Since the inception of the 1951 Convention Relating to the Status of Refugees (‘The Convention’), there has been much discourse surrounding the principle of non-refoulement and the varying measures that states take to implement (or skirt) their obligations.
Article 33(1) of The Convention 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.
This provision may seem straightforward in that states are strictly bound to obey the principle of non-refoulement. However, states are still able to negate this clause with little consequence. This is partly due to the high regard for the principle of state sovereignty in international law. The notion of sovereignty means that the international law system is horizontal, rather than vertical and that each state sees itself as the supreme power governed by no other body, not even overarching international law mechanisms such as the United Nations. Therefore, as states answer to themselves, there is little legal consequence for a breach of international law, unless treaty provisions are further entrenched in either domestic law or regional instruments.
One way in which the non-refoulement principle may be better protected is through the furtherance of regional human rights instruments. The regions of Europe, America and Australia will be explored to better understand just how regional human rights instruments can ensure nations comply with the non-refoulement principle.
The principle of non-refoulement is further enshrined in the European Convention on Human Rights. The Convention creates extra obligations for states in Europe, all of whom are legally bound to follow its rules and the judgment rulings of the European Court of Human Rights. Indeed, in the case of Sharifi and Others v. Italy and Greece, the European Court of Human Rights intervened to prevent a group of Afghan migrants being returned to Greece. The court held that if the migrants were returned, there was significant risk that they would eventually be refouled to Afghanistan, which constituted ‘chain refoulement’ and thus still violated the non-refoulement principle.
The European Court of Human Rights has emphasised that the European Convention on Human Rights, which has been held to include non-refoulement under Article 3 (prohibition on torture, inhuman or degrading treatment), is a living instrument and should be interpreted in line with the conditions of the present day. This level of interpretation has not yet been applied to the Refugee Convention. It is clear that in this case the regional human rights instruments in Europe have been able to expand the scope of the non-refoulement principle to include situations that were not envisaged at the inception of the Refugee Convention in 1951.
The Inter-American Convention on Human Rights also enshrines the principle of non-refoulement under Article 22, and adds further qualifications in that it allows no exceptions to the principle, unlike the 1951 Convention.
In addition, the Inter-American Commission on Human Rights, created in 1969, has broad powers to ‘publicise human rights matters by way of reports, studies, lectures’ as well as advisory services. The Commission also has the ability to publish special reports in relation to human rights. These mechanisms add enhanced accountability to states and make it more difficult to contravene human rights without backlash from the international community.
The US Supreme Court has also assisted in developing law to build on exceptions to the non-refoulement principle. In the past, US Coast Guards were instructed to ‘prevent the arrival of vessels bearing likely asylum seekers’, and in the 1990’s instructions were issued to mandate ‘immediate return to Haiti’without any sort of screening process. This was seen in the Sale v. Haitian Centres Council case, where the US Supreme Court struck down challenges to the turn-backs, finding that the non-refoulement principle does not explicitly prevent the use of procedural barriers operating ‘beyond a state’s frontiers’. This is in contrast to the findings of a UN Executive Committee, who mandate that even in cases of large-scale influx, the ‘fundamental principle of non-refoulement including non-rejection at the frontier must be scrupulously observed’.
These examples from America highlight that despite more rigid regional human rights instruments, the principle of non-refoulement can still be avoided. However, the existence of regional human rights mechanisms do make avoidance more difficult.
The above examples may be contrasted with that of Australia. Australia is not party to any regional human rights instrument concerning refugees and does not have a bill of rights. Indeed, there is little legal recourse for the contravention of the principle of non-refoulement. It is mostly customary international law which dictates how Australia may forgo their obligations.
As held in the Malaysia Declaration Case, in the absence of regional human rights instruments, Australia must look to its own domestic law to ensure it lives up to international human rights standards. Here, the High Court struck down a deal brokered between the Malaysian and Australian governments which facilitated for the transfer of 800 ‘illegal maritime arrivals’ to Malaysia in exchange for 4000 refugees already residing in Malaysia. Indeed, in the absence of regional human rights instruments, Australia must look to its own domestic law to ensure it lives up to international human rights standards. Ultimately, this deal did not go ahead due to the fact that it was inconsistent with the Migration Act, which required that for a Refugee to be transferred to another country, there had to be a declaration that that country lived up to international human rights obligations. As Malaysia is not a state party to the Refugee Convention, this was not the case.
Although this was a win in upholding the principle of non-refoulement, it also raised an alarming prospect: all Australia had to do to sidestep its obligations was change its domestic law.
Evidently, this is not enough as boatloads of asylum seekers attempting to make it to Australia are regularly turned back at sea. This policy has been condemned by the United Nations, for the process does not allow for the individual assessment of the person’s asylum claim. The UN has urged Australia to bring their policies in line with their humanitarian obligations. However, these recommendations are ignored time and time again by Australia.
Thus, in the absence of both regional human rights instruments and a bill of rights, Australia is able to regularly refouler asylum seekers with little consequence.
In all, it is clear that the principle of non-refoulement presents a complex issue which states choose to grapple with in different ways. What is clear from this analysis is that the non-refoulement principle is not unavoidable, and the more rigid instruments that are in place, the less room states have to negate their obligations.
Emily is a penultimate law and international studies student at Deakin University. She is passionate about changing the way International Law is applied in Australia.