Non-refoulement is a principle of international law which forbids the rendering of a true victim of persecution to their persecutor. Generally the persecutor in mind is a state actor. It is a principle of both the customary and trucial law of nations.
Non-refoulement is a key facet of refugee law, that concerns the protection of refugees from being returned or expelled 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.
It is debatable whether non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a refugee into an area, usually their home-country, where the person might be again subjected to persecution.
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 UN Torture Convention.
Article 33 of the 1951 Convention contains the following two paragraphs that define the prohibition of the expulsion or return of a refugee:
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
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, however has not prevented certain signatory countries from skirting the international law principle and repatriating or expelling bona fide refugees into the hands of potential persecutors.
Thailand's forcible repatriation of 45,000 Cambodian refugees at Prasat Preah Vihear on June 12, 1979 is considered to be a classic example of refoulement. The refugees were forced at gunpoint across the border and down a steep slope into a minefield. Those who refused were shot by Thai soldiers. Approximately 3,000 refugees died.
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.
The Australian Government has been accused by the UNHCR and more than fifty Australian legal scholars of violating the principle of non-refoulement, by returning 41 Tamil and Singhalese refugees to the Sri Lankan Navy in June or July 2014, as part of Operation Sovereign Borders immigration and border protection policy. This action was followed in September 2014 by a Bill tabled in the Australian Parliament that would remove Australia's non-refoulement obligations, and sought to reinterpret Australia's international treaty obligations.
- 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)
- Jean Allain, 2001, "The jus cogens Nature of non‐refoulement", International Journal of Refugee Law, Vol. 13, Issue 4, pp. 533-558.
- Kalin et al.; Zimmermann ed. (2011). The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: a Commentary; Article 33, para. 1. New York: Oxford University Press Inc. pp. 1345–1346. ISBN 978-0-19-954251-2.
- Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, Martinus Nijhoff Publishers, 1997; p. 147. ISBN 9041104097
- Thompson, Larry Clinton. Refugee Workers in the Indochina Exodus, 1975-1982. Jefferson, NC: McFarland, 2010. p. 175.
- Ben Barber, "Feeding Refugees, or War?" Foreign Affairs, July/August 1997.
- Refugee Protection: A Guide to International Refugee Law.
- Introductory note by Guy S. Goodwin-Gill, procedural history note and audiovisual material on the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees in the Historic Archives of the United Nations Audiovisual Library of International Law
- Stephanie March, "Sri Lankan asylum seekers facing criminal investigation after being handed back by Australian authorities," ABC News, 7 Jul 2014
- "Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014," ComLaw, accessed 27 November 2014
- "Morrison's Power Grab," GetUp, accessed 27 November 2014
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