March 30, 2018, Humanitarian Action / Law and War / Migration
The current discussions on the Global Compact for Migration and the Global Compact on Refugees have placed migration and refugee policies high on the multilateral agenda. From a humanitarian point of view, this is important and timely. It is essential that the international community recognizes and addresses the humanitarian assistance and protection needs of refugees and vulnerable migrants. Among these needs, protection against refoulement is essential for refugees and for a number of migrants, and well-established under international law.
Throughout history, high numbers of persons have left, or have been forced to leave, their countries of origin. In many cases, on their journey to reach a place of safety, a better economic future, or both, these persons face severe hardship. One key concern upon arrival is whether or not they will be allowed to stay in a given country. Under international law, States have a right to regulate the stay of foreigners in their territory and may send them back to their country of origin. This prerogative is, however, not absolute and may only be exercised with due regard to other rules of international law.
In order to protect the most fundamental human rights of any migrant or refugee, States have developed the principle of non-refoulement. This principle, reflected in different bodies of international law, protects any person from being transferred (returned, expelled, extradited—whatever term is used) from one authority to another when there are substantial grounds for believing that the person would be in danger of being subjected to violations of certain fundamental rights.
The principle is multi-faceted and its scope and application vary from context to context in accordance with the applicable law. Here are five key points that explain the importance and relevance of the principle of non-refoulement in the wider migration context.
*The principle of non-refoulement is found in different bodies of international law
The principle of non-refoulement is most often referred to in the context of refugee protection, given its codification in Article 33 of the Convention relating to the Status of Refugees (Refugee Convention) and in regional refugee law instruments. Over the past decades, however, the principle has also been included in human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 16) and in regional human rights instruments. Moreover, the UN Human Rights Committee has considered that non-refoulement is an integral component of the protection against torture or other forms of cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life. Similar conclusions were drawn by regional human rights courts, in particular the European Court of Human Rights (Soering v. The United Kingdom, para. 88). Interestingly, already in 1949, the principle of non-refoulement was also included in the 1949 Geneva Conventions, primarily with regard to detainee transfers, but also to protect the civilian population. At its core, the principle of non-refoulement is considered to form part of customary international law.
Under refugee law, the principle of non-refoulement applies to both refugees and asylum seekers. In addition to being protected against refoulement, refugees are entitled to a number of other rights provided under that body of law. In contrast, protection against refoulementunder human rights law means a person cannot be returned, but will not automatically mean that the person has to be granted refugee status and be afforded all of the rights that refugees are entitled to. In all circumstances, however, a State must respect, protect and fulfil the human rights of all persons under its jurisdiction.
The main difference between the principle of non-refoulement under its different codifications is the question of who falls under its protection and for what reasons. Under refugee law, it protects refugees against return to places of persecution, while under IHL it only applies to certain categories of persons that are affected by armed conflicts. Under human rights law, the principle of non-refoulement can protect any person under a State’s jurisdiction, provided a pertinent danger exists in the State to which the person shall be transferred. Depending on the applicable human rights treaties, the principle protects individuals against different dangers that may not be covered by other bodies of law, such as a risk of death penalty, cruel punishment, or child recruitment and participation in hostilities, regardless of whether the danger to the person is based on a discriminatory ground or not. While refugee law recognizes certain narrowly defined exceptions to the principle of non-refoulement, the principle is absolute under other bodies of law.
2. The principle of non-refoulement is applicable whenever a person falls within the jurisdiction of a State
Under refugee and human rights law, it is understood that the principle of non-refoulement protects persons that are under the jurisdiction of a State. This is the case when a person is within a State’s territory, in its territorial sea, or when the State exercises effective control over the person. Under refugee law, there is great support for the view that the principle applies to rejection at a State’s border. Moreover, in recent years human rights bodies and courts have been clear that the principle also applies when States operate extraterritorially, including during interception or rescue operations in the high seas. There is, admittedly, some debate as to when exactly a person falls under the jurisdiction of a State. While it has been argued that in the context of border closures or ‘pushback operations’ the principle of non-refoulement applies because the State aims ‘to exercise effective control over the physical movement of migrants, even if only through the direct prevention of such movement in a certain direction’, the traditional view is that a State needs to exercise effective—meaning physical—control over a person for human rights law to apply.
3. The principle of non-refoulement can protect persons fleeing armed conflict
The principle of non-refoulement applies regardless of whether a person flees from a country that enjoys peace or a country involved in an armed conflict: if there are substantial grounds for believing that the individual in question would be in danger of being subjected to violations of certain fundamental rights, the person cannot be returned. This would be the case, for instance, for a leader of an opposition group who would in all likelihood be tortured or summarily executed upon return.
While the principle of non-refoulement is traditionally understood as protecting against an individualized threat, it may also protect against more situational threats. As many conflicts are fought on religious, ethnic or political grounds, UNHCR has convincingly argued that civilians fleeing from armed conflicts often face persecution on one of these grounds and qualify as refugees. Regional instruments, legally-binding for most African States and non-legally binding in Latin America and Asia, also recognize refugee status and protection for persons fleeing armed conflicts or other situations seriously disturbing public order. A number of States have included such broad definitions in their national laws. In addition, the European Court of Human Rights has found that the principle of non-refoulement applies if a person is not individually targeted, but where the threat comes from ‘the most extreme cases of general violence, where there is a real risk of ill-treatment [or violations of the right to life] simply by virtue of an individual being exposed to such violence on return’ (i.e. N.A v. the United Kingdom, para. 115).
4. The principle of non-refoulement protects against direct and indirect measures that force a person to leave
The principle of non-refoulement prohibits not only the direct forcible return of persons in the above-described situations, but also indirect measures that have the same effect.
It is generally agreed that the principle protects persons from being transferred to a State which may not itself threaten the individual, but which would not effectively protect the person against onward transfer in violation of the principle of non-refoulement (called indirect, chain or secondary refoulement).
Jurisprudence and expert opinions (see International Law Commission (article 10, including sources cited in commentary); and Committee against Torture (para. 14)) also support the view that the principle of non-refoulement prohibits States not only from directly transferring a person to a place of danger (return decision enforced by the State), but also from taking certain disguised or indirect measures that create circumstances leaving an individual with no real alternative other than returning to a place of danger. Some dispute that this is a legal prohibition. There is also, admittedly, a need for clarifying the scope of such a norm. However, it is rather compelling that if a State cannot lawfully return an individual, the principle of non-refoulement should also be understood as also prohibiting indirect measures designed to circumvent this prohibition.
5. The principle of non-refoulement requires procedural safeguards
In order to ensure that a person is not returned to a place where he or she would be in danger of certain fundamental rights violations, essential procedural safeguards are required. Under international and regional human rights law, persons with an arguable claim that they would be returned in violation of the non-refoulement principle have the right to an effective remedy. This would at least require that the individual needs to be informed of the transfer or return decision in a timely manner and be able to challenge the decision before an independent and impartial body. Given the seriousness of the danger at stake, returns must be suspended pending a decision. Importantly, these safeguards need to apply in all cases, including where a State purports to return people to an allegedly safe country or has obtained diplomatic assurances for the treatment of the person.
For a more in depth discussion on this topic
- See the recently published Note on migration and the principle of non-refoulement in the International Review of the Red Cross.
 The ICRC, like the other components of the International Red Cross and Crescent Movement, uses a deliberately broad description of ‘migrants’ to include all people who leave or flee their home to seek safety or better prospects, and who may be in distress and need protection or humanitarian assistance. This approach shall not be understood, however, as undermining the fact that international refugee law foresees specific status and protections for persons qualifying as refugees.
 See Convention (III) relative to the Treatment of Prisoners of War, 1949, Art. 12; Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949, Art. 45(3, 4). In the ICRC’s view, in non-international armed conflicts the fundamental protections contained in Common Article 3 are to be understood as prohibiting parties to the conflict from transferring persons in their power to another authority when those persons would be in danger of suffering a violation of those fundamental rights upon transfer.
 For an analysis of pertinent case law and expert views, see Rodenhäuser, Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control, International Journal of Refugee Law, Volume 26, Issue 2, 2014, pp. 242-45.