By Dara Masita

Resource Curse: The Challenge in Implementing International Environmental Legal Obligations Regarding Climate Change for a Newly Industrialized Country

By Dara Masita*

ABSTRACT

Indonesia, being one of the climate superpowers, holds responsibility in mitigating its emissions. Due to the fact that Indonesia has abundant resources, however, seeks economic growth at the expense of the environment, they are coined to have the ‘resource curse’. Nevertheless, climate change mitigation is still expected from the parties to the Paris Agreement. This article explores the question, ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change?’. Article 4(2) of the Paris Agreement requires State Parties to submit their Nationally Determined Contributions (NDCs) and pursue mitigation measures in line with their NDCs. Indonesia has conveyed its mitigation plans in their NDCs. However, its state practice is contradicting its NDCs. By exploring Indonesia’s domestic environmental framework, the nation has comprehensive environmental regulations. Nonetheless, their enforcement measures are still lacking. Hence, it should be no surprise that Indonesia is not implementing their international environmental obligations properly. Especially with the new and controversial Omnibus Law which deregulates several environmental regulations. By comparing Indonesia’s NDCs and its state practice, the pattern shows that they are not aligning with their climate change mitigation efforts in Article 4(2). In particular, their mitigation efforts are not enough within the forestry and energy sector. Indonesia’s yearning for economic growth at the expense of the environment should be reevaluated. It is imperative for Indonesia to improve its implementation mechanism since climate change is a global issue and there is more to lose each day.

* LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences. 2022 issue 1 ILSA Law Journal 36

I. INTRODUCTION

The call for environmental protection is of the essence in this alerting period of climate change. As the effects of climate change become increasingly prevalent day by day, it is within the responsibility of states to take action. Especially states that play a critical role in the status quo of climate change. The president of Conference of Parties 26 (COP26), Alok Sharma, referred to this archipelagic state of Indonesia as a ‘climate superpower’.1 The Republic of Indonesia is a newly industrialized country with a gross domestic product of $1.119 trillion. 2 It is also the fourth most populated country with around 278,000,000 citizens.3 Additionally, it is 10th on the list of biggest carbon polluters.4 Furthermore, the abundance of natural resources in Indonesia places it as the second most biodiverse country in the world just behind Brazil.5 Indonesia’s rich forestry, maritime, and mining resources helped the nation develop. For that reason, Indonesia is considered one of the states that possess a critical role in the fight against climate change.6

Despite this, Indonesia’s rich natural resources are vulnerable to human-led destruction. Indonesia is one of the countries suffering from the resource curse. Resource curse is a pattern where resource-rich nations have worse development outcomes compared to their counterparts that possess fewer resources.7 In the case of Indonesia, it is due to the poor governance of

1 Jayanti Nada Shofa, ‘Indonesia Can Become a Climate Superpower: UK’ (JAKARTA GLOBE, 2021) <https://jakartaglobe.id/news/indonesia-can-become-a-climate-superpoweruk#:~:text=Being%20blessed%20with%20abundant%20renewable,the%20current%20total%20energy%20dem and.> accessed 4 February 2022. 2 ‘Indonesia’ (World Bank, 2022) <https://data.worldbank.org/country/ID> accessed 4 February 2022. 3 ibid. 4 ‘Indonesia Population’ (Worldometers, 2021) <https://www.worldometers.info/world-population/indonesiapopulation/> accessed 4 February 2022. 5 ‘The Top 10 Most Biodiverse Countries’ (Mongabay, 2016) < https://news.mongabay.com/2016/05/top-10biodiversecountries/#:~:text=Brazil%20is%20the%20Earth's%20biodiversity,plant%20and%20amphibian%20species%20 counts.> accessed 4 February 2022. 6 Mukhlish Jamal Musa Holle ‘Indonesia can become a global player in the fight against climate change with these two solutions’ (The Conversation, 2021) <https://theconversation.com/indonesia-can-become-a-globalplayer-in-the-fight-against-climate-change-with-these-two-solutions170790#:~:text=Indonesia%20can%20become%20a%20significant,to%20Asia's%20largest%20tropical%20fore st.> accessed 5 February 2022. 7 PWYP Indonesia ‘Natural Resources Management (Rich Regional Resource Curse Index in Natural Resources Mineral and Coal Mining Sector in Indonesia)’ (2020) <Natural Resources Management (Rich Regional Resource Curse Index in Natural Resources Mineral and Coal Mining Sector in Indonesia)> accessed 10 February 2022.

natural resources. An example of this is the outrageous forest fires from the slash-and-burn method in the Bornean rainforest. Farmers burn the forest to make space for palm oil plantations to increase state revenue, while simultaneously eliminating habitats and increasing carbon emissions along the way.8 As a newly industrialized country, Indonesia has ambitious economic goals. Some of which come at the expense of the environment. Indonesia is a party to international conventions and treaties regarding the protection of the environment such as the United Nations Framework Convention on Climate Change (UNFCCC). Additionally, they have ratified the Paris Agreement, the famous convention regarding climate change. In the international sphere, Indonesia pledged that it will commit to the agreements to mitigate its environmental impact as Indonesia is specifically vulnerable to climate change. Nevertheless, recent news stated that Indonesia has been acting contrary to its promises.9

This leads to the question of ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change?’. Investigating this question is essential as identifying the fault and merit in which the State operates (regarding environmental implementation measures) can contribute to a straightforward journey in achieving the international goal of mitigating climate change. This article focuses on mitigation rather than adaptation as mitigation efforts are relatively more comprehensive compared to the adaptation efforts as seen in the NDCs. By addressing the issues, reformations may be done to correct them, while pointing out successes may set examples for other states to follow. Moreover, the investigation may contribute to the researchers and the readers in helping the (international) community towards the desirable direction, towards environmental justice.

This article will explore the Paris Agreement, Indonesia’s environmental legislation, and Indonesia’s environmental practices. Article 4(2) of the Paris Agreement will serve as the standard for international legal obligations regarding climate change mitigation. The reason for this is because the Paris Agreement is the most impactful legal document about climate change

8 Rebecca Wright et al ‘Borneo is burning: How the world’s demand for palm oil is driving deforestation in Indonesia’ (CNN Edition, 2019) <https://edition.cnn.com/interactive/2019/11/asia/borneo-climate-bomb-intlhnk/> accessed 5 February 2022. 9 Heru Asprihanto ‘Environmentalist question Indonesia’s commitment to fighting climate change’ (Reuters, 2021) <https://www.reuters.com/business/cop/environmentalists-question-indonesias-commitment-fightingclimate-change-2021-11-05/> accessed 5 February 2022.

as of date, whereas Article 4(2) focuses on domestic mitigation efforts.10 Afterwards, to comprehend Indonesia’s practices, it is important to examine its legal culture. Subsequently, this article will inspect Indonesia’s state practice regarding the environment to see the effectiveness of their environmental implementation measures. Ultimately, the answer regarding the effectiveness of Indonesia’s international environmental obligations implementation measures can be derived.

This article utilized the doctrinal research method. Studying books, scholarly articles, legislations, news articles, and official documents serves as the source of information. To ensure that the information is credible, the sources used were published no more than ten years prior. The information derived from these sources is the basis for the synthesis in arriving at a solid conclusion.

II. PARIS AGREEMENT: BACKGROUND

A. Regarding the Paris Agreement

The Paris Agreement is a treaty under international law as defined under Article 2 of the 1969 Vienna Convention on the Law of Treaties.11 Indonesia ratified the agreement on 31 October 2016.12 This means that Indonesia is bound by the words of the Paris Agreement. Accordingly, this treaty is a landmark agreement regarding climate change. It differs from previous climate change treaties such as the Kyoto Protocol, as it does not impose quantified emissions targets. 13 The Paris Agreement contains procedural provisions that were not included in previous conventions, such as the emphasis on NDCs and financial aid. However, like other environmental treaties, the wording tends to be vague and the provisions are not necessarily enforceable.14

10 Melissa Denchak ‘Paris Climate Agreement: Everything You Need to Know’ (NRDC, 2021) <https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know#sec-important> 7 February 2022. 11 Daniel Bodansky, 'The Legal Character of the Paris Agreement' (2016) 25 Rev Eur Comp & Int'l Envtl L 143. 12 ‘Indonesia’ (United Nations Climate Change) < https://unfccc.int/node/61083> accessed 4 February 2022. 13 Phillipe Sands and Jacqueline Peel, Principles of International Environmental Law (4th edn, Cambridge University Press 2018) 322.

14

Dina Kassab and Chahir Zaki ‘Agree to Disagree? Making Sense of Vagueness in International Environmental Agreements’ (Economic Research Forum, 2020) Economic Research Forum Working

The lax wording used in the Paris Agreement does not generate a compliance pull as not every provision in the treaty constitutes a legal obligation. The UNFCCC and its parties chose not to make the whole treaty filled with legal obligations. It is possible to see different types of provisions besides a legal obligation in the treaty, such as recommendations or factual observation. This is because states are more wary of entering into legal obligations treaty rather than political ones, as the former impose greater constraints on states’ behavior.15 However, the Paris Agreement provides a transparency and accountability provision which is intended to increase compliance. This means counter-productivity from a state will be noticed and criticized.

The Paris Agreement revolves around three main purposes as laid down in Article 2 of the agreement: mitigation, adaptation, and financial flows.16 Particularly for this article, there will be great emphasis on examining the mitigation aspect as it is the most descriptive of the agreement.

The mitigation aspect of the treaty can be found in Article 4, in which nations are guided on what they can do in order to maintain a global temperature increase of below 2˚C. Furthermore, this Article mandates State Parties to submit their Nationally Determined Contributions (NDCs) every five years. The principle of NDCs is thereby the main technique used to meet the agreement’s objectives.17 The NDC of a State Party includes the nations’ plans on mitigation, adaptation, transparency, and so forth. Therefore, the NDC of Indonesia will be the point of reference for its international environmental obligation.

Paper No. 1405 <https://erf.org.eg/app/uploads/2020/10/1601923927_708_467367_1405.pdf> accessed 15 February 2022. 15 (n 5) Bodansky 145. 16 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) U.N. Doc. FCCC/CP/2015/L.9/Rev/1 art 2. 17 Sands and Peel (9) 321.

1. Article 4(2) of the Paris Agreement as the Legal Standard

Treaties generally have different types of provisions: obligations, recommendations, factual observation and so on.18 To distinguish the type of provision, it is possible to look at the verb contained in the provision. With this, using the verb ‘shall’ denotes that the provision is a legal obligation.19 On the contrary, if the provision utilizes the verbs of ‘should’ or ‘encourage’, the provision is a recommendation.20 Since this article revolves around international environmental obligations, it is necessary to understand the wording of the Paris Agreement to distinguish whether a provision is a legal obligation or the contrary.

For this article, Article 4(2) of the Paris Agreement serves as the legal standard of the research question. Article 4(2) states, ‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’21 This Article can be divided into two parts, the first and second sentence.

The first sentence contains the verb ‘shall’ constituting that this particular provision is a legal obligation. This Article contains the procedural obligations which require states to ‘prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’.22 Thus, the purpose of this sentence is to oblige States Parties, when submitting their nationally determined contributions, to describe the measures they are taking to combat climate change. Meanwhile, the second sentence also contains the verb ‘shall’ which makes it another legal obligation. In this sentence, the Agreement obliges states to ‘pursue domestic measures23’ and add after the comma, ‘with the aim of achieving the objectives of such contributions’ . 24 With this, it draws a connection between the pursuit of domestic measures by the Parties and their NDCs.25 The essence of this second sentence is that states should pursue domestic measures in line with the outlined plan in their NDC.

18 (n 5) Bodansky 145. 19 ibid. 20 ibid. 21 Paris Agreement art 4(2). 22 Paris Agreement art 4(2). 23 Paris Agreement art 4(2). 24 Paris Agreement art 4(2). 25 ibid 146.

In order to apply the provision to this journal article, Indonesia’s NDCs will be examined, as it embodies the first sentence of Article 4(2). While Indonesia’s state practice, which includes its domestic measures, will be the representation of the second sentence of the Article. In breaking down the provision, and assigning each sentence (of the provision) to their respective counterparts, it is clearer to tackle the research question. Therefore, by comparing Indonesia’s NDC to their state practice, it is possible to see whether Indonesia adheres to the essence of Article 4(2) which serves as the standard of their effectiveness in implementing international environmental obligations.

2. Indonesia’s NDCs: The Basis in Comparing to its Environmental State

Practice

To give a background of Indonesia in the climate change scene: Indonesia is a non-annex I country due to its geographical conditions. Two-thirds of Indonesia’s territory is covered by water.26 As an archipelago, there are small islands and with 60% of the population living at the coast, are vulnerable to the effects of climate change, namely rising sea levels.27 On the more arid regions of Indonesia, the islands are susceptible to droughts and wildfires.28 Whereas areas experiencing heavy rainfall would most likely flood due to the lack of drainage. This is due to a lack of solid infrastructure and poor distribution of wealth across the nation, making it a challenge for citizens to adapt to the changing conditions.

With that being said, Indonesia has high stakes of vulnerability if more changes in the climate were to occur. Hence, Indonesia is expected to have strong implementation measures of international environmental obligations. Especially, regarding the mitigation of climate

26‘Facts and Figures’ (Sekretariat Kabinet Republik Indonesia, 2022) <https://setkab.go.id/indonesias-maritimefulcrum-and-tourismchallenges/#:~:text=Indonesia%20has%20total%20area%20of,the%20length%20of%2054%2C716%20km.> accessed 8 February 2022. 27 Rudiarto I and Handayani W, ‘A Regional Perspective on Urbanization and Climate-Related Disasters in the Northern Coastal Region of Central Java, Indonesia’ (2018) 7 Land 34 <http://dx.doi.org/10.3390/land7010034> accessed 8 February 2022. 28 ‘BMKG Ingatkan Daerah Diprediksi Alami Kekeringan Waspada Kebakaran Hutan’ (Merdeka, 2021) <https://www.merdeka.com/peristiwa/bmkg-ingatkan-daerah-diprediksi-alami-kekeringan-waspada-kebakaranhutan.html> accessed 8 February 2022.

change, as they are a globally significant polluter. So far, Indonesia has submitted its NDCs for the international community to be informed of their plans, making them one of the 11 countries that have submitted two NDCs (for 2016 and 2021).29 Therefore, analyzing its NDCs illustrates a picture of what to expect from Indonesia.

Indonesia’s NDC highlights Indonesia’s mitigation and adaptation efforts. The emission data from the first Biennial Update Report (BUR) shows that the national greenhouse gas (GHG) emissions were at 1.453 GtCO2e in 2012.30 The emissions are mainly caused by peatland fire (47.8%) and energy (34.9%).31However, the second BUR in 2016 showed that national emissions were at 1.457 GtCO2e, while peatland fire constituted 43.59% and energy 36.9% of the emissions.32 Due to these numbers, Indonesia set an unconditional target of reducing 29% of emissions, and a conditional target (with the help of the international community) of reducing 41% of emissions by 2030.33 This reduction target was set in the first NDC in 2016. At that time, the carbon emissions were at 2.14 tCO2e.34 Furthermore, in 2019 emissions peaked at 2.44 tCO2e, and by 2020 they went down to 2.16 tCO2e. This recent decrease in emission was most likely due to the stagnant productivity caused by the coronavirus pandemic. Nonetheless, this data shows there is still an increasing trend in emissions.

In the forestry sector, Indonesia expects 20 million hectares of peatland restorations and 12 mill hectares of degraded land rehabilitation by 2030.35 Meanwhile, the Reducing Emissions from Deforestation and Forest Degradation (REDD+) program created by the UNFCCC, in which Indonesia is a pioneer, is considered to be an important component of the NDC for the

29 ‘Nationally Determined Contributions (NDCs)’ (United Nations Climate Change) <https://unfccc.int/processand-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/nationally-determinedcontributions-ndcs> accessed 4 February 2022. 30 ‘First Nationally Determined Contribution Republic of Indonesia’ (2016) <https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Indonesia%20First/First%20NDC%20Indonesi a_submitted%20to%20UNFCCC%20Set_November%20%202016.pdf> accessed 4 February 2022, 6. 31 ibid. 32 ibid. 33 ibid. 34 Global Carbon Project ‘Indonesia: CO2 Country Profile’ (Our World in Data, 2021) < https://ourworldindata.org/co2/country/indonesia> accessed 5 February 2022. 35 ‘Updated Nationally Determined Contribution Republic of Indonesia’ (United Nations Climate Change, 2021) <https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Indonesia%20First/Updated%20NDC%20Indo nesia%202021%20-%20corrected%20version.pdf> accessed 5 February 2022.

land-use sector.36 Indonesia’s Forest Reference Emission Level (FREL) for REDD+ was submitted to the UNFCCC in December 2015. The government proposed a rate of 0.568 GtCO2e yr -1 from its forest rehabilitation.37

In regards to the energy sector, Indonesia is keen on developing clean energy resources in the form of a national policy directive.38 Government Regulation No. 79/2014 on National Energy Policy laid down the following goals for 2025 and 2050 for the composition of the energy mix: a) New and renewable energy at least 23% in 2025 at least 31% in 2050 b) Oil should be less than 25% in 2025 and less than 20% in 2050 c) Coal should be a minimum of 30% in 2025 and a minimum 25% in 2050 d) Gas should be a minimum 22% (2025) and a minimum 24% in 2050.

In the waste management sector, the Indonesian government is committed to improving policy and institutional capacity at the local level. The government is eager to promote the ‘Reduce, Reuse, Recycle’ approach and also the transforming waste and garbage into energy programs. 39

These points of the NDCs are motivating and ambitious. Indonesia is a large nation with a lot of environmental potentials. Successful mitigation of this scale will impact the environmental scene of the world. With that being said, these ambitions have to be compared with the acts of the state. The purpose of the comparison is to deduct whether Indonesia is indeed implementing these planned mitigation programs.

B. The Roots of Indonesia’s Environmental Legal Framework

In addition to the NDC, Indonesia’s environmental legal framework should be examined. This is because it is important to understand Indonesia’s legal culture concerning the

36 ibid. 37 ibid. 38 ibid. 39 ibid.

environment in order to understand Indonesia’s approach towards their implementation of international environmental obligations.

The basis of Indonesia’s environmental law stems from the Indonesian Constitution. Article 33(3) of the Constitution states that, “Land and water and the natural resources contained therein shall be controlled by the State and be utilized for the greatest welfare of the people.”40 This Article shows that Indonesia adopted an anthropocentric view towards the environment, stressing the importance of the environment in benefitting the people. Specifically, the state’s approach towards natural resource management is to increase the economic growth development to enhance state revenue since the 1960s. 41 Consequently, the Indonesian government sees the environment more as an economic system, rather than an ecological one.

1. Introduction Regarding the Indonesia’s Domestic Environmental Legislations

Indonesia’s first comprehensive environmental legislation is the Human Environment Management Act of 1997.42 This legislation has been influenced by the Stockholm Declaration, where the environmental justice system and the principle of enforcement were introduced.43 This act introduced compliance and sanction mechanisms to ensure enforcement. Moreover, this Act led to the development of the most significant environmental law in the country, Law No. 32/2009 regarding environmental protection and management. This legislation states that everyone has the same right to a healthy environment, but everyone also bears two obligations: to maintain the environmental function and sustainability and to prevent and resolve environmental pollution and destruction.44 Furthermore, the legislation also specifies the need for businesses or any person who conducts activities, to have permits when undergoing activities in the natural scene.45 This also includes the requirement of a mandatory environmental impact assessment (EIA) before businesses may conduct any activity. Chapter

40 Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (The Indonesian Constitution), art 33(3). 41 Stenly ‘The Effect of Natural Resource Abundance on Economic Growth: Case of Indonesia’ (Erasmus University Thesis Repository, 2015) <https://thesis.eur.nl/pub/33405> accessed 3 May 2022, 2. 42 Undang-Undang No. 32 Tahun 1997 tentang Pengelolaan Lingkungan Hidup (Law on Environmental Management). 43 United Nations Conference on the Human Environment (Stockholm Declaration) (1972). 44 Undang-Undang No. 32 Tahun 2009 tentang Perlindungan dan Pengelolaan Lingkungan Hidup (Law No. 32/2009), art 1(2). 45 ibid, art 1(35).

XII of the legislation specifies the legal sanctions that are imposed on those who pollute the environment.46 These sanctions range from prison sentences to fines depending on the severity of the act.

Another environmental legislation is Law No. 31/2009 regarding meteorology, climatology, and geophysics. Chapter X of this legislation concerns climate change. Article 65(1) of the legislation states that the government shall conduct mitigation and adaptation measures to fight climate change.47 Furthermore, Article 65(2) elaborates on supporting mitigation and adaptation efforts through planning, strategizing, and coordinating activities on the handling of climate change, and the implementation of monitoring and evaluation regarding the impacts of climate change.48 Even so, this legislation is very limited on the environmental aspect is not as comprehensive as Law No. 32/2009, which is why this article will focus on Law No. 32/2009 as the basis for the domestic environmental legislation.

Law No. 32/2009 is progressive in the Indonesian environmental scene. Unfortunately, due to Indonesia’s desire for economic prosperity, the government does not attempt to enforce the obligation to preserve environmental sustainability.49 Indonesia encounters difficulties in the environmental enforcement field. The difficulties in enforcement are rooted in the lack of resource allocation for proper enforcement measures.

An example of this can be taken from Sidoarjo, a region in East Java. Sidoarjo is an industrial area, and scientists noted environmental degradation in the area due to industrial pollution.50 Law No. 32/2009 stresses the requirement of permits and use of EIAs by businesses in order not to pollute the environment.51 One major issue is the fact that the EIA system is defective. After companies have completed their EIA and obtained their license or permit, the

46 ibid, chapter XII. 47 Undang-Undang No. 31 Tahun 2009 tentang Meteorologi, Klimatologi, dan Geofisika (Law No. 31/2009), art 65(1). 48 ibid art 65(2). 49 Ismu Gunadi Widodo, J. Andy Hartanto, Eddy Pranjoto W. and Jonaedi Efendi ‘Contraints on Enforcement of Environmental Law Against Corporate Defendants’ (2019) 49/1 Environmental Policy and Law 76, 77. 50 Suparno 'Sungai di Sidoarjo Dipenuhi Busa, Dinas Lingkungan Hidup Ambil Sample Air’ (detiknews, 2020) <https://news.detik.com/berita-jawa-timur/d-4864403/sungai-di-sidoarjo-dipenuhi-busa-dinas-lingkunganhidup-ambil-sample-air> 5 February 2022. 51 Law No. 32/2009 art 36(1).

government does not check environmental conditions.52 Secondly, there is a lack of human resources allocated in Sidoarjo to monitor companies’ compliance with environmental regulations.53 Thirdly, the number of law enforcement officials is limited and they are not competent enough to deal with environmental crimes.54 A local citizen of the area said that investigators are less observant and careful in conducting investigations of environmental crimes, and they do not understand the norms that apply to environmental cases.55 Other faults are the absence or limitation of facilities to support environmental enforcement, lax environmental licensing, the lack of community participation, and corruption. All these factors make Indonesia’s domestic environmental scene highly vulnerable.

2. An environmental threat: the Omnibus Law

On 5 October 2020, Indonesia’s People’s Representative Council (DPR) passed the Omnibus Law on Job Creation.56 This law faced massive backlashes and took students, workers, and religious conservatives to the streets. It also received criticism from experts and 35 global investors.57 The purpose of this law is to boost economic revenue at the expense of the social and environmental setting of the nation. There was a series of deregulations regarding environmental protection. Thirty Articles under Law No. 32/2009 were amended, 17 were removed, and one Article was added.58 This leads Indonesia’s already vulnerable resources to become even more vulnerable. Due to the lex posterior principle, this controversial law will prevail over previous environmental legislation.

There are two striking points regarding environmental protection in the Omnibus Law. The first one is the removal of environmental impact assessment, referred to as Amdal in the

52 Widodo et al 81. 53 ibid. 54 ibid. 55 ibid. 56 Draft Bill on Job Creation (2020) (Omnibus Law). 57 Hans Nicholas Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’ (Mongabay, 2020) < https://news.mongabay.com/2020/11/indonesia-omnibus-law-global-investor-letter/> accessed 2 February 2022. 58 Indonesian Center for Environmental Law ‘Degradation of Environmental Protection Management Instruments under Draft Bill on Job Creation’ (Indonesian Center for Environmental Law, 2020) <https://icel.or.id/wp-content/uploads/DEGRADATION-OF-ENVIRONMENTAL-PROTECTION-ANDMANAGEMENT-INSTRUMENTS-UNDER-DRAFT-BILL-ON-JOB-CREATION. -REV.YF_.pdf> accessed 6 February 2022, 1.

Indonesian acronym. Article 36 of Law No. 32/2009 requires businesses to have this Amdal.59However, Article 32(14) of the Omnibus Law states that “Requirements of Article 36 (of Law No. 32/2009) are erased”.60 This sounds problematic for the environment, but the Minister of the Environment and Forestry, Ms. Siti Nurbaya Bakar argued that integrating Amdal within the business permits (rather than having it separately) would strengthen environmental protection.61 This integration means that a business will risk its whole working permit rather than just the environmental permit when there is an environmental concern. This law also intends to remove the Amdal commission which consists of the affected communities, environmental experts, and activists.62 In reality, by removing the Amdal commission and integrating it within the central government will produce Amdals of lesser quality.63 This is because public participation plays a key role in the Amdal process, by removing it, the new Amdals will not reflect the local community’s values.

The second point is the diminishing possibilities for public participation. Article 26 of Law No. 32/200964 covers public participation during the Amdal process.65 However, Omnibus Law Article 26 narrows the limit of public participation for the Amdal process. This limitation only makes it possible for those who are directly impacted by the companies’ conduct to speak up for the Amdal. This excludes environmental groups or the general community. Ms. Bakar reasoned this limitation by saying that, ‘The interests of the locals have often been diluted by indirect outside interests.’66 In fact, this has never been the case since the government itself does not provide adequate access to information about the environment, thus NGOs are normally the ones reaching out to the affected communities. For instance, the high-profile case of Kendeng in Central Java against a cement factory embodies the need for public participation. In this case, local farmers only challenged the project’s environmental permit when activists reached out. The activists had to inform them of the damage that the cement factory would cause which includes health problems, decrease in clean water, and destruction in the flora and

59 Law No. 32/2009 art 36. 60 Omnibus Law, art 32(14). 61 ‘Siti Nurbaya Jawab Tuduhan Investor Global Soal Amdal Omnibus’ (CNN Indonesia, 2020) <https://www.cnnindonesia.com/nasional/20201017191534-20-559623/siti-nurbaya-jawab-tuduhan-investorglobal-soal-amdal-omnibus> accessed 7 February 2022. 62 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’. 63 ibid. 64 Law No. 32/2009 art 36. 65 Law No. 32/2009 art 36. 66 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

fauna.67 This shows that the new Omnibus legislation makes it easier for businesses to function at the expense of the environment.

Overall, Indonesia’s Law No. 32/2009 is relatively comprehensive and progressive.68 However, without strict enforcement, it will not be effective. On top of that, the passing of the Omnibus Law for the purpose of economic growth is highly problematic for the environment. This problem is endorsed by the 35 global investors (based in England, the Netherlands, Japan, and other countries) who have expressed their concerns regarding the environmental repercussions of the job creation bill.69 The global investors are worried that this rollback of regulations will jeopardize their global efforts to mitigate climate change in the Paris Agreement as Indonesia is a climate superpower.70

C. Examination of State Practice

The second sentence of Article 4(2) of the Paris Agreement states that “ (…) Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contribution.”71 Thus, it should be expected—pacta sunt servanda—that Indonesia pursues climate mitigation action. Society can identify whether a state has effectively implemented climate mitigation measures on the basis of whether (i) the state’s practice is in line with the state’s NDCs, and whether (ii) the state’s acts do not encourage environmental degradation (i.e increased emission, deforestation, and others). Therefore, Indonesia’s state practice should be compared to its NDCs.

67 Prischa Listiningrum and Rizqi Bachtiat ‘The Emergence of Access to Environmental Justice in Indonesia (A Case Study on Mining for Cement in Kendeng Mountains)’ (2018) 59 Advances in Economics, Business and Management Research: International Conference on Energy and Mining Law 236, 238. 68 Law No. 32/2009. 69 Matthew Green ‘Global investors warn Indonesia that jobs bill puts forests at risk’ (Reuters, 2020) <https://www.reuters.com/article/us-indonesia-economy-law-investors-idUSKBN26Q1GZ> accessed 5 February 2022. 70 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’. 71 (n 9) Paris Agreement art 4(2).

1. Forestry Sector

In the forestry sector, it was explained above that Indonesia aims to restore 20 million ha of peatlands and rehabilitate 12 mill ha of degraded land by 2030. Regarding the peatlands, there is progress by Indonesia. In 2016, the government formed the Restoration of Peatlands and Mangroves (BRGM) to achieve this goal from their NDC. The BRGM has so far restored 300,000 ha of peatlands across the archipelago.72 Indonesia aims to restore 1.2 million ha by 2024.73 This is promising news as peatlands help contain water to prevent floods and at the same time constitute important carbon reducers.

Unfortunately, the news is not as promising regarding the forests. Indonesia is one of the biggest palm oil producers, which means that natural forests are burned down to make space for palm plantations. The year 2021 represents the end of Indonesia’s Palm Oil Moratorium (Moratorium Sawit). This moratorium bans the government from issuing new licenses for palm oil plantations. The idea behind this is to preserve forest biodiversity as Indonesia’s slash-andburn method for providing new land for palm plantations caused a massive haze that affected the whole of Southeast Asia.74 The controversy in this issue is that the government has not called to renew the moratorium. The Omnibus Law contributes to the weakening of its reevaluation. This ultimately led to activists and environmental groups speaking up about the lack of commitment by the government to renew the moratorium. It should also be noted that in the 2016 NDC, Indonesia included in its mitigation section “(…)instituting a moratorium on the clearing of primary forests and by prohibiting conversion of its remaining forests by reducing deforestation and forest degradation (...)”.75 However, in the 2021 NDC, Indonesia did not include the aim of issuing moratoriums for the forest in the mitigation section. There is only very little difference between the 2016 and 2021 NDC in the mitigation section, the 2021 NDC simply has more scientific updates on it. However, the government chose to move the moratorium paragraph to its General Policy section. This nuanced alteration symbolizes that the government is not fixed on the idea of renewing the moratorium yet.

72 Betty Herlina ‘Minilik Kembali Komitment Restorasi Lahan Gambut oleh Pemerintah’ (dw, 2022) <https://www.dw.com/id/sejauh-mana-implementasi-restorasi-lahan-gambut/a-60626545> 6 February 2022. 73 ibid. 74 The Oil Palm ‘Inconvenient Truth about Palm Oil’s Role in the Haze’ (The Oil Palm, 2019) < https://theoilpalm.org/inconvenient-truth-about-palm-oils-role-in-the-haze/> accessed 6 February 2022. 75 (n 30) Indonesia’s NDC (2016) 2.

Furthermore, concerning lax environmental enforcement, the Moratorium Sawit also suffers from poor implementation. There are coordination problems in the government ministries and agencies, and in the local governments concerning the implementation of regulations. This poor enforcement is due to similar set of problems, namely lack of competent human resources to enforce environmental obligations,as specified before (in section II(B)(1)).

In other news, Indonesian Minister of Environment and Forestry Ms. Bakar, stated that forest fires have gone down to 82% in 2020.76 However, Ms. Bakar is a controversial figure as the Minister of the Environment and Forestry.77 Her pro-development stance on the environment makes it difficult for citizens to be convinced of her words. On 3 November 2021, in the midst of COP26, she tweeted, “The massive development of President Jokowi’s era must not be stopped in the name of carbon emissions or deforestation.”78 This statement was widely criticized by the environmental community, as Ms. Bakar seems to be more pro-building rather than pro-environment. This statement from the Minister shows that deforestation will still be conducted in Indonesia because Indonesia has not achieved the state of development that it aspires to. In her Twitter thread, Ms. Bakar explained that developing natural resources for the people’s welfare is enshrined in Indonesia’s Constitution.79 She argued that zero deforestation in Indonesia by 2030 is neither right nor fair.80 An example she gave to support her argument was that there are roads in Borneo and Sumatra that are disturbed because they are crossing a

76 ‘Siti Nurbaya Usai Kritik Deforestasi: Pembangunan Harus Seimbang’ (CNN Indonesia, 2021) < https://www.cnnindonesia.com/nasional/20211105155729-20-717229/siti-nurbaya-usai-kritik-deforestasipembangunan-harus-seimbang> accessed 6 February 2022. 77 Dian Erika Nugraheny ‘Kontroversi Pernyataan Menteri LHK soal Pembangunan dan Deforestasi’ (Twitter, 2021) <https://nasional.kompas.com/read/2021/11/05/06255601/kontroversi-pernyataan-menteri-lhk-soalpembangunan-dan-deforestasi?page=all> accessed 6 February 2022. 78 @SitiNurbayaLHK ‘Pembangunan besar-besaran era Presiden Jokowi tidak boleh berhenti atas nama emisi karbon atau atas nama deforestasi.’ (Twitter, 2021) <https://twitter.com/sitinurbayalhk/status/1455762628035289090> accessed 6 February 2022. 79 @SitiNurbayaLHK ‘Menghentikan pembangunan atas nama zero deforestation sama dengan melawan mandat UUD 1945 untuk values and goals establishment, membangun sasaran nasional untuk kesejahteraan rakyat secara sosial dan ekonomi.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455762634179952640> accessed 6 February 2022. 80@SitiNurbayaLHK ‘Memaksa Indonesia untuk zero deforestation di 2030, jelas tidak tepat dan tidak adil. Karena setiap negara memiliki masalah-masalah kunci sendiri dan dinaungi Undang-Undang Dasar untuk melindungi rakyatnya.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455764406088830979> accessed 6 February 2022.

forest area.81 Due to this, citizens are worried that her pro-development stance will just serve the corporations’ purposes. Additionally, just because the deadline is in eight years, does not mean that deforestation is justified and right today. Instead of constructing her Twitter thread regarding deforestation in a deterring language, Ms. Bakar formulates it in a way that suggests that deforestation is inevitable. With this attitude from the Minister, corporations will have the same mindset as ‘deforestation is inevitable for economic development’ since it also benefits them. As the Minister of the Environment and Forestry—the forefront and incarnation of Indonesia’s environmental policy—a more ecocentric view is needed to protect the environment and pursue the goals of Indonesia’s NDC.

2. Energy Sector

In the energy sector, Indonesia has not been as progressive in switching to renewable energy as it is one of the biggest producers and consumers of coal. In the following COP26, Indonesia agreed to phase out coal by 2040. In COP26, Indonesia also signed a new green energy transition statement, the ‘Global Coal to Clean Power Transition Statement’.82 The agreement includes the retirement of 9.2 gigawatts of coal-fired power plants. However, this move is counterproductive in light of the national plan of Rencana Usaha Penyediaan Tenaga Listrik (RUPTL) (Plan for Electricity Provision), which calls for the increase of 40.6 gigawatts of energy from 2021 to 2030, with one-third of it being derived from coal.83 Hence, 13.8 gigawatts will come from coal. If the government decommissions 9.2 gigawatts of coal power plants tand hen proceeds to add 13.8 gigawatts of electricity from coal power plants, it blocks the effort in achieving net-zero emissions by 2050.

In the Omnibus Law and Law No. 3/2020 regarding mineral and coal mining (Minerba), several clauses benefit the non-renewable energy sector. The fact that some of the figures in

81 @SitiNurbayaLHK ‘Kalau konsepnya tidak ada deforestasi, berarti tidak boleh ada jalan, lalu bagaimana dengan masyarakatnya, apakah mereka harus terisolasi? Sementara negara harus benar-benar hadir di tengah rakyatnya.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455764409909866497> accessed 6 February 2022. 82 ‘Global Coal to Clean Power Transition Statement’ (UN Climate Change Conference UK 2021, 2021) <https://ukcop26.org/global-coal-to-clean-power-transition-statement/> accessed 4 February 2022. 83 ‘National Electricity Business Plan (RUPTL 2021-2030’ (2021) <https://gatrik.esdm.go.id/assets/uploads/download_index/files/38622-ruptl-pln-2021-2030.pdf> accessed 6 February 2022.

the People’s Representative Council (Indonesian legislative body) who drafted the law are tied to this coal sector, served as a bias in the creation of the law. Article 39 of the Omnibus Law (Minerba Law Article 162) specifies that anyone who disrupts the activities of mining businesses with IUP, IUPK, IPR, or SIPB (these are mining permits) holders will be subjected to a maximum of one year in prison or a maximum fee of Rp. 100 million (around €6114).84 Furthermore, Article 39 of the Omnibus Law [Minerba Law Article 128A(2)] allows coal companies to pay 0% royalties. Without paying royalties to the government, these coal companies do not contribute to state revenue. This allows the companies to exploit more of Indonesia’s resources and pollute their surroundings and at the same time make more profits. By easing these regulations, Indonesia may derail the efforts made to switch to renewable energy.

Regarding renewable energy, Indonesia is still in its experimental stage. There is a lot of renewable energy potential in Indonesia, but the government has not explored this potential yet. So far private companies have been the ones progressively exploring renewable energy. Nevertheless, Indonesia is still dominated by non-renewable energy.85

On top of that, several new coal plants are expected to surface in the upcoming years. Even though there is a lot of public criticism, the government proceeds with the plans.86 This is illustrated in the case of Celukan Bawang which is a region in Bali. A large coal plant is about to be constructed in Celukan Bawang. The local government issued an environmental permit to the developer, however, the latter did not acquire the consent of the local community. The permit did not include detailed assessments on the impact of the project on the environment, the health of residents, their livelihoods, and climate change.87 In turn, the court rejected the lawsuit launched by the locals of Celukan Bawang against the local government. The Amici Curiae brief regarding this conflict specifies the number of items pointing out Bali’s governor’s

84 Omnibus Law art 39. 85 International Energy Agency ‘Scaling up renewables in the Java-Bali power system: A case study’ (IEA, 2022) <https://www.iea.org/articles/scaling-up-renewables-in-the-java-bali-power-system-a-case-study> accessed 6 February 2022. 86 Hans Nicholas Jong ‘Indonesia’s coal phaseout is just more business as usual, report says’ (Mongabay, 2021) <https://news.mongabay.com/2021/08/indonesias-coal-phaseout-is-just-more-business-as-usual-report-says/> accessed 6 February 2022. 87 Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

neglect. The brief states that the Amdal88 for the plant fails to apply the principles of Law No. 32/2009, and international climate commitments.89 The violation of the national environmental legislation and international commitments shows a recurring pattern of prioritizing economic prosperity over environmental protection.

3. Waste Management Sector

In the waste management sector, Indonesia’s progress in reducing landfill waste by promoting the ‘Reduce, Reuse, Recycle’ (3R) and ‘Waste to Energy’ (WTE) approach is improving. In 2019, Indonesia was able to reduce, reuse, and recycle 14.58% of its waste, while 34.6% were managed (dumped in landfills or incinerated).90 Whereas in 2020, the 3R approach increased to 16.23% and still the same number of 34.6% in waste management.91 Furthermore, the Governor of West Java decided that all waste must be turned into energy and is constructing a facility that will turn waste to energy.92 This is beneficial for the environment and economy, as a study shows that if 12.37% of municipal solid waste goes to the WTE program, the program is able to create 1,229.695 gigawatts of energy.93 This can save 1,809,208.2 tons of CO2 emission and save the cost of purchasing non-renewable energy.94 In the newest data from the Ministry of Environment and Forestry, there were 22,728,880 tons of waste in 2021.95 With this, there has been 14.6% in waste reduction in 2021, 49.64% were handled, 64.24% were processed, and there is 35.76% of waste that was not processed.96 The waste sector is the most

88 Indonesia’s environmental impact assessment acronym. 89 Amici Curiae Brief: State Administrative Lawsuit on Cancellation of Bali’s Governor Decree No.660.3 / 3985 / IV-A / DISPMPT About Environmental Permit Development of Steam Power Plant (PLTU) given to PT. PLTU CELUKAN BAWANG ON THE VILLAGE ON THE SUPPORT OF GEROKGAK DISTRICT, REGENCY OF BULELENG (Indonesian Center for Environmental Law, 2018) <https://icel.or.id/wpcontent/uploads/CCIA-Amicus-Kasus-No-2GLH2018PTUN.DPS-FINAL-EN-1.pdf> accessed 5 February 2022, 2. 90 ‘Indonesia’s waste management sector still going strong’ (Indonesien, 2021) <https://indonesien.ahk.de/id/infocenter/berita/berita/indonesias-waste-management-sector-still-going-strong> accessed 7 February 2022. 91 ibid. 92 ibid. 93 Farizal Farizal, Radityo Aji, Amar Rachman and Nasruddin Nasruddin, ‘Indonesia’s Municipal Solid Waste 3R and Waste to Energy Programs’ (2017) 21 Makara Journal of Technology 158 <https://scholarhub.ui.ac.id/cgi/viewcontent.cgi?article=1339&context=mjt> accessed 7 February 2022. 94 ibid. 95 ‘Sistem Informasi Pengelolaan Sampah Nasional’ (Sistem Informasi Pengelolaan Sampah Nasional, 2021) <https://sipsn.menlhk.go.id/sipsn/#> accessed 7 February 2022. 96 ibid.

progressive sector in Indonesia, as a lot of businesses are chiming into the trend of waste management. Additionally, Indonesian education and NGOs are more aware and active in this sector compared to other areas of concern.

D. Analysis: Comparing Indonesia’s NDCs with its State Practice

By aligning Indonesia’s state practice with its NDC, the effectiveness in the implementation of international environmental obligations can be seen. There are several faults within the government’s approach that can be pinpointed. The most pertinent one is the recurring concept of prioritizing economic activity rather than environmental protection. Which leads to substandard environmental enforcement at the local level, even with comprehensive domestic legislation available. Nonetheless, the government strikes hardest with the passing of the Omnibus Law. The deregulation of environmental protection makes it more difficult for Indonesia to commit to international environmental obligations. It has even received global concern that the law might violate Indonesia’s commitments made under the Paris Agreement.

As seen in the forestry sector, the Moratorium Sawit has not been renewed. Even with the moratorium still in place, due to the lack of governmental coordination there is implementation of the moratorium. Additionally, the Minister of the Environment and Forestry is prodevelopment in the forested area. This has a negative connotation seeing that the minister is the one responsible for protecting the environment because most cultural change comes from the top. The encouraging news is that deforestation was not as detrimental as the pre-Paris era and the peatland restorations are adequately increasing as promised. Nevertheless, Indonesia’s NDC for the forestry sector prioritizes reducing emissions from deforestation. Due to the fact that the Moratorium Sawit has not been renewed, the easing environmental regulation from the Omnibus Law, and Ms. Bakar’s remarks; it does not seem as if Indonesia has properly implemented their international environmental obligations in the forestry sector.

In the energy sector, due to Indonesia’s coal dependence, it is remarkably harder for the state to switch to renewable energy. Yet, the issue here seems to be the reluctance in switching to renewable energy due to the strong (political) presence of the coal industry. Firstly, Indonesia signed an agreement to decommission 9.3 gigawatts of coal plants while planning to produce 13.8 gigawatts in coal energy. Secondly, the Omnibus Law, arguably, made it easier for the coal industries to function. Fining persons who disrupt the activities of coal mines can be seen

as ‘silencing’ activists protesting against coal mines. This means that coal mines do not have to worry about protestors as they can threaten them with Article 39 of the Omnibus Law and label them as ‘hindering their activities’. Furthermore, the 0% royalty Article in the Omnibus Law allows coal companies to gain more profit which can increase their exploitation of natural resources and surrounding communities. On top of that, the local governments are not conducting proper EIAs and rejecting lawsuits pertaining to the topic as in the case of Celukan Bawang.

In Indonesia’s NDC for the energy sector, Indonesia proposes that new and renewable energy be at least 23% in 2025.97 The year 2025 is in three years, and from the looks of it, the renewable energy sector is not developed enough yet as the government is too focused on coal energy. The NDC also states that coal should be at a minimum of 30% in 2025, but coal contributed to 63.6% of the energy mix in 2020.98 Reducing the numbers by 50% within three years proves to be difficult, especially with new coal plants, the legislation favoring coal companies, and the lucrative coal business. This shows that as of now, the energy sector does not fully comply with the international environmental obligation to decrease emissions and make the switch to renewable energy.

The waste management sector on the other hand, has progressed as the rate of waste reduction and waste management have increased over the years.99 The general public is participating as companies encourage less waste or the 3Rs in their program. Additionally, the education on waste management in Indonesia is more developed than in the other sectors of concern. Indonesia realizes that effective waste management can bring an increase in economic growth to the nation. This is also the reason why the waste management sector is thriving. While in other sectors, deforestation and coal power plants contribute to the economy more than their green counterparts, the solution for waste management is profitable in itself. An example of this is the Waste and Energy program, in which waste is turned into energy which makes the use of non-renewable energy sources redundant. Therefore, Indonesia’s NDC for waste management aligns with its state practice.

97 (n 35) Indonesia’s NDCs (2021). 98 Statista Research Department ‘Electricity generation by coal Indonesia 2014-2020’ (statista, 2021) <https://www.statista.com/statistics/994184/coal-electricity-generation-indonesia/> accessed 7 February 2022. 99 (n 95) Sistem Informasi Pengelolaan Sampah Nasional.

This investigation shows, that even with abundant natural resources, a nation can still be relatively underdeveloped to pressing problems. Indonesia generally has a substandard implementation in managing its resources in a sustainable manner in relation to the international environmental obligations framework. Based on this analysis, it seems that Indonesia has not fully conformed to Article 4(2). Their desire for economic growth at the cost of the natural environment, deeply emphasized that Indonesia has the resource curse.

III. COCLUSION

In conclusion, it is now possible to answer the question of ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change.’ By examining Indonesia’s environmental obligations laid down in the NDCs and its state practice, it becomes evident that its implementation is not as effective as it could be. Indonesia does not fully adhere to Article 4(2). On the bright side, the only effective implementation takes place in the waste management sector, while other sectors’ implementation measures require improvement. However, this is unsurprising, as Indonesia’s domestic environmental enforcement is not effective either. It showcases that Indonesia is a victim of the resource curse due to poor governance in managing their resources sustainably. Nonetheless, as a climate superpower, Indonesia has the responsibility to follow its international environmental obligations. If Indonesia chooses to do otherwise, it will not only affect the nation itself but the whole world. Therefore, Indonesia’s yearning for economic growth at the expense of the environment should be re-evaluated. Due to that, it is imperative for Indonesia to improve its implementation mechanism as climate change is a global crisis in need of much attention.