Concerns about preserving the integrity of territorial sovereignty of the state have been a driving determinant for the way that states have worked together on non-traditional security at sea. A significant determinant of whether states in the Caribbean and Southeast Asia will cooperate to enforce law at sea is whether proposed mechanisms applied a ‘rule of law’. The United Nations Convention on Law of the Sea 1982 (UNCLOS) is primarily a legal regime upon which security cooperation at sea has been based but comprises only one of several forms of international law at sea that have codified norms of state behaviour. Together, the United States and United Nations are significant players in the creation of legitimate regimes of law enforcement at sea within the Caribbean and Southeast Asia.
6.2 Comparing Case Studies
Comparing cases, interactions of states in both regions have clearly included participation in formal arrangements with other regional actors; the differences of method and membership of cooperation suggest change over time as well as varying attitudes towards particular actors. Despite having varying priorities and capacities, states do not appear averse to cooperating on non-traditional security matters but some states in both case studies have cooperated on non-traditional security at sea when the arrangements have satisfied two base conditions. First, a grounding in legal frameworks that have the imprimatur of United Nations conventions, codes or treaties. Second, that maritime security cooperation between international actors is tailored to meet the needs of individual states. Capacity building may also be a significant contributing incentive although it is not always a primary reason why states engage in non-traditional security cooperation.
Regime building helps to explain such behaviour. Actors have sought agreement on the norms and expectations by which they have agreed to abide, unburdened by Cold War priorities and bi-polarised global security structures. Some Caribbean states agreed to arrangements grounded in rule of law principles, and encompassing agreed rules and accepted norms. Within the Caribbean during the 1990s, Caribbean states accepted that the United States’ non-traditional security interests aligned with their own national security objectives––to reduce the prevalence of narcotics smuggling and the violence and corruption with which it had become associated. Within Southeast Asia, a regime of law enforcement at sea enabled states to overcome their differences by identifying with mutual internal and external security threats (crime and violence) at sea. Inasmuch as the United States was able to reinforce its own interests in the Caribbean because they coincided to a significant degree with the interests of other actors within the same region, it still did not realise a similar outcome within Southeast Asia during the period of anti-terrorism securitisation, following the events of 9/11. Bilateral arrangements to enforce law at sea permitted a number of Caribbean states to retain options; to make decisions about the type of legal structures they required to protect their non-traditional security interests at sea.
However, the Caribbean bilateral agreements did not make concessions to the national interests and priorities of other actors within the region. This was made apparent when the later proposal for a multilateral mechanism resulted in reluctance by many Caribbean states, though already party to the bilateral agreements, to make further concessions beyond those contained within the existing arrangements. This appears to signify that cooperation was limited and specific as far as enforcing law at sea is concerned. The Caribbean agreements were neither strategic military arrangements between states, nor an unconditional permit for the United States to conduct law enforcement within individual Caribbean state territories. What they did was to clarify the permission seeking procedures that United States marine authorities should follow.
This perspective ‘fits’ the experiences of the key Southeast Asian states, Singapore, Malaysia, Indonesia and Thailand, who were able to coordinate amongst themselves and from a realist perspective, were significant managers of security cooperation within this regional system of states. Key Southeast Asian states made the decision to coordinate with other regional actors because all of the actors faced a similar maritime security dilemma. They either must cooperate with each other on a sensitive regional security issue, or allow external states to take the initiative and provide the type of security within the Malacca and Singapore Straits that suited their needs. External management of security presented an inherent risk to the integrity of territorial sovereignty. The first option avoided the pressure of external actors, in particular the United States. The second option risked some loss of decision-making ability about the conduct of maritime security within the Malacca and Singapore Straits. Within the Caribbean Sea, the United States initiated a means to enforce law at sea through conjoining security interests and international law based upon the United States’ advocacy of rule of law. Therefore, this liaison of United Nations legitimacy and United States principles has been an important means to build confidence and influence behaviour.
Without conceding territorial rights, states in Caribbean and Southeast Asian regions retained decision-making control, adapted coordination of effort and limited capacities to meet perceived national interests and requirements. Law enforcement practice within the Caribbean facilitated inter-operability of external and domestic marine authorities operating proximate to maritime borders. Before the coordinated patrols and information sharing in the Caribbean Sea, there had been delays in seeking permission providing a loophole in practice that suspects exploited by using the delay to flee across maritime borders. However, despite the efficacy of this approach, Southeast Asia’s law enforcement, cooperation strategy at sea did not allow cross-border pursuits, opting instead for coordinated patrols and information sharing arrangements. Marine authorities remained outside the territorial sea of neighbouring states. Where there was cooperation in Southeast Asia, authorities communicated information through improved intelligence sharing. Rather than allowing authorities to cross into neighbouring territories, states opted to increase the information flow and track suspects electronically. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) Information Sharing Centre became a key component of this concept, because electronic surveillance data could flow across borders, informing neighbouring state authorities without compromising the integrity of their sovereignty. Although the system required a high degree of trust that action is taken against suspected vessels, the arrangement was in keeping with ASEAN values of non-interference that defines all regional cooperation. ReCAAP Information Sharing Centre therefore was not an obstruction to confidence building between states. It offered a means of information dissemination and threat analysis whilst allowing governments to manage their own security without being managed by peer states.
Within Southeast Asia, states deemed the risk of avoiding cross-border pursuits (if no follow-up action was taken) as acceptable, whereas in the Caribbean, bilateral arrangements between the United States and individual states indicated a higher degree of trust. The six-part bilateral agreements allowed entry of USCG vessels and personnel entry because of permission-seeking arrangements. The implications of cross-border pursuits presented an issue typical of similar problems of jurisdiction when police pursue suspects across jurisdictional borders on land; police from different states (or counties) must have arrangements in place to enable pursuit of suspects to continue across frontiers. Territorial sovereignty carries a mutual understanding that naval or policing authorities do not carry power to act rights within states that are not their home-states, even though permitted to enter other states when prior permission arrangements are in place. Consequently, maritime law enforcement, security mechanisms such as the bilateral agreements in the Caribbean, and the Malacca Straits Security Patrols MSSPs in Southeast Asia, sought to promote law enforcement coordination between states that lie proximate to other states in order to avoid impeding pursuit of suspects. States were willing to coordinate law enforcement at sea because this minimised the potential for political misunderstandings or conflict. Recognising the need for states within the Caribbean region to address problems of governance ashore, the United States sought to strengthen law enforcement in border regions in a bottom-up negotiation whereby the USCG provided a diplomatic avenue of negotiation. This contrasts with the top-down approach, when the United States proposed what appeared to be a strategic naval initiative in the RMSI.
A combination of factors brought closer a potential transfer of regional security management to external actors. Accusations by external states suggested external military forces. The littoral states along the Malacca and Singapore Straits were responsible for the security within their territorial seas, and the international sea-routes that passed through them. Reports by the International Maritime Bureau (IMB) Piracy Reporting Centre of increasing pirate attacks and the war-risk assessment by Lloyd’s of London, led to the three key states within Southeast Asia seeking to avoid a possible externally controlled solution. Increasing information sharing through ReCAAP ISC and maritime security coordination through the MSSPs patrols mitigated the sense that states lay idle and indifferent to the security responsibilities that they had agreed to by signing the United Nations Convention on Law of the Sea 1982 (UNCLOS).
Caribbean states had limited options when considering the bilateral maritime agreements with the United States, regardless of whether they had signed UNCLOS. Some island states within the Caribbean Sea simply did not have the capacity to patrol or police vast offshore areas and could enforce law only within a narrow band of territorial sea. Similarly, a lack of capacity also limited the level of participation of states along the Malacca and Singapore Straits, particularly Indonesia. Caribbean states have in the past also had limited capacity to patrol beyond their own littoral, and consequently, their motivation to align with United States interests was the potential for both capacity-building and a reduction of violence onshore. In some ways, the rejection of wide-participatory arrangements in Southeast Asia bears similarities with Caribbean states who continue to avoid a multilateral version of the many existing bilateral maritime security arrangements. A low level of interest in the CRMA, less than five states willing to sign the agreement, indicated that states would not accept inevitable concessions to the needs of multiple regional actors. In a way, the Caribbean Regional Maritime Agreement (CRMA) proposal elicited reluctance by states to change existing arrangements. Directly negotiating with one partner state in order to reap the benefits of increased capacity had been acceptable, albeit with a general wariness of trying to fix something that still functioned.
In Southeast Asia, states accepted that piracy at sea against ships was a clearly defined crime, involving violence and attracting external interest. It was therefore a problem directly or indirectly affecting political decision-making. A politically acceptable solution to maritime security was only one of many problems confronting the Southeast Asian straits states. UNCLOS and IMB definitions of piracy at sea and armed robbery at sea clarified the legal scope for enforcing counter-piracy at sea laws, but settling on terms by which patrols and information could be coordinated, without conceding the integrity of territorial sovereignty, was critical. This occurred in Southeast Asia by ensuring that states had the capacity to set goals and meet responsibilities.
Within both the Caribbean Sea and Southeast Asia, national interest and physical capacity shaped the level of security cooperation between states. Political as well as practical objectives defined the scope of operational deployments. Coordination of capabilities was the most likely outcome of cooperation as it was least likely to threaten the integrity of territorial sovereignty of individual states. The interests and perspectives of the participating states therefore defined the actual operation of law enforcement in maritime border regions. C.R. Mitchell’s definition of conflict resolution helps to illustrate the metaphor. Mitchell argues that the process of working toward the ‘elimination and termination’ of conflict ‘addresses underlying causes’ whereas ‘conflict management’ only seeks to reduce and hold in check the violence without actually eradicating its root causes.
As demonstrated in Chapter Two, regime theory informs us that states cooperate and form security regimes when states agree to abide by rules and norms of behaviour because they believe that other states who participate in an arrangement will act in the same way. In Southeast Asia, notably Lloyd’s of London portrayed pirate attacks as the region’s most significant maritime crimes because pirates targeted international merchant shipping. Piracy was more significant for its economic affect than any concerns about the perpetrators or underlying reasons for their behaviour. Therefore, national interest and attitudes about the intentions of other states were significant factors in determining when states cooperated on security matters than the actual threat or its underlying causes.
Actor attitudes played a significant role in the way that states inter-related, determining accepted norms and principles of cooperation. On the one hand, the observation that external powers (in particular the United States but also other actors) unduly exerted influence challenged international acceptance of the territorial sovereignty of states. On the other hand is the observation that while some states benefited from increased law enforcement capacity, disproportionate costs compared to benefits and the ability of states to decide outcomes may limit the appeal of cooperation. Southeast Asian actors weighed the cost and threat of criminal activity at sea against the ‘cost’ to the integrity of national interests if they did take action, or if they did nothing. Within the jurisdiction of a littoral state, maintaining stable regional relations weighs against the provision of security for maritime users together with how it is alleged to affect the sovereignty of the state. As mentioned elsewhere, although security at sea is the responsibility of the territorial state, especially in international straits through territorial seas, such as the Malacca and Singapore Straits, to suggest an inability of a state to manage crime occurring in proximity to its territories or within its areas of responsibility has challenged capacity of state authorities to provide internal security. Therefore, whether through political indifference or fear of external interference or lack of capacity – possibly one a consequence of the other – the paucity of maritime security within state territories reflects a regional reluctance to address security problems through cooperative means outside domestic state laws and jurisdictions (effectively, to seaward of the territorial sea). International demands for improvements to law enforcement in Southeast Asia suggest that inadequacies existed, such as increasing piracy at sea, allowing the states to adapt to threats to sovereignty and regional security by modifying regional norms of non-interference.
The approach of states within the Caribbean differed to those of Southeast Asian states because portrayal of crime and violence at sea in each region varied, affecting actors in dissimilar ways. Pirate attacks in Southeast Asia have been crimes affecting ships and crews of external states, its victims often external to the region in which the crimes occurred. Narcotics trafficking in the Caribbean Sea, on the other hand, supported violence and crime within coastal microstates and the United States mainland, attracting regular media interest – it has been visible, its interdicted narcotics often depicted in photographs. Whereas this visual portrayal indirectly affected public and political attitudes of Caribbean governments, piracy at sea in Southeast Asia has been covert; a crime at sea that lacks spectacular imagery and therefore is underreported in various media. Unlike piracy, hijacking and hostage taking off Somalia, where media has played a part in public awareness, the violence of crime within and proximate to coastal Malacca and Singapore Straits littorals was a low profile issue, allowing it to become officially non-prioritised and officially regarded as an overstated threat.
6.3 Sovereignty and Self-interest
Purpose and perspective have intertwined beyond the concept stage of law enforcement cooperation and have ultimately shaped security cooperation between states in its wider sense. A roadmap legitimacy of norms and conventions of behaviour at sea, UNCLOS regime has not translated into wide acceptance of the CRMA, or widening the MSSPs into a more regionally inclusive program. As it is not a regime due to its limited membership, it is an agreement on the ways that security coordination will occur and is therefore a basis for regime building. Processes of negotiation over time have built upon bilateral and multilateral agreements such as the shiprider and RSS agreements in the Caribbean and ReCAAP and the MSSPs agreements in Southeast Asia. Negotiations in the Caribbean Sea and Southeast Asia have been dynamic, but on-going maintenance through negotiation and review between signatories and reassessment of what the agreements are trying to achieve would continue to be inclusive of national interests, priorities and capacities of participating states.
Yet, because liberalists challenge realist’s assumptions regarding the norms of cooperation behaviour between actors in the international system of states, it is within assumptions about legitimacy that the Caribbean experience differs to Southeast Asia. States in the Caribbean cooperated with the United States as a world power because its security interests appeared legitimate. This was not the case in Southeast Asia and this raises the question of legitimacy of a United States-led ‘war on terror’. Definitions of ‘terrorism’ as a political or socially driven crime do not include piracy at sea, and did not include it even after 9/11. The assumption that is not excluded from these definitions even though by definition, acts of piracy at sea includes terror. This is a redefinition of security that incorporates acts against the state, rather than individual or private commercial interests, such as vessels and crew. In Southeast Asia, military and police were authorities of the Malacca and Singapore straits states who eventually were willing to act against piracy but avoid wider securitization issues, such as a ‘war on terror’. In a ‘security continuum’, all strata of armed responding authorities target non-state criminal activities by means of flexible rather than strictly military or policing approaches. Terrorism is a threat to the state but its definitions leaves room for interpretation as to the flexibility of response that Fort advocates. For the United States Department of Defense (DoD), terrorism is a ‘calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.’ The United States Department of Justice (DoJ) is less specific, defining terrorism as ‘the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.’ Whereas ‘social objectives’ refers to changes to the function of society, terrorism in both definitions is an attack against the state. Caribbean and Southeast Asian states have cooperated through bilateral and multilateral maritime security arrangements whose international institutions form the legal basis for cooperation mechanisms, and support liberal ideals of community and institutionalism. The state creates the appropriate regulatory frameworks and institutions by which to change society for the better, so that terrorism is one means to a ‘social objective’.
In a regional sense, agreements between states for the provision of security at sea form the basis for regional security regime building, if the terms of the agreement become law, are enforced, and become normalised. Maritime law enforcement has been a sensitive subject for governments; when criminal activity at sea that involves violence occurs, the perception of threat to the national interests of each actor within a region has been a determinant for cooperation. The authority of less powerful Caribbean and Southeast Asian actors has been strengthened when they have endeavoured to show independence in their decision-making, self-help through interacting with neighbours, and initiative in leadership.
For cooperation to occur between states in the Caribbean and in Southeast Asia, states needed to be confident of a convergence of interests. Existing converging interests include trade interdependency, a need for security as a common regional concern, and prior regional confidence building alliances between actors. An agreement or treaty indicating that states with converging interests are sometimes willing to cooperate to achieve certain outcomes provides a basis for international order. Duncan Snidal and Kenneth Abbott deems international agreements effective only when the outcomes are a result of meeting three changes in the way that states conduct their affairs. This requires firstly, that agreements include details of how actor’s behaviour requires modifications; secondly, that actors of consequence to the outcome of agreements participate in the arrangements; and thirdly, that actors consider that changes to their behaviour will be necessary if they are to participate in agreements.
Without these principals, agreements will have no real consequence and cooperation will have no real and enduring basis. Caribbean states would appear to have met each of these requirements, each actor was able to negotiate on the modifications to its behaviour; this was made easier with only two participants in bilateral agreements. In Southeast Asia, only certain regional actors were participants, although the arrangements only minimally changed behaviour because the participants opted for coordinating activity rather than cross-border permission that Caribbean arrangements entailed.
Cooperation, Sovereignty and Legitimacy
Sovereignty and law have been central tenets around which Caribbean and Southeast Asian states have been able to resist pressure from powerful states who no longer can legitimately claim to be pursuing their strategic security aims in the interest of others. Powerful states, such as the United States, when intent on persuasive influence over smaller states and regional interests have long sought legal arguments to defend their behaviour. Historically, one of the most prominent legal theoreticians was Hugo Grotius, whose concepts of sovereignty and ownership founded the rights of states within maritime realms. At that time, development of laws peculiar to seafaring depended upon interpretations by states seeking to retain command of ocean territories. Although international disputes and conflict occurred at sea, no state had sovereignty –that is, legal ownership and control - over the oceans. In his opus, ‘Freedom of the Seas’ (Mare Liberum, 1608), Grotius sought to establish the power of colonial rule but fundamentally provided a basis for modern law of the sea. Sovereignty was a tool by which dominant powers excluded rival states; denying access through law to protect acquired territories. For Grotius, ‘high seas’ were firstly, the property of no one (res nullius); secondly, a common possession (res communis); and thirdly, public property (res publica). Therefore, sovereignty was viewed as ownership of waterways and maritime regions, a means of exclusion. In the post-Cold War era, as the veil of bi-polarity is lifted, states retain the legal benefits of sovereignty, and the ability to defend the integrity of territorial possessions.
Given the task of elaborating his principle of the freedom of the seas in a brief on the Law of Prize submitted on behalf of the Dutch East India Company, Grotius was arguing that the seas could not be owned, and established a legal principle of high seas rights. Grotius was aiming to justify the capture of a Portuguese galleon (Saint Catherine) by a company vessel that occurred in the Straits of Malacca in 1603. States could not individually or collectively acquire high seas areas by occupation since they are the ‘common heritage of all states’ (res communisomnium), or ‘of common heritage’ (res extra commercium) but overseen by a governing body. The United Nations might well be a governing body that Grotius intended, as it has been the principle forum for determining international maritime law from customary practice.
Law of the sea was a useful peacetime set of rules to guide the rights of states at sea, to set limitations on proprietorship of marine territories, and give equal weight to the rights of smaller and larger states. A letter from the Duke of Normandy to the King of Prussia’s Secretary of the London Embassy in 1753 proclaimed that protection under law of cargo-carrying vessels on the high seas would not extend to ships that carried goods that would support a belligerent’s war efforts. Neutrality was, and has remained, conditional on the type and destination of a vessel’s cargo, especially in times of conflict but also in times of uncertainty. In the same era that Grotius made his legal arguments, other opinions on law at sea were leading towards similar conclusions. Russia affirmed similar principles in diplomatic correspondence in 1587 with England, that the sea is a road made by God, and England’s Elizabeth I in 1602 defended Sir Francis Drake regarding his legal piracy at sea when challenged by Spain. However, in 1613, Scottish lawyer William Welwood contested Grotius arguments. In his book, Sealaws of Scotland, titled ‘The Community and Propriety of the Seas’, Welwood argues that the Roman law that Grotius refers to––res communisomnium––of common heritage - applied only to Romans; that is, the concept of ‘freedom’ did not apply to contemporary states. John Selden concurs with Welwood, and appears to refute Grotius’ arguments. In, The Closed Sea or Two Books Concerning the Rule over the Sea (Mare Clausum, seu de Dominio Maris Libri Duo (1635), Seldon put forward the idea that the world’s oceans should be appropriated by and divided among states or naval powers.
Despite some opposition to Grotius’ position, law of the sea limited the extent to which powerful states could claim vast ocean regions and this has implications today. Even though the states currently claim commercial interests in the seabed, powerful states manage security interests on the high seas rather than staking claims to international seas. David Moran points out that even Christopher Columbus, who landed inadvertently on what is today North America, undertook his voyage for commercial gain more than scientific motives, on behalf of his royal patrons. In that instance, questions were raised about ownership of the discovered new lands and the seas that surrounded them.
A notable legacy of Grotius is the United Nations Convention on the Law of the Sea (UNCLOS). Grotius’ implied spirit of mutual use of the sea is enshrined within the preamble of UNCLOS, where basic principles for a practical and equitable use of the seas are declared aims: ‘a spirit of mutual understanding and cooperation … [contributing] to the strengthening of … security and cooperation’. Additionally, Article 197 declares that states should use international organisations in order to ‘co-operate on a global basis and, as appropriate, on a regional basis’ when ‘formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention … taking into account characteristic regional features’. UNCLOS also allows participating states to opt out of adhering to the letter of the Convention, especially where there are military disputes, whilst still using the provisions of the Convention to protect territorial sovereignty. UNCLOS has been more controversial, and where most contradictions have arisen is in its development and use by the United States as a legal means upon which to base cooperation between nations at sea on security matters.
Whilst an exhaustive examination of UNCLOS is beyond the scope of this thesis, a brief summation of its development will clarify its relationship with the United States as a tool of influence and legitimacy in international agreement making. Although the United States initiated the codification of the law of the sea, other states could see negligence of duty; as a dominating global power the United States fails to lend its imprimatur by upholding the principles of ‘rule of law’ by delaying formal acceptance of UNCLOS. This seems at odds with the United States role in initiating maritime law enforcement agreements. Reluctance on the part of the United States to ratify international agreements that do not neatly match national interests, suggests an antagonism toward international law generally, and that the United States continues prioritising its own national interests.
Achieving consensus between states on maritime security issues has been problematic; the complexity of codifying a large body of customary law was illustrated by the lengthy development of law of the sea. The first conference held at Geneva from 24 February to 27 April 1958, clarified for wider international acceptance, a codified form of laws previously accepted widely as customary practice. The Geneva Convention on the High Seas 1958 (High Seas Convention) was accepted maritime practice, and as a legal doctrine its 37 Articles broadly covered aspects of maritime practice. Although it did not specifically address law enforcement at sea, it could be used for resolution of disputes that involved practices stemming from policing at sea. Consisting of codified customary law, its set of conventions provided the basis for the third United Nations Conference on Law of the Sea (UNCLOS), held from 1973 to 1982. Therefore, UNCLOS replaced the 1958 Law of the Sea treaties (also based on customary practice) and clarified the rights, rules and regulatory measures applicable to the behaviour of all state and non-state actors who use the sea. Articles 14 to 21 referred directly to piracy at
sea against ships and Articles 22 and 23 refer to interception of ships, including those suspected of piracy at sea, and to the rights and limitations of ‘hot pursuit’.
Hot pursuit activity potentially challenges a state’s authority over its own territories because in its maritime context, hot pursuit refers to the pursuit by authorities of suspected vessels across political boundaries. Each state is responsible for policing its home territorial waters according to international law but it is unable to do so within the territorial waters of other states without prior permission. To a certain extent, and in the absence of clear guidelines and agreements with other states, the high seas (international waters) have also been beyond the jurisdiction of maritime state law enforcement. Therefore the provision of prior agreements between states, such as decisions about whether foreign authorities can pursue suspect vessels into the territory of other states, known as a ‘hot pursuit’, or who should be able to arrest suspects, has been crucial, and relied upon states cooperating to overcome the complex legal and political hurdles. To facilitate some clarity on this aspect of enforcing law at sea, UNCLOS Part VI, Article 111 (Right of Hot Pursuit) clearly lays out the rules of engagement for law enforcers pursuing suspects into a state that is not their home state. This reinforces a rule of law principle; that sovereignty must be respected regardless of the reasons behind incursions by marine authorities.It might be expected that the United States would have supported UNCLOS’rule of law principles, thereby adding to its legality but slow adoption of the convention through ratification suggests otherwise.
Although the United States was instrumental in the codification of UNCLOS and has been willing to abide by most of its conventions, its official reluctance to adopt all of its provisions underscores the contradictory nature of its actions in seeking to legitimately bind nations to other mechanisms that require security cooperation at sea. Under President Richard M. Nixon, the United States promoted codification of the law of the sea, based on existing customary law in a 23 May 1970 statement on oceans policy. The United Nations Law of the Sea Convention (UNCLOS) held from December 1973 until December 1982 raised concerns about claims to resources in international offshore areas. Developing states desired to protect resource access beyond national jurisdiction, whereas national and multinational corporations within the United States sought legal backing for deep-sea mining. Under President Ronald Reagan’s administration, concern about the lack of protection for deep seabed mining under UNCLOS but agreement that the United States should abide by the convention (without ratification) until the deep-sea mining issue (part XI of the convention) was resolved, meant that the issue was in limbo. Under United States President George H.W. Bush, amendments to the agreement appeared in UNCLOS in 1994. Bush argued that the Convention would serve United States national interests, including the maritime mobility of its armed forces, secure United States sovereign rights over extensive marine resources, and crucially, give the United States a seat at the table when ‘the rights that are vital to ... [United States] … interests are debated and interpreted.’ Nevertheless, the treaty was still not ratified although the United States signed the UNCLOS agreement on 29 July of that year; both the 1982 and 1994 Conventions were sent to the United States Senate in October 1994; and, two Senate hearings on UNCLOS in October 2003 and February 2004, leading to its approval by a Senate review committee. By January 2009, United States Secretary of State, Hillary Clinton made the issue a priority but again, UNCLOS was not passed into force. Therefore, although the United States had been actively discussing UNCLOS, supported its ratification, and intended to adhere to the Convention’s implementations, its reluctance to bring this body of rules, principles and procedures into force did little to strengthen international confidence when later security at sea mechanisms were proposed.
Despite this, UNCLOS did gain the imprimatur of almost all other states internationally, as well as continuing support with the United States government. The convention allowed for flexibility in the rate that states ratified it and regarding the options for states to opt out of its conventions, so that by 31 October 2007, 155 states had signed and ratified the treaty. The 2007 Senate Committee Foreign Relations report described UNCLOS as ‘a jurisdictional regime for the world’s oceans’. The report supported ratification of UNCLOS, noting the mediating aspect of the Convention as it displays a careful equilibrium between the international community interests, which are to maintain freedom of navigation, and the concerns of states regarding coastal areas. In his examination of the development of UNCLOS, Budislav Vukas - a judge at the International Tribunal for the Law of the Sea in Hamburg - went further. Vukas described UNCLOS as the most far-reaching and multifaceted treaty ever concluded, with many interesting solutions.
In line with other international ‘law’, Article 108 of UNCLOS urges international cooperation but such action is a prerogative of states. For example when Singapore, through the International Criminal Court of Justice, sought to claim a 12 nautical mile territorial sea and an exclusive economic zone (EEZ) around Pedra Branca in July 2008, the Malaysian Foreign Minister, Datuk Seri Dr Rais Yatim, pointed to both the spirit of solidarity and understanding of membership to the Association of Southeast Asian Nations (ASEAN), and also to the provisions within UNCLOS.
Dissimilar Cooperation Outcomes
It is clear that security cooperation at sea, through dissimilar means, achieved effective outcomes amongst some Caribbean and some Southeast Asia states. At a glance, both regions have characteristics that make them suitable from which to draw conclusions about the changing nature of security at sea geographically. Both are archipelagos containing a great diversity of small and medium sized states with various economic and strategic relationships and territorial claims. Significant differences are apparent in the way that states cooperated to improve security at sea. In both cases, the United States was present as an actor of significant influence, seeking to initiate a response to its own national security needs.
In each region, the influence of United States involvement differed; nevertheless, it prompted regional states to take action that they might not otherwise have taken were the United States not involved. In the Caribbean, states small and large had a common security concern in narcotics smuggling. In Southeast Asia, the attitude to piracy at sea varied and it was not until the projection of the war on terror as an imperative by the United States that piracy at sea became the vehicle for cooperation. Therefore, cooperation was conditional upon all actors seeking to overcome a threat that was common to their collective national interests. Certain Caribbean actors concluded that self-interest coincided with community interests, although poor support for multilateralism indicated that it was not necessary that every state cooperated with other states in the region.
Since the end of the Cold War, through the 1990s and into the first decade of the 21st Century, the United States offered practical maritime law enforcement and capacity building support to both Caribbean and Southeast Asian actors. The provision of an increased patrolling presence of United States Coast Guard (USCG) vessels and aircraft for surveillance was something sorely needed by states in both the Caribbean and Southeast Asian regions, who had limited resources to provide security within their own territorial seas or maritime border zones. It made sense that Caribbean states would take up the offer and sign the one-on-one, bilateral agreements with the United States. Rejection of similar support in Southeast Asia due to inadequate consultations and/or misunderstood intentions during an anti-terror campaign that targeted a major cultural group, illustrated the problematic nature of cooperation when confidence in the actors intentions is low.
Although the influence of the United States was clearly a common denominator in security cooperation at sea in both cases, despite its initial failure as an accepted security partner in Southeast Asia, the success of American engagements is its focus on maritime law enforcement. Despite the apparent self-interest of states, supporting neo-realist perspectives that states will seek relative gains, regional groups of actors indicated a willingness to cooperate on security issues when formal arrangements have had the imprimatur of United Nations conventions. Bilateral maritime law enforcement agreements between the USCG and Caribbean maritime states, based on the legal framework of the 1988 United Nations Drugs Convention meant that Caribbean states could participate in bilateral maritime law enforcement agreements with the United States, because these arrangements aligned with their national security interests. Southeast Asian states preferred to take responsibility and retain control of the way that law enforcement at sea is coordinated even though their interests still aligned with the intent of the United States. Consequently, due to reluctance to accept the United States as a security partner on a specific issue, Southeast Asian states indicated a shift away from automatic reliance on major power participation. Although the three states with the most interest in the Malacca and Singapore Straits avoided a partnership with the United States, rejection of RMSI prompted other forms of cooperation, such as Eyes-in the Skies, and Malacca Straits Security Patrols (MSSPs). Therefore, the national security interests of specific regional states (Indonesia, Malaysia and Singapore) aligned regarding a specific area of concern (Straits of Malacca), on a specific threat (piracy at sea), with agreement on a specific scope of action (security coordination).
America’s ‘Rule of Law’
As the United States has sought to confirm the legitimacy of its actions within the United Nations regarding Gulf War, Afghanistan, and Iraq conflicts with varied success, this has created questions about the international image that the United States projects. Although, as pointed out in Chapter Two, states will cooperate if they have national interests in common to other actors, and this can form the basis for regime formation, ultimately the power to make decisions about security cooperation remains with the state. Perplexingly, even when the United States has used the imprimatur of the United Nations to project power when invading Afghanistan and Iraq, it has avoided encroaching on the sovereignty of other states with which it sought a security coalition.
Nevertheless, for states to feel confident that the international system provides them some measure of protection, even from interference by the interests and power of American hegemony, is the concept of territorial sovereignty of the state. Within the Caribbean during the Cold War period, sovereignty was under-prioritised, since the United States was willing to invade countries to varying degrees–from Cuba to Granada. In the post-Cold War era, the invasion of Iraq and Afghanistan undermined the confidence of states in Southeast Asia; evidence of this was that cooperation with the United States on its Regional Maritime Security Initiative (RMSI) faltered at a time when ‘war on terror’ was reinterpreted as a cultural and religious war, challenging the religious underpinnings of political support. As apparent de facto judge and jury of events taking place in the post-Cold War era, the behaviour of the United States in the Middle East after 9/11 implied that sovereignty, and rule of law were determined by national interest, power and hegemony rather than ubiquitous objectivity. Military excursions by the United States tested previous presumptions; in Southeast Asia the behaviour of the United States jeopardised its own position as a proponent of ‘rule of law’, in a way that had not been considered by Caribbean states during the 1990s.
Although the term, ‘sovereignty of states’ is arguably centred on centralised authority, within defined political borders and international recognition, the intent of sovereignty has significantly shaped the way that states have responded to non-traditional maritime security cooperation within the Caribbean and Southeast Asia. Protections afforded to states under international law, in the post-Cold War era have functioned to legally restrain the political influence of external states. Territorial sovereignty establishes state authority over territorial waters, and a legal recourse to dispute resolution, allowing states to choose with whom they cooperate to enforce security at sea.
Historically, during and prior to the Cold War, the territorial sovereignty of international actors globally (not all of whom were sovereign independent states) had been subsumed in wider security interests. Mistrust of external powers and their interests was reminiscent of colonialism; it was a force both malignant and benign. In 1931, Arnold Toynbee stated that Britain sought to deny colonial territories any sovereign rights, wresting the ‘mysterious political force called sovereignty out of the clutches of the local national states’ but all the while upholding sovereignty as a foundation of European nation-states - ‘denying with our lips what we are doing with our hands.’ In contrast to Toynbee’s early colonial antagonism toward the independence of states, contemporary sovereignty symbolises self-rule, recognition of no higher over-arching power, and a central governing authority. In the beginning of the twenty-first century, in the wake of the events of 11 September 2001 (9/11), the United States, when led by realists and in the absence of major competition, enjoyed almost unlimited power reminiscent of earlier colonial empire building. Problematic engagement and intervention strategies by the United States after 9/11 raised the question of its allocation of power and whether the concept of sovereignty of states was in jeopardy. This behaviour undermined sovereignty elsewhere, (as in Iraq), dismissing its relevance while jeopardising the position of the United States as an upholder of the concept of ‘rule of law’. Over the course of history, states have always been subject to external influences, although the United States has been powerful enough to avoid the exclusionism that they practised on others. Despite the actions of the United States, and perhaps the sentiments of former Secretary-General of the United Nations, Kofi Anan, contemporary sovereignty has come to enshrine the principle of non-intervention in the internal, political decision-making and judicial direction of states by other states or representatives. This reinforces post-Cold War era recognition of the state as an independent and autonomous executive of power, where its citizens are free to choose their own form of government. Cooperation between states advances development of trust over time, strengthening each state’s sovereignty. It has therefore been essential that a respect for sovereignty in the Caribbean and in Southeast Asia is evident in the way that such a powerful external actor as the United States conducts its own foreign policy affairs.
Prior to 9/11, the bilateral agreements between the United States and various Caribbean states supported a respect for territorial sovereignty and rule of law. Conventions, codes and treaties created within the United Nations (in particular, the UN Drugs Convention) formed the legal framework for making agreements to enforce the rule of law at sea. The long established relationship between power, sovereignty and law that was an integral aspect of a functioning international system of states was intact and perhaps strengthened when Cold War divisions dissolved. After 9/11, actor confidence that had been attributable to established, ubiquitous, internationally accepted principles was arguably shaky once the unilateral power of the United States was on display during the Administration of United States President George W. Bush.
Sovereignty needs the support of rule of law, a long established connect between the state and its independence. It was Grotius who first situated sovereignty as an aspect of law; Jeremy Bentham (1748-1842) who connected the interests of the state with the interests and welfare of other international actors; together establishing principles of morality and legitimacy in international relations. For 18th and 19th century mainstream German theorists, sovereignty was a basis for nationhood. For the realists in Washington DC in the 21st century, morality became a product of political struggle, not its basis. By applying expediency and power, recognisable rules were in a sense perverted, so that justice became simply a matter of moral perspective without any universal truth in the international politics of the Bush administration.
This behaviour threatened to undermine confidence within Southeast Asia, in a way that it had not in the Caribbean during the 1990s. Caribbean and Southeast Asian states sought to protect their sovereign independence but still sought different forms of maritime security cooperation. Sovereignty provided a legal means to shape the type of stability and peace sought by states in Southeast Asia. The likelihood of creating a security regime at sea was unlikely without regional stability and peace. Within a stable system, ‘sovereign’ states are recognised and have juridical independence, with territorial entities having the right to decide freely which agreements or treaties they will enter into, these actors do not therefore intervene in each other’s internal affairs. To enhance sovereignty, states can work together in multilateral negotiation with other actors who also seek mutual benefit; all actors agree to principles, rules and procedures for enhancing security cooperation, conceding a degree of absolute authority in exchange for enhanced capacity. Interventions in Cambodia, Haiti, Somalia and Iraq, as well as the introduction of the international tribunals and the International Criminal Court (ICC), paint sovereignty as a less certain form of protection against interference.
United Nations Redefinition of Sovereignty
The concept of sovereignty of the state did not suffer from the use of international law in the bilateral agreements between the United States and Caribbean states. This was confirmed when Caribbean states supported agreements based on a section of the UN Drugs Convention (1988), together with law of the sea (UNCLOS), as the basis for the bi-lateral, Caribbean Regional Maritime Agreements (CRMA) with the United States. The UN Drugs Convention is an international agreement to counter a common threat and facilitate law enforcement on land, sea and air. Transnational organised drug trafficking in narcotics that during the 1970s and 1980s, was a divisive but dynamic political regional issue. This threat is peripheral to the main thesis topic but due to subjugation by states to what Alex Klein refers to as an ‘expanding international control regime for illicit drugs’, the UN Drugs Convention did create a solid legal structure that articulated measure available for enforcing law at sea. States globally sought international agreement on ways to counter illicit drug trafficking and the Drugs Convention provided legitimacy through its wide acceptance. Within the Caribbean, at least, states participating in bilateral maritime law enforcement agreements with the United States indicated less inclination for multilateralism security based on the same anti-drugs regime, even though the existing bilateral agreements remained intact.
Caribbean states that did agree to participate indicated that cooperation was not going to impose on their sovereignty, despite arguments about the intent of the United Nations in the post-Cold War era. Despite its historiography, the concept of Sovereignty arguably presents an obstacle to the United Nations’ own goals of increasing its international influence. In 1999, United Nations Secretary-General Kofi Annan declared a redefinition of state sovereignty, in its most basic sense. Anan saw traditional concepts of sovereignty (particularly authority) as an obstacle to the goals and purpose of the United Nations, from where the bulk of international law originates. For some, this criticism of sovereignty led to a belief that the purpose of the United Nations is to ultimately becoming a world power. It also reaffirmed that sovereignty continued to be useful protective mechanism that allowed states to make their own decisions about security partners. Despite the heightened security focus after 9/11, and despite rejecting the United States’ RMSI initiative, Southeast Asia’s ‘straits states’, Indonesia, Malaysia and Singapore, still indicated a respect for the international law of the sea conventions ensconced within UNCLOS, even though they had not subscribed to RMSI’s proposed format or membership.
A Legal Basis for Cooperation
International law involves legal interactions between states that remain independent of a state’s own municipal laws. Although the United States own federal anti-drug laws have been the basis for the United States Coast Guard (USCG) and US State Department’s ‘war on drugs’ in the Caribbean, these laws did not apply within the territories of Caribbean States, except where agreement had been made through bilateral agreement. The judicial system of international law does not rely on state based instruments of law or governance, although the various mechanisms of international law derive from states who determine rules, principles, and processes of international law from reference to other sources and mechanisms. The Oxford English Dictionary defines international law as the interests in common between states, bound by a common rule of agreement or custom, and opposed to municipal law. International law in this definition is therefore an agreement to abide by rules that protect the rights of states. For example, UNCLOS codifies customary practise and legitimises the power of the state, including the right of self-defence, and is a creation of international consensus. International law facilitates development of relationships amongst states, all of whom possess equally autonomous authority. Human society is the foundation of international society in the form of a ‘coexistence of sovereign states’. Therefore, UNCLOS is a reflection of the global society; it is a means by which to manage human society upon the world’s oceans.
International conventions, codes and treaties that have the imprimatur of the United Nations comprise a legal basis for enforcing law on the high sea. Older notions of international society and more recent ideas about regime theory all address the same problematic question, ‘what is the relationship between law and norms on the one hand and power and interests on the other?’ Whilst lawyer Hugo Grotius argued that power does not necessarily endow legal possession, naval strategist Alfred Thayer Mahan argued that naval domination of the maritime domain projected state power and influence. Two centuries after Grotius took the position of ‘freedom of the seas’ (mare liberum) and ‘in time of war and peace’ (de jure belli ac pacis), that later would form principles for a uniform law of the sea, Mahan proposed that ‘seapower’ had historically been a significant determinant of national integrity. It served the dual national interests of protecting commerce and trade, whilst projecting United States power far beyond its territorial boundaries. Law and power are measured by examining the influence they have over the way that states behave. Into the 20th century, the concept of law of the sea has led to peaceful uses for the oceans, rather than simply maritime neutrality and naval warfare. Although its use has evolved over time, the concept of ‘common heritage of mankind’ (res communisomnium) which Grotius relied upon and that borrows from old Roman law, still guides modern international law of the sea today. Whereas Grotius referred to extent of legal jurisdiction, Mahan argued that states protect interests and determine outcomes through naval power. If law, power and sovereignty link to international norms, upon which international conventions are founded, the behaviour of the United States distorts the norms; as a powerful, influential actor, it can seek enforcement of international law for its own ends whilst avoiding the prospect that these norms may be enforced against it. Thomas H. Lee concurs that analysis of sovereignty from the perspective of the ‘supreme state’ (by which Lee refers to the United States), makes it difficult to justify the norm of sovereign equality.
Even the United Nations is not immune from questions about its role as an agency of United States power and influence. The response of Caribbean states and the United Nations to the war on drugs, and the response to piracy at sea by Southeast Asian states and the United Nations, both confirm that consensus if possible when non-traditional security issues form the subject of proposed security resolutions. The United Nations role situates it as an agency of international consensus; firstly, between a number of Caribbean states and America; and secondly, between the littoral states of Malacca and Singapore Straits in Southeast Asia. States sought cooperative security measures, because the United Nations represented international accord, it was an important transformer of values, affecting opinions. In both case studies, greater trust in the agency of the United Nations and international law than in the most powerful state was not an insignificant aspect for weak governments reliant on public support, or where respect for cultural norms was linked to political stability, as in Indonesia and Malaysia. In order to reinforce stability within states, and within the international system of states, the United Nations allowed a forum for dissent and cooperation of states; both significant aspects in the atmosphere of the post- 9/11 period. Therefore, the United Nations own member states reinforced its international acceptance as an agency of cooperation. This situated the United Nations as an agency of legitimization, lending an imprimatur to codes, conventions and treaty agreements that constituted the bulk of international law. As an agency of governments globally, linked to public attitudes, consensus within the United Nations on non-traditional, low security issues, such as international law enforcement, had greater support than the United States’ decisions to invade Middle Eastern states.
6.4 Balancing Security Interests and Needs at Sea
An American Interest
Although it is the most powerful state, and as such is able to apply pressures on actors to cooperate, the United States has sought the cooperation of states on non-traditional security issues, seeking to extend the reach of its law enforcement ability and its jurisdictional influence. It has achieved this by using its premier marine law enforcement authority, the United States Coast Guard (USCG), assisted by the United States Navy. Unlike a naval force, a policing authority such as the USCG is not heavily armed or equipped to threaten other states significantly; therefore, the presence of such an authority represents a low threat to other states whose territorial waters it might visit. Although, the United States placed more weight on non-traditional maritime security threats and regional security, it consistently sought to foster cooperation and use international law as a legal foundation for cooperative mechanisms for security at sea. Its own national interests sometimes led to exclusion by regional states from direct participation in regional security cooperation. This was the case in Southeast Asia; although the United States remained part of naval exercises, it was not invited to partnership in non-traditional maritime security, the MSSPs that aimed to improve security at sea. One consequence of changing attitude towards regional security independence is that states have been able to make their own decisions about security partners. Within the Caribbean, that many states signed into bilateral arrangements with the United States, including shiprider and cross-border law enforcement bilateral agreements, therefore meant that cooperation on a specific issue of security at sea became one of the norms of regional relationships.
A Focus on Stability through Cooperation
There were fundamental differences between the ways that states cooperated on similar security issues in the Caribbean and Southeast Asia however, and the presence and influence of the same powerful actor (United States) affected the expectations of states towards engagement commensurately. Within the Caribbean, a consequence of bilateral agreement-making by states was that they could seek to improve capacity with minimal compromise. By accepting cross-border activities by a sole partner, the United States, Caribbean states avoided having to make possibly unpalatable compromises to satisfy the interests of multiple regional actors. An emphasis on assistance through cooperation has generally aligned with the United States strategic security objectives within Southeast Asia, as it has within the Caribbean. Partly, there is an expectation that coast guard and naval capabilities meet the changing direction of national security policy, from the 1980s and 1990s ‘war on drugs’ to ‘war on terror’ after 9/11; and partly a realisation that as the only remaining super power, the United States needs partners with which it can interact and influence. If the current system of global trade is to be protected, partnerships in security form the basis of a stable international system. Securing the oceans and getting other states to cooperate in this endeavour had by the middle of the 21st century, become a cornerstone of the United States strategic posture. The first line of the 2005 United States Department of Homeland Security ‘National Strategy for Maritime Security’ declares that, ‘safety and economic security of the United States depends upon the secure use of the world’s oceans’. In a 2006 interview with Vice Admiral Patrick Walsh, (Commander, US Fleet Forces Central Command, Commander, US Fifth Fleet, and Combined Forces Maritime Component Commander) saw a group of states work toward a common goal of prosperity, against the common enemy of terrorism. Walsh considered that for his assigned task, a ‘coalition is absolutely critical to our success in the maritime environment … their diversity, experience, insight, their capacity … we could not have the kind of success we have had without that cooperation … a common goal against a common enemy’.
Nevertheless, if the United States could increase its influence in regions with major oil and energy shipping routes, it could not only ensure regional stability in a major supply route, but also gain strategic advantages over major military/economic competitors, such as China. Susan L. Gough argues that United States strategic policy has aimed to secure the best possible outcome for United States interests, using every means available. Strategic influence, from a United States perspective, has been the ‘deliberate conscious coordination or integration of all government informational activities designed to influence opinions, attitudes, and behaviour of external groups in ways [that] promote United States national objectives, combined with other elements of national power to achieve maximum psychological effect’. Aside from pursuing narcotics smugglers, prior to 9/11, the United States Navy paid little attention to non-traditional maritime threats such as piracy at sea, instead concentrating on traditional strategic military issues. Whereas the Caribbean is located close to the United States, and some Caribbean states see the benefit of having a powerful actor as a protector, states within Southeast Asia preferred to avoid cooperation with the United States despite the capacity it brings to the table. Southeast Asian states have shown less inclination to see the United States as protector, preferring to negotiate on trade and security between themselves.
In 2005, Acting Assistant Secretary for East Asian Pacific Affairs, Evans J.R. Revere, stated that it was important that the United States maintained alliances with key Southeast Asian regional states. Revere was referring to strategic alliances with Australia, Japan, South Korea, Thailand and the Philippines, so it was not all-inclusive. These alliances supported the claim that the United States sought to ‘maintain regional stability, stay forward-deployed, and plan and execute force deployment adjustments.’ A 2006 United States Congressional Research Service Report also noted that within East and Southeast Asia, developing regional security arrangements supported United States security interests by encouraging peaceful resolution of conflicts and corresponded with United States aims of ‘stability and the maintaining of alliance relationships in the region.’ While this suggested a need for the United States to engage regional states, the report nevertheless pointed to diminishing external threats to states within Southeast Asia, due to more cooperation and coordination of force elements, possibly leading to the states questioning the need to support a continuing United States presence.
However, at the same time, significant maritime security developments in nearby regions indicated a widening of the scope of USCG and law enforcement at sea duties of the United States Navy. Piracy at sea was increasing off the ‘Horn of Africa’ region between 2002 and 2007, and during this time, smuggling narcotics from the Caribbean to West Africa increased. By June 2007 the United States Government was indicating that policing the seas beyond its own national maritime borders would be included in its national interests, proclaiming a ‘Policy for the Repression of Piracy and Other Criminal Acts of Violence at Sea’. Released in June 2007, this memorandum specifically addressed the problem of piracy and violence at sea, despite not focussing on Southeast Asia or the Caribbean.
In a strategic shift of direction for the United States Navy, that affected regional cooperation, was outlined in the 2007 A Cooperative Strategy for 21st Century Seapower. The report emphasised trust and cooperation with other states, continuous consideration of the strategic interests of all actors, and promotion of mutual understanding and respect. In May 2007, United States Commander of Naval Forces in Japan, Rear Admiral James Kelly stated that China, as a growing military power, was visible outside its own waters trying to send the message that it would operate beyond its territories. With China’s critical need to source significant quantities of minerals and energy (coal, gas and oil) for industry, increasing cargo capacities, and the growing interest of the United States, suggest that China will not leave to chance the security of the Malacca and Singapore Straits.
Peripheral spending on security capacity building projects supported United States expansion of its influence into regions beyond its own immediate area, and assistance to states. One Southeast Asian example of funding policy was the construction of a joint training centre at Indonesian Marine Police Training Facility in Tanjung Priok, North Jakarta that began in April 2006, completed six months later at a cost of approximately US$700,000. Promoted as a means to enhance maritime security and thwart transnational crime, United States Ambassador Lynn Pascoe stated that, the classroom and auditorium of the facility would assist and enhance Indonesian Marine Police to enforce law in an ‘increasingly difficult and dangerous environment’. The two part act included; Section 1206 funds under the United States National Defense Authorisation Act, referred to as ‘global train and fit’ authority with US$800 million; and Section 1207 funds, referred to as ‘security and stabilisation assistance’ authority with US$200 million allocated to this use (2009 figures). Therefore, US Congress-approved, ‘1206 money’ was a means by which the United States has been able to augment capacity of regional states.
After 9/11, the shift in attitude from the United States toward security generally, blighted its own efforts to get states to cooperate on security at sea. It marked a new reluctance by some states to follow old security pathways. It was significant that in Southeast Asia, the three straits states retained management of the way that law enforcement at sea was coordinated. Excluding external actors from direct participation in Southeast Asia (although, neighbouring state Thailand was encouraged to participate) in effect constituted regional norms of security behaviour. The littoral states of Malaysia, Indonesia and Singapore sought to make their own regional arrangements after 9/11, and only after the invasion of states in the Middle East. This was consistent with regional principles ensconced within ASEAN that limited direct participation by external actors, including the United States, but also came at a propitious time. Various security arrangements between maritime states in Southeast Asia in the 21st century, including a regional anti-piracy at sea intelligence sharing initiative, ReCAAP, indicated a degree of interest in cooperative maritime law enforcement arrangements but conveyed an intent of self-determination. International law could protect the integrity of territorial sovereignty but for states to cooperate in multilateral law enforcement at sea, attitudes would need to change, requiring a further period in which confidence might improve. In contrast, Caribbean states after 9/11 retained the benefits of the existing bilateral relationships with the United States because there was no guaranteed advantage in changing them. Therefore, in both regions, states retained the choice of security cooperation (or not) but were reluctant to act hastily in adopting wider participation than necessary, or making changes that would interfere with their sovereignty. Caribbean states were protected by legal agreements and Southeast Asian states by their prerogative decision to limit law enforcement at sea cooperation.
However, despite the benefits for Caribbean states of cooperating with the United States to enforce law at sea, there was no apparent desire for multilateralism. Caribbean states have had to be complicit with the interests and demands of the United States, and allow it to enter their territories but improving regional security at sea did not encourage Caribbean states to engage in the proposed multilateral, Caribbean Regional Maritime Agreement (CRMA). States in both regions have not avoided security cooperation altogether but have retained the power to adjust the terms under which cooperation takes place.
Rejecting the United States as a participant in Southeast Asia could have led to repercussions for the littoral states, despite continuation of bilateral and trilateral naval exercises between actors. Military exercises and exchanges, funding for anti-terrorism initiatives and support for the regional coast guards endured the rejection between the United States and Southeast Asian states. Another positive outcome was that burden sharing spread the cost of policing the Malacca and Singapore Straits and initially improved security at sea in the southern South China Sea. Cooperation clarified action to be taken on sensitive issues such as rights of hot-pursuit, powers of interdiction and arrest, over-flights by patrol aircraft, and designated patrol regions. As in the Caribbean, law enforcement cooperation at sea has dispersed capacity, increasing available assets, personnel and information sharing across a broad cross-section of states. Southeast Asian actors trusted that coordinating security at sea with neighbouring states met agreed regional principles, responsibilities and commitments, and that self-regulated capacity building would not be mistaken for bellicose behaviour at a time when many states in the region sought to build military capacities. Poor support for the 2004, United States-led RMSI proposal had demonstrated a shift away from old alliances with major powers.
Why maritime security was improving in Southeast Asia after 2004 depended to some extent on the viewpoint of individual actors. According to Admiral Timothy Keating, commander of United States Pacific Command, despite poor security in the past, and that ‘1206’ funding had paid for equipment and training, it was significant that the states had been able to focus on a sensitive security problem (piracy at sea) and had achieved a better outcome through cooperation. Singapore’s Deputy Prime Minister and Minister for Defence, Teo Chee Hean, attributed improving maritime security cooperation to increased transparency, including greater inclusion of regional stakeholders, openness about individual actor’s capabilities and intentions, and more value put on ‘cooperation based on dialogue and the rule of international law’. Despite varying perspectives, states had demonstrated that they were capable of making security arrangements more or less independently, by cooperating with each other rather than relying on partnerships with external actors.
From the point of view of the United States, limited regional capacity had pointed to cooperation as a means by which states could increase security with minimal outlay. A key difference between Caribbean and Southeast Asia maritime law enforcement arrangements, aside from fear of weakening of sovereignty, or being seen to associate with politically dangerous and conflicting events such as the war on terrorism, has been the extent to which states have had the practical ability (capacity) to engage in agreements with other states. If less powerful states were to enforce law at sea, they would need to meet the practical demands, as well as its legal responsibilities.
Regional Needs and Limitations
In the Caribbean, halting the narcotics smuggling trade suited the interests of all actors, except the drug cartels. When the United States sought to fight narcotics smuggling in the Caribbean during the 1980s and 1990s, it was trying to resolve a domestic problem of illicit drug consumption and its connections with organised crime by blocking the supply lines that traffickers were using to get narcotics from South America to North America. Yet law enforcement at sea ideally necessitates using small to medium sized armed patrol vessels; not all states have this capability. The United States capacity to patrol far beyond its own borders and deploy substantial maritime law enforcement assets far beyond its own jurisdictions allowed practical cooperation with smaller, less powerful states with no inference of strategic domination. American naval strategist, Alfred Thayer Mahan argued that ‘sea-lines of communication’ provided global commercial trade and military transit routes, and that these were crucial connections – the United States has always had a considerable stake in sea-lines that supported commerce and military needs.
States in both the Caribbean and in Southeast Asia have practiced non-traditional maritime security by enforcing law at sea. To satisfy the needs of all participating states, such behaviour has had to align with obligations of international law and national security interests. Maritime security cooperation therefore required a legal basis and a consensus from states within the region in question. Many states in both the Caribbean and Southeast Asian regions have shown a preference to act in accordance with what they see as their own national interests. Within Southeast Asia, the Malacca Straits Security Initiative (MSSI) and MSSPs involved arrangements made initially between Indonesia, Malaysia and Singapore, but still required that standard operating procedures accorded with UNCLOS. Caribbean states engaged in bilateral agreements that were based on sections of the United Nations Drug Convention and accorded with United States ‘war on drugs’ policies whereas the MSSPs had no United Nations basis but still allowed for a regional agreement, established through Association of Southeast Asian Nations (ASEAN) principles of non-interference in the political affairs of neighbouring regional states. Nevertheless, information through ReCAAP Information Sharing Centre did originate through the IMO, a division of the United Nations, therefore formalising the information exchange at the international level. Legal frameworks that United Nations conventions, codes and treaties provide, and that comprise the bulk of international maritime law, form the basis for enforcement cooperation between states at some level in both regions.
Comparing maritime law enforcement arrangements within Southeast Asia with comparable arrangements in the Caribbean verified that in neither region have states subjugated territorial sovereignty in order to achieve non-traditional maritime security goals. Instead, states have participated in agreement making that allowed them to shape the arrangements to best fit national objectives, through minimal engagement (coordination) with other internal or external actors.
Conventions of international law within UNCLOS support the right of unhindered passage of maritime traffic within international sea-routes such as Southeast Asia’s Malacca and Singapore straits, but there was also an obligation on littoral states to police them. The question prior to 2004 (when the Malacca Straits Sea Patrols [MSSPs] were created) was ‘if’ the states had the capacity; the political will to police this sea route; and if they did how to manage such operations, and how the littoral states could jointly achieve this, in lieu of allowing external states to participate. British naval strategist, Julian Corbett argued that using many small craft at sea was an advantage in a conflict. In practice, law enforcement patrols by small craft are well suited to Corbett’s ideas about strategic dispersal, as they represent assets that, due to low relative capital and operational costs (compared to major vessels, such as warships), are usually available in greater numbers. Patrols in coastal regions are a natural adjunct role for marine authorities since local, municipal police may fail to provide an effective investigative role in coastal villages where corruption is more likely. The peculiarity of territorial sea limitations as outlined in UNCLOS go part way to explaining differences in attitudes to, and fears about the integrity of territorial sovereignty of littoral states in Southeast Asia. However, unlike the bilateral law enforcement arrangements in the Caribbean, the littoral states along the Malacca and Singapore Straits were restricted by capacity. The practical realities of capacity limitations, given the exclusion of direct partnership with the United States, impacted on the actual contribution that littoral states could make.
Strategic dispersal of patrols and platforms (patrol vessels) that Corbett refers to could have been an effective approach in theory but in law enforcement at sea in the Malacca and Singapore straits, it relied on a measure of holistic support of police, military and coast guard. Intelligence exchanges between authorities are problematic because it is an inherently protected resource. Poorly paid police, indifferent to, and perhaps implicated in local, or organised crime such as piracy and narcotics smuggling retard an effective holistic, cooperative security strategy unless there is a determined government-led reform. This was often the accusation within some sections of the Sumatran Coastline of Indonesia. For example, an Indonesian naval base at Tanjungpinang on Bintan Island, close to Singapore, improved regional patrolling abilities but only a continuing willingness by Indonesia’s government to make law enforcement at sea a priority to defeat piracy at sea could make the system work. Existing Indonesian patrols by marine police traditionally targeted ships and barges within Indonesian territorial waters, including nearby Lingga Archipelago. Indonesia’s naval forces and other marine authorities represent an extension of state power, control, and jurisdiction. Indonesia’s military and police organizations have had to build an interrelationship between the military and police in order to establish the confidence of neighbouring states that its political intent matches the willingness of its various marine authorities.
6.5 Tying Cooperation to Convention
In the conclusion to his treatise on naval deterrence and anti-piracy at sea, United States Navy advocate Michael Bahar argues that the demise of the Soviet Union has meant that ‘asymmetric and law-enforcement type threats have dominated the strategic landscape’. This infers that as the most significant post-Cold War actor, only the United States has had a capacity to provide law enforcement world’s oceans. Non-traditional maritime security initiatives for port protection and high seas policing prior to the end of the Cold War in 1991 have had the supported of the United States. A notable international convention is the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) 1988. Following 9/11, the United States initiated the International Ship and Port Facility Security Code (ISPS Code), the Proliferation Security Initiative (PSI) and the resulting Statement of Interdiction Principles (SIP). Each allowed a range of practical measures to enforce law at sea, and sought to address the prevalence of crime committed at sea. In a sense, they have become the civil equivalent ‘rules of engagement’ for marine authorities.
‘Rules of Engagement’
In terms of cooperation between states at sea, international conventions, codes and treaties that are thrashed out in the United Nations have formed the scope of operations in both Caribbean and Southeast Asian cases. ‘Rules of engagement’ is terminology often ascribed to military operations; compliance to predetermined sets of rules outline the scope of actions to be taken. Such limitations and accepted behaviour that each state agreed to abide by formed a legal basis for security cooperation and coordination at sea. Within the Caribbean, the United States established maritime law enforcement agreements during the 1990s.These rules of engagement specifically referred to anti-drug smuggling operations at sea. The United Nations Drugs Convention 1988 formed a legal framework that was guided and reinforced by the widely accepted principles ensconced within UNCLOS. By including individual state authorities already party to both agreements (the United States abides by but is reluctant to put UNCLOS into force), the maritime agreements facilitated permission seeking when one state sought to enter the territories of another state with intent to carry on law enforcement operations, including the interdiction of suspect vessels. Sovereignty remained with the individual states, and the decision to allow entry of external maritime law enforcers remained a prerogative of the state. Meeting a wide range of expectations, the agreements carried the obligations, expectations as well as inherent shortcomings of international law.
Within both the Caribbean and Southeast Asia, the road to cooperation, consultation between government level authorities internal and external to the region relied on international law and regional principles. To adopt international agreement meant turning to international law. In many ways, international ‘law’ is more complex than municipal law of the state, lacking its surety of obligation and enforcement. H.L.A. Hart questions whether international law is really ‘law’ at all, since there is no obligation for states to comply; relatively weak international courts and a lack of pre-determined means of punishment distinguish ‘secondary’ (international) law from ‘primary’ (municipal) law anyway. Therefore, providing security against crime on the high seas has involved states operating beyond their own territories while relying on cooperation with other states in order to carry authority across territorial boundaries. In the case of the Caribbean states, this can involve the USCG operating in a law enforcement capacity within the territorial seas of other states – it has allowed permission to enter a territorial sea to be given quickly. In Southeast Asia, states coordinate security against crime at sea, extending the marine authority of a state as far as neighbouring state borders; communication and intelligence sharing rather than direct incursions of patrol craft are emphasised. Responsibility for security remains with individual states. Consequently, power and law become intermingled because any armed authority represents the power of a state. Any type of security cooperation between states requires a clear understanding about the expected behaviour of each actor, especially when crossing borders. Law of the sea has long been an ongoing legal argument about the rights of states, of sovereignty over resources, and protection of territorial rights, and rights of mariners. It is therefore a significant part of law enforcement cooperation at sea. Conventions, codes and treaties are the outcomes of these arguments and comprise the bulk of international law, forming the legal framework(s) for agreements between states.
Given the significance of international law in shaping the way that states cooperate, it is ironic that the United States has been reluctant to ratify UNCLOS but has relied on other United Nations conventions to support its engagement with less powerful states. Although active in the creation of and adhering to its conventions, successive United States administrations have failed to get consensus from Congress for ratification. When other states have agreed to abide by UNCLOS, it has been through choice rather than out of obligation. As international law, UNCLOS is a fundamental instrument of states with analogous security interests that extend beyond home territories and into the open seas; it forces states to revisit, contest, interpret and define legal regimes. However, even though states facing analogous security threats at sea are unlikely to be able to make any changes to international law that threatens territorial sovereignty, by refusing to sign onto UNCLOS, the United States demonstrated a de-facto rather than de-jure interest in international law. Consequently, the United States has sought to amend UNCLOS but hold off ratifying the convention whilst using international law to support its maritime security interests.
Following 9/11, the USCG visited Southeast Asia during 2004 to promote maritime law enforcement cooperation in Southeast Asia. Failure to get the same level of interest that the Caribbean agreements had received pointed to poor confidence of regional states, who were suspicious that RMSI was a veiled attempt by the United States to centre its ‘war on terror’ within the predominantly Muslim populated states of Southeast Asia. However, there were contradictions within the decision of Southeast Asian states to reject the Regional Maritime Security Initiative (RMSI); the context of the post-9/11 anti-terror campaign had antecedents in an earlier international maritime security convention, the SUA that had previously been accepted by states in Southeast Asia. The SUA developed through the International Maritime Organisation (IMO) and the International Maritime Bureau (IMB) during the last decade of the Cold War and laid a broad framework for more regionally focused initiatives, following a proposal that the United States put to the 14th Assembly of the IMO in November 1985. Adopted in 1988, the resulting United Nations Security Council Resolution (UNSCR) A.584 (14) had the support of Brunei, Myanmar, the Philippines, Singapore and Vietnam. UNSCR A.584 (14) notes ‘with great concern the danger to passengers and crews resulting from the increasing number of incidents involving piracy, armed robbery and other unlawful acts against or on board ships, including small craft, both at anchor and under way.’ Following a Maritime Safety Committee Circular (MSC/C) 443 (dated 1986), a proposal by Austria, Egypt and Italy sought to ‘provide for a comprehensive suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives.’ Therefore, SUA sought to prevent carriage of arms or explosives or nuclear, biological or chemical weapons aboard vessels, and addresses hostage taking, and the right to boarding a suspect vessel. Amendments in 2005 specifically refer to acts of maritime terrorism, and include the unauthorised transport of nuclear biological or chemical weapons aboard ships.
States in Southeast Asia had accepted SUA but some states did not accept RMSI; therefore, this implied that stymied regional confidence was a significant obstacle to any later consultation between the United States with regional states. It underscored the need for confidence as a basis for cooperation and the absence of obligation in the post-Cold War era for states to participate. According to Oscar Schachter, international law is a ‘system based on a set of rules and obligations’ that is binding only if participants accept the limitations and control on their behaviour. Because it derives from political and social forces, it is also dependent on the behaviour of other actors reacting to changes and needs. If the political impact of international rules is to have significance, Andrew Hurrell argues, international norms cannot be automatic and immediate reflections of self-interest but require both flexibility and legal framing. Particular rules must restrain norms of behaviour if this goes against self-interest. Partly because of the nature of international law, it is even questionable whether non-ratification of UNCLOS did undermine the United States position as an advocate of law and order in the case of RMSI.
Within both the Caribbean and Southeast Asia, states have been cautious when cooperating on maritime law enforcement security with United States, even though it offers partner states access to greater capacity and resources. When a powerful actor such as the United States appears to influence the agreement-making process, security cooperation raises questions about the challenge it poses to the integrity of territorial sovereignty of states with which it is negotiating. On the other side of the coin, the risk of cooperation for the United States has been that a disproportionate amount of investment may see only minimal benefits. Therefore, at its most basic level, the trade-off for everyone is increased security capacity and information sharing for smaller states and better facilitated cross-border access for United States law enforcement authorities, further reinforcing its regional legitimacy. The degree of coordination of assets and information exchanges varies for each actor, particularly in bilateral arrangements, but protection of sovereignty overrides any benefits, especially for smaller states.
The Facility of International Conventions
The United Nations conventions have provided the United States with legal frameworks for regional agreement-making facilitating counter drug smuggling operations in the Caribbean, despite these conventions having no regional focus. By late 2009, the required minimum of five states had yet to sign onto this new agreement and bring it into force, indicating a reluctance of states to commit to agreements that do not especially favour their interests. This represents a departure from Cold War era, when a sense of political choice was acquiesced to the bi-polar security structure but also that, although the United Nations Charter promotes limitation on the use of force between states, and offers options for redress if all other means fail, cooperation between Caribbean and Southeast Asian states has been tempered with caution. It is clear that practical maritime law enforcement coordination has required that states avoid infringing upon the territorial sovereignty or domestic jurisdiction of neighbouring states. In the post-Cold War era, the use of international legal conventions confirms that rule of law has been an important means to increase the confidence of states that cooperating on security issues has benefits that outweigh the potential drawbacks. When the United States sought to get states to cooperate to stop narcotics smuggling through the Caribbean Sea, the attitude of states to security and crime at sea, was of fundamental importance.
Conventions have lent legitimacy to more specific regional arrangements to enforce law at sea, similarly accommodating various interests and actors within the Caribbean and Southeast Asia. Despite differences in the way that states have gone about non-traditional maritime security cooperation, in both regions the United Nations has been a premier organisation for determining rules and norms of international law that reflect its own position of hegemony and power but incorporated the interests of states. Discussion on the success or otherwise of cooperation between states, situates international law as a contested concept. Certainly, cooperation to enforce law at sea required that states reached a degree of confidence in order to avoid or overcome Hobbesian-like pessimism. Legal machinery must function in the interests of all participants. Law enforcement arrangements have had to comprise an underlying coherent, formal and consensus-built legal framework, supporting region-specific, regionally built mechanisms. This has led to dissimilar decisions in each region about the need for cooperation or what form cooperation should take and with whom partnerships should be formed.
The behaviour of the United States, as a proponent of rule of law, and the United Nations, as an instrument of international law, encouraged cooperation on non-traditional maritime security issues. It is clear that the United States supported international conventions that serve its national interests but its interrelationship with the conventions codes and treaties of international law by abiding by customary maritime law belies official reluctance to fully accept its formalisation by bringing UNCLOS into force. Playing an intermediary role, the United States sought to engage states in both the Caribbean Sea and Southeast Asia to improve security generally, and specifically to facilitate the enforcement of law at sea in border regions, where its own principle of adhering to rule of law have prevented an overt encroachment on the territorial sovereignty of states.
States within the Caribbean chose to cooperate with the United States because a common threat was present; states within Southeast Asia did not chose to cooperate because national interests of the United States tied the response to its own interests more than to the interests of regional states. From a structural realist perspective, states inhabiting the anarchy of the international system are the only legitimate institutions that can make determinations about whether or not to cooperate with other states. Security cooperation between international actors is possible, as the events reveal, occurring when the creation of collaborative mechanism was created. The cooperation mechanisms in both regions have value because the states chose to support them.
Whereas states within Southeast Asia and the Caribbean have an interest in cooperating amongst each other on non-traditional maritime security issues, the self-interest and power brought by the United States has significantly influenced their decision-making. The United States has hegemony because it possesses three attributes that meet the criteria. Firstly, it has the capability to enforce the rules it helps to produce; secondly, its government has shown a political will to do so; and thirdly, the United States is committed to an arrangement that is mutually beneficial to its self-interest and that of states with which it partners. However, the benefits provided by the United States have weighed against the nature of its interests. The risk that the United States would affect the ability of smaller states to make independent decisions led to Southeast Asian states (Singapore, Malaysia and Indonesia) choosing not to include the United States directly in the Malacca and Singapore Straits Patrols. Therefore a single dominant state, such as the United States, that is able to create and enforce rules amongst the most important actors in regional systems may be the most influential actor regarding issues such as security, but the right of states to make their own security decisions limits such influence. This suggests that the position held by the United States, as the common denominator in Caribbean and Southeast Asian decision-making, is actually due to its capacity to bring stability through leadership. States will cooperate under the leadership of a powerful actor, illustrated by the United State role of initiating bilateral agreements with Caribbean States. However, while states may seek relative gains (in relation to other states) in a zero-sum game that makes cooperation difficult; states also seek alliances to avoid the natural anarchy of the international system, or the self-interest of powerful states, as in Southeast Asia. There, actors took measures in their own self-interest but avoided increasing power relative to other actors in the system, risking initiating an ‘arms race’ as each state also began build capacity.
To an extent, non-traditional maritime security issues, and getting states to support actions to address them, replaced previous norms of Cold War era strategic thinking for the United States. The stated purpose of operations conducted by the United States included interdiction of drugs smugglers and preventing terrorism through maritime security initiatives such as Proliferation Security Initiative and the International Ship and Port Facility Security Code in the wake of the 9/11 terrorist attacks. United States engagement in the Caribbean led to increasing reliance on the USCG as a diplomatic initiator role, liaising with states beyond the immediate geographic interest of the United States using an effective cooperation strategy forged in the bilateral law enforcement at sea arrangements with Caribbean States.
Regional maritime law enforcement became a national security issue because it annexed a United States successful diplomatic venture with a renewed strategic security interest after 11 September 2001. Rule of law, questions about the legal rights, limitations and the integrity under international law of the territorial sovereignty of the state posed questions about whether realist, balance of power politics in the post-Cold War era had been replaced by refocusing on regional maritime security. By seeking to engage with states at a regional level, the United States sought to take a maritime security management role displacing the implied ‘us or them’ perspective of bipolar power politics, and to regain the initiative of creating rule of law beyond its own immediate areas of jurisdiction. Abiding by its stated principles of being a proponent of the rule of law in oceans governance, the United States gave financial support, practical guidance and sought to increase capacity of states, thereby enhancing significantly the provision of law enforcement at sea, and the level of cooperation required in achieving this outcome. Nevertheless, rejection of the Regional Maritime Security Initiative (RMSI) in Southeast Asia, and the Caribbean Regional Maritime Agreement, signalled that regional states retained a capacity to make decisions about security according to their own national interests, perceptions and priorities.
At the same time that the United States sought to engage regionally with states in Southeast Asia, its external activities conflicted with Indonesian and Malaysian interests. Narcotics smuggling and violence ashore were interrelated, whereas in Southeast Asia, the victims of violence were the crews of ships, illustrating a disconnection between the reality of the crime and the political function of the state to protect seafarers in territorial waters. Maritime criminal activities and politics connected in the Caribbean Sea to corruption and violence in ways that differed to Southeast Asia’s religious relationships. Malaysia and Indonesia’s Islamic-populated states were sensitive to the implications of the United States war on terror, or fighting insurgencies closely associated with Islam. Actions in Iraq and Afghanistan connected religious Islam with violence so that any collaboration with United States maritime security operations in Southeast Asia, especially operations within the ‘war on terror’ policy, threatened social and political cohesion. In the Caribbean Sea, on the other hand, there were no similar conflicts with United States policy issues (although there had been during the Cold War) that might cause states to lose the support of their citizens. Quite the opposite, disrupting the flow of narcotics through Caribbean coastal microstates had the potential to reduce crime and violence on shore that could advantage government support. Each region experienced violence as an outcome in varying ways, so that government authorities prioritised addressing divergent threats to the state in a different way. Nevertheless, the presence of violence, albeit in different forms, required states to react with an armed response that could also raise the level of potential threat that each states present to one another as they built capacity. Bilateral and multilateral mechanisms in the Caribbean and Southeast Asia prevented misunderstandings, and acted to build confidence between actors.
Types of threat to the state have helped shape attitudes regarding the strengths, weaknesses and threats to the integrity of territorial sovereignty of states. The norms of accepted behaviour within, and external to nation states do not condone violence by individuals against assets, persons or the state itself. Narcotics smuggling in the Caribbean increased violence ashore, affecting social stability, leading to black markets and further violence, thereby threatening the authority of the state; the basis of sovereignty. Piracy at sea directed violence at crews of ships owned and operated by regional and external actors, leading external actors to conclude that, prior to 2004 states in Southeast Asia were unable to provide adequate security in maritime areas for which they had responsibility. Improving the capacity of states to manage security at sea was a specific requirement in both regions. Cooperation in the form of coordinated, maritime law enforcement operations and improved information sharing provided a specific way of developing a response to the specific threat that piracy at sea presented. Advancement beyond limited participatory arrangements, to wider inclusion of states and external actors was similar in both regions, although the scope for further options in this direction, such as wider participation in a Caribbean Regional Maritime Agreement and Malacca Straits Security Patrols has yet to be achieved.
Security cooperation in both regions is determined by the interests and priorities of coastal and external states, and accords with Robert Jervis’ description of a regime, where ‘principles, rules and norms … permit nations to be restrained in their behaviour [if they believe] that others will reciprocate’. The facility of multiple-bilateral agreements, coordination of assets and shared information accommodate various national interests and priorities. Coordination allowed dissimilarities of national interests and priorities to become inclusive to what the United States Coast Guard (USCG) defines as a regime: ‘the system of rules’ that shapes acceptable activity by participants. Statutes, regulations, and international agreements, conventions, and standards all establish a maritime ‘rule set’. Codes and conventions of common origin, as created in the United Nations and IMO are outcomes of international consensus and review, the ‘rule sets’ governing cooperative security behaviour of actors.
Where United Nations Convention on the Law of the Sea 1982 (UNCLOS) laid out fundamental maritime practice and customary law (explicit illegality of piracy at sea, violence and terrorism on the high seas, and actions that can be taken to counter this behaviour), the UN Drugs Convention provides a basis in international law for countering narcotics smuggling through localised ‘rule sets’. Codifying norms and actor expectations within a legal framework of international convention, maritime law enforcers adapted transferable norms and actor expectations to specific regional contexts, rather than simply meeting the interests of powerful states. Codified norms grounded security cooperation between states to sets of rules-based behaviour. What the data from both case studies in this thesis has shown is that cooperation is possible if proposed agreements have an underlying coherent, formal and consensus-built legal framework supporting region-specific and regionally built mechanisms. What UNCLOS offers by way of guidance to Southeast Asian littoral states seeking to address piracy at sea against ships, the UN Drugs Convention takes further by providing the basis for a legal framework from which state cooperation mechanisms have been constructed. Law enforcement at sea in border regions has depended on the willingness of state interactions to overcome perceptions that entanglements undermine national security objectives.
It is clear from both regional case studies that maritime security cooperation by dissimilar means resulted in effective but contrasting outcomes in the Caribbean and Southeast Asia. At a glance, both regions have characteristics that make them suitable maritime regions from which to draw conclusions about the changing nature of maritime security but geographically, both are archipelagos containing a great diversity of small and medium sized states with various economic and strategic relations, and territorial concerns. However, significant differences are apparent in the way that states cooperated to improve security at sea. In both cases, the United States was present as an actor of significant influence, seeking to initiate a response to an issue of its own national security interest. In each region, the effect of the United States involvement was different but nevertheless its actions instigated actions taken by the regional states. In the Caribbean, states small and large had a common security concern in narcotics smuggling. In Southeast Asia, the attitude to piracy at sea varied and it was not until the projection of the war on terror as an imperative by the United States that piracy at sea became a vehicle for cooperation. Therefore, cooperation was conditional upon actor’s seeking to overcome a common threat to their national interests. Certain Caribbean actors had agreed that their self-interests coincided with community interests; narcotics smugglers threatened state power, by causing corruption, crime and violence. The self-interests of the United States aligned with the security interests of many actors in the Caribbean. Reference to the Drugs Convention 1988, confirmed corresponding national and international security norms as a foundation for agreement making.
Since the end of the Cold War, through the 1990s and into the first decade of the 21st Century the United States has offered practical maritime law enforcement support to both Caribbean and Southeast Asian states through capacity building. The provision of an increased patrolling presence of United States Coast Guard (USCG) vessels and aircraft for surveillance was something sorely needed by states in both the Caribbean and Southeast Asian regions, who may have had limited resources to provide security within their own territorial seas or maritime border zones. Although Caribbean states took up the offer and signed one-on-one, bilateral agreements with the United States, an offer and rejection of similar support in Southeast Asia highlighted the dangers of misunderstandings through lack of prior consultation.
Consequently, due to some reluctance to accept the United States as maritime law enforcement partner, some Southeast Asian states indicated a shift in attitude towards great power partnerships. The nature of maritime security had changed. Questions about the direction of United States interests challenged its motives excluded it from partnership. While the three states with the most interest in the Malacca and Singapore Straits avoided a partnership with the United States, rejection of RMSI prompted other forms of cooperation, such as Eyes-in the Skies, and Malacca Straits Security Patrols (MSSPs). Therefore, the national interests of specific regional states (Indonesia, Malaysia and Singapore) aligned on a specific area (Straits of Malacca) on a specific threat (piracy at sea) with agreement on a specific scope of action (security coordination).
Although the influence of the United States has clearly been a common denominator in agreement-making in both cases, despite initial failure as accepted security partner in Southeast Asia, the success of American engagements is its focus on maritime law enforcement. Despite the apparent self-interest of states, supporting neo-realist perspectives that states will seek relative gains (as opposed to neo-liberalists who seek absolute gains), regional groups of actors have shown a willingness to cooperate on security issues when formal arrangements have the imprimatur of United Nations conventions. Bilateral maritime law enforcement agreements between the USCG and Caribbean maritime states, based on legal frameworks provided by the United Nations Drugs Convention 1988 meant Caribbean states could participate in bilateral maritime law enforcement agreements with the United States because these arrangements aligned with their national interests. Southeast Asian states preferred to take responsibility and retain control of the way that law enforcement at sea is coordinated but their interests still aligned with the intent of the United States, even if they did not agree with its means.
Determining who could participate, and who would manage this cooperation was the sticking point for the United States. In the Caribbean, the United States initiated and managed the development of bilateral maritime law enforcement agreements; in Southeast Asia, the three straits states managed the way that they would coordinate security at sea. Excluding external actors from direct participation in Southeast Asia, neighbouring state Thailand was encouraged to participate. Caribbean states could participate in the bilateral agreements but the issue of narcotics smuggling did not encourage them to be involved in widening these agreements under the proposed Caribbean Regional Maritime Agreement. States in both regions have not avoided security cooperation altogether but could have power over the terms of that cooperation. Although bi-lateral collaboration, seen in the multiple bilateral agreements favoured by Caribbean states, generally favoured the stronger partner, there has been reluctance by states to adopt the multilateral CRMA, suggesting capacity building prioritisation over compromising territorial sovereignty through negotiating with neighbouring Caribbean states.
In effect, what constituted norms of security behaviour between maritime states, could thereafter be determined at regional level. In the case of Southeast Asia, maritime states sought to make their own regional arrangements after the 9/11 terrorist attack. This was consistent with regional principles that limited direct participation by external actors, including the United States. Various security arrangements between maritime states in Southeast Asia in the post-Cold War era, including a regional anti-piracy at sea intelligence sharing initiative, ReCAAP, indicated some degree of interest there in cooperative maritime law enforcement arrangements but while the various arrangements conveyed a degree of cooperation, wider participation still presented a dilemma. International law could protect the integrity of territorial sovereignty but for states to cooperate in multilateral maritime security, attitudes would need to change, requiring a further period in which confidence might improve. Caribbean states retained the benefits of the existing relationships, whereas there was no guaranteed advantage in changing them. Therefore the states retained the choice of wider cooperation (or not) but were reluctant to act hastily to do so.
Cooperation to facilitate law enforcement at sea has not come without cost; Caribbean states have had to be complicit with the interests and demands of the United States, and allow it to enter their territories. Southeast Asian actors have had to trust that participating states would comply with agreed principles, responsibilities and commitments, and that self-regulated capacity building would not be mistaken for bellicose behaviour at a time when many states are renewing military capacities. Rejecting the United States as a participant could have repercussions although on other levels although this has not happened. High-security level military exercises and exchanges, funding for anti-terrorism initiatives and support for the regional coast guards continue between the United States and Southeast Asian states. Burden sharing has spread the cost of policing territorial waters, seen in agreements on sensitive issues such as rights of hot-pursuit, powers of interdiction and arrest, over-flights by patrol aircraft, and designated patrol regions. In both regions, cooperation has dispersed capacity; assets, personnel and information sharing increase across a broad cross-section of states.
States in both regions have shown a preference to act in accordance with what they see as their own national interests. Legal frameworks that United Nations conventions, codes and treaties provide, and that comprise the bulk of international maritime law, form the basis for enforcement cooperation between states at some level in both regions. Comparing maritime law enforcement arrangements within Southeast Asia with comparable arrangements in the Caribbean verified that states have not subjugated territorial sovereignty in order to achieve maritime security goals in either region. Instead, states have participated in agreement making that allowed them to shape the arrangements to best fit national objectives, through minimal engagement (coordination) with other internal or external actors. Within Southeast Asia, the MSSI and MSSPs involved arrangements made initially between Indonesia, Malaysia and Singapore, but still required that standard operating procedures accorded with UNCLOS. On the other hand, Caribbean states engaged in bilateral agreements that were based on sections of the United Nations Drug Convention and accorded with United States ‘war on drugs’ policies, whereas the MSSPs had no United Nations basis but still allowed for a regional agreement, established through ASEAN, of non-interference in the political affairs of neighbouring regional states. Nevertheless, information through ReCAAP Information Sharing Centre did originate through the IMO, a division of the United Nations, therefore formalising the information exchange at the international level.
In the Caribbean, many states signed into bilateral arrangements with the United States, including shiprider and cross-border law enforcement bilateral agreements. Therefore, engagement and cooperation of states on a specific security issue became one of the norms of actors’ relationships. There were fundamental differences between the ways that states cooperated on similar security issues in each region, and the presence and influence of the same powerful actor affected the expectations of states towards engagement. Within the Caribbean, a consequence of bilateral agreement making by states was that they could seek to improve capacity with minimal compromise. By accepting that allowing cross-border activities by the United States as sole partner aligned with national interests, Caribbean states avoided having to make possibly unpalatable compromises to satisfy the interests of multiple regional actors. On the other hand, Singapore, Malaysia and Indonesia rejected overt external gestures that might preside over decision-making, or how security cooperation would function. The United States was exerting influence within both regions but as a leading proponent of the rule of law, and without the restraints that previous Cold War bi-polarised strategic prioritisation had imposed, was unlikely to disregard the decisions of Southeast Asian actors.
 C.R. Mitchell, The Structure of International Conflict, NY, St. Martin’s Press, 1981, ch.1, 4, in ‘Partnership for Peace in Asia: ASEAN, the ARF, and the United Nations’, Mely Caballero-Anthony; Contemporary Southeast Asia, vol. 24, no. 3, 2002, pp. 528-548.
 Brian Fort, ‘Transnational Threats and the Maritime Domain’, in Derek Johnson and Mark Valencia (eds) Piracy in Southeast Asia: Status, Issues and Responses, ISEAS Publications, Singapore, 2005, pp. 23-36.
 For an overview of the US statutory language defining terrorism: Elizabeth Martina, ‘‘Terrorism’ and Related Terms in Statute and Regulation: Selected Language’, Congressional Research Service, Report for Congress, CRS Report RS21021, 5 December 2006.
 US Department of Defense, DoD Dictionary of Military and Associated Terms, Joint Publication 1-02, 8 November 2010.
 US Department of Justice, Terrorism in the United States, Federal Bureau of Investigation, 1999, in Dana A. Shea and Frank Gottron, ‘Small-scale Terrorist Attacks Using Chemical and Biological Agents: an Assessment Framework and Preliminary Comparisons’, Congressional Research Service, CRS Report for Congress, 20 May 2004, pp. 8-9.
 Alexander Moseley, ‘Political Philosophy’, Internet Encyclopedia of Philosophy, University of Tennessee, Martin, TN, 2006.
 One such alliance within Southeast Asia is the Five Power Defence Arrangements (FPDA) between the United Kingdom, Australia, New Zealand, Malaysia and Singapore.
 Martin Griffiths, and Terry O’Callaghan, International Relations: The Key Concepts, Routledge, 2002, p. 272.
 Duncan Snidal and Kenneth W. Abbott, ‘Pathways To International Cooperation’, in Eyal Benvenisti and Moshe Hirsch, (eds), The Impact of International Law on International Cooperation: Theoretical Perspectives, Cambridge University Press, 2004, pp. 51-52.
 Grotius, The Freedom of the Seas. pp. 30a-32a.
 Grotius, p. 22a.
 W.E Butler, ‘Grotius and the Law of the Sea’, in Hedley Bull, Benedict Kingsbury and Adam Roberts, Hugo Grotius and International Relations, Clarendon Press, ch.6, 1992, p. 209.
 res communisomnium has been adapted from old Roman law, and applied to Law of the Sea as the concept that oceans have a common heritage for humankind that should be regulated and garnered by all nations, whereas in res extra commercium, the oceans are regarded as a common heritage governed by an International Organization such as the UN.
 A letter from the Duke of Normandy to the King of Prussia’s Secretary of the London Embassy in 1753 proclaimed that protection under law of cargo-carrying vessels on the high seas would not extend to ships that carried goods that would support a belligerent’s war efforts. Neutrality was, and has remained, conditional on the type and destination of a vessel’s cargo, especially in times of conflict but also in times of uncertainty.–––Daniel Moran, ‘The International Law of the Sea in a Globalized World’, in Globalization and Maritime Power, Sam J. Tangredi, (ed.), Institute for National Strategic Studies, National Defense University, Washington DC, ch. 12, 2002.
 Daniel Moran, ‘The International Law of the Sea in a Globalized World’, in Globalization and Maritime Power, Sam J. Tangredi, (ed.) Institute for National Strategic Studies, National Defense University, Washington DC, ch. 12, 2002, p. 221.
 UN, ‘Preamble’, UNCLOS, 1982.
 ‘Co-operation on a global or regional basis’, Section 2, Article 197, UNCLOS 1982.
 ‘Limitations and Exceptions to Applicability of Section 2’, Section 3, Article 298, UNCLOS 1982.
 John F. Murphy, The United States and the Rule of Law in International Affairs, Cambridge University Press, UK, 2004, p. 4, pp.240-245.
 Paul Mower, (review of) Nicole Deller, ArjunMakhijani, and John Burroughs, (eds), Rule of Power or Rule of Law?: An Assessment of US Policies and Actions Regarding Security-Related Treaties, The Apex Press, New York, 2003, in Journal of Conflict and Security Law, vol. 12, iss. 2, 2007, pp. 334-338.
 Customary law is law in accordance with customary practice, and defined by George. A. Finch, as the ‘habits, sentiments and interests of mankind’, The Sources of Modern International Law, William S. Hein, 2000, p. 44.
 UN, ‘Convention on the High Seas’, 29 April 1958, entered into force 30 Sept 1962, United Nations Treaty Series, Geneva, vol.450, 2005, p.11, p.82.
 ‘Hot pursuit’ is also an issue on land; soldiers pursuing an enemy across political borders are limited by rules of engagement that may not allow hot pursuit to avoid escalating minor skirmishes, unless an agreement exists between states allowing the practice under specified conditions.
 UN, ‘Right of Hot Pursuit’ Part VI, Article 111, UNCLOS, 1982.
 1994 was also the first year of the Clinton Administration.
 US Senate Report, Convention on the Law of the Sea, Committee on Foreign Relations, Executive Report 110-9, 110th Congress, 1st Session, 19 December, 2007, p. 3.
 Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 7 November 2008, UN Oceans and Law of the Sea: Division for Ocean Affairs and the Law of the Sea, 2008.
 US Senate Report, Convention on the Law of the Sea, pp. 2-4.
 Budislav Vukas, The Law of the Sea: Selected Writings, Martinus Nijhoff, Boston, 2004, pp. 4-5.
 One international nautical mile =1.852kilometres exactly, or 1.150779 land miles, Oxford English Reference Dictionary, Oxford University Press, NY, 1995.
 ‘Singapore Claims Waters around Pedra Branca’, New Straits Times, 23 July 2008.
 ‘Capacity building’ refers to behaviour that increases the capabilities of a state, in this instance, to conduct the practical aspects of law enforcement at sea. This occurs through purchase of assets or gifting of assets such as ships, maritime patrol aircraft and/or infrastructures that support maritime law enforcement, information-sharing and other related support facilities.
 The ‘territorial sea’ is an extension of the territory of a coastal state, and extends to 12 nautical miles perpendicular to the coastline, measured from the low-tide mark of the coastline (see Chapter Three); One international nautical mile =1.852 kilometres exactly (that = 1.150779 land miles)––– Oxford English Reference Dictionary.
 Andrew Moravcsik, ‘Negotiating the Single European Act’, in Robert O. Keohane and Stanley Hoffman (eds) The New European Community, Westview Press, Boulder, 1991; Andrew Moravcsik, ‘Preferences and Power in the European Community: a Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, vol. 31, iss. 4, December 1993, pp. 473-524.
 William F. Jasper, ‘The War on Sovereignty: When the New World Order Architects at the Council on Foreign Relations Prattle about Sovereignty, They Mean Something Entirely Different from Independent Nation-States’, The New American, vol. 20, no. 10, May 17 2004, pp. 25-29.
 Arnold J. Toynbee, in Jasper, ‘The War on Sovereignty’.
 Jeremy Rabkin, ‘Why Sovereignty Matters’, American Enterprise Institute for Public Policy Research, Cornell University, 1998; Griffiths, and O’Callaghan, The Key Concepts, p. 296.
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 Miles, ‘Admiral Cites Partnership’;‘1206’ funding refers to Section 1206 of the National Defense Authorization Act (2006). This authority, enacted in 2005, provides the US Secretary of Defense with authority to train and equip foreign military forces and foreign maritime security forces for two purposes: first, to enable foreign military forces, as well as foreign maritime security forces, to perform counterterrorism; and second, to enable foreign military forces to participate in or to support military and stability operations in which US armed forces are participating–––Nino M. Serafino, Security Assistance Reform: “Section 1206” Background and Issues for Congress, Congressional Research Service, Library of Congress, February 2011.
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 By late 2010 the United States had still not committed itself to being bound by UNCLOS.
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 After 2008, the United States included increasing the level of maritime policing capacity to address piracy at sea in the Horn of Africa region.
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 The US Coast Guard Strategy for Maritime Safety, Security and Stewardship, US Department of Homeland Security, Washington DC, 2007, p. 5.
 ‘Capacity building’ refers to behaviour that increases the capabilities of a state, in this instance, to conduct the practical aspects of law enforcement at sea. This occurs through purchase of assets or gifting of assets such as ships, maritime patrol aircraft and/or infrastructures that support maritime law enforcement, information-sharing and other related support facilities.
 The ‘territorial sea’ is an extension of the territory of a coastal state, and extends to 12 nautical miles perpendicular to the coastline, measured from the low-tide mark of the coastline; one international nautical mile =1.852 kilometres exactly (that = 1.150779 land miles)–––Oxford English Reference Dictionary, Oxford University Press, NY, 1995.