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THE RIGHT TO A GOOD AND HEALTHY ENVIRONMENT: Problems of Implementation in Indonesia

Authors:

Abstract

The integration of environmental rights into human rights in Indonesian Environmental Management Acts (EMAs) has taken 37 years after the 1972 Stockholm Declaration on Human Environment and 27 years after the Indonesian Government enacted the first EMA 1982. Although a lot of community environmental disputes have been brought before the District Courts during the period of the EMA1982 up to the EMA1997, the Court decisions have dissatisfied the people. The nexus of constitutional rights, environmental rights and human rights in the realm of environmental human rights has remained uncertain since violation to environmental human rights cannot be brought before the Indonesian Human Rights Court as its jurisdictions only includes genocide and crimes against humanity. A crime against environmental rights is still excluded from the Human Rights Law No. 39 of 1999 as well as the Human Right Law No. 26 of 2000 on the Indonesia Human Rights Court. Hence, an environmental human rights violation comes within the jurisdiction of the District Court. With all its strengths and weaknesses the District Court is the only recourse for community environmental dispute adjudication. In the interest of protecting people’s good and healthy environment, this paper suggests the establishment of a special environmental court under the General Court in Indonesia as a solution. Additionally, it also suggests the inclusion of a supplementary element to the crime against humanity in the Law No. 39 of 1999 on Human Rights and Law No. 26 of 2000 on Human Rights Court which is environmental rights violation. Key words: environmental rights, environmental human rights, Indonesian EMA, Indonesian Human Rights Court, the right to a good and healthy environment, the 1972 Stockholm Declaration
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THE RIGHT TO A GOOD AND HEALTHY ENVIRONMENT: Problems of
Implementation in Indonesia. *)
Achmad Romsan
PhD Candidate Law Faculty, National University of Malaysia; Law lecturer University of Sriwijaya, Palembang,
South Sumatra, Indonesia.
Farida Ali
Lecturer of Chemical Engineering Sriwijaya University, Palembang, South Sumatra, Indonesia.
Suzanna Mohammed Isah
Law lecturer, National University of Malaysia, Bangi, Selangor DE, Malaysia.
Abstract
The integration of environmental rights into human rights in Indonesian Environmental Management Acts (EMAs)
has taken 37 years after the 1972 Stockholm Declaration on Human Environment and 27 years after the Indonesian
Government enacted the first EMA 1982. Although a lot of community environmental disputes have been brought
before the District Courts during the period of the EMA1982 up to the EMA1997, the Court decisions have
dissatisfied the people. The nexus of constitutional rights, environmental rights and human rights in the realm of
environmental human rights has remained uncertain since violation to environmental human rights cannot be
brought before the Indonesian Human Rights Court as its jurisdictions only includes genocide and crimes against
humanity. A crime against environmental rights is still excluded from the Human Rights Law No. 39 of 1999 as well
as the Human Right Law No. 26 of 2000 on the Indonesia Human Rights Court. Hence, an environmental human
rights violation comes within the jurisdiction of the District Court. With all its strengths and weaknesses the District
Court is the only recourse for community environmental dispute adjudication. In the interest of protecting people’s
good and healthy environment, this paper suggests the establishment of a special environmental court under the
General Court in Indonesia as a solution. Additionally, it also suggests the inclusion of a supplementary element to
the crime against humanity in the Law No. 39 of 1999 on Human Rights and Law No. 26 of 2000 on Human Rights
Court which is environmental rights violation.
Key words: environmental rights, environmental human rights, Indonesian EMA, Indonesian Human Rights Court,
the right to a good and healthy environment, the 1972 Stockholm Declaration.
.
I. INTRODUCTION
The notion of people’s right to a good and healthy environment has been stipulated in the
Indonesian Environment Management Acts (EMAs). The first EMA 1982 (the 1982 Law No. 4
on Basic Provisions on Environmental Management) has provided for the notion above under
Article 5. When the second EMA was enforced in 1997 through the 1997 Law No. 32 on
Environmental Management,1 the two EMAs above in reality do not accommodate the people’s
need to have their right to a good and healthy environment. This situation is getting blurred when
in 2009 the Government of Indonesia applies the EMA 2009 (The 2009 Law No; 23 on the
Protection of and the Management of the Environment), the notion of the right of the people to a
good and healthy environment is vanished. There is no such provision which clearly mentions
the notion above. Something new in the EMA 2009 is the integration of environmental rights
into human rights as stated in Article 3 paragraph (g) of the EMA 2009 where the objectives of
the protection and the environmental management are, inter alia for the assurance of and the
1*) Paper presented at the 5th Sriwijaya International Seminar on Energy and Environment Science and Technology,
Palembang, Indonesia, 10-11 September 2014.
See: Art 5 (1), EMA 1997.
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fulfilment of the protection of environmental rights as part of human rights.” It is argue whether
the right to a good and healthy environment is included in the concept of environmental rights
and automatically is regarded as part of the elements of human rights.
As a matter of fact that the acknowledgement of the right to a good and healthy environment has
long been stipulated in The 1999 Law No. 39 on Human Rights precisely under Article 9
paragraph (3) which states that everybody has the right to a good and healthy environment.
Furthermore in 2000, the recognition of people’s right to a good and healthy environment is
guaranteed under Article 28 (H) of the Second Amendment of the 1945 Constitution. Thus in
Indonesia the right to a good and healthy environment has completely become constitutional
rights and also legal rights. Theoretically these provisions can be the people used whenever their
environmental rights got violated.
From these three regulations therefore the notion is also named as the notion of environmental
human rights. A corporation of two different areas of law, environmental law and human rights
law but they are synergy to one another for the protection of human survival.
The questions raised in this paper are: the extent of the people’s right to a good and healthy
environment is guaranteed and protected under the EMAs; is violation to environmental rights
seen as violation to human rights. How that notion implemented it; what is or are the parameters
supporting the notion of a good and healthy environment. The questions rose due to many
environmental disputes between the communities and the industries, palm plantations, and so
forth occurred during the application of the EMAs which impair the people’s right to a good and
healthy environment.
II. ENVIRONMENTAL CONSTITUTIONAL RIGHTS IN OTHER COUNTRIES.
The right to a good and healthy environment has been adopted into national constitutions of at
least 55 countries, inter alia, the constitution of The Republic of Belarus,2 Brazil,3 the French,4
2 Art 46 (Environment) (Belarusian Constitution, Adopted 1994) ” (Retrieved: http://www.belarusguide.
com).
3 Ch VI: Environment. Art. 225, the 1988 Constitution of the Federative Republic of Brazil.
4 Art 1 – Everyone has the right to live in a balanced environment which respects health (D. Marrani, “The Second
Anniversary of the Constitutionalisation of the French Charter for the Environment: Constitutional and
Environmental Implications”, (2008) 10 Envtl.L. Rev. 9).
3
Republic of Georgia,5 Norway,6 Slovenia,7 Argentina,8 Chile,9 Costa Rica,10 Cuba,11 Ecuador,12 El
Salvador,13 Honduras,14 Nicaragua15 and Paraguay16 Indonesia, Burma, Philippines, Thailand and
Vietnam.
Similarly to what happen to Indonesian EMAs, and other human rights law, the countries above
also have lack of information describing what is meant by the right to a good a healthy
environment. Some writers proposed such term refer to environmental rights17 likewise “decent
environment”, “healthy environment,” “safe environment,”“balanced environment,” “secure
environment,” “satisfactory environment,” “adequate environment,” “clean environment,” “pure
environment,”“natural environment,”“viable environment,”“ecological sound,” “ecologically-
balanced.” Regrettably to say the terms offered by the writers above are vague, diverse,
controversial, and ever-changing18 and assumed to be quoted from the national constitutions. It is
still argue whether it includes the rights of land, water, air being free from pollution, including
5 The Georgia Constitution, Adopted on 24 August 1995, and last amendment 27.12.06 (http://www.parliament.ge).
6 Art. 110 (b) of The Norwegian Constitution (http://www.stortinget.no).
7 Art 72 (Healthy Living Environment) of The Slovenian Constitution adopted on 23 Dec. 1991 and amended on 14
July 1997, 25 July 2000, 7 March 2003, 15 June 2004, 20 June 2006 (http://www.servat. unibe.ch).
8 Sec 41 (The 1994 Argentina Constitution) (http://www.hrcr.org/chart/annotations& references/ Argentina.html)
9 Art 19 Para. 8 (1980 Constitution of Chile).
10 Art 50. Para. 2 (Constitution of The Republic of Costa Rica, a s amended by Article 1°, Law No. 7412, June 3,
1994.) (http://www.costaricalaw.com/ constitutional_law /cons titu tion_en.php )
11 Art 27 (Constitution of the Republic of Cuba, 1992) (http://www.cubanet.org/ref/dis/ const_92_ e.htm).
12 Art. 14 (Constitution of the Republic of Ecuador) (http://pdba.georgetown. edu/ Constitutions/
Ecuador/english08.html).
13 Art 69 (Constitution of the Republic of El Salvador, 1983 (as Amended to 2003) (http://pdba.
georgetown.edu/constitutions/elsal/elsalvador.html).
14 Art 145 (Constitution of the Republic of Honduras 1982 (Updated through the Decree 36 of May 4 2005)
(http://www.honduras.com/honduras-constitution-english.html.
15 Art 60 (Nicaraguan Constitution of January 9 1987. (Retrieved: http://janda.org/ politxts/Major% 20
Demo cratic%20Documents/nicaragua.htm ).
16 Art 7 (1) (Paraguay Constitution, adopted 20 June 1992) (Retrieved: http://www.servat.unibe.ch/icl/ pa00000
_.html.
17 Melissa Thorme, “Establishing Environment As a Human Rights”, 1990-1991 19 Denv. J. Int’lL. & Pol’y 301-
342; James W. Nickel, “The Human Rights to a Safe Environment: Philosophical Perspectives on Its Scope and
Justification”, 18 Yale. J. Inter’lL. 281-993; Ole W. Pedersen, “European Environmental Human Rights and
Environmental Rights: A Long Time Coming”, 2008 21 Geo. Int’l Envtl. L. Rev. 73 and Luis E. Rodriguez- Rivera,
‘Is the Human Rights to Environment Recognised Under International Law? It Depends in the Source’, (Winter
2001) 12 Colo. J. Int’l Env’l. L. & Pol’y I.
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the right to enjoy the un-spoilt nature19 or does it just pure human rights, pure economy or purely
environment (ecology).20
III. ENVIRONMENTAL CASES RELATED VIOLATION TO HUMAN RIGHTS.
When one traces back during the application of the Indonesian EMAs, starting from the first one
up to the promulgation of the second EMA 1997, there were a number of community
environmental disputes brought to district courts. In general the case dealt with pollution and
environmental degradation which affected the economic activities of the local people. It was
recorded within the period of 1989-2004 there were at least 39 community environmental
disputes had been solved either through litigation and non-litigation. Meanwhile, during the
enactment of the first EMA1982 there were 20 cases and the number is declined to 19 cases
when the second EMA1997. From 2004 up to the promulgation of the third EMA2009, there was
no record of cases. The following table illustrates the community environmental disputes within
1989-2004.
No Disputes Year Litigation (L) /Non-
Litigation(NL) (Mediation)
1 PT. Inti Indorayon Utama Case 1989 L
2 PT. Pupuk Iskandar Muda 1989 L
3 Samidun Sitorus cs v. PT. Inti Indorayon 1989 L
4 PT. Sarana Surya Sakti Case 1991 L
5 PT. Muara Jaya 1991 L
6 Tapak River Case 1991 NL
7 Tembok Dukuh vs. PT. SSS Case 1991 NL
8 Sulae Case 1992 L
9 Tyfountext (Solo) 1992 NL
10 Siak River 1992 NL
11 Sambong River (Batang) 1993 NL
12 Singosari SUTET Case 1994 L
13 Reafforestation Fund (IPTN) Case 1994 L
14 Sibalec (Yogyakarta) 1994 NL
15 Naga Mas (Central Java) 1994 NL
16 Ciujung River (West Java) 1995 NL
17 Samitex (Yogyakarta) 1995 NL
18 Surabaya River Case 1995 L
18 Luis E. Rodriguez- Rivera, ‘Is the Human Rights to Environment Recognised Under International Law? It
Depends in the Source’, (Winter 2001) 12 COLO. J. INT'L ENVTL. L. & POL'Y 1.
19 R.R. Churchill, “Environmental rights in existing human rights treaties”, in Alan Boyle, 1996 Human Rights
Approaches to Environmental Protection, Claredon Press-Oxford, pp 91- 108.
20 M. Thorme, ‘Establishing Environment As a Human Right’,(1990-1991) 19 Denv. J. Int’l L. & Pol’y 301., J.
W. Nickel, 18 Yale J. Int’lL. 283)., R. F. Dasmann, (1975) The Conservation Alternative (4t h ed.), New York: Wiley,
Daniel D. Chiras, Environmental Science: A Framework for Decision Making, The Benjamin Cummings Publishing
Company, Inc. 2727 Sand Hill Road, Menlo Park, Ca 94025, p. 42.
5
19 Freeport Case 1995 L
20 Sari Morawa Case 1996 L
21 Reafforestation Fund (PT. Kiani Kertas) 1997 L
22 Indo Acidatama (Central java) 1997 NL
23 Exponent 66 vs. APHI 1998 L
24 Laguna Mandiri 1998 L
25 WALHI vs. PT. Pakerin 1998 L
26 PT. Palur Raya Dispute 1998 L
27 Kalimantan Peat Land Case 1999 L
28 Banger Case 1999 L
29 PT. Sumber Sehat (Kudus) 1999 NL
30 Kanasritex (Semarang) 1999 NL
31 PT. Kayu Lapis Indonesia (KLI) 1999 NL
32 PT. Pura (Kudus) 1999 NL
33 Way Seputih River 2000 L
34 Tawang Mas (Semarang) 2000 NL
35 Pekanbaru Smog Case 2000 L
36 Kelian Equatorial Mining 2001 NL
37 WALHI vs. PT. Freeport 2001 L
38 Transgenic Cotton Case 2001 L
39 PT. Lapindo Case 2004 L
Table 1 The Community environmental disputes within the period of
The promulgation of the EMAs
Source: D.F. Nicholson, Environmental Dispute Resolution in Indonesia, PhD thesis, Leiden
University, 2005.
If one looks at the cases above and confront them to the Second Amendment of 1945
Constitution and the EMA 2009 and also The 1999 Law No. 39 on Human Rights conclusion one
will get that pollution and environmental degradation, the impairment of people’s economy
activities are in contraction to principle of human rights. Thus one can say that violation to
environmental rights is also seen as violation to human rights. This argument is parallel to the
opinions delivered by many scholars, likewise: Thorme21 says that even though the Universal
Declaration on Human Rights 1948 has an implicit reference to the environment but Article 25
paragraph (1) may be used as reference to environmental rights that everyone has “the right to a
standard of living adequate for the health and well-being of himself and of his family, including
food, clothing [and] housing.” Meanwhile, Shelton22 cited that the right to life, personal security
and the right to health and food as rights to the environment or as rights of the environment and
even the right to information may be regarded as environmental rights. Thus, the right to life, the
right to health, to food, to safe and healthy working conditions, the right to housing, the right to
21 M. Thorme., ‘Establishing Environment As a Human Rights,’ (1999-2000) 19 Denv. J. Int’IL. & Pol’y, p. 301-
342.
22 D. Shelton, Human Rights, Environmental Rights, and the Right to Environment, (1991-1992) 28 Stan. J. Int’I.
L, p. 103- 138.
6
information, freedom of association are rights that have interconnection with environment and
ultimately have an impact on the enjoyment of environment.23 Thus, the nexus of environmental
rights to human rights24 implies everyone’s obligation to safeguard the environment25 for the
violation of environmental rights will be the impairment to human rights. Shelton, 26 Cassel,27
Giorgetta,28 Soveroski,29 Mowery30 and Nickel31 support the connection of environmental rights
to human rights.
IV. ENVIRONMENTAL RIGHTS VIOLATION UNDER INDONESIAN LAWS.
As mentioned early on that the right to a good and healthy environment has been constitutional
rights and legal rights for it is guaranteed under the 2000 Second Amendment of The 1945
Constitution and also protected under the EMA2009 and The 1999 Law No. 39 on Human
Rights. These provisions can be used by the people for their environmental rights impaired by
pollution and environmental degradation. These provisions are also seen as legal foundation for
people to claim their environmental rights. In other word, community environmental disputes
with industries, palm plantations, mining, agricultures, and soforths have human rights nuances.
Furthermore they are welcome to submit their cases to human rights court. Is environmental
crime covers under The 2000 Law No. 26 on Human Rights Court? Unfortunately the Human
Rights Court has no jurisdiction over environmental rights violation. Although in Human Rights
Law of 1999 No. 39 has admitted that environmental rights is human rights. Human Rights Court
has only jurisdiction over the Genocide crime and a crime against humanity. The inconsistency
between Human Rights law and Human Rights Court above will have an impact on the future
23 UN Economic and Social Council (GENERAL E/CN. 4/Sub. 2/1994/9 6 July 1994).
24 Paolo Galizzi, “From Stockholm to New York, via Rio and Johannesburg: Has the Environment Lost its Way on
the Global Agenda?” (2005) Fordham International Law Journal (29) 5.3, pp. 952-1008.
25 Principle 2 (UN Doc A/CONF/48/14/REV.1 (1972)
26 For examples: D. Shelton, “Human Rights and Environment Issues in Multilateral Treaties Adopted between
1991 and 2001.” Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 14-16 January 2002,
Geneva: Background Paper No. 1. ( http://www. ohchr.org).
27 J. Cassel, ‘Enforcing Environmental Human Rights: Selected Strategies of US NGOs.’ (2007) 6 Nw.U.J. Int’l
Hum. Rts. 104; M. Thorme, ‘Establishing Environment As Human Rights.’ (1990-1991) 19 Denv. J. Int’lL. & Pol’y
3001-342.
28 S. Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable Development.’ International
Environmental Agreements: Politics, Law and Economics, Kluwer Academic Publishers, Printed in Netherlands,
2002, pp. 173-194; O. W. Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long
Time Going?’ (2008) 21 Geo. Int’l Envtl.L. Rev. 73.
29 M. Soveroski, ‘Environmental Rights versus Environmental Wrongs: Forum over Substance?’ (2007) RECIEL 16
(3), pp. 261-273.
30 L. A. Mowery, ‘Earth Rights, Human Rights: Can International Environmental Human Rights Affect Corporate
Accountability?’ (2002) 13 Fordharn Entl. Law J. 343.
31 J. W. Nickel, ‘The Human Rights to a Safe Environment: Philosophical Perspective on Its Scope and
Justification’, 18 Yale. J. Intl’L. 28. 281-295.
7
community environmental disputes where District Court is the only legal remedy to solve
environmental disputes. Since community environmental disputes is distinctive from other legal
disputes therefore submitting environmental disputes before the District Court will have an
impact on the victims of pollution and environmental degradation who economically have
weaken bargaining position and can be predicted they will not be the winners.
Possibility of submitting environmental cases to Human Rights Court is not impossible if the
Indonesian Commission of Human Rights (KOMNAS HAM) intends to make a breakthrough
and follow to the practice of the European Commission of Human Rights. In European
Convention on Human Rights there are no provision deals with environment. After the 1972
Stockholm Declaration on Human Environment where Principle I is the political foundation for
environmental human rights. The European Commission realised that there is a link between
between the impairment of environmental rights to the enjoyment of human rights, especially the
right to life. The Commission finally declared the admissible of environmental cases submitted
to European Human Rights Court. Herein, the Indonesian Commission of Human Rights
(KOMNAS HAM) can interpret the provisions in the Human Rights Law of 1999 No. 39 have
some linkages to environmental rights violation.
V. CLOSING REMARKS
The notion of the right to a good and healthy environment under Indonesian laws and regulations
is just a myth. Although it has been guaranteed in The 1945 Constitution and legally protected in
the EMA 2009, the Human Rights Law of 1999 No. 39. The environmental disputes-related
human rights cannot be submitted to Human Rights Court for it is inconsistent to The 2000 Law
No. 26 on Human Rights Court. Only crimes of genocide and of against humanity are under the
jurisdiction of Human Rights Court. As a result, the District Court is the only recourse for the
people seeking for environmental legal justice.
Since environmental disputes are different to those of legal disputes in areas of civil and criminal
laws, the verdicts made by the Court will not be able to satisfy the victims of pollution and
environmental degradation.
It is suggested that reformation in area of the Indonesian legal system is quite urgent in the
future. Establishing special environmental court will be the solution.
REFERENCES
D.F. Nicholson, Environmental Dispute Resolution in Indonesia, PhD thesis, Leiden University,
2005.
D. Marrani, “The Second Anniversary of the Constitutionalisation of the French Charter for the
Environment: Constitutional and Environmental Implications”, (2008) 10 Envtl.L. Rev. 9).
D. Shelton, Human Rights, Environmental Rights, and the Right to Environment, (1991-1992)
28 Stan. J. Int’I. L, p. 103- 138.
J. Cassel, ‘Enforcing Environmental Human Rights: Selected Strategies of US NGOs.’ (2007) 6
Nw.U.J. Int’l Hum. Rts. 104;
8
James W. Nickel, “The Human Rights to a Safe Environment: Philosophical Perspectives on Its
Scope and Justification”, 18 Yale. J. Inter’lL. 281-993;
Luis E. Rodriguez- Rivera, ‘Is the Human Rights to Environment Recognised Under
International Law? It Depends in the Source’, (Winter 2001) 12 Colo. J. Int’l Env’l. L. & Pol’y I.
L. A. Mowery, ‘Earth Rights, Human Rights: Can International Environmental Human Rights
Affect Corporate Accountability?’ (2002) 13 Fordharn Entl. Law J. 343.
Melissa Thorme, “Establishing Environment As a Human Rights”, 1990-1991 19 Denv. J. Int’lL.
& Pol’y 301- 342;
M. Soveroski, ‘Environmental Rights versus Environmental Wrongs: Forum over Substance?’
(2007) RECIEL 16 (3), pp. 261-273.
Ole W. Pedersen, “European Environmental Human Rights and Environmental Rights: A Long
Time Coming”, 2008 21 Geo. Int’l Envtl. L. Rev. 73.
Paolo Galizzi, “From Stockholm to New York, via Rio and Johannesburg: Has the Environment
Lost its Way on the Global Agenda?” (2005) Fordham International Law Journal (29) 5.3, pp.
952-1008.
R.R. Churchill, “Environmental rights in existing human rights treaties,”in Alan Boyle, 1996
Human Rights Approaches to Environmental Protection, Claredon Press-Oxford, pp 91- 108.
S. Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable
Development.’ International Environmental Agreements: Politics, Law and Economics, Kluwer
Academic Publishers, Printed in Netherlands, 2002, pp. 173-194.
Wiley, Daniel D. Chiras, Environmental Science: A Framework for Decision Making, The
Benjamin Cummings Publishing Company, Inc. 2727 Sand Hill Road, Menlo Park, Ca 94025, p.
42.
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