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Jakarta Post

Sinking ships legitimate to combat illegal fishing

  • Hikmahanto Juwana

    The Jakarta Post

Jakarta   /   Sat, December 6, 2014   /  10:40 am

President Joko '€œJokowi'€ Widodo has declared a war on illegal fishing in Indonesian waters. He has instructed the police, Navy and Maritime Affairs and Fisheries Ministry to sink 10 to 20 illegal ships.

The order was implemented on Friday as the Navy sank three boats flying Vietnamese flags in the waters of Anambas regency in Riau Islands after they had been captured for fish poaching.

Many, however, have asked whether there is a legal basis for the President'€™s stern instruction, which is unprecedented.

In fact the legal basis can be found under the 2009 Fisheries Law, which amended the same law promulgated in 2004. Under Article 69 paragraph 4 of the prevailing fisheries law it is stated that '€œInvestigators or fishery supervisors can take specific actions of burning and/or sinking foreign vessels based upon sufficient initial evidence.'€

In the elucidation of the article, '€œinitial evidence'€ refers to '€œpreliminary evidence to suspect the commissioning of fishery-related criminal acts by ships flying foreign flags, such as the absence of fish-catching permit letters and fishing licenses and clearly catching and/or transporting fish when entering the fishing zone of the Republic of Indonesia.'€

The law, therefore, does not arbitrarily justify the specific measure, but only allows it when investigators or fishery supervisors are confident the foreign vessels have committed crimes.

The sinking or burning of foreign ships has to be carried out in Indonesian fisheries territory. Under Article 5 of the law, the areas include Indonesian waters, Indonesian exclusive economic zones as well as the likes of rivers and lakes.

Article 69 paragraph 4 was only introduced in 2009 when the Fisheries Law was amended. Prior to that year, the Indonesian authorities did not have the power to sink or burn foreign ships caught fishing illegally. In those days, the foreign ships had to be confiscated first and go through a court hearing before the panel of judges decided whether the ships should be auctioned or sunk. The process was time consuming and probably did not have a sufficient deterrent effect.

For that reason, the government learned from other countries, in particular Australia, and aspired to possessing the same power. The Australian authorities have the power to burn and sink foreign ships involved in illegal actions within the country'€™s jurisdiction.

Even though the authority to burn or sink foreign ships had been in place under the administration of then president Susilo Bambang Yudhoyono, the provision was not strictly enforced.

Now President Jokowi is fully enforcing the law as part of his maritime vision.

The question is, should Indonesia be worried about reactions, or perhaps retaliation, from its neighbors?

The answer would be no. There are at least five reasons.

First, if foreign ships and fishermen are involved in criminal or illegal acts in Indonesian waters, which country would dare to condone such illicit activities committed by its nationals? Fishing in Indonesian territory without a license is a crime under Indonesian law.

Second, the policy to burn down and/or sink foreign ships captured for illegal fishing is carried out in the territorial waters of Indonesia, not on the high seas.

Third, the Indonesian government sinks foreign ships committing criminal acts to enforce its national law. This is to say the government does not have any intention to provoke other states through the policy.

Fourth, if Indonesia does not take stern action against foreign ships committing fish poaching, then Indonesia will continue to suffer huge potential losses from the theft of its maritime resources. Illegal fishing is estimated to have inflicted Rp 300 trillion (US$24.6 billion) in state losses annually, a huge amount that would be enough to build basic infrastructure in disadvantaged regions.

Fifth, the humans aboard the foreign ships will be evacuated before they are sunk. This is to ensure human rights are respected in carrying out this policy.

Nevertheless, in order for the assertive policy not to spark a controversy and to maintain a good neighbor policy, it is recommended that the Foreign Ministry communicate the stiff policy to neighboring countries.

This can be done by inviting ambassadors of the states whose nationals are frequently caught fishing illegally in Indonesian fishery territory. It is expected that the ambassadors can report to their respective governments so that the Indonesian vessel-sinking policy can be passed on to local fishermen.

After all, the tough policy sends a strong message that Indonesia will keep sovereignty over its territory intact at all cost.

______________

The writer is professor of international law at the University of Indonesia, Jakarta.

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