The Implementation of Non-Refoulement Principle to the Asylum Seekers and Refugees in Indonesia

Abstract

The expulsion of refugees, either by the state party or by the non-state party to the 1951 Refugee Convention or countries has protracted the refugees’ suffering. Some countries which are the parties to the 1951 Convention even drive out the refugees to outside their national territory for reasons that the refugees were threatening national security or disturbing public order in the country. In the discussion, it is found that firstly, the principle of non-refoulement is a jus cogen and has become customary international law. The non-refoulement principle has legal binding power to both the State party and the non-State party to the 1951 Refugee Convention. Secondly, according to Article 32 paragraph 1 of the 1951 Convention, the implementation of the principle of non-refouelement is not absolute. Exceptions can only be made if the refugees concerned become a threat to national security and disturb public. Thirdly, Indonesia has not yet the State Party to the Refugee Convention of 1951 but Indonesia is subject to the principle of non-refouelement. This is because (i) Indonesia has ratified the Convention against Torture, the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War and the ICCPR/International Covenant on Civil and Political Rights (set on the principle of non-refoulement), (ii) the obligation of the state to rule of customary international law (based on the moral and ethical aspects of the enforcement of international law), and (iii) there is legal instrument issued by the government related to the principle of the principle of non-refouelement; Fourth, there is no written sanctions imposed on Indonesia if violations of international law are with regard to the refugee problems.

In Search of Durable Solutions for Refugees in Indonesia: A State Security and Human Rights Protection Approach

“…Despite not being a state signatory to the 1951 Convention, the Indonesian government adopted a different stance and instead used the principle of non-refoulement (Syahrin, 2017). For several reasons, Indonesia adheres to the non-refoulement policy.…”

“…(a) By seeking placement in third countries or assisting the process of a voluntary return to the country of origin, seek long-term solutions for the future of refugees by providing guarantees for those who are identified as refugees who are protected from refoulment or forced repatriation to their countries of origin where their lives and freedoms are threatened and abused; (b) In the process of waiting for a final decision on the realization of a longterm solution, UNHCR guarantees refugees and asylum seekers by facilitating all their basic needs, as well as education services, language courses, counseling services, health services, and others; (c) In addition to performing its duties in Indonesia, UNHCR continues to work on refugee rights by offering input, including a step-by-step procedure, supporting the government in developing mechanisms to effectively address issues with refugee protection and mixed migration in the context of accession to the 1951 Convention and the 1967 Protocol, where up to this point Indonesia has not ratified the two legal instruments regarding the determination of whether or not to grant asylum; (d) UNHCR cooperates with the Indonesian government in handling refugees, by socializing the government's handling guidelines when finding refugees and asylum seekers at the border, before finally being handed over to UNHCR in the form of training for immigration officers and the National Police; (e) In addition to the efforts made by UNHCR to handle refugees and asylum seekers in Indonesia, there are other factors that hinder the handling mechanism, such as the fact that Indonesia did not participate in ratifying the 1951 Convention and the 1967 Protocol and that there is insufficient national legal framework to carry it out at an operational level, such as the absence of specific immigration administration procedures and provisions regarding temporary stay permits. As a result, there exist disparities between how UNHCR personnel and Indonesian government authorities handle and manage refugees and asylum seekers (Syahrin, 2017).…”

“…UNHCR determines status, which is a lengthy process. As a result, there were signs of human rights breaches throughout the waiting period, such as abusive behaviour, including physical assault, the imprisonment of asylum seekers for an extended period of time without justification, and harsh interrogation techniques (Syahrin, 2017). Governments may also fail to offer asylum seekers and refugees proper protection, leaving them vulnerable to racial and xenophobic violence.…”

Kerjasama Internasional Indonesia dalam Hal Penanganan Pengungsi Yang Berada di Wilayah Indonesia Menurut Perspektif Hukum Yang Berlaku di Indonesia

“…Hal ini sebenarnya berlaku hanya bagi negaranegara yang meratifikasi Konvensi Jenewa 1951 dan Protokol 1967. Namun demikian, hal ini tetap berlaku bagi Indonesia mengingat Indonesia sudah meratifikasi Convention against Torture, the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War dan International Covenant on Civil and Political Rights yang mana di dalam konvensi tersebut mengenal istilah asas Non-Refoulement, sehingga dalam penanganan pengungsi tetap berlaku hal yang sama dengan apa yang diamanatkan bagi negara peserta Konvensi Jenewa 1951 dan Protokol 1967 (Syahrin, 2017).…”

Law Enforcement of Foreign Workers Abusing Immigration Residence Permit: Case Studies on Energy and Mining Companies

“…From the example of the negative effects of the above, it can be classified as organized crime or action is often called the Transnational Organized Crimes [5]. That crimes not only threatens the sovereignty of Indonesia itself, but also threatening and disturbing peace and sovereignty throughout the all state in the world [6].…”