Analysis – Boat sinking policy in international perspective, by Siswanto Rusdi

Jakarta (ANTARA News) - The issue of fishing boat sinking is in again. It was triggered by the Coordinating Minister for Maritime Affairs Luhut Binsar Pandjaitan and Vice President Jusuf Kalla who demanded Minister of Maritime Affairs and Fisheries Susi Pudjiastuti to stop the policy.

Instead, she was instructed focusing on the improvement of fish production to boost the national export. She responded rhetorically that the boat sinking is not her policy. It was the fishing court verdict and she just faithfully carried it out.

The fishing boat sinking is something of controversial since it was implemented by Madam Susi soon she was in command of the ministry in 2014.

One reason is that it involves foreign flagged vessels whose flag states keep complaining the measure from the beginning up to now. Vice President Jusuf Kalla mentioned that he received many objections from the flag states regarding the problem . That is another consideration why he asked the lady minister to stop the sinking.

The fact that the flag states continuously protest the government of Indonesia over the severe treatment -bombed or set ablaze - received by their fishing vessels indicates there are loopholes in our judicial system especially those relating to the ship or shipping business.

Of course, we are ultimately free in regulating the sector and no country can dictate their interest to us on that matter.

Since shipping is a transboundary business in nature where a massive labyrinth of international regulations and best practices are in place to manage it and its players, however, we cannot regulate our national judicial system pertaining the cases which entail ship(s) in total absent of the international shipping perspective.

So, what are the loopholes in the fishing boat sinking policy portrait from the international shipping point of view?

According to the international practice, a ship - fishing boat, freighter, tanker or others - can be detained only by the court verdict and the request for the detention should be filed by the eligible parties for the ship in question such as creditor, vendor, suppliers, etc.

Upon receiving the request, the court or judge will grant an arrest/detention warrant within a day and it is only valid for seven days.

During the period the court probes the ship?s status: on charter, leasing or other forms of business agreement. If the status can be established, the charterer or leasor is summoned and informed that his/her ship is in a case.

The court can continue the next phase of legal process and at this point the ship can be released on bail. The aim of the procedures is to give legal certainty to the relevant entities because the detained ship might be engaged in a shipment contract and therefore must accomplish it.

In Indonesia violations conducted by fishing boat will be fronted by Law No. 45/2009 on Fisheries. Furthermore, Article 69 Point 4 stipulates that the boat could be sunked or destroyed by the government?s patrol vessels on the spot without due process of court. Vessels which are not downed dragged from the crime scene and will be in the custody of the state waiting for the court verdict for unlimited time.

There is no way the above mentioned international practice - enshrined in Arrest of Ships Convention 1999 - could be carried out on fishing boat.

It is also impracticable on other types of vessel (these vessels fall within the remit of Law No. 17/2008 on Shipping). The cause is that Indonesia still does not ratify the convention yet.

But, the problem will not be automatically solved if the country adopts it in the near future. The norms of national legal system are totally just not supportive for that.

One simple example, the National Police is the sole agency in investigating all crimes or legal cases happened in all sectors including shipping business.

This will make any dispute arising from business ties among the players as criminal charge if reported to the police. On the other side, shipping business is heavily constructed on the customary law where the settlement of a business wrangle is through the admiralty court. Unfortunately, the latter is not existent here in Indonesia.

Fishing boat sinking policy also discloses a fact that there is no fishing vessel register in place in Indonesia as required by Torremolinos Convention on the Safety of Fishing Vessels 1993.

Again and again, this country is not a party to the convention. The register lists all crew and vessels used in the fisheries industry, making their entire operations in the country of registry fully legal.

In the illegal, unreported, unregulated (IUU) fishing management, the role of the registered ships is very important. It is completely unimaginable to launch - fight against illegal fishing - a country may be engaging with without having the stuff in its disposal.

As the center of gravity of the regime it is the ships actually doing the report to the fisheries authority, not those small and ill-equipped traditional fishing boats.

It is also the registered fishing vessels that are regulated, not the traditional ones, into the allotted fishing grounds prepared by a coastal state.

Last but not least, the term of illegal simply means that ships deployed to catch the fish are not in a register. Soon they are registered by their owner/operator they will be definitely legal under the legal system of the country of registry.

The IUU is not of something scary and consumes much energy and emotion.

Siswanto Rusdi is Director, The National Maritime Institute (NAMARIN)

Source: ANTARA News

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