Description

A safe, healthy, and sustainable environment is prerequisite for the livelihood of every human, making it one of the fundamental human rights. Quality of the environment is undeniably affecting the right to life, right to health and healthy environment, right to food, water, shelter, and property, and rights relating to culture and adequate standard of living. In Indonesia, although these rights have been mainstreamed starting from the 1945 Constitution along with various acts therewith, mere acknowledgment is not enough; effort to fulfil procedural rights namely access to information, public participation, and access to justice, is of equal importance with the substantive rights. However, the said environmental justice in Indonesia is still an ideal out of reach looking at the current de jure and de facto state of affairs of its environmental protection due to legal gap within the existing environmental law framework, and even more jeopardized by one-sided laws made without due regard to the procedural rights for example as seen in the omnibus law on job creation. One of the issues is about public participation in the environmental impact assessment (EIA) process being limited to those who will be directly impacted by the project; other issues are how the right to file objections against the EIA result being curtailed once the EIA is approved, strategic lawsuits against public participation, and the rights of vulnerable people, for instance Adat communities, is at stake because of development projects.
Aarhus Convention and Escazú Agreement share significant commonalities, both in terms of their goals and principles, focusing on environmental democracy through public participation and access to justice. Albeit both are not binding upon Indonesia, they provide elaboration of procedural rights, and this research aims to evaluate the existing environmental law framework in Indonesia whether it has satisfied the threshold of procedural rights articulated within the agreements and interpretative documents thereafter, and other international environmental instruments, within the adopted laws and policies—which, through preliminary assessment, shows that it has not. Another importance is that both are tailored to specific regions addressing main problem within each region respectively. While Aarhus Convention is made for the Europe and Central Asia regarding regional governance, Escazú Agreement places emphasis on protecting environmental human rights defenders due to high levels of violence against them in Latin America and the Caribbean. Therefore, it is also believed that pursuing environmental justice in Indonesia can be accomplished by implementing regional standards within ASEAN. This research will be talking about incorporating procedural human rights elements in the legal framework, and while it does not guarantee environmental justice, it is hoped that it will be able to provide insights to stakeholders involved and raise the awareness on how environmental law should be designed to address environmental injustice felt more by the marginalized and minorities through both substantive and procedural guarantee. Regional integration and collaboration, including the development of agreements on procedural environmental rights, could play a key role in achieving this.