International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
March 2006, Volume 1, Issue 1

General Principles of International Law


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.

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:

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 United States undertook a Haitian interdiction program whereby boatloads of Haitian asylum-seekers were met at sea, outside U.S. territory, and under Executive Order were turned back to Haiti, many without having their refugee status determined.  In Sale, Acting Commissioner, INS v. Haitian Centers Council, the Supreme Court held that neither domestic law nor the 1951 Refugee Convention limited the power of the President to repatriate undocumented aliens found on the high seas. [ii]   However, advocates for refugees remain critical of this type of State conduct, in particular when asylum seekers are turned away without their refugee status having been determined.

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 United States (CFR Title 8, 208.16-208.18 and 1208.16-1208.18) prohibit the removal of aliens to countries where they are more likely than not to face torture. [iv]

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 U.S. Implementation Policy Concerning the Removal of Aliens,” Michael John Garcia, Congressional Research Service: March 11, 2004, p. 8.

[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. 

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Editors: James G. Apple, Katherine Brantingham and Andrew Solomon.
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