Measuring Human Rights Legal Resilience in the Context of Ethnic Anti-Discrimination: Study of Universalism or Cultural Relativism?

摘要

The enforcement of human rights norms in Indonesia is a form of legal transplantation, even though human rights are universal. Legal transplantation is partly caused by globalization, which breaks down the boundaries of the nation-state, thus integrating the law in a network of global value systems and causing various consequences, especially on the national law or local law. Human rights are one of the complex fields that are brought along in the current of globalization. Human rights offer a new approach to the national laws of various countries, especially those that ratify international agreements. One of them is transplantation of the human rights law of anti-discrimination, which is done voluntarily by the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination. The ratification was followed by the harmonization of human rights law against ethnic discrimination that provided domestic legal protection both through Article 281 paragraph (2) of The Constitution of the Republic of Indonesia of 1945 and Law Number 40 of 2008 concerning the Elimination of Racial and Ethnic Discrimination. However, the existence of global legal values can challenge the dominance of local values, so that the potential to marginalize or even replace. In the social and cultural context, they have the potential to trigger tension between indigenous (local) people and citizens of the nation who are considered migrants. Although the tension is not always in the form of physical conflict, for example in Yogyakarta, Chinese ethnic dissatisfaction arises over the enactment of the Instruction of the Governor of the Special Region of Yogyakarta (DIY) No. K/898/A/1975 on Uniforming Policy on Granting Rights to Land to a Non-Indigenous Indonesian Citizen. This paper aims to discuss the legal resilience of the results of transplants related to ethnic anti-discrimination human rights. Specifically, it explains whether the legislation of transplant results has succeeded in adapting to the conditions under which human rights are enforced, including when faced with cultural relativism.