by
Hasjim Djalal
Director of Legal and Treaty Affairs
Indonesian Department of Foreign Affairs
(Indonesian Representative to the Second Committee
of the Third UN Conference on the Law of the Sea)
Extract from LAW OF THE SEA
Problems of Conflict and Management of Fisheries in Southeast Asia
ICLARM Conference Proceedings, No. 2
F.T. Christy, Jr., Editor
Introduction
The topic assigned to me is "The Implementation of Agreements with Foreigners". I cannot discuss the implementation of various agreements concluded among other Southeast Asian countries as I am ill-equipped for the subject. I will instead confine my observations to the implementation of fisheries agreements entered into by Indonesia with other countries in waters within its national jurisdiction. The opinions expressed in this paper, however, are totally personal, and do not necessarily reflect the opinions of the Indonesian Government.
Before one can discuss the various agreements concluded between Indonesia and other countries, one first has to understand Indonesia's varied national positions on the matter, as they will determine or affect the agreement itself. Secondly, for the purposes of the present discussion, the term "agreement" shall include not only agreements officially concluded, but also other arrangements that have existed for some time between Indonesia and other countries.
Indonesian Positions
From the point of view of Indonesia, all fisheries resources within Indonesian archipelagic waters and territorial seas fall within its national jurisdiction. These resources include those of sedentary species found in the Indonesian continental shelf or those of pelagic or demersal species found in the area which would become Indonesia's exclusive economic zone. This position is well known to everyone. Therefore, I merely have to refer to the Indonesian Declaration of 13 December 1957, announcing the Indonesian archipelagic state concept and the 12-mile territorial sea, both later enacted into Law No. 4/1960. In 1961 Indonesia also ratified the Geneva Continental Shelf Convention of 1958, thus acquiring sovereign rights over the sedentary species of all living resources within its continental shelf.
The essence of the archipelagic state concept is the recognition of the right of an archipelagic State like Indonesia to draw straight archipelagic baselines connecting the outermost points of the outermost islands of the archipelago, thus enclosing the whole archipelago into a single entity. The territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of the archipelagic State shall be measured outward from these baselines. The waters within these baselines are archipelagic waters, over which the archipelagic State exercises territorial sovereignty. This sovereignty covers the waters, the airspace above the waters, the seabed and subsoil, and all other resources contained therein. 1/ Derived from this basic concept, especially from the concept of sovereignty over all the natural resources contained in the archipelagic waters, the archipelagic State exercises sovereignty over all the fisheries resources within its archipelagic waters. Thus, any exploration or exploitation of these resources, in accordance with Article 33 of Indonesia's 1945 Constitution, can only be undertaken fur the benefit of the Indonesian people, either by their own organizations or through some kind of arrangements with foreign organizations. Any agreement concluded with foreign countries on this matter will have to take into account this basic position.
1
/ Through the years the Indonesian archipelagic State concept has found its way into the ICNT. For detailed regime of the archipelagic State concept which I hope will be incorporated in the next LOS Convention, see Articles 46-54 of the ICNT
Since the whole archipelagic waters now belong to the archipelagic State of Indonesia, all national legislation with respect to fisheries in its waters can now be applicable to the Indonesian archipelagic waters and territorial seas. This legislation is either of recent origin or dates back to the colonial era. Some of the old legislation now applicable to the archipelagic waters of Indonesia is worth mentioning.
First, there is the Pearl and Coral Collecting Act of 1916 2/ which regulates pearl, anemone, and coral collecting within 3 miles from the coasts. Exclusive and traditional rights for such activities are guaranteed local fishermen anywhere in the sea where depth is less than 9 m at low tide. Such rights cannot be transferred to others except as provided for in the Act.
2
/ State Gazette 1916, No. 157, dated 29 January 1976
Second, there is the Fisheries Act of 1920 3/ which prohibits the use of poison, toxins, and explosives in fishing, except for authorized scientific purposes.
3
/ State Gazette 1920, No. 396, dated 26 May 1920
Third, there is the Coastal Fisheries Act of 1927 4/. The rules enunciated in this Act relate to fishing in the Indonesian territorial seas, then fixed at 3 miles from low tide along the coasts. The Act stipulates that only vessels flying the Indonesian flag and manned by a crew of Indonesian nationals (unless granted special permission by the Minister of Agriculture) shall be allowed to fish in the Indonesian waters. All fishing activities in the Indonesian waters shall respect and take into account the traditional fishing rights of the indigenous coastal population as well as the specific rights of local governments to regulate fishing along the coastlines under their respective jurisdiction. This Act has been amended several times, the latest having been in I960 when both the Indonesian archipelagic State principles and the 12-mile territorial sea were enacted into Law No. 4.
4
/ State Gazette 1927, No. 144
Fourth, the Whaling Act of 1927 5/ regulates whaling within 3 miles of Indonesian coasts. The Act states that whaling within 3 miles of the coasts (now within Indonesian archipelagic waters and the 12-mile territorial sea) is allowed only under special permission from the President of the Republic, except whaling activities traditionally conducted by the indigenous coastal population. The Act-further regulates all other details related to whaling.
5
/ State Gazette 1927, No. 145, dated 29 April 1927
Fifth, the Territorial Sea and Maritime Circle Act of 1939 6/ regulates Indonesian territorial sea (3 miles from the coasts at low tide or from straight baselines where there are bays, river mouths or estuaries less than 6 miles wide; or where there are island fringes along the coasts, or where there is a strait less than 6 miles wide and both of its coasts belong to Indonesia). The Act also establishes Indonesian maritime circles along specific areas within Indonesian coastlines. Fishing activities are prohibited within the maritime circles, except by the Indonesian indigenous population or by those with special permission from the Naval Chief of Staff. The Act also establishes strict guidance for the Naval Chief of Staff in granting the permission to fish within the maritime circles. Presidential Decree No. 103, issued 27 May 1963, provides for the conversion of all Indonesian waters into a single maritime circle. This Decree strengthens the power of the Naval Chief of Staff to enforce all fisheries legislation in all Indonesian waters.
6
/ State Gazette 1939, No. 442
Violators of all or any of the Acts cited above are either fined or jailed.
Some of the recent regulations on fishing in the Indonesian archipelagic waters and territorial seas contain provisions on the use of equipment and the use of trawlers in specified areas as well as provisions on the maximum use of fishery resources.
Decision Nos. 561/1973 and 40/1974, both by the Minister of Agriculture 7/ also obligate all enterprises engaged in shrimp fishing to make use of all the by-catch. In 1975 the same Minister issued a decision 8/ setting up guidelines on the proper conservation and management of the fishery resources. This decision regulates seasonal or areal closure of certain fishing grounds to one, some, or all fish species, as well as the kind, size, and number of vessels; the size of nets and all other fishing equipment; and the quota for each catch. Decision No. 02/1975 9/ prohibits trawling in waters less than ID m deep around the coasts of Irian Jaya (see Chart in the Annex). Shrimp catching through the use of pair trawl, as well as cod ends having a mesh size of less than 3.0 cm (stretched mesh) is also prohibited, The Director General of Fisheries is authorized to determine every year beginning 1 April the number of vessels allowed to operate after the stock of fish or shrimp in the area has been assessed. Decision No. 123/.1975 10/ prohibits the fishing of Rastrelliger, Decapterus, Caranx, Sardinella, and other similar pelagic species by purse seines less than 2 in on the wing side and less than 1 in the bag. Violation of this rule can mean a revocation of the fishing permit.
7
/ See Decision Nos. 56J/KPTS/UM/11/1973, dated 7 November 1973 and 40/KPTS/UM/2/1974, dated 1 February 1974
8/ See Decision No. 01/KPTS/UM/1/1975, dated 2 January 1975
9/ See Decision No. 02/KPTS/UM/1/1975, dated 2 January 1975
10/ See Decision No. 123/KPTS/UM/3/1975, dated 31 March 1975
One of the more important decisions made by the Minister of Agriculture is Decision No. 607/1976 11/. It provides for the division of parts of Indonesian coastlines into four belts (Fig. 1) namely:
1. First Fishing Belt, namely, coastal waters up to 3 miles from the low-water mark along the coasts. Here, inboard motorized fishing vessels above 5 gt or above 10 HP, all kinds of trawls (beam trawl, otter trawl, and pair (bull) trawl), purse seines and the like, encircling gill nets and drift gill nets, or nets more than 120 m long are prohibited.2. Second Fishing Belt, namely, waters 4 miles wide measured from the First Fishing Belt. In this belt, inboard motorized fishing vessels above 25 gt or above 50 HP, bottom trawls (with otterboard) with head rope length over 12 m, mid-water trawls or pelagic trawls as well as pair (bull) trawls, or nets over 300 m long are prohibited. Fishing vessels owned by State Fishing Enterprise are exempted from the prohibitions stipulated for the Second Fishing Belt. 12/
3. Third Fishing Belt, namely, waters 5 miles wide measured from the Second Fishing Belt. Inboard motorized fishing vessels above 100 gt or above 200 HP, mid-water trawls (otterboard) more than 20 m head rope. length, pair (bull) trawls as well as nets over 600 m long are prohibited in this belt.
4. Fourth Fishing Belt, namely, waters outside the Third Fishing Belt. Here, all vessels and legitimate equipment may be used except pair (bull) trawls which may only be used in the Indian Ocean.
11/ See Decision No. 607/KPTS/UM/9/1976, dated 30 September 1976
12/ See Decision No. 608/KPTS/UM/9/1976, dated 30 September 1976
The regulation also stipulates that, except for some specified exceptions, all nets having mesh size of less than 25 mm and purse seines fur tuna having mesh sizes of less than 60 mm are prohibited in all the four belts. In addition, the use of beam trawls, otter trawls, and pair (bull) trawls for pelagic and demersal fishing is prohibited in both the Strait of Madura and the Strait of Bali.
Fig. 1. The four fishing belts of the Indonesian coastlines.
All fishing permits must specify the belt where the vessel is allowed to fish. Violations of this regulation may result in the revocation of the fishing permit. The Director General of Fisheries is authorized to strictly enforce this decision.
To further regulate the use of trawls, the Minister of Agriculture issued Decision No. 609/1976 13/. This divides demersal fishing within Indonesian waters into four zones (see Chart in the Annex). Each trawler can operate only in the zone assigned to it and it must bear a sign with a colour indicating its zone of operation. The four zones are: Zone A in the Indian Ocean; Zone B in the Strait of Malacca and South China Sea; Zone C in the Strait of Karimata, Java Sea, and the Strait of Makassar; and Zone D in the Eastern Part of Indonesia.
13
/ See Decision No. 609/KPTS/UM/9/1976, dated 30 September 1976
The Director General of Fisheries 14/ announced that the decisions of the Minister of Agriculture (Decision Nos. 607, 608 and 609 1976) entered into force on 1 July 1978. Since then, 634 trawlers have been arrested in all parts of Indonesia for violating the rules. This represents about 5% of all fishing vessels (about 21,000 vessels) operating in Indonesian waters.
14
/ See Decision No. H.11/1/4/4/78, dated 15 May 1978
All of the above-mentioned rules and regulations are necessary to conserve all living resources and to protect them from being depleted especially those that are important for the consumption and the economy of small local fishermen as well as other resources that are important primarily for the world market. Fisheries along the Strait of Malacca, the Java Sea, the Strait of Bali, and the Strait of Makassar can be classified as within the meaning of the first category, while tuna fishing in the Banda Sea and shrimp exploitation in the Arafura Sea can be classified as within the second category. This fact is particularly important since the livelihood of an important sector of the Indonesian coastal population, numbering over one million fishermen, largely depends on fisheries of the first category. The second category is equally important because of its potential to provide sources for foreign exchange which can be beneficial to the economic development of the country.
It is then clear that all foreign vessels operating under whatever arrangements in Indonesian waters must strictly observe the above-mentioned rules and regulations.
Agreements with Foreign Countries
When one discusses agreements concluded by Indonesia with other foreign countries, various situations arise:
1. Arrangement concluded with Japan for the exploitation of tunas in the Banda Sea.2. Agreement, in principle, with South Korea toward cooperative efforts in matters concerning fisheries.
3. Arrangement negotiated between Indonesia and its neighbours, specifically Singapore and Thailand, allowing adjacent neighbouring States of Indonesia to continue their traditional fishing rights within specified areas of the Indonesian archipelagic waters.
4. Agreement to be made with regard to the right of access by the landlocked and geographically disadvantaged States to the surplus living resources in areas that are to become part of Indonesia's exclusive economic zone.
5. Arrangement made with other neighbouring States, particularly Australia, allowing Indonesian traditional fishermen to continue fishing in areas within the Australian exclusive fishing zone, namely within 12 miles from the Australian baselines.
Arrangement with Japan
The Japanese Government claimed that their fishermen had traditionally fished in far-distant waters of Indonesia, including the Banda Sea area. This claim certainly ran counter to the Indonesian assertion of archipelagic principles since 1957. The determination of Indonesia to enforce its archipelagic principles has brought about problems affecting its relations with Japanese fishing interests, especially in the Banda Sea area.
Protests made by Japan in .1957 and in I960 failed to placate Indonesia to relinquish its archipelagic principles. Indonesia continued to enforce these principles vis-a-vis the Japanese boats fishing illegally in the area. Various fishing vessels were either arrested, brought to court, or fined or sentenced for violating Indonesian laws.
Various efforts by the two countries to resolve the matter finally succeeded when both parties signed the "Interim Arrangement" in July 27, 1968. This interim arrangement, concluded between the Government of the Republic of Indonesia and the Representatives of the National Federation of Fisheries Cooperatives of Japan and the Federation of Japanese Tuna Fishermen Cooperative Associations, regulated tuna fishing by Japanese fishermen who are members of the two associations "in the waters between the Indonesian islands". The area covered by the arrangement was the Banda Sea which is within the archipelagic waters of Indonesia, with coordinates 124°E 2°S, 129°E 2°S, 132°E 3°S, 132°E 8°S, 124°E 8°S, and 124°E 2°S, all specified in the Interim Agreement. The Japanese undertook not to operate in areas other than that specified in the Arrangement.
Article 1 of the Arrangement granted certain Japanese vessels permission to call at the port of Ambon where they would be provided facilities for tuna fishing in the area. Before being able to fish in the Banda Sea area, however, the fishing vessels were to be issued certificates from the Indonesia Embassy in Tokyo. The call at the Indonesian port was to be made at the end of each fishing activity for purposes of verification by the local naval authority. Applications for permission and facilities had to be secured by the Associations on behalf of their members, specifying therein the names of the vessels, the names of the owners, and the vessel's registration number as well as its tonnage. Additional requirements such as a crew list and a photograph of the vessel were also imposed.
Japanese fishing vessels granted permission and certificate were also required to bear specific markings on both sides of the vessel's bridge, the details of which were specified in the Arrangement.
To be able to fish in the specific area, fishing vessels had to pay a certain fee, depending on the class of the vessel used. For a class A vessel, namely, a vessel of 40-t class of less than 70 gt, the fee was fixed at US$ 300 per vessel per year, while for a class B vessel, namely, a vessel of 100-t class of not less than 70 gt, but not larger than 500 gt, the fee was fixed at US$ 390 per vessel per year, payable in yen through the Indonesian Embassy in Tokyo.
To protect local Indonesian fishermen, Japanese fishing vessels were not allowed to operate within the limit of 30 miles from the island of Ambon, and from other areas to be mutually agreed upon. Likewise, Japanese fishing vessels were not allowed the use of mother ships or transporting vessels. Each vessel was to be on its own, and fishing was limited to the longline method.
The number of vessels allowed to operate under this Arrangement was limited to a maximum of 250, not more than one-third of which should consist of 100-t class vessels of not less than 70 gt but not larger than 300 t. Within this category, however, 13 vessels of approximately 200 gt but not exceeding 300 t were allowed. The rest would be vessels of 40-t class not larger than 70 gt. The maximum catch of the whole Japanese operation under this Arrangement was limited to not more than 15,000 t/yr. The arrangement took effect on its signing on 6 July 1968 and was to be in force for only 1 year.
The form and the contents of this Arrangement were peculiar. First, it was negotiated between the representatives of the Indonesian and the Japanese Governments but it was signed between the Government of Indonesia and the National Federation of Fisheries Cooperatives of Japan and the Federation of Japanese Tuna Fishermen Cooperative Association, both private organizations. It seemed that, while the Japanese Government was eager to protect the interests of its fishermen, it was nevertheless reluctant to conclude an official agreement with the Government of Indonesia. Perhaps Japan feared that such a bilateral agreement might be interpreted from the legal point of view as its indirect but de facto or de jure recognition of the Indonesian archipelagic concept.
Secondly, the arrangement regulated Japanese fishing activities "in the waters between Indonesian islands". From the very start, the Indonesian Government disagreed on this formulation and preferred the phrase to simply read "in the Indonesian waters". The implication was clear: the Indonesian Government wanted clear, legal Japanese recognition of its archipelagic concept, while the Japanese side insisted on maintaining some semblance of legal non-recognition through the formulation.
Thirdly, the Japanese side was willing to pay for access to the tuna fisheries in the Banda Sea. Although Indonesia considered the amount paid as very little or meaningless, it nevertheless viewed the payment as an act which constituted Japan's recognition of its archipelagic concept. The Japanese side, of course, simply viewed the payment as a fee to enter an Indonesian port since the Japanese fishing vessels operating in the Indonesian archipelagic waters had to report the results of their operations to the predetermined Indonesian port.
Fourthly, the arrangement was valid only for a limited time - 1 year. Thus, it had to be renewed every time; and each time, the discussions would centre on the need for such an arrangement and on the points previously mentioned. Basically, Indonesia did not consider the arrangement beneficial to her and therefore wanted to modify the terms to better suit her needs. Yet, the Japanese side considered the arrangement extremely important primarily because it involved activities and the economic life of a certain sector of Japanese electorates; thus, it was politically significant for any Japanese Government in power. Each time the negotiation bogged down, political pressure would be applied on Indonesia. As a result the arrangement was renewed five times and replaced by a new arrangement in 1975. Between 1968 and 1975 the arrangement generated less than US$ 10 million for the Indonesian Government, namely, US$ 147,640 in licence fees, US$ 1,929,186 in the form of aids (grant), and US$ 7,856,285 in the form of credit for project aids.
By 1975 the Indonesian Government had become very reluctant to continue with the arrangement. However, it had to continue giving special considerations to this peculiar Japanese interest because the Japanese Government considered the solution of the issue essential for their position on the matter of archipelagic States in the Law of the Sea Conference. Before Prime Minister Tanaka could agree to express sympathetic views vis-a-vis the archipelagic principles when he visited Indonesia in 1974, the Indonesian approval to continue the arrangement in the archipelagic waters had to be secured first.
By 26 September 1975 the validity of the Interim Arrangement had expired. Again, new negotiations were made. Both sides decided against a sixth renewal of the Interim Arrangement. Instead, a new arrangement was made, this time between an Indonesian State Fishing Enterprise, the Perikanan Samodra Besar (PSB) 15/ and the same Japanese Fishing Associations mentioned earlier. The new arrangement embodied provisions for tuna fishing cooperation on the basis of a profit sharing arrangement. The new arrangement also required the Associations to prepare and transmit to the PSB a sailing plan for tuna fishing for each contract year. The plan is to be carried out after due acknowledgement from the PSB "which will be given expeditiously" (Article II of the Contract). The area of operations under the new arrangement remained the same, e.g., "the waters between the Indonesian archipelagic islands", as provided for in the Interim Arrangement. In the Interim Arrangement, Japanese fishing vessels were not allowed to operate within the limits of 30 miles from the island of Ambon, but unlike the Interim Arrangement, the Japanese vessels were not allowed to operate within 15 miles from other specified groups of islands, such as the Geser, Gorong, and Banda Neira groups. The restriction that Japanese vessels should engage mainly in tuna fishing and only by longline method remained. The maximum catch was now reduced to 8,000 t/yr and the number of longline vessels to be used was fixed at a maximum of 100, consisting of vessels less than 80-gt class (class A) and 80 gt or more but less than 300-gt class (class B) vessels. The maximum number of class B vessels was limited to 35. Likewise, Japanese vessels operating under the Contract were required to bear markings, the details of which were indicated in the Contract. The vessels were not also allowed the use of mother ships or transporting vessels.
15
/ The PSB was established under the Government Regulation No. 12, 1969, Government Regulation No. 16, 1972, and the Articles of Association No. 37 of 12 May 1972, and domiciled in Jakarta on the basis of the Minister of Agriculture's Decision No. 350/KPTS/UM/8/1975 of 20 August 1975
One new provision in the Contract was the profit sharing arrangement. Under the Contract the Associations were to relinquish to the PSB 40% of the profit accrued from their operations. The detailed formula for the calculation of the profit was to be decided by both the Associations and the PSB. The Associations were to bear all operating expenses incurred in the operations of the vessels as well as transmit to the PSB reports on the operations and their results, including a profit and loss statement. On the other hand, the PSB was to take administrative steps to obtain necessary documents to facilitate operations and assist the Associations in obtaining the necessary port entry permit. The Japanese vessels operating under the Contract were. also required to carry certificates issued by the Indonesian Embassy in Tokyo.
The Contract was to take effect on 17 October 1975 and was to be valid for 3 years beginning from the date the Interim Arrangement expired.
Again, the implementation of the Contract during the last 3 years was not encouraging to Indonesia. The profit from the operations was calculated only at 2.5%. Since PSB's share of the profit was calculated at 40%, the PSB gained only 40% out of the 2.5%, namely, about 1% of the total gross proceeds. The amount received by the PSB was not even enough to cover administrative costs, such as telegrams, verifications, etc. Furthermore, the number of Japanese vessels reporting under the Contract was less than the maximum allowable number. While 100 vessels per year were allowed to operate under the Contract, only 23 reported for verification in 1975-1976, 35 in 1976-1977, while 77 applied between September 1977 and June 1978. Between September 1977 and April 1978, only 35 vessels reported for verification and checking at Ambon.
Various problems also arose under the Contract arrangement. The Indonesian Department of Finance claimed that, since the Japanese Fisheries Association and the Japanese crews operating under the Contract gained their incomes in Indonesia, they should be levied taxes under Indonesian Law. Naturally, the Associations and the crews refused to pay tax on the ground that they have already been taxed in Japan. The problem was solved only through a "dispensation" granted by the Indonesian Department of Finance, a situation which was hardly agreeable. Secondly, Japanese vessels were granted bunkering facilities upon entry at Ambon for verification. The irregular entry of these vessels created problems for the Pertamina State Oil and Gas Company, which had to make arrangements for the purpose from Jakarta.
During the 3-year period of the Contract, aside from the negligible 1% profit sharing, the Indonesian side also obtained one training vessel along with equipment valued at US$ 1.8 million as grants and another repair shop for the PSB valued at US$ 200,000.
Since the Contract is valid only for 3 years, ending 27 September 1978, both sides are once again faced with the ever-perplexing problem of renewing the Contract. It is not yet clear how the arrangement will be made, if at all, in the coming years.
Strict enforcement of the arrangement with Japan presented many problems. Firstly, the area covered by the arrangement was relatively large making it difficult for Indonesia's law enforcement agencies to supervise. Secondly, other vessels, including fishing vessels also used the area as a transit route between the Indian and the Pacific Oceans, thus making it difficult for law enforcement agencies to distinguish vessels covered by the arrangement from those that were merely passing through. Thirdly, the enforcement of the arrangement required an improvement in the efficiency of various enforcement agencies in terms of personnel, equipment, methods, as well as coordination. Fourthly, even if the enforcement activities at sea worked smoothly, the process of judicial solution through courts would still be monumental. A vessel apprehended at sea for violating the arrangement of Indonesian rules and regulations on fishing had to be brought to the court which could be 100 miles away from the site of apprehension. A few weeks or even months could pass before the case was finally settled. Financial damage to both the vessel and the Indonesian Government (which had to feed the crew during the waiting period) could be enormous.
To avoid this situation, since the early 1970s, the Indonesian Government issued the "peaceful fine system" under which a vessel alleged to have violated Indonesian fishing laws and regulations may be allowed to leave Indonesian waters immediately upon paying specified amounts as fines to the Indonesian Government through the law enforcement authority that apprehended it at sea. The idea was to avoid lengthy and costly judicial procedures for the benefit of both the vessel and the Indonesian Government. Unfortunately, this attempt also met with many difficulties, and abuse of enforcement powers was discovered later on. As a result the system was abrogated.
On the other hand, vessels which fished illegally in Indonesian waters were also much to blame for the difficulties encountered in enforcing the arrangement. Some of these vessels would rather bribe the corrupt government officials rather than stand trial, which in any case would surely cost them more time and money.
Various licences have also been given by the Indonesian Government to various Japanese companies to fish through joint venture agreements with Indonesian private fishing companies. Dating back to earlier years, such licences were used in Arafura Sea for shrimp and others. This type of operation was a simple joint venture agreement within the context of Indonesian Foreign Investment Law. Like all joint venture investment agreements, they were all under Indonesian laws and therefore did not create the same problems.
Fisheries Arrangement with the Republic of Korea
South Korea is one of the countries in Asia which has been developing far-distant fishing capabilities. It is therefore logical for the Government of South Korea to consider possible fisheries cooperation with Indonesia, and vice versa. Officials of both countries first met in Seoul, in July 1972, to discuss the possibilities of establishing fisheries joint ventures in Indonesia. South Korea agreed to encourage participation of Korean companies in such joint ventures while Indonesia expressed its readiness to support such activities, including trial fishing. Both parties also agreed to promote fisheries technical cooperation through exchange of scientists and technical and scientific data, and in the field of education. South Korea further expressed its willingness to export fishing vessels on a credit basis, while Indonesia agreed to explore the possibility of importing fishing vessels from the Republic of South Korea.
A second meeting was held in Jakarta in September 1972. The Korean fishing company agreed that, as a first step toward the establishment of fisheries joint ventures in Indonesia under Indonesian law, it would "in the very near future" send three tuna vessels and two stern trawlers to "Indonesian waters" to perform trial operations in cooperation with Indonesian private companies for a period of 6 months. Both sides agreed on the immediate implementation of the trial operation. Also discussed in the meeting were the realization of technical cooperation arrangement between the two countries, the possibility of conducting a joint survey in Indonesia and its adjacent waters, and the possibility of importing fishing vessels from the Republic of Korea.
A third meeting took place in Seoul in May 1974. In this meeting it was agreed that the Republic of Korea would share its fishing experiences and techniques with Indonesia to develop the latter's coastal and distant water fisheries. Both countries also agreed to further strengthen existing technical cooperation; to cooperate in research and survey of marine resources in the waters in Indonesia; to encourage joint ventures between private enterprises of each country in the field of tuna longline, skipjack pole-and-line, and shrimp trawling; and to arrange through private sectors the exportation of fishing vessels from the Republic of Korea to Indonesia.
In practice, there has not been extensive fisheries cooperation between Indonesia and South Korea and there has not been any joint venture agreement concluded between private enterprises of each country. The question of enforcement of the Indonesian-South Korean cooperation was therefore not very prominent. The issues of South Korean vessels were primarily those of transiting Indonesian archipelagic waters and how to prevent them from fishing while in transit. The issue was not so much that of enforcing agreements with other countries but of implementing Indonesian laws and regulations vis-a-vis the transiting fishing vessels.
Arrangements with Neighbouring Countries
In 1969, possibly taking the hint from the Interim Arrangement between Indonesia and Japan, Malaysia took the initiative in concluding an agreement on fishing activities by Malaysian nationals in Indonesian waters in the Strait of Malacca. After some lengthy negotiations, however, the attempt failed to have concrete results because Indonesia was reluctant to apply the interim arrangement system with regard to fishing activities in the Strait of Malacca. Indonesia was, however, prepared to cooperate with Malaysia on the basis of the Indonesian Foreign Investment Law of 1967 (Indonesian Law No. l, 1967) to the effect that Malaysian private companies would be encouraged to invest through joint ventures with Indonesian fisheries cooperatives or companies. This idea was not so attractive to Malaysia and therefore no agreement on fisheries has been concluded between the two countries.
Singapore was also an issue. Singapore claimed that for years its fishermen had traditionally fished in certain parts of Indonesian archipelagic waters. Moreover, for years, Singaporean vessels had been visiting and plying the waters between Indonesian islands to buy fish from Indonesian fishermen. The latter activities were more of commercial and trading activities rather than fishing activities.
At the same time, Indonesia was concentrating its efforts on maintaining, implementing, and gaining international recognition for its archipelagic state concept. These efforts created problems with Singapore fishing activities in Indonesian archipelagic waters. To gain Singapore's recognition of its archipelagic state concept, Indonesia undertook several consultations with the former and it seemed essential that Indonesia give some concessions to Singapore. One of the concessions given was the recognition of Singaporean traditional fishing rights in certain areas of the Indonesian archipelagic waters. As later incorporated in Article 51 of the ICNT, an archipelagic State must recognize traditional fishing rights of neighbouring States immediately adjacent to it in certain areas fishing within its archipelagic waters.
The recognition of traditional fishing rights, however, should be a qualified one. Firstly, the concept of traditional fishing rights should be clearly distinguished from the concept of traditional right to fish. While some may argue that under customary international law, all States may have traditional rights to fish in the high seas or in the waters which once were high seas, the concept of traditional fishing rights should be based on real and existing practices. So, the existence of sufficiently long practices of fishing in certain areas of the Indonesian archipelagic waters must first be established before traditional fishing rights can be recognized. Secondly, the concept of traditional fishing rights does not relieve foreign fishermen of the obligation to observe Indonesian laws and regulations and shall not detract the Indonesian Government from protecting its fisheries resources as well as the well-being of its indigenous coastal fishermen; in short, the concept of traditional fishing rights should not be in conflict with the efforts exerted by the Indonesian Government to develop its fishing industries for the well-being of its own fishermen.
The concept of traditional fishing rights, based on actual fishing, must therefore be clearly defined. As far as Indonesia is concerned, the word "traditional" should refer and respond to several criteria. Firstly, "traditional" should be judged in terms of time-frame, that is, the actual existence of sufficiently long fishing activities must be established. Secondly, "traditional" should also indicate the area frequently visited by the fishermen, that is, the fishing ground visited should be relatively constant. Thirdly, "traditional" should also refer to the fishermen themselves, in the sense that the right shall be granted only to the same fishermen who have visited the area traditionally. Fourthly, ''traditional" should also refer to equipment and vessels used as well as the amount of catch, in the sense that to qualify under the meaning of "traditional fishing right", the vessels used should be relatively traditional ones. It therefore excludes the possibility of granting traditional fishing rights to modern vessels with modern equipment, primarily because such modern vessels and equipment would put Indonesian local fishermen in an extremely disadvantaged position.
The concept of traditional fishing rights is thus a complex one. Therefore, Article 51(1) of the ICNT stipulates that "the terms and conditions of the exercise of such rights and activities, including the nature, the extent and the areas to which they apply", shall have to be determined by bilateral agreement between the States concerned. The text also stipulates that the right conferred on the basis of traditional fishing rights shall not be transferred to or shared with third parties, either through joint ventures with other countries or through any other arrangements. It is therefore clear that, in the future, the enjoyment of traditional fishing rights by adjacent neighbouring States in Indonesian archipelagic waters is recognized although its implementation and modalities would depend on the bilateral agreement to be concluded between the countries concerned. Up to now, no such agreement has been concluded.
Needless to say, the recognition of traditional fishing rights of neighbouring States immediately adjacent to the Indonesian archipelagic waters equally applies to Malaysian fishermen. It definitely excludes fishermen from Japan, Korea, and other far-distant fishing nations.
Arrangement with Thailand
Thailand is one of the fast-growing countries, fast becoming a far-distant fishing nation. It also has one of the most developed fishing industries in Southeast Asia. Although Thai fishermen still fish largely within the Gulf of Siam and in the Andaman Sea, many Thai fishermen have traditionally visited Indonesian archipelagic waters within the last several years.
Due to its fast growing fishing industry, Thailand has also put up some conditions to support Indonesian archipelagic State principles. Fully aware that Thai fishing activities within Indonesian archipelagic waters may or may not be included within the concept of traditional fishing rights, Thailand, in supporting the Indonesian archipelagic State concept, is also asking for concessions in the form of special arrangements and cooperation on fishing in the Indonesian archipelagic waters. As in other cases, Indonesia is always prepared to enter into some kind of arrangement with Thailand on the basis of its Foreign Investment Law of 1967. The officials of the two countries have met twice to discuss the matter and they have agreed to conduct a joint survey to look for appropriate species that are economically and commercially exploitable. They survey was conducted in 1977. Both countries are now studying and analysing the result of the survey before attempting to conclude the necessary and appropriate fishing arrangement.
The Right of Landlocked and Geographically Disadvantaged States
Aside from Singapore and Laos, it would be difficult to name other Southeast Asian States that fall within the meaning of landlocked and "geographically disadvantaged States". At any rate, aside from Singapore, no other landlocked and geographically disadvantaged State has exercised fishing activities in the Indonesian archipelagic waters or territorial seas. Therefore, there is no need to discuss arrangements for this group.
The question may, however, arise should Indonesia proclaim its own exclusive economic zone, as many of its neighbours have. By then, in accordance with Articles 69 and 70 of the ICNT, some kind of arrangements will have to be made between Indonesia and the landlocked and geographically disadvantaged States adjacent to it to allow the latter to use the surplus fishing resources in the area falling within the former's exclusive economic zone. Since Indonesia has not yet declared its exclusive economic zone, the question is more hypothetical than real.
Indonesian Traditional Fishing Rights in Waters off Australia
For centuries, Indonesian fishermen from eastern and southern Indonesia have traditionally visited the waters off the coast of Australia for various kinds of traditional fisheries. Fishermen from Ambon and the South Molucas, for instance, have traditionally visited the Gulf of Carpentaria for pearl fisheries. The Australian Government has recognized these traditional fishing activities which have continued up to the present without much difficulty.
On the other northern coasts of Australia, Indonesian fishermen, primarily from the Lesser Sunda Islands, have also regularly visited the area around the Ashmore and Cartier Island groups for various kinds of fishing. Many of these island groups now part of Australia were once regarded as belonging to the ancient kingdom of Roti, an island chain in the Lesser Sunda Islands group. The fishing activities themselves were not much of a problem since the Government of Australia has always recognized the traditional fishing rights of Indonesian fishermen. The problem was more of an environment nature than of fisheries. The Indonesian fishermen, being traditional, used traditional vessels, equipment, and methods of fishing. They were generally unaware of modern environmental problems. They therefore had the habit of going ashore to look for fresh water and firewood. Sometimes they hunted birds which, in Australia, were sometimes seasonally protected. After various discussions between the Government of Australia and the Government of Indonesia, a Memorandum of Understanding was signed on 7 November 1974. The Memorandum granted Indonesian traditional fishermen permission to operate in the exclusive fishing zone and on the continental shelf adjacent to the Australian mainland and offshore islands until 28 February 1975. As of March 1975, Australian laws and regulations would apply within its 12-mile exclusive fishing zone. "Traditional fishermen" means the fishermen who have traditionally taken fish and sedentary organisms in Australian waters by methods which have been traditionally used over decades of time. "Exclusive fishing zone" means the zone of waters extending 12 miles seaward from the baselines from which the Australian territorial sea is measured. The memorandum further stated that after 28 February 1975, Australia would continue to respect and allow operations by Indonesian nationals around Ashmore Reef, Cartier Islet, Scott Reef, Seringapatam Reef, and Browse Islet subject to the following conditions:
1. The operations shall be limited to traditional fishermen.2. Landings by Indonesian traditional fishermen for the purpose of obtaining supplies of fresh water shall be confined to East Islet and Middle Islet of Ashmore Reef.
3. Traditional Indonesian fishing vessels seeking shelter may do so within the island groups mentioned above, but persons shall not go ashore except as mentioned in (2) above.
The memorandum stipulated further that Indonesian fishermen would not be permitted to take turtles in the Australian 12-mile exclusive fishing zone. Trochus, beche de mer, abalone, green snail, sponges, and all mollusks can be taken from seabeds adjacent to Ashmore and Cartier Islands, Browse Islet and Scott and Seringapatam Reefs.
Implementing the memorandum has not been easy. Up to this day, despite numerous circulars issued by either the Directorate General for Fisheries or the local governments fishermen have continued to violate the memorandum. It has not been easy also to ask the traditional fishermen to refrain from going onshore of an island where they have traditionally visited for ages. The problem was therefore more one of education rather than one of law enforcement. It is fortunate that, up to the present, the Australian Government has shown sufficient understanding of the complexities of an enforcement action.
Recently, Australia has also declared its intention to enforce a 200-mile economic zone around its territory. The 200-mile area, if claimed by Australia, although it has not been clearly delimited, would almost certainly affect the fishermen from neighbouring countries, especially fishermen from Indonesia who have been fishing in the area. This is something different from the traditional fishermen discussed above. Taking cognizance of this fact, Australia has also indicated its willingness to consider the matter and has offered the States concerned, including Indonesia, opportunities to discuss whatever fishing interests Indonesia has in the area which would be claimed as part of Australian exclusive economic zone. The matter is now under serious study by the States concerned.
Conclusion
At present the only important agreement on fisheries concluded by Indonesia is the interim arrangement of 1968 with Japanese Fishing and Tuna Associations to fish in the Banda Sea area. After several renewals, the interim arrangement was replaced in 1975 by a profit sharing arrangement between the Indonesian State Fisheries Enterprise and the Japanese Fishing and Tuna Associations. The terms of the interim as well as the profit sharing arrangements were not really profitable to Indonesia. It felt that the terms set forth in the interim arrangement and the profit sharing system needed revision. The arrangements concluded in the past have had many political overtones.
Enforcement of these arrangements has not been easy. Firstly, some of the fishing vessels themselves were reluctant to report to the Indonesian naval authority at Ambon after completing their fishing activities. Secondly, the area of fishing was too large for the limited number of Indonesian patrol facilities to effectively supervise, resulting in many violations committed unnoticed. Thirdly, the Indonesian law enforcement capabilities themselves were extremely limited either in number, equipment, or other facilities. The emphasis on economics in the Indonesian development programme within the last two Five-Year Development Plans has failed to strengthen or improve Indonesian surveillance capabilities for law enforcement at sea. Fourthly, while there was inadequacy in the capability and the efficiency of the law enforcement agencies at sea, the procedures involving judicial solution for any violators caught also required improvement, particularly in speed. Finally coordination among the various law enforcement agencies at sea was poor. It is a well-known fact that in Indonesia the navy, police, immigration, customs, and communications offices has its own enforcement jurisdiction and officers at sea. Although in theory these agencies are under the operational command or regional Defense Commanders, in practice it has not been easy for them to coordinate their activities at sea.
The other arrangement that Indonesia will make with regard to fishing activities in its archipelagic waters concerns the implementation of the traditional fishing rights of the immediately adjacent neighbouring States in certain areas of the archipelagic waters. The details of these arrangements must be negotiated and determined further through bilateral agreements.
Indonesia also has problems concerning its traditional fishing rights in waters off the coast of some of its neighbours. Some of these rights, such as the right to fish off the coasts of Australia, have been regulated through bilateral arrangements. However, more time is needed to effectively implement and enforce such arrangements, especially since traditional fishermen concerned have to be fully educated to get used to the new arrangement.
For various reasons, Indonesia has not yet declared its own exclusive economic zone, although it will certainly do so within the shortest possible time. If and when Indonesia decides to enforce its own exclusive economic zone, it would almost certainly conclude bilateral agreements with the relevant landlocked and "geographically disadvantaged States" in the sub-region of Southeast Asia to enable fishermen from those countries to participate in the exploitation of the surplus living resources within the exclusive economic zone. Similarly, if and when Indonesia declares and enforces its own exclusive economic zone, it would also certainly undertake negotiations with the relevant neighbouring countries to delimit the exclusive economic zone of these countries.
