Non-refoulement (//) is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales. It is a principle of customary international law, as it applies even to states that are not parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol. It is also a principle of the trucial law of nations.
It is debatable whether non-refoulement is a jus cogens of international law. If so, international law would permit no abridgments for any purpose or under any circumstances. The debate over this matter was rekindled following the September 11, 2001 terror attacks in the United States as well as other terrorist attacks in Europe.
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. Following World War II, the need for international checks on state sovereignty over refugees became apparent to the international community. During the war, several states had forcibly returned or denied admission to German and French Jews fleeing the Holocaust. After the war, millions of refugees and prisoners from the Soviet Union were forcibly returned despite concerns they would face retaliation from the Soviet government. In turn, the Soviet government tortured or killed more than two million of those sent back by Western governments.
Non-refoulement presents an inherent conflict with state sovereignty, as it infringes on a state's right to exercise control over its own borders and those who reside within them. In legal proceedings immediately following World War II, non-refoulement was viewed as a distinct right which could be abridged under certain circumstances, such as those spelled out in Article 3, Section 2 of the 1951 Convention.
In the 1960s, the European Commission on Human Rights recognized non-refoulement as a subsidiary of prohibitions on torture. As the ban on torture is jus cogens, this linkage rendered the prohibition on refoulement absolute and challenged the legality of refoulement for the purposes of state security. Through court cases (see Soering v. United Kingdom and Chahal v. United Kingdom) and interpretations of various international treaties in the 1980s, the European Commission on Human Rights shifted preference away from preserving state sovereignty and towards protecting persons who might be refouled. This interpretation permitted no abridgments of non-refoulement protections, even if the state was concerned a refugee may be a terrorist or pose other immediate threats to the state.
Following terror attacks in the United States and Europe, states have renewed calls for permitting refoulement in the interest of national security, as repatriation is the most effective method of dispatching refugees thought to present a credible threat. Furthermore, newer treaties typically include specific obligations that prevent refoulement under essentially any circumstances. These factors have led individual states and the European Union to seek ways around non-refoulement protections that balance security and human rights.
Today, the principle of non-refoulement ostensibly protects persons from being expelled from countries that are signatories to the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Convention Relating to the Status of Refugees, or the 1984 Convention Against Torture. This, however, has not prevented certain signatory countries from skirting the international law principle and repatriating or expelling persons into the hands of potential persecutors.
- Article 3 of the 1933 Convention relating to the International Status of Refugees contained the first mention of non-refoulement in international law and prevented party states from expelling legally-residing refugees or turning away refugees at the borders of their home countries. This treaty was ratified by only a few states and gained little traction in international law.
- The principle of "non-refoulement" was officially enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees. Article 33 contains the following two paragraphs that define the prohibition of the expulsion or return of a refugee:
- "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."
- "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 1967 Protocol Relating to the Status of Refugees modified Article 33 and created a more inclusive legal standard for defining refugees as:
owing to well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
- Article III of the Asian-African Legal Consultative Organization's (then known as the Asian-African Legal Consultative Committee) 1996 Principles Concerning Treatment of Refugees states:
No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory.
- Article II(3) of the Organization for African Unity's Convention Governing the Specific Aspects of Refugee Problems in Africa, signed in 1969, makes provisions for asylum seekers fleeing war, colonial dominance, or social unrest.
- Article 22(8) of the 1969 American Convention on Human Rights establishes danger to an asylum seeker's "right to life or personal freedom" as the threshold for non-refoulement among American states.
- Article 3 of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment held that non-refoulement emanated from larger protections from torture and inhumane treatment. This represented a major shift, as these protections, and therefore non-refoulement provisions, are considered absolute rights.
- Per Article 3(2) of the 1957 European Convention on Extradition and Article 4(5) of the 1981 Inter-American Convention on Extradition, the principle of non-refoulement also applies to extradition cases in which the person believes they will be tried or biased based specifically on one of the protected factors.
Though the principle of non-refoulement is a non-negotiable aspect of international law, states have interpreted Article 33 of the 1951 Convention in various ways, and they have constructed their legal responses to asylum seeker in corresponding manners. The four most common interpretations are:
- Strict:This interpretation holds that non-refoulement laws only apply to asylum seekers who have physically entered a state's borders. States using this interpretation often enact policies and procedures designed to block asylum seekers from reaching their borders.
- Strict, with a narrow reading: This interpretation holds that only certain refugees are legally entitled to non-refoulement protection. If the country receiving an asylum seeker does not find that their "life or freedom would be threatened" by refoulement, this interpretation holds that they can be legitimately returned to their country of origin.
- Collectivist: This approach involves international systems designed to process the asylum claim in the country in which a person initially seek asylum and redistribute them among other countries. This approach relies on the logic that Article 33 does not include language requiring states receiving asylum seekers to permit them to remain permanently, only an obligation not to send them back to a region in which they face likely danger. Refugee relocation agreements between countries must ensure they are not sent back by the new host country. The new host country does not have to be party to the 1951 Convention, however.
- Collectivist, with laws preventing asylum seekers from reaching sovereign borders: This approach is not an interpretation of Article 33, but a way around it. It combines the strict and collectivist approaches. States using this approach establish non-sovereign areas within their borders, primarily at travel hubs. Asylum seekers presenting themselves at such areas are then sent to another country to have their asylum claims processed. As with traditional collectivism, the asylum seeker cannot be sent to a country in which they face likely danger.
Examples of violations
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 Rwandan genocide have been alleged to have violated the non-refoulement 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 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 that is most hotly debated within signatory circles is the interpretation of Article 33 of the 1951 Convention. Interdiction of potential refugee transporting vessels on the high seas has been a common practice by the US 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.
The Australian government has been accused by the UNHCR and more than 50 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. That 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.
- Trevisanut, Dr. Seline (September 1, 2014). "International Law and Practice: The Principle of Non-Refoulement And the De-Territorialization of Border Control at Sea". Leiden Journal of International Law. 27 (3): 661. doi:10.1017/S0922156514000259.
- Vang, Jerry (Summer 2014). "Limitations of the Customary International Principle of Non-refoulement on Non-party States: Thailand Repatriates the Remaining Hmong-Lao Regardless of International Norms". Wisconsin International Law Journal. 32 (2): 355–383.
- 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.CS1 maint: Extra text: authors list (link)
- Bruin, Rene; Wouters, Kees (2003). "Terrorism and the Non-derogability of Non-refoulement". International Journal of Refugee Law. 15.1: 5–29 – via HeinOnline.
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- Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, Martinus Nijhoff Publishers, 1997; p. 147. ISBN 9041104097
- Goodwin-Gill, Guy S. (2014). "The International Law of Refugee Protection". The Oxford Handbook of Refugee and Forced Migration Studies. Oxford University Press. p. 39.
- League of Nations. "Convention of 28 October, 1933 relating to the International Status of Refugees" (PDF). Migration Education. p. 2. Retrieved March 26, 2017.
- United Nations High Commissioner for Refugees. "Convention and Protocol Relating to the Status of Refugees". UNHCR. Retrieved 2017-03-27.
- Cambridge University Press, The Scope and Content of the Principle of Non-Refoulement: Opinion, June 2003, available at: http://www.refworld.org/docid/470a33af0.html [accessed 19 February 2017]
- Rodolfo Marques, Non-refoulement under the Inter-American Human Rights System, London: RLI Working Paper Series, 6 March, 2017, pp. 58-69
- D'Angelo, Ellen F. (January 2009). "Non-Refoulement: The Search for a Consistent Interpretation of Article 33" (PDF). Vanderbilt Journal of Transnational Law. 42 (1): 279. Retrieved 21 February 2017.
- 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.
- "Sri Lankan asylum seekers facing criminal investigation after being handed back by Australian authorities". ABC News.
- "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
- 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)
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