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The Principle of Non-Refoulement as Jus Cogens

This article provides an overview of the evolution and development of the principle of non-refoulement under international law applicable to refugees and asylum seekers. The exceptions to the principle are discussed and critically analysed, with due regard to the convergences that arose in the course of legal developments.

The study highlights the controversial issues and blurred lines, which have surfaced with regard to the character of the principle of Non Refoulement as Jus Cogens and its practical application. This paper further attempt to provide plausible reforms and suggestions to tackle the refugee crisis as there is a drastic rise in number of refugees in recent times fleeing war and persecution to intolerable misery and suffering.

Introduction
The principle of non-refoulement entails that no refugee should be returned to any place where there is likelihood that he or she may face persecution. The principle of non-refoulement has evolved and gained a foothold internationally post World War II and has established the foundation of international protection of refugees.

The principle is enshrined in Article 33 of the 1951 Convention relating to the Status of Refugees.[1] The protection against refoulement does not apply to all persons but to the individuals who satisfy the requirements of the definition of a ‘refugee’ provided in Article 1A (2) of the 1951 Convention relating to the Status of Refugees.[2]

The 1951 Convention and its 1967 Protocol[3] are the only instruments which have worldwide acceptance to deal with the rights of refugee and regulate their status.[4] The embodiment of the principle of non-refoulement in 1951 Convention and the 1967 Protocol and its reaffirmation in the Conclusions of Executive Committee of UNHCR, in series of resolutions of General Assembly and its recognition in Article 3(1) of the United Nations Declaration on Territorial Asylum, Article 7 of the International Covenant on Civil and Political Rights, Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[5], Cartagena Declaration on Refugees, 1984[6] and in International Treaties to which substantial number of States are parties clearly shows that the principle has widespread acceptance and its normative character has been recognised by the states.[7]

With the existing scheme of refugee protection it is vital for the principle to acquire a proper standing in the international framework as it is still uncertain as to whether the principle has acquired the status of jus cogens norm. For this purpose it is imperative to see whether the principle of non-refoulement satisfies both the requirements of a jus cogens norm.

First, acceptance by international community of States as a whole, this requirement is met as the principle is recognised as a rule of customary international law meaning that there exits widespread acceptance by the States.

Second, norm from which no derogation is permitted, is also met as Article 42(1) of the 1951 Convention[8] affirmed by Article VII (1) of the 1967 Protocol, itself states that no derogation is allowed to Article 33 of the 1951 Convention. Hence, non-refoulement principle is a non-derogable component of international protection of refugees to which no reservations can be made.

The Article 53[9] and Article 64[10] of the Vienna Convention of the Law of treaties of 1969 provide that any treaty that conflicts or its contents are in contradiction to the peremptory norm, then that treaty would be invalid or terminated.

The states cannot enter into agreements by themselves that have the effect of overriding the principle and in no circumstance can bypass this norm. This clearly justifies that the principle has attained the status of jus cogen norm.[11]

Interpretation of Exceptions to Non-Refoulement Principle

Undoubtedly, the principle of non refoulement has gained utmost importance but to maintain its status it is crucial to look at the exceptions provided by the 1951 Convention itself. The acceptance of the non-refoulement principle as a jus cogen norm does not operate in an absolute and unconditional manner as there are exceptions to it. Article 33(2) of 1951 Convention states that a refugee may be returned in case of a threat to the national security of the host country.

Additionally, Article 1(F) of the 1951 Convention denies protection to an individual if he has committed crime against humanity, serious non-political crime or acted contrary to the purposes and principles of United Nations.[12] The exception under Article 33(2) is very broad as the term national security has relative meaning.

Moreover, it does not mention the kinds of acts that could lead to the exercise of national security giving the states wide discretion. The Article 33(2) exception seems redundant as the Article 1(F) provides adequate chances to look after the national security concerns and exclude those refugees who have committed terrorist acts or heinous crimes. The states often try to evade their obligations towards the asylum seekers under the garb of national security concerns.

The low thresholds and expansive utilization of the Article 33(2) exceptions could have a fatal impact barring genuine refugees from protection and pose an innate impediment to the unanimous acknowledgment of non-refoulement as jus cogens.[13] Hence, the Article 33(2) exception should be read in limited manner and used reasonably as it cannot be absolutely scrapped as it is also imperative to protect the security of the people of the host countries.

Application of the principle

The issue of refugee refoulement is remarkably observable in the Rohingya Refugee crisis as it is a clear case of the dilemma between the prohibition against refoulement and State sovergnity.

The Rohingyas are the persecuted Muslim minority targeted by violent attacks by the Government of Myanmar and Buddhist nationalists in the state of Rakhine in Myanmar.[14] Due to this people fled to neighbouring countries such as Bangladesh, Malaysia, India and Indonesia. However, some states were not able to cope with the huge amount of influx because of the over-crowded camps, monetary and resource constraints forcing the refugees to go back to Myanmar to inescapable persecution and torture[15] which would cause great injustice to them.[16]

Bangladesh and India claimed that the deportation of Rohingyas is justified under Article 33(2) of the 1951 Convention as it poses a threat to national security and state sovergnity. India claimed that if Rohingyas are given refuge then their vulnerability could be exploited by Islamic extremist groups.[17] Also, the siphoning in of more resources to take into account the need of Rohingyas would deprive its citizens of their basic fundamental rights creating a huge burden on natural resources.

Although both Bangladesh and India are not signatory to the 1951 Refugee Convention but still they are bound by it.[18] Neither India has acceded to 1951 Refugee Convention nor possesses a national law with regard to the protection of refugees.

This suggests that protection policies are discretionary permitting India to seek a selective approach to apply the principle which hints upon the weak enforcement norms. Despite the principle being recognised as a jus cogens norm, India is deviating from its obligations to protect refugees which is not only a violation of non-refoulement principle but also of the human rights enshrined under Article 21 of the Constitution of India.[19]

The states citing financial and economic reasons to legally close the border as there is no other way to reduce the financial and economic burden, resource contsraints, food and land problem and security issues, delegitimizes the legal standing of the principle.

This shows that states abide by the principle as a matter of international obligation but when their needs grow and resources become scarce then they prioritise the need and safety of its own citizens’ needs. The jus cogens nature of the principle acts as an estoppel to the states to act against it and thereby secures the status of the principle. In spite of the possibly burdensome principle, states are bound by it even if it causes pressure on their resources.

Conclusion and Suggestions
Over the years, the principle of non-refoulement which is the cornerstone of international jurisprudence has developed and become a customary rule of international law and steadily attained a jus cogens status.[20] The principle as a jus cogens norm is of critical importance as there are more than 21 million people who have been forced to flee worldwide.[21]

The refugee crisis is getting worse and due to the increased number of refugees, states resort to the exceptions. If states are allowed to deviate from the principle then it would render the non-refoulement principle meaningless. Therefore, a balance should be struck between the national security and individual liberty.[22]

Further, these are the following recommendations that are intended to resolve the aforementioned issues:
  1. The current international refugee laws and the exceptions to it should be reconsidered. The parameters of the principle should be clarified to avoid the states to interpret the principle in a way that serves their interest. Moreover, the exceptions are unnecessarily broad and give wide discretion to the states. Hence, the principle of non-refoulement should be expansively applied and the exceptions prohibitively, and as a measure of last resort to uphold the new jus cogens norm and safeguard the underlying refugee protection regime.[23]
     
  2. The exceptions should be read in an extremely strict and restricted way. This can be done in the following manner: Article 1(F) should be read in such a way that only the true culprits falling under it are returned. For this purpose, it should be ensured that states do not give frivolous reasons for their return and provide detailed reasons to show that the person falls within the purview of the exception.
     
  3. The notion of ‘burden sharing’ should be implemented as an international system to cope with mass influx of refugees. This would help to ensure that the burden of protecting refugees is evenly distributed between the states that are overburdened and the states that are totally isolated from the refugee problem. The states protecting countless number of refugees face extraordinary strain on their resources and to make this conceivable it is essential for the states to cooperate and bear the burden in solidarity.
     
  4. Another viable solution to deal with large-scale influx of refugees is the notion of temporary protection. This would provide practical and immediate response by giving temporary protection. As the system is ad hoc, it should be harmonised, codified and internationally recognised in order to avoid frivolous use of temporary protection to circumvent the non-refoulement principle.

End-Notes:
  1. The 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954 [hereinafter 1951 Convention]
  2. Article 1A (2) of the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954.
  3. The 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force 4 October 1967 [hereinafter 1967 Protocol].
  4. United Nations. Implementation of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. UNHCR. Accessed May 12, 2020. https://www.unhcr.org/excom/scip/3ae68cbe4/implementation-1951-convention-1967-protocol-relating-status-refugees.html.
  5. Convention against Torture. OHCHR. Accessed May 8, 2020. https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.
  6. Cartagena Declaration on Refugees, 22 November 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, at 190-93 (1984-85) [hereinafter, Cartagena Declaration]. https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.
  7. United Nations. The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93. Refworld. Accessed May 7, 2020. https://www.refworld.org/docid/437b6db64.html.
  8. Article 42 of 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954.
  9. United Nations Convention on the Law of Treaties, Signed at Vienna 23 May 1969, Entry into Force: 27 January 1980. 53 - United Nations Convention on the Law of Treaties, Signed at Vienna 23 May 1969, Entry into Force: 27 January 1980. https://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/53.html.
  10. United Nations Convention on the Law of Treaties, Signed at Vienna 23 May 1969, Entry into Force: 27 January 1980. 64 - United Nations Convention on the Law of Treaties, Signed at Vienna 23 May 1969, Entry into Force: 27 January 1980. https://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/64.html.
  11. Allain, and Jean. Jus Cogens Nature of Non Refoulement. OUP Academic. Oxford University Press, October 1, 2001. https://doi.org/10.1093/ijrl/13.4.533.
  12. Article 1F of the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954.
  13. United Nations. Note on Non-Refoulement (Submitted by the High Commissioner). UNHCR. Accessed May 6, 2020. https://www.unhcr.org/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html.
  14. The Plight of the Rohingya. RefLaw. Accessed May 6, 2020. http://www.reflaw.org/the-plight-of-the-rohingya/
  15. Kumar, Aman, Situating the Principle of Non Refoulement in the Indian Legal Scenario. Accessed May 8, 2020). https://ssrn.com/abstract=3316317 or http://dx.doi.org/10.2139/ssrn.3316317
  16. Why Rohingya Refugees Shouldn't Be Sent Back to Myanmar. Amnesty International. Accessed May 11, 2020. https://www.amnesty.org/en/latest/news/2018/11/why-rohingya-refugees-shouldnt-be-sent-back-to-myanmar/.
  17. Chaudhary, Omar. "Turning Back: An Assessment of Non-Refoulement under Indian Law." Economic and Political Weekly39, no. 29 (2004): 3257-264. Accessed May 1, 2020. www.jstor.org/stable/4415288.
  18. https://countercurrents.org/2018/10/deporting-rohingya-will-violate-the-principle-of-non-refoulement
  19. Article 21 of The Constitution of India.
  20. Duffy, Aiofe. Expulsion to Face Torture? Non-refoulement in International Law, International Journal of Refugee Law, Volume 20, Issue 3, October 2008, Pages 373–390, https://doi.org/10.1093/ijrl/een022
  21. 8 Ways to Solve the World Refugee Crisis. Amnesty International. Accessed May 6, 2020. https://www.amnesty.org/en/latest/campaigns/2015/10/eight-solutions-world-refugee-crisis/.
  22. United Nations. Joint Statement on the Rohingya Refugee Crisis. UNHCR. Accessed May 7, 2020. https://www.unhcr.org/news/press/2017/10/59e4c17e5/joint-statement-rohingya-refugee-crisis.html.
  23. Foysal, Quazi Omar. Rohingyan Repatriation and the Principle of Non-Refoulment. OHRH, August 20, 2018. http://ohrh.law.ox.ac.uk/rohingyan-repatriation-and-the-principle-of-non-refoulment.

    Award Winning Article is Written By: Ms.Tanisha Papdiwal

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