Core Human Rights Instruments Applicable to
The human rights referred to in this report are guaranteed under key international human rights instruments to which Indonesia is party in particular the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Racial Discrimination. These international instruments should provide a framework whereby the rights of those affected by the development of plantations are protected, allowing communities to protect their unique culture, to participate meaningfully in decisions about future land use, and ensuring that fundamental rights such as the right to water, to health and to safety at work are protected. Furthermore, the realisation of applicable human rights laws and instruments becomes domestic laws by the government of the
Table 1 – UN Conventions Ratified by
| Treaty | Entry into Force | Ratification or Accession | Entry into Force | Available Procedures |
| International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) | 4 Jan 1969 | 25 June 1999 | 25 July 1999 | Reporting Urgent Action, Follow-Up |
| International Convention on Civil and Political Rights (ICCPR) | 23 March 1976 | 23 Feb 2006 | 23 May 2006 | Reporting, Follow-Up |
| International Convention on Economic, Social, and Cultural Rights (ICESCR) | 03 Jan 1976 | 23 Feb 2006 | 23 May 2006 | Reporting |
| Convention on the Rights of the Child (CRC) | 2 Sept 1990 | 5 Sept 1990 | 5 Dec 1990 | Reporting |
| Convention on the Elimination of Discrimination Against Women (CEDAW) | 3 Sept 1981 | 13 Sept 1984 | 13 Dec 1984 | Reporting |
It has been long debates and discourses regarding the applicability of international laws implementation within arenas of sovereign states especially in implementing international norms and laws of the treaties which are binding to state parties, non-binding UN declarations, and other international instruments. Indeed, the government of
Table 2 – Reservations and Declarations[3]
| Treaty | Reservation or Declaration |
| International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) | Reservation: "The Government of the Republic of Indonesia does not consider itself bound by the provision of Article 22 and takes the position that disputes relating to the interpretation and application of the [Convention] which cannot be settled through the channel provided for in the said article, may be referred to the International Court of Justice only with the consent of all the parties to the dispute." |
| International Convention on Civil and Political Rights (ICCPR) | Declaration: "With reference to Article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of Indonesia declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant paragraph of the Vienna Declaration and Program of Action of 1993, the words "the right of self-determination" appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states." |
| International Convention on Economic, Social, and Cultural Rights (ICESCR) | Declaration: "With reference to Article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of Indonesia declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant paragraph of the Vienna Declaration and Program of Action of 1993, the words "the right of self-determination" appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states." |
| Convention on the Rights of the Child (CRC) | Reservation: “The 1945 Constitution of the |
| Convention on the Elimination of Discrimination Against Women (CEDAW) | Reservation: The Government of the Republic of Indonesia does not consider itself bound by the provisions of article 29, paragraph 1 of this Convention and takes the position that any dispute relating to the interpretation or application of the Convention may only be submitted to arbitration or to the International Court of Justice with the agreement of all the parties to the dispute." |
The enforcements of the conventions are done through the state members have declared itself as parties to the conventions and enforcement by international bodies recognised under the UN Charter. The sovereignty of the state justifies
However, the principles of universality of human rights and their key issues and the principles of the common UN understanding on human rights based approaches (HRBA).[4] Indeed, all interested parties and human rights advocates should to create some creative breakthrough efforts and initiatives towards effective human rights advocacy through available procedures and mechanisms, monitoring and evaluations on implementations of the conventions and their relevant recommendations.
Jurisprudence on indigenous peoples
Besides the above mentioned conventions, within the UN systems also exist other procedures are construed as and sourced of international laws and their interpretations as they provide repeated recommendations of the non-binding declarations and binding-conventions or treaties to the state parties of the UN members. The most recent of such international laws interpretation and implementations are the UN Universal Declaration on Human Rights and UN Declaration on the Rights of the Indigenous Peoples (UNDRIP), UN Special Procedures of the Human Rights Council (HRC), and Guidelines on Indigenous Peoples’ Issues of the UN Development Group. These initiatives and interpretations of the UN standards and rules have been created and paved the way to broader human rights based approaches and effective implementations of the applicable instruments and existing procedures and mechanisms.
United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP) underpins one of historical moments for the indigenous peoples around the world which affects their existence and survival. Firstly, September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP). Secondly, October 18, 2007, the Supreme Court of Belize today handed down a historic and landmark decision affirming the rights of the indigenous Maya communities of
The Special Procedures[7] of the Human Rights Council provided mechanisms where human rights and indigenous peoples’ issues are also highlighted, as of August 2006, which of those to some extent have been working to provide interpretations upon the urgent need to tackle global problems of the indigenous peoples. The most prominent and currently important persons who have been given mandates and temporary duty on behalf of their assigned duty, in particular Prof. Rudolfo Stavenhagen[8] (
The Guidelines on Indigenous Peoples’ Issues of the United Nations Development Group (UNDG)[10] has recently adopted the following issues on (1) self-determination, self-government, autonomy, self-management, (2) lands and territories, (3) natural resources, (4) environmental issues, (5) traditional knowledge, intellectual property, intangible heritage and cultural expressions, (6) administration of justice, indigenous customary laws, (7) health and social security, (8) education, (9) capacity development, vocational training, work employment and occupation, (10) private sector, (11) indigenous women, (12) children and youth, (13) urban indigenous peoples/migration, and (14) data collection and disaggregation.[11] These issues are central to the UNDG towards effective promotion and implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in their key areas of activities and interventions.
Urgent Actions and Recommendations to
Indeed it is obvious that the government of the republic of Indonesia have taken itself position as party to several core human rights conventions or treaties, votes for the UN declarations and other relevant international instruments. It has been made clear all state’s party obligations under the ratified conventions, notwithstanding its reservations and declarations, the state shall ensure effective implementation of the obligations of the state through recognition, protection, promotion, advancement and fulfilment of all peoples’ rights either in alienable individual and collective rights.
The emerging massive expansion of palm oil plantations, coupled with the ongoing and continuous effects of existing plantation and the presence of racially discriminatory laws, including the absence of effective means of recourse at the domestic level, is a situation “requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention” and to reduce the risk of further racial discrimination. There is also a strong likelihood of significant displacement of indigenous persons “resulting from a pattern of racial discrimination or encroachment on the lands of minority communities,” and a substantial threat of immediate and irreparable harm to indigenous peoples in the affected area.[12] For these reasons, it is obvious that the government of the
(a) To take all recommendations of the CERD Committee of the 71st Session, 30 July – 18 August 2007.[13]
(b) The government not proceed with oil palm plantation projects affecting indigenous peoples in disputed district areas in West Kalimantan and other parts in Indonesia, at least until such time as it has legally recognized and secured their ownership rights in and to their traditional lands, territories and resources and obtained their free, prior and informed consent to any development thereon.
(c) To undertake remedial measures to the massive and ongoing rights violations occurring in existing oil palm plantations.
(d) To adopt legislative, administrative and other measures to give full effect to the rights of indigenous peoples, including by amending existing laws, and that it does so with indigenous peoples full and free participation through their own freely chosen representatives.
Civil Society (NGOs) and Community Organisations (CBOs)
(e) Shall optimally approach and use the international available mechanisms and systems within the UN systems and bodies such as draws the attention of the UN Secretary General, Human Rights Council, the Permanent Forum on Indigenous Issues and the Office of the High Commissioner for Human Rights to the serious and urgent situation affecting the indigenous peoples in West Kalimantan and other parts of Indonesia.
[1] February 2008, draft working paper prepared for research on conflicts between oil palm plantations and indigenous peoples; case study from Sanggau district, West Kalimantan, Indonesia
[2] This table was provided by Fergus MacKay, Forest Peoples Programme, August 2007, for internal capacity building on international laws and human rights systems for Sawit Watch and networks included in and modified by Norman Jiwan for this writing purpose.
[3] This table was provided by Fergus MacKay, Forest Peoples Programme, August 2007, for internal capacity building on international laws and human rights systems for Sawit Watch and networks included in and modified by Norman Jiwan for this writing purpose.
[4] The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies (available at http://www.undp.org/governance/docs/HR_Guides_CommonUnderstanding.pdf)
[7] Special procedures' mandates usually call on mandate holders to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. "Special procedures" is the general name given to the mechanisms established by the Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world.
[8] In May 2007, Mr. Rodolfo Stavenhagen, Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, reached conclusion when he identified plantations in Indonesia as placing indigenous peoples “on the verge of completely losing their traditional territories and thus of disappearing as distinct peoples.”
[9] In 26 October 2007, UN independent rights expert calls for five-year freeze on biofuel production; http://www.un.org/apps/news/story.asp?NewsID=24434&Cr=food&Cr1
[10] See two key articles of the United Nations Declaration on the Rights of Indigenous Peoples addressed at the United Nations system…Article 41 ‘the organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.’ Article 42 states ‘the United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.’
[11] United Nations Development Group Guidelines on Indigenous Peoples’ Issues, February 2008; http://www.un.org/esa/socdev/unpfii/documents/UNDG_Guidelines_indigenous_FINAL.pdf
[12] p.7, Request for Consideration of the Situation of Indigenous Peoples in Kalimantan, Indonesia, under the UN Committee on the Elimination of Racial Discrimination’s Urgent Action and Early Warning Procedures, UN Committee on the Elimination of Racial Discrimination, Seventy-First Session, submitted by Sawit Watch, AMAN, other Indonesian organisations and Forest Peoples Programme, 30 July – 18 August 2007.
[13] Concluding observations of the Committee on the Elimination of Racial Discrimination, Seventy-first session,
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