Maritime Studies
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Sam Bateman[1]
Inter-regional and intra-regional trade in the APEC region is mainly carried by sea. The ‘archipelagic’ nature of the region and the lack of road or rail infrastructure in East Asia in particular mean there is no alternative mode of transport for regional trade except for high value commodities carried by air. Not surprisingly, most of the world’s top mega-ports are in APEC economies. East Asian seas, particularly the strategic straits of Southeast Asia, are the convergence of a large part of the world’s shipping traffic. Sea transport of goods and passengers is essential in the archipelagoes of Japan, the Philippines and Indonesia.
The extent of shipping traffic, its importance and the unique geographical features of the region present both opportunities and challenges for maritime security. Shipping traffic is channelled along particular routes or sea lanes of communication (SLOCs) and through major ‘choke points’ or ‘bottlenecks’ where it may be most vulnerable to threat. The straits between the Indian and Pacific Oceans through and adjacent to the Indonesian archipelago now constitute the most significant shipping ‘bottleneck’ in the world. Through this area pass the vessels carrying the sources of energy (oil, LNG and LPG) and raw materials essential for the economies of China, Japan, South Korea and Taiwan, as well as the large container ships on the around the world route linking Europe to East Asia. The value of this trade totalled nearly a trillion US dollars in 1994,[2] and it required over half the shipping capacity of the world to move it.[3]
The sea lane from the Arabian Sea to Northeast Asia is a particularly vital shipping route for APEC economies. Kent Calder in his important book, Asia’s Deadly Triangle – How Arms, Energy and Growth threaten to destabilize Asia Pacific, predicted that the current dependency of Northeast Asia on oil imports from the Middle East of 70 per cent could rise to 95 per cent by 2010. He went on to say that:
Should this projected pattern indeed materialize, a growing fleet of heavily laden supertankers will plow east across the Arabian Sea and the Indian Ocean in coming decades, headed for Singapore, Hong Kong, Shanghai, Pusan, and Yokohama. East Asian oil imports from the Middle East could well triple in the next fifteen years alone, to a very substantial share of total world oil consumption.[4]
This paper uses the example of a ‘heavily laden supertanker’ sailing East from the Middle East to Northeast Asia to illustrate the vulnerability of sea lanes and the importance of ensuring their security. The supertanker transits mostly through waters under some form of jurisdiction of one coastal State or another. It is really only in central areas of the Arabian Sea and parts of the Northeast Indian Ocean (or for less than one-fifth of the total duration of its passage) that the vessel will truly be on the ‘high seas’. Ships travelling along the steel corridor between the Malacca and Singapore Straits and Northeast Asia pass almost entirely through the territorial sea or exclusive economic zone (EEZ) of one country or another.
With the vessel sailing mostly through waters under the jurisdiction of a coastal State, the international law of the sea is an important factor for its security. Numerous coastal States have rights and obligations with regard to the passage of the supertanker. The ship itself has certain rights and obligations depending on which type of maritime zone it is travelling through (i.e. territorial sea, archipelagic waters or EEZ) and which navigational regime is applicable. The navigational regimes that apply to its route are described in Annex A.
Threats to sea lanes arise from several sources.[5] They may be categorized as external or internal while some such as natural hazards (e.g. storms, cyclones and fog) are beyond the control of the maritime community. External factors include piracy, terrorism, maritime territorial disputes, regional conflict and coastal State interference (i.e. sanctions or excessive controls over passing traffic). Internal factors are those associated with the ships themselves such as incompetent crews, sub-standard maintenance and illegal activities such as arms trafficking, drug smuggling and illegal movement of people.
The passage of this tanker between the Middle East and Northeast Asia suggests the common interest of regional countries in maintaining the safety and security of merchant shipping. It highlights the vulnerability of shipping to threats, including terrorist attack. The object of this consideration will be to develop some suggestions for regional action to ensure the security of sea lanes. Ships at sea are the focus of this paper rather than when they are in port. It does not address the argument that the globalisation of maritime commerce and the rise of ‘hub ports’ mean that a terrorist attack on a ‘hub port’ would be more disruptive than an attack on a ship at sea.[6] However, a ship that had been seized by terrorists, particularly one with a hazardous or dangerous cargo, could still provide the means of attacking port infrastructure, including the container handling facilities of a ‘hub port’.
Let us join our supertanker as it leaves the Red Sea or Persian Gulf and sets course across the Arabian Sea. It will have entered the Arabian Sea through either the Bab el-Mandab or the Strait of Hormuz. The Bab el-Mandab is the narrow entrance into the Red Sea from the Gulf of Aden. Oil traffic passes through the strait in both directions with loaded tankers from ports in Saudi Arabia in the Red Sea heading towards East Asia and to the Cape of Good Hope and others heading from the Gulf towards the Mediterranean and Western Europe through the Suez Canal. Total oil traffic through the Bab el-Mandab was estimated to be 3.2-3.3 million barrels per day in 2000.[7] The vulnerability of shipping in the confined waters (‘choke points’) of the Bab el-Mandab and the Strait of Hormuz was demonstrated by the suicide small boat attack on the French oil tanker Limburg off the coast of Yemen in October 2002.
The Strait of Hormuz connects the Persian Gulf with the Gulf of Oman and the Arabian Sea and is bordered to the West by Oman and to the East by Iran. It is by far the world’s most important oil choke point with an oil flow estimated in 2000 to be 15.5 million barrels per day.[8] Closure of the Strait of Hormuz would have huge strategic impact on Northeast Asia, North America and Western Europe and it is not surprising that the U.S. has attached such importance to the freedom of navigation through the strait including basing warships at Bahrain inside the Gulf.
The first navigational option for the supertanker after entering the Arabian Sea is the choice of passage through the barrier of islands stretching over 700 nautical miles from roughly 12 degrees North to the equator and comprising the Laccadive Islands under Indian sovereignty and the Republic of Maldives. The main options are the Nine Degree Channel (within the Indian EEZ), the preferred Eight Degree Channel (partly within the EEZ of India and that of the Maldives) and the One and a Half Degree Channel (within the EEZ and archipelagic waters of the Maldives). The actual choice of passage would depend on the strait to be used subsequently for transiting Southeast Asian waters. From October to April and to take account of the prevailing Northeast monsoon, ships using Sunda or Lombok Straits will likely prefer the One and a Half Degree Channel.
After clearing the island chain of the Laccadives and Maldives, the tanker would then pass through the EEZ of Sri Lanka. If heading towards the northern entrance to the Malacca Straits, it may also pass through the territorial sea of Sri Lanka but if heading toward Sunda or Lombok Straits, it will be further offshore. The focal area off Dondra Head, the Southern extremity of Sri Lanka, constitutes a significant ‘choke point’ for shipping transiting between the Suez Canal or the Gulf to the Malacca Strait. In the recent past, the waters off Sri Lanka have witnessed acts of piracy and terrorism mainly initiated by the LTTE (Liberation Tigers of Tamil Eelam),[9] although not so far on vessels sailing past on international voyages.
Figure 1 – Major Asia-Pacific Sea Lanes
The tanker will initially enter the Indonesian EEZ to the West of Sumatra and then probably pass through the Indonesian territorial sea off Northern Sumatra before entering the Malacca Strait itself. Prior to entering the area of the strait, which is less than 24 nautical miles across and the transit passage regime for international straits clearly applies (see Annex A), the ship may pass in and out of the EEZs of Malaysia and Indonesia. The subsequent transit of the narrowest parts of the Malacca and Singapore Straits will take the vessel in and out of the territorial seas of Malaysia, Singapore and Indonesia prior to departure through the EEZs of Malaysia and Indonesia, as well as probably through archipelagic waters of Indonesia. The incidence of piracy and armed attacks against ships has been high in the Malacca and Singapore Straits. Ships are also potentially at risk from terrorist attack.
The route through the Malacca-Singapore Straits is used by about 72 per cent of eastbound loaded tankers. The alternative route through Lombok and Makassar Straits, more suitable for large, deep draught vessels, accounts for the remaining 28 per cent although in terms of deadweight tonnage and volume of oil carried, the share is about even.[10] About 26 tankers per day are estimated to pass through the Malacca Strait.[11]
There is a least depth in the straits of about 25m and ships require an under keel clearance of 3.5m in accordance with the International Maritime Organization’s (IMO’s) Rules for Vessels Navigating through the Straits of Malacca and Singapore. Very large oil tankers over about 250,000dwt will probably be outside these draft limitations. These ships normally use Lombok and Makassar Straits further eastward although this might add about one thousand nautical miles and three days’ steaming to the passage.
The IMO has introduced a mandatory ship reporting scheme for the Malacca and Singapore Straits[12] referred to as STRAITREP,[13] and Indonesia, Malaysia, Singapore and the IMO have also agreed to go ahead with the establishment of a Marine Electronic Highway for the Malacca and Singapore Straits.[14]
This integrated system includes electronic nautical charts, positioning systems, automatic ship identification (AIS) transponders, as well as the provision of meteorological, oceanographic and navigational information. It makes an important contribution to the safety of navigation and security of shipping using the straits and allows for maximum information to be available to ships as well as shore-based users such as the vessel traffic control systems managed by adjacent coastal States.
The U.S. has recognized the potential vulnerability of ships using the Malacca and Singapore Straits by providing escorts for high value American and allied shipping using the straits. The Aceh rebel movement in Sumatra has threatened to attack ships passing through the Strait and Singapore uncovered tentative plans by the Jemaah Islamiyah (JI) movement to attack U.S., ships entering Singapore.[15] Indonesia has recently taken action to suspend innocent passage in respect of certain waters off the troubled province of Aceh.[16]
The serious collision in the northern Malacca Strait in September 1992 involving the supertanker Nagasaki Spirit and the container ship Ocean Blessing may have been the result of a piratical attack on the latter vessel. However, this will never be proven as all onboard were killed in a fire and explosion after the collision.[17] This serious collision, as well as other marine casualties elsewhere in the Malacca and Singapore Straits, illustrates the need for effective traffic management in focal areas and ‘choke points’.
The coastal States adjoining an international strait have considerable service responsibilities towards the vessels passing through their waters (e.g. navigational aids, hydrographic charts and other navigational information, search and rescue services, and marine pollution contingency arrangements) but there are no provisions under international law for any form of cost-recovery. The solution would appear to lie in a regime of shared responsibilities between the littoral and user States under Article 43 of the 1982 UN Convention on the Law of the Sea (LOSC) which provides for cooperation between user States and coastal States for the provision of navigational and safety aids and the prevention, reduction and control of pollution. India has demonstrated its interest in the safety and security of shipping through the straits by assisting the U.S. with escorting high value ships through the strait against the risk of piratical attacks and terrorism. Similarly Japan contributes financially to the maintenance of navigational aids and hydrographic surveys in the Malacca Strait and in recent years has also been providing ships and aircraft from the Japan Coast Guard to assist in anti-piracy measures in Southeast Asia.
If the supertanker is outside the draft limitations of the Malacca and Singapore Straits, it will then route further eastward through the Lombok Strait and passage northwards along one of the archipelagic sea lanes (ASLs) established by Indonesia. Sunda Strait between Sumatra and Java offers the most direct route from the Indian Ocean into the Java Sea but the least depth in this strait is around 27 metres and the area is relatively poorly charted. It is only an alternative for ships that could use the Malacca and Singapore Straits in any case. Deeper draught vessels must use Lombok Strait between the islands of Bali and Lombok and then northwards by the Makassar Strait east of Borneo.
The Lombok and Makassar Straits are wide, deep and navigationally straightforward but ships should transit along the ASLs established by Indonesia and endorsed by the IMO. In 1988 Indonesia reportedly closed the Sunda and Lombok Straits for a period of time leading to strong diplomatic protests from the U.S., Australia and other countries although the circumstances of the closure and Indonesia’s intentions with the act remain unclear.[18] There are no similar arrangements to LOSC Article 43 for burden sharing between user and archipelagic States for maintaining the safety of navigation in ASLs.
The shipping route after clearing Singapore Strait lies north through the South China Sea passing to the west of the ‘dangerous ground’ of the Spratly Islands. The situation with conflicting claims to sovereignty over the islands and reefs of the South China Sea is well known. However, the lack of agreed maritime boundaries and uncertain maritime jurisdiction mean that there are no effective arrangements for ensuring the security of sea lanes in the area. Anecdotal evidence is strong that the incidence of ship-sourced marine pollution in the South China Sea is high because there is no monitoring and surveillance of shipping passing through the area. Even hydrographic surveying has been neglected in the area due to the lack of agreed jurisdiction.
After leaving the South China Sea, most vessels will then use the Taiwan Strait between the Chinese mainland and Taiwan but our supertanker, if bound for Japanese ports may use the Luzon Strait between Taiwan and the Philippines. Taiwan Strait is over 100 nautical miles wide and contains a substantial ‘high seas’ corridor outside of territorial waters but still within the EEZ of the riparian countries. Any conflict between Taiwan and China would likely have a dramatic impact on sea lanes in the area causing shipping traffic to be routed well away from the area. Shipping could also be affected by the conflicting claims to the Senkaku/Diaoyu islands northeast of Taiwan. In the early 1990s frequent piracy attacks were also reported in this area.
Deeper draught vessels after using Lombok and Makassar Straits will then cross the Celebes Sea and proceed east of the Philippines to their destination. However, ships bound for ports in southern China or Taiwan, and others during the Northeast Monsoon season, will use Sibutu Passage off East Sabah and then track across the Sulu Sea exiting the Philippine archipelago through Mindoro Strait.
The Philippine archipelago sits astride major shipping routes from the Americas and the Pacific islands to southern China and Southeast Asia, as well as between northern Australia and the Lombok Strait and Northeast Asia. It is more complex than the Indonesian archipelago with more scattered islands and reefs and less well-defined shipping channels.[19] The Philippines has a complex network of inter-island shipping routes with an already high incidence of major shipping disasters. Shipping routes cross through areas where there are extensive subsistence and commercial fishing operations. Environmental concerns are high. The dangers of ship-sourced marine pollution are likely to lead the Philippines to assert strict controls over the passage of shipping through its archipelago, perhaps even stricter than user States would regard as acceptable under the ASL passage regime.
Providing for the security of this supertanker on its typical passage is truly a multinational enterprise. Numerous countries have an interest in the passage being completed safely. These include the country of destination and the coastal and archipelagic States through whose waters the vessel passes, as well as its flag State and the States of nationality of its owner and crew. However, the countries with potentially the greatest control and influence over the ship’s security (i.e. the coastal and archipelagic States adjacent to its route) have no specific responsibility under international law for ensuring its safety.
Capabilities for sea lane security may be beyond the capacity of some coastal and archipelagic States. Countries face many difficulties in combating illegal activities at sea due to a shortage of trained personnel, the lack of modern equipment, the obsolescence or inadequacy of much national legislation and the weak maritime law enforcement capability of national agencies. Even developed countries with sophisticated maritime patrol and surveillance capabilities have difficulty in adequately policing offshore areas. Cooperation between neighbouring countries, including with the exchange of information on maritime activities, is a relatively ‘low cost’ method of easing the burden on national capabilities.
User States, including the major maritime powers, have sought to be involved in providing security in waters where shipping is at most risk but this has frequently met with resistance from coastal States. There are perceptions that the involvement of user States reflects adversely on the capability of the coastal State and compromises its sovereignty and independence of action. These perceptions have been evident, for example, in the response by Indonesia and Malaysia to proposals from user States for some operational involvement in anti-piracy patrols in the Malacca Straits.
Concerns over sovereignty are probably behind the relatively low level of ratification in the region of the two main international conventions that have implications for sea lane security. These are:
The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (the SUA or Rome Convention), which is the leading international instrument dealing with maritime terrorism. A protocol to the Convention extends its application to offences committed on fixed platforms on the continental shelf (SUAPROT). Sixty-nine States are now parties to the Rome Convention but relatively few of these are in the Asia Pacific.[20]
The Convention on Maritime Search and Rescue (SAR) 1979 covers cooperation between States Parties and SAR organisations with search and rescue operations at sea. Parties agree to establish search and rescue regions and are obliged to provide adequate SAR services for persons in distress around their coasts. With the exception of Singapore, there are no parties to the SAR Convention in Southeast Asia.[21]
The need for regional cooperation to maintain the safety and security of shipping and provide law and order at sea is often talked about but actual operational cooperation falls well short of that desirable. This has to change. While the sensitivities of coastal and archipelagic States to issues of sovereignty must be acknowledged so must also be the interests of user States. Maritime security is an international problem that requires concerted action at the regional level with cooperation between user and coastal States to combat threats to major sea lanes. This would be in line with the spirit of LOSC Article 43 that requires cooperation between user and littoral States in providing navigational safety in international straits.
The importance of regional cooperation to provide for the security of shipping and seaborne trade has been recognised for many years. The ‘Track Two’ Asia-Pacific International SLOC conference process was established in the early 1980s to promote awareness of the strategic importance of shipping and seaborne trade and the importance of cooperation to ensure their security. An initial conference was held in San Francisco in 1982 and since then, conferences have been held at roughly two-yearly intervals. The last was held in Canberra in 2001.[22] Most regional countries are now members of the process.
Maritime awareness is generally lacking in the region. The movements of ships on passage need to be monitored, particularly in coastal or congested waters. Traditionally shipmasters and shipowners have had some resistance to the ‘Big Brother’ approach but this is changing with the mandatory installation of AIS and other requirements of the International Ship and Port Facility Security Code (ISPS Code). However, the shore-side institutional arrangements to manage information on what is happening at sea and to respond to shipping security alerts are missing. This is not just information on shipping activities but might cover also fishing, marine scientific research, oil and gas exploration and exploitation, and so on.
|
|
LNG
Carriers
|
LPG
Carriers
|
LNP
Carriers
|
Chemical
Tankers
|
Oil
Tankers
|
Total
|
|
Brunei
|
173
|
0
|
0
|
2
|
170
|
345
|
|
Indonesia
|
412
|
867
|
94
|
925
|
10324
|
12622
|
|
Malaysia
|
147
|
685
|
7
|
1004
|
4494
|
6337
|
|
Philippines
|
12
|
533
|
2
|
205
|
495
|
1247
|
|
Singapore
|
25
|
894
|
27
|
1231
|
7846
|
10023
|
|
Thailand
|
2
|
127
|
0
|
228
|
979
|
1336
|
|
Total
|
771
|
3106
|
130
|
3595
|
24308
|
31910
|
Notes : Includes domestic voyages
Source : Strategic Maritime Information System (SMIS)
Comprehensive knowledge of what is happening at sea is an essential element of maritime security. At a national level, this is required in waters under some degree of national sovereignty (i.e. internal waters, territorial sea and EEZ, as well as archipelagic waters for an archipelagic State). It is also important to have information on the approaches to those waters. A country’s area of maritime interest extends beyond the areas where it has some degree of sovereignty or has sovereign rights. Background information on the full area of interest is essential to make risk assessments, establish a baseline against which activities out of the ordinary can be assessed and optimise the employment of surveillance and enforcement assets (e.g. ships, aircraft and land-based radars).
Data on maritime activity, to the extent that it exists at present, is available only at a national level. Arrangements for the exchange of maritime information are underdeveloped. In particular, there is not a good database of what ships are moving where in the region and with what cargo. Significant barriers exist to the collection of this data, including commercial confidentiality.
In the mid-1990s, the Information Technology Division of the Australian Defence Science and Technology Organisation (DSTO) developed the Strategic Maritime Information System (SMIS). This was a database of open source, maritime information covering Southeast Asian and Australian waters, including map depictions, maritime boundaries, reports of incidents at sea, port details, data on some 32,000 merchant ships over 1,000 GRT which operate in the region, major routes and shipping movements. Table 1 is an example of the type of information provided by the SMIS. It provides data on the movement of ships with dangerous cargoes in Southeast Asia. The number of movements is impressive (nearly 32,000 in 1993-94) but would be much higher now. This type of data is important for risk assessments and to manage maritime security but unfortunately work on SMIS was suspended several years ago.
It might also be useful to revisit the idea of a Regional Surveillance and Safety Regime (RMSSAR). This was originally suggested for Southeast Asian waters by ISIS Malaysia in 1990. Difficulties identified with its implementation included the lack of any clear commonality of interest between possible member countries, the differences in organisational arrangements for undertaking surveillance in these countries, and regional sensitivities to particular issues, including fishing and disputed maritime claims.[23] However, such a regime could help safeguard the peaceful merchant shipping which is so important to the region; assist in creating a stable maritime regime to permit exploitation of the marine resources of the region; contribute to the preservation of the marine environment; and develop a framework of cooperation that could provide the basis for dealing with higher order contingencies that might arise in the future.
The international law of the sea has significant implications for maritime security in the Asia Pacific. Some regional States have made declarations and statements on signing, ratifying or acceding to the 1982 UN Convention on the Law of the Sea (LOSC) or have domestic legislation that indicate different interpretations of particular Law of the Sea issues.[24]
These differing positions potentially limit the ability of the region to implement effective measures to ensure the security of shipping and seaborne trade and it would be helpful if some common understanding could be reached on these issues.
Shipping routes in East Asia generally pass through coastal or archipelagic waters and are thus vulnerable to coastal State interference as a consequence of national security concerns, domestic instability or local conflict. Furthermore, coastal States could introduce restrictions on coastal shipping traffic ostensibly on the grounds of marine environmental protection but there could also be a security agenda. Some States have declared security zones that extend beyond the territorial sea. Certain aspects of the law of the sea relating to freedoms of navigation are less than clear and not agreed in the region.
A coastal State may temporarily suspend the right of innocent passage through its territorial sea. As has been noted, Indonesia has recently taken such action in respect of waters off the troubled province of Aceh. However, some uncertainty relates to how long a ‘temporary’ suspension might last and also with regard to how this suspension might impact on the freedom of navigation that is normally available through an international strait such as the Malacca Strait adjacent to Aceh.
Effective arrangements for maritime jurisdiction and enforcement, including for cooperation between neighboring countries, are fundamental to good order at sea. They are a significant deterrent to illegal activities at sea. To some extent the incidence of illegal activities at sea is due to deficiencies in existing arrangements, including weak maritime surveillance and enforcement capabilities. The ability of the region to deal with maritime terrorism would be significantly enhanced by improving current arrangements.
Maritime jurisdiction and enforcement are extremely complex, particularly in enclosed and semi-enclosed seas, such as those of East Asia, where maritime boundaries are not agreed. States have exclusive competence relative to matters within their jurisdiction and their jurisdictional competence varies in different maritime zones. Most armed attacks against ships occur in the territorial sea or archipelagic waters of a coastal State and are thus within the territorial jurisdiction of that State. Similarly, acts of maritime terrorism are more likely within territorial seas and archipelagic waters, including international straits. There is no right of visit or arrest in these waters by a warship of another State and the LOSC places no specific obligation on a coastal or archipelagic State to take measures to strengthen maritime security or suppress acts of terrorism in waters under its sovereignty.
Coastguard units may be more suitable than warships for employment in sensitive areas where there are conflicting claims to maritime jurisdiction and/or political tensions between parties. Bangladesh, the Philippines and Vietnam have all established coastguards and now Malaysia and Indonesia are following suit. Japan and Taiwan have both changed the name of an existing service into a coastguard. Coast-guards are being used more widely including as instruments of foreign policy in waters beyond the limits of national jurisdiction (e.g. the anti-piracy operations by the Japan Coastguard in Southeast Asian waters). Some countries might prefer to use their coastguards for cooperative sea lane security rather than their navies. The ultimate objective may well be a regional coast-guard organization to provide for the security of sea lanes. This would be similar to a Japanese proposal several years ago for an international cooperative SLOC security scheme, placing the U.S. at its core and having other regional countries share the responsibilities of areas and functions in accordance with their capabilities and geographic conditions.[25]
The security of regional sea lanes is a vital concern of all APEC economies. As we have seen with the supertanker voyage described in this paper, possible threats to the security of sea lanes are both numerous and varied. Sea lanes between the Arabian Sea and Southeast Asia and in East Asia are particularly significant in terms of both the high level of shipping traffic and their vulnerability. Regional cooperation to ensure their security is fundamental but at present there are many barriers to effective cooperation. The reasons for these barriers must be investigated and overcome.
Frameworks for regional cooperation could be improved. Coastal and port States generally accept their responsibility to provide security for shipping in their waters but many lack the necessary capabilities. They should be prepared to accept operational assistance from user States, as well as with training and resources to build their national capacity. The LOSC provides the basic framework for this cooperation but it is ambiguous and incomplete in some respects. Regional protocols could be developed to redress these deficiencies. The overall aim should be as much consistency as possible between national jurisdictions to ensure a stable maritime regime in the region and a seamless system of regional sea lanes.
Enhanced dialogue between agencies both at the national and regional levels is required (particularly between navies, coastguards, and national shipping authorities). Habits of cooperation and dialogue, both Track One and Track Two, are fundamental to building the regional capacity for sea lane security. Maritime awareness is another important element. Risk assessments and identification of major vulnerabilities require good data on shipping routes and cargoes. Consideration could be given to establishing systems, such as RMSSAR and/or SMIS, to cover the most vital sea lanes in the region.
Lastly, countries need to move urgently to resolve their maritime territorial disputes. If these disputes cannot be resolved then some alternative approach to ensuring law and order at sea is required that is not based on sovereignty and sovereign rights. This might involve cooperative management of maritime surveillance and enforcement in a particular area. The South and East China Seas are areas where this approach is most necessary. It would be a powerful deterrent to piracy and maritime terrorism.
The sea lane between the Arabian Sea and Northeast Asia passes mostly through zones that under some form of jurisdiction of one coastal State or another. The following is a summary of the main navigational regimes under the international Law of the Sea that are applicable to the different zones.
Under the 1982 UN Convention on the Law of the Sea (LOSC), ships of all States enjoy the right of innocent passage through the territorial seas of other States. However, the LOSC also provides that ‘tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials’ may be required to confine their passage to designated sea lanes and traffic separation schemes.[26] Furthermore, ‘Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.’[27]
The coastal State may adopt laws and regulations for the safety of navigation and the regulation of maritime traffic. Innocent passage is the most restrictive navigational regime. It may be suspended temporarily in specified areas of the territorial sea if such suspension is considered necessary for the security of the coastal State, including for weapons exercises.[28]
LOSC Part III establishes a special regime to apply when a strait used for international navigation is wholly or in part contained within the territorial sea of one or more States. The straits’ transit passage regime applies to ‘straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone,’[29] or in order to enter or leave a State bordering the strait. It is available to all ships and aircraft although it may now be regarded as State practice that vessels carrying highly dangerous cargoes (e.g. plutonium) do not exercise the right of transit passage.
While transit passage may not be suspended, transiting ships must comply with generally accepted international regulations, procedures, and practices for safety at sea and for the prevention, reduction, and control of pollution from ships. The States bordering these straits may introduce appropriate regulations although these must be non-discriminatory in their application.
Straits in the APEC region where transit passage might apply include:
Straits involving passage through the territorial sea of only one country (e.g. the Cheju Strait between Cheju Island and the Korean peninsula, the Tsugaru Strait between Hokkaido and Honshu in Japan, and Bass Strait between Tasmania and mainland Australia).
Straits passing through the territorial sea of two or more countries typically when the coast of one country is opposite to the coast of another. In some cases the coasts of two States littoral to a strait may be adjacent to one another (e.g. the Straits of Malacca and Singapore which pass through the territorial seas of Malaysia, Indonesia and Singapore, the Soya Strait between Japan and Russia, and Torres Strait between Australia and Papua New Guinea).
LOSC Part IV established the regime of the archipelagic State which allows States that are constituted wholly of one or more groups of islands and meet certain other criteria specified in the Convention to draw archipelagic baselines joining the outermost islands and drying reefs. The Maldives, Indonesia and the Philippines are archipelagic States along the route of our supertanker. Papua New Guinea, Solomon Islands, Fiji and Vanuatu are other archipelagic States in the APEC region.
The archipelagic State exercises full sovereignty over archipelagic waters qualified only by the regime of archipelagic sea lanes (ASL) passage, which allows ships of all nations the right of ‘continuous, expeditious and unobstructed transit’ through archipelagic waters along sea lanes, which may be designated by the archipelagic State.[30] Indonesia is the only archipelagic State that has so far designated sea lanes. Archipelagic States potentially have similar controls over tankers and other vessels with dangerous cargoes exercising the right of ASL passage to those applying to transit passage. ASLs are of fixed dimensions with ships and aircraft not able to deviate more than 25 nautical miles either side of fixed continuous axis lines from the entry points of passage to the exit points.[31]
If sea lanes are not designated, then the right of ASL passage may be exercised through the routes normally used for international navigation.[32] Outside these sea lanes, ships of all nations have the right of innocent passage only and must abide by the more restrictive provisions of that more restrictive regime, including recognition of the principle that the archipelagic State may temporarily suspend innocent passage.[33]
International straits in the region where the ASL passage regime applies rather than the transit passage regime include:
Straits leading into the archipelagic waters of an archipelagic State (e.g. the San Bernardino and Surigao Straits into the Philippines and the Sunda, Lombok and Makassar Straits into the Indonesian archipelago). A ship to enter one of these straits must first pass through the territorial sea of the archipelagic State before it enters archipelagic waters. These straits do not meet the geographical criterion for transit passage because they do not facilitate international navigation between one part of the high seas or EEZ and another part of the high seas or EEZ.
Straits entirely within archipelagic waters (e.g. the Vitiaz Strait between New Britain and mainland Papua New Guinea, the Tablas Strait East of Mindoro in the Philippines, and the Banka and Carimata Straits between Sumatra and Borneo in Indonesia).
The EEZ regime established under the LOSC Part V grants coastal States rights over the living and non-living resources of the 200 nautical mile EEZ but also imposes certain obligations on them to preserve and protect the marine environment.[34] Otherwise, the high seas freedoms of navigation are considered to prevail although LOSC Article 220 grants certain enforcement powers to the coastal State in respect of the prevention, reduction and control of pollution of vessels. This could lead to laws and regulations that infringe upon navigational rights and freedoms, and the United States, for example, has introduced legislation in its Oil Pollution Act 1990 (OPA 90) to restrict tanker operations in its EEZ.[35]
Large maritime areas of the APEC region are claimed as exclusive economic zone (EEZ). Subject to the resource-related rights and environmental protection obligations of the coastal State, the freedoms of navigation and overflight in an EEZ are the same as those on the high seas. However, some countries argue that they may legitimately establish security zones that extend into their EEZ, and/or have claimed that other States are not authorized to carry out military exercises or manoeuvres in the EEZ without their consent. Authority to impose these restrictions is not generally accepted. However, they remain as a potential limitation on the ability of a warship of one State to board and search a vessel in the EEZ of another if the vessel is suspected of carrying terrorists or being engaged in terrorist activities.
[1] Dr Sam Bateman is a retired Commodore (one star) in the Royal Australian Navy and now a Professorial Research Fellow at the Centre for Maritime Policy, University of Wollongong, NSW 2522, Australia (email address: sbateman@uow.edu.au). He is a Co-chair of the CSCAP Maritime Cooperation Working Group and a member of the International SLOC Study Group. This paper was presented at the APEC High-Level Meeting on Maritime Security Cooperation held in Manila 8-9 September.
[2] HJ Kenny, An Analysis of Possible Threats to Shipping in Key Southeast Asian Sea Lanes, CNA Occasional Paper, Alexandra, VA, Center for Naval Analyses, February 1996, p. 16.
[3] JH Noer with D Gregory, Chokepoints: Maritime Economic Concerns in Southeast Asia, Washington DC, National Defense University Press, 1996, p. 8.
[4] KE Calder, Asia’s Deadly Triangle – How Arms, Energy and Growth threaten to destabilize Asia Pacific, London, Nicholas Brealey Publishing, 1996, p. 59.
[5] V Sakhuja, ‘Contemporary Piracy, Terrorism and Disorder at Sea: Challenges for Sea-Lane Security in the Indian Ocean’, Maritime Studies 127, November/December 2002, pp. 2-6.
[6] DY Coulter, ‘Globalization of Maritime Commerce: The Rise of Hub Ports’, in SJ Tangredi (ed.), Globalization and Maritime Power, Washington DC, National University Press, 2002, pp. 133-141.
[7] U.S. Energy Information Administration, World Oil Transit Chokepoints, November 2001, http://www.eia. doe.gov/emeu/cabs/choke.html
[8] ibid.
[9] Sakhuja, ‘Contemporary Piracy, Terrorism and Disorder at Sea’, p. 2.
[10] Chia Lin Sien, ‘The Strait of Malacca as a Tanker Pipeline: Some Considerations for Northeast Asian Users,’ Paper to International Conference on The Strait of Malacca: Some Considerations for Northeast Asian Users, Malaysian Institute of Maritime Affairs, Kuala Lumpur, 14-15 June 1994, p. 9.
[11] ibid.
[12] Resolution MSC 73(69) adopted by IMO on 29 May 1998.
[13] Parry Oei, ‘Review of Recent Significant Technologies and Initiatives Implemented to Enhance Navigational Safety and Protect the Marine Environment in the Straits of Singapore and Malacca,’ A Forbes (ed.), The Strategic Importance of Seaborne Trade and Shipping, Papers in Australian Maritime Affairs No. 10, Canberra. RAN Sea Power Centre, 2003, p. 142.
[14] IMO Newsroom, ‘First phase of East Asia’s Marine Electronic Highway takes off,’ http://www.imo.org/ Newsroom, 24 March 2001.
[15] Dr Tony Tan Keng Yam, Deputy Prime Minister and Minister for Defence, Singapore, Paper to the 2nd IISS Asia Security Conference: The Shangri-La Dialogue, Singapore, 1 June 2003.
[16] ‘Aceh waters closed to foreign ships,’ The Jakarta Post, 4 June 2003.
[17] P Chalk, ‘Contemporary Maritime Piracy in Southeast Asia,’ Studies in Conflict and Terrorism, vol. 21, no. 1, January-March 1998, p. 97.
[18] DR Rothwell, ‘The Indonesian Straits Incident: Transit or archipelagic sea lanes passage,’ Marine Policy, vol. 14, no. 6, November 1990, pp. 491-506.
[19] For a description of the special characteristics of the archipelagic environment of the Philippines see J Batongbacal, ‘Archipelagic Sea-lanes and Transit Passage Through Straits: Shared Responsibilities are Essential to Implementation,’ Forbes, op. cit., pp. 99-111.
[20] 90 States are now parties to the SUA Convention and its Protocol, including in the Asia-Pacific region: Australia, Canada, Chile, China, India, Japan, Marshall Islands, New Zealand, Pakistan, Russia, Seychelles, Sri Lanka (convention only), United States and Vanuatu.
[21] 77 States are now party to the SAR Convention. The status of IMO Conventions as at 31 July 2003 is available through the IMO website at www.imo.org.
[22] The proceedings of the Canberra conference were published in Forbes, op. cit.
[23] D Ball and S Bateman, ‘An Australian Perspective on Maritime CSBMs in the Asia-Pacific Region,’ in A Mack (ed.), A Peaceful Ocean? Maritime Security in the Pacific in the Post-Cold War Era, St. Leonards, Allen & Unwin, 1993, pp. 158-185. Also, Captain R Swinnerton RAN and D Ball, ‘A Regional Regime for Maritime Surveillance, Safety and Information Exchanges,’ Maritime Studies, no. 78, September/October 1994, pp. 1-15.
[24] All Council for Security Cooperation in the Asia Pacific [CSCAP] members have now ratified UNCLOS with the exception of Cambodia, Canada, North Korea, Thailand and the United States. The European Community has formally confirmed its participation in UNCLOS. The declarations, and statements made by States on signing, ratifying or acceding to UNCLOS are available at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm.
[25] Seo-Hang Lee, ‘Security of East Asian SLOCs and the Role of Navies,’ Forbes, op. cit., p. 181.
[26] LOSC Article 22(2).
[27] LOSC Article 23.
[28] LOSC Article 25(3).
[29] LOSC Article 37.
[30] LOSC Article 53 (1), (2) and (3).
[31] LOSC Article 53(5).
[32] LOSC Article 53 (12).
[33] LOSC Article 52 (2).
[34] LOSC Article 56.
[35] For a discussion of OPA 90 see JE Noyes, ‘The Oil Pollution Act of 1990,’ International Journal of Estuarine and Coastal Law, vol. 7, 1992, pp. 43-56; and TJ Wagner, ‘The Oil Pollution Act of 1990: an analysis,’ Journal of Maritime Law and Commerce, vol. 21, 1990, pp. 569-587.
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