UNDERGRADUATE THESIS
This Undergraduate Thesis is submitted as one of the requirement to obtain the degree of Bachelor of Laws at Faculty of Law Universitas Muhammadiyah
Yogyakarta
Name : Medisita Nurfauziah Istiqmalia
Student Number : 20120610198
Faculty : Law
Major : Law Science (International Program for Law and Sharia)
Field of Study : International Law
FACULTY OF LAW
i
This Undergraduate Thesis is submitted as one of the requirement to obtain the degree of Bachelor of Laws at Faculty of Law Universitas Muhammadiyah
Yogyakarta
Name : Medisita Nurfauziah Istiqmalia
Student Number : 20120610198
Faculty : Law
Major : Law Science (International Program for Law and Sharia)
Field of Study : International Law
FACULTY OF LAW
ii
PROTECTION OF ROHINGYA REFUGEES IN INDONESIA
ACCORDING TO THE INTERNATIONAL REFUGEE LAW”, has never been for the purpose of obtaining a degree submitted to other institution and, to the extent of my knowledge, does not contain contribution written and published by
any another author prior to the submission of this Legal Research unless expressly
referred to otherwise in its contents, included in the References and its content is
truly the work of my own.
Written by:
Name : Medisita Nurfauziah Istiqmalia Student Number : 20120610198
Faculty : Law
Major : International Program for Law and Sharia (IPOLS)
University : Universitas Muhammadiyah Yogyakarta
Yogyakarta,
iii
This Undergraduate Thesis dedicate to:
My Lord, Allah SWT Prophet Muhammad SAW
Families
My father: M. Chanifuddin My mother: Sri Agoeng Prapnawati My Brother: Muhammad Arterio Chanifuddin
My sisters: D’yasa Cessarisinta Hanief and Lareyna Kyneta Hanief
iv
Assalamualaikum wr.wb
First of all, the author is grateful to Allah SWT, The Most Merciful and
Most Gracious and salawat is for the prophet Muhammad SAW for all of the
blessing given to me to accomplish my Undergraduate Thesis entitled “The
Protection of Rohingya Refugees in Indonesia According to the International Refugee Law” at Universitas Muhammadiyah Yogyakarta. I would like to
express my gratitude to my advisors, Dr. M. Nur Islami, S.H., M.Hum, and Mr.
Yordan Gunawan, S.H., Int. MBA who have guided me with patient, advice,
suggestions, wisdoms, motivations, and compassions.
I would like to say thanks to Dr. Trisno Raharjo Raharjo, S.H., M.Hum as
the Dean of Faculty of Law UMY, Mr. H. Nasrullah, S.H., S.Ag, MCL as the
Director of International Program for Law and Sharia (IPOLS) Faculty of Law
UMY, Dr. M. Khaeruddin Hamsin,, Lc., M.A as the Director of International
Centre for Law and Sharia Studies (ICLASS) Faculty of Law UMY, Mr. Iwan
Satriawan, S.H., MCL (Ph.D. Cand), Mr. Muhammad Endrio Susilo, S.H., MCL
(Ph.D. Cand), Mrs. Hj. Fadia Fitriyanti, S.H., M.Hum, M.Kn (Dr. Cand) and all of
the Lecturers in the Faculty of Law Universitas Muhammadiyah Yogyakarta.
I address special gratitude to my parents: the late dr. H.M. Channifudin
MH.Kes and Ir. Hj. Sri Agoeng Prapnawati who gave unlimited supports,
v
much. Thanks to all of my fellows in International Program for Law and Sharia,
especially batch 2012. Last but not least, for those who helped me to finish this
Undergraduate Thesis, only God may return the kindness.
Finally, I realize that this thesis is far from perfection and there are so
many mistakes, thus correction and feedback from the guides and readers are very
welcomed. I hope this undergraduate thesis may help the development in
Indonesia and could have benefits for all human beings, Amen.
Yogyakarta,
vi
ABSTRACT ... i
APPROVAL PAGE ... ii
ENDORSEMENT PAGE ... iii
DECLARATION PAGE ... iv
DEDICATION PAGE ... vi
FOREWORD ... vii
TABLE OF CONTENTS ... ix
LITS OF STATUES ... xi
LIST OF ABBREVIATION ... xii
CHAPTER I – INTRODUCTION A. Background of Research ... 1
B. Research Problem ... 5
C. Research Objective ... 6
D. Research Advantages ... 6
E. Systematic of Writing ... 7
CHAPTER II – LITERATURE REVIEW A. The Concept of Refugee ... 10
B. International Refugee Law ... 19
C. Non-refoulement Principle ... 23
vii
C. Method of Collecting Data ... 37
D. Method of Data Analysis ... 38
CHAPTER IV – FINDING AND ANALYSIS A. Overview of the History of the Rohingyas Ethnic ... 39
B. The Protection of Refugees according to International Refugee Law ... 46
C. The Protection of the Rohingya refugees in Indonesia ... 53
1. The Obligations of Indonesia as a Transit State ... 53
2. The Cooperation of UNHCR to Resolve Rohingya Refugees Case ... 59
CHAPTER V– CONCLUSION AND SUGGESTION A. Conclusion ... 65
B. Suggestion ... 66
viii
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishments
Convention Relating Status of Refugees 1951
Protocol Relating to the Status of Refugees 1967
The 1945 Constitution of the Republic of Indonesia
ix
ECOSOC : United Nations Economic and Social Council
IOM : International Organization for Migration
IRO : International Refugee Organization
UN : United Nations
UNHCR : United Nations High Commissioner for Refugee
i
In recent decades the phenomenon of refugees increases year by year and becomes the attention of the international community. The states are supposed to be a safe place to live for its citizens, on the contrary their own government is the source of their torture. They, the Rohingyas is one of example of a state which do persecution and inhumane treatment toward their citizens. The Rohingyas is a minority ethnic which subjected a torture done by the junta military of Myanmar. The Rohingyas are stateless people, and they have no protection because the Government of Myanmar did not give the nationality status and did not acknowledge them as the citizens of Myanmar. That is the reason why the Rohingyas fled to another country to get a safe place to live. The problem arises when the Rohingyas came to Indonesia, and Indonesia has not ratified the 1951 Convention and its Protocol. The purpose of this research is to know and explain the protection of refugees according to the international refugee law also to understand the implementation of Indonesia to give the protection of the Rohingya refugees. This research uses normative legal research with statute and case
approaches. By using a qualitative descriptive method, this study analyzes the
Rohingya refugees according to the international refugee law such as 1951 Convention Relating to the Status of Refugees and 1967 Protocol. The result shows that the international protection for refugees is already protected by the 1951 Convention, and its protocol establishes fundamental rights to be acquired for refugees. Although Indonesia is non-state parties, Indonesia as a transit state did not force the Rohingyas to return to their habitual residence and facilitate the emergency needs of the Rohingyas. The Indonesian government should ratify and implement the 1951 Convention and its protocol to give status determination in this case is the Rohingyas.
CHAPTER I INTRODUCTION
A. Research Background
More than 43 million people worldwide are now forcibly displaced as
a result of conflict and persecution, the highest number since the mid-1990s.
Several million people remain displaced because of natural disasters, although
updated statistics are not available. More than 15 million of the uprooted are
refugees who fled their home countries, while another 27 million are people
who remain displaced by conflict within their own homelands -- so-called
‘internally displaced people.’1
Hundreds of millions of people around the world are unable to meet
their needs on their own, and do not receive adequate protection or support
from their home states. These people, if they are to be provided for, need
assistance from the international community. If we are to meet our duties to
these people, we must have ways of knowing who should be eligible for
different forms of relief. One prominent proposal from scholars and activists
has been to classify all who are unable to meet their basic needs on their own
as "refugees," and to extend to them the sorts of protections established under
the United Nations Refugee Convention. Such an approach would expand the
traditional refugee definition significantly 2
1 Anonymous, “The Numbers”, United Nations Global Issues, taken from
http://www.un.org/en/globalissues/briefingpapers/refugees/ accessed on November 30th 2015 at 12.30 p.m
Two United Nations agencies, the UN High Commissioner for
Refugees (UNHCR) and the UN Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA), are responsible for safeguarding the
rights and well-being of the world’s refugees. Major refugee populations include Palestinians (4.8 million), Afghans (2.9 million), Iraqis (1.8 million),
Somalis (700,000), Congolese (456,000), Myanmarese (407,000), Colombians
(390,000), Sudanese (370,000).3
Based on geographical location, Indonesia is located between the
continent of Asia and Australia, and also between the Indian Ocean and the
Pacific Ocean. Thus, the area of Indonesia is at the intersection, which is of
significant importance in relation to the summer climate and the economy. The
position of Indonesia which is located between two oceans and two continents,
make Indonesia a strategic place for the movement and also a refugee transit,
mostly toward the Australian continent. Since 1999, Indonesia has become a
transit point especially to the refugees from the Middle East, mostly heading
to Australia's Christmas Island. 4
There are around 10,000 refugees and asylum seekers in Indonesia.
Indonesia is not a party to the 1951 Convention relating to the Status of
Refugees (Refugees Convention) or the 1967 Protocol. Asylum seekers and
refugees (and stateless people) here face difficulties staying in the country.
Asylum seekers and refugees in Indonesia are not permitted to work and to
3 United Nations Global Issues, Op.Cit.
4 Yahya Sultoni, 2014, Alasan Indonesia Belum Meratifikasi Konvensi 1951 Tentang Pengungsi
receive social benefits from the Government of Indonesia. The Government of
Indonesia allows them to stay here while they have current registration
documents from the Office of the United Nations High Commissioner for
Refugees (UNHCR).5 Indonesia as non-state parties of the 1951 Convention
and 1967 Protocol, does not have authority to grant Refugee Status
Determination, thus the regulation of the refugees established by UNHCR
(United Nations High Commissioner for Refugees) in accordance to the
mandate received by UNHCR Statute of 1950.6
Myanmar is one of the countries in ASEAN that makes the citizens feels
danger to stay in their own country, Myanmar is one of the worst violators of
human rights. The Government of Myanmar did not recognize that the
Rohingyas as citizen in Myanmar and didn’t give nationality status to them.
With this conditions they become stateless person and they don’t have nationality protection.
Inhumane treatment by the government of Myanmar to the Rohingyas
is long enough to happen. With the majority of the people of Myanmar are
Buddhist religion, they did discrimination against the Rohingyas. The
differences of religion in Myanmar against ethnics Rohingya are very obvious.
They are ostracized, even they are killed in open places such as highways.
5 Anonymous, "Para Pengungsi dan Pencari Suaka di Indonesia”, Indonesian Civil Society Network for Refugee Rights Protection, taken from http://suaka.or.id/public-awareness/refugees-and-asylum-seekers-in-indonesia/ accessed on December 17th 2015 at 2.13 p.m.
That’s why makes the Rohingyas chose to leave Myanmar and sought a new
and better life than to risk their life in Myanmar.7 The Rohingya ethnic left
Myanmar secretly, because it was too risky for them if they are caught by he
military junta of Myanmar, they will be end up in the jail.
Recently, the Government of Myanmar withdraw a "white card" which
is the only official identity card of the Rohingyas. The white card belonging to
the Rohingya people was declared invalid since March 31, 2015. The white
card is an identification card that is given to people who live in Myanmar, but
did not get official status as a resident, resident association, and resident’s
neutral, or foreign nationals. White card holder’s means they are not Myanmar
citizens or foreign citizens. Along with the white card withdrawal, the
Rohingya people also lose the right to participate in elections (elections). In
accordance with the referendum held in 2008, the white card holders get the
right to vote in elections. Cancellation of President Thein Sein has closed the
opportunity to participate in Myanmar Elections, 2015 for the Rohingya
people.8
Last year, hundreds of the Rohingyas fled from their homeland because
of human right abuses and psychological pressures. They used boats to flee to
safe places to live. They stayed in the boat without food and water. Even some
people jumped into the sea because they're live jostle in the boat. Finally, they
7 Anonymous, May 2015, “Jumlah Pengungsi Rohingya di Indonesia Capai 11.941 Orang”, Aceh Tribun News, taken from http://aceh.tribunnews.com/2015/05/19/jumlah-pengungsi-rohingya-di-indonesia-capai-11941-orang, accessed on October 27th 2015, at 6.41 p.m.
were found by fishermen in Aceh in deplorable conditions. Until nowadays
there are displaced Rohingya Muslims in Indonesia as many as 11.941 people,
it is based on the data received by the Foreign Minister of Indonesia since 2005.
For the Rohingyas who arrived in Indonesia recently, the number was around
1,346 people. The first group of as many as 558 people, second until the third
group of as many as 664, followed by 47 and 96.9 The problem arises when
Indonesia until nowadays has not ratified the 1951 Convention and its protocol,
and Indonesia also does not have any regulations to protect the refugees.
Hence, the significance of this proposed research needs to be studied
further on the protection of refugee in Indonesia and analyze the way of
protection of refugee based on International Refugee Law especially in this
case is the Rohingyas. It will focus on the implementation of the International
Refugee Law to protect the right of the Rohingyas in Indonesia.
B. Research Questions
Based on the background that has been explained by the author above,
there are two legal problems as the guidance to do the legal research those are:
1. How is the protection of refugee according to the international
refugee law?
2. How does the protection of the Rohingya refugees in Indonesia?
C. Research Objective
There are two purposes of conducting this legal research, which are the
objective and subjective purposes:
1. Objective Research
a) Based on the research questions, this research is to know deeply
about the protection of refugees according to international refugee
law.
b) To understand the implementation and obligation of Indonesia
towards refugee protection such as in the case of Rohingya people.
2. Subjective Research
The subjective purpose of conducting this legal research is to fulfill the
requirement from the International Program of Law and Sharia, Faculty of Law
Universitas Muhammadiyah Yogyakarta to obtaining a Bachelor of Law
degree (Sarjana Hukum).
D. Research Advantages
This research is also expected to bring benefit both theoretical and practical:
1. Theoretical Advantages
In a theoretical perspective, this legal research is expected to give
benefit function as a legal contribution to develop the science especially on the
2. Practical Advantages
The Results of this research would give better understanding and
provide scientific reference regarding the refugee law which concern about the
protection of refugees according to International Refugee Law in the case of
the Rohingya refugees in Indonesia.
E. Systematic of Writing
This research consists of five chapters, namely Chapter I: Introduction.
Chapter II: Theoretical Framework. Chapter III: Research Methodology.
Chapter IV: Analysis and Discussion, and lastly, Chapter V: Conclusion and
Suggestion.
The purposes of this research are to learn deeply about the perspective
of international refugee law towards the protection of the Rohingyas in
Indonesia. Besides, this research will elaborate the topic systematically by
dividing it into five chapters.
In Chapter I, consisting of Introduction, the author will elaborate
general matters, such as background, research questions, research objective,
research advantages, and overview of the chapter. The background contains
about the protection of refugees according to international refugee law. Here,
the author uses the case of the Rohingyas, and focuses on the protection of
international refugee law.
Furthermore, Chapter II, Literature Review, the author will elaborate
definition of refugee, types of refugee, non-refoulement principle,
international refugee law such as the 1951 Convention on Relating to the Status
of Refugees and the 1967 Protocol relating to the Status of Refugees, historical
background of UNHCR, duties of UNHCR, and activity of UNHCR.
Moreover, it will elaborate more about the International Refugee Law and the
way to protect the refugee of the Rohingyas.
In Chapter III researcher will discuss the research method used for
conducting this undergraduate thesis. This research methodology consists of
the type of research, data collection, method of collecting data and method of
data analysis. The characteristic of research is a normative legal research. The
type of research will use statute approach and analytical approach. This
research will use material legal research taken from literatures consist of
primary legal material, secondary legal material and tertiary legal material.
Also the data finding method taken form literature research such as library
research. Then the method of data analysis in this research used systematical
analysis through juridical qualitative.
The fourth is Chapter IV, Research and Analysis. The author will
analyze the case with the normative legal research, with case approach. The
focus of this research is on the protection of refugees based on international
refugee law and the protection of the Rohingyas in Indonesia as non-state
parties of 1951 Convention also explain the principle of non-refoulement as
the basis of protection of refugee and the role of UNHCR to resolve the case
Finally, Chapter V, Closing, the author will conclude what has been
discovered in previous chapter about the protection of the refugee and the
rights of the Rohingyas in Indonesia according to International Refugee Law,
the author also will give the suggestion from the author toward the result of the
CHAPTER II LITERATURE REVIEW
A. The Concept of Refugee
1. The Definition of Refugee
The general definition of refugee is “Anyone looking for a safe place when
there is a danger that threatens their region.”1 On Oxford Learner’s Pocket
Dictionary, describes refugee a “persons forced to leave their country,
especially because of political or religious beliefs”2
Black’s Law Dictionary listed the definition of refugee as “A person who
flees or is expelled from a country, especially because of persecution, and seeks
haven in another country”3 There are two scholars who stated the definition of
refugees. Malcom Proudfoot gives the definition of refugee in the perspective
after World War II. He stated:
“These forced movements, ...were the result of the persecution, forcible
deportation, or flight of Jews and political opponents of the authoritarians governments; the transference of ethnic population back to their homeland or to newly created provinces acquired by war or treaty; the arbitatry rearrangement of prewar boundaries of sovereign states; the mass flight of the air and the terror of bombarment from the air and under the threat or pressure of advance or retreat of armies over immense areas of Europe; the forced removal of populations from coastal or defence areas under military dictation; and the deportation
for forced labour to bloster the German war effort.”4
1 Yudus Badudu, 1994, Kamus Bahasa Indonesia, Jakarta, Sinar Harapan, p.54
2 Anonymous, 2009, Oxford Learner’s Pocket Dictionary, Third Edition, Oxford, Oxford University Press, p. 360-361
3 Bryan A. Garner, 1999, Black’s Law Dictionary, Seventh Edition, Thomson West, St. Paul Minn, p.1307
According to Pietro Verri, he provides a definition of refugee by citing the
Article 1 UN Convention on the Status of Refugees on 1951, he stated: “[it]
applies to many person who has fled the country of his nationality to avoid
persecution or the threat of persecution.”5
The definition of refugee according to Statute of UNHCR clearly
mentioned on Article 6 (b):
“Any person who, as a result of events occurring before 1 January 1951
and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.”
The Article 1A (2) Convention relating to the Status of Refugees 1951,
mentioned that the definition of refugee is:
“…. as one who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, member boat of particular social group or political opinion, is outside the country of his nationality and unable or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having nationality and being outside the country of his former habitual residence as result of such events, is unable
or owing to such fear, is unwilling to return to it.”
This definition contains several important elements:6
5 Achmad Romsan, 2002, Pengantar Hukum Pengungsi Internasional, Bandung, Sanic Offset, p.36.
1. Well-founded fear: It is not necessary for the refugee to have already
become a victim of persecution. Fear of future persecution is
sufficient if such fear is not just subjective but has an objective basis
in the facts of the case.
2. Persecution: It usually takes the form of human rights abuse or
similar harm, but must reach a certain level of seriousness in order to
be regarded as relevant.
3. Convention grounds: What distinguishes refugees from other victims
of human rights violations who have left their country is the fact that
they are persecuted “for reasons of race, religion, nationality,
membership of a particular social group or political opinion”.
Whereas the grounds of race, religion and political opinion do not
usually give rise to any particular problems, there is considerable
debate today about the meaning of “social group”. In contrast, there
is widespread consensus that “nationality” not only denotes
citizenship but also ethnicity.
4. Outside the country of nationality or habitual residence: Flight is not
a necessary element of the refugee definition. Someone who has left
his country without having been persecuted at that time becomes a
refugee sur place when relevant circumstances change in a way that
would make him a victim of persecution were he then to return to that
country.
5. Unable or unwilling to avail himself of State protection: This last
by the country of origin is not available to the person concerned or if
he, in the light of what has happened or will happen to him, cannot
be reasonably expected to ask for such protection.
The definition of refugees according The Group of Governmental Experts
on International Co-operation to Avert News Flows of Refugees is:
“Refugees defined man-made disaster in the following terms: wars, armed
conflict, acts aggression, alien domination, foreign armed intervention, occupation, colonialism, oppressive segregationist and racially supremacist regimes practicing policies of discrimination or persecution, apartheid, violations of expulsions, economic and social factors threatening the physical integrity and survival, structural problems of development; manmade ecological disturbances and severe environmental
damages.”7
Someone become refugees because they feel danger, because of natural
disaster or man-made disaster. Refugee caused by natural disaster is protected
by their country and they can escape to another country to save their life. They
are able to ask for help on their origin country.
It is different when someone becomes a refugee because of man-made
disaster such as war, armed conflict, etc. The evacuation of refugees is out of
the country due to avoid prosecution and persecution in their country.
Sometimes these refugees occur because of political reasons, they also forced
to leave the country, and these people no longer receive protection from
government of their country. International Refugee Law only regulated refugee
caused by man-made disaster because they were not protected by their country.
This kind of refugee is very vulnerable to suppression of human rights.
According to the definition above, it is explained that there are two types
of refugees, the Internal Displaced Persons and refugees. The differences on
these two types of refugees are only within the scope of the region. Internal
Displaced Person is displaced out of a particular territory and occupies other
areas but still within the territory of their country, whereas refugee is a refugee
person who fled or was displaced to other regions out of their country.
2. Types of Refugee
a. Economic migrant
“Person, who, in pursuit of employment or a better overall standard
living (that is, motivated by economic consideration), leave their country to
take up residence elsewhere.”8
b. Internally Displaced Person (IDP)
Until the beginning of the 1990s, internally displaced persons were
defined negatively: they were people who had fled their homes, but who
were not refugees (having remained within their country). It is only recently
that some efforts have been made to devise a comprehensive definition of
internally displaced persons. An important step was taken in 1992 when the
UN Secretary-General proposed a working definition. That definition was
revised in 1998 and the Guiding Principles on Internal Displacement now
define internally displaced persons as: 9
“Persons or groups of persons who have been forced or obliged to
flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State
border.”
If we look more closely at the situation of internally displaced
persons, this bond is not completely severed, because they still remain
within the jurisdiction of their state which has a duty of protection towards
them. This has important implication for the nature of protection which can
be afforded to them. What must not be forgotten is the essentially statist
nature of international refugee law which is evidenced by the paramount
importance of the border-crossing requirement in the refugee definition: the
refugee is an unprotected alien who does not benefit from any protection,
whereas the internally displaced is an unprotected resident who requires
protection which is necessarily different in nature. Consequently, a legal
synthesis between refugees and the internally displaced is meaningless, and
a separate legal status should not be given to the internally displaced in
international law.10
9 Catherine Phuong, 2004, The International Protection of Internally Displaced Persons, United Kingdom, Cambridge University Press, p. 1-2
c. Mandate refuges
Mandates are used to refer to people who recognized his status as a
refugee by UNHCR in accordance with the functions, authority or mandate
established by the Statute of UNHCR. The term mandate refugees used for
refugees who were under the authority or mandate of UNHCR, such as:
1. People who are recognized as refugees by UNHCR, wherever they are,
before the entry into force of the 1951 Convention on April 22th, 1964
and before the entry into force of the 1967 Protocol on October 4th ,
1967.
2. People who are recognized as refugee by UNHCR who are outside the
state parties to the Convention in 1951 (after the entry into force of the
1951 Convention since April 22th, 1954) and / or its 1967 Protocol (after
the entry into force of this Protocol since October 4th, 1967). The
mandate stated the refugee is a person who meets the requirement of the
UNHCR Statute, as refugees and therefore the protection of the United
Nations, wherever they are inside or outside the State Parties to the 1951
Convention or its 1967 Protocol.11
d. Refugees sur place
“A person who was not a refugee when he left his country, but who
became a refugee at a late date. A person becomes a refugee sur place due
to circumstances arising in her country origin during her absence.”12
These are persons who have entered the host country for reasons
unrelated to questions of well-founded fear of persecution, such as
education, medical treatment or tourism. However, subsequent
developments render their return to the country of origin problematic. The
conditions in the person’s country of origin may change suddenly, placing
the person’s life and liberty in danger upon return—for example, a military
coup or ethnic strife. A person’s political activities in the host country may
also make it unsafe for her to return, because of political opposition. In this
case, refugee status is determined on the basis of individual apprehension of
persecution.13
e. Statutory refugees
“Persons who meet the definitions on international instruments
concerning refugees prior to the 1951 Convention are usually referred to
as “statutory refugees”.14
f. Stateless person
The 1954 Convention aims to provide stateless persons with a legal
status and in appropriate cases, residence, which would enable them to
access basic social and economic rights. Article 1 defines a stateless person
as one ‘who is not considered as a national by any State under the operation
of its laws’. Because the Convention does not permit derogations from
Article 1(1), the definition of a stateless person is binding upon all state
13 Human Rights Law Network, 2011, Refugee and the Law, Second Edition, Human Rights Law Network (HRLN), New Delhi, p. 13
parties. Moreover, the International Law Commission considers the
definition to be part of customary international law. The international legal
definition of a stateless person is set out in Article 1 of the 1954 Convention
relating to the Status of Stateless Persons, which defines a stateless person
as "a person who is not considered as a national by any State under the
operation of its law". This means that a stateless person is someone who
does not have a nationality of any country. Some people are born stateless,
while others become stateless over the course of their lives.15
One of the changes that occur in a country that can cause a person or
a group of people to lose citizenship is a succession of state. According to
Ian Brownlie “State succession arises when there is a definitive replacement
of sovereignty over a given territory in conformity with international
law”.16
g. War refuges
“Persons compelled to leave their country of origin as a result of
international or national armed conflicts are normally considered refugees under the 1951 Convention of 1967 Protocol. They do, however, have the protection provided for in other international instruments, i.e. the Geneva Convention of 1949, et.al. in the case of forces invasion and subsequent occupation, occupying force may begin to persecute segment of the populations. In such cases, asylum seekers may meet the conditions of the
Convention definition.”17
15 Sandra Mantu, 2015, Contingent Citizenship: The Law and Practice of Citizenship Deprivation
in International, European and National Perspectives, The Netherlands, Koninklijke Brill NV, p. 37
16 Kadarudin, Keterkaitan Antara Stateless Persons, Pencari Suaka dan Pengungsi, Jurnal Pengembangan Ilmu Hukum ‘Gratia’, Volume VIII, No I, 2012, p. 105
B. International Refugee Law
International law is a set of rules intended and created by sovereign states
exclusively. In other words, as stated by Lassa Oppenheim: [t]he law of nations
prescribes no rules as regards the kind of head of a State may have. Every State
is, naturally, independent regarding to this point, possessing the faculty of
adopting any constitution according to its direction. International law does not
generally address domestic constitutional issues, such how a national
government formed.18 International refugee law is a part of international law, it
is also a law that governs all matters concerning refugee including the standards
governing of the treatment of refugees.
International refugee law began on era of the 1920s. It is characterized
by the term refugee and non-refugee. Then, its development became known in
worldwide because there are some of famous figures such as Liisa Malkki,
Nicholas Xenos and Michael Dillon, who contributed in the form of making the
description and symbolism on terminology of refugee. At the beginning, only a
state is able to determine and recognize whether the person or group of people
is a refugee or not. Thus restrictions on refugee become full authority of each
country, as stated by Grahl Madsen: 19
“There is no such definition of “refugee” even in international law, only
‘fitting’ definitions. What is attainable through a distillation of international
legal instruments, policy, documents and politico-sociological indications is an idea of who might be accorded refugee status or at least protection under what
circumstances, in both the real and the ideal world”
18 Jawahir Thontowi, Pranoto Iskandar, 2006, Hukum Internasional Kontemporer, Bandung, PT Refika Aditama, p.2-3.
International refugee law function as the international legal system, in
terms of implementation and supervision carried out by international agencies.
But, it does not rule out the possibility that domestic law has an important role
in the implementation of international law.
After the World War I, the development of refugee law increasingly
exists with the current scope of the universal ratification of the 1967 Protocol
Relating to the Status of Refugees. There is an international community's
urgency to regulate the issue of refugees is in their region, for example in Africa,
Europe and Latin America.20 There are two legal bases on International refugee
law to regulate the refugee such as:
1. The 1951 Convention relating to the Status of Refugees
The Convention was adopted by the United Nations Conference of
Plenipotentiaries on the Status of Refugees and Stateless Persons, held at
Geneva from July 1951 and entry into force on April 22th 1954. The Conference
was convened pursuant to resolution 429 (V) 1 adopted by the General
Assembly of the United Nations on December 14th 1950.21 This Conventionis
the starting point of any matters of international refugee law. The convention is
one of the two refugee instruments, both of which are 1967 Protocol which is a
development of this convention.
20 Achmad Romsan, Op. Cit., p.13
The 1951 Convention defines what the term ‘refugee’ means then it
outlines a refugee’s rights including such things as freedom of religion and
movement, the right to work, education and accessibility to travel documents.
It also underscores, in turn, refugees’ obligations towards their host
governments. A key provision stipulates that refugees should not be returned to
a country where they fear persecution. It also spells out individuals or groups
of people who are not covered by the Convention.22
Person who has committed a crime his refers to an individual or against
peace, a war crime, a crime organization – government, rebels or against
humanity or a serious non-political another group – which forces people to do
crime outside the country of asylum cannot be covered by the Convention.23
2. The 1967 Protocol relating to the Status of Refugees
The 1967 Refugee Protocol is a treaty in international refugee law which
entered into force on October 4th 1967. The 1967 Protocol removes the
geographical and time limitations written into the original Convention under
which for the most part only Europeans involved in events occurring before
January 1st 1951, could apply for refugee status. As a result, it turned the
Convention into a truly universal instrument that could benefit refugees
22Christina Parmionova, “The 1951 Refugee Convention”, Slide Share, taken from
http://www.slideshare.net/WERI/The-1951-refugee-convention accessed on December 15th 2015 at 1.05 p.m
everywhere. Three-quarters of the world’s states have signed up to both the
1951 Convention and its Protocol.24
The Protocol is an independent instrument, adherence to which would
not be limited to States parties to the convention but also open to other States.25
Nevertheless, State parties may make reservations to articles of the Convention
other than to articles:
a. Article 1 (definition of the term refugee)
b. Article 3 (Non-discrimination)
c. Article 4 (Religion)
d. Article 16 paragraph 1 (free access to the courts of law)
e. Article 33 (Prohibition of expulsion or return/ Non-refoulement)
f. Article 36-46 (Information on national legislation, the provisions cover)
In wider context both of 1951 Convention and 1967 Protocol contains
three primary basis:26
a. The provisions relating to the definition of those who are not included in
the definition of refugees
b. The provisions governing the status of refugee law, including the rights and
obligations of refugees in the countries where they settled
24 Ibid.
25 Andreas Zimmermann, 2011, The 1951 Convention Relating to the Status of Refugees and Its
c. Other provisions relating to the application of refugees instrument from the
standpoint of administrative and diplomatic procedures.
C. Non-Refoulement Principle
Referring to the etymology refoulement term derived from the French
word. Refoulement defined as “expulsion or the return of a refugee from one
state to another”. Non-refoulement means “A refugee’s right of not being
expelled from one state to another, especially to one where him or her life or
liberty would be threatened”.27
According to Article 33 of the 1951 Convention relating to the Status of
Refugees, regulated non-refoulement principle which states that:
a) No Contracting State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories when his life or freedom
would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
b) The benefit of the present convention may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a danger
to the security of the country in which he is, or who, having been
convinced by a final judgement of a particularly serious crime, constitute
a danger to the community of that country.
An Expert Roundtable was organized by the United Nations High
Commissioner for Refugees and the Lauterpacht Research Centre for
International Law, University of Cambridge, UK, 9–10 July 2001, and the
general appreciation of the meeting was:28
a) Non-refoulement is a principle of customary international law.
b) Refugee law is a dynamic body of law, informed by the broad object and
purpose of the 1951 Refugee Convention and its 1967 Protocol, as well
as by developments in related areas of international law, such as human
rights law and international humanitarian law.
c) Article 33 applies to refugees irrespective of their formal recognition and
to asylum seekers. In the case of asylum seekers, this applies up to the
point that their status is finally determined in a fair procedure.
d) The principle of non-refoulement embodied in Article 33 encompasses
any measure attributable to the State which could have the effect of
returning an asylum seeker or refugee to the frontiers of territories where
his or her life or freedom would be threatened, or where he or she is at
risk of persecution, including interception, rejection at the frontier, or
indirect refoulement.
e) The principle of non-refoulement applies in situations of mass influx.
The particular issues arising in situations of mass influx need to be
addressed through creative measures.
f) The attribution to the State of conduct amounting to refoulement is
determined by the principles of the law on State responsibility. The
international legal responsibility to act in conformity with international
obligations wherever they may arise is the overriding consideration.
g) There is a trend against exceptions to basic human rights principles. This
was acknowledged as important for the purposes of the interpretation of
Article 33(2). Exceptions must be interpreted very restrictively, subject
to due process safeguards, and as a measure of last resort. In cases of
torture, no exceptions are permitted to the prohibition against
refoulement.
Article 53 of the Vienna Convention on the Law of Treaties also states: ‘A treaty is void if, at the time of its inclusion, it conflicts with a
peremptory norm of general international law… a peremptory
norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law
having the same character.’
Again Article 64 declares that ‘[i]f a new peremptory norm of
general international law emerges, any exiting treaty which is in conflict
with that norm becomes void and terminates. As noted in chapter 3, the
concept of jus cogens, of fundamental and entrenched rules of international
method of creation. The insertion of articles dealing with jus cogens in the
1969 Convention underlines the basic principles with regard to treaties.29
Also Article III (3) of the Principles concerning the Treatment of
Refugees adopted by the Asian-African Legal Consultative Committee at
its Eighth Session in Bangkok in 1966 provides that:
"No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory."
Non-refoulement is also regulated on Article 3 of the 1967
Decleration on Territorial Asylum that states that:
“No person referred to in article 1, paragraph 1, shall be subjected
to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to
persecution.”
The principle of non-refoulement is the cornerstone of asylum and
of international refugee law. Following from the right to seek and to enjoy
in other countries asylum from persecution, as set forth in Article 14 of the
Universal Declaration of Human Rights, this principle reflects the
commitment of the international community to ensure to all persons the
enjoyment of human rights, including the rights to life, to freedom from
torture or cruel, inhuman or degrading treatment or punishment, and to
liberty and security of person. These and other rights are threatened when a
refugee is returned to persecution or danger.30
This provision constitutes one of the basic Articles of the 1951
Convention, to which no reservations are permitted. It is also an obligation
under the 1967 Protocol by virtue of Article I (1) of that instrument. Unlike
some provisions of the Convention, its application is not dependent on the
lawful residence of a refugee in the territory of a Contracting State. As to
the words "where his life or freedom would be threatened", it appears from
the travaux préparatoires that they were not intended to lay down a stricter
criterion than the words "well-founded fear of persecution" figuring in the
definition of the term "refugee" in Article 1 A (2). The different wording
was introduced for another reason, namely to make it clear that the principle
of non-refoulement applies not only in respect of the country of origin but
to any country where a person has reason to fear persecution.31
D. International Organizations which Handle the Refugees
1. United Nations Relief and Rehabilitation Administration (UNRRA)
United Nations Relief and Rehabilitation Administration established in
1943 for the resettlement of refugees to their home countries as many as 30
30UN High Commissioner for Refugees, “UNHCR Note on the Principle of Non-refoulement”, Refworld, taken from http://www.refworld.org/docid/438c6d972.html accessed on February 5th 2016 on 11.14 a.m.
million displaced persons because of World War II. Resettlement refugees is a
major objective of the establishment of UNRRA. The duty of UNRRA is
increasingly difficult because there are 12 million Germany ethnics from East
Block who does not want to be repatriated. They claim that because of their
reasons of race, religion, and political opinion, they cannot return to their
habitual residence. But Uni Soviet rejects those argument and all of displaced
persons have to repatriation.32
2. International Refugee Organization (IRO)
International Refugee Organization set out the UN General Assembly on
December 15th, 1946. The IRO Constitution regulate the functions and authority
of the agency in the prevention and treatment of refugees. Therefore, it does not
regulate the rights and freedoms of refugees. The duties of IRO are: Repatriation
of refugees, Identification of refugees, Registration and Classification of
refugees, Public Relief of refugees, Legal Protection of refugees, and Politics
of refugees, Transportation of refugees and Resettlement.33
IRO tasks include not only the refugees to the events that occurred during
the World War II, but also refugees who recognized before the World War II.
IRO is a non-permanent organization, thus IRO does not regulate refugees after
the World War II. Therefore, this international institutions can no longer work
for the refugees after World War II. Then United Nations High Commissioner
for Refugee (UNHCR)34 is established to resolve the problem of refugees in the
world.
3. United Nations High Commissioner for Refugee (UNHCR)
The problem of refugees has long been a concern of the United Nations.
In 1946 the United Nations has adopted a specialized agency, the International
Refugee Organization (IRO) and took over The United Nations Relief and
Rehabilitation Agency (UNRRA). They help resettle around 1 million people
to flee to a third country, and put over 73,000 people displaced in their own
country.35 On December 14th, 1950 by the United Nations Assembly began to
work on January 1st, 1951. The initial formation of duties UNHCR only provide
security protection, food and medical assistance in emergency situations and
help find solutions for refugees for long periods of time. One of the solution is
to return the refugees to their country of origin, or find a new country for them
to start a new of their life.36
UNHCR is the agencies that originally formed to replace International
Refugee Organization (IRO). IRO is an agency which was first established to
deal with refugees. There are few differences between IRO and UNHCR, IRO
was founded on April 20, 1946 the function of establishment IRO is to deal with
the massive refugee problem created by World War II besides UNHCR has the
scope and broader authority for refugees. Refugees are divided into refugee
34Ibid.
caused by World War II or refugees emerging after the formation of the
UNHCR.
On 1954, the new organization won the Nobel Peace Prize for its
ground-breaking work in helping the refugees of Europe. Its mandate had just been
extended until the end of the decade. More than a quarter century later, UNHCR
received the 1981 award for what had become worldwide assistance to refugees,
with the citation noting the political obstacles face bt the organization. From
only 34 staff members when UNHCR was founded, it now has more than 9,300
national and international members of staff, including over 1,050 in UNHCR's
Geneva and Budapest Headquarters. The agency works in 125 countries, with
staff based in 109 main locations such as regional and branch offices and 341
often remote sub-offices and field offices.37
The Statute of the Office of the United Nations High Commissioner for
Refugees was adopted by the General Assembly on 14 December 1950 as
Annex to Resolution 428 (V) and UNHCR exist since January 1951. In
implementing their duties, UNHCR is guided by the mandate of United Nations
General Assembly and Economic and Social Council (ECOSOC). The Statute
of UNHCR 1950 explains the general function of UNHCR:
“Providing international protection and seeking permanent solution to the
problem of refugees by assisting Governments to facilitate the voluntary repatriation of such refugees, or their assimilation within the new national
communities”
Since its establishment UNHCR provides protection to refugees and in
cooperation with the governments of the world to find long-term solutions to
the problems faced by refugees. This is confirmed by Goodwin Gill who stated
that:
“UNHCR has a unique statutory responsibility to provide international
protection of refugee and, together with government, to seek permanent
solution to their problem”. 38
The kinds of protection functions described in the Statute of UNHCR,
include its supervision of law enforcement. During these five decades UNHCR
has been helping 50 million refugees. UNHCR has more than 5000 staff who
worked in more than 120 countries. Nowadays UNHCR handles more than 20
million refugees. UNHCR has the authority to provide international protection
for refugees and to find solutions to the problems faced by refugees. This
agency periodically reports its results to the United Nations General
Assembly.39
According to article 1 on Convention on Relating to the Status of Refugees
1951, there are nine (9) duties of UNHCR to provide for the protection of
refugees:
a) Promoting the conclusion and ratification of international conventions for
the protection of refugees, supervising their application and proposing
amendments thereto;
b) Promoting through special agreements with Governments the execution
of any measures calculated to improve the situation of refugees and to
reduce the number requiring protection;
c) Assisting governmental and private efforts to promote voluntary
repatriation or assimilation within new national communities;
d) Promoting the admission of refugees, not excluding those in the most
destitute categories, to the territories of States;
e) Endeavoring to obtain permission for refugees to transfer their assets and
especially those necessary for their resettlement;
f) Obtaining from Governments information concerning the number and
conditions of refugees in their territories and the laws and regulations
concerning them;
g) Keeping in close touch with the Governments and intergovernmental
organizations concerned;
h) Establishing contact in such manner as he may think best with private
organizations dealing with refugee questions;
i) Facilitating the co-ordination of the efforts of private organizations
concerned with the welfare of refugees.
When it was first established by the United Nations General Assembly in
refugees who had to leave their homeland after the World War II. To resolve
the refugee problem, the forms of assistance provided by UNHCR are:40
a) Help during major emergencies involving the movement of large number
of refugees;
b) Regular programmers in such field as education, health and shelter;
c) Assistance to promote the self-sufficiency of refugees and their
integration in host countries;
d) Voluntary repatriation;
e) Resettlement in third countries for refugees who cannot return to their
homes and who face protection problems in the country where they first
sought asylum.
For example, in 1997, approximately 55,000 new immigrants came to
Hong Kong. The existing number in the refugee camp was about 350,000
people, not including half a million or more the people from Cambodia in the
Thai border. In the end of June, a few of ASEAN countries announce on July
20 to 21 in Geneva that 65 governments responded to an invitation from the
United Nations General Secretaries to attend a conference related to
Indo-Chinese refugees. In general, there was an increase for the resettlement of
125,000 to 260,000 people.41
CHAPTER III
METHODOLOGY OF RESEARCH
A. Type of Research
This legal research will be conducted based on normative legal
research. Normative legal research is also called doctrinal legal research, it
means that normative legal research is performed and directed by reviewing
secondary data or library materials.1
Cohen and Olson defined legal research as follows:
“Legal research is the process of finding the law that governs activities
in human society. It involves locating both the rules which are enforced
by the states and commentaries which explain or analyze these rules.”2
Jacobstein and Mersky also defined legal research as follows:
“…seeking to find those authorities in the primary sources of the law
that are applicable to a particular situation. The search is always first for mandatory primary sources, that is, constitutional or statutory provisions of the legislature, and court decisions of the jurisdiction involved. If these cannot be located then the search focuses on location persuasive primary authorities, that is, decision from courts other
common law jurisdictions…
When in the legal search process primary authorities cannot be
located, the searcher will seek for secondary authorities”3.
This research uses statute approach and analytical approach. Statute
approach means that the researcher uses the legislations as the basis for
1 Amirrudin and H. Z. Asikin, 2006, Pengantar Metode Penelitian Hukum, Jakarta, PT. Grafindo Persada, p. 118
2 Morris L. Cohen and Kent C. Olson, 2013, Legal Research in a Nutshell, Eleventh Edition, USA, West Publishing Corporation, p.1
conducting the research. Any legal rules are the focus and become the
central topic into the research4, because it would tell regulations such as
Convention relating to the Status of Refugees 1951 and Universal
Declarations of Human Rights or other document relating to the issues of
refugees. The using of case approach in normative legal research aims to
understand the implementation of legal norms which is conduct in legal
practice pertaining to the Rohingya case.5
B. Data Sources
This legal research uses data sources taken from the literatures that
consist of primary legal sources, secondary legal sources, and tertiary legal
sources.
1. Primary legal sources
The primary legal sources consist of legally binding material
bound to all elements and refer to the several legislations related to the
refugees consist of:
a. Universal Declaration of Human Rights
b.The 1951 Convention relating to the Status of Refugees
c. The 1967 Protocol relating to the Status of Refugees
d.The 1945 Constitution of the Republic of Indonesia
e. Law No. 39 of 1999 on Human Rights
2. Secondary legal sources
The secondary legal source is a legal material that explain the
materials that have been described in the primary legal materials
namely:
a. Books;
1) Romsan, Achmad. 2003. Pengantar Hukum Pengungsi
Internasional: Hukum Internasional dan Prinsip-Prinsip
Perlindungan Internasional (UNHCR), Bandung, Sanic Offset;
2) Wagiman, 2012, Hukum Pengungsi Internasional, Sinar
Grafika, Jakarta.
b. Scientific journals;
1) Gunawan, Yordan & Priambodo, Gatot, Burma’s Rohingya
Case in International Law Perspective, Media Hukum, Vol. 20
No. 1, 2013, Yogyakarta: Fakultas Hukum Universitas
Muhammadiyah Yogyakarta.
c. Seminar papers related to the issue;
d. Other related documents;
e. Trusted internet sites.
3. Tertiary legal sources
Tertiary legal sources are legal materials to support or provide
explanations and instructions regarding the primary legal materials and a
secondary data that serves to expand and enrich the knowledge of author to
understand the problems of refugee and also useful to support this
undergraduate thesis.
a. Law dictionary, like Black’s Law Dictionary written by Bryan A.
Garner; and
b. English dictionary, like Oxford Learner’s Pocket Dictionary;
c. Indonesian Dictionary, like Kamus Bahasa Indonesia written by
Yuyus Badudu
C. Method of Collecting Data
In this research the author used the method of collecting data in this
by literature learning. This research conducted in library as the main source.
The author finds data or research information through reading scientific
journals, reference books and materials available in the library of
publications. By using data that require a deep analysis of literature studies,
D. Method of Data Analysis
The data were analyzed systematically through juridical qualitative.
Systematically means that the data was analyzed based on international law
and Indonesian law, especially relating to the issue human rights, but focus
on the protection of Rohingya Refugees in Indonesia, according to the
International Refugee Law. Juridical qualitative means that it would be
connected with the principle of law, convention and other
related-regulations.6
CHAPTER IV
FINDING AND ANALYSIS
A. Overview of the History of Rohingya Ethnic
Myanmar is the largest state in mainland Southeast Asia with about 45
million people, and borders several important Asian states including China,
India, Thailand, Bangladesh and Laos. It used to be one of the richest
countries in Southeast Asia in term of its natural resources, now it is one of
the poorest in terms of economic and social development. Regime after
regime has laid waste to these resources or else exploited them for their own
gain, usually at the expense of different ethnic groups.1
Rohingyas is an ethnic minority living in Arakan, which is now called
Rakhine province in western Myanmar, bordering Bangladesh. Myanmar is a
country with a lot of ethnics, but there are 8 huge ethnics such as Kachin,
Kayah, Kayin (Karen), Chin, Burma, Mon, Rakhine and Shan, the rest are
ethnics of minorities. The Rohingya are Muslims who reside in the northern
parts of the Rakhine (historically known as Arakan) State, a geographically
isolated area in western Burma, bordering Bangladesh. The British annexed
the region after an 1824-26 conflict and encouraged migration from India.
Since independence in 1948, successive Burmese governments have
considered these migration flows as illegal. Claiming that the Rohingya are in
fact Bengalis, they have refused to recognize them as citizens. Shortly after
General Ne Win and his Burma Socialist Programme Party (BSPP) seized
power in 1962, the military government began to dissolve Rohingya social
and political organizations. The 1974 Emergency Immigration Act stripped
Burmese nationality from the Rohingya. In 1977, Operation Nagamin
(Dragon King) constituted a national effort to register citizens and screen out
foreigners prior to a national census.2
For centuries, the Rohingya Muslims coexisted relatively peacefully
with the Rakhine Buddhists. However, this changed around the Second World
War, when communal riots erupted between the two ethnic groups at the
instigation of third parties, most notably the British Raj. The bitterness was
fuelled by the pogrom of March 28, 1942 in which approximately 100,000
Rohingyas were massacred and another 80,000 had to flee from their ancestral
homes. Two hundred and ninety four Rohingya villages were totally
destroyed. Since then the relationship between the two communities
deteriorated to the extent that for the Rohingya there remained hardly any
option open other than self-determination in an autonomous territory that
would protect their basic human rights. After Burma’s independence in 1948,
Muslims carried out an unsuccessful armed rebellion demanding an
autonomous state within the Union of Burma. This resulted in a backlash
2 Anonymous, The International Observatory on Statelessness, taken from
