Pancasila and Law Review is a journal published by Faculty of Law, Universitas Lampung, Doktoral Ilmu Hukum, Fakultas Hukum, Universitas Lampung,
Bandar Lampung, Lampung, Indonesia.
Volume3 Issue 1, January–June 2022: pp: 55-68 http://jurnal.fh.unila.ac.id/index.php/plr P-ISSN: 2723-262X E-ISSN: 2745-9306
The Countermeasures Efforts of Illegal Transshipment Impact as a Transnational Crime
Husni Mubaroq
Kejaksaan Negeri Ogan Komering Ilir, Indonesia [email protected]
Muhammad Haidir Syah Putra UIN Raden Intan Lampung, Indonesia [email protected]
Article’s Information Abstract Keywords:
Transhipment, Transnational, Crimes
DOI:
https://doi.org/10.25041/plr.v3i1.2568
Abstract
The impacts and disadvantages of transhipment which even threatens sustainable development shows that transhipment can be identified as a transnational crime. On the one side, there is a need for legal countermeasures for the transshipment crimes in Indonesia so it does not occur again. But on the other side, transshipment actually becomes a necessity because fish landing mostly take time so that the fish are not fresh. In addition, the transshipment countermeasures also has some obstacles because there is no agency or institution with a special task of supervising and taking action against waters crimes in Indonesian in full authority to tackle transhipment. The problem that will be discussed in this article is how is transhipment related to transnational crime? And what is the countermeasures framework for dealing transhipment related to transnational crime? The research results showed that transshipment has been regulated in international law and national law. However, transhipment can be classified as a transnational crime because it fulfills the elements of a transnational crime and it is related to other transnational crimes. So there is a recommendation for a countermeasures framework of transhipment
Submitted: Mar 15, 2022; Reviewed: June 22, 2022; Accepted: June 27, 2020
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crime as a transnational crime, namely by establishing cooperation between the central and regional governments in the field of marine and fisheries. Then other recommendations related to handling fisheries crime cases such as transhipment can be carried out through a restorative justice mechanism that charges criminals to compensate for losses and recover fish resources due to their crimes.
A. Introduction
Fisheries crime according to the international definition is not only illegal fishing, but also includes unreported fishing and unregulated fishing or better known as Illegal, Unreported and Unregulated Fishing (IUU). fishing).1 The act of foreign fishing vessels catching fish without a permit in the territorial waters of the Republic of Indonesia is a serious threat to Indonesia.
This is because this action is a form of law violation that violates the jurisdiction of the Indonesian Exclusive Economic Zone (ZEEI).2 The various forms of IUU fishing include transshipment, namely the sale of fish in the middle of the sea which causes the caught fish to not be landed. In other words, transshipment is a form of theft because the sale process is in the middle of the high seas from one ship to another without reporting the catch results.3
Globally, transshipment has extracted between 11 and 26 million metric tons of fish in the oceans each year. The average revenue loss in each country because the transshipment is US$10 billion to US$23.5 billion. Fishing through transshipment has undermined fisheries management and conservation efforts worldwide, and it has contributed to overfishing on a global scale. This is because 35% of all transshipments occur on the high seas, while 65% occur within the exclusive economic zone (EEZ). Meanwhile, 39% or most of the transhipment is carried out in the EEZ of Russia, and 61% is carried out in EEZ zones in 41 countries around the world.4 So it can be seen that transshipment is an epidemic that occurs throughout the world's marine areas with global scale.
Transshipment involving fishermen and foreign ships on the high seas can be interpreted as a transnational crime because the activities and networks are cross-border and the actors involved are from two different countries. This is as contained in Article 3 of the UNTOC Convention which emphasizes the elements of transnational crime.5 Thus, it can be seen that transshipment has a transnational elements so that it will be difficult to prevent and eradicate it without international cooperation between countries in the world. This is based on the fact that up to now, transhipment has not been included in one of the categories of transnational crime
1 Fernando Aprizal, Siti Muslimah, “PENEGAKAN HUKUM TERHADAP KASUS ILLEGAL, UNREPORTED, DAN UNREGULATED FISHING YANG DILAKUKAN TERHADAP KAPAL KM BD95599 TS DI LAUT NATUNA SESUAI DENGAN HUKUM INTERNASIONAL”, Belli Ac Pacis 5, no. 2 (2019): 87-92, 88.
2 Pasili, “SANKSI PIDANA PERIKANAN TERHADAP KIA YANG MELAKUKAN ILLEGAL FISHING DI ZEEI”, Jurnal Hukum Universitas Brawijaya (2015): 1-22, 5.
3 Yayan Hikmayani, Rikrik Rahadian, Nurlailii dan Rizky Muhartono, “EFEKTIVITAS PEMBERLAKUAN KEBIJAKAN MORATORIUM KAPAL EKS ASING DAN TRANSHIPMENT TERHADAP KINERJA USAHA PENANGKAPAN IKAN”, J. Kebijakan Sosek KP 5, no. 2 (2015): 101-112, 102, DOI:
http://dx.doi.org/10.15578/jksekp.v5i2.1021.
4 Kristina Boerder, Nathan A. Miller, Boris Worm, “Global Hot Spots of Transshipment of Fish Catch At Sea”, Science Advances Research Article 4, no. 7 (2018): 1-11, 2, DOI: 10.1126/sciadv.aat7159.
5 Convention Against Transnational Organized Crime atau UNTOC adalah konvensi internasional bentukan Perserikatan Bangsa-Bangsa (PBB) pada tahun 2000 di Palermo, Italia PBB melalui Resolusi Perserikatan Bangsa- Bangsa Nomor 55/25 sebagai instrumen hukum dalam menanggulangi tindak pidana transnasional yang terorganisasi.
based on UNTOC 2000. On the other hand, transhipment is the parent crime that can lead to other crimes.
Illegal transshipment activities can also be referred to as “the mother offence” because it is related to several other violations that are part of the chain such as fish dumping (high grading or the practice of fish disposing with lower market value), falsification in recording catches, embezzlement of fish, overfishing, counterfeiting of catch weights, illegal fishing, use of prohibited fishing gear, mislabeling of fish products and direct sales to avoid taxes.6 In other words, transhipment can be used as a tools to facilitate other crimes, even such as drug trafficking, human trafficking and corruption.7 So that it can be seen that transhipment is not a crime that can be underestimated because of the resulting impact that threatens sustainable development.
Transshipment has an impact in losses for current and future generations. This is because fish that should be used by the current generation, as well as generations to come, can't be enjoyed or can't be enjoyed optimally because of the transfer of cargo and the catches of fish are immediately taken abroad. In addition, the income obtained from fishery commodities will also not be maximized because with this transshipment there will be a bias in the recording of fisheries. This of course will be detrimental to the current generation that will come.8 Illegal fishing, in this case such as transshipment, has an impact on the destruction of the sustainability of fishery resources because fishing through transshipment tends to use technology that is not environmentally friendly. Even the sovereignty of the state can be violated because foreign fishermen can enter the territorial waters of a country without a permit and commit a crime of fish theft.9 So it can be seen that the impact of transshipment is not only felt by the current generation, but also by future generations. Therefore, the Indonesian government has carried out various efforts to countermeasure and prevent transhipment through the formation of legal products.
Meanwhile, there are regulations in Indonesia that prohibit the practice of transhipment or loading and unloading of goods in the middle of the sea, namely Minister of Maritime Affairs and Fisheries Regulation or Permen KP No. 57/Permen-KP/2014 revision of Number 30/Men/2012 concerning capture fisheries business in Indonesia and Permen KP No.
58/PERMEN-KP/2014 concerning Discipline of State Civil Apparatus Employees within the Ministry of Maritime Affairs and Fisheries in the implementation of the policy of temporary suspension (moratorium) on capture fisheries business licensing, transhipment at sea, and the use of captains and crew members (ABK) foreign.10 From on all of this regulations shows that Indonesia has various efforts to prevent and overcome transhipment practices, this is because transshipment is the highest contributor to state losses in the field of illegal fishing violations.
But, illegal tranship still occur in Indonesia and rises state losses each year are around Rp. 20 trillion, 75 percent of which (Rp. 15 trillion) is due to transshipment practices. This was stated by the Director General of Supervision and Control of Marine and Fisheries Resources (P2SDKP) of the Ministry of Marine Affairs and Fisheries (DKP)..11
6 Ardi Hendharto, “UNDERSTANDING IUU FISHING AS TRANSNATIONAL ORGANIZED CRIME WITH SPECIAL EXAMPLE OF BENJINA CASE”, Kajian 23, no. 2 (2018): 95-109, 103.
7 FISH-i Africa, Illegal Fishing? Evidence and Analysis (Gaborone, Botswana: Fish-I 2017), 19.
8 Savitri Nur Setyorini, “Penerapan Transhipment:Kaitannya Dengan Hak Bangsa Indonesia Atas Komoditas Perikanandan Pembangunan Berkelanjutan”, Jurnal Hukum Lingkungan 1, no. 2 (2014): 86-100, 94.
9 Muh. Risnain, “The Eradication Concept of Illegal Fishing In Keeping Security and State Sovereignty in the Fisheries; The International and National Legal Perspective of Indonesia”, Jurnal Cita Hukum. Faculty of Sharia and Law UIN Jakarta 5, no. 1 (2017): 59-74, 61, DOI: 10.15408/jch.v5i1.4120.
10 Rizky Emelya, “DAMPAK PERMEN KP NO.56/2014 DAN PERMEN KP NO. 57/2014 TERHADAP EKSPOR IKAN TUNA INDONESIA KE AMERIKA SERIKAT”, eJournal Ilmu Hubungan Internasional 6, no.
4 2018: 1565-1582, 1584.
11https://www.bpkp.go.id/berita/read/1457/11300/Rp-15-Triliun-Kerugian-Negara-Akibat-Transshipment, accessed on 21 february 2022.
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Several regions in Indonesia often experience transshipment practices, one of which is in the waters of Benoa, Bali. Transshipment in this area is carried out by transferring cargo to an aircraft carrier from Taiwan. The state losses from the transhipment case that occurred in Benoa reached billions of rupiah. Susi Pudjiastuti as Minister of Maritime Affairs and Fisheries states that if the fish caught using a longline vessel (a long fishing vessel type) once went to sea for 30 tons and 1 ton for USD 5. For 8 (eight) months, fishermen- The fisherman from Taiwan can go to sea 8 (eight) to 10 (ten) times.12 Then in other Indonesian region, namely Pulau Weh, Sabang, Aceh, transshipment practices have also occurred. At that time, the Thai-flagged Silver Sea 2 cargo ship was arrested by the Indonesian National Army because the ship did not have a Fish Transporting/Gathering Ship Permit (SIKPI).13
The novelty of this article's existence of the impacts and disadvantages of transshipment which even threatens sustainable development shows that transshipment can be identified as a transnational crime. On the one side, there is a need for legal countermeasures for transshipment in Indonesia so this practice does not occur again. But on the other side, transshipment has become a necessity because fishery products will have a high selling value if they are sold fresh while landing fish first at the fishing port will take time and the fish will not be fresh. In addition, the lack of limited cold storage that keeps fish fresh also triggers the practice of transshipment.14 In addition, the transshipment countermeasures are also experiencing obstacles because there is no agency or institution with a particular task of supervising and taking action against crimes in Indonesian waters in full authority to tackle transshipment. In terms of supervision, it tends to be only for foreign ships entering the territorial sea of Indonesia.
In fact, many new modes have been used to carry out illegal fishing by utilizing local fishermen who are funded.15
The research method used in this study is a normative legal research method, with an approach to conventions and laws. It is because in this article the author try to analyze transhipment as transnational crime based on Indonesia regulation dan international regulation.
The data will be analyzed qualitatively with descriptive and prescriptive, namely providing an overview and providing arguments for the research results. This study uses primary legal data, namely laws relating to the problem, namely the United Nations Convention on the Law of the Sea (UNCLOS 1982), Convention Against Transnational Organized Crime 2000, Regulation of the Minister of Maritime Affairs and Fisheries or PERMEN KP and legal scientific articles.
Secondary data in this article is from journal, news, book and others relevant sources to this research. In addition, the analytical method in this study uses descriptive analysis methods.
Thus, it is necessary to have an analysis related to " The Countermeasures Efforts of Transshipment as a Transnational Crime". The problem that will be discussed in this article is how is the impact of illegal transhipment related to transnational crime? And what is the countermeasures framework for dealing transhipment related to transnational crime?
B. Discussion
1. Transhipment Based on International Law and Indoneasian Law
Transshipment is defined by the Food and Agriculture Organization (FAO) as the act of transferring catch from one fishing vessel to another or to a vessel used solely for the cargo
12https://news.detik.com/berita/d-3286337/menteri-susi-selidiki-transhipment-illegal-fishing-di-wilayah-ini, accessed on 21 february 2022.
13 https://www.mongabay.co.id/2015/10/07/lakukan-illegal-transhipment-kapal-asal-thailand-yang-ditangkap-di- sabang-ini-malah-melawan/, accessed on 21 february 2022.
14 Savitri Nur Setyorini, Op.Cit., hlm. 97.
15 Aldhanalia Pramesti Salsabila, “Pengoptimalan Satgas 115 dengan ModelKoordinasi Satgas Pusat dan Daerah SebagaiBentuk Pencegahan Illegal Transhipment diIndonesia”, Lex Scientia Law Review 2, no. 1 (2018): 5-20, 8.
transport.16 Basically international law has regulated transhipment in the United Nations Convention on the Law of the Sea (UNCLOS 1982) or the convention governing international law of the sea. UNCLOS 1982 states that every country by taking into account the rights of other countries in carrying out all activities and freedoms in the international sea based on the conditions determined by conventions and other provisions of international law. Based on article 87 of UNCLOS 1982, one of the 6 principles of UNCLOS is the freedom to fish.
Freedom does not mean giving power to any country, but this freedom is carried out for the concept of protection and does not constitute waters and living natural resources. Furthermore, in Article 21 UNCLOS 1982 and Article 19 Paragraph 2 UNCLOS 1982 which underlies that every foreign-flagged ship must be considered to have harmed and endangered the peace and order of the coastal state if in the territorial sea there are several or one type of violation such as transhipment. This convention emphasizes that ships in conducting any transaction that violates the provisions of international law or relating to illegal transshipment in the sea territory of a country must comply with all applicable provisions in the territory of that country.17
There are regulations in Indonesia that prohibit the practice of transshipment or loading and unloading of goods in the middle of the sea, namely the Minister of Maritime Affairs and Fisheries Regulation or PERMEN KP 56/PERMEN-KP/2014 concerning the Temporary Suspension (Moratorium) of Capture Fisheries Business Licensing in the Fisheries Management Area of the Republic of Indonesia, PERMEN KP No. 57/Permen-KP/2014 revision of Number 30/Men/2012 concerning capture fisheries business in Indonesia and PERMEN KP No. 58/PERMEN-KP/2014 concerning Discipline of State Civil Apparatus Employees within the Ministry of Maritime Affairs and Fisheries in the implementation of the policy of temporary suspension (moratorium) on capture fisheries business licensing, transhipment at sea, and the use of captains and crew members (ABK) foreign.18 The establishment of transhipment law is to improve the management of the fisheries sector, especially in re-registering the status of ships, stopping the transfer of cargo at sea. The presence of this policy is also one way to overcome exploitation of the Indonesian sea (overfishing) and as a tools to improve marine ecosystems and reformulate industrial governance which is downstream of the Indonesian fisheries sector management ecosystem. The goals is can be a momentum to build and take advantage of the Indonesian fishery sector to create a more prosperous fishing community.19 The existance of international law and Indonesian law regulate transshipment, it can be said that this crime is an unusual crime. Even transshipment crimes are often related to transnational crimes that are borderless.
2. Transshipment as Transnational Crimes
The use of the term transnational is specifically used to indicate crimes committed by individuals, which for the crime itself, the individual can be held responsible under national and international law. Perpetrators of international crimes must be distinguished from
16 Fayakun Satria, Lilis Sadiyah, Agustinus Anung Widodo, Chris Wilcox, Jessica H. Ford, Britta Denise Hardesty,
“Characterizing Transhipment At-Sea Activities by Longline and Purse Seine Fisheries in Response to Recent Policy Changes In Indonesia”, Marine Policy 95 (2018): 8–139, 8–13, DOI: 10.1016/j.marpol.2018.06.010.
17 Zainal Abdul Aziz Hadju, “Analisis UNCLOS 1982 Terkait Permasalahan Yurisdiksi Negara dan Penegakan Hukum Atas Kapal Berbendera Negara Asing”, SASI 27, no. 1 (2021): 12 – 23, p. 13, DOI:
10.47268/sasi.v27i1.254.
18 Rizky Emelya, “DAMPAK PERMEN KP NO.56/2014 DAN PERMEN KP NO. 57/2014 TERHADAP EKSPOR IKAN TUNA INDONESIA KE AMERIKA SERIKAT”, eJournal Ilmu Hubungan Internasional 6, no.
4 2018: 1565-1582, 1584.
19 Atika Zahra Rahmayanti, Bintang Dwitya Cahyono, dan Mochammad Nadjib, “IMPLIKASI KEBIJAKAN MORATORIUM PERIZINAN USAHA PERIKANAN TANGKAP TERHADAP SEKTOR PERIKANAN DI BITUNG”, Jurnal Ekonomi dan Pembangunan 25, no. 1 (2017): 1-14, 3.
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international crimes whose perpetrators are States. This is because States can only be held accountable for international crimes (international criminal responsibility of states).20 Transnational crimes are crimes committed by organized groups that operate on an international scale by seeking the most profitable crime opportunities and seeking safe havens to avoid prosecution.21 The characteristics of "transnational crimes" are regulated in the Convention Against Transnational Organized Crimes or known as the Palermo Convention (2000).22 In Article 3 of the UNTOC Convention stated that the elements of transnational crime are as follows:
a. More than one territory of the country;
b. In one country, but the preparation, planning, direction or control of the crime is carried out in the territory of another country;
c. In one territory of the country, but involves an organized group of criminals who commit crimes in more than one territory of the country; or
d. In one territory of the country, but the consequences of the crime are felt in other countries.
Meanwhile, I Wayan Parthiana also stated about the elements of transnational crimes that do not recognize the boundaries of a country's territory. Some aspects of transnational crime that are not limited to a certain area such as the place where it occurs, the consequences it causes, as well as the purpose of the crime itself.23 In addition, Bassiouni also revealed that the elements of transnational crime are an international crime that contains three elements, namely international elements, transnational elements, and elements of necessity. Meanwhile, other transnational elements include elements or actions that have an impact on more than one country, actions that involve or have an impact on citizens of more than one country, and infrastructure and methods that are used beyond the territorial boundaries of a country. The element of necessity is included in the element of the need for cooperation between countries to take countermeasures.24 Meanwhile, transhipment can be classified as a transnational crime because it fulfills the elements of the transnational crime itself.
As in the case of transshipment that has occurred in Indonesian waters, such as in the Bali Benoa Sea and the Sabang Sea in Aceh, the flags of ships carrying out transshipment are ships Taiwan and Thailand flags. Likewise, the crew or transshipment actors are also citizens of Taiwan and Thailand, or in other words, foreign nationals who are not Indonesian citizens. So that it can be said that the transshipment case has fulfilled the elements of transnational crime, namely actions that have an impact on more than one country, the impact on the territory of Taiwan, Thailand and Indonesia. Then the element of action that involves or has an impact on citizens of more than one country, and the infrastructure and methods used exceed the territorial boundaries of a country.
Transnational crimes as identified by the UN in UNTOC consist of 18 types of transnational crimes, namely money laundering, terrorism, theft of art and cultural objects, theft of intellectual works, illicit trade in soldiers and weapons, aircraft hijacking, pirates, insurance fraud, computer crime, environmental crime, trafficking in persons, human trafficking, illicit
20 Noer Indriati, “Mutual Legal Assistance Treaties (Mlats) Sebagai Instrumen Pemberantasan Kejahatan Internasional”, Jurnal Dinamika Hukum 9, no. 2 (2009): 104-110, 105, DOI:
http://dx.doi.org/10.20884/1.jdh.2009.9.2.218.
21 Klaus von Lampe, “Transnational Organized Crime: Challenges for future research”, Crime, Law and Social Change 58, no. 2 (2012): 179-194, 182, DOI:10.1007/s10611-012-9377-y.
22 Romli Atmasasmita, “Ekstradisi dalam Meningkatkan Kerjasama Penegakan Hukum”, Jurnal Hukum Internasional, Lembaga Kajian Hukum Internasional Fakultas Hukum Universitas Indonesia 5, no. 1 (2007): 1- 15, 3, doi:10.17304/ijil.vol5.1.145.
23 Shinta Agustina, “Perdagangan Perempuan dan Anak sebagai Kejahatan Transnasional: Permasalahan dan Penanggulangannya di Indonesia”, Jurnal Hukum Projustitia 24, no.1 (2006): 47-62, 50.
24 Maharani Siti Shopia, Transnational Organized Crime, Buletin Kesaksian Lembaga Perlindungan Saksi dan Korban, no. 3 (2012): 1-38, 4.
drug trafficking, fraudulent bankruptcy, infiltration of legal business, corruption, bribery of public, and bribery of party officials.25 Based on the types of transnational crimes mentioned in UNTOC 2000, it can be seen that transhipment is not classified as a transnational crime.
However, based on several criteria in transnational crimes, transhipment can be classified as a transnational crime.
Basically IUU is often linked to other transnational crimes including illegal fishing, human trafficking, migrant smuggling, forced labor and drug trafficking.26 Meanwhile, transshipment allows fishers to take advantage of legal loopholes to reduce fish shipping costs. Therefore, fishing through transshipment is often linked to other crimes, such as corruption, international fraud, drug trafficking and human trafficking. In other words, transhipment facilitates other crimes to be difficult to detect because they mix crime with legal trading activities.27 So it can be said that transhipment has links with few of other transnational crimes, as explained in the following table:
No. Types of Transnational Crime
Links to the Transhipment
1. Corruption Corruption through transshipment in Indonesia has lossed the state finances as much as Rp. 100 T.28 There are several forms of corruption through transhipment, namely:
- There are bribes to law enforcement officers in the field. It is often happens when there is a violation on ship board or at a port facility, or an officer asks directly to avoid inspection.
- Misuse of permission, and lack of transparency regarding company, individual, and ship permits issued by state officials. This abuse causes limitations on public accountability for fisheries resource management. It is because an allegation of the permits issuance through bribes to the officials who release the permission. Thus, this bribery diverts money that should go into the state but it into the hands of individual government officials.
- Investigation and fines on illegal activities within the scope of fisheries administration. When an operator or owner vessel is accused of violating fisheries regulations, so there can be hope that the facts of the legal process in the case are reviewed by an independent party with appropriate penalties. However, there have been allegations that the operator paid the fines set by the fisheries authority without independent review, and the funds from these fines were not properly accounted for by the competent authorities. So that it can be classified as a bribe to an official for a reduced sentence.
25 Convention Against Transnational Organized Crime 2000
26 Lacey Malarky and Beth Lowell, “No More Hiding at Sea: Transshipping Exposed”, Oceana (2017): 1-14, 3.
27 Fayakun Satria, Lilis Sadiyah, Agustinus Anung Widodo, Chris Wilcox, Jessica H. Ford, Britta Denise Hardesty, Op.Cit., 10.
28 https://kumparan.com/kumparanbisnis/mantan-pimpinan-kpk-ungkap-praktik-transhipment-rugikan-negara-rp- 100-t-1sst6QqZeaj/2, accessed on 1 March 2022.
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2. Fraud Customs fraud is a common component of transhipment fisheries crime in West Africa. These crimes has an impact on revenue in the tax sector which lead to illegal fishing, and threaten public health. This customs fraud can pose a threat to human health, because the fish delivery process is not properly inspected or reviewed by the authorized health inspector. This fraud uses fake health documents to disguise the country of origin, real identity and flags of fishing vessels. It is often accompanied by false labeling on imported packaging, or false outer packaging that shows the fish species statement.
3. Human Trafficking There is a strong relationship between vessels engaging in illegal fishing such as transhipments and vessels exploiting their crews for forced labour. Things like this can be classified as human trafficking in the fisheries sector. This phenomenon is a serious global problem because it is the same as modern slavery. Victims of human trafficking in the fisheries sector are fishermen and migrant workers.
They often experience human rights violations such as because they are often beaten, left to starve, forced to work without sleep, and even killed.
4. Drug Trafficking Drug trafficking occurs because fishermen face rising gas prices and reduced fish stocks, so some fishermen use their boats to engage in drug and human trafficking as a means to increase their income. According to a 2007 United Nations Office on Drugs and Crime (UNODC) report, since the early 2000s, Guinea Bissau has been a transit hub for organized criminal networks that trafficked drugs from Colombia, Venezuela and Brazil through West Africa to Europe. This crime was committed by shipping large quantities of cocaine via ships which were then redistributed to smaller fishing vessels.29
Sources: Processe/analyzed by the author
Transshipment is also synonymous with various human rights violations that befell the crew. Crews on transshipment ships often come from poor countries who are recruited illegally and tend to experience slavery. Workers are often promised false compensation, then they are asked to pay agents as justification for forced labour, and then forced into slavery. Usually, they are underpaid or even unpaid and are held at sea for years during which human rights violations continue. In addition, workers are often forced to work in dire conditions, such as malnutrition and lack of sleep, and they are often beaten, tortured, and murdered. The crew of the ship also often experience sexual violence, attacks on mental health and not given food and water that
29 INTERPOL, Study On Fisheries Crime In The West African Coastal Region, France: General Secretariat Environmental Crimmes Programme, 2014, pp. 25-26.
are suitable for consumption.30 There are several challenges in transshipment countermeasures problems involving transnational crimes, namely:31
a. Methodology of collecting global transshipment data;
b. Study of link between transshipment and IUU;
c. The pattern of transshipment in strategic locations along the EEZ;
d. Identification of ports visited by transshipment vessels after possible encounters;
e. Identification flag countries involved as transshipment actors;
f. Find case studies of transshipment ship actors.
Thus, it is hoped that the Indonesian government can establish various legal policies as a form of transshipment prevention efforts and as a framework for transshipment countermeasures crimes that occur in Indonesian territory. This is because after all, Indonesia is an archipelagic country that has a wealth of fish, it will be a pity if the wealth is actually enjoyed by other parties, not Indonesian citizens themselves.
3. The Framework for Transhipment Countermeasures as a Transnational Crime in Indonesia
From the previous explanation, it can be said that transhipment as transnational crime that is dangerous and threatens human rights. This is the background for the international community to tackle transhipment crimes in various parts of the world. Basically, transshipment countermeasures have been regulated in UNCLOS 198232 and The Treaty of Amity and Cooperation in Southeast Asia (TAC 1976).33 However, for transshipment on the high seas itself, it cannot be directly justified. It can be resolved regarding various forms of the exist dispute resolution. First, considering that illegal transhipment is not included in the dispute, but as a violation of fishing practices. Second, the flag state has jurisdiction over ships on the high seas, including investigating possible illegal transhipment practices. Therefore, transhipment can only be enforced through the Flag State on the basis of UNCLOS 1982 and RFMOs.34 UN and ASEAN Regional Resolutions cannot be a forum for law enforcement on transshipment on the high seas.35 Therefore, it is necessary to have a special transipment response framework in each country, including Indonesia.
Indonesia as an archipelagic country,36 it should be to tackle this crime through various legal policies. Policies to protect fishery resources must be implemented due to the growing population of Indonesia. From a global perspective, fisheries policy needs to take into account the geographical conditions of Indonesia, which most of its national territory consists of oceans.
So in the context of the use of the sea and the implementation of other vital marine functions,
30 Chelsey F. Marto, “Human Rights Violations Consequent to Transshipment Practices in Fisheries”, Ocean And Coastal Law Journal 24, no. 1 (2019): 32-58, p. 37-38.
31 D.A. Kroodsma, N.A. Miller, and A. Roan, “The Global View of Transshipment: Revised Preliminary Findings.” Global Fishing Watch and Sky Truth, (2017), hlm. 3.
32 Chapter XV in particular Article 287 of UNCLOS 1982 regulates alternative dispute settlement procedures for countries that are related or have conflicts in the sea area, providing 4 (four) forums to choose from, namely:
International Tribunal for the Law of the Sea (ITLOS); International Court of Justice (ICJ); Arbitral Tribunal; and the Special Arbitral Tribunal.
33 TAC 1976 is one of the legal instruments related to efforts to realize and create political stability and security in the Southeast Asian region. The TAC regulates the resolution of disputes between countries in the maritime sector using several mechanisms such as negotiation, conciliation, mediation, good service.
34 Regional Fisheries Management Organizations (RFMOs) are a type of international organization dedicated to the sustainable management of fisheries resources in certain international water areas, or highly migratory species.
35 Elisabeth Septin Puspoayu, Cindy Yunita Sari, dan Virania Cahya Ramadhani, “Praktik Illegal Transhipment Di Laut Lepas Berdasarkan Hukum Laut Internasional”, Mimbar Hukum 31, no. 1 (2019): 75-94, 90.
36 As stated in Article 25A of the 1945 Constitution of the Unitary State of the Republic of Indonesia (UUD NKRI 1945) that Indonesia is an archipelagic State, this provision confirms that Indonesia has a wide sea area and is divided into islands. Mexsasai Indra, “Urgensi Pengelolaan Wilayah Perbatasan Dalam Kaitannya dengan Kedaulatan Negara Kesatuan Republik Indonesia”, Jurnal Selat 1, no. 1 (2013): 13-18, p. 13.
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effective and anticipatory forms of regulation are needed as an effort to strengthen juridical fencing to protect various national interests that exist in the sea. To guarantee the national interest in the sea and at the same time ensure the preservation of vital functions at sea, concrete steps are needed including the preparation of software and hardware, both in the form of statutory regulations, as well as law enforcement. In addition, law enforcement at sea not only requires a strong naval fleet, not only for military purposes, but also needs to be directed at efforts to create national resilience in the economic dimension..37
During 2014-2018, the Indonesian Ministry of Maritime Affairs and Fisheries or KKP established three pillars of marine and fisheries development, namely sovereignty, prosperity and sustainability. The KKP policy implemented during 2014-2018 applies a hierarchical governance model that is very state-centred. In other words, fisheries resource management is a directive that puts forward the rules of the game made by the state. This kind of fisheries governance model is top-down which emphasizes legality, political legitimacy, is centralized, bureaucratic, interventionist, command and control, and is scientifically elitist and exclusively sensitive to public accountability. This model is built with an ideology “administrative rationalism”, namely that the policy for preparing fisheries management is entrusted to fishery experts (leave it to the expert). During the implementation of the fisheries crime eradication policy in the 2014-2018 period, conflicts in the management and utilization of fishery resources have not been fully resolved, but the escalation is decreasing and the reason are various.
Therefore, the next policy is actually not only improving the sustainability of fish resource stocks, increasing their economic benefits, but also being able to resolve conflicts that occur with the right resolution so that the management and utilization of fishery resources can prosper all the people.38
National policies in the engagement sector must be studied from a multi-aspect perspective related to their implications both in the national, regional, and global scope and need to be continuously monitored with an open attitude. So that we find a way how we can adapt to these changes, without harming the national interest. Policies must anticipate future developments in economic and trade relations, in particular to support the national economy. The required national law can be in the form of statutory regulations, jurisprudence, arbitration decisions, customary law of trade, including institutions, institutional mechanisms and legal means, physical and non-physical.39 Meanwhile, there are recommendations for a framework for dealing with transshipment in Indonesia, namely through the cooperation of the Central and Regional Governments.
In dealing with transshipment crimes committed by foreign ships and assisted by local fishermen, cooperation between the central and regional task forces is needed because all data from licensing to report is held by the regions. Fishermen who carry out illegal fishing are also carried out in waters controlled by the region. This model has been implemented by the Department of Fisheries and Marine Affairs of West Nusa Tenggara Province with the first step of making an MoU (Memorandum of Understanding) between law enforcement and local governments. In this case, law enforcement is Task Force 115 which consists of the Indonesian Navy, Police, Attorney General's Office, Ministry of Maritime Affairs and Fisheries of the Republic of Indonesia, Maritime Security Agency, Security Maintenance Agency, and other related agencies that are incorporated. The functions of the task force are related to the coordination of investigations, identification of types, and the modus operandi of illegal transhipments. Counseling and guidance to the public not to carry out illegal transhipment,
37 Kodrat Twin Riskiyanti, “Kebijakan Peraturan Menteri Kelautan Dan Perikanan Republik Indonesia Nomor 58/Per-Men/2014 Terhadap Pelabuhan Perikanan Samudera Bitung”, Lex et Societatis 3, no. 5 (2015):80-87, 84.
38 Muhamad Karim, “EVALUASI DAN IMPLIKASI KEBIJAKAN PEMBERANTASAN KEJAHATAN PERIKANAN DI INDONESIA 2014-2018”, Jurnal Akuatika Indonesia 5, no. 1 (2020): 40-54, 50.
39 Ibid., 85.
designing forms of coordination, formulation, and updating of strategies, monitoring and presenting reports, as well as reviewing and evaluating the effectiveness of the illegal transshipment strategy. A model like ths by the NTB Province can be applied in all provinces in Indonesia as a form of preventing illegal transhipment by local fishermen to assist foreign vessels in catching fish in Indonesian marine waters, of course in an illegal way.40
In addition, cooperation between the central and local governments can be carried out through the reform of Fishery Management Governance which needs to be strengthened by governance at the regional level, namely the State Fisheries Management Area of the Republic of Indonesia (WPPNRI). For this reason, the WPPNRI Institutional Manager will be tasked with coordinating the fisheries management authority at the provincial level within WPPNRI with the Ministry of Maritime Affairs and Fisheries in the context of controlling fisheries permits and the suitability of the number of permits according to the sustainability of fishery resources. Fisheries management reform needs to be done by developing a partnership framework in fisheries management (collaborative management). Taking into account the characteristics of fish resources, fisheries management partnerships involve government agencies at the central as well as regional levels, capture fisheries business actors, NGOs and other relevant stakeholders. With this partnership, it is hoped that the active role and interests of fish resource users and other stakeholders can be accommodated in fisheries management, which is aimed at conserving fish resources and improving the welfare of the people at large.
Fishery management institutions based on WPPNRI are aimed at increasing efficiency, optimizing and coordinating the implementation of fisheries management in WPPNRI.41
There are recommendations for handling fisheries crime cases, such as transhipment which is carried out through a restorative justice mechanism which imposes the burden on criminals to compensate for losses and recover fish resources due to their crimes. This has been successfully practiced in China in the case of environmental and fisheries management in Canada. The implementation of this policy will be more effective if Indonesia builds regional and global cooperation to implement a model of restorative justice because entrepreneurs who own vessels commit fishing crimes are regional and global.42
D. Conclusion
Basically transshipment has been regulated in international law and national law, namely the United Nations Convention on the Law of the Sea (UNCLOS 1982) and in national regulations it is regulated in the Minister of Marine Affairs and Fisheries Regulation or PERMEN KP 56/PERMEN-KP/2014, PERMEN KP No. 57/Permen-KP/2014 revision of Number 30/Men/2012 and PERMEN KP No. 58/PERMEN-KP/2014. The existence of international law and national law that regulates transhipment, it can be said that this crime is an unusual crime. Even transshipment crimes are often related to transnational crimes which borderless. Meanwhile, transhipment can be classified as a transnational crime because it fulfills the elements of a transnational crime such as having an impact on more than one country, involving or having an impact on citizens of more than one country, and the infrastructure and methods used exceed the territorial boundaries of a country. In addition, transhipment can also be classified as a transnational crime because it is often related with other crimes, such as corruption, international fraud, drug trafficking and human trafficking.
40 Aldhanalia, Op.Cit., 16-17.
41 Hanuring Ayu, “ARAH KEBIJAKAN PEMERINTAH MENGENAI ILLEGAL UNREPORTED UNREGULATED FISHING (IUUF) DI INDONESIA”, Humani (Hukum dan Masyarakat Madani) 9, no. 2 (2019): 181-192, 190.
42 Muhamad Karim, Op.Cit., 52.
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So that Indonesia as an archipelagic country is supposed to tackle transshipment crimes through various legal policies. The recommendation for the framework for transshipment countermeasures as a transnational crime is the establishment of cooperation between the central and regional governments in the field of marine and fisheries. This collaboration can be carried out with an MOU between law enforcement and local governments, as well as through reforms in Fishery Management Governance that needs to be strengthened with governance at the regional level, namely the State Fisheries Management Area of the Republic of Indonesia (WPPNRI). Then other recommendations related to handling fisheries crime cases, such as transhipment, can be carried out through a restorative justice mechanism that charges criminals to compensate for losses and recover fish resources due to their crimes.
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