Indonesia's Maritime Governance

korean journal of international and comparative law 6 (2018) 134–171 brill.com/kjic

Indonesia’s Maritime Governance Law, Institutions and Cooperation

Hadyu Ikrami Research Associate, Centre for International Law, National University of Singapore [email protected]

Leonardo Bernard PhD Candidate, Australian National Centre for Ocean Resources & Security (ANCORS), University of Wollongong, Australia [email protected]

Abstract

Since President Joko Widodo took office in 2014, he has placed maritime governance at the top of his agenda, as evidenced by the introduction of his vision on Indonesia as a ‘global maritime fulcrum’. This article discusses how his administration has been working towards such a goal. First, it provides an overview of Indonesian laws related to maritime governance. Second, it looks at the institutions responsible for administering, enforcing, and/or applying those laws and how they have been performing their functions. Third, it explores how those institutions cooperate with external parties in four areas of Indonesia’s major interest at present: maritime security; safety of navigation; protection of the marine environment; and illegal, unreported, and unregulated fishing. Lastly, this article also discusses the challenges faced by the State in governing its maritime affairs and offers suggestions for a better maritime governance.

Keywords

Indonesia – maritime governance – maritime law – ocean law – Indonesian institutions – maritime cooperation

1 Introduction

Around Indonesia’s vast and sprawling chain of islands, the seas are the nation’s lifeblood. Indonesia’s President Joko Widodo fully understands this. Since his election in 2014, Widodo has placed maritime governance at the top of his priorities. He introduced the doctrine of Indonesia as a ‘global maritime fulcrum’, a grandiose plan to transform Indonesia into a maritime force that will connect the Pacific and Indian Oceans.1 This doctrine directs the government to focus on enhancing five elements: maritime culture, marine resources, maritime infrastructure and connectivity, maritime diplomacy and maritime defence.2 Widodo then appointed Susi Pudjiastuti as the Minister of Marine Affairs and Fisheries,3 who has not only revamped the legal and institutional framework for marine and fisheries governance, but has also taken unprec- edented actions against illegal fishing, such as blowing up poaching vessels.4 In order to ensure smooth cooperation and communication between the dif- ferent agencies responsible for maritime affairs, Widodo also re-established the Coordinating Ministry for Maritime Affairs, which had functioned from 1964 to 1967.5 In light of the above, it is important to assess the interaction between law, institutions and cooperation in Indonesia’s maritime governance. For that purpose, this article looks at how the law in Indonesia is enforced and applied by

1 Rendi A. Witular, Jokowi Launches Maritime Doctrine to the World, the jakarta post, Nov. 13, 2014, available at http://www.thejakartapost.com/nws/2014/11/13/jokowi-launches -maritime-doctrine-world.html; Hadyu Ikrami, Indonesia’s Reform of Its Fisheries Law and Policy & Cooperation with ASEAN in Combating IUU Fishing, 2(2) Asia-Pacific Journal of Ocean Law and Policy 318 (2017) at 318. 2 Witular, supra note 1. 3 The Straits Times Indonesian Bureau, Indonesian President Joko Widodo Names 34-Member Cabinet, the straits times (Oct. 26, 2014), available at http://www.straitstimes.com/ asia/se-asia/indonesian-president-joko-widodo-names-34-member-cabinet; Ikrami, supra note 1, at 318. 4 See Ikrami, ibid, at 318–328. 5 Information and Legal Bureau, Serah Terima Jabatan Menteri Koordinator Bidang Kemariti- man Jakarta, 28 Juli 2016, Coordinating Ministry for Maritime Affairs (Jul. 30, 2016), available at https://maritim.go.id/serah-terima-jabatan-menteri-koordinator-bidang-kemaritiman -jakarta-28-juli-2016/; see Presidential Regulation No. 165 of 2014 on the Arrangement of the Duties and Functions of the Working Cabinet (State Gazette Year 2014 No. 339), arts. 1(1)(4) & 15; see Presidential Regulation No. 7 of 2015 on the Organisation of State Ministries (State Gazette Year 2015 No. 8), art. 1(4); see Presidential Regulation No. 10 of 2015 on the Coordinat- ing Ministry for Maritime Affairs (State Gazette Year 2015 No. 11).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 136 Ikrami and bernard governmental institutions, and subsequently explores how those institutions cooperate with external parties in matters of common concern.

2 Overview of Legal and Policy Framework

Indonesia is a party to the United Nations Convention on the Law of the Sea (“unclos”);6 International Convention for the Safety of Life at Sea, as amended (“solas”);7 Convention on the International Regulations for Pre- venting Collisions at Sea, as amended (“colreg”);8 International Convention for the Prevention of Pollution from Ships, as amended by its Protocol of 1978 (“marpol”), as well as Annexes iii, iv, and v of the Convention;9 International Convention on Civil Liability for Oil Pollution Damage (“clc”) and its Protocol of 1992;10 and the Food and Agriculture Organization Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregu- lated Fishing (“psma”).11 Indonesia has also enacted national legislation implementing some of the above treaties, such as Law No. 6 of 1996 on Indonesian Waters (“Waters Law”),12 Government Regulation No. 36 of 2002 relating to innocent passage (“Innocent Passage Regulation”),13 and Government Regulation No. 37 of 2002 relating to the passage through Indonesia’s partially designated archipelagic

6 United Nations Convention on the Law of the Sea, Status as at: 25-05-2016 05:00:38 EDT, Unit- ed Nations Treaty Collection, available at https://treaties.un.org/pages/ViewDetailsIII .aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&lang=en. 7 Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or its Secretary-General Performs Depository or other Functions, International Maritime Organization (Dec. 8, 2017), available at http://www.imo.org/en/ About/Conventions/StatusOfConventions/Documents/Status%20-%202017.docx.pdf, at 15. 8 Ibid , at 92. 9 Ibid , at 110, 116, 119 & 123. 10 Ibid, at 250 & 268. 11 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Food and Agriculture Organization (last updated Nov. 16, 2017), available at http://www.fao.org/fileadmin/user_upload/legal/docs/037s-e.pdf [PSMA], at 2. 12 Law No. 6 of 1996 on Indonesian Waters (State Gazette Year 1996 No. 73, Supplementary State Gazette No. 3647) [Waters Law]. 13 Government Regulation No. 36 of 2002 on the Rights and Obligations of Foreign Vessels in Making an Innocent Passage through Indonesian Waters (State Gazette Year 2002 No. 70, Supplementary State Gazette No. 4209) [GR 36/2002].

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 137 sea lanes (“Archipelagic Sea Lanes Passage Regulation”),14 all of which implement unclos;15 and Government Regulation No. 21 of 2010 on the Protection of the Maritime Environment,16 which implements the clc and its Protocol of 1992.17 Indonesia’s maritime governance is based on numerous pieces of legislation, varying from those relating to maritime law and maritime crimes to maritime zones and maritime resources. Maritime law is primarily embodied under Law No. 17 of 2008 on Shipping (“Shipping Law”).18 This Law contains 355 articles, which govern both public and private aspects of maritime law, including safety of navigation, maritime security, seaworthiness, credit and security, port affairs and protection of the marine environment.19 The Ship- ping Law established an institutional framework for the Sea and Coast Guard20 and Port Masters,21 in addition to creating a Shipping Information System.22 The Shipping Law also provides penal sanctions for violations of various provisions of the Law, ranging from six months’ imprisonment and a fine of idr 100 million (±usd 7,300)23 to life imprisonment24 and a fine of up to idr 2.5 billion (±usd 183,500).25 Maritime crimes, such as piracy and hijacking of

14 Government Regulation No. 37 of 2002 on the Rights and Obligations of Foreign Vessels and Aircraft in Making an Archipelagic Sea Lanes Passage through the Designated Archi- pelagic Sea Lanes (State Gazette Year 2002 No. 71, Supplementary State Gazette No. 4210) [GR 37/2002]. Indonesia’s current archipelagic sea lanes were partially designated. Infra note 168. 15 These pieces of legislation govern various subject-matters, such as territorial waters, archipelagic waters, exclusive economic zone, innocent passage, and archipelagic sea lanes passage, in a very similar manner to how they are governed under unclos. 16 Government Regulation No. 21 of 2010 on the Protection of the Maritime Environment (State Gazette Year 2010 No. 27, Supplementary State Gazette No. 5109). 17 For instance, the wording of Article 30(2) of the said Government Regulation is mostly the same as the provision under Article vii(1) of the clc. 18 Law No. 17 of 2008 on Shipping (State Gazette Year 2008 No. 64, Supplementary State Gazette No. 4849) [Shipping Law]. 19 Ibid, Chapters vi–xiii. 20 Ibid, Chapter xvii. 21 Ibid, Chapter xi. 22 Ibid, Chapter xv. 23 These punishments may be imposed, for instance, on maritime transport operators who do not have their liabilities insured. Ibid, art. 292. 24 This punishment may be imposed on anyone who deliberately damages navigational or communication instruments or facilities resulting in a marine incident and death. Ibid, art. 316(1)(c). 25 This may be imposed on those who discharge waste, ballast water, and other substances into the water resulting in a death. Ibid, art. 325(3).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 138 Ikrami and bernard vessels, are proscribed and punishable under Articles 438–479 of the Penal Code.26 Regulation of maritime zones and passage is enshrined in various pieces of legislation, including Law No. 32 of 2014 on Ocean Affairs (“Ocean Law”),27 the Waters Law,28 Law No. 5 of 1983 on the Indonesian Exclusive Economic Zone,29 the Innocent Passage Regulation,30 and the Archipelagic Sea Lanes Passage Regulation.31 Protection of the marine environment is governed, for instance, under Law No. 32 of 2009 on the Protection and Management of the Environment32 and Government Regulation No. 19 of 1999 on the Control of Marine Pollution and/or Degradation.33 The management of coastal areas and small islands is regulated under Law No. 27 of 2007, as amended by Law No. 1 of 2014 (“Coastal Law”).34 In the fisheries sector, Law No. 31 of 2004 on Fisheries, as amended by Law No. 45 of 2009 (“Fisheries Law”),35 is the primary legislation and is supple- mented by numerous ministerial regulations.36 Under the Fisheries Law, foreign-flagged vessels may apply for licenses to fish in the Indonesian exclusive economic zone (“eez”).37 However, Minister Pudjiastuti has enacted a series of regulations since 2014, which prohibit the granting or renewal of

26 Indonesian Penal Code (Wetboek van Strafrecht), Staatsblad 1915 No. 732, Chapter xxix on Maritime Crimes [Penal Code], arts. 438–479. 27 Law No. 32 of 2014 on Ocean Affairs (State Gazette Year 2014 No. 294, Supplementary State Gazette No. 5603) [Ocean Law]. 28 Waters Law, supra note 12. 29 Law No. 5 of 1983 on the Indonesian Exclusive Economic Zone (State Gazette Year 1983 No. 44, Supplementary State Gazette No. 3260). 30 GR 36/2002, supra note 13. 31 GR 37/2002, supra note 14. 32 Law No. 32 of 2009 on the Protection and Management of the Environment (State Gazette Year 2009 No. 140, Supplementary State Gazette No. 5059). 33 Government Regulation No. 19 of 1999 on the Control of Marine Pollution and/or Degra- dation (State Gazette Year 1999 No. 32, Supplementary State Gazette No. 3816). 34 Law No. 27 of 2007 on the Management of Coastal Areas and Small Islands (State Gazette Year 2007 No. 84, Supplementary State Gazette No. 4739), as amended by Law No. 1 of 2014 (State Gazette Year 2014 No. 2, Supplementary State Gazette No. 5490). 35 Law No. 31 of 2004 on Fisheries (State Gazette Year 2014 No. 118, Supplementary State Gazette No. 4433), as amended by Law No. 45 of 2009 (State Gazette Year 2009 No. 154, Supplementary State Gazette No. 5073) [Fisheries Law]. 36 For example, Minister of Marine Affairs and Fisheries Regulation [mmaf Regulation] No. 57/PERMEN-KP/2014 concerning the prohibition on transhipment; mmaf Regula- tion No. 35/PERMEN-KP/2015 concerning the protection of human rights in the fishing industry. 37 Fisheries Law, supra note 35, art. 27(2).

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 139 fishing licenses for all vessels built outside Indonesia.38 This means foreign- flagged vessels and Indonesian-flagged vessels that were built outside the country are now banned from fishing in Indonesian waters and eez.39 In 2016, the government also revised the Negative Investment List, officially closing the capture fisheries sector to foreign investment.40 However, under Indonesian constitutional law, government or ministerial regulations cannot amend a Law passed by the House of Representatives.41 This is why, in early 2017, the Minis- try of Marine Affairs and Fisheries (“mmaf”) started discussion with the House to revise the Fisheries Law.42 The above pieces of legislation are complemented by Indonesia’s Ocean Policy, the government’s official policy document on maritime affairs that was adopted in February 2017.43 The document includes two annexes: the National Document of the Indonesian Ocean Policy,44 which aims to provide an “explanatory narrative of the ocean policy”;45 and the Plan of Action of the

38 mmaf Regulation No. 58/PERMEN-KP/2014 on the Discipline of Civil Servants at the mmaf in Enforcing Policies on Moratorium of Fishing Licenses, Transhipment at Sea, and Employment of Foreign Shipmasters and Sailors, art. 3(a)(1)–(2); mmaf Regula- tion No. 56/PERMEN-KP/2014 on the Moratorium on Capture Fisheries Licenses in the Indonesian Fishery Management Territory, as amended by mmaf Regulation No. 10/ PERMEN-KP/2015, arts. 1 & 2. Minister Pudjiastuti decided not to extend the moratorium after it ended on October 31, 2015. Irene Inriana, Menteri Susi Pastikan Tak Perpanjang Moratorium Kapal, cnn indonesia (Nov. 3, 2015), available at http://www.cnnindone sia.com/ekonomi/20151103135800-92-89149/menteri-susi-pastikan-tak-perpanjang-mor atorium-kapal/. However, by virtue of the mmaf Secretary-General Letter No. B-195/ SJ/11/2016 dated February 11, 2016, the moratorium has, in effect, become a permanent ban. kkp News, Penghapusan Kapal Eks Asing dari Daftar Kapal Indonesia, Ministry of Marine Affairs and Fisheries Republic of Indonesia (Jun. 17, 2016), available at http://kkp .go.id/2016/06/17/penghapusan-kapal-eks-asing-dari-daftar-kapal-indonesia/. 39 Ibid. 40 Presidential Regulation No. 44 of 2016 on the List of Businesses which are Closed and Conditionally Open to Investment, Annex iii at 13. 41 See Law No. 12 of 2011 on the Formation of Legislation (State Gazette Year 2011 No. 82, Supplementary State Gazette No. 5234), arts. 7, 8 & 9(2). 42 KKP – DPR Bahas Rencana Revisi UU Perikanan, kkp news (Feb. 3, 2017), available at https://news.kkp.go.id/index.php/kkp-dpr-bahas-rencana-revisi-uu-perikanan/. 43 Presidential Regulation No. 16 of 2017 on Indonesian Ocean Policy (State Gazette Year 2017 No. 32), as translated into English by the Coordinating Ministry for Maritime Affairs, available at https://maritim.go.id/konten/unggahan/2017/07/offset_lengkap_KKI_eng -vers.pdf [PP 16/2017]. 44 Ibid, Annex i. 45 PP 16/2017, supra note 43, art. 1(3).

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Indonesian Ocean Policy 2016–2019, which aims to “implement various pro- grams and activities in ocean areas”.46

3 Institutional Framework

Maritime and ocean laws are administered, enforced and/or applied by at least twenty-one State organs: eighteen executive agencies, two judicial organs, and a quasi-judicial body. Their roles and functions are described in this section.

3.1 The Executive The primary responsibility for regulating matters pertaining to the seas, as well as administering and monitoring the implementation of ocean law is assigned to the mmaf, which is also in charge of managing the country’s fisheries.47 Besides the mmaf, other ministries that are mandated to adopt regulations concerning the seas and oversee their implementation are the Ministry of Energy and Mineral Resources48 and the Ministry of Tourism.49 The works of these three ministries, the Ministry of Transportation, and “other institutions deemed necessary” are coordinated by the Coordinating Ministry for Maritime Affairs.50 The Ministry of Transportation, especially its Directorate-General of Sea Transportation, is the main administrator of shipping affairs.51 It has the power to enact regulations, grant licenses, and oversee the implementation of the Shipping Law in relation to marine transportation, port affairs, shipping and seafarers, navigation, and the Sea and Coast Guard.52 Each of these

46 Ibid, art. 1(4). The Plan of Action, available at http://bnpp.go.id/document/produk_ hukum/2017/perpres/PERPRES_NO_16_2017_L2.pdf. 47 Presidential Regulation No. 63 of 2015 on the Ministry of Marine Affairs and Fisheries (State Gazette Year 2015 No. 111), as amended by Presidential Regulation No. 2 of 2017 (State Gazette Year 2017 No. 5), art. 3. 48 See Presidential Regulation No. 68 of 2015 on the Ministry of Energy and Mineral Resourc- es (State Gazette Year 2015 No. 132), as amended by Presidential Regulation No. 105 of 2016 (State Gazette Year 2016 No. 289), art. 3. 49 See Presidential Regulation No. 19 of 2015 on the Ministry of Tourism (State Gazette Year 2015 No. 20), art. 3. 50 Presidential Regulation No. 10 of 2015 on the Coordinating Ministry for Maritime Affairs (State Gazette Year 2015 No. 11), art. 4. 51 See Presidential Regulation No. 40 of 2015 on the Ministry of Transportation (State Gazette Year 2015 No. 75), art. 13. 52 Shipping Law, supra note 18, arts. 1(64), 9(6), 28(1)(c), 71(4), 116(2), 133, 172(1) & 276(3), among other provisions.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 141 subject-matters is dealt with by a Directorate within the Directorate-General.53 The Directorate-General of Sea Transportation is also Indonesia’s focal point in the International Maritime Organization (“imo”).54 Other executive organs dealing with maritime and ocean laws include the Ministry of Finance – in particular, its Directorate-General of Customs and Excise – which is responsible for State revenues generated from customs and excise related to the shipping industry;55 Ministry of Environment and Forestry, which is responsible for preventing and curbing marine pollution;56 Ministry of Law and Human Rights, which cooperates with other ministries in draft- ing maritime-related Laws for the President’s approval;57 Ministry of Foreign Affairs, which engages with other countries in promoting and protecting Indo- nesia’s maritime interests;58 Ministry of Home Affairs, whose responsibilities include determining State boundaries, including those surrounding the outer- most islands,59 and has a sub-directorate tasked with synchronising the works of provincial/municipal governments in marine affairs and fisheries;60 and the Ministry of Defence, which has the power to formulate defence regulations and policies.61

53 Ministry of Transportation Regulation [MOT Regulation] No. PM 189 of 2015 on the Organisation and Procedure of the Ministry of Transportation (State Gazette Year 2015 No. 1844), as amended by MOT Regulation No. PM 86 of 2016 (State Gazette Year 2016 No. 1012), as amended by mot Regulation No. PM 44 of 2017 (State Gazette Year 2017 No. 816) [MOT Organisation and Procedure Regulation], art. 260. 54 Public Relations Division of the Directorate-General of Sea Transportation, Indonesia Kembali Calonkan Diri sebagai Anggota Dewan IMO Periode 2018–2019, Directorate- General of Sea Transportation (Feb. 17, 2017), available at http://hubla.dephub.go .id/berita/Pages/INDONESIA-KEMBALI-CALONKAN-DIRI-SEBAGAI-ANGGOTA- DEWAN-IMO-PERIODE-2018-2019.aspx. 55 See Ministry of Finance Regulation No. 234/PMK.01/2015 on the Organisation and Proce- dure of the Ministry of Finance (State Gazette Year 2015 No. 1926), art. 689. 56 Presidential Regulation No. 16 of 2015 on the Ministry of Environment and Forestry (State Gazette Year 2015 No. 17), arts. 3 & 22. 57 Presidential Regulation No. 68 of 2005 on the Procedure for Preparing Drafts of Laws, Government Regulations in Lieu of Laws, Government Regulations, and Presidential Reg- ulations, arts. 1(9), 7, 14–19. 58 See Presidential Regulation No. 56 of 2015 on the Ministry of Foreign Affairs (State Gazette Year 2015 No. 100), art. 5. 59 Ministry of Home Affairs Regulation No. 43 of 2015 on the Organisation and Procedure of the Ministry of Home Affairs (State Gazette Year 2015 No. 564), arts. 284 & 330. 60 Ibid, arts. 641(c), 650 & 651. 61 Presidential Regulation No. 58 of 2015 on the Ministry of Defence (State Gazette Year 2015 No. 102), art. 3.

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Maritime and ocean laws are enforced by a variety of executive organs. The State Police62 – especially its Marine Division – is responsible for law enforcement on all Indonesian waters,63 whereas the Navy64 is responsible for defence and law enforcement on all “waters under national jurisdiction in accordance with national and international laws”,65 suggesting that the Navy is also entrusted with safeguarding the Indonesian eez.66 Other agencies include the Maritime Security Agency (Badan Keamanan Laut/“Bakamla”), which is responsible for patrolling the Indonesian waters and other waters under Indo- nesia’s jurisdiction,67 and the Attorney-General’s Office, which is responsible for representing the government in legal affairs,68 including those relating to maritime and ocean laws. Another agency whose functions are closely related to the enforcement of maritime and ocean laws is the State Intelligence Agency, which collects and manages intelligence for national security purposes.69 The last nine agencies, in addition to the Ministry of Communications and Infor- matics and Ministry of the Empowerment of State Organs and Bureaucracy Reform are coordinated by the Coordinating Ministry for Politics, Law, and Security.70

62 The State Police is an executive organ because it answers to the President. Law No. 2 of 2002 on the State Police of the Republic of Indonesia (State Gazette Year 2002 No. 2), art. 8. 63 Chief of State Police Regulation No. 6 of 2017 on the Organisation and Procedure of the Organisational Units at the Headquarters of the State Police of the Republic of Indone- sia (State Gazette Year 2017 No. 558), Annex xvii, “Baharkam Polri”, at (1)(b)(3)(c)(5)(1) (iii)–(iv). 64 The Navy is an executive organ because the Indonesian Armed Forces are commanded by the President in matters requiring the deployment of military assets, and are “under the coordination” of the Ministry of Defence in matters pertaining to defence policy and strategy, as well as administrative support. Law No. 34 of 2004 on the Indonesian Armed Forces (State Gazette Year 2004 No. 127, Supplementary State Gazette No. 4439), art. 3. 65 Ibid, art. 9(b). 66 See Ristian Atriandi Supriyanto and Siswanto Rusdi, Maritime Security Agencies in Indo- nesia: More Not Merrier, rsis commentaries no. 001/2013 (Jan. 2, 2013), available at https://www.rsis.edu.sg/wp-content/uploads/2014/07/CO13001.pdf, at 1. 67 Ocean Law, supra note 27, art. 61; Presidential Regulation No. 178 of 2014 on the Maritime Security Agency (State Gazette Year 2014 No. 380) [PR 178/2014], art. 2. 68 Law No. 16 of 2004 on the Public Prosecutors’ Office of the Republic of Indonesia (State Gazette Year 2004 No. 67, Supplementary State Gazette No. 4401), art. 30(2). 69 Presidential Regulation No. 90 of 2012 on State Intelligence Agency (State Gazette Year 2012 No. 220), as amended by Presidential Regulation No. 73 of 2017 (State Gazette Year 2017 No. 168), art. 3; Law No. 27 of 2011 on State Intelligence (State Gazette Year 2011 No. 105; Supplementary State Gazette No. 5249), art. 1(1). 70 Presidential Regulation No. 43 of 2015 on the Coordinating Ministry for Politics, Law, and Security (State Gazette Year 2015 No. 83), art. 4; PR 178/2014, supra note 67, art. 1(1).

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Enforcement of fisheries law is carried out by the Fishery Supervisors within the purview of the mmaf Directorate-General of the Monitoring of Marine and Fishery Resources.71 The Fishery Supervisors have the authority to carry firearms, arrest and detain ships and/or individuals, take them to the nearest port for further questioning and/or burn vessels that have committed violations of the Fisheries Law.72 The Fishery Supervisors may also be equipped with Fishery Monitoring Ships.73 In 2015, President Widodo strengthened the institutional framework for combating illegal fishing by establishing the Task Force to Eradicate Illegal Fishing (“Illegal Fishing Task Force”), which is answerable directly to the President.74 It is headed by the Minister of Marine Affairs and Fisheries and is composed of the heads or senior officials of the Navy, Bakamla, State Police, and Attorney- General’s Office.75 The Task Force is not a new institution, but rather a unit in which those institutions are responsible for working in coordination with each other and with other relevant agencies76 to combat illegal and unreported fishing.77 Such a responsibility includes coordinating the deployment of those institutions’ assets, technology and human resources,78 as well as coordinating the exchange of data and information between them.79

3.2 The Judiciary Judicial application and interpretation of maritime and ocean laws are carried out by the Supreme Court and the Courts within its purview, as well as the Constitutional Court. The Supreme Court, which is responsible for hear- ing final appeals and conducting certain judicial reviews oversees the District Courts, which serve as courts of first instance, and the High Courts, which act

71 mmaf Regulation No. 17/PERMEN-KP/2014 on the Work of the Fishery Supervisors (State Gazette Year 2014 No. 528), arts. 1(20), 3(3)–(4), 18(1)&(3), 19; mmaf Regulation No. 6 of 2017 on the Organisation and Procedure of the Ministry of Marine Affairs and Fisheries, arts. 536–537. 72 Fisheries Law, supra note 35, art. 69. 73 Ibid, art. 66C(2). 74 Presidential Regulation No. 115 of 2015 on the Task Force to Eradicate Illegal Fishing (State Gazette Year 2015 No. 235) [PR 115/2015], art. 1. 75 Ibid, arts. 1(2) & 4(1). 76 They include the Ministry of Transportation, Ministry of Finance, Centre for Reports and Analysis of Financial Transactions, State Intelligence Agency, and PT Pertamina (state- owned company trading in oil and gas). PR 115/2015, supra note 74, arts. 2(1) & 3(b). 77 PR 115/2015, ibid, arts. 2–3. 78 Ibid, art. 2(1). 79 Ibid, art. 3(b).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 144 Ikrami and bernard as appellate courts.80 The Supreme Court also oversees the Fishery Courts, which are special courts positioned within the District Courts.81 The Fishery Courts are vested with the power to hear and decide upon criminal cases in accordance with the Fisheries Law.82 While the aforementioned Courts exam- ine primarily contentious cases, the Constitutional Court has the power to hear and decide upon questions of the constitutionality of Laws.83

3.2.1 Supreme Court and the Courts within Its Purview The Supreme Court and the lower Courts have decided upon a number of criminal cases where defendants had been charged based on the Penal Code and/ or the Shipping Law. For instance, in 2007, the District Court of Kuala Tungkal found an accused guilty of ‘coastal piracy’,84 defined under the Penal Code as violent acts committed by a vessel on Indonesian waters against another vessel or people or property on board.85 The defendant was sentenced to seven years’ imprisonment.86 The Courts have not only sentenced those who committed violence against ships, but also those who have failed to comply with seaworthiness requirements. For instance, in January 2016, the Mataram District Court found an accused guilty of navigating a ship despite the Port Master’s warning that the ship was unseaworthy for not having life-saving equipment and first-aid kit.87

80 Law No. 2 of 1986 on the General Courts (State Gazette Year 1986 No. 20, Supplemen- tary State Gazette No. 3327), as amended by Law No. 8 of 2004 (State Gazette Year 2004 No. 34, Supplementary State Gazette No. 4379), as amended by Law No. 49 of 2009 (State Gazette Year 2009 No. 158, Supplementary State Gazette No. 5077), arts. 3 & 6; Law No. 14 of 1985 on the Supreme Court (State Gazette Year 1985 No. 73, Supplementary State Gazette No. 3316), as amended by Law No. 5 of 2004 (State Gazette Year 2004 No. 9, Supplementary State Gazette No. 4359), as amended by Law No. 3 of 2009 (State Gazette Year 2009 No. 3, Supplementary State Gazette No. 4958), arts. 28(1), 31–31A. 81 Fisheries Law, supra note 35, art. 71(2) & (4). 82 Ibid, arts. 71 & 71A. 83 Law No. 24 of 2003 on the Constitutional Court (State Gazette Year 2003 No. 98, Supple- mentary State Gazette No. 4316), as amended by Law No. 8 of 2011 (State Gazette Year 2011 No. 70, Supplementary State Gazette No. 5226), art. 10. 84 Public Prosecutor v. Komarudin AKA Kama bin Mading, Judgment of the District Court of Kuala Tungkal No. 98/Pid.B/2007/PN. Ktl (28 Jun. 2007), available at https://putusan .mahkamahagung.go.id/putusan/db05b33cc45b611a1eb902b81af1d26f, at 32. 85 Penal Code, supra note 26, art. 439(1). 86 Public Prosecutor v. Komarudin, supra note 84. 87 Public Prosecutor v. I Gusti Ketut Gunawan, Judgment of the Mataram District Court No. 374/Pid.Sus/2015/PN Mtr (Jan. 14, 2016), available at https://putusan.mahkamaha gung.go.id/putusan/2049beaca972868c3fba9823dfdcbfab, at 58–60.

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The court convicted him pursuant to Article 302(1) of the Shipping Law, which forbids a ship’s captain from knowingly navigating an unseaworthy ship.88 He was consequently sentenced to six months’ imprisonment.89 The Fishery Courts, which were established in 200490 but only started functioning in 2007,91 have also handed down hefty punishments in a number of cases. For instance, in 2013, the Tanjung Pinang Fishery Court, one of the ten Fishery Courts currently functioning in the country92 sentenced a Vietnamese national who had fished in the Indonesian eez without a license to pay a fine of idr 1 billion (±usd 73,000).93 The Court also confiscated his ship and equipment, and ordered that his fishing gear be destroyed.94 At the appeal stage, the Pekanbaru High Court essentially upheld this judgment, but altered the order to pay the fine such that if the convict could not pay it, he would serve four months in prison.95 The Fishery Courts do not only hear cases on illegal fishing, but also on fishing activities that harm the environment. In January 2017, the Fishery Court of Medan convicted an individual of deliberately using fishing gear that impaired and damaged the sustainability of fishery resources, a crime punishable under the Fisheries Law.96 He had been fishing using a beam trawl,97 a type of fishing

88 Ibid, at 63. 89 Ibid. 90 Fisheries Law, supra note 35, art. 71. The Courts were established under the original Fish- eries Law of 2004. 91 Peresmian Pengadilan Perikanan pada Pengadilan Negeri Ambon, Sorong, dan Merauke, data tpp nasional (Dec. 17, 2014), available at https://data-tppnasional.kkp.go.id/ read/peresmian-pengadilan-perikanan-pada-pengadilan-negeri-ambon-sorong -dan-merauke. 92 The other Fishery Courts are located in the District Courts of North Jakarta, Tual, Bitung, Medan, Pontianak, Ranai, Ambon, Sorong, and Merauke. Ketua MA Resmikan Peradilan Perikanan, hukumonline.com (Dec. 11, 2014), available at http://www.hukumonline .com/berita/baca/lt54896e51643d2/ketua-ma-resmikan-peradilan-perikanan. 93 Public Prosecutor v. Pham Phu Quoc, Judgment of the Tanjung Pinang Fishery Court No. 03/Pen.PID.Sus/Prkn/2013/PN.TPI (Jul. 2, 2013), available at https://putusan.mahka mahagung.go.id/putusan/7906855208e93a5fdbf95bc7e3484cfd, at 22. 94 Ibid. 95 Public Prosecutor v. Pham Phu Quoc, Judgment of the Pekanbaru High Court No. 181/ PID.SUS/2013/PTR (Jan. 8, 2014), available at https://putusan.mahkamahagung.go.id/ putusan/1f1b682add99116003ebd8a3ccfd64c5, at 18–19. 96 Public Prosecutor v. Isa Maulidin AKA Muhammad Iqbal AKA Lidin, Judgment of the Medan Fishery Court No. 21/Pid.Sus-PRK/2016/PN medan (Jan. 10, 2017), available at https://putusan.mahkamahagung.go.id/putusan/6758c5ebf135c7e5b80006d33ee1f116. 97 Ibid.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 146 Ikrami and bernard gear prohibited under mmaf Regulation No. 2/PERMEN-KP/2015.98 Conse- quently, the Court sentenced him to five months’ imprisonment and ordered that his ship and fishing gear be destroyed.99 The Medan High Court subsequently increased the prison sentence to six months, while upholding the rest of the judgment.100 The Prosecutor’s appeal for the six months’ prison sentence to be increased was dismissed by the Supreme Court.101

3.2.2 Constitutional Court The Constitutional Court has handed down a number of judgments regarding the Shipping Law and the Coastal Law. In one of those cases, the Constitu- tional Court was faced with the question of whether Article 90(3)(g) of the Shipping Law102 was discriminatory and created monopoly by PT Pelindo – a State owned company in charge of port affairs – and was therefore, contrary to the Constitution.103 The Court answered the question in the negative, holding that the said article allows any enterprise to engage in stevedoring services, as long as it complies with the Shipping Law.104 In another case, the Constitutional Court declared a number of provisions under the original Coastal Law unconstitutional, and consequently repealed them.105 In its 2011 judgment, the Court stated that various articles under the original Coastal Law giving the right to individuals, companies or adat

98 MMAF Regulation No. 2/PERMEN-KP/2015 on the Prohibition on the Use of Trawls and Seine Nets as Fishing Gear in the Fisheries Management Territory of the Republic of Indonesia (State Gazette Year 2015 No. 31). 99 Public Prosecutor v. Isa Maulidin, supra note 96. 100 Public Prosecutor v. Isa Maulidin AKA Muhammad Iqbal AKA Lidin, Judgment of the Medan High Court No. 50/PID.SUS-PRK/2017/PT MDN (3 Feb. 2017), available at https:// www.pt-medan.go.id/putusan/38pidsus2017pt_mdn_1487576178.pdf, at 11. 101 Public Prosecutor v. Isa Maulidin AKA Muhammad Iqbal AKA Lidin, Judgment of the Indonesian Supreme Court No. 859 K/Pid.Sus/2017 (10 May 2017), available at https:// putusan.mahkamahagung.go.id/putusan/e00457c2f21491d3e1cb4c772d794514, at 7. 102 This Article essentially stipulates that port services in respect of ships, passengers, and goods include stevedoring services. 103 Judicial Review of Law No. 17 of 2008 on Shipping, Judgment of the Constitutional Court No. 74/PUU-VIII/2010, available at http://www.mahkamahkonstitusi.go.id/public/ content/persidangan/putusan/putusan_sidang_74%20PUU%202010_telah%20BACA .pdf, at 92–93, paras. 3.17–3.18. 104 Ibid, at 93–97, paras. 3.19–4.3 & 5. 105 Judicial Review of Law No. 27 of 2007 on the Management of Coastal Areas and Small Islands, Judgment of the Constitutional Court No. 3/PUU-VIII/2010, available at http:// www.mahkamahkonstitusi.go.id/public/content/persidangan/putusan/putusan_sidang_ Nomor%203%20PUU%20pesisir%202010-TELAH%20BACA.pdf.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 147 communities106 to exploit coastal waters for an extendable period of twenty years were in violation of the Constitution.107 The Court was of the view that these provisions would enable companies and individuals with financial power to dominate the exploitation of coastal waters, thereby wiping out traditional fishermen and indigenous people.108 The Court not only struck down the three articles of the Coastal Law that the applicants had petitioned to rescind, but also eleven other articles, even though the applicants had not asked the Court to revoke them.109 As a consequence of this judgment, the government revised the original Coastal Law and adopted Law No. 1 of 2014 as the amendment thereto.

3.3 Quasi-Judicial Body The Shipping Law established the Court of Shipping Affairs (Mahkamah Pelayaran).110 This Court is charged with investigating maritime incidents and enforcing seafarers’ code of ethics.111 Incidents that the Court has jurisdiction over include ship collisions, shipwrecking and fire on board.112 In investigating these incidents, the Court initially relies on preliminary evidence supplied by port masters,113 but subsequently acts independently, since it may summon ships’ captains, other crew members and/or government officials in charge of navigational safety.114 Despite its name, the Court is in fact, not a court of law. It is part of the executive organ, under and answerable to the Minister of Transportation.115 Many of its functions are more similar to those of a fact-finding commission116 or an

106 Adat communities practice adat laws, which are bodies of laws derived from indigenous/ native customs. See Yetty Komalasari Dewi et al., Indonesian Legal System 2005, Paulus E. Lotulung et al., (Ed.), ASEAN Law Association – Legal Systems in ASEAN (Mar. 2005), available at https://www.aseanlawassociation.org/legal-indonesia.html, at 34–42. 107 Judicial Review of Law No. 27 of 2007, supra note 105, at 158–165, paras. 3.15.5–3.15.10. 108 Ibid. 109 Ibid, at 165–168, paras. 3.15.11–4.3 & 5. 110 Shipping Law, supra note 18, art. 250. 111 Ibid, art. 251. 112 Ibid, arts. 252 & 245; Minister of Transportation Regulation No. KM.55 of 2006 on the Procedure for Investigation into Marine Incidents, art. 2(2); Government Regulation No. 1 of 1998 on the Investigation into Marine Incidents (State Gazette Year 1998 No. 1, Supple- mentary State Gazette No. 3724), art. 2(2). 113 Shipping Law, supra note 18, arts. 220(1)–(2) & 221(3). 114 Ibid, art. 254. 115 Ibid, arts. 250(1) and 1(64); Decision of the Minister of Transportation No. KM 15 of 1999 on the Organisation and Procedure of the Court of Shipping Affairs, art. 1(1). 116 See infra notes 124–128 and accompanying text.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 148 Ikrami and bernard ethics commission,117 and its decisions are advisory and/or administrative in nature.118 The Court has hardly applied the substantive law in great detail, in stark contrast with the discussion of facts, thereby showing that the Court’s role is closer to that of a fact-finding agency.119 The only judicial power that the Court has is to decide whether crew members are responsible for incidents on the ground of ‘fault’ or ‘negligence’,120 which demonstrates its quasi-judicial nature. However, the Shipping Law is silent on how the Court should perform its function in assessing the defendant’s responsibility. It does not, for instance, give guidance as to whether the Court should apply the criminal or civil standard of proof. In practice, the court largely refers to Chapter iii of the Second Book of the Commercial Code on the rights and obligations of ships’ captains, crew members, and passengers.121 In cases involving foreign-flagged vessels and/or foreign crew, the Court also refers to treaties to which Indonesia is a party, such as unclos and colreg.122 For example, in April 2017 the Court decided upon a case concerning an explosion and fire aboard KM Ise Baru – an Indonesian-flagged vessel – which caused the ship to sink in the waters off Surabaya, East Java.123 In its judgment, the Court extensively discussed the facts leading up to the incident, the causes and the crew’s rescue efforts.124 However, when assessing the responsibility of the ship’s captain, the Court only briefly cited some provisions of the Commer- cial Code.125 The Court did not elaborate those provisions and subsequently

117 See supra note 111. 118 See infra note 129–131 and accompanying text. 119 See infra notes 124–128 and accompanying text. 120 Shipping Law, supra note 18, art. 253(1)(a). 121 Indonesian Commercial Code (Wetboek van Koophandel voor Indonesië), Staatsblad 1847 – 23, Second Book, Chapter iii, arts. 341–394a. 122 See Case concerning Collision between MV. Vishva Prerna and TK. Sahabat Kapuas Man- diri XXXII while Towed by KT. Mega Prima II, Judgment of the Court of Shipping Affairs No. HK.2010/48/XII/MP.14 (Dec. 19, 2014), available at http://mahpel.dephub.go.id/ putusan/_shared/upload/putusan/pdf/e8ea60f218dd75c5d5b1b8de7f15ab6b.pdf [Vishva Prerna Case], at 32–34; see Case concerning Collision between MT. Norgas Cathinka and KMP. Bahuga Jaya, Judgment of the Court of Shipping Affairs No. HK.2010/34/XII/ MP.12 (Dec. 11, 2012), available at http://mahpel.dephub.go.id/putusan/_shared/upload/ putusan/pdf/b80d169697b44c15c993978102ecc46b.pdf [Norgas Cathinka Case], at 603– 607, 610–612. 123 Case concerning Fire and Sinking of KM. Ise Baru, Judgment of the Court of Shipping Affairs No. HK.210/12/IV/MP.17 (Apr. 3, 2017), available at http://mahpel.dephub.go.id/ putusan/_shared/upload/putusan/pdf/d93058070f40c625066f30af30ce7d9c.pdf. 124 Ibid, at 27–32. 125 Ibid, at 32–34.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 149 decided that the captain “had not fully complied with [the requirements for] good seamanship”.126 In a 2012 judgment concerning the collision between MT Norgas Cathinka, a Singaporean-flagged vessel and kmp Bahuga Jaya, an Indonesian-flagged vessel, the Court also examined the facts in great detail, such as whether the ships’ speed and distance, as well as the angle of the rotation that one of them made to avoid the other, showed that the crew had taken all measures necessary to avoid collision.127 In this case, the Court applied the relevant provisions of colreg; however, its legal analysis is significantly briefer than its examina- tion of facts.128 The decisions of the Court might strike many as being very lenient. It is only empowered to recommend administrative penalties to the Minister of Transportation,129 and those punishments are only limited to warnings or temporary revocation of mariner licenses.130 In some cases where the Court attributed the responsibility for an incident to foreign crew, it did not even hand down any punishment, but merely transferred a copy of its judgment to the embassy of the country that issued the mariner’s certificate and left the matter to that country’s discretion.131 The functions of the Court in some ways overlap with those of the Supreme Court and the Courts within its purview, as well as the National Transportation Safety Committee. While the Court of Shipping Affairs has the power to determine the administrative liability of mariners,132 the Supreme Court and its subordinate Courts may also decide on the mariners’ civil and criminal liabilities. The National Transportation Safety Committee also has the competence to investigate marine incidents, despite not having the power to determine any liability.133 These concurring powers and competences may easily result in contradictory findings.

126 Ibid, at 34. 127 Norgas Cathinka Case, supra note 122, at 597–611. 128 See ibid, at 603–607, 610–612. 129 Shipping Law, supra note 18, art. 253(1)(b). 130 Ibid, art. 253(2). 131 Norgas Cathinka Case, supra note 122, at 612, para. v; Vishva Prerna Case, supra note 122, at 34, para. vi. 132 Supra notes 111, 129–131 and accompanying text. 133 Shipping Law, supra note 18, art. 256(1)–(3).

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4 Maritime Cooperation

This section looks at maritime cooperation in four fields that represent Indone- sia’s major areas of interest at present: maritime security, safety of navigation, protection of the marine environment and illegal fishing.

4.1 Maritime Security Indonesia cooperates with other States and international organisations in maintaining and improving maritime security. A large number of maritime security cooperative frameworks that Indonesia has entered into are in the form of military patrols or exercises. In 2004, Indonesia, together with Malaysia and Singapore launched the Malacca Straits Patrol, a framework for cooperation to secure the Straits of Malacca and Singapore (“soms”).134 Thailand joined in 2008.135 This initiative not only consists of maritime and aerial patrols, but also established the Information Fusion Centre (“ifc”) based in Singapore to facilitate exchange of information and intelligence between the littoral States.136 The Malacca Straits Patrol is an example of Indonesia’s successful cooperation in maritime security.137 The soms, which used to be listed as a “high-risk war zone”138 now have “almost zero” incident of piracy and armed robbery.139 Recently, together with Malaysia and the Philippines, Indonesia launched the Sulu-Sulawesi Seas Patrol, a similar cooperative framework to safeguard the Sulu Sea and Sulawesi Sea.140 This initiative also includes maritime and air

134 Singapore’s Ministry of Defence [Mindef ], Official Release, Fact Sheet: The Malacca Straits Patrol (Apr. 21, 2016), available at https://www.mindef.gov.sg/imindef/press_room/ official_releases/nr/2016/apr/21apr16_nr/21apr15_fs.html. 135 Ibid. 136 Ibid; Mindef, Official Release, Fact Sheet: Information Fusion Centre (IFC) (Feb. 13, 2015), available at https://www.mindef.gov.sg/imindef/press_room/official_releases/nr/2014/ apr/04apr14_nr/04apr14_fs.html. 137 See IMB Piracy Report Notes Decline in Piracy, icc Commercial Crime Services, available at https://icc-ccs.org/news/371-imb-piracy-report-notes-decline-in-piracy. 138 Koh Swee Lean Collin, The Malacca Strait Patrols: Finding Common Ground, rsis com- mentary no. 091 (Apr. 20, 2016), available at https://www.rsis.edu.sg/wp-content/ uploads/2016/04/CO16091.pdf, at 2. 139 Statement of Malaysia’s Navy Chief, Admiral Ahmad Kamarulzaman, cited in Melissa Goh, Joint Patrols in Sulu Sea to Start in April: Malaysia Navy Chief, channel newsasia (Mar. 14, 2017), available at http://www.channelnewsasia.com/news/asiapacific/joint -patrols-in-sulu-sea-to-start-in-april-malaysia-navy-chief/3594796.html. 140 Francis Chan and Wahyudi Soeriaatmadja, Indonesia, Malaysia, Philippines Launch Joint Operations in Sulu Sea to Tackle Terrorism, Transnational Crimes, the straits times (Jun. 19, 2017), available at http://www.straitstimes.com/asia/indonesia-malaysia-and -philippines-launch-joint-operations-in-sulu-sea-to-tackle-terrorism; Prashanth

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 151 patrols,141 but has yet to establish a centre to manage information and intelligence exchange similar to the ifc. The initiative has been hindered by deficient resources to secure such a vast body of water.142 The lack of a sophisticated system of information and intelligence exchange, and lack of sustainable funds similar to those of the Cooperative Mechanism for the soms143 also challenge the success of the initiative. Besides these initiatives, Indonesia has also conducted bilateral naval exercises with a number of States, including Singapore,144 India145 and the United States (US).146 Multilateral naval exercises are normally conducted under the auspices of the Association of Southeast Asian Nations (“asean”) Defence Min- isters’ Meeting – Plus,147 which have conducted military exercises since 2013.148 Indonesia also participated in the Southeast Asia Cooperation and Training, an

Parameswaran, What’s Next for the New Sulu Sea Trilateral Patrols?, the diplomat (Jun. 20, 2017), available at https://thediplomat.com/2017/06/whats-next-for-the-new -sulu-sea-trilateral-patrols/. 141 Ibid. 142 Various commentators point out insufficiencies in Indonesia’s and the Philippines’s military assets and personnel. See J.N. Mak, ‘Unilateralism and Regionalism: Working Together and Alone in the Malacca Straits’, in Graham Gerard Ong-Webb (Ed.), Piracy, Maritime Terrorism and Securing the Malacca Straits (Institute of Southeast Asian Stud- ies, Singapore, 2006) 134 at 155–156; Angel Rabasa, ‘Case Study: The Sulawesi-Mindanao Arc,’ in Ungoverned Territories: Understanding and Reducing Terrorism Risks (rand Corporation, Santa Monica, CA; Arlington, VA; Pittsburgh, PA, 2007) 111 at 143–144, available at http://www.rand.org/content/dam/rand/pubs/monographs/2007/RAND_ MG561.pdf. 143 See infra notes 175, 184–188 and accompanying text. 144 Mindef, Official Release, Ex Eagle Indopura: Singapore and Indonesian Navies Com- memorate over Four Decades of Bilateral Ties (Mar. 5, 2016), available at https://www .mindef.gov.sg/imindef/press_room/official_releases/nr/2016/mar/05mar16_nr.html# .WiozwVWWaUk. 145 Coordinated Patrol and India-Indonesia Bilateral Maritime Exercise Commence at Belawan, Indonesia, Indian Navy, available at https://www.indiannavy.nic.in/content/coordinated -patrol-and-india-indonesia-bilateral-maritime-exercise-commence-belawan. 146 Prashanth Parameswaran, US, Indonesia Launch Naval Exercise, the diplomat (Sep. 12, 2017), available at https://thediplomat.com/2017/09/us-indonesia-launch-naval-exercise/. 147 The asean Defence Ministers Meeting-Plus consists of the ten asean member States in addition to Australia, China, India, Japan, New Zealand, Russia, South Korea and the US. About the ASEAN Defence Ministers’ Meeting (ADMM-Plus), admm – asean Defence Ministers’ Meeting (Feb. 6, 2017), available at https://admm.asean.org/index.php/about- admm/about-admm-plus.html; Activities, ADMM-Plus Maritime Security Community Information-Sharing Portal, available at http://amscip.org/activities/ [AMSCIP]. 148 AMSCIP, ibid.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 152 Ikrami and bernard initiative led by the US involving South and Southeast Asian nations.149 Indo- nesia itself leads and hosts the Multilateral Naval Exercise Komodo, a bi-annual naval exercise that was launched in 2014.150 In 2016, 35 countries participated in this exercise,151 making it one of the largest multilateral naval exercises in the world.152 Furthermore, the asean member States recently launched the first asean Multilateral Naval Exercise, which was hosted by the Royal Thai Navy on 21 November 2017.153 All of the member States but Laos – a landlocked country – participated in the exercise.154 Besides participating in naval patrols and exercises, Indonesia also cooperates with other actors in formulating regional and multilateral policies to enhance maritime security. For example, the asean Regional Forum155 has adopted the 2015–2017 Work Plan for Maritime Security, which aimed, among other things, to improve capacity-building, confidence-building, and exchange of information on maritime security.156 Another forum is the asean Defence

149 Navy News Service, Exercise Enhances Cooperative Maritime Security Efforts, U.S. De- partment of Defense (Aug. 21, 2017), available at https://www.defense.gov/News/ Article/Article/1284477/exercise-enhances-cooperative-maritime-security-efforts/; “Singapore Participates in Multilateral Maritime Security Exercise,” Mindef (Aug. 29, 2017), available at https://www.mindef.gov.sg/imindef/press_room/details.html?name= 29aug17_nr2&date=2017-08-29#.WhZcFlWWaUk. 150 Information Division, Latma Multilateral Komodo 2014, 27 KRI dan 14 Kapal Perang Negara ASEAN dan ASEAN Plus Tiba di Perairan Batam, Indonesian Navy (Mar. 29, 2014), available at http://www.tnial.mil.id/tabid/79/articleType/ArticleView/articleId/ 18978/Default.aspx; NTB to Host 3rd Multilateral Naval Exercise Komodo Event in 2018, THE JAKARTA POST (Sep. 19, 2017), available at http://www.thejakartapost .com/travel/2017/09/19/ntb-to-host-3rd-multilateral-naval-exercise-komodo -event-in-2018.html [The Jakarta Post]. 151 Task Force 73 Public Affairs, Multilateral Naval Exercise Komodo Kicks Off in Indo- nesia, United States Navy (Apr. 12, 2016), available at http://www.navy.mil/submit/ display.asp?story_id=94132. 152 The next exercise is scheduled to take place in Lombok in May 2018. The Jakarta Post, supra note 150. 153 The 1st ASEAN Multilateral Naval Exercise, asean international fleet review 2017 (Nov. 21, 2017), available at http://aseanifr2017.com/20171121-1st-amnex/. 154 Ibid. 155 The Forum consists of the ten asean member States, Australia, Bangladesh, Canada, China, the European Union, India, Japan, Mongolia, New Zealand, North Korea, Pakistan, Papua New Guinea, Russia, South Korea, Sri Lanka, Timor-Leste, and the United States. About the ASEAN Regional Forum, asean Regional Forum, available at http://asean regionalforum.asean.org/about.html. 156 ASEAN Regional Forum Work Plan for Maritime Security 2015–2017, asean Regional Forum, available at http://aseanregionalforum.asean.org/files/library/Plan%20of%20Action% 20and%20Work%20Plans/ARF%20Work%20Plan%20on%20Maritime%20Security% 202015-2017.pdf, at 4–6.

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Ministers’ Meeting, whose Three-Year Work Programme for 2014–2016 focused, inter alia, on maritime security cooperation157 and establishing a Direct Communications Link to respond promptly to security threats, including maritime crimes.158 Moreover, Indonesia has also been a big part of the asean Ministerial Meeting on Transnational Crime (“ammtc”), which adopted the 1999 asean Plan of Action to Combat Transnational Crime159 and the 2002 Work Programme to implement the Plan of Action.160 The Work Programme contains detailed measures to prevent and suppress transnational crimes, including piracy.161 The ammtc reiterated its pledge to combat piracy in the 2015 Kuala Lumpur Declaration in Combating Transnational Crime.162 Another actor with which Indonesia has engaged in maritime security cooperation since 1961 is the imo.163 For instance, in implementing the imo- adopted International Ship and Port Facility Code pursuant to Chapter xi-2 of solas,164 the Minister of Transportation enacted Regulation No. PM 134 of 2016.165 As a result, more than 742 Indonesian-flagged vessels and over 247 port facilities have complied with the Code,166 which aims to detect

157 ASEAN Defence Ministers’ Meeting (ADMM) Three-Year-Work Programme 2014–2016, ASEAN Defence Ministers’ Meeting, available at https://admm.asean.org/dmdocuments/ ADMM%20Three%20Year%20Work%20Programme%202014–2016%20(Final).pdf, at para. 3.2.1. 158 About the ASEAN Defence Ministers’ Meeting (ADMM), asean Defence Ministers Meet- ing, available at https://admm.asean.org/index.php/about-admm/about-admm.html. 159 asean Plan of Action to Combat Transnational Crime (Jun. 23, 1999), available at http:// asean.org/?static_post=asean-plan-of-action-to-combat-transnational-crime. 160 Work Programme to Implement the asean Plan of Action to Combat Transnational Crime (May 17, 2002), available at http://asean.org/?static_post=work-programme-to -implement-the-asean-plan-of-action-to-combat-transnational-crime-kuala-lumpur-17 -may-2002. 161 Ibid, especially at para. 3. 162 Kuala Lumpur Declaration in Combating Transnational Crime (September 30, 2015), available at http://asean.org/wp-content/uploads/images/2015/October/ammtc/KL%20 DECLARATION%20IN%20COMBATING%20TNC.PDF, at 2 para. 7. 163 Member States, International Maritime Organization, available at http://www.imo.org/ en/About/Membership/Pages/MemberStates.aspx. 164 SOLAS XI-2 and the ISPS Code, International Maritime Organization, available at http://www.imo.org/en/OurWork/Security/Guide_to_Maritime_Security/Pages/ SOLAS-XI-2%20ISPS%20Code.aspx. 165 Minister of Transportation Regulation No. PM 134 of 2016 on Ships Security Management and Port Facilities. The first preambular paragraph and Article 1(1) of the Regulation show that the Regulation was adopted to implement the SOLAS amendment on the ISPS Code. 166 Indonesia and the International Maritime Organization, Embassy of the Republic of Indonesia in London, the United Kingdom (Dec. 11, 2009), available at https://www.kemlu .go.id/london/en/arsip/lembar-informasi/Pages/Indonesia-and-The-International -Maritime-organization.aspx.

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4.2 Safety of Navigation Indonesia cooperates extensively with the imo in enhancing navigational safety. Indonesia consulted with the organisation in designating partially its archipelagic sea lanes,168 which constitute a routeing system169 to promote safety of navigation.170 Indonesia also established the Cooperative Mechanism171 with Malaysia and Singapore in 2007 pursuant to Article 43 of unclos to ensure safety of navigation and environmental protection in the soms.172 The Cooperative Mechanism has three components: the Cooperation Forum, which facilitates dialogue between the three littoral States, user States, the shipping industry and other stakeholders;173 the Project Coordination Com- mittee, which coordinates the implementation of projects to enhance safety of navigation and environmental protection in the Straits;174 and the Aids to Navigation Fund, which is administered by the littoral States to allow inter- ested parties to make voluntary financial contributions to the maintenance of navigational aids.175 Under the Cooperative Mechanism, the three littoral States not only cooperate with each other, but also with other States and non-State actors. For

167 SOLAS XI-2 and the ISPS Code, supra note 164. 168 imo Maritime Safety Committee Resolution msc.72(69), Adoption, Designation, and Substitution of Archipelagic Sea Lanes (May 19, 1998), Annex: Partial System of Archi- pelagic Sea Lanes in Indonesian Archipelagic Waters, available at http://www.imo.org/ blast/blastDataHelper.asp?data_id=15438&filename=72(69).pdf. 169 Decision of the imo Sub-Committee on Safety of Navigation, 43rd Session, cited in imo Resolution MSC.71(69) (adopted on 19 May 1998), Adoption of Amendments to the General Provisions on Ships’ Routeing (Resolution A.572(14) as amended), at preambular para. 3. 170 Regulation V/10, 1974 solas Convention, as amended, Ships’ Routeing, at 1. 171 For further discussion on the Cooperative Mechanism, see Leonardo Bernard, ‘The Coop- erative Mechanism in the Straits of Malacca and Singapore’ in Robert C. Beckman et al. (Eds.), Freedom of Navigation and Globalization, Center for Oceans Law and Policy series, vol. 18 (Brill Nijhoff, Leiden and Boston, 2015) 196. 172 Establishment, Cooperative Mechanism, available at http://www.cm-soms.com/?p=td &id=6; “Contribution,” Cooperative Mechanism, available at http://www.cm-soms.com/ ?p=td&id=9; Bernard, supra note 171, at 212. 173 Cooperation Forum, Cooperative Mechanism, available at http://www.cm-soms.com/ ?p=component-info&id=2; see Bernard, supra note 171, at 212. 174 Project Coordination Committee (PCC), Cooperative Mechanism, available at http://www .cm-soms.com/?p=component-info&id=8; see Bernard, supra note 171, at 212–214. 175 Aids to Navigation Fund, Cooperative Mechanism, available at http://www.cm-soms .com/index.php?p=component-info&id=4; see Bernard, supra note 171, at 214.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 155 instance, Malaysia led the removal of shipwrecks in the Straits, a project carried out with India and Germany.176 Indonesia engaged with Japan and China in two projects to replace and maintain navigational aids damaged by the 2004 tsunami.177 Singapore also led a project with China and India to establish wind, tide, and current measurement system.178 Moreover, several non-State actors have also pledged to contribute to the Cooperative Mechanism. The Nippon Foundation contributed approximately USD 1.4 million to finance a site survey for the purpose of maintaining and repairing navigational aids.179 The International Chamber of Shipping pledged to provide expertise and capacity- building support.180 The Middle East Navigation Aids Service committed USD 1 million to the Aids to Navigation Fund.181 Indonesia, Malaysia and Singapore also frequently work on various projects with the imo. The imo assisted the three States with a demonstration trial of Automatic Identification System Class-B Transponders on small ships, a project led by Singapore that involved Australia, Japan and South Korea.182 The imo also contributed to the study on the establishment of emergency towing vessels’ capability in straits.183 Furthermore, the imo established the Malacca and Singapore Straits Trust Fund pursuant to a Joint Technical Arrangement signed between the imo and the littoral States in 2009.184 The Trust Fund, which is aimed at inviting sponsors for Cooperative Mechanism projects,185 complements the Aids to Navigation Fund. In 2010, the Trust Fund managed to collect USD 1,238,193 and eur 315,000.186 The Trust Fund has been used to

176 Contribution, supra note 172. 177 Ibid. 178 Ibid. 179 Joshua H. Ho, Enhancing Safety, Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism, 40(2) Ocean Development & Inter- national Law 233 (2009) at 241. 180 Ibid, at 242. 181 Ibid. 182 Contribution, supra note 172. 183 Ibid. 184 IMO Straits Trust Fund, Cooperative Mechanism, available at http://www.cm-soms .com/?p=opage-content&id=2. 185 Ibid. 186 Most of this came from Greece’s contribution of USD 1 million in 2008. IMO Straits Trust Fund, supra note 184.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 156 Ikrami and bernard finance many of the Cooperative Mechanism projects,187 and by the end of 2017, USD 116,910 still remained in the Trust Fund.188 Cooperation between Indonesia, Malaysia, Singapore and the imo is also demonstrated by the imo’s adoption of traffic separation schemes and ship reporting system to ensure safety of navigation in the Straits. The traffic separation schemes extend 250 nautical miles long between Permatang Sedepa (One Fathom Bank) and near Horsburgh Lighthouse.189 The reporting system, called straitrep, is mandatory for ships of at least 300 gross tonnage or are at least 50 metres long, or ships that carry hazardous substances or are equipped with Very High Frequency.190 They are required to inform the Klang, Johor, or Singapore Vessel Traffic Service authorities – depending on the sector where they are located or are about to enter – of their identities, positions, hazardous cargo (if any), as well as course and speed.191 They are also required to notify the above authorities when passing through certain spots, such as the line join- ing Tg. Piai and Pulau Karimun Kecil.192 The Cooperative Mechanism, albeit not perfect, has shown positive progress. The Automatic Identification System Class-B Transponders Project has been completed,193 and the Cooperative Mechanism has also received substantial

187 See e.g. Secretariat of the Aids to Navigation Fund, Marine Department Malaysia, Update on the Aids to Navigation Fund under the Cooperative Mechanism between the Littoral States and User States on Safety of Navigation and Environmental Protection in the Straits of Malacca and Singapore, Cooperative Mechanism (Aug. 31, 2012), available at http://www.cm-soms.com/uploads/1/19/6.1%20Report%20of%208th%20Aids%20to %20Navigation%20Fund%20Committee%20Meeting.pdf, at para. 5.0. 188 Hiro Yamada, Updates on IMO Malacca and Singapore Straits Trust Fund, Coopera- tive Mechanism (Oct. 2–3, 2017), available at http://www.cm-soms.com/uploads/2/59/ CF%2010-2-3%20An%20updates%20on%20IMO%20SOMS%20Trust%20Fund%20 (IMO%20Straits%20Trust%20Fund).pdf. 189 BIMCO and the Maritime Authorities of Indonesia, Malaysia, and Singapore (Co- operative Mechanism for the Straits of Malacca and Singapore), Safe Passage: The Straits of Malacca and Singapore (bimco, Bagsvaerd, Denmark), available at https:// www.bimco.org/~/media/Products/Manuals-Pamphlets/Safe_Passage_Straits_ of_Malacca_and_Singapore/Safe_Passage_-_The_Straits_of_Singapore_and_Malacca_ 2014-05_Pamphlet.ashx; see imo, Ships’ Routing, 2015 Edition, 12th ed. (London: imo Publishing, 2015), Part B, Section v. 190 imo Maritime Safety Committee, Resolution MSC.73(69), Mandatory Ship Reporting Systems (19 May 1998), Annex 1: Description of the Mandatory Ship Reporting System in the Straits of Malacca and Singapore, available at http://www.imo.org/blast/blastData Helper.asp?data_id=15439&filename=73(69).pdf, at clause 1. 191 Ibid, at clauses 3.2 & 3.2(.4). 192 Ibid, at clause 3.2(.3). 193 Contribution, supra note 172.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 157 financial contributions from the stakeholders, which have been disbursed on many of the Cooperative Mechanism projects.194

4.3 Protection of the Marine Environment Besides aiming to improve safety of navigation, the Cooperative Mechanism is also aimed at protecting the marine environment.195 This is shown by a project led by Malaysia to forge cooperation and capacity-building to enhance preparedness and response capabilities against hazardous and noxious substances (“hns”) in the Straits.196 This project – which also involved Australia, China, the European Commission and the US197 – was estimated to cost US$ 3.5 million for two years.198 The project consisted of four components: the development of a hns databank,199 to which Australia offered to contribute its expertise;200 the adoption of a Standard Operating Procedure for dealing with hns spills;201 capacity-building;202 and the establishment of hns Response Centres.203 Several States have assisted with the capacity-building. In 2008, the US Coast Guard trained the littoral States on how to respond to and be pre- pared for hns leakage.204 China has also expressed its intention to run an hns Train-the-Trainers Programme for Indonesia, Malaysia and Singapore.205 Indonesia also takes part in various other regional and multilateral initiatives to promote protection of the marine environment, including asean initiatives. This can be seen in the adoption of three asean instruments: the asean Marine Water Quality Criteria,206 the asean Criteria for National

194 Supra notes 179–181, 186–188 and accompanying text. 195 Establishment, supra note 172. 196 Contribution, supra note 172. 197 Ibid. 198 Ho, supra note 179, at 237. 199 Contribution, supra note 172. 200 Maritime and Port Authority of Singapore [mpa], News Release, IMO Fund Raises Straits Co-operation to a New High, (Oct. 14, 2009), available at http://www.mpa.gov.sg/web/ portal/home/media-centre/news-releases/detail/b4e25fb0-b11c-44fd-add2-99221efeb35a. 201 Contribution, supra note 172. 202 Ibid. 203 Ibid. 204 MPA, supra note 200. 205 Ibid. 206 17 Parameters – asean Marine Water Quality Criteria, adopted by the asean Environ- ment Ministers at the 7th Informal asean Ministerial Meeting on the Environment (iamme) on 20 November 2002 in Vientiane, Lao pdr, available at http://environment .asean.org/wp-content/uploads/2015/07/ASEAN-Marine-Water-Quality-Criteria.pdf.

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Marine Protected Areas207 and the asean Criteria for Marine Heritage Areas.208 All of these instruments were adopted by asean members’ environmental ministers.209 Furthermore, Indonesia also cooperates with the asean Work- ing Group on Coastal and Marine Environment,210 including by hosting its 15th meeting in Jakarta in June 2014.211 Indonesia is one of the six States participating in the Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security.212 The member States established the initiative in 2009213 and equipped it with a regional secretariat, rules of procedure, staff regulations and financial regulations in 2011.214 The regional secretariat, which is located in Manado, Indonesia,215 has a limited legal personality216 and in 2015, concluded a Host Country Agreement on Privileges and Immunities with Indonesia.217 As part of this initiative, the participating

207 ASEAN Criteria for National Marine Protected Areas, available at http://www.asean .org/uploads/archive/cme/ASEAN%20Criteria%20for%20National%20MPAs.pdf. 208 ASEAN Criteria for Marine Heritage Areas, available at http://www.asean.org/ uploads/archive/cme/ASEAN%20Criteria%20for%20Marine%20Heritage%20Areas.pdf. 209 Coastal and Marine Environment, asean Cooperation on Environment, available at https://environment.asean.org/coastal-and-marine-environment/. 210 See e.g. ASEAN Discusses Coastal and Marine Preservation, Ministry of Foreign Affairs of the Republic of Indonesia (May 14, 2017), available at https://www.kemlu.go.id/ en/berita/Pages/asean-discusses-coastal-and-marine-preservation.aspx. 211 Aditia Maruli Radja (Ed.), Indonesia Hosts ASEAN’s Coastal, Marine Environment Meet- ing, ANTARA NEWS (Jun. 11, 2014), available at https://en.antaranews.com/news/94405/ indonesia-hosts-aseans-coastal-marine-environment-meeting. 212 The other participants are Malaysia, Papua New Guinea, the Philippines, Solomon Islands, and Timor-Leste. About–History of CTI-CFF, Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security, available at http://www.coraltriangleinitiative .org/about. 213 Coral Triangle Initiative Leaders’ Declaration on Coral Reefs, Fisheries and Food Secu- rity, Manado, Indonesia (May 15, 2009), available at http://www.coraltriangleinitiative .org/sites/default/files/resources/Leader%20Declaration%20coral%20triangle%20initi ative_0.pdf. 214 Agreement on the Establishment of the Regional Secretariat of the Coral Triangle Initia- tive on Coral Reefs, Fisheries and Food Security (Jakarta, Oct. 28, 2011, in force Nov. 20, 2014) [Agreement on CTI-CFF Secretariat]; Rules of Procedure; Staff Regulations; Finan- cial Regulations, also adopted in the 3rd cti-cff Ministerial Meeting on Oct. 28, 2011 in Jakarta, available at http://www.coraltriangleinitiative.org/sites/default/files/resources/The%20Agreement%20on%20The%20Establishment%20of%20RS%20CTI-CFF_ Newest_2017_compressed.pdf. 215 About the Regional Secretariat, Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security, available at http://www.coraltriangleinitiative.org/about-regional-secretariat. 216 Agreement on cti-cff Secretariat, supra note 214, art. 3. 217 Host Country Agreement between the Regional Secretariat of the Coral Triangle Initia- tive on Coral Reefs, Fisheries and Food Security and the Government of the Republic of Indonesia on Privileges and Immunities (Manado, Dec. 1, 2015), available at http://

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States have adopted a Regional Plan of Action for 2009–2019, which has five goals: to designate and manage effectively “Priority Seascapes”, including investment plans and management of marine and coastal resources; to take an ecosystem approach to fisheries management and other marine resources; to establish and effectively manage marine protected areas; to take measures to adapt to climate change; and to improve the status of threatened species, such as sharks, sea turtles, mangroves and corals.218 The Indonesian government’s commitment to protecting corals and coral reefs is further demonstrated by its cooperation with a number of States after a recent incident that resulted in an extensive damage to its coral reef. On 4 March 2017, MV Caledonian Sky, a Bahamian-flagged cruise ship owned by a Swedish company and run by a British tour operator,219 had taken tourists for a bird watching trip in the waters off Raja Ampat, Indonesia, when it ran aground at low tide and hit the coral reef underneath.220 As the 4,200-ton ship tried to break free by having a tug boat tow it multiple times, it caused more damage to the reef.221 Upon assessing the extent of the damage, the government found that the incident had destroyed coral reef covering an extensive area of 18,882 square metres.222 It estimated that it would take at least fifty years to restore the reef,223 which could cost approximately US$ 18.6 million.224 Indonesia was planning to prosecute the ship’s captain, Keith Michael Taylor, a

www.coraltriangleinitiative.org/sites/default/files/resources/HCA%20Pemri-CTI%20 English%20FINAL-Copy.pdf. 218 Regional Plan of Action, Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security (cti-cff), available at http://coraltriangleinitiative.org/sites/default/files/ resources/CTI-CFF%20Regional%20Plan%20Of%20Action%20(RPOA)%20.pdf, at ii–iii. 219 Wahyudi Soeriaatmadja, 50 Years Needed to Restore Raja Ampat Coral Reef Destroyed by Cruise Ship: Indonesian Minister, the straits times (Mar. 17, 2017), available at http:// www.straitstimes.com/asia/se-asia/50-years-needed-to-restore-raja-ampat-coral-reef -destroyed-by-cruise-ship-indonesian. 220 News Desk, Cruise Ship Smashes into Coral in Raja Ampat, the jakarta post (Mar. 13, 2017), available at http://www.thejakartapost.com/news/2017/03/13/cruise-ship-smashes- into-coral-in-raja-ampat.html. 221 afp, British Cruise Ship Damages Pristine Indonesian Coral Reef, the straits times (Mar. 14, 2017), available at http://www.straitstimes.com/world/europe/ british-cruise-ship-damages-pristine-indonesian-coral-reef. 222 Caledonian Sky Destroyed More Than 18,000 M² of Pristine Raja Ampat Reefs, Survey Concludes, the jakarta post (Mar. 22, 2017), available at http://www.thejakartapost .com/news/2017/03/22/caledonian-sky-destroyed-more-than-18000-m2-of-pristine-raja -ampat-reefs-survey-concludes.html. 223 Soeriaatmadja, supra note 219. 224 Haeril Halim, Insurance Company to Pay for Coral Reef Damage in Raja Ampat, the jakarta post (Jun. 27, 2017), available at http://www.thejakartapost.com/news/ 2017/06/27/insurance-company-to-pay-for-coral-reef-damage-in-raja-ampat.html.

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British national;225 file a civil law suit;226 and/or take the case before the Inter- national Tribunal for the Law of the Sea (“itlos”).227 However, the ship and its captain left the Indonesian waters not long after the incident occurred.228 Indonesia subsequently summoned the UK Ambassador in Jakarta to a meeting with the Coordinating Minister for Maritime Affairs.229 The Ambas- sador expressed positive views on the meeting and gestured willingness to cooperate.230 The Bahamas, as the ship’s flag State, has also expressed its readiness to assist Indonesia with the investigation into the incident.231 It also agreed to cooperate with Indonesia in restoring the coral reef.232 The government was initially reluctant to accept compensation by the tour operator’s insurance company, since it was of the view that the compensation would be insufficient to cover the losses incurred.233 However, the government finally agreed to accept compensation from the London Protection and Indemnity Club, despite not disclosing the amount.234 It is unclear whether the government still plans to prosecute the captain and/or bring the matter before itlos. If Indonesia wanted to prosecute the ship’s captain, or call for his prosecution by his country of nationality, it will have to invoke an extradition

225 Fabian Januarius Kuwado, Kapolri: Nahkoda-Pemilik Caledonian Sky Terancam Pidana dan Perdata, kompas.com (Mar. 16, 2017), available at http://nasional.kompas.com/ read/2017/03/16/13084141/kapolri.nahkoda-pemilik.caledonian.sky.terancam.pidana.dan .perdata. 226 Ibid. 227 Haeril Halim, Indonesia Considers Taking Caledonian Sky Case to International Court, the jakarta post (Mar. 20, 2017), available at http://www.thejakartapost.com/news/ 2017/03/20/indonesia-considers-taking-caledonian-sky-case-to-international-court.html. 228 Fabian Januarius Kuwado, Kapal Pesiar Perusak Terumbu Karang Raja Ampat Kini Ada di Filipina, kompas.com (Mar. 13, 2017), available at http://nasional.kompas.com/ read/2017/03/13/17574171/kapal.pesiar.perusak.terumbu.karang.raja.ampat.kini.ada.di .filipina. 229 UK Ambassador to Indonesia Summoned over Coral Damage, bbc news (Mar. 17, 2017), available at http://www.bbc.com/news/world-asia-39300488. 230 Ibid. 231 Ade Junida and Ade P. Marboen, Bahama Bantu Indonesia Investigasi Kasus MV Caledonian Sky, antara news (Apr. 5, 2017), available at https://www.antaranews .com/berita/622449/bahama-bantu-indonesia-investigasi-kasus-mv-caledonian-sky. 232 Ibid. 233 Halim, supra note 224. 234 Ibid; Damaged Raja Ampat Coral Reefs Require 100 Years to Recover, tempo.co (Mar. 24, 2017), available at https://en.tempo.co/read/news/2017/03/24/206859214/ Damaged-Raja-Ampat-Coral-Reefs-Require-100-Years-to-Recover.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 161 agreement or mutual legal assistance agreement. However, Indonesia and the UK do not currently have either agreement between them.235 If Indonesia wanted to submit the matter to itlos, it will have to decide against whom it will file a claim. In this case, the Bahamas, as the flag State of the ship, may be the defendant.236 Indonesia will have to argue that the Baha- mas has breached its obligations as a flag State under Article 94 of unclos by not exercising proper jurisdiction and control in “administrative, technical and social matters” over Caledonian Sky, and by not taking appropriate actions even after being informed by Indonesia of the incident.237 However, the Bahamas has stated that it will cooperate with Indonesia and will launch investigation into the matter.238 Since this is a developing case, it remains to be seen how Indonesia’s cooperation with all the relevant States and entities will progress.

4.4 iuu Fishing239 One of the pillars on which President Widodo built his ‘global maritime fulcrum’ vision is the development of the fishing industry.240 To achieve this, Indonesia has forged and intensified cooperation with other States and international organisations to suppress illegal, unreported and unregulated (“iuu”) fishing. On 23 June 2016, Indonesia deposited its ratification instrument of the psma.241 Indonesia became the third Southeast Asian State to ratify the Agree- ment, after Myanmar and Thailand.242 By being a party to the Agreement, Indonesia hopes to engage in a more intensive cooperation and exchange of information with other States parties in combating iuu fishing.243 How- ever, the low number of ratifications of the Agreement by asean members

235 See International Criminality Unit, International MLA & Extradition Agreements the UK Is Party to, uk home office (updated Apr. 2016), available at https://www.gov.uk/ government/uploads/system/uploads/attachment_data/file/516418/Treaty_List.pdf. 236 See Statute of the International Tribunal for the Law of the Sea, Annex vi to unclos (Dec. 10, 1982), 1833 UNTS 561, arts. 20–22. 237 See United Nations Convention on the Law of the Sea (Montego Bay, Dec. 10, 1982), 1833 unts 3 [UNCLOS], art. 94. 238 Supra notes 231–232. 239 This section draws on Ikrami, supra note 1, at 318, 323–330. 240 Witular, supra note 1. 241 psma, supra note 11. 242 See ibid. 243 See Arifin Asydhad, Ratifikasi PSMA, Indonesia Makin Serius Perangi Illegal Fishing, detik finance (Jul. 12, 2016), available at https://finance.detik.com/berita-ekonomi -bisnis/3251627/ratifikasi-psma-indonesia-makin-serius-perangi-illegal-fishing.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 162 Ikrami and bernard indicate either that the magnitude and severity of iuu fishing in the region might not be shared by all of the Southeast Asian States, or not all of them have the capacity to implement all of the obligations under the Agreement. Indonesia was also part of a high-level consultation that adopted a Joint Declaration against iuu fishing between asean and the Southeast Asian Fisheries Development Center,244 a regional fishery body composed of the asean member States and Japan.245 Indonesia also contributed to the adoption of Resolution on Sustainable Fisheries for Food Security for the asean Region towards 2020,246 which serves as a basis for the adoption of the 2015 asean Guidelines for Preventing the Entry of Fish and Fishery Products from iuu Fishing Activities into the Supply Chain.247 Moreover, Indonesia has co- organised workshops on iuu fishing involving members of the asean Regional Forum,248 in order to provide a platform for dialogue and encourage a stronger cooperation in combating iuu fishing.249 Indonesia has also repeatedly called for stronger actions and cooperation to combat iuu fishing on various occa- sions, such as at the 29th asean Summit Retreat,250 2016 asean-US Summit,251

244 Joint asean-seafdec Declaration on Regional Cooperation for Combating Illegal, Un- reported and Unregulated (iuu) Fishing and Enhancing the Competitiveness of asean Fish and Fishery Products (Aug. 3, 2016), available at http://www.seafdec.org/documents/ hlc-joint-declaration.pdf, especially p. 4 point 3. 245 About SEAFDEC, Southeast Asian Fisheries Development Center, available at http:// www.seafdec.org/about/; Southeast Asian Fisheries Development Center (SEAFDEC), fao Fisheries and Aquaculture Department, available at http://www.fao.org/fishery/rfb/ seafdec/en. 246 Resolution on Sustainable Fisheries for Food Security for the asean Region towards 2020 (Jun. 17, 2011), available at http://www.asean.org/wp-content/uploads/images/archive/ AMAF%2033%20Resolution%20Sustainable%20Fisheries_Adopted.pdf. 247 ASEAN Guidelines for Preventing the Entry of Fish and Fishery Products from IUU Fishing Activities into the Supply Chain (2015), available at http://www.asean.org/ wp-content/uploads/images/2015/November/AMAF/App%209%20-%20ASEAN%20 Guidelines%20IUU%20SSOM36th%20AMAF%20final.pdf, p. xi para. 2. 248 For membership of the Forum, see supra note 155. 249 Indonesia Chairs ARF Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Ministry of Foreign Affairs Republic of Indonesia (Apr. 22, 2016), available at http://www .kemlu.go.id/en/berita/Pages/workshop-iuu-fishing.aspx. 250 Istman MP, Jokowi Highlights Illegal Fishing in ASEAN Summit, tempo.co (Sep. 7, 2016), available at https://en.tempo.co/read/news/2016/09/07/308802411/ Jokowi-Highlights-Illegal-Fishing-in-ASEAN-Summit. 251 Ayomi Amindoni, Jokowi Urges ASEAN, US to Combat Illegal Fishing, the jakarta post (Sep. 8, 2016), available at http://www.thejakartapost.com/news/2016/09/08/jokowi -urges-asean-us-to-combat-illegal-fishing.html.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 163 as well as several asean meetings in August 2017,252 including the 50th asean Foreign Ministers’ Meeting in Manila.253 Recently, Indonesia pledged to share its Vessel Monitoring System (“vms”) data with Global Fishing Watch,254 a Delaware non-profit corporation.255 This would allow anyone to view fishing activities in Indonesian waters from an online data platform.256 Indonesia registered this commitment with the United Nations during the Ocean Conference on 5–9 June 2017.257 Indonesia is the first State to make such a commitment and encouraged other States to follow suit.258 Following Indonesia’s footsteps, Peru made the same commitment.259 Minister Pudjiastuti said that the disclosure of the data would allow the public to report suspicious activities on Indonesian waters to the authorities, thereby contributing to the eradication of iuu fishing.260 Minister Pudjiastuti also said that in order to prevent the leakage of classified data, the government will not share real-time vms data.261

252 Tama Salim, RI Brings Struggle against Illegal Fishing to ASEAN, the jakarta post (Aug. 8, 2017), available at http://www.thejakartapost.com/news/2017/08/08/ri-brings -struggle-against-illegal-fishing-asean.html. 253 Joint Communiqué of the 50th asean Foreign Ministers’ Meeting, Manila, Philippines (Aug. 5, 2017), available at http://asean.org/storage/2017/08/Joint-Communique-of-the -50th-AMM_FINAL.pdf, para. 39. 254 Joint Statement from the Republic of Indonesia and Global Fishing Watch, Inc. (Jun. 2017), available at http://globalfishingwatch.org/indonesia-vms-joint-statement [Joint Statement]. 255 Terms of Use, Global Fishing Watch (last modified Oct. 10, 2016), available at http://globalfishingwatch.org/terms-of-use. 256 See About the Project, Global Fishing Watch, available at http://globalfishingwatch.org/ the-project. 257 Task Force Combatting Illegal Fishing and Ministry of Marine Affairs and Fisheries, Eradication of Illegal, Unreported and Unregulated Fishing (IUUF) and to Promote Fisher- ies Crimes as a Transnational Organized Crime, United Nations – The Ocean Conference, available at https://oceanconference.un.org/commitments/?id=18271; “About”, United Nations – The Ocean Conference, available at https://oceanconference.un.org/about. 258 Joint Statement, supra note 254. 259 A New Era for Transparency: First-Ever Public Release of Vessel Monitoring System Data, Global Fishing Watch, available at http://globalfishingwatch.org/indonesia-vms/. 260 Muhammad Razi Rahman, Menteri Susi: Transparansi VMS Perbaiki Pengelolaan Perikanan, antara babel (Jul. 6, 2017), available at http://babel.antaranews.com/ berita/60890/menteri-susi-transparansi-vms-perbaiki-pengelolaan-perikanan; see Zulfi Suhendra, Menteri Susi Ajak Anggota PBB Buka Data Pemantauan Kapal, liputan 6 (Jul. 6, 2017), available at http://bisnis.liputan6.com/read/3012684/menteri-susi-ajak -anggota-pbb-buka-data-pemantauan-kapal. 261 Galih Gumelar, Menteri Susi Kukuh Buka Data Kapal Meski Banyak Diprotes, cnn indonesia (Jul. 1, 2017), available at https://www.cnnindonesia.com/ekonomi/20170701172545 -92-225120/menteri-susi-kukuh-buka-data-kapal-meski-banyak-diprotes/.

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Indonesia also cooperates with other States and stakeholders to fight other crimes that are closely linked to iuu fishing, such as human trafficking. In April 2015, the authorities discovered wide-scale human trafficking practices in the fishing industry after hundreds of fishermen from Cambodia, Laos, Myanmar and Thailand were found in Benjina, Maluku, in appalling conditions.262 They had been recruited by a Thai company to work for PT Pusaka Benjina Resources, an Indonesian fishing company.263 Many of these fishermen suffered from physical abuse and received little or no pay for working extremely long hours.264 The Indonesian authorities also discovered a mass graveyard suspected of being the burial ground of many other fishermen.265 After an extensive investigation and a series of trials, eight sea captains and slave masters – five Thai nationals and three Indonesians – were convicted of human trafficking and sentenced to three years’ imprisonment.266 Each of them was also fined approximately USD 12,000.267

262 Robin McDowell & Margie Mason, Over 300 Slaves Rescued from Indonesia Island after AP Investigation into Forced Labor, associated press (Apr. 4, 2015), available at https:// www.ap.org/explore/seafood-from-slaves/over-300-slaves-rescued-from-Indonesia -island-after-ap-investigation.html; Robin McDowell, Margie Mason & Martha Mendoza, AP Investigation: Slaves May Have Caught the Fish You Bought, associated press (Mar. 25, 2015), available at https://www.ap.org/explore/seafood-from-slaves/ap-inves tigation-slaves-may-have-caught-the-fish-you-bought.html; Abby Phillip, Nearly 550 Modern-Day Slaves were Rescued from Indonesia’s Fish Trade and that’s just the Beginning, the washington post (Apr. 10, 2015), available at https://www.washingtonpost.com/ news/morning-mix/wp/2015/04/10/nearly-550-modern-day-slaves-were-rescued-from -indonesias-fish-trade-and-thats-just-the-beginning/. 263 Public Prosecutor v. Surachai Maneephong, Judgment of the Tual District Court No. 108/ Pid.Sus/2015/PN.TUL. (Mar. 10, 2016), available at https://putusan.mahkamahagung .go.id/putusan/cf1e17a1a0d8d15626515bb0e0480fa1, at 99–101, 104–105. 264 Ibid, at 101, 105–106. 265 Elisa Valenta Sari, 77 Kuburan Asing Ditemukan di Lokasi Perbudakan Benjina, cnn indonesia (Apr. 7, 2015), available at https://www.cnnindonesia.com/ekon omi/20150407161042-92-44830/77-kuburan-asing-ditemukan-di-lokasi-perbudakan -benjina/; Elisa Valenta Sari, Benjina, Kisah Perbudakan Ratusan Nelayan di Timur Indonesia, cnn indonesia (Apr. 7, 2015), available at https://www.cnnindonesia.com/ ekonomi/20150407155215-92-44823/benjina-kisah-perbudakan-ratusan-nelayan-di-timur -indonesia/. 266 Public Prosecutor v. Surachai Maneephong, supra note 264, at 118; Public Prosecutor v. Hatsaphon Phaetjakreng, Judgment of the Tual District Court No. 109/Pid.Sus/2015/ PN.TUL. (Mar. 10, 2016), available at https://putusan.mahkamahagung.go.id/putusan/ fccdedcc022331bed0d679c815dec241; Daniel Leonard, 8 Men Sentenced to 3 Years in Jail for Enslaving Fishermen, the jakarta post (Mar. 11, 2016), available at http://www.the jakartapost.com/news/2016/03/11/8-men-sentenced-3-years-jail-enslaving-fishermen .html. 267 Ibid.

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The discovery of human trafficking in Benjina gave impetus to the government’s determination to ensure human rights protection in the fishing industry. The mmaf cooperated with the International Organization for Migration (“iom”) in identifying and addressing key issues pertaining to human trafficking practices in the fishing industry. These issues were discussed in the ASEAN Workshop on Human Trafficking and Forced Labour in the Fishing Indus- try organised by the government and the iom on 15–16 August 2016268 and in the Report on Human Trafficking, Forced Labour and Fisheries Crime in the Indonesian Fishing Industry composed by the mmaf, iom and Coventry University.269 In the regional context, asean member States now have a stronger legal basis to cooperate in combating human trafficking in the fishing industry after the entry into force of the asean Convention against Trafficking in Persons, Especially Women and Children on 8 March 2017.270 Although the Convention does not specifically proscribe fisheries-related human trafficking, it will be interesting to see if and how Indonesia – a country that constantly advocates tougher measures against iuu fishing – will use the Convention to ‘break the silence’ in the region by calling for cooperation against human trafficking in relation to iuu fishing. Moreover, due to the close link between iuu fishing and other crimes, such as human trafficking, drug trafficking, and illegal wildlife trade,271 Indonesia has urged the United Nations and the European Commission272 to classify iuu fishing as a transnational organised crime.273 Such a classification would

268 Menteri Susi Ajak Negara ASEAN Cegah Human Trafficking dan Forced Labor, kkpnews (Aug. 15, 2016), available at http://news.kkp.go.id/index.php/menteri-susi-ajak -negara-asean-cegah-human-trafficking-dan-forced-labor/. 269 International Organization for Migration, Indonesian Ministry of Marine Affairs and Fish- eries, and Coventry University, Report on Human Trafficking, Forced Labour and Fisheries Crime in the Indonesian Fishing Industry (iom, 2016), available at https://www.iom.int/ sites/default/files/country/docs/indonesia/Human-Trafficking-Forced-Labour-and-Fish eries-Crime-in-the-Indonesian-Fishing-Industry-IOM.pdf. 270 See asean Convention against Trafficking in Persons, Especially Women and Children (Kuala Lumpur, Nov. 21, 2015, in force Mar. 8, 2017), available at http:// agreement.asean.org/media/download/20160303122945.pdf. 271 Asydhad, supra note 243. 272 Prashanth Parameswaran, Indonesia Wants Global War on Illegal Fishing, the diplomat (May 9, 2017), available at https://thediplomat.com/2017/05/indonesia-wants-global -war-on-illegal-fishing/. 273 Dwi Atmanta, Minister Susi Ups Ante in Fight against Fisheries Crime at UN, the jakarta post (May 24, 2016), available at http://www.thejakartapost.com/news/2016/05/24/ minister-susi-ups-ante-in-fight-against-fisheries-crime-at-un.html.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 134–171 02:20:21PM via free access 166 Ikrami and bernard open doors for greater cooperation with the Interpol.274 Although Sweden and Norway supported Indonesia’s proposal,275 it seems that Indonesia still has a long way to go before seeing iuu fishing classified as a transnational organised crime.276

5 Towards Better Maritime Governance

Under Widodo, Indonesia has stepped up its efforts to better govern its maritime affairs. Despite its many successes, Indonesia still faces challenges in achieving its goal of becoming a ‘global maritime fulcrum’. In addition to the challenges that have been discussed above, Indonesia still needs to do more to make sure that its pieces of legislation are in order, its institutions and officials are working in unison and well-trained, and all of its policies are consistent with international law, especially unclos. Out of the issues listed above, the lack of capacity and competency of officials is probably the direst one. Although Indonesia has a lot of brilliant officials, some officials are in need of more capacity-building. For example, in December 2016, the Central Jakarta District Court tried an Indonesian national charged with co-perpetrating piracy in the Malacca Strait.277 Both the Indo- nesian Penal Code and Criminal Procedure Code stipulate that Indonesian courts have jurisdiction over certain crimes, including piracy, regardless of the territory where they are committed and the nationality of the perpetrators and/or victims.278 Article 438 of the Indonesian Penal Code – with which the defendant was charged – requires that piracy be committed on the high seas,279 similar to the provision in unclos.280 In this case, the defendant hijacked MT Joaquim, a Singaporean-flagged vessel, and robbed the light cycle oil it was carrying.281 At the time of the crime,

274 Parameswaran, supra note 272. 275 Ibid. 276 Atmanta, supra note 273. 277 Public Prosecutor v. Aan Hana Rambe AKA Budi, Judgment of the Central Jakarta Dis- trict Court No. 1081/Pid.B/2016/PN JKT.PST. (Dec. 8, 2016), available at https://putusan .mahkamahagung.go.id/putusan/69d8ffd6cb3173ad72ca78e156428d35. 278 Penal Code, supra note 26, arts. 3–9, especially 4(4); Law No. 8 of 1981 on the Criminal Procedural Law (State Gazette Year 1981 No. 76, Supplementary State Gazette No. 3258) [Criminal Procedure Code], art. 86 and its Elucidation. 279 Penal Code, supra note 26, art. 438(1)(1); see the charge against the defendant in Public Prosecutor v. Aan Hana Rambe, supra note 277, at 5–14. 280 unclos, supra note 239, art. 101. 281 Public Prosecutor v. Aan Hana Rambe, supra note 277, at 59–64, 14–15.

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MT Joaquim was on Malaysia’s territorial waters.282 Despite the fact that the crime was not committed on the high seas and therefore, did not meet the locus delicti requirement under Article 438 of the Penal Code, the Court found the defendant guilty of piracy and sentenced him to four years and eight months of imprisonment.283 Upon appeal, the Jakarta High Court reaffirmed the defendant’s guilt and increased his sentence to six years’ imprisonment.284 The misapplication of the law might have stemmed from the judges’ misun- derstanding of the definition of the high seas. The judges seem to have mistaken the high seas for any seas outside Indonesia’s territorial waters, including the neighbouring countries’ territorial seas. They appear to have focused on the extraterritorial application of Indonesian laws in cases of piracy, but failed to apply one of its most important elements: that it must take place on the high seas. Subject to certain requirements, the defendant may appeal against this judgment to the Supreme Court.285 This case shows that some judges lack knowledge of international law. Indonesia has been cooperating with international partners to build the capacity of judges,286 but it would need to ensure that these efforts will be continuous and sustainable. Another problem that Indonesia is facing is the fact that there are numerous agencies with overlapping powers and jurisdictions in enforcing ocean and maritime laws. There are at least five agencies responsible for the enforcement of marine and fisheries laws: the Directorate of Sea and Coast Guard (“dscg”),287 the Marine Police, the Navy, Bakamla, and the Fishery Supervisors.288 The boundaries between their respective functions are not always clear. For instance, all of them have been involved in efforts to appre- hend illegal fishing vessels.289 Furthermore, it is also unclear whether the

282 Ibid, at 10–11. 283 Ibid, at 68. 284 Public Prosecutor v. Aan Hana Rambe AKA Budi, Judgment of the Jakarta High Court No. 18/PID/2017/PT.DKI (Feb. 9, 2017), available at https://putusan.mahkamahagung .go.id/putusan/ba6f24bf8ba60059f53ba4164a5bcd9e. 285 Criminal Procedure Code, supra note 278, arts. 244–258, 263–269. 286 See Support for Reform of the Justice Sector in Indonesia (SUSTAIN), undp in Indonesia, available at http://www.id.undp.org/content/indonesia/en/home/operations/projects/ democratic_governance/saji-project1.html; “Judicial Sector Support Program,” Center for International Legal Cooperation, available at http://www.cilc.nl/project/jssp/. 287 The dscg is within the purview of the Ministry of Transportation Directorate-General of Sea Transportation. mot Organisation and Procedure Regulation, supra note 53, arts. 260, 384–385. 288 See supra notes 62–67, 71–73 and accompanying text. 289 Bartanius Dony, Polisi Kembali Tangkap 4 Kapal Vietnam Terkait Illegal Fishing, detiknews (Apr. 22, 2017), available at https://news.detik.com/berita/d-3481661/ polisi-kembali-tangkap-4-kapal-vietnam-terkait-illegal-fishing; Fajar Pratama, TNI AL

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Marine Police, Navy, and Bakamla always have to act jointly under the auspices of the Illegal Fishing Task Force in combating illegal fishing.290 On a few occa- sions, they apprehended suspected poachers individually, outside the purview of the Task Force.291 By law, Bakamla is the institution responsible for coordinating and inte- grating the functions of all agencies in charge of maritime security and safety under a single command.292 In practice, however, it is difficult to do so. Baka- mla was only established in 2014293 with only three vessels.294 It had to borrow vessels from the Navy and Marine Police to carry out its functions.295 Although the Navy, the mmaf, and the Coordinating Ministry for Maritime Affairs have all pledged to give some of their respective vessels to Bakamla,296 it still only had six vessels as of 30 August 2016.297 Besides this lack of resources, Baka- mla also suffers from a lack of personnel.298 The fact that many of Bakamla’s assets are lent or given by the same agencies it should coordinate299 might make Bakamla look toothless to those agencies and thus, it is not surprising if

Tangkap Kapal Ikan Berbendera Cina di Perairan Natuna, detiknews (Jun. 18, 2016), available at https://news.detik.com/berita/3236344/tni-al-tangkap-kapal-ikan-berbendera -cina-di-perairan-natuna; Enni, Operasi Nusantara IV Bakamla Tangkap Tiga Kapal Illegal Fishing di Perairan Natuna, bakamla (May 4, 2016), available at https://www.bakamla.go .id/home/artikel_lengkap/2445/0aa1d55481bbb6c0802be527e57dbc56; Kapal Pengawas Perikanan Tangkap 8 Kapal Vietnam, Directorate-General of the Monitoring of Marine and Fishery Resources – Pontianak Station, available at http://djpsdkp.kkp.go.id/ arsip/c/412/Kapal-Pengawas-Perikanan-Tangkap-8-Kapal-Vietnam/?category_id=39& sub_id=; Director-General of Sea Transportation’s Notice to Port Masters No. 27/II/DN-15 on Vessels Suspected of iuu Fishing (Feb. 3, 2015), signed by the Director of Sea and Coast Guard, available at http://hubla.dephub.go.id/publikasi/Maklumat%20Pelayaran/ image13-2015_02_06-10_07_14.pdf. 290 See supra notes 74–79 and accompanying text. 291 See Donny; Pratama; Enni, supra note 289. 292 Ocean Law, supra note 27, arts. 61–63. 293 Ibid, art. 59(3). 294 Halimatus Sa’diyah, Bertugas Jaga Kemanan Laut, Bakamla Hanya Punya Tiga Kapal, edited by Esthi Maharani, republika (May 27, 2015), available at http:// nasional.republika.co.id/berita/nasional/politik/15/05/27/np079n-bertugas-jaga -kemanan-laut-bakamla-hanya-punya-tiga-kapal. 295 Suara Pembaruan, Bakamla Dapat Aset Awal 10 Kapal TNI AL, berita satu (Jan. 10, 2015), available at http://sp.beritasatu.com/home/bakamla-dapat-aset-awal-10-kapal-tni-al/ 74599. 296 Ibid. 297 Kristian Erdianto, Kurang Peralatan dan Personel, Bakamla Diminta Tingkatkan Koor- dinasi dengan TNI AL, kompas.com (Aug. 30, 2016), available at http://nasional .kompas.com/read/2016/08/30/21275611/read-brandzview.html. 298 Ibid. 299 Supra notes 292–296 and accompanying text.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 169 many of these agencies are reluctant to accept Bakamla’s authority to coordinate them. After all, some agencies – such as the Navy – are much older, much more powerful, and equipped with more resources than Bakamla. The difficulty in coordinating those institutions cannot be separated from inter-agency competition that has long been plaguing Indonesia’s maritime governance. For instance, the Shipping Law governs the Sea and Coast Guard (“scg”), which is in charge of ensuring safety and security of navigation, protecting the marine environment, and enforcing the law at sea.300 When the Shipping Law was enacted in 2008, the Ministry of Transportation interpreted the provisions regarding the scg under the Law as referring to the dscg.301 However, when Bakamla was established under the Ocean Law six years later, the Coordinating Minister for Politics, Law, and Security understood that Bakamla was the scg under the Shipping Law.302 This may be due to some similarities between Bakamla’s functions and those of the scg under the Ship- ping Law.303 On the other hand, some opine that Indonesia does not yet have an scg, since neither the dscg nor Bakamla is the scg as stipulated under the Shipping Law.304 Some suggest that the dscg and Bakamla should be merged to form the scg.305 Otherwise, the government should clarify the functions of Bakamla; whether it is meant to be the scg as provided by the Shipping Law, and if not, what institution should play that role. Likewise, the tasks and functions of all the agencies responsible for maritime security should also be clarified so as to eliminate the overlap of powers amongst them.

300 Shipping Law, supra note 18, arts. 276–279. 301 Supriyanto and Rusdi, supra note 66, at 2; see supra note 287. 302 Abraham Utama, Tumpang-tindih Aturan Penegakan Hukum Maritim, cnn indonesia (Oct. 5, 2015), available at https://www.cnnindonesia.com/nasional/20151004163018-20 -82691/tumpang-tindih-aturan-penegakan-hukum-maritim/. 303 Compare Ocean Law, supra note 27, arts. 61–63 and PR 178/2014, supra note 67, arts. 2–4 to Shipping Law, supra note 18, arts. 276–278. 304 Anggi Kusumadewi and Tiara Sutari, Jokowi Diminta Tak Pakai Kapal Perang Hadapi Masalah Ikan, cnn indonesia (Jun. 27, 2016), available at https://www.cnnindonesia .com/nasional/20160627133453-20-141235/jokowi-diminta-tak-pakai-kapal-perang -hadapi-masalah-ikan; Hadijah Alaydrus, Ide Jonan Membentuk Ditjen Penjagaan Laut & Pantai Dikritik, bisnis.com (Jun. 11, 2015), available at http://industri.bisnis.com/ read/20150611/98/442574/ide-jonan-membentuk-ditjen-penjagaan-laut-pantai-dikritik. 305 Muhamad Hilman, Sea Coast Guard Kian Mendesak, bisnis.com (Aug. 25, 2014), available at http://industri.bisnis.com/read/20140825/98/252435/sea-coast-guard-kian -mendesak; Dirjen Tonny: Tak Ada Rencana KPLP Digabung Ke Bakamla, beritatrans (Aug. 17, 2016), available at http://beritatrans.com/2016/08/17/dirjen-tonny-tak-ada -rencana-kplp-digabung-ke-bakamla/.

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Indonesia also needs to ensure that its policies are in accordance with international law, including unclos. A lot of questions have been raised on the legality of Indonesia’s ‘burn the vessels’ policy. Article 69(4) of the Fisher- ies Law provides that upon collecting sufficient preliminary evidence,306 the authorities may burn and sink vessels that have violated that Law307 in the Indonesian fisheries management territory,308 which includes the eez.309 Pur- suant to this provision, the government had blown up 317 vessels as of April 2017, the majority of which were found to have committed iuu fishing.310 They include Chinese, Malaysian, Papua New Guinean, Philippine, Thai and Viet- namese-flagged vessels.311 The statistics, however, do not provide details of how many vessels were captured in the Indonesian eez, territorial waters, or archipelagic waters. This distinction matters. Article 73(2) of unclos provides that in the event that the coastal State arrests a vessel and/or its crew for alleged violations of its laws in its eez, the State must promptly release the vessel and crew after a reasonable bond or other security is posted.312 Thus, the owners and/or operators of those vessels captured in the Indonesian eez could have paid bonds to Indonesia and asked for their vessels to be promptly released. However, the government has not taken Article 73(2) of unclos into serious consideration, as shown by the high number of the vessels destroyed and the government’s pledge to continue sinking illegal fishing vessels.313 It is unlikely that Indonesia would change Article 69(4) of the Fisheries Law anytime soon. The sinking of vessels policy enjoys a wide popular support in Indonesia,314 fuelled by the government’s narrative that its anti-iuu fishing

306 “Sufficient preliminary evidence” includes evidence that the ship was caught red-handed fishing without a license. Fisheries Law, supra note 35, Elucidation of art. 69(4); Ikrami, supra note 1, at 322. 307 Fisheries Law, supra note 35, art. 69(4); Ikrami, supra note 1, at 321–322. 308 Fisheries Law, supra note 35, art. 69(1). 309 Ibid, art. 5(1). 310 Fabian Januarius Kuwado, Lagi, 81 Kapal Pencuri Ikan Ditenggelamkan di Penjuru Indonesia, kompas.com (Apr. 1, 2017), available at http://nasional.kompas.com/read/ 2017/04/01/12003881/lagi.81.kapal.pencuri.ikan.ditenggelamkan.di.penjuru.indonesia; Ikrami, supra note 1, at 322. 311 Ibid. 312 unclos, supra note 239, art. 73(2). 313 Fabian Januarius Kuwado, Alasan Menteri Susi Tak Akan Berhenti Tenggelamkan Kapal Pencuri Ikan, kompas.com (Oct. 29, 2017), available at http://nasional.kompas.com/ read/2017/10/29/19290471/alasan-menteri-susi-tak-akan-berhenti-tenggelamkan-kapal -pencuri-ikan. 314 See Ambaranie N. M. Movanita, Survei Kinerja Menteri, Susi Pudjiastuti Terbaik dan Anies Mengejutkan, kompas.com (Mar. 22, 2017), available at http://nasional.kompas

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 134–171 02:20:21PM via free access Indonesia’s Maritime Governance 171 measures are aimed at preserving and upholding the country’s sovereignty in the face of foreign poachers.315 The government also regularly publishes statistics showing an increase in Indonesia’s maximum sustainable yield,316 people’s consumption of fish,317 and gdp and economic growth rate in the fisheries sector,318 all of which are aimed at attesting to the success of the policy of sinking vessels.319 However, along with this success, Indonesia also needs to be aware that its right to enforce its own laws comes with a set of international obligations. Indonesia’ success in closing the gap between the exercise of its rights and compliance with its obligations will determine its success in building a robust maritime governance.

.com/read/2017/03/22/16022611/survei.kinerja.menteri.susi.pudjiastuti.terbaik.dan.anies .mengejutkan. 315 Kuwado, supra note 313. 316 Lilly Aprilya Pregiwati, Menteri Susi: Kenaikan MSY Salah Satu Manfaat Perang Melawan Illegal Fishing, Ministry of Marine Affairs and Fisheries Republic of Indonesia (Jun. 16, 2017), available at http://kkp.go.id/2017/06/16/menteri-susi-kenaikan-msy-salah-satu -manfaat-perang-melawan-illegal-fishing/; Ikrami, supra note 1, at 330. 317 Ibid. 318 PDB Perikanan Meningkat Selama 2011–2015, kkp news (Mar. 29, 2016), available at http://news.kkp.go.id/index.php/pdb-perikanan-meningkat-selama-2011-2015/; Ikrami, supra note 1, at 330. 319 Kuwado, supra note 313.

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