Designing a Sui Generis Regime for Traditional Cultural Expressions in Indonesian Tourism: Lessons from the Philippines & Thailand

Abstract

The increasing commercialization of Traditional Cultural Expressions (TCEs) within the tourism sector poses risks of misuse, cultural misrepresentation, and inequitable treatment of custodian communities. This study aims to compare the regulatory frameworks governing TCE protection in tourism across Indonesia, the Philippines, and Thailand, and to formulate an ideal regulatory design to strengthen TCE protection in Indonesia. The research employs a normative legal method, utilizing statutory and comparative approaches. Secondary data, consisting of legislative materials, were collected through library research and analyzed using comparative legal analysis and prescriptive analysis techniques. The findings indicate that all three countries recognize TCEs as intangible cultural heritage requiring protection; however, they differ in their legal constructions of control. Indonesia adopts a state-ownership model, reinforced through communal intellectual property registration and the Law on Cultural Advancement. The Philippines emphasizes a community ownership model grounded in the principle of Free, Prior, and Informed Consent (FPIC), while Thailand relies on institutional oversight through the Intangible Cultural Heritage Commission. Although Indonesia’s framework aligns with Hadjon’s Legal Protection Theory, it remains largely administrative, fragmented, and insufficient in ensuring effective control by custodian communities. Accordingly, an ideal regulatory framework should be directed toward a sui generis regulatory design incorporating FPIC principles; regulatory delivery through the integration of communal intellectual property registration with tourism licensing and benefit-sharing mechanisms; and regulatory inspection through the establishment of a dedicated TCE supervisory commission.