General Principles of International Law
Non-Refoulement
In Brief
The international law principle of non-refoulement
prohibits the return of a refugee to a country where
he or she is likely to face persecution or torture.
This principle is a cornerstone of international refugee
law and has also become more broadly relevant to human
rights law.
Origins
Although the principle of non-refoulement
was present in international dialogue during the era of
the League of Nations, it was not formally codified until
the 1951 Refugee Convention. The influx of refugees into
the Allied countries following World War II (1939 -1945)
and the ensuing challenges this influx presented, underscored
the need for formal international standards and obligations
regarding the treatment of refugees. The 1951
Convention Relating to the Status of Refugees and 1967 Protocol
set forth formal legal obligations regarding the treatment
of refugees, defined as persons who, owing to a well-founded
fear of persecution for reasons of race, religion, nationality,
membership in a particular social group, or political opinion,
are outside their country of nationality and are either
unwilling or unable to avail themselves of the protection
of that country (Article 1).
Source Documents
The principle of non-refoulement
is codified in its best-known form in the 1951 Refugee
Convention. Article 33(1) 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 particular opinion.
In addition to the 1951 Refugee Convention, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (Article 3) and the 1966 International Covenant on Civil and Political Rights (ICCPR) (Article 7) all prohibit refoulement. Of these three treaties, at least one is in force in some 169 States. Thus, an overwhelming majority of the world’s States are bound by treaty law to respect the principle of non-refoulement. [i]
In addition, there are a number of other regional instruments and non-binding documents which reaffirm the principle of non-refoulement. These include:
-
1966 Principles Concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Committee (Article III(3))
-
1967 Declaration on Territorial Asylum adopted by the United Nations General Assembly (Res 2132 (XXII) 14 December, Article 3)
-
1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (Article II(3))
-
1969 American Convention on Human Rights (Article 22(8))
-
1984 Cartegena Declaration (Section III, paragraph 5)
Principle in
Practice
In recent years there has been debate in the international
community regarding the kind of State conduct which amounts
to refoulement. For
example, in the 1980s and 1990s, the
The non-refoulement
principle has also been invoked in discussions of extradition.
Both the 1957 European Convention
on Extradition (Article 3(2)) and the 1981 Inter-American
Convention on Extradition (Article 4(5)) preclude
extradition in cases where a person will be prosecuted
or punished as a result of his or her race, religion,
nationality or political opinion. [iii] Additionally,
the legislation implementing CAT obligations in the
International bodies have also affirmed the principle of non-refoulement. For example, the European Court of Human Rights (ECHR) has interpreted the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3) to prohibit refoulement and the principle is reaffirmed in more than 30 United Nations General Assembly Resolutions. [v] There is, however, debate about the scope of non-refoulement. For example, in Soering v. UK (7 July 1989), the ECHR found that more favorable human rights conditions in a claimant’s host country than in a claimant’s country of origin did not provide grounds asserting claims of non-refoulement. [vi]
Finally, scholars argue that State practice since the 1951 Refugee Convention has provided persuasive evidence that the principle has obtained the status of customary international law. No state has formally or informally opposed the principle but instead, where there have been objections to its application, States have challenged the refugee status of the individual concerned or have invoked exceptions to the principle. [vii]
Learn More
Office of the United Nations High Commissioner for
Refugees (UNHCR)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Committee against Torture (implementing body of the CAT)
Inter-American Commission on Human Rights (IACHR)
“The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens,” Michael John Garcia, Congressional Research Service: March 11, 2004.
“The Scope and Content of the Principle of Non-Refoulement: Opinion,” Sir Elihu Lauterpacht and Bethlehem, Daniel, UNCHR: 20 June 2001. Accessed 12/21/2005
The Refugee in International Law, Goodwin-Gill, Guy S., Oxford: Oxford, UP, 1996, 2nd,ed. See especially Chapter 4.
by Kate Brantingham, Program Officer, American Society of International Law
[i] Lauterpacht, Sir Elihu and Daniel Bethlehem, “The scope and content of the principle of non-refoulement: Opinon”, UNHCR: 20 June 2001, p. 5.
[iii] Supra ii
[iv] “The U.N. Convention
Against Torture: Overview of
[v] Id. pp 4-5.
[vi] Röhl, Katharina, “Fleeing Violence and Poverty: non refoulement obligations under the European Convention on Human Rights”, Working Paper No. 11, New Issues in Refugee Research, UNCHR, Evaluation and Policy Analysis Unit, January 2005, p. 8.
[vii] Goodwin-Gill, Guy S., The Refugee in International Law, Oxford: Oxford UP, 1996, 2nd ed, p. 167-169. For a discussion of State conduct related to refoulement, see also pp 129-137.