The news of sinking foreign ships that steal fishes in Indonesian territorial waters lately has become more widespread. Almost all mass media preach about this government action. This action is not new in Indonesia, it’s just that the news has just been noticed by the media, and it is considered unusual therefore it gets attention from the public.
In this era of globalization where relations between countries become something important, especially Indonesia’s relationship with countries in ASEAN the strict action of a country to foreigners will of course affect the good relations of both countries. If we look through the case of the sinking of this foreign ships, then the Indonesian government’s actions that bombing the foreign ships without negotiate with its home country can be inferred to affect the good relations of both countries.
Fishery Law in Indonesia
However, before we criticized Indonesian government strict action, it is better if we look at this problem from the angle of law, where Indonesia is a state law and all of activities done in Indonesia must be protected and based on the applicable law.
Under the law No. 45 year 2009 about Fishery Article 69 clause (4) stated “In doing functions as mentioned in clause (1) investigating officer and/or fishery controller can do special action like burning and/or sinking fishery ships with foreign flag based on sufficient initial evidence. This article gives Indonesian fishery investigator and controller to have rights to do special action such as sinking the foreign ships with sufficient initial evidence, accordance the explanation of this article; what it means by “sufficient initial evidence” is the presumptive evidence of the fishery crime by the fishery ships with foreign flags, the example of criminal offense in fish stealing is catches or transports the fishes when entering the territory of the Indonesia fishery management.
After looking at the article the process of sinking the ship of course not a careless action by bombing it but with the process of checking the letters of the ships and other evidentiary as mentioned in the article that it needs sufficient initial evidence.
Indonesia under the law No. 17 year 1985 has ratify UNCLOS that is United Nations Convention on the Law of the Sea, which is interpreted as Konvensi Perserikatan Bangsa-Bangsa Tentang Hukum Laut (in Indonesian Language) which is about international law regarding marine. This makes Article 102 (3) in the Fishery Law have to follow the rule decided in Article 102 (3) which provides that the punishment for a fishery crime committed in the Exclusive Economic Zone shall not constitute confinement, unless the agreement of the two sides of the country.
This makes Article 69 clause 4 which contains a criminal threat of a maximum of 6 years to a fishery crime by a foreign country becomes invalid if there is no agreement from both countries, the penalty they get is only a fine of at most 20 billion rupiah and deported to the country of origin.
At least from the legal aspects the decisive action of ships submersion by means of bombing is not contradictory to UNCLOS because the subject protected by Article 73 (3) is the human being not the ships, in which the human being can be fined or deported without being imprisoned while the ships can be seized or even drowned by the Indonesian Government, of course with an accordance processes with applicable legal procedures in that country.
But it is different when viewed in the view of international relations. Indonesia’s relations with the related country can potentially deteriorate due to this problem. This is because often the sovereign state wants its citizens to be tried according to the laws of their country, the law that is deemed to protect the rights of its citizens. Not to mention the pressure of interest from several parties from the country.
Mafia Ship Auction Practices
Actually there are several choices of actions that can be taken by the government on such a case, for example by the seizure or grant of the ship without the need for ships sinking this is clearly mentioned in the article of fisheries law. However, the existence of embezzlement and mafia fishery practices that can provide benefits to fish thieves make the Indonesian government was forced to do the sinking of this ship to provide a deterrent effect.
According to the Director General of Supervision and Control of Marine and Fishery Resources of the Ministry of Marine Affairs and Fisheries of Indonesia Aji Sularso, the existence of mafia fishery practices in the case of foreign ship auction is by way of cooperation between foreign ships owners with fishery mafia in Indonesia, with ship price estimate of 1, 5 billion Rupiah, then the Indonesian fishery mafia will get the money up to 50% of the price of the ships or about 750 million rupiah.
At the auction of the ship the domestic companies are arranged in one group so no one bid above Rp.150 million; then Rp.150 million is still entered into the state treasury. The next division is Rp.600 million will be distributed to various parties, especially the Prosecution as public prosecutor as well as the auction organizer. There have been many cases that recorded the seized ships prices only around 150 million Rupiah but the money entered into the state treasury only about 40 million Rupiah. Moreover the ship can return to its owner and operate stealing fish in Indonesia again.
This practices makes the Indonesian government prefers to sink the ship rather than auction it off. The fact showed that the auction with practices of mafia fishery can only be detrimental to the State of Indonesia because the cost of catching operations, the cost of ships adhoc, ship docking and feeding crew during the litigation is not commensurate with the results of auctions that go into the state treasury.
As a result of this sinking of foreign ships many foreign ships in Indonesian waters territory are almost empty based on data from satellite monitoring. It can be said that this way is proved effective in making illegal foreign ships no longer operate in the territorial sea of Indonesia.
The foreign fishing ships in Indonesia have made huge losses for Indonesia and even estimated losses of up to Rp.300 trillion per year. The magnitude of the state loss is supported by the estimation of Indonesian Marine and Fishery Minister Susi Pudjiastuti, she said that the catch of a foreign ship in Indonesian waters territory could reach 300 tons to 600 tons per year, the illegal fishing catchers not only catch cobs but also shrimp, pelagic fish, red snapper; which if calculated-calculated Indonesia loses US $ 15 billion to US $ 25 billion per year.
From the things mentioned above, it can be concluded that the act of declaring the sinking of a foreign ship which steals fishes is not a wrongful act by law. In terms of law there is no article that regulates or prohibits the drowning of fishing thief ships, although the existence of other penalty option that is grant or auction of the ships but the existence of mafia fishery practices in Indonesia make the punishment is diverted and even harm the state. While this may allow for conflict or relations between nations to be bad, a good State should be a state against all forms of crime committed by its citizens in other countries and respect any policies and laws prevailing in other countries. The middle ground of this problem is the holding of inter-state agreements on foreclosures, auctions, or sinking of foreign ships, this of course aims to maintain good relations between countries and also to suppress illegal acts.
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This article was written by Clay Vulcano Dharanindra, research fellow at the Center for Southeast Asian Social Studies (CESASS).