AN APPRAISAL OF THE CONTENTS OF THE PRINCIPLE OF NON-REFOULMENT UNDER INTERNATIONAL LAW

Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: ABDULWASIU MOHAMMED

August 22, 2023
10:27 am

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Non-refoulement refers to the prohibition of the practice of returning refugees or asylum seekers to the country they came out from, or where they are liable to be subjected to persecution or other unfavourable conditions, on the basis of their race, ethnicity, religion, nationality, social or political affiliations, etc. This not only involves the direct, forceful or forcible return of such persons but also any indirect or connected measures or actions which will have the same effect which the principle seeks to forbid. Hence it guarantees that no person should be returned to a place or country where they would face persecution, torture, inhuman, cruel or degrading treatment or other serious human rights violations. It prohibits states from removing such persons from their jurisdiction or effective control to other places where there are reasonable reasons to believe that they’re likely to suffer these things.

The principle of “non-refoulement” was officially enshrined in the 1951 Convention Relating to the Status of Refugees. Article 33 of the 1951 Convention provides thus:

“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 1967 Protocol Relating to the Status of Refugees further provided a modification to the provisions of Article 33 thereby creating a more inclusive legal yardstick for defining a refugee as will later be examined in this essay.

Several international and regional instruments have since recognised the principle of non-refoulement including the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,[1]the 1969 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa,[2] the 1969 American Convention on Human Rights,[3] the 1957 European Convention on Extradition,[4] the 1981 Inter-American Convention on Extradition,[5] the 1981 African Charter of Human and Peoples’ Rights,[6] etc. [7]

The need to protect refugees has also led to the establishment of the United Nations High Commissioner for Refugees post World War 2.

THE CONTENTS OF THE PRINCIPLE OF NON-REFOULEMENT

It is pertinent, in exploring the content of the principle of non-refoulement, to examine the principal international document providing for same, i.e., the 1951 Refugee Convention[8] as well as make an analysis of its provisions. This is expedient because the Convention serves as a reference document for subsequent treaties and they contain essentially similar provisions with it.

Article 33 of the Convention provides:

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.

A careful perusal of the above provision will reveal the need to examine its various components viz:[9]

a. Parties to the Convention (Contracting State)

b. Prohibited Act or Conduct

c. Persons protected

d. Place to which refoulement is prohibited.

PARTIES TO THE CONVENTION: Noteworthy is the fact that the 1951 Convention only binds parties to it. Hence a state not being a party to the treaty cannot be bound by it. However, where a state, not being a party to the 1951 Convention, is a party to the 1967 Protocol which amends the 1951 Convention, the provisions of the 1951 Convention particularly those relating to non-refoulement will bind such states.[10]

It is therefore pertinent to examine persons or authorities whose actions will be regarded as State actions. Lauterpacht et al[11] in explaining this made reference to the provisions of the Articles on State Responsibility adopted by the International Law Commission (ILC) of the United Nations.[12](hereinafter referred to as the “State Responsibility Articles” or “SRA”). Article 4 of the SRA provides:

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

The above provisions therefore suggests that an action need not be carried out by the principal or central authority figure in a State, where such an act or conduct is engaged in by the organs of the state, international law and practice regards same as having been done by the State, irrespective of the arm organ or component of the government it may be, so far the act was done in their official capacity.[13] The International Court of Justice has expounded these provisions in the following words:

According to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule … is of a customary character.[14]

Furthermore Article 5 of the SRA provides that,

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

This provision further broadens the scope of a State’s responsibility by making it liable for conducts of a person or an entity, not being an organ of the State, but is vested with the power or authority to exercise certain aspects of governmental authority where such act is done in the prescribed capacity.[15]

In addition, Article 6 of the SRA provides that the conduct of an organ placed at the disposal of a State by another State shall be deemed an act of the former State, if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.[16]

Hence having established that a state can act through any of the above persons, organs or authorities are precluded from the act of refoulement under the 1951 Convention.

It is important to state that a State’s responsibility for its own conduct as broadly discussed above is not limited to those occurring in its territory. It has been opined that the yardstick to be employed should be whether such conduct can be attributed to such state or whether same occurred in such place which can be described as being under the control of the State.[17] This will however be judiciously examined under the scope of the principle.

PROHIBITED ACT OR CONDUCT

Article 33 of the 1951 convention prohibits the expulsion or return of a refugee in any manner whatsoever. This implies the absolute nature of the principle of non-refoulement and that it admits of no known exception other than what was provided under subsection 2 of Article 33 of the Convention. Although there have been arguments as to the applicability of the principle to extradition agreements and arrangements among nations. Further arguments have insisted on the predominant nature of the principle of non-refoulement and that extradition agreements and treaties among nations should be made subject to the principle of non-refoulement. This argument has been given further credence by the explicit provisions of Conclusion No. 17 (XXXI) 1980 of the Executive Committee[18] which, in reiterating the fundamental nature of the principle of non-refoulement, emphasised the need for refugees to be safeguarded in situations of extradition to a territory where such refugee has a reasonable fear of persecution on account of race, religious or political beliefs or other reasons. It further encourages states to take into account the principle before signing treaties or agreements relating to extradition or even making laws on extradition while further encouraging the consideration of the principle in the fulfilment of existing international obligations on extradition.[19] Moreover, it has been argued[20] that an exclusion of extradition from the coverage of article 33 of the Convention will defeat the “humanitarian object of the Convention”, as States will find it easy to exempt themselves from obligations under the principle by using the device of extradition. It is noteworthy, that although Article 33 prohibits all forms of refoulement of refugees to territories in which such refugees have reasonable fear of persecution, states are not particularly expected to admit such refugees for a permanent period. What this will imply is that a state which does not have the means or resources to cater for such refugees may take such steps which do not amount to a refoulement. Such steps may include removal into another territory or make such temporary arrangement for the safety of the refugee.[21]

PERSONS PROTECTED

Article 33 of the Convention, having prohibited the refoulement of a refugee, it is apposite to examine who a refugee is. The definition of a refugee has been expanded and expounded by the 1967 Protocol[22] to the 1951 Convention and as such a refugee can be described as a person who,

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[23]

Hence this definition does not take into account the formal conferment of the status of a refugee through some organised legal process in the state to which such refugee seeks entry.[24]

PLACE TO WHICH REFOULEMENT IS PROHIBITED

It is explicit that Article 33 presupposes that refoulement should not be made to “the frontiers of territories where his life or freedom would be threatened…” this evidently prohibits the return of a refugee to any such place which could pose a threat to his peaceful existent. It does not necessarily mean his place of birth or origin or such other sovereign state. The operative word, therefore, will be such a place “where his life or freedom will be threatened,” regardless of the legal status of such place. In defining the threat, the relevant definition of a refugee as well as the presence of a reasonable fear as discussed above must be taken into consideration.[25]

It is important to note, that although the 1951 Convention and its attendant Protocol of 1967 does not bind States which are not Parties to them, the principle of non-refoulement as expounded have been applied as a matter of international customary law hence applicable to States who did not ratify the 1951 and 1967 instruments.[26]

CONCLUSION

The principle of non-refoulement is a fundamental principle in international law on the protection of refugees and even human rights. It frowns vehemently at any act of a State which denies a refuge of the protection sought from threats to his life or liberty by returning him to danger regions or territories.

It is also a fundamental principle of international customary law, as it enjoys general acceptance and has in several situations been made applicable to States who were not parties to the 1951 Convention.

[1] See Article 3

[2] See Article 2(3)

[3]See Article 22(8)

[4] See Article 3(2)

[5] See Article 4(5)

[6] See Article 12(3)

[7] Goodwin-Gill, Guy S., and Jane McAdam. The Refugee in International Law, Oxford University Press, Incorporated, 2021.

[8] As amended by the 1967 Protocol Relating to the Status of Refugees.

[9] Lauterpacht, S., & Bethlehem, D. (2003). The scope and content of the principle of Non-refoulement: Opinion. In E. Feller, V. Türk, & F. Nicholson (Eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (pp. 87-177). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511493973.008

[10] See Article I(1) of the 1967 Protocol.

[11] Lauterpacht, S., & Bethlehem, D. (2003) op cit.

[12] Articles on State Responsibility adopted by the International Law Commission (ILC) of the United Nations on the 31^st of May, 2001.

[13] Salvador Commercial Company, UNRIAA, vol. XV (Sales No. 66.V.3), p. 455, at p. 477 (1902) cited in Articles on State Responsibility op cit.

[14] Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62, cited in Articles on State Responsibility op cit.

[15] League of Nations, Conference for the Codification of International Law, Bases of Discussion for the Conference drawn up by the Preparatory Committee, vol. III: Responsibility of States for Damage caused in their Territory to the Person or Property of Foreigners (document C.75.M.69.1929.V) cited in Articles on State Responsibility op cit.

[16] See Articles on State Responsibility op cit.

[17]See Allain, J. (2001). The Jus Cogens Nature of Non-Refoulement. International Journal of Refugee Law, 13, 533-558.

[18] 1980 (Executive Committee—31st Session). No. 17 (XXXI) PROBLEMS OF EXTRADITION. AFFECTING REFUGEES paras. (b)–(e)

[19] See Lauterpacht et al; op cit. pg. 112

[20] Ibid.

[21] For a detailed discussion of this, see Lauterpacht et al; op cit.; See also UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954

[22] see Article I(2)

[23] See Trevisanut, Dr. Seline; “International Law and Practice: The Principle of Non-Refoulement and the De-Territorialization of Border Control at Sea”. Leiden Journal of International Law. (September 1, 2014) 27 (3): 661. doi:10.1017/S0922156514000259. S2CID 145445428

[24] See also Article 31 of the 1951 Convention.

[25] For an extensive discussion on this, See Lauterpacht et al; op cit. pg. 123-127

[26] See Goodwin-Gill, Guy S., and Jane McAdam. The Refugee in International Law, Oxford University Press, Incorporated, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/hull/detail.action?docID=6713322. Created from hull on 2023-04-15 11:23:45. Also UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954

AN APPRAISAL OF THE CONTENTS OF THE PRINCIPLE OF NON-REFOULMENT UNDER INTERNATIONAL LAW

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