The Compliance with International Environmental Law – Indonesia

8271020473_701241ff21_bINTRODUCTION

Environmental degradation is a global concern. Pollution in one country can have negative impacts on another. Therefore, international cooperation is imperative to dealing with environmental problems. One way in which the world community addresses environmental problems is through the development of international environmental conventions. These conventions are the foundation of international environmental law. While signing a treaty shows a country’s commitment to the goals of the convention, it does not always mean that the treaty will be ratified and made into law or even that it will be enforced.  Indonesia, a country that has signed number of international environmental conventions, will serve as a case study, to highlight challenges and obstacles countries face in terms of complying with international environmental law.

Signing an environmental convention is the first step in the process. Presidents and diplomats may have the power to sign treaties but in most democratic countries, international treaties must be ratified by parliament. This concept, known as a two level game in international policy, can often prevent treaties from being ratified if domestic support for the goals of the treaty is low. A classic example of this was when Bill Clinton signed the Kyoto Protocol. Despite the US being a signatory of the Protocol, its legislative body never ratified the treaty. Indonesia is similar in this sense in that it has failed to ratify all of the conventions of which it has become a signatory member. One of the reasons it has failed to ratify all of the convention is the perceived urgency of that Convention for Indonesia. If the pertinent Convention is expected to have a big impact on society, the Government will work to ratify immediately. Conventions thought to be of lesser importance are often side lined in order to deal with more pressing domestic policy initiatives causing significant time to lapse before an international environmental convention will be ratified. The Stockholm Convention, for example, was signed on May 23, 2001 but was not ratified by Indonesia until July 9, 2009, when Law No.19 of 2009 regarding the Ratification of Stockholm Convention on Persistent Organic Pollutants, was passed. Delayed ratification or failure to ratify a convention is the first of many obstacles governments face in complying with international environmental law.

The ratification process for international agreements in Indonesia is similar to that of many other democratic countries. Ratification can take place through the approval of the President or the House of Representative or Parliament (“Dewan Perwakilan Rakyat or DPR”).[1] After signing the international agreement(s) or convention(s), the Government of Indonesia needs to ratify them. The basis of law regarding ratification of international agreements in Indonesia is Article 11 (1) and (2) of the Constitution (“Undang-undang Dasar 1945 or UUD’45”) and Law No.24 of 2000 regarding International Agreement (October 23, 2000) (“Law on International Agreements”). Indonesia has classified the ratification of international agreement(s) into two categories: Laws issued by the President is in the form of a Presidential Decision (“Keputusan Presiden or KEPPRES”) or laws issued by Parliament (“Undang-Undang or UU”). The Law on International Agreements further states that International Agreements can be ratified through either Laws or Presidential Decisions. However the law specifically states that Environmental International Agreements require the approval of Parliament. Before the Law on International Agreements was issued on 2000, those environmental agreements could be ratified in the form of President Decision or Laws based on the important and less important. For example: Conventions on the Laws of Sea, some of them are in the form of Laws, the others are in the form of the President Decisions.

DISCUSSIONS

By ratifying International Environmental Agreements, Indonesia communicates to the international community that it is committed to sound environmental management and that it has the similar values and goals. Furthermore, ratification signals that domestic policy for the protection of natural resources in Indonesia exists. However the compliance of international environmental law is often complicated in the developing world as countries seek to obtain the highest level of economic development forcing them to compromise on environmental protection and because responsible government organizations often lack the resources necessary to effectively implement the convention.

  1. 1. Increase the Compliance of International Environmental Law

Specialists of international relations insist on the importance of negotiation for ensuring compliance with treaties. The negotiations have the best chance to successful when they are based on elements, which already exist in national law or international conventions like 1972 Stockholm Conference, the 1992 Rio Conference.[2] This is based on the fact that if the convention is based on existing laws, necessary infrastructure such as government ministries are already set up allowing for the monitoring and enforcement of certain laws. If new law or new government departments need to be established in order to comply with international treaties, then compliance with the convention will be delayed and may take many years before it will be effective.

Institutional support at the international level is also critical in terms of compliance at the domestic level. This support can take the form of a well-trained secretariat and regular conferences of the parties. [3] Convention on Wetlands of International Importance especially as Waterfowl Habitat (“Ramsar Convention”) is an example of how conventions require continued participation from countries in order to ensure continued compliance. Ramsar Convention requires the establishment of “a Conference of the Contracting Parties to review and promote the implementation of this Convention. The Bureau shall convene ordinary meetings of the Conference of the Contracting Parties at intervals of not mare than three years, unless the Conference decides otherwise, and extraordinary meeting at the written request of at least two third of the Contracting Parties. Each ordinary meeting of the Conference of the Contracting Parties shall determine the time and venue of the next ordinary meeting (refer to Article 6 Ramsar Convention).”

Each Party must present their report of the implementation of the Ramsar Convention in the Conference of Parties (“CoP”). Parties must also protect wetland areas. As a result, the Indonesian Government designated two Ramsar Sites: The National Park of Berbak (1992) and National Park of Sentarum (1994) (refer to Article 4 of the Ramsar Convention).

Article 4 of the Ramsar Convention:

“Each Contracting Party has to promote the conversation of the wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the list or not, and provide adequately for their wardening.”

Pursuant to the 9th Meeting of Conference of the Contracting Parties to the Ramsar Convention in Kampala, Uganda, the world community recommended that Indonesia designate the new Ramsar site because of Indonesia’s role as the country with the biggest wetlands in the Asia-Pacific region.[4]

  1. 2. The Obstacles for the Application of Environmental Law

Economic Reasons: Domestic Economic Policy goals can hamper compliance of international environmental law as competing forces in the government may be at odds with environmental protection. Powerful economic lobbies in a country may also obtain special dispensations as a way of attracting economic development to depressed areas. In Indonesia, palm-oil is a major industry. Last year, large scale producers pumped out 18.4 million tons in 2008, with exports of 14 millions tons.[5] Several local regions in Indonesia have actively sought to attract foreign investment to further develop palm-oil industries. The palm-oil plantations are established on peat forestland which is a biological diverse type of wetlands. This policy initiative goes directly against the goals of Ramsar. While other countries, the EU in particular, seek to curb the creation of more palm oil plantations on important wetland forests by setting strict standards for palm oil cultivation by prohibiting the development of plantations on forestlands. This requirement will be hard to meet for Indonesian producers as the bulk of the country’s oil palm plantation stand of cleared forestland.[6] While Environmental Ministry officials say that new plantations will not be established on cleared forests, economic ministry officials and regional politicians often express different opinions on the matter. On the other side, Indonesia has taken a strong stance against bomb fishing as it was destroying important coral reefs. These reefs, seen as an import driver of tourism revenue, have become protected through public private partnerships such as the coral triangle initiative. In this sense, the government is following the international convention because it is in line with economic development.

Implementing certain conventions can also have negative impacts on the economy. The farming industry in Indonesia, like all countries, relies heavily on pesticides. Before the Government ratified the Stockholm Convention, the Government only prohibited the use of aldrin, DDT, endrin, heptachlor, mirex, toxaphene, hezachlor benzene as well as PBC pursuant to the Government Regulation No.74 of 2001. It wasn’t until July 9, 2009 that the Government ratified this Convention and prohibited all dangerous production of the 12 listed Persistent Organic Pollutants (“POPs”). It took eight years for all of the POP’s to be banned since a viable alternative to some of the POPs were not available at a commercial level which would allow small scale farmers to earn a living.

It is clear that economic considerations play a large role in not only determining which environmental conventions get ratified but also impact the manner in which they are enforced at the domestic level.

Insufficient knowledge of domestic capabilities for implementation of the International Environment Agreements: The Government sometimes does not understand international environmental rules sufficiently making implementation difficult. Capacity building can help resolving this problem.[7] For example, the Government still has not managed the Ramsar sites effectively based on the Ramsar Guidelines. The CoP of Ramsar Convention suggested Indonesia needs to review the management of Ramsar Sites. In order to build capacity of domestic organizations, the Government needs to work together with international environmental organizations. To give an example, the Indonesian Ministry of Forestry works together with Wetlands International on various projects such as surveying potential conservation sites, wetlands rehabilitation, public awareness and policy – institutional strengthening.[8] Capacity building takes time but it is crucial in terms of ensuring long term compliance with international environmental law.

CONCLUSIONS

International environmental law often represents an idealistic scenario which countries operate in a sustainable manner. Developed countries often dominate the decision making process and ask developing countries to make sacrifices in terms of economic development. Often heads of states or diplomatic envoys sign international environmental conventions as a way of showing that they are committed to international collective decision making on environmental protection. However it is clear that these countries often lack domestic support for these conventions. This is clear based on the fact that it takes many years for treaties to be ratified while some are never made into law. Ratification doesn’t ensure compliance. Economic forces in a country often take a higher role with environmental protection relegated to an after thought. Even willing countries in the developing with domestic support for a convention often lack the resources and effective ministries to implement the policy.


[1] Section 3 Law No.24 of 2000 regarding the International Agreement (October 23, 2000), http://www.bpkp.go.id

[2] Alexandre KISS, Introduction to International Environmental Law, 2nd edition, UNITAR, Geneva 2005, p.57

[3] Alexandre KISS, Introduction to International Environmental Law, 2nd edition, UNITAR, Geneva 2005, p.58.

[4] The Report of 9th Meeting of Conference of the Contracting Parties to the Ramsar Convention on Wetlands in Kampala, Uganda http://www.dephut.go.id/INFORMASI/PHPA/PHKA/Ramsar.htm

[5] Dian ARIFFAHMI, Palm Oil Producers Want Indonesia’s Support on Tough EU Biofuel Regulation, September 13, 2009, http://thejakartaglobe.com/business/palm-oil-producers-want-indonesias-support-on-tough-eu-biofuel-regulation/329698

[6] Ibid.

[7] Alender Kiss pg 57

[8] http://www.wetlands.or.id/profile.php

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