Refoulement
| Author | Joseph Rikhof |
| Pages | 588-705 |
588
Refoulement
A. INTRODUCTION
The principle of non-refoulement prohibits the direct or indirect removal
of refugees to a territory where they run the risk of being subjected to
human rights violations. This general principle has several permuta-
tions. While on the face of it, the obligation would apply to persons who
are in the territory of a country of refuge, it has been stipulated that the
prohibition of removal also applies to admission and entry at the border
of a state. As well, it has been said that the status of the person entering
a country of refuge to attain this protection is irrelevant in that it applies
to persons who are in the country legally or illegally.
The notion of territory of a state has given rise to some dicult
questions. For instance, when immigration ocers fulfill preclearing
duties at foreign airports to determine whether persons, including asy-
lum seekers, can board a plane, are they exercising their duties on the
territory of their own state, and, therefore, would a refusal amount to
The Refugee in International Law, 4th ed
3 Ibid The Rights of Refugees Under International Law,
2d ed
refoulement
Singh Juss, ed, Research Handbook on International Refugee Law
The Oxford Handbook of International Refu-
gee Law
Refoulement | 589
refoulement in the case of an asylum seeker? The UK House of Lords
concluded that such persons were not refugees in the sense of the
Refugee Convention since they had not left their country of origin, or
in the words of the court: “The conclusion must be that steps which
are taken to control the movements of such people who have not yet
reached the state’s frontier are not incompatible with the acceptance of
the obligations which arise when refugees have arrived in its territory.”
This question of whether the non-refoulement obligation has extra-
territorial application comes into even starker focus when it involves
persons on their way to a country of refuge in ships. While most com-
mentators and the United Nations High Commissioner for Refugees
(UNHCR) believe that there is such an extraterritorial application, the
response to this question by the courts in certain countries has been
considerably more muted. In when the US government intercepted
Haitian refugees on the high seas, with the result that they ended up
back in the country they were fleeing, the US Supreme Court concluded
that this did not violate US law by saying:
[B]oth the text and the negotiating history of Article of the Convention
indicate that it was not intended to have any extraterritorial eect. . . .
This case presents a painfully common situation in which desperate
people, convinced that they can no longer remain in their homeland,
4 ; ex parte European Roma Rights Centre
the law of the sea and the non-refoulement
Dastyari
International Journal of Refugee Law 1–27, and Violeta
eds, The Oxford Handbook of International Refugee Law
Note on the Principle of Non-refoulement (November 1997), under heading E,
Advisory Opinion on the Extraterritorial Application of Non-
refoulement Obligations Under the 1951 Convention relating to the Status of Refugees and its
1967 ProtocolMaritime Interception
Operations and the Processing of International Protection Claims: Legal Standards and Policy
Considerations with Respect to Extraterritorial Processing (November 2010) at 4, paras 12–13;
the Case of before the European Court of Human
Rights (14 November 2019).
590 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
take desperate measures to escape. Although the human crisis is com-
pelling, there is no solution to be found in a judicial remedy.
Similarly, in Australia the judiciary ruled that a country of refuge
can take steps to prevent the landing of persons who have been res-
cued from a sinking ship within the territorial waters of Australia and
transfer them to a third country, again confirming the limitation of the
obligation not to refoule people in the following words:
[I]t should be added that this is a municipal, and not an international,
court. Even if it were, whilst customary international law imposes an
obligation upon a coastal state to provide humanitarian assistance to
vessels in distress, international law imposes no obligation upon the
coastal state to resettle those rescued in the coastal state’s territory.
This accords with the principles of the Refugee Convention. By Art,
a person who has established refugee status may not be expelled to a
territory where his life and freedom would be threatened for a Con-
vention reason. Again, there is no obligation on the coastal state to
resettle in its own territory.
Another issue, which was already discussed during the travaux
préparatoires, was the interplay between extradition and refoulement,
which can be broken into two main questions. The first one is whether
extradition and deportation proceedings can be carried out at the same
time given the fact that their purposes are dierent. Second, does an
extradition request for a refugee prevail over the obligation of non-re-
foulement? With respect to the first issue, the problem of disguised
extradition comes into play. The dierence between the two procedures,
deportation and extradition, has been described as follows:
[E]xpulsion of an alien is a unilateral act undertaken by a State to
remove an alien whose continuing presence in its territory is contrary
7 Sale v Haitian Centers Council
Haitian Centre for Human
Rights et al v United States
agreed with it in ; ex parte European Roma Rights
Centre
R(ST) v Secretary of State for the Hoe Department
Ruddock v VadarlisCPCF v Minister for Immigration
and Border Protection
Australian Journal of Administrative Law at 76–101.
To continue reading
Request your trial