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

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.


INTRODUCTION
The problem of refugees is now a common concern of the international community. The forerunner and the focus of concern are felt especially after the Second world war. Thousands of people were displaced, particularly those who were from countries that were defeated in the Second World War. Some of the refugees enter the destination country without travel documents, such as passport 1 .
The adoption of the Refugee Convention on, July 28, 1951 (hereinafter referred to as the 1951 Convention) and its Protocol of January 31, 1967 (hereinafter referred to as the 1967 Protocol) are concern of the countries in the world to overcome the refugee problems. The setting of refugees was also included in the discussion of international law.
International refugee law is a part of international law and was made to ensure the security and safety of international refugees displaced in the destination country. In addition to providing protection in the country of destination, international refugees are also protected by the countries through which they transit on the way to the destination country. Thus, discussing international refugee law would be optimal if judging from the perspective of international law which positioning as a legal umbrella. International law itself has a long history even as old as the national law of nations. It grew and developed from the contributions of national laws. 2 The displacement of people is a form of population transfer which has different characteristics from other forms of population movement. Such traits that distinguish refugees with other migrant 1 Annalisa Yahanan, Febrian, and Rohani Abdul .DULP ³7KH 3URWHFWLRQ RI &RQVXPHU 5LJKWV IRU Aviation Safety and Security in Indonesia and 0DOD\VLD´ Sriwijaya Law Review, Vol. 1 Issue 1, January (2017), p37. 2 http://muhammadalvisyahrin.blogspot.com /2014/10/posisi-dan-perkembangan-hukum pengungsi.html., retrieved on June 26, 2015. categories and the effect on the protective mechanism are applied to them. 3 The movement of the populations in the territorial area of the country and that has been crossing national boundaries is an event that has long existed in human history and become more common today. 4 From the perspective of the recipient country, refugee flows in addition to a humanitarian problem also have an impact on the security, economic and socio-political balance in the country where they had fled. 5 In some studies, pollution and environmental degradation were blamed to be the cause of conflict, 6 internal problems in the country and reduction of international aid for the refugees resulted in more and more countries close borders of refugees in large numbers 7 .
The expulsion of refugees, either by countries that have become party to the 1951 Convention or countries which have not become parties to the Convention, has increased the suffering of refugees to become more protracted. Some countries [ 170 ] Sriwijaya Law Review " Vol. 1 Issue 2, July (2017) which are parties to the 1951 Convention even expel the refugees on the grounds that the refugees are threatening national security or disturbing public order in the country.
Expulsion of refugees conducted by a state party to the 1951 Convention contrary to the provisions of Article 33 of the 1951 Convention on the prohibition of expulsion. Prohibition of expulsion is popularly known by the term the principle of non-refoulement is a landmark in international law. The Article above stipulates that countries party to the present Convention shall not expel or return a refugee in any manner, to the borders of the state party that will threaten the lives and freedom of refugees for reasons of race, religion, nationality, membership of a particular social group or because of political opinion. 8 Article 33 contains the principle of nonrefoulement included in the chapters that cannot be reserved and the principles are also binding on those countries not party to the 1951 Convention. 9 Although Indonesia is not a party to the 1951 Convention, in practice Indonesia has consistently applied this principle when faced with an exodus of Vietnamese refugees. 10 The government has yet to introduce legislation to ratify the Convention Relating to the Status of Refugees. But on behalf of human rights, Parliament fully supports the Government's plan to ratify the 1951 Conven-tion. 11 It should be the process of ratification of the Convention and United Nations Commissioner for Refugees (UNHCR) appreciates Indonesia's commitment to uphold human rights 12 Even though, geographically Indonesia is strategic but Indonesia, from the refugees themselves is not a final destination for the refugees.
Waiver of the minimum rights of refugees and people displaced within the country is another dimension of the relationship between the two issues. During the process of asylum seekers, the number of people who are facing restrictive measures causing them to have access to a safe area is growing. In some instances, asylum-seekers and refugees are detained or forcibly returned to areas where their lives, liberty and security are threatened. Some of them were attacked by armed groups, or recruited into armed forces and forced to fight for one side or the other in civil conflicts. Asylum seekers and refugees are also victims of racist aggression. The refugees have rights that must be respected before, during and after the asylum process. Respect for human rights is a necessary condition for both preventing and resolving today's refugee flows. Therefore, the refugee problems have become an international issue that must be addressed. International community commit to oppose all forms of human rights violations, war crimes, crimes against humanity, genocide, or other [ 171 ] crimes, which makes the embryo of the birth of refugees. 13 Throughout human history any hemisphere always forced to flee from his birthplace find shelter from persecution, violence, and armed conflict, but it was only in the early 20th century, some countries realize that to protect refugees, global cooperation is needed. 14 Each state has a general duty to provide international protection as a liability which is based on international law, including international human rights law and international customary law. So countries which become participants / signatories to the 1951 Convention relating to the status of refugees and / or its 1967 Protocol have obligations as stated in the legal instruments set out in the 1951 Convention (on the legal framework for the protection of refugees and asylum seekers).
Nevertheless, in reality, many countries when dealing with refugees do not conform to international standards as set out in the 1951 Convention and the 1967 Protocol, such the conformity to the non-refoulement principle. Thailand, is one of the example where Article 33 of the 1951 Convention had been inflicted as in the case of the Rohingya Refugees. Myanmar should have been able to follow the practice of Canada or Australia which 13  However, Indonesia has compliance to help many refugees who stop over in its territory and handle the refugees based on the appropriate handling as it is stipulated in the Convention, 1951, such as Article 3 concerning non-discrimination against refugees from any country, the reunion (Article 20), place of residence (Article 21), education (Article 22), help the public (Article 23), and prohibitions the expulsion of nonrefoulement (Article 33). The respect of UHIXJHHV ¶ ULJKWV has been done by Indonesia from 1975 onwards and also parallel with the 1945 Constitution which states that every person has the right to freedom from torture or degrading treatment of human dignity and the right to obtain political asylum from another country. 16 When the civil war between South Vietnam and North Vietnam (Vietcong) took place, there were approximately 250 thousand refugees landed on the Galang 15 Hendra Nurtjahjo, 2005, Ilmu Negara Pengembangan Teori Bernegara dan Suplemen, Jakarta: Rajawali Pers, p58. 16 Fandi Ahmad dan Tim Setia Kawan, 2004, UUD 1945Amandemen Pertama±Keempat (1999-2002, Jakarta: Setia Kawan, p23. [ 172 ] Sriwijaya Law Review " Vol. 1 Issue 2, July (2017) Island, in the Riau Islands, Indonesia. On humanitarian grounds, the Indonesian government decided to cooperate with the UNHCR to make a shelter for Vietnam refugees funded by UNHCR. For eighteen years the refugees are residing in Indonesia until 1996 UNHCR decided to repatriate the refugees to their country of origin due to insufficient funds to finance the shelter, so it was disbanded and closed.
The incident did not end up there, after the return of the refugees from Vietnam, Indonesia today has become a transit country for migrants, asylum seekers and refugees to the country of destination Australia. Until June 30, 2014, there were 10.116 refugees and asylum seekers registered by UNHCR in Indonesia, where 6286 people are asylum seekers and 3,830 people are refugees. Of these, there were 7910 males and 2206 females. Among the refugees and asylum seekers registered, there were 2,507 children in which 798 of them are separated children. Afghanistan, Myanmar, Sri Lanka, Pakistan, Iran, and Iraq are the main countries of origin of refugees and asylum seekers who are in Indonesia. 17 The immigrants, asylum seekers and refugees came from Algeria, Afghanistan, Iran, China, Sri Lanka and Rohingya coming from Myanmar and Bangladesh.
Based on the discussion above, there are interesting things to be studied in this paper, namely: First, why do the non-State Party to the 1951 Convention also respect the principle of nonrefoulement? Second, is the application of the principle of non-refoulement absolute? Third, what is the urgency for Indonesia to implement the principle of non-refoulement? Fourth, are there any sanctions that may be imposed to Indonesia if it expel the refugees who come into the region?

The Principle of Non-Refoulement
The principle of nonrefouelement reflects on the minimum protection based on humanitarian grounds listed in social and humanitarian aspects of the problem of refugees.
Third, the prohibition of expulsion contains a special thing. This is supported by Article 42 paragraph (1) of the 1951 Convention which excludes Article 33 of the act of reservation. Thus, the prohibition of expulsion under Article 33 of the 1951 Convention is a non-derogable obligation that become the humanity foundation for the 1951 Convention. This obligation is reaffirmed by Article VII paragraph (1) Protocol 1967. UNHCR's Executive Committee even further established that the principle of non-refoulement is a peremptory norm has been regarded as customary international law. Meaning the entire states either has become a Contracting State or not, prohibits the expulsion, obliged not to return or extradite a person to a country where life or safety of that person truly is in danger. 19 Peremptory norm or jus cogens is a basic principle of international law accepted by states as a norm that cannot be ignored. As a peremptory norm or jus cogens, the principle of non-refoulement must be respected in all circumstances and cannot be altered. This is a fundamental principle for the benefit of everyone, regardless of whether the country is already a party to the 1951 Convention or not and regardless of whether or not WKH SHUVRQ ¶V VWDWXV LV already granted as a refugee. According to Article 33, paragraph 2 of the 1951 Convention, the prohibition for refugees returned back by force to a country where he might be suffering persecution does not apply to refugees who threaten the security of the country, or he has got the final verdict from the judges for serious crimes he had committed, as well as endangering the public local state. However, this provision only applies to a very urgent exceptions. That means, if the exceptions would apply, then it must be proven that there is a direct relationship between the presences of refugees in a country with the country's national security threatened. 20

Exceptions in Application of the
Expulsion of refugees will only be done as the implementation of a decision reached in accordance with due process of law. Except when reasons of national security require coercive other refugees to be allowed to submit evidence to clear themselves, and appealed to the relevant authorities 21 . Exceptions of adoption of non-refoulement principle requires the element of threat to national security and disruption of public order in the country concerned. For Indonesia, the security is not only in the context of the internal [ 174 ] Sriwijaya Law Review " Vol. 1 Issue 2, July (2017) security of a country, but also in the system of food safety, health, finance and trade. 22 Threats include obstacles, challenges and distractions. In a narrow sense, the threat can be planned or residual. 23 Threats can be planned as subversion and insurgency in the country and infiltration, subversion, sabotage and invasion. Residual threats are various circumstances in which society is economic insecurity, social and political, if not handled comprehensively in time, will lead to riots that can be used by elements of subversion or insurgents for their own interests. 24 It should be understood that the flow of refugees in large numbers could have impacted on the economy, changing the ethnic balance, a source of conflict, which can even lead to political unrest local and national level in a country. Walter Lippmann as quoted by Kusnanto Anggoro stating that a country is safe as long as the people cannot be forced to sacrifice values that are important and if it can avoid a war or if forced to fight, can come out a winner. 25 Public order is a state in which the government and people can operate in an orderly and organized. Given the 22 Ann Tickner, 1994, Re- Furthermore, from the perspective of immigration laws, restrictions must be understood within the concept of the principle of non-refoulement which is the politics of immigration laws that were adopted by Indonesia today. It is a selective policy based on the principle of expediency. That is, only foreigners who bring benefits to the country to enter and stay in Indonesia. The stranger must have travel documents and visas which are legitimate and valid, so that not all asylum seekers or refugees even get an absolute guarantee to stay in Indonesia under the guise of the principle of nonrefoulement. So this selective policy was [ 175 ] the one who indirectly become a filter for the application of the principle of nonrefoulement in Indonesia.

Application of The Principle of Non-Refoulement in Indonesia
Non-refoulement is not the same as the deportation or forcible transfer. Deportation or expulsion occurs when foreign nationals found guilty of acts contrary to the interests of the country concerned or she suspects a crime in one country and flee from the judicial process. 26 The principle of non-refoulement is not only found in the 1951 Convention, but is implied to be found in Article 3 of the declare themselves as asylum seekers or refugees.
The Director General's letter also confirmed, if there is a stranger that claimed to seek asylum upon arrival in Indonesia, he is not subjected to immigration measures in the form of deportation to the country who threatens the life and freedom. The content of this letter is in accordance with the principle of non-refoulement.
Furthermore, the letter warned that if among strangers is believed there is an indication as asylum seekers or refugees, local officials immediately contact the UNHCR to determine their status. In case of arrival of asylum seekers being examined at Immigration Checkpoint that far from the UNHCR office, then the officer must coordinate and deal with the person in charge of transportation means while awaiting the arrival of officials from the UNHCR.
In that letter it is specified that foreigners who have obtained a Certificate of Attestation Letter, refugees and or someone that is under the protection of UNHCR, would not question the status of residence permit while in Indonesia. If the foreigners who have acquired the status of UNHCR as asylum seekers or refugees are not abiding by the law, then it was processed in accordance with the legal provisions in force in Indonesia.
The contents of the letter relating to Article 75 of Law No. 6 Year 2011 on Immigration which states immigration measures carried out against foreigners residing in Indonesia that carry out dangerous activities, or suspected will [ 176 ] Sriwijaya Law Review " Vol. 1 Issue 2, July (2017) endanger security and public order, or does not respect or obey the laws and applicable regulations.
Based on legal science, government should apply legal consideration on the implementation of the principle of nonrefoulement 27 Therefore, the legal arrangements to reject and remove foreigners should certainly consider human rights as stipulated in the 1945 Constitution and the international conventions that already ratified by the Government of Indonesia.

Sanctions
This sanctions need to be distinguished here by criminal law imposed when there is an officers who has committed serious violations of human rights, such as those in Rwanda and the former Yugoslavia. There is no written sanction imposed on Indonesia, if it violate to international law with regard to the refugee problem.

CONCLUSION
First, the principle of non-refoulement is also binding on those who are not the SDUWLHV WR WKH &RQYHQWLRQ ,W ¶V because of the principle of jus cogens and is a peremptory norm. As a peremptory norm, jus cogens and the principle of non-refoulement have become customary international law. Hence, the legal binding power encompass also the countries that are not parties to the 1951 Convention. Second, based on Article 32 paragraph 1 of the 1951 Convention, the implementation of the principle of nonrefouelement is not absolute. Exceptions can only be made if the refugees concerned are a threat to national security and disturb public.
Third, the fundamental reason for Indonesia to implement the principle of non-refoulement are (i) Indonesia has ratified the Convention against Torture, the Fourth Geneva Convention, and the International Covenant on Civil and Political Rights (set on the principle of non-refoulement), (ii) the State's obligation to the rule of customary international laws (based on 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 nonrefoulement.
Fourth, there is no written sanctions imposed on Indonesia if violations of international law are with regard to the refugee problems.