Carga y correo

Indonesia ratified the 1982 UNCLOS in Law No. 17 of 1985, and has since then issued a range of laws and regulations to implement the Convention including, Law No. 6 of 1996 concerning Indonesian Waters; Law No. 17 of 2008 concern- ing Shipping; and Law No. 31 of 2004 concerning Fisheries as amended by Law No. 45 of 2009.687 Prior to ratification of the 1982 UNCLOS, Indonesia enacted Law No.1 of 1973 concerning the Continental Shelf as the implementation of the 1958 Geneva Convention on the Continental Shelf and Law No. 5 of 1983 con- cerning Indonesian EEZ as part of long standing states practices in customary in- ternational law.

686 _{S.C. Res 1851, UN SCOR, above n 678, [4].}

687 _{Sari Aziz and Ranyta Yusran, 'Research Project on International Maritime Crimes Indonesia’s}

Country Report' (Centre for International Law, National University of Singapore (NUS), 12 January 2011).

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Indonesia has not enacted any legislation specifically implementing the UNCLOS provisions on piracy (articles 100-110). However, prior to ratification of UN- CLOS, Indonesia has had its own provisions on maritime crimes under its Crimi- nal Code Law (KUHP).688 Under the Chapter on ‘Maritime Crimes’ (Kejahatan

Pelayaran), the Indonesian Penal Code (KUHP) criminalizes ‘any person on

board an Indonesian ship who unlawfully seizes the ship’.689 Acts of piracy (pembajakan) are regulated by articles 438 – 441 of the KUHP and may be sum- marised as follows:690

1. The act of entering into service or serving as a sailor on a vessel, knowing that it is intended to be used or is used to commit acts of violence in the high sea against other vessels or against persons or property on board of such vessels, without being authorized by a belligerent state or without being a part of the navy of a recognized state.691

2. The act of entering into service as a member of the crew on board of such ves- sel, with the knowledge of the above aim or use or the act of voluntarily re- maining in service after obtaining this knowledge.692

3. Committing acts of violence against another vessel or against persons or property on board said vessel:

a. within Indonesian sea territory (Coastal Piracy);693

b. on shore, on or near the beach or the mouth of rivers, after wholly or par- tially crossing the sea for such aim (Beach Piracy);694

c. on a river using another vessel, after having arrived from somewhere on board a vessel used for that purpose (River Piracy); 695

A person shall be liable for the above offences if s/he: 1. commits such acts;

688_{Law No. 1 of 1946 concerning Indonesian Criminal Code or Kitab Undang-Undang Hukum Pidana/}

KUHP), as affirmed by Law No. 73 of 1958 and amended by Law No. 1 of 1960, Law No. 4 of 1976, and Law No. 27 of 1999.

689 _{Article 448 KUHP.}

690 _{The Centre for International Law (CIL) of the National University of Singapore conducted a work-}

shop on International Maritime Crimes on 17-18 January 2011. As part of the preparation for this workshop, it produced a number of country reports regarding the implementation of, among other things, UNCLOS, in each national law of ASEAN members. This thesis has drawn from some of the country reports to discuss the shortcomings of national laws on piracy of Indonesia, Malaysia, and Sin- gapore to deal with piracy in the Malacca Straits.

691 _{KUHP art 438 (1).} 692 _{KUHP art 438 (2).} 693 _{KUHP art 439 (1).} 694 KUHP art 440. 695 _{KUHP art 441.}

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2. enters into service or serves as commander or captain on board a vessel, knowing that it is aimed to be used or that it is used for the commission of such acts;696

3. enters into service or serves as a member of the crew on board a vessel, knowing that it is aimed to be used or that it is used for the commission of one of the acts, or who remains voluntarily in service on board such vessel af- ter having such knowledge;697

4. equips a vessel aimed to be used or is used to commit acts of violence in the open sea against other vessels or against persons or property on board of such vessels, either on his/her own or another person’s expenses, to commit one of the offences described in articles 439-441;698

5. directly or indirectly participates in the rental, freighting or insuring of ves- sel, either on his/her own or another person’s expense, knowing that the ves- sel is intended to be used to commit acts of violence in the open sea against other vessels or against persons or property on board of such vessels; or 699 6. deliberately surrenders an Indonesian vessel to sea-pirates, coast-pirates,

beach-pirates or river-pirates;700

The punishment for these offences varies from 10 to 15 years of imprisonment.701 However, if the acts of violence described in articles 438-441 result in the death of one of the persons on board the attacked vessel or of one of the assaulted per- sons, the skipper, commander or captain and those who have participated in the acts of violence may be punished by capital punishment, life imprisonment or a maximum temporary imprisonment of twenty years.702

It can be seen from the above list that the term ‘pembajakan’ under KUHP does not capture the definition of piracy under the UNCLOS, particularly because it lacks a ‘high seas’ element. KUHP also does not adopt the universal jurisdiction principle in dealing with piracy acts. As has been shown, this is a significant hin- derance in combating piracy.

The Indonesian constitution is silent on the relationship between international and domestic law. In a monist state, all laws are part of one system (monism), so that

696 _{KUHP art 442} 697 KUHP art 443. 698 _{KUHP art 445.} 699 _{KUHP art 446.} 700 _{KUHP art 447.} 701 KUHP art 438-447. 702 _{KUHP art 444.}

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international law is automatically part of all national systems.703 On the other hand, in a dualist state, international and domestic laws are separate entities (du- alism).704 Accordingly, international treaties can only operate in the domestic le- gal system of a dualist state once it has been incorporated into the legal system of the state.705 The incorporation can be achieved by, among other things, formal adoption through a parliamentary procedure. 706

The legislation concerning international treaties, Law No. 24 of 2000, indicates that Indonesia takes a ‘monist’ approach in regard to the relationship between in- ternational and national law.707 However, an examination of Indonesian practice shows inconsistency in state practice when it comes to treaty implementation. 708 As a result, it is unclear whether Indonesia adopts a ‘monist’ or ‘dualist’ ap- proach.

There are still debates amongst legal scholars in Indonesia on whether or not trea- ties can be directly enforced without having implementing legislation, and whether or not a judge is bound by a treaty that has not been translated into na- tional law. One leading Indonesian legal scholar, Hikmahanto Juwana, a well- known dualist, has argued that the transformation of international law into na- tional law is particularly important for law enforcement agencies since Indone-

703 _{About ReCAAP, Background Information (Regional Cooperation Agreement on Combating Piracy}

and Armed Robbery against Ships in Asia (ReCAAP) <http://www.recaap.org/AboutReCAAPISC.aspx>, 314.

704 _Ibid. 705 _{Ibid, 315.} 706 _Ibid. 707

According to the Law No. 24/2000, an instrument of ratification is needed for a treaty to be pub- lished in the state gazette in order to inform the public of Indonesia’s commitment to the treaty and that the treaty binds all citizens. This implies that the ratification of a treaty binds the state both externally and internally even without the existence of implementing legislation.

708

Interview with Dr. Melda Kamil, Director of the Centre for International Law Studies, Faculty of Law University of Indonesia, Jakarta, 6 August 2012. Indonesian practice on implementation of trea- ties has not been consistent. While some treaties (conventions) have been given force of law domesti- cally through the issuance of implementing legislation/regulations following ratification, others have not. For example the 1982 UN Convention on the Law of the Sea (UNCLOS) was ratified by Law No 17 of 1985 and was implemented by Law No 6 of 1996. By contrast, the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations were ratified through the enactment of Law No 1 of 1982 but this was not followed by any implementing legislation or regula- tions. See also, Gillian Goh, 'The ‘ASEAN Way’ Non-Intervention and ASEAN’s Role in Conflict Management' ( 2003) 3(1) Stanford Journal of East Asian Affairs 113 18.

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sian police, judges and prosecutors usually rely only on national law, and do not take treaties or international obligations into account.709