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
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.
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.
Visit of Chinese Foreign Minister to Southeast Asia
Following the visit of Kamala Harris, the vice president of the USA to Vietnam and Singapore, the Chinese foreign minister Wang Yi visited the two countries as well as Cambodia to engage the regional players. Vietnam has become the cynosure of major powers such as the US, Japan, and China. The visit of Japanese Defence minister and the US defence secretary happening within a period of three months. US defence secretary visited Vietnam in July 2021 while the Japanese defence minister visited Vietnam in September 2021.
Given the hyper activism which was shown by the two members of the Quad, the Chinese foreign minister sensing these strategic dynamics choose to visit Vietnam to comfort the ideological partner that China would be acting constructively. The Chinese foreign minister during the visit to the country clearly stated that Vietnam should stop entertaining extra regional powers in South China Sea and resist from complicating the situation while magnifying the maritime territorial disputes. This clearly shows that China was rattled by the very fact that US has been undertaking extra efforts in engaging Vietnam through vaccine and health diplomacy as well as creating favourable conditions for Vietnam to enhance trade relations with the US. As part of a reassurance strategy, China has committed to donating 3 million doses of COVID-19 vaccine and is willing to support Vietnam in their fight against COVID-19 pandemic.
In the last two years the Vietnam foreign ministry has been criticising Chinese manoeuvres in South China Sea and threatening legitimate activities of Vietnam in its Exclusive Economic Zone. The illegal activities undertaken by Chinese survey ships and fishermen militia in Vanguard bank, Reed Bank and Whitsun Reef were a manifestation of Chinese hyper activism. This has been criticised by the US state department as well as members of international community.
In the second leg of the visit, the Chinese foreign minister visited Singapore and had fruitful interactions with his counterpart Vivian Balakrishnan. Given the fact that Singapore is slowly emerging as a critical lynchpin in the larger Quad objectives in the region. Therefore, for China, engaging the city state is critical for securing its strategic periphery and engaging Singapore for its trade and economic interests. The proposal of development cooperation proposal by the Chinese foreign minister is to get assurance from the Southeast Asian neighbours regarding good neighbourliness and commitment to the Belt and Road Initiative (BRI) undertaken by the China in the maritime domain.
The Chinese foreign minister had visited almost nine countries in the last one year when Vietnam was the Chair of ASEAN. This was primarily to counter the efforts which have been made by the high-level delegations of the United States government which included the visit by the United States vice president Kamala Harris, US defence secretary, the US deputy Secretary of State and the visit of armed forces officials to the Southeast Asian countries. China’s neighbourhood diplomacy clearly shows the anxieties from the point of view of China after US has intensified surveillance and intelligence activities as the latest Malabar defence exercises(25th edition) which concluded recently near Guam. Chinese assertive activities have been operationalised by the Chinese naval ships, Chinese Coast Guard, Chinese hydrographic survey ships, and the Chinese maritime boat militia which has been threatening navies and fishermen of littoral countries in South China Sea. The military exercises undertaken by China closer to the contested waters in South China Sea, particularly in the Paracel islands, which belongs to Vietnam, and strengthening the illegal structures built on those islands is primarily aimed to counter the group sails undertaken by the US and its alliance partners as well as any concerted activity undertaken by the Quad countries.
The visit to Cambodia was expected given the fact that the politics in Cambodia is heating up because of the Hun Sen political ambitions of placing his son at the helm of power and helping Chinese to set up a full-fledged Chinese naval base at Ream naval base. The US projects in that region has been stopped and relocated to other areas which was not liked by the US agencies.
The vaccine diplomacy which has been adopted by the Chinese foreign minister to address the deficit of vaccines in countries such as Cambodia and Vietnam is symbolic.
In this context it is also important to investigate the Japanese overtures in this regard. The Japanese have signed a defence partnership agreement with the Vietnamese which assures the exports of Japanese defence equipment to the socialist country. Under the partnership it is expected that not only arms and equipment, but also technological support and training of the technicians will be undertaken by the Japanese forces. This is the first of its kind defence partnership agreement between Japan and Vietnam showcasing the growing trust between the two countries. There have been certain writings which allude to the fact that a trilateral between India, Vietnam and Japan might be in the offing. Scholars such as Gitanjali Sinha Roy feel that Japan with its technological supremacy, and India with its large armed forces along with Vietnam’s strategic location will act as a common platform to address regional security concerns in the Indo -Pacific region. India being a regional player in the Indian Ocean region and Japan being a formidable power in the Pacific would add heft to the larger maritime security objectives.
The involvement of the European powers in the security of indo Pacific region with reference to the UK, France and Germany showcases that many players would be involved in ensuring maritime security in the region for trade and commercial aspects.
This visit of Chinese foreign minister should be seen from the point of view of reassuring Chinese commitment to the regional peace while at the same time giving a veiled warning to the neighbours that China is still a very potent power in South China Sea, and it would not allow any intervention by the extra territorial powers which tries to intervene in the South China Sea dispute. This visit clearly highlights that China has been startled by the active diplomacy undertaken by countries such as Japan and US and why keeping countries such as Singapore and Vietnam in good humour is critical for Chinese interests.
Vietnam’s ingenuity in handling diplomatic relations with the US, China and Japan and maximizing national strategic interests is appreciated. Through skilful handling of relations with these three countries, Vietnam has become a partner contributing to the peace and security of the region and affirming its central role in Southeast Asia.
The new AUKUS partnership comes at the cost of sidelining France, a key Indo-Pacific player
Here is my quick take on the new AUKUS security partnership announced on Wednesday (September 15), by the leaders of three key English-speaking countries – Australia, the United Kingdom, and the United States. But, the move has invited displeasure from France, a key player and partner in the Indo-Pacific with permanent presence in the region.
US President Joe Biden, UK Prime Minister Boris Johnson and Australian Prime Minister Scott Morrison – leaders of three key English-speaking countries – have announced a new trilateral security partnership in the Indo-Pacific on Wednesday, abbreviated as AUKUS. This came a week before the in-person Quad summit, aimed at deepening cooperation in a range of defence arenas such as artificial intelligence, cyber and quantum technologies and undersea capabilities. It is the latest in a series of moves taken by the Biden administration to engage proactively in the Indo-Pacific, keeping China in mind.
A key initiative of the new AUKUS partnership is to support Australia in acquiring nuclear-powered submarines within the next 18 months. But, this comes at the cost of Canberra putting a halt on the ocean-class submarine development programme agreed with France known as the “Future Submarine Programme”. As Australia strengthens its age-old alliance with the United States and welcomes a deeper British presence in the region, the stakes are at an all-time high for Canberra.
The French Response
When China denounced the new trilateral partnership by referring to “Cold-War mentality and ideological prejudice”, it was expected. However, what stood out was the French response. A joint statement by the French Defence and Foreign Ministers following the announcement of AUKUS stated that it was ‘contrary to the letter and the spirit of the cooperation which prevailed between France and Australia’, and that the American choice reflects ‘an absence of coherence that France can only observe and regret’.
Australia is also a member of the Quad and the ‘Five Eyes’ intelligence-sharing alliance that includes Canada and Australia as well. With AUKUS, Australian military will be closely linked with that of the United States. However, the UK has not had a permanent presence in the Indo-Pacific for decades now. On the other hand, France is the only European power currently present in the region with nearly two million of its citizens and more than 7,000 military personnel, spread across a vast maritime stretch from the Réunion Island in the Western Indian Ocean to French Polynesia and New Caledonia in the South Pacific.
In a catchy tweet, the Ambassador of France to the United States, Philippe Etienne noted,“Interestingly, exactly 240 years ago the French Navy defeated the British Navy in Chesapeake Bay, paving the way for the victory at Yorktown and the independence of the United States”.He was just reminding the Americans of their historical ties with the French that goes beyond the Statue of Liberty.
‘Global Britain’ to align with the Indo-Pacific vision
The AUKUS is specifically hurting French sentiments at multiple levels. Being a reliable partner in the region that proactively engages in a broad network of trilaterals and minilaterals involving Quad partners Japan, India, Australia and other regional players, France was much better suited than the UK to form a defence partnership, in my view, when the region needs timely action. The concept of ‘global Britain’ has made its entry into public discourse only recently. The way ahead for the re-emergence of the UK from its post-war decline seems a long one, vis-à-vis dealing with a rising China.
In contrast, the French and their military installations are already in the region. It could’ve been considered better for amplifying collective defence capability and interoperability in the region and to empower the Australian military, rather than partnering with a dormant and erstwhile regional power in Asia and the Pacific like the UK, at a time when the region faces ‘unprecedented challenges’, as noted in the French statement of response.
Washington has shared the technology of nuclear submarines only once before with the UK, almost seven decades ago. Australia’s geographic advantage and deteriorating ties with China makes it a rightful next choice. It seems the new Anglophone trilateral partnership is a systematic US-led attempt to involve the UK, particularly in a post-Brexit scenario, to play a bigger role in the Indo-Pacific.
A new addition to the regional architecture
In the context of the disruptive rise of an increasingly assertive China, it is understandable to have a variety of partnerships and minilaterals among maritime democracies that could complement the Quad and the ASEAN-led regional institutions in the Indo-Pacific. Instead of inviting the UK to the Quad itself, the Biden administration chose to form a new sister grouping in the region, perhaps with the intention of being more flexible. In the present geopolitical scenario, empowering Australia’s defence capabilities is understandably a timely move, but the choice of partners is the real issue here.
It is reasonable that not every ally or partner needs to be in every alliance or coalition, however, time-tested regional players should not be ignored in a way how the US and Australia did to France with the underlying intention of bringing the UK back into the region’s newly evolving geopolitical equation.
What Australia should be careful about?
No matter how the US chooses to hedge the situation with France, Australia should deepen its bilateral partnership with France, being a key Indo-Pacific player with permanent regional presence. The ‘2+2’ ministerial consultations between the two countries, which was inaugurated last month, needs to be built upon.
Nuclear-powered submarines could definitely boost Australia’s maritime deterrence capabilities. However, handling and operating them is a highly-complex and risky manoeuvre. So, it is important that the move should not be given the impression of being escalatory. Moreover, Australia, being a non-nuclear weapon state, should reinforce its commitment to the global non-proliferation regime and the rules-based order.
Making sense of a rugged political terrain in the Land of Golden Pagodas
Eight months have passed since Myanmar’s coup d’état. What are the domestic factors that contribute to the country’s grim political scenario? What are the odds that work against Burmese democracy? Here, I look back at the chequered political past of Myanmar to find answers.
After a decade of relative calm, the Tatmadaw, as the Burmese armed forces are referred to, smuggled power from the civilian leadership by staging a repugnant coup in February this year, led by its 65-year old-leader, General Min Aung Hlaing. This was executed just a few days before the convening of Myanmar’s newly-elected Parliament and three months after the National League for Democracy’s (NLD) landslide victory in the election held in November 2020 in the country’s second freely-contested polls since 2015.
As the junta came back to haunt the newest democratic experiment in Myanmar again, history repeats itself. Even before the coup, the Tatmadaw’s dominant posture in the administration was strongly evident, as twenty-five per cent of seats in the Parliament and key portfolios in the Cabinet were reserved for the military, according to the Constitution promulgated by the military itself in 2008.
Déjà vu 1988
Apparently, the Tatmadaw and its aging leader were outraged by the continuing and overwhelming popularity that democratic icon Aung San Suu Kyi still enjoyed in the weeks following the 2020 elections, despite all the allegations of her playing second-fiddle to the Tatmadaw. The coup d’état and the subsequent crackdown on democracy set the clock back to 1988.
It was in that year, a large wave of protests erupted against the military that began as a student-led movement in the city of Rangoon (now, Yangon), which soon spread across the country. It came to be known as the ‘8-8-88 Uprising’ or the ‘People Power Movement’ because the protests peaked on 8 August 1988. Suu Kyi’s NLD party emerged from this movement.
Burma was separated from British India as a separately-administered colony eleven years before the country gained independence. The Buddhist-majority state was free of British rule in 1948 under the leadership of people like U Nu and Aung San with the hopes of ushering in a parliamentary democracy. Unfortunately, in the next fourteen years, the country would witness the very first military coup in its history since independence, in 1962, led by General U Ne Win, who would go on to rule the country with an iron fist for the next twenty-six years.
Absence of a political consensus
Right from its independence in 1948, the Land of Golden Pagodas has been a deeply divided nation along the lines of ethnicity, religion, and political loyalty, with the majority Burmans dominating the upper echelons of power. Myanmar comprises of 135 ethnic groups in total. It includes the majority Burmans, who constitute two-thirds of the population, minority groups such as the Shan, the Karen, the Rohingya, the Kachin, the Mon and other smaller groups. A grave absence of political consensus among diverse ethno-religious groups and their respective parties had always been a bane for Myanmar’s overall stability.
Myanmar’s decades-long inter-ethnic tensions and sectarian violence have been a historical factor behind the rise of popularity of the Tatmadaw among the people, who consider themselves as the only force that could bring-in stability to the country, an idea that resonates with a substantial proportion of the majority Burmans even today. But, a pro-democracy resistance movement is underway on the other side, with the military’s recent excesses leading to many of its supporters switching sides.
When the Tatmadaw was seen a beacon of stability
The Anti-Fascist People’s Freedom League (AFPFL) coalition dominated Myanmar’s political scene from 1948 to 1958. Contrary to popular beliefs today, the military was seen as a beacon of stability in the country’s immediate post-independence period as numerous sectarian groups battled each other. In the 1950s, the country had to deal with scattered left-wing insurgencies too, along with the widely prevalent ethnic conflicts.
Even as early as 1958, when the affairs of the state were slipping away, the Tatmadaw was asked by the civilian government to step in as a temporary caretaker government. The military remained loyal to the elected government for fourteen years since independence and had even facilitated the general elections of 1960.
At a moment when the military’s public support rose considerably among the people, catalysed by a corrupt civilian government led by the AFPFL, the Tatmadaw decided to take matters into their own hands by staging a coup in 1962. The junta adopted a new Constitution in 1974, suspending the one previously promulgated in 1947.
Soon, the military emerged as a repressive force and their socialist state policy known as the Burmese Way to Socialism isolated Myanmar from the rest of the world from 1962 to 1988 and devastated the economy. Around the same time, Buddhist ultra-nationalism perpetrated by fear-mongering monks also thrived under the regime at the cost of intimidation of the minority groups.
The dawn of a new epoch and the return to history
With the people realising their folly in trusting the Tatmadaw, the uprising of 1988 happened. Around the same time, young Suu Kyi returned to her home country after completing her studies abroad. Witnessing the scathing power abuse of the ruling junta hands-on, she rallied her fellow Burmese citizens for the cause of Myanmar’s democratic transition. The uprising can also be viewed as a direct consequence of the emergence of the NLD, which contested and won the elections of 1990. But, the military refused to accept the results and prevented a civilian government from exercising power.
Suu Kyi was placed under house arrest by the junta in the following year. She continued her struggle and was awarded the Nobel Peace Prize in 1991. She was detained for fifteen years in total between 1990 and 2010. Elections were held in 2010 and the junta was ‘supposedly’ dissolved the following year, only to re-emerge in 2021.
As per estimates by the United Nations, around 230,000 people were displaced as of June this year, because of the military action and retaliatory attacks either by civilian rebels or by one armed resistance group or the other. As of July this year, more than a thousand people were allegedly killed by the junta, with thousands of protesters arrested, detained, or charged, and many even just disappeared beyond trace. Recently, the shadow resistance movement that calls itself the ‘National Unity Government’ of Myanmar had gone underground since the February coup and has called for a nation-wide ‘people’s defensive war’ against the Tatmadaw.
Regional voices and the road to peace
Myanmar is a member of the ASEAN (the Association of Southeast Asian Nations) since 1997. But, the organisation, despite its diplomatic efforts, was unable to prevent the coup and the subsequent civilian unrest in the country. In fact, the ASEAN’s negotiations in its capital Jakarta, in April, and the Five-Point Consensus that emerged from it have been seemingly side-lined by the junta. ASEAN envoys met with the army leaders in June and the organisation’s latest proposal for a ceasefire until the end of 2021, put forward in August-end, has been reportedly denied by the military.
Due to geo-economic and border security considerations, neighbouring China and India happen to have good ties with the Tatmadaw. However, a broad-based civilian support is the only way to ensure the army’s sustained legitimacy. And, the best solution to bring back real stability in Myanmar is to agree on a mutually-accepted power-sharing agreement between the shadow civilian leadership and the military that would secure unequivocal internal peace within the country.
Social cohesion continues to be a distant dream for Myanmar and the Burmese people, the absence of which continues to be the root cause of all political wrongs in the country. The ongoing Covid-19 pandemic is making the crisis worse. In the end, the military cannot afford to antagonize the United Nations and the democracies of the world for long, especially of the West, with their economic sanctions in place, and the dire curbs placed on the Burmese people’s genuine democratic aspirations will go out of the reckoning again in just a matter of time.
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