Non refoulement

History

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 matters 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.

Relevant laws

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:

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 1967 Protocol Relating to the Status of Refugees modified Article 33 and created a more inclusive legal standard for defining refugees as:

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:

The United Nations General Assembly’s 1967 Declaration on Territorial Asylum adds the caveat that the asylum seeker must already be inside the country in which he is seeking asylum. It also allows countries to refuse entry to asylum seekers for certain causes, such as the entrance of an unfeasible number of asylum seekers at a given time.

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.

Interpretations of Article 33 of the 1951 Convention

Though the principle of non-refoulement is a non-negotiable aspect of international law, states have interpreted this article in various ways and 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. State’s 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. They 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 of the Principle of Non-Refoulement

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.

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)