Indonesian authorities sinking a Vietnamese fishing boat at Datuk island in West Kalimantan, on May 4, 2019. Image Courtesy: The Straits Times/ AFP
Article No. 23/2019
Courtesy: Thayer Consultancy Background Brief, May 17, 2019
We request your assessment of the following issues: Q1. Indonesia just sunk 51 boats, thirty of which came from Vietnam. It is the latest development of Indonesia’s policy to deal with illegal boats in its Exclusive Economic Zone (EEZ). What will be the impact, domestically and diplomatically?
ANSWER: Indonesia has been burning and sinking foreign fishing boats in its EEZ since October 2014. The total number is 488 boats of all nationalities. This figure is prior to the sinking of 51 additional fishing boats in May after a suspension of several months. This policy is a popular one in Jakarta because of the economic losses suffered by Indonesia and its fishing community through Illegal Unreported and Unregulated (IUU) fishing. The latest round of sinkings came after President Joko Widodo (Jokowi) was re-elected.
All regional governments concerned want to control and eliminate IUU fishing but at the same time they also want to protect the rights of their fishermen and see they are treated humanely.
ASEAN has in place a Strategic Plan of Action on ASEAN Cooperation on Fisheries, 2016-2020. This Strategic Plan calls for ASEAN members and the international community to cooperate in order to combat IUU fishing.
An international Agreement on Port State Measures came into force in June 2016. Sixty states have signed this agreement. It is a binding agreement that would prevent vessels identified as IUU fishing boats from using ports and landing their illegal fish catch in states that are signatories. Only five ASEAN members are parties to this agreement – Indonesia, Myanmar, Philippines, Thailand and Vietnam. The United States and Japan have also signed this agreement but not China, Brunei, Cambodia, Malaysia, and Singapore. Indonesia has been proactive in trying to mobilize the international community to combat IUU fishing. In October 2018, for example, Indonesia hosted the Our Ocean international conference. China did not attend. Indonesia has burned boats from a number of countries. For example of the 51 boats burned this month 38 boats came from Vietnam, 6 from Malaysia, 2 from China, one from the Philippines and 4 foreign-owned boats flying the Indonesian flag. Earlier boat burnings have included vessels from Thailand. Both China and Vietnam have raised this issue through diplomatic channels.
The norms of the ASEAN Way preclude binding and enforceable mechanisms. In other words, Indonesia’s policy of burning IUU fishing boats in a bilateral matter between the states directly concerned. At present Indonesia’s policy has impacted most heavily on Vietnam.
Q2. It has been said that because the sinking of foreign boats is popular, building up the reputation of President Widodo and his Minister for Maritime Affairs and Fisheries, it would be difficult for Widodo to back off. Do you think Widodo will promote domestic populism at the expense of relations with neighbouring countries?
ANSWER: Recent research has shown that Indonesia’s policy is having an effect on reducing the presence of foreign IUU fishing boats in Indonesia’s EEZ. Indonesia has been circumspect in dealing with Chinese IUU fishing boats because of the pressure China can bring to bear; the evidence indicates that Chinese IUU fishing has dropped off. A report to the 10th international conference on the East Sea (South China Sea) hosted by the Diplomatic Academy of Vietnam in Da Nang in late 2018 identified Vietnam as the main transgressor in Indonesian waters.
While domestic nationalism plays a role in the policies of the Jokowi government, economic concerns are foremost. Indonesia does not face a choice between domestic nationalism and relations with Vietnam. Indonesia and Vietnam are both strategic partners and signatories to the UN Convention on the Law of the Sea. They have a legal obligation to demarcate their respective maritime zones. In the interim they are enjoined to adopt measures of a practical nature to manage their dispute.
While bilateral negotiations on the sea boundary are underway, these talks should be accelerated as a matter of priority. The two sides should reaffirm that they will treat IUU fishing boats and their crews humanely, and expeditiously return boats and their crews that have been detained. Indonesia should cease its policy of burning and sinking IUU boats. Vietnam should exercise self-restraint and prevent further ramming incidents between its Coast Guard vessels and Indonesian navy ships.
Q3. Indonesia is not the only country whose EEZ had been violated by foreign boats, so what should be done between the countries involved?
ANSWER: The manner in which Malaysia has responded to IUU fishing should be followed. For example, since 2006 Malaysia has detained 748 Vietnamese fishing vessels and 7,203 Vietnamese crew but has not sunk any of the vessels. Vietnam too has a role to play in preventing its fishing boats from IUU fishing in the waters of other ASEAN states. Vietnam has strategic partnership agreements with Indonesia, Malaysia, the Philippines and Thailand and the consultation mechanisms in these agreements should be used to manage IUU fishing.
Q4. How would it affect ASEAN’s and its ability to confront China’s expansionism, given that ASEAN has not been united?
ANSWER: ASEAN has in place the Strategic Plan of Action on ASEAN Cooperation on Fisheries, 2016-2020. IUU fishing is not a matter between China and individual ASEAN states but a bilateral matter between ASEAN members whose fishermen engage in IUU fishing. For example, a recent study by academics at the University of California at Santa Barbara noted that China’s fishing fleet was the largest distant fishing fleet in the world. Chinese boats engaged in IUU fishing accounted for between 2,000 and 5,000 hours of fishing per month in Indonesian waters. This was ten times greater than the second largest IUU fishing country, Thailand. An analysis of satellite imagery and other sources revealed that Chinese illegal fishing hours had dropped to near nil. Part of this reduction was attributed to superior Chinese technology on its fishing fleet that enabled boats to escape.
In sum, IUU fishing is not a problem of China versus ASEAN but a regional problem in which fishing boats from China and some ASEAN member states are engaged in IUU fishing. In other words, this is a non-traditional security threat posed by non-state actors. This prompted Indonesia to include illegal fishing as one of the areas to be addressed cooperatively in the ASEAN- China. Single Draft South China Sea Code of Conduct Negotiating Text adopted in August 2018.
We request your assessment of Indonesia’s policy of sinking foreign fishing vessels from neighboring countries caught in its Exclusive Economic Zone.
Q1. How contentious is this policy when most countries, such as Vietnam and China, arrest and release vessels instead of sinking those ships like Indonesia?
ANSWER: Indonesia’s policy of sinking foreign fishing vessels is unique to the region in terms of the sheer number of fishing boats involved. Reportedly, Indonesia has sunk 488 fishing boats of all nationalities for illegal, unreported and unregulated (IUU) fishing since October 2014. In contrast, since 2006 Malaysia has detained 748 Vietnamese fishing vessels and 7,203 Vietnamese crew but has not sunk any of the boats. Indonesia suspended boat sinking for several months this year but on 4 May it resumed the practice when it sank 53 boats, mostly from Vietnam.
On occasion Australia has burned and sunk Indonesia vessels caught fishing illegally in its Fishing Zone on the grounds of a threat of spreading disease. In December 2017, for example, Australia burned three Indonesian fishing boats and fined their masters $1,000 each.
Indonesia’s policy is contentious as international law requires the prompt release of fishermen and their boats.
Q2. How will this controversial act affect the unity of ASEAN?
ANSWER: IUU fishing is an issue that affects all ASEAN littoral states. This is reflected in the Strategic Plan of Action on ASEAN Cooperation on Fisheries, 2016-2020. This Strategic Plan calls for ASEAN to engage with regional and international processes “to improve the governance of transboundary fishing and traceability of fishery products in order to combat IUU fishing. In particular, improve the regulation and control of fishing vessels through registries, the use of vessel monitoring systems and effective catch documentation schemes.” The Plan of Action endorses five activities: 1. Cooperation among ASEAN members and with regional and international organisations to combat IUU fishing; 2. Strengthen regional and national policy and legislation to implement measures to combat IUU fishing through the adoption of National Plans of Action; 3. Strengthen regional and sub-regional coordination on fisheries management to combat IUU fishing, including regional monitoring and control networks; 4. Build the capacity of. ASEAN members to meet the requirements of Port State Measure and Flag State Responsibilities; and 5. Implement the ASEAN Guidelines for Preventing the Entry of Fish and Fisheries Products from IUU Fishing Activities into the Supply Chain.
ASEAN’s Plan of Action for cooperation on fisheries serves as a mechanism in which Indonesia’s policy of sinking IUU fishing boats can be discussed. Given the norms of the ASEAN Way, there is no enforcement mechanism.
Therefore, Indonesia’s policy of sinking IUU fishing boats will remain a bilateral matter between the states directly concerned. The crux of the matter is that Vietnamese fishing grounds off its central coast have been both over fished and polluted. This has driven Vietnamese fishermen further south into contested waters. Indonesia and Vietnam have an agreement demarcating their respective continental shelves but they do not have an agreement demarcating the maritime boundary.
According to a report to the 10th International South China Sea Conference hosted by the Diplomatic Academy of Vietnam last year, fishing boats from Vietnam constituted the largest number of IUU boats in Indonesian waters.
The recent incident when two Vietnamese Coast Guard vessels were involved in the ramming of an Indonesian Navy ship in order to prevent it from arresting a Vietnamese IUU fishing boat was a dangerous and irresponsible incident and a violation of the 1972 International Regulations for Preventing Collisions at Sea (COLREG).
Indonesia and Vietnam are responsible members of ASEAN and they are both strategic partners. The two sides should follow the UN Convention on the Law of the Sea and agree to a demarcation of their maritime boundary and in the interim adopt measures of a practical nature to prevent the dispute from escalating. Vietnam and Indonesia need to identify disputed maritime areas and without prejudice to their maritime claims agree on how to manage disputes in this area. Both sides should refrain from provoking collisions at sea. And both sides should agree on the humane treatment of fishermen who are detained, an expeditious resolution of any incident, and the prompt return of any fishing boat and its crew that has been apprehended.
[Carlyle A. Thayer is an Emeritus Professor at the University of New South Wales, Australian Defence Force Academy, Canberra. The views expressed are his own. All his background briefs are posted on Scribd.com (search for Thayer). Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. The views expressed in this article are of the author.]