Assignment OnTHE NON-REFOULEMENT PRINCIPLE:               1
Introduction:Non-refoulement non-refoulement is a principle of the international law, i.e. ofcustomary and trucial Law of ...
One of the grey areas of law most hotly debated within signatory circles is theinterpretation of Article 33. Interdiction ...
of important principles relating to asylum, including the principle of non-refoulement. According to Article II (3):"No pe...
principle of non-refoulement has become a norm of customary international law.This view is based on a consistent State pra...
refugees until their status has been determined. Without such a rule, the principleof non-refoulement would not provide ef...
directly to persecution provided they have not yet reached or crossed its borders.This claim is clearly inconsistent with ...
Non-refoulement and the safe third country concept:The following paragraphs set out some basic considerations in view of t...
this principle, including whether or not a refugee has to be found on the territory ofState A, or can merely be attempting...
original document. For our purposes Article 33 of the Convention is of primaryrelevance. The first paragraph of this artic...
be followed if national security is at stake. The article does not mention refugeesspecifically, and only refers to aliens...
some respects. The European Commission on Human Rights has used Article 3 inorder to deal with the non-refoulement issue, ...
attained the status of a customary rule. In the following chapter, I will attempt toelucidate state practice in this area,...
one of the founding principles of refugee law? Although this is the picture paintedby the previous chapter, I will argue h...
behaviour of the states seeking to erode or breach the non-refoulement principle. Innone of these cases did a state come o...
Defining the Parameters of Non-RefoulementHaving therefore concluded that we have a customary rule, we must be able tostat...
in extreme cases of necessity. But again we find ourselves in uncertain territory.How much of a threat to public order or ...
one commentator has noted, the Refugee Convention gives no indication of whattypes of crime legitimate the invocation of A...
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Sayef Amin
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  2. 2. Introduction:Non-refoulement non-refoulement is a principle of the international law, i.e. ofcustomary and trucial Law of Nations which forbids the rendering a true victim ofpersecution to their persecutor; persecutor generally referring to a state-actor(country/government).Non-refoulement is a key facet of refugee law that concerns the protection ofrefugees from being returned to places where their lives or freedoms could bethreatened. 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 ofpersons, non-refoulement refers to the generic repatriation of people, generallyrefugees into war zones and other disaster areas. Non-refoulement is a jus cogens(peremptory norm) of international law that forbids the expulsion of a refugee intoan area, usually their home-country, where the person might be again subjected topersecution.History:The principle of "refoulement" was officially enshrined in the 1951 ConventionRelating to the Status of Refugees and is also contained in the 1967 Protocol andArt 3 of the 1984 Torture Convention. The principle of non-refoulement arises outof an international collective memory of the failure of nations during World War IIto provide a safe haven to refugees fleeing certain genocide at the hands of theNazi regime. Today, the principle of non-refoulement ostensibly protectsrecognized refugees and asylum seekers from being expelled from countries thatare signatories to the 1951 Convention or 1967 Protocol. This has however notprevented certain signatory countries from skirting the international law principleand repatriating or expelling bona fide refugees into the hands of potentialpersecutors.Tanzanias actions during the 1994 genocide in Rwanda have been alleged to haveviolated the nonrefoulement principle. During the height of the crisis when therefugee flows rose to the level of a "mass exodus," the Tanzanian governmentclosed its borders to a group of more than 50,000 Rwandan refugees who werefleeing genocidal violence. In 1996, before Rwanda had reached an appropriatelevel of stability, around 500,000 refugees were returned to Rwanda from Zaire. 2
  3. 3. One of the grey areas of law most hotly debated within signatory circles is theinterpretation of Article 33. Interdiction of potential refugee transporting vessels onthe 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 countryor simply within the power of a country to trigger the right against refoulement.Since 1951, 140 states have signed the Convention, officially recognizing thebinding principle of non-refoulement expressed therein.Legal basis of non-refoulementNon-refoulement has been defined in a number of international refugeeinstruments, both at the universal and regional levels.At the universal level themost important provision in this respect is Article 33 (1) of the 1951 Conventionrelating to the Status of Refugees, which states that: "No Contracting State shallexpel or return (refouler) a refugee in any manner whatsoever to the frontiers ofterritories where his life or freedom would be threatened on account of his race,religion, nationality, membership of a particular social group or political opinion."This provision constitutes one of the basic Articles of the 1951 Convention, towhich no reservations are permitted. It is also an obligation under the 1967Protocol by virtue of Article I (1) of that instrument. Unlike some provisions of theConvention, its application is not dependent on the lawful residence of a refugee inthe territory of a Contracting State. As to the words "where his life or freedomwould be threatened", it appears from the travaux préparatoires that they were notintended to lay down a stricter criterion than the words "well-founded fear ofpersecution" figuring in the definition of the term "refugee" in Article 1 A (2). Thedifferent wording was introduced for another reason, namely to make it clear thatthe principle of non-refoulement applies not only in respect of the country of originbut to any country where a person has reason to fear persecution.Also at the universal level, mention should be made of Article 3 (1) of the UNDeclaration on Territorial Asylum unanimously adopted by the General Assemblyin 1967 [res. 2312 (XXII)]. "No person referred to in Article 1, paragraph 1, shallbe subjected to measures such as rejection at the frontier or, if he has alreadyentered the territory in which he seeks asylum, expulsion or compulsory return toany State where he may be subjected to persecution."At the regional level the OAU Convention Governing the Specific Aspects ofRefugee Problems in Africa of 1969 gives expression in binding form to a number 3
  4. 4. of important principles relating to asylum, including the principle of non-refoulement. According to Article II (3):"No person shall be subjected by a Member State to measures such as rejection atthe frontier, return or expulsion, which would compel him to return to or remain ina territory where his life, physical integrity or liberty would be threatened for thereasons set out in Article I, paragraphs 1 and 2." Again, Article 22 (8) of theAmerican Human Rights Convention adopted in November 1969 provides that:"In no case may an alien be deported or returned to a country, regardless ofwhether or not it is his country of origin, if in that country his right to life orpersonal freedom is in danger of being violated because of his race, nationality,religion, social status or political opinions."In the Resolution on Asylum to Personsin Danger of Persecution, adopted by the Committee of Ministers of the Council ofEurope on 29 June 1967, it is recommended that member governments should beguided by the following principles: They should act in a particularly liberal andhumanitarian spirit in relation to persons who seek asylum on their territory.They should, in the same spirit, ensure that no one shall be subjected to refusal ofadmission at the frontier, rejection, expulsion or any other measure which wouldhave the result of compelling him to return to, or remain in, a territory where hewould be in danger of persecution for reasons of race, religion, nationality,membership of a particular social group or political opinion."Finally, Article III (3) of the Principles concerning the Treatment of Refugeesadopted by the Asian-African Legal Consultative Committee at its Eighth Sessionin Bangkok in 1966, states that:"No one seeking asylum in accordance with these Principles should, except foroverriding reasons of national security or safeguarding the populations, besubjected to measures such as rejection at the frontier, return or expulsion whichwould result in compelling him to return to or remain in a territory if there is awell-founded fear of persecution endangering his life, physical integrity or libertyin that territory."In addition to statements in the above international instruments, the principle ofnon-refoulement has also found expression in the constitutions and/or ordinarylegislation of a number of States. Because of its wide acceptance, it is UNHCRsconsidered view, supported by jurisprudence and the work of jurists, that the 4
  5. 5. principle of non-refoulement has become a norm of customary international law.This view is based on a consistent State practice combined with a recognition onthe part of States that the principle has a normative character. As outlined above,the principle has been incorporated in international treaties adopted at the universaland regional levels to which a large number of States have now become parties.Moreover, the principle has also been systematically reaffirmed in Conclusions ofthe Executive Committee and in resolutions adopted by the General Assembly,thus demonstrating international consensus in this respect and providing importantguidelines for the interpretation of the aforementioned provisions.International human rights law provides additional forms of protection in this area.Article 3 of the 1984 UN Convention against Torture stipulates that no State Partyshall expel, return ("refouler") or extradite a person to another State where thereare substantial grounds for believing that he or she would be in danger of beingsubjected to torture. Similarly, Art. 7 of the International Covenant on Civil andPolitical Rights has been interpreted as prohibiting the return of persons to placeswhere torture or persecution is feared. In the regional context, Article 3 of theEuropean Convention for the Protection of Human Rights and FundamentalFreedoms has been interpreted by the European Court of Human Rights asimplicitly prohibiting the return of anyone to a place where they would face a "realand substantiated" risk of ill-treatment in breach of the prohibition of torture orinhuman or degrading treatment or punishment. While Art. 33 (2) of the 1951Convention foresees exceptions to the principle of non-refoulement, internationalhuman rights law and most regional refugee instruments set forth an absoluteprohibition, without exceptions of any sort.Beneficiaries:In the case of persons who have been formally recognised as refugees under the1951 Convention and/or the 1967 Protocol, the observance of the principle of non-refoulement should not normally give rise to any difficulty. In this connection,particular regard should be had to the fact that a determination of refugee status isonly of a declaratory nature. The absence of formal recognition as a refugee doesnot preclude that the person concerned possesses refugee status and is thereforeprotected by the principle of non-refoulement. In fact, respect for the principle ofnon-refoulement requires that asylum applicants be protected against return to aplace where their life or freedom might be threatened until it has been reliablyascertained that such threats would not exist and that, therefore, they are notrefugees. Every refugee is, initially, also an asylum applicant; therefore, to protectrefugees, asylum applicants must be treated on the assumption that they may be 5
  6. 6. refugees until their status has been determined. Without such a rule, the principleof non-refoulement would not provide effective protection for refugees, becauseapplicants might be rejected at the frontier or otherwise returned to persecution onthe grounds that their claim had not been established. That the principle of non-refoulement applies to refugees, irrespective of whether they have been formallyrecognised as such - that is, even before a decision can be made on an applicationfor refugee status - has been specifically acknowledged by the UNHCR ExecutiveCommittee in its Conclusion No. 6 on Non-Refoulement. And indeed, where aspecial procedure for the determination of refugee status under the 1951Convention and the 1967 Protocol exists, the applicant is almost invariablyprotected against refoulement pending a determination of his or her refugee status.There are, however, a number of situations in which the observance of theprinciple of non-refoulement is called for, but where its application may give riseto difficulties. Thus the person concerned may find himself in a State which is nota party to the 1951 Convention or the 1967 Protocol, or which, although a party tothese instruments, has not established a formal procedure for determining refugeestatus. The authorities of the country of asylum may have allowed the refugee toreside there with a normal residence permit or may simply have tolerated his or herpresence and not have found it necessary formally to document his or herrecognition as a refugee. In other cases, the person concerned may have omitted tomake a formal request to be considered a refugee.In situations of this kind it is essential that the principle of non-refoulement bescrupulously observed even though the person concerned has not - or has not yet -been formally documented as a refugee. Again, this flows from the fact that, first,the recognition of a person as a refugee, whether under UNHCRs mandate orunder the 1951 Convention or the 1967 Protocol, is declaratory in nature, and,second, that the principle of non-refoulement is a norm of customary internationallaw.Territorial application:Since the purpose of the principle of non-refoulement is to ensure that refugees areprotected against forcible return to situations of danger it applies both within aStates territory and to rejection at its borders. It also applies outside the territory ofStates. In essence, it is applicable wherever States act.It has been argued that the principle of non-refoulement is not binding on a Stateoutside its own national territory, so that a Government may return refugees 6
  7. 7. directly to persecution provided they have not yet reached or crossed its borders.This claim is clearly inconsistent with the purpose, and is contrary to the spirit, ofthe 1951 Convention and its 1967 Protocol, as well as of international refugee lawgenerally. No such territorial limitation applies, for instance, to UNHCRs mandateto provide international protection to refugees. In fact, UNHCRs position oninterdiction-at-sea is that this is inconsistent with the international refugeeprotection regime, especially since, among those leaving, there may be people whohave concerns about their physical security and safety. There must be a possibilityfor these people to reach safety and have their protection needs assessed and met.Interdiction and compulsory return preclude this.Exceptions to the principle of non-refoulement:While the principle of non-refoulement is basic, it is recognised that there may becertain legitimate exceptions to the principle. Article 33 (2) of the 1951Convention provides that the benefit of the non-refoulement principle may not beclaimed by a refugee whom there are reasonable grounds for regarding as a dangerto the security of the country ... or who, having been convicted by a finaljudgement of a particularly serious crime, constitutes a danger to the community ofthat country. This means in essence that refugees can exceptionally be returned ontwo grounds: (i) in case of threat to the national security of the host country; and(ii) in case their proven criminal nature and record constitute a danger to thecommunity. The various elements of these extreme and exceptional circumstancesneed, however, to be interpreted.With regard to the national security exception (that is, having reasonable groundsfor regarding the person as a danger to the security of the country), while theevaluation of the danger remains within the province of the national authorities; theterm clearly implies a threat of a different kind than a threat to public order oreven to the community. In 1977, the European Court of Justice ruled that theremust be a genuine and sufficiently serious threat to the requirements of publicpolicy affecting one of the fundamental interests of society It follows from statepractice and the Convention travaux preparations that criminal offences withoutany specific national security implications are not to be deemed threats to nationalsecurity, and that national security exceptions to non-refoulement are notappropriate in local or isolated threats to law and order. 7
  8. 8. Non-refoulement and the safe third country concept:The following paragraphs set out some basic considerations in view of theimportance of the safe third country concept in the context of the discussion ofminimum guarantees for asylum procedures in relation to the principle of non-refoulement.One of the problems that may arise in applying the safe third country concept toasylum-seekers is the difficulty of determining whether another country in whichan asylum-seeker can reasonably be expected to request asylum, will, in fact,accept responsibility for examining his or her request and, if appropriate, grantingasylum. UNHCR is aware of a number of instances where asylum-seekers havebeen refused admission and returned to a country through which they had passed,only to be summarily sent onwards from there, without an examination of theirclaim, either to their country of origin or to another, clearly unsafe country. Whereasylum-seekers are returned to third countries, this needs to be implemented withdue regard to the principle of non-refoulement. Without the prior consent and theco-operation of the country to which an asylum-seeker is returned, there is a graverisk that an asylum-seekers claim may not receive a fair hearing there and that arefugee may be sent on, directly or indirectly, to persecution, in violation of theprinciple of non-refoulement and of Article 33 of the 1951 Convention. InUNHCRs view, the proper application of the safe third country concept requiresidentifying a country that will actually accept responsibility for examining theasylum request and hence ensure that refugees and asylum-seekers receivesomewhere the protection they require.THE NON-REFOULEMENT PRINCIPLE:Development of the Principle: The principle of non-refoulement is seen by most in the international law arena,whether governments, non-governmental organizations or commentators, asfundamental to refugee law. Since its expression in the Refugee Convention in1951, it has played a key role in how states deal with refugees and asylum seekers.But what does the principle really involve? An expert in refugee law defines it asthe idea that „no refugee should be returned to any country where he or she islikely to face persecution or torture‟. A hypothetical example could be useful toclarify. At its most basic level, the principle prevents the government of State Afrom returning refugees from State B to State B, where there is a valid concern thatthey could be in danger should they be returned. Debate surrounds many aspects of 8
  9. 9. this principle, including whether or not a refugee has to be found on the territory ofState A, or can merely be attempting to enter, and also what standard should beused to judge what danger warrants not returning the refugee. Prior to the 1930sthis principle did not exist at international law. In order to understand the principleit will be useful to look at the circumstances and reasons surrounding itsdevelopment. During the first half of this century the idea that it wasfundamentally wrong to return refugees to places where they would clearly be indanger was mentioned occasionally by states in agreements or statutes, or wasevident in the practice of some states. Although by 1905 it had been enshrined in aUK statute that refugees with a fear of persecution for political or religious reasonsshould be allowed into the country, it was not until later that the idea of non-refoulement of such people became widely accepted. It was first expressed atinternational law in the 1933 Convention relating to the Status of Refugees which,however, was ratified by very few states.The massive refugee flows produced by the ructions of World War II provided animpetus for a thorough examination of the rules relating to refugees. Prior to thistime states had been very aware of the extent to which consent to rules, especiallyinternational rules, relating to refugees, would impact on their sovereign right todetermine who was allowed to reside within their boundaries. Although manyappeared to have accepted that there was a moral duty to accept refugees, and notreturn them, this was done largely on an ad hoc basis. However, in the first fewyears of its creation, the United Nations showed its concern with the refugee issue.In 1946 the General Assembly passed a resolution stating that refugees should notbe returned when they had „valid objections‟. This concern, prompted largely bythe huge number of refugees in Europe following the war, eventually led to thedrafting of the United Nations Convention Relating to the Status of Refugees,which was signed in 1951.1951 Refugee ConventionThe Convention itself deals with various aspects of law relating to refugees, andremains the primary instrument of refugee law. It was intended to consolidate thevarious international laws and practices impacting on refugees and asylum-seekers.It was also recognized that certain countries bore a much bigger burden than otherswith respect to the refugee flows, therefore it was imperative that an internationalapproach to the problem be taken. The Convention defined who exactly was to beviewed as a refugee, and spelled out what rights these people would have. In 1967,by way of a Protocol, the Convention was amended and signatories were given theopportunity to remove the geographical and temporal restrictions present in the 9
  10. 10. original document. For our purposes Article 33 of the Convention is of primaryrelevance. The first paragraph of this article states that:No Contracting State shall expel or return („refouler‟) a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would bethreatened on account of his race, religion, nationality, membership of a particularsocial group or political opinion. Although this was intended to be an absoluteright, states remained concerned about the erosion of their sovereignty that thiscould create. Therefore a second paragraph was tacked on, providing that the rightof non-refoulement could not be claimed by someone who was seen as a risk to thesecurity of the country, or who had been convicted of a „particularly seriouscrime‟.Since 1951, 137 states have signed the Convention, thereby accepting the principleof non-refoulement expressed therein. However problems have arisen regardingthe interpretation of Article 33. Debate continues to surround the issue of whetheror not a refugee must be inside the state in order for the right to accrue to them. Ifso then states would be perfectly within their rights to turn away asylum-seekers atthe borders or ships at sea. There was also discussion as to whether a refugee hadto meet the strict requirements of the Convention before they could be granted theright of non-refoulement. However, through the work of the United Nations HighCommissioner on Refugees, and general state practice, it has been accepted thatArticle 33 applies to all refugees, whether or not they fit the prescribed definition.Other Instruments:The 1951 Convention was only the first example of non-refoulement beingenshrined in international law. Subsequently numerous treaties and conventions,dealing either directly or indirectly with the rights of refugees, have repeated theprinciple. In some cases it has been a direct transfer of the wording of theConvention, while in others the principle has been broadened somewhat. As theissues of human rights and regional organization continue to gain strength ininternational discussion, these instruments will become increasingly important.They are also extremely relevant as they illustrate the various options open to bothrefugees and states when dealing with problems of non-refoulement.Article 13 of the International Covenant on Civil and Political Rights (ICCPR)states that anyone who is lawfully within the territory of a state shall not beexpelled from that state without due process. However, this rule does not have to 10
  11. 11. be followed if national security is at stake. The article does not mention refugeesspecifically, and only refers to aliens „lawfully‟ within a state. Therefore thearticle‟s application is somewhat limited. It is important, though, in that it specifieswhat action must be taken before anyone can be forcibly expelled. Article 7 of theICCPR is also relevant as it protects against torture. The Human Rights Committeehas taken this provision into account when dealing with cases of expulsion andextradition.The relationship between torture and refugees is even more relevant when theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment is considered. Article 3(1) of this Convention provides that „no StateParty shall expel, return ("refouler") or extradite a person to another State wherethere are substantial grounds for believing that he would be in danger of beingsubjected to torture‟. The article also provides that authorities must look at whetherthere is a consistent pattern of serious human rights violations in the country inquestion. As one writer has pointed out, any state returning refugees to a statewhere torture is being practiced would become an accomplice to the crime oftorture. Article 3(1) provides broader protection than the 1951 Convention in that itis an absolute right; however, its effect is restricted in that it only applies tosituations involving torture.On a regional level, Africa is seen as leading the pack with regard to refugeeprotection by virtue of the Organization of African Unity Convention Governingthe Specific Aspects of Refugee Problems in Africa. The principle of non-refoulement is enshrined in Article 2(3) of this Convention. The principle is not aslimited as its equivalent in the UN Convention. There is no requirement that therebe a „fear of persecution‟, and the five reasons for leaving the previous state aregreatly expanded. Furthermore, there are no situations in which a breach of the rulewill be accepted. Refugee crises on the African continent are common; therefore itwas essential that there was a convention which applied specifically to Africa. It isinteresting to note that the OAU Convention, unlike many other instruments,explicitly recognizes that particular countries will have to call for help when theyare over-burdened with refugees, and it imposes a duty on the other states to assist.Europe has also been a source of important agreements regarding refugees. Article3 of the European Convention on Human Rights prohibits torture or other cruel,inhumane or degrading treatment, and therefore provides similar protection forrefugees as the Torture Convention. However, the European Convention differs in 11
  12. 12. some respects. The European Commission on Human Rights has used Article 3 inorder to deal with the non-refoulement issue, which is not itself specificallymentioned in the Convention. Also, the right which the Convention creates (to beprotected from torture) is absolute and non-derogable, as is the right to beprotected from refoulement in the OAU Convention.There have also been several European Union instruments dealing specifically withthe problem of asylum and refugee flows. One example is the Council of Europe‟sResolution on Minimum Guarantees for Asylum Procedures 1995. Article II (1)provides that the member state‟s asylum procedures will fully comply with theRefugee Convention 1951, and especially with the non-refoulement provision.Furthermore, Article II (2) states that a potential refugee will not be expelled untila decision on their status has been made. Despite the abundance of agreementsdealing with refugees produced by the EU, many commentators remain concernedabout the direction Europe is taking with regard to their international duties.Another regional agreement dealing with refugees is the American Convention onHuman Rights, which in Article 22(8) deals with non-refoulement. The articlestates that „in no case may an alien be deported or returned to a country, regardlessof whether or not it is his country of origin, if in that country his right to life orpersonal freedom is in danger of being violated because of his race, nationality,religion, social status or political opinions‟. This provision seems closest to the UNConvention in that it gives specific reasons why the „alien‟ would be in dangerwhen returned. Although the provision itself does not state that there are situationsin which the rule can be breached, Article 27 allows derogation in certaincircumstances of war or emergency. It has been suggested that this provision couldpossibly be interpreted to allow derogation during massive refugee crises, whichwould seem to defeat the purpose of the provision.The non-refoulement principle has clearly undergone substantial developmentsince its emergence as a vague morality-based rule. Not only is it described as thefoundation of the foremost international legal instrument relating to refugees, but ithas also been transplanted into other treaties. Although this indicates theimportance of non-refoulement internationally, its expression in so many differentways and in so many different instruments, also serves to undermine itseffectiveness. As things currently stand, refugees are in a position to shop aroundto see which state has the most obliging refugee laws and in particular the widestinterpretation of their non-refoulement obligations. This problem, as well as otherscaused by the differing definitions of non-refoulement in the various instruments,may be overcome if it could be shown that the non-refoulement principle had 12
  13. 13. attained the status of a customary rule. In the following chapter, I will attempt toelucidate state practice in this area, before moving on to reach some solidconclusions about the existence and exact parameters of any customary non-refoulement rule.STATE PRACTICE At the level of international law, it must be shown that the practice of states isfairly uniform and consistent in order for there to be a customary rule. Therefore,in order to establish whether or not the non-refoulement principle has customarystatus we must look at examples of where states have had to deal with refugeeissues, specifically cases involving refoulement. This will also highlight some ofthe key challenges which face the principle of non-refoulement today, both from arefugee and state perspective. For the purposes of this analysis it is useful to dividestate practice into two groups; the first looks at how states react to mass influxes ofrefugees, while the second is concerned with the individual determinationprocedures of states on a day-to-day basis. I will look not at every state, but ratherat a few examples which have raised important issues for the law relating torefugees.Situations of Mass Influx:The problem of huge numbers of refugees pouring out of a country or countries atone time, usually as a result of war or ethnic cleansing, is not a new one. Indeed itwas the major refugee crises of WWII which prompted the internationalcommunity to deal with the refugee issue by way of the 1951 Refugee Convention.These crises usually make front-page news, and often lead to changes in the socialor ethnic demographic of a country or region. They also place states in a verydifficult position. They are faced with a problem which they are usually bound bylaw to deal with. Often, however, they are either financially or socially unable todo so. In this section I will look at three examples of such crises; the exodus ofRwandan refugees, Liberian ships fleeing civil conflict, and the Macedonianreaction to large numbers of Kosovo‟s spilling over the border as a result of ethniccleansing.IMPACT OF STATE PRACTICE ON NON-REFOULEMENT:We have seen in our examination of state practice that there are many examples ofthe non-refoulement principle being breached, or at the very least, endangered. Sodoes this mean that states no longer adhere to the non-refoulement principle? Hasthe change in attitude towards asylum-seekers been so severe as to make redundant 13
  14. 14. one of the founding principles of refugee law? Although this is the picture paintedby the previous chapter, I will argue here that this is not in fact the case. The non-refoulement principle is being increasingly breached, but a breach alone does notrob it of its character as international law. Furthermore the way in which thecountries above have dealt with the principle illustrate that it does have the statusof customary international law. However, what is equally clear from the examplesis that in order for the principle to be of practical use, the parameters of itsapplicability need to be defined.A General customary rule:It is clearly of grave importance to prove that non-refoulement has gained thestatus of custom. If we can show we have a customary rule then the problemscaused by inconsistent implementation of this principle become less significant.Numerous commentators have examined the principle of non-refoulement toestablish whether it is now custom. Their results have been mixed. ProfessorGoodwin-Gill, after a detailed analysis of arguments for and against, reached theconclusion that “there is substantial, if not conclusive authority that the principle isbinding on all states, independently of specific assent”. His view seems to havebeen accepted by many commentators since then. Furthermore, the United NationsHigh Commissioner on Refugees believes that non-refoulement has gainedcustomary status, and may even be jus cogens. Also, in 1954 when negotiating theConvention on the Status of Stateless Persons, the parties did not find it necessaryto include a non-refoulement provision as they saw Article 33 as a „generallyaccepted principle‟. However, although many acknowledge that the non-refoulement principle is at least in part accepted as custom, concerns remain aboutthe exact parameters of this rule. This concern is a common one. Boed points outthat although states may have a duty to accept refugees in general, the rules may bedifferent in respect of a mass influx. Other writers have concluded that althoughthere is a customary norm that states must provide at least temporary safe-havenfor refugees, there is no clear framework for how this rule is to be applied.Having just examined some examples of state practice in this area, and theopinions of academics, we are in a fairly good position to ascertain whether or notnon-refoulement has customary status. On the face of it the state practice examinedin Chapter III is evidence of a uniform disrespect for the non-refoulementprinciple. However, two further factors must be considered. Firstly, only breachesof the rule were examined, to order to illustrate fully the problems facing the non-refoulement principle. Secondly, after taking a closer look at the examples it is stillarguable that the principle is custom. This becomes clear when one looks at the 14
  15. 15. behaviour of the states seeking to erode or breach the non-refoulement principle. Innone of these cases did a state come outright and say „we have no duty under anycircumstances to accept refugees‟. Instead they said, „we are unable to accept theseparticular refugees because…‟. The fact that they offered justifications for theiractions supports the argument that they knew what they were doing was in breachof international law.Firstly, we have the mass influx example. All the states involved in closing bordersor turning back ships gave some reasons for their actions. Tanzania, for example,cited national security, regional tension and environmental damage as reasons whyit could accept no more refugees. Even the Tampa incident saw Australia providingat least some justifications for its actions. Early on in the crisis Australian PrimeMinister stated that “our capacity to take unauthorised arrivals is at breakingpoint". Secondly, those countries who have implemented restrictive policiestowards asylum-seekers have never attempted to completely rebut their non-refoulement obligations. On the contrary they continue to reinforce the importanceof the principle, as this statement by the US delegate to a 1998 UNHCR meetingillustrates:We underscore the fundamental importance of the principle of non-refoulement,which prohibits the expulsion and return of refugees to countries or territorieswhere their lives or freedom would be threatened.But to return to the Tampa example for a moment, there was never any mention inthe initial discussions of a „duty‟ on Australia to take in the refugees. There were,of course, suggestions that the nation had a humanitarian obligation to those on theship, but a reading of the news reports would suggest that there was no legalobligation on Australia. Even the UNHCR was quoted as saying that the legalsituation surrounding the boat people was unclear. Taking this into account it isdifficult to agree with the UNHCR‟s view that non-refoulement has reached thelevel of jus cogens. Rules such as the law against genocide have this status, as theyare seen as „fundamental‟, „inalienable‟ and „inherent‟ to the international legalsystem. The increasing violations of non-refoulement, and the unclear nature of therule, undermine its claim to be a peremptory norm. However, this does notnecessarily mean that there is no customary principle of non-refoulement. It issimply evidence of the fact that the parameters of the rule need clarification. 15
  16. 16. Defining the Parameters of Non-RefoulementHaving therefore concluded that we have a customary rule, we must be able tostate clearly and in a way that can be practicably applied, what the rule requires.This is where the international community is currently running into problems.Previously, when the refugee numbers were fairly low and situations of massinflux less common, there was less pressure on states to press the limits of the rule.Today, however, with domestic and foreign policy factors forcing states to re-evaluate their asylum laws, the principle of non-refoulement is finding itself beingreviewed and in some circumstances, eroded. It is necessary, therefore, to highlightwhat the exact parameters of the rule are, so that we are clear exactly when and inwhat way the rule comes into play. The situations discussed in Chapter III illustratefour of the current debates which surround the parameters of non-refoulement;debates which must be settled if we are to have a coherent system of asylum law.Justifications and ExceptionsAs was mentioned earlier, states often have very good reasons for breaching thenon-refoulement principle. One can hardly expect, for example, a small state withlimited resources, which is already coping with large numbers of refugees, toaccept on its own another mass influx. The states discussed in Chapter III all gavejustifications for why they simply could not accept any more refugees, or why theyhad to cut down on the numbers they were accepting. Furthermore, we must alsoaccept the fact that states need to hold discretion to exclude certain persons frominvoking the non-refoulement principle. However, what is of main concern is thatthese justifications and exceptions are in danger of being stretched so far that theybegin to make the principle itself redundant.[Firstly, let us look at what justifications and exceptions are clearly prescribed byinternational law. As was discussed when we looked at the United States‟interpretation of exceptions, Arts 33 and 1(F) of the Refugee Convention providethat persons guilty of certain crimes or who pose a „danger to the security of thecountry‟ cannot claim the benefit of the non-refoulement principle. A state wouldtherefore be justified in returning such an individual to the country from whichthey came. But what other justifications are legally valid? Professor Goodwin-Gillasserts that „national security and public order have long been recognised aspotential justifications for derogation‟. Also the ILC Draft Articles on StateResponsibility provide that a breach of an international law obligation is justified 16
  17. 17. in extreme cases of necessity. But again we find ourselves in uncertain territory.How much of a threat to public order or national security is required? What wouldbe classed as an extreme case of necessity? The „necessity‟ justification is a usefulone to illustrate the importance of circumscribing limits to exceptions andjustifications.ILC Draft Article 33 requires that the situation (in our case, refugee influx) mustendanger an „essential interest‟ of the State and place it in „grave and imminentperil‟. Only then can a state invoke necessity as a justification. Roman Boed hasconsidered in detail the impact of Draft Article 33 on the non-refoulementprinciple, particularly in cases of mass influx. When considering the element of„essential interest‟ he considered that internal stability, which could be endangered,as in Macedonia‟s case, by a large influx of persons of a certain ethnicity, wouldfall into the category. Other „essential interests‟ mentioned were economic stabilityand environmental protection. He noted, however, that whether something was an„essential interest‟ would have to be determined on a case by case basis. Boed wenton to consider the ramifications of „grave and imminent peril‟, concluding that thiselement is also „fact-specific‟.So is this a good way to provide states with a „safety valve‟ should the pressure onthem become to much to bear? I would say that it is. The test applied is a fairlystrict one. „Grave and imminent peril‟ implies a rather serious danger. It would behard to imagine that the Australian government could have justified the refusal ofthe Tampa on this basis. Furthermore, it is useful that the test is set out clearly,with commentary provided as to the scope of the article. The fact that bothelements of the test are dependent very much on the particular fact situation couldbe seen to leave too much room for movement. However, it would be impossible toenvisage every possible circumstance which would constitute „grave and imminentperil‟, for example. Obviously it must be required that any claim of necessity bemade in good faith, and not simply to avoid the financial burden or politicalbacklash which acceptance of refugees may create. This test appears to strike areasonable balance, so as to ensure that refugees are protected while not imposingtoo harsh a responsibility on those states accepting them.Moving on to look at the exceptions to the non-refoulement principle, there is aconcern that even though they are set out in the Convention, they still lack clarity.Therefore there is a danger that they could be abused by states in order tocircumvent their obligations. It is arguable that the United States comesdangerously close to doing this through the enactment of the IIRAIRA. Theproblem is that the provisions themselves leave wide room for interpretation. As 17
  18. 18. one commentator has noted, the Refugee Convention gives no indication of whattypes of crime legitimate the invocation of Art 33(2). The recent trend of asylum-seekers being linked with criminal activity makes this issue even more important.To quote from a letter to the editor of the Sydney Morning Herald during theTampa crisis, "Those boat people are not illegal immigrants, nor refugees, allegedor otherwise. They are pirates, hijackers and thieves".Although this was solely theopinion of a member of the public, official rhetoric also focused on the criminalnature of the asylum-seekers on board the Tampa. This example of pre-judgingrefugees in order to gain support for a political decision should be of majorconcern to the international community.To return to the situation in the United States, the approach taken by the courts andthe legislature through the IIRAIRA is also concerning. As Kathleen Keller pointsout, the way in which the system now works, with a list of crimes being specifiedas causing danger to the security of the country, means that there is no balancing ofthe crime with the risk that the refugee could be persecuted if returned. This meansthere can be a real danger that the non-refoulement principle could be repeatedlybreached as a result of this rule. It would therefore seem that the US has in factgone too far, and could be said to be acting contrary to their internationalobligations. On the other hand, however, states obviously have an interest inprotecting their citizens. The exceptions were purposely included in the RefugeeConvention to give both states and refugees protection. However, in order to dothis it appears that the exceptions need to be clarified.Any clarification of these exceptions which takes place in the current politicalclimate is likely to be influenced by the terrorism issue. As was discussed earlier,terrorism and refugees are often seen as intertwined issues. Obviously there couldbe concerns that persons applying for refugee status who have fled a state knownfor its use of terrorism, such as a Palestinian, could be in some way linked toterrorism and could therefore be a danger to the community. This indeed appears tohave been the approach taken by the US in implementing its anti-terroristprovision, which entirely excludes all members of the Palestinian LiberationOrganisation from applying for refugee status. It has been argued, however, thatthis attempt to protect the United States from terrorists goes too far, and increasesthe danger of the non-refoulement provision being breached. It therefore seemsnecessary to consider carefully ways in which any clarification of the exceptions tonon-refoulement can adequately protect refugee rights while also protecting thehost-state‟s population from terrorist attacks. 18