The principle of non-refoulement essay
The institution of non-refoulement is worth to be called one of the cornerstone principles of the refugee law. It establishes and reflects the international community’s commitment to protect the main human rights and freedoms. Among such freedoms and rights, next items can be mentioned – the right to life; the freedom from torture, cruel treatment, or punishment; person’s liberty and security. The threat arise when a person is returned to danger or persecution. The principle of non-refoulement is recognized in Article 33(1) of the 1951 UN Convention on the Status of Refugees and its protocol 1967 – the prohibition of sending, expelling, returning or otherwise transferring (refoulement) a refugee to “territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group”.
The members of the Immigration Law Practitioners’ Association (ILPA) also emphasize that the principle of non-refoulement is also considered to apply in a human rights context to prohibit the forcible sending, or returning or in any other way transferring a person to a country where he or she may face torture. The iteration of the principle in a human rights context makes it applicable to all persons and not only to refugees (Fitzpatrick, p.27). In this order, the fact that the principle under review is applicable to asylum seekers doesn’t seem to be doubtful. This has been affirmed by numerous international instruments, including Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 13 (4) of the Inter-American Convention to Prevent and Punish Torture. UN High Commissioner of Refugees emphasized – “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” (UNHCR Note on the Principle of Non-Refoulement, p. 3).
Speaking about the principle of non-refoulement, UN Convention on the Status of Refugees is often treated as the cornerstone of appropriate international law institution. This point is hard to be argued, however, mentioned Act is not the only instrument of international law to protect the appropriate rights of refugees, as the principle has witnessed significant evolution in next few decades. In this order, it is important to remind the UN Declaration on Territorial Asylum adopted by the General Assembly in 1967 – “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”. Another relevant Act is 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 provides next recommendations to member governments: 1) They should act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory; 2) 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, we may remind the Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee in 1966. Its Article III (3) provides – “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”. Herewith, the evolution of analyzed principle application has generated indirect instruments of non-refoulement protection, such as UN Convention against Torture and International Covenant on Civil and Political Rights. As for the USA, except international instruments, the principle of non-refoulement is also established on regional level through Article 22 (8) of American Human Rights Convention, 1969.
However, there are still serious disputes about the application of principle, considering existing ambiguity of interpretation. The start was given with Haitian indirection program of 1981, when US coast guard set out to patrol the seas between Haiti and the US and intercepted boats believed to carry illegal migrants (Stoyanova, p.3). Then scandal was sharpened in 1992, when temporary screening requirement was refused and anyone intercepted was returned without regard to their status as potential refugees. The official position stood that that the principle of non-refoulement does not apply extra-territorially. This idea was accepted by the US Supreme Court Sale v. Haitian Centers Council, which held that United Nations Protocol Relating to the Status of Refugees does not apply to actions taken by the Coast Guard on the high seas. Obviously, this idea was strongly rejected by international community, in the face UNHACR. It is important to note that disputes around non-refoulement principle’s territorial applicant still remain rather relevant, however, the majority agrees that practices applied by states to block potential access to their territory are in violation of the prohibition of refoulement.
