STRENGTHENING GLOBAL GOVERNANCE: INDONESIA’S COURT

AND THE CENTRAL KALIMANTAN FOREST FIRE CASE

Ary Aprianto

Ministry of Foreign Affairs of Indonesia, Indonesia, Email: aryaprianto@yahoo.com

Submitted: September 14, 2020; Reviewed: December 16, 2020; Accepted: January 3, 2021

Article Info Abstract

Keywords:

International Law, Domestic

Court, Global Governance,

International Law at

Domestic Level.

DOI:

10.25041/lajil.v3i1.2102

The success of global governance depends on the coherency

of efforts of its actors, notably states. States are expected to

meet their international obligation, including through their

domestic policies. As a member of the international

community, Indonesia has become a party to numerous

treaties and participated in various effort to address global

challenges. Yet reference to international law by Indonesia’s

domestic court has so far been justified only for the sake of

improving the quality of judgment or maintaining Indonesia’s

standing as a law-abiding state. Further, most Indonesia’s

legal scholars focus their attention on the position of

international law in the domestic legal hierarchy, and how

monism and dualism approaches influence the

implementation of international law at the national level. This

article focuses on how domestic court judgments have

impacts outside national borders. It employs a normative

research method, and uses the Central Kalimantan Forest Fire

case as the stepping-stone of discussion. It concludes that the

application of international law by Indonesia’s domestic court

supports the intention of delivering a high quality judgment

and strengthening the global governance.

A. Introduction
International law scholars have long been discussing the relationship between domestic

court and international law and international legal order. In the 60s, Richard Falk argued that

domestic court, when hearing an international law case, serves a dual function – as a national

institution and an agent of international legal order. He then voiced the probability of the court

facing a conflict between defending national interests and upholding international law.1

Scholars in the later years have suggested a more harmonious relation between domestic court

and international law. David Sloss argues that domestic court may employ international law to

This article is the author's personal opinion.
1 Richard A Falk, “THE ROLE OF DOMESTIC COURTS IN THE INTERNATIONAL LEGAL ORDER,”

Indiana Law Journal 39, no. 3 (1964): 429-445, 436.

Volume 3 Issue 1, 2021: pp. 1-18.
Faculty of Law, Universitas Lampung,
Bandar Lampung, Indonesia.

P-ISSN: 1978-5186 E-ISSN: 2723-2603
http://jurnal.fh.unila.ac.id/index.php/lajil

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

strengthen democracy, by advocating policies that conform to democratic values in various

international human rights treaties.2

Sloss’s suggestion is pertinent when it comes to globalization and global governance. The

United Nations (UN) in 1995 offered a simple understanding of “global governance” by

referring it to the work of multiple actors to manage their common affairs and different interests

towards the achievement of common goals.3 In recent years, the unprecedented complexity of

global challenges (transnational organized crime, human migration, climate change, or

communicable diseases, to name a few) has ‘forced’ the international community to further

strengthening synergy among relevant actors at every level of governance (global, regional,

national, and local). This has meant that the international community, through international law,

has become more intrusive to states’ domestic matters and the daily life of common people.

Referring to Surendra Bandhari, the world has been seeing the rise of global constitutionalism,

which is characterized by several critical elements such as the supremacy of international law

and harmonization of domestic rules.4

Towards this increasingly unavoidable reality, question arises as to the attitude of

Indonesia’s domestic court to international law. Do Indonesian judges feel the need to refer to

international law? What Indonesian judges have in mind when international law is cited or

referred to in the case on their hands? Or when the judges refer to international law, do they

think of the international implication of their judgment?

Indonesia’s domestic courts do refer to international law from time to time. The most

notable example being the Constitutional Court, which was established only in 2003. Several

scholars have written about the contribution of international law to the deliberations of the

Court, such as Kama Sukarno,5 Umbu Rauta and Ninon Melatyugra,6 or Gede Marhaendra Wija

Atmaja et all7. As these scholars have described, the Constitutional Court routinely utilizes

international law to help it interpret national law, enhance the quality of judgment, enrich

national law, and develop the capacity of Indonesia’s legal scholars. They advocate for further

utilization of international law henceforth. Yet those scholars stopped short of discussing the

international impact of the court’s application of international law.

To put the international impact of domestic court judgment into perspective, two

examples are presented here in brief. In 2006 the Constitutional Court declared the Law No.

27/2004 on Truth and Reconciliation Commission as unconstitutional, for it contravened the

principles of equality before the law and responsibility of state in promoting and protecting

2 David Sloss, “USING INTERNATIONAL LAW TO ENHANCE DEMOCRACY,” Virginia Journal of

International Law 47, no. 1 (2006): 1–61.
3 https://www.gdrc.org/u-gov/global-neighbourhood/ Accessed on May 6, 2020. See also, Klaus Dingwerth and

Philipp Pattberg, “GLOBAL GOVERNANCE AS A PERSPECTIVE ON WORLD POLITICS,” Global

Governance 12, no. 2 (2006): 187–89; Frank Biermann and Philipp Pattberg, “GLOBAL ENVIRONMENTAL

GOVERNANCE: TAKING STOCK, MOVING FORWARD,” Annual Review of Environment and Resources 33,

no. 1 (2008): 278–79, DOI: 10.1146/annurev.environ.33.050707.085733.
4 Surendra Bhandari, “GLOBAL CONSTITUTIONALISM AND THE CONSTITUTIONALIZATION OF

INTERNATIONAL RELATIONS: A REFLECTION OF ASIAN APPROACHES TO INTERNATIONAL

LAW,” Ritsumeikan Annual Review of International Studies 12 (2013): 16–17, DOI: 10.2139/ssrn.2402084.
5 Kama Sukarno, “PENERAPAN PERJANJIAN INTERNASIONAL DI PENGADILAN NASIONAL

INDONESIA: STUDI TERHADAP PUTUSAN-PUTUSAN MAHKAMAH KONSTITUSI,” Padjadjaran

Journal of Law 3, no. 3 (2016): 587–608, DOI: 10.22304/pjih.v3.n3.a8.
6 Umbu Rauta and Ninon Melatyugra, “HUKUM INTERNASIONAL SEBAGAI ALAT INTERPRETASI

DALAM PENGUJIAN UNDANG-UNDANG,” Jurnal Konstitusi 15, no. 1 (2018): 73–94, DOI:

10.31078/jk1514.
7 Gede Marhaendra Wija Atmaja et al., “SIKAP MAHKAMAH KONSTITUSI MENGENAI KEBERLAKUAN

PERJANJIAN INTERNASIONAL DALAM HUBUNGANNYA DENGAN HUKUM NASIONAL,” Jurnal

Magister Hukum Udayana (Udayana Master Law Journal) 7, no. 3 (2018): 329–42, DOI:

10.24843/JMHU.2018.v07.i03.p05.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

human rights, as well as right to life and right not to be subjected to torture, as enshrined in the

Constitution. To support their conclusion, the Constitutional judges stressed that international

law demands that gross violation of human rights must be settled by law and that the granting

of amnesty must be limited so as not to amount to impunity. The Court relied on the Basic

Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law, which is a 2005 UN General Assembly resolution. The judges also declared

that it is the responsibility of the state to prevent human rights violations, bring the perpetrator

to justice, and offer remedy to victims.8

In 2020, judges at the Jakarta Administrative Court ruled that the government’s policy of

limiting access of internet in the Papua and West Papua Provinces violated Law No. 19/2016

on the Amendment to Law No. 11/2008 on Information and Electronic Transaction. The Laws

stress that the government can only stop access to materials that are against the law. The judges

also found that the government contradicted the Government Regulation in lieu of Law No.

23/1959 on Emergency Situation. The judges refer to the International Covenant on Civil and

Political Rights / ICCPR (Indonesia is a party to), including Human Rights Committee’s

General Comment No. 34 on article 19 of ICCPR (on freedom of opinion and expression), to

assist them in formulating the judgment.9

The two judgments have two different perspectives. Domestically, the courts exercised

their authority in ensuring the supremacy of the Constitution and national law. Yet the Courts

also ruled, albeit indirectly, that government’s (executive body) policy must also adhere to

international law. Consequently, the Courts assisted in strengthening global human rights

governance, by making sure that Indonesia acts in accordance with it.

Not many scholarly articles have been dedicated to discussing the impact of Indonesia’s

domestic court judgments on global governance. Instead, it is generally accepted that Indonesia

must honor its treaty obligations under the principle of pacta sunt servanda. While it is true that

a state must abide by its international obligations, an awareness of what the consequences are

from observing international law must also be properly identified.

Further, most Indonesian scholars, including those that are referred to earlier, focus their

attention on the position of international law (treaty) within the hierarchy of national law,

leading them to the debate between monism and dualism.10 An essential reason behind this:

Indonesia’s Constitution is silent concerning the relationship between international law and

national law.

8 The Law on Truth and Reconciliation Commission, No. 006/PUU-IV/2006 (Constitutional Court December 4,

2006).
9 Papua Internet Restriction, No. 230/G/TF/2019/PTUN-JKT (Jakarta Administrative Court June 3, 2020).
10 See for example Damos Dumoli Agusman, Hukum Perjanjian Internasional: Kajian Teori Dan Praktik

Indonesia (Bandung: Refika Aditama, 2010); Mr Aminoto and Agustina Merdekawati, “PROSPEK

PENEMPATAN PERJANJIAN INTERNASIONAL YANG MENGIKAT INDONESIA DALAM HIERARKI

PERATURAN PERUNDANG-UNDANGAN INDONESIA,” Mimbar Hukum - Fakultas Hukum Universitas

Gadjah Mada 27, no. 1 (2015): 82–97, DOI: 10.22146/jmh.15912; Damos Dumoli Agusman, “THE COURTS

AND TREATIES: INDONESIA’S PERSPECTIVE,” Padjadjaran Journal of International Law 1, no. 1 (2017):

1-18; Damos Dumoli Agusman, “THE DYNAMIC DEVELOPMENT ON INDONESIA’S ATTITUDE

TOWARD INTERNATIONAL LAW,” Indonesian Journal of International Law 13, no. 1 (2015): 1–31, DOI:

10.17304/ijil.vol13.1.624; Ninon Melatyugra, “MENDORONG SIKAP LEBIH BERSAHABAT TERHADAP

HUKUM INTERNASIONAL: PENERAPAN HUKUM INTERNASIONAL OLEH PENGADILAN

INDONESIA,” Refleksi Hukum 1, no. 2 (2016): 45–60, DOI: 10.24246/jrh.2016.v1.i1.p45-60; Wisnu Aryo

Dewanto, “PENERAPAN PERJANJIAN INTERNASIONAL DI PENGADILAN NASIONAL: SEBUAH

KRITIK TERHADAP LAPORAN DELEGASI REPUBLIK INDONESIA KEPADA KOMITE HAK ASASI

MANUSIA PERSERIKATAN BANGSA-BANGSA TENTANG IMPLEMENTASI KOVENAN

INTERNASIONAL TENTANG HAK-HAK SIPIL DAN POLITIk,” Padjadjaran Jurnal Ilmu Hukum 1, no. 1

(2014): 57–77, DOI: 10.22304/pjih.v1n1.a4.

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

Against that backdrop, this article attempts to answer questions about the international

impact of Indonesia’s domestic court judgments and the role of court in strengthening global

governance. This article employs a normative research method, by utilizing the Central

Kalimantan Forest Fire case as a stepping-stone for the discussion.11 The considerations of the

judges will be examined to identify their relevance outside Indonesia’s domestic realm.

Research materials are collected through library research, and consist primarily of courts

decisions as well as relevant books and academic articles.12

The merit of the Central Kalimantan Forest Fire case is on human rights violations as

direct and indirect results of the frequent occurrence of forest fire. There are several reasons

why this case is chosen. First, the case relates to the protection of nature, which has been the

priority of global governance, considering the benefits of nature to our climate and well-being.

Second, forest fire is a formidable challenge for Indonesia for it occurs almost annually,

resulting in tremendous social, financial and political costs – domestically and across the

border. Lastly, Indonesia possesses large areas of tropical rainforests and has repeatedly

stressed its commitment to preserving nature.

The success of global governance depends on the willingness and ability of relevant

actors to put up efforts and collaborate. International law has become critical in laying the

foundation for global governance by creating international organizations that are dedicated to

foster global collaboration and/or by facilitating the international community to attain certain

common goals. UN Charter, for example, is the legal foundation for the UN organization and

contains norms to facilitate countries in attaining the purposes of the organization, such as on

peaceful settlement of dispute and limitation on the use of force.

This article explores the role of domestic court in strengthening global governance, the

international impacts of the forest fire case, and why the judgment is relevant to Indonesia’s

international responsibility. Noting the limited number of scholarly articles addressing the

subject, the article is expected to help develop the awareness of international law among

Indonesian legal practitioners, by highlighting the role of domestic courts in global governance.

This awareness is essential since international law also contributes to efforts in addressing

global challenges.

This article refers only to the treaty unless otherwise indicated. It does not discuss the

treaty's status within Indonesia's national law (the monism and dualism discourse). As scholars

have indicated, practices of Indonesia’s domestic courts have found no consistency for the

discourse.13 For example, the Constitutional Court has referred to treaties that Indonesia is not

a party to. In the case of the retroactivity of Indonesia’s counter-terrorism law, the Court

referred to ICCPR, the American Convention on Human Rights, and the Rome Statute of the

International Criminal Court. Indonesia was not a party to ICCPR when the judgment was

announced in 2003. Up until this article is drafted, Indonesia is not a party to the other two

instruments.

There has also been suggestion on the limitations of monism and dualism in analyzing

the practical relations between national and international law.14 Further, as will be discussed,

domestic court in practice can sidestep the monism – dualism debate by applying an indirect

11 Central Kalimantan Forest Fire Case, No. 3555 K/Pdt/2018 (Supreme Court of Indonesia, Cassation level July

16, 2019); Central Kalimantan Forest Fire Case, No. 118/Pdt.G/LH/2016/PN Plk (Palangkaraya District Court

March 22, 2017).
12 Soerjono Soekanto and Sri Mamudji, Penelitian Hukum Normatif: Suatu Tinjauan Singkat (Jakarta: Rajawali

Press, 2009), 13.
13 Agusman, Op.Cit., 13–15; Sukarno, Op.Cit., 591.
14 Ninon Melatyugra, Op.Cit., 48–49; Pierre-Hugues Verdier and Mila Versteeg, “INTERNATIONAL LAW IN

NATIONAL LEGAL SYSTEMS: AN EMPIRICAL INVESTIGATION,” The American Journal of International

Law 109, no. 3 (2015): 514-533, 516, DOI: 10.5305/amerjintelaw.109.3.0514.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

application of treaty. Nonetheless, the article also find that sufficient understanding on the status

of international law in the domestic sphere remains essential.

B. Discussion

1. The Case on Forest Fire in Central Kalimantan
The Central Kalimantan Forest Fire case run from 2016-2019. The case was brought by

several individuals residing in the Central Kalimantan province against Indonesia’s Central

Government, Central Kalimantan provincial government and Central Kalimantan provincial

house of representative.

This case is a citizen lawsuit. Under Indonesia’s law, citizen lawsuit facilitates citizen(s)

to bring a case against the government for act of commission or omission, which resulted in the

infringement of the citizens’ rights. In citizen lawsuit, compensation requested by the plaintiff

is in the form of government’s policies to prevent the occurrence of similar acts.15

The case was related to a large-scale forest fire and environmental destruction, which caused

detrimental effects in the economic, health, and social aspects of the plaintiffs’ life.16 The

plaintiffs recorded that forest fire in Central Kalimantan occurred intermittently from 1997 to

2015, which the plaintiffs argued was the result of the government’s negligence. Quoting data

from the National Agency for Disaster Management, the plaintiffs presented that in 2015 alone

more than 196.000 hectares of peatland and 133.000 hectares of non-peat land were burning.

The plaintiffs recorded that the fire has caused widespread haze in several districts of the

province, the spread of diseases, school closure, and interruption to public activities. The

plaintiffs claimed the infringement of their human rights under Indonesia’s national law,

notably the right to a healthy environment.

In their arguments, the plaintiffs cited the Constitution, the Law No. 39/1999 on Human

Rights, and the Law No. 32/2009 on Protection and Management of Environment. The plaintiffs

also referred to the UN Guiding Principles on Business and Human Rights (a UN Human Rights

Council resolution), and the International Covenant on Economic, Social, and Cultural Rights

(ICESCR), which Indonesia is a party to.

The District Court concurred with the plaintiffs’ arguments. It declared that the

governments had acted against the law by failing to exercise their responsibilities to prevent

fire and mitigate its impacts. The court also considered the Rio Declaration on Environment

and Development in the formulation of their judgment.

The court ordered the central and provincial governments (following their respective

authority) to make necessary policies, ranging from creating implementing regulations to the

law on the environment, creating a road map on the prevention and mitigation of forest fire,

environmental law enforcement, reassessing land and forest permits, to providing public health

facilities and creating a comprehensive system at a local level to monitor and prevent forest

fire.

The government brought the judgment for review to the Provincial Court and Supreme

Court (cassation level). Both courts concurred with the District Court’s judgment.17 The

government accepted the judgment. Hence it is final.

15 Supreme Court of Indonesia Research, Education, Training and Education Agency, “Class Action and Citizen

Lawsuit: Research Report” (Supreme Court of Indonesia, 2009), 11, 49.
16 Central Kalimantan Forest Fire Case, Palangkaraya District Court March 22, 2017.
17 Central Kalimantan Forest Fire Case, Supreme Court of Indonesia, Cassation level July 16, 2019.

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

2. Domestic Courts As An Actor of Global Governance
In recent years, globalization has grown at an unprecedented rate. As Thomas Friedman

puts it in one of his books, our world has become a single global network.18 The almost free

movement of goods, capital, service and ideas have enabled states to accumulate resources to

further their development. People has also gained greater opportunity for self-empowerment.

Yet globalization also brings tremendous challenges, such as those that have been named

earlier. The gravity of these challenges has put ‘global governance’ at the forefront of the world

diplomacy.

The international community has regarded global governance as a tool to address

common global problems. In this sense, global governance is not only an observable global

phenomenon, which is characterized by the proliferation of actors; multilevel governance

system that is inseparably linked (global, regional, national, local); relation among actors that

is not always based on power, norms, or bargaining; and the emergence of new source of

authority beyond states, as was described by Klaus Dingwerth and Philipp Pattberg. They also

argued that global governance is a political program, to assist the international society in

responding to global problems.19 A compelling example of global governance is the efforts to

address climate change, as decades of competing national and business interests, lack of

affordable clean technology and the different perspective on the risks generated by climate

change have presented formidable challenges for the international community.

Simply put, global governance represents the impossibility of international actors (states,

inter-government organizations, or civil society organizations) to work separately in solving

problems that are global in nature. As was highlighted by the UN in 2014, global governance

must encompass "…the totality of institutions, policies, norms, procedures, and initiatives

through which States and their citizens try to bring more predictability, stability, and order to

their responses to transnational challenges". These transnational challenges are to increase the

supply of global public goods (for example peace and security) and reduce the flow of global

public "bad" (greenhouse gas emission, human trafficking, biodiversity losses, etc.).20

Elements of global governance (policies, treaties, or actors) interact with each other,

creating networks of collaboration, dependence, mutual support, and even competition

(fragmented).21 Despite these various characteristics, it is essential to recall that all those

elements must move in the same and right direction if they are to contribute to solving global

problems. One way to ensure it is to further the utilization of international law, notably treaties.

On a practical aspect, international law has become more critical in facilitating the

international community to attain common goals. On its substantive aspect, international law,

which is created and shaped by international actors, is a product of global governance. A good

example is the multilateral trade system, which is administered particularly by the World Trade

Organization (WTO). Created by states in 1995 as a successor to the 1948 General Agreement

on Tariffs and Trade, WTO administers various agreements that are negotiated by states to

further international trade. Those rules are binding and enforceable.

Other than treaty, states have also negotiated a great number of ‘soft law’, such as UN

General Assembly (UNGA) resolution or declaration. Several reasons can be attached to this

development, such as the presence of new issues that are previously not seen as critical by the

international community, to serve as a compromise if states fail to reach a binding agreement,

18 Thomas Friedman, The World is Flat (New York: Picador, 2007).
19 Dingwerth and Pattberg, Op.Cit., 189–194.
20 Vereinte Nationen, ed., Global Governance and Global Rules for Development in the Post-2015 Era: Policy

Note, (New York, NY: United Nations, 2014), vi.
21 Rakhyun E Kim, “IS GLOBAL GOVERNANCE FRAGMENTED, POLYCENTRIC, OR COMPLEX? THE

STATE OF THE ART OF THE NETWORK APPROACH,” International Studies Review 22, no. 4 (2019): 903-

931, 934–936, DOI: 10.1093/isr/viz052.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

to facilitate the participation of non-state actors, to reduce political and legal cost, or simply

because states believe that there exist no urgency to create a binding instrument for certain

issues.22 Even though they lack binding force, soft law carries legal and political significance

to influence states’ behavior. It may also lay the foundation for the gradual formation of

customary rules or treaty provisions.

To give a perspective, there are around 560 multilateral treaties deposited with the UN

Secretary-General, covering plenty of issues such as human rights, disarmament, penal matters,

and the environment.23 As a comparison, the UNGA alone adopted more than 300 resolutions

in its 2018-2019 session. The 2030 Agenda for Sustainable Development, containing goals and

standard of conduct for states in their domestic development, is a UNGA resolution. Even the

Paris Agreement on climate change is considered by some scholars as not a treaty, due to the

absence of binding commitment and enforcement mechanism.24

The proliferation of soft law is a good example of what scholars believe is the flexible and

dynamic nature of global governance. Yet in certain areas of critical importance, people remain

convinced that adherence to global governance rules and institutions would be best achieved

through binding instrument.

Ensuring compliance of state with its international responsibilities remains a delicate

issue that sits at the intersection between international law and international relations. It is

generally understood that state becomes a party to a treaty and acts in accordance with it if the

treaty suits its national interests. There is no supranational organization that can force a state to

join a treaty, and monitor and enforce compliance, except with the state’s consent. In the

absence of state consent, various enforcement mechanisms have been recognized such as

countermeasures and sanction,25 and by bringing the state before its own court.

Sloss believes that the domestic court may help promote democracy by employing

international law. This is so because international law incorporates norms and values that have

been accepted by the community of nations, such as human rights and humanitarian law.

Accordingly, the domestic court may act as an agent to uphold international law and global

governance.

Eyal Benvenisti and George Brown offered a slightly different view. They highlighted the

presence of certain interest groups that put strong pressure on the domestic legal system by

taking advantage of the greater movement of capital, as facilitated by globalization. In this

situation, they argued that domestic court can actually block government policies that are

incompatible with national and international law.26

The opinion of the above scholars is a testament that the role of state in global governance

remains critical, despite the presence of so many non-state actors. This is due among others to

state’s authority over people, land, and resources. Joana Setzer and Michal Nachmany argued

that in polycentric global governance, state is the central point in the mitigation and adaptation

process, promoting societal changes, and creating better national regulation and policies in

22 Antonio Cassese, International Law, First Edition. (Oxford: Oxford University Press, 2001), 161; Kenneth W.

Abbott and Duncan Snidal, “HARD AND SOFT LAW IN INTERNATIONAL GOVERNANCE,” International

Organization 54, no. 3 (2000): 421-456, 434, DOI: 10.1162/002081800551280.
23 https://treaties.un.org/, Accessed on May 20, 2020.
24 Lavanya Rajamani, “THE 2015 PARIS AGREEMENT: INTERPLAY BETWEEN HARD, SOFT AND NON-

OBLIGATIONS,” Journal of Environmental Law 28, no. 2 (2016): 337-358, 337, DOI: 10.1093/jel/eqw015;

Anne-Marie Slaughter, “THE PARIS APPROACH TO GLOBAL GOVERNANCE,” Project Syndicate,

December 28, 2015, https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-

governance-by-anne-marie-slaughter-2015-12.
25 Antonio Cassese, Op.Cit., 234.
26 E. Benvenisti and G. W. Downs, “NATIONAL COURTS, DOMESTIC DEMOCRACY, AND THE

EVOLUTION OF INTERNATIONAL LAW,” European Journal of International Law 20, no. 1 (2009): 59-72,

62 and 64, DOI: 10.1093/ejil/chp004.

https://www.researchgate.net/deref/http%3A%2F%2Fdx.doi.org%2F10.1162%2F002081800551280
https://doi.org/10.1093/jel/eqw015

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

climate change issues.27 Judicial institutions can enforce the law as well as challenge the state

and large emitters. Judicial institutions thereupon play a strategic role in promoting wider policy

change, to be consistent with global goals.28

Following this logic, the willingness of Indonesian judges to refer to international law is

important. It is even more essential if the judges cite treaties that have become part of national

law in the reasoning of their decisions. Quoting Justice I Dewa Gede Palguna, in his dissenting

opinion in Truth and Reconciliation Commission Case before the Constitutional Court,

international human rights instruments that have become part of national law imply their

coherence with the national Constitution. Thus, applying those instruments at the domestic level

is inherently applying Indonesia’s national law. His argument can be applied in the forest fire

case, particularly on applying relevant treaties to which Indonesia has become a party.

Sloss and van Alstine argue that domestic court may apply international law either through

a silent application (applying domestic rules that derived from international law without

mentioning international sources), through an indirect application (where courts apply

international law to help interpret domestic rules), or direct application (the courts apply

international law directly as a rule for decision).29 André Nollkaemper then explains that

domestic courts choose to employ an indirect application of international law if treaty provision

cannot be invoked directly because it does not grant individual rights, or it would conflict with

national law. In the Netherlands, which is traditionally a monist country, an indirect application

allows the court to make a conciliatory interpretation and so prevent it from deviating from the

state’s international obligations.30 In a dualist state, Canada, for example, an unimplemented

treaty may have indirect influence where the court interprets national law in conformity with

international law and the state’s treaty obligation.31

Furthermore, certain treaties have stressed the role of domestic court in ensuring state party

compliance. The Human Rights Committee, a treaty body under ICCPR, in its General

Comment No. 31 paragraph 4, asserts that obligations on ICCPR bind state party as a whole.

Therefore, all branches of the state government (executive, judicial and legislative), at all levels

(national and local) are in the position to engage the responsibility of the state party. In

paragraph 15, the Committee rules that, in addition to directly applying it, the Court may also

apply national law within the interpretation of the Covenant.32 The views of the scholars above

and “expectation” from certain treaties offer a more practical application of treaty in the

domestic sector, away from the monism – dualism discourse.

Despite this ‘green light’ for its application, whether domestic court will refer to treaty

remains the policy of choice. As was pointed out by Sharon Weill, the Court may find that

international law is not applicable, either because it conflicts with domestic norm or because

domestic norm has incorporated international law.33 We may also find in other scenarios that

27 Joana Setzer and Michal Nachmany, “NATIONAL GOVERNANCE: THE STATE’S ROLE IN STEERING

POLYCENTRIC ACTION,” Governing Climate Change: Polycentricity in Action?, 1st ed. (Cambridge:

Cambridge University Press, n.d.), 48–49, 51–52, DOI: 10.1017/9781108284646.004.
28 Ibid., 56–57.
29 David Sloss and Michael Van Alstine, “International Law in Domestic Courts,” Book Chapter Santa Clara Law

Digital Commons, September 2015, 43; David Sloss, Treaty Enforcement in Domestic Courts: A Comparative

Analysis, in The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, 1st ed. (New York:

Cambridge University Press, n.d.), 7, 13.
30 André Nollkaemper, “The Netherlands,” in The Role of Domestic Courts in Treaty Enforcement: A Comparative

Study, 1st ed. (New York: Cambridge University Press, 2009), 348–50.
31 Gib van Ert, “Canada,” in The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, 1st ed.

(New York: Cambridge University Press, 2009), 172, 188.
32https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeI

D=11, Accessed on March 29, 2004.
33 Sharon Weill, "The Role of National Courts in Applying International Humanitarian Law: From Apology to

Judicial Activism", Ph.D. diss., The University of Geneva, (2012), 59.

https://www.researchgate.net/deref/http%3A%2F%2Fdx.doi.org%2F10.1017%2F9781108284646.004

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

the Court believes that domestic law is sufficient to deal with the case, the Court does not have

sufficient knowledge on international law, or the Court even considers that international law is

not applicable at all.

The above possibilities can be explained by what several Indonesian scholars have

found in their research. Gede Marhaendra Wija Atmaja et all and Kama Soekarno revealed that

Indonesian judges utilized international law to help deepen their insight of national law, support

their legal thoughts or take benefit of the moral authority carries by international law.34 Ninon

Melatyugra also spoke of a similar intention. These perspectives imply that judges will not find

it necessary to refer to international law if they believe that national law and their understanding

of it is already solid.

Similarly, domestic actors who bring a case to the court will not bother to refer to

Indonesia’s international responsibilities if they are confident that national law is sufficient to

advance the case. As a reference, when deliberating the Law on Truth and Reconciliation

Commission case, the court stressed that the review of the law must be based first on Pancasila

(the state's idea) and the Constitution, which has incorporated various international human

rights principles. From then on, the court will look at various international human rights

materials.35 This pronouncement signaled the court's confidence in the conformity of

Indonesia’s Constitution with international law,36 and paved the way for a silent application, as

pointed out by Sloss and van Alstine.

Despite the various thought and convictions, it must be realized that, upon the condition

that they operate independently, the court retains the authority to oversee the works of

government (executive branch) and ensure that they remain in line with national law and

international law. As demonstrated in the Law on Truth and Reconciliation Commission case,

the court's pronouncement is in line with the Constitution and conformity with international

human rights law. The court ruled that the law in question violates the Constitution and

international law. This is because the law regulated that remedy could only be delivered

following the testimony of perpetrators, their regret, and amnesty from the President,

Technically, the Court was guided by the Basic Principles and Guidelines on the Right to a

Remedy and Reparation for Victims of Gross Violations of International Human Rights Law

and Serious Violations of International Humanitarian Law. This document contains several

relevant principles, such as to promptly, effectively, and partially conduct an investigation on

the alleged violation of human rights, and to ensure the right of victims to remedy and access

to justice. The Court argued that this document incorporates universal customs and practices,

intended to promote justice.37 From the larger perspective, this Court pronouncement is in line

with the global spirit to enhance human rights promotion and protection, and to assert the role

of state in protecting the rights of its citizens.

A similar sentiment applies to the Papua Internet Case. The Court highlighted that the

internet is a medium for freedom of expression and for exercising other rights, such as to seek

information, to education, to gain benefits from science, to employment, and so on. As those

34 Atmaja et al., “SIKAP MAHKAMAH KONSTITUSI MENGENAI KEBERLAKUAN PERJANJIAN

INTERNASIONAL DALAM HUBUNGANNYA DENGAN HUKUM NASIONAL,” Jurnal Magister Hukum

Udayana 7, no. 3 (2018): 329-342, 340, DOI: 10.24843/JMHU.2018.v07.i03.p05; Sukarno, “Penerapan Perjanjian

Internasional di Pengadilan Nasional Indonesia,” Padjajaran Jurnal Ilmu Hukum 3, no. 3 (2016): 587-608, 595,

DOI: 10.22304/pjih.v3.n3.a8.
35 Truth and Reconciliation Commission Case, No. 006/PUU-IV/2006 (Constitutional Court of Indonesia

December 4, 2006), 120.
36 Bagir Manan and Susi Dwi Harijanti, “KONSTITUSI DAN HAK ASASI MANUSIA,” Padjadjaran Journal of

Law 3, no. 3 (2016): 448–67, DOI: 10.22304/pjih.v3.n3.a1; Saldi Isra, “PERAN MAHKAMAH KONSTITUSI

DALAM PENGUATAN HAK ASASI MANUSIA DI INDONESIA,” Jurnal Konstitusi 11, no. 3 (2016): 409–

27, DOI: 10.31078/jk%x.
37 Truth and Reconciliation Commission Case at 122.

https://doi.org/10.24843/JMHU.2018.v07.i03.p05

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

rights are protected in both international and national law, internet restriction must be done

proportionally only to harmful materials.

3. The implications of the Central Kalimantan Forest Fire Case to Global Governance
The forest fire case is far from being relevant only for Indonesia’s national human rights

development. To begin with, the impacts of the fire were also felt in Indonesia’s neighboring

countries, thus calling into question Indonesia’s compliance with the ASEAN Agreement on

Transboundary Haze Pollution.

The case also has global implications. Deforestation, due to forest fire or illegal logging,

tremendously impacts every life on earth. Researchers have suggested that deforestation

reduces rainfall. Trees absorb water from land and rainfall, and release water vapor into the

atmosphere. Water vapor accumulates, turn into clouds, and then create rainfall. Researches

have also suggested that air that passes over extensive vegetation produces twice as much rain

as air that passes over land with less vegetation. Forests also influence local and global

temperature. Deforestation releases carbon dioxide that makes the earth dryer and warmer.38

During the court hearing, a government witness confirmed that fire in peatland contributes to

global warming.39

In 2013, The Intergovernmental Panel on Climate Change (IPCC) issued a report on Climate

Change 2013, asserting, among others, its confidence that human activity has been the dominant

cause of climate change. As has been presented elsewhere, climate change impacts are

devastating and irreversible, such as rising sea levels, the disappearance of low-lying coastal

areas and small islands, habitat loss for several organisms, and the spread of certain diseases.40

Climate change is also responsible for the increasingly frequent and violent natural disasters.

Those effects have led several scientists to believe that climate change poses an existential

threat to human civilization.41

Precisely upon those reasons, ecological destruction and its impact on global warming and

climate change have long been considered as deserving the effort of the international

community. Accordingly, the forest fire case and its judgments contribute to assessing

Indonesia’s actions - whether they strengthen or weaken global governance.

Indonesia is a party to various international instruments on the Environment and climate

change, most notably UN Framework Convention on Climate Change / UNFCCC (ratification

as of August 23, 1994), Convention on Biological Diversity / CBD (ratification as of August

23, 1994), Kyoto Protocol (ratification as on December 3, 2004) and Paris Agreement

(ratification as on October 31, 2016). All those conventions obligate state parties to protect the

environment environment and biological diversity and make substantial efforts to reduce

greenhouse gas that are harmful to the climate system. In other words, the forest fire that had

been occurring for quite a long time (from 1997 until the time the case is brought to the court)

was actually against Indonesia’s international responsibilities.

Accordingly, despite the judgment that was solely based on national law, that is on the

failure to prevent and respond to forest destruction as mandated by Law No. 18/2013 on

38 Fred Pearce, “Rivers in the Sky: How Deforestation Is Affecting Global Water Cycles,” Yale E360, accessed

August 15, 2020, https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change;

David Ellison and Cindy E. Morris, “TREES, FORESTS AND WATER: COOL INSIGHTS FOR A HOT

WORLD | ELSEVIER ENHANCED READER,” Global Environmental Change 43 (2017): 51–61, DOI:

10.1016/j.gloenvcha.2017.01.002.
39 Central Kalimantan Forest Fire Case, Palangkaraya District Court March 22, 2017, at 147.
40 Myles R. Allen, “Special Report: Global Warming of 1.5 Degree C - Summary for Policy Makers,” The

Intergovernmental Panel on Climate Change, accessed July 7, 2020, https://www.ipcc.ch/sr15/chapter/spm/.
41 http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency. Accessed on

August 29, 2019; David Spratt and Ian Dunlop, “Existential Climate-Related Security Risk: A Scenario Approach”

(Melbourne, 2019).

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

Preventing and Combatting Forest Destruction, the court was correcting the implementation of

Indonesia’s international responsibility. In this context, the judges’ reference to the Rio

Declaration on Environment and Development made sense. The judges believed that several

principles in the Declaration were relevant to the case, such as sovereignty and responsibility

of state, the equitable needs of current and future generations, and the integrality of environment

protection in the development process. The judges specifically highlighted the principle of

intergenerational sustainability. They argued that nature conservation is important to ensure

that the future generation will be able to enjoy natural resources in good quality and quantity.

The judges also suggested that this principle should become the foundation for the development

of national and international environmental law.42 The judgment did not only question

Indonesia’s compliance with international law but also question our responsibility in the

attainment of global public goods (in this case, a well-protected environment and ecosystem)

and reduce the flow of global public “bad” (in this case, environmental destruction and

greenhouse gas emission)

The intention to achieve or ensure conformity of action with Indonesia’s international

responsibility is a necessary element in strengthening global environmental governance. The

court, individual plaintiffs, and other actors such as the National Human Rights Commission

(whose view on the impacts of forest fire to people’s human rights was included on the

plaintiffs’ list of evidence) have all acted within their responsibility, either separately or in

collaboration with others. As Martin Janicke argued, to achieve common goals, each actor must

understand its responsibilities and is willing to act within its own opportunities and challenges.

He calls it multi-level climate governance, which draws its strength from the presence of

multiple actors (government, business, NGOs, individuals) at various levels of governance –

global, regional, national, provincial, city, local community, and individuals.43

The case also fits into Elinor Ostrom’s conviction on a polycentric approach to global

governance. She stressed among others that governance should not only come from the

international level. Instead, several initiatives may well emerge from the bottom level, such as

from non-state actors.44 Both polycentric and multi-level climate governance approaches

reaffirm the underlying importance of harmonization of action, interconnectedness, and mutual

engagement among different actors at different governance levels.

Supporting their argument on the human rights violations, the plaintiffs pointed out on

Indonesia’s international responsibilities under the ICESCR and the UN Guiding Principles on

Business and Human Rights. They also stressed that business entities used fire in clearing the

land, the result of which was the widespread of forest and land fire.

Additionally, it must be understood that globalization can be exploited by groups willing to

advance their interests at the expense of others. Benvenisti argued that in this regard, judges

look upon international law to strengthen and complement domestic environmental regulation.

He sees the judges as more of a national actor rather than an international agent. Their primary

motivation is more to uphold national interests, rather than to support global governance.45 His

argument echoes Indonesia's challenges, where the government has been accused of prioritizing

42 Central Kalimantan Forest Fire Case, Palangkaraya District Court March 22, 2017, at 187.
43 Martin Janicke, "THE MULTI-LEVEL SYSTEM OF GLOBAL CLIMATE GOVERNANCE – THE MODEL

AND ITS CURRENT STATE," Environmental Policy and Governance 27, no. 2 (2017): 108–21, DOI:

10.1002/eet.1747.
44 Elinor Ostrom, “A Polycentric Approach for Coping with Climate Change,” World Bank Policy Research

Working Paper 5095, (2009); Andrew Jordan and Dave Huitema, Governing Climate Change Polycentrically:

Setting the Scene, Governing Climate Change: Polycentricity in Action?, 1st ed. (Cambridge: Cambridge

University Press, 2018), 3-4, DOI:10.1017/9781108284646.002.
45 Eyal Benvenisti, “RECLAIMING DEMOCRACY: THE STRATEGIC USES OF FOREIGN AND

INTERNATIONAL LAW BY NATIONAL COURTS,” American Journal of International Law 102, no. 2 (2008):

241-274, DOI: 10.2307/30034538.

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

business and investment at the expense of sustainable development.46 To put this conviction

into context, Forest Watch Indonesia once reported that more than 20 million hectares of natural

forests in Indonesia were lost between 2000-2017. The main reasons behind it were investment

and forest concession. The organization also found that the loss of forests correlated with the

increase in weather temperature in a particular area.47

The plaintiffs argued that protecting human rights, in this case, the right to a healthy

environment and providing a remedy for breach, is in conformity with Indonesia’s international

responsibilities. Both ICCPR and the UN Guiding Principles were utilized to defend their

argument that violation by business entities triggered the responsibilities of the government to

protect people’s rights and to provide remedy. By accepting the plaintiffs’ argument, the Court

has essentially declared the failure of the government in performing its environment and human

rights responsibilities.

As Setzer and Nachmany have observed, the judicial activity of the court serves as a

key component of state’s role in the polycentric global governance. Here the court functions as

an enforcer of the law, a challenger to state’s inadequate action, and a promoter of national

policy reform.48 Along this argument, the forest fire judgment is essential in encouraging

Indonesia to act and create policy in conformity with its international climate obligations. This

can be done by among others complying with the Court’s decision by issuing necessary

implementing regulations to the Law on the Environment Protection, such as on the criteria for

environmental degradation, environmental risk assessment, and economic instrument for

environment management. The government is also obligated to ensure effective law

enforcement against perpetrators of forest fire and to create a roadmap for preventing and

combating forest fire.

A quite similar argument to that of Setzer and Nachmany can be referred to Anne-Marie

Slaughter and William Burke-White. They highlighted that international law can help national

institutions in enhancing the capacity and effectiveness of domestic institutions; supporting

domestic groups to force state’s compliance with international obligations; and compelling

domestic action to respond to global threats.49

When this article was drafted, no information can be found on the realization of the

governments’ duties as decided by the Court. Nonetheless, it is expected that the government

can act promptly to implement the Court’s orders. If the Court orders are well executed,

Indonesia may have better regulations to prevent forest fire and land destruction, which will

help it to prevent further greenhouse gas emission emanating from its territory.

Finally, the cases as well as the Courts’ actions towards them may well represent a way

for Indonesia to internalize treaty norms and strengthen its treaties’ compliance. A good

reference to this idea is the transnational legal process, as Harold Koh suggested to explain

states’ compliance with treaties. He argued that state’s interaction with a treaty system and other

international actors encourage it to internalize the treaty norms into the domestic system. This

whole process helps develop and strengthen the sense of compliance with international law.

This internalization goes through several mutually-reinforcing processes, including through

judicial internalization, where the court hears a dispute and invokes international law norms

46 Wahana Lingkungan Hidup Indonesia, Tinjauan Lingkungan Hidup 2020: Menabur Investasi, Menuai Krisis

Multidimensi, Annual Report (Jakarta: Wahana Lingkungan Hidup Indonesia, 2020).
47 Forest Watch Indonesia, Angka Deforestasi Sebagai ‘Alarm’ Memburuknya Hutan Indonesia (Jakarta: Forest

Watch Indonesia, 2019), http://fwi.or.id/wp-content/uploads/2019/10/FS_Deforestasi_FWI_small.pdf.
48 Setzer and Nachmany, Op.Cit., 56–57.
49 Anne-Marie Slaughter and William Burke-White, “THE FUTURE OF INTERNATIONAL LAW IS

DOMESTIC (OR, THE EUROPEAN WAY OF LAW),” Harvard International Law Journal 47, no. 2 (2006):

327-352, 330&333; See also David Sloss, Loc.Cit.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

into its judgment.50 As was discussed earlier, conformity between a state national policy and its

international responsibilities does strengthen global governance, thereby positioning the court

as one agent of internalization.

4. The Need to Increase Awareness of International Law
Having described the domestic court's role in strengthening global governance and the

international implications of the forest fire case, there remain several notes for further

reflection. First, the plaintiffs and judges did not directly rely on international law in their

argument. Relevant treaties and soft law were instead utilized to support their argument.

ICESCR and the UN Guiding Principles were used to support the plaintiffs’ argument on the

government's responsibilities to protect citizens’ human rights and provide a remedy in the

event of human rights violations. The judges quoted the Rio Declaration to support their

thinking on the government’s duty to observe the principle of sustainable development (indirect

application of international law). Thereby the judgment was formally based on national law,

but the national law was interpreted accordingly so that the outcome was consistent with

international law.51

This indirect application was perhaps because the plaintiffs and judges found that national

law was already sufficient. The amended national Constitution has absorbed plenty of human

rights principles, including the right to a decent and healthy environment as enshrined in the

Universal Declaration of Human Rights. Accordingly, referring to the Constitution may

indicate a silent application (or a dualist approach in the monism and dualism discourse). The

same is true for the Law on Human Rights and Law on the Environment.

As a reference, based on ICESCR, Indonesia must recognize the right of everyone to

enjoy the highest attainable standard of physical and mental health. To realize that right, a state

party shall take necessary steps, as detailed in article 12, including improving environmental

hygiene, and preventing and controlling diseases. This article should be read together with

article 7 paragraph 2 of Law No. 39/1999 on Human Rights, which states that international

human rights instruments that have been accepted by Indonesia become the responsibility of

the government.

ICESCR also provides other relevant bases to support the plaintiffs’ argument. In

General Comment No. 24, the Committee on Economic, Social and Cultural Rights (a treaty

body under ICESCR) reaffirms state party responsibilities in business activities by privately-

owned or state-owned companies. Some of the responsibilities are in ensuring respect,

promotion, and fulfillment of human rights during business activity, including in ensuring

access to justice and remedy if violations occur.52 Accordingly, it is actually sufficient to

directly use ICESCR on the case.

Second, even if they prefer to apply international law indirectly, other instruments

would have better represented the thoughts of the judges. The Rio Declaration was more than

20 years old when the judges deliberated the case. The judges could have referred to the 2030

Agenda for Sustainable Development, for example, which was adopted in 2015. It contains

among others the commitment to protect our nature from degradation for the benefits of both

present and future generations. Goal 15 on land, forest, and biodiversity can also be highlighted

in the case.

50 Harold Hongju Koh, “THE 1994 ROSCOE POUND LECTURE: TRANSNATIONAL LEGAL PROCESS,”

Nebraska Law Review 75, no. 1 (1996): 199–205; Harold Koh, “THE 1998 FRANKEL LECTURE: BRINGING

INTERNATIONAL LAW HOME,” Houston Law Review 35 (1998): 626–627, 643.
51 Nollkaemper, Op.Cit., 348.
52https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeI

D=11, Accessed on August 10, 2017.

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

Another possibility is that Indonesia’s compliance with treaties or possible impacts of

Indonesia’s actions to global governance have not become parts of the judges’ consideration.

As was earlier discussed, judges believe that international law materials, notably those that bind

Indonesia, have certain moral values that cannot be easily dismissed. Non-compliance, the

judges conclude, will hurt Indonesia’s international standing.53 In short, the judges focus their

attention on delivering justice and preserving Indonesia’s credibility, not really on

strengthening global governance. That attitude is not regrettable. As they are sworn to uphold

the Constitution, it is reasonable if judges act more as a national actor rather than an actor of

international order, as Benvenisti observed.

Third, a more widespread consideration of international law, or even a direct application

of treaties that bind Indonesia, is preferable to strengthen global governance and reasserting

Indonesia’s international obligations. In the Papua Internet Restriction case, the court was very

close to directly apply ICCPR and its General Comment No. 34, alongside the application of

Law No. 19/2016 on the Amendment to the Law No. 11/2008 on Information and Electronic

Transaction. The Court thought that the restriction amounted to the derogation of rights, as

stipulated in article 4 paragraph 1 of ICCPR, which can only take place in public emergency.

Accordingly, the Court turned on to the Government Regulation in lieu of Law No. 23/1959 on

Emergency Situation and discovered that the restriction was not based on the official

announcement of an emergency situation, such as what is required by the Regulation.

Yet to realize that suggestion, a sufficient understanding of the status of international

law in Indonesia must be achieved. While Indonesia’s domestic court has shown that

international law is a reliable source of law (at least, materially), some believe otherwise.

Aminoto and Agustina Merdekawati revealed that there has been a tendency in Indonesia to see

the law as merely those that are described in Law No. 12/2011 on the Drafting of Regulations.

As stated, the Regulations that apply in Indonesia consist of (in descending order of rank) the

Constitution, Decree of the People Consultative Assembly, Law, Government Regulation,

Presidential Regulation, Provincial Regulation, and Municipal Regulation. The consequence is

that international law is not considered as a proper source of law.54 This attitude is certainly a

hindrance for the application of international in the domestic court, even for an indirect one.

Further, even if a treaty has been ratified or acceded to by Indonesia, there remains

confusion as to whether the treaty is ready for implementation. This confusion emerged from

the lack of clarity of whether the treaty is considered as self-executing or not.55

C. Conclusion
This article has shown that the implications of forest fire case were not only within

Indonesia’s national boundaries. Either the case was only about violations of human rights.

Forest and land fire that have occurred intermittently were actually in contravention of various

treaties on haze, environment, and climate, to which Indonesia is a party, as well as of

Indonesia’s commitment to sustainability. Hence the case and its judgment have international

implications as well. Despite the judgment that was based on national law, the forest fire case

exposed the court’s indirect application of international law. As a consequence, the court’s

judgment supports the realization of Indonesia’s international responsibility on the global

climate governance.

53 Agusman, Op.Cit., 22; Sukarno, Op.Cit., 595, 597.
54 Aminoto and Merdekawati, “PROSPEK PENEMPATAN PERJANJIAN INTERNASIONAL YANG

MENGIKAT INDONESIA DALAM HIERARKI PERATURAN PERUNDANG-UNDANGAN INDONESIA,”

Mimbar Hukum 27, no. 1 (2015): 82-97, 84, DOI: 10.22146/jmh.15912.
55 Ibid., 89; Damos Dumoli Agusman, “SELF EXECUTING AND NON SELF EXECUTING TREATIES WHAT

DOES IT MEAN?,” Indonesian Journal of International Law 11, no. 3 (2014): 320-344, 344, DOI:

10.17304/ijil.vol11.3.501.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

It has also been shown that the domestic court’s responsibilities are not only in upholding

‘the primacy’ of national law and ensuring the highest quality of justice in accordance with the

Constitution. Domestic court is also burdened with the task of ensuring respect to international

law or, at the very least, treaties that bind the state. This task is not only a matter of state

reputation as a law-abiding state but also in attaining what the international community has

aspired to. It should also be noted that domestic court is in the position to force other branches

of government to make policy change. This role is highly relevant to the success of global

governance, and should become an encouragement for Indonesian lawyers and judges to

acquire adequate knowledge of relevant international law and the specific governance it serves.

References

A. Journal
Abbott, Kenneth W., Snidal, Duncan. “HARD AND SOFT LAW IN INTERNATIONAL

GOVERNANCE,” International Organization 54, no. 3, 2000: 421-456, DOI:

10.1162/002081800551280.

Agusman, Damos Dumoli. "Self-Executing And Non-Self-Executing Treaties What Does It

Mean?" Indonesian Journal of International Law 11, no. 3, 2014: 320-344, 344. DOI:

10.17304/ijil.vol11.3.501.

Agusman, Damos Dumoli. “THE COURTS AND TREATIES: INDONESIA’S

PERSPECTIVE,” Padjadjaran Journal of International Law 1, no. 1, 2017: 1-18

Agusman, Damos Dumoli. “THE DYNAMIC DEVELOPMENT ON INDONESIA’S

ATTITUDE TOWARD INTERNATIONAL LAW.” Indonesian Journal of

International Law 13, no. 1, 2015: 1–31, DOI: 10.17304/ijil.vol13.1.624.

Aminoto, Mr., Merdekawati, Agustina. “PROSPEK PENEMPATAN PERJANJIAN

INTERNASIONAL YANG MENGIKAT INDONESIA DALAM HIERARKI

PERATURAN PERUNDANG-UNDANGAN INDONESIA.” Mimbar Hukum 27, no.

1, 2015: 82–97, DOI: 10.22146/jmh.15912.

Atmaja, Gede Marhaendra Wija, et all. “SIKAP MAHKAMAH KONSTITUSI MENGENAI

KEBERLAKUAN PERJANJIAN INTERNASIONAL DALAM HUBUNGANNYA

DENGAN HUKUM NASIONAL.” Jurnal Magister Hukum Udayana (Udayana

Master Law Journal) 7, no. 3, 2018: 329–42, DOI: 10.24843/JMHU.2018.v07.i03.p05.

Benvenisti, E., Downs, G. W. “NATIONAL COURTS, DOMESTIC DEMOCRACY, AND

THE EVOLUTION OF INTERNATIONAL LAW.” European Journal of International

Law 20, no. 1, 2009: 59–72, DOI: 10.1093/ejil/chp004.

Benvenisti, Eyal. “RECLAIMING DEMOCRACY: THE STRATEGIC USES OF FOREIGN

AND INTERNATIONAL LAW BY NATIONAL COURTS,” American Journal of

International Law 102, no. 2, 2008: 241-274, DOI: 10.2307/30034538.

Bhandari, Surendra. “GLOBAL CONSTITUTIONALISM AND THE

CONSTITUTIONALIZATION OF INTERNATIONAL RELATIONS: A

REFLECTION OF ASIAN APPROACHES TO INTERNATIONAL LAW,”

Ritsumeikan Annual Review of International Studies 12, 2013: 16–17, DOI:

10.2139/ssrn.2402084.

Biermann, Frank., Pattberg, Philipp. “GLOBAL ENVIRONMENTAL GOVERNANCE:

TAKING STOCK, MOVING FORWARD.” Annual Review of Environment and

Resources 33, no. 1, 2008: 277–94, DOI: 10.1146/annurev.environ.33.050707.085733.

Cole, Daniel H. “FROM GLOBAL TO POLYCENTRIC CLIMATE GOVERNANCE.”

Climate Law 2, no. 3, 2011: 395–413, DOI: 10.3233/CL-2011-042.

Dewanto, Wisnu Aryo. “PENERAPAN PERJANJIAN INTERNASIONAL DI

PENGADILAN NASIONAL: SEBUAH KRITIK TERHADAP LAPORAN

DELEGASI REPUBLIK INDONESIA KEPADA KOMITE HAK ASASI MANUSIA

https://www.researchgate.net/deref/http%3A%2F%2Fdx.doi.org%2F10.1162%2F002081800551280

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

PERSERIKATAN BANGSA-BANGSA TENTANG IMPLEMENTASI KOVENAN

INTERNASIONAL TENTANG HAK-HAK SIPIL DAN POLITIK.” Padjadjaran

Jurnal Ilmu Hukum 1, no. 1, 2014: 57–77, DOI: 10.22304/pjih.v1n1.a4.

Dingwerth, Klaus., Pattberg, Philipp. “GLOBAL GOVERNANCE AS A PERSPECTIVE ON

WORLD POLITICS.” Global Governance 12, no. 2, 2006: 185–203.

Ellison, David., Morris, Cindy E. “TREES, FORESTS AND WATER: COOL INSIGHTS FOR

A HOT WORLD | ELSEVIER ENHANCED READER,” Global Environmental

Change 43, 2017: 51–61, DOI: 10.1016/j.gloenvcha.2017.01.002.

Falk, Richard A. “THE ROLE OF DOMESTIC COURTS IN THE INTERNATIONAL

LEGAL ORDER,” Indiana Law Journal 39, no. 3, 1964: 429-445.

Isra, Saldi. “PERAN MAHKAMAH KONSTITUSI DALAM PENGUATAN HAK ASASI

MANUSIA DI INDONESIA.” Jurnal Konstitusi 11, no. 3, 2016: 409–27, DOI:

10.31078/jk%x.

Janicke, Martin. "THE MULTI-LEVEL SYSTEM OF GLOBAL CLIMATE GOVERNANCE

– THE MODEL AND ITS CURRENT STATE." Environmental Policy and

Governance 27, no. 2, 2017: 108–21, DOI: 10.1002/eet.1747.

Kim, Rakhyun E. “IS GLOBAL GOVERNANCE FRAGMENTED, POLYCENTRIC, OR

COMPLEX? THE STATE OF THE ART OF THE NETWORK APPROACH.”

International Studies Review 22, no. 4, 2019: 903-931, DOI: 10.1093/isr/viz052.

Manan, Bagir, Harijanti, Susi Dwi. “KONSTITUSI DAN HAK ASASI MANUSIA.”

Padjadjaran Journal of Law 3, no. 3, 2016: 448–67, DOI: /10.22304/pjih.v3.n3.a1.

Melatyugra, Ninon. “MENDORONG SIKAP LEBIH BERSAHABAT TERHADAP HUKUM

INTERNASIONAL: PENERAPAN HUKUM INTERNASIONAL OLEH

PENGADILAN INDONESIA.” Refleksi Hukum 1, no. 2, 2016: 45–60, DOI:

10.24246/jrh.2016.v1.i1.p45-60.

Rajamani, Lavanya. “THE 2015 PARIS AGREEMENT: INTERPLAY BETWEEN HARD,

SOFT AND NON-OBLIGATIONS.” Journal of Environmental Law 28, no. 2, 2016:

337-358.

Rauta, Umbu., Melatyugra, Ninon. “HUKUM INTERNASIONAL SEBAGAI ALAT

INTERPRETASI DALAM PENGUJIAN UNDANG-UNDANG.” Jurnal Konstitusi

15, no. 1, 2018: 73–94, DOI: 10.31078/jk1514.

Slaughter, Anne-Marie, Burke-White, William. “THE FUTURE OF INTERNATIONAL LAW

IS DOMESTIC (OR, THE EUROPEAN WAY OF LAW),” Harvard International Law

Journal 47, no. 2, 2006: 327-352.

Sloss, David. “USING INTERNATIONAL LAW TO ENHANCE DEMOCRACY,” Virginia

Journal of International Law 47, no. 1, 2006: 1–61.

Sukarno, Kama. “PENERAPAN PERJANJIAN INTERNASIONAL DI PENGADILAN

NASIONAL INDONESIA: STUDI TERHADAP PUTUSAN-PUTUSAN

MAHKAMAH KONSTITUSI.” Padjadjaran Journal of Law 3, no. 3, 2016: 587–608,

DOI: 10.22304/pjih.v3.n3.a8.

Verdier, Pierre-Hugues., Versteeg, Mila. “INTERNATIONAL LAW IN NATIONAL LEGAL

SYSTEMS: AN EMPIRICAL INVESTIGATION.” The American Journal of

International Law 109, no. 3, 2015: 514–33, DOI: 10.5305/amerjintelaw.109.3.0514.

B. Book, Dissertation, Report
Agusman, Damos Dumoli. Hukum Perjanjian Internasional: Kajian Teori Dan Praktik

Indonesia. Bandung: Refika Aditama, 2010.

Cassese, Antonio. International Law. First Edition. Oxford: Oxford University Press, 2001.

Ert, Gib van. “Canada.” In The Role of Domestic Courts in Treaty Enforcement: A

Comparative Study, 1st ed. New York: Cambridge University Press, 2009.

Lampung Journal of International Law (LaJIL) P-ISSN: 2656-6532

Volume 3 Issue 1, 2021 E-ISSN: 2723-2603

Friedman, Thomas. The World is Flat. First updated and expanded. New York: Picador, 2007.

Jordan, Andrew, and Dave Huitema. Governing Climate Change Polycentrically: Setting the

Scene. In Governing Climate Change: Polycentricity in Action?, 1st ed., Cambridge:

Cambridge University Press, 2018.

Nollkaemper, André. “The Netherlands.” In The Role of Domestic Courts in Treaty

Enforcement: A Comparative Study, 1st ed. New York: Cambridge University Press,

2009.

Ostrom, Elinor. “A Polycentric Approach for Coping with Climate Change,” 2009. World Bank

Policy Research Working Paper 5095.

Setzer, Joana., Nachmany, Michal. National Governance: The State’s Role in Steering

Polycentric Action. In Governing Climate Change: Polycentricity in Action?, 1st ed.,

Cambridge: Cambridge University Press, n.d.

Sharon Weill, “The Role of National Courts in Applying International Humanitarian Law: From

Apology to Judicial Activism”, Ph.D. diss., University of Geneva, 2012

Sloss, David. “Treaty Enforcement in Domestic Courts: A Comparative Analysis.” In The Role

of Domestic Courts in Treaty Enforcement: A Comparative Study, 1st ed. New York:

Cambridge University Press, n.d.

Sloss, David., Alstine, Michael Van. “International Law in Domestic Courts,” Book Chapter

Santa Clara Law Digital Commons, September 2015.

Soekanto, Soerjono., Mamudji, Sri. Penelitian Hukum Normatif: Suatu Tinjauan Singkat

Jakarta: Rajawali Press, 2009.

Vereinte Nationen, ed. Global Governance and Global Rules for Development in the Post-2015

Era: Policy Note. United Nations Publication. New York, NY: United Nations, 2014.

Wahana Lingkungan Hidup Indonesia. “Tinjauan Lingkungan Hidup 2020: Menabur Investasi,

Menuai Krisis Multidimensi.” Annual Report. Jakarta: Wahana Lingkungan Hidup

Indonesia, January 2020.

C. Legislation
Central Kalimantan Forest Fire Case, No. 118/Pdt.G/LH/2016/PN Plk (Palangkaraya District

Court March 22, 2017).

Central Kalimantan Forest Fire Case, No. 3555 K/Pdt/2018 (Supreme Court of Indonesia,

Cassation level July 16, 2019).

Papua Internet Restriction, No. 230/G/TF/2019/PTUN-JKT (Jakarta Administrative Court June

3, 2020).

Research, Education, Training and Education Agency, Supreme Court of Indonesia. “Class

Action and Citizen Lawsuit: Research Report.” Supreme Court of Indonesia, 2009.

The Law on Truth and Reconciliation Commission, No. 006/PUU-IV/2006 (Constitutional

Court December 4, 2006).

D. Internet
Forest Watch Indonesia. “Angka Deforestasi Sebagai ‘Alarm’ Memburuknya Hutan

Indonesia.” Jakarta: Forest Watch Indonesia, 2019. http://fwi.or.id/wp-

content/uploads/2019/10/FS_Deforestasi_FWI_small.pdf.

http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency,

Accessed on August 29, 2019.

https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-

change, Accessed August 15, 2020.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyI

D=8&DocTypeID=11, Accessed on March 29, 2004.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyI

http://fwi.or.id/wp-content/uploads/2019/10/FS_Deforestasi_FWI_small.pdf
http://fwi.or.id/wp-content/uploads/2019/10/FS_Deforestasi_FWI_small.pdf
http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency
https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change
https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11

Strengthening Global Governance: Indonesia’s Court and the … Ary Aprianto

D=9&DocTypeID=11, Accessed on August 10, 2017.

https://www.gdrc.org/u-gov/global-neighbourhood/, Accessed May 6, 2020.

https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-

governance-by-anne-marie-slaughter-2015-12, December 28, 2015.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11
https://www.gdrc.org/u-gov/global-neighbourhood/
https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12
https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12