THE HABIBIE CENTER

DISCUSSION REPORT No. 22/May 2016

33 rd TALKING ASEAN The Prospect for Maritime Law Enforcement Cooperation in the Region

The Habibie Center, Jakarta May 25, 2016

INTRODUCTION JAKARTA – On Wednesday, 25 May 2016, The Habibie Center hosted the 33rd Talking ASEAN dialogue titled “The Prospect for Maritime Law Enforcement Cooperation in the Region” at The Habibie Center Building in Jakarta. This edition of Talking ASEAN was moderated by A. Ibrahim Almuttaqi (Head of ASEAN Studies Program, The Habibie Center) and featured an expert panel made up H.E. Amb. Arif Havas Oegroseno (Deputy Minister for Maritime Sovereignty, Ministry for Maritime Affairs Republic of Indonesia), First Admiral Yuli Dharmawanto (Legal Director, Maritime Security Board, Republic of Indonesia), René Pattiradjawane, (Chairman of Center for Chinese Studies Foundation, Indonesia) and Dr. Arie Afriansyah (Djoko Soetono Research Center, Faculty of Law, Universitas Indonesia). The objectives of this Talking ASEAN were to: (a) identify the state of non-traditional, trans-national maritime security threats, especially piracy and armed robbery, in Southeast Asia; and (b) explore the limit and opportunities for maritime cooperation in Southeast Asia in general, and maritime law enforcement cooperation in particular. This discussion report summarizes the key points of each speaker, as well as the question and answer session that followed.

SPEAKERS’ PRESENTATION Dr. Arie Afriansyah traffic flows in the region, the threat of marine pollution also increases. Another growing maritime concern is the issue of IUU Fishing. Dr. Afriansyah claimed that Indonesia actually has tougher policies on this matter. However it still needs regional agreement in combating IUU Fishing. The fourth maritime issue that Dr. Afriansyah mentioned in his presentation was piracy and armed robbery. He emphasized that there is a major distinction between those two. While piracy occurs on the high seas, armed robbery takes place within state’s internal waters, archipelagic waters and territorial sea. There have been a number of international instruments in maritime security sector. For instance, there is the 1988 Convention for The Suppression of Unlawful Acts At Sea (SUA) and the 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). ReCAAP is the first regional government-to-government agreement to promote and enhance cooperation against piracy and armed robbery in Asia. Dr. Afriansyah argued, ReCAAP provides an opportunity for regional cooperation for combating piracy and armed robbery by regulating the rights and obligation of the states. If states are committed to the rights and obligation, many maritime security issues will be easily mitigated.

Dr. Arie Afriansyah - Djoko Soetono Research Center, Faculty of Law, Universitas Indonesia

The first to speak in this edition of Talking ASEAN was Dr. Afriansyah who focused on four major points: 1) Indonesia’s experience in the maritime security cooperation; 2) the current regional maritime issues; 3) international and regional instruments in maritime security cooperation and; 4) the prospects of maritime security regional cooperation. Dr. Afriansyah began by presenting data from the Maritime Security Board (Bakamla) on crime rates in Indonesian waters. It showed how maritime had become the field of many occurring crimes, therefore, it is a big responsibility for the government as Indonesia is a huge area to cover. Indonesia indeed has regulated many laws on maritime security issues. Even some of the ASEAN members have signed and ratified the UN Convention Against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. However, Dr. Afriansyah argued that the problem lies on the law enforcement and corruption.

At the end of his presentation, Dr. Afriansyah identified the opportunities and limitation of maritime security regional cooperation. Some of the limitations are the different interests of the involved parties and their different perspective of threat. National capabilities also remain a great challenge: a common capacity building and join-training is significantly needed. On the other side, there are some opportunities that can be explored to further enhance the cooperation in this sector. As this issue has become a common concern, ASEAN will be able to benefit by utilizing its existing platform.

In the next part of his presentation, Dr. Afriansyah went on to identify current maritime issues. The first is maritime territorial dispute. There are a number of areas in Southeast Asia where maritime boundaries have not been resolved between neighboring states, most notably in the South China Sea. The second is the issue of marine environment degradation. Southeast Asia is the easiest and the busiest route and as shipping

“If states are committed to the rights and obligation, many maritime security issues will be easily mitigated.” - Dr. Arie Afriansyah 1

SPEAKERS’ PRESENTATION René Pattiradjawane to uncover the political interest and diverged ideology. Thirdly, security practice theory enables the study of what actors actually do when they claim to enhance maritime security. Together, these will allow for the mapping of maritime security. Mr. Pattiradjawane further elaborated that the concept of sea power and maritime security are century olds of understanding. Meanwhile during the peace period, the role of warship is mainly seen as protecting the sea line of communication in order to facilitate trade and economic prosperity for deterrence and surveillance. The concept of sea power is interrelated to maritime security in several ways. First, it concerns the fact that naval forces are one of the major actors in maritime security. Moreover, the discussion of sea power René Pattiradjawane - Chairman of Center for Chinese Studies Foundation, Indonesia addresses how state forces should act outside their territorial waters, engage in other region than their own At the beginning of his presentation, Mr. Pattiradjawane and have a presence on the international water. stated that the oceans are often taken for granted. No Mr. Pattiradjawane continued by exploring the corporations control them, no military dominates them, inter-connection of maritime security and economic and the oceans are essential for humans as they provide development. The two core dimension in the concept them with goods for economic and social needs. of blue economy: food security and the resilience of Today oceans are still essential for economic coastal cooperation are directly linked. It should be development. Therefore, it is not surprising that considered that there is a semiotic relation of maritime economic development and a country’s prosperity security with human security. He emphasized that are often linked to its proximity to the sea. Mr. human security is the proposal for an alternative Pattiradjawane argued that contemporary maritime understanding of security in terms of national security security are directly linked and interdependent with itself. It explains how the contemporary understanding human security and development. The increasing of the ocean and the sea as a space of insecurity and frequency of non-states actor in the issue of maritime threat has evolved and changed over time. security resulted in its uniqueness with traditional The major international actors define maritime security security challenges. Piracy, terrorism, smuggling of by identifying a number of threats, which includes: migrants by sea are only a few example of maritime 1) piracy and arms robbery; 2) terrorist act; 3) illicit insecurities which made the headlines over the last trafficking in arms and weapons of mass destruction; decade. These non-traditional maritime security issues 4) illicit trafficking in narcotics; 5) smuggling and are highly non-traditional in nature and challenge the trafficking of person by sea; 6) illegal, unreported and state structure in socio-economic development. unregulated fishing; and 7) intentional and unlawful In Mr. Pattiradjawane’s perspective, maritime security damage of marine environment. can be divided in, first, a matrix of its relation to other He also mentioned a number of conventional practices in context, such as: marine safety, sea power, blue economy maritime domain awareness. First, surveillance through and human resilience. Secondly, the securitization of radar and sharing information through databases. frameworks, where we can study how maritime threats Second, activities at sea, such as patrol, search and are met and which political claims is entailed in order inspection as well as exercise. Third, regarding the

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SPEAKERS’ PRESENTATION René Pattiradjawane law enforcement activity. And fourth, coordinating activity at different levels: meetings, conferences, harmonization of legal standard.

“The oceans are often taken for granted. No corporations control them, no military dominates them, and the oceans are essential for humans as they provide them with goods for economic and social needs.”

Towards the end of presentation, Mr. Pattiradjawane highlighted several issues to be considered by Southeast Asia. These issues are related to the maritime piracy, maritime terrorism, and the IUU that Indonesia has been trying to implement very harshly.

- René Pattiradjawane -

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SPEAKERS’ PRESENTATION First Admiral Yuli Dharmawanto

First Admiral Yuli Dharmawanto - Legal Director, Maritime Security Board, Republic of Indonesia

On behalf of the Maritime Security Board (or Bakamla) of the Republic of Indonesia, First Admiral Yuli Dharmawanto shared some of the agency’s experience in maritime law enforcement cooperation in the region. First Admiral Yuli Dharmawanto saw Southeast Asia as a very dynamic region because it is located between two great continents and two great oceans. Countries in the region not only share maritime boundaries but also maritime problems with each other. Some of the problems and threats that these countries are currently facing are: illegal fishing, smuggling of goods, oil drugs and wild life, human trafficking and people smuggling, piracy and armed robbery against ship, marine pollution, natural disaster and etc.

Guard Cooperation. Several countries have initiated their own form of cooperation on this matter. For example, Indonesia, Malaysia and Singapore has established a Trilateral Commanders Meeting. There is also the Gulf of Thailand Initiatives in which Thailand, Malaysia, Cambodia and Vietnam are the members. First Admiral Yuli Dharmawanto went to elaborate further by mentioning that an ASEAN Coast Guard Forum is in the process of establishment. Some of the purposes of the forum are: 1) to establish a cooperation mechanism among Coast Guard Agency in South East Asia; 2) to develop information sharing mechanism; and 3) to unite South East Asia Coast Guard Agency interest in a wider forum.

He further mentioned that under the ASEAN mechanism, maritime security has been arranged in some forms of cooperation, such as the ASEAN Maritime Forum (AMF) and Extended ASEAN Maritime Forum (EAMF), ASEAN Regional Forum on Maritime Security, and ASEAN Defense Ministerial Meeting (ADMM) on Maritime Security. However, First Admiral Yuli Dharmawanto emphasized that up to now, there is no specific ASEAN Forum for Coast

He claimed that ASEAN is struggling to establish the ASEAN Coast Guard Forum because of several challenges. First, there is an unfinished business over maritime boundary delimitation. Second, not all ASEAN countries have a Coast Guard Agency, such as Myanmar. Third, echoing the previous statement from Dr. Afriansyah, there is a lack of trust between countries. However, First Admiral Yuli Dharmawanto

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SPEAKERS’ PRESENTATION First Admiral Yuli Dharmawanto believed that there are also opportunities. All Coast Guard Agencies share a common interest on enhancing cooperation in the region in order to address common threats and issues of maritime security. First Admiral Yuli Dharmawanto considered that practical and operational cooperation are the best means to secure our maritime.

“ASEAN is struggling to establish the ASEAN Coast Guard Forum because of several challenges: unfinished business over maritime boundary delimitation; not all ASEAN countries have a Coast Guard Agency, such as Myanmar; and a lack of trust between countries.” - First Admiral Yuli Dharmawanto -

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SPEAKERS’ PRESENTATION H.E. Amb. Arif Havas Oegroseno no high seas in Southeast Asia. We do have organized crime in Illegal Unregulated Unreported Fishing (IUUF). Illegal means fishing in other countries’ jurisdiction or in a restricted areas. Unregulated means there is no regulation on that particular area, or using the wrong nets or vessels. Unreported means reporting a false number of fish or not reporting at all. IUUF per se is not necessarily organized crime. He highlighted a case in Brebes, North Java, whereby 15 fishermen were arrested by the police because they were conducting fishing in Palembang without the permit of the local government. In his view, this was an illegal act but it was not necessarily an organized crime. Amb. Oegroseno elaborated more on this subject. In the course IUUF activity, there are people who are actually organized, in more than one country, and they are violating many different laws. For instance, there is one group of people from different countries that decided to steal fish from Indonesian water. They get people from the black market and enslave these people as their crew. They bring some drugs as well and some weapons to sell. So, they enter Indonesian waters, violating multiple treaties and laws and stealing Indonesian fishes, enjoying the profit through money laundering. He highlighted the Benjina case as the real example. And all these different criminal activities are immune from persecution because we do not have enough instruments to get the ring, the group of people.

H.E. Amb. Arif Havas Oegroseno - Deputy Minister for Maritime Sovereignty, Ministry for Maritime Affairs Republic of Indonesia

As the last to speak, Amb. Oegroseno took a different approach in presenting the issue. He highlighted the growing myth about piracy in Southeast Asia. Based on Article 101 of UNCLOS 1982, he pointed out that piracy is defined as illegal acts of violence or detention for private ends, performed by crew of private shifts/ aircraft on high seas or outside jurisdiction of any state, directed against another ship/aircraft. Amb. Oegroseno emphasized on how specific this terminology is, in terms of the purpose, the target, the actor, and the location.

There are initiatives that have been done so far. He noted forums with other countries, coordinated-patrol, and occasionally inviting other countries’ Navy. Currently there is a coordinated-patrol in the Sulawesi Sea due to maritime terrorism, although again, it is quite problematic as whether we really have maritime terrorism or piracy. Amb. Oegroseno argued that they are two different things. Pirates run businesses for private ends. Terrorists do not run businesses; they just want to be noticed.

However, the International Maritime Bureau (IMB) Piracy Reporting Centre claimed that their definition of piracy included incident that did not just take place on the high seas. In fact it all happened in Indonesian waters. According to the report of an attack, in Semarang Anchorage, some people were coming and stealing engine spare parts. IMB classified this as a piracy and labeled Indonesia as a pirate-infested country. Amb. Oegroseno further emphasized that perception is very important because it dictates policy response. The IMB has clouded the marine domain awareness situation, and it will already increase insurance policies, and by the end of the day, someone benefits from it. So, a notion that Southeast Asia is pirate-infested has been created, and then they checked out the insurance.

“The reality is that there is no piracy under the UNCLOS definition in Southeast Asia, since there are no high seas in Southeast Asia.”

The reality is, he added, that there is no piracy under the UNCLOS definition in Southeast Asia, since there are

- H.E. Amb. Arif Havas Oegroseno 6

Q&A SESSION

Comment No.2 A few years back in Malacca, there is this Eyes in The Sky program with Singapore. What is the state of the program? There are also hijacking incidents and the rumor saying that this is syndicates. Is it also part of the myth? Comment No.3 What is the intention of the IMB in reporting the false piracy situation? How does the Indonesian government counter this report? And regarding the South China Sea, Indonesia claimed to have no interest. Please elaborate further on this. Amb. Oegroseno confirmed that yes; we have the Eyes in the Sky program. With regards to the hijacking, he also validated that it is more or less is true. The government has conducted investigation and the groups do exist in the region. Each of the role is performed by different nationals. For example, the operational is handled by Indonesians; meanwhile the finance is on the Singaporeans or Malaysians. This has been a problem, because the existing mechanism is not enough to get into the inner ring.

A. Ibrahim Almuttaqi - Head of the ASEAN Studies Program, The Habibie Center

Comment No.1 How effective is the ASEAN Convention on Counter-Terrorism with the effort of ASEAN countries to counter maritime terrorism, particularly in the Sulawesi Sea?

In response to the next comment, Amb. Oegroseno asserted that the IMB is an independent organization. The government has a more objective and comprehensive recap with clear clarification and definition. But as what had happened with the IMB, people have altered their own version of events. Meanwhile, according to Dr. Afriansyah, we need to make a counter-campaign and share the data to the public and firmly state that there’s no piracy in Indonesia.

Amb. Oegroseno believed that the latest incident indicates that the effort is not enough. In Somalia, there is no more fish, no law and order. That is why people go hijacking, although the number is decreasing. Similarly, in the Strait of Malacca, the number also went down. From these experiences, securing Sulawesi Sea requires effort.

Meanwhile, First Admiral Yuli Dharmawanto mentioned that piracy is still a Navy business. There is not yet any arrangement to enable coast guards cooperation. Bakamla is still discussing it.

Last, on the South China Sea issue, Amb. Oegroseno believed that many people are confused of which case is being debated. Some parties claim the rocks or the reefs or the features. The distributed maps among the 7

Q&A SESSION public are not helping either because they are not accurate. Media likes to play this confusion. Indonesia’s interest is simple: we do not claim anything. Echoing his previous statement, Dr. Afriansyah stated that there is no authoritative data on China’s claim. Although Indonesia is not a claimant state, we need to be firm of where we’re standing. The last remark from Mr. Pattiradjawane reassured that ASEAN needs to start their maritime diplomacy as it is in the interest of ASEAN. In response to the Eyes in the Sky program, he thought that it was too costly. It costs $28 million for one vessel. We have to keep in mind how much we have to spend in order to have ten of them. On the other side, Mr. Pattiradjawane added, coast guards patrol is a different idea because it’s the countries involved that can use the idea of economic sharing. The issue of this mechanism is that it’s probably too expensive for each country. --END--

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PROJECT SUPERVISOR: Rahimah Abdulrahim (Executive Director) Hadi Kuntjara (Deputy Director for Operations) HEAD OF ASEAN STUDIES PROGRAM: A. Ibrahim Almuttaqi RESEARCHERS: Fina Astriana Muhamad Arif Askabea Fadhilla FINANCE & ADMINISTRATION : Mila Oktaviani Layout and Design by Rahma ASEAN Studies Program - The Habibie Center The Habibie Center Building Jl. Kemang Selatan No.98, Jakarta 12560 Tel: 62 21 781 7211 Fax: 62 21 781 7212 Email: [email protected] www.habibiecenter.or.id www.thcasean.org facebook.com/habibiecenter

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