Challenge and Opportunity to Implement the Right to Education for Child Refugees in Indonesia

Abstract

The right to education is one of all humankind's fundamental rights, regardless of their status. Thus, the right to education should also be available to refugees. The right of education for refugees is protected under the 1951 Refugee Convention, where party states should provide elementary education. Hence, it is an obligation to the state parties to ensure the rights of education for refugees in their jurisdiction area. As a state that has not ratified the Refugee Protocol, Indonesia has been a host for the 'refugee transit' before these refugees will be placed in their settlement countries. The type of this research is qualitative research with a legal-normative approach and descriptive-comparative nature. This type of research creates a description of empirical facts with normative analysis and comparing the existing refugees' right to education as variables by comparing Indonesia's practice with Thailand and Malaysia as the primary cases collected through literature review. Comparisons between a legal provision with other legal provisions, or a fact with other facts, with grammatical, systematic, and comparative interpretations would be identified and analyzed the legal implication for implementing the right to education. The result highlights three implication rights: there are no national laws in Indonesia that specifically regulate refugees' right to education. First, there are no national laws in Indonesia that specifically regulate the right of refugees to education. The absence of national laws in Indonesia created gaps between each country's national laws with various international legal instruments that regulate the right to education as one of the special rights of refugees and a part of human rights. Second, even in the absence of a legal framework, manifesting the right of education to the refugees' children is not impossible and can be achieved by empowering the Non-Government Organization (NGO) or even Community Based Organization (CBO) to provide alternative means of education. Third, since Indonesia has not ratified the 1951 Refugee Convention, it becomes the main barrier for Indonesia to fulfill refugee rights. Thus, we conclude by revising the existing legal framework by placing refugees as entities outside immigrants while adding content regarding fundamental rights. In this case, the right to education is one of the fundamental rights that should be guaranteed by the government.