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Refugee and the Non-refoulement obligation

 "So, when I say that I am a refugee, you must understand that there is no refuge"- Chris Cleave, Little Bee

Law of Refugee has its basis in Human Rights and Humanitarian Law. Even though the term refugee has been adequately defined in various regional and international instruments, the states interpret the term to forward their own self-interest. The strict or narrow definition and the lack of consensus amongst states have a direct and immediate effect on the rights of the refugees. From a purely practical standpoint, the definition and the interpretation of the term 'refugee' by a particular state decides the fate of an individual who is facing persecution.

Frequently states reason in reverse from their fear that they will have to provide unilateral protection to refugees and arrive at a narrow conception of who is a refugee so as to limit the number of claimants. The following article shall analyze the definition of Refugee in light of the obligation of non-refoulment as contained under International instruments. The article shall also briefly look at the consequences of the non-refoulment obligation on the state.

Definition of Refugee
The definition of refugee has evolved in the last century. The word refugee is derived from the French word 'refugie' which means 'gone in search of refuge'. The concept of refugees can be dated back to the Greek practice of taking refuge in a temple. However, the first documented refugees were the Huguenots, who were the pre-revolutionary French Protestants fleeing from the persecution by French King Louis XIV to England.

The aftermath of World War I was the resulting refugee crisis. The absence of a comprehensive policy dealing with refugee flow was observed. It was for this reason that the League commissioned Fridtjof Nansen to assist Russian refugees after the October Revolution. The League also adopted the 1933 Convention relating to the International Status of Refugees.

However, it was after World War II that a large influx of refugees created a dire need for an international response to the emerging refugee crisis. The United Nations adopted the Convention relating to the Status of Refugees 1951 as amended by the 1967 protocol (Refugee Convention) which comprehensively defined Refugees, the rights of refugees and the state's obligation towards them.

Under the auspices of League of Nations, various international instruments defining refugees were drafted but these definitions were limited to the nationality of the displaced population and failed to take into account other factors which find a place in the Refugee Convention. Refugee as defined under Article 1 of the Convention relating to the Status of Refugees 1951, as amended by the 1967 protocol states:
"Any person owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it"

Though the Refugee definition was a laudable step towards a global consensus on efforts to tackle the refugee crisis, the definition failed to consider the changes in contemporary refugee realities. The Organization of African Unity hence adopted the Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 which contains a definition of the term "refugee", consisting of two parts: the first part is identical with the definition in the 1967 Protocol while the second part applies the term "refugee" to: "every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality" .

On the other hand, The Cartagena Declaration of 1984 provides a broad definition and determines that a 'refugee' includes: "Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order."

Law on Refugee Status
The declaratory nature of refugee law is stated in the Handbook on Procedures and Criteria for Determining Refugee Status prepared by UNHCR as follows:
"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not, therefore, make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee"

The same is also mentioned in the preamble to the European Union Qualification Directive which states 'The recognition of refugee status is a declaratory act'. This means that the unwillingness of a state to recognize a person as a refugee does not mean that such a person is not a refugee. As long as the factual preconditions stated in the Refugee Convention are fulfilled a person is to be considered a refugee.

The definition of refugee under the Convention can be divided into 4 characteristics namely (1) Outside the country of origin, (2) "Well-Founded fear" of persecution (3) on basis of race, religion, nationality, membership of a particular social group or political opinion (4) unwilling to return to the country of origin . Therefore, the definition under the refugee convention is restrictive. It qualifies that the person should be outside the country of his nationality, therefore, allowing only people of other states to avail of the refugee status and restricts internally displaced people from availing the status. This emanates from the positivistic legal norm of state sovereignty and that for a person to seek international protection, one needs to be outside the country of origin.

Furthermore, the definition focuses on individuals rather than the preconditions in the country of origin. The definition, therefore, fails to afford protection to climate change refugees, economic refugees, refugees due to sexual orientation etc. The convention accords the states and the courts wide discretion in asylum proceedings. It, therefore, allows states the opportunity to restrict the influx of refugees by failing to recognize them as refugees but rather label them as Asylum Seekers. This practice is detrimental to the safety of the refugees and a derogation of International Human Rights.

A comparison of the Convention of Refugee in light of the two regional conventions mentioned above shows that in order to be determined as a refugee a person has to show that there is not just fear of being persecuted but a well-founded fear of the same and such persecution is with respect to the enumerated Convention grounds (reasons of race, religion, nationality, membership of a particular social group or political opinion). The courts have evolved a dual test to determine the existence of well-founded fear. The UN High Commissioner for Refugees ("UNHCR") stated "To the element of fear – a state of mind and a subjective condition – is added the qualification "well-founded." This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term "well-founded fear" therefore contains a subjective and an objective element"

In Kalala v. Minister for Immigration and Multicultural Affairs, the court held "Necessarily fear is a subjective matter. However, whether fear of persecution for a Convention reason is 'well-founded' is an objective matter: it cannot be determined solely by establishing that such fear is actually held and that it is believed by the applicant for refugee status to be well-founded". Canadian Courts have gone further and in Kamana v. Canada (Minister of Citizenship and Immigration) held on lack of evidence of subjective fear as "a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition – subjective and objective – must be met". Hence, the traditional concept of well-founded fear covers both the subjective as well as objective element and both have to be considered by the state. Moreover, it is not just necessary to prove the presence of subjective fear but that such fear is ongoing and it must emanate from convention grounds.

Nonetheless, Hathaway in 'The Law of Refugee Status' states that this dual test is dangerous as this subjective condition is an additional burden and limits cases where there is an objective risk but absence of subjective fear. He further states that a person not fearful of persecution but shows that there is a real chance of persecution shall be denied refugee status.

With respect to well-founded fear and the satisfaction of both the subjective and objective element, the UK Court held in R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Ors that
"Fear is clearly an entirely subjective state experienced by the person who is afraid. The adjectival phrase "well-founded" qualifies, but cannot transform, the subjective nature of the emotion. The qualification will exclude fears which can be dismissed as paranoid, but we do not understand why it should exclude those which, although fully justified on the face of the situation as it presented itself to the person who was afraid, can be shown objectively to have been misconceived. A simple, but graphic, example will illustrate out point. A bank cashier confronted with a masked man who points a revolver at him and demands the contents of the till could without doubt claim to have experienced "a well-founded fear". His fears would have been no less well-founded if, one minute later, it emerged that the revolver was a plastic replica or a water pistol".

Furthermore, Article 1C, 1D, 1E, 1F are exclusion clauses to the term refugee and contain condition under which a person ceases to be a Convention refugee. However, the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR) has expressed that these clauses are to be applied sparingly and in order to refer to these clauses "There must have been a change in the refugee's country of origin, which is fundamental, durable, and effective. Fundamental changes are considered as effective only when they remove the basis of the fear of persecution."

Article 33 of the Refugee Convention contains the non-refoulement obligation. Article 33(2) refers to the exceptions to the non-refoulement principle which are (1) danger to the security of the country and (2) convicted of a serious crime. The European Court of Justice has held in Reg. vs. Bouchereau case that there must be "genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society". Also, Executive Committee Conclusion No. 7 states that the exceptions contained in Article 33 (2) must be interpreted and applied strictly keeping in mind the serious consequence proceeding from the exclusion. Moreover, the test of proportionality (with respect to the threat to society and the fear of persecution) should be applied while invoking the exclusion clause. States and the courts should consider the application of the article as ultima ratio.

Andrew Shacknove in his paper 'Who is a refugee?' has advocated a broad definition of Refugee. According to him "a person who is deprived of basic rights and does not have any recourse to protection by the home government and is in a position to seek international assistance is a refugee". This is markedly different than what is enumerated in the refugee convention. He states that the underlying condition from which the definition of a refugee under the refugee convention derives its essence from is the inherent loyalty between the state and the individual, the severing of this loyalty and trust is manifested by alienage and persecution and that these manifestations are necessary for the existence of refugeehood. Andrew Shacknove differs to the extent that persecution and alienage are not essential to refugee status. He states that the absence of persecution in cases of failure of the state to protect its citizens or the cessation of state machinery and government would also amount to such citizens being regarded as refugees. Hence, he argues that "refugees are in essence persons whose basic needs are unprotected by their country of origin, who have no remaining recourse other than to seek international restitution for their needs and who are so situated that international assistance is possible. This alternative conception of refugeehood accounts more comprehensively than does the current notion."

Matthew Lister, on the other hand, claims that by giving a broad definition there will be an increase in the number of protection claims and thereby shall hinder the real refugees from gaining access to protection. He is critical of Shacknove's definition as being ambiguous with respect to the part of a refugee having access to international aid. This access is explained by Shacknove as where the state is unable to prevent aid being administered. Matthew states that this raises the question as to what it means to prevent aid and also places emphasis on strong and weak states. Hence Shacknove's definition requires a consensus on humanitarian intervention. It fails to acknowledge the sovereignty of states which is a rule of jus cogens. He proposes a "wide reading of a narrow definition". He states that to fully realize the state duties towards refugees, the definition needs to be constructed in light of these duties.

Principle of Non-refoulment
Article 33 of the Convention relating to the Status of Refugees 1951 states: "Prohibition of expulsion or return ("refoulement"): No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

The principle of Non-refoulement appeared in various international instruments even before the refugee convention. Article 16 of Règles Internationales sur l'admission et l'expulsion des étrangers adopted in 1892 at the Geneva Session of the Institut de Droit International (Institute of International Law) mentioned the principle of non-refoulement. However, after World War II, Article 45 of the 1949 Geneva Convention relative to the Protection of Civilians Persons in Time of War stated that "in no circumstances shall a protected person be transferred to a country where he or she may have a reason to fear persecution for his or her political opinions or religious beliefs."

Article 7 of the International Covenant on Civil and Political Rights (ICCPR), Article 3 (1) of the United Nations Declaration on Territorial Asylum, Article 3 of the Convention Against Torture and various Human rights instruments contain the principle of non-refoulement. The principle also has found a place in regional instruments, national legislation and Constitutions. The obedience of the principle of non-refoulement is intrinsically linked to the determination of refugee status. Moreover, the principle of non-refoulement governs the nature of domestic refugee policy of the states. Kristen Walker states that "The controversy has centred on the definition of the term 'refugee' in particular because if that term is defined broadly, states will owe obligations on non-refoulement to a much larger group than if 'refugee' is defined narrowly. Defining a refugee is not an inconsequential matter; rather, it is of practical importance and has consequences for both States and individual."

Interpretation of Principle of Non- refoulement
Article 33 incorporates the non-refoulement principle which is the foundation of refugee law. However, the apparent difference in the construction of the Article 33 from Article 1 opens this principle to interpretation by the states. The requirement for an individual to fall under Article 33 requires that the refugee's life be threatened in the near future and such threat should be real and certain. Thereby an individual may be considered as a refugee under the convention but would not fall under the purview of Article 33. This distinction translates into the "legal" refoulment of refugees if the receiving state determines there is no threat to their life or freedom since the "well-founded fear" required for refugee status is not by itself sufficient to prove an inherent "threat to life or freedom.

In Cardoza-Fonseca case the U.S. Supreme Court pointed out that "[art.] 33.1 requires that an applicant satisfy two burdens: first, that he or she be a 'refugee,' i.e., prove at least a 'well-founded fear of persecution'; second, that the 'refugee' show that his or her life or freedom 'would be threatened' if deported." The court stated, "Out of the entire class of 'refugees,' those who can show a clear probability of persecution are entitled to mandatory suspension of deportation [non-refoulement] . . . while those who can only show a well-founded fear of persecution are not entitled to anything." By establishing this dual test, the court stated that only those applicants who could successfully demonstrate refugee status and a clear threat of persecution, beyond the "well-founded fear" required for refugee status, would be entitled to non-refoulement.

This reading of Article 33 is inconsistent with the travaux preparatoires of the convention which clearly shows that the drafters of the convention envisaged that the states are obligated under Article 33 to extend protection to every individual considered as a refugee under Article 1. This restrictive reading would allow the states to undermine the convention by using an article to read down the convention. Another point observed reading the travaux preparatoires is that the reason for the difference in the wording if the two articles are to allow the principle of non-refoulement broad application. As per the travaux preparatoires states have an obligation to not refoul a person to not just the country of origin but also to any other country where such person may face persecution.

On the other hand, an expansive reading of Article 33 states, protections by the state should include threats to the life or freedom of refugees as a consequence of persecution based on convention grounds and threats that may arise from but are not consequences of persecution based on convention grounds. This reading goes beyond the scope of Article 1, reading additional grounds not mentioned in the exhaustive list without any other article supporting this construction. Since refugee status is a precondition to non-refoulement, expanding the scope of Article 33 beyond that of Article 1 would cause the two provisions to operate in disharmony. Hathaway suggests that this position is based upon a reliance on sources outside of refugee law rather than on the actual international instrument itself.

The proper construction of Article 33 can be found in the judgements by the Australian and New Zealand courts which state that "although the definition of 'refugee' in Art 1 and the identification of persons subject to the non-refoulement obligation in Art 33 differ, it is clear that the obligation against non-refoulement applies to persons who are determined to be refugees under Art 1" thereby affirming the congruence between both Article 1 and Article 33.

However, for a person to avail of the right of non-refoulement, such person under the convention has to reach the territory of the state in which he seeks refuge. The principle of non-refoulement has territorial application and hence a state can refoul an asylum seeker if such person is outside the state's territory. The states practice methods to stop refugees from entering their territories. The state may either take direct steps to prevent the asylum seeker from reaching its territories like non-admission of stowaway asylum-seekers and push-offs of boat arrivals or interdictions on the high seas or it may take indirect steps by transferring the asylum seeker to unsafe third countries/ transit countries or stop the asylum seeker from leaving the country of origin.

There have been instances where the courts have applied a strict interpretation. In Sale v. Haitian Centres Council, the US court held that non-refoulement obligation only applies for those who are "at the border or within a country, not the high seas". Whereas in Regina v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others (2004) also known as the Roma Case the UK appellate Court adjudged that the principle of non-refoulement does not apply to those who have yet to "leave their country of origin". However, the United Nations Refugee Agency (UNHCR) in its advisory opinion has affirmed the extraterritoriality of the principle of non-refoulement. As a strict interpretation of the non-refoulement principle allows states to take steps preventing asylum seekers from ever being protected by the principle, this interpretation has been discarded. The courts presently have expanded the scope of the principle to include areas where a state exercises effective control.

The states under Article 2(1) of the ICCPR and Article 1 of the European Convention of Human Rights are responsible for all those persons "subject to its jurisdiction". Therefore as in the Sale case and Roma Case, interdiction on the high seas and preclearance on other states territory shall be regarded as effective control by the state through their actions, thereby invoking the principle. The European Court of Human Rights in the Soering Case concluded that signatory states are responsible for actions of non-signatory states resulting in consequences of refoulement. Hence the obligation of the state for non-refoulement arises not only to the country of origin where the person fears threat to life but also to another 3rd country where the person risks being sent back to such risk.

The principle of Non-refoulement as Customary law
The principle of non-refoulement found place in the Convention relating to the International Status of Refugees of 1933, which stated "Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures such as expulsions or non-admission at the frontier (refoulement), refugees who have been authorized to reside there legally, unless the said measures are dictated by reasons of national security or public order. It undertakes in any case not to refuse entry to refugees at the frontiers of their country of origin."

The principle was also cited in Article 4 of the Provisional Arrangement concerning the status of refugees coming from Germany, 1938 and Article 5 of the Convention concerning the status of refugees coming from Germany in 1938.

The customary law refers to those laws which emanate from customs practised by states. In, North Sea Continental Shelf case, the court held that "For a rule to become part of customary international law, two elements are required: consistent State practice and opinio juris, that is, the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it." The same was reiterated in Nicaragua v. United States of America 1984 case.

The customary nature of the principle of non-refoulement is reiterated in various instruments. The UNHCR Executive Committee Conclusion Number 25 states "Reaffirmed the importance of the basic principles of international protection and in particular the principle of non-refoulement which was progressively acquiring the character of a peremptory rule of international law" The Executive Committee Conclusion No 22 provides "In all cases, the fundamental principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed."

In a Declaration at the Ministerial Meeting of States Parties, 2001 states accepted "...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."

However, the executive committee has argued that the principle is not just a customary international law but has in the recent times acquired the nature of jus cogens. The same was accepted by the New Zealand Supreme Court in A.G. v Zaoui and the court held "the prohibition on refoulement to torture has the status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulement in such circumstances]."

Hence, it can be concluded that the principle is a customary international law if not jus cogens. This means that non-signatory states to the refugee convention are now bound by the obligation of non-refoulement. In light of the broad interpretation and the exterritoriality of the principle, the states are bound to extend the principle to anyone who intends to go to another state.

Burden on States
The states usually put forth the argument of state sovereignty to advance the appeal of less international regulation of refugee. The state has the right to control its borders in the interest of its citizens. The obligation to give protection to refugee and the principle of Non-refoulement is in stark contrast to these interests. In the present times, the questions surrounding refugee law have been given greater importance due to the rise in refugee crisis around the globe. The advancement in war mechanisms, the easy and fast movement of people and globalization has made it difficult for the states to secure its territorial borders and still fulfil its obligation under the convention.

Movement of refugees brings additional burden and problems on the host state for example Burden on resources, national security risks, a burden on infrastructure and employment market. Refugees often lead to increased financial burdens on states by requiring a redistribution of domestic resources to social welfare programs and immigration regulation.

In addition, mass movements of refugees may strain international relationships between states, especially if one state becomes increasingly burdened by mass migrations. A corollary to this problem is that the restrictive refugee policy of one state adds pressure on the other states to absorb a greater number of refugees. This unequal absorption eventually leads to the neighbouring states to reformulate their refugee policy towards a more restrictive regime. This can have an adverse effect on the condition of the refugees.

The two recent cases of the refugee crisis that can be studied to better understand the rise in refugee problems are that of the Rohingya refugees and Syrian refugees. Until August 2017, 515,000 Rohingya's have been forced to flee into Bangladesh from Myanmar. As of 4 October 2017, Bangladesh hosts more than 800,000 Rohingya refugees, and this number continues to increase daily. Similarly, 1,525,000 Syrian Refugees have made way into Europe since 2015, of which only 1,47,217 refugees have arrived via the sea, with an estimated 2,806 refugees being considered dead or missing.

UN Refugee Agency's annual Global Trends study, 2016 found that the total number seeking asylum globally was 65.6 million. However, the total seeking safety across international borders as refugees topped 22.5 million, the highest number is seen since UNHCR was founded in 1950 in the aftermath of the Second World War. The Study states "Globally, one in every 122 humans is now either a refugee, internally displaced or seeking asylum. If this were the population of a country, it would be the world's 24th biggest". Moreover, the figures show that about 34,000 refugees are created every day and 20 new displacements every minute.

The refugees live in harsh conditions. The restrictive refugee policies of countries force the refugees to take greater risks to arrive in countries with liberal refugee policy. Jonathan Kay in his article states that only one in every 200 refugees is selected for formal resettlement in a developed country. He equates this to a lottery system. In the year 2015, there were 16.1 million refugees yet the UNHCR was able to resettle only less than one per cent of the refugees at the end of the year. The unfortunate refugees who fail to be resettled live in refugee camps for an average of 5 years in degradable conditions without proper food, water and sanitation facilities. The refugees do not have proper housing and live in tarp shelters, tents, shipping containers or in makeshift camps.


"No one leaves home unless,
home is the mouth of a shark;
No one puts their children in a boat,
unless the water is safer than the land;" -Warsan Shire "Home"

The drastic rise in the number of refugees in recent times and the narrowing of the definition of refugees by states is the precursor to a greater human rights crisis. In order to avoid this, it is necessary that the states find consensus and implement a uniform refugee policy. There is a need for the refugee convention to evolve to the current times and provide a comprehensive definition of the term 'Refugee'. As part of the global community, it is incumbent upon the states to protect the Rights of the refugees. The tension between the two principles is inherent to the issue of the ineffective implementation of the convention. Hence the statement made by Kristen Walker rings true and highlights the fundamental issues that have to be resolved to fully realize the objectives of Refugee Law.

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