Introduction toIndonesian

Environmental Law

Wahyu Yun SantosoEnvironmental Law Dept.

Faculty of Law UGMEmail: wahyu.yuns@ugm.ac.id

TRADITIONAL AND MODERN CONCEPT OF

ENVO LAW

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

BASIC CONCEPT OFENVIRONMENT

1. Wholistic Understanding

It is important to concern on the integrity of these aspects.

2. Environment: Changes, Complexity, and Uncertainty

CULTURE

ABIOTIC

BIOTIC

MAN IN NATURE

MAN, NATURE, AND CULTURE

DETERMINISMENature - made man

MAN AND NATURE

POSIBILISMEMan - made nature

E M M E

MAN NATURE

ECOLOGICALY - SUSTAINABLE DEVELOPMENT

PROBABILISM

Human Activities and Interactions

Over PressureEnvironmental Capacity

PollutionsOver

Exploitation ofNatural

Resources

Consumeri-zation

Imbalance ofSocial System

Poverty

Over Population

Technology and

Modernity

Hunger

MNC

States(government)

Globalcapitalism

“Interest Coalition”

environmentpeople

damagesacrifice

Effect of modernity in developing countries: intriguing the collaboration between states, global capitalism, and MNC

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

• 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

• 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 resources3. Preservation and protection of ecological supporting system 4. Preservation of biological diversity

THE DEVELOPMENT

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.

NEW PARADIGM ONENVIRONMENTAL 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

PenaltyAvoidance

Externalized

Escalating

Optimal

Needs Driven

Proactive

Prevention

Integrated

Best Practice

Internalized

Sustainable

BACKGROUND OF INDONESIANENVIRONMENTAL LAW DEVELOPMENT

STOCKHOLMDeclaration

(1972)

RIO DE JANEIRODeclaration

(1992)

GBHN 1973GBHN 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 Resources2. Eco-Development3. Integrated Policy4. Fairness and Justice Intra and Inter Generations

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

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

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?.

THE ENFORCEMENT

DEFINITION OF ENVIRONMENTAL LAW ENFORCEMENT:

APPLICATION LEGAL GOVERNMENTAL POWERS TO ENSURE COMPLIANCE WITHENVIRONMENTAL PROVISIONS BY MEANS OF :

• ADMINISTRATIVE SUPERVISION• ADMINISTRATIVE MEASURES• CRIMINAL INVESTIGATION• CRIMINAL MEASURES• CIVIL ACTION

PREVENTION - CORRECTION - REPRESSION

NGO HAVE SUPPORTIVE ROLE

VOLUNTARY OBEDIENT

Technical Aid and Consultation for envoControl enhancement (minor/light violation)

OFFICIAL WARNING(light violation cont’d)

Mandatory Audit

Government Compulsion

Permit dismissal/withdrawal

ADMINISTRATIVE MEASURES

GOVERNMENTALCOMPULSION

PERMIT DISMISSAL/WITHDRAWAL

By AUTHORITY

ADMINISTRATIVESANCTION

GUBERNURBUPATI/WALIKOTA

Can be proposed byThird party

ENVIRONMENTALAUDIT

CERTAIN VIOLATIONor SERIOUS VIOLATION

Can be recommended by theHead of municipal region

orInterest Party

1. To stop and prevent further violation2. To deal with the impacts made by the violation3. To do a Reparation and Restoration for the environment or with an amount of money to compensate the damage.

1. Recommended but mandatoryFor certain activities (with big &Important impacts)2. Mandatory3. Done by Indepedent auditors

VIOLATIONSFor Pollutions or Environmental

Damages

CIVILPROCEDURAL

LAW

Class Action

Legal Standing

STRICT LIABILITY

TORT LIABILITY(Liability based on fault)

RequirementsProvided in EMPA

Burden to prove the wrongactivities should not be

bear by the Plaintiff

Certain Activities

Exceptional clauses

1. Numeurosity2. Commonality3. Typicality4. Adequity of representation(PERMA No. 01/2002)

Not a direct Compensation but

reparations

1

4

3

2

Class RepresentativesClass Members Concrete injured parties

Class Action

Environmental NGOs Common Property Legal

Standing

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.

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.

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.

• 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

• 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

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

• 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

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

STRICT LIABILITYUnder the EMPA

For:1. Important Impacts (as well as significant risk);2. Using toxic and harmful subtances in the production process; or3. Producing toxic and harmful wastes

Exceptional clauses:1. Acts of God or State of War;2. Another force majeure;3. Third parties mistakes.

MATERIELDELICTI

FORMALDELICTI

DELICTICORPORATE

CRIMINALLIABILITY

“IMPACTS” of pollutions

orDamages

“WRONG ACTS” as violation and

breach of regulation

Beyond reasonabledoubt

Crime made underOrder or hierarcyOf organizations

Prove the impacts

CRIMINALSANCTION

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