Hazmi APP1

The Application of CompulsoryPilotage in Straits Used forInternational Navigation: A Study ofthe Straits of Malacca and Singapore

Mohd Hazmi bin Mohd RusliAustralian National Centre for Ocean Resources and Security (ANCORS)University of Wollongong

Part III of the United Nations Convention on the Law of the Sea 1982 prescribes thatvessels and aircraft of all flags may exercise the right of transit passage while navigatingthrough straits used for international navigation. This created a difficult situation for statesbordering straits, particularly in protecting the marine environment of their territorialstraits from vessel-source pollution. The Torres Strait was designated as a ParticularlySensitive Sea Area (PSSA) in 2005 and Australia introduced a compulsory pilotage regimeas its Associated Protective Measures (APM), which has been effective in minimizing therisk of casualties in the Torres Strait. The increasing shipping traffic in the Straits ofMalacca and Singapore may bring about adverse effects to the marine environment ofthese waterways. Hence, this article discusses the question of the viability and practica-bility of application of compulsory pilotage, should it be extended to the Straits of Malaccaand Singapore.

Key words: compulsory pilotage, Law of the Sea, Particularly Sensitive Sea Areas, Straits of Malaccaand Singapore

Straits of Malacca and Singapore: An Introduction

Astrait has never been legally defined in an international convention orinstrument. The ordinary meaning of strait in geographic terms is “a natural

passage or arm of water connecting two larger bodies of water” (Roberts, 2006,p. 98). On the other hand, the legal definition of straits based on the legal conceptof the territorial sea is “any passage whose minimum breadth is equal to or lessthan, the combined territorial sea claim of the bordering State or States” (Smith,1974, pp. 88–89). The Straits of Malacca and Singapore are narrow waterways thatconnect the Indian Ocean to the West and the Pacific Ocean to the East. Theentrance to the straits is located between Ujung Baka (5° 40′N, 95° 26′E), thenorthernmost tip of Sumatra, to Lem Voalan (7° 45′N, 98° 18′E) in Phuket Island

Asian Politics & Policy—Volume 3, Number 4—Pages 501–526© 2011 Policy Studies Organization. Published by Wiley Periodicals, Inc.

in Thailand (“Executive Summary,” 2008). The Strait of Malacca is quite wide atits opening to the Andaman Sea, which is about 200 nautical miles in breadth(Emran, 2007). The Strait of Malacca separates mainland Malay Peninsula and theIndonesian island of Sumatra, forming a funnel-shaped waterway as it narrows tothe south. It has many tributary waterways along its length, namely the Strait ofBengkali, Strait of Rupat, and Strait of Johor (George, 2008). As it goes south, itends in areas between Malaysia’s Tanjung Piai (1° 11.5′N, 103° 21′E) and Indo-nesia’s Pulau Karimun Kecil (1° 10′N, 103° 23.5′E) and subsequently joins theStrait of Singapore, which is located between the island Republic of Singapore,the south coast of Eastern Johor, and the islands of Riau in Indonesia (Ibrahim,Husin, & Sivaguru, 2008).

The Strait of Singapore, which is about 60 miles long, is a gateway to the largerSouth China Sea that acts as a link to the Pacific Ocean. Its narrowest width is offthe southern tip of Singapore, where it is slightly more than a kilometer wide(Oei, 2003). The Strait of Malacca is bordered by three countries, in smaller partby Thailand and mainly by Indonesia and Malaysia. The Strait of Singapore isbordered by Singapore, Indonesia, and Malaysia. There are in the world approxi-mately 116 straits that are recognized as straits used for international navigation.These straits are the choke points of the world’s maritime superhighway. Somecommentators have taken the view that as the Straits of Malacca and Singaporeare interconnected, as far as maritime navigation is concerned, they should betreated as one watercourse (Koh, 1999).

Due to their strategic geographical location in the middle of one of the world’smost important maritime crossroads, the Straits of Malacca and Singapore formthe shortest route connecting the East and the West (Khalid, 2005). They have alsobeen consistently described as two of the most important oil transportation chokepoints on the planet (Cheng, Singhal, Bharat, Khoo, & Haskins, 2008). With theemerging economies of East Asian giants, namely China, Japan, and South Korea,both the Straits of Malacca and Singapore will continue to increase in theirsignificance as tanker pipelines connecting the oil producers in the Middle Eastwith their East Asian consumers (Sien, 1998a).

The Straits of Malacca and Singapore: Important Waterways

Fishing, Tourism, and Marine BiodiversityThe Straits of Malacca and Singapore are important fishing grounds for their

coastal populations. Their coastlines are rich with mangrove vegetation andextended mudflats, which are vital breeding grounds for important fish, prawns,crabs, and other marine creatures (Hooi, 2008). The marine fisheries industry inMalaysia contributes considerably to the national economy in terms of income,foreign exchange, and employment (Ishak & Hooi, 2008). In 2007, the total numberof fish landings in Peninsular Malaysia’s West Coast states was around 692,985tonnes valued at RM2.263 billion, and in 2009, the number of fish landings hasincreased up to 729,558 tonnes, an increase of about 5% of that of 2007 (Kasmin,2010). Furthermore, coastal areas on both the Straits of Malacca and Singapore arealso renowned for their many white sandy beaches, coral reef concentration,getaway islands, and many other natural attractions, either on the Sumatra side or

502 Asian Politics & Policy

the western coast of Peninsular Malaysia and the Riau Islands to the south. Withthe recent declaration in 2009 by the United Nations World Tourism Organizationthat put Malaysia as the world’s ninth most traveled destination, the tourismindustry in Malaysia is experiencing significant development. It is one of thefastest growing sectors of Malaysia’s economy, contributing 6.78% of the totalexport income in 2008 (Jayaraman, Lin, Guat, & Ong, 2010).

Besides being significant for fishing and tourism industries, as shown inMap 1, the Straits of Malacca and Singapore and their coastal areas are also vitalfor biodiversity conservation, as they are habitats for many scarce and endan-gered fauna such as migratory birds, monkeys, fruit bats, estuarine crocodiles,dolphins, dugongs, turtles, and fireflies (Hooi, 2008). There are also concentra-tions of coral reef in some areas of the straits, such as in Cape Rachado (TanjungTuan) and Pulau Payar Marine Park, which are natural homes for marine lifelike sea sponges, crustaceans, and coral reef fish. The Malaysian coastal areasfacing the Strait of Malacca also possess areas that have been recognized bythe United Nations Educational, Scientific and Cultural Organization (UNESCO)for their educational and historical importance, such as the Georgetown, PenangUNESCO World Heritage Site, Malacca UNESCO World Heritage Site, andLangkawi UNESCO Geopark (“Melaka and George Town,” 2011). The southerntip of Asia, Tanjung Piai, which is busy with shipping activities, has also beendesignated as one of the RAMSAR sites due to its significance in wetland con-servation. The Convention on Wetlands of International Importance, referred toas the RAMSAR Convention, is an intergovernmental treaty that provides theframework for national action and international cooperation for the conservationand wise use of wetlands and their resources. The mission of the Convention isto conserve and to wisely use all wetlands through local and national actions andinternational cooperation, towards achieving the goal of development sustain-ability (“The Annotated Ramsar List,” 2008).

ShippingApart from the interests already discussed, the importance of both the Straits

of Malacca and Singapore to global maritime navigation is undoubted. Thesewaterways are two of the most important shipping lanes in the world and areconsidered to be the world’s longest straits used for international navigation(Kamaruzaman, 1998). If these straits were closed for navigation, vessels wouldbe forced to traverse the longer Lombok and Makassar routes through Indone-sian archipelagic waters, and the Celebes Sea south of Mindanao through theSurigao Strait and along the eastern Philippine waters, inevitably adding toshipping costs (Sondakh, 2004). As a result, the navigational distance for vesselsbetween the Middle East and the East Asian ports would be extended by 1,000nautical miles (Sakamoto, 2008). A Japanese study shows that if tankers used theLombok and Makassar Straits, this would cost Japanese consumers an additionalUS$0.10 in the price of crude oil in Japan and would cost each tanker an extra 10million yen for the two additional days required to navigate the Lombok Strait(Sien, 1998b). After the recent crude oil spikes, this would mean an extra shippingcost of US$500,000 per ship per voyage for a large vessel such as a very large

A Study of the Straits of Malacca and Singapore 503

crude carrier (VLCC; Sakamoto, 2008). Any interference with the free flow ofmaritime traffic through the Straits of Malacca and Singapore would therefore bedetrimental for the global economy.

Navigational Regime Through the Straits of Malacca and SingaporePart III of the United Nations Convention on the Law of the Sea 1982 (LOSC)

expounds on the legal status of straits used for international navigation and isapplicable to both the Straits of Malacca and Singapore. The regime of transitpassage provides for continuous and expeditious passage of all vessels andaircraft through straits used for international navigation, which cannot be denied,hampered, or impaired by the bordering states.1 The states bordering straits mustgive appropriate publicity to any danger to navigation or overflight within orover the straits of which they have knowledge (Beckman, 2004). Unlike theregime of innocent passage where the coastal states have the right to temporarilysuspend passage of foreign vessels for reasons essential for the security of thecoastal state,2 the bordering states of straits used for international navigation donot have this right (Beckman, 2004). The LOSC does, however, encourage statesbordering straits and user states to cooperate in maintaining and preserving themarine environment of the straits.3

Existing Marine Environmental Protection Measuresin the Strait of Malacca

Malaysia, Singapore, and Indonesia are parties to the LOSC. As such, they arebound by its provisions not only in formulating laws to regulate maritime trafficin the Straits of Malacca and Singapore, but also in taking measures for theprotection and preservation of the marine environment of the straits (Smith &

Map 1. Areas along the Strait of Malacca with high cultural, economic, educational, andhistorical importance

Source. Google Maps (http://maps.google.com.my/maps?hl=en&tab=wl)


Roach, 1996). These states are inextricably connected based on the fact that theycannot act unilaterally on these matters.4 A fundamental principle that the littoralstates, namely Malaysia, Indonesia, and Singapore, must follow in legislating forthe passage of vessels in the Straits of Malacca and Singapore is that these lawsmust not, in one way or the other, have the practical effect of hampering, denying,or impairing the right of transit passage.5 The littoral states are permitted to makelaws by giving effect to applicable international regulations6 and to refer theseregulatory measures to the competent international organization that is the Inter-national Maritime Organization (IMO) to be endorsed and adopted by the IMOAssembly before being implemented by the littoral states.7 Once implemented,transiting ships and vessels are expected to observe and comply with thesemeasures.8

Efforts to regulate maritime traffic to provide safer shipping in these waterwayswere initiated well before the introduction of the LOSC. This was done throughthe Joint Statement on the Malacca Strait on November 16, 1971, when the threegovernments agreed that matters of navigation safety related to the straits fallunder the responsibility of the coastal states concerned. A Tripartite TechnicalExperts Group (TTEG) on the safety of navigation was established to facilitatecooperation between littoral states in developing measures to regulate safershipping in the straits. At that time, the littoral states, particularly Malaysia andIndonesia, were of the view that the straits were not straits used for internationalnavigation but did acknowledge their importance to international navigation(Forbes, 1995).

With steadily increasing navigational traffic transiting the straits each year, itwas crucial that ships’ routing systems be established in these waterways. Thefirst Traffic Separation Scheme (TSS) was introduced in 1977 and was firstadopted by IMO through Assembly Resolution A.375(X). This involved areasincluding the One Fathom Bank, Singapore Strait, and the Horsburgh Light-house Area (Resolution A. 375(X), 1977). The TSS was amended in 1981 (Resolu-tion A.476(XII), 1981) and was again adjusted and extended in 1998 toaccommodate the increased shipping traffic in the Straits of Malacca and Sin-gapore (Beckman, 2009b). Under Article 41(7) of the LOSC, vessels traversingthrough the straits are bound to follow the prescribed TSS. Together with theTSS, the TTEG on Safety of Navigation also discussed the matters pertaining tothe minimum requirement of under keel clearance (UKC). The UKC refers tothe distance between the seabed and a ship’s keel. It became a contentious issuegiven that the waters of the straits are relatively shallow, making them environ-mentally and navigationally dangerous if navigated by large tankers of over200,000 dead weight tonnes (DWT; Sien, 1998b). Malaysia initially proposed 4.5meters UKC, Indonesia 4.4 meters, and Singapore 2.5 meters (Sativale, 2003). Asa compromise, the TTEG on maritime safety agreed with a UKC of 3.5 meters,which was submitted to and agreed upon by the IMO through IMO AssemblyResolution A 375(X) (Resolution A. 375(X), 1977). Under Resolution 375(X), thelittoral states have introduced more measures on navigational safety, such as theusage of the designated deepwater route by deep draught vessels and ensuringthat vessels comply with accepted international conventions and recommenda-tions (Yaacob, 1997). Besides TSS and UKC requirements, the littoral states, withthe assistance of the members of the international community, have imple-


mented various navigational safety measures in the straits, such as the VesselTraffic Management System in 1997, the Mandatory Ship Reporting System(STRAITREP) in 1998, and other aids to navigation in that area (Basiron, 2004).

Another navigation safety development in the Straits of Malacca and Sin-gapore is the Marine Electronic Highway Project (MEH). The MEH, whichstarted in 2006, is aimed at providing safer shipping through precision naviga-tion utilizing information technology to facilitate safer shipping (Sekimizu,Sainlos, & Paw, 2001). This is achieved by having smooth communication anddata exchange between onshore, sea-based, and ship-based transponder facili-ties. With enhanced communication and data exchange, hydrographic andoceanographic data including weather conditions can be transmitted effectivelyand received, facilitating ships’ movement in difficult and constricted waterwayssuch as the Straits of Malacca and Singapore. This project is still at an early stageand is being gradually developed in the straits, focusing on areas where TSS isapplicable.

The improvement and installation of reliable navigational safety aids and infra-structure in the Straits of Malacca and Singapore have witnessed continuedincreases in navigational traffic in the straits. In 2007, approximately 80,000 vesselsof all types transited the straits of Malacca and Singapore, as shown in Table 1.

From 40,000 ship movements in 1982 (Naidu, 1997) to almost 80,000 in 2007, itis predicted that traffic will continue to increase up to 140,000 ship movements bythe year 2020 (Sakhuja, 2007). Traffic in the straits is reported to grow at anaverage rate of 9% annually (M. R. b. Ahmad, 1997). This ongoing phenomenonwill eventually affect the well-being of the marine environment of both the Straitsof Malacca and Singapore.

The Impacts of Shipping on the Marine Environment of the Straits ofMalacca and Singapore

Oil spills and discharge of waste are typical of modern shipping activities,either through operational or accidental discharges. With the high volume ofshipping movements in the Straits of Malacca and Singapore, there is always ahigh risk of the occurrence of maritime casualties involving accidental spills of oilin the waters of the straits. Oil spill incidents entail adverse impacts on the marineenvironment. They may deteriorate the well-being of sea and coastal wildlife

Table 1. Transiting Vessels in the Straits of Malacca and Singapore in 2007

Vessel type Transits % Transits DWT % DWT

Container 26,884 35 1,018,691,556 24Dry bulk 13,416 17 907,891,519 22Other dry cargo 16,286 21 171,583,651 4Tanker 21,073 27 2,133,689,923 50Total 77,659 100% 4,231,856,649 100

Source: Mandryk (2008).


through destruction of coastal and marine ecosystems. An oil slick has devastat-ing effects on everything that it touches, whether further out to sea or in thecoastal areas. This was illustrated by the 1997 MT Evoikos and MT Orapin Globalcollision in the Strait of Singapore (“Malaysia’s Response to the EvoikosIncident,” 1998). The collision caused an oil spill that later formed a slick flowingfrom the collision site toward the Malaysian side of the Strait of Malacca. As aresult, the whole west coast of Peninsular Malaysia from Johor to Selangor wasexposed to the pollution threat. This oil slick posed hazards not only to themarine environment but also to the mangrove swamps and jungles, fish andprawn farms in coastal areas, and the beach resorts along the southwestern coastof Peninsular Malaysia. Moreover, the costs for cleaning up are not cheap either.The Diego Silang 1976 oil spill cleanup cost US$1,086,421 (Chou, 1994), and theNagasaki Spirit oil spill incident in 1993 incurred cleanup expenditures amount-ing to US$1,506,160 (Rusli, 2010).

Due to the busy nature of the straits, maritime accidents are still happeningalong these waterways. The most recent accident that took place in the Strait ofMalacca involved a collision between a Liberian-registered tanker, MT FormosaProduct Brick, and an Isle of Man–registered tanker, MV Ostende Max, on August19, 2009, in waters off Port Dickson, Malaysia (BERNAMA, 2009). Fortunately,after extensive monitoring work, the Malaysian Maritime Enforcement Agencyconfirmed that neither naphtha nor oil spills had taken place (R. Ahmad, 2009).Later in the same year, another foundering incident occurred involving an Indo-nesian ferry, Dumai Express 10, in which 29 passengers drowned. The ferry was hitby the turbulent waters off Tokong Hiu, Karimun, Indonesia, causing the star-board side of the ship, which was carrying 279 passengers, to split in half (“HowTragic,” 2009). In 2010, a tanker identified as MT Bunga Kelana 3 collided with abulk carrier, MV Waily, in Malaysian waters off the coast of Singapore, resultingin an oil spill (“Collision off Singapore,” 2010). The Malaysian-registered tankerMT Bunga Kelana 3, which was ferrying 63,054 tonnes of light crude oil fromBintulu, Sarawak, to Malacca suffered damage to one of its cargo tanks, spillingan estimated 2,000 tonnes of oil into the Strait of Singapore (Basiron, 2010).Despite assurances by the local authorities that utmost efforts were being takento contain the spill, some oil did reach the shores of Johor and Singapore, and thisprompted a public outcry and claims of loss of livelihood by fishermen.

The volume of shipping activity taking place each year in the straits is thoughtto be one of the causes of coral reef developments in the Strait of Malacca beingrecorded as among the lowest in this region (Thia-Eng et al., 2000). The well-being of the mangrove ecosystem along the coast bordering the Strait of Malaccais also threatened due to constant soil erosion caused by shipping traffic and theturbulence engendered (Basiron, 2008). One good example of this is the soilerosion in mangrove vegetation along the coast of the southwestern tip of Johornear Tanjung Piai, which is an area with high shipping transits where the Straitof Malacca converges with the Strait of Singapore (Basiron & Hooi, 2007).

Apart from oil, modern seafaring vessels discharge other types of contami-nants as well, such as butyltin. Butyltin is normally concentrated in areas withsignificant boating activities, ports, and dockyards. The high concentration of thischemical substance could harm marine life, the environment, and human health(Page, Ozbal, & Lanphear, 1995). Shipping may also injure the marine environ-


ment through the introduction of invasive species such as the toxic algaedinoflagellates that originate from a vessel’s ballast water exchange (Bahe et al.,2007). This creature can survive for years in ballast tanks. When introduced tonew environments, it can poison shellfish, which, if then consumed by humans,may be fatal. In addition, shipping also discharges other types of pollutants suchas marine debris, sewage, hazardous and noxious substances, noise emissions,and air pollution (O’Brien, n.d.). These are among the polluting substances thatdamage and deteriorate the marine environment of the straits on a continuousbasis year in, year out.

It is true that currently, there is an ongoing cooperative mechanism scheme9

between the littoral states and the user states in managing the issues of navigationsafety and the control of vessel-source pollution in the straits (Ho, 2009). Never-theless, these developments have been moving rather slowly and have not keptpace with the increasing number of ships that transit the Straits of Malacca andSingapore each year. This is justified by the fact that the 2009 budget for the Aidsto Navigation Fund (the Fund) was US$8 million, but it has managed to raise onlyaround US$5 million, with US$2.5 million coming from the Nippon Foundation(Bateman, 2009b). As shown in Table 2, the amount raised in 2010 was even less,at US$3 million contributed by various governments and other stakeholders ofthe Straits of Malacca and Singapore.

This issue has been consistently raised, resulting in a proposal that the littoralstates consider lodging a complaint to the International Tribunal on the Law ofthe Sea citing the users for violating Article 300 of LOSC10 on good faith andabuse of rights (Basiron, 2007).

Despite the decreasing amount of financial contribution made by the usersto the Fund, however, since 2009, more user states have shown interest in sharingthe burden with the littoral states, and assistance is generally rendered through

Table 2. Contributions Made to the Fund in 2009 and 2010

No. Country/Organization Year Amount (US$) Year Amount (US$)

1 United Arab Emirates(UAE)

2009 100,000 2010 100,000

2 South Korea 2009 83,532 2010 88,2353 India 2009 774,000 2010 —4 Nippon Foundation 2009 2,500,000 2010 1,390,0005 Saudi Arabia 2009 — 2010 100,0005 Middle East Navigation

Aids Service(MENAS)

2009 1,000,000 2010 1,000,000

6 Malacca Strait Council(MSC)

2009 500,000 2010 500,000

7 International MaritimeOrganization (IMO)

2009 50,000 2010 50,000

Total 5,007,532 Total 3,228,235.00

Source: M. R. Ahmad (2010) and “Report of 4th Aids to Navigation by Malaysia” (2010).


the sharing of maritime technology to ensure safer shipping in the Straits ofMalacca and Singapore under the Project Coordination Committee (PCC) admin-istered by the cooperative mechanism (M. R. b. Ahmad & Rozali, 2009).

Given that the straits are projected to accommodate constant increase of ship-ping traffic in the future coupled with the escalating costs of maintenance of aidsto navigation in the straits,11 the cooperative mechanism scheme may not beentirely sufficient to promote sustainable use of the Straits of Malacca and Sin-gapore for international shipping activities. Besides, with more vessels plying thestraits, the question of safety and environmental concerns will become more acutefor the littoral states bordering the Straits of Malacca and Singapore (Hamzah,2008). If this situation continues, it may be difficult in the future to promoteenvironmental sustainability in the waters of the Straits of Malacca and Singapore.

The provisions of the transit passage regime were negotiated when principlesof international environmental law were just beginning to emerge. The frame-work for protection and preservation of the marine environment in the LOSC hasbeen considerably amplified by modern conservation principles and norms suchas the precautionary principle, conservation of biodiversity, sustainable use andthe polluter pays principle since the LOSC was negotiated. Therefore does theright of transit passage remain unqualified? Bateman (2009a) asserts: “The rightof transit passage may be increasingly qualified in the future by the growingtrend among coastal States to introduce measures for the protection of the marineenvironment which impact upon navigation” (pp. 274–275).

Australia has pioneered a new development in state practice on the governanceof straits used for international navigation through its introduction of a compul-sory pilotage regime in the waters of the Torres Strait. This state practice may bean early sign that the assumption that transit passage is an unqualified naviga-tional right for all vessels and aircrafts exercising transit in straits used forinternational navigation has been modified to take into account the environmen-tal responsibilities of both the littoral states and the user states.

Compulsory Pilotage in the Torres StraitThe Torres Strait can be described as the area of water between Cape York

Peninsula in the northern extremity of the Australian continent and the island ofNew Guinea to the south. The strait is about 150 kilometers wide and 200kilometers long and is surrounded by the Arafura Sea on the west and the GreatBarrier Reef and the Coral Sea to the east (Kaye, 1997). Although 150 kilometerswide, it is often said that navigation through the Torres Strait is difficult, as it isdotted by 150 islands and has many fringing reefs within it, hence making theTorres Strait relatively shallow (Roberts, 2006). As a meeting place of waters of thePacific Ocean and the Indian Ocean, the area has a highly variable tidal regime,which further complicates navigation (Kaye, 1997). International shipping passesthrough the Torres Strait via the Prince of Wales Channel, a narrow waterway thatis only 800 meters wide at its narrowest point.

Before the LOSC came into force in 1994, both Papua New Guinea (PNG) andAustralia had signed the Torres Strait Treaty, which defined the maritime bound-aries between both littoral nations (“Treaty Between Australia and the Indepen-dent State of Papua New Guinea,” 1985). The treaty acknowledges the freedom of


navigation and overflight of all vessels through the Torres Strait in Article 7 butdoes not regulate the passage regime through the strait. As the Torres StraitTreaty was a maritime boundary delimitation treaty and not a long-standingtreaty regulating passage through the strait, the navigational regime through theTorres Strait is governed by Part III of the LOSC. As a strait that connects one partof an exclusive economic zone (EEZ) or high seas and another part of an EEZ orthe high seas, the transit passage regime is applicable in the Torres Strait.

As shown in Map 2, there are two routes in the Torres Strait: vessels that wishto call at any East Australian port have to navigate through the Inner Route of theGreat Barrier Reef, and the ones that intend to travel to any other South Pacificport would have to sail via the Great North East Channel and enter the OuterRoute of the Great Barrier Reef at the Coral Sea from Bramble Cay. As far asinternational navigation is concerned, transit passage only applies to the routefrom the Arafura Sea through the Torres Strait via the Great North East Channelto the Coral Sea, as this part of the strait connects one part of the EEZ or high seasto another (Bateman, 2009a).

The Torres Strait is a waterway of considerable significance in the Oceaniaregion. Due to increasing shipping traffic and the higher risks of maritime acci-dents in the Torres Strait, Australia contends that the sensitive ecosystem of thestrait could be damaged by uncontrolled international shipping. Prior to theimposition of compulsory pilotage in the Torres Strait, there had been a decreasein the number of vessels that engaged pilots when navigating through the water-way. Australia was concerned that if a maritime casualty took place in the TorresStrait, the environmental implications would be disastrous. Successive govern-ments have been concerned about ensuring that the tragic grounding of OceanicGrandeur in the Torres Strait in March 1970 (“Major Oil Spills,” n.d.) and of BungaTeratai Satu on Sudbury Reef within the Great Barrier Reef region in 2001 (Glover,2004) should not happen again. Fortunately, the grounding of the latter did notresult in any discharges from the vessel, but it did affect the well-being of the reef.

Map 2. Shipping routes through the Torres StraitSource: Google Maps (http://maps.google.com.my/maps?hl=en&tab=wl).


Before compulsory pilotage was introduced, a study was conducted by DetNorske Veritas, and the results showed that the imposition of such a regimewould reduce the risk of a collision by 30% and of a powered grounding byabout 32% (“Review of Ship Safety,” 2001). In 2004, Australia commenced astudy to analyze the level of risk to the environment and the risk of collision inthe Torres Strait. It discovered that pilotage may reduce the risk of grounding inthe Torres Strait by 45% and collisions by 57%, and it would reduce the possi-bilities of groundings by 54% and collisions by 67% in the Prince of WalesChannel (McCarthy, n.d.). Australia has a long history of providing pilotage inthe Torres Strait that goes back to the 19th century (Bateman & White, 2009). In2003, Australia and PNG submitted to the IMO a proposal to extend the par-ticularly sensitive sea area (PSSA)12 status on the Great Barrier Reef to the TorresStrait. After much deliberation, the IMO approved the extension of the GreatBarrier Reef PSSA to the Torres Strait in Marine Environmental Protection Com-mittee (MEPC) Resolution 133(53) on July 22, 2005 (Beckman, 2007). Followingapproval by the IMO Assembly in Resolution MEPC 133(53), which revokedResolution MEPC 45(30), Australia issued its Marine Notice 8/2006 advising allvessels of 70 meters of length or more and all loaded tankers and liquefied gascarriers to engage a pilot while navigating through the pilotage area of theTorres Strait (“Marine Notice 8/2006,” 2006). As a vessel approaches the TorresStrait, it will be interrogated by the automatic identification system (AIS) shorestations. These AIS stations identify each passing vessel, and if the vessel ignoresthe requirement to take on a pilot, it will then be identified and subject to legalproceedings when it enters any Australian port in the future (Bateman, 2009a).Ever since the imposition of the compulsory pilotage regime in the Torres Strait,the number of casualties has been kept to a minimum. This regime is achievingits objective of improved protection for the sensitive and pristine marine habi-tats of the Torres Strait region.

Australia has been criticized by a number of maritime nations for imposingcompulsory pilotage in the Torres Strait. The main argument against thescheme or measure is that it is not consistent with the concept of transitpassage through straits used for international navigation enshrined in the LOSC(Beckman, 2007). Second, the imposition of this scheme creates an unwarrantedprecedent that may be followed by other states bordering straits and result inrestrictions on vessels transiting these straits. In rebutting these arguments,Australia has asserted that compulsory pilotage does not impede transitpassage through the Torres Strait, but instead it facilitates safe and environmen-tally responsible navigation through the difficult waters of the Torres Strait. Thefee imposed for pilot engagement is not a levy imposed on vessels that transitthe Strait, but rather a fee for specified services provided for the transitingships (Bateman, 2009a). On the second issue, Australia has contended that thiswould not set a precedent, as different straits have different characteristics andin order to follow Australia’s footsteps, those states bordering straits wouldfirst have to designate their maritime areas as PSSAs. PSSA designation is noteasy, as it has to go through various committees within the IMO to be approvedand ultimately endorsed. Despite these criticisms, Australia has retained com-pulsory pilotage in the Torres Strait.


Navigational Hazards in the Straits of Malacca and SingaporeLike the Torres Strait, the Straits of Malacca and Singapore are also important

maritime choke points. The Torres Strait carries around 3,000 vessels of morethan 50 meters each year (“The Torres Strait,” 2010), considerably less than theStraits of Malacca and Singapore. The volume of shipping traffic in the Straits ofMalacca and Singapore is much more staggering. Some 150–200 ships transit thestraits each day, ultimately accumulating to more than 70,000 ships annually. Thisnumber continues to increase every year, although estimates vary (Dyke, 2009).A study by the secretariat of the IMO found that approximately 60,000 vesselstransit the straits each year (Beckman, 2009a). On the other hand, Japanesefigures in 2004 contended that around 94,000 vessels of more than 100 grosstonnes pass through the straits annually.13

Despite being the nearest and the most convenient route connecting the MiddleEastern oil producers to its major consumers of East Asia, the Straits of Malaccaand Singapore are not entirely safe for navigation. The waters of the straits arerather shallow, and the water level varies with the changing of the tides. More oftenthan not, the seabed also shifts, creating serious risk of groundings (Dyke, 2009).Due to this, in certain areas of the straits, the IMO has recommended a maximumdraught of 19.8 meters for passing ships (Zubir, 2005). The straits narrow atdifferent points along their length, with the narrowest point in the Strait ofSingapore being only 3.2 kilometers in breadth, hence making navigation inthe straits more intricate (George, 2008). Accidents and maritime collisions in theStraits of Malacca and Singapore are also influenced by other factors, such as theheavy density of traffic, poor visibility during squalls, numerous shoals and banksthat often change in location along the waterways, confusing crossing patterns bysmall domestic craft, and several wrecks in certain localities along the straits.

These facts show that navigation in the Straits of Malacca and Singapore maynot be as easy as it appears. Due to these and other navigational hazards, therewere 888 accidents reported to have occurred in the Straits of Malacca andSingapore in the 25-year period of 1978–2003 (Basiron & Hooi, 2007). Between theyears 2001–2007, the number was around 237. Table 3 lists some of the worstspills in the straits.

The marine environment of the straits will be the inevitable victim should suchmaritime casualties continue to take place along the waterway. As such, like theTorres Strait, suggestions have been made to designate the Straits of Malacca andSingapore as a PSSA to further protect and preserve the marine environment ofthe straits (Dyke, 2009; Rusli, 2011a; Unlu, 2006).

Particularly Sensitive Sea AreasTo date, there are 11 PSSAs in the world, with the Torres Strait being the only

strait used for international navigation that has been designated as a PSSA. APSSA is an area that needs special protection through action by the IMO becauseof its significance for recognized ecological or socioeconomic or scientific reasonsand that may be vulnerable to damage by international maritime activities (“Par-ticularly Sensitive Sea Areas,” 2002). An application to the IMO for designation ofa PSSA and the adoption of associated protective measures (APMs) or anyamendment(s) to them may be submitted only by a member government of the


IMO (“Revised Guidelines,” 2006). APMs are essential parts of a PSSA in whichthe APMs define the means by and the extent to which a PSSA is protectedagainst environmental threats posed by international shipping activities (Kachel,2008). A coordinated proposal should be formulated where two or more govern-ments have a common interest in that particular area. Resolution A.982 (24), or itsfull name, Revised Guidelines for the Identification and Designation of PSSAs (2006),states that

An application for PSSA designation should contain a proposal for an associatedprotective measure or measures aimed at preventing, reducing or eliminating thethreat or identified vulnerability. Associated protective measures for PSSAs arelimited to actions that are to be, or have been, approved and adopted by IMO, forexample, a routeing system such as an area to be avoided.

With the Torres Strait PSSA as an example, it is clear that pilotage may fall underthe requirement provided by Resolution A.982 (24), as it is a measure that hasalready been adopted by the IMO. The issues involving pilotage schemes fornavigating vessels in the Straits of Malacca and Singapore have been deliberatedby the littoral states and the stakeholders of the straits, with proposals made tointroduce a scheme of voluntary pilotage in the straits.

The Proposed Voluntary Pilotage Scheme in the Straits of Malaccaand Singapore

Currently, pilotage services are available and offered by major ports along theStraits of Malacca and Singapore. Pilotage is made compulsory when ships areleaving and entering port limits. But pilotage has never been made compulsory

Table 3. Selected Oil and HNS Spill Incidents in the Straits of Malaccaand Singapore

Date Vessel nameType of oiland HNS

Quantity ofspillage(barrels) Location and cause

1/6/1975 Showa Maru Crude 54,000 Singapore Strait/grounding

7/12/1978 Tadotsu Crude 293,000 Malacca Strait(Dumai)/ unknown

9/20/1992 Nagasaki Spirit andOcean Blessings

Crude 100,000 Malacca Strait/collision

10/15/1997 Evoikos and OrapinGlobal

Crude 175,000 Singapore Strait/collision

5/21/1999 Sun Vista Fuel oil 14,000 Malacca Strait/ sinking10/3/2000 Natuna Sea Crude 49,000 Singapore Strait/

grounding6/13/2001 Indah Lestari Phenol 89 Johor Strait/ sinking5/25/2010 MV Waily and MT

Bunga Kelana 3Light crude oil 18,000 Singapore Strait/

collision

Sources: Basiron and Hooi (2007) and Green and Hayward (2010).


for ships navigating the straits. Nevertheless, since 1977, vessels are recom-mended to take on a pilot when navigating through critical areas within thestraits (Leifer, 1978). Due to fear of future casualties, there have been suggestionsto intensify the usage of a pilotage system in the Straits of Malacca and Singapore.The pilotage issue was discussed at the IMO Singapore Meeting on the Straits ofMalacca and Singapore in 2007 (Wilkins, 2007). During the meeting, consider-ation was given to establishing a pilotage user group (PUG) for the Straits ofMalacca and Singapore. Such a group has been established in other parts of theworld. For example, a PUG was formed in Denmark with the aim to find ways offurther enhancing the safety of navigation through the entrances to the Baltic Sea(“Danish Pilotage,” 2007). The Danish PUG attempts to create an open, transpar-ent dialogue between pilotage service providers and users in order to ensureoptimal pilotage services in general and to encourage the use of pilots for shipsnavigating through the entrances to the Baltic Sea.

The issue of pilotage came into the limelight again at the 2008 InternationalSymposium of Safety and Protection of the Marine Environment in the Straits ofMalacca and Singapore (the Symposium) in Kuala Lumpur (Djalal, 2008). Issuesrelating to a pilotage system in the Straits of Malacca and Singapore were raised,including

(a) whether it would be compulsory or voluntary;

(b) whether it would be employed in the TSS; and

(c) whether it would be limited to port entry only.

These issues were again discussed during the 33rd TTEG meeting in Kuching,Malaysia, in October 2008 and were further discussed at the subsequent TTEGmeetings in Singapore and Yogyakarta in 2009 and 2010, respectively. Duringthe 34th TTEG meeting in Singapore in 2009, the littoral states agreed on theproposed application of voluntary pilotage services (VPS) for vessels navigatingthe Straits of Malacca and Singapore. The littoral states also decided to preparethe draft revised guidelines for the VPS that would later be circulated among thelittoral states and the IMO for comments and amendments. Malaysia had circu-lated the revised guidelines in November 2009 (The 35th Meeting of the TripartiteTechnical Experts Group, 2010).

In the 35th TTEG meeting in Yogyakarta, Indonesia, the issue pertaining tovoluntary pilotage was discussed, and Indonesia pointed out that due to theincreasing number of vessels transiting the straits every year, there is a need tosynchronize the standard guidelines to the existing littoral states’ references onthe qualifications of straits pilots to ensure sustainable implementation of thisregime in the future. It was also agreed in the 35th TTEG meeting that more timebe given to finalize the revised guidelines for the application of voluntary pilot-age, and a joint paper on this will be drafted and sent to the IMO after the littoralstates have reached an agreement on the revised guidelines (The 35th TripartiteTechnical Experts Group (TTEG) Meeting, 2010).

As the proposed VPS is not compulsory, it may be implemented outside theregime of the PSSA. Nevertheless, given that the littoral states are now develop-ing a VPS scheme and that the straits will be more congested, making them more


navigationally difficult in the future, it may not be entirely impossible for thelittoral states of Malaysia, Singapore, and Indonesia to follow in the footsteps ofAustralia and PNG to impose a compulsory pilotage system in the Straits ofMalacca and Singapore. It is therefore crucial to examine the potential legal andpolitical implications that may arise out of such an implementation.

The Proposed Straits of Malacca and Singapore PSSA: Legal andPolitical Implications

The Straits of Malacca and Singapore are waterways of environmental signifi-cance and are rich in biodiversity (Ibrahim, 2008). The view has been expressedthat the Strait of Malacca as a whole would not qualify for designation as a PSSA,but only a specifically defined area of the waterway that is in need of specialprotection (Beckman, 2004). Based on the criteria that need to be fulfilled for aPSSA designation, it would not be impossible for both straits to qualify as a PSSA,as they both have significant ecological or socioeconomic or scientific value thatmay be vulnerable to damage by international maritime activities such as ship-ping movements and discharges of harmful substances ((Basiron & Hooi, 2007;Hooi, 2008; Malek, 2011). With the steady increase in shipping traffic thesewaterways are facing in years to come, the marine environment of these straitswill be in jeopardy if no additional protective measures are taken (Rusli, 2011b).

Should Malaysia, Indonesia, and Singapore, as the three littoral states of theStraits of Malacca and Singapore, agree to submit a PSSA proposal to the IMO, asrequired by Resolution A.982 (24), the submission is likely to contain proposedmeasures for the application of compulsory pilotage, which in this case is thesuggested APM for the straits. This APM would fulfill the requirement of Reso-lution A.982 (24), as it is an APM that has been previously approved by the IMOin its application in the Torres Strait PSSA. Prior to submission of such a proposal,it would also be prudent to carry out a preliminary study on the feasibility of theapplication of compulsory pilotage in the Straits of Malacca and Singapore. Whensubmitted to the IMO, this application is likely to be submitted to three commit-tees in the IMO: the MEPC, the Legal Committee, and the Subcommittee on Safetyof Navigation (NAV Subcommittee) of the Maritime Safety Committee (Beckman,2007). These committees will review, evaluate, and assess the proposed APM on itslegality under LOSC, the practicability and feasibility of its application, andwhether it would assist the littoral states in protecting and preserving the marineenvironment of their maritime space. If the application is successful, the MEPCwould then issue a resolution recommending the application of the proposedAPM in the maritime area that has been designated as a PSSA. Based on theAustralian experience with the Torres Strait, the MEPC would only recommendthe APM without stating whether it is mandatory or otherwise. As contended byBateman (2009a): “It is not in the nature of the IMO to formally approve trafficmanagement schemes but rather to recommend their acceptance” (276).

Theoretically, based on these facts, it is likely that the Straits of Malacca andSingapore could be designated as a PSSA or a number of PSSAs; however, theapplication of the proposed APM, particularly a compulsory pilotage scheme, islikely to be contentious. There would be many controversial legal and politicalimplications associated with such an application.


Singapore and the United States of America were among the states that per-sistently protested Australia’s implementation of compulsory pilotage in theTorres Strait, contending that it undermined the transit passage regime under theLOSC and was inconsistent with the decisions reached in the IMO (Seng, 2006).Singapore has indicated its intention to bring Australia to international disputeresolution over this issue, but this has not occurred yet (Bateman & White, 2009).The fundamental position taken by Singapore is that it is against any acts thatcould jeopardize, hamper, or impede freedom of navigation. Based on Sin-gapore’s articulated position in relation to the issue of compulsory pilotage in theTorres Strait, though Singapore may probably agree that both the Straits ofMalacca and Singapore could be designated as a PSSA, it nevertheless is likely toprotest against the compulsory pilotage regime as the proposed APM. If theStraits of Malacca and Singapore are treated separately and not as one waterway,then the scenario may be different.

As far as the Strait of Malacca is concerned, both Malaysia and Indonesia arelittoral states of the strait. Both countries were steadfast in declaring that theStraits of Malacca and Singapore are straits that are significant for internationalnavigation and not international straits, whereas Singapore merely acknowl-edged this in the 1971 Joint Statement14 without articulating its own view on theissue (Djalal, 2004). This was because these countries had different national inter-ests; Malaysia and Indonesia at that time were more focused on the issue ofsovereignty, whereas Singapore, as a bustling international port, was morefocused on ensuring freedom of navigation for merchant vessels. With the con-clusion of the Third United Nations Law of the Sea Conference (UNCLOS III) andthe adoption of the LOSC in 1982, Malaysia, Singapore, and Indonesia ultimatelyagreed with the provisions on transit passage for all vessels in straits used forinternational navigation in Part III of the LOSC. Nevertheless, as a condition forits acceptance and ratification of the LOSC, Malaysia proposed Article 23315 as aguarantee that the marine environment of such straits could still be protected andsafeguarded despite having responsibilities to accommodate free navigation to allvessels (Nordquist, 1991). Because of this, many regard Article 233 as Malaysia’sbrainchild (George, 2008).

In recent times, Malaysia, Indonesia, and Singapore have continued to articu-late their positions on environmental issues relating to the Straits of Malacca andSingapore.16 Singapore is more focused on providing better aid to navigationalinfrastructures to promote safer shipping for transiting vessels. As an entrepôtstate, liberal navigational regimes such as transit passage are imperative to Sin-gapore’s economic interest and survival (Beckman, 2006). Malaysia and Indone-sia, on the other hand, apart from acknowledging the importance of safenavigation, have also made other calls, which to a certain extent may placeconstraints on navigation through the Strait of Malacca in the interest of envi-ronmental protection. These include imposing tolls on navigating ships(Purwaka, 1998), capping the number of vessels transiting the strait (Ibrahim &Shahryari, 2008), and also proposals for the application of pilotage (Djalal, 2008).

Based on these facts, it is clear that Malaysia and Indonesia, as compared toSingapore, have a lengthy history of seeking measures to protect and preservethe marine environment of the straits, notwithstanding the fact that suchattempts may indirectly constrain passage rights. It is true that the littoral states


have in the 1971 statement agreed to treat the two straits as a single strait. In fact,until today, cooperation between the littoral states, the users, and the IMO hasworked out based on this agreement.17 Nevertheless, the 1971 statement wasnever meant to be a treaty, but it was a joint statement of agreement made by thelittoral states at a time when the density of shipping traffic was not as high as itis now. It has now been 40 years since the 1971 statement was made, and con-sidering the fact that the amount of shipping traffic is going to increase, it maynot be legally unfeasible to amend the agreement to the 1971 statement in treatingboth straits as separate straits as far as PSSA designation is concerned. If the fifthstatement (see note 14) on the application of innocent passage in the Straits ofMalacca and Singapore could be changed and replaced with the transit passageregime when the LOSC came into force, the general agreement that the straits areto be treated as a single strait could also be changed under the pretext of theproposed PSSA designation. Furthermore, the International Hydrographic Orga-nization itself defines both the Straits of Malacca and Singapore as two separatestraits and hydrographically, they were never regarded as one single strait(“Limits of Oceans and Seas,” 1953).

Taking into account that Singapore may refuse to apply for the designation ofthe Strait of Singapore as a PSSA, Malaysia and Indonesia could themselvessubmit proposals to the IMO with a view to designation of the Strait of Malaccaas a PSSA with compulsory pilotage as a proposed APM. As with the TorresStrait, where compulsory pilotage only applies in the most critical area of thewaterway, Malaysia and Indonesia could also suggest and propose the applica-tion of pilotage in the busiest part of the strait, particularly between One FathomBank and Tanjung Piai. The type and size of vessels that are subjected to thecompulsory pilotage regime could also be defined in the PSSA proposal to theIMO. Both countries could justify the imposition of compulsory pilotage basedon the grounds already mentioned above in the section “Navigational Hazardsin the Straits of Malacca and Singapore.” Assuming that the IMO accepts theproposal, Malaysia and Indonesia could also consider following Australia’sdomestic initiative of imposing penalties on any ships that failed to engage apilot while transiting the straits should they in the future enter either Malaysianor Indonesian ports rather than obstructing the ship’s passage as it transits thestrait.

In view of the critical nature of the Strait of Malacca and the volume of shippingtraffic passing through it, there is likely to be considerable controversy over theproposed plan to introduce compulsory pilotage in the strait. First, nations that areagainst such a plan would contend that Malaysia and Indonesia have breached theprovisions of the LOSC, which allows for the liberal navigational regime of transitpassage in straits used for international navigation. Opposing states may arguethat Malaysia and Indonesia have violated Articles 38(1) and 44 of the LOSC,which prohibit littoral states from hampering transit passage.

Second, they would assert that since the Strait of Malacca is indispensible inregulating global trade, the imposition of compulsory pilotage would not onlyimpede passage, but it would also unreasonably increase shipping costs, asvessels and ships would have to employ pilots while transiting the strait. It couldbe argued that increases in the cost of shipping would adversely affect theworld’s economy. Table 4 shows the average operating costs of a VLCC.


Although a proper study has yet to be conducted to determine the impacts ofthe introduction of compulsory pilotage in the Straits of Malacca and Singaporeon freight rates, data from Table 4 show that such an application would incurmore expenses on the average operating costs of a VLCC, and this would ulti-mately affect the global international trade that moves via the straits.

Third, from a practical perspective, could Malaysia and Indonesia provide aguarantee that the number of pilots would be sufficient for the Strait of Malacca,which accommodates almost 80,000 ship transits per year? These vessels couldnot expect their voyage to be impeded just because pilots could not be madeavailable; this would clearly go against the spirit of the LOSC.

Fourth, in justifying its act to validate the usage of compulsory pilotage in theTorres Strait, Australia argued that no other strait routinely used in the world hasa long history of pilotage like the Torres Strait does. The Strait of Malacca, on theother hand, does not possess a long history of pilotage, as it was only seriouslydiscussed as a potential ship routing and safety measure in 1977 (Leifer, 1978).Therefore, user states may assert that compulsory pilotage should neither beintroduced nor imposed on ships that transit the Strait of Malacca.

Fifth, cooperative mechanisms in both the Straits of Malacca and Singapore aredoing well, with more states besides Japan agreeing to share the burden ofprotecting and preserving the marine environment of both straits. At the 2006Kuala Lumpur IMO meeting, China and the United States expressed interest inparticipating in projects related to environmental protection and safety of navi-gation matters in the straits. At the 2007 IMO meeting in Singapore, South Koreaand the UAE announced that they would contribute to the fund. Germanyrevealed its intention to find ways to contribute to the management of the marineenvironment of the straits (Beckman, 2009a). These developments show that asfar as the Straits of Malacca and Singapore are concerned, compulsory pilotage islikely to face political opposition and may not be the ultimate solution to thelittoral states’ environmental protection dilemma.

Table 4. VLCC Operating Costs Based on a Vessel With a Capital Cost ofUS$68 Million and a Life of 25 Years

Elements Running Cost (US$)

Manning, including victualling 892,000Lubes and stores 386,000Spares, Repair & Maintenance 263,000Drydocking (annualized cost) 688,000Insurance 582,000Administration 110,000Miscellaneous 65,000Total 2,986,000

Source: Marlow & Gardner (2006).Notes: Running costs per annum = US$2,986,000.Capital costs per annum = US$4,825,000 (calculated on a 5% rate of return over 25 years on an initialcost of US$68 million).Total operating cost per annum = US$7,811,000.


Possible Rebuttals by the Littoral StatesMalaysia and Indonesia are, however, not lacking in arguments to rebut these

potential criticisms and opposition to the compulsory pilotage plan. On the firstissue, both states may assert that the imposition of compulsory pilotage in theStrait of Malacca would not impede transit passage, but on the other hand wouldfacilitate safe and environmentally responsible passage of the straits. For narrowparts of the strait that are burdened with high navigational traffic, compulsorypilotage would be needed in order to prevent future mishaps and casualties.Taking the Torres Strait example, there are parallels with some parts of the Straitof Malacca, as both are waterways with many navigational hazards.

It is a true assertion that cooperative mechanisms between the littoral statesand the users have gone through positive developments since 2008. Neverthe-less, these developments have been moving rather slowly and they have not keptpace with the increasing number of ships that sail the Straits of Malacca andSingapore each year, as far as contributions made to the Fund are concerned. Theresult of the assessment survey of the critical aids to navigation in the straitsconducted in 2008 revealed that the annual average cost of replacement andmaintaining the aids to navigation is about US$5.5 million (Report of 4th Aids toNavigation, 2010).

In 2009, as enumerated in Table 2, only US$5 million was raised, and theamount raised was even lower in 2010 with the US$3.2 million that managed tobe collected. In some instances, the littoral states have had to bear the costs ofmaintenance themselves. With less funds being collected every year, it will bedifficult for the littoral states to ensure that aids to navigation facilities installedalong the straits are well maintained and functioning accordingly. Therefore,the cooperative mechanism could not entirely be relied upon, and conse-quently, compulsory pilotage, given its success in the Torres Strait, may be seenby the littoral states, particularly Malaysia and Indonesia, as a potential solu-tion to further preserve and protect the marine environment of the Strait ofMalacca by reducing the risks of maritime accidents. There is relatively littledoubt that efficient pilotage services would help to increase safety of passage.In a study conducted on pilotage, only around 18% responded with the opinionthat pilotage would not make much of a difference in contributing to theimprovement of safety in the Straits of Malacca and Singapore (Karma & Woon,1998).

It is more difficult for Malaysia and Indonesia to rebut the other opposingarguments. Indeed, in comparison with the Torres Strait, the Strait of Malaccais heavily relied upon to link the East and the West. The volume of shippingtraffic is also 37.5% higher than that of the Torres Strait each year. The impo-sition of compulsory pilotage would inevitably increase global shipping costs.The Strait of Malacca does not have a long history of pilotage. Pilotage is quitenew to the strait and has only been discussed seriously since 1977. The issue ofsufficiency of pilots is also worth considering. With the high volume of trafficpassing through the strait, could Malaysia and Indonesia be able to provideenough pilots? Nonetheless, prior to preparing the Strait of Malacca for the


imposition of compulsory pilotage, it is anticipated that both the littoral statesof the strait have made proper arrangements to meet the future demands ofpilots (Rusli, 2011a).

ConclusionThe transit passage regime in Part III of the LOSC has provided a very liberal

form of navigation for all vessels to sail through straits used for internationalnavigation. This right cannot be impeded or hampered by the states borderingstraits. Moreover, these states possess very limited enforcement powers to takeaction against recalcitrant ships that may pollute or threaten to pollute the marineenvironment of their territorial straits. Recognizing this impediment, Australiahas proposed to the IMO the designation of the Torres Strait as a PSSA withcompulsory pilotage as an APM, and this designation was approved. Compul-sory pilotage has been implemented in the Torres Strait since 2006. Despitereceiving some criticism from Singapore and the United States in particular, theimposition of compulsory pilotage has assisted in improving the protection andpreservation of the sensitive ecosystem of the Torres Strait. Like the Torres Strait,the Straits of Malacca and Singapore are also bound by the provisions of theLOSC. The littoral states of Malaysia, Indonesia, and Singapore are prohibitedfrom hampering or impairing the transit passage of all vessels through the Straitsof Malacca and Singapore.

Singapore, along with the United States, has strongly opposed the applicationof compulsory pilotage in the Torres Strait. Based on this fact, it could be assumedthat Singapore would not agree with a proposal to designate the Strait of Sin-gapore as a PSSA with compulsory pilotage as its APM. Nonetheless, Singaporeis not a littoral state as far as the Strait of Malacca is concerned. All parts of theStrait of Malacca, especially the TSS areas, fall exclusively within the territorialseas of Malaysia and Indonesia. Being heavily navigated by ships every year,Malaysia and Indonesia have always raised their concerns about the adverseimpacts of shipping on the Strait of Malacca. Should Malaysia and Indonesiaconsider following in Australia’s footsteps and propose the designation of theStrait of Malacca as a PSSA, applying compulsory pilotage as its APM, this wouldundoubtedly be followed by criticism from user states. Given the potential legaland political implications that may arise out of such an implementation, thisproposed measure might experience complication when it is deliberated anddiscussed at the IMO level.

It would be quite difficult to impose compulsory pilotage in both the Straits ofMalacca and Singapore, particularly as these straits possess high traffic density.Compulsory pilotage imposition in the straits would injure the global economy,as shipping costs would inevitably rise. Furthermore, many would also arguethat the cooperative mechanisms already engaged between the littoral states andthe users have been developing quite well. Initially, only Japan, MENAS, and theUAE had been very supportive, particularly to the Fund. Nevertheless, since2009, more and more states and organizations have contributed to the Fund,namely South Korea, Saudi Arabia, and the IMO. Other states such as the United


States, Australia, China, and India have indicated support by showing theircommitments to participate in projects on maritime safety organized by the PCC,which is still developing.

Based on the current shipping trends, the Straits of Malacca and Singaporemay remain as potential candidates for the designation of a PSSA; however,compulsory pilotage may possibly not be a suitable APM at the moment. As thecooperative mechanism is seen by many as the best way of promoting burdensharing, the littoral states and the users should continue to work together underthe cooperative mechanism to protect and preserve the marine environment ofthe straits, particularly in making more voluntary contributions toward the Fund.Furthermore, the proposed VPS should also be supported and implemented inthe straits to cope with the heavy shipping traffic plying them. Should the VPSultimately become successful, only then might it be feasible to consider introduc-ing a Torres Strait–like pilotage system in the Straits of Malacca and Singapore.Indeed, it is an inevitable fact that the straits will be more congested in the future,hence making them more difficult to be navigated. In these circumstances, theimposition of compulsory pilotage may not be entirely impossible in the waters ofthe Straits of Malacca and Singapore in future years.

Notes1Article 38(1) of the LOSC expounds that transit passage is a right enjoyed by all ships and aircraft

transiting through straits and this right shall not be impeded.2Article 25(3) of the LOSC reads, “The coastal State may . . . suspend temporarily in specified areas

of its territorial sea the innocent passage of foreign ships if such suspension is essential for theprotection of its security” (http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm).

3See Article 43(a) (b)—LOSC (1982).4Straits states can take appropriate enforcement measures against recalcitrant vessels that have

violated regulations formulated under Article 42(1) (a) & 42(1)(b) and this violation has caused or isthreatening to cause major damage toward the marine environment of the straits. This is furtherreiterated in Article 233 (Part XII) of the LOSC.

5See Article 42(2)—LOSC (1982).6As far as laws and regulations relating to the prevention, reduction, and control of pollution in the

Straits of Malacca and Singapore are concerned, the littoral states may enact national pollution controllaws by giving effect to accepted international regulations such as the International Convention forthe Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto(MARPOL 73/78). Malaysia, Singapore, and Indonesia are parties to MARPOL but not to all of itsannexes.

7See Article 41(3), Article 42(1)(a) and Article 42(1) (b)—LOSC (1982).8See Article 39(2)(a) and (b)—LOSC (1982).9The cooperative mechanism reflects the success in enhancing cooperation between the littoral

states and the user states, which is supported by the LOSC itself in Article 43. The scope of thecooperative mechanism focuses on three components, namely the Cooperation Forum for dialogueand discussion, PCC on the implementation of projects in cooperation with sponsoring users/stakeholders, and Aids to Navigation Fund to receive direct financial contributions for renewal andmaintenance of aids to navigation (see Beckman, 2009a).

10Article 300 of the LOSC states that “State Parties shall fulfill in good faith the obligations assumedunder this Convention and shall exercise the right, jurisdiction and freedoms recognised in thisConvention in a manner which would not constitute an abuse of right” (http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm).

11In 2009, the Marine Department of Peninsular Malaysia reported that the cost for maintenance,repair, or new building to aids to navigation was at US$1,061,066. In 2010, the expenditures increasedup to US$4,085,315 (Cooperative Mechanism, 2011).

12The Great Barrier Reef was identified as a PSSA through MEPC Resolution 44(30), and compul-sory pilotage was introduced in the Great Barrier Reef through MEPC Resolution 45(30) (“List ofMEPC Resolutions,” 2009).


13The discrepancy in the numbers may occur due to the size of vessels being monitored. As far asSTRAITREP is concerned, only vessels of 300 gross tonnage and above are required to report to thissystem.

14The 1971 Joint Statement reads thus: “(i) the three Governments agreed that safety of navigationin the Straits of Malacca and Singapore is the responsibility of the coastal States concerned; (ii) thethree Governments agreed on the need for tripartite co-operation on the safety of navigation in thetwo straits; (iii) the three Governments agreed that a body for co-operation to co-ordinate efforts forthe safety of navigation in the Straits of Malacca and Singapore be established as soon as possible andthat such body should be composed of only the three coastal States concerned; (iv) the three Govern-ments also agreed that the problem of the safety of navigation and the question of internationalisationof the straits are two separate issues; (v) the Governments of the Republic of Indonesia and ofMalaysia agreed that the Straits of Malacca and Singapore are not international straits, while fullyrecognising their use for international shipping in accordance with the principle of innocent passage.The Government of Singapore takes note of the position of the Governments of the Republic ofIndonesia and of Malaysia on this point; (vi) on the basis of this understanding, the three Govern-ments approved the continuation of the hydrographic survey” (Joint Statement of the Governments ofIndonesia, Malaysia and Singapore, 1971, cited in Leifer, 1978, p. 204).

15Article 233 of the LOSC states, “If a foreign ship . . . has committed a violation of the laws andregulations referred to in Article 42, paragraph 1(a) and (b), causing or threatening major damage tothe marine environment of the straits, the States bordering the straits may take appropriate enforce-ment measures and if so shall respect mutatis mutandis the provisions of this section” (ResolutionMSC.73 (69), 1998, p. 2).

16In the Singapore Statement on Enhancement of Safety, Security and Environmental Protection inthe Straits of Malacca and Singapore in 2007, Singapore expressed its concern over the protection andpreservation of the marine environment of the Straits of Malacca and Singapore but at the same timeacknowledged that navigation through the straits cannot be hampered. Singapore, together withMalaysia and Indonesia agree to enhance the existing cooperative mechanism to further protect andpreserve the marine environment of the straits and to promote safe navigation for navigating vessels(see “Singapore Statement,” 2007).

17For example, the TTEG on safety of navigation and control of pollution in the Straits of Malaccaand Singapore, which was established in 1975, was a product of the 1971 statement (Theng, 1998).

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