Non-refoulement: A Cornerstone of International Human Rights Law

What is Non-refoulement?

Non-refoulement is a fundamental principle of international law that protects individuals from being sent back to a country where they would face serious threats to their life or freedom. It essentially means that no one should be returned to a place/country where they may face cruel, inhuman, or degrading treatment, punishment, or torture. This concept is key to the statutes of the United Nations, especially the 1951 Refugee Convention (Article 33), which states:

“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.”

The principle is also reinforced in other UN instruments, such as the Convention Against Torture (Article 3), which prohibits returning anyone to a country where they risk torture, and is recognized as a norm of customary international law.

Why Does Non-refoulement Matter?

Non-refoulement is designed to ensure that people fleeing persecution, torture, or other serious harm are not forced back into danger. It applies to everyone-refugees, asylum seekers, and migrants-regardless of their legal status.

Four Applications of Non-refoulement and the Challenges for States

1. Asylum Procedures at Borders

Application:
When someone arrives at a country’s border seeking asylum, the state must not turn them away without first assessing whether they face a real risk of harm if returned.

Challenge:
States often struggle to balance border control with their obligations under the principle of non-refoulement. There may be violations of the principle, especially when resources or political will are limited. This may occur during periods of mass arrivals or heightened security concerns. In such situations, there is pressure to expedite or deny entry, sometimes resulting in “pushbacks” or summary returns without proper assessment.

2. Deportation and Expulsion

Application:
If a person already inside a country is found to be undocumented or to have committed a crime, the state may wish to deport them. Non-refoulement requires that, before deportation, authorities assess whether the person would face persecution, torture, or inhuman treatment upon return.

Challenge:
States may face dilemmas when national security or public order is at stake. Balancing the protection of the population with the rights of individuals subject to deportation can be extremely challenging, particularly when evidence about risks in the destination country is unclear or contested.

3. Transfers to Third Countries

Application:
Some states have agreements to transfer asylum seekers to third countries deemed “safe.” Non-refoulement in this case would mean that states must ensure the third country will not send the person onwards to a place of danger, as may be referred to as no “indirect refoulement”.

Challenge:
Determining whether a third country is genuinely safe is a complex process. There may be doubts about the third country’s asylum system, human rights protections, or willingness to uphold non-refoulement. States risk breaching their obligations in most of these cases.

4. Emergency Situations and Mass Influx

Application:
During wars or humanitarian crises, large groups may seek refuge. Non-refoulement applies even in emergencies, requiring states not to return people en masse without individual assessments.

Challenge:
States may lack the capacity to process large numbers of arrivals and may feel overwhelmed. There is also a temptation to close borders or return people quickly, but doing so without proper procedures can violate the non-refoulement principle and expose individuals to grave risks.

Why Is This So Challenging for States?

• Sovereignty vs. International Law: States have the right to control their borders and determine who enters, but the principle of non-refoulement places a legal and moral limit on this power.

• Resource Constraints: Processing asylum claims fairly and thoroughly requires sufficient resources, trained personnel, and adequate time.

• Security Concerns: States worry about national security, particularly in cases involving alleged criminals or terrorism suspects.

• Political Pressures: Public opinion and political climate can influence how strictly states adhere to the principle of non-refoulement, especially during migration crises.

Conclusion

Non-refoulement is a vital safeguard in international human rights law, protecting people from being sent back into harm’s way. While its application is relatively straightforward in principle, real-world challenges make it difficult for states to always comply. For human rights students, advocates, and citizens, understanding both the legal foundation and the practical difficulties is key to engaging with refugee and migration issues in today’s world.

What do you think of this principle, its benefits, application, and associated difficulties?