- The Washington Times - Monday, June 4, 2001

Avast ye lubbers! Piracy is alive and well in Southeast Asia, where it is posing political problems for policy-makers.
Incidents of piracy in and near the Straits of Malacca and Singapore have recently increased at an alarming rate, in both number and severity. But these modern pirates are a far cry from the swashbuckling rogues of old. Increasingly, their attacks are carried out by international gangs that plan their attacks carefully in advance, hijack a ship with its cargo and sell both in foreign markets.
These modern pirates are often violent and increasingly target ships and citizens of maritime powers like Japan.
Although Southeast Asia has tried to address the problem, its responses and capabilities are inadequate. The maritime powers have raised a hue and cry for immediate and effective action to make the seas safe for navigation. Japan has even proposed a regional coast guard to combat the problem.
But this increasing public pressure has raised both old and new political questions.

Indonesia's problems central

Almost everybody acknowledges that the core of the problem is in Indonesia, where the general breakdown of order — and an apparent lack of will and resources to tackle the problem — appear to be the main factors in the rise of Southeast Asian piracy.
With Indonesia facing possible disintegration, piracy targeting other countries ships is not a high priority for Jakarta at this time. Moreover, the "noninterference" policy of the Association of South East Asian Nations (ASEAN) in the domestic affairs of its member states has hindered coordinated efforts to combat piracy.
For example, many member countries are unwilling to prosecute pirates apprehended in their territorial waters for acts committed in another countrys jurisdiction. Indeed, they seem to prefer to deport pirates rather than prosecute them. And furthermore, since boundaries have not yet been drawn in some parts of the Malacca/Singapore Straits and the South China Sea, jurisdiction over piracy is uncertain in some areas — particularly in the inner Straits.
And some Southeast Asian countries cannot even agree internally on which governmental entity has jurisdiction over this issue — the navy or the coast guard, if they have one.

Piracy definition is touchy

A further problem is that the coastal states and maritime powers involved cannot agree on the definition of piracy. Southeast Asian states oppose a definition that would allow foreign coast guards or naval vessels into their waters. And more fundamentally, the coastal states and the maritime powers cannot agree on whose problem piracy is.
So if the coastal states cant handle the problem, why wont they invite or allow the involvement of outside powers? Sovereignty concerns and jurisdictional uncertainties top the list of reasons.
Almost all acts of piracy in or near the Straits of Malacca and Singapore occur in the territorial or archipelagic waters of Malaysia, Indonesia, or Singapore. And under universally accepted international law, naval vessels or marine police from one state may not enter the internal, territorial, or archipelagic waters of another state to patrol for pirates or to arrest suspects for acts of piracy without the permission of the coastal state.
Ever since NATOs U.S.-led unilateral intervention in Kosovo, sovereignty is no longer a theoretical concern. Indeed some smaller countries view it as the last defense against bullying by bigger powers.

Who will take the lead?

The major powers cannot agree on which country or countries should take the lead in enforcement of anti-piracy measures in Southeast Asia.
Japan is a possible leader of a multilateral anti-piracy effort, but bitter memories in the region of Japans wartime occupation, and its domestic resistance to a foreign military role are major obstacles to carrying out the role. Indeed, some analysts view the idea as a bid by Japan to reassert its waning influence in the region and become a counterbalance to China.
To avoid a dominant and objectionable presence, Japan has proposed that any of its ships participating in a multilateral anti-piracy force be drawn from its civilian-controlled coast guard (the Maritime Safety Agency), rather than its navy (the Maritime Self-Defense Force).
Another significant problem for joint patrols involving Japan is that under the current interpretation of Article 9 of its constitution, its coast guard can only use force if the vessel being attacked is Japanese. That, obviously, would not make Japan a very effective partner in an international coast guard.

Territorial claims intrude

China has opposed Japans leadership of regional anti-piracy efforts from the very beginning, perhaps because it sees it as an attempt to pre-empt Chinas re-emergence as the dominant power in Asia. China might be able to take the lead itself, but its aggressive behavior regarding its claims to disputed islands and its unwillingness to sign a code of conduct for the South China Sea that would defuse tensions have scared off potential partners.
Moreover, China strongly prefers bilateral over multilateral co-operation so that it can better "manage" the relationship. And even if Chinas leadership were acceptable to the region, would China be willing to lead, and if not, will it participate at all in any multilateral effort? And if it does not, can such an effort be effective?
What about the United States leading such joint patrols?
Recently, the United States announced the establishment of an Asia-Pacific Regional Initiative built on U.S. bilateral arrangements with several countries in the region.

U.S. offer stirs concern

U.S. Pacific Command Commander in Chief Adm. Dennis Blair said he hopes the joint U.S.-Philippine "Baliktan" military exercise under their Visiting Forces Agreement (VFA) can be "linked" to the U.S.-Thai Cobra Gold exercises so more governments in the region can undertake joint training of their armed forces.
But is the U.S. proposal for joint exercises acceptable to the region? Or will it stimulate controversy and even tension between U.S. allies (Japan, South Korea, the Philippines and Thailand) and China, as well as other Asian states more concerned with Chinas negative reaction to this idea?
The Philippines has expressed concern that such U.S.-led multilateral exercises could antagonize China. And Beijing protested the U.S.-Philippine-Thai naval exercises held March 21-23 this year near Scarborough Shoal in the disputed Spratley Islands.
Given that the maritime powers are struggling with the leadership question and regional states are struggling with their sovereignty concerns and the extent of co-operation among themselves, what can be done in the meantime?

Informal talks can help

The task at hand is to build a community of policy-makers supportive of multilateral cooperation in an anti-piracy effort.
For example, ASEAN and Japan could broaden and deepen their participation in such regional security bodies as the Western Pacific Naval Symposium (WPNS), which brings together leaders from the navies of the Western Pacific in their "unofficial" capacities to discuss issues of common concern.
But besides more talk, what action can be taken?
In sum, a joint patrol led by Japan, China or the United States would be fraught with political difficulties.
Perhaps a multilateral force comprised of smaller states selected by the coastal states themselves might eventually be possible.
But in the meantime, the best bet is a combination of ad hoc measures — self-help by the coastal states, including enhanced coordination and ratification of the 1998 Rome Convention, and assistance from the maritime powers in training and equipment.
Ratification of the convention would allow — in fact commit — ASEAN governments to prosecute pirates caught in their territorial waters for acts of piracy committed under another countrys jurisdiction.
In Asia, only China and Japan are signatories to this convention.
Although "talk is cheap," over the longer term, frequent Track 2 discussions can broaden awareness of the problems and perhaps identify solutions that may be too sensitive or embryonic for consideration at a Track 1 (official) level. And such talk can help build a community supportive of cooperative action in the marine sphere.

Mark J. Valencia, Ph.D., is a senior fellow at the East-West Center in Honolulu whose research focuses on maritime policy, conflicting territorial claims, and Northeast Asia economic cooperation. For information about the Centers programs or publications, contact Public Information Officer John H. Williams at: [email protected]


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