Lentera Hukum, 10:1 (2023), pp.

135-162 Available online 31 May 2023

ISSN 2355-4673 (Print) 2621-3710 (Online) https://doi.org/10.19184/ejlh.v10i1.37920

Research Article

No Choice but Welcoming Refugees: The Non-

Refoulement Principle as Customary International Law
in Indonesia

Dodik Setiawan Nur Heriyanto*

Faculty of Law, Universitas Islam Indonesia, Indonesia

Sefriani
Faculty of Law, Universitas Islam Indonesia, Indonesia

Fezer Tamas
Faculty of Law, University of Debrecen, Hungary

ABSTRACT: The non-refoulement principle requires each country to consider refugees and
asylum seekers in their country of origin if they are subject to persecution and threaten their
lives. As a geographically strategic country, Indonesia has been a significant crossroad for
international refugees and asylum seekers often consider Indonesia their temporary
destination. Moreover, the complex situation of international refugees has encouraged to
reinterpret of the principle of non-refoulement into various national measures and domestic
policies, given that Indonesia is deemed a transit country for refugees and has not ratified
the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of
refugee protection under international law, particularly the non-refoulement principle and
investigate the application of the non-refoulement principle in Indonesia. This study
employed normative and empirical legal research with statutory, conceptual, and
comparative approaches. This study confirms that the non-refoulement principle is part of
jus cogens norms in international law but does not fit in its application. Indonesia has
inconsistency in upholding the non-refoulement principle into the binding normative rules.
Refugees have received far less attention from the Indonesian government due to
insufficient infrastructure and financial allocation. Moreover, the existing executive
regulations do not provide effective enforcement since these regulations have a lower
position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951
Convention is urgently needed by Indonesia to guarantee the protection of refugees within
its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt
good practices in the European Union to set sharing quotas to ensure that not most refugees
escape to Indonesia.
KEYWORDS: Customary International Law; Indonesia; Refugees.

* Corresponding author, email: dodiksetiawan@uii.ac.id

Submitted: 02 February 2023 | Reviewed: 11 April 2023 | Revised: 29 May 2023 | Accepted: 31 May 2023
Published by the University of Jember. © The Author(s), 2023. This is an Open-Access article distributed under the terms of
the Creative Commons Attribution-ShareAlike 4.0 International license (http://creativecommons.org/licenses/by-sa/4.0).
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 136

I. INTRODUCTION
This paper explores the development of refugee protection under
international law, particularly the non-refoulement principle, by considering
the application of the non-refoulement principle in Indonesia. This study
reveals that refugees in Indonesia obtain unequal treatment.1 While in 2015,
there was an increase in the number of refugees by 13,188; among these were
7,911 asylum seekers.2 These numbers may be significant in reality,3 due to
Indonesia’s strategic location between two continents (Asia and Australia)
and two oceans (the Indies and the Pacific).4 Its strategic location provides
convenient opportunities for refugees to stop temporarily to go to other
countries such as Australia or Singapore. When these refugees know that the
Indonesian people have hospitality while they stop by, they generally stay in
Indonesia with no attention from the Indonesian government.5 From this
situation, the United States Report on Human Rights in 2021 mentioned
that most refugees and asylum seekers stay in Indonesia without certain
status.6

1
Leslie E Velez & Claire A Smearman, “Protecting the World’s Most Vulnerable”
(2008) 41 Md Bar J 32–37.
2
Tri Wahyun, “UNHCR: Jumlah Pengungsi di Indonesia Meningkat”, (2015), online:
<https://www.cnnindonesia.com/nasional/20150728204221-20-68699/unhcr-
jumlah-pengungsi-di-indonesia-meningkat/>.
3
This number will increase if we also add data on migrants in Indonesia, both legally
and illegally. See also Risky Vista Puspita Sari, Aries Harianto & Ida Bagus Oka Ana,
“Kepastian Hukum Pengaturan Penggunaan Tenaga Kerja Asing di Indonesia” (2018)
Lentera Huk 389–402; Dodik Setiawan Nur Heriyanto, “Klausula Terkait
Perlindungan terhadap Buruh Migran dan Urgensinya untuk Diatur Secara Khusus di
dalam Perjanjian Perdagangan Bebas antara ASEAN dan Uni Eropa” (2015) 22:3 J
Huk IUS QUIA IUSTUM 329–345.
4
Graeme Hugo, George Tan & Caven Jonathan Napitupulu, “Indonesia as a Transit
Country in Irregular Migration to Australia” in Marie McAuliffe & Khalid Koser, eds,
A Long W to Go Irregul Migr Patterns, Process Drivers Decis (ANU Press, 2017) 167.
5
Ganesh Cintika Putri, “The Dilemma of Hospitality: Revisiting Indonesia’s Policy on
Handling Refugees Under International Law” (2022) 13:1 J HAM 113–130.
6
Human Rights Watch, “World Report 2015: Indonesia”, (2014), online: <https://
www.hrw.org/id/world-report/2015/country-chapters/268176>; The United States
Embassy and Consulates in Indonesia, “2021 Country Reports on Human Rights
Practices: Indonesia”, (2021), online: Off Reports <https://id.usembassy.gov/our-
relationship/official-reports/2021-country-reports-on-human-rights-practices-
indonesia/>.
137 | No Choice but Welcoming Refugees

Refugees in Indonesia may cause problems, particularly concerning social

aspects at the border. They conduct illegal activities such as theft,
prostitution7 and drug dealing due to the employment prohibition by the
Indonesian government. 8 As commonly happens, there is frequent
horizontal conflict between local communities and refugees who commit
crimes because they lack social protection support, 9 as well as the
employment prohibition policy. 10 Also, there are refugee children in
immigration prisons receiving poor service and violence.11 These problems
happened due to the restriction for the refugee to work based on the
Indonesian domestic policy and the small budget allocation to provide the
minimum standard of facilities for refugees. In addition, the present laws
have been promulgated by the executive power, which does not have effective
enforcement. It lacks deterrent sanctions and legislative support to finance
and supervise existing laws. In the meantime, the uncertain legal framework
of protecting refugees in ASEAN also has created unclear treatment among
refugees living within the region. Refugees receive bad treatment and even
strict restrictions at the border, so they tend to run away and stop at
Indonesia's outer border.
Since ASEAN does not yet have a responsive legal and policy framework,
refugees lack sufficient protection to culminate in conditions of concern. In
practice, Rohingya refugees who arrived in Thailand were arrested by
smugglers and asked the refugees to pay a certain sum of money as a ransom

7
Batam News, “Imigrasi Batam Amankan 10 Orang Imigran Gelap Jadi Gigolo”,
(2016), online: <https://www.batamtimes.co/2016/09/08/imigrasi-batam-amankan-
10-orang-imigran-gelap-jadi-gigolo/>.
8
Luthvi Febryka Nola, Refugee Employment Prohibition in Indonesia (2021), Proceedings
of the 3rd International Conference on Indonesian Legal Studies, ICILS 2020, July
1st 2020, Semarang, Indonesia.
9
Raden Ajeng Rizka Fiani Prabaningtyas, “Indonesia and The International Refugee
Crisis: The Politics of Refugee Protection” (2019) 9:2 J Indones Soc Sci Humanit.
10
Nola, supra note 8; Director General of Immigration Regulation No. IM.0352.GR.02.07.
on the Handling of Illegal Immigrant Claiming to be Asylum Seekers or Refugees on April
19, 2016.
11
Human Rights Watch, supra note 6.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 138

to gain freedom from the threat of detention.12 UNHCR in 2015 estimated

that 25,000 Rohingya and Bangladesh refugees arrived in Indonesia,
Malaysia, and Thailand to seek protection.13 However, the uniformity and
inadequate provisions of refugee protection in ASEAN may result in an
adverse regional crisis and hamper the realisation of the ASEAN integration
ideals. It is important to note that more protection may be needed to operate
an efficient international protection system. In contrast, in the European
Union, where harmonised rules aim to establish a unified regime, some
member states, such as Hungary and Poland, due to the mass migration crisis
that started in 2015 in Europe, introduced policies that practically seized
international protection from many asylum seekers.14
Indonesia has a vital role in participating and encouraging the establishment
of a legal framework for protecting refugees in the ASEAN region. 15
Although not all ASEAN member states have ratified the 1951 Refugee
Convention and the 1967 Protocol, the obligation to protect refugees
remains inherent because the substance of the provisions of the Convention
has already become international customary law. 16 Therefore, refugee
protection measures and their legal framework in the ASEAN region must
be established to maintain regional security and stability.

12
Human Rights Watch, “Thailand: Allow Newly Arrived Rohingya Access to Asylum”,
(2022), online: <https://www.hrw.org/news/2022/06/07/thailand-allow-newly-
arrived-rohingya-access-asylum>.
13
Edwards Adrian, "UNHCR - UNHCR Report Shows Sharp Increase in Sea
Crossings in the Bay of Bengal", (2015), online: Brief Notes <https://www.unhcr.org/
news/briefing/2015/5/554c8adf9/unhcr-report-shows-sharp-increase-sea-crossings-
bay-bengal.html>.
14
Monthly Data Collection on the Current Migration Situation in the EU, by European
Union Agency for Fundamental Rights (FRA) (2016); Council of the European Union
“Council Decision (EU)” 14 September 2015 establishing provisional measures in the area
of international protection for the benefit of Italy and of Greece’, OJ L 239.
15
Nikolas Feith Tan, “The Status of Asylum Seekers and Refugees in Indonesia” (2016)
28:3 Int J Refug Law 365–383.
16
Sir Elihu Lauterpacht & Daniel Bethlehem, “The Scope and Content of the Principle
of Non-Refoulement: Opinion” in Erika Feller, Türk Volker & Frances Nicholson,
eds, Refug Prot Int Law UNHCR’s Glob Consult Int Prot (Cambridge University Press,
2003).
139 | No Choice but Welcoming Refugees

As a country with a strategic location for the path of refugees, international

refugee protection practices in Indonesia will be examined in this study to
provide a comparative picture of an adequate legal framework model in
delivering solutions to the problem of the minimal protection of refugees in
Indonesia and generally in the ASEAN region. Normatively, the principle
of non-refoulement has been regulated in the 1951 Convention relating to
the Status of Refugees and has been recognised as customary international
law. 17 Based on a philosophical basis, this principle is a framework of
protection to guarantee the fulfilment of human rights to the refugees to be
free from persecution based on race, religion, citizenship, and political views
in their home country.18 The right of everyone to obtain protection from
other countries has been universally recognised.19
This paper aims to analyse the concept of refugee protection under
international law, particularly the non-refoulement principle. It also seeks to
investigate the application of the non-refoulement principle in Indonesia
profoundly. Hence, two legal issues were discussed in this study. First, what
is the basic concept of refugee protection under international law? Second,
how far is the application of the non-refoulement principle in Indonesia?

II. METHODOLOGY
With legal research, this study examined the philosophical, sociological, and
juridical aspects of providing refugee protection using a comparative
approach in Indonesia and Hungary. In addition, this study used statutory
and conceptual approaches to analyse the applicability of the principle of
non-refoulement in international law. All legal materials were qualitatively
processed to ascertain the extent to which the principle of non-refoulement
is applied in the state practices. Hence, the outcome of this study is expected
to contribute to the development of the principle of non-refoulement,

17
Guy S Goodwin-Gill & Jane Mcadam, The Refugee in International Law (Clarendon
Press, 2000); Slamet Supriadi, “International Refugees Protection in the Context of
Human Rights” (2021) 7:4 Law Res Rev Q 417–432 pp. 417-420.
18
Ishita Chakrabarty, “Refoulement as a Corollary of Hate: Private Actors and
International Refugee Law” (2020) 35:3 Virginia J Int Law Online 53–74.
19
(Universal Declaration of Human Rights, 1948, article 14)
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 140

primarily related to implementing the principle in various ways to adjust the

empirical conditions without prejudice to the basic rules that have been
applied in customary international law.

III. REFUGEE PROTECTION UNDER INTERNATIONAL LAW

A. Fundamental Rights of Refugee
The values and norms of the right of refugees are closely tied to human
rights. Codification of universal human rights values into the Universal
Declaration of Human Rights inspired the concept of protecting the rights
of refugees through multilateral agreements. 20 For this reason, the basic
values of human rights associated with refugees were well adopted in the
1951 Refugee Convention and the 1967 Protocol.
According to Huijbers, human rights are the rights that are possessed and
attached to the human being acquired and brought with him in his birth or
presence in society because he has a privilege that allows him to be treated
according to his privileges. 21 Human rights internationally have been
recognised and embodied in the form of fundamental rights embedded in
dignified human beings, such as civil and political rights, freedom from
oppression, freedom from detention without going through a valid and fair
trial, the right of protection as an individual with natural rights which cannot
be contested, and taken by anyone or from any party Robertson,22 Nickel,23
and Donnelly.24
The state must guarantee and protect human rights that have become a social
construct built on humanity based on a moral conception to foster its

20
Ibid.
21
Theo Huibers, Filsafat Hukum (Yogyakarta: Kanisius, 1995).
22
Geoffrey Robertson, Kejahatan Terhadap Kemanusiaan Perjuangan untuk Mewujudkan
Keadilan Global (Jakarta: Komisi Nasional Hak Asasi Manusia Republik Indonesia,
2002).
23
James W Nickel, Hak Asasi Manusia Refleksi Filosofis atas Deklarasi Universal Hak Asasi
Manusia (Jakarta: Gramedia Pustaka Utama, 1996) at 18-21.
24
Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University
Press, 2013)2.
141 | No Choice but Welcoming Refugees

humanitarian vision. 25 The protection guarantee is then implemented

through the state constitution and the prevailing laws and regulations.26 The
regulation of human rights in the national legal system does not guarantee
good human rights because human rights violations often occur, and
universal human rights values and norms are often ignored. Thus, the World
Conference on Human Rights held in Vienna, Austria, in 1993, resumed in
1997 and 2002, resolves five essential points, such as human rights contain
universal values; the international community must maintain human rights;
considering cultural, social, and cultural pluralism in the implementation of
human rights; every state is required to guarantee human rights without
taking refuge behind relativism; and developed countries need to help
developing countries without violating human rights.27
International refugees are forced to flee their home countries to other
countries to protect human rights. Finding a region or country that provides
a sense of security to refugees must be protected based on universal human
rights norms. If their home country has changed well, refugees may return
to their home country or build their communities to enjoy human rights.28
The guarantee of human rights protection for internally displaced persons is
set out in Article 14 of the Universal Declaration of Human Rights, which
guarantees “the right to seek and enjoy in other countries asylum from
persecution.29 Referring to the guarantees of the Universal Declaration of
Human Rights, the preamble to the 1951 Convention also stipulates “the
principle that human beings shall enjoy fundamental rights and freedoms
without discrimination.”30
Some refugee human rights that must be guaranteed and protected under
international refugee law include the right to protection against refoulement,

25
I Made Subawa, “Hak Asasi Manusia Bidang Ekonomi Sosial dan Budaya Menurut
Perubahan UUD 1945” (2008) 33:1 Kertha Patrika at 3.
26
A Masyhur Effendi & Taufani Sukmana Evandri, HAM dalam Dimensi/Dinamika
Yuridis, Sosial, Politik (Bogor: Ghalia Indonesia, 2007) at 35.
27
A Masyhur Effendi, Tempat Hak-Hak Azasi Manusia dalam Hukum
Internasional/Nasional (Bandung: Alumni, 1980) p. 79.
28
UNHCR, Human Rights and Refugee Protection (Jakarta: UNHCR, 1998) at 3.
29
Universal Declaration of Human Rights, supra note 19 Art. 14.
30
Convention relating to the Status of Refugees, 1951 Preamble.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 142

the right to seek asylum, the right to equality and non-discrimination, the
right to life, liberty, and security, and the right to return. To begin with, in
the right to protection against refoulement, the purpose of refugees protected
outside their home country is to avoid human rights violations against them.
Therefore, in international refugee law, refugees are assured that every
country is forbidden to return the refugees to their home countries. This
guarantee of human rights is better known as the principle of non-
refoulement. The theoretical concepts and problems in practice related to the
principle of non-refoulement will be discussed in more detail in Chapter V
of this research.
On the other hand, about the right to seek asylum, international refugees are
guaranteed the right to seek asylum to protect their safety. They are entitled
to apply for asylum to other countries (outside their country of origin) as a
haven because of the backdrop of fear of persecution in their home country.31
This form of asylum, according to Starke32 is a territorial asylum where the
asylum country has full power in applying its country’s sovereignty as an
implication for the granting of asylum within its jurisdiction. International
refugees as asylum seekers seek refuge or a safe place outside the territorial
sovereignty of the country of origin of asylum seekers by applying for asylum
aimed at other parties or countries. Submission of requests from asylum
seekers addressed to such other party or country implies that the home
country of asylum seekers is unwilling or incapable of protecting asylum
seekers, so asylum seekers do not choose to seek refuge in their home country
and prefer to seek protection from other parties or countries. The leading
cause of asylum-seekers is that there are things and reasons for an intense
fear of persecution, so the asylum-feeding country can consider the reason
for fear of granting asylum. Hamid argues that there are reasons to be
considered in determining the granting of protection by the state to asylum
seekers as outlined in binding international law and customs, namely “the
reasons for humanity, religion, racial discrimination, and politics”.33

31
JG Starke, An Introduction to International Law (London: Butterworth, 1977) at 479.
32
Ibid p. 475.
33
Hamid Sulaiman, Lembaga Suaka dalam Hukum Internasional (Raja Grafindo Persada,
2002) at 46.
143 | No Choice but Welcoming Refugees

The rationale for the acceptance or non-acceptance of such asylum

applications is the right of a country as a sovereign entity. The granting of
asylum is the absolute authority of a state. The state-granting asylum shall
have the absolute power to evaluate or judge for itself the grounds upon
which the asylum is granted, without having to disclose or disclose the reason
to any party, including to origin country of asylum seekers34. This is also in
line with the opinion of Crock35 which states that the state will bear the joint
responsibility for the fate of the asylum-seekers as a matter of international
law (the state will assume the collective responsibility for the fate of asylum-
seekers as prescribed in international law). Moussalli also argues that when
large asylum-seekers come in, the state will at least provide temporary
protection.36
The granting of asylum status to refugees does not necessarily mean that an
asylum country interferes with another country's sovereignty (especially the
country of origin of asylum seekers/refugees internationally). However,
granting asylum can be categorised as an act that prioritises the principle of
peace and humanity. This is clearly stated in the Declaration on Territorial
Asylum that “…be declared as unfriendly by any other state.”37. The decision
to grant asylum by a country shall be respected by other countries, including
the refugee's home country asylum, as the act of granting asylum is part of
the sovereignty of the country and constitutes a manifestation of the
upholding of the objectives and principles of peace and humanity as regulated
in the UN Charter, international law and custom.
In addition, in the right to equality and non-discrimination, international
refugees have the right to equality and are free from discrimination wherever
they are. This principle is fundamental for every country to consider the
discriminatory treatment of international refugees because of
ethnic/religious, gender, and other factors. Discrimination also often occurs

34
Iman Prihandono, “Pemberian Suaka oleh Negara: Kasus Pemberian Suaka oleh
Pemerintah Australia kepada 42 WNI asal Papua” (2006) 21:1 J Huk Yuridika.
35
Mary Crock, “In the Wake of the Tampa: Conflicting Visions of International
Refugee Law in the Management of Refugee Flows” (2003) 12:1 at 49.
36
Michell Moussalli, Who is a Refugee? (Geneva: UNHCR, 1982) at 42.
37
Declaration on Territorial Asylum, 1967.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 144

because international refugees are largely denied citizenship documents

because they are forced to abandon their possessions, so border officials treat
them with excessive suspicion. This equality is a fundamental right that puts
all people free and have equal rights in human rights.38 Equity requires equal
treatment, in which the same situation must be treated equally, and by
debate, different cases are treated differently.
The principle of non-discrimination has the same concept as equal rights.
The focus of non-discrimination covers the view that people cannot be
treated differently based on additional and unauthorised criteria.
Discrimination based on race, colour, skin, ethnicity, gender, age, language,
disability, religion, politics or other opinions, societal or geographical origin,
possession, birth or other status established by international human rights
standards violates human rights. This principle of non-discrimination has
been regulated and adopted in many multilateral agreements, especially in
the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Social, Economic and Cultural Rights
(ICESCR). Article 2(1) of the ICCPR states that each State Party to the
present Covenant undertakes to respect and guarantee the rights recognised
in the present Covenant to all persons within its territory and subject to its
jurisdiction, without distinction of any kind as to race, colour, sex, language,
religion, politics or other opinions, national or social origin, property, birth
or another social status.39 While the principle of equality is guaranteed in
Article 3 of the ICCPR, which states that the States Parties to the present
Covenant undertake to ensure equal rights of men and women to enjoy all
the civil and political rights outlined in the present Covenant. 40 Every
country is prohibited from discriminating against international refugees
under any circumstances.
In the meantime, in the right to life, liberty, and security, international
refugees are people in a state where both the soul and the property threaten.
Their dignity and rights are also threatened when they travel from their
home country, including in tents/shelters. They often lose their property,

38
De Rover C, To Serve and To Protect (Jakarta: Raja Grafindo Persada, 2000) at 340.
39
International Covenant on Civil and Political Rights, 1966 Art. 2 par. (1).
40
Ibid Art. 3.
145 | No Choice but Welcoming Refugees

security, family, and even their souls in certain circumstances. International

refugees feel that life in refugee camps is much worse and more dangerous
than living in their own country. The right to life is a non-derogable right.
For this reason, the right to life is also adopted by many multilateral
agreements, especially on human rights. Article 3 of the Universal
Declaration of Human Rights stipulates that everyone has the right to life,
liberty and salvation41. Article 6 of the ICCPR states that every human has
an inherent right to life. This right must be protected by law. No human
being is rashly subject to the right to life.42 Article 6 of the Convention on
the Rights of the Child stipulates that “States Parties to the Convention
recognise that each child has the inherent right to his or her life”.43 Every
child can declare, "I must live and thrive as a man”.
Despite its non-derogable rights, the right to life can be reduced with certain
limitations. Article 4(1) of the ICCPR stipulates that States Parties to the
Convention may delay or diminish the enjoyment of the rights enshrined in
the Convention. 44 The circumstances referred to in Article 4(1) shall be
“when the State is in an emergency, which circumstances shall be reported
by the State intending to postpone it to all States Parties to the Convention
through the Secretary-General of the United Nations.” Subsequently in
Article 4(2) of the ICCPR then determines that “even in an emergency, even
if a country is in an emergency, it is not permissible to postpone or degrade
certain rights.”45 The meaning of these rights include the right to life, the
right to be free from acts of torture, the right not to be cruel and degrading
of human dignity, the right not to be enslaved, the right not to be imprisoned
simply because of the inability to fulfil the contract, the right not to be
penalised under retroactive law, the right to equality before the law,
embracing faith and religion.
Therefore, an emergency that could be justified to undermine the right to
life is described again in the General Comment. Article 4 of the ICCPR

41
Universal Declaration of Human Rights, supra note 19 Art. 3.
42
International Covenant on Civil and Political Rights, supra note 39 Art. 6.
43
Convention on the Rights of the Child, 1989 Art. 6.
44
International Covenant on Civil and Political Rights, supra note 39 Art. 4 par. (1).
45
Ibid Art. 4 par.(2).
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 146

states that two conditions must be met: "The situation must amount to a
public emergency which threatens the nation's life, and the State party must
have proclaimed a state of emergency”.46 It is an emergency that threatens
the nation's life, and the participating countries of the ICCPR must officially
declare the state of emergency in question). Loescher argues that many
refugees live in makeshift shelters or slums near their home country's
borders.47 They lose the opportunity to work and depend on international
charities to survive. Refugees are often separated from their family members,
are exposed to the danger of armed attacks, are subjected to many forms of
exploitation and degradation, and are haunted by the constant fear of
expulsion and forced return to their home country. A large number of
children have spent their entire lives in refugee camps. The longer they stay
there, the less chance they have to experience some semblance of normal life.
Finally, in the right to return, refugees also have the right to be able to return
to their home country voluntarily and guarantee security. States are
forbidden to force them to return to their home country when conditions are
still dangerous for them to return. At least many multilateral treaties on
human rights guarantee that individuals outside their country of origin can
return to their country. For example, Article 13(2) of the Universal
Declaration of Human Rights states that everyone has the right to leave every
country, including his country of origin and has the right to go back.48 Also,
Article 12(2) of the ICCPR states that everyone shall be free to leave any
country, including his own49 and paragraph (4) states that no one shall be
arbitrarily deprived of the right to enter his country.50
In the Convention on the Elimination of Racial Discrimination, Article 5(2)
(ii) states that everyone is guaranteed the right to be free to leave any country,
including its own country and return to one of the countries which it
chooses.51 The African Charter on Human Rights and Peoples Rights is also

46
Ibid General Comment Article 4.
47
Gil Loescher, “Refugee Issues in International Law” in Refug Int Relations (Oxford:
Oxford University Press, 1989) at 7.
48
Universal Declaration of Human Rights, supra note 19 Art. 13 par. (2).
49
International Covenant on Civil and Political Rights, supra note 39 Art. 12 par.(2).
50
Ibid Art. 12 par.(4).
51
Convention on the Elimination of Racial Discrimination, 1965 Art.5 par. 2 (ii).
147 | No Choice but Welcoming Refugees

provided for in Article 12(2), which stipulates that every individual shall have
the right to leave any country, including his own, and to return to his
country.52 Although the concept of protection of the right to go and return
to the home country or other countries is guaranteed in this African
Convention, this right may be restricted as long as it is governed by laws and
regulations solely for national security, law, public order, public health, or
morality.
This restriction is permissible and in line with Article 12(3) of the ICCPR
states that the rights shall not be subject to any conditions except the
limitations prescribed by law to protect the national security and public
order, public health or morals, or the rights and freedom from others, and
under other rights recognised in the ICCCPR Covenant. The right to return
to the country of origin is also guaranteed in the Convention on the Rights
of the Child to protect children born outside their home country.

B. Non-Refoulement principle
The principle of non-refoulement is specifically stipulated in Article 33 (1)
of the 1951 Convention. That Article stipulates: “No-Contracting State
shall expel or return (refoulement) a refugee in any manner whatsoever to the
frontiers of territories”. This means that the participating countries of the
1951 Convention are prohibited from evicting or returning refugees in any
way to the borders of areas where life and freedom will threaten by race,
religion, nationality, membership of a particular social group or political
opinion.
The principle of prohibition to restore, as provided for in Article 33 of the
1951 Refugee Convention, offers broad protection to refugees. It is
consistent with the framers' aim of the 1951 Refugee Convention: to provide
a wider range of protection than the earlier international agreements on
refugees.53 Most international law scholars provide detailed coverage of the

52
African Charter on Human Rights and Peoples Rights, 1981 Art. 12 par. (2).
53
David Weissbrodt & Isabel Hortreiter, “The Principle of Non-Refoulement: Article
3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 148

refoulement refugee phrase. Refugees also include refusals and deportations

that place refugee individuals at life-threatening risk. The phrase “by any
means” often means that the principle of non-refoulement is applied without
limitation. Then the phrase “where life and freedom will be threatened”
means that all forms of the threat of persecution outlined in Article 1 of the
1951 Refugee Convention can be considered. These three phrases indicate
the extent of the non-refoulement conception.
The non-refoulement principle in the 1967 Refugee Protocol also refers to
the prohibition of expulsion and return of refugees as outlined in Article 33
of the Refugee Convention 1951. The regional agreements relating to
refugees also use the same conceptual arrangements relating to the principle
of non-refoulement. However, some modifications exist for more
applicability in the region, such as rejection at the frontier violating the
principle of non-refoulement. It is stipulated in Article 3 of the Organization
of the African Unity Convention on Specific Aspects of Refugee Problems
in Africa that “no person shall be subject to a frontier, return, or
expulsion...”. 54 The Cartagena Declaration in Part III of paragraph 5
guarantees the importance of the principle of non-refoulement, which
includes a prohibition against refugee refusal at the border.55
The principle of the prohibition of expulsion and repayment may also apply
to asylum seekers, including those who have been granted asylum legally
under international law. This principle is also regarded as a fundamental
principle concerning refugee protection. For this reason, this principle is also
seen as an inherent right of the refugees from the time they first came out of
their country and during their stay in the refugee country 56. The right is a
non-derogable right considering that Article 42 of the 1951 Refugee
Convention stipulates that the State party to the Convention shall not be

Treatment or Punishment in Comparison with the Non-Refoulement Provisions of

Other International Human Rights Treaties” (1999) Buffalo Hum Rights Law Rev.
54
Organisation of the African Unity Convention on Specific Aspects of Refugee Problems in
Africa, 1969 Art. 3.
55
Cartagena Declaration on Refugees, 1984 Part. III, par.5.
56
Jean-François Durieux & Jane McAdam, “Non-Refoulement through Time: The
Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies
| Kaldor Centre” (2004) 16 Int J Refug Law 4–24.
149 | No Choice but Welcoming Refugees

allowed to place a reservation on the principle of non-refoulement outlined

in Article 33 of the Convention.
Article 33(2) of the 1951 Refugee Convention provides an exception to the
application of the principle of non-refoulement, which provides that: the
"benefit of the present provision may not, however, be claimed by a refugee
as a danger to the security of the country in which he is, or who has been
convicted by a final judgment of a grave crime, constitutes a danger to the
community of that country.” 57 Article 33(2) contains two reasons for the
permission of a State Party to the Convention to violate the obligation to
implement the principle of non-refoulement: public order and national
security.58 The reason for this public order can be used if a refugee has been
punished by the final judgment of a grave and dangerous crime for the people
of that country (having been convicted by a final judgment of a grave crime
of that country). Therefore, to refuse a refugee, the States Parties to the
Convention shall be obligated to base a court decision which is inkrakht
(final) to a serious crime committed by a refugee.
The national security, which may be exempted from applying the principle
of non-refoulement, shall have the condition that there shall be reasonable
grounds to regard it as a danger to the security of the country in which it is
situated. The phrase “proper reason” is not reiterated in the 1951 Refugee
Convention. In practice, it is often interpreted extensively by many of the
parties to the Convention. According to Weiner, large-scale refugee flows
can burden a country's economy and change ethnic balance into a source of
conflict, leading to local and national political turmoil.59However, at least
this reasonable ground requirement provides a control for the participating
States of the Convention in order not to be arbitrary in refusing the entry of
refugees.
Article 1(f) of the 1951 Refugee Convention provides that refugee status
shall not be granted to an individual for serious reasons, including whether

57
Convention relating to the Status of Refugees, supra note 30 Art. 33 par. (2).
58
Jan González Vega, “Syrian Refugee Crisis and National Security” (2020) 60 Rev
Derecho Puertorriq 275–295.
59
Myron Weiner, “Global Movement, Global Walls: Responses to Migration 1885-
1925” in Gung Wu, ed, Glob Hist Migr (Oxford: Westview Press, 1997).
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 150

he/she has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes; he/she has committed a serious non-
political crime outside the country of refuge before his admission to that
country as a refugee; he/she has been guilty of acts contrary to the purposes
and principles of the United Nations.60
This provision may directly limit the state parties to the Convention to
broadly interpret the reasons for “national security” as provided in Article
33(2) of the 1951 Refugee Convention.61 Hence, an individual committing
one or all of the offences referred to in the 1951 Convention can be said to
have threatened the security of a refugee country. As provided for in Articles
31 and 32 of the Vienna Convention on the Law of Treaties,62 the exemption
provided in Article 33(2) of the 1951 Refugee Convention shall be narrowly
interpreted. The interpretation must be per the objectives and functions of
Article 1(f) of the 1951 Refugee Convention and the basic principle of non-
refoulement.63

IV. INDONESIAN APPROACH TO NON-REFOULEMENT

PRINCIPLE
The non-refoulement principle, considered the highest norm in
international law, also bounds to Indonesia as a non-participant of the 1951
Refugee Convention. Thus, Indonesia has to show its commitment to
uphold the principle within the domestic jurisdiction. 64 As a form of
supervision of refugees in Indonesia, the government has determined to keep
the lives of refugees by placing them in the Immigration Detention Centre
(rudenim) or community house.65 Based on the Presidential Regulation No.

60
Convention relating to the Status of Refugees, supra note 30 Art. 1 (f).
61
Ibid.
62
Vienna Convention on the Law of Treaties, 1969 Art. 31 and 32.
63
Lauterpacht & Bethlehem, supra note 16.
64
Ni’matul Huda, Dodik Setiawan Nur Heriyanto & Allan Fatchan Gani Wardhana,
“The Urgency of the Constitutional Preview of Law on the Ratification of
International Treaty by the Constitutional Court in Indonesia” (2021) 7:9 Heliyon.
65
Pemerintah Provinsi Riau, “Kepala Kanwil Kemenkumham Riau Tinjau Langsung
Pengungsi Rohingya dari Aceh”, online: <https://www.riau.go.id/home/content/
151 | No Choice but Welcoming Refugees

125 of 2016, if a foreigner enters the border area and is suspected of being a
refugee, the Immigration Officer, in collaboration with the Police Officer,
can immediately place them at the nearest Immigration Detention Centre.66
The immigration officer has always used this legal standing to direct refugees
to the Immigration Detention Centre as a transit place for the refugees.
While living in this Centre, the Officers will investigate and surveillance for
further actions, including possibly deporting them back to their home
country or a third state.
Currently, detention centres in Indonesia are over capacity, considering that
too many refugees and asylum seekers enter Indonesian territory yearly.67 To
answer the problem regarding the limitations of detention centre facilities,
the Regency/City Government must have community housing to
accommodate the refugees. However, it depends on the intention and
financial ability of the Regency Government to facilitate them. In addition,
where the Regency Governments already accommodate the shelter, this is
usually only given to people who have obtained the status of refugees
stipulated by UNHCR due to limited space and resources. Refugees whose
application for refugee status is rejected by UNHCR68 will remain at the
Immigration Detention Centre until voluntary repatriation, resettlement to
a third country, or deportation is carried out.
Returning to their country of origin, which may still be unsafe for refugees,
would be against the non-refoulement principle. They may be hazardous to
come back due to the human rights violation situation in their home country
that particularly will discriminate and be dangerous for them. Hence the
refugees generally stay in the Immigration Detention Centre, on average, for

2023/04/11/15807-kepala-kanwil-kemenkumham-riau-tinjau-langsung-pengungsi-
rohingya-dari>; “Rudenim Makassar dorong UNHCR-IOM cari solusi pengungsi
imigran”, (2023), online: <https://www.antaranews.com/berita/3384444/rudenim-
makassar-dorong-unhcr-iom-cari-solusi-pengungsi-imigran>.
66
Presidential Regulation No. 125 of 2016 on the Settlement of Refugees from Abroad.
67
M Alfi Syahrin, “Tafsir Yuridis Peraturan Direktur Jenderal Imigrasi Nomor IMI-
0352.GR.02.07 Tahun 2016 tentang Penanganan Imigrasi Ilegal yang menyatakan
diri Sebagai Pencari Suaka atau Pengungsi dalam Kebijakan Selektif Keimigrasian:
Pendekatan Teori Hierarki Norma Huku” (2019) 2:1 J Ilm Kaji Keimigrasian.
68
UNHCR, “Refugee Status Determination”, online: <https://help.unhcr.org/
indonesia/registration/rsd/>.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 152

quite a long time. The lack of financial support from donors has caused
international organisations such as the International Organization for
Migration (IOM) and UNHCR to tighten and be very selective in granting
refugee status. In addition, refugees' resettlement chances are getting smaller
because some countries initially committed to accepting refugees have closed
themselves and even reduced their acceptance quotas.
The government assists in the voluntary repatriation of refugees who have
yet to receive certainty to settle in a third country. In this regard, the
government cooperates with embassies and international organisations such
as IOM and UNHCR. To be sure, the most dominant obstacle the
government faces is related to financial capacity, especially during the Covid-
19 pandemic, where most of the budget is allocated for epidemic control.69
The situation of the refugees who are in the shelter and the Immigration
Detention Centre is receiving squeeze and suffering. Thus, it is crucial to
reduce the number of refugees through voluntary repatriation, resettlement
to a third country, or deportation.
In addition, the deportation model adopted by Indonesia depends on the
situation of the country of origin. 70 If the country of origin is safe, the
refugees who do not want to return will be deported. The deportation process
is carried out with financial assistance from the government and generally
from refugees who have saved money while living in Indonesia. In some
cases, refugees who live in Indonesia through community housing
immediately adapt and socialise with the local community. Some refugees
are married to Indonesian citizens. Some refugees get Residence Identity
Cards through corrupt practices by paying a certain amount of money.71

69
Muhyiddin, “Covid-19, New-Normal dan Perencanaan Pembangunan Indonesia”
(2020) 4:2 Indones J Dev Plan.
70
Ali Muzafar, “Asylum Seekers and Refugees in Indonesia: Problems and Potentials”
(2016) 8:2 Cosmop Civ Soc J.
71
Merdeka, “Darurat, imigran di Riau mulai palsukan KTP hingga jadi gigolo" (2015),
online: <https://www.merdeka.com/berita-trending/20150422/peristiwa/17-darurat-
imigran-di-riau-mulai-palsukan-ktp-hingga-jadi-gigolo.html>.
153 | No Choice but Welcoming Refugees

V. LESSONS FROM THE EUROPEAN UNION

The European Union already has a guiding legal framework for protecting
refugees. 72 The Treaty on the Functioning of the European Union
(hereinafter: TFEU) is the primary law that, under Title V on the Area of
Freedom, Security and Justice, stipulates the absence of internal border
controls for persons in the EU shall frame a common policy on asylum,
immigration and external border control (Article 67 of the TFEU). Based
on the authorisation of the TFEU, several secondary legislations were
adopted by the Council and the European Parliament. The Qualification
Directive (Directive 2011/95/EC) establishes common ground to grant
international protection. The Asylum Procedures Directive (Directive
2013/32/EU) establishes common standards of safeguards and guarantees to
access a fair and efficient asylum procedure across the Union. The Reception
Conditions Directive (Directive 2013/33/EU) ensures common living
conditions for asylum applicants. The Dublin Regulation (Regulation (EU)
No 604/2013) designates the Member State responsible for examining the
asylum application.
The European Union is also a member of the European Convention on
Human Rights (ECHR). The ECHR is also seen as one of the basic
foundations in guaranteeing refugee rights, specifically Articles 3, 5(1) and
(4) and Article 8. The rules of the ECHR on the prohibition of torture
(Article 3), the right to liberty and security (Article 5) and the right to respect
for private and family life are all understood as cornerstone principles in the
design and implementation of EU law on asylum. In addition, member states
in the European Union have also provided guarantees of human rights for
refugees and are regulated by several national constitutions and fundamental
laws (e.g., Hungary and Germany).73 For example, under the Constitution
of the Federal Republic of Germany, "Persons persecuted on political
grounds shall have the right of asylum".74

72
McDonough P & Tsourdi E, “Greek Crisis: Asylum and EU solidarity” (2021) 4
Refug Surv Q at 68.
73
Bast J, “Deepening supranational integration: Interstate solidarity in EU migration
Law” Eur Public Law at 289.
74
The Constitution of the Federal Republic of Germany, 1949 Art. 16 A.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 154

In September 2015, the Council of the European Union, one of the EU's
organs, issued two important decisions: the first decision that relocates about
160,000 refugees residing in Italy and Greece to all other EU countries;75
and the second decision on the distribution of refugees to all EU Member
States based on the total population of each EU member state, the country's
total GDP, the average of asylum applications filed spontaneously between
2010-2014 and the unemployment rate of EU member states.76
Although both decisions are binding and the EU members must obey them,
some EU member states, such as Hungary, the Czech Republic, and
Slovakia, refuse to implement such decisions. However, Estonia, Latvia,
Lithuania, Luxembourg, Malta and Finland have complied with this
decision, and they relocated refugees residing in Greece and Italy. 77 The
compliance of EU member states in implementing the decision is at least
motivated by the political support factor of its government, the process of
acceptance of refugees that is easy and good, and a good perception related
to the relocation of refugees. In this regard, Germany received the most
asylum seekers in 2015, with 890,000 applications.78 The Swedish state also
receives many asylum seekers in the European Union, signalling the
commitment to implementing the Council of European Union's decision to
relocate refugees residing in Italy and Greece.79 As a result, Sweden's asylum
applications increased by 60% from November 2014 to November
2015. 80 Therefore, implementing the relocation decisions in the EU was

75
Council of the European Union "Council Decision (EU) 2015/1523" 14 September 2015
establishing provisional measures in the area of international protection for the benefit of
Italy and Greece', OJ L 239.
76
Martin Wagner & Albert Kraler, An Effective Asylum ResponsibilitySharing Mechanism
(2014) ICMPD Asylum Programme for Member States Thematic Paper at 1,3,10-
11.
77
European Council on Refugees and Exiles (ECRE), “Relocation of asylum seekers in
Europe: A view from receiving countries” (2018), online <https://asylumineurope.org/
wp-content/uploads/2020/11/aida_brief_relocation.pdf>.
78
Reuters, “Germany revises down 2015 refugee intake arrivals slow” (2016), online
<https://www.reuters.com/article/us-europe-migrants-germany-idUSKCN1201KY>
79
Monar J, “Justice and Home Affairs” (2016) J Common Mark Stud at 146.
80
Reuters, “Sweden sees record number of asylum seekers in 2015” (2015), online
<https://www.reuters.com/article/europe-migrants-sweden-idINKCN0RW1HP201
51002>.
155 | No Choice but Welcoming Refugees

efficient and resulted in a fair share of the mass influx of applications among
most Member States. Despite the reluctance of some Member States to
implement the relocation decisions (e.g., Hungary, Slovakia, and Czech
Republic), the asylum systems of the two most affected Member States that
are common entry points for refugees (Italy and Greece) could avoid being
overloaded. This sharing allocation policy on the number of refugees in a
regional scope can be an effective model to overcome the overload of
refugees. This model shows each country's willingness to protect refugees as
part of human rights compliance, including considering their capabilities.
For security reasons, the EU already has a good inter-state security system
that derives from the fact that the EU is a borderless space for people. The
Entry/Exit System (EES) is an automated IT system for registering travellers
from third countries each time they cross the EU external border. The EES
is a central system accessible to all border and law enforcement authorities in
the Member States. Therefore, it can efficiently prevent irregular migration.
Where an asylum seeker has been denied an appeal and has committed a
crime, the data is directly inputted into the Europol security system, which
is accessible to the security apparatus between EU Member States.81 Europol
is the special body of the European Union established in 1999 to enhance
the effectiveness and cooperation between the competent authorities of EU
Member States and collect intelligence data to prevent and combat
international organised crime. Europol should inform all forms of
information and events related to security threats in the Schengen Area. This
obligation is a form of respect for the principle of duty of sincere cooperation,
which has become the basis for establishing Europol.
The uniqueness that may appear appropriate for Indonesia and ASEAN to
emulate deals with the determination of the quota-sharing system conducted
by the European Union. This quota-sharing system is a regional
commitment to jointly overcome problems in determining the number of
refugees allocated to each member country by adjusting their domestic
resources. This system produces a sense of justice for EU member states. It

81
Zaun N, “The Power of Strong Regulating States” (2017) Basingstoke: Palgrave
Macmillan at 38.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 156

effectively avoids the concentration of refugees in certain countries,

considering that most refugees always have a target to live in Western
European countries.
As part of ASEAN, Indonesia needs to initiate a regional scheme that is
particularistic and effective in protecting refugees. The scheme can refer to
the best practices the European Union has implemented, but adapting it to
the regional situation is still necessary.82 ASEAN countries with a pillar of
cooperation can be a marker in formulating regional policies for refugees.
This cooperation can be done by providing space for people in areas often
refugee destinations to be actively involved in education, accelerating social
integration, carrying out communal monitoring, and opportunities for
refugees to develop their territory.

VI. CONCLUSION
The principle of non-refoulement has been accepted as the highest norm in
international law (jus cogens). Article 33 of the 1951 Refugee Convention has
an open regulatory character that allows the state or international
organisation to develop policies addressing refugee issues but must be in line
with the rules of human rights automatically attached to refugees. As a result,
this principle remains binding mainly to non-participating countries of the
1951 Refugee Convention. Indonesia passed Presidential Regulation No.
125 of 2016 on the Handling of Refugees from Abroad to bring solid,
integrated, and well-coordinated cooperation at the central and local
government levels in handling refugees. However, the country is still obliged
to ratify the 1951 Refugee Convention to gain benefits in determining the
status of refugees and asylum seekers. The Indonesian government carefully
approaches refugees under the backdrop of international law and customs,
including the principle of non-refoulement. In a practical aspect, it faces
some issues in determining the situation of the country of origin before they
are repatriated and the financial allocations owned by the government and/or
the refugees. Hence, an integrated and comprehensive statutory law must be

82
Kneebone S, ASEAN and the conceptualisation of refugee protection in Southeast Asian
states (New York, 2014) at 260.
157 | No Choice but Welcoming Refugees

legislated to overcome refugee issues in Indonesia. This law is deemed higher

than the Presidential Regulation, which provides more power to coordinate
all relevant authorities and access to more significant state financial allocation
for infrastructures and refugee living support.
In the regional context, Indonesia should encourage ASEAN to strengthen
its role in overcoming the issue of refugees in its territory. In addition to
promoting its member states to ratify the 1951 Convention, ASEAN can
also take the practice done by the European Union to ensure that existing
refugees can be jointly provided with protection. The tradition of
overcoming problems in cooperation needs to be realised in all policies taken
by ASEAN to address the issue of refugees.

ACKNOWLEDGMENTS
We would like to thank DPPM UII, a research centre in Universitas Islam
Indonesia, for the research grant that supported this research with research
grant No. F-DPPM-030.

CONFLICT OF INTEREST
The authors declare no competing interests.

ETHICS APPROVAL
The corresponding author states that no human participants or animals are
involved in this research.

INFORMED CONSENT
On behalf of all authors, the corresponding author states that no human
participants are involved in this research. Therefore, informed consent is not
required by them.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 158

REFERENCES
Adrian, Edwards, "UNHCR - UNHCR Report Shows Sharp Increase in
Sea Crossings in the Bay of Bengal", (2015), online: Brief Notes
<https://www.unhcr.org/news/briefing/2015/5/554c8adf9/unhcr-
report-shows-sharp-increase-sea-crossings-bay-bengal.html>.
Antara News, “Rudenim Makassar dorong UNHCR-IOM cari solusi
pengungsi imigran”, (2023), online: <https://www.antaranews.com/
berita/3384444/rudenim-makassar-dorong-unhcr-iom-cari-solusi-
pengungsi-imigran>.
Batam News, “Imigrasi Batam Amankan 10 Orang Imigran Gelap Jadi
Gigolo”, (2016), online: <https://www.batamtimes.co/2016/09/08/
imigrasi-batam-amankan-10-orang-imigran-gelap-jadi-gigolo/>.
Chakrabarty, Ishita, “Refoulement as a Corollary of Hate: Private Actors and
International Refugee Law” (2020) 35:3 Virginia J Int Law Online 53–
74.
Crock, Mary, “In the Wake of the Tampa: Conflicting Visions of
International Refugee Law in the Management of Refugee Flows”
(2003) 12:1.
C, De Rover, To Serve and To Protect (Jakarta: Raja Grafindo Persada, 2000).
Donnelly, Jack, Universal Human Rights in Theory and Practice (Cornell
University Press, 2013).
Durieux, Jean-François & Jane McAdam, “Non-Refoulement through
Time: The Case for a Derogation Clause to the Refugee Convention
in Mass Influx Emergencies | Kaldor Centre” (2004) 16 Int J Refug
Law 4–24.
Effendi, A Masyhur & Taufani Sukmana Evandri, HAM dalam
Dimensi/Dinamika Yuridis, Sosial, Politik (Bogor: Ghalia Indonesia,
2007).
Effendi, A Masyhur, Tempat Hak-Hak Azasi Manusia dalam Hukum
Internasional/Nasional (Bandung: Alumni, 1980).
European Union Agency for Fundamental Rights (FRA), Monthly Data
Collection on the Current Migration Situation in the EU, by European
Union Agency for Fundamental Rights (FRA) (2016).
Goodwin-Gill, Guy S & Jane Mcadam, The Refugee in International Law
(Clarendon Press, 2000).
159 | No Choice but Welcoming Refugees

Heriyanto, Dodik Setiawan Nur, “Klausula Terkait Perlindungan terhadap

Buruh Migran dan Urgensinya untuk Diatur Secara Khusus di dalam
Perjanjian Perdagangan Bebas antara ASEAN dan Uni Eropa” (2015)
22:3 J Huk IUS QUIA IUSTUM 329–345.
Huda, Ni’matul, Dodik Setiawan Nur Heriyanto & Allan Fatchan Gani
Wardhana, “The Urgency of the Constitutional Preview of Law on the
Ratification of International Treaty by the Constitutional Court in
Indonesia” (2021) 7:9 Heliyon.
Hugo, Graeme, George Tan & Caven Jonathan Napitupulu, “Indonesia as
a Transit Country in Irregular Migration to Australia” in Marie
McAuliffe & Khalid Koser, eds, A Long W to Go Irregul Migr Patterns,
Process Drivers Decis (ANU Press, 2017) 167.
Huibers, Theo, Filsafat Hukum (Yogyakarta: Kanisius, 1995).
Human Rights Watch, “Thailand: Allow Newly Arrived Rohingya Access
to Asylum”, (2022), online: <https://www.hrw.org/news/2022/06/07/
thailand-allow-newly-arrived-rohingya-access-asylum>.
Human Rights Watch, “World Report 2015: Indonesia”, (2014), online:
<https://www.hrw.org/id/world-report/2015/country-
chapters/268176>.
J, Bast, “Deepening supranational integration: Interstate solidarity in EU
migration Law” Eur Public Law.
J, Monar, “Justice and Home Affairs” (2016) J Common Mark Stud.
Lauterpacht, Sir Elihu & Daniel Bethlehem, “The Scope and Content of the
Principle of Non-Refoulement: Opinion” in Erika Feller, Türk Volker
& Frances Nicholson, eds, Refug Prot Int Law UNHCR’s Glob Consult
Int Prot (Cambridge University Press, 2003).
Loescher, Gil, “Refugee Issues in International Law” in Refug Int Relations
(Oxford: Oxford University Press, 1989).
Luthvi Febryka Nola, Refugee Employment Prohibition in Indonesia (2021),
Proceedings of the 3rd International Conference on Indonesian Legal
Studies, ICILS 2020, July 1st 2020, Semarang, Indonesia.
Merdeka “Darurat, imigran di Riau mulai palsukan KTP hingga jadi gigolo"
(2015), online: <https://www.merdeka.com/berita-trending/20150422
/peristiwa/17-darurat-imigran-di-riau-mulai-palsukan-ktp-hingga-
jadi-gigolo.html>.
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 160

Moussalli, Michell, Who is a Refugee? (Geneva: UNHCR, 1982).

Muhyiddin, “Covid-19, New-Normal dan Perencanaan Pembangunan
Indonesia” (2020) 4:2 Indones J Dev Plan.
Muzafar, Ali, “Asylum Seekers and Refugees in Indonesia: Problems and
Potentials” (2016) 8:2 Cosmop Civ Soc J.
Nickel, James W, Hak Asasi Manusia Refleksi Filosofis atas Deklarasi Universal
Hak Asasi Manusia (Jakarta: Gramedia Pustaka Utama, 1996).
N, Zaun, “The Power of Strong Regulating States” (2017) Basingstoke:
Palgrave Macmillan.
Pemerintah Provinsi Riau, “Kepala Kanwil Kemenkumham Riau Tinjau
Langsung Pengungsi Rohingya dari Aceh”, online: <https://
www.riau.go.id/home/content/2023/04/11/15807-kepala-kanwil-
kemenkumham-riau-tinjau-langsung-pengungsi-rohingya-dari>.
Prabaningtyas, Raden Ajeng Rizka Fiani, “Indonesia and The International
Refugee Crisis: The Politics of Refugee Protection” (2019) 9:2 J
Indones Soc Sci Humanit.
Prihandono, Iman, “Pemberian Suaka oleh Negara: Kasus Pemberian Suaka
oleh Pemerintah Australia kepada 42 WNI asal Papua” (2006) 21:1 J
Huk Yuridika.
Putri, Ganesh Cintika, “The Dilemma of Hospitality: Revisiting Indonesia’s
Policy on Handling Refugees Under International Law” (2022) 13:1 J
HAM 113–130.
P, McDonough & Tsourdi E, “Greek Crisis: Asylum and EU solidarity”
(2021) 4 Refug Surv Q.
Robertson, Geoffrey, Kejahatan Terhadap Kemanusiaan Perjuangan untuk
Mewujudkan Keadilan Global (Jakarta: Komisi Nasional Hak Asasi
Manusia Republik Indonesia, 2002).
Sari, Risky Vista Puspita, Aries Harianto & Ida Bagus Oka Ana, “Kepastian
Hukum Pengaturan Penggunaan Tenaga Kerja Asing di Indonesia”
(2018) Lentera Huk 389–402.
Starke, JG, An Introduction to International Law (London: Butterworth,
1977).
Subawa, I Made, “Hak Asasi Manusia Bidang Ekonomi Sosial dan Budaya
Menurut Perubahan UUD 1945” (2008) 33:1 Kertha Patrika.
161 | No Choice but Welcoming Refugees

Sulaiman, Hamid, Lembaga Suaka dalam Hukum Internasional (Raja

Grafindo Persada, 2002).
Supriadi, Slamet, “International Refugees Protection in the Context of
Human Rights” (2021) 7:4 Law Res Rev Q 417–432.
Syahrin, M Alfi, “Tafsir Yuridis Peraturan Direktur Jenderal Imigrasi
Nomor IMI-0352.GR.02.07 Tahun 2016 tentang Penanganan
Imigrasi Ilegal yang menyatakan diri Sebagai Pencari Suaka atau
Pengungsi dalam Kebijakan Selektif Keimigrasian: Pendekatan Teori
Hierarki Norma Huku” (2019) 2:1 J Ilm Kaji Keimigrasian.
S, Kneebone, ASEAN and the conceptualisation of refugee protection in Southeast
Asian states (New York, 2014).
Tan, Nikolas Feith, “The Status of Asylum Seekers and Refugees in
Indonesia” (2016) 28:3 Int J Refug Law 365–383.
The United States Embassy and Consulates in Indonesia, “2021 Country
Reports on Human Rights Practices: Indonesia” (2021), online:
<https://id.usembassy.gov/our-relationship/official-reports/2021-
country-reports-on-human-rights-practices-indonesia/>.
UNHCR, Human Rights and Refugee Protection (Jakarta: UNHCR, 1998).
UNHCR, “Refugee Status Determination”, online: <https://help.unhcr.org/
indonesia/registration/rsd/>.
Vega, Jan González, “Syrian Refugee Crisis and National Security” (2020)
60 Rev Derecho Puertorriq 275–295.
Velez, Leslie E & Claire A Smearman, “Protecting the World’s Most
Vulnerable” (2008) 41 Md Bar J 32–37.
Weiner, Myron, “Global Movement, Global Walls: Responses to Migration
1885-1925” in Gung Wu, ed, Glob Hist Migr (Oxford: Westview Press,
1997).
Weissbrodt, David & Isabel Hortreiter, “The Principle of Non-
Refoulement: Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment in
Comparison with the Non-Refoulement Provisions of Other
International Human Rights Treaties” (1999) Buffalo Hum Rights
Law Rev.
Wagner, Martin, & Albert Kraler, An Effective Asylum ResponsibilitySharing
Mechanism (2014) ICMPD Asylum Programme for Member States
 Lentera Hukum, 10:1 (2023), pp. 135-162 | 162

Thematic Paper at 1,3,10-11.

Wahyun, Tri, “UNHCR: Jumlah Pengungsi di Indonesia Meningkat”,
(2015), online: <https://www.cnnindonesia.com/nasional/2015072820
4221-20-68699/unhcr-jumlah-pengungsi-di-indonesia-meningkat/>.

Cite this article: Heriyanto, Dodik Setiawan Nur, et al., “No Choice but Welcoming Refugees” (2023) 10:1
Lentera Hukum 135-162, DOI: <https://doi.org/10.19184/ejlh.v10i1.37920>.