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IV. Cooperative Agreements under Article 43 of the 1982 LOS Convention
The safety of international navigation through the Straits of Malacca and Singapore is of high strategic importance to the entire international community. The threat of maritime terrorism presents a serious challenge to the international community to develop cooperative arrangements to enhance maritime security in busy congested sea lanes on routes used for international navigation. At the same time, it also presents an opportunity to improve cooperation among user States and States bordering straits to enhance maritime security in the Straits of Malacca and Singapore. The most appropriate vehicle for such cooperation would be an agreement pursuant to Article 43 of the 1982 LOS Convention.10
The 1982 LOS Convention is silent on the obligations of States bordering straits with regard to maritime security in straits used for international navigation. However, the December 2002 amendments to the SOLAS Convention provide that coastal States have an obligation to make security assessments of threats to shipping in their territorial sea.
At the same time, it is not reasonable to expect coastal States to bear the entire cost of providing security for the ships exercising passage rights through straits used for international navigation. User States are the major beneficiaries of the passage rights, and they should consequently bear some of the cost of enhancing security in the straits used for international navigation.
The time is ripe for major maritime States to make a concerted effort to enhance maritime security in the Straits of Malacca and Singapore. Arrangements should be negotiated between major user States and the States bordering the Straits of Malacca and Singapore to cooperate to suppress terrorist acts and other attacks on ships exercising transit passage through the Straits of Malacca and Singapore.
Such an agreement would be consistent with the 1982 LOS Convention as it would be the type of agreement that is called for in Article 43 of the 1982 LOS Convention, which provides that:
"User States and States bordering a strait should by agreement cooperate:
(a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and
(b) for the prevention, reduction and control of pollution from ships."
A cooperative agreement to enhance maritime security by preventing and suppressing attacks on ships transiting the strait would be cooperation in the establishment of improvements in aid of international navigation. Enhancing security in the aid of international navigation is just as important as enhancing safety in the aid of international navigation, especially in light of the threats posed by maritime terrorism. Furthermore, the practice of the IMO after September 11, 2001, has confirmed that maritime security is now an essential part of maritime safety.
The threat posed by international terrorism to maritime security in the Straits of Malacca and Singapore can provide a new impetus to negotiate an agreement between user States and States bordering the Straits of Malacca and Singapore as called for in Article 43. The threat posed by international terrorism to the safety of shipping on major international shipping routes through Southeast Asia is real. It is in the interests of the IMO, the States bordering the Straits, the user States and the international community generally, to reach an arrangement as soon as possible to prevent and suppress terrorist acts and other attacks on vessels exercising transit passage through the Straits of Malacca and Singapore.
An Article 43 agreement to cooperate to enhance maritime security in the Straits of Malacca and Singapore might include the following provisions:
1. All States have an obligation to cooperate to suppress and prevent terrorist acts and other attacks on vessels exercising transit passage through the Straits of Malacca and Singapore.
2. States bordering the straits have an obligation to cooperate to suppress attacks on vessels that are particularly vulnerable, such as oil tankers and ships carrying hazardous substances, when such vessels are exercising transit passage through their sea.
3. The three States bordering the straits should enact domestic legislation making an attack on a ship exercising the right of transit passage through the Straits of Malacca and Singapore a criminal offence punishable by heavy penalties. An attack on a ship exercising passage in the sea lanes established under the traffic separation scheme for the straits should be an offence under the laws of all three States bordering the strait, no matter in whose territorial sea the attack took place.
4. User States have an obligation to provide financial and technical assistance to States bordering the straits to enable such States to fulfill their obligation to enhance maritime security and prevent terrorist attacks on foreign ships exercising transit passage through the straits.
5. User States should also provide technical and financial assistance to States bordering the straits to enable them to meet the requirements in the ISPS Code for enhancing security in port facilities in their States.
6. User States and States bordering the straits should enter into cooperative arrangements to prevent and suppress attacks on vessels exercising passage rights through the Straits of Malacca and Singapore. Such cooperative arrangements might include (a) coordinated patrols and/or joint patrols; (b) the escort of vulnerable vessels by maritime powers or flag States; or (c) contingency plans that include the granting of immediate permission to maritime powers to visit and board vessels suspected of containing terrorists or vessels suspected of engaging in terrorist activities.
Other cooperative arrangements between States bordering the straits and user States to enhance maritime security in the region might also be considered.
First, many developing States in the region have off-shore artificial islands, installations and structures in their Exclusive Economic Zones for the purpose of exploiting their off-shore hydrocarbon resources. Some of these States may not have the finances or capacity to enhance security over those islands, installations and structures. User States which exercise passage rights through waters within the sovereignty of such States should assist them by providing assistance in enhancing security over such artificial islands, installations and structures.
Second, States in the region should review their domestic legislation on acts of armed robbery against ships, piracy and maritime terrorism with a view to bringing their laws up-to-date in order to meet the threats to the security of shipping in the region. They should also consider entering into regional or sub-regional agreements to combat piracy and armed robbery against ships.
CONCLUSION
The Straits of Malacca and Singapore are choke points on a vitally important trade route. The international community has a great interest in ensuring the safety and security of ships exercising fights 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 1988 SUA Convention and Protocol. Consequently, the three States bordering the straits and other States in the region should become parties the 1988 SUA and its Protocol. The IMO Legal Committee 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 and would provide further weapons in the war against maritime terrorism.
The terrorist threat since September 11, 2001 has resulted in the IMO incorporating maritime security into maritime safety. The 2002 amendments to SOLAS 1974, 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 1982 LOS Convention, 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.
NOTE
2 Joseph Brandon, op-ed comment, International Herald Tribune, 5 June 2003
6 The other "terrorist conventions" following the scheme of the 1970 Hague Convention include: (1) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (2) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; (3) International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; (4) International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; (5) International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999.
10 For background on the legal issues relating to Article 43, see the papers presented at the two conferences held in Singapore on this issue which are reported in the Singapore Journal of International & Comparative Law, Volume 2, 1998 and Volume 3, 1999.
Overview of Discussions
Session 1: Constitution of a Concept
Two discussion points
1-1 The formation of a new approach to ocean security presents several problems. One question is whether a regional approach would be most effective, or whether a more overarching approach, through organizations such as the International Maritime Organization (IMO) or even the United Nations, would fare better. Another question concerns how to deal with those countries that choose not to participate in an internationally agreed framework. We look forward to comments on these topics in the course of the debate.
Governance and management
1-2 The use of the term "governance" makes some people uncomfortable. As an alternative we can adopt the term "ocean management," which was used at the 1998 Independent World Commission on the Oceans (IWCO). No system of governance yet exists in international society, and the will to establish one to preserve the ocean for future generations is weak at present. One problem with ocean governance is that issues such as overlapping sovereignty will have to be sorted out.
1-3 The term "ocean management" is easy to use, as it does not arouse complex emotions in a political context. The problem with the word "governance" is that it implies the question, who is the governor?
1-4 It is important to distinguish the difference in meaning between "governance theory" and "regime theory." The phrase "integrated ocean management" has been used in contrast to "global governance." In integrated management, it is clearly understood in the discussions that some body is doing the managing. This manager is assumed to be civil society in some form, whether national governments or organizations, individuals or collections of individuals. Provided the managers share the same objectives, the term management is appropriate enough, but the term "integrated" is used like a magic wand. What exactly is integrated management? Normally management consists of solving problems by identifying individual issues and solving them one by one, correcting the regime in the process. Modern problems, however, require managers to identify areas of issues and aim for comprehensive solutions for each. Such integrated solutions are unlikely to arise under the regime framework. I believe the term "governance" captures the notion of solving complex problems between regimes.
1-5 If the IMO is deemed an appropriate organization to take the central role ocean governance, it is not yet adequate to the standards required. However, the IMO is in the process of crafting its long-term vision regarding the role it expects to take in the future. I am confident that the IMO can play a major role in ocean governance.
Safety and security on the oceans
1-6 The SUA convention must be made more effective. This will require each nonmember nations to deliberate on whether to ratify the convention. Also, a much grander vision is required for cooperation under Article 43 of the United Nations Convention on the Law of the Sea (UNCLOS). With regards to addressing security issues, it is important that the SOLAS convention revised and ratified by countries and that the International Ship and Port Facility Security Code (ISPS code) be implemented.
Integrated management systems
1-7 The global community needs to clarify who benefits from "securing the ocean" as well as the purpose of best use of the ocean. An overarching approach through some framework or regime is called for because the ocean and land are inseparable, not only in terms of ecosystems but politically, socially and culturally as well. Clearly, "securing the ocean" is security for human life on this planet. The problem is that no framework or system of integrated management yet exists.
1-8 It is often said that government offices and agencies are working across organizational barriers to develop land and ocean in an integrated fashion. What is not clear, however, is how this effort applies to straits used in international navigation. Bringing numerous countries together will require the collaboration of the IMO and coastal states. This is one form that integration could take. In this case the benefiting countries are those who use the straits, so the users must share the burden of maintaining security and protecting the environment. This sharing of burden is sadly lacking at present. The IMO's Marine Environment Protection Committee is now grappling with the important issue of how to share the burden of preventing oil spills and maintaining the safety of navigation. We can no longer afford to manage these concerns in a patchwork fashion. Cooperation through the IMO is vital.
1-9 Understanding the interface between ocean and land is crucial, yet too many countries don't want others to poke their noses in their business especially about marine pollution originating on the land. This is a sensitive issue that demands careful handling.
On safety at sea, the IMO plays a realistic and important role. The IMO should be able to serve a monitoring role as well.
1-10 From a framework perspective, the revisions of the SOLAS and SUA conventions contain elements that are markedly different from what they had before they were revised. These revisions were made to reflect changes, including changes in recognition of current conditions, since 9/11. A new convention should be provided for the creation of a regime of specific anti-terrorism measures, with roles allocated to coastal states and flag states. Moves are afoot to revise the existing convention framework due to time considerations. Although these revisions may be wholly realistic and inevitable in light of recent events, they represent not a radical overhaul of the maritime order but a piecemeal approach, using the existing framework to satisfy current needs.
Apprehension has been voiced in some quarters over what such an overhaul of the maritime order would mean. For example, if a coastal state located on a strait did not agree to certain measures, could the regime be forcibly imposed on the strait area? These questions cannot be answered until we have fully considered what kind of maritime order we wish to establish.
Regional approaches to security
1-11 The importance of regional approaches to maritime security has often been cited, with calls for measures such as joint patrolling of choke points and sea-lanes by all countries in the region, multilateral training exercises and maneuvers. The question is, how does each of the countries in the region feel about this? Two years ago, when Japan indicated its desire to dispatch vessels to Southeast Asia, China objected. The same may happen again if Japan dispatches vessels of the Japan Coast Guard.
1-12 Joint patrols and multilateral maneuvers are already under way. These arrangements need to be formalized. Since the attitudes of participating regional states are the key to success, national sovereignty must be respected.
Much has already changed. A decade ago, when Britain's Royal Navy proposed a patrol for pirates in the Strait of Malacca, voices of opposition were raised, complaining that the British Empire was rearing its head again. Today, Japan and other countries are cooperating on these efforts. Indeed, some straits countries are considering building such multilateral efforts in order to enhance their capabilities.
China depends heavily on the Strait of Malacca, as it imports oil through this vital shipping lane. The Chinese government places great value on sea-lane security, and we believe it is open to collaborative efforts to "secure the oceans."
Ocean governance and the concept of "securing the oceans"
1-13 Some participants have indicated that "management" is a more appropriate term than "governance." In Chinese, however, the same word is used for both, so no distinction is made.
1-14 We think that the China should coin a new term for governance in Chinese. China is perfectly capable of devising new words for such modern phenomena as computers and digital technology, so they should be able to do the same for "governance."
Professor Okuwaki referred to "Governance without Government." I think that's a highly suggestive phrase. Today no global authority exists to tackle marine issue, and though laws exist they are not enforced. The theme of this session is forming new concepts, and I propose that we consider new concepts with which to support the maritime order. A new word in Chinese is needed that captures the idea of an international community for securing the oceans or “護海共同体”, in accordance with Chinese grammar.
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