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.
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 unprecedented actions against illegal fishing, such as blowing up poaching vessels.4 In order to ensure smooth cooperation and communication between the different 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 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 Preventing 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 Unregulated 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 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 Shipping 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 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 supplemented 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 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 Ministry 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 Indonesian Ocean Policy 2016–2019, which aims to “implement various programs 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 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 drafting maritime-related Laws for the President’s approval;57 Ministry of Foreign Affairs, which engages with other countries in promoting and protecting Indonesia’s maritime interests;58 Ministry of Home Affairs, whose responsibilities include determining State boundaries, including those surrounding the outermost 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
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 Indonesia’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 Informatics and Ministry of the Empowerment of State Organs and Bureaucracy Reform are coordinated by the Coordinating Ministry for Politics, Law, and Security.70
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 hearing final appeals and conducting certain judicial reviews oversees the District Courts, which serve as courts of first instance, and the High Courts, which act 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 examine 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 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 gear prohibited under MMAF Regulation No. 2/PERMEN-KP/2015.98 Consequently, 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 Constitutional 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 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 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 Commercial Code.125 The Court did not elaborate those provisions and subsequently 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 examination 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.
4 Maritime Cooperation
This section looks at maritime cooperation in four fields that represent Indonesia’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 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 Ministers’ Meeting – Plus,147 which have conducted military exercises since 2013.148 Indonesia also participated in the Southeast Asia Cooperation and Training, an initiative led by the US involving South and Southeast Asian nations.149 Indonesia 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 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 potential threats to the security of ships or port facilities and enable States to take measures against those threats.167
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 Committee, 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 interested 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 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 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 joining 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 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 prepared 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 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 Working 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 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 British national;225 file a civil law suit;226 and/or take the case before the International 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 Ambassador 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 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 Bahamas 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 Fishing
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 Agreement, 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 However, the low number of ratifications of the Agreement by ASEAN members 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 occasions, such as at the 29th ASEAN Summit Retreat,250 2016 ASEAN-US Summit,251 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
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
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 Industry 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 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 Indonesian 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, 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’ misunderstanding 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 apprehend illegal fishing vessels.289 Furthermore, it is also unclear whether the 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 occasions, they apprehended suspected poachers individually, outside the purview of the Task Force.291
By law, Bakamla is the institution responsible for coordinating and integrating 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. Bakamla 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, Bakamla 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 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 Shipping 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.
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 Fisheries 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 Pursuant 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 Vietnamese-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 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.