Non-refoulement is a principle of international law, which forbids the rendering of a true victim of persecution to his or her 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 certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales.
It is debatable whether non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a person into a jurisdiction, usually his or her home-country, where that person might be again subjected to persecution.
The principle of "refoulement" was officially enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees and is also contained in the 1967 Protocol Relating to the Status of Refugees and Article 3 of the 1984 Convention Against Torture.
Article 33 of the 1951 Convention Relating to the Status of Refugees 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.
Article 3 of the 1984 Convention Against Torture also contains the following two paragraphs that define the prohibition of the expulsion or return of a person where there is a real risk of torture.
- 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.
- 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.
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 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.
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 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 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 of the 1951 Convention Relating to the Status of Refugees. 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.
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.
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