A Quest for Meaning: Interpretation of Article 73(3) of the Law of the Sea Convention by Indonesian Supreme Court

Abstract

In the spirit of conserving the balance between the interests of the coastal State and other States in the exclusive economic zone (eez), Article 73(3) of the United Nations Convention for the Law of the Sea (unclos) establishes that coastal State penalties for violations of fisheries laws and regulations may not include imprisonment or corporal punishment unless otherwise agreed by the States concerned. As one of the countries suffering from illegal fishing, Indonesia has seen a number of domestic cases challenging the practical application of Article 73(3) due to the failure of several offenders to pay monetary penalties for violating fisheries laws and regulations in Indonesia’s eez. Article 73(3) appears to be the only unclos provision that Indonesian courts have directly applied and interpreted into domestic cases. The debate revolves around whether courts can impose default confinement for fisheries offences in the eez. This article examines how Indonesian courts interpret the meaning and scope of the term ‘imprisonment’ within the ambit of Article 73(3) of unclos, particularly in the context of confinement for fine defaults, and whether international courts or tribunals provide any guidance in this interpretation.