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SECURITY ENVIRONMENT OF THE SEA LANES
INTRODUCTION
This review will consider the current status of the security environment of the sea lanes in the Asia-Pacific region. Given the greater seriousness of the current piracy problems in the region, this will be a prime focus (along with related terrorism) of our review and data. But we will also consider more briefly the other “law and order at sea” issues of drugs/smuggling and illegal migration. In reviewing this current status we will be alert to the need and potential for expanded regional maritime cooperation by navies and maritime law enforcement agencies.
 
  This review of the current security environment of the sea lanes highlights the increasing recognition of the broad scope for maritime cooperation among the states of the Asia-Pacific region. There has been considerable discussion and various proposals for future cooperative measures in the areas of maritime defense, confidence and security-building measures, and even the maritime environment. To date, however, less thought has been given to the potential for maritime cooperation in dealing with issues that might be termed “law and order at sea” - particularly, piracy, terrorism, drugs/smuggling, and illegal migration. In a way, it is perhaps not surprising that these problems - typically handled by a variety of domestic law enforcement agencies (rather than naval forces) and where such international cooperation that might exist tends to be bilateral and closely-held-have attracted less attention as a potential focus of regional maritime cooperation measuring security of the sea lanes. Our analysis below of the nature of these problems suggests that they are serious enough to affect maritime (and domestic) security, and that there would be value in regional cooperation to address them, perhaps within the broader scope of regional or sub-regional maritime cooperation agreements.
PIRACY
Our review of the growing threat of piracy to the security environment of the sea lanes in the Asia-Pacific region will proceed in three parts. First, we will examine the issue of how piracy is defined, since an understanding of this issue is necessary to interpret current data and recent trends in piracy. Second, we will review both the current status of the piracy problem in the region and the trends in piracy as this problem has grown and developed over the past decade. Finally, we will consider potential measures to combat piracy, including the lessons of recent experience and the potential for future actions and cooperation in the region.
PIRACY DEFINITION
Piracy is defined in Article 101 of the 1982 U.N. Convention on the Law of the Sea (UNCLOS III, which entered into force in November 1994) as illegal acts of violence or detention against a ship (or aircraft) “on the high seas or in other areas beyond the jurisdiction of any state.”1 Under international law, all states have the right to arrest pirates on the high seas and to punish them for acts of piracy. Under Article 58(2) of UNCLOS III, these rules apply to other areas outside of territorial waters (for example, in the Exclusive Economic Zone), but do not apply when piracy occurs within the territorial sovereignty of a state. (This of course, is suggested by the very restrictive UNCLOS III definition of piracy-which refers to “high seas” and other areas beyond state jurisdiction.) UNCLOS III also recognized the existence of the archipelagic waters (those waters within straight baselines drawn to connect the outermost island in the archipelago). Archipelagic waters are also legally within the territorial sovereignty of the archipelagic state and, hence, not subject to legal rules regarding piracy on the high seas. UNCLOS III also recognizes responsibilities of states that border international straits--but where those straits lie within territorial sea limits of a state or states, only the sovereign state can exercise jurisdiction in its respective area.
 
  To realistically address problems of piracy in the Asia-Pacific region, we need to go beyond the narrow (“high seas”) legal definition of UNCLOS III to something more like the definition in the January 2001 Annual Report on Piracy and Armed Robbery Against Ships of the International Maritime Bureau: “[Piracy is] any act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of the act.”2 This broader definition obviously includes ships in territorial waters or even at anchor or inport.
 
  Understanding these definitions--both legal and realistic--is important because, whatever the reality of the location where an act of piracy occurs, potential cooperation among nations to address that piracy must be conditioned by maritime legal definitions. In the Asia-Pacific region, there are several implications of these legal definitions:
 
- Almost all of the acts of piracy in or near the “international” Strait of Malacca and the Straits of Singapore occur in waters that are within the territorial sovereignty (i.e., territorial waters or archipelagic waters) of one of the three coastal states--Malaysia, Indonesia, or Singapore.
- Acts of piracy in the vast Indonesian archipelagic waters are within the territorial sovereignty of Indonesia.
 
- Maritime areas of disputed sovereignty--especially, the large South China Sea area--further complicate definition of legal jurisdiction over acts of piracy.
 
  These legal definitions and geographic facts mean that under universally accepted international law, “law enforcement officials may not act to enforce their laws in areas within the territorial sovereignty of another state. Therefore, the naval vessels or marine police from one state may not enter the internal waters, territorial waters, or archipelagic waters of another state to patrol for pirates or to arrest persons for acts of piracy, regardless of where such acts took place.”3 (Nor does the right of innocent passage through territorial waters include the right to exercise police powers.) In light of these legal constraints, the need is clear for bilateral and multilateral cooperation to effectively deal with piracy.
 
  Our focus in this discussion will be on the most common current form of piracy in the Asia-Pacific region, piracy against modern shipping. There exist other categories of piracy, such as “politically-motivated piracy” (or terrorism at sea), such as the hijacking of the cruise ship Achille Lauro in the Mediterranean; “piratic acts of violence against refugees”--which were notorious in the 1970s and 1980s against hundreds of thousands of refugees fleeing Vietnam in boats, particularly in the Gulf of Thailand; and “yacht piracy”, not unknown in Hong Kong in recent years.4








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