An opinion by Norman Jiwan
This article tries to explore and review applicable sources of interpretation and information with regards to land and human rights. In 2015, the United Nations High Commissioner on Human Rights published Land and Human Rights: Standards and Applications. This is a one of most important sources of legal interpretation of international human rights laws that summarizes applicable international human rights standards relevant with land and human rights. It draws all fields of human rights namely (1) non-discrimination and equality; (2) rule of law; (3) right to adequate food; (4) right to adequate housing; (5) right to effective remedy; (6) right to freedom of movement and residence; (7) rights to freedom of opinion, expression, assembly and association; (8) right to freedom of religion; (9) right to information; (10) right to life; (11) right to participation; (12) right to property; (13) right to self-determination; (14) right to take part in cultural life; (15) right to water and sanitation; (16) rights of indigenous peoples to their traditional lands, territories and resources, including water; (17) rights of human rights defenders working on land issues; (18) safeguards against limitation of human rights for public interest; (19) responsibilities of business enterprises and State duties; and (20) International Humanitarian and Criminal Law.
The 4th Amendment of 1945 Constitution (UUD 1945) draws and establishes Chapter XA that stipulates fundamental elements of human rights in Indonesian highest norms and legal framework. This fundamental legal framework becomes major sources of policies, laws and implementing regulations. It shall be a legal reference for adjustment and harmonization towards eliminating and reforming the unjust colonial doctrines and legal practices, discriminatory laws and regulations. There should be no privilege for State and non corporate actors exploit and enjoy the benefits from discriminatory laws and lenience regulations.
Exploiting legal loopholes, for examples, business practices and operations lead to excessive exploitation of land, forests, and natural resources; harassment of workers, smallholders, contractors, etc.; intimidation of agrarian, peasant and women activists; manipulation of local elites; and criminalization against community leaders and rights defenders.
Second examples of justifying non legal means used by palm oil producers, owners, operators, suppliers and investors in order to expropriate land rights, forest and other natural resources from indigenous peoples and local communities namely operating business non exist laws and implementing regulations on FPIC; non exist local regulation on the recognition of rights of indigenous peoples; invoking illegitimate sultanate authorities and rights over indigenous territories and resources, etc.
Some examples of violations of the principles of and FPIC in practices namely the issuance of principle permit, location permit, environmental management license, mill building title; manipulation of information; incomplete information; incomplete description of legal information and implication; manipulation of local elites for favorable decisions; fake community representation; empty benefits and false promises; deficient mitigation and explanation of social, economic and environmental impacts;
Land and Human Rights & Indonesian 1945 Constitution
First, Article 28A Every person shall have the right to live and to defend his/her life and existence. Land is major source of life for land based livelihoods, agricultural activities, customary values, ancestral domain and identities. Land has been cultivated, occupied, used and defined distinctive social and cultural status of native communities from migrant communities and transmigration citizens. Land and territories have been major source of livelihoods and home to primary and secondary forests, agroforest trees and fruits, important sources of fishing and hunting grounds, river and water courses, fresh air, non timber forest produce (NTFP), source of herbal and medicines. The many uses, significant values, roles and functions of land have established a strong relation with human identity and integrity which shall define and establish right to live and defend life of every single person in the community. Contemporary development forms and actions, or past practices with intended and unintended impacts and/or results in impairing, compromising, reducing and taking over land and natural resources are violation of the law and human rights.
Second, Article 28C in particular verse (2) Every person shall have the right to improve him/herself through collective struggle for his/her rights to develop his/ her society, nation and state. The collective struggle to secure and exercise the sustainability of, quality and integrity of human rights shaped and established distinct civil, political, social, economic and cultural norms, beliefs, values, and practices. These distinctive and survive traditional values and practices have long been established, defined and influenced the practices and traditions of ancestor’s land use, occupation, cultivation and conservation that survive and inherited since time of immemorial. Any actions and legal measures interfering, preventing and eliminating or business practices that neglect and disregard the collective struggle for human rights to property [land and natural resources] morally unacceptable, legally unjustifiable and shall be punishable by laws. The collective struggle for individual and community rights in land and natural resources is obvious example of rights to develop society, nation and the state. The collective community struggle for land rights and natural resources shall be construed as legal exercises and categorically justified common practices as struggle for freedom and wellbeing of the Indonesians as independent state.
Third, Article 28D verse (1) Every person shall have the rights of recognition, guarantees, protection and certainty before a just law, and of equal treatment before the law. Recognition, protection, enforcement, advancement and enjoyment of property rights are clear forms and basic practices of a just law and of equal treatment before the law. In light of this article, there should no compelling economic and commercial reason for corporate actors including their subsidiaries and suppliers ignoring and avoiding the basic practices of rule of law and equality before the law as human rights. Developmental activities and business operations without due diligence and attention cannot be justified even if the practices occurred in the past when the constitution is not exist. Property right namely to land and other natural resources shall be established and exercised in the rule of law and equal treatment before the law within the framework of recognition, guarantees, protection and certainty. HGU certificates and land titles issued in the past without FPIC and even if no local implementing regulation on FPIC shall not be used and justified to ignore the progressive implementation of Article 28D since its effective in force. The State officials shall not extend and accept any application to renew and extend HGU and land titles that violated Article 28D of the constitution. After the amendment of the constitution, State officials shall have put corrective legal actions are very important to make sure that problematic HGU and land titles do not diminish the customary land rights of indigenous peoples. Private and corporate actors should establish, take and implement internal due diligence and human rights assessment to assess their business impacts on land rights of indigenous peoples and local communities. An ongoing and outstanding land conflicts due to past expropriation should be resolved properly with immediate remedial measures with proper compensation and restitution to the satisfaction of affected parties as well as guarantee of non repetition.
Fourth, Article 28G verse (1) Every person shall have the right to protection of his/herself, family, honour, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right. Land and natural resources are fundamental sources that define, determine and establish elements, shapes and states of individual dignity and property. The integrity, dignity and identity of individual and group of individual persons exist and establish economic, social and cultural relations and interactions that form family and community where the collectiveness of individual persons whose human rights to protection of his/her property namely land and natural resources both individuals and collective ownerships.
Ratification of international human rights laws
Indonesia has ratified core united nations’ human rights conventions, into subsequent and respective implementing national laws and regulations relevant with the recognition, guarantee, enforcement and protection of property rights. International convention on civil and political (ICCPR), convention on economic, social and cultural rights (CESCR), convention on the elimination of discrimination against women (CEDAW), international convention on the elimination of all forms of racial discrimination (ICERD), convention on the rights of the child (CRC), and convention on the rights of persons with disabilities (CRPD). In addition to human rights conventions, Indonesia has also ratified into laws some core labour conventions of the International Labour Organisation (ILO). Indonesia also supported and voted in favour of some important declaration of the United Nations especially United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
According to Masstricht Guidelines on the violations of economic, social and cultural rights stipulates that victims, both individuals and groups are entitled to remedies and other responses to violations. Section 22 stipulates that ‘any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels.’ The Guidelines section 23 further stipulates adequate reparation for all victims of violations which may take the form of restitution, compensation, rehabilitation and satisfaction or guarantees of non-repetition. The Guidelines also stipulate provision on acts by non-state entities which derives from the obligation to protect includes the State's responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors.
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