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Rampant piracy posing political problems for Southeast Asia’s policymakers

by Mark J. Valencia

Piracy is alive and well in Southeast Asia, and it is posing political problems for policymakers. Piracy incidents in and around 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 these crimes are perpetuated by organized international gangs that plan the caper well in advance, hijack the ship with its cargo and sell both in foreign markets. These modern pirates are also 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 indigenous capabilities are no longer adequate. The maritime powers have raised a public 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.

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 in Southeast Asian piracy. With Indonesia facing possible disintegration, piracy of other countries’ ships is simply not a high priority for the Indonesian government at this time. Thus the problem is more fundamental and requires longer-term, broad economic development.

Further, the Association of Southeast Asian Nation’s policy of “noninterference” in the domestic affairs of member states has hindered coordinated efforts to combat piracy. For example, many member countries are unwilling to prosecute pirates in their own territorial waters for acts committed under another country’s jurisdiction. Indeed, they seem to prefer to deport pirates rather than prosecute them.

Moreover, 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 who has jurisdiction over this issue — the navy or the coast guard, if they have one.

Another problem is that the involved coastal states and maritime powers cannot agree on the definition of piracy. Southeast Asian states oppose a definition that would allow foreign coast guard 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 can’t handle the problem themselves, why won’t 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 people for acts of piracy without the permission of the coastal state.

Ever since the 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.

Besides, the major powers cannot agree on which country or countries should take the lead in enforcement in the region. Japan is a possible leader of a multilateral joint anti-piracy effort. But bitter memories in the region of Japan’s wartime occupation and its domestic resistance to a foreign military role are major obstacles to carrying out its proposal. Indeed, some analysts view the proposal as an attempt 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 its ships that would be participating in the proposed multilateral antipiracy force be drawn from its civilian-controlled coast guard rather than from its navy.

Another significant problem for joint patrols involving Japan is that under the current interpretation of Article 9 of the 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.

China has opposed the Japanese proposal from the very beginning, perhaps because it sees it as an attempt to pre-empt China’s re-emergence as the dominant power in Asia. China might be able to take the lead but its aggressive behavior regarding its claims to disputed islands in the region 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 cooperation so that it can better “manage” the relationship. And even if China’s 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 U.S. announced the establishment of an Asia-Pacific Regional Initiative built upon U.S. bilateral arrangements with several countries in the region. Commander in chief of the Pacific Admiral Dennis Blair said he hopes that the joint U.S.-Philippine “Baliktan” military exercise, held under the Visiting Forces Agreement, can be “linked” to the U.S.-Thai Cobra Gold initiative 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 China’s negative reaction to this bold initiative? 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 near Scarborough Shoal in the South China Sea.

Given that the maritime powers are struggling with the leadership question and regional states are struggling with their sovereignty concerns and the effectiveness of cooperation among themselves, what can be done in the meantime? The task at hand is to build a community of policymakers supportive of multilateral cooperation in an antipiracy effort. For example, ASEAN and Japan could broaden and deepen their participation in such regional security forums as the Western Pacific Naval Symposium, 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 U.S. 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 will commit ASEAN governments to prosecute pirates caught in their own territorial waters for acts of piracy committed under another country’s 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 potentially 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.