Imposition of imprisonment for Illegal Fishing Perpetrators in Exclusive Economic Zones
Law enforcement in the Exclusive Economic Zone (EEZ) region often creates problems. One problem that arises is the provision of imprisonment as a substitute for fines for illegal fishing actors in the EEZ area. This is because the United Nations Convention on the Law of the Sea (UNCLOS) 1982, especially in Article 73 paragraph (3) explicitly prohibits coastal states from imposing imprisonment or any form of corporal punishment against illegal fishing actors in the EEZ region. Thus, the criminal penalty allowed by UNCLOS based on this article is a penalty fine. However, UNCLOS did not further regulate if the perpetrator was unable to pay the fine. This raises a problem when a coastal state provides a sentence of imprisonment as an alternative to a criminal fine. In fact, the issue that arises is related to whether or not the provisions in Article 73 paragraph (3) UNCLOS have been violated due to the application of the imprisonment sentence.
Indonesia is one of the countries that apply imprisonment as an alternative to fines based on the Indonesian Criminal Code system (KUHP), if the perpetrator of illegal fishing cannot pay a fine. This is indicated by the different views of the judges regarding the application of Article 102 of Indonesia National Act No.31 of 2004 on Fisheries which is the adoption of Article 73 paragraph (3) of UNCLOS. There are 19 verdicts in fisheries criminal cases at the cassation level, 7 of which impose imprisonment in lieu of fines.[i] The judge who gave the sentence of imprisonment has the argument that what is prohibited in Article 73 paragraph (3) UNCLOS and Article 102 of the Fisheries Law is imprisonment and corporal punishment, while imprisonment in lieu of fines is not further regulated.[ii] In addition, Indonesia is a country that adheres to legal dualism where international treaties will have binding legal force when they have been ratified by national law. So, national law becomes the basis that can decide the recognition of international law.[iii]
UNCLOS is one of the treaties which is non-self applicable but becomes applicable after being ratified by Indonesia. Hence, it shows that Indonesia's national law is the basis UNCLOS can be applied in Indonesia. When UNCLOS does not answer the problem when the imposition of fines is not paid by the perpetrators of illegal fishing in relation to Article 73 paragraph (3), then Indonesia can implement policies to use national law in order to provide legal certainty. In the case of Kosovo which applies the pacta sunt servanda principle to be bound by international treaties, the international court remains not authorized to order a ban on the use of national law, as indicated in the Inter-American Court of Human Rights Advisory Opinion.57.[iv]
Therefore, the judge's action in imposing imprisonment can be justified, when it is possible that the perpetrator of illegal fishing does not pay a fine, by referring to Article 30 paragraph (2) of the Criminal Code relating to imprisonment as a substitute for a fine[v] and the fact that the imposition of fines and the prohibition of corporal punishment in effect is not effective.[vi] The actions of judges as law enforcement authorities represent the use of national law when international law is not effective in the area of national legal sovereignty, as well as a form of providing legal certainty.
Guinea-Bissau also applies detention in the case of a Panamanian-flagged tanker proven to have bunkered a foreign vessel fishing in the EEZ region of Guinea-Bissau.[vii] In connection with the detention carried out by Guinea-Bissau, questions arise about whether or not there is a violation of Article 73 paragraph (3) UNCLOS related to the prohibition of imprisonment and corporal punishment. The trial results stated that the court found no violation of the prohibition in Article 73 paragraph (3) UNCLOS.[viii] In adjudicating this case, the panel of judges from the International Tribunal for the Law of the Sea applied the provisions in Article 31 paragraph (3) of the Vienna Convention on the Law of Treaties 1969, which is to assist the parties to interpret the provisions in UNCLOS, particularly in relation to the meaning of "imprisonment".
The Assembly is of the view that the size of the confinement taken by Guinea-Bissau with respect to the crew of the ship during the initial period of detention of M / V Virginia G (the Panama-flagged vessel) at sea and subsequent stay on board at the Port of Bissau, cannot be interpreted as “imprisonment” as in the case finally the crews were free to leave the ship.[ix] The Panel found that in this case no imprisonment was imposed on M / V crew members Virginia G and that Guinea-Bissau did not violate the provisions of Article 73 paragraph (3) UNCLOS.[x]
The results of the decision by the panel of judges of the International Tribunal for the Law of the Sea which decided that the size of the confinement provided by Guinea-Bissau to the crew of the M / V Virginia G crew in the form of holding a passport that does not violate the provisions of Article 73 (3) UNCLOS shows that there has been no official interpretation word of "imprisonment”. So, the imposition of imprisonment punishment is possible. Then an example of another case is the case of illegal fishing carried out by foreign vessels without a permit in the EEZ region of Namibia. In Case study 1: S v. Curras 1991 NR 208 (HC), in which a Spanish citizen uses his boat to do illegal fishing in the EEZ region of Namibia who is then convicted with a fine of N $ 400,000 and failure to pay fine results in having to go to prison for 4 years.[xi]
Subsequently, in 1996 there was a case of a Spanish fishing boat captain who was arrested for illegal fishing in the EEZ region of Namibia without a permit, then was sentenced to pay a fine of N $ 300,000 or 4 years in prison.[xii] This shows that the Namibian Government has strong law enforcement in dealing with illegal fishing in the Namibian EEZ region in order to protect the resources of the Namibian EEZ region and to develop Namibia's own fishing industry.
In both cases, Namibia did not violate the provisions in Article 73 paragraph (3) UNCLOS because it was related to Article 73 paragraph (2) of the a quo Convention, namely that the ship and its crew had to be released after placing a reasonable bond or other security. This is related to guarantees and fines. So, if the captain and/or crew of the ship does not pay the fine imposed on him, then it is true that he has to stay or go to prison in the country concerned, and when the sentence of imprisonment is made as an alternative it is permissible because the perpetrator himself brought himself to be imprisoned for not paying fine.[xiii] Therefore, the punishment of imprisonment is permissible when it is an alternative and is related to individual criminal responsibility, so the guilty individual chooses to receive a sentence of imprisonment because he cannot pay a fine.
The interpretation of the word "imprisonment" and the word "corporal punishment" is always a matter of debate. That is because UNCLOS and its annex do not explain the meaning of these words. So it is natural that law enforcement in one country and another country has a different interpretation. The concept of imprisonment in several countries criminal regulations, such as in Article 9 Paragraph (1) letter a number 1 of the Dutch Criminal Code, Articles 38 and 39 of the German Criminal Code, and Article 13 point 1 of the French Criminal Code, are categorized as imprisonment.[xiv] Meanwhile, the definition of corporal punishment according to the Black Law's Dictionary is a physical punishment that is distinguished by punishment or fines, or all types of punishment inflicted on the body, for example whipping (The Law Dictionary).[xv]
It can be concluded that the application of imprisonment in the EEZ region does not contradict the provisions in Article 73 paragraph (3) UNCLOS, although there is no agreement between the disputing countries. The reasons that imprisonment is allowed and possible to apply is due to differences in the judge's views regarding this article, the judge's attempt to provide legal certainty because the regulation if the criminal penalty is not paid by the convicted of illegal fishing is not regulated in UNCLOS, based on the Guinea-Bissau study case. detained the passport of the Virginia G M / V crew members not violating UNCLOS provisions, the use of imprisonment penalties only as an alternative to fines, individual criminal liability, and imprisonment penalties are not included in the interpretation of the word imprisonment and corporate punishment in Article 73 paragraph (3) UNCLOS.
[i] Sherif Maronie, “Telaah Penegakan Hukum Tindak Pidana Perikanan di Wilayah Perairan Zona Ekonomi Eksklusif,” https://kkp.go.id/djpsdkp/artikel/4326-telaah-penegakan-hukum-tindak-pidana-perikanan-di-wilayah-perairan-zona-ekonomi-eksklusif-indonesia-sherief-maronie(accessed August 05 2020). [ii] I Dewa Ayu Maheshwari Adinda, et. al., “Problematika Penegakan Hukum Dalam Tindak Pidana Illegal Fishing di Wilayah Perairan ZEE Indonesia,” Journal of Magister Hukum Udayana, no.2 (2018): 244. [iii] Visar Morina, Fisnik Korenica, and Dren Doli, “The Relationship Between International Law and National Law In the Case of Kosovo : A Constitutional Perspective,” International Journal of Constitutional Law, no.1 (2011): 280. [iv] Doli, 290.
[vii] Opinio Juris, “Guest Post : Law Of The Sea Tribunal Implies A Principle of Reasonables in UNCLOS Article 73,” http://opiniojuris.org/2014/04/17/guest-post-law-sea-tribunal-implies-principle-reasonableness-unclos-article-73/ (accessed August 06 2020)
[viii] Bernard Oxman and Vincent P.Cogliati-Bantz, “The M/V “Virginia G” (Panama/Guinea-Bissau). Case No. 19. 53 ILM 1164 (2014) International Tribunal for the Law of the Sea, April 14, 2014,” The American Journal of International Law, vol.108: 773. [ix] International Tribunal For the Law of the Sea, “Reports of Judgements, Advisory Opinions and Orders, The M/V “Virginia G” Case (Panama/Guinea-Bissau) List of Case : No.19: 90,” https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment_published/C19_judgment_140414.pdf (accessed August 06 2020).
[x] International Tribunal For the Law of the Sea, “Reports” 90.
[xi] Gerd Winter (Ed), Towards Sustainable Fisheries Law. A Comparative Analysis, ( Switzerland, IUCN, Gland, 2009), 177-178.
[xii] Winter, 178.
ABOUT THE AUTHOR
This blog has been authored by Septiani Eka Wahyu Pratiwi who is a 4th Year LL.B. student at Gadjah Mada University, Indonesia.
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