THE IMPLEMENTATION OF POLLUTER-PAYS PRINCIPLES ON MARINE POLLUTION CAUSED BY VESSELS IN INDONESIA

Article Info Abstract Received : 25/07/2020 Approved : 06/08/2020 Nowadays, there are some marine pollution cases caused by oil spill from vessels. These cases give a significant impact on marine environment and threatening human’s life. Therefore, law enforcement is needed. One of the principles that can be used in solving this problem is Polluter-Pays principles. This principle found in the 16th principle of the Rio Declaration on Environment and Development on 2002. The requirement of the principle is cost of pollution should be borne by the person responsible for causing the pollution. National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments. This article aims to find out the implementation of polluter pays principles in Indonesia, especially in study of oil spill. Polluter pays principle can be used as one of solution in helping country overcome the loses oil spill cases within Indonesian waters. One of the challenges is Indonesia need a specific instrument used as a mechanism for calculating the loss or damage that should be paid by the polluters.


II. RESEARCH METHODS
This research uses normative research methods, it will be using library research to get data, citing and analyzing data that are related to the object of the research. Data obtained from library research will be processed systematically to attain an appropriate depiction of the research problems.
The data subsequently will be analyzed by using a qualitative approach so that it can be acquired objective analysis to answer the problem raised.

Marine Pollution Under International Environmental Law
Marine Environment is regarded as a valuable source of food in terms of fisheries production, as the mode of transportation particularly for bulk carriers, and as recreational grounds. Firstly in article 1 (1)(4) of UNCLOS 1982 stated that pollution of marine environment means the introduction by man, directly or indirectly of substances or energy into the marine environment including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities. Marine pollution is a form of marine environmental damage that can cause the sea to lose its proper function. 7 Article 192 of UNCLOS 1982 states that "States have the obligation to protect and preserve the marine environment.".This 192 article is followed by the next article namely article 193 which gives the State the right to manage its natural resources at sea. 8 In article 207(2) of UNCLOS states "States shall take other measures as may be necessary to prevent, reduce and control such pollution".
Article 211 of UNCLOS 1982 regulated pollution from vessels. In article 211(1) stated that "States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate of routing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline and pollution damage to the related interests of coastal states".
Every state shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a state participating in such cooperative arrangements, to furnish upon the request of that state information as to whether it is proceeding to a state of the same 7 UNCLOS 1982, art. 1 (1)(4). 8  Marine pollution, all the states shall consistent with the rights of other states as far as practicable directly or through the competent international organization to observe, measure, evaluate and analyze by recognized scientific methods, the risks or effects of pollution of the marine 9 UNCLOS 1982, art. 211(3). 10 Philippe Sands,Op. Cit.,p. 438 . 11 International Convention for the prevention of pollution from ships (MARPOL) 1973 is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes. The MARPOL Convention was adopted on 2 November 1973 at IMO. The Protocol of 1978 was adopted in response to a spate of tanker accidents in 1976-1977. As the 1973 MARPOL Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument entered into force on 2 October 1983. In 1997, a Protocol was adopted to amend the Convention and a new Annex VI was added which entered into force on 19 May 2005. MARPOL has been updated by amendments through the years. The Convention includes regulations aimed at preventing and minimizing pollution from ships -both accidental pollution and that from routine operations -and currently includes six technical Annexes. Special Areas with strict controls on operational discharges are included in most Annexes. 12 14 and also state shall keep under surveillance the effects of any activities which they permit or in which they engage to determine whether these activities are likely to pollute the marine environment. 15 Enforcement of international rules, regulations and procedures to prevent, reduce and control pollution of the marine environment from activities shall be governed. 16 One of the solutions to solve the marine pollutions problem can be by calculating the costs incurred that were caused by vessels, and this method called polluter pay. 17

Polluter Pays Principle Under International Environmental Law
Polluter pays principle is a principle of international environmental law that is applied to those who intentionally or unintentionally pollute the environment by burdening them by paying for acts of pollution that have been committed. Polluter pays principle is one of the fundamental principles of modern environmental policies nationally and internationally, it means that the cost of pollution abatement should be paid by the polluters and not by the governments. 18 This principle was known as an economic instrument to maintain the balance between natural resources exploitation and economic activities. 19 The polluter pays principle was adopted and Polluter pays principle is an economic instrument that imposes costs on polluters, which can also be interpreted by instruments that require legal accountability for pollution. 23 The principle not only concerns the allocation of the cost of avoidance, removal and compensation of environmental impact. It also justifies measures of direct conduct (orders, prohibitions), incentive charge, and leads to claims which compel those responsible to do something or to claim concerning liability under civil The implementation of the polluter pays principles considers the regulation to be exceptional value in achieving immediate results or speeding pollution reduction needed to safeguard public health or abate unacceptable nuisance 25 and prescribes it as one of the main instruments for implementing the polluter pays principle. 26 The polluter pays principles application for accidental pollution, whereby administrative measures implemented by the authorities before an accident to prevent accidents in specific hazardous installations or taking remedial action should accidental pollution occur could be covered by the polluter pays principle. 27 In article 235 of UNCLOS 1982 confirms that each country is responsible for fulfilling international obligations to protect and preserve the marine environment. Each country seeks to provide a legislation system on how to obtain adequate and adequate compensation relating to damage caused by individuals or legal entities. Each country must implement international law governing the responsibilities and obligations of compensation as well as payment procedures. 28 Another International convention that also discussed one of the dispute resolutions of marine pollution is the Protocol of 1992 to Amend of Civil Liability Convention (CLC) for Oil Pollution Damage. The Civil Liability Convention is a convention that regulates the compensation for pollution of the marine environment caused by oil due to tankers. 29 The Civil Liability Convention was adopted to ensure that adequate compensation is available to persons who suffer oil pollution damage resulting from maritime casualties involving oil-carrying ships. 30 The convention stated that pollution damage is loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environmental other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement undertaken or to be undertaken 31 and stated 'Incident' means any occurrence, or series of occurrences 24  Polluter pays principle is a principle of international environmental law that is applied to those who intentionally or unintentionally pollute the environment by burdening them by paying for acts of pollution that have been committed. This principle was known as an economic instrument to maintain the balance between natural resources exploitation and economic activities. 36 The polluter pays principle also the principle that often spoken in international declarations, which then be included in international conventions and become the principle of international environmental law. 37 The use of the polluter pays principle besides responsible to pay the compensation, the judges can charge the polluter as an act, such as: 38 a. Installation and repair of waste treatment installation following the quality standards of One of the activities that can be categorized as the activity of marine pollution is marine connection or vessels activities. Marine pollution caused by vessels usually can be find in ships carrying oil as cargo or tankers. The pollution generally occurs due to oil spills from vessels, both coming from tankers or oil spills from the process of vessels dumping dirty oil contained in engines or In the general provisions of government regulation number 21 of 2010 article 1 (2) says that "Prevention of pollution from ships is an effort that must be made by the crew as early as possible to avoid or reduce pollution of oil spills in the sea, toxic liquid materials, dangerous cargo in packaging, sewage, garbage, and exhaust gases from ships into the water and air".
The institution that has a role for law enforcement is Badan Keamanan Laut (Bakamla) 43 . Bakamla with KLHK optimizes the application of article 90 paragraph 1 that stated "Government agencies and local governments that are responsible for the environmental sector are authorized to file claims for compensation and certain actions against businesses and / or activities that cause environmental pollution and or damage resulting in environmental losses". 48 The calculation for polluter pays principle in the case of oil spills can be calculated from whether the polluted area is a conservation area, whether the area is a fishing area, and is there any impact on the people living in the polluted area. All aspects are taken into account. Methodologically 42 Government regulation number 21 years 2010 about Marine Environment, art 3 (2). 43 The Maritime Security Agency (Bakamla) is a body tasked with conducting security and safety patrols in Indonesian territorial waters and Indonesian jurisdictions. Bakamla is a non-ministerial government institution that reports to the President through the Coordinating Minister for Political, Legal and Security Affairs. 44

Challenges In Implementing Polluter Pays Principle
Polluter pays principle can be used as an option in handling cases of marine pollution caused by vessels. However, there are several obstacles that occur in some parts, namely the ambiguity of which parties will enforce legal action for pollution that occurs at sea, human resources, and the payment.
The main obstacle to the application of polluter pays principle in Indonesia is the lack of clarity about the regulation of polluter pays principle in marine law. In the marine law polluter pays principle is not regulated in the "principle" provisions, but instead is directly placed in the provisions regarding disputes and the application of sanctions. 52 Polluter pays principle is not regulated completely in the marine law.
The ambiguity of the regulation regarding polluter pays principle also results in problems regarding which parties have authority in law enforcement. The issue of law enforcement at sea has been an institutional issue related to overlapping authority and weak coordination between institutions with different authorities. 53 Although Bakamla has the authority to carry out coordination and, the KKP and KLHK also have the authority to directly enforce the law. The ambiguity of regulations in the Maritime Law can be overcome by strengthening coordination with relevant ministries. 54 The overlapping of duties and authority over these institutions, many authorities are patrolling the sea in order to maintain the security of the sea with duties and functions that are not well enforcement so that the implementation of law enforcement is not optimal, especially for polluter pays principle due to the lack of understanding of the coordination of functions between state institutions.
Lack of human resources in handling sea cases is also an obstacle, so that accidents occur at sea do a long enough research to calculate losses. 55 The meaning by a lack of resources here are people who have knowledge of marine and expert on several fields such as coral reef experts and marine conservation experts, so that it takes a long time to examine the loss and will lose valid data on the damage.
In polluter pays principle the calculation of the damage that arises is very important. If data damage arises due to lack of validity it will be difficult to calculate exactly how much loss must be compensated. If there is pollution at sea, it is hoped that the solution and responsibility will be as fast as possible so that the damage does not become widespread.
In relation to regulation for the payment, there is no definite regulation regarding the calculation or formulation of how to calculate how much money polluters should pay when using polluter pays principle, so that experts in their field can calculate the losses incurred. As of the oil spill case, If the ship company has insurance, the insurance company they use will pay compensation for marine pollution. The obstacle that occurs here is if the company uses insurance that is in the country or national ownership then not all damages will be covered, but only in part. Meanwhile, if the company uses insurance that is abroad, then all damages will be borne entirely by the insurance. 56

IV. CONCLUSION
Equity crowdfunding is a form of new innovation funding sources outperforming the initial up-to-date information on fund collection services is only placed on the organizer's website or website.
The law is an instrument that provides objectives in the form of certainty, fairness and expediency, always developing following the community. In fact, it is not strange if the law grows behind the activities that arise and grow in society. The more widespread practice of fund raising services through equity offering (equity crowd funding), it is necessary to have more up-to-date legal instruments that dynamically follow the development of human life. Capital Market Law (UUPM) regulates public companies and public companies that offer securities that are both equity and debt to the public. While the Issuer companies in equity crowdfunding activities are neither public companies nor public companies, so the Capital Market Law as an umbrella law overseeing information technology-based stock offering activities to the general public is inaccurate and inadequate. For this reason, it is recommended that the Government and the Parliament immediately create a new Capital Market Law, which is not only adjusted to the OJK Law but also which houses the offering of securities in accordance with its development in the community.