REFUGEE LAW THE REGULATION AND REALIZATION IN INDONESIA By : WISMANINGSIH, SH, MH Lecturer of International Law at Faculty of Law, Jenderal Soedirman University, Purwokerto, Indonesia
History and Background of Refugee Law • The problem of refugees mainly occurs when or after the end of the war. Especially after World War II, millions of people fled in Europe, prompting the formation of several new organizations such as the United Nations Relief and Rehabilitation Administration, the International Refugee Organization, and the United Nations High Commissioner for Refugees (UNHCR)
• The UNHCR was mandated for three years to help place 1.2 million European refugees displaced by World War II. But along with the proliferation of refugee crises throughout the world, this authority is then extended every five years. • UNHCR's first mandate is limited to geographical coverage and time as mentioned above. In subsequent developments, the problems of people who were eliminated became increasingly complex and their dimensions increasingly global. UNHCR adjusts to the changes that occur. From a small and specialized institution, UNHCR has developed into an organization whose offices are spread across almost all UN member states, has an annual budget, and the ability to not only provide legal protection, but also material assistance in general emergency situations and help various deprived groups of people his rights.
Terms and Definitions of Asylum Seekers and Refugees • In the legal context, the term asylum seeker is not the same as the term refugee. • Before someone is recognized as a refugee, he is first an asylum seeker. • Refugees: A person who arrives in a country to settle there permanently; a person who immigrates. (Black's Law Dictionary)
Enny Soeprapto: • Refugees are a status recognized by international law. A person who has been recognized as a refugee will receive their obligations and rights recognized by international and / or national law. • His status as a refugee is the next stage of the departure process or the presence of someone outside his country of residence
• Article 1 of the 1951 Geneva Convention concerning the Status of Refugees: • Refugee relates to person who is well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country, and is unwilling to avail himself of the persecution of that country.
The definition of Asylum is distinguished above 1. Territorial Asylum • the authority of the state to allow refugees or political activists to enter or live in that country which also means under his protection. • This asylum is recognized by Article 14 UDHR 1948.
Territorial Assylum
2. Diplomatic Asylum Asylum provided by a foreign representative to someone who is seeking protection from the government of the country where the foreign representative is located. Example: ICJ Report 1950 (Ccolumbia v. Peru) The case of Haya de la Torre (Peru) who requested asylum at the Columbia Embassy in Lima, Peru.
International Regulations concerning Refugees • Pan American Havana Convention on Asylum 1928 • The 1954 Caracas Convention: gives the parties the right to provide asylum in the territory of other countries. • Convention on Refugees 1951, Protocol 1967. • Declaration on Territorial Asylum (MU-PBB 1967. • National provisions.
Refugees in Indonesia • Indonesia as an archipelago has been a transit point for refugees for a long time. • For approximately twenty years (1975 to 1996), the Indonesian government assisted Vietnamese refugees who were mainly in the form of placing them on Galang Island. • These Vietnamese refugees are referred to as boat people who were forced to leave the country due to domestic conflicts, namely the Vietnam war. • At present Indonesia is still accommodating many refugees (from Myanmar, Bangladesh, Afghanistan, Iran and Syria) who have come to Indonesia. Most of the refugees made Indonesia a transit country so they sought refugee status in third countries.
Arrangements concerning Refugees in Indonesia • Indonesia is not a signatory the 1951 Convention Relating to the Status of Refugees, nor its 1967 Protocol. • However, the right to seek asylum has been guaranteed in the : 1. Indonesian Constitution Article 28 G (2), which says :“Each person has the right to be free from the torture or inhuman and degrading treatment and shall be entitled to obtain political asylum”.
2. Law No. 39 or 1999 on Human Rights Article 38 : Everyone has the right to seek and receive political asylum from another country. 3. Indonesia has also ratified , among others, the following international and regional human rights instruments : a. International Covenant on Civil and Political Rights (ICCPR) 1966 b.International Covenant on Economic, Social and Cultural Rights (ICESCR)
c. Convention on the Elimination of All Forms of Discrimination against Women d.Convention on the Rights of the Child e.Convention on the Rights of Persons with Disabilities. f. ASEAN Human Rights Declaration 4. Law No. 37 of 1999 on Foreign Relation provides that refugee and asylum seekers will specifically be regulated by a presidential decree, that is Peraturan Presiden No. 125 Tahun 2016 tentang Penanganan Pengungsi.
International Human Rights Treaties on Refugees Although Indonesia being a non-signatory country to the Refugees Convention, the right of refugees and asylum seekers are theoretically guaranteed under several domestic laws and international human rights treaties : 1. Non-refoulement principles : Article 3 of the Convention Against Torture, as well as in the Indonesian Constitution 2. Non-discrimination, article 3 of the Human Rights Law No. 39 pf 1999, the ICCPR and the ICESCR 3. Freedom of religion : Article 28 E and 29 of Conxtitution, Article 22 of the Human Rights Law, Article 18 of the ICCPR, Article 14 of the CRC
4. Right to marriage : Article 28 B of the Constitution, Article 10 of the HR Law, and Article 23 of the ICCPR. 5. Right of association: Article 28 E of the Constitution , article 24 and 39 of the HR Law, Article 22 of the ICCPR, and Article 23 of the ICESCR. 6. Acces to court and legal assistance : Article 28 D of the Constitution, Article 5, 18, 66 of the HR Law, and Article 14 of the ICCPR and Law on Legal Aid No. 16 of 2011. 7. Right to engage in wage-earning employment : Article 28 E of the Constitution, Article 38 of the HR Law, and Article 6 of the ICESCR.
8. Right to housing : Article 28 E and 28 H of the Constitution, Article 40 HR Law, and Article 11 of the ICESCR. 9. Right to public education : Article 28 C and 28 E of the Constitution, Article 12 and 60 of the HR Law, and Article 12 of the ICCPR. 10.Freedom of movement : Article 27 of the HR Law, and Article 112 of the ICCPR. 11.Right of naturalization : Article 28 D and 28 E Constitution, Article 26 of the HR Law, and the Law of Nationality No. 12 of 2006.