The Use of Ecosystem Services Model in Sustainable Coral Reefs Management: Some Legal Reflections

3.1Analysis of global legal instruments

The study reviewed two forms of global law instruments. The first is the soft law, which is a form of an international agreement on common and fundamental aspects of the coral reef ecosystem protection. The analysis of the global law instruments is presented in Table 1 (Annex Table 1), which shows analysis from: the Stockholm Declaration of 1972²¹, the Rio Declaration of 1992²², the Agenda 21, the Johannesburg Declaration of 2002²³, the Rio plus 20²⁴., and the SDGs 2015²⁵.

The second is hard law instruments (Annex Table 2), includes Ramsar Convention 1971²⁶, World Heritage 1972²⁷, CITES 1973²⁸, UNCLOS 1982²⁹, CMS 1990³⁰, and UNCBD 1992³¹.

3.2Analysis of regional legal instruments

The regional legal instruments consist of UNEP Regional Sea Conventions, Coral Reef Triangle Initiative Guiding Principles³², and ASEAN Documents. The analysis of these legal instruments is presented in the following Table 3 (Annex Table 3).

3.3Analysis of national legal instruments

The national legal instruments consist of Law Number 9/1985 on Fisheries³³; Law Number 45/2009 on Fisheries³⁴; The Law of the Sea Convention 1982 (Law Number 17/1985); Law Number 5/1990 on Conservation of Biological Natural Resources and their Ecosystems³⁵; Government Regulation Number 7/1999 on Preserving Flora and Fauna Species³⁶; Government Regulation Number 8/1999 on Wild Flora and Fauna Exploitation³⁷; Government Regulation Number 60/2007 on Conservation of Fish Resources³⁸; Presidential Decree Number 43/1978 dated December 15, 1978 on Ratification of CITES³⁹; Decree of the Ministry of. Maritime and Fishery Affairs Number 38/MEN/2004 on General Guidelines for the Management of Coral Reefs⁴⁰; Circular Letter of the Minister of Development Supervision and Environment Number 408/MNPPLH/4/1979, dated April 30, 1979, on Prohibition on Taking Corals which may Destroy the Marine Ecosystem (sent to all Governors in Indonesia)⁴¹; Circular Letter of the Directorate General of Fisheries Number E.I/5/5/11/1979, dated May 28, 1979, on Prohibition on Taking Corals which may Damage the Marine Ecosystem, (sent to Heads of the Provincial Fishery Offices in Indonesia)⁴²; and Circular Letter of the Directorate General of Fisheries Number IK.220/D4.T44/91, on Fishing with Prohibited Materials/Equipment (sent to Heads of the Provincial Fishery Offices in Indonesia)⁴³. The analysis of these national legal instruments is presented in the following Table 4 (Annex Table 4).

3.4Analysis of regency/municipality legal instruments

The regency/municipality legal instruments analyzed are taken from two regions: Bintan Regency of the Riau Islands Province, and Sabang City of Aceh Province. The regulations in Bintan Regency consist of Bintan Regency Government Regulation Number 12/2008 on Coral Reef Management⁴⁴; Bintan Regent Regulation Number 13/II/2009 on Strategic Plan (RENSTRA) for Coral Reef Management in Bintan Regency 2009–2014⁴⁵; Bintan Regent Decree Number 261/VIII/2007⁴⁶; and Bintan Regent Regulation Number 7/2009⁴⁷. Meanwhile, the regency/municipality legal instruments in Sabang City consist of Sabang Mayor Regulation Number 7/2013 on Management and Zonation Plan in the Eastern Coastline of Weh Island of the Sabang City⁴⁸; and the Decree of the Sabang City Head of Maritime and Fishery Office Number 523/80/2012⁴⁹. The analysis of these legal instruments is presented in the following Table 5 (Annex Table 5).

The government, non-governmental organizations, higher education institutions and communities have to be involved in the coral reef conservation efforts in the local level. The local government can allocate a certain area in the coastline to be reserved as a conservation area with a Regency/Municipality Government Regulation. As an example, in Bintan Region, the management of the conservation area is based on Bintan Regency Government Regulation Number 12/2008 on Coral Reef Management; Bintan Regent Regulation Number 13/II/2009 on Strategic Plan (RENSTRA) for Coral Reef Management in Bintan Regency 2009–2014; and Bintan Regent Decree Number 261/VIII/2007. Those are the legal instruments used in managing and deciding the zonation. Likewise, in Sabang City, the conservation zonation is based on Sabang Mayor Regulation Number 7/2013 on Management and Zonation Plan in the Eastern Coastline of Weh Island of the Sabang City. In implementation, the government of Bintan established the Local Technical Implementation Unit Organization based on the Bintan Regent Regulation Number 7/2009. Likewise, the government of Sabang City established the Local Conservation Area Management Agency based on the Decree of the Sabang City Head of Maritime and Fishery Office Number 523/80/2012. Both organizations work under the local government in supervising and implementing coastal area and coral reef conservation management.⁵⁰

To disseminate the local government regulations concerning the management of coastal area resources, the local government, the Local Conservation Area Management Agency, and other governmental organizations can provide outreach trainings. In Sabang City, the outreach training is done by the Ministry of Maritime Affairs and Fisheries Office and the Local Financial Management Board (Illustration 2). In Bintan Region, the conservation area management efforts have been done since 2007. With the initial zoning arrangement activity in 2007, the conservation efforts were continued in 2008 with coral reef management and MMA (Marine Management Area) activities for the areas of Gunung Kijang and Bintan Pesisir districts. Next, in 2009, the conservations activities done were the zoning and management planning for Bintan Region, and the installment of sea markers and signs in the MMA areas in Tambelan district and East Coast Bintan.⁵¹ In Batam City, the KKD management is done by the Local Technical Implementation Unit, the Coral Reef Resource Management Agency (LPSTK), and the Supervisory Community Group (POKMASWAS).⁵²

3.5Other regulations

Other legal instruments are taken from three areas, namely Simeulue Area of Aceh; Sabang City of Aceh; and the Bajo Tribe of Gorontalo. These areas are homes to three indigenous tribes that have their own regulations concerning conservation efforts. The analysis of these legal instruments is presented in the following Table 6 (Annex Table 6).

As an example, the village-level institutional strengthening strategy and the program implementation in the fields are ineffective because the establishment of the management agencies such as Village Rules and Marine Cultivation Areas often do not take the people’s interests into consideration.⁵³

Therefore, it is advisable that the Local Government Regulation also includes the people’s involvement in managing the coral reefs and coastal areas. A good example is the Aceh area of Simeulue’s local regulation, which includes a very strong cultural/traditional aspect in managing the sea area by actively involving the people.

The traditional institution even declares a Hari Pantang Melaut, which means a day when going to sea is prohibited, in the PiSiSi areas (The Conservation areas of Perairan Pinang, Siumat and Simanaha). This customary law of abstinence from going to sea states Prohibitions on special days and Fridays, as stated below⁵⁴:

Still in Aceh, the Sabang City also has a local fishing community organization which was established by the local community called “Panglima Laot” (Annex Table 6). “Panglima Laot” is the leader of a customary institution formed by the fishermen community in Aceh coastal areas usually known as “Lhok”. The person who can be appointed “Panglima Laot” is a prominent figure in the society or a trusted leader of a fishermen community in the coastal areas. The East Coast of Weh Island is divided into two sub-districts (“Lhok”), namely “Panglima Laot Lhok Ie Meulee” and “Panglima Laot Anoe Itam” (Annex Table 6). In general, a “Panglima Laot” has three institutional functions, namely maintaining the security at sea, managing the utilization of the sea resources, and managing the sea environment. In carrying out his functions, a “Panglima Laot” has the authority to enforce the Customary Law of the Sea, to manage the utilization of the sea resources, and to supervise the Customary Law of the Sea trials. In managing sea resources, one of the regulations set up by the “Panglima Laot Ie meulee” dan “Anoe Itam” regulates the fishing gears that can be used for fishing. In both areas, fishing trawls and compressor tools are prohibited to use. Fishing gears that can be used in the eastern coastal areas are fishing rods, “tonda”, and fishing nets. With this regulation, supervision comes not only from the government but also from the people themselves.

The Bajo tribe of Gorontalo in Sulawesi Island also shows a local wisdom as the implementation of the people’s ecological intelligence in protecting the aquatic ecosystem. One of the traditions that the tribe has is the “mamia kadialo” (Annex Table 6), which is a system of grouping people who go to the sea for a certain period of time using a certain type of means/boats. There are three customs in this tradition. They are “palilibu”, “bapongka”, dan “sasakai” (Annex Table 6). “Palilibu” is the custom of fishing using the traditional rowing boat called “soppe”. The fishing activity is done in one or two days. When the fishing activity is completed, the fishermen go back to their village to sell a part of their catch and enjoy the rest with their family. “Bapongka”, also called “Babangi”, is the custom of fishing that lasts for a couple of weeks or event months, using a bigger boat measuring approximately 4×2 meters called “Leppa” atau “Sopek”. Wives and children are taken along in the fishing journey. Wives often give birth during the trip. The most important aspect of the “bapongka” custom is the obedience in following the restrictions. “Sasakai” is the custom of going to sea for months using several boats within the inter-island cruising area.⁵⁵.

During the “mamia kadialo”, there are restrictions that must be obeyed by those who go to the sea and by the family members that they leave behind. The restrictions are that the people are not allowed to throw to seawater things such as the water used for washing sea cucumbers, wood charcoal or kitchen ash, cigarette butts and ash, liquid from chilies, ginger and extract from oranges, and to wash cooking utensils (woks) in seawater. Water used for cleaning or washing and other materials mentioned in the restrictions are to be kept and then later disposed on land after the people go back from the sea. There is also the restriction of not consuming sea turtle meat. Breaking this rule is believed to invite calamities, storms, and disturbances from evil spirits, and even bad luck in getting a good catch. The elder generation of the Bajo people also believe that some coral groups are the place where the spirits of their ancestors stay. The elderly people forbid their family members from catching fish and other biota in those coral group areas, except after a certain ritual of giving offerings to the ancestor spirits is done.⁵⁶

It is advisable that there is a supervision in coordinating the local regulations with the customary regulations in managing coastal areas. Similar to the MPA (Marine Protected Area) policy, “Batu Pangalle” area in South Sulawesi applies a no-fishing restriction to protect its large number of coral reefs.⁵⁷

3.6Ecosystem Services Model for Coral Reef Ecosystem

The points found from combining the results of all of the analysis of the legal instruments are as followed:

1. Policy and Law

Concerning the policy and legal aspects, there have been sufficient number of international, regional, national, local, and even legal instruments. These regulations generally support and sustain the existence of coral reefs as an ecosystem that must be protected.

2. Ecosystem Management

Not all regulations in the international, regional, national, or local levels include coral reef ecosystem management. However, efforts have been made towards ecosystem management in protected areas through the implementation of regulations of zone selection, utilization, control, and law enforcement. However, there are also non-regulatory regulations that only serve to help protect the coral reef ecosystem from damages.

3. Ecosystem Services

Not all regulations in the international, regional, national or local levels provide the opportunity for the utilization of the coral reef ecosystem as a part of ecosystem services. Utilization of the coral reef ecosystem services like utilizing coral reefs for tourism purposes or for other controlled purposes is still minimal. While protecting the ecosystem, there should be efforts to responsibly utilize the coral reefs.

4. Welfare

Not all regulations in the international, regional, national or local levels contribute to people’s welfare. Some regulations help improve people’s welfare through good utilization of natural resources. However, there are more regulations that limit opportunities for welfare improvement. There are areas which are completely closed for the local people to use, but those areas can be legally or illegally used by other parties without contributing anything to the local people’s welfare. Those other parties have the authority to give the local people permission to utilize the areas.

5. Feedback

Feedback is a description of how international, regional, national or local regulations can provide the basic reasons for good utilization of natural resources for the improvement of people’s welfare. The people’s welfare improvement aspect that is not provided by some of the existing regulations is expected to be fulfilled by norms in the society.

3.7Discussion

After studying all of the international, regional, national, regency/municipality and local regulatory instruments, it is found that not all of them support the theory of ecosystem services put forward by Alexander van Oudenhoven.

In this study, several international agreements, both hard law and soft law have shown support for improving community welfare, especially local communities. As explained above, from several international agreements studied, there are hard laws in conventions or agreements such as UNCBD or the ASEAN Agreement. Meanwhile, examples of soft law include the 1972 Stockholm, 1992 Rio, and SDGs declarations. Both are important for Indonesia in carrying out international commitments, especially aspects of international agreements. For example, UNCBD 1992 has provided Directives for the use of biodiversity for the life of local communities. Likewise, the SDG’s goals related to climate change, marine and biodiversity also allow local communities to use natural resources and protect their lives.

Meanwhile, in the perspective of national regulations, there are still many insufficiencies of the regulations themselves or the existence of norms that do not support efforts towards welfare. It is very common to find regulations that focus only on prohibitions or restrictions in supposedly usable areas. In the theoretical framework used in this paper, improving welfare is a concern, so it is essential to look at this factor in each regulation related to coral reef conservation at various levels.

For example, the Circular Letter of the Minister of Development Supervision and Environment Number 408/MNPPLH/4/1979, dated April 30, 1979, on Prohibition on Taking Corals which may Destroy the Marine Ecosystem (sent to all Governors in Indonesia). Without providing solutions to the community, this regulation only prohibits taking coral reefs to improve their welfare. The Indonesian government has not revoked the regulation to this day. Therefore, it is crucial to create regulations that incorporate opportunities for the utilization of an area according to its condition.

Some norms covered in various regulations have provided the ecosystem services model opportunities. For example, there are norms covered in international regulations that stress the importance of people’s welfare as guided by Sustainable Development Goals (SDGs). Therefore, there are problems in international conventions that are more legally binding and only provide limits on utilization without regard to the lives of local people. For example, CITES 1973 only strictly enforced the international trade system in animals and plants without allowing local communities to further engage in supporting these restrictions and prohibitions.

Another example is the Ramsar Convention 1971. Many wetlands are protected and have priceless value, but the 1971 Ramsar Convention has not been included. Some lands that have not been included in the convention list will easily change their designation and function for development purposes. This matter causes the convention to be ineffective, even though it has been made a national regulation. Of course, this will reduce the hope for future generations to get a better environment. Then, Bintan Regent Regulation 13/2009 regulates coral reef zoning, but this regulation is still risky because busy shipping activities often cause pollution in several protected locations. This regulation needs to be integrated with other regulations related to shipping traffic transportation in the area. In the Simeulue Area of Aceh customary regulations, it turns out that it has not focused on efforts to improve the welfare of indigenous peoples. This condition is because this regulation places more emphasis on conservation efforts.

Several national laws have also demonstrated a commitment to improving welfare, particularly concerning the use of coral reefs. In the Fisheries Law, Number 45 of 2009, equity and sustainable development principles will also be related to welfare. There are quite some activities in the field of fisheries, but in essence, the various conservation and utilization carried out under this law are expected to provide welfare for the surrounding community. Preservation, such as carrying out conservation actions in certain areas where there are many coral reefs, seagrass beds, and mangroves, must still be done so that the available fishery resources do not quickly disappear or even become extinct. Actual conservation actions are taken, such as the designation of a Marine Protection Area to be a valuable place for developing fishery resources. The area can act as a protected place starting from spawning to birth until it develops and spreads outside the protected area, then utilized by all interested parties. Various types of fish, both commercial and non-commercial, are needed to increase biodiversity.

Indonesia has also ratified the 1992 Convention on Biological Diversity/UNCBD, which demonstrates Indonesia’s commitment to the world’s biodiversity and as the basis for protecting biodiversity in Indonesia. Protecting biodiversity is not only terrestrial but also marine and coastal biodiversity. The model for protecting biodiversity, starting from existing policies, developing ecosystem services to protect biodiversity and improve welfare, especially the welfare of local communities, is fundamental.

This is intended so that feedback can occur because the use of biodiversity through the availability of diverse fishery resources has benefited local communities. These conditions can encourage local communities to act more on improving their protection so that this feedback will provide the overall benefit of the system developed from this theory. Protected areas, such as around the Coral Triangle Area (CTI), already have policies and regulations to develop coral reef ecosystem services through tourism areas. The benefits began to be felt by the local community with the arrival of tourists who care about coral reefs. In this way, efforts to further protect the area where local communities are located will provide feedback for the entire system in the area.

The existence of various regional regulations in Indonesia to support the preservation of coral reefs and the community’s welfare is also very important. Regional regulations in Indonesia have various forms such as Qanun, Provincial Regulations, Regency/City Regulations, Governor Regulations, Governor Decrees, Governor Instructions, Governor Circulars, Regent/Mayor Regulations, Regent/Mayor Decrees, Circulars, and so on. Not to mention the Village Regulations, which can be in the form of Village Head Regulations, Village Head Decrees, to customary village regulations if the village is a traditional village. In indigenous peoples, written and unwritten customary law applies.

The number of regulations in the regions reflects the support for national regulations, even international commitments. It can be seen in Regulation of the Regent of Bintan No. 12 of 2008, which regulates the management of coral reefs. Coral reef management is part of ecosystem management regulated by laws and regulations at the central level. These various regulations from the Bintan Regent make coral reefs a vital part of efforts to protect the environment and manage ecosystems through the existence of policies and laws. This includes utilizing ecosystem services and improving welfare for the people of Bintan to restore the management to be better due to the attention of the community and the fishing community of Bintan.

Regional Regulations also give the region the power to take actions that damage and pollute the environment. Several local regulations related to coral reefs allow the community to form a Monitoring Group whose function is to monitor and supervise various activities related to coral reefs and the marine environment in the vicinity. This is important, considering that the position of the surrounding community is the closest to marine activities in the vicinity. Communities can participate in protecting their seas from harmful actions, such as pollution and damage. The community also has space to provide assistance and support, especially law enforcement officers. Community participation can facilitate the work of law enforcers who are very limited to always being present at the location. The existence of institutions in the community is also essential, especially in helping to agree and share the results achieved in coral reef management activities.

In indigenous peoples in several regions in Indonesia, there are also similar institutions that supervise and assist the community in marine activities. Protecting coral reefs is also carried out by indigenous people far from being monitored by law enforcement officials. The institutional strength of indigenous peoples is even more critical in some areas because it has become a tradition that developed long ago in the colonial period. Certain customary areas even have complete tools for dealing with marine issues, especially coral reefs. For example, in Maluku, the practice of “Sasi” has long been regulated by indigenous peoples, especially when fishing and conserving fish habitat in customary areas. In Aceh, Panglima Laot is well respected, especially in protecting the sea around indigenous peoples so that there are no losses or opportunities for indigenous peoples. If these opportunities are lost, there will be no prosperity for the region’s indigenous peoples.

The above shows how important the status of traditional institutions is, especially in efforts to protect coral reef ecosystems. Although many customs or customs have begun to disappear or diminish in modern times, efforts to maintain the life of indigenous peoples are still guaranteed through the constitution and national laws and regulations. The decision of the Constitutional Court has even emphasized the attention of indigenous peoples as part of society that must be protected by the government, both at the central and regional levels. The Constitutional Court’s decision is essential and has confirmed support for indigenous peoples in Indonesia.

Some national, regency/city, or even local regulations have also been in line with the ecosystem services model, but they have different application levels. Some regulations permit people to utilize an area, while others prohibit people from entering an area. Some achievements in efforts to conserve coral reefs and improve community welfare in the form of policies should be appreciated. However, these various achievements do not necessarily eliminate the environmental and social welfare problems that still occur today. The discontinuity between policy and practise is still common today. Some international rules are often not even in line with national rules and daily practice.

It is very important that ecosystem services as a mean to improve the people’s welfare be analyzed further in relation with the international regulations in the form of international treaties or customs, or with the national regulations in the form of laws or regency/city regulations. Should also be included in the analysis are written regulations made by the government and unwritten regulations like the customary laws. Although their age is limited by the life of the flora and fauna that dwell in them, coral reefs have economic value because of their beauty. This potential of coral reefs should be utilized as a service that can protect their ecosystem. Not all countries have beautiful coral reefs that can be economically utilized to improve the welfare of the people and to increase the national income.

Ultimately, an international, regional, national, regency/city or local legal instrument should be able to give social and environmental protection, as well as welfare improvement for the people. For this purpose, the concept of sustainable development can be carried out through the implementation of sufficient regulations and norms.