Non-refoulement: the search for a consistent interpretation of article 33.

• Author: D'Angelo, Ellen F.

ABSTRACT

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention). The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement. The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or 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. According to the definition in Article 33, non-refoulement is applicable only where there is an affirmative classification of refugee status as articulated in Article 1. The 1951 Convention and its 1967 Protocol are currently the guiding instruments on refugee law, and the 1951 Convention provides a minimum foundation for the rights of refugees.

Even though the 1951 Convention clearly outlines non-refoulement as an obligation of the 133 state signatories, the international debate focuses on the correct interpretation and scope of the principle in practice. A restrictive reading of Article 33 suggests that non-refoulement has narrow application to only those refugees who have already entered the territory of a receiving state. Opponents to the restrictive reading of Article 33, however, maintain the duty of non-refoulement is limited only by the affirmative classification of refugee status--the 1951 Convention imposes no other restrictions or requirements for persons seeking asylum.

States have adopted a variety of positions for implementation, which fall on a continuum based on their interpretation of non-refoulement. In addition, states have formulated legal mechanisms that coincide with their beliefs as to the extent of domestic obligations under Article 33. Because of these varied interpretations, the implementation of non-refoulement is inconsistent among states and the destiny of many refugees depends upon whether they reach the border of a state that interprets Article 33 more favorably than its neighbor. This Note argues for the necessity of a consistent international approach to the implementation of non-refoulement and analyzes the differing interpretations of Article 33 through judicial decisions to determine the state's legal, rather than political, position on the duty of non-refoulement.

TABLE OF CONTENTS I. INTRODUCTION II. FRAMING THE DEBATE AND ESTABLISHING THE METHODOLOGY A. Framing the Debate: Different Sides of the Refugee Issue B. Establishing the Methodology: Discerning the Various Positions on Article 33 III. SURVEYING THE LANDSCAPE: DIFFERENT APPROACHES STATES HAVE TAKEN TO IMPLEMENT THE PRINCIPLE OF NON-REFOULEMENT A. The Absolute State Sovereignty Approach B. The Collective Approach to Non-Refoulement C. The Collective Approach with a Twist D. The Restrictive Definitional Approach IV. MOVING TOWARD UNIFORMITY: FINDING CONSENSUS ON THE OBLIGATION OF NON-REFOULEMENT A. The Need for a Uniform Interpretation B. The Role of Durable Solutions V. CONCLUSION I. INTRODUCTION

1946: the International Refugee Organization (IRO), operating under the United Nations, assisted 1.6 million refugees in resettling and reintegrating into their European communities after the conclusion of World War II, not including those who fled Europe completely. (1) 1987: a staggering 13 million refugees were concentrated solely in Africa and Asia. (2) 2005-2006: the world experienced a global increase of 56 percent from 21 million to 32.9 million persons of interest to the United Nations High Commissioner for Refugees. (3) 2006: of the recoverable data, 3.5 million refugees are under the age of eighteen. (4)

As globalization increases, problems that often faded into the backdrop of domestic policy now require international attention. Suddenly, the challenges facing one state become the challenges facing many, and the rest of the world feels even the smallest developments. In the context of refugees, issues surrounding the movement of people across borders necessitate collective action in response to massive amounts of people displaced by the most horrific conflicts and conditions in modern history. (5) The era of stagnant domestic solutions has ended.

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention). (6) The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement. (7) Non-refoulement prohibits states from returning refugees to territories where their life or freedom would be threatened for one of the reasons listed in the 1951 Convention. (8) The principle pertains to the refugee's right not to be sent back to his or her country of origin unless there is a negative determination of refugee status. (9) Under Article 33, non-refoulement is only applicable where there is an affirmative classification of refugee status as defined by Article 1. (10)

Non-refoulement is articulated in the 1951 Convention as a binding legal duty imposed on the signatories of the treaty; however, it is also considered by some scholars to be a foundational principle in the protection of refugee rights and customary international law. (11) Domestic courts of various states and scholars have found that non-refoulement applies not only to the parties that have signed and ratified the 1951 Convention but also to non-signatories as a norm established by state practice: (12) "The prohibition on refoulement, contained in art. 33.1 of the Refugee Convention, is generally thought to be part of customary international law, the (unwritten) rules of international law binding on all states, which arise when states follow certain practices generally and consistently out of a sense of legal obligation." (13)

The history of the principle of non-refoulement coincides with the increasing pressure to acknowledge the growing refugee problem in the twentieth century. The 1933 Refugee Convention marked the first time a multilateral international treaty contained a non-refoulement provision. (14) The prohibition on refoulement, however, applied only to those refugees received as state-authorized arrivals. (15) Subsequent to the 1933 Refugee Convention, the United Nations General Assembly established the United Nations High Commissioner for Refugees (the UNHCR). (16)

Through official resolutions, the UN charged the UNHCR with providing aid to refugees entitled to protection by prior treaties and arrangements. (17) In addition, the UNHCR's mandate included overseeing "protection activities"; "for example, [the UNHCR was responsible for] ensuring that no refugee is returned to a country in which he or she will be in danger." (18)

Despite state protest, the drafters included the non-refoulement provision in Article 33 of the 1951 Convention, influenced by the vestiges of World War II, the 1933 Refugee Convention, and the work of the UNHCR. (19) The 1951 Convention and its 1967 Protocol are currently the guiding instruments on refugee law, and the 1951 Convention provides a minimum foundation for the rights of refugees. (20) Various regional instruments subsequent to the 1951 Convention solidified states' obligations of non-refoulement by explicitly delineating that a state may not reject a person at the border if it would force that person to return or remain in a territory where his life, liberty, or physical integrity would be threatened. (21) These regional instruments, however, bind a small number of states in comparison to the 1951 Convention. (22) The principle of non-refoulement is promulgated in other modern, non-binding instruments as a cornerstone of international refugee law. (23)

While non-refoulement is clearly outlined as an obligation to the 133 signatories of the 1951 Convention, the international debate focuses on the correct interpretation and scope of the principle in state practice. (24) Some states advocate an expansive reading of Article 33 while others insist that the plain text of the 1951 Convention narrows the scope of non-refoulement. (25) Part II outlines the debate regarding the manner in which Article 33 should be interpreted as well as the methodology developed in this Note, setting forth the embodiment of different state positions. Part III applies the methodology and surveys the landscape analyzing various approaches that state parties have taken to implement non-refoulement. Part IV proposes suggestions for remedying the lack of uniformity in complying with the obligation of non-refoulement under Article 33 of the 1951 Convention. Finally, Part V concludes the Note.

2. FRAMING THE DEBATE AND ESTABLISHING THE METHODOLOGY

   1. Framing the Debate: Different Sides of the Refugee Issue

      The basic theory behind the principle of non-refoulement has been established within the international community, and the language is crystallized in the 1951 Convention for state parties. (26) The Convention and its subsequent protocol, however, are not self-executing instruments (27) and lack specific guidelines for the implementation of non-refoulement. (28) The conceptual gap between obligation and implementation stems from the precondition that non-refoulement applies only to persons who are determined to be refugees under Article 1 of the 1951 Convention. (29) "The [1951] Convention does not, moreover, require that a contracting state adopt any particular procedure for determining refugee status." (30) Because there are no standardized procedures for determining those falling within the refugee definition, and because non-refoulement protection is limited to those defined as refugees, states have significant latitude in deciding which asylum-seekers have access to 1951 Convention...