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
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.
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
The principle is enshrined in Article 33 of the 1951 Convention relating to the
Status of Refugees. 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.
The 1951 Convention and its 1967 Protocol are the only instruments which have
worldwide acceptance to deal with the rights of refugee and regulate their
status. 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, Cartagena Declaration on Refugees,
1984 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.
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
First, acceptance by international community of States as a whole
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 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 and Article 64 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
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
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. The exception under Article 33(2) is very broad as the term national
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
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. 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. 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 which would cause great injustice to
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. 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. Neither India has acceded to 1951
Refugee Convention nor possesses a national law with regard to the protection of
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.
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. 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.
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.
Further, these are the following recommendations that are intended to resolve
the aforementioned issues:
- 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.
- 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.
- 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.
- 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
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Award Winning Article is Written By: Ms.Tanisha Papdiwal
Authentication No: SP31134784335-15-920