13development of a country or region. Thus, it is an inevitable choice for all the countries that they should vigorously develop and utilize intellectual resources. All in all, developing forward-thinking and pioneering innovative entrepreneurs, leaders and industry elites adapts to the world's development and the social needs.
Куен-чен Фу, директор, Сямыньский университет, Южно-китайский морской институт, профессор права Шанхайского университета Цзяо Тун, главный редактор журнала China Ocean Law Review, магистр права, доктор юридических наук, Университет Вирджинии. г. Шанхай, КНР. E-mail: kuenchen_fu@ 163. com
ПРОБЛЕМЫ НАВИГАЦИОННОЙ БЕЗОПАСНОСТИ В ТАЙВАНЬСКОМ ПРОЛИВЕ -ВЧЕРА, СЕГОДНЯ, ЗАВТРА
Тайваньский пролив уникален с точки зрения международного права. Он относится к тем акваториям, где часты случаи пиратства и вооруженных ограблений, а навигационная безопасность находится под угрозой. В статье приводится обзор геополитических характеристик Тайваньского пролива, истории пиратства в проливе, а также детальный анализ вызовов и ответов на них в регионе.
Автор дает подробную характеристику правовому статусу Тайваньского пролива. В частности, с точки зрения международного морского права воды Тайваньского пролива могут быть разделены на три категории: территориальное море и внутренние воды Тайваня и материковой части Китая; специальные «контролируемые воды» и «запрещенные воды» от островов Цзиньмэнь, Мацу и Вучиу вдоль побережья материкового Китая; ИЭЗ в серединной части пролива.
В статье рассматриваются также вопросы безопасности судоходства, пиратства и терроризма, приводится историческая справка о пиратстве в Китае, включая Тайвань, даны возможные ответы на вызовы и угрозы безопасности.
В заключение статьи предложены практические предложения по улучшению существующих мер в этой области пролива для лучшего раннего выявления угроз безопасности. Автор указывает, что успешное противодействие преступной деятельности на море не может реализовываться в одностороннем порядке, необходимо тесное международное сотрудничество восточноазиатских стран. Больший упор при этом должен быть сделан на профилактику и «раннее обнаружение» вызовов безопасности.
Ключевые слова: Тайваньский пролив, навигационная безопасность, пиратство, международное сотрудничество.
Kuen-chen Fu, Director, Xiamen University South China Sea Institute, KoGuan Chair Professor of Law, Shanghai Jiao Tong University, Editor-inChief, China Oceans Law Review, LL.M., SJD, University of Virginia. Shanghai, PRC. E-mail: kuenchen_fu@163.com
NAVIGATIONAL SECURITY ISSUES IN THE TAIWAN STRAIT - YESTERDAY, TODAY AND TOMORROW
The Taiwan Strait has a unique place in the international law arena. It has been an area where piracy and armed robberies are common and navigational security is threatened from time to time. This paper will review the geo-political characteristics of the Taiwan Strait, the history of piracy in the strait area, and further comment on the challenges and responses in the region.
The author gives a detailed description of the legal status of the Taiwan Strait. In particular, according to the international law of the sea, the waters in the Taiwan Strait may be divided into the following three categories: the territorial seas (and internal waters) of Taiwan and China Mainland; special «controlled waters» and «prohibited waters» of the off-shore islets of Kinmen, Matzu and Wuchiu along the coast of China Mainland; the EEZ in the middle part of the Strait.
The article also covers the issues of navigation safety, piracy and terrorism, the historical background of piracy in China, including Taiwan, the possible responses to the challenges and threats to security.
In conclusion, the article offered practical suggestions for improvement of existing measures in this area of the Strait for better early detection of security threats. The author points out that the successful response of criminal activities at sea cannot be achieved by unilaterally implemented measures; it requires international cooperation of East Asian countries. Greater emphasis should thus be placed on prevention and «early detection» of the security challenges.
Keywords: the Taiwan Strait, navigational security, piracy, international cooperation.
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Introduction
The Taiwan Strait has a unique place in the international law arena. It has been an area where piracy and armed robberies are common and navigational security is threatened from time to time. This paper will review the geo-political
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This paper is based on the ppt presentation made in the International Symposium on "Safety, Security and Environmental Protection in Straits Used in International Navigation: Is International Law Meeting the Challenge?" 9~11 September 2011, Istanbul, Turkey.
characteristics of the Taiwan Strait, the history of piracy in the strait area, and further comment on the challenges and responses in the region. In conclusion, this paper will offer practical suggestions to improve the existing measures in this strait area for a better, earlier detection of any threats.
1. The Taiwan Strait and its Geopolitical Characteristics
The Taiwan Strait is located in the southern most part of the East China Sea and the northern most exit of the South China Sea (See map 1). The marine area lies between Taiwan Island and the provinces of Fujian and Guangdong on the China mainland. The southern edge of this strait is located at about 22° north latitude, between Er-luan-bi of Taiwan's southern tip, and Hui-lai of Guangdong Province. This is also the widest part of the Strait, which measures about 350 nautical miles (nm). The northern edge of the Strait is located at about 25.5°north latitude, between the mouth of the Dan-sui River of northern Taiwan and the eastern shore of Ping-tan Island of Fujian Province. The width in this part measures about 135 n.m.
In general, strait area has very shallow with the exception of the Penghu Channel, lying between the Island of Taiwan and its offshore Penghu Islands (The Pescadores), which measures 177 meters in depth. By contrast, the submerged «Taiwan Shoal» at the center part of Taiwan Strait's southern mouth measures only 25 meter averagely in depth.
The eastern shore of the Taiwan Strait is mainly sandy, with basically straight shorelines and very few harbors. Gaoxiong, Taizhong, Taipei and Keelong are the four major harbors. On the western side of the Strait, however, the coastline is zigzagged with many natural harbors, such as Fuzhou, Meizhou, Quanzhou, Xiamen, Dongshan and Shantou.
Since 1949, after the successful establishment of the People's Republic of China (PRC) government, two Chinese governments have exercised jurisdiction over the Taiwan Strait area. While the PRC government controls the Chinese Mainland on the western shore of the strait, the Taiwan (ROC) [1] government controls the Island of Taiwan, its off-shore islets on the eastern shore of the strait, and some other islets on the western shore of the Taiwan Strait, i.e., Kinmen, Matzu and Wuchiu. Because these few islets are in such close proximity to the Mainland they are all enclosed within the PRC proclaimed territorial sea baselines, while remaining under the jurisdiction of Taiwan.
On 2 December 1954 the United States and Taiwan signed the «Sino-American Common Defense Treaty» to maintain a military balance between Taiwan and China Mainland. However, in 1979, with the changing course of diplomatic winds the United States unilaterally abandoned the Common Defense Treaty when Washington recognized the PRC as the sole legitimate representation of China. Taiwan, nonetheless, continued its friendly relationship with Washington, and gradually improved its relationship with the PRC government.
An important step was taken on 31 July 1991 when Taiwan promulgated its «Statutes on the People's Relationship between Taiwan Area and Mainland Area». The so-called «Taiwan Area» was defined as including Taiwan, Penghu, Kinmen, Matzu and other territories under the contemporary jurisdiction of the ROC (Taiwan). And the so-called «Mainland Area» indicates all the other parts of the ROC territories under the contemporary jurisdiction of China Mainland. The constitutional concept of «One China» was pragmatically legalized in Taiwan for purposes of furthering the development of cross Strait activities. In short, constitutionally, the ROC continues to define itself as «the China», that includes Mainland China, while the PRC also defines itself «the China», that includes Taiwan.
II. Status of the Taiwan Strait under international law
International law of the sea, as reflected in the 1982 United Nations Convention on the Law of the Sea, recognizes different categories of Straits according to which different rules of passage apply. The general rule of passage for straits used in international navigation connecting one part of the high seas or the EEZ to another part of the high seas or EEZ is transit passage [2]. In addition non-suspendable innocent passage applies in straits where routes of similar convenience exist through the high seas or EEZ ; in straits between an island and the mainland if a route of similar convenience exists between the high seas or EEZ; in straits between the territorial sea of a coastal State and the high seas or EEZ and (4) and in straits governed in whole or in part by a long-standing international convention.
However, because of its history and political developments the Taiwan Strait presents an interesting legal situation. From the international law of the sea aspect, the waters in the Taiwan Strait may be divided into the following three categories:
1) The territorial seas (and internal waters) of Taiwan and China Mainland: Sovereignty is exercised respectively by each of the two Chinese governments based on the principle of «One China», and in accordance with the territorial sea baselines proclaimed by the two Chinese governments [3].
2) Special «controlled waters» and «prohibited waters» of the off-shore islets of Kinmen, Matzu and Wuchiu along the coast of China Mainland: Interestingly, these islets and their surrounding «controlled» and «prohibited» waters are all located within the straight baselines proclaimed by the PRC in 1996, i.e., in the internal waters of the PRC. But they are under the jurisdiction of the ROC (Taiwan). A tacit agreement was reached in 1992 when the two governments' white-gloves met in Singapore, and created this very unique situation [4].
3) The EEZ in the mid part of the Strait: With the exception of the territorial sea (and internal waters) of the Penghu Islands, which are under Taiwan's jurisdiction, the central part of the Taiwan Strait is part of the Mainland Chinese EEZ
that is subject to the parallel jurisdiction and control of the two governments within the context of the "once China" policy [4]. Again, a tacit agreement exists between the two Chinese governments ever since the civil war days that allows a roughly median line in the Taiwan Strait that separates the two jurisdictions.
In short, the Taiwan Strait is rather unique in the eyes of international lawyers.
Both sides of the Strait have adopted the «One China» policy under their respective Constitutions. However, at the same time, the PRC and ROC have respected the de facto sovereign rights and jurisdiction of each other over land and waters, including the Taiwan Straits, in accordance with contemporary international norms.
III. The Security, Piracy and Terrorism Issues in the Taiwan Strait
History of piracy in China and Taiwan region
The issues of security, piracy and terrorism are very closely linked and should not be treated separately. This is particularly true in today's international community. However, under international law, piracy is much more precisely defined and regulated both domestically and internationally than the other two issues. For this reason this paper will focus on the subject of anti-piracy (and armed robbery) measures in the Taiwan Strait.
In China's long history, the Taiwan Strait was notorious for piracy crimes. During the Ming Dynasty (dates) and the Qing Dynasty (dates), the significant number of pirates and acts of piracy at sea was one of the principal reasons for the emperors to issues edicts prohibiting ships to sail to the marginal seas neighboring Chinawithout special permits. That included the Taiwan Strait and the South China Sea. At that time, some local pirates cooperated with foreigners from Japan or Europe (Portugal and Dutch) to fight against the Chinese emperor's navy. The Battle of Liaoluo Bay was a prominent example.
The battle occurred in the year of 1633, off the coasts of Fujian and Kinmen in the Taiwan Strait area between the Dutch East India Company and the Chinese Ming Dynasty's navies. It was one of the largest naval engagements of the 17th century involving a total of fifty warships, one hundred small fire ships, twenty Dutch warships and fifty allied pirate ships [5]. The battle was fought at the southern coast of the Island of Kinmen, in Liaoluo Bay. The Dutch fleet, under the command of Admiral Hans Putmans, was attempting to control shipping in the Taiwan Strait, while shipping and trade in the southern Fujian sea traffic was protected by a fleet under the command of Brigadier General ZHENG Zhi-long who, before surrendering to the Ming Dynasty emperor, was an infamous pirate leader, according to many Chinese historians.
The battle began with ineffectual skirmishes that lasted for months. The decisive encounter finally took place on October 22, 1966, when ZHENG's fleet
encountered the nine remaining Dutch ships which included fifty Chinese pirates who had joined the Dutch fleet ships from Chinese pirate allies. The eventual victory of the Ming navy, however, did not bring much luck to the Emperor Chong-zhen who was later killed by the Manchurians, after which the Ming Dynasty was replaced by the Qing Dynasty.
The problem of piracy during the Qing Dynasty became even worse. During 1790-1810, piracy crimes rose to a new peak in Southern China. A fast growing population in the Southern Chinese provinces forced many of the people to leave their farm lands and turn to the ocean for their livelihood. Some of the people became fishermen and some became pirates. During this twenty year period some roughly 50,000-70,000 pirates existed in this region, including in the South China Sea, the Hong Kong area and the Taiwan Strait. Among them, ZHANG Bao-zai, ZHENG Yi and GUO Po-dai were the most notorious [6].
Because of the Xi Shan Rebellion in Vietnam, the new Xi Shan Government invited the Chinese pirates to fight against the NGYONG Family in southern Vietnam and the ZHENG Family in the north. During the late 18th century Vietnam became an asylum for Chinese pirates [7]. Although the Chinese Qing Dynasty government had been alerted, no serious military actions were carried out against these pirates until after 1802 when the NGYONG Family defeated the Xi Shan Government. The NGYONG Family then began to collaborate with the Qing Dynasty to destroy the pirates. As a result the pirates split into six different groups/banners (red, yellow, green, blue, black and white banners). Eventually internal fighting began which caused a decrease in number of Chinese pirates.
The November 1809 Battle at Chi-La-Jiao, which took place where the new Hong Kong Airport is located today, brought to end what where the «golden years» for the Southern Chinese pirates. After this battle, the leaders of the largest pirate groups, Zhang Bao-zai (red banner) and GUO Po-dai (black banner), began fighting against each other . Both pirate groups were then repeatedly attacked by the Qing Dynasty navy. Eventually the pirates all surrendered to the Qing Dynasty in 1810.
Today, pirates continue to exist in the Taiwan Strait and the near-by waters of the northern part of the South China Sea. However, probably because of the strong military surveillance and marine police patrolling forces deployed by both Taiwan and China Mainland along the shores of the Taiwan Strait, pirates in this area are not as active as those in the southern part of the South China Sea. In regard to issues of terrorism and security the pirates in the Taiwan Strait northern South China Seas do not pose a serious threat. While piracy in this area poses a potential threat the risk has progressively decreased following the political rapproachement between the Chinese Taiwan and the Chinese Mainland in the 1990s.
In this author's view, the only critical issue concerning piracy in the Taiwan Strait area is the lack of any statutory definition and punishment for the «crime of piracy» under the PRC Criminal Law. Although Taiwan has in its Criminal
Law the statutory provisions on the punishment of the «crime of piracy», China Mainland, on the other shore of the Taiwan Strait, does not have this statutory provision. Because criminals can only be punished according to statutory criminal codes - this is a very basic legal principle, thus, this legal gap has to be filled by the PRC National People's Congress. It cannot be satisfied through judicial lawmaking in the PRC courtrooms.
Piracy is defined in Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as follows:
«Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such shipor aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of factsmaking it a pirate ship or aircraft;
(c) any act inciting or of intentionally facilitating an act described in subparagraph (a) or (b)».
The 1982 UNCLOS essentially codified the customary international law rules on piracy. And while the PRC is a party to the 1982 UNCLOS, the lack of a parallel domestic definition for the crime of «piracy», or similar act, as provided in the UNCLOS, poses a legal problem. In order for the Chinese officials to prosecute an act of piracy committed in the Taiwan Strait or neighboring seas, the PRC needs domestic law.
The 1998 «M/V Chang-Sheng», an important piracy case that took place in the Taiwan Strait area provides an excellent example of this critical issue. According to China News Agency, on 10 December 1999, the Medium People's Court of Shanwei City, Guangdong Province commenced trial procedures against pirates. However, these pirates were prosecuted for crimes of «robbery» and «intentional man slaughter» and not for the crime of «piracy» [8]. The principle Indonesian suspect, Suoni WEI and Chinese gangster, WENG Si-liang, together with the other thirty-six other charged suspects were also charged with the crimes of «drug use», «possession of weapons without permit» and «hiding criminals». According to the prosecutors, these «gangsters» disguised as control policemen committed three cases of «hijacking vessels at the sea».
The first case of hijacking at sea was committed on 7 September 1998. The «gangsters» left Shanwei on an iron-hulled ship and sailed in the southern part of the Taiwan Strait for two days. Then they captured the Singaporean flagged tanker "The Louisa," Which was carrying 5,500+ tons of palm oil. Armed with knives and guns, the gangsters boarded «The Louisa» and robbed the crew.
The second case of hijacking at sea took place at the end of September 1998. A group of pirates sailed from Raoping, Guangdong Province to the northern part of the South China Sea, and captured a foreign vessel carrying sugar cane juice. They also robbed the crew.
The third case took place on 15 November 1998 with the same gang of of «pirates» that had attacked and robbed the Louisa. Many of the pirates were dressed as armed border control policemen. The following morning they intercepted the «M/V Chang sheng» which was carrying coal. After boarding the vessel the «pirates» roped, gagged and handcuffed a crew of twenty-three. The pirate leader HUANG Wei-zhong together with other pirates robbed the vessel and then sent samples of the coal to WENG Si-liang in Rao-ping City to attract his purchasing the coal. WENG also ordered the pirate Souni WEI to kill the entire crew and throw them over board. Souni WEI obeyed and brutally carried out these orders. They then sailed the «M/V Chang Shen» to a foreign country, sold the vessel with its cargo on board, and shared the criminal booty.
According to the news report, twenty-seven privately-retained lawyers and five public lawyers that were designated by the court appeared together in the court procedures against these pirates. In addition to the criminal charges, the vessel owner, the Hong Kong based Hui-Bo Shipping Limited Company, asked also for a civil monetary compensation of US$3,100,000. While the China News Agency described the offenders as «pirates» many times, they were never charged with the crime of «piracy», but with other related crimes. The prosecutors never employed the word «piracy» in their prosecution.
This 1998 case involved Chinese nationals and Chinese flagged ships, and occurred in the territorial sea, contiguous zone and EEZ of the PRC. Thus there was no disagreement on the legitimate judicial jurisdiction of the PRC. However, had the case involved non-Chinese nations, foreign flagged vessels/aircrafts and occurred in the «high seas», then there would had been a controversy and disagreements as to the existence of the judicial jurisdiction of the PRC over the case - unless there is a statutory provision for the punishment of the «crime of pira-cy» in the PRC Criminal Law.
The key point is that the crime of «piracy» is subject to universal jurisdiction. Whereas, the crimes with which the «pirates» or «gangsters» were charged are not subject to universal jurisdiction under the 1982 UNCLOS or customary international law. If only the above mentioned crimes of «robbery», «man-slaughter», «possession of weapons without permits», «hiding criminals» and «hijacking vessels at the sea» are defined and provided for in the PRC Criminal Law, and not the crime of «piracy» including applicable punishment, the Peoples' Court of the PRC cannot exercise any judicial jurisdiction over those foreigner «pirates» for acts committed the high seas.
A newly released report by the London-based International Maritime Bureau (IMB) on piracy issues in this region underscores the need for the PRC to adopt
domestic laws on piracy. According to IMB, while stronger regional cooperation has reduced piracy in the Malacca Strait over the past five years, at the same time, this has resulted in moving some of the pirates to the South China Sea [9]. According to the figures released by the London-based International Maritime Bureau (IMB), the number of actual and attempted piracy attacks in the Malacca Strait dropped from eleven in 2006 to two in 2010.The main reason for the decrease was a coordinated regional program named the «Eye in the Sky», which included shared aerial reconnaissance and surveillance efforts by Indonesia, Malaysia, Singapore and Thailand. The program began in 2005, with Thailand joining the program later in 2006. The result was a significant decrease in the rate of piracy events in the Malacca Strait.
By 2009, the Malacca Strait accounted for 45 out of 406 piracy incidents globally, or eleven percent. However, the geographical focus of the problem has shifted eastward into the South China Sea where the number of attacks has increased, especially around the Natuna Island, which is under Indonesian jurisdiction. According to the IMB report, the number of piracy attacks in the South China Sea increased significantly from only one reported case in 2006 to more than 30 in 2010 [9]. If this trend continues, piracy in the Taiwan Strait, or the northern part of the South China Sea, will become an even more serious problem than now. Already, cases of piracy attacks in this region were on the rise, even prior to the above mentioned regional program in the Malacca Strait. Following the relaxing of cross-strait exchanges in 1989, there was an increase in attacks against Taiwanese fishing vessels by Mainland fishing vessels in the Taiwan Strait and its vicinities. For example, on 5 May 1992, the Xin-Fu-Yi 168 from Nan-Fang-Ao, Taiwan, was attacked by Mainland pirates; on 14 May 1992, the Jin-Hui-Hong 61 was also attacked by Mainland pirates [10; 11].
In sum, with the increase of piracy attacks in the Taiwan Strait area, the two Chinese governments are paying greater attention to this issue.
IV. Responses to the Challenges
Facing the challenges of increased piracy and armed attacks against vessels in the region, particularly the Taiwan Strait area, the PRC government has continuously responded with some sort of action. In 2008, the Ministry of Communication and Transportation increased its investment in marine search and rescue (SAR) services in the Taiwan Strait and its nearby water areas. Also, it has encouraged further collaborations between the SAR entities in both Chinese Taiwan and Chinese Mainland [12]. In the same year, the first Taiwan Strait Marine Surveillance Base was completed. The China Review News Agency, citing Da-Gong-Bao Daily, described the first Taiwan Strait Marine Surveillance Base (Xiamen Marine Affairs Bureau Dock) as an 80-meter long dock, 12- meters wide, with a bridge measuring 77.5 meters in length 5 meters in width, located between the Dock of Song-yu Islet and the Bo-tan Oil Dock in Hai-cang District.
The Marine Surveillance occupies 201.5 meters of coastline with a land area of 9,446 square meters. The natural water depth in the dock and its pool, where ships turn around in the port to change directions, is able to sustain operations of any Coast Surveillance ships of 1000+ tons or that of 60 meters long. This base will significantly reduce the response time by marine patrolling vessels to reach any site of distress in the Taiwan Strait area. In addition, the new based also includes landing areas for Marine SAR helicopters.
The Xiamen Marine SAR Commanding Center, which serves as the brain for coordinating and commanding all SAR activities in the Taiwan Strait areas is located right next to this Taiwan Strait Marine Surveillance Base is. According to Xiamen Marine Affairs Bureau officials, the largest law enforcement vessel to date, a new sixty-meters long patrolling ship will be docked in this base [13]. In addition, two more large docks in Zhang-zhou and Dong-shan were also under construction.
On 20 January 2010, the Xiamen University and Shanghai Jiao Tong University organized the «Cross-Strait Seminar on Marine Search and Rescue and Salvage Cooperation». This was an historic meeting as for the first time in history, officers of Taiwan's Marine Patrol Agency, which is similar to the United States Coast Guard, entered into China Mainland for the discussion. More than thirty participants from both sides of the Taiwan Strait attended this seminar. The workshop proved successful and on 20 May 2010, a second workshop on Cross-Strait Coastal Radio Service Collaboration was convened and chaired by Xiamen University. The participants urged that the meeting should be held annually in furthering the common interest for maritime SAR services and humanitarian purposes. The workshops also produced other concrete results. Five months after the second workshop, on October 16, 2010, the first joint SAR exercise was successfully conducted in the Taiwan Strait area.
In addition, the PRC has also been increasing its capability to respond to the challenges of criminal activities at sea. An article by Prof. Lyle Goldstein in 2009 vividly described the Chinese Coast Guard as lagging far behind other countries' coast guard strength in the Pacific region, particularly that of the US and Japan [14; 15]. Most of the vessels used by the China Coast Guard under the Ministry of Public Security for this purpose are less than 500 tons. There are few helicopters and planes. According to Goldstein, the larger marine patrolling vessels (type 718) are 1500 tons, about 100 meters long, and are installed with thirty-seven mm machine guns. Because of the lack of marine policing capacity, the PRC had to use many different marine forces to ensure marine security during the 2008 Beijing Olympic Games. This included the China Coast Guard under the Ministry of Public Security, the Marine Safety Administration (MSA) under the Ministry of Communication and Transportation, the China Maritime Surveillance (CMS) under the State Oceanic Administration, the Fishery Surveillance under the China Fishery Law Enforcement Command (FLEC) of the Ministry of
Agriculture, and even the PLA Navy. Collectively these forces intercepted thousands of vessels ensuring the security and success of the 2008 Beijing Olympic Games.
While the 2008 Beijing Olympic Games was successful case of coordination of different marine forces, there are many other not-so-successful cases that can be found in the Chinese marginal seas, including the Taiwan Strait. The popular expression of «Jiu-Long-Nao-Hai» or «nine dragons playing in the seas» means that there are simply too many (nine totally) marine forces in China for law enforcement at sea. The resolution of this problem continues to be a challenge. The PRC government has attempted to unify the marine law enforcement forces, nut until now these efforts have not been successful. The Taiwanese Chinese government had also experienced similar problems. However, Taiwan succeeded in resolving this matter by unifying all of the marine law enforcement forces into one single Marine Patrol Agency in 2001.
In 2008 China Maritime Surveillance (CMS) established a satellite communication network. The DVB-RCS satellite communication system with the capability of handling 100 vessel-carried stations simultaneously was installed. The system covers all the marine areas under the Chinese jurisdiction, including the Taiwan Strait. In tandem with the CMS satellite system the China Marine Surveillance (CMS) also substantially strengthened law enforcement capabilities by establishing regular marine surveillance over the entire marine area under the jurisdiction of China. The North Sea, the East Sea and the South Sea surveillance regions have been sophisticatedly designed and are electronically monitored continuously by CMS.
These measures alone with not, however, ensure the eradication of piracy or armed robbery from the Taiwan Strait. The current trend of more pirates moving their «business» toward the South China Sea and Taiwan Strait highlights the need for greater cooperation from nearby countries and entities.
Acts of piracy and armed robbery against ships are of tremendous concern to the International Maritime Organization (IMO) and to the world shipping industries. The need prevent and suppress these acts lead to the adoption by the IMO in December 2002 of measures to improve security on ships and in port facilities [16]. IMO's long-term anti-piracy project began in 1998. Its aim has been to foster the development of regional agreements on implementation of counter piracy measures. For example, The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP) for the Straits of Malacca and Singaporewas concluded in November 2004 by sixteen Asian countries.
The success of RECAAP raised the question of whether a similar regional project, together with its Information Sharing Centre (ISC) for facilitating the sharing of piracy-related information, be a model for the Taiwan Strait area between China Mainland and the Taiwan government? There are three reasons why it should:
1) Although Taiwan has not been involved in inter-governmental negotiations in this region as China Mainland, Taiwan has been eager to engage in coordinated anti-piracy and regional marine security measures with all the regional entities, including China Mainland.
2) Although Taiwan, regarded as a «non-state entity», is not able to join many of the United Nations and the IMO conventions the anti-piracy project has never been regarded as open only to «states». In recent years, especially after the thawing of cold war ideologies in the Taiwan Strait area, Taiwan has participated in some of the South China Sea collaborative activities.
3) As a result of the now «almost» routine cross-strait meetings between the two Chinese governments' white gloves, the Strait Affairs Association (SAA) in Beijing and the Strait Affairs Foundation (SAF) in Taipei, have lead to agreements between Taiwan and China Mainland to cooperate on marine safety and security issues.
Article 4, paragraph (1) of The Cross-Strait Joint Combating Crimes and Judicial Mutual Assistance Agreement, signed by the two parties on 26 April 2009, lists as the crimes for joint combating activities to include: manslaughter, robbery, kidnapping, smuggling, illegal arms, drugs, slavery and organized illegal smuggling of stowaways. Article 4, paragraph (4) of the same agreement further includes the crimes of hijacking aircrafts, vessels and other criminal acts related to terrorism [17].
In addition to the increased collaboration between Mainland China and Taiwan, the IMO should be expected to play an even more important role in the Taiwan Strait for purposes of combating piracy and armed robbery against vessels. In the short-term, a regional agreement for the South China Sea and Taiwan Strait similar to the 2009 Djibouti Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden [18], which aims at large scaled combatting against serious piracy, might not be necessary. However, a system of national focal points and information centers, together with the current IMO reporting system and some other safety related conventions, e.g., SOLAS (Safety of Life at Sea) and STCW (Standards of Training, Certification and Watch-keeping for Seafarers), would be an essentially positive development for the Taiwan Strait. After all, if the two Chinese governments in the Taiwan Strait area might work more collaboratively under the auspices of the IMO, the maritime security challenges would be met more satisfactorily.
FOUR: Conclusions and Suggestions
The threat of piracy and armed robbery in the Taiwan Strait, while not serious today was a serious problem in the past. This Strait, historically notorious for piracy, needs to garner the close attention by the two Chinese governments and also other parties with maritime interests in the security in this vital channel of maritime
communications. The successful response of criminal activities at sea cannot be achieved by unilaterally implemented measures. Certainly, both China Mainland and China Taiwan assume the primary responsibilities to combat piracy in the strait. Furthermore, other Eastern Asian parties such as Japan, North and South Korea, Russia and the ASEAN countries need to coordinate for ship reporting and information sharing. Without question, a comprehensive approach is required to deal with piracy and armed robbery crimes - not just in the territorial seas or EEZs in the Taiwan Strait, but at the high seas annexed to the Taiwan Strait also. In order to accomplish this Mainland China should, at the minimum, promulgate on an urgent basis her statutory law concerning the «crime of piracy». Taiwan, the other main stakeholder of the Taiwan Strait should also amend its related criminal laws. Unlike China Mainland with no domestic law on the crime of piracy, the problem with China Taiwan is that several of its related criminal laws do not correlate with the 1982 UNCLOS definition of piracy. China Taiwan should adopt the UNCLOS definition, simplify its requirements for defining those acts that constitute the crime of piracy, and consider changing its «capital punishment ONLY» policy for the crime of piracy. After all, capital punishment cannot help demolish piracy. Instead, it might attract more. This theory have already been elaborated by many criminologists. It is needless for us to repeat it here.
More emphasis should be placed on prevention and «early detection» in anti-piracy actions. Experience has shown the limited utility of measures taken after the act of piracy has been committed. For example, according to a recent report, in the case of Gulf of Aden, the use of military means to free hijacked ships off the Somalia coast, though successful, resulted in reprisals. According to the same report, while military intervention can help deter piracy, it offers at best a temporary solution. On the other hand, the Combined Task Force (CTF 151) and EU NAVFOR had on various occasions managed to identify and intercept suspected pirate skiffs, thwarting potential attacks. «These successes all share the same trait - early detection - through patrol and reconnaissance activities by the maritime forces, though more often as a result of early reporting by the targeted vessel». The report indicates that «[i]t is vital that all ships comply with the Best Management Practice (BMP) guidelines as its first line of defense, but many vessels are still not doing so».
This report further brings to mind a point made at the beginning of this paper: One of the main reasons for fewer cases of piracy or armed robbery in the Taiwan Strait in recent years has been the deployment of strong military forces in this area by both China Mainland and Taiwan. In addition to the simple use of force, another option to ensure the success of anti-piracy activities would be a comprehensive plan of improved VTS (Vessel Traffic Services) scheme and the coastal radio service system in the Taiwan Strait area.
The VTS usually works with the port authorities in the vicinity of a harbor. Approaching ships should report to the port authorities with VHF channel 14 when they
are 20 nautical miles away from the destination port (usually in the contiguous zone area), and then 5 nautical miles away from it (territorial sea area) for the second time. The VTS center will identify the vessels with their AIS (Automated Information Systems) facilities, and help them enter into the harbor safely.
In Taiwan, various port authorities offer VTS services (with different names, though). But, they do not offer this service beyond their port vicinities, or in the EEZ parts of the Taiwan Strait. In Taiwan, only the Keelung Coast Radio Station offers radio surveillance, tracing and communication services for various ships in the Taiwan Strait area, including the EEZ area. Similarly, in China Mainland, only Xiamen Coast Radio Station provides radio surveillance, tracing and communication services in the Taiwan Strait area, including EEZ area.
The result of the lack of a comprehensive surveillance system in the Taiwan Strait creates the following problems:
(1) The possibility of unattended radio transmission gaps in the strait area, existing possibly in the extremely zigzag coastal corners along the western shore of the Taiwan Strait;
(2) Foreign ships not do not call at any ports along the Taiwan Strait will not report to the VTS centers when passing through the strait;
(3) Taiwan has not been invited to join the regional Tokyo Memorandum of Understanding on Port State Control and as a consequence is not able to obtain data from other port states' ship control (PSC) data. This creates an important gap in the ability of Taiwan to take preventive measures against vessels;
(4) Because there is one single centralized competent government agency in charge of the entire Taiwan Strait area, the administration of these VTS and radio station services has been localized and ineffective in both Taiwan and China Mainland [20];
(5) There has been very limited interchange between the China Mainland radio stations and the Taiwan stations.
If further improvements could be made to the VTS and coastal radio station services operating in the Taiwan Strait area to ensure that their services cover the entire region, including all ships whether or not they call at ports in the Strait, this could significantly improve the ability for the earlier detection and interception of acts of piracy (or armed robbery), and eventually preventing future occurrences.
Lastly, in addition to IMO ship reporting systems, in coordination with other strait user states, regional information centers that cover the South China Sea and the East China Sea should be established. Focal points should also be identified and notified to all ships approaching and leaving the Taiwan Strait area. These measures will serve to promote peaceful uses of the waters of the Taiwan Strait where instead of military vessels and pirates colorful private yachts and international merchant navigational vessels bringing trade and prosperity can sail side by side, safely without any threats of piracy or armed robberies.
REFERENCES
1. The Republic of China was established in 1912. After the People's Republic of China was established in 1949, the ROC has gradually lost other countries' recognition. With a few countries still recognizing it, the ROC exists in Taiwan area, and has maintained a constitution claiming that there is only one China.
2. The United Nations Convention on the Law of the Sea (UNCLOS), articles 37, 38(1) and (2).
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19. Currently there are 18 VHF transmitting/receiving stations, 8 MF and/or transmitting and 7 MF/HF receiving stations on the shore of Taiwan and its offshore islands. All these stations have only various radio equipments. All marine security information has to be released by the Keelong Coastal Radio Station. It has the equipments and capabilities to give vocal broadcastings whenever there is any major distress occurrence in the Taiwan Strait area. See: Lin Bin. Management of Maritime Safety Affairs in Taiwan. Journal of Taiwan Maritime Safety and Security Studies. 2010, no. 1, pp. 6-1.
