General Concepts and Principles of Human Rights in the International and Indonesian Context

Cekli S. Pratiwi

Law Faculty, University of Muhammadiyah Malang

A. Introduction

This chapter outlines important aspects of the concept of human rights in International and Indonesia context. First, it provides a description of human rights. Briefly reviewing the definitions of the terms “human rights” and “owners of human rights.” Then, it provides a description of the basic principles of human rights, along with a description of the state’s main human rights obligations including the obligation to respect, protect, and fulfill human rights for its citizen. Second, it sets forth international as well as Indonesia human rights law and its sources. Finally, it provides a description of International, and Indonesia’s human rights enforcement mechanisms.

Understanding general concepts and principles of human rights is important because international human rights law recently became part of Indonesia’s legal system, which began after the amendment of its 1945 Constitution.

B. A Description of Human Rights

In general, human rights are inherent rights, shared by everyone because of their “human dignity.” Human rights are not a legal gift but exist in every person by virtue of being human. This dignity puts people apart from other living creatures such as animals and plants. In the Holy Qur’an, it is said that Allah created man with perfect advantages over other creatures and in the best form. According to Hugo Grotius, “rights” is: “A moral equality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act.“ Thus human rights inherent in our nature as human beings make people have a special position, free to act, and free from all forms of oppression by other humans. 

Human rights are fundamental rights that need to be guaranteed by states through its law. Smith in his book, Textbook on International Human Rights, underlines that “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments” . The existence of human rights law is intended to provide legally enforceable assurance that everyone has human rights which must be respected, protected and fulfilled by the state. With these rights humans can make demands morally or lawfully, to have or to get something, or to have a certain way.  However, Grotius also emphasize that the word “rights” is equivalent to the law that obliges us to do what is proper, not only what is just because rights belongs to the substance of justice and all other virtues. Thus, state guarantees of human rights provide human power to enjoy their freedom, but also require humans to act fairly and correctly.

Protection of human rights means people can live without being discriminated against because of religion, ethnicity, race, color, sex, language, political belief, economic status, nationality or another status. The law provides protection and assurance for every human being, both individually and in groups, from all actions aimed at blocking, restraining, or violating fundamental freedoms or natural rights. International human rights law threatens sanctions for anyone including a state/ruler who violates such fundamental human rights. Human rights law is also intended to ensure the maximum enjoyment of human rights for everyone. 

According to Bogdandy, A., and Wolfrum, the rule of law encourages countries to perform their duties effectively in respect of human rights. The establishment of the United Nations and various instruments of international human rights law are efforts to strengthen the guarantee of human rights protection. Under the rule of law, a government abiding by its precepts will create laws, guarantees equality and enforce those laws through independent institutions with due regard to the standards and norms of human rights agreed upon and recognized by civilized countries in the world. Human rights are manifested in various forms both within the scope of international human rights law and domestic law. In international law, human rights are contained in treaties, international customs, general law principles or international court decisions. In domestic law, human rights are embodied in the state constitution, legislation or other related regulations. 

McCrudden says that the recognition that everyone has human dignity can be encountered in various instruments of international human rights law such as the United Nations (UN) Charter, the Universal Declaration of Human Rights (UDHR), and its two derivative covenants. Human dignity is also recognized in various constitutions of countries in the world such as the constitution of the United States, Germany, Cuba, Italy, Japan, etc. The constitutions that have been in effect in Indonesia since 1945 such as the 1949 Constitution of the Federal Republic of Indonesia, the 1950 Temporary Constitution of Indonesia, and the Amendment of 1945 Constitution of the Republic of Indonesia also states that every person has dignity as a human being. The affirmation that human rights are shared by every human is not due to the gift, inheritance, or mercy of the country’s ruler. Whether or not there are existing human rights law in a country, everyone in that country still has inherent human rights. Marek Piechowiak argues that human rights are the rights that every individual possesses because of his or her nature as a human being, so that human right is not created by a law. The existence of the human rights law will further strengthen the legitimacy and effective implementation of human rights. So, human rights exist simply because every person whether male or female is human being, according to Piechowiak: ”In the most general sense human rights are understood as rights which belong to any individual because of being human, independently of acts of law. On the existence of human rights, we state that every human being, simply because he or she is a human being has human rights.”

The problem of human rights arises because one group of human beings is oppressing, torturing, colonizing, enslaving the other. But, attention to human dignity issues was paid thousands of years ago by nations such as Greece, Babylon, Rome, and Britain, as well as was evident in various indigenous peoples. It is also present in the Qur’an, the Bible, and many other scriptures. There are several verses that affirm the meaning of human dignity and inherent dignity in the Qur’an. According to Hasyim Kamali, the most explicit recognition of human dignity in Islam is found in verse 70^th of Al-Isra saying that “We have bestowed dignity on the children of Adam… and conferred upon them special favors above the greater part of Our creation.”

 Resistance to the exploitation of human beings has been simultaneously with human existence itself, but it was understood in term of morality and religion, not as an enforceable legal right. The juridical resistance against human exploitation began; with the birth of Magna Carta in England in 1215. Magna Carta became more important when reinterpreted in later centuries, first in Britain, and subsequently in Britain’s North American colonies.  Other earlier public manifestations of human rights principles are in England’s Habeas Corpus Act, 1679 and Bill of Rights, 1689, the Declaration of Independence of the United States of America, 4 July 1776 was subsequently incorporated in the United States Constitution of 17 September 1787, the French Déclaration des droits de l’homme et du citoyen dates from 1789.   

Internationally, the development of human rights has grew rapidly after the emergence of the international community’s revulsion to the devastation caused by World War II. Awareness of the importance of recognition and protection of human rights became a basis and a purpose of the establishment of the UN in 1945. The UN Charter explicitly stated that the purpose for establishing the United Nations included encouraging respect for human rights internationally.

A new milestone in international human rights arrangements was reached when the UN General Assembly passed the UDHR on December 10, 1948. This Declaration is the first international document of human rights that has been agreed upon internationally. The Declaration has managed to combine the best values of socialist, liberal, and nationalist ideas that the international community can appropriate to protect people from barbaric actions, tyrannical rulers or other forms of oppression. Therefore, the UDHR is often referred to as the Common Standard of Achievement of Human Rights. After World War II, the recognition of the “right of people to self-determination,” later contained in two instruments (ICCPR and ICESCR) became a trigger and a means of legitimizing colonized countries struggle for their independence. 

In 1966 the General Assembly adopted international treaties that included human rights oversight and protection mechanisms, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR is complemented by the Optional Protocol on the ICCPR and the Second Optional Protocol to the ICCPR, aiming at the abolition of the Death Penalty. The ICESCR is complemented by the Optional Protocol to the ICESCR. The three main instruments and the above-mentioned preferred protocols are known as “the International Bill of Human Rights”. 

In examining the material content of international human rights law, there are fundamental principles that must be understood for protecting human rights. Such principles will be described in the following sections. The formulation of the main articles contained in the international human rights law will be described in the next section. International human rights treaties were ratified by an increasing number of states. Eventually they became part of domestic law in many countries, one of which is Indonesia. 

In Indonesia, the awareness of providing guarantees of human rights protection can be found in several articles in the 1945 Constitution, the 1949 of Republic Federal of Indonesia Constitution, and the 1950 Temporary Constitution. The guarantee of human rights protection in Indonesia was strengthened after the amendment of the 1945 Constitution of the Republic of Indonesia by incorporating Chapter XA concerning human rights. In 1999, three years before the amendment of the 1945 Constitution, Indonesia passed Law Number 39 the Year 1999 on Human Rights with content like those contained in international human rights law. International and national human rights laws provide that the State has an obligation to guarantee, respect, protect and fulfill human rights for every person (both individual citizens and foreign citizens) under its jurisdiction and in the territory of its authority. In addition, human rights laws also prohibit the State from committing acts of human rights violations.

In overview, human rights are inherent rights owned by everyone because they have inherent dignity as a human being. Everyone has human rights by interpretation of any human value due to their citizenship status, national origin, ethnicity, language, gender, or physical abilities. Human rights can be enforced by the existence of customs, treaties, general principles of international law and other sources of international law as well as applicable domestic law. 

C. Basic Principles of Human Rights

As explained in the introduction, human rights reflect the universal and fundamental human dignity inherent in every human being. The protection of human rights must extend to everyone without discrimination. Donnelly emphasizes that human rights are equal, inalienable, and universal, even in cross-culture perspective because according to contemporary norms, human rights values respect individual rights and equality that have been generally accepted by international communities. 

Inherent and fundamental human rights also cannot be revoked or ignored by the state. Restrictions on human rights can only be carried out under strict conditions and with lawful procedural arrangements. The protection of one human right is often linked with and depends on the fulfillment of other rights. The fulfillment of one human right will support the fulfillment of other human rights. Similarly, the obstacles to the protection of one human right will hamper protection of other human rights. 

This section elaborates more on the basic human rights principles extracted from international human rights law. Some of these basic human rights principles will be described clearly in the following: 

1. The principle that human rights are indivisible, interrelated and interdependent

Human rights are interrelated and interdependent. Both civil and political rights and economic, social, and cultural rights are important and indivisible. Violation of one human right may affect and make unfulfilled other human rights (interrelated). For example, violations of the right to freedom of religion may result in a violation of the right to education, the right to health care, or other rights. The fulfillment of one right may depend on the fulfillment of other rights (interdependence). For example, the fulfillment of the right to health may depend on the fulfillment of the right to work. People who have jobs with a decent income will be able to enjoy the right to adequate health services. 

2. Universal and Inalienable Principles

The universality principle implies that human rights should be enjoyed by everyone equally, regardless of any differences including cultural differences. The application of local culture cannot justify human rights violations or discrimination. The principle of the universality is often contrasted with the principle of particularity. Adherents of the particularity of human rights believe that the application of human rights in one country can be different from their application in other countries, influenced by the social and cultural conditions of the local community.  

Today the universal principle of human rights is more accepted by the international community than the principle of the particularity of human rights. The 1948 UDHR is a declaration of intent which has been generally referred to as the guideline in drawing up international agreements, resolutions, and declarations in the field of human rights. For example, in 1993 the World Conference in Vienna on Human Rights agreed that the State’s obligation in human rights is an obligation to promote, protect all human rights and fundamental freedoms regardless of its political, economic and cultural system. All UN member states have ratified such agreements at least once, and 80% have ratified four or more international human rights treaties, illustrating that States are concerned with committing themselves to human rights obligations and thus demonstrating the universality of human rights.

 The principle of inalienability means that States are not allowed to repeal every individual’s human rights except in very specific circumstances and under fair procedures. Human rights are defined as the rights inherent in human dignity. In Indonesia, a society founded on a belief in God, human rights are a gift from God Almighty. Since human rights are not a gift or inheritance or mercy of the State, the state is not allowed to revoke them (i.e. they are inalienable) or arbitrarily restrict human rights.  For example, a person may be prevented from the right to free movement if a person has been found guilty of a criminal offense based on a judge’s verdict.

3. The principle of equality and non-discrimination

According to Theodorson & Theodorson, discrimination is defined as unbalanced treatment of individuals, or groups, based on categorical or distinctive attributes as race, nationality, religion or membership of social classes. The principle of non-discrimination is important and adopted in almost all international human rights treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. This principle applies to everyone and prohibits everyone to discriminate based on sex, race, color, religion, etc. 

The principle of non-discrimination relates to the principle of equality as defined in Article 1,  of the UDHR: “All human beings are born free and equal in dignity and rights.” The use of the term “all human beings” means that “everyone” has the same rights, or in other words, no one may be denied his or her rights or be treated differently according to, for example, race, color, sex, language, religion, politics, nationality, or origin, level of wealth, birth or another status. The use of the term that denotes the principle of universality is also found in several other human rights conventions such as the ICCPR and the ICESCR.  

The principle of non-discrimination is also recognized in various human rights instruments at the regional level. For example, it is found in almost every chapter of the 1969 American Convention on Human Rights with a total of 43 articles using the term “every person”, “no one”, “everyone”, “anyone” interchangeably. More interesting in one of the provisions of Art. 19 is specifically called the term “every minor child”, shows explicitly that the rights of young children are part of the American family, society, and States in it. Furthermore, in the African Charter on Human and People’s Rights, there are 51 articles use slightly different terms that are “every individual” and “all peoples”. Similarly, in the European region, the European Social Charter passed in Turin on October 18, 1961 and effective since February 26, 1965 on Paragraph III says “The Governments signatory here to, being Members of the Council of Europe….Considering that the enjoyment of social rights should be secured without discrimination on the grounds of race, color, sex, religion, political opinion, national extraction or social origin.”

Although the European Human Rights Act does not explicitly mention the word “Human Rights” but uses the narrower term “Social Rights”, it is clear from the language of the act that that discrimination on any grounds is prohibited. This means that everyone should be treated equally by governments that signed the Act and becomes a member of the European Union.

The Preamble of the African Charter on Human and People Rights, paragraph III states that by observing the importance of unity in Africa freedom, equality, justice, recognition are the most important objectives to achieve the legitimacy of the aspirations of all Africans. Thus, the recognition of the principle of equality in the protection of human rights in Africa is also considered very important to lead to a more solid unity of the people of Africa “Considering the Charter of the Organization of Africa Unity, which dispute that freedom, equality, justice, and dignity are essential objectives for achievement of the legitimate aspiration of the African peoples”.

Then what about an Islamic State like Saudi Arabia? Does human right reveal a different face with respect to the principle of equality? The Arab Charter on Human Rights adopted in Cairo on 15 September 1994 by the League of Arab States, the old version, in Article 2 says: “Each State Party to the present Charter undertakes to ensure to all individuals within its territory and subject to its Jurisdiction the right to enjoy all the rights and freedoms recognized herein, without any distinction on grounds of race, color, sex, language, religion, political opinion, national or social origin, property, birth or other status and without any discrimination between men and women.”

The Arab Charter on Human Rights recognizes the principle of equality of every human being as part of the relentless effort in achieving the principles already existing in Islamic Law (Shari’ah) including coexistence with the different religion. While the principle of “non-discrimination” is explicitly stated in Part II of Article 2 even explicitly prohibiting discrimination against men and women. This charter entered in force in March 2008 and has been accepted by ten Arab states:  Algeria, Bahrain, Jordan, Libya, Palestine, Qatar, Saudi Arabia, Syria, the United Arab Emirates, and Yemen. Unfortunately, this Charter has been criticized by experts, NGO’s, academics and others since it has lack of the lack of any human rights enforcement mechanism compared to the international human rights enforcement mechanism. On May 23, 2004, a new version of this Charter was presented to and adopted in the Arab Summit in Tunisia. In Article 1 and 3 of the new versions consist the confirmation of equality between men and women in the Arab World. 

Other Islamic countries have also accepted and applied the principles of democracy, one of which there is recognition and respect for human rights, as quoted by Noah Feldman, stating that “Currently, the constitution of Iraq and Afghanistan do guarantee equality for men and women”.

The above description shows that both in countries where Muslims are as a minority as in the United States, and in  several Africa and Europe regions,  rights are guaranteed in the applicable human rights laws of that country, as well as in countries where Muslim are a majority, because based on Article 2 of the ICCPR, human rights do not consider differences in religion, race, color, sex, language, politics, nationality or origin, level of wealth, and birth.

Is the principle of non-discrimination recognized in the human rights law of Indonesia? The principle of non-discrimination is also an important principle in the protection of human rights in Indonesia as regulated in Article 28I paragraph 2 of the 1945 Constitution of the Republic of Indonesia which states that “Every person shall have the right to be free from discriminatory treatment on any basis and entitled to protection against discriminatory treatment”.

The prohibition of discrimination in Indonesia is specifically regulated through Law Number 39 Year 1999 about Human Rights and in 2008 Indonesia passed Law Number 40 Year 2008 on the Elimination of Race and Ethnic Discrimination. Both Laws explains that discriminatory acts are categorized as criminal offenses and are subject to substantial penalties. However, in practice there are still many discriminatory acts occurring in Indonesia whether based on race, ethnicity, religion, economic level, or others. It is therefore necessary to raise public awareness to respect differences and encourage governments to issue policies that give everyone the opportunity to be treated as equals and strict law enforcement on those who violate them.

4. State obligations on human rights

Tomuschat in his book Human Rights: Between Idealism and Realism illustrates that the history of human rights cannot be separated from the emergence of the history of the formation of the modern state itself. Some of the underlying reasons are that first, the state in its modern form has been accepted as an appropriate form of organization to promote human rights for the benefit of its people as a source of intercourse in the face of an endless war among the plural society. The war is also called a weapon that threatens the lives and civilization of citizens of a country. Therefore, human rights have played its role in dialogue the differences. Secondly, the state is also recognized as the guarantor of human rights which is institutionally given the power to secure the existence, freedom and wealth of its citizens. At the same time, history has illustrated that the agents of the state have the power to violate the rights of citizens.

The reduction or restriction of human rights is only permitted on (1) certain rights and under certain circumstances (such as public emergency), (2) by certain measures, must be expressly stated in law, and (3) not intended to discriminate against other parties. Thus, the existence of various laws that regulate human rights is not a proof that human rights is a State mercy to its citizens. Laws only affirm or reinforce that human rights are real. Therefore, the 1945 Constitution of the Republic of Indonesia explicitly states that the guarantee of human rights is a responsibility enforceable by the State.

The Office of the UN High Commissioner for Human Rights explained that in respect of international human rights law, States have three main responsibilities namely (1) to respect, (2) to protect, and (3) to fulfill human rights of their people. The obligation to respect means that states should refrain from interfering with or limiting the fulfillment of human rights. The obligation to protect obliges States to protect individuals and groups against human rights violations. The obligation to fulfill means the State must take positive action to facilitate the fulfillment of human rights. In Indonesia Article 28I paragraph 4 of the 1945 Constitution of the Republic of Indonesia and Article 8 of Law Number 39 Year 1999 on Human Rights says “Protection, promotion, enforcement and fulfillment of human rights are the responsibility of the state, especially the government”.

The obligations of States in relation to economic, social and cultural rights as set out in Article 2 (1) of the ICESCR requires the State to “take steps” through the provision of existing resources to achieve social realization and the right culture and culture that is maximal and progressive. It also requires States to ensure the enjoyment of economic, social and cultural rights without discrimination and to ensure men and women can enjoy these rights. Specific actions are to be taken by the State, such as composing or enacting laws and promoting these rights in public policy. 

The obligation to achieve the full realization progressively as stated in the Convention on the Rights of the Child Article 4 (2) is a central aspect of the State’s obligations. The point is the obligation to take appropriate action toward full realization of economic, social and cultural rights to their available resources. Reference to ‘available resources’ reflects that the realization of these rights can be hampered by a lack of resources and can be achieved only within a certain timeframe. This means that the State’s compliance with its obligation to take appropriate action is judged on its financial and other resources available. Many national constitutions also allow for the progressive realization of some economic, social and cultural rights. 

Although States can case progressively into some human rights, they must also take immediate action regardless of the resources they have in five areas: (1) the elimination of discrimination; (2) economic, social and cultural rights (these are not subject to progressive realization); (3) the obligation to ‘take steps’; (4) non-retrogressive measures; and (5) minimum core obligations. The Limburg Principle on the ICESCR further clarifies and affirms what responsibilities the participating countries of the covenant must fulfill. The elimination of discrimination means States have an obligation to fulfill the citizens’ social, economic and cultural rights equally without any discrimination. The fulfillment of the right to work must necessarily open equal opportunities to all men, women, disability groups, regardless of race, religion, race, gender, political belief etc. The obligation to take steps mean that States parties shall have the obligation to take appropriate measures to achieve the objectives referred to in the Covenant including the adoption of various regulations or related policies with the maximum of its available resources. The obligation of non-retrogressive measures means that Progressive realization requires the state’s active action through the effective use of resources. This progressive achievement obligation is not affected by the enormous increase in the resource level of a country’s economic development. Thus, the state must prioritize and ensure the fulfillment of minimum basic rights for all people. The minimum core obligations of the States are the obligation to respect, to protect, and to fulfill the rights guaranteed in the ICESCR.

The aim of ICESCR is none other than to protect human rights so that people can live as fully human, free, secure, protected and healthy. The right to life as the ultimate right can never be achieved unless all the basic rights such as “the right to work, to eat, home, health, education, and culture” can be fulfilled and are available to everyone. Along with this fundamental objective, an international human rights instrument was established to provide both individuals and groups with the right to economic, social and cultural rights contained in the CESCR 1966. The ICESCR outlines the recognition of the right to work, the right to education, the right to a decent life, the right to a healthy environment, the right to cultural development, etc. 

Compared with civil and political rights contained in the CCPR, often economic, social and cultural rights are second-generation rights where compliance cannot be enforced, cannot be prosecuted (non-justiciable), and can only be met by the state gradually and are fulfilled progressively. However, along with the recognition of the global human rights law system, which is marked by the acceptance of the UDHR, countries in the world repeatedly asserted at the World Conference on Human Rights in 1993 by stating that both human rights fields the ICCPR and the ICESCR are just as important. UN General Assembly Resolution Number 32/130 of December 1977 says:

(a) All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion, and protection of both civil and political, and economic, social and cultural rights; (b) The full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible; the achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of  economic   and  social development, as recognized by the Proclamation of Teheran of 1968.

As an example, the General Comment of the Committee on Economic, Social and Cultural Rights Number 15, expressly provides interpretation of Article 11 and Article 12 of the ICESCR, saying that the right to water is something that cannot be separated from other human rights. In its argument, this Committee shows that many other human rights such as the right to life cannot be obtained by human beings if they cannot enjoy the right to water. Thus, both civil-political rights as well as economic, social, and cultural rights are interdependent, and both require equal attention from the state both in terms of their application, socialization, and protection. This is to remember that the fulfillment of civil and political rights alone without the fulfillment of one’s economic, social and cultural rights is highly unlikely. Therefore, realizing the fulfillment of economic, social and cultural rights needs support either from the national or international policy. Thus, any form of denial of economic, social and cultural rights backed by an opinion which still places economic, social and cultural rights as unreal right, that does not require state involvement, or a right that can be gradually fulfilled, are enforced. The ICESCR has been adopted by the UN General Assembly through Resolution 2200 A (XXI) in December 1966 and has entered into force since 3 January 1976. At present, the number of acceptances of the ICESCR being 169 States ratification, the present Covenant has undergone a change of character which was originally only a multilateral agreement, now turned into an international customary law, which binds each country with or without ratification.

D. International human rights law and its instruments.

International human rights law has developed rapidly since the founding of the United Nations. International human rights law consists of international treaties, international customs, declarations, general legal principles, and guidelines. The international agreement is made by States and carries various names such as charter, covenant, convention, protocol. Examples of international treaties on human rights are ICCPR 1966, ICESCR 1966. International customs are common practices accepted as law by states. An example of international custom is the UDHR.

Although the declaration itself is not binding, the articles in the declaration have status as international custom. Other sources of international human rights law such as principles, guidelines or recommendations are not binding in nature, but this shows the consensus of the international community to give the content political or soft law status. 

1. The UDHR

The UDHR was adopted by the General Assembly in Resolution 217 A (III) of 10 December 1948. The UDHR adopted by 48 states agreed, 8 abstained countries (Belarus, Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukraine, Soviet Union, and Yugoslavia), and none of the states voted against it. 

The UDHR is a common standard of achievement of human rights that is to be protected for all people and all nations. Currently, it has been translated in over 500 languages. 

Article 1 of the UDHR provides “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. The provision teaches the spirit of kinship, in which human beings are part of the members of society that are interconnected with each other rather than competing and harming one another. 

This article is the basic philosophy defining the basic assumption of the UDHR that the right to liberty and equality is a right derived by humans from birth and that they cannot be deprived of it; and since man is a rational and moral creature, he is different from other beings on earth, and therefore entitled to obtain certain rights and freedoms not enjoyed by other beings.

Article 2 of the UDHR, a basic principle of equality and non-discrimination, says: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made based on the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non- self-governing or under any other limitation of sovereignty.” 

Article 3 of the UDHR, says “Everyone has the right to life, liberty and security of person.” This article constitutes the first milestone of the Declaration declaring the right to life, liberty and security of a person an essential right to the fulfillment of other rights. 

Article 4 to 21 the UDHR mentioned about the principle and guarantee of civil and political rights, which are further elaborated in the ICCPR. The provisions of Article 22 to 27 of the UDHR are a guarantee on socio-economic and cultural rights, which are further elaborated in the ICESCR

Article 28 to 30 of the UDHR is a formulation of the rights and obligations of the international community to maintain public order with the exercise of rights and freedoms in accordance with the law. Article 28 of the UDHR says: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

Article 29 of the UDHR says: 

1. Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. 

Article 30 of the UDHR, says: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” 

The UDHR contains 30 Articles. Operationally, it can be divided into 3 groups of articles, see Table.1 

Table.1. The Contains of the UDHR 1948

No.	Group	Content
1	Article 1 to 2, 28, 29, and 30	The principle of equality (Article 1), the principle of non-discrimination (Article 2), the concept of State obligations (Article 28), individual obligations (Article 29 (1)), permissible restrictions (Article 29 (2)) as well as a prohibition on anyone violating or destroying the rights and freedoms guaranteed in this declaration (Article 30).
2	Article 4 to 21	Specifying civil and political rights that elaborated by the ICCPR
3	Article 22 to 27	Specifying economic, social and cultural rights that elaborated by the ICESCR

2. The ICCPR.

The ICCPR was established and declared open for signature, ratified and approved by General Assembly resolution 2200 A (XXI) on December 16, 1966. The Covenant is ratified by Indonesia through the Law Number 12 the Year 2005 on the ratification of the ICCPR. 

The ICCPR contains 53 Articles and divided into 6 parts as can be seen in Table 2. 

Table.2. The Contains of the ICCPR

No.	Group	Content
1	Part I to III(Art. 1 to 27)	(Art 1 to 5) prohibit discrimination, provide for gender equality, and set restrictions and regulate rights such as the right to life (Art.6), prohibit torture and inhuman punishment (Art. 7 and 10), prohibit slavery (Art.8), secure the right to liberty and security including the prohibition of incarceration due to non-repayment (Art. 9 and 11), protect freedom of movement (Art. 12 and 13), the right to a fair trial process including the prohibition of the enactment of the Act (Art. 14 and 15), the recognition of one’s legal status (Art. 16 and 17), the right to freedom of thought, choosing religion and belief (Art. 18), freedom of opinion and expression including the prohibition of propaganda and sedition (Art. 19 and 20) , freedom of association, assembly, and trade (Art. 21 and 22), right to marry, form famili0es and have offspring (Art. 23 and 24), political rights (Art. 25), equality right (Art. 26), and rights as a minority group (Art. 27)
2	Part IV to VI(Article 28 to 53)	contain the monitoring mechanisms and principles of interpretation. Among the above mentioned civil and political rights arrangements, is the prohibition of torture, slavery and the application of the law on a retroactive basis are absolute. Other rights allow for reservations, restrictions or deductions. This is as regulated in Article 4 of the ICCPR.

3. The ICESCR

The ICESCR was established and declared open for signature, ratified and approved by General Assembly resolution 2200 A (XXI) on December 16, 1966. 

The Covenant is ratified by Indonesia through the Law Number 11 the Year 2005 on the ratification of ICESCR. 

Table.3. The Contains of the ICESCR

No.	Group	Content
1	Part I to II	(Art. 1 to 5) deal with the right to self-determination (Art.1), the obligation of the states towards economic, social and cultural rights (Art. 2 to 4) and the limitation of restriction (Art. 5).
2	Part III	(Art. 6 to15) deal with the right to work (Art. 6); the right to enjoy just and favorable of working condition (Art. 7); the right to form and participate in labor organizations (Art. 8); the right to social security, including social insurance, especially for mothers, children and young people (Art. 9 and 10); the right to a decent living condition (Art. 11); the right to enjoy high standards of physical and mental health (Art. 12), the right to education (Art. 13 and 14); the right to participate in cultural life (Art. 15).
3	Part Iv and V	(Art. 16 to 31) spell out the responsibility of the state’s parties.

E. Human rights regulations in Indonesia

The government of Indonesia becomes more concerned with human rights issues at the end of the New Order regime, marked by the establishment of the National Commission on Human Rights (Komnas HAM) in 1993. At the beginning of the reform period, the People’s Consultative Assembly (MPR) issued the Decree Number XVII / MPR / 1998 on Human Rights, which has been described in Law Number 39 the Year 1999 on Human Rights and Law Number 26 the Year 2000 on Human Rights Courts. The expansion of human rights guarantees through the articles of the 1945 Constitution, particularly the outcome of the Second Amendment, is an improvement in establishing the legal foundation of the state to strengthen the recognition of human rights. There is also various regulations in the field of human rights that have been adopted in Indonesia (see Table.3).

With the ratification of various international conventions in the field of human rights such as ICCPR through Law Number 12 Year 2005 and the ICESCR through Law Number 11 the Year 2005, and other conventions, the national human rights law strengthened the position of citizens in relation to the state. 

1. Human rights under the 1945 Constitution and the 1999 Human Rights Law.

The formulation of human rights in the 1945 Constitution – after the amendment is complete compared to the formulation of Human Rights in the old 1945 Constitution – before the amendment because the 1945 Constitution – after the amendment provides additional chapter that is Chapter XA concerning human rights that elaborated into several provisions from Article 28A to Article 28J. The articles are adopted from the UDHR, the ICCPR, and the ICESCR. Although the two international covenants were recently ratified by the Government of Indonesia in 2005, Indonesia has submitted itself to the binding force of the two covenants since 1999 when the Law Number 39 the Year 1999 on Human Rights was passed. Then, the formulation of human rights was reinforced and mentioned in the constitution. 

The Indonesian human right law can be divided into 3 parts:

1. Civil rights that are non-derogable 

Non-derogable rights are defined in Article 28I of the 1945 Constitution or Article 4 of the Human Rights Law stating that: “The right to life, the right not to be tortured, the right of freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of retroactive law are human rights that cannot be reduced under any circumstances.”

There are at least seven types of civil rights explicitly stated as non-derogable rights or rights that cannot be mitigated under any circumstances, namely:

1. the right to life;
2. the right not to be tortured;
3. the right of freedom of thought and conscience;
4. religious rights;
5. the right not to be enslaved;
6. right to be recognized as a person before the law;
7. the right not to be prosecuted based on retroactive law.

This concept is like that provided for in Article 4 of the ICCPR which states that: “The reduction of the obligations of articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 is in no way justifiable under this provision.”

The interpretation of the formulation of Article 28I of the 1945 Constitution of Republic of Indonesia is often associated with the provisions of Article 28J. Although Article 28I has explicitly mentioned non-derogable rights under any circumstances, but in the practice of law enforcement in Indonesia, these rights are still defined as rights that may be restricted by the state to the extent that such restrictions are in accordance with the provisions of Article 28J paragraph 2, saying: “In exercising their rights and freedoms, each person shall be subject to the restrictions laid down by law with the sole intent of securing the recognition and respect of the rights and freedoms of others and to satisfy fair demands in accordance with moral judgment, religious values, security, and public order in a democratic society. Furthermore, it is also mentioned in Article 70 of the Human Rights Law.”

According to Article 28J paragraph 2 of the 1945 Constitution of Republic of Indonesia:

1. In exercising their rights and freedoms everyone is subject to the restrictions set forth in the law. This means that the state passed a law aimed at limiting the rights of the citizens. Provided that the Act is made in legitimate ways by the agency that has the authority to make it. According to the Indonesian constitution, the institution which has the authority to enact the law is the People’s Legislative Assembly (DPR) with the approval of the President (Art. 5 jo Art. 20 of the 1945 Constitution).
2. Restrictions on such rights are aimed at ensuring and protecting the respect of the rights of others and meeting fair demands.
3. Such restrictions must be based on moral considerations, public order, public welfare in a democratic society. The 1945 Constitution also incorporates religious values ​​as one of the considerations that can be used in limiting one’s rights. Article 70 of the Human Rights Law does not include religious values ​​as an element of restriction but incorporates aspects of national security as part of considerations in limiting one’s rights.
4. The limitation of such rights should not contain discrimination solely based on race, color, sex, language, religion or social origin. This is also affirmed in Article 4 Paragraph (1) of the ICCPR and Article 29 paragraph 3 of the UDHR and the 28I Paragraph (2) of the 1945 Constitution of 1945 jo Art. 3 Paragraph (3) of the human rights law.

2. Other civil and political rights and their problem of limitation. 

Other civil and political rights are also guaranteed by the 1945 Constitution of Republic of Indonesia that are the right to a fair hearing and an open trial by an independent and impartial tribunal and the right to be presumed innocent until proven guilty (Art. 28D (1)), freedom of arbitrary intervention of personal freedom, family, home or correspondence (Art. 28G and Art. 28H (1)), freedom to move and reside (Art. 28H (1)), the freedom of opinion and expression (Art. 28E (1 and 2)), the right to peaceful assembly (Art. 28E (3)), and the right to participate in the government of his country and equal access to public services (Art. 28D (3)). Those rights are also guaranteed in the Law Number 39 the Year 1999 concerning Human Rights. Since those rights are defined as derogable rights, such restrictions must be based on moral considerations, religious values, security, public order in a democratic society as mentioned in Article 28J of the 1945 Constitution of Republic of Indonesia and Article 70 of The Law Number 39 the Year 1999 concerning Human Rights. 

However, by using religious values as the reference of restriction is debatable because the government tends to protect majority religion above minority one. In the case of blasphemy or limitation of building the house of worship, the government used primarily consideration from the sixth recognized religions values to issue decrees of the president, minister, other local governments policies to make some restrictions.

3. Economic, Social and Cultural Rights.

The economic, social and cultural rights are guaranteed in the 1945 Constitution of The Republic of Indonesia that is the right of business (Art. 28G (2)), the right to own property (Art. 28H (14)), the right to social security (Art. 28H (3)), the right to work and the right to earn the same income on the same job (Art. 28D (2)), the right to rest and sightseeing (Art. 28H (1)), the right to get an adequate standard of living, health and life (Art. 28H (1)), the right to education (Art. 28C (1)), the right to participate in cultural life (Art.28I (3) and Art. 28C (2)), the right to information (Art. 28F). Those rights are also guaranteed at the Law Number 39 the Year 1999 concerning Human Rights that will be mentioned and can be seen in Table 4.

Table 4. Distribution of Human Rights Formulation in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, ICESCR Covenant, 1945 Constitution of 1945, Human Rights Law

No	Type of Rights guaranteed	UDHR	ICCPR	ICESCR	Indonesia Constitution 1945	HR Law
1	Non-discriminatory treatment	2	20, 27		28I (1), (2)	3 (3)
2	The right to life, freedom and security	3	6, 9		28A, 28I (1)	3 (2), 9
3	Freedom from slavery and bondage	4	8		28I (1)	4, 20 (1), (2)
4	Freedom from torture and cruel, inhuman or degrading treatment or punishment	5	7		28G (1), 28I (1)	4, 33, 34
5	The right to be recognized personally before the law everywhere	6, 7	16, 26		28I (1)	4, 5
6	The right to an effective remedy	8	9
7	Freedom from arrest, arbitrary detention or alienation	9	9, 10		28D (1)	4, 5
8	The right to a fair hearing and an open trial by an independent and impartial tribunal	10	14		28D (1)	17
9	The right to be presumed innocent until proven guilty	11	15		28D (1)	17, 18
10	Freedom from arbitrary intervention of personal freedom, family, home or correspondence	12	17		28G, 28H (1)	29, 31, 32
11	Freedom to move and reside	13	12		28H (1)	27, 40
12	Right of business	14	13		28G (2)	28
13	The right to citizenship	15	13, 24		28D (4)	26
14	The right to marry and establish a family	16	23, 24		28B	10
15	Right to own property	17	11		28H (4)	19, 36, 37
16	Freedom of thought, belief and religions	18	18		28 E (1,2)	22 (1), (2)
17	Freedom of opinion and expression	19	19		28E (3)	23, 24, 25, 44
18	The right to peaceful assembly and assembly	20	21, 22	8	28E (3)	16, 39
19	The right to participate in the government of his country and equal access to public services.	21	25		28D (3)	43, 44
20	Right to social security	22		9, 10	28H (3)	41
21	The right to work and the right to earn the same income on the same job	23		6,7	28D (2)	38
22	Right to rest and sightseeing	24		10	28H (1)	9 (2)
23	Right to get an adequate standard of living, health and life	25		11, 12	28H (1)	40, 42
24	Right to education	26		13, 14	28C (1)	12, 13
25	The right to participate in cultural life	27		15	28I (3), 28C (2)	15
26	Right to get information				28F	14
27	Women’s Rights					45, 46, 47, 48, 49, 50, 51
28	Rights of the Child					52, 53, 54, 55, 56, 57, 58 to 66.

Sources: The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, ICESCR Covenant, 1945 Constitution of 1945, Human Rights Law

From Table 4, it shows that Indonesia as the State member of the ICCPR has adopted all provisions of the ICCPR into the 1945 of Indonesia Constitution of Republic Indonesia as well as in the Human Rights Law of Indonesia, except the right to an effective remedy that provides on Art. 8 of the UDHR or Art. 9 of the ICCPR. However, there are some provisions that provided on Indonesian Law but not at the international bill of human rights. The first is the right to get information. This right is provided on Article 28F of the 1945 Constitution as well as Art. 14 of Human Rights Law, but not mentioned on the UDHR or the ICCPR since the right to get information is part of freedom of opinion and expression that provided on Art. 19 of the UDHR and the ICCPR.  Second, both women’s rights and the rights of the child are not found in the UDHR or the ICCPR, but more elaborated on the Human Rights Law of Indonesia because at international level these two particular issues have been regulated separately on the International Convention on Elimination of All Form Discrimination Against Women (CEDAW) and the Convention on the Right of the Child (CRC) that both of them have been ratified by Indonesia. 

Table 5. Various regulations in the field of human rights that have been adopted in Indonesia 

The protected group	Instruments
General	Law Number 8 Year 1998 on the Ratification of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).Law No. 9 of 1998 on Freedom of expressionLaw No. 8 of 1999 on consumer rights and protection.Law No. 26/1999 on the revocation of subsidiary law which is considered to restrict the right of opinion.Law Number 39 Year 1999 on Human Rights.Law No. 40 of 1999 on the press, rights and obligations.Act No. 26 of Year 2000 on the Human Rights Court.Law No. 11 Year 2005 on the Ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR)Law Number 12 Year 2005 on Ratification of International Covenant on Civil and Political Rights (ICCPR).Law No. 15 of 2009 on Ratification of Protocol against the Smuggling of Migrants by Land, Sea and Air, Completing the United Nations Convention Against Transnational Organized Crime.Law Number 14 Year 2008 on the Openness of Public InformationLaw Number 31 Year 2014 About Amendment to Law no. 13 of 2006 Concerning the Protection of Witnesses and Victims.Law Number 12 Year 2006 regarding Citizenship of the Republic of Indonesia.Law Number 5 Year 2010 concerning Amendment to Law Number 22 Year 2002 on Grasi.Law Number 21 Year 1997 concerning the Eradication of Crime of Trafficking in Persons Law Number 23 Year 2006 regarding Population Administration.Law Number 14 Year 2009 Concerning Ratification of Protocols to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime.
Women	Law Number 7 of 1984 on the Ratification of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)Law Number 23 Year 2004 on the Elimination of Domestic Violence
Child	Law Number 4 Year 1979 regarding Child Welfare.Law No. 1 of 2000 on Ratification of ILO Convention No. 182 On Violations and Immediate Action on the Elimination of the Worst Forms of Child Labor (ICRMW).Law of the Republic of Indonesia Number 20 Year 1999 Concerning Ratification of ILO Convention Number 138 Regarding Minimum Age for Work AllowedLaw Number 23 Year 2002 on Child ProtectionLaw Number 11 Year 2012 on Juvenile Justice System.Law No. 10 of 2010 on Ratification of the Optional Protocol to the Convention on the Rights of the Child Concerning the Sale of Children, Child Prostitution and Child Pornography
Labor	Law No. 11 of 1998 on labor rights and obligations in IndonesiaLaw No. 19, 20 and 21 of 1999, contains Labor.Law Number 15 Year 2016 About Ratification of Maritime Labor Convention, 2006 (Maritime Employment Convention, 2006)Law Number 39 Year 2004 on the Placement and Protection of Overseas Workers.
Minority	Law Number 29 Year 1999 on Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).Law No. 40 of 2008 on the Elimination of Racial and Ethnic Discrimination
Persons with Disabilities	Law No. 19 of 2011 on the Ratification of Convention on the Rights of Persons with Disabilities (ICRPD).Law No. 8 of 2016 on Persons with Disabilities.

                        Sources: This data are cited from various secondary resources.

From Table 5, it shows that all human rights standards and provisions that stated on the UDHR, the ICCPR, and the ICESCR have been adopted by Indonesia Government through the enactment of several laws. There are eight out of nine international human rights instruments that have been ratified by the government of Indonesia Republic that are ICERD, ICCPR, ICESCR, CEDAW, CRC,, CAT, ICRMW, CRPD, and CPED. Most laws are enacted after the Amendment of the 1945 of Indonesia Constitution in 1999. 

All human rights instruments that has been established or ratified by the government of Indonesia Republic show that Indonesia has strong commitment to respect and protect human rights for everyone. However, the implementation of those instruments and regulations have been challenging. According to the report of the World Justice Project (WJP) Rule of Law index in 2017 to 2018, generally the rule of law index of Indonesia is in rank 63 out of 133 countries. Indonesia is on 78 rank out of 113 on respecting fundamental rights. This rank indicates that a system of positive law in Indonesia unsuccessful to respect core human rights that are firmly established under UDHR. 

F. International Human Rights Enforcement Mechanisms

These international human rights enforcement mechanisms are basically divided into two: first the conventional mechanisms and the second extra-conventional mechanisms.

1. Conventional Mechanism 

The conventional mechanisms are also referred to as the Oversight Body of the Agreement which consists of committees. The various Committees and their functions are as follows:

1. The Committee on Economic, Social and Cultural Rights serves to monitor the implementation of the ICESCR.
2. The Human Rights Committee serves to monitor the implementation of the ICCPR.
3. The Committee on the Elimination of Racial Discrimination serves to monitor the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination.
4. The Committee against Torture serves to monitor the implementation of the Convention Against Torture and Other Cruel, inhuman or degrading treatment or Punishment.
5. The Committee on the Elimination of Discrimination Against Women serves to monitor the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women.
6. The Committee on the Rights of the Child serves to monitor the implementation of the Convention on the Rights of the Child.

In principle, conventional mechanisms monitor the implementation of international treaties on human rights ratified by states. The various committees formed consist of independent experts acting in their respective capacities and not as representatives of their government, even though they are elected by representatives of states parties. The Committee consists of 18 members each, except for the Committee against Torture and the Committee on the Rights of the Child (both 10 members) and the Committee on the Elimination of All Forms of Discrimination Against Women (23 members). Selected members are in accordance with the principle of fair geographical representation, thus ensuring balanced perspectives and expertise in the main legal system. The main function of the treaty body is to examine reports submitted by States parties and to consider complaints of human rights violations.

1. Country Reporting Mechanisms: All States Parties to the treaty are required to submit a report stating the progress made and the problems faced in the implementation of the rights under the relevant agreement.
2. Individual Complaint Mechanisms: Three of the current international treaties allow individuals to file complaints about alleged violations of the right (Optional Protocol to the ICCPR, Convention on the Elimination of All Forms of Racial Discrimination and other Cruel and Torture or Cruel Conventions Treatment or Punishment No Human).
3. Intergovernmental Complaints: The same three treaties, in addition to the Convention on the Elimination of All Forms of Discrimination against Women, as set out above, also make provision for States Parties to file complaints regarding alleged human rights abuses against other participating countries.
4. Extra-Conventional Mechanisms

These extra-conventional mechanisms are divided in two: first, special procedures covering the Special Rapporteur, Special Representative, Special Envoy and Independent Expert, Working Group (thematic or country) and second, Complaint Procedure 1503.

The Complaint Procedure 1503 is undertaken by the state to the United Nations in case of gross and systematic violations of human rights. Each year the United Nations receives thousands of communications allegedly of grave and systematic violations of human rights and fundamental freedoms. Economic and Social Council handles such communications. This is known as the 1503 Procedure in accordance with the adoption of resolution 1503 dated May 27, 1970. It does not deal with individual cases but with situations that affect large numbers of people in a protracted period.

The work of the Universal Periodic Review (the UPR) Working Group will be elaborated after addressing the human rights mechanisms in Indonesia. 

G. Human Rights Enforcement Mechanisms in Indonesia

The obligation to respect human rights is not only realized by the government of Indonesia through the ratification of the International human rights instruments and other international human rights treaties. The obligation to protect requires the state to take the necessary measures (both in the legislative, judicial, and executive fields) to protect the rights and freedoms of the citizens in its territory. For example, making laws or new public policies or revising or revoking obsolete regulations to provide guarantees for the protection of people’s rights and freedoms in their territories. The obligation to fulfill requires states to take steps to fulfill basic human rights and freedoms such as the fulfillment of the right to health, the right to a decent living, the right to work, the right to education, etc.

In the policy sphere in 2011, the Indonesian government finally published the National Action Plan for Human Rights (RANHAM) for the period of 2011-2014 subsequently replaced with RANHAM 2015-2019. RANHAM is a document that contains the objectives, strategies, and focus of priority activities of Indonesia’s national human rights action plan and is used as a reference for ministries, institutions and local governments in respecting, protecting, fulfilling, enforcing and promoting human rights in Indonesia.

There are at least five general goals to be achieved in RANHAM 2015-2019, namely:

1. Increasing understanding of human rights of state apparatus and society;
2. The implementation of human rights instruments in government policy;
3. Increased participation of Indonesia in a forum of cooperation in the respect, protection, fulfillment, enforcement, and promotion of human rights;
4. Increased handling of human rights violations;
5. Improved accessibility for persons with disabilities and other vulnerable groups to participate in the civil, political, economic, social and cultural fields.

The Government of Indonesia has also established various human rights enforcement agencies such as KOMNAS HAM or National Commission for Human Rights, the National Commission for Women or KOMNAS PEREMPUAN, Indonesian Child Protection Commission or KPAI, Human Rights Court, and Constitutional Court of the Republic of Indonesia.

1. National Commission for Human Rights (KOMNAS HAM)

KOMNAS HAM was established through Presidential Decree no. 50 of 1993. It was established in the context of domestic and international politics that paid serious attention to the issue of human rights. As stated in Article 75 of Law Number 39 the Year 1999, it has the mandate: (a) to develop conditions conducive to the exercise of human rights, whether existing in the national legal instruments as well as the UDHR and the Charter of the United Nations (in Articles 55 and 56 referring to the UDHR as a basis for the promotion of human rights, (b) increasing the protection and enforcement of human rights for the development of a fully Indonesian human person and his ability to participate in various areas of life;

To achieve these objectives, KOMNAS HAM conducted four (4) main functions, namely: (a) Monitoring. (b) Research / assessment. (c) Mediation. (d) Education. The implementation of the four functions is divided into 4 sub-commissions namely Sub-Commission Monitoring, Sub-Commission of Extension, Sub-Commission of Study/ Research and Sub-Commission Mediation. To solidify its acts as one entity, each member of one sub-commission can serve on other sub-commissions.

In its development, KOMNAS HAM is still not considered to have advanced its function to a maximum degree. This is also influenced by the weakness of the KOMNAS HAM position and the lack of funding from the Government. In its latest report (2016), KOMNAS HAM reported accepting complaints to it of alleged human rights violations from the community amounting to 500 complaints filed per year. From January to December 2016, the most numerous violations were classified in violation of the right to legal justice in 28 cases, and violation of the right to welfare 14 cases.

2. Indonesian Child Protection Commission (KPAI)

The KPAI is an independent institution established under Law Number 23 the Year 2002 on Child Protection to improve the effectiveness of child protection. The KPAI was established to respond to reports of violence, neglect, and non-fulfillment of the basic rights of children in Indonesia. The political decision to form the KPAI also cannot be separated from the international impulse. International communities extend a deep concern over the condition of children in Indonesia. 

The number of cases of child labor, children in conflict areas, involvement of children in child-soldier conflicts such as those occurring in Aceh, high rates of dropouts, malnutrition, underage marriages, trafficking, etc. have attracted the attention of the international community to suppress the Indonesian government to create a special institution that oversees monitoring of child protection in Indonesia.

3. National Commission for Women (KOMNAS PEREMPUAN)

The KOMNAS PEREMPUAN was established based on Presidential Decree Number 181 the Year 1998 which was updated in Presidential Regulation Number 65 the Year 2005. It institution established by the state to respond to the issue of women’s rights as a part of the human right, the issue of violence against women. Because of its specific mandate, some have categorized KOMNAS PEREMPUAN as a specific human rights institution.

The task of KOMNAS PEREMPUAN:

1. Disseminating the understanding of all forms of violence against women of Indonesia and efforts to prevent and overcome and abolish all forms of violence against women;
2. Conducting studies and research on applicable laws and regulations as well as applicable international instruments and international instruments relevant to the protection of women’s human rights;
3. Carry out monitoring including fact-finding and documentation of all forms of VAW (Violations Against Women’s) as well as dissemination of the results of public monitoring and taking of measures to promote accountability and handling complaints;
4. Provide advice and consideration to the government, legislative and judicial institutions and community organizations to encourage the formulation and ratification of legal and policy frameworks that support efforts to prevent and overcome all forms of VAW and protection, enforcement, and promotion of women’s human rights in Indonesia;
5. Develop regional and international cooperation to enhance efforts to prevent and overcome all forms of VAW and protection, enforcement, and promotion of women’s human rights in Indonesia.

4. Indonesian Human Rights Court

Human rights tribunal is required to prosecute gross human rights violations. The establishment of this human rights court is ordered by the MPR Decree No. XVII/MPR/1998 on human rights Paragraph 2 states that the courts as referred to in paragraph 1 shall be established by law within a maximum period of 4 years. Not until 4 years, the Law Number 26 the Year 2000 about Human Rights Court has been issued. 

Since its inception, according to an Indonesia NGO so called the Commission of Disappeared Person (KONTRAS) records that the Human Rights Court in Indonesia has examined three cases of the East Timor Ad Hoc Human Rights Court case. There are 12 files of prosecution which in the end the defendant is finally terminated. Second, the Tanjung Priok Ad Hoc Human Rights Court, there are 4 files of demands, all the defendants are finally found not guilty by the court. Third, Ad Hoc Human Rights Court Abe Pura, there are two files of demands that all the defendants are found not guilty at the first level.

5. The Constitutional Court of the Republic of Indonesia/Mahkamah Konstitusi (MK)

MK is a branch of judicial power which stands after a period of independent reform which is final and binding. In its development, the MK is also referred to as the guardian of constitution or human rights protector. One of the authorities of the court is to conduct a judicial review that is to examine whether a law is contradictory to the 1945 Constitution or not. This means that every citizen or community group even a legal entity that has the legal standing can apply to the court if its constitutional rights are impaired by the coming into effect of a law in which the Act is considered to have violated the rights including human rights guaranteed in the constitution. 

Isra (2014), at least suggests four (4) decisions of the court that protect and promote human rights in which three of them are as follows:

1. Decision No 011-017/PUU-VIII/2003 concerning the testing of Law Number 12 the Year 2003 on General Election of Members of the People’s Legislative Assembly, Regional Representative Council, and Regional House of Representatives. In this decision the MK considers that Law Number 12 Year 2003 Article 60 (g) which contains a prohibition of being a member of the  People’s Legislative Assembly (DPR), DPD, Provincial DPRD, Regency or City DPRD for those who are ‘former members of the banned Indonesian Communist Party organization, persons directly or indirectly involved in G.30.S/PKI or other prohibited organizations, are violating the rights guaranteed by the 1945 Constitution in particular the right to recognition and guarantee of legal certainty, the right to equal opportunity in government and the right to be free from discriminatory treatment as guaranteed and protected through Article 28C Paragraph (2), Article 28D Paragraph (1), Article 28D Paragraph (3), and Article 28 I Paragraph (2). Therefore Article 60 (g) of the law is declared to have no binding legal force and is contradictory to the 1945 Constitution of the Republic of Indonesia.
2. Decision No. 6-13-20 PUU-VIII/2010 on the judicial review of Law No. 16 the Year 2004 on the Attorney of the Republic of Indonesia; Article 30 paragraph (3) (c) which states, ‘In the field of public order, the prosecutor also conducts activities: supervision of circulation of printed matter’. The AGO as an authoritative institution prohibits the circulation of the Book of Six Paths to God. In its decision, the Constitutional Court considered that the prohibition of circulating books as a source of information, seizure without trial, is inconsistent and even contradictory to Article 28F of the 1945 Constitution, the right to oral and written thoughts and rights to the recognition and guarantee of legal certainty. The Constitutional Court declared Article 30 paragraph (3) sub-paragraph c of Law No. 16 the Year 2004 on the Attorney of the Republic of Indonesia to be contradictory to the 1945 Constitution.
3. Decision No. 27/PUU-IX/2011 on the testing of Act No. 13 the Year 2003 on Manpower. Outsourced labor arrangements in the Labor Law are deemed to violate labor rights. The Constitutional Court ruled that the phrase ‘… a certain time labor agreement’ in Article 65 Paragraph (7) and the phrase ‘… employment agreement for a certain time’ in Article 66 Paragraph (2) letter b of Law Number 13 Year 2003 on Manpower as long as in the employment agreement it is not required to transfer the protection of the rights of the worker/ laborer whose work object still exists, even if there is a change of company that executes part of the wholesale work of another company or the enterprise of the worker/ labor provider. The MK assesses the provisions of certain time work may threaten the continuity of the work of the workers and this violates the right of everyone is entitled to work and receive compensation and fair and decent treatment in the employment relationship.

The current situation of protection of human rights in Indonesia in 2012 according to the statement of the United Nations Human Rights Council at the 13th Session of the Universal Periodic Review (UPR) in Geneva on 21 May to 4 June 2012 A / HRC/ WG.6/ 13/ IDN/ 1 shows that the fulfillment of human rights is still considered weak. Therefore, in 2012-2013 Indonesia is willing to accept special rapporteur especially about the fulfillment of the right to health, the right to housing and the right of freedom of expression and is committed to guaranteeing the right of freedom of religion.

The UPR Working Group Report of 2008 (four years prior) the international community highlighted the various weaknesses in human rights protection in Indonesia. For example, the lack of understanding of human rights in public policy-making at the local level (local regulation) led to the fact that in 2002 there were hundreds of local regulations that were canceled because they were not in line with human rights values. Therefore, harmonization needs to be done both in the field of legislation, administration, policy, and implementation.

The Working Group Periodic Report above both in 2008 and 2012 illustrates that the issue of transforming the norms of international human rights law into regulation both at the national level and local regulation becomes an important issue that must be considered by the Government Indonesia. Secondly, Indonesia’s responsibility to respect, protect and fulfill the human rights of citizens is part of Indonesia’s commitment to various international human rights treaties that have been ratified by the Indonesian government and Indonesia’s participation in various International Organizations.

Indonesia’s commitment to protecting human rights is strengthened by Indonesia’s ratification of international human rights treaties, the amendment of its Constitution, and the enactments of several laws. At the regional level, Indonesia is a member of ASEAN, and Indonesia has a significant role in the establishment of the ASEAN Declaration of Human Rights. However, the implementation of all instruments and human rights laws in Indonesia need to be improved based on the principle of the rule of law through interdisciplinary approach as Freeman says because the complexity of human rights violation and cases that had happened in Indonesia are related to several factors such as philosophical, social, and legal. Moreover, since the MDG’s goal is relevance for human rights, Alston remind international community to make a strong efforts to realize the a number of fundamental goals of it such as to remove of discriminatory laws and practices, to ensure freedom of religions and speech, to ensure freedom of information including access to information of economic sources, and to ensure that the rule of law provide security for all citizens.

H. Concluding remarks

Conceptually, human rights are inherent rights. They belong to every human being (universality) because of his or her dignity as a human being. Human rights cannot be revoked (inalienable) by anybody, human rights can only be restricted by the state if the restriction is regulated by law based on strict consideration that is to maintain public order, national security, public health (morality) for the sole purpose of protecting the rights of others and not to be used to discriminate against others (non-discrimination). Therefore, human rights are not the gift, the inheritance or the mercy of the state. The State in this case the Government has a primary obligation in the field of human rights as stipulated in the International Bill of Human Rights and domestic human rights law. The main obligations of the state in the field of human rights are obligation to respect, obligation to protect, and obligation to fulfill. In carrying out these obligations every country should also pay attention to other guidelines and principles both in the form of general comments and guides, such as the Limburg Principles on the ICESCR.

International human rights law also provides for human rights enforcement mechanisms either through existing international institutions or through the mechanisms set out in international human rights law. Human rights law in Indonesia is not much different from the international human rights law. This is because Indonesia is a member of the United Nations that adopts it as part of the national human rights law. Thus, Indonesia recognizes the binding force of the international human rights law. This can be seen from the ratification of Indonesia against the eight international agreements on human rights, as well as human rights formulas contained in the 1945 Constitution of the Republic of Indonesia, the Law 39/1999 concerning human right, the human rights court law and various other laws and regulations. However, the government as the duty holder of human right protection should not continue on implementing or making regulation that restrict fundamental rights and incompatible with the Bill of Human Rights. Moreover, the implementation of the human rights law and the fulfillment of victims’ rights of human right violations in Indonesia is still considered weak and need to be improved.

Awareness of the importance of promoting and respecting human rights must be understood by every component of the nation and society not merely a form of Indonesian commitment as part of the international community that is bound by international agreements. The State recognizes its position as the holder of the obligation to respect, protect and fulfill human rights. More than that, respect for human rights is part of the nation’s efforts to uphold the principles of the rule of law, and to achieve the state’s goal of protecting the entire nation based on Pancasila and Bhineka Tunggal Ika (unity in diversity principle), further strengthening the implementation of constitutional democratic principles based on the 1945 Constitution of the Republic of Indonesia. It is therefore important to understand basic human rights principles and human rights regulations at both international and national levels appropriately and comprehensively.

References

Alston, P. (2005). Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals.  Human Rights Quarterly. Vol. 27, No. 3. The John Hopkins University Press. P.775-829.

Ashidiqi, J. (2009). The Constitutional Law of Indonesia: A Comprehensive Overview. Sweet & Maxwell Asia.

Bogdandy, A. and Wolfrum, R. (eds), (2008). Max Planck Year Book of United Nations Law, Volume 12, 2008. p 347-380. Koninklijke Brill N.V. the Netherlands.

Brownlie, I (1998). Principles of International Law. 5th Edition, Oxford, 1998.

Buergental, T. (2001). Menghormati dan Menjamin: Kewajiban Negara dan Pengurangan Hak Yang Diizinkan. in Ifdal Kasim (eds.), Hak Sipil dan Politik: Esai-esai Pilihan, Buku 1, Penerbit ELSAM, ISBN: 979-8981-20-0. Jakarta, 2001

Davies, P. (1994). Hak-Hak Asasi Manusia, Sebuah Bunga Rampai. ed. A.Rahman. Jakarta: Yayasan Obor Indonesia. 

Djamin, Rafendi. The Paradox of Freedom of Religion and Belief in Indonesia. p. 2-3. Retrieved on December 30^th, 2018 at www.ohrc.org.  

Donnelly, J. 92013). Universal Human Rights in Theory and Practice.3rd edition, Cornell University Press.p.107.

Drzewicki, K (2004). The United Nations Charter and The Universal Declaration of Human Rights, in Raija Hanski and Markku Suksi, An Introduction of International Protection of Human Rights, Abo Akademik University, Finland. p.71.

Fadjat, A.M. (2005). Tipe Negara Hukum. Malang: Bayumedia Publishing.

Feldman, N. (2002). From Liberty to Equality: The Transformation of the Establishment Clause. California Law Revie. Volume 90, issue 3. 

Freeman, M (2011). Human Rights: An Interdisciplinary Approach (2nd Edition). Polity. 

Harjono. (2009). Politik Hukum Perjanjian Internasional. Surabaya: PT Bina Ilmu.Isra, S. (2014). The Role of the Constitutional Court in the Strengthening of Human Rights in Indonesia. Journal of the Constitution, Volume 11, No. 3, September 2014. p. 421-425. 

Hyden, P (2001). The Philosophy of Human Rights (Paragon House, St. Paul USA) p. 48.

Hornby, AS. (2006). Oxford Advanced Leaner’s Dictionary of Current English, (7^th edn., Oxfprd University Press). p.1308.

Jellinek, G.(1895) The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History. Retrieved at https://oll.libertyfund.org/titles/jellinek-the-declaration-of-the-rights-of-man-and-of-citizens.

Kamali, MH. (2017). Human dignity in Islam and its impact on society.  New Straits Times, Wednesday 25 October 2017.

Kasim, I (2007). Implementation of Economic, Social and Cultural Rights: Normative Framework and International Standards. National Seminar Paper with the theme ‘Toward the Effective Protection and Monitoring of Economic, Social and Cultural Rights in Indonesia, the cooperation of PUSHAM ​​UII and Norwegian Center for Human Rights, Oslo. 

Lauren, P. (2013-10-01). The Foundations of Justice and Human Rights in Early Legal Tests and Thought. In (ed.), The Oxford Handbook of International Human Rights Law: Oxford University Press.p. 165-166.

McCrudden, C. (2008), Human Dignity and Judicial Interpretation of Human Rights, The European Journal of International Law Vol. 19 no. 4 © EJIL 2008. p.655-724.

Mahfud.  (2009). Meneguhkan Kebebasan Beragama di Indonesia, Menuntut Komitmen Presiden dan Wakil Presiden Terpilih, held by Indonesian Conference on Religion and Peace (ICRP).  Jakarta.

Mauna, Boer. (2000). Hukum Internasional, Pengertian, Peranan dan Fungsi Dalam Era Dinamika Global. Bandung: Alumni Bandung.

Mayer, Ann Elizabeth. (1994). Universal versus Islamic Human Rights: A Clash of Culture or a Clash with a Construct. Michigan: Journal of International Law, Vol.15 No.2 Winter 1994.

Hanski, R. and Markku Suksi, M. (2004) An Introduction to the International Protection of Human Rights, A Textbook, Second revised edition, Institute for Human Rights, Abo Akademi University.

Prasetyo, Y.A. (,2012). Ecosob and State Obligations, Papers Strengthen Human Rights                 Understanding Justices throughout Indonesia, Organized by National Human                 Rights Commission, Hotel Holiday-Lombok, 28-31 May 2012. Accessible at                 http://pusham.uii.ac.id

Rasjidi, L. (1996). Dasar-Dasar Filsafat Hukum. Bandung: Citra Aditya Bakti. 

Ghandhi, The Human Rights Committee and Derogation in Public Emergencies, 32 GERMAN Y.B. INT’L L. 323 (1989).

Shulztiner, Doron and Guy E. Carmi, (2014). Human Dignity in National Constitutions: Functions, Promises and Dangers. The American Journal of Comparative Law. Vol. 62, No. 2 (SPRING 2014), p. 461- 490.

Smith, RK. (2013). Texts and Materials on International Human Rights, (6nd edition, Oxford University Press). p. 1-5.

Tomuschat, C. (2003). Human Rights, Between Idealism and Realism. Oxford University Press. 

Theodorson, G.A., and A.G. Theodorson. 1979. A Modern Dictionary of SOCiology. New York: Barnes and Noble Books. 

Thomas Buergental, To Respect and To Ensure: State Obligations and Permissible Derogations, in INTERNATIONAL BILL OF RIGHTS, supra note 22, at 78–86

Vasak, K. (1982). General Editor Revised and edited for the English, Philip Alston (eds). Volume 1 Greenwood Press Westport, Connecticut Unesco, Paris, France. 

Van Dijk, Mr.P., Flinterman, Prof.mr.C., Janssen, Dr.mr.P.E.L. (2002).   International Law, Human   Rights.   Fourth   Revised   Edition, Den   Haag, Koninklijke Vermande.

Walker, N. (2013). Universalism and particularism in human rights. In C. Holder & D. Reidy (Eds.), Human Rights: The Hard Questions (pp.39-58). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511758553.004.

Wiratraman, H. P. (2007). Hak-hak Konstitusional Warga Negara Setelah Amandemen UUD 1945: Konsep, Pengaturan dan Dinamika Implementasi, Jurnal Hukum Panta Rei, Vol. 1 No.1 Desember 2007, Jakarta, Konsorsium Reformasi Hukum Nasional.

World Justice Project. The WPJ  Rule of Law index 2017-2018. p.22. Retrieved on December 30^th, 2018 at www.worldjusticeproject.org. 

Other Instruments and Reference:

Universal Declaration of Human Rights 1948 retrieved at http://www.hchr.org/EN/pages/home.aspx.

The ICCPR retrieved from http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.

The ICESCR retrieved from http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.

European human rights instrument: http://echr.coe.int/pages/home.aspx?p=basictexts.

African Charter of Human and Peoples’ Rights: http://www.achpr.org/instruments/achpr/

KOMNAS HAM (2016). Annual Report 2016. Fulfillment of Minorities and Vulnerable Groups. See the 2017 Annual Report of KOMNAS HAM accessible at https://www.komnasham.go.id/files/20171101-report-tahunan-komnas-ham-tahun-$LZ3FPF.pdf

The 1949 Constitution of Federal Republic of Indonesia. Retrieved at http://ppid.kpu.go.id

The 1950 Temporary Constitution of Indonesia. Retrieved at http://wcw.cs.ui.ac.id/repository/dokumen/lihat/10562.pdf

The 1945 Constitution of Indonesia. Rerieved at http://www.mahkamahkonstitusi.go.id/public/content/infoumum/naskahkomprehensif/pdf/naskah_Naskah%20Komprehensif%20Buku%202.pdf

The 1945 Constitution of Republic of Indonesia retrieved at http://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_174556.pdf.

The Law Number 39 Year 1999 concerning Human Rights. Retrieved at https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/55808/105633/F1716745068/IDN55808%20Eng.pdf

The Law Number 26 Year 2000 concerning Human Rights Court. Retrieved at www.dpr.go.id/dokjdih/document/uu/UU_2000_26.pdf

Annual Report of Human Rights National Commission 2007: Indonesia. Released by Human Rights National Commission January 11, 2009 di http://komnasham.or.id

CERD. UN General Assembly Resolution No. 2106 (XX) December 21, 1965. 

Convention Anti Torture (CAT). UN General Assembly resolution 39/46 of 10 December 1984.

General Comment No.22 (48) of the United Nations Human Rights Committee provides normative substance to Article 18 of the ICCPR

UN Human Rights Council: Statement for the 2012 Universal Periodic Review of Indonesia, http://www.hrw.org/news/2012/09/19/un-human-rights-council- statement-2012-universal-periodic-review-indonesia,

Human Rights Council Working Group on the Universal Periodic Review Thirteenth session Geneva, 21 May–4 June 2012 di http://daccess-dds- ny.un.org/doc/UNDOC/GEN/G12/116/38/PDF/G1211638.pdf?OpenElement

National Human Rights Action Plan 2011-2014 based on Presidential Decree No. 23 of 2011.

National Human Rights Action Plan (RANHAM) 2015-2019. Retrieved at http://setkab.go.id/perpres-rencana-aksi-nasional-ham-2015-2019-diteken-ada-secretariat-text/ Contents of accessible at http: // www. balitbangham.go.id/po-content/peraturan/Perpres%20RanHAM%202015%20Final.pdf

UNIVERSAL PERIODIC REVIEW, Report of the Working Group on the Universal Periodic Review –Indonesia, A/HRC/8/23, 14 May 2008, General Asembly of United Nation.  HUMAN RIGHTS COUNCIL Eighth sessions Agenda item 6, dapat diakses melalui  http://www.geneva-academy.ch/RULAC/pdf_state/UPR-Outcome-of-the-Working-Group.pdf