The legitimacy of Indonesia’s ‘war on illegal fishing’ Gulardi Nurbintoro ;   The writer works at the Foreign Ministry; He is pursuing a PhD degree in juridical science at the University of Virginia, US

JAKATA POST, 07 Desember 2014

                                                                                                                       

The legendary Indonesian music band Koes Ploes once described the natural advantage of the country in the song “Kolam Susu” (milk pond). It was said that our land is heaven since we could cultivate sticks and stones to become plants (tongkat kayu dan batu jadi tanaman). They further implied that fishing was a relatively less-stressful activity since fish and shrimps would come to you directly (ikan dan udang menghampiri dirimu).  Obviously, nowhere on earth can you cultivate a stone to become a flower, neither do fish come to idle fishermen. Yet Indonesia does have abundant resources at sea that could and should be used for the greatest benefit and welfare of the people. Unfortunately, illegal fishing by foreign fishermen is one of the main marine problems Indonesia has yet to tackle. New Maritime Affairs and Fisheries Minister Susi Pudjiastuti has proposed a harsher treatment of foreign vessels fishing illegally in Indonesian territory — sinking foreign vessels caught in the act. The new policy is being applauded by many as a breakthrough to combat the problem. However, the government must be cautious to avoid diplomatic troubles. Indonesia should first and foremost have a strong legal basis to support its policies. The main legal reference would be the UN Convention on the Law of the Sea. Article 73 stipulates that a coastal state may take measures including boarding, inspection, arrest and judicial proceedings to ensure compliance with the laws and regulations in conformity with the convention. The same article further regulates that “arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security” and that “penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment [...] or any other form of corporal punishment”. The provision specifically regulates the rights of the coastal state in the exclusive economic zone. Hence, if illegal fishing is conducted in areas other than the exclusive economic zone, Indonesia as a coastal state can resort to other measures not regulated under Article 73. Indonesia, therefore, may sink a foreign vessel involved in illegal fishing in its waters. But it does not mean that Indonesia is allowed to take ultimate measures, such as sinking foreign vessels in the exclusive economic zone. The purpose of Article 73 is to set up certain guidelines for the coastal state in addressing violations of fisheries laws and regulations. Article 73 clearly does not prohibit Indonesia from taking other measures not mentioned in the provision. Indonesia’s policy is further justified under customary international law as a rule deriving from a decision of the Permanent Court of International Justice in 1928 regarding the Lotus case, in which the French steamer Lotus had collided with a Turkish vessel. The court ruled that a state may exercise jurisdiction and apply a wide range of discretions unless otherwise prohibited under international law. Every state remains free to adopt principles which it regards as best and most suitable. Therefore, the new “war on illegal fishing” approach of exercising the ultimate act of sinking foreign vessels involved in illegal fishing is legitimate. It is, moreover, necessary to deter future culprits. Understandably, Indonesia will not sink every single foreign vessel without the conviction that a vessel has beyond reasonable doubt been illegally fishing and created a huge loss to Indonesia’s economy and marine environment. Indonesia would certainly uphold the principle of human rights and observe the safety of the fishermen on board. President Joko “Jokowi” Widodo has already instructed that the fishermen should be rescued first before sinking vessels. The policy, if carried out, will probably not please the country that falls “victim” to this policy. But this is the approach Indonesia must take to protect its economy, which has been suffering an annual loss of Rp 101.4 trillion (US$8.24 billion) from illegal fishing. This would ensure Indonesia remained sovereign in her own waters, and most importantly, as Jokowi stated in his inaugural address, open the path to restore the nation’s glory on the oceans — Jalesveva Jayamahe. ●