The Principle of Non- Refoulement

The Principle of Non- Refoulement

Author: Preeti Singh Bhadoria, Lloyd Law College, Greater Noida


The word non-refoulment derives from the French refouler, which means driving back or repel. Non-refoulement may be a rule of standard international law forbidding the expulsion, deportation, return or extradition of an outsider to his state of origin or another state where there’s a hazard that his life or freedom would be undermined for biased reasons. This law is often respected as one of the most critical principles of refugee and immigration law.

Refoulement interpreted generally as ‘turning back’ of refugees, incorporates both the dismissal of refugees at the border as well as the deportation of refugees from inside of a nation. The Principle of Non-refoulement is what defines the lines around the “turning back” – who, when, how, why, where, etc.

Since the principle of non-refoulment has advanced into a norm of customary international law, states are bound by it whether or not they are party to the Convention Relating to the Status of Refugees. This principle is also a portion of so-called jus cogens (it is a fundamental rule which no criticism is ever allowed).

Thus (as a part of customary and treaty law), all nations are legally bound by the prohibition of returning refugees in any manner to countries or territories where their lives, freedom may be threatened because of their race, religion, nationality, membership of a particular social group or political opinion, which is the cornerstone of international protection (An Introduction to International Protection, UNHCR). It is encapsulated in Article 33 (1) of the 1951 Convention.

Throughout history, high numbers of people have left, or have been constrained to leave, their countries of origin. In numerous cases, on their journey to reach a place of safety, a much better economic future, or both, these people face severe hardship. One key concern upon arrival is whether or not they will be permitted to stay in a country. Under International Law, States have a right to control the stay of outsiders in their region and may send them back to their country of origin. This prerogative is, however, not outright and may only be worked out with due regard to other rules of International Law.

Under the international human rights law, the guideline of non-refoulment ensures that no one should be returned to a nation where they would face torment, cruel, brutal, or debasing treatment or discipline and others harm. This principle applies to all the migrants at all times, irrespective of their migration status.

What is the principle of non-refoulement?

The principle of non-refoulement forms basic protection under international human rights, refugee, humanitarian, and customary law. It prohibits States from transferring or evacuating people from their locale or effective control when there are substantial grounds for believing that the individual will be a risk of others harm for the return, including persecution, torment, ill-treatment, and other serious human rights violations. In the International Human Rights Law, the prohibition of refoulement is explicitly included in the Convention against Torment and Other Pitiless, Brutal or Degrading Treatment or Punishment (CAT), and (ICPPED) International Convention Protection of People from Enforced Disappearance. In territorial instruments, the principle is expressly found in the Inter-American Convention on the Prevention of Torture, the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union.

International human rights bodies, territorial human rights courts, as well as national courts have guided that this principle is implicit guarantee streaming from the commitments to respect, protect and fulfill human rights. Human rights treaty bodies regularly get personal petitions concerning non-refoulement, including the Committee Against Torment, the Human Rights Committee, the Committee on the Elimination of Separation Against Ladies and the Committee on the Rights of Child.

What is the principle of non-refoulement?

The prohibition of refoulement under international human rights law applies to any form of removal or transfer of people, regardless of their status, where there are the substantial grounds for accepting the returnee would be at high risk of irreparable harm on the return of the account of torment, ill-treatment and other serious breaches of the human rights commitments.

The inalienable element of the prohibition of torment and all the other forms of ill-treatment and the rule of non-refoulement is characterized by its absolute nature without any exception. In this regard, the scope of this guideline under important human rights law treaties is broader than that contained in international refugee law. The prohibition applies to all persons, irrespective of their citizenship, nationality, statelessness, or migration status, and it applies wherever a State works out locale or effective control, indeed when outside of that State’s region.

The prohibition of refoulement has been interpreted by some courts and international human rights components to apply to a range of genuine human rights violations, including torment, and other pitiless, brutal or degrading treatment, flagrant refusal of the right to a fair trial, risks of violations to the rights to life, integrity and/or freedom of the personified, serious forms of sexual and gender-based violence, death punishment or death row, female genital mutilation, or prolonged singular confinement, among others. Some courts and few international human rights components have the further interpreted severe violations of economic, social and cultural rights to fall within the scope of the prohibition of non-refoulement because they would represent a severe violation of the right to life freedom from torment or other brutal, cruel or degrading treatment or discipline. For case, corrupting living conditions, need for medical treatment, or mental illness have been found to prevent the return of a person.

Heightened consideration must also be given to children in the setting of non-refoulement, whereby actions of the State must be taken by the finest interface of the child. In particular, a child should not be returned if such a return would result in the infringement of their fundamental human rights, including if there is a risk of the insufficient provision of food or health services.

What is the protection needs of migrants according to the principle of non-refoulement?

States have a legal obligation under international human rights law to maintain the principle of non-refoulement, counting to ensure that a range of practical and human rights-based protection mechanisms are in place:

·        Mechanisms for evaluation related to the principle of non-refoulement.

States should put input instruments and apportion resources to ensure that the IHRL protection needs of all migrants can be assessed separately and with due process, including as a supplement to refuge assurance mechanisms.

·        Mechanisms for entry and stay related to the rule of non-refoulement.

States should establish mechanisms for entry and stay for those migrants who are unable to return under IHRL, to ensure the principle of non-refoulement, as well as on other grounds such as ensuring torment rehabilitation. Administrative and legislative components should be set up to give legitimate status to migrants who cannot return, in the form of temporary, long-term or permanent status.

To secure the most fundamental human rights of any migrant or refugee, States have developed the principle of non-refoulement. These guidelines, reflected in different bodies of International Law, protect any individual from being transferred (returned, expelled, extradited -or whatever term is used) from one authority to another when there are considerable grounds for accepting that the person would be in threat of being subjected to violations of certain fundamental rights.

The rule is multi-faceted and its scope and application vary from context to context in agreement with the applicable law. Five key points explain the importance and significance of the rule of non-refoulement within the wider migration context.

1)     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 security, given its codification in Article 33 of the Convention Relating to the Status of Refugees (Refugee Convention) and in territorial refugee law instruments.

Over the past decades, however, the principle has also been included in human rights treaties, such as the Convention against Torment and Other Pitiless, Brutal or Debasing Treatment or Punishment (Article 3), the International Convention for the Protection of All People from Enforced Disappearance (Article 16) and in regional human rights instruments. Besides, the UN Human Rights Committee has considered that non-refoulement is an indispensable component of the protection against torment or other forms of cruel, brutal or debasing treatment or punishment, or arbitrary deprivation of life. Similar conclusions were drawn by the regional human rights courts, in particular, the European Court of Human Rights (Soering v. The United Kingdom,).

In 1949, the principle of non-refoulement was also included in the 1949 Geneva Conventions, basically about detainee transfers, but also to protect the civilian population. At its core, the guideline of non-refoulement is considered to form a part of the Customary International Law. Under Refugee Law, the rule of non-refoulement applies to both refugees and asylum seekers. In addition to being protected against refoulement, refugees are entitled to some other rights provided under that body of law. In contrast, protection against refoulement beneath Human Rights Law implies an individual cannot be returned, but will not consequently mean that the person must be granted refugee status and be afforded all of the rights that displaced people are entitled to. In all circumstances, however, a State must respect, protect, and fulfill the human rights of all people under its jurisdiction.

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

2)     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 rule of non-refoulement protects people that are under the jurisdiction of a State. This is the case when an individual is within a State’s territory, in its regional sea, or when the State exercises effective control over the person. Under Refugee Law, there is an incredible back for the view that the guideline applies to rejection at a State’s border. Moreover, in recent years human rights bodies and courts have been clear that the rule also applies when States operate extraterritorially, including amid interception or protect operations in the high seas.

There are, in fact, a few wrangles about when precisely an individual falls under the jurisdiction of a State. Whereas it has been argued that in the setting of border closures or ‘pushback operations’ the guideline of non-refoulement applies because the State aims ‘to exercise effective control over the physical movement of migrants, even in the case only through the coordinate anticipation of such development in a certain direction’, the traditional view is that a State needs to exercise effective-meaning physical- control over an individual for Human Rights Law to apply.

3)     Principle of Non-Refoulement that can protect the persons fleeing armed conflict

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

While the guideline of non-refoulement is traditionally understood as protecting against an individualized threat, it may also protect against more situational threats. As many clashes are fought on religious, ethnic or political grounds, UNHCR has convincingly contended that civilians fleeing from armed conflicts often face persecution on one of these grounds and qualify as refugees. Territorial instruments, legally-binding for most African States and non-legally official in Latin America and Asia, moreover recognize refugee status and protection for people fleeing armed conflicts or other situations seriously disturbing public order. Some states have included such broad definitions in their national laws.

Also, the European Court of Human Rights has found that the principle of non-refoulement applies if a person isn’t individually targeted, but where the threat comes from ‘the most extreme cases of general violence, where there’s a real risk of ill-treatment [or violations of the right to live] simply by a person being exposed to such violence on return’ (i.e. N.A v. the United Kingdom,).

4)     Principle of Non-Refoulement Protects against the Direct and Indirect Measures that Force a Person to Leave

The guideline of non-refoulement prohibits not only the direct forcible return of people in the above-described situations but moreover indirect measures that have the same effect.

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

Jurisprudence and expert suppositions also support the view that the guideline of non-refoulement prohibits States, not only from directly transferring a person to a pit of danger (return decision upheld by the State) but from taking certainly masked or circuitous measures that make circumstances leaving an individual with no genuine alternative other than returning to a place of danger. A few disputes that this is a legal denial. There’s also, admittedly, a need for clarifying the scope of such a norm.

In any case, it is or may be compelling that if a State cannot legally return a person, the guideline of non-refoulement ought to also be understood as prohibiting indirect measures designed to circumvent this prohibition.

5)     Principle of Non-Refoulement Requires the Procedural Safeguards

To guarantee that an individual is not returned to a put where he or she would be in danger of certain fundamental rights violations, basic procedural safeguards are required. Under International and Territorial Human Rights Law, people with an arguable claim that they would be returned in violation of the non-refoulement principle have the right to an effective cure. This would at the least require that the person needs to be informed of the transferor return decision in a timely way and be able to challenge the decision before a free and impartial body. Given the seriousness of the danger at stake, returns must be suspended pending a choice. Importantly, these safeguards need to in all cases, including where a State indicates to return individuals to an allegedly safe nation or has obtained diplomatic assurances for the treatment of the person.

The notes on the rule of non-refoulement released back in 1977 by UNHCR, can be taken as the comprehensive direct to the issue at the current time.

Position in India

India incorporates a wealthy history of tolerating refugees and giving refugees [Dalai Lama with thousands of Tibetans in 1959, hundreds of Bangladeshis (East Pakistan) nationals in 1971, the Afghans between 1969-79, just to mention a few]. And that’s despite the truth that India has no written law on the subject, neither is India signatory to the Convention Relating to the Status of Refugees or the 1967 protocol (the two fundamental International Law tools to the matter).

India’s refugee approach is one that gambles on the inherent plurality of our country, and the liberality of our soul to welcome individuals and treat visitors as gods.

The recent actions of India towards the refugees though stamp the beginning of an entirely modern story with the tag of” inner security concerns”, thousands of Rohingya refugees have been turned away from our gates, and the ones who managed to get in are on the verge of being deported.

Government recommendations like the ones determining which minorities are eligible for citizenship and the conditions under which they can remain in the nation highlights the biggest issue of a policy framed inside a ‘do nothing’ system. It exposes refugees and refugee seekers to the vagaries of the government in power, without a solid network of laws to protect them. The nation will also expose itself to people who will get to be increasingly wary of registering themselves for fear of being detained and will be tempted to go underground, hence becoming illegal and falling outside the protection of International agencies or local governments.

The last decade has seen a dramatic increment within the number of people fleeing violence, war, and natural and man-made disasters. Every nation around the world has been trying to come to terms with individuals flooding in who is not a portion of the texture of that specific country. Whereas India’s fears of being burdened with a surge of refugees from neighboring lands are not unfounded, there are serious reasons to focus on creating a policy now.