Note on Non-Refoulement (Submitted by the High Commissioner)

EC/SCP/2

EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER'S PROGRAMME
Twenty-eighth session
SUB-COMMITTEE OF THE WHOLE ON INTERNATIONAL PROTECTION

Introduction

1. The most essential component of refugee status and of asylum is protection against return to a country where a person has reason to fear persecution. This protection has found expression in the principle of non-refoulement which, as will be seen below, is widely accepted by States.

Legal basis of non-refoulement

2. The principle of non-refoulement has been defined in a number of international instruments relating to refugees, both at the universal and regional levels.

3. On the universal level mention should first be made of the 1951 United Nations Convention relating to the Status of refugees, which, in Article 33(1), provides that:

"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."

4. This provision constitutes one of the basic Articles of the 1951 Convention, to which no reservations are permitted. It is also an obligation under the 1967 Protocol by virtue of Article I(1) of that instrument. Unlike various other provisions in the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a Contracting State. The words "where his life or freedom would be threatened have been the subject of some discussion. It appears from the travaux préparatoires that they were not intended to lay down a stricter criterion than the words "well-founded fear of persecution" figuring in the definition of the term "refugee" in Article 1 A (2). The, different wording was introduced for another reason namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but to any country where a person has reason to fear persecution.

5. The fact that 70 States have already become parties to the 1951 Refugee Convention and/or to the 1967 Protocol is an indication of the wide acceptance of the principle of non-refoulement expressed in Article 33(1).

6. Also at the universal level, mention should be made of the United Nations Declaration on Territorial Asylum unanimously adopted by the General Assembly in 1967. In article 3(1) of this Declaration it is stated that:

"No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution."

7. On the regional level the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 gives expression in binding form to a number of important principles relating to asylum, including the principle of non-refoulement. According to Article III(3):

"No person may be subjected by a member State to measures such as rejection at the frontier, return or expulsion, which should compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article 1, paragraphs 1 and 2."

8. Again, Article 22(8) of the American Human Rights Convention adopted in November 1969 provides that:

"In no case may an alien be deported or returned to a country regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions."

9. In the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 September 1967, it is recommended that member governments should be guided by the following principles:

"1. They should act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory.

2. They should in the same spirit ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to or remain in a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion."

10. Finally, in the Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966, it is stated that:

"No-one seeking asylum in accordance with these Principles should, except for over-riding reasons of national security or safeguarding the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory." (Article III(3).)

11. In addition to statements in the above international instruments adopted at the universal and regional levels, the principle of non-refoulement has also found expression in the constitutions and/or ordinary legislation of a number of States. Because of its wide acceptance at universal level, it is being increasingly considered in jurisprudence and in the work of jurists as a generally recognized principle of international law.

Exceptions to the principle of non-refoulement

12. While the principle of non-refoulement is basic in character, it is recognized that there may be certain cases in which an exception to the principle can legitimately be made. Thus Article 33(2) of the 1951 Refugee Convention provides that:

"The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."

13. Such exception based on factors relating to the person concerned does not figure in the other instruments - either universal or regional - mentioned above. Provision is, however, made for certain other general exceptions, viz: "over-riding considerations of national security or in order to safeguard the national security or protect population,"¹ "in order to safeguard national security or protect the community from serious danger".²

14. In view of the serious consequences to a refugee of being returned to a country where he is in danger of persecution, the exception provided for in Article 33(2) should be applied with the greatest caution. It is necessary to take fully into account all the circumstances of the case and, where the refugee has been convicted of a serious criminal offence, to any mitigating factors and the possibilities of rehabilitation and reintegration within society.

Practice of States in regard to non-refoulement

15. In evaluating the practice of States in regard to the principle of non-refoulement, it, should be emphasized that the principle applies irrespective of whether or not the person concerned has been formally recognized as a refugee. In the case of persons who have been formally recognized as refugees under the 1951 Convention and/or the 1967 Protocol, the observance of the principle of non-refoulement as expressed, in Article 33 should not normally give rise to any difficulty. Moreover, where a special procedure for the determination of refugee status under the 1951 Convention and the 1967 Protocol exists, the applicant is almost invariably protected against return to his country of origin pending a determination of his refugee status.

16. There are, however, a number of situations in which the observance of the principle of non-refoulement is called for, but where its application may give rise to difficulties of a technical nature. Thus the person concerned may find himself in a State which is not a party to the 1951 Convention or the 1967 Protocol, or which, although a party to these instruments, has not established a formal procedure for determining refugee status. The authorities of the country of asylum may have allowed the refugee to reside there with a normal residence permit or may simply have tolerated his presence and not have found it necessary formally to document his recognition as a refugee. In other cases, the person concerned may have omitted to make a formal request to be considered a refugee.

17. In situations of this kind it is essential that the principle of non-refoulement be scrupulously observed even though the person concerned has not - or has not yet - been formally documented as a refugee. It should be borne in mind that the recognition of a person as a refugee, whether under the Statute of UNHCR or under the 1951 Convention or the 1967 Protocol, is declaratory in nature. Since the Committee's twenty-seventh session, there have been a number of cases of persons not formally recognized a's refugees being returned to their country of origin despite the fact that they had a justified fear of persecution, or where their claim to such fear of persecution was not even examined.

Conclusion

18. While the principle of non-refoulement is universally recognized, the danger of refoulement could be more readily avoided if the State concerned has accepted a formal legal obligation defined in an international instrument. This underlines the importance of further accessions to the 1951 Convention and the 1967 Protocol. States that have not yet acceded to these instruments should nevertheless apply the principle of non-refoulement in view of its universal acceptance and fundamental humanitarian importance.

19. In the field of non-refoulement, particular regard should be had to the fact that a determination of refugee status is only of a declaratory nature. It should not, therefore, be assumed that merely because a person has not been, formally recognized as a refugee he does not possess refugee status and is therefore not protected by the principle of non-refoulement.

1 Declaration on Territorial Asylum, Article 3(2). Principles relating to the Treatment of Refugees adopted by the -Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966 (Article III(2)).

2 Resolution of the Committee of Ministers of the Council of Europe of 29 September 1967 on Asylum to Persons in Danger of Persecution.