Remodelling Indonesia's Maritime Law Enforcement Architecture: Theoretical and Policy Considerations.

• Author: Laksmana, Evan A.

Why does Indonesia, the world's largest archipelagic state at the cross-roads between the Indian and Pacific Oceans, punch below its weight in regional maritime affairs? Part of the answer lies in Indonesia's chaotic maritime governance. There are at least a dozen agencies and institutions tasked with maritime governance; half of them have law enforcement mandates, and at least three are tasked with patrolling the country's Exclusive Economic Zone (EEZ). Some believe that such a "power sharing" model is necessary because, on the one hand, each of these agencies, operating alone, could not safeguard the country's vast waters. On the other hand, the overlapping authorities have hindered an effective, timely and consistent response to Indonesia's multitude of maritime security threats. (1) While many have analysed the reasons and implications for Indonesia's chaotic maritime governance, there are few studies that examine its potential solutions. (2)

This article seeks to address the above puzzle by explaining why and how Indonesia should remodel its maritime governance structure. First, I develop an analytical framework to understand maritime law enforcement models and examine the experiences of several Asian maritime states in governing their maritime spaces. The framework posits a strong correlation between the number of agencies tasked with maritime law enforcement and the available resources to execute the necessary operations to handle maritime security threats. I propose three models based on the experiences of Asian maritime states: (1) unified force, where all maritime assets are centralized under a single agency; (2) unified command, where maritime assets from different agencies are temporarily assigned under a joint operational command; and (3) division of labour, where there are multiple agencies with their own assets, authorities and operational tasks. While each model has its own advantages and drawbacks, this article argues that states should ideally move away from the division of labour model to a unified command or unified force model.

Second, I argue that Indonesia should strive to develop and adopt a "dual agency" architecture, whereby only the Indonesian Navy (TNI-AL) and the Indonesian Maritime Security Agency (BAKAMLA) have law enforcement authority over Indonesia's EEZ. There are different ways to implement this model, but many of them require policymakers to wage "top-down" political and legal battles to reconcile the overlapping laws and regulations. In the meantime, they should invest in "bottom-up" approaches, such as conducting joint education programmes, training activities and exercises involving the different maritime agencies. These approaches could help Indonesia address its daily maritime security challenges, even if in incremental steps. But more importantly, Indonesia needs to significantly empower BAKAMLA, which includes expanding its budget base, doubling its manpower and patrol assets as well as cementing its status as the one and only coast guard agency. Without a significantly empowered BAKAMLA, a sustainable dual agency architecture is unlikely to materialize.

The article is composed of four sections. The first section provides theoretical insights from the maritime security literature to illustrate the different architectures of maritime law enforcement in Asia. This discussion allows us to situate Indonesia's maritime law enforcement architecture in a comparative perspective and identify the model that Jakarta should adopt. The second section describes the institutional challenges surrounding Indonesia's maritime security and law enforcement policies. It focuses on the key challenges associated with Indonesia's "division of labour" maritime law enforcement model. The third section builds on the previous two and offers policy recommendations for Indonesian maritime policymakers to consider, especially regarding the potential adoption of a dual agency architecture. The final section summarizes the analyses and discusses the broader limitations and implications of this study.

Modelling Maritime Governance and Law Enforcement

Conceptualizing Maritime Law Enforcement

Maritime governance is a broad term that covers the different ways in which state policies and institutions govern the maritime domain. Some analysts, for example, understand maritime governance in terms of the overarching structures and relationships that direct, control and influence the shipping and ports sector, which would include all aspects of the industry and the functioning of maritime policymaking. (3) Others consider maritime governance to be an overarching policy that presupposes several additional functions, such as maritime domain awareness, maritime security and safety, law and customs enforcement, natural resource protection, search and rescue, and humanitarian assistance and disaster relief. (4) Given these different domains, scholars suggest that ensuring good maritime governance requires a comprehensive national maritime policy and legal-political framework as well as the organization and coordination of all maritime agencies. In other words, maritime governance should be a multi-domain, multi-dimensional field requiring a whole-of-government approach. (5)

However, not every maritime state has the wherewithal to develop a national maritime policy. Some states consider the process of developing such frameworks to be too cumbersome or politically contentious, especially in cases where different maritime agencies have cultivated strong domestic political constituents. Furthermore, there are always the intellectual dead-ends when attempting to define and operationalize an ever-expanding policy domain such as maritime governance. At some point, asking multiple agencies to commit to a single policy framework that takes away some of their authority is highly challenging. In addition, even if political leaders are willing to push through the bureaucratic hurdles and resource constraints, it is not clear which policy domain should be addressed first. Should policymakers begin with a top-down, "big bang" approach, fundamentally changing the entire maritime policy ecosystem in one fell swoop, or should they start by taking a gradual, bottom-up approach by improving the "coordination" between the different agencies? This question sits at the heart of maritime governance reforms common among many states with vast expanses of water under their jurisdiction but with little resources to do so.

Different maritime states also face different immediate and strategic challenges in and from their waters. This is perhaps why states often traditionally handle maritime governance on a sector-by-sector and not on a whole-of-government basis. Analysts attribute this to the greater abundance of maritime resources--creating the incentives for different agencies to control them--and the lack of major traditional security threats, which allow states to be more "relaxed" in their maritime governance. (6) However, maritime resource depletion, pollution, biodiversity loss and climate change--not to mention the growing tensions around disputed waters--have forced policymakers to formulate and implement a more integrated maritime governance framework. (7)

This article argues that archipelagic states with under-developed and sub-optimal maritime governance systems such as Indonesia should begin with enhancing maritime law enforcement within their EEZs. (8) "Sea-blindness"--where maritime states vastly under-rate the importance of the maritime domain or postpone measures to protect their maritime interests--is often one of the symptoms of such an under-developed governance system. (9) Admittedly, maritime law enforcement is only one element of maritime security, which in turn is only one of the many elements of maritime governance. Reforming maritime law enforcement systems may thus seem limited when placed within the broader maritime policy landscape. However, reforming maritime law enforcement architectures could have strategic spill-over effects. Developing an effective system to safeguard maritime resources could allow states to generate more economic benefits, address a wider range of operational threats, and respond to broader challenges such as grey-zone operations. Ensuring that maritime law enforcement architectures are efficient and effective also improves other aspects of maritime governance such as port management. Maritime law enforcement is thus a strategic multiplier and facilitator of maritime governance in general and maritime security in particular.

However, taking the analytical abstraction ladder down from maritime governance to maritime law enforcement does not make our task ahead easier. For one, the maritime law enforcement architecture comprises of many actors--from coast guards to navies and fisheries agencies--with overlapping authorities over cross-cutting problems. The different maritime jurisdictions--from internal waters to the EEZs and beyond--also raise different law enforcement challenges based on the variations in domestic regulations as well as capabilities. Additionally, many maritime states lack the necessary resources to maintain a well-funded single agency that could assume responsibility for all aspects of maritime law enforcement, including frequently patrolling the extent of the country's jurisdictional waters. In that case the existence of different maritime agencies might be a functional necessity to share the burden.

Traditionally, most, if not all, maritime security and law enforcement problems were under the purview of navies as the maritime domain was seen as a possible source of interstate conflict. (10) However, coast guards have recently become important maritime law enforcement actors with the enactment of the United Nations Convention on the Law of the Sea (UNCLOS) and the growth of maritime-based and sea-borne security challenges. Given their civilian nature...