Promotion and Management of Marine Fisheries in Indonesia

1. Promotion and Management of Marine Fisheries in Indonesia Laode M. Syarif Faculty of Law University of Hasanuddin Makassar-Indonesia June 2006

2. The String of Emeralds on the Equator

3. Territorial Sea & EEZ of Indonesia

4. Indonesia’s Code of Arm Bhinneka Tunggal Ika (Unity in Diversity)

5. Quantity and Value of Oil and Gas Export in Indonesia, 1991 - 2004

7. Export of Non Oil and Gas by Sector and Commodities 2003- 2004

9. Aerial view of mangrove forests that have been cleared for farming and aquaculture

10. Overhead view of shrimp aquaculture and industry complex in Java

11. 50 40 30 Damaged Fair Good Excellent 20 10 0 Year Coral Reefs Condition %

12. Fishing Blast

13. Reefs at Risk in Indonesia

14. Fish Catchment Production 1999-2003

15. 700,000 600,000 500,000 400,000 300,000 200,000 100,000 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Year Total Non-powered boat Outboard motor Inboard motor Total Fishing Fleets Based on Category 1991-2000

16. Economic Value of Fish Catching Production 2000-2003

17. Multiple Demands on Coastal Zones • fishermen villages, • traditional and modern ports, • trade centres, • industrial estates, • housing complex, • tourist attraction, and • water-front cities, etc…

18. Trend of EU Import of Frozen Shrimp from Indonesia

19. Perception/non-perception of basic fisheries issues • Government Officials, • Fishing Industries, and • Traditional small-scale fishermen • Political debate and public awareness with respect to: • the state of fishing industry, • overfishing, • (iii) exploitation of adjacent seas by foreign fleets, • (iv) implementation and coherence of fisheries policies, etc

20. Number of Illegal Foreign Fleets Captured by Coordinated Operation

21. Level of Education of Fishery Human Resources

22. Fisheries governance in the Coastal Zone • prior to the 1999 Local Autonomy Law, and • after the 1999 Local Autonomy Law. The government first addressed the marine and fisheries sectors in 1984 in its Five Years Development Planing (Rencana Pembangunan Lima Tahun – REPELITA IV), but it was not until 1994, in REPELITA VI, that the central government considered marine sector as an independent sector.

23. The 1999 Local Autonomy Law The power of CENTRAL Government is limited to the following aspects: (1) foreign affairs, (2) defence and security, (3) justice, (4) finance, and (5) religion. The 1999 Financial Balance Law The 1999 Financial Balance Law also introduced a new radical formula on the distribution of revenue derived from natural resources extraction, especially those from forestry, mining and fisheries. Under this new law, local government gets 80% of natural resource revenues, while the local government gets 20%, a reversal of the 80/20 split in favour of the central Government prior to 1999.

24. The Impact of the Autonomy & Financial Balance Law These two Acts, however, also contributed to the inconsistency in Indonesia’s legal system, especially on natural resources sectoral legislation. As a result, all sectoral legislation on natural resources including fishery had to be modified to suit the new regime. For instance, there were at least 22 statutes and more than a hundred of government regulations governing about 14 sectors and addressing some aspects of coastal resources, that were substantially altered by the above two statutes The two Acts also created “tension” between Central & Local Government.

25. New Autonomy & Financial Balance Law • Law No 32/2004 on Local Government • Law No 33/2004 on Financial Balance between Central and Local Government • The 2004 Autonomy Law introduced a greater emphasis on the ‘relationship’ between central and regional (provincial and regency) governments, rather than the ‘autonomy’ of the regional government • Article 18(3), regional governments are granted the power to explore, exploit, manage and conserve marine resources within their jurisdictions, including on spatial planning and law enforcement. • Under Article 18(4), provincial government is given the authority to manage its waters up to 12 nautical miles, while regency/municipality has the power to manage up to four nautical miles seaward from shoreline.

26. The 2004 Financial Balance Law Articles 10, introduced three types of funds: (a) revenue sharing fund (DBH), (b) general allocation fund (DAU), and (c) special allocation fund (DAK). Article 11(3) states that the DBH is derived from (a) forestry, (b) general mining, (c) fisheries, (d) oil & mining, (e) natural gas mining, and (f) geothermal mining. Article 14(d) states that: “revenue from fisheries received on a national basis shall be divided 20% for the Central Government and 80% for all regencies and cities”. (Italic added)

27. Structure of the Indonesian Government President & Parliament Cabinet Ministries Governor & Provincial Parliament Regent/Mayor & Regency Parliament Head of Sub-Regency (Camat) Head of Village (Lurah)

28. fisheries management planning; fish resources; total allowable catch (TAC); location for aqua culture; potency of brood stock and fingering allocation of certain fish; types, amount, size of catchment equipment; types, amount, size, and allocation of supporting catchment equipment; zone, route, and time of catchment season; requirements and operational procedure standards of catchments; fishing fleets surveillance system; new type of fish for aqua culture; fish species, location of redistribution, and cultured fish catchments; fish culture and its protection; pollution prevention; rehabilitation of fish resources and its environment; minimum size and weight for allowable catch; fish sanctuary; epidemic and fish epidemic areas; species of prohibited traded fish and for import-export purposes; species of protected fish. Undang Undang No. 31 tahun 2004 tentang Perikanan (Law No. 31/2004 on Fishery), Article 7.Functions of the Department of Marine Affairs & Fishery (DKP) include establishing:

29. Additional functions & powers of the DKP In addition, the DKP has the power to regulate the use of infrastructure and of water resources for aqua culture purposes. [Article 17 & 18(1)] Furthermore, the DKP is also responsible for assessing fishing licences operating in Indonesian water. The small-scale fishermen and small-scale fish farmers are exempted for licence requirement. [Article 26 (1 &2)] Other functions of the DKP in fisheries governance in the coastal zone are determining the basic planning for special fish-ports and their allocation, [Article 41] designing and managing fishery information system including fishery statistics, [Articles 46-47] and encouraging research and development in the fishery sector. [Articles 52-56] The DKP is also responsible in providing education, training, and information dissemination on fisheries. [Article 57-59]. The DKP has the responsibility to ensure that all aspects of the Fishery Act are well implemented at both national and regional levels. This monitoring and surveillance function is new to the DKP. As a consequence, the DKP has to equip itself with sufficient patrol boats, modern radio communication equipment, and weapon if necessary. [Articles 66-70]

30. Other Government Agencies Responsible for Fisheries Management • Provincial Office for Marine Affairs and Fishery (12 nautical miles) • Regency Office for Marine Affairs and Fishery (4 nautical miles) • Other Actors: • Fishermen Groups & Associations • Fishing Industry • NGOs

31. Instrument in Promoting Fisheries Structural policies The DKP has developed policies and programs to promote the fishery sector, such as: enacting the Fishery Act, simplifying administrative process of fishing licences, providing technical assistance for fishermen, initiating cross-departmental co-operations, and promoting the availability of soft loans to traditional fishermen, and providing subsidised fuel to traditional small-scale fishermen. Flowchart of the Administrative Process to Obtain a Catching Licence (IUP)

32. Acceptance and checking of required documentation License application directorate general of CAPTURED fish All required documents presented? No Yes Resource under exploited? Drafting of summary of application and assessment of business scale No Yes Allocation of fishing boat FISHING COMPANY Allocation approval document Fisheries Levy Document Issuing Fisheries Levy Letter Drafting of license Payment of Fisheries Levy Draft License SSBP Paid Final License Finalisation of license

34. In order to narrow the gap and to reduce the sectoral ego between certain government agencies and regional governments, the DKP has established cooperation with relevant institutions, such as: Cooperation with the Department of Trade, Cooperation between the DKP with four Governors to develop Karimata Straight, and Cooperation between the DKP and the Ministry of Transmigration and Labour on the relocation of fishermen to other islands. In addition, the Government has established an inter-departmental cooperation of six Ministries (Ministries of: Agriculture, Forestry, Marine Affairs and Fishery, Man Power and Transmigration, State Ministry for the Acceleration of Less-Developed Regions, and State Ministry for Cooperation and Small and Medium Enterprises) through a program called the Integrated Economic Development Program for Villages based on Agribusiness to assist potential local players to establish business in fishing, agriculture, and forestry related industries.

35. Market organisation The process of marketing fish may involve one or more participants in the market chain, such as: (i) fisherman, (ii) small intermediary, (iii) retailer, (iv) fish broker, (v) wholesalers, and (vi) fish export and processing company. The government have a very limited involvement in the fish market, because they have no direct control over fish price. The involvement of the government is limited to setting the standards and mechanism in fish market. In addition, the Government also provides special fish ports. Special fish ports are divided into four categories: (i) Pelabuhan Perikanan Samudra (PPS), (ii) Pelabuhan Perikanan Nusantara (PPN), and (iii) Pelabuhan Periakan Pantai (PPP), and (iv) Pangkalan Pendaratan Ikan (PPI). PPS is designated for fishing fleets with a capacity of more than 60 GT, while the PPN is for fishing boats with a capacity of 15-60 GT. In addition, the PPP is designated for smaller size (5-15 GT), and the PPI is for fishing fleets less than 5 GT.

36. Coherence with pertinent international trade agreements Indonesia has become a member of the WTO since 1 January 1995. Since then Indonesia’s practices in international trade, especially in fisheries commodities, have complied with some WTO rules and regulations. However, certain practices on shrimp products, such as import ban on shrimp, except for shrimp seeds, can be classified as contradictive to WTO rules. In defending its position, the Government argues that the import ban of shrimp from Thailand and Vietnam is made based on health considerations because they use a lot of antibiotics in their shrimp farms.

37. Legal instruments of fisheries management The main legal instrument of fisheries management is the 2004 Fishery Act. This Act repealed the Undang-Undang No. 9/1985 tentang Perikanan (the 1985 Fishery Act) and the criminal sanction provisions of the Undang-Undang No 3/1983 tentang Zona Ekonomi Eksklusif Indonesia (the 1983 Indonesian Economic Exclusive Zone Act). The Fishery Act consists of 17 Chapters and 111 Articles that cover: (i) fisheries management zones, (ii) fisheries management, (iii) fisheries industries, (iv) information system and fishery data statistics, (v) fisheries taxes, (vi) research and development of fishery, (vii) education, training and dissemination of fishery information, (viii) empowerment of small-scale fish culture, (ix) distribution of power from central to regional government, (x) fishery supervision, (xi) fishery special court, (xii) rules of procedures in fishery special court, (xiii) criminal sanction, and (xiv) transitional provisions.

38. Unique ACT This Act is unique compared to any other Indonesian Acts, because it not only contains a wide range of measures in fisheries management, but it also has its own rules of procedures for its implementation. Under the Fishery Act, the power to investigate fisheries-related cases belong to three government agencies: (i) civil servant investigator, (ii) the navy officer, and (iii) the general police. The Act also established Special Fisheries Court. However, since the DKP has no control over the Supreme Court, the establishment of this Court depends on the discretion of the Supreme Court.

39. Access and catch restrictions, technical measures The Fishery Act established several measures such as: licence, potential allowable catch in certain zones, and protected fish species in national marine parks. Article 26 of Fishery Act requires business actors who are involved in catching, processing, culture and marketing of fish products to have a fishing licence. This provision, however, does not apply to small-scale fishermen. This Act also imposes a restriction to foreign fleets or companies to operate within the territorial sea of Indonesia. The Fishery Act also places a strict condition on fishing boats. For instance, every person intending to build, import, or modify a fishing boat should first obtain an approval from the DKP. Apart from the formal limitation to access imposed by the Fishery Act, the hukum adat (customary law) or traditional wisdom in certain islands still play an important role in fisheries management and access to fish resources. Example: Sasi Laut in Maluku.

40. The Fishery Act also prohibits certain activities and the use of certain equipments that are considered not environmentally sound. Article 8, for instance, prohibits catching methods that use chemicals, explosives, or other equipments that can endanger the sustainability of fisheries resources or endanger the environment. Furthermore, every person is prohibited to own, carry or use fishing gears that do not comply with the size or standards determined by the legislation

41. The impact of and coherence with pertinent international agreements and organisations Indonesia is only a party to ‘general conventions’ such as the United Nations Convention on the Law of the Sea (UNCLOS) & the United Nations Convention on Biological Diversity. Indonesia has not ratified the following ‘specific conventions’: (i) Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas; (ii) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; (iii) Code of Conduct for Responsible Fisheries. Since Indonesia is only bound by the UNCLOS which has very limited provisions on fisheries management in coastal zones and archipelagic waters, Indonesia’s responsibility is limited to: (i) conserving the living resources of the sea; (ii) preventing infringement of the fisheries laws and regulations; (iii) preserving the environment and preventing and reducing marine pollution. The above obligations, however, can be used to hold Indonesia responsible if fishing methods used in its territorial sea can cause marine pollution or environmental damage or if the Indonesian government failed to prevent or control the use of fishing methods or gears that can cause environmental damage.

42. Empirical case studies on Coastal Zone Fisheries Management • promotion regimes • It is fair to say that promotional regimes introduced by the government as • discussed previously may work for modern fishermen but the common traditional • and small-scale fishermen are still the poorest in the society. • Subsidised fuel price for fishermen, for instance, has failed to reach its target due to • inefficient distribution and the existence of many black markets, especially after fuel • price increase earlier this year.

43. The DKP claimed that as a result of its promotional regimes, such as Program Pemberdayaan Masyarakat Pesisir (Empowerment of Coastal Communities Program), the average fishermen income has increased as indicated by the following table:

44. Promotion regimes In relation to the state of fish stock and marine environment, it can be concluded that there is no significant improvement as a result of such promotion regimes. As believed by many environmentalists and the Government itself, the restoration of fish stock in coastal zone and marine environment still needs a serious effort. The total number of fishing fleets has increased approximately 6.64 % per year. Motorised fishing boats with the capacity of 50 to 100 GT have significantly increased and un-motorised boats decreased about 2.38 % in 2003. Due to the promotional regimes introduced in the last 5 years, the Government also enjoys a significant new Pendapatan Negara Bukan Pajak-PNBP (State non-tax revenue) from the fishery sector, which was not available before the establishment of the DKP. The government revenue from fisheries PNBP increased from Rp 4,033 billion in 2001 to 211,746 billion in 2003

45. 2. management measures Management measures introduced by the Fishery Act are a significant development in fisheries management in Indonesia, because its provisions have adopted all the necessary bases for sustainable fishing practices, such as TACs, protected areas, stakeholders involvement, licensing system, certain practice restrictions. However, the Fishery Act still needs a subsidiary legislation to be fully functioned. For example, it has no detailed provision on TAC, taxation, and formal standard for fishing gear and fishing boats. As a result of the ‘incomplete provisions’, the impact of the Fishery Act on fisheries management measures is still less than it should be. Until now, for instance, the DKP has not determined the TAC in various areas of the Indonesian waters, because the lack of scientific data on potential fisheries resources. in relation to the integration of multiple demands on coastal zones, the Fishery Act has no sufficient provision in dealing with such issues, because it requires the involvement of other government departments and regional governments.

46. Management measures (Cont) The DKP has determined the types of legal and illegal-fishing gears to support the full implementation of several restrictions introduced by the Fishery Act. The legal gears include: seine net, gill net, lift net, hook and lines, tuna long line, traps, and prohibits the use of explosive, poison, chemical, electricity, trawl, and shrimp and fish net operated by two boats. Although the DKP has established these criteria, it does not mean that Indonesia is free from illegal fishing gears. In relation to protected areas, the DKP has established conservation areas that are divided into seven categories, namely: (i) taman nasional laut (national marine park), (ii) taman wisata alam laut (recreational marine parks), (iii) cagar alam laut (marine conservation), (iv) suaka margasatwa laut (marine sanctuary), (v) daerah perlindungan laut (marine protected zone), (vi) daerah perlindungan mangrove (mangrove protected zone) and (vii) suaka perikanan (fisheries sanctuary). The Fishery Act has established the basic foundation for sustainable fisheries management in Indonesia, but it requires subsidiary legislation to be fully functioning.

47. 3. enforcement and compliance issues Lack of compliance may be caused by several factors such as: (i) lack of personnel to supervise the implementation of the legislation, (ii) lack of supporting facilities for civil service investigators, the police, and the navy to patrol and investigate IUU; (iii) lack of knowledge and skill of the law enforcers to conduct their jobs; and (iv) acute corrupt practices among law enforcers in fisheries. Lack of political will of the Government, especially from Soeharto’s to Megawati’s administrations, in enforcing the existing law can be seen in the common practice of using explosives and poison throughout Indonesia. Inadequate enforcement also occurs in the use of illegal gears and the breach of licence conditions. The 2005 report of the DKP admitted that apart from increasing the number of capture of domestic and foreign illegal fishing boat, the DKP and other government agencies responsible for the enforcement of all fisheries-related legislation did not meet their target. The report also indicated that in order to increase the level of success of their operation, they need to have a better coordination among themselves.

48. Enforcement and compliance issues (Cont…) The DKP has also developed a strategic planing to boost the level of enforcement, which includes: (i) intensifying coordinated patrol between the DKP, navy, air force, and water police in nine vulnerable areas; (ii) building international cooperation, especially with ASEAN countries to conduct coordinated patrol; (iii) developing fishery supervision agencies in five locations (Bitung, Tual, Pontianak, Belawan, and Jakarta); (iv) establishing five fishery special courts in five cities (Belawan, Jakarta, Pontianak, Bitung, and Tual); (v) prosecuting government officials involved in illegal fishing; (vi) developing the capacity of human resources involved in fisheries management; and (vii) developing people network in the supervision of the enforcement of fisheries legislation.

49. 4. the divergence between ‘law in the books & law in action’

50. 5. realisation of reforms The establishment of the DKP did not only change the old assumption that fisheries resources is a ‘second class’ sector, but also lifted the status of fisheries and other marine resources in the same position with other sectors such as agriculture, mining and industry. The realisation of reform introduced by the DKP and the Fishery Act are still in its early stage and still requires serious efforts from the Government and other stake-holders to be realised. As a result, only a small proportion of promised reform introduced by the DKP and the Fishery Act has been realised.