Customary right on the sea By international law of the sea PersPeCtive related to the law numBer 5 of 1960

There are group of communities which still applied the customary law that has an impact to the emerge of the right which is the form consequence of the appliance of customary law, named customary right. The order of customary law ruled that land is handed over by the manager and its use to each of the existing tribes. This custom has been hereditary for a long time. Law Number 5 of 1960 concerning Regulations of Agraria states that the state basically provides protection for the embodiment of customary rights and rights which are similar to the customary rights of customary law communities, as long as in practice there are still conditions for the implementation of these rights. Conception of customary rights as applied in land areas is basically also known by international law of the sea in terms of traditional fisheries rights. However, UNCLOS 1982 on this case does not regulate specifically about the rights of the customary rights on the sea but only regulates the position of the community especially the fishing community to contribute with the government in the management and use of the sea on its territory. This research is juridical normative research that uses a statute approach and conceptual approach. This study aims to find out how the enforcement of customary rights on the sea area through the perspective of international law of the sea considering the sea area is an area whose boundaries must be agreed upon by countries under international law instruments.


INTRODUCTION
Before the enactment of Law Number 5 of 1960 concerning Basic Regulations of Agraria, customary law in the colonial period was downgraded and considered the law of the uncivilized. Law Number 5 of 1960 concerning Basic Regulations of Agraria was subsequently formed to provide an effort from the realization of the desire to liberate and prosper the people by abolishing the exploitative practices of the colonial government, both foreign capitalists and feudalisms. 1 Through Law Number 5 of 1960 concerning Basic Regulations of Agraria, customary law is seen as more appropriate and competent to guarantee legal certainty. P-ISSN: 2303-3827, E-ISSN: 2477 Law Number 5 of 1960 concerning Basic Regulations of Agraria, especially in Article 3, stipulates that the implementation of customary rights or similar rights of indigenous and tribal peoples must be carried out as long as the practice is still ongoing. Stated as the similar rights because customary rights in each region in Indonesia have different mention. 2 The term ulayat itself originated from the Minangkabau region, while in Kalimantan the customary rights are called panjampeto which means food-producing areas or as a field that is fenced off. Whereas in Ambon the customary rights are called patuanan, in Java they are called wewengkon. Meanwhile, the management of marine customary rights which is quite widely discussed, among others, such as sasi in Maluku, maneeh in the Nanusa Islands and awig-awig in Lombok, quoted from Basically, customary rights are the authority according to customary law owned by customary law communities over certain areas which are included in the community's environment.
The authority in this case includes the rights granted to these indigenous peoples to manage and take advantage of the natural resources contained in the area. 3 Thus, it can be seen that customary rights owned by indigenous peoples can not only be applied in land areas but can also be applied in sea areas.
The existence of customary rights on the sea are is still rarely understood and discussed compared to customary rights on land. 4 The term customary rights on the sea or also known as sea tenure according to Laundsgaarde is a reciprocal right and obligation that arises in relation to ownership of the sea areas. Customary rights on the sea are a form of protection of the sea by regulating the amount of catch and the level of exploitation in the area. This can prevent over-exploitation which can lead to over fishing. 5 The concept of ownership of the sea area stated by Laundsgaarde basically involves an institution that regulates the management of the resources contained in the region by referring to the customs, restrictions and family concept that has long been practiced by the local community in the region. Thus, the sea area that is encumbered with customary rights to the sea is not only limited by area restrictions but also the exclusivity of the region to marine resources, the technology used, the level of exploitation and other boundaries.
The embodiment of sea customary rights is the emergence of a group of fishermen. 1. There is a group of people who still feel bound by their customary legal arrangements as a common citizen of a certain legal alliance that recognizes and applies the terms of that community in their daily lives; 2. There is a certain customary land which is the environment of the members of the legal community and the place to take the necessities of daily life; and 3. There is a customary law order regarding the management, control and use of customary land that is applicable and adhered to by the members of the legal community.
The fishing communities that inhabit the waters of the north coast of Irian Jaya are among the other examples of people who have customary rights to manage and exploit the marine resources contained in their territory. In addition, in Central Maluku Regency there are ten fishing groups that are actively formed by the people of the region. The marine area management system by encumbering marine customary rights on the surrounding community in practice has a positive impact on the development of marine management in Indonesia. Wahyono stated that the customary rights of the sea were basically a collective awareness that was able to force the individuals contained therein to adapt to such coercion. 8 The granting of sea customary rights can be a tangible form of the implementation of regional autonomy in the area concerned. Regional autonomy in P-ISSN: 2303-3827, E-ISSN: 2477 this case is a manifestation of the principle of decentralization in Indonesia. In a unitary state, all authority within the state is basically controlled by the Central Government but in a unitary state system that adheres to decentralized regional autonomy is a gift from the Central Government to the Regional Government. 9 Indonesia's fisheries development policies in the past have failed due to common property, centralistic and anti-pluralism legal doctrines. 10 As a result, such policies face complex problems in coastal communities such as damage to coastal and marine ecology and fishermen poverty. 11 The granting of sea customary rights to the community in related areas can be a concrete form of implementing the presence of Law No. 23 of 2014 concerning Regional Government which opens access and community involvement in the management of fisheries resources in order to realize sustainable marine and fisheries development. 12 The sea area is basically an area whose boundaries are pledged by countries under international legal instruments. Thus, international law needs to be used as an ingredient in reviewing discussions on the application of customary rights to the sea in Indonesia. Referring to this, it is necessary to have a discussion related to the position of customary land rights in the regulation of international law. The position of marine customary rights in terms of international legal arrangements can then be linked to legal instruments that apply at the national level. Thus, a comprehensive study can be achieved on the rights of marine customary rights both at international and national levels.
Regarding from this background, a problem can be drawn regarding the position of customary land rights in international sea law in relation to the position of customary land rights in terms of Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles. This research is a juridical normative research that uses a statute approach and a conceptual approach. The statute approach is carried out by examining the laws and regulations that are concerned with the formulation of the problem under discussion. 13 The conceptual approach moves from the views and doctrines that have developed in the science of law to develop a legal concept. This is done because there is no or no legal regulation for the problem at hand. 14 9 Ibid. 10

United Nation Convention on The Law of The Sea (UNCLOS) 1982
The world attention on fisheries management began to develop since 1850 although previously the countries in the world which were mostly still in the form of empire assumed that fish was an inexhaustibility of marine resources. 15 The United Nations Convention on The Law of the Sea 1982 or hereinafter referred to as UNCLOS 1982, as an agreement that had been negotiated for more than nine years, was a plenary decision of a collection of international interests in the law of the sea through the United Nations Conference. 16  UNCLOS 1982 specifically in Article 61 has stated that a country must determine the amount of catch allowed in its Exclusive Economic Zone area. Determination of the amount of catch is determined based on the economic needs of coastal fishing communities and the special needs of developing countries and by taking into account fishing patterns, interdependence of fish species stocks and international minimum standards proposed in general, both at sub-regional, regional and global levels.
The granting of sea customary rights as a form of decentralized system used by the Government of the Republic of Indonesia is one step superior to management with a centralized system. This is because a decentralized system can provide opportunities for indigenous peoples to determine the amount of catch. use that is not timeless, even before the 1982 UNCLOS was agreed as a rules based system of international maritime law which also accommodates the division of sea areas in its regulation. 19 In addition, the traditional fishing rights recognized by UNCLOS 1982 do not apply to local fishermen considering this right is granted to foreign countries affected by the application of the island nation concept.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007
The 2007  Indigenous peoples also in practice must be given a place to participate in decision-  P-ISSN: 2303-3827, E-ISSN: 2477 making in matters that will affect their rights and to maintain and develop the customs they have formed to make decisions.
Regarding to the statement of several articles that contain some of the rights and

Law Number 5 of 1960 Concerning Basic Regulations of Agraria
Indonesia has an agrarian country background with a majority population engaged in the agricultural sector. Starting from this, we need a regulation that can accommodate the methods used by the Indonesian people in managing and utilizing the natural resources contained in their territories so that these resources can benefit as best as possible for the prosperity of the Indonesian people. Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles begins with a desire to review efforts to improve ownership structures in the community.
Tjondronegoro stated that thinkers of this country after independence had realized the importance of improving the structure of land tenure in society, besides relating to the right to a better life, this effort was the basis for changing the structure of the agrarian 626~629 economy into an economic structure based on industrial and agricultural developments that balanced. 23 The implementation of agrarian reform at the initial stage carried out was land reform. The object of land reform object is state land, excess land from the maximum limit, absentee land and private land. 24  concerning Basic Regulations on Agrarian Principles was originally intended to regulate land conflicts. However, the word customary rights in Article 3 does not only refer to customary land rights but the entire territory in a country which is an authority according to customary law owned by customary law communities over certain areas included in the community environment.

Law Number 26 of 2007 concerning Spatial Planning
Indonesia needs a national instrument that regulates comprehensively about spatial planning because geographically Indonesia is located in a strategic geographical area but prone to disasters that can naturally threaten the safety of the nation. 25 Thus, this law was formed to accommodate increased efforts to manage land space, sea space 23 Erizal Jamal, 2000, Beberapa Permasalahan Dalam Pelaksanaan Reformasi Agraria di Indonesia, FAE, Vol. 18, No. 1 and 2, www.media.neliti.com/media/publications/64253-ID-beberapa-permasalahan-dalam-pelaksanaan.pdf, p. 17. 24 Ibid, p. 20. 25 Tim Penataan Ruang, Undang Undang Nomor 26 Tahun 2007 Tentang Penataan Ruang, accessed from http://www.penataanruang.com on February 21st 2020. P-ISSN: 2303-3827, E-ISSN: 2477 and air space so that wise, efficient and effective management mechanisms can be found. Article 3 of Law Number 26 of 2007 concerning Spatial Planning states that the implementation of spatial planning aims to create a safe, comfortable, productive and sustainable national territory based on national resilience so as to create harmony between: (a) harmony between the natural environment and the artificial environment;