15.30 The Consequences of Adat Law on Indonesia’s Heritage Regime
The 2003 UNESCO Convention on ICH Safeguarding (ICHC) remains the primary instrument in the international protection of intangible cultural heritage (ICH). Under the Convention, safeguarding responsibilities are incumbent upon the states parties. However, the Convention acknowledges the central role of the communities. Article 15 stipulates that the communities who create, maintain, and transmit elements of ICH must be ensured “the widest possible participation” by the state in the management of what is essentially their heritage. This Article represents an elusive member of the equally elusive family of cultural rights: the right to participate in cultural life. It becomes unjust for the state to conduct any safeguarding activity as mandated by the Convention without having obtained the relevant communities’ approval beforehand. Therefore, once the communities have been identified, they must be enabled to partake in safeguarding activities.
Indonesia is a cultural mega-diversity and state party to the ICHC. The 1945 Constitution recognizes as part of the national legal system the Indigenous Adat Law, which is the unwritten customary law living and upheld by Adat Law Communities (Masyarakat Hukum Adat or MHAs), the indigenous peoples spread all over the Indonesian archipelago. However, despite the “living” nature of Adat Law, its enforceability today depends on whether or not it is recognized in the written laws. Identification of these MHAs under Indonesian legislation, therefore, becomes a key issue particularly pertinent here, since Regulation of the Minister for Education and Culture No. 106 of 2013 on ICH expressly designates MHAs as the Indonesian interpretation of the term “communities” under the ICHC. This presents a complication, because the legal recognition of MHAs entails requirements which define them in a narrower sense as compared to the definition of “indigenous peoples” under international law or, specifically, of “communities” under the ICHC.
Through a study of the relevant legal documents, the first part of this paper will look at how Indonesia’s recognition of Adat Law reinvents its national implementation of the right to participate in cultural life; and renders sui generis its national regime for the safeguarding of ICH. It will systematically place MHAs in Indonesia’s safeguarding activities at the national level (for instance, in the drawing up of inventory; undertaking of ICH studies and capacity-building; and adoption of legal, technical, administrative, and financial measures) as well as at the international level, most notably in the nomination of an ICH element for inscription on the ICHC’s international lists: the Representative List of the ICH of Humanity; and the List of ICH in Need of Urgent Safeguarding.
The second part will highlight the fact that the express designation of MHAs to interpret “communities” brings forth a problematic implementation of the right to participate in cultural life in Indonesia, since there are numerous entities that indeed qualify as “communities” under the ICHC but are not legally recognizable as MHAs. Having been disqualified from obtaining the official title, these de facto communities are deprived of their right to participate in safeguarding their ICH. So far Indonesian law has recognized MHAs in specific respects—for instance, land use, forestry, local governance, and even ICH—by defining them in context-specific requirements. Nevertheless, no community has been pronounced as MHA under the ICH regime, thereby rendering their factual safeguarding participation legally impractical.