Sharing the Costs of Enhancing Safety and Protecting the Environment of the Straits of Malacca and Singapore: Some Basic Ideas
Mohd Nizam Basiron
Maritime Institute of Malaysia
Introduction - Burden Sharing and the Straits
It is an often repeated fact that to date only Japan has made contributions towards safety of navigation in the Straits. These contributions include funds for the establishment of the Straits of Malacca Revolving Fund and for specific projects such as preparing of common datum charts, dredging of the Straits of Singapore, and conducting hydrographic surveys. The contributions which Japan made could be described as 'bilateral' is the sense that it involved Japan on the one side and the littoral States, either as a group or individually on the other. Given the call to expand the definition of the term 'user' to include the shipping community, insurance brokers and cargo owners the present arrangement may be found to be lacking in scope and application. It is very likely that as the users make more contributions to keeping the Straits safe and secure, they would also demand a bigger say in how the contributions should be used and indirectly how the Straits should be managed, thus the maxim of "user-pays, user-says". This could impinge further on the already limited control the littoral States have over the Straits (Hamzah and Basiron 1996) and may run contrary to the sacrosanct notion of littoral States' sovereignty over the Straits of Malacca and Singapore. What then? This paper outlines some basic ideas for a new-look burden sharing arrangement in the Straits by examining recent developments from the two meetings organised by the littoral States and supported by the IMO on the Straits, analysing the roles of the key players and identifying some principles which should underline future co-operation in the Straits.
Changing Roles of Key Actors
The roles of the littoral States as the custodians of the Straits of Malacca and Singapore are well defined in international law. Indonesia, Malaysia and Singapore have provided aids to navigation; established traffics separation schemes; established oil spill control plans: and recently co-operated in ensuring security in the Straits. The Tripartite Technical Experts Group on Navigational Safety and Environmental Protection (TTEG) has provided the over-arching technical support and decision making body for many of these activities. It is envisaged that apart the TTEG would continue to play this role in any future co-operative or burden sharing framework in the Straits. The TTEG has the mandate from all the littoral States' governments, a fact reinforced in the Jakarta Statement on the Straits of Malacca and Singapore which called for the work of the TTEG to be "supported and encouraged." On the other hand, it is also possible that after thirty-two years the role of the TTEG may need to be redefined or even broadened should the nature of co-operation in the Straits expand to include non-navigational safety matters. The wealth of institutional history and experience in co-operation which the TTEG have would serve future cooperative measures in the Straits well.
It is fair to suggest that should there be an increase in the number of contributors and amount of contribution to navigational safety in the Straits, there would also be a corresponding increase in the 'influence' or 'say' of the users in how the contribution should be used. This is a fact recognised by the littoral States and is evident in the proposed establishment of a littoral States - users forum agreed upon at the Kuala Lumpur Meeting where views could be exchanged and proposals for co-operative activities discussed. There is a possibility however, that such forums could be cumbersome, resulting in more talk than action. One way to address this is to establish an independent users forum where ideas and proposals could be discussed and vetted before being presented at the joint littoral States - users meeting. There is already a 'forum' where Japanese users could express their views and channel their inputs in the form of the Malacca Straits Council. A reconstituted Malacca Straits Council comprising all users could provide a useful venue for initial ideas to be considered. The users' forum might also include academia which could provide impartial and scholarly views on how the Straits and its many elements could be managed. This arrangement would provide users with an opportunity to consolidate views from many disparate groups which have interests in the Straits of Malacca. It has also been suggested that an "International Donor Conference" be convened to discuss a "funding framework" for navigational safety and environmental protection in the Straits (Hussein 2005).
The International Maritime Organisation has been and would no doubt continue to be one of the principal players in the Straits of Malacca. In the past it has facilitated the establishment of the Traffic Separation Scheme and other initiatives towards improving navigational safety in the Straits. More recently the IMO has played the role of a 'matchmaker' in trying to build consensus among the littoral States and the users. This began with the two conferences on operationalising Article 43 of UNCLOS organised jointly by the Institute for Policy Research of the National University of Singapore and the IMO in 1996 and 1999 and was followed by the Jakarta and Kuala Lumpur meetings on the Straits of Malacca in 2005 and 2006 respectively, IMO's role in bringing together the two parties should not be undertstated and its influence over the issue should not be under estimated. The Kuala Lumpur Statement called for the IMO to continue playing a role in assisting the littoral States "in attracting sponsors for the agreed projects and contributors for the maintenance, repair and replacement of the aids to navigation in the Straits" and to convene future meetings for the littoral States "to identify and prioritize specific needs, and for user States to identify possible assistance and to respond to those specific needs."
Future Littoral States - Users Relation
So far the relationship between the littoral States and users in the Straits has been straightforward: the littoral States provide the services and ensure that the Straits is open and safe for navigation: and apart from Japan, the users utilise these services for their benefits. This has changed slightly in that the littoral States have now also taken the role of project proponents. At the Kuala Lumpur Meeting on the Straits of Malacca and Singapore in 2006 the littoral States have proposed six projects costing over US 42 million dollars for the consideration of the users. This is also a step forward in that the littoral States have actually quantified their requests instead of just stating their predicaments (Gold 2000). It is possible that in the future, more projects would be identified and proposed to the international community as and when the need arises. It is also possible that the users themselves could propose projects for mutual consideration. In such circumstances the littoral States should not be 'trapped' in a donor-driven position where "beggars-can't-be-choosers." This is where the proposed dialogue mechanism between the two parties has a major role to play in reconciling the positions of the littoral States and the users. The arrangement however does raise an important question about the sustainability of the co-operation. While the discussions could in theory continue indefinitely, without sufficient action and more importantly contribution, the dialogue mechanism runs the risk of becoming mere 'talk-shops.'
More substantively, the sustainability of the actions emanating from these meetings also needs examination. While it is possible to obtain funds for 'once-off' projects such as replacing aids to navigation, it may not be possible to obtain longer term funding for the maintenance and upkeep of these equipment. For example while Malaysia's capital expenditure for navigational safety infrastructure up to 1993 totalled almost US 15 million dollars, its maintenance cost for that particular year amounted to more than US 2 million dollars. This is discounting operational costs in conducting surveillance and enforcement, search and rescue and pollution' prevention (Ahmad 1997).
User contributions however, would not come cheaply and unconditionally. And while bodies such as INTERTANKO have expressed readiness to co-operate (Wilkins 2006), it has also held the view that it is willing to pay for improved safety in return for a revision of the WORLDSCALE tanker nominal freight scale to reflect the increased cost and a guarantee of non-discrimination of its members (Marlow 1995). Additionally one could also expect issues such as transparency in how the funds should be used to arise. Could similar 'quid-pro-quo' requests be expected from other industry groups or even user States? It should be noted however, that Japan's assistance towards safety of navigation has so far been free of conditionality. Neither has China mentioned any conditions in its proposal to assist in the replacement of aids to navigation.
Who Pays? For What? and How?
These are the perennial questions which crop up in most discussions on burden sharing in the Straits of Malacca and have never been truly resolved. One of the objectives of this symposium is to advance the debate further although it has been noted that the discussions remain mired over four questions: the definition of the user States: the mechanism for contribution, whether it should be informal and voluntary or formal and mandatory or as parts of a wider system involving all users; a financial management system to administer contributions which would be acceptable to the littoral States and user States; and finally the role of the IMO in the process (Koh and Beckman 2001). These are the difficult questions which needed addressing at the subsequent meetings on the Straits and hopefully, the third of the littoral States organised meeting to be held in Singapore would be able to shed some light on these important issues as neither the Jakarta nor the Kuala Lumpur meetings have made any significant advancement on these questions (Valencia 2006). Apart from China which has entered into technical discussion with the littoral States over its proposal for assistance, none of the other countries which also indicated interest to assist have taken further steps to advance their offer. This harks back to the old argument that it would be easy for the littoral States to come with a list of projects and it would be equally easy for the users to reject them (Hamzah and Basiron 1997) or in this case remain silent. It should however be noted that The United States and Japan have donated radars and patrol boats to Indonesia (Taufiqurrahman 2007: Xinhua 2006) although these are dual-use equipment that could be used for navigational safety and security purposes. To be sure it has been acknowledged that obtaining international support for the Straits of Malacca is a long-drawn process and that the progress made so far is commendable considering that it has stalled for so long. It is understood that the littoral States have also progressed in defining the two legs of future cooperation or burden sharing in the Straits - the mechanism for dialogue between the littoral States and users and the funding mechanism. Perhaps more light would be shed on these issues at the Singapore meeting on the Straits of Malacca and Singapore proposed for September 2007.
This leaves the question of how? Until the littoral States proposal for a funding mechanism is made public, there is little to go by in terms of what the mechanism would look like. The current Malacca Straits Revolving Fund has been mentioned as a possible model. The Revolving Fund which was established in 1 981 provides assistance to the littoral States in cases of oil spills. At its inception Japan donated a sum of 400 million yen for its operation. The Revolving Fund has been described as 'unique' (Teh Kong Leong 1997) and valuable resources in assisting the littoral States cope with the immediate threats of oil spills (Choi Sing Kwok 2006). However, the Revolving Fund is only a 'back-up' fund and is not the primary fund for oil spill control in the Straits of Malacca. This may not be the case for the funding mechanism set up for improving navigational safety and environment protection. Furthermore the sum needed may be larger than the 400 million yen which the Revolving Fund has if the amount of funding requested at the Kuala Lumpur Meeting is an indication of the funds needed by the littoral States.