Tracing the ‘Cultural’ Element of Small Fisher’s Definition in International Legal Frameworks and its Relevance to Small-fisher Legal Definition in Indonesia Laws

Varied and un-uniform terminologies and definitions refer to subsistence fishing in Indonesia’s legal framework undermine the efforts to recognize and to protect small-fisher. Variety of terminologies and definitions of small-scale fishers are found in different pieces of legislation, spanning from Job Creation, Fisheries, Regional Autonomy, and Protection and Empowerment of Fisherfolks. This is impacting on how different authorized bodies perceived small-scale fishers and granted their rights. Therefore, this paper would assess it from the perspective international laws, tracing ‘culture’ as an important element of small-fisher from arbitration awards, Law of the Sea Convention 1982 (henceforth the LOSC 1982) and its implementing agreements, FAO Fisheries Laws, and the bilateral agreements under Article 51 paragraph (1) the LOSC 1982. Using doctrinal method, this research found that cultural element of artisanal fishing has been acknowledged in international legal frameworks, could be seen in the concluded bilateral agreements on the recognition of traditional fishing rights (henceforth TFR) in archipelagic waters, the South China Sea and Eritrea/Yemen arbitration awards, as well as non-binding FAO fisheries instruments. Therefore, to be consistent, Indonesia’s legal definition on artisanal fisher shall adopt the same approach.