Safeguarding Maritime Rights: The Legal and Environmental Implications of Unregulated Sea Fence Construction in Indonesia

By : Setyawati Fitri Anggraeni, Orima Melati Davey, Christou Imanuel, Alicia Daphne Anugerah

Ocean Maritime Climate Research Group – Anggraeni and Partners

Introduction

In the regime of maritime law, states are granted sovereign rights and sovereignty over their maritime territories. Indonesia, as a maritime nation with its seas covering two-thirds of its total area, is rightly expected to manage and utilize the sea for the benefit and welfare of its people. Referring to the Constitution of the Republic of Indonesia Year 1945, water as a natural resource must be managed as a source of public welfare. The installation of a “sea fence” on the coast of Tangerang is not only related to the socio-economic sector of the surrounding community but also concerns how the legal framework in Indonesia can protect natural resources that should benefit the entire welfare of the people. According to several news articles, the perpetrator of the “sea fence” installation is still unknown.

Legal Framework and Permits

The utilization of maritime space requires permits that must be fulfilled beforehand. This permit is known as the KKPRL compliance. This permit is based on Article 113 of the Minister of Marine Affairs and Fisheries Regulation No. 28 of 2021 (Permen KKP 28/2021). The permit exists to regulate the use of maritime space so that it is in accordance with its designation and does not damage the environment beyond safe limits. All use of maritime space must first obtain a KKPRL permit. Without this permit, activities and use of maritime space become illegal.

Relevance of Illegal Sea Fence Construction to Environmental Pollution

Violations in the marine environmental sector intersect with the sustainability of marine biodiversity, which is closely related to the quality of its ecosystem. One of the consequences of the illegal sea fence installation is the disruption of the marine ecosystem balance. Therefore, violations from the environmental aspect are regulated in regulations both according to UNCLOS 1982 and Indonesian regulations. As a member state of UNCLOS, Indonesia is committed to implementing UNCLOS rules. Article 192 of UNCLOS regulates the obligation of states to protect and preserve the marine environment. Then, Article 194 requires states to control marine pollution from various sources, including land-based activities, in accordance with Article 207. Additionally, Articles 204-206 require states to monitor the impact of activities on the marine environment and conduct environmental impact assessments. Furthermore, Articles 213-222 regulate the obligation of states to implement and enforce national and international laws to ensure effective marine protection. Based on the provisions of UNCLOS, it is clear that Indonesia must assert environmental violations, particularly pollution resulting from the sea fence in Tangerang. This aligns with Article 21 of Law No. 6 of 1996 concerning Indonesian Waters, which states that the utilization of water areas must be based on national interests, including environmental and economic interests of the surrounding community.

More specifically from an environmental perspective, firstly, the reason why the act of constructing the fence is considered pollution is based on Article 1 point 14 of Law No. 32 of 2009 concerning Environmental Protection and Management (UUPPLH). This article stipulates that environmental pollution is the entry or inclusion of living organisms, substances, energy, and marine components into the environment by human activities, exceeding the established environmental quality standards. Furthermore, the construction of the sea fence also violates the provisions of Article 69 Paragraph (1), which stipulates that everyone is prohibited from committing acts that cause pollution and/or environmental destruction. Regarding impact analysis, Article 36 stipulates that the environment requires that every activity with significant environmental impact must have an Environmental Impact Analysis (AMDAL).

The Sea Fence Clearly Violates the Essence of Justice in Resource Management: Impact on Fishermen’s Access to Fisheries

Referring to the provisions of Permen KKP 28/2021, the granting of KKPRL permits must consider the interests of the community and traditional fishermen, marine biota, and coastal ecosystems. These provisions are not made without concrete reasons; they are designed to create justice and balance between the utilization of maritime space and fishermen’s activities, as well as the safety of coastal ecosystems. The construction of an unlicensed sea fence appears to be a claim by parties violating legal provisions to gain personal benefits from the fenced coastal area. The limitation of fishing access for fishermen due to the construction of this sea fence clearly violates the philosophy of water resource management, which is to provide the greatest prosperity for all people.

Government Follow-Up: What Actions Has the Government Taken?

The Indonesian Ministry of Marine Affairs and Fisheries (KKP), through the Directorate General of Marine and Fisheries Resources Surveillance (PSDKP), has sealed the discovered sea fence. The KKP stated that it needs time to further investigate the owner of the fence, as there is no clear information regarding the identity of the company or party responsible. After the sealing, the KKP has given a 20-day period for the owner of the fence to come forward to the KKP. If within this period no one claims ownership of the sea fence, the government will take the final step, which is to dismantle it.

Conclusion

From the discussion above, we can see how the sea fence disrupts many aspects of life, from fishing activities to environmental aspects. Several regulations have been violated with the construction of the sea fence. Regulations related to environmental protection, providing access to fishermen, and regulations regarding the licensing of maritime space utilization have been breached. Such violations have naturally prompted the government to take action to regulate its construction. Measures such as warnings and a 20-day period for acknowledging ownership of the fence have been implemented. It is hoped that the owner of the fence will take responsibility and dismantle the violating fence. This incident underscores the importance of law enforcement and supervision over the use of Indonesia’s maritime areas, considering the impact of indiscriminate utilization on many aspects of community life.

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