Legal Protection of Indonesian Coral Reefs in Papua Province
| Author | Yanti Fristikawati |
| Position | Professor of Faculty of Law at Atma Jaya Catholic University of Indonesia. LL.B.(Diponegoro), LL.M.(Padjadjaran), Ph.D.(Parahyangan) |
| Pages | 323-344 |
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Indonesia is an archipelagic country with 116 small islands and groups of small islands, which are susceptible to ecological damage. Indonesia possesses a great diversity of flora and fauna, including coral reefs. Indonesia’s sea territory is two-thirds the size of its land territory, and much of the nation’s ecological diversity lies within this water expanse. Indonesian coral reefs lie at the centre of global coral reef biodiversity. Coral reefs are critically important for both the ecosystem and the goods and services that they make possible in maritime tropical and subtropical nations like Indonesia.
One national Profile of Indonesia states that: “As a world center of coral diversity (500 species), with 81,000 km of coastline and 5.8 million km2 of marine area, Indonesia’s important marine resources represent a significant management challenge to achieve sustainable levels of development.” 1 Indonesia maintains a few national conservation parks, including Radja Ampat in western Papua, the biggest marine national park in Indonesia, with abundant ecological diversity. Nonetheless, the sad fact is that the quality and quantity of biodiversity in Indonesia is decreasing yearly, due to various causes, including industry, fishing, natural disasters, and tourism.
A coral reef is a reef consisting of coral consolidated into limestone. More broadly, a coral reef is comprised of aragonite structures produced by living organisms and found in marine waters containing few nutrients.2 In most reefs, the predominant organisms are stony corals, which are colonial cnidarians that secrete an exoskeleton of calcium carbonate. Coral reefs by definition are composed predominantly of scleractinian corals (Phylum Cnidaria; Class Anthozoa; Order Scleractinia). Most scleractinians, and particularly those that build reefs, are colonial, anemone-like animals that house microscopic algae and secrete skeletal structures composed of calcium carbonate.
Radja Ampat is rich in marine diversity, and scientific research has been taken to examine the reef. The scientists surveyed an area of about 3,700 square miles (6,000 square kilometers). The results revealed was allegedly an extraordinary wealth of marine biodiversity: 450 species of hard coral, more than 600 mollusk species, and possibly as many as 1,100 fish species. The question that immediately arises from this Page 325 situation is how to protect Indonesian biodiversity, especially coral reefs in Radja Ampat, from activities that will do further harm.
One method to protect the environment is by enacting regulations, either in the form of national legislation or international treaties. Indonesia has enacted Law No. 23 Year 1997, regarding Environmental Management, as an umbrella provision to protect the environment, and also Law No. 5 Year 1990, regarding Biodiversity. There are also international conventions that may be applied in Indonesia, including the United Nations Convention on the Law of the Sea ( “UNCLOS” ) of 1982 and the Convention on Biological Diversity of 1992.
This paper will discuss how Indonesian regulations may be used to protect coral reefs as an important marine ecosystem, and will also incorporate an analysis of UNCLOS and the Convention on Biological Diversity.
There are several principals of international environmental law that may be used to protect the marine environment, including, the Precautionary Principle, the State Responsibility Principle, the Principle of Sustainable Development, and the Polluter Pays Principle.
The Precautionary Principle is related to the Prevention Principle, which provides that States are to take action in the first instance and, if possible, before damage occurs. The Rio Declaration also states that in order to protect the environment, a precautionary approach shall be widely applied by States according to their capabilities: “Where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 4
The Precautionary Principle provides guidance in the development and application of international environmental law where there is scientific uncertainty. By this principle, States have to act carefully and with foresight when taking decisions that concern activities that may have an adverse impact on the environment.5
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The Precautionary Principle is gaining increasing support as part of International Law of the Environment, and should be used where there is otherwise insufficient material to justify action, even if this means acting in advance of full scientific evidential support.6
Article 1 of the Draft Article of the Convention on Responsibility of States for Internationally Wrongful Acts7 declares that: “Every internationally wrongful act of a state entails the international responsibility of a state.” 8 Regarding international environmental law, States have the responsibility to protect their territory from any activities that would cause environmental damage. The Stockholm Declaration and the Rio Declaration state that:
States have, in accordance with the Charter of the United Nations, and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other State or of areas beyond the limits of national jurisdiction. States have the responsibility to ensure that activities within their jurisdiction do not cause damage to the environment.9
This responsibility is related to the obligation of all States to respect the rights of other States.
In environmental law, this is known as the principle that development that meets the needs of the present without compromising the ability of future generations to meet their own needs.10 Sustainable development preserves natural resources for the benefit of future generations. Some treaties concerning environmental protection refer to this Page 327 principle as a concept of sustainable use. The Rio Declaration and Johannesburg Declaration incorporate some principles pertaining to sustainable development.
The Principle of Sustainable Development provides that the right to development must be implemented equitably so as to meet the developmental and environmental needs of present and future generations.11 In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.12 Furthermore, all States and people shall cooperate with the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world.13
The Polluter Pays Principle aims at determining how the costs of pollution prevention and control must be allocated. The Polluter Pays Principle requires that the costs of pollution should be borne by the person responsible for causing the pollution and consequential costs.14 In other words, the polluter must pay. This principle is today a generally recognized principle of International Environmental Law.15
National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.16
Law No. 23 is an umbrella law implemented through regulations. It provides for basic principles of environmental management in Indonesia, namely:
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Environmental management, which is to be performed based on the principle of national responsibility, the principle of sustainability, and the principle of exploitation, aims to create environmentally sustainable development in the framework of the holistic development of the Indonesian person and the development of an Indonesian community in its entirety which is faithful and devoted to God the Almighty.17
Based on the Principle of State Responsibility, on the one hand, and the Principle of the sovereign right to exploit natural resources,
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