The Principle of Non-refoulement under International Refugee Law

ABSTRACT

This paper focuses on the major problem of refugees and analyses the Principle of Non-refoulement in this regard. The paper focuses on the nature, scope and history of this principle. It also indulges into whether non-refoulement can be treated as a jus cogens norm by going through the criteria that have been laid down by the International Law Commission’s Report on Jus Cogens. The paper also deals with whether the principle casts a strenuous obligation upon states by looking at in the context of the European Union- Turkey Agreement of 2016. The also focuses on India’s approach towards this principle and sees what implications India’s stance has on the Rohingya Muslims, who have fled from Myanmar.

INTRODUCTION

The world is facing several challenges today. From natural challenges to man-made challenges, world leaders have a lot of work to do. Out of these challenges, another challenge that is standing tall is the refugee crisis. War, turmoil, instability and persecution has led to many people fleeing from their countries to other countries, in order to live peaceful lives. This situation is not only problematic for those who are fleeing their nations (refugees), but is also problematic for the countries to which such people flee to. What makes it very different for refugees is that they have a well-founded fear of returning back to their nations .

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One point that must be taken into consideration is that refugees are different from internally displaced persons (IDP). Refugees flee to other countries, i.e., they cross international borders. However, internally displaced people, even though they flee their homes, do not cross international borders. Therefore, internally displaced people will still be under the purview of their nation’s municipal law, while international law plays a major role in the case of refugees.

The UNHCR states that a staggering 79.5 million people were displaced at the end of 2019, with about 26 million of them being refugees . What is even more depressing is that out the total number of people displaced, about 40% of them are children. Another fact that emerges is that 85% of the refugees are in developing countries, which puts even more burden on the governments of these nations.

Turkey is the country which houses the most number of refugees. The number is approximately 3.6 million refugees in Turkey alone . Other countries that house the most number of refugees are Jordan (2.9 million), Colombia (1.7 million), Lebanon (1.4 million), Pakistan (1.4 million) and Germany (1.1 million) .

RIGHTS OF REFUGEES

Refugees are entitled to several rights that have been granted to them through different legal documents. The Universal Declaration of Human Rights (hereinafter referred to as “the UDHR”), the foremost declaration pertaining to human rights, applies to all individuals. Therefore, all the rights granted by the UDHR will apply to refugees. Similarly, the Convention Relating to the Status of Refugees, 1951(hereinafter referred to as the Refugee Convention), A.K.A as the Geneva Convention, plays a major role in bestowing rights upon refugees. The Refugee Convention, which is the most important convention pertaining to refugees, grants several rights in the context of refugeehood. The Refugee Convention is the second convention of its kind, with the first convention being the 1933 convention relating to the International Status of Refugees (hereinafter referred to as the 1933 Convention). A protocol was entered into in 1967, which complements the 1951 Convention. Even the European Convention on Human Rights is applicable to individuals residing in Europe. However, the scope of this paper extends only to one specific right, the Right of Non-refoulement, which is also a principle under international law.

THE PRINCIPLE OF NON-REFOULEMENT

The right of Non-refoulement is a right that grants a person protection from being sent back to a state where they will face torture, cruel or inhumane treatment, punishment or irreparable harm . It simply refers to not sending a person back to the state where they flee from, or sending them to another place where they will face the same trauma again. For example, if an individual flees a country due to religious persecution from a country, the state to which he is requesting for refuge, should not send him back to that state. Hence, this rights gives a corresponding duty to states to not refuse to give protection. This principle extends to those who are asylum-seekers as well, but the paper restricts its scope only to refugee law.

The principle has been believed to be a part of customary international law . It was first emanated in the 1933 Convention under Article 3(2). The convention was entered into by the members of the League of Nations on 28th October, 1933 . The article prevented states from refusing to give refuge to those who sought it at the frontiers of their states . Based on this, the Principle has been enshrined under Article 33 of the Refugee Convention:-

Article 33. Prohibition of Expulsion or Return ('refoulement):-

• 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.

The article also prescribes an exception to this principle. The exception for those individuals who create an apprehension of danger to the security of the country where they are residing. During the drafting stage, it was agreed upon by all the members that giving a person back to where he came from would be, “be tantamount to delivering him into the hands of his persecutors” . The principle does not only apply to recognised refugees, but also to those who have not had their status of formally declared . Under the Refugee Convention, the prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border . From this, one can clearly infer the difference between the scope of the principle under the 1933 Convention and the Refugee Convention. In the 1933 convention, it extended only to non-admission at borders, but in the Refugee Convention, it extended to refugees who have also been given refuge and are residing within the territory of the state.

The principle has also been enshrined under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and under Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance.

CAN THE PRINCIPLE OF NON-REFOULEMENT BE SEEN AS A JUS COGENS NORM?

As aforementioned, Non-refoulement has been touted to be a part of customary international law. However, whether it classifies as a peremptory norm is something that is very ambiguous at this point of time. Before going into whether non-refoulement can qualify as jus cogens, it is important to understand what jus cogens is. Jus cogens refers to the principles of international law that are considered to be so fundamental that they cannot be set aside . A jus cogens norm has been defined as ,” a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Though there is no list which clearly stipulates what is a jus cogens norm and what is not, it is accepted that prohibition of slavery, genocide, etc. are jus cogens norms.

The International Law Commission Report on Jus Cogens (published in 2015) has laid down the following criteria that must be satisfied in order to be called a jus cogens norm:-

1. The norm must be a norm of general international law and must be accepted by the international community as such ;
2. The norm could have arisen as a result of customary international law or as a general principle of law ;
3. In order to be accepted as a jus cogens norm, there must be clear evidence that no derogation is permitted ; and
4. The norm must be accepted as a jus cogens norm by a very large majority of states .

Evidence in the 4th criteria refers to public statements on behalf of states, official publications, government legal opinions, diplomatic correspondence, legislative and administrative acts of states, decisions of municipal and international courts and works by expert bodies of states or international organisations .

The principle of non-refoulement satisfies the first two criteria quite easily. It is a general rule of international law and it is a part of customary international law. Secondly, there is evidence to suggest that the principle of non-refoulement is a jus cogens norm. For example, the report of the international Law Commission itself acknowledges that non-refoulement has been seen as a jus cogens norm by many states. It also refers to the case of Prosecutor Vs. Germain Katanga , a case in which the International Criminal Court noted that “peremptoriness [of the principle of non-refoulement] finds increasing recognition among States” .

As for the last criteria, it is very difficult to establish whether a large majority of nation states have accepted the principle of non-refoulement as a jus cogens norm. Several members of the European Union have accepted refugees in large numbers, but there is no clarity over whether they recognize non-refoulement as a principle of paramount importance.

Hence, one can conclude that non-refoulement satisfies the first three criteria, but there is no clarity over whether it satisfies the fourth criteria, especially in continents like Asia. Therefore, one can conclude that non-refoulement has not yet reached the stage that is required to be treated as a jus cogens norm.

IS THE PRINCIPLE BURDENSOME?

Albeit the principle is in place to safeguard the rights of refugees, it can be argued that it casts a very strenuous obligation, which states must adhere. As aforementioned, many states that are housing refugees are developing countries. Developed countries like the United States of America took a deplorable move in which it capped the number of refugees that it was willing to allow to 50,000 refugees a year . This transfers the burden of taking care of refuges to other states. Having this in mind, the European Union entered into an agreement with Turkey, famously known as the European Union- Turkey Refugee Agreement, in which Turkey agreed to take all refugees who entered into Europe through Turkey (with Greece being the most affected country in this regard) . In return, Turkey received 6 Billion $ from the European Union . The members of the EU also agreed to take one Syrian refugee for each Syrian refugee who was returned back to Turkey . This agreement was entered into in the light of the mass refugee flow into the European Union. This agreement would not have been entered into had all the nations been more than capable and ready to accept refugees. The members of the European Union had to do this in order to reduce the burden of refugees.

The question that arises right now is whether this agreement strikes at the core of the Principle of Non-refoulement. In order to answer this question, one has to examine the treatment of refugees in Turkey, as the principle states that a refugee should not be returned a territory where their “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. However, that goes beyond the scope of this paper.

INDIA AND ITS SITUATION WITH THE ROHINGYAS- IS THE PRINCIPLE BEING VIOLATED?

India’s problems with the Rohingyas has been raging on for a long period of time. Rohingyas are a highly persecuted Muslim minority group in the state of Myanmar. The Rohingyas have been facing systematic persecution in the state of Myanmar for a very long time . Owing to this, rather inevitably, many people started fleeing to Indian and Bangladesh. As of September 2017, the number of Rohingya refugees touched 40,000 . In the light of this, the Indian government decided to deport some of them . In August 2018, the government deported 7 Rohingyas and a family of 5 Rohingyas in 2019 . The Indian government has supported this stance by saying that since India is not a party to the Refugee Convention, the principle would not apply to it . However, since the principle is a part of customary international law, it can be seen as a binding principle.

After the enactment of the Citizenship Amendment Act, 2019 (hereinafter referred to as “the CAA”), India made it equally clear that it would start taking action to deport Rohingyas as they do not fall within the purview of the CAA . This has resulted in severe criticism from different corridors. However, those who are criticising this move must also take into consideration the security of the nature. Had the Indian government been blinded by hatred towards Muslims, then it would have deported large numbers of Rohingyas long ago, not 12 Rohingyas in total. Therefore, when people approach this topic, they must do so with greater care and must also see the security of the nation.

CONCLUSION

The Principle of Non-refoulement is very important. It gives refugees the chance to live life with dignity by preventing states from sending them back to territories where they might have to go through more abuses all over again. This principle is the cornerstone of refugee law, and it has been treated as being sacrosanct. However, the international community must also see whether the principle is being burdensome. Even though the principle does permit states to transfer refugees to those states that do not persecute refugees, it does add a lot of trouble. India’s position with the principle is pretty delicate and whether its actions towards the Rohingyas is right or wrong is certainly something that will come out in the daylight. However, for now, it is undeniable that the Principle of Non-refoulement epitomises the qualities of compassion, humaneness and upholding dignity.