The principle of non-refoulement. Practical usage of the non-refoulement principle - Essay Example

?The principle of non-refoulement Introduction Non-refoulement principle approved in 1951 is being widely discussed by scholars and scientists for determination of the boundaries of its relevant application in the modern international judicial paradigm. This principle belongs to a customary international law and prohibits “the expulsion, deportation, return or extradition of an alien to his state of origin or another state where there is a risk that his life or freedom would be threatened for discriminatory reasons”1. Therefore, in accordance with Article 33 of the 1951 Convention: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion”2. This principle is one of the basic pillars of refugee and immigration law.  There is one special aspect in this principle in accordance with which an alien should not be sent to his country where he can be tortured. This is so-called “jus cogens rule” and this aspect is obligatory for all countries of the international society. Practical usage of the non-refoulement principle The British legal system has been also shaped under the influence of non-refoulement. Judicial bodies and other competent organs act with regards to this principle and regulating system of immigration and asylum is worked out with regards to the influence of this principle3. The main advantages of this principle are reflected on the example of refugees, to which belong persons who escaped from their countries having a fear of a constant prosecution by competent organs of their country. Another category protected in accordance with this principle is asylum seekers. These are people whose expulsion from the UK would contradict UK’s obligations in the face of the Refugee Convention. Consequently, a refugee intends to get his legal status which will enable him to benefit from various advantages and a wide scope of rights described in the Refugee Convention.4 “To discuss the relevance of the principle of non-refoulement application it is necessary to consider if an individual entered the country on a legal basis or not”5. The main advantage available for all persons is the fact that even no valid legal travelling document is required in order to appeal for the country concerning non-refoulement principle. What is required from a person is his ability to prove a danger of a potential persecution, punishment or any other form of human rights degrading in his home country. Moreover, in case his liberties and freedoms are in danger or he may be subjected to an inhuman treatment at home, he should prove it to the country able to protect him in accordance with the non-refoulement principle. A system of proof in comparison with the one applied in criminal law cases is more tolerant. Thus, a principle of proof “beyond reasonable doubt” is discarded and a principle working in the civil law system “balance of probability” is not efficient as well6. Thus, the House of Lords rejected application of “balance of probability” norm in considering refugee cases. Currently, it is enough to prove the slightest possibility for a person to be come through severe punishment or a serious harm. For example, a person may correlate a potential harm with the discriminatory grounds described in the Refugee Convention. Thus, on a discriminatory racial, religious or nationality or any other “membership of a particular social group”7 basis a person may be persecuted. In case a person managed to prove his fair basis for application for the non-refoulement principle, the country would provide him with relevant norms described in the Refugee Convention. Every country may interpret the basic principles of the Refugee Convention basing on its own particular ideas, but still, the main trends are strictly followed by the international community8. Therefore, the following forms of appeal are appropriate for provision responsible bodies and institutions: “an appeal against the decisions of the Border Agency, Immigration and Asylum Tribunals, the Special Appeals Commission another bodies involved in the process”9. Nevertheless, there are certain cases when applicability of non-refoulement principle can be questioned. For example, a person may be socially dangerous. When a conviction or a serious crime occurs, then a person would not have a chance to appeal for the non-refoulement principle. Still, in accordance with a decision made by the Special Immigration Appeals Commission, a person should be guaranteed to be protected from torture. Moreover, not only a person can have a fear to be tortured or persecuted in his home country, it can be also a place of his previous residence or a country that seems intimidating to him. The States should be able to provide asylum to the persons looking for a protection on their territory or event the State is unable to guarantee a person’s protection from being tortured or persecuted he should have a chance to get access to fair asylum procedures10. The State may reject a person a benefit of asylum granting in the following case: “The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”11. Therefore, it is essential to remember that the country should decide whether a person should be considered as refugee and he should not belong to any of two categories listed above. Refugee and asylum seeker status Thus, the country can have numerous complexities when making a decision whether a refugee belongs or not to the asylum seeker or refugee. In accordance with the testing system suggested by James Hathaway and Colin Harvey12, it is relevant to determine for the country if an asylum seeker endangers the national security. The first test is based on seeking for a proof that a refugee may be dangerous. In order to demonstrate so-called “reasonable grounds”, the asylum state should prove the fact of presence of the refugee in the asylum state is dangerous for it. The exclusion of refugee is possible in case a refugee “has been convicted by a final judgment of a particularly serious crime” and he violates national security. Moreover, a refugee may be thrown away from the state in case he is a criminal. For example, he might have committed “rape, homicide, armed robbery, and arson”13, his exemption can be realized only in case of “the final judgment”14. Basically, refugees in the international community are protected by the Convention 1951. A stable character of non-refoulement principle is acclaimed by the Executive Committee of UNHCR (starting from 1977). Furthermore, the General Assemble reflects a positive and a stable attitude to this principle and its nature is considered to be “non-derogated”. In practice, it is relevant to provide the following example of complexities that rose in the result of the principle of non-refoulement application. In the case Jabari v. Turkey15, is the following: it describes the way an Iranian national looked for asylum in Turkey. Nevertheless, his application was believed to be ineffective since a 5-day period for such kind of application has passed. The applicant received a deportation order. The Ankara Administrative Court has also dismissed her refusal application. This case was revised by the ECtHR and there were a number of violations occurred in the processing of applicant’s claims. Moreover, the ECtHR provided the following criticizing basis: though the applicant missed the 5 day term of registration requirement, it was considered as illegal for Turkey to determine this term for registration. Therefore, the ECtHR has claimed that it is relevant to introduce a mechanical and automatic application of an asylum application. Moreover, the country providing the asylum to assess the level of risk to which a person if deported would be exposed. In accordance with the following claim provided by the ECtHR, in case a permanent nature of the potential harm would occur, there is a great need for scrutinized considerations about essential grounds for being afraid of treatment opposite to Article 3 of the ECHR16. “The principles of facilitating the process of refugee status determination are also supported by the Committee against Torture” 17. It is claimed that a State “make the process for granting refugee status more efficient in order to reduce the long period of uncertainty for asylum-seekers and refugees”18. Furthermore, it is relevant to consider that the State should be more concerned about certain regulating procedures directed on considerations about applications for asylum and refugee status, which provide an applicant with an ability to participate in a formal hearing19. Moreover, a support concerning facilitation of the asylum procedures are approved by the Committee focused on the Convention on the Elimination of All Forms of Racial Discrimination: “a State should make asylum procedures more equitable, efficient and unbiased”20. The non-refoulement principle in the international customary law In the framework of the customary international law, it is relevant to discuss the non-refoulement principle in the following terms. “The development of customary principles should be considered in two main contexts: in the international context of refugees protection and in the human rights context”21. Thus, the customary law principle of non-refoulement in the context of refugee protection is the following: “no person seeking asylumm ay be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or to return to a territory where he or she may face a threat of persecution or to life, physical integrity, or liberty”22. In the human rights context, the principle of non-refoulement may be interpreted in the following way: this principle is followed by the international community and has gained a broadened consensus and status. Moreover, it is approved in the international community that inhuman attitude, torture or cruel treatment. There the following main elements relevant to the non-refoulement principle, such as customary ban on cruel/inhuman attitude to torture and punishment. In accordance with consensus, torture prohibition corresponds with customary international law rule. Furthermore, “the Article 7 of the ICCPR, Article 3 of the European Convention on Human Rights, Article 5 of the Banjul Charter, and Article 5(2) of the American Convention on Human Rights, as well as of other instruments for the protection of human rights”23 are developed with regards to this principle. The Human Rights Committee has underlined the necessity to forbid “torture, cruel, inhuman or degrading attitude (the General Comment No. 24 (52) (1994)”24. Therefore, the international law prohibits in different documents cruel attitude or prosecution. In compliance with the norms described in Article 38(1) (b) of the Statute of the International Court of Justice: “international custom, as evidence of a general practice accepted as law is a certain source of law applicable in the process of international judicial disputes solutions”25. The following perspective UNHCR presents: the abovementioned criteria are reflected in Article 33 of the 1951 Convention and other relative documents that used internationally and regulations of the laws in the global arena and thus “the non-refoulement principle can be considered a part of customary international law”26. Consequently, all countries of the global community should follow this principle even in spite of their rejection to the 1951 Convention and/or its 1967 Protocol. With this respect, it is underlined by UNHCR that “the practice of non-signatory States hosting large numbers of refugees, often in mass influx situations”27. Furthermore, performing its role of supervision UNHCR follows the governmental application of non-refoulement principle application. In accordance with UNHCR’s practice, in the majority of cases the States have been focused on the principle of non-refoulement acceptance as connecting link between them, showing in numerous cases the principle’s binding nature28. Moreover, the international approval of the non-refoulement principle currently witnesses the fact that there is a direct trend of global integration and thus international regulations approval by different countries. It has been recently mentioned in the Declaration signed by the Ministerial Meeting of States Parties on December 12-13 200129 and approved and finally signed by the General Assembly that the international community adheres to the following principles proclaimed by the non-refoulement principle: “…the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”30. “The main feature of non-refoulement in the customary international law framework is its correlation with the prohibition of torture in the international law. Moreover, it is also concluded that any forcible return to a person’s subjection to danger. If a person is at risk and may lose his life forcibly is also a part of the customary law in the international arena. Basically, the persons should not be exposed to danger or even a forcible fatal outcome and thus the non-refoulement principle is developed with regards to these principles. In order to follow the person’s needs to safety, the non-refoulement principle is focused on a person’s avoidance of “a risk of cruel, inhuman or degrading treatment or punishment”. These principles are followed on the global and local levels and are reflected in the treaties of human rights law or in the customary international law”31. In accordance with the non-refoulement principle, the States are obliged to find out and be sure that “a person being removed from their territory would not be exposed to a serious human rights degrading”32. As it was already written, in case a person is refugee then he has a chance to be protected by the principle of non-refoulement. The Convention or Protocol principles do not protect people who do not belong to a group of refugees: “individuals who are driven from their places of origin, but do not cross a national boundary - internally displaced persons - cannot appeal to international legal standards governing refugees, even if they fear persecution or other serious harm”33. Consequently, internally displaced person does not have equal rights with refugees and do not have a guarantee to be protected from a forced removal from one country to their home country34. Still, there is another perfect option for such group of people. There is a “good offices” jurisdiction based in accordance with the UNHCR statute. In accordance with this statute, there is a protection mandate for helping and protecting persons beyond the framework of the international refugee treaties35. Another authority helping displaced persons is the United Nations Border Relief Operation (UNBRO). Initially, this organization established in 1982 assisted Cambodians in border camps. Moreover, the persons crossing the border during the war or social turmoil cannot be protected in the frame of the international refugee law. This group of people has an individualized fear of persecution. Thus, there is a necessity to broaden a scope of the persons subjected to refugee definition and take into account a group of people who left the country during the war or a social turmoil. When a person leaves a country, he/she is subjected to jurisdiction of the reception country. Still, it is necessary to explain the meaning of concept “asylum”, which is often used in the international law protection. “Protection” and “asylum” should be differentiated from one another. Refugees should be respected and protected in the reception country and be guaranteed that they would not return to the territory where they can be persecuted or tortured. In order not to undermine the internationally accepted principle of non-refoulement, host countries should guarantee protection and safety to the refugees. “Humane standards” of treatment are essential for refugees and other persons, who are not classified as refugees. In spite of the fact, if a host country may differ between a person is looking for a refugee satus or is just “illegal alien” basic individual rights and principles of respect should be protected by the state. Basic standards of treatment to the state’s own citizens and to the non-citizens should be equal. The following aspect in terms of the state’s responsibility before non-citizens should be the following: “Whether a nonnational's entry into a state was lawful affects only his or her claim to immigration status or other benefits above and beyond the right to essential protection to which all persons within a state's borders are entitled”36. Therefore, the principle of non-refoulement is being considered as a rule of international customary law, because of a normative character of this principle. It can be also claimed that this principle is introduced in the international treaties which are legal on the global and local levels. When the non-refoulement principle was acclaimed in the 1967 United Nations Declaration on Territorial Asylum37 it has been further acclaimed and its role was increased on the international level. The conclusions and resolutions signed by the UNHCR Executive Committee and the United Nations General Assembly. Moreover, the attitude to the principle of non-refoulement expressed by the behavior of the United Nations High Commissioner for Refugees can be determined in the following terms: a tolerant attitude to this principle is often underlined with no intrusion into the state’s jurisdiction that does not follow this principle or to the governments, where this principle is constantly followed. In such a way, it can be claimed that there is a gradual development of this principle and a proper constant work at its implementation into the international customary law. In the following terms, the principle of non-refoulement is proven to be a part of the international customary law: “…customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour”38. “Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provision will figure amongst those in respect of which a right of unilateral reservation is not conferred or is excluded39”. These are the basic principles of accounting non-refoulement principle to customary law. Thus, it is possible to claim that there are universal trends of non-refoulement principle. The central issue of this norm is the human rights protection and it cannot be stated that this issue is of central concern for the international community. Contextual determination of the non-refoulement principle It has been already mentioned that a current study concerns considerations about the non-refoulement principle in the international customary law. Therefore, it is relevant to discuss territorial usage of the principle of non-refoulement and consider the initial objective of this document and the initial interpretation of it provided in Article 31(1) of the 1969 Vienna Convention. A geographic restriction of this document is also present. It is mentioned in Article 33(1) of the 1951 Convention that only the state where the person in exile should not be sent to, but there is no word about country, where the refugee is sent from. Concerning the issues occurring during extraterritorial usage of non-refoulement principle it is clearly seen that a certain prohibition really exists. It is the following: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened…”40. The following complexities concerning “refouler” may occur: on the one hand this word is translated into English as “repulse”, “repel”, “drive back” and it was not underlined in the Convention of 1951 what exactly does a term “refouler” mean and it was neither underlined nor specified in the 1951 Convention what are special limits of this term. In accordance with the context of Article 33 of the 1951 Convention, it is relevant to note that there are certain exceptions concerning refugees, who were dangerous for the country of their presence thus there is limit of persons of the host country. In accordance with UNHCR’s perspective there is a certain contradiction between interpretations of Article 33(1) and 33(2)41. Thus, it is underlined that these Articles are covering different issues and the scope of provisions presented in the Convention is made explicit. Moreover, it is essential to mention that any explanation which is a basic one for the Article 33(1) of the 1951 Convention and does not extend the limits of a State and acts outside the State’s territory, brings refugees to their home state or country of their residence, where they can experience torture or risk. Consequently, at this point it is clearly seen that there is a serious inconsistence with the humanitarian issue and the main objective of the 1951 Convention and 1967 Protocol. In this context the Preamble to the 1951 Convention should be cited: “Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination…Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms” 42. Therefore, it is clearly seen that the nature of the Convention is humanitarian and it is relevant that the Article 33 (1) is directed on protecting refugees from any acts violating human rights. There are some interpretations of this Article and events when there have already made the attempts to protect the rights of refugees. In a Memorandum on January 3, 1950, the Secretary-General underlined that if an asylum seeker is got back to the country where he can be tortured it is the same as return him back to his persecutors directly. Further on, this claim was interpreted in a correct context by the representative of the United States. The American representative has underlined that a refugee had a regular position and could have been subjected to persecution in his home country. Thus, liberty and safety of a refugee is threatened under such kind of circumstances. Moreover, the representative of America argued that it was necessary to talk about “not to expel or return (refouler)” and not about the words implying “not turn back”. In this case there will be no doubt concerning refugees were they or were not admitted to residence. Conclusion Non-refoulement principle accepted in 1951 is being widely discussed by scholars and scientists for determination of the boundaries of its relevant application in the modern international judicial paradigm. The principle of non-refoulement approved in the international society has been considered starting from the date of its approval to be the main document that regulates refugee and seekers for asylum rights’ protectiilityon. Non-refoulement principle represents one of the basic pillars of refugee and immigration law.  There is one special aspect in this principle in accordance with which an alien should not be sent to his country where he can be tortured. The main advantages of this principle are reflected on the example of refugees, to which belong persons who escaped from their countries having a fear of a constant prosecution by competent organs of their country. Another category protected in accordance with this principle is asylum seekers. This is so-called “jus cogens rule” and this aspect is obligatory for all countries of the international society. It has been often claimed that this document should be considered in the perspective of the human rights and in the perspective of refugee defence. Thus, it will be considered the way the non-refoulement rule has turned into one of the basic rule of the global customary regulation. It is also relevant to consider by the countries representing asylum to the refugees the procedure of determination whether people are immigrants or asylum seeking and not a law-breaker. Therefore, it is necessary to work at development and further use of the non-refoulement principle in the international community and save this principle as the basic pillar of the international customary law. Works cited Cases: Jabari v. Turkey, Appl. No. 40035/98, Council of Europe: European Court of Human Rights, 11 July 2000, available at: http://www.unhcr.org/refworld/docid/3ae6b6dac.html [accessed 10 May 2011] Laws: Convention Relating to the Status of Refugees, (1954) 189 UNTS 137, Article 33(1). The secondary sources 1. «Refugee Questions Subject of Third Committee Scrutiny in November.» (1986). UN Chronicle, January, pp. 64+. 2. «U.N. Commission Permits Refugees to Be Sent Home Only When It»s Safe.» (1996). The Washington Times, May 1, p. 18. 3. B. Gorlick, «The Convention and the Committee Against Torture: A Complementary Protection Regime for Refugees.» (1999). 11 IJRL 484. 4. Callamard, Agnes. "Malawian Refugee Policy, International Politics and the One-Party Regime." (1994). Journal of International Affairs 47:525-556. 5. D’Angelo, Ellen F. "Non-Refoulement: The Search for a Consistent Interpretation of Article 33." (2009). Vanderbilt Journal of Transnational Law 42:279+. 6. Durieux, Jean-Francois. "A Regime at a Loss?" (2009). Forced Migration Review, September, pp. 60+. 7. . Lauterpacht E and D. Bethlehem, «The Scope and Content of the Principle of Non-refoulement: Opinion” in E. Feller, V. Turk and F. Nicholson (eds.), Refugee Protection in International Law, (Cambridge 2003), 140. 8. Feller, Erika, Volker Turk, and Frances Nicholson, eds. Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. (2003). Cambridge, England: Cambridge University Press. 9. Fullerton, Maryellen. "Failing the Test: Germany Leads Europe in Dismantling Refugee Protection." (2001). Texas International Law Journal 36:231+. 10. Lambert H., “Protection Against Refoulement from Europe: Human Rights Law Comes to the Rescue”. (1999). 48 ICLQ 515-44. 11. . Steiner H and Alston P., International Human Rights in Context (Oxford/New York, 2nd edn., 2000), 731. 12. Hathaway J. C. and Harvey C. J., «Framing Refugee Protection in the New World Disorder.” (2001). 34 Cornell Journal of International Law 290. 13. Loescher, Gil. The UNHCR and World Politics: A Perilous Path. (2001). Oxford: Oxford University Press. 14. Lopez, Aurelie. "The Protection of Environmentally-Displaced Persons in International Law." (2007). Environmental Law 37:365+. 15. Lubbers, Ruud. "Asylum for All: Refugee Protection in the 21st Century." 2002. Harvard International Review 24:60+. 16. Morris, Virginia, M. Christiane Bourloyannis-Vrailas, Sam Blay, Andreas Zimmermann, Barry Mawhinney, and Kim Girtel. "Current Developments." (1994). American Journal of International Law 88:343-382. 17. Mushkat, Roda. One Country, Two International Legal Personalities: The Case of Hong Kong. (1997). Hong Kong: Hong Kong University Press. 18. Nafziger, James A. R. "The General Admission of Aliens under International Law." (1983). American Journal of International Law 77:804-847. 19. Bruin R.& Wouters K., «Terrorism and the Non-derogability of Non-refoulement” (2003)15 IJRL 5, 24-6. 20. Riera, Jose. "Migrants and Refugees: Why Draw a Distinction?" (2006). UN Chronicle, December, pp. 31+. 21. Rotberg, Robert I., ed. Vigilance and Vengeance: NGOs Preventing Ethnic Conflict in Divided Societies. (1996). Washington, DC: Brookings Institution. 22. UNHCR Refugee Policy and Practice, «The Principle of Non-Refoulement as a Norm of Customary International Law”. Document to be found at: . 23. W. A. Schabas, Non-refoulement, Human Rights and International Cooperation in Counter-terrorism (Liechtenstein 2006), 4. Read More