Legal Protection For Indonesian Fishery Products In International Trade

Abstract

International trade principally aims to exploit the market, have a little concern about protecting the environment. Only after entering the new era of international trade, the Indonesian government then finds the challenge in controlling the trade’s speed and market since the everything is regulated under a specific international trade regulation that is not entirely concern with protecting national interests. Many Indonesian popular products could not compete internationally, since they tend to fail in fulfilling the international standards of exported goods. This will inevitably hinder the national economy, more specifically in gaining foreign investments. One example of the challenges posed by regulation that interfere with the economic growth in the context of international trade is the way environment regulation dampens the effort to export the Indonesian fishery products. The primary problem is that even though Indonesian domestic regulation has put some sort of legal protection for Indonesian fishery products, they still fail to fulfil the environmental standard set by some export-destination countries, such as the United States of America and the European Union. Against this backdrop, this research aims to analyze the application of domestic regulation on fishery in Indonesia. We are using the socio-legal approach to understand the way the domestic regulation has failed to fulfill its legal aim, which is to implement the act of law related to fishery, environment, and quality standards to fit the market’s demand, as well as to improve the environment surrounding the fishery industry according to the Code of Conduct for Responsible Fisheries.

Keywords: Legal ProtectionEnvironmentFree TradingFishery

Introduction

The relationship between free trading and environment is one of the results agreed upon in the World Summit on Sustainable Development ([WSSD], 2002). It is further redefined by Perrez (2003) who stated that “the agreement includes two things; first, strengthening the aspect of mutual support in trading, environment and the development to realize sustainable development. Second, fostering the mutual support between the system of multilateral trading and the multilateral environment agreement, along with the target of sustainable development”. However, there is a difference of interests between the Developed Countries and the Developing Countries in maintaining the environmental issue in terms of International Trading. Birnie and Boyle (1994) have expressed the following view:

“Whereas many Western states, including the European Community, now support further environmental controls, developing states accord priority to development and have made in clear in the UNCED Preparatory Commission that they are not prepare to accept further environment control, without such financial assistance and transfer of technology as is necessary to offset the economic restrictions otherwise involved”.

According to Birnie and Boyle (1994), there is no common perception regarding the economic interest in international community, especially about the importance of environmental protection. Developing countries emphasize more on the development so that they could catch up and fill their gap compared to what the developed countries have, while the developed countries are more concern with providing supports for global environmental protection. Carraro (1994) also asserted that there are some concerns that the developing countries tend to produce and export the goods that could cause the environmental damage, such as the extinction of tropical rain forests or the combustion of minerals that causes greenhouse gases. Hence, the developed countries have demanded the developing countries to pay more attention to the environmental issue in their development projects. According to Rajagukguk and Khairandy (2001), this demand is manifested through the regulation of international trading agreement that stated at least two objectives, namely to terminate the tendency of the businessmen in the developing countries to pollute the environment and to make sure that the exported goods sent to the developed countries are free from harmful contamination.

In fact, there is a tendency that the developed countries use environmental issue to hamper the goods and services to come from some developing countries. On this issue, Trebilcock and Howse (2005) expressed the following view:

“The effort to protect citizens from the hazards of everyday life has become a virtual minefield for trade policy-maker, as such differences can often the manipulated or exploited to protect domestic industry from international competition. Even where there is no protectionist intense on the part of lawmakers, through a lack of coordination, mere differences in regulatory or standard-setting regimes can function to impede trade”.

In this situation, environmental issue in part has turned into an economic tool to pressure some developing countries instead of solely aims to protect the environment. This gives the developed countries some leeway to dodge from a real commitment to protect the global environment on the pretext of protecting national economic interests. The departure of the United States from Global Climate Change agreement is one of the examples of how a developed country can decide to put the national economic interest above a global environmental policy (Fish, 2002).

Kartadjoemena (1996) defined that Indonesia as a developing country depends on export as one of its main source of economic growth. Considering the geographical condition of Indonesia as an archipelago where two thirds of its area is covered by oceans, including coasts, high seas, and bays, the fishery industry is one of the national strong economic points. Hence, the problem posed by the failure of Indonesian fishery products to enter the global market is potentially harmful for the national economy.

According to the data released by the Indonesian Quarantine and Inspection Agency of the Ministry of Marine Affairs and Fisheries (Badan Karantina Ikan, Pengendalian Mutu dan Keamanan Hasil Perikanan Kementrian Kelautan dan Perikanan) in 2016, the potential of fish catching is nearing 6.4 million tons/ year. Indonesia has exported around 83,516 tons of dead fishery products throughout March 2017, while the total volume of exported products of live fishery from Indonesia is as much as 510,006,523 tons ([KKP], 2017).

As informed by Dahuri (2002), along with the improvement of the national production capacity and the intensity of international trade, Indonesian exporting efforts have been significantly improved. The current challenge, however, is non-tariff and taking a form of environmental issue. One of the examples is the case of when Singapore rejected fish products from Indonesia in 2006, claimed that the fishes have been contaminated. Similarly, they rejected shrimp paste from Indonesia with the basis of accusation that the shrimp-catching method is harmful and contributed in killing the sea turtles. The United States of America also rejected tuna fish from North Sulawesi in, claimed that the tuna fishery industry in that area has contributed in spreading the mercurial waste along the Buyat Bay.

The data of the Ministry of Commerce (Departemen Perdagangan) per November 2016 shows that more than 50% of Indonesian fishery products is marketed to the USA, Japan, China, Singapore, Malaysia, and the European Union. Coincidentally, those countries are very strict in their environmental policy ([DepDag], 2017). This huge market share puts Indonesia under pressure to adapt into a higher level of environment-friendly criteria. This also indicates a huge expectation set by the global environmental policy for Indonesia to improve its exporting performance.

Problem Statement

In brief, there are several reasons to do a research in the legal protection of Indonesian fishery products in relation to the global environment policy within the international trade. Firstly, fishery products constitute top commodity that provide Indonesia with foreign exchange, thus, if such commodity encounters some exporting challenge, the national economy growth would be significantly interrupted. Secondly, fishery export products are vulnerable to environmental problems since the products are considered as Natural Resources. Thirdly, most of Indonesian fishery products are marketed to developed countries whose consumers are considered highly aware of various environmental issues. Fourthly, Indonesian legal products are ready to address the implementation of legal protection towards the fishery products in regard to the environmental issues in international trade.

Research Questions

This research intends to answer the following questions:

• What should we do to overcome the practice of abusing the environmental protection in international trade?

• How do we implement legal protection to Indonesian fishery products in relation to the environmental protection in international trade? What are the steps that need to be taken by the Indonesian government in addressing this issue?

Purpose of the Study

Here are a couple of objectives that we want to achieve:

• To study the ways to overcome the environmental protection abuse in international trade.

• To study and explain the implementation of legal protection to Indonesian fishery products and the efforts that need to be taken by Indonesia to improve the exporting performance of fishery products to meet international standards.

Research Methods

This research mainly employs a non-doctrinal approach in socio-legal issue. According to Wignjosoebroto (2002), non-doctrinal method was used by the science of law to study real social factors. Such approach did not just end at law as legal act. Rather, it views law as a concept that lives within a community. Samekto (2011) defines the socio-legal research as a research that combines sciences, skills, and experiences of two or more disciplines to answer the legal questions

Irianto (2009) stated that such interdisciplinary method may explain vast legal phenomena, such as power relation in the context of social, cultural, and economy that do not see law as social symptoms. By using analytical and qualitative descriptive method, this research implements the analysis to describe; which is to analyse and to present the facts systematically so that it is easier to understand and to conclude (Santana, 2007). Here, we take a holistic approach in understanding the available data with deep understanding of the issue.

Findings

Conclusion

The current implementation of legal protection to Indonesian fishery products does not work effectively. There are at least three issues behind this ineffectiveness: there is a problem in the rules’ substance, there is an authority disorder within the governmental body, and the legal culture surrounding the industry that is highly influenced by personal economy consideration and lack of proper incentive. In brief, the existing legal implementation is in contrast with the International rules. To better the exporting performance related to fishery products, Indonesia implements several adjustments such as putting environmental and standard quality requirements into the existing legal acts to respond to the market’s demand. Other than that, Indonesian Government has established international cooperation initiatives to improve the market’s access for fishery products through Memorandum of Understanding (MoU), Mutual Recognition Arrangement (MRA), and participations in international organizations and conventions.

In addressing the issue of negative effects from the environmental requirement for Indonesian fishery products in international trade, Indonesia has no choice but to follow the quality standard set by the developed countries. Therefore, the change of paradigm is needed from the command-and-control approach to smart regulation, in which one of its clauses introduces the importance of economic incentive.

On one hand, smart regulation is a better solution compared to the command-and-control approach for many reasons. One of the reasons is related to the extensive geography of Indonesian sea that does not match the number of state apparatus who are in charge to command and control the area. Not to mention, most of these officers are hesitant in implementing the rule without proper incentives. On the other hand, the option of designing and implementing a smart regulation might encounter certain challenges. Especially in preparing the third party to work properly as quasi regulator and to prepare the government to face a possible outcome, namely public participation in the form of public pressure to protect the environment. Public pressure is enabled by the advancement of information technologies and the raising public awareness of the global warming threats, hence the public may seek to actively participate in supervising the effort to protect the environment. It is worth to note that smart regulation does not reduce the role of government in enforcing public policies. It also does not cancel out sanction for the violators, but rather it adds a factor that encourage a regulation restructuring through the use of economic incentive.

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