THE ROLE OF THE USERS FOR THE ENHANCEMENT OF THE SAFETY AND THE PROTECTION OF ENVIRONMENT OF THE STRAITS OF MALACCA AND SINGAPORE IN RELATION WITH UNCLOS 1982
By: Prof. Dr. Hasjim Djalal, MA
(Center for Southeast Asian Studies)
1. When discussing the role of User Countries for the enhancement of the safety of navigation and the protection of environment in the Straits of Malacca in relation to the UNCLOS 1982, I would like to suggest that we should not limit the discussion to what user states can do, but should also investigate what other users can do, such as: shipping companies, oil exporters as well as importers that use the Straits of Malacca and Singapore for their economic, trading and transportation venues. In fact, all the commercial and trading activities that use the Straits of Malacca and Singapore for transit purposes should and could be asked to contribute toward the promotion of safety of navigation and the protection to the environment in the Straits.
2. Although Article 43 of the UNCLOS 1982 said that cooperation should be between the "user States and States bordering a Strait", in my opinion, this was basically because UNCLOS 1982 was between independent and sovereign states. There was no prohibition in Article 43 to exclude other Users from this obligation or encouragement to cooperate.
3. The issues of cooperation between the Strait States and the Users was one of the most fundamental compromise achieved during the long negotiation for the regime of passage through straits which are used for international navigation in waters of less than 24 miles wide. As most of you know, the coastal states, particularly Indonesia and Malaysia maintained that the regime of navigation through the straits that form parts of the territorial sea of a state should be the regime of "innocent passage" following the regime on territorial sea in 1958 Geneva Convention. On the other hand, the maritime powers that used the straits extensively for passage perhaps more than the coastal states, would like to apply the regime of "freedom of navigation" through such straits. Various attempts at compromising these two diametrically-opposed positions was finally settled through Article 43, in the sense that "transit passage" was recognized, but at the same time the users are asked to cooperate and to help coastal states in the maintenance of navigational and safety aids, and for the prevention, reduction and control of pollution from ships.
4. 25 years since the UNCLOS 1982 was adopted, and 13 years since it entered into force in 1994, the user states or their companies have continuously taking various advantages in using the straits without paying or contributing toward the maintenance of safety of navigation or toward the protection of the environment in the straits that have been caused or maybe caused by the passing and transiting vessels. On the other hand, the coastal states have been paying and spending a lot of money and efforts to promote safety of navigation and to protect their marine environment. It should be noted that, unlike the financial capacities of many user states, particularly the developed shipping nations, the capacity of certain coastal states, particularly Indonesia, is very limited while it has many other problems and concerns in other parts of its maritime zones beyond the Straits of Malacca and Singapore.
5. During the Law of the Sea negotiation, several suggestions had been made to help solve these problems. There was a proposal that would require user states to provide compensation to states bordering straits for activities undertaken by the latter to facilitate passage through straits. While this modalities was not intended to be charges or tolls that was opposed by the maritime powers, there were strong supports to the interpretation that coastal states bordering straits should be assisted in installing and maintaining aids to navigation, or the adoption of other measures to maintain or facilitate safe passage, or when it is essential to take some precautionary measures against pollution or hazards in the event of accident of certain categories of vessels. There were some discussions as to how the charges should be collected or how to use/manage it. There was even proposal that Special Fund be established and managed by an international institution and the Fund should be used to maintain and facilitate safe passage and to compensate the coastal states for any injury or damage they may have suffered or would suffer. There was practically nothing happened to this idea since UNCLOS 1982, except some measures that were taken by Japan through the establishment of Revolving Fund in 1981.
6. The idea of sharing costs was repeated again later on by other proposals including by the United Kingdom. The UK proposal was somewhat different from the coastal states proposal in the sense that the coastal countries were originally talking about some kind of "rights to be compensated", while the UK version was suggesting in somewhat less empathic formulation or obligation.
7. While the ideas of charging vessels for simply transiting the straits was not generally acceptable to maritime powers, the charges however maybe levied upon foreign ships "as payment only for specific services rendered to the ship". These charges shall be levied without discrimination (UNCLOS Article 26). The problem therefore was not charging in permissible, but whether the charges are discriminatory.
8. After 25 years since UNCLOS 1982 and after so much effort have been made to promote safe passage through the straits, it would appear to me that the users should now contribute in one way or another to promote safety of navigation as well as protection of the marine environment in the straits. It appears to me that the period of "free ride" in using the straits has now passed, particularly because increasing member of vessel are using the straits and more frequent problems faced by the coastal states in promoting safety of navigation and in protecting their environment caused by pollution from ships.
9. Indeed, Japan seemed to have understood this from the very beginning and has contributed substantially to the promotion of safety of navigation in the Straits by assisting the joint hydrographic surveys, in establishing navigational aids, in formulating certain understanding on navigation, such as the UKC 3.5 meters, the establishment of Traffic Separation Scheme (TSS) and the establishment of Revolving Fund since 1981 to help coastal countries take immediate action to overcome the problems of oil pollution caused by ships in the Straits.
10. Other users have not shown similar concern, but keep insisting that the coastal countries, in a sense, should protect their vessels from all kinds of threats without offering any assistance. Fortunately, a few others have lately also supported these efforts and in the last conference on the Straits of Malacca and Singapore in Jakarta in September 2005, some progress had been made, indicating the willingness of the users to help in the promotion of safety and security of navigation in the Straits. Some countries, like Japan, China, South Korea and the US, have even indicated their willingness to share the burdens of the coastal countries, particularly those who are in need for such assistance in the field of capacity building, technical assistance, and other equipments which maybe needed. In fact, some of them were asking coastal countries to identify and quantify those needs and on that basis they could look into the possibilities in what area and how they could support coastal countries to overcome those needs.
11. On the basis of the results of the Jakarta meeting in September 2005 and other developments and meetings later, I understand that the coastal countries, particularly Indonesia, have already been looking into this matter and are in the process of formulating and identifying their needs more specifically. Now, at least for safety of navigation, they are submitting six projects, costing more than US$ 41 million to realize over a period of a few years. I am happy to note that China has offered to help and finance specific project, particularly project number six on replacement of navigational aids damaged by tsunami. I would hope that others in the days ahead would make similar commitments. It is my understanding that they also need a number of vessels and aircraft for law enforcement and patrols purposes in the Straits, developing an integrated maritime system, additional navigation aids system, as well as developing more effective and more modern communication facilities and radars. They also need training, technical assistance and others. It is my hope that the three coastal countries would be able to coordinate their needs on this matter in order to achieve cost effectiveness and efficiency as they did with the six projects.