From: A.M Oktarina Counsellors at Law
Contributors: Ricki Rahmad Aulia Nasution, S.H., Pramudya Yudhatama, S.H., Raysha Alfira, S.H., Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H.
Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).
Illegal Fishing is one of the problems that often occurs in Indonesia. This is because Indonesia has abundant natural resources, thus inviting local and foreign “rogue” fishermen who always want to find loopholes to violate regulations in Indonesia for personal gain, which sometimes also causes damage to the ecosystem. This is certainly a concern for the Indonesian government. The government itself has carried out supervision, with several actions, one example is, the results of the operation of marine and fisheries resources surveillance vessels that succeeded in arresting and prosecuting 558 perpetrators of Illegal Fishing during the period 2019 to August 2023, as well as fishing vessels perpetrating Illegal Fishing arrested by Indonesian Navy, National Police, and Indonesian Maritime Security Agency officials, and with the seizure of 4,748 tons of illegally imported fish from China and Malaysia in Batam, Riau Islands in May 2022, 11.3 tons of illegally imported fish in South Sumatra in May, and 20 tons of illegally imported fish in Batam City in June 2023 (as link attached).
Until now, the Indonesian government is struggling in eradicating the problem of Illegal Fishing that occurs in Indonesian marine waters. So, how should the government’s actions be taken as well as the threat of sanctions to the perpetrators? Let’s look at the following explanation.
⦁ Legal Basis
⦁ Law Number 45 of 2009 concerning Amendments to Law Number 31 of 2004 concerning Fisheries (“Law No.45/2009”)
⦁ Article 27 Paragraph 2 of Marine and Fisheries Law Number 06 of 2023 concerning the Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law (“Law No.6/2023”)
⦁ Presidential Regulation No. 115 of 2015 concerning the Task Force for the Eradication of Illegal Fishing (“Presidential Regulation No.115/2015”)
⦁ Regulation of the Minister of Marine Affairs and Fisheries Number 37/Permen-KP/2017 concerning Standard Operating Procedures for Law Enforcement of the Task Force for the Eradication of Illegal Fishing (“Minister Regulation No.37/KP/2017”)
Illegal fishing has been explained in the definition in Article 1 number 3 of Minister Regulation No.37/KP/2017 which reads as follows that:
“Illegal Fishing is an illegal fishing activity or fishery activity carried out contrary to the provisions of laws and regulations in the field of fisheries.”
In general, fishing itself has been defined in Indonesia’s positive law, as well as the use of vessels specifically for fisheries, we can see in the provisions of Article 1 number 5 and number 9 of Law No. 6/2023 which reads:
Article 1 point 5 of Law No.6/2023:
“Fishing is an activity to obtain fish in waters that are not in a state of cultivation by any means or means, including activities that use ships to load, transport, store, cool, handle, process and/or preserve them”.
Article 1 number 9 of Law No.6/2023:
“Fishing Vessel means a vessel, boat, or other buoyancy used to conduct Fishing, support Fishing operations, Fish Farming, Fish transportation, Fish processing, Fisheries training, and Fisheries research/exploration.”
Basically, Illegal Fishing can be divided into two, namely in terms of who the perpetrators are. Perpetrators of Illegal Fishing, can be carried out by foreign nationals, or Indonesian citizens.
So, where is the violation of Indonesian citizens to catch fish? In general, this is not a problem, as long as it does not damage the ecosystem, marine life, and captures flora and fauna protected by the state.
Basically, every person who owns and or operates an Indonesian-flagged fishing vessel used to fish in Indonesian territory must have a permit as explained in Article 27 paragraph (1) of Law No. 6/2023 which reads:
“Every person who owns and/or operates an Indonesian-flagged fishing vessel used to conduct fishing in the State Fisheries Management area of the Republic of Indonesia and/or the high seas must fulfill a Business Permit from the Central Government or Regional Government in accordance with his authority based on the norms, standards, procedures, and criteria set by the Central Government.”
This is also certainly a problem when there are foreign nationals without permission who take our marine resources, let alone damage the ecosystem and capture flora and fauna protected by the state. In line with the spirit of licensing, Law No. 6/2023, namely Article 27 paragraph (2), has regulated the general requirements for foreign-flagged ships, which reads:
“Any person who owns and/or operates a foreign-flagged fishing vessel used to conduct fishing in the Exclusive Economic Zone must fulfill the Business License from the Central Government.”
Furthermore, it is also in line with Indonesian ships, which has been explained in Article 27 paragraph (3) of Law No. 6/2023 which reads:
“Every person who operates an Indonesian-flagged fishing vessel in the State Fisheries Management area of the Republic of Indonesia or operates a foreign-flagged fishing vessel in the Exclusive Economic Zone must carry a Business Permit document.”
Thus this provision is very clear, and implies that foreign-flagged fishing vessels are illegal acts that violate the provisions of Indonesian law.
With the existence of Illegal Fishing actions that often occur in a continuous period of time and increase every year, the Indonesian government formed a Task Force (“Satgas”) to eradicate Illegal Fishing as explained in Article 1 paragraph (1) of Presidential Regulation No.115/2015 which reads:
“To support efforts to increase law enforcement against violations and crimes in the field of fisheries, especially Illegal Fishing in an integrated manner, an Illegal Fishing Eradication Task Force was formed, hereinafter referred to in this Presidential Regulation as the Task Force”.
It is necessary to know that Illegal Fishing activities currently circulating in Indonesia in practice have several kinds of classifications, for example fishing without a permit, fishing using false permits, fishing using prohibited fishing gear, fishing types or species that are not in accordance with permits.
In terms of Illegal Fishing itself, it can be carried out by Indonesian fishermen with fishing activities using fishing gear / fishing aids that damage marine and fishery resources. Examples are by using explosives, and the use of toxic materials to catch fish as explained in Article 9 paragraph (1) of Law No.45/2009 which reads:
“Everyone is prohibited from owning, possessing, carrying, and/or using fishing gear and/or fishing aids that interfere with and damage the sustainability of fish resources on fishing vessels in fisheries management areas of the Republic of Indonesia.
Where there are sanctions for the perpetrators of Illegal Fishing itself, which do it, as explained for example in Article 94 of Law No. 6/2023 which reads:
“Any person who owns and/or operates an Indonesian-flagged or foreign-flagged fish transport vessel in the State Fisheries Management area of the Republic of Indonesia that carries out fish transportation or related activities that do not meet the Business License as referred to in Article 28 paragraph (1) and paragraph (2) shall be punished with a maximum imprisonment of 5 (five) years and a maximum fine of Rp1,500,000,000, 00 (one billion five hundred million rupiah).”
Lately also related to the act of Illegal Fishing, there is a practice in the form of sinking foreign ships carried out by the government, if it carries out Illegal Fishing. So is it permissible based on Indonesian regulations? We can find the answer in Article 69 paragraph (4) of Law No.45/2009 which reads as follows:
“In carrying out the functions referred to in paragraph (1), fisheries investigators and/or supervisors may take special action in the form of burning and/or sinking foreign-flagged fishing vessels based on sufficient preliminary evidence.”
Therefore, the act of sinking foreign ships carried out is a permissible action, where the purpose is to deter foreign ships that carry out Illegal Fishing actions in Indonesian waters. But it needs to be noted, which must be with sufficient evidence.
The practice of Illegal Fishing in Indonesia is certainly not new, and therefore requires strict regulation and optimal supervision from the state. Basically, Indonesia’s marine natural wealth is very abundant, and this certainly must get more attention in the practice of supervision in the marine sector.
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