Connecting the Obligation Gap: Indonesia’s Non-Refoulement Responsibility Beyond the 1951 Refugee Convention

2021 ◽  
pp. 1-15
Author(s):  
Dio Herdiawan Tobing
Keyword(s):  
International Law ◽  
Political Rights ◽  
Refugee Convention ◽  
International Convention ◽  
Customary International Law ◽  
Rights Of The Child ◽  
Human Rights Treaties ◽  
Convention Against Torture ◽  
International Obligations ◽  
Missed Opportunity

Abstract This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.

scholarly journals PERLINDUNGAN HAK ASASI MANUSIA BAGI PENGUNGSI DI NEGARA NON-ANGGOTA KONVENSI STATUS PENGUNGSI 1951 [Human Rights Protection for Refugees in Non-Member Countries of the 1951 Refugee Status Convention]

Law Review ◽  
2020 ◽  
Vol 20 (2) ◽  
pp. 169
Author(s):  
Fransiska Ayulistya Susanto
Keyword(s):  
Human Rights ◽  
International Law ◽  
Political Rights ◽  
Refugee Status ◽  
International Convention ◽  
Customary International Law ◽  
Human Rights Protection ◽  
Cultural Rights ◽  
Territorial State ◽  
Rights Of The Child

<p><em>Refugee problems become global problems not only for destination country but also for the transit or non-parties country on Status of Refugees Convention 1951. The problem arises when the transit or non-parties country ignore the existence of the refugees in their territory consequently, many refugees could only depend on their protection under UNHCR help. Even if, the territorial state is not the party of 1951 convention, however, they still have responsibility under another Human Rights Convention to give protection to the refugees. Therefore, how far the refugees shall be protected under the transit territory? This article will have analyzed minimum protection under Human Rights instruments and Customary International Law that could give to the refugees. Under the International Covenant on Civil and political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on The Rights of the Child and Customary International Law, the state territory shall give protection without any discrimination to the refugees, even if they are not the party of 1951 convention. Even though, the protection that refugees get from transit state slightly different than protection from state parties, however, they shall get to be protected.</em></p><p><strong>Bahasa Indonesia Abstrak: </strong>Masalah pengungsi sudah menjadi permasalahan global yang tidak hanya berpengaruh terhadap negara tujuan saja, namun juga pada negara transit atau negara yang bukan merupakan negara anggota Konvensi Status Pengungsi 1951. Masalah timbul saat negara-negara transit atau negara non-anggota mengabaikan keberadaan pengungsi di teritori negara mereka, sehingga banyak pengungsi yang hanya menyandarkan nasibnya di tangan bantuan UNHCR. Meskipun negara teritorial bukan merupakan negara anggota Konvensi Status Pengungsi 1951, namun mereka seharusnya tetap memberikan perlindungan kepada pengungsi. Pertanyaannya, seberapa jauh negara harus memberikan perlindungan kepada pengungsi? Artikel ini akan menganalisis perlindungan minimal di bawah Hak Asasi Manusia yang harus diberikan negara non-anggota kepada pengungsi yang ada di wilayahnya. Menurut Konvenan tentang Hak-Hak Sipil dan Politik, Konvenan Hak-Hak Ekonomi, Sosial dan Budaya, serta Konvensi Perlindungan Anak dan juga hukum kebiasaan internasional, negara teritorial haruslah memberikan perlindungan tanpa diskriminasi kepada pengungsi, meskipun negara teritorial tidak menjadi para pihak dari Konvensi Status Pengungsi 1951. Meskipun perlindungan yang diberikan kepada pengungsi oleh negara transit sedikit berbeda jika dibandingkan perlindungan dari negara anggota konvensi, mereka tetap harus mendapatkan perlindungan.</p>

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

2017 ◽  
Vol 1 (2) ◽  
pp. 168
Author(s):  
M. Alvi Syahrin
Keyword(s):  
National Security ◽  
International Law ◽  
Geneva Convention ◽  
The State ◽  
Political Rights ◽  
State Party ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
The Government

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.

scholarly journals The Transfer of Asylum Seekers in Australia to Third Countries: A Case Study of Sovereignty versus International Law

2013 ◽  
pp. 187-196
Author(s):  
Hugh S. Tuckfield
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Refugee Convention ◽  
Refugee Law ◽  
Human Rights Treaties ◽  
International Obligations ◽  
The Cost ◽  
International Conventions

Asylum is an issue equally central to refugee law and human rights. Generally, they are protected under the 1951 Refugee Convention, but asylum cases are largely state regulated affair, subject to state legislations, policies and guidelines, which certainly do not preclude the applicability of international obligations directing the conduct of state towards the asylum seekers, which emanate from the recognized international human rights principles such as right to seek asylum and right against refoulement and right not to be arbitrarily detained. Contracting parties to international conventions such as the 1951 Refugee Convention, ICCPR, ISESCR, CAT, CRC, CEDAW and CERD among others acquire the responsibility to respect, protect and fulfill the obligations adducible in treatment of asylum seekers. In this regard, Australia was one of the earliest state parties to the 1951 Refugee Convention and is also a party to the relevant human rights treaties. However, it is determined to adhere to its conventional understanding of sovereignty and nationalism, at the cost of comprising the minimum protection of the rights of those who seek asylum in it.

Armed Groups and Treaty Law

2017 ◽  
Author(s):  
Katharine Fortin
Keyword(s):  
Human Rights ◽  
African Union ◽  
Political Rights ◽  
Armed Groups ◽  
Internally Displaced ◽  
Cultural Rights ◽  
Optional Protocol ◽  
Rights Of The Child ◽  
Human Rights Treaties ◽  
Convention Against Torture

Chapter 8 employs the theories identified in Chapter 7 to consider whether it is possible to argue that armed groups are bound by the major human rights treaties. The chapter conducts detailed analysis of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It also examines the main human rights treaties which it argues hold most textual potential to bind armed groups, namely the Convention against Torture, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.

scholarly journals The Principle of non- Refoulement and its Role in the Protection of Refugees

2019 ◽  
Vol IV (II) ◽  
pp. 478-487
Author(s):  
Muhammad Zubair ◽  
Muhammad Aqeel Khan ◽  
Muzamil Shah
Keyword(s):  
At Risk ◽  
International Law ◽  
International Level ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
Domestic Law

The protection available to refugees under the principle of non-refoulement is a well-established rule of the customary international law; which means that they can’t be shiftedagainst their well to their country where their life is at risk. A person who avails the protection of the principle of non-refoulement and other protections guaranteed under the international refugee instruments is considered a refugee. This principle is well established both under the Refugee Convention 1951 and Convention against Torture (CAT) 1984. This research revolves around the question that if a country is not a signatory to any refugee related instrument at international level nor has any domestic law related to refugees, sothen what precludes such a nation from expelling a person or group of persons from their territory? The paper explores the various protections available to refugees in general and under the principle of non-refoulement in particular.

scholarly journals Non-refoulement and national security: A comparative study of UK, Canada and New Zealand

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
Comparative Study ◽  
National Security ◽  
Political Rights ◽  
Refugee Convention ◽  
International Obligation ◽  
The Status ◽  
Convention Against Torture ◽  
International Obligations ◽  
The Right ◽  
International Instruments

<p>“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹ There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴ Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it? This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.</p>

scholarly journals Non-refoulement and national security: A comparative study of UK, Canada and New Zealand

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
Comparative Study ◽  
National Security ◽  
Political Rights ◽  
Refugee Convention ◽  
International Obligation ◽  
The Status ◽  
Convention Against Torture ◽  
International Obligations ◽  
The Right ◽  
International Instruments

<p>“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹ There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴ Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it? This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.</p>

scholarly journals The Principle of non- Refoulement and its Role in the Protection of Refugees

2019 ◽  
Vol IV (III) ◽  
pp. 456-465
Author(s):  
Muhammad Zubair ◽  
Muhammad Aqeel Khan ◽  
Muzamil Shah
Keyword(s):  
At Risk ◽  
International Law ◽  
International Level ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
Domestic Law

The protection available to refugees under the principle of non-refoulement is a well-established rule of the customary international law; which means that they can’t be shiftedagainst their well to their country where their life is at risk. A person who avails the protection of the principle of non-refoulement and other protections guaranteed under the international refugee instruments is considered a refugee. This principle is well established both under the Refugee Convention 1951 and Convention against Torture (CAT) 1984. This research revolves around the question that if a country is not a signatory to any refugee related instrument at international level nor has any domestic law related to refugees, sothen what precludes such a nation from expelling a person or group of persons from their territory? The paper explores the various protections available to refugees in general and under the principle of non-refoulement in particular.

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

Part VI Refugee Rights and Realities, Ch.50 Non-refoulement

2021 ◽  
Author(s):  
Mathew Penelope
Keyword(s):  
International Law ◽  
Asylum Seeker ◽  
Deep Structure ◽  
Forced Migration ◽  
The State ◽  
State System ◽  
Refugee Convention ◽  
Customary International Law ◽  
Legal Fictions ◽  
The Way

This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement. The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement. The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement—that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.

Sign in / Sign up

Export Citation Format

Share Document