Wednesday, 13 June 2007
Minutes of Meeting
Rapporteur: Gideon A. Putro (President University)
Edited by: Mohammad Reiza (Indonesian Youth Delegate for the 5th UNESCO Youth Forum 2007)
Session I:
(Moderator: Mr. Basuki Antariksa, S.H)
1. “Underwater Cultural Heritage according to Administration Law Perspective”
Speaker: H. Robby Robbani Wangsamihardja, SH (Indonesian Administration Law Expert)
The speaker was to represent Dr. Chandra Motik Pramono, SH, LLM that cannot come to the meeting due to her daughter’s graduation in the United States.
The explanation started with the potential of Valuable Goods Coming from Sunken Ships (BMKT) in relations to Maritime Law. He continues to explain the caused of shipwrecks from the ancient era that may include: dangerous trip and unpredictable weather condition as well as thefts and wars occur in the sea. Most of the time, those ships contain valuable goods, such as gold, coins, valuable ceramics and other cargos. Due to this fact, in the 16th century, UK started to recognize marine insurance and salvage. They want to protect their ships through mortgage, to give jurisdiction protection on the liability responsibility to the ship captain as well as its compensation. With high-risk condition of maritime insurance, all maritime insurance company goes into an association to take all the risks together. According to this cooperation, the insurance company will own abandonment goods like BMKT as a whole or partially in relations to Marine Insurance Act 1906 about Abandonment Freight Clause.
The ownership of underwater goods regulated by Indonesian administration law article 524 about how to claim the right of ownership. Definition of cultural heritage that also needs to be considered is the difference of the limitation of time of 50 years (Indonesian constitution) or 100 years (according to Paris Convention).
Indonesian Commercial law, article 545-568 regulate the right of ownership. For example art. 546 related to the finding of objects in the sea that may include cultural heritage. It regulates the state’s obligation to take care of these objects and to keep it as national heritage. However, in article 35, 1993, allowing the heritage to be traded. It may be caused by the cultural heritage that has economic value besides cultural and historical values. However, the sharing are still 50 % for the land owner (state) and 50% for the one who discovered those goods (wrecks exploration company).
Supervision on BMKT should consider public aspects (nationally and internationally). According to the article 568 this underwater heritage should be removed when its position interfere navigation passage. The sunken ships then to be auctioned or sold to the public. However, the exploration of abandoned metals from sunken ships are also still does not have a clear regulation.
In relations to Paris Convention, we can see that UNCLOS are closely related to our national law. The convention is not really contradicts our law regime, it is because we still have national interests on the BMKT especially economic side.
2. “Underwater Heritage in Relations to the Maritime Law”
Speaker: Prof. Dr. Hasjim Djalal (Indonesian Maritime Assembly)
He explains the underwater cultural heritage convention as a component of cultural heritage preservation. The speaker takes notes on the differences between historical and archeological that historical not necessarily archeological. Indonesian law also regulates cultural heritage but not explicitly said about underwater heritage. They have to protect the sites as well as its surrounding area.
Indonesian legislation did not recognize the difference of land and underwater heritage. Our national law only recognizes Cultural Heritage. Act No. 5/1992 art. 4 related to the all cultural heritage should be controlled by the state. It should be adjusted to the UNESCO Convention on UCH.
Indonesian law has so many terminologies, like territory of Indonesia, Indonesian law territory and jurisdiction territory of Indonesia. These matters should be clarified related to our national sovereignty, what are the differences. Indonesian legislation territorial sea, archipelagic based line and underwater territory.
Under the 2001 Convention to the right of coastal state recognize the EEZ and 12 miles from the coastal line that has no objects can be removed from the sea. In here, coastal states do not have absolute power to claim underwater heritage in EEZ. According to Maritime Law of EEZ, EEZ is not territory of the coastal state. However, coastal state has sovereign right on its resources. EEZ is actually for scientific research, fishery and environment conservation activities.
It is important to determine the area of implementation of the legislation. We are looking for the explanation; however Indonesian acts’ explanation only said “cukup jelas” or it is clear enough. However, we think it is not clear enough especially about territorial law.
What is the meaning of controlled by state (its components):
1. Looking after it
2. Management
3. License and permission
4. Supervision
We have to understand that underwater heritage is not only from shipwrecks, but also thrown away by people. The legislation should regulate this matter. Besides, we have to check whether these goods have economic values. Indonesian laws allow trading or auction activities with profit sharing. However, according to the convention these goods are not allowed to be commercially exploited (have no economic value).
Cultural heritage is not a resource because it does not have any economic values. Indonesian laws are still facing tremendous problems to manage authority. There is no clear authority for underwater heritage. Government Regulation (PP) No. 25/2000 regulates the distribution of the authority between central government, provincial government and city/regency government. In speaker’s opinion, it is just like peanut distribution in the table but they forget the peanuts under the table? Who will manage that?
We have also pay attention to the 12 miles baseline rules and beyond 12 miles rules. If central government manages beyond 12 miles, there is no clear local law or provincial law to regulate those below 12 miles.
The moderator wrapped up the presentation about Indonesian law that needs to be revised especially on the terminology and understanding of cultural heritage.
QA Session I:
1. Mr. Uka Tjandrasasmita
Questioning the ratification of the convention in regards to the regulation that has to be understood. Especially, related to the division of the sea territory due to the local autonomy for city government, provincial government and central government. Besides, international convention about the origin of the goods, to my understanding whatever located in Indonesia is controlled (dikuasai) by the government. Controlled by government means have full authority to manage. (To do in situ, excavate or to commercially exploited).
Our consideration to use 50 years as a basis to determine cultural heritage was that after 50 years buildings will be broken so that we don’t have enough time to preserve it. However, each country has their definition about cultural heritage.
What are our benefits and loss if we want to do ratification and refuse.
2. Ms. Ulrike Koschtial
This is to respond several issues raised by the speakers and Mr. Uka Tjandrasasmita. The requirement of an object to be considered as underwater heritage under convention supposes to sink or located underwater for at least 100 years. However, if Indonesia wants to keep 50 years will not be a problem. When the sites interfere navigation, it is up to the local government to make a regulation on it.
Related to the ship ownership, the convention does not regulate any issue of ownership. It is based on each country’s acts that regulate this matter. According to article 56 UNCLOS, to allow marine scientific research. Convention also answers the question for 2001 EEZ to have cooperation between countries. Related to the question why only 15 states want to ratify the convention because it is a new issue and some countries need some times to prepare the ratification like Mexico and China. One benefit from the ratification is to allow you to return your goods where it was illicitly goes out of the country.
Responds:
Water territory and jurisdiction territory regulation is the obligation of the lawyer to clarify the acts. Resources and natural resources are different. Natural resources are resources coming from nature, but resources are the resources that are not natural, BMKT includes in this terminology. If it is resources, it means having economic value, when it has economic value it will be traded. According to the Convention, it is not allowed.
Related to the 50 and 100 years, I will suggest 100 years because they will have higher value. In land, if we take 50 years it is acceptable because land heritage have more risks to experience vandalism or damage. I will suggest Indonesian law will consider 100 years only for underwater heritage.
Marine scientific research and hydrographic research is different. Marine research only observe the sea phenomenon as a big picture, however, hydrographic survey are very limited and specialized.
3. Mr. Yon
Questioning, Act No. 5, 1992 that public are not allowed to take cultural heritage out of the country. Related to Cirebon wrecks, after the excavation there are 32,000 pieces are less valued and they put it in the warehouse since 1999. How about this 8 years time is there any action to take? Why don’t we put it in museum?
I know from newspaper that auction of Cirebon wrecks are in Singapore. Don’t you think that it is supposed to be auctioned by State’s Auction Bureau (Balai Lelang Negara)?
Responds:
Our administration law that regulates the right of ownership of the goods, did not use terminology of treasures we are using BMKT. Art 556, of KUHD/Commercial Law would ask people to give an authorized evidence to claim the goods. Public have to proof its ownership.
Auction according to law should be in accordance to the local customs in the society. Where it was auctioned in Singapore, it was before we regulated the laws. Crime aspects will not be implemented before it is proven by the law.
4. Ms. Nani Hartiningsih
Terminology of treasure should be changed into BMKT because treasure will be interpreted of having economic values. National Committee should be closely related to cultural preservation and not economic value.
Sharing of 50/50 are related to goods not only the money. Through this system, it is expected that they will record the data. Can we consider this system of sharing as the goods not cash?
Responds:
The regulation said that 50 % sharing to be owned by the company, which I think it can be in form of goods, not only cash.
Due to limitation time, the discussion will be continued during break.
Session II
(Moderator: Dr. Ir. Sugiarta Wirasantosa)
1. “Underwater Archeology in Indonesia: Human Resources and Technical Equipment”
Speaker: Prof. Dr. Edi Sedyawati (University of Indonesia)
The speaker starts the presentation with the explanation of maritime archeology and underwater archeology. Maritime archeology includes all things related to maritime activities beneath and above the water that covers port, coastal cultural heritage, shipwrecks and technology of the ships.
Another thing is about Valuable Goods from Sunken Ships (BMKT). The speaker proposes that we are not only concerned about the content (cargo) but also the ruin (vessel) itself. The speaker continues to explain Indonesian condition as archipelagic country that needs infrastructure and capacity building aspects development in order to preserve existing data found in the sea and riverbed. She adds that management and treatment on underwater cultural heritage is not a matter of excavating all the findings up to the water surface. Accurate records on the data will become a reliable foundation for any kinds of interpretation in the future. In addition, after brought to the surface, all objects should receive immediate treatments in term of conservation.
The speaker suggests having a well-designed human resource development plan for underwater archeology fields to ensure a proper and responsible treatment for our underwater cultural heritage. The authority in the development of archeology RI should decide on the number of underwater archeologist to be produced within a period of time.
She also suggests the education system should be a form of cooperation between universities (archeological study) and government agencies in-charge for underwater archeology as well as RI Navy. It is advisable if we can provide scholarship programme for students besides adequate technical equipments during their study time.
2. “Foreign Cooperation Potentials on Management Underwater Heritage and its Relationship with International Conventions”
Speaker: Damos Dumoli Agusman, SH, M.A (Department of Foreign Affairs RI)
The speaker focused on the problems that may occur when we ratify the 2001 Convention. In the Sri Lanka’s meeting, we can see four regulations that only copy-pasted the Convention of China.
The speaker explains the process to ratify the treaty that needs so many steps to be passed. Government will need full support from all stakeholders. Furthermore, ratification can be issued in form of acts or Presidential regulations. We have to understand that to issue an act or regulation we have take into consideration the laws that regulate its process. Ratification of underwater convention means implementation of the regulation.
Ratification should be ensured that the treaty is safe for Indonesia in terms of security, politics, legality and technicality (no technical barrier during the implementation). Even though our national law is incompatible with the convention, we still can do ratification. We are going to adjust our national law accordingly before we declare ratification.
However, since it is an adoption convention, currently only 14 states ratifying the convention. The domestic debate on the preservation vs. prosperity also becomes the discouraging facts for ratification. Another thing is that procedural problem involving parliament that needs political drives and adjustment in our national law. Substantive problem also discourages the ratification due to no political consensus on the benefits of the convention as well as economic consideration to implement it. With those facts, national and systematic campaign should be done trough political drives, not moral drives.
QA Session II (Term I)
1. Mr. Uka Tjandrasasmita
Questioning Ms. Edi related to the division of water territory regulator of city, provincial and central government authority. The thing that needs to be considered is the limitation of human resources. How to overcome this problem?
Questioning acceptance and ratification. Ratification will need an intense socialization to the parliament and elite parties, because their approval is required.
Responds:
Our large water territory is incompatible with our number of divers, so that we need to have a system to ensure ‘subsidi silang’ or cross subsidy of divers. We can take the divers based on just-in-time system.
Acceptance and ratification is quite different in several ways that ratification contains understanding of reinforcing/authorizing the actions taken before. It is the second step after we do the first step, however, acceptance is more on the approval on something that we’re not involved in the formulation process, we only implement it.
2. Mr. Yon
According to research, there are around 463 locations of shipwrecks in Indonesia. In comparison to our total divers from all area of fields that reach 7,000 divers (only 10% are archeological divers) and not all of them are professional. I suggest having a one-roof training, and establishing a school that focuses on one point of view to ensure professionalism.
Act of transportation and public carrier that is directly approved and created so many problems in the implementation. I think we have to involve all stakeholders to discuss the ratification of 2001 Convention.
Responds:
The schools have to build capacity competency for diving. However, we have to also provide special education to archeologist, biologist to see the specific creature besides geological and deep-sea water energy science.
3. Mr. Hasim Zaini
Asking respond from Ms. Edy related to underwater archeology that needs to expand its scope into ports and maritime culture. Sri Lanka already adopted this system.
BMKT is actually to maintain the economic value of the goods that is the reason why we are focusing on the goods (wrecks) and not the ships. I suggest the SOP to include the ship and the site itself. For the training, based on our meeting in Sri Lanka, we decided to focus on building capacity to check an ideal location to start the training, as well as encouraging international cooperation. Before we focus on 2001 Convention, I suggest taking into consideration on the 1972 Convention about illicit trade.
Responds:
I’m happy that Sri Lanka has adopted the understanding of underwater archeology in their ratification roadmap. National committee should find the right terminology to replace BMKT that also involved not only the cargo but also the ship and other goods that disposed to the sea.
We are optimistic, to take the international convention into our domestic area. The 1971 Convention about Illicit Trade was not ratified because interfering the importance of power holders at that time.
QA Session (Term II)
1. Mr. Yunus Supardi
I am questioning our education and training system. What are the policies from Higher Education Directorate of National Education Department (Dikti) about underwater archeology? I suggest recommendation to Dikti to give more concerns on this matter.
Responds:
Training here is the whole education process includes the curriculum. We have to provide scholarship to attract students. To ensure capacity building, we work with RI Navy (ALRI), government agencies and universities. We do not have to wait for Dikti because this is part of archeology study. We just request the university to open specialized field under archeology about underwater archeology.
Hassanudin University expresses its readiness to join this programme. We have to facilitate them with lecturers and instructors to run the curriculum. We have to identify the potential to build a new specialized division. I agree to recommend Department of National Education RI on this matter.
2. Mr. Sabawi
In my opinion if we want to ratify the convention trough “force” it will create internal conflict. What we see in current situation is illicit transaction and illegal excavation; even developed countries also support the commercial exploitation of shipwrecks like France, China and GB that sell their BMKT which it works in contrary with the 2001 Convention. We suggest to not force the convention ratification, but to review its article one-by-one to avoid problems in the future. Can we ratify the convention by noting that we only can implement it partially?
Respond:
The potential conflict is only coming from the incompatibility of our national law. To handle this matter, we only have to ratify the convention or adjust our national law, because through ratification we have to amend our national law in accordance to the convention.
Partial implementation is impossible; the thing that will happen is that we have to fulfill all the requirements of convention. Off course we can not do everything at once but we can do it gradually.
3. Mr. Supratikno (UI)
I would like to comment Mr. Damos’s statement about the ratification that there’s a dichotomy of prosperity vs. cultural preservation. I suggest a win-win solution by defining the prosperity and preservation itself. What kind of prosperity (food) that you want to achieve and what kind of preservation (museum) you want to build? Our people do not have to eat expensive food; the most important thing is nutrition. We don’t have to build luxurious and sophisticated museum for our cultural heritage, the most important thing is representative.
Terminology of BMKT implicitly contains economic value. We have to also consider the ships and ruin; I think we have to change the terminology of BMKT by asking the forum do we have to change this term or not.
Personally, I suggest ratification even though we are not ready in some areas. At least we put this convention as a tool to improve our current law and other condition related to underwater heritage.
4. Mr. Dohardo
What are the roles of Foreign Affairs Department (FAD) in the ratification implementation? I am also questioning sea sand export regulations to force extradition agreement. I cannot see the involvement of FAD in National Committee why we never have any suggestions to improve our BMKT sales?
In my opinion, we have to put our prosperity first then the preservation will follow. It also happens in Germany and USA where they also experience environmental problem in the past. After they achieved their prosperity, they focused on cultural preservation.
Respond
Our Multilateral Directorate Office will asses our national interest toward the convention ratification. They will propose the action that we have to take towards the agreement or convention.
Related to sea sand, we are actually concerned about the international border with Singapore not only the extradition agreement. When they want to do coastal reclamation, it will lessen our territory. It is impossible for us to market our cultural products because it will contradict the convention.
