Juridical argumentation in limiting the non-refoulement principle for refugees: A study of immigration policy and Indonesian state sovereignty

Abstract

Indonesia has experienced problems with refugees in recent years. Despite not being a state party to the 1951 Refugee Convention, Indonesia is still subject to the principle of non-refoulement as a norm that binds all states (jus cogens). This principle is regulated in Presidential Regulation Number 125 of 2016 and Regulation of the Director General of Immigration of 2016 as basic regulations for handling refugees. However, the principle of non-refoulement is not applied absolutely to refugees in Indonesia. The government is in a difficult situation and seems hesitant in taking a legal political stance, to accept or expel the presence of refugees. This research article aims to evaluate the application of the principle of non-refoulement in Indonesian national law. The findings of this research show that the state cannot apply the principle of non-refoulement to refugees in an absolute manner as it will have an impact on national security stability. The legal position of the Presidential Regulation and the Regulation of the Director General of Immigration contradict other regulations, potentially leading to norm conflicts and legal uncertainty. This regulation cannot be applied in all situations. Although this regulation is binding, its application is highly dependent on the needs and urgency of the country. The principle of non-refoulement does not apply to refugees if their presence threatens national security or disturbs public order in transit countries, especially for Indonesia, which has not ratified the 1951 Refugee Convention. Normatively, the application of this principle can be limited by the Constitution, Immigration Law, the theory of state sovereignty, the theory of primordial monism of national law, the principle of selective immigration policy, the principle of immigration essence, and the principle of immigration traffic control. This provision emphasizes that the application of this principle is relative and can be limited based on state sovereignty and national security interests.

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