INTRODUCTION
Sea is the largest part of the earth. Approximately 70% part of our earth is sea and the rest is land. In Roman era, Roman Empire controlled Mediterranean Sea, it was to guarantee all people under Roman Kingdom to establish or to develop the trade from the pirates.[1] However, after Roman Kingdom downed, some countries appeared near Mediterranean Sea started to claim the territory of the sea that adjacent to their internal water or beach.[2] From that, international society believe there should be law or regulations about this, which is what we know international law of the sea at this time. The development of the law of the sea is inseparable from the development of international law in general.[3] It grew up only when the emergence of independent States made possible truly international relations, instead of imperial relations which subsisted throughout the life of the Holy Roman Empire[4] as what has been stated in previous line.
International law of the sea is a set of legal norm that regulates about the rights and obligations of every country in the world in terms of using the sea, including to explore the natural resources even how to pass to other countries’ territorial sea. In this paper, the writer will focus on the development of international law of the sea from Roman Era, middle century, before and after world war II and try to make an analysis about the case related to international law of the sea.
PROBLEM STATEMENTS
1. How is the development of international law of the sea from Roman era, middle century, and after World War II?
2. How is the position of demolition ship by the Indonesia’s Minister of Maritime Affairs and Fisheries, Susi Pudjiastuti, in international law perspective?
ANALYSIS
1. Roman Era
In Roman Era, Rome Empire had power or authority towards the Mediterranean Sea that made it is free from any threat or damage done by some pirates. They believe that Ocean is res communis omnium.[5] After Rome Empire down, many kingdoms and states located at the edge of Mediterranean Sea started to ask “who is the owner of this Sea (Mediterranean Sea)?” and also some of them think that Sea is res nullius.[6] Problems are appeared after that and every country and kingdom tried to claim the Sea to be theirs.
2. Middle Century Era
After Rome Empire down, the countries near Mediterranean Sea claimed some parts of beach adjacent with their beach in several reasons. Those reasons are: (1) quarantine (for health) especially for black plague; (2) tax (smuggling preventive); (3) national defense and neutrality.[7] Because of those claims from some countries it made a condition where Sea was not a territory owned by all of mankind. This condition made some international experts such as Bartolus and Baldus give their opinion and solutions. According to Bartolus, water territory separated into two authorities, territory that the coastal state have authority on it and territory that no one have authority on it (high sea). While according to Baldus, he separated water territory into three authorities: (1) ownership towards the sea; (2) usage of the sea; (3) jurisdiction towards the sea and authority to do protection towards the interests at the Sea.[8]
The most important event in history of development of international law of the Sea is the separation of the whole Sea and Ocean into two parts by Paus Alexander XII in 1493 in a charter called Inter Caetera. According to this charter, every sea and ocean at west meridian (longitude) located moreless 400 miles from Azores island is belongs to Spain, while at east belongs to Portugal.[9] Those claims by Portugal and Spain is not working in North Ocean of Europe Continent which is has Dominium Mares[10]claimed by Denmark. United Kingdom also apply the doctrine to protect their fisheries from foreign fishermen. Hugo Grotius from Dutch, opposed those claims, he believed in freedom of navigation. There was a contradiction between mare clausum and mare liberum followers.
Hugo Grotius has introduced freedom of the seas on his book entitled “Mare Liberium” in 1609. He said that the seas can be owned even he believed in ownership concept for instance occupation, prescription, and such. According to him, the seas can be owned because it is unlimited.[11] Seas can be bought or sold and only under God’s ownership.[12] Many international law experts opposed Grotius’ thought which are Gentilis, William Welwood, John Borough, Paulo Sarol, dan John Shelden.[13] Shelden is one of international expert who opposed Grotius the most, he said that the seas can be owned according to prescription theory. In her book, Dr. Sefriani states the definition of prescription,“Preskripsi adalah perolehan wilayah oleh suatu Negara akibat pelaksanaan secara damai kedaulatan de facto dalam jangka waktu yang lama atas wilayah yang sebenarnya de jure masuk wilayah Negara lain.”[14] Shelden believed that dominium (rights of property)[15] or claim towards the seas is not contradicted with nature law or League of Nation as implemented by some states such as Sweden, Russia, Germany, Genoa, and Venesia.[16] In order to bridge the contradiction between Grotius and Shelden, Pontanus divided the seas into two parts; first is adjacent sea which can be owned and the coastal state has sovereignty of it, second is high sea which the free seas and belongings to no one. His thought is the basic for territorial sea theory that we know in this era.[17]
Cannon shot rule had been introduced by an international expert from Dutch, Cornelis van Bynkershoek, he said that the sovereignty of the coastal state ended as well as when the cannon shot end or three miles. In the beginning, this theory had had recognitions from some international experts such as Surland, Moser, ad Vattel.[18] In the beginning of 18’s some smuggling case happened in UK and USA, and they said 3 miles is not enough to protect their territory from smuggling. In 1783, parliament of the United Kingdom created the committees to investigate more about the smuggling. One of the parliament commission’s suggestion to eradicate smuggling activity is by expanding jurisdiction into 12 miles. In 1992, USA enacted law of customs (The Tariff Act of 1992) reaffirmed jurisdiction for anti-smuggling for any stuff is 12 miles from US’ shore. Unfortunately this 12 miles was not the fix number even after Den Haag Codification Conference in 1930.
3. After World War II
Although Den Haag conference 1930 failed to determine the wide of the territorial sea, it reached important achievement for the development international law of the sea. First, the affirmation that state’s sovereignty included the sea bed and sub soil also the air space above it. Second, the rights of innocent passage. Foreign vessels could pass through the territorial sea of other countries by obeying coastal state’s regulation and coastal state should allow the foreign vessels to pass. Third, regarding base line, bay, port, and islands.
On September 28th 1945, Truman, the president of USA at that time released a proclamation about continental shelf. His consideration was it is necessary to save the natural resources in sea bed and subsoil for the next generation of USA. In this era, Latin America countries claimed 200 miles of continental shelf range from the shore. Truman’s proclamation and claim by Latin America countries are affecting the development of international law of the sea we recognize nowadays.
In 1958, law of the sea conference had been conducted in Geneva. This conference also known as UNCLOS I and achieved 4 conventions which are; 1) territorial sea and contagious zone, 2) high seas, 3) fisheries and protection of natural resources at high seas, and 4) continental shelf.[19] In 1958 the second conference held (UNCLOS II), it still could not determine the wide of territorial sea and fisheries zone which created uncertainty towards the law on the sea. In UNCLOS III (1973-1981), the general assembly suggested this conference should reach the deal towards the substantive problems. According to leader of second commission, Andres Aguilar from Venezuela, said territorial sea and exclusive economic zone 200 miles are the key of the problem of the majority countries in the conference. Each of the leader of the committee proposed “Single Negotiating Text” about the EEZ stated in article 45:
a. Sovereign right for exploration and exploitation conservation and natural resources management towards sea bed and subsoil from territory under the sea.
b. Exclusive rights and jurisdiction in establishing and using man-made island, installation, and establishing building.
c. Exclusive jurisdiction about another activity for economic exploitation and exploration from zone, such as produce the energy from water, flow and win from science research.
d. Jurisdiction about maintenance of the marine environment, including monitoring and pollutant’s reduction.
e. Other duties and obligations regulated in this convention.[20]
After ten times’ trial, on March 1982 the convention of law of the sea accepted.
4. Susi Pudjiastuti’s Act in International Law Perspective
Since 2014 until April 2017, 317 ships had been demolished by Indonesia’s Minister of Marine Affairs and Fisheries, Susi Pudjiastuti.[21] She cooperated with Indonesian navy and police water during the demolition of the ships. This action supported by president of Indonesia, Joko Widodo, and article 69 section (1) and (4) Law number 45 year 2009 about fisheries. Section (1) states “Kapal pengawas perikanan berfungsi melaksanakan pengawasan dan penegakan hukum di bidang perikanan dalam wilayah pengelolaan perikanan negara Republik Indonesia". Section (4) states “Dalam melaksanakan fungsi sebagaimana ayat (1) penyidik dan atau pengawas perikanan dapat melakukan tindakan khusus berupa pembakaran dan atau penenggelaman kapal perikanan berbendera asing berdasarkan bukti permulaan yang cukup". The government of Indonesia is not afraid if other states complain about ship demolition done by Indonesia. According to Indonesia’s Minister of Foreign Affairs, Retno Marsudi, the action has purpose to enforce the law in Indonesia’s territory.[22]
In United Nation Convention on Law of the Sea (UNCLOS) 1982 article 73, not explicitly regulate about the demolition of ship.[23] This article only focus about the fine should be paid by the crew.[24] And after fine has been paid, the crew and captain should promptly release. It is true that the action conducted by Indonesia is not contradict with international law, many countries done same thing for the same case. Australia had demolished Eka Sakti ship in 2008 because violated their law on the sea. According to Indonesia’s ambassador in Australia,
approximately 1,200 ships had drowned by government of Australia.[25] However, it is not simply drown foreign ship caught conducted illegal fishing in Indonesia, before drown the ship government must be sure that they have sufficient evidence such as ship which will be drowned do not have SIPI (Surat Izin Penangkapan Ikan) and SIKPI (Surat Izin Kapal Pengangkut Ikan) and caught conducting fishing in territorial water or ZEEI.[26]
Despite not regulate in UNCLOS, states practice show this action is included as customary international law. It is important for every state to pay attention to the restrictions stated in UNCLOS. If state takes wrong action, which is forget to think about principle regulated in international convention, opponent state will sue back because violating international law. In conclusion, Susi Pudjiastuti took the right action in order to enforce the sovereignty of Indonesia as Independence state.
CONCLUSION
International Law of the Sea we recognize nowadays had through long journey from Roman Empire, Middle Century, and after world war II whereas UNCLOS III officially accepted. Many challenges faced by international society. Started from Roman Empire who had authority towards Mediterranean Sea. Sea separated into Spain and Portugese authorities, and the wide of territorial sea created pros and cons. These long journeys ended when UNCLOS III officially accepted by international society and it is world society’s guidance in behave on the sea. Nowadays, ship drowning is creating pros and cons in society, as it is not regulate in UNCLOS but states practice show that is legal under customary international law. Many countries such as Indonesia, Australia, and America apply this action. That is how independence states show their sovereignty over their territory.
[1]Mochtar Kusumaatmadja, Hukum Laut Internasional, Bincacipta, Bandung, 1978, p. 3.
[3]R. R. Churchill, A. V. Lowe, The Law of The Sea, Manchester University Press, UK, 1985, p. 3.
[5]Res communis omnium is the rights of all mankind to use the Sea, rights to pass, to explore the natural resources, and other interests that conducted at the Sea.
[6]Res nullius, according to this doctrine, the Sea can be owned by the owner that able to occupy it.
[7]Mochtar, op.cit, p. 5.
[10]Dominum Mares is a doctrine which states that the sea can be owned in order to protect the fisheries interest, sailing, or even eradication of pirates.
[11]Hestika Dwi, ‘Sejarah Perkembangan Hukum Laut Internasional’, 2014, http://www.academia.edu/7135210/sejarah_perkembangan_hukum_laut_internasional, p. 6., (accessed 9th July 9, 2017)
[12]Chairul Anwar, Zona Ekonomii Eksklusif Didalam Hukum Internasional, Sinar Grafika, Jakarta, 1995, p. 68.
[13]Hestika Dwi, op. cit., p. 7.
[14]Sefriani, Hukum Internasional Suatu Pengantar (Edisi Kedua), Rajawali Pers, Yogyakarta, 2009, p. 178.
[15]R. R. Churchill, A. V. Lowe, op. cit., p.59
[17]Mochtar, op. cit, p. 19.
[19]Damang, Rezim Hukum Laut, [website], 2012, http://www.negarahukum.com/hukum/rezim-hukum-laut.html, (accessed 13 July 2017)
[21]Fabian Januarius, ‘Lagi, 81 Kapal Pencuri Ikan Ditenggelamkan di Penjuru Indonesia’, [website], 2017, http://nasional.kompas.com/read/2017/04/01/12003881/lagi.81.kapal.pencuri.ikan.ditenggelamkan.di.penjuru.indonesia, (accessed July 16, 2017)
[23]Sefriani, op. cit., p. 190.
[25]Hanyen, ‘Penenggelaman Kapal Ikan Asing Yang Melakukan Illegal Fishing di Indonesia’, p. 4., [website], https://www.academia.edu/17052193/Penenggelaman_Kapal_Ikan_Asing_Yang_Melakukan_Illegal_Fishing?, (accessed July 16, 2017)
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