Brief introduction to Indonesian Environmental Law

1. Introduction to
Indonesian Environmental
Law
Wahyu Yun Santoso
Environmental Law Dept.
Faculty of Law UGM
Email: wahyu.yuns@ugm.ac.id

2. TRADITIONALAND MODERN
CONCEPT OF ENVO LAW

3. Influence of Environmental Issues to the Law
(Lynton K. Caldwell, IUCN)
“Legal principle post-1960 much influenced by the
concept of environment/ecology rather than the law”
legal concept
environmental concept

4. BASIC CONCEPT OF
ENVIRONMENT
1. Wholistic Understanding
It is important to concern on the integrity of these aspects.
2. Environment: Changes, Complexity, and Uncertainty
CULTURE
ABIOTIC
BIOTIC

5. MAN IN NATURE
MAN, NATURE, AND CULTURE
DETERMINISME
Nature - made man
MAN AND NATURE
POSIBILISME
Man - made nature
E M M E
MAN NATURE
ECOLOGICALY - SUSTAINABLE DEVELOPMENT
PROBABILISM

6. Human Activities and Interactions
Over Pressure
Environmental Capacity
Pollutions
Over
Exploitation of
Natural
Resources
Consumeri-
zation
Imbalance of
Social System
Poverty
Over
Population
Technology
and
Modernity
Hunger

7. MNC
States
(government)
Global
capitalism
“Interest
Coalition”
environment
people
damagesacrifice
Effect of modernity in developing countries: intriguing the
collaboration between states, global capitalism, and MNC

8. Background of sustainable
development concept:
Environmental damages in third world countries
are threats for developed/industrialized countries
(capitalist countries) since it means as a threat for
the supply of raw materials needed for their
industry.
TRAGEDY OF THE COMMONS

9. • The Bhopal disaster was an
industrial disaster that occurred in
Bhopal, India, resulting in the death
of about 5,000 people.
• The incident took place in the early
hours of the morning of December 3,
1984, in the heart of the city of
Bhopal in the Indian state of Madhya
Pradesh. A Union Carbide subsidiary
pesticide plant released 40 tonnes of
methyl isocyanate (MIC) gas, killing
between 2500 and 5000 people.
Bhopal Case - 1984

10. • United Nations Conference on the Human Environment, 5 – 12 June 1972
• 1987  established World Commission on Environment and Development
(chaired by Gro Harlem Brundtland from Norway)
• Brundtland Reports:
“if it meets the needs of the present without compromising the ability of
future generations to meet their own needs”
• Follow up  World Summit on Sustainable Development (WSSD) 1 – 4
September 2002
• Goals:
1. Preservation of present achievement on the conservation of renewable
resources
2. Conservation and substitution of exhaustible resources
3. Preservation and protection of ecological supporting system
4. Preservation of biological diversity

11. THE DEVELOPMENT

12. Defining the Environment
• Art. 1 UU No. 32/2009: The environment is a unity with all things space,
power, circumstances, and living creatures, including humans and their
behavior, which affect nature itself, the continuity of livelihood, and human
well-being and other living creatures.
• Thailand, National Environmental Quality Act B.E. 2535 (1992), s. 4:
'Environment' means natural things which form the physical and biological
conditions surrounding man and man-made things.
• British Env’l Protection Act 1990, s. 1: The env’t consists of all, or any, of the
following media, namely the air, water and land, and the medium of air
includes the air within buildings and the air within other natural or man-made
structures above or below ground.
• Australia 1990, s. 1: The env’t consists of all, or any, of the following media,
namely the air, water and land, and the medium of air includes the air within
buildings and the air within other natural or man-made structures above or
below ground.
• Dictionary of the Environment (1979) Michael Allaby: the physical, chemical
and biotic condition surrounding and organism.

13. NEW PARADIGM ON
ENVIRONMENTAL MANAGEMENT
Quality of Management
Purpose of Management
Timing of Management
Philosophy of Management
Scope of Management
Motivation
Environmental Costs
Environmental Liabilities
Minimal
Ad hoc
Reactive
Control
Project
Based
Penalty
Avoidance
Externalized
Escalating
Optimal
Needs Driven
Proactive
Prevention
Integrated
Best Practice
Internalized
Sustainable

14. BACKGROUND OF INDONESIAN
ENVIRONMENTAL LAW DEVELOPMENT
STOCKHOLM
Declaration
(1972)
RIO DE JANEIRO
Declaration
(1992)
GBHN 1973
GBHN 1993, PROPENAS 2000
Act No. 4 of1982 (UULH)
Act No. 23 of 1997 (UUPLH)
Act No. 32 of 2009 (UUPPLH)
ECO-SUSTAINABLE DEVELOPMENT principles:
1. Rational Use of Natural Resources
2. Eco-Development
3. Integrated Policy
4. Fairness and Justice Intra and Inter Generations

15. PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL
LAW MADE BY
STOCKHOLM & RIO DE JANEIRO
1. State Responsibility Principle
2. Right to Sound Environment
3. Integrated Approach
4. Popular Participations on Environmental Matters
5. Access of Informations
6. Precautionary Principles
7. Polluter Pays Principle
8. Strict Liability
9. Inter-generational equity
10. the duty to cooperate
11. Share of and access to technology
12. Common Use of Natural Resources
13. Common but Differentiated Responsibility
Harry Supriyono/04/2002

16. Environmental Related Laws
• Hinder-Ordonnantie 1926
• UU 5/1960: Agrarian Law
• UU 11/1974: Water Resources
• UU 5/1990: Conservation Natural Resources
• UU 12/1992: Plantation System
• UU 16/1992: Quarantine
• UU 6/1996: Indonesian Water
• UU 10/1997: Nuclear Power
• UU 15/1997: Transmigration
• UU 41/1999: Forestry
• UU 29/2000: Plant Variety Protection
• UU 22/2001: Oil and Gas
• UU 16/2002: Space Exploration
• UU 28/2002: Building
• UU 27/2003: Geo Thermal
• UU 17/2004: Kyoto Protocol
• UU 19/2004: Forestry (amend)
• UU 4/2006: Trans Genetic Plant
• UU 24/2007: Disaster Management
• UU 26/2007: Spatial Planning
• UU 30/2007: Energy
• UU 18/2008: Waste Management
• UU 4/2009: Mineral and Coal Mining
• UU 30/2009: Electricity
• UU 32/2009: Envo Management Protection
• UU 36/2009: Health
• UU 41/2009: Sustainable Agriculture
• UU 45/2009: Fishery
• UU 11/2010: Cultural Site
• UU 13/2010: Horticulture
• UU 1/2011: Housing
• UU 4/2011: Geospatial Information
• UU 18/2012: Food
• UU 10/2013: Rotterdam Protocol PIC
• UU 11/2013: Nagoya Protocol ABS
• UU 18/2013: Prevention Forest Destruction
• UU 1/2014: Coastal Management
• UU 23/2014: Regional Governance
• UU 32/2014: Maritime

17. Human Right and Environment
 Article 28H Indonesian Constitution (2nd Amandment) : Everyone shall be
entitled to be prosperous, reside, and obtain proper and sound environment
and medical services;
 Three pilars of rights (Aarhus Convention): Access of Information, Public
Participation, and Access to Justice;
 Sustainable Development: Economically Profitable, Socially Equitable, and
Ecologically Responsible;
 Right to Sound Environment  should it be substantive rights or more on
procedural right?;
 Human rights violation is a vertical relation between people and state;
 Problem on extraterritorial human right violation;
 Appeal procedure and instruments?.

18. THE ENFORCEMENT

19. DEFINITION OF
ENVIRONMENTAL LAW ENFORCEMENT:
APPLICATION LEGAL GOVERNMENTAL POWERS
TO ENSURE COMPLIANCE WITH
ENVIRONMENTAL PROVISIONS BY MEANS OF :
• ADMINISTRATIVE SUPERVISION
• ADMINISTRATIVE MEASURES
• CRIMINAL INVESTIGATION
• CRIMINAL MEASURES
• CIVIL ACTION
PREVENTION - CORRECTION - REPRESSION
NGO HAVE SUPPORTIVE ROLE

20. VOLUNTARY OBEDIENT
Technical Aid and Consultation for envo
Control enhancement (minor/light violation)
OFFICIAL WARNING
(light violation cont’d)
Mandatory Audit
Government
Compulsion
Permit
dismissal/
withdrawal
ADMINISTRATIVE MEASURES

21. GOVERNMENTAL
COMPULSION
PERMIT DISMISSAL/
WITHDRAWAL
By AUTHORITY
ADMINISTRATIVE
SANCTION
GUBERNUR
BUPATI/WALIKOTA
Can be proposed by
Third party
ENVIRONMENTAL
AUDIT
CERTAIN VIOLATION
or SERIOUS VIOLATION
Can be recommended by the
Head of municipal region
or
Interest Party
1. To stop and prevent further
violation
2. To deal with the impacts
made by the violation
3. To do a Reparation and
Restoration for the environment
or with an amount of money
to compensate the damage.
1. Recommended but mandatory
For certain activities (with big &
Important impacts)
2. Mandatory
3. Done by Indepedent auditors

22. VIOLATIONS
For Pollutions or Environmental
Damages
CIVIL
PROCEDURAL
LAW
Class Action
Legal Standing
STRICT
LIABILITY
TORT LIABILITY
(Liability based on fault)
Requirements
Provided in EMPA
Burden to prove the wrong
activities should not be
bear by the Plaintiff
Certain Activities
Exceptional clauses
1. Numeurosity
2. Commonality
3. Typicality
4. Adequity of representation
(PERMA No. 01/2002)
Not a direct
Compensation but
reparations
1
4
3
2

23. Class Representatives
Class Members
Concrete injured parties
Class Action
Environmen
tal NGOs Common Property Legal
Standing

24. Requirements
taken from US Federal of Civil Procedure  inspired most
procedure of CA all over the world
1. Numerosity  amount of people who file a claim should be as
much as possible (for practal and efficiency reason)
2. Commonality  there must be a similarity of fact or question of
law between class members and class representative
3. Typicality  a common and single type of claim or law suit.
4. Adequacy of Representation  class representative must have a
integrity of fairness, honesty, and capability to represent the class
members.

25. Several popular CA cases in US
• Agent Orange Product Liability Litigation (January 1979)
 Filed by vietnam veterans for the use of “agent orange” as herbicide in Vietnam.
 Out of Court Settlement (v. Several chemical companies)
 However, no causal relationship was ever established between the alleged
health effects in Vietnam veterans and their exposure to Agent Orange.
 Compensation US $ 250.000.000,- as direct compensation & rehabilitation services 4
future claimant
• Dalkon Shield (1970 – 1989)
 Contraception tools factory  but causing fertility and physical defect for the infants.
 More than 100.000 women felt the impact.
 nation's largest and longest-running product liability cases. The new owners of A. H. Robins Co.,
makers of the intrauterine device, earlier agreed to create a $2.4-billion fund to settle the
outstanding damage claims.

26. Norma R. Broin, Major Mark L Broin & 60.000 airflight attendant v Philips Morris &
14 other tobacco comapnies
• the Secondhand Smokers v. Tobacco Companies 1997
 A law suit filed by Norma Broin (ex-stewardess) who suffered a two degree lungs cancer
 represents another 60.000 airlines crew in Miami  sued the tobacco companies for
their role as passive smokers.
http://law.jrank.org/pages/12908/Broin-et-al-v-Philip-Morris-Incorporated-et-al.html
 Decision: The tobacco companies agreed to settle the injury claim before going to
jury, funding a $300 million research foundation and paying $49 million in
attorney fees and court costs, but not admitting to wrongdoing.
 Tobacco companies obliged to pay US $ 300 juta for study of tobacco related diseases,
but not for the individual compensation.

27. • Before UUPLH (1997) any CA claims have always been
rejected by the judge  as it isn’t ruled in our civil
procedural law
• examples:
 Gugatan Bentoel Remaja by RO Tambunan 1989
 Gugatan Demam Berdarah by Muktar Pakpahan 1990
 Gugatan Patal Senayan (Insan I) 1992
• After UUPLH  lawsuit of YLKI v. PLN in 1997 for massive
shutdown

28. • Prof. Christopher Stone  “Should Trees Have Standing?:
Toward Legal Rights for Natural Objects” 1972
• Giving legal rights to natural objects  since natural object
also have a right eventhough its an inanimatif objects.
• Court  trusteeship for for envo NGOs to claim a remedial
action
GUARDIANSHIP APPROACH

29. Definition and Urgent
• In 1988 when Walhi brought a lawsuit against 5
governmental bodies & PT. Inti Indorayon Utama
for the permit to exploit protected forest.
• claimant didnt represent as injured party & not
as a legal representative  but as organization
represent public interest.
Public Interest Litigation

30. • Standing in broad term  any person or group
access before the court as a claimant.
• in Indonesia  principle “no suits without legal
interest”
• Legal interest  concern on propietary interest or
direct injury suffered by the claimant (injury in act)
• Under UUPLH acknowledged the legal recognition of
environmental standing

31. Anti SLAPP: Anti Strategic Law Suit Against Public Participation
(pasal 66)
Anyone who fight
and struggle for the
right of sound
environment is
protected from
allegation in
criminal or civil
lawsuit.
To protect victims and
whistleblower who stand
before the law to face
environmental pollutions or
damages.
To prevent from any counter-
attack from the defendant
with incrimination and
defamation, and in the other
side promoting court
independency

32. STRICT LIABILITY
Under the EMPA
For:
1. Important Impacts (as well as significant risk);
2. Using toxic and harmful subtances in the
production process; or
3. Producing toxic and harmful wastes
Exceptional clauses:
1. Acts of God or State of War;
2. Another force majeure;
3. Third parties mistakes.

33. MATERIEL
DELICTI
FORMAL
DELICTI
DELICTI
CORPORATE
CRIMINAL
LIABILITY
“IMPACTS”
of pollutions
or
Damages
“WRONG ACTS”
as violation and
breach of
regulation
Beyond reasonable
doubt
Crime made under
Order or hierarcy
Of organizations
Prove the impacts

34. CRIMINAL
SANCTION
1. Make a mix between SUBSIDIARITY PRINCIPLE
(ULTIMUM REMIDIUM) and PREMIUM REMIDI
2. For Ambient Standard Breach, Used if:
a. Administrative sanction is uneffective
b. Mediation and envo ADR is uneffective
c. Civil procedural is uneffective
d. Wrong act is in big scale
e. Massive impacts
f. Causing illness
g. Causing death
3. Premilinary proof
4. Definitive subjects
5. Most breach of law have direct criminal sanction