assignment on non refoulement

The principle of non-refoulement in the migration context: 5 key points

Throughout history, high numbers of persons have left, or have been forced to leave, their countries of origin. In many cases, on their journey to reach a place of safety, a better economic future, or both, these persons face severe hardship. One key concern upon arrival is whether or not they will be allowed to stay in a given country. Under international law, States have a right to regulate the stay of foreigners in their territory and may send them back to their country of origin. This prerogative is, however, not absolute and may only be exercised with due regard to other rules of international law.

In order to protect the most fundamental human rights of any migrant or refugee, States have developed the principle of non-refoulement . This principle, reflected in different bodies of international law, protects any person from being transferred (returned, expelled, extradited—whatever term is used) from one authority to another when there are substantial grounds for believing that the person would be in danger of being subjected to violations of certain fundamental rights.

The principle is multi-faceted and its scope and application vary from context to context in accordance with the applicable law. Here are five key points that explain the importance and relevance of the principle of non-refoulement in the wider migration context.

1. The principle of non-refoulement is found in different bodies of international law

The principle of non-refoulement is most often referred to in the context of refugee protection, given its codification in Article 33 of the Convention relating to the Status of Refugees (Refugee Convention) and in regional refugee law instruments. Over the past decades, however, the principle has also been included in human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 16) and in regional human rights instruments. Moreover, the UN Human Rights Committee has considered that non-refoulement is an integral component of the protection against torture or other forms of cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life. Similar conclusions were drawn by regional human rights courts, in particular the European Court of Human Rights ( Soering v. The United Kingdom , para. 88). Interestingly, already in 1949, the principle of non-refoulement was also included in the 1949 Geneva Conventions , [2] primarily with regard to detainee transfers, but also to protect the civilian population. At its core, the principle of non-refoulement is considered to form part of customary international law .

Under refugee law, the principle of non-refoulement applies to both refugees and asylum seekers. In addition to being protected against refoulement , refugees are entitled to a number of other rights provided under that body of law. In contrast, protection against refoulement under human rights law means a person cannot be returned, but will not automatically mean that the person has to be granted refugee status and be afforded all of the rights that refugees are entitled to. In all circumstances, however, a State must respect, protect and fulfil the human rights of all persons under its jurisdiction.

The main difference between the principle of non-refoulement under its different codifications is the question of who falls under its protection and for what reasons. Under refugee law, it protects refugees against return to places of persecution, while under IHL it only applies to certain categories of persons that are affected by armed conflicts. Under human rights law, the principle of non-refoulement can protect any person under a State’s jurisdiction, provided a pertinent danger exists in the State to which the person shall be transferred. Depending on the applicable human rights treaties, the principle protects individuals against different dangers that may not be covered by other bodies of law, such as a risk of death penalty, cruel punishment, or child recruitment and participation in hostilities, regardless of whether the danger to the person is based on a discriminatory ground or not. While refugee law recognizes certain narrowly defined exceptions to the principle of non-refoulement , the principle is absolute under other bodies of law.

2. The principle of non-refoulement is applicable whenever a person falls within the jurisdiction of a State

Under refugee and human rights law, it is understood that the principle of non-refoulement protects persons that are under the jurisdiction of a State. This is the case when a person is within a State’s territory, in its territorial sea, or when the State exercises effective control over the person. Under refugee law, there is great support for the view that the principle applies to rejection at a State’s border. Moreover, in recent years human rights bodies and courts have been clear that the principle also applies when States operate extraterritorially, including during interception or rescue operations in the high seas. There is, admittedly, some debate as to when exactly a person falls under the jurisdiction of a State. While it has been argued that in the context of border closures or ‘pushback operations’ the principle of non-refoulement applies because the State aims ‘to exercise effective control over the physical movement of migrants, even if only through the direct prevention of such movement in a certain direction’, the traditional view is that a State needs to exercise effective—meaning physical—control over a person for human rights law to apply. [3]

3. The principle of non-refoulement can protect persons fleeing armed conflict

The principle of non-refoulement applies regardless of whether a person flees from a country that enjoys peace or a country involved in an armed conflict: if there are substantial grounds for believing that the individual in question would be in danger of being subjected to violations of certain fundamental rights, the person cannot be returned. This would be the case, for instance, for a leader of an opposition group who would in all likelihood be tortured or summarily executed upon return.

While the principle of non-refoulement is traditionally understood as protecting against an individualized threat, it may also protect against more situational threats. As many conflicts are fought on religious, ethnic or political grounds, UNHCR has convincingly argued that civilians fleeing from armed conflicts often face persecution on one of these grounds and qualify as refugees. Regional instruments, legally-binding for most African States and non-legally binding in Latin America and Asia , also recognize refugee status and protection for persons fleeing armed conflicts or other situations seriously disturbing public order. A number of States have included such broad definitions in their national laws. In addition, the European Court of Human Rights has found that the principle of non-refoulement applies if a person is not individually targeted, but where the threat comes from ‘the most extreme cases of general violence, where there is a real risk of ill-treatment [or violations of the right to life] simply by virtue of an individual being exposed to such violence on return’ (i.e. N.A v. the United Kingdom , para. 115).

4. The principle of non-refoulement protects against direct and indirect measures that force a person to leave

The principle of non-refoulement prohibits not only the direct forcible return of persons in the above-described situations, but also indirect measures that have the same effect.

It is generally agreed that the principle protects persons from being transferred to a State which may not itself threaten the individual, but which would not effectively protect the person against onward transfer in violation of the principle of non-refoulement (called indirect, chain or secondary refoulement ).

Jurisprudence and expert opinions (see International Law Commission (article 10, including sources cited in commentary); and Committee against Torture (para. 14)) also support the view that the principle of non-refoulement prohibits States not only from directly transferring a person to a place of danger (return decision enforced by the State), but also from taking certain disguised or indirect measures that create circumstances leaving an individual with no real alternative other than returning to a place of danger. Some dispute that this is a legal prohibition. There is also, admittedly, a need for clarifying the scope of such a norm. However, it is rather compelling that if a State cannot lawfully return an individual, the principle of non-refoulement should also be understood as also prohibiting indirect measures designed to circumvent this prohibition.

5. The principle of non-refoulement requires procedural safeguards

In order to ensure that a person is not returned to a place where he or she would be in danger of certain fundamental rights violations, essential procedural safeguards are required. Under international and regional human rights law, persons with an arguable claim that they would be returned in violation of the non-refoulement principle have the right to an effective remedy. This would at least require that the individual needs to be informed of the transfer or return decision in a timely manner and be able to challenge the decision before an independent and impartial body. Given the seriousness of the danger at stake, returns must be suspended pending a decision. Importantly, these safeguards need to apply in all cases, including where a State purports to return people to an allegedly safe country or has obtained diplomatic assurances for the treatment of the person.

For a more in depth discussion on this topic

• See the recently published Note on migration and the principle of non-refoulement in the International Review of the Red Cross.

[1] The  ICRC,  like  the  other components of  the International  Red  Cross  and Crescent  Movement,  uses  a  deliberately  broad  description  of ‘migrants’ to include all people who leave or flee their home to seek safety or better prospects, and who may be in distress and need protection or humanitarian assistance. This approach shall not be understood, however, as undermining the fact that international refugee law foresees specific status and protections for persons qualifying as refugees.

[2] See Convention (III) relative to the Treatment of Prisoners of War , 1949, Art. 12; Convention (IV) relative to the Protection of Civilian Persons in Time of War , 1949, Art. 45(3, 4). In the ICRC’s view, in non-international armed conflicts the fundamental protections contained in Common Article 3 are to be understood as prohibiting parties to the conflict from transferring persons in their power to another authority when those persons would be in danger of suffering a violation of those fundamental rights upon transfer.

[3] For an analysis of pertinent case law and expert views, see Rodenhäuser, Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control, International Journal of Refugee Law , Volume 26, Issue 2, 2014, pp. 242-45.

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50 Non-refoulement

Penelope Mathew is Professor and Dean of Law at the University of Auckland.

The law in this chapter is valid as at the date of 1 January 2020. The author has referred to a few subsequent developments where possible. The author wishes to acknowledge Madison Hughes for her excellent assistance with footnoting.

• Published: 09 June 2021
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This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement . The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement . The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement —that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.

1. Introduction

This chapter concerns the most fundamental of all obligations owed to refugees—that of non-refoulement . The raison d’être of the obligation—protection—continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection 1 —the State—is implicated in the production of forced migration. That background or deep structure of the State system, critiqued in other chapters in this volume, 2 assists in explaining the phenomena explored in this chapter: the interaction between shrinking and expansive approaches to non-refoulement .

The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation (refugees, asylum seekers, and other non-nationals at risk of irreparable harm). The scope of the obligation is examined next, with emphasis on States’ attempts to divest their responsibilities through legal fictions (‘excision’ of State territory or creation of international zones) and extraterritorial immigration enforcement. 3 Application of non-refoulement to embassies abroad is also discussed. The chapter closes with a discussion of the concept of constructive or disguised refoulement —that is, when a refugee or an asylum seeker spontaneously leaves the country of asylum as a result of his or her treatment in that country.

2. Sources of the Obligation of Non-refoulement : Treaty Law

The cardinal obligation owed to refugees is the obligation of non-refoulement (literally meaning ‘not to force back’). 4 The Refugee Convention enshrines this obligation in article 33(1). Reservations may not be entered with respect to this provision. 5

The obligation precludes ‘chain’ or indirect refoulement . A State may not send a refugee to another State which then returns the refugee to a place of persecution. This follows from the prohibition on refoulement ‘in any manner whatsoever’. 6 However, the process of migration to a place of safety is not dealt with by the Convention, and the Convention does not expressly guarantee a right of entry to any particular State. As a consequence, the obligation of non-refoulement may be thwarted by the domestic legal framework governing migration (for example, requirements concerning visas) or more deliberately by various non-entrée measures. 7

Since the adoption of the Refugee Convention, the obligation of non-refoulement has been included in regional instruments concerning refugees, including the OAU (now AU) Convention, the American Convention on Human Rights 8 and the Cartagena Declaration, as well as many human rights treaties. For example, article 3 of CAT, and article 16 of the International Convention for the Protection of All Persons from Enforced Disappearances 9 prohibit refoulement .

In other instruments, non-refoulement is an implicit obligation. The Human Rights Committee has found it attaches to the right to life and the prohibition on torture and related forms of ill-treatment, 10 while the European Court of Human Rights has also found it attaches to the prohibition on torture and related forms of ill-treatment 11 as well as flagrant violations of other rights contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). 12 The Inter-American Court of Human Rights has similarly found that ‘a flagrant violation of the basic guarantees of due process may result in the violation of the principle of non-refoulement ’. 13 With respect to children, the Committee on the Rights of the Child has found that non-refoulement applies where there is a ‘real risk of irreparable harm to the child’, including where there is a threat to the survival and development of the child (articles 6 and 37 CRC), 14 while the Committee on the Elimination of All Forms of Racial Discrimination has referred to an implicit non-refoulement obligation attaching to article 5(b) of CERD. 15 Similarly, the Committee on the Elimination of Discrimination against Women has stated that a woman is not to be expelled to another State where ‘her life, physical integrity, liberty and security of person would be threatened, or where she would risk suffering serious forms of discrimination, including serious forms of gender-based persecution or gender-based violence’. 16

The incremental expansion of the rights to which non-refoulement attaches through the adoption of explicit treaty standards and judicial findings of implicit non-refoulement obligations raises a question as to whether non-refoulement attaches to all rights and what is the relevant threshold for its violation. States’ acceptance of explicit non-refoulement norms for a relatively small number of rights suggests they recognize, rightly or wrongly, a hierarchy of rights. With respect to implicit non-refoulement obligations, courts and human rights treaty bodies appear to have followed suit.

Within the European human rights system, for example, rights identified as attracting a non-refoulement obligation include articles 4 (the prohibition on slavery and forced labour), 5 (liberty and security), 6 (fair trial), 7 (the prohibition on retrospective criminalization and punishment), 8 (privacy and family life) and 9 (freedom of thought, conscience, and religion). One may posit that non-refoulement follows from the jus cogens status and non-derogability of particular rights (the prohibitions on torture and slavery, for example). However, the list accepted so far by the European Court of Human Rights goes beyond the usual candidates for jus cogens , so that basis for a hierarchy of norms and consequences is not applicable. The explicit basis for the jurisprudence of the European Court of Human Rights is the fundamental value enshrined in article 3 (and article 2, commonly treated together with article 3) and the idea that torture is an irreparable harm, while ‘flagrant breaches’ of other rights are required for non-refoulement to apply. This suggests that something that nullifies the right in question completely is irreparable. The problematic nature of this test has been noted by commentators and practitioners alike. 17

In addition to expansion of the non-refoulement obligation through treaty adoption and interpretation by the treaty bodies, a process of judicial dialogue 18 has extended the scope of the obligation. For example, with respect to health and the obligation of non-refoulement , the Inter-American Court of Human Rights has held that because of the connection between life, personality and health care, return that results in harm to or serious deterioration in the person’s health, or where it could lead to the person’s death, may violate the obligation of non-refoulement . 19 In order to determine whether the American Convention on Human Rights or the American Declaration of the Rights and Duties of Man 20 have been violated, ‘the status of the health or the type of ailment that the person suffers would have to be taken into account, as well as the health care available in the country of origin and the physical and financial accessibility to this, among other aspects’. 21 The Inter-American Court drew on jurisprudence from the European Court of Human Rights in this respect. 22

The European Court has since refined its own jurisprudence on this topic, finding that article 3 of the European Convention on Human Rights is triggered in

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. 23

Interestingly, the judicial dialogue in this case was more of a monologue as the court wrestled with its own previous jurisprudence and that of the Court of Justice of the European Union—the Inter-American Court’s decision is not mentioned.

3. Beneficiaries of the Obligation

The extension of non-refoulement to new contexts means that it offers protection to persons who do not meet the definition of a refugee—whether the definition in article 1A(2) of the Refugee Convention as modified by the 1967 Protocol, or the broader definitions contained in the OAU Convention and the Cartagena Declaration. In the case of Latin America, for example, the Inter-American Court has ruled that article 22(8) of the American Convention on Human Rights extends the obligation of non-refoulement to any non-national whose life, integrity or freedom is endangered. 24 As stated by that court, ‘the content of the principle of non-refoulement has a particular sphere of application rationae personae and materiae ’ depending on the branch of international law concerned—refugee law, human rights law, the prohibition of torture or article 22(8) of the American Convention on Human Rights. 25

This insight is important with respect to ‘dangerous refugees’ denied the protection of non-refoulement under article 33(2) of the Refugee Convention and persons who are excluded from refugee status under article 1F of the Refugee Convention. The Inter-American Court has stated that complementary protection (non-return and protection of basic rights) is appropriate in these circumstances. 26 Implicitly acknowledging the balancing act between the rights of the individual and the rights of the community, the court has said:

[t]his complementary protection should recognize the basic rights of the persons protected. The State may limit the exercise of certain rights when granting this protection, provided that this is based on sound and objective reasons and does not violate the principle of non-discrimination. 27

States will need to interpret the court’s guidance, but the court has clearly indicated that leaving people in a rightless limbo is not appropriate.

4.   Non-refoulement in Customary International Law

Most commentators also agree that the prohibition on refoulement of refugees is customary international law. There are many indications of opinio juris on the part of States confirming this is so. For example, in the New York Declaration for Refugees and Migrants, all members of the United Nations (over 40 of which are not party to the Refugee Convention or its 1967 Protocol) stated that:

We reaffirm respect for the institution of asylum and the right to seek asylum. We reaffirm also respect for and adherence to the fundamental principle of non-refoulement in accordance with international refugee law. 28

There is also judicial authority for the proposition. In particular, the Inter-American Court of Human Rights has consistently held that the obligation of non-refoulement , as found in the Refugee Convention and Protocol, is customary international law. 29

It is also generally accepted that the prohibition on refoulement to a place of torture or related ill-treatment is customary international law and jus cogens . 30 There is, however, debate concerning non-refoulement of refugees as jus cogens . 31 Costello and Foster examine the potential consequences of the jus cogens character of non-refoulement , noting that, at the very least, it means States cannot rely on the exception to refoulement contained in article 33(2) of the Refugee Convention where the person concerned faces a risk of torture or related ill-treatment. 32

5. Content and Scope of the Obligation of Non-refoulement

Two concepts are included in article 33 of the Refugee Convention, namely expulsion and return. Expulsion is also referred to in article 32 of the Convention, which prohibits expulsion of a refugee lawfully in State territory save on grounds of national security or public order, and only ‘in accordance with due process of law’. Consequently, expulsion for the purposes of articles 32 and 33 certainly encompasses a formal procedure for persons already lawfully within territory. 33 However, it is clear that the framers did not want to limit article 33 in this way, 34 and the concept of return in article 33 of the Convention, as will be shown below, has a broader scope.

The concept of expulsion has received judicial and expert attention in recent years. Notably, in Hirsi Jamaa v Italy the European Court on Human Rights found that the prohibition on collective expulsion in article 4 of protocol 4 to the European Convention on Human Rights and the implicit prohibition on refoulement in article 3 of the European Convention applied to asylum seekers on the High Seas. 35 The International Law Commission has also examined the topic.

In the International Law Commission’s effort to codify and progressively develop the law relating to expulsion of aliens, the scope of lawful expulsion appears both broader and narrower than that recognized in the Refugee Convention or international human rights law. In the Draft Articles on the Expulsion of Aliens (Draft Articles), the Commission has specified that the concept of expulsion applies to non-nationals within State territory, 36 ‘with no distinction between the various categories of persons involved, for example, aliens lawfully present in the territory of the expelling State, aliens unlawfully present, displaced persons, asylum seekers, persons granted asylum and stateless persons’. 37 Expulsion is defined for the purposes of the Draft Articles as ‘a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State’, but does not include non-admission of a non-national to State territory. 38 Pursuant to draft article 26, procedural rights apply, with the possible exception of non-nationals unlawfully on State territory for a brief duration. Thus for the purposes of the Draft Articles, a non-national unlawfully present in State territory is covered by the concept of expulsion, while a non-national seeking admission at the border is not. The International Law Commission (ILC) has specified that this is without prejudice to the prohibition on expulsion or refoulement of refugees—a move that has met with criticism, given the lingering debate concerning the reach of refoulement . 39

Interpreting article 33 of the Refugee Convention in light of article 32, it can be inferred that, in the absence of the phrase ‘lawfully present in state territory’, article 33 extends rationae personae to all refugees within State territory, including those unlawfully present, as well as to those beyond State territory. Nevertheless, States have attempted to avoid the obligation of non-refoulement through legal fictions such as ‘excision’ of territory 40 or treatment of areas such as airports as ‘international zones’, 41 and by interception of asylum seekers beyond their borders.

Fictions such as excision have easily been dismissed by supranational human rights courts and tribunals. For example, the Inter-American Court in its advisory opinion on Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection referred with approval to the Committee on the Rights of the Child’s statement that ‘State obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State’s territory or by defining particular zones or areas as not, or only partly, under the jurisdiction of the State’. 42

The jurisprudence of supranational human rights courts should also have shifted the debate as to whether non-refoulement applies at the border or extraterritorially, but some States, in particular Australia and the United States, cling to the idea that article 33(1) is territorially bound. This outlying State practice threatens the proper functioning of the Refugee Convention, as the obligation of non-refoulement is key to other refugee rights.

6. Extraterritorial Scope of the Prohibition on Refoulement : Practice, Scholarship, and Case Law

Although the Refugee Convention does not contain an express right to entry or a right to be granted asylum (in the sense of refugee status and all consequent protections) 43 by any particular State, in practice the obligation of non-refoulement demands that a refugee be allowed to ‘transgress an administrative border’ of a country other than the persecutory country of origin. 44 Consequently, States have adopted many deflection strategies to avoid recognizing refugee status. Frequently, States have sought to externalize their border controls. 45 The avoidance strategies include visa controls and placement of airline liaison officers abroad. There is also at present a predilection for walls along borders, such as those built by US president Donald J Trump and Hungarian prime minister Viktor Orbán.

Another spectacular, if sometimes covert, example of States acting extraterritorially in an attempt to avoid the obligation of non-refoulement is interdiction at sea. 46 In Southeast Asia, for example, boat pushbacks were used to garner resettlement offers during the Indochinese refugee crisis in the 1970s and 1980s. The lack of a responsibility-sharing mechanism to ensure refugees are properly protected and supported is a legitimate complaint on the part of developing countries 47 —one that has been responded to, at least in word, by the New York Declaration for Refugees and Migrants and subsequent Global Compact on Refugees. 48 However, it does not justify refoulement .

Pushbacks by Southeast Asian countries recurred during the Andaman Sea refugee crisis: Rohingya and Bangladeshis abandoned at sea by people smugglers during 2015 were initially turned away by the navies of Malaysia, Thailand, and Indonesia. 49 None of these three States are party to the Refugee Convention, and Malaysia is party to very few international human rights treaties, however, Indonesia and Thailand are party to a number of human rights treaties that prohibit refoulement and all are bound by customary international law. Eventually Indonesia and Malaysia agreed to permit disembarkation on condition that refugees would be resettled after a year. 50

The United States’ interception of Haitian asylum seekers in the 1990s led to a controversial decision by the US Supreme Court 51 that is relied upon to this day by governmental officials in some countries when seeking to justify their conduct. A prominent and long-standing example is Australia’s ‘Operation Sovereign Borders’. Operation Sovereign Borders is a militarized response to boat arrivals involving interception of boats at sea, along with offshore ‘processing’ (refugee status determination) on Nauru and Manus Island, Papua New Guinea.

It is well accepted by scholars that article 33 applies beyond State territory. Gammeltoft-Hansen offers a thorough analysis supporting the view that article 33 applies both at the physical border and beyond it. 52 Naturally, he begins with an examination of the text of the Refugee Convention in light of its object and purpose, as required by the standard rules of treaty interpretation reflected in articles 31 and 32 of the Vienna Convention on the Law of Treaties. 53

The ordinary meaning of the term refoulement in French, and ‘return’, in English, encompass action taken at the border and beyond it. Further, unlike many refugee rights in the Refugee Convention that are premised upon a certain level of attachment to State territory, article 33(1) makes no mention of the territory of possible States of refuge, referring simply to a prohibition on expulsion or return ‘ “in any manner whatsoever” to the frontiers of territories where [the refugee’s] life or freedom would be threatened’. 54

Noting, however, that the travaux preparatoires reveals some resistance to this interpretation, at least in cases of mass influx, 55 Gammeltoft-Hansen argues that the meaning of the words are in fact influenced by whether one adopts a territorialist or universalist premise. 56 Therefore, it is argued, one must move beyond the text to examine ‘informal sources’, namely relevant resolutions, 57 State practice 58 and other human rights treaties, 59 which have extended non-refoulement to instances where State jurisdiction is exercised.

Utilizing other human rights treaties as subsidiary means of interpretation, Gammeltoft-Hansen concludes that these ‘give additional support to an interpretation extending the applicability ratione loci to state jurisdiction for [a]rticle 33’. 60 As treaties must be interpreted so as to be effective, extraterritorial migration control will engage the obligation of non-refoulement in situations in which ‘states can be said to exercise a sufficient degree of power over either the refugee encountered or the geographic area in which control takes place’. 61 Further, he argues that

[a] strong presumption prevails that any interdiction measure, even if not amounting to effective control over individuals or a geographical area, through the act itself would entail jurisdiction and thus an obligation on behalf of the acting state to respect basic rights under international refugee and human rights law. 62

Extraterritorial migration control occurring within the territory of another sovereign State, he argues, may be a different matter. 63

There is also an important procedural element to the obligation of non-refoulement . The Refugee Convention does not refer to refugee status determination (RSD), except in passing. 64 National determinations of status are accepted as declaratory, rather than constitutive. 65 However, in order for States to meet the obligations set out in the Refugee Convention, including that of non-refoulement , RSD is essential (which, of course, may occur on a prima facie basis). Boat pushbacks generally do not involve RSD, and even where they have, the circumstances for RSD are likely to undermine its effectiveness. 66 Thus the Inter-American Court on Human Rights has concluded that interception at sea violates the principle of non-refoulement because the risks to individuals are not assessed. 67 Similarly, the Committee against Torture regards individual examination of cases as a preventative guarantee of the principle of non-refoulement . 68 As UNHCR submitted in its intervention as amicus curiae in an Australian High Court case involving the interception of Tamil asylum seekers, there is a ‘duty of inquiry’, that is, a State must ‘establish, prior to returning a person to another country, that the person who they intend to return is not at risk of those harms that are covered by the non-refoulement obligation’. 69

Controversially, in 1993, the US Supreme Court found that the relevant statute was not extraterritorial in reach. 70 The court bolstered this view with a strained interpretation of article 33 of the Refugee Convention to the effect that the exception in article 33(2) applied only to refugees within their territory, thus article 33(1) must also be so limited, along with two passages in the travaux preparatoires indicating that some States viewed article 33(1) as being limited to refugees on State territory. 71 The flawed assumption that returns can proceed in the absence, or on the basis, of inadequate RSD is central to the creation of a tension between the two paragraphs of article 33. As Wouters has written,

applying Article 33(1) to refugees who are outside the host country’s territory will involve the transportation of these refugees to the territory of the host State or the territory of a third country where the refugees will be received and their status assessed. Subsequently the question arises whether or not the refugee then poses a danger to the security of the territory he is in, in accordance with Article 33(2). 72

The Inter-American Commission on Human Rights found that the United States had, inter alia , violated the right to seek and receive asylum in article 17 of the American Declaration of the Rights and Duties of Man 73 when it ‘summarily interdicted and repatriated Haitian refugees to Haiti without making an adequate determination of their status [and] without granting them a hearing to ascertain whether they qualified as “refugees” ’. 74 This finding led to the Inter-American Court’s later jurisprudence concerning the extraterritorial application of the obligation of non-refoulement , including at sea. 75

Similarly, as previously noted, when applying article 3 of the European Convention on Human Rights in Hirsi Jamaa v Italy , a 2012 decision that involved interception on the High Seas by Italy, the European Court of Human Rights held that the provision applied extraterritorially. 76 The ruling has not prevented Italy from experimenting. Italy is now before the court in a case that concerns its cooperation with Libya, which ‘pulled back’ asylum seekers to Libya. 77 This case promises to explore an instance of ‘contactless control’, 78 whereby one State uses another to achieve refoulement . 79

In Hirsi Jamaa v Italy , it was clear that the asylum seekers would be returned to Libya, where protection, including from chain refoulement , was lacking, whereas the advisory opinions of the Inter-American Court (not surprisingly given the advisory jurisdiction) do not appear to be concerned with return to a particular destination. However, without due process, it will not be possible to determine whether any country is safe for intercepted individuals. In Hirsi , the court found a violation of article 13 (the right to a remedy) in conjunction with article 3 (along with article 4 of Protocol 4) of the European Convention. 80 This tends to confirm that absence of process may, in and of itself, be a violation of the obligation of non-refoulement , whether the deflection strategy is implemented with, or without, a clear destination State or purported ‘safe third country’. 81 This is important because some States simply divert boats in the absence of cooperation with a destination State, a notable example being Australia’s Operation Sovereign Borders. On one occasion, it became clear that India, the intended destination State for a boatload of Sri Lankan asylum seekers, was not going to accept them, resulting in the prolonged holding of the asylum seekers on board the Australian vessel to which they had been transferred. 82 A majority in the ensuing case before the High Court found a right to enter India was not a necessary condition for the decision to direct the vessel there, and nor was it necessary to afford the asylum seekers procedural fairness. 83 This is inconsistent with international law.

7.   Non-refoulement and Diplomatic Asylum

A variant of extraterritorial application of non-refoulement , which has occupied a grey or liminal space, involves embassies in third States (ie not the country of origin). This was the key issue at stake in the Inter-American Court’s 2018 advisory opinion on the institution of asylum. The request for the advisory opinion was brought by Ecuador at the time that WikiLeaks founder Julian Assange (an Australian national) had requested and received asylum in the Ecuadoran embassy in London. 84 The court held that article 22(7) of the American Convention on Human Rights and article XXVII of the American Declaration of the Rights and Duties of Man enshrine the right to request and receive territorial asylum, 85 and that there is no regional customary norm concerning diplomatic asylum. 86 However, the court also found that the principle of non-refoulement (which is broader under the Inter-American system than the Refugee Convention) 87 may be applicable and impose certain obligations on the State in whose embassy a non-national has sought protection. 88

The court stated that non-refoulement imposes positive obligations, 89 including an ‘individualized risk assessment and appropriate protective measures, including measures against arbitrary detention’. 90 It also said that the person cannot be left in limbo. Grant of asylum is not necessarily required but diplomatic measures are necessary, such as a request that the territorial State grant a laissez-passer in order to protect the asylum seeker’s rights. 91

In a subsequent case, the European Court of Human Rights ruled that Syrian asylum seekers who had applied for visas from the Belgian Embassy in Lebanon were not within Belgium’s jurisdiction for the purposes of Article 3 of the European Convention on Human Rights and declared the case inadmissible. 92 The Court considered that ‘to find otherwise would amount to enshrining a near-universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction’. 93

8. Constructive or Disguised Refoulement

A different strategy to the externalization of border control involves the effective internalization of the border by refugees and asylum seekers, 94 resulting in return on their own initiative. This is known as constructive or disguised refoulement . 95

Spontaneous return is not refoulement if the decision to do so is voluntary, even where the circumstances in the country of origin remain such as to ground a well-founded fear of persecution. Voluntary repatriation, one of the three traditional durable solutions for refugees, is distinct from the situation of cessation of refugee status where the circumstances in the country of origin have fundamentally changed so that there is no well-founded fear of persecution. 96 However, there are often situations where the voluntariness of repatriation, including those conducted under the auspices of UNHCR, is questionable. As Long has noted,

in many repatriations, including those to Afghanistan, South Sudan, and Angola, the interest of host and donor states in promoting return…continues to stretch the meaning of voluntariness to cover a number of persuasive and coercive tactics, from billboards and promotional T-shirts, through increasingly generous cash grants, to onerous processes of re-registration and increasingly public discussion of imminent cessation clauses. 97

Meanwhile, in developed countries, policies that lead to the destitution of asylum seekers, have been quite common. 98

In the United Kingdom, regulations denying income support to asylum seekers led to a case in which UNHCR argued that the situation was a case of constructive or disguised refoulement . In the event, the court decided the case for the asylum seekers on grounds other than constructive refoulement . However, Simon Brown LJ described the situation in terms that epitomize the phenomenon:

A significant number of genuine asylum seekers now find themselves faced with a bleak choice: whether to remain here destitute and homeless until their claims are finally determined or whether instead to abandon their claims and return to face the very persecution they have fled. 99

Since then, there has been a small but growing body of jurisprudence acknowledging the concept of constructive or disguised refoulement . 100 The Committee against Torture has said in a General Comment that States should not ‘compel’ return through ‘dissuasive measures or policies’. 101 The International Law Commission for its part has adopted a provision on ‘disguised expulsions’ in the Draft Articles. 102

While the concept has received judicial and expert recognition, the requisite threshold is a matter for debate. The threshold adopted by the International Law Commission may be too stringent. Article 10(2) requires that States intend to cause return. This may be too high a threshold if it requires refugees and asylum seekers to prove intent, particularly when States may plausibly argue that they have other motivations for their behaviour. Faced with the Kenyan government’s insistence that it did not intend to violate the non-refoulement principle by pursuing a policy of forced encampment of refugees, Judge DS Majana of the Kenyan High Court stated that ‘violation of the principle may be indirect and may be the unintended consequence of a policy that does not, on its face, violate the principle’. 103

In a case in which there was an effective finding of constructive or disguised refoulement (although the court did not use this terminology), MS v Belgium , 104 the European Court of Human Rights adopted a test of ‘free consent’ on the part of the individual to be returned. In this case, an Iraqi asylum seeker had been arrested for criminal association, fraud, and suspicion of links with Al-Qaeda and supply of documents allowing Islamists into Europe. He had been imprisoned and subjected to expulsion proceedings involving immigration detention and residence orders. Consequently, he decided to return home. The court said that

[t]he applicant has been faced with the following choices: he could decide to stay in Belgium without any hope of obtaining, one day, the right to stay legally and without a real prospect of living freely; another option would be to return to Iraq, knowing of the risks of being arrested and subjected to ill treatment in prison; one last option would be to go to a third country, which is not practically feasible. The court is of the opinion that, in these circumstances, the conditions of ‘free consent’ were not met…. 105

If the concept of disguised or constructive refoulement is to be applied so as to prevent returns in cases like MS , it is arguable that the standard of proof or threshold for constructive refoulement where return has not yet occurred should be the same as the test applied in relation to the well-founded fear of persecution—is there a ‘real chance’ (or the equivalent test from other jurisdictions) 106 that a person will return if certain policies are pursued? 107 It is suggested that examination of the pressure applied through government policy and the individual vulnerabilities of the person concerned would be required. As I have written elsewhere, the concept of constructive refoulement could be particularly useful in cases where a putative ‘safe third country’ is involved. Constructive refoulement ‘may work hand in hand with the concept of chain refoulement to prevent a sending state from relying on “protection elsewhere” when meaningful or effective protection is actually absent’. 108

9. Conclusion

As the obligation of non-refoulement has expanded in reach, through the conscious lawmaking efforts of States in treaty creation, progressive judicial interpretation of the relevant instruments and affirmative opinio juris concerning its status as customary international law, States have often sought to avoid its application in practice. Some States have tried to avoid asylum seekers’ presence on their territory—through interception at sea, for example—or to cause their return once they have arrived, sometimes through enforced destitution. As discussed above, significant judicial decisions of the Inter-American Court of Human Rights and the European Court of Human Rights have found that measures such as interception at sea breach the obligation of non-refoulement , given that States do not and cannot satisfy themselves as to the protection needs of the persons intercepted. The case law concerning constructive/disguised refoulement is still developing, however it is equally clear that States may violate the obligation of non-refoulement where asylum seekers are forced to return home because of policies of destitution. 109

Researchers and practitioners may find it profitable to further explore the concept of constructive refoulement , particularly the questions concerning the standard of proof or threshold. Similarly, the issue of which rights attract the obligation of non-refoulement and the threshold for a violation of an implicit non-refoulement obligation are live questions. Given the inventiveness of States and their capacity to thwart asylum seekers’ migration in areas beyond the public gaze, multidisciplinary research on the benefits of complementary migration pathways will be important given the limited nature of remedies for those who are returned to danger in spite of States’ non-refoulement obligations.

See James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) chs 1, 4.

In particular Chapter 2 in this volume.

Discussed further in Chapter 27 in this volume.

Hathaway notes the variations on the English translation of non-refoulement , including a commitment ‘not to turn back’: James C Hathaway, The Rights of Refugees Under International Law (CUP 2005) 316, citing Ad Hoc Committee on Statelessness and Related Problems, First Session, Summary Record of the Twentieth Meeting Held at Lake Success, New York (1 February 1950), UN doc E/AC.32/SR.20, 12 (statement by Mr Henkin, United States).

Refugee Convention, art 42(1).

Refugee Convention, art 33(1).

James C Hathaway, ‘The Emerging Politics of Non-Entrée’ (1992) 91 Refugees 40.

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123.

International Convention for the Protection of All Persons from Enforced Disappearances (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3.

UN Committee on Human Rights, ‘General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Convention’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ UN doc HRI/GEN/1/Rev.9 (Vol I) (27 May 2008) 245–6 para 12.

See Soering v UK (1989) 11 EHRR 439, para 88; JK v Sweden (2017) 64 EHRR 15, para 79. For discussion, see Erna Kristín Blöndal and Oddný Mjöll Arnardóttir, ‘Non-refoulement in Strasbourg: Making Sense of the Assessment of Individual Circumstances’ (2018) 5 Oslo Law Review 147.

Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222. For a critical perspective, see Cathryn Costello, ‘The Search for the Outer Edges of Non-refoulement in Europe: Exceptionality and Flagrant Breaches’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition: Comparative Legal Practice and Theory (Brill 2016).

Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection , Advisory Opinion OC-21/14, Inter-American Court of Human Rights Series A No 21 (19 August 2014) para 230.

UN Committee on the Rights of the Child, ‘General Comment 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ UN doc HRI/GEN/1/Rev.9 (Vol II) (27 May 2008) 449, para 27.

UN Committee on the Elimination of Racial Discrimination, ‘Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination—Tunisia’, UN doc CERD/C/TUN/CO/19 (23 March 2009) para 15.

UN Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 32,’ UN doc CEDAW/C/GC/32 (14 November 2014) para 23.

For discussion, see Costello (n 12) 205–7.

For discussion of judicial dialogue, including dialogue between the European Court of Human Rights and the Inter-American Court of Human Rights, see Eduardo Ferrer Mac-Gregor, ‘What Do We Mean When We Talk About Judicial Dialogue? Reflections of a Judge of the Inter-American Court of Human Rights’ (2017) 30 Harvard Human Rights Journal 89.

Rights and Guarantees of Children in the Context of Migration (n 13) para 229.

American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 doc 6, rev 1 at 17 (1992).

ibid para 229, n 445. The Inter-American Court cited the European Court’s decision of D v UK (1997) 24 EHRR 423.

See Paposhvili v Belgium , App No 41738/10 (ECtHR, Grand Chamber, 14 December 2016) para 183.

Pacheco Tineo Family v Bolivia , Inter-American Court of Human Rights Series C No 272 (25 November 2013) para 135.

Rights and Guarantees of Children in the Context of Migration (n 13) para 234.

ibid paras 237–40.

ibid para 240.

New York Declaration for Refugees and Migrants, para 67.

The Institution of Asylum and its Recognition as a Human Right in the Inter-American System of Protection (Interpretation and Scope of Articles 4, 22.7 and 22.8 in relation to Article 1(1) of the American Convention on Human Rights) , Advisory Opinion OC-25/18, Inter-American Court of Human Rights Series A No 24 (30 May 2018) (only available in Spanish, unofficial English translation available at Inter-American Court of Human Rights, ‘Advisory Opinion OC-25/18 of 30 May 2018 Requested by the Republic of Ecuador’ ( Refworld , 30 May 2018) < www.refworld.org/cases,IACRTHR,5c87ec454.html > accessed 30 June 2019) para 179; Rights and Guarantees of Children in the Context of Migration (n 13) para 211; Pacheco Tineo (n 24) para 151.

For discussion, see Nigel S Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd edn, OUP 2009). They note several judgments of the ICTY, along with decisions of the European Court of Human Rights and the Inter-American Court of Human Rights holding that torture and related forms of ill-treatment are both custom and jus cogens : 76. For a recent affirmation by the Inter-American Court of Human Rights, see Institution of Asylum (n 29) para 181.

For discussion see Cathryn Costello and Michelle Foster, ‘Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2015) 46 Netherlands Yearbook of International Law 273, 306–10. They conclude that the non-refoulement obligation contained in the Refugee Convention is ‘ripe for recognition as jus cogens ’: 309. The International Law Commission’s special rapporteur on the topic of peremptory norms of general international law ( jus cogens ) has noted ‘ample support’ for the principle of non-refoulement as jus cogens : International Law Commission, ‘Fourth Report on Peremptory Norms of General International Law ( Jus Cogens ) by Dire Tladi, Special Rapporteur’, UN doc A/CN.4/727 (31 January 2019) para 131. However, non-refoulement was not included in the recommended draft conclusion containing the non-exhaustive list of peremptory norms.

Costello and Foster (n 31) 314.

cf Cornelis Wouters, International Legal Standards for the Protection from Refoulement (Intersentia 2009) 50.

Hathaway discusses the evolution of articles 32 and 33 and the view that article 32 was a supplement to article 33: James C Hathaway (n 4) 664.

Hirsi Jamaa and Others v Italy (2012) 55 EHHR 21.

International Law Commission, ‘Draft Articles on the Expulsion of Aliens’ in Report of the International Law Commission on the Work of its 66 th session , UN doc 14/69/10 (2014) ch 4, draft article 1(1).

Ibid Commentaries on Draft Article 1, para 2.

Ibid draft art 2(1).

Ibid draft art 6. For discussion of the problems concerning this ‘without prejudice’ approach see Gerald L Neuman, ‘Human Rights and the International Law Commission’s Draft Articles on the Expulsion of Aliens’ (2017) 30 Harvard Human Rights Journal 3, 12; Won Kidane, ‘Missed Opportunities in the International Law Commission’s Final Draft Articles on the Expulsion of Aliens’ (2017) 30 Harvard Human Rights Journal 77, 81–3. Kidane also criticizes the melding of articles 32 and 33 in the ILC’s approach: 81–3.

Australia ‘excised’ certain territories from the migration zone following the arrival of the Norwegian freighter, the Tampa , which had rescued 433 asylum seekers from the Indian Ocean.

For an example, see the French practice discussed in Amuur v France (1996) 22 EHRR 533 para 19. See also ZA and Others v Russia , App No 61411/15 (ECtHR, Grand Chamber, 21 November 2019). Regarding Hungary’s actions with respect to transit zones along the Serbian-Hungarian border, see C-924/19 PPU and C-925/19 PPU (CJEU, 14 May 2020), and compare with Ilias and Ahmed v Hungary , App No 47287/15 (ECtHR, Grand Chamber, 21 November 2019).

Rights and Guarantees of Children in the Context of Migration (n 13) para 220, citing UN Committee on the Rights of the Child (n 14).

The Inter-American Court has helpfully defined ‘asylum’ as ‘the protection that a State offers to persons who are not its nationals when their life, personal integrity, security and/or freedom are or could be in danger, as a result of persecution for political offences, or for political reasons’ (emphasis added): Institution of Asylum (n 29) para 66. Further, it has recognized that ‘[a]lthough the 1951 Convention does not explicitly establish the right of asylum as an explicit right, it is considered to be implicitly incorporated in its text, which contains the definition of a refugee, protection under the principle of non-refoulement and a catalogue of rights to which refugees have access’ (footnote omitted): para 95. See also para 101.

Gregor Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’ (2005) 17 IJRL 542, 548. Similarly, the Committee against Torture has stated that ‘[a]ny person found to be at risk of torture if deported to a given State should be allowed to remain in the territory under the jurisdiction, control or authority of the State party concerned so long as the risk persists’: UN Committee against Torture, ‘General Comment 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22,’ UN doc CAT/C/GC/4 (4 September 2018) para 12.

For discussion, see Bill Frelick, Ian M Kysel and Jennifer Podkul, ‘The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants’ (2016) 4 Journal on Migration and Human Security 190.

See Chapter 26 in this volume for the paradoxical situation in which refugees’ interception at sea contributes to the phenomenon that asylum seekers are ‘out of sight, out of mind’, and yet are also highly visible—a ‘border spectacle’.

It should be noted that Malaysia, Thailand, and Indonesia are now classed as middle-income countries, however Indonesia is a lower-middle-income country characterized by high levels of poverty with around 9 per cent of the population living in absolute poverty, that is, under the national poverty line, which is set at around 82 US cents a day. The international poverty line is USD $2.00 per day, which sees a significant proportion of the Indonesian population living in poverty.

New York Declaration (n 28); Global Compact on Refugees.

For discussion, see Amnesty International, ‘Deadly Journeys: the Refugee and Trafficking Crisis in Southeast Asia’ (Report, October 2015).

The deadline passed with very few of the refugees resettled by third countries. See Madeline Gleeson, ‘Unprecedented but Unfulfilled: Refugee Protection and Regional Responses to the Andaman Sea “Crisis” ’ (2017) 38 Anthropologi Indonesia 6.

Sale v Haitian Centers Council , 509 US 155 (1993).

Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (CUP 2011).

The relevant provisions of the Vienna Convention on the Law of Treaties codify customary international law applicable to the Refugee Convention (the Convention having been adopted prior to the Vienna Convention).

See UNHCR, ‘Submissions of the Office of the United Nations High Commissioner for Refugees Seeking Leave to Intervene as Amicus Curiae’, Submission in CPCF v Minister for Immigration and Border Protection No S169/2014 (15 September 2014) para 9.

The idea that there is an exception to refoulement in cases of mass influx is highly controversial today. But see Hathaway (n 4) 355–63.

Gammeltoft-Hansen (n 52) 51.

Conclusions of the Executive Committee of the High Commissioner’s Programme and the ‘Declaration on Territorial Asylum’, UNGA res 2312 (XXII) (24 December 1967) confirm that the obligation of non-refoulement applies at the border and beyond: Gammeltoft-Hansen (n 52) 69.

On the paucity of practice accompanied by claims of international lawfulness, see Gammeltoft-Hansen (n 52) 74.

ibid 132–3.

In particular article 9 of the Refugee Convention concerning provisional measures adopted during time of war or exceptional circumstances stipulates that provisional measures should only be taken pending determination of refugee status.

As stated in the UNHCR Handbook, a refugee ‘does not become a refugee because of recognition, but is recognized because he is a refugee’: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees , HCR/1P/4/ENG/REV.4 (1979, reissued 2019) para 28.

The US ‘process’ concerning Haitians fleeing Haiti by boat was condemned as inadequate by the Inter-American Commission on Human Rights for this reason. See Haitian Centre for Human Rights v United States ( US Interdiction of Haitians on the High Seas ), Inter-American Commission on Human Rights Report No 51/96, Case 10.675 (13 March 1997) para 163. The Australian interceptions under Operation Sovereign Borders suffer from the same defects: Joyce Chia, Jane McAdam, and Kate Purcell, ‘Asylum in Australia: “Operation Sovereign Borders” and International Law’ (2014) 32 Australian Year Book of International Law 33.

Rights and Guarantees of Children in the Context of Migration (n 13) para 220; Institution of Asylum (n 29) para 122.

UN Committee against Torture (n 44) para 18(a).

UNHCR (n 54) para 43.

Sale (n 51).

ibid 179–87.

Wouters (n 33) 55.

Interdiction of Haitians on the High Seas (n 66).

ibid para 163.

Hirsi (n 35) para 137.

SS and Others v Italy , App No 21660/18 (pending).

See Chapter 26 in this volume.

For further analysis of the application of the rules of State responsibility in cases of ‘cooperative deterrence’, see James C Hathaway and Thomas Gammeltoft-Hansen, ‘ Non-Refoulement in a World of Cooperative Deterrence’ 53(2) Columbia Journal of Transnational Law (2015) 234–84.

Hirsi (n 35) para 205.

For discussion of safe third countries, see Chapter 28 in this volume.

For discussion of this incident, see Chia, McAdam, and Purcell (n 66).

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514.

The court gave the opinion on the basis that this was not a disguised contentious case. The UK is, of course, not a part of the Inter-American human rights system.

This followed from the fact that these provisions refer to receiving protection ‘in a foreign territory’ and diplomatic legations are not foreign territory: Institution of Asylum (n 29) paras 155, 156, and Dispositif , paras 2, 3.

ibid paras 162, 163.

ibid para 186.

ibid para 188.

ibid Dispositif , para 5.

ibid para 194.

ibid para 198.

M.N. and Others v Belgium , App No 3599/18 (ECtHR, Grand Chamber, 5 May 2020).

ibid para 123.

This may be viewed as a variant of the embodied border. See Leila Marie Whitley, ‘More than a Line: Borders as Embodied Sites’ (DPhil thesis, Goldsmiths College, University of London 2015).

As explained by the International Law Commission, translation of ‘constructive’ into other languages, particularly French, is difficult and might ‘carry an undesirable positive connotation’: Draft Articles (n 36) Commentaries on Draft Article 10, para 1.

Refugee Convention, arts 1(C)(5), (6).

Katy Long, The Point of No Return: Refugees, Rights, and Repatriation (OUP 2013) 147.

For discussion of State practice diverging from the recast Reception Directive in the EU that may lead to destitution, see Asylum Information Database, ‘Withdrawal of Reception Conditions of Asylum Seekers: An Appropriate, Effective or Legal Sanction?’ (ECRE, July 2018). For a recent discussion of policy in the UK, see Lucy Mayblin, ‘Imagining Asylum, Governing Asylum Seekers: Complexity Reduction and Policy Making in the UK Home Office’ (2019) 7 Migration Studies 1. For discussion of recent Australian policy, see Refugee Council of Australia, ‘Starving Them Out: How the Australian Government is Forcing People Seeking Asylum into Destitution’ (Report, 26 March 2018).

R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 283–4.

See eg JA and Others v Director of Immigration [2011] HKCFI 10, para 82; ‘Individual Opinion of Committee Members Yuval Shany and Konstantine Vardzelashvili (concurring)’ in Warda Osman Jasin v Denmark UN doc CCPR/C/114/D/2360/2014 (25 September 2015) app 2, 14, para 2.

UN Committee against Torture (n 44) para 14.

Draft Articles (n 36) art 10.

Kituo Cha Sheria and Others v Attorney General [2013] eKLR, para 74.

MS v Belgium , App No 50012/08 (ECtHR, 31 January 2012).

ibid para 124 (unofficial translation by the author). The test has been applied again. See NA v Finland , App No 2524418 (ECtHR, 14 November 2019) para 60.

The various tests are described in Hathaway and Foster (n 1) 113.

See further, Penelope Mathew, ‘Constructive Refoulement’ in Satvinder Singh Juss (ed), Research Handbook on International Refugee Law (Edward Elgar 2019).

Mathew (n 107) 217.

cf MSS v Belgium and Greece , App No 30696/09 (ECtHR, Grand Chamber, 21 January 2011).

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Cornell International Law Journal The preeminent source for scholarship on foreign and international law

Non-refoulement in the international refugee law regime: a lex specialis, vol. 6.

By Jenny Poon *

This article explores the principle of non-refoulement as defined by the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and considers whether this principle is considered lex specialis, such that where a general law and a special law governing the same issue is in normative conflict, that non-refoulement as defined under Article 33(1) of the Refugee Convention should govern.  This article briefly examines what occurs when the broader human rights definition of non-refoulement is in normative conflict with the narrower definition of non-refoulement as found under the Refugee Convention.

Non-Refoulement in the Refugee Law Context

The principle of non-refoulement is the cornerstone of the international refugee protection regime and it is the right of the asylum claimant or refugee not to be sent back to face persecution. [1]  This principle has been codified under Article 33(1) of the Refugee Convention, is considered customary international law, and has been widely accepted as a jus cogens norm from which no derogation is permitted. [2]   Non-refoulement is violated when a State sends back an asylum claimant or refugee to his or her country of origin to face persecution (direct refoulement ).  Indirect refoulement occurs when a sending State sends an asylum claimant or refugee to a receiving State, where the sending State knew or ought to have known that the sending State has inadequate asylum procedures to process the application. [3]

Non-Refoulement in the Human Rights Context

In the human rights context, non-refoulement has been extended by human rights treaties to cover protection from torture, cruel, inhuman, or degrading treatment or punishment, and massive violations of human rights such as death penalties.   Non-refoulement is found under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 7 of the International Covenant on Civil and Political Rights as the prohibition against torture. [4]  The prohibition against torture is an absolute prohibition and is a jus cogens norm such that whether States have signed onto these human rights treaties or not, they have an obligation to prohibit torture in all forms. [5]

Non-Refoulement: A Norm of Refugee Protection or a Human Right?

Lex specialis is a legal doctrine that proposes that where the issues are the same as governed by two different sets of rules where one is general, and another is special, the latter takes precedent over the former. [6]  In the context of State responsibility, the Articles on the Responsibility of States for Internationally Wrongful Acts provides that the lex specialis principle applies to the extent of any inconsistency between the general and special rule. [7]

The normative conflict arises when the broader human rights definition of non-refoulement , which offers greater protection for asylum claimants and refugees, applies and displaces the refugee definition.  The question is then when the human rights definition applies and when the refugee definition applies.  For example, non-refoulement as formulated in the human rights context provides a much wider protection for asylum claimants and refugees because it covers cases where the individual is not necessarily fleeing from persecution, but also situations where the individual is fleeing from death, torture, or other massive violations of human rights (general rule or lex generalis ).  However, this is in normative conflict with the specialist rule of non-refoulement as defined under refugee law (or the Refugee Convention), since non-refoulement is not absolute in character, but rather, in exceptional cases where the asylum claimant or refugee is found to be a danger to the community or have been convicted of a serious crime in the receiving country and is therefore a danger to that community (special rule or lex specialis ). [8]

Some scholars such as Jane McAdam argue that although the Refugee Convention is a form of lex specialis because it offers special refugee protection to a group of vulnerable individuals, it should not displace international human rights law, but instead is informed by and complements the its application. [9]  Other scholars such as Vincent Chetail argue that the Refugee Convention cannot be lex specialis because general human rights norms cannot be dissociated from their treaty body interpretations, which may result in a more precise understanding of the norm than their refugee law counterparts. [10]  Chetail argues that ‘human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role.’ [11]

Despite the unorthodox approach taken by some scholars such as Chetail, it is suggested instead that the mutual influence of human rights law and refugee law upon each other is such that these two branches of international law may work hand-in-hand to offer broader protection to asylum claimants and refugees.  Refugee law and human rights law need not be mutually exclusive, and may instead complement each other such that where a gap is created by refugee law, it may be filled by human rights law.  For instance, in cases where non-refoulement does not apply to those who are deemed to be a danger to the community, human rights law extends its protection to prevent their being sent back to death, torture, or other massive violations of human rights.  Where human rights law lacks the specific protection required to protect those who face a ‘well-founded fear of persecution’ not amounting to torture or death, refugee law may step in to intervene.

Concluding Remarks: Non-Refoulement, a Lex Specialis?

While it is still debatable whether non-refoulement should be considered lex specialis so that, according to the doctrine, it replaces lex generalis to the extent of the inconsistency, it is certain that refugee law and human rights law are inseparable.  It is suggested that instead of regarding these two areas of international law as silos, they should be considered as intricate tools, powerful when used together, to offer the widest possible protection to asylum claimants and refugees.

* Jenny Poon is a Ph.D. candidate at the Faculty of Law of the University of Western Ontario, Canada, and a Barrister & Solicitor in Ontario, Canada. Jenny’s research involves a comparative analysis of the principle of non-refoulement as a norm in both international and European Union law.

[1] Convention Relating to the Status of Refugees art. 33(1), July 28, 1951, 189 U.N.T.S. 150.

[2] See Jean Allain, The Jus Cogens Nature of Non-Refoulement , 13 Int’l J. Refugee L. 533, 533–558.

[3] See Moira Sy, UNHCR and Preventing Indirect Refoulement in Europe, 27 Int’l J. Refugee L. 457, 457–480.

[4] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85; International Covenant on Civil and Political Rights art. 7 Dec. 16, 1966, 999 U.N.T.S. 171.

[5] See Erika de Wet, The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law, 15 Eur. J. Int’l L. 97, 97–121.

[6] See Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law , Report of the Study Group of the International Law Commission, April 13, 2006.

[7] Articles on the Responsibility of States for Internationally Wrongful Acts art. 55, Nov. 2001, Supplement No. 10 (A/56/10), Chapter IV.E.1.

[8] See Refugee Convention, supra note 1, at art 33(2).

[9] See Jane McAdam, The Refugee Convention as a Rights Blueprint for Persons in Need of International Protection, July 2006, UNHCR Research Paper No. 125.

[10] See Vincent Chetail, Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations Between Refugee Law and Human Rights Law in Ruth Rubio-Marin, Human Rights and Immigration (Oxford Scholarship Online), 19–72, http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198701170.001.0001

/acprof-9780198701170-chapter-2.

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Is the “non-refoulement” principle valid for climate migrants too.

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Environmental changes caused by exacerbating climate conditions are amidst one of the most severe reasons leading to the choice to migrate. Persons fleeing their homes following a natural disaster or other catastrophic event caused by climate change are labeled “climate migrants”. However, under the current international legislation, the figure of “climate migrant” does not exist yet (1). As a matter of facts, these people do not automatically have the right to be protected under international law. Such condition is illogic as the number of environmental migrants crossing international borders is continuing to grow and this growth will increase more and more in the near future as climate conditions will continue to deteriorate, more severely and more rapidly.

A specification regarding the category of “climate migrants” is necessary. It is perspicuous to affirm that a climate-related catastrophic event threatens the life of affected people, just think of the earthquake in Turkey and Syria occurred on February 6 (2023): such event destroyed the lives of many and is jeopardizing the possibilities of survival of those who have survived this catastrophic event. Hence why, often, people affected by environmental calamities choose to flee their homes becoming internally displaced (IDPs – internally displaced people) if they remain inside their country or internationally displaced if they choose to cross borders. As mentioned, such category of migrants is not protected under international law and, more specifically, a person migrating for climatic-related reasons cannot be considered as “refugee” in that does not meet the “persecution criteria” as codified in the 1951 Refugee Convention (2). In point of fact, the International Organization for Migration (IOM) defines environmental migrants as

Persons or groups of persons who, predominantly for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad (3).

This notwithstanding, there is a principle in international law that has become fundamental in customary law and that is the principle of “ non-refoulement ”, codified by the mentioned Refugee Convention (2). Such concept could be applied to the category of “climate migrants”: as a matter of facts, it could fill the legal protection gap for environmental migrants, but only if threshold requirements are met in a case-by-case basis (1). According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), under international human rights law, the principle of “ non-refoulement ” guarantees that no person should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of their migration status (4). Given that it is now considered customary international law, the “ non-refoulment ” principle has been extended to all persons who cannot return to their country of origin in that they would face death, persecution or other inhuman or degrading life conditions; therefore, also to those people who do not fall under the category of “refugee” as codified in the 1951 Convention (2).

Since the consequences of an environmental disaster may cause death and inhuman or degrading life conditions, it may be possible to frame climate migrants under the protection provided by the principle of “ non-refoulement ” at least until the international community codifies a specific Convention that defines the rights due to persons definable as “climate migrants”. However, as mentioned, in order to evaluate if a “climate migrant” can be protected under the principle of “ non refoulment ”, certain conditions must be met, hence why it is necessary to verify this possibility on a case-by-case basis. A fundamental understanding into the standards that must be met in order for the mentioned principle to operate is offered by the Tetiota v. New Zealand case (5), the first climate-change-induced environmental case brought to the Human Rights Committee. Such case is important in that, even if Mr. Tetiota did not see his petition granted, it was the first time in which an international human rights body recognized the link between severe climate change-induced environmental conditions and the potential violation of the right to life, in the context of “ non-refoulment” and migration (1).

This notwithstanding, as mentioned, the case’s jurisprudence offers insights into the standards that must be met in order to trigger the principle of “ non-refoulement ” and, therefore, provide international protection to people at risk of losing fundamental rights due to climate change. A case-by-case approach is significant in the context of climate change-related threats to life in that in such cases are subjected to the evaluation concerning if the situation falls under the “ non-refoulement ” principle. Such ascertainment is exceedingly arduous to establish given that disasters caused by the environment’s changing conditions are widespread and indiscriminate and make it difficult to determine if general environmental aggravating conditions constitute a threat to a person’s right to life.

As a matter of facts, to understand if certain standards necessary to guarantee the principle of “ non-refoulment ” to a “climate migrant” are met, a multiplicity of criteria must be assessed. It is important to evaluate if the country of origin of the climate migrant has adopted measures and is implementing concrete actions in order to mitigate the effects of environmental changes. First and foremost, if there are monitoring mechanism able to evaluate the imminence of potential climate-related calamities, and if such country has a mitigation plan ready to execute when a natural disaster jeopardizes the lives of its citizens. Every country should have a strategy ready to be implemented when a natural disaster strikes the lives of its citizens endangering them. Certainly, if such conditions are not met, then climate migrants, when faced with imminent risk of loss of life or proof of inability to provide for their basic needs if they were to return to their country of origin, then the principle of “ non-refoulement ” must be applied. This notwithstanding, the international community must hasten to adopt a Convention establishing the rights of climate migrants, as well as the cases in which people who choose to leave their country for climate-related reasons can receive protection under international law.

References:

• https://jia.sipa.columbia.edu/online-articles/non-refoulement-human-rights-perspective-environmental-migration-small-island
•   https://www.unhcr.org/4ca34be29.pdf
• https://publications.iom.int/system/files/pdf/meclep_glossary_en.pdf?language=en
• https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf
• http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2015/20150720_2015-NZSC-107_judgment.pdf

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Implementation of Non-Refoulement Principle Assignment Sample

• Subject Name : Community Services

Community Services – The 1951 Refugee Convention

All human rights are inherent rights, irrespective of colour, gender, country, race, language, religion, or any other status. Human rights include the rights to life and liberty, freedom from slavery and torture as well as freedom of thought and expression. The word 'Man's Rights' is not new, but the meaning is as old as mankind. These are basic rights for all since they concern equality and dignity and eventually contribute to social welfare. Maintaining the dignity of a person is vital for social stability, as abuse of the person can have major consequences for individuals and society as a whole. The State maintains the framework of social order by imposing various laws under which a well-organized social life is not possible. It has been recognized as the primary goal of statehood for defending human rights and freedoms.

The Australian government is responsible for safeguarding the human rights of an asylum-seeker and refugee arriving in Australia, irrespective of arrival or visa-free arrival.

As a party to the Convention on Refugees, Australia has voted not to return to a country where people who satisfy the requirements of the UN refugee will be threatened by life or freedom. This is known as the concept of non-refoulment.

Australia is committed, under the International Treaty on Civilian and Political Rights (ICCPR), the Convention against Torture (CAT), and the Convention on the Rights of the Child (CRC), not to return persons at real risk for violating human rights under these conditions to third countries and not send individuals to third countries where they are at real risk of violating their human rights under these circumstances. This also extends to people who have not been detected as refugees (Karlsen, 2016).

Furthermore, in the case of asylum seekers and refugees in Australia (or elsewhere in Australian jurisdiction), the Government of Australia has obligations under various international treaties to ensure that their human rights are respected and secured. These Treaties include the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the Convention against Torture, and the Convention on the rights of children. The right to be held not unfairly contained certain rights (Acer & Byrne, 2017).

Ever since at least the early 90s, Member States have shifted responsibility to 'protected third countries' for reviewing such application for asylum. This implies that they did not feel a legal duty to review the applications lodged there within their territory. Other countries are more hesitant to give refugees permanent asylum. Australia was the first country to permanently break the ranks by giving the accepted refugees temporary security visas. The Refugee Convention of 1951 does not apply to asylum procedures or the State responsible for asylum procedures. It was often believed that the country in which the request was submitted was responsible for determining the merits of the claim (Gil-Bazo, 2015). The key problem is, of course, the concept of "security," which should include a minimum degree of physical security and the preservation of human rights of the refugee. Peter Bergen also writes that the concept of security should include ensuring access to equal asylum procedures. He said the definition of refugee in 1951 was not interpreted consistently, and in one country, but not in another, a person could be recognized as a refugee. Inurement applies to 1951 as amended by the Protocol of 1967, the Convention on the Status of Refugees. It allows Australia explicitly to apply domestic legislation that establishes border integrity so that individuals escaping persecution are covered for particular reasons. Because of considering children in detention for human rights, the Refugee Convention makes the Refugee Convention instantly applicable (Fiske, 2016). The Convention on Refugees of 1951 says nothing about which state to protect, which refugee at which point. State concerns for the safety of refugees go far deeper than asylum/admission. The lack of security in the international refugee arrangements and the lack of explicitly assigned obligations between States have a direct relation (Hollenbach, 2016).

Numerous attempts have been made to create a territorial asylum right. There has been no further effort to establish a right since then. Under international law, refugees are not entitled to claim asylum. The concept of non-refoulment, now considered to be customary international law, remains binding for Nations. Asylum seekers should not be sent back to countries where the persecution exists until it has been declared that they are not refugees, Peter Bergen writes (Phuong, 2005). The draught Convention was not ratified by the United Nations Conference on Territorial Asylum in Geneva in 1977.

There is no requirement to offer asylum under international law. The refugee ban applies to all refugees already on the ground. Some countries disagree with this view of the non-refoulment concept. The key challenge is that every state can take the view that refusal at the border is legally lawful under international law. The consequence will be a refusal to admit the refugee to either country (Syahrin, 2017). This is generally referred to as the "in-orbit refugee," and is referred to as the "in-orbit refugee." The United States Supreme Court claimed in 1993 that the concept extends not only to those who are refused entry to the border but only to refugees within State territory. This does not necessarily lead to a return to a country in which the refugee would be fearful of persecution and thus not necessarily lead to retreat. The 1951 Convention on refugees indicates that the provisions only apply for as long as the fear of persecution is well established. As a result, the asylum state is again free, once such a fear ends, to decide the status of the individual concerned as regards immigration (Joly, 2016). Once again, it may be argued that if states are to practice their obligation of non-refoulment in good faith, they should process the petition for asylum instead of moving it to a third State.

Refugee convention is a progressive way to balance the common commitment of States to self-interested immigration regulation with the fact of coercive migration. To retain total control over immigration, governments have understood, since the early part of this century that they have to fulfil entry criteria in an, especially urgent manner. This cannot happen because laws and institutions have little to do with the desperate ingenuity of people escaping extreme harm, and the risk of destruction to these larger control policies is risked. The refugee law legitimizes and preserves the viability of the protectionist standard, by creating a subset of citizens who pursue freedom of the international movement.

References for Implementation of Non-Refoulement Principle

Acer, E., & Byrne, O. (2017). How the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 has undermined US refugee protection obligations and wasted government resources. Journal on Migration and Human Security, 5(2), 356-378.

Fiske, L. (2016). Human rights, refugee protest and immigration detention. London: Palgrave Macmillan.

Gil-Bazo, M. T. (2015). Refugee protection under International Human Rights Law: From non-refoulement to residence and citizenship. Refugee Survey Quarterly, 34(1), 11-42.

Hollenbach, D. S. (2016). Borders and duties to the displaced: Ethical perspectives on the refugee protection system. Journal on Migration and Human Security, 4(3), 148-165.

Joly, D. (2016). Haven or hell? Asylum policies and refugees in Europe. Springer.

Karlsen, E. (2016). Refugee resettlement to Australia: what are the facts?

Phuong, C. (2005, May). Identifying States’ responsibilities towards refugees and asylum seekers. In research forum for the International law: Contemporary problems, Geneva.

Syahrin, M. A. (2017). The Implementation of Non-Refoulement Principle to the Asylum Seekers and Refugees in Indonesia. Sriwijaya Law Review, 1(2), 168-178.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Community Services Assignment Help

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Bot or Not? Lessons on Using AI in the Classroom

• Through prompt engineering exercises, students discover how to craft the types of questions that will return helpful answers.
• Non-native speakers benefit from AI tools that enable them to communicate more clearly and confidently.
• Students learn that today’s technology can still be limited, unethical, biased—or simply wrong.

  Artificial intelligence (AI) tools are playing an increasingly prominent role in both the classroom and the workplace. Such tools include large language models (LLMs), which learn from and generate text, as well as robotic process automation tools such as UiPath , Appian , and MuleSoft .

Most universities are exploring the best ways to take advantage of these powerful new technologies. For instance, several years ago, one school used AI to create an experimental teaching assistant that provided automated responses to hundreds of basic questions that students posted about coursework in an online forum—and the students couldn’t even tell they weren’t interacting with a human TA.

Because so many students, faculty, and staff are already using AI tools, it’s essential for institutions of higher learning to develop parameters for what constitutes acceptable usages on their campuses. At Baruch College of the City University of New York, we recently drafted guidelines specifying that students can use generative AI tools such as OpenAI’s ChatGPT , Microsoft’s Copilot , or Google’s Gemini . However, such usage is only allowed when the instructor permits it, when students cite AI as a source, and when students show exactly how they used the technology.

At Baruch’s Zicklin School of Business, we know that if students learn to use AI in the classroom, they will have a better chance of knowing how to leverage it in the workplace. Here, four Zicklin instructors share their insights about what AI can do, how it can be used, and what limitations still exist.

AI Helps Students Think Critically

Yafit Lev-Aretz, an assistant professor in the Zicklin School’s law department, gives students opportunities to experiment with GenAI in her undergraduate business law class. During a recent take-home midterm exam, Lev-Aretz posed a question, then provided an answer that had been generated by AI. By itself, she estimated, that answer would score 60 out of a possible 100 points.

Lev-Aretz had students devise more precise prompts that would return more detailed answers and earn better grades. “I did not ask to see their prompts or provide feedback on them,” she explains. “My goal was simply to encourage them to use this tool, which I think can be extremely helpful in their thinking and writing process.”

She adds, “This engagement and willingness to experiment are precisely the learning outcomes I aim to foster.”

AI Can Be a Source of Information…

AI can quickly provide supplemental knowledge on an almost limitless number of topics, as Curtis Izen tells students in his undergraduate computer information systems honors course. Izen is a senior information specialist in Baruch’s Computing and Technology Center and an adjunct lecturer in the Paul H. Chook Department of Information Systems and Statistics.

AI can quickly provide supplemental knowledge on an almost limitless number of topics, as Curtis Izen tells his undergraduate students.

“For example, if students don’t know about database management systems, they can ask ChatGPT to explain what a database management system is and provide some examples,” he says.

Instructors might find GenAI equally useful, Izen notes, especially when they’re creating course materials. “They can feed it a paragraph of information and ask it to generate questions,” he says. “It can also change the type of question—say, from a multiple-choice question to a fill-in-the-blank one, or an open-ended question.” It can even help write syllabi, he adds.

…But Only With The Right Prompting

AI can help users reduce gaps in their knowledge— if they know how to use it properly, says Danny Park, an adjunct lecturer in the Chook department. Before students begin his graduate course on business analytics and artificial intelligence, Park provides them with a list of prompts they can feed to ChatGPT to bone up on certain topics.

He hand-feeds them the prompts to show them that only properly crafted questions will return helpful answers. Unless users are effective at prompt engineering, Park explains, they might find themselves illustrating the truth of the old programming mantra of “garbage in, garbage out.”

Prompt engineering is also a key part of the marketing analytics MBA courses taught by Joshua Moritz, a lecturer in the Allen G. Aaronson Department of Marketing and International Business.

“Because AI is pretty new, we need to learn how to ‘train’ AI to avoid generating bad results,” Moritz says. “So, students need a stable, accurate benchmark to know if their answers are going to be right or wrong.”

To that end, Moritz first has students use Microsoft Excel to solve a basic statistical problem—say, creating a linear regression from raw data points. Next, students feed the same data into ChatGPT, making requests and asking questions to see if they can generate the same results as they did in Excel. Students keep tweaking the prompts until the ChatGPT answer matches the Excel answer, which Moritz refers to as “the truth.” Once students get the prompts right, they can save them and use them repeatedly to solve the same simple statistical problems.

“Because AI is pretty new, we need to learn how to ‘train’ AI to avoid generating bad results.”—Joshua Moritz

For this exercise to work, each student must pay a monthly 20 USD fee for the 4.0 edition of ChatGPT, because the free version doesn’t do statistical analysis. “Students can’t share accounts because people write and speak differently. Sometimes small differences such as using ‘the’ versus ‘a’ or making a change in punctuation can generate different answers, believe it or not,” Moritz says.

Even when the prompts are exactly the same, ChatGPT sometimes generates a slightly different and therefore incorrect answer, Moritz says. “I am not clear why this happens,” he admits. “The technology is improving, but it’s not 100 percent. If this were medicine or cybersecurity, getting one answer wrong out of a hundred would not be OK. But this is marketing—you might lose money, but no one will die.”

AI Aids Non-Native Speakers

One advantage of allowing students to use AI during assignments, says Lev-Aretz, is that it reduces language barriers for those who are not native English speakers. That’s a critical consideration for a school like Baruch, whose students hail from more than 150 countries and speak more than 100 languages.

Izen agrees. For some course assignments, he has students record comments asynchronously through voiced-based tools such as the commercial product VoiceThread . (A similar product, Vocat , is an open-source option that was developed at Baruch.) He has found that his students’ public speaking skills improve the more they use the tool.

“Some of my students’ communication was so poor that if I called on them in class, they wouldn’t answer, or they’d mumble and speak so softly I couldn’t understand them,” Izen says. “But now that I’ve been using VoiceThread for several years, I notice that their verbal communication and confidence improve by the end of each course.”

But There Are Downsides

While AI offers enormous benefits to students, it also carries potential risks. One is that it could interfere with the learning process if students use it to complete homework assignments instead of doing the work themselves. Therefore, instructors need to devise strategies to mitigate the possibility that students are merely plagiarizing from AI.

That’s one reason Izen uses VoiceThread in his classrooms. After students make video or voice recordings, they share the files on the learning management system, where VoiceThread is integrated.

Because students must provide answers in their own words and post their sources in text comments, Izen can use these recordings to check whether his students are grasping the basic concepts they might have asked AI to explain. If they are describing their efforts with algorithms or computer programs, students must verbally explain their codes or formulas for their submitted assignments.

AI Cannot Be Blindly Trusted

In addition, AI poses legal and ethical risks, which means that neither students nor business leaders can simply accept the answers AI tools provide. Baruch instructors make certain students are aware of four risks in particular.

1. AI is limited in what it can do. Park notes that many users seem to ignore the word “artificial” in the phrase “artificial intelligence”—they start to believe AI is superior to human ingenuity, creativity, and wisdom. But he points out that, unlike humans, LLMs cannot provide value that is greater than the quality of the material they were trained on.

“People use ChatGPT as if it were a search engine, but in most cases, they’d be better off just using Google instead.”—Danny Park

2. Legal issues abound. It is not always clear exactly how generative AI products have been trained. In an interview published by The Wall Street Journal in April 2024, OpenAI’s chief technology officer claimed she didn’t know how Sora, the company’s text-to-video generator, had been taught. In a subsequent interview with Bloomberg, YouTube’s CEO said that if Sora had been trained on YouTube, that would violate his company’s terms of service.

Meanwhile, a slew of newspaper publishers, from The New York Times to the Chicago Tribune to California’s Orange County Register, are suing Microsoft and OpenAI for reusing their articles without permission.

Similarly, actress Scarlett Johansson might take legal action against OpenAI for creating a ChatGPT voice that sounds like the character she created in the 2013 film “Her”—even after Johansson had declined the offer to voice the AI assistant herself.

3. AI perpetuates harmful biases. Facial recognition technology has been accused of discrimination against Black and brown people. Ask Freepik —an image bank website that includes an AI image generator—to create a photo of a CEO, and you’ll get nothing but images of white men. A query for an image of a nurse gives you white women only.

4. AI is simply wrong sometimes. Recently, Google had to disable its Gemini text-to-image feature because it generated historically inaccurate images of popes who were female and American Founding Fathers who were Black.

“People use ChatGPT as if it were a search engine, but in most cases, they’d be better off just using Google instead,” Park comments. He adds that his teenage son once failed a math quiz because he plugged the questions into a chatbot, which produced incorrect results, and his son didn’t check the answers.

AI Is Part of the Future

Despite the challenges it presents, AI will be an integral part of tomorrow’s workplace. That’s why the Zicklin School has gone beyond integrating AI into the classroom. We’ve also developed programs—including an undergraduate AI minor and a graduate-level AI certificate—that are designed to help students leverage technology once they’re on the job. Because AI potentially impacts all business disciplines, we collaborate extensively with philosophy professor Elizabeth Edenberg, an expert on technology and ethics, as we develop these programs.

Armed with this information, our graduates will know how to use AI tools in ways that are effective, useful, ethical, and trustworthy—which will give them and their companies a competitive advantage.

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Assignment On THE NON-REFOULEMENT PRINCIPLE

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THE NON-REFOULEMENT PRINCIPLE:

Introduction:

Non-refoulement non-refoulement is a principle of the international law, i.e. of customary and trucial Law of Nations which forbids the rendering a true victim of persecution 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 of refugees from being returned to places where their lives or freedoms could be threatened. 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 of persons, non-refoulement refers to the generic repatriation of people, generally refugees 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 into an area, usually their home-country, where the person might be again subjected to persecution.

The principle of "refoulement" was officially enshrined in the 1951 Convention Relating to the Status of Refugees and is also contained in the 1967 Protocol and Art 3 of the 1984 Torture Convention. The principle of non-refoulement arises out of an international collective memory of the failure of nations during World War II to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime. Today, the principle of non-refoulement ostensibly protects recognized refugees and asylum seekers from being expelled from countries that are signatories to the 1951 Convention or 1967 Protocol. This has however not prevented certain signatory countries from skirting the international law principle and repatriating or expelling bona fide refugees into the hands of potential persecutors.

Tanzania's actions during the 1994 genocide in Rwanda have been alleged to have violated the nonrefoulement 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 who were fleeing genocidal violence. In 1996, before Rwanda had reached an appropriate level of stability, around 500,000 refugees were returned to Rwanda from Zaire.

One of the grey areas of law most hotly debated within signatory circles is the interpretation of Article 33. Interdiction of potential refugee transporting vessels on the 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 country or simply within the power of a country to trigger the right against refoulement. Since 1951, 140 states have signed the Convention, officially recognizing the binding principle of non-refoulement expressed therein.

 Legal basis of non-refoulement

Non-refoulement has been defined in a number of international refugee instruments, both at the universal and regional levels.At the universal level the most important provision in this respect is Article 33 (1) of the 1951 Convention relating to the Status of Refugees, which states that: "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."

This provision constitutes one of the basic Articles of the 1951 Convention, to which no reservations are permitted. It is also an obligation under the 1967 Protocol by virtue of Article I (1) of that instrument. Unlike some provisions of the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a Contracting State. As to the words "where his life or freedom would be threatened", it appears from the travaux préparatoires that they were not intended to lay down a stricter criterion than the words "well-founded fear of persecution" figuring in the definition of the term "refugee" in Article 1 A (2). The different wording was introduced for another reason, namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but 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 UN Declaration on Territorial Asylum unanimously adopted by the General Assembly in 1967 [res. 2312 (XXII)]. "No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution."

At the regional level the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 gives expression in binding form to a number

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 at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2." Again, Article 22 (8) of the American Human Rights Convention adopted in November 1969 provides that:

"In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions."In the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 June 1967, it is recommended that member governments should be guided by the following principles: They should act in a particularly liberal and humanitarian 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 of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would 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 Refugees adopted by the Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966, states that:

"No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory."

In addition to statements in the above international instruments, the principle of non-refoulement has also found expression in the constitutions and/or ordinary legislation of a number of States. Because of its wide acceptance, it is UNHCR's considered view, supported by jurisprudence and the work of jurists, that the

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 on the part of States that the principle has a normative character. As outlined above, the principle has been incorporated in international treaties adopted at the universal and regional levels to which a large number of States have now become parties. Moreover, the principle has also been systematically reaffirmed in Conclusions of the Executive Committee and in resolutions adopted by the General Assembly, thus demonstrating international consensus in this respect and providing important guidelines 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 Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Similarly, Art. 7 of the International Covenant on Civil and Political Rights has been interpreted as prohibiting the return of persons to places where torture or persecution is feared. In the regional context, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been interpreted by the European Court of Human Rights as implicitly prohibiting the return of anyone to a place where they would face a "real and substantiated" risk of ill-treatment in breach of the prohibition of torture or inhuman or degrading treatment or punishment. While Art. 33 (2) of the 1951 Convention foresees exceptions to the principle of non-refoulement, international human rights law and most regional refugee instruments set forth an absolute prohibition, without exceptions of any sort.

Beneficiaries:

In the case of persons who have been formally recognised as refugees under the 1951 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 is only of a declaratory nature. The absence of formal recognition as a refugee does not preclude that the person concerned possesses refugee status and is therefore protected by the principle of non-refoulement. In fact, respect for the principle of non-refoulement requires that asylum applicants be protected against return to a place where their life or freedom might be threatened until it has been reliably ascertained that such threats would not exist and that, therefore, they are not refugees. Every refugee is, initially, also an asylum applicant; therefore, to protect refugees, asylum applicants must be treated on the assumption that they may be

refugees until their status has been determined. Without such a rule, the principle of non-refoulement would not provide effective protection for refugees, because applicants might be rejected at the frontier or otherwise returned to persecution on the grounds that their claim had not been established. That the principle of non-refoulement applies to refugees, irrespective of whether they have been formally recognised as such - that is, even before a decision can be made on an application for refugee status - has been specifically acknowledged by the UNHCR Executive Committee in its Conclusion No. 6 on Non-Refoulement. And indeed, where a special procedure for the determination of refugee status under the 1951 Convention and the 1967 Protocol exists, the applicant is almost invariably protected against refoulement pending a determination of his or her refugee status.

There are, however, a number of situations in which the observance of the principle of non-refoulement is called for, but where its application may give rise to difficulties. Thus the person concerned may find himself in a State which is not a party to the 1951 Convention or the 1967 Protocol, or which, although a party to these instruments, has not established a formal procedure for determining refugee status. The authorities of the country of asylum may have allowed the refugee to reside there with a normal residence permit or may simply have tolerated his or her presence and not have found it necessary formally to document his or her recognition as a refugee. In other cases, the person concerned may have omitted to make a formal request to be considered a refugee.

In situations of this kind it is essential that the principle of non-refoulement be scrupulously 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 UNHCR's mandate or under the 1951 Convention or the 1967 Protocol, is declaratory in nature, and, second, that the principle of non-refoulement is a norm of customary international law.

Territorial application:

Since the purpose of the principle of non-refoulement is to ensure that refugees are protected against forcible return to situations of danger it applies both within a State's territory and to rejection at its borders. It also applies outside the territory of States. In essence, it is applicable wherever States act.

It has been argued that the principle of non-refoulement is not binding on a State outside its own national territory, so that a Government may return refugees

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, of the 1951 Convention and its 1967 Protocol, as well as of international refugee law generally. No such territorial limitation applies, for instance, to UNHCR's mandate to provide international protection to refugees. In fact, UNHCR's position on interdiction-at-sea is that this is inconsistent with the international refugee protection regime, especially since, among those leaving, there may be people who have concerns about their physical security and safety. There must be a possibility for 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 be certain legitimate exceptions to the principle. Article 33 (2) of the 1951 Convention provides that the benefit of the non-refoulement principle may not be claimed by a refugee 'whom there are reasonable grounds for regarding as a danger to the security of the country ... or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country'. This means in essence that refugees can exceptionally be returned on two 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 the community. The various elements of these extreme and exceptional circumstances need, however, to be interpreted.

With regard to the 'national security' exception (that is, having reasonable grounds for regarding the person as a danger to the security of the country), while the evaluation of the danger remains within the province of the national authorities; the term clearly implies a threat of a different kind than a threat to 'public order' or even to 'the community'. In 1977, the European Court of Justice ruled that there must be a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society It follows from state practice and the Convention travaux preparations that criminal offences without any specific national security implications are not to be deemed threats to national security, and that national security exceptions to non-refoulement are not appropriate in local or isolated threats to law and order.

Non-refoulement and the safe third country concept:

The following paragraphs set out some basic considerations in view of the importance of the safe third country concept in the context of the discussion of minimum 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 to asylum-seekers is the difficulty of determining whether another country in which an asylum-seeker can reasonably be expected to request asylum, will, in fact, accept responsibility for examining his or her request and, if appropriate, granting asylum. UNHCR is aware of a number of instances where asylum-seekers have been refused admission and returned to a country through which they had passed, only to be summarily sent onwards from there, without an examination of their claim, either to their country of origin or to another, clearly unsafe country. Where asylum-seekers are returned to third countries, this needs to be implemented with due regard to the principle of non-refoulement. Without the prior consent and the co-operation of the country to which an asylum-seeker is returned, there is a grave risk that an asylum-seekers claim may not receive a fair hearing there and that a refugee may be sent on, directly or indirectly, to persecution, in violation of the principle of non-refoulement and of Article 33 of the 1951 Convention. In UNHCR's view, the proper application of the safe third country concept requires identifying a country that will actually accept responsibility for examining the asylum request and hence ensure that refugees and asylum-seekers receive 'somewhere' the protection they require.

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, as fundamental to refugee law. Since its expression in the Refugee Convention in 1951, 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 as the idea that ‘no refugee should be returned to any country where he or she is likely to face persecution or torture’. A hypothetical example could be useful to clarify. At its most basic level, the principle prevents the government of State A from returning refugees from State B to State B, where there is a valid concern that they could be in danger should they be returned. Debate surrounds many aspects of

this principle, including whether or not a refugee has to be found on the territory of State A, or can merely be attempting to enter, and also what standard should be used to judge what danger warrants not returning the refugee. Prior to the 1930s this principle did not exist at international law. In order to understand the principle it will be useful to look at the circumstances and reasons surrounding its development. During the first half of this century the idea that it was fundamentally wrong to return refugees to places where they would clearly be in danger was mentioned occasionally by states in agreements or statutes, or was evident in the practice of some states. Although by 1905 it had been enshrined in a UK statute that refugees with a fear of persecution for political or religious reasons should 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 at international 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 an impetus for a thorough examination of the rules relating to refugees. Prior to this time states had been very aware of the extent to which consent to rules, especially international rules, relating to refugees, would impact on their sovereign right to determine who was allowed to reside within their boundaries. Although many appeared to have accepted that there was a moral duty to accept refugees, and not return them, this was done largely on an ad hoc basis. However, in the first few years 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 not be returned when they had ‘valid objections’. This concern, prompted largely by the huge number of refugees in Europe following the war, eventually led to the drafting of the United Nations Convention Relating to the Status of Refugees, which was signed in 1951.

1951 Refugee Convention

The Convention itself deals with various aspects of law relating to refugees, and remains the primary instrument of refugee law. It was intended to consolidate the various international laws and practices impacting on refugees and asylum-seekers. It was also recognized that certain countries bore a much bigger burden than others with respect to the refugee flows, therefore it was imperative that an international approach to the problem be taken. The Convention defined who exactly was to be viewed 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 the opportunity to remove the geographical and temporal restrictions present in the

original document. For our purposes Article 33 of the Convention is of primary relevance. The first paragraph of this article states that:

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. Although this was intended to be an absolute right, states remained concerned about the erosion of their sovereignty that this could create. Therefore a second paragraph was tacked on, providing that the right of non-refoulement could not be claimed by someone who was seen as a risk to the security of the country, or who had been convicted of a ‘particularly serious crime’.

Since 1951, 137 states have signed the Convention, thereby accepting the principle of non-refoulement expressed therein. However problems have arisen regarding the interpretation of Article 33. Debate continues to surround the issue of whether or not a refugee must be inside the state in order for the right to accrue to them. If so then states would be perfectly within their rights to turn away asylum-seekers at the borders or ships at sea. There was also discussion as to whether a refugee had to meet the strict requirements of the Convention before they could be granted the right of non-refoulement. However, through the work of the United Nations High Commissioner on Refugees, and general state practice, it has been accepted that Article 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 being enshrined in international law. Subsequently numerous treaties and conventions, dealing either directly or indirectly with the rights of refugees, have repeated the principle. In some cases it has been a direct transfer of the wording of the Convention, while in others the principle has been broadened somewhat. As the issues of human rights and regional organization continue to gain strength in international discussion, these instruments will become increasingly important. They are also extremely relevant as they illustrate the various options open to both refugees 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 be expelled from that state without due process. However, this rule does not have to

be followed if national security is at stake. The article does not mention refugees specifically, and only refers to aliens ‘lawfully’ within a state. Therefore the article’s application is somewhat limited. It is important, though, in that it specifies what action must be taken before anyone can be forcibly expelled. Article 7 of the ICCPR is also relevant as it protects against torture. The Human Rights Committee has taken this provision into account when dealing with cases of expulsion and extradition.

The relationship between torture and refugees is even more relevant when the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is considered. Article 3(1) of this Convention provides that ‘no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. The article also provides that authorities must look at whether there is a consistent pattern of serious human rights violations in the country in question.  As one writer has pointed out, any state returning refugees to a state where torture is being practiced would become an accomplice to the crime of torture. Article 3(1) provides broader protection than the 1951 Convention in that it is an absolute right; however, its effect is restricted in that it only applies to situations involving torture.

On a regional level, Africa is seen as leading the pack with regard to refugee protection by virtue of the Organization of African Unity Convention Governing the 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 as limited as its equivalent in the UN Convention. There is no requirement that there be a ‘fear of persecution’, and the five reasons for leaving the previous state are greatly expanded. Furthermore, there are no situations in which a breach of the rule will be accepted. Refugee crises on the African continent are common; therefore it was essential that there was a convention which applied specifically to Africa. It is interesting to note that the OAU Convention, unlike many other instruments, explicitly recognizes that particular countries will have to call for help when they are 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. Article 3 of the European Convention on Human Rights prohibits torture or other cruel, inhumane or degrading treatment, and therefore provides similar protection for refugees as the Torture Convention. However, the European Convention differs in

some respects. The European Commission on Human Rights has used Article 3 in order to deal with the non-refoulement issue, which is not itself specifically mentioned in the Convention. Also, the right which the Convention creates (to be protected from torture) is absolute and non-derogable, as is the right to be protected from refoulement in the OAU Convention.

There have also been several European Union instruments dealing specifically with the problem of asylum and refugee flows. One example is the Council of Europe’s Resolution on Minimum Guarantees for Asylum Procedures 1995. Article II (1) provides that the member state’s asylum procedures will fully comply with the Refugee Convention 1951, and especially with the non-refoulement provision. Furthermore, Article II (2) states that a potential refugee will not be expelled until a decision on their status has been made. Despite the abundance of agreements dealing with refugees produced by the EU, many commentators remain concerned about the direction Europe is taking with regard to their international duties.

Another regional agreement dealing with refugees is the American Convention on Human Rights, which in Article 22(8) deals with non-refoulement. The article states that ‘in no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions’. This provision seems closest to the UN Convention in that it gives specific reasons why the ‘alien’ would be in danger when returned. Although the provision itself does not state that there are situations in which the rule can be breached, Article 27 allows derogation in certain circumstances of war or emergency. It has been suggested that this provision could possibly be interpreted to allow derogation during massive refugee crises, which would seem to defeat the purpose of the provision.

The non-refoulement principle has clearly undergone substantial development since its emergence as a vague morality-based rule. Not only is it described as the foundation of the foremost international legal instrument relating to refugees, but it has also been transplanted into other treaties. Although this indicates the importance of non-refoulement internationally, its expression in so many different ways and in so many different instruments, also serves to undermine its effectiveness.  As things currently stand, refugees are in a position to shop around to see which state has the most obliging refugee laws and in particular the widest interpretation of their non-refoulement obligations. This problem, as well as others caused 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

attained the status of a customary rule. In the following chapter, I will attempt to elucidate state practice in this area, before moving on to reach some solid conclusions 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 is fairly 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 customary status we must look at examples of where states have had to deal with refugee issues, specifically cases involving refoulement. This will also highlight some of the key challenges which face the principle of non-refoulement today, both from a refugee and state perspective. For the purposes of this analysis it is useful to divide state practice into two groups; the first looks at how states react to mass influxes of refugees, while the second is concerned with the individual determination procedures of states on a day-to-day basis. I will look not at every state, but rather at a few examples which have raised important issues for the law relating to refugees.

Situations of Mass Influx:

The problem of huge numbers of refugees pouring out of a country or countries at one time, usually as a result of war or ethnic cleansing, is not a new one. Indeed it was the major refugee crises of WWII which prompted the international community 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 social or ethnic demographic of a country or region. They also place states in a very difficult position. They are faced with a problem which they are usually bound by law to deal with. Often, however, they are either financially or socially unable to do so. In this section I will look at three examples of such crises; the exodus of Rwandan refugees, Liberian ships fleeing civil conflict, and the Macedonian reaction to large numbers of Kosovo’s spilling over the border as a result of ethnic cleansing.

IMPACT OF STATE PRACTICE ON NON-REFOULEMENT:

We have seen in our examination of state practice that there are many examples of the non-refoulement principle being breached, or at the very least, endangered. So does this mean that states no longer adhere to the non-refoulement principle? Has the change in attitude towards asylum-seekers been so severe as to make redundant

one of the founding principles of refugee law? Although this is the picture painted by 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 not rob it of its character as international law. Furthermore the way in which the countries above have dealt with the principle illustrate that it does have the status of customary international law. However, what is equally clear from the examples is that in order for the principle to be of practical use, the parameters of its applicability need to be defined.

A   General customary rule:

It is clearly of grave importance to prove that non-refoulement has gained the status of custom. If we can show we have a customary rule then the problems caused by inconsistent implementation of this principle become less significant. Numerous commentators have examined the principle of non-refoulement to establish whether it is now custom. Their results have been mixed. Professor Goodwin-Gill, after a detailed analysis of arguments for and against, reached the conclusion that “there is substantial, if not conclusive authority that the principle is binding on all states, independently of specific assent”. His view seems to have been accepted by many commentators since then. Furthermore, the United Nations High Commissioner on Refugees believes that non-refoulement has gained customary status, and may even be jus cogens. Also, in 1954 when negotiating the Convention on the Status of Stateless Persons, the parties did not find it necessary to include a non-refoulement provision as they saw Article 33 as a ‘generally accepted principle’. However, although many acknowledge that the non-refoulement principle is at least in part accepted as custom, concerns remain about the exact parameters of this rule. This concern is a common one. Boed points out that although states may have a duty to accept refugees in general, the rules may be different in respect of a mass influx. Other writers have concluded that although there is a customary norm that states must provide at least temporary safe-haven for 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 the opinions of academics, we are in a fairly good position to ascertain whether or not non-refoulement has customary status. On the face of it the state practice examined in Chapter III is evidence of a uniform disrespect for the non-refoulement principle. However, two further factors must be considered. Firstly, only breaches of 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 still arguable that the principle is custom. This becomes clear when one looks at the

behaviour of the states seeking to erode or breach the non-refoulement principle. In none of these cases did a state come outright and say ‘we have no duty under any circumstances to accept refugees’. Instead they said, ‘we are unable to accept these particular refugees because…’. The fact that they offered justifications for their actions supports the argument that they knew what they were doing was in breach of international law.

Firstly, we have the mass influx example. All the states involved in closing borders or turning back ships gave some reasons for their actions. Tanzania, for example, cited national security, regional tension and environmental damage as reasons why it could accept no more refugees. Even the Tampa incident saw Australia providing at least some justifications for its actions. Early on in the crisis Australian Prime Minister stated that “our capacity to take unauthorised arrivals is at breaking point". Secondly, those countries who have implemented restrictive policies towards asylum-seekers have never attempted to completely rebut their non-refoulement obligations. On the contrary they continue to reinforce the importance of the principle, as this statement by the US delegate to a 1998 UNHCR meeting illustrates:

We underscore the fundamental importance of the principle of non-refoulement, which prohibits the expulsion and return of refugees to countries or territories where their lives or freedom would be threatened.

But to return to the Tampa example for a moment, there was never any mention in the 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 the ship, but a reading of the news reports would suggest that there was no legal obligation on Australia. Even the UNHCR was quoted as saying that the legal situation surrounding the boat people was unclear. Taking this into account it is difficult to agree with the UNHCR’s view that non-refoulement has reached the level of jus cogens. Rules such as the law against genocide have this status, as they are seen as ‘fundamental’, ‘inalienable’ and ‘inherent’ to the international legal system. The increasing violations of non-refoulement, and the unclear nature of the rule, undermine its claim to be a peremptory norm. However, this does not necessarily mean that there is no customary principle of non-refoulement. It is simply evidence of the fact that the parameters of the rule need clarification.

Defining the Parameters of Non-Refoulement

Having therefore concluded that we have a customary rule, we must be able to state 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 mass influx 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 being reviewed and in some circumstances, eroded. It is necessary, therefore, to highlight what the exact parameters of the rule are, so that we are clear exactly when and in what way the rule comes into play. The situations discussed in Chapter III illustrate four 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 Exceptions

As was mentioned earlier, states often have very good reasons for breaching the non-refoulement principle. One can hardly expect, for example, a small state with limited resources, which is already coping with large numbers of refugees, to accept on its own another mass influx. The states discussed in Chapter III all gave justifications for why they simply could not accept any more refugees, or why they had to cut down on the numbers they were accepting. Furthermore, we must also accept the fact that states need to hold discretion to exclude certain persons from invoking the non-refoulement principle. However, what is of main concern is that these justifications and exceptions are in danger of being stretched so far that they begin to make the principle itself redundant.

[Firstly, let us look at what justifications and exceptions are clearly prescribed by international law. As was discussed when we looked at the United States’ interpretation of exceptions, Arts 33 and 1(F) of the Refugee Convention provide that persons guilty of certain crimes or who pose a ‘danger to the security of the country’ cannot claim the benefit of the non-refoulement principle. A state would therefore be justified in returning such an individual to the country from which they came. But what other justifications are legally valid? Professor Goodwin-Gill asserts that ‘national security and public order have long been recognised as potential justifications for derogation’. Also the ILC Draft Articles on State Responsibility provide that a breach of an international law obligation is justified

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 would be classed as an extreme case of necessity? The ‘necessity’ justification is a useful one to illustrate the importance of circumscribing limits to exceptions and justifications.

ILC Draft Article 33 requires that the situation (in our case, refugee influx) must endanger an ‘essential interest’ of the State and place it in ‘grave and imminent peril’. Only then can a state invoke necessity as a justification. Roman Boed has considered in detail the impact of Draft Article 33 on the non-refoulement principle, 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, would fall into the category. Other ‘essential interests’ mentioned were economic stability and environmental protection. He noted, however, that whether something was an ‘essential interest’ would have to be determined on a case by case basis. Boed went on to consider the ramifications of ‘grave and imminent peril’, concluding that this element is also ‘fact-specific’.

So is this a good way to provide states with a ‘safety valve’ should the pressure on them become to much to bear? I would say that it is. The test applied is a fairly strict one. ‘Grave and imminent peril’ implies a rather serious danger. It would be hard to imagine that the Australian government could have justified the refusal of the 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 both elements of the test are dependent very much on the particular fact situation could be seen to leave too much room for movement. However, it would be impossible to envisage every possible circumstance which would constitute ‘grave and imminent peril’, for example. Obviously it must be required that any claim of necessity be made in good faith, and not simply to avoid the financial burden or political backlash which acceptance of refugees may create. This test appears to strike a reasonable balance, so as to ensure that refugees are protected while not imposing too harsh a responsibility on those states accepting them.

Moving on to look at the exceptions to the non-refoulement principle, there is a concern 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 to circumvent their obligations. It is arguable that the United States comes dangerously close to doing this through the enactment of the IIRAIRA. The problem is that the provisions themselves leave wide room for interpretation. As

one commentator has noted, the Refugee Convention gives no indication of what types 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 the Tampa crisis, "Those boat people are not illegal immigrants, nor refugees, alleged or otherwise. They are pirates, hijackers and thieves".Although this was solely the opinion of a member of the public, official rhetoric also focused on the criminal nature of the asylum-seekers on board the Tampa. This example of pre-judging refugees in order to gain support for a political decision should be of major concern to the international community.

To return to the situation in the United States, the approach taken by the courts and the legislature through the IIRAIRA is also concerning. As Kathleen Keller points out, the way in which the system now works, with a list of crimes being specified as causing danger to the security of the country, means that there is no balancing of the crime with the risk that the refugee could be persecuted if returned. This means there can be a real danger that the non-refoulement principle could be repeatedly breached as a result of this rule. It would therefore seem that the US has in fact gone too far, and could be said to be acting contrary to their international obligations. On the other hand, however, states obviously have an interest in protecting their citizens. The exceptions were purposely included in the Refugee Convention to give both states and refugees protection. However, in order to do this it appears that the exceptions need to be clarified.

Any clarification of these exceptions which takes place in the current political climate is likely to be influenced by the terrorism issue. As was discussed earlier, terrorism and refugees are often seen as intertwined issues. Obviously there could be concerns that persons applying for refugee status who have fled a state known for its use of terrorism, such as a Palestinian, could be in some way linked to terrorism and could therefore be a danger to the community. This indeed appears to have been the approach taken by the US in implementing its anti-terrorist provision, which entirely excludes all members of the Palestinian Liberation Organisation from applying for refugee status. It has been argued, however, that this attempt to protect the United States from terrorists goes too far, and increases the danger of the non-refoulement provision being breached. It therefore seems necessary to consider carefully ways in which any clarification of the exceptions to non-refoulement can adequately protect refugee rights while also protecting the host-state’s population from terrorist attacks.

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