STATE RESPONSIBILITY AND TRANSNATIONAL PROTECTION FOR INDIGENOUS PEOPLES IN INDONESIA-PAPUA NEW GUINEA

Resumen

Indigenous peoples whose customary lands are divided by the Indonesia (Papua)-Papua New Guinea border face systematic marginalization despite constitutional recognition in Article 18B paragraph (2) of the 1945 Constitution and Constitutional Court Decision No. 35/PUU-X/2012. The transmigration program seized 180,000 hectares of Kanum customary land without Free, Prior and Informed Consent. The expansion of oil palm plantations has converted 28,000 hectares of Muyu-Yonggom sago forest. Restrictions on cross-border mobility have disrupted Yei ritual practices. The school dropout rate has reached 68 percent and the maternal mortality rate is 489 per 100,000 births. The literature on the rights of indigenous peoples in Indonesia has focused only on the domestic context and has not analyzed the transnational dimension. The tripartite obligations framework has not been applied to cross-border indigenous peoples. An operational transnational protection model is also not yet available. This study uses doctrinal, socio-legal, and comparative law methods with data from 47 in-depth interviews, 10 weeks of participatory observation in three locations, and analysis of 127 journal articles. Findings show that Indonesia has failed in all three levels of tripartite obligations (respect, protect, fulfill) through land grabbing, neglect of palm oil expansion, and lack of basic services. Papua New Guinea, despite having a stronger constitutional framework, has also failed to protect against the manipulation of Special Agriculture and Business Leases. Comparative analysis reveals asymmetrical restrictions on mobility and the paradox that Papua New Guinea, as a former colony, actually respects cross-border customary unity more than Indonesia. The study proposes a Trans-Border Indigenous Peoples Commission model with quasi-judicial authority. The theoretical contribution is the application of tripartite obligations to cross-border indigenous peoples and the integration of Legal System Theory, Welfare State Theory, and Radbruch Formula. The practical contribution is the design of an operational institution with implementation strategies to overcome political resistance.