PEMBATASAN HAK BEKERJA BAGI PENGUNGSI SEBAGAI CONSTRUCTIVE REFOULEMENT DALAM HUKUM PENGUNGSI INTERNASIONAL

Abstract

This study aims to analyze the urgency of fulfilling refugees’ right to work as an integral part of international protection and to formulate parameters for determining when restrictions on the right to work constitute constructive refoulement. This research employs a normative legal method using statutory, conceptual, and case approaches. The legal materials consist of the 1951 Convention Relating to the Status of Refugees, the International Covenant on Economic, Social and Cultural Rights (ICESCR), other international legal instruments, international judicial decisions, and scholarly doctrines. Although States retain the authority to regulate and restrict access to employment, such restrictions must comply with the principles of legality, legitimate aim, necessity, and proportionality. Where restrictions cumulatively result in the failure to ensure an adequate standard of living, the absence of effective livelihood alternatives, the existence of indirect coercion, a causal link between the restriction and the refugee’s decision to leave the host State, and a continuing risk of persecution in the country of origin, such measures may amount to constructive refoulement. This study proposes five normative parameters to assess the limits of State discretion in restricting refugees’ right to work while addressing the normative gap concerning constructive refoulement within international refugee law.