The 5th International Workshop of The South China Sea:

Cooperation for Regional Security and Development, Ha Noi,

Vietnam,

THE DOC AND ITS IMPLEMENTATION: A MALAYSIA’S PERSPECTIVE

“COMBATTING TRANSNATIONAL CRIME”

Captain Martin A. SEBASTIAN, Royal Malaysian Navy

Fellow and Centre Head, Centre for Maritime Security and Diplomacy

Maritime Institute of Malaysia (MIMA)

Abstract:

The 2002 ASEAN-China Declaration of the Conduct of Parties (DOC) is the first formal document signed by

China and ASEAN to calm the rough waters of the South China Sea, so to speak. Among others, the DOC

identified actionable measures that could mitigate the tension on the disputes concerning the South China

Sea. Throughout it’s 11 years existence, the document has drawn criticisms targeting it’s value and

implementation based on the many incidents that had occurred in the South China Sea affecting all parties.

The many accusations hurled against it’s implementation has been directed to the intent of the document

which were designed for conflict prevention, confidence building and functional cooperation. The Paper

revisits the document to discuss on functional cooperation in combating transnational crime. It explores on

the initiatives taken to date in the ASEAN-China context on combating transnational crime and examines on

its achievements. It reasons that the land and sea initiatives to combat transnational crime needs to be

addressed holistically. In the evolution of maritime crime, the Paper calls for a revolution in the methods

required to address the menace nationally and regionally.

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Introduction: The DOC

The DOC was signed on 4 November 2002 during the Eighth ASEAN Summit in

Phnom Penh1, Cambodia with great expectations. Statements supporting the

document were made by the many officials who signed the document,

optimistic, that the document will pave the way for mutual trust and

more constructive measures to harness political discourse between China

and ASEAN.

The DOC, a two page document seems to have it’s foundations on the 1992

Declaration and 1995 Sino-Philippine code of conduct2 with many

parallels. In revisiting the DOC, one notices that the first four

paragraphs of the DOC is directed towards conflict prevention, and, as

one reads into the fifth paragraph, confidence building measures are

explored, while paragraph six mentions the functional cooperation

areas3. Since the focus on the DOC has always been the first four

paragraphs as it is directly proportional to the immediate needs towards

resource protection and development in the South China Sea, one wonders

whether much attention were given to the fifth and sixth paragraphs. The

paragraphs outlines that pending the settlement of disputes, the

confidence building measures and functional cooperation activities could

be carried out by States. On the functional cooperation activities, it

outlines them as being marine environmental protection; marine

scientific research; safety of navigation and communication at sea;

search and rescue operation; and, combating transnational crime,

including but not limited to trafficking in illicit drugs, piracy and

1 www.asean.org2 ibid3 ibid

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armed robbery at sea, and illegal traffic in arms.

Throughout the existence of the DOC since 2002, the Guidelines to

implement the DOC was agreed only on 21 July 2011, in Bali, when ASEAN

members ratified the Guidelines at the 44th ASEAN Foreign Ministers

Meeting. On 18 November the same year, at the 14th ASEAN-CHINA Summit,

also in Bali, Chinese Premier Wen Jiabao announced that China will

establish a three billion Yuan China-ASEAN maritime cooperation fund

(amounting to USD 480 million) to support connectivity and fund other

initiatives including the DOC activities.

Subsequent to the adoption of the Guidelines, five activities were

carried out as part of the implementation of the DOC, namely; Workshop

on Marine Hazard Prevention and Mitigation in the South China Sea on 17-

18 July 2012 in Kunming, China; Workshop on Marine Ecosystems and

Biodiversity on 31 July – 4 August 2012 in Singapore; Symposium on

Marine Ecological Environment and Monitoring Techniques on 16-17 October

2012 in Xiamen, China; Joint Workshop in Commemoration of the 10th

Anniversary of the DOC on 1-3 November 2012 in Phnom Penh and finally a

Workshop on Cooperation in Search and Rescue of Persons and Vessels in

Distress in the South China Sea proposed by Vietnam and convened in Ha

Noi on 19-20 June 20134. There has been no record on activities towards

combating transnational crime to date.

Combating Transnational Crime: Plan of Action for the ASEAN-CHINA

Memorandum of Understanding on Cooperation in the Field of Non

Traditional Security Issues.

In 2002, ASEAN and China signed a Joint Declaration of ASEAN and China

4 ibid

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on Cooperation in the Field of Non-Traditional Security5 Issues followed by 2004, the

signing of the Memorandum of Understanding (MoU) on Cooperation in the Field of

Non-Traditional Security Issues. After the expiry of the MoU in 2009, a new MoU

for the period of 2010-2014 was signed in 2009 in Siem Reap.

A Plan of Action to Implement the MoU was later adopted on 12 October

2011 in Bali, Indonesia on the occasion of the 20th Anniversary of the

ASEAN-China Dialogue where representatives of the leading law

enforcement departments from China and ASEAN Member States gathered in

Bali, Indonesia, for the Second ASEAN Ministerial Meeting on

Transnational Crime Plus China (2nd AMMTC + China) Consultation. The

Plan of Action was formulated in accordance with the principles and

objectives set forth in the Memorandum of Understanding on Cooperation in the

Field of Non-Traditional Security Issues renewed in 2009, and was to serve as a

master plan for the three years (2011-2014)6. The Parties were to

further enhance law enforcement cooperation within the frameworks of the

ASEAN Ministerial Meeting on Transnational Crime Plus China (AMMTC +

China) and the ASEAN Senior Officials Meeting on Transnational Crime

Plus China (SOMTC + China), and agreed to carry out concrete cooperation

in the areas in accordance with the domestic laws and policies of the

respective Parties.

Outlined in the Plan were focus areas namely; Information Exchange;

Personnel Exchange and Training;Law Enforcement and Cooperation;Joint

5 Non Traditional Security is about law enforcement issues which relates to the use of law enforcement agencies while Traditional Security is more towards conventional (military) operations which are undertaken by military forces. Though conventional forces can carry out law enforcement duties and not vice versa, there are limits to the skill sets and assets of the forces, especially in areas where evidence are pertinent to indictment. Transnational Organised Crime has no definition and it made so on purpose. Generally, these kind of threats require law enforcement response.

6 http://www.asean.org/news/item/plan-of-action-for-the-memorandum-of-understanding-between-the-association-of-southeast-asian-nations-asean-and-the-government-of-the-people-s-republic-of-china-on-cooperation-in-the-field-of-non-traditional-security-issues.

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Research;Review Mechanisms and Institutional Arrangements where contact

information between China and ASEAN are mentioned.

A series of training and workshop for ASEAN Member States has been

provided by China in 2011-2012 to implement the Plan of Action7. At the

15th ASEAN-China Summit, the ASEAN Leaders looked forward to enhance

cooperation with China to address the trafficking of illegal drug and

narcotics.

A point to note at the final part of the Plan is the paragraph which

reads “In accordance with the annual cooperation plan, the expenses of

international travels for the purpose of the workshops, training courses

and other cooperation projects organised by The Government of the

People's Republic of China shall be borne by the sending country. The

Government of the People's Republic of China shall be responsible for

other expenses, including those for transport and accommodation in China

as well as payments to lecturers, unless otherwise agreed upon by the

Parties. Expenses related to the workshops, training courses and other

projects organized by ASEAN Member States according to the Plan of

Action shall be determined by the Parties on the basis of

consensus”. The Plan was set for three years till the year 2014, which

is next year. To date, there has not been any concrete activity to

report on the achievements of the Plan.

There seem to be a common denominator when pondering on the non-

implementation of the functional cooperation in the DOC and the Plan of

Action. Funds for the DOC was only made available in 2011 whilst the

Plan of Action expects Parties to fund their own expenses. Therefore,

one cannot fault the China-ASEAN mechanisms on the implementation of

7 http://www.asean.org/images/archive/documents/ASEAN-ChinaMOUonNTS.pdf.

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initiatives for combating transnational crime.

On the other hand, there seem to be a need to bridge both the

initiatives of the DOC and the Plan of Action as we can conclude that to

date, functional cooperation in combating transnational crime in the

China-ASEAN context has yet to be realised.

Transnational Crime: The Land-Sea Nexus

Notwithstanding all the efforts being carried out between China and

ASEAN, it is penitent to digress a little and address transnational

crime or non traditional security for the matter. To complicate things a

little, let us focus on transnational organised crime8 which is normally

maritime related in this region. Organised crime has diversified, gone

global and reached macro-economic proportions: illicit goods may be

sourced from one continent, trafficked across another, and marketed in a

third. Transnational organised crime can permeate government agencies

and institutions, fuelling corruption, infiltrating business and

politics, and hindering economic and social development. It undermines

governance and democracy by empowering those who operate outside the

law9.

Generally, crime should be seen as a business since its profit driven.

Crimes thrives in the large gap between the shadow economy and the

legitimate economy. In combating crime, law enforcement agencies will

agree that is not just about catching the criminal but the successful

indictment in court, which, incidentally, relies much on the evidence

produced to incriminate the offender. In many cases, when law

enforcement methods are not properly adhered to, the drama to apprehend8 https://www.unodc.org/unodc/en/organized-crime/. 9 Ibid

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perpetrators ends with the acquittal of the offender for technical

reasons. This can be very frustrating to law enforcement agencies and

does not contribute to the trust gap between the communities and the

agencies. There is more in store where law enforcement issues are

concerned. This includes lack of understanding the big picture,

capacities and capabilities, corruption and influential parties who

interfere in law enforcement. These shortcomings coupled with a thriving

criminal organization fuels the logistics chain of crime. Therefore, in

combating transnational crime, a more concerted effort is needed towards

crime and within law enforcement agencies to ensure that the evolution

of crime be met with a revolution in combating transnational crime.

When referring to maritime crime, which is generally transnational in

nature, it has been largely misunderstood that maritime crime are

maritime based and that “good order at sea” can be addressed through

activities at sea to combat crime. When concentrating too much on that

aspect, we miss the fact that that man lives on land and that is where

crime is hatched and the bounty relished, the sea being just the conduit

when committing the crime. In maritime law, the saying “the land

dominates the sea” augurs well when drawing a conclusion that the major

focus on combating crime should be on land since it is the common

denominator between crime, mankind and law as two thirds of the crime

has it’s locus on land.

Land becomes the havens of organised crime syndicates reaping trillions

from the shadow economy. Organised crime syndicates take advantage of

the globalised world, gaps in enforcement and the vulnerabilities of the

communities to peddle their trade through a logistics chain that spans

across the globe. This begs the question as to who should law

enforcement target, the masters who fund the logistics chain of crime or

the impoverished communities who are exploited? Should we pat ourselves

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for the statistics on the capture of smugglers, pirates and armed

robbers or the destruction of the organised crime industry? Yes, a

daunting task, nevertheless when we look upon the statistics below

produced by the United Nations Office for Drugs and Crime Annual Report

201210 on transnational crime, we begin to wonder if we are doing the

right thing and whether if more is needed to address the issue?

10 www.unodc.org

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Source:UNODC

When addressing crime, it is an open secret among law enforcement

agencies that competition for funds and capabilities has led to a

somewhat turf war resulting in the lack of intelligence appreciation

leading to the phrase organised crime, disorganised enforcement and the phrase,

Whole of Government Approach (WoG) but actually Hole-in-the-Government. To be fair to

law enforcement agencies, though at some levels in the law enforcement

fraternity, intelligence are exchanged and shared through a variety of

platforms, in reality, these methods do not guarantee an appreciation of

the situation. The big picture is needed so as to be at the right place

with the right assets, at the right time to catch the right criminal,

towards a successful indictment. In doing so, there could not be weeds

in the system which can reveal the element of surprise. This capability

will be a visible deterrent to organised crime thus raising the cost to

crime. Organised syndicates have to be watchful in all areas to deter

fundamental surprise on their vulnerable logistics chain. By raising the

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stakes, it may not be lucrative to engage in the “business” and with

risks always permeating the air, attraction to the “business” will be

severely affected.

A holistic approach is needed in integrating a combined national and

thereafter a regional effort. The land-sea nexus has to be bridged. This

brings the point that good order at sea is contingent upon good

governance on land. Since crime is a business, the focus should be to

identify initiatives to bridge the gap between the shadow economy and

the legitimate economy. The target being the logistics chain, to cripple

the “alpha through the omega”. All initiatives between China-ASEAN

should coherently address this through the existing platforms that

exist.

Domain Awareness – A Common Operating Picture

There is a need for land and sea law enforcement to work together

towards a common goal. Information exchange and sharing is not enough as

the intelligence appreciation or the big picture needs to seen be all.

This is needed To achieve this, law enforcement agencies could have an

intelligence centre to piece the “jigsaws” they obtain through data

mining. These “jigsaws” when put together may not produce the Then

again, crime is a menace to all and it requires the industry and the

community to participate as well. These are the “eyes and ears” of law

enforcement. Industry based risk consulting companies and the public can

join the fight against crime by providing necessary information to the

agencies to augment existing

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