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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