The escalating number of refugees is a matter of great concern. Over 30 million Africans find themselves as displaced individuals, refugees, or seeking asylum in foreign lands. Globally, the count surpasses 84 million forcibly displaced individuals, meaning that approximately one in every 94 people is facing forced displacement. The international law principle of non-refoulement is a practical guide to refugees as expounded in this post.

This significant figure largely stems from conflicts and political instability, with the pursuit of peace remaining more a topic of discussion than a reality.

The recent applicability of international law, particularly the principle of non-refoulement under critical circumstances, presents complex challenges.

Since the aftermath of World War II, the global community has recognized the importance of safeguarding the human rights of displaced individuals. This responsibility was crucial then and holds even greater urgency now.

This led to the establishment of the 1951 Refugee Convention and its subsequent 1961 Protocol, outlining states’ obligations to safeguard those escaping perilous situations.

The causes for such displacement are diverse, ranging from conflicts to disasters, political oppression, and other dire circumstances, including environmental factors like droughts, famine, and floods. Notably, refugee rights advocates have also highlighted environmental concerns as valid reasons for displacement.

Among the provisions of the convention, a key aspect is that refugees and asylum seekers have the right to a fair legal hearing for their cases.

What is the principle of non-refoulement?

The non-refoulement principle is a cornerstone in safeguarding international human rights, protecting refugees, and upholding humanitarian and customary laws.

It fundamentally prevents States from transferring individuals from their jurisdiction if there is a substantial risk of irreparable harm upon return, such as persecution, torture, or serious human rights violations.

International human rights frameworks explicitly enshrine this principle, such as the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).

Similarly, regional instruments like the Inter-American Convention on the Prevention of Torture, the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union outline similar principles.

Furthermore, both international and regional human rights bodies, as well as national courts, emphasize that non-refoulement is a binding obligation to uphold, protect, and fulfill human rights.

It’s noteworthy that various human rights treaty bodies, such as the Committee Against Torture, the Human Rights Committee, the Committee on the Elimination of Discrimination Against Women, and the Committee on the Rights of the Child, regularly receive individual petitions related to non-refoulement issues.

What is the UNHCR’s definition?

Based on UNHCR’s scope of the definition of this principle, it has an inherent element of the prohibition of torture and other forms of ill-treatment. That means its absolute nature characterizes non-refoulement without any exception. In this respect, the scope of this principle under relevant human rights law treaties is broader than that contained in international refugee law. The prohibition applies to all persons, irrespective of their citizenship, nationality, statelessness, or migration status. It involves wherever a State exercises jurisdiction or effective control, even outside that State’s territory.

Interpretation of non-refoulement

Interestingly, various courts and international human rights mechanisms interpret the scope of the non-refoulement principle differently.

They understand it to encompass a wide range of serious human rights violations.

While some instances primarily relate to torture, other cruel, inhuman, or degrading treatment, there are additional situations such as the flagrant denial of fair trial rights, risks to the rights to life, personal integrity, or freedom, severe forms of gender-based violence, death penalty cases, and instances of female genital mutilation. Prolonged solitary confinement is also included, among others.

Moreover, in certain cases, courts and international human rights mechanisms have extended the interpretation to cover severe violations of economic, social, and cultural rights. This expansion is justified by the notion that such violations could represent extreme infringements on the right to life or freedom from torture or other cruel, inhuman, or degrading treatment or punishment.

For example, inadequate living conditions, lack of access to medical care, or mental health issues have been recognized as factors preventing the return of individuals, in line with the non-refoulement principle.

Who else should be included when non-refoulement is considered?

Surprisingly, we must also heighten our consideration for children within the context of non-refoulement.

This entails that states must take actions in accordance with the child’s best interests.

For instance, states should avoid sending a child back if such a return would violate their fundamental human rights, including situations where there is a risk of inadequate food or health services.

Application of non-refoulement

The principle of non-refoulement is understood by all countries that have signed the UN instruments on refugees.

Regrettably, there is a growing trend of nations turning away refugees and forcibly deporting them.

The UK’s proposal to relocate asylum seekers to Rwanda echoes similar strategies employed by countries like Australia and Israel. Moreover, countries such as Denmark, Italy, and France, among others, have displayed reluctance in extending assistance to these vulnerable individuals.

Tragically, Ukraine and numerous other nations have found themselves in the position of being refugees in foreign lands.

While complete prevention or cessation of migration may be unrealistic, its management is feasible. One of the primary means to extend support to desperate and displaced individuals is by offering them refuge within our own countries.

To read more refugee articles, go here.