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Resisting Internationalism?

The Evolution of Indonesia’s Shipwreck Legislation

In: Bijdragen tot de taal-, land- en volkenkunde / Journal of the Humanities and Social Sciences of Southeast Asia
Author:
Natali Pearson The University of Sydney Australia Sydney

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Abstract

This article reviews historical legislation relating to the management of shipwrecks in Indonesia, examining issues relating to terminology, division of authority, and implementation. It focuses on the evolution of Indonesia’s commercial salvage legislation, from its introduction in 1989 to its abrupt cessation in 2010, when a moratorium was introduced. While the moratorium was interpreted as a sign that Indonesia was moving closer to internationally accepted principles regarding the management of underwater cultural heritage, the introduction of a new law unrelated to maritime heritage has instead disturbed this anticipated trajectory. Designed to stimulate job opportunities, Law No. 11/2020 on Job Creation has, perversely, raised the prospect that the moratorium will be repealed. As this article demonstrates, the changing conceptualization of the value of shipwrecks and their cargoes remains a live issue in Indonesia, reflecting unresolved tensions about its identity as a maritime nation.

Abstract

This article reviews historical legislation relating to the management of shipwrecks in Indonesia, examining issues relating to terminology, division of authority, and implementation. It focuses on the evolution of Indonesia’s commercial salvage legislation, from its introduction in 1989 to its abrupt cessation in 2010, when a moratorium was introduced. While the moratorium was interpreted as a sign that Indonesia was moving closer to internationally accepted principles regarding the management of underwater cultural heritage, the introduction of a new law unrelated to maritime heritage has instead disturbed this anticipated trajectory. Designed to stimulate job opportunities, Law No. 11/2020 on Job Creation has, perversely, raised the prospect that the moratorium will be repealed. As this article demonstrates, the changing conceptualization of the value of shipwrecks and their cargoes remains a live issue in Indonesia, reflecting unresolved tensions about its identity as a maritime nation.

1 Introduction

Sprawled across the maritime worlds of the Indian Ocean, the South China Sea, and the Pacific Ocean, the Indonesian archipelago has been at the heart of international trade and exchange for centuries. Some 17,000 islands are scattered across its territorial waters, which extend up to 3.2 million square kilometres (Farid 2014). The length of Indonesia’s coastline exceeds 95,000 kilometres, making it one of the longest in the world (Butcher and Elson 2017). Within this ‘ocean sewn with islands’ lie the remains of ancient and modern shipwrecks, their presence attesting to long and enduring histories of seafaring, navigation, migration, conflict, livelihoods, tourism, and other human encounters with the sea (Lapian 2009). These wrecks are characterized by their abundance as well as their diversity.

The Indonesian government’s approach to managing the shipwrecks in it waters has fluctuated. Despite declaring independence from the Dutch in 1945, it was not until 1989 that Indonesia introduced legislation that directly addressed the question of how to manage the shipwrecks—and their cargo—in its territorial waters.1 In that year, a Keputusan Presiden (Presidential Decision) established a commercial survey and salvage system that both evolved and endured for over two decades.2 Commercial salvage ceased in 2010 with the introduction of a temporary moratorium prompted by the introduction of a cultural heritage law. In 2016, that moratorium became permanent, in the process bringing Indonesia closer to international standards regarding the protection and preservation of shipwrecks and other forms of underwater cultural heritage. But a new and ostensibly unrelated law has reintroduced the prospect of commercial salvage in Indonesian waters. While intended to promote investment and create jobs, Law No. 11/2020 on Job Creation (Job Creation Law) has had the consequence of effectively repealing the moratorium.3 This policy reversal has been interpreted by many in Indonesia and elsewhere as a backwards step. Supporters, however, argue that the reintroduction of commercial salvage represents the best option for Indonesia in protecting and preserving the wrecks in its waters.

This article surveys the legal framework relating to shipwrecks in Indonesian waters and provides historical context to the changes proposed by the Job Creation Law. It suggests that Indonesia’s ambiguous regulatory framework reflects profound and ongoing disagreement within and beyond government about how such wrecks should be valued: as heritage objects of historical and archaeological significance, as investment opportunities, as marine resources with environmental value, or some combination thereof. By examining Indonesia’s long history of commercial salvage, a clear connection is evident between the new Job Creation Law and Indonesia’s early salvage laws. But, as this article demonstrates, the changes wrought by the Job Creation Law depart in a number of significant ways from the policies of the past. In particular, this new law suggests a new resolve within certain parts of government to pursue commercial salvage, in the process distancing Indonesia further from international standards regarding the management of underwater cultural heritage. At the same time, however, Indonesia’s Mahkamah Konstitusi (Constitutional Court) has called into question the constitutionality of the Job Creation Law itself, further complicating the potential implications of these proposed reforms.

The significance of this study extends beyond Indonesia, and beyond heritage studies. The historical flux and present-day uncertainty that pervades shipwreck management approaches in Indonesia is of relevance to scholars working on underwater cultural heritage in the region and around the world, where such heritage faces threats ranging from coastal and seabed development, ocean acidification and warming, looting and salvaging, and other destructive activities. Meanwhile, scholars of Indonesia’s legal system will recognize the poor implementation and lack of stakeholder coordination that has accompanied the country’s decentralization process since 1998 and is now evident across a wide range of sectors. This study also makes an important contribution to fields as diverse as sociology, history, and international relations, with the tensions surrounding shipwreck management shedding light on how heritage is used to express and conceptualize national identity. Finally, scholars interested in marine sustainability, tourism, and livelihoods will be interested in the evolving conversation that has accompanied shipwreck management in Indonesia, in particular the growing awareness that these sites have the potential to bring longer-term socio-economic benefits to coastal communities.

2 A Legal Vacuum: The Geldermalsen as Turning Point

Internationally, laws and regulations relating to the management of underwater cultural heritage have tended to lag behind those addressed at terrestrial heritage. It was not until the 1980s that many nations, including Indonesia, began to attend to the shipwrecks and other heritage in their waters. Indonesia’s efforts in this regard were, however, not directed at retaining sites in situ; rather, Indonesia introduced laws and regulations that facilitated the removal of valuable objects from shipwrecks. These policies were as much about profit as they were about protection.

The introduction of Indonesia’s first regulation on shipwreck management was prompted by the recovery of the Geldermalsen in the mid 1980s. This VOC (Vereenigde Oost-Indische Compagnie, Dutch East India Trading Company) vessel was transporting tea, porcelain, and gold from China to the Netherlands when it sank near the Riau Islands in 1752 (Tahir 2014; Gautama 2012). In 1985, a team led by Michael Hatcher recovered cargo from the wreck. Objects salvaged—including gold ingots and over 150,000 pieces of porcelain—were auctioned by Christie’s in Amsterdam in the following year. Marketed as ‘The Nanking cargo’, the auction raised more than £ 10 million (US$ 16 million). Many pieces were sold for ten to fifteen times the catalogue estimate. Archaeologists and museums expressed concern that these high prices would lead to the ‘wholesale destruction’ of other wrecks (Miller 1992:127). Criticism was also levelled at the ‘cynical’ nature of the arrangement between Hatcher and the Dutch government, which saw the Dutch Ministry of Finance receive 10 % of the auction profits (Green 1988:359). There is no evidence that a similar arrangement was made with the Indonesian government (Nayati 1998).

At the time of the Geldermalsen’s salvage, Indonesia’s extant heritage law dated to the Dutch colonial era (Fitri and Ahmad 2017; Fitri, Ahmad, and Ahmad 2015), Indonesia having inherited Dutch law as it stood when independence was declared.4 The other regulatory instrument in play at the time was the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which Indonesia ratified in 1985 through Law No. 17/1985.5 Although UNCLOS made marginally more provision for archaeological and historical objects found at sea (Lee 2003:21), only two of its articles address underwater cultural heritage directly (O’Keefe 1999). As a signatory of UNCLOS, Indonesia had special rights to the exploration and use of marine resources in its territorial waters (12 nautical miles from the baseline, usually the mean low-water mark) and its Exclusive Economic Zone (extending 200 nautical miles from the seaward side of its territorial waters). However, Indonesia’s early legislative reforms in relation to maritime issues were focused on establishing sovereignty and exclusive economic zones under UNCLOS and gave minimal consideration to archaeological or historical objects.

The salvage of the Geldermalsen was a wake-up call for Indonesia, revealing the inadequacy of its heritage legislation and the vacuum around the legal ownership and management of shipwrecks. At the same time, the ‘eye-opening’ high prices achieved at auction for the Geldermalsen cargo had revealed the economic value of historic shipwrecks and their cargoes in Indonesian waters (Tahir 2014). The salvage and sale of objects from the Geldermalsen led the Indonesian government to realize that ‘there was a need to regulate the disposition of archaeological/historical objects found at sea’ (Nayati 1998). Frustrated by its inability to prevent the salvage and sale of objects from the Geldermalsen or to capitalize on their economic value, Indonesia responded in 1989 by introducing new legislation that asserted state ownership over wrecks in its territorial waters.

3 Legislating Shipwreck Salvage

It was in response to this case that Presidential Decision No. 43/1989 on the National Shipwrecks Committee—the first regulatory instrument that directly addressed shipwrecks and their cargo—was issued by President Soeharto.6 This Decision legalized the salvage and utilization of valuable objects (benda berharga) from ‘VOC, Portuguese, Spanish and World War II shipwrecks’ in Indonesian territorial waters (Article 1). It did not address the management of shipwrecks that fell outside these categories.

The first article of the decision defined a number of key terms. Valuable objects were those that had historical, cultural, economic, and ‘other’ value. Salvage was the research, survey, and recovery of these valuable objects from sunken ships. Utilization entailed the sale of objects and other uses for the benefit of the government. Article 2 mandated the establishment of a National Shipwrecks Committee, which was tasked with, inter alia, regulating, managing, and making recommendations about private salvage companies, including issuing survey and salvage permits (Article 3).7 This was a complex system involving many different actors. The coordinating minister for political and security affairs was ex officio chair of the National Shipwrecks Committee, while the vice-chair position was held ex officio by the minister of education and culture (Article 5). Committee members included representatives from nine different government ministries.8

Presidential Decision No. 43/1989 was accompanied by regulations issued by the National Shipwrecks Committee that focused on technical aspects of its implementation. Several ministries represented on the National Shipwrecks Committee also issued regulations, including Finance, Transport, and Education and Culture. Some of these implementing regulations were closely aligned with the spirit and intention of Presidential Decision No. 43/1989; Ministry of Finance Decision No. 1260/KMK03/1989, for example, sought to regulate profit sharing arrangements between the government and salvage companies; and Ministry of Transport Decision No. KM23/1990 specified procedures for salvage and underwater work, including a requirement that foreign companies partner with local enterprises and seek permission to do so.9 Others, however, were less aligned, and in fact seemed to act against the presidential decision.10 Ministerial Decision No. 0843/O/1989, issued by the Ministry of Education and Culture, contained provisions that sites were to be excavated to accepted archaeological standards, and for objects with ‘significant meaning to archaeology, history, and culture’ to be retained and distributed to local and national museums for education and research.11 It was difficult, if not impossible, to reconcile the ministerial decision’s emphasis on archaeological standards and distribution of objects to museums with the distinctly more commercial focus of the presidential decision. In any case, Ministerial Decision No.0843/O/1989 appears to have been widely disregarded by the National Shipwrecks Committee, and the Ministry of Education and Culture had no enforcement mechanisms at its disposal. As a result, these provisions were poorly implemented and rarely enforced (Gautama 2012; Flecker 2017). Those salvage companies that did document sites ‘did so at their own volition. No artefacts were kept for museums’ (Flecker 2017:4).

Under its new commercial shipwreck management system, Indonesia asserted automatic ownership rights over shipwrecks in Indonesian waters. Companies were required to first apply for a survey permit; if the survey identified a site of interest, the company then needed to apply for a salvage permit. Survey permits were limited to areas of up to a radius of 10 nautical miles, and salvage permits to areas of up to a radius of two nautical miles (these were updated in 2000 to three miles and one mile respectively).

Commercial salvors active during the period report that implementation did not always follow the regulations. Salvage companies had to pay a ‘substantial’ deposit before work could start (Flecker 2017:4). Permission had to be obtained from, and fees paid to, as many as 22 different government departments, as opposed to nine, as the presidential decision specified (Flecker 2002). Criteria for issuing licences were poorly defined, and largely determined not by professional accreditation or qualifications but by whether commercial entities could afford them (Flecker 2011). The inconsistencies between implementation and the regulations, such as the ability of the government to unilaterally determine fees payable, was due in part to the lack of independence between the courts and government and the fact that, prior to 1991, there were no administrative courts in Indonesia (the establishment of which contributed to establishing the rule of law).

The reactionary and experimental nature of these early shipwreck policies was evident. Indonesia, like many countries around the world, was playing catch-up to the abundance of heritage in its territorial waters. But it was charting its own course, in the process creating a regulatory framework that was confusing and contradictory. Rather than streamlining its shipwreck management policies while they were still relatively nascent, however, Indonesia instead introduced another new law.

4 Indonesia’s Evolving Shipwreck Management Policies

Three years after enacting a law to regulate the survey and salvage of shipwrecks, Indonesia introduced its first legal instrument addressing cultural heritage objects (benda cagar budaya). Law No. 5/1992 on Cultural Heritage Objects was, at the time, the only law to substantially regulate activities regarding ownership, discovery, exploitation, research, conservation, preservation, salvage, and use of cultural heritage (Gautama 2012).12 Although the new law addressed heritage objects in the ocean—at least in a general sense—it was not introduced in response to Indonesia’s new shipwreck policies. Instead, it is better understood as part of a broader push to update laws and regulations that had not been updated since the Dutch colonial period.

Implementation of Law No. 5/1992 was the responsibility of the culture portfolio, which moved between a range of different national ministries including Education and Tourism.13 The new law asserted state ownership rights over cultural heritage objects within Indonesia’s jurisdiction, including both human-made and natural objects within both the terrestrial and maritime domains. It considered cultural heritage as part of the wealth of the nation and defined such heritage as that which was of ‘historical, scientific, and cultural’ significance, and more than 50 years old (Article 1). Objects found within Indonesian jurisdiction were to be reported to the government within 14 days of discovery and subjected to examination (Article 10). If the objects were considered to be cultural heritage, they were declared state property; if not, the finder could own them (Article 10). Exceptions could be made for the private ownership of family heirlooms (warisan) or objects that were common or duplicates (Article 6(2)). Searching for cultural heritage objects, for example by diving, was forbidden without government permission (Article 12), through the Ministry of Education and Culture. This new heritage law made no provisions for circumstances in which the original owner of a cultural heritage object appeared and claimed ownership; nor did it provide for a dispute settlement mechanism (Nayati 1998:172). It also left the scope of Indonesia’s jurisdiction open to interpretation. From a regional and international perspective, the new heritage law lacked ‘any sense of drive towards co-operative endeavours with other countries concerning the protection of archaeological / historical objects found at sea’ (Nayati 1998:165).

The introduction of Law No. 5/1992 was followed shortly thereafter by Presidential Decision No. 25/1992, which regulated profit-sharing arrangements between the Indonesian government and commercial salvage companies and asserted that cultural heritage objects were not to be sold (Article 1(1)).14 Together with the provisions in Decision No. 1260/KMK03/1989, Presidential Decision No. 25/1992 created an economic incentive for the government that all but guaranteed no objects recovered from shipwrecks would be deemed to have cultural heritage value. This is because salvaged objects considered to have cultural heritage value could not be sold, and instead had to be submitted to the state. Meanwhile, the rest of the recovered objects—that is, those deemed not to be of cultural heritage value—were permitted to be sold at auction, with 50 % of the gross proceeds earmarked for the government and the remainder allocated to the salvage company (Article 2(2)). Since the Indonesian government took 50 % of the proceeds of sale regardless of licensing and operating costs, salvage companies were motivated to generate large profits to cover their costs (Flecker 2017:4; Liebner 2014:14).

The legislation increasingly revealed a growing emphasis on the relationship between heritage and the nation, and the value of the former to the latter. Government Regulation No. 10/1993 specified that cultural heritage objects had to have certain characteristics to be declared state property, one of which was that they needed to be of great historical, scientific, and cultural value for Indonesia (Article 3(1a)).15 This provision seemed to suggest that the type of objects would determine ownership rights. Precisely what ‘for Indonesia’ meant was not defined; was it suggesting that, to be of historical, scientific, and cultural value ‘for Indonesia’, a ship and its cargo had to be Indonesian? Were vessels and objects that originated elsewhere also of value for Indonesia (Nayati 1998:155)? These questions had practical implications for how wrecks were managed. More broadly, they went to the heart of how Indonesia viewed its place in the world: either as somewhere that enabled connection across time and space, in which the presence of foreign vessels and cargoes confirmed the centrality of Indonesia within global maritime histories, or in nationalistic—even chauvinistic—terms that viewed only those objects and vessels that originated in Indonesia as significant.

The relationship between Government Regulation No. 10/1993 and Presidential Decision No. 25/1992 was ambiguous. For the state to assert ownership over a cultural heritage object, the object had to be of great historical, scientific, and cultural value for Indonesia; and, being a cultural heritage object, it could not be sold. What remained unclear, however, is how the state could assert ownership over objects that did not meet the ‘historical, scientific, and cultural value for Indonesia’ criteria. If an object was not considered to meet these criteria, did that mean it could be privately owned—and did that imply that the state had no authority to assert ownership over it? And what right, therefore, did the state have to assert a claim for 50 % of the sale price of such objects? Who did have that right?

Indonesia grappled with these questions for over two decades, responding by introducing new laws and bureaucratic arrangements that sought to better define and articulate how shipwrecks and their cargoes should be managed. Presidential Decision No. 107/2000 shifted responsibility for chairing the National Shipwrecks Committee to the new Menteri Eksplorasi Laut dan Perikanan (Ministry of Marine Exploration and Fisheries), established in October 1999 and the predecessor of today’s Kementerian Kelautan dan Perikanan (Ministry of Marine Affairs and Fisheries).16 Deputy-chair responsibilities were assigned to both the Menteri Pendidikan Nasional (Ministry of National Education) and Kepala Staf Tentara Nasional Indonesia Angkatan Laut (Chief of Staff of the Indonesian Navy) (Article 5(1)).17 The committee grew, with representatives from ten agencies (Article 5(1)).18 These administrative changes impacted object management processes and procedures, and had implications for the transfer of archives from the secretariat office and objects from one warehouse to another (Ridwan 2014). While Presidential Decision No. 43/1989 had addressed VOC, Portuguese, Spanish, and World War II shipwrecks, Presidential Decision No. 107/2000 also applied to shipwrecks older than 50 years from the VOC and the Netherlands, as well as English, Japanese, Chinese, and ‘other ships’ (Article 1). The new decision also clearly defined Indonesia’s territorial jurisdiction over the waters of Indonesia, the exclusive economic zone, and the continental shelf. An associated decision from the Ministry of Marine Affairs and Fisheries (No. 39/2000) provided technical guidance.19

Complicating matters further were changes to the division of Indonesia’s marine space as part of the decentralization process, undertaken as part of Indonesia’s post-1998 transition to democracy. No longer were national authorities solely responsible for shipwreck surveys and salvages in Indonesian waters—by 2000, these responsibilities had been devolved to the regencies and municipalities (up to four nautical miles from shore) and the provinces (4–12 miles from shore). The central government, meanwhile, maintained jurisdiction over shipwrecks 12 miles or further from shore (L. Pudjiastuti and Butar-Butar 2010). These divisions gave rise to conflicts between the different local, regional, and national bodies, with confusion about who was responsible for what, or how the proceeds of sale were to be shared (Tjoa-Bonatz 2016; Flecker 2017). These conflicts were by no means limited to shipwreck management but were in fact playing out across many sectors as Indonesia moved towards a more decentralized model.

More amendments were forthcoming, each adding to the complexity of the regulatory landscape while also revealing the ways in which shipwrecks—and efforts to manage and benefit from them—seemed to ensnare an ever-increasing proportion of the Indonesian bureaucracy. Presidential Decision No. 19/2007 expanded the definition of valuable objects to include objects with historical, cultural, scientific, and economic values (Article 1) and reversed the 2000 decision to appoint two deputy chairs, with the deputy position reverting to the Ministry of Culture and Tourism.20 The membership of the National Shipwreck Committee was expanded to include the Navy and the Police; fifteen ministries and state organizations were now involved, some with multiple representatives (Article 6).21

The growing number of actors attested to this being not only a complicated regulatory environment, but a profitable one at that. Presidential Decision No. 19/2007 was amended by Presidential Decision No. 12/2009 and associated regulations.22 The definition of valuable objects changed again, to objects with historical, scientific, and cultural values (Article 1)—that is, economic value was removed as a criterion. Whereas Presidential Decision No. 19/2007 had stated that the National Shipwrecks Committee was to utilize valuable objects that had not been declared as part of the Indonesian state’s collection (Article 4 (2)), Presidential Decision No. 12/2009 changed this to valuable objects not declared as state property. Mochtar (2016) describes as a breath of ‘fresh air’ the introduction of the Ministry of Culture and Tourism’s Regulation No. 48/2009 on Guidelines for Management of Underwater Cultural Heritage and Tourism, which sought to regulate the management of underwater cultural heritage and provided guidance for regional governments at the provincial and district/city level.23

Legislative changes to regulate marine space were also introduced. Law No. 27/2007 (amended by Law No. 1/2014) was introduced with the aim of regulating marine coastal resources and small islands, and mandating marine spatial planning and conservation.24 The implementation of Law No. 27/2007 was mandated to the Ministry of Marine Affairs, which subsequently issued Ministerial Regulation No. 17/2008, providing for the designation of maritime conservation areas in coastal areas and small islands.25 These were defined as zones in which historically or archaeologically significant underwater cultural heritage, with the potential to contribute to research in history, science, and culture, were located (Article 8(2)). Ministerial Regulation No. 17/2008 thus made a connection between the protection of coastal, marine, and small islands’ resources, and the establishment of a framework for sustainable development that aims to improve the welfare of society through, for example, marine tourism (Ridwan 2015:18). This focus on sustainability and livelihoods represented a growing sophistication in how heritage from the ocean, which had initially been framed solely as objects that could be sold for profit, was conceptualized. At the same time, however, this legislation also continued the pattern of classifying shipwrecks and their cargoes as marine resources, inferring that protection efforts and economic benefits were mutually compatible and achievable (Tahir 2014:816). Eventually, as the legislative landscape continued to evolve, this conceptualization of shipwrecks and their cargoes as resources would see Indonesia’s commercial shipwreck salvage policy come up against its new (and extant) cultural heritage law.

5 Developments at the International Level

Before turning to Indonesia’s new heritage law, however, it is worth stepping back for a moment to consider the international context. Ever since Indonesia had responded to the perceived threat of looting in its waters by legalizing commercial shipwreck salvage rather than adopting in situ preservation policies, its efforts to protect the heritage in its waters had defied international expectations. Furthermore, this wasn’t a short-term response; the policy endured for over two decades. The question of whether Indonesia’s unconventional management policies have in fact achieved better management outcomes than an in situ-focused approach would have done is a vexed issue, and one that has been addressed in depth elsewhere (Pearson 2022). Of greater relevance here is the apparent determination of Indonesia to chart its own course rather than align itself with the international community. This independence is consistent with Indonesia’s role in international maritime politics, in particular its stance towards regulation of its maritime borders (Butcher and Elson 2017). Indonesia’s reluctance to adhere to international standards relating to shipwreck management is, therefore, in line with its larger maritime political history and should be understood within this context.

Meanwhile, and as has been the case domestically in many jurisdictions, the international community’s efforts to protect and preserve underwater cultural heritage lagged behind those directed at terrestrial heritage. It was not until 2001 that the United Nations Educational, Scientific and Cultural Organization (UNESCO) introduced a convention directed at the protection and preservation of underwater cultural heritage. The convention did not come into force until 2009, once a certain number (20) of signatories had been reached, and to this day is characterized by its rather slow ratification rate (Staniforth 2017).

As noted, Indonesia’s first official efforts to manage the shipwrecks in its waters were introduced in 1989, well before the introduction of the 2001 UNESCO Convention. Is it possible, therefore, to explain Indonesia’s apparent determination to manage shipwrecks in its own, unique way by reference to the fact that these efforts pre-dated formal developments at the international level? Did Indonesia have any prior knowledge of the convention before it was introduced? Is it reasonable to apply the convention’s principles retroactively to a jurisdiction that has not even signed it?

In answering these questions, it is important to note that, due to its contentious nature, the development of the 2001 UNESCO Convention took many years. As early as 1992—the same year Indonesia introduced its first post-independence law relating to cultural heritage—discussions were already underway within the international community on how to protect the ocean’s heritage. These led to the preparation and adoption, in 1994, of a non-binding draft convention by the International Law Association (Nayati 1998). The intention of the draft convention, which was forwarded to UNESCO for consideration, was to ensure that underwater cultural heritage was treated according to archaeological principles (O’Keefe 1996). Meanwhile, the International Charter on the Protection and Management of the Underwater Cultural Heritage, which had been prepared by the International Committee on the Underwater Cultural Heritage and adopted in 1996 by the International Council on Monuments and Sites, was added as an annex to provide a standard by which assessments could be made (Strati 1999; Staniforth 2014). In 1997, the UNESCO General Conference decided that underwater cultural heritage should be addressed at an international level via a convention, and the following year a group of governmental experts met for the first time to begin work. UNESCO’s new Convention on the Protection of the Underwater Cultural Heritage was adopted by vote at the 2001 General Assembly (UNESCO 2001). The vote followed lengthy and ‘often antagonistic’ negotiations, with the final text a compromise designed to accommodate opposing views regarding the convention’s compatibility with UNCLOS (Clément 2017). The current ratification rate stands at 71, with early adopter Cambodia the only Southeast Asian signatory.

The campaign for a convention had been initiated by archaeologists from Australia and Europe, and then North America. Representatives from Asia, Africa, Latin America, and the Middle East were not brought into the process until discussions were well advanced (Clément 2017). Indonesia would therefore be justified in claiming that it was aware but not well informed of the direction the international community was moving in, and that its (pre-2001) domestic shipwreck management policies should be seen within that context. At the same time, however, this would not explain Indonesia’s apparent reluctance to fall into line with the convention—including banning commercial exploitation—since its introduction in 2001. Certainly, there was an opportunity to do so in 2010, when Indonesia again revised its heritage law.

6 Introduction of a New Heritage Law

While the international community focused on the development and implementation of the new convention, Indonesia persevered with its commercial survey and salvage policy. Between 1989 and 2010, the National Shipwrecks Committee issued more than 180 licences for survey and salvage activities (Gautama 2012).26 Of these, records indicate 13—fewer than 10 % of the licenses issued—were legally salvaged by commercial operators (Widiati 2012). The majority of these were from waters near Java, the Riau Islands, and the province of Bangka–Belitung on the west coast of Sumatra (Widiati 2012). The fate of the remaining sites is unknown. In 2010, however, commercial survey and salvage activities were brought to a halt following the introduction of Law No. 11/2010 on Cultural Heritage, bringing hope that Indonesia was finally considering its position in regards to the 2001 UNESCO Convention.27

As with Law No. 5/1992, which it replaced, Law No. 11/2010 asserted state ownership rights over cultural heritage objects. An exception was made for objects ‘of which there are sufficient numbers of any given type and a representative number are already owned by the state’ (Article 12) (Gautama 2012:117). Law No. 11/2010 provides for cultural heritage ‘on land and/or water’, and also for intangible heritage, stating that all such heritage needs to be preserved due to its significant value. Article 26 left the door open to the issuing of business licences, forbidding the search for cultural heritage ‘except with the permission of the Government or Regional Government in accordance with their respective authorities’.

To be considered as cultural heritage, the following criteria needed to be met: an object should be at least 50 years old; represent a specific stylistic period of at least 50 years; possess important value for history, science, education, religion and/or culture; and possess important value for strengthening national identity (Article 3 (c)). It provides national criteria for assessing and inscribing Indonesian cultural heritage properties (Article 5).28 To list an underwater cultural heritage site, a team of cultural conservation experts can make a recommendation to the local government. If feasible, the proposal will be listed by the regent (bupati) or mayor (walikota) and verified by the Ministry of Education and Culture, which holds responsibility for implementing this law (Lukman et al. 2021). Despite this heritage law being in place for over a decade, Indonesia is yet to inscribe a single underwater cultural heritage site. Indonesian government sources attribute this to both a lack of human resources as well as the absence of operational guidelines in the form of government regulations (Lukman et al. 2021; Fitri and Ahmad 2017).29

Rather than providing clarity, the inclusion of underwater objects in Law No. 11/2010 seemed to exacerbate the ambiguity and contradictions around how these objects were valued and hence managed. On one hand, Presidential Decision No. 43/1989 and its legislative successors considered shipwreck cargoes as valuable objects to be salvaged and utilized—terms that are ‘incompatible with safeguarding and preservation’ (Tjoa-Bonatz 2016:98). On the other hand, Law No. 11/2010 left open the possibility that these same objects could be classified as cultural heritage to be conserved. This distinction, between objects that are viewed in economic terms versus those which are considered part of the wealth of the nation, rendered heritage into different conceptual categories with consequences for how such objects were managed.

Four years later, a new legislative instrument, Law No. 32/2014 on Marine Affairs, seemed to suggest a new way of thinking about heritage objects in the ocean.30 While Law No. 32/2014 did stipulate that valuable objects from sunken ships constituted a type of maritime industry (Article 27(4)), it also noted the role of the community as participants in marine development, including in relation to the ‘protection and socialization’ of underwater cultural heritage (peninggalan budaya bawah air) through conservation, restoration, and conservation (Article 70(4)). Flowing from Law No. 32/2014, Government Regulation No. 32/2019 on Marine Spatial Planning provided for four different types of marine space: for public utilization (such as tourism, fisheries, mining, and industry, provided the site was not overly fragile or at risk); conservation (of both natural and cultural heritage, as provided for under Ministerial Regulation No. 17/2008); areas of strategic significance (relating to defence and security, including outer small islands and borders, as well as world heritage sites); and sea lanes (Lukman et al. 2021).31 This broader conceptualization of marine space demonstrated a growing awareness of the different ways in which the ocean, and the sites and objects contained therein, could be used sustainably. Whereas the early salvage laws had focused on short-term economic gain, the new laws represented a tangible shift towards a longer-term, more community-minded focus that recognized the economic potential of developing and protecting underwater cultural heritage to support livelihoods through tourism.

As the legislative landscape relating to underwater cultural heritage management became more complex, so too did the division of institutional responsibility. The problem was one of overlapping authority, within and across the national, provincial, and local levels of government (Mochtar 2016; Fitri and Ahmad 2017).32 Law No. 11/2010 states that the ministry with responsibilities for cultural affairs—that is, the Ministry of Education and Culture—is charged with researching, protecting, and preserving cultural heritage sites, including underwater cultural heritage sites (Article 1 (38)). These activities are carried out by Pusat Penelitian Arkeologi Nasional (National Archaeology Research Centre)—now part of Badan Riset dan Inovasi Nasional (National Research and Innovation Agency)—and Direktorat Pelestarian Cagar Budaya dan Permuseuman (Directorate of Cultural Heritage and Museums), both at the Ministry of Education and Culture.33 However, a number of legislative instruments—Law No. 27/2007, Ministerial Regulation No. 17/2008, and Law No. 32/2014—also assign responsibilities to the Ministry of Marine Affairs and Fisheries to research, protect, and preserve underwater cultural heritage sites. Within this ministry, these heritage-focused responsibilities fall to a number of functional units and are part of a broader focus that also includes ocean dynamics, physical environment conditions and marine biodiversity, and the identification of threats to underwater cultural heritage sites. Research into each of these informs the decision-making process relating to long-term underwater cultural heritage preservation, which is then implemented by the Ministry of Education and Culture. These strategies are part of a national sustainable development programme that aims to increase the prosperity of coastal communities through special-interest tourism such as sustainable shipwreck-diving.34 Nor are Education and Culture or Marine Affairs and Fisheries the only ministries making decisions on underwater cultural heritage management in Indonesia (Mochtar 2016). The Ministry of Transport, for example, must also make decisions about whether a wreck poses an obstruction to shipping, including maintaining clear shipping lanes. Although the legislation is complex, the real challenge lies in coordinating across the national bureaucracy (Lukman et al. 2021). At the provincial level, heritage management and coordination was even more ‘complex and chaotic’ (Fitri and Ahmad 2017:293). Guidance was needed on how to manage underwater objects, and, in particular, how to protect them from theft (Kasanah 2016). Despite this, inter-agency coordination still has not been institutionalized, meaning that coordination efforts are largely dependent on the efforts of individual officers and the political will of regional leaders (Fitri and Ahmad 2017:293). This poses potentially negative consequences for the overall policy implementation process (Tahir 2017; Mochtar 2016; Fitri and Ahmad 2017). Heritage, it would seem, is not immune from the broader lack of inter-agency coordination, and the resulting implementation failures, in Indonesia.35

7 Moratorium

For many years, the legislative complexity in terms of responsibility and implementation created widespread confusion. After frustration and concern over ‘decades of poor outcomes’, a decision was made in 2010 to halt the issuing of all new survey and salvage licences, effective immediately (Flecker 2017). In November 2011, the National Shipwrecks Committee formalized this arrangement with the introduction of a five-year moratorium that suspended the issuing of all new licences to commercial salvage companies (Kasanah 2016). Ministerial Regulation No. 28/2015, valid until 29 February 2016 and extended by Ministerial Regulation 4/2016 to 31 December 2016, provided more information on the temporary moratorium. Article 1 of both regulations stipulates that the issuing of licenses for survey and salvage of objects from shipwrecks is temporarily suspended. Article 2 stipulates that new licenses will not be issued and that expiring licenses will not be extended. The regulations also provided for the National Shipwrecks Committee to analyse and evaluate licences that had already been issued, although it is not known whether this was undertaken with a view to revoking them.

The moratorium was made permanent in May 2016 with the introduction of Presidential Regulation No. 44 on the List of Closed Business Fields and Open Business Fields with Conditions to Investment. Presidential Regulation No. 44/2016 specified, in Attachment One, 20 business fields that were excluded from investment, including salvaged objects from shipwrecks—effectively prohibiting investment in the field of shipwreck salvage.36 The effect of the moratorium on those companies that had already been granted licences but had not yet commenced salvage work is not known. Nevertheless, by May 2016, some 27 years after it was first introduced, Indonesia’s permit system for commercially salvaging shipwrecks and their cargo was no longer in place.

The introduction of a moratorium on commercial salvage had both its supporters and its critics. Although Indonesia is a long way from signing and ratifying the 2001 UNESCO Convention, the halting of commercial salvage did, at least, remove a barrier to doing so. Some interpreted the moratorium as effectively implementing the convention, albeit without formal ratification (Alisjahbana 2019). Not everyone welcomed the moratorium, however, arguing the destruction of underwater sites and objects in Indonesia has only intensified since 2010. As Flecker explains:

With the moratorium in place, once-opportunistic fishermen have become full-time salvors. Some are paid by foreigners to salvage cargoes and to smuggle them out of the country […] Now when fishermen are caught, there is no rescue archaeology carried out by licensed salvors, and certainly none by the state. It is unlikely that valuable cargoes would be left unguarded on the seabed, so salvage probably carries on in some other guise until nothing remains.

Flecker 2017:8

This assessment is supported by the widespread destruction of World War II shipwrecks in Indonesian waters in recent years, which has in turn elevated to the international level the question of how Indonesia is physically and legally protecting these and other wrecks in its waters (Manders et al. 2021; Hosty, Hunter, and Adhityatama 2018; Pearson forthcoming). These activities are systematic, targeted, and industrial in scale, and a continuation of what has been happening in Indonesia for decades: the removal of valuable objects from shipwrecks for profit.

8 Open for Investment

The moratorium served to intensify debates about the best way to protect and preserve underwater cultural heritage in Indonesian waters. However, despite President Joko Widodo’s interest in developing Indonesia as a global maritime nexus (Sambhi 2015), Indonesia has continued to demonstrate a distinct lack of enthusiasm regarding the 2001 UNESCO Convention, citing concerns about sovereignty, the vastness of its sea territory, and lack of clarity regarding ownership and the division of responsibilities between flag and coastal states (Alisjahbana 2019). The moratorium, within this context, appears less a move towards ratification and more an extended holding measure while Indonesia considered its options.

Amidst these debates, the introduction of a new law that re-opens Indonesian waters for investment was perhaps not unexpected. Nevertheless, Law No. 11/2020 on Job Creation caught many by surprise, characterized as it was by inadequate public consultation. An initiative of President Joko Widodo’s administration and commonly known as the Omnibus Law, the Job Creation Law seeks to amend 76 laws, with the aim of facilitating business, reducing bureaucracy, boosting investments and, as the title suggests, creating jobs (Pryanka 2020). To implement the Job Creation Law, 49 new regulations have been introduced, including 45 promulgated by the government and four by the president (Farisa 2021).

Article 77 of the Job Creation Law seeks to change Law No. 25/2007 on Capital Investment.37 Of relevance to underwater cultural heritage are the amendments to Article 12 of Law No. 25/2007. The amendments state that every business field is terbuka—open for investment—except for those designated as closed or those that can only be carried out by the central government.38 The proposed changes to Law No. 25/2007 are implemented through Presidential Regulation No. 10/2021, which specifies which business fields are open to investment activities and which are closed (Article 2).39 When Presidential Regulation No. 10/2021 came into force on 4 March 2021, it revoked and invalidated Presidential Regulation No. 44/2016. Law No. 11/2020 also made changes to Law No. 32/2014 on Marine Affairs, providing (at Article 19) for the addition of a new article, 47A, to Law No. 32/2014. The new addition gives guidance on the issuing of business licences for ‘sea utilization’ based on spatial/zoning plans, including the salvage of shipwreck cargoes. The effect of these complex legal machinations was that the salvaging of ‘valuable objects’ from sunken ships was, in principle, no longer forbidden in Indonesia.

The National Shipwrecks Committee still exists, but it has no powers. If and when it is reconstituted, it will be chaired not by the minister of marine affairs and fisheries, but by the coordinating minister for maritime affairs and investment, Luhut Binsar Pandjaitan, who once served as chief of staff under President Joko Widodo and is believed to have played a key role in the decision to re-open underwater cultural heritage to commercial salvage. However, indications are that salvage permits will be issued by the Badan Koordinasi Penanaman Modal (Investment Coordination Board) (Sandi 2021). Preliminary advice from within the Indonesian bureaucracy indicates that, if the salvage is successful, profits will again be shared with the government.

The impact of Indonesia’s Job Creation Law on underwater cultural heritage is yet to be seen, and it will be some years before the full consequences of this intended legislative overhaul are evident. What is apparent, however, is the disquiet it has caused within heritage and archaeology circles, including among government officials and advocacy groups. In March 2021, as news of the Job Creation Law began to trickle down, Perkumpulan Ahli Arkeologi Indonesia (Association of Indonesian Archaeologists) convened a webinar on the fate of Indonesia’s underwater cultural heritage. Attended by over 500 participants including bureaucrats from affected ministries, discussions focused on the ideological, legal, and management issues arising from the Job Creation Law; the extent to which the proposed changes violated Law No. 11/2010 on Cultural Heritage and associated regulations; and whether a request for a judicial review might be warranted (Perkumpulan Ahli Arkeologi Indonesia 2021). In particular, participants expressed concerns that re-opening Indonesia’s waters to commercial salvage would result in the loss of not only its cultural heritage but, by extension, its national identity. The strength of this reaction was matched only by the breathlessness of the media reports on the ‘treasure’ within Indonesia’s waters, which some estimated to be valued at an astonishing US$ 12.7 million (CNN Indonesia 2021).

Former minister of marine affairs and fisheries Ibu Susi Pudjiastuti (2021) has urged President Joko Widodo to exclude foreign private investors from recovering ‘valuable objects’ from the ocean, arguing these activities should be solely the domain of the government and therefore exempt from investment. Not everyone is opposed to the new policy, however, with members of the Asosiasi Perusahaan Pengangkatan dan Pemanfaatan Benda Muatan Kapal Tenggelam Indonesia (Association of Shipwreck Salvage Companies) welcoming the decision (Sandi 2021).

It is possible that efforts to overturn the decision to re-open Indonesia’s waters to investment will be in vain. Compare, for example, shipwreck salvage with the treatment of alcohol in the Job Creation Law and associated regulations. Presidential Regulation No. 10/2021 opened the alcohol and liquor industry for investment (Attachment 3), in the process sparking widespread controversy. Unlike the situation with shipwreck salvage, however, hard lobbying by major religious groups in Indonesia, including Nahdlatul Ulama and Muhammadiyah, led to this decision being overturned through Presidential Regulation No. 49/2021. Rather than succumbing to similar pressure in relation to shipwreck salvage, the head of the Investment Coordination Board, Bahlil Lahadalia, has instead reinforced the message that shipwreck salvage would indeed continue, subject to certain conditions, and would require a permit. Meanwhile, bureaucrats are grappling with the complexity of the new laws, which require the drafting of additional technical regulations before salvaging activities can commence.

However, there remains significant uncertainty around the Job Creation Law and whether it is even constitutional. On 25 November 2021, Indonesia’s Constitutional Court issued a decision that the law was unconstitutional and that the process by which it had been formed—including the lack of clarity around whether it was new, amending or revoking legislation, and the absence of meaningful public consultation in its formation—was procedurally flawed (cacat formil). The court ordered Indonesia’s legislators to revise the Job Creation Law within two years of the court’s ruling; failure to do so would render the law permanently unconstitutional. The court also suspended the issuing of new implementing regulations (Makarim and Taira S. 2022).

While the full implications of the Constitutional Court’s ruling are yet to be seen, it has already caused confusion regarding the status of changes already introduced to other laws by the Job Creation Law, as well as uncertainty around the status of those implementing regulations that have already been issued. For now, and at least until 25 November 2023, the Job Creation Law remains in effect. After that date, it will become permanently unconstitutional if not revised in accordance with the court’s ruling. Should this happen, then it is unclear whether Indonesia’s shipwreck management policies would revert to their previous status—including a possible reinstatement of the moratorium on shipwreck salvage—or evolve, again, into something else entirely. Either way, the longer-term impact on the management of shipwrecks in Indonesia remains—as has been the case so often—uncertain.

9 Conclusion

Since the salvage and sale of the Geldermalsen’s cargo in the mid 1980s, Indonesia has taken steps to address the legal vacuum pertaining to the management of shipwrecks in its territorial waters. By electing to adopt a commercial survey and salvage policy, Indonesia has charted its own course. This course has been as complex as it has been controversial. Critics feared it exposed underwater cultural heritage to commercial exploitation and noted that Indonesia’s commercial salvage policies were increasingly out of step with the international community’s efforts to protect and preserve underwater cultural heritage, in particular through the introduction of the 2001 UNESCO Convention. Those working within the system, meanwhile, struggled to stay abreast of ambiguous legislation, confounding terminology, and contradictory management approaches. It was not in response to the convention, however, but to the introduction of its own Cultural Heritage Law in 2010 that Indonesia ceased to issue licenses for commercial survey and salvage. From that point, it would have been reasonable to expect Indonesia to, if not sign and ratify the 2001 UNESCO Convention, at least take steps in that direction. The reforms that were introduced in 2020, however, were not those that were expected. Rather than investing in sustainable marine-tourism initiatives, Indonesia instead changed course again when it reintroduced the Job Creation Law. The decision to re-open Indonesian waters to investment came as a surprise to bureaucrats, practitioners, and international observers. Whether these changes are implemented and the National Shipwrecks Committee is reinstated remains to be seen. As the full implications of the reforms unfold, the only certainty is that the legislative landscape relating to shipwreck management in Indonesia will continue to be both contested and complicated.

Acknowledgements

I am grateful for the support of the Sydney Southeast Asia Centre and the School of Languages and Cultures at the University of Sydney. My thanks to the excellent suggestions provided by the two anonymous peer reviewers. I would also like to thank Zainab Tahir, Simon Butt, Andrew Henderson, Jarrah Sastrawan, Michele Ford, and Shinatria Adhityatama for providing comments and feedback. Any errors are mine alone.

1

In this article, ‘legislation’ encompasses laws, ordinances, decisions, rules, and regulations. A list of all legislation mentioned is available at the end of the article.

2

Keputusan Presiden No. 43 Tahun 1989 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam.

3

Undang-Undang No. 11 Tahun 2020 tentang Cipta Kerja.

4

Issued by the Dutch in 1931, the Monumenten Ordonnantie (Monuments Ordinance) 238 No. 19 (followed by Monuments Ordinance 515 No. 21/1943) addressed tangible heritage, including movable and immovable heritage, and was implemented at the national level by the archaeological service (Fitri and Ahmad 2017:291).

5

Undang-Undang No. 17 Tahun 1985 tentang Pengesahan Konvensi Perserikatan Bangsa-Bangsa tentang Hukum Laut.

6

In Indonesia, Keputusan Presiden (Presidential Decisions) differ from Undang-Undang (Laws) in that the president does not have to go through any other mechanisms to introduce them; they are simply passed and then become regulation (unless challenged in court, which is uncommon). Laws, meanwhile, must be passed through the Dewan Perwakilan Rakyat (People’s Representative Council), Indonesia’s lower house of parliament. Regulations implement the laws, providing additional detail and technical guidance.

7

The phrase ‘National Shipwrecks Committee’ is my own translation for the purpose of readability. The original Indonesian, Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam, is more accurately translated as ‘National Committee for Valuable Objects Recovered from Sunken Ships’.

8

These were the Departemen Pertahanan Keamanan (Ministry of Defence and Security), Departemen Pendidikan dan Kebudayaan (Ministry of Education and Culture), Departemen Dalam Negeri (Ministry of Home Affairs), Departemen Luar Negeri (Ministry of Foreign Affairs), Departemen Kehakiman (Ministry of Justice), Departemen Keuangan (Ministry of Finance), Departemen Perhubungan (Ministry of Transport), Departemen Perdagangan (Ministry of Trade), and Markas Besar Angkatan Bersenjata Republik Indonesia (Headquarters of the Armed Forces of the Republic of Indonesia).

9

Keputusan Menteri Keuangan No. 1260/KMK03 Tahun 1989 tentang Penetapan Besarnya Prosentasi Bagi Hasil antara Pemerintah Republik Indonesia dengan Perusahaan Asing, Perusahaan Patungan atau Perusahaan Nasional Pengangkat Benda Berharga dari Dasar Laut di Perairan Yurisdiksi Nasional; Keputusan Menteri Perhubungan No. KM23 Tahun 1990 tentang Usaha Salvage atau Pekerjaan Bawah Air.

10

In practice, presidential decisions prevail over ministerial decisions; however, there is in fact no institution (such as a court) to determine which would prevail in the case of an inconsistency or conflict.

11

Keputusan Menteri Pendidikan dan Kebudayaan No. 0843/O Tahun 1989 tentang Tata Cara Pelaksanaan Pengangkatan Benda Berharga Khususnya yang Berhubungan dengan Benda Cagar Budaya di Wilayah Perairan Indonesia.

12

Undang-Undang No. 5 Tahun 1992 tentang Benda Cagar Budaya.

13

Ministry of Education and Culture (until 1998); Departemen Pariwisata, Seni dan Budaya (Ministry of Tourism, Arts and Culture) (1999–2001); Departemen Kebudayaan dan Pariwisata (Ministry of Culture and Tourism) (2001–2011); Departemen Pendidikan dan Kebudayaan (Ministry of Education and Culture) (2012–2021) (Fitri and Ahmad 2017:291). Since 2021, following a merger of two ministries, this ministry has been known as Kementerian Pendidikan, Kebudayaan, Riset dan Teknologi (Ministry of Education, Culture, Research, and Technology).

14

Keputusan Presiden Republik Indonesia No. 25 Tahun 1992 tentang Pembagian Hasil Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam antara Pemerintah dan Perusahaan.

15

Peraturan Pemerintah No. 10 Tahun 1993 tentang Pelaksanaan Undang-Undang No. 5 Tahun 1992 tentang Benda Cagar Budaya.

16

Keputusan Presiden Republik Indonesia No. 107 Tahun 2000 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal Tenggelam; Keputusan Presiden No. 145 Tahun 1999 Perubahan Sebutan Menteri Eksplorasi Laut menjadi Menteri Eksplorasi Laut dan Perikanan.

17

And not, as Flecker (2017:5) states, to the Ministry of Culture and Tourism.

18

These were the Department of Marine Exploration and Fisheries, Ministry of National Education, Indonesian Navy, Departemen Pertahanan (Ministry of Defence), Ministry of Home Affairs, Ministry of Foreign Affairs, Departemen Hukum dan Perundang-undangan (Ministry of Law and Legislation), Ministry of Finance, Ministry of Transport, and Departemen Perindustrian dan Perdagangan (Ministry of Industry and Trade).

19

Keputusan Menteri Kelautan dan Perikanan No. 39 Tahun 2000 tentang Ketentuan Teknis Perizinan Survei dan Perizinan Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam.

20

Keputusan Presiden Republik Indonesia No. 19 Tahun 2007 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam, sebagaimana telah diubah dengan Keputusan Presiden No. 12 Tahun 2009.

21

These were the Ministry of Marine Affairs and Fisheries; Menteri Kebudayaan dan Pariwisata (Ministry of Culture and Tourism); Ministry of Defence; Ministry of Home Affairs; Departemen Perindastrian [sic] (Ministry of Industry); Ministry of Finance; Departemen Perdagangan (Department of Trade); Ministry of Foreign Affairs; Departemen Hukum dan Hak Asasi Manusia (Department of Law and Human Rights); Ministry of Transport; Departemen Tenaga Kerja dan Transmigrasi (Department of Manpower and Transmigration); Indonesian Navy; Sekretariat Kabinet (Cabinet Secretary); Deputi Kepala Kepolisian Negara Republik Indonesia Bidang Operasi (Deputy Chief of Field Operations for the Indonesian Police); and Jaksa Agung Muda Bidang Perdata dan Tata Usaha Negara, Kejaksaan Agung (Deputy Attorney General for Civil and Administrative Affairs State, Attorney General). See also Ridwan 2015.

22

Keputusan Presiden No. 12 Tahun 2009 Perubahan atas Keputusan Presiden No. 19 Tahun 2007 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam.

23

Peraturan Menteri Kebudayaan dan Pariwisata No. 48 Tahun 2009 tentang Pedoman Pelaksanaan Pengelolaan Peninggalan Bawah Air.

24

Undang-Undang No. 27 Tahun 2007 tentang Pengelolaan Wilayah Pesisir dan Pulau-Pulau Kecil; Undang-Undang No. 1 Tahun 2014 tentang Perubahan atas Undang-Undang No. 27 Tahun 2007 tentang Pengelolaan Wilayah Pesisir dan Pulau-Pulau Kecil.

25

Peraturan Menteri Kelautan dan Perikanan No. 17 Tahun 2008 tentang Kawasan Konservasi di Wilayah Pesisir dan Pulau-Pulau Kecil.

26

Exact numbers are hard to determine due to the difficulty of accessing primary documentation from the National Shipwrecks Committee. Gautama (2012:116) further notes that between 2000 and 2011, about 50 licenses for survey activities were granted, with only four private companies receiving salvage licenses. This is fewer than the numbers provided by Tjoa-Bonatz (2016:95), who states that between 2000 and 2010, the National Shipwrecks Committee issued 71 survey permits to 19 different Indonesian salvage companies (including one cooperative), from which just nine salvage permits were issued to five companies.

27

Note that ‘objects’ has been dropped from the title.

28

One recent development is the introduction of Peraturan Pemerintah No. 1 Tahun 2022 tentang Register Nasional dan Pelestarian Cagar Budaya, the drafting of which was led by the Ministry of Education, Culture, Research, and Technology. This regulation includes the term Objek yang Diduga Cagar Budaya (an object suspected of being cultural heritage), which seems to be a strategy to protect cultural heritage even if it is not registered. Article 10 makes specific reference to underwater cultural heritage and the role of the Ministry of Education, Culture, Research, and Technology in the process. This regulation could be interpreted as the ministry’s response to the Job Creation Law. I am grateful to Andrew Henderson for this point.

29

Failure to apply a new law on the grounds that there are no implementing regulations yet in place is common in Indonesia and is usually seen as a legitimate reason for inaction. It has been accepted as such by the Supreme Court. Equally, failure to produce implementing regulations can be an effective way to sabotage a new law. I am grateful to an anonymous reviewer for this point.

30

Undang-Undang Republik Indonesia No. 32 Tahun 2014 tentang Kelautan.

31

Peraturan Pemerintah No. 32 Tahun 2019 tentang Rencana Tata Ruang Laut.

32

The problem of overlapping authority is not limited to underwater cultural heritage; it plagues many areas of Indonesian law.

33

The Direktorat Peninggalan Bawah Air (Directorate of Underwater Relics) fulfilled this role from 2006 to 2011, including the collection of data on underwater cultural heritage in Indonesia (Yussubrasta et al. 2011).

34

The popularity of the USAT Liberty shipwreck in Tulamben, Bali, as a dive site is a prime example of how special-interest tourism can provide economic benefits to the local community (Mochtar 2016; Ridwan 2015; Tahir 2016).

35

Indonesia’s inter-agency coordination shortcomings are often referred to as ego sektoral (silo mentality).

36

Other closed fields included cultivation of marijuana, catching of endangered fish species, removal of coral, and the manufacturing of certain chemicals.

37

Undang-Undang Republik Indonesia No. 25 Tahun 2007 tentang Penanaman Modal.

38

Those fields of investment designated as closed by Law No. 11/2020 are cultivation of narcotics; all forms of gambling and/or casinos; catching of endangered fish; removal of coral; chemical weapons manufacturing; and production of materials that deplete the ozone layer.

39

Peraturan Presiden Nomor 10 Tahun 2021 tentang Bidang Usaha Penanaman Modal.

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  • Miller, George L. (1992). ‘The second destruction of the Geldermalsen’, Historical Archaeology 26–4:12431.

  • Mochtar, Agni (2016). ‘In-situ preservation sebagai strategi pengelolaan peninggalan arkeologi bawah air Indonesia’, Kalpaturu 25–1:5364. DOI: 10.24832/kpt.v25i1.83.

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  • Monumenten Ordonnantie (1931). ‘Monumenten Ordonnantie No. 19 of 1931’.

  • Monumenten Ordonnantie (1934). ‘Monumenten Ordonnantie No. 21 of 1934’.

  • Nayati, Pudak (1998). ‘Ownership rights over archaeological / historical objects found in Indonesian waters: Republic of Indonesia Act No. 5 of 1992 on Cultural Heritage Objects and its related regulations’, Singapore Journal of International and Comparative Law 2:14274.

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  • O’Keefe, Patrick J. (1996). ‘Protecting the underwater cultural heritage: The International Law Association draft convention’, Marine Policy 20–4:297307.

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  • O’Keefe, Patrick J. (1999). ‘International waters’, in Sarah Dromgoole (ed.), Legal protection of the underwater cultural heritage: National and international perspectives, pp. 22335. The Hague, Boston, London: Kluwer Law International

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  • Pearson, Natali (2022). Belitung: The afterlives of a shipwreck. Honolulu: University of Hawai’i Press.

  • Pearson, Natali (forthcoming). ‘Too little, too late? Redefining the legacy of HMAS Perth (I), an Australian warship sunk in Indonesian waters’, Historical Archaeology.

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  • Perkumpulan Ahli Arkeologi Indonesia (2021). Nasib warisan budaya di laut dalam Perpres No. 10 Tahun 2021. https://www.youtube.com/watch?v=HYYhny3HjsE, 10 March (accessed 22 December 2021). [Published on YouTube.]

  • Pryanka, Adinda (2020). ‘RUU Ciptaker cakup 76 Undang-Undang, termasuk perpajakan’, Republika. https://republika.co.id/berita/qhp6w9354/ruu-ciptaker-cakup-76-undangundang-termasuk-perpajakan, 5 October (accessed 15 December 2021).

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  • Pudjiastuti, Lilik and Franky Butar-Butar (2010). ‘Izin pengangkatan benda berharga atas muatan kapal tenggelam (BMKT) sebagai instrumen konservasi sumber daya laut di Indonesia’, Yuridika 25–3:20526. DOI: 10.20473/ydk.v25i3.254.

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  • Pudjiastuti, Susi (2021). Pak Presiden. 4 March (accessed 12 December 2021). [Published on Twitter.]

  • Ridwan, Nia Naelul Hasanah (2014). ‘The Belitung shipwreck and its ceramic cargo’, Southeast Asian Ceramics Museum Newsletter 81:4–8.

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  • Ridwan, Nia Naelul Hasanah (2015). ‘Maritime archaeology in Indonesia: Resources, threats, and current integrated research’, Journal of Indo-Pacific Archaeology 36:1624. DOI: 10.7152/jipa.v36i0.14911.

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  • Sambhi, Natalie (2015). ‘Jokowi’s “global maritime axis”: Smooth sailing or rocky seas ahead?’, Security Challenges 11–2:3955.

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  • Sandi, Ferry (2021). ‘Gegara harta karun laut, Susi Pudjiastuti memohon ke Jokowi’, CNBC Indonesia. https://www.cnbcindonesia.com/news/20210304142601-4-227851/2gegara-harta-karun-laut-susi-pudjiastuti-memohon-ke-jokowi, 4 March (accessed 22 December 2021).

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  • Staniforth, Mark (2014). ‘The role of ICOMOS, ICUCH and NAS in underwater cultural heritage protection in the Pacific’, paper presented at the Asia/Pacific Regional Conference on Underwater Cultural Heritage, Honolulu, Hawai’i, 12–16 May 2014.

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  • Staniforth, Mark (2017). ‘Factors affecting the ratification of the UNESCO Convention 2001 in the Asia and the Pacific Region’, paper presented at the ICLAFI—ICUCH symposium, Amersfoort, the Netherlands, 1 July.

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  • Strati, Anastasia (1999). Draft Convention on the Protection of Underwater Cultural Heritage: A commentary prepared for UNESCO by Dr. Anastasia Strati. UNESCO.

  • Tahir, Zainab (2014). ‘Cultural attitude and values towards underwater cultural heritage and its influences on the management actions in Indonesia’, paper presented at the Asia-Pacific Regional Conference on Underwater Cultural Heritage, Honolulu, Hawai’i, 14 May.

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  • Tahir, Zainab (2016) Apa itu benda berharga asal muatan kapal yang tenggelam? Dan bagaimana ia dikelola? https://www.youtube.com/watch?v=EF0iqeDkfBE (accessed 2 March 2018). [Published on YouTube.]

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  • Tahir, Zainab (2017). ‘Managing WWII underwater cultural heritage in Indonesia’, paper presented at the Realising the Significance of World War II Underwater Cultural Heritage in the Asia-Pacific Region Maritime Archaeology Symposium, Guam, 22 July.

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  • Tjoa-Bonatz, Mai Lin (2016). ‘Struggles over historic shipwrecks in Indonesia: Economic versus preservation interests’, in: Brigitta Hauser-Schäublin and Lyndel V. Prott (eds), Cultural property and contested ownership: The trafficking of artefacts and the quest for restitution, pp. 85107. Abingdon and New York: Routledge.

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  • UNESCO (2001). ‘The history of the 2001 Convention on the Protection of the Underwater Cultural Heritage’, United Nations Educational, Scientific and Cultural Organization. http://unesdoc.unesco.org/images/0018/001894/189450E.pdf (accessed 8 July 2017).

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  • Widiati (2012). ‘Pengelolaan tinggalan arkeologi bawah air di Indonesia’. https://iaaipusat.wordpress.com/2012/02/11/pengelolaan-tinggalan-budaya-bawah-air-di-indonesia/, 11 February (accessed 18 November 2021).

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  • Yussubrasta, Desse, Dian Trihayati, Fatwa Yulianto, and Yoesoef Boedi Ariyanto (2011). Himpunan data cagar budaya bawah air Indonesia. Jakarta: Direktorat Pelestarian Cagar Budaya dan Permuseuman.

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Laws

National Statutes

  • Undang-Undang No. 17 Tahun 1985 tentang Pengesahan Konvensi Perserikatan Bangsa-Bangsa tentang Hukum Laut [Law No. 17/1985 on the Ratification of the United Nations Convention on the Law of the Sea]’. Jakarta.

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  • ‘Undang-Undang No. 5 Tahun 1992 tentang Benda Cagar Budaya [Law No. 5/1992 on Cultural Heritage Objects]’. Jakarta.

  • ‘Undang-Undang Republik Indonesia No. 25 Tahun 2007 tentang Penanaman Modal [Law No. 25/2007 on Capital Investment]’. Jakarta.

  • ‘Undang-Undang No. 27 Tahun 2007 tentang Pengelolaan Wilayah Pesisir dan Pulau-Pulau Kecil [Law No. 27/2007 on Management of Coastal Areas and Small Islands]’. Jakarta.

  • ‘Undang-Undang Republik Indonesia No. 11 Tahun 2010 tentang Cagar Budaya [Law No. 11/2010 on Cultural Heritage]’. Jakarta.

  • ‘Undang-Undang No. 1 Tahun 2014 tentang Perubahan atas Undang-Undang No. 27 Tahun 2007 tentang Pengelolaan Wilayah Pesisir dan Pulau-Pulau Kecil [Law No. 1/2014 amending Law No. 27/2007 on Management of Coastal Areas and Small Islands]’. Jakarta.

  • ‘Undang-Undang Republik Indonesia No. 32 Tahun 2014 tentang Kelautan [Law No. 32/2014 on Marine Affairs]’. Jakarta.

  • ‘Undang-Undang No. 11 Tahun 2020 tentang Cipta Kerja [Law No. 11/2020 on Job Creation]’. Jakarta.

Presidential Instruments

  • Keputusan Presiden No. 43 Tahun 1989 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam [Presidential Decision No. 43/1989 on the National Shipwrecks Committee]’. Jakarta.

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  • ‘Keputusan Presiden Republik Indonesia No. 25 Tahun 1992 tentang Pembagian Hasil Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam antara Pemerintah dan Perusahaan [Presidential Decision No. 25/1992 on Profit Sharing between the Indonesian Government and Salvage Companies of Valuable Objects Retrieved from Sunken Ships]’. Jakarta.

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  • ‘Keputusan Presiden No. 145 Tahun 1999 Perubahan Sebutan Menteri Eksplorasi Laut menjadi Menteri Eksplorasi Laut dan Perikanan [Presidential Decision No. 145/1999 changing the Name of the Ministry of Marine Exploration to the Ministry of Marine Exploration and Fisheries]’. Jakarta.

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  • Keputusan Presiden Republik Indonesia No. 107 Tahun 2000 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal Tenggelam [Presidential Decision No. 107/2000 for the National Shipwrecks Committee]’. Jakarta.

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  • Keputusan Presiden Republik Indonesia No. 19 Tahun 2007 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam, sebagaimana telah diubah dengan Keputusan Presiden No. 12 Tahun 2009 [Presidential Decision No. 19/2007 concerning the Appointment of the National Shipwrecks Committee and the Utilization of Valuable Objects raised from Sunken Ships, replaced by Presidential Decision No. 12/2009]’. Jakarta.

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  • ‘Keputusan Presiden No. 12 Tahun 2009 Perubahan atas Keputusan Presiden No. 19 Tahun 2007 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal yang Tenggelam [Presidential Decision No. 12/2009 on changes to Presidential Decision No. 19/2007 on the National Shipwrecks Committee]’. Jakarta.

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  • Peraturan Presiden No. 44 Tahun 2016 tentang Daftar Bidang Usaha yang Tertutup dan Bidang Usaha yang Terbuka dengan Persyaratan di Bidang Penanaman Modal [Presidential Regulation No. 44/2016 on the List of Closed Business Fields and Open Business Fields with Conditions to Investment]’. Jakarta.

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  • Peraturan Presiden Nomor 10 Tahun 2021 tentang Bidang Usaha Penanaman Modal [Presidential Regulation No. 10/2021 on Business Investment Fields]’. Jakarta.

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  • Peraturan Presiden Nomor 49 Tahun 2021 tentang Perubahan atas Peraturan Presiden Nomor 10 Tahun 2021 tentang Bidang Usaha Penanaman Modal [Presidential Regulation No. 49/2021 on changes to Presidential Regulation No. 10/2021 concerning Business Investment Fields]’. Jakarta.

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Ministerial Instruments

  • Keputusan Menteri Keuangan No. 1260/KMK03 Tahun 1989 tentang Penetapan Besarnya Prosentasi Bagi Hasil antara Pemerintah Republik Indonesia dengan Perusahaan Asing, Perusahaan Patungan atau Perusahaan Nasional Pengangkat Benda Berharga dari Dasar Laut di Perairan Yurisdiksi Nasional [Decision of the Minister of Finance No. 1260/KMK03/1989 on Profit Sharing Between the Indonesian Government and Foreign/Joint Venture/National Salvage Companies Salvaging Valuable Objects from Indonesian Territorial Waters]’. Jakarta.

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  • Keputusan Menteri Pendidikan dan Kebudayaan No. 0843/O Tahun 1989 tentang Tata Cara Pelaksanaan Pengangkatan Benda Berharga Khususnya yang Berhubungan dengan Benda Cagar Budaya di Wilayah Perairan Indonesia [Decision of the Minister of Education and Culture No. 0843/O/1989 on Salvaging Procedures for Valuable Objects, Specifically Relating to Cultural Heritage Objects lying within Indonesian Waters]’. Jakarta.

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  • Keputusan Menteri Perhubungan No. KM23 Tahun 1990 tentang Usaha Salvage atau Pekerjaan Bawah Air [Decision of the Minister of Transport No.KM23/1990 on Procedures for Salvage or Underwater Work]’. Jakarta.

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  • Keputusan Menteri Keuangan No. 708 Tahun 1993 tentang Penghitungan dan Penyetoran Bagian Pemerintah Berupa Pajak-Pajak dari Hasil Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam di Wilayah Yurisdiksi Republik Indonesia [Decision of the Minister of Finance No. 708/1993 on the Calculation and Deposit of the Indonesia’s Government’s Share, in the Form of Taxes, of the Outcome of Salvaging Valuable Objects Retrieved from Sunken Ships within Indonesian Jurisdiction]’. Jakarta.

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  • Keputusan Menteri Kelautan dan Perikanan No. 39 Tahun 2000 tentang Ketentuan Teknis Perizinan Survei dan Perizinan Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam [Ministerial Decision from the Ministry of Marine Affairs and Fisheries No. 39/2000 on Technical Provisions for Survey Permission and Salvage Permission to Recover Valuable Objects from Sunken Ships]’. Jakarta.

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  • Peraturan Menteri Kelautan dan Perikanan No. 17 Tahun 2008 tentang Kawasan Konservasi di Wilayah Pesisir dan Pulau-Pulau Kecil [Ministerial Regulation from the Ministry of Marine Affairs and Fisheries No. 17/2008 on Conservation Areas in Coastal Areas and Small Islands]’. Jakarta.

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  • Peraturan Menteri Kebudayaan dan Pariwisata No. 48 Tahun 2009 tentang Pedoman Pelaksanaan Pengelolaan Peninggalan Bawah Air [Ministerial Regulation of the Ministry of Culture and Tourism No. 48/2009 on Guidelines for Management of Underwater Cultural Heritage and Tourism]’. Jakarta.

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  • Peraturan Menteri Kelautan dan Perikanan Selaku Ketua Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga asal Muatan Kapal Tenggelam No. 28/2015 tentang Penghentian Sementara (Moratorium) Perizinan Survei dan Pengangkatan Benda Berharga asal Muatan Kapal yang Tenggelam [Ministerial Regulation No. 28/2015 of the Minister of Marine and Fisheries as Head of the National Shipwrecks Committee on the Moratorium on Survey and Salvage]’. Jakarta.

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  • Peraturan Menteri Kelautan dan Perikanan Republik Indonesia Nomor 4 Tahun 2016 tentang Penghentian Sementara (Moratorium) Perizinan Survei dan Pengangkatan Benda Berharga asal Muatan Kapal Tenggelam [Ministerial Regulation No. 4/2016 of the Minister of Marine Affairs and Fisheries on the Temporary Suspension (Moratorium) of the Licensed Survey and Salvage of Valuable Objects from Shipwrecks]’. Jakarta.

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Government Regulations

  • ‘Peraturan Pemerintah No. 10 Tahun 1993 tentang Pelaksanaan Undang-Undang No. 5 Tahun 1992 tentang Benda Cagar Budaya [Government Regulation No. 10/1993 on the Implementation of Law No. 5/1992 on Cultural Heritage Objects]’. Jakarta.

  • Peraturan Pemerintah No. 32 Tahun 2019 tentang Rencana Tata Ruang Laut [Government Regulation No. 32/2019 on Marine Spatial Planning]’. Jakarta.

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  • ‘Peraturan Pemerintah No. 1 Tahun 2022 tentang Register Nasional dan Pelestarian Cagar Budaya [Government Regulation No. 1/2022 on the National Register and Protection of Cultural Heritage]’. Jakarta.

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Technical Guidance

  • Ketentuan Teknis Pelaksanaan Keputusan Presiden No. 43 Tahun 1989 yang diterbitkan Panitia Nasional No. Kep4/PN/BMKT/12/1989 [Technical Provisions in Implementing Presidential Decision No. 43/1989]’. Jakarta.

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  • Keputusan Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga No. KEP-11/PN/BMKT/8 Tahun 1990 tentang Ketentuan Teknis Pelaksanaan Pengangkatan Benda Berharga yang Berada di Daratan [Decision of the National Shipwrecks Committee No. KEP-11/PN/BMKT/8/1990 on Technical Provisions in Retrieving and Exploiting Valuable Objects from Land-Based Sources]’. Jakarta.

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  • Keputusan Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga No. KEP-17/PN/BMKT/12 Tahun 1990 tentang Ketentuan Teknis Pelaksanaan Pengangkatan Benda Berharga yang Berada di Bawah Air dan di Daratan [Decision of the National Shipwrecks Committee No.KEP-17/PN/BMKT/12/1990 on Technical Provisions for Controlling Salvage and Utilization of Valuable Objects Retrieved from Shipwrecks and from Land-Based Sources]’. Jakarta.

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  • Keputusan Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga No. KEP-25/PN/BMKT/7/1991 tentang Penetapan Jarak (Radius) Lokasi Pengangkatan dan Pemanfaatan Benda Berharga [Decision of the National Shipwrecks Committee No. KEP-25/PN/BMKT/7/1991 concerning Determination of Distance (Radius) Location of Lifting and Utilization of Valuable Objects]’. Jakarta.

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  • Keputusan Direktur Jenderal Pengawasan Sumber Daya Kelautan dan Perikanan No. 56 Tahun 2011 tentang Petunjuk Teknis Pengawasan Pengelolaan Benda Berharga asal Muatan Kapal yang Tenggelam [Decision of the Director General of Marine and Fisheries Resources Control No. 56/2011 on Technical Guidance on Supervision and Management of Valuable Objects Raised from Sunken Ships]’. Jakarta.

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