Category Archives: Indo-Asia-Pacific

Naval Operations and the Right to Operate Freely in the Taiwan Strait

By Raul (Pete) Pedrozo

Introduction

A Turkish news report indicated that the transit of the Taiwan Strait by the USS Sampson (DDG 102) on April 26, 2022, triggered Chinese “counter-measures.” The report further indicated that the transit of the U.S. guided-missile destroyer was perceived by China as provocative and that such transits “intentionally sabotaged peace and stability in the region.” People’s Liberation Army-Navy (PLAN) ships and aircraft were positioned to the southwest and northeast of the strait to shadow the Sampson’s transit. Similar complaints are levied by China when a U.S. warship operates in the strait.

A statement released by the U.S. Seventh Fleet on April 26 countered the Chinese accusations, indicating that the U.S. warship had “conducted a routine Taiwan Strait transit through international waters in accordance with international law.” These transits demonstrate America’s “commitment to a free and open Indo-Pacific” and that U.S. ships and aircraft will fly, sail, and operate “anywhere international law allows.” What exactly does international law have to say about the rights of warships transiting the Taiwan Strait, and what does this imply for future operations and potential reactions?

The Taiwan Strait and UNCLOS

The average width of the Taiwan Strait is 97 nautical miles (180 kilometers); at its narrowest point, it is 70 nautical miles (130 kilometers) wide. Waterways, like the Taiwan Strait, that are greater than 24 nautical miles wide are considered geographic straits (UNCLOS, Article 36). In such straits, high seas freedom of navigation and overflight, and other lawful uses of the seas relating to such freedoms, apply in the water beyond the territorial sea, that is, the exclusive economic zone (EEZ) and/or high seas corridor (UNCLOS, Articles 58 and 87, and Part III). Thus, outside the territorial sea, U.S. warships and aircraft may conduct the same range of military operations in the strait that they conduct in foreign EEZs or on the high seas. Some of these lawful military activities include intelligence, surveillance, and reconnaissance (ISR) operations; launching and recovery of aircraft and other devices; submerged transits for submarines and other underwater devices; weapons exercises; military marine data collection and naval oceanographic surveys; underway replenishment; maritime interdiction operations; DPRK sanctions enforcement; maritime security operations; and flight operations.

The right of innocent passage applies in the areas of the strait along the coasts of China and Taiwan comprising their 12-nautical mile territorial seas (UNCLOS, Article 17) measured from baselines drawn in accordance with international law, which is normally the low-water line (UNCLOS, Article 5). Both China and Taiwan claim excessive straight baselines, which have been the subject of diplomatic and operational challenges by the United States since they do not comply with international law (UNCLOS, Article 7). If U.S. or other nations’ warships sail within 12 nautical miles of the low water line of the Chinese or Taiwanese coast, they must transit that area in innocent passage. Aircraft are not entitled to innocent passage and must remain outside of lawfully declared and recognized areas of national airspace. China’s incremental and incorrect characterization of the Taiwan Strait as either internal waters or an international strait, which would limit other nations’ high seas freedoms is another attempt to disrupt maritime operations that comply with the legal regime recognized in the rules-based international order.

PACIFIC OCEAN (Nov. 29, 2016) Arleigh Burke-class guided-missile destroyer USS Sampson (DDG 102) transits the Pacific Ocean. (U.S. Navy photo by Petty Officer 2nd Class Bryan Jackson/Released)

Countermeasures

The assertion that the USS Sampson transit triggered Chinese countermeasures against the United States is puzzling. Legally, the term “countermeasures” refers to the peacetime law of state responsibility, not self-defense. States assume responsibility for their internationally wrongful acts, which consist of acts or omissions attributable to the state under international law and constitute a breach of an international obligation of the state. (ASR, Articles 1, 2). A state breaches an international obligation when an act of that state is not in conformity with what is required of the state by that obligation (ASR, Article 12). China may, therefore, take countermeasures in response to an internationally wrongful act committed by the United States, but only if the U.S. act constitutes a breach of an international obligation the United States owes to China (ASR, Article 49). Furthermore, any countermeasures would be directed at the United States at the national level and in any event must respect the sovereign immunity of U.S. warships and military aircraft.

There is no international obligation for any state to refrain from transiting or operating in the Taiwan Strait. The EEZ/high seas corridor of the strait is just another body of water where all states, including the United States, have a right under international law to engage in high seas freedoms of navigation and overflight, and other lawful uses of the seas relating to such freedoms. With regard to the latter, military operations, exercises, and activities have always been regarded as internationally lawful uses of the sea (Official Records, Vol. XVII, p. 244). Moreover, such military activities that are consistent with the principles of international law embodied in Article 2(4) and Article 51 of the United Nations Charter are not prohibited by United Nations Convention on the Law of the Sea (A/40/535, ¶ 188). Thus, the transit of the USS Sampson is not an internationally wrongful act and China may not take countermeasures against the United States.

Future Messaging

Given that there is an EEZ/high seas corridor in the strait, U.S. ships and aircraft can, and should, do more than just “transit” continuously and expeditiously through the strait and instead should exercise high seas freedoms in the EEZ. Ships and aircraft of all nations have the right to conduct normal operations in accordance with their high seas freedoms within the EEZ/high seas corridor of the Taiwan Strait. Statements, like the Navy’s April 26 release, give the impression that U.S. ships and aircraft are limited in what they can do while operating in the Taiwan Strait. Future U.S. operations in the strait should clearly demonstrate, through words and actions, that the waters and airspace of the Taiwan Strait are not, in any way, under Chinese control or jurisdiction.

Professor Raul (Pete) Pedrozo, Captain, USN, Ret., is the Howard S. Levie Professor on the Law of Armed Conflict, U.S. Naval War College, Stockton Center for International Law. Prior to his retirement from active duty after 34 years of service, he served in numerous positions advising senior military and civilian Defense officials, including as the senior legal advisor to Commander, U.S. Pacific Command. He also served as the Director of the Navy’s International and Operational Law Department in the Pentagon.

The views expresses are those of the author and do not necessarily reflect the views of the Department of Defense or the U.S. Naval War College.

Featured Image: The Taiwan Strait (Gallo Images)

The Strait of Malacca: From Sultanates to Singapore

By Adam Greco

For centuries, merchant vessels have passed from the Indian Ocean to Eastern Asia through a small waterway nestled inside Southeast Asia. The Strait of Malacca (SoM) is the Strait south of the Malay Peninsula through which passes over a quarter of the world’s trade.

Strait of Malacca Map
The Strait of Malacca highlighted on a map of South Asia (Wikimedia Commons).

Three littoral states—Singapore, Malaysia, and Indonesia—border the Strait. the Strait’s importance derives from its status as one of the quickest routes connecting the Indian Ocean with the Pacific Ocean. 

This makes the Strait particularly important for both the United States and China in the realm of international commerce. According to a 2016 report by the Center for Strategic and International Studies, roughly $874 billion in exports from mainland China passed through the South China Sea, a body of water that is linked to the Indian Ocean primarily by the SoM. This dwarfs the same figure for the United States, which stood at $83 Billion. Despite this, prominent U.S. allies had high export values as well, such as South Korea ($249 Billion), Japan ($141 Billion), and Germany ($117 Billion). Additionally, it must be noted that not all exports sent through the South China Sea will go through the SoM. Due to its importance, the SoM has become a source of contention not only under the purview of economics, but security as well.

Hazards

On a map the Strait looks wide enough to accommodate any ship, yet there are a few tight spots that many are unable to pass through. This, combined with the Strait’s own prominence, has led to the creation of the Malacca-max – a maritime standard that is specifically designed to fit within these confines. Additionally, the constricted areas along the Strait may slow traffic due to crowding. There are no present plans to topographically alter the Strait to accommodate larger vessels, yet this does not necessarily mean that there is no attempt to alleviate local traffic congestion at all.

Slower traffic may also be caused by the two other prominent issues: haze and piracy. In recent years, the haze has been the greater of the two problems. Bushfires in the Sumatra region of Indonesia lead to significant amounts of smog for some months of the year that may make maritime transport more difficult. With a movement pattern from south to north across the Strait, this problem also greatly affects Malaysia and Singapore. 

Singapore, of the three strait-adjacent nations, has been the most fervent in efforts against the phenomenon. Singapore’s actions to mitigate the haze’s adverse effects have included, but are not limited to creating a task force to help prepare against it and using satellite imagery to alert Indonesia on precise bushfire locations. The haze hardly stops active vessels but instead serves to slow them down, and naturally, fewer obstacles in the region would be beneficial for maritime trade as a whole.

The Aerosol Index of air quality in the strait during the haze, showing a sharp decline in air quality compared to surrounding regions (Wikimedia Commons).

Far more severe than slowing down, piracy may remove a ship from the route entirely. More severe than associated fiscal costs from lost goods is the potential human cost that typically comes with violence from pirates. However, in the context of the SoM, piracy has declined significantly in recent years in both frequency and severity. This is primarily due to the large military presence in  the Strait from both the United States and China.

The War on Terror and  the Strait

The American War on Terror is commonly attributed to the Middle East, but terrorism is a global threat. Pirates are not commonly thought of as terrorists, though they function in a similar way and pose risks through the lenses of economic costs, human endangerment, and physical control. The U.S. Navy currently works on military exercises with the respective navies of its local partners, Malaysia and Singapore. Though some international transport insurance companies place special premiums on the Strait due to perceived “risk”, the vast military presence significantly deters pirate activity.

However, the U.S. military’s activity in the Strait does not sit well with China. From China’s perspective, their geopolitical rival is signaling geopolitical dominance in their lifeline to the world westward. The notable Chinese population in Malaysia, combined with infrastructural investments there, have led to improved Sino-Malaysian relations in recent years, but Singapore has shown to be more stubborn in this respect (despite larger Chinese cultural ties than Malaysia).

USS Ronald Reagan in Strait of Malacca
The aircraft carrier USS Ronald Reagan (CVN 76) transits the Strait of Malacca during a scheduled deployment. (U.S. Navy photo).

Geopolitical Implications

Chinese influence has increased greatly in the area within the past few decades. In the unlikely contingency of war between the U.S. and China, the Strait would be a vital zone of control. If the U.S. had undisputed dominance of it during an armed conflict, then this would pose a great threat to Chinese economic capability. This increases China’s incentive to expand naval operations there, yet not by much. Direct armed conflict between the United States and China is unlikely and is also economically unwise.

The current arrangement provides enhanced protection to trade routes of America and its allies, much of which includes commerce with China. Both the United States and China stand to benefit in this win-win scenario. China is a mass exporter of manufactured goods and a mass importer of oil, with many of their trade partners existing in regions best accessed through the SoM. Most of China’s oil comes from countries like Saudi Arabia and other Gulf States, which are subject to great influence from the United States. The bolstering of economies in this region can easily be seen as a positive outcome from the American point of view. 

There is much to ponder in the possibility of armed conflict between China and America in the context of the SoM, yet it is far more pragmatic to ponder peace and economic mutual development. Through a peaceful lens, the situation in the region turns from a contention between American and Chinese influence to one of potential benefit for all parties involved.

The Strait’s Future and its Alternatives

As Chinese trade increases, so does its naval presence. The future is not entirely clear, but most signs point to little change from the current situation. The two hazards mentioned previously will likely be the greatest challenges in the near term. Piracy, assuming it follows its current trend, will fade into being nothing but a rare occurrence. Meanwhile, the three strait-adjacent nations all have clear goals to lessen the haze. As these economies grow and technology develops, more sophisticated methods to mitigate the negative effects of the haze are on the horizon. 

China has looked at the congested nature of the Strait and has already taken first steps in securing alternatives. There have been talks in the past of digging a large canal through the Isthmus of Kra in Thailand, however the disastrous ecological implications of this endeavor mean it will likely not happen

Theoretical locations for the Kra Canal project (Wikimedia Commons).

A far more feasible possibility is the construction of an oil pipeline in Thailand to transport the resource quicker and easier to China. China’s constant rate of modern development paired with a limited supply of domestic fuel sources lead to an ever-increasing need for oil, which is what makes this pipeline so attractive. Other regional waterways, such as the Sunda Strait, have been considered and partially acted on as well. Additionally, a novel rail link is being constructed across the Malay Peninsula and is expected to be completed in the near future as part of China’s Belt and Road initiative. This network will not only transport freight, but passengers as well, further integrating Malaysia’s domestic economy. The geopolitical aspect of trade through Southeast Asia may be contentious, but economically, it spells out great potential development.

Adam Greco is an undergraduate student at the University of Florida.

Featured Image: Internal waves between Sumatra and Malaysia (Photo by NASA MODIS Rapid Response team)

China Coast Guard: On a Trajectory for Peace or Conflict?

By Ahmed Mujuthaba 

Coast guard roles are envisaged to lay a bridge between state enforcers on land and those beyond state waters. Understanding the fundamental application of coast guard organizations is important, especially given their varying roles and responsibilities in the maritime domain. Today’s coast guards are engaged in an operational spectrum spanning from an array of combat to civil defense roles, resulting in organizations that are seemingly limitless in their roles, authority, and capabilities.1 One such ostensibly boundless organization is the China Coast Guard (CCG).

This article will focus on this latest coast guard and its transformation into one of the world’s largest from two aspects. The first aspect is the requirement for the development and rapid expansion of a China Coast Guard. This includes the contested claims in the South China Sea and the East China Sea and an examination of how a maritime law enforcement agency would fit into that context.2 The second aspect is the China Coast Guard’s application. This examination will unravel the roles and responsibilities of China Coast Guard, its legal authority, and its conduct of operations.3

China’s Need for a Formidable Coast Guard

In 2013, four Chinese maritime law enforcement agencies were integrated to form the China Coast Guard Bureau, which was later transferred to the People’s Armed Police Force under the Central Military Commission in 2018.4 This process was an outcome of the 18th National Party Congress in 2012, which called to implement the “Maritime Great Power” strategy.5 The integrated agencies included the China Marine Surveillance, China Fisheries Law Enforcement, Maritime Police and Border Control, and Maritime Anti-smuggling police.6

In less than a decade, the China Coast Guard has transformed into the world’s largest ‘blue water’ coast guard.Generally, the term “coast guard” is attributed to enforcement agencies mainly tasked with maritime search and rescue, maritime law enforcement, and the regulation of maritime activities in domestic waters.8 Aligned well within these general requirements, the China Coast Guard is responsible for enforcing China’s sovereign maritime claims, surveillance, fishery resource protection, counter-smuggling operations, and general law enforcement operations.9

One of the urgent priorities for the Chinese to develop a coast guard was the weak Chinese maritime agencies, relative to their regional competitors. In 2010, in the ‘Five Dragons Stirring Up the Sea’, Goldstein states that the regional coast guards of the Pacific region, namely the Japan Coast Guard and the U.S Coast Guard, were comparatively large and more effective compared to Chinese capabilities.10 Expanding on this point, Goldstein also refers to Chinese experts raising the concern of rivalry among the maritime enforcement agencies within China that contributed to a weaker and less collaborative maritime enforcement construct.11

The other priority may have been the future development prospect of the Peoples’ Liberation Army (PLA) Navy as a blue water navy. Most strategists indicate that the requirement for Chinese naval expansion was the result of its humiliation during the 1995-96 Taiwan Strait crisis.12 This triggered a rapid development of the PLA Navy. A U.S Department of Defense report in 2020 claims that China has, by number of platforms, the largest navy in the world with approximately 350 platforms.13 In addition, the establishment of the first Chinese PLA Support Base in Djibouti, operated by the PLA Navy, puts its global power projection ambitions in check.14 Furthermore, the role of regional law enforcement previously utilized by PLA Navy platforms was projected as disproportionate aggression.

The most important priority for developing and strengthening a coast guard may have been the hotly contested maritime claims by China in the South and East China Seas. Chinese scholars claim that while Chinese sovereignty over the South China Sea territories was never contested before the 1930s, after that time China’s vulnerable status was exploited by global powers such as France and Japan.15 Since then, China has struggled to exercise complete authority over the territories, competing, and sometimes clashing with regional states such as Taiwan, Vietnam, Malaysia, Brunei, and the Philippines, all of whom also claim sovereignty over the island chains.16 In addition, the U.S Navy has continuously challenged the Chinese claims by conducting Freedom of Navigation Operations (FONOPs) in those waters, mostly policed by the China Coast Guard. Interestingly, Robert Kaplan has described this region as the battleground for the next global conflict.17

The other contested territory is in the East China Sea. Since claiming its disputed control over the Senkaku/Diaoyu Islands in the East China Sea by the end of the Sino-Japanese War in 1895, China has been continuously demanding its sovereign rights over the islands against Japan.18 As with the historical claims made over the South China Sea territories, China links its claims over the East China Sea territories as far back as 1372, when they discovered the islands and then named them in 1403.19 Meanwhile, the Japanese claim that the Senkaku/Diaoyu Islands were annexed by Japan into its Okinawa Prefecture on January 14, 1895, before signing the end of the Sino-Japanese War.20 Regardless of these claims, the two countries have been in frequent clashes with each other. These clashes include a 2010 incident in which a Chinese fishing boat collided with two Japan Coast Guard vessels; the 2012 Japanese nationalization of the islands resulting in the Chinese claiming territorial sea baselines; and the 2013 establishment of an Air Defense Identification Zone by China in the area.21

Application of the China Coast Guard

Considering the growing clashes in these contested maritime zones, the China Coast Guard’s role as a national tool of escalation or de-escalation is distinguished by its application of force. The most interesting aspect of this application is the “grey zone” tactics of the China Coast Guard. A RAND project defined gray-zone as “…an operational space between peace and war, involving coercive actions to change the status quo below a threshold that, in most cases, would prompt a conventional military response, often blurring the line between military and nonmilitary actions and the attribution of events.”22 Generally gray-zone tactics are activities or operations that fall between war and peace.23

The RAND definition of gray-zone can be broken down as one that: (1) operates between peace and war; (2) engages below the threshold of conventional warfare; and (3) creates ambiguity between civil-military action. The China Coast Guard is known to employ these activities in the Yellow, East, and South China Seas with the People’s Armed Forces Maritime Militia (PAFMM).24 The China Coast Guard has adopted tactics such as ramming into other states’ coast guard and fishing vessels, and actively promoting and accompanying Chinese armed fishing vessels taking up these tactics in disputed waters.25 These tactics go beyond the ‘white-hull’ law enforcement approach, although they do not cross a ‘grey-hull’ warfare response.26

The recent introduction to the China Coast Guard law in January 2021 was also of concern to most regional states as an added potency to its gray-zone activities.27 Article 21 of this law states that the China Coast Guard has authority to use force against foreign warships and foreign ships operated for non-commercial purposes.28 Okada, in his article, rightly claims that this is in violation of the United Nations Convention on Law of the Sea (UNCLOS) articles 32, 95, and 96, all of which grant immunity to the named category of vessels.29 UNCLOS also ensures freedom of navigation in the High Seas and the Exclusive Economic Zones under articles 58 and 87.30 In addition, countries with disputes in the region have protested against this law, which signals a more aggressive stance against future challengers to Chinese claims.31

This change in law could contribute to the escalation of incidents beyond the threshold of law enforcement or peaceful actions. An international conflict is not only limited to armed confrontation between military personnel, but it also includes confrontation between state, civil, or paramilitary forces, such as coast guards.32 Since not all nations interpret the Chinese version of UNCLOS and accept their claims, peaceful legal challenges or mere undertakings of innocent passage may be met with lethal force by the China Coast Guard. The new law has given the China Coast Guard the flexibility to operate within three spectrums: constabulary, gray-zone, and combat zones.

Conclusion

The China Coast Guard has grown from a feeble organization to one of the region’s most efficient and resourceful agencies. This article focused its examination on two main aspects of the China Coast Guard. The first was the requirement to develop a coast guard by the Chinese. Examining this need revealed three major priorities for the urgent development of a competent coast guard for China: 1.) the nation’s existing weak maritime enforcement capability compared to regional capabilities; 2.) the expansion of the PLA Navy’s responsibility beyond the region and the projection of a pacified regional posture; and, most important, 3.) the need to protect the Chinese claims over the territories in the South and East China Seas. The second part of this article focused on the China Coast Guard’s current application, such as its traditional roles as a coast guard, and its adoption of gray-zone activities with other state entities. It is anticipated that the current trajectory of the China Coast Guard’s development entwined with new conflicting legal authorities rendered to it, will further deteriorate the existing maritime security dynamics of an already fragile region.

LTC Ahmed Mujuthaba was the Principal Director of the Maldives National Defense Force Coast Guard, and is currently pursuing an MSc in Information Strategy and Political Warfare at the U.S. Naval Postgraduate School. He is trained in salvage diving from the PLA Navy Submarine Academy and also holds an MSc in Defense and Strategic Studies upon completion of the Indian Defense Services Staff College. You can follow him on Twitter: @mujuthaba. The views and opinions expressed are his own and do not reflect those of the U.S. Naval Postgraduate School, Maldives National Defense Force, or the Government of Maldives.

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Blanchard, Jean-Marc F. “The U. S. Role in the Sino-Japanese Dispute Over the Diaoyu (Senkaku) Islands, 1945-1971.” The China Quarterly, no. 161 (2000): 95–123. http://www.jstor.org/stable/655982.

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[1] Prabhakaran Paleri, “Coast Guards of the World and Emerging Maritime Threats,” Ocean Policy Research Foundation, 2009, p-52.

[2] Lyle J Morris, “Gray Zone Challenges in the East and South China Sea,” Maritime Issues, January 7, 2019, 8, p-3.

[3] Nguyen T. Trung, “How China’s Coast Guard Law Has Changed the Regional Security Structure,” Asia Maritime Transparency Initiative, April 12, 2021, https://amti.csis.org/how-chinas-coast-guard-law-has-changed-the-regional-security-structure/.

[4] “The Coast Guard Law of the People’s Republic of China,” Japan Ministry of Defense, accessed July 30, 2021, https://www.mod.go.jp/en/.

[5] Ian Bowers and Swee Lean Collin Koh, eds., Grey and White Hulls: An International Analysis of the Navy-Coastguard Nexus. (S.l.: Palgrave Macmillan, 2019), 19.

[6] “Are Maritime Law Enforcement Forces Destabilizing Asia?,” China Power (blog), August 18, 2016, https://chinapower.csis.org/maritime-forces-destabilizing-asia/.

[7] Ryan D. Martinson, “China’s Second Navy,” U.S. Naval Institute, April 26, 2015, https://www.usni.org/magazines/proceedings/2015/april/chinas-second-navy.

[8] Suk Kyoon Kim, “The Expansion of and Changes to the National Coast Guards in East Asia,” Ocean Development & International Law49, no. 4 (October 2, 2018), 314.

[9] “Are Maritime Law Enforcement Forces Destabilizing Asia?”

[10] Lyle Goldstein, Five Dragons Stirring Up the Sea: Challenges and Opportunities in China’s Improving Maritime Enforcement Capabilities, China Maritime Study, no. 5 (Newport. RI: China Maritime Studies Institute, U.S. Naval War College, 2010), 3.

[11] Goldstein, 2.

[12] Bernard D. Cole, China’s Quest for Great Power: Ships, Oil, and Foreign Policy (Annapolis, Maryland: Naval Institute Press, 2016), 52.

[13] Andrew Tate, “China Now Has World’s Largest Navy as Beijing Advances Towards Goal of a ‘World-Class’ Military by 2049, Says US DoD,” Janes.com, September 2, 2020, https://www.janes.com/defence-news/news-detail/china-now-has-worlds-largest-navy-as-beijing-advances-towards-goal-of-a-world-class-military-by-2049-says-us-dod.

[14] Andrew Jacobs and Jane Perlez, “U.S. Wary of Its New Neighbor in Djibouti: A Chinese Naval Base,” The New York Times, February 25, 2017, sec. World, https://www.nytimes.com/2017/02/25/world/africa/us-djibouti-chinese-naval-base.html.

[15] Jianming Shen, “China’s Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal of International Law 1, no. 1 (January 1, 2002), 98-99.

[16] Shen, 97.

[17] Robert D. Kaplan, “The South China Sea Is the Future of Conflict,” Foreign Policy (blog), accessed August 12, 2021, https://foreignpolicy.com/2011/08/15/the-south-china-sea-is-the-future-of-conflict/.

[18] “Timeline: China’s Maritime Disputes,” Council on Foreign Relations, accessed August 18, 2021, https://www.cfr.org/timeline/chinas-maritime-disputes.

[19] Jean-Marc F. Blanchard, “The U. S. Role in the Sino-Japanese Dispute Over the Diaoyu (Senkaku) Islands, 1945-1971,” The China Quarterly, no. 161 (2000), 101.

[20] Blanchard, 102.

[21] “Timeline.”

[22] Lyle Morris et al., Gaining Competitive Advantage in the Gray Zone: Response Options for Coercive Aggression Below the Threshold of Major War (RAND Corporation, 2019), 8.

[23] Andrew S. Erickson and Ryan D. Martinson, eds., China’s Maritime Gray Zone Operations, Studies in Chinese Maritime Development (Annapolis, Maryland: Naval Institute Press, 2019), 47.

[24] Erickson and Martinson, 25.

[25] Morris, “Gray Zone Challenges in the East and South China Sea.”, 3.

[26] Shawn Lansing, “A White Hull Approach to Taming the Dragon: Using the Coast Guard to Counter China,” War on the Rocks, February 22, 2018, https://warontherocks.com/2018/02/white-hull-approach-taming-dragon-using-coast-guard-counter-china/.

[27] “The Maritime Police Law of the People’s Republic of China,” January 29, 2021, https://m.gmw.cn/2021-01/29/content_1302079361.htm.

[28] “The Maritime Police Law of the People’s Republic of China.”

[29] Wataru Okada, “China’s Coast Guard Law Challenges Rule-Based Order,” April 28, 2021, https://thediplomat.com/2021/04/chinas-coast-guard-law-challenges-rule-based-order/.

[30] “United Nations Convention on the Law of the Seas” (United Nations, 1980), https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

[31] Kyodo News, “China Says Coast Guard Law Does Not Target Specific Nation,” ABS-CBN News, March 9, 2021, https://news.abs-cbn.com/overseas/03/09/21/china-says-coast-guard-law-does-not-target-specific-nation.

[32] Wolff Heintschel von Heinegg, “The Difficulties of Conflict Classification at Sea: Distinguishing Incidents at Sea from Hostilities,” International Review of the Red Cross 98, no. 902 (August 2016), 451.

Featured Image: A China Coast Guard vessel patrols the disputed Scarborough Shoal on April 6, 2017. (Credit: Reuters)

Covid-19 and Its Implications for Security at Sea: The Indonesian Case

By Adri Wanto

Case Studies in Armed Robbery in the waters of Bintan, Indonesia

Many economists predict that the Covid-19 outbreak will cause an economic crisis in Indonesia. Some even say this crisis will be more severe than the 2007 global financial crisis and the 1997 Asian financial crisis.1 The Indonesian government has been forced to take drastic steps to prepare for a potential economic downturn, making budgetary adjustments that have seemingly started to influence the security sector. 

In the field of security, Indonesia has paid special attention to threats at sea, namely, the increasingly assertive maritime security threat from China and ocean crimes that have been increasing since the Covid-19 pandemic began. Since 2020, China has carried out some fairly aggressive operations in the South China Sea. As a response to the territorial threat from China, the readiness of the Indonesian Navy in the Natuna Islands region has not declined. However, some argue that the increase of armed robbery incidents show that Indonesia’s security capability has been reduced because of the reallocation of budget and military personnel. 

Theoretically, the economic downturn caused by the pandemic will trigger an increase in the incidence of ocean crimes due to economic factors. An emergency situation such as the Coronavirus pandemic can cause people who are unable to meet their basic needs to be desperate enough to commit crimes in order to survive. According to data from the Indonesian National Police Headquarters (Polri), the crime rate during the Covid-19 pandemic has increased 11.8% throughout Indonesia.

Similarly, in January 2021 the Executive Director of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) Information Sharing Center (ISC) stated that the increase in armed robbery most likely stemmed from economic motivation caused by Covid-19.

To understand the increase in armed robbery incidents in the Singapore Strait, we need to diagnose the problem and address it with caution. Is it true that the high level of crime in the Singapore Strait bordering with the waters of Bintan Island is only caused by economic factors or is other factors at play? If there are other factors, then what are they? Could it be that the problem of crime at sea is caused by problems on land that are not being managed properly? The next question is how to address these problems.

According to data released by ReCAAP, armed robbery incidents in the Singapore Strait increased in the first half of 2021. In total there were 20 incidents, up from 16 cases in the same period the previous year. Of the total 16 incidents that occurred in 2020, 13 of them were in the East Line, in the waters off Bintan Island, most of which were in Indonesian territorial waters.2

ReCAAP also noted that during the first six months of 2021, there were a total of 37 incidents of armed robbery at sea in Asia, down from 57 cases in the same period last year. In 2020, the total number of reported cases of piracy was 97 incidents. Meanwhile in 2019, the number of piracy cases was 83 cases. This means that the number of cases of armed robbery in Asian waters in 2020 increased by 17 percent compared to 2019. The crime incidents occurred in the Singapore Strait and the South China Sea, as well as the waters of countries such as Bangladesh, India, Indonesia, Malaysia, the Philippines, and Vietnam. 

Budget Dilemma

Indonesia’s Minister of Finance, Sri Mulyani Indrawati, said that the government would cut the budget for the Ministry of Defence and the National Police (Polri) by Rp 38.03 trillion (US $2.7 billion) for 2021. She plans to shift the budget from the two institutions to finance vaccination funds, health care, and other urgent needs for national economic recovery. In various national media, the Minister of Finance assessed this step as the impact of the very dynamic need for handling Covid-19. The potential budget to be cut at the Ministry of Defence is Rp 23.16 billion (US $1.6 million).

After attending several meetings with the Republic of Indonesia (DPR) House of Representatives, the Indonesian Military (TNI), and Polri, Sri Mulyani cancelled the plan. This was because the budgets of the two institutions were used to carry out Covid-19 vaccinations. She said that the government had no reason to refocus the budgets of the two institutions. The government continues to reduce the budget for other ministries/agencies, but not for the TNI and Polri.

The budget for TNI and Polri is used to support the government’s efforts to create herd immunity. “The Finance Ministry provides a budget so that the TNI and Polri are able to pursue the target of 70 percent herd immunity in Indonesia. Relying on medical and civilian personnel alone may be difficult to achieve the group immunity target. Civilian institutions are unable to carry out mass vaccinations without help from military and security services. This is considered as military operations other than war (MOOTW), as it assists the government to handle the pandemic. In the Riau Islands, for example, many vaccination posts are served by TNI and Polri personnel.

TNI plays a vital role in vaccination in the Kepri Province. Over the last few months, the Joint Regional Defence Command I (Kogabwilhan) Tanjungpinang has carried out a vaccination drive to help the government accelerate vaccination numbers in the Riau Islands. Kogabwilhan opened vaccination posts in their Headquarters and Senior High School in the city of Tanjung Pinang, capital city of the province and sited at the south western coast of the Bintan Island. The program was cooperation between Kogabwilhan I in collaboration with the Ministry of Transportation and the Riau Islands Provincial Government.

Since the government started the vaccination program, the TNI has been deployed to reach the target vaccination. The TNI deployed 91,817 personnel nationwide to assist in handling the corona virus for 150 days in 2021. To deploy 91,817 personnel, the TNI has prepared a budget of Rp. 1.4 trillion. Moreover, TNI also allocated Rp 1.8 trillion that will be used to meet the needs of medical equipment in 109 hospitals owned by the TNI in handling coronavirus patients.

The diversion of the TNI budget was used to purchase Personal Protective Equipment (PPE), rapid tests, swab tests, and wireless smart helmets with mass temperature screening. The refocusing of the budget and personnel of the TNI, especially the Navy (TNI-AL), which was mobilized to deal with Covid-19, has seemingly caused the weakness of law enforcement at sea. However, we need to ask ourselves a hypothetical question: if there were no military budget reallocation and deployment of TNI to handle Covid-19, would the number of armed robbery cases be as high? 

Difficulties in Dealing with Armed Robbery

The Riau Islands has one of the highest vaccination rates in Indonesia. This achievement is not only the success of the local government, but also due to the very strong role of the military. However, the achievement comes at a cost. Since the government began carrying out mass vaccinations, many Navy personnel have been drawn ashore to assist in handling health and other urgent needs in the recovery of the national economy. This means that there are a reduced number of Navy personnel at sea. 

An officer from TNI AL in Tanjungpinang, who wishes to remain anonymous, said that, “Currently we are concentrating on helping the government accelerate vaccination in the Riau Archipelago. So, indeed many of our personnel were drawn ashore to pursue the target of the vaccination program” in an interview by the author.3 However, the officer denied that the budget reallocation impacted TNI-AL readiness in dealing with armed robbery in Bintan waters. 

In an interview with the author, another TNI-AL officer in Bintan, who also wishes to remain anonymous, said, “Dealing with sea armed robbery is much more difficult compared to dealing with pirates. They use small boats similar in size to local fishing boats. The armed robberies generally occur at night when hundreds of fishing boats are doing their activities. The minute that armed robbers depart from a ship they have targeted, it’s almost impossible for us to arrest them. It is like looking for a needle in a haystack. It is very difficult for us to identify them because their boats are so similar to the local fishing boats. We cannot check the fishing boats one by one to find the evidence. Knives or swords cannot be considered as evidence since all the local fisherman boats have knives and swords in their boat to untangle their fishing nets that frequently become stuck on the rock.”4

This officer also stated that “The main items that perpetrators have targeted are engine spare parts and scrap metal on barges. If you are really serious to dismantle the armed robbery networks, you can start to find the stolen engine spare parts in Batu Ampar (Batam). From Batu Ampar, you will understand the whole story of armed robbery in this region. However, this is out of our authority to conduct such an investigation. You should discuss it with the Police.” The officer also said that, “It is a lot of work to deal with such an assertive maritime security threat from China, illegal fishing, marine pollution, piracy, drug smuggling, people smuggling, oil spills, and many others. In many cases, some media exaggerate theft in the sea as armed robbery.” 

In an interview with Hamdan, one of the bosses of the perpetrators smuggling illegal goods into Malaysia and Singapore, he said that since the spread of Covid-19, various forms of illegal trade have decreased. Prior to the pandemic, Hamdan and his subordinates routinely smuggled goods to Malaysia and Singapore. He also smuggled Indonesian workers into Malaysia and returned other illegal Indonesian workers to Indonesia. In one month, there used to be four to six trips of illegal workers, but since Covid-19, there is not even one a month.5 In illegal trading activities, Hamdan himself acts as a deliveryman for illegal goods on a speed boat that he owns and is operated by his subordinates. 

Currently, Hamdan finds it difficult to keep his subordinates doing his illegal business. He said, “In a difficult situation like this, I still have to pay them because they need to live. What I do now is just call them when there are goods to be sent to Malaysia. That’s not often either. Currently only bird smuggling is still going into Malaysia and bringing back illegal Indonesian migrant workers from Malaysia.” Regarding armed robbery and theft in the sea, he said that for the Singapore and Bintan border areas it was carried out by his subordinates. Hamdan claimed that they did so because of the economic situation and the absence of routine illegal trading activities that they usually did before the Covid-19 outbreak.

Hamdan also claimed that the perpetrators of armed robbery and theft in the sea are still in the same network. He said, “Criminals in the sea are different from criminals on land. Those who are used to committing crimes on land will not necessarily understand criminal patterns at sea.” This means that the actors of armed robbery and theft at sea are those who are already accustomed to doing business at sea. He also said, “When overseas business starts to run as before the Covid-19 outbreak, armed robbery and theft at sea will also reduce because they will return to their jobs and get income as before.”

One of the bosses of the smugglers based in Bintan, Tohirin, said, “The perpetrators of theft at sea are those who are familiar with the sea and know the routines of activities at sea. You know, they used to have routine jobs to smuggle goods. When there is no job available, they have no choice but to do that.”6 Mr. Tohirin also added that illegal trade activities are not only carried out between countries but also between islands. He said, “They would still have jobs in this current situation, if the business of smuggling goods out of Batam had not been taken over by big businessmen.”

Tohirin also commented that, “Before Apri Sujadi became the Regent of Bintan, we small-scale smugglers could still get an income from smuggling cigarettes, alcoholic beverages, cars and motorbike spare parts, and machinery from Batam to other islands by speedboat. After he became the Regent, some of our illegal businesses were taken over by him… Cigarette and alcoholic beverage smuggling has been taken over by big businessmen from Apri Sujadi’s circle.” Tohirin’s statement implies that corrupt actions by unscrupulous officials on the mainland had a significant effect on the increase in armed robbery and theft at sea. 

Since 12 August 2021, the former regent of Bintan, Apri Sujadi, has been detained by the Corruption Eradication Commission (KPK) in a case of alleged corruption in the regulation of excisable goods in the management of the Free Trade Area and Free Port (KPBPB) of the Bintan Regency from 2016-2018. Apri is also a suspect in a corruption case in determining quotas for cigarettes and alcoholic beverages in the Bintan Free Trade Zone and Free Port Concession area. In addition to Apri, the KPK named the Acting Head of the Bintan Free Trade Area and Free Port Concession Agency for the Bintan Regency area, Mohd Saleh Umar, as a suspect in the same case. Apri and Mohd Saleh H Umar are suspected of causing state losses of Rp. 250 billion (US $17.4 million).

According to Tohirin, high-ranking officers in Kepri were also involved in various smuggling cases. Mr. Tohirin also shared his experience. He said, “There were a lot of high ranking government officers who used the official route to bring goods out of Batam by using the car ferry from the Telaga Punggur Batam port to the Tanjung Uban port. They were government officials who could easily carry goods on a large scale without any problems. The Customs Officers wouldn’t be brave enough to ask for their documents. After Jokowi became President [of Indonesia], there were a lot of changes in the Customs Office. Many of my colleagues were arrested, not to mention small-scale smugglers like us. Hajji Permata, a prominent player, was shot to death by Customs Officers.” 

On January 15, 2021, Jumhan, well-known as Haji Permata, was shot to death by Customs Officers, due to illegal goods smuggling activities. His name often appears in relation to customs cases over the last decade. A number of his ship’s crew members also often face Customs and Excise charges. On April 17, 2015, he was convicted in connection with the attack on the Regional Office IV of the Directorate of Customs and Excise (Kanwil DJBC) in the Riau Islands Province. He was sentenced to five months in prison. 

Haji Permata was accused because he was thought to be the mastermind of mobilizing hundreds of people to attack the Customs and Excise Office after Customs Officers arrested his ship, which was loaded with illegal goods. Regarding the Haji Permata case, Tohirin commented, “So please understand that in a difficult position like right now, the reason why my friends commit crimes at sea. After Haji Permata’s death, what are his workers going to do? I believe it’s only temporary to survive.”

In contrast to Hamdan and Tohirin, a smuggler based in Batam, Iwan, has a different perception regarding the high number of armed robberies and thefts at sea. According to him, armed robberies will continue due to the high demand for stolen ship spare parts at the Batu Ampar port, Batam. The stolen spare parts are priced far below the official price. He said the demand for stolen spare parts was not only from Indonesia, but increasingly by ships from Singapore and Malaysia. Therefore, according to him, the main items targeted by pirates are engine parts and scrap metal on barges because scrap metal is quite expensive. Batam’s Batu Ampar port is indeed filled with used goods from Singapore.

Regarding the circulation of stolen ship spare parts at the Batu Ampar port, based on our interview with some regional police officers, the police could not move to make arrests. This is due to several issues related to procedure. First, there is no report of loss to the Regional Police so the police don’t have any legal reason to make arrests. Second, the police have to first prove that the goods were stolen because they cannot act based on assumptions. Third, crimes committed in international waters are beyond the authority of the regional police. Moreover, the Riau Islands Regional Police have never been involved in collaborations and discussions concerning crimes at sea. In principle, the police will follow up if there is a report and it is under the authority of the police to handle the problem.

The increasing number of incidents of armed robbery in the border waters of the Riau Islands Province with Singapore and Malaysia is due to a decrease in illegal trading activities between the Riau Islands, Johor, Malaysia, and Singapore. This is due to restrictions on human movement activities to avoid spreading Covid-19. The perpetrators of armed robbery and theft at sea are those who used to carry out illegal activities at sea and are directly affected by the spread of Covid-19. To survive at sea they become perpetrators of armed robbery and theft. The perpetrators of the armed robbery already have their own ecosystem, so it is very unlikely that new criminal actors will be present in the border area without their network knowing. Furthermore, efforts to dismantle the armed robbery network and theft at sea are almost impossible without involving the Riau Islands Regional Police (Polda), especially to be able to dismantle the reservoir for stolen ship engine spare parts circulating in Batam.

Adri Wanto is a PhD Student, Austronesia Studies, Asian-African Institute (AAI), University of Hamburg, Germany.

Endnotes

1. See also https://www.rolandberger.com/en/Insights/Publications/This-crisis-is-different-Comparing-the-coronavirus-crisis-with-the-financial.html accessed 6 September 2021.

2. See also https://dfw.or.id/laut-indonesia-rawan-kejahatan-maritim/ accessed 6 September 2021.

3. The interview was conducted on August 24, 2021 in Tanjungpinang. 

4. The Interview was conducted on August 25, 2021 in Bintan. 

5. The interviewee agreed to be interviewed on the grounds that their name was changed. The interview was conducted on August 26, 2021 in Bintan.

6. he interviewee agreed to be interviewed on the grounds that their name was changed. The interview was conducted on 27 August 2021 in Bintan.

Featured Image: In a demonstration, Indonesian naval forces storm the “hijacked” MT Promise off Batam island in the southern end of the Malacca Strait on May 11, 2012. (Photo by Alphonsus Chern / Singapore Press via AP, file)