Refugees and the legal principle of non-refoulement ( Rejection)
Barrister Harun ur Rashid
In the context of refugee situation, the concept of non-refoulement is very important because no refugee or asylum seeker should be driven back from the country of refuge or asylum to any country where he/she is likely to face persecution or personal danger to life or security or torture. The word "non-refoulement" is derived from a French word "refouler" which means to drive back.
Non-refoulement is to be distinguished from expulsion or deportation or forced removal. The expulsion or deportation occurs when a foreigner is found to be guilty of doing something against the interests of the state or has been a criminal fugitive from another country escaping justice. Non-refoulement is applicable to refugees or asylum seekers.
Emergence of the Principle of Non- Refoulement (No Return)
The idea that a State ought not to return refugees to other States in certain circumstances is of recent origin. Common in the past were formal agreements between States for the reciprocal surrender of traitors or dissidents. Only in the mid-nineteenth century, the principle of non-extradition of political offenders began. At that time the principle non-refoulement emerged because of popular support for those persons who fled their country of origin from despotic governments.
The principle of non- refoulement has gained ground after the First World War (1914-18). The period was remarkable for the very large number of refugees, whether they fled Russia after the revolution, Spain, Germany or the Ottoman empire.
Conventions & Agreements
Under a 1928 Arrangements, States had adopted a recommendation that " measures for expelling foreigners or taking such other action against them be avoided or suspended in regard to Russian and Armenian refugees in cases where the person concerned is not in a position to enter a neighbouring country in a regular manner."
In the 1933 Convention Relating to the International Status of Refugees, Article 3 states that the contracting state-parties undertook not to remove resident refugees from their territory. Only eight States ratified the Convention.
The refugees from Nazi Germany in 1934-38 activated the European countries to abide by the legal principle of non-refoulement. It found expression in the 1936 Arrangement on the Status of Refugees among seven European States that " No refugees shall be sent back across the frontier of the Reich (Nazi Germany)". The need for protective principle of refoulement for refugees began to emerge solidly. There have been many Conventions and Agreement where the principle of non-refoulement has been recognised.
The 1949 Geneva Convention on the Protection of Civilian Persons in Article 45 in part provides : " Protected Persons shall not be transferred to a Power which is not a party to the Convention…..In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs."
Following the Second World War, a new era began for refugees. In February 1946, the United Nations expressly accepted that "refugees or displaced persons" who expressed "valid objections" to returning to their country of origin should not be compelled to do so by adopting a resolution in the UN General Assembly (Resolution 8(1) of 12 February 1946).
Finally the 1951 UN Refugee Convention in its Article 33 has incorporated the principle of non-refoulement and states:
" No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion."
However, paragraph 2 of Article 33 provides that the principle of non-refoulement does not apply for refugees on whom there are reasonable grounds for regarding them as a danger to the security of the country or who have been convicted of a serious crime that constitutes a danger to the community of that country.
The 1969 OAU (Organisation of African Unity) Convention Governing the Specific Aspects of Refugees in Article II states : " No person shall be subjected …to measures such as rejection at the frontier, return or expulsion, which would compel him to return or remain in a territory where his life, physical integrity or liberty would be threatened."
The 1969 American Convention on Human Rights in Article 22 states : " 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".
Article 3 of the 1984 Convention on Torture states 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."
Declarations and Resolutions of Regional Organisations
The 1966 Asian-African Legal Consultative Committee ( of which Bangladesh is a member) adopted a Declaration, known as the Bangkok Princles, that recognise non-refoulement concept.
The 1967 UN Declaration on Territorial Asylum recommends that States be guided by the principle that no one entitled to seek asylum 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".
The 1984 Cartagena Declaration not only endorsed the concept of non-refoulement but went further in reiterating that the concept of non-refoulement is a corner stone of international protection for refugees, having the status of "jus cogens" ( settled principle of international law from which no derogation is permitted).
Over the last fifty or so years, broader and liberal interpretation of non-refoulement principle has developed through State-practice. States have allowed large numbers of refugees not only to cross their territories but also to remain in their countries from Africa, Latin America, Asia and Communist European countries. State practice, individually and within international organisation has further elaborated the principle. States have recognised the application of the principle of non-refoulement when refugees appear at their frontiers. For example Bangladesh received thousands of refugees from Myanmar in 1978 and 1991. It seems safe to say that currently the principle encompasses both non-return or non-rejection of refugees.
The principle of non-refoulement in respect of refugees or asylum seekers constitutes a bed rock in promotion and protection of human rights. The principle is applicable to every one who has a well- founded fear of persecution or whether there are substantial grounds for believing that the person would be in danger of personal security or life.
Protection of human rights is no more a matter of domestic concern but has become international concern. No responsible state should depart from the recognised principle of non-refoulement. The core meaning of non-refoulement is that no state is required to reject refugees or asylum seekers to a country where the person would be in danger of his/her life unless the presence of that person poses security to the state.
The author is former Bangladesh Ambassador to the UN, Geneva.