UN Committee's Concluding Observations on Economic Social and Cultural Rights in Papua

Between April 30 and May 1, 2014, the UN Committee on Economic Social and Cultural Rights (CESCR) reviewed Indonesia's implementation of the International Covenant on Economic Social and Cultural Rights (ICESCR) during its 52nd session. Indonesia acceded to the convention in February 2006 and was overdue to report. During the review the committee raised the situation in West Papua repeatedly with the committee, which is reflected in its concluding observations.

The meeting summary prepared by the media section of the UN Office in Geneva (UNOG) shows that the situation in Papua was frequently raised by the committee members.

 

For example:

A delegate commented on Government actions to provide education in the provinces of Papua and West Papua.  The Government understood the concerns and agreed it was true that the standard of education in those regions was inadequate.  Measures taken to improve the quality of education, especially for age groups around nine years old, included the provision of more teachers.  In 2012, 400 teachers were additionally assigned to schools in Papua.  In 2013, of the 1,960 teachers needed there were only 900 teachers.  In response the regional government recruited more short-term contract teachers.  More widely, high-school graduates were being encouraged to go into teaching as a profession.  The number of illiterate people in Papua was huge, but the Government aimed to get more than 20,000 students into education by 2017. 

It was inaccurate that 50 per cent of teachers did not report for school in Papua, a delegate said.  He went on to speak about incentives for teachers and ways of encouraging them to work in certain regions.

The delegation spoke about measures being taken to uphold the economic, social and cultural rights of the Masyarakat Hukum Adat (the traditional community) in Papua.  Recognition and protection of traditional entitlement to land by Masyarakat Hukum Adat was in principle guaranteed by the Constitution, which stipulated that “the State recognized and respected Masyarakat Hukum Adat along with their traditional customary rights as long as that remained in existence and in accordance with the societal development and the principles of the Unitary State of Indonesia and shall be regulated by law.”  The delegate referred to land rights, and compensation paid to traditional communities affected by the development of palm-oil plantations.  

The total population of Papua was approximately 3,225,000 million.  Today Papua had been developed from just nine regions into 42 regions and cities, located within two provinces (Papua and West Papua).  The standard of living of Papuans had dramatically improved from 1999 until 2013, with huge reductions in levels of poverty.  Poverty-reduction policies were centred on a welfare approach tied in with accelerated development.  The Government also took a social-political approach, a cultural approach and an economic approach, ensuring consultation with the Papuans in drafting policies for its “UP4B” programme.  Policies included reducing poverty through education, for instance by increasing the number of schools and teachers, and granting of scholarships for high school and tertiary-level education courses.  Improvements in the field of health  in Papua included building regional clinics as hubs for health programmes.  Infrastructure was being improved to reduce the isolation of some communities, along with the aim of building cooperation between cities in Papua. 

A delegate spoke about the culture of the Papuan people.  There were 280 ethnic groups and languages.  The population sizes of the ethnic groups varied between 1,000 to 10,000 and more.  Ethnic groups had different systems of kinship; they lived in the mountains or in coastal regions, and were spread throughout the country.  Since the granting of special autonomy in provinces of Papua those ethnic groups were represented in the regional parliament.  Members of the People’s Parliament of Papua were directly elected from and by the people of Papua.  Every ethnic community was represented, and women and religious leaders were included. 

A delegate explained that some forced evictions had taken place in West Papua, in order to construct a reservoir.  The land, which was owned by the regional Government, was being returned to its original purpose in order to combat flooding risk.  The land had been occupied by people who did not have permission or proof of ownership.  As part of its initiative the regional Government met the people concerned to explain its intentions so they could understand and agree with the development, although some people in the community did object.  He recalled that some 350 families were moved to low-rent apartments, while the rest returned to their regional hometowns or other places.  The land around the reservoir was currently functioning as a flood control, and being made into a recreational site.

On maternal mortality, an Expert regretted that every hour three to four women died during pregnancy or childbirth; a significant increase on 2007 figures.  The causes appeared to be poor infrastructure and a shortage of health facilities and workers.  What was being done to make health services more accessible to pregnant women, especially Papuans and rural women?

During the review, Committee member Ms. Cong, pointed out that,

according to the national statistics bureau, the number of people living in poverty in the provinces of Papua and West Papua was nearly three times the national average, asked what steps the Government was taking to address the issue and what their impact was. She also asked whether the programmes mentioned in paragraphs 168 and 169 of the initial report had a special focus on less developed parts of the country and particularly marginalized groups. Referring to data from the 2012 Demographic Health Survey, she asked why maternal mortality was on the rise and what measures the Government was planning to reverse the trend.

The sections of the concluding observations with very high relevance to the situation in Papua include:

Economic, social and cultural rights in remote areas

Acknowledging the challenges posed by the geographical configuration of the State party, the Committee is concerned that the minimum essential levels of economic, social and cultural rights are not guaranteed in remoteislands and areasin Papua and other parts of the country, primarily due to unavailability and poor quality of public services, including in education and health. Furthermore, the Committee expresses concern at the lack of access to remedies for violations of human rights and at the lack of comprehensive knowledge of the human rights situation in those areas(art. 2.2).
Recalling that the exercise of Covenant rights should not be conditional on, or determined by , the place of residence, and referring to Law No. 25/2009 on Public Service, the Commit tee calls on the State party to adopt a human rights-based approach in the implementation of the National Medium - Term Development Plan (RPJMN) for 2015-2019 and  to :
(a) Accelerate the delivery of quality public services in remote islands and areas in Papua and other parts of the country , by allocating the necessary human and financial resources , by monitoring that they reach the intended beneficiaries , and by clearly defining the responsibilities of the various levels of G overnment ;
(b) Ensure that judicial remedies and non-judicial institutions, such as the State party’s national human rights institutions , are accessible in those areas;
(c) Undertake to collect information on the situation of economic, social and cultural rights of ethnic groups in highlands, remote and border islands and areas, in collaboration with the national hu man rights institutions and civil society organizations .
The Committee refers to the State party to its statement on poverty and the Covenant, adopted on 4 May 2001 ( E/2002/22-E/C.12/2001/17, annex  vii ).

The Committee urges the State party to intensify its effort to combat corruption and related impunity and ensure that public affairs, in law and in practice, are conducted in a transparent manner. It also recommends that the State party raise awareness among politicians, members of Parliament and national and local Government officials of the economic and social costs of corruption, and among judges, prosecutors and the police of the need for strict enforcement of the law.
Discrimination was found to be an ongoing issue due to a lack of comprehensive legal provisions.
The Committee calls on the State party to strengthen the legislative protection against discrimination , including through the adoption of a comprehensive framework law, by (a)  prohibiting discrimination, including indirect discrimination, on all grounds; (b ) providing for the application of special measures to achieve equality , when necessary ; and ( c ) providing for penalties in the case of violation of the legislation as well as accessible remedies and reparation for victims . The Committee refers the State p arty to its general comment No.  20 ( 2009 ) on non-discrimination in economic, social and cultural rights.

Masyarakat Hukum Adat

The Committee is concerned at the absence of an effective legal protection framework of the rights of Masyarakat Hukum Adatdue to inconsistencies in relevant legislative provisions (arts.15 and2.1).

Referring to the State party’s statement that it would make use of relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, the Committee urges the State party to expedite the adoption of the draft law on the rights of Masyarakat Hukum Adat and ensure that it:

(a) Defines Masyarakat Hukum Adat and provides for the principle of self-identification, including the possibility to self-identify as indigenous peoples;
(b) Effectively guarantees their inalienable right to own, develop, control and use their customary lands and resources;
(c) Define strong mechanisms for ensuring the respect of their free, prior and informed consent on decisions affecting them and their resources, as well as adequate compensation and effective remedies in case of violation.

The Committee also recommends that the State party undertake to harmonize existing laws according to the new law on the rights of Masyarakat Hukum Adat and ratify the ILO Convention on Indigenous and Tribal Populations, 1989 (No. 169).

The Committee is concerned at provisions of recently adopted Law No.18/2013 on Prevention and Eradication of Forest Destruction as well as other laws in force in the State party which contravene the Decision 35/PUU-X/2012 of the Constitutional Court on the right of ownership of customary forests by Masyarakat Hukum Adat. It is further concerned that, while the State party has granted concessions on forested land to develop palm oil plantations, members of Masyarakat Hukum Adat have reportedly been arrested on the basis of the Law No.18/2013 (arts.15 and1.2).

The Committee recommends that, as a priority for the implementation of the Plan of Action of the Joint Agreement for the Acceleration in the Determination of Forest Regions, the State party:

(a) Amend all legislative provisions which are incompatible with the Constitution Court Decision 35/PUU-X/2012, including those contained in the Law 18/2013 on Prevention and Eradication of Forest Destruction, and take steps for the review of decisions against members of Masyarakat Hukum Adat based thereon; and
(b) Identify and demarcate customary lands and forests, resolve disputes thereon, in consultation with representatives of Masyarakat Hukum Adat and the national human rights institutions.

Languages

The Committee is concerned that a number of languages in the State party are at risk of disappearance, in spite of the measures taken by the Language Development Agency (art. 15).

The Committee recommends that the State party pursue efforts aimed at the preservation of endangered languages, including by promoti n g their use and by documenting them. In this regard, th e Committee recommends that the State party invest resources for the effective implementation of Ministry of Education and Culture Regulation 81 A of 2013 on Implementation of Curriculum for the inclusion of the teaching of local languages in the primary school curricula, especially as it pertains to endangered languages.

Displaced persons

The Committee recommends that the State party adop t targeted policies in the 2015- 2019 National Medium Term Development Plan for groups who experience multiple discriminations such as stateless persons and persons without identity documentation, religious communities and other persons displaced by conflicts and natural disasters, which include (a) the facilitation of the issuance of identity documents and birth and civil registration ; (b) the provision of services and assistance to displaced persons and returnees; and (c) the provision of the necessary mental health services in post-conflict areas

Violence against womenThe Committee calls on the State party to :
(a) Raise awareness among law enforcement officials and relevant professionals on the criminal nature of violence against women and for the public at large , including through a campaign of zero tolerance to such violence ;
(b) Strengthen the legislation on violence against women including by penalizing all forms of sexual violence;
(c) Take the necessary measures for ensuring access to remedies for victims, including in remote areas;
(d) Allocate the necessary financial resources at the provincial and district levels for the effective delivery of the Minimum Standards of Services, and expedite the establishment of shel ters for victims of violence;
(e) Improve the institutional coord ination and the monitoring of MS S implementation plans.

Mining and plantations sectors

The Committee expresses concern at violations of human rights in the mining and plantations sectors, including the right to livelihood, the right to food, the right to water, labour rights and cultural rights. It is also concerned that the free, prior and informed consent of affected communities is not always sought in these projects, including under Law 25/2007 on Investment. Moreover, even in cases where consultations of affected communities have taken place, their informed decisions have not been guaranteed.

The Committee is concerned at the lack of an adequate monitoring of the human rights and environmental impact of extractive projects during their implementation. In many cases, affected communities have not been afforded effective remedies and have, along with human rights defenders working on these cases, been subject to violence and persecution. Furthermore, it is concerned that these projects have not brought about tangible benefits for local communities (art. 1.2, 2.2,11).

The Committee calls on the State party to review legislation, regulations and practices in the mining and plantations sectors and:
(a) Guarantee legal assistance to communities during consultations on extractive projects affecting them and their resources with a view to ensuring their free, prior and informed consent;
(b) Ensure that license agreements are subject to monitoring of human rights and environmental impact during the implementation of extractive projects;
(c) Guarantee legal assistance to communities lodging complaints about allegations of human rights violations, thoroughly investigate all allegations of breach of license agreements, and revoke licenses, as appropriate;
(d) Ensure that tangible benefits and their distribution are not left solely to the voluntary policy of corporate social responsibilities of companies , but are also defined in license agreements, in the form of employment creation and improvement of public services for local communities, among others;
(e) Engage in constant dialogue with human rights defenders, protect them from acts of violence, intimidation and harassment, and thoroughly investigate all allegations of reprisals and abuse so as to bring perpetrators to justice.

Land tenure

The Committee expresses concern about the large number of land disputes and cases of land-grabbing in the State party. It is also concerned that regulations such as Presidential Regulation 65/2006 on Procurement of Land for Realizing Development for Public Interest render individuals and communities vulnerable to land-grabbingas only 34 per cent of land in the State party is certified. Similarly, the Committee is concerned that court decisions on land cases have been primarily made on the basis of the existence of titles. Furthermore, the Committee expresses concern at the prohibitive cost of titling that has accompanied the settlement of land disputes (arts. 1.2, 2.2 and11).

The Committee urges the State party to adopt a land policy which (a)  establishes an institution tasked with the oversight of settlement of land disputes; ( b ) promote s settlement approaches that tak e into account the fact that land titles are not always available; ( c) reviews relevant laws and regulations which make individuals and communities vulnerable to land-grabbing; (d ) facilitates the titling of land without prohibitive procedural costs ; (e) secures the involvement of the national human rights institutions and the civil society .

Health care system

The Committee is concerned that the State party’s health care system is not able to meet the demand for health services following the introduction of the Universal Health Insurance.The Committee is also concerned at the disparity in the availability and quality of health care services across provinces and regions in the State party, and is particularly concerned that, in some areas, the lack of HIV preventive and treatment services leads to the spread of HIV (art. 12).

The Committee calls on the State party to expand the capacity of the health care system and improve its quality especially in underserved regions, so as to ensure that the introduction of the Universal Health Insurance leads to the effective realization of the right to health. The Committee also urges the State party to ensure that HIV prevention and treatment are included in the minimum package provided by the primary health care system.

Maternal mortality

The Committee expresses concern at the increase in the maternal mortality rate in the State party due, among others, to insufficient sexual and reproductive health services as well as legal and cultural barriers to their access (art. 12).

The Committee calls on the State party to address disparities in the availability and quality of maternal health care services, including by putting into place pre-service training, in-service training, supervision and accreditation of facilities. The Committee also calls on the State party to ensure access to sexual and reproductive health services to unmarried women and teenagers as well as to married women without the consent of spouses.

Primary education, literacy rate and dropout rates among girls

The Committee is concerned that the lack of education services or their poor quality in some areas, including cases where teachers do not report to duty, leave the State party with a large number of illiterate persons. It is also concerned that measures taken by the State party, such as the deployment of less qualified teachers in remote areas,perpetuate the discriminatory situation. Moreover, the Committee is concerned at indirect costs borne by parents and athigher drop-out rates among girls(art. 13).

The Committee urges the State party to ensure quality and culturally adequate education, especially in remote areas , including by ensuring that resources invested and programmes such as the operational assistance for schools lead to effective enjoyment of the right to education . T he Committee also recommends that the State party ensure that primary education is free of charge and that it take measures, including awareness-raising, to address school dropout among girls. Moreover, the Committee recommends that the State party introduce, in consultation with local communities, education in local languages where appropriate. The Committee refers the State p arty to its general comment No.  11 (1999) on plans of action for primary education.