This document discusses the balancing of individual protection under the principle of non-refoulement against considerations of national security. It outlines the core meanings of non-refoulement and national security. The author argues that individual protection should be given priority over national security concerns. A balancing test can be used to ensure both individual protection and national security are considered in an integrated way without ignoring human rights in the name of national security. The document also discusses interpretations of the national security exception under the 1951 Refugee Convention.

1. Individual protection Vs. National
security: A Balancing test concerning
the principle of Non-Rofoulment
Prepared by Shah Arafat Ayatullah
ID:2014220300068
Batch:34th; section:1
southeast university

2. Core meaning of Non-refoluement and
National Security
• Non-refoluement
• French refouler, which means
to drive back or to repel, as of
an enemy who falls to breach
one’s
• Refoulement is a formal
process whereby a lawfully
resident alien may be required
to leave a state, or be forcibly
ejected there from.
• However, states may deny
admission in ways not
obviously amounting to breach
of the Principle.
National Security
• National security is the ability
to preserve the nation's
physical integrity and
territory;
 to maintain its economic
relations with the rest of the
world on reasonable terms;
 to preserve its nature,
institution, and governance
from disruption from outside;
and
 to control its borders.

3. Non-Refoulement vs National Security
• Under the principle of non-refoulement a refugee shall not be
expelled or returned in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on
account of race, religion, nationality, membership of a particular
social group or political opinion. It is the obligation of states both
under customary international law and international instruments
not to send them back.
• However, a refugee may not get the protection under this principle
if there are reasonable grounds that the national security would be
negatively affected. Indeed, it creates two situations.
• The former is connected with the national security interest of the
state and the latter is related to the individual protection.
Which one will be given priority?
Is it the national security or individual protection?
• My standing is in favour of individual protection.

4. Argument in favor of individual
• Furthermore, principle of non-refoulement is a part of
customary international law(article 38 of ICJ).
Therefore, under article 38 of the ICJ statutes states
have the obligations under international law towards
refugees.
• In addition, there are judicial decisions in this regard
which support the view that individual protection
would get priority.
• Some cases are worth mentioning here like,
 Soering v The UK (1989) ,
 Chahal v United Kingdom(1996),
 Ahmed v Austria (1996).

5. Argument in favor of individual(cont.)
In the aforesaid situations my recommendations are:
i) Individual protection should get priority over national
security. That means individual protection should never be
neglected at any cost.
ii) Individual protection should be protected in such a way so
that national security must not be hampered.
iii) Balancing test should be used: Individual Protection and
national security are supplementary and complementary.
Both of them should be ensured in an integrated way.
iv) Doctrine of bias and uncertainty should be ignored: Only
national security should never get priority. Human rights
should not be ignored in the name of national security.

6. Argument in favor of individual(cont.)
v) Under the balancing test refugees should be given
protection at least for temporary period: By using
balancing test the persons who are victim of persecution
can be given protection for temporary period.
vi) Principle of Burden Sharing can be used to solve the
problem: By using burden sharing principle, balancing test
can be ensured. Under this principle if they are protected
for temporary period, they can be shifted in another
country with the assistance of UNHCR later on.
vii) Principle of Relocation can be used in this regard: By
using this principle if they are given protection, then they
can be relocated later on. It is another way of implementing
balancing test.

7. National security
• Lauterpacht and Bethlehem have commented on the interpretation
and application of the national security exception in Article 33(2).
• Firstly, they state that the nature of the exception is clearly
prospective – future danger is what is material, as opposed to the
individual’s past conduct.
• The exception does not deal with the prospect of danger to the
security of other countries or the international community as a
whole Lauterpacht and Bethlehem, 2003, p. 135.
• According to this interpretation inconsistent with the humanitarian
and fundamental nature of the prohibition against refoulement and
supported by developments on the application of non-refoulement
as an absolute right in human rights law, regardless of the conduct
of the individual

8. National security(Cont.)
• However, in the famous Suresh-case, the
Canadian Supreme Court rejects this
approach, stating that the national security of
one state is dependent on the security of
other states. Suresh v Canada, para. 87.
• Although, according to the wording of the
exception in Article 33(2) there needs to be a
danger to the country of refuge.

9. National security(Cont.)
• Article 33(2) does not specify what kind of acts that would
fall into the scope of the national security exception or
what standard of proof is sufficient.The only limit to the
scope of the provision in the text of the Convention is that
there must be ‘reasonable grounds’.
• According to Farmer, this opens for a broad application of
the exception.
• However, Lauterpacht and Bethlehem mean that states can
exercise only a limited margin of appreciation in these
cases. States cannot act arbitrarily or capriciously, as there
must be reasonable grounds for regarding the refugee as a
danger to the security of the country of refuge.

10. National security(Cont.)
• In general, there must be a high threshold for the
application of the exception in Article 33(2), due
to the fundamental character of non-refoulement
as well as the humanitarian character of the 1951
Refugee Convention.
• The UNHCR has commented that, considering the
serious consequences of returning a refugee to a
country where he is in danger of persecution, the
exception in Article 33(2) must be applied with
great caution. It is also necessary to consider all
the circumstances of the case.

11. Conclusion
• This conclusion is remarkable as it essentially
authorizes states to apply a balancing act in cases
where a refugee is considered a threat to national
security.
• However, according to Lauterpacht and
Bethlehem, states must comply strictly with the
prohibition on refoulement in cases where the
refugee is risking exposure to torture or cruel,
inhuman or degrading treatment or any risk
within the scope of any other non-derogable
human right.