Associate Professor, Faculty of Law, National University of Singapore

　

　

 The Straits of Malacca and Singapore are choke points on a vitally import trade route. The international community has a great interest in ensuring the safety and security of ships exercising rights of passage through them. Piracy and armed robbery against ships have been a threat to security in the straits for many years, and continue to be a serious problem. The threat of maritime terrorism after September 11, 2001 makes security in the straits an even more important issue.

 The most important global conventions to help deal with the threat of maritime security in the straits are the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (1988 SUA Convention) and its Protocol. If all of the States in the region ratified the 1998 SUA Convention and Protocol, these global instruments would be useful tools in combating maritime terrorism. The Legal Committee of the International Maritime Organization (IMO) is currently considering proposals to amend the 1988 SUA Convention and Protocol. The proposed amendments are intended to update the convention in light of the threat of maritime terrorism. Once the proposed amendments are finalized and formally adopted as new protocols, all States in the region should become parties to the new protocols.

 The terrorist threat since September 11, 2001 has resulted in the IMO incorporating maritime security into maritime safety. The 2002 amendments to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), which will enter into force on 1 July 2004, will significantly increase the security of ships and ports from acts of maritime terrorism. These amendments should help combat acts of piracy and armed robbery against ships in the Straits of Malacca and Singapore. They should also make it more difficult for pirates or terrorists to hijack ships.

 The most vulnerable links in the global maritime security chain are the narrow choke points on major international shipping routes such as the Straits of Malacca and Singapore. The best option for enhancing maritime security in the Straits of Malacca and Singapore is for the major user States and States bordering the straits to enter into cooperative burden-sharing arrangements whereby major user States assist the States bordering the straits in meeting their obligations to enhance security for ships passing through their waters on international shipping routes. As the major beneficiaries of the special passage regimes in the United Nations Convention on the Law of the Sea, 1982, it is only fair that major user States share more of the burdens. If a pragmatic problem-solving approach is taken by both sides, it should be possible to enhance maritime security in the straits without undermining the sovereignty of the States bordering the straits.

　

　

 This paper is organized into four parts. First, I will examine the issue of maritime security in the Straits of Malacca and Singapore. This will include a brief analysis of piracy and armed robbery against ships in the straits, and the threat of maritime terrorism in the straits. Second, I will review the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (1988 SUA Convention) and argue that it could be a useful tool to combat threats to maritime security in the straits. Third, I will outline the actions taken after September 11 , 2001 by the International Maritime Organization (IMO) to enhance maritime security through amendments to the International Convention for the Safety of Life at Sea, 1974 (SOLAS). I will also examine the possible impact of such actions on maritime security in the Straits of Malacca and Singapore. Fourth, I will propose that the threat of maritime terrorism presents States bordering the straits and user States with the opportunity to enter into cooperative arrangements to enhance maritime security in the Straits of Malacca and Singapore. I will argue that such arrangements could be made under Article 43 of the 1982 United Nations Convention on the Law of the Sea (1982 LOS Convention) in such a manner that they would be consistent with the territorial sovereignty of the three States bordering the straits.

　

 Piracy and armed robbery against ships in Southeast Asia has been a very serious problem for the past several years. The problem is particularly acute in Indonesian waters, including the Indonesian side of the Malacca Strait. Piracy attacks pose a significant threat to the safety of maritime navigation in Southeast Asia because the Straits of Malacca and Singapore serve as a vitally important route for maritime transport between the Indian Ocean and the South China Sea.

　

 In its Annual Report for 2002 the International Maritime Bureau (IMB) reported that Indonesia recorded the highest number of attacks in the world in 2002, with 103 reported incidents. This accounted for more than one-quarter of the world's pirate attacks in 2002. There were also 16 reported attacks in the Malacca Strait and 5 reported attacks in the Singapore Strait in 2002. Since most of the attacks in these two straits are likely to have also taken place on the Indonesia side of the straits, this means that the percentage of attacks in waters under the sovereignty of Indonesia is actually closer to one-third of the world's piracy attacks, making it easily the highest risk area in the world. This trend continued in the first six months of 2003, when the IMB reported 64 attacks in Indonesia and 15 in the Malacca Strait, for a total of 79 attacks. Assuming that most of the attacks in the Malacca Strait were in Indonesia's territorial sea, Indonesia again accounted for one-third of the world's piracy attacks.

 Other disturbing trends can also be discerned from the IMB reports for the period from 1 January 2002 to 30 June 2003.

 First, in most of the attacks in Indonesia the attackers were armed with guns, knives or other weapons. Of the 68 attacks world-wide in 2002 in which the attackers were reported to have been armed with guns, 11 were in Indonesia, 12 were in the Malacca Strait, and 4 were in Malaysia. Of the 136 attacks in 2002 in which the attackers were reported to be armed with knives, 49 were in Indonesia. In 14 other attacks in Indonesia in 2002 the attackers were reported to be armed with other weapons. The figures are similar for the first six months of 2003. Of the 55 attacks world-wide in which the attackers were reported to have been armed with guns, 19 were in Indonesia and 9 were in the Malacca Strait. Of the 80 attacks world-wide in which the attackers were reported to have been armed with knives, 25 were in Indonesia and 2 were in the Malacca Strait.

 Second, in many of the attacks in Indonesia crew members have been taken hostage, threatened, injured or killed. For example, of the total of 191 crew members who were reported to have been taken hostage world-wide in 2002, 77 were from ships attacked in Indonesia and 33 were from ships attacked in the Malacca Strait, for a total of 57%. Of the 193 crew members who were reported to have been taken hostage in the first six months of 2003, 69 were from ships attacked in Indonesia and 6 were from ships attacked in the Malacca Strait.

 Third, in the attacks in Indonesia and the Malacca Strait there has been a significant increase in the number of vessels hijacked, especially barges. Of the total of 25 vessels that were hijacked in 2002, 7 of the attacks were in Indonesia and 9 were in the Malacca Strait. Of the 9 vessels hijacked in the first six months of 2003, 4 of the attacks were in Indonesia and 2 in the Malacca Strait.

 On the positive side, one point can be noted. The number of attacks in the Malacca Strait and Malaysia dropped in 2002 as a result of vigilant and constant patrols by the Malaysian authorities in their waters and on their side of the Strait.

 On the negative side, recent IMB press releases suggest a possible new trend in politically-motivated piracy in the region. The IMB Piracy Reporting Centre issued a press release on 2 September 2003 stating that gangs of heavily armed pirates using fishing and speed boats have been targeting small oil tankers in the Malacca Strait. The IMB reported that in late July 2003, there were three attempted boardings in less than a week off the Sumatra coast in the Malacca Straits. Pirates fired automatic weapons at an LPG tanker, a gas tanker and an oil tanker.¹

 Since September 11, 2001 there has been a fear in the region that a link might develop between piracy and maritime terrorism in the Malacca Strait. Even if a link is not established, there is recognition that if tankers exercising passage through the narrow choke points in the Malacca Strait can be easily boarded by pirates, they can also be boarded by terrorists.

 Japan, China and South Korea import more than 80 percent of their oil from the Gulf, and most of this oil is carried on tankers through the Straits of Malacca and Singapore. In addition, it has been reported that two-thirds of the world's liquefied natural gas (LNG) trade passes through the Malacca Strait.

 Some analysts have speculated that just as terrorists used planeloads of fuel to crash into the World Trade Center and the Pentagon, tankers carrying large cargos of chemicals or inflammable petroleum could be hijacked and used in terrorist attacks.² If such an attack took place in the Strait of Malacca or another major channel for international shipping, trade could be seriously disrupted, and the world's economy could be seriously damaged.

　

 Enhancing maritime security in the Straits of Malacca and Singapore is particularly difficult because of the principles of international law of the sea governing jurisdiction over ships in the territorial sea. Most of the attacks on ships in the Straits of Malacca and Singapore are not piracy as that term is defined in international law. Attacks on ships on the high seas or in an exclusive economic zone may be classified as piracy, and every State has the right to seize the pirate ship and arrest the pirates. However, the rules on piracy do not apply within the territorial sea of any State.

 The lower half of the Malacca Strait is within the territorial sea of Malaysia and Indonesia, and the Singapore Strait is within the territorial sea of Singapore and Indonesia. If ships exercising transit passage are attacked in the Malacca Strait within the territorial sea of Indonesia, the attackers have committed offences under Indonesian law, and Indonesia has the right to arrest the perpetrators if they are on ships within its territorial sea. Similarly if persons aboard ships engage in terrorist acts in the Malacca Strait within the territorial sea of Indonesia, Indonesia has the right to exercise police power against the terrorists. No other State can exercise police powers in such circumstances unless it has the express authorization or consent of the State bordering the strait. These jurisdictional rules are sometimes a serious impediment to suppressing terrorist acts against the safety of maritime navigation in the Straits of Malacca and Singapore.

 There are two global conventions which could be of use in combating attacks on ships and oil installations in the Straits of Malacca and Singapore. They are the 1988 SUA Convention³ and its Protocol⁴ The 1988 SUA Convention and Protocol were adopted in Rome on 10 March 1988 and they entered into force on 1 March 1992. The IMO serves as the secretariat and depository for the 1988 SUA Convention and Protocol.

 The 1988 SUA Convention and Protocol follow the scheme that was first established in the Convention for the Suppression of Unlawful Seizure of Aircraft,⁵ The Hague, 16 December 1970 (1970 Hijacking Convention). The scheme of the 1970 Hijacking Convention has been followed in several other conventions that are commonly referred to as the "terrorist conventions"⁶. The scheme in all of the conventions is to establish "universal jurisdiction" among States parties to the Convention.

 The 1988 SUA Convention applies to the following acts that endanger the safety of international maritime navigation:

 The 1988 SUA Protocol applies to the offences described in the 1988 SUA Convention when committed in relation to a "fixed platform", defined as an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.

 States parties have an obligation to make the above offences a crime under their laws when the alleged offence takes place in their territory. In addition, all States parties must establish jurisdiction over the offence when the alleged offender is "present in their territory", even though it has no other links to the alleged offence.

 States parties also have an obligation to take alleged offenders into custody if they enter their territory, and to either extradite them to another State party that has jurisdiction, or to turn the case over to their own authorities for prosecution in their courts. This is generally referred to as the obligation to "extradite or prosecute". The obligation of a State to arrest alleged offenders who enter their territory applies no matter where the offence took place.

 If all the three States bordering the straits and other States in the region were parties to the 1 988 SUA Convention and Protocol, persons who committed acts against the safety of international maritime navigation would be subject to arrest and prosecution if they entered the territory of any of the States parties. By making such persons "international criminals" among States parties, it would practically ensure that they had nowhere to hide.

 As of 30 August 2003, 92 States are parties to the 1988 SUA Convention and 84 States are parties to the 1988 SUA Protocol. Surprisingly, even though Southeast Asia is one of the regions with the highest incidents of piracy and armed robbery against ships, the only ASEAN country that is a party to the 1988 SUA Convention and Protocol is Viet Nam. Hopefully the three States bordering the straits will heed the call of the ASEAN Regional Forum in 2003 and ratify the 1998 SUA Convention and its Protocol.⁷

　

　

 One of the initiatives of the United States after September 11, 2001 in response to the threat of maritime terrorism was to propose amendments to the 1988 SUA Convention and Protocol in the form of new draft protocols. The IMO Legal Committee has been considering the new draft protocols since 2002. A Correspondence Group of the IMO Legal Committee chaired by the United States recently submitted a report and a proposed draft Protocol for consideration at the IMO Legal Committee meeting in October 2003.⁸

 The amendments proposed by the United States include the addition of 7 new offences into article 3 of the 1988 SUA Convention, four of which are concerned with activities taking place on the ship or directed toward the ship that involve a terrorist purpose. The new offences in the prospective protocols are intended to update the provisions of the 1988 SUA Convention and Protocol in light of the new threat of maritime terrorism after September 11, 2001.

 The amendments proposed by the United States also include new provisions on boarding and search of suspected vessels outside any State's territorial sovereignty that are intended to give States a new weapon in their fight against international terrorism. The new boarding provisions will apply in ocean space seaward of any State's territorial sea, that is, in any State's exclusive economic zone or on the high seas. The proposed amendments are based upon the principle that authorization of the flag State is necessary before suspect ships can be boarded and searched. The sticking points are how such authorization is to be obtained (in advance or ad hoc), what action can be taken in situations where the flag State does not respond to a request to board within 48 hours, and what safeguards should be included to limit abuse of the right to board and search.

 The new proposed boarding provisions are the most controversial because they will take the 1988 SUA Convention and Protocol to a new level. The 1988 SUA Convention and Protocol give States no right to board or search vessels. The arrest of alleged offenders in the 1988 SUA Convention is dependent upon them entering the territory (or presumably the territorial sea) of a State party. The new proposed provisions on boarding will allow naval forces to act against vessels in international waters that are suspected of carrying terrorists, weapons of mass destruction, etc. If agreement can be reached on the safeguards to prevent abuse by States, the proposed boarding provisions will provide a very useful weapon against the threat of maritime terrorism.

　

 Following the events of September 11, the IMO undertook a thorough review of measures to combat acts of violence and crime at sea. At the 22^nd Assembly meeting in November 2001, it was agreed to hold a Diplomatic Conference on Maritime Security in December 2002 to adopt new regulations to enhance ship and port security. The Maritime Safety Committee and other IMO bodies worked for more than a year to prepare for the Conference.

 The Conference was held from 9 to 13 December 2002. The Conference adopted 11 resolutions containing a series of measures to strengthen maritime security and prevent and suppress acts of terrorism against international shipping. The new provisions on maritime security were adopted by the IMO in December 2002 as amendments to Annexes to the International Convention for the Safety of Life at Sea, 1974 (SOLAS). Chapter V and Chapter XI of SOLAS have been amended and a new Chapter XI-2 entitled Special Measures to Enhance Maritime Security has been added. A new International Ship and Port Facility Code (ISPS Code) is annexed to Chapter XI-2. The ISPS Code contains detailed mandatory security-related requirements for governments, port authorities and shipping companies. It also contains a series of non-mandatory guidelines on how to meet the mandatory security requirements. The ISPS Code will enter into force on 1 July 2004 under the tacit acceptance procedure followed in many IMO conventions.⁹

 Modifications to SOLAS Chapter V (Safety of Navigation) contain a new timetable for the fitting of Automatic Information Systems (AIS). Ships, other than passenger ships and tankers, of 300 gross tonnage and upwards but less than 50,000 gross tonnage, will be required to fit AIS not later than the first safety equipment survey after 1 July 2004 or by 31 December 2004, whichever occurs earlier. Ships fitted with AIS shall maintain AIS in operation at all times except where international agreements, rules or standards provide for the protection of navigational information."

 The existing SOLAS Chapter XI (Special measures to enhance maritime safety) has been re-numbered as Chapter XI-1. Regulation XI-1/3 is modified to require ships' identification numbers to be permanently marked in a visible place either on the ship's hull or superstructure. Passenger ships should carry the marking on a horizontal surface visible from the air. Ships should also be marked with their ID numbers internally.

 A new regulation XI-115 requires ships to be issued with a Continuous Synopsis Record (CSR) which is intended to provide an on-board record of the history of the ship. The CSR must contain information such as the name of the ship and of the State whose flag the ship is entitled to fly, the date on which the ship was registered with that State, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address. Any changes shall be recorded in the CSR so as to provide updated and current information together with the history of the changes.

 Regulation XI-2/5 requires all ships to be provided with a ship security alert system, according to a strict timetable that will see most vessels fitted by 2004 and the remainder by 2006. When activated the ship security alert system shall initiate and transmit a ship-to-shore security alert to a competent authority designated by the Administration, identifying the ship, its location and indicating that the security of the ship is under threat or it has been compromised. The system will not raise any alarm on-board the ship. The ship security alert system shall be capable of being activated from the navigation bridge and in at least one other location.

 The main measures in the ISPS Code relate to ship security and port security. Under the terms of the Code, shipping companies will be required to designate a Company Security Officer for the Company and a Ship Security Officer for each of its ships. The Company Security Officer's responsibilities include ensuring that a Ship Security Assessment is properly carried out, that Ship Security Plans are prepared and submitted for approval, and thereafter placed on board each ship. Ships will have to carry an International Ship Security Certificate indicating that they comply with the requirements of SOLAS chapter XI-2 and part A of the ISPS Code. When a ship is at a port or is proceeding to a port of Contracting Government, the Contracting Government has the right, under the provisions of regulation XI-2/9, to exercise various control and compliance measures with respect to that ship.

 With respect to port security, States must ensure the completion of a Port Facility Security Assessment for each port facility within its territory that serves ships engaged on international voyages. The Port Facility Security Assessment is fundamentally a risk analysis of all aspects of a port facility's operation in order to determine which parts of it are more susceptible, and/or more likely, to be the subject of attack.

 Many of the above measures will assist in combating maritime terrorism in the Straits of Malacca and Singapore. They will also assist in combating piracy and armed robbery against ships in at least three ways. First, the provisions on ship security should assist in limiting attacks on moving vessels. Second, the provisions on port security should assist in limiting attacks on ships in port and at anchor. Third, the provisions on the ship identification number and the Continuous Synopsis Record should make it much more difficult to hijack ships and then re-register them.

 The major gap in the 2002 SOLAS amendments is that they do not include any specific measures to enhance maritime security in major choke points such as the Straits of Malacca and Singapore. Such choke points are arguably the weakest link in the security chain. For this reason, it may be necessary for States bordering the straits to enter into cooperative arrangements with the major user States to enhance security in the Straits of Malacca and Singapore.