The application of international cultural rights in protecting Indigenous peoples’ land property in Indonesia

Abstract

Since the Indonesian government adopted the Agrarian Law 1960, which emphasises that any lands or territories without land title or land certificate are claimed belong to the state property, Indigenous peoples argue that the right over their land is based on a common recognition, instead of an official certification. This article aims to analyse the applicability of international cultural rights’ norms in protecting Indigenous rights to land in Indonesia. Several international instruments, such as the UNESCO Conventions, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, have been urged that any government shall respect and protect cultural rights for everyone, including Indigenous peoples. Therefore, protecting Indigenous intangible and tangible cultural heritage would not be possible without protecting their ancestral lands, territories and resources. In other words, securing the right to traditional lands is a prerequisite for Indigenous communities’ cultural survival in Indonesia.

Introduction

The Indonesian Indigenous Peoples Organisation, as reported by CNN Indonesia (2021), informed that three leaders of the Long Bentuq Village’s Indigenous Dayak Modang Long Wai (Indigenous tribe in East Kutai Regency of Borneo Islands, Indonesia) were arrested by a district police force in East Kutai Regency, East Kalimantan Province, following their participation in a demonstration protesting against oil palm firms which possess plantation entitlements over their inherited territories from the central government (Saturi, 2021). Previously, the local authorities detained the Indigenous leader of Kinapan village, situated in the Lamandau District of Central Kalimantan Province. The police assert that the chief instigated his people to destroy the palm oil company’s infrastructure that operates on their ancestral land (CNN Indonesia, 2020).

A portrayal of the Indigenous people’s opposition to the dominance of palm oil corporations supported by the government, such as the aforementioned examples, is merely a glimpse into a multitude of significant events spanning across the Indonesian archipelago that involve the confiscation of the Indigenous people’s ancestral lands, territories and resources, perpetrated by State-owned corporations and private national or multi-national corporations. There are several other cases of expropriation of customary land occur after the government granting land concession rights to oil palm or extractive companies across regions of Indonesia, such as in Sumatra, Java, Sulawesi, Nusa Tenggara and Papua (Bedner, 2016; Karokaro, 2021; Nicholas Jong, 2021; Van der Eng, 2016).

Since the New Order regime, the government has granted concession rights to companies that have impacted on Indigenous peoples’ lands. For instance, in 1976, the Suharto administration signed a contract with Freeport-McMoRan, a US-based company that formed a joint venture with the Rio Tinto Company, for the exploitation of gold, silver, copper, and other minerals in West Papua (Dea, 2017). The government allocated approximately 10,000 hectares of land to the company, which was later expanded to 2.6 million hectares in 1995 (Leith, 2003). It made this company become the most extensive gold mining on Earth.

On the contrary, the Indigenous Amungme and Kamoro tribes, residing, respectively, in the highlands of West Papua and the southern coastal regions of West Papua, were forcibly displaced from their ancestral lands, without receiving compensation or the benefit of free, prior and informed consent (Braithwaite et al., 2010). For the Amungme community, land not only serves as communal property but also embodies their ancestral spirit known as Tu Ni Me Ni (West Papuan Mother Earth). This expression, as quoted by Braithwaite et al. (2010),

to be their ancestral grandmother, Tu Ni Me Ni . . . . Freeport has decapitated Tu Ni Me Ni’s head, is digging out her stomach and dumping her intestines in the rivers, a process that pollutes her life-giving milk. To the Amungme, Freeport’s mining activities are killing their mother on which they depend for sustenance—literally and spiritually. (p. 71)

Over the years, numerous foreign and domestic entities have exploited Indonesia’s natural resources. Among the extractive industries, Freeport-McMoRan stands out with over 6,000 legally predicted and 8,663 illegally operating mining projects within Indonesian borders (Robinson, 2017). The government has also boosted national development by utilising forest resources for timber industries and palm oil plantations. In the 1990s, for example, the central government issued forest production permits for 657 logging enterprises to manage and utilise timber from the forest resources, covering approximately 69 million hectares (Hidayat, 2008). Several transnational companies were also involved in these industries, including the US-based companies, such as Weyerhauser and Goerge Pacific, and Japanese companies, such as Mitsubishi, Sumitomo, Shin Asahigawa & Ataka and others (Hidayat, 2008).

Konsorsium Pembaruan Agraria (The Indonesian Agrarian Reform Consortium) (KPA) has reported recurring clashes between communities and companies over land in various regions of Indonesia. For example, in 2022, KPA reported that 212 land conflicts occurred, involving 459 villages, covering an area of 1,035,613 hectares across the Indonesian archipelago and affecting approximately 346,402 Indigenous households (Indah Pratama, 2023). The conflict is predominantly observed in the plantation sector, specifically for palm oil, logging sector, and mining—all of which have long been linked with extensive deforestation and land seizures in Indonesia. The disputes have led to fatalities too, as indicated by Thea (2023) report, stating 497 criminalisation cases, 38 instances of torture, and three deaths in 2022.

The suffering of Indigenous peoples worldwide can be traced back several centuries to the emergence of the colonial system in the early 16th century. The Spanish colonialists were initially denounced by Bartolome de Las Casas (1484–1566), a priest and scholar, for seizing the lands of the Native Americans (Anaya & Rogers, 2009; Saul, 2016). The criticism arose in response to the brutal actions of the Spaniards against Indigenous peoples, resulting in widespread human rights abuses, particularly during the conquest of Indigenous lands and territories (Gilbert, 2006).

In the Indonesian context, Indigenous peoples began losing access to their collective land rights when the Netherland East Indies (NEI) state regime implemented Agrarische Wet 1870 (Agrarian Law 1870) and Agrarisch Besluit 1870 (Agrarian Directive 1870). This occurred during a time when the Dutch colonial authorities sought to extend their control over the archipelago and subject the population to their rule while exploiting the region’s natural resources. The measures taken by colonial authorities had significant consequences for Indigenous communities, including loss of land and displacement, as well as social, economic and cultural upheaval (Fahmi, 2020). These laws were introduced to create a legal framework for the colonial administration to safeguard land concession rights for foreign investment. It was an essential measure that guaranteed stability and success for foreign investment in the colonial administration. The right to concession land allowed private enterprises to legally utilise, manage and control land under the Erfpachtrecht, or the right to lease Indigenous lands for a period of 75 years (Klaveren, 2013). This legal permission was stated in the Agrarische Wet 1870 that “Volgens regels bij algemeene verordening te stellen, worden gronden afgestaan in erfpacht voor niet langer dan vijf en zeventig jaren [According to the general ordinance, the land is leased for a maximum of seventy-five years]” (Rouffaer, 1918, p. 10).

Since decolonisation, the Republic of Indonesia has consistently upheld the land law principles inherited from Dutch colonialism (Bedner, 2016; Van der Eng, 2016). It reflects the implementation of the state domain principle, which states that unregistered lands belong to the state, controlling all land within Indonesia’s territory, including the collective rights of Indigenous peoples to land or territories, unless legally owned by individuals (Bedner, 2016; Fahmi & Armia, 2022). Accordingly, State authorities frequently expropriate Indigenous lands and territories to support the nation’s business and economic development.

Undoubtedly, the privileges to territories, lands and natural resources hold crucial significance to Indigenous communities. Anaya and Rogers (2009) have pointed out that property rights concerning land and resources are preconditions for the physical and cultural survival of these communities. Therefore, the present lands and resources also retain utmost significance for the continuation of Indigenous peoples’ existence in contemporary society. Additionally, Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has emphasised that “Indigenous peoples shall not be forcibly removed from their lands or territories” (United Nations General Assembly, 2007). Moreover, Article 25 of UNDRIP highlights the importance for Indigenous peoples to pursue of spiritual practices and traditions that associated with their ancestral land or their holy forest (United Nations Office of the High Commissioner for Human Rights [UN OHCHR], 2021).

This study explores the legal ambiguity surrounding the recognition of Indigenous land rights in Indonesia. It critically evaluates the potential efficacy of international governance initiatives, specifically the international norms on cultural rights, in addressing instances of land grabs or land expropriation affecting Indigenous communities in Indonesia. After the introductory section, the subsequent part of the article provides a more detailed explanation of the research design and methodology employed in the study. In the subsequent section, this article will undertake an examination of the suitability of international cultural rights instruments in safeguarding the rights of Indigenous communities to their land in Indonesia. This analysis encompasses an exploration of the legal acknowledgement of Indigenous land rights from the colonial period to present-day Indonesia, the evolution of sector-specific legislation pertaining to Indigenous land rights in Indonesia and a comprehensive evaluation of international cultural rights norms to substantiate the Indigenous population’s assertion of their ancestral land property rights in contemporary Indonesia.

Research design and methods

This study draws on a socio-legal research method (Banakar & Travers, 2005). Socio-legal studies is the study of legal ideas, practices and institutions in their social, cultural and historical contexts (Creutzfeldt et al., 2019). Its methodology is a combination of legal research and social studies of law. Law is not only a doctrinal method or a set of rules, but also an instrument of social control that functions in and for society. Its origin lies in societal needs and its purpose serves the common good (Siddiq-Armia, 2022). The comprehensive examination of the necessity for a new legislation, the modification of current legislation and the challenges associated with its execution are best facilitated through a sociological investigation (Hutchinson, 2021). The text proposes understanding the present legal provisions through analysis of the historical progression of legal doctrines (Musson & Stebbings, 2012). Therefore, this approach will employ the analysis of the evolution of legal doctrines and legal cultures of international law to examine the overall global and specific Indonesian contexts of protecting the land rights of Indigenous peoples.

Findings and discussion

From the state-domain to the state-control doctrines

Historically, prior Indonesia declared itself a nation-state, state control over land had already existed, particularly within the Java Kingdom of Mataram, where the monarch held supreme leadership with absolute power over society (Hidayat, 2016; Ridwan, 2023). The monarch was the ultimate authority over all territories, including forests and their resources within the kingdom’s borders. Consequently, the right to cultivate these resources rested with the king and was subject to their determination. For example, if the Vereenigde Oost Indische Compagnie (Dutch East India Company) (VOC) endeavoured to utilise the woodland resources, particularly timber, within the kingdom’s land, they were required to obtain the king’s permission to do so (Hidayat, 2016). This permission was called concessionaire (rights from the King of Mataram to foreign investors who wanted to exploit the forest resources).

After gaining dominance in Java in 1602, the VOC governed the native land and enforced slave labour on Indigenous people for their plantations (Ricklefs, 2008). However, after almost 200 years of ruling the power, the VOC collapsed in 1799 (Unoki, 2012). The Dutch royal family took over the power and established the NEI state in the early 1800s (Ricklefs, 2008). As a new landlord across the archipelago, the NEI implemented the colonial law, a similar legal system in the Netherlands, called a concordance principle (Slaats, 1994). This legal system was referred to as a positivism law system, the Napoleonic codes, or the Roman-Dutch law system (Van Leeuwen, 1820). The NEI government passed several laws in 1847–1848, including Algemene Bepalingen van Wetgeving in Indonesien (General Provisions of Legislation in Indonesia), Reglement op de rechterlijke Organisatie en Het Beleid der Justitie (Regulation of Judiciary and the Policy of Justice), Burgerlijk Wetboek (Civil Law), Wetboek van Koophandel (Commercial Code) and Agrarische Wet (Agrarian Law) (Angelino, 2012).

To support the Agrarische Wet implementation, the Dutch issued Agrarisch Besluit (the Agrarian Decree) in 1870 (Halkis, 2006; van Vollenhoven, 2013). This regulation had shifted the right to land ownership, especially regarding the collective rights of Indigenous peoples. Article 1 of the regulation stipulated that “Alles grond, waarop niet door anderen recht vaneigndom wordt bewezen, domein van de staat is (All lands that are not the property of others is the domain of the state)” (Rouffaer, 1918, p. 123; van Der Lith et al., 1899, p. 162).

The colonial government made general claims to free land or uncultivated land as a part of the Dutch colonial state property, and they had the right to lease it to other third parties (Halkis, 2006; van Vollenhoven, 2013). This claim was also similar to the British colonialist’s claim over the colonised lands, such as in Australia or in New Zealand, named the terra-nullius doctrine (Connor, 2005; Feiring, 2013; Lindqvist, 2007). To legalise their claim, the NEI State also enacted the Land Lease Ordinance 1871. This Ordinance was necessary to protect and allocate to foreign planters; Article 1 states that

The lands of natives, pursuant to the provisions of the fourth or eighth section of the law 1870 No. 55 either held in acquired ownership of hereditary individual use possession or as a temporary shareholding in lands occupied by the municipality, may be rented out to non-natives according to these regulations in the following laws. (As cited in Gordon, 2012, p. 79)

This provision insisted that the leasing of Indigenous lands was made legally under some conditions (Klaveren, 2013). For instance, the renters of the lands must be Dutch persons or Dutch-registered companies. Lands held in individual land use rights and communal land rights could be leased out for a maximum (but renewable) 5 years, and foreign planters might rent the land under this provision (McWilliam, 2006).

The Indonesian claims on Indigenous people’s lands

Indonesia, the largest nation in Southeast Asia, encompasses a vast archipelago of 17,499 islands spanning a total land area of 1,919,440 square kilometres. This nation boasts a rich abundance of natural resources (Encyclopedia of the Nations, 2021). Hence, the Indonesian Constitution guarantees that the State has the authority and entitlement to regulate all aforementioned assets. Accordingly, Article 33, paragraph 3 of the 1945 Indonesian Constitution asserted that “The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people.”

The issue arises when the State asserts conflicting territorial claims on land that Indigenous peoples have occupied for generations. The discrepancy over this claim arises from the respective parties involved using different legal sources. The State employs a civil law system, while Indigenous communities adhere to customary law. Paradoxically, Article 33, paragraph 3 of the Indonesian Constitution fails to provide sufficient clarity regarding the State’s control over land and natural resources. However, Article 33, paragraph 5 of the 1945 Constitution explicitly states that further regulations regarding the implementation of this article should be established through legislative means.

The interpretation of this provision is commonly undertaken through a range of sector-specific laws, primarily concerned with safeguarding national economic interests. There are several laws pertaining to this subject, namely, Law No. 5 of 1960 concerning Basic Agrarian Law (BAL), Law No. 5 of 1967—subsequently amended to Law No. 41 of 1999 on Basic Forestry Law, and Law No. 11 of 1967—afterwards amended to Law No. 3 of 2020 on Mining of Mineral and Coal. Furthermore, it is worth noting that Law No. 1 of 1967 about Foreign Investment and Law No. 39 of 2014 regarding Plantation, among other legislations, are relevant in this context. Many existing laws tend to interpret the significance of Article 33, paragraph 3 in a manner that prioritises partial and sector-specific interests, sometimes neglecting the concerns of Indigenous communities and their rights. In the subsequent part, the author will expound upon three sectoral laws that have impacted Indigenous land rights, specifically the Agrarian, Forestry, and Mining Laws.

In 1960, the Indonesian government adopted the BAL to replace the Agrarische Wet and other colonial regulations concerning land tenure. The BAL was designed to eliminate various provisions of the Dutch colonial regime, mostly linked to the state domain principle, under which any Indigenous land without documented ownership was considered state property. This policy is reflected in the Preamble of the BAL, as it states that

That the Agrarian law, which is still valid today, is partly based on aims on principles of the colonial government and partly influenced by it and is thus in conflict with the interest of the people and the State in the completion of the present National Revolution and the over-all development. (BAL No. 5 of 1960)

Accordingly, the law revoked, as follows:

• 1. Agrarische Wet 1870, (Section 55) as contained in Article 51 Wet op de Staatsinrichting van Nederlands Indies (Dutch East Indies Constitution Act);

• 2. Provisions contained in other paragraphs of that Article;

• (b) Algemene Domeinverklaring (General the NEI state’s domain claim) as meant in Section 1875-119a;

• (c) Domeinverklaring van Sumatera (the NEI state’s domain claim for Sumatera region) as meant in Article 1 of Section 1874-94f;

• (d) Domeinverklaring van Keresidenan Manado (the NEI state’s domain claim for the Manado region) as meant in Article 1 of Section 1877-55;

• (e) Domeinverklaring van Residentie Zuilder en Oosterafdeling van Borneo (the NEI state’s domain claim for the Southern and Eastern Parts of Borneo region) as meant in Article 1 of Section 1888-58;

• 3. Koninklijk Besluit (Decree of the Dutch Kingdom) dated 16 April 1972 and the regulations concerning its implementation.

However, although the law abolished the principle of state domain, it instead applies the principle of control over all land, waters and space within the Indonesian territory. The rights to control, manage and use the lands under Indonesian sovereign territory are stated in Article 2 of the BAL, that

Based on the provision Article 33, paragraph (3) of the Constitution and matters meant in Article 1, the soil, water and airspace, including the natural resources, contained therein are in the highest instance controlled by the State being and Authoritative Organisation of the whole People.

Interestingly, the Law has recognised Indigenous peoples’ right to their ancestral lands under certain conditions. Article 3 specifies,

The implementation of Hak Ulayat [Indigenous customary land rights] and other similar rights of Indigenous peoples must conform to both national and state interests, and cannot contradict national Acts or higher-level regulations, as long as these communities remain in existence

Moreover, it is essential to verify the existence of Indigenous groups and their land rights through a consultation process with all stakeholders. The outcome of this process shall be documented in the decision of the regional chief and a map explaining the demarcation of communal lands. However, it is worth noting that Indigenous customary rights are not valid on properties legally owned by an individual or a company. In this scenario, unless their legal existence is proven otherwise through a court decision, the Indigenous community’s collective land rights are deemed lapsed.

The Indonesian government has also adopted the Forestry Law No. 5 of 1967, which provides a legal framework for managing and exploiting forest resources. According to Article 5 of the legislation, the state possesses complete jurisdiction to supervise all woodland areas and resources. The article clearly states that all forests in the Republic of Indonesia, including natural resources, are controlled by the State (Pemerintah Pusat Indonesia, 1967). After a period of reform, the government enacted a new forestry law, referred to as Law No. 41 of 1999, replacing the preceding Basic Forestry Law No. 5 of 1967. In contrast to its forerunner, which only categorised forests into two types—State Forests and Private Forests—Law 41 of 1999 splits forest purposes into three distinct groups: Conservation Forests, Protection Forests, and Production Forests (Pemerintah Pusat Indonesia, 1999).

However, both the previous and current approach fail to acknowledge the sovereignty of Indigenous forest territories. Furthermore, the designation of state-owned forests includes Indigenous forests, and consequently, the state retains control over the management and utilisation of their resources (Forest Governance and Policy, 2016). The classification of the forest area inhabited by Indigenous peoples under the jurisdiction of State Forests is explicated in Article 1, paragraph 6 of Law No. 41 of 1999, where Indigenous forest is defined as the State forests located in customary areas of jurisdiction. Consequently, the traditional rights of Indigenous communities to their ancestral woodland have been disregarded.

In March 2012, representatives of the Kasepuhan Cisitu (Indigenous tribe of the Sunda region, West Java, Indonesia) communities, along with the Indonesian Indigenous People Organisation, initiated a judicial review of the Law No. 41 of 1999 concerning Forestry, particularly related to Article 1, paragraph 6 of Forestry law, which states that “customary forests are state forests located within the territory of customary law communities” (Indonesia, 1999, p. 3). Following an examination of the case, the Constitutional Court issued Decision No. 35/PUU-X/2012, which determined that Article 1, paragraph 6 of the law was contrary to Article 1 paragraph (3), Article 18B paragraph (2), Article 28C paragraph (1), Article 28D paragraph (1), Article 28G paragraph (1), and Article 28I paragraph (3) of the 1945 Constitution (Konstitusi, 2012) . The Constitutional Court held that the word “state” in Article 1 point 6 has no force and is vague in legal substance, and causes Indigenous rights to customary forest areas to be discriminatory (Tobroni, 2013). Therefore, the Court granted the Indigenous people’s claim that customary forests are forests located within the territory of customary law communities, and not state forests.

Initially, the Forestry Law 1967 aimed to achieve welfare for all, based on principles of equity, sustainability and environmentalism. Article 4, paragraph 1 of the law specifies that “All forests within the territory of the Republic of Indonesia, including all-natural resources therein, are under the State’s control for the benefit of the people.” Unfortunately, this provision is not fully implemented in practice. Presidential Decree No. 16 of 2015 emphasises that the Ministry of Environment and Forestry (MoEF) holds the authority to control and manage the forest, and the MoEF is the sole institution able to issue permits for forest use, such as settling, logging, mining or planting. This legislation has prompted many foreign transnational corporations to invest their capital in natural resources and forestry projects. This policy replicates that of the Suharto Regime (1966–1997), wherein the government granted licences to private and state-owned logging companies and industrial timber plantation companies for 20–25 years to use State Forest lands, including Indigenous forest (Jamin et al., 2022).

Moreover, the adoption of Law No. 11 of 1967 on Mining has also resulted in a significant alteration of Indigenous peoples’ land rights. The purpose of the law was to exploit natural resources, which have emerged as crucial contributors to national economic development. Robinson (2017) asserts that the exploitation of natural resources through mining is vital to enhance Indonesia’s economic development. The adoption of Foreign Investment Law No. 1 of 1967, which legally authorised the dispensation of natural resources exclusively for foreign investors, drew them to invest in Indonesian territory. Through this legislation, the government signed several bilateral investment treaties in relation to mining, oil and gas. The first agreement for copper and gold mining was contracted by Freeport McMoRan, a US firm, for a duration of 30 years, from 1967 to 1997 (Dea, 2017). The agreement was later extended for another 25 years (Kadir & Murray, 2019).

The application of International norms on cultural rights in protecting Indonesian Indigenous land rights

Nowadays, several international and regional instruments have recognised Indigenous cultural rights, such as the UNESCO Conventions, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The recognition on Indigenous people’s cultural rights has also implemented within the regional level, such as the American Convention on Human Rights (ACHR). Nowadays, this regional convention becomes the most comprehensive human rights instrument that exist in protecting Indigenous peoples’ cultural rights. The ACHR has also become the prototype for other regions, such as the African countries, especially in protecting Indigenous peoples’ rights to land property.

In addition, the International Labour Organization (ILO) Convention No. 169 of 1989 and UNDRIP become the specific international instruments and the most comprehensive international standards in protecting Indigenous peoples’ rights, including in the context of cultural rights. In its Preamble, ILO169 states, “the aspiration of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages, and religions, within the framework of the States in which they live” (ILO, 1989, p. 1). Similarly, UNDRIP has specifically addressed the important to protect Indigenous cultural rights, as it stipulated in part 3 of the Declaration, entitled cultural rights of Indigenous peoples (United Nations General Assembly, 2007).

Hence, the author argues that reclaiming the collective land rights of Indigenous peoples in Indonesia also must be established under the principle of international norms on cultural rights, both intangible cultural heritage (ICH) and tangible cultural heritage (TCH). There are many Indigenous ICH remains within the peoples, such as traditional knowledge, customs, traditions, languages, religions and non-physical substances. Second, claiming over TCH or all physical assets belong to Indigenous society, such as artefacts, historical sites and other things containing cultural values (Francioni & Vrdoljak, 2020).

For Indigenous peoples, rights to traditional lands represent both intangible and tangible, and these aspects are the core of their cultural identities. This explains why the rights deserve to be protected under international law and national law. Article 19, paragraph 2 of the ICH Convention states,

Without prejudice to the provisions of their national legislation and customary law and practices, the States Parties recognize that the safeguarding of intangible cultural heritage is of general interest to humanity, and to that end undertake to cooperate at the bilateral, sub regional, regional and international levels.

The interconnection and intertwine between international law, regional and national law in protecting Indigenous peoples’ cultural rights is essential to ensure each State party fulfils the right. Malanczuk (2002, p. 63) stated, “All rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic sphere of states.”

A similar rule can also be found in Article 27 of the Vienna Convention on the Law of Treaties that “A party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty” (United Nations General Assembly, 1969, p. 11). Malanczuk (2002) argued that there is a general obligation for states to regulate domestic legal matters in accordance with the international legal obligation, and they are free to formulate the obligation on the basis of their domestic legal system. Accordingly, international law has adopted several provisions to protect ICH. For example, Article 27 of the ICCPR states that

In States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. (UN OHCHR, 1966, p. 14)

This provision has recognised that minority groups, including Indigenous peoples, have the right to practise their intangible rights such as religion, culture and language. They are free to practise these rights without any interference or disturbance from any party. Furthermore, the implementation of this right is strongly linked to the lands or territories where Indigenous peoples live. In its Comment No. 23 on the interpretation of Article 27 of the ICCPR, the Human Rights Committee stresses that

with regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. (Human Rights Committee, 1994, p. 3)

Therefore, the protection of the intangible and TCH of Indigenous peoples would not be possible without the protection of their ancestral lands, territories and resources. In other words, securing the right to traditional lands is a prerequisite for the cultural survival of Indigenous communities. Stavenhagen (2012, p. 84) asserted that: “For many Indigenous cultures, continued utilisation of traditional systems for the control and use of territory is essential to their survival, as well as to their individual and collective well-being.”

Therefore, the ICESCR is a crucial tool in safeguarding the cultural rights of all individuals. While the Covenant does not explicitly address the correlation between cultural rights and the land rights of Indigenous communities, it does urge all parties to promote and implement measures to guarantee that all individuals are able to express their culture freely, without fear of discrimination. The principle of non-discrimination has been mentioned in the Covenant’s Preamble that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world” (UN OHCHR, 1966, p. 1).

Furthermore, the relationship between cultural rights and traditional lands or territories is based on the principle that land is of central significance to a culture’s sustenance, and to enjoy this right—it needs the protection of the land from any expropriation efforts (Gilbert, 2006). In the 66th session, the Committee on Economic, Social and Cultural Rights published an Issued Paper on “State Obligation under the International Covenant on Economic, Social and Cultural Rights and governance of land tenure” by referring to Article 17, paragraph 3 of the Resolution 73/165 of 17 December 2018, recommends that

States shall take appropriate measures to provide legal recognition for land tenure rights, including customary land tenure rights not currently protected by law, recognizing the existence of different models and systems. States shall protect legitimate tenure and ensure that peasants and other people working in rural areas are not arbitrarily or unlawfully evicted and that their rights are not otherwise extinguished or infringed. States shall recognise and protect the natural commons and their related systems of collective use and management. (UN OHCHR, 1966, p. 12)

This recommendation shows that the CESCR has moved forwards to focus on land rights, which are essential for Indigenous people to survive. Without access to land, Indigenous find themselves in a deteriorate situation economically, socially and culturally. Indigenous or other isolated tribe people rely upon their traditional lands and resources based on the fact that land is the intangible and tangible asset that constitutes the basis for access to food, livelihood, housing and necessary for the realisation of their cultural life, such as practising their language and religion (Claridge et al., 2015).

Thus, displacing Indigenous from their lands, such as the Kinapan (Indigenous tribe in Borneo, Indonesia), and other Indigenous in the Indonesia archipelago will severely impact their access to traditional livelihoods, such as hunting and fishing. Furthermore, it also impacts the realisation of the right to their cultural life. Ultimately, the host States must respect and protect Indigenous culture, including their traditional knowledge, ritual, heritage site and other cultural identities attached to individuals or groups and the area where their ancestors came from and where they live. This protection includes any illegal or unjust exploitation of their lands, territories and resources by the State or private or transnational enterprises and corporations (Claridge et al., 2015). Hence, the International law has provided a mechanism to settle any dispute over Indigenous land rights managed for the State’s or private enterprises’ interest.

At the regional level, implementing the decision of Inter-American Court of Human Rights as a jurisprudence in protecting Indigenous land rights is the best option for recognising and protecting Indigenous peoples’ land rights as cultural rights in other parts of the world (Wiersma, 2005). The case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua government has shown that applying cultural property was an effective procedure in securing the land claims (Wiersma, 2005). This case emerged after the group filed a lawsuit against Nicaragua’s State in June 1998. The Court examined whether the Nicaragua had violated Article 1 on the obligation to respect Indigenous right to life, Article 21 on the property right and Article 25 on the right to judicial protection (Mayagna [Sumo] Awas Tingni Community v. Nicaragua, 2001). The Indigenous group argued that the Nicaraguan government had deprived their property rights by granting the logging concession over their lands (Wiersma, 2005).

In contrast, the Nicaraguan government argued that the Awas Tingni (an Indigenous community, Miskito Coast, Nicaragua) had no title to the land, and the land was also part of a corridor where the government had set aside between lands claimed by other Indigenous groups, and the land belonged to the State (Wiersma, 2005). Thus, the government argued that Awas Tingni’s private property rights had not been violated by the State. Nevertheless, after examining the case and considering several legal arguments, the Court decided that Nicaragua violated the rights to judicial protection of the people, as stated in Article 25, in connection with Article 1, paragraphs 1 and 2 of the Convention. Second, the State also violated the group’s right to property, as protected by Article 21 of the American Convention. Finally, the Court demanded Nicaragua to pay damages to the Awas Tingni community and establish a system to demarcate communal lands that protected the peoples’ land and natural resources rights. This case showed that the Court has made a remarkable decision and became a jurisprudence for Indigenous worldwide in reclaiming their traditional or communal land property rights.

The ILO Conventions have also ruled and recognised collective rights to lands under the cultural rights. For instance, the ILO No. 169 has emphasised that Indigenous collective rights to lands cannot be separated from cultural rights. Article 13 notes that in applying the Convention “governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories” (ILO, 1989, p. 5). This provision shows that traditional land is a central aspect for Indigenous and tribal peoples’ cultural and spiritual existence. It also becomes a foundation for the group to maintain their historical, emotional, social and economic survival. Ancestral lands often include sacred sites, sacred cemeteries and places of worship, which is sine qua non for the transmission of their culture and beliefs to future generations. In other words, ancestral lands create and maintain the cultural identity of Indigenous peoples. Without access to their ancestral lands, Indigenous peoples are stripped of an element of their cultural identity. Article 25 of the UNDRIP notes that

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal sea and other resources and to uphold their responsibilities to future generations in this regard. (United Nations General Assembly, 2007)

Both the ILO Convention and the UNDRIP have emphasised that any relationship between spiritual and traditional lands where the people have been living for periods shall be protected, and it includes all religious practices and traditions associated with their traditional lands, territories and resources. Furthermore, the host states or other third parties shall respect these rights by promoting tolerance and eliminating discrimination action over the different cultures from the other segments of the national population under international human rights standards. Article 34 of UNDRIP asserts,

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. (United Nations General Assembly, 2007)

It is clear from the explanation above show that international law has provided several norms in protecting Indigenous people’s rights to culture which inseparable with their collective rights to land. The international instruments also require States parties’ obligation to recognise and protect the rights of tangible and ICH within their territory, and these rights cannot be separated from the lands where Indigenous or tribal peoples inhabit. Article 25 of UNDRIP emphasises that Indigenous peoples have right to maintain and express their cultural rights, particularly intangible rights, such as practicing religion, which relates to their lands and territories.

Considering the Indonesian context, it should be noted that while the government has not ratified the ILO169 or adopted the UNDRIP, they have ratified various other international human rights agreements such as ICCPR, ICESCR and UNESCO. It is crucial for the government to uphold and safeguard Indigenous culture, which includes their traditional knowledge, rituals, heritage sites, cultural identities of individuals or groups and the region where their ancestors and they presently live (Fahmi & Armia, 2022). This safeguard includes preventing any illegal or unjust usage of Indigenous territories, lands or resources by private enterprises, transnational corporations or the government. Consequently, international law has established a procedure to resolve any conflicts concerning Indigenous land rights utilised by the government or private businesses.

Conclusion

The survival of Indigenous peoples worldwide is largely dependent on their land rights, which are of paramount importance. In line with the constitution, Indonesia recognises the traditional and cultural rights of these communities. These rights are enshrined in various laws that cater to specific sectors, including Forestry, Agrarian, and Mining Laws. However, it should be noted that these laws only acknowledge private land ownership through certification. Contrary to the Western viewpoint, Indigenous communities consider their relationship with their land as more than just a question of possessing property. Instead, they perceive it as an inter-subjective cosmology entailing both human and non-human entities, both spiritual and cultural, that encompasses nature.

The safeguarding of Indigenous land property through the doctrine of cultural rights has been cited in multiple global protocols, including Article 27, paragraph 2 of UDHR, Article 15 of ICESCR and the UNESCO Declaration. In addition, in General Recommendation XXIII (51), the Elimination of Racial Discrimination Committee exhorts the recognition and preservation of Indigenous cultural identity, history, language and way of life. Furthermore, Article 13 of ILO 169 highlights the obligation of the government to honour the cultural traditions of Indigenous peoples and recognise their connection with their lands or territories. Similarly, UNDRIP asserts the right of Indigenous individuals to safeguard, preserve and promote their material cultural customs from the past, present and future.

Although Indonesia has not ratified either ILO 169 or UNDRIP, it has ratified several other international human rights treaties, including ICESCR, which was enacted into Law under Number 11 of 2005 on the Ratification of ICESCR. Thus, the author contends that implementing international cultural rights law is the most effective way to promote and safeguard the rights of Indigenous people to their land in Indonesia. Indigenous peoples uphold profound spiritual, cultural, social and economic bonds with their lands, territories and resources, which form the foundation for safeguarding their identity.