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The need for clarification on HP-3 rights

Thursday, May 14, 2009

I published an article in today's Jakarta Post:

Law 27/2007 enables private ownership of coastal zones through a system called HP-3 (which governs the right to commercialize coastal waters). The idea behind this system is to allow the exploitation of the currently neglected, but potentially profitable, 81,000 thousand kilometers of Indonesian coastline and its 12 mile wide territorial sea.

A HP-3 grants ownership to water columns (above the seabed to the water surface) in Indonesian territorial zones. In most cases, the Law stipulates that HP-3s will be granted by local governments. The Law says that the first period of ownership is granted for a period of 20 years but can be extended. As the law does not impose any limitation for extension, it is presumable that HP-3s could be owned perpetually. It is also worth noting that a HP-3 certificate can be used as collateral to secure a loan.

We know from theory that in order to be functional, property rights must fulfill the "3Ds" rule: definability, defensibility and defeasibility. Property rights can only be efficient within these three aspects, and only if transaction costs are low.

With respect to definability, the Law stipulates that a HP-3 covers a three dimensional space from the seabed up to the surface. This would mean that the seabed falls under another system of regulation. There is however, some interface between the seabed and the water column, and this becomes an issue in sea mining operations. If there is an overlap of ownership between the two (the seabed is granted to an oil company and the HP-3 on the surface is granted to an aquaculture company, for example).

A way of preventing this problem is by coordinating the awarding of property rights between the two areas. That is to say, the awarding of any marine mineral resources exploitation license by the central government must be coordinated with local government.

In another scenario, if both a seabed exploitation licenses and a HP-3 for the adjacent surface are owned by the same entity, disputes could occur from one area to another, which could dilute the value of the property of the neighboring HP-3 owner. One way to anticipate this is for the local government to stipulate which area is used for what. Zoning mechanisms must be very solid in order to prevent property rights disputes.

The law also does not define exact rights within a water column. A water column may be an area passed-though by highly migratory species protected under international law, which therefore cannot be harvested, even by HP-3 owners. A way to address this issue is by clarifying the dos and don'ts for HP-3 owners when implementing regulations.

Another significant problem is that marine boundaries constantly change because of natural phenomenon. HP-3 limits could be confused if the baseline used to measure a sea boundary also changes because the sea level rises. I am not certain as to what mechanism could be used to adapt to this problem.

As for defensibility; defending a property rights in the ocean is relatively more difficult than on land. On land, one can install fences in order to defend and mark their property. This is not possible in the sea. Nets can be used, but if used too extensively they could capture protected species. The surface structure could be used, but that should not hinder navigation for vessels passing through the area. And in any case, it is difficult to exclude traditional fishermen from fishing in HP-3 zones, as they may not be equipped with GPS.

HP-3s are interestingly defeasible enough. Defeasible basically means that the property rights can be transferred. In theory, a property right must be defeasible in order to enable exchange, so that a market can develop. The Law does stipulate that HP-3s can be transferred or encumbered with a mortgage. It is not yet clear which government department would be responsible for the registration of the mortgage. As long as the government has not clarified any institution responsible for the mortgage registration, the idea of mortgaging the sea will not be enforceable. Mortgage is an important part of the whole scheme, as it allows banks and other investor to enter and finance the project.

As we can see from the above explanations that property rights in the sea could be very costly in terms of its definability, defensibility and defeasibility. A huge amount of information would be required to define the property rights. Sonar imaging, GIS interpretation or anthropological studies on the existence of traditional fishing rights would expend a huge of amount of cost.

But these things are essential because, without a clear definition of property rights, future disputes may occur. Defending property rights is also difficult and the costs will be borne by the owners. If the cost of defending the property rights is more than the benefit of exploiting it, then it will not be a worthy investment. As for defeasibility, there is a high cost for institutional set-up. An institution will need to be established in order to maintain marine cadastre and administer HP-3 titles and their encumbrances.

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Preemptive Strike

Sunday, May 10, 2009

I found my old article about preemptive strike (2004). The article was written when John Howard (who, at that time was racing for another period of premiership) issued a statement that he will employ preemptive attacks to terrorist bases, when necessary. As you remember, the war on terror was the hype in 2004.

Australia had been active in the regional diplomacy, leading a multinational armed forces responsible for the security of post-referendum East Timor. Meanwhile terrorist activities in Indonesia was reaching its peak period (The Bali Bombing, Marriot and the Bombing of Australian Embassy). Morever, preemptive strike has always been Bush'es doctrine. So Howard's statement was important in this context. Implicitly, it appears that he wanted to show that Aussie has some muscle to maintain security in South East Asia.

Some quote:
Australian Prime Minister John Howard recently said he would not hesitate to order preemptive strikes against terrorist bases overseas. The statement was further clarified that such an attack would not be directed against "able" countries such as Indonesia.
However, this statement would seem to require a serious response, as this was not Howard's first concerning the issue.
The spread of "preemptive-ism" across the region is something of concern, since a preemptive strike will likely raise distrust among nations, provoke international anxieties and undermine the UN's role in maintaining peace and security.





The Boss is in Time 100

Friday, May 1, 2009

SBY made it to Time 100's, "Leaders & Revolutionaries" #9:

The time is right for Indonesia, as the world's most populous Muslim nation, to assume a more prominent position in Asia and throughout the Muslim world. In response to President Obama's warm overtures to Muslim countries for a new phase in relations with the U.S., Yudhoyono can take the lead and chart a new course for the region.

I didn't wrote that, it's Anwar Ibrahim's remark for Time magazine.

Just a perfect timing.

Nice job people... :p

Disclaimer: I am not trying to campaign anything here.

Convergent Regulatory Framework?

Friday, March 27, 2009

Does nanotech regulation needs to be standardized or can state develop their own laws about nanotech? I am more into a standardized framework, although of course, in reality there is always a gap. Read Lloyds report here.

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Transparency in water utilities

Monday, March 23, 2009

I argued in my newspaper op-ed that the natural monopoly character of water services justifies its transparency. The purpose of water services regulation is to reduce natural monopoly and decreases information asymmetry. Transparency mechanisms work in that direction by allowing information to be interpreted by competing interest groups, thereby enhancing the regulator's capacity in deciphering information and producing more qualified decisions. Read more.

Economists have agreed that in every regulatory case, governments can never attain the same level of information as the company. Companies always know more about their own situation compared with the governments that regulates them.

The danger with this information asymmetry is that companies may inflate their actual costs and pass it on to consumers to pay. They may choose to deal with particular suppliers related to them (possibly a subsidiary of their parent company) rather than other suppliers offering lower prices.They may refuse to expand their network to slums or scarcely populated areas citing the reason of lack of capacity, although they actually can. Or, companies may conflate the number of leakages to add to the cost component.

As a result, governments must then be very well-equipped to be able to regulate water companies effectively; they must have all the technical, financial and legal auditing capability to discern and decipher information about water utility. The problem in most developing countries is that governments lack these regulatory capacities both in terms of human resources, technology and budget.

One way to mitigate this problem is by introducing transparency to the sector. Stakeholders can complain if they know that the company prefers to strike a water supply deal with real estate developers rather than invest in poor areas.

Potential suppliers can complain that they have been discriminated against, despite their ability to supply with cheaper costs. With transparency, governments can have help in interpreting information from other water companies, creditors, suppliers, consumers, NGOs, academia, the press or other interested parties.

However, it is difficult to make water utility companies agree to transparency. This response is natural as it is always better for them to conceal information than to be transparent.
Companies protect their information through confidentiality clauses in contracts and through trade secret laws. Freedom of Information laws typically do not work as they provide a blanket exception to disclosure when it comes to commercial confidentiality.

The US Rules the Wave?

Sunday, March 22, 2009

The US (and not the brits) will rule the wave. US will become the next Ottoman Empire. The next 100 years will be all about the United States. Europe will decline. Space-based solar power will be developed. Stratfor founder George Friedman said on the launching of his new book.



Hat tip to Chris Phoenix at CRN

Nanotech Law Webinar

Saturday, March 21, 2009

KHK Law is holding webinars starting next month:

All webinars will be conducted from 1:00 p.m. – 2:30 p.m. EST

April 1, 2009 Legislation, Regulation and Small Business – 2009 Outlook

June 4, 2009 Nanotechnology in the Marketplace

Sept. 10, 2009 Nanotechnology, Food and Food Packaging

Nov. 19, 2009 Product Liability and Nanotechnology

The cost for Individual Webinar is $145 and $495 if you signed up all four. More detail here.