The least likely scenario for disruption of the sealanes in the foreseeable future is conflict among Southeast Asian states and/or attacks by any of them on commercial vessels in regional sea-lanes. A greater concern, particularly among ASEAN countries, is disruption of sealanes by conflicts involving China and Taiwan, or China and Vietnam regarding the Spratly islands or disputed oil-fields.

　

　　To allay such fears, the Chinese Foreign Ministry has denied that it will threaten freedom of navigation.³⁴ But China's firing of missiles to areas off Taiwan's seaports in March 1996 did little to bolster confidence in such guarantees. Conflict potential in the Taiwan Strait and the Spratlys remains a real concern, but even in this worst-case scenario, there are still major sealanes available that run west of the Spratlys and east of Taiwan.

　

　　Another threat scenario would involve mining critical sealanes or straits in Southeast Asia. However, given the economic interests of all regional states, it is hard to imagine any state openly mining these waters, and even harder to identify a current rationale for clandestine mining, which Iran was suspected of doing in the Red Sea in 1984. Although such mining would be a major threat to coastal areas of Southeast Asia, as well as in the confined and relatively shallow Malacca Strait, the currents and depth of the Sunda and Lombok Straits would minimize mine effectiveness.³⁵ In sum, while there are real concerns regarding potential military disruptions to the movement of commercial vessels along sealanes in Southeast Asia, both the probability of such disruptions and that of their direct effect on shipping are low for the foreseeable future.

Many maritime jurisdictional claims in the region exceed those allowed by the 1982 United Nations Convention on the Law of the Sea, either in content or geographic extent. Indeed, on any given day the United States is exercising its maritime freedoms against an "excessive" maritime claim somewhere in the world. In Southeast Asia, India, Burma and Vietnam have established military warning zones 24 nautical miles wide, while Cambodia and Indonesia have declared such zones 12 nm wide.⁴⁵ Alien warships and military aircraft are prohibited from these waters, and in the Vietnamese zone other vessels must also secure permission to transit. China also disputes the right of innocent passage of warships through its 12 nm territorial sea. The Philippines' territorial-sea claim reaches up to 284 miles in width and together with its archipelagic claim includes all its critical straits.

　

　　There is ongoing disagreement between the maritime powers and the archipelagic states regarding the sites and regimes for sealanes for passage through and over archipelagic waters. Indonesia and the Philippines wish to restrict the passage of foreign warships and aircraft as well as certain "potentially polluting" vessels through specific lanes, such as those situated close to their national capitals. For example, Indonesia has declared three north-south sealanes through the Sunda, Lombok and Ombai-Wetar Straits. But the United States insists on an east-west sealane through the Java and Banda Seas. The problem is that navigation in archipelagic waters outside of an archipelagic sealane is under the regime of innocent passage in which weapons and radar must be off, submarines must surface and show their flag, and aircraft carriers cannot launch or receive aircraft. Indonesia did provide a short east-west sealane in its waters adjacent to Singapore but that is considered insufficient by the U.S. Navy.⁴⁶ If Indonesia further disintegrates, each new State such as East Timor will have to develop and implement its policy on territorial sea, transit passage, and perhaps archipelagic sealane passage.

　

　　In the South China Sea, official Chinese maps include a claim that encloses much of the South China Sea. In response to repeated U.S. inquiries about its policy, Beijing has stated that it will not interfere with freedom of navigation. But it will not clarify exactly what it claims in the South China Sea and why. What concerns U.S. naval strategists is that some of China's actions - such as its claim to part of Vietnam's continental shelf⁴⁷ and its occupation of Mischief Reef in waters claimed by the Philippines - indicate that it may assert jurisdiction over virtually the entire sea as "historic waters." Freedom of navigation and overflight principles do not apply in historic waters.

　

　　Moreover, China has drawn enclosing baselines around the Paracel Islands in the northern part of the sea, thus removing the enclosed waters from the freedom of navigation regime. It has indicated that it may do the same with the Spratly Islands.⁴⁸ China has also declared 12-nautical-mile territorial seas around the enclosing baselines of the Paracel Islands and insists that foreign warships cannot enter these waters without permission. Setting an ominous precedent, from October 1979 to February 1980, China banned planes at certain heights over four "danger" zones south and east of Hainan island. This forced the temporary closure of a major commercial air corridor.

　

　　Thus Beijing could be intent on transferring large areas of the South China Sea from a regime in which permission is required for entry. Of course, China cannot now enforce such a regime; but when it is strong enough, it may try to do so.⁴⁹ Clearly, the United States will not acquiesce. It will protest in word and probably in deed by having its naval vessels ignore anything that it considers a violation of international laws governing freedom of navigation.

　

　　In Northeast Asia, North Korea requires prior permission for the passage of foreign warships in its territorial sea and has declared a 50-mile security zone extending into the Sea of Japan, where prior permission is also required to enter. China also has a "military warning zone" in the northwestern Yellow Sea, west of a line connecting the Shantung Peninsula with the mouth of the Yalu River.

　

　　Potential problems include the Sea of Okhotsk where in times of tension, Russia might attempt to exclude warships and aircraft. It could even try to adopt a similar regime for the Sea of Japan. Much would depend here on Japan's military orientation toward the United States at the time. Another "closed sea" action could be anticipated in the northern Yellow Sea, where China and North Korea together could establish a restrictive regime north of a line connecting the Shantung Peninsula with the islands along the North/South Korea border.

The quest for safe and environment-friendly shipping involves widely diverging interests with often conflicting or overlapping claims to competence in standard-setting and enforcement. The seemingly endless string of inspections increases the room for conflict as every 'competent body' seems to have its own subjective view of what compliance or non-compliance means. The maze of regulatory requirements and voluntary codes obviously needs to be sorted out. If it is not, maritime anarchy could result. Already, lack of agreement over what constitutes probably the key issue for shipping -- demarcation of authority -- makes risk management difficult in an industry which is cyclical by nature.

　

　　Some critics allege that the regulatory sea-change now in progress threatens to erode the credibility of the International Maritime Organization(IMO).⁵⁰ The IMO maintains that safety and the prevention and control of pollution from ships remain global problems requiring global solutions. It argues that unilateral action, whether by government or industry is not a viable substitute for raising global standards. But IMO has failed to condemn the unilateral actions of some maritime powers like the United States.⁵¹

　

　　Moreover, skeptics argue that the IMO has never really succeeded in achieving international harmonization of standards of sufficiently high quality in terms of their safety and environmental effectiveness. This is so, they claim, because it wrongly continues to rely on flag State for enforcement of its conventions, rules and standards.

　

　　The sea change in the global maritime regime now in progress, they claim, threatens to erode the very credibility of the IMO. The critics argue that the IMO has never really succeeded in achieving international harmonization of standards of sufficiently high quality in terms of safety and environmental effectiveness. This is so, they claim, because IMO continues to rely - wrongly - on flag state enforcement of its conventions, rules and standards. These critics argue that flag state control has failed because the flag countries can only enforce compliance with the relevant IMO conventions on ships registered under their flag. Moreover, many are unwilling or unable to enforce such compliances. This results in substandard vessels or crew. Indeed, because of the failure of flag state control, the IMO is now promoting port state control. This means that a country can take measures against a ship in its port even if it has committed the violation in another country's waters.

　

　　But some say that regardless of flag or port state control, there is a conceptual change in the wind regarding the very nature of the transit passage regime enshrined in the Law of the Sea Convention. Critics argue that the indiscriminate application of the transit passage regime is a by-product of the Cold War and that it is now outdated. For security reasons, both the then Soviet Union and the United States had demanded absolute freedom of navigation and refused to discuss any differences between military vessels and commercial vessels. But there is clearly a difference in purpose and nature between commercial vessels and warships. And no one is proposing regulations which would interfere with the passage of warships. It may thus be time to promote a conceptual separation in the transit passage regime between commercial and military traffic. Such a shift would permit enhanced regulation of commercial vessels for the purposes of ensuring safety of navigation without affecting military or government vessels in any way.

　

　　Because of the importance of the Malacca/Singapore Straits, some experts believe that the IMO wants to use the experience there to define the all important Law of the Sea Article 43 which urges users and straits states to "co-operate," but fails to detail how and in what ways.

　

　　Indeed, IMO is apparently struggling to stay "ahead of the curve" regarding the evolution of a management regime for straits. But some say whatever IMO is doing, it is too little too late.

　

　　For Malaysia and Indonesia, the Evoikos spill was the last straw in a series of incidents which have fouled their waters and left them without adequate compensation.⁵² They want a new arrangement with the user states, principally Japan. Such an agreement could set a precedent for coastal and user states. The crucial question is what will be acceptable to both. Any agreement should be based on "necessity" derived from increased congestion and movement of dangerous cargoes; preventive diplomacy in that a major incident could have repercussions for international relations; the precautionary principle; and the user and polluter pays principles. But a major constraint to co-operation is disagreement on who should pay for improved safety in the Malacca and Singapore Straits. Many of the transit have been funded by Japan, a major transit beneficiary, since 1960.⁵³ This precedent, together with the cooperative efforts of the three littoral States could form the basis of a viable system of shared responsibilities for funding systems to improve safety of navigation. Further, the Malacca/Singapore Straits region could provide leadership to other straits areas with this type of initiative. But if responsibilities and costs are to be shared, who exactly should do the sharing?

　

　　The direct beneficiaries of the Malacca and Singapore Straits are the three Straits States and the transit users.⁵⁴ The latter comprise individual shipping companies as well as States such as Japan and the Republic of Korea, which rely upon this "oil lifeline" for their economic well being. Also benefiting are oil exporters, refiners and electricity generating companies.

　

　　There are also indirect beneficiaries. At the global level, the IMO and its membership under its principle of "safer ships and cleaner seas" benefit from Straits with safe and efficient transit services. Other beneficiaries include the shipping and oil industries represented by the International Chamber of Shipping, the International Union of Marine Insurers, the International Group of P&I Clubs, the Oil Companies International Marine Forum, and the International Oil Pollution Claims Fund, the International Tanker Owners Pollution Federation. Yet, other than Japan, the direct or indirect beneficiaries of safe and expeditious Straits transit do not appear to be making contributions comparable to the benefits gained. Nevertheless, there is considerable evidence that the shipping industry is often prepared to cooperate with measures which provide economic benefits.²⁵

　

　　If no mutually acceptable regime is agreed, then other less attractive possibilities may arise. One possibility is a regime like the Montreux Convention which authorizes certain "service charges" to be imposed on transiting vessels for sanitary, lighthouse and life saving services rendered by the littoral State. Such charges are somewhat similar to the "lighthouse dues" imposed by many States on vessels in their ports. The principles of the Montreux Convention survived UNCLOS, which specifically endorses the "legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically related to such straits."⁵⁵ Turkey's recent decision to unilaterally change passage rules in the Bosphorous Strait is an example of what a Strait State may do, driven by what it perceives to be the right of preservation and protection of its environment.⁵⁶

The nuclear industries and governments of Japan, France and the United Kingdom are engaged in a multiyear, multivoyage program of shipping highly toxic radioactive materials between Japan and Europe.⁵⁷ The risks posed by these cargoes and the frequency of these voyages have raised questions regarding the legal principles that apply to this behavior and the appropriate responses from nations concerned about the risks to the marine environment.

　

　　Plutonium bound for Japan is either shipped as plutonium oxide, like that transported in 1992/1993 on the Japanese-flagged Akatsuki Maru, or as fabricated mixed plutonium/ uranium fuel. While large volumes of low, intermediate and high level nuclear wastes are also generated in the course of reproducing Japanese nuclear fuel, Japan is presently shipping only high level nuclear waste. This waste has been classified and is moved in the form of highly radioactive glass blocks of some 1,000 pounds each. This is the type and form of waste that was first transported on the UK-flagged Pacific Pintail in 1995 and again on the UK-flagged Pacific Teal in the beginning of 1997.

　

　　High level waste contains isotopes which have half-lives ranging from 10,000 to 100,000 years and thus could contaminate marine or terrestrial life for tens of thousands of years. Japanese officials have argued that the transport ships are reinforced with a specially designed double hull and thus that the vessels would be unlikely to sink, that transport routes are selected to minimize the risk of a disaster, and that there are contingency plans to cope with accidents. Nevertheless, the shipments caused protest from many States along the possible route. The shipments have raised public concern as to the threats to the marine environment and populations of coastal States, and en route States have demanded more stringent safety requirements.

　

　　One of the possible routes includes the Malacca/Singapore Straits. In 1992, Singapore and Indonesia opposed the passage of the plutonium ship through the Straits because of the danger of collisions and piracy. Malaysia has developed a plan to escort the ship through the Straits if that route is taken, but has also threatened to block passage as a threat to its national security. Indeed, in 1997, Malaysia banned the Pacific Teal from its waters, stating that it would seek assurances from the Japanese government that the ship would not use waters under Malaysian control. ⁵⁸

　

　　Upon its ratification of UNCLOS, Malaysia made a declaration, which included the following:

　

　

　　This continues to be the Malaysian position.⁵⁹

　

　　Coastal states may view these shipments of high-level radioactive wastes, irradiated nuclear fuel and plutonium from Europe to Japan as violating specific duties mandated by the UNCLOS, and applicable treaties and customary international law, viz., the duty to protect the marine environment, the duty to notify and consult affected nations, the duty to prepare an environmental impact assessment, the duty to avoid causing harm to others, and the duty to prepare appropriate emergency contingency plans. More specific duties are being developed in regional and international documents, but a formal binding international regime to regulate these movements is not yet in place.

　

　　Nevertheless, a new regime is emerging which builds on the precautionary principle, on UNCLOS provisions and on the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the International Atomic Energy Agency, and the IMO. These latter agencies are developing instruments that confirm the requirements of prior consultation on routes and on emergencies and the preparation of environmental impact assessments. State practice, as reflected in the complaints voiced during the 1992 shipment of plutonium and the 1995 shipment of vitrified high-level wastes from France to Japan, and in the acquiescence of the vessels to these complaints, indicates that the countries involved in and affected by these shipments already understand and accept the emergence of this new regime.

　

　　Indeed, Japan apparently recognizes that the extremely hazardous nature of the cargo would preclude its movement through the territorial seas of other countries as "innocent passage". In the 1992 shipment, Japan announced that the plutonium ship would not pass through territorial seas, and also indicated that the ship would avoid the EEZs of other nations, as requested, although its statement was ambiguous on that point and the vessel apparently did pass through the EEZs of several Pacific Island countries. In 1995, the British-owned Pacific Pintail carrying 14 tons of nuclear waste bound for Japan was denied permission to pass through Chilean waters, and it complied.⁶⁰

　

　　It is unclear whether such a ship has the right of passage through international straits. Traffic separation schemes can certainly be imposed on the ship, and other precautions may also be appropriate. No nation would be required to allow the vessel to come into its port in case of an emergency involving the cargo, and nations could also bar the ship from their territorial seas if an accident involving the cargo raised the possibility of pollution to the marine environment. Until a new regime is fully developed, affected nations may, and probably will, take unilateral or regionally coordinated action to protect themselves against these shipments, including taking measures to keep the ships out of their territorial seas and EEZs.

　

　　The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal requires states transporting hazardous wastes to notify States through which the waste is traveling, and it appears to allow the transit States to object to such transport.⁶¹ As of 28 February 1996, it had 100 parties including Indonesia, Malaysia, and Singapore.

　

　　The Basel Convention does not govern the movement of radioactive wastes if other international arrangements governing movements of these wastes are in place, but its approach to protecting the environment provides guidance on this topic. The Japanese government, however, has filed a declaration to the Basel Convention stating that it “understands” that the convention does not “require notice to or consent of any state for the mere passage of hazardous wastes on a vessel of a Party exercising its navigation rights under international law.” The Japanese declaration appears to be in direct conflict with the Convention itself. One commentator has said that “Article 6.4 of the [Basel] Convention does not allow the exporting State to authorize a transfrontier movement of hazardous waste without the previous written consent of every transit State party to the Convention.” Article 4(12) does interject some ambiguity on this matter by reaffirming the “navigational rights and freedoms as provided for in international law,” but the specific requirements in Article 6(4) would probably prevail over the general language in Article 4(12). The Basel Convention also requires parties to take appropriate measures to reduce the movement of wastes “to the minimum consistent with the environmentally sound and efficient management of such wastes” and to conduct such transportation that is necessary “in a manner which will protect human health and the environment against the adverse effects which may result from such movement.”

　

　　What are the likely consequences of this increasing environmental insecurity?Amid growing environmental consciousness, jurisdictional extension may be interpreted by governments as a responsibility to protect living marine resources and human health from activities that could cause serious pollution. The eventual result may be 'creeping' jurisdiction barring environmentally risky vessels like tankers and nuclear-spent-fuel carriers from particularly congested or shallow straits and archipelagic sealanes. The main effect may be higher insurance rates and thus higher transport -- and eventually -- higher energy costs.

Regional cooperation between piracy and law enforcement agencies began in 1992 when the Regional Piracy Center was established in Kuala Lumpur with the support of shipping industries, IMO, and law enforcement agencies to provide a central information, reporting and warning center for the area between Sri Lanka and Northeast Asia. Also in 1992, parallel bilateral agreements among Singapore, Indonesia, and Malaysia to coordinate naval patrols and conduct periodic anti-piracy exercises in the Malacca and Singapore Straits resulted in an almost complete reduction of piracy attacks in the Straits for several years.

　

　　However, piracy incidents have recently increased at an alarming rate. In 1999, two-thirds of all the world's reported cases of piracy occurred in the Asia-Pacific, with Southeast Asia, especially waters near Indonesia, experiencing a majority of piracy incidents.⁶² And the number of incidents in Indonesia in 1999 was almost double that in 1998, probably reflecting the recent economic crisis and domestic unrest in that country. However, most of these “piracy” acts occurred in ports or anchorages.⁶³ The recent upsurge of piracy in the region has led to two recent international conferences in Tokyo - - the “International Conference of All Maritime Related Concerns, both Governmental and Private, on Combatting Piracy and Armed Robbery Against Ships,” on March 28-30, 2000, which issued the “Tokyo Appeal” for action, and the April 27-29, 2000 “Asia Anti-Piracy Challenges 2000: Regional Conference on Combatting Piracy and Armed Robbery Against Ships,” of Heads of Coast Guard Agencies of 14 countries from India to Japan. The April governmental agreement promoted mutual cooperation against piracy/sea robbery through enhanced information exchange, reports, law enforcement activities, investigations, and support of training and technology. Although littoral state civil maritime law enforcement authorities(coast guards, marine police and port police) will continue to have responsibility for preventing or responding to sea robbery in ports and territorial waters, there is a possibility of greater international cooperation between naval and coast guard forces beyond territorial waters.

　

　Almost all acts of piracy in or near the Straits of Malacca and Singapore occur in the territorial or archipelagic waters of - Malaysia, Indonesia, or Singapore.⁶⁴ And acts of piracy in the vast Indonesian archipelagic waters are within the perview of Indonesia. Further, jurisdiction over piracy is uncertain in disputed maritime areas - - especially the large area of multiple claims in the South China Sea.

　

　　Under universally accepted international law, law enforcement officials may not enforce their laws in areas under the territorial sovereignty of another state. Therefore, naval vessels or marine police from one state may not enter the internal, territorial, 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. In light of these legal constraints, there is a clear need for bilateral and multilateral cooperation to effectively deal with piracy.

　

　　Accordingly, in 1992, Singapore and Indonesia agreed to establish direct communications between their navies and agreed to coordinate their patrols to protect Singapore Strait shipping lanes against piracy, with provisions for coordinating pursuit across territorial boundaries. Also in 1992, Indonesia and Malaysia, using the longstanding Joint Border Committee mechanism for maritime cooperation which already included joint naval and police exercises and operations in the Strait of Malacca, and procedures for regular rendezvous at sea to exchange information, agreed to form a joint Maritime Operation Planning Team to conduct coordinated patrols along their common border in the Malacca Strait.

　

　　In Northeast Asia, piracy has also been an impediment to safe navigation for commercial vessels. From 1992, piracy in the East China Sea took on a more overt, quasi-military quality, with Chinese attackers in uniform and in patrol boats, often firing shots. Between 1991 and 1992, there were 78 such incidents. Beijing eventually claimed that rogue elements of the Chinese Customs and Public Security Bureaux(not military units) were responsible. After 17 piracy incidents involving Russian ships in the East China Sea over several years, Moscow deployed naval ships to the area in mid-1993 with orders to attack any threats to shipping. The incidents promptly ceased. Japan, whose ships were also victims, proposed to Chinese Foreign Minister Qian Qichen during his February 1993 visit to Tokyo that officials from the two countries' coast-guard authorities should meet to discuss East China Sea shipping problems. Beijing agreed to an ‘informal’ June 1993 meeting, which established a ‘hotline’ to the Japanese Maritime Safety Agency. Over the next year, such incidents were reduced to one.