A legal review
of the ‘sink the vessel’ policy
Sunan J Rustam ; The writer, who obtained his doctorate degree
in international law from The Maurer School of Law, Indiana University
Bloomington,
works for the Foreign Affairs Ministry
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JAKATA
POST, 06 Desember 2014
President
Joko ‘”Jokowi” Widodo’s recent statements in favor of sinking foreign vessels
suspected of illegal fishing arouses not only support but also critical
questions. Chief among the questions is the legality of such a policy and
whether it contradicts the 1982 United Nations Conventions on the Law of the
Sea (UNCLOS), to which Indonesia is a signatory.
Before
engaging in a discussion of legality, let us first discuss the background of
the policy. To begin with, the “sink the vessel” remark was a quick response
to the finding made by the current Indonesian Marine Affairs and Fisheries
Minister Susi Pudjiastuti.
The
finding was so chilling that a swift deterrent action seemed needed. The
finding discovered that at a certain time on a certain day, over 70 vessels
of 50 to 70 gross tonnage entered Indonesian waters.
These
vessels were not under the ministry’s vessel monitoring system and were
therefore suspected of conducting illegal fishing activities.
It is
estimated that the loss sustained specifically at that certain time of day in
a certain area of Indonesian waters
was close to US$1 million.
That sum
rises to nearly $100 billion in annual losses from illegal fishing in
Indonesia, based on the ministry’s official research.
For a
newly transformed maritime state that will rely heavily on maritime-related
resources, such losses are simply not acceptable.
Accordingly,
the policy was introduced to curb illegal fishing practices in Indonesia.
Coordinating Maritime Affairs Minister Indroyono Soesilo underlined the legal
basis relevant to the policy, i.e. article 69, paragraph 4, Law No. 45 2009
on fisheries.
According
to the article, subject to sufficient preliminary evidence, Indonesian
authorities may burn and/or sink foreign vessels suspected of illegal fishing
in an Indonesian fishing management area. The article, though, lacks a
definition of Indonesian fishing management areas, which could create legal
issues with the UNCLOS.
The
UNCLOS classifies seas into zones, each with its respective recognized
rights. The rule of thumb with UNCLOS zones and rights is that the farther
from the coast the lesser the rights. Indonesia, as an archipelagic state,
has full sovereignty over her territorial sea, internal waters and
archipelagic waters.
The
lesser rights or sovereign rights cover contiguous zones, exclusive economic
zones (EEZ) and continental shelves.
There
should be no question that the policy is intended for foreign vessels
suspected of conducting illegal fishing within the zones where Indonesia has
full sovereignty.
In fact,
as a matter of law, pursuit into other sea zones is allowed for alleged
violations taking place in fully sovereign waters.
Legal
questions arise if alleged illegal fishing carried out by foreign vessels
takes place in zones of sovereign rights, such as EEZ. Article 73 of the the
UNCLOS clarifies what measures may be taken to enforce laws and regulations
by the coastal state in EEZ and they do not include the sinking of vessels.
Under
the UNCLOS regime, enforcement in EEZ may include boarding, inspecting,
arrests and judicial proceedings. Penalties thereof may not include
imprisonment and other corporal punishment. Even bonds or security for prompt
release of arrested vessels and crews may be reasonable.
What may
become a hurdle for Indonesia in implementing the policy is the prompt
release obligation governed in paragraph 2 of article 73 of the UNCLOS.
Referral to article 292 concerning prompt release of vessels and crews
elaborates the possible mechanism should a dispute arise between a flag state
whose vessel is being detained and a coastal state.
The flag
state and coastal state are given ten days from the time of detention to
choose their forum. Failure to do so will automatically revoke the
application of forum selection under article 287 of the UNCLOS. Given that
Indonesia has not made any declaration under article 287, unless otherwise
decided, arbitration will be deemed as the forum.
The next
issue is not so much about Indonesia’s record in international dispute
settlement as the trend of case law concerning prompt release obligations.
At the
moment, Indonesia’s involvement in international dispute settlement is not
impressive. Perhaps the hardest lesson Indonesia has had to learn with regard
to international dispute settlement was that of the 2002 Sipadan-Ligitan case
when the International Court of Justice rejected Indonesia’s claim.
Another
occasion with a similar outcome was the 2000 Karaha Bodas case where the
arbitral tribunal fined Pertamina, a state-owned company, a substantial
amount of money as a consequence of its unilateral breach of contract.
Pertamina’s foreign bank accounts are currently still frozen.
In the
WTO mechanism, as of October 2014, Indonesia has been involved in 32 cases, either
as complainant, respondent or third party. Over half of the cases submitted
were ruled against Indonesia. The list could go on but the big picture is
clear.
Moving
to the trend of case law pertaining to prompt release obligations, decisions
of the International Tribunal on the Law of the Sea (ITLOS) may serve as a
useful reference. As of 2005, of seven prompt release obligation cases that
have been submitted before ITLOS, five were decided in favor of prompt
release of the detained vessels.
Nevertheless,
all hope is not lost. Indonesia can still achieve a deterrent effect by
increasing the amount of bonds for prompt release and penalties afterwards.
In
increasing the sum required, consideration, as ITLOS case law suggests,
should include the seriousness of the alleged offences, the penalties under
the law of the coastal state and the value of the vessel and cargo.
In conclusion, the “sink the vessel” policy is permissible for alleged
activity in Indonesia’s territorial sea, internal waters and archipelagic
waters. As for illegal fishing in EEZ or other sovereign rights zones,
Indonesia is under the obligation to follow the UNCLOS mechanism. ●
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