TINJAUAN HUKUM PENGATURAN ASAS NON-REFOULEMENT DAN PENERAPANNYA TERHADAP PENGUNGSI DI INDONESIA

Abstract

As a principle that has been accepted by the international community and recognized as a cogens juice, deviations of non-refoulement principle on any basis cannot be justified. The problems and objectives of the study are to know the basic non-refoulement arrangements in international law and the application of non-refoulement principles in Indonesian legislation. The theory used is human rights theory, the theory of ratification and the principle theory of Non-Refoulement as JusCogens. The research methods used are normative legal research, as well as using techniques and data collection tools in the form of secondary data collection methods by conducting library studies. Based on the results of the study, in international law, particularly those governing refugees, the principle of non-refoulement has been inaugurated in various forms of international law such as conventions, declarations and also in international customs law (customary international law). By not being a party to the 1951 Convention and the 1967 Protocol, the Indonesian Government also has no authority to provide the determination of refugee status, so that the arrangement of the problem is determined by UNHCR. All countries including the Unratified Convention of the year 1951 are obliged to uphold the standard of refugee protection that has become part of the general international law, as the Convention is already a cogens juice, and no refugee can be returned to the territory where its life or freedom is threatened. However, Indonesia certainly cannot remove the hand if there are asylum seekers or refugees entering the territory of Indonesia. The handling of refugees in Indonesia prior to the invitation of Presidential Decree No. 125 year 2016 on the handling of refugees from foreign affairs using the rules of law with the dimension of human rights. These rules are CONSTITUTION 1945, article 28 G (2), Tap MPR No. XVII/MPR/1998, LAW No. 5 of 1998 on ratification of Againts Convention Torture and Other Cruel, In Human or Degrading Treatment or Punishment, UU No. 37 year 1999 on Foreign Relations article 25 (1) and article 27 (1) UU No. 39 year 1999 of Human Rights article 28 (1). With the enactment of Presidential Decree No. 125 year 2016 can be concluded that Indonesia has a legal basis in the handling of refugees who entered the territory of Indonesia and no longer occurs the law void.