The government of Indonesia has taken a necessary measure regarding the nickel mining in Raja Ampat. It has revoked four out of five mining licenses (IUP) belonging to PT Kawei Sejahtera Mining, PT Mulia Raymond Perkasa, PT Anugerah Surya Pratama and PT Nurham. However, one license belonging to PT Gag Nikel (GN) remains untouched and the government said it did not find any violation in relation to environmental aspects and technicalities [1]. Concludingly, Minister of Energy and Mineral Resources, Bahlil Lahadalia, said that there is no significant environmental harm due to GN’ activities. His statement, however, contradicts Syaifuddin Yusuf’s, an expert in marine and fisheries from Universitas Hasanuddin and a research study conducted in 2024 [2]. He said that mining sedimentation does have serious impacts threatening the life of coral reefs−the coral triangle−as well as marine organisms leading to loss of marine biodiversity [3]. While Indonesia, as a sovereign nation, possesses inherent rights over natural resources within its territory, the exercise of this sovereignty is increasingly understood to be balanced by evolving global environmental protection obligations.

First and formally acknowledged in the UNGA Resolution 1803 of 1962, permanent sovereignty over natural resources (PSNR) serves as the core foundations of the right to self-determination and the development of national and global economy (the era of New International Economic Order). Although PSNR emerged within the context of decolonization and international economic law, it was thereafter integrated into the umbrella of international environmental law (IEL) and principles. In the 1972 UN Conference on the Human Environment which gave birth to the Stockholm Declaration, it limits States’ absolute freedom in managing natural resources. Principle 21 of the Stockholm Declaration prohibits activities within a State that causes transboundary environmental damage to another as well as areas beyond national jurisdiction−also known as the no harm rule. Two decades later, the UN held a Conference on Environment and Development highlighting the interconnectedness between social, economic and environmental factors for human beings. Principle 2 of Rio Declaration reiterates the no harm rule with additional emphasis on other principles such as common but differentiated responsibilities, precautionary approach as well as sustainable development. As the no harm rule emerged in the 1941 Trail Smelter arbitration−decades prior to Rio and Stockholm Declarations, the stressing point of the rule is purely on sovereignty of a State instead of protection of environment per se [4].

Transboundary environmental damage through oceans is also regulated by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Article 194 of UNCLOS obliges its State Parties to “prevent, reduce and control pollution of the marine environment” and the pollution arising from any activities within their jurisdiction “does not spread” let alone “cause damage to other States and their environment”. Marine pollution in question encompasses; pollution from vessels; seabed, subsoil and other marine installations and devices; as well as  land-based pollution; as well as direct introduction of toxic and harmful substances from land-based sources or by dumping. Sections 5 and 6 of Part XII of UNCLOS regulate that in achieving the said obligations, State Parties must adopt and regulate laws, enforce the laws and cooperate regionally and globally with other States or relevant International Organizations.

The no harm rule both within the context of IEL or UNCLOS emphasize due diligence obligation. Commentaries of the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (the Draft Articles) elaborates that State’s unilateral best efforts to prevent harm or to minimize risk of transboundary harm signify due diligence [5]. The 2^nd Report of ILA Study Group on Due Diligence admits that it is hard to set unified standards for due diligence, however, at the very least there are elements which can be taken into consideration [6]. Some of the elements are knowledge of an activity/potential risk, degree of risk and good faith. First, a State is assumed to know any activity within its jurisdiction especially when it comes to risky activities that potentially harm another State as observed in Corfu Channel case. Even in absence of knowledge, a State has to find such relevant knowledge in fulfilling due diligence obligation [7]. Second and third, as harm may vary therefore the measures need to be taken depend on the degree of risk of that harm and the State concerned must act in good faith in doing so.

Most importantly, as the Draft Articles’ commentaries stipulate, due diligence is an obligation of conduct not of result. This has been reiterated in the Genocide [8] despite a bit different case:

“A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power […]”.

That means, a State will be held responsible for not taking best efforts within its power to prevent or to minimize the harm even though the harm eventually reaches territory of another State. According to the Draft Articles’ commentaries, the rationale behind this is that prevention of environmental harm is better than giving compensation when the harm has occurred.

Indonesia has absolute sovereignty over its natural resources and to utilize it for the sake of its nationals and economic development. Sadly, the absoluteness ended decades ago when environmental issues grew rapidly threatening human life and its surrounding ecosystems e.g. climate change, biodiversity loss as well as air and marine pollution. The no harm rule (and its component, due diligence) serves as a balancing tool between PSNR and protection of the environment. In the case of nickel mining in Raja Ampat, although the government has taken measures by revoking four out of five companies’ mining licenses, it is insufficient and may trigger Indonesia’s accountability within the field of IEL and/or UNCLOS.

Raja Ampat is the heart of the Coral Triangle, where it harbors more than 1638 reef fishes and 534 hard corals constituting 67% of the world’s described species [9]. However, mining activities within this Region threatened the sustainability of the corals and aquatic organisms. Activists and experts have repeatedly stated that the mining waste will pollute the marine ecosystems leading to destructive impacts against the coral reefs and biodiversity loss [10]. A study also shows that sedimentation due to mining activities is worsened in tropical countries [11] like Indonesia because of the heavy rainfall. Another important point to be highlighted is that Indonesia has maritime borders with Australia, Palau and Papua New Guinea in the Eastern part. It means that if these potential risks are not prevented, surely it would reach the territory of neighboring States.

As the party to UNCLOS, Indonesia is under obligation to preserve and protect marine environment by preventing, controlling and reducing marine pollution. One of marine pollutions covered by UNCLOS is land-based pollution which includes waste from mining activities [12]. Therefore, the waste of nickel mining in Raja Ampat that flows to the surrounding oceans is categorized as land-based pollution and Indonesia must act in accordance with UNCLOS. Not only UNCLOS obliges Indonesia to protect its marine environment from pollution but also ensures such pollution (if occurs) does not reach other States’ territory. The obligations can be achieved through national laws and its enforcement as well as cooperation with relevant organizations and States. Generally, this also aligns with the no harm rule that possesses the status of customary international law.

Indonesia’s revocation of four out of five mining companies’ licenses might not represent an act of prevention as the potential harm to the marine environment remains. It has been elaborated previously that Indonesia’s obligation is to act diligently in preventing harm to the marine environment regardless the harm eventually affects other States. This due diligence obligation, as the Draft Articles and UNCLOS stipulate, can be achieved through effective national laws and enforcement. Nevertheless, laws on mining and protection of marine environment are far from effective. On one hand, Gag Island, where PT Gag Nikel operates, is categorized as a small island under the Law No. 1 of 2014 and Constitutional Court Decision No. 35/PUU-XXI/2023 also stipulates that mining activities in coastal areas cause irreversible damage and inconsistent with precautionary principle. On the other hand, the government clarified that PT Gag Nikel is exempted from those prohibition simply because it possesses Kontrak Karya since 1998 [13] disregarding any circumstances.

Balancing permanent sovereignty to exploit and utilize natural resources with protection of the environment requires comprehensive laws and policies and it is indeed a complex issue depending on the priority of a State. However, as an Archipelagic State, the decision in prioritizing the protection and sustainability of marine environment always stands right for Indonesia. This goes beyond merely national interest, Indonesia has international obligations to ensure the healthiness of its marine ecosystems for the greater good of international society especially in today’s era of climate change and biodiversity loss. Thus, the government should reconsider the current decision allowing nickel mining in Raja Ampat because otherwise it may trigger (although complex) Indonesia’s accountability for failing to preserve marine environment from harm.