Indonesia must ratify 1951 UN convention

By Enny Soeprapto

JAKARTA (JP): The Convention relating to the Status of Refugees will be 50 years old this July 28. The Convention, originally designed to deal with refugee situations in Europe prior to Jan. 1 1951 was amended in 1967 by the Protocol relating to the Status of Refugees. The latter removes the time limitation (events before Jan. 1 1951) as well as the geographical limitation (events in Europe) of the applicability of the 1951 Convention, making the instrument universally applicable. The 1951 Convention / 1967 Protocol has been ratified by 140 States, or over 73 per cent of the membership of the United Nations.

Of these, however, only seven are from the Asian region (Cambodia, China, Islamic Republic of Iran, Japan, Republic of Korea, Philippines and Yemen). Why? The following would seem to be the main reasons.

First, most countries in Asia are developing nations with a large populations. Uplifting their people's welfare is their priority, and refugees are a burden they cannot afford. Second, there is the misperception that becoming a party to the 1951 Convention / 1967 Protocol would impose an international legal obligation to permanently resettle the refugees in the countries concerned.

And, third, there is another misperception that ratifying the 1951 Convention / 1967 Protocol would lead to increased inflows of refugees to these countries.

Such fears were expressed in an article in The Jakarta Post by Lukmiardi of the immigration office ("Urgent: Better handling of Indonesia's illegal aliens, July 7), in the light of the many outsiders seeking shelter in Indonesia.

In an increasingly interdependent world the burden sharing of humanitarian problems has become an internationally accepted principle. Therefore, as refugee issues are problems of international scope and nature every government is expected to play their party in seeking a solution.

Ratifying the 1951 Convention / 1967 Protocol implies, of course, that States Parties accept certain international legal obligations. However these instruments contain no provisions requiring state parties to accept refugees for permanent resettlement in their territories.

The only non-derogable principle is the principle of "non- refoulement" (article 33 of the 1951 Convention), which prohibits state parties from expelling or returning ("refouler") refugees in any manner whatsoever to their countries, or as the Convention states, the "territories of their race, religion, nationality, membership of a particular social group or political opinion."

Fears that ratifying this convention would attract more refugees to the country concerned are totally unfounded. Other factors, such as geographical proximity, similarity of culture or expectations of more freedom are the factors making a country more attractive to refugees. The Philippines, for example, which acceded to the 1951 Convention / 1967 Protocol in 1981, has never been "inundated" by refugees.

Pakistan, on the contrary, which is not a party to the instruments, has been for a number of years sheltering some two million refugees from Afghanistan because of the geographical proximity of the two countries.

The Islamic Republic of Iran, however, has been a party to the 1951 Convention / 1967 Protocol since 1976. However, the presence of some 1.9 million Afghan refugees in Iran is not because this country is a party to the refugee instruments, but because it shares common borders with the country of origin of the refugees. During the second half of the 1970s, all the countries in North and Southeast Asia became countries of first asylum for asylum seekers from the Indochinese peninsula, in spite of the fact that none of these countries was, at that time, a party to the 1951 Convention and 1967 Protocol.

The Preamble of the 1945 Constitution states that one of the purposes of founding the Republic of Indonesia is to form a government which shall participate in implementing a world order based on freedom, abiding peace and social justice. Indonesia has been a member of the UN for more than half a century. It was both a co-sponsor and host for the historical Asia-Africa Conference in Bandung, 1955, which declared, among other things, "its full support of the fundamental principles of human rights as set forth in the UN Charter". It took note of the Universal Declaration of Human Rights as "a common standard of achievement for all peoples and nations".

The Indonesian prime minister's circular of September 1956 states that refugees who enter Indonesian territory will be granted protection "on the basis of human rights and fundamental freedoms," adding that this is in line with the above UN declaration.

For 20 years, from 1975 through 1995, Indonesia granted de facto temporary asylum to asylum seekers from the Indochinese peninsula, 121,000 of whom, during 1979 to 1995, were sheltered in Galang Island.

In 1998, the People's Consultative Assembly adopted a decree on human rights which affirms that Indonesia, being a member of the UN, "has the responsibility to respect the Universal Declaration of Human Rights" and other related international instruments.

The decree further states that "Everyone has the right to asylum to obtain political protection from other countries."

Jakarta also hosts an office of the UN High Commission for Refugees and has facilitated its operations.

Yet Indonesia has not ratified the above 1951 Convention and 1967 Protocol. Decision makers seem to have subscribed to the above misperceptions and fears of being flooded by refugees from outside should they do so.

They do not seem aware of the disadvantages accruing to Indonesia by not being a party to the instruments. As Indonesia is not a party to the 1951 Convention / 1967 Protocol, the determination of the refugee status of asylum seekers in Indonesia is conducted by the UNHCR, in line with its mandate, without the involvement of the Indonesian authorities. Such refugees are commonly called "mandate refugees".

If Indonesia were a party to those instruments, the competence and responsibility of determining the status of asylum seekers in Indonesia would rest with the Indonesian government. Naturally, the government may always consult UNHCR given its expertise and experience.

Becoming a party to the 1951 Convention / 1967 Protocol also helps to promote friendly ties among nations, particularly between the receiving State Parties and the country of origin of the refugees.

Considering Indonesia's poor record on its ratification of international instruments on human rights, its accession to the above Convention and Protocol would boost Indonesia's image as a nation committed to promoting respect for human rights, including the most basic human rights of refugees.

It would be an illusion to expect that if Indonesia continues to stay out of these instruments, it would dissuade real asylum seekers or economic migrants from coming to the country, even for temporary stays. It would be impossible to seal off Indonesia, given its location on the crossroads between two oceans and two continents, with no less than two million square kilometers of land and water territory, and over 17,000 islands with a combined coastline of 82,000 kilometers.

Therefore, Indonesia should take in hand the work of determining the status of refugees by joining the other 140 countries which have already become party to this convention and protocol.

These instruments do not merely promote the rights of refugees, but by promoting friendly ties among nations, they are also instruments for peace.

Enny Soeprapto, Ph.D. is a lecturer on international refugee law at the Surabaya University. From 1975 to 1978 he was a protection officer at the UNHCR in Geneva, Switzerland.