Non-refoulement

Non-refoulement is a principle in international law, specifically refugee law, that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened. Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on membership in a social group or class of persons, non-refoulement refers to the generic repatriation of people, generally refugees into war zones and other disaster areas.

Non-refoulement is a jus cogens (peremptory norm)^{[citation needed]} of international law that forbids the expulsion of a refugee into an area where the person might be again subjected to persecution.

History

The principle of "refoulement" was officially enshrined in the 1951 Convention Relating to the Status of Refugees and is also contained in the 1967 Protocol and Art 3 of the 1984 Torture Convention.

The principle of non-refoulement arises out of an international collective memory of the failure of nations during World War II to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime. Today, the principle of non-refoulement ostensibly protects recognized refugees and asylum seekers from being expelled from countries that are signatories to the 1951 Convention or 1967 Protocol. This has however not prevented certain signatory countries from skirting the international law principle and repatriating or expelling bona fide refugees into the hands of potential persecutors.

Tanzania's actions during the 1994 genocide in Rwanda have been alleged to have violated the nonrefoulement principle. During the height of the crisis when the refugee flows rose to the level of a "mass exodus," the Tanzanian government closed its borders to a group of more than 50,000 Rwandan refugees who were fleeing genocidal violence. In 1996, before Rwanda had reached an appropriate level of stability, around 500,000 refugees were returned to Rwanda from Zaire.

One of the grey areas of law most hotly debated within signatory circles is the interpretation of Article 33. Interdiction of potential refugee transporting vessels on the high seas has been a common practice by the U.S. government in particular, raising the question of whether Article 33 requires a refugee to be within a country or simply within the power of a country to trigger the right against refoulement.

Since 1951, 140 states have signed the Convention, officially recognizing the binding principle of non-refoulement expressed therein.

Modern application

An example of the non-refoulement principle can be found in the 2007 issue of Israel jailing 320 refugees from the Darfur conflict in Western Sudan. Due to laws erected for the protection of Israel from the anti-Semitic atmosphere in the region, refugees fleeing to Israel in avoidance of the Darfur conflict were jailed in the interest of national security. After some 200 were determined not to be a threat, usual repatriation guidelines could not be followed in part due to non-refoulement principles. Many of them were released to Israeli collective work communities called kibbutzim and moshavim to work until the conflict subsides enough for their return.

Literature

• Kees Wouters International legal standards for the protection from refoulement - a legal analysis of the prohibitions on refoulement contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture, Antwerpen: Intersentia, 2009
• Guy S. Goodwin-Gill & Jane McAdam The refugee in international law, Oxford: Oxford UP, 2007 (prev. 1983, 1996)
• Académie de Droit International de La Haye / Hague Academy of International Law Le droit d'asile = The right of asylum, Dordrecht: Nijhoff (1990)

External links

• Defining the parameters of the non-refoulement principle, LLM thesis
• The Principle of Non-Refoulement, Cambridge Roundtable Discussion Results on the definition.