Indigenous Land Rights and Human Rights Protection in Indonesia: A Civil Law Perspective on Legal Recognition and Remedies

Abstract

Indonesia’s land law rests on a persistent tension between the unitary, state-centred logic of Article 33(3) of the 1945 Constitution ^[1] and the plural, communal foundations of adat (customary) land tenure that predate the modern Indonesian state. This article examines how Indonesia’s civil law framework recognises, or fails fully to recognise, the land rights of indigenous communities, generally referred to in Indonesian law as masyarakat hukum adat, and what remedies are available to communities whose customary land has been dispossessed, encroached upon, or left without adequate legal protection. Employing normative legal research that combines a statutory, conceptual, case, and comparative approach, the article traces the doctrinal foundations of customary land rights from colonial adatrecht scholarship through the 1960 Basic Agrarian Law, the 2012 Constitutional Court ruling on customary forests, and the most recent ministerial regulations on communal land registration. It then evaluates the civil, administrative, and constitutional remedies available domestically, alongside the persuasive force of international human rights instruments such as the United Nations Declaration on the Rights of Indigenous Peoples and the International Covenant on Civil and Political Rights. The discussion is organised into two principal sections: first, an analysis of the legal recognition of indigenous land rights within Indonesia’s civil law architecture, and second, an assessment of the legal remedies and human rights protection mechanisms open to affected communities. The article finds that recognition remains conditional, fragmented across sectoral regulations, and dependent on discretionary local-government action, while remedies are procedurally accessible in principle but practically difficult to obtain because of evidentiary burdens, the dominance of the positive land-registration system, and weak enforcement of judicial and constitutional rulings. The article concludes that a unified national law on indigenous peoples, harmonised with civil law doctrines of legal subjecthood and property, together with a rights-based and remedy-oriented enforcement mechanism, is indispensable if Indonesia is to close the gap between constitutional recognition and lived protection of indigenous land rights.