Non-refoulement


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.

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 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 33, 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 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

Interpretations

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:

Examples of violations

's forcible repatriation of 45,000 Cambodian refugees at Prasat Preah Vihear, on, 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 Rwandan genocide in 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, as well as 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.
In 2014, the Australian Parliament passed the Migration and Maritime Powers Legislation Amendment Act 2014. That Act provides that "for the purposes of removal from Australia of an unlawful non-citizen, Australia’s non-refoulement obligations are irrelevant".
In 2017, Dina Ali Lasloom was forced back to Saudi Arabia with the cooperation of the government of the Philippines.
In 2018 Matteo Salvini allegedly breached its obligation of non-refoulement by refusing to rescue 93 migrants fleeing Libya and consequently organising a "privatised push-back" that is sending back migrants using merchant ships as proxy; which in this case resulted in the migrants returning to the port of Misurata in Libya where they were beaten, tortured and in same case killed.
In 2019, South Korea deported two North Koreans back to North Korea, on claims that they had committed murder. The move was condemned by human rights activists as the two would likely face execution upon their return.

Literature