Legal Protection for Refugees in Indonesia in the Perspective of

National and International Law

Sutiarnoto

, Jelly Leviza

, Syaiful Azam

International Law Department, Faculty of Law, Universitas Sumatera Utara, Medan, Indonesia

Private Law Department, Faculty of Law, Universitas Sumatera Utara, Medan, Indonesia

Keyword: Humanity, Human Rights.

Abstract: Protection of refugees is needed in view of humanity and with regard to the concept of human rights. Refugee

protection can be seen in the perspective of national law and the perspective of applicable international law.

Indonesia has not ratified international agreements on refugees. But the reality is that Indonesia also faces

problems with the entry of refugees. The handling of refugees in the international order was carried out,

among others, by UNHCR. The Indonesian government needs to cooperate with UNHCR in handling

refugees. Introduction.

1 INTRODUCTION

The handling of refugees in Indonesia has

experienced difficulties due to several factors. Even

though Indonesia is the main country of refugees as a

transit country, especially, to Australia. Some

obstacles become obstacles to handling refugees in

Indonesia. These constraints include:

The ratification of the 1951 Convention on the

determination of refugee status and the 1967 protocol

has not been ratified.

Until now Indonesia has not become a party to the

1951 Geneva Convention on refugees and the 1967

protocol. The parties to the 1951 Convention have

responsibility and authority in determining the status

and survival of refugees and their implications. Thus,

it is no longer the authority of UNHCR in handling

refugee problems. The position of Indonesia as a State

not a ratification of the 1951 convention caused

Indonesia to have no obligation to deal with the

problem of refugees. Under these conditions,

Indonesia has not issued a provision that has juridical

powers for refugees and asylum seekers and the

Indonesian government does not have more

involvement than as a temporary transit country and

helps find a place for refugees until they are

dispatched to the destination country offered or

repatriated.

By not being a party to the 1951 Convention and

the 1967 Protocol, the Indonesian government also

does not have the authority to provide refugee status

determination or what is commonly referred to as the

"Refugee Status Determination" (RSD), so the

regulation of issues regarding refugees is determined

by UNHCR (the UN deal with refugees) in

accordance with the mandate it receives under the

UNHCR Statute of 1950. This authority is carried out

considering that Indonesia is not a party to the

Convention in 1951. All countries including those

that have not ratified the Convention on refugees

must uphold refugee protection standards that have

become part of general international law because the

convention has become jus cogens, and no refugee

can be returned to an area where his life or freedom is

threatened.

Indonesia does not have a legal umbrella for

handling refugees in Indonesia. Whereas from day to

day the number of refugees entering Indonesia is

increasing. The absence of specific legal regulations

regarding refugees causes a legal vacuum in dealing

with refugees. At the practical level the absence of

this legal instrument has led to confusion and

overlapping authority among institutions that have an

interest in dealing with issues relating to refugees and

asylum seekers in Indonesia.

With the absence of operational legal instruments

to be a reference for interested institutions to

anticipate refugee problems and seek asylum it is

clear that the refugee legal instrument needs to be

institutionalized in the national legal system in

Indonesia.

1752

Sutiarnoto, ., Leviza, J. and Azam, S.

Legal Protection for Refugees in Indonesia in the Perspective of National and International Law.

DOI: 10.5220/0010097917521754

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1752-1754

ISBN: 978-989-758-449-7

2 METHODOLOGY

This paper uses the normative juridical method.

Normative legal research method or literature law

research method is a method used in legal research

conducted by examining the library materials in the

form of applicable legal norms contained in the

legislation or judgment decisions.

Normative juridical research methods are used in

this paper to analyze national and international legal

norms that regulate refugee protection.

3 RESULT AND DISCUSSION

3.1 Lack of Adequate Legal Protection

in Indonesia

The refugee problem in Indonesia is still positioned

from the point of view of immigration so that the

issue of refugees is only seen from an immigration

perspective. Immigration positive law in Indonesia

does not contain provisions specifically applicable

(lex specialis) for asylum seekers and refugees. For

example there is no specific immigration

administration procedure.

There are no provisions regarding temporary

residence permits, shelters, handling mechanisms and

evaluation processes. Law No. 9 of 1992 concerning

immigration designed in the late 1980s has not made

human rights an important consideration as a standard

in it.

3.2 National Law Instrument

Regarding Refugee Problems

Indonesia is a country that is not a participant of the

1951 Convention and the 1967 Protocol and

legislation in force in Indonesia does not yet

specifically highlight the problem of refugees. Even

so, the Indonesian government cannot escape the

problem of refugees residing in Indonesia. In

addition, Indonesia is an active member of the United

Nations (UN) Indonesia has the responsibility and the

law in upholding the values of Human Rights (HAM)

for both Indonesian citizens and other nations. We

can see this from the 1945 Constitution of the

Republic of Indonesia (RI 1945 Constitution), the

second principle of Pancasila which reads "just and

civilized humanity" and the fourth paragraph of the

opening of the 1945 Constitution of 1945 along with

its amendments and also the Law The Republic of

Indonesia No. 39 of 1999 concerning Human Rights

clearly shows that the government of the Republic of

Indonesia has an appreciation of the protection,

enforcement, fulfillment and promotion of human

rights.

The issue of international refugees is no exception

being the duty of the government, let alone those

international refugees are in the territory of the

Republic of Indonesia. Some laws mention the

problem of handling refugees, even though there are

no specific legislation that addresses refugees.

Although there is no specific legal provision that

addresses refugees and asylum seekers in Indonesian

law, the issue of refugees has been discussed in a

number of laws and regulations in Indonesia,

although the issue of refugees is discussed in causing

Law Number 5 of 1998.

3.3 Refugee Handling Mechanism.

The mechanism for handling refugees in Indonesia

depends on how we see these refugees and from

which point of view. So far the problem of refugees

in Indonesia is only seen from the point of view of

immigration. "There must not be a country that

refuses, returns, extradites someone to a country

where there is a strong belief / reason that he will be

dangerous because of being subjected to torture."

This problem was also discussed in Law No. 37 of

1999 concerning Foreign Relations in Article 25 to

Article 27. Article 25 of Law No. 37 of 1999 states:

1. The authority to grant asylum to foreigners is in the

hands of the President, taking into account the

Minister's consideration. 2. The exercise of authority

as referred to in paragraph (1) is regulated by a

Presidential Decree. Article 26 of Law No. 37 of 1999

states that: granting asylum to foreigners is carried

out in accordance with national legislation. As well as

taking into account international law, customs and

practices.

Article 26 states that: granting asylum to

foreigners is carried out in accordance with national

legislation. And by paying attention to laws, customs

and international practices.

Article 27 of Law No. 37 of 1999 states:

1. The President determines the policy of the

problem of refugees from abroad by taking into

account the Minister's consideration.

2. The policy principles as referred to in paragraph

(1) are regulated by a presidential decree.

Act no. 37 of 1999 concerning Foreign Relations

in Chapter VI Article 25-27 which has been used as a

reference in providing asylum and handling refugees,

in no way explains specifically how the process of

granting asylum and handling refugees must be

Legal Protection for Refugees in Indonesia in the Perspective of National and International Law

1753

carried out by the Indonesian government. The

regulations and laws made by the government

basically cannot answer the problem of refugees in

Indonesia anymore.

Indonesia is a participating country that ratifies

the Convention on Civil and Political Rights. That

ended with the birth of Law Number 12 of 2005

which was the endorsement of the convention. Article

12 paragraph (2) of Law Number 12 of 2005 states

that: ”Everyone is free to leave any country including

his country".

Article 1 paragraph (9) of Law Number 6 of 2011

concerning Immigration is stipulated in the provision

for foreigners that foreigners are people who are not

Indonesian citizens. In the Immigration Act, a refugee

or asylum seeker refers to the article that they are still

in the general category, namely called and equalized

as foreigners. That is why Indonesia has not yet

ratified the 1951 Refugee Convention because there

is still a national legal instrument concerning

refugees.

4 CONCLUSION

The mechanism for handling refugees in Indonesia

depends on how we see these refugees and from

which point of view. So far the problem of refugees

in Indonesia is only seen from the point of view of

immigration. The refugee problem in Indonesia has

not been seen from the point of view of human rights.

Refugees and asylum seekers are still compared to

immigrants. Even though the definition between

refugees, asylum seekers and immigrants is different

from each other.

The limited capacity of UNHCR in Indonesia to

deal with the increasing number of asylum seekers

and the lack of places for placement in third countries

results in long waiting times. The lack of information

and assistance available to asylum seekers and

refugees to help themselves and their families results

in frustration and depression for many of the people

served.

In general, the lack of access to the right to health

care, education and employment resulted in refugees

and asylum seekers becoming very vulnerable to

health emergencies and daily life. The waiting list for

assistance such as shelter and health care is very long.

Without the right to work, there is no means for

asylum seekers to support themselves and their

families when they transit in Indonesia or when

waiting for the placement process to a third country.

UNHCR reported that as of December 2013, only 322

vulnerable people were served, through the services

of implementing partner institutions, Church World

Service (CWS). Other civil society organizations

such as Jesuit Refugee Service (JRS) in Indonesia can

only provide limited assistance for food and shelter.

In 2013, JRS assisted 143 people located in Bogor

and Jakarta. Even for asylum seekers and refugees

who have received assistance, financial assistance

from UNHCR is reported to be very small.

Asylum seekers and refugees can only receive

services from the International Organization for

Migration.

REFERENCES

Mandalangi, J. pareira. segi-segi Hukum Organisasi

Internasional, Binacipta, bandung.

M. Boer, Hukum Internasional: Pengertian, Peranan dan

Fungsi dalam Era Dinamika Global. Alumni, bandung,

2005.

Suryokusumo, Sumaryo. Hukum Organisasi Internasional,

fakultas Hukum Unpad, Bandung, 2005.

United Nations, Basic Facts About United Nations, New

York, 2000.

Wagiman, Hukum Pengungsi Internasional, Jakarta: sinar

garfika, 2012.

Andi Ulfah Tiara Patunru, Peranan United Nation High

Commisioner for Refugees (UNHCR) terhadap

pengungsi korban perang saudara di suriah (skripsi),

Fakultas Hukum Universitas Hasanudin Departemen

Hukum Internasional, Makassar: 2014.

A. Krustiyati, “ Aspek Hukum Internasional Penyelesaian

Pengungsi Timor Leste sebagai upaya peningkatan

hubungan bilateral antara Indonesia dan timor leste”,

jurnal Yustika, Vol.II,No.1-juli 2008 (Disertasi

Program Pascasarjana Universitas 17 Agustus 1945),

surabaya, 2009.

A. Krustiyati, Kebijakan Penanganan Pengungsi di

Indonesia: kajian dari konvensi pengungsi Tahun 1951

dan Protokol 1967 Surabaya: jurnal “Law Review”,

Fakultas Hukum Universitas Surabaya. Vol. XXI,

Nomor 2. Edisi November 2012.

Lembar disposisi Direktur HAM dan Kemanusiaan, 2010,

Naskah Akademik Rancangan Undang-undang

Pengesahan Konvensi Pengungsi, (Jakarta: Direktorat

kerjasama HAM Kementerian Hukum dan Hak Asasi

Manusia Republik Indonesia).

Training Module RLD 1 june 1992 UNHCR, An

Introduction to the International Protection of

Refugees.

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