an optimal means
in the combat against terrorism and insurgencies in the region. This is quite evi-
dent in Indonesia and the Philippines. Their respective armed forces have relied
on naval and air elements in enhancing tactical mobility and effectiveness in the
combat against terrorism.12
40 W. Lawrence S. Prabhakar
The fifth reason for the continuing naval and air forces modernization is evi-
dent in the US cooperation and arms sales to the countries of the region. This is to
strengthen US–Southeast Asian cooperation in the global war on terror, with an
emphasis on interoperability and the defence transformation process. The US had
declared the Philippines and Thailand as non-NATO allies in October 2003 with a
view to facilitate the transfer and sales of military hardware.13
The sixth reason is the role and new relevance of regional alliances and bilat-
eral engagements of Southeast Asian countries with the US and the Five Powers
Defence Agreement (FPDA). The FPDA has been reinvented for new grounds of
cooperation of the naval and air forces of Australia, Malaysia, New Zealand,
Singapore, and the United Kingdom converging their security forces and
resources in the global war on terror.14

Naval battle order trends in Southeast Asia


Southeast Asian states’ military equipment procurement and the equipping of the
respective armed forces have continued apace. This has been particularly apparent
in the region’s naval and air arms.
Singapore leads the military modernization process with the acquisition of
sophisticated weaponry. Singapore seeks to replace its existing fighter attack air-
craft with its ‘Next Fighter Replacement’ drawing either the F-15T, the Dassault
Rafale or the Eurofighter Typhoon.15 Singapore’s investments in naval arms mod-
ernization have been with the six highly sophisticated missile frigates based on
the French Lafayette-class. The Lafayette-class will significantly enhance
Singapore’s capacity for securing and protecting the vital SLOCs on which
Singapore’s economic survival depend. Besides this, it has other current procure-
ment programmes of the Seahawk multi-role helicopters and the two ex-Swedish
Västergötland-class submarines to replace Singapore’s existing submarine
squadron. Singapore’s navy is also acutely interested in exploiting surface, sub-
surface and aerial unmanned vehicles.16
Malaysia has a naval order of battle that features four frigates and two fast
frigates with guided missiles armed with Exocet anti-ship missiles. It also has an
assortment of 41 patrol craft and coastal combatants that include eight missile
corvettes. In 2004, Malaysia procured 10 Mi-171Sh armed transport helicopters to
begin replacing its air force’s S-61s. It has also acquired 11 A-109M reconnais-
sance and utility helicopters to replace the Army Aviation Wing’s SA-316 Alouette
IIIs. The Royal Malaysian Navy took delivery of the first of six Super Lynx heli-
copters, and in March 2004 took delivery of six AS555SN Fennec helicopters. The
Royal Malaysian Air Force has orders for eight F/A-18E/F combat aircraft and four
AEW&C aircraft, while longer-term priorities include maritime patrol aircraft for
the navy and avionics upgrades for the air force’s MiG-29s and F-5s.17
Malaysia has concluded an agreement with the European Aeronautic Defence
and Space Company (EADS)) that will lead to its procurement of two TRM-L 3D
surveillance and target acquisition radar systems to meet its air-defence artillery
local warning radar requirement. The contract is valued at US$23.6 million, with
Territorial and maritime disputes in Southeast Asia 41
delivery scheduled for early 2008. It includes an option for eight additional radars
and a decision on whether to acquire these systems is expected in 2006. Malaysia
has also moved to modernize two Royal Malaysian Navy Lerici-class mine coun-
termeasure vessels at a cost of US$24.9 million. The contract was awarded to the
locally based company Realmild and completion is due in May 2006.18 Malaysia’s
procurement programmes have been pitched at the procurement of two
Franco–Spanish Scorpene submarines with delivery in 2009 and two additional
UK-built Lekiu-class frigates scaled down or stretched. It had an initial ambitious
project to build 27 New Generation Patrol Vessels, but this has now been reduced
to just six ships.19
Indonesia has a naval order of battle of two diesel-electric attack submarines,
16 frigates and 10 fast frigates armed with Harpoon and Exocet anti-ship mis-
siles. Its varied patrol and coastal combatants number around 39, comprising
missile corvettes, mine countermeasure vessels and torpedo boats, 26 amphibious
craft of various classes and nine naval aviation Wasp rotary aircrafts. It has been
procuring two Su-27K, two Su-30MK fighter attack aircraft, as well as two Mi-35
combat helicopters for the army. In April 2004, the Indonesian Air Force had fur-
ther procured an additional eight Su-30 MK fighters. The Indonesian Navy had
procured 11 Polish-built PZL M28.05 Skytruck utility aircraft for maritime patrol
and reconnaissance.20 Indonesia has also expressed its intention to purchase 12
submarines from Russia before 2024. Indonesia has been engaged in closer
defence cooperation with Moscow following Indonesia’s 2003 purchase of four
Sukhoi warplanes and two MI-35 assault helicopters. In addition to its dealings
with Russia and the US, Indonesia is considering purchasing weapons from other
potential suppliers, which might include China, several EU countries, India and
South Korea.21 It has recently ordered two Sigma-class corvettes from the
Netherlands worth some US$1.9 billion.22 Indonesia is focused to build a limited
naval force that calls for a ‘green water’ capability by 2020. War-fighting vessels,
equipped with sensors and guided weapons, will be reduced from the present 36
ships to 14 fully operational units. Indonesia’s main naval procurement pro-
gramme involves four Sigma-class corvettes, the first two of which were ordered
in 2004. Other programmes involve procuring Chinese C-802 anti-ship missiles
and, since the US Foreign Military financing was restored in November 2005,
additional Harpoon missiles.23
The Philippines has a modest naval force of one frigate with limited anti-sub-
marine warfare capability and about 58 patrol and coastal combatants. It has
about 13 offshore combatants mostly outfitted with naval gunnery, 11 patrol
coastal vessels, 34 inshore patrol vessels, seven amphibious vessels Landing
Ship, Tank (LST), 30 Landing Craft Mechanized (LCM), three Landing Craft
Utility (LCU) and six Landing Craft Vehicle, Personnel (LCVP). It has recently
procured 20 refurbished UH-1H helicopters from the US, which will boost the air
force’s tactical airlift capacity.
Vietnam has a battle order of two diesel-electric submarines, six mainly
frigates principal combatants, 42 patrol and coastal combatants, and 12 missile
corvettes. Vietnam purchased four Su-30MK fighters in December 2003 for
42 W. Lawrence S. Prabhakar
delivery during 2004 with options on another eight of the type. Vietnam’s air force
took delivery of 10 refurbished L-39C advanced jet trainers that had previously
seen service with the Czech air force. It has also ordered two PZL M28 Skytrucks
for maritime patrol, with another six to eight in prospect.24
In summation, it is evident that Southeast Asian countries have been building
their conventional naval and air forces as a response to the global war on terror, as
well as addressing the cooperative dimensions of regional security. The ASEAN
aspiration to build an ASEAN security community as a self-reliant means to
resolve security disputes is in the making. It shows that ASEAN as a community is
on its long way towards a diplomatic and political recourse to disputes’ settlement.

Territorial disputes and resource management


It is a fact that most disputes in Southeast Asia revolve around sovereignty con-
cerns emanating from the apprehensions of insecurity and unresolved borders and
boundaries. There are also quite a number of disputes and disagreements that
have been persistent as a result of resources. Southeast Asia features five such dis-
putes that have contention over resources and involve territorial stakes.
The first is the Pattani Trough and Gulf of Thailand dispute that involves
Cambodia and Thailand in contention over offshore oil and natural gas. The sec-
ond is the Gulf of Thailand dispute that involves the contention on sea boundaries,
continental shelf and exclusive economic zones (EEZs) between Cambodia and
Vietnam, Malaysia and Thailand, Thailand and Vietnam, Malaysia, Thailand and
Vietnam, and Cambodia, Thailand and Vietnam over oil, natural gas and fishing
resources. There is also the Malaysia–Indonesia dispute over Ligitan and Sipadan
and the recent dispute over Ambalat in the Sulawesi (Celebes) Sea. The final two
disputes comprise the multi-nation South China Sea dispute over the Spratly and
Paracel Islands.25
In terms of the intensity of the disputes, all the above five may be characterized
as having a low level of intensity and have remained more in the political and
diplomatic level of acrimony and rancour, except in the case of the South China
Sea dispute where the use of force levels have been varied. In the other crises, the
role of the navies and the employment of air power have been tailored to augment
the political and diplomatic rhetoric.
The primary contention in all these disputes has been the complexity of mar-
itime delimitation and resources sharing. The nature of crises in Southeast Asia
has been marked by an aggressive ratchet of tensions and evocation of emotional
identity issues tied to resources disputes. The domestic dimension to external dis-
putes has always been quite evident. In the Indonesian case, the Indonesian
military (TNI) had always wanted centre stage in the country’s politics and
domestic affairs. In the Malaysian context, the domestic issue has been the expan-
sion of the Malaysian territorial and economic interests through the aggressive
deployment of its navy and air force.
However, the nature of the resources disputes has not escalated into the
realm of military conflict. This has been due to ASEAN’s viable multilateral
Territorial and maritime disputes in Southeast Asia 43
diplomacy and the invocation of the Treaty of Amity and Cooperation (TAC)
signed by all the members of ASEAN.
The critical linkage between regional disputes and asymmetric threats such as
maritime terrorism and energy SLOCs is an issue that would come under the con-
text of disputes and resources management.
The critical dependence of the Asia-Pacific on the Persian Gulf–West Asia oil
supplies is well known. The seaborne supply of energy resources to Southeast
Asia and the Far East has critical implications on the maritime security of the sea
lanes that are known for their various asymmetric threats and vulnerabilities.
Passing through the waters of Southeast Asia are the energy SLOCs of China,
Japan and South Korea – the predominant importers and consumers of the Persian
Gulf–West Asia energy supplies. The threat of maritime terrorist disruption
remains high.
The vulnerabilities of the seaborne trade of oil supplies from the West Asian
region has motivated China to consider the options of a limited forward presence
of their naval units in the Indian Ocean. Japan and South Korea have been toying
with options of their expanded operations in the Indian Ocean as part of their
coalition operational efforts in Iraq.
China’s Indian Ocean policy has been one of expansion since 2000 with the
quest to build access and bases in the region with maritime infrastructure facilities
in Gwadar in Pakistan. China has justified that it needs the facilities to secure its
oil and trade SLOCs in the region that spans from the Strait of Hormuz to the Strait
of Malacca. In pursuit of its objective to secure its oil and trade SLOCs, China has
financed and built the Gwadar port complex with an initial aid of US$250 million
in Pakistan that would entail China’s PLA Navy warships and nuclear submarines’
access to the port.26 Similarly, the Chinese have been building a signals intelligence
facility on the Great Coco island, in Myanmarese waters 40 nautical miles from the
Andaman Islands, to monitor shipping in the Malacca Strait. At a cost of over
US$2 billion, China is also modernizing Myanmar’s naval bases at Munaung,
Hainggyi, Katan island, Zadaikyi island and Mergui for its surveillance and moni-
toring missions, and basing its naval units for a surge into the Bay of Bengal with
access to the Indian Ocean region. The Chinese are also constructing a road and
waterway link from the southern Yunnan province to the Yangon port in Myanmar
to provide Beijing with access to the Indian Ocean through the Bay of Bengal for
an alternate route to the Malacca and Singapore Straits.27
Japan has been concerned about the vulnerabilities of its energy and trade
SLOCs in the region. It revised its National Defense Program Outline in 2004 and
has been augmenting its capabilities for an out of area engagement in the Indian
Ocean with respect to the operations in Afghanistan and Iraq.28 These engage-
ments are perhaps the first steps of the JMSDF for extended operations outside
Japan and possibly have given it the opportunities to craft access into the region.
Japan has expressed interest in these exercises and has offered to conduct visits by
Japanese Coast Guard units.
It would involve the training of regional coast guard forces in counter-terror-
ism operations with the Japanese special operations forces in naval–air
44 W. Lawrence S. Prabhakar
coordination exercises. Japan has also contributed about 400 million yen to a
revolving fund called the Malacca Strait Council to tackle and manage disasters
in the region that could emerge from oil spills and environmental damages result-
ing from disruptive attacks.29
Given the vulnerabilities of the extended sea lanes of oil traffic, China, Japan
and South Korea are keen to exploit the Australian and Indonesian natural gas
reserves and venture to exploit the offshore natural gas reserves in the archipel-
agic waters. This creates an opportunity to cooperate and diminishes the chance
of a possible resources dispute in territorial waters.
The energy security concerns in the region could be stabilized with coopera-
tive energy security initiatives that would engage the Chinese, Japanese and
Korean energy markets with prospecting and exploiting the natural gas reserves in
the region in an apparent move to reduce the dependency of oil from the Persian
Gulf–West Asia region.30

Implications for maritime security


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

1 What is the importance of territorial disputes and resource management for


maritime security?
2 What is the importance of an arms race and deterrence for maritime security?

Importance of territorial disputes and resources management


The significance of territorial disputes and resources management emerges from
the state’s responses to crises. Often Southeast Asian states have viewed the issues
of interstate disputes through the lens of sovereignty concerns or emotional iden-
tity issues, and in terms of the contention over resources. The demands of
economic and population growth, the colonial past and the intense sensitivity
against external intervention and aggression have resulted in ‘adolescent’
responses to disputes.31 The nature of state responses has been impulsive to con-
cerns of territorial interests.
The problem of uncoordinated state behaviour is quite pervasive in Indonesia,
Myanmar, Thailand and Vietnam as the state does not have full control over the
militaries. Given the loose control of the state over the militaries, there are serious
implications on the region’s maritime security order.
The intensification of any dispute has always resulted in a spiral of immediate
responses and counter responses generated by the militaries of the belligerent
states – particularly the naval and air forces of the belligerents. The navies of the
belligerents have emerged as power brokers, given the maritime contiguous space
Territorial and maritime disputes in Southeast Asia 45
and the mobility of the naval platforms. The advantage of mobile deployment and
an instant response to any maritime dispute by the naval and air platforms has
resulted in the strengthening of their role in the decision-making process of their
national security apparatus.
The advantage has been amply exploited by the naval and air force bureau-
cracies in the Ministries of Defence as leverage for higher defence
expenditures. They would cite external threats as providing the means for
increasing arms procurement or acquisitions, and it would cater for moderniza-
tion and expansion.
In the escalation of a regional conflict, there are possibilities of the naval
engagements of the regional powers escalating into hostile operations. Such esca-
lations would expose the SLOCs in the region to sporadic attacks.
The role of the naval and air forces in the economic context of resources dis-
putes is yet another dimension. Southeast Asian navies have been deployed for
securing resources through the safeguard of EEZs and maritime boundaries. The
role and deployment of naval forces by the Southeast Asian countries in disputes
are for political and diplomatic mileage, and to garner domestic popular support.
The scope of escalation, however, does not go beyond aggressive posturing and
mutual hostile deployments. The probabilities of a full-fledged naval and air con-
frontation do not arise, as the orders of battle of the contending powers in the
region are quite limited.
It has been unique to ASEAN and Southeast Asia that political escalation and
harsh diplomatic verbiage in territorial disputes have only provided for low level
military escalation, before ASEAN mediation efforts step in with the instruments
of the TAC.

Importance of arms race and deterrence for maritime security


Military modernization in Southeast Asia has continued since the 1980s and
through the 1990s, and is commensurate with the region’s economic growth and
development. The economic crisis in 1997 resulted in the slowdown of the
regional economies and commensurate lower defence expenditures. The context
of an arms race has been focused on naval and air power modernization, while
land forces have received secondary importance.
In the context of the current low intensity conflict operations against terrorism
and insurgencies, the focus is equally on the role of land forces – with specific
reference to special forces that act in coordination with the naval and air forces.
Indonesia and the Philippines have reinforced their land forces in tandem with
naval and air power.
The trends of naval modernization may be perceived in two dimensions. One
has been the imperative to develop the traditional roles of high intensity and expe-
ditionary warfare, as well as to promote the evolution of coast guards and
maritime enforcement agencies such as the Malaysian Maritime Enforcement
Agency (MMEA) for the development of the Maritime Domain Awareness in the
region with intensive offshore patrolling.
46 W. Lawrence S. Prabhakar
The other has been the imperative for Southeast Asian navies to develop more
constabulary roles and missions to secure against the increasing exploitation of
offshore energy reserves and fishing grounds, as well as to protect marine
resources – especially fishing-grounds – within the 200-nautical-mile EEZs.
There is also the need to defend national integrity in the face of separatist threats
and prevent terrorists from exploiting weak law enforcement at sea so as to create
and maintain the good order at sea.
Therefore, the requisite assets would be more in terms of coast guard-type
forces deploying patrol vessels equipped with modern surveillance systems aug-
mented by effective maritime air patrol capabilities.
Malaysia has been able to create new organizational and operational
dichotomies to the effect of segregating its traditional naval roles and its mar-
itime enforcement roles with the newly created MMEA in 2005. The
reorganization has been evident in focusing the Malaysian navy’s assets to con-
centrate on building blue water war-fighting capabilities, while MMEA is being
established as a national coast guard with assets and personnel drawn from the
customs and fisheries department, the police and the navy, with a three-star naval
officer in charge. The MMEA has worked out seamless zones of operations for
the marine police to still provide security within the 12-nautical-mile national
waters boundary, with the MMEA responsible for maritime security out to the
EEZ limit.
Naval forces are usually the most stable of the three wings of the armed
forces. Naval forces and platforms, surface and submerged, are effective strike
forces and have the advantages of posturing and a longer endurance in deploy-
ment. In terms of operations, naval forces provide for self sustained surveillance
and reconnaissance, and are capable of conducting autonomous operations in
coordination with the air forces.
In terms of establishing a stable deterrence order, naval forces provide for
deterrence inasmuch as war-fighting capabilities. Southeast Asian navies feature
the naval battle order of small and medium sized combatants that are invariably
armed with anti-ship missiles of the US Harpoon class, French Exocet and the ex-
Soviet anti-ship missiles. The growing offensive capabilities of the PLA Navy to
the north, the evolving Japanese Maritime Self Defence Forces and the presence
of the other extra-regional navies in the Indo-Pacific region have been the primary
reasons of the growing naval power in the region.
Defence modernization in Southeast Asia, with a specific focus on naval and
air arms modernization, can be placed in the following contexts. The first premise
is stated to be conventional deterrence. Conventional arms build up and a robust
force posture seems to be the primary mission of the Southeast Asian navies. This
is important for each state in the context of its regional competitors and as a sta-
tus symbol to their allies and friends in the region. Although cordial political
relations and regional security cooperation is optimal, the littoral states of
Indonesia, Malaysia, Singapore and Thailand have invested considerably in con-
ventional naval and air arms hardware that are used in the operational spectrum of
traditional high-intensity conflicts.
Territorial and maritime disputes in Southeast Asia 47
The deployment of these naval air assets in interstate disputes such as the
recent Indonesia–Malaysia dispute over the oil prospecting offshore areas in
North Borneo in 2005 is an example of the rapid escalation of disputes leading to
the deployment of naval and air forces. The rationale for interoperability and the
transformation dynamics of the extra-regional navies, namely China, India, Japan
and the US, are other reasons that are driving the impetus to defence moderniza-
tion and the preference for high performance naval and air hardware, even when
the matrices of threats have been largely low intensity maritime threats and asym-
metric challenges.
The linkages between the regional maritime territorial disputes and the
regional arms modernization and build-up have been quite evident. The threat
matrices in Southeast Asia are predicated on the scope of conventional forces
build-up and are tagged with the conventional sources of state-centric threats and
the evolving and dominant asymmetric threats and challenges in the region.

Notes
1 C. R. Mitchell defines the four forms of conflict management in his work. See C. R.
Mitchell, The Structure of International Conflict, New York: St Martin’s Press, 1981.
2 The detailed analysis of these disputes and their causal factors are vivid in J. Allcock
et al., Border and Territorial Disputes, Third Edition, Harlow: Longman Group,
1992; J. Bercovitch and R. Jackson, International Conflict: A Chronological
Encyclopaedia for Conflicts and their Management 1945–1995, Washington DC
Congressional Quarterly, 1997; Jean-Marc F. Blanchard ‘Maritime issues in Asia: The
Problem of Adolescence’, in Muthiah Alagappa (ed.) Asian Security Practice:
Instrumental and normative Features. Stanford: Stanford University Press, 2003.
3 The movement of foreign vessels in the Exclusive Economic Zone (EEZ) are
construed as an invasion and violation of territorial sovereignty. See K. Booth, Law,
Force and Diplomacy at Sea, London: Allen & Unwin, 1985, pp. 40–2.
4 J. You, The Armed Forces of China, London: I. B. Taurus, 1999, p. 162.
5 T. Forsberg, ‘Explaining territorial disputes: from power politics to normative
reasons’, Journal of Peace Research, vol. 33, no. 4, 1996, p. 438.
6 D. F. Anwar, ‘Indonesia: domestic priorities defines national security’ in M. Alagappa
(ed.) Asian Security Practice: Material and Ideational Influences, Stanford: Stanford
University Press, 1998, p. 486.
7 J. Garver, ‘China’s push through the South China Sea: The interaction of bureaucratic
and national interests’, China Quarterly, vol. 132, December 1998, 1020.
8 D. Shambaugh, ‘China’s military views the world: ambivalent security’, International
Security, vol. 24, no. 3, Winter 1999, 52–79.
9 C. Gray, ‘The arms race phenomenon’, World Politics, vol. 24, no. 1, 1972, 41.
10 R. A. Bitzinger, ‘Defense transformation and the Asia Pacific: implications for
regional militaries’, Asia Pacific Security Studies, vol. 3 no. 7, October 2004.
11 L. Goldstein, ‘China emerges as a Maritime Power’, Jane’s Intelligence Review, 2004.
Available online at: <http://jir.janes.com> (accessed 27 November 2004).
12 The Military Balance 2004–2005: East Asia and Australasia, Part I, International
Institute of Strategic Studies, pp. 164–5.
13 See the detailed analysis in E. Chanlett-Avery, ‘Thailand: background and U.S.
relations’, Congressional Research Service Report, Washington DC United States
Congress RL 32593, 2005; ‘Philippines – Major non-NATO ally status’, U.S.
Department of State, 9 August 2004. Available online at: <http://www.state.gov/
r/pa/prs/ps/2004/35047.htm> (accessed 30 May 2005).
48 W. Lawrence S. Prabhakar
14 ‘Five-nation regional defence pact expand to counter terrorist threat’, Agence France
Presse, 7 June 2004.
15 R. Scott, ‘Out of little horns grow’, Jane’s Navy International, 1 May 2005. Available
online at: <http://jni.janes.com> (accessed 16 May 2005).
16 ‘South East Asia’s naval forces: aligning capabilities with threats’, IISS Strategic
Comments, vol. 12, no. 1, February 2006.
17 The Military Balance 2004–2005, p. 166.
18 D. Mahadzir, ‘Malaysia to acquire radar systems’, Jane’s Defence Weekly, 21
December 2005. Available online at: <http://jdw.janes.com> (accessed 19 January
2006).
19 ‘South East Asia’s naval forces aligning capabilities with threats’.
20 Ibid.
21 ‘Indonesia to buy 12 Russian submarines’, Mosnews, 23 January 2006. Available
online at: <http://www.mosnews.com/news/2006/01/23/indonsub.shtml> (accessed
16 February 2006).
22 ‘South East Asia’s naval forces aligning capabilities with threats’.
23 Ibid.
24 The Military Balance 2004–2005, p. 166.
25 International Boundaries Research Unit (accessed 16 February 2006).
26 J. Garvar, ‘The future of the Sino-Pakistani entente cordiale’, in M. R. Chambers (ed.)
South Asia in 2020: Future Strategic Balances and Alliances, Carlisle: Strategic
Studies Institute, US Army War College, November 2002.
27 M. Malik, ‘Burma Slides under China’s Shadow’, Jane’s Intelligence Review, vol. 9,
no. 7, 1 July 1997. Available online at: <http://jir.janes.com> (accessed 17 October
2004).
28 C. Hughes, ‘Japan’s re-emergence as a “normal” military power’, Adelphi Paper
368–369, London: International Institute of Strategic Studies, November 2004.
29 T. Sakurai, ‘The Straits of Malacca challenges ahead: Japan’s perspective’, Paper
presented at the International Conference on the Straits of Malacca, Kuala Lumpur,
Malaysia, October 2004.
30 T. Toichi, ‘Energy security in Asia and Japanese policy’, Asia-Pacific Review, vol. 10,
no. 1, 2003, 44–51.
31 The term adolescence in maritime disputes is used by Jean-Marc F. Blanchard. See
his essay, ‘Maritime issues in Asia: the problem of adolescence’, in M. Alagappa (ed.)
Asian Security Order: Instrumental and Normative Features, Stanford: Stanford
University Press, 2003, p. 426.
5 Maritime disputes in the South
China Sea
Strategic and diplomatic status quo
Ralf Emmers

The maritime disputes in the South China Sea impact on a series of regional bilat-
eral relations and continue to trouble ties between the People’s Republic of China
(PRC) and the Association of Southeast Asian Nations (ASEAN).1 The Spratly
Islands are claimed by Brunei, China, Malaysia, the Philippines, Taiwan and
Vietnam while the Paracels have been controlled by China since 1974 and are
claimed by Taiwan and Vietnam. The maritime disputes are influenced by eco-
nomic, strategic and political interests.
The free navigation of commercial vessels in the South China Sea is essential
for regional and international trade. Moreover, the area is rich in fishery resources
and is expected to have oil and gas reserves.2 Brunei, Malaysia and Vietnam are
already oil producers but in 1993 China became a net oil importer. The oil
reserves of the South China Sea are uncertain and initial estimations have been
adjusted lower. However, as exploration techniques have improved, oil reserves
lying under the seabed in the deep water have become more viable. The South
China Sea dispute also has an obvious strategic dimension. If it ever succeeds in
realizing its territorial claims, the PRC would be able ‘to extend its jurisdiction
some one thousand nautical miles from its mainland so as to command the virtual
Mediterranean or maritime heart of Southeast Asia with far-reaching conse-
quences for the strategic environment’.3 A Chinese naval presence at the heart of
the subregion would be threatening not only to the Philippines and Vietnam but
also to Brunei, Indonesia and Malaysia. In addition, control of the maritime com-
munication routes would be strategic, as it would endanger the security interests
of Japan, the US and other maritime powers that cross these waters. Finally, the
territorial claims are of nationalistic importance where the claimant states are
concerned. The claimants have been inflexible on the sovereignty issue.
Retracting territorial claims or a willingness to make concessions on the question
of sovereign jurisdiction would be costly domestically and perceived regionally as
a sign of weakness.
The paper suggests that the maritime disputes over the South China Sea are
characterized by a strategic and diplomatic status quo.4 China does not have the
necessary power projection to impose naval hegemony in the South China Sea.
None of the ASEAN claimants can rely on sufficient naval power or an external
military alliance to impose their claims. With the exception of the Philippines and
50 Ralf Emmers
Vietnam, who feel threatened by China’s actions, the problem of sovereignty in
the South China Sea is not regarded as a direct danger to the national security of
the individual ASEAN countries. A similar situation of status quo exists on the
diplomatic front. China and the ASEAN countries have been negotiating for years
to conclude a code of conduct for the South China Sea. Beijing has preferred a
non-binding multilateral code of conduct limited to the Spratlys that would focus
on dialogue and the preservation of regional stability rather than on the problem
of sovereign jurisdiction. Disunity among the ASEAN countries, particularly
between Malaysia on the one hand and the Philippines and Vietnam on the other,
has also complicated the attainment of a code of conduct for the South China Sea.
The chapter first reviews the nature of the maritime disputes in the South
China Sea by discussing the territorial claims in the context of the Law of the Sea.
Its second section describes the strategic environment in the South China Sea by
both examining the use of force by some claimant states to secure their presence
in the area as well as the changing strategic conditions of the dispute. The last sec-
tion discusses the long diplomatic road towards reaching a code of conduct for the
South China Sea, and asks whether the 2002 political declaration should be
regarded as a step in the right direction or as a missed opportunity.

The nature of the South China Sea dispute


The Law of the Sea
The South China Sea dispute may be examined in the context of the Third United
Nations Convention on the Law of the Sea (UNCLOS III). The latter was adopted
on 30 April 1982 and came into force on 16 November 1994. It was ratified by,
among others, Indonesia, the Philippines, Singapore, Thailand, Vietnam, and
eventually by Brunei, China and Malaysia in 1996. All the claimant states have
therefore ratified the convention, but some have misused it to extend their sover-
eign jurisdiction unilaterally and justify their claims in the South China Sea.
The convention regulates internal waters, archipelagic waters, territorial seas,
contiguous zones, exclusive economic zones (EEZs), continental shelves and
high seas.5 It provides coastal states with the authority to extend their sovereign
jurisdiction under a specific set of rules. It authorizes expansion of the territorial
sea to 12 nautical miles and limits the contiguous zone to 24 nautical miles. It also
states that the EEZ ‘shall not extend beyond the 200 nautical miles from the base-
lines from which the breadth of the territorial sea is measured’.6 The sovereign
rights of a coastal state over the EEZ are limited to the exploration and exploita-
tion of its living and non-living resources. Continental shelves may not be
extended beyond a limit of 350 nautical miles from territorial baselines. The sov-
ereign rights of a coastal state over the continental shelf are reduced to the
exploration and exploitation of its non-living resources.
It is debatable, however, whether most of the Spratly Islands can generate mar-
itime zones. UNCLOS defines an island as ‘a naturally-formed area of land,
surrounded by water, which is above water at high tide’.7 An island is capable of
Maritime disputes in the South China Sea 51
naturally supporting life. Rocks in contrast cannot sustain human habitation or
economic life and ‘have no exclusive economic zone or continental shelf’.8
Features that cannot sustain human life and artificial islands are only entitled
respectively to a 12-nautical-mile territorial sea and a 500-metre safety zone.
These terms of the convention seem to apply to most features in the Spratly arch-
ipelago. In short, due to their status the disputed features in the South China Sea
may not be a legitimate basis for claiming maritime jurisdiction.

Overlapping claims in the South China Sea


The claims made by the parties involved in the South China Sea dispute can be sep-
arated into historical claims of discovery and occupation and claims that rest on the
extension of sovereign jurisdiction under interpretations of the provisions of UNC-
LOS. The PRC views the South China Sea as an exclusive Chinese sea and claims
nearly its entire territory. Its historical claims are based on the discovery and occu-
pation of the territory.9 In 1947, the Nationalist government of Chiang Kai-Shek
defined China’s claims by an area limited by nine interrupted marks that cover most
of the South China Sea. Zhou En-Lai formalized the claims for the PRC in 1951.
Relying on its claim to historical administration of the area, Beijing has not pro-
vided a legal explanation for, or given specific delimitations to, its territorial claims.
After ratifying UNCLOS in May 1996, China applied the archipelagic principle
when drawing maritime baselines around the Paracel Islands, although the
Philippines and Indonesia are the only archipelagic states in the region. The use of
the principle was a source of concern to Indonesia, the Philippines and Vietnam
who protested, due to its possible future application to the Spratlys.
Claiming a comparable area in the South China Sea, Taiwan relies on historical
arguments similar to that of China’s. Since 1956, Taipei has occupied the island of
Itu Aba, the largest feature in the Spratly group. Despite the Taiwan question, the
PRC has tolerated Taipei’s territorial claims in the South China Sea. Until the
reunification of Vietnam, Hanoi had recognized Chinese sovereignty over the
Paracel and Spratly Islands. Since 1975, Vietnam has claimed both groups based
on historical claims of discovery and occupation. In 1977 Vietnam also estab-
lished a 200-nautical-mile EEZ.
The original ASEAN members involved in the dispute present conflicting
claims that differ from those discussed above. Claims are limited to specific parts
of the Spratly archipelago and tend to rely on international law, including the
extension of the continental shelf, rather than on historical arguments.10 Among
the member states, the Philippines claims the largest area of the Spratlys – a zone
referred to as Kalayaan. First officially proclaimed in 1971, a 1978 presidential
decree declared Kalayaan as part of the national territory. The Philippines also
established a 200-nautical-mile EEZ. Meanwhile, Malaysia extended its conti-
nental shelf in 1979 and included features of the Spratlys in its territory.11 Brunei
then established in 1988 an exclusive economic zone of 200 nautical miles that
extends to the south of the Spratly Islands and comprises Louisa Reef. Finally,
Indonesia is not a party to the Spratly dispute. It was neutral in the South China
52 Ralf Emmers
Sea issue until 1993 and the suspected extension of Chinese claims to the waters
above the Natuna gas fields, currently exploited by Indonesia.

Strategic environment in the South China Sea


Use of force
The PRC has on several occasions used force to consolidate its position in the
South China Sea. In January 1974, China completed its control over the Paracel
archipelago by acting militarily against South Vietnam before the expected fall of
Saigon and the reunification of the country.12 This military action was part of the
Sino–Soviet struggle but also reinforced China’s influence in the South China
Sea. Due in part to its limited capacity to project power, the PRC remained absent
from the Spratly Islands until the second half of the 1980s. Claiming the entire
archipelago, China needed urgently to secure a military presence in the Spratlys
and occupy some features. Most claimants have viewed the construction of per-
manent foundations on uninhabitable and occasionally submerged features as a
manifestation of their sovereign jurisdiction. A naval confrontation with Vietnam
on 14 March 1988 led to renewed Chinese seizure of territory.13 Yet the issue was
primarily overlooked in most ASEAN capitals due to the ongoing Cambodian
conflict (1978–91). Moreover, the PRC did not act aggressively against any of the
ASEAN claimants during that period.
After the resolution of the Cambodian Conflict with the signing of the Paris
Accords in October 1991, the territorial dispute over the Spratlys gained in impor-
tance. China’s apparent willingness to show restraint vis-à-vis ASEAN claimants
was questioned when in February 1992 Beijing passed the Law of the People’s
Republic of China on the Territorial Waters and Contiguous Areas. It reiterated
China’s claims in the South China Sea and stipulated the right to use force to pro-
tect islands, including the Spratlys, and their surrounding waters. The law
questioned the peaceful management of the territorial dispute and was regarded
by ASEAN as a political provocation.
On 8 February 1995, the Philippines discovered the Chinese occupation of
Mischief Reef, located in Kalayaan. The PRC had taken, for the first time, ter-
ritory claimed by an ASEAN member. The Mischief Reef incident also
indicated that the Philippines, since the 1992 US withdrawal from Subic Naval
Base and Clark Air Base, had become the most vulnerable actor in the Spratly
dispute. The American departure from its military bases in the Philippines had
removed a source of deterrence against Chinese actions in Kalayaan. Then
Philippine President Fidel Ramos strongly criticized China’s action. Manila
responded to the discovery of the Chinese occupation by seeking multilateral
support and taking retaliatory measures that included the destruction of Chinese
territorial markers and the arrest of Chinese fishermen in March 1995. The
Philippines also announced a defence modernization programme. The PRC and
the Philippines eventually signed in August 1995 a bilateral statement that
rejected the use of force and called for the peaceful resolution of their bilateral
Maritime disputes in the South China Sea 53
dispute in accordance with the principles of the 1982 Convention on the Law of
the Sea.14
Since the Mischief Reef incident, China in its foreign policy has increasingly
been acting as a status quo power respecting standard international norms, rather
than as a revisionist power seeking to undermine the international order.
Shambaugh explains that, both at a bilateral and multilateral level, ‘Beijing’s
diplomacy has been remarkably adept and nuanced, earning praise around the
region’.15 This has been reflected in its actions toward the South China Sea, as
China has not seized disputed features in the Spratlys since the Mischief Reef
incident. Even though it expanded its structures on the reef in November 1998,
Beijing’s policy towards the South China Sea has been moderate in recent years in
an attempt not to antagonize the ASEAN countries. China’s readiness to accom-
modate the Southeast Asian countries over the South China Sea can be explained
by Beijing’s economic priorities as well as by its difficult relations with Japan and
its concern over increased US military presence in the region, particularly since
the terrorist attacks on 11 September 2001.
Yet other claimant states have used military means to take control of reefs
claimed by other states, and friction over the disputed territories has continued.
Tensions have surged between Malaysia and the Philippines, Malaysia and
Vietnam, and the Philippines and Vietnam. In March 1999, Malaysia’s seizure of
Navigator Reef, claimed by the Philippines, strained relations with Manila and
was criticised by Brunei, China and Vietnam. In August 2002, Vietnamese troops
based on one islet fired warning shots at Philippine military planes. Additionally,
some claimants have also used non-military means to protect their interests. In
May 2004, Vietnam started rebuilding a runway on the disputed island of Truong
Sa Lon (Big Spratly) with the purpose of sending small groups of Vietnamese
tourists to the South China Sea.16 China strongly criticized the Vietnamese actions
and described them to be in violation of the 2002 Declaration on the Conduct of
Parties in the South China Sea (discussed below). In sum, all these initiatives and
counterinitiatives have been part of an attempt by the claimant states to secure
their presence in the Spratlys.

Strategic conditions in the South China Sea


China’s naval position in the Spratlys has continued to be weak due to its limited
power projection. The PRC has not extensively increased its ability to sustain naval
operations away from its mainland bases. Shambaugh writes that the People’s
Liberation Army (PLA) ‘does not seem to have made much progress in enhancing
its power projection capabilities, nor do these seem to be a priority’.17 China has no
aircraft carrier battle group to project its power; it has few destroyers and its sub-
marines usually remain within its territorial waters.18 Most features in the Spratly
archipelago are also too small to offer bases for further naval activities. Hence, the
PRC does not currently possess the necessary capabilities to control the Spratly
group militarily. Furthermore, command over the maritime communication routes
that cross the South China Sea can only result from a significant naval dominance
54 Ralf Emmers
and superiority in the region rather than the occupation of tiny features that may
not offer a legitimate basis for claiming maritime jurisdiction.19 It is important
therefore to dissociate the military control of reefs that can only generate limited
maritime zones from the control of sea lanes of communication (SLOCs) and
wider naval areas. The latter are obviously more significant strategically. The PRC
does not yet possess the technology, military capabilities and power projection to
impose such a naval hegemony in Southeast Asia.20
Yet military power should also be examined in relative terms and in light of
regional standards. Here China possesses a significant and increasing naval
advantage when compared to some vulnerable Southeast Asian claimant states.
The build-up of its Southern fleet, even if slow and gradual, is a concern for the
other claimants especially because its geographical area of operation would natu-
rally be the South China Sea. This is particularly true in the context of the
Philippines and Vietnam, which feel threatened by China’s actions in the Spratlys.
Vietnam perceives its relation with the PRC over the South China Sea as a reflec-
tion of its traditional antagonism and patterns of power with Beijing. Vietnam
does not marshal sufficient naval power to impose its will in the South China Sea
nor does it have access to an external source of countervailing power to constrain
China’s actions. Vietnam has not forged a formal or tacit alliance with the US
despite a significant improvement in ties since the establishment of diplomatic
relations on 11 July 1995. Regardless of whether a future de facto alliance is
forged, the US has so far been unwilling to get involved in the territorial dispute.
In the case of the Philippines, Mischief Reef demonstrated Manila’s weakness in
the dispute. The Mischief Reef incident did not lead to a strong US diplomatic
reaction, except for a statement on the freedom of sea lanes. Instead, Washington
reminded Manila that its territorial claims were not covered by the Mutual
Defence Treaty of 30 August 1951 that ties the Philippines to the US. The US
unwillingness to get involved in the territorial dispute may result from a desire not
to further complicate its relations with Beijing. Nonetheless, to strengthen its
deterrence capabilities, the Philippines ratified a Visiting Forces Agreement with
the US in May 1999 to resume joint military exercises.
The Philippines and Vietnam cannot rely on ASEAN in a traditional security
sense. The association is unable, on its own, to act as an effective source of coun-
tervailing power in the South China Sea. ASEAN is devoid of two elements
essential for any formal or tacit alliance: joint military capabilities and the exis-
tence of a common threat perception. Though all the members are confronted
with China’s rising power, they have differential relationships with the PRC that
derive from various aspects that include contrasting historical experiences, eth-
nicity, economic relations as well as domestic and international conditions.
Moreover, the ASEAN claimant states do not benefit from external military assis-
tance to contain the PRC in the South China Sea. In short, the association ‘has no
power to deploy because it is neither a defence community nor a party to a coun-
tervailing structure of alignments’.21 Instead, the Philippines and Vietnam have
relied on ASEAN diplomacy and the negotiation of a code of conduct to protect
their positions in the South China Sea.
Maritime disputes in the South China Sea 55
The long road toward a code of conduct for the South China Sea
History of China–ASEAN negotiations
The first attempt to establish a multilateral dialogue was the Workshops on
Managing Potential Conflicts in the South China Sea. Launched in 1990, the
workshops were an Indonesian sponsored project financed by Canada focusing on
confidence building over maritime issues. By avoiding the question of sovereign
jurisdiction and focusing instead on low level cooperation, the workshops
attempted throughout the 1990s to encourage a multilateral dialogue and enhance
a peaceful management of the conflict.22 The workshops were therefore character-
ized by a functionalist approach to conflict management. In January 1990, an
initial workshop was organized in Bali that gathered the six ASEAN states to a
preliminary meeting. Held in Bandung in July 1991, the second event brought
together the members of the association, China, ‘Chinese Taipei’, Laos and
Vietnam. In his opening statement, Indonesia’s Foreign Minister Ali Alatas
declared that ‘our attention and efforts have been and should continue to be
directed towards finding ways to transform potential sources of conflict into con-
structive forms of cooperation for mutual benefit.’23 Despite their utility, the
workshops never succeeded in advancing towards preventive diplomacy.
In July 1992, the ASEAN foreign ministers signed the ASEAN Declaration on
the South China Sea in Manila, which was an outcome of the joint statement of
the Bandung Workshop of July 1991.24 As ASEAN’s first common position on the
South China Sea, the Manila Declaration did not deal with the problem of sover-
eign jurisdiction but was instead an attempt to promulgate an informal code of
conduct based on self-restraint, the non-use of force and the peaceful resolution
of disputes. It relied on the norms and principles initially introduced in the
ASEAN Treaty of Amity and Cooperation (TAC) of 1976.25 The informal code of
conduct for the South China Sea was based therefore on the notions of conflict
management and avoidance rather than conflict resolution. Despite the overlap-
ping claims, the member states shared an interest in promoting Southeast Asian
stability and avoiding any confrontation with China. Nevertheless, the relevance
of the 1992 Declaration was reduced by the lack of external support. While sup-
ported by Vietnam, China was not receptive to the declaration and did not
formally adhere to its principles. Beijing repeated its preference for bilateral
rather than multilateral discussions on the South China Sea. The US was unsup-
portive and maintained its position of neutrality in the territorial dispute.
At the first ASEAN Regional Forum (ARF) meeting in July 1994, China’s
Foreign Minister Qian Qichen repeated Beijing’s peaceful intentions and rejected
the resort to force as a means to solve the dispute. Yet China refused to discuss the
question of sovereign jurisdiction in a multilateral forum. By limiting itself to bilat-
eral negotiations with the other claimants, China aimed to dominate the discussions.
This complicated ASEAN’s attempt to develop a code of conduct for the South
China Sea. Prior to the second ARF meeting in August 1995, however, China’s
Foreign Minister Qian Qichen made some concessions to the ASEAN members. He
declared that the PRC was prepared to hold multilateral discussions on the Spratly
56 Ralf Emmers
Islands, rather than limit its diplomacy to bilateral talks, and to accept the 1982
Convention on the Law of the Sea as a basis for negotiation.26 These concessions
resulted from a need to accommodate the Southeast Asian countries in light of the
Mischief Reef incident, as well as from a deterioration of Chinese relations with
Japan and the US. Yet they did not alter China’s territorial objectives in the South
China Sea, as Beijing was still unwilling to address the question of sovereign juris-
diction and repeated its territorial claims over nearly the entire area.
At the informal ASEAN Summit of November 1999, the Philippines, sup-
ported by Vietnam, proposed a new version of a code of conduct. This was an
attempt to peacefully manage the South China Sea question by preventing a dete-
rioration of the situation. In particular, it aimed to avert the additional occupation
by the claimant states of disputed and still uninhabited features. The initiative was
more specific than the 1992 Manila Declaration. It tried to move beyond the sim-
ple assertion of standard principles and proposed joint development of the Spratly
Islands. The Philippine proposal was rejected by both China and Malaysia. The
latter was concerned that such a code would be too legalistic. Malaysia had until
the early 1990s been critical of China’s actions in the Spratly Islands but its diplo-
matic stand on the South China Sea gradually changed over the subsequent years
and came closer to the Chinese position. Malaysia refused to address the question
of sovereignty. It favoured bilateral negotiations with China and preferred to
avoid a constraining regional code of conduct or external mediation. The chair-
man’s press statement at the informal summit declared that the heads of state and
government ‘noted the report of the Ministers that ASEAN now has a draft
regional code of conduct, and further consultations will be made on the draft with
a view of advancing the process on the adoption of the code’.27
Malaysia proposed a declaration for the Spratly Islands at the thirty-fifth
ASEAN Ministerial Meeting (AMM) in Brunei in July 2002. The non-binding
document to regulate conduct in the disputed territory was a watered down com-
promise, even failing to mention the Spratlys by name. It was also unclear
whether the agreement would be referred to as a code of conduct or as a declara-
tion. Most member states refused to support the Malaysian proposal, with the
Philippines and Vietnam insisting for instance on the adoption of a binding docu-
ment on the South China Sea. Unable to reach a consensus, the foreign ministers
announced in their joint communiqué their decision to work closely with China
towards a Declaration on the Conduct of Parties in the South China Sea.28
The ASEAN foreign ministers and China’s Vice Foreign Minister Wang Yi
finally signed a Declaration on the Conduct of Parties in the South China Sea on
the sidelines of the ASEAN summit in Phnom Penh in November 2002. The
agreement was intended to prevent further tensions over the disputed territories
and to reduce the risks of military conflict in the South China Sea. The parties
stipulated their adherence to the principles of the UN Charter, UNCLOS, the TAC
and the Five Principles of Peaceful Coexistence and reaffirmed their respect and
commitment to ‘the freedom of navigation in and over flight above the South
China Sea’.29 They agreed to resolve their territorial disputes by peaceful means,
‘without resorting to the threat or use of force, through friendly consultations and
Maritime disputes in the South China Sea 57
negotiations by sovereign states directly concerned, in accordance with univer-
sally recognized principles of international law’.30 The parties also pledged to
practice self-restraint in activities that could spark disputes, such as inhabiting
still uninhabited features, and to enhance their efforts to ‘build trust and confi-
dence between and among them’.31 They agreed to exchange views among
defence officials, to provide humane treatment to any person in danger or distress,
and to give advance notice of military exercises on a voluntary basis. The political
declaration was an interim accord, as the parties were expected to continue work-
ing on the adoption of a code of conduct. It stated:

The Parties concerned reaffirm that the adoption of a code of conduct in the
South China Sea would further promote peace and stability in the region and
agree to work, on the basis of consensus, towards the eventual attainment of
this objective.32

The Philippines and Vietnam were disappointed as they had pushed for a binding
document. Moreover, Vietnam had demanded that the declaration include a com-
mitment not to build new structures, which was rejected by China. The political
declaration also made no reference to its specific geographical scope, primarily
because China opposed any mention of the Paracel Islands.

Declaration on the Conduct of Parties:


step in the right direction or failed opportunity?
As an interim accord, the Declaration on the Conduct of Parties in the South
China Sea is a step in the right direction. It shows a desire by the different parties
involved to pursue their claims by peaceful means. It openly denounces the use of
force in the South China Sea. In that sense, it contributes towards the easing of
tensions between the claimant states. By putting off the question of boundaries, it
also increases the possibility of reaching agreements on joint oil exploration and
development schemes. Such an agreement was, for example, signed in March
2005 by the state-owned oil companies of China, the Philippines and Vietnam
with regard to the conducting of oil pre-exploration surveys in the Spratlys.
Philippine President Gloria Arroyo stated at the time that the agreement was a
first implementation of the provisions of the 2002 Declaration.33
The Declaration on the Conduct of Parties is essentially part of ASEAN’s
search ‘for explicit confirmation that China’s presence in the South China Sea
will not jeopardize peaceful coexistence’.34 In return, China has been keen not to
antagonize the ASEAN countries over the South China Sea and it has often
repeated its desire to resolve the territorial disputes by peaceful means without
the resort to force. Since the Mischief Reef incident, Beijing has introduced an
element of moderation towards the South China Sea question and it has
attempted not to pose challenges to the broader regional order. As the first mul-
tilateral agreement signed by China on the South China Sea, the 2002
Declaration should thus be seen as an indication of its willingness to adhere to
58 Ralf Emmers
the principles promoted by the ASEAN countries. In October 2003, China was
also the first non-Southeast Asian state to adhere to the TAC. This has been part
of China’s overall courtship of ASEAN in recent years, as well as further demon-
strating its willingness to respect the association’s norms of interstate behaviour.
Still, after years of negotiations, the 2002 declaration was a step short of the
original goal of reaching a detailed and binding code of conduct for the South
China Sea.35 Tonnesson points out that the ‘declaration does not establish a legally
binding code of conduct: it is simply a political statement’.36 The declaration is
unable to prevent territorial clashes or other possible sources of conflict such as
the arrest of fishermen by foreign navies and the expansion of military structures
on already-occupied reefs. Attempts to formulate a binding code of conduct for
the South China Sea will continue to face major obstacles. In that respect, the
2002 Declaration may be regarded as an abdication on the part of ASEAN regard-
ing its original objective of attaining a detailed and binding code of conduct.
Though the political declaration is meant to be part of a work in progress, it is
legitimate to question whether the ASEAN members and China will ever agree on
a binding code of conduct for the South China Sea.
The failure to develop a code of conduct among the claimant states results
from several factors. The PRC has constantly repeated that its sovereignty over
the South China Sea is indisputable. Beijing seems only prepared to support a
non-binding multilateral code of conduct that would be limited to the Spratlys and
focus on dialogue and the preservation of regional stability, rather than the prob-
lem of sovereign jurisdiction. Nevertheless, the absence of consensus and
solidarity among the ASEAN states over the South China Sea needs to be kept in
mind, particularly between Malaysia on the one hand and the Philippines and
Vietnam on the other. The ASEAN claimants involved in the dispute are also
unwilling to make concessions with regard to their territorial claims and have
failed to address the problem of sovereign jurisdiction. Finally, cooperation on the
South China Sea has been affected by persisting mistrust among the ASEAN
claimants. All these sources of disunity have complicated the attainment of an
ASEAN stand on a code of conduct.

Conclusion
The maritime disputes in the South China Sea have been characterized by a
strategic and diplomatic status quo. Diplomatic achievements to manage or
even resolve the disputes have been rather limited. The 1992 Declaration on the
South China Sea only applies to the ASEAN members. The 2002 Declaration on
the Conduct of Parties in the South China Sea is based on a multilateral and
normative dimension as well as on a convergence of views on the need to man-
age the dispute peacefully. While a step in the right direction, the declaration is
still only an interim political agreement. It may also be regarded as an abdica-
tion on the part of ASEAN regarding its original objective of attaining a
detailed and binding code of conduct. Despite the use of force by China and
others to take control of some disputed features, the South China Sea has
Maritime disputes in the South China Sea 59
remained primarily a political rather than a military issue, thanks to China’s
desire to accommodate the Southeast Asian countries and the limited naval
capabilities available to the different claimants.
In the short to medium term, an armed conflict seems unlikely although risks
exist of miscalculations or accidents that could lead to limited confrontation. In
the longer run, however, the maritime disputes could become a military threat and
a primary security concern in Southeast Asia if China, or to a lesser extent the
other parties involved, significantly increase their power projection capabilities.
As oil prices have risen substantially over recent years, the situation in the South
China Sea would also quickly change if proof was found of sufficient oil reserves
for commercial use. Whether the situation would change for the better or worse
depends of course on the political and regional circumstances at that given time,
on the status of China–ASEAN relations, as well as on the demand for energy
supplies. There are few reasons to be optimistic on the last issue. Despite its own
production of 3.4 million barrels a day, China’s import needs have already grown
to 40 per cent of its total oil consumption and this figure is expected to increase in
order to sustain its economic growth and development.37
As no solution to the territorial disputes in the South China Sea seems to be in
sight, it is relevant to ask whether the claimant states should put off the question
of boundaries for now and seek instead to agree on joint oil exploration and devel-
opment schemes in this potentially oil-rich area. The agreement signed on the
conducting of oil pre-exploration surveys in the Spratlys by the state-owned oil
companies of China, the Philippines and Vietnam in March 2005 shows that this
process has already started. The signing of such bilateral agreements guarantees
the Philippines and Vietnam to be at the very least included in the exploration
process in areas where they have overlapping sovereignty claims with Beijing. By
avoiding being excluded altogether by the stronger party, Hanoi and Manila can
therefore hope to benefit from the existing living and non-living resources. Yet at
the same time, the overwhelming asymmetry in power and the absence of an over-
all agreement on the sovereign rights of the coastal states can significantly
weaken the negotiating position of the weaker parties as well as leave them in a
fragile situation after changing economic conditions (for instance more oil
reserves found for commercial usage than anticipated) or evolving strategic cir-
cumstances in the territorial dispute.38

Notes
1 ASEAN was established in 1967 and its original members were Indonesia, Malaysia,
the Philippines, Singapore and Thailand. Brunei joined in 1984 after gaining its full
independence from the United Kingdom. Vietnam joined in 1995, Laos and Myanmar
in 1997 and Cambodia in 1999.
2 See B. Catley and M. Keliat, Spratlys: The Dispute in the South China Sea, Aldershot:
Ashgate, 1997, pp. 44–65.
3 M. Leifer, ‘Chinese economic reform: the impact on policy in the South China Sea’,
in G. Segal and R. H. Yang (eds) Chinese Economic Reform: The Impact on Security,
London: Routledge, 1996, p. 142.
60 Ralf Emmers
4 In 1999, the late Professor Michael Leifer went further in his analysis by portraying
the South China Sea dispute as a ‘stalemate’. See M. Leifer, ‘Stalemate in the South
China Sea’, Paper presented at the SUM Workshop on the ‘Conflict in The South
China Sea’, Oslo, Norway, 24–6 April 1999.
5 See R. M. M. Wallace, International Law, Second Edition, London: Sweet &
Maxwell, 1992, pp. 128–65.
6 Article 57, 1982 Convention. Official Text of the United Nations Convention on the
Law of the Sea with Annexes and Index, New York: United Nations, 1983.
7 Article 121, 1982 Convention.
8 Article 121(3), 1982 Convention.
9 See N. Lu, Flashpoint Spratlys, New York: Dolphin Books, 1995, pp. 5–35.
10 A. Acharya, A New Regional Order in South-East Asia: ASEAN in the Post-Cold War
Era, Adelphi Paper no. 279, London: International Institute for Strategic Studies,
August 1993, pp. 33–4.
11 See C. K. Lo, China’s Policy Towards Territorial Disputes, London: Routledge, 1989,
pp. 153–4.
12 See G. Segal, Defending China, Oxford: Oxford University Press, 1985, pp. 197–210.
13 See P. K. Shee, ‘The March 1988 skirmish over the Spratly Islands and its
implications for Sino-Vietnamese relations’, in R. D. Hill, N. Owen and E.V. Roberts
(eds) Fishing in Troubled Waters: Proceedings of an Academic Conference on
Territorial Claims in the South China Sea, Hong Kong: Centre Of Asian Studies,
University of Hong Kong, 1991, pp. 177–91.
14 Joint Statement on RP–PRC Consultations on the South China Sea and on Other
Areas of Cooperation, 9–10 August 1995.
15 D. Shambaugh, ‘China engages Asia: reshaping the regional order’, International
Security, vol. 29, no. 3, Winter 2004/05, p. 64.
16 ‘Vietnam rebuilds Spratly Airport’, BBC News, 14 May 2004.
17 Shambaugh, ‘China engages Asia: reshaping the regional order’, p. 85.
18 J. Power, ‘The so-called rise of China’, International Herald Tribune, 8 April 2005.
19 M. Leifer, ‘The maritime regime and regional security in East Asia’, Pacific Review,
vol. 4, no. 2, 1991, p. 130.
20 See the International Institute for Strategic Studies, The Military Balance 2004–2005,
Oxford: Oxford University Press, 2004, pp. 161–2, 170–3.
21 M. Leifer, ‘ASEAN as a model of a security community?’, in H. Soesastro (ed.)
ASEAN in a Changed Regional and International Political Economy, Jakarta: Centre
For Strategic and International Studies, 1995, p. 141.
22 See I. Townsend-Gault, ‘Confidence and cooperation in the South China Sea: the
Indonesia–Canada initiative’, in J. Wanandi (ed.) Regional Security Arrangements:
Indonesian and Canadian Views, Jakarta: Centre for Strategic and International
Studies, 1996, pp. 69–80; and I. Townsend-Gault, ‘Preventive diplomacy and pro-
activity in the South China Sea’, Contemporary Southeast Asia, vol. 20, no. 2, August
1998, pp. 171–90.
23 HE Mr A. Alatas, Minister for Foreign Affairs of Indonesia, Address Opening The
Second Workshop on ‘Managing Potential Conflicts in the South China Sea’,
Bandung, Indonesia, 15 July 1991.
24 Joint Statement, Workshop on ‘Managing Potential Conflicts in the South China Sea’,
Bandung, Indonesia, 15–18 July 1991.
25 Adopted at the first ASEAN Summit held in Bali in 1976, the TAC constitutes a
norm-based code of conduct that enunciates ASEAN’s core principles, including the
respect for sovereignty and non-interference in the affairs of other states.
26 S. W. Simon, ‘ASEAN Regional Forum’, in W. M. Carpenter and D. G. Wiencek (eds)
Asian Security Handbook: An Assessment of Political-Security Issues in the Asia-
Pacific Region, New York: Me Sharpe, 1996, p. 47.
Maritime disputes in the South China Sea 61
27 Chairman’s Press Statement, Third Informal Summit of the ASEAN Heads of State
and Government, Manila, Philippines, 28 November 1999.
28 Joint Communiqué of the 35th ASEAN Ministerial Meeting, Bandar Seri Begawan,
Brunei, 29–30 July 2002.
29 Declaration on the Conduct of Parties in the South China Sea, Phnom Penh,
Cambodia, 4 November 2002.
30 Ibid.
31 Ibid.
32 Ibid.
33 L. Baguioro, ‘Three nations sign pact for joint Spratlys survey’, The Straits Times
Interactive, 15 March 2005.
34 L. Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’,
Security Dialogue, vol. 34, no. 1, March 2003, 22.
35 R. Emmers, ‘Keeping waters calm in the South China Sea’, The Straits Times,
21 November 2002, p. 23.
36 S. Tonnesson, ‘Sino–Vietnamese rapprochement and the South China Sea irritant’,
Security Dialogue, vol. 34, no. 1, 2003, 55–6.
37 N. Chanda, ‘China naval expansion: strictly business, please’, The Straits Times,
12 April 2005.
38 This point was raised by Dr S. Tonnesson at the Norwegian Institute of International
Affairs–IDSS Workshop on ‘Maritime Security in Southeast Asia’, Oslo, Norway,
14–15 June 2005.
6 Piracy in the waters of Southeast Asia
Catherine Zara Raymond

Piracy has been an almost constant feature of the maritime domain in Southeast
Asia since the fifth century. According to one historian, these early piratical activ-
ities formed part of a complex social web which encompassed elements of
political and economic competition, and social status.1 Today, acts of piracy con-
tinue to occur in the region and over the last ten years have been increasing in
frequency. Although there are now signs of a decrease in the number of incidents,
the attacks themselves have taken on worrying new characteristics and it is possi-
ble to observe a number of disturbing changes in attack trends.
One of the most significant developments is the increase in the occurrences of
kidnap-for-ransom incidents. In the past, this tactic had been the reserve of terrorist
groups such as the Abu Sayyaf Group (ASG) which operates in and around the
islands of the Philippines’ Sulu and Basilan provinces and in the Tawi-Tawi chain of
islands that stretches south to the north eastern coast of Malaysia’s Sabah state.2 In
the last few years ASG has been successfully boarding vessels, kidnapping mem-
bers of the crew and demanding a ransom for their release. In an alarming
development, it now seems that pirate groups have also adopted this tactic.
According to the International Maritime Bureau (IMB), which collects and collates
information on piracy attacks around the world, in 2004 alone there was an unprece-
dented number of kidnappings in which a total of 43 crew members were kidnapped
by pirates in Southeast Asia, of which 36 were taken hostage in the Strait of
Malacca, one of the world’s most important international waterways.3 What is more
worrying is that the demands for ransom made by the pirates are in most cases met
by the employers of those kidnapped in order to secure their release. This kind of
response will undoubtedly encourage the pirates to continue carrying out this type
of attack since pirates are aware that their tactics will most likely pay off.
What is made clear by these bold attacks is that governmental efforts aimed at
curbing the problem are failing. Issues of sovereignty, international law, responsi-
bility and resources (or lack of them) are hampering regional efforts aimed at
addressing the problem. As a result Southeast Asia, and in particular the waters
around the Indonesian archipelago and the Strait of Malacca, will remain a high
risk zone for pirate attacks. Real and comprehensive solutions to the problem
must be developed at the regional level before the economic and human costs of
piracy increase further.
Piracy in the waters of Southeast Asia 63
This chapter will analyse the threat of piracy in Southeast Asia. It will begin
with an examination of the concept of security in the context of the maritime
domain and in particular how this has affected the perception of the problem of
piracy. This is followed by a discussion of the difficulties in defining the phenom-
enon. Attention is also given to emerging trends in tactics and equipment. The
chapter will focus in particular on the world’s most piracy-prone areas around the
seas of Indonesia and the Strait of Malacca. It will then go on to examine some of
the anti-piracy measures that have been implemented. Their effectiveness will be
analyzed and their shortcomings explained. Finally, this paper proposes some rec-
ommendations on the direction that future counter-measures should take.

The securitization of piracy: differing national perspectives


The events of 9/11 highlighted the vulnerability of the maritime domain to attack
by terrorists. Attention soon turned to the continuing problem of piracy in
Southeast Asia and the phenomenon begun to receive considerable attention inter-
nationally. This was in part due to speculation in some quarters of a
piracy–terrorism nexus. The result was that the region was increasingly being per-
ceived as insecure. Facing an internationalization of the issue, the three littoral
states of Indonesia, Malaysia and Singapore began to increase their cooperation in
order to enhance maritime security in their part of the region. However, issues
such as concerns over the erosion of sovereignty and a lack of resources ham-
pered such efforts. Differing national priorities also caused problems.
A secure maritime domain is of paramount importance to Singapore. First, the
uninterrupted flow of seaborne trade to and from its port terminals is vital to the sta-
bility of its economy. At any one time, there are approximately 1000 ships in port.
On average, it is estimated that some 140,000 vessels visit Singapore annually. This
includes more than 10,000 oil tankers and 7,000 chemical tankers every year.4
Singapore’s high dependence on the maritime sector is due to its strategic location at
the southern end of the Malacca Strait. Over 60,000 vessels pass through the
Singapore Strait on an annual basis on their way to the Strait of Malacca,5 a water-
way that has been described as one of the arteries of the global economy. Due to its
small size and buoyant economy, Singapore has been able to make maritime security
a top priority and has implemented a comprehensive and highly effective maritime
security strategy, designed to combat piracy and maritime terrorism in its waters.
Indonesia on the other hand, consists of over 17,000 islands which cover a land
area of around 2 million square kilometres and its territorial waters are nearly four
times that size.6 In stark contrast to Singapore, its defence and security resources
are already stretched due to continued internal security problems and defence
budget constraints. This limits Indonesia’s ability to participate or contribute to
regional maritime security. In addition, Indonesia is less concerned with enhanc-
ing maritime security in the conventional sense. Its priority is to securitize the
maritime domain in order to protect its fishing stocks from illegal fishing, pri-
marily by Thailand, and to prevent the occurrence of an environmental disaster,
which would cause the destruction of this resource.
64 Catherine Zara Raymond
Malaysia’s views on the concept of security in the context of the maritime domain
and the problem of piracy lie somewhere between its two neighbours. Like
Indonesia, it is heavily dependent on fisheries in the strait for employment and as
a food source, thus their protection is a high priority. On the other hand, Malaysia
is currently encouraging the growth and expansion of its Tanjung Pelepas Port,
which it hopes will rival Singapore’s facilities in the future. Malaysia’s interests
and priorities have manifested themselves over the years as a combination of, on
the one hand, a willingness to participate in the more conventional security exer-
cises advocated by Singapore, and on the other, a playing down of the severity of
the problem of piracy.

What is in a name? Piracy versus armed robbery


From a strictly legal perspective, there is very little piracy per se in the world
today. The standard legal definition of piracy that is used in the United Nations
Convention on the Law of the Sea, states that piracy is:

(a) any illegal acts of violence or detention, or any act of depredation,


committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons
or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an air-
craft with knowledge of facts making it a pirate ship or aircraft;
(c) any act inciting or of intentionally facilitating an act described in sub-
paragraph (a) or (b).7

It is axiomatic to the Law of the Sea Convention’s anti-piracy regime that piracy
jure gentium (i.e. in international law) cannot occur within the territorial sea,
internal waters or archipelagic waters of a state.8 The difficulty with this is that
most attacks on ships do occur within the 12-mile limit of a state’s territorial
waters or the archipelagic waters of an archipelagic state and not on the high
seas. Therefore such incidents are not legally considered piracy; they are in fact
armed robbery. To overcome this problem the IMB has adopted the following
broad definition:

Piracy is an act of boarding any vessel with the intent to commit theft or any
other crime and with the intent or capability to use force in the furtherance of
that act.9

However this wider definition, which covers all acts regardless of the location of
the vessel, is not recognized in international law.
Piracy in the waters of Southeast Asia 65
As the majority of attacks in Southeast Asia take place within territorial waters,
as is the case along most of the Strait of Malacca, or within archipelagic waters
such as those of Indonesia or the Philippines, it is important to note once again that
under international law these incidents are in fact considered armed robbery.
However, for the purposes of this paper the term piracy will be used in such cases.

Southeast Asia – a hotspot for attacks


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

The modus operandi of attacks and current trends


Harbour and anchorage attacks
This type of attack is most common in Indonesian waters and consists of the
opportunistic boarding of a ship while it is berthed or at anchor in or near a har-
bour; 51 actual attacks out of a total of 72 that occurred in Indonesia fall into this
category.11 The majority of these attacks were carried out against vessels which
sail on local voyages. They generally take place at night between 0100 and 0600
hours. The criminals board a ship, steal what they can immediately lay their hands
on – for example cash or electronic equipment – and escape, often without the
66 Catherine Zara Raymond
knowledge of the crew. There is evidence of selective opening of containers or
holds with high value cargoes, implying prior knowledge of the cargo manifest.
This may be due to the fact that the perpetrators previously had access to the ship
as employees of a shore-based contractor.
In Southeast Asia, these attacks tend to be less violent, as the robbers are not
interested in serious confrontations. In some cases it has been reported that the
pirates fled empty-handed when intercepted or confronted by an alert crew. The
average take is less in this type of attack than other more sophisticated operations,
and ranges from US$5,000 to US$10,000.12

Attacks against vessels at sea: robbery


This kind of piracy is often referred to as ‘Asian’ piracy. The sea areas dotted with
islands and rocks which characterize the region form ideal hiding places for these
‘hit and run’ attacks which have in the past taken place quite frequently.
In this type of attack, the pirates come alongside a ship underway, usually at
night, again most often between 0100 and 0600 hours, board it using grappling
hooks and then take cash and valuables from the ship’s safe and the crew, includ-
ing high-tech navigation equipment or whatever else they can seize quickly. In
this type of attack the value of the stolen goods can be between US$10,000 and
US$20,000.13 In recent years there has been an increase in the number of inci-
dents where several vessels intercept a target and open fire on the ship, forcing it
to stop. In this style of attack the ship can be taken over for up to a few hours by
around five to ten pirates, although many attacks can be over within half an hour.
This mode of attack requires a certain amount of capital investment in boats
and arms, and a certain degree of organization is necessary in order to coordi-
nate a large group and to obtain inside information regarding what a particular
vessel is carrying.
Since mid-2004 there has been a drastic reduction in the number of robberies
taking place in the Malacca and Singapore Straits. In that year, there were only
eight reported robberies at sea out of a total of 41 attacks, whereas in 2003 there
were 20 robberies out of a total of 36. This pattern has continued into 2005. The
decrease in robberies at sea, as opposed to other types of piracy, of which some
saw an increase over the same period, may be due to an increased awareness on
the part of some crewmembers of the threat of piracy following the introduction
of new maritime security requirements for vessels.

Attacks against vessels at sea: hijacking


This brand of piracy involving a vessel underway may be less common but is far
more serious. It involves the long-term seizure or hijacking of a vessel, perhaps
for several days, while the cargo is unloaded at ports selected by the pirates or
transferred to another vessel. In Southeast Asia, particularly in the late 1990s, the
favourite cargo to steal was fuel oil, which was easily sold onto a booming black
market.
Piracy in the waters of Southeast Asia 67
This type of incident was not seen at all in 2003. It is believed that China’s
crackdown on black-market activity and the disruption of some of the international
crime syndicates believed to be involved in piracy in the region (several of which
were thought to have been run by Indonesian-Chinese bosses) was a contributing
factor. However, this positive development was short-lived, as such an operation
was recently carried out in an attack which took place on 22 April 2005. At 5 am,
gun-wielding pirates hijacked a vessel carrying a cargo of tin worth US$4.6 mil-
lion just off the Lingga Islands in Indonesian waters. The vessel, which was en
route to Singapore, was boarded by the pirates, who then ordered the crew to sail
the ship to Pasir Gudang port, in Malaysia’s southern Johor state. The vessel
docked in Pasir Gudang port for two days while the crew unloaded the tin into a
warehouse under threat of being killed if they did not cooperate. On 25 April, the
pirates ordered the ship back to Indonesian waters and escaped in a speedboat,
leaving the crew uninjured. After the incident was reported, authorities checked the
warehouse and found the cargo of tin intact. The investigation continues.14
This kind of operation requires good intelligence gathering and careful plan-
ning as the risk of being caught is greater. However, the potential rewards are also
great. There is a need for the pirates to have secured a location to dock and unload
the cargo, or another ship to which to transfer it. Reliable access to markets for
their stolen cargo is also required. There must be a plan to deal with the hostages.
The pirates may also in some instances gain the compliance of the local authori-
ties. Bribery is often used to achieve this goal. In some extreme cases, it is
believed that officials may even provide pirates with information on vessels and
cargoes in their areas of jurisdiction.
A variation of this category of attack is the permanent seizure of a vessel by
pirates, wherein the vessel is turned into a ‘phantom ship’; the key difference
being that once the pirates have disposed of the vessel’s cargo, they do not aban-
don the vessel. In this type of attack the ship is repainted and the crew dumped or
killed. The ship then sails into a new port with a false name and forged documen-
tation. Maritime certificate fraud is common in the maritime industry. The
problem lies in the fact that it is possible to acquire, relatively easily, the legal
documents needed to command a vessel, without any proof of qualifications. In
these types of operations the vessel is often given a temporary six-month registra-
tion under a flag of convenience.15 This allows the vessels’ owners to hide behind
a wall of secrecy created by the dubious ownership structures of flag of conve-
nience shipping. These vessels are then often used in various maritime criminal
activities, such as conducting pirate attacks and smuggling goods and people.
The most famous case of this kind was the hijacking of the Singaporean-
owned Petro Ranger, in April 1998. A large tanker carrying a cargo of diesel and
Jet-A1 fuel, the Petro Ranger was on its way from Singapore to Ho Chi Minh
City. The vessel was taken over by pirates three hours out of Singaporean waters.
The ship’s name was painted over and it was renamed MV Wilby. Its Malaysian
flag was exchanged for a Honduran one. A day later most of its cargo was tran-
shipped into two other tankers in the Gulf of Thailand. The ship was sailed into
port on China’s Hainan Island, where the pirates passed themselves off as the
68 Catherine Zara Raymond
ship’s rightful crew. Despite the fact that the Chinese authorities arrested the
pirates, they were released after only a few months in jail.16
In recent times there has been a shift away from the hijacking of larger
freighters and tankers, and an increase in attacks against tugboats. These vessels
can avoid suspicion given their small size and the fact that they are a common
sight in ports and international waterways. In 2003, according to IMB statistics, a
total of 13 vessels were hijacked in Southeast Asian waters. 10 out of the 13
hijacked ships were tugs either sailing alone or pulling barges.17 Although the fig-
ures are lower for 2004, they show the same pattern of targeting: out of the eight
hijackings that took place, five of the vessels were tugboats.18 There was a con-
cern that the stolen tugs could be used by terrorists to carry out attacks against
shipping in the Strait of Malacca. Stories circulated in the media that these vessels
could be packed with explosives and rammed into tankers carrying gas or petro-
leum products, or into port facilities close to large cities.

Kidnap-for-ransom
This category of piracy first emerged in 2001 and since then there has been a
rapid and worrying increase in the number of cases in Southeast Asian waters. In
2004 alone there were 14 kidnap-for-ransom attacks in the Malacca and
Singapore Straits. This was more than triple the number that occurred in 2003.
The figures are lower in 2005, due to the overall decrease in the number of
attacks taking place. However, kidnap-for-ransom attacks still feature promi-
nently in attack statistics.19
In a typical operation of this kind the attackers perform an armed takeover of
the vessel (often the vessel is a small one, for example a tugboat) followed by the
abduction of two or three senior members of the crew who are held ashore pend-
ing negotiations. The result is normally the release of the kidnapped crew
members following the payment of a ransom by the crew’s employers.20
According to Noel Chong of the IMB, many of these attacks are likely to go unre-
ported as ship owners want to avoid a backlash from the industry for giving in to
the demands of the pirates.21 Ransoms demanded for the release of crew members
can range from US$100,000 to US$200,000. However, the sum of money eventu-
ally paid to the attackers following negotiations is usually substantially lower,
somewhere in the region of US$10,000 to US$20,000.
This new brand of piracy drew considerable media attention when two inci-
dents occurred consecutively within a few days in the Malacca Strait. In the
first attack, which took place on 12 March 2005, the target was an Indonesian
chemical tanker. Thirty five gunmen, who according to reports were armed with
rocket launchers, stormed the tanker and kidnapped the captain and the chief
engineer. The second attack took place two days later on 14 March. The target
this time was a Japanese-registered tugboat, which was towing a construction
barge from Indonesia to Myanmar. Pirates in three fishing boats opened fire on
the tug, forcing it to stop. The pirates stole US$7,000 worth of navigational
charts and documents and kidnapped three members of the crew. The attacks
Piracy in the waters of Southeast Asia 69
sparked a considerable reaction from the littoral states Indonesia and Malaysia,
which launched rescue operations thereafter.
In the past it was believed that, rather than pirates, terrorist groups such as
ASG and GAM, were responsible for carrying out these attacks. GAM in particu-
lar was singled out as being responsible for the dramatic increase in attacks in
Indonesian waters at the northern end of the Malacca Strait, off North Sumatra;
this is traditionally one of its areas of operation. Since the 1970s GAM has been
fighting a separatist war against the Indonesian Government, with the aim of cre-
ating an independent Islamic kingdom in the province of Aceh. The group is said
to finance its terrorist activities in part through sea piracy and smuggling.22
However, GAM has only ever admitted to carrying out one attack against a boat
being chartered by Exxon Mobil in 2002.
Additionally, another such attack attributed to GAM was the hijacking of the
Penrider, en route from Singapore to Penang, in August 2003. Approximately 12
pirates boarded the oil tanker 12 miles from Port Klang, Malaysia, in the Malacca
Straits and kidnapped three crew members.23 After protracted ransom negotia-
tions, the hostages were returned unharmed. According to one member of the
crew, the pirates wore military-style fatigues, spoke the Acehnese language and
claimed to be Aceh soldiers. Some of the hostages were even taken to jungle hide-
outs in Aceh and, according to the statements made by the victims, the pirates
made no secret of the fact that they belonged to GAM.24 Despite evidence point-
ing to the involvement of GAM, officials remain undecided. It would have been
their first such attack so close to the Malaysian coast and so far south of Aceh.
GAM also vehemently denied any involvement.
The rapid increase in incidents of kidnap-for-ransom has prompted many play-
ers in the maritime security industry to come to a new conclusion – that these
attacks are not necessarily perpetrated by terrorist groups but are the work of
crime syndicates operating from fishing boats and staging copycat kidnaps which
they see as an easy way to make money.

The suspects
Small-scale criminals
Pirate attacks in Southeast Asia are carried out by a variety of groups. However,
small-scale petty criminals perpetrate the majority. For this reason, their attacks are
less organized and more opportunistic in nature. Their targets are mostly small ves-
sels in port or anchorage, or those on local voyages between, for example, one
Indonesian port and another. This category of pirate is also least likely to be well
armed. Most will carry knives or machetes but occasionally guns may also be used.
Those suspected of being involved in small-scale pirate attacks in and around
the Strait of Malacca are believed to be mainly of Indonesian nationality, living in
coastal settlements. They use piracy as a way of supplementing their inadequate
living. There has also been speculation that certain members of the Indonesian
military have been involved.
70 Catherine Zara Raymond
Criminal syndicates
The IMB believes that about five criminal syndicates – probably based in
Indonesia and Malaysia – are responsible for most of the larger-scale hijackings
in the Straits of Malacca.25 These attacks involve well-trained personnel using fast
boats, modern weapons and in some cases, sophisticated communications.26
These groups are likely to have established links to the black market, where they
would be able to dispose of their stolen cargo. They may also be in collusion with
local authorities, who would be needed to guarantee a safe port for cargo to be
unloaded or in some cases a secure berth where a vessel can be given a new iden-
tity. These pirate groups may have connections with warlords and political
movements that are linked to terrorism. This is particularly the case in the
Southern Philippines where individuals kidnapped by pirates are then often sold
on to the ASG.

Terrorist groups
As noted above, although there has often been very little hard evidence to sub-
stantiate the claim, the terrorist group GAM has frequently been held responsible
for pirate attacks in the Strait of Malacca, the waters around Indonesia and even
Malaysia. However, since the recent signing of a peace agreement with the
Indonesian Government, this may no longer be the case. In the Philippines the
line between piracy and terrorism is even more unclear. ASG, the Moro Islamic
Liberation Front (MILF) and the Moro National Liberation Front (MNLF) engage
in maritime piracy to generate much needed funds.27 There has even been specu-
lation that some segments of ASG are undergoing a process of criminalization.28
In other words, they are becoming increasingly motivated by pecuniary rewards
rather than ideological or political goals.29
The targets of these groups are often small, vulnerable vessels such as tugs or
fishing boats. This is due to the fact that the target is not the vessel itself, or its
cargo but the crew members, who are kidnapped and held for ransom. In such
cases, when the attack takes place in the Strait of Malacca or the waters around
Indonesia, it is most likely that the hostages will be released unharmed. However,
in the waters around the Philippines some of these attacks are carried out by the
ASG who has been known to kill hostages in the past.30

Equipment
Pirate boats are usually equipped with several outboard motors on the back,
allowing them to go almost three times as fast as many vessels. They often make
use of modest radar systems to help them locate their targets. Pirates also use a
low-tech version of stealth technology by using wooden boats which are hard to
spot on radar.31 According to reports, pirates can be armed with weapons ranging
from knives to rocket launchers, AK47 and M16 rifles.32 However, in a typical
attack the most common weapons used are still knives and guns.
Piracy in the waters of Southeast Asia 71
The targets
The vessels most commonly targeted by pirates in Southeast Asia are bulk carri-
ers, which accounted for a third of all the attacks in the region. This is due to a
number of factors: bulk carriers may travel at a limited speed when making their
way up the narrow waterways of the straits and they are also minimum freeboard
ships. Thus the vessel is more easily boarded by pirates when it is underway.
These vessels are vulnerable while at anchor or at berth because there is likely to
be a reduced crew while they await the next cargo. Pirates have also attacked bulk
carriers during cargo operations, when the crew is preoccupied with the task of
loading the new cargo.
In the Straits of Malacca and Singapore specifically, over the last five years the
most common targets have been product tankers and general cargo vessels. These
vessels are likely to be attacked firstly because they are numerous in these waters,
and secondly because they are frequently engaged on local voyages closer to the
coast, thereby making them easy targets for pirates lying in wait.

Contemporary causes of piracy


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

The impact of piracy


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

The response
As most piracy is legally considered armed robbery, any countermeasures are the
responsibility of the state. The investigation, capture, prosecution and punishment
of pirates who operate within territorial waters therefore vary due to the diverse
national legal systems of the states in the region. However, given the transnational
Piracy in the waters of Southeast Asia 73
nature of piracy, multilateral cooperative measures are needed to effectively deal
with the problem. Unfortunately, obstacles to cooperation are numerous. These
may include concerns over the erosion of national sovereignty and differing polit-
ical and economic priorities.
Despite these problems, the region witnessed the introduction of two new impor-
tant maritime security measures in 2004. One was the International Ship and Port
Facility Security Code (ISPS Code), which was created by the International
Maritime Organization (IMO) to introduce worldwide a range of new security
requirements for vessels and port facilities. The other was the launch of the
Trilateral Coordinated Patrol, which involved the navies of Indonesia, Malaysia and
Singapore patrolling in a coordinated fashion in their respective territorial waters.
Following the introduction of these two new measures in mid-2004, there was not,
however, any significant reduction in the total number of incidents of piracy in the
region in the second half of 2004. The figures for 2005 are more promising; how-
ever, this reduction is most probably a result of the devastation caused by the
tsunami, which is likely to have either killed some of those involved in piracy or
destroyed their boats and weapons, rather than because of any anti-piracy measures.
Although the ISPS Code significantly increased security awareness in the mar-
itime industry, the standard of enforcement of the new IMO regulations varies
from country to country. This is especially true in the case of states that have on
their shipping registers flags of convenience vessels. These states ‘lack the
resources or people with sufficient expertise to enforce the standards that are
acceptable to the shipping community at large’.40 In fact in the majority of cases,
one could argue that although security plans may be in place and security officers
designated, the unfortunate reality is that it is often crewmembers of a fairly low
rank and with limited training who are tasked to implement the code.41
The Trilateral Coordinated Patrols have also been limited in their ability to
reduce piracy. The main problem being that there is a lack of provision for ‘hot-
pursuit’ into each others’ territorial waters. Although arrangements were put in
place for communication to be established between the navies in the case of a
cross-border chase to allow one navy to hand over to the other, they are unlikely to
be as effective as the employment of ‘hot pursuit’.
More recently in 2005 and 2006 a number of new multilateral measures have
been or are in the process of being implemented in the region. In the latest develop-
ment the littoral states, with Thailand as an observer, begin joint air patrols over the
Malacca Strait in a bid to boost security in the waterway. It is hoped that the aerial
patrols, dubbed the ‘Eyes in the Sky Plan’, will provide a valuable supplement to the
Trilateral Coordinated Patrols carried out by the navies of the littoral states. One
significant advantage of the aerial patrols is that they will be able to fly for up to
three nautical miles inside the territorial waters of the participating states, thus
allowing for a reasonable ‘transgression’ of boundaries. In the sea-patrols the navies
were limited to patrolling in their own territorial jurisdiction or on the high-seas.
On a less optimistic note, the ‘Eyes in the Sky’ plan has already been criticized
as being merely ‘for show’. It is estimated that 70 sorties per week need to be car-
ried out by the aerial patrols in order to effectively monitor the strait throughout
74 Catherine Zara Raymond
the day and night. However, currently only eight take place.42 There is also a lack
of sea-patrol vessels available to carry out investigation and interdiction if neces-
sary, following the sighting of a suspect vessel by the aerial patrols. Although the
‘Eyes in the Sky’ plan clearly has room for significant improvement, the valuable
deterrent effect it will have on potential attackers cannot be dismissed.
Perhaps more significant is the recent signing of a set of standard operating
procedures for the Malacca Strait. The agreement was finalized between
Indonesia, Malaysia and Singapore in April 2006. It will allow patrol vessels from
one participating country to cross over into the territorial waters of another when
in pursuit of a vessel engaged in maritime crime, provided that the patrol vessel
does not open fire or carry out any other military actions.43
These new measures, if successfully implemented, should significantly
improve security in the region’s waterways since they display a greater level of
regional cooperation than seen previously. The littoral states seem to have finally
overcome one of the major stumbling blocks to enhancing maritime security in
the Malacca Strait – concern over the erosion of their territorial sovereignty.
In the meantime however, pirate attacks will continue in the region’s water-
ways, and ship owners are increasingly looking elsewhere for ways to enhance
their security. One solution that has rapidly gained popularity in recent months is
the employment of private security companies who are offering armed escort ser-
vices through the straits. For between US$10,000 and US$100,000 a shipping
company can have armed Gurkhas, escort vessels and helicopter scouts securing
its passage through the straits.44 Despite assurances that the escorts merely act as
a deterrent to potential attackers, they have provoked a strong response from the
littoral states. Both Indonesia and Malaysia have declared that these companies
should not provide armed escorts through their waters. Malaysia even announced
its plans to detain ships with private armed escorts.45 However, the Malaysian
Defence Minister subsequently stated that armed escorts would be allowed to pass
though Malaysia’s stretch of the Malacca Strait, provided that their passage is
continuous and expeditious.

Recommendations and conclusions


Piracy in Southeast Asia is likely to remain a major security concern for govern-
ments and the shipping industry for the foreseeable future. It also acts as a
constant reminder of the potential ease with which terrorists could use similar
tactics to carry out an attack. As long as piracy continues, it clearly illustrates
that a certain amount of anarchy or lawlessness prevails in the region’s water-
ways. Piracy levels are therefore an indicator of the overall security in the region.
America’s war on terrorism following 9/11 put maritime security under the
spotlight and prompted the region’s states to begin improving security in the mar-
itime domain. This assertive posture must be maintained. Cooperation between
the region’s states must be enhanced to include agreements on ‘hot pursuit’ and
more mechanisms for intelligence sharing.
Piracy in the waters of Southeast Asia 75
In the Strait of Malacca the need to address the problem of piracy has recently
become even more urgent. Following a risk assessment of the area, the Joint War
Committee (JWC) of Lloyd’s Market Association declared the straits a ‘high-risk
zone’ and added it to its list of areas which are at risk to war, strikes, terrorism
and related perils. Others on the list are countries such as Iraq, Lebanon and
Somalia. Indonesian ports along the straits were also added to the list. This move
by the JWC could result in higher insurance premiums for the ships that transit
the straits or call at some Indonesian ports. When war risk premiums were
applied to the Yemeni port of Aden, container shipping lines were forced to
divert to neighbouring ports. The resulting impact on the Yemeni economy was
severe.
Major users of the region’s waterways must begin to accept a greater responsi-
bility for enhancing maritime security. Japan is one user state that has contributed
significantly to efforts to improve safety and security in the Straits of Malacca.
For example, it is currently providing support to Indonesia in order to help it
implement the ISPS Code in its ports. Japan’s efforts could be used as a model for
other states wishing to provide assistance – in particular in the areas of maritime
enforcement capacity building, personnel training and resources – in the future.
It would be advantageous if all the Southeast Asian states signed the IMO’s
1988 Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (SUA): ‘Ratification of the convention gives signatory gov-
ernments the power to prosecute people caught in their own territorial waters for
acts of piracy committed under another country’s jurisdiction.’46 Although the
SUA Convention has been signed by 126 out of 166 IMO member states, which is
a high number of contracting states in comparison to many other maritime con-
ventions, a number of countries are conspicuously missing from the list, given
their important position as guardians of strategically important waterways. In
Southeast Asia, only Brunei, Myanmar, the Philippines, Singapore and Vietnam
are signatories to this convention.
Finally, long-term solutions need to be found to address the root causes of
piracy, which may include poor socio-economic conditions. Indonesia’s efforts in
this area are a step in the right direction but more will need to be done in the near
future, if the problem of piracy in Southeast Asia is to be resolved.

Notes
1 A. Young, ‘Roots of contemporary maritime piracy in Southeast Asia’, in D. Johnson
and M. Valencia (eds) Piracy in Southeast Asia: Status, Issues, and Responses,
Singapore: ISEAS, 2005.
2 ‘Abu Sayyaf Group’, FAS Intelligence Resource Program. Available online at:
<http://www.fas.org/irp/world/para/asg.htm> (accessed 10 May 2005).
3 Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime
Bureau, 2004, p. 10.
4 Maritime and Port Authority of Singapore, Available online at: <http://www.mpa.
gov.sg/maritimeportsecurity/maritime_security.htm> (accessed 5 May 2005).
5 Straitrep 2004 data provided by Captain M. Mathai from the Nippon Maritime
Centre, Singapore.
76 Catherine Zara Raymond
6 B. Brunner, ‘The year of living dangerously: Indonesia after Suharto’, 7 June 1999.
Online. Available online at: <http://www.infoplease.com/spot/indonesia1.html>
(accessed 31/10/2005).
7 Article 101, United Nations Convention on the Law of the Sea. Available online at:
<http://www.un.org/Depts/los/convention_agreements/convention_overview_conven
tion.htm> (accessed 12 May 2005).
8 J. Chenevier, ‘Piracy under the Law of the Sea convention: conceptual basis and
practical limitations’, MLAANZ Journal, vol. 15, part 2, 2000, p. 50.
9 ‘Co-operation for law & order at sea’, CSCAP Memo 5, p. 14
10 Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime
Bureau, 2005, p. 5.
11 Ibid., p. 8.
12 A. Young and M. Valencia, ‘Conflation of piracy and terrorism in Southeast Asia:
rectitude and utility’, Contemporary Southeast Asia, vol. 25, no. 2, 2003, p. 272.
13 A. Davis, ‘Piracy in Southeast Asia shows signs of increased organization’, Jane’s
Intelligence Review, 1 June 2004, p. 2.
14 Worldwide Threat to Shipping Mariner Warning Information, Office of Naval
Intelligence Civil Maritime Analysis Dept, 18 May 2005.
15 A flag of convenience ship is one that flies the flag of a country other than the country
of ownership. Cheap registration fees, low or no taxes and freedom to employ cheap
labour are the motivating factors behind a ship owner’s decision to use flags of
convenience.
16 Anti-Shipping Activity Messages, 1998. Available online at:
<http://www.fas.org/irp/world/para/docs/ASAM-1998.htm> (accessed 20 May 2005).
17 Piracy & Armed Robbery Against Ships Annual Report, ICC International Maritime
Bureau, 2003, pp. 27–44.
18 Piracy & Armed Robbery Against Ships Annual Report, 2004, pp. 29–43.
19 S. Bateman, C. Z. Raymond and J. Ho, Safety and Security in the Malacca and
Singapore Straits: An Agenda for Action, IDSS Policy Paper, May 2006, p. 21.
20 A. Davis, ‘Piracy in Southeast Asia shows signs of increased organization’, p. 3.
21 Ibid.
22 R. Emmers, Non-Traditional Security in the Asia-Pacific: The Dynamics of
Securitisation, Singapore: Eastern University Press, 2004, p. 37.
23 ‘New brand of piracy threatens oil tankers in Malacca Straits’, ICC Commercial
Crime Services, 2 September 2003. Available online at: <http://www.iccwbo.
org/ccs/news_archives/2003/piracy_ms.asp> (accessed 6 September 2005).
24 K. McGeown, ‘Aceh Rebels Blamed for Piracy’, BBC News Online, 8 September
2003. Available online at: <http://newswww.bbc.net.uk/1/hi/world/asia-
pacific/3090136.stm> (accessed 21 May 2005).
25 S. Elegant, ‘Dire straits’, Time Asia, 6 December 2004, p. 2.
26 ‘Piracy and maritime terror in Southeast Asia’, IISS Strategic Comments, vol. 10,
issue 6, July 2004. Available online at: <http://www.iiss.org/newsite/stratcomfree.
php?scID=386> (accessed 22 May 2005).
27 E. M. R. Santos, ‘Piracy and armed robbery against ships: Philippine perspective’,
Paper delivered at ISEAS conference on Maritime Security, Maritime Terrorism and
Piracy in Southeast Asia, 23–4 September 2004, p. 5.
28 If a group becomes motivated by pecuniary rewards, the acts that it carries out no
longer fall under the definition of terrorism, which states that: terrorism is ‘the
unlawful use or threatened use of force or violence against people or property to
coerce or intimidate governments or societies, often to achieve political, religious, or
ideological objectives’. Available online at: <http://www.globalsecurity.org/
military/library/policy/army/fm/100–20/10020gl.htm> (accessed 1 July 2005).
29 S. Eklof, ‘Political piracy and maritime terrorism: a comparison between the Southern
Philippines and the Straits of Malacca’, Paper delivered at ISEAS conference on
Piracy in the waters of Southeast Asia 77
Maritime Security, Maritime Terrorism and Piracy in Southeast Asia, 23–4 September
2004, p. 5.
30 The use of piracy by terrorist groups must not be confused with acts of maritime
terrorism. It has been well documented that terrorist groups have resorted to criminal
activities in order to generate funds for their political campaigns. However, these
criminal acts are not in themselves acts of terrorism.
31 K. Bradsher, ‘Threats and responses: seaborne trade; warnings from Al Qaeda stir fear
that terrorists may attack oil tankers’, New York Times, 12 December 2002, p. 3.
32 Special press summary: piracy in the Malacca Straits, Virtual Information Centre, 16
February 2005, p. 7.
33 R. Dillon, ‘Piracy in Asia: a growing barrier to maritime trade’, The Heritage
Foundation Backgrounder, no. 1379, 22 June 2000. Available online at:
<http://www.heritage.org/Research/AsiaandthePacific/BG1379.cfm> (accessed 5
May 2005).
34 J. Boutilier, ‘The best of times, the worst of times: the global maritime outlook 2004’,
Paper delivered at IDSS conference on ‘Maritime Security in the Asia-Pacific’, 20–1
May 2004, p. 1.
35 M. Valencia, ‘The politics of anti-piracy and anti-terrorism responses in Southeast
Asia’, Paper delivered at ISEAS conference on Maritime Security, Maritime
Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 4.
36 J. Ho, ‘Maritime counter-terrorism: a Singapore perspective’, Paper presented at the
Observer Research Foundation Workshop on Maritime Counter-Terrorism, New
Delhi, 29 November 2004. Available online at: <http://www. observerindia.
com/reports/maritime/psingapore.pdf> (accessed 15 May 2005).
37 J. J. Brandon, ‘Protect Asia’s Shipping’, PacNet News Letter, 24 May 2002. Online.
Available online at: <http://www.csis.org/pacfor/pac0221A.htm> (accessed 16 May
2005).
38 J. Abhyankar, ‘Piracy, armed robbery & terrorism at sea in Southeast Asia; a global
& regional outlook’, Paper delivered at ISEAS conference on Maritime Security,
Maritime Terrorism and Piracy in Southeast Asia, 23–4 September 2004, p. 9.
39 J. Shutzer, Piracy in Indonesia. Available online at: <http://www.sais-
jhu.edu/bwelsh/JamiePolicyPaper.pdf> (accessed 30 November 2005).
40 K. Matthews, ‘Trade and shipping: a common interest of the Asia-Pacific’, Australian
Maritime Affairs, 10, 2003, p. 54.
41 For a comprehensive discussion on the topics of flags of convenience and the ISPS
Code, see chapters by G. Stølsvik and J. G. Christophersen.
42 G. G. Ong and J. Ho, ‘Maritime air patrols: a new weapon against piracy in the
Malacca Straits’, IDSS Commentary, 13 October 2005.
43 Remarks by Chief of Defence Force LG Ng Yat Chung at the Malacca Straits Patrol
(MSP) Joint Coordinating Committee Terms of References and Standard Operating
Procedure Signing Ceremony.
44 T. Sua, ‘For Hire: guardians of the sea; several firms now offer escort vessels and
mercenaries’, The Straits Times, 15 April 2005.
45 W. Soewriaatmadja, ‘Indonesia rules out private armed escorts in Malacca Straits’,
Bloomberg News. Available online at: <http://www.bloomburg.com> (accessed 3 May
2005).
46 N. Ronzitti, Piracy and international law, Leiden: Martinus Nijhoff Publishers, 1990,
p. 21.
7 Maritime terrorist threat
in Southeast Asia
Arabinda Acharya

Of late there has been a growing concern about the possibility of a ‘maritime
spectacular’ by terrorists in Southeast Asian waters. Security experts, government
officials and shipping companies are getting increasingly worried about the ter-
rorists’ potential for a disastrous maritime terrorist incident, targeting the critical
shipping lanes such as the Strait of Malacca and the Singapore Strait. There is
much apprehension that terrorists could team up with pirates to hijack a commer-
cial vessel or a cruise liner and use it as a floating bomb to ram against a maritime
target to cause widespread death and destruction or sink a big ship in a choking
point in the Strait of Malacca to disrupt global trade and commerce. The possibil-
ity of Al Qaeda and/or its associate groups smuggling a crude nuclear or
radiological device into a hijacked ship or loading the same into a container and
setting it off in a port city, shipping lane or waterway has also emerged as one of
the possible doomsday scenarios.1
On the other hand however, there appears to be no consensus on the part of
regional governments on how best to counter the maritime terrorist threat. While
they recognize that treatment of the issue, as a mere law enforcement problem of
the concerned states alone, could be inadequate, a consensus on a framework for
a multilateral and collaborative approach in this respect appears to elude the
region. Proposals, such as the Regional Maritime Security Initiative (RMSI) pro-
posed by the US Pacific Command have generated much scepticism, outrage and
rejection among some of the members of the Association of Southeast Asian
Nations (ASEAN). At the same time, the possibility of dealing with the maritime
threats within the framework of the ASEAN Security Community (ASC) or with
the ASEAN Peace Keeping Force seems remote, as the proposals put forth by
Indonesia appear, as of now, to be non-starters.

Terrorist threat in the maritime domain


Al Qaeda’s spectacular air attack on 11 September 2001 exposed vulnerabilities
in sectors such as shipping, port infrastructure, the supply chain and container
traffic, which hitherto have remained largely unprotected. However terrorist
incidents involving maritime interests were not unprecedented. The 1985 terror-
ist hijacking of the cruise ship Achille Lauro off the coast of Egypt brought the
Maritime terrorist threat in Southeast Asia 79
spectre of maritime terrorism, reminiscent of the terrorism in the skies, to public
attention. In November 1991, the Liberation Tigers of Tamil Elam (LTTE)
demonstrated its maritime terrorist capabilities by attacking Sri Lankan naval
supply ship Abheeta with an explosives-laden suicide craft at the KKS harbour in
northern Sri Lanka. The attack on USS Cole in October 2000 off the coast of
Yemen was a bold statement of both the intention as well as the capabilities of
terrorist groups to target high value maritime assets including naval vessels.
However, despite increasing awareness of the vulnerability of maritime assets
to terrorist attacks, maritime security did not receive sufficient attention until
September 11.2 There was little systematic research into maritime capabilities of
terrorist groups. This was mainly because terrorist incidents in the maritime sec-
tor have been very few and far between. Of all the international terrorist
incidents over a period of the last 30 years, only 2 per cent of the attacks involved
maritime assets.3 This low incidence rate could be attributed to several factors.
Most terrorists groups as well as terrorists themselves are ‘land lubbers’ and tend
to be tactically conservative. They resort to tried and trusted methods and opt for
the course that offers least resistance. Land-based targets or targets involving the
aviation sector offer leverage both in terms of greater ease of access and higher
visibility. Numbers of targets that can be attacked on land are usually large and
hence difficult to secure against attacks.4 Besides, terrorist attacks against mar-
itime interests require specialist equipments and skills – knowledge about boat
and ship operations and boarding techniques, to name a few. Most terrorist
groups with the exception of LTTE have little experience with, and expertise of,
the maritime environment. It was therefore believed that groups most likely to
operate in the maritime domain would be ‘those who possess specialized explo-
sives and naval skills, and have emerged from geographic regions where
maritime skills are prevalent’.5
Significantly, the maritime sector was not considered as attractive a target as
the ones on land or in the sky in terms of the impact of a terrorist attack. Terrorist
attacks are generally designed to seek attention for their cause. The coverage of
such attacks is greater on land.6 Attacks on ships do not make headlines the way a
hijacking of an aircraft does or as September 11 did. Unless the attack involves a
very high profile target such as the USS Cole or is sensational, as with Achille
Lauro, a terrorist incident involving the maritime sector is less likely to attract
international attention than media-accessible land targets.7
After September 11, new security challenges emerged in the maritime sector.
There is a growing interest among terrorist groups to target assets in the maritime
domain as evidenced from a number of attacks, as well as the planning for attacks,
involving groups such as Al Qaeda and its affiliated or associated groups such as
Jemmah Islamiyah (JI) and the Abu Sayyaf Group (ASG) in Southeast Asia.
Arrests of members of JI in Singapore in December 2001 revealed plots to attack
US naval facilities and ships in the region. The Malaysian Special Branch also
disrupted a plan by the Kumpulan Militan Malaysia (KMM), a terrorist group, to
ambush a US ship in 2001 in Malaysian waters. Senior Al Qaeda operative, Omar
al-Faruq (who was in US custody), also told officials of plans to attack an
80 Arabinda Acharya
American naval ship in Surabaya, Indonesia’s second largest port. In February
2002, terrorists planned to hijack a passenger airliner and crash it onto a US war-
ship in the Indian Ocean. In June 2002, Moroccan authorities foiled attempts to
attack merchant and naval vessels in the Strait of Gibraltar.8 In October 2002, ter-
rorists attacked French tanker Limburg carrying 158,000 tonnes crude oil in the
Gulf of Aden in Yemen. According to the US Energy Information Administration,
the 12 October 2002 Bali bombings raised concerns throughout the region that
other targets – including oil transit ‘chokepoints’ such as the Strait of Malacca –
could be targeted by terrorists.9 The terrorist attack on the SuperFerry 14 in
Manila by the ASG in February 2004 is one of the worst maritime disasters in
terms of the number of persons killed or missing.
The reasons for this increasing interest to target the maritime assets are many.
Terrorists’ opportunity to operate on land or in the sky is getting restricted due to
the hardening of land-based targets and the aviation sector especially after
September 11. By its very nature, the marine domain offers an opaque and largely
amorphous environment, which the terrorist groups can exploit. More often than
not, maritime assets are exposed to lax governance and poor security in vast areas
of un-policed waters.10 The maritime domain is the most unregulated of spaces
and the least policed.11 As Matthew Daley, the US Deputy Assistant Secretary of
State, put it, ‘as both the physical and political space in which they (the terrorists)
find sanctuary shrinks, as the noose tightens’, there is increasing likelihood of
them turning ‘to the most unregulated of spaces: the sea’.12 There is also a profu-
sion of targets in the maritime domain to choose from. These include warships,
cruise liners, tankers and other carriers, harbour or anchorage attacks, fixed land
based targets near ports – oil refineries, oil storage depots, other port infrastruc-
ture, energy pipelines and undersea cables – and the hijacking of commercial
passenger ships on high seas. Consequently, the maritime domain has emerged as
an alternative venue for high profile mass casualty attacks. Besides, September 11
demonstrated how the terrorist groups have a high propensity to acquire increasing
levels of tactical sophistication. This would enable terrorist groups to replicate
land capabilities in the maritime environment without much difficulty. The mar-
itime milieu provides terrorist organizations an opportunity to develop new
methods of assault.13
Another factor is the increasing nexus between terrorism and transnational
crime. The nexus or convergence between terrorism and transnational crime is
derived from the symbiotic relationship between terrorists and criminals, a
dynamic that allows both entities to profit financially.14 With an overall
decrease of state financial support for terrorism in the last two decades, com-
bined with the interdiction of terrorist finances, terrorist groups are
increasingly taking to crime to generate funds to sustain their activities. One of
the manifestations of this is the nexus between terrorism and piracy, which is
becoming an area of increasing concern.
The maritime domain also offers perceptual and psychological advantages for
terrorist operations. Targeting a high profile maritime asset would generate the
kind of attention that terrorists seek. Attacks in one place set precedents for other
Maritime terrorist threat in Southeast Asia 81
terrorist groups to emulate the action in other theatres. This copycat effect was
demonstrated in the USS Cole attack on 12 October 2000, which generated enor-
mous political capital and underscored the vulnerability of vessels at ports.
Within a month of the USS Cole attack, on 23 October 2000, LTTE suicide boats
breached the defences of Trincomalee, the most protected Sri Lankan naval port
and destroyed a fast personnel carrier. Similarly, on 7 November 2000, a Hamas
suicide boat attacked an Israeli naval craft, which however, exploded prematurely.
Significantly, there is an increasing awareness on the maritime sector as an
important conduit of global trade and commerce. There has been a very rapid
growth in global commercial maritime traffic with about 90 to 95 per cent of world
freight moving by sea. Disruption of the global trade and commercial activity by
selective targeting of strategically significant maritime assets – strategic water-
ways, port infrastructures, cruise liners or merchant shipping – fits nicely into the
calculation of terrorist groups such as Al Qaeda which seek to inflict the least-cost
and most effective damage on the enemy.15 This includes inflicting enormous eco-
nomic damage to the enemies of Islam – ‘a war against businesses, which will hit
the enemy where he does not expect us to’.16 Modern cruise liners are not unlike
floating World Trade Centers; ports are the hubs of the global trading network;
strategic sea lanes of communication (SLOCs) are the arteries of global commer-
cial activity. An interruption – in a major port or in a strategic sea lane such as the
Strait of Malacca – could upset the global supply chain for indefinite periods of
time. The supply chain is a highly interdependent web based on real-time informa-
tion and accuracy. Lead times for deliveries are extremely low. Disruption of cargo
movements and supply chains could have devastating consequences for the global
economy, even bringing some countries to the edge of economic collapse. As G.
Fosler, Senior Vice President and Chief Economist of the Conference Board, an
influential US business and economics think-tank put it:
The most serious economic consequence of the current global security threat
is the vulnerability of countries that depend on global trade to shocks from
actual supply interruptions. The threats of terrorism may achieve what the
anti-globalization forces have not – a significant slowdown, even decline, in
global trade and investment.17

Given the context as outlined above, it is not surprising that there is an increasing
concern about terrorist organizations, especially Al Qaeda and its network, turn-
ing to the maritime domain. Naval authorities are concerned about possible
suicide attacks against warships, while shipping companies and port operators
worldwide are worried about securing civilian ports and ships from terrorist
attacks. Besides, there is the possibility of terrorists making common cause with
pirates particularly in the context of the growing piracy menace in Southeast Asia,
with the threat particularly high in the waters between Indonesia, Malaysia, the
Philippines and Singapore. Singapore’s Deputy Prime Minister and Coordinating
Minister for Security Dr Tony Tan warned how terrorists may ‘seize control of a
tanker with a cargo of lethal materials, liquefied natural gas (LNG) perhaps, and
82 Arabinda Acharya
use it as a floating bomb against our port,’ causing catastrophic damage, not only
to the port but also for its people, ‘because our port is located very near to a
highly dense residential area. Thousands of people would be killed’.18

Maritime terrorist threat in Southeast Asia


Southeast Asia represents the ground zero of maritime threats, both from terrorism
and piracy. Following the 11 September 2001 attacks, Southeast Asia emerged as
what President Bush called the ‘Second Front’ in the global war on terror.19 The
region has been a host to several homegrown Islamic terrorist groups. Al Qaeda’s
influence has spread across the geographical spectrum of Southeast Asia with well-
entrenched and extensive networks.20 Many countries in the region – Malaysia, the
Philippines and Thailand – featured prominently in Al Qaeda’s most ambitious
plans, including the attack on USS Cole in October 2000 and the September 11
attacks, as now extensively catalogued by the report of the 9/11 Commission.21
The maritime environment of Southeast Asia is highly volatile. The peculiar
geographical position of the region with strategic waterways – the Strait of
Malacca, the Sunda Strait, the Lombok Strait and the Singapore Strait, to name a
few – has made the region highly important from the perspective of global trade
and commerce. Sea lanes and straits in the region share common characteristics;
they are located within or astride geographic archipelagos, inhibited with large
populations with less than ideal social, political and economic conditions.22
Narrow channels, shallow reefs and thousands of tiny islands that dot the archipel-
agic waters make it ideal for piracy and other waterborne crimes.23 The
1,000-kilometre-long Strait of Malacca is the busiest shipping lane in the world,
which links the Indian Ocean to the South China Sea and the Pacific Ocean. About
50 per cent of the world’s large ships – oil tankers, container vessels and other bulk
carriers – regularly transit the Strait of Malacca. Each day about 600 ships sail
through the strait, carrying Asian products to Western markets and bringing raw
materials to Asia. Half of Asia’s oil imports transit the Strait of Malacca.
According to an estimate by the US Energy Information Administration (EIA), as
the demand for energy in Asia, especially China grows, oil demand for these
nations will increase from about 15.1 million barrels per day in 2002 to nearly 33.6
million barrels per day by 2025. The bulk of the additional supply would transit
through the Strait of Malacca. According to an estimate by the US Energy
Information Administration (EIA), as the demand for energy in Asia, especially in
China grows, oil demand for these nations will increase from about 15.1 million
barrels per day in 2002 to nearly 33.6 million barrels per day by 2025. The bulk of
the additional supply would transit through the Strait of Malaccca.24
At the same time the region’s SLOCs with numerous critical ‘chokepoints’
have made it very vulnerable to disruption from terrorist attacks. The Phillips
Channel in the Singapore Strait, which is only 1.5 miles wide at its narrowest
point, is already a natural bottleneck.25 JI members, arrested by Singapore,
revealed that detailed planning was made for a seaborne bomb attack using a
small vessel against US ships travelling eastwards from Sembawang Wharf via
Maritime terrorist threat in Southeast Asia 83
Pulau Tekong in Singapore waters. ‘The markings on a topographical map recov-
ered from the possession of group member Khalim identified a strategic “kill”
zone where the channel was narrowest and where the ship would have had no
room to avoid a collision with a suicide vessel.’26 Security experts fear that there
could be attacks using small explosive-laden boats similar to the attack on USS
Cole or Limburg. Alternatively, terrorists could scuttle large ships at this point
that would force ships to sail much longer and more costly distances around
Australia.27

Piracy in Southeast Asia: a threat or vulnerability?


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

Table 7.1

Year Total worldwide Incidents in Percentage of


piracy incidents Southeast Asia the total
2002 370 170 45%
2003 445 189 42%
2004 325 166 51%
Data based on IMO piracy reports
84 Arabinda Acharya
master the navigation of large commercial vessels.30 Additionally, there were
reports about terrorist groups such as ASG trying to acquire knowledge about div-
ing and other underwater operations. An engineer kidnapped by the ASG from a
holiday resort in Sabah in 2000 and released in June 2004, revealed how the group
wanted instruction in diving.31 According to International Maritime Organization
(IMO) Secretary-General Efthimios Mitropoulos ‘an up-trend in crew abductions
could signal a move by terrorists to train themselves in operating and navigating
large commercial vessels’.32 The hijacked tugboats and barges may be getting
readied for use as floating bombs targeting other vessels, key installations, naval
bases or port facilities. Tugboats and barges maneuvering among the bigger ships
to load or unload cargo are a common sight in the straits. That would make them
an ideal cover for acts of terrorism.
Piracy could be a perfect mask for planning and preparing for maritime terror-
ism especially in a region where it has become a matter of common occurrence.
Given the number and the nature of pirate attacks and the volatile political climate
in the region, which is hospitable to terrorism, a convergence between piracy and
terrorism in Southeast Asia cannot be ruled out. Nevertheless, no clear consensus
about a direct nexus between the pirates and the terrorists in Southeast Asia has
emerged so far. Peter Chalk of the RAND Corporation believes that a conver-
gence between piracy and terrorism in Southeast Asia is a possibility given a
‘high incidence of piracy relative to the rest of the world’. Moreover, ‘the growing
terrorist problem within the region provides the background conditions that are
necessary for this convergence to take place’. Under these conditions, ‘pirates
could “contract out” their services to hijack ships which could then be used to
smuggle weapons and personnel or cause a collision to block shipping lanes in the
Strait of Malacca – a plot consistent with Osama bin Laden’s economic warfare
strategy against the Western capitalist system’.33 Others are sceptical about
whether pirates would partner terrorists or vice versa for business and fundamen-
talist reasons respectively. Acts of piracy and terrorism are not interchangeable as
their motives are different.34 ‘Although criminals and terrorists may operate in
similar ways, terrorists aim to use their violence in pursuit of strategic objectives,
and all too frequently, mass destruction.’35 It would thus be difficult to accept that
the criminal entrepreneurs engaged in acts of piracy would be willing to team up
with terrorists for acts of political violence. For the pirates this could be counter-
productive for their profession. It may however be possible that terrorists could
learn the tricks of the trade from the pirates to build up their capability in the mar-
itime sector. Thus in Southeast Asia, piracy is more vulnerable now and can be
exploited by the terrorists.

Terrorist groups with maritime terrorist capability


The number of groups with a maritime terrorist capability is few. The best known
are Provisional Irish Republican Army (PIRA), the LTTE, Al Qaeda, the Contras,
the Palestinian Groups – Popular Front for the Liberation of Palestine (PFLP) and
Hamas – the ASG, the Moro Islamic Liberation Front (MILF) in the Philippines
Maritime terrorist threat in Southeast Asia 85
and Gerakan Aceh Merdeka (GAM) in Indonesia. Of these, LTTE is the pioneer
in maritime terrorism with a state-of-the-art maritime terrorist organization.
LTTE has developed a maritime division, with some 3,000 personnel, between
100 and 200 surface and underwater vehicles, underwater demolition teams,
marine engineering and boat-building capabilities, and a maritime school and
academy. Its maritime tactics range from employment of land-based teams –
trained to place improvised explosive devices (IED) on ships – to terrorist divers,
attack craft, suicide craft and sea mines. Maritime terrorist technologies range
from scuba, sea scooters and speedboats to dual-use technologies such as the
Global Positioning Systems (GPS).36 Though LTTE does not operate outside Sri
Lanka, it is known to have shared its maritime technologies, tactics and tech-
niques with MILF and ASG. 37
In Southeast Asia, the groups that could use the maritime domain for terrorism
include the MILF, ASG, GAM, Jemaah Islamiyah and Al Qaeda. However, the
groups vary in terms of their intention and capabilities to stage maritime attacks.
The ASG based on Basilan Island is known to have conducted attacks around
the Sulu and Celebes Seas in the Southern Philippines, East Malaysia, and
Indonesian Kalimantan. The group also conducts maritime weapon smuggling
operations as far away as Sulawesi and Maluku in Indonesia;38 they are also con-
sidered a threat to the Timor Sea Joint Petroleum Development Area (JPDA) in
the East Timor Sea. The ASG operates speedboats, mostly wooden crafts with
minimal freeboard, multiple outboard engines, and shallow draft. The boats are
stealthy, fast, and able to easily navigate reefs and swamps; many are armed with
machine guns and are capable of outrunning the naval vessels. ASG is highly pro-
ficient in conducting brown (riverine) and green (coastal and archipelagic) water
operations during both night and day; its blue water capability is limited. It lacks
the maritime logistics necessary to sustain extended operations on high seas. ASG
leader Nadzmi Sabdullah, ‘Commander Global’, planned many maritime opera-
tions including the kidnapping raids on Sipadan in 2000 and Palawan in 2001.
Similarly, Galib Andang, ‘Commander Robot’, led the 2000 Sipadan maritime
kidnapping raid. ASG also claimed responsibility for the bombing of Davao City
port on 2 April 2003, which killed at least 16 people and injured 55.39 The explo-
sion was apparently timed to maximize casualties at a time when the wharf was
most busy with two passenger ships – Filipina Princess and Superferry 15 –
boarding and discharging passengers. The bombing in the Superferry 14 in
February 2004 was ASG’s maritime spectacular.
The MILF is the largest and most capable rebel group in the Philippines. It is
highly skilled at using IEDs with electronic detonators and has proven its ability
to use these devices against maritime targets such as ports and ferries. MILF has
contact with Indonesian Islamic groups such as JI and Wahdah Islamiyah by way
of its maritime smuggling network. MILF is capable of brown (riverine) and
green (coastal and archipelagic) water operations. It routinely uses maritime craft
for logistics operations – smuggling people, supplies, and weapons – in these
waters and has successfully conducted waterborne attacks on the Philippines mil-
itary and police outposts. MILF’s blue water capability however is extremely
86 Arabinda Acharya
limited. Although its forces are able to venture into the high seas beyond the
Philippine–Indonesian archipelago under certain weather conditions, they lack
the maritime logistics necessary to sustain extended operations.
GAM or the Free Aceh Movement in Indonesia’s Aceh province is notorious for
its maritime activities. It operates in the Strait of Malacca, the Singapore Strait,
West Malaysia, Southern Thailand and Myanmar, and ventures into the Indian
Ocean as far west as Sri Lanka. GAM is capable of brown (riverine) and green
(coastal and archipelagic) water operations. Although GAM maritime craft can
cross the high seas, they are not capable of blue water combat operations. GAM has
extensive contacts with smuggling syndicates (narcotics, people, stolen goods,
petroleum, and arms trafficking) and pirate gangs operating across the Strait of
Malacca.40 It has sympathizers among ethnic-Acehnese in Penang, Malaysia and
Islamic mariners in Southern Thailand, especially the ones belonging to the Pattani
United Liberation Organization (PULO). In September 2001, in a statement to the
Associated Press, GAM spokesman Tengku Ishak Daud asked all ships transiting
the Strait of Malacca to request protection from GAM.41 It has also claimed credit
for attacks on craft used to service offshore petroleum facilities.42 In addition, GAM
has been accused of pirating international shipping in the Straits of Malacca.43 The
accusation seemed to be supported by the drastic reduction in piracy in Indonesian
waters after the tsunami of 26 December 2004.44 The tsunami severely damaged the
coastal fishing villages, or kampongs, from which the attacks are launched. It is also
possible that many members engaged in piracy have died.45
Although there is no consensus about the estimate or even the existence of Al
Qaeda’s maritime fleet, the group’s intention as well as the capability to target
maritime assets is well documented. When Al Qaeda’s chief of naval operations –
Abdulrahim Mohammed Abda Al-Nashiri, nicknamed ‘Prince of the Sea’ – was
arrested, a 180 page file listing ‘targets of opportunity’ was in his possession. The
list, which contained plans to attack naval vessels and large cruise liners, rein-
forced concerns about plans for terrorist attacks against shipping. Al-Nashiri
worked with Tawfiq bin Attash, known as Khallad, a principal planner of the USS
Cole attack. Khallad attended the January 2000 Al Qaeda meeting in Malaysia in
which plans for the September 11 attacks and attacks against USS Cole and other
maritime targets including those in Southeast Asia were discussed.46
JI does not have a dedicated maritime organization. But it has used the mar-
itime domain extensively, especially for sending its recruits from Indonesia for
training in camps in the Philippines. JI also conducted covert surveillance of mar-
itime assets in Singapore, including oil refinery facilities on Jurong Island and a
US vessel at the Changi Naval Base.47 In recent months, increasing evidence of
coordination among the terrorist groups in the region – between JI, ASG and
MILF – are emerging. It was alleged that the attack on Superferry 14 in February
2004 was a joint operation involving JI, ASG and the Raja Sulaiman Movement –
a group gaining increasing visibility in the region.48
Thus even though the maritime terrorist capabilities of both Al Qaeda and JI
are limited and the groups have been rendered mostly incapable of attacks on
their own, the threat to maritime assets from these groups remains because of
Maritime terrorist threat in Southeast Asia 87
continuing networking, training and transfer of technology among the groups. It
is in this backdrop that Matthew Daley, the US Deputy Assistant Secretary of
State, said in Singapore that ‘we have begun to focus on the potential for a disas-
trous maritime terrorist incident’.49

Regional response to threats in the maritime domain


The ‘ungoverned littoral regions of Southeast Asia’, according to an assessment
by the US Pacific Command, are fast becoming a ‘fertile ground for exploitation’
by transnational threats including piracy and terrorism.50 The increase in piracy
related incidents in Southeast Asia prompted the IMO, the United Nation’s spe-
cialist maritime agency, to call for some form of international action as a ‘way
forward’ to secure the critical sea lanes in this part of the world. As E.
Mitropoulos put it, ‘the maintenance of unfettered navigation through the
Malacca Strait and within South-east Asia has generated many stakeholders –
more than just the littoral states themselves’.51 Unfortunately however, this has
become a major source of dissention among the littoral states of Indonesia,
Malaysia and Singapore. There is as yet no ‘sufficient common interest’ to work
with major users of the strait that could bring better protection both from the
pirates and the terrorists.52 A major portion of the Strait of Malacca is within the
territorial waters of Singapore, Malaysia and Indonesia. While foreign vessels
have unfettered use of the shipping lanes, the foreign governments whose ships
use the lanes have no authority to patrol or interdict pirates on their own.
Currently Indonesia and Malaysia share responsibility for the security of the sea
lanes in the Strait of Malacca. Although Malaysia and Singapore have largely
been effective in cracking down on pirates in the Southeast Asian waters, the
same has not been the case with Indonesia due to the lack of capability of, and
corruption in, the armed forces.
Against this backdrop Admiral Thomas B. Fargo of the US Pacific Command
suggested what he termed a ‘Regional Maritime Security Initiative’ (RMSI) to
‘facilitate information sharing and law enforcement activities among participating
nations’ and to develop the ‘right kinds of immediately available, expeditionary
forces’ to deal with crisis situations.53 Following up on his testimony before the US
Congress, Admiral Fargo detailed the initiative as one concerned with increased
situational awareness and information sharing, responsive decision making archi-
tectures, maritime interdiction capabilities, littoral security and interagency
cooperation. Its goal, according to Admiral Fargo, was to ‘develop a partnership of
willing regional countries to identify, monitor, and intercept transnational maritime
threats under existing international and domestic laws.54 This proposal met with
stiff resistance both from Indonesia and Malaysia. Both governments were upset
with the news reports that the US planned to send its marines and Special Forces to
combat terrorism in Southeast Asia and that Singapore was in talks with the US
about organizing joint patrols in the Strait of Malacca. Both Malaysia and
Indonesia emphasized that ‘ensuring security of the Strait of Malacca’ is their ‘sov-
ereign responsibility’,55 that at present they are ‘working well to maintain security
88 Arabinda Acharya
in the strait’ and consequently see no necessity for any outside intervention, the US
included.56 Thus the security of the strait has become a politically sensitive issue,
so much so that US Defence Secretary Donald Rumsfeld attending a conference in
Singapore in June 2004 categorically denied any US plans for patrolling the sea
lanes against the wishes of the littoral states concerned.57
Piracy in Southeast Asia has flourished under the ‘jurisdictional gray zones’ in
the region. Lack of cooperation among the nations in the region has hampered
anti-piracy operations, which is further complicated by the lack of trained mar-
itime police, inadequate equipment and inexperience with complicated concepts
of law enforcement such as the doctrine of hot pursuit. The countries in the region
continue to be sensitive about norms of sovereignty and non-interference.58 The
maritime police of one nation cannot pursue pirates into the territorial waters of
another. Under current IMO regulations, merchantmen are forbidden to carry
firearms for self-protection.
Years of regional discussion have produced ‘plenty of nicety, courtesy’ but too
little collective will to deal with sensitive security issues.59 In the ninth ASEAN
Summit in Bali in October 2003, Indonesia introduced the concept of an ASC. In
February 2004, Jakarta followed it up with the proposal to create an ASEAN
Peacekeeping Force designed to resolve regional conflicts and maintain security
in the ASEAN region. Ever since the Asian financial crisis, the credibility and
effectiveness of ASEAN and the ‘ASEAN way’ has come under much scepticism
which has ‘impeded cooperation in the region’. The ASC proposal seeks a frame-
work to enable members to ‘work together on sensitive security issues’ with
transborder implications consistent with the fundamental principles of ASEAN
cooperation without the constraints of the principles of non-interference and non-
intervention.60 Some of the members such as Singapore have reservations about
the concept of a security community, arguing that ‘ASEAN is not a security or
defense organization’,61 and have not endorsed the peacekeeping proposal yet.62
The use of private security firms such as Background Asia Risk Solutions to pro-
vide armed escort service to merchant shipping in the straits has evoked mixed
responses from the littoral states.63 Thus a consensus for a framework of security
in the Strait of Malacca still eludes the regional governments.
The management of SLOC security is a complex matter and requires a holistic
outlook and comprehensive responses.64 As the IMO Secretary-General put it, the
success of any effort to secure the sea lanes ‘will need, as a sine qua non condition,
the full consent, involvement and cooperation of the littoral states concerned’.65 To
be effective, the littoral states must be prepared to take ownership of any security
arrangement. This is tricky, given the fact that Indonesia is the least dependent of
the three littoral states on seaborne international trade. Its political climate also
remains highly volatile. It is ‘fiercely protective over any perceived challenge to its
sovereignty’,66 There is fierce domestic opposition, as evidenced from the report
that groups such as Majelis Mujahidin Indonesia (MMI) offered help to the
Indonesian navy to drive out the American fleet being sent to the Malacca Strait.67
Malaysia thinks that a foreign military presence would set it back in its ‘ideologi-
cal battle against extremism and militancy’.68 Recently Australia, Britain,
Maritime terrorist threat in Southeast Asia 89
Malaysia, New Zealand and Singapore decided to expand the scope of Five Power
Defence Agreement (FPDA) to incorporate ‘non-conventional threat scenarios
such as maritime security’ and to conduct anti-hijack, training and surveillance
exercises in the Strait of Malacca.69 This could be a good start but it could also be
ineffective, as it does not include Indonesia. Malaysia however has become recep-
tive to expanding cooperation with the US and others in terms of acquiring and
sharing quality intelligence under the RMSI initiative.70 Kuala Lumpur’s readiness
to work together with the US was reiterated with the renewal of its defence pact
with Washington in May 2005.71 Indonesia is also holding joint exercises with US
Navy Seals practicing anti-terrorism drills, including boarding ships and battling
pirates.72 With ‘points of convergence of interest’ gradually emerging, the use of
Article 43 of the 1982 UN Convention on the Law of the Sea, as put forth by
Singapore Ambassador-at-Large, Professor Tommy Koh, as a possible legal basis
for improving security in the straits holds much promise. Washington however is
not a signatory to the convention yet. But as Ambassador Koh hoped, ‘were the US
to become party to that convention, then we will have a common legal framework
for cooperation between littoral states and user states’.73 Revisions of the
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA) to include creating additional offences in the light of the war on
terror, conferring the right of a state to board vessels on the high seas when they
are suspected on reasonable grounds of carrying terrorist personnel or materials
could be one of the most important steps to establish international legal regimes to
deal with evolving threats in the maritime domain.74
In Southeast Asia no single country has the resources to deal effectively with
piracy or threats from terrorism. It is in this context that the Asian Shipowners
Forum strongly urged the governments of the littoral states to put aside jurisdic-
tional concerns and urgently conclude and implement multilateral cooperation
agreements and, if necessary, seek international assistance.75 Though the pri-
mary responsibility for the safety and security of the SLOCs remain with the
littoral states, other stakeholders such as the user states, shipping community
and international organizations such as the IMO need to cooperate and con-
tribute to the security efforts based on consultation and within the bounds of
international law.76 Coordinated naval patrols by Indonesia, Malaysia and
Singapore, and initiatives such as the Regional Cooperation Agreement on
Anti-Piracy in Asia are indicative of increasing levels of cooperation among the
states to secure the seas against both piracy and terrorism.77 But much remains
to be done.
The emergence of new security challenges tests the limits of existing interna-
tional norms. In this context, old concepts of sovereignty and jurisdiction need to
accommodate cooperative arrangements to combat terrorism, including maritime
terrorism.78 Along with implementing measures to secure the seas, it is also essen-
tial for the governments to work together to degrade the land capabilities of the
terror groups. In the context of the emerging challenge from low intensity mar-
itime operations (LIMO) capabilities of non-state actors, maritime
counter-terrorism operations would have to focus on ‘securing the littoral’. The
90 Arabinda Acharya
failure to deal with the piracy problem in the Southeast Asian seas, and to prepare
to prevent any possible terrorists’ ‘maritime spectacular’ could have grave impli-
cations for the political and economic stability in the region.

Notes
1 See M. Richardson, A Time Bomb for Global Trade: Maritime-Related Terrorism in
an Age of Weapons of Mass Destruction, Singapore: Institute of Southeast Asian
Studies, 2004.
2 M. MacBain, ‘Will terrorism go to sea?’ Sea Power, vol. 23, no. 1, January 1980, pp.
15–24; Brigadier B. A. H. Parritt, (ed.) Violence at Sea: A Review of Terrorism, Acts
of War and Piracy, and Countermeasures to Prevent Terrorism, Paris: ICC Publishing
S.A., 1986; and H. W. Stevens, ‘Maritime security in the United States: latent threats
and latent vulnerabilities’, Terrorism & Political Violence, vol. 2, no. 4, 1990, pp.
554–74.
3 P. Chalk, ‘Threats to the maritime environment: piracy and terrorism’, RAND
Stakeholder Consultation, Ispra, Italy, 28–30 October 2002, p. 9.
4 J. D. Simon, The Implications of the Achille Lauro Hijacking for the Maritime
Community, Santa Monica, CA: RAND Corporation, August 1986, p. 4.
5 B. M. Jenkins, B. Cordes, K. Gardela-Treverton and G. Petty, A Chronology of
Terrorist Attacks and Other Criminal Actions Against Maritime Targets, Santa
Monica, CA: RAND Corporation, September 1983, p. 4.
6 P. Wilkinson, ‘Terrorism and the maritime environment’, in Parritt (ed.) Violence at
Sea: A Review of Terrorism, Acts of War and Piracy, and Countermeasures to Prevent
Terrorism, p. 34.
7 Chalk, ‘Threats to the maritime environment’, p. 9.
8 T. Campbell and R. Gunaratna, ‘Maritime terrorism, piracy and crime’, in R.
Gunaratna (ed.) Terrorism in the Asia-Pacific, Singapore: Eastern Universities Press,
2003, pp. 77–80.
9 ‘Terror threats to supply chain might slam global economies’, The Wall Street
Journal, 11 March 2003.
10 Chalk, ‘Threats to the maritime environment’, p. 2.
11 R. Gunaratna, cited in ‘Terrorists may be rehearsing at sea’, The Straits Times, 19
April 2004.
12 ‘World’s ports fear attack by floating bomb’, The Times, 27 April 2004.
13 T. R. Shie, ‘Ports in a storm? The nexus between counterterrorism,
counterproliferation, and maritime security in Southeast Asia’, Issues & Insights, vol.
4, no. 4, Pacific Forum CSIS Honolulu, Hawaii, July 2004, p. 9.
14 F. Cilluffo, ‘Threat posed from the convergence of organized crime, drug trafficking,
and terrorism’, Congressional Testimony Before the U.S. House Committee on the
Judiciary’s Subcommittee on Crime, 13 December 2000. Available online at: <
http://www.csis.org/hill/ts001213cilluffo.html> (accessed 18 May 2005).
15 See A. al Zawarhi, ‘The knights under the prophets banner – meditations on the
Jihadist movement’, London Al-Sharq al-Awsat, 2 December 2001.
16 ‘Bin Laden still alive’, The Tribune, 11 July 2002. Available online at:
<http://www.tribuneindia.com/2002/20020711/world.htm#6> (accessed 20 May
2005).
17 Cited in ‘Terror threats to supply chain might slam global economies’.
18 Cited in ‘Homeland Security Report’, Homeland Security Group, no. 137, 14 June
2004. Available online at: <http://www.mipt.org/pdf/hsr137.pdf> (accessed 19 May
2005).
19 J. Gershman, ‘Is Southeast Asia the second front?’ Foreign Affairs, vol. 4, no. 79,
July/August 2002, 60–74.
Maritime terrorist threat in Southeast Asia 91
20 R. Gunaratna, Inside Al Qaeda: Global Network of Terror, New York: Columbia
University Press, 2002, p.175.
21 See The 9–11 Commission Report, Final Report of the National Commission on
Terrorist Attacks Upon the United States, Official Government Edition, US
Government Printing Office, Washington, DC, 2004.
22 Vice-Admiral M. Roy, ‘Sea lanes of communication, an Indian perspective’, in Andrew
Forbes (ed.) The Strategic importance of Seaborne Trade and Shipping, Papers in
Australian Maritime Affairs, no.10, Royal Australian Sea Power Centre, 2003, p. 88.
23 ‘The Malacca Straits’, Steve’s Vital Maritime Canals. Available online at:
<http://www.geocities.com/uksteve.geo/canal6.html> (accessed 17 May 2005).
24 ‘Conference summary, salient issues and key recommendations’, Mima conference
on ‘The Strait of Malacca: Building a Comprehensive Security Environment’, 14
October 2004. Available online at: <http://www.mima.gov. my/mima/htmls
/papers/pdf/MNB/nizam-som04.pdf> (accessed 19 May 2005).
25 ‘World oil transit chokepoints’, EIA Country Analysis Briefs, April 2004. Available
online at: <http://www.eia.doe.gov/emeu/cabs/choke.html> (accessed 26 May 2005).
26 ‘Keynote address of Professor S. Jayakumar, Deputy Prime Minister and Law Minister
of the Republic of Singapore’, at the 2005 conference on Law of the Sea: Issues in the
East and South China Seas, held in Xiamen, 12 March 2005, reproduced in ‘Law of the
Sea has to keep up with terrorism threats, The Straits Times , 16 March 2005.
27 R. Halloran, ‘What if Asia’s pirates and terrorists joined hands?’ South China
Morning Post, 17 May 2003.
28 See J. S. Burnett, Dangerous Waters: Modern Piracy and Terror on the High Seas,
USA: Penguin, 2002.
29 Cited in ‘Terrorists may be rehearsing at sea’, The Straits Times, 19 April 2004.
30 ‘Rise in crew kidnappings may signal terror training’, The Business Times, 2 April 2004.
31 ‘Terror threat swells at sea’, WorldNetDaily, 8 June 2004.
32 ‘Terrorists may be learning to navigate ships from abducted crew’, Agence France
Presse, 25 May 2004.
33 ‘Terrorists Could Join Forces with Pirates in Malacca Strait’, Agence France Presse,
30 April 2004.
34 See A. J. Young and M. J. Valencia, ‘Conflation of piracy and terrorism in Southeast
Asia: rectitude and utility’, Contemporary Southeast Asia, vol. 25, no. 2, 2003,
269–83.
35 E. Mitropoulos, Secretary-General of IMO, cited in ‘Terrorists may be learning to
navigate ships from abducted crew’.
36 R. Gunaratna, ‘The asymmetric threat from maritime terrorism’, Jane’s Navy
International, vol. 106, no. 8, October 2001, 24–9.
37 B. Desker and K. Ramakrishna, ‘Forging an Indirect strategy in Southeast Asia’, The
Washington Quarterly, vol. 25, no. 2, Spring 2002, p. 165.
38 ‘Abu Sayyaf Group primer’, Pacific Command Virtual Information Center, 27
September 2001.
39 ‘Abu Sayyaf owns Davao airport blast’, Sun-Star Network, 5 March 2003. Available
online at: <http://www.sunstar.com.ph/static/net/2003/03/05/abu.sayyaf.owns.davao.
airport.blast.html> (accessed 19 October 2006).
40 ‘Eye of the storm’, TimeAsia.com, 11 February 2002. Available online at:
<http://www.time.com/time/asia/features/malay_terror/cover.html> (accessed 26
May 2005).
41 ‘Indonesian rebels threaten straits’, Associated Press, 2 September 2001.
42 For example, see ‘Gunmen abduct nine Indonesians from boat in Aceh’, Reuters
Newswire, 1 July 2002.
43 K. McGowan, ‘Aceh rebels blamed for piracy’, BBC News Online, 8 Sept 2003.
Available online at: <http://news.bbc.co.uk/2/hi/asia-pacific/3090136.stm> (accessed
26 July 2004).
92 Arabinda Acharya
44 B. Desker, ‘Protecting the Malacca Straits’, IDSS Commentaries, (10/2005), 3 March
2005.
45 P. Mukundan, Director of the International Maritime Bureau, cited in J. S. Burnett,
‘The next 9/11 could happen at sea’, The New York Times, 22 February 2005.
46 See The 9–11 Commission Report, Final Report of the National Commission on
Terrorist Attacks Upon the United States, Official Government Edition, Washington,
DC: US Government Printing Office, 2004, pp. 12–13, 130, 132, 148.
47 ‘Singapore and their Targets’, The Straits Times, 19 September 2002.
48 J. Hookway, ‘A dangerous new alliance’, Far Eastern Economic Review, 6 May 2004.
49 Cited in ‘Asia must guard its seas from terrorists’, The Straits Times, 23 April 2004.
50 ‘Malaysia doesn’t want outside help to patrol Malacca Straits’, Associated Press
Worldstream, 8 April 2004.
51 ‘Terror-piracy nexus: IMO seeks global action’, The Business Times, 21 May 2004.
52 M. Richardson, ‘How to protect the Malacca Straits from terrorists’, The Straits
Times, 28 April 2004.
53 Testimony of Admiral T. B. Fargo, Commander, US Pacific Command, before the
House Armed Services Committee, United States House of Representatives
Regarding US Pacific Command Posture, 31 March 2004. Available online at:
http://www.house.gov/hasc/openingstatementsandpressreleases/108thcongress/04–0
3–31fargo.html (accessed 22 May 2005).
54 Admiral T. Fargo, ‘Military operations and law conference’, Victoria, British
Columbia, US Pacific Command, 3 May 2004. Available online at: <http://
www.pacom.mil/speeches/sst2004/040503milops.shtml> (accessed 22 May 2005).
55 ‘Malaysia rebuffs US sea force plan’, The Age, 6 April 2004. Available online at:
<http://www.globalpolicy.org/empire/intervention/2004/0406usmalacca.htm>
(accessed 23 May 2005).
56 ‘Indonesia joins Malaysia in shunning US help in Malacca Straits’, Associated Press
Worldstream, 12 April 2004.
57 ‘Officials clarify maritime initiative amid controversy’, American Forces Press
Service, 4 June 2004. Available online at: http://www.defenselink.
mil/news/Jun2004/n06042004_200406048.html (accessed 23 May 2005).
58 Malaysia, for instance, while recognizing the need for shared responsibilities,
reiterated that this ‘must not be at the expense of the sovereignty and territorial
integrity of the littoral states’. See ‘Malaysia will cooperate on Malacca Straits
security’, Agence France Presse, 8 June 2004. Available online at: <http://www.
singapore-window.org/sw04/040608af.htm> (accessed 24 May 2005).
59 D. Urquhart, ‘Malacca Straits needs US support’, The Business Times, 10 April 2004.
60 L. C. Sebastian and J. I. Chong, ‘Towards an ASEAN Security Community at Bali’,
Perspectives, Institute of Defence and Strategic Studies, October 2003.
61 ‘ASEAN makes good progress on security community proposals’, Association of
Southeast Asian Nations, 5 April 2004. Available online at: <http://www.aseansec.org
/afp/39.htm> (accessed 30 May 2005).
62 ‘Singapore’s view is that for the time being the peacekeeping force idea is probably
not the right time now, precisely because ASEAN is not a security or defense
organization’, Singapore’s Foreign Minister S Jayakumar, cited in Daily Times, 3 May
2004. Available online at: <http://www.dailytimes.com.pk /default.asp?page=story_
5–3–2004_pg4_14> (accessed 23 May 2005).
63 ‘Malaysia furor fails to deter Malacca escort security firm’, Lloyd’s List, 4 May 2005.
64 ‘Conference summary, salient issues and key recommendations’, Mima conference
on ‘The Strait Of Malacca: Building a Comprehensive Security Environment’, 14
October 2004. Available online at: <http://www.mima.gov.my/mima/htmls/papers
/pdf/MNB/nizam-som04.pdf> (accessed 30 May 2005).
65 ‘Terror-piracy nexus: IMO seeks global action’, The Business Times, 21 May 2004.
66 D. Urquhart, ‘Malacca Straits needs US support’.
Maritime terrorist threat in Southeast Asia 93
67 ‘The US troops and their allies are entering Indonesian waters without permission and
we, together with the Indonesian navy, will be ready to drive them out until the last
drop of blood is spilled’, MMI Director of Data and Information Fauzan Al-Anshari,
cited in ‘Militant group says ready to help “drive out” US fleet from Malacca Strait’,
BBC News, 21 May 2004.
68 ‘KL open to talks on maritime security plan’, The Straits Times, 7 June 2004.
69 ‘5 Powers to focus on training to combat maritime terrorism’, Japan Economic
Newswire, 7 June 2004.
70 ‘Malaysia pledges to wipe out maritime piracy, work with US against terror’, Agence
France Presse, 7 June 2004.
71 ‘Malaysia and US renew defense pact, discuss Malacca Strait security’, Channel
News Asia, 9 May 2005. ‘Malaysia and US Renew Defense Pact, Discuss Malacca
Strait Security’, Channel News Asia, 9 May 2005, Available online at:
<http://www.channelnewsasia.com/stories/afp_asiapacific/view/146684/1/.html>
(accessed 25 October 2006)
72 ‘US Navy SEALs in Indonesia Anti-terrorism Drill’, Jakarta Post, 9 May 2005.
Available online at: <http://www.indonesia-ottawa.org/information/ details. php?
type=news&id=896> (accessed 25 October 2006)
73 ‘KL open to talks on maritime security plan’, The Straits Times, 7 June 2004.
74. ‘Terrorism and wrecks dominate talks: the latest session of the IMO Legal
Committee’, Lloyd’s List, 18 May 2005.
75 ‘Asian nations told to unite in piracy fight’, Lloyd’s List, 11 May 2005.
76 ‘Mindef states its stand on straits safety’, The Straits Times, 2 May 2005.
77 ‘Cooperation vital for maritime security,’ The Straits Times, 13 March 2005.
78 ‘Need to update legal regimes’, The Straits Times, 14 March 2005.
PART III

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

The challenge of regional regimes


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

Maritime regimes
International regimes are encountered throughout maritime and security studies.
This is true of all areas of human activity where no single decision-making entity
holds exclusive power.3 It is the nature of the maritime domain that the rights and
duties of states invariably involve compromises. The oceans and seas of the world
are the great ‘global commons’ where a careful balance is necessary between dif-
ferent uses of the sea, as well as between the interests of different parties. This is
true both of the high seas and the roughly one-third of the world’s oceans that are
now enclosed as exclusive economic zones (EEZs). The EEZ regime itself reflects
a similar careful balance between the rights and duties of the coastal state on the
one hand, and the rights and duties of user states on the other.4
It is difficult for countries to take a truly independent national view of the
problems, which can arise with using the sea. Fences cannot be established in the
sea in the same way as border fences are established on land. The sea is a common
asset – and potentially a common enemy. It is the fundamental medium of inter-
national commerce, but its problems follow no national boundaries. For example,
the freedom and safety of navigation, the prevention of marine pollution, the con-
servation of fish stocks, and the mitigation of maritime natural hazards (such as
cyclones and tsunamis) are issues of concern to most countries. In implementing
policies on these issues, countries must take into account the interests and rights
of their neighbours, as well as those of other nations who legitimately send their
ships into and through waters under national sovereignty.
The principles and norms of cooperation in managing joint interests need to be
institutionalized in the form of a regime for dealing with a particular issue area.5
Regimes provide benefits and reduce costs in a way that no single state party act-
ing on its own could achieve.6 They involve compromises and reduce the risks of
‘a tragedy of the commons’, where in the short term, individuals might gain but in
the long term, everyone loses. However, countries have to recognize the benefits
and costs of regime participation. They will also apply weightings to the cost and
benefits with longer-term benefits often being devalued in comparison with
shorter-term costs. For example, some Southeast Asian countries appear con-
cerned that participation in some maritime security regimes might involve a loss
of sovereignty and independence, and this outweighs whatever might be the
longer-term benefits of regime participation.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) itself is
an international regime but there are a host of other maritime regimes for shipping,
fishing, seabed mining, marine environmental protection, sea dumping, the pre-
vention of ship-sourced pollution, search and rescue, and so on. Historically it may
have been possible to speak of a single regime for the oceans, or more correctly the
Building good order at sea in Southeast Asia 99
high seas.7 The classical regime of the oceans was simple with sovereignty of the
coastal state extending over a narrow territorial sea beyond which were the high
seas, where the freedoms of the high seas applied. Navigation and fishing were the
two traditional uses of the seas and regimes to cover them were technical (e.g. rules
for the prevention of collisions at sea in the case of navigation) and relatively
straightforward. However, contemporary users of the seas face a variety of com-
plex rules, norms, principles and decision-making procedures, which when put
together in a particular issue area (e.g. maritime security or maritime safety), form
an international regime. The extent of international regulation of the oceans and
seas has increased dramatically in recent decades.
These new regimes have involved the development of much international law
and the establishment of a variety of international organizations.8 While these
regimes may reflect thinking at the global level, they invariably require implemen-
tation at a regional and national level to be effective. Apart from UNCLOS itself,
the main maritime regimes, which are the concern of this paper, are those provided
for maritime security by the International Maritime Organization (IMO), particu-
larly the International Ship and Port Facility Security (ISPS) Code, other
amendments to the 1974 Safety of Life at Sea (SOLAS) Convention,9 and proposed
amendments to the 1988 Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation (SUA) and its Protocol covering offshore facili-
ties; and for maritime safety through both SOLAS and the 1979 Convention on
Maritime Search and Rescue (SAR Convention).10 All these conventions place a
significant premium on cooperation for their successful implementation.
There is a close relationship between maritime safety and maritime security.
While a distinction between the two meanings is apparent in English, in some lan-
guages they are almost synonymous.11 In the past it was normal in the shipping
sector to make a distinction between safety and security. The SOLAS Convention,
for example, related to safety at sea while the SUA Convention related to security
at sea. However, this has all changed following 9/11 and safety and security have
now become ‘inextricably linked’.12 Chapter XI of the SOLAS Convention has
been re-titled ‘Special measures to enhance maritime safety and security’, and
Part II of this chapter in the Convention is entitled ‘Special measures to enhance
maritime security’. Even the IMO has changed its motto from ‘safer ships,
cleaner oceans’ to ‘safe, secure and efficient shipping on clean oceans’ to reflect
this new emphasis. The operational measures to provide security at sea invariably
have the collateral benefit of also providing for safety at sea.

UNCLOS
All regimes for law and order at sea are based on the framework provided by
UNCLOS. This large and complex convention provides the constitution for the
oceans and the basis for the types of jurisdiction that a country may exercise at sea
in its various roles as a coastal, port or flag state. It sets out the rights and duties
of a state with regard to the various uses of the oceans and prescribes the regime
of maritime zones that establish the nature of state sovereignty and sovereign
100 Sam Bateman
rights over ocean space and resources. UNCLOS also provides the principles and
norms for navigational rights and freedoms, flag state responsibility, countering
piracy, rights of visit, hot pursuit and regional cooperation, all of which are rele-
vant to the maintenance of security and good order at sea.
UNCLOS now has a great many state parties but its effectiveness is still open
to question in a number of areas. Many examples can be found of apparent non-
compliance with UNCLOS. These include the uses and abuses of straight
territorial sea baselines, a reluctance to acknowledge the rights and duties of other
states in the EEZ, and the failure of flag states to observe the ‘genuine link’
requirement in UNCLOS Article 91 and to fulfil their duties as flag states under
Article 94. The general problem of countries in the Asia-Pacific acting inconsis-
tently with UNCLOS has been described as follows:
For those member countries of CSCAP which are now parties to the UNC-
LOS, several of them have enacted maritime legislation and made maritime
claims to sovereignty, sovereign rights or jurisdiction over ocean areas in the
Asia-Pacific region, that are considered inconsistent with the terms of the
UNCLOS. These conflicting/overlapping/excessive maritime claims have the
potential to retard or block the process of building an ocean governance
regime for the Asia-Pacific region. They also have the potential to disrupt
regional stability and peace.13

UNCLOS has some serious limitations as the foundation for a regional maritime
security regime for East Asia. In part these are a consequence of the relatively
complex maritime geography of the region with its numerous islands, archipelagos
and narrow shipping channels. However, the limitations also flow from the com-
plexity of UNCLOS itself, its numerous ‘built in’ ambiguities, and the pace of
development of the law of the sea. These factors reflect generalized global consid-
erations rather than the peculiarities and requirements of particular regions of the
world, and with Europe in the lead on environmental issues in particular, there is a
trend for aspects of the international law of the sea to be interpreted in a regional
context. But countries in East Asia exhibit many varying perspectives of key areas
of the law of the sea and no clear regional view is evident. It also remains a matter
of concern that the United States and Thailand are still not parties to UNCLOS,
and perhaps the US is becoming even further away from ratification.
It is a major limitation of UNCLOS as a foundation for a regional maritime
security regime that the US remains outside the Convention. The main problem the
US had initially with ratification was the attitude of the powerful mining lobby in
the US to Part XI of UNCLOS dealing with deep seabed mining. More recently,
however, the concern has shifted to the security environment with perceptions that
ratification of UNCLOS could inhibit maritime operations by forces of the US.14
UNCLOS was formulated in a period when there was less concern for the
health of the marine environment than there is at present. Norms and principles for
the preservation and protection of the marine environment have multiplied expo-
nentially over the last twenty years or so. It is not surprising therefore that many of
Building good order at sea in Southeast Asia 101
the apparent ‘gaps’ in UNCLOS arise in the area of environmental protection. The
navigational regimes in UNCLOS provide an example of the underdeveloped level
of concern for the marine environment evident in the 1970s. The regimes of straits
transit passage and archipelagic sea lanes (ASL) passage apply to ‘all ships and
aircraft’ and there is no direct right of the coastal or archipelagic state to prevent
the passage of a vessel that might be perceived to be a serious threat to the marine
environment. Legal scholars have pursued this issue extensively over the years but
so far there is not a satisfactory resolution of the issue.

Territorial sea baselines


Despite the old adage that ‘good fences make good neighbours’,15 sometimes it is
physically impossible, for a variety of reasons, to build good fences, particularly
in the sea. This is the case in East Asia mainly because the geography of the
region, with its concave areas of coast, numerous islands and longstanding his-
toric claims, means that many boundaries, or at least their end points or turning
points, will require the agreement of three, or even more, countries. However, it is
also due to the liberal interpretations by regional countries of the principles in
UNCLOS for drawing straight territorial sea baselines.
Territorial sea baselines are the start-point from which all maritime zones are
measured. Unfortunately, there is scope for countries to declare ‘excessive’ base-
lines that have the effect of extending their claimed maritime jurisdiction.
Territorial sea baselines may be either normal or straight. Normal baselines are
less controversial under international law.16 They are simply the low-water line
directly corresponding to the coastline marked on large-scale charts officially rec-
ognized by the coastal state.17 These baselines are the starting point for
establishing a state’s jurisdiction over maritime jurisdictional zones. They close
off internal waters of the coastal state concerned and provide the inner limit of the
offshore zones (i.e. territorial sea, contiguous zone, EEZ and continental shelf). In
turn, they establish the outer limit of these zones. It follows that if states can shift
baselines further out to sea, the area of the offshore zones will be automatically
extended without altering the maximum width of these zones as allowed under
international law. Territorial sea straight baselines are not to be confused with
archipelagic baselines that are subject to the different rules.
UNCLOS Article 7 establishes three criteria for drawing straight baselines.18
First, they should only be used in localities ‘where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast in its imme-
diate vicinity’.19 Second, ‘[t]he drawing of straight baselines must not depart to
any appreciable extent from the general direction of the coast, and the sea areas
lying within the lines must be sufficiently linked to the land domain to be subject
to the regime of internal waters’.20 Third, ‘account must be taken, in determining
particular baselines, of economic interests peculiar to the region concerned, the
reality and the importance of which are clearly evidenced by long usage’.21
These seemingly strict criteria are interpreted very loosely or even ignored in the
practice of states,22 particularly so in East Asia. Scovazzi has suggested that there
102 Sam Bateman
is a customary trend towards flexible and liberal criteria in drawing straight base-
lines and that the US is the only country resisting this trend,23 but this has been
strongly disputed by Roach.24
Coastal states have a powerful incentive to make maximum use of straight
baselines as it enables them to maximize the extent of their maritime jurisdic-
tion. It may also be advantageous in maritime boundary delimitation.25 As
Prescott has explained:
It seems probable that the unjustified use of straight lines is primarily
designed to increase the width of the combined zone of internal and territor-
ial waters for security purposes. States may also use such lines to gain an
advantage in negotiating common boundaries with neighbouring states.26

Almost all East Asian countries (i.e. Cambodia, China, Japan, Malaysia,
Myanmar, North Korea, the Philippines, South Korea, Thailand and Vietnam)
have used a straight baseline system. In most cases, the use of straight baselines
has been controversial and judged by the US, in particular, to be ‘excessive’, and
thus subject to diplomatic protest, as well as the operational assertion of naviga-
tional rights by US ships under the Freedom of Navigation (FON) programme.
Generally the use of straight baselines in the region confirms the view expressed
by Prescott in that the concept of straight baselines has been distorted beyond
recognition by increasingly liberal interpretations of the key criteria in UNCLOS
Article 7.27

Maritime zones
Prior to UNCLOS, the only maritime zones recognized under international law
were internal waters, territorial sea, contiguous zone, continental shelf and the high
seas. UNCLOS further defined the regimes for these zones, including rules for
determining the territorial sea baselines from which all maritime zones are mea-
sured, and introduced two new types of zone: the EEZ and archipelagic waters.
In the EEZ, coastal states have sovereign rights over natural resources, both
living and non-living, and other economic activities, such as the production of
energy from water current and winds. They also have jurisdiction with regard to
the establishment and use of artificial islands, installations and structures, marine
scientific research, and the protection and preservation of the marine environment
and its resources (including the conservation of species). All other states have
freedom of navigation and overflight in the EEZ, as well as the freedom to lay
submarine cables and pipelines.
The EEZ regime is problematic because jurisdictional aspects of the regime
are either uncertain or not universally accepted, and because it requires countries
to delimit new maritime boundaries with each other – in many instances where
sovereign interests had not previously overlapped. Some countries, including ones
in Southeast Asia, have claims to restrict certain activities in the EEZ, particularly
military activities and surveys, which are not agreed by others. The provisions for
Building good order at sea in Southeast Asia 103
these activities were intentionally left ambiguous in UNCLOS due to the impossi-
bility of achieving agreement on the balance of interests between user states and
coastal states. It is not surprising, therefore that disputes involving these issues
are occurring more frequently, including in Southeast Asian waters.
The regime of the archipelagic state is of great importance in Southeast Asia as
the two largest and most important archipelagic states in the world, Indonesia and
the Philippines, are in Southeast Asia. UNCLOS Articles 46 and 47 set out the
main criteria that should be met before a country can claim the status of an archi-
pelagic state.28 If these criteria are met, the archipelagic state may draw
archipelagic baselines around the outer limits of the islands and drying reefs com-
prising the archipelago. Waters within those baselines are archipelagic waters
over which the archipelagic state exercises full sovereignty not unlike the sover-
eignty exercised by all coastal states over internal waters and the territorial sea.

Navigational rights and freedoms


Innocent passage was the only passage regime that existed prior to UNCLOS but
the extension of the width of the territorial sea and acceptance of the regime of the
archipelagic state led to two new regimes being introduced: transit passage
through straits used for international navigation, and ASL passage through archi-
pelagic waters. Innocent passage applying to the territorial sea and to archipelagic
waters outside of ASLs is the most restrictive of these passage regimes. It may be
suspended by the coastal state; restricts ships from a range of activities, including
exercises and operating aircraft; and requires submarines to travel on the surface
and show their flag.29 Transit and ASL passage are much more liberal regimes that
include overflight and cannot be suspended by a coastal state. They provide max-
imum rights to ships and aircraft to travel in their normal modes (e.g. submarines
may transit submerged). These reflect the consideration implicit in these regimes
that the international community should continue to enjoy the same rights and
freedoms as before the extension of the territorial sea to 12 nautical miles and
agreement on the regime of the archipelagic state.
Archipelagic states and coastal states adjoining a strait used for international
navigation have considerable service responsibilities towards the vessels passing
their shores (e.g. navigational aids, hydrographic charts and other navigational
information, search and rescue services, and marine pollution contingency
arrangements). Furthermore, it is now generally accepted that this responsibility
extends to the provision of security against the threats of piracy and maritime ter-
rorism. However, UNCLOS makes no provision whatsoever regarding any form
of cost-recovery for these services and the imposition of a fee for service would
amount to denying, hampering or impairing the right of transit or ASL passage,
and thus contrary to UNCLOS Article 42(2).
UNCLOS Article 43 addresses this issue of burden sharing in respect of straits
used for international navigation but not for ASLs. This article provides a regime
for ‘burden sharing’ between user states and states bordering a strait on the provi-
sion of navigational and safety aids and the prevention of marine pollution. In the
104 Sam Bateman
case of the Malacca Strait, so far it has only been Japan that has contributed to the
costs of safety and security in the strait, although there have been recent indica-
tions that China may also be prepared to do so. A Malaysian maritime expert has
suggested that China, Hong Kong, Liberia, the Philippines, South Korea, Taiwan
and Thailand should all contribute to the costs although there would be a problem
of devising a mechanism for cost-recovery.30 A basic question is whether the con-
tribution should come from the governments or the shipowners. Considerations of
‘burden sharing’ were on the agenda on the high level conference on safety and
security in the Malacca Straits that was held in Jakarta in September 2005.

Flag state responsibilities


UNCLOS Article 91 requires that every state shall fix conditions for the right to
fly its flag, and there must be a ‘genuine link’ between the state and the ship.
However, ships flying a ‘flag of convenience’31 will rarely have such a link with
the flag state, and the relevant ship registry may not even be in the country con-
cerned. Cambodia and Myanmar are Southeast Asian countries that have been
declared ‘flag of convenience’ countries by the International Transport
Workers’ Federation.32
UNCLOS Article 94 requires that flag states should effectively exercise their
jurisdiction and control in administrative, technical and social matters over ships
flying their flag. However, much of the breakdown in law and order at sea can be
traced to the fact that some flag states are not discharging their responsibilities in
accordance with this article when ships flying their flag commit offences at sea.
This is the case for virtually all categories of maritime crime, but particularly ille-
gal fishing, drug and arms trafficking, offences against the environment and
human smuggling. Vessels committing these crimes usually are registered ships
under the jurisdiction of a flag state rather than vessels without nationality.

Piracy
UNCLOS includes a specific regime for countering piracy on the high seas in
its Articles 100–107. These extend to the EEZs of coastal states by application
of UNCLOS Article 58(2). However, this regime does not apply in circum-
stances where the act of armed robbery or seizure of a vessel is within the sole
jurisdiction of one state or another. This is the case where the act occurs within
the territorial sea, archipelagic waters or internal waters (where these zones are
as defined in UNCLOS), or when the act is committed by persons who are
already onboard the ships as passengers, crew members or stowaways. In the
former situation, the act is within the sole jurisdiction of the relevant coastal
state, while the latter circumstances are within the jurisdiction of the flag state
of the vessel affected. Similar considerations apply to acts of terrorism under
current international law.
Building good order at sea in Southeast Asia 105
Rights of visit
UNCLOS Article 110 identifies the circumstances when a foreign flag vessel can
be stopped on the high seas, i.e. if the flag state gives its permission, if the ship is
stateless, if it is a pirate ship, if it is transporting slaves, or if it is being used for
unauthorized broadcasting. Outside of these circumstances, there is no legal justi-
fication for stopping a ship on the high seas, or in the EEZ if the vessel is not
suspected of an offence covered by the rights and duties of a coastal state in its
EEZ (i.e. for a resource-related or environmental offence). However, it has been
an objective of the US in the context of the Proliferation Security Initiative (PSI)
and amendments to the SUA convention to broaden the circumstances in which a
ship may be stopped on the high seas or in an EEZ to include if it is suspected of
terrorism or carrying weapons of mass destruction (WMD), their delivery sys-
tems or related materials.

Hot pursuit
UNCLOS Article 111 sets out the regime for hot pursuit. Hot pursuit of a for-
eign ship may be undertaken when the competent authorities of the coastal state
have good reason to believe that the ship has violated the laws and regulations
of that state. Such pursuit must be commenced when the foreign ship or one of
its boats is within the internal waters, the archipelagic waters, the territorial sea
or the contiguous zone of the pursuing state, and may only be continued if the
pursuit has not been interrupted.33
The right of hot pursuit ceases as soon as the ship pursued enters the territorial
sea of its own state or of a third state. However, in the context of pursuing a pirate
or terrorist vessel, consideration has been given to the concept of ‘reverse’ hot
pursuit that would allow such a vessel to be pursued into the territorial sea of a
coastal state. Malaysia is currently discussing the possibility of reverse hot pursuit
agreements with Indonesia and the Philippines to allow their navies and coast
guards to pursue pirates into each other’s waters.34 This would be a welcome
development that would enhance the fight against terrorism, piracy and armed
attacks against ships.

Regional cooperation
International and regional cooperation are common themes in UNCLOS, as well
as in other regimes for maritime safety and security. Part IX of UNCLOS deals
with the situation of enclosed and semi-enclosed seas. It places a particularly
strong responsibility on states bordering such seas to cooperate with each other in
the exercise of their rights and duties. This regime is of importance to Southeast
Asia because the main seas in the region (i.e. the Andaman Sea, the Gulf of
Thailand, the South China Sea, and the Sulu Sea) all fall within the category of a
semi-enclosed sea.
106 Sam Bateman
Greater cooperation between regional countries would markedly improve law
and order at sea in the region. It would assist in overcoming the capacity shortfalls
in some countries and assist in establishing an environment where the countries
that are more advanced with their maritime security arrangements set a lead for
the less well advanced ones. Yet despite these benefits, regional maritime security
cooperation remains underdeveloped in the region.35
While UNCLOS exhorts regional countries to cooperate, there is also a para-
dox. The convention permits the extension of maritime space under some form of
national jurisdiction, particularly through the introduction of the EEZ. Thus it
supports and actually encourages nationalistic approaches to managing the mar-
itime domain. However, such approaches inhibit the development of cooperation
and effective international regimes. This paradox is very apparent in the seas of
Southeast Asia where countries are generally determined to obtain maximum
benefit from their rights under UNCLOS. These nationalistic approaches quite
fundamentally limit the prospects for maritime cooperation and regime-building
in the region.

Maritime security
Following the September 11 attacks, the IMO has given high priority to the
review of existing international legal and technical measures to prevent and sup-
press terrorist attacks against ships and improve security aboard and ashore. The
aim is to reduce the risk to passengers, crews and port personnel both onboard
ships and in port areas and to vessels and their cargoes. An area of concern for the
IMO has been the fundamental one of ship ownership and who has effective con-
trol of a ship for the purposes of ensuring both that the vessel is not used for
terrorist purposes and that it has effective security arrangements in place.

ISPS Code
The main contribution of the IMO to international maritime security, the ISPS
Code, entered into force on 1 July 2004.36 However, the code applies only to the
so-called ‘SOLAS ships’, that is the ships over 500 gross tonnage that are
employed on international voyages. Unless extended by national legislation,37 it
does not apply to fishing vessels, ships under 500 gross tonnage, or to merchant
ships employed only in the domestic trade. The number of vessels to which the
ISPS Code does not apply is particularly large in Southeast Asia where there are
large fishing fleets, many smaller trading vessels, and big domestic commercial
fleets, particularly in Indonesia and the Philippines.
Furthermore, and despite some rhetoric to the contrary, the ISPS Code, like
other instruments of international law, cannot be enforced effectively. The IMO
can monitor compliance but ultimately it all depends on the efficiency of the flag
state at establishing administrative arrangements for the code and ensuring the
compliance of ships flying its flag. And some flag states will report that arrange-
ments are in place but in reality, these may not be effective. The IMO is
Building good order at sea in Southeast Asia 107
attempting to establish a system of flag state audits but these will be voluntary
and only as good as the flag state is prepared to make them.

SUA Convention
There are about a dozen international conventions dealing with the threat of ter-
rorism but only the SUA Convention and its Protocol relate to terrorism at sea.
The purpose of this convention was to close the gap created by the limited defin-
ition of piracy. These limitations were brought to light by the Achille Lauro
incident in 1985. This was not an act of piracy because the terrorists, who seized
the ship, were travelling as passengers onboard the vessel.38 The SUA Convention
extends coastal state enforcement jurisdiction beyond the territorial limits, and in
particular circumstances, allows exercise of such jurisdiction in an adjacent
State’s territorial sea. The fact that some Southeast Asian countries have still to
ratify the SUA Convention (see Table 8.1) is probably due to some sensitivity to
the extra-territorial aspects of the convention.
An IMO Diplomatic Conference in October 2005 adopted new protocols to the
SUA Convention and its related Protocol on Fixed Platforms. These provide an
international treaty framework for combating and prosecuting individuals who
use a ship as a weapon or means of committing a terrorist attack, or transport by
ship terrorists or cargo intended for use in connection with weapons of mass
destruction programmes.39 A mechanism is also provided to facilitate the board-
ing in international waters of vessels suspected of engaging in these activities.
These expanded provisions of the SUA Convention through the introduction of
this protocol are unlikely to make the convention any more attractive to those
countries, which so far have chosen not to ratify it.

Long-range identification and tracking of ships


Largely at the behest of the US, the IMO has also been discussing plans for the
long-range identification and tracking (LRIT) of ships. LRIT would be part of
general arrangements for enhancing maritime domain awareness to detect and
monitor illegal activity at sea. Several countries, including Australia and the US,
have already introduced extended offshore identification arrangements requiring
ships approaching their shores to identify themselves well before they enter
national waters. However, the right of a coastal state to require ships that are not
entering a port in that state to identify themselves is uncertain under current inter-
national law. There is no complete consensus on the political, legal or financial
implications of LRIT, and it is becoming one of the most sensitive issues con-
fronting the international shipping industry.40

Maritime safety
The 1979 SAR Convention encourages cooperation between States Parties and
SAR organizations around the world with regard to search and rescue operations
108 Sam Bateman
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 obliga-
tions on parties such as the need to set up arrangements onshore to manage their
SAR responsibilities. As a result the convention was not widely ratified and a
revised convention was approved at the IMO in 1997. This clarifies the responsi-
bilities of governments and puts greater emphasis on regional cooperation. Parties
are encouraged to enter into SAR agreements with neighbouring states involving
the establishment of SAR regions, the pooling of facilities, establishment of com-
mon procedures, training and liaison visits. However, the convention has still
failed to attract additional ratifications in Southeast Asia. A possible explanation
is the obligation in the convention to allow entry into the territorial sea or territory
of a state by rescue units from another state for the purpose of SAR. The conven-
tion states that parties should take measures to expedite entry into its territorial
waters of rescue units from other parties.

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

Table 8.1 Status of Conventions and Agreements – Southeast Asian Countries

UNCLOS SOLAS 74 SAR SUA 88 SUA 88


Protocol
Brunei X X X X
Cambodia X
Indonesia X X
Laos
Malaysia X X
Myanmar X X X X
Philippines X X X X
Singapore X X X X
Thailand X
Vietnam X X X X
Sources: IMO and UN Division for Ocean Affairs and the Law of the Sea webpages.
Building good order at sea in Southeast Asia 109
by not ratifying international treaties, or accept commitments, but then do not fol-
low up on them.41 Lack of capacity to assess the implications of international
treaties is a major reason for countries slipping into the laggard category.
There appears to be a need for greater attention to these conventions, enhanced
legal education and better domestic legislation. There needs to be greater aware-
ness of the benefits of the conventions and acceptance of the principal that the
sum of mutual benefits outweighs any perceived individual costs. Developing
countries face problems with determining whether to ratify particular conven-
tions. In the field of maritime security and safety, the articulation and enactment
of sound and effective legislation is extremely important. These conventions are
not considered to be self-executing and require domestic legislation to put them
into force. In a region such as Southeast Asia, it would help also if domestic leg-
islation was harmonized as far as the different legal systems will allow.

Building a maritime security regime


There are important prerequisites of a successful maritime security and safety
regime in Southeast Asia, and in turn this regime must include several key ele-
ments. The important prerequisites are, first, sufficient common interests where
the expectations of participants might converge, and second, a strong political
framework that bridges the social and cultural divides and reflects the interests of
all concerned parties. These include not only the regional countries themselves
but also countries in adjacent regions that have a vital interest in maritime security
in Southeast Asia. The key elements of the regime are the norms, rules and proce-
dures that characterize the regime. These are both the operational arrangements
(i.e. for information sharing, surveillance, patrol and response) and the institu-
tional arrangements for policy formulation, capacity building and burden sharing.
At present the region is deficient with regard to both prerequisites of a successful
maritime security regime. The region seemingly lacks sufficient common inter-
ests on which to base a regime and in part because of this, there is not a strong
political framework to carry an effective regime forward.

Common interests
Most Southeast Asian countries strongly adhere to independence and sovereignty
with regional countries generally reluctant to agree to cooperative activities if they
appear to be compromising or qualifying national sovereignty or sovereign rights.
This restraint is particularly significant in the maritime domain with the extended
jurisdiction allowed by UNCLOS and numerous overlapping or conflicting claims
to offshore areas, islands and reefs. It is reinforced by a certain lack of political
commitment to cooperative activities,42 and can be manifest also in the failure to
implement or comply with international instruments, such as the SUA and SAR
Conventions, because they involve some concession of sovereignty.
Southeast Asian countries are a diverse group. They vary greatly in terms of
their geographical size, population, GDP per capita, defence capabilities, political
110 Sam Bateman
systems, culture and tradition. Economic gaps are widening and there are con-
cerns about the emergence of a ‘two-tiered’ ASEAN with Cambodia, Laos,
Myanmar and Vietnam falling behind their better-off neighbours.43 Threat percep-
tions and definitions of security vary in the region. Most regional countries have
priorities of economic development and poverty alleviation that have a higher call
on national resources than measures to combat what are perceived basically as
threats to the interests of the more developed world.

The extra-regional powers


Regional countries also have different perspectives as to how Southeast Asia
should relate to the major external powers – China, India, Japan and the US –
and how these countries might be involved in regional maritime security
arrangements. Singapore has forged a strong alliance with the US but other
Southeast Asian countries remain suspicious of US intentions and commitments
in the region.
Japan is the one extra-regional power that so far has made a significant contribu-
tion to the development of a maritime security regime in Southeast Asia.44 Japan
contributes to the costs of providing safety in the Malacca Straits and now regularly
deploys ships and aircrafts of the Japan Coast Guard (JCG) to assist in building the
capacity of regional countries to deal with piracy and maritime terrorism. Japan was
also instrumental in establishing the Regional Cooperation Agreement on
Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).
The US launched the Regional Maritime Security Initiative (RMSI) for the
Malacca and Singapore Straits in 2004. This initiative was focused on the threats
of piracy and terrorism, and to a lesser extent, drug smuggling, but did not recog-
nize the concerns of the littoral states, particularly Indonesia and Malaysia, for
other criminal activities at sea, such as people smuggling, illegal fishing and
marine pollution. It was also not formulated in the terms of UNCLOS Article 43,
possibly because the US is not a party to UNCLOS and may not recognize the
‘burden sharing’ provisions of the article as customary international law. Any
onus on a user state to cooperate might be considered as an infringement of the
principle of free and unobstructed passage.
China has been demonstrating increased preparedness to enter into maritime
cooperative activities in the region (a policy of ‘sincere cooperation’), including
in disputed areas of the South China Sea. In April 2005, China committed to a
string of partnership agreements with Indonesia, including on maritime coopera-
tion and the transfer of defence technology. Along with China’s apparent
preparedness to contribute to the safety and security of the Malacca and
Singapore Straits, these developments demonstrate China’s intentions to build
maritime influence in Southeast Asia, including through participation in maritime
regime building. India has shown similar interest but so far apart from joint exer-
cises with regional navies, has taken no specific initiatives.
Building good order at sea in Southeast Asia 111
Political frameworks
The European and South Pacific experiences demonstrate the importance of hav-
ing overarching political frameworks in place as a fundamental prerequisite of
effective maritime regimes at the regional level. These frameworks have facili-
tated the development in these two regions of a regional approach to issues such
as maritime safety and the prevention of ship-sourced marine pollution. More
arguably they also extend to maritime security.
At present Southeast Asia lacks a strong political framework on which to build
an effective maritime regime. ASEAN, the ASEAN Regional Forum (ARF) and
the Asia-Pacific Economic Cooperation (APEC) all have limitations in this
regard. A central aim of ASEAN in establishing the ARF over ten years ago was
to bring China into a process of dialogue that would help China in playing a
responsible role in the region (e.g. in the South China Sea),45 and this has largely
been achieved. However, ASEAN’s insistence on retaining the central diplomatic
role in the ARF is a source of frustration among Northeast Asian and Pacific par-
ticipants.46 Furthermore, the asymmetry between membership of the ARF and its
geographical area of concern also potentially leads to difficulties if ARF members
outside of Southeast Asia use the forum to ‘preach’ to members within the area.47
APEC has similar limitations. While it has taken some significant counter-terror-
ism initiatives,48 its membership is geographically broad and it remains focused
mainly on economics and trade issues.
Regionalism in Asia suffered a setback with the financial crisis of the late
1990s but is now resurgent with high expectations for the East Asian Summit
(EAS), the first meeting of which was held in December 2005. There is an emerg-
ing desire in East Asia to look after its own backyard. This is evident in the
build-up to the EAS, based on ASEAN plus Three (i.e. China, Japan and South
Korea), but also to include Australia, India and New Zealand. While this forum is
mainly about trade, most commentators anticipate that it will also address
regional security issues. ASEAN plus Three was an initial demonstration of
emerging East Asian regionalism.49 With the wider plans for EAS, these are all
attempts to build a regional association that is more limited in its geographical
membership than APEC or the ARF. Similarly, ReCAAP might also be seen as
part of a desire to mind one’s own backyard. Significantly, the US has had little
influence on these developments.

Operational factors
The concept of an operational maritime security regime in Southeast Asia has
quite a long history going back to the proposal for a Regional Maritime
Surveillance and Safety Regime (RMSSAR) for Southeast Asian waters ini-
tially suggested by the Institute of Strategic and International Studies (ISIS) in
Malaysia in 1990. However, several difficulties were identified with the imple-
mentation of this regime, including the lack of any clear commonality of
interest between possible member countries, the differences in organizational
112 Sam Bateman
arrangements for undertaking surveillance in these countries, and regional sen-
sitivities to particular issues, including fishing and disputed maritime claims.50
An effective operational regime in the relatively confined waters of Southeast
Asia should include arrangements for information sharing, building situational
awareness of what is happening at sea, surveillance and patrol, and then to pro-
vide an operational response to any suspicious activity. The US sought this with
the RMSI but some regional countries were reluctant to endorse the initiative.
However, some progress is being made. In June 2004, agreement was reached
between Indonesia, Malaysia and Singapore on coordinated patrols in the
Malacca and Singapore Straits. These are based on the exchange of information
on where patrol vessels from the three countries are patrolling but do not involve
ships actually patrolling together. As these littoral countries move towards a better
consensus on how on to meet security requirements in the straits, some form of
truly joint patrolling might be possible in the future, including reciprocal rights of
pursuit into each other’s territorial sea. Consensus might also be reached on how
to involve the major user states and international agencies in these activities.

Conclusions
The first part of this paper identified the comprehensive maritime regimes that
have been developed internationally to provide good order at sea and security for
shipping and seaborne trade. However, many regional countries are not convinced
about the priority accorded to the threats of piracy and maritime terrorism, and
are not parties to key international instruments. Their national concerns are more
fundamental about poverty alleviation, and social and economic development. In
a maritime sense, these translate into concerns for the health of the marine envi-
ronment, the control of pollution (ship-sourced pollution in particular), and the
management of dwindling fish stocks. Recognizing the salience of these concerns
and translating these into a comprehensive maritime security regime offers scope
for a possible way ahead.
Tensions over law of the sea issues may become more significant in the
future. Major Western navies are structuring their forces for littoral operations
and power projection,51 while regional navies, including in Southeast Asia, con-
tinue to focus on sea denial operations intended to deny their littoral waters to
the forces of a possible adversary. Expeditionary operations in the littoral waters
of other states clearly require maximum freedoms of navigation and overflight
while sea denial is supported by applying restrictions on those freedoms. Many
examples of these conflicts of interest may be found in East Asian waters. They
are apparent both with the implementation of navigational regimes (i.e. innocent
passage, straits transit passage and ASL passage), and with the interpretation of
rights and duties in the EEZ.
There are many challenges with implementing international maritime regimes
in Southeast Asia. Generally the promise of these regimes has not been realized in
the region. There is a clear contrast between the international regimes and what is
achievable at the regional and national level in Southeast Asia. The region needs a
Building good order at sea in Southeast Asia 113
stronger political framework that promotes the interests of regional countries, par-
ticularly in good order at sea, including the link between safety and security. The
benefits of regime participation must be promoted. This is not just a matter for the
regional countries but applies also to the US whose failure to ratify UNCLOS
remains a significant limitation on the ability of the international community to
realize the full promise of that hugely important convention. It is only through
steps such as those identified in this paper that the full promise of international
regimes will be realized, and Southeast Asia will achieve the stable maritime
regime advocated nearly 15 years ago by M. Leifer.

Notes
1 For a collection of recent essays reviewing the work of Professor Leifer see The
Pacific Review, vol. 18, no. 1, March 2005.
2 M. Leifer, ‘The maritime regime and regional security in East Asia’, The Pacific
Review, vol. 4, no. 2, 1991, pp. 126–36.
3 J. Vogler, The Global Commons: A Regime Analysis, Chichester: John Wiley & Sons,
1995, p. 2.
4 In a fine example of the need for compromise in maritime regime building, Article
56(2) of the 1982 UN Convention on the Law of the Sea (UNCLOS) provides that a
coastal state should have ‘due regard’ to the rights and duties of other states in its
EEZ, but then UNCLOS Article 58(3) requires other states to have ‘due regard’ to the
rights and duties of the coastal state in exercising their rights and duties in the EEZ.
However, no guidance is provided on what constitutes ‘due regard’.
5 Different writers define regime in different ways, sometimes explicitly and sometimes
not. But most are agreed that a regime refers to norms, rules and procedures that
regulate particular areas of public policy. E. B. Haas, ‘Why collaborate? Issue-linkage
and international regimes’, World Politics, vol. XXXII, no. 3, April 1980, p. 358. Or,
put somewhat more generally, regimes are regulated patterns of practice on which
expectations converge. S. D. Krasner (ed.), International Regimes, Ithaca, New York:
Cornell University Press, 1983, p. 2.
6 E. L. Miles, ‘Implementation of international regimes: a typology’ in D. Vidas and W.
Ostreng (eds) Order for the Oceans at the Turn of the Century, The Hague: Kluwer
Law International, 1999, p. 327.
7 Vogler, The Global Commons, p. 71.
8 The concept of international regime is broader than both international organization
(which tends to involve systematic information gathering, inspection, dispute
settlement and enforcement) and international law, which includes both formal,
written agreements between states, and their customary practice.
9 Amendments to SOLAS Chapter V include the mandatory fitting of ship-borne
automatic identification systems (AIS) for all ships of 500 gross tonnage and above
on international voyages.
10 Other IMO conventions also bear on maritime safety, particularly the 1978
International Convention on Standards for Training, Certification and Watchkeeping
for Seafarers (STCW Convention), but they are less dependent on cooperation and are
not discussed in this paper.
11 M. Q. Mejia Jr., ‘Defining maritime violence and maritime security’ in P. K.
Mukherjee, M. Q. Mejia Jr. and G. M. Gauci (eds) Maritime Violence and Other
Security Issues at Sea, Proceedings of the Symposium on Maritime Violence and
other Security Issues at Sea, World Maritime University, Malmo, Sweden, August
2002, p. 28.
114 Sam Bateman
12 W. O’Neill, ‘Safety and Security Now Inextricably Linked’, IMO News, no. 4, 2001,
p. 4.
13 Y. H. Song, ‘A survey of acceptance of the selected international maritime
instruments by member countries of CSCAP’ in Institute for International Relations
(IIR), ‘Objectives and principles of good governance: the contribution to regional
security’, Proceedings of the Sixth Meeting of the CSCAP Maritime Cooperation
Working Group, IIR, Hanoi, September 1999, p. 63.
14 F. Gaffney, ‘“River Kwai syndrome” plays in Law of the Sea’, Commentary, US
Naval Institute Proceedings, vol. 131, no. 3, March 2005, p. 2. This article argues that
UNCLOS is defective on national security, sovereignty, economic, and judicial
grounds. It gains significance because it was published in a prominent position in the
USN’s main professional journal.
15 Attributed to R. Frost, Mending a Wall, in J. M. and M. J. Cohen, The Penguin
Dictionary of Quotations, First Edition., Harmondsworth: Penguin Books, 1960, p. 163.
16 K. Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-
East Asia, Singapore: Oxford University Press, 1987, p. 13.
17 UNCLOS Article 5.
18 US Department of State, ‘Straight Baseline Claim: China’, Limits in the Seas No.117,
Bureau of Oceans and International Environmental and Scientific Affairs, 9 July
1996.
19 UNCLOS Article 7(1).
20 UNCLOS Article 7(3).
21 UNCLOS Article 7(6).
22 G. Austin, China’s Ocean Frontier: International Law, Military Force and National
Development, St. Leonards: Allen & Unwin, 1998, p. 182.
23 T. Scovazzi, ‘The establishment of straight baselines systems: the rules and the
practice’, in Vidas and Ostreng (eds), Order for the Oceans at the Turn of the Century,
pp. 445–56.
24 J. A. Roach, ‘Salient issues in the implementation of regimes under the Law of the
Sea Convention: an overview’, in Vidas and Ostreng (eds), Order for the Oceans at
the Turn of the Century, p. 436.
25 However, Sohn found that systems of straight baselines were explicitly taken into
account in rather less than one-third of the boundary agreements negotiated. L. B.
Sohn, ‘Baseline Considerations’, in J. I. Charney and L. M. Alexander, International
Maritime Boundaries, vol.1, Dordrecht: Martinus Nijhoff Publishers, 1992, p. 157.
26 J. R. V. Prescott, ‘Straight and Archipelagic Baselines’, in G. Blake (ed.), Maritime
Boundaries and Ocean Resources, London: Croom Helm, 1987, p. 39.
27 Ibid., p. 40.
28 The criteria for an archipelagic state are first, the country must be constituted wholly
by one or more archipelagos or islands; second, the islands and groups of islands
should form an intrinsic geographical, economic and political entity, or have been
historically regarded as such; and third, maximum and minimum limits are set to the
area of water that can be included within the archipelago. When legitimate
archipelagic straight baselines are drawn around the outer limits of the islands and
drying reefs comprising the archipelago, the ratio of the area of water to area of land
must lie between 1 to 1 and 9 to 1.
29 UNCLOS Article 20.
30 B. A. Hamzah, ‘International funding for the Straits of Malacca’, MIMA Bulletin, vol.
8, no. 1, 2000, pp. 5–9.
31 A flag of convenience ship is one that flies the flag of a country other than the country
of ownership. Cheap registration fees, low or no taxes and freedom to employ cheap
labour are the motivating factors behind a shipowner’s decision to ‘flag out’.
32 Global Policy Forum, ‘A brief guide to flags of convenience’. Available online at:
<http://www.globalpolicy.org/nations/flags/guide.htm> (accessed 10 April 2006).
Building good order at sea in Southeast Asia 115
33 Hot pursuit may also apply from the EEZ in respect of offences related to coastal state
rights and duties in that zone.
34 ‘Discussion on “hot pursuit” agreements’, New Straits Times, 30 May 2005.
Available online at: <http://www.nst.com.my/Current_News/NST?Friday/National/
NST32351662.txt> (accessed 31 May 2005).
35 J. F. Bradford, ‘The growing prospects for maritime security cooperation in Southeast
Asia’, Naval War College Review, vol. 58, no. 3, Summer 2005, pp. 63–86.
36 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.
37 The Maritime Transport Security Act (Cwlth) 2003 in Australia, for example, extends
ISPS provisions to all ships employed on interstate voyages but not to ones employed
on intra-state voyages.
38 The Achille Lauro affair occurred in the Mediterranean when Arab terrorists took
over the cruise line, killing an elderly American tourist in the process. It was not an
intentional terrorist act rather an unfortunate incident resulting after four terrorists
trying to get to Israel were caught off guard when a steward entered their cabin and
found them cleaning their weapons. The Achille Lauro affair, however, has had major
consequences, including disputes between the United States and other countries on
issues of criminal jurisdiction.
39 US Department of State, ‘Protocols to the United Nations Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)’,
Fact Sheet, 21 October 2005.
40 C. Eason, ‘Freedom and security: the dilemma of vessel tracking’, Lloyd’s List online,
21 April 2006.
41 P. M. Haas, R. O. Keohane and M. A. Levy (eds) Institutions for the Earth: Sources
of Effective Environmental Protection, Cambridge, Mass.: MIT Press, 1993, p. 16.
42 T. R. Shie, ‘The nexus between counterterrorism, counterproliferation, and maritime
security in Southeast Asia’, Issues and Insights 04–04, Pacific Forum CSIS, 2004, pp.
5–6.
43 M. C. Anthony, ‘Understanding development gaps in ASEAN’, IDSS Commentaries
28/2005, 31 May 2005.
44 For a comprehensive description of Japanese maritime security initiatives in
Southeast Asia see J. F. Bradford, ‘Japanese anti-piracy initiatives in Southeast Asia:
policy formulation and the coastal state responses’, Contemporary Southeast Asia,
vol. 26, no. 3, 2004, pp. 480–505.
45 J. Henderson, ‘Reassessing ASEAN’, Adelphi Paper No.328, London: International
Institute for Strategic Studies, May 1999, p. 28.
46 M. Leifer, ‘The ASEAN Regional Forum’, Adelphi Paper No.302, London:
International Institute for Strategic Studies, July 1996, p. 59.
47 S. S. C. Tay, ‘Preventive Diplomacy and the ASEAN Regional Forum: principles and
possibilities’, in D. Ball and A. Acharya (eds) The Next Stage – Preventive Diplomacy
and Security Cooperation in the Asia-Pacific Region, Canberra Papers on Strategy
and Defence No. 131, Canberra: Strategic and Defence Studies Centre, Australian
National University, 1999, p. 144.
48 These include the Secure Trade in the Asia-Pacific Region (STAR) initiative, which
provides for the protection of ships and cargoes, promotes the introduction of ship and
116 Sam Bateman
port security plans, provides for the accreditation of seafarer manning agencies in the
region, promotes cooperation on fighting piracy, sets standards for shipborne
detection equipment and technology, and pays particular attention to energy security
including the security of SLOCs.
49 R. Stubbs, ‘ASEAN Plus Three: emerging East Asian regionalism?’, Asian Survey,
vol. 42, no. 3, May/June 2002, pp. 440–55.
50 D. Ball and S. Bateman, ‘An Australian perspective on maritime CSBMs in the Asia-
Pacific region’, in A. Mack (ed.) A Peaceful Ocean? Maritime Security in the Pacific
in the Post-Cold War Era, St. Leonards: Allen & Unwin, 1993, pp.158–85. See also,
Captain R. Swinnerton RAN and D. Ball, ‘A regional regime for maritime
surveillance, safety and information exchanges’, Maritime Studies, no. 78,
September/October 1994, pp. 1–15.
51 G. Till provides an excellent contemporary review of how navies, predominantly
Western, are changing to reflect a focus on expeditionary operations in Seapower: a
Guide for the Twenty-First Century, London: Frank Cass, 2004.
9 Archipelagic sea lanes passage in
Southeast Asia
Developments and uncertainties
Robert Beckman

The two largest archipelagic states in the world – Indonesia and the Philippines –
are located in Southeast Asia. They strongly believe that their islands and inter-
connecting waters are so closely interrelated that they are inseparable, and that
control over the waters within their archipelago is essential to their very identity
and existence as states. Therefore, they insisted during the development of the law
of sea over the past 50 years that an archipelagic states regime be recognized
which would give them sovereignty over both their island territories and the
waters within their archipelago.
However, passage through and over the archipelagos of Indonesia and the
Philippines is vital to the security and economic interests of the maritime powers
and other states. Several major routes used for international navigation pass
through the archipelagos of Indonesia and the Philippines. More than half the
world’s trade passes through these waters, and navigation through the waters is
critically important to the energy needs of states in Northeast Asia. In addition,
naval powers must pass through these states in order to move their fleets from the
Indian Ocean to the South China Sea.
The legal regime set out in Part IV of the 1982 United Nations Convention on
the Law of the Sea1 (UNCLOS) on archipelagic states was negotiated in the mid-
1970s in order to strike a balance between the interests of the archipelagic states
and the interests of the user states.

Historical development of the legal regime governing archipelagos


Negotiations at the Third United Nations Conference on the Law of the Sea
(Third UN Conference) began in 1973 and were not completed until the adop-
tion of UNCLOS in December 1982. At the Third UN Conference Indonesia
and the Philippines worked with other archipelagic states such as Fiji and
Mauritius to gain recognition for the archipelago concept. The archipelagic
states argued that the normal rules on drawing baselines from which to measure
the territorial sea should not apply to mid-ocean archipelagos. They maintained
that there was an inseparable unity between their islands and the waters which
connected them, and that unity was essential to their very identity as states.
Thus, it was imperative that they have sovereignty not just over their islands, but
118 Robert Beckman
also over the waters between their islands and to other geographic features
within their archipelago.
The major maritime powers opposed the archipelago concept because it was a
threat to the freedoms of navigation and overflight through and over the archi-
pelagic states. Both Indonesia and the Philippines were very large states and
several major international shipping routes passed through them. If the archipel-
ago concept were accepted, it would bring all of the waters enclosed by the
straight baselines around the archipelago under the sovereignty of the archipel-
agic states. There would no longer be any belt of high seas between the islands
where all states enjoyed the high seas freedoms of navigation and overflight.
Therefore, the archipelago concept was a threat to the military interests of the
major naval powers, who wanted the freedom to move their navies between the
Indian Ocean and the South China Sea without having to pass through waters
under the sovereignty of coastal states.
The proposal for a special archipelagic states regime posed the same threat to
the major maritime powers as the proposal to extend the breadth of the territorial
sea from 3 nautical miles to 12 nautical miles. With a 12-nautical-mile territorial
sea, choke points on traditional international shipping routes such as the Malacca
Strait would no longer be governed by the high seas freedoms of navigation and
overflight, but would be governed by the territorial sea regime, where there is no
right of overflight and where the passage of ships is governed by the right of inno-
cent passage.
At the Third UN Conference the major maritime powers sought to protect their
military interests by agreeing to new regimes for straits used for international
navigation and for archipelagic states. Part III of UNCLOS contains a new regime
for straits used for international navigation, where all states have the right of tran-
sit passage. Part IV of UNCLOS contains a new regime for archipelagic states,
where all states have a right of archipelagic sea lanes passage. These regimes rec-
ognize the sovereignty of coastal states in a 12-nautical-mile territorial sea and
the sovereignty of archipelagic states in their archipelagic waters. However, they
limit that sovereignty by giving all states the right of transit passage through
straits used for international navigation that pass through the territorial sea and
the right of archipelagic sea lanes passage on international sea lanes through arch-
ipelagic states.

UNCLOS regime for archipelagic states


The archipelagic states regime is limited to mid-ocean archipelagos, or to states
constituted wholly by one or more archipelagos.2 Also, the regime is only applic-
able to mid-ocean archipelagos in which the ratio of the area of water to the area
of land is between 1 to 1 and 9 to 1.3 The regime allows archipelagic states to use
straight baselines joining the outermost points of the outermost islands and dry-
ing reefs. The waters enclosed by the archipelagic baselines are referred to as
archipelagic waters. The territorial sea and the exclusive economic zone of an
archipelagic state are measured from the archipelagic baselines.
Archipelagic sea lanes passage in Southeast Asia 119
The sovereignty of the archipelagic state extends to its archipelagic waters as well
as to the air space above those waters and to the seabed and subsoil under the
waters.4 This means that as a general principle, the laws of the archipelagic states
apply to activities in its archipelagic waters and the archipelagic state has the
exclusive right to exercise the functions of government in its archipelagic waters.
Also, because the archipelagic state has sovereignty over its islands and archipel-
agic waters, under general principles of international law foreign military aircraft
would have no right to fly over the archipelagic state.
Although archipelagic states have sovereignty over their archipelagic waters,
their sovereignty is limited by UNCLOS. Article 49(3) specifically provides that
the sovereignty of the archipelagic state must be exercised subject to the provi-
sions in Part IV of UNCLOS on archipelagic states. The major limitation on the
sovereignty of the archipelagic state in its archipelagic waters is that all states
have rights of passage through and over the archipelagic waters. First, ships of all
states have the right of innocent passage through the archipelagic waters.5 This
right is the same as the right of innocent passage through the territorial sea.
Second, ships and aircraft of all states have the right of archipelagic sea lanes pas-
sage through and over archipelagic waters on designated sea lanes and air routes.6
The right of archipelagic sea lanes passage is almost identical to the right of tran-
sit passage through and over straits used for international navigation.7

Regimes of transit passage and archipelagic sea lanes passage


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

1 The rights of transit passage and archipelagic sea lanes passage include over-
flight for aircraft as well as navigation for ships.9 By contrast, the right of
innocent passage is limited to the passage of ships.10
2 Ships exercising the rights of transit passage or archipelagic sea lanes pas-
sage may use their normal mode of transit.11 For example, submarines may
transit submerged and military aircraft may overfly in combat formation with
normal equipment in operation. Also, surface warships may transit in a man-
ner necessary for their security, including formation steaming and the
launching and recovery of aircraft, where consistent with sound navigational
practices. By contrast, when exercising the right of innocent passage sub-
marines must surface and fly their flag.12 Also, when exercising the right of
120 Robert Beckman
innocent passage the launching, landing or taking on board of any aircraft is
not permitted.13
3 Transit passage and archipelagic sea lanes passage may never be suspended,
even temporarily, for reasons of national security.14 By contrast, the right of
innocent passage may be temporarily suspended if suspension is necessary
for security reasons.15

The regimes of transit passage and archipelagic sea lanes passage are also differ-
ent from the regime governing innocent passage in the territorial sea in another
important respect. The right of the coastal state or archipelagic state to regulate
ships exercising the right of transit passage or archipelagic sea lanes passage is
very limited.16 The power to regulate the ships exercising these passage rights is in
effect given to the International Maritime Organization (IMO). Although ships
exercising such passage rights are obliged to comply with ‘generally accepted
international regulations, procedures and practices’17 for safety at sea and ship-
source pollution, the power of coastal states to regulate ships exercising such
passage rights is limited to ‘giving effect to’ generally accepted international reg-
ulations.18 By contrast, coastal states have a fairly broad power to regulate ships
exercising the right of innocent passage.19
Another distinctive feature of the regimes governing passage through archipel-
agic states and straits used for international navigation is that certain regulations
governing ships exercising rights of passage must be approved by the IMO. If sea
lanes and traffic separation schemes are going to be established in a strait used for
international navigation, they must conform to IMO regulations and be proposed
by the states bordering the strait to the IMO with a view to their adoption by the
IMO.20 A similar provision applies to sea lanes through an archipelagic state. An
archipelagic state may designate sea lanes through their archipelago, but the sea
lanes must conform to IMO regulations, and they must be referred by the archi-
pelagic states to the IMO with a view to their adoption.21
UNCLOS does not require that archipelagic states designate sea lanes and
air routes. It merely provides that archipelagic states ‘may’ designate sea lanes
and air routes.22 However, it also specifies that any designation of sea lanes
must include all normal passage routes and navigational channels, except that
duplication of routes of similar convenience between the same entry and exit
points is not necessary.23
UNCLOS also provides that archipelagic states may prescribe traffic separa-
tion schemes through narrow channels within such sea lanes.24 Once sea lanes and
air routes through an archipelagic state have been proposed and adopted, ships
and aircraft of all states, including military ships and military aircraft, enjoy the
right of archipelagic sea lanes passage in such sea lanes and air routes for the pur-
pose of continuous and expeditious transit through the archipelago.25
UNCLOS specifically provides that if an archipelagic state does not designate
sea lanes or air routes, ships and aircraft may exercise the right of archipelagic sea
lanes passage through the ‘routes normally used for international navigation’26
through the archipelagic state.
Archipelagic sea lanes passage in Southeast Asia 121
If sea lanes are designated through an archipelagic state as provided in UNC-
LOS, the sea lanes themselves do not enjoy any special international status. The
sea lanes are within the sovereignty of the archipelagic state, subject to the right
of archipelagic sea lanes passage. Any activity by a ship within an archipelagic
sea lane which is not an exercise of the right of archipelagic sea lanes passage
remains subject to the laws and regulations of the archipelagic state and to the
other provisions in UNCLOS. For example, if a fishing vessel were to engage in
fishing while passing through the archipelago within a designated sea lane, the
fishing activity would not be an exercise of the right of archipelagic sea lanes pas-
sage and the archipelagic state would have a right to arrest the fishing vessel for
illegal fishing.

Indonesian proposal for partial system of archipelagic sea lanes


At the sixty-seventh session of the Maritime Safety Committee (MSC) in May
1996, Indonesia submitted a proposal for the designation of archipelagic sea lanes
through its archipelagic waters.27 The proposal by Indonesia consisted of three
north–south sea lanes.
Indonesia was the first archipelagic state to submit a proposal to the IMO on
the designation of sea lanes. The UN Division of Ocean Affairs and Law of the
Sea had stated in 1994 that the relevant competent international organization for
the purposes of archipelagic sea lanes would be the IMO, but the IMO had no pro-
cedures or guidelines on the designation of archipelagic sea lanes.
When it learned that Indonesia was going to make a proposal to the sixty-sev-
enth session of the MSC for the designation of sea lanes, Australia made a formal
submission giving its views on IMO procedures for adopting archipelagic sea
lanes.28 After receiving the Indonesian proposal and the Australian submission,
the MSC decided to consider the Indonesia proposal for the designation of archi-
pelagic sea lanes as a routeing measure, and to refer the matter to its
Sub-Committee on Safety of Navigation (NAV Sub-Committee) together with the
submission of Australia.29 It instructed the NAV Sub-Committee to consider the
matter and submit recommendations to the sixty-ninth session of the MSC.30
Indonesia worked closely with Australia and the United States and with the
NAV Sub-Committee to reach a consensus on the procedures for the designation
and adoption of archipelagic sea lanes. Consequently, at its forty-third session in
July 1997, the NAV Sub-Committee recommended new procedures for dealing
with future proposals for archipelagic sea lanes.31
In 1997 the NAV Sub-Committee considered the proposal for the designation of
sea lanes through the Indonesian Archipelago that had been submitted to the MSC
in 1996. Both Australia and the US made submissions to the NAV Sub-Committee
with respect to the normal passage routes through the Indonesian archipelago. In
its submission the US noted that ‘Indonesia had not proposed that the IMO adopt a
major east–west sea lane through the Java Sea as well as smaller associated lanes
and connectors that were used for international navigation, and that consequently,
the submission should be viewed as a proposal for a partial designation only’.32
122 Robert Beckman
The US submission contained a chartlet which it claimed generally illustrates other
routes not encompassed by the Indonesian proposal normally used for interna-
tional navigation by ships and aircraft while in archipelagic sea lanes passage
through the Indonesian archipelago.33
Australia agreed with the US that the Indonesia proposal should be considered
a partial designation because it did not include the east–west sea passage route.34
Australia also submitted an attached map indicating what in its view were the nor-
mal passage routes used by shipping to and from Australia. It stated that the routes
illustrated on the map ‘have been arrived at by examination of accepted interna-
tional navigational charts of the area, close consultation with the shipping
industry in Australia and reference to data recording naval ship transits through
the Indonesian archipelago’.35
One of Australia’s major concerns was with regard to the charting of archipel-
agic sea lanes and the positioning of the axis line. It was troubled by the
ambiguity in Article 53(5) on axis lines, which provided no guidance on the posi-
tioning of an axis line within an archipelagic sea lane. It also saw difficulties
with respect to the width of archipelagic sea lanes and the ten per cent rule
referred to in Article 53(5).36
In any case, it appears that at least in 1997, there were some differences in the
positions of Australia and the US with respect to the smaller associated lanes and
connectors on the east–west route.

IMO procedures and functions on archipelagic sea lanes


In May 1998 at its sixty-ninth session the MSC considered the report and recom-
mendations of the NAV Sub-Committee. It adopted amendments to the General
Provisions on Ships’ Routeing concerning the adoption, designation and substitu-
tion of archipelagic sea lanes (General Provisions on Ships’ Routeing).37 The
amendments clarified the functions of the IMO and the procedures with respect to
proposals for archipelagic sea lanes. The procedures and functions of the IMO are
defined as follows:

3.1 IMO is recognized as the competent international organization responsi-


ble for adopting archipelagic sea lanes in accordance with the relevant
provisions of UNCLOS and these provisions.
3.2 When adopting a proposed archipelagic sea lane, IMO will ensure that
the proposed sea lane is in accordance with the relevant provisions of
UNCLOS and determine if the proposal is a partial archipelagic sea
lanes proposal. IMO may adopt only such archipelagic sea lanes as may
be agreed by the Government of the proposing archipelagic State.
3.3 Upon receipt of a proposal for designating archipelagic sea lanes and
before consideration for adoption, the IMO shall ensure that the proposal
is disseminated to all Governments and ICAO so as to provide them with
sufficient opportunity to comment on the proposal.
Archipelagic sea lanes passage in Southeast Asia 123
3.4 Following a proposal to the IMO by an archipelagic State, other States
may request that the archipelagic State propose additional sea lanes to
include all other normal passage routes used as routes for international
navigation or overflight through or over archipelagic waters as required
by UNCLOS.
3.5 In order for IMO to ensure that sea lanes proposed for adoption include
all normal passage routes, IMO shall retain continuing jurisdiction (i.e.,
competence) over the process of adopting archipelagic sea lanes until
such time that sea lanes including all normal passage routes have been
adopted as required by UNCLOS.38
The General Provisions on Ships’ Routeing also clarified the responsibilities of
government of the archipelagic state, and set out recommended practices that
should be followed. The following provisions are significant:

3.6 The Government of an archipelagic State considering proposing archi-


pelagic sea lanes should consult at an early stage with other user
Governments and the IMO.
3.7 Subject to paragraph 3.9, the Government of an archipelagic State which
wishes to designate archipelagic sea lanes shall propose to IMO for
adoption archipelagic sea lanes including all normal passage routes and
navigational channels as required by UNCLOS.
3.8 An archipelagic sea lanes proposal shall provide sea lanes suitable for
the continuous and expeditious passage of foreign ships and aircraft in
the normal mode through or over the archipelagic waters and the adja-
cent territorial sea. In proposing archipelagic sea lanes, the Government
shall explain in its proposal the suitability of such sea lanes for such con-
tinuous and expeditious passage.
3.9 The proposal shall also indicate if it is a partial archipelagic sea lane
proposal.
3.12 If IMO adopts a partial archipelagic sea lane proposal as a partial system
of archipelagic sea lanes, the archipelagic State shall periodically inform
IMO on its plans for conducting further surveys and studies that will
result in the submission to IMO of proposals for adoption of all normal
passage routes and navigational channels as required by UNCLOS,
along with the general location of these lanes and time frame for this
effort. In such a case, the archipelagic State is ultimately required to pro-
pose for adoption archipelagic sea lanes including all normal passage
routes and navigational channels as required by UNCLOS.39

Another provision which is particularly important in the context of the Indonesian


archipelago is the following:

6.7 Where a partial archipelagic sea lanes proposal has come into effect, the
right of archipelagic sea lanes passage may continue to be exercised
124 Robert Beckman
through all normal passage routes used as routes for international navi-
gation or overflight in other parts of archipelagic waters in accordance
with UNCLOS.40

Revised proposal of Indonesia in 1998


As it prepared to propose the designation of its archipelagic sea lanes in 1996,
Indonesia also took steps to revise its baselines to bring them into conformity
with UNCLOS.41 Indonesia’s archipelagic baselines had originally been defined
in Law No. 4 of 18 February 1960.
At the sixty-ninth session of the MSC in 1998 Indonesia submitted a revised
proposal for the designation of archipelagic sea lanes.42 It stated that it had been
prepared in consultation with various interested governments, which included
Australia and the US. Indonesia also confirmed that its proposal was a partial pro-
posal and that the relevant provisions of the then draft General Provisions on
Ships’ Routeing (NAV 43/15, Annex 4) will apply. In particular, Indonesia agreed
that, since it was a partial designation,

the right of archipelagic sea lanes passage may be exercised . . . in all other
normal passage routes used for international navigation or overflight and all
normal navigational channels lying within such routes, including an
east–west route and other associated spurs and connectors, through and over
Indonesia’s territorial sea and its archipelagic waters. (emphasis added)43

Both the revised proposal of Indonesia and the 1998 Report of the Maritime
Safety Committee make it clear that Indonesia had agreed that two other para-
graphs in the General Provisions on Ships’ Routeing adopted in 1998 were
applicable because its revised proposal was a partial system of archipelagic sea
lanes.44 First, Indonesia must periodically inform the IMO of its plans for the
submission of further sea lane proposals to the IMO for adoption, including the
general location of the additional sea lanes and the time frame for their submis-
sion.45 Second, until the designation of archipelagic sea lanes includes all
normal passage routes, the IMO will continue to have jurisdiction over the issue
of archipelagic sea lanes in Indonesia.46
After thorough consideration, the MSC adopted resolution MSC.72(69) on
adoption, designation and substitution of archipelagic sea lanes formally adopting
the proposed partial system of archipelagic sea lanes through the Indonesian arch-
ipelago.47 Indonesia undertook to inform the MSC of the date on which the partial
system of archipelagic sea lanes would be implemented.
At its seventieth session in December 1998, the MSC approved the Guidance
to Ships Transiting Archipelagic Waters, which was circulated to all IMO mem-
bers in January 1999.48 Three points in the guidelines are worthy of mention
(emphasis added):
Archipelagic sea lanes passage in Southeast Asia 125
● Paragraph 2.1.1 provides that if the IMO has adopted a partial system of
archipelagic sea lanes, the right of archipelagic sea lanes passage may con-
tinue to be exercised through all normal passage routes used as routes for
international navigation in other parts of archipelagic waters.49
● Paragraph 4 provides that ships exercising the right of archipelagic sea lanes
passage must use applicable sea lanes (or normal passage routes if sea lanes
have not been adopted or only a partial system of archipelagic sea lanes has
been adopted.)50
● Paragraph 4.1 gives examples of the meaning of the normal mode of operation
for ships exercising archipelagic sea lanes passage. It provides that it means,
for example, that submarines may transit submerged and surface ships may
engage in normal operations, such as replenishment-at-sea and the operation
of embarked aircraft, where consistent with the safety of navigation.51

Promulgation of Indonesian government Regulation No. 37 of 2002


At the seventy-sixth session of the MSC in 2002, Indonesia informed the com-
mittee that on 28 June 2002 it had promulgated Government Regulation 37 of
2002 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the
Right of Archipelagic Sea Lanes Passage Through Designated Archipelagic Sea
Lanes (Regulation 37 of 2002). Indonesia announced that pursuant to this, the
archipelagic sea lanes in Indonesian waters would be implemented on 28
December 2002. The text of Regulation 37 of 2002 was circulated to member
governments of the IMO on 3 July 2003.52
Regulation No. 37 of 2002 sets out in the domestic law of Indonesia the rights
and obligations of ships exercising the right of archipelagic sea lanes passage
through the archipelagic sea lanes of Indonesia. The regulation is obviously an
attempt by Indonesia to clarify the right of archipelagic sea lanes passage by pro-
viding more certainty as to exactly what types of activities can be undertaken and
what types of activities cannot be undertaken by a ship exercising the right of
archipelagic sea lanes passage.
The US has taken specific steps to declare that notwithstanding the Indonesian
Regulation, it intends to exercise the right of archipelagic sea lanes passage
through all routes normally used for international navigation. In the statement it
submitted to the MSC on 25 March 2003 stating its view that Indonesia had not
properly designated its sea lanes as required by the IMO guidelines, it also stated
that ‘the United States understands that the designation of sea lanes is a partial
designation in that it does not address passage through all traditional routes’.53
The US also expressly reserved its right and those of its nationals to exercise the
right of archipelagic sea lanes passage through all routes of the Indonesian archi-
pelago normally used for international navigation.54
On 8 August 2003, the US State Department sent a telegram to the US Embassy
in Jakarta concerning Indonesia’s archipelagic claims directing that clarification
be sought on Regulation No. 37. The US statement advised that it considers for the
most part that Regulation No. 37 and its annexes faithfully follow the provisions of
126 Robert Beckman
Part IV of UNCLOS and the Sea Lanes adopted by the IMO in 1998.55 However,
the statement raised the following points with respect to Regulation No. 37:

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

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

Uncertainties regarding the East–West route as a normal route


To date it has not been possible for Australia, Indonesia and the US to reach a
consensus on an east–west route, including smaller associated lanes and con-
nectors to such a route. However, Indonesia has confirmed on several occasions
that its designation is only partial. Also, Indonesia seems to have agreed in IMO
meetings in 1998 that an east–west sea lane should be designated. Therefore, it
may be that there is agreement in principle on the need to designate an
east–west sea lane, but a lack of consensus on which ‘smaller associated lanes
and connectors’ are routes normally used for international navigation on the
east–west route. Given that Australia and the US had differing views in 1997 on
which smaller associated sea lanes and connectors are routes normally used for
Archipelagic sea lanes passage in Southeast Asia 127
international navigation on the east–west route, it is likely that Indonesia has a
third position on this issue. In other words, as is often the case, the devil is very
likely in the detail.
There is likely to be further negotiations before the remaining issues with
respect to an east–west sea route are finally resolved and an east–west route is
designated. In the meantime, the international community will have to continue to
live with a limited degree of uncertainty with regard to the status of the east–west
route through the Indonesian archipelago.

The Philippines archipelago


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

1 The IMO responsibilities will be carried out by the Maritime Safety


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

If the Philippines decides to designate archipelagic sea lanes, the user states it
should consult will include Australia and the US. Most of the minerals exported
from Australia to Northeast Asia pass through the Philippines archipelago. The
US has an interest in ensuring that its naval vessels can continue to pass through
the Philippines archipelago exercising the right of archipelagic sea lanes passage.
As its starting point in negotiations on normal routes for international navigation
through the Philippines archipelago, the US is likely to begin with the analysis set
out in the study done by Lewis Alexander in 1986.61
Given that it is bound under international law by Part IV of UNCLOS to respect
the right of archipelagic sea lanes passage through its archipelagic waters, it may be
in the national interests of the Philippines to make a proposal to the IMO for the
designation of archipelagic sea lanes through its archipelago. If it were to follow the
precedent of Indonesia and designate sea lanes, there would be more certainty on
the issue of whether states have a right of archipelagic sea lanes passage in particu-
lar routes used for international navigation through the Philippine archipelago. Until
sea lanes are designated, naval powers are likely to take the position that they have
the right of archipelagic sea lanes passage through ‘all routes normally used for
international navigation’, and they are likely to interpret this phrase rather broadly.
The Philippines has special concerns about archipelagic sea lanes passage
because the international shipping routes through its archipelago are fairly nar-
row. They also have serious environmental concerns because the international
shipping lanes pass through waters that are rich in fisheries and other marine bio-
logical diversity.62 The Philippines is especially concerned about the threat to its
marine environment from vessels exercising archipelagic sea lanes passage.
Fortunately, most oil tankers going from the Middle East to Northeast Asia,
including very large crude carriers (VLCCs), use the route through the Straits of
Malacca and Singapore, and do not pass through the Philippines.
Archipelagic sea lanes passage in Southeast Asia 129
One advantage for the Philippines if it designates archipelagic sea lanes is that
the routes through which ships can exercise archipelagic sea lanes passage will be
clear, and it will be better able to monitor traffic in those lanes for vessel-source
pollution. The Philippines will want to keep the number of designated sea lanes
through its archipelago to an absolute minimum. It is likely to take the position
that because of environmental considerations, only the ‘major routes’ used for
international navigation through its waters should be designated as sea lanes for
the purposes of archipelagic sea lanes passage. If the major routes used for inter-
national navigation will accommodate the interests of naval powers such as the
US and states with the greatest interest in routes for commercial vessels such as
Australia, the Philippines may be able to reach an agreement with the major users
that will be accepted by the IMO.

Conclusions
UNCLOS is now almost universally accepted. The provisions on archipelagic sea
lanes passage in Part IV of UNCLOS represent a carefully negotiated compro-
mise between the interests of the archipelagic states in maintaining sovereignty in
their waters and the interests of user states in maintaining the right to navigate
through and fly over the waters of the archipelagic state on international shipping
routes. Many of the uncertainties which existed prior to UNCLOS have been
resolved. Part IV of UNCLOS made it clear that archipelagic states such as
Indonesia and the Philippines may draw straight baselines connecting the outer-
most points of their outermost islands and claim sovereignty over the archipelagic
waters enclosed by the baselines. UNCLOS made it equally clear that their sover-
eignty in those waters is limited by the provisions of UNCLOS and that foreign
ships and aircraft have a right to navigate through and over their waters in desig-
nated sea lanes in accordance with the provisions in Part IV of UNCLOS.
Significantly, the archipelagic states regime set out in UNCLOS has been
accepted by the major archipelagic states and user states. Although some archi-
pelagic states such as the Philippines have been reluctant to bring their national
laws into conformity with UNCLOS, those same archipelagic states accept that in
their relations with other states they are legally bound by the legal regime set out
in Part IV of UNCLOS. Even more important, the largest archipelagic state,
Indonesia, has been instrumental in developing the procedures and principles
established in UNCLOS on the designation of archipelagic sea lanes.
The archipelagic states regime set out in Part IV of UNCLOS has developed in
several ways as a result of the designation of sea lanes through Indonesia. First,
UNCLOS provided that sea lanes were to be designated by archipelagic states in
cooperation with the competent international organization, but there was a lack of
certainty as to the exact procedure to be followed for the designation of sea lanes and
the precise role of the international organization in this process. It is now clear that
the IMO, through its MSC and its NAV Sub-Committee, plays a critically important
role in balancing the competing interests of the archipelagic states and user states, as
it must approve the proposals for the designation of archipelagic sea lanes.
130 Robert Beckman
Second, the responsibilities of the archipelagic states in the designation of
archipelagic sea lanes have been clarified as a result of the actions at the IMO in
response to the Indonesian proposal for archipelagic sea lanes. It is now clear that
archipelagic states are expected at an early stage to enter into consultations with
interested user states, and to follow the relevant provisions of the General
Provisions on Ships’ Routeing that apply to the adoption, designation and substi-
tution of sea lanes.
Third, it has become clear that the IMO has a responsibility to continue to
develop its regulatory regime on international shipping so that ships exercising
the right of archipelagic sea lanes passage do not pose unreasonable threats to the
safety, security and marine environment of archipelagic states. The IMO has this
continuing power and responsibility because Part IV of UNCLOS provides that
all ships exercising the right of archipelagic sea lanes passage must comply with
generally accepted international regulations, procedures and practices for safety
at sea and for the prevention, reduction and control of pollution from ships.63
Therefore, as the IMO develops new generally accepted international regulations,
procedures and practices on these matters, all ships exercising the right of archi-
pelagic sea lanes passage will be obliged to comply with them. This is the
mechanism that will enable the archipelagic states regime set out in UNCLOS to
adapt to the increasing concern in the global arena about maritime security and
pollution of the marine environment.
Fourth, Regulation No. 37 of 2002 provides greater certainty to the rights and
obligations of states exercising the right of archipelagic sea lanes passage. Other
states that designate archipelagic lanes can be expected to pass similar legislation,
using the Regulation No. 37 as a model.
The developments relating to the designation of sea lanes through Indonesia
raise issues on the role of the IMO in developing the legal regimes set out in
UNCLOS. The procedures with respect to the designation of sea lanes within an
archipelagic state give the IMO a role in matters that move beyond safety of nav-
igation and ship-source pollution. The IMO’s role in the designation of sea lanes
also involves considerations of maritime security and military uses of the oceans.
This raises the question of whether the IMO committees are as prepared as they
might be to deal with issues that raise broader issues of maritime security and mil-
itary use of the oceans. It also raises questions of whether the national delegations
to the meetings of the IMO committees are comprised of government officials
who fully understand the military and foreign policy implications of the decisions
of IMO committees on such issues.
In conclusion, the regime set out in Part IV of UNCLOS established a frame-
work that balances the competing rights and interests of archipelagic states and
user states. The framework established in Part IV has been further developed
through the practice of states and the IMO in regard to the partial designation of
sea lanes in Indonesia. Although there are still some unresolved questions and
uncertainties, they can be resolved within the legal framework that has been
established and developed. Therefore, it seems safe to declare that the legal
framework established in Part IV of UNCLOS has proven to be flexible enough
Archipelagic sea lanes passage in Southeast Asia 131
to meet the challenges posed by the evolving political and security environment
in Asia.

Notes
1 Adopted in Montego Bay, Jamaica, 10 December 1982 and entered into force
16 November, 1994. As of 16 September 2005, 149 States are parties to the
Convention. The text of the Convention is available on the home page of the UN
Division for Ocean Affairs and the Law of the Sea at <http://www.un.org/Depts/los
/convention_ agreements/ texts/unclos/closindx.htm> (accessed 15 November 2005).
2 UNCLOS, Article 46.
3 UNCLOS, Article 47(1).
4 UNCLOS, Article 49.
5 UNCLOS, Article 52.
6 UNCLOS, Article 53(2).
7 UNCLOS, Article 54, which provides that most of the provisions of transit passage
apply to archipelagic sea lanes passage.
8 For example, the right of transit passage is referred to as a freedom in Article 38(2) and
the right of archipelagic sea lanes passage is only referred to as a right. Also, Article
53(5) provides that archipelagic sea lanes must be defined by a series of continuous
axis lines, and ships and aircraft must not deviate more than 25 nautical miles to either
side of those axis lines when exercising their right of passage. There is no such
provision for straits used for international navigation. In addition, Article 233 makes it
clear that the littoral states may take enforcement measures against a foreign ship in a
strait used for international navigation if that ship commits a violation of its laws
causing or threatening major damage to its marine environment. There is no equivalent
provision with respect to ships in archipelagic sea lanes, although one could argue that
an equivalent right is inherent in the sovereignty of the archipelagic state. The absence
of an equivalent provision in Part IV has been described as an anomaly which may
possibly be an oversight in drafting. See R. R. Churchill and A. V. Lowe, The Law of
the Sea, Third Edition, (Yonkers, NY): Manchester University Press, 1999, pp.127–8.
9 UNCLOS, Articles 38(1) and 53(2).
10 UNCLOS, Article 17.
11 UNCLOS, Article 39(1)(c) and 54.
12 UNCLOS, Article 20.
13 UNCLOS, Article 19(2)(e).
14 UNCLOS, Articles 44 and 54.
15 UNCLOS, Article 25(3).
16 UNCLOS, Articles 42 and 54.
17 UNCLOS, Article 39(2) and 54.
18 UNCLOS, Articles 42 and 54.
19 UNCLOS, Article 21.
20 UNCLOS, Article 41.
21 UNCLOS, Article 53(9).
22 UNCLOS, Article 53(1).
23 UNCLOS, Article 53(4).
24 UNCLOS, Article 53(6).
25 UNCLOS, Article 53(2).
26 UNCLOS, Article 53(12).
27 MSC 67/7/2, Government of Indonesia Submission, 30 August 1996.
28 MSC 67/7/3, Government of Australia Submission, 5 September 1996.
29 MSC 67/22, Report of the Maritime Safety Committee on its sixty-seventh session,
19 December 1996, Paras. 7.38–7.41.
132 Robert Beckman
30 Ibid., Para.7.40; MSC 67/22/Add.1, Annex 16, Terms of Reference for NAV Sub-
Committee on Adoption of Sea Lanes in Archipelagic Waters.
31 NAV 43/15, Paras. 3.18 to 3.26 and Annex 4.
32 NAV 43/3/10, Adoption of sea lanes in archipelagic waters, normal routes through the
Indonesian archipelago, Submitted by the United States, 18 April 1997, p. 1.
33 Ibid., p. 2.
34 NAV 43/3/14, Normal passage routes though the Indonesian Archipelago, Submitted
by Australia, 16 May 1997.
35 Ibid.
36 See R. Warner, ‘Implementing the archipelagic regime in the International Maritime
Organization’, in D. R. Rothwell and S. Bateman (eds) Navigational Rights and
Freedoms and the New Law of the Sea, The Hague; Boston: Kluwer Law
International, 2000, pp. 170–87.
37 Resolution MSC.71(69), Adoption of Amendments to the General Provisions on
Ships’ Routeing, adopted on 19 May 1998, Report of the Maritime Safety Committee
on its sixty-ninth session, Annex 8, MSC 69/22/Add.1 (General Provisions on Ships’
Routeing).
38 Ibid., p. 3.
39 Ibid., pp. 3–4.
40 Ibid., p. 5.
41 On Indonesia’s baselines and maritime boundaries generally, see V. L. Forbes,
Indonesia’s Maritime Boundaries, Kuala Lumpur: Malaysian Institute of Maritime
Affairs, 1995.
42 MSC 69/5/2, Designation of certain sea lanes and air routes thereabove through
Indonesian archipelagic waters, 6 February 1998.
43 Ibid., Para. 5.
44 Ibid.; MSC 69/22, Report of the Maritime Safety Committee on its sixty-ninth
session, 29 May 1998, Para. 5.23.
45 General Provisions on Ships’ Routeing, Para. 3.12.
46 General Provisions on Ships’ Routeing, Para. 3.5.
47 Resolution MSC.72(69) Adoption, Designation and Substitution of Archipelagic Sea
Lanes, adopted on 19 May 1998, Report of the Maritime Safety Committee on its
sixty-ninth session, Annex 9, MSC 69/22/Add.1.
48 SN/Circ.206, 8 January 1999, Guidance for Ships Transiting Archipelagic Waters.
49 Ibid., Annex, p. 1.
50 Ibid., Annex, p. 2.
51 Ibid.
52 SN/Circ.200/Add.1, Adoption, Designation and Substitution of Archipelagic Sea
Lanes, 3 July 2003.
53 NAV 43/3/10, Adoption of sea lanes in archipelagic waters, normal routes through the
Indonesian archipelago, p. 1.
54 Ibid.
55 State Department telegram to the US Embassy in Jakarta concerning archipelagic
claims, Digest of United States Practice in International Law 2003, 8 August 2003,
pp. 760–2. Available online at: <http://www.state.gov/s/l/2003/44332.htm> (accessed
15 November 2005).
56 Ibid., p. 3.
57 Ibid., pp. 3–4.
58 State Department telegram to the US Embassy in Jakarta concerning archipelagic
claims, pp. 760–2. Available online at: <http://www.state.gov/s/l/2003/4347.htm>.
59 The Philippines Declarations of 10 December 1982 and 8 May 1984, the Russian
Federation (USSR) Objection of 25 February 1985, the Australia Objection of
3 August 1988, and the Philippines Declaration Concerning the Objection by
Australia are reprinted in E. D. Brown, The International Law of the Sea, Brookfield,
Archipelagic sea lanes passage in Southeast Asia 133
Vermont: Dartmouth, 1994, Volume II, pp. 100–3. For the US objection, see J. A.
Roach and R. W. Smith, United States Responses to Excessive Maritime Claims,
Second Edition, Boston: Martinus Nijhoff, 1996, pp. 401–3.
60 Report of the Maritime Safety Committee on its sixty-ninth session, 29 May 1998,
MSC 69/22, pp. 20–1.
61 L. M. Alexander, Navigational Restrictions with the New Law of the Sea Context:
Geographical Implications for the United States, Rhode Island: Offshore Consultants
Inc., 1986.
62 See J. L. Batongbacal, ‘Barely skimming the surface: archipelagic sea lanes
navigation and the IMO’ in A. G. Oude Elferink and D. R. Rothwell (eds) Oceans
Management in the 21st Century: Institutional Frameworks and Responses, Leiden,
Boston: Martinus Nijhoff, 2004, pp. 49–68; J. L. Batangbacal, ‘A Philippine
Perspective on Archipelagic State Issues’, Maritime Studies, January–February 2002,
pp. 18–31.
63 Articles 39(2) and 54, UNCLOS.

Appendix 9.1 Indonesian Archipelagic Sea Lanes, Indonesian Government Regulation


Number 37, 2002, Annex VII, June 28, 2002, as circulated by the IMO on 3 July 2003 in
SN/Circ.200/Add.1.
10 The US Regional Maritime
Security Initiative and US grand
strategy in Southeast Asia
Christian-Marius Stryken

The United States’ Regional Maritime Security Initiative (RMSI) is part of the US
defence transformation process and the new sea basing strategy. The RMSI is
politically wrapped in terms of preventing terrorism and piracy, but is part of a
much larger transformation of US forward presence. The transformation of US
sea power – the Sea Power 21 Concept – aims to transform US grand strategy, and
precedes the RMSI introduced in 2004. This chapter, however, will explore the
ways in which the RMSI is one element of US adaptation of a grand strategy in
Southeast Asia.
The introduction of the RMSI caused regional resentment, in particular from
Indonesia and Thailand, while Singapore endorsed the initiative. Concerns about
US infringement on national sovereignty primarily explain the scepticism. The
RMSI was initially reported to involve US patrolling in the Malacca Strait. This
reporting was based on a statement by Admiral Fargo before the House Armed
Services Committee, United States House of Representatives: ‘You know, we’re
looking at things like high-speed vessels, putting Special Operations Forces on
high-speed vessels, putting, potentially, Marines on high-speed vessels so that we
can use boats that might be incorporated with these vessels to conduct effective
interdiction in, once again, these sea lines of communications where terrorists are
known to move about and transmit throughout the region’.1
The prospect of patrolling the Malacca Strait was later claimed to be ‘misre-
ported’. Secretary of Defense Donald Rumsfeld reassured that ‘[t]here is no
intent, implication, or anything in anybody’s words that should imply or state
bases or additional forces in the Straits of Malacca’.2
In developing the RMSI the US will at various stages engage regional and
other allies, friends and security partners in different fashions. The RMSI is only
in its infancy, and it is likely to take years before the initiative is realized in its full
potential.3 The US is aiming to enhance maritime security by strengthening bilat-
eral cooperation between the strait states backed by US ‘technology, training and
intelligence-sharing’.4 The US observes a need to enhance communications and
information sharing equipment. The initiative is not intended to establish a new
treaty based on security relations, but encourages flexible modes of security
cooperation in order to strengthen US bilateral relations and enhance support for
US security goals. The RMSI is about a lot more than potentially patrolling the
US grand strategy in Southeast Asia 135
Malacca Strait. The initiative has implications for the US forward military pres-
ence and by implication US hegemonic grand strategy in the region.
Although the RMSI aims to address piracy, terrorism and the proliferation of
weapons of mass destruction (WMD), the region in which the RMSI is developed
is also marked by maritime rivalry. And, as one observer points out, ‘[t]he
Southeast Asian states acknowledge that the USA and China are strategic com-
petitors and that Southeast Asia is not able to opt out of this competition’.5
It has been suggested that the strategic maritime rivalry in Southeast Asia is
putting the strait states of Singapore, Malaysia, Indonesia and Thailand in a pecu-
liar position. ‘Rising tension between China and America worries the Southeast
Asians, and they dread being forced to choose sides’.6 A prevalent US perspective
heralds that China ‘is pressing on the vital Malacca Strait’.7
Although the RMSI is politically wrapped in terms of terrorism and piracy, this
author would agree with Layne, who suggests that ‘[t]he war on terrorism, in
other words, is merely an interlude in international politics, not the harbinger of
everlasting global harmony based on acceptance of U.S. primacy’.8
That is the context of the US RMSI initiative and the peculiar situation in
which the strait states find themselves. ‘Because Southeast Asia cannot provide a
credible deterrent to China, continued U.S. military presence is a precondition for
the ASEAN’.9

The instruments of the RMSI


There are five elements of the RMSI: First, improving situational awareness and
information sharing. This will be pursued by ‘leveraging technology to build and
share a clear picture of the maritime environment’.10
Second, improving responsive decision making architectures where ‘domestic
and international command and control processes must be fast enough to be rele-
vant’ in order to offer ‘timely responses to maritime threats’.
Third, improving maritime interdiction capabilities for situations after a ‘deci-
sion has been made to act against an emerging threat’. According to the US
initiative, such capabilities would involve ‘law enforcement or customs vessels,
but military forces may be needed for more organized threats, especially on the
high seas’.
Fourth, enhancing coast guards in the region is required to facilitate integra-
tion with naval forces. Moreover, national coast guards would need to cooperate
more closely with harbour security agencies.
Fifth, as the RMSI is aimed at not only employing military force, improving
the cooperation of ‘a wide array of agencies and ministries to synchronize all ele-
ments of our regional capability’ is essential.11
The RMSI may result in the US providing capacities and capabilities, and
these capacities and capabilities could be in the form of cooperative security loca-
tions (CSL) onshore. The US Department of Defense (DoD) publications outline
a spectrum of basing access. A CSL is the least ambitious basing option, in con-
trast to a main operating base (MOB) and forward operating site (FOS).12
136 Christian-Marius Stryken
In the DoD’s report to the US Congress it is declared: ‘We seek to establish a
network of FOSs and CSLs to support the global war on terrorism and to provide
multiple avenues for access for contingency operations. Such facilities will also
serve to expand US and host-nation training opportunities, helping our partners
build their own capacity in areas such as counter-terrorism. Finally, we seek to
take advantage of emerging opportunities with allies and security partners who
favor expanded practical relationships in support of our global posture goals’.13
The network of desired FOSs and CSLs are addressing the security concerns
of the RMSI. However, given the fact that US allies and partners around the
Malacca Strait have unequal relations with the US, and perceives US presence
differently, it is not likely that the RMSI will develop into CSLs in Indonesia and
Malaysia. That is all the more likely for Thailand and certainly Singapore, which
according to Harkavy, writing in Naval War College Review, almost has a de facto
main operating base at the Sembawang port facility.14
In any case, the RMSI will clearly facilitate practical military cooperation and
encourage greater allegiance with the US. Improving situational awareness and
information sharing by dissemination of US technology, the creation of respon-
sive decision-making architectures, the improvement of maritime interdiction
capabilities and the enhancement of coast guards in the region, which are the aims
of the RMSI, will strengthen US regional influence.
In spite of the scepticism towards the RMSI, the US is pleased that Malaysia is
upgrading its coast guard to patrol the Strait of Malacca better. The deputy prime
minister of Malaysia declared: ‘We should definitely expand our cooperation with
the US and others, in terms of acquiring and sharing quality intelligence’.15 In
May 2005 Malaysia and the US renewed a 10-year logistics cooperation agree-
ment, the Acquisition and Cross-Servicing Agreement (ACSA).16 The US
Ambassador to Malaysia, Christopher LaFleur, believes that the agreement will
enhance ‘strong military-to-military cooperation between our two countries’.17
Singapore plans to conclude a Strategic Framework Agreement with the US to
allow for better ‘structure and organization to our bilateral efforts’.18 Although
Indonesia has reservations about the RMSI, the country is welcoming technical
assistance that will facilitate the building of capacities to tackle maritime threats
such as piracy and terrorism. There are, however, limits to what Indonesia as a
non-aligned state can engage in with the US. Deployment of foreign troops in
Indonesian waters is out of the question. From the US side, concerns have been
voiced that Indonesia is acquiring ‘non-Western military hardware and training
that is incompatible with our own. These conditions move Indonesia further away
from the US sphere of influence’.19 In July 2005 China and Indonesia established
a strategic partnership, which provides technological assistance in developing
indigenous Indonesian missiles with ranges of up to 150 kilometres.20 Such devel-
opments are not perceived favourably by the US, which has decided to end the
deferment of military training with Indonesia.21
The extent to which the RMSI is emphasizing burden sharing or interoperabil-
ity is important. A study analysing the RMSI, co-sponsored by The Stanley
Foundation and the National War College, National Defense University, suggests
US grand strategy in Southeast Asia 137
that ‘...Interoperability may be a polite fiction in U.S. security policy in Southeast
Asia’, while ‘division of labor may be more effective and more politically tolera-
ble’.22 Opting for interoperability runs the risk of creating antipathy in regional
military circles, and may in turn undermine military planning, the report is sug-
gesting. Therefore, it is vital to invite ‘views and needs of Southeast Asian armed
forces into joint exercises and other forms of cooperation’.23 Moreover, the report
suggests that ‘greater consultation on the purpose, agenda, and activities of joint
exercises is needed. Beyond cooperation with allies, these exercises are a show-
case for the benefits of cooperation with the United States’.24
The analyst of Asian affairs, M. Valencia, is certainly correct in arguing ‘that
three strait states must take the initiative and carry most of the load’ as a starting-
point for the RMSI.25 Already the RMSI has paid off in the sense that the US has
succeeded in encouraging ‘regional countries to develop their own regional surveil-
lance and security measures, separate to that of the US. Indonesia, Singapore and
Malaysia have agreed on joint maritime security measures while the member coun-
tries of the Five Powers Defence Agreement (FPDA) are focusing some of its efforts
towards counter terrorism’.26 Another example is the May 2005 joint establishment
by Indonesia and Singapore of the Surface Picture Surveillance System (SURPIC).

Premises of US grand strategy and Southeast Asia


Forward presence is vital to US grand strategy, which is aiming to maintain hege-
mony/primacy and offshore balancing. Forward presence is linked to access and
basing. Forward presence intends to deter the outbreak of war, position the US to
respond rapidly to crises, shape the future security environment through engage-
ment and to demonstrate US resolve in foreign policy objectives.27
The adaptation of US naval strategy intends to make forward presence more
flexible, less vulnerable and more deployable in order to respond to a plethora of
security threats.28 This is essential to maintain hegemony/primacy and offshore
balancing. The objectives of the US Pacific Command (USPACOM) are:
‘Improving the readiness and joint warfighting capability of USPACOM forces is
critical to assuring our friends and allies, dissuading military competition, deter-
ring threats against U.S. interests, and defeating an adversary if deterrence
fails’.29 As the US is scaling down traditional onshore bases (Japan and South
Korea) and planning for Sea Basing of military equipment,30 the US still needs
access to onshore military facilities and to prevent anti-access strategies by states
in the region,31 which may limit US ability to launch military operations onshore.
In scaling down onshore bases and adapting more flexible modes of deploy-
ment, the US is seeking to establish ‘access arrangements that allow it to deploy
forces regularly to countries in these subregions without compromising their
sovereignty’.32 This is vital in order to ensure a ‘degree of interoperability’,
which will allow states to participate in ‘operative coalitions’ of the willing in the
event of future crises.33 Joint military exercises are also important.34 According
to Harkavy, the adaptation of US grand strategy would entail maintaining ‘a very
138 Christian-Marius Stryken
limited number of main operating bases’ and increasing ‘forward operating sites
and cooperative security locations’.35
The CSL, a greater degree of interoperability and joint exercises are of partic-
ular relevance to the RMSI. In order to ensure future US forward presence,
‘link[ing] its capabilities to regional partners will be essential’.36 The prevalence
of US ‘coalitions of the willing’ thinking is evident with respect to the RMSI.
Harkavy describes ‘the mission determines the coalition’ approach as a system
‘largely devoid of an ideological basis for enmity and friendship, a state of affairs
that allows, as was the case in the Europe of the eighteenth and nineteenth cen-
turies, rapidly shifting alliances based on short-term or medium-term expedience
and balance-of-power considerations’.37

Regional security and US concerns


As pointed out the RMSI is politically wrapped in terms of combating terrorism
and piracy, while the initiative is shaped in the context of responding to three out
of four threats identified in the Quadrennial Defense Review (QDR) 2005. These
are what are termed irregular, disruptive and catastrophic threats. Traditional
threats are not addressed by the RMSI.38 Irregular threats are ‘challenges arising
from the adoption or employment of unconventional methods by non-state and
state actors to counter stronger state opponents. Examples include terrorism,
insurgency [and] civil war’. Disruptive threats are ‘future challenges from com-
petitors developing, possessing, and employing breakthrough technological
capabilities intended to supplant our advantages in particular domains of opera-
tion’. Catastrophic threats are ‘challenges involving the surreptitious acquisition,
possession, and possible terrorist or rogue-state employment of WMD or methods
of producing WMD-like effects’.39 These wide-ranging security threats illustrate
that the RMSI is involving far more than terrorism and piracy challenges.40
On a more detailed level, the US security challenges in Southeast Asia are var-
ied yet interlinked. The US focus on the region is largely a ‘security-centred
perspective’, which is underpinned by, in the words of Colin Powell in June 2002,
security ‘first and foremost essential to economic growth and political free-
dom’.41 Among the overall US objectives, guarantees for sea lanes of
communication (SLOC) are paramount given the importance for trade and eco-
nomic development. Achieving this objective is determined on fulfilling overall
general US objectives, such as opposing the use or threat of use of force to resolve
the competing claims on disputed areas, on which the US adopts no position on
legal merits, encouraging diplomatic solutions and a willingness to assist allies,
friends and partners.42 Factors challenging SLOCs are ‘the unstable political rela-
tionship among regional countries, different interpretation over the freedom of the
seas principle, islands’ sovereignty disputes and overlapping maritime jurisdiction
claims, the emerging naval build-up, and non-traditional threats such as pollution,
piracy, drug-trafficking, etc’.43
For the US, which is a user state of SLOCs in Southeast Asia, tension emerges
in its relations with states in the region on the degree of freedom of the seas on the
US grand strategy in Southeast Asia 139
one hand and the concerns of coastal states on the other. Violations of sovereignty,
exploitation of marine resources and protection of the environment disturb states
in the region.44

US relations with states in the region


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

US policy options in Southeast Asia:


bilateralism and multilateralism
D. Farwick, writing in Peacejournalism, has suggested that: America’s evolving
strategy is neither bilateral nor multilateral, except in so far as regional actors
are prepared to support U.S. policy goals. With a few exceptions (most conspic-
uously, Japan) it is designed primarily to enlist security partners when and
where needed, not to develop an integrated strategy based on a more continuous
mutuality of interests.47
140 Christian-Marius Stryken
This author would agree that the main motive of US policy certainly is to enlist
support from allies, friends and partners for US security goals. Yet the ways in
which the US is pursuing security cooperation in the context of the RMSI, the
level of bilateralism and multilateralism truly matter to the relations among the
states in the region and the level of cooperative security in the region.
It has been argued according to one analyst that the regional security order in
Asia is a ‘quasi-hegemonic order, founded upon U.S. military preponderance
but without the conditions to ensure its legitimation’.48 Part of this legitimacy
deficit stems from concern in Southeast Asia that ‘the United States does not
approach the region collectively and that bilateralism still dominates the U.S.
approach’.49 The US should consider engaging allies and partners less top-down
and more based on an egalitarian platform. This presents the US with a policy
dilemma. On the one hand, the US has encouraged greater regional cooperation,
while on the other it is developing bilateral cooperation with selected states,
which might prove more efficient given the relatively weak structures of
regional security cooperation.
The ways in which the US go about developing the RMSI will affect the legit-
imacy of the initiative. It is likely that the RMSI will be perceived as a useful and
legitimate initiative by most states in the region if the US is supporting and
encouraging a strengthening of the ASEAN Regional Forum (ARF), rather than
emphasizing developing bilateral cooperation that creates frictions among the
states in the region concerning the regional role of the US.
There is a prevalent perception that the ARF has not proved an effective
instrument of confidence building and cooperative security. Cooperation in the
context of ASEAN has underlined the need for regional solidarity and empha-
sized the importance of excluding the influence of outside powers in the region.
Many states in Southeast Asia would like the US to approach the region collec-
tively, rather than bilaterally to favoured nations.50 In sum, for the US there exists
a multilateral option in the context of the ARF, which, however, is devalued by
the pattern of self-differentiation vis-à-vis the US. By self-differentiation this
chapter defines practices of distinct relations to the US, that is intimate relations
on the one hand or keeping the US at arms length on the other hand. With respect
to maritime security, excluding outside influence in the region is a primary
objective for Indonesia and Malaysia, while Singapore is increasingly cooperat-
ing with the US. Singapore’s concern about the two larger neighbours is one
reason for its receptiveness to US influence. Moreover, Singapore often refers to
deficiencies in Indonesian and Malaysian maritime security efforts as a pretext
to invite external influence.51
In spite of the general ASEAN reluctance to invite external powers, invitations
of external powers could be based on ‘a desire to create a more complex balance
of power in the region’.52 Resulting from regional concerns about rising Chinese
naval power, opinion ‘towards U.S. presence in the region is ambiguous’.53 Given
this ambivalence stemming from the influence of external powers, this offers
leverage for the US to nurture relations to states in the region, based on the prac-
tice of self-differentiation in the region and flexible modes of US cooperation
US grand strategy in Southeast Asia 141
with selected states to accommodate US and individual state’s security agendas.
On the other hand, for the states in the region:

the best way for the ASEAN countries to check unwanted intervention by any
major external power (the US, China, Japan, India and possibly South
Korea), would be to invite them all on a limited scale, so that the external
powers would balance among themselves. Such a move might put ASEAN
governments in the driver’s seat when it comes to multilateral security coop-
eration in the Straits: outside powers would play supporting roles and leave
enforcement to the littoral states themselves.54

On this particular point ASEAN seems to be lacking cohesion. However,


although the three Malacca Strait states have differing strategic interests and
perceive US influence differently, there is certainly scope for the US to use the
RMSI to offer supporting roles, while the littoral states enhance enforcement of
maritime security individually and jointly in the Malacca Strait. Indonesia and
Malaysia oppose permanent basing of the US fleet in the strait, but welcome
‘bilateral assistance from and joint training with U.S. forces that upgrade local
military capabilities’.55
Opting for bilateral or multilateral approaches is closely related to the issue of
US legitimacy. Adoption of a multilateral approach in order to enhance regional
security cooperation in the context of the ARF could help diminish the US legit-
imacy deficit. Certainly long-term political benefits and stability conducive to
economic progress may result from active efforts to encourage enhanced
regional security cooperation. Although ASEAN and the ARF are already a
proof of ability to invest in greater regional cooperation, these institutions are
relatively weak in terms of establishing binding structures of cooperation.
European integration does not serve as a useful model for Southeast Asia given
the difference in history and not least the decades of effort required to move
beyond the declaratory stage of European security cooperation. Southeast Asia
has to find its own path, and the US may employ the RMSI and other initiatives
to encourage enhanced cooperation in the region. US influence would probably
get greater approval across the region if the regional states could approach the
US as a more united configuration of states.
Adopting this option, however, runs counter to prevalent trends in US foreign
policy thinking. In spite of the rhetorical US endorsement of greater regional
cooperation, the design of the RMSI seems clearly to prioritize developing flexi-
ble modes of cooperation with states in the region. This allows for
self-differentiation among states in the region that may undermine greater
regional cooperation and probably create frictions in the region. Such frictions are
neither beneficial to the level of maritime cooperation required to address com-
mon challenges, nor productive in order to reduce tensions between China and the
US over influence in the region. Importantly, however, ‘there are obvious advan-
tages to bilateralism for short-term policy. For example, it allows a quicker
response to crises’.56 On the other hand, the same report suggests, ‘the United
142 Christian-Marius Stryken
States needs to understand that investing more in multilateralism could reap
rewards in stronger cooperation among Southeast Asian states’.57

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

Notes
1 T. Fargo, ‘Testimony of Adm. Tom Fargo, USN Commander, US Pacific Command
Before The House Armed Services Committee United States House of
Representatives’, Q&A Session, 31 March 2004.
2 D. Rumsfeld, ‘Geography, host attitude affect troop base strategy, Rumsfeld says’,
7 June 2004. Available online at: <http://www.mumbai.usconsulate.gov> (accessed
1 May 2006).
3 M. Richardson, ‘Maritime plan aims to make the region’s waters secure’, The Straits
Times, 26 April 2004.
4 M. J. Valencia, ‘Ensuring Asia’s maritime safety’, Far Eastern Economic Review,
14 October 2004.
5 Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’, Security
Dialogue, vol. 34, no. 1, 2003, pp. 11–24.
6 J. E. Auer and R. Lim, ‘The maritime basis of American security in East Asia’, Naval
War College Review, vol. LIV, no.1, Winter 2001. Available online at:
<http://www.nwc.navy.mil/press/Review/2001/Winter/art3-w01.htm> (accessed
1 May 2006).
7 Ibid.
US grand strategy in Southeast Asia 143
8 C. Layne, ‘Offshore balancing revisited’, The Washington Quarterly, vol. 25, no. 2,
Spring 2002, pp. 233–48. This article also offers a more theoretical definition of
primacy and offshore balancing.
9 Odgaard, ‘The South China Sea: ASEAN’s security concerns about China’, p. 23.
10 This and the following quotations explaining the five elements are from T. Fargo,
‘Responding to Transnational Threats’, APCSS Biennial Conference, Ilikai Waikiki
Hotel Ballroom, 16 June 2004. Available online at: <http://russia.shaps.
hawaii.edu/security/us/2004/20040616_fargo.html> (accessed 1 May 2006).
11 The design of the RMSI is compatible with the US global defence posture. The
Department of Defense outlined five criteria of the posture in a report to the US
Congress in September 2004. First, relationships aim to ensure ‘interaction with allies
and partners at all levels’. Second, activities with allies for ‘training, exercises, and
operations’. Third, provide facilities ‘where forces live, train, and operate, and where
they preposition materiel’. Fourth, establish legal arrangements as a ‘framework of
presence, including status-of-forces agreements, both bilateral and multilateral’.
Fifth, aiming at ensuring global sourcing and a surge for a ‘global-force management
system for power projection’. See ‘Strengthening U.S. Global Defense Posture’,
Report to Congress, Department of Defense, Washington, D.C., September 2004, pp.
7–8. Available online at: <http://www.naid.org/ResourceCenter/Global_ Posture.pdf>
(accessed 1 May 2006).
12 Main operating base: ‘A MOB is an overseas, permanently manned, well protected
base, used to support permanently deployed forces, and with robust sea and/or air
access.’ Forward operating site: ‘A FOS is a scalable, “warm” facility that can
support sustained operations, but only with a small permanent presence of support
or contractor personnel. A FOS will host occasional rotation forces and may contain
pre-positioned equipment’ (http://www.eucom.mil). Harkavy suggests that the
Sembawang port facility in Singapore ‘may be approaching, de facto, the status of a
main operating base’. See R. E. Harkavy, ‘Thinking about bases’, Naval War College
Review, vol. 58, no. 3, Summer 2005. Available online at: <http://www.nwc.
navy.mil/press/Review/2005/summer/art1-su05.htm> (accessed 1 May 2006).
13 ‘Strengthening U.S. Global Defense Posture’.
14 Harkavy, ‘Thinking about bases’.
15 S. Ramachandran, ‘Divisions over terror threat in Malacca Straits’, Asia Times, 16
June 2004.
16 ‘Malaysia and US renew defence pact, discuss Malacca Strait security’, AFX, 9 May
2005.
17 J. Singh, ‘U.S., Malaysia extend defense agreement’, Associated Press, 9 May 2005.
Available online at: <http://www.marinecorpstimes.com/story.php?f=1–292925-
837312.php> (accessed 1 May 2006).
18 T. Fargo, ‘Responding to transnational threats’.
19 Ibid.
20 ‘Chinese missile aid for Indonesia: how strategic is a partnership?’, IISS Strategic
Comments, vol. 11, issue 6, August 2005.
21 D. Isenberg, ‘US, Indonesia almost back in step’, Asia Times, 9 September 2005.
Available online at: <http://www.atimes.com/atimes/Southeast_Asia/GI09Ae03.html>
(accessed 1 May 2006).
22 US Security Relations with Southeast Asia: A Dual Challenge Southeast Asia in the
Twenty-First Century: Issues and Options for US Policy, Report Co-sponsored by The
Stanley Foundation and National War College, National Defense University, 11–12
March 2004, Washington, DC., p. 2. Available online at: <http://www.stanley
foundation.org/reports/SEAa04pb.pdf> (accessed 1 May 2006).
23 Ibid.
24 Ibid.
25 M. J. Valencia, ‘Ensuring Asia’s maritime safety’.
144 Christian-Marius Stryken
26 A. Borgu, ‘Maritime terrorism: an Australian perspective’. A presentation to the
Workshop on Maritime Counter-Terrorism of the Observer Research Foundation,
New Delhi, 29–30 November 2004, p. 9. Available online at: <http://www.aspi.org.
au/pdf/Maritime_terrorism%20_India_AB.pdf> (accessed 1 May 2006).
27 S. J. Tangredi, ‘The fall and rise of naval forward presence’, Proceedings of the
United States Naval Institute, vol. 125, issue 5, May 2005, p. 4.
28 These include irregular threats, catastrophic threats, traditional threats and disruptive
threats.
29 Fargo, ‘Responding to transnational threats’.
30 Sea Basing refers to ‘enhanced operational independence and support for joint
forces provided by networked, mobile and secure sovereign platforms operating in
the maritime domain’ (R. O’Rourke, ‘Transform and roll out: the USN’s approach
to change’, Jane’s Navy International, 1 April 2004). The US is considering using
sea power autonomously in order to overcome regional anti-access and denial
measures. The US Sea Power 21 Concept and the naval transformation foresee
limited reliance on offshore support. The Sea Power 21 concept intends to transform
the navy from prosecuting ‘war at sea’ to launching ‘war from sea’. ‘Sea Power 21’
is based on three primary areas; Sea Strike, Sea Shield and Sea Basing. (A. Koch,
‘US Navy outlines vision for Sea Power 21 concept’, Jane’s Defence Weekly, 11
December 2002). Sea Strike intends to apply ‘expanded power projection that
employs networked sensors, combat systems and warriors to amplify the offensive
impact of sea-based forces’ so as to make possible ‘the projection of precise and
persistent offensive power’. ‘Sea Shield refers to global defensive assurance
produced by extended homeland defence, sustained access to littorals and the
projection of defensive power deep overland’ (R. O’Rourke, ‘Transform and roll
out: the USN’s approach to change’).
31 Anti-access – also referred to as area denial, and in its original conception, as anti-
navy strategies – is the ability to deny US forces entry to a region to conduct combat
operations. See Tangredi, ‘The fall and rise of naval forward presence’, p. 4.
32 T. Cliff and Wormuth in ‘Transforming US overseas military presence: evidence and
options for DoD’, Volume I: Main Report, IDA Paper P-3707, Institute for Defense
Analyses, July 2002, pp. 20–1. Available online at: <http://www.comw.org
/qdr/fulltext/0207thomason.pdf>, (accessed 1 May 2006).
33 R. A. Cossa, ‘U.S. Asia policy: does an alliance-based policy still make sense’, Issues
& Insights, no. 3–01, Pacific Forum CSIS, Honolulu, September 2001, p. ix.
34 L. T. Lee, ‘China, the USA and the South China Sea conflicts’, Security Dialogue,
vol. 34, no. 1, March 2003, p. 35.
35 Harkavy, ‘Thinking about Bases’.
36 S. E. Wimbush, ‘Maritime security in East Asia in 2025: critical uncertainties’, Paper
prepared for the Center for Strategic and International Studies – American-Pacific
Sealanes Security Institute conference on Maritime Security in Asia, 18–20 January
2004, Honolulu, p. 1.
37 Harkavy, ‘Thinking about bases’.
38 Traditional threats ‘are challenges posed largely by states employing legacy and
advanced military capabilities and recognizable military forces, in long-established,
well-known forms of military competition and conflict’, see: A. K. Cebrowski,
‘4Trends in Security Cooperation‘, Office of Force Transformation, Department of
Defense, slide 6, 15 June 2004. Available online at: <http://www.au.af.mil/au/awc/
awcgate/transformation/oft_cebrowski_security_challenges.pdf> (accessed 1 May
2006).
39 K. Gudgel and J. Spencer, ‘The 2005 Quadrennial Defense Review: Strategy and
Threats’, WebMemo, Heritage Foundation, 20 April 2005. Available online at: <http://
www.heritage.org/Research/NationalSecurity/wm728.cfm> (accessed 1 May 2006).
See also Cebrowski, ‘Trends in security cooperation’.
US grand strategy in Southeast Asia 145
40 The RMSI is also a platform for the US Proliferation Security Initiative (PSI).
41 M. J. Montesanto and S. H. Quek, ‘The United States in Southeast Asia: deepening
the rut?’ Orbis, vol. 48, no. 2, Spring 2004, p. 321.
42 Lee, ‘China, the USA and the South China Sea conflicts’, p. 33.
43 G. Ji, ‘SLOC security in the Asia Pacific’, Center Occasional Paper, Asia-Pacific
Center for Security Studies, Honolulu, February 2000.
44 S. S Park, ‘New maritime order in the Asia Pacific toward the 21st century’, Paper for
the 12th International Conference of SLOC Studies, Seoul, 6–7 April 1999.
45 The US is allied to Australia, Japan, Korea and Singapore in the nature of mutual
security treaties, which involves standing commitments and operational geo-strategic
interests.
46 T. Fargo, ‘Military operations and law conference’, Victoria, British Columbia, 3 May
2004, p. 44. Available online at: <http://www.pacom.mil/speeches/sst2004/040503
milops.shtml> (accessed 1 May 2006).
47 D. Farwick, ‘America’s alliances in East Asia. Purposes and prospects’,
Peacejournalism, issue 8, June 2005. Available online at: <http://www.peace
journalism.com/ReadArticle.asp?ArticleID=3142> (accessed 1 May 2006).
48 A. Acharya, ‘Terrorism and security in Asia: redefining regional order?’, Working
Paper No. 113, Asia Research Centre, Murdoch University, Perth, Western Australia,
October 2004. Available online at: <http://wwwarc.murdoch.edu.au/wp/wp113.pdf>
(accessed 1 May 2006).
49 US Security Relations with Southeast Asia, p. 4.
50 Ibid.
51 Y. Sato, ‘Malacca Straits security reflects hazy dividing line’, Asia Times, 14 June
2004. Available online at: <http://www.atimes.com/atimes/Southeast_Asia/FG14Ae
01.html> (accessed 1 May 2006).
52 Ibid.
53 Ibid.
54 Ibid.
55 ‘Malaysia has participated in joint naval exercises with the United States. And
Indonesia’s lack of participation is not the result of its reluctance, but of US sanctions
imposed after human-rights violations were committed by the Indonesian military in
East Timor’, Ibid.
56 US Security Relations with Southeast Asia, p. 4.
57 Ibid., p. 1.
11 Satellite-based tracking of ships as
global crime control ISPS Code, AIS,
SSAS and LRIT
Jan Georg Christophersen

The purpose of this chapter is to discuss how satellite-based electronic tracking of


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

The International Ship and Port Facility Security Code (ISPS Code)
In December 2002, slightly more than a year after the 11 September 2001 attacks,
the International Maritime Organization (IMO) adopted the ISPS Code. The code
is incorporated as a special security chapter (XI-2) in the International
Convention for the Safety of Life at Sea (SOLAS), and entered into force on
1 July 2004.1 By entering the security chapter into SOLAS, the code achieves
mandatory status without ratification delay. The code is valid for cargo vessels of
500 gross tonnages and above, and for passenger vessels and mobile offshore
drilling units that are engaged in international trade. Security measures for less
than 500 gross tonnage vessels will be disseminated at the discretion of the indi-
vidual member states. The IMO solution is practical if one looks to the vast
number of fishing vessels, small boats and the variety of usages. However, when
faced with recent terror attacks and armed robbery at sea, it seems that the time
has come to introduce security measures for less than 500 gross tonnage vessels
as well.2 The argument goes that even small ships and boats, used strategically
and in the right location, at the right time, could have a major disruptive effect on
human life, the environment and the local, regional and international shipping
Satellite-based tracking of ships as global crime control 147
industry. Therefore finding ways to handle successfully the security question for
non-SOLAS vessels is a vital and necessary component in addition to the work
already undertaken.
In essence, the code takes the approach that ensuring the security of ships and
port facilities is a risk management activity and to determine what security measures
are appropriate, an assessment of the risk has to be made in each particular case.
The purpose of the code is to provide a standardized, consistent framework for
evaluating risk, enabling governments to offset increases in threat with improve-
ments regarding the vulnerability of ships and port facilities through the
determination of appropriate security levels and corresponding security measures.
To begin the process, each contracting government ought to conduct ship and
port security assessments.3 Security assessments will have three essential compo-
nents. First, they must identify and evaluate important assets and infrastructures
whose proper functioning is critical to the port facility as well as to those areas or
structures that, if damaged, could cause significant loss of life or damage to the
port facility’s economy or environment. Second, the assessment must identify the
actual threats to those critical assets and infrastructures in order to prioritize secu-
rity measures. Finally, the assessment must address the vulnerability of a port
facility by identifying its weaknesses in physical security, structural integrity, pro-
cedural policies, communications systems, transportation infrastructure, utilities
and other areas within a port facility that may be a likely target. Once these
assessments have been completed, the contracting government can accurately
evaluate risks. The risk management concept is embodied in the code through a
number of minimum functional security requirements for ships and port facilities.
Because each ship (or class of ships) and each port facility presents different
risks, the method in which they meet the specific requirements of the code will
be determined and eventually approved by the control institutions or the con-
tracting government, as the case may be. In order to communicate the threat at a
port facility or ship, the contracting government will set the appropriate secu-
rity level. Security levels 1, 2 and 3 correspond to normal, medium and high
threat situations respectively.
Only states that are contracting governments to SOLAS have a legal obligation
to comply with the requirements of the ISPS Code and to submit information to
the IMO. The organization agreed to improve the overall maritime security by
introducing the ISPS Code by 1 July 2004.
The biggest change since 1 July 2004 is that the contracting governments to
the 1974 SOLAS Convention are able to exercise control over ships formally in
accordance with the provisions of the security chapter (XI-2) and of the ISPS
Code. The new requirements form the international framework through which
governments, ships and port facilities can cooperate and deter acts that threaten
security in the maritime transport sector. The new regulatory maritime security
regime will have a huge impact on those port facilities and ship operators who had
not already adjusted to the increased threat to maritime security in the current cli-
mate. They will need to catch up, according to the rules and guidelines in the ISPS
Code. For those governments and ship operators who have implemented
148 Jan Georg Christophersen
enhanced security regimes, the ISPS Code standardizes globally the security mea-
sures. The point is that there is a very real threat. We have already seen attacks on
maritime infrastructures elsewhere (such as in Iraq and Yemen). The whole idea of
the ISPS Code is to reduce the vulnerability of the industry to attack, thus coun-
tering the threat and reducing the risk. A great deal of work has been done in a
short time to implement the ISPS Code. However, the work of shipping compa-
nies and the port industry are no where near consistent.
There are potential commercial benefits to the maritime industry in imple-
menting the code. It seems clear that, in the end, implementation of the code
should provide considerable cost–benefit for the port industry as a whole and for
individual ports. By putting in place an effective security regime,4 ports will be
able to continue to participate fully in global trade since the potential economic
consequences of a major security breach, which might result in disruption or even
port closure, are serious indeed.
To date it appears that ships generally comply with the security requirements
of the ISPS Code just as well as they do with all other regulations. However, if the
seafarer is asked, he will consider piracy and armed robbery to be the most press-
ing security problems.
The main international focus is increasingly directed towards supply chain
security. The ISPS Code is dealing with a part of this, which means that no one
knows what the full implications for the ISPS Code on for example the World
Customs Organization (WCO) framework will be.
The ISPS Code cannot be effectively enforced because it depends on the effi-
ciency of the flag state in establishing control regimes. Some flag states even lack
an administration in place. Part of the problem lies in the ‘flags of convenience’,
which today has evolved into a crude form of jurisdiction shopping. The IMO is
attempting to establish a system of flag state control but these will be voluntary
and only as effective as the flag state is prepared to make them, because the IMO
has no enforcement power of its own. Lenient regulations of enforcement have
caught the IMO in a vicious cycle because third world countries have increased
their power in the IMO (founded by membership fees based on the size of a mem-
ber country’s ‘fleet’). These countries then use their power to keep the
international standards from rising too high, and the substandard fleet continues
to do business.

The Automatic Identification System (AIS)


The AIS is a maritime vessel traffic system imposed by the IMO,5 designed to be
capable of providing information about the ship to other ships and to coastal
authorities automatically. The system broadcasts position reports and short mes-
sages with information about the ship and the voyage. More specifically, the
regulation requires that the AIS shall provide information – including the ship’s
identity, type, position, course, speed, navigational status and other safety-related
information – automatically to appropriately equipped shore stations, other ships
and aircraft. Using frequencies in the maritime very high frequency (VHF) band,6
Satellite-based tracking of ships as global crime control 149
the coverage is similar to other VHF applications, and is essentially dependent on
the altitude of the antenna. For ship-to-ship communications, the range is typi-
cally 20 nautical miles and ship-to-shore up to 40 nautical miles. According to the
International Association of Maritime Aids to Navigation and Lighthouse
Authorities (IALA), the purpose of the AIS is ‘to improve the maritime safety and
efficiency of navigation, safety of life at sea and the protection of the marine envi-
ronment’. Regulation 19 of SOLAS Chapter V, ‘Carriage requirements for
shipborne navigational systems and equipment’, sets out navigational equipment
to be carried on board ships, according to ship type. The regulation requires AIS
to be fitted aboard all ships of 300 gross tonnes and upwards engaged on interna-
tional trade. To be fully implemented on 1 July 2007, the system will cover all
ships with the exception of cargo ships and fishing vessels in national trade built
before 1 July 2002 of less than 10,000 gross tonnes.
However, nationally and internationally there is also a need for a long-range
identification and tracking service. A space-based AIS receiver in low earth orbit
and a gateway to the existing infrastructure will give an excellent opportunity for
large-area ocean surveillance at a small investment.7

The Ship Security Alert System (SSAS)


The SSAS regulations were adopted by the IMO to enhance maritime security in
response to the asserted increasing threat from terrorism 8 and piracy.9 After 1 July
2004, most deep-sea passenger and cargo vessels must be fitted with a device that
can send an alert message containing the ship’s identification (ID) and position
whenever the ship is under threat. The distress message must be activated covertly
from a switch on the navigation bridge or other shipboard locations, and transmit-
ted only to the designated authority without being received by other ships or
raising an alarm on the ship under attack.
The demands of the SSAS exist in SOLAS (Reg. XI-2/6), as standard perfor-
mance (Res. MSC.147 (77)) and as guidelines (MSC, Circ.1072). Unfortunately,
the demands are incomplete because rules have not been laid down for the
approval of the type of equipment. There are reasons to believe that false alarms
could be a problem for the SSAS equipment. Therefore, as soon as an alert mes-
sage is received, the authority and the company have a duty to control the
substance of the received message.10
The following vessels are covered by the regulation and are required to have
an SSAS installed: passenger ships, including high-speed passenger crafts since
1 July 2004; oil tankers, chemical tankers, gas carriers, bulk carriers and high-
speed cargo vessels of 500 gross tonnes and upwards, no later than 1 July 2004;
other cargo vessels of 500 gross tonnes and upwards, no later than first survey on
or after 1 July 2006. The requirements are specified in the amendments to
SOLAS, chapter XI, Annex 6 (December 2002). Fittings and installation can
easily be put in place.
The SSAS is designed to raise alarm ashore in reaction to security threats or
security incidents by notifying the ship’s flag state and should do so without
150 Jan Georg Christophersen
alerting ships or coastal states in the vicinity or giving any indication on board.
This is based on the recognition that security is political and requires different
responses to distress or emergency on board.
The SSAS is also able to continuously monitor a ship’s location back to the
fleet-operating company at customer-defined intervals. The precise location and
status of a ship in a fleet can be tracked on any desktop or laptop computer con-
nected to the Internet. Security is ensured with a user name and password login.
The fleet managers can also interrogate the satellite terminal on board the ship for
a position report, or remotely change the tracking frequency.
The message shall be transmitted to more than one recipient, in order to
enhance the resilience of the SSAS. The authority should ensure that its desig-
nated proper recipients of SSAS are capable of processing the information
received with the highest priority. This may require the recipients to have a
twenty-four hours, seven days a week system of operation in place.
The IMO has defined a set of mandatory requirements to improve the security
of ships. The SSAS shall provide ships with two alarm buttons, which can be acti-
vated in case of a piracy or terrorist attack. The alarm is a covert signal, which
will have no sound and no flashing lights so that it is in no way obvious to any
intruders on board the ship. Ships fitted with SSAS shall maintain the system in
operation at all times except where international agreements, rules or standards
provide for the protection of navigational information.
The majority of the SSAS alarms have been false messages. Therefore, many
coastal states and parts of the shipping industry have questioned the effectiveness
of SSAS as a security means. Actually, in parts of the world, there will be no reac-
tion to an SSAS alert message whatsoever, and that seems to remain the situation
in the near future. One of the reasons is that the United Nations Convention on the
Law of the Sea (UNCLOS)11 has not solved the conflict between coastal states
and maritime user states. Insufficient coast guard and naval capacity to handle a
real terrorist or piracy situation is also an important reason.

Long-range identification and tracking (LRIT)


The international society is looking for systems to control the complete interna-
tional maritime fleet. In that respect, the IMO has started work on a satellite-based
system for LRIT.12 According to current plans, an LRIT system will enable a cen-
tral unit to track all ships subscribing to the system wherever these ships are
sailing. The intention is to place equipment on ‘all’ ships programmed to send
position reports systematically to a central database. This means that the absolute
minimum of information to be submitted by the participating ships will be as fol-
lows: the identification of the ship, the position of the ship and the time when the
position was recorded. The rate of updating each ship’s position has been discussed
at various levels at the IMO. From the discussions so far, there may be a need for
having a variable reporting rate determined by criteria not yet decided.
Another question raised at an early stage concerned the extent of coverage for
coastal states in tracking passing ships not calling at any of its ports. The IMO is
Satellite-based tracking of ships as global crime control 151
also currently discussing revision of their Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) to
allow interdiction on the high seas of a foreign ship which is suspected of involve-
ment in terrorist-related activities.
The preliminary drafted SOLAS regulation developed by the Sub-Committee
on Radiocommunications and Search and Rescue (COMSAR) reporting rate is
described as a one-hour reporting rate when the ship is less than 300 nautical miles
from the coast of any state, and once every four hours when outside this range. The
central database shall distribute data to the right receiver. The legitimate receiver is
committed to use information to ward off an attack from pirates and terrorists, pro-
tect against environmental catastrophes, and in general increase safety at sea.
In broad terms, LRIT provides the same information and capabilities as the AIS
for identifying and tracking ships at sea.13 However, the range of the AIS is limited
within the VHF range and the LRIT is planned to provide a global coverage. In
terms of international implementation, the current plan is to include a regulation in
SOLAS, chapter XI-2, where LRIT will be introduced as mandatory for all ships
that are required to comply with the ISPS Code. This is the road now taken.
The Maritime Safety Committee (MSC) met in London for its seventy-seventh
session in May–June 2003 to discuss the subject of LRIT. It was agreed that as
well as flag states and port states, coastal states have an interest in vessels that are
exercising the right of innocent passage past their coast. However, there were dif-
ferent views on how far off their coast this interest might extend. The United
States maintained that since the purpose of LRIT is to give a coastal state suffi-
cient time to evaluate and if necessary respond to a security risk posed by a ship
off its coast, the distance should be set at a level that achieves this purpose. From
the US side it was argued that this required the distance to be 2,000 nautical miles.
Other suggestions ranged from 50 to 1,000 nautical miles. The Norwegian posi-
tion on this occasion was 400 nautical miles.
It was suggested that since from the technical point of view a system would be
designed to enable flag states to track vessels under their jurisdiction anywhere in
the world, port states and coastal states should be allowed to decide for them-
selves how far off their own shore they wish to track vessels. However, given that
in certain cases, the coastal state itself could pose a security risk, some delegates
felt that it was important that flag states have the right to restrict or even deny
LRIT access to their vessels if they saw fit. In this respect, the MSC concluded at
its seventy-eighth session in May–June 2004 that the SOLAS contracting govern-
ments were not yet ready to discuss this aspect. However, once this aspect was
resolved, many of the remaining pending issues, including the availability of suit-
able technologies, were expected to fall into place. The MSC considered the issue
and agreed that for the time being there was insufficient data to make it possible
to carry out an impact assessment.
Various proposals on expanding the information to be submitted by each ship
beyond the minimum described above have also been put forward on numerous
occasions. The outcome of the seventy-ninth session of the MSC14 was that the
purpose and scope of LRIT was discussed based on a document submitted by
152 Jan Georg Christophersen
Australia on the subject.15 The Australian view is that the LRIT system established
for security purposes could also be used for other ship-tracking systems sponsored
by the IMO, such as rescue purposes, ship-reporting systems for navigational
safety and pollution and potentially vessel traffic services and so on.16 The
Maritime Environment Protection Committee’s (MEPC) fifty-third session agenda
item 11 also presents viewpoints on the use of LRIT for environment protection.17
It seems that the work in the IMO has recently been focused on ‘filling up the
gap’ in the rules. A lingering question of particular importance has been whether
LRIT can be brought to also include small ships under 500 gross tonnes, fishing
vessels and small boats. One serious obstacle is that the fishing fleet is the respon-
sibility of The Food and Agriculture Organization of the United Nations, not an
IMO responsibility. Another one is the conflict between maritime industry interest
to preserve flags of convenience and the restrictions the fishing industry wish for.
In addition to ID, position and time, digital LRIT data will be able to provide
an important source of real-time information, numerical weather prediction, as
well as climate monitoring and research. This will allow major improvements in
the forecasting of severe weather in a very timely manner. The ship’s course and
the estimated time of arrival (ETA), too, are of obvious interest because they may
show deviations from its route.
Another fundamental question is the functional requirements for LRIT. The
issue of confidentiality of the information is an important question that must find
its solution. The information controlled could be both security-related and com-
mercially sensitive. Ownership of the information and responsibility for its
protection are issues for discussion, and are very sensitive areas for enforcement
procedures. A solution must be found as to whether there should be a data centre
providing information or whether the centre set up should act only as a means to
link contracting governments with tracking services. If the coordinating body
were not collecting the data, it would be depending upon others to provide the
information. In that case, one should be aware that several flag states do not have
the capability to provide LRIT data. An international body could have an over-
sight or operational control role, rather than actually operate the centre.
The ninth session of COMSAR was held in February 2005, and continues the
development of the draft of the proposed new regulation of SOLAS chapter (XI-2)
on LRIT. Despite the proposed preliminary draft presented, there are still questions
to be solved with regard to special measures to enhance maritime security.
Discussion will continue on the basis that the only information required from a
security point of view is the identity of the ship, its location and the date and time
of the transmission. It is agreed that any system developed should be capable of
preventing the transmission of false information. That it should be capable of fil-
tering out named coastal states when requested by the flag state, and that it should
be capable of being switched off on board when the flag state feels it necessary. It
is obvious, though, that a possibility to switch off the system will make LRIT less
interesting as a security system.
Nevertheless, there are ethical questions to be solved. Among others, there must
be a solution to the storage capacity for data, and for how long the information
Satellite-based tracking of ships as global crime control 153
shall be stored. One should bear in mind that today it is cheaper to store than to
delete data.
The eighty-first session of MSC held in London on 18 May 2006 proposed
several amendments to the regulations under SOLAS, which if finally adopted
will represent ‘breakthroughs’ both with respect to the size and the distance from
the coastal states concerned of ships included under LRIT.18 According to the
agreed amendments, the obligation to transmit LRIT information shall apply to
passenger and cargo ships, including high-speed crafts, down to 300 gross ton-
nages and to mobile offshore drilling units. In addition, any contracting
government shall be entitled to receive LRIT information from ships flying the
flag of other contracting governments when the ships are navigating closer than
1,000 nautical miles off its coast.
The amendments, however, do leave an opening for ships in ‘exceptional circum-
stances’ out of consideration for their safety or security, being excepted from the
LRIT reporting required. By 1 July 2007, the amendments will be deemed having
been accepted as part of the regulations under SOLAS, absent any objections from
a sufficient number of contracting governments. The new SOLAS regulations
would then enter into force on 1 January 2008, and with respect to the transmission
of LRIT information by ships, start becoming effective as from 31 December 2008.
Moreover, governments shall bear all costs associated with any long-range
identification and tracking information that they request and receive. Authorities
shall not impose any charges on ships in relation to the long-range identification
and tracking information they may seek to receive.

Potential use of long-range identification and tracking


With regard to the potential use of LRIT for pollution prevention purposes, four
types of applications could be mentioned. First, when pollution of the sea has
been detected, LRIT can be used to establish which ship – or ships – has been
responsible for the pollution. Second, when entering an area in which mandatory
reporting of entry by each ship is required, LRIT may be used for automatic
reporting. Third, LRIT can also be used to establish whether a given ship has been
sailing a route where ballast water exchange should not have been performed.
And lastly, LRIT can be used to provide statistical data of emission of gases from
international shipping.
It would be beneficial for safety, security, pollution prevention and traffic con-
trol to also include information on the next port of call and the ETA. Such
information would enable costal states to respond as early as possible regarding
ships suspected of being a potential threat of any kind. The right of a state to
receive LRIT information from ships will change as soon as this state becomes a
port state. It should also be taken into account that LRIT could be used in traffic
control in narrow straits such as the English Channel, as well as the Gibraltar and
Malacca Straits.
Initiatives have been undertaken from various parties to enhance maritime secu-
rity through adopting international standards as a basis for national standards. One
154 Jan Georg Christophersen
solution has been launched by the International Organization for Standardization
(ISO), offering a combined solution of tracking of ships and other areas of control,
such as transparency of cargo movement throughout the entire supply chain and
control of seafarers’ ID documents.
Discussions in the IMO on the use of LRIT for a wider range of purposes have
been going on for a while. When LRIT information is to be transmitted, the
responsibility must naturally, from a state security perspective, be with the flag
state and not be the decision of a company or a ship.
To use LRIT as a tool for significantly enhancing safety and security in the
shipping industry is important. There is a need for improving statistics on pollu-
tion of sea and air from ships, shipwreck, navigation failure, ship ownership,
seafarers’ ID, cargo tracking and so on.

Maritime terrorism – how real is the threat?


Terrorist incidents on the high seas or maritime interests are neither a new nor
prevalent activity. For more than two decades, there have been warnings from secu-
rity experts and policy analysts against attacks on maritime targets. Until 11
September 2001, attention has been occasional and cursory.19 Vessels have been ter-
rorist targets and this started with the capture of the cruise liner Santa Maria in La
Guaria, Venezuela on 20 January 1961. The terrorist hijacking of the passenger liner
Achille Lauro on 17 October 1985 off the coast of Egypt threw new light on the pos-
sibility of maritime terrorism. These infamous incidents led the IMO to frame a
document of international law regarding such incidents. In 1988, in Rome, the
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (SUA Convention) was adopted, entering into force in March 1992.
Traditionally, terrorists have mainly used ships for transporting arms, equip-
ment and personnel. Clandestine movement of terrorist goods is probably still the
most pressing problem. Furthermore, there have been very few attacks against
ships and none against passenger facilities in ports, as often feared.
Protecting maritime commerce from attack or exploitation by terrorists is crit-
ical to the future security of all nations. Despite few attacks on maritime targets so
far, since September 11 maritime terrorism has become a focus, if not a fascina-
tion, of numerous news reports and policy research agendas. The USS Cole was
attacked in Aden, Yemen in October 2000, the French tanker Limburg two years
later off the coast of Yemen, and Katyusha rockets were fired at the USS Ashland
in Aqaba, Jordan, 19 August 2005. In February 2004, approximately 200 passen-
gers and crew were killed in a fire aboard the Philippine Superferry 14 caused by
the explosion of an incendiary bomb in a television set.20 Terrorists have also
attempted to infiltrate the global container supply chain. In October 2001, a
potential terrorist was discovered in a container in the Italian port Gioia Tauro.21
The bombing of oil terminals in Basra in April 2004 is an example indicating that
ships and port facilities can be vulnerable. Security agencies and the international
community are developing mechanisms to prevent and respond to this threat.
However, if the maritime realm is so attractive to terrorism, then why have we not
Satellite-based tracking of ships as global crime control 155
seen more attacks occurring? One possible answer is that land targets are easier to
penetrate, whereas attacks at sea are more difficult to carry out. In addition, such
attacks require technical knowledge, thus limiting the operational latitude.
A combination of risk assessment and threat perception is driving the emerging
security requirements. The ISPS Code was forced through in the IMO by political
pressure. Normally growth in crime control has its background in an increased
crime rate or reactions to new threats. There is no indication during the last few
years that there has been growth in the total number of crimes threatening the mar-
itime industry in a way that justifies the introduction of an entirely new regulation
regime like the ISPS Code.22 According to the International Maritime Bureau
(IMB), the worldwide rate of armed robbery on shipping is decreasing, from 445
cases in 2003 to 325 in 2004.23 Therefore, it seems that the introduction of the ISPS
Code and the work of the IMO on LRIT regulations stem more from ‘social panic’
than from real statistical crime figures and a need for protection.24 On the other
hand, data show that there is a worrisome possibility that seaborne attacks could
cripple global trade and have a huge impact on developed economies.
The actual regulation of the shipping industry seems so far to be more of a
management activity, influenced by what is politically convenient, rather than real
crime control.25 In addition, it should not be overlooked that for companies pro-
viding possible measures of protection there are gains to be made from an
increased emphasis on security at sea. However, there is no doubt that piracy and
armed robbery are very real threats against ships, particularly in areas with much
seaborne traffic and a lot of poverty.26 In areas with guerrilla warfare, for
instance, we find a combined form of piracy and armed robbery.27
In the aftermath of the attack of 11 September 2001, governments around the
world began to assess their vulnerability as maritime targets. World trade is depen-
dent mainly on maritime transport. The United Nations Conference on Trade and
Development (UNCTAD) estimated that 5.8 billion tonnes of goods were trans-
ported by sea in 2001, more than 80 per cent of the global trade volume. Over
46,000 SOLAS vessels were servicing nearly 4,000 ports throughout the world.
According to UNCTAD reports, world seaborne trade expanded 4.3 per cent in
2004 to 6.76 billion metric tonnes transported and expected to grow at a similar
rate in 2005 and reach 7 billion tonnes.28 Forty thousand freight-forwarders are
engaged in international trade, while 1,227,000 officers and seamen sail on the
vessels in international merchant fleets. Four hundred thousand seafarers are from
four countries: China, India, Indonesia and the Philippines. Approximately 12–15
million containers are used in world trade, and 232 million container movements
are made through ports worldwide each year.29 Global commerce must be made
secure, not necessarily because of the terrorist or piracy threat, but because it is a
risk management problem. Take for instance the environmental challenge caused
by the shipping industry.
Following the September 11 attack, fears were expressed that ships could be
used to transport noxious devices or substances, or that the ships could be used
as floating bombs. Terrorists could attempt to extort protection money from ship-
pers by threatening to disrupt their operations. Competitors could try to ruin rival
156 Jan Georg Christophersen
businesses by attacking the latter’s maritime assets, intimidate their employees
and clients, and raise their insurance rates. Perhaps even more threatening has
been the possibility of a terrorist attack against underwater installations such as
oil and gas pipelines or critical telecommunications installations. Since there is a
growing fear of the proliferation of weapons of mass destruction and related
materials worldwide, as well as the danger that these items could fall into the
hands of ill-minded people, there is a need to impede and stop the trafficking of
such materials. From an economic point of view, the disruption of the economy
of the adversary has always been an important strategic objective. In view of this,
the fact that there has until now been no major act of strategic maritime attack
should not lead to complacency.
All too often security analysts have warned of a doomsday scenario in which
terrorists use a ship to cause death and destruction, paralysing shipping and ports
around the world, and causing great damage. Just as the terrorist threat is global,
the security response needs to be global. Security is a matter of prioritizing and
balancing risks. Therefore securing shipping requires improving the security of
the entire transport chain. Strengthening the ISPS Code could improve security in
the global shipping industry. It would, however, require all countries to make port
and ship security a shared responsibility among states and shipping authorities.
Regrettably, many countries do not comply with the code.

Enforcement
Even where aiming specifically at the prevention of maritime crime, conventions
like the ISPS Code and UNCLOS have not been drafted with the aim of requiring
criminal sanctions against non-compliance.
Some countries want to search foreign ships far outside their territorial waters
to stop a possible terrorist attack on the state coming from the sea. If the threat is
significant enough, the authorities will board that ship as far from their coast as
they can. The policy of the US in connection with LRIT negotiation, for example,
was to ‘push back’ its sea borders for searches as much as possible – perhaps by
as much as 2,000 nautical miles. From an intelligence perspective, there is ample
justification to worry about a terrorist threat. Governments require permission
from the flag state to board a ship in international waters, where the ship is seen
as sovereign territory, or risk a diplomatic row. States would have to agree on a
new legal framework to allow countries to inspect or board ships outside their
own territorial waters. Exact parameters would have to be worked out with part-
ners at a global level and within the framework of international laws of the sea.
There are many obstacles to the enforcement of measures regarding crime
against the shipping industry and in the shipping industry itself. Therefore, new
cooperative systems for ship reporting are now being implemented to meet
emerging requirements for language, identification and tracking. Multinationals,
shipping companies and states insist on the need for ‘end-to-end visibility’ along
the supply chain, given the need for heightened security. One may ask why we try
to protect the shipping industry through rigorous regulations when we know that
Satellite-based tracking of ships as global crime control 157
prosecution of criminal cases in the field of security is rare. In addition, there has
been little research on the preventive effects of this type of regulation. On the
other hand, this may be the right time to adopt an offensive strategy with regard to
the part of the shipping industry flying the flag of convenience.
Enhanced physical security of port facilities, increased patrols of waterways,
port and coastal facilities, container security and protection against explosives,
and the creation of databases to track cargo, ships and seamen are all effective and
important measures in mitigating the threat. Therefore, the ISPS Code is an essen-
tial international security initiative, with 108 member states. In addition, most
coastal states have signed the SUA Convention. The convention makes it possible
for navy forces to pursue terrorists, pirates and maritime criminals into foreign
territorial waters in order to obtain extradition and prosecute them.
It may also be high time to consider payments, cash flows and other funding
issues. With regard to the costs, it is possible to anticipate that contracting gov-
ernments would have to pay for the services provided. Ships would be
responsible for paying for the appropriate hardware needed to provide those ser-
vices. The question of whether all requests should go through an international
data centre must be discussed.
The issue of reporting frequency and the need for a polling system must be
decided. A simple system with regular reports, automatically generated for secu-
rity purposes, should be preferred. These are all important factors in the
enforcement of global security of seaborne transport.
However, the tracking of ships is not enough to protect vessels at the interna-
tional level. Tracking–data must be made applicable. Flag states need to be
prepared to take on added responsibilities in counter-piracy and counter-terrorism
measures with regard to enforcement. Navy escorts to accompany vessels sailing
in troublesome parts of the world could be one alternative. However, such mea-
sures would undoubtedly meet problems regarding sovereign jurisdiction and
thereby problems connected with enforcement. A more realistic and politically
feasible option would be for flag states to provide assistance in the form of mar-
itime funds, training and equipment.
Since the 9/11 attacks the United Nations through the IMO has played a more
active role in addressing especially terrorism, but also piracy, with respect to
updating and improving the current international legal framework. Nevertheless,
maritime transport is vulnerable to other threats, such as internal threats. Port
employers have knowledge of ship operations and port facilities, access to trans-
portation, ships, and port assets. This situation makes possible a range of terrorist
tactics from placing illicit goods on board the ship to deliberate sabotage.
Terrorists may also infiltrate ships as individual mariners. The threat of terror-
ist groups infiltrating the international merchant marines cannot be ignored.
Environmental terrorism may also be a problem resulting from growing maritime
activity. Examples are deliberate grounding and collision of ships, seaborne
spread of infections diseases, spread of contaminated ballast water, and other
environmental problems. Here too questions about enforcement with regard to
jurisdiction have to be solved.
158 Jan Georg Christophersen
The shipowners may be exposed to liability through conventions or as a conse-
quence of acts or omission from a third party where the owner has the burden of
proof. Crime at sea is about an inside and an outside risk impossible to prevent
totally. Therefore, crime is not only a security threat to the party first hit, but also
a threat to the environment, international economic interests and global trade.
The shipping industry often asks the question: is it fair that the shipowners
should bear the entire security burden, which in the end is of an economic char-
acter? The whole question of financial protection ends up in the gaps in
insurance cover. Maximum support from the insurance industry is not sufficient,
and state guarantees are not available. The insurance industries have been sug-
gesting a combined solution of state/private cooperation as an efficient
preventive element, but without result. Therefore, the responsibility stays with
the shipowners, and this of course has to be taken into consideration with regard
to enforcement.
Data show a mixed response from the shipping industry to space-based track-
ing; most respondents argue that it is too soon to judge the effects because LRIT
has not yet been launched. There is some consensus that the ISPS Code has
heightened the security awareness. Better access control will deter unlawful acts,
and port security measures will protect ships. The opinion generally held in the
industry is that over time security systems will develop to become an integral part
of routine operations for ships, ports, companies and authorities. Nevertheless, so
far there have been no changes in enforcement practice.

Conclusion
There is still a long way to go before security measures in the shipping industry
match security in other sectors. Only time will tell if current regulation and the
planned control systems will be effective. The challenges to maritime security are
complex. Measures ultimately depend on political will and active input. The ship-
ping industry must be prepared to adapt to the new demands and challenges posed
by the security threat. Otherwise, piracy, as well as the threat of terrorism, in some
waters are likely to continue unabatedly, adding yet another complicating factor to
an already difficult security situation.
There can be little doubt that attention to maritime criminal activity has
emerged as a significant issue worldwide. Protecting international shipping from
crime is difficult. Therefore, as the world faces the current maritime security chal-
lenges, it needs a new approach and a new set of capabilities. Some states give
new impetus to the development of a maritime security regime.30 Global security
is primarily about integration, bringing states together with international stan-
dards and the best available technology. If the international societies continue to
do this, it might make the shipping industry safer.
Success will depend on the shipping industry’s capability to adapt to chal-
lenges. A maritime security regime requires sufficient regulations and a strong
international control system. The challenge requires a strategy and a strategic
response, providing adequate resources to the control institutions. As the work
Satellite-based tracking of ships as global crime control 159
against crime at sea moves forward, great challenges lie ahead for the interna-
tional community. The progress attained thus far shows that they can be met.

Notes
1 The code has two parts, one mandatory (Part A) and one recommendatory (Part B).
Part A requires ships to have security assessments and plans, security officers and
certain equipment installed on board the ship. It also requires permanent ship identity
markings and a Continuous Synopsis Record recording ship ownership. The ships
will have to carry an International Ship Security Certificate (ISSC) indicating
compliance with the requirements of SOLAS and the ISPS Code. This certificate will
be subject to port state inspection. Similarly, ports are required to have assessments,
security plans and security officers, and the ports shall monitor and control access.
2 A Study on Maritime Security Measures for Non-SOLAS Vessels, The Japan
International Transport Institute (JITI), Tokyo, 10 May 2005. Available online at:
<http://www.japantransport.com/conferences/2005/05/seminar_report.pdf>
(accessed 17 June 2005).
3 J. J. Carafano, I. Varkonyi and R. Weitz, ‘The future of maritime security: competitive
issues’, in J. J. Carafano and A. Kochems (eds) Making the Sea Safer: A National
Agenda for Maritime Security and Counterterrorism, Heritage Special Report,
SR 03, 17 February 2005, pp. 3–19.
4 The concept of ‘regime’ can be defined in different ways. Most writers agree that a
regime refers to norms, rules and procedures that regulate a particular area.
5 See regulation 19 of SOLAS.
6 Short distance radio communication.
7 T. Eriksen, et al., Maritime Traffic Monitoring Using a Space-Based AIS Receiver,
Kjeller: Norwegian Defence Research Establishment (FFI), 2004.
8 On terrorism, see T. Björgo, Root Causes of Terrorism, Myths, Reality and Ways
Forward, London: Routledge, 2005; and B. Hoffman, Inside terrorism, London and
New York: Gallancz and Columbia University Press, 1998. There is no international
consensus on the definition of terrorism. However, the definition proposed by
Hoffman is arguably one of the best. According to Hoffman, terrorism is (p. 43): ‘The
deliberate creation and exploration of fear through violence or the threat of violence
in the pursuit of political change.’
9 On piracy, see C. Z. Raymond in this volume; P. Chalk, ‘Contemporary Maritime
Piracy in Southeast Asia’, Studies in Conflict & Terrorism, vol. 21, 1998, 87–112;
D. R. Dillon, Piracy in Asia: A Growing Barrier to Maritime Trade, Heritage
Foundation Report, no. 1379, 22 June 2000; and M. Gill, ‘Security at sea: fraud,
piracy and the failure of police cooperation internationally’, International Relations,
vol. 13, no. 3, 1996.
10 A Norwegian-registered vessel, KCL Banner sounded a false ship security alert
(SSAS) message in the Mediterranean off the Greek coast on 25 April 2005, and
was immediately escorted to the port of Pilos by two coast guard vessels. No pirates
were found.
11 United Nations Convention on the Law of the Sea (UNCLOS).
12 Convention on International Maritime Satellite Organization, set up by the IMO in
1976, is the intergovernmental organization responsible for manning the world’s
maritime-related satellite communication network. The convention defines the
purpose of the international maritime satellite system (Inmarsat) as being to improve
maritime communications, thereby assisting in improving distress and safety of life at
sea communications, the efficiency and management of ships, maritime public
correspondence service, and radio determination capabilities. Inmarsat’s obligation to
160 Jan Georg Christophersen
provide distress and safety services via satellite was enshrined within the 1988
amendments to SOLAS which introduced the Global Maritime Distress and Safety
System (GMDSS). Ships sailing in specified sea areas are required to carry Inmarsat
communication equipment for distress and safety calls and to receive navigational
warnings. At present, the Inmarsat system is the only mobile-satellite system
recognized by SOLAS contracting governments for use in the GMDSS. To ensure that
Inmarsat continues to meet its service obligations, including obligations relating to
the GMDSS, International Mobile Satellite Organization (IMSO) – an
intergovernmental body replaces Inmarsat as observer at the IMO.
13 See (E) COMSAR 9/INF.3 29 October 2004, Sub-Committee on Radio communicat
ions and Search and Rescue 9th Session, agenda item 12, ‘Measures to enhance
maritime security: satellite-based AIS long-range identification and tracking (LRIT).’
14 See MSC 79 (MEPC 53/11/1).
15 See MSC 79/5/12.
16 According to the report from that meeting, MSC decided as follows (MSC 79/23,
paragraph 5.68): ‘The Committee supported the Australia proposal and agreed that
the purpose and scope of LRIT should be extended to include safety and
environmental protection applications, subject to resolution of the technical issues by
the COMSAR Sub-Committee...’.
17 MEPC 53/11/4, 27 May 2005.
18 MSC 81/WP.5/Add.1 18 May 2006.
19 B.A. H. Parritt (ed.), Violence at Sea: A Review of Terrorism, Acts of War and Piracy,
and Countermeasures to Prevent Terrorism, Paris: ICC Publishing S.A., 1986; and H.
W. Stevens, ‘Maritime security in the United States: latent threats and latent
vulnerabilities’, Terrorism & Political Violence, vol. 2, no. 4, 1990, 554–74.
20 R. J. Brown, ‘A sharp eye for fighting terrorism’, Professional Mariner, no. 90,
August/September 2005.
21 United Nations Conference on Trade and Development (UNCTAD) Secretariat,
Container Security Major Initiatives and Related International Developments
(UNCTAD ISO/TC N997: 9 April 2004), p. 7.
22 E. L. Miles, ‘Implementation of international regimes: a typology’, in D. Vidas and
W. Östreng (eds), Order for the Oceans at the Turn of the Century, The Hague: Kluwer
Law International, 1999, p. 327.
23 International Maritime Bureau, Piracy and Armed Robbery against Ships – Annual
Report: 1 January – 31 December 2004, London: International Chamber of
Commerce (ICC), 2005, pp. 4–11.
24 D. Garland, The Culture of Control: – Crime and Social Order in Contemporary
Society, Chicago: The University of Chicago Press, 2001.
25 M. Clarke, A Regulation: The Social Control of Business between Law and Politics,
London: MacMillan, 2000; and P. Larsson, ‘Development in the control of economic
crime in Norway’, Journal of Financial Crime, vol. 13, no. 1, 2006.
26 N. Renwik and J. Abbott, ‘Piratical Violence and Maritime Security in Southeast
Asia’, Security Dialogue, vol. 30, no. 2, 1999, 183–96; J. Vagg, ‘Rough Seas?
Contemporary Piracy in Southeast Asia’, British Journal of Criminology, vol. 35, no.
1, Winter 1995, p. 64; International Maritime Bureau, Piracy and Robbery Against
Ships: A Special Report, London: International Chamber of Commerce (ICC), 1997;
and S. Menefee, ‘Piracy, Terrorism, and the Insurgent Passenger: A Historical and
Legal Perspective’, in N. Ronzitti (ed.) Maritime Terrorism and International Law,
Dordrech: Martinus Nijhoff, 1990, pp. 56–61.
27 Hoffman, Inside Terrorism; and Brigadier B. A. H. Parritt, Security at Sea: Terrorism,
Piracy, and Drugs – A Practical Guide, London: The Nautical Institute, 1991, pp.
13–17.
28 Review of Maritime Transport 2005, New York and Geneva: United Nations
Conference on Trade and Development, 2005, p.x. See also UNCTAD press release
Satellite-based tracking of ships as global crime control 161
7 November 2005. <http://www.unctad. org/Templates/ web flyer .asp?docid=
6501&intItemID=3369&lang=1> (accessed 30 Oct. 2006).
29 UNCTAD, 6–1: ‘Secure seas, open ports: keeping our waters safe, secure, and open
for business’, U.S. GPO, 21 June 2004, 1, Washington, US Department of Homeland
Security; and A. Kinery, ‘Difficult vigil’, Homeland Defense Journal, vol.1, no. 8,
November 2003, 23.
30 R. F. Laird, M. Gaspar and D. Proctor, ‘The challenges to developing a effective
maritime security architecture’, in Carafano and Kochems (eds), Making the Sea
Safer, pp. 20–27.
12 Flags of convenience as a
complicating factor in combating
crime at sea
Gunnar Stølsvik

This chapter sets out to examine the problem of ships registered in a state when
there is little or no connection (such as ownership, nationality of the crew, routes
followed, etc.) between the ship and the state. Such nationality arrangements are
often described as ‘flags of convenience’ and are being promoted by those flag
states that can offer this particular kind of registration services. The problems
related to the use of flags of convenience have been widely discussed and in
regard to different aspects. In this chapter we will look at the problem of the
changing of nationality for the purpose of hiding the ship’s – and its owners’ –
true identity in order to conduct criminal activity. Such arrangements could cause
problems when coastal states try to combat crime at sea. In an independent report
published in 2005, funded by WWF International, the Australian government and
the International Transport Workers Federation, the following was stated with
respect to unregulated fishing on the high seas by fishing vessels:

The widespread and pervasive failure of so many States to uphold their fun-
damental duties as flag States arguably makes a mockery of the notion of flag
State sovereignty. It risks undermining the integrity of the United Nations
Convention on the Law of the Sea and numerous related agreements and
upsetting the balance between the interests of coastal States and high seas
fishing States.1

The International Transport Worker’s Federation first raised the problem of regis-
tration under flags of convenience shortly after the Second World War as a
problem affecting the economic and social security of the seafarers. This has, tra-
ditionally, been the main focus, mainly through the International Labour
Organization (ILO) and the International Maritime Organization (IMO). In a
security perspective the challenges are quite different as they affect the coastal
states where criminal activity is conducted.
The fact that thousands of ships are registered in states with lax maritime reg-
ulations that promote or permit anonymity as a business advantage has given rise
to some concern. This has been reflected in several international forums and quite
recently in relation to the non-proliferation of weapons of mass destruction. The
fear is that terrorists, pirates or other criminal groups would register a ship under
Flags of convenience – combating crime at sea 163
a flag of convenience and thus be able to hide their true nationality and identity
when conducting the criminal activity.
Some of the consequent problems, which are addressed in this chapter, are the
lack of transparency, the failure of flag states to respond to requests of coastal
states and the lack of legal rights for coastal states to take action when the flag
state is not cooperating.

The flags of convenience as part of the global offshore economy


The global economy is greatly influenced by the so-called offshore services pro-
vided by numerous states and territories around the world. Some of the services
offered by states and semi-independent territories include passports, banking
licenses, identity cards, registration of cars, registration of companies, bank ser-
vices, Internet domain registration and, of course, ship registration. Bank
accounts are opened in full knowledge of secrecy as to who the owner of the
account is, and passports are offered to persons that already have a genuine citi-
zenship in another state. The reality is that numerous territories and states offer
typical attributes of sovereignty as a commodity which may be used to conceal the
true identity of the purchaser. Because of this lack of transparency countries that
offer such products have attracted unwanted attention in relation to almost every
kind of illegitimate activity.
As the offshore services provided by the actual state do not correspond with
the place of registration and where the economic activity is conducted, the use of
offshore services gives a sense of virtuality. It simply does not make sense for
the Cayman Islands in the Caribbean to be the fifth largest financial centre in the
world or that Luxembourg has more banks than Switzerland. There is no obvious
reason why war-torn Liberia should have become one of the biggest shipping
nations in the world or why the citizens of the Dutch Antilles spend an average of
three months per year per person on international phone calls. During recent
years, and especially before 11 September 2001, it was quite easy to shop the
offshore markets. As an example, you could become a bearer of a passport (ordi-
nary or diplomatic) from numerous tiny territories for a yearly fee. In 2002 it was
discovered that the accused Washington sniper John Allen Williams
Muhammad had bought an Antigua and Barbuda passport and successfully
entered the United States using his new passport. As a result of this, Antigua
and Barbuda encountered massive criticism and pressure from Canada and the
United States and decided to close the practice of allowing non-nationals to pur-
chase passports.
In an address to the nation, Prime Minister Baldwin Spencer of Antigua and
Barbuda finally declared: ‘The sale of this country’s passport will not continue.
Antigua & Barbuda passports are no longer for sale.’2
Another offshore service that has gained increasing popularity is to lease out
country codes and phone numbers to specialized sex companies. Online sex does
not usually originate in these countries but is merely rerouted through switching
mechanisms located anywhere in the world. The origin of the phone calls remains
164 Gunnar Stølsvik
unknown, but because of the settlement system they are logged as if emanating
from these countries and the small countries share in the revenues from these
incoming calls. These procedures can produce a significant amount of revenues
for a small country. Niue is reputed to derive approximately 20 per cent of gov-
ernment revenues from such deals.3 Tuvalu, which operates an infamous ship
registry as well, also derives revenues from such phone deals.
Most states that engage in various types of offshore services also offer
anonymity, cheap labour and liberal legislation, which in the end might be
regarded as detrimental to the state in which the activity is in fact being con-
ducted. The dilemma we are facing is the state’s rights to legislate in the manner
they wish as opposed to the needs of other states. An example is North Korea,
which is being accused of supporting drug trafficking for the benefit of the North
Korean State. In such a case, if the accusations are true, North Korea is exporting
crime on a worldwide scale and surely other states must have the right to take
action against that. By offering offshore services, State A creates a legal room in
which foreigners are allowed to conduct criminal activities, which in their home
country are illegal. The offshore ownership structures are most often designed in
such a way that they cover the customers and not their home state’s needs. In this
lies a conflict between State A and State B where A, in some cases, implicitly and
often involuntarily in fact is being an abettor of criminal activity in State B. The
criminals are conducting their activity in State B but receive support in the form
of legal or structural protection from State A that complicates the investigation
and sometimes lays serious limitations on State B’s law enforcement.
The trade in nationality of ships is one of the oldest and most widely used off-
shore services in the world today. Originally this was created by the United States,
which helped Liberia to open a register for foreign ships in order to fill the then
US need to have ships under a neutral flag. The intention then was the same as it
is now for all offshore services, to register an economic (or other) activity in
another state instead of on the territory where the activity de facto is being con-
ducted. But what motivates today’s ship owners to register their vessels with the
shipping registers of other countries rather than with those in their own countries?
Clearly, such moves are a response to growing international competition that
often has a high impact on their financial interests.
In 1958 the Organization for European Economic Co-operation (OEEC) sum-
marized the reason for shipowners to change the nationality of American ships the
following way:

... [the] virtual freedom from taxation of ships sailing under the flags of con-
venience enables many of the shipowners concerned so to arrange their
business enterprises that their profits are not liable to taxation in any country.
They are thus able to devote to the expansion and development of their fleets
that proportion of their profits which their competitors in other countries
have to set aside to meet tax requirements. The real effect of such registration
is to bring the high operating costs incurred by ships registered in the U.S.
down to a level nearer that of the general run in the countries of their foreign
Flags of convenience – combating crime at sea 165
competitors. In a sense, therefore it is the removal of a handicap rather than
the gaining of an advantage which flows from these particular transfers.4

In a multinational industry with a great deal of competition the reasoning from


1958 is still relevant. Taking advantage of the opportunity offered by flags of con-
venience may still, in many cases, be the only way for ship owners to avoid great
financial expenditures.

The flags of convenience in a security perspective


It has been widely recognized by all countries under the threat of terrorism that
ships are an obvious, and potentially devastating, source of terrorist acts. It seems
natural in these circumstances that everything should be done to minimize, if not
absolutely eliminate, those risks. By their very nature, flags of convenience are
inherently more vulnerable to possible misuse by terrorists, especially those regis-
ters that promote the fact that they are committed to protecting the identity of
beneficial owners.
In a report by the Organization for Economic Co-operation and Development
(OECD) on ownership and control of ships from a security perspective it was stated:

However, not only does perfect transparency not exist, but in fact anonymity
seems to be the rule rather than the exception, and not only is it permitted, but
in many cases positively encouraged. This enables terrorists and would be
terrorists to remain intimately involved in the operation of their vessels,
while remaining totally hidden, through the use of relatively simple mecha-
nisms that are readily available and legally tolerated in almost all
jurisdictions.5

During the investigation of the well-known Scandinavian Star disaster, where 159
people died in 1990, there was severe difficulty in determining who the actual
owner of the ship was. The ownership of the ship was so blurry that this is not yet
determined. It is probably not right to blame just the flag state, which in this case
was Bahamas, since the lack of transparency in the shipping industry is also the
responsibility of other jurisdictions. By using corporate mechanisms, such as off-
shore company registration, in conjunction with a flag of convenience, the result
would be total anonymity.
In the OECD report on ownership and control of ships it was stated:

While some ship registers actively facilitate and promote anonymity for reluc-
tant owners, the principal mechanisms are not the registers themselves, but the
corporate mechanisms that are available to owners to cloak their identity.6

The most important feature that facilitates anonymity of individuals from the
perspective of the ship registering process is the ability of corporations to be reg-
istered as owners of vessels. An effective mechanism, which is the most common
166 Gunnar Stølsvik
can provide anonymity for beneficial owners, includes bearer shares, nominee
shareholders, nominee directors, the use of intermediaries to act on owners’
behalf and on the failure of states to provide effective reporting requirements.
From this perspective one could say that the blame is not entirely on the flag
state but also on the jurisdictions that offer these corporate mechanisms and on
those individuals that misuse the possibilities available to them.
In Southeast Asia, piracy has been significantly more violent in the last three
years and it seems possible, as discussed in previous chapters, that there might
emerge a nexus between piracy and terrorist groups. The use of flags of conve-
nience in such operations has its benefits for the criminal group. As mentioned in
C. Z. Raymond’s chapter, some flag states offer a temporary six-month fast-track
registration. This allows a hijacker of a ship to take advantage of the secrecy that
follows such registration, as demonstrated in the case of the Singaporean-owned
ship, the Petro Ranger, which in 1998 was hijacked and reflagged to Honduras.
In December 2002 the ship Sosun registered in Cambodia, was found to be car-
rying 15 scud missiles, conventional warheads and rocket propellant under a cargo
of cement after US and Spanish naval vessels stopped it in the Arabian Sea. This
ship was owned by North Korea but had been registered under the flag of
Cambodia. The Cambodia Shipping Corporation registered foreign vessels – many
of them North Korean – for Cambodia, until 2002, when the French Navy seized
the ship Winner, a Cambodia flag cargo ship, for cocaine smuggling. The seizure
prompted the Cambodian government to cancel its contract with the company that
operated the Cambodian ship register from Singapore. Outsourcing of the opera-
tion of ship registers is a trend that several countries have taken advantage of.
A flag that has a particularly bad track record is the Pacific Ocean Kingdom of
Tonga that developed a ship register that was outsourced to a company in Greece.
Its register officially closed its operation in April 2003. In spite of this, several
Tonga-registered ships visit harbours all over the world. The background for the
official closing of the registry was a couple of serious incidences involving two
Iraqi-owned ships: First, Karine A was boarded by Israeli commandos in the Red
Sea and was found to be carrying 50 tonnes of mainly Iranian weapons.7 Then,
soon after, Italian authorities arrested the captain and several crew members of
the ship Monica in March 2002 with 928, including 361 children, Iraqi Kurdish
immigrants on board. The immigrants were reported to have paid US$4,000 for
each adult immigrant and US$2,000 for each child.8
Sometimes the port states adopt a policy of stringent safety and customs
checks towards specific nationalities. In 2003, Japan, traditionally an important
trading partner of North Korea, adopted such a policy towards North Korean flag
vessels visiting Japanese ports. As a result of this enforcement, the number of port
calls by North Korean flag vessels to Japan in 2003 plummeted by 29 per cent.9
North Korean-owned ships have over the last years increasingly been registered
under various flags of convenience. In May 2003 Australian authorities captured a
Tuvalu-registered freighter attempting to smuggle heroin worth US$50 million
into Australia.10 The ship was owned and operated by North Korea. North Korea
has in the past allegedly resorted to the drug trade to inject cash into its failing
Flags of convenience – combating crime at sea 167
economy and fund its huge army and expensive weapons development pro-
grammes. Judging from the reports in media the official attitude of the Australian
government and public was that the attempt to smuggle heroin was conducted by
North Korea and not by Tuvalu. The ship was regarded as North Korean disguised
under the more ‘friendly’ flag of Tuvalu in order to reduce the risk of being caught
by Australian authorities.
Norway took the same approach as Australia to some Icelandic-owned ships
registered under flags of convenience. During 1994 a series of conflicts in the
fisheries protection zone of Svalbard occurred.11 Norwegian newspapers
described it as the ‘Norwegian–Icelandic fisheries war’. The reason was that the
ships that carried out illegal fishing in the zone were crewed with Icelandic fish-
ermen and had shipowners stationed on Iceland. However, even so it was wrong to
call it a ‘war’ between Norway and Iceland because all the ships involved were
carrying not the Icelandic flag, but the flags of Belize, the Dominican Republic
and Panama. So, in fact, if one should take the flag of the ship seriously the diplo-
matic tension, which definitely took place between Norway and Iceland, did not
reflect the strictly formal situation, as the ships were not flying the Icelandic flag.
But the newspapers and the government, too, only reacted to the reality that the
ships had no real connection with any of the flags.
Under the United Nations Convention on the Law of the Sea (UNCLOS), few
legal rights of intervention exist in the case of ships suspected of illicitly traffick-
ing in drugs, despite the obligation on states to cooperate in suppressing that trade
(UNCLOS Article 108). In 1988 the (UN) Vienna Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances was concluded; it entered
into force in 1990. Article 17 of the convention provides that states parties may
request each others help in the repression of illicit traffic. So, the coastal or port
state does not have a right (if not decided in advance through a separate agreement)
to board a ship under suspicion of trafficking drugs in international waters but
must request the flag state to do so. In the case of North Korea and Tuvalu this con-
vention does not provide much help for other states, as none of them are parties to
it. In relation to other forms of criminal activity such as terrorism there is no inter-
national right to board foreign ships without the prior consent of the flag state.
When the flag state is not party to treaties that enable the coastal and port state
to board ships under suspicion of a specific criminal activity, they must ask for
permission in advance. But who will answer? One of the main problems of the
flag state principle combined with the practice of flags of convenience is that
quite often there exists a very weak link between the flag state and the ship. In
many cases there exists virtually no genuine link between the state and ship. This
weakness becomes much clearer when a request to board a ship by the coastal or
port state is left unanswered by the flag state.

The nationality of ships from a legal perspective


States usually grant their nationality to vessels by means of registration and by
authorizing vessels to fly their flag. Originally, it seemed that states had complete
168 Gunnar Stølsvik
discretion in this matter.12 Accordingly, each state has to fix the conditions for the
grant of its nationality to ships, for the registration of ships in its territory, and for
the right to fly its flag. Article 91 of UNCLOS does also require a ‘genuine link’
between the ship and the state. This criterion was established through a well-known
judgement of the International Court of Justice between Guatemala and
Liechtenstein – the Nottebohm case.13
The introduction of the requirement of a ‘genuine link’ gives rise to the diffi-
culty of knowing what exactly constitutes such a link. Unfortunately this remains
unclear, since the International Law Commission felt that it was not practicable to
suggest specific criteria in the final draft of the Convention on the High Seas.
Equally, the consequences remain uncertain when there is no genuine link
between a vessel and the state whose nationality it purports to bear. It is, however,
quite obvious that the introduction of the ‘genuine link’ criterion was done with
the purpose to regulate the growth of flags of convenience, as states which offer
such services usually have a very weak connection with their ships.
Matters connected with ship registration are regulated by the 1986 United
Nations Convention on Conditions for Registration of Ships. This convention is,
however, not yet in force, as the required number of state signatories has not yet
been reached. On the question of a genuine link between flag state and ship, the
convention stipulates that the shipping company must be established in the flag
state or must have its principal place of business there.
In the Nottebohm case the International Court of Justice defined nationality
and the genuine link as ‘a legal bond having as its basis a social fact of attach-
ment, a genuine connection of existence, interests and sentiments, together with
the existence of reciprocal rights and duties’.14
Most work that has been done on the genuine link has focused on the problems
related to shipping companies, which reflag their ships in order to obtain eco-
nomical advantages. The problems of the meaning of the ‘genuine link’ and the
consequences that follow from the absence of such a link have been the subject of
a considerable literature and still remain unclear.
In this chapter the focus is on maritime security and we realize that a weak
connection between the state and the ship could have security implications. The
state’s right to board foreign ships on the high seas is quite limited and has been
defined in Article 110 of UNCLOS. A state has the right to visit a foreign ship
where there is reasonable ground for suspecting that it is engaged in piracy, slave
trade, unauthorized broadcasting or that the ship is without nationality.
When is a ship without nationality and when is it justifiable to disregard the
nationality that the ship purports to have? This question, so far, remains unsolved
but it is interesting to investigate the possibilities that might legally be present in
the ‘genuine link’ criterion from a security perspective. The question of fraud is
here relevant, first of all vis-à-vis the flag state but also between the ship and the
coastal or port state.
In the final submission by Guatemala presented at the hearing of the
Nottebohm case on 7 March 1955, Guatemala stated that Liechtenstein’s claim
was inadmissible ‘on the ground that Mr Nottebohm appears to have solicited
Flags of convenience – combating crime at sea 169
Liechtenstein nationality fraudulently, that is to say, with the sole object of acquir-
ing the status of neutral national before returning to Guatemala, and without any
genuine intention to establish a durable link, excluding German nationality,
between the Principality and himself’.
The core of Guatemala’s argument to not recognize the new citizenship of
Nottebohm was that they regarded his new nationality to have been fraudulently
obtained. Unfortunately the Court did not address explicitly the question of fraud,
relying mainly on the lack of a ‘genuine link’ between the state and Mr Nottebohm.
One of the reasons why the court in the Nottebohm case did not address the
question of fraud was perhaps because of the nature of the case itself. Nottebohm
changed his nationality mainly as a self-preservation measure and probably not
with the intention to harm Guatemala. The International Court might have
addressed this question if Nottebohm had acquired the nationality with the purpose
to conduct sabotage on behalf of Nazi Germany in Guatemala. By acquiring the
nationality of Liechtenstein he would have kept his original German nationality
secret when conducting hostile acts against Guatemala. This is the fear of several
states today as terrorist organizations or hostile states could hide their true nation-
ality by obtaining a new nationality under a flag of convenience. The UN Security
Council recognized this possibility during the embargo of Serbia in 1992.
In Article 10 of Security Council Resolution 787 (1992) it was stated:

... any vessel in which a majority or controlling interest is held by a person or


undertaking in or operating from the Federal Republic of Yugoslavia (Serbia
and Montenegro) shall be considered, for the purpose of implementation of
the relevant resolutions of the Security Council, a vessel of the Federal
Republic of Yugoslavia (Serbia and Montenegro) regardless of the flag under
which the vessel sails.

In a case from 1923 involving the United States and the United Kingdom, the ship
Henry L. Marshall sailed under British flag, trans-shipping alcoholic beverages
into US vessels on the high seas. In relation to that case, the British Under
Secretary of State, Mr McNeill, stated in Parliament:

The case referred to is an exception, since the vessel in question was found
on investigation to have obtained British registry by fraudulent means. It was
therefore intimated to the United States Government nearly a year ago that
His Majesty’s Government did not regard her as a British vessel.15

As mentioned earlier, few legal rights exist in the case of ships suspected of crime
on the high seas. There has, however, been approved by IMO a new protocol to the
Suppression of Unlawful Acts at Sea Convention (SUA Convention). Originally, it
was suggested by some states, the protocol should allow a state to seek the
approval of a flag state to board and search a suspect ship claiming the nationality
of the flag state. If no reply has been received from the flag state within a certain
period of time, then the requesting state would be permitted to carry on with the
170 Gunnar Stølsvik
boarding. In this provision one can see traces of the genuine link element. The
absence of a reply on the part of the flag state would have resulted in legal rights
for the requesting state. In the final discussions this provision was not approved
and the new protocol will not include a response time limitation. From the per-
spective of the coastal state’s control over flags of convenience this outcome will
not make much difference as the problem with flag states that does not respond to
requests from coastal states still remains unresolved.
One of the building blocks of the Law of the Sea is the flag state sovereignty
over its own ship – the so-called flag state principle. This principle often enters
into a conflict of interests with the needs of the coastal and port state. If the coast
guard holds the same nationality as the ship, then it has a right to visit it in accor-
dance with UNCLOS Article 94 on the high seas. Problems arise when a ship is
registered under a flag of convenience but the owners and the crew are of another
state. One can easily imagine a ship that is owned and operated from, as an exam-
ple, Singapore with a Singaporean crew but the ship being registered in another
state. In such a situation Singapore would not be allowed to exercise jurisdiction
on that ship since it is registered in a state such as, as an example, Mongolia. Then
it is Mongolia which has the right to exercise jurisdiction on the ship while the
ship operates on the high seas.
Another example was the embargo of Serbia by the UN Security Council
where the right of the flag state was outweighed by the security needs of the inter-
national community, which resulted in a provision which made it legal to
disregard the flag state and rather rely on the true nationality of the ship. When
advocating the controversial issue to disregard the flag state it must be clear that
this must be a last resort solution. When the reason for changing the ships nation-
ality is to conduct activities contrary to human rights, humanitarian law or UN
resolutions, then the fraudulent character is the dominant reason and it might be
possible to disregard the flag in such a situation. By doing so, it is obvious that
such action must balance the flag state principle and the rights of coastal states.
When considering such action the existence or the lack of a ‘genuine link’
between the flag state and the ship should be considered.

Do we need a new approach after September 11?


As we have seen in many areas, the international community regards trans-
parency as one of the fundamentals in combating crime. The state need for
transparency has been the main reason for the OECD’s involvement in relation to
so-called tax havens. The OECD has developed standards and exercises pressure
towards jurisdictions that do not follow international good governance in the
field of taxation. The ship registration business has operated unnoticed for many
years. In the aftermath of the terrorist attacks on the United States there has been
a growing awareness of the possible dangers of such registers that offer non-
transparency as a business advantage. The OECD wrote in their report on
ownership and control of ships that:
Flags of convenience – combating crime at sea 171
Flags should avoid registering vessels whose owners go to extensive lengths,
such as the use of complex corporate mechanisms, to hide their identities. In
the event that a register decides to accept such vessels, even though owner-
ship details are uncertain, it is strongly suggested that the vessels should be
clearly identified as failing to meet transparency requirements, and for such
details to be readily available to competent authorities.16

Obviously it will be utopian to think that we can change the order of the sea as
there are strong economical and political reasons to keep the strong position of
the flag state. The shipping industry is a large and important one, and in many
ways needs the possibility of changing nationality in order to become more com-
petitive. On the other hand, it must also be possible to weigh these commercial
needs against the need for security on the part of the coastal and port state.
There are in my view three possible approaches. Two are political, and the last
one is, perhaps as a last resort solution, of a more extreme legal nature.

a) The use of international pressure


Convincing flag states to tighten the control of their ships might not be possible
without some form of international pressure. A good example is the former interna-
tional ship register of Tonga. Following several serious incidents the Pacific Islands
Forum, which comprises 16 Pacific Ocean member states, announced that it would
form a group to study flags of convenience. The group stated in September 2002 to
the Pacific Business News that the security team would take a look at flags of con-
venience in Tonga and other Pacific Islands nations. The US was also concerned
with the possibility of a terrorist fleet of ships registered under the Tongan flag. It is
obvious that the closure of the Tongan register was done after a great deal of inter-
national pressure from various sources and could serve as an example on how to
deal with at least some states that offer their flags to suspicious ships.
The OECD has, for many years, worked particularly against the so-called tax
havens and used political pressure in order to convince states to change their
domestic legislation. In 1989 the OECD created the Financial Action Task Force
(FATF) which was given the responsibility of examining money laundering tech-
niques and setting out necessary measures to combat money laundering. In the
report by the OECD the same approach was suggested towards states which offer
flags of convenience. The OECD stated that:

Such actions by the international community are already under way in other
sectors, and have achieved a measure of success. For example, the OECD
Task Force on Harmful Tax Practices, has (amongst other things) received
commitments from a number of administrations to transparency and
exchange of information for tax purposes.17

The experience and working method of this task force could be used in relation to
tighten the control and transparency of the various flag states.
172 Gunnar Stølsvik
b) Establishment of a net of bilateral agreements
The US is currently trying to negotiate bilateral agreements with various flag
states for the right to inspect ships where there is suspicion that they carry
weapons of mass destruction. As part of the Proliferation Security Initiative
(PSI) the US has entered into bilateral ship-boarding agreements with Liberia,
the Marshall Islands and Panama. Liberia and Panama are the two countries with
the largest ship registries. The combination of Liberia, Panama and PSI core
partner countries means that now almost 50 per cent of the total commercial
shipping of the world measured in deadweight tonnage is subject to rapid action
consent procedures for boarding, search and seizure.18 The problem with this is
that such initiatives will only benefit a few states and will not cover the needs of
the world community in general. Furthermore, it has been proven that, some of
the most troublesome states are the ones which are least interested in entering
into such agreements.

c) The consequence of the lack of ‘genuine link’


As discussed earlier there might be a legal possibility to inspect a ship that does
not satisfy the criterion of a ‘genuine link’ and has obtained the nationality by
‘fraudulent’ means. Is it possible to regard the ship as ‘stateless’ and thus have the
rights of Article 110 of UNCLOS to visit the ship?
In the 1960 American Journal of International Law article by Myers
McDougal he expressed great concern over the introduction of the ‘genuine link’
as a criterion for determining the nationality of ships. In his view the requirement
of a genuine link might lead to:

the treating on the high seas of ships of other states as stateless with all the
consequences which attach to ships without nationality; it might permit some
states arbitrarily to deprive other states of their hitherto universally recog-
nised equal right to sail ships on the high seas; it might lead to the denial of
the right of innocent passage through the territorial sea to such ships and the
exclusion from access to internal waters and ports, and it would certainly
encourage discrimination in international sea commerce.19

Looking in retrospect of McDougal’s worries on the introduction of the genuine


link criterion we know that the genuine link never has been enforced in such a
way. But it is, however, tempting to reflect on the possibility, in extreme circum-
stances, of disregarding the flag of the ship where there is clearly no genuine link
between the state and the ship. An example would be if the flag state was not
interested in associating itself with the ship and did not respond to requests from
other governments or, based on a long-standing track record, the flag state has
clearly organized its ship registry in a way that contradicts good international
governance.
Flags of convenience – combating crime at sea 173
Concluding remarks
When combating the negative effects of flags of convenience it is perhaps best,
from a political point of view, to establish common global recommendations that
flag states should follow. The implementations of these recommendations should
be monitored by an international organization. Perhaps the OECD might be the
right organization to focus on such a task. If, however, taking into account the
potential risk the world shipping industry poses in international and organized
crime, the flag states do not implement such recommendations, there must exist
an international tool to convince those states to implement international norms of
good governance. The political tool to convince such states to do so could be to
refuse ships from certain flag states access to ports. The OECD also suggested
this approach in their report on ownership and control of ships. The OECD wrote
the following:

As an ultimate measure, in cases of extreme threat, or perhaps following a


terrorist attack, governments could move to restrict access to their ports only
to vessels from flags where it is known that ownership and control of their
ships is transparent, and ships whose ownership is known. This would be vir-
tually a measure of last resort when all other measures are exhausted. It
would provide governments with a breathing space and/or window of secure
opportunity to either address the threat, or if an incident has occurred to min-
imise the likelihood of a follow-up attack.20

Moreover, in case of suspicion of proliferation of weapons of mass destruction or


other serious criminal activity on board a ship, or fear that such acts are being
planned against other ships or offshore installations, the new, recently negotiated
protocol to the SUA Convention will hardly prove fully satisfactory. In such cases
it would most likely be more reassuring if, as a last resort, and after concluding
that the ship was in effect lacking any genuine link with the flag state, one might
regard it as a stateless ship and board it.

Notes
1 M. Gianni and W. Simpson, The Changing Nature of High Seas Fishing, World
Wildlife Foundation, 2005, p. 61.
2 Antigua Sun, 24 May 2004.
3 R. Palan, The Offshore World, Ithaca and London: Cornell University Press, 2003.
4 Quoted in M. S. McDougal, ‘The maintenance of public order at sea and the nationality
of ships’, The American Journal of International Law, vol. 54, no. 1, 1960, 32.
5 Ownership and Control of Ships, Report by the OECD Maritime Transport
Committee, March 2003, p. 6.
6 Ibid., p. 3.
7 ABC News Australia, 11 January 2002. Available online at: <http://www.abc.
net.au/news/newsitems/200201/s456988.htm> (accessed 9 May 2006).
8 BBC News, 22 March 2002. Available online at: <http://news.bbc.co.uk/2/hi/europe/
1887967.stm> (accessed 9 May 2006).
174 Gunnar Stølsvik
9 J. Brooke, ‘Landlocked Mongolia’s seafaring tradition’, New York Times, 2 July 2004.
Available online at: <http://www.globalpolicy.org/nations/flags/2004/0702land
locked.htm> (accessed 9 May 2006).
10 CBS News, 2 May 2003 and Straits Times, 22 May 2003.
11 Svalbard, also known as Spitzbergen, is a group of islands in the Artic Ocean. After
hundreds of years of disputes over whaling and mining privileges, a treaty was signed
in 1920 granting Norway sovereignty. Some 40 other nations have been granted
mining and other rights by the treaty. Today there are still disputes relating to the legal
interpretation of the Spitzbergen Treaty when it comes to the Norwegian claim of a
200-nautical mile ‘fisheries protection zone’ surrounding the Svalbard islands.
12 As an example, see ‘Muscat Dhows Case’, Decision of the Permanent Court of
Arbitration (RIAA), vol. XI, p. 83 and article 5 of the Convention on the High Seas
and UNCLOS, article 91.
13 Nottebohm was by German law a German national by birth and lived in Guatemala
from 1905 until his arrest in 1943. In 1939, before a state of war existed between
Germany and Guatemala, he visited Liechtenstein and became a Liechtenstein
national. He then returned to Guatemala where he resided as before. A state of war
came into existence between Germany and Guatemala and he was arrested in 1943
and deported to the USA. Upon his release, he applied for readmission to Guatemala
but was refused. Meanwhile, the Guatemalan government, after classifying him as an
enemy alien, expropriated his extensive properties without compensation. After this
incident Liechtenstein decided to bring the case to the International Court of Justice.
‘Nottebohm case’, International Court of Justice Report, 1955. For the full text of the
judgement, see <http://www.uniset.ca/naty/maternity/nottebohm.htm> (accessed 19
May 2006).
14 Ibid.
15 Quoted in H. Meyers, The Nationality of Ships, Den Haag: Martinus Nijhoff, 1967, p.
182.
16 Maritime Security – Options to Improve Transparency in the Ownership and Control
of Ships, Report by the OECD Maritime Transport Committee, June 2004, p. 15.
17 Ibid., p. 18.
18 A. Bergin, ‘The Proliferation Security Initiative: Implications for the Indian Ocean’,
International Journal of Marine and Coastal Law, vol. 20, 2005, p. 90.
19 McDougal, ‘The maintenance of public order at sea and the nationality of ships’,
p. 42.
20 Maritime Security – Options to Improve Transparency in the Ownership and Control
of Ships, p. 19.
PART IV

Comments and reflections


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

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

Focusing on terrorism
The 2001 terrorist assaults on New York and Washington did not only increase
vigilance concerning terrorism; these events, as well as subsequent ones in Bali,
Moscow and Madrid, to name a few, also served to increase interest in the subject
of terrorism – in the media, in politics, and among scholars and publishers. To
defence and security experts the study of terrorism even gained some semblance
of a growth industry. For the most part this has been positive – in many quarters
producing a much better understanding of the phenomenon of terrorism and its
178 John K. Skogan
causes. At the same time it has helped maintain the high and widespread attention
paid to the danger of terrorism and the need to thwart it.
However, the more extensive inquiry into the subject of terrorism has also pro-
duced a great diversity in the descriptions and interpretations of the phenomenon.
Rather than helping to clarify, this has sometimes tended to obscure the very con-
cept of terrorism. Contributing to this has been an occasionally somewhat
indiscriminate use of the term as well; at times the definitional net has been cast
quite far, and a wide range of violent actions of different sorts has been presented,
and examined, as cases of terrorism.
A partial explanation of this is probably that accounts of something being
linked to, or even claimed to be, terrorism may seem to stand a better chance of
being recognized as important and interesting by others – be they readers or lis-
teners. Another very likely motive is the expectation that acts of violence that
have received less attention than their brutal or menacing character seems to call
for, may be taken more seriously, and treated accordingly, if labeled terrorism.
This would not be much different from the attempts occasionally seen at elevating
certain challenges to a higher level of importance by presenting them under the
heading of national security. With reference to the comparison between piracy
and terrorism, it has been pointed out that ‘calling a crime an act of “terrorism”
instead of “piracy” is more likely to resonate with an indifferent public and draw
media attention, political support and funding’.1

Terrorism and violence


Traditionally the term terrorism has a strong condemnatory content. There is,
however, no copyright on the term. In this sense we are all free to use it as we see
fit. But the claim that terrorism is what we say is terrorism provides a rather poor
basis for fighting it. The concept could simply become too elusive to induce any
widespread aversion and to signify something worth rallying against. If a firm
and broadly based front against terrorism is to be maintained, one should be more
restrictive in the use of the term. Above all, care should be taken not to use it in
ways that may in fact assist in making terrorism become just another instance of
violent misdeed. Were that to happen it would represent a serious backlash in the
fight against terrorism. In order to maintain a united front against terrorism, and
in order to fight it effectively – including trying to stem its possible spread into
the maritime domain – a clear focus should be kept on terrorism as something dif-
ferent from other instances of objectionable use of violence.
Accordingly, a line of discrimination has to be drawn between different real-
life cases. When are we dealing with terrorism, and when are the exercises or
outbursts of violence that we see something else? Of course, that depends on what
we mean by terrorism. But this does not necessarily call for any full-fledged defi-
nition. There is a plethora of definitions of terrorism.2 The more important point
here, however, is whether there is anything particular about terrorism that puts it
apart from other kinds of violence, some characteristic that makes it stand out as
especially reprehensible in comparison.
Terrorism at sea: combating what – and how? 179
Usually we denounce violence, especially in its physical sense. We object to
the use of it as a way of resolving disputes, as a means of having one’s way. That
is, we do so in most cases – but not always. Actually, in some situations we hap-
pen to condone, or even actively support the resort to violence, for instance as a
defence against something we fear, or even as a means to teach someone a lesson
well deserved.
However, this does not lead us to support the use of terrorism for such pur-
poses. There is something special about terrorism. It is off limits.
Likewise, even if we generally denounce the use of violence, most of us may
occasionally find resorting to violent measures somewhat understandable as a
way of settling what seem otherwise insolvable, ruinous disputes between adver-
saries – thus more or less actually accepting resort to violence as a fact of life,
however deplorable.
With resort to terrorism it is different – we accept no excuses for it. Terrorism
is simply not permissible. At least, that is the way we used to consider it.

The ugly essence


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

Confronting terrorism
Here, too, lies probably the most powerful argument against labelling as terrorism
cases and kinds of objectionable violence that at best only border on the tradi-
tional understanding of what constitutes terrorism. The effect could easily be a
watering down of the very concept. In particular that might happen if cases of vio-
lence are included that do not involve targeting innocents. This might gradually
rob the term of some of its traditionally strong condemnatory content. In particu-
lar, one should avoid attempts at taking advantage of the strong and broadly based
condemnation of terrorism by also including under the label other unwelcomed
activities, and doing so in the hope of getting help to quell these. Such attempts
could risk splitting the front against terrorism and weaken the automatic rejection
of this ugly method of purposeful violence.
To put it shortly, in the interest of maintaining a solid alliance against terrorism
and preferably also expanding the alliance, one should see to it that the concept of
terrorism is kept pure and ugly – and, therefore, repulsive and frightening as well.
Basic to this argument is the still quite common and traditionally strong condem-
natory reaction to the deliberate targeting of innocents, quite often randomly
picked. However, stressing this distinctive feature of the terrorist method of utiliz-
ing violence carries two important implications.
First, attacks on military targets are not normally considered terrorist acts. In
most cases innocents means civilians, and more precisely civilians in non-military
roles. True, there certainly are exceptions to this, for instance with respect to mili-
tary personnel in or from countries not involved in the hostilities or in the underlying
situation of grievance. Moreover, such exceptions may be more numerous today due
to the growing use of military personnel in humanitarian, non-combatant opera-
tions. In addition, there are of course borderline cases. Nevertheless, the important
thing is that most cases are neither exceptions nor borderline cases, and borderline
cases do not stand in the way of recognizing clear-cut cases.
The disgraceful attack on the warship USS Cole in the port of Aden in
October 2000 is often referred to as an act of terrorism. There may be very good
reasons for calling the members of the group behind the attack terrorists on the
basis of their conduct in other contexts and with reference to their Al Qaeda con-
nections. Also, we might be justified in fearing that the mode of operation
employed in this attack could be repeated in the future, and then in indisputably
terrorist attacks. But if we insist on calling the USS Cole attack itself terrorism
we may be on a slippery slope, further along which we may have to defend posi-
tions that will definitely risk undermining the common stand against terrorist
acts. At its very end we may even find ourselves having problems in refuting
such ludicrous claims that attacks carried out by European resistance movements
against units of German occupation forces during the Second World War were
terrorist acts.
Terrorism at sea: combating what – and how? 181
In contrast to the attack on USS Cole the assault on the Italian passenger cruise
liner Achille Lauro in the Eastern Mediterranean in 1985 turned out to be a clear-
cut terrorist act. Another of the fortunately, so far, rather few examples of terrorist
acts taking place on the open seas is the attack on the French oil tanker Limburg
almost to the day two years after the attack on the USS Cole, and in fact more or
less repeating, it seems, the operational mode of that attack.
The second implication is that terrorism is not a method reserved only for
rebels and non-governmental groups. Governments, too, can resort to the use of
terrorism. If objecting to that, one should take note of ‘la grande terreur’, the
great terror in revolutionary France in 1793–94 – in fact then official government
policy – from which the term terrorism partly originates. Admittedly, however,
governments are vulnerable to unwarranted accusations of terrorism. The task of
trying to control situations of violence, at home as well as abroad, occasionally
puts government forces in situations where they are virtually unable to avoid
causing unintended harm and suffering among innocent civilians. This may even
be the result of an intended provocation by insurgents or other violent groups who
hide behind civilians and by doing so, are the ones actually using terrorist tactics.
However, this cannot hide the fact that governments too at times resort to terror-
ism, and do so deliberately, whether out of exasperation or frustration. Such
incidents hardly serve to consolidate the front against terrorism, neither will
attempts at renaming as something else violence directed by any current govern-
ment against innocent civilians as primary targets. Glossing over what is
troublesome sometimes serves to hightlight the problem rather than hide it.

A new kind of threat


The chief reason why it has become so important to consolidate and expand, if pos-
sible, the anti-terrorist alliance is that we may have entered a new stage in the danger
from terrorism. The events of 11 September 2001 introduced something new and
particularly frightening, the threat of what we may call large-scale, single-act ter-
rorism.5 This threat also applies to the maritime sector, and perhaps increasingly so.
Not only is this kind of terrorism particularly frightening as to its effects, it also
becomes frightening when we consider the possible motives behind it. And motives
are important when we contemplate the risks of maritime terrorism – what are the
motives most likely to produce terrorist acts at sea?
Motives for the use of violence are often instrumental. Violence and, in our
case, terrorism, is then a means to an end. Accordingly, the expected instrumental
usefulness of terrorist methods tempts the resort to such methods. For instance,
this happens at times in violent confrontations between governments and groups of
rebels. However, even if certainly deplorable and reprehensible, taken separately
such terrorist acts are mostly rather small scale. That does not mean that they
should be taken lightly, because, despite being small scale, over time they collec-
tively add up to quite a magnitude of harm, suffering and inexcusable killing.
Large-scale, single-act terrorism is different in terms of the extent of destruc-
tion and atrocities from a single act, or from a series of related, near-simultaneous
182 John K. Skogan
acts. Moreover, in some cases, such as 9/11, this kind of terrorism and the spec-
tacular havoc and consternation caused by it actually seems to be an end in itself,
the prime motives being pure hatred, the wish for revenge, or simply to bring
about a frightening and painful manifestation of protest. The act itself and its
immediate effects are rewarding to the perpetrators and a fulfillment of what they
are seeking. We may call such motives expressive as opposed to instrumental. In
the case of the latter, it is not the act itself but something different from the actual
terrorist act that is sought as an effect and a reward from it. Expressive motives do
not exclude instrumental ones. There may be a mix of the two kinds of motives
behind one and the same terrorist act. Moreover, the motives, and their mix, may
differ among its perpetrators and planners.
A few of the more spectacular large scale terrorist actions since 11 September
2001 may have been due mainly to instrumental motives. This is most likely true
of the terrorist operations by Chechen militants against a Moscow theatre in
2002 and at a school in Beslan two years later. However, in most other cases of
major post-9/11 terrorist attacks, including also some of the thwarted plots,
expressive motives seem to have provided an essential part of the underlying
incentives. In some cases, including 9/11 itself, it is likely that expressive
motives were predominant. In other cases such motives may have been mixed
with instrumental ones. However, apart from aiming to heighten the general fear
and discomfort in Western and Westernized societies, the instrumental motives
sometimes seem to have been of a more diffuse character, as in the case of the
explosions set off by terrorists in London in July 2005 as well as twice in Bali, in
October 2002 and 2005.

The maritime sector exposed


When the motives behind a terrorist act are expressive ones, it becomes extremely
important and almost a constituent part of the act itself to attract extensive atten-
tion and get far-flung media coverage. Accordingly, expressive motives make
terrorist acts particularly demanding in this respect. Added to this the magnitude
of the 9/11 attack against the World Trade Center has a dwarfing effect on smaller
terrorist actions, making these less noticeable. Expressive motives may therefore
incite attempts to compensate for this and to attract extensive attention either by
the magnitude of the havoc caused, or by the nature of the targets selected – or
both. This brings us to the maritime sector, including also the threat of what A.
Acharya in his chapter refers to as a ‘maritime spectacular’.
For one thing, the maritime sector may become increasingly attractive to actual
or would-be terrorists exactly because it may be seen as offering opportunities for
terrorist operations in forms that are new and spectacular, and therefore likely to
catch big headlines and possibly to cause substantial fear and shock as well.
Moreover, there is another reason why targets in the maritime domain may appear
to be of interest to groups and individuals that harbour expressive motives for ter-
rorism. Most of these groups and individuals seem, for the time being at least, to
share one and the same basic outlook marked by a distinct and strong anti-
Terrorism at sea: combating what – and how? 183
Western resentment. Hostile to and fearful of many of the ways and trends that in
Western parlance are termed modernization, these are people, many of whom are
also inspired by Al Qaeda methods, who are willing to take drastic steps to put
spectacular and frightening obstacles in the way of what they see as a pestiferous
Westernization, and to punish its protagonists and beneficiaries.
Several targets in the maritime sector may appear suitable for this purpose.
These are targets that may be seen as closely connected to Western interests and as
manifestations of Western-style transformation. Accordingly, attacking such tar-
gets may serve both as a formidable demonstration of protest and a way to take
vengeance on catalysts of the changes resisted. Particularly important with respect
to Southeast Asian waters, attacks on maritime targets could also be expected to
serve the possible instrumental terrorist motive of disrupting seaborne world trade,
a substantial portion of which is dependent on Asian sea lanes.6
Moreover, in the case of instrumental motives, targets at sea may offer other
advantages over onshore targets. Terrorists having managed to take control of a
target at sea may not be equally vulnerable from its close surroundings. If the
intention is not immediate destruction of the target, the closeness of an onshore
target to neighbouring constructions, as well as the normally easier access to it,
could put the terrorists’ control of the target in greater jeopardy by making it more
difficult to repel attempts to wrest the control away from them. Targets at sea may
prove more troublesome to get at in the first place. But if the intention is to hold
on to these, for blackmail or for some other purpose, the greater degree of seclu-
sion of maritime targets may provide valuable protection to terrorists against
intrusion and prying from the outside.
The latter advantage at sea to terrorists may also apply to the nightmare sce-
nario of their taking control of a gas tanker, or another large ship laden with
highly explosive material, in order to steer it into a big harbour and explode it. Not
only could the takeover of such a large and mobile vehicle prove easier to conceal
at sea, the takeover and the subsequent preparations for the intended terrorist
action might also remain unnoticed or successfully camouflaged for a longer
time, and closer up to the moment of execution.
Another alarming possibility is a terrorist attack against a passenger cruise
liner. As Acharya points out, today’s large cruise liners are not unlike floating
World Trade Centers.7 That could make for an almost equally horrifying attack
out at sea as the one against the twin towers. Moreover, to terrorists driven by
instrumental motives, the hijacking of a large cruise liner could offer possibilities
that neither the steering of airplanes into the twin towers nor the hijacking of the
airplanes used in that operation did. Following the seizing of a cruise liner, and
given present day state of the art with respect to combining explosives and elec-
tronics, the more remote position of the ship could make available to the terrorists
not only more time before any final detonation, but also passengers alive in great
numbers as hostages. That would provide an opening for threats, blackmailing
and terrorizing in ways that were not available to the 9/11 airplane hijackers had
they so wanted.
184 John K. Skogan
Broadening the front against terrorism
Even if attractive for several reasons to terrorists, the maritime sector also pre-
sents obstacles. Attacks against ships are probably most easily carried out in
harbours or close to shore. On the open sea, the same degree of relative seclusion
that can benefit terrorists if in control of a ship will work against their trying to
hijack it in the first place. Accordingly, their relative seclusion serves to protect
seaborne vessels, as well as other installations out at sea, against terrorist assaults.
For such assaults and in particular hijackings of larger ships to succeed, special
skills and resources are required. That brings us to the trade of piracy and the dan-
ger of pirates assisting terrorists. The latter possibility forms part of the
background of the reported fear of an emerging nexus of piracy and terrorism.8
The suitable skills and equipment, as well as other resources necessary for ter-
rorist operations at sea, can be acquired from several sources. What makes pirates
special in this context are the operational similarities between acts of piracy and
acts of maritime terrorism. Sneaking up on the target vessel, taking control of it,
as well as taking hostages, are such possible similarities, in addition to the use of
violence. However, it does not follow from this that fighting maritime terrorism
would be best served by making the fight against piracy part of the fight against
terrorism, and by dealing with pirates as if they were potential terrorists. And it
would certainly not be helpful to equate piracy with terrorism.9
That assistance from pirates would be useful to would-be terrorists at sea does
not mean that the former would be forthcoming in providing assistance. Despite
operational similarities, pirates and maritime terrorists would to a considerable
extent be competitors for the same prey. For genuine pirates there is virtually
nothing to gain from cooperation with terrorists. On the contrary, terrorist acts
carried out in waters where pirates operate are likely to harm the trade of the lat-
ter. Therefore, rather than treating pirates as terrorist suspects it might be a better
idea to reinforce their reasons for opposing terrorism and for trying to keep ter-
rorists away from their turf. This does not mean that piracy should be accepted or
condoned in any way. On the contrary, piracy should certainly be fought, however
as piracy, and not as something else. Likewise, true pirates should be pursued and
brought to justice if caught, but as pirates and not as potential terrorists, and in a
way that those apprehended know will make a difference.
The alternative might risk a conceptual muddling together of piracy and terror-
ism and should therefore be avoided for another reason. As pointed out earlier,
any widening of the concept of terrorism by including cases of violent misdeeds
that are not traditionally understood as terrorism should be avoided. Sticking to
the traditional understanding in this respect is important in order to mobilize
against terrorism as a particularly hideous and inexcusable employment of vio-
lence and to maintain a broad and unified front focused on fighting it, and
especially on reducing the danger of large-scale, single-act terrorism. For this
purpose, cooperation among governments is important, such as the cooperation
against terrorism agreed on in an Asian context within the Association of
Southeast Asian Nations (ASEAN).
Terrorism at sea: combating what – and how? 185
Equally important, however, is the common denunciation of terrorism in
public opinion, and in the various segments of the societies affected. Not only
will it serve to impede recruitment to groups intent on terrorism and cause their
financial support to dwindle, it is also critically important for popular support
of government efforts to fight terrorism. Therefore, governments should use
every opportunity to try to broaden this anti-terrorist front. In this respect it is
essential that governments, their agencies, and others, do not deviate from the
traditional understanding of what is terrorism by going after something else
under the anti-terrorist banner.
However, as indicated above, this is not the only argument for addressing the
problem of piracy as one different from the danger of maritime terrorism.
Actually, the interest in broadening the front against terrorism also makes a case
for differentiating between piracy and terrorism in order to try to reinforce the
incentives of pirates to keep terrorists away from their turf. Trying to curtail
piracy does not exclude taking advantage of the harmful effects of maritime ter-
rorism to pirates also, and of their natural interest, therefore, to keep away
would-be terrorists. The appropriate instrument here is not rewards, but deter-
rence. Those engaged in piracy should be given to realize that not only would
any of them getting involved in assistance to terrorism be chased and perse-
cuted in the harsh ways fit for terrorists, but that such involvement would risk
making the trade of piracy more difficult for them all. This might also be impor-
tant because would-be maritime terrorists might be tempted to try to use piracy
as a way of camouflaging preparations for terrorist acts. To the extent that gen-
uine pirates are encouraged to keep fake ones out of their trade, and would-be
maritime terrorists out of the waters of piracy, even pirates might become a de
facto party to the anti-terrorist front.
A similar line of argument could be applied to some of the insurgent organi-
zations operating in the Southeast Asian region, and occasionally at sea.
However, here the resort to terrorist acts by several such organizations and their
occasional affiliations with transnational terrorist networks makes matters
much more complicated, and the argument has to be made with substantial
reservations. Even so, to the extent that the agenda and the aims of such organi-
zations have a national, local orientation – as different, for example, from the
pan-regional agenda of the Jemaah Islamiyah organization – it may not serve
their interests to become involved in transnational terrorism, and with groups
possessed by expressive motives for large-scale terrorist acts. The local insur-
gents might, therefore, come to realize that this way they would most likely be
exploited for purposes that are not theirs, and in manners that could make them
more vulnerable and cause their popular appeal to shrink. At least, this could
benefit the efforts to defeat transnational terrorist movements intent on large-
scale terrorism, including maritime terrorism. Interestingly, it has been reported
that even within the Jamaah Islamiyah, splits have emerged between diehard
terrorists and those now considering terrorist bombings counterproductive.10
186 John K. Skogan
In conclusion
In addition to tracing terrorists, and pursuing known ones, there are basically
three different types of instruments available in fighting terrorism, and more
specifically, in trying to avert its spread into the maritime domain. The first one is
that of purely preventive measures that aim at curtailing the opportunities for suc-
cessfully preparing and carrying out terrorist operations. In the preceding chapter
by J. G. Christophersen several such measures aiming at preventing terrorist acts
at sea, or assisted from the sea, are explained. Not only do these kinds of mea-
sures limit the opportunities for terrorist operations at or from sea, they will most
likely also have a dissuasive effect on would-be maritime terrorists by making the
preparations for terrorist actions more difficult and the outcome less certain.
However, both to the shipping industry and others, some of these measures are
considered costly and awkward, and the more so the more thorough and far-reach-
ing the measures are. Yet such preventive measures cannot be made sufficiently
effective to preclude any act of maritime terrorism. More instruments are needed.
The second instrument is that of deterrence. The most obvious way of deter-
ring someone from doing something is to threaten to inflict costs and other forms
of punishment upon the perpetrator if the actual act is carried out. In this respect
it is extremely important that those who consider conducting, or assisting in, acts
of terrorism realize that not only will they be relentlessly pursued following the
act, it is also important that they know that if caught they will not just be treated
like other criminals; that they realize that terrorism is considered something espe-
cially hideous and inexcusable, and that they will be treated accordingly. True,
this will not necessarily deter really ardent terrorists who may even be seeking
martyrdom one way or another. But this kind of deterrence may not be lost on oth-
ers who might consider providing critical assistance to the preparations. This is
particularly important with respect to the danger of maritime terrorism because
the preparation of terrorist acts at sea may require more outside and specialized
assistance than on-shore acts normally do.
Therefore, here in particular, one should keep in mind also what we may call
‘environmental deterrence’, the deterrent effect not of direct threats of punish-
ment but of likely costs incurred from disturbances on the societal and operative
environment in case of terrorist acts and involvement in their preparation.
Potential costs may have a deterrent effect whether directly threatened or not.
And, whatever the case, if likely, they may reduce the willingness to support and
assist in preparations of terrorism. Moreover, even if not a product of direct
threats, environmental deterrence and the potential costs that it is due to, are sub-
ject to change and can be intentionally influenced and increased.
This brings us to the third instrument available in countering terrorism and its
potential spillover into the maritime domain. The instrument is simply that of com-
mon and widespread moral denunciation of the method of terrorism. It is a typically
‘soft’ instrument. However, that does not mean that it is ineffective or unimportant.
On the contrary, in fighting terrorism it is both important in itself and critically sup-
portive of the two other instruments available – and of the tracking of terrorists. In
Terrorism at sea: combating what – and how? 187
itself it is basic to the front against terrorism and the focus on it as something par-
ticularly nasty and condemnable. This way it gives weight, as well, to the argument
for trying to prevent its spread into the maritime domain. Also, it serves to increase
the vigilance against signs of preparations for terrorist actions, and possibly to limit
any attraction to, or actual recruitment to, terrorist supportive movements.
Moreover, the distinct moral denunciation of terrorism is also critically impor-
tant both in supporting the preventive measures taken against terrorism, including
against maritime terrorism specifically, and in supporting measures aiming at
deterring terrorists and their potential providers of assistance. And not to be over-
looked, the moral denunciation of terrorist acts may constitute one particularly
important factor in the environmental deterrence against supporting terrorism.
Such denunciation is likely to increase and broaden the likely societal distur-
bances from terrorist acts in ways that may prove harmful to potential providers of
assistance to terrorism.
In short, the moral denunciation of terrorism is not only an important instru-
ment by itself in combating terrorism. Indirectly, it may also add in significant
ways to the obstacles and risks facing those who might consider acts of terrorism
or who are being tempted to assist in their preparation. If, the common moral
denunciation of resorting to terrorism were to start crumpling, the negative con-
sequences for combating terrorism could well be profound. Especially worrying
could be a relative weakening of the fight against large-scale terrorism, and of the
effectiveness of efforts to prevent the spillover of this kind of terrorism to the
maritime domain. Of course, this could turn out not to matter. The danger of any
substantial degree of such a spillover is not great, and it may not occur anyway.
But even so, the risk of maritime terrorism in a large-scale manner is a real one
and should be taken seriously in view of its consequences if it were actually to
occur. That includes avoiding steps that might risk impairing the front against ter-
rorism and the uncompromising widespread moral denunciation of it.

Notes
1 R. Herbert-Burns and L. Zucker, ‘Drawing the line between piracy and maritime
terrorism’, Jane’s Intelligence Review, September 2004, p. 31. Based on a different
argument the authors themselves tend, however, to equate certain instances of piracy
with terrorism: by providing funding, as well as other means and skills required, acts
of piracy may contribute to future terrorist acts.
2 An instructive list of a dozen or so definitions is provided by D. J. Whittaker in
Terrorism: Understanding the Global Threat, London: Longman, 2002, pp. 22–3.
Despite efforts to do so the United Nations has still not reached an agreement among
its member states on a standard definition. See <http://www.unodc.org/unodc/
terrorism_definitions.html > (accessed 28 April 2006). A common characteristic
attributed to terrorism in most definitions, though, is that it is the use of violence
perpetrated in the pursuit of political, religious or ideological aims. The aim is not
financial gain or material enrichment, as is usually the case with other forms of
violent crime.
3 Nor is instigating fear and terror. Claims that the latter is the most distinguishing
feature of terrorism have occasionally been made with reference to a quote – somewhat
cut out of its context – from Bruce Hoffman by which he starts defining terrorism ‘as
188 John K. Skogan
the deliberate creation and exploitation of fear through violence or the threat of
violence in the pursuit of political change’ (B. Hoffman, Inside Terrorism, London:
Victor Gollancz, 1998, p. 43). And, of course, inducing terror is a most distinctive
feature of terrorism; it has even given the method its name. But it is not exclusive to it.
Dread and terror – along with violence as well – are also among the ingredients of
ordinary war fighting; actually, causing terror among enemy troops and soldiers is
sometimes successfully used to weaken both their will and their ability to fight on.
4 ‘Remarks by the President in Photo Opportunity with the National Security Team’,
White House, September 12, 2001. Available online at:<http://www.whitehouse
.gov/news/releases/2001/09/20010912–4.html> (accessed 26 April 2006).
5 Lawrence Freedman uses the more handy term super-terrorism. See L. Freedman, ‘The
Transformation of Strategic Affairs’, Adelphi Paper 379, March 2006, p.10 and p.53.
6 This theme is covered extensively by M. Richardson in A Time Bomb for Global
Trade, Singapore: The Institute of Southeast Asian Studies, 2004.
7 The danger of this kind of terrorist attack is also mentioned by M. Richardson in the
preface to his book, but due to the theme of the latter not further elaborated there, see
ibid.
8 Warnings about this kind of nexus are well published. See for instance G. Luft and A.
Korin, ‘Terrorism goes to sea’, Foreign Affairs, vol. 83, no. 6, November/December
2004. Also, however, see C. N. Dragonette, ‘Lost at sea’, Letter to the Editor, Foreign
Affairs, vol. 84, no. 2, March/April 2005), 174–5.
9 An example of logic going astray is the argument that when – and if – piracy is being
used to get money for the funding of terrorist activities, piracy should really be
regarded as an integral part of terrorism. Like special skills and other resources needed
for maritime terrorism, financial funding, too, can be obtained in many ways. Some
are legal and others illegal. With regard to the latter, one means of funding that has
been used to get revenues for violent activities that include acts of terrorism, is human
trafficking and prostitution. Does that make the latter an integral part of terrorism?
10 See ‘Southeast Asian Counter-Terrorism after “Bali 2”’, IISS Strategic Comments,
vol.11, issue 8, October 2005.
14 Reflections on the changing maritime
security environment
Kwa Chong Guan

Towards a maritime perspective of Southeast Asia


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

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

Projecting naval power for domination and control of the sea


Were the Ming voyages nothing more than a massive display of peace and good-
will, ‘to confer presents on the barbarians in order to manifest the transforming
power of the imperial virtue’ as Zheng He declared in a memorial9 he erected in
1432 in the temple of the Heavenly Queen (Dian-fei) at Zhan-lo, Fujian, to com-
memorate his epic voyages? Or, were these Ming expeditions precursors of the
Portuguese voyages lead by Vasco da Gama a bare 50 years later which lead to the
establishment of the Estado da India that fought to control Asian trade for the next
three centuries? These Portuguese voyages were the extension into the ocean of a
series of European political conflicts and rivalries to protect and extend their
growing trade. Between 1450 and 1495 a series of Papal bulls divided the world
oceans between Portugal and Spain to explore and control for their trade (and in
the process, convert the natives to Christianity). This drive to control and domi-
nate the seas was succinctly stated by Sir Walter Raleigh (1552–1618):

Whosever commands the sea commands the trade; whosever commands the
trade of the world commands the riches of the world, and consequently, the
world itself.10

A consequence of this Iberian competition for command of the sea was that Spain
claimed the islands that today form the Philippines, while Portugal claimed the
islands to the west. But Portugal’s assertions to command the sea routes in the
The changing maritime security environment 191
Indian Ocean were challenged not only by Asian potentates, but more critically,
by the emerging merchant capitalist economies of England and Holland. It was
this rivalry between the English, Dutch and French East India Companies and
against the older Estado da India for command of the sea between 1600 and 1800
that effectively defined the region we know as Southeast Asia today.11 A Dutch
capture of the Portuguese carrack the Santa Catarina on 25 February 1603 was a
turning point in this contest for command of the sea.12 Forced to respond to
Portuguese charges of piracy, the Dutch engaged Hugo Grotius to draft a defence
of their action. The text of Grotius’ defence of the Dutch, Mare liberum, sive de
jure quod batavis competi ad indicana commercia dissertatio or, ‘The freedom of
the seas, or the right which belongs to the Dutch to take part in the East Indian
trade’ has since become the benchmark text of the case for the freedom of the sea
up to today. In response to Grotius, the monk Seraphim de Freitas drafted De justo
imperio luistanorum asiatico (‘The imperial right of the Portuguese in Asia’) and
John Selden was commissioned by the Crown to draft Mare clausum, seu de
dominio maris libri duo (‘The closed sea, or two books concerning the rule over
the sea’).13 These and other tracts were major contributions to a ‘Battle of the
Books’ about how to construct the spaces of the seas that the Portuguese, Dutch
and English were sailing into.
The British found it useful to uphold this definition of the freedom of the sea for
the smooth flow of trade for as long as ‘Britannia ruled the waves’. A. T. Mahan
recognized that the British Empire was underpinned by maritime commerce and
naval power to protect it.14 Mahan’s case for naval supremacy and the will to
achieve it by battle has shaped naval strategy through the twentieth century. The
Second World War in the Pacific was essentially decided in the naval battles
between the Japanese and the Americans, especially at Midway. These battles
shaped US naval strategy for the remainder of the twentieth century, culminating in
the ‘From the Sea’ and ‘Forward ... from the Sea’ strategies of the 1990s.
Is Mahan’s understanding of naval strategy alive and well in the twenty first
century?15 If nation states, and especially the major powers, continue to define
their national interests in terms of a balance of power at sea, then a blue water
navy capable of executing a Mahan strategy for dominance of the high seas is an
essential component of that balance of power. ASEAN will continue to witness
the major powers developing and maintaining blue water navies to project power
into the South China Sea and the Indian Ocean through its waters. Both China and
India are actively upgrading their naval strategies and the prospect for ASEAN to
witness a Chinese or Indian carrier battle group, the modern equivalent of the
Ming treasure ships, sail through the Straits of Malacca is good.

UNCLOS and the continued domination of the seas


If the sixteenth-century ‘Battle of the Books’ was about constructing ocean
spaces to meet the needs of early modern mercantilist capitalism, then arguably,
the Third United Nations Law of the Sea Conference and its predecessors has
been about the reconstruction of ocean spaces to fuel the demands of modern
192 Kwa Chong Guan
industrial capitalism. Just as issues of sovereignty of the seas underpinned J.
Selden’s arguments for a mare clausum that the state could exercise jurisdiction
over, so too the United Nations Convention on the Law of the Sea (UNCLOS)
adopted in Montego Bay, Jamaica, on 10 December 1982 and entered into force
on 16 November 1994 is about the sovereignty that coastal states are allowed to
exercise over adjacent seas. Under the provisions of UNCLOS 151 coastal states
have claimed sovereign rights over adjacent seas and 54 have claimed a 200 mile
exclusive economic zone (EEZ).
Unsurprisingly, these new claims to sovereign rights over the seas have reiter-
ated a number of old territorial and maritime disputes which R. Emmers and
L. Prabhakar review in their contributions to this volume. China’s claim to the
Nansha Islands, otherwise known as the Spratly Islands, is based on its reading of
the UNCLOS provisions for demarcation of territorial seas.16 How are Indonesian
and Philippine claims to sovereignty over their archipelagic waters to be balanced
with the need by other user states for freedom of navigation and over flight
through and over the archipelagic states? It is an issue R. Beckman tackles in his
paper in this volume.
UNCLOS has placed new and heavy demands on the Association of Southeast
Asian Nations (ASEAN) navies to develop the capability to support their state’s
claims to sovereignty over territorial waters and a 200 mile EEZ. UNCLOS may
have stressed the ‘peaceful use of the sea’, but it unfortunately did not specify
what constitutes ‘peaceful use of the sea’. We may agree that the EEZ is a special
regime, neither high seas nor territorial waters, through which there is freedom of
navigation and over flight, subject to the principle of ‘due regard’ and ‘non-abuse
of the rights of others’. But we are unable to agree on what constitutes ‘due
regard’ and ‘non-abuse of the rights’ among a much wider area of disagreement
about the provisions of UNCLOS. This makes the navy’s task of monitoring and
regulating maritime activities far more complex. What differentiates (acceptable)
maritime scientific research and (unacceptable) hydrographic surveying? The
challenge for not only ASEAN, but all other regional navies, is how to decide
what is an acceptable level of military activity within their EEZ and how to
respond to an ‘unacceptable level of military activity’.
Current trends indicate that intelligence gathering and other military activities
in EEZs are on the rise and encounters with coastal state navies may spiral into a
crisis. The crisis that followed the 1 April 2001 Chinese interception of a United
States EP-3E surveillance plane is the most spectacular of a recent series of
encounters.17 A week before this EP-3E incident, a Chinese frigate came within
100 metres of the US Navy’s hydrographic survey vessel Bowditch collecting data
within China’s EEZ in the Yellow Sea and forced it to desist. In March 2001 India
also protested the Bowditch’s activities 30 nautical miles from its Nicobar Island.
Earlier, in January, India also protested against the surveying activities of HMS
Scott 190 nautical miles from Diu and near Porbadnar. Japan has detected an
increasing number of Chinese and North Korean vessels collecting intelligence
within its waters. In December 2001 Japanese coast guard vessels pursued a
‘Chinese’ fishing vessel, which its crew scuttled and sank with the vessel when it
The changing maritime security environment 193
was surrounded by the Japanese coast guard. The vessel was raised in September
2002 and identified as a North Korean intelligence ship and is now exhibited in
the Maritime Museum in Tokyo.

ASEAN response: regionalize maritime security


The ASEAN response to ‘unacceptable levels of military activity’ in their waters
will be to try to develop their capacity for more effective surveillance and
enforcement of their rights over their waters. But it is unlikely that ASEAN navies
will have the capability or political support and will to block the Bowditch or the
PLA’s ‘oceanographic research’ vessel Xiangyang Hong 09 if it is found operating
within the EEZ of ASEAN coastal states. ASEAN’s best policy option appears to
be to extend its ASEAN Regional Forum (ARF) strategy of engaging and
enmeshing other regional navies in building confidence and transparency. At the
operational level, they will seek to engage the major navies of the region in joint
exercises and training, as well as exchange of port visits with the hope of promot-
ing transparency. The navies of Malaysia and Singapore lead in having a long
standing series of exercises codenamed ‘Flying Fish’ and ‘Starfish’ with their
Australian, British and New Zealand counterparts under the aegis of the Five
Power Defence Arrangement (FPDA). More recently, they have joined the
Indonesian and Thai navies in engaging the US Seventh Fleet in a series of ‘Carat’
exercises. Contingency planning for Search and Rescue Operations under the
ARF’s Intersessional Group on Confidence Building Measures (CBMs) is
another step in interlocking the region’s naval capabilities.
This strategy of engaging and enmeshing regional navies to build confidence
and promote transparency has to be underpinned at the policy level by a network
of forums and regimes to frame naval cooperation. The FPDA is probably the
longest established forum for naval cooperation. The Western Pacific Naval
Symposium and the ARF’s Intersessional Group on Confidence Building
Measures are other forums. The challenge is to develop more such forums to pro-
mote and implement naval cooperation rather than competition by moving
confidence building from declaratory measures such as acceptance of the UNC-
LOS or the ASEAN Treaty of Amity and Cooperation to transparency measures
focusing especially on information and data exchange, joint exercising and train-
ing, and to constraint measures. The latter would include various risk reduction
agreements, especially Incidents at Sea agreements,18 to pre-empt inherently dan-
gerous or inadvertent naval manoeuvres. UNCLOS with all its ambiguities, as S.
Bateman points out in his paper in this volume, remains the overarching frame-
work and, arguably, confidence building measure (CBM), for the management of
conflicting claims to sovereignty over offshore islands and other maritime dis-
putes. We need some agreement on guidelines for how these ambiguous
UNCLOS provisions, especially on the EEZ, are to be interpreted.19
Promoting naval cooperation is part of the wider problem of maritime security
in Southeast Asia, which has at its roots issues of conflicting claims to sover-
eignty over bodies of seas. A separate series of forums has evolved to explore the
194 Kwa Chong Guan
prospects of a ‘softer’ multilateral and institutional approach to managing dis-
puted maritime claims and overlapping maritime jurisdictions and avoid the
‘hard’ security of naval cooperation. A series of Workshops on Managing
Potential Conflict in the South China Sea has studied the prospects of joint devel-
opment of the resources of the Spratlys while avoiding issues of their sovereignty.
The ARF has since its inception in 1994 emerged as the overarching forum for a
multilateral cooperative security regime in the region. In May 2006 ASEAN
Defence Ministers initiated a long-overdue dialogue which may become an
annual event. A growing number of policy institutions have formed networks to
support these ASEAN and ARF initiatives for cooperative security. The ASEAN
Institutes of Strategic and International Studies, established in 1984, is the oldest
network of strategic studies institutions in the region. The Council for Security
Cooperation in the Asia Pacific (CSCAP) has positioned itself as a parallel
‘Track-2’ network in support of the official ‘Track-1’ ARF. A Working Group
(now Study Group) of CSCAP has been examining issues of maritime coopera-
tion leading to a number of policy proposals to the ARF.20
The challenge for ASEAN is that it may end up with two categories of forums
with incompatible conceptual underpinnings. Its forums to promote confidence
building measures for naval cooperation are premised on ‘hard’ realist assump-
tions of state security being dependent upon the development and deployment of
military force. In contrast, its forums on multilateral cooperative security are ded-
icated to establishing ‘regimes’ that will seek to improve the quality and quantity
of information between states, install legal frameworks with liability for actions
by states with the intention of reducing transaction costs in their interactions.21
Can these two emerging categories of forums be linked, or should they be de-
linked, because as the Director of the International Institute for Strategic Studies
intoned, ‘the development of cooperative security mechanisms must not obscure
the need to assure that an overall balance of power remains’.22

New realities: ocean management regimes


The options for ASEAN navies to respond to the projection of naval power in fur-
therance of maritime conflicts and competing jurisdiction claims to seas are, at
the beginning of the twenty-first century, slightly wider and far more complex
than at the close of the last century. These options open to ASEAN navies are a
consequence of new and more complex demands on naval power in the twenty
first century. The principal drivers of these new and increasing complex demands
on naval power are a transformation of the naval environment caused by global-
ization23 and are transforming the way we construct the spaces of the seas.
Trade as one of the drivers of this cycle of globalization, as in an earlier cycle
of globalization at the end of the eighteenth and beginning of the nineteenth cen-
turies which created the modern world, is forcing us to reconstruct the network of
ports and the sea lanes of communication (SLOCs) that links them. Ensuring the
safety of these SLOCs in more efficient monitoring and regulating of traffic in
The changing maritime security environment 195
congested stretches of seas, especially the Straits of Malacca, or measures to
reduce the prospect of accidents at sea and in ports takes on new dimensions as
J. Ho points out in his essay, because the disruption of shipping undermines the
network of ports through which flows the trade that underlies the globalization of
our economies upon which we have predicated our economic well-being. The
global networking of an increasing number of regional ports around a few mega-
hub ports such as Hong Kong, Osaka, Shanghai and Singapore for more efficient
logistics and supply chain management means that a disruption or closure of any
of these hub ports affects trade and shipping more than the closure of an SLOC.
The challenges to maritime traffic are not only old-fashioned piracy, which is
on the increase, but now also organized crime hijack of ships. The problem of
monitoring container cargoes has become more complex post-9/11, with the
threat of global terrorist networks attempting to ship weapons of mass destruction
in containers. The Regional Maritime Security Initiative proposed by the US in
response to these new issues of maritime security is, as C. Stryken points out,
controversial. The probability of a post-9/11 transnational terrorist attack on sea
lanes or a hub port discussed by A. Acharya in his paper in this volume may now
be low, but the outcome of such an attack would have high consequences and as
such change our understanding of what constitutes maritime security, while blur-
ring the distinction between security and safety.
For Mahan the high seas were essentially an arena within which navies
manoeuvred for control and dominance of the sea lanes and its chokepoints.
Globalization has transformed the sea into a resource to be managed.24 The
widening search and drilling for offshore oil and gas and mining of other seabed
minerals, coupled with a growing demand for fish and other marine food
resources, demands that navies traditionally charged with ensuring the security of
the state must now either develop new capabilities for protection of offshore
assets or forms of cooperation with coast guards and other government agencies
for enforcement of the law in the seas claimed by the state. Navies and other
national agencies will increasingly have to work in support of existing maritime
cooperation conventions for maritime safety and the environment promulgated by
the International Maritime Organization. For much of the preceding century naval
strategy was about how to project naval power for control of the high seas. The
challenge for naval strategy in the twenty-first century appears to be more about
how to build good order at sea for the safety of maritime assets and shipping.

Conclusion
Putting in place ocean management regimes for good order at sea assumes that we
are aware and appreciative of how the sea impacts on us and therefore are pre-
pared to join other agencies at the national level to work for a regional approach
to maritime security and safety. The starting point of these reflections on the
transformation of maritime security in Southeast Asia at the beginning of the
twenty-first century was the need for an enhanced awareness of the sea in our
196 Kwa Chong Guan
social memories of who we are as a people and region.25 These reflections end on
the note that without social memories of the sea we are unlikely to commit to
regimes for good order at sea.

Notes
1 Instead, ethnicity and its consequences on the cultural matrix of the new nation states
has been one of the main drivers of national unity and identity. See C. van Dijk, ‘Java,
Indonesia and Southeast Asia: how important is the Java Sea?’ in V. J. Houben, H. M.
J. Maier and W. van der Molen (eds) Looking in Odd Mirrors: the Java Sea, Semaian
5, Leiden: Vakgroep talen en Culturen van Zuidoost-Azië en Oceanië,
Risksuniversiteit te Leiden, 1992, pp. 289–301; also A. C. Milner, ‘“Malayness”:
confrontation, innovation and discourse’, in Houben, Maier and van der Molen (eds)
Looking in Odd Mirrors, pp. 43–59.
2 G. Wade, ‘The Zheng He voyages: a reassessment’, Journal of the Malaysian Branch
of the Royal Asiatic Society 78/I, 2005, pp. 37–58, also available as Asia Research
Institute Working Paper no. 31, October 2004. Available online at:
<http://www.ari.nus.edu.sg/docs/wps/wps04_031.pdf > (accessed 3 July 2006).
3 The ‘Treatise on Superfluous Things’ or Zhang wu zhi, was the title of a popular Ming
dynasty manual on connoisseurship by Wen Zhengheng.
4 See P. J. Rivers, ‘Negeri below and above the wind: Malacca and Cathay’, Journal of
the Malaysian Branch of the Royal Asiatic Society 78/II, 2005, pp. 1–32 for the
variant Malay and European interpretations of this toponym in its Malay context.
5 See O. W. Wolters, History, Culture, and Region in Southeast Asian Perspectives,
revised edn, Ithaca: Southeast Asia Program Publications., Cornell University and
Singapore: Institute of Southeast Asian Studies, 1999, pp. 44–5 for an elaboration of
the seas from the east coast of Africa to China forming ‘one single ocean’. Also note
K. N. Chaudhuri, Trade and Civilisation in the Indian Ocean: An Economic History
from the Rise of Islam to 1750, New York: Cambridge University Press, 1985, p. 119,
on structures in the long cycle of Indian Ocean history.
6 H. M. J. Maier, ‘The Malays and the sea: the waves and the Java Sea’, in Houben,
Maier and van der Molen (eds) Looking in Odd Mirrors, pp. 1–26.
7 See the papers by S. H. Leong and J. W. Christie among others in J. Kathirithamby-
Wells and J. Villiers (eds) The Southeast Asian Port and Polity: Rise and Demise,
Singapore: Singapore University Press, 1990, for the background to the Southeast
Asian emporiums.
8 In contrast, the Mediterranean was for the Romans mare nostrum, space to be secured
and controlled, perhaps dominated – M. M. du Jourdin, Europe and the Sea, translated
by T. L. Fagan, Oxford: Blackwell, 1993.
9 Translation of this stele by J. J. L. Duyvendak, ‘The true dates of the Chinese
maritime expeditions in the early fifteenth century’, T’oung Pao 34, Leiden, 1938,
p. 349.
10 R. D. Heinl, The Dictionary of Military Quotations, Annapolis: United States Naval
Institute, 1978, p. 288.
11 See A. Reid (ed.), Southeast Asia in the Early Modern Era: Trade, Power, and Belief,
Ithaca: Cornell University Press, 1993, pp. 3–19.
12 M. van Ittersum, ‘Hugo Grotius in context: Van Heemskerck’s capture of the Santa
Catarina and its justification in de jure praedae (1604–1606)’, Asian Journal of Social
Sciences 31/III, 2003, pp. 511–548; P. Borschberg, ‘The seizure of the Santa Catarina
revisited: the Portuguese Empire in Asia, VOC politics and the origins of the Dutch
Johor Alliance (1602–1616)’, Journal of Southeast Asian Studies 33/I, February 2002,
pp. 31–62.
The changing maritime security environment 197
13 J. Selden, Of the Dominion, or Ownership of the Sea: Two Books, New York: Arno,
1972.
14 See P. Kennedy’s 1976 revision of Mahan’s ideas and influence by counterposing him
with H. J. Mackinder, ‘the prophet of land power’ in ‘Mahan versus Mackinder: two
interpretations of British sea power’, in Kennedy, Strategy and Diplomacy,
1870–1945, London: Fontana Press, 1984, and also Kennedy, The Rise and Fall of
British Naval Mastery, London: Fontana Press 1991, reprinted, chapter 7.
15 See P. A. Crowl, ‘Alfred Thayer Mahan: the naval historian’, in P. Paret (ed.) Makers
of Modern Strategy: From Machiavelli to the Nuclear Age, Princeton: Princeton
University Press, 1986, pp. 444–80 for a critical appraisal, compare this with G. Till,
Seapower: A Guide for the Twenty-first Century, London: F. Cass, 2004, drawing on
Mahan to frame his approach to seapower.
16 See for an example of China’s statement of its claim, S. Y. Pan, The Petropolitics of
the Nansha Islands: China’s Indisputable Legal Case, translated by D. Chen, Hong
Kong: Economic Information & Agency [sic], July 1996.
17 See for an official US version of these incidents, J. Bussert, ‘China taps many
resources for coastal defence’, Signal, AFCEA, November 2002.
18 The 1972 US–Soviet Navy-to-Navy (INCSEA) concluded as part of a
Cold War détente is the benchmark CBM for major-power navies.
19 See for instance, Guidelines for Navigation and Overflight in the Exclusive Economic
Zone, EEZ Group 21, Ocean Policy Research Foundation, Tokyo, Japan,
16 September 2005.
20 Most of the deliberations of this CSCAP Working Group have been edited by S.
Bateman and S. Bates and published by the Strategic and Defence Studies Centre as
part of its Canberra Papers (CP) on Strategy and Defence: among others, Calming the
Waters: Initiatives for Asia Pacific Maritime Cooperation, CP 114, 1996; The Seas
Unite: Maritime Cooperation in the Asia Pacific Region, CP 118, 1996; Regional
Maritime Management and Security, CP 124, 1998; Shipping and Regional Security,
CP129, 1998; and Maritime Cooperation in the Asia-Pacific Region: Current
Situation and Prospects, CP132, 1999. A more recent publication is P. Cozens and
Joanna Mossop (eds.) Capacity Building for Maritime Security Cooperation in the
Asia-Pacific, Wellington: Centre for Strategic Studies, New Zealand, 2005.
21 See M. J. Valencia, ‘Prospects for multilateral maritime regime building in Asia’, in
S. Bateman (ed.) Maritime Cooperation in the Asia-Pacific Region: Current Situation
and Prospects, Canberra Papers on Strategy and Defence no. 132, Canberra: Strategic
and Defence Studies Centre, Research School of Pacific and Asian Studies,
Australian National University, 1999, pp. 27–67.
22 J. Chipman, ‘The new regionalism: avoiding strategic hubris’, in D. Roy (ed.) The
New Security Agenda in the Asia-Pacific Region, London: Macmillan, 1997, p. 21.
23 See the essays in S. J. Tangredi (ed.) Globalization and Maritime Power, Washington,
DC: National Defense University, Institute for National Strategic Studies, 2002,
exploring the impact of globalization on the maritime environment and its
implications for defence planning.
24 G. Till, Seapower, chapter 10 on securing the sea as a resource, as a means of
transportation and means of exchanging information.
25 In contrast there appears to be awareness of a distinct social memory of the
Mediterranean, on which see the classic study of F. Braudel, The Mediterranean
and the Mediterranean World in the Age of Philip II, translated by Sian Reynolds,
New York: Harper and Row, 1966 and also Braudel, Memory and the
Mediterranean in R. de Ayala and P. Braudel (eds), translated by Sian Reynolds,
New York: Knopf, 2001.
PART V

Afterword
15 The important role of shipping
Challenges ahead
Tay Lim Heng

The shipping industry: foundation of a globalized economy


Shipping is the life blood of the global economy and is responsible for the car-
riage of 90 per cent of world trade, according to the International Maritime
Organization (IMO). One cannot overemphasize the important contribution of
this industry to the global economy. Without shipping, there would be no global-
ization, the ‘China effect’ would be impossible, societies would have remained
separated, there would be no interchange of cultures, nations would not be able to
realize their full economic potential and in the words of the Secretary-General of
the IMO, ‘half the world would starve and the other half would freeze’.1
The global economy could not function if it were not for ships and the ship-
ping industry. Today, no nation can be fully self-sufficient. Every country is
involved, at one level or another, in the process of selling what it produces and
acquiring what it lacks. In 2004 alone, the industry shipped around 6.8 billion
tonnes of goods over a distance of about 4 billion miles resulting in an astound-
ing total of over 28 billion tonne-miles of trade. If the goods transported were to
consist only of rice, we would have enough to feed Southeast Asia for 6,200
centuries!
Advances in technology and management have made shipping the mainstay of
world trade. Progress on these fronts allowed generalized transport costs in the
shelf price of consumer goods to remain low. For example, shipping costs account
for only around 0.8 per cent of the shelf price of a DVD player and 1 per cent of a
can of beer. It is without doubt that falling shipping costs is a major factor con-
tributing to the expansion of seaborne trade from less than 6 billion tonne-miles
in 1965 to the latest full-year figure of 28 billion tonne-miles in 2004.
Southeast Asia is one of the most important regions in the world to the ship-
ping industry. The region is collectively the fourth most important maritime
region in the world, after the EU, East Asia and North America. Southeast Asian-
domiciled vessels accounted for more than 45 million or 5.5 per cent of the
world’s deadweight tonnage as at January 2005.
Looking at Singapore, the maritime industry is a significant part of the econ-
omy, having generated S$7.9 billion in direct value added and contributed to 4.9
per cent of Singapore’s gross domestic product (GDP) in 2002. Including the
202 Tay Lim Heng
indirect value added would raise the industry’s contribution to account for 7.3
per cent of Singapore’s GDP. The industry is also responsible for the employment
of around 86,500 people, which is 4.3 per cent of nationwide employment.
Singapore is the world’s busiest port in terms of shipping tonnage receiving
more than 1 billion gross registered tonnes on an annual basis. The country is also
the world’s busiest bunkering centre with sales volume double that achieved by its
nearest rival. The container port can claim to be the largest container transhipment
hub in the world responsible for handling 25 per cent of the world’s transhipment
traffic. Singapore is also reputed to be the world’s third largest oil refining centre
and largest vehicle transhipment hub in Asia, and the country’s shipyards are
responsible for 70 per cent of the global market share in the conversion of
Floating Production Storage Offloading (FPSO), 70 per cent in jack-up rigs and
20 per cent of ship repair.

Challenges faced by the shipping industry


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

The new golden age of shipping –


managing the shipping business cycle
The recent years beginning from 2003 have been termed by the shipping industry
as the ‘New Golden Age’ of shipping. With the current rate of growth unabated at
4 per cent, world seaborne trade would cross the 7 billion tonnes milestone in
2005. Measured in tonne-miles, we should see world seaborne trade reaching a
historic 30 billion mark in the coming year.
The important role of shipping: challenges ahead 203
Strong performance by the Chinese economy is expected to continue to fuel
this growth, in particular, of crude oil and iron ore shipments which reached an
all-time record of 2.3 billion and 590 million tonnes respectively in 2004. The
export of manufactured goods from China is also expected to push the volume of
containerized traffic transported on the trans-Pacific and Europe–Far East trade
routes in particular, to new heights. Containers transported on these trades, two of
the largest in the world, grew by 19 per cent to reach an unprecedented 30.1 mil-
lion twenty-foot equivalent units (TEUs) in 2004. The rate of growth was one of
the highest achieved since the advent of containerization.
The optimism for continuous growth is reflected in the orderbooks of ship-
yards which totalled 223.3 million deadweight tonnes as at October 2005. Over
the next three years, the tonnage on order is equivalent to the total number of new-
building deliveries in the past five years.
These huge orderbooks have generated concerns by many in the industry that
supply might grow ahead of demand and trigger another downturn in the business
cycle. Some have even gone as far as to say that the beginning of the downturn is
expected to take place by the middle of 2006. On the other hand, there are others
who believe that the burgeoning demand from China and other emerging
economies will continue to fuel demand expansion although the rate of growth
will continue at a slower pace.
Be it a hard or soft landing, it is without doubt that the cycle will run its course
and those who want to play in the game will have to juggle with the considera-
tions and risks involved and determine the best course ahead.
On top of the shipping cycle, the shipping industry also has to contend with a
host of other challenges which include dealing with navigational hazards, safety
issues, weather conditions, environmental issues and maritime security.

The issue of maritime security


Maritime security, in a sense, is not new to the maritime community who have had
to deal with issues related to piracy, blockades, wars and rumours of war from
time immemorial. However, the events that occurred on September 11 gave it a
much wider scope and a greater sense of importance.
Five years have since passed and many security-related measures have been
implemented. A key consideration in these issues is the element of cost. What are
the costs associated with maritime security and who will bear the burden?
The Straits of Malacca and Singapore form a key maritime passageway
between Europe, the Middle East, Africa and East Asia. It has been estimated that
the straits alone carry 60,000 vessels per year, one-third of the world’s trade and
half of all oil shipments carried by sea. The straits provide the shortest sea route
between the Middle East/Europe and the Asia Pacific. The next shortest alterna-
tive route adds on about three days of sea voyage and with it significant costs. It is
therefore in the keen interest of the international community that the straits be
always kept open, secure and safe. Any disruptive event can significantly upset
trade and incur great costs.
204 Tay Lim Heng
Singapore is very much aware of the vulnerabilities to the global trading system,
and the country’s economy, should a major incident occur and disrupt trade in a
major way. The global supply chain is only as secure as its weakest link, and
everyone will benefit if all parties do their part to secure their respective nodes
and links. The economic system cannot afford to have ports shut down and cargo
movement impeded in such a situation. Rather, a set of procedures is needed to
enable trade to keep flowing, and in thus doing, minimize the potential damage
from such an attack.
Some of the broad questions thrown up that deserve to be studied further are:
Will maritime security requirements dictate the setting in which world trade will
henceforth be carried out? Will it alter prevailing trading patterns and practices?
Will it create a new divide between the developed and developing world as it dis-
advantages those that do not have the means to implement them? And how will
developments in maritime security initiatives affect the countries in our region
which are so dependent on seaborne trade?

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

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

Abu Sayyaf Group 27, 62, 69, 70, 79, 80, Asian financial crisis 38–9, 111
84, 85 Asian Shipowners Forum 89
Accompanying Sea Security Teams 28 Association of Southeast Asian Nations
Aceh Province 6, 25, 65 (ASEAN) as security instrument 4–5
Achille Lauro 78, 79, 107, 154, 181 Australia: archipalegic sea lane,
air maritime joint patrols 30, 73–4 Indonesian proposals 122, 126–7; and
airforce modernization 39–40, 44–8 LRIT 151–2; natural gas reserves 44;
Al Qaeda 78, 79, 81, 86, 177, 183 and North Korean shipping 166–7
al-Faruq, Omar 79–80 Automatic Identification System 28,
Al-Nashiri, Abdulrahim Mohammed Abda 148–9
86
Albuquerque, Alfonso de 190 Bali bombings 5, 80, 182
Ambalat 42 Bali Concord II 11
anonymity of individuals 165–6 Bandung Workshop 55
Antartic treaty 11 baselines, international sea 101–2
archipelagic sealanes 103–4, 117–31; Batam meeting/agreement 16, 17
background 117; conclusions 129–31; bilateralism/multilateralism 139–42
historical development of legal regime Bin Laden, Osama 84
117–18; IMO procedures and functions Bowditch 192, 193
122–4; Indonesian Regulation No. 37 Bush, George W. 179
(2002) 125–7; outlook of archipelagic
states 34, 36, 50, 51, 103; partial Cambodia: conflict 52; flag of
system proposals 121–2, 124–5; convenience 166
Philippines archipelago 127–9; and catastrophic threats 138
regimes of transit passage 119–21; Chalk, Peter 84
UNCLOS regime 118–19 Chiang Kai-Shek 51
armed robbery see piracy China 110; coordinated patrols with
arms build-up dynamics 37–40 Indonesia 29; and current shipping
arms races 45–7 cycle 203; disputes 35–6; exclusive
ASEAN 10–12, 35, 191; and external economic zone 4–5; and hijacking 67;
powers 140–1; and regional security and hydrographic surveys 192; as
10, 55, 111, 191, 192, 193–4; security important economic power 21; Indian
community 10–11, 88, 184; and South Ocean policy 43; and Japan 8, 11; and
China Sea 49–50, 52, 53, 54, 55–9; and Malacca Strait 16–17, 104, 110;
territorial disputes 42–3, 45 military modernization, impact 39, 47;
USS Ashland 154 Ming dynasty voyages 189–90; naval
Asia-Pacific Economic Cooperation strength 53–4; and regional dialogue
(APEC) 10 10; and Russia, strategic partnership
Asian economies, combined 21 7–8; security concerns 9; sincere
Index 219
cooperation 110; South China Sea, and requirement 168–9, 172; and global
ASEAN negotiations 55–7, 59; South offshore economy 163–5; and
China Sea, as identity issue 36–7; international pressure 171; legal
South China Sea, use of force 52–3 perspective 167–70; and piracy 166;
chokepoints 82–3 security perspective 165–7, 170–2
Chong, Noel 68 forward operating sites 135–6
civil aviation hijackings 15 Fosler, G. 81
Cold War era 9–10, 35 Free Aceh Movement (GAM) 65, 69, 70,
USS Cole attack 27, 81, 83, 86, 180–1 86
colonialism 34–5 Freedom of Navigation programme 102
containerization 23–4, 195, 203 freedom of the sea 191
Convention on Maritime Search and
Rescue 99, 107–8 Gama, Vasco da 190
Convention for the Suppression of genuine links requirement 168–9, 172
Unlawful Acts against the Safety of Gerakan Aceh Merdeka (Free Aceh
Maritime Navigation 75, 89, 99, 105, Movement) 65, 69, 70, 86
107, 169–70 globalization 98, 194–5; and shipping
cooperative security locations 135–6, 138 industry 201–2
criminal syndicates 70 Great Coco Island 43
criminals, small-scale 69 Grotius, Hugius 191
Crisis Action Planning SMEE 05–03 29 Guatemala 168–9
cruise liners 154, 183–4 Gulf of Thailand disputes 42
Gunaratna, R. 83
da Gama, Vasco 190 Gwadar base 43
Daley, Matthew 80, 87
Davao City Port 85 harbour and anchorage attacks 65–6
Declaration on the Conduct of the Parties HARTS 28
in the South China Sea 53, 56, 57–8 Henry L. Marshall 169
deterrence 45–7, 185–6 hijacking 66–70, 183
Dewi Madrim 83 hot pursuit 8, 74, 105
disputes see territorial and maritime hub ports 26–7, 81
disputes hydrographic surveying 192
disruptive threats 138
diving operations 84 Iceland 167
drug trafficking 166–7 India: coordinated patrols with Indonesia
29; engagement policy 9; extra-
East Asian Summit 111 regional navy 47; and hydrographic
environmental protection 72, 152 surveys 192; as important economic
exclusive economic zones 50, 98, 102–3, power 21
192, 193; and piracy 104; regional Indian Ocean 190–1
cooperation 106; rights of visit 105 Indonesia 5, 6; archipelagic sea lanes,
‘Eyes in the Sky’ initiative 12, 30, 73–4 proposals for partial system 121–2,
124–5; archipelagic sea lanes,
Fargo, Admiral Thomas B. 87, 139 Regulation No. 37 (2002) 125–6;
Filipina Princess 85 claims in South China Sea 51–2; and
Financial Action Task Force 171 coordinated naval/air measures 11–12,
fishing boats 70 27–8; coordinated patrols with other
Five Powers Defence Agreement 40, 88–9, countries 29; disputes 42, 47; East-
137, 193 West route 126–7; as important
flags of convenience 162–73; and economic power 21; and kidnap for
anonymity of individuals 165–6; ransom 69; and Malacca Strait 16–17,
background 162–3; bilateral 87–8; maritime air joint patrols 30,
agreements 172; conclusion 173; flag 73–4; national identity 36; natural gas
state responsibilities 104; genuine links reserves 44; naval battle order trends
220 Index
41, 45; partnership with China 136; Kalayaan 51
piracy 65, 69, 70, 71, 72, 75, 87; post- Khallad 86
Soeharto era 15; poverty alleviation 28; kidnap-for-ransom incidents 62, 68–9
and regional security response 88–9; Koh, Tommy 89
Regulation No. 37 (2002) 125–6; Kumpulan Militan Malaysia 79
relations with US 139; and RMSI 136;
and security 63; terrorism 79–80; and LaFleur, Christopher 136
trilateral naval patrols 29–30, 73 law of the sea see UN Conventions on the
Information Sharing Centre 30–1 Law of the Sea
International Association of Maritime Aids Leifer, M. 97, 113
to Navigation and Lighthouse Liberation Tigers of Tamil Elam 79, 85
Authorities 149 Liechtenstein 168–9
International Convention for the Safety of Ligitan 42
Life at Sea 146–7, 149, 151–3 Limburg 80, 83, 127, 154, 181
International Maritime Bureau 25, 62 liquified natural gas carriers 22; and
International Maritime Organization 14, terrorism 27, 81
22, 73, 99, 149, 162, 195; archipalegic Lloyd’s List 22
sealanes, procedures/functions 122–4, Lloyd’s Market Association (Joint War
129–30; ISPS Code 27, 73, 99, 106–7; Committee) 75
LRIT 107; NAV Sub-Committee 121; Lombok Strait 22–3, 82
and Philippines archipelago 127–9 Long-range Identification and Tracking
international regimes 97–113; conclusions 107, 150–4, 156
112–13; ISPS Code 27, 73, 99, 106–7; low intensity maritime operations 89
maritime regimes 98–9; maritime low probability, high impact scenarios 15
zones 102–3; regional challenge 97–8;
safety 107–8; security see under McDougal, M. 172
security; status of Mahan, A.T. 191, 195
conventions/agreements 108–9; SUA main operating bases 135
Convention 75, 89, 99, 105, 107 Majelis Mujahidin Indonesia 88
International Ship and Port Facility Makassar Strait 22
Security Code 27, 73, 99, 106–7, Malacca Strait 5–6, 7, 14–18, 82;
146–8, 155, 157–8 coordinated naval/air patrols 11–12;
international terrorism: and piracy 5; Coordinated Patrols 29–30; council 44;
security questions 10–11 as high risk zone 75, 82, 87; historical
International Transport Federation 162 importance 189–90; hot pursuit patrols
Iraq 166 74; and international shipping 14,
iron ore carriers 22–3, 202 203–4; international/regional
irregular threats 138 institutions/agreements 17–18; kidnap-
for-ransome incidents 62, 68–9; literal
Jakarta meeting 17–18 and user states 16–17; maritime air
Japan 7, 110; activism 8–9; and China 8, joint patrols 30, 73–4; and maritime
11; extra-regional navy 47; as safety 15–18; outside contributions to
important economic power 21; and costs 104; piracy 87; regional
Malacca Strait 16–17, 104, 110; and coodinating centre 18; and regional
North Korean shipping 166, 192–3; security initiative 87–8; robberies at
and piracy 75; resources management sea 66; shipping densities 23 Fig.; size
37; sea lanes of communication 23; and terrorist attacks 27, 81–2; third
concerns 44 party assistance 8–9; traffic 23;
Java Sea 121 trilateral cooperation 8; and US
Jemaah Islamiyah 15, 27, 79, 82–3, 86, relations with states 139
185 Malaysia 5, 7; anti-piracy measures 28;
Joint War Committee (Lloyd’s Market claims in South China Sea 51, 53, 56,
Association) 75 58; and coordinated naval/air patrols
11–12; coordinated patrols with
Index 221
Indonesia/Thailand 29; disputes 36, 42, Pacific Business 171
47; and kidnap for ransom 69; and Palawan 85
major powers 9; and Malacca Strait Paracel Islands 37, 49, 51, 57
16–17, 87–8; naval battle order trends Pasir Gudang 67
40–1, 46; piracy 65, 70; and private Pattani Trough and Gulf of Thailand
armed escorts 74; and regional security dispute 42
response 89; relations with US 139; Pattani United Liberation Organization 86
and RMSI 136; and security 64; Pedra Branca 36
terrorism 79, 82; and trilateral naval Penrider 69
patrols 29–30, 73 Petro Ranger 67–8
Malaysian Maritime Enforcement Agency Philippines: and archipelagic principle 51;
45–6 archipelago 127–9; claims in South
Manila Declaration 55 China Sea 51, 52–3, 54, 56, 57, 58, 59;
marine environment 100–1 disputes 35–6; naval battle order trends
maritime air joint patrols 30, 73–4 41, 45; piracy 70; terrorism 27, 80, 82
maritime certificate fraud 67 Phillips Channel 82–3
maritime disputes see territorial and piracy 5–6, 25–6, 62–75; background
maritime disputes 62–3; causes 71; criminal syndicates
Maritime Environment Protection 70; definition 5–6, 64, 107; and
Committee 152 environmental disaster 72; equipment
maritime industry see shipping industry 70; and flags of convenience 166;
maritime regimes 98–9 harbour and anchorage attacks 65–6;
maritime safety 107–8 high risk zones 75; hijacking 66–8;
Maritime Security Committee 151–2 impact 72; incidence/causes 5–6, 65,
Maritime Silk Road 190 83; and international terrorism 5,
maritime terrorism see terrorism 14–18, 26; and jurisdictional gray
maritime zones 102–3 zones 88; kidnap-for-ransom incidents
Ming Dynasty 189, 190 62, 68–9; in Malacca/Singapore Straits
Mischief Reef incident 52–3, 57 25–6; national countermeasures 27–8;
Mitropoulos, E. 84, 87 private armed escorts 74;
Moro Islamic Liberation Front 70, 85–6 recommendations 74–5; response 72–4;
multilateralism 139–42 robberies at sea 66; securitization
Myanmar 10, 43 63–4; small-scale criminals 69;
sophistication 83–4; targets 71; in
Nagasaki Spirit 72 territorial waters 64–5; and terrorism
national identity 36 62, 70, 74, 80, 83–4, 184–5; and
nationality of ships, trade in 164–5 UNCLOS 104
NATO 9, 12 Port Kelang 17
natural gas reserves 44 Port Klang 23–4
naval power: battle order trends 40–2; Portugal 190–1
historical projection 190–1; Powell, Colin 138
modernization 39–40, 44–8 Prescott, J.R.V. 102
navigational rights/freedoms 103–4 Proliferation Security Initiative 105, 172
North Borneo 47 Protocol and Fixed Platforms 107
North Korea 164, 166–7 Pulau Batu Putih 36
Norway: and Iceland 167; shipping in Pulau Tekong 83
region 22–3, 24 Table, 25 Table
Nottebohn case 168 Raja Sulaiman Movement 86
Raleigh, Sir Walter 190
Ocean Blessing 72 Ramos, Fidel 52
offshore services 163–4 regional cooperation 105–6
oil transportation 22, 43, 82, 139, 202 Regional Cooperation Agreement on
Organization for Economic Co-operation Combating Piracy and Armed Robbery
and Development 165, 170–1, 173 against Ships in Asia 30–1, 110, 111
222 Index
Regional Maritime Security Initiative 150–4, 156; multilateral 9–12, 16;
87–8, 110, 112, 134–42; background national 7; and national sovereignty 6;
134–5; conclusions 142; instruments operational factors 111–12; political
135–7; interoperability 136–7; and US frameworks 111; regional coodination
bilateralism/multilateralism 139–42; centre 18; regionalization 193–4; and
and US grand strategy 137–8; and US safety 15–18; security threats 4–5;
relations with states in region 139; and SUA Convention 75, 89, 99, 105, 107;
US security concerns 138–9 and territorial disputes 43; and
Regional Maritime Surveillance and territorial and maritime disputes 44–7;
Safety Regime 111–12 threats 4–5, 203–4; UNCLOS see UN
regional sea lanes see sea lanes Convention on the Law of the Sea
resources management 37, 42–4, 45 Selden, John 191
Roach, T.A. 102 Sembayang Wharf 82–3
robberies at sea 66 September 11 attacks 74, 78, 80, 82, 86,
Rumsfeld, Donald 134 154, 155–6, 170, 177–8; as large-scale
Russia and China, strategic partnership 7–8 single act 181–2
Serbia 169
Sabdullah, Nadzmi 85 Shambaugh, D. 53
safety 107–8 shared resource extraction agreements 11
Safety of Life at Sea Convention 99 Ship Security Alert System 149–50
safety, and security 15–18 shipping industry 201–4; business cycles
satellite-based tracking of ships 146–59; 202; current cycle 202–3; and
Automatic Identification System 28, globalization 201–2; and security
148–9; background 146; conclusion 203–4
158–9; enforcement 156–8; ships, trade in nationality of 164–5
International Ship and Port Facility Singapore: as container port 24; and
Security Code 27, 73, 99, 106–7, coordinated naval/air patrols 11–12;
146–8, 155, 157–8; Long-range coordinated patrols with Indonesia 29;
Identification and Tracking 107, dispute with Malaysia 36; fighter
150–4, 156; Ship Security Alert attack planes 40; and Malacca Strait
System 149–50 16–17, 203–4; maritime air joint
HMS Scott 192 patrols 30, 73–4; maritime security
Scovazzi, T. 101–2 measures 28; naval battle order trends
sea: baselines 101–2; freedom of 191; as 40, 46; and piracy 66, 67, 68, 69, 72;
global asset 98 relations with US 136, 139; and
sea lanes 21–32; background 21, 31–2; security 63, 139; and shipping
bilateral security countermeasures 29; industry 201–2; ships 22–3, 24
and globalization 98, 194–6; historical Figure, 25 Table; Strategic Framework
perspective 189–91; major 22–5; Agreement with US 136; and
multilateral security countermeasures terrorism 27, 79; and trilateral naval
29–31; national security patrols 29–30, 73
countermeasures 27–8; piracy see Singapore Strait 15, 82–3
piracy; and terrorism 26–7; US Sipadan 42, 85
concerns 138–9 Six Degrees Channel 29
SEATO 35 Sosun 166
security 3–12, 106–7, 109–12; and arms South China Sea 4–5, 49–59; background
races 45–7; background 3–4; bilateral 49–50, 58–9; China-ASEAN
7–9; common interests 109–10; negotiations 55–7, 57–8; Declaration
European experience 9–10, 11; extra- on the Conduct of the Parties 53, 56,
regional powers 110; and flags of 57–8; as identity issue for China 36–7;
convenience 165–7; flags of and law of the sea 50–1; overlapping
convenience 165–7, 170–2; ISPS Code claims 51; resources management
27, 73, 99, 106–7; Long-range issues 37; shared resource extraction
Identification and Tracking 107, agreements 11; strategic conditions
Index 223
53–4; strategic/diplomatic status quo Timor Sea Joint Petroleum Development
49–50; use of force 52–3 Area 85
South Korea, and Malacca Strait 17 Tonga 166, 171
sovereignty 6, 16, 36, 191–2 Tonnesson, S. 58
Spain 190 transit passage regimes 119–21
Spencer, Baldwin 163 Treaty of Amity and Cooperation 55
Spratly Islands 10, 35–6, 37, 49–53, 55–6, tsunami 6, 25, 65, 86
59, 192 tugboat attacks 68, 70, 83–4
Sri Lanka 85
straight baselines 102 UN Conference on Trade and
Strait of Singapore 15 Development 155
STRAITREP 22 UN Convention on Conditions for
Sunda Strait 23, 82 Registration of Ships 168–9
SuperFerry 14, 80, 85, 86, 154 UN Convention on the Law of the Sea 4,
17, 36, 50–1, 56, 89, 99–106, 191–3;
Taiwan 51 and archipalegic sealanes 118–21,
Tamil Tigers 79, 85 129–31; and flags of Convenience 104,
Tan, Dr Tony 81–2 167, 168, 170; hot pursuit 105; as
Tanjong Pelepas Port 17, 23–4, 64 international regime 98–9; intervention
Tanjung Priok 24 rights 167; limitations 100–1; and
Tengku Ishak Daud 86 marine environment 100–1;
territorial and maritime disputes 34–47; navigational rights/freedoms 103–4;
arms build-up dynamics 37–40; and and Philippines archipelago 127–9; and
arms races 45–7; and deterrence 45–7; piracy 104; regional cooperation
disputes in region 35–6, 42–4; 105–6; rights of visit 105; and
escalation 44–5; issues 34–5; national sovereign rights 191–2; and SSAS 150;
identity 36; and naval battle order trends territorial sea baselines 101–2; and
40–2; and naval/airforce modernization transit passage regimes 119–21
39–40, 44–8; and resources underwater operations 84
management 37, 42–4, 45; and security United States: archipalegic sea lane,
44–7; sovereignty concerns 36 Indonesian proposals/Regulation 122,
territorial sea baselines 101–2 125–7; bilateral agreements 172;
terrorism 14–15, 18, 78–90, 154–6, bilateral treaties 7, 110;
177–87; background 78, 177; concept bilateralism/multilateralism 139–42;
179–80; denunciation of 180–1; and combined Asian economies 21;
deterrence 186; expressive 182; focus coordinated patrols with Indonesia 29;
177–8; large-scale single act 181–2; and dispute in South China Sea 54, 55;
maritime vulnerabilities 26–7, 78–83, extra-regional navy 47; grand strategy
182–4; moral denunciation 186–7; in SE Asia 137–8; and Indonesia 7; and
national countermeasures 27–8; and naval/air forces modernization 40;
naval/airforces modernization 39; and pressure 8–9; regional security
piracy 62, 70, 80, 83–4, 184–5; concerns 138–9; relations with states in
prevention measures enforcement region 139; sea basing of military
156–8; preventive measures 186; equipment 137–8; Strategic Framework
regional response 87; sophistication Agreement with Singapore 136, see
83–4; and Southeast Asia 82–3; terrorist also Regional Maritime Security
groups 84–7; and violence 178–9 Initiative
Thailand 9, 46; and coordinated naval/air US Energy Information Administration 82
patrols 11–12, 73–4; coordinated
patrols with Malaysia 29; disputes 36, Valencia, M. 137
42; and fishing 63; and Malacca Strait VHF band 148–9
17; maritime air joint patrols 30; Vienna Convention Against Illicit Traffic
relations with US 139; and terrorism in Narcotic Drugs and Psychotropic
86 Substances 167
224 Index
Vietnam: and archipelagic principle 51; Xiangyang Hong 193
claims in South China Sea 51, 52, 53,
54, 57, 58, 59; disputes 35–6, 42; naval Yangon port 43
battle order trends 41–2 Yellow Sea 192

Wawasan Nusantara 36 Zheng, Admiral 189


weapons of mass destruction 105, 135 Zhou En-Lai 51
Winner 166