Friday, 27 April 2012

GUEST POST: Statelessness Prevention in Indonesia - Strengthening the Nationality Legislation

Statelessness remains a global problem which is in need of a global solution. One way in which countries can contribute to this challenge is by developing their nationality legislation in such a way that it contains safeguards against statelessness. In this respect, Indonesia is an interesting example, as in 2006 new legislation on nationality was passed, which includes certain of such safeguards. As explained in the law itself, the previous legislation needed replacement, since it “was philosophically, juridically, and sociologically no longer compatible to the development of the people and the civic administration of the Republic of Indonesia”. The question which immediately comes to mind is whether Indonesia’s nationality legislation is completely attuned to the current demands in regards to statelessness prevention or that it is in need of further amendment. Therefore, it is insightful to consider the main positive and negative aspects of Indonesian nationality legislation in regards to the prevention of statelessness.

The main positive aspects of Indonesian nationality legislation can primarily be found in the inclusion of three principles, namely, ius sanguinis, ius soli, and non-discrimination. When considering the first two principles, it must be understood that persons born from Indonesian parents and those born on Indonesian territory are considered to be Indonesian citizens. However, it must be understood that the principle of ius soli does not apply in all cases; it applies to foundlings, children born from parents with undetermined citizenship, children born from parents with undetermined whereabouts and children from stateless parents. Nevertheless, by recognising both principles instead of one, Indonesian legislation prevents the previously mentioned groups from ending up without having a nationality and thus provides a safeguard against statelessness in these cases – although some gaps remain. Furthermore, the legislation acts against discrimination. Remarkable is however, that the legislation does not include specific provisions which state that discrimination must be excluded from the processes of acquiring, changing, renouncing, or passing on nationality. Rather, the general explanatory part of the legislation acknowledges the principle of non-discrimination and one can find provisions which result in persons not being discriminated against on for instance the basis of gender. Such provisions include for example the right of women to pass their nationality on to their children. As a result, statelessness caused by gender discrimination is prevented. Important to consider is that Indonesia hereby acts in accordance with its international obligations under the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). But perhaps even more significant is that Indonesia hereby acts in accordance with international norms which are not ratified, such as the 1961 Convention on the Reduction of Statelessness (“CRS”) and Article 7 of the 1989 Convention on the Rights of the Child (“CRC”). In this respect, Indonesia may be understood to go beyond its international obligations and its legislation may appear to be in line with the international standards regarding statelessness prevention.

However, Indonesia’s nationality legislation has negative aspects as well. Especially the fact that Indonesia has not yet ratified the CRS must be understood as a negative aspect; it suggests that the country does not intend to act in accordance with all the Convention’s provisions, and this raises serious questions about Indonesia’s willingness to prevent statelessness. When taking a closer look at the legislation, one indeed finds aspects which are not in line with this Convention and Indonesia’s other international obligations, such as the 2006 Convention on the Rights of Persons with Disabilities, the ICCPR, and the CRC. Especially, but not exclusively, in respect to the naturalization procedure amendments are wished for; the current legal requirements for naturalization might make it problematic for some persons who are already stateless to acquire a nationality, thereby prolonging cases of statelessness. The requirements for naturalization for instance result in discrimination on the basis of religion due to the fact that one must recognise Pancasila, the belief in One God, and in discrimination of persons with disabilities, as applicants must be “sound in health and mind”. Moreover, the procedure requires persons to relinquish any other nationality, as Indonesia does not recognize double nationality. This requirement must be understood to have the possibility to exclude stateless persons and refugees from gaining Indonesian nationality, as they are often unable to provide proof of renunciation of nationality or to give up their nationality.
Thus, while Indonesia’s current nationality legislation can definitely be understood to be a step in the right direction, since it contains certain safeguards against statelessness, it is evident that the legislation is in need of amendment in order to better align the nationality laws with Indonesia’s international obligations and the current expectations regarding the prevention of statelessness. And perhaps the first next step should be one of the biggest ones a nation can take: acceding to the 1961 CRS. 

Sylvia Hazenbroek, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

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