2. Indonesia’s non-refoulement obligation under CAT

This section and the following are dedicated to identifying Indonesia’s non-refoulement obligations under international law starting with CAT. The examination will centre on three issues that affect legal responsibility for Indonesia, namely: ratione temporis (temporal jurisdiction, reflected through ratification), ratione personae (personal scope or who benefits from the treaty), and ratione loci (territorial and extraterritorial application). This last issue is important, as the recent arrival of Rohingya refugees in Aceh illustrates.

The prohibition on refoulement is expressly codified in Article 3 of CAT as follows:

1. 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.Footnote ²⁴

First, Indonesia ratified CAT on 28 October 1998 with a declaration and a reservation, but no reservation was made with respect to Article 3, in which the prohibition on refoulement is embodied. Second, Article 3 is binding and the limitation of personal scopeFootnote ²⁵ is absent in the Article, meaning that, irrespective of nationality or legal status, protection shall be provided for all individuals, including aliens or the stateless.

Third, with respect to territorial scope, it is imperative that the threshold of territoriality be established because an act of refoulement may bring different legal consequences, depending on the geographical location of those claiming protection. For example, an act of refoulement may have different legal consequences under international law if it is directed at those who have entered or resided within a state’s territory, if it comprises rejection at the frontier, or if it takes place outside a state’s territory (in another state’s territory or on the high seas with effective control by state agents).Footnote ²⁶ In the context of CAT, there is no further explanation as to what extent Article 3 applies territorially. But a general obligation is embodied in Article 2, which compels state parties to prevent acts of torture in any territory under its jurisdiction. Moreover, the wording used in Article 3 prohibits states “to expel,” “return” (refouler), or extradite a person—similar to the provision on non-refoulement under Article 33 of the 1951 Refugee Convention (other than the prohibition on extradition). If we look at the words of Article 33 of the 1951 Refugee Convention, similarly, there are no specific geographical limitations.Footnote ²⁷

Regarding the word “expel” in CAT, it may have a territorial consequence, as it literally means “to force or drive out” or “forced to leave.”Footnote ²⁸ In order for a person to be driven out of a state’s territory, he or she must already be within a state’s territory. The word “return” brings more confusion, as a person may be able to be returned without having to have first entered a state’s border. However, the word “return” must be contextualized with the French word “refouler” that refers to the removal of a person or refusal to allow him or her to enter a state’s territory.Footnote ²⁹ The combination of words therefore implies the territorial and extraterritorial application of both Article 33 of the 1951 Refugee Convention and Article 3 of CAT.

The responsibility of a state to make a sufficient assessment of the risk of torture or ill-treatment regarding an act of refoulement within its territory and rejection at the border can lead to “indirect” or “constructive” refoulement: an act to expel a deportee to another state or territory without the benefit of a sufficient assessment of the risk of torture or ill-treatment present in the final destination state.

The Committee Against Torture (ComAT)’s Concluding Observations on the US’s country report in 2006 stated that

This means that responsibility is attributable to a state for refoulement when it exercises effective control over its officials or those acting on behalf of the state wherever it occurs.Footnote ³¹ The principle of non-refoulement applies regardless of whether the relevant acts occur “beyond the national territory of the State …, at border posts or other points of entry, [or] in international zones.”Footnote ³²

Additionally, in Mutombo v. Switzerland,Footnote ³³ the ComAT held that the prohibition of refoulement extends to the refoulement of persons to third countries in which they would face a real risk of being tortured or being returned to a country where they might be in danger. Adhering to the United Nations High Commissioner for Refugees (UNHCR)’s key interpretation of the 1951 Refugee Convention, the ComAT follows the standard as “personal, real and foreseeable risk” on whether or not a country violates the principle of non-refoulement, be it returning a person to their place of origin or removal to third countries.Footnote ³⁴ This means that, if there is evidence that the returned or removed person will be likely to experience a “personal, real and foreseeable risk,” then the host country that has done the act of refoulement will violate the prohibition-of-refoulement provision contained in CAT. Nils Melzer, the Special Rapporteur on Torture, also stated in his report prepared for the 37th Session of the Human Rights Council that “[f]or the purposes of non-refoulement, any torture or ill-treatment which the concerned persons or their families were exposed to in the past or would be exposed to upon deportation” would constitute an indication that the person is in danger of being subjected to torture.Footnote ³⁵

Another important aspect of the prohibition of refoulement under Article 3 of CAT is that the provision is absolute and derogation is not permitted. By contrast, Article 33(2) of the 1951 Refugee Convention states that non-refoulement

This means that, if an alien or refugee posed security threats towards the national security and community of the host country, an exception can be made in relation to this person. However, there is no provision under CAT that recognizes an exception to the state obligations enshrined in Article 3. Further, Article 2(2) of CAT stipulates that there are “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 2 of CAT clearly reaffirms that refoulement is not allowed under any circumstances whatsoever under this treaty. This view is also supported by the jurisprudence of the ComAT in the case of Gorki Ernesto Tapia Paez v. Sweden. The Committee affirmed that “[t]he Committee considers that the test of article 3 of the Convention is absolute,”Footnote ³⁶ with no derogation permitted.Footnote ³⁷

From this explanation, there are at least three important points that are relevant to Indonesia’s obligation on the prohibition of refoulement under CAT. First, the application of Article 3 is to all persons and not exclusively to Indonesian citizens. Second, Article 3 applies both within Indonesian territory, rejection at the border that constitutes indirect refoulement, and extraterritorially wherever refoulement occurs when a state has effective control over its officials.Footnote ³⁸ Lastly, the specific non-refoulement principle under CAT contains an absolute and non-derogable prohibition of refoulement, in contrast to the Refugee Convention (see Article 33(2)). At the same time, it should be noted that the meaning of “torture” is narrower than the test for “persecution” under the Refugee Convention, Article 1A(2).Footnote ³⁹

3. Indonesia’s non-refoulement obligation under the ICCPR

In addition to CAT, Indonesia is a state party to the ICCPR, having ratified it on 23 May 2006. Within the ICCPR framework, there are two relevant articles that relate indirectly to the non-refoulement principle. First, Article 6 guarantees the right to life. Paragraph 1 of the Article states as follows: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

The Article imposes obligations on states not to transfer any individual to another country if it would result in exposing him or her to serious human rights violations, notably arbitrary deprivation of life.Footnote ⁴⁰ It can therefore be argued that, if the refoulement act exercised by states led to the serious human rights violations, especially deprivation of life, refoulement in itself is also prohibited. Second, the prohibition of refoulement is embedded under Article 7, which prohibits torture: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Article 7 contains an implicit obligation not to conduct refoulement against an individual to a place where he or she may experience torture or inhuman or degrading treatment or punishment.

A broad interpretation of Article 7 was supported by the UN Human Rights Committee (UNHRComm). In 1992, the UNHRComm stated in its second General Comment that “[s]tates parties must not expose individuals to the danger of torture, cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”Footnote ⁴¹

The articulation of the non-refoulement principle in various international treaties shares a similar object and purpose: to uphold the wide notion of human rights protection and prohibit the conduct of torture against individuals. The significance of non-refoulement is to prevent an individual or group of people from being subject to torture and other inhuman and degrading treatment in third countries or in their countries of origin.Footnote ⁴²

With respect to the “embeddedness” of the non-refoulement principle under Articles 6 and 7, the ICCPR’s non-refoulement provision provides a broader scope of application compared to CAT, as it extends the ban beyond torture to cruel, inhuman, and other degrading treatment or punishment. This illustrates how non-refoulement is not exclusively “attached” in refugee-related agreements, but is also entrenched in other international human rights provisions. For example, with respect to the treatment of refugees in Indonesia, the failure to protect their basic human rights could amount to inhuman and degrading treatment.Footnote ⁴³

In one of the UNHCR Human Rights Committee’s early cases concerning refoulement, the Committee held that, if a state extradites a person within its jurisdiction where there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the refouling state may be in violation of the Covenant.Footnote ⁴⁴ With respect to the scope of the prohibition on refoulement under the ICCPR, the relevant jurisdiction is territorial, which includes asylum seekers and refugees within Indonesia’s territory or at the state border. It was made clear in General Comment No. 31 that

This General Comment also firmly established that rejection at a state’s border would amount to refoulement because the act of “rejecting” a person from entering the border is constituted within or at the state’s border itself—that is, subject to the host state’s jurisdiction.

Additionally, the prohibition of refoulement in the ICCPR is non-derogable, even in times of armed conflict and in the context of counter-terrorism. In the UNHCR Human Rights Committee’s General Comment No. 29, the Committee stated that

Moreover, in the Committee’s 2006 Concluding Observation on Canada, the Committee reaffirmed that:

With the rule of non-refoulement implicit in the ICCPR, there are four obligations that bind Indonesia. First, Indonesia cannot neglect the fact that the non-refoulement obligation is implicitly embedded in Articles 6 and 7 of the ICCPR, made clear by the jurisprudence of the UNHCR Human Rights Committee and its general comments. Second, the non-refoulement principle in the ICCPR is directed towards all individuals, irrespective of their legal status and nationality. As long as the state has jurisdiction over the individuals, they are protected by ICCPR provisions and Indonesia has an obligation to fulfil their rights. Third, the prohibition on refoulement is not limited to those within Indonesia’s territory or rejection at the border. Lastly, similar to CAT, the non-refoulement principle in the ICCPR is absolute without exception because the principle is embedded in Articles 6 and 7, where the rights provided are non-derogable.

4. Indonesia’s non-refoulement obligation under CRoC

Regarding children’s rights, Indonesia is a state party to CRoC, ratified through Presidential Decision No. 36 of 1990. With respect to the scope of CRoC, the Convention applies to all individuals, regardless of their nationality, as long as they qualify under the definition of “children” within the object and purpose of the instrument. CRoC Article 1 provides that “[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

This definition of a child does not distinguish based on nationality, territory, or geographical location, although it provides discretion to state parties to determine according to their own laws the age limits of a child. This means that state parties cannot adjust the age limit when defining who qualifies as a “child.” As there is no other qualification provided under the Convention with respect to personal and territorial scope, regardless of nationality, immigration status, statelessness, or geographical location, the obligations provided under the instrument apply to all children as defined under CRoC.Footnote ⁴⁸

Similar to the ICCPR, under this Convention, the prohibition on refoulement is not explicitly mentioned. However, in the Committee on the Rights of the Child (CRC)’s General Comment No. 6 (2006) on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, an expansive interpretation of non-refoulement was elaborated. Although the rule is not embodied explicitly, the CRC’s general comments are authoritative interpretations of the treaty.Footnote ⁴⁹ The CRC specifically provided that the prohibition on refoulement is embodied, but not limited to, Articles 6 (the right to life and survival) and 37 (the right to liberty and freedom from torture) as follows:

The Committee made specific reference to Article 33 of the Refugee Convention and Article 3 of CAT when it affirmed the need to respect such obligations. However, as Indonesia is a non-party to the 1951 Refugee Convention, the specific standard that applies to Indonesia is that which is being provided within the meaning of Article 3 of CAT. In addition, because of the CRC’s inclusion of Article 37 in the interpretation of non-refoulement, the definition of non-refoulement for children leads to a more expansive set of rights than other non-refoulement definition, as it incorporates the deprivation of liberty and detention practices covered by this specific Article.Footnote ⁵⁰

Similar to CAT and the ICCPR, no derogation can be entertained for non-refoulement obligations under CRoC, even in emergency situations.Footnote ⁵¹ Further, children seeking asylum are entitled to the enjoyment of rights enshrined under CRoC Article 22(1) to “receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments,” which Indonesia has ratified. This provision broadens the personal scope of CRoC in line with Article 2,Footnote ⁵² as the CRC states that “the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State party … irrespective of their nationality, immigration status or statelessness.”Footnote ⁵³

5. Indonesia’s non-refoulement obligation under customary international law

While Indonesia is not a state party to the 1951 Refugee Convention, it is still bound by the non-refoulement obligation provided by the treaties outlined above, especially on the elements of obligations that have attained the status of customary law. The embodiment of the non-refoulement principle in multiple international treaties may “codify” or “crystallize” the principle to attain customary status in international law. In contemporary international law, it is not debatable anymore whether non-refoulement is regarded as an international customary law norm. In its Advisory Opinion, the UNHCR was of the view that the principle has satisfied the two elements of custom formation: state practices and opinio juris.Footnote ⁵⁴ The practice of hosting refugees by non-signatory states of the 1951 Refugee Convention in mass influx situations has shown that these states have adhered to the principle in spite of their status as non-parties.Footnote ⁵⁵ Also, the fact that states have always provided explanations or justifications in cases when they considered refoulement as necessary implicitly confirms their acceptance of the non-refoulement principle.Footnote ⁵⁶

A study by Lauterpacht and Bethlehem (Reference Lauterpacht, Bethlehem, Feller, Türk and Nicholson2003) concluded that state participation in international agreements containing non-refoulement shows that 170 out 189 members of the UN at that time were party to one or more Conventions that contained non-refoulement as a fundamental aspect.Footnote ⁵⁷ In fact, Costello and Foster (Reference Costello and Foster2015) argue that non-refoulement is nearly universal because participation equals around 90% of UN members.Footnote ⁵⁸ Even though not considered as an active state practice, the number of widespread ratifications of international agreements that contain the non-refoulement principle shows a manifestation of “virtual” state practice, which amounts to the emergence of customary rule.Footnote ⁵⁹

The question raised with respect to the non-refoulement principle under customary international law is whether Indonesia is bound by this obligation. Generally, in international law, states are only bound by a certain rule if they have shown their consent and choose to be bound as such. One of the oldest views on the system of international law can be reflected from lotus dictum. With regard to the international-law system, the Permanent Court of International Justice (PCIJ) held that

The dictum puts emphasis on the free will of states regarding whether they choose to be bound by the international rule of law or not. Only if states show their consent to be bound by the rule through ratification of or accession to international agreements shall the rule be binding upon them. Similar to the rule of customary international law, if states have chosen to practise the rule since its inception, then the rule becomes binding upon them.

However, there are also exceptions to being bound by customary law rules if a state is a persistent objector. To become a persistent objector is to object against the rule since/during the formation of the rule in international relations.Footnote ⁶¹ The persistent objector rule appeared on the International Law Commission’s Third Report on identification of customary international law. In Part VIII of the document, it is expressly asserted that “it is widely held that a State that has persistently objected to an emerging rule of customary international law, and maintains its objection after the rule has crystallized, is not bound by it.”Footnote ⁶² This is problematic for late-independence countries because they may have gained independence only after some rules had already attained customary status. In spite of this problem, there is a small possibility that those states could show their disagreement and not practise the rule after they acquire independence in order to opt out from the rule.Footnote ⁶³ However, their objection must be express, as there is a rebuttable presumption of acceptance by states.Footnote ⁶⁴

The question of whether a country can opt out from the established rule is not relevant for Indonesia because, in fact, Indonesia gained independence in 1945 and entered the international system (formally the UN) in 1950, a year before the Refugee Convention came into existence. But, since Indonesia, as most Southeast Asian countries do, perceives the Convention as Eurocentric, Indonesia chose not to formally accede.Footnote ⁶⁵ Its initial encounter with a refugee crisis was in the 1970s.Footnote ⁶⁶ This is the starting point with respect to whether Indonesia would choose to oppose the non-refoulement principle or practise the international customary norm created by states at that time. But, as Indonesia’s experience with refugees demonstrates (as explained in the Introduction to this Special Issue), it has not persistently objected to the non-refoulement principle. By contrast, Indonesia’s early and subsequent practices of hosting refugees (including delegating its functions to the UNHCR and the International Organization for Migration (IOM)) confirms its adherence to the principle non-refoulement even without having ratified the 1951 Refugee Convention and its additional protocol.Footnote ⁶⁷

6. Indonesia’s non-refoulement responsibilities: Rohingya refugees in Aceh

As Indonesia has not ratified the 1951 Refugee Conventions, its non-refoulement obligations are derived more broadly from the field of human rights law, specifically international instruments that Indonesia has ratified, and from the scope of customary law. In some respects, as I have explained, the obligations to which Indonesia has signed up under international instruments are broader or more extensive than those that would apply if Indonesia were a party to the Refugee Convention. Moreover, they are legal obligations that are distinct from humanitarian protection.Footnote ⁶⁸

In respect to the personal scope of CAT, the ICCPR and CRoC, Indonesia’s non-refoulement obligations apply more broadly than the Refugee Convention, as their prohibitions are universally directed against any individuals, regardless of their status, including foreign nationals and the stateless.Footnote ⁶⁹ By contrast, the Refugee Convention applies to refugees or asylum seekers, as defined by Article 1A(2) of the Convention. This includes those who have not formally been identified as refugees but who are refugees under the “declaratory theory,”Footnote ⁷⁰ as they satisfy the elements of the refugee definition, namely someone who is unable or unwilling to return to their country of origin because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.Footnote ⁷¹ As noted above, the PR applies to both refugees and asylum seekers, and contains a definition that is similar to that in the Refugee Convention.Footnote ⁷² Further, I have noted above the PR’s provisions on the search-and-rescue and disembarkation of refugees and asylum seekers.

On the one hand, the human rights treaties, especially CAT and the ICCPR, provide narrower protection than protection from a “well-founded fear” of “persecution” as per the Refugee Convention (e.g. from “torture” under Article 3 of CAT and Article 7 of the ICCPR). The definition of torture as provided under Article 1 of CAT refers to “severe pain or suffering;” it also requires the complicity of state officials. Further, the standard of proof requires “substantial grounds” or a “foreseeable real and personal risk.”Footnote ⁷³ Whilst “persecution” provides a higher standard of protection, “torture” potentially covers a broader range of activities. On the other hand, the ICCPR is wider in scope than CAT and the torture provisions. For example, it encompasses provisions that deal with “deprivation of life” under Article 6 of the ICCPR and “inhuman and degrading treatment” under Article 7 of the ICCPR. The ICCPR, in these respects, is broader than the Refugee Convention, which protects refugees from persecution.

Moreover, exceptions under the Refugee Convention can also be made, as stipulated under Article 33(2), if the host country finds reasonable grounds for regarding a refugee as a danger to the security of the country, whereas the non-refoulement obligations under CAT, the ICCPR, and CRoC are not subject to limitations—they are absolute and non-derogable. Therefore, Indonesia is responsible for fulfilling its legal obligations under these treaties for all individuals, regardless of their nationality or legal status.

Further, under CAT, the ICCPR, CRoC, the UNHCR Human Rights Committee’s general comments, and subsequent jurisprudence established within the human rights monitoring regime, the extent to which non-refoulement is applied is not limited by the notion of “territory.” In Section 2 above, it was established under CAT that, even if an act of refoulement occurs outside of the state’s territory, it can constitute a violation of the treaty. The same goes for the ICCPR and CRoC. Additionally, if states exercise effective control over state agents abroad, refoulement in this context would still constitute a violation of international law and, therefore, the state could be held accountable for any acts committed by their agents. In summary, the rule of non-refoulement applies under the human rights instruments within Indonesia’s border, at the border, and outside the border, if there is effective control by state officials.

In terms of the scope of the customary principle, Costello and Foster accept the following description of the “principle of non-refoulement” as one

Thus, it can be concluded that, because of the status of non-refoulement as a principle of international customary law, Indonesia’s legal non-refoulement obligations extend to non-nationals who are included in the beneficiary class defined in the Refugee Convention.Footnote ⁷⁵ The territorial scope of application of the principle “mirrors that in respect to refugees”—that is, it applies wherever the acts may occur.Footnote ⁷⁶

The current crisis of Rohingya refugees in the Andaman Sea, which appears to be a repeat of the 2015 crisis,Footnote ⁷⁷ is testing the scope of the PR and Indonesia’s legal non-refoulement obligations. It has been suggested that the failure to carry out search-and-rescue operations during the 2015 Andaman Sea crisis was a “catalyst” for the 2016 PR.Footnote ⁷⁸ In June 2020, the Indonesian Foreign Ministry’s spokesperson could not provide a positive answer when asked whether Indonesia would allow Rohingya boat refugees to disembark if they arrived in Indonesian waters and shores.Footnote ⁷⁹ In the end, the government did not assist in the interception and assistance provided to 99 boat people found in Aceh’s waters. Only the local fishermen did.Footnote ⁸⁰ In early September 2020, another 297 Rohingya boat arrivals sought refuge in Aceh and are being reluctantly hosted by the local government of Lhokseumawe. These recent experiences suggest that the PR is not the “game-changer” that it was expected to become.Footnote ⁸¹