AnAssessment of Indonesia’s Ship-Breaking Policy Against the Requirements Set Forth in Article 73 of UNCLOS

Abstract

Article 73(1) of the United Nations Convention on the Law of the Sea (UNCLOS) 1982 permits a coastal state to take only those enforcement measures that are necessary to ensure compliance with its fisheries laws, a formula that international tribunals have read as importing a requirement of proportionality. Indonesia’s policy of sinking foreign vessels caught fishing illegally is frequently defended as lawful in its domestic chain of authority, yet whether the permanent destruction of a vessel can satisfy the international necessity-and-proportionality standard has not been examined as a question in its own right. This study isolates and tests that question using a normative legal method with statute, conceptual, and case approaches, drawing on UNCLOS Article 73, the jurisprudence of the International Tribunal for the Law of the Sea (ITLOS) on prompt release and reasonableness, and situational crime-prevention theory. The analysis develops a three-limb proportionality test, suitability, necessity, and proportionality in the narrow sense, and applies it to vessel destruction as against lesser measures such as fines, confiscation, and licence revocation. The novelty of this study is a structured proportionality framework showing that destruction is defensible only where three conditions co-exist: demonstrated failure of lesser measures to deter repeat incursion, destruction of the vessel as instrument rather than punishment of the crew, and observance of the Article 73 procedural safeguards; absent any condition, sinking exceeds what Article 73(1) permits.