By Sandy Prasetya Makal
Director of Law, Human Rights, and Democracy, Partner Indonesia
Environmental disputes often reach the courts only after damage has already occurred, while knowledge about its causes and consequences remains contested. At the same time, communities may already be bearing and experiencing the burden of environmental harm without having access to adequate laboratory testing. An area may have burned while the parties disagree over the source of the fire, the extent of the damaged land, and the value of the resulting losses. In such circumstances, courts must make decisions based on the evidence available, even when scientific explanations have yet to answer every question.
This difficulty touches upon a fundamental question of law: who should bear the consequences of uncertainty? If protection is always postponed until every ecological relationship can be explained with complete certainty, communities and the environment bear the risks during that period of delay. Yet if every allegation is immediately treated as sufficient to establish liability, legal proceedings lose the standards required for accountable decision-making. Environmental law must therefore find a way to address both concerns simultaneously.
It is within this context that the principle of in dubio pro natura becomes relevant. In simple terms, the phrase refers to favouring the protection of nature when doubt exists. The academic question, however, concerns what constitutes such doubt, the circumstances that justify the principle’s application, and the legal consequences that may be drawn from it. Without clarity on these three matters, a principle intended to strengthen environmental protection can easily become a slogan that offers little assistance to judges in resolving actual disputes.
The literature does not provide an entirely uniform interpretation of the principle. Serena Baldin and Sara De Vido describe in dubio pro natura as a principle that should be distinguished from the precautionary principle, while examining its development in international law and comparative legal systems. Their analysis demonstrates the importance of considering the legal context in which the principle is applied. It would therefore be inaccurate to treat it as though it already possessed a single universal meaning and identical legal consequences across all jurisdictions.
One important formulation appears in Principle 5 of the IUCN World Declaration on the Environmental Rule of Law. The Declaration guides decision-makers, when confronted with uncertainty, to favour outcomes that protect the environment and alternatives that cause the least environmental harm. Its formulation also considers situations in which the potential environmental impacts of an action are disproportionate to its expected benefits. Its legal status must nevertheless be understood precisely: the Declaration is a normative reference rather than a binding instrument comparable to an international treaty, and its application within domestic legal systems therefore requires an appropriate legal basis and argument.
The relationship between this principle and the precautionary principle is indeed close. Principle 15 of the 1992 Rio Declaration explicitly states that where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Its primary concern is how action should be taken in response to risk when scientific knowledge remains limited.
Analytically, the precautionary principle helps answer when protective action should be taken even though science has not provided complete certainty. In dubio pro natura, by contrast, can help guide the interpretation or decision to be made when uncertainty remains. The two principles may operate together. Treating them as identical, however, risks obscuring the distinction between risk assessment, legal interpretation, and the determination of legal consequences.
Endri, in his study of environmental administrative disputes, distinguishes between scientific uncertainty and legal uncertainty. This distinction is useful because each requires a different form of response. Scientific uncertainty requires the examination of evidence and competent expert opinion. Legal uncertainty requires interpretation and legal reasoning capable of being justified within the legal system.
Furthermore, uncertainty concerning the existence of environmental damage must be distinguished from uncertainty regarding its cause. Both are also different from uncertainty concerning the amount required for restoration. In a particular case, environmental damage may already have been established even though the methodology for calculating losses remains disputed. It would be erroneous to use uncertainty at the valuation stage to eliminate the obligation to restore the environment altogether. Conversely, the existence of environmental damage in a particular area does not automatically establish the liability of every business operating nearby.
These distinctions illustrate why the term “uncertainty” requires a clearly identified object. A judgment that merely states that uncertainty exists, without explaining where that uncertainty lies and how it affects the resolution of the case, will be difficult to evaluate. Legal principles should clarify judicial reasoning, including by revealing the limits of judicial knowledge and explaining why those limitations nevertheless permit a particular legal response.
Within Indonesian law, an interpretation favouring environmental protection has a constitutional foundation. Article 28H paragraph (1) of the 1945 Constitution recognises the right to a good and healthy environment. Article 33 paragraph (4) incorporates sustainability and environmental considerations into the principles governing the national economy. Together, these provisions affirm that environmental protection forms part of the constitutional order and the direction of economic development.
From the relationship between these provisions, an interpretation may be developed under which the economic benefits of an activity must be assessed together with its ecological consequences. An assessment limited to production, revenue, and employment risks overlooking burdens transferred to communities. The loss of water sources, declining land productivity, and the costs of ecosystem restoration must also have a place within legal consideration. Under such an interpretation, environmental quality is one of the conditions required for prosperity to endure.
At the statutory level, Article 2 of Law No. 32 of 2009 on Environmental Protection and Management includes, among others, the principles of sustainability, precaution, justice, biodiversity, and the polluter-pays principle. The explanation of the precautionary principle makes clear that limitations in scientific knowledge concerning the effects of an activity do not justify delaying measures intended to reduce or avoid the threat of environmental damage. The term in dubio pro natura itself does not expressly appear in the list of statutory principles. Its legal basis must instead be developed through interpretation of principles already recognised by law. Any reading of the operational provisions of this Law must also take into account amendments introduced through Law No. 6 of 2023.
Judicial guidelines provide a more concrete framework. Article 47 of Supreme Court Regulation (PERMA) No. 1 of 2023 regulates the application of the precautionary principle to evidentiary matters in environmental civil cases where uncertainty exists concerning causation and impacts. Relevant considerations include the threat of serious and potentially irreversible harm, scientific uncertainty, and the prioritisation of prevention. This Regulation replaced the previous environmental case-handling guidelines established under Chief Justice Decree No. 36/KMA/SK/II/2013. Consequently, any discussion of the law currently in force should place the earlier guidelines within the context of this development.
Judicial decisions had already demonstrated how environmental principles could be applied to actual disputes. The Mandalawangi case is an important reference. In Decision No. 1794 K/Pdt/2004, decided on 22 January 2007, the Supreme Court examined a dispute concerning the impacts of landslides in the Mount Mandalawangi area of Garut. In its reasoning, the Court accepted the use of the precautionary principle to address a gap in the law. The Court also connected the environmental degradation of the area with responsibility for the losses suffered by local communities.
The significance of Mandalawangi for this discussion lies in the Court’s willingness to employ environmental principles as part of judicial law-finding. The case should be understood as part of the development of the precautionary principle rather than automatically equated with every later formulation of in dubio pro natura. Maintaining this distinction prevents the historical development of the principle from being constructed through an oversimplification of terminology.
Mandalawangi also demonstrates that environmentally protective reasoning must remain grounded in factual assessment. The relationship between the management of the area, changes in environmental functions, and losses suffered by communities played an important role in the case. The broader lesson is that judicial law-finding gains its strength from the intersection between the objectives of environmental protection and the concrete circumstances established through evidence before the court.
An explicit reference to in dubio pro natura can be found in Supreme Court Decision No. 651 K/Pdt/2015 concerning PT Kallista Alam, decided on 28 August 2015. The civil case concerned land fires in the Rawa Tripa area of Aceh. The Supreme Court rejected the company’s cassation appeal. On pages 72–73, the Court’s reasoning linked the principle to uncertainty surrounding causation and the amount of compensation, while maintaining an orientation towards environmental protection and restoration.
This reasoning was developed alongside the Court’s consideration of expert testimony, site inspections, and the basis for calculating environmental losses. The ecological orientation adopted in the Kallista Alam case therefore cannot be understood as a departure from evidentiary requirements. Rather, the principle assisted the Court in addressing the limitations inherent in assessing complex environmental damage. The scope of the reasoning, particularly its references to civil and administrative proceedings, must also be considered before broader conclusions are extended to other areas of law.
The Kallista Alam case raises a broader issue concerning how environmental value is understood. In the view advanced in this article, the calculation of environmental losses should take account of the ecological functions that must be restored rather than stopping at the market value of commodities located on the land. An area may continue to generate economic returns after undergoing certain changes, but this does not answer whether its ecological functions have been maintained. Measures of business performance and measures of ecosystem health do not necessarily move in the same direction.
Developments within administrative law can be seen in the Tesso Nilo National Park case, Supreme Court Decision No. 359 K/TUN/TF/2023. In his analysis of the decision, Achmad Muchsin explains that the application of in dubio pro natura was related to the failure of the defendant public officials to carry out forest protection obligations and to evidentiary questions concerning the amount required for restoration. The analysis illustrates the use of the principle in a dispute concerning the government’s obligation to protect a conservation area.
An important lesson from the case is that the obligation to act and the accurate calculation of restoration costs should be treated as distinct questions. Uncertainty regarding the amount required for restoration should prompt further investigation and the development of a better methodology. Such uncertainty should not immediately be treated as justification for leaving a situation requiring protection unaddressed. Nevertheless, a restoration order must still contain sufficiently clear parameters to allow its implementation and supervision.
Another dimension emerged in Constitutional Court Decision No. 119/PUU-XXIII/2025, delivered on 28 August 2025. The Court provided a constitutional interpretation of the Elucidation to Article 66 of the Environmental Protection and Management Law. The protection was affirmed to cover every person—including victims, complainants, witnesses, experts, and activists—who participates in environmental protection or pursues legal remedies. Its purpose includes preventing retaliatory actions while continuing to respect judicial independence.
The Constitutional Court decision is discussed here as strengthening the conditions under which environmental protection can be pursued, rather than as a direct example of the application of in dubio pro natura. The relationship is argumentative: evidence of environmental damage depends on people being willing to provide information, give testimony, or raise objections. If participation is constrained by retaliation, the knowledge required for effective decision-making may also be obstructed.
These four cases illustrate several interconnected issues: the use of environmental principles in judicial law-finding, the assessment of ecological losses, judicial scrutiny of government obligations, and the protection of public participation. Each case has a different subject matter and legal basis. A careful reading must preserve these distinctions so that a judgment is not used to justify conclusions extending beyond the questions actually examined by the court.
Another boundary that must be maintained concerns the relationship between in dubio pro natura and strict liability. Article 38 of Supreme Court Regulation No. 1 of 2023 permits strict liability to be applied to certain categories of activities without requiring proof of fault. Nevertheless, the provision still requires proof regarding the characteristics of the activity, the existence of loss, and causation. Exemption from proving fault therefore does not amount to the elimination of all evidentiary obligations.
Conceptually, strict liability determines the basis of responsibility, while in dubio pro natura guides reasoning when relevant uncertainty exists. Both may appear within the same case, but they perform different functions. This distinction is important both in formulating claims and in judicial reasoning: a party seeking protection must establish the legal basis of the liability being sought and then explain the nature of the uncertainty requiring an ecologically protective assessment.
In criminal proceedings, greater caution in legal reasoning is required because the decision concerns the determination of guilt and the exercise of the State’s power to punish. The United Nations Human Rights Committee, in paragraph 30 of General Comment No. 32, emphasises the relationship between the presumption of innocence, the prosecution’s burden of proof, and the benefit of doubt afforded to the accused. These guarantees constrain the manner in which an ecological orientation may be applied in criminal proceedings.
On that basis, this article argues that in dubio pro natura cannot be used as a shortcut for declaring a person guilty when the elements of a criminal offence have not been proven according to law. An interpretation supporting environmental protection must continue to respect the principle of legality and the requirements of a fair trial. Likewise, a conclusion that ecological risks must be prevented does not automatically constitute a conclusion that a particular individual bears criminal responsibility.
By way of illustration, scientifically grounded concerns regarding the risks of an activity may justify an administrative assessment of the need for preventive measures, provided that there is a lawful basis for such action. The question of who committed a criminal offence, however, requires a separate examination. Maintaining this separation allows the State to respond to environmental threats while preserving safeguards against the misuse of punitive powers.
The evidentiary process itself requires careful attention to the quality of knowledge presented before the court. Two conflicting expert opinions do not necessarily carry equal explanatory weight. Judges must assess the relevance of the expert’s field of expertise, the methods employed, the adequacy of the underlying data, and the relationship between the conclusions reached and the subject matter of the case. A statement delivered with great confidence is not necessarily stronger than an opinion that openly acknowledges the limitations of its research.
Scientific uncertainty must also be distinguished from gaps in information caused by inadequate investigation. Where relevant data can still reasonably be obtained, the first requirement is to improve the investigation. It would be premature to invoke a principle addressing uncertainty before reasonable efforts have been made to understand the situation. Conversely, where limitations of knowledge genuinely cannot be resolved in the short term, the decision must explain how the risks will be managed while uncertainty persists.
Based on the discussion above, this article proposes six steps of reasoning to make the application of in dubio pro natura more structured and measurable. These steps constitute an analytical proposal rather than a set of requirements that have already been codified together in a single legal instrument.
First, decision-makers should identify the ecological interest under threat in concrete terms. Referring simply to “environmental interests” is too broad unless it is linked to the function of a particular area, water quality, habitat continuity, public health, or another identifiable interest. Clearly defining the object of protection helps determine the evidence required and the form of intervention that may be appropriate.
Second, the type of uncertainty must be expressly identified. Doubt may concern the interpretation of a legal norm, whether environmental damage has occurred, causation, the extent of impacts, or the cost of restoration. Placing all of these questions under a single general category of uncertainty makes it difficult for readers of a judgment to understand why a claim was granted or rejected. A more precise explanation also creates space for correction through appellate review.
Third, it must be determined whether the grounds for concern are reasonably substantiated. A protective principle should not be activated solely on the basis of a highly abstract possibility. Decision-makers should identify the information supporting the existence of a threat while also explaining what remains uncertain. In this way, protective measures are grounded in circumstances capable of rational examination and debate.
Fourth, the consequences of the available options should be compared. What might happen if action is delayed? Can the damage be restored, and if so, within what period? What consequences might protective measures have for communities whose livelihoods depend on the relevant activity? This comparison should reveal who receives the benefits and who bears the burdens, including situations where these are different groups.
Fifth, the measures adopted must correspond to both the authority of the decision-maker and the protection required. Depending on the type of proceeding and its legal basis, possible measures may include further investigation, adjustment of activities, impact prevention, or environmental restoration. Decision-makers should explain why the chosen measure is sufficient to address the threat. More restrictive measures require a correspondingly stronger explanation of their urgency and purpose.
Sixth, the decision should include standards for implementation. Restoration orders should, to the extent permitted by procedural law and the subject matter of the case, specify objectives, responsible parties, stages of implementation, timeframes, and the means by which success will be assessed. Without such clarity, the party ordered to act may struggle to understand its obligations, while communities will have no clear benchmark for determining whether environmental restoration has actually occurred.
Attention to implementation moves the discussion beyond the formulation of principles and towards the outcomes they are intended to achieve. A judgment recognising ecological loss is important, but its protective value depends on what happens after the judgment is delivered. A pro natura orientation should therefore be translated into restoration plans that are ecologically reasonable and capable of being monitored. The amount of financial liability should be considered together with the restoration work that those funds are intended to finance.
In policy development, a similar approach can encourage the production and preservation of relevant information before disputes arise. Environmental documents, monitoring records, and baseline data regarding the condition of an area become more useful when they are designed to support decision-making. Where baseline information is weak, proving damage after it occurs becomes considerably more difficult. Improving the governance of knowledge is therefore part of the effort to reduce uncertainty, rather than merely a technical matter separate from environmental law enforcement.
The dimension of social justice must also remain part of the assessment. Protecting an area may affect livelihoods, access to resources, and communities’ relationships with their territories. Sound ecological assessment should listen to those who are affected, including groups that lack the resources to retain experts or prepare sophisticated legal documents. A lack of resources to participate should not cause their lived experiences to be excluded from judicial consideration.
At the same time, community experience must be carefully connected to the specific issue that needs to be proven. Knowledge concerning seasonal changes, water sources, or changes in local environmental conditions may help guide the investigation. Scientific testing and local knowledge can complement one another when each is assessed according to its relevance. Courts need ways to bring the two together without assuming that either form of knowledge is always sufficient to answer every question.
Ultimately, the principle of in dubio pro natura requires both the courage to make decisions and the willingness to explain their limits. Reasonable uncertainty requires a legal response, while protective decisions must remain open to scrutiny through evidence, argument, and fair procedure. Within this framework, legal certainty grows from consistency in how cases are assessed and from clarity regarding the obligations produced by judicial decisions.
The development of environmental jurisprudence in Indonesia provides important material for building such consistency. The next task is to clarify the object of uncertainty, preserve the distinctions between different regimes of liability, and ensure that protective measures can actually be implemented. The strength of in dubio pro natura will ultimately be demonstrated when legal reasoning prevents uncertainty from becoming a justification for inaction, while at the same time producing decisions that can be defended before the public and before the generations that will one day inherit their consequences.
