International Refugee Law

Obscuring the Asylum-Seeker in the Refugee: A Note on the Ambit of Non-Refoulement in Refugee Law

The problems of mass exodus of refugees and their influx into a nation have put international refugee law at a crossroads time and again. Questions such as whether the principle of non-refoulement is applicable to situations of mass exodus have also been under consideration of the international community for over a long period of time – in an effort spasmodically pursued by state behaviour and consistently contentious with the global refugee program administrator, the UNHCR. Further, the supposed territoriality application of this principle and the competing considerations of national security and humanitarianism have clouded this field of international law with sufficient doubts. This paper seeks to evaluate the existing literature and the development of the law, as evidenced by contemporary state practice on the subject and seeks to make an argument for the pre-eminence of the principle of non-refoulement even in cases where states have attempted to put forth exceptions to the rule by citing security reasons and instances of mass exodus.

Under Article 33 of the Convention Relating to the Status of Refugees, 1951, the Contracting States are prohibited from returning a refugee in any manner whatsoever to the frontiers of territories where he would be subjected to persecution. This is known as the principle of non-refoulement, with the state so sending back referred to by the French word refouler. However, certain nations have issued declarations under various circumstances that ‘asylum-seekers’, especially those who come through boats, can be interdicted and ordered to leave the territorial waters of such nations, even if it meant forcibly sending them back. The question whether such mass repatriation of ‘asylum-seekers’ amounts to a violation of the principle of non-refoulement has been answered both in the affirmative and negative by the domestic courts of these nations and by the international community.

The fact that the term ‘asylum-seeker(s)’ is being put forth for the purposes of this argument is creating fundamental nomenclature problems. The distinction that states strike here is that one who lawfully pleads entry is an asylum-seeker while one, by whatever means, has somehow found his presence in the territory of another state becomes a refugee. However, this distinction is artificial and rather perverse, for a person illegally entering might have to show greater than the one standing at the borders that he does not attract any of the exception clauses in Article 33(2). It appears that the purpose of conferring this uneasy legal status to a person as an ‘asylum-seeker’, not being a ‘refugee’ under the Convention, but one still satisfying the substantive requirements thereunder, enables states to evade the exacting pressures of the Refugee Convention. This is rightly so because if these persons were to be termed ‘refugees’, it would amount to doing two things with legal repercussions: firstly, the state so saying might be forced to agree that the persons in question are indeed refugees under international law; secondly, there is the problem of automatic application of the caveat in Article 33 that prohibits, in any manner whatsoever, the return of these persons and thus rendering, even the interdiction of these people for the purpose of forcing them to leave by coercion, illegal. We argue that regardless of this distinction between refugees and asylum-seekers, if at all one exists, the prohibition in Article 33 is wide enough to cover all those who are on the verge of a border or have entered a border, subject to the only condition that the person so entering fears one or more of the kinds of persecutions that the Convention lists.

The preceding paragraph does not, however, seek to cast doubts on the prevalence of the term ‘asylum-seekers’ in international law before the 1951 Convention. In fact, the law on seeking and providing what has been referred to as ‘diplomatic asylum’ was considered by the ICJ in the Asylum case, in 1950, before the Convention came into being. The term ‘asylum’ can be categorically traced back to the UDHR, which provides, in very generic terms, that a person fleeing persecution has the right to seek and to enjoy asylum in other countries. Introspection shows that this provision was neither intended at that time to create legal consequences for states, nor was it envisaged then that an exclusive convention on refugees under the UN aegis would be born. Thus, the right to asylum was used in a normative sense and on somewhat comparable lines to what is today the legal doctrine of non-refoulement. This was potentially a nascent move towards according legal status to the rule which was suddenly heightened by the fact that the Refugee Convention did not use the word ‘asylum-seeker’ but consistently adhered the ‘refugee’ terminology. It is doubtful if it was predicted then that the term refugee – naturally implied to include and subsume within it all its nomenclatural synonyms and variations, a fact well evidenced by the wide definition in Article 1(A) – would create problems like the ones we are witnessing now, a distinction between a refugee and an asylum-seeker.

However, there has come to be a view that the principle of non-refoulement embodied in Article 33 of the Refugee Convention is applicable only to those who have gained admission to the territory, even if illegally, but not to those who seek asylum at the frontiers. Apart from the theoretical distinction that we seek to thwart between refugees and asylum-seekers, there has been this self-legitimized follow-up action that states have taken on the basis of this distinction. It is put forth by these states that since asylum-seekers have not entered borders, including territorial waters, the states would have a right to refoul them outside their borders since the Convention is territorially operative and cannot apply to or control state parties’ activities outside their borders. Supporters of this view resort to the travaux préparatoires of the Convention where, they argue evidence can be found that the participants in the Conference took pains to record the same. However, the deliberations show the contrary. Some states even went further to stress that Article 33 did not cover cases of mass migration. Judge Edwards, in Haitian Refugee Center v. Gracey, observed “that ‘expulsion’ would refer to a ‘refugee already admitted into a country’ and that ‘return’ would refer to a ‘refugee already within the territory but not yet resident there’.” Thus, it is argued that the Convention was not intended to govern parties’ conduct outside their national borders. This view has found recognition and approval within the academic community as being correct. These scholars argue that even the UNHCR has implicitly acknowledged that the Convention has no extraterritorial application, though the validity of this argument is yet to be tested.

It is also argued that state practice in this area has been consistent with this provision. Commentators point out instances such as these, in Sale v. Haitian Centers Council, Inc., where the US Supreme Court upheld the order of President Bush declaring the immediate return of all passengers in the Haitian boats seeking asylum to Port-Au-Prince without any screening as valid on the ground that the Refugee Convention does not apply outside the territory of a state party. Various other states in applying the principle of non-refoulement with regard to return of asylum-seekers at the frontiers have followed this precedent. Thus, it is believed by these commentators that a categorical refusal to allow disembarkation cannot be equated with breach of the principle of non-refoulement, even though it may result in serious consequences for asylum-seekers. Even if such a refusal amounted to a breach, it has been observed that the silence maintained by the international community during the mass repatriations concerning the Rwandan and Kosovo refugees, suggests that the principle can be violated with no adverse consequences.

Further, there is no doubting that terrorists are far more likely to pursue illegal migration channels to infiltrate a state than to use asylum procedures as, according to normal procedure, asylum-seekers are subject to rigorous identity and security checks, document verification, administrative scrutiny, suspicion of credibility, and, in some states, mandatory administrative detention. The nations which support this theory resort to Security Council Resolution 1373 (2001) which has declared that all member countries shall ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts. Also, under customary international law, in order to safeguard the population (i.e., of the state in which asylum is sought), as in the case of mass influx of persons, refugees may be rejected at the frontier, more so, when there is a possibility of entry of terrorists in the guise of asylum-seekers. The General Assembly Declaration on Territorial Asylum provides that exception may be made to the principle of non-refoulement for national security reasons in order to safeguard the population, as in the case of a mass influx of persons.

However, we submit that the acceptance of this principle as a rule of international law would undermine the very existence of refugee law. The Security Council and the General Assembly Resolutions in this context cannot be seen as clarifying or substantially qualifying what is in quite unequivocal terms in the Convention. The binding nature of Security Council Resolutions under Article 25 of the Charter read with Article 103, as one even above any other treaty obligation – to the extent of modification of those obligations – has not been that easy a conclusion and the scholarly community has quite consistently cautioned that the Security Council is incompetent to alter or modify treaty obligations. The position of law should be assumed to be expressly clarified by the General Assembly in a later resolution, where the Assembly, while condemning terrorist activities, “Stressed the importance of full compliance by States with their obligations under the provisions of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, including the principle of non-refoulement of refugees to places where their life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group or political opinion, and affirming that the present Declaration does not affect the protection afforded under the terms of the Convention and Protocol and other provisions of international law.”

Rightly, the UNHCR has declared that the principle of non-refoulement applies to asylum-seekers both at the borders and within the territory. In fact, in the light of state practice since 1951, a strong case can be made that non-refoulement now includes non-rejection at the frontiers, and further that non-refoulement of refugees has crystallized as a rule of customary international law binding on all States.

With respect to mass influx, it has very weakly and very rarely been asserted that the non-refoulement rule ceases to apply in such situations. On the contrary the Executive Committee of the UNHCR has expressly stated that in such cases “the fundamental principle of non-refoulement … must be scrupulously observed.” It has also reaffirmed the fundamental importance of the observance of the principle of non-refoulement at the border and within the territory of a state, of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.

In the situations of large-scale influx, the so-called asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection. However, during a mass exodus, it may not be possible to carry out individual screening or RSD procedures by the High Commission. In such circumstances, particularly when civilians are fleeing for similar reasons, it may be appropriate to declare ‘group’ determination of refugee status, whereby each civilian is considered a refugee, prima facie – in other words, in the absence of evidence to the contrary.

Regardless of any other consideration, if a person is fleeing persecution, armed conflict, threats to life or abject poverty, that person is entitled to minimum human rights and minimum standards of treatment. Even in situations of mass influx, where other priorities like national security may prevail, the emphasis on individual procedural rights may be replaced by a group or categories approach.

It also appears that the principle of non-refoulement cannot be violated on the ground that persecution has not emanated from the state. Persecution may also emanate from entities for which no link with the state can be established and which the state is unable to control. Persecution that does not involve state complicity is still, nonetheless, persecution. Perhaps, an analogous phenomenon in the law can be seen here as useful to construct this argument. When states traditionally do bear international responsibility for the wrongful acts committed by private actors on its territory, with certain qualifications though, it can be seen that when a state is unable to prevent violence against its own people, it has failed in its paramount duty to protect the life and property of its citizens, thus subjecting them to persecution indirectly. The normative underpinnings behind the rule against refoulement have been taken to the level of arguing that a State, which returns a refugee, causes persecution akin to an accomplice of the persecutor. Furthermore, the UNHCR believes that non-refoulement has gained customary status, and even ius cogens.

It is true that under Article 33(2) of the Refugee Convention, if there are reasonable grounds for regarding a refugee as a danger to the national security of the country of refuge, the protection against refoulement under Article 33 (1) cannot be availed of. This rule needs to be interpreted restrictively and the assessment of the danger needs to be individual and ex futuro. Thus, refoulement may be done only if a provable danger to the national security or community of the country of refuge exists, which is possible only when refugees are given an opportunity to establish their refugee status. International law, in keeping with its high human rights standards and the object of the Convention, should be assumed to have relinquished this discretion to states in the strictest manner. Indeed, while this being apart, it has even been suggested that the substantive issue relating to what is actually ‘persecution’, should be considered from a perspective that would underline the subjective nature of the issue, providing for refugee status on prima facie proof. If an issue, as important as proof of persecution itself could take a beneficial meaning, it needs to be asked why the technicalities of Article 33 should not give way to the object and purpose of the Convention. A fair, efficient and expeditious procedure for the determination of refugee status even in situations involving large numbers is definitely obligatory under international law.

As might be seen, this paper seeks no modification or rewriting of the international refugee law regime. It rather carves an argument in favour of removing the practices that have been plaguing the issue by trying to state what would be the right interpretation of the Convention. The paper sees a merely corrective role for states and the UNHCR through an effective clarificatory process.