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Non-refoulement () is a fundamental principle of
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
that forbids a country receiving asylum seekers from
returning In retail, a product return is the process of a customer taking previously purchased merchandise back to the retailer, and in turn receiving a refund in the original form of payment, exchange for another item (identical or different), or a st ...
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 A disaster is a serious problem occurring over a short or long period of time that causes widespread human, material, economic or environmental loss which exceeds the ability of the affected community or society to cope using its own resources ...
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 Convention relating to the International Status of Refugees, of 28 October 1933 was ratified by nine States, including France and (with a caveat) the United Kingdom. It was by virtue of this Convention that the principle of non-refoulement acquired the status of international treaty law. The principle of non-refoulement is important because of its role in an international collective memory of the failure of nations during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
to provide a haven to refugees fleeing certain genocide at the hands of
Nazi Germany Nazi Germany (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") (officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945) was ...
. Following
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
, 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 The Holocaust, also known as the Shoah, was the genocide of European Jews during World War II. Between 1941 and 1945, Nazi Germany and its collaborators systematically murdered some six million Jews across German-occupied Europe; ...
. In 1939, the ocean liner '' MS St. Louis'' sailed from Germany with over 900 Jewish passengers who were fleeing Nazi persecution. The ship sailed for
Cuba Cuba ( , ), officially the Republic of Cuba ( es, República de Cuba, links=no ), is an island country comprising the island of Cuba, as well as Isla de la Juventud and several minor archipelagos. Cuba is located where the northern Caribbea ...
, where the passengers expected to find refuge. However, Cuba admitted only twenty-eight passengers and refused to admit the rest. The ship then set sail for
Florida Florida is a state located in the Southeastern region of the United States. Florida is bordered to the west by the Gulf of Mexico, to the northwest by Alabama, to the north by Georgia, to the east by the Bahamas and Atlantic Ocean, a ...
in the hopes of finding refuge in the United States. But the U.S. government, and later also Canada, refused to allow the ship to dock and refused to accept any passengers. With conditions on the ship deteriorating and seemingly nowhere else to go, the ship returned to Europe, where approximately thirty percent of those passengers were later murdered in the Holocaust. Switzerland refused entry to nearly 20,000 French Jews who sought asylum there after the Nazi takeover of France. The Swiss argued the "boat is full" with respect to refugees during the War, and they were not obligated under existing law to accept French Jews for resettlement. As a result the Jews were forced to return to France, where most were killed. After WW2, under Operation Keelhaul, millions of refugees and prisoners from former Russia and the contemporary
Soviet Union The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
were forcibly returned despite evidence they would face persecution from the Soviet government. The action is considered a human rights violation and a war crime for its indiscriminate targeting of civilians, many of whom had never been Soviet citizens, fleeing Russia before the end of the
civil war A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government polic ...
. 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 (see '' Soering v. United Kingdom'' and ''
Chahal v. United Kingdom ''Chahal v United Kingdom'' (23 EHRR 413) was a 1996 judgment of the European Court of Human Rights which applied Article 3 of the European Convention on Human Rights, prohibiting the deportation of Sikh separatist Mr Chahal to India because of th ...
'') 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 The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
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 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an international human rights treaty under the review of the United Nation ...
. 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: ;Strict:This interpretation holds that non-refoulement laws only apply to asylum seekers who have physically entered a state's borders. States using this interpretation often enact policies and procedures designed to block asylum seekers from reaching their borders. ;Strict, with a narrow reading: This interpretation holds that only certain refugees are legally entitled to non-refoulement protection. If the country receiving an asylum seeker does not find that their "life or freedom would be threatened" by refoulement, this interpretation holds that they can be legitimately returned to their country of origin. ;Collectivist: This approach involves international systems designed to process the asylum claim in the country in which a person initially seeks asylum and redistribute them among other countries. This approach relies on the logic that Article 33 does not include language requiring states receiving asylum seekers to permit them to remain permanently, only an obligation not to send them back to a region in which they face likely danger. Refugee relocation agreements between countries must ensure they are not sent back by the new host country. The new host country does not have to be party to the 1951 Convention, however. ;Collectivist, with laws preventing asylum seekers from reaching sovereign borders: This approach is not an interpretation of Article 33, but a way around it. It combines the strict and collectivist approaches. States using this approach establish non-sovereign areas within their borders, primarily at travel hubs. Asylum seekers presenting themselves at such areas are then sent to another country to have their asylum claims processed. As with traditional collectivism, the asylum seeker cannot be sent to a country in which they face likely danger.


Examples of violations

Thailand Thailand ( ), historically known as Siam () and officially the Kingdom of Thailand, is a country in Southeast Asia, located at the centre of the Indochinese Peninsula, spanning , with a population of almost 70 million. The country is b ...
's forcible repatriation of 45,000 Cambodian refugees at Prasat Preah Vihear, on 12 June 1979, is considered to be a classic example of refoulement.Zieck, Marjoleine (1997). ''UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis''. Martinus Nijhoff Publishers, 1997; p. 147. 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 (about 7 percent) died.
Tanzania Tanzania (; ), officially the United Republic of Tanzania ( sw, Jamhuri ya Muungano wa Tanzania), is a country in East Africa within the African Great Lakes region. It borders Uganda to the north; Kenya to the northeast; Comoro Islands ...
's actions during the
Rwandan genocide The Rwandan genocide occurred between 7 April and 15 July 1994 during the Rwandan Civil War. During this period of around 100 days, members of the Tutsi minority ethnic group, as well as some moderate Hutu and Twa, were killed by armed Hutu ...
in 1994 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 Zaire (, ), officially the Republic of Zaire (french: République du Zaïre, link=no, ), was a Congolese state from 1971 to 1997 in Central Africa that was previously and is now again known as the Democratic Republic of the Congo. Zaire was, ...
. 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 (Resolving the Asylum Legacy Caseload) Act 2014'' (Cth). 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 Saudi Arabia, officially the Kingdom of Saudi Arabia (KSA), is a country in Western Asia. It covers the bulk of the Arabian Peninsula, and has a land area of about , making it the List of Asian countries by area, fifth-largest country in Asia ...
with the cooperation of the government of the
Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
. In 2018 Matteo Salvini (Italy's former interior minister) 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 being returned to the port of
Misurata Misrata ( ; also spelled Misurata or Misratah; ar, مصراتة, Miṣrāta ) is a city in the Misrata District in northwestern Libya, situated to the east of Tripoli and west of Benghazi on the Mediterranean coast near Cape Misrata. With a ...
in Libya, where they were beaten, tortured and in some cases killed. In 2019,
South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korea, Korean Peninsula and sharing a Korean Demilitarized Zone, land border with North Korea. Its western border is formed ...
deported two North Korean defectors back to
North Korea North Korea, officially the Democratic People's Republic of Korea (DPRK), is a country in East Asia. It constitutes the northern half of the Korean Peninsula and shares borders with China and Russia to the north, at the Yalu (Amnok) and ...
, 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. China routinely deports North Korean refugees who remain on its soil under a 1986 agreement with the North Korean government. In 2021,
Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
deported 1,086
Myanmar Myanmar, ; UK pronunciations: US pronunciations incl. . Note: Wikipedia's IPA conventions require indicating /r/ even in British English although only some British English speakers pronounce r at the end of syllables. As John Wells explai ...
nationals, despite a court order temporarily halting the repatriation amid concerns the group could be at risk if they were returned to military-ruled Myanmar. In 2021, the
Supreme Court of India The Supreme Court of India (IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
in ''
Mohammad Salimullah v. Union of India ''Mohammad Salimullah v. Union of India'' (Writ Petition (Civil) 793 of 2017), is a petition challenging the deportation of Rohingya Muslims who had taken refuge in India to escape persecution in Myanmar. The court however, in an interim order ...
'', allowed the
deportation Deportation is the expulsion of a person or group of people from a place or country. The term ''expulsion'' is often used as a synonym for deportation, though expulsion is more often used in the context of international law, while deportation ...
of Rohingya Muslim refugees back to Myanmar.


See also

*
Border Borders are usually defined as geographical boundaries, imposed either by features such as oceans and terrain, or by political entities such as governments, sovereign states, federated states, and other subnational entities. Political bo ...
* Impediment to expulsion * Monism and dualism in international law


References


Literature

* Kees Wouter
''International legal standards for the protection from refoulement - a legal analysis of the prohibitions on refoulement contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture''
Antwerpen: Intersentia, 2009 * Guy S. Goodwin-Gill & Jane McAdam ''The refugee in international law'', Oxford: Oxford UP, 2007 (prev. 1983, 1996) * Académie de Droit International de La Haye / Hague Academy of International Law ''Le droit d'asile = The right of asylum'', Dordrecht: Nijhoff (1990)


External links

{{Wiktionary, non-refoulement, refoulement
Defining the parameters of the non-refoulement principle
LLM thesis
Vladislava Stoyanova, "The Principle of Non-Refoulement and the Right of Asylum Seekers to Enter State Territory." ''Interdisciplinary Journal of Human Rights Law,'' Vol. 3, Issue 1, 2008.
1933 introductions International law League of Nations Refugees Right of asylum Statelessness