Refoulement translated roughly as ‘turning back’ of refugees, includes both the rejection of refugees at the border as well as the deportation of refugees from inside of a country. The Principle of Non-refoulement is what defines the lines around the “turning back” – who, who not, when, when not, how, how not, why, why not, etc.
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, 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 the 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 fulfill 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 the 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 a 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 extra-territorially, 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. 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 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 certainly 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 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.
The notes on the principle of non-refoulement released back in 1977 by UNHCR, can be taken as the comprehensive guide to the issue at the current time.
Position in India
India has a rich history of accepting refugees and granting asylums [Dalai Lama with thousands of Tibetans in 1959, hundreds of Bangladeshi (East Pakistan) nationals in 1971, the Afghans between 1969-79, just to mention a few].
And that’s in spite of the fact 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 main International Law tools to the matter).
India’s refugee policy is one that gambles on the inherent plurality of our nation, and the generosity of our spirit to welcome people and treat guests as gods.
The recent actions of India towards the refugees though mark the start of a whole new story with the tag of "internal security concerns", thousands of Rohingya refugees have been turned away from our gates, and the ones who managed to get in are on verge of being deported.
Government propositions like the ones determining which minorities are eligible for citizenship and the conditions under which they can stay in the country highlights the biggest problem of a policy couched inside a ‘do nothing’ framework.
It exposes refugees and asylum seekers to the vagaries of the government in power, without a solid network of laws to protect them. The country will also expose itself to people who will become increasingly wary of registering themselves for fear of being detained and will be tempted to go underground, thus becoming illegal and falling outside the protection of International agencies or local governments.
The last decade has seen a dramatic increase in the number of people fleeing violence, war, and natural and man-made disasters. Every country around the world has been trying to come to terms with people flooding in who are not part of the fabric of that particular nation. While India’s fears of being burdened with a flood of refugees from neighboring lands are not totally unfounded, there are serious reasons to focus on creating a policy now.