To forecast even the short-term future of a region as diverse and as subject to external influences as Southeast Asia is rash. But to fail to be aware of emerging trends and likely developments in the region is scarcely less foolhardy. Equally important is attentiveness to the interaction of developments at the national and regional levels in Southeast Asia. That interaction will determine the future of the region.

In the realm of regional politics and security, no trend or development looms as large to observers looking ahead towards 2011 and 2012 as the progress of the “great game” set in motion by the increasing power and assertiveness of the People's Republic of China (PRC). This game spans all of eastern Asia. It has implications for the Indian Ocean. But it is in Southeast Asia that the PRC's growing ambitions and increasing military capabilities have begun to have the greatest consequences. States both within and outside the region have adopted a range of postures in reaction to those ambitions and capabilities. The result has been a climate of deep uncertainty about the extant regional security order.

On one level, the PRC's ever more intense interest in the region challenges the viability of ASEAN's longstanding vision of Southeast Asian security. Beijing's expansive understanding of its national interests seems difficult to reconcile with that vision, which has consistently downplayed such assertiveness in the interest of the gradual construction of a regional community.

On another level, the policies of a range of other external actors have also long shaped the regional political and security environments. American, Japanese, Australian, and, increasingly, Indian and South Korean approaches to Southeast Asia bear as much examination as do Chinese undertakings.

Nowhere have challenges to ASEAN's approach to regional security proved more apparent than in the South China Sea. While ASEAN and the PRC agreed on a Declaration of Conduct in the South China Sea in 2002, the failure in the intervening years both to implement the terms of that declaration and to arrive at a more formal and effective Code of Conduct may symbolize the obsolescence of the Association's approach to regional security.

After the Philippines gained its independence from the United States on 4 July 1946, it continued to live under the 1935 Constitution, with its definition of the national territory. It did so until the promulgation by President Ferdinand E. Marcos of a new Constitution in January 1973.

The 1973 Philippine Constitution

A Constitutional Convention, with over 300 members, had been drafting the new Constitution, since June 1971, when Marcos declared martial law in September 1972. The Convention continued working under martial law conditions. The final text was ratified in a nationwide plebiscite in January 1973. Like the 1935 Constitution, the 1973 document went out of its way to define the national territory. Article 1 of the 1973 Constitution had this to say about the subject:

As in 1934, the 1971–72 Constitutional Convention debated the need to define the national territory in the new Constitution. Led by E. Voltaire Garcia II, some of the delegates argued against the inclusion of such a definition. One of the grounds for the argument was that a definition would preclude the country from pursuing later territorial claims. Delegates also pointed out that questions of territory should be governed by international, rather than municipal, law. Related to this argument was the proposition that the actual exercise of authority over territory was a stronger basis for a claim than a unilateral declaration, which, in any case, was not binding on other nations. Moreover, basing territorial positions on treaties between colonial powers, as the original text of the proposed provision did, would only serve to remind Filipinos of their colonial past.

Other delegates asserted that a provision defining the national territory would serve notice to the world of the country's territorial jurisdiction and reaffirm its sovereignty over its internal waters and territorial sea.

On 22 January 1878, Sultan Jamalul Alam of Sulu executed a document, “with the expressed desire of all Datus in common agreement”, leasing (according to the English translation from the Malay in Arabic script used by the Philippines, but “grant and cede” according to the translation employed by the British) “to Gustavus Baron de Overbeck of Hong Kong, and to Alfred Dent … of London, … as representatives of a British Company, together with their heirs, associates, successors and assigns forever and until the end of time, all rights and powers which we possess over all territories and lands tributary to us on the mainland of the Island of Borneo, … together with all the islands which lie within nine miles of the coast”, defining the metes and bounds of the territory in question in terms of natural features and administrative subdivisions. In return, Overbeck and Dent were to pay the Sultan and “his heirs or successors” five thousand Malayan dollars (increased in 1903 to five thousand three hundred), “to be paid each and every year”. W. H. Treacher, Britain's Acting Consul General in Borneo, witnessed the Sultan's seal and signature on the document.

Six months later, Carlos Martinez, the Spanish Colonel-General (Governor) of Sulu, wrote to Baron de Overbeck informing him that Sultan Jamalul Alam of Sulu had on the same day, 22 July 1878, communicated in writing to the Spanish authorities his decision “to cancel the contract for lease of Sandakan and the rest” on account of Overbeck's failure “to fulfill the contract of lease”, as well as the fact that “the Crown of Spain has possession of all the territory of this Sultanate”. In his reply to the Governor of Sulu, Overbeck rejected the contract's cancellation. In a 2 July letter to the “Governor Captain-General of the Philippines”, the Sultan had claimed that he had been forced to sign the contract of lease — or cession — upon Overbeck's threat that the Captain-General would come, presumably with his forces, and “destroy everything”.

In December 1878, Dent and Overbeck recounted the grant of Borneo territories by the Sultan of Sulu and four previous grants by the Sultan of Brunei to a private association formed by Dent “for the purpose of acquiring territorial grants in North Borneo and developing its resources”.

INTRODUCTION

Noni Gapal was born in 1964 in Chittagong district and from early childhood went out to sea on his family's fishing vessel. He learned the essential fishing skills from his father, but was unable to go to school to learn how to read and write. In 1989, Noni Gapal married a local girl and his family expanded, with his wife giving birth in rapid succession to two sons and a daughter. To support his family, Noni Gapal worked as a fisherman. He had received two Hilsha (Tenualosa ilisha) nets from his father and initially hired a boat to fish, but was shortly able to buy additional nets and a boat with money he borrowed from a fishing association. In April 2003, while fishing, Noni Gapal was attacked by pirates who stole his valuable nets and seriously injured him. To cover the costs of his medical treatment, and to support his family while he recovered from injury, Noni Gapal was forced to sell his fishing boat. Left without nets and boat, he now works as a day labourer, pulling rickshaws for a minimum wage. Noni Gapal still dreams about returning to the sea in his own boat with four fishing nets — once piracy is eradicated.

Noni Gapal's experiences show that pirate attacks on fishers can have very different consequences for a victim's life than comparable attacks on the crew of merchant vessels. In both cases, the attack itself can be extremely frightening and traumatic for the victims, but in attacks on fishing vessels, the victims often lose not only their catch, equipment, and/or boat, but also their source of livelihood. Furthermore, the victims of attacks on small craft such as fishing boats or yachts are invariably confronted by the perpetrators directly. Injuries and the killings of victims are, therefore, more common in these attacks.

Everybody knows what a pirate is. We all have mental images of bearded men with earrings, a peg leg, an eyepatch, and a parrot on the shoulder as epitomized by Robert Louis Stevenson's Long John Silver. The activities of pirates also do not seem very mysterious: they attack vessels and steal whatever they can lay their hands on. However this popular, Western literary-historical notion of a pirate is far too simplistic. Indeed, “piracy” has been associated with a variety of economic and political activities and has carried different connotations over space and time. Hence, definitions of piracy have varied historically and culturally and are highly contested by individuals, groups, and nations. The label “pirate” is inevitably emotive, and linked to particular cultural-historical contexts and moments in globalregional time, especially in Southeast Asia, where the scourge of piracy and its eradication featured largely in the annals of colonial mercantile history. In the past, the categorization of individuals or ethnic groups as “pirates” was ascribed to local “marauders” by colonial powers, signifying a powerful value judgement which was invariably connected to political and territorial ambitions, world commerce, and economic growth. Given the long history of piracy in Southeast Asia, it is necessary to discuss briefly the historical background of sea robbery in the region before shifting the focus to contemporary piracy.

A BRIEF HISTORICAL OVERVIEW OF PIRACY IN SOUTHEAST ASIA

Long before the arrival of the Europeans in the sixteenth century, insular Southeast Asia was inhabited by Muslim people of Malay origin, who were much involved in maritime raiding and trading. Opportunistic attacks conducted by maritime people, such as fishers and petty traders, were common throughout the region, but particularly in the adjacent waters of the kingdoms and entrepots of Kedah, Perak, Selangor, Malacca, and Johor.

INTRODUCTION

We live in an increasingly privatized world. Private education, private airlines, private telephone companies, and private health care are only a few examples of the increasing impact of privatization on our daily lives. Designed to stay competitive in the global market, private companies promise cheaper rates and better service for the customer. Today, such companies offer services for every aspect of life, including the security and military sectors. It should, therefore, come as no surprise that so-called PSCs or PMCs (Private Military Companies) are also employed to secure the world's oceans. Indeed, in the last ten years an increasing number of private companies have surfaced and expanded their operations, offering services ranging from piracy response training for law enforcement personnel, to recapturing hijacked vessels and rescuing kidnapped crew members. This new alternative for ship owners, insurance companies, and other businesses involved in the maritime sector to respond to piracy in Southeast Asia is part of — and exemplifies — the increasing privatization of security. By examining anti-piracy services offered by PMCs/PSCs it is therefore possible to understand the role, impact, and shortcomings of the privatized security industry within and beyond maritime Southeast Asia.

This chapter discusses the privatization of security and the emergence of PMCs/PSCs and examines the different types of anti-piracy services provided by such companies in Southeast Asia. It shows that the existence of PMCs/PSCs and their operations in maritime Southeast Asia indicate that there are security gaps and weaknesses in current maritime security arrangements. Furthermore, the chapter highlights some of the crucial problems and controversies associated with the privatization of maritime security and suggests that the existence of PSCs and the services they offer reveal a range of security problems and concerns in and beyond Southeast Asia.

Pirate attacks occurred regularly in Southeast Asia and the waters of Bangladesh between 1992 and 2006. Within this region piracy hot spots shifted between countries and ocean areas over time. In the early 1990s the waters between the Malacca and Singapore Straits were identified as the most pirate-prone, and between 1993 and 1995 a high proportion of reported attacks took place in the South China Sea. However, since the mid-1990s Indonesian ports and territorial waters were the most pirate-infested in Southeast Asia. Of considerable concern in the early twenty-first century was also the high number of attacks in the busy Malacca Strait and the waters of Bangladesh. Pirates in these waters have targeted merchant vessels as well as small craft with attacks ranging from simple hit-and-run robberies to hijackings. While hijackings of vessels and kidnapping of crew occurred in Southeast Asia and Bangladesh, the vast majority of pirate attacks on merchant vessels were simple hit-and-run robberies at sea or in ports. Opportunistic sea robbers or organized pirate syndicates were responsible for these attacks.

In terms of attacks on small craft, yachts have only rarely been targeted in Southeast Asia and Bangladesh between 1992 and 2006. However, examples from Bangladesh to the waters between Sabah and the southern Philippines have highlighted that piracy is a real concern for fishers. Indeed, fishers are arguably most affected by piracy, and attacks on such vessels were often serious in nature, and included kidnapping of fishers. Overall, attacks on fishers can have very different consequences and impact compared with attacks on merchant vessels, as sea robbers inevitably confront the fishers directly and can destroy a fisherman's livelihood by taking his vessel, equipment, or catch. However, fishers were not only victims of pirate attacks. In many places in Southeast Asia and Bangladesh, fishermen themselves were the perpetrators, attacking their counterparts or participating in attacks on merchant vessels.

INTRODUCTION

On 18 July 2006, Indonesian authorities arrested three former members of the GAM for their alleged involvement in a string of pirate attacks in the northern Malacca Strait, including an attack on a vessel carrying aid for tsunami victims. The three pirates were not arrested at sea, but captured in Lhokseumawe, a city in northern Aceh (Map 2.2 in Chapter 2). These arrests show that people associated with politically motivated groups, such as the GAM, are believed to be responsible for some pirate attacks. However, the involvement of politically motivated groups in pirate attacks is contested, with leaders of these groups often denying their movement's participation in these criminal activities.

This chapter explores the involvement and links between piracy and politically motivated groups in Southeast Asia. In this region, two different types of politically motivated groups, namely terrorists and guerrillas, are potentially involved in piracy in two different ways. Firstly, members of some of these organizations conduct pirate attacks to finance their group and its operations. In Southeast Asia, three politically motivated groups were believed to be actively involved in piracy between 1992 and 2006, namely, the GAM in Aceh, and the Abu Sayyaf and the MILF in the southern Philippines. Secondly, pirates may cooperate directly with, or be of assistance to, terrorist organizations. Terrorist groups discussed in this regard include the internationally operating al-Qaeda and the Indonesia based JI. This chapter examines the actual and possible involvement of these guerrilla and terrorist groups in piracy, and explains why these and similar politically motivated groups pose a threat to national, regional, and international security well beyond pirate attacks.

TERRORISTS AND GUERRILLAS

Distinguishing Types of (Political) Violence

Defining terrorism is a difficult task. Part of the problem, as Walter Laqueur points out, is that terrorism is not an ideology but an insurrectional strategy, which can be used by people of very different political convictions.

INTRODUCTION

In an interview with the author, Daniel Tan, the executive director of the Singapore Shipping Association (SSA), explained that merchant vessels simply exist to transport goods from point A to point B. Shipowners and operators, therefore, provide a service that both assists the global economy and is important to states. Consequently, Tan believes that it is the responsibility of the states where pirate attacks occur, rather than the shipowners, to provide security for merchant vessels. As a representative of the interests of shipowners, Tan clearly wants to place the responsibility for security and the financial costs that such measures incur into the hands of states and their law enforcement agencies. While it remains contested who is responsible for providing security in the maritime sphere, states and law enforcement agencies are, overall, the primary providers of security for ships in ports and waters under their jurisdiction. This chapter discusses state responses to piracy in Southeast Asia and Bangladesh. It seeks to explore how states, government policies, and the economic and political situation within countries and regions shape piracy and affect national, regional and international security. Particular attention is paid to how the emergence of national maritime borders, the establishment and development of those government agencies responsible for addressing piracy, and security cooperation between countries influence the occurrence of piracy.

STATES, BORDERS, AND MILITARIES IN SOUTHEAST ASIA AND BANGLADESH

Pre-1989

Bangladesh and most Southeast Asian countries became independent nations within the three decades following World War II. The way in which these independent states emerged, the economic development of these countries, and the establishment and funding of their military forces and law enforcement agencies, have had a major impact on contemporary maritime piracy.

In November 1998, while en route from Shanghai to Port Klang in Malaysia, the Hong Kong registered cargo ship Cheung Son was approached west of Kaohsiung, off the coast of southern Taiwan, by a small boat which appeared to be a Chinese customs vessel. Left with little choice, the captain allowed the officers on board his ship, which carried a cargo of furnace slag. Once on board the Cheung Son, the Chinese “officers”, dressed in uniforms and armed with guns, threatened the crew and took control of the vessel. After being held hostage for ten days, all twenty-three Chinese crew of the Cheung Son were bludgeoned to death and their weighted bodies thrown into the sea. After the killings, the pirated vessel was sold within China. The new owner hired a new crew and reportedly sold the vessel to an unknown Singaporean party for US$300,000.

The pirates, however, did not get away with their crime. In an interview granted to the foreign media, Chinese police officials recounted that investigation into the Cheung Son's disappearance had begun as soon as the owner of the vessel reported having lost contact with the ship. As the first bodies of the murdered crew members were found by fishermen, police learned that a man from Shanwei “went to sea and came back with a lot of money and a dented boat”. The police officers eventually located the boat and its owner who was hiding in a fishing village. He told the police that he had lent his vessel to two men who could be found in Shenzhen. Acting on this information, 300 officers raided a Karaoke bar, where the alleged members of the pirate gang were celebrating. In the course of further investigation, the Chinese authorities discovered that some of the gang members had been involved in at least two other serious pirate attacks between August and November 1998. This information and the discovery of a celebratory photograph, taken by the pirates on board the Cheung Son, led to further arrests.

Before the Spanish exploration and conquest of what was to become the Philippines, most of the people of the islands lived in barangays, communities named after the boats in which their ancestors are said to have sailed from across the seas. Although such communities were, individually or in groups, self-governing, with no archipelago-wide central authority to which they owed allegiance, they shared similar cultures, customs, languages and traditions, and groups of them were often bound together by family ties or common interests or both.

The centuries-long process of consolidating the islands and seas of the Philippines into a national community and eventually a national state did not begin until Spanish explorers and conquistadores arrived in the sixteenth century. This process was accompanied — and reinforced — by the steady development of a sense of nationhood among the Filipinos themselves.

In May 1493, in an attempt to put some order into the scramble for territories between the two leading maritime powers at the time, Spain and Portugal, the Spanish-born Pope Alexander VI issued a Bull granting to the Spanish sovereigns, Ferdinand and Isabela, “all islands and mainlands found and to be found, discovered and to be discovered towards the west and south” of a line drawn from the North Pole to the South Pole 100 leagues from the Azores and Cape Verde islands (off West Africa) except for lands under Christian possession as of Christmas 1492. (The marriage of Ferdinand and Isabela in 1469 had brought together the kingdoms of Aragon and Castille, forming the foundation of present-day Spain.)

In June 1494, the Spanish sovereigns and the Portuguese King concluded the Treaty of Tordesillas, confirmed by Pope Julius II in 1506, which moved the demarcation line westwards to 370 leagues west of the Azores and Cape Verde islands. Portugal and Spain had initiated the age of European exploration and colonization of the Americas, Africa, the coasts of South Asia, and island Southeast Asia, to be followed by the Dutch and the British. In 1542, Charles V, Holy Roman Emperor and ruler of the Spanish realms, whose maternal grandparents were Ferdinand and Isabela, decided to colonize what was to become the Philippines.