The objective of this paper is to examine how to establish and implement new cooperative arrangements to enhance maritime safety and security and to protect and preserve the marine environment in the Straits of Malacca and Singapore.

　

 Certain fundamental principles must form the basis for any cooperative arrangements. First, they must ensure respect for the sovereignty of the littoral states. Second, they must be consistent with the 1982 UN Convention on the Law of the Sea. Third, they must build upon existing cooperative arrangements. Finally, they must focus on issues of common concern and involve all interested stakeholders.

　

 The first area where enhanced international cooperation is a matter of priority is vessel-source pollution in the Straits. Cooperative arrangements are necessary to more effectively implement the three major IMO conventions governing vessel-source pollution - MARPOL 73/78 on the prevention and pollution from ships, OPRC 1990 on oil spill contingency planning, and CLC 92 and Fund 92 on liability and compensation for oil pollution damage. In addition, other cooperative measures can be taken by user states and other stakeholders with respect to vessel-source pollution.

　

 The second area where cooperative arrangements are a matter of priority is maritime safety and security. Cooperative measures can be taken by the various stakeholders to combat piracy, maritime terrorism and other threats to maritime security. The measures taken should address not only piracy and maritime terrorism, but also maritime security issues that are of greatest interest to the littoral states.

　

 User states should take cooperative measures in order to fulfill their obligation to share the burden of improving safety and security and protecting the environment of Straits. Finally, the cooperative measures taken should ensure that the littoral states adopt an integrated, cross-sectoral approach to these issues at both the national and subregional levels.

　

 In this paper I will examine selected issues relating to the establishment and implementation of new cooperative arrangements to enhance maritime safety and security and to protect and preserve the marine environment in the Straits of Malacca and Singapore (Straits). I first set out the fundamental principles and premises which should form the basis for such cooperative arrangements. I then address the two areas where enhanced international cooperation is necessary as a matter of priority. The first area is vessel-source pollution. I propose cooperative arrangements to more effectively implement the major IMO conventions governing vessel-source pollution - MARPOL 73/78¹ on the prevention and pollution from ships, 1990 OPRC² on oil spill contingency planning, CLC 92³ and Fund 92⁴ on liability and compensation schemes for oil pollution damage. I also propose cooperative arrangements that can be taken by user states and other stakeholders with respect to vessel-source pollution. The second area is maritime safety and security. I propose cooperative arrangements by the various stakeholders to combat piracy and maritime terrorism as well as to combat other threats to maritime security which are of greater interest to the littoral states. Finally, I suggest measures that can be taken by user states to ensure that the littoral states adopt an integrated, cross-sectoral approach to these issues at both the national and subregional levels.

　

 Any cooperative arrangements to ensure maritime safety and protect and preserve the marine environment in the Straits must be based upon certain fundamental principles and premises.

　

　

 The lower half of the Malacca Strait and the entire Singapore Strait are within the territorial sea of the littoral states. These waters are under the sovereignty and jurisdiction of the littoral states, subject to the provisions set out in the 1982 United Nations Convention on the Law of the Sea⁵ (1982 UNCLOS). The three littoral states, especially Indonesia and Malaysia, jealously protect their sovereignty in these waters. Any international cooperative arrangements regarding the Straits must not be perceived as an attempt to create international legal regimes which would internationalize the Straits or undermine the sovereignty of the littoral states. If they are so perceived by the littoral states, they are deemed to fail as the cooperation of the littoral states is essential to the success of any cooperative arrangements.

　

　

 The Straits are straits used for international navigation as set out in Part III of 1982 UNCLOS. 1982 UNCLOS sets out a carefully negotiated compromise between the interests of littoral states and user states. The compromise recognizes that user states have an interest in unimpeded passage through and over straits used for international navigation on major international shipping routes. It limits the right of the littoral states to regulate ships exercising passage rights through the straits, and gives the International Maritime Organization (IMO) a major responsibility in adopting regulations governing ships exercising passage through such straits. The compromise also recognizes that any activities of ships in straits used for international navigation that are not an exercise of passage rights are subject to the sovereignty and jurisdiction of the littoral state if they take place within the territorial sea of the littoral state. This would include the exercise of jurisdiction over foreign ships engaged in illegal activities such as drug smuggling, illegal discharge of oil, armed robbery against ships and maritime terrorism.

　

 The United States and other major user states would vigorously oppose any proposal for cooperative arrangements that would limit or restrict the passage regimes set out in 1982 UNCLOS. Therefore, any cooperative arrangements that are proposed must be in consistent with the regime of transit passage set out in Part III of 1982 UNCLOS.

　

　

 The three littoral states (Indonesia, Malaysia and Singapore) have been cooperating to improve the safety of navigation in the Straits since the late 1970s. They have worked together to propose various measures to the IMO on the safety of navigation, including a vessel traffic system, a traffic separation scheme, and mandatory ship reporting. The three states have also worked together periodically to conducted co-ordinated patrols of the Straits to combat attacks against ships.

　

 In July 2004 the Indonesian, Malaysian and Singaporean Armed Forces launched a new regional maritime security operation called the Trilateral Co-ordinated Patrols Malacca Straits, code-named Operation MALSINDO.⁶ As part of the operation, each navy is committed to providing between five and seven ships year round to patrol the Malacca Strait. They have also established a hotline that will allow them to communicate so as to better coordinate the operation, particularly when a vessel from one of the countries is in pursuit of pirates. The specifics of the arrangement are not publicly available. However, it has been reported that a warship from one of the littoral states will be allowed to enter the waters of another littoral state when chasing a pirate ship, provided that this is communicated first to the other state. Early indications are that it has been successful in reducing the number of attacks. It is hoped that the enhanced cooperation among the three littoral states will be expanded to include cooperation from major user states as well as states in the region such as Thailand.

　

 Cooperative arrangements to deal with vessel-source pollution and maritime safety and security require cooperation at a cross-sectoral and inter-ministerial level. This would require a greater degree of cooperation than that which is present under the existing arrangements. Professor Hasjim Djalal of Indonesia has proposed that the three littoral states use as a basis for enhanced cooperation a Ministerial Council consisting of Ministers from the three littoral states.⁷ He has pointed out that the three littoral states agreed to establish a Ministerial Council for this purpose in the 1970s, but that the Ministers met only once. He has argued that a Ministerial Council is necessary to take policy decisions necessary to consider new cooperative arrangements across several sectors and ministries. He has argued that the Ministerial Council should be "resurrected" for the purposes of addressing the issue of enhanced cooperation.

　

 A high-level meeting of Ministers by the three littoral states would be a very useful and practical first step. The three states might even consider having the council meet at the Deputy Prime Minister level rather than Ministerial level. This would send a clear signal that the littoral states are willing to adopt a cross-sectoral approach to cooperative arrangements involving all the relevant ministries and departments within their governments. Such a high-level meeting among the three littoral states would have important symbolic significance. It would build on the existing cooperative arrangements among the three littoral states, and send a clear signal that any cooperative arrangements must be approved by the three littoral states.

　

　

 Cooperative arrangements to improve navigational safety and security and protect and preserve the marine environment cannot succeed unless all relevant stakeholders are involved in their development and implementation. The relevant stakeholders obviously include major user states that depend upon passage through the Straits for trade and security. Cooperative arrangements between user states and littoral states with respect to navigational safety and vessel-source pollution could be brought within the ambit of Article 43 of 1982 UNCLOS, which provides for burden-sharing agreements between littoral states and user states.⁸

　

 Under 1982 UNCLOS, restrictions or requirements on vessels exercising passage through straits used for international navigation must be proposed by the littoral states and adopted by the IMO. Therefore, it will be necessary to involve the IMO in the development of any cooperative arrangements which would impose restrictions on vessels exercising passage through the straits.

　

 Other relevant stakeholders include international organizations that might be able to provide funding for specific projects. In addition, the private sector and organizations representing the interests of the private sector and civil society should also be included as stakeholders. This would include organizations representing tanker owners, shipping organizations, oil companies, environmental groups, etc.

　

 When exploring ideas for cooperative arrangements, it may be useful to consider track-two meetings or workshops. This would enable government representatives to attend in their private capacity to freely exchange ideas with other stakeholders as well as with representatives form academia and from think-tanks.

　

　

 Any steps to enhance cooperation should be incremental. It would not be wise to attempt to establish a management scheme to deal with all aspects of the Straits, from navigational safety to pollution to fisheries to integrated coastal management. Such a proposal is almost certain to fail. A more realistic approach would be to develop cooperative arrangements to deal with specific issues or problems that are of the greatest concern to littoral states, user states and other stakeholders.

　

 There are two areas which are of great concern to all stakeholders. The first is maritime safety and security. The second is vessel-source pollution. Since these two issues are also specifically mentioned in Article 43 of 1982 UNCLOS, it would be wise to begin any discussions on cooperative arrangements by focusing on these two areas.

　

 There is scope for the three littoral states to enhance their cooperation to prevent, reduce and control pollution from ships in the Straits. First, they should coordinate their efforts to enhance and effectively implement MARPOL 73/78. In doing so, they should work together with shipping organizations, major user states and international funding agencies. They should establish an Experts Group to determine whether it is possible to implement more effectively the international rules and standards set out in MARPOL 73/78. The study should include issues such as reception facilities, issuance and inspection of documents and certificates, port state inspection and control procedures, and harmonization of legislation on vessel-source pollution.

　

 The three littoral states should consider developing and adopting an action plan to combat illegal intentional discharges of oil and oily waste from ships in the Straits. The action plan could include enhanced cooperation among the three littoral states and the use of port state control as envisaged in Article 218 of 1982 UNCLOS. Article 218 would enable Malaysia or Indonesia to request Singapore to exercise port state control to investigate ships that are suspected of having illegally discharged oil or oily waste in Malaysian or Indonesian waters. In developing the action plan, the three states should seek expert assistance from other regions such as the North Sea which have coordinated arrangements to combat illegal intentional discharges. User states could cooperate in the action plan by providing technical expertise and equipment.

　

 Another area where there can be enhanced cooperation is in the implementation of OPRC 1990 with respect to contingency planning for shipping accidents involving the discharge of oil into the Straits. The contingency planning could build upon existing mechanisms and existing arrangements. An action plan could be developed which would enable the best response possible to an oil or chemical spill in the Straits. Such an action plan should involve user states and other stakeholders such as oil companies, chemical companies and the IMO.

　

 Finally, the three littoral states could enhance their cooperation by harmonizing their laws and procedures relating to compensation schemes for oil pollution under the CLC 1992 and Fund 1992. The harmonization of laws and procedures would be to the benefit of all three states should there be a major spill which causes oil pollution damage in the territory of more than one of the three littoral states.

　

 New cooperative arrangements should be considered to enhance navigational safety and maritime security in the Straits. With respect to the safety of navigation, any new cooperative arrangements should build on existing arrangements. First and foremost, cooperation is necessary among the three littoral states. They have cooperated for the more than 30 years to improve the safety of navigation, and any new efforts should build upon the existing arrangements. Similarly, Japan is the one user state that has contributed significantly to efforts to enhance navigational safety in the Malacca Strait. The Japanese model can be used as a precedent for other states providing assistance.

　

 Major user states have a great interest in enhancing maritime safety and security in the Straits of Malacca and Singapore. First, the Straits are part of a vitally important route for international trade and ships passing through the Straits carry 80% of Japan's oil. Second, in recent years there have been an increased number of attacks on ships passing through the Straits, making them one of the most dangerous areas of the world for international shipping. Third, since the September 11, 2001 attack on the World Trade Center in New York, there has been an increased concern of about maritime terrorism in the Straits.

　

 With respect to improvements in aid of international navigation in the Straits, user States could assist the littoral states, especially Indonesia, in the establishment of radar facilities, automatic identification system facilities, and other facilities necessary to gather information on ships exercising passage in the Straits. User states could provide funds for patrol vessels, spotter planes, facilities and equipment, and provide training for the personnel needed to operate them.

　

 Several steps can be taken to combat piracy and maritime terrorism. The most important is enhanced cooperation among the three littoral states, including increased coordinated patrols, increased cooperation among law enforcement agencies, harmonization of laws and procedures, etc. There have been two positive developments at the regional level in this regard in 2004. The first is the enhanced trilateral coordinated patrols established by the three littoral states in July 2004, which was discussed earlier. The second is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, which was adopted at a meeting in Tokyo on 11 November 2004.⁹ The 2004 Regional Agreement provides for the establishment of an information sharing centre in Singapore to promote greater communication and information exchange to combat piracy and armed robbery against ships. This initiative was first mooted by Japanese Prime Minister Junichiro Koizumi, and will be another step in the region's battle against piracy. The sixteen countries which participated in the meeting in Tokyo were: Bangladesh, Brunei, Cambodia, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, the PRC, Sri Lanka, Singapore, the ROK, Thailand and Vietnam.

　

 Another step that the three littoral states can take is to ratify the 1988 SUA Convention¹⁰ and harmonize their domestic laws implementing the Convention. The SUA Convention is the main "terrorist convention" dealing with acts against the safety of maritime navigation. Parties to the SUA Convention have an obligation to make specific acts a crime under their laws when the alleged offence takes place in their territory as well as when the alleged offender is "present in their territory", no matter where it takes place. Parties have an obligation to take alleged offenders into custody if they enter their territory, and either to extradite them to another party that has jurisdiction or to turn the case over to their own authorities for prosecution in their courts. If ratified by all the littoral states, the 1988 SUA Convention could provide a useful tool in dealing with attacks on ships in the Straits of Malacca and Singapore.

　

 A new protocol to the 1988 SUA Convention is being drafted by the Legal Committee of the IMO. Proposed amendments in the revised draft protocol include a substantial broadening of the range of offences included in Article 3 of the SUA Convention and the introduction of provisions for boarding vessels suspected of being involved in terrorist activities in Article 8. A diplomatic Conference to adopt amendments containing the new protocol will be held in October 2005.¹¹ The new protocol is intended to bring the 1988 SUA Convention up to date in light of the terrorist threat that exists after the September 11, 2001 attack on the World Trade Center. States in the region, especially the 3 littoral states, should study the draft protocol so that they can ratify and implement it when it is finalized and adopted.

　

 User states must also accept a greater responsibility to share the burden of enhancing maritime safety and security. User states are the major beneficiaries of safe and secure passage through the Straits, so it is only equitable and fair that they share the burden of enhancing safety and security. User states can contribute by providing financial assistance for training, patrol vessels and equipment to littoral states such as Indonesia which cannot afford to bear the costs themselves. User states can also cooperate by sharing intelligence and information. User states and donor agencies could also assist the littoral states in enhancing security in their ports so that they meet the requirements of the ISPS Code¹², by providing vessels and training necessary to enhance security in ports and coastal wasters, etc. Finally, user states or donors could provide littoral states with legal assistance and expertise so that they can harmonize their laws and procedures governing persons who attack ships exercising passage in the Straits.

　

 Another practical step which can be taken to enhance maritime safety and security in the Straits is to accept a wider definition of the maritime safety and security. The maritime safety and security issues of greatest concern to the major user states are combating "piracy"¹³ and the threat of maritime terrorism. However, these issues are not of the greatest concern to the littoral states, especially Indonesia. The maritime safety and security issues of greatest concern to Indonesia, and to a certain extent Malaysia, are activities such as illegal fishing, arms trafficking, drug trafficking and illegal immigration. Also of increasing concern is the smuggling of arms to insurgent groups in Aceh province and in Southern Thailand.

　

 International cooperation to enhance maritime security in the Straits is likely to obtain greater support from Indonesia and Malaysia if it addresses not only the problems of piracy and maritime terrorism, but also the problems of greatest concern to the Indonesia and Malaysia. Many of the techniques employed to combat piracy and maritime terrorism can also be utilized to combat the illegal activities at sea that are of greatest concern to Indonesia and Malaysia. If the littoral states have more and better patrol vessels and spotter planes, they will not only be better equipped to combat piracy attacks and respond to threats of maritime terrorism. They will also be better equipped to protect their waters from illegal fishing, to track vessels that have illegally discharged oily sludge, and to arrest vessels engaged in the smuggling of people, arms and drugs.

　

 Littoral states, user states and the entire international community have an interest in ensuring that the marine environment in the Straits is protected from vessel-source pollution, that illegal activities in the Straits are suppressed, and that passage through the Straits is safe and secure.

　

 The critically important ingredient necessary to achieve these goals is enhanced cooperation among the three littoral states that includes an integrated, holistic, cross-sectoral approach. The issues are complex and they require a coordinated effort by various government ministries and agencies in each state, and cooperation by those ministries and departments with their counterparts in other states. For example, to combat piracy and maritime terrorism, there must be close coordination and cooperation among the various law enforcement agencies within the state where the pirates are based. Similarly, the littoral states must adopt an integrated approach whereby the different government agencies cooperate with one another to achieve common objectives, and not compete with each other for funds and resources. To ensure that such an approach is adopted, the three littoral states should be encouraged to establish a Ministerial Council on the Straits of Malacca and Singapore and to establish an inter-ministerial committee within each state to address the issues.

　

 User states, donor organizations and the private sector must all do their part to assist the littoral states to achieve the objectives. They must provide financial and technical assistance to the littoral states so that they have the equipment and trained manpower necessary to achieve the desired objectives. User states and donor organizations could make their assistance contingent on enhance cooperation among the three littoral states. They could also make their assistance contingent on each littoral state adopting a plan of action to address the problems in an integrated, cross-sectoral manner. If such conditions are not imposed, most aid and assistance is not likely to achieve the desired objectives.

　

 Article 43 could be used as a vehicle to enter into arrangements between user states and littoral states with respect to all of the proposals in this paper. However, it may not be advisable to insist that the cooperative arrangements be structured as agreements between littoral states and user states as seems to have been envisaged in Article 43. It may be better to adopt a more flexible approach, and make separate arrangements for different types of cooperation. This would make it much easier to give a role to donor agencies, international organizations or bodies and the private sector. It may also be preferable to structure the arrangements in soft-law documents such as action plans or memorandums of understanding rather than in formal written agreements.

　

 Finally, and most important, all proposals to establish and implement cooperative arrangements must not undermine the sovereignty of the littoral states in the Straits and must not be inconsistent with the provisions of 1982 UNCLOS.