1 Introduction
Why do non-signatory states choose not to accede to the 1951 Convention1 and/or its 1967 Protocol2 (together and individually âthe Refugee Conventionâ)? This question has dominated the work of many scholars of refugee studies. From a Southeast Asian perspective, the Eurocentrism that influenced the drafting of the Refugee Convention is a frequently used justification for non-accession.3 Other common interpretations relate to the perception of refugees as a threat to national security, the fear of increased social and economic burdens, and the primacy of the principle of non-interference among countries in the region.4 However, much of the research on this topic globally has generalized the creation of international refugee law and observations of narratives on a regional level.5 Yet, as Barbour shows in chapter 4 of this volume, research specifically on non-signatory states in Asia offers very different explanations and therefore lacks a clear understanding of non-accession at the regional level. Only a few research studies have examined the relationship between individual statesâ internal dynamics and actorsâ engagement in domestic politics on the one hand, and the international refugee regime on the other.6 This chapter addresses this gap by drawing on original, empirical research on Indonesia.
As Indonesia is a non-signatory state, refugees are mainly treated under immigration laws (currently Law 6/2011) that consider them as illegal immigrants, especially due to lack of documentation.7 Permission to stay in Indonesia is based on humanitarian grounds.8 However, their circumstances are generally described as lacking effective legal protection.9 Even though Indonesia has ratified some international human rights treaties and adopted international human rights law into its national laws, the implementation of human rights instruments toward refugees varies and is inconsistent.10 At the end of 2016, the government enacted Presidential Regulation (pr) 125/2016 on the Treatment of Refugees to provide clear guidance for the many government agencies involved in dealing with refugees in the field, which included a responsibility to rescue refugees in emergencies. Although the Regulation illustrates the active role that Indonesia is playing in dealing with refugee issues, it does not mean that the government intends to follow the Refugee Convention.11 Indeed, Indonesiaâs official policy has persistently been not to accede to the Convention and not to fully adopt norms embedded in the Convention within national law and policy.
Previous research on Indonesia has identified some factors that influence such a policy: the fear that being a party to the Refugee Convention would be a âpull factorâ for more refugees coming to Indonesia; the perception of refugees as an economic burden; a concern about potential conflict with locals; and consideration of national security.12 Another explanation relates to Indonesiaâs relationship with Australia: it is believed that a policy of non-accession has the effect that Australia â a signatory country â ends up taking greater responsibility for refugees who continue their journey there.13 These earlier studies take a largely state-centric approach and thus disregard how the discourse on accession and non-accession also takes place in a multi-actor setting within Indonesian government agencies and in their interactions with non-state actors.14 Moving away from a purely state-centric stance in the discussion of accession, this chapter will explore the roles and views of various actors, including in government and civil society, and within the United Nations High Commissioner for Refugees (unhcr).
The research for this chapter took the form of document analysis and 13 interviews, conducted between July 2021 and March 2022, with officials from the Indonesian government, members or former members of the Indonesian House of Representatives, unhcr staff, and civil society organizations.15 Based on this research, which focuses on the making of pr 125/2016 and the 2011 Immigration Law, the chapter puts forward three additional factors contributing to Indonesiaâs reluctance to accede to the instruments of international refugee law. First is the narrative of Indonesia being a transit country for refugees seeking sanctuary in a country other than Indonesia. Second, a âsilo mentalityâ among government agencies impedes decision making and implementation concerning potential accession. Third, the âselective policy principleâ in immigration law echoes an anti-foreigner sentiment that is inherently linked to Indonesiaâs colonial history.
The examination shows that although Indonesia is persistently reluctant to accede to the Refugee Convention, its non-accession policy is not unanimously supported by policy actors. In fact, various government actors, along with civil society organizations and unhcr, have actively advocated for Indonesiaâs accession. More importantly, as I argue in this chapter, while a reluctance to accede to the Convention persists, the influence of these different actors has led to the gradual adoption and integration of the basic principles of international refugee law into state policy and practice.
In the following section, I discuss the efforts of government actors supported by civil society organizations and unhcr to promote accession. I examine how the âaccession agendaâ was included in two consecutive periods of the National Human Rights Action Plan (nhrap) without ever being implemented. In this section, I also discuss how the failure to execute this agenda led to another approach â the adoption of a more practical refugee policy, namely Presidential Regulation 125/2016 on the Treatment of Foreign Refugees. In Sections 3 to 5, I present and analyze my findings on factors influencing Indonesiaâs non-accession attitude, and how and why these factors emerged. In view of the link between one of the three factors (the selective policy principle) and Indonesiaâs colonial history, I engage in Section 5 with postcolonial studies literature on migration. Finally, in Section 6, I summarize my main findings and reflect on how Indonesiaâs case can contribute to explaining non-accession behavior in general, especially for states with colonial experiences.
2 Indonesiaâs Efforts to Adopt International Refugee Norms
After the initiation of political reforms in Indonesia in 1998, there was a growing move by politicians to incorporate international human rights norms comprehensively into the national legal system. This started with the adoption of the first generation of the nhrap in August 1998, which included plans to accede to international human rights conventions,16 but not the Refugee Convention.17 This was followed by the ratification of two important international human rights instruments, the Convention Against Torture in 1998 and the Convention on the Elimination of All Forms of Racial Discrimination in 1999.18 This period also saw the adoption of national human rights instruments, such as the 1998 Human Rights Charter and the Human Rights Chapter in the Constitutional Amendment (2000) which also guaranteed some important rights for asylum seekers and refugees, such as freedom from torture and the right to asylum.19
A commitment to accede to the Refugee Convention became more explicit when the nhrap 2004â2009 was adopted, with plans for the accession of the instrument by 2009.20 This development was undeniably influenced by unhcrâs efforts to promote international refugee law in the country since 1981, which, according to Soeprapto, intensified following the 1998 fall of Suhartoâs New Order, a repressive authoritarian regime known for various human rights atrocities.21 unhcr attempted to influence Indonesian actors through various activities, ranging from seminars, workshops, expert meetings, and training for various groups including government officials and members of the House of Representatives (the Indonesian parliament), to the establishment of an inter-ministry working group at the initiative of the Department of Justice and Human Rights.22 In November 2000, the working group completed its study and recommended that Indonesia accede to the Refugee Convention with reservations on some articles.23 Although it is unclear which government actors were involved in this working group, this recommendation is likely to have influenced the inclusion of the Refugee Convention accession agenda in the human rights action plan, which was administered by the same government department under a new name: the Department of Law and Human Rights.
Mohammad Anshor, the former Director of Human Rights and Humanitarian Affairs of the Ministry of Foreign Affairs (MoFA) who was involved in drafting the nhraps in the 2004â2009 and 2011â2014 periods, has explained that the key ministries agreed upon the plan to ratify/accede to all international human rights instruments, including the Refugee Convention although this latter was not a priority.24 This can be seen primarily in the 2004â2009 nhrap, in which the Refugee Convention is at the bottom of the ratification list scheduled for 2009.25 In the end, the plan was never executed during this period, and the government only acceded to two out of 12 international human rights instruments.26
In the next period of the nhrap (2011â2014), the plan to accede to the Refugee Convention was once again included, along with the other outstanding human rights instruments.27 In this period, refugee issues became more prominent in public discourse: with the increased number of refugees in Indonesia, the government, especially the Directorate General of Immigration, was being criticized for treating them mainly as illegal immigrants and placing them in immigration detention centers in accordance with the 2011 Immigration Law.28 Criticism mainly came from members of Komnas-ham, the Indonesian National Human Rights Commission, as they pushed the government to adopt a more active approach to refugee protection by acceding to the Refugee Convention.29
The demand to accede to the Refugee Convention was also made by civil society organizations within the Human Rights Working Group, a coalition of Indonesian non-governmental organizations promoting human rights.30 Yet despite repeated pressure, the government did not fulfill this plan. Instead, it proposed a regulation on refugees initiated by the Directorate of Human Rights and Humanitarian Affairs of MoFA. Soemantri, a former sub-director in the directorate who was involved in the initial stage of drafting the regulation explained:
[I]n 2010 there was increasingly strong pressure [to carry out] the ratification process (of the Refugee Convention). Komnas-ham repeatedly called on the government to ratify [it], but we also heard strong arguments [to the contrary] ⦠and this was therefore an alternative ⦠to draft a pr (presidential regulation).31
Soemantri further referred to reasons for non-accession related to the perception of refugees as an economic burden while the country still had its own issues of poverty, and the concern of the possible social impact identified by previous studies, as explained at the beginning of this chapter.32 Thus, the demand for accession from Komnas-ham and civil society to implement the nhrap was answered instead by a presidential regulation on refugees. In other words, this regulation (which later became PR 125/2016) was seen as a middle way to respond to the pressure of acceding to the international refugee instruments on the one hand, and the need to tackle refugee issues in the field on the other, thus adapting global norms to domestic regulation.33
However, drafting the regulation itself was quite a complex and contentious process, from its beginnings in 2010 until its final adoption in late 2016. As the initiator of this regulation, MoFA at first proposed an integrated Standard Operating Procedure or manual as common guidance for the relevant government agencies to deal with refugees, rather than a presidential regulation as mandated by the 1999 Foreign Relations Law.34 As a manual, the earlier drafts of the regulation contained all aspects of refugee handling, from general principles to technical details on the tasks and responsibilities of every key agency, including coordination between them.35 It also explicitly included some basic principles of refugee protection taken directly from the Refugee Convention, especially non-refoulement, non-discrimination, and non-penalization, as well as the best interests of the child in the case of refugee children and some fundamental rights suggested by civil society such as access to education and healthcare, as well as rights for refugees with disabilities.36 This shows that MoFA, with the involvement of civil society, tried to adopt the core substance of the Refugee Convention in the manual as a compromise to its policy of non-accession and in the context of the actual problems faced by government agencies at the time â namely a lack of coordination between them in the treatment of refugees.37 However, when the draft was discussed at the ministerial level, it not only shifted in form, from manual to presidential regulation, but also had almost all human rights provisions removed, including principles derived from the Refugee Convention, amid delays, deadlocks, and compromises among the agencies involved. Why is Indonesia reluctant to accede to the Refugee Convention and engage with its key norms? I will explore three different factors in the following sections.
3 Transit Country Narrative
In this section, I argue that the narrative of Indonesia as a transit country justifies a non-accession stance in two interconnected contexts. First, it relates to the common motive of refugees who perceive Indonesia as a transit point to Australia. In this state of transit, it is argued, Convention protection would not be needed. Second, Indonesia perceives itself as inherently a transit country, for which accession to the Refugee Convention would have significant unintended consequences.
In the first context, the transit country narrative generally stems from Indonesiaâs geographical position in refugee migration routes: âIndonesiaâs geographical position near Australia and New Zealand has resulted in Indonesia becoming a transit country for asylum seekers and refugees to Australia and New Zealand as destination countries.â38 Asylum seekers, mainly from the Middle East, arrive at irregular intervals by boat, with Australia as their most common ultimate destination. As we already know, Indonesia hosted more than 100,000 Indochinese refugees between 1975 and 1995.39 Then, around 1996, asylum seekers from Middle Eastern countries began arriving in Indonesia en route to Australia. Until 2000, numbers were still modest with fewer than 1,000 arrivals.40
In 2001, the number of asylum seekers and refugees increased significantly, and those leaving Indonesia for Australia peaked at 5,516.41 This prompted an IndonesiaâAustralia partnership to intercept them in Indonesia under the 2001 Regional Cooperation Agreement, which also involved the International Organization for Migration (iom) who provided financial assistance and accommodation for those affected. In 2007, another bilateral agreement â the Irregular Immigrant Management and Care Project â was concluded, leading to more intensive use of the immigration detention centers financed by iom, also from Australian funds.42 unhcr was also informally involved in this cooperation, conducting refugee status determination (rsd) in the absence of a national asylum mechanism.43 This development illustrates the Indonesian authoritiesâ perception of accession to the Refugee Convention as being superfluous for a country that is merely a transit point. A former immigration high official suggests that Indonesiaâs accession to the Refugee Convention is probably more in the interests of Western countries, especially Australia, rather than in Indonesiaâs.44
However, government actorsâ narrative on Indonesiaâs transit status neglects refugeesâ own motives. Although resettlement in Australia was a common desire for refugees in Indonesia, research has shown that what pushed them to take dangerous maritime journeys was much more varied. Besides the fact that Indonesia does not accept refugees permanently, being a non-signatory to the Refugee Convention, their motivation to continue their journey was also because of the difficulties they faced in Indonesia, such as long waiting times for unhcrâs rsd for resettlement to third countries and the poor conditions in which they found themselves while they were in Indonesia.45 Thus, while the transit country narrative to some extent makes sense as a justification for not acceding to the Refugee Convention when it comes to the migration route of refugees in Indonesia who end up in Australia, it neglects the agency of refugees to choose the path they deem safe, including to remain in Indonesia in the long term.
The close cooperation between the two countries on this issue lasted until 2013 when Australia started the military-led Operation Sovereign Border by turning back intercepted refugees arriving by boat.46 Moreover, in 2014, Australia announced a non-resettlement policy in which asylum seekers in Indonesia registered after July 1, 2014 cannot be resettled in Australia.47 All these policies sought not only to discourage asylum seekers and refugees from making the maritime journey to Australia but also make them stuck in Indonesia by offering a very low number of resettlement quotas.48 Some observers argue that this development means that Indonesia can no longer be considered as a transit country for refugees destined for Australia, but is now a de facto destination country.49 Yet, the transit country narrative is still maintained to justify non-accession to the Refugee Convention. As Soemantri from MoFA states:
We are not a destination country, we tend to be a transit country. By ratifying it [the Refugee Convention], it means that we open ourselves to become a destination country while in terms of economy ⦠we donât have that kind of capacity; we still have a lot of poor people that we have to deal with. Then from the sociocultural aspect, we also need to increase our capacity for social integration and other things, which is not easy ⦠Even though we are not a state party to the Refugee Convention, we respect the principles and implement them properly and this Presidential Regulation (pr 125/2016) is an effort for us to be able to protect the human rights of refugees.50
The statement above leads us to the second implication of the transit country narrative, which underpins non-accession as Indonesiaâs policy of avoiding the unintended consequences of being a state party, especially the perceived economic and social burdens. These burdens would include the financial contribution expected from a state party as well as the capacity demands of conducting rsd:
[If we become a state party] We have to contribute funds as a member and then process [asylum claims] ourselves. In terms of funding, we are not ready to process it ourselves; there must be people who are trained for that, and not all can ⦠The process at unhcr is not simple. They [asylum seekers] submit [asylum claims], then appeal, and so on; thatâs the process. Those are some considerations for us not to ratify â¦51
On the one hand, Indonesiaâs perceived inability to shoulder such burdens of acceding to the Refugee Convention to some extent reflects Daviesâs argument about Southeast Asian countriesâ ârelatively honestâ motivations for their non-accession attitude.52 The burdens perceived by Indonesia would impede its treatment of refugees, so that accession to the Refugee Convention would not in fact improve the outcome for refugees. Yet, the burdens associated with being a state party can be eased by declaring reservations to the Convention. Among signatory states, such reservations are quite common: unhcr notes that by 2024, almost half had declared reservations, including some on core refugee rights such as the right to decent work, freedom of movement, and education.53 Moreover, the perception that the processing of asylum claims automatically transfers to the state authority if Indonesia becomes a party is not entirely justified. unhcr conducts rsd in many signatory states due to their unwillingness or lack of capacity. Thus, if Indonesia were to become a party to the convention but were unwilling or not ready to conduct rsd, this task could still be done by unhcr or through cooperation.
In general, Indonesiaâs perceived role as a transit country is thus used to justify non-accession and to limit its obligations toward refugees. The government considers most responsibilities toward refugees to be borne by unhcr in terms of protection and by iom for financial assistance and accommodation. Its own responsibility, meanwhile, is simply to allow them to stay in Indonesia temporarily in cooperation with these two organizations.54 These, among other duties, are regulated in pr 125/2016.55 Thus, the drafting of the pr can be seen as Indonesiaâs effort to re-emphasize its role as merely a transit country, standardizing its treatment of refugees without having the onus of the responsibilities that come with being party to the Refugee Convention.56
4 Government Silos
Another factor influencing Indonesiaâs stance of non-accession is the prevailing silo tendency among government agencies â each promoting their own priorities and interests. In Indonesian, silos in the context of government are called ego sektoral57 or ego sentris.58 Such silos not only appear in refugee-related matters or migration governance,59 but are prevalent in bureaucracy in general.60 This silo tendency essentially entails each sector agency operating independently within rigid hierarchical structures, disregarding other sectorsâ policies and regulations in the pursuit of its own interests.61 In other words, it concerns bureaucratic infighting.62 This section will show that there are indeed government actors who support Indonesiaâs accession to the Refugee Convention, but those opposing such accession hold more political power than those in favor. As I will discuss, there are some reasons why even those supporting accession appear unconvinced.
The silo tendency, when it comes to rejecting the accession to international refugee law instruments, is not something new. In the past, especially with regard to the treatment of Indochinese refugees, unhcr actively encouraged the Indonesian government to accede to the Refugee Convention.63 However, this effort faced a deadlock, mainly because the
UNHCR had perhaps not always tackled the problem right way. In Indonesia, one had to reckon with several interested quarters: there was not only the president and the Minister of Foreign Affairs, there was also the Army, State Security, etc., all of whom had to be convinced, not that there were advantages (material or otherwise) in adhering to the refugee instruments, but that it would be an ostentatious act of solidarity with the international community. We therefore needed to promote a political will rather than try and pull off a technocratic stunt.64
Taking account of the silo tendency, unhcr and the government, through MoFA, then agreed to disseminate knowledge on international refugee law more broadly. Lectures were organized in universities and colloquiums so that national figures and officials from many agencies could familiarize themselves with this issue. This mission had one ultimate goal: Indonesiaâs accession to the Refugee Convention.65 Although this kind of program continued until the 2000s and resulted in a very important step in the form of the nhrapâs accession plan, it had little effect on the concrete action for accession.66 It is not the case that unhcr does not have support for accession from government actors, but rather that actors who resist such encouragement have more supporters within the Indonesian bureaucracy.
As mentioned earlier, accession to the Refugee Convention was an official plan for the Indonesian government, appearing on the agenda in two periods of the nhrap. Nevertheless, the silo tendency was one of the reasons why the government did not realize the plan and instead enacted pr 125/2016 as a compromise to tackle refugee issues. Not all government agencies involved supported the governmentâs plan for accession, as Muhammad Hafiz from the Human Rights Working Group stresses in an interview with me: âThe tendency within the government itself (to accede to the Refugee Convention) was not yet unanimous.â67
Although there are nine government agencies and more than 400 regional governments involved in the implementation of the nhrap,68 the drafting of such planning, especially for accession to international human rights instruments, does not always involve all of them. In the case of the 2011â2014 nhrap, the process was centered around three key ministries, namely the Ministry of Law and Human Rights as the coordinator, the Ministry of Home Affairs, and the MoFA.69 As the nhrap should be enacted by a presidential regulation, the drafting process involved many government agencies with different interests and a notable lack of public participation. Interestingly, in the 2010 drafting process of the nhrap 2011â2014, most government agencies vetoed the plan to accede to the Refugee Convention, even though it was included in the final version.70 It is unclear who proposed the plan to accede to the Refugee Convention. As Hafiz further explained:
In the previous nhrap [where the accession plan to the Refugee Convention was included], it [the accession plan] was either top-down [proposal] from the nhrap Committee, Ministry of Law and Human Rights, and others, or it was bottom-up from other related ministries/agencies. If we check, all the conventions ⦠were included, including the Convention on Protection from Enforced Disappearances and the Rome Statute. Thatâs why Iâm a bit doubtful who drafted [the accession plan] in the nhrap.71
Based on his interaction with the MoFA, Hafiz suggested that the accession agenda in the nhrap was not a priority, with various arguments put forward for why such a policy should not be pursued. The arguments sometimes came from the internal MoFA or from other ministries/agencies and focused on the social and economic burdens and the handover of rsd, as explained in the previous section.72 MoFAâs stance indicates a silo tendency not only in relation with other ministries but also within the MoFA itself. In a different context, tension within MoFA regarding the Refugee Convention can be seen in the initial process of drafting pr 125/2016. Febi Yonesta, who was involved in the process, reflected:
In the deliberation, we argued more with [the Directorate of] Diplomatic Security than the Directorate of Human Rights. The Directorate of Human Rights has the same perspective as us. Previously, in the draft, the principle of non-refoulement was included, and the definition [of refugee] from the 1951 Convention was included ⦠The Directorate of Human Rights has an interest [in refugee protection]. However, when it comes to MoFA (in general), the interests are different ⦠Diplomatic Security (Directorate) is different. (Their) perspective is the security approach, [such as] handling, humanitarian response, emergency response, something like that.73
When I interviewed Mohammad Anshor, the former Director of Human Rights and Humanitarian AffairsâMoFA, who was also involved in drafting the 2004â2009 and 2011â2014 nhraps, he suggested that the plan to include all international human rights instruments was agreed upon by the key ministries, especially MoFA through its human rights directorate which is the national focal point for international human rights matters:
[B]efore I became Director of Human Rights, I was the head of the (human rights) sub-directorate ⦠We (planned) to ratify all the major human rights instruments. So, I started with the Disability [Convention], and it was ratified quickly ⦠Then, the Migrant Workers [Convention] had a unique process, but I was happy that I managed to get the support of the Ministry of Labor ⦠Then, Refugees [Convention and Protocol]. I didnât give top priority because, okay, itâs important, but in principle, the Refugee Convention and Protocol have become customary international law and part of our national law, especially [the principle of] non-refoulementâ¦74
The lack of priority given to accession to the Refugee Convention suggests not only that the Human Rights Directorate of MoFA was not confident that it could be realized because of lack of support from other departments, but that accession was not even really necessary: in his view, by virtue of its place in international law, the Convention was part of national law. This argument also emerged in other non-signatory states: in Lebanon, accession to the Refugee Convention was considered superfluous due to its perceived overlap with other human rights instruments.75 The argument is valid in the case of the principle of non-refoulement, which has been recognized as a customary international law or even jus cogens.76 Moreover, the principle is also considered a legal obligation, especially under the Convention Against Torture to which Indonesia is a party.77 However, such a perception is not entirely correct because protection under the Refugee Convention has a much broader scope than simply the non-refoulement obligation, covering refugeesâ basic liberties, such as the permission to work and other fundamental rights.78 Nevertheless, the opinion that customary international law or other international treaties impose legal obligations on Indonesia in its treatment of refugees is not commonly accepted within Indonesian bureaucracy. Most Indonesian officials instead believe that Indonesia has no legal obligation to refugees due to its non-signatory stance.79 In general, the influence of government silos on non-accession has remained in place over time and is unlikely to be resolved in the near future.
5 The Selective Immigration Policy Principle Rooted in Indonesiaâs Colonial History
As explained in the introduction, the negative sentiment toward foreigners, especially refugees, is one of the reasons why many Asian countries, including Indonesia, have not acceded to the Convention or generally do not want to accord refugees more durable solutions.80 In this section, I will unpack how, in Indonesia, this negative sentiment is related to the general immigration principle, the so-called kebijakan selektif [selective policy], which is intrinsically linked to the countryâs colonial history.
As the literature on international migration policy making in postcolonial states shows, the colonial experience has a significant influence. According to Koh, colonial legacies and, among other things, racial ideologies impact the daily lives of people in former colonies, including in migration governance.81 Sadiq and Tsourapas argue that when postcolonial states developed their migration-control policies, they adopted many colonial or imperial practices, including regulatory frameworks and institutional borrowing due to lack of capacity in structures of state.82 Although the intention of these newly independent states was to remove former colonial practices, a racialist approach toward different population groups often persisted.83
In current (Law 6/2011) and previous (Law 9/1992) immigration law, the selective policy principle is understood as a filter through which Indonesia only allows foreigners on its territory who âprovide benefitâ and âdo not jeopardize national security and public order.â84 Law 9/1992 places a stronger emphasis on political stability as part of national security concerns by only accepting foreigners âwho are not hostile to the Indonesian people and stateâ [yang tidak bermusuhan terhadap rakyat dan negara ⦠Indonesia â¦]. This stems from when Indonesia was under Suhartoâs authoritarian regime, which was highly suspicious of foreign entities supporting democratization and human rights advocacy.85 The wording of this principle changed slightly in Law 6/2011, which added an additional phrase: the selective policy âwith respect for human rights valuesâ intended âto [secure] the national interest.â86 The addition of âhuman rights valuesâ in the new formulation of the selective policy is intended to balance the concept of national interest with the human rights instruments that have been adopted expansively in the Indonesian legal system since the 1998 political reform.87 However, instead of broadly considering migrants, including refugees, within human rights frameworks, this new conceptualization of the selective policy was intended to protect Indonesian citizens from the prohibition of re-entering the country, a liberty that the previous law was accused of breaching.88 Thus, the human rights aspect of the selective policy focuses more on citizensâ rights than on people on the move in general.
However, the refugee issue was one of the topics debated in the process of making Law 6/2011, which related to Indonesiaâs stance as a non-signatory to the Refugee Convention. As the earlier version of the Bill drafted by the government had no provisions for refugees, some members of the House of Representatives proposed some clauses to take note of their specific circumstances.89 However, the proposal was rejected without any extensive debates by the government or majority representatives, including those from the two biggest political parties in the House: the Democratic Party, a moderate-right political party, and the Indonesian Democratic Party of Struggle, a nationalist political party.90 Thus, the final version of the Bill that became Law 6/2011 on Immigration does not contain any provisions for refugees or asylum seekers and frames them generally as illegal immigrants.
Interestingly, it is Indonesiaâs non-signatory status that appears to have prevented the 2011 Immigration Law from regulating refugees. When I asked why, Muhammad Indra, a former acting Director General of Immigration, explained: âWe avoid getting in touch with the Refugee Convention ⦠Maybe one day we will ratify [accede to it].â91 Moreover, Deni Hariatna, an expert member of staff in the House of Representatives who helped with the law-making process, explained to me that âit was agreed that we skip [the discussion of] refugee arrangements [because] we have no binding obligations regarding refugee issues. In fact, if we regulate the details, it means that we are heading toward agreeing with the refugee law/Convention, right?â92
The interviews suggest that including any provision on refugees in the Immigration Law is considered an implicit adoption of the Refugee Convention. For the immigration authorities, rejecting any inclusion of provisions on refugees in such a law is influenced by the selective policy principle. When I asked further about refugees coming to Indonesia through regular channels, such as by airplane, Indra explained:
Indonesia has not ratified (the Refugee Convention), so we can reject [refugees arriving by air] ⦠the normal concept of immigration law [selective policy] applies to foreigners ⦠[only for those] who are beneficial to development and do not disturb security and [public] order. It will disturb the order if they [refugees] come in droves.93
When I traced when and how the selective policy principle emerged, I found that it was adopted for the first time in Emergency Law 8/1955 regarding Immigration Criminal Offences, the first immigration law after independence that modified immigration criminal offenses from the Criminal Code of the Netherlands East Indies. In the Explanatory Memorandum of this law, the colonialâs âopen-door policyâ aimed to âattract foreign capitalâ and, consequently, âneeded foreign workers that competed with local workers so that labor wages could be further reduced.â94 It further summarizes the policy:
[T]he more poor people who come from abroad, the more profitable for foreign capital ⦠Therefore, in the Netherlands East Indies Penal Codes, the punishment against people who were smuggled here is not so severe, and it is even very light, categorized as âOvertredingenâ [light offense].95 Our country no longer adopts an âopen deurâ [open door] or âmassaleâ [massive] policy toward foreigners, but rather a âfilter policyâ or selectief politiek [selective policy] based on different interests, perspectives, and goals.96
The selective policy narrative was developed as a counter policy to colonial immigration policy following Indonesian independence. This took place after the (re)establishment of the Unitary State of the Republic of Indonesia in 1950, following the fall of the Republic of the United States of Indonesia, a federation established under the 1949 transfer of sovereignty agreement with the Kingdom of the Netherlands. According to the Directorate General of Immigration, the selective policy is based on protecting national interests and emphasizes the principle of providing greater protection to Indonesian citizens.â97 It can be suggested that the selective policy changed the direction of colonial policies, which had previously favored foreigners over Indonesian natives for economic reasons; the new policy empowered Indonesian citizens, echoing the anti-foreign spirit which was unsurprisingly dominant at the time.
The original character of the principle, which reflected anti-foreign sentiments in some respects, is still influential today. For example, in a discussion about the inclusion of refugee provisions in the 2010â2011 Immigration Bill, Fahri Hamzah, one of the initiators of such provisions and Chairperson of the House of Representativesâ Working Group on Immigration Bill states:
[W]hen I and some of my colleagues in the House wanted to take a stand [to accept and regulate refugees] ⦠we were accused of having international agendas ⦠as now people suspect the entry of Chinese workers as the formation of the fifth [military] force98 which will one day carry out a coup ⦠so this fantasy has not yet gone away in the minds of our politicians â¦99
In addition, some nationalist representatives in the House also argued that accepting refugees would reduce the stateâs capacity to serve its citizens.100 In very extreme words, one of the lawmakers stated during the parliamentary debates that âaccepting one refugee means Indonesia sacrifices one citizen â¦â101 It can be argued that although the selective policy has evolved significantly beyond a mere counterbalance to colonial policy, its roots in anti-foreigner sentiment mean that any effort perceived as a shift to a more supportive policy towards migrants, including accession to the Refugee Convention, is likely to be rejected.
Although the selective policy principle was established to counter the Dutch colonial immigration policy, it arguably mimics its colonial racial approach in the opposite direction. The Dutch East Indies policy gave more privileges to Europeans and âforeign Orientals,â such as Chinese and Arabs, against pribumi [natives].102 Although the subordinated people are now different, the anti-foreigner sentiment prevails in the new immigration policy, and underpins Indonesiaâs non-accession stance.
6 Conclusion
In this chapter, I have emphasized three factors that have influenced Indonesiaâs stance of non-accession to the Refugee Convention: the transit country narrative, silo mentality among government actors, and the selective immigration policy stemming from its colonial history. These are intertwined with factors already identified in the existing literature, such as the perception that refugees are socio-economic burdens and that they threaten national security. As I demonstrated in the analysis, the countryâs persistent non-accession stance is a dynamic rather than a static issue: accession proposals were repeatedly included in the governmentâs formal plans at the instigation of pro-human rights actors but had to be compromised when faced with the dominant voice of opposing actors. At the same time, the need for practical guidance so that all agencies could treat refugees in a standardized manner could not be ignored, resulting in the trade-off with non-accession that was pr 125/2016.
The analysis shows that a silo tendency among government actors determined the compromise â one between executing plans to accede to the Refugee Convention and creating a regulation on refugees justified by the narrative that Indonesia is just a country of transit. I demonstrate that this trend was not new, and that it was also a factor that prevented Indonesia from acceding to the Convention during the countryâs experience with Indochinese refugees. This is not the only historical factor influencing its non-accession stance: a selective immigration policy rooted in the anti-foreigner sentiment of the countryâs colonial history is also relevant to the discourse on Indonesian accession.
It is the legacy of this colonial history â affecting the perception of refugees as burdens, and deep-rooted anti-foreigner sentiment â that makes Indonesiaâs experience different from countries in the Global North. As Indonesia is not the only state that has experienced colonialism, its example might shine a light on other postcolonial statesâ attitude to the Refugee Convention or to refugees in general.103 Although the reasons for non-accession may vary, these statesâ motives might be similarly shaped by their former colonial status. Further historical and empirical investigations are needed to examine how colonial-era factors continue to influence the evolvement of refugee policies in postcolonial states more generally, and accession to international refugee law instruments more specifically.
Convention relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954) 189 UNTS 137.
Protocol relating to the Status of Refugees (adopted January 31, 1967, entered into force October 4, 1967) 606 UNTS 267.
Sara E Davies, Legitimising Rejection: International Refugee Law in Southeast Asia (Martinus Nijhoff 2008) 18, 225.
ibid 10; Sébastien Moretti, The Protection of Refugees in Southeast Asia: A Legal Fiction? (Routledge 2022) 26â36.
Maja Janmyr, âThe 1951 Refugee Convention and Non-Signatory States: Charting a Research Agendaâ 33(2) International Journal of Refugee Law 188.
See especially Pia Oberoi, âSouth Asia and the Creation of the International Refugee Regimeâ (2001) 19(5) Refuge <https://refuge.journals.yorku.ca/index.php/refuge/article/view/21228> accessed July 20, 2024; Maja Janmyr, âNo Country of Asylum: âLegitimizingâ Lebanonâs Rejection of the 1951 Refugee Conventionâ (2017) 29(3) International Journal of Refugee Law 438.
Bilal Dewansyah and Irawati Handayani, âReconciling Refugee Protection and Sovereignty in ASEAN Member States: Law and Policy Related to Refugee in Indonesia, Malaysia and Thailandâ (2018) 12(4) Central European Journal of International and Security Studies 477.
Susan Kneebone, Antje Missbach and Balawyn Jones, âThe False Promise of Presidential Regulation No 125 of 2016?â (2021) 8(3) Asian Journal of Law and Society 431, 441â42.
Nikolas Feith Tan, âThe Status of Asylum Seekers and Refugees in Indonesiaâ (2016) 28(3) International Journal of Refugee Law 365.
For example, regarding refugee reception, refoulement practices occasionally happen even in emergencies like maritime arrivals. Moreover, refugees also have limited access to formal education and healthcare, and do not have the right to work. Tan (n 9) 375â76; Azadeh Dastyari and Asher Hirsch, âThe Ring of Steel: Extraterritorial Migration Controls in Indonesia and Libya and the Complicity of Australia and Italyâ (2019) 19(3) Human Rights Law Review 435, 443.
Interview with Achsanul Habib, Director of Human Rights and Humanitarian Affairs, Ministry of Foreign Affairs 2019â2024 (Jakarta, Indonesia, February 11, 2022).
Penelope Mathew and Tristan Harley, âRefugee Protection and Regional Cooperation in Southeast Asia: A Fieldwork Reportâ (The Australian National University, March 2014), 15 <https://openresearch-repository.anu.edu.au/server/api/core/bitstreams/468e096a-3cc1-4522-8b96-c2df944de19e/content> accessed July 8, 2024; Carly Gordyn, âPancasila and Pragmatism: Protection or Pencitraan for Refugees in Indonesia?â (2018) 2(2) Journal of Southeast Asian Human Rights 336, 344, 350; Fitria Fitria, âPerlindungan Hukum Bagi Pengungsi di Negara Ketiga: Praktik Indonesiaâ (2015) 2(1) Padjadjaran Jurnal Ilmu Hukum [Journal of Law] 113â14.
Gordyn (n 12) 349â50.
ibid 350 and Fitria (n 12) 113 have identified different views about the Refugee Convention among government officials in the different ministries/agencies. However, they did not elaborate further on why or how these different views contributed to the non-accession policy.
Empirical data used in this chapter are mainly from my PhD project at Leiden University concerning the law making and discretionary implementation of Indonesian asylum and refugee laws. See Bilal Dewansyah, âAsylum and Refugee Law in Indonesiaâ (2023) 14(6/7) Asiel & Migrantenrecht 358. For the document analysis, I also used some UNHCR archive records. I thank Maja Janmyr for providing me with these documents.
Before this period, Indonesia had ratified only two main international human rights instruments: the Convention on the Elimination of All Forms of Discrimination Against Women (adopted December 18, 1979, entered into force September 3, 1981) 1249 UNTS 13, signed by Indonesia on July 29, 1980, ratified September 13, 1984 and the Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990), 1577 UNTS 3, signed by Indonesia on January 26, 1990, ratified September 5, 1990.
Majda El Muhtaj, âA Critical Analysis of The Indonesian Human Rights Action Plan 1998â2020â (2022) 13(3) Jurnal HAM 519, 523â34.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June 26, 1987) 1465 UNTS 85, signed by Indonesia on October 23, 1985, ratified October 28, 1998, and the International Convention on the Elimination of All Forms of Racial Discrimination (adopted March 7, 1966, entered into force January 4, 1969) 660 UNTS 195; Indonesia acceded on June 25, 1999.
Bhatara Ibnu Reza, âChallenges and Opportunities in Respecting International Refugee Law in Indonesiaâ in Angus Francis and Rowena Maguire (eds), Protection of Refugees and Displaced Persons in the Asia Pacific Region (Ashgate 2013) 121â22.
Annex of Presidential Decree 40/2004 on the 2004â2009 NHRAP.
Enny Soeprapto, âPromotion of Refugee Law in Indonesiaâ (2004) 2(1) Indonesian Journal of International Law 57, 62. For more information on human rights abuses during the New Order, see Amnesty International, âIndonesia: Power and Impunity: Human Rights under the New Orderâ (ASA 21/017/1994, September 1, 1994) <www.refworld.org/reference/countryrep/amnesty/1994/en/91506> accessed October 1, 2024.
ibid 63â64.
The reservation was suggested for arts 8, 14, and 26 of the Convention; ibid 64.
Interview with Mohammad Anshor, Director of Human Rights and Humanitarian Affairs of MoFA 2010â15 (online, August 2, 2021).
See Soeprapto (n 21) 65.
Abdul Muthalib and others, âEvaluasi Pelaksanaan RANHAM 2004â2009 dan Rencana Ratifikasi Optional Protocol to the Convention against Torture (CAT) dalam, RANHAM 2004â2009 dan Perencanaan RANHAM 2010â2014â (Task Force Pemantauan RANHAM, 2010) 44 <www.neliti.com/publications/424/evaluasi-pelaksanaan-ranham-2004-2009-dan-rencana-ratifikasi-optional-protocol-t> accessed July 15, 2024.
Presidential Regulation 23/2011 on the 2011â2014 NHRAP.
Banu Abdillah, âUrgensi Ratifikasi Konvensi Pengungsiâ (2012) 1(x) Wacana HAM 8.
ibid.
Interview with Muhammad Hafiz, former Program Manager of Human Rights Working Group (online, July 6, 2021).
Interview with Acep Soemantri, former Sub-Director for Economic, Social and Cultural Rights of MoFA (online, August 5, 2021). Authorâs translation of this and all subsequent quoted interviews.
ibid.
Qatrunnada Daysa Fitri and Dwi Ardhanariswari Sundrijo, âThe Adaptation of Global Norms: The 1951 Refugee Convention in Indonesiaâ (2024) 4(2) Journal Eduvest 570.
Interview with Masni Eriza, former Sub-Director for Humanitarian Affairs of MoFA (online, August 11, 2021); Interview Soemantri (n 31); Interview with Febi Yonesta, former Founding Coordinator of SUAKA, an Indonesian association for the protection of refugee rights (online, July 9, 2021).
(Draft) Prosedur Tetap Terpadu tentang Penanganan Orang Asing Pencari Suaka dan Pengungsi (nd) 15, 22.
ibid 19; Draft Prosedur Tetap Penanganan Pencari Suaka dan Pengungsi Di Wilayah Indonesia, November 8, 2011, Part III (5), (7).
Interview with Hafiz (n 30); Interview with Soemantri (n 31); Interview with an official at MoFA (online, August 27, 2021).
The Explanatory Notes of Draft of Presidential Regulation concerning The Treatment of Asylum Seekers and Refugees, 17 September 2014, para 1.
Antje Missbach, Troubled Transit: Asylum Seekers Stuck in Indonesia (ISEAS-Yusof Ishak Institute 2015) 36.
ibid 44.
ibid 45.
Susan Kneebone, âAustralia as a Powerbroker on Refugee Protection in Southeast Asia: The Relationship with Indonesiaâ (2017) 33(1) Refuge 29, 32; Amy Nethery, Brynna Rafferty-Brown and Savitri Taylor, âExporting Detention: Australia-Funded Immigration Detention in Indonesiaâ (2013) 26(1) Journal of Refugee Studies 88, 95â96.
Savitri Taylor and Brynna Rafferty-Brown, âDifficult Journeys: Accessing Refugee Protection in Indonesiaâ (2010) 36(3) Monash University Law Review 138.
Interview with Muhammad Indra, Acting Director General of Immigration 2009â11 (online, September 19, 2021).
See, for example, Sally Clark, âSeeking Asylum: Factors Driving Irregular Migration from Indonesia to Australia during the Fifth Wave 2008â2013â (2019) 38(1) Refugee Survey Quarterly 83, 100â07.
Andreas Schloenhardt and Colin Craig, ââTurning Back the Boatsâ: Australiaâs Interdiction of Irregular Migrants at Seaâ (2015) 27(4) International Journal of Refugee Law 536, 548.
Anne McNevin and Antje Missbach, âLuxury Limbo: Temporal Techniques of Border Control and the Humanitarianisation of Waitingâ (2018) 4(1â2) International Journal of Migration and Border Studies 12, 18.
ibid.
Antje Missbach and Gerhard Hoffstaedter, âWhen Transit States Pursue Their Own Agenda: Malaysian and Indonesian Responses to Australiaâs Migration and Border Policiesâ (2020) 3(1) Migration and Society 1, 3.
Interview with Soemantri (n 31). A similar narrative also appeared in my interview with other government officials (Interview with Wicipto Setiadi, former Director General of Legislation, Ministry of Law and Human Rights (online, December 15, 2021); Interview with Eriza (n 34); Interview with Indra (n 44).
Interview with Indra (n 44).
Davies (n 3) 135.
UNHCR, âWhy to withdraw reservations to the 1951 Convention relating to the Status of Refugees and its 1967 Protocolâ, July 2024 <www.refworld.org/legal/modellaw/unhcr/2024/en/148327> accessed September 26, 2024.
Follow-up interview with Muhammad Indra, Acting Director General of Immigration 2009â2011 (Jakarta, Indonesia, February 14, 2022).
See especially arts 2, 13, 26.
Interview with Soemantri (n 31); Interview an official at MoFA (n 37).
Interview with Soemantri (n 31).
Interview an official at MoFA (n 37).
Wayne Palmer and Antje Missbach, âEnforcing Labour Rights of Irregular Migrants in Indonesiaâ (2019) 40(5) Third World Quarterly 908, 918.
Mark Turner, Eko Prasojo and Rudiarto Sumarwono, âThe Challenge of Reforming Big Bureaucracy in Indonesiaâ (2022) 43(2) Policy Studies 333, 336.
Palmer and Missbach (n 59); Turner, Prasojo and Sumarwono (n 60).
Jacqueline Vel, Yando Zakaria and Adriaan Bedner, âLaw-Making as a Strategy for Change: Indonesiaâs New Village Lawâ (2017) 4(2) Asian Journal of Law and Society 454.
Davies (n 3) 134.
UNHCR,
Soeprapto (n 21) 63.
ibid 63â65; Stephane Jaquemet,âMandat dan Fungsi dari Komisariat Tinggi Perserikatan Bangsa-Bangsa Urusan Pengungsi (UNHCR)â (2004) 2(1) Indonesian Journal of International Law 1.
Interview with Hafiz (n 30).
Muthalib and others (n 26) 12.
ibid 44.
Fitria (n 12) 113.
Interview with Hafiz (n 30).
ibid.
Interview with Yonesta (n 34).
Interview with Anshor (n 24).
Janmyr (n 6) 462.
Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (4th edn, OUP 2021) 257.
Dio Herdiawan Tobing, âConnecting the Obligation Gap: Indonesiaâs Non-Refoulement Responsibility Beyond the 1951 Refugee Conventionâ (2021) 8(3) Asian Journal of Law and Society 521, 523.
Interview with Eriza (n 34).
Tobing (n 77) 522. This perception is also commonly found in my interviews with Indonesian officials.
Moretti (n 4) 27â30; Mathew and Harley (n 12) 15.
Sin Yee Koh, âPostcolonial Approaches to Migration in Asia: Reflections and Projectionsâ (2015) 9(8) Geography Compass 432, 434.
Kamal Sadiq and Gerasimos Tsourapas, âThe Postcolonial Migration Stateâ (2021) 27(3) European Journal of International Relations 884, 890.
ibid 891; Sin Yee Koh (n 81) 434â36.
Explanatory Notes of Law 9/1992 on Immigration, para 6; Explanatory Notes of Law 6/2011 on Immigration, para 9.
Daniel S Lev, âLegal Aid in Indonesiaâ in Daniel S Lev (ed), Legal Evolution and Political Authority in Indonesia: Selected Essays (Kluwer International, 2000) 300.
Explanatory Notes of Law 6/2011 (n 84) para 9.
Irene Istiningsih Hadiprayitno, âDefensive Enforcement: Human Rights in Indonesiaâ 11 Human Rights Review 373, 377â78.
Interview with Indra (n 44).
This includes Fahri Hamzah and Nazir Zamil from the Islamic Prosperous and Justice Party, Yahdil Abdi Harahap from the Islamic National Mandate Party, and Nudirman Munir from the Functional Group Party (Partai Golkar), the second largest center-right party in the House. Minutes of Meeting, Commission III of the House of Representative Meeting with the Minister of Law and Human Rights, April 27, 2010 11, 14, 18.
Interview with an expert member of staff of the House of Representatives (online, August 30, 2021); Interview with Benny K Harman, member of the Indonesian House of Representatives from Democrat Party (Jakarta, Indonesia, February 16, 2022).
Interview with Indra (n 44).
Interview with Deni Hariatna, an expert member of staff of Commission III of the House of Representatives (online, March 8, 2022).
Follow-up interview with Indra (n 54).
Explanatory Notes of Emergency Law 8/1955 regarding Immigration Criminal Offences, paras 1â2.
In the Dutch-Indies Criminal Code, migrants who came without a permit were only deported. Only repeated offenders were punished by a fine for the first offense and two months in jail for the second repetition.
Explanatory Notes of Emergency Law 8/1955 (n 102) paras 3, 4, 6.
Ramadhan Karta Hadimadja and Abrar Yusra, Lintas Sejarah Imigrasi Indonesia (Direktorat Jenderal Imigrasi, Departemen Hukum dan HAM RI, 2005) 45â46.
The fifth force was a proposal initiated by the Indonesian Communist Partyâs leader,
Interview with Fahri Hamzah, a former Indonesian House of Representatives member from the Prosperous and Justice Party (online, August 13, 2021).
Interview with an expert member of staff of the House (n 90); Interview with Harman (n 90).
Interview with an expert member of staff of the House, ibid.
See Upik Djalins, âBecoming Indonesian Citizens: Subjects, Citizens, and Land Ownership in the Netherlands Indies, 1930â37â 46(2) Journal of Southeast Asian Studies, 227.
See, for example, chapter 6, for an analysis of the influence of Dutch colonialism in its two former colonies which impeded those countries from ratifying the Refugee Convention.