Justiciability of Economic and Social Rights in Indonesia: The Importance of Ratifying the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights (ICESCR)
Abstract: This article aims to
analyse how the Indonesian government complies with obligaƟons enshrined in the
InternaƟonal Covenant on Economic, Social, and Cultural Rights (ICESCR). Furthermore,
this study will assess how the naƟonal law provides jusƟciability as well as redress
if the violaƟons of socio-economic rights occur. The protecƟon of socio-economic
rights in Indonesia is enshrined in the ConsƟtuƟon, the Human Rights Law Act,
and other themaƟc acts; such as the Children ProtecƟon Act, Labour Act, etc.
However, some violaƟons have occurred these days both by commission and
omission of the government, such as in the Lapindo and Mesuji case. These two
cases show that the rights to adequate housing, work, health, healthy
environment, and rights to land have been severely violated. In the case of Lapindo,
the decision of the court regarding the violaƟons of socio-economic rights was unreasonable;
they did not even put the element of tort into consideraƟon for their decision concerning
the human rights norm. For the second case, the process of legal seƩlement is
sƟll ongoing. Thus, the government has to establish a comprehensive policy to
redress the violaƟon of the socio-economic rights as these rights are not
jusƟciable before the naƟonal law. If naƟonal law does not provide enforcing
element, ciƟzens will have no place to file a complaint for the violaƟon of
socio-economic rights. The OpƟonal Protocol to the (OP to the ICESCR) provides
individual communicaƟon to the CommiƩee (CESCR). ReflecƟng from the cases of
Lapindo and Mesuji, this paper will elaborate how the OP to the ICESCR guarantees
the jusƟciability of socio-economic rights.
Keywords: individual
communicaƟon, justiciability, economic and social rights, state obligation,
Commitee CESCR
Author: Erna Dyah Kusumawati
Journal Code: jphukumgg140027
