Principles of Good Governance in Marine Area Management

Principles of Good Governance in Marine Area Management

Sherlock Halmes Lekipiouw, SH, MH

 

 

1. PRELIMINARY

In the provisions of Article 25A of the 1945 Constitution of the Republic of Indonesia, it is stated that

"The Unitary State of the Republic of Indonesia is an archipelagic state with the characteristics of the archipelago, with territories whose boundaries and rights are determined by law.".

The concept of State Territory adopted into the concept of Article 25A of the 1945 Constitution of the Republic of Indonesia can be understood as having two main elements, namely the first is the affirmation of "The Principle of an Archipelagic State" and secondly about "Characteristics of the Archipelago".

Against the First, it can be seen that The Principle of an Archipelagic State has given birth to the concept of the archipelagic outlook, where the sea is no longer a separator but a unifier of the Indonesian nation and is considered as the sovereign territory of the Unitary State of the Republic of Indonesia.  

Likewise with those who Secondly, about Characteristics of the Archipelago describes the existence of a series of islands and the waters and sea areas between the islands, including all contents contained in the water, on land, and in the air above them[1]. in this sense, according to Jacob Rais[2], namely:

"that the Indonesian archipelago's maritime territory is no longer a separator, but rather a unifying tool for the Indonesian nation and has a very significant meaning and function and is treated as the absolute sovereign territory of the Unitary State of the Republic of Indonesia."

Further regulations regarding the Sovereign Territory of the Unitary State of the Republic of Indonesia as mentioned above are regulated in Law Number 43 of 2008.[3]. In the provisions of Article 1 number 1, it is stated that:

The territory of the Unitary State of the Republic of Indonesia, hereinafter referred to as the state territory, is an element of the state which is a unified land area, inland waters, archipelagic waters, and territorial seas along with the seabed and land beneath it, as well as the air space above it, including all the wealth contained therein.

Meanwhile, the scope of the territory of the Unitary State of the Republic of Indonesia includes land areas, water areas, seabed and the land beneath them, as well as the air space above them, including all natural resources contained therein.[4].

Apart from that, Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia also stipulates that "The earth and water and the natural resources contained therein are controlled by the state and used for the greatest prosperity of the people" 

Meaning in the phrase "controlled by the state" is interpreted as part of the regulatory function (regelendaad) and the function of the state as a manager (beheersdaad) as part of the state's responsibility. The administration referred to is the state's (government's) authority to issue and revoke licensing facilities (permit), license (dismissal), and concessions (concession). This function is also conceptualized as a state responsibility alone, but also as part of the fulfillment of human rights. 

In the perspective of the concept of human rights, in terms of the relationship between the state and its citizens, the people are positioned as holders of rights. (right holder), while on the other hand the state is in a position to bear obligations (duty holder), where the basic obligation of the state is to protect and guarantee the basic rights of its citizens (the people) as guaranteed by the constitution (basic law).

Apart from that, the formulation of the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia does not only include the Right to Control the State[5] However, it also includes the state's responsibility to manage the country's territory (including sea and coastal areas) along with all the natural resources contained therein to be used for the greatest prosperity of the people as referred to in the Preamble to the 1945 Constitution of the Republic of Indonesia.[6].

Responsibility in managing marine areas includes 2 (two) important things, namely firstly,, external factors, namely arranging maritime boundaries with neighboring countries in accordance with applicable international provisions, and second, internal factors, namely managing marine areas, especially the boundaries of marine land allocation as a regulation of marine land use that accommodates all interests while still prioritizing the principles of national unity.[7]

The two factors above are fundamental consequences of Indonesia's existence as an archipelagic nation. Therefore, marine management is intended to utilize the value and benefits of marine and coastal resources for the sustainable development of the national territory and to ensure the broader public interest.public interest).

Based on the above description, we can see that the external determination and arrangement of maritime boundaries for Indonesia will have legal consequences for other countries to respect the rights and sovereignty of the Unitary State of the Republic of Indonesia. Internally, however, the concept of regulating the boundaries of marine resource utilization and management is based on the limits of authority as stipulated in laws and regulations.

In its development, the management of marine areas has not received clear regulations and is still sectoral in nature.[8], thus giving rise to differences in interpretation and understanding of the authority to manage marine areas in relation to the national spatial planning system. One of the reasons for this ambiguity is of course the regulation of government authority (bestuursbevoegheid) in marine area management.  

Authority itself is defined within the concept of public law, thus establishing authority as the basis for managing marine areas. This means that the acquisition and use of authority in marine area management (including regarding the regulation of marine spatial planning) can be carried out if the government has the authority to do so, based on statutory provisions.

As said by Philipus M. Hadjon[9] that In the concept of public law, authority is a core concept in constitutional law and administrative law. In constitutional law, authority (bevoegheid) is described as legal power (rechtsmacht). So, in the concept of public law, authority is related to power..

As a public law concept, authority consists of at least three components, namely:

1. Influence components;
2. Basic components of law; and
3. Components of legal conformity.

It is further explained that the components influence is that the use of authority is intended to control the behavior of legal subjects. Components legal basis, that the authority must always be able to be designated as having a legal basis and components legal conformity, contains the meaning of the existence of authority standards, namely general standards (all types of authority) and special standards (for certain types of authority) [10]

Regarding public authority, in the concept of administrative law there are also three types of use of public authority, namely: authority arrange, controland imposition of sanctions or law enforcement.[11] It is further explained that: [12]

Authority to regulate related to the burden placed on society to maintain order. The authority to regulate can be exercised through laws in the formal sense (legislation), or through the creation of general rules based on delegated authority (regulation). Authority to control done by creating boundaries (restrictions) certain in society. The authority to grant sanctions is essentially the imposition or deprivation of human rights. In the concept of public law, deprivation of human rights can only be carried out by law. Sanctions are coercive tools necessary to exercise the authority to regulate and control so that the rules are obeyed. Sanctions can also be said to be law enforcement tools in the provisions containing prohibition or obligation.

As explained previously, one of the reasons for this ambiguity is of course the regulation of government authority (bestuursbevoegheid) in managing marine areas. The lack of clarity in these regulations will also result in the absence of regulations regarding marine spatial planning.  

If you look closely, in Law Number 26 of 2007[13], was not found explicitly or implicitly regarding the management of marine areas, especially regarding the regulation of marine spatial planning. This is reflected in the formulation of Article 6 paragraph (5) of Law Number 26 of 2007, which states that in its management "sea ​​space" is regulated by separate laws.

Such regulations are substantively contrary to the spatial planning regulation pattern itself as a single unit which is carried out in a hierarchical and complementary manner as intended in the provisions of Article 6 paragraph (2) of Law Number 26 of 2007.[14]

These provisions require synergy in the spatial planning process covering land, sea and air areas so that they will synergize with each other to avoid overlapping authority in the implementation of spatial planning itself.  

In reviewing the importance of regulations regarding marine area management in the context of marine spatial planning, we need to pay attention to the opinion as expressed by Dina Sunyowati[15], which states that:

"... although in actual terms the arrangement of sea and air space is almost never carried out, the inclusion of these two spaces in the law is necessary, because geopolitically the three are a geographical entity that cannot be separated and is related to the sovereignty of the state."

From the opinion above, it can be understood that the spatial planning process should not only regulate land space alone but should also include sea space and air space as a complete unit that cannot be separated from each other because this also concerns the sovereignty of the state.

However, there is no explicit or implicit finding regarding regulations regarding the management of marine areas, especially regarding the concept of marine area management, including regulations regarding authority, as well as efforts made by stakeholders in this case the government (central and regional) and other stakeholders in the utilization of space in marine areas.

Such regulations are very important as an effort to provide a legal basis for development in the maritime sector carried out by various related sectors as well as adjustments to the provisions contained in laws and regulations (both those directly or indirectly related to the management of marine areas that complement and integrate each other and avoid overlapping authority).[16] and conflict of interest[17].

Developments regarding maritime areas continue to cause ambiguity in their regulation. This has given rise to conflicts and contradictions in the management and utilization of these areas, including conflicting norms within various laws and regulations governing maritime management, which are largely divided into individual sectors (areas). However, unclear boundaries of legal principles will impact legal certainty (legality).[18]

Legal rules (legal norms) in this case is interpreted as the content of legal regulations (legal regulations).[19] Fill in the rules (internal norms) is the totality of the characteristics (elements) that embody the rule, while the scope of the rule (norm omvang) is the area of ​​application (toepassingsgebied) the relevant rule. It is further explained that there are two arguments, namely:[20]

1. The content of the rules determines the area of ​​application
2. The content of the rules is inversely proportional to the area of ​​application.

Meanwhile, regarding "legal certainty" we need to pay attention to the opinion as expressed by Tatiek Sri Djatmiati,[21] namely that:

"Legal certainty (rechtszekerheid) is more firmly stated in the words reele rechtszekerheid (real legal certainty). What is meant by real legal certainty is not only het juridische rechtszekerheid begrip (the concept of legal certainty), but more than that includes, (i) The existence of consistent and applicable legal rules, which are implemented by the state; (ii) Government officials apply these legal rules consistently and adhere to them; (iii) The majority of the people basically conform to these rules; (iv) Independent and impartial judges consistently apply these legal rules; and (v) Judges' decisions are implemented in real terms."

From the elements above, it appears that in the legal concept, legal certainty contains two main components, namely, consistent rule of law made by the state and consistent application of the law[22].

Based on the above description, it is clear that there is a conflict in the content of legal regulations related to the management of maritime areas. According to the two propositions above, the fewer characteristics (elements) a legal rule contains, the larger its scope of application. Conversely, the more characteristics (elements) a legal rule contains, the smaller its scope of application.[23]

From this description, it appears that the main element related to conflicting rules is the need for consistent legal rules and their consistent application. Inconsistent legal rules and their application will affect the guarantee of legal certainty (legality), while guarantees of legal certainty are needed in the management of marine areas in order to minimize the potential for conflict and clashes of interests from various stakeholders in the management of marine areas.

In the context of managing marine areas, there is a need for clear and firm legal regulations for spatial planning in marine areas, considering that this has an impact on the use of government authority (central and regional) in regulating the spatial planning of the area itself.[24].

As previously stated, the management of marine areas is intended to be able to utilize the value and benefits of marine and coastal resources for the sustainable development of the national territory in the implementation of government functions (public services) and to guarantee the general public interest (public interest).

In the study of administrative law, the concept of public service (public service), according to Tatiek Sri Djatmiati[25] is:

"The public service was an activity of the state (later extended to local government and public corporations) in brave public service is a legal structure by which a need of public interest is satisfied"

It is further explained that there are 4 (four) important elements in public services, namely:[26]

1. the purpose for which an activity is under taken (the public interest)
2. the institution which decides it of to be taken (the state or another public body)
3. the mechanism by which this under taken (the use of public power, la puissance publique, or contract)
4. and those who are involved in providing the service (the civil service, la fuction publique, or private person)

Meanwhile, regarding the implementation of government functions, this is closely related to concepts Good governance.  Philipus M. Hadjon[27], stated that from a legal perspective, administration is related to the activity of implementing functions to organize public interests. 

E. Utrecht[28] states that the implementation of public interests by the state can be carried out through several actions, namely:

"self-administration of the state; legal subject (legal entity) lain which is not included in state administration and which has a special relationship or a normal relationship with the government, whether regulated by public or private law, such as foreign investment; other legal subjects which are not included in state administration and which organize profession based on a concession (concession) or based on a permission (permit) given by the government; other legal subjects who are not included in state administration and who are given subsidy government, such as private schools; the government together with other legal subjects (several legal subjects) which are not included in state administration and both parties are combined in the form of cooperation certain things regulated in private law or placing supervisory staff; foundations established or supervised by the government; cooperatives established or supervised by the government; state-owned companies; legal subjects others who are not included in state administration but are given government powers (delegation legislation).

In another part of his writing, Philipus M. Hadjon[29] stated that:

"Good Governance is concerned with the implementation of basic government duties, namely (1) to guarantee the security of all persons and society itself; (2) to manage an effective framework for the public sector, the private sector and civil society; and (3) to promote economic, social and other aims in accordance with the wishes of the population.

Starting from the opinion above, the concept regarding good governance become an important part that can be used as a basis for formulating principles related to the management of marine areas. The meaning of principle in English is  principle (plural: principles) The principles referred to here relate to tote and ratio or philosophy. Principles or ratios are not "legal principles" (legal beginning) [30]With this understanding, the discussion will be conducted on the main problem, namely the principles good governance in relation to marine area management. 

Starting from what was stated above, the problem in this writing is the principles Good Governance in the management of marine areas. The focus of this paper is intended to find the principles Good Governance in marine area management.

2. ANALYSIS

1. Concept and Characteristics of Good Governance

Free power (discretionary power, discretionary bevoegdheid) which originally seemed not to be translated by "rechtmatigheidstoetsing" has long been abandoned. legal criteria (jurisdicche criteria) which is used to assess the aspect "legality"that power in the Netherlands is called"Algemene Beginselen van Behoorlijk Bestuur"[31]  Philipus M Hadjon[32], stated that:

"in administrative law it is debated whether the term governance  together with Directors. from an administrative law perspective, the concept good governance, related to the activities of implementing functions to organize public interests"

Good governance regarding the implementation of three basic government tasks, namely:[33]

1. Ensuring the safety of every person and society (to guarantee the security of all persons and society itself)
2. Managing an effective structure for the public sector, private sector and society (to manage an effective framework for the public sector, the private sector and civil society)
3. Advancing economic, social and other fields with the will of the people (to promote economic, social and other aims in accordance with the wishes of the population)

In addition, UNDP (the United Development Programs) formulate characteristics good government, that is :[34]

(1) participation; (2) rule of law; (3) transparency; (4) responsiveness; (5) consensus orientation; (6) equity; (7) effectiveness and efficiency; (8) accountability; (9) strategic vision

Examining these nine characteristics from a legal perspective, particularly Constitutional Law and followed by Administrative Law, these nine characteristics are based on two main foundations of Constitutional Law, namely (1) the principle of the rule of law; and (ii) the principle of democracy.[35]

Thus, from the perspective of Constitutional Law and Administrative Law, the main legal instrument problem in realizing good governance, In essence, the function of Constitutional Law and Administrative Law is to realize the principles of the rule of law and the principles of democracy.

Furthermore, in the Administrative Law approach, with comparative studies, there are three main approaches, namely:[36]

1. approach to government power
2. rights-based approach
3. functionalist approach

Concept good governance is a very broad concept. Therefore, it is necessary to understand the concept good governance and the General Principles of Good Governance (AAUPB). In his description of the general principles of good governance (algeme geginselern van behoorlijk bestuur), as stated by Philipus M. Hadjon[37], namely anything that is included in the elements "behavior" namely :

1. the principle of "fair play" (het beginsel van fairpaly)
2. principle of accuracy (carefulness)
3. the principle of precise targeting (zuiverheid van oogmerk)
4. principle of balance (balance)
5. principle of legal certainty (legality)

Furthermore, in AROB jurisprudence (Dutch administrative justice), well-known principles include:[38]

1. principle of consideration (motiveiringsbeginsel)
2. principle of accuracy (zorgvuidigheidsbeginsel)
3. principle of legal certainty (rechtszekerheidsbeginsel)
4. the principle of trust or the principle of responding to the hopes that have been raised (vertrouwensbeginsel of beginssel van opgewekte verwachtingen)
5. principle of equality (gelijkheidsbeginsel)
6. principle of balance (gelikheidsbeginsel)
7. principle of authority (bevoegheidsbeginsel)
8. fair play principle (beginsel van fairplay)
9. prohibition of "detournement de pouvoir" (het verbod van detournement de pouvoir)
10. prohibition on acting arbitrarily (het verbod van wille keur)

In the presentation on Good Governance (Good governance) in its correlation with administrative law. Paulus Effendie Lotulung,[39] stated that there are differences and similarities between good governance and AAUPB in administrative law, although it cannot be denied that there is a correlation and close relationship between the two concepts.

Regarding the differences and similarities between good governance and AAUPB, further explained that:[40]

1. The difference, is that the two definitions above are classified into different scientific disciplines, namely good governance included in the discipline of Public Administration, while AAUPB is included in the legal realm, namely Administrative Law. good governance  can also be related to aspects rule of law, and one of them is the field of Administrative Law which includes AAUPB. so it can be said that the criteria good governance  is the meaning genus, while AAUPB is the definition of the species, namely specifically in the field of Administrative Law.
2. The similarities, is that both teachings and thoughts are based on governance, both of which have the idealism of achieving good governance, although each has more specific criteria.

Based on the opinions of the two scholars above, it can be said that from the aspect of Administrative Law it can be used as a basis for action for the government based on the principles of government according to law (Wen-En Rechtmatig Bestuur), especially regarding the issuance of State Administrative Decisions.

One of the laws that comprehensively contains principles good governance is Law Number 41 of 1999 concerning forestry[41] by including the principles of democracy, justice, togetherness, openness, and integration in forestry management. Furthermore, the Explanation of Article 2 of Law Number 41 of 1999 states that:

The implementation of forestry is based on benefits and sustainability, it is intended that every implementation of forestry management takes into account the balance and preservation of environmental, social and cultural, and economic elements. The implementation of forestry is based on democracy and justice, is intended to ensure that every forestry operation must provide equal opportunities and chances to all citizens according to their abilities, so as to increase the prosperity of all people. Therefore, in granting authority to manage or permit forest utilization, monopolistic, monopsony, oligopolistic, and oligopsony practices must be prevented. Forestry operation is based on kebersamaan, it is intended that in implementing forestry a joint business pattern is implemented so that there is synergistic interconnection and interdependence between local communities and BUMN or BUMD, and Indonesian BUMS, in the context of empowering small, medium and cooperative businesses. The implementation of forestry is based on openness It is intended that every forestry activity involves the community and takes into account community aspirations. Forestry implementation is based on integration, is intended so that every forestry activity is carried out in an integrated manner by taking into account national interests, other sectors and local communities.

 

2. Principles of Good Governance in Marine Area Management

In the implementation of government with regard to law enforcement carried out by the government, it should be based on written and unwritten government norms which in practice are known as the General Principles of Good Government (Algemene Beginselen van Behoorlijk Bestuur). This is of course based on First, the principle of acting in accordance with statutory regulations (wetmatigheid) which includes authority, procedures and substance, and Secondly,, act in accordance with the AAUPB as an unwritten law.[42]

Referring to the opinion above, in the context of marine area management, it is necessary to place it in the determination of general principles (general principles) government and laws and regulations that reflect good governance in the administration of government, as referred to in Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

In line with this, Dietriech G. Bengen[43] stated that:

The failure to address the obstacles to sustainable development has opened up room for correction, moving from an approach that relies on regulation and oversight to one that relies more on the autonomous initiative of individuals or institutions. It's time to approach development with a paradigm good governance as a new social paradigm which Frijdorf Capra (1986) defines as a set of concepts, values, perceptions and actions accepted by society, which form a way of looking at reality and collective consciousness as the basis for society to organize itself.

Based on the above opinion, we can say that the demands for efforts to organize marine areas must be carried out in an integrated manner, and interconnected as a single unit with the keyword being integration. The aspect of integration is one of the fundamental principles in the spatial planning framework that serves to provide a foundation for integrating various interests, both regional and sectoral, especially within the framework of natural resource utilization. In addition, integration is one of the principles in the framework of implementing spatial planning as referred to in the provisions of Article 2 point (a) of Law Number 26 of 2007.[44]. One of the important principles in relation to the elements of the principle of sustainability in the management of marine areas is the element legal certainty (legal certainty).

The issue of legal certainty is one of the elements "behavior" namely the principle of legal certainty (legality). This principle deserves serious attention in the context of marine area management. This can be seen in the provisions of Article 73 of Law Number 26 of 2007 concerning Spatial Planning. The full formulation of Article 73 states that:

Article 73

(1) Every authorized government official who issue permits does not comply with the spatial planning as referred to in Article 37 paragraph (7), punished with imprisonment maximum of 5 (five) years and a maximum fine of IDR 500.000.000,00 (five hundred million rupiah).

(2) In addition to the criminal sanctions as referred to in paragraph (1), the perpetrator may be subject to additional penalties in the form of dishonorable dismissal from his position.

Moving on from the provisions mentioned above, from a technical perspective the norms of these provisions contain defects regarding the imposition of sanctions on officials (paragraph 1). In this case, we need to pay attention to the opinion expressed by Philipus M. Hadjon[45], namely that:

"The difference between administrative sanctions and criminal sanctions can be seen from the purpose of imposing the sanctions themselves. Administrative sanctions are aimed at... the offender's actionsWhile criminal sanctions are directed at the offender by imposing a punishment in the form of suffering. Administrative sanctions are intended to stop the offender's actions. The nature of sanctions is 'reparatory', meaning they restore the original state. Furthermore, the difference between criminal sanctions and administrative sanctions lies in the law enforcement action. Administrative sanctions are applied by state administrative officials without having to go through court procedures, while criminal sanctions are only imposed by judges through the judicial process.

The opinion above confirms that it is not appropriate for the official concerned (paragraph 2) to be subject to "additional punishment in the form of being dishonorably dismissed from office"

Apart from that, the formulation of the norms as referred to in Article 73 above, on the one hand, is contrary to the principle of legal certainty and on the other hand, it is also contrary to the principle of presumption of 'rechtmatig' (vermoeden van rechtmatigheid; praesumptio iusta causa) that every government action, including decisions, must be considered 'rechtmatig' until it is revoked.

This does not mean that it is not permissible to revoke a wrong decision. In this regard too, Philipus M. Hadjon[46], reiterated that:

"An erroneous decision or a decision containing other errors can be revoked by taking into account the provisions of administrative law, both written and in the form of legal principles, so that not every error in a decision gives rise to the authority for the government (the official who issued it) to revoke it. The authority to revoke an erroneous decision does not depend on a clause called a safeguard clause (veiligheidsclausule)….."

Referring to the opinion above, the official is not subject to criminal sanctions, but it is necessary to pay attention to the provisions of administrative law, both written and in the form of legal principles.

Apart from the principle of legal certainty (rechtszekerheidsbeginsel) which underlies the realization of the principle of sustainability in the management of marine areas, it is also important to pay attention to principle of authority (bevoegheidsbeginsel) as the basis for managing marine areas. This authority must be clearly regulated and established in applicable laws and regulations.

This means that the acquisition and use of government authority in regulating marine spatial planning can only be done if the region, based on statutory provisions, has the authority to do so, as stated by Philipus M. Hadjon[47], namely, that:

"...at a minimum, the basis of authority must be found in a law if the ruler wishes to impose obligations on the citizens. This creates democratic legitimacy. Through the law, parliament, as the legislator representing its constituents, helps determine what obligations are appropriate for citizens. Therefore, the attribution and delegation of authority must be based on formal law, at least if the decision imposes obligations on the citizens."

 

Meanwhile, Tatiek Sri Djatmiati[48], in his dissertation, he describes the relationship between administrative law and authority, namely that:

"Administrative relations or governance law (administrative or bestuursrucht) contains legal norms of government. These government norms serve as parameters used in the use of authority by government agencies. The parameters used in the use of this authority are legal compliance or non-compliance (improper legal or improper illegal), so that if there is use of authority, it is carried out in a "improper illegal"then the authorized government agency must be held accountable"

This final opinion is related to the existence of authority standards, namely general standards (for all types of authority) and specific standards (for certain types of authority), so these authority standards are used to test the use of authority (governmental authority). Testing the use of this authority is based on administrative law norms, namely general norms and specific norms (general principles of good governance).

One of the concepts in the concept of administrative law, namely 'law for" related to the administration of government. This field is related to norms regarding government authority. The main parts of this field, according to Philipus M. Hadjon[49], including among others:

1. source of authority; attribution, delegation and mandate
2. principles of governance. Based on the principle of the rule of law, the basic principle is the principle of legality (rechtmatigheid van bestuur)
3. discretion
4. procedures for the use of authority

Regarding attribution, it is explained that, attribution comes from the Latin word ad tribune it means give to. The technical concept of constitutional law and administrative law defines attributional authority as authority that is granted or assigned. Meanwhile, delegation comes from Latin. to delegate which means to delegate. Thus, the concept of delegated authority is delegation of authority. Meanwhile, the mandate comes from Latin send which means to order. Thus the concept of mandate contains the meaning assignment. not a delegation of authority[50]

Every authority is limited by material (substance), room (region; locus) and time (tempus). outside these limits a government action is an action without authority (onbevoegheid). This action can be in the form of onbevoegheid ratione materiae, onbevoegheid ratione loci (region), onbevoegheid ratione temporis (time)[51].

Based on the description of the concept of authority, the question raised in relation to marine area management is whether the authority to manage marine areas belongs to the central government or to regional governments (provinces and/or districts/cities)? The answer to this question begins with an analysis of the concept of authority. Authority itself is a public law concept. Therefore, authority can only be obtained through attribution, delegation, and mandate.

In the formulation of the provisions of Article 6 paragraph (5) of Law Number 26 of 2007 it is stated that "Management of sea and air space is regulated by separate laws.". The formulation is set with The law contained in the provisions above, is given the meaning that the matters regulated in the provisions must be formulated in a law specifically issued for that purpose.

Based on the basic components of authority, namely the components legal basis, that the authority must always be able to be designated as having a legal basis and components legal conformity, contains the meaning of the existence of authority standards, namely general standards (all types of authority) and special standards (for certain types of authority), so the next question is, is it impossible for the government (central and regional) to manage marine areas?

To analyze the answer to the question above, it can be done by using legal interpretation. Regarding this matter Philipus M. Hadjon[52] explains that:

"In relation to interpretation, it is interesting to note Contextualism principle in the interpretation as stated by Ian Mcleoad, in his book Legal Method, namely:

1. Principle of Noscitur a Sociis. Something is known from its associations. This means that a word must be interpreted in its sequence.
2. The Principle of Ejusdem Generis. meaning according to its genus, meaning that a word has a specific meaning limited to its group
3. The Principle of Expressio Unius Ezclusio Alterius. This means that if a concept is used for one thing, it does not apply to other things.

By referring to the three principles above, an assessment of the government's authority in managing marine areas can be conducted. Furthermore, various laws and regulations (both direct and indirect) relating to marine area management, which are spread across sectoral laws, have the potential to give rise to multiple interpretations of the meaning of their normative formulations, both open (open texture) as well as vague norms (vague norm)

By separating the separate spatial arrangements in the sea area, it is substantively contrary to the spatial arrangement pattern itself as a single unit which is carried out in a tiered and complementary manner as intended in the provisions of Article 6 paragraph (2) of Law Number 26 of 2007. These provisions require synergy in the spatial planning process which includes land, sea and air areas so that they will synergize with each other in order to avoid overlapping authority in the implementation of spatial planning itself.  

In another section, the presence of Law Number 27 of 2007[53]  It also fails to address the issues faced in marine spatial planning itself. This is clearly evident in the pattern and scope of coastal area regulation. Article 2 of Law Number 27 of 2007 states: 

Scope of Coastal Area and Island Regulations Small covers the transition area between terrestrial and aquatic ecosystems. sea ​​influenced by changes on land and sea, to land direction covers the administrative areas of the sub-district and to sea ​​direction as far as 12 (twelve) nautical miles measured from the line Beach. 

The provisions above will give rise to different interpretations if they are linked to Law Number 6 of 1996, namely the concept with the scope of understanding regarding "Indonesian waters" which includes territorial seas, archipelagic waters and inland waters.

It is further stated that all waters around, between and connecting the islands or parts of the islands that are part of the land area of ​​the Republic of Indonesia, without taking into account their area or width, are an integral part of the land area of ​​the Republic of Indonesia and therefore are part of Indonesian waters that are under the sovereignty of the Republic of Indonesia.[54]

Considering the limitations and scope of the two provisions mentioned above, it is clear that Law Number 6 of 1996 regulates the division of maritime areas in relation to the sovereignty boundaries of a country (in this case, Indonesia). Meanwhile, Law Number 27 of 2007 regulates the administrative boundaries of coastal areas in accordance with their use in natural resource management.[55].

Furthermore, the determination of the scope of the coastal area as regulated by Law Number 27 of 2007 in its implementation, towards the sea is set at 12 (twelve) miles measured from the coastline as stipulated in Law Number 32 of 2004.  

Meanwhile, towards the land, it is determined according to the sub-district boundaries for provincial authority. The authority of districts/cities towards the sea is set at one-third of the maritime area under provincial authority, as stipulated in Law Number 32 of 2004.[56], while towards the mainland it is determined according to the sub-district boundaries.

The designation of coastal areas is related to regional authority in managing marine resources. In other words, there is no partial sovereignty over maritime territory for regions. This is because, from a formal legal perspective, territorial sovereignty over maritime territory must be understood within the context of the Unitary State of the Republic of Indonesia. Therefore, in this concept, the delegation of authority is not understood as an attempt to divide up maritime territory within the region.

Meanwhile, if we look closely, Law Number 27 of 2007 also does not explain and regulate further regarding coastal areas that are outside 12 nautical miles or sea areas from 12 miles to 200 miles towards the open sea as the outermost boundary of the Exclusive Economic Zone. This is because the measurement procedures based on the provisions of UNCLOS 1982 which have been ratified by Law Number 17 of 1985 are intended for countries, but cannot be applied to all countries' territories, with the aim of obtaining the outermost boundaries of each maritime zone that has a different legal status.[57]

In another section, based on Law Number 32 of 2004, regional authority (provinces, districts and cities) is conceptualized in managing marine resources based on the provisions of Article 18 paragraph (1), paragraph (3) and paragraph (4).[58]. The authority given to regions in the management of marine resources in the concept of management is not intended as an effort to divide the sea by the region, but rather emphasizes the regulation of administrative boundaries of regional authority in the management of resources in marine areas, including for exploration, exploitation, conservation, regulation of utilization, spatial planning and law enforcement in the marine area.

This is because the boundaries of the management and planning areas that are conceptualized with the boundaries of the sea areas in the region are a consequence of the existence of regional authority regulations in the management of sea areas as regulated in Law Number 32 of 2004.

However, if we look closely, the regulations regarding regional authority in managing marine resources as referred to in the provisions of Article 18 of Law Number 32 of 2004 above, adhere to a system of dividing regions which, if not studied properly, will result in forms of division of marine areas by regions which will result in conflicts in marine areas.

Therefore, in the event of a conflict between legal norms and the laws as stated above, it is necessary to determine which norm should be applied. The step taken is to resolve the conflict of norms. In this case, as stated by Philipus M. Hadjon[59], related to the principle legal preference (which includes the principles lex superior, principle lex specialist and principles posterior lex) namely: 1) Denial (dissavowal), 2) Reinterpretation, 3) Invalidation, 4) Remedy"

 

 

 

 

 

 

 

 

Reading List

 

Bruggink, (1999), Reflections on Law, translated by Arief Sidharta, B., Citra Aditya Bakti, Bandung

Dina Sunyowati, (2008), Legal Framework for Coastal Area Management Based on the Concept of Integral Coastal Management in the Framework of Sustainable Marine Development, Dissertation, Arlainga

         _______________, (2009), Coastal and Marine Area Management Regulations, Yuridika, Volume 24, No.1, January-April 2009.

E. Utrecht (1960) Introduction to State Administrative Law, 4th Edition, Faculty of Law and Public Knowledge, Padjajaran State University, Bandung, 1960

Jimly Asshiddiqie, (2006),  Hans Kelsen's Theory of Law, Publisher Constitution Press, Jakarta

          _______________, (2009), Green Constitution_Green Shades of the 1945 Constitution of the Republic of Indonesia, PT Rajagrafindo Persada, Jakarta, 2009, p. 91

Jacob Rais, (2004),  Integrated Marine Spatial Planning, Publisher, PT Pradnya Paramita, Jakarta

Philipus M. Hadjon, et all, (2010)  Administrative Law and Good Governance, Trisakti University Publisher, Jakarta, 2010

          _______________, Philipus M. Hadjon and Tatiek Sri Djatmiati, Legal Arguments, Gadja Mada University Press, November 2005 (Second printing), Yogyakarta

          _______________, (2005), Introduction to the Indonesian Administrative Law, Gadja Mada University Press, Yogyakarta, March 2005 (ninth printing)

        _______________, (1997), About Authority, Yuridika, September to December Edition, 1997, Surabaya

         _______________, (2004), Benchmark for the Legitimacy of Government Actions and State Administrative Decisions, Paper, Presented at the House Legal Training on Administrative Law and PTUN for BI employees, 19-29 July 2004.

        _______________, Discretionary Power and General Principles of Good Government (AAUPB), Books, without year of printing and publisher.

          _______________, (1994), The Normative Function of Administrative Law in Realizing Clean Governance, Inauguration Speech for the Acceptance of the Position of Professor in Law at the Faculty of Law, Airlangga University, Surabaya

         _______________, (1993), Government According to Law (Wet-EN Rechtmatig Bestuur), ISBN 979-585-003-2, First Printing, August 1993, Publisher "Yuridika", Surabaya, p.11

Tatiek Djatmiati, (2004), Principles of Industrial Business Licensing in Indonesia, Postgraduate Dissertation, Airlangga University, Surabaya

         _______________, (2011), Public Services, Maladministration, and Corruption, Paper, presented at the One-Day Seminar, Administrative Law and Corruption Crimes, Ambon

         _______________, (2004), Faute Personelle And Faute De Service In State Liability, Yuridika, Vol.19, No.4, July-August 2004