Indonesia must ratify 1951 UN convention

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.