INTRODUCTION
In every individual without
exception being born independent and having equal rights and entitled to life,
freedom and human safety, according to Article 1 of the Universal Declaration
of Human Rights (from now on abbreviated as DUHAM) of December 10, 1948,
"Everyone without exception is born free and has the same dignity and
rights and is entitled to life, freedom and safety as an individual." The
first article clause exclusively says that human rights are natural rights that
humans have from the womb until birth with recognition of equal dignity and
rights.
Human rights or further
abbreviated as human rights, cannot be revoked by individuals, even the State,
even because human rights are not a gift of the State but a gift from God. This
right is the identity of everyone who is fighting for his life. Thin the third
article of the declaration of human rights expiry affirms that "everyone
is entitled to an adequate, decent and prosperous level of living and has the
freedom to voice opinions on the protection of one's safety and even the family
which is part of the nature that is always inherent� in every human being so that his existence
cannot be separated from the historical life of human life" (Sujatmoko, 2016).
Along with the
understanding of human rights that is universal, there is also a human rights
obligation to respect and respect human dignity in the kingdom, Franz M. Suseno, in his writings on human rights, stating that the
principle of human rights lies in the realization that society or humanity
cannot be held in high esteem except that every human being, individual,
without discrimination,� Without
exception, respected (Suseno, n.d.).
Rhoda E. Howard sits the concept of human rights very simply but very factually
because it departs from daily human rights observations in all contexts. Therefore he proposed human rights because he is a human
being, and only this should not be denied. This concept does not discriminate
racial, gender, gender, and religious differences and is no longer politically
and legally relevant and demands equal treatment for everyone (Howard, 2000).
According to Law No. 32 of
2009 on Environmental Protection and Management, Article 36 paragraph (1)
"Any business and/or activity that must have an Environmental Impact
Analysis (AMDAL) or Environmental Management Effort and Environmental Monitoring
Effort (UKL-UPL) must have an environmental permit. Paragraph (2)
"Environmental permits as referred to in paragraph (1) are issued based on
environmental feasibility decisions as referred to in Article 31 or ukl-upl recommendations.
Article 36 paragraphs (1) and
(2) indicate that any business or activity shall have an AMDAL or UKL-UPL.
UKL-UPL is the management and monitoring of businesses and /or activities that
do not have an important impact on the environment that are necessary for the
decision-making process about the implementation of business and/or activities
and will have a sustainable environmental impact and pay attention to the
rights of indigenous peoples in The Village of Sesar.
Beach reclamation
activities were carried out in Bula Subdistrict Sesar
Village, Eastern Seram Regency. Their activities are the construction of fuel
oil (B.B.M.) places that greatly impact the rights of indigenous peoples, where
fishermen look for fish for survival. Before there were beach reclamation
activities, many overgrown mangrove trees. When reclamation activities are
carried out, mangrove trees are cut down so that it impacts marine biota and
has an impact on livelihoods for fishermen in Sesar
village.
The results of the
interview with Abdul Mahu as the village secretary
said at first the village of Sesar, many marine
biota-biota more specifically looper (shrimp) and fish, but when felling
mangrove trees, fishermen have difficulty getting fish. Where the community
settlement is in the development of mangrove trees, the settlement place is in
the form of a banging house. When the water wave season rises to the place of
community settlements
The coastal reclamation
project carried out by the rulers, in this case, the oil company, was carried
out without coordinating with the relevant parties in Bula regency to obtain a
location permit and reclamation implementation permits. And also
without the role of society. Beach reclamation activities were held in May
2020.�� At the beginning of 2021, there
was an action from the Marine and Fisheries Service of the Eastern Seram four
(4) group to stop reclamation activities because it did not have a permit.�
The right to a decent
livelihood for indigenous peoples as a fundamental and primary right cannot be
ignored. Similar to the right to live on the right to the environment, the
right to a decent livelihood is a right that cannot be transferred under any
circumstances (non-derogable right), Neglect of the
environmental rights of indigenous people's related to the right to a decent livelihood
will certainly lead to hunger, malnutrition and endurance that is unable to
resist various attacks of disease. In the end, it will be directed to the
fragility of the growth and development of humankind. It also creates a
condition that does not positively impact the vulnerable, namely indigenous
peoples, whose land and territory are controlled by companies that only attach
importance to their profits. So that the rights of the people are ignored and
inversely proportional to the constitutional order to improve the welfare of
the people. Based on the problems faced by the community, it takes
responsibility for regional Governments of human rights protection for
indigenous peoples.� The formulation of
the problem is "How to protect human rights to the rights of indigenous
communities of Sesar village due to coastal
reclamation".
METHOD
The research method used in
this research is empirical research by collecting data from various parties
that have competence. However, it uses literature studies based on theories,
doctrines and legal norms related to the issues discussed. Primary data is
obtained from communities, village governments, indigenous leaders and related
institutions. The data can be obtained by interviews with relevant parties who
have competence for the problem.
RESULTS AND DISCUSSION
A.
Review of the law of the rights of
indigenous peoples as a form of human rights
Article
28I paragraph (3), the 1945 Constitution affirms that traditional people's
cultural identity and rights are respected following the times and regulations.
Law No. 39 of 1999 on Human Rights also affirms the same substance, in Article
6 reads "In the framework of human rights enforcement, differences and
needs in indigenous law communities must be considered and protected by law,
society and government Government cultural identity of
indigenous peoples, including the right to protected Ulayat land, is in
harmony with the times. This affirmation shows that indigenous peoples in
Indonesia are recognized for their existence constitutionally. This
constitutional support strengthens understanding and awareness to respect and
protect the rights of indigenous peoples.
The
right to housing, a decent livelihood and the right to the environment will be
positively correlated with human rights. The right to the environment,
including fundamental rights, was originally enshrined in a set of instruments
of international law called the International Bill of Human Rights contained in them:� Universal Declaration of Human Rights
(DUHAM),� International Covenant on Civil
and Political Right (ICCPR), International Covenant on Economic, social and
cultural rights (ICESCR) (Sanny, Pieris, & Foekh, 2021).
The
instruments of human rights law that are fought to emphasize respect,
protection and fulfillment of dignity and dignity, are not merely extracted
from western value systems and norms but have a solid foundation of the entire
culture and religion (Muhtaj, 2013).
Therefore Eko Riyadi
emphasizes that human rights crystallizes various value systems and
philosophies and all aspects of his life (Riyadi & Manusia, 2018).� It is also based on the world view of human
rights, a persimmon for the existence and protection of human life and dignity (Muhtaj, 2013). It says that this universal view
and conception of human rights lays the moral foundations of human rights that
are not separated by space, time, place and owned by all human beings.
Thus,
learning from the historical course of human rights of humankind which fought
for the rights of individuals, but in development, collective rights gain
recognition and protection through various instruments of international law.
The protection of indigenous peoples can be seen through various normative
frameworks and international standards governing the rights of indigenous
peoples. And elaborating on several studies, one of which is Ahmad Syofan's research, it can put forward
several instruments of international law governing the rights of indigenous
peoples, the right to a decent life, the right to the environment, culture,
identity and others.
1. Universal Declaration of Human
Rights 1948 (UDHR) 1948
2. International Covenant on Economic,
Social and Cultural Rights� 1966
3. I.L.O. Convention No. 169 of 1989
on Indigenous People
4. Declaration on the
Right of Indigenous People, 2007
As
a basis, the sources of international law mentioned above do not indicate that
such rights are truly enforceable. By itself, countries cannot violate this
right. But the assumption is wrong based on the recognition that based on the
inseparableness and dependence of all human rights and through state practices
that successfully fulfill the rights of The Economic, social and culture and it
can be said that the effective implementation of human rights depends heavily
on the goodwill of the State that upholds the responsibility and obligation to
protect its people. Its responsibilities and obligations should not be dualism.
Still, the recognition, protection, respect, promotion, and protection of human
rights should align with international standards set out in human rights norms (Triyana & Aminoto, 2009).
Concerning
the above description, the rights for indigenous peoples related to decent
living as part of human rights are recognized in the ICESCR in article 11 which
regulates and recognizes the right to a decent livelihood. It does not require
that the right to a decent livelihood be free from the State but rather submits
that the State must respect the right of access, protect its citizens from the
interests of private companies that take over the land.
By
listening to the right of indigenous peoples to the environment which is a
livelihood for a decent life stipulated in Article 11 of the ICESCR provides
recognition and protection to all individuals or communities to be able to
access the right to a decent livelihood this is a right that cannot be
transferred under any circumstances (non-derogable
rights).
According
to Law No. 39 of 1999 on Human Rights, Article 6 affirms that:
�In the framework of human rights enforcement,
differences and needs in indigenous law communities must be considered and
protected by law, society and government cultural identity of indigenous
peoples, including the right to protected Ulayat land harmony with the times.
This
affirmation shows that indigenous peoples in Indonesia are recognized for their
existence constitutionally. This constitutional support strengthens
understanding and awareness for respect and protection. By
itself, the constitutional guarantee also confirms a national policy that
positions the existence of indigenous peoples as part of national and State
life.
Jeremy
Bentham with the Utilitarian mashed emphasized that the law should provide benefit and
happiness for as many people as possible, the greatest happiness of the greats
number (Latipulhayat, 2015).� For them, the measure of happiness for
indigenous peoples cannot use the size of most people. So that is the standard the measure of happiness for indigenous
peoples, who are categorized as minorities, vulnerable, enough they are not
disturbed, enough they are appreciated and respected along with the order of
life. So the act of harassing, marginalizing, removing them from the universe
in the form of homeland, territory and all that is attached to it means that
the name has deprived their happiness of the interests of certain groups of
people. For the indigenous peoples of
happiness can maintain their life balance with the universe, the value system,
and the norm with the creator in their views and beliefs.
In
such a context, it is necessary to lay down the law and its purpose based on
the values and norms of customary law. In general, the purpose of the law that
is acceptable in every space, time place and everyone is a law that creates
good, order and well-being. Well-being will always be a contra with freedom
from want. This means that if the right to prosperity is not guaranteed, it
will impact the emergence of poverty and life deterioration. To achieve the
happiness of individuals and society, the law must achieve four goals, namely
providing a living (subsistence), abundance, security and equality (Latipulhayat, 2015). It is closely related to the
right of indigenous peoples to live, inequality and not discrimination, to be
granted the right to participate, the right to agree to things when it comes to
the rights of indigenous peoples, the right to enjoy the universe with all that
the Almighty and the creator have provided.
B.
Geographical contextual of Fault
Village and the consequences of coastal reclamation
Seram
Regency east is one of the districts located in the eastern part and Seram island of
Maluku province. Where geophysically it is at 128
-130 BT and 02'50 � 04'40 L.S. The area of Eastern Seram regency reaches
15,887.92 km2 which covers a land area of 3,952.08 km and an ocean area,
11935.84 km. Seram Regency in the East consists of 15 subdistricts. Sesar village is in Bula subdistrict with a population of
131,707, and most people with fishermen's livelihoods.
The
results of the interview with the head of the marine section of the Marine and
Fisheries Service branch of the East Seram 4th Seram group Mr. Zachler Papilaya, In the
framework of monitoring marine resources and fisheries in the duty area and
authority of the Branch of the Marine and Fisheries Service, Maluku province
Island IV group found there was coastal reclamation at the site has been
carried out half the development in the form of beach hoarding and wall fences
made as fuel warehouse bases.�
Following
the above conditions, a field review of reclamation activities that do not have
an activity permit is carried out. The steps that have been taken are to
verbally conduct the location manager to the branch office of KP cluster IV to be
socialized, but until now has not faced. The next step is to take measurements
of the area that has been buried and that has not been stockpiled but has been
pegged. Then accompany the reclamation activity stop letter informing Mr.Hengki (who has a B.B.M.
business) Because of this activity without permission.
The
interview results also with a fishing group chaired by Mr. Yusuf. When the
felling of mangrove trees carried out beach reclamation activities, it was
difficult for community sedimentation to get fish.�
Especially in conditions of rain and waves, the fishermen do not go to sea.�
People
do not just pay attention to the problem of waste, but the problems of
regulation that are missed also need to be controlled together. Frankly, the
city government does not have enough personnel to monitor therefore the public
must help supervise and report suspected activities (de Rooy, Salmon, & Nendissa, 2021).
In
implementing local governments�� based on
the Law, the regional govern Government must improve the
welfare of the people and services to the people in the�� region. So the� governed
Government is actively��� and� efficiently��
authorized� to open� and take care of the area following the
aspirations� and� interests of the community as long as it does
not� conflict� with�
national� law� and� Upholds the culture of local wisdom (Muliati, 2016).��
Article
34 paragraph (1) of Law No. 1 of 2014, is "Local communities are�� groups of people who carry out daily living
arrangements based on habits that have been accepted as generally accepted
values but are not entirely dependent on coastal resources". Looking at
article 34 paragraph (1) of Law� No. 1 of
2014,� actually, the reclamation of the
beach or bay is not prohibited as long as it is done to increase the benefits and/or added value of
coastal areas and small islands in terms of technical, environmental, and
socioeconomic aspects (Hulandari & Laturette, 2021).
Likewise with paragraph (2) of this Law states that: The Implementation of
Reclamation as referred to in paragraph (1) shall maintain and pay attention:
a. Sustainability of people's lives
and livelihoods;
b. The balance between
the interests of utilization and the preservation of coastal environmental
functions and small islands; and
c. Technical requirements of
retrieval, dredging and stockpiling of materials.
Article 34
paragraph (1)� of Law� No. 1�
of 2014� paragraph (1) and (2) to
increase the benefits and/or added value of Coastal Areas and Small Islands in
terms of technical, environmental, and socioeconomic aspects, problems that
will arise in the future when reclamation of�
Sesar village�
beaches are causing new problems (Hulandari & Laturette, 2021).
The
purpose of reclamation is to make watery areas that are damaged or have not
been utilized into a new area that is better and useful. The new land area can
be used for residential, industrial, business and shopping areas, airports,
cities, agriculture, alternative transportation lines, roadside freshwater
reservoirs, integrated waste and environmental management areas, and as an old
land protection barrier from the threat of abrasion and to become an integrated
tourist area.
The
positive impact of the implementation of reclamation is to help the country or
city provide land for various purposes, regional arrangements, tourism
development, and community efforts, especially for fishermen. In contrast, the
negative impact due to reclamation activities can disrupt the balance of
ecosystems. Ecoconsistent changes include changes in
current patterns, erosion, and coastal sediments to increase flood hazards, and
potentially environmental disruptions. Therefore, an in-depth study of coastal
reclamation is needed by involving interested parties and competent with the
knowledge possessed.
The rights
and obligations of the community with the reclamation that has been regulated
in Law No. 1 of 2014. Community rights include: 1) Gain access to coastal parts
that have been given location permits and management permits 2) Propose
traditional ikian capture areas.
Communities
in addition to having rights there are also the following obligations: 1)
providing information pleasing to the management of coastal areas 2)
maintaining protecting and maintaining sustainability 3) delivering reports of
the dangers of watering or environmental damage in the region 4) monitoring the
implementation of management plans 5) implementing an agreed coastal area management
program at the village level
In the
utilization of coastal water space that is not following the location permit,
it will be given administrative sanski in the form of
1) Written warning 2) temporary termination of activities 3) closure of location
4) revocation of permit 5) cancellation of permit 6) administrative fines
contained in Law No. 1 of 2014.
C.
State Responsibility For The Rights
of Indigenous Peoples Due to No Coastal Reclamation Permit
The
Constitution of the Unitary State of the Republic of Indonesia has clearly and
firmly formulated and accommodated Indonesia's human rights, as stipulated from
Article 27 to Article 34 of the 1945 Constitution. The right to a decent
livelihood for indigenous peoples is a constitutional obligation of the State.
This is as formulated in Article 28I paragraph (4): protection, promotion,
suppression and fulfillment of human rights is the responsibility of the State,
especially the government in this constitution should affirm the purpose of the
establishment of the Republic of Indonesia which was promoted in the Opening of
the 1945 Constitution in the fourth paragraph, protect all Indonesian blood,
promote the general welfare to educate the life of the nation and participate
in implementing world order based on independence, peace and social justice.
The purpose of this state life will be implemented through its obligation to
fulfill every member's civil, political, socio-economic, and cultural rights.
Reclamation,
however thoroughly planned, will still change coastal conditions and
ecosystems, and also artificial ecosystems that are new will certainly not be
as good as natural. Coastal reclamation has an impact, among others:� First, coastal reclamation to obtain more
land is the worst activity that changes the original landscape of the coast and
coastal areas. This change in landscape will also result in changes in
hydro-oceanography, especially ocean currents and waves, which will certainly
be a major threat to some city's coastal areas. Second, the loss of potential
coastal biological resources, especially some marine biota that has been
utilized by fishing communities, and the next impact is the possibility of
reduced fishermen's catch. In general, ecosystems such as seagrass meadows,
coral reefs, and others have a very important ecological function.� Therefore, if this coastal ecosystem is
damaged, the above functions will be lost, let alone activities such as the
transfer of functions of a coastal area, where physically will be able to
experience enormous pressure and the impact will be more widespread and
complex. Third, there will most likely be changes and transfer of sediment
supplies previously accommodated in reclamation areas and also hoarding in the
process of coastal reclamation can cause changes in surrounding ocean currents
that will further change sedimentation patterns. Fourth, reclamation has an
impact on the destruction of mangrove ecosystems and also coral reefs.
Feasibility studies include
feasibility from technical aspects, economic-financial aspects, and also
Environmental Impact Analysis. This will further result in a decrease in the
environmental quality of fish resources and coastal erosion (Huda, 2013).
Environmental management in
reclamation area spatial planning must consider environmental aspects,
especially energy use, natural resource use, land clearing, waste handling. It
aims to minimize the impact on the environment.
The main reference in
environmental management in Indonesia is Law No. 32 of 2009 on Environmental
Management, which regulates the policy in Indonesia. Here it is explained that
the management of life is organized with the principle of state responsibility,
sustainability and benefits principles that aim to realize sustainable
development that is environmentally sound in the framework of full human
development. This law ensures that in the implementation of development, there
is an alignment of relations between humans and humans, humans with the
environment and other environmental components, and can meet the present and
maintain environmental sustainability in the future.�
The utilization of
resources is carried out wisely by considering ecological principles and
environmental insights so as not to cause natural degradation or even
environmental damage. In addition to regulating rights, the rules in the
Environmental Management Act also require everyone to maintain the
sustainability of the function of the environment, prevent and overcome
pollution and environmental destruction and provide correct and accurate
information about environmental management. Authority must be considered
coherence between stakeholders in environmental management, regulating the
relationship between government agencies, private, community, and other
components so that it can go hand in hand to create a good living environment.
To ensure the preservation of environmental functions, any business plan that
can have a major impact must analyze the environmental impact as a condition
for obtaining a business license.
From an ecological
perspective, all activity plans that are suspected to have a large and
important impact must have an analysis of AMDAL, but on a practical level, the
criteria for determining what types of activity plans can be categorized as
having a major impact and also important need to approach in the perspective of
AMDAL regulation (http:www.suaramerdeka.com/harian/0506/09/opi4.htm). The most
important factor in implementing this reclamation is the impact caused by the
implementation of the reclamation. So, it is important to monitor the
fulfillment of eligibility standards before planning coastal reclamation.
The eligibility standard
includes the feasibility of technical aspects, economic-financial aspects, and
AMDAL, while the results AMDAL should refer to applicable laws and
regulations.�� This AMDAL is an absolute
requirement for reclamation because the study of AMDAL will look at the extent
of the benefits and impacts of the project. Suppose the results of the AMDAL
study show the possibility of negative impacts from the implementation of
reclamation activities. In that case, it is appropriate that reclamation
planning cannot be done. But in practice, often these AMDAL studies become
numbered or even ignored by interested parties. Many occur, reclamation
planning submissions in an area have received approval and permission from the
local government the AMDAL study of the submission of the reclamation plan.
Often, the government since in checking E.I.A. as the main condition of filing
the reclamation plan eventually causes bad effects on the community, especially
when there is no location permit and management permit.
Against the problems that
occur in communities like this, then the State's response, in this case,� the regional Government be taken to solve it
is the aggrieved or victimized communities of beach reclamation activities can
file a lawsuit together class action. The city government also has the right to
sue the developer for damages caused. While administratively, legal steps taken
by the government reclamation activities that do not get AMDAL is to order the
cessation of reclamation activities until there is AMDAL against these
activities.
Feasibility studies include
feasibility from technical aspects, economic-financial aspects and E.I.A., the
results of AMDAL environmental feasibility studies must refer to applicable
laws and regulations. This AMDAL is an absolute requirement of the
implementation of reclamation or not because this study will be able to see the
extent of the benefits and impacts caused by the project.�
�� Concerning protection directed at the rights of indigenous peoples
to reclaimed land. Protection is also directed at people's right to coastal and
marine access and the right to enjoy natural resources, including people's
right to land resulting from reclamation processes. Even more so if the land is
pleasing to traditional people. Rizani Puspawidjaya describes the importance of land and kampong
yard for indigenous peoples with the words that indigenous peoples, land and
yard campong are economic objects and a comprehensive part of their lives. If
the land and camping yard are disturbed let alone alienated by the State or
third parties, that will be threatened not only the economic life of the
traditional community but also the entire existence of the indigenous people
itself.
�� Legal protection of people's rights, namely the right to natural
resources, land and the environment where the understanding of this community
includes both coastal communities themselves and the wider community can be
seen from the function of the law as guarantors of legal certainty, guarantors
of social justice and protectors.
The Government
personification of the State in carrying out its obligations is inseparable
from the principles of human rights, namely respect (to respect), protect (to
protect) and fulfill (to fulfill). In the implementation of human rights on the
rights of indigenous peoples, the obligation of the State in implementing when
the step is related to each other, guided by the concept of hernandi
Affandi's thought that said when the step is a
process from upstream to downstream. This means that the first will impact the
second, then the second rare will affect the third step (Wattimena & Hattu, 2021).
The State in this case the
local government possible for empowering the lives of its people, not least
indigenous peoples who base their lives on their land and natural resources.
The problem is the arrangement of customary territories in the concept defined
by nagara is only connoted as authority to utilize even though customary areas
better known as Ulayat rights include the authority
to regulate and control. The authority to regulate and control by the State is
arbitrarily or unintentionally eliminated. The State also provides a difficulty
for financiers to dredge and strengthen the rights of indigenous peoples so
that only environmental damage, disobedience and loss of livelihoods.
So the State in this case the local government be
careful to include rulers or companies to manage the natural resources and land
of indigenous peoples because this condition ranges with economic instability
that impacts national stability. The failure of local governments to carry out
their responsibilities or obligations in protecting human rights over the
rights of indigenous peoples will result in instates violations.�
CONCLUSION
The rights of the people in Sesar village,
related to the right to�� life,
healthy��� and clean environment must be
protected following the basic principles of human rights, namely protection,
respect and fulfillment. So that the Government's is needed�� in this case agencies that have a response
must be proactive in looking at the problem of unlicensed coastal reclamation,
if violated or issued, then it is a violation.
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