‘Five years on from the 2015 ‘boat crisis’ in the Bay of Bengal and Andaman Sea, in which thousands of refugees and migrants in distress at sea were denied life-saving care and support, we are alarmed that a similar tragedy may be unfolding once more.’
Joint statement by UNHCR, IOM and UNODC on protection at sea in the Bay of Bengal and Andaman Sea, 6 May 2020
In 2015, after mixed responses by States in the region to the Andaman Sea crisis,1 including ‘push backs’ of boat-loads of asylum seekers and refugees, the Ministers of Foreign Affairs of Malaysia, Indonesia and Thailand called a meeting to pressure the Association of Southeast Asian Nations (ASEAN) to address the issue, and released a joint statement in which they pledged to uphold their ‘responsibilities and obligations under international law and in accordance with their respective domestic laws, including the provision of humanitarian assistance…’. That show of solidarity was consolidated in an international Special Meeting on Irregular Migration in the Indian Ocean, held in Bangkok on 29 May 2015, which produced another statement of affirmations. Those affirmations were then substantially adopted by the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (‘Bali Process’). In its 2016 Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, the Bali Process reinforced the need for solidarity amongst states, including by encouraging ‘states to work to identify more predictable disembarkation options’ (paragraph 5).
This call recognized that in crises such as that of 2015, and that which the region is seeing again now, the provision of humanitarian assistance requires that asylum seekers be allowed to disembark in places of safety to receive such assistance. As the joint statement by UNHCR, IOM and UNODC of 6 May 2020 stressed: ‘Search and rescue must be combined with arrangements for prompt disembarkation to a place of safety.’ But five years later there is no evidence of better practices or renewed solidarity, including cooperation on the issue of disembarkation; rather, the attitudes of Malaysia and Thailand towards Rohingya refugees arriving by boat appear to have hardened, whilst that of Indonesia is not clear.
Thailand appears to be turning a blind eye to the current crisis, whilst Malaysia – which is the ‘target’ of the boats2 – has reportedly turned back one boat carrying 300 asylum seekers which was provided with fuel and food. As the monsoon season approaches, grave concerns have been expressed about the threat to the lives of at least 500 asylum seekers at sea.
In light of regional State responses to the current crisis, in this commentary I focus on the scope and potential national and regional effect of President Regulation of the Republic of Indonesia Concerning the Handling of Foreign Refugees, No. 125, adopted on 31 December 2016 (PerPres 125/16), which was made in the wake of the 2015 Andaman Sea crisis. PerPres 125/16 includes a provision (article 9) which endorses the lead role of BASARNAS (Badan Nasional Pencarian dan Pertolongan - the National Search and Rescue Agency) in search and rescue operations. It has been suggested that the failure to carry out search and rescue operations during the 2015 Andaman Sea crisis was a ‘catalyst’ for PerPres 125/16,3 so the question arises: is the new PerPres 125/16 likely to result in better practices? First, I consider how PerPres 125/16 frames protection for asylum seekers and refugees and focus on the significance of its search and rescue provisions. I explain how PerPres 125/16 and its search and rescue provisions endorse a policy consistent with the non-refoulement principle. I also explain countervailing provisions in PerPres 125/16 which detract from that policy by alternatively framing asylum seekers and refugees as ‘illegal’ or ‘irregular’ migrants, consistent with other Indonesian laws and policy. I argue that this popular framing of asylum seekers and refugees diminishes their status in law – both under Indonesian law and in international law – and has a negative influence on how some officials approach their protection roles. I conclude that PerPres 125/16, in its current framing and as interpreted by many Indonesian administrators and policy makers, may not live up to its promise in practice.
This analysis incorporates discussion and papers presented at a Workshop on ‘Presidential Regulation No. 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia: Opportunities and Challenges’, held at the Fakultas Hukum (Faculty of Law), Universitas Indonesia, in March 2018 (‘Workshop’).4 The Workshop attendees included participants from the Coordinating Ministry for Political, Legal, and Security Affairs (see below), representatives of national and international organisations and Indonesian scholars.
Responses to the current crisis
The current crisis, which has seen boats of Rohingya asylum seekers once more stranded at sea, is fueled by operations led by security forces against the Rohingya population in Rakhine State, Myanmar, since 2017. The Thai government’s response to the new crisis has been to close its border to Rohingya people. As mentioned above, there are reports of boats being refused entry to Malaysia, and turned back at sea. The response in Malaysia is exacerbated by fears that Rohingya may be carrying the COVID-19 virus. Bangladesh is a new ‘player’ in this situation; boats carrying Rohingya have met with mixed responses from Bangladeshi authorities. According to one report, in April 2020 Bangladesh's Coast Guard rescued 396 starving Rohingya refugees who had been drifting at sea for weeks after failing to reach Malaysia. According to another report, in the same month the Bangladesh Navy and Coast Guard prevented two boats carrying an estimated 500 Rohingya refugees from disembarking and seeking asylum in Bangladesh. More recently, the Foreign Minister of Bangladesh said that it would not accept back any of the asylum seekers pushed back by Malaysia.
In light of PerPres 125/16, Indonesia’s stance is of extreme interest. One response from the government to reports that boats carrying Rohingya refugees had recently been sighted near Indonesian waters, approaching Aceh, was not very positive. When asked whether Indonesia would accept the refugees if they requested to disembark in Indonesia, Foreign Ministry spokesperson Teuku Faizasyah said it was still a ‘hypothetical situation’.
The spokesperson reportedly said:
Actually, Indonesian policy is to prevent [refugees] from [making the journey] as boat people, right from the beginning. The voyage will jeopardize the safety of anyone on the boats, even more so if there is an element of trafficking in persons.
This statement makes no mention of PerPres 125/16, which endorses the lead role of BASARNAS in search and rescue operations. By the reference to trafficking in persons, the Foreign Ministry spokesperson appears to endorse the popular view (explained below) that asylum seekers in Indonesia are survivors of trafficking or smuggling and/or irregular migrants rather than persons entitled to international protection.
To explain why Indonesia’s response to the current crisis is important both nationally and regionally, it is necessary to put PerPres 125/16 in context.
Whilst like Malaysia and Thailand, Indonesia is not a signatory to the Refugee Convention, it is a State party to the Convention Against Torture, the International Covenant on Civil and Political Rights and Convention on the Rights of the Child, and is bound by their non-refoulement obligations as well as by customary law obligations.5 Indonesia uniquely has a number of laws and policies dating from 19566 which recognise the existence of refugees within its borders, and their need to claim asylum or protection in Indonesia from the state. Laws created in 1999 recognise that the granting of asylum is a sovereign right of the Indonesian state, and confer power on the Indonesian President to formulate refugee policy. PerPres 125/16 is an exercise of power conferred by article 27(2) of the Foreign Relations Law 37/1999, which empowers the President to create policy for foreign refugees through a Presidential Decree.7
Further, in 2000, the 1945 Constitution of the Republic of Indonesia was amended to insert article 28(G), which provides:
Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country.
This provision has not been implemented in Indonesia; rather under a Regional Cooperation Arrangement (RCA) dating from 2000, the Indonesia government allows UNHCR to conduct refugee status determinations in Indonesia.8 In lieu of implementing the Constitutional provision, the Indonesian government decided to create PerPres 125/16.9
How does PerPres 125/16 frame protection for asylum seekers and refugees?
PerPres 125/16 consists of 40 articles divided amongst four Chapters. Chapter I includes article 1(1), which contains a definition of a refugee mirroring that in the Refugee Convention:
A refugee from abroad, hereinafter referred to as a refugee, is a foreigner who resides within the territory of the Republic of Indonesia due to a well-founded fear of persecution for reasons of race, ethnicity, religion, nationality, membership of a particular social group, and different political opinions, and does not wish to avail him/herself of protection from his/her country of origin and/or has obtained asylum seeker status or refugee status from the United Nations through the United Nations High Commission for Refugees in Indonesia. (emphasis added)
Many commentators and participants at the Workshop optimistically read much into this provision, and saw it as a promise of refugee rights.10 Importantly, in this definition both ‘refugees’ (pengungsi) and asylum seekers (pencari suaka) are described as ‘refugees’.11 This definition has made a difference to UNHCR processing of asylum seekers post PerPres 125/16. Previously, only those asylum seekers whose applications for refugee status were successful received a UNHCR identity card. Thus, those with applications pending were at risk of arrest and possible deportation. Post PerPres 125/16, asylum seekers whose applications are under consideration also receive identity cards from UNHCR while their applications are being processed, (and gain refugee status if their application is successful). That is, the international law status of both asylum seekers and refugees is recognised through UNHCR identity cards post PerPres 125/16.
Despite the promise of the definition in article 1(1), other provisions of PerPres 125/16 appear to endorse what is called the ‘immigration law’ approach in Indonesia. As I explain below, the ‘immigration law’ approach frames protection for asylum seekers and refugees as an exception to strict application of immigration law. This is also the prevailing approach in Malaysia and Thailand. In Indonesia this view downplays or ignores the international law status of asylum seekers and refugees, and arguably, the significance of the right to asylum in the 1945 Constitution.12
Chapter II of PerPres 125/16 is headed ‘Detection’, Chapters III and IV contain provisions for ‘Shelter’ and ‘Safeguarding’ respectively, but Chapter V tellingly deals with ‘Immigration Supervision’. As Mahardhika Sjamsoe’oed Sadjad explained in the paper she presented at the Workshop, by framing refugees passively as persons to be ‘detected’ or ‘discovered’, ‘sheltered’ and ‘safeguarded’, PerPres 125/16 treats refugees as persons to be managed, or as irregular migrants. Sadjad analysed at least six earlier drafts of PerPres 125/16 dating from November 2011, and demonstrated that in the drafting process the promise of rights for refugees had been whittled down. While earlier drafts had envisaged that refugees would be granted a permanent status in Indonesia, these provisions were omitted from later drafts. She also noted the absence of references to or provision for human rights (which had been included in earlier drafts),13 although article 3 of the final text does state:
The handling of refugees must duly observe generally applied international provisions and be in accordance with the provisions of laws and regulations.
In its final form, PerPres 125/16 envisages only two durable solutions for refugees: voluntary repatriation or ‘return’ (art 38), and resettlement in a third country (art 37(a)) or ‘country of destination’ (art 33(2)). Local integration has disappeared as an option. Voluntary repatriation is referred to in a number of articles as ‘voluntary return or deportation in accordance with the prevailing laws and regulations’ (art 29(1), emphasis added). Although a clear procedure for voluntary return is provided in article 38, article 43 specifies that a return can be involuntary for ‘refugees whose applications are ... finally rejected’. This raises the question of whether PerPres 125/16 upholds the principle of non-refoulement which applies to Indonesia.14
Although PerPres 125/16 does not expressly prohibit refoulement,15 Malahayati et al. suggest that its search and rescue (SAR) procedures do prevent refoulement.16 Like other commentators, however, they admit that Indonesia’s record on non-refoulement is mixed.17 Before moving to consider the scope of the SAR provisions in PerPres 125/16, I note that the residential requirement in the definition (emphasised above) appears to limit the scope of article 1(1) of PerPres 125/16 to ‘landed’ refugees who are already ‘residing’ in Indonesia. Although the definition could also apply to those who are in Indonesia’s territorial waters, discussion at the Workshop suggested that it does appear to be understood in this way.
The SAR provisions in PerPres 125/16 and the role of BASARNAS
BASARNAS’s role is described in Chapter II (‘Detection’) of PerPres 125/16. Article 5 describes BASARNAS’s role in ‘the finding of refugees in emergency situations in Indonesian waters’ or who ‘transmit distress calls’ (article 6). As to what must be done, article 9 sets out the measures: if a ‘carrying boat is about to go under’ the refugees must be transferred to a rescue vessel and taken to nearest port if their lives are in danger. Those in need of emergency medical attention must be identified. But overall and otherwise, ‘foreigners suspected of being refugees’ must be hand over to the nearest Immigration Detention Facility (article 9 (d)) or, if there is none, to the National Police (article 11).
Although these provisions are consistent with Indonesia’s requirement to carry out adequate and effective SAR operations under article 98 (2) of the UN Convention on the Law of the Sea (UNCLOS)18 they send a mixed message in the framing of ‘suspected’ refugees and the requirement that they be detained once rescued and ‘landed’ (articles 9(d), 11). Further, article 1(1) of PerPres 125/16 (the definition section) applies to ‘landed’ refugees who are already residing in Indonesia (note the residential requirement in the definition, emphasised above). Thus UNHCR, which is not involved in SAR, does not have access to asylum seekers and refugees in Indonesia’s territorial waters. This highlights the importance of SAR and the limits of the application of PerPres 125/16. Being ‘landed’ is a prerequisite to protection in Indonesia. Discussion of this issue at the Workshop suggested considerable frustration over this impasse.
A feature of BASARNAS’ role is that it is a coordinating one. Article 7 describes the coordinating institutions with which BASARNAS works, including the Indonesian Armed Forces, Indonesian National Police and the Maritime Security Agency. At the Workshop, presentations and comments from some participants from some of the institutions coordinating with BASARNAS suggested that there was lack of clarity about their roles and responsibilities to coordinate and engage in SAR in relation to refugees. It was unclear whether participants understood that principles of SAR and non-refoulement supplement international maritime law; there was confusion about how to describe asylum seekers and refugees (whether as irregular migrants or in securitized terms as smuggled/trafficked persons), and overall a very negative perception of refugees as a risk to social harmony.19 Although the representative from BASARNAS said that it is committed to respecting the non-refoulement principle, comments at the Workshop from participants from other agencies suggested that boats carrying asylum seekers are encouraged and assisted to continue their journeys onward from Indonesia to other destinations.
A representative from UNHCR Indonesia was quick to point out that it is a breach of Indonesia’s international obligations to encourage boats to move on by providing food and fuel, and that it is absolutely necessary that asylum seekers be brought on land to be processed by UNHCR under its mandate (and in accordance with PerPres 125/16). However, discussion at the Workshop suggested that the message that the Rohingya’s greatest need is to be rescued and allowed to disembark safely has not been enhanced by PerPres 125/16. That is, PerPres 125/16 needs a stronger and clearer commitment to and statement of Indonesia’s duty to allow asylum seekers to disembark following SAR operations.
The ‘Immigration Law’ framing of PerPres 125/16
As another paper presented at the Workshop by Avyanthi Asiz showed, there are instances post-PerPres 125/16 where (landed) asylum seekers (pencari suaka) have been treated as ‘illegal immigrants’ (imigran gelap) and their rights to refugee status determination by UNHCR have been ignored. Thus, the positive effects of the article 1(1) definition are diminished and the possibility of refoulement is real, not only through inadequate SAR operations but also through failure to process in Indonesia.
The framing of asylum seekers as ‘illegal immigrants’ (imigran gelap) arises from Immigration Law No 6. of 2011 (‘Law 6/2011’), which focuses on irregular migration and the creation of smuggling offences. Article 119(1) makes it an offence punishable with a maximum sentence of five years prison and a fine of Rp 500 million (A$50,000) for a foreigner to stay in Indonesia without a valid travel document and visa. It is also an offence for a foreigner to knowingly use a false travel document. A report authored by Graeme Hugo in 2014 found that 84% of asylum seekers entered Indonesia ‘illegally’ following the enactment of this law because they could not comply with the legal immigration requirements. Hugo et al suggest that Law 6/2011 is designed to make asylum seekers ‘irregular’.
Article 86 of Law 6/2011 is the only provision which indirectly recognises refugees and asylum seekers (as persons who have been smuggled or trafficked). It creates an exception to the law’s punitive provisions for victims of human trafficking and smuggling. Therefore, under a securitised framework, asylum seekers are perceived either as victims of smuggling and/or as illegal immigrants.20 Further, at the Workshop asylum seekers and refugees were persistently described as a threat to social harmony.21
Discussion at the Workshop indicated that amongst many Indonesian policy makers and scholars, Law 6/2011 is now seen as the main law governing refugees. The significance of this approach is that protection of asylum seekers and refugees is perceived as a ‘humanitarian’ discretionary exception to immigration law.22 This is despite the sovereign right to grant asylum in article 28(G) of the 1945 Constitution, which is supplemented by power vested in the President under the Foreign Relations Law (Law 37/1999), in particular article 25, to implement article 28(G).23 Instead the Indonesian state has delegated its sovereign right to grant asylum to UNHCR24 and created PerPres 125/16.
As explained above, PerPres 125/16 is an exercise of the power vested in the President under article 27(2) of Law 37/1999), which provides the legislative power of the Ministry for Foreign Affairs to create refugee policy. However, PerPres 125/16 further created the Coordinating Ministry for Political, Legal, and Security Affairs and placed the treatment of refugees under its authority.25 The Coordinating Minister is responsible for coordinating between the Ministry of Foreign Affairs and the Ministry of Law and Human Rights (arts 1.3, 1.6 and 42), with the latter overseeing the Directorate General for Immigration, the Immigration Office and Immigration Detention Centres. The involvement of these two ministries (and the requirement for inter-ministry coordination) are new features of PerPres 125/16, as is the specific authorisation of the Directorate General for Immigration to handle refugee issues.26
Thus, PerPres 125/16 embodies the tension between the framing of asylum seekers and refugees as persons entitled to rights and protection arising from their status in international law and their ‘illegal’ status under existing Indonesian immigration law. Many Indonesian policy makers and scholars (including those who attended the Workshop) argue that the ‘immigration approach’ trumps Indonesia’s constitutional obligations under article 28(G), which sets out the right to grant asylum. Some Indonesian scholars have argued that PerPres 125/16:
[J]ustifies the transplantation of immigration legal framework for emergency entry of asylum seekers and refugees, rather than the genuine legal framework to grant asylum.27
The ‘immigration approach’, as explained above, is described by many Indonesian policy makers and scholars as a discretionary ‘humanitarian’ and non-legally binding response.28 A spokesperson for the Minister of Foreign Affairs at the Workshop perceived PerPres 125/16 as essentially implementing a ‘humanitarian emergency aspect’ and emphasized that its successful implementation will depend on strong coordination. Moreover, unless PerPres 125/16 is applied and interpreted consistently with the non-refoulement principle and norms of international protection, it will not be effective.
Conclusion: What are the prospects of change at the regional level?
The argument in this piece, namely that the PerPres 125/16 is unlikely to be effective, has been borne out by the action of fishermen from Aceh who recently landed 99 Rohingya refugees after the government of Indonesia refused to assist them.
As I have explained, PerPres 125/16 does not contain a clear and unambiguous requirement to rescue and disembark asylum seekers found at sea; it merely empowers BASNARAS to do so. There is a gap between that power and the mandate of the UNHCR to process refugees in Indonesian territory, as there is no expressed obligation to disembark asylum seekers for the purpose of refugee status determination. Further, the contextual framing of PerPres 125/16 in terms of immigration law and security concerns does not provide much reassurance that search and rescue will lead to disembarkation for processing. However, the symbolic importance of PerPres 125/16, including its connection to the Andaman Sea crisis of 2015, raises the issue of its possible impact regionally (and in particular on Malaysia and Thailand).
UNHCR has worked persistently with countries in the region over many years to strengthen search and rescue measures for asylum seekers and refugees found at sea. Arguably, States in the region are familiar with the importance of the principles and the need for disembarkation and ‘first asylum’ from their experiences with the Comprehensive Plan of Action for Indochinese Refugees (1989-1998).
Since at least 2004, UNHCR policy has encouraged States in the Asian region to strengthen refugee protection in mixed migratory movements, including through rescue at sea. Around 2004, UNHCR policy appeared to shift away from focusing on encouraging states to sign the Refugee Convention to more practical measures. Then, in November 2010, it organized a regional meeting on the 10-point Plan of Action on Refugee Protection and Mixed Migration in Manila.29 In April 2014, it held an ‘International Workshop on the Protection of Irregular Movements of Persons at Sea’ in Jakarta. According to the Co-Chairs’ Summary, discussions focused on three areas, namely: building capacity to promote timely search and rescue operations through information sharing and coordination; developing a protection-sensitive migration management system, including for irregular movements by sea; and mobilizing necessary resources. The Workshop included a number of simulated exercises. According to the ensuing report, key international law principles were confirmed with respect to ensuring the protection of life at sea and disembarkation of those rescued at the place of safety. It was stressed that:
The principle of international cooperation requires putting in place a comprehensive and coordinated approach to respond not in an ad hoc manner but as part of regional cooperation solution involving countries and relevant international organizations namely UNHCR, UNODC and IOM. (para 16)
In Indonesia Haidar Bagir of Risalah (Community) Jakarta Forum recently declared:
The Government must … uphold the established commitments based on regional declarations, including the 2016 Bali Declaration, which states that a comprehensive regional approach to tackle irregular migration – such as the case of Rohingya – will be pursued based on shared burden and collective responsibility.
As the joint statement of UNHCR, IOM and UNODC of 6 May 2020 stressed, there is a need to develop a coordinated regional approach with states in the region. However, in the current crisis, where attention is focused nationally on the threat of the COVID-19 virus, there appears to be little appetite for collective action transnationally between States or from regional organisations such as the Bali Process and ASEAN. In this environment, where the perception of asylum seekers as a security threat is heightened, PerPres 125/16 may not in practice live up to its promise.
About the Author
Susan Kneebone is a Professorial Fellow, and Senior Associate, Asian Law Centre, and Affiliate of the McMullin Statelessness Centre, Melbourne Law School, University of Melbourne. Susan supervises a number of PhD students on refugee law, statelessness and forced migration in South East and East Asia and has written widely on issues around law, governance, and forced migration in those regions. She is currently working on two Australia Research Council funded projects: ‘Towards Development of a Legal Framework for Regulation of International Marriage Migration’ and ‘Indonesia's refugee policies: responsibility, security and regionalism’. The current article arises from that latter grant. Her full CV and list of publications can be viewed at: https://law.unimelb.edu.au/about/staff/susan-kneebone
- 1. Susan Kneebone, ‘Comparative regional protection frameworks for refugees: norms and norm entrepreneurs’ (2016) 20 (2) The International Journal of Human Rights 153-172 at 153.
- 2. One report suggests as many as 22 boats may have approached Malaysia: ‘Hundreds of Rohingya come ashore in Malaysia’ (DTI News, 9 June 2020).
- 3. Antje Missbach, Yunizar Adiputera, Atin Prabandari, Ganesh Cintika, Frysa Yudha Swastika and Raditya Darningtyas, Stalemate: Refugees in Indonesia – Presidential Regulation No. 125/2016 (CILIS Policy Paper 14, 2018) 11.
- 4. The workshop was an outcome of ARC DP180100685 on ‘Indonesia’s refugee policies: responsibility, security and regionalism’. The contribution of the ARC is gratefully acknowledged. The workshop was sponsored by the Centre for Indonesian Law, Islam and Society, The University of Melbourne and Fakultas Hukum (Faculty of Law), Universitas Indonesia.
- 5. Thailand is also a party to these international instruments, but Malaysia is a party only to the Convention on the Rights of the Child.
- 6. See, for example: Circular Letter of the Prime Minister No 11/R.I/1956 of 1956 on Political Refugees, 7 September 1956; Susan Kneebone, ‘Australia as a Powerbroker on Refugee Protection in Southeast Asia: The Relationship with Indonesia’ (2017) 33(1) Refuge 29-41.
- 7. In terms of the Indonesian hierarchy of laws, a Presidential Regulation is ranked fifth of seven categories. The highest level of law is the Constitution, while the lowest are Regency and Municipality Regulations – see Law No. 12 of 2011 on the Establishment of Law and Regulations, art 7(1).
- 8. Kneebone, above note 6, 32
- 9. Document supplied to author by Dr Enny Soeprapto at the Workshop: Enny Soeprapto, ‘Needed: Law on Asylum and Refugees: Some Notes for Reflection’ (Paper prepared for the Workshop on Presidential Regulation No. 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia: Opportunities and Challenges, held at the School of Law, University of Indonesia (Universitas Indonesia), Depok, West Java, Indonesia, 20-21 March 2019). Dr Soeprapto is a lawyer and independent consultant on refugee law in Indonesia. At the time that Law 37/1999 on Foreign Relations was enacted, Dr Soeprapto was an expert consultant to a team of officials from the Ministry of Foreign Affairs tasked with drafting the legislation.
- 10. See also: Elfansuri Chairah, ‘Notes on Presidential Regulation Number 125 on Management of Refugees from Overseas: An Effort to Protect the Rights of Asylum Seekers and Refugees in Indonesia’ (Komnas HAM, Jakarta, 2017) (copy on file with the author) 28; Krithika Varagur, ‘Indonesia Breaks Silence on Refugees With Presidential Decree’ (VOA News, 27 January 2017); SUAKA, ‘Presidential Regulation RI No.125/2016 concerning Handling of Refugees from Abroad’ (Press release, 18 January 2017).
- 11. This is consistent with the ‘declaratory’ theory of refugee law, which recognises that refugee status determination is ‘declaratory’ in nature. That is, a person is a ‘refugee’ within the framework of a given instrument if he or she meets the criteria of the refugee definition in that instrument, regardless of whether he or she is formally recognised as a refugee or not.
- 12. This is a separate argument on which I do not elaborate in this article.
- 13. See also Chairah (2017) and SUAKA (2017), above note 10.
- 14. Despite Indonesia not being a State party to the 1951 Refugee Convention, the obligations it has undertaken as a State party to the Convention Against Torture, International Covenant on Civil and Political Rights, and Convention on the Rights of the Child result in it being bound by the non-refoulement obligations in those treaties and as a principle of international customary law. Further, it has been recognized that policies implemented in Indonesian law amount to recognition of Indonesia’s non-refoulement obligations. See, for example: Regulation of the Director General of Immigration No. IMI-0352.gr.02.07 (2016) on the Handling of Illegal Immigrants Claiming to be Asylum Seekers or Refugees (2016); Alvi Syahrin, ‘The Implementation of Non-Refoulement Principle to the Asylum Seekers and Refugees in Indonesia’ (2017) (2) Sriwijaya Law Review 168-178.
- 15. On this point, note the contrary view is expressed in the Briefing Papers for the 8th meeting of the Asia Dialogue on Forced Migration in June 2019, which state: ‘the 2016 Indonesian Presidential Decree makes a commitment to non-refoulement and unifies the perspective of agencies within the Indonesian Government towards refugees and asylum seekers’ (page 2, emphasis added).
- 16. Adwani Malahayati and Mujibussalim Suhaidi, ‘Non-refoulement: The legal basis and applied approach in the handling of Rohingya refugees in Indonesia’ (2017) 22(8) Journal of Humanities and Social Science 71, 76-77. Note, however, that they suggest that the SAR obligation applies in the territorial waters zone – see below.
- 17. Ibid. See also: Nikolas Feith Tan, ‘The Status of Asylum Seekers and Refugees in Indonesia’ (2016) 28(3) International Journal of Refugee Law, 365, 382-383.
- 18. Article 98(2) of UNCLOS provides: ‘Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.’
- 19. Mahardhika Sjamsoe’oed Sadjad and Max Walden, ‘The Nexus of Human Rights and Security in Indonesia’s Approach to Refugees’ (Refugee Law Initiative blog, 2 October 2019).
- 20. The overlap between trafficked and smuggled persons is recognised in both the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2237 UNTS 319, opened for signature 15 November 2000, entered into force 25 December 2003) art 8(6), and the Protocol against the Smuggling of Migrants by Land, Sea and Air (2241 UNTS 507, opened for signature 15 November 2000, entered into force 28 January 2004) art 18(8). The framing of asylum seekers by Indonesia and Australia as smuggled persons is a central plank of their deterrent policies – see: Susan Kneebone and Antje Missbach, ‘The Human Rights Implications of Australian and Indonesian Anti-Smuggling Laws’ (2018) 4(4) International Journal of Migration and Border Studies 379.
- 21. Sadjad and Walden, above note 19.
- 22. Bilal Dewansyah, Wicaksana Dramanda and Imam Mulyana, ‘Asylum seekers in a non-immigrant state and the absence of regional asylum seekers mechanism’ (2017) 3 Indonesian Law Review 341-366; Bilal Dewansyah and Irawati Handayani, ‘Reconciling Refugee Protection and Sovereignty in ASEAN Member States: Law and Policy Related to Refugee in Indonesia, Malaysia and Thailand’ (2018) 12(4) Central European Journal of International and Security Issues 473, 479.
- 23. There is a debate amongst Indonesian scholars about the main legal source for laws on refugees, with some such as Dr Enny Soeprapto arguing that a specific refugee law must be enacted (see Sadjad and Walden, above note 19) and others arguing that the constitutional right is the main source (see Oly Viana Augustine, ‘The Constitutional Will in Human Rights Protection For Refugees’ (2016) 3(1) Constitutional Review 119-140).
- 24. This delegation arises from the Regional Cooperation Arrangement (RCA) dating from 2001 which is a bilateral agreement between Indonesia and Australia involving cooperation with the UNHCR and IOM on the handling and processing of refugees in Indonesia: Kneebone, above note 6, at 32.
- 25. More specifically, the government body in charge of implementing PerPres 125/16 is the Refugee, Trafficking and People Smuggling Desk which is under the Coordinating Ministry.
- 26. Kadarudin et al, ‘The Situation of International Refugee in Indonesia: A Legal Perspective’ (2018) 4(1) VeJ 1-29.
- 27. Bilal Dewansyah, Wicaksana Dramanda and Imam Mulyana, ‘Asylum Seekers in a Non-Immigrant State and the Absence of Regional Asylum Seekers Mechanism: A Case Study of Rohingya Asylum-Seekers in Aceh-Indonesia and ASEAN Response’ (2017) 3 Indonesian Law Review 341-366.
- 28. Ibid.
- 29. Susan Kneebone ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region’ (2014) 27(4) Journal of Refugee Studies 596-618 at 607, citing a statement by Erika Feller.