THE USE OF HUMAN RIGHTS INSTRUMENTS TO PROTECT THE VICTIMS OF LAND FIRE IN INDONESIA

Achmad Romsan, Akhmad Idris, Mada Apriandi Zuhir, Meria Utama

Abstract

During the long and dry season, land fire which cause smog haze pollution, is a common phenomenon in Indonesia. Although the practice of slash and burn cultivation has no longer in existence after the promulgation of the 1974 Law No. 5 on the Village Government which abolished the Marga Government. Nevertheless, that tradition remained continued practiced by the workers hired by the big palm plantation companies and industries when they open the land to start their activities. it is very surprising that the above practice has resurfaced in the midst of a long dry season that is happening in Indonesia, especially in South Sumatra. Smog and haze resulting from land fire create health problems for the people in South Sumatra, especially in the area where smog and haze located. There are legal instruments as the foundation to claim the healthy environmental rights, the Indonesian Constitution of 1945, The 1999 Law No. 39 on Human Rights and the 2009 Law No. 32 on the Environmental Protection of and the Environmental Management. Herein, the smog and haze pollution are seen to violate the people’s human rights. Unfortunately, the use of human rights law instruments has never been done in Indonesia. Notwithstanding, many community environmental disputes are brought to the District Court rather than to the Indonesian Commission of Human Rights (KOMNAS HAM) for further study.  As a result, the legal instruments above di not fully protect the victims of environmental pollution. This paper suggests the use of human rights provisions as the basis for prosecution for community environmental-human rights related disputes. For that, a comparative study to the practice of the European Human Rights Court will be of beneficial for Indonesia in protecting the people environmental human rights.  In Indonesia the people’s right to a good and healthy environment is constitutional rights and legal rights for it is protected in the Human Rights Law of 1999 No. 39 and Environmental Law of 2009 No. 32. To that end, the human rights approach to the prosecution of environmental disputes are possible because of environmental pollution disturb the enjoyment of human rights.

Keywords

forest fire, land fire, smog and haze pollution, environmental degradation, civil suit.

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References

Achmad Romsan CS, Deforestation in the Sub-District of Tulung Selapan, research Report, Research Institute, Sriwijaya University, 1990.

Achmad Romsan, Massive Forest Fire in South Sumatra toward the Fall of Suharto in 1998. Research Report in collaboration with Forest Fire Project funded by European Union in cooperation with the Department of Forestry of South Sumatra.

Achmad Romsan, Massive Forest Fire in South Sumatra toward the Fall of Suharto in 1998. Research Report, Research Institute, University of Sriwijaya. 2000.

Achmad Romsan, Environmental Human Rights: Problems of Implementation in Indonesia, PhD thesis, Universiti Kebangsaan Malaysia, 2015.

A. V. Cornescu, The Generations of Human Rights, (www. Law mun.cz).

B. D. Ratner, ‘Environmental Rights is a Matter of Survival’(Spring) (2004) 2 (11) Human Rights Dialogue.

B. Hill et al, ‘Human Rights and the Environment: A Synopsis and Some Predictions,’ (2004) 16 (359) Geo. Int'l Envtl. L. Rev, p 399-400.

C. Demin, and D. Zhengaia, ‘Environmental rights: on the perspective of harmonious development between human beings and nature’, Law School of Chongqing University, Chongqing 400044, China (2008) 18 (1) China Population, Resources and Environment, p 189-192.

C. G. San José, Environmental protection and the European Convention on Human Rights, Council of Europe Publishing, 2005.

Fatma Zohra Kesetini’s report entitled “Review of Further Developments in the Fields of Human Rights and the Environment” submitted to the 46th session of the Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities (between year 1992 and 2001).

F.G. Isa, 11 Human Rights, Pedro Amuge Human Rights Institute, Deusto University (www.humanitariannet.deusto.es/publica/.../International%20protect.pdf).

F.C. Evans, Ecosystem as a Basic Unit in Ecology, 1969.

Fuad Amsyari, Prinsip-Prinsip Masalah Pencemaran Lingkungan, Ghalia, 1976.

Friends of the Earth International, Lapindo Brantas and the Mud Volcano Sidoarjo, Indonesia, A background paper prepared for Friends of the Earth International and Friends of the Earth Europe, June 15, 2007.

Hardja Soemantri, Hukum Tata Lingkungan, Penerbit UGM, Yogyakarta, 1983.

Mas Achmad Santosa, Josi Khatarina and Rifqi Sjarief Assegaf, “Introduction: climate change risk, sources and government policies and measures,” in R. Lord et al, (Ed)., Climate Change Liability: Transnational Law and Practice, Cambridge University Press, 2012, p 178- 205.

M. Galpe and A. D. Tarlock, ‘The Use of Scientific Information in Environmental Decision Making,’ (1974), 48 So.Cal.L.Rev, p 371.

Mohammed Sahnoun, "Environnement et développement", Revue algérienne des relations internationales, No. 8, 1987, OPU, Algies in: Mrs. Fatma Zohra Kesentini Report in E/CN.4/Sub.2/1994/9 6 July 1994.

Muandjad Danusaputro, Hukum Lingkungan, Buku II: National, Binacipta Bandung, 1981.

N. A.F. Popovic, ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment.’ (1996) 27 Colum. Human Rights L. Re,’ p 487.

O.C. Ruppel, ‘Third-generation of human rights and the protection of the environment in Namibia’ (http://scholar.google.com.my/scholar)

R. Desgagne, ‘Integrating environmental values into the European Human Rights Convention.’ The American Society of International Law, (1995) 89 A.J.I.L. 263.

Report of the United Nations High Commissioner for Human Rights, 16 December 2011 (A/HRC/19/34).

S. Giorgetta, (2002) 2. The Right to A good and Healthy Environmnt, International Environmental Agreements: Politics, Law and Economic p 173–194.

Sumudu Atapattu, “The Right to a Healthy Life or the Right to Die Polluted?, The Emergence of a Human Rights to a Healthy Environment Under International Law, (2002) 16 Tul. Envil. L. J. p 65, 68.

DOI: https://doi.org/10.20961/yustisia.v7i3.24780

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