Portal de Periódicos da CAPES

Maritime Security Initiatives in East Asia: Assessment and the Way Forward

2011; Taylor & Francis; Volume: 42; Issue: 3 Linguagem: Inglês

10.1080/00908320.2011.592471

1521-0642

Suk Kyoon Kim,

Maritime Navigation and Safety

Abstract In the post-cold war era, especially in the aftermath of the September 11, 2001, terrorist attacks, maritime security has become a priority on the national agendas. East Asian countries are concerned about maritime security given their overwhelming dependence on seaborne commerce and the vital importance of the sea-lanes of communication. This article examines the maritime security initiatives, mostly initiated by the United States, that have been adopted and implemented in East Asia. Keywords: maritime security initiativesmaritime security threatmaritime terrorismEast Asia Acknowledgments The opinions expressed in this article are solely the views of the author and are not intended to reflect the position of the Korea Coast Guard. Notes 1. They include the bombings of the USS Cole in 2000, the ramming of the French oil tanker Limburg off the coast of Yemen in October 2002, the attack against the Israeli port of Ashdod in March 2004, and the bombing of the Philippines vessel Superferry 14 in 2004. 2. U.S. Department of Homeland Security (DHS) and U.S. Department of Defense (DOD), The National Strategy for Maritime Security, September 2005, 2. 3. The International Maritime Bureau (IMB) is a specialized division of the International Chamber of Commerce (ICC). The IMB is a nonprofit organization, established in 1981 to act as a focal point in the fight against all types of maritime crime and malpractice. 4. The IMB defines piracy and armed robbery as: “an act of boarding or attempting to board any ship with apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of the act,” as opposed to the definition of piracy of the 1982 U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397, Article 101: a) any illegal acts of violence or detention, or any acts of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed—(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft; c) any act of inciting or of internationally facilitating an act described in subparagraph(a) or (b). The IMB definition of piracy is for statistical purposes and covers actual or attempted attacks whether the ship is berthed, at anchor, or at sea. 5. IMB, “Piracy and Armed Robbery Against Ships, Report for the Period 1 January 1–30 September 2009,” 6–7. 6. Ibid. 7. See Suk Kyoon Kim, “Building a Multilateral Framework to Combat Piracy in Asia: From a Global Governance Perspective,” doctoral dissertation, Hanyang University, Seoul, Korea, 2005, 93. 8. LOS Convention, supra note 4, art. 111(3). 9. Kim, supra note 7, at 93. 10. Ian Storey, “Maritime Security in Southeast Asia: Two Cheers for Regional Cooperation,” in Daljit Singh (Ed.), Southeast Asian Affairs (2009), Singapore: Institute of Southeast Asian Studies, 2009, p. 41. 11. Ibid. 12. Ibid., at 42. 13. ASEAN Regional Forum (ARF), “Statement on Cooperation against Piracy and Other Threats to Maritime Security,” 17 June 2003, available at www.aseansec.org/14837.htm. Pursuant to the 2003 Statement, the ARF and the ASEAN Ministerial Meeting on Transnational Crime (AMMTC), through a number of workshops and meetings, have further focused on the challenge of maritime security and the protection of strategic shipping lanes in the region. 14. Relevant resolutions adopted by the IMO include: A.545(13) “Measures to Prevent Acts of Piracy and Armed Robbery Against Ships,” adopted on 17 November 1983; A.683(17) “Prevention and Suppression of Acts of Piracy and Armed Robbery Against Ships,” adopted on 6 November 1991; A.738(18) “Measures to Prevent and Suppress Piracy and Armed Robbery Against Ships,” adopted on 4 November 1993; and A.922(22), through which the assembly adopted the “Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships” which urges governments to take action to investigate all acts of piracy and armed robbery against ships occurring in areas or on board ships under their jurisdiction and to report to the organization pertinent information on all investigations and prosecutions concerning these acts. Another resolution of note is A.1002(25) “Piracy and Armed Robbery Against Ships in Waters Off the Coast of Somalia,” adopted on 29 November 2007. 15. See Kim, supra note 7, at 95. 16. The ReCAAP Web site is at www.recaap.org/index_home.html. 17. The participating regional countries are: Bangladesh, Brunei, Cambodia, China, India, Indonesia, Japan, Korea, Laos, Malaysia, Myanmar, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam. Indonesia and Malaysia have declined to become a party to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP), citing sovereignty concerns. 18. On March 26, 2009, the Greek-owned MV Nipayia and Norwegian-owned MV Bow Asir were captured at a considerable distance from the coastline and, on 8 April 2009, a Danish-owned merchant ship was captured at 400 nautical miles offshore. 19. The UN Security Council's resolutions concerning acts of piracy off the coast of Somalia include: S/RES/1897, adopted on 30 November 2009; S/RES/1851, adopted on 16 December 2008; S/RES/1846, adopted on 2 December 2008; S/RES/1838, adopted on 7 October 2008; and S/RES/1816, adopted on 2 June 2008. 20. S/RES/1838 (2008), para.2.; S/RES/1846 (2008), para. 9; S/RES/1851 (2008), para. 2; S/RES/1897 (2009), para. 3. 21. S/RES/1851 (2008), para. 3; S/RES/1897 (2009), para. 6. 22. S/RES/1816 (2008), para. 7; S/RES/1846 (2008), para. 10. 23. According to the Ministry of Defense of Japan, as of November 2, 2009, Japanese destroyers deployed in the coast of Somalia and the Gulf of Aden have escorted 236 vessels, including foreign-flagged ships. 24. The Law on the Penalization of Acts of Piracy and Measures Against Acts of Piracy, arts. 7 and 8. The law is available at the Web site of Ocean Policy Research Foundation, www.sof.or.jp/en/topics/09_01.php. An English version is available at www.sof.or.jp/en/topics/pdf/09_01/pdf. 25. Press briefing by the Ministry of National Defense of the People's Republic of China, 20 January 2009, available at eng.mod.gov.cn/Press/2009-01/20/content_4016837.htm. 26. Peter A. Dutton, “Charting a Course: U.S.- China Cooperation at Sea,” China Security 5, no. 1 (2009): 16. 27. Ibid., at 17. 28. Ibid., at 24. 29. The Criminal Act, Article 340(1), prescribes only the crime of sea robbery defined as “any act of depredation of ship or any act of depredation of property, committed at the sea, with the use of power by crowd.” 30. The Criminal Procedure Act, art. 200-4(1). 31. The United States has employed the following definition of terrorism for statistical and analytical purposes since 1983: “the term ‘terrorism’ means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” 22 U.S. Code 2656f(d). 32. See Kim, supra note 7, at 14. 33. LOS Convention, supra note 4, art. 101. 34. See Tammy M. Sittnick, “State Responsibility and Maritime Terrorism in the Strait of Malacca: Persuading Indonesia and Malaysia to Take Additional Steps to Secure the Strait,” Pacific Rim Law and Policy Journal 14 (2005): 758–759. 35. The 1988 Convention for the Suppression of the Unlawful Acts Against the Safety of Maritime Navigation, 1678 U.N.T.S. 221. 36. Ibid., art. 3(1). 37. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, IMO Doc. LEG/Conf.15/DC/1, 13 October 2005, art. 18. 38. Ibid., art. 4(5). 39. The 1988 SUA Convention, supra note 35, art. 6. 40. Paul Parfomak and John Frittelli, “Maritime Security: Potential Terrorist Attacks and Protection Priorities,” CRS Report for Congress, 9 January, 2007, Congressional Research Service, 9–10. 41. Ibid. 42. See ARF, Co-Chairs’ Report, “ARF CBM on Regional Cooperation in Maritime Security,” 2–4 March 2005, para. 7., available at www.aseanregionalforum.org. 43. ASEAN Convention on Counter Terrorism, available at www.aseansec.org/19250.htm. 44. Ibid., art. 1. 45. Korea Coast Guard, “White Paper 2009,” at 63. 46. U.S. Customs and Border Protection (CBP), “Fact Sheet,” October 2007, available at www.cbp.gov/linkhandler/cgov/trade/cargo_security/csu/csu_fact_sheet.ctt/csi_fact_sheet.doc. 47. The U.S. Container Security Initiative Web site is at www.cbp.gov/xp/cgov/trade/cargo_security/csi/. 48. DHS, “Secure Seas, Open Ports: Keeping Our Waters Safe, Secure and Open for Business,” 21 June 2004, 3. 49. CBP, “Fact Sheet,” supra note 46. 50. Ibid. 51. Ibid. 52. The Customs-Trade Partnership Against Terrorism (C-TPAT) Web site is at www.cbp.gov/xp/cgov/trade/cargo_security/Ctpat/. 53. CBP, “C-TPAT Overview,” uploaded on December 13, 2007, available at http://www.cbp.gov/xp/cgov/trade/cargo_security/ctpat/what_ctpat/ctpat_overview. 54. DHS, “A Review of CBP and ICE Reponses to Recent Incidents of Chinese Human Smuggling in Maritime Cargo Containers,” available at www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-40_Apr07.pdf. 55. Security and Accountability of Every Port Act of 2006, U.S. Public Law 109-347. 56. Implementing Recommendations of the 9/11 Commission Act of 2007, U.S. Public Law 110-53. 57. The Secure Freight Initiative Web site is at www.dhs.gov/files/programs/gc_1166037389664.shtm. 58. See DHS, “CBP's Container Security Initiative Has Proactive Management and Oversight but Future Direction Is Uncertain,” February 2010, available at www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-52_Feb10.pdf. 59. The U.S. Megaports Initiative is administered by the National Nuclear Security Administration within the U.S. Department of Energy. 60. CBP, “Secure Freight Initiative: Vision and Operations Overview,” released on December 7, 2006, available at http://www.dhs.gov/xnews/releases/pr_1165943729650.shtm. 61. CBP, “Container Security Initiative: 2006–2011 Strategic Plan,” available at www.cbp.gov/linkhandler/cgov/trade/cargo_security/csi/csi_strategic_plan.ctt/csi_strategic_plan.pdf. 62. CBP, “Singapore Agrees to Join the U.S. Customs Container Security Initiative (CSI),” released on June 4, 2002, available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/legacy/2002/62002/06042002.xml. 63. CBP, “Government of Malaysia to Implement Container Security Initiative,” on March 8, 2004, available at www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2004_press_releases/032004/03052004.xml (accessed March 2010). 64. Dutton, supra note 26, at 5. 65. CBP, “Hong Kong to Scan U.S.-Bound Goods for Radiation as Part of Secure Freight Initiative,” released on July 27, 2007, available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2007_news_releases/072007/07272007_2.xml. 66. Convention for the Safety of Life at Sea (SOLAS), 164 U.N.T.S. 113, incorporating the International Ship and Port Facility Security Code (ISPS Code), by amendment, in the new Chapter XI-2 of the Annex, Preamble 1. 67. Ibid. 68. Eric J. Lobsinger, “Post-9/11 Security in a Post-WWII World: The Question of Compatibility of Maritime Security Efforts with Trade Rules and International Law,” Tulane Maritime Law Journal 32 (2007): 76. 69. SOLAS, supra note 66, chap. XI-2, part A, 3.1. 70. Harmut G. Hesse, “Maritime Security in a Multilateral Context: IMO Activities to Enhance Maritime Security,” International Journal of Marine and Coastal Law 18 (2003): 331. 71. SOLAS, supra note 66, chap. XI-2/3. 72. Ibid., chap. XI-2/4. 73. Ibid., chap.V/19-1. 74. Maritime Transportation Security Act of 2002, U.S. Public Law 107-295. 75. Ibid. 76. Security and Accountability for Every Port Act of 2006, U.S. Public Law 109-347. 77. Ibid. 78. Zhang Shouguo, Department of Water Transport, Ministry of Communication, China, “Playing an Active Role in Fulfilling Maritime Security Obligations,” presented at the OECD Workshop on Maritime Transport, Paris, 4–5 November 2004, available at www.oecd.org/dataoecd/19/61/33949707.pdf. 79. Ibid. 80. Ibid. 81. Ibid. 82. The Law for the Security of Ships and Port Facilities, enacted in 2003 (No. 31), available at law.e-gov.go.jp/announce/H16HO031.html. 83. Japan, Ministry of Land, Infrastructure and Transport, “What is the Law for the Security of Ships and of Port Facilities?” uploaded in 2004, available at www.mlit.go.jp/seisakutokatsu/solas/e-index2.html. 84. Law on Security of Ships Engaged in International Voyage and Port Facilities, enacted in 2007 (No. 9773), available at http://law.go.kr/lsInfoP.do?lsiSeq = 94551#0000. 85. General Information Center on Maritime Safety & Security (GICOMS), Ministry of Land, Transportation and Maritime Affairs, Korea, available at www.gicoms.go.kr/knowledge/know_list.asp?board_gubun=3&div=400&page=12&searchstr=&SearchPart=. 86. U.S. Department of State, Bureau of International Security and Nonproliferation, “Proliferation Security Initiative,” available at www.state.gov/t/isn/c10390.htm. 87. U.S. Department of State, “Interdiction Principles for the Proliferation Security Initiative,” available at www.state.gov/t/isn/c10390.htm. 88. Ibid. 89. “Bill Laying Out Rules for N. Korean Cargo Inspection Heads to Diet,” 8 July 2009, available at search.japantimes.co.jp/print/nn20090708a7.html. 90. U.N. Security Council Resolution S/RES/1874 (2009). 91. Suk Kyoon Kim, “Korean Peninsula Maritime Issues,” Ocean Development and International Law 41 (2010): 180. 92. U.N. Security Council Resolution S/RES/1718(2006), para. 8(2)(f), where the UN called on all member states to take cooperative action, including through inspection of cargo to and from North Korea in order to prevent illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery and related materials. 93. Kim, supra note 92, at 180. 94. Ian Storey, supra note 10, at 40. 95. See Joshua A. Lindenbaum, “Assuring the Flow: Maritime Security Challenges and Trade Between the U.S. and China,” Richmond Journal of Global Law and Business 6 (2006): 100. 96. The Tokyo Port State Memorandum is available at www.tokyo-mou.org. 97. Port State Committee of the Tokyo MOU, “Annual Report on Port State Control in the Asia-Pacific Region 2008,” 1, available at www.tokyo-mou.org/ANN09.pdf.