Article 19 The Status of Asylum Seekers and Refugees in Indonesia.

International Journal of Refugee Law, 2016, Vol. 28, No.
3, 365–383
doi:10.1093/ijrl/eew045
ARTICLES
Downloaded from https://academic.oup.com/ijrl/article/28/3/365/2599186 by Ethiopian Civil Service University user on 07 March 2022
The Status of Asylum Seekers and
Refugees in Indonesia
Nikolas Feith Tan*
A B ST R A CT
Indonesia is a transit country for asylum seekers and refugees from Asia and the Middle
East. In the early 2000s, transit was relatively rapid as asylum seekers made their way
onward to Australia by boat, but today, refugees face longer and longer waiting times as
that avenue to protection has been closed. Indonesia is not a party to the 1951 Convention
relating to the Status of Refugees and Southeast Asia has no human rights treaty. Indonesia
has, however, ratified some of the core human rights treaties and, while the country has
no national asylum system, some domestic laws provide for refugee rights. This article
assesses the legal status of asylum seekers and refugees in Indonesia under international
and national law, with a focus on some of the rights fundamental to the experience of
people seeking international protection. It discusses prospects for refugee protection in
Indonesia, evaluating regional and national trends vis-à-vis irregular migrants, and con-
cluding that, despite the development of a draft national law, refugees in Indonesia are
unlikely to find durable solutions in the country in the near future.
1. I N T RO D U CT I O N
Indonesia has been a transit country for asylum seekers and refugees since the exodus of
Indochinese refugees by boat 40 years ago, with established migration flows between refu-
gee-producing States in Asia and the Middle East. Indonesia’s location and geography – a
vast archipelago made up of 17,000 islands with a coastline of almost 55,000 kilometres –
make its porous borders almost impossible to control.1 Today, the country hosts more than
* PhD fellow, Aarhus University and the Danish Institute for Human Rights. Email:
nita@humanrights.dk. I wish to thank Madeline Gleeson, Marie Juul Peterson, Stéphanie
Lagoutte, Susan Kneebone, Thomas Gammeltoft-Hansen, Antje Missbach, Savitri Taylor, and
Jens Vedsted-Hansen for their valuable suggestions and comments.
1
Richard Towle, ‘Processes and Critiques of the Indo-Chinese Comprehensive Plan of Action:
An Instrument of International Burden-Sharing?’ (2006) 18 IJRL 537; Antje Missbach, ‘Doors
and Fences: Controlling Indonesia’s Porous Borders and Policing Asylum Seekers’ (2014) 35
Singapore Journal of Tropical Geography 228, 239.
© The Author (2016). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.
permissions@oup.com
• 365
366 • The Status of Asylum Seekers and Refugees in Indonesia
13,000 asylum seekers and refugees from Afghanistan, Iraq, Iran, Myanmar, and Somalia,
seeking a durable solution, either via resettlement arranged by the United Nations High
Commissioner for Refugees (UNHCR), or through onward passage to Australia.2 The
reintroduction of Australia’s policy of turning back boats and the cessation of resettlement
of refugees in Indonesia have closed off the possibility of onward travel, leaving more and
more irregular migrants in Indonesia for longer and longer periods of time.3
Like many Southeast Asian States, Indonesia is not a party to the 1951 Convention
relating to the Status of Refugees (Refugee Convention).4 This lack of international pro-
tection for refugees is exacerbated by the absence of a regional human rights convention,
like those found in Europe and the Americas.5 Further, there is an absence of domestic
legal protections as no national legislation comprehensively provides for refugee rights.
Indonesia has no asylum system, but allows UNHCR to carry out refugee status deter-
mination in the country.6 However, Indonesia has acceded to a number of core human
rights treaties, which provide a range of protections for asylum seekers and refugees.
This article uses the case of Indonesia to examine the protection obligations owed
to refugees by non-signatory transit States: that is, States which have not signed the
Refugee Convention or the Protocol relating to the Status of Refugees (1967 Protocol)7
but which host significant numbers of asylum seekers and refugees.8 In Southeast Asia,
just three States – Cambodia, the Philippines, and Timor-Leste – have acceded to the
2
There are three possible forms of durable solution: repatriation, local integration, or resettlement.
See Savitri Taylor and Brynna Rafferty-Brown, ‘Difficult Journeys: Accessing Refugee Protection
in Indonesia’ (2010) 36 Monash University Law Review 138.
3
UNHCR, ‘2015 UNHCR Regional Operations Profile – South-East Asia’ <http://www.unhcr.
org/pages/49e488116.html> accessed 1 Mar 2016; Jane McAdam, ‘Australia and Asylum
Seekers’ (2013) 25 IJRL 435, 441; Andreas Schloenhardt and Colin Craig, ‘Turning Back the
Boats’: Australia’s Interdiction of Irregular Migrants at Sea’ (2015) 27 IJRL 536, 561. In Nov 2014,
Australia announced it would not resettle refugees in Indonesia who arrived after 1 July 2014:
Scott Morrison, ‘Changes to Resettlement Another Blow to People Smugglers’, Media Release (18
Nov 2014) <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov.
au/media/sm/2014/sm219307.html> accessed 14 Mar 2016.
4
Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 Apr
1954) 189 UNTS 137. For an overview of the difficulties faced in refugee protection in Southeast
Asia, see UNHCR, Global Report 2013 – South-East Asia Subregional Overview <http://www.
unhcr.org/539809fc16.html> accessed 26 Nov 2014.
5
European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov
1950, ETS 5, as amended by Protocols Nos 11 and 14; American Convention on Human Rights,
‘Pact of San Jose’, Costa Rica, 22 Nov 1969.
6
UNHCR, ‘2014 UNHCR Regional Operations Profile: South-East Asia’ <http://www.unhcr.
org/pages/49e488116.html> accessed 17 Sept 2014.
7
Protocol relating to the Status of Refugees (adopted 31 Jan 1967, entered into force 4 Oct
1967) 606 UNTS 267; Bhatara Ibnu Reza, ‘Challenges and Opportunities in Respecting
International Refugee Law in Indonesia’ in Angus Francis and Rowena Maguire (eds), Protection
of Refugees and Displaced Persons in the Asia Pacific Region (Ashgate 2013) 117, 119.
8
Antje Missbach, Troubled Transit: Asylum Seekers Stuck in Indonesia (ISEAS – Yusof Ishak
Institute, 2015) 149–62.
The Status of Asylum Seekers and Refugees in Indonesia • 367
Refugee Convention.9 The case of Indonesia may be instructive for other regions of
the world, such as non-signatory States near Europe (for example, Jordan and Libya).10
Despite growing numbers of asylum seekers and refugees in transit, and the increas-
ing importance of Indonesia on the regional stage, there is little scholarship examining
the legal status of refugees in Indonesia.11 This article seeks to fill that gap, by provid-
ing an analysis of the limited legal protections afforded to asylum seekers and refugees
under both international and national law, and by discussing future prospects for the
protection of refugees in Indonesia. In part 2, the article briefly outlines Indonesia’s
engagement with the international refugee regime, before examining the status of refu-
gees in Indonesia under human rights law and national law (part 3). It then considers
future prospects for refugee protection (part 4), examining both regional and national
trends in approaches to irregular migration, before concluding that, while the develop-
ment of a domestic asylum law will clarify their status, asylum seekers and refugees will
likely remain in tolerated transit in Indonesia.
2. E N G A G E M E N T W I T H T H E I N T E R N AT I O N A L R E F U G E E R E G I M E
Engagement with the international refugee regime in the decades following Indonesia’s
independence in 1945 was minimal as, at the time, the Refugee Convention had a clear
European bias.12 The 1967 Protocol failed to end Southeast Asian States’ perceptions
of refugee law as Eurocentric.13 That same year, the Association of Southeast Asian
Nations (ASEAN) was formed, with a mandate to promote economic growth, social
progress, socio-cultural evolution among its members, and protection of regional peace
and stability.14
The only Indonesian acknowledgment of refugee law in the early years of independ-
ence was a Circular Letter of the Prime Minister on Political Refugees of 1956. Article 1
9
On the potential of asylum law in Southeast Asia, see Martin Jones, ‘Moving beyond Protection
Space: Developing a Law of Asylum in South East Asia’ in Susan Kneebone, Dallal Stevens, and
Loretta Baldassar (eds), Conflicting Identities: Refugee Protection and the Role of Law (Routledge
2015). A number of States that are not signatories host significant numbers of refugees. Of the 10
States that hosted the most refugees at the end of 2013, the top four were non-signatory States:
Pakistan (1,616,500 refugees); Iran (857,400); Lebanon (856,500); and Jordan (641,900).
10
On the notion of transit States, see Ann Kimball, The Transit State: A Comparative Analysis of
Mexican and Moroccan Immigration Policies (Center for Comparative Immigration Studies,
University of California, San Diego 2007).
11
Notable existing work includes Savitri Taylor and Brynna Rafferty-Brown, ‘Waiting for Life to
Begin: The Plight of Asylum Seekers Caught by Australia’s Indonesian Solution’ (2010) 22 IJRL
558; Taylor and Rafferty-Brown (n 2); Missbach (n 8) 149–72.
12
Indonesia declared independence from the Netherlands in 1945, though ensuing revolution-
ary war meant this was not actualized until 1949. ‘International refugee regime’ refers to the
system that has evolved from principles set out in the Refugee Convention and its specialized
institution, UNHCR. Susan Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia–
Pacific Region’ (2014) 27 JRS 596; Refugee Convention, art 1B; Sara Ellen Davies, Legitimising
Rejection: International Refugee Law in Southeast Asia (Brill 2008) 14, 225.
13
Davies (n 12).
14
The ASEAN Declaration (Bangkok Declaration), Bangkok, 8 Aug 1967.
of this administrative (non–legally binding) instrument provided that ‘political refugees’

would be protected on grounds of ‘human rights and fundamental freedom in accord-
ance with international customary law’.15 Article 2 defined a political refugee as a for-
eigner who has committed a political crime, a much narrower definition than article 1A
of the Refugee Convention. Article 4 of the Circular Letter further limited the defini-
tion to crimes not contrary to Indonesia’s interests. This protection for political refugees
was likely aimed at supporting self-determination movements with which Indonesia
sympathized.16
Indonesian engagement with the international refugee regime began in the late
1970s, when the establishment of communist governments across Indochina –
Vietnam, Cambodia, and Laos – triggered the exodus of around three million migrants
and refugees. In September 1978, 1220 Vietnamese asylum seekers arrived in Indonesia,
the first ‘boat people’ in the archipelago.17 In 1979, with 43,000 asylum seekers in the
country, Indonesia issued a presidential decree to coordinate the temporary asylum of
arriving refugees.18 Indonesia and other ASEAN States appealed to the international
community to assist with the 200,000 asylum seekers in their territories, stating that
regional countries had ‘reached the limit of their endurance’.19 Indonesia also allowed
UNHCR access, signing an agreement pursuant to which the agency could conduct
registration and refugee status determination.20 At a multilateral meeting in Geneva,
Western States, including the United States, the United Kingdom, Australia, France
and Canada, agreed to increase the number of resettlement places for Indochinese
refugees from 125,000 to 260,000, and Vietnam committed to the Orderly Departure
Programme, allowing UNHCR to facilitate direct resettlement rather than leaving peo-
ple to undertake dangerous journeys by sea.21
By 1987, however, the number of boat people was once again on the rise as the
patience of regional and resettlement States waned. Western States were reluctant
to continue offering resettlement places and, as a result, Southeast Asian countries
once again faced increasing numbers of irregular migrants. The 1979 consensus had
15
Circular Letter of the Prime Minister No 11/R.I./1956 of 1956 on Political Refugees, 7 Sept
1956.
16
Reza (n 7) 123; Missbach (n 8) 157.
17
Larry Clinton Thompson, Refugee Workers in the Indochina Exodus, 1975–1982 (McFarland
2010) 6.
18
Presidential Decree No 38 of 1979 relating to Vietnamese Asylum-Seekers, 11 Sept 1979;
Missbach (n 8) 31.
19
A Lakshmana Chetty, ‘Resolution of the Problem of Boat People: The Case for a Global
Initiative’ (2001) 1 ISIL Year Book of International Humanitarian and Refugee Law 144; ‘Joint
Communiqué issued at the 12th ASEAN Ministerial Meeting, Bali, Indonesia, 28–30 June
1979’, in Thai Ministry of Foreign Affairs, Documents on the Kampuchean Problem: 1979–1985
(Bangkok 1985) 78.
20
Agreement between the Government of the Republic of Indonesia and the United Nations
High Commissioner for Refugees regarding the Establishment of the Office of the UNHCR
Representative for Indonesia (15 June 1979).
21
Chetty (n 19); UNHCR, The State of The World’s Refugees 2000: Fifty Years of Humanitarian
Action (OUP 2000) 79–84.
collapsed. In response, the Comprehensive Plan of Action (CPA) was negotiated. The
CPA provided a mechanism for the orderly reception, processing, and resettlement or
repatriation of refugees.22 Western States agreed to resettle refugees in exchange for the
cooperation of Southeast Asian States in providing temporary asylum.23
Throughout the Indochinese refugee crisis, Indonesia rarely, if ever, violated the
principle of non-refoulement, while Malaysia and Thailand pushed back large numbers
of boats.24 At the same time, however, Indonesia did not play a role in providing durable
solutions, instead leaving the resettlement of refugees to Western States. In so doing,
Indonesia successfully avoided international responsibility for refugees. Indonesia and
other States refused to accede to the Refugee Convention, citing State sovereignty, the
need to prioritize care for their own people, and the responsibilities of countries of ori-
gin.25 By 1996, the last Indochinese had been resettled or had returned home.
The fall of Indonesia’s authoritarian leader, Suharto, in 1998, ushered in the reform
era, a period characterized by rapid democratization and a renewal of Indonesia’s
commitment to human rights. On the international plane, Indonesia ratified the
Convention against Torture (CAT) in 1998,26 which includes an express obligation
of non-refoulement in article 3, and the International Covenant on Civil and Political
Rights (ICCPR),27 which has been interpreted to preclude return to torture, inhuman
or degrading treatment and places limits on State Parties’ detention of asylum seekers
and refugees, among other things. At the national level, the Parliamentary Decree on
Human Rights of 1998 and subsequent Law No 39 of 1999 concerning Human Rights
included the ‘right to seek and receive political asylum from another country’.28 Article
28G(2) of the Indonesian Constitution, inserted in 1999, embedded the right to asy-
lum into national law for the first time.29 A 2002 Directive from the Director-General
of Immigration provided an administrative (non-legal) basis for the principle of non-
refoulement and delegated responsibility for refugee status determination to UNHCR.30
22
For detailed analyses of the CPA, see Towle (n 1); Courtland W Robinson, ‘The Comprehensive
Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’
(2004) 17 JRS 319; Alexander Betts, ‘Comprehensive Plans of Action: Insights from CIREFCA and
the Indochinese CPA’ (2006) UNHCR New Issues in Refugee Research, Working Paper No 120.
23
Davies (n 12) 226.
24
Ann C Barcher, ‘First Asylum in Southeast Asia: Customary Norm or Ephemeral Concept’
(1991) 24 New York University Journal of International Law and Politics 1253, 1263.
25
Davies (n 12) 129–30.
26
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(adopted 10 Dec 1984, entered into force 26 June 1987) 1486 UNTS 85.
27
International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force
23 Mar 1976) 999 UNTS 171.
28
Law No 39 of 1999 concerning Human Rights (23 Sept 1999), art 28(1).
29
Constitution of the Republic of Indonesia 1945 (certified English translation) <http://www.
humanrights.asia/countries/indonesia/countries/indonesia/laws/uud1945_en> accessed 4
Aug 2015. Art 28G(2) provides: ‘Each person has the right to be free from torture or inhuman
and degrading treatment and shall be entitled to obtain political asylum from another country’.
30
Directive from the Director-General of Immigration of 2002 on Procedures regarding Aliens
Expressing Their Desire to Seek Asylum or Refugee Status, No F-IL.01.10-1297 (30 Sept 2002).
The Directive was amended by IMI-1489.UM.08.05 (17 Sept 2010).
From 1999 onwards, with the Taliban’s rise to power in Afghanistan, conflict in
Iraq, and persecution in Iran, asylum seekers and refugees again began to make their
way to Indonesia, seeking onward passage to Australia or resettlement via UNHCR.31
Since 2009, Rohingya asylum seekers from Myanmar and Bangladesh have joined
them. While irregular migration was initially relatively uncontroversial in Indonesia,
asylum policy became an incendiary political issue in Australia. The two countries
began cooperating in this field in 2000 through the Regional Cooperation Model,
an agreement concluded by an exchange of letters that aimed to prevent people
smuggling. In 2002, the multilateral Conference on People Smuggling, Trafficking
in Persons and Related Transnational Crime (the Bali Process) was initiated, with
Indonesia and Australia as co-chairs. Indonesia has resisted ratifying the Refugee
Convention or its 1967 Protocol, despite expressing an intention to do so on several
occasions.32
Today, Indonesia hosts a growing number of asylum seekers and refugees, many
in protracted situations of transit. Onward movement has been cut off since 2013,
when Australia resumed turning back boats to Indonesia.33 In 2015, in response to the
Rohingya crisis that saw asylum seekers and migrants from Myanmar and Bangladesh
stranded at sea, Indonesia agreed to provide temporary asylum to 3,500 people for one
year,34 an approach that recalled the temporary protection of Indochinese refugees
almost four decades earlier. Indonesia thus tolerates the presence of asylum seekers and
refugees on its territory, an approach characterized as ‘benevolent neglect’,35 but has yet
to commit formally to the international refugee regime.36
31
Fiona H McKay, Samantha L Thomas, and Susan Kneebone, ‘“It Would Be Okay if They Came
Through the Proper Channels”: Community Perceptions and Attitudes toward Asylum Seekers
in Australia’ (2012) 25 JRS 113, 115; Stephen H Legomsky, ‘Secondary Refugee Movements and
the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’ (2003)
15 IJRL 567, 591.
32
Indonesia committed to ratification in 2006, following its election to the UN Human Rights
Council, and in consecutive National Plans of Action on Human Rights in 2009 and 2014. See
Indonesian National Plan of Action on Human Rights (2011–2014) (Bahasa Indonesia only)
<http://www.ohchr.org/Documents/Issues/NHRA/NAPIndonesiaTahun2011_2014.pdf>
accessed 14 Nov 2014; Towle (n 1); Reza (n 7) 120.
33
Schloenhardt and Craig (n 3).
34
Joe Cochrane, ‘Indonesia and Malaysia Agree to Care for Stranded Migrants’ (New York
Times, 20 May 2015) <http://www.nytimes.com/2015/05/21/world/asia/indonesia-
malaysia-rohingya-bangladeshi-migrants-agreement.html?_r=0> accessed 4 Aug 2015; Antje
Missbach, ‘The Rohingya in Aceh: Solidarity and Indifference’ (Indonesia at Melbourne, 30
June 2015) <http://indonesiaatmelbourne.unimelb.edu.au/the-rohingya-in-aceh-solidarity-
and-indifference/> accessed 4 Aug 2015.
35
Antje Missbach, ‘Benevolent Neglect: How Indonesia Handles Its Asylum Seeker Problem’ (The
Conversation, 29 Aug 2012) <http://theconversation.com/benevolent-neglect-how-indonesia-
handles-its-asylum-seeker-problem-8920> accessed 4 Dec 2014.
36
For a useful overview of efforts to achieve ratification, see Enny Soeprapto, ‘Promotion of
Refugee Law in Indonesia’ (2004) 2 Indonesian Journal of International Law 57.
3. T H E L E G A L STAT U S O F R E F U G E E S I N I N D O N E S I A
This part investigates legal norms relevant to asylum seekers and refugees in Indonesia
and evaluates the rights and protections afforded to them under both international
and national law. In the absence of a national asylum system, the discussion focuses
on human rights law. On this basis, this part discusses four key rights and protections
for asylum seekers and refugees drawn from Indonesia’s human rights law obligations:
non-refoulement; freedom from torture or other cruel, inhuman or degrading treatment
or punishment; the right to liberty and security; and the right to education. While a
patchwork of human rights law affords asylum seekers and refugees a minimum set of
rights, these fall short of what international law requires, since Indonesia has neither a
national asylum system, nor provides durable solutions.37 Further, this section briefly
considers the effectiveness of legal norms in this area with reference to the reported
experiences of asylum seekers and refugees in Indonesia.
3.1 International law

As Indonesia has not acceded to the Refugee Convention or the 1967 Protocol, its obli-
gations relating to asylum seekers and refugees are patched together from its duties
under human rights instruments and customary international law. Indonesia has
acceded to all the core human rights treaties, with the exception of the Convention
for the Protection of All Persons from Enforced Disappearance,38 which it has signed
but not ratified. Thus, this article focuses on Indonesia’s obligations under the ICCPR,
the CAT, the Convention on the Rights of the Child (CRC),39 and customary interna-
tional law. While the rights contained in these treaties do not equate to the protection
afforded by the Refugee Convention, they nonetheless provide piecemeal rights and
protections for refugees in Indonesia.40
3.1.1 Non-refoulement
The principle of non-refoulement enjoys broad support within the human rights law trea-
ties to which Indonesia is a signatory. Article 3 of the CAT explicitly prohibits refoule-
ment in absolute terms where there are substantial grounds for believing that a person
would be in danger of being tortured upon return.41 The Committee against Torture has
37
International protection ‘begins with securing admission, asylum, and respect for basic human
rights, including the principle of non-refoulement, without which the safety and even survival of
the refugee is in jeopardy; it ends only with the attainment of a durable solution’: UN General
Assembly, ‘Note on International Protection’, UN doc A/AC.96/830, 7 Sept 1994 <http://www.
refworld.org/docid/3f0a935f2.html> accessed 4 Mar 2016.
38
Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 Dec
2006, entered into force 23 Dec 2010) UN doc.A/61/448, 12 Jan 2007.
39
Convention on the Rights of the Child (adopted 20 Nov 1989, entered into force 2 Sept
1990) 1577 UNTS 3.
40
According to UNHCR, ‘even where situations are not specifically covered by international refugee
conventions, refugees, asylum-seekers and displaced persons are, nevertheless, protected by …
guarantees of fundamental human rights’: UNHCR, ‘Note on International Protection’, UN doc
A/AC.96/7777, 9 Sept 1991, para 56.
41
Jane McAdam, Complementary Protection in International Refugee Law (OUP 2007) 112.
expressed concern that Indonesian national law fails to guarantee against refoulement,
leaving article 3 open to violation.42 While the ICCPR does not include a specific refer-
ence to non-refoulement,43 the Human Rights Committee has read in an implied pro-
hibition where return threatens the right to life under article 6 or ill-treatment under
article 7.44
Like the ICCPR, the CRC makes no explicit mention of the principle of non-refoule-
ment, yet the Committee on the Rights of the Child has read it in under article 22. In its
General Comment on the treatment of unaccompanied and separated children outside
their country of origin, the Committee proscribes forced return where there is a ‘real
risk of irreparable harm to the child’.45 Thus, the CRC provides an extra layer of pro-
tection for child asylum seekers and refugees against refoulement. In addition to these
treaty-based protections, the non-refoulement principle is broadly accepted to be a norm
of customary international law.46 The content of this customary norm extends to both
an expression of article 33(1) of the Refugee Convention and its human rights–based
counterparts.
At the normative level, asylum seekers and refugees in Indonesia enjoy protection
from refoulement; however, whether Indonesia, in fact, violates the principle is less clear.
Indonesia may have occasionally returned people to persecution.47 In July 2008, news
media reported that two Iranians who ‘fled to pursue living in a free country’ were to be
deported.48 The story further stated that this would ‘not be the first time Indonesia has
deported Iranian nationals’. In 2009, 55 Sri Lankan Tamils who arrived in Aceh by boat
called on the Indonesian government not to return them.49 Whether the group was
42
‘Concluding Observations of the Committee against Torture, Indonesia’, UN doc CAT/C/IDN/
CO/2, 2 July 2008, para 28.
43
Brian Gorlick, ‘Human Rights and Refugees: Enhancing Protection through International
Human Rights Law’ (2000) 69 Nordic Journal of International Law 117, 134.
44
Human Rights Committee, ‘General Comment 20, Article 7’ in ‘Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies’, UN doc
HRI/GEN/1/Rev.1, 1992, 30, para 9; Manfred Nowak, Covenant on Civil and Political Rights,
CCPR Commentary (2nd edn, NP Engel 2005) 185.
45
Committee on the Rights of the Child, ‘General Comment No 6: Treatment of Unaccompanied
and Separated Children Outside their Country of Origin’, UN doc CRC/GC/2005/6, 1 Sept
2005, para 27.
46
Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-
refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds), Refugee
Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP
2003). For a contrary view, see James C Hathaway, ‘Leveraging Asylum’ (2010) 45 Texas
International Law Journal 503.
47
Taylor and Rafferty-Brown (n 2) 156; Amnesty International, Indonesia: Briefing to the UN
Committee against Torture, 15 Apr 2008.
48
Taylor and Rafferty-Brown (n 2) 145.
49
Nurdin Hasan, ‘Govt Urged Not to Repatriate Refugees’ (Jakarta Globe, 19 June 2009) <http://
jakartaglobe.beritasatu.com/archive/govt-urged-not-to-repatriate-refugees/> accessed 25 Aug
2015; Hotli Simanjuntak, ‘Aceh Inspires Sri Lankan Peace Mission’ (The Jakarta Post, 2 July
2009) <http://www.thejakartapost.com/news/2009/07/02/aceh-inspires-sri-lankan-peace-
mission.html> accessed 25 Aug 2015.
ultimately returned is unknown. In 2012, 13 Iranian asylum seekers were deported.50 In

general, however, Indonesia deports only 20–30 people per year, due to the costs involved.51
Refoulement may also occur at the border. Asylum seekers and refugees in Indonesia
have occasionally reported relatives being denied access when attempting to enter the
country.52 During the Rohingya crisis of 2015, Indonesia turned away at least one boat
carrying 400 people in north-western Aceh,53 an action that may have breached its non-
refoulement obligations. However, the norm, as expressed in the Refugee Convention,
proscribes the return or expulsion of a refugee to ‘the frontiers of territories’ where he
or she faces persecution. In the Indonesian case, the turning away of boats may not
amount to refoulement where migrants on board are simply pushed back out to sea and
not returned to a place of persecution. Such pushbacks may similarly not meet the defi-
nition of refoulement under article 3 CAT, as pushing boats out to sea does not amount
to return to ‘another State’ and is unlikely to meet the definition of torture under article
1. However, the turning away of boats in these circumstances clearly engages Indonesia’s
right to life obligations under article 6 ICCPR.
Several observers note that evidence of refoulement is all but impossible to find.54
Generally, it appears that Indonesian authorities do not deliberately deport or bar entry
to refugees. However, there remains the risk that individuals who are not identified as
refugees, including those who attempt irregular departure from Indonesia by boat, are
expelled to countries where they face a real risk of persecution or torture.55
3.1.2 Freedom from torture or other cruel, inhuman or degrading treatment or punishment
Freedom from torture and other forms of ill-treatment is especially relevant to asy-
lum seekers and refugees in detention and in terms of non-refoulement. Indonesia
detains adults and child asylum seekers and refugees for indeterminate periods of time
(often years) in 13 centres and 20 temporary detention facilities around the coun-
try.56 Conditions span a broad spectrum ranging ‘from acceptable to appalling’.57 As at
50
Aditya Muharam, ‘Respect the Principle of Non-Refoulement’ (Jakarta Globe, 21 Feb
2012) <http://jakartaglobe.beritasatu.com/archive/respect-the-principle-of-non-refoulement/>
accessed 27 Aug 2015.
51
Missbach (n 8) 132.
52
There is no visa for refugees under national law: ibid 242.
53
Simon Tisdall, ‘South-East Asia Faces Its Own Migrant Crisis as States Play “Human Ping-Pong”’
(The Guardian, 14 May 2015) <http://www.theguardian.com/world/2015/may/14/migrant-
crisis-south-east-asia-rohingya-malaysia-thailand> accessed 4 Aug 2015.
54
Taylor and Rafferty-Brown (n 2) 146; Missbach (n 8) 242.
55
Human Rights Watch, Barely Surviving: Detention, Abuse, and Neglect of Migrant Children in
Indonesia (2013) 73; Savitri Taylor, ‘Asylum Seekers in Indonesia: Why Do They Get on Boats?’
(The Conversation, 19 July 2012) <http://theconversation.com/asylum-seekers-in-indonesia-
why-do-they-get-on-boats-8334> accessed 28 Oct 2014.
56
Antje Missbach, ‘Asylum Seekers in Indonesia: Don’t Come, Don’t Stay, Don’t Go’ (2012) 40
The Indonesian Quarterly 290, 298.
57
Jessie Taylor, ‘Behind Australian Doors: Examining the Conditions of Detention of Asylum
Seekers in Indonesia’ (Asylum Seekers in Indonesia: Project, Findings & Recommendations,
2009) 4.
31 August 2015, there were 4,511 people in immigration detention.58 Examples of mis-
treatment amounting to torture have been reported in exceptional circumstances.59
Other forms of mistreatment are more common: detainees, including children, are
routinely beaten, for example.60
Article 1 of the CAT protects asylum seekers and refugees from torture in absolute
and non-derogable terms.61 Freedom from torture is also a norm of customary inter-
national law and generally accepted to be jus cogens.62 The CAT also proscribes lesser
forms of ill-treatment in article 16, requiring Indonesia to refrain from cruel, inhuman
or degrading treatment or punishment. Relevantly for the immigration detention con-
text, the Committee against Torture has stated that ‘the warehousing of Vietnamese
boat people in large detention centres’ in Hong Kong may conflict with article 16.63
Under the ICCPR, article 7 acts to protect against ill-treatment generally, and includ-
ing in immigration detention, importing a negative obligation on State Parties to refrain
from committing acts of this nature. The provision operates in combination with article
10 of the ICCPR, which provides that: ‘All persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person’.64
Article 37(a) of the CRC prohibits torture or other cruel, inhuman or degrading treat-
ment or punishment of children. While Indonesia does detain children, the Committee
on the Rights of the Child has stopped short of saying that detention per se amounts to
ill-treatment under article 37.65 The Committee has stated, however, that the ‘underly-
ing purpose’ of such a policy should be care and not detention.66
3.1.3 The right to liberty and security

The right to liberty and security of the person is also relevant to asylum seekers and refu-
gees detained in Indonesia. Article 9(1) of the ICCPR prohibits arbitrary detention, but
the right to liberty and security is not absolute. In FKAG and others v Australia in 2013,
the UN Human Rights Committee emphasized that any detention of asylum seekers must
be ‘reasonable, necessary and proportionate’.67 In the Indonesian context, Law No 6 of
2011 on Immigration provides that any person without identification documentation is
58
UNHCR, ‘Indonesia Fact Sheet’ (Aug 2015) 2 <http://www.unhcr.org/50001bda9.html>
accessed 3 Mar 2016.
59
Amnesty International, ‘Indonesia: Asylum Seeker Tortured to Death in Detention’ (3 Mar
2012).
60
Human Rights Watch (n 55) 73.
61
CAT, art 2(2).
62
Erika de Wet, ‘The Prohibition of Torture as an International Norm of jus cogens and Its
Implications for National and Customary Law’ (2004) 15 European Journal of International Law
97.
63
‘Conclusions and Recommendations of the Committee against Torture, United Kingdom of
Great Britain and Northern Ireland’, UN doc A/51/44, 1996, para 63.
64
ICCPR, art 10(1). Art 7 also reflects art 5 of the Universal Declaration on Human Rights and art
3 of the European Convention on Human Rights.
65
Committee on the Rights of the Child (n 45) para 62.
66
ibid para 63.
67
FKAG v Australia, UN doc CCPR/C/108/D/2094/2011, 20 Aug 2013, para 9.3.
classified as an ‘illegal immigrant’ and may be detained.68 The Law does not specify how
long a person should be detained, although it defines 10 years as the maximum possible
time.69 Articles 9(2) and (4) of the ICCPR further require that Indonesia give reasons to
those detained and allow a right of review.70 Asylum seekers and refugees are detained in
Indonesia without access to legal advice or a timely avenue to challenge their detention.
In relation to children, article 37(b) of the CRC protects the right to liberty and
security against arbitrary and unlawful deprivation and provides that detention may
be used ‘only as a measure of last resort’, and for the shortest appropriate time. The
Committee on the Rights of the Child has emphasized the need for State Parties to
explore alternatives to detention, noting that only exceptional circumstances will
justify the detention of a child. The fact that a child is unaccompanied or does not
have a formal legal status is insufficient to justify detention. In 2014, there were 2,507
asylum seeker and refugee children in Indonesia, of whom 798 were unaccompa-
nied. There were 358 children in detention, including 157 unaccompanied minors.71
In its 2014 Concluding Observations on Indonesia, the Committee on the Rights
of the Child expressed concern at Indonesia’s detention of children ‘for months or
years, without any judicial review and facing squalid and violent conditions’.72
3.1.4 The right to education

The right to free primary education under article 28(1) of the CRC cannot be dero-
gated from on the basis of, for example, immigration status. Discrimination in access-
ing education on the basis of nationality is prohibited under articles 2(1) and 28(1)
of the CRC. The Committee on the Rights of the Child has emphasized that ‘States
should ensure that access to education is maintained during all phases of the displace-
ment cycle’, and that children in detention retain the right to education.73 However, asy-
lum seeker and refugee children in Indonesia are often unable to access education, with
some variation from region to region. Nethery, Rafferty-Brown, and Taylor found that
‘the majority of Indonesia’s regional governments do not allow foreigners to send their
children to Indonesian schools’,74 and Human Rights Watch reported that children in
detention face even greater challenges in accessing education.75 As a result, UNHCR
68
Law No 6 of 2011 on Immigration, art 83(1).
69
ibid art 85(2).
70
ibid art 9(2) provides: ‘Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges against him’.
71
Suaka, ‘Update on Refugees and Asylum Seekers in Indonesia’ (23 July 2014) <http://suaka.
or.id/2014/07/23/update-on-refugees-and-asylum-seekers-in-indonesia/> accessed 23 Nov
2014; Deborah Cassrels, ‘“I Cry All Night”: The Child Asylum Seekers Stranded in Indonesia’
(The Guardian, 2 July 2014) <http://www.theguardian.com/world/2014/jul/02/i-cry-all-
night-the-child-asylum-seekers-stranded-in-indonesia> accessed 23 Nov 2014.
72
‘Concluding Observations of the Committee on the Rights of the Child: Indonesia’, UN doc
CRC/C/IDN/CO/3–4, 14 June 2014, para 65.
73
Committee on the Rights of the Child (n 45) paras 41 and 63.
74
Amy Nethery, Brynna Rafferty-Brown, and Savitri Taylor, ‘Exporting Detention: Australia-
Funded Immigration Detention in Indonesia’ (2012) 87 JRS 88, 93.
75
Human Rights Watch (n 55) 46.
reported that just 51 refugee children were enrolled in Indonesian schools in 2015.76
Refugee communities in West Java have recently sought to address this education gap
by starting their own schools.77
International human rights and customary law thus provide asylum seekers and
refugees in Indonesia with protection from refoulement, torture or other cruel, inhuman
or degrading treatment or punishment, the right to liberty and security, and the right
to education. However, de jure protection does not equate to the realization of these
rights in practice. There have been occasional reports of possible refoulement; detention
amounting to inhuman or degrading treatment or punishment; and arbitrary detention
in violation of the right to liberty and security. Human rights law provides an important
layer of formal rights, but respect for these rights varies, and asylum seekers and refu-
gees in Indonesia remain vulnerable to violations.
3.2 National law

Indonesian law is not silent on the status of asylum seekers and refugees, but it lacks
mechanisms for implementation. Article 28G(2) of the Indonesian Constitution inserts
the right to asylum into national law and Law No 39 of 1999 on Human Rights refers to
Indonesia’s ‘moral and legal responsibility to respect, execute, and uphold the Universal
Declaration on Human Rights’.78 Article 7 provides for the right to an effective remedy for
‘everyone’ in Indonesia, and article 28 includes the right to seek and obtain ‘political asy-
lum’, with an exclusion clause that broadly reflects article 1F of the Refugee Convention.
However, access to asylum is severely limited, despite the fact that chapter VI of
Law No 37 of 1999 on Foreign Relations provides a mechanism for the granting of
asylum. Article 25 empowers the President to grant asylum on a discretionary basis
– the only avenue for international protection in Indonesia. Article 26 provides that
asylum ‘shall be exercised in accordance with national legislation taking into account
international law, custom, and practice’. This provision seeks to strike a balance
between Indonesia’s obligations under international law and national legal standards.
Indonesian law does not require adherence to, for example, the grounds for protection
under article 1A of the Refugee Convention.79 Article 27 of Law No 37 provides that
the President, with advice from the Foreign Minister, shall determine refugee policy
by Presidential Decree. Notwithstanding these formal provisions, there is no evidence
that asylum has ever been granted under article 25. Likewise, no refugee policy has
ever been articulated, though a draft Decree is currently under consideration (see part
4.2 below). In practice, therefore, the right to asylum at the national level is unreal-
izable, and Indonesia delegates refugee status determination to UNHCR.80 Refugee
76
UNHCR Indonesia Fact Sheet (n 58).
77
Sally Clark and Carly Copolov, ‘Refugee-Run School in Indonesia a Model for Governments to
Emulate’ (The Conversation, 7 Mar 2016) <https://theconversation.com/refugee-run-school-
in-indonesia-a-model-for-governments-to-emulate-55378> accessed 14 Mar 2016.
78
Law No 39 (n 28), art 28(1) and (2) (unofficial translation) (1999) 165 State Gazette of the
Republic of Indonesia.
79
Reza (n 7) 122.
80
ibid 121; Penelope Mathew and Tristan Harley, Refugee Protection and Regional Cooperation in
Southeast Asia: A Fieldwork Report (Australian National University, Mar 2014) 16.
status, however, does not guarantee a durable solution; although UNHCR negotiates
resettlement for refugees in third countries, only a relatively small number are reset-
tled each year.81
Law No 6 of 2011 on Immigration governs the legal status of immigrants in
Indonesia, but makes no reference to asylum seekers or refugees.82 This means that,
under current national law, there is no legal category for people seeking, or recog-
nized as needing, international protection. Instead, under article 83(1), any person
without a valid visa and passport is classified as an ‘illegal immigrant’.83 Many asylum
seekers enter Indonesia clandestinely via Malaysia and without documentation, using
the services of people smugglers. Others arrive on tourist visas, which expire after
one month. At the point of apprehension without valid documentation, they become
illegal immigrants. Law No 6 of 2011 on Immigration requires immigration officials
to place immigrants who lack proper documentation in detention, with exceptions
for children, the sick, women about to give birth, and victims of human trafficking or
smuggling.84
Law No 6 of 2011 focuses on criminalization, defining irregular migrants as victims
of trafficking and people smuggling rather than as people seeking, or recognized as
requiring, international protection, a characterization that has attracted some criti-
cism from human rights groups.85 In practice, however, most asylum seekers and refu-
gees are not detained because of the limited capacity of Indonesia’s detention system.
An administrative Directive from the Director-General of Immigration dealing spe-
cifically with the handling of immigrants seeking asylum allows immigrants to remain
in Indonesia upon presentation of an attestation letter from UNHCR, which verifies
that they are seeking international protection or have received recognition of refugee
status.86 In this way, the Directive protects asylum seekers and refugees from deten-
tion or deportation while their refugee status determination is pending, or after it is
approved. The Directive, although not legally binding, importantly prohibits refoule-
ment by Indonesian immigration officials, stating that ‘deportation to a country where
[the] life or freedom of an asylum seeker or a refugee may be threatened shall not be
taken’.
81
In 2014, eg, 838 refugees were resettled: UNHCR Indonesia Fact Sheet (n 58); IRIN, ‘Rohingya
Refugees in Indonesia Await Resettlement that Never Comes’ (25 Apr 2014) <http://www.
irinnews.org/report/99991/rohingya-refugees-in-indonesia-await-resettlement-that-never-comes>
accessed 4 Dec 2014.
82
Reza (n 7) 129.
83
Law No 6 of 2011 supersedes Immigration Law No 9 of 1992; Human Rights Working Group
(HRWG): Indonesian NGO Coalition for International Human Rights Advocacy, Alternative
Report of Indonesia’s ICCPR State Report (2013) para 61.
84
Law No 6 of 2011 on Immigration, arts 83(2) and 87.
85
See Missbach (n 8) 160.
86
Directive from the Director-General of Immigration of 2002 on Procedures Regarding Aliens
Expressing Their Desire to Seek Asylum or Refugee Status, No F-IL.01.10-1297, 30 Sept 2002;
Taya Hunt and Nikola Errington, ‘The Search for Protection in Souteast Asia’ in Angus Francis
and Rowena Maguire (eds), Shifting Powers Protection of Refugees and Displaced Persons in the Asia
Pacific Region (Ashgate 2013) 64.
Indonesian law also protects asylum seekers and refugees from violations of core
rights found in general human rights law. With regard to torture, the Indonesian
Constitution provides that ‘Each person has the right to be free from torture or inhu-
man and degrading treatment’, and that this freedom is among a group of non-dero-
gable rights.87 It is clear from this expansive construction that the prohibition extends
to all people in Indonesia and not merely to citizens or residents. Articles 1 and 4 of
Law No 39 of 1999 on Human Rights define and prohibit torture in line with the CAT,
while article 34 further provides that: ‘No one shall be subjected to arbitrary arrest,
detention, torture and exile’. Article 28C(1) of the Constitution provides for the right
to education for all persons in Indonesia.
Although Indonesian law formally recognizes the right to seek and obtain asylum,
national law does little to assist asylum seekers and refugees in need of international
protection. To the author’s knowledge, asylum has never been granted under national
law, making the right to asylum inaccessible, and local integration impossible. The
Indonesian Constitution and Law No 39 of 1999 on Human Rights protect against tor-
ture in absolute terms. Law No 39 of 1999 further protects against arbitrary detention.
Despite these formal protections, however, asylum seekers and refugees do experience
human rights violations. It is clear that there remain gaps in the protection of asylum
seekers and refugees in Indonesia.
4. F U T U R E P RO S P E CTS F O R R E F U G E E P ROT E CT I O N
Thus far, this article has focused on the legal status of asylum seekers and refugees in
Indonesia, historically and today. This part assesses the future prospects of refugee
protection in Indonesia, taking a regional and national lens to legal developments
in this field. It considers regional soft law expressions of support for human rights;
the role of ASEAN with respect to asylum seekers and refugees; and Indonesia’s
bilateral relationship with Australia. Finally, it discusses developments on a national
level, focusing on the long-awaited draft Presidential Decree on asylum seekers and
refugees.
4.1 Regional trends

Southeast Asian States have simply ‘never felt obliged’ to sign on to refugee law.88
Indonesia, Laos, Malaysia, the Philippines, and Singapore have argued that economic
costs of accession are too great,89 while Malaysia recently argued that ‘the huge pres-
ence of refugees … may be a potential threat to national security’.90 Indonesia has
further said that the transnational drug trade and fear of creating a pull factor prevent
ratification.91
A number of regional soft law instruments provide some support for the rights
of refugees. The Bangkok Declaration on Human Rights of 1993 was welcomed as
87
Constitution of the Republic of Indonesia 1945, arts 28G(2) and 28(I).
88
Davies (n 12) 225.
89
ibid 10; Missbach (n 8) 122.
90
Mathew and Harley (n 80) 12.
91
ibid 15.
a step forward for human rights in Southeast Asia. Produced before the 1993 World
Conference on Human Rights, article 11 emphasizes ‘the importance of guaranteeing
the human rights and fundamental freedoms of vulnerable groups such as … refugees
and displaced persons’.92 However, the Declaration also balances human rights against
State sovereignty: article 5 stresses ‘the principles of respect for national sovereignty
and territorial integrity as well as non-interference in the internal affairs of States’.
The Bangkok Principles on Status and Treatment of Refugees, first adopted in 1966
by the Asian–African Legal Consultative Organization, and rearticulated in 2001,
explicitly recognize the right to seek asylum and the principle of non-refoulement.93
In addition, the Principles extend the definition of a refugee beyond article 1A of the
Refugee Convention, providing that:
The term ‘refugee’ shall also apply to every person, who, owing to external aggres-
sion, occupation, foreign domination or events seriously disturbing public order
in either part or the whole of his country of origin or nationality, is compelled
to leave his place of habitual residence in order to seek refuge in another place
outside his country of origin or nationality.94
Goodwin-Gill and McAdam highlight that, for many Asian States, the Bangkok
Principles ‘are the only agreed statements of refugee protection principles which are
applied throughout the region’.95 Nevertheless, the Principles remain non-binding and
do not require States to treat refugees in accordance with international law. Davies finds
that they have had ‘little discernible effect on Asian state practice in relation to refugees’.96
In the context of ASEAN, asylum seeker and refugee issues have historically been
considered within the domestic sphere of individual Member States, leaving no forum
for ASEAN leaders to cooperate in the field of asylum and refugee policy. This may
be explained by the non-interference principle, a result of ASEAN’s ‘preference for
decision-making through consultation and consensus-formation and its respect for the
individual sovereignty of States’.97 That a commitment to refugee law may require States
to break the non-interference principle could be a factor in dissuading countries from
ratifying the Refugee Convention.98
92
‘Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights’,
World Conference on Human Rights, Bangkok, 29 Mar–2 Apr 1993, UN doc A/CONF.157/
PC/59, 7 Apr 1993.
93
Final Text of the Asian–African Legal Consultative Organization (AALCO), 1966 Bangkok
Principles on Status and Treatment of Refugees, AALCO’s 40th Session, New Delhi (adopted 24
June 2001), arts II and III.
94
ibid art I(2).
95
Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP
2007) 213.
96
Davies (n 12) 4.
97
Susan Kneebone, ‘ASEAN and the Conceptualization of Refugee Protection’ in Francesca
Ippolito and Ademola Abass (eds), Regional Approaches to the Protection of Asylum Seekers: An
International Legal Perspective (Ashgate 2014) 296.
98
Reza (n 7) 132.
However, there are signs that the principle of non-interference may be loosening,
opening the door to the development of asylum and refugee rights. Indonesia, the larg-
est member and an emerging regional leader, is sensitive to human rights criticism and
has prioritized human rights within ASEAN.99 The ASEAN Human Rights Declaration
of 2012 represents an important soft law development for human rights in Southeast
Asia and includes ‘a cautious beginning’ in relation to refugee law.100 Article 16 provides
that: ‘Every person has the right to seek and receive asylum in another State in accord-
ance with the laws of such State and applicable international agreements’ (emphasis
added). Article 15 includes the right to leave any country, an important element of the
right to seek asylum. The Declaration does not, however, expressly include the prohibi-
tion against refoulement and the ASEAN Intergovernmental Commission on Human
Rights has no mandate in relation to refugee matters.
That is not to say, however, that the principle of non-interference is dead and buried.
ASEAN’s failure to respond to the Rohingya humanitarian crisis in 2015 points to con-
tinued adherence to the principle vis-à-vis Myanmar and its treatment of the Rohingya
minority.101 The issue flared in 2015 with an estimated 8,000 Rohingya and Bangladeshi
asylum seekers stranded on boats in the Andaman Sea. ASEAN was silent, leaving indi-
vidual Member States to respond.102
Finally, Indonesia’s bilateral relationship with Australia influences the status of asy-
lum seekers and refugees in the country. Australia is the intended destination of most
asylum seekers and refugees in Indonesia, and the two countries cooperate in a range
of areas related to these groups.103 Over the past 15 years, Australia has developed a
robust deterrence regime, designed to prevent asylum seekers arriving by boat. A key
aspect of this model is the range of migration control and offshore processing arrange-
ments with regional States, including Indonesia. Observers have noted that Australian
policy is underpinned by border control rather than by human rights and refugee law
objectives.104
99
Dave McRae, ‘More Talk than Walk: Indonesia as a Foreign Policy Actor’ (Lowy Institute for
International Policy, 27 Feb 2014); Missbach (n 8) 155.
100
Kneebone (n 97) 312.
101
Susan Kneebone, ‘Comparative Regional Protection Frameworks for Refugees: Norms
and Norm Entrepreneurs’ (2016) 20 International Journal of Human Rights 153; Sarnata
Reynolds, Myanmar: A Tipping Point for Rohingya Rights? (Refugees International Field
Report, 2014).
102
Atin Prabandari, ‘To Solve Boat People Crisis, ASEAN Has to Engage with Myanmar’ (The
Conversation, 11 June 2015) <https://theconversation.com/to-solve-boat-people-crisis-asean-
has-to-engage-with-myanmar-42430> accessed 28 Aug 2015.
103
A significant amount of scholarship exists on Indonesia–Australia cooperation in this area.
See Nethery, Rafferty-Brown, and Taylor (n 74); Amy Nethery and Carly Gordyn, ‘Australia–
Indonesia Cooperation on Asylum-Seekers: A Case of “Incentivised Policy Transfer”’ (2014)
68 Australian Journal of International Affairs 177; Mary Crock and Daniel Ghezelbash,
‘Do Loose Lips Bring Boats? The Role of Policy, Politics and Human Rights in Managing
Unauthorised Boat Arrivals’ (2010) 19 Griffith Law Review 238; Taylor and Rafferty-Brown
(n 11).
104
McAdam (n 3) 435.
Since 2000, the Regional Cooperation Model has provided for Australian fund-
ing of detention centres in Indonesia, administered by the International Organization
for Migration (IOM).105 Australia has encouraged Indonesia to detain asylum seek-
ers in an ‘incentivised policy transfer’.106 Australia also funds the Jakarta Centre for
Law Enforcement Cooperation,107 where Australian police train their Indonesian
counterparts in the investigation and disruption of people-smuggling operations,108
and station customs and border protection officers in Indonesia to ‘coordinate efforts
to prevent and disrupt maritime people smuggling’.109 In 2013, Australia formally
requested that the Indonesian government tighten visa conditions for Iranians enter-
ing the country.110
Indonesia’s porous borders and tolerance of asylum seekers and refugees have
frustrated Australian efforts to influence Indonesian policy. Missbach points out that
Indonesia ‘has at times complied only reluctantly with Australia’s requests’.111 More
recently, Australia has taken a ‘beggar thy neighbour’ approach, resorting to unilateral
measures such as the turning back of boats into Indonesian sovereign waters, without
the country’s authorization.112 In 2013–14, Australian vessels entered Indonesian ter-
ritorial waters a number of times, giving rise to significant tension and a temporary
suspension of all cooperation in this field. In sum, therefore, Indonesia’s bilateral rela-
tionship with Australia tends to focus on deterrence and border control, rather than on
refugee protection.113
105
Australian Government, Department of Immigration and Border Protection, Annual Report
2013–14, 149 <http://www.border.gov.au/ReportsandPublications/Documents/annual-
reports/DIBP_AR_2013-14.pdf>.
106
Nethery and Gordyn (n 103).
107
See Jakarta Centre for Law Enforcement Cooperation <http://www.jclec.com>; Thomas
Gammeltoft-Hansen and James C Hathaway, ‘Non-Refoulement in a World of Cooperative
Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235.
108
Seven training programs on people-smuggling investigations were carried out in 2013. Jakarta
Centre for Law Enforcement Cooperation, Annual Report 2013, 91–98.
109
Harriet Spinks, Cat Barker, and David Watt, ‘Australian Government Spending on Irregular
Maritime Arrivals and Counter-People Smuggling Activity’ (Australian Parliamentary Library,
4 Sept 2013) 23 (Table 8). Officers are also stationed in Sri Lanka and Malaysia.
110
‘Indonesia to Change Visa Requirements for Iranians Entering the Country Following Request
from PM Kevin Rudd’ (ABC News, 19 July 2013) <http://www.abc.net.au/news/2013-07-18/
indonesia-to-change-visa-requirements-for-iranians/4829434> accessed 16 Aug 2013.
111
Missbach (n 8) 178.
112
Shalailah Medhora and Ben Doherty, ‘Australia Confirms 15 Boats Carrying 429 Asylum Seekers
Have Been Turned Back’ (The Guardian, 28 Jan 2015) <http://www.theguardian.com/australia-
news/2015/jan/28/australia-confirms-15-boats-carrying-429-asylum-seekers-have-been-
turned-back> accessed 10 Mar 2015.
113
At the multilateral level, Indonesia and Australia are co-chairs of the Conference on People
Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process),
established in 2002. According to Kneebone, the Bali Process broadly sets a restrictive
approach to asylum seekers based on deterrence and a ‘securitized’ discourse: Kneebone
(n 12) 598.
4.2 National trends

As discussed above, article 27 of Law No 37 of 1999 on Foreign Relations provides for a
Presidential Decree setting out Indonesia’s refugee policy. A draft Decree is currently in
development. If adopted, it will provide a national legal framework for the handling of
asylum seekers and refugees. Thus far, two versions of the draft Decree have been made
public: the first during Susilo Bambang Yudhoyono’s presidency, and the second under
current President, Joko Widodo.114 The draft Decree represents an opportunity for
Indonesia to clarify its approach to asylum seekers and refugees, and to move beyond
informal tolerance of their presence to a commitment to key refugee law norms. The
development of a national asylum law also demonstrates Indonesia’s engagement with
refugee policy on its own terms.
The earlier version of the draft Decree provided for a relatively robust set of rights
for asylum seekers and refugees, including respect for the principles of non-refoulement,
non-penalization for unauthorized entry, and non-discrimination, as expressed in
the Refugee Convention.115 The earlier draft Decree further provided that Indonesia
respects the basic rights and freedoms of asylum seekers and refugees in its territory. A
substantive definition of who is a refugee is not provided; instead, a ‘refugee’ was char-
acterized as a foreigner holding a refugee card issued by UNHCR. The term ‘asylum
seeker’ was similarly defined by the presence of UNHCR documentation. The earlier
draft Decree further allowed for access to education for child asylum seekers and refu-
gees, and explicitly recognized the principle of the best interests of the child.116
The earlier draft provided for the detention of asylum seekers, but there were exemp-
tions for vulnerable groups.117 The list of exceptions was similar to the existing Directive
from the Director-General of Immigration, but the earlier draft Decree also exempted
families from detention. Recognized refugees could be placed in UNHCR-managed
accommodation or other arrangements authorized by the Indonesian government.
This would have represented a significant loosening of immigration detention policy, in
recognition of Indonesia’s human rights treaty obligations.
By contrast, the more recent 2015 version of the draft Decree provides fewer pro-
tections. The draft includes the principles of non-refoulement, non-penalization, and
non-discrimination, but states that Indonesia will deport people who do not qualify
as refugees (following refugee status determination). On the face of it, this ignores
Indonesia’s broader non-refoulement obligations under human rights law.118 The 2015
draft Decree defines asylum seekers and refugees in more substantive terms than the
earlier draft Decree, with the refugee definition being drawn directly from the Refugee
Convention.119
114
Both drafts are only available in Indonesian. See Draft Presidential Decree on the Handling of
Asylum Seekers and Refugees 2014; Draft Standard Procedures on the Handling of Asylum
Seekers and Refugees 2015. Thank you to Antje Missbach for providing copies of these
documents.
115
Draft Presidential Decree on the Handling of Asylum Seekers and Refugees 2014, art 16.
116
ibid art 14.
117
ibid art 12.
118
Draft Standard Procedures on the Handling of Asylum Seekers and Refugees 2015, part II art 2.
119
ibid part I art 3.
In relation to detention, the 2015 draft Decree carves out exceptions for vulnerable
groups, including families, with reference to article 83(2) of Law No 6 on Immigration
of 2011 (which does not, however, exempt families from detention – an ambiguity that
will need clarification).120 Recognized refugees will not be detained, but Indonesia’s
preferred durable solution is that of voluntary repatriation.121 Unlike the earlier version,
the 2015 draft Decree does not include access to education or references to the best
interests of the child.
The Presidential Decree remains to be finalized, but the drafts provide a useful guide
to how a national legal approach to asylum seekers and refugees is likely to develop. The
new Decree is unlikely to provide durable solutions for those in transit, since Indonesia
remains reluctant to provide local integration for refugees. Whether access to basic
rights, such as education and employment, will be included remains to be seen. On a
positive note, the development of the Presidential Decree shows Indonesia’s interest in
setting out a legal framework for asylum seekers and refugees on its territory.
5. CO N C LU S I O N S
Indonesia’s historical role as a transit country for asylum seekers and refugees is
unlikely to change any time soon. However, the increase in irregular migration within
Southeast Asia, together with the cutting off of the possibility of onward passage to
Australia, means that transit has become protracted. Asylum seekers and refugees in
Indonesia face an uncertain present and future. A minimum patchwork of rights keeps
the majority subsisting without risk of immediate harm, but the lack of a comprehen-
sive legal framework places them in limbo: there is no possibility of refugee protec-
tion in Indonesia, and resettlement in a third country can take many years, without any
guarantee that it will happen at all.
Within Southeast Asia, the absence of a regional human rights treaty and ASEAN’s
historical reluctance to interfere in issues perceived to be domestic have left limited
protection for refugees. The 2012 ASEAN Human Rights Declaration is an impor-
tant first step towards a regional treaty, but at present it remains firmly in the realm of
soft law. Cooperation with Australia focuses efforts on deterrence and border control,
rather than on rights and protection, although Indonesia is reluctant to act punitively
towards asylum seekers and refugees. Indonesia may soon legislate to clarify the sta-
tus of asylum seekers and refugees on its territory. Although the Presidential Decree is
unlikely to provide durable solutions in the country, it may represent a commitment to
the international refugee regime and would – for the first time – articulate the status of
asylum seekers and refugees in Indonesia.
120
ibid part III art 5(c).
121
ibid part III arts 7 and 8.

Article 19 The Status of Asylum Seekers and Refugees in Indonesia.

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Article 19 The Status of Asylum Seekers and Refugees in Indonesia.

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International Journal of Refugee Law, 2016, Vol. 28, No.

of this administrative (non–legally binding) instrument provided that ‘political refugees’

3.1 International law

ultimately returned is unknown. In 2012, 13 Iranian asylum seekers were deported.50 In

3.1.3 The right to liberty and security

3.1.4 The right to education

3.2 National law

4.1 Regional trends

4.2 National trends

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