- Email: [email protected]
Multilateralism in the Straits of Malacca and Singapore
Marine Policy 44 (2014) 232–238
Contents lists available at ScienceDirect
Marine Policy journal homepage: www.elsevier.com/locate/marpol
Multilateralism in the Straits of Malacca and Singapore Nazira Abdul Rahman n School of History, Politics and Strategy Studies, Faculty of Social Sciences and Humanities, National University of Malaysia, 43600 Bangi, Selangor, Malaysia
art ic l e i nf o
a b s t r a c t
Article history: Received 12 July 2013 Received in revised form 22 August 2013 Accepted 23 August 2013 Available online 8 October 2013
This paper analyzes International Maritime Organization (IMO) involvement in maritime cooperation regime in the Straits of Malacca and Singapore through multilateralism. It begins by introducing the maritime cooperation regime prior to 2001, which was mainly trilateral in nature through Tripartite Technical Expert Group on the Safety of Navigation (TTEG). Although TTEG managed to increase the level of safety of navigation in the Straits of Malacca and Singapore through the implementation of the Traffic Separation Scheme (TSS) in 1981 and Mandatory Ship Reporting System (STRAITREP) in 1998, such cooperation was beset by financial strain and conflict of interests. Subsequently, there was a change in the cooperation regime after 9/11 incident. This paper identifies that the change was contributed by the IMO through a methodology called multilateralism. Three important principles were adopted by IMO in implementing multilateralism in the Straits of Malacca and Singapore, namely generalized principles of conduct (respect for sovereignty and compliance with burden sharing principle under Article 43 of UNCLOS 1982), diffuse reciprocity, and indivisibility. This paper concludes that multilateralism by IMO has transformed trilateral cooperation into multilateral cooperation in the Straits of Malacca, combining state actors (littoral states and user states) and non-state actors (non-governmental organizations and international shipping industries). & 2013 Elsevier Ltd. All rights reserved.
Keywords: Straits of Malacca Maritime cooperation Maritime safety Marine environmental protection Burden sharing Multilateralism
1. Introduction During the period of 1971–2001, maritime cooperation regime in the Straits of Malacca and Singapore was implemented. In this connection, the three littoral states successfully established the Tripartite Technical Expert Group on the Safety of Navigation (TTEG) in 1975, through which two main achievements were made, namely the implementation of Traffic Separation Scheme (TSS) and Mandatory Ship Reporting System (STRAITREP) in 1981 and 1998 respectively.1 However, such cooperation was limited to the three littoral states. There was no involvement of state actors or non-state actors in the management of the Straits of Malacca except Japan through the Malacca Strait Council (MSC). Since the setup of MSC in 1968, Japan has made every effort to ensure safe navigation in the Straits of Malacca and Singapore. On the other hand, IMO's involvement was just for approval for TSS and STRAITREP implementation. Overall, the passage of the Straits
n
Tel.: þ 60 12 3624116. E-mail address: [email protected] 1 TSS is an IMO-approved routeing system. It was implemented in the Straits of Malacca and Singapore on 14th November 1977 by virtue of IMO Assembly Resolution A.375(X). Further, on 19th May 1998, the IMO adopted Resolution MSC 73 (69) making a ship reporting system mandatory for ships of certain categories when passing through the nine designated sectors along the Straits of Malacca and Singapore (from Pulau Angsa to Horsburg Lighthouse). STRAITREP came into force on 1 December 1998. 0308-597X/$ - see front matter & 2013 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.marpol.2013.08.030
of Malacca is properly regulated, but sovereignty is strictly guarded by the littoral states. However, the 9/11 incident changed the world's security and also had a big impact on security level in the Straits of Malacca and Singapore. In this connection, the Straits of Malacca was regarded as ‘the second front of global terrorism’.2 Concerns triggered by the international community, particularly the US, regarding the risk of terrorist attacks in the Malacca Strait has seen attempted intervention and involvement of various parties to ensure safe and secure the Malacca Strait for international trade and shipping activities. Even though it was regarded as a myth, diplomatic efforts to control this busy and strategic passage between the Indian Ocean and the Pacific and the threat of piracy were intensified [1]. The littoral states, especially Malaysia and Indonesia, repeated their long-standing position that the Straits of Malacca and Singapore were not an international waterway, although they fully recognized their use for international shipping [2]. In the meantime, Japan led a multilateral initiative to combat piracy and armed robbery under Regional Cooperation Agreement on Combating Piracy and armed Robbery Against Ships in Asia
2 Several countries in the region such as Malaysia, Thailand, Indonesia, and the Philippines were featured in al Qaeda's most ambitious plans, including its attack on the USS Cole in October 2000 and the September 11 attacks [The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, 2004, http://www.gpoaccess.gov/911/pdf/fullreport.pdf. – accessed 19 June 2013].
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
(ReCAAP) but received no participation from Malaysia and Indonesia.3 In addition, attempts by the United States to assert military control over the Straits under Regional Maritime Security Initiative (RMSI) were met by stiff resistance from Indonesia and Malaysia [3].4 Amazingly, IMO-led multilateral cooperation was accepted despite their resistance to other parties' similar efforts. The question arises as to what kind of methodology or approach was adopted by the IMO in balancing the different interests of the parties involved in cooperation regime in the Strait of Malacca? This methodology or approach needs to be scrutinized and clearly understood because the answers about the ability of IMO to change the maritime cooperation regime in the Straits of Malacca will be obtained. Indeed, different priorities, perceptions and interests in the Straits of Malacca which has lasted since the 1970s are very difficult to resolve without compromise. Therefore, this paper argues that the success of multilateralism in the Straits of Malacca after 2001 was partly due to IMO's role in facilitating the entire process by adopting three principles, namely generalized principles of conduct, indivisibility, and diffused reciprocity. Despite taking so long, the multilateralism approach facilitated by IMO is a win–win approach that promises everyone will benefit equally.
2. The concept of multilateralism Multilateralism is comprised of three main principles; namely generalized principles of conduct, indivisibility, and diffuse reciprocity. As explained by Caporaso, “The institution of multilateralism is distinguished from other forms by three properties: indivisibility, generalized principles of conduct and diffuse reciprocity” [4]. These three principles differentiate multilateralism from unilateralism or bilateralism. Multilateralism has been widely implemented in the 20th and 21st century due to global interdependence. According to Ikenberry, “as global interdependence grows, so does the need for multilateral coordination of policies comes as close as any to unchallenged veracity” [5]. Besides interdependence, transboundary issues such as international terrorism, human trafficking, smuggling, piracy and armed robbery against ships have raised demand for multilateral solutions to these problems. In terms of definition, multilateralism was defined as ‘the practice of co-ordinating national policies in groups of three or more states, through ad hoc arrangements or by means of institutions’ [6]. However, this definition is limited to multilateralism by state actors, which focus on the institution as ‘inherited patterns of rules and relationships that can affect beliefs and expectations, and as potential tools for the pursuit of their own objectives’ [7]. In other words, multilateralism forms an institution when there is a set of the rules governing the conduct of the parties involved through multilateral agreements based on specific regulations [8]. In this context, multilateralism exists in the form 3 ReCAAP is the first regional government-to-government agreement to promote and enhance cooperation against piracy and armed robbery in Asia. It was finalized on 11 November 2004 and entered into force on 4 September 2006. To date, 18 States have become contracting parties to ReCAAP namely all ASEAN nations (except Indonesia and Malaysia), Japan, China, Korea, India, Bangladesh, Sri Lanka, Netherlands, Norway, UK and Denmark. [http://www.recaap.org/AboutRe CAAPISC.aspx -accessed 20 June 2013]. 4 The Regional Maritime Security Initiative (RMSI), proposed in 2004 by Admiral Thomas B. Fargo, former commander of the US Pacific Command, is one of the American maritime security programs and initiatives designed to promote regional cooperation and improve maritime security in the East Asia and Pacific region, especially in the Straits of Malacca and Singapore. The main goal of RMSI is to develop a partnership of willing nations to work together under international and domestic law, to identify, monitor and intercept transnational maritime threats, in particular piracy, armed robbery and maritime terrorism.
233
of international regime or international organization. Multilateralism has also been defined as ‘persistent sets of rules, formal and informal, that affect the behavior of actors that define and stabilize property rights of states, manage coordination problems and resolve collaboration problems’ [9]. These definitions provide us with the understanding that multilateralism and the establishment of international institutions are interrelated, because the establishment of an international institution itself is the result of the process of multilateralism. In the context of the Straits of Malacca, multilateralism facilitated by IMO has sought to resolve conflict and complicated transboundary issues which ineffectively addressed through bilateral or trilateral mechanism.
3. Multilateralism by IMO in the Straits of Malacca and Singapore This section will analyze how IMO facilitated multilateral maritime cooperation in the Straits of Malacca and Singapore after 2001. It has been argued that IMO successfully facilitated maritime cooperation between state actors and non-state actors based on three main principles, namely generalized principles of conduct, indivisibility, and diffuse reciprocity. These three principles were applied to three important aspects, namely maritime security, maritime safety, and marine environmental protection. As a matter of fact, the establishment of the UN is the symbol of multilateralism. Thus, IMO, as a specialized agency of the UN, also adopted this method for every action. Multilateralism has been implemented by various multilateral institutions and in various forms of cooperation, be that political, economic, industrial or legal cooperation. It grew rapidly after the end of Cold War. In addition, multilateralism has been associated with the weapon of the weak because only small countries often choose to participate in multilateralism to achieve their interests [10]. However, the study also found that the perception that multilateralism is used as a weapon by small countries is not entirely accurate. In this connection, big countries, particularly the U.S, Japan and China, have used multilateralism as a weapon and means to get involved in the management of the Straits of Malacca and Singapore. In contrast, small countries, especially Malaysia and Indonesia, refused to accept multilateralism by IMO in the Strait at first. However, external pressure by superpowers, the spread of transnational maritime crime, duty to cooperate under Article 43 of UNCLOS 1982, and finally the fully mandated involvement of IMO has made them agree to cooperate.5 This development is consistent with the Acharya's view that “multilateralism and multilateral institutions may not be the quickest, most efficient or decisive producers of normative change, but they make fundamental transformations legitimate and peaceful” [11]. It is clear that multilateralism in the context of the Straits of Malacca is not the weapon of weak states but rather a weapon of powerful states to urge the IMO to be a ‘middleman’ for urging the littoral states to accept international cooperation in the management of the Straits of Malacca. 3.1. Generalized principles of conduct In facilitating a new maritime cooperation regime in the Straits of Malacca after 2001, the IMO outlined two general principles of conduct, namely the principle of sovereignty and territorial 5 Researcher's interview with Muhammad Razif Ahmad, Managing Director of Port of Tanjung Pelepas (formerly a director of Mariners Affairs Division, Marine Department of Malaysia), 5 April 2012, Port Klang and Abdullah Yusuff Basiron, Undersecretary of Maritime Division, Ministry of Transportation Malaysia, 4 April 2012, Putrajaya.
234
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
integrity and the principle of burden sharing under Article 43 UNCLOS 1982. These two principles are in line with the littoral states position and recognized by the user states and international shipping industry as a fundamental principle in Cooperative Mechanism 2007.
3.1.1. The principle of sovereignty and territorial integrity Principles of sovereignty and territorial integrity are universal principles contained in the Treaty of Westphalia in 1648. It is the backbone of multilateralism, described by Ruggie as “the earliest multilateral arrangements instituted in the modern era were designed to cope with the international consequences of the novel principle of state sovereignty” [12]. Multilateralism by the IMO recognizes this principle and makes it one of the general principles to be observed by all parties involved in this cooperation regime. This principle is very important because it forms the basis of a country's existence and also foundation of international relations. Basically, it recognized equality of nations and become a fundamental principle of modern international law particularly international maritime law (UNCLOS 1982) and the convention for the establishment of IMO (IMO Convention 1948). There are various definitions of sovereignty. It has been defined as ‘the most extensive form of jurisdiction under international law… it denotes full and unchallengeable power over a piece of territory and all the persons from time to time’ [13] or ‘the vindication of the states’ existence as a member of the international system’ [14]. These two definitions suggest that sovereignty consists of three main features, namely territorial integrity, equality of rights between countries and non-intervention [15]. Be that as it may, conflict resolution through multilateralism benefits all parties. Even though takes some time, what is important is the respect, recognition and adherence of user states and international shipping industries of littoral states' sovereignty. Recognition of this principle unites all parties at the negotiating table. Indeed, unilateral conflict resolution is not an appropriate choice because it set aside the most important general principle in interstate relations i.e. the principle of sovereignty and territorial integrity. In the context of the maritime cooperation regime facilitated by the IMO in the Straits of Malacca after 2001, the principle of sovereignty became the key principle forming the basis for interstate consolidation and cooperation. Recognition of this principle has the following three implications:
Littoral states have exclusive rights over their territorial waters
in the Strait of Malacca and Singapore by virtue of UNCLOS 1982. Littoral states are fully responsible for managing the safety and security of the straits. Thus the IMO, user states and the international shipping industry shall not interfere unless the littoral states violate any provisions of UNCLOS 1982 or any other relevant international law. Littoral states are obliged to ensure the safety of navigation and marine environmental protection, while user states and the international shipping industry share that burden with the littoral states.
The above three implications have shown that multilateralism upholds the sovereignty of the littoral states. In the meantime, it also preserved the rights of user states and the international shipping industry. Thus, it is clear that IMO's role is very significant in facilitating multilateral cooperation without exceeding the power and mandate given by the UN and the relevant conventions because the truth is ‘multilateral institutions are not above or apart from the state system; states dominate them’ [16]. It means that once all
responsibilities and rights being duly executed by all parties, then conflict will be resolved. This principle was duly recognized when dealing with issues pertaining to the safety of navigation, maritime security, and marine environmental protection in the Straits of Malacca. Having said that, the scope of maritime security was excluded in the Cooperation Mechanism 2007 due to sensitivity of coastal state sovereignty. In this regard, the assurance that the principle of the sovereignty of the littoral states should be given priority was mentioned in the Jakarta Statement 2005 [17], the Kuala Lumpur Statement 2006 [18] and the Singapore Statement 2007 [19]: Affirming the sovereignty, sovereign rights, jurisdiction and territorial integrity of the littoral States over the Straits, as provided for under international law, in particular UNCLOS, and that the primary responsibility over the safety of navigation, environmental protection and maritime security in the Straits lies with the littoral States. This recognition was clearly reflected in three historic negotiations (Jakarta Meeting 2005, Kuala Lumpur Meeting 2006 and Singapore Meeting 2007) when all parties, including IMO, agreed that maritime security would not be listed in the scope of Cooperative Mechanism 2007. Hence, the scope would be limited to the safety of navigation and protection of the marine environment only. The IMO, user states, and international shipping industries' compliance on sovereignty principle has convinced the three littoral states that they should cooperate with them and not to resolve those issues unilaterally. In contrast to the negative responses and objections to the proposed US unilateralism through RMSI in 2004, implementation of three historic negotiations and agreements on Cooperation Mechanism of 2007 showed a positive response by the littoral states on multilateralism by IMO. Despite taking a relatively long time to reach an agreement creating a Cooperative Mechanism in 2007, littoral states were then confident that the resolution of conflict in the Straits of Malacca and Singapore could be overcome through a multilateral approach, without having to sacrifice their principles of sovereignty and territorial integrity. Even though maritime security as not included in the Cooperative Mechanism 2007, IMO has urged littoral states to continuously improve maritime security in the Straits of Malacca through any means. 3.1.2. The principle of burden sharing The maritime world today is confronted with complex problems and a cross-border nature. It is estimated that 80% of world trade is carried by sea, which exposes the world's population to impacts from what is happening on the ocean. For example, the incidence of piracy by Somali pirates in the Gulf of Aden has produced financial implications in countries all over the world when huge amount of ransom need to be paid to the pirates and losses due to disruption of ship operations. According to Valencia, in 2008 alone 111 vessels were attacked by Somali pirates, and 42 crew members were taken hostage with an estimated value of US $150 million. Insurance premiums increased to US$20,000 per trip [20]. In addition to piracy and robbery at sea, maritime crimes such as weapons proliferation, the degradation of the marine environment, illegal immigration and cross-border smuggling are trans-boundary crimes which cannot be solved by one country alone. So the burden should be shared with other countries through multilateral cooperative mechanisms. The principle of burden sharing is the second general principle in the IMO multilateralism approach in the Straits of Malacca after 2001. This principle involves a state actor (littoral and user states) and non-state actors (IMO and international shipping industries). All actors have their respective roles. User states and the shipping
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
industry are required to contribute in the form they are capable of, be it finance, expertise, or logistics, while littoral states are responsible for taking certain steps to ensure the safety of navigation and protection of the marine environment in the Straits of Malacca. In the meantime, IMO serves to facilitate the implementation of burden sharing by all parties. There is no doubt that the burden-sharing principle creates a win-win situation. Not only has it relieved the littoral states from their financial burden, but it also has guaranteed user states and international shipping industry a safer and cleaner Straits of Malacca through the implementation of various projects. The successful implementation of multilateralism in the Straits of Malacca partly confirms the institutionalist theory that international institutions are capable of fostering interstate cooperation and resolving potential conflict. In fact, the principles of burden sharing and sovereignty are related to each other. Every sovereign country has certain responsibilities towards other sovereign country, as provided under Article 2 (2) of the UN Charter: All members, in order to ensure to all of them the right and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. In the context of the Straits of Malacca, the principle of burdensharing was listed under Article 43 of UNCLOS 1982: User States and States bordering a strait should by agreement cooperate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships. Both Article 2(2) and Article 43 above have big implications for all sovereign countries in the world. This is because all UN member states are sovereign states, and IMO itself is an agency under the United Nations. So, when a sovereign state joins the United Nations and becomes subject to the rules of the body, then those sovereign states are also subject to IMO regulations. Both of these bodies have clearly allocated certain responsibilities on sovereign states to cooperate with other sovereign nations. Logically, this means that each sovereign state should not abstain from helping other countries whenever necessary. Therefore, the principle of burden-sharing has become the basis for Cooperative Mechanism 2007 during three IMOsponsored negotiations on the Straits of Malacca in three consecutive years (2005–2007). This point was made clear in the following paragraph of Jakarta Statement 2005, Kuala Lumpur Statement 2006 and Singapore Statement 2007: Acknowledging…the role of IMO, the user states, the shipping industry and other stakeholder in cooperating with the littoral states in promoting and enhancing safety of navigation and environmental protection and ensuring the uninterrupted flow of traffic in the Straits. Although the principle of burden-sharing contained in Article 43 of UNCLOS 1982 was apparently limited to cooperation on the safety of navigation and marine environmental protection, in reality it is also applicable in maritime security issues such as capacity building, training, and intelligence sharing. This is because although cases of piracy and robbery have declined due to regular patrols and maritime surveillance by the three littoral states since 2004, in the long run it is uncertain whether the three littoral states can maintain this momentum, particularly Indonesia
235
due to a lack of patrol vessels, poor training of enforcement personnel, and lack of provisions for assets and equipment [21]. Thus the principle of burden sharing must be adhered to. In terms of safety of navigation, the increase in the number of ships passing through the Straits has caused high probability of an accident. It must be recognized that the Straits of Malacca is not one hundred per cent safe for navigation. The Traffic Separation scheme is not a complete instrument to overcome accident issues. This is because TSS at One Fathom Bank is too narrow and built in the areas of fishing activities. So accidents with fishing vessels have the potential to occur. In addition, accidents are also caused by collisions with ship crossings the straits to and from Malaysia and Indonesia. In addition to TSS, STRAITREP also has its own problems as a voluntary reporting system which has been used as an excuse by some user states not to report to STRAITREP, assuming the system does not comply with the principle of freedom of navigation under UNCLOS 1982. Moreover, high cost required for the acquisition and maintenance of navigational aids. Then, continuous assistance from user states is required to maintain the functionality of the facility and ensure on-going maintenance activities. In terms of the protection of the marine environment, marine pollution due to ship waste, oil spills, hazardous chemical spills and air pollution by ships also all pose big problems for the littoral states as it requires high cleaning cost, while the ability of the littoral states is limited. In other words, the burden of management of the Straits of Malacca is caused by the existence of various threats to maritime security, safety of navigation and protection of the marine environment. Evidently, these problems will not be overcome wholly by the littoral states. It is not fair for the international community to expect the littoral states to fully manage the Straits of Malacca when they have limited ability. They need help from users, the international shipping industry, and the IMO. However, the assistance and cooperation to be established must first comply with the general principles of conduct namely sovereignty and territorial integrity. Therefore, the user states and the international shipping industry should not insist that maritime security be included in the Cooperative Mechanism 2007, because this will challenge the sovereignty and territorial integrity of the littoral states which are fully responsible for it. In summary, the principle of sovereignty and territorial integrity and the principle of burden sharing are two general principles that have changed the norms of cooperation in the Straits of Malacca. With help from IMO, both principles were fully complied with by all parties. These two principles were long-established principles in international law, but their existence (without the facilitating role of IMO) is simply not able to promote multilateral cooperation.
3.2. Indivisibility In general terms, indivisibility means ‘not divided.’ Technically, this refers to the social construction of collective members which may take various forms, but in all cases it constitutes the scope, both geographic and functional, over costs and benefits which are spread when actions are taken that affect the collective [22]. For example, if user states claim to have their rights of freedom of navigation in the Straits of Malacca, they must also pay for the costs. It means that they need to play a role in ensuring the safety of navigation and environmental protection by making contribution to Aids to Navigation Fund, so that the littoral states will be able to manage the Straits properly. The same principle applies to shipping industries which rely heavily on the Straits of Malacca as the main passage connecting the Middle East to the Asia Pacific region.
236
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
Having said that, the safety of navigation and environmental protection of the Straits of Malacca and Singapore can be guaranteed if sufficient funds are available for littoral states. Thus, user states and international shipping industries must give financial assistance or other forms of contribution to the user states, consistent with Article 43 of UNCLOS 1982, which establishes the need to cooperate with the littoral states in ensuring navigational safety and marine environmental protection. Cooperating regimes based on this principle has been accepted by all parties because IMO-led multilateralism promises a more secure future compared to bilateral cooperation or any other form of cooperation. 3.3. Diffuse reciprocity As first discussed by Keohane in 1986, diffuse reciprocity means that actors target the long-term benefits of multilateralism in a variety of issues. In this regard, Powell explained that reciprocity occurs when ‘nations cooperate because they will benefit in the aggregate, not in every transaction’ [23]. In other words, multilateralism is expected to produce a ‘rough equivalence of benefits in the aggregate and over time’ [24]. This reciprocity is important for explaining the effectiveness of multilateralism in overcoming coordination problems which normally revolve around high costs; many countries expect the same result. When facing an international problem requiring coordination, countries do not mind to lose now, as long as there is the potential to win tomorrow [25]. However, has been contended that multilateralism rarely resolves collaborative problems like collective security[26], especially when the countries concerned fail to take note of Caporaso, who stated that multilateralism is based on the principles of reciprocity and that ‘actors expect to benefit in the long run and over many issues, rather than every time on every issue’ [27]. In the context of the Straits of Malacca, reciprocity considerations were the basis for all parties involved in the creation of a new collaborative regime, through the creation of the cooperative mechanism in 2007. During three years of negotiation, the parties debated the three core issues of maritime security, safety of navigation and protection of the marine environment. They have agreed to observe the guiding principles of cooperation, namely respect for sovereignty and compliance with the burden-sharing principle. 3.3.1. Maritime security In principle, the littoral states of the Straits of Malacca have the right to protect their territorial sea area up to 12 nautical miles. However, the task of ensuring these rights are maintained is not easily because it sometimes sparks diplomatic complexities and dilemmas at the domestic level. In response, littoral states have to balance economic and security interests with international obligations. User states need to understand that the sovereignty and territorial integrity of the littoral states must be recognized in order to sustain effective cooperation in the Straits of Malacca. In return, the littoral states have to increase their efforts combating the threat of piracy and armed robbery in the Straits of Malacca through MALSINDO and Eyes in the Sky measures. Both of these operations have succeeded in reducing maritime threats in the Straits of Malacca. The compromises reached between the littoral states and user states will improve their diplomatic relations. No parties should trigger a unilateral action such as one tension-causing incident in 2004 when Malaysia and Indonesia strongly opposed US intervention through RMSI in the Straits of Malacca. The tension was ameliorated through the application of reciprocity principle in multilateral
negotiation facilitated by IMO. This harmonious diplomatic relations can be considered as the most important benefit to all countries involved. If countries act unilaterally, it may cause hostility and infringe upon their reputation. It will also make it difficult for them to cooperate in the future.
3.3.2. Safety of navigation Reciprocity in this area occurs when consumers and the international shipping industry contributes financially, materially or with expertise to the littoral states. Though it may look like user states are losing, in the long run it will benefit both sides of the littoral states can no longer bear the financial burden of high, while the user states will enjoy a safe passage through the Straits of Malacca following the implementation of the following six projects:
Project 1:Removal of wrecks in the Traffic Separation Scheme in the Straits of Malacca
Project 3: Demonstration project of AIS transponder Class B for small ships
Project 4: Wind, tide and current measurement in enhancing the navigational safety and marine environmental protection
Project 5: Replacement and maintenance of aids to navigation in the Straits of Malacca
Project 6: Replacement of aids to navigation destroyed by tsunami in December 2004
Project 7: Emergency vessels towage service The projects were implemented by the littoral states using funds contributed by the user states and international shipping industry. Benefits from the implementation of these projects will be enjoyed by the user states and international shipping industry, as the Straits of Malacca will be safer and marine accidents could be reduced. However, a zero accident rate is nearly impossible because of other contributing factors, such as navigational aid malfunction and human negligence.
3.3.3. Marine environmental protection Similar to the safety of navigation, reciprocity also exists in the protection of the marine environment. In this regard, a project proposed at the Kuala Lumpur Meeting in 2006 was project 2 (cooperation and capacity-building for hazardous and noxious substances (HNS) in the Straits of Malacca and Singapore). Although this kind of spills rarely occur in the Straits of Malacca compared to oil spills, toxic and chemical spill are far more dangerous than oil spills. This is because littoral states have no contingency plan for cleaning up toxic and chemical spills like they do for oil spills. In addition, toxic and chemical spills are not easily addressed. Different reactions caused by the spread of chemicals into the air and water also makes these sorts of spills difficult to clean. Apart from project 2, the contribution made by the user states will be used by the littoral states to ensure the safety of the marine environment at all times. Therefore, this aspect will benefit all involved parties. In sum, multilateralism by IMO has resulted in repeated interactions between state actors and non-state actors for three years (2005, 2006 and 2007) and continue until today. As a result, the discussion has enlightened all parties that the issues being debated are indivisible in nature. It is inseparable from each other, which means the principle of sovereignty must be respected, the financial burden should be shared, the marine environment should be preserved at all times, social responsibility should be implemented, and eventually all parties be fully convinced that multilateralism will benefit them, as opposed to other mechanisms. Be that as it may, all parties have to
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
sacrifice some of their interests for the sake of long-term benefits to the Straits of Malacca. Intended long-term benefits include, but are not limited to, more harmonious diplomatic relations between the littoral states and user states due to recognition of the sovereignty of the littoral states. This is also consistent with international law, specifically UNCLOS 1982. In addition, multilateral cooperation will make the Malacca Straits safe for navigation, which is beneficial to user states. While cooperation in the protection of the marine environment will make the marine environment protected in the Straits of Malacca and is surely to the benefit of the littoral states. Thus, reciprocity is the most important element offered by multilateralism. It is the backbone of the success of the Cooperative Mechanism 2007. However, it is undeniable that Article 43 has the disadvantage that there is no enforcement power to ensure the implementation of the cooperation observed by the user, the littoral states, and the international shipping industry. Therefore, the principle of reciprocity through IMO role as a multilateral actor to coordinate historic negotiations in 2005, 2006 and 2007, in which the IMO urged user states and shipping industries to give financial assistance to the littoral states. Littoral states were advised to accept international cooperation in terms of safety of navigation and protection of the environment through the cooperative mechanism in 2007. Without the principle of reciprocity and the role of IMO, it is impossible for all parties to cooperate with each other. It goes without saying that reciprocity principles the driving force behind user states and littoral states preference for conflict resolution through international institutions. Overall, the three principles of multilateralism elaborated in this paper were duly considered during the process of establishing Cooperative Mechanism 2007. This is definitely true in the context of maritime cooperation in the Straits of Malacca. The negotiation process of 3 years (2005–2007) was tense in the beginning, but the compromise was achieved during the 3rd year of negotiation. Now, all parties are confident that multilateralism promises a win– win situation to all of them. Clearly, the Cooperative Mechanism 2007 is a symbol of a historic achievement, as this is the first time the burden sharing principle under Article 43 of UNCLOS 1982 was successfully implemented. 3.4. Conclusion The management of the Straits of Malacca is very complex, as it involves various parties, be they state parties or non-state parties. In this regard, IMO's involvement in coordinating maritime cooperation regime in the Straits of Malacca is indeed very timely. Otherwise, the concept of burden-sharing will not be implemented, and user states will continue to doubt the capacity of the littoral states; the littoral states on the other hand will continue to bear the financial burden. This crisis will not improve the safety level of the Straits of Malacca. This paper concludes that international institutions such as IMO were able to break the deadlock of the maritime cooperation regime in the Malacca Strait after 9/11, when the effort through bilateral mechanisms and other multilateral mechanism failed to achieve success. These findings are in line with institutionalism assumption that international institutions are able to facilitate interstate cooperation, reduce tensions and reduce transaction costs and uncertainty. Thus, this study concludes that:
Multilateralism by IMO has transformed the maritime coopera-
tion regime in the Straits of Malacca from trilateral cooperation (TTEG) into multilateral cooperation involving state actors and non-state actors. The exclusion of maritime security aspect under Cooperative Mechanism 2007 shows that multilateralism by IMO has given
237
due respect to the principles of sovereignty and territorial integrity of the littoral states. IMO did not interfere with the domestic affairs of the littoral states but only coordinate multilateral cooperation in enhancing navigational safety and environmental protection in the Straits of Malacca
Ultimately, multilateralism by the IMO has brought stability in the Straits of Malacca. This development has partially confirmed institutionalist assumption that international institutions are capable of providing a platform for interstate cooperation, reducing tension and transaction costs, uncertainty, discrimination, and solving coordination problems. However, the institutionalist assumption was not proven in the area concerning state sovereignty and territorial integrity.
Acknowledgments The author wish to thank the Department of Public Service Malaysia for financing the research and all interviewees for their cooperation, time and support. Any opinions, findings, and conclusions or recommendations expressed in this paper are those of the author and do not necessarily reflect the views of the sponsoring agency nor the National University of Malaysia. References [1] Acharya A, Acharya A. The myth of the second front: localizing the ‘war on terror’ in Southeast Asia. The Washington Quarterly 2007;30(4):75–90. [2] Leifer M, Nelson D. Conflict of interests in the Straits of Malacca. International Affairs (Royal Institute of International Affairs 1944-) 1973;49(2):190–203. [3] Ong-Webb GG. Piracy in maritime Asia: current trends. In: Lehr Peter, editor. Violence at sea: piracy in the age of global terrorism. New York: Routledge; 2007. p. 37–94. [4] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632. [5] Ikenberry GJ. After victory: institution, strategic restraint and the rebuilding of order after major wars. Princeton: Princeton University Press; 2001. [6] Keohane RO. Multilateralism: an agenda for research. International Journal 1990;45(4):731–64. [7] Keohane RO. Power and governance in a partially globalised world. London: Routledge; 2002. [8] Keohane RO. Multilateralism: an agenda for research. International Journal 1990;45(4):731–64. [9] Ruggie J. Multilateralism: the anatomy of an institution. International Organization 1992;46(3):561–98. [10] Kagan R. Power and weakness. Policy Review 2002;113:3–28. [11] Acharya A. Multilateralism, sovereignty and normative change in world politics. In: Newman E, Thakur Ramesh, Tirman J, editors. Multilateralism under Challenge? Power, international order, and structural change Tokyo: United Nations University Press; 2006 (2006). [12] Ruggie J, editor. Multilateralism matters. New York: Colombia University Press; 1993. [13] Dixon M. Textbook on international law. 6th ed.. New York: Oxford University Press; 2007. [14] Chayes A, Chayes AH. The new sovereignty: compliance with international regulatory agreements. Massachusetts: Harvard University Press; 2009. [15] Acharya A. Multilateralism, sovereignty and normative change in world politics. In: Newman E, Thakur Ramesh, Tirman J, editors. Multilateralism under challenge? Power, international order, and structural change Tokyo: United Nations University Press; 2006 (2006). [16] Thompson JE. State sovereignty in international relations: bridging the gap between theory and empirical research. International Studies Quarterly 1995;39(2):213–33. [17] Thompson JE. State sovereignty in international relations: bridging the gap between theory and empirical research. International Studies Quarterly 1995;39(2):213–33. [18] International Maritime Organization. Jakarta statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 8 September 2005. IMO/JKT 1/2. [19] International Maritime Organization. Kuala Lumpur statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 20 September 2006. IMO/KUL 1/4. [20] International Maritime Organization. Singapore statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 6 September 2007. IMO/SGP 1/4 Jakarta Statement.
238
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
[21] Valencia M. The Somalia multilateral anti-piracy approach: its irrelevance to the Straits of Malacca. In: Nazery Khalid, editor. Proceedings of the 6th MIMA international conference on the straits of Malacca: charting the future. Kuala Lumpur: Maritime Institute of Malaysia; 2009. [22] Hashim Djalal. Managing safety and security in the Straits of Malacca and Singapore. In: Nazery Khalid, editor. Proceedings of the 6th MIMA international conference on the Straits of Malacca: charting the future. Kuala Lumpur: Maritime Institute of Malaysia; 2009. [23] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632.
[24] Powell L. In defense of multilateralism. Yale center for environmental law and policy; 2003. 〈http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/ Powell.pdf〉 [14.5.2013]. [25] Ruggie J. Multilateralism: the anatomy of an institution. International Organization 1992;46(3):561–98. [26] Bouchard C, Peterson J. Conceptualising multilateralism, University of Edinburgh. 〈http://www.mercury-fp7.net/fileadmin/user_upload/Bouchard_Peter son_Conceptualising_Multilateralism.pdf〉 [accessed 14.05.13]. [27] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632.
Contents lists available at ScienceDirect
Marine Policy journal homepage: www.elsevier.com/locate/marpol
Multilateralism in the Straits of Malacca and Singapore Nazira Abdul Rahman n School of History, Politics and Strategy Studies, Faculty of Social Sciences and Humanities, National University of Malaysia, 43600 Bangi, Selangor, Malaysia
art ic l e i nf o
a b s t r a c t
Article history: Received 12 July 2013 Received in revised form 22 August 2013 Accepted 23 August 2013 Available online 8 October 2013
This paper analyzes International Maritime Organization (IMO) involvement in maritime cooperation regime in the Straits of Malacca and Singapore through multilateralism. It begins by introducing the maritime cooperation regime prior to 2001, which was mainly trilateral in nature through Tripartite Technical Expert Group on the Safety of Navigation (TTEG). Although TTEG managed to increase the level of safety of navigation in the Straits of Malacca and Singapore through the implementation of the Traffic Separation Scheme (TSS) in 1981 and Mandatory Ship Reporting System (STRAITREP) in 1998, such cooperation was beset by financial strain and conflict of interests. Subsequently, there was a change in the cooperation regime after 9/11 incident. This paper identifies that the change was contributed by the IMO through a methodology called multilateralism. Three important principles were adopted by IMO in implementing multilateralism in the Straits of Malacca and Singapore, namely generalized principles of conduct (respect for sovereignty and compliance with burden sharing principle under Article 43 of UNCLOS 1982), diffuse reciprocity, and indivisibility. This paper concludes that multilateralism by IMO has transformed trilateral cooperation into multilateral cooperation in the Straits of Malacca, combining state actors (littoral states and user states) and non-state actors (non-governmental organizations and international shipping industries). & 2013 Elsevier Ltd. All rights reserved.
Keywords: Straits of Malacca Maritime cooperation Maritime safety Marine environmental protection Burden sharing Multilateralism
1. Introduction During the period of 1971–2001, maritime cooperation regime in the Straits of Malacca and Singapore was implemented. In this connection, the three littoral states successfully established the Tripartite Technical Expert Group on the Safety of Navigation (TTEG) in 1975, through which two main achievements were made, namely the implementation of Traffic Separation Scheme (TSS) and Mandatory Ship Reporting System (STRAITREP) in 1981 and 1998 respectively.1 However, such cooperation was limited to the three littoral states. There was no involvement of state actors or non-state actors in the management of the Straits of Malacca except Japan through the Malacca Strait Council (MSC). Since the setup of MSC in 1968, Japan has made every effort to ensure safe navigation in the Straits of Malacca and Singapore. On the other hand, IMO's involvement was just for approval for TSS and STRAITREP implementation. Overall, the passage of the Straits
n
Tel.: þ 60 12 3624116. E-mail address: [email protected] 1 TSS is an IMO-approved routeing system. It was implemented in the Straits of Malacca and Singapore on 14th November 1977 by virtue of IMO Assembly Resolution A.375(X). Further, on 19th May 1998, the IMO adopted Resolution MSC 73 (69) making a ship reporting system mandatory for ships of certain categories when passing through the nine designated sectors along the Straits of Malacca and Singapore (from Pulau Angsa to Horsburg Lighthouse). STRAITREP came into force on 1 December 1998. 0308-597X/$ - see front matter & 2013 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.marpol.2013.08.030
of Malacca is properly regulated, but sovereignty is strictly guarded by the littoral states. However, the 9/11 incident changed the world's security and also had a big impact on security level in the Straits of Malacca and Singapore. In this connection, the Straits of Malacca was regarded as ‘the second front of global terrorism’.2 Concerns triggered by the international community, particularly the US, regarding the risk of terrorist attacks in the Malacca Strait has seen attempted intervention and involvement of various parties to ensure safe and secure the Malacca Strait for international trade and shipping activities. Even though it was regarded as a myth, diplomatic efforts to control this busy and strategic passage between the Indian Ocean and the Pacific and the threat of piracy were intensified [1]. The littoral states, especially Malaysia and Indonesia, repeated their long-standing position that the Straits of Malacca and Singapore were not an international waterway, although they fully recognized their use for international shipping [2]. In the meantime, Japan led a multilateral initiative to combat piracy and armed robbery under Regional Cooperation Agreement on Combating Piracy and armed Robbery Against Ships in Asia
2 Several countries in the region such as Malaysia, Thailand, Indonesia, and the Philippines were featured in al Qaeda's most ambitious plans, including its attack on the USS Cole in October 2000 and the September 11 attacks [The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, 2004, http://www.gpoaccess.gov/911/pdf/fullreport.pdf. – accessed 19 June 2013].
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
(ReCAAP) but received no participation from Malaysia and Indonesia.3 In addition, attempts by the United States to assert military control over the Straits under Regional Maritime Security Initiative (RMSI) were met by stiff resistance from Indonesia and Malaysia [3].4 Amazingly, IMO-led multilateral cooperation was accepted despite their resistance to other parties' similar efforts. The question arises as to what kind of methodology or approach was adopted by the IMO in balancing the different interests of the parties involved in cooperation regime in the Strait of Malacca? This methodology or approach needs to be scrutinized and clearly understood because the answers about the ability of IMO to change the maritime cooperation regime in the Straits of Malacca will be obtained. Indeed, different priorities, perceptions and interests in the Straits of Malacca which has lasted since the 1970s are very difficult to resolve without compromise. Therefore, this paper argues that the success of multilateralism in the Straits of Malacca after 2001 was partly due to IMO's role in facilitating the entire process by adopting three principles, namely generalized principles of conduct, indivisibility, and diffused reciprocity. Despite taking so long, the multilateralism approach facilitated by IMO is a win–win approach that promises everyone will benefit equally.
2. The concept of multilateralism Multilateralism is comprised of three main principles; namely generalized principles of conduct, indivisibility, and diffuse reciprocity. As explained by Caporaso, “The institution of multilateralism is distinguished from other forms by three properties: indivisibility, generalized principles of conduct and diffuse reciprocity” [4]. These three principles differentiate multilateralism from unilateralism or bilateralism. Multilateralism has been widely implemented in the 20th and 21st century due to global interdependence. According to Ikenberry, “as global interdependence grows, so does the need for multilateral coordination of policies comes as close as any to unchallenged veracity” [5]. Besides interdependence, transboundary issues such as international terrorism, human trafficking, smuggling, piracy and armed robbery against ships have raised demand for multilateral solutions to these problems. In terms of definition, multilateralism was defined as ‘the practice of co-ordinating national policies in groups of three or more states, through ad hoc arrangements or by means of institutions’ [6]. However, this definition is limited to multilateralism by state actors, which focus on the institution as ‘inherited patterns of rules and relationships that can affect beliefs and expectations, and as potential tools for the pursuit of their own objectives’ [7]. In other words, multilateralism forms an institution when there is a set of the rules governing the conduct of the parties involved through multilateral agreements based on specific regulations [8]. In this context, multilateralism exists in the form 3 ReCAAP is the first regional government-to-government agreement to promote and enhance cooperation against piracy and armed robbery in Asia. It was finalized on 11 November 2004 and entered into force on 4 September 2006. To date, 18 States have become contracting parties to ReCAAP namely all ASEAN nations (except Indonesia and Malaysia), Japan, China, Korea, India, Bangladesh, Sri Lanka, Netherlands, Norway, UK and Denmark. [http://www.recaap.org/AboutRe CAAPISC.aspx -accessed 20 June 2013]. 4 The Regional Maritime Security Initiative (RMSI), proposed in 2004 by Admiral Thomas B. Fargo, former commander of the US Pacific Command, is one of the American maritime security programs and initiatives designed to promote regional cooperation and improve maritime security in the East Asia and Pacific region, especially in the Straits of Malacca and Singapore. The main goal of RMSI is to develop a partnership of willing nations to work together under international and domestic law, to identify, monitor and intercept transnational maritime threats, in particular piracy, armed robbery and maritime terrorism.
233
of international regime or international organization. Multilateralism has also been defined as ‘persistent sets of rules, formal and informal, that affect the behavior of actors that define and stabilize property rights of states, manage coordination problems and resolve collaboration problems’ [9]. These definitions provide us with the understanding that multilateralism and the establishment of international institutions are interrelated, because the establishment of an international institution itself is the result of the process of multilateralism. In the context of the Straits of Malacca, multilateralism facilitated by IMO has sought to resolve conflict and complicated transboundary issues which ineffectively addressed through bilateral or trilateral mechanism.
3. Multilateralism by IMO in the Straits of Malacca and Singapore This section will analyze how IMO facilitated multilateral maritime cooperation in the Straits of Malacca and Singapore after 2001. It has been argued that IMO successfully facilitated maritime cooperation between state actors and non-state actors based on three main principles, namely generalized principles of conduct, indivisibility, and diffuse reciprocity. These three principles were applied to three important aspects, namely maritime security, maritime safety, and marine environmental protection. As a matter of fact, the establishment of the UN is the symbol of multilateralism. Thus, IMO, as a specialized agency of the UN, also adopted this method for every action. Multilateralism has been implemented by various multilateral institutions and in various forms of cooperation, be that political, economic, industrial or legal cooperation. It grew rapidly after the end of Cold War. In addition, multilateralism has been associated with the weapon of the weak because only small countries often choose to participate in multilateralism to achieve their interests [10]. However, the study also found that the perception that multilateralism is used as a weapon by small countries is not entirely accurate. In this connection, big countries, particularly the U.S, Japan and China, have used multilateralism as a weapon and means to get involved in the management of the Straits of Malacca and Singapore. In contrast, small countries, especially Malaysia and Indonesia, refused to accept multilateralism by IMO in the Strait at first. However, external pressure by superpowers, the spread of transnational maritime crime, duty to cooperate under Article 43 of UNCLOS 1982, and finally the fully mandated involvement of IMO has made them agree to cooperate.5 This development is consistent with the Acharya's view that “multilateralism and multilateral institutions may not be the quickest, most efficient or decisive producers of normative change, but they make fundamental transformations legitimate and peaceful” [11]. It is clear that multilateralism in the context of the Straits of Malacca is not the weapon of weak states but rather a weapon of powerful states to urge the IMO to be a ‘middleman’ for urging the littoral states to accept international cooperation in the management of the Straits of Malacca. 3.1. Generalized principles of conduct In facilitating a new maritime cooperation regime in the Straits of Malacca after 2001, the IMO outlined two general principles of conduct, namely the principle of sovereignty and territorial 5 Researcher's interview with Muhammad Razif Ahmad, Managing Director of Port of Tanjung Pelepas (formerly a director of Mariners Affairs Division, Marine Department of Malaysia), 5 April 2012, Port Klang and Abdullah Yusuff Basiron, Undersecretary of Maritime Division, Ministry of Transportation Malaysia, 4 April 2012, Putrajaya.
234
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
integrity and the principle of burden sharing under Article 43 UNCLOS 1982. These two principles are in line with the littoral states position and recognized by the user states and international shipping industry as a fundamental principle in Cooperative Mechanism 2007.
3.1.1. The principle of sovereignty and territorial integrity Principles of sovereignty and territorial integrity are universal principles contained in the Treaty of Westphalia in 1648. It is the backbone of multilateralism, described by Ruggie as “the earliest multilateral arrangements instituted in the modern era were designed to cope with the international consequences of the novel principle of state sovereignty” [12]. Multilateralism by the IMO recognizes this principle and makes it one of the general principles to be observed by all parties involved in this cooperation regime. This principle is very important because it forms the basis of a country's existence and also foundation of international relations. Basically, it recognized equality of nations and become a fundamental principle of modern international law particularly international maritime law (UNCLOS 1982) and the convention for the establishment of IMO (IMO Convention 1948). There are various definitions of sovereignty. It has been defined as ‘the most extensive form of jurisdiction under international law… it denotes full and unchallengeable power over a piece of territory and all the persons from time to time’ [13] or ‘the vindication of the states’ existence as a member of the international system’ [14]. These two definitions suggest that sovereignty consists of three main features, namely territorial integrity, equality of rights between countries and non-intervention [15]. Be that as it may, conflict resolution through multilateralism benefits all parties. Even though takes some time, what is important is the respect, recognition and adherence of user states and international shipping industries of littoral states' sovereignty. Recognition of this principle unites all parties at the negotiating table. Indeed, unilateral conflict resolution is not an appropriate choice because it set aside the most important general principle in interstate relations i.e. the principle of sovereignty and territorial integrity. In the context of the maritime cooperation regime facilitated by the IMO in the Straits of Malacca after 2001, the principle of sovereignty became the key principle forming the basis for interstate consolidation and cooperation. Recognition of this principle has the following three implications:
Littoral states have exclusive rights over their territorial waters
in the Strait of Malacca and Singapore by virtue of UNCLOS 1982. Littoral states are fully responsible for managing the safety and security of the straits. Thus the IMO, user states and the international shipping industry shall not interfere unless the littoral states violate any provisions of UNCLOS 1982 or any other relevant international law. Littoral states are obliged to ensure the safety of navigation and marine environmental protection, while user states and the international shipping industry share that burden with the littoral states.
The above three implications have shown that multilateralism upholds the sovereignty of the littoral states. In the meantime, it also preserved the rights of user states and the international shipping industry. Thus, it is clear that IMO's role is very significant in facilitating multilateral cooperation without exceeding the power and mandate given by the UN and the relevant conventions because the truth is ‘multilateral institutions are not above or apart from the state system; states dominate them’ [16]. It means that once all
responsibilities and rights being duly executed by all parties, then conflict will be resolved. This principle was duly recognized when dealing with issues pertaining to the safety of navigation, maritime security, and marine environmental protection in the Straits of Malacca. Having said that, the scope of maritime security was excluded in the Cooperation Mechanism 2007 due to sensitivity of coastal state sovereignty. In this regard, the assurance that the principle of the sovereignty of the littoral states should be given priority was mentioned in the Jakarta Statement 2005 [17], the Kuala Lumpur Statement 2006 [18] and the Singapore Statement 2007 [19]: Affirming the sovereignty, sovereign rights, jurisdiction and territorial integrity of the littoral States over the Straits, as provided for under international law, in particular UNCLOS, and that the primary responsibility over the safety of navigation, environmental protection and maritime security in the Straits lies with the littoral States. This recognition was clearly reflected in three historic negotiations (Jakarta Meeting 2005, Kuala Lumpur Meeting 2006 and Singapore Meeting 2007) when all parties, including IMO, agreed that maritime security would not be listed in the scope of Cooperative Mechanism 2007. Hence, the scope would be limited to the safety of navigation and protection of the marine environment only. The IMO, user states, and international shipping industries' compliance on sovereignty principle has convinced the three littoral states that they should cooperate with them and not to resolve those issues unilaterally. In contrast to the negative responses and objections to the proposed US unilateralism through RMSI in 2004, implementation of three historic negotiations and agreements on Cooperation Mechanism of 2007 showed a positive response by the littoral states on multilateralism by IMO. Despite taking a relatively long time to reach an agreement creating a Cooperative Mechanism in 2007, littoral states were then confident that the resolution of conflict in the Straits of Malacca and Singapore could be overcome through a multilateral approach, without having to sacrifice their principles of sovereignty and territorial integrity. Even though maritime security as not included in the Cooperative Mechanism 2007, IMO has urged littoral states to continuously improve maritime security in the Straits of Malacca through any means. 3.1.2. The principle of burden sharing The maritime world today is confronted with complex problems and a cross-border nature. It is estimated that 80% of world trade is carried by sea, which exposes the world's population to impacts from what is happening on the ocean. For example, the incidence of piracy by Somali pirates in the Gulf of Aden has produced financial implications in countries all over the world when huge amount of ransom need to be paid to the pirates and losses due to disruption of ship operations. According to Valencia, in 2008 alone 111 vessels were attacked by Somali pirates, and 42 crew members were taken hostage with an estimated value of US $150 million. Insurance premiums increased to US$20,000 per trip [20]. In addition to piracy and robbery at sea, maritime crimes such as weapons proliferation, the degradation of the marine environment, illegal immigration and cross-border smuggling are trans-boundary crimes which cannot be solved by one country alone. So the burden should be shared with other countries through multilateral cooperative mechanisms. The principle of burden sharing is the second general principle in the IMO multilateralism approach in the Straits of Malacca after 2001. This principle involves a state actor (littoral and user states) and non-state actors (IMO and international shipping industries). All actors have their respective roles. User states and the shipping
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
industry are required to contribute in the form they are capable of, be it finance, expertise, or logistics, while littoral states are responsible for taking certain steps to ensure the safety of navigation and protection of the marine environment in the Straits of Malacca. In the meantime, IMO serves to facilitate the implementation of burden sharing by all parties. There is no doubt that the burden-sharing principle creates a win-win situation. Not only has it relieved the littoral states from their financial burden, but it also has guaranteed user states and international shipping industry a safer and cleaner Straits of Malacca through the implementation of various projects. The successful implementation of multilateralism in the Straits of Malacca partly confirms the institutionalist theory that international institutions are capable of fostering interstate cooperation and resolving potential conflict. In fact, the principles of burden sharing and sovereignty are related to each other. Every sovereign country has certain responsibilities towards other sovereign country, as provided under Article 2 (2) of the UN Charter: All members, in order to ensure to all of them the right and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. In the context of the Straits of Malacca, the principle of burdensharing was listed under Article 43 of UNCLOS 1982: User States and States bordering a strait should by agreement cooperate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships. Both Article 2(2) and Article 43 above have big implications for all sovereign countries in the world. This is because all UN member states are sovereign states, and IMO itself is an agency under the United Nations. So, when a sovereign state joins the United Nations and becomes subject to the rules of the body, then those sovereign states are also subject to IMO regulations. Both of these bodies have clearly allocated certain responsibilities on sovereign states to cooperate with other sovereign nations. Logically, this means that each sovereign state should not abstain from helping other countries whenever necessary. Therefore, the principle of burden-sharing has become the basis for Cooperative Mechanism 2007 during three IMOsponsored negotiations on the Straits of Malacca in three consecutive years (2005–2007). This point was made clear in the following paragraph of Jakarta Statement 2005, Kuala Lumpur Statement 2006 and Singapore Statement 2007: Acknowledging…the role of IMO, the user states, the shipping industry and other stakeholder in cooperating with the littoral states in promoting and enhancing safety of navigation and environmental protection and ensuring the uninterrupted flow of traffic in the Straits. Although the principle of burden-sharing contained in Article 43 of UNCLOS 1982 was apparently limited to cooperation on the safety of navigation and marine environmental protection, in reality it is also applicable in maritime security issues such as capacity building, training, and intelligence sharing. This is because although cases of piracy and robbery have declined due to regular patrols and maritime surveillance by the three littoral states since 2004, in the long run it is uncertain whether the three littoral states can maintain this momentum, particularly Indonesia
235
due to a lack of patrol vessels, poor training of enforcement personnel, and lack of provisions for assets and equipment [21]. Thus the principle of burden sharing must be adhered to. In terms of safety of navigation, the increase in the number of ships passing through the Straits has caused high probability of an accident. It must be recognized that the Straits of Malacca is not one hundred per cent safe for navigation. The Traffic Separation scheme is not a complete instrument to overcome accident issues. This is because TSS at One Fathom Bank is too narrow and built in the areas of fishing activities. So accidents with fishing vessels have the potential to occur. In addition, accidents are also caused by collisions with ship crossings the straits to and from Malaysia and Indonesia. In addition to TSS, STRAITREP also has its own problems as a voluntary reporting system which has been used as an excuse by some user states not to report to STRAITREP, assuming the system does not comply with the principle of freedom of navigation under UNCLOS 1982. Moreover, high cost required for the acquisition and maintenance of navigational aids. Then, continuous assistance from user states is required to maintain the functionality of the facility and ensure on-going maintenance activities. In terms of the protection of the marine environment, marine pollution due to ship waste, oil spills, hazardous chemical spills and air pollution by ships also all pose big problems for the littoral states as it requires high cleaning cost, while the ability of the littoral states is limited. In other words, the burden of management of the Straits of Malacca is caused by the existence of various threats to maritime security, safety of navigation and protection of the marine environment. Evidently, these problems will not be overcome wholly by the littoral states. It is not fair for the international community to expect the littoral states to fully manage the Straits of Malacca when they have limited ability. They need help from users, the international shipping industry, and the IMO. However, the assistance and cooperation to be established must first comply with the general principles of conduct namely sovereignty and territorial integrity. Therefore, the user states and the international shipping industry should not insist that maritime security be included in the Cooperative Mechanism 2007, because this will challenge the sovereignty and territorial integrity of the littoral states which are fully responsible for it. In summary, the principle of sovereignty and territorial integrity and the principle of burden sharing are two general principles that have changed the norms of cooperation in the Straits of Malacca. With help from IMO, both principles were fully complied with by all parties. These two principles were long-established principles in international law, but their existence (without the facilitating role of IMO) is simply not able to promote multilateral cooperation.
3.2. Indivisibility In general terms, indivisibility means ‘not divided.’ Technically, this refers to the social construction of collective members which may take various forms, but in all cases it constitutes the scope, both geographic and functional, over costs and benefits which are spread when actions are taken that affect the collective [22]. For example, if user states claim to have their rights of freedom of navigation in the Straits of Malacca, they must also pay for the costs. It means that they need to play a role in ensuring the safety of navigation and environmental protection by making contribution to Aids to Navigation Fund, so that the littoral states will be able to manage the Straits properly. The same principle applies to shipping industries which rely heavily on the Straits of Malacca as the main passage connecting the Middle East to the Asia Pacific region.
236
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
Having said that, the safety of navigation and environmental protection of the Straits of Malacca and Singapore can be guaranteed if sufficient funds are available for littoral states. Thus, user states and international shipping industries must give financial assistance or other forms of contribution to the user states, consistent with Article 43 of UNCLOS 1982, which establishes the need to cooperate with the littoral states in ensuring navigational safety and marine environmental protection. Cooperating regimes based on this principle has been accepted by all parties because IMO-led multilateralism promises a more secure future compared to bilateral cooperation or any other form of cooperation. 3.3. Diffuse reciprocity As first discussed by Keohane in 1986, diffuse reciprocity means that actors target the long-term benefits of multilateralism in a variety of issues. In this regard, Powell explained that reciprocity occurs when ‘nations cooperate because they will benefit in the aggregate, not in every transaction’ [23]. In other words, multilateralism is expected to produce a ‘rough equivalence of benefits in the aggregate and over time’ [24]. This reciprocity is important for explaining the effectiveness of multilateralism in overcoming coordination problems which normally revolve around high costs; many countries expect the same result. When facing an international problem requiring coordination, countries do not mind to lose now, as long as there is the potential to win tomorrow [25]. However, has been contended that multilateralism rarely resolves collaborative problems like collective security[26], especially when the countries concerned fail to take note of Caporaso, who stated that multilateralism is based on the principles of reciprocity and that ‘actors expect to benefit in the long run and over many issues, rather than every time on every issue’ [27]. In the context of the Straits of Malacca, reciprocity considerations were the basis for all parties involved in the creation of a new collaborative regime, through the creation of the cooperative mechanism in 2007. During three years of negotiation, the parties debated the three core issues of maritime security, safety of navigation and protection of the marine environment. They have agreed to observe the guiding principles of cooperation, namely respect for sovereignty and compliance with the burden-sharing principle. 3.3.1. Maritime security In principle, the littoral states of the Straits of Malacca have the right to protect their territorial sea area up to 12 nautical miles. However, the task of ensuring these rights are maintained is not easily because it sometimes sparks diplomatic complexities and dilemmas at the domestic level. In response, littoral states have to balance economic and security interests with international obligations. User states need to understand that the sovereignty and territorial integrity of the littoral states must be recognized in order to sustain effective cooperation in the Straits of Malacca. In return, the littoral states have to increase their efforts combating the threat of piracy and armed robbery in the Straits of Malacca through MALSINDO and Eyes in the Sky measures. Both of these operations have succeeded in reducing maritime threats in the Straits of Malacca. The compromises reached between the littoral states and user states will improve their diplomatic relations. No parties should trigger a unilateral action such as one tension-causing incident in 2004 when Malaysia and Indonesia strongly opposed US intervention through RMSI in the Straits of Malacca. The tension was ameliorated through the application of reciprocity principle in multilateral
negotiation facilitated by IMO. This harmonious diplomatic relations can be considered as the most important benefit to all countries involved. If countries act unilaterally, it may cause hostility and infringe upon their reputation. It will also make it difficult for them to cooperate in the future.
3.3.2. Safety of navigation Reciprocity in this area occurs when consumers and the international shipping industry contributes financially, materially or with expertise to the littoral states. Though it may look like user states are losing, in the long run it will benefit both sides of the littoral states can no longer bear the financial burden of high, while the user states will enjoy a safe passage through the Straits of Malacca following the implementation of the following six projects:
Project 1:Removal of wrecks in the Traffic Separation Scheme in the Straits of Malacca
Project 3: Demonstration project of AIS transponder Class B for small ships
Project 4: Wind, tide and current measurement in enhancing the navigational safety and marine environmental protection
Project 5: Replacement and maintenance of aids to navigation in the Straits of Malacca
Project 6: Replacement of aids to navigation destroyed by tsunami in December 2004
Project 7: Emergency vessels towage service The projects were implemented by the littoral states using funds contributed by the user states and international shipping industry. Benefits from the implementation of these projects will be enjoyed by the user states and international shipping industry, as the Straits of Malacca will be safer and marine accidents could be reduced. However, a zero accident rate is nearly impossible because of other contributing factors, such as navigational aid malfunction and human negligence.
3.3.3. Marine environmental protection Similar to the safety of navigation, reciprocity also exists in the protection of the marine environment. In this regard, a project proposed at the Kuala Lumpur Meeting in 2006 was project 2 (cooperation and capacity-building for hazardous and noxious substances (HNS) in the Straits of Malacca and Singapore). Although this kind of spills rarely occur in the Straits of Malacca compared to oil spills, toxic and chemical spill are far more dangerous than oil spills. This is because littoral states have no contingency plan for cleaning up toxic and chemical spills like they do for oil spills. In addition, toxic and chemical spills are not easily addressed. Different reactions caused by the spread of chemicals into the air and water also makes these sorts of spills difficult to clean. Apart from project 2, the contribution made by the user states will be used by the littoral states to ensure the safety of the marine environment at all times. Therefore, this aspect will benefit all involved parties. In sum, multilateralism by IMO has resulted in repeated interactions between state actors and non-state actors for three years (2005, 2006 and 2007) and continue until today. As a result, the discussion has enlightened all parties that the issues being debated are indivisible in nature. It is inseparable from each other, which means the principle of sovereignty must be respected, the financial burden should be shared, the marine environment should be preserved at all times, social responsibility should be implemented, and eventually all parties be fully convinced that multilateralism will benefit them, as opposed to other mechanisms. Be that as it may, all parties have to
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
sacrifice some of their interests for the sake of long-term benefits to the Straits of Malacca. Intended long-term benefits include, but are not limited to, more harmonious diplomatic relations between the littoral states and user states due to recognition of the sovereignty of the littoral states. This is also consistent with international law, specifically UNCLOS 1982. In addition, multilateral cooperation will make the Malacca Straits safe for navigation, which is beneficial to user states. While cooperation in the protection of the marine environment will make the marine environment protected in the Straits of Malacca and is surely to the benefit of the littoral states. Thus, reciprocity is the most important element offered by multilateralism. It is the backbone of the success of the Cooperative Mechanism 2007. However, it is undeniable that Article 43 has the disadvantage that there is no enforcement power to ensure the implementation of the cooperation observed by the user, the littoral states, and the international shipping industry. Therefore, the principle of reciprocity through IMO role as a multilateral actor to coordinate historic negotiations in 2005, 2006 and 2007, in which the IMO urged user states and shipping industries to give financial assistance to the littoral states. Littoral states were advised to accept international cooperation in terms of safety of navigation and protection of the environment through the cooperative mechanism in 2007. Without the principle of reciprocity and the role of IMO, it is impossible for all parties to cooperate with each other. It goes without saying that reciprocity principles the driving force behind user states and littoral states preference for conflict resolution through international institutions. Overall, the three principles of multilateralism elaborated in this paper were duly considered during the process of establishing Cooperative Mechanism 2007. This is definitely true in the context of maritime cooperation in the Straits of Malacca. The negotiation process of 3 years (2005–2007) was tense in the beginning, but the compromise was achieved during the 3rd year of negotiation. Now, all parties are confident that multilateralism promises a win– win situation to all of them. Clearly, the Cooperative Mechanism 2007 is a symbol of a historic achievement, as this is the first time the burden sharing principle under Article 43 of UNCLOS 1982 was successfully implemented. 3.4. Conclusion The management of the Straits of Malacca is very complex, as it involves various parties, be they state parties or non-state parties. In this regard, IMO's involvement in coordinating maritime cooperation regime in the Straits of Malacca is indeed very timely. Otherwise, the concept of burden-sharing will not be implemented, and user states will continue to doubt the capacity of the littoral states; the littoral states on the other hand will continue to bear the financial burden. This crisis will not improve the safety level of the Straits of Malacca. This paper concludes that international institutions such as IMO were able to break the deadlock of the maritime cooperation regime in the Malacca Strait after 9/11, when the effort through bilateral mechanisms and other multilateral mechanism failed to achieve success. These findings are in line with institutionalism assumption that international institutions are able to facilitate interstate cooperation, reduce tensions and reduce transaction costs and uncertainty. Thus, this study concludes that:
Multilateralism by IMO has transformed the maritime coopera-
tion regime in the Straits of Malacca from trilateral cooperation (TTEG) into multilateral cooperation involving state actors and non-state actors. The exclusion of maritime security aspect under Cooperative Mechanism 2007 shows that multilateralism by IMO has given
237
due respect to the principles of sovereignty and territorial integrity of the littoral states. IMO did not interfere with the domestic affairs of the littoral states but only coordinate multilateral cooperation in enhancing navigational safety and environmental protection in the Straits of Malacca
Ultimately, multilateralism by the IMO has brought stability in the Straits of Malacca. This development has partially confirmed institutionalist assumption that international institutions are capable of providing a platform for interstate cooperation, reducing tension and transaction costs, uncertainty, discrimination, and solving coordination problems. However, the institutionalist assumption was not proven in the area concerning state sovereignty and territorial integrity.
Acknowledgments The author wish to thank the Department of Public Service Malaysia for financing the research and all interviewees for their cooperation, time and support. Any opinions, findings, and conclusions or recommendations expressed in this paper are those of the author and do not necessarily reflect the views of the sponsoring agency nor the National University of Malaysia. References [1] Acharya A, Acharya A. The myth of the second front: localizing the ‘war on terror’ in Southeast Asia. The Washington Quarterly 2007;30(4):75–90. [2] Leifer M, Nelson D. Conflict of interests in the Straits of Malacca. International Affairs (Royal Institute of International Affairs 1944-) 1973;49(2):190–203. [3] Ong-Webb GG. Piracy in maritime Asia: current trends. In: Lehr Peter, editor. Violence at sea: piracy in the age of global terrorism. New York: Routledge; 2007. p. 37–94. [4] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632. [5] Ikenberry GJ. After victory: institution, strategic restraint and the rebuilding of order after major wars. Princeton: Princeton University Press; 2001. [6] Keohane RO. Multilateralism: an agenda for research. International Journal 1990;45(4):731–64. [7] Keohane RO. Power and governance in a partially globalised world. London: Routledge; 2002. [8] Keohane RO. Multilateralism: an agenda for research. International Journal 1990;45(4):731–64. [9] Ruggie J. Multilateralism: the anatomy of an institution. International Organization 1992;46(3):561–98. [10] Kagan R. Power and weakness. Policy Review 2002;113:3–28. [11] Acharya A. Multilateralism, sovereignty and normative change in world politics. In: Newman E, Thakur Ramesh, Tirman J, editors. Multilateralism under Challenge? Power, international order, and structural change Tokyo: United Nations University Press; 2006 (2006). [12] Ruggie J, editor. Multilateralism matters. New York: Colombia University Press; 1993. [13] Dixon M. Textbook on international law. 6th ed.. New York: Oxford University Press; 2007. [14] Chayes A, Chayes AH. The new sovereignty: compliance with international regulatory agreements. Massachusetts: Harvard University Press; 2009. [15] Acharya A. Multilateralism, sovereignty and normative change in world politics. In: Newman E, Thakur Ramesh, Tirman J, editors. Multilateralism under challenge? Power, international order, and structural change Tokyo: United Nations University Press; 2006 (2006). [16] Thompson JE. State sovereignty in international relations: bridging the gap between theory and empirical research. International Studies Quarterly 1995;39(2):213–33. [17] Thompson JE. State sovereignty in international relations: bridging the gap between theory and empirical research. International Studies Quarterly 1995;39(2):213–33. [18] International Maritime Organization. Jakarta statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 8 September 2005. IMO/JKT 1/2. [19] International Maritime Organization. Kuala Lumpur statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 20 September 2006. IMO/KUL 1/4. [20] International Maritime Organization. Singapore statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore; 6 September 2007. IMO/SGP 1/4 Jakarta Statement.
238
N. Abdul Rahman / Marine Policy 44 (2014) 232–238
[21] Valencia M. The Somalia multilateral anti-piracy approach: its irrelevance to the Straits of Malacca. In: Nazery Khalid, editor. Proceedings of the 6th MIMA international conference on the straits of Malacca: charting the future. Kuala Lumpur: Maritime Institute of Malaysia; 2009. [22] Hashim Djalal. Managing safety and security in the Straits of Malacca and Singapore. In: Nazery Khalid, editor. Proceedings of the 6th MIMA international conference on the Straits of Malacca: charting the future. Kuala Lumpur: Maritime Institute of Malaysia; 2009. [23] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632.
[24] Powell L. In defense of multilateralism. Yale center for environmental law and policy; 2003. 〈http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/ Powell.pdf〉 [14.5.2013]. [25] Ruggie J. Multilateralism: the anatomy of an institution. International Organization 1992;46(3):561–98. [26] Bouchard C, Peterson J. Conceptualising multilateralism, University of Edinburgh. 〈http://www.mercury-fp7.net/fileadmin/user_upload/Bouchard_Peter son_Conceptualising_Multilateralism.pdf〉 [accessed 14.05.13]. [27] Caporaso JA. International relations theory and multilateralism: the search for foundations. International Organization 1992;46(3):599–632.