The Piracy In South East Asia Especially In The Malacca Strait The Japan S Role In Eradicating It By Creating A Transnational Cooperation In South East Asia
If by peaceful Asia one understands all the zone of the Far East, the Indian sub-continent and Oceania, the Southeast Asia includes eleven countries. Indeed, Myanmar, Vietnam, Laos, Cambodia, Thailand, Eastern Timor, Indonesia, the Philippines, Singapore and the Sultanate of Brunei belong to this same entity. This unit is not based on territorial continuity, but on the importance of the sea. With the exception of Laos, all the countries of the zone have maritime frontages, sometimes particularly important because of the presence of many archipelagos. If this characteristic is at the origin of conflict claims concerning of the questions of maritime sovereignty, it is also the base of the common identity of the area. Which is with the Malacca strait in particular, is a major axis of the world maritime transport. The stakes related to this part of the sphere are capital for the correct operation of the trade but also for the environment and the safety of this area.
This paper will try to analyse the regional policy responses to the piracy and evaluates the role of Japan in the emerging anti piracy-regime. It asserts that Japan, with its peace constitution, global economic reach, powerful status, and a maritime history is ideally positioned to meet this challenge and fulfil Yoichi Funabashi’s vision of Japan as a “global civilian power”. It also asserts that law enforcement agencies are more likely to be the facilitators of regional maritime co-operation in the fight against piracy.
International regimes and piracy on the maritime realm
For much of the twentieth century, international scholarship has largely neglected the maritime realm. It was the domain of international lawyers, maritime transport specialists or environmentalists. Maritime issues were viewed as “soft politics” in the mind of politicians, playing a minor supporting role in international order matters.
Another factor is that the private interests used the freedom of see as a key concept to insure an open trading system. The internationalisation of the maritime transport sector in the mid-nineteenth century produced “an international regime compromised of a hybrid of public and private authorities”. So based on the concept of the freedom of the sea, the international transport industry evolved with a little or no government involvement.
But contemporary this concept seamed to be dangerous to global welfare and environmental order. The rapid expansion of international trading, the depletion of fisheries, the extraction of natural resources and the unset state jurisdiction have made the maritime environment more and more conflictual. Thus there is an increasing trend of sea’s regulation. We can assert that with for example, the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS), which in effect in 1994, and which provides solution for resolution of many maritime issues with the arbitration of the international tribunal of law of the sea.
The 1982 UNCLOS is one of the most significant regimes. Its primary objectives are to manage ocean and resources. A key principle of the usage of ocean is the freedom of the high seas which is “not a self containment legal principle, but is ancillary to and depend on upon another norm: the right to commerce and communication”. So any damage intentional or otherwise will be an infringement of this norm, which is a key concept of the infrastructure of modern capitalism.
Therefore the piracy is an impediment to the right to commerce and communication. The article 100 of the 1982 UNCLOS calls all states concern by this problem “to co-operate to the fullest extent in the repression of piracy in the high seas or in any other place outside the jurisdiction of any state”. By the time, we can notice an increasing importance of the problem of the piracy with an augmentation of the number of international customary law which involves the duty to countries to repress it. At first there was the Harvard Agreement in 1932, then the Convention on High Seas 1958 and in 1982 the UNCLOS. But there are, however, no clear guidelines to set a good co-operation “fullest extent” between states.
The causes of piracy’s persistence
There are five characteristics for the piracy in South East Asia: human character, geography, economics, state-pirate interactions, and ideas and actions of political communities. But there are three points that underlines the causes of the persistence of the piracy in South East Asia and more particularly in the Malacca strait.
First of all, the economic costs of piracy are minimal if you compare it to the costs of the eradication of the piracy, and the budget and the policy directives are unlikely to be forthcoming. This is even truer in a region where the maritime forces are focusing on the activities that severely impacting on the state integrity, as for example the military action of Indonesia against the secessionists in Aceh.
In a second time, piracy also flourish when states can’t already manage their own internal problems of security, so the authority over the seas come for them in second rank and they often need the international co-operation to effectively suppressing the piracy.
To finish with, as the territorial order is a major concern for sovereign states, war periods, political turmoil or economic crisis give the opportunities for less scrupulous people and the poverty stricken to take advantage of states weakness to provide human security and so it allows the increase of piracy as we could see after the financial crisis in 1997, which involved the increase of poverty and dissatisfaction in fiscal redistribution which have provided a fertile ground to for violent political resistance and crime such as piracy.
Is the piracy a serious threat for regional security?
Three kind of threat for security can be distinguished because of the piracy, at first the sea lanes security, then the territorial security and the environmental issues.
Table 1: World Containers Traffic between 1900 and 1997 (in number of containers)
Region 1990 Part in % 1997 Part in % Annual growth rate
North America 16.7 19.5 24.5 14.4 5.6
Occidental Europe 22.4 26.2 38.6 22.7 4.9
Asia 37.9 44.3 81.7 48.1 12.8
North East Asia 23 26.9 47.8 28.1 11
South East Asia 9.6 11.2 25.6 15 15
Middle East 3.5 4.1 8 4.7 12.5
Southern Asia 1.8 2.1 4.3 4.3 13.2
South America 4.8 5.6 11.5 6.8 13.3
Africa 1.8 1.8 3.2 2 8.9
Central Europe 0.4 0.4 0.6 0.38 4.8
Oceania 2.1 2.1 2.4 1.5 4.2
Others 2.1 2.1 2.5 1.6 8.7
World Total 85.6 169.9 8.5
Sources: Containerization International yearbook (1996), Chia, Goh & Tongzon (2003)
The Malacca/ Singapore Strait such as South China Sea which knows the same problem are two of the world busiest sea lanes. It is estimated that 41000 ships or vessels pass through these sea lane every year. This asserts the heavy dependence of East Asia’s economy on this part of the globe to insure the good operation of the international trading (see table 1 above). Sea lane use will increase following the growth’s pattern of North East Asia. Thus piracy could impact on the free passage of trade and so potentially slowing the economic welfare of this area as well as disrupt the delivery of key energy resources to those countries.
After the sea lane security, an important element of South East Asian security is the issue of territorial integrity. For a major part of those countries, the determination of the boundaries is source of conflict as the problem happened in the South China Sea for the dispute about Daiyou and Senkaku Islands. The maritime boundaries disputes or the offshore territorial claims, account for one third of the potential conflicts in this area. And the introduction of the 1982 UNCLOS in 1994 has turned the attention of states to claim maritime territories and resources zones. And this is reflected in naval budget emphasizing the acquisition of offshore surveillance such as vessels and aircrafts8. In this context the piracy poses the problem of threat for national security, because it signals to the neighbour countries the weakness in the capacity to maintain sovereign integrity.
There is also the important threat of piratical acts which would involve a major environmental accident. There are International Maritime Bureau (IMB) reports on ships which had been attack and left without anyone in on board enhancing the possibility, in particular in a narrow sea lane such as the Malacca strait, for vessels like that to run aground. What would the consequences of a fully laden tanker se sunk? The result of such an event for the coastal communities and the fishing industry in general would be disastrous, without to the effect on the navigation in this area.
The counter piracy efforts from the institutions in South East Asia
The outbreak of piracy in the straits of Malacca/ Singapore in the early 1990s led Indonesia, Malaysian and Singapore to institute a number of counter piracy initiatives. These initiatives included an improvement of information exchange and a co-operation between law enforcement agencies and the co-ordination of surveillance patrols by maritime police and naval forces. In addition, some bilateral arrangements were implemented such as the Malaysia-Philippines Memorandum of Understanding and Malaysia also reactivated the joint naval exercise with the Indonesia. Although these arrangements initially improved the efficiency of public forces in reducing the piracy attacks, eradication of this phenomenon has not been achieved.
Indeed, the financial crisis involved the return of greater virulence of the piracy. The economic and political fallout led to a breakdown of law and institutions. The crisis enhanced the severe reduction in defence spending which reduced the effectiveness of maritime co-operative arrangements. And military were widely suspected to support the militia during this period.
Association of Southeast Asian Nations (ASEAN)
There this traditional concept of sovereignty in ASEAN which involve the non intervention on the policy between each others. That is why to combat transnational crime; ASEAN has developed numerous initiatives trough different institutional bodies such as the ASEAN Ministerial Meeting on Transnational Crime (AMMTC), the ASEAN Finance Ministers Meeting (AFMM), the ASEAN Chiefs of National Police (ASEANAPOL) and the ASEAN Senior Officials on Drugs Matters (ASOD).
On the 20 December 1997, for the ASEAN Ministers of Interiors/Home affairs meeting, the different ministers of each country discussed about the way to develop the approaches to fight transnational crime such as piracy, through regional collaboration and international co-operation. They set the ASEAN Declaration on Transnational Crime. That after this meeting, that was established the ASEAN Ministerial Meeting on Transnational Crime (AMMTC). And in June 1999, the AMMTC adopted the ASEAN Plan Of Action (POA) to fight against the transnational crime.
The Plan Of Action involves the support ASEAN member countries efforts to combat transnational crime from the national and bilateral levels to the regional dimension and strengthening regional commitments. This plan includes an increase in transnational information exchanges, the co-operation in legal and law enforcement matters between the countries of ASEAN, an institutional capacity building and also an extra regional co-operation.
There is also an other key development by the establishing of the ASEAN Centre foe Combating Transnational Crime (ACTC), for the promotion of data resource sharing and the assistance in the implementation of programme activities which is outlined in the Plan of Action mentioned earlier. The ACTC is also in charge of information on national legislation, regulatory measures and jurisprudence of individual member countries.
In May 2002 was held the ASEAN Senior Officials Meeting (SOM), where they discussed in priority about the harmonisation of national laws to combat the transnational crime including terrorism and piracy. The harmonisation of the laws between all those countries will bring a better transnational co-operation with a greater likelihood of successful prosecutions. Malaysia has been the most opponent to an external intervention and initially resisted to Japan anti piracy initiatives. Whereas this an important step forward for ASEAN. Although piracy was not the impetus for the policy shift, it had been the beginning and a benchmark for a possibility of intervention.
ASEAN Regional Forum (ARF)
The ASEAN Regional Forum adopted the ASEAN way, underlining the importance of processing to build a dense network of relations between all the members countries. They did that through confidence building measures (CBMs), preventive diplomacy and developing approaches to conflicts by constructing a habits of dialogue. The ARF develop the notion dialogue to increase co-operative security more than collective defence. And then facilitate confidence building between countries to permit the peaceful resolution of disputes. The piracy issue had been discuss during the ARF Maritime Senior Officials in Honolulu in 1999. This meeting encouraging countries to ratify maritime conventions and increase the piracy measures. Then in 2000 ARF set the Expert’s Group Meeting on Transnational Crime focusing on piracy issues. But the ASEAN and ARF adherence to the principle of non intervention still a main impediment to well coordinated regional response to maritime conflicts that why a more co-operative regional security measures have not forthcoming. And this had been illustrated by the reluctance of ASEAN to collectively address the Asian financial and East Timor crises.
Unlike in Europe, the maritime geography of Southeast Asia makes the relationship between all the countries not as easy. That is one of the causes of problem to solve jurisdictional conflicts. Nevertheless given the exigencies of economic crises, political instability or environmental degradation, there have been growing calls to change the approach of the principle of non intervention and including the notion of constructive intervention and flexible engagement. 35
Asia-Pacific Economic Co-operation
Through is Transportation Working Group (TWG), APEC established the Expert Group on maritime Safety. And in 1997, the TWG tabled on the identified safety issues and problem in the region. It includes:
– The completion of an interactive web-based Port data base.
– The endorsement of the mission statement for maritime initiative to promote an efficient, safe and competitive operating environment transport in the region.
– The completion of an inventory of existing regional co operation arrangements with respect to oil spill preparedness and response.
– The joint policy statement on satellite navigation and communication system establishing various co operative actions to facilitate the implementation of satellite-based navigation and communication system in the region, and the establishment of an advisory committee to monitor actions.
– The Marine Resource Conservation Working group.
The port data base and the satellite based navigation systems provide an important mechanism to combat piracy.
Council for Security Co-operation in the Asia Pacific (CSCAP)
The Council for Security Co-operation in the Asia Pacific has a number of working group. But two of them are directly involve in maritime and transnational crime issues. The Maritime Co-operation Group has been regularly each year since 1995 to discuss about maritime safety issues, resources conservation, oceans governance and unlawful activities at sea. They set in 1998 guidelines for a Maritime Regime Co-operation; principles were developed regarding to the co-ordination of maritime enforcement activities. And in 2000 in Beijing meeting they agreed to a more detailed CSCAP Memorandum on co operation for law and order at sea.
The interest and role of Japan in the combat against piracy
Japan’s navy and merchant fleet has always been really important to the development of Japanese state and its economic superpower status. Japanese’s navy was the first in Asia to defeat a European major power in the Russo-Japanese War of 1905. This event is a key for the foundation of Japanese nationalism and its imperialism adventures. The Japanese navy was viewed as the pillar of the protection of the sea lines of communication.
But since the Second World War, has been prohibited from developing offensive military forces, in the Japan’s constitution article 9, which says:
“Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim or the preceding paragraph, land, sea and air force as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.” 39
After 1991 and the first war in Iraq, the Japan stop its passive foreign policy and embarked on a more and more proactive and assertive profile in the resolution of security issues. This has gathered considerable momentum since September 11, 2001 and the terrorist attack in United States. For example the recent passing of legislation on war contingencies expands the participatory role of Japan’s self defence forces (SDF) in military action outside the country. This legislation allows Japanese forces to operate not only in war time but also in response to terrorist incidents, kidnapping, abduction and all the other situations that threaten the life of Japanese nationals and prosperity. And we can also notice that Japan got the third most important military budget (US $42 billion) after USA and Russia an also the third largest navy in the world with the most sophisticated US destroyer.
The Japan and the security at sea
The general lack of an adequate indigenous response has provided an opportunity for leadership by Japan which has had more than 140 of its ships attacked over the past eleven years. The Table 2 shows the evolution of the number of attacks for the period 1998-2003.
Recorded Piracy Attacks
2003 2002 2001 2000 1999 1998
Global attacks 445 370 335 469 300 202
Attacks in Southeast Asia 189 170 170 257 167 99
Attacks against ships related
to Japan 12 16 10 31 39 19
SOURCES: IMB, Piracy and Armed Robbery against Ships Annual Report, 1 Jan–30 Dec
2003, Jan 2004, p. 5; Japan, Ministry of Foreign Affairs, Diplomatic Bluebook
2003, p. 176; and meeting with JCG, International Criminal Investigation Division,
5 March 2004.
In 2001, Japan established the Japan Coast Guard (JCA) which was the Japan Maritime Safety Agency since 1948. This organisation is really important and powerful. It is a key tool in the Japanese action and initiatives in combating the piracy in Southeast Asia. Indeed, the Japan Coast Guard’s hardware is formidable in regional terms and has an annual budget larger than most Asian navies. They have 12700 active personnel, 521 vessels and 75 aircrafts. The Japan Coast Guard is a well managed organisation with a wide ranging experience in dealing with transnational maritime threats and by the time had acquired an important institutional knowledge to solve those issues.
The Japan’s counter piracy initiatives
Why Japan is that much involve in the counter piracy action? There some key factors underpinning Japan’s proactive policy in combating the piracy in Southeast and East Asia. Those key factors are:
– The Japan’s dependence on sea borne trade and resources which is capital to the Japan economy.
– The opportunity to make a physical contribution to regional security,
– The opportunity to provide to Japan a better image and prestige in Asia and in the world in general,
– And it helped Japan to get a permanent seat at the United Nations Security Council.
The private sector has initiated security measures since the early 80’s. Whereas, the policy makers took conscience of this problem later in the early 90’s because it was not a priority before. In 1993, the Japan had informal talks with China to face the problem of piracy in the East China Sea. But most of the initiatives against piracy occurred in the mid 90’s. In 1995, the Japan Defence Agency (JDA) published the national defence program outline (NDPO) which sought an increased military role for the Self Defence Forces in responding t unconventional security threats such as maritime piracy or terrorism.
Japan was galvanized into taking more robust action following a number of High Profile Sea jacking affecting Japanese interest with for example, the Petro Ranger, or Alondra Rainbow incidents. In 1999, the Nippon Foundation lobbied the Japanese government to implement the measures against piracy and the former Prime Minister Obuchi broached the issue at the ASEAN Leaders summit the same year. He proposed the development of joint patrols by the region’s national coast guards, the increase of information exchanges between the countries and offers a financial assistance. Those counter piracy initiatives had been well received by the ASEAN leaders. Tokyo contributed to the joint patrols but only with civilian Japanese cost Guard rather than the maritime Self Defence Forces (SDF). This ameliorated most regional concerns of a resurgent militaristic Japan.
In April 2000, the Regional Conference on Combating Piracy and Armed Robbery against ship was held in Tokyo. There the coast guards chiefs and the representatives of maritime organisations from fifteen countries including Brunei, Cambodia, China, Hong Kong, India, Indonesia, Japan, Laos, Malaysia, Myanmar, Philippines, Republic of Korea, Singapore, Thailand and Vietnam agreed to a non binding resolution pledging to step up the co operation against piracy and armed robbery on the high seas. The areas of co operation include:
– enhancement of law enforcement activities;
– improved report procedures;
– bilateral or multilateral assistance in investigation;
– technical co operation;
– procedures for interception an seizure;
– and information exchanges
In November 2000, Japan held joint patrols with India and Malaysia and in 2001 a Japan coast guard vessel visited Singapore, the Philippines and Thailand. A Japan coast guard aircraft were sends to Thailand and Philippines as part of the joint activities against piracy. In 2002 they sent aircraft to Brunei, Indonesia, the Philippines, Vietnam, Malaysia and Singapore and some vessels visited Indonesia, Brunei, India and Singapore. We can also notice that for a series of expert meetings on piracy and armed robbery were held in Bangkok in 2001, in Kuala Lumpur in2002 and in Manila in 2003. All of those meeting were supported by the Nippon Foundation. These meetings evaluated the joint patrol exercises and assists in the development of equipment and materials, as well as improved the information network between countries.
One the most important actors in the development of Japan’s counter piracy initiatives is the Ministry of Foreign Affairs which is also an important broker for this effort. The MOFA’s policies to promote co operation amongst Asian countries in the fight against piracy are:
– examine and follow up the regional co operation agreements on anti piracy measures
– to support the poverty counter measures in areas where piratical attacks occur frequently;
– to support the formation of coast guard agencies, focusing on human resources development and technical assistance; and
– to support ship industry activities that promote ship and port security.
Japan’s counter piracy initiatives have had some successes like the narrow co operation with Indonesia which an important partner in the combat against piracy in Malacca/Singapore strait. The Government of Indonesia has not been able to exercise sufficient control as it lacks the high-speed boats necessary for pursuing pirate ships, and it has to cover vast sea areas. The Government of Indonesia therefore needs to establish a maritime security system by building adequate patrol vessels. Thus, the Indonesian government has sought Japanese technical and financial assistance in creating a coast guard agency. And in 2003, seniors’ officials from Indonesian Ministry of National Development Planning (BAPPENAS), the Marine and Air Police (POLAIDRUD) and the Directorate General of Sea Communications (DGSC) visited Japan to study JCG operations. And after that, the POLAIDRUD and the DGSC had merged into a newly established Indonesian Coast Guard (ICG). In June 2005, the Government of Japan has decided to extend to the Government of the Republic of Indonesia a grant aid up to a total of 1,921 million yen for the project for Construction of Vessels for the Prevention of Piracy, Maritime Terrorism and Proliferation of Weapons. The project will provide Indonesia with three vessels to be deployed by the Marine Police of the Provinces of Riau and North Sumatra, and also by the Directorate Marine Police of the Indonesian National Police in Jakarta. These vessels will be used to prevent piracy, maritime terrorism and proliferation of weapons in the Strait of Malacca. These developments suggest a shift from confidence building measures to increase levels of co operation and more vigorous individual states actions to fight against piracy. It had been illustrated by the speech of the Chief of Philippines coast guard captain Wilfredo Tamayo, who said:
“Such co operation is the only solution when piracy transcends borders, when piracy comes hand in hand with economic, political and environmental issues and when piracy blends with other transnational crimes, foremost of which is maritime terrorism”
Japan is undoubtedly a major maritime power in the region and is well equipped to continue to set its leadership role in regional maritime affairs. The significance of Japan’s contributions in the evolving piracy regime had been really important. Japan has long desired to play a regional security role commensurate with its economic power and combating piracy is the beginning of a broader framework to safeguard its strategic and economic interests. The key to this policy is the use of civilian maritime enforcement agencies, rather than the military power what could have been a brake to the confidence building.
Although, the states of the ASEAN whose territorial waters form the strait of Malacca did not agree for an external intervention at first, because of the principle of sovereignty and non intervention. Japan has succeed by its foreign policy to achieve a process of Co operation between all the stakes related by the problem of the piracy, to permit the formation of institutional entities for each country concerned, while harmonizing the laws and the networking of information between those same countries. Those institutions will be able in the future to fight the piracy in a better way. But the greatest success of Japan in its foreign policy had been to enhance the common identity in this area. That can be the impulse and the model for the co operation between countries to solve all the other problematics and conflicts in Southeast Asia.
– Tokyo’s Depression Diplomacy
Yoichi Funabashi : http://www.foreignaffairs.org/19981101faessay1430/yoishi-funabashi/tokyo-s-depression-diplomacy.html
– Claire Cutler, Virginia Haufler, Tony Porter, Private Authority and International Affairs. State University of New York Press: Albany 1999.
– United Nations: UNCLOS
– Ruth Lapidoth, Les dÃ©troits en droit international, Paris, Pedone, 1972 (137 pp.)17
– D. Urquhart, “ACEH closure won’t affect Malacca straits traffic: Insa, but US navy warns shift in resources may lead to more piracy elsewhere” business time 16 June 2003
– The Japanese ship owners’ association web site: http://www.jsanet.or.jp/e/index.html
-Professor Ji Guoxing “SLOC Security in the Asia Pacific” 2000 http://community.middlebury.edu/~scs/docs/Ji%20Guoxing-SLOC%20Security%20in%20the%20Asia%20Pacific.htm
– http://www.iseas.edu.sg/20thsl.pdf, http://www.iseas.edu.sg/nlissue3.pdf (Singapore: institute of Southeast Asia studies) and many other articles
– Japan’s constitution at : http://www.kantei.go.jp/foreign/constitution_and_governement_of_japan/constitution_e.html
– http://www.globalsecurity.org/military/library/news/2005/06/mil-050605-afps01.htm, and other articles.
– Japanese coast guard: www.kaiho.or.jp
– Japan Defence Agency: http://www.jda.go.jp
– National Institute of Defence study: http://www.iiss.org
– Japan shipping association: http://www.jsanet.or.jp
– “Japan to hold Anti piracy drills with Malaysia, India”: http://www.businesstimes.asia1.com.sg
-http://www.businesstimes.com.sg/sub/shippingtimes/story/0,4574,232804,00.html and other articles.
– Japan’s Ministry of foreign affairs at: http://www.mofa.go.jp
-“SECURING THE STRAITS – SOME NEW MOVES” by Raakhee Suryaprakash
-“Internal Conflict and Regional Security in Asia and the Pacific” by Benjamin Reilly