When the Flood is Not an Act of Nature: Urban Planning Failures, State Responsibility, and the Limits of Force Majeure in Indonesia

Written by :  Zoya Windyaningrum and Muhammad Glenn Akbar

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Introduction

There is space to argue that in the current era, Indonesia's disasters are born not from natural events, but rather something more man-made. Such a definition seems to be one supported by the The UN Office for Disaster Risk Reduction (UNDRR), which defines disasters as the result of hazardous events interacting with human exposure, vulnerability, and capacity, leading to human, material, economic, and environmental losses and impacts. Marked by unchecked land conversion, shrinking green spaces, and infrastructure that has never kept pace with development, Indonesia's pattern of urban growth makes this distinction difficult to dismiss. As March brings the yearly floods all over Jakarta, one must ask: are these floods truly natural, or are they perpetuated by more human factors?

This article will examine whether Indonesia’s urban planning has turned flood and other disasters from natural hazards into foreseeable, man-made disasters. Such distinction is needed as damages resulting from preventable governance failures cannot simply be shielded behind claims of force majeure. From there, this piece will assess how international and domestic legal frameworks address disaster mitigation and response, and where Indonesia's implementation currently falls short.

Combined rescue team is seen evacuating people with inflatable boat after flood happen in Jakarta, Indonesia, March 3, 2025 - Iqro Rinaldi

Background and Cause

Urban Development Failures

Jakarta's flooding problem isn't exclusive to the 21st century, but its roots lie less in nature than in centuries of poor planning decisions that continue to shape the city today. Built on a delta through which thirteen rivers flow toward Jakarta Bay, the city was once buffered by thick mangrove forests, protection that Dutch colonization from 1619 onward dismantled, replacing it with canals that trapped sediment and accelerated land subsidence rather than managing water. That subsidence problem never stopped. Jakarta continues to sink, driven by a piped-water system that serves fewer than a quarter of its households, forcing residents to extract groundwater at rates the land cannot sustain. Green space, the most basic urban buffer against flooding, is virtually absent, despite a 2007 regulation mandating that 30 percent of the city be allocated to green open space, only 6 percent meets that standard as of October 2025. Rapid urbanization and population growth have only accelerated this, steadily replacing absorbent land with impermeable surfaces until the city has little left to do with rainfall but flood.

This pattern is not unique to Jakarta. In Batu City, large-scale conversion of forests and agricultural land into settlements, hotels, and commercial developments has sharply reduced water catchment capacity. Agricultural land fell by over 600 hectares between 2010 and 2022, while more than a thousand hectares of forest, including protected primary forest, have been degraded. In both cities, the story is the same, floods are not simply the result of heavy rain but of land that has been systematically stripped of its ability to absorb it.

Governance and Regulatory Gaps

Policy wise, legislation on urban and spatial planning in Indonesia is not lacking in ambition, however its implementation is largely far-flung from ideal. Article 14(2) of the Spatial Planning Law establishes a clear hierarchy from national down to district and city level, and spatial planning regulations are explicitly designed to control land use, protect water-absorbing ecosystems, and restrict development in high-risk areas. The Directorate General of Spatial Planning has itself documented widespread violations: buildings in flood-prone areas, encroachment on green spaces, and ignored drainage requirements, all of which directly worsen flood risk.

What drives this gap between regulation and reality is a combination of structural and institutional failures. Overlapping authority between central and regional governments creates ambiguity over who is actually responsible for enforcement, while different agencies operate with conflicting priorities and no effective coordination mechanism to resolve them. Compounding this further, developers pursue maximum returns, local governments chase economic growth, and communities bear the environmental cost of both. Enforcement failures specifically stem from three recurring factors: insufficient resources for enforcement, low public and developer awareness of regulations, and corruption in the licensing process. Without compliance, these regulations are essentially meaningless.

International Law Perspective

State Responsibility and Due Dilligence Obligation

From what has been established so far, scholarship would suggest that Indonesia's disasters fall within what is termed "environmental chronic emergencies" which are slow-building, long-term crises produced by urbanization, pollution, and unsustainable resource use. The problem is that human rights due diligence law was built for acute disasters (immediate emergencies requiring instant action) and by the time chronic emergencies become legally clear enough to trigger stringent obligations, it may already be too late to respond proportionately. The European Court of Human Rights addressed this in Budayeva v Russia, where the authorities had long been aware of the mudslide risk yet failed to implement land-use planning and protective measures, leading the court to explicitly reject the "natural disaster" defense and establishing that known environmental hazards activate mandatory duties both before and after a disaster occurs.

Where a disaster does occur, there are four specific ex post duties on the responsible state: (1) independently investigate the regulatory failures that caused the harm, not just the weather; (2) provide genuine reparations, not just token aid; (3) ensure relief and reconstruction are non-discriminatory; and (4) guarantee non-repetition through structural reforms such as fixing land-use laws and strengthening environmental enforcement.

Attribution of responsibility to states and public authorities

Under ARSIWA Articles 2 and 12, a state commits an internationally wrongful act where conduct attributable to it fails to conform with an international obligation, and critically, this includes omissions. Environmental mismanagement, tolerance of illegal extractive activity, and failure to enforce land-use regulation can therefore constitute breaches of international obligations long before a flood or landslide occurs. The ILC's 2016 Draft Articles on the Protection of Persons in the Event of Disasters further confirm that states bear a legal duty to prevent, mitigate, and prepare for disasters through domestic regulation, and where they fail, that failure is attributable to them. The difficulty, however, is that existing frameworks were not built for disasters that unfold slowly. Instruments like the Sendai Framework still approach disaster through an emergency lens, meaning that for chronic, slow-building crises like Indonesia's floods, attribution of state responsibility remains legally underdeveloped.

Beyond states, international organizations like the UN carry their own due diligence obligations in disaster management. The Haiti cholera outbreak, Kosovo lead poisoning, and Bangladesh arsenic poisoning cases all demonstrate that foreseeable harm, whether caused or simply ignored at institutional level, can and should engage IO responsibility. Yet IOs consistently shelter behind institutional immunity, and the legal frameworks meant to govern them remain unclear, voluntary, or unenforced. Due diligence as a concept could close these gaps, but it remains largely underutilized in holding IOs accountable.

Limits of the Force Majeure Doctrine

So how about force majeure? If the disasters are man-made, does that make it a foreseeable event? And knowing it can be mitigated, would it count as a controllable one? Across multiple legal systems, force majeure shares a common core: the event must be unforeseeable, beyond the control of the party invoking it, and must render performance genuinely impossible, not merely more difficult or costly. Under Indonesian civil law, R. Subekti identifies the key elements as the event being beyond the debtor's control and compelling in nature, and either unknowable at the time of contracting or at minimum not a risk borne by the debtor. Thai courts have drawn the same line more bluntly, seasonal flooding during the rainy season was rejected as force majeure precisely because it was foreseeable, and a warehouse that failed to build adequate flood safeguards was held liable on the basis that professionals bear a duty to anticipate and prepare for the risks inherent to their operations. Under ARSIWA Article 23, the position is even clearer as force majeure does not apply where the situation is due, even in part, to the conduct of the state invoking it, or where the state has assumed the risk of that situation occurring.

The same conclusion holds across under American contract laws. Whereby the burden of proving force majeure falls squarely on the party claiming it, and courts construe the doctrine narrowly. COVID-19 cases illustrate this well, in Virginia, Regal Cinemas failed to invoke force majeure because the pandemic did not physically destroy the premises as the clause required, and in JN Contemporary Art LLC v. Phillips Auctioneers LLC, the New York court only accepted COVID-19 as force majeure because a government order directly prohibited performance. Inconvenience and financial hardship are not enough. In investor-state law, National Oil Corporation v. Sun Oil Company established that the event must be non-attributable to the party asserting the defense, and critically, a state cannot invoke its own act of government as a force majeure event. 

Knowing Jakarta’s long history of flooding and the government’s persistent lack of mitigation efforts, the recurring January floods cannot be cited as force majeure. In Budayeva v. Russia, the European Court held that a state can be liable if it fails to take preventative action against a known environmental risk, especially one authorities had long been aware of. Similarly, Jakarta’s flooding is a risk the government has known about since at least the Dutch colonial era. This governance failure is not merely a policy concern but a legal one, citing ARSIWA Articles 2 and 12, as well as the ILC’s 2016 Draft Articles, we argue that omissions, such as failing to enforce spatial planning law (Law No. 26 of 2007) can constitute internationally wrongful acts. Applying the force majeure principles to Jakarta’s annual floods only bolsters our point: because these floods are man-made, they are foreseeable. Because they can be mitigated through proper spatial planning and enforcement, they are not beyond the government’s control. And because performance (preventing or reducing flood harm) is not impossible, merely costly, force majeure does not apply. Courts outside Indonesia have consistently supported the view that foreseeable, mitigable floods do not qualify as force majeure.

Preventive Frameworks and International Cooperation

Praestat cautela quam medela, meaning prevention is better than cure. This concept effectively reflects the evolution of Disaster Risk Reduction, which has shifted from a reactive model of disaster management to a preventive approach focused on reducing risks. 

A crucial milestone in this development was the Yokohama Strategy for a Safer World and its Plan of Action. These documents provided the first comprehensive international guidelines addressing natural disaster prevention, preparedness, and mitigation. They emphasized that effective disaster management centers on reducing vulnerability, strengthening local capacities, and merging risk awareness into development planning. By doing so, the Yokohama Strategy marked an essential conceptual shift by focusing on prevention and preparedness at the center of international disaster policy 

This shift represents a gradual transition from traditional Disaster Management (DM), which focuses more on response and recovery, to Disaster Risk Reduction (DRR), which addresses the underlying causes of disasters before they occur. The preventive logic underlying DRR reflects the growing recognition within the international community that the human, economic, and environmental costs of disasters can be significantly reduced through anticipatory measures rather than post-disaster recovery alone. 

The preventive approach was further strengthened in The Hyogo Framework for Action 2005-2015 (HFA). The HFA was the first detailed international instrument to define the priorities, responsibilities, and practical measures required of states, international organizations, and other relevant parties to reduce disaster risks. It identified the key areas of action, such as integrating risk reduction into national policies, developing early-warning systems, strengthening institutional coordination, and mainly promoting a culture of prevention. Its primary objective was to significantly reduce disaster-related losses to human life, livelihoods, and the social, economic, and environmental assets of communities and States.

The influence of the HFA was apparent in the growing institutionalization of disaster risk reduction at both the national and regional levels. In Southeast Asia, this development contributed to the adoption of a legally binding agreement within the Association of Southeast Asian Nations (ASEAN), particularly the ASEAN Agreement on Disaster Management and Emergency Response (AADMER). This agreement underscores the growing importance of regional cooperation in disaster prevention and preparedness, especially in areas highly exposed to transboundary and large-scale natural hazards. 

The role of international institutions 

An important example of the increasing role of regional institutions in disaster governance is the ASEAN Agreement on Disaster Management and Emergency Response (AADMER), adopted within the ASEAN framework. AADMER is the first legally binding regional agreement on disaster management that explicitly integrates disaster risk reduction alongside response and recovery measures. Its adoption is closely linked to Southeast Asia's vulnerability to natural disasters, as the region is among the most disaster-prone in the world, frequently affected by earthquakes, floods, volcanic eruptions, tsunamis, and tropical cyclones. All ASEAN member states, including Indonesia, are parties to the agreement, and it entered into force in 2009.

AADMER imposes a general obligation on the Parties to cooperate in developing and implementing measures to reduce disaster losses. Its obligations extend beyond traditional disaster response to also include preventive action. Notably, the Agreement provides for cooperation in identifying and assessing disaster risks, developing monitoring and early-warning systems, and exchanging technology and expertise. Through these provisions, AADMER reflects the broader evolution of international disaster law towards a preventive approach based on disaster risk reduction.

In addition to establishing obligations of cooperation, the AADMER strengthened the role of international environmental and human rights principles in disaster prevention, particularly the duty of States to take reasonable measures to protect life and the environment from foreseeable risks. To operationalize these commitments, ASEAN established the ASEAN Coordinating Center for Humanitarian Assistance on disaster management in 2011 as a coordinating body responsible for disaster monitoring, early warning, and emergency response. Guided by the principle of “One ASEAN, One Response,” the AHA Centre facilitates the identification of risks, information sharing, and coordinated assistance among Member States. Furthermore, in the event of a disaster, it performs functions such as collecting and analyzing risk data and providing support for national response operations. These frameworks reflect the growing expectation that Member States will not only respond to disasters but also apply preventive measures in line with disaster risk reduction obligations. 

Legal Implications and the Challenges in the Implementation of Disaster Risk Reduction

Indonesia has formally committed itself to the standards outlined by the AADMER, and its disaster management capacity has significantly improved since the Indian Ocean earthquake and tsunami, which caused major losses in Indonesia and exposed major weaknesses in the nation’s preparedness, calling for substantial legal and institutional reform. Nevertheless, the practical application of disaster risk reduction remains a challenge at the local level, as demonstrated by the recurring floods and landslides in Batu City. Batu City is a highland area located at elevations between approximately 700 and 1,700 meters above sea level, with steep terrain and high rainfall, and tropical climatic conditions that increase the risk of flood-related disasters. Despite these known risk factors, floods have repeatedly occurred in recent years, reflecting a pattern across Indonesia in which flooding is the most frequent type of disaster. These disasters damage agricultural land and infrastructure, disrupt economic activity, and, in severe cases, lead to displacement, disease outbreaks, and loss of life. These impacts demonstrate the continuing gap between formal disaster risk reduction commitments and their effective implementation. 

The causes of flooding in Batu City are both natural and human-induced. Natural factors include intense rainfall, erosion, sedimentation, limited river capacity, and mountainous topography, all of which increase surface runoff during the rainy season. However, human activity has also significantly worsened these risks. Large-scale land conversion from forest and agricultural areas to tourism and other economic uses has ultimately reduced water-catchment capacity, while deforestation in upstream areas has weakened soil absorption and increased sediment transport downstream. Additionally, rapid population growth has accelerated housing development, drainage channels have been narrowed or obstructed, and waste accumulation has further weakened the water flow, all of which contribute to recurring floods. These conditions are proof of shortcomings in spatial planning and environmental governance, despite the existence of national regulatory frameworks, including Law No. 24 of 2007 on Disaster Management and Law No. 26 of 2007 on Spatial Planning, which require risk-based planning and the protection of environmentally sensitive areas. Law No. 24 of 2007 establishes a framework for disaster risk reduction, preparedness, emergency response, and post-disaster recovery, while Law No. 26 of 2007 regulates spatial planning to ensure that land use and development consider environmental sustainability and disaster-prone areas. In line with these legal mandates, efforts have been made at the local level to introduce preventive measures, including disaster-risk mapping, early-warning systems, drainage rehabilitation, reforestation, and the construction of flood-control infrastructure. 

However, their effectiveness has been limited by budget constraints, lack of technical expertise, and weak coordination between institutions responsible for spatial planning and disaster mitigation. Although community-based initiatives such as waterway maintenance and local monitoring have been encouraged, they cannot replace the need for effective government regulation. The ongoing conversion of protected land in the Bumiaji area for tourism and settlements highlights the difficulty of balancing economic growth with environmental protection and demonstrates a failure to fully integrate disaster risk reduction principles into urban planning policies. 

The situation in Batu City highlights the legal implications of the gap between international commitments and domestic implementation. Although Indonesia has ratified the AADMER and adopted national legislation incorporating disaster risk reduction principles, recurring flood disasters indicate that the application of preventive guidelines has not been successful at the local level. This gap highlights the need for stronger enforcement of urban planning laws and more effective integration of disaster risk reduction into development policies. 

Conclusion

This study shows that although the AADMER establishes clear commitments to disaster risk reduction, their effectiveness depends on proper implementation at the domestic level. The situation in Batu City showcases how weak urban planning enforcement and environmental mismagement can turn natural risks into foreseeable disasters. The key lesson is that sucessful disaster management requires not only international cooperation, but also consistent enforcement of national laws and preventive policies.