Constitutional Justice Arsul Sani welcoming international environmental law expert Louis J. Kotzé, on Wednesday (12/3/2025). Photo by MKRI/Ifa.

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JAKARTA (MKRI) – The Constitutional Court (MK) held another international discussion titled “Law Beyond Borders: Ecological Constitutionalism” in the Delegation Room, 10th Floor of Building I, on Wednesday, December 3, 2025. The event was opened by Constitutional Justice Arsul Sani and featured international environmental law scholar Louis J. Kotzé as the main speaker. This initiative is part of the Court’s ongoing efforts to strengthen understanding of increasingly complex environmental issues that significantly affect national and global legal systems.

In his remarks, Justice Arsul Sani expressed appreciation to participants and supporting institutions, including the Indonesia Ocean Justice Initiative (IOJI) and the Indonesian Center for Environmental Law (ICEL). He hoped Kotzé’s insights would enrich participants’ perspectives on contemporary environmental law dynamics.

“The Constitutional Court (MK) has handled numerous judicial review cases related to environmental issues. Therefore, scientific and comparative perspectives are essential to deepening our understanding,” Justice Arsul Sani stated.

IOJI CEO Achmad Santosa added that the environmental law paradigm must be updated to respond to the escalating planetary crisis. He described Kotzé as one of the leading scholars advancing progressive and systemic legal approaches. Kotzé’s visit to Indonesia, facilitated by IOJI and ICEL, also included meetings with the Supreme Court, the Constitutional Court, and civil society organizations.

The Anthropocene Era and Emerging Challenges in Environmental Law

In his presentation, Kotzé explained that the world has entered the Anthropocene, an era in which human activity fundamentally alters Earth’s systems. He argued that legal frameworks designed when ecosystems were still stable are no longer sufficient. “The environment that we aim to protect through traditional environmental law no longer exists in the same form,” he said.

He emphasized that climate change has reached a point where stopping it entirely is increasingly difficult, requiring the law to focus on adaptation, resilience, and disaster preparedness. Kotzé also highlighted the rise of outerspace exploration, which poses new environmental challenges requiring legal attention.

He further noted that countries in the Global South—including Indonesia—are among the most vulnerable to the impacts of climate change despite not being major contributors to global emissions. This disparity, he stressed, is a matter of global justice that policymakers must address.

The Role of Courts in Upholding the Rule of Law and Climate Accountability

Kotzé asserted that courts play a crucial role in ensuring that states and corporations fulfill their environmental obligations. “If court decisions are not implemented, the rule of law cannot be upheld,” he emphasized.

He explained that states have a fundamental duty to formulate, implement, and enforce climate policies—a legal obligation affirmed across multiple jurisdictions. “When states adopt climate regulations, they are obliged to implement them. If governments fail to do so, it constitutes unlawful conduct,” he said.

According to Kotzé, courts are also vital in ensuring corporate accountability. He cited a landmark ruling by the Supreme Court of the Netherlands requiring Royal Dutch Shell to significantly reduce its carbon emissions following a lawsuit filed by the environmental group Milieudefensie. “That ruling is one of the strongest precedents ever established. It shows that corporations bear direct responsibility for the climate crisis,” he noted.

Kotzé explained that climate litigation often pushes states to improve their climate policies, even at the risk of triggering backlash, including retaliatory lawsuits (SLAPP suits) filed by major corporations.

Access to Justice and the Role of Courts in Protecting Vulnerable Groups

The next function of the judiciary, Kotzé explained, is to provide a platform for communities to be heard. “A good court must offer a forum for citizens to voice their objections. Without the opportunity to be heard, there can be no substantive justice,” he said.

He stressed that citizens must be able to file constitutional claims, including before Indonesia’s Constitutional Court. Kotzé also noted that in 2019, courts around the world began granting human rights claims related to climate change, including those filed by vulnerable groups such as the elderly.

“One example is a group of elderly women in Europe who sued because they are more vulnerable to the impacts of climate change. The European Court of Human Rights recognized that they require special protection,” he said.

The Role of Science in Climate Litigation

Toward the conclusion of his presentation, Kotzé emphasized the importance of scientific expertise in climate adjudication. “We are not scientists. We do not fully understand the dynamics of climate change. Therefore, we must increasingly rely on scientific experts,” he said.

He referred to the 2021 decision of the German Constitutional Court, in which 80 percent of the Court’s reasoning was based on reports from the Intergovernmental Panel on Climate Change (IPCC). The scientific findings formed the constitutional basis that the state must protect citizens from the threats posed by climate change.

Kotzé concluded by underscoring the need for collaboration between academics and the judiciary to strengthen the integrity of environmental rulings.

Discussion Session

During the discussion, a participant asked how courts can balance deference to executive policymaking with their obligation to protect constitutional rights when corruption influences environmental decisions. The participant also inquired about the effectiveness of courts that lack direct enforcement mechanisms.

Responding to the question, Kotzé explained that the effectiveness of judicial decisions heavily depends on direct enforcement mechanisms. Without them, he noted, governments and corporations are often reluctant to comply, especially when rulings conflict with their interests. “In many countries, including South Africa, non-compliance rates can reach nearly one hundred percent,” he said.

He added that the challenge becomes even more complex when court rulings require government funding or administrative capacity. Without such support, implementation may stall or fail entirely. “If communities or government institutions choose to ignore the ruling, the problem becomes far more complicated,” he said.

According to Kotzé, this is a constitutional challenge. There are oversight mechanisms such as public monitoring, social media, and institutional reminders. However, strengthening judicial authority through legislative reform is uncertain: theoretically simple, but politically difficult.

This complexity is especially evident when rulings require funding or administrative enforcement. Many decisions cannot be fully implemented due to financial constraints or limited government capacity. But if the public chooses to reject or disregard these rulings, the problem becomes even more difficult to resolve. (*)

Author         : Utami Argawati
Editor          : Lulu Anjarsari P.
Translator    : Aski V. Rumere/Donny Yuniarto

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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