Principle of Non-Refoulement and its Absolute Nature

By Akkiraju Chandralekha, SLS Pune

Editor’s Note: The principle of non-refoulement is a major concept in public international law, dealing specifically with refugee laws within the human rights regime. The principle basically says that a refugee, once entered another country, cannot be forced back to his original country unless under some very specific circumstances. This paper helps us understand the concept in much more detail, while also analyzing those ‘specific’ conditions.

INTRODUCTION

Etymology:

Refoulement” means pushing back, turning back, driving back or forcing back.[i]

The principle of Non-Refoulement in Customary International Law:

Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.[ii]

The principle of Non –refoulement is used in various conventions and in various contexts ,thus the said principle can be roughly categorized into the following:

  1. In the context of International Refugee laws , this principle finds its place in various International Conventions.
  • Article 33 of the 1951 Convention Relating to the Status of Refugees.[iii]
  • 1967 Declaration on Territorial Asylum adopted unanimously by the United Nations General Assembly (UNGA).[iv]
  • Article II (3)1969 Organization of Africa Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.[v]
  • Section III Para 5 of 1984 Cartagena Declaration.[vi]
  1. It is also applied as a component part of the prohibition on torture or cruel, inhuman or degrading treatment or punishmen.[vii]
  • Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[viii]
  • Article 7 of the 1966 International Covenant on Civil and Political Rights.[ix]
  • Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.[x]

NON-REFOULEMENT IN EUROPEAN CONVENTION OF HUMAN RIGHTS:

 The principle of non-refoulement finds expression in ECHR through extradition. For example, Article 3(2) of the 1957 European Convention on Extradition precludes extradition.

Article 3 (2) of the European Convention on Human Rights reads as follows,

if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offense has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.’

The principle of non-refoulement in the sphere of international refugee law is not absolute, meaning that considerations like national security would allow the nation states to violate this principle. Unlike the other international conventions, this principle in the European Convention on Human Rights is absolute. The European Court of Human Rights upheld the absolute nature of this principle in the famous case of Saadi v.Italy[xi]

NON-REFOULEMENT IN EUROPEAN COURT OF HUMAN RIGHTS:

Article 3 of the ECHR, which prohibits torture, inhuman or degrading treatment or punishment, imposes positive obligations on states, including the obligation of non-refoulement (i.e. the obligation not to return an individual to a country where that individual is likely to be subjected to treatment that violates Article 3). This obligation has been clearly outlined and enforced by the European Court of Human Rights since Soering v United Kingdom[xii] and Chahal v United Kingdom[xiii].

Since the commencement of the ‘War against Terrorism’, however, some governments have argued that they ought to be entitled to deport suspected terrorists, even to countries where they may be at risk of Article 3 treatment, provided they have acquired diplomatic assurances that the individual will be protected from such treatment.[xiv]

These claims have been extremely controversial, particularly since diplomatic assurances are not legally binding; there is no recourse for the individual against the state that has given the assurance in the event of its breach (unless some kind of legitimate expectation claim could be successfully constructed, which seems somewhat unlikely) – as diplomatic tools they are enforced (or not) through diplomatic channels.

However, diplomatic assurances are not always insufficient to meet the receiving state’s obligations: if the assurance covers the prohibited activities, relates to a situation over which the assuring state has control, and comes from a reliable source then arguably the receiving state can rely on it.[xv] One of the primary questions to arise since 2001, however, is whether the suspected involvement of the individual concerned in terrorist activity in any way reduces a state’s positive obligations under Article 3.

This question was directly addressed by the European Court of Human Rights in judgment in Saadi v Italy [xvi]. The case concerned a Tunisian citizen whom Italy wished to return to Tunisia but who claimed that he was likely to be subjected to behavior violating Article 3 on his return and therefore that Italy had an obligation of non-refoulement towards him.

The Italian government had received an assurance from Tunisia that Tunisian law guaranteed a fair trial and prisoners rights and that Saadi would be treated in strict conformity with these national laws. Pursuant to that assurance, Italy claimed compliance with its Article 3 obligations; Saadi claimed that the assurance did not satisfy Article 3.

Although the Court accepted the grave difficulties that contemporary terrorism poses to states, it rejected the argument offered by the United Kingdom, which was a third party intervener to the proceeding, that in relation to suspected terrorists the court ought to weigh the community interest against the risk of violative conduct perpetrated by a third party state (in this case, Tunisia). According to the Court, at paragraph 138:

Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above).

It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.

And at paragraph 140:

“With regard to the second branch of the United Kingdom Government’s arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either.

It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Cour, therefore,e sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”.

On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been sown for believing that there is a real risk that the person concerned will be subjected i the receiving country to treatment prohibited by Article 3.”

The Court accepted that diplomatic assurances might be sufficient in some cases to satisfy a state’s Article 3 obligations, but this was not the case here given the strong evidence of widespread torture and ill-treatment in Tunisian detention facilities. Thus Saadi could not be deported; any deportation would violate Article 3.

CONCLUSION

According to me, the  absolute nature of non refoulement is two sided. There cannot be a definite nod or dismissal for the absolute nature. The principle should be followed from a case to case basis. The principle, although necessary to prevent human right violations should be subjected to limitations with respect to considerations like security of the concerned nations or assurances by other nations.

Formatted on February 21st, 2019.

Footnotes

[i] Oxford dictionary.

[ii]  Sir Elihu Lauterpacht and Daniel Bethlehem The scope and content of the principle of non-refoulement: Opinion; available at  http://www.unhcr.org/419c75ce4.html

[iii] No. 2545, 189 UNTS 150  (hereinafter ‘1951 Convention’); A/RES/2132 (XXII) of 14 Dec. 1967.

[iv] Resolution 2132 (XXII), 14 December 1967

[v] 1001 UNTS 45 (hereinafter ‘OAU Refugee Convention’).

[vi]

[vii] Supra 2

[viii] A/RES/39/46, 10 Dec. 1984 (hereinafter ‘Torture Convention’).

[ix] 999 UNTS 171, 6 ILM (1967) 368 (hereinafter ‘ICCPR’).

[x] European Treaty Series No. 5 (hereinafter ‘European Convention on Human Rights’).

[xi] Application no. 37201/06 ,28 February 2008

[xii] Application no. 14038/88

[xiii] (22414/93) [1996] ECHR 54 (15 November 1996)

[xiv] Fiona de Londras; Saadi v Italy – The ECtHR Reaffirms Article 3’s Absolute Protection; Centre for Criminal Justice and Human Rights; available at http://www.ucc.ie/law/blogs/ccjhr/2008/03/saadi-v-italy-ecthr-reaffirms-article.html

[xv] For more on this see, e.g., this piece originally published in theIrish Law Times).

[xvi] Application no. 37201/06)

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