The three littoral States have been cooperating to improve the safety of navigation in the Straits of Malacca and Singapore for more than 30 years. In the past two years they have taken steps to move their level of cooperation to a new level and to establish mechanisms for cooperation with user States pursuant to article 43. These steps are set out in the 2005 Batam Joint Statement⁷, the 2005 Jakarta Statement⁸, and the 2006 KL Statement⁹.

　

 The establishment of a system for voluntary contributions by the shipping industry and non-government organizations is consistent with the latest agreement among the three littoral States as set out in the KL Statement:

　

 First, one of the six projects presented by the three littoral States at the KL meeting for enhancing safety of navigation was Project 5, Replacement and Maintenance of Aids to Navigation in the Straits of Malacca and Singapore.

　

 Second, one of the points of agreement in the KL Statement was that the shipping industry and other stakeholders should co-operate with the littoral States and user States towards the establishment of a mechanism for funding the above projects and the maintenance and renewal of aids to navigation in the Straits.

　

 Third, another of the points of agreement in the KL Statement was the establishment of cooperative mechanism to promote dialogue and facilitate close cooperation between the littoral States, user States, the shipping industry and other stakeholders on safety of navigation and environmental protection.

　

 It is expected that more details on project 6, the funding mechanism and the dialogue mechanism will be presented by the littoral States at the follow-up IMO sponsored meeting in Singapore in September 2007. In the meantime, representatives of the shipping industry should indicate that they are amenable to establishing a dialogue mechanism to cooperate with the littoral States on the establishment of a funding mechanism for the maintenance and replacement of aids to navigation in the Straits. Such action would be a major step forward in fulfilling the purpose of article 43 of UNCLOS. By establishing a mechanism for creating a dialogue with the littoral States on these issues, the shipping industry will be demonstrating that it recognizes a sense of corporate social responsibility in working with the littoral States to improve navigational safety and environmental protection in the Straits.

　

　

 Littoral States have no express duty under UNCLOS to establish a system of navigational and safety aids in straits used for international navigation which are within their territorial sea. The only duty of littoral States is to give appropriate publicity to any danger to navigation within the strait of which they have knowledge. (Article 44) However, the International Convention for the Safety of Life at Sea, 1974 (SOLAS)¹⁰, Chapter V, Regulation 13 on the establishment and operation of aids to navigation provides that each Contracting Government:

　

 Furthermore, Resolution 13 provides that when establishing such aids Contracting Governments undertake to take into account international recommendations and guidelines.

　

 The UNCLOS provision calling for co-operation between user States and littoral States with respect to safety and environmental protection in straits used for international navigation is article 43 . According to commentators, article 43 was drafted with straits such as the Malacca Strait in mind.¹¹ It provides that user States and littoral States "should by agreement co-operate". According to Satya Nandan, one of the key persons responsible for drafting Part III of UNCLOS, one of the purposes of article 43 was to ensure that littoral States do not unilaterally impose charges on passing vessels.¹²

　

 If article 43 was intended to prevent littoral States from unilaterally imposing charges on passing vessels in a strait used for international navigation, this is consistent with article 26 with respect to innocent passage in the territorial sea. Article 26 of UNCLOS provides that foreign ships should not be subject to tolls or charges by reason only of their passage through the territorial sea, but that coastal States may, without discrimination, levy a charge on ships passing through their territorial sea for "services actually rendered to the ship". The purpose of article 26 is to prevent any charges in respect of general services to shipping, such as light or buoyage dues, but to allow charges for special services rendered to the ship, such as towage or pilotage.¹³

　

 Article 43 is intended to promote and foster co-operation between littoral States and user States. Although the language in article 43 is hortatory because the word "should" is used, the language when read in light of its context and purpose seems to require that user States negotiate in good faith with littoral States to attempt to reach an agreement to co-operate. Satya Nandan has suggested that if user States refuse legitimate requests to cooperate, this may amount to an abuse of right under article 300 of UNCLOS.¹⁴ In addition, the provisions on compulsory binding dispute settlement in Part XV are available to resolve any dispute between user States and littoral States on the interpretation and application of article 43.

　

 Article 43 provides a basis for international co-operation to defray the cost of such things as the installation and maintenance of aids to navigation, new lighting or buoying schemes, and activities such as dredging of new channels for deep-draft vessels. The co-operation that is envisaged in article 43 is co-operation through agreements between littoral States and user States. Co-operation under article 43 can be either direct or through an international organization. Agreements between user States and littoral States under article 43 could be formal treaties or less formal arrangements, and they could take a variety of forms. A user State could enter into an agreement with the three littoral States to provide direct technical or financial assistance to one or more of the littoral States for the maintenance of aids to navigation. Another user State could agree with the three littoral States that as a condition of entry into its ports, it will impose a fee on ships which enter its ports after transiting the Straits, and pay such fees into a fund for the purposes of maintaining aids to navigation in the strait. Also, the three littoral States and user States could agree to the establishment of a fund by the littoral States for the purpose of maintaining and replacing aids to navigation in the Straits and making other improvements in the safety of navigation in the Straits. In addition, user States and littoral States could agree that the user States will encourage shipping companies whose ships transit the Straits to make contributions to the fund if they are owned by nationals of the user State or if they call at ports in the user State after transiting the Straits.

　

 In conclusion, article 43 envisages an agreement between user States and littoral States to cooperate to improve the safety of navigation in particular straits used for international navigation. Article 43 would not prevent an agreement between user States and the littoral States for user States to impose charges on vessels transiting a particular strait as a condition of entry into their ports. Article 43 would also not preclude private companies (and other non-government entities) from making voluntary contributions to a Fund established by the littoral States for the establishment and maintenance of aids to navigation and other safety aids and improvements in aid of navigation through the strait. If this fund were established pursuant to an agreement between the littoral States and major user States, and endorsed by the IMO and the major international shipping organizations, it would not establish a precedent which could be followed in many other straits used for international navigation.