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Principle of 'non-refoulement' - Rule of customary international law

Tugushi, George (2004)
Department of Law
Abstract
This thesis studies the very cornerstone of the international refugee law-the principle of non-refoulement. Since its introduction in the 1951 Convention, this principle has played a key role in the protection of refugees. Last 50 years have generated many questions and various interpretations of the scope of the Article 33 of the 1951 Convention on the Status of Refugees. States have tried to get around their international obligations through the usage of grey areas, which remain in the scope of interpretation of the principle. Both, States and refugees often are having hard time while searching for relevant legal grounds when trying to invoke non-refoulement principle. It has been argued that Article 33 is without prejudice to the right... (More)
This thesis studies the very cornerstone of the international refugee law-the principle of non-refoulement. Since its introduction in the 1951 Convention, this principle has played a key role in the protection of refugees. Last 50 years have generated many questions and various interpretations of the scope of the Article 33 of the 1951 Convention on the Status of Refugees. States have tried to get around their international obligations through the usage of grey areas, which remain in the scope of interpretation of the principle. Both, States and refugees often are having hard time while searching for relevant legal grounds when trying to invoke non-refoulement principle. It has been argued that Article 33 is without prejudice to the right of States to extradite. Analysis of various treaties, doctrine and state practice prove that the refugees should be protected from the extradition to a country where they have well-founded reasons to fear persecution on the grounds enumerated in Article 1(A) (2) of the 1951 United Nations Convention relating to Status of refugees. It has always been problematic to prove that Article 33 applies to persons who are outside the country and have not crossed the border yet. States in their practice and in their recorded views have recognised that non-refoulement applies to the moment at which asylum seekers present themselves for entry. Some factual elements such as human rights violation in the country of origin are sometimes necessary in order to trigger the application of the principle. However there should be no doubt that the principle for today encompasses both non-return and non-rejection at the frontier. Principle has been under a huge threat in case of mass influx. Some States were successful in interdiction of large number of refugees. States usually argued that the principle is not applicable in the situation of mass influx. There should be no doubt that non-refoulement principle also covers the large scale influx situations, and it's a duty of any state to refrain from sending the refugee and asylum seeker to the territory were they may be persecuted. States are obliged to protect refugees, and consequently they are obliged to abide by non-refoulement through time. That time is not and cannot be determined by any principle in international law, but likewise the duty to accord non-refoulement through time cannot be separated in practice from that other complex duty which recognizes the responsibility of the community to finding durable solutions. There are still some 50 States, which are not party to the 1951 convention and 1967 protocol. It means that such States are not formally bound by the Convention and Protocol, in particular the provision relating to non-refoulement. Does it mean that such States have full freedom from the obligations relating to treatment of refugees? The answer to this question is negative and all the States, which have not ratified the abovementioned treaties, are bound by the non-refoulement principle as it forms the part of general international law.Sir Elihu Lauterpacht CBE QC, Daniel Bethlehem, Barrister, the scope and content of the principle of the Principle of Non-Refoulement, Opinion, UNHCR, 20 June 2001 May be it is the time for changes which will result in drafting of a new Convention, which will better define the status of refugees and offer them better protection? Or at least new additional protocol could be of some help. Another option, which comes to my mind, is the adoption of new resolution by the UN General Assembly, which will give more clarification to the scope of the principle. Time has proved that the existence of non-refoulement provision in the 1951 convention has been the main safeguard for refugees and has protected millions of innocent people, who were fleeing persecution. At the same time it was ineffective in some cases, which will be discussed below and show that the time for changes in the system of refugee protection has arrived a while ago. (Less)
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author
Tugushi, George
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1554838
date added to LUP
2010-03-08 15:22:39
date last changed
2010-03-08 15:22:39
@misc{1554838,
  abstract     = {This thesis studies the very cornerstone of the international refugee law-the principle of non-refoulement. Since its introduction in the 1951 Convention, this principle has played a key role in the protection of refugees. Last 50 years have generated many questions and various interpretations of the scope of the Article 33 of the 1951 Convention on the Status of Refugees. States have tried to get around their international obligations through the usage of grey areas, which remain in the scope of interpretation of the principle. Both, States and refugees often are having hard time while searching for relevant legal grounds when trying to invoke non-refoulement principle. It has been argued that Article 33 is without prejudice to the right of States to extradite. Analysis of various treaties, doctrine and state practice prove that the refugees should be protected from the extradition to a country where they have well-founded reasons to fear persecution on the grounds enumerated in Article 1(A) (2) of the 1951 United Nations Convention relating to Status of refugees. It has always been problematic to prove that Article 33 applies to persons who are outside the country and have not crossed the border yet. States in their practice and in their recorded views have recognised that non-refoulement applies to the moment at which asylum seekers present themselves for entry. Some factual elements such as human rights violation in the country of origin are sometimes necessary in order to trigger the application of the principle. However there should be no doubt that the principle for today encompasses both non-return and non-rejection at the frontier. Principle has been under a huge threat in case of mass influx. Some States were successful in interdiction of large number of refugees. States usually argued that the principle is not applicable in the situation of mass influx. There should be no doubt that non-refoulement principle also covers the large scale influx situations, and it's a duty of any state to refrain from sending the refugee and asylum seeker to the territory were they may be persecuted. States are obliged to protect refugees, and consequently they are obliged to abide by non-refoulement through time. That time is not and cannot be determined by any principle in international law, but likewise the duty to accord non-refoulement through time cannot be separated in practice from that other complex duty which recognizes the responsibility of the community to finding durable solutions. There are still some 50 States, which are not party to the 1951 convention and 1967 protocol. It means that such States are not formally bound by the Convention and Protocol, in particular the provision relating to non-refoulement. Does it mean that such States have full freedom from the obligations relating to treatment of refugees? The answer to this question is negative and all the States, which have not ratified the abovementioned treaties, are bound by the non-refoulement principle as it forms the part of general international law.Sir Elihu Lauterpacht CBE QC, Daniel Bethlehem, Barrister, the scope and content of the principle of the Principle of Non-Refoulement, Opinion, UNHCR, 20 June 2001 May be it is the time for changes which will result in drafting of a new Convention, which will better define the status of refugees and offer them better protection? Or at least new additional protocol could be of some help. Another option, which comes to my mind, is the adoption of new resolution by the UN General Assembly, which will give more clarification to the scope of the principle. Time has proved that the existence of non-refoulement provision in the 1951 convention has been the main safeguard for refugees and has protected millions of innocent people, who were fleeing persecution. At the same time it was ineffective in some cases, which will be discussed below and show that the time for changes in the system of refugee protection has arrived a while ago.},
  author       = {Tugushi, George},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Principle of 'non-refoulement' - Rule of customary international law},
  year         = {2004},
}