By:Linda Yanti Sulistiawati, APCEL Senior Research Fellow, NUS Law, Singapore UGM Assoc. Prof. of Law, Indonesia
In March 2020, the Netherlands returned the Keris of Diponegoro, a Javanese Prince who had led the Diponegoro war against the Dutch from 1825 to 1830. In terms of cultural heritage conservation, many saw this as a ‘good faith’ diplomatic practice by the Netherlands toward Indonesia. Be that as it may, there are still many stolen or illegally exported cultural objects outside Indonesia currently owned by foreign entities, some even being proudly displayed in foreign museums.
What can we do to re-acquire these cultural objects? As a big nation with deep cultural and historical roots, Indonesia must show its people and the world that its historical and cultural objects reside within the country and are being carefully taken care of by the Indonesian government. Article 20 of the Indonesia Heritage Law Number 11 of 2010 mandates the Government of Indonesia to manage the return of Indonesian cultural objects from outside the territory of the Republic of Indonesia, among others, through international agreements which have been ratified.
Indonesia has ratified at least 5 international agreements touching upon stolen or illegally exported cultural objects. They are the Convention for the Protection of Cultural Property in the Event of Armed Conflict, United Nations Convention on the Law of the Sea 1982 (UNCLOS), Charter on the Protection and Management of Underwater Cultural Heritage 1996, and ASEAN Declaration on Cultural Heritage. Although these instruments mention the protection of cultural heritage, none of them discuss in detail the mechanisms of returning stolen or illegally-exported cultural objects.
There are two international agreements focusing solely on stolen or illicitly traded cultural objects and properties: UNESCO Convention on the Means of Prohibition and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970) and UNIDROIT Convention on Stolen and or Illegally Exported Cultural Object (UNIDROIT 1995). These two Conventions will complete Indonesia’s efforts for heritage protection.
In relation to stolen or illegally transferred cultural objects, features of these Conventions complete Indonesia’s Heritage Law:
First, the scope of work of these conventions. Both UNESCO 1970 and UNIDROIT 1995 focus on stolen or illicitly imported/exported cultural objects/properties. However, UNESCO 1970 underlines the public law aspects of illicit import, export, and transfer of ownership of cultural property. For example, introducing a certificate listing all important items in cultural objects/properties; urging state parties to avoid procuring cultural objects/properties without these certificates; allowing state parties to request another state party’s assistance in returning the illicitly transferred cultural objects, etc. In other words, UNESCO 1970 focuses on governments’ actions to prohibit and prevent illicit import, export and transfer of ownership of cultural property. On the other hand, UNIDROIT 1970 focuses on private law aspects of stolen and/or illegally exported cultural objects. Together, both conventions’ scope of work complete Indonesia’s legal mandate to protect cultural heritage.
Second, restitution and the duty to return. Both Conventions oblige taking appropriate steps to recover and return cultural property. UNESCO 1970 underlines the action of State Parties to recover and return cultural property, while UNIDROIT 1995 states that ‘owner/s’ of stolen cultural objects (not necessarily a State) can file claims to courts or similar tribunals (including administrative institutions with such authority). These detailed steps of returning stolen or illegally transferred cultural objects complete Indonesia’s Heritage Law.
Third, time limits of claims of stolen and/or illegally imported/exported cultural objects. UNESCO 1970 includes no rules as to time limitation for claims but gives leniency for State Parties to implement the Convention in their individual ways. Conversely, Article 3 paragraph 3 to 6 UNIDROIT 1995 limits claims within three years for stolen cultural objects, beginning when the claimant knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the time of the theft. Article 5 paragraph 5 UNIDROIT 1995 sets a similar limit for exported cultural objects. Currently, the Indonesian Heritage Law does not include clauses on time limitation for stolen and/or illegally imported/exported cultural objects.
Fourth, compensation. UNESCO 1970 states that the requesting State shall pay just compensation to an innocent purchaser or to a person who has a valid title (of the stolen or illicitly transferred cultural property). UNIDROIT 1995 also highlights compensation, but specifically for owners who are completely innocent and avoid buying stolen cultural objects. Both compensation regulations are important when dealing with priceless cultural objects outside of Indonesia, which needed to be brought home to the country. Clarity of compensation reassure current owner/s of the cultural objects when they realized that their property is not legal.
Fifth, retroactivity. Both Conventions are not retroactive, as this is an international law norm. UNESCO 1970 does not directly mention non-retroactivity while UNIDROIT 1995 does so explicitly. As such, Indonesia cannot claim its heritage objects taken during the colonial era on Conventions grounds but can reclaim those taken after these Conventions entered into.
Article 5 of Indonesian Heritage Law states that if a cultural object listed in the national register is missing (or stolen) for more than 6 years, the object will be deleted from the national register. Accordingly, failing to swiftly recover stolen and/or illegally exported cultural heritage objects risks deleting them from our national register. UNESCO 1970 and UNIDROIT 1995 are crucial to completing Indonesia’s Heritage Law and protecting her Cultural Heritage Objects. Ratification or accession is the first step; the second is to ensure Indonesia’s Heritage Law benefits protection efforts. Let’s make this country a better place, let’s tell our children, and our children’s children, that their ancestors have created beautiful history and cultural heritage objects for all of us to marvel.
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