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Southeast Asia

Prospects and Challenges for Indonesia to Counter IUU Fishing as a Transnational Organized Crime

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Authors: Ahmad Almaududy Amri Ph.D and Aloysius Selwas Taborat LL.M*

Ocean governance has never been so crucial as it is now since the conclusion of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. The myriad and multifaceted dimensions of ocean governance have intertwined in a complex manner.

Major impacts of climate change as exhibited in a growingly warmer and acidic global ocean, rising sea level, and the retreating of sea ice (2020 Copernicus Ocean State Report) continue to pose existential problems to policy makers worldwide. On the other front, ocean governance is tightly related to global development agenda, the United Nations Sustainable Development Agenda (Agenda 2030).

Against the backdrop of this global landscapes, the question about how to better address illegal, unreported, and unregulated fishing (IUUF) rise to eminence. A 2019 Blue Paper titled “Illegal, Unreported and Unregulated Fishing and Associated Drivers”, commissioned by the High Level Panel for A Sustainable Ocean Economy, asserts that IUUF is, among others, a criminal and human rights phenomenon.

The Paper also pointed out that “…although many efforts to stem IUU Fishing are international, national governments must initiate much of the action, including regulating their own coastal fisheries, enacting regulations at ports of entry, ratifying international agreements, and employing new tracking and transparency technologies”. Indeed, not an easy feat for national policy makers. They have to tame the recalcitrance of both global and domestic fabric of policies.

In such a context, policy makers are under constant pressure to cater and deliver to the specificity of IUUF problems and challenges that besieged the extent and possibilities of their policy arsenals. And in the Indonesian context, we argue that such dilemma concerns with the fundamental question of to what extent should IUUF be addressed from a criminal and law enforcement perspective. In other words, how can a criminal and law enforcement approach to IUUF can complement Indonesia’s policy to address IUUF’s environmental and developmental dimension. We attest, that a criminal and law enforcement approach to IUUF is indeed plausible and imperative.

One of the most pressing issues in the combatting of IUUF from a criminal and law enforcement perspective is whether a penal sanction can be applied in the Exclusive Economic Zone (EEZ), the maritime domain where IUUF occurs the most. In 2016, at the 25th Session of the Commission on Crime Prevention and Criminal Justice (CCPCJ), the Indonesian Government introduced IUUF as transnational organized crime (TOC).The criminalization of IUUF as TOC, provided the legal framework to justify the enforcement of penal sanctionsin any maritime zones, notwithstanding EEZ. Punitive approach is critical to deter future IUUF practices.

The current global landscapes and domestic context, particularly with the growing importance of ocean governance, provides an impetus for Indonesia to rethink and reconsider its strategy in combatting IUUF as a TOC. After all, global efforts to address this issue must be anchored on a forceful initiative and measure at domestic level, if goals or commitments were to ever work at all. Hence, the following strategies can therefore be considered.

I. Usage of appropriate term

IUUF is a well-defined term particularly by the Food and Agriculture Organization (FAO) and considered as an act violating administrative regulations (fisheries management concern). Thus, in accordance with this understanding, IUUF conducted in EEZ cannot be penalized. To address this, the term IUUF should be changed. Terms such as fisheries crime may be the best option.

II. Proposing resolutions at regional and multilateral forums

Garnering international support is a must. Efforts at regional and global levels must be strengthened with tailor-made approach to every cooperative platform.

In 2007, together with United States and Timor Leste, Indonesia sponsored an ASEAN Regional Forum (ARF) Statement on Cooperation to Prevent, Deter, and Eliminate IUUF. The preamble paragraph stipulated that ARF is working to ensure that national legislation and enforcement regimes provide appropriate administrative, civil, and/or penal sanctions to prevent, deter, and eliminate IUUF. This statement is critical as a stepping-stone in raising awareness about IUUF and how penal sanctions may be applicable in the future. But this statement alone is insufficient. It is imperative to endorse this idea in a more global scale.

CCPCJ has indeed acknowledged fisheries crime as an emerging crime. However, CCPCJ is still weighing the possibility to classify fisheries crimes as TOC. Indonesia can identify the possibility to initiate a resolution on this issue in CCPCJ.

III. Usage of relevant international legal frameworks

a. UNCLOS

Article 73 (3) UNCLOS stipulates that violation of fisheries laws and regulations of the coastal state’s EEZ may not include imprisonment and other forms of corporal punishment. Nonetheless, it provides avenue shall states wish to impose other kinds of punishments/sanctions. But such sanctions should be first agreed by other contracting states in a form of an agreement. The said agreement should clearly stipulate the kinds of punishments/sanctions enforced to the perpetrators conducting illegal fishing in the EEZ. Indonesia can capitalize this provision by negotiating such agreement bilaterally, regionally or multilaterally.

b. UNTOC

United Nations Convention against Transnational Organized Crimes (UNTOC) has explicitly listed the criteria of crimes that can be categorized as serious crimes. Article 3 (1) mentions that a crime is a serious crime if the offence is transnational in nature and involves organized criminal groups. Indonesia can utilize UNTOC to categorize fisheries crimes as TOC and to make it a new predicate crime hence creating a new legal norm.

IV. Domestic efforts

Indonesia should revise its domestic law to accord with the said efforts. The current Fisheries Act No. 31/2004 (as amended by Act No. 45/2009) has no penal sanctions. Additionally, Circular Letter of the Supreme Court (SuratEdaran Mahkamah Agung) No. 3/2015 in point 3 supported Article 73 (3) UNCLOS which in principle stated that perpetrators conducting IUUF activities in the Indonesian EEZ can only be asked to pay fine (reasonable bond) and not imprisonment.

Modification to the existing laws is inevitable if Indonesia were to go all the way in making IUUF or fisheries crimes as TOC. Most of the cases in Indonesia, IUUF perpetrators are not able to pay fines. The practice in Australia might serve as a reference, whereby it imposes imprisonment as a subsidiary punishment to fine. If the perpetrators unable to pay fine, the fine would be converted to number of days in prison.

Efforts to categorize IUUF or fisheries crimes as TOC will require lengthy process at both domestic and international level. Nevertheless, a meaningful step by Indonesia to address IUUF in a non-business as usual manner will serve as a building block to the global efforts.

*Aloysius Selwas Taborat LL.M holds LL.M degree from Washington College of Law, American University.

DISCLAIMER: Views expressed above are the authors’ own.

The writer holds Ph.D. degree from the Australian National Center for Ocean Resources and Security (ANCORS), University of Wollongong, Australia.

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Southeast Asia

Learning to build a community from a ”Solok Literacy Community”in the West Sumatra

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Established on September 21, 2020 in Solok City, West Sumatra Province, Indonesia. Solok Literacy Community initiated by the young people of Solok City has grown rapidly into a community that has its own trendsetter among young people. Bringing narratives smelling of education, The Literacy Solok Community has a movement with measurable progressiveness that can be seen from its flagship programs.

Starting from the free reading stall movement that has been moving in various corners of Solok City over the past few months. The concept of film surgery that provides proactive discussion space for all segmentation in society. “Diskusi Ngopi” activities which in fact is the concept of FGD (Focus Group Discussion), run with interesting themes and issues so that it can be considered as one of the favorite programs that are often attended by many young people in Solok. Then a class of interests and talents aimed at reactivating the soft skills and great talents of the children of Solok City.

Solok Literacy Community has a long-term goal of making Solok City as a Literacy City in 2025. With these noble targets, of course we together need small steps in the form of programs that run consistently over time. Because after all, a long journey will always begin with small steps in the process of achieving it.

Many appreciations and positive impressions from the surrounding community continue to be received by the Solok Literacy Community. This is certainly a big responsibility for the Solok Literacy Community to continue to commit to grounding literacy in Solok City. Solok Literacy Community activities can be checked directly through instagram social media accounts @solok_literasi. Carrying the tagline #penetrategloomy or penetrating the gloom and #lawanpembodohan, members of the Solok Literacy Community or better known as Soliters, will always make innovative breakthroughs in completing the goal of making Solok City 2025 as a Literacy City.

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Southeast Asia

Indonesia Submit Extended Continental Shelf Proposal Amidst Pandemic: Why now is important?

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Authors: Aristyo Rizka Darmawan and Arie Afriansyah*

Indonesia’s active cases of coronavirus have been getting more worrying with more than 100.000 active cases. With nearly a year of pandemic, Indonesia’s not only facing a serious health crisis but also an economic catastrophe. People lose their jobs and GDP expected to shrink by 1.5 percent. Jakarta government therefore should work hard to anticipate the worst condition in 2021.

With this serious economic threat, Indonesia surely has to explore maximize its maritime geographic potential to pass this economic crisis and gain more national revenue to recover from the impact of the pandemic. And there where the Extended Continental Shelf submission should play an important role.

Recently this week, Indonesia submit a second proposal for the extended continental shelf in the southwest of the island of Sumatra to the United Nations Commission on the Limit of the Continental Shelf (CLCS). Continental shelf is that part of the seabed over which a coastal State exercises sovereign rights concerning the exploration and exploitation of natural resources including oil and gas deposits as well as other minerals and biological resources.

Therefore, this article argues that now is the right time for Indonesia to maximize its Continental Shelf claim under the law of the sea convention for at least three reasons.

First, one could not underestimate the economic potential of the Continental Shelf, since the US Truman Proclamation in 1945, countries have been aware of the economic potential from the oil and gas exploration in the continental shelf.

By being able to explore and exploit natural resources in the strategic continental shelf, at least Indonesia will gain more revenue to recover the economy. Even though indeed the oil and gas business is also hit by the pandemic, however, Indonesia’s extended continental shelf area might give a future potentials area for exploitation in long term. Therefore, it will help Indonesia prepare a long-term economic strategy to recover from the pandemic. After Indonesia can prove that there is a natural prolongation of the continental shelf.

Second, as the Indo-Pacific region is getting more significant in world affairs, it is strategic for Indonesia to have a more strategic presence in the region. This will make Indonesia not only an object of the geopolitical competition to utilize resources in the region, but also a player in getting the economic potential of the region.

And third, it is also showing that President Joko Widodo’s global maritime fulcrum agenda is not yet to perish. Even though in his second term of administration global maritime fulcrum has nearly never been discussed, this momentum could be a good time to prove that Indonesia are still committed to the Global maritime fulcrum by enhancing more maritime diplomacy.

Though this is not the first time Indonesia submit an extended Continental Shelf proposal to the CLCS, this time it is more likely to be accepted by the commission. Not to mention the geographical elements of natural prolongation of the continental shelf that has to be proved by geologist.

The fact that Indonesia has no maritime border with any neighboring states in the Southwest of Sumatra. Therefore, unlike Malaysia’s extended continental shelf proposal in the South China Sea that provoke many political responses from many states, it is less likely that Indonesia extended continental shelf proposal will raise protest from any states.

However, the most important thing to realize the potential benefit of the extended continental shelf as discussed earlier, Indonesia should have a strategy and road map how what to do after Indonesia gets the extended continental shelf.

*Arie Afriansyah is a Senior Lecturer in international law and Chairman of the Center for Sustainable Ocean Policy at University of Indonesia.

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Southeast Asia

The China factor in India’s recent engagement with Vietnam

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Photo courtesy - PTI

In its fourth year since the elevation of ties to a Comprehensive Strategic Partnership, December 2020 witnessed an enhanced cooperation between New Delhi and Hanoi, ranging from humanitarian assistance and disaster relief to defence and maritime cooperation, amid common concerns about China.

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In an effort to boost defence cooperation, the navies of India and Vietnam conducted atwo-day passage exercise (Passex) in the South China Sea on December 26 and 27, 2020, reinforcing interoperability and jointness in the maritime sphere. Two days before this exercise has begun, an Indian naval ship arrived at Nha Rong Port in Ho Chi Minh City to offer humanitarian assistance for the flood-affected parts of Central Vietnam.

Before this, in the same week, during a virtual summit between Indian Prime Minister Narendra Modi and his Vietnamese counterpart Nguyen Xuan Phuc on December 21, both countries inked seven agreements on miscellaneous areas of cooperation and jointly unveiled a vision and plan of action for the future, as both countries encounter the common Chinese threat in their respective neighbourhoods.

Vietnam’s disputes with China

India’s bone of contention with China ranges from the Himalayas to the Indian Ocean. Both Vietnam and India share territorial borders with China. Well, it seems odd that despite its common socialistic political backgrounds, China and Vietnam remains largely hostile. 

Having a 3,260 km coastline, covering much of the western part of South China Sea, Vietnam’s exclusive economic zone (EEZ) overlaps with Chinese claims based on the legally invalid and vaguely defined Nine-Dash Line concept, unacceptable for all the other countries in the region, including Vietnam, Philippines, Malaysia, and Brunei.

In 2016, China lost a case brought out by the Philippines at the Permanent Court of Arbitration based in The Hague when the court ruled that Beijing’s had no legal basis to claim ‘historic rights’ as per the nine-dash line. China rejected the ruling and continued to build artificial islands in the South China Sea, which it has been doing since 2013, some of them later militarized to gain favourable strategic footholds in the sea and the entire region.

The Paracel and the Spratly Islands in the South China Sea has been historically considered part of Vietnam. The Geneva Accords of 1954, which ended the First Indochina War, gave the erstwhile South Vietnam control of territories south of the 17th Parallel, which included these island groups. But, China lays claims on all of these islands and occupies some of them, leading to an ongoing dispute with Vietnam.

China and Vietnam also fought a border war from 1979 to 1990. But today, the disputes largely remain in the maritime sphere, in the South China Sea.

China’s eyes on the Indian Ocean

The Indian Ocean has been long regarded as India’s sphere of influence. But with the Belt and Road Initiative, a trillion-dollar megaproject proposed by Chinese President Xi Jinping in 2013, and the Maritime Silk Road connecting three continents, which is part of it, China has grand ambitions in the Indian Ocean. Theories such as ‘String of Pearls’ shed light on an overambitious Beijing, whichattempts to encircle India with ports and bases operating under its control.

China has also opened a military base in Djibouti, overlooking the Indian Ocean, in 2017 and it has also gained control of the strategic port of Hambantota in the southern tip of the island of Sri Lanka, the same year.

Chinese presence in Gwadar in Pakistan, where the Maritime Silk Route meets the land route of BRI, is also a matter of concern for India. Moreover, the land route passes through the disputed Gilgit-Baltistan region, which is under Pakistani control, but is also claimed by India.  China has also been developing partnerships with Bangladesh and Myanmar to gain access to its ports in the Bay of Bengal.

Notwithstanding all this, India’s response has been robust and proactive. The Indian Navy has been building partnership with all the littoral states and small island states such as Mauritius and Seychelles to counter the Chinese threat.

India has also been engaged in humanitarian and developmental assistance in the Indian Ocean region, even much before the pandemic, to build mutual trust and cooperation among these countries. Last month, India’s National Security Adviser Ajit Doval visited Sri Lanka to revive a trilateral maritime security dialogue with India’s two most important South Asian maritime neighbours, the islands of Sri Lanka and the Maldives.

Foe’s foe is friend

The Indian Navy holding a Passex with Vietnam in the South China Sea, which is China’s backyard, is a clear message to Beijing. This means, if China ups the ante in the Indian Ocean or in the Tibetan border along the Himalayas, India will intensify its joint exercises and defence cooperation with Vietnam.

A permanent Indian presence in the South China Sea is something which Beijing’s never wish to see materialise in the new future. So, India’s engagement with Vietnam, which has a long coast in this sea, is a serious matter of concern for Beijing.

During this month’s virtual summit, Prime Minister Modi has also reiterated that Vietnam is a key partner of India in its Indo-Pacific vision, a term that Beijing vehemently opposes and considers as a containment strategy against its rise led by the United States.

Milestones in India-Vietnam ties – a quick look-back

There was a time when India supported Vietnam’s independence from France, and had opposed US-initiated war in the Southeast Asian country in the latter half of the previous century. Later, India hailed there-unification of North and South Vietnams.

Even though India maintained consulate-level relations with the then North and South Vietnams before the re-unification, it was elevated to ambassadorial level in 1972, thereby establishing full diplomatic ties that year.

During the Vietnam War, India supported the North, despite being a non-communist country, but without forging open hostilities with the South. Today, India partners with both France and the United States, Vietnam’s former colonizers, in its Indo-Pacific vision, comfortably along with Vietnam as geopolitical dynamics witnessed a sea change in the past few years and decades.

Way ahead

Today, these two civilizational states, sharing religio-cultural links dating many centuries back, is coming together again to ensure a favourable balance of power in Asia. Being a key part of India’s ‘Act East’ policy and ‘Quad Plus’ conceptualisation, Vietnam’s role is poised to increase in the years to come as China continues to project its power in Asia and beyond.

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