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The Refugee in International Law, 3rd Edition by Goodwin-Gill, Guy S.; McAdam, Jane (22nd March 2007)

Part 2 Asylum, 5 Non-Refoulement in the 1951 Refugee Convention

From: The Refugee in International Law (3rd Edition)

Guy S. Goodwin-Gill, Jane McAdam

Subject(s):
Non-refoulement — Asylum — Deportation — Nationality of individuals — Gross violations — Geneva Conventions 1949 — NGOs (Non-Governmental Organizations) — Territorial sea — Innocent passage

(p. 201) Non-Refoulement in the 1951 Refugee Convention

The principle of non-refoulement prescribes, broadly, that no refugee should be returned to any country where he or she is likely to face persecution, other ill-treatment, or torture. In this chapter, the scope of the principle is examined against the background of a number of recurring issues: the question of ‘risk’; the personal scope of the principle, including its application to certain categories of asylum seekers, such as stowaways or those arriving directly by boat; exceptions to the principle; extraterritorial application; extradition; and the ‘contingent’ application of the principle in situations of mass influx.

1.  Evolution of the principle

The term non-refoulement derives from the French refouler, which means to drive back or to repel, as of an enemy who fails to breach one’s defences. In the context of immigration control in continental Europe, refoulement is a term of art covering, in particular, summary reconduction to the frontier of those discovered to have entered illegally and summary refusal of admission of those without valid papers.1 Refoulement is thus to be distinguished from expulsion or deportation, the more formal process whereby a lawfully resident alien may be required to leave a State, or be forcibly removed.

The idea that a State ought not to return persons to other States in certain circumstances is of comparatively recent origin. Common in the past were formal (p. 202) agreements between sovereigns for the reciprocal surrender of subversives, dissidents, and traitors.2 Only in the early- to mid-nineteenth century do the concept of asylum and the principle of non-extradition of political offenders begin to concretize, in the sense of that protection which the territorial sovereign can, and perhaps should, accord. At that time, the principle of non-extradition reflected popular sentiment that those fleeing their own, generally despotic governments, were worthy of protection.3 It was a period of political turmoil in Europe and South America, as well as of mass movements of populations occasioned by pogroms against Jewish and Christian minorities in Russia and the Ottoman Empire.

A sense of the need to protect the persecuted can be gathered from the UK’s 1905 Aliens Act, where section 1 made an exception to refusal of entry for want of means in respect of those ‘seeking to avoid prosecution or punishment on religious or political grounds or for an offence of a political character, or persecution involving danger of imprisonment or danger to life or limb on account of religious belief’. Not until after the First World War, however, did international practice begin to accept the notion of non-return, and only in 1933 does the first reference to the principle that refugees should not be returned to their country of origin occur in an international instrument.4 In article 3 of the 1933 Convention relating to the International Status of Refugees, the contracting parties undertook not to remove resident refugees or keep them from their territory, ‘by application of police measures, such as expulsions or non-admittance at the frontier (refoulement)’, unless dictated by national security or public order.5 Each State undertook, ‘in any case not to refuse entry to refugees at the frontiers of their countries of origin’. Only eight States ratified this Convention, however; three of them, by reservations and declarations, emphasized their retention of sovereign competence in the matter of expulsion, while the United Kingdom expressly objected to the principle of non-rejection at the frontier.

Agreements regarding refugees from Germany in 1936 and 1938 also contained some limitation on expulsion or return.6 They varied slightly: broadly, (p. 203) refugees required to leave a contracting State were to be allowed a suitable period to make arrangements; lawfully resident refugees were not to be expelled or sent back across the frontier7 save ‘for reasons of national security or public order’; and even in such cases, governments undertook not to return refugees to the German Reich,8 ‘unless they have been warned and have refused to make the necessary arrangements to proceed to another country or to take advantage of the arrangements made for them with that object’.

Action in the inter-war period focused principally on improving administrative arrangements to facilitate resettlement and relieve the burden on countries of first asylum. The need for protective principles for refugees began to emerge, but limited Ratifications of instruments containing equivocal and much qualified provisions effectively prevented the consolidation of a formal principle of non-refoulement. Nevertheless, the period was also remarkable for the very large numbers of refugees not in fact sent back to their countries of origin, whether they fled Russia after the revolution, Spain, Germany, or the Ottoman Empire.9

Following the Second World War, a new era began. In February 1946, the United Nations expressly accepted that ‘refugees or displaced persons’ who had expressed ‘valid objections’ to returning to their country of origin should not be compelled to do so.10 The International Refugee Organization was established the same year, charged with resolving the problems of displacement left over from the war; some 1,620,000 refugees were assisted with resettlement and integration, while many others fleeing political developments in Eastern Europe were readily admitted to western countries.11

In 1949, the United Nations Economic and Social Council (ECOSOC) appointed an Ad hoc Committee to ‘consider the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons and, if they consider such a course desirable, draft the text of such a convention’.12 The Ad hoc Committee on Statelessness and Related Problems (p. 204) met twice in New York in January–February and August 1950,13 and drew up the following provision, considered so fundamental that no exceptions were proposed:

No contracting State shall expel or return 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 or political opinion.14

During this same period, however, States resisted inclusion of a right to be granted asylum, both in the 1948 Universal Declaration of Human Rights and in the 1951 Convention. The 1951 Conference of Plenipotentiaries also had concerns regarding the absoluteness of non-refoulement, adding the following paragraph to what was to become article 33:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.15

Apart from certain situations of exception, the drafters of the 1951 Convention clearly intended that refugees not be returned, either to their country of origin or to other countries in which they would be at risk.16

(p. 205) As expressed in article 33, the principle of non-refoulement raises questions as to its personal scope and relation to the issues of admission and non-rejection at the frontier. It is a rule clearly designed to benefit the refugee, the person who, in the sense of article 1 of the Convention, has a well-founded fear of being persecuted on grounds of race, religion, nationality, membership of a particular social group, or political opinion. In principle, its benefit ought not to be predicated upon formal recognition of refugee status which, indeed, may be impractical in the absence of effective procedures or in the case of a mass influx.17 Likewise, it would scarcely be consonant with considerations of good faith for a State to seek to avoid the principle of non-refoulement by declining to make a determination of status.

From the point of general, as opposed to treaty-based international law, the issue is rendered more problematic by developments in the refugee definition, as well as by uncertainties as to the scope and standing of non-refoulement outside the relevant international instruments. Extensions of UNHCR’s mandate might be interpreted as purely functional, in that they authorize the channelling of material assistance but do not justify insistence on the provision of protection through non-refoulement. States have argued in the not so recent past that, in regard to the expanded class, their obligations are humanitarian rather than legal, but that view clearly requires reconsideration in light of the consolidation of human rights protection.18 As shown below, State practice in cases of mass influx offers some support for the view that non-refoulement, or an analogous principle of refuge, applies both to the individual refugee with a well-founded fear of persecution, and to the frequently large groups of persons who do not in fact enjoy the protection of the government of their country of origin in certain fairly well-defined circumstances.

(p. 206) 2.  Relation of the principle of non-refoulement to particular issues

2.1  Admission and Non-Rejection at the Frontier

Those who argue in favour of the restrictive view of the obligations of States under article 33 sometimes rely on comments made by the Swiss and Dutch delegates to the Conference of Plenipotentiaries in 1951. The Swiss interpretation of non-refoulement would have limited its application to those who had already entered State territory, but they spoke only about mass migrations, saying nothing about the non-applicability of article 33 outside that context.19 The Dutch delegate considered that the word ‘return’ related only to refugees already within the territory, and that mass migrations were not covered.20 This narrow view did not fully square with the meaning of refoulement in European immigration law or with the letter of article 3 of the 1933 Convention, at least in their individual dimension. The words ‘expel or return’ in the English version of article 33 also have no precise meaning in general international law. The former may describe any measure, judicial, administrative, or police, which secures the departure of an alien, although article 32 possibly implies that measures of expulsion are reserved for lawfully resident aliens. The word ‘return’ is even vaguer; to the Danish representative it suggested such action as a State might take in response to a request for extradition.21 The Dutch delegate’s comments, however, primarily reflected concern that the draft article would require his government to grant entry in the case of a mass migration.22

Probably the most accurate assessment of States’ views in 1951 is that there was no unanimity, perhaps intentionally so. At the same time, however, States were not prepared to include in the Convention any article on admission of refugees; (p. 207) non-refoulement in the sense of even a limited obligation to allow entry may well have been seen as coming too close to the unwished-for duty to grant asylum.

Since then, the views of commentators on the scope of article 33 have varied,23 and little is to be gained today by further analysis of the motives of States or the meaning of words in 1951. Likewise, it is fruitless to pay too much attention to moments of entry or presence, legal or physical. As a matter of fact, anyone presenting themselves at a frontier post, port, or airport will already be within State territory and jurisdiction; for this reason, and the better to retain sovereign control, States have devised fictions to keep even the physically present alien technically, legally, unadmitted.24 Similarly, no consequence of Significance can be derived from repeated reliance on the proposition that States have no duty to admit refugees, or indeed, any other aliens. ‘No duty to admit’ begs many questions; in particular, whether States are obliged to protect refugees to the extent of not adopting measures which will result in their persecution or exposure to danger. State practice in fact attributes little weight to the precise issue of admission, but far more to the necessity for non-refoulement through time, pending the (p. 208) obtaining of durable solutions. For this reason, Noll describes non-refoulement in this context as ‘a right to transgress an administrative border.’25

Let it be assumed that, in 1951, the principle of non-refoulement was binding solely on the conventional level, and that it did not encompass non-rejection at the frontier. Analysis today requires full account of State practice since that date,26 as well as that of international organizations. Over the last fifty-five or so years, the broader interpretation of non-refoulement has established itself. States have allowed large numbers of asylum seekers not only to cross their frontiers, for example, in Africa, Europe, and South East Asia, but also to remain pending a solution.27 State practice, individually and within international organizations, has contributed to further progressive development of the law. By and large, States in their practice and in their recorded views, have recognized that non-refoulement applies to the moment at which asylum seekers present themselves for entry, either within a State or at its border.28 Certain factual elements may be necessary before the principle is triggered, but the concept now encompasses both non-return and non-rejection. A realistic appraisal of the normative aspect of non-refoulement in turn requires that the rule be examined not in isolation, but in its dynamic sense and in relation to the concept of asylum and the pursuit of durable solutions.

2.2  Conventions and Agreements

In addition to the 1951 Convention/1967 Protocol, the principle of non-refoulement is powerfully expressed in article 3 of the 1984 UN Convention against Torture (CAT84):

  1. 1.  No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

  2. 2.  For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 7 of the 1966 International Covenant on Civil and Political Rights (ICCPR66), which provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’, has been interpreted as (p. 209) containing an implied prohibition on refoulement.29 It is broader than the prohibition under the Convention against Torture, since it extends to cruel, inhuman or degrading treatment or punishment as well. This obligation arises out of the combination of articles 7 and 2(1), which requires States to guarantee the Convenant rights ‘to all persons who may be within their territory and to all persons subject to their jurisdiction’,30 including asylum seekers and refugees. This also entails a duty ‘not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.31 International humanitarian law provides additional support. The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War defines ‘protected persons’ as ‘those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’.32 Article 45 provides in part:

Protected persons shall not be transferred to a Power which is not a party to the Convention …

In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs. (Emphasis added.)

Non-refoulement is also embodied in regional instruments. Article II(3) of the 1969 OAU Convention Governing the specific Aspects of Refugee Problems in Africa (OAU69)33 declares that:

[n]o person shall be subjected … to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.

The central features of non-refoulement are present in article 22(8) of the 1969 American Convention on Human Rights (ACHR69):

In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.34

In the Americas, regional protection of asylees goes back to the 1889 Montevideo Treaty on International Penal Law;35 article 16 proclaims that, ‘Political refugees shall be afforded an inviolable asylum’, and article 20 excludes extradition for political crimes.36 Each of these regional instruments has been widely accepted, with no reservations recorded or attempted in respect of the basic principle of non-return.

The principle of non-refoulement is also reflected in article 3 of the 1950 European Convention on Human Rights, which prohibits removal to torture, or cruel, inhuman or degrading treatment or punishment.37 The European Court of Human Rights has held that the extradition38 or expulsion39 of a person will breach article 3 where there are substantial grounds for believing that he or she faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving State. This illustrates the general issue of State responsibility with regard to the removal of persons from State territory, and is founded on the unqualified terms of article 3, read in conjunction with article 1, requiring contracting States to protect everyone within their jurisdiction from the real risk of such treatment, in the light of its irremediable nature.40 By contrast to (p. 211) the exceptions to non-refoulement in articles 32 and 33 of the 1951 Convention, article 3 is absolute, preventing removal no matter how ‘undesirable or dangerous’ an individual’s conduct.41

In the European Union, the 2004 Qualification Directive prohibits Member States from returning individuals to the death penalty or execution; to torture or inhuman or degrading treatment or punishment in the applicant’s country of origin; or to a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.42 While these provisions are based on Member States’ existing non-refoulement obligations under international and EU law, the Qualification Directive is the first binding supranational agreement by States concerning the determination of eligibility and status of individuals with ‘complementary protection’ needs—that is, international protection needs falling outside the scope of the 1951 Convention.

2.3  Declarations and Resolutions

Besides the range of obligations formally undertaken by States, the standing of the principle of non-refoulement in international law must also be assessed by reference also to non-binding declarations and resolutions. States are able to express their views and policies in a variety of international fora; if their practice in turn conforms to such statements, this may give further support to the concretization of a norm of customary international law.

The most recent declaration by States on the importance of the principle was adopted on 13 December 2001, when States party to the Convention and/or Protocol affirmed those instruments’ enduring importance, called for universal adherence to them, and noted ‘the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law’.43

Earlier declarations reveal States’ understanding of the meaning and scope of non-refoulement. Thus, the 1967 Declaration on Territorial Asylum, adopted unanimously by the General Assembly, recommends that States be guided by the principle that no one entitled to seek asylum ‘shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he (p. 212) seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution’.44

Very similar language was used in article III(3) of the Principles concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Committee in Bangkok in 1966.45 A resolution adopted by the Committee of Ministers of the Council of Europe the following year acknowledged that States should ‘ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution … ’46 The Committee of Ministers reiterated this principle in 1984, ‘regardless of whether [the] person has been recognized as a refugee … ’47 and again in 1998.48 The 1984 Cartagena Declaration is yet more categoric, not only endorsing a broader, regionally specific refugee definition, but also reiterating the importance of non-refoulement and non-rejection at the frontier as a ‘corner-stone’ of international protection, having the status of jus cogens.49 The 2004 Mexico Declaration, adopted on the 20th anniversary of the Cartagena Declaration, echoes this position, recognizing ‘the commitment of Latin American countries to keep their borders open in order to guarantee the protection and security of those who have a right to enjoy international protection’.50 A Declaration on Refugees was adopted in January 2004 by the Eminent Persons Group, comprising leading figures from five South Asian States, and called for States in that region to ratify the Convention and Protocol and develop national asylum legislation in accordance with a model law.51

In June 2001, the Asian-African Legal Consultative Organization agreed on principles on the treatment of refugees,52 which revised and consolidated the (p. 213) Bangkok Principles. For many Asian States, these are the only agreed statements of refugee protection principles which are applied throughout the region.

In September 2001, the Council of the International Institute of Humanitarian Law adopted a Declaration stating that: ‘The Principle of Non-Refoulement of Refugees incorporated in Article 33 of the Convention relating to the Status of Refugees of 28 July 1951 is an integral part of Customary International Law.’53 In an explanatory note, the Council described as a ‘telling point’ the fact that in the last half-century, no State had returned a refugee ‘using the argument that refoulement is permissible under contemporary international law. Whenever refoulement occurred, it did so on the grounds that the person concerned was not a refugee (as the term is properly defined) or that a legitimate exception applied.’54

In 2002, the International Law Association noted ‘the fundamental obligation of States not to return (refouler) a refugee in any manner whatsoever to a country in which his or her life or freedom may be threatened’, and declared:

  1. 1.  Everyone seeking international protection as a refugee outside his or her country of origin and in accordance with the relevant international instruments should have access to a fair and effective procedure for the determination of his or her claim …

  2. 5.  No one who seeks asylum at the border or in the territory of a State shall be rejected at the frontier, or expelled or returned in any manner whatsoever to any country in which he or she may be tortured or subjected to inhuman, cruel or degrading treatment or punishment, or in which his or her life or freedom may be endangered.55

The United Nations has also recognized the relationship between non-refoulement and the protection of human rights.56 For example, the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, endorsed by the General Assembly in 1989, provide that ‘no one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he or she may become a victim of extra-legal, arbitrary or summary execution in that country’.57 In 1992, the General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance, article 8(1) of which declares that: ‘No State shall expel, return (refouler) or extradite a person to another State where there are substantial grounds to believe that he would be in danger of enforced disappearance’.58 The two Protocols to the Convention against Transnational Organized Crime operate subject to ‘the rights, (p. 214) obligations and responsibilities of States and individuals under international law … in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein’,59 echoed in the 2005 Council of Europe Convention on Action against trafficking in Human Beings.60 These provisions contribute to and confirm the meaning of persecution, and even if they do not expand the substantive scope of protection, nevertheless consolidate the legal standing of the principle of non-refoulement in general international law.

More generally, the General Assembly has repeatedly affirmed the importance of full respect for the principle of non-refoulement and urged States to observe it.61 Similarly, both the Commission on Human Rights62 and the Sub-Commission on Human Rights63 have called upon States to ensure the effective protection of refugees by respecting the principle of non-refoulement.

There has been increased attention to the principle of non-refoulement by other branches of the UN as well. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on the Human Rights of Migrants,and the Special Rapporteur on the Question of Torture have all expressed concern about, and reported on, cases of alleged refoulement of asylum seekers by various States.64 In (p. 215) 2004, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions sent communications to Malaysia, Sweden, the United States, and Zimbabwe regarding cases of expulsion, refoulement, or returns of people to countries or places where their lives were in danger.65

2.4  The UNHCR Executive Committee Conclusions on International Protection

The UNHCR Executive Committee66 has consistently endorsed the fundamental character of the principle of non-refoulement in its annual general and specific conclusions. In 1977, for example, the Executive Committee noted that the principle was ‘generally accepted by States’, expressed concern at its disregard in certain cases, and reaffirmed:

the fundamental importance of the observance of the principle of non-refoulement—both 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.67

Later Conclusions have stressed that the principle of non-rejection at the frontier requires ‘access to fair and effective procedures for determining status and protection needs’.68 Thus, although non-refoulement is not synonymous with a right to admission, the principle of non-rejection at the frontier implies at least temporary admission to determine an individual’s status.69 Only in this way can a State ensure that it does not send back an individual to persecution or torture. Hathaway describes this as a ‘de facto duty to admit the refugee’, although he is careful to emphasize its narrow application to cases where there is a real risk that (p. 216) rejection will expose an individual to persecution for a Convention reason.70 In particular, non-refoulement is not commensurate with a right to asylum.71

Non-refoulement as a paramount consideration has also been reiterated in specific contexts. For example, ‘in the case of large-scale influx, persons seeking asylum should always receive at least temporary refuge’;72 similarly, ‘in situations of large-scale influx, asylum seekers should be admitted to the State in which they first seek refuge … In all cases the fundamental principle of non-refoulement—including non-rejection at the frontier—must be scrupulously observed’.73

In its 1982 General Conclusion on protection, the Executive Committee expressed the view that the principle ‘was progressively acquiring the character of a peremptory rule of international law’.74 Reported instances of breach of the principle have been consistently deplored,75 and in 1989, after the matter was raised expressly by UNHCR in its annual Note on International Protection,76 the Executive Committee expressed its deep concern ‘that refugee protection is seriously jeopardized in some States by expulsion and refoulement of refugees or by measures which do not recognize the special situation of refugees’.77 The same year, when dealing with the problem of irregular movements, the Executive Committee affirmed that ‘refugees and asylum seekers [who] move in an irregular manner from a country where they have already found protection … may be returned to that country if … they are protected there against refoulement’; but if, in exceptional circumstances, the physical safety or freedom of such refugee or asylum seeker may be at risk, or he or she has good reason to fear persecution there, then their cases should be considered favourably.78

Similar language occurs in later Conclusions. In 1991, the Executive Committee emphasized ‘the primary importance of non-refoulement and asylum as cardinal principles of refugee protection’, while indirectly stressing the protective purpose of the principle by reference to the need for refugees to be able to ‘return in safety and dignity to their homes without harassment, arbitrary detention or physical threats during or after return’.79

(p. 217) In 1992, the Executive Committee maintained this traditional language, but emphasized also that UNHCR’s involvement with internally displaced persons and related approaches, ‘should not undermine the institution of asylum, as well as other basic protection principles, notably the principle of non-refoulement’.80 More recently, the Executive Committee reiterated that the principle applies to asylum seekers ‘whether or not they have been formally granted refugee status’, and extends to ‘persons in respect of whom there are substantial grounds for believing that they would be in danger of being subjected to torture, as set forth in the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’.81 In 2005, the Executive Committee adopted a Conclusion on complementary forms of protection, affirming that ‘relevant international treaty obligations, where applicable, prohibiting refoulement represent important protection tools to address the protection needs of persons who are outside their country of origin and who may be of concern to UNHCR but who may not fulfil the refugee definition under the 1951 Convention and/or its 1967 Protocol; and call[ing] upon States to respect the fundamental principle of non-refoulement’.82 The Conclusion itself deals with the protection of individuals whose removal is prohibited by the principle of non-refoulement under human rights law.

The Conclusions adopted by the UNHCR Executive Committee do not have force of law and do not, of themselves, create binding obligations. They may contribute, however, to the formulation of opinio juris—the sense of legal obligation with which States approach the problems of refugees. Some Conclusions seek to lay down standards of treatment, or to resolve differences of interpretation between States and UNHCR, while others are more hortatory, repeating and reaffirming basic principles without seeking to expand their field of application.83 They must therefore be reviewed in the context of States’ expressed opinions, and in light of what they do in practice.

(p. 218) 2.5  State Views and State Practice

2.5.1  State views

The views and comments of States in the Executive Committee fall into two broad categories: first, general endorsements of the principle of non-refoulement, which usually say little about content or scope; and secondly, more focused comments, by which States seek to show where, in their opinion or practice, the limits of obligation lie.

One of the clearest general statements in support of the principle of non-refoulement was made by Ambassador Jonathan Moore, United States Co-ordinator for Refugee Affairs, at the Executive Committee in 1987.

Forced repatriation had occurred in almost every region of the world during the past year, resulting in death, serious injury and imprisonment. Considering that the most important element of a refugee’s protection was the obligation of non-refoulement, it was tragic that refugees had been forced to return to their countries against their will and without assurances that they would not face persecution on their return, especially when such violations were committed by, or with the concurrence of, States parties to international instruments prohibiting such acts. The threat to a country posed by influxes of economic migrants should not serve as an excuse for refusing asylum.84

Other comments in the years since 1987 have ranged from support for the idea that non-refoulement is a long-standing rule of customary international law85 and even a rule of jus cogens,86 to regret at reported instances of non-observance of fundamental obligations,87 to its fundamental importance in situations of mass influx,88 to concern at current challenges to the related ‘principle of first asylum’,89 to the need, before implementing any form of compulsory return, to define objective criteria ‘to determine whether security concerns had been fully met’, and further, with respect to the cessation clauses, ‘to ensure that refugees were not forced to return to unsafe countries’.90

More focused comments have addressed issues of specific application. In 1987, the Turkish representative raised a particularly serious question:

The principle of non-refoulement … had to be scrupulously observed. Nevertheless, … countries of first asylum or transit …, faced with the Difficulties of repatriation and the (p. 219) progressively more restrictive practices of host countries, might find themselves unable to continue bearing the burden and, for want of any other solution, come to regard refoulement as the only possible way out. If that should occur, they would not be the only ones at fault, since the responsibility for ensuring the conditions necessary for observance of the non-refoulement principle rested with the international community as a whole.91

This precise point emerged again in 1989, when the Turkish representative remarked that the refugee problem, ‘was such that it was no longer possible to disassociate international protection from international co-operation and assistance’.92 Commenting on developments in Iraq in April 1991 and the arrival on the border of some half-million Kurdish asylum seekers, the Turkish representative noted that while his country had tried to meet the needs of those concerned, ‘[t]he scale of the operation had … been prohibitive, and Turkey had been compelled to call for urgent international assistance … As a result of the subsequent international cooperation, virtually all those displaced persons had now been resettled in the security zone established in the north of Iraq.’93 If the reference to ‘security’ can be taken as controlling, then the rather unique situation of the Kurdish people in search of refuge might still be interpreted consistently with a variant of non-refoulement that permits only limited exceptions, conditioning return or rejection in situations of mass influx on the availability of alternative forms of safety. This is not particularly persuasive, but the ‘solution’ imposed on northern Iraq remains unique.94 In cases not involving ‘mass migrations’, no such exception could apply,95 although the ‘internal flight alternative’ is a variant of the safe haven concept which may be lawful in limited circumstances.96

(p. 220) During the 1980s, a number of States stressed that non-refoulement did not apply to non-Convention refugees, although many accepted that protection needs were involved. In 1988, the Swiss representative was apprehensive that the ‘dilution’ of the refugee concept ‘would … weaken the basic principle of non-refoulement’. While others might be allowed to remain for humanitarian reasons, this would not be based on a Convention obligation, so much as on ‘considerations of humanitarian law or international solidarity, in other words, on a free decision by the State concerned’.97 By the 1990s, however, there was increasing recognition of States’ non-refoulement obligations beyond article 33 of the 1951 Convention. Several States called attention to the fact that they were parties to the 1984 United Nations Convention against Torture, and consequently also bound by that treaty’s provision prohibiting the return of individuals to situations of torture, irrespective of the character or legal status of the individual concerned. Two delegations commented that ‘any responsibility not to return non-refugees was far less clear-cut in situations that do not involve torture’.98 In 1996, the United States described States’ responsibility to protect persons from refoulement to persecution and torture as both a legal and moral duty.99 The Swedish government expressed its eagerness ‘to provide legal protection to the victims of armed conflict, torture and other inhumane treatment’,100 noting that a bill proposed in 1996 also addressed questions relating to victims of gender-related persecution, persecution due to sexual orientation, and environmental disasters. Similarly, the Egyptian delegation stated that ‘[f]lexibility should be shown in dealing with groups which did not come under the definition of refugees contained in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’.101

In 1998, Belgium stipulated for the first time that all asylum seekers’ claims for protection be assessed according to article 3 ECHR50, in addition to article 1A(2) of the 1951 Convention.102 In the same year, France gave legislative force to two new forms of asylum: ‘constitutional asylum’, for persecution based on ‘actions intended to promote freedom, even if such persecution had not been State-instigated’, and ‘territorial asylum’, a previously ad hoc French procedure, to be ‘grantedto an alien who risked being subjected to inhuman or degrading treatment (p. 221) or whose personal safety would be in serious danger if he were to be refused entry to France’.103 Meanwhile, the United Kingdom reiterated that States ‘should offer protection in line with international human rights standards and obligations’.104 Since 2000, the US, Canada and the Member States of the European Union have all adopted domestic legislation extending protection to certain persons encompassed by the prohibition on refoulement in international instruments like the Convention against Torture and the European Convention.105

During this period, Australia was the only State to express near-contempt for extended non-refoulement obligations under international law.106 It described what it appeared to regard as audacious attempts by asylum seekers ‘to prolong their stay in Australia indefinitely, in particular by submitting appeals to international bodies such as the Human Rights Committee on the basis of international instruments other than the [Refugee] Convention. The Government of Australia would not allow the increased complexity of procedures to undermine its system for determining refugee status.’107 The Australian delegation conveniently ignored the fact that, due to Australia’s Ratification of the Convention against Torture, which provides for individual complaints under article 22, and the Optional Protocol to the International Convenant on Civil and Political Rights, it recognized that asylum seekers have a right to lodge such appeals. Furthermore, since complementary protection does not exist in Australian domestic law, complaints to international committees may in fact provide the first opportunity for asylum seekers to have evidence of human rights abuses not amounting to persecution taken into consideration.

On other occasions, States have described practices which, in their view, did not amount to refoulement, such as normal immigration controls, visa policies, and carrier sanctions. In 1988, the UK representative declared his country’s intention to abide fully by the principle, but stated that this did not prevent the (p. 222) return of ‘failed asylum seekers’, or removals to ‘safe third countries’.108 The representative for Argentina, on the other hand, was careful to stress that practices such as ‘the refusal of admission at a border for purely administrative reasons vitiated the principle of non-refoulement’.109 UNHCR, however, considers denial of access to asylum procedures at airports, refoulement from ‘safe third countries’, and the extradition of foreigners without examining any asylum claims as examples of violations of the principle of non-refoulement.110 The US Committee for Refugees and Immigrants has observed the constructive refoulement of refugees from Malaysia, who have ‘volunteered’ for deportation owing to the horrendous conditions in detention camps.111 NGOs have criticized Denmark’s accelerated procedures for denying asylum seekers a fair hearing, and accordingly subjecting many to refoulement. They argue that the system is being misused—having been designed for manifestly unfounded claims, by mid-2002 it was being used in 60 per cent of cases.112

Over the past decade in particular, States have sought to justify restrictive entry policies on account of the mixed character of migratory flows. Many States have invoked ‘migration management’ mechanisms as tools to prevent abuses of the asylum system and thereby preserve the integrity of international protection.113 The Polish delegate stated in the Executive Committee that ‘the increase in requests from individuals who clearly had no valid claim to refugee status’ justified restrictive admission policies.114 The Italian government noted that its geographical location exposed it to migratory flows which ‘could entail the use of political asylum to achieve economic and migration-related aims’.115 The delegation from Botswana argued that its policy not to accept all asylum seekers wishing to settle there was aimed at controlling immigration and did not ‘question respect for the right of asylum’.116 Similarly, the Venezuelan delegate affirmed her country’s awareness of its international obligations and stated that it had always fulfilled them, but noted that ‘a balance must be struck between compliance with international commitments and respect for national interests’.117 She went on to say that while her government ‘was of the opinion that persons fleeing violence had to be given protection, that protection did not necessarily have to be limited to asylum, but could also take the form of relocation in the country of origin in areas where those persons would not be in danger’.118 By contrast, Norway recognized that ‘[p]reventing (p. 223) asylum-seekers from finding safety, or from obtaining access to procedures, negates their fundamental rights, and may amount to refoulement in breach of international law’.119 It argued that although it was important to combat irregular migration, it was also important not to put pressure on asylum mechanisms, and in this respect a more generous interpretation of international instruments might assist.120

UNHCR repeatedly stressed the importance of ensuring that asylum seekers are able to voice their protection claims, noting that ‘refugees do not lose their protection needs and entitlements just because they are part of a mixed flow’.121 Similarly, it explained that refugees may resort to people smugglers to leave their countries of origin,122 sometimes out of desperation and sometimes because there is no means of obtaining a visa to enter legally.

In its 2001 Note on International Protection, UNHCR framed the challenge as finding a way of controlling illegal migration ‘in a manner which does not have the effect of enhancing opportunities for smugglers and traffickers, but which ensures that the needs of refugees and asylum-seekers, including access to protection, are properly met’.123 UNHCR expressed concern that increased processes and regulations concerning entry were ‘ever less compatible with the prevailing protection framework’.124

Security issues have also emerged as an excuse for denying protection. In 1997, the Turkish representative observed that: ‘The right to seek asylum was a sacred right, but, like any category of human rights, it should also be protected from abuses that could impair the general welfare of host societies or destroy other rights and freedoms’.125 Following the 11 September 2001 terrorist attacks, some States began casting ‘terrorists’ as likely abusers of the asylum system.126 Just a month after the attacks, the High Commissioner expressed concern that certain States had already increased practices to counter irregular migration, ‘resulting in non-admission, denial of access to asylum procedures and even cases of refoulement’.127 The Indian delegation said that while the attacks on the United States should not dilute international protection, ‘it was important to guard against abuse by States that, unwittingly or otherwise, sheltered terrorists’.128

(p. 224) Where States claim not to be bound by any obligation, their arguments either dispute the status of the individuals in question, or invoke exceptions to the principle of non-refoulement, particularly on the basis of threats to national security. Such considerations were dominant in the March/April 1995 decision by Tanzania to close its border to Rwandan refugees;129 in the refoulement of Rwandans carried out by Zaire in the following September; and in Turkey’s response to Kurdish refugees in the aftermath of the first Gulf War.130 It is in this vein that accusations of refoulement have been strongly refuted in the Executive Committee. In response to an Eritrean allegation that its nationals had been deported by Ethiopia, the Ethiopian delegation stated that it ‘in fact abided strictly by the principles of international law, despite the challenge it was facing’.131 While admitting that it had closed borders, the Congolese representative sought to blame UNHCR for failings in its own protection duties, rather than attempting to justify refoulement.132

States may deny the ‘refugee’ character of a flow in an effort to justify non-admittance or removal, even though an objective assessment based on international standards may disclose a violation of the principle of non-refoulement.133 For example, the Tanzanian representative said that his State ‘had always admitted genuine refugees and asylum-seekers, but it was not prepared to make concessions to illegal immigrants, wherever they were from’, citing its right as a sovereign State to determine whom it admitted.134 Similarly, the observer for Myanmar, while confirming Myanmar’s respect for the principle of non-refoulement,135 argued that ‘[e]very State was free to legislate as it wished on the question of economic immigration and … international activities to help refugees and displaced persons should respect the sovereignty of States’.136 Furthermore, even though he recognized the need to support ‘illegal and irregular migrants on humanitarian grounds and international protection for the poor and vulnerable’, he regarded stricter immigration policies as justified because of the Difficulties of distinguishing between ‘genuine refugees’ and abusers of the asylum system.137 Bhutan has steadfastly refused to recognize the refugee character of Bhutanese refugees in Nepal, instead describing them as illegal economic migrants who forfeited their citizenship when they voluntarily left Bhutan.138 This has serious implications for their (p. 225) repatriation. Nepal noted the improbability that ‘almost one sixth of the population of a country should voluntarily choose within a short period of time to renounce the safety and security of home and society in exchange for an uncertain future in a refugee camp in a foreign country’.139

Perhaps the most significant questioning of the principle of non-refoulement remains that which occurred in the Sub-Committee of the Whole on International Protection in 1989, when the US representative attempted to establish some of the groundwork for its domestic litigation strategy in support of Haitian interdiction. Despite earlier US declarations of support for the principle of ‘first asylum’,140 the US delegate sought to distinguish between legally binding obligations and non-binding ‘generally-accepted moral and political principles of refugee protection’.141 The United States, he said, did not believe that countries had a legal obligation ‘to admit persons seeking asylum’:

As a matter of practice, the United States authorities did not return persons who were likely to be persecuted in their countries of origin … That was the practice, and … the policy of the United States, and not a principle of international law with which it conformed … It did not consider that the non-refoulement obligation under article 33 of the Convention included an obligation to admit an asylum seeker. The obligation … pertained only to persons already in the country and not to those who arrived at the frontier or who were travelling with the intention of entering the country but had not yet arrived at their destination. Furthermore, there was nothing to suggest that an obligation to admit asylum seekers had ripened into a rule of customary international law.142

The intervention, which attracted no support or comment from other States, was clearly drafted with the Haitian interdiction programme in mind; equally clearly, it failed to notice that non-refoulement is not so much about admission to a State, as about not returning refugees to where their lives or freedom may be endangered. It was also inconsistent with US support for the principle of first asylum, declared earlier in the same session, and even repeated in the same intervention.143 (p. 226) Ultimately, however, this strategic departure from the accepted meaning of non-refoulement came too late to alter the obligations of the United States under international law.144 Similarly, Australia’s response to the Tampa crisis in 2001 attracted no support from other States, and consequently had no effect on the establised scope of the principle of non-refoulement under international law.145

In 1996, the International Council of Voluntary Agencies objected strongly to a statement apparently made by the United States that non-refoulement was only a ‘humanitarian principle’.146 The Council observed that it was ‘regrettable that the importance of the legal obligation which prohibited the refoulement of a refugee was being minimized’.147 Perhaps as a result of the condemnation, in 1997 the United States affirmed its commitment to the principle of non-refoulement: ‘The first principle and priority for both UNHCR and the international community should be to make every effort to work together with countries of asylum to ensure that respect for the principle of non-refoulement, which the United States was prepared to support, both in public and in private, in the strongest possible terms.’148

In the past decade, no State in the Executive Committee has sought to justify refoulement, and States have repeatedly reiterated their commitment to and respect for the principle of non-refoulement.149 By 1997, Denmark regarded the principle as applying to States that were not yet party to the Convention or Protocol.150 (p. 227) Belgium echoed this view in 2001,151 and Thailand—a non-signatory State—expressed its understanding that ‘in line with the principle of non-refoulement, asylum countries were under an obligation to allow all refugees and displaced persons to enter their territory notwithstanding their limited resources and underdeveloped infrastructure’.152

Although States continued to express strong rhetorical support for the principle of non-refoulement, UNHCR observed their increasing reluctance to openly condemn other governments for violations of the principle. From late March 1999, the Former Yugoslavian Republic of Macedonia periodically closed its borders to large numbers of refugees seeking to leave Kosovo,153 in some cases using violence to prevent border crossings.154 These acts of refoulement were protested by the United Kingdom and the Netherlands as breaches of international law, and initially also by UNHCR, although UNHCR framed its opposition in terms of a failure to admit asylum seekers to the territory rather than expressly invoking the principle of non-refoulement.155 At the 1999 Executive Committee meetings, Canada objected to border closures generally, but refrained from mentioning Macedonia.156

During the 1990s, some of the most serious instances of large-scale refoulement occurred in the Great Lakes of Africa, yet very few States publicly protested against them at the annual Executive Committee meetings. One of the strongest protests came from the Irish delegation in 1997, which was ‘deeply concerned’ by the violation of the principle of non-refoulement by the Democratic Republic of Congo. The delegation acknowledged the ‘pain and complexity’ of the Great Lakes context, but argued that ‘the international community could not fail to speak out when Governments violated their obligations under international law if it was not (p. 228) to erode the fundamental human rights and humanitarian principles which were the bedrock of policy’.157

The Director of UNHCR’s Department of International Protection acknowledged that the lack of formal protests to refoulement in the Great Lakes may have stemmed from the politicized context of that particular refugee situation, but also ‘perhaps because the domestic refugee policies of many States fell short of international standards’.158 Although, as a matter of customary international law, States’ failure to protest against breaches of international law may indicate acquiescence,159 the institutional role of UNHCR complicates this traditional model. Given the political sensitivity of many refugee flows, States may be more inclined to give tacit support to UNHCR’s condemnation of breaches of non-refoulement, and certainly no State has protested against its actions in this regard. Given UNHCR’s responsibility to provide protection and to oversee the application of refugee law, it can be assumed to act on behalf of the international community. Where States fail to protest openly at breaches of the principle of non-refoulement, they should not necessarily be viewed as acquiescing in such breach, particularly where UNHCR does so protest.

This view is supported by the positions in fact adopted by States. For example, the Norwegian delegation’s deep concern at ‘UNHCR reports of violations of the principle of protection in various regions’160 reflects a general reticence by States formally to to label other governments’ acts as refoulement. Similarly, Sweden expressed great concern at ‘reports of continuing deportations of Afghan refugees [by Iran] to areas where their safety could not be guaranteed’,161 and Ireland described the systematic expulsion of whole populations from East Timor and Kosovo as a violation of human rights and humanitarian law.162 In 2001, the Swiss representative at the Executive Committee meetings stated that Afghanistan’s international borders should not be closed.163

Even though States have not always protested specific cases of refoulement, they have consistently maintained a position of respect for and commitment to the principle of non-refoulement. No State claims that refoulement is permissible under international law, but instead will go to great lengths to characterize instances of return as standard immigration control, as exclusion, or as not involving refugees. For example, there are few recorded protests to the instances of refoulement by Croatia in 1992, and most of those on record were by non-governmental organizations (p. 229) rather than States.164 UNHCR was hesitant to criticize Croatia, perhaps because it hosted large numbers of refugees during the crisis, and also because UNHCR sought to focus on practical solutions rather than principle, referring to the ‘refusal of admission’, rather than to refoulement.165

2.5.2  State practice: some aspects166

Despite States’ continued support for the principle of non-refoulement as a cornerstone of the international protection regime, State practice does not always conform with international law. There have been frequent violations of the principle,167 well documented by human rights organizations such as the US Committee for Refugees and Immigrants, Amnesty International and Human Rights Watch.

UNHCR has repeatedly stressed that failures in protection stem not from the international protection regime itself, but rather from ‘the persistent failure of States to respect treaty obligations’.168 The problem is one of implementation, not standards.169 In this regard, the US delegate to the Executive Committee stated that when protection principles are not upheld by governments, ‘the response should not be to lower them, but jointly to seek ways of bringing practice into line with them’.170

In 1997, the International Council of Voluntary Agencies noted breaches of the non-refoulement principle by Congo (in respect of Rwandan asylum seekers); Thailand and Bangladesh (in respect of asylum seekers from Myanmar); and Panama (in respect of Colombian asylum seekers).171 In the same year, the High Commissioner emphasized that the expulsion of Rwandan refugees from the Goma area and violations of other human rights and humanitarian principles ‘did not imply a need to revise basic principles’, but that the foundational principle of non-refoulement and the right of refugees to asylum ‘must be implemented in constructive, realistic and creative ways that took account of the legitimate concerns of States’.172

In the former Yugoslavia, refugees were often summarily removed,173 but one of the most serious refugee crises of the 1990s occurred in the Great Lakes region of Africa. The Rwandan genocide in 1994 led to a mass influx of refugees into (p. 230) Tanzania and Zaire, with significant security problems due to former soldiers and those guilty of genocide infiltrating refugee camps.174 In its 1998 Note on International Protection, UNHCR reflected on a number of serious instances of large-scale refoulement in the Great Lakes region which took place, despite protests by States and UNHCR. In one instance, 4,400 refugees were expelled over a three-month period; in another, 2,000 were removed.175 significantly, however, the Tanzanian authorities maintained their support for the importance of the principle of non-refoulement, arguing that those expelled ‘were not refugees’, but illegal aliens or former refugees whose status has ceased.176 At other times, they sought to excuse removals on the basis that local officials misunderstood national policy.177 This persistent ‘re-characterization’ supports the argument that violating States are not seeking to develop a counter-norm of customary international law to challenge the fundamental principle of non-refoulement.178

Since early 2003, conflict and human rights abuses in western Sudan have caused mass displacement.179 In April 2005, two-and-a-half million people were affected by the conflict, and close to two million of them were internally displaced.180

UNHCR commended Chad’s full respect for the principle of non-refoulement during a mass influx in 2004, but also noted serious cases of rejection at the frontier and forced removals by some other States. For example, in early 2004 UNHCR requested States in the Americas to stop forcibly returning people who had fled an outbreak of violence in their country of origin and provide them with temporary protection.181 In 2005, UNHCR expressed grave concerns about the fate of asylum seekers from Africa and the Middle East arriving in southern Europe, who faced deportation to unsafe destinations and a real risk of persecution.182 In particular, it was deeply concerned about the fate of asylum seekers arriving on the Italian island of Lampedusa, given reports of mass repatriations to Libya in October 2004 without individual claims for protection being considered or access to UNHCR being provided. The Italian government defended its actions, arguing that it was confronted with a ‘humanitarian crisis’. It denied that it had engaged in ‘expulsion’, instead describing the returns as ‘a refusal of entry at the border, which is in accordance with international law’.183 Furthermore, it (p. 231) stated that such removals were necessary to cope with threats of terrorism, and particular vigilance was required with respect to ‘clandestine immigrants coming from the Horn of Africa, where al-Qaeda is well established, and those from the sub-Saharan zone where Islamic extremism is undergoing rapid growth’.184 The Libyan Minister of the Interior confirmed that over 1,000 Egyptians had been expelled from Italy via Libya to Egypt, funded by the Italian government.185 The International Council of Voluntary Agencies further condemned Italy’s deportation of asylum seekers to the Libyan Arab Jamahiriya. It expressed grave concern at European plans to ‘effectively cordon off the Mediterranean to asylum seekers and migrants and to keep them in processing centres in North Africa’,186 arguing that this would undermine the international protection regime and violate principles of responsibility-sharing.

Border closures,187 deporting refugees for breaching conditions,188 summary removals, and an absence of effective procedures to screen asylum seekers can also result in refoulement. In July 2005, Cambodia forcibly deported 100 Montagnard refugees to Vietnam. The United States raised objections with the governments of Cambodia and Vietnam, expressing disappointment ‘that these individuals were repatriated before an internationally staffed monitoring program was in place in the Central Highlands of Vietnam and before other solutions could be considered for these individuals’.189 In 2004, South Africa deported around 50,000 undocumented Zimbabweans without proper asylum screening, with NGOs accusing the government of setting unfairly high thresholds for asylum seekers coming from Zimbabwe. Tanzania similarly deported 90 Burundians in October 2004 without asylum screening.190 In 2003, Malaysia forcibly returned more than 600 Indonesian Acehnese, including many who had been recognized as refugees by UNHCR.191 Since 1986, China has had a treaty arrangement with North Korea by which it agrees to return ‘defectors’. Although for a number of years China informally tolerated the presence of North Koreans, in 1999 it began returning large numbers of them, claiming that they were not refugees but ‘food migrants’.192 (p. 232) By 2004, China had removed at least 5,000 North Koreans, and was reported as permitting North Korean security forces periodically to enter China to abduct refugees.193 In a US Senate Sub-Committee hearing, the US Committee for Refugees and Immigrants argued that ‘China is attempting to simply define the North Koreans out of the [1951] Convention’.194

In light of cases such as these, UNHCR has welcomed the initiative by some States to engage in joint monitoring and screening agreements in unsettled border areas as alternatives to summary deportations,195 and formal readmission agreements as an alternative to summary removals.196

UNHCR has reiterated that even in large-scale influxes of asylum seekers, there must be proper procedures for assessing status.197 This requires political commitment by the receiving State as well as international cooperation with transit countries, and countries of origin, as envisaged by the EU Hague Programme’s proposed ‘regional protection programmes’.198 UNHCR has noted that ‘[v]ery many countries, including many which have seen significant increases in the arrivals of refugees and asylum-seekers and others with large, longstanding refugee populations continue to respect the principle [of non-refoulement].199 Indeed, despite serious concerns about the economic, environmental, and, at times social impact of mass refugee influxes on the local community, many States continued an open-door asylum policy by accepting large numbers of refugees on to their territory.200 States which did not appear to respect the principle of non-refoulement, either by denying entry to or forcibly returning people arriving in large influxes, sought to excuse their behaviour by invoking their lack of resources, threats to national security, and fears of political destabilization.201 While such concerns may be bona fide, the international protection regime provides the basis for a response grounded in responsibility sharing and the rule of law, rather than refoulement.

3.  The scope of the principle of non-refoulement

3.1  Personal Scope

The principle of non-refoulement, as it appears in article 33 of the 1951 Convention, applies clearly and categorically to refugees within the meaning of article 1. It also applies to asylum seekers, at least during an initial period and in appropriate circumstances, for otherwise there would be no effective protection. Those with a (p. 233) presumptive or prima facie claim to refugee status are therefore entitled to protection, as the UNHCR Executive Committee has stressed, for example, in Conclusion No. 6 (1977), reaffirming ‘the fundamental importance of the principle of non-refoulement … irrespective of whether or not individuals have been formally recognized as refugees’.202 This has also been affirmed by the General Assembly.203

Equally irrelevant is the legal or migration status of the asylum seeker. It does not matter how the asylum seeker comes within the territory or jurisdiction of the State; what counts is what results from the actions of State agents once he or she does. If the asylum seeker is forcibly repatriated to a country in which he or she has a well-founded fear of persecution or faces a substantial risk of torture, then that is refoulement contrary to international law.

The status or personal circumstances of the asylum seeker, however, may control the options open to the receiving State. In the case of a stowaway asylum seeker, for example, the port of call State may require the ship’s master to keep him or her on board and travel on to the next port of call; or it may call upon the flag State to assume responsibility where the next port of call is unacceptable; or it may allow temporary disembarkation pending resettlement elsewhere. Thus, by itself, a categorical refusal of disembarkation can only be equated with refoulement if it actually results in the return of refugees to persecution. Similar considerations apply also to rescue-at-sea cases seeking disembarkation, and even to boats of asylum seekers arriving directly. From a practical perspective, however, a refusal to take account of their claims to be refugees would not suffice to avoid liability for breach of the principle of non-refoulement.204

3.1.1  The question of risk

The legal, and to some extent logical, relationship between article 33(1) and article 1 of the 1951 Convention/1967 Protocol is evident in the correlation established in State practice, where entitlement to the protection of non-refoulement is conditioned simply upon satisfying the well-founded fear criterion. So far as the drafters of the 1951 Convention were aware of a divergence between the words Defining refugee status and those requiring non-refoulement, they gave little thought to the consequences. Mr Rochefort, the French representative, suggested that article 1 referred to examination at the frontier of those wishing to enter a contracting State, whereas article 33 was concerned with provisions applicable at a later stage. The co-existence of these two possibilities was perfectly feasible, though he detected a distinct and somewhat uncomfortable inconsistency between article 33(1) and article 1.205 This related not to the presence of conflicting standards of proof, however, or to issues of extraterritorial application, but to (p. 234) the class and extent of those, principally criminals, who were to be excluded from refugee status and/or denied the benefit of non-refoulement.

The intimate link between articles 1 and 33 was nevertheless recognized;206 in both, the status of ‘refugee’ was to be governed by the criterion of well-founded fear, and withdrawal of status or refoulement would always be exceptional and restricted.207 The travaux préparatoires do not explain the different wording chosen for the formulations respectively of refugee status and non-refoulement; but neither do they give any indication that a different standard of proof was intended to be applied in one case, rather than in the other. In practice, the same standard is accepted at both national and international levels, reflecting the sufficiency of serious risk, rather than any more onerous standard of proof, such as the clear probability of persecution.208

At the international level, no distinction is recognized between refugee status and entitlement to non-refoulement. In only one instance were articles 1 and 33, as a coherent structure of protection, severed by a judicial ruling on literal meaning; and on that occasion, the executive branch of government took steps by regulation to bridge the gap between the refugee eligible for the discretionary grant of asylum and the refugee with a right to the benefit of non-refoulement.209 The relation of refugee status and non-refoulement was described more coherently by the UK House of Lords in 1987, in R. v. Secretary of State for the Home Department, ex p. Sivakumaran:

It is … plain, as indeed was reinforced in argument … with reference to the travaux préparatoires, that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention.210

Non-refoulement extends in principle, therefore, to every individual who has a well-founded fear of persecution, or where there are substantial grounds for believing that he or she would be in danger of torture, inhuman or degrading treatment or punishment if returned to a particular country.

3.2  Exceptions to the Principle of Non-Refoulement

The Convention refugee definition is not an absolute guarantee of protection, and non-refoulement in article 33 is not an absolute principle.211 ‘National security’ (p. 235) and ‘public order’, for example, have long been recognized as potential justifications for derogation.212 Article 33(2) expressly provides that the benefit of non-refoulement may not be claimed by a refugee, ‘whom there are reasonable grounds for regarding as a danger to the security of the country … or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country’.213 The exceptions to non-refoulement are thus framed in terms of the individual, and whether he or she may be considered a security risk is necessarily left very much to the judgement of the State authorities.214 This, at least, was the intention of the British representative at the 1951 Conference, who proposed the inclusion of article 33(2), and such an approach to security cases is supported both by article 32(2) of the Convention and by immigration law and practice generally.215

The inherent nature of national security, considered within a community of ‘sovereign’ States, means that the concept remains undefined in international law, although its area of operation can be inferred, to some extent, from the right of every State freely to choose its political, economic, social, and cultural system, to its prima facie exclusive competence in the ‘reserved domain of domestic jurisdiction’, (p. 236) and to its right to use force in self-defence. Grahl-Madsen has suggested the following approach to ‘security’:

If a person is engaged in activities aiming at facilitating the conquest of the country where he is staying or a part of the country, by another State, he is threatening the security of the former country. The same applies if he works for the overthrow of the Government of his country of residence by force or other illegal means (e.g., falsification of election results, coercion of voters, etc), or if he engages in activities which are directed against a foreign Government, which as a result threaten the Government of the country of residence with repercussions of a serious nature. Espionage, sabotage of military installations and terrorist activities are among acts which customarily are labelled as threats to national security. Generally speaking, the notion of ‘national security’ or ‘the security of the country’ is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence or the external peace of the country concerned.216

In general, neither ‘national security’ nor ‘danger to national security’ are defined in legislation dealing with refugees and asylum, although there are some recent exceptions, for example where legislation links ‘security’ to terrorism and locates both issues in the procedures for determining refugee status and granting asylum.217 Also, in some States, legislation specifically on national security mechanisms and agencies may indicate typical issues of concern to State authorities charged with protecting security; this in turn may give an indication of the sorts of activities which States have in mind, and allow a sense of ‘danger to security’ to be inferred.218

Article 33(2) expressly refers to a danger to the security or community of the host State. Lauterpacht and Bethlehem correctly argue that it would be inappropriate for a State to remove an individual pursuant to that provision on the grounds that he or she constituted a threat to another State or the international community generally.219 Hathaway invokes to the contrary what he terms the modern approach to national security, which permits refoulement ‘where a refugee’s presence or actions give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host State’s most basic (p. 237) interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions’.220 In Suresh, the Supreme Court of Canada found that a risk to national security ‘may be grounded in distant events that indirectly have a real possibility of harming Canadian security’,221 and, clearly influenced by the attacks of 11 September 2001 on the United States, noted that ‘the security of one country is often dependent on the security of other nations’.222 This would not necessarily require targets to be geographically located in the host State, but could extend to terrorist acts abroad which have an impact on that State’s interests.223

Lauterpacht and Bethlehem note that States’ margin of appreciation in security cases is limited by two requirements. First, the State must demonstrate ‘reasonable grounds’ for believing that the particular refugee is a danger to that country’s security by adducing evidence of a future risk.224 Secondly, given the serious individual consequences of refoulement, the threshold for establishing an exception to non-refoulement ought to be very high. Accordingly, only a very serious danger to national security should justify refoulement.225 They draw support for their conclusion from article 1F, noting that ‘since the threshold of prospective danger in Article 33(2) is higher than that in Article 1F, it would hardly be consistent with the scheme of the Convention more generally to read the term “danger” in Article 33(2) as referring to anything less than very serious danger.’226

It is unclear to what extent, if at all, one convicted of a particularly serious crime must also be shown to constitute a danger to the community. The jurisprudence is relatively sparse and the notion of a ‘particularly serious crime’ is not a term of art,227 but principles of natural justice and due process of law require something more than mere mechanical application of the exception.

(p. 238) Lauterpacht and Bethlehem appear to adopt the approach of the Australian courts,228 which regard the critical factor as the danger the individual poses, rather than a painstaking Classification of the crime.229 In A v. Minister for Immigration and Multicultural Affairs, Burchett and Lee J. J. expressed the view that the ‘principal statement of exclusion’ in article 33(2) is that the individual constitutes a danger to the community or to national security, not that he or she has been convicted of a particularly serious crime.230 Furthermore, since article 33(2) qualifies ‘a principle concerned with some of the most precious of human rights, including life itself’, it would be illogical if the mere fact of conviction could outweigh the danger posed by the individual to the host State.231 Thus, a crime will not necessarily ‘be characterised as particularly serious or not particularly serious merely by reference to the nature of the crime’,232 but will depend on the circumstances in which it was committed.

In the same case, Katz J. queried whether this approach was definitive, noting Finkelstein J.’s acknowledgment in Betkoshabeh v. MIMA that some crimes could be ‘particularly serious’ per se. Drawing on the ‘conclusive presumption’ (or non-rebuttable presumption) approach traditionally taken in US legislation,233 he argued that a decision under article 33(2) could be made in one of two ways: once the decision-maker has concluded that the individual has committed a ‘particularly serious crime’, he or she must go on to ‘consider separately the question of whether [that person] constitute[s] a danger to the Australian community or whether, alternatively, satisfaction as to his crime’s having been a particularly (p. 239) serious one [gives] rise to a conclusive presumption that he constitute[s] a danger to the Australian community’.234 The majority rejected this, stating:

The logic of the syntax of the provision moves in the opposite direction. The principal statement of exclusion is ‘who constitutes a danger to the community’. The phrase ‘having been convicted … of a particularly serious crime’ adds an additional element, but it is not expressed as if that additional element swallowed up the principal statement … The whole provision is concerned with perils represented by the refugee, either because of a threat to the security of the country, or because of a danger to its community.235

Along with a number of other jurisdictions,236 Australia has now legislated contrary to this reasoning, by prescribing crimes which are to be regarded as ‘particularly serious’ for the purposes of article 33(2) of the 1951 Convention.237 An approach in terms of the penalty imposed alone will likely be arbitrary.238 In our view, and as a matter of international law, the interpretation and application of this concept in the context of an exception to non-refoulement ought necessarily to involve an assessment of all the circumstances,239 including the nature of the offence, the (p. 240) background to its commission, the behaviour of the individual, and the actual terms of any sentence imposed. As in the case of article 1F(b),240 a priori determinations of seriousness by way of legislative labelling or other measures substituting executive determinations for judicial (and judicious) assessments are inconsistent with the international standard which is required to be applied, and with the humanitarian intent of the Convention. After all, what is at issue here is action by the State in manifest disregard of what is recognized as serious danger (persecution) to the life or liberty of a refugee. It is the nature of presumptions that they disregard context and circumstances, and therefore also the principle of individual assessment. This approach has not always been understood by national tribunals, and recent legislation in some States has tended expressly to override this dimension.241

For example, section 55 of the UK’s Immigration, Nationality and Asylum Act 2006242 permits the Secretary of State to certify ‘that the appellant is not entitled (p. 241) to the protection of Article 33(1) of the Refugee Convention’, either because article 1(F) applies or because article 33(2) applies on grounds of national security, in each case whether or not the individual concerned would otherwise be entitled to protection. The question remains whether the legislature’s attempt to oust the ‘proportionality test’ in the United Kingdom will have any significant effect,243 particularly in light of the judgment in A v. Secretary of State for the Home Department,244 and the fact that the United Kingdom is bound by the specific provisions of the European Convention on Human Rights and by the doctrine of proportionality.

Lauterpacht and Bethlehem suggest that proportionality in the article 33(2) context necessitates consideration of factors such as:

  1. (a)  the seriousness of the danger posed to the security of the country;

  2. (b)  the likelihood of that danger being realised and its imminence;

  3. (c)  whether the danger to the security of the country would be eliminated or significantly alleviated by the removal of the individual concerned;

  4. (d)  the nature and seriousness of the risk to the individual from refoulement;

  5. (e)  whether other avenues consistent with the prohibition of refoulement are available and could be followed, whether in the country of refuge or by the removal of the individual concerned to a safe third country.245

From a due process perspective, whether a refugee is a danger to the community or a danger to the security of the country is a matter to be determined on the basis of the evidence relating to that individual, considered against an understanding of the concept of security.246 ‘Seriousness’, ‘security’, and ‘danger’ are not self-applying concepts and their application in a particular case requires, as a matter of due process, that the individual should know and be able to meet the case against him or her, and have the opportunity to show why, in the circumstances, applying the exception would be disproportionate.247

The International Court of Justice has made clear that, while the essential interests of the State may include its own and its population’s security, the threat occasioned by a grave and imminent peril must be objectively established and not merely apprehended. The response of the State will be excluded, however, if other lawful means are available, even if more costly and less convenient. Moreover, as the Court has emphasized elsewhere, the concept of necessity implies and permits only what is strictly necessary for the purpose.248

(p. 242) In contrast to the 1951 Convention, the 1969 OAU Convention declares the principle of non-refoulement without exception. No formal concession is made to overriding considerations of national security, although in cases of difficulty ‘in continuing to grant asylum’ appeal may be made directly to other member States and through the OAU. Provision is then made for temporary residence pending resettlement, although its grant is not mandatory.249 The absence of any formal exception is the more remarkable in view of the dimensions of the refugee problems which have faced individual African States.

Article 3 of the Declaration on Territorial Asylum, adopted by the General Assembly only two years before the OAU Convention, not only acknowledges the national security exception, but also appears to authorize further exceptions ‘in order to safeguard the population, as in the case of a mass influx of persons’.250 The latter idea reappeared at the 1977 Conference on Territorial Asylum when Turkey, in a prescient move, proposed an amendment whereby non-refoulement might not be claimed ‘in exceptional cases, by a great number of persons whose massive influx may constitute a serious problem to the security of a Contracting State’.251 However, a mass influx alone does not justify refoulement; it must additionally jeopardize the safety or security of the local population, which is itself likely to be offset by an international response to the situation.252 To argue that an exception to the principle of non-refoulement exists in situations of mass influx253 is to overstate the case. Turkey’s decision to close its border to Kurdish refugees in 1991, may not, in the circumstances, have breached non-refoulement (understood as a general principle of international law that includes the non-rejection at the frontier), yet it certainly consolidated the idea of an exception.254 In the instant (p. 243) case, the international response was part of the problem, so far as the creation of a safe zone for Kurds in Iraq arguably removed the (legal) basis for departure in search of asylum. The uniqueness of the circumstances, however, might suggest that they have little precedential value, and that the principle of non-refoulement has emerged relatively unscathed, although proposals by EU States for reception processing centres in third countries may represent an attempt to mimic this practice.255 Nevertheless, the prospect of a massive influx of refugees and asylum seekers exposes the limits of the State’s obligation otherwise not to return or refuse admission to refugees.

Finally, has the broadened principle of non-refoulement under human rights law, which proscribes removal to persecution as well as to torture or cruel, inhuman or degrading treatment or punishment, rendered article 33(2) redundant?256 A person who fears ‘persecution’ necessarily also fears at least inhuman or degrading treatment or punishment, if not torture.257 The Joint Committee on Human Rights was aware of this in 2004 when it considered the UK’s Classification of a wide range of crimes as ‘particularly serious’ for the purposes of article 33(2). It thought it ‘likely that an individual who is treated as being within the scope of Article 33(2) … would nevertheless still be protected against return by the operation of Article 3 ECHR’.258 As such, the effect of applying article 33(2) was not necessarily refoulement but:

the deprivation of an opportunity to establish refugee status, and the various concomitant advantages which come with such status. In short, it operates like an exclusion clause, preventing a person who would otherwise qualify for refugee status from being recognised as such because of their having committed certain specified offences.259

(p. 244) The Committee’s comments suggest that article 33(2) was being used primarily as a mechanism for denying asylum to asylum seekers who had not been excluded, but who had committed a crime in the United Kingdom and whose status remained to be finally determined.260

If article 33(2) is applied to a refugee, but his or her removal is precluded by virtue of the widened operation of non-refoulement under human rights law, what effect does that have on the refugee’s legal status? The logic behind the distinction between article 1F and article 33(2) is that a refugee touched by article 33(2) retains his or her status as a Convention refugee,261 whereas a person who is excluded by article 1F never was, nor can be, a Convention refugee.

3.3  Time and Place, Ways and Means

The recognition of refugee status under international law is essentially declaratory in nature.262 The duty to protect refugees arises as soon as the individuals or group concerned satisfy the criteria for refugee status set out in the definition (flight from the State territory for relevant reasons) and come within the territory or jurisdiction of another State, regardless of whether refugee status has been formally determined. Under general principles of international law, State responsibility may arise directly from the acts and omissions of its government officials and agents, or indirectly where the domestic legal and administrative systems fail to enforce or guarantee the observance of international standards.263 The fact that the harm caused by State action may be inflicted outside the territory of the actor, or in an area identified by municipal law as an international zone, in no way diminishes the responsibility of the State.264

3.3.1  Extraterritorial application

A State’s obligations under international law extend beyond its physical territory. The United Nations Human Rights Committee has held that a State party may be (p. 245) accountable under article 2 ICCPR66 for violation of protected rights committed by its agents in the territory of another State, whether or not that State acquiesced. Although the text of article 2 suggests that a State’s obligations under the Convenant extend only to individuals ‘within its territory and subject to its jurisdiction’ (emphasis added), the Human Rights Committee’s interpretation seeks to accord with the treaty’s general object and purpose. The Committee regards it as ‘unconscionable’ to interpret article 2 as territorially-anchored, since this would lead to a double standard whereby a State party could ‘perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory’.265 Thus, the phrase is interpreted as referring not to the place where the violation occurred, but rather to the relationship between the individual and the State concerned.266

Similarly, the European Court of Human Rights, and previously also the European Commission on Human Rights,267 have affirmed that the concept of ‘jurisdiction’ in article 1 ECHR50 extends beyond Member States’ national territory when ‘acts of their authorities, whether performed within or outside national boundaries … produce … effects outside their own territory’.268 Extraterritorial jurisdiction is thus effected when a State exercises authority or control over a territory or individuals.269 In Banković v. Belgium, however, the Court stressed the exceptional nature of this principle.270 In its view, it was limited to cases such as those in which the State assumes effective control of a territory, either by military occupation or the consent, invitation or acquiescence of the government of that territory, and exercises all or some of the public powers which that government (p. 246) would normally exercise,271 and to cases ‘involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state’,272 an aspect of particular relevance to asylum claims. Furthermore, the Court noted that the European Convention applies ‘in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States’, and that it ‘was not designed to be applied throughout the world, even in respect of the conduct of Contracting States’.273 However, this apparent limitation on the extraterritorial application of ECHR50 is not reflected in the case law of the Court, including post-Banković decisions, which has extended the concept of ‘jurisdiction’ to other types of conduct occurring outside the territorial boundaries of contracting States.274 This jurisprudence seems to support Wilde’s thesis that the Banković dictum has been wrongly relied upon as a statement of principle about spatial application, instead of as an explanation of the original historical design of the European Convention.275

Unlike other provisions in the 1951 Convention which condition the rights and benefits accorded to refugees on degrees of presence and lawful residence, article 33(1) contains no such restriction. On the contrary, it prohibits the return of refugees ‘in any manner whatsoever’ to the frontiers of territories where they may be persecuted, including by way of extradition, expulsion, deportation, or rejection at the frontier. The principle applies regardless of whether the relevant action occurs ‘beyond the national territory of the State in question, at border posts or other points of entry, in international zones, at transit points, etc’.276

In domestic litigation arising out of the Haitian interdiction programme, the US Government argued that the prohibition against non-refoulement applies only (p. 247) to refugees within State territory. Beginning with a September 1981 Presidential Proclamation and Executive Order, the US Coast Guard regularly ‘interdicted’ Haitians and returned them to their country of origin, initially with a form of screening and guarantees for the non-return of those found to be refugees. The US Government informed the Haitian Government that it would not return any individual whom it determined to qualify for refugee status, and President Reagan’s Executive Order likewise confirmed, ‘that no person who is a refugee will be returned without his consent’. US officials made similar statements on other occasions in different fora.

Following the September 1991 military coup against the democratically elected Government of Haiti and President Jean Bertrand Aristide, repatriations were first suspended but then resumed after some six weeks. In May 1992, President Bush decided to continue interdiction and repatriation, but without offering the possibility of screening-in for those who might qualify as refugees.277 The US Government encouraged in-country processing instead, considering it to be a ‘viable substitute’ for the right to leave one’s home and seek protection from persecution.278 President Clinton elected to maintain the interdiction practice, which continued until May 1994 when full refugee status determination interviews on board ships were announced.279 Local court challenges were commenced, but in its 1993 decision in Sale, Acting Commissioner, INS v. Haitian Centers Council, the US Supreme Court ruled that neither domestic law nor article 33 of the 1951 Convention limited the power of the President to order the Coast Guard to repatriate undocumented aliens, including refugees, on the high seas.280

The Supreme Court decision, by an 8-1 majority, held first that domestic law provisions applied only in immigration proceedings for exclusion or deportation. As such proceedings do not operate outside the United States, neither the President nor the Coast Guard were under any statutory limitation in dealing with those found on the high seas while in flight from persecution, such as Haitians. The international law dimensions to the interdiction practice, not surprisingly, received little substantive attention. Although the Court made passing reference to the travaux préparatoires of the 1951 Convention, its essentially policy decision to deny a remedy to individuals beyond territorial jurisdiction relied mostly on the language of ‘Congressional intent’ at the time of enactment.281

(p. 248) The judgment of the Supreme Court attempted to confer domestic ‘legality’ on a practice of returning individuals to their country of origin, irrespective of their claims to have a well-founded fear of persecution. That decision could not and did not alter the State’s international obligations,282 as was recognized by the Inter-American Commission of Human Rights, which found the United States in breach of article 33(1) of the Convention.283 The Commission also held that the practice breached the asylum seekers’ right to life, liberty, and security of their persons, and the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man.284

The principle of non-refoulement can thus be seen to have crystallized into a rule of customary international law, the core element of which is the prohibition of return in any manner whatsoever of refugees to countries where they may face persecution. The scope and application of the rule are determined by this essential purpose, thus regulating State action wherever it takes place, whether internally, at the border, or through its agents outside territorial jurisdiction. This development is amply confirmed in instruments subsequent to the 1951 Convention, including declarations in different fora and treaties such as the 1984 UN Convention against Torture, by the will of States expressed in successive resolutions in the UN General Assembly or the Executive Committee of the UNHCR Programme, in the laws and practice of States, and especially in unilateral declarations by the US Government.

During the first ten years of the Haitian interdiction programme, senior US officials publicly and repeatedly affirmed the principle of non-refoulement, not only in the broad general sense,285 but also in the specific context of Haitian operations. Moreover, the relevant Executive Order stated quite clearly that ‘[t]he Attorney General shall … take whatever steps are necessary to ensure … the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland’.286 In his 16 February 1982 letter to the UNHCR Chief of Mission in Washington, D.C., US Attorney General William French Smith extended unqualified recognition to international obligations.287

(p. 249) These substantial undertakings by US government officials were applied in practice for at least ten years, until the President decided to return even Haitians who might have a ‘colorable claim’ to be refugees. The combination of declarations in the sense of an international obligation with practice confirming that obligation is conclusive evidence of the applicability of the principle of non-refoulement to the extraterritorial activities of US agents. This conclusion is further strengthened by the fact that even though the US authorities considered that the vast majority of Haitians were leaving for economic reasons, they were still prepared, against interest, to take steps to ensure that no refugees among them were returned contrary to international obligations.

In its judgment in the Nuclear Tests Cases, the International Court of Justice observed that:

… declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations … [N]othing in the nature of a quid quo pro nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement of the State was made …288

The Court further emphasized the central value of good faith in this context:

Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.289

UNHCR has been entrusted by the United Nations General Assembly with the international protection of refugees, and States in turn have formally undertaken to co-operate with UNHCR, ‘in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions’ of the 1951 Convention/1967 Protocol.290 UNHCR’s legal interests are equivalent to those of States in the circumstances described by the International Court of Justice; it was entitled to take notice of and place confidence in the declarations of the United States.

(p. 250) In fact, UNHCR appears to have done just this. At no time did the Office challenge the exercise of jurisdiction on the high seas. Rather, it focused its interventions on the adequacy of the on-board procedures, to sift out effectively those Haitians who might have a ‘colorable claim’ to asylum.291 The declaration of intent to abide by article 33, substantiated by ten years of practice in which all interdicted Haitians were screened, sufficiently confirms the ‘extraterritorial’ obligations of the United States, which are implicit in the words of the Convention.

Two final points remain for consideration. The first is that individuals must not be removed to ‘the frontiers of territories’ in which they face a risk of persecution or other serious harm. As Lauterpacht and Bethlehem rightly point out, the term ‘territories’ implies that return is prohibited to any territory in which the risk is material, irrespective of whether that territory is the individual’s country of origin.292 They argue further that the use of ‘territories’, rather than ‘States’ or ‘countries’, suggests that the legal status of the place is immaterial.293 Accordingly, in their view if an individual has taken refuge in a diplomatic mission within his or her own country, or is protected there by the armed forces of another State, then the protecting State is subject to the prohibition on refoulement and cannot release the individual back into the jurisdiction of the country of origin.294 Whether this can be reconciled with the requirement in article 1A(2) that a refugee is a person outside his or her country of origin is doubtful, since it requires interpreting ‘outside’ in a legal, jurisdictional sense, rather than a physical, territorial sense, an interpretation which is neither supported by State practice nor opinio juris.295 (p. 251) However, principles of international human rights law which prevent States from exposing individuals within their territory or jurisdiction to particular forms of serious harm may prevent the diplomatic mission from removing the individual.296

The notion of diplomatic asylum creates a conflict between the territorial jurisdiction of the State in which the embassy is physically located and the extraterritorial jurisdiction of the sending state—‘an exception to the rule that the local jurisdiction covers persons, events and things, whether foreign or national, within the territory of the acting State’.297 Whether diplomatic asylum forms part of general international law is disputed for this reason.298 In B’s case, two Afghan boys escaped from mandatory detention in Australia and made their way to the British consulate in Melbourne. There, they claimed asylum, and submitted that consular officials would breach article 3 ECHR50 if they returned them to the Australian authorities, since they would be returned to ‘inhuman and degrading’ immigration detention. Because the boys had escaped custody, the British High Court characterized them as fugitives,299 stating:

The basic principle is that the authorities of the receiving State can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction; see Article 55 of the 1963 Vienna Convention. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending State to permit the fugitive to remain within the diplomatic premises in defiance of the receiving State. Should it be clear, however, that the receiving State intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending state to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum.300

(p. 252) The judgment went on to suggest that the treatment to which the individual may be exposed need not reach the severity of a crime against humanity, but that protection against inhuman or degrading treatment or punishment will only be forthcoming if ‘the perceived threat to the physical safety of the applicants … [is] so immediate and severe’ that to return them would violate the host State’s duties under international law.301

Is the position different if an asylum seeker, outside the territory of his or her country, seeks asylum in a diplomatic mission in a third State? In such cases, the principle of non-refoulement applies, since the asylum seeker is outside the country of origin. Nevertheless, unless the removal (or denial of an entry visa) directly exposes the individual to a risk of refoulement, article 33(2) will not be breached. Noll argues that article 33(1) does not create an implied right to an entry visa for persons seeking protection at embassies in third States, because the term ‘refouler’ ‘suggest[s] a direct sovereign relationship between the removing agent and the territory from which removal takes place’,302 and simply denying an entry visa cannot trigger it. This implies that removal in such circumstances can never result in refoulement, even if the State in which the embassy is situated takes measures to remove the individual to a State in which he or she faces persecution or serious harm.303 Noll regards the act of refoulement as anchored to sovereign territorial connection and control,304 maintaining that there must be ‘a sufficient causal link between its actions or omissions and the infliction of harm’.305

It is well established that the principle of non-refoulement includes protection from return to territories where the individual, although not directly at risk of persecution, torture, or cruel, inhuman or degrading treatment or punishment, faces a danger of being expelled to other territories where such a risk exists.306 How, then, is an act of removal by one State, which leads to an individual’s refoulement by another, to be characterized as a matter of international law? Although this is commonly referred to as ‘indirect’ or ‘chain’ refoulement, such terminology is essentially descriptive and confuses the legal basis for liability, since the first State’s act is not one of refoulement per se. As a matter of State responsibility, however, liability for breaches of international law can be both joint and several. While a State that actually returns a refugee to persecution or other serious harm remains primarily responsible for that act, the first State, through its act of expulsion, may be (p. 253) jointly liable for it.307 Phrases such as ‘indirect’ or ‘chain’ refoulement are therefore misleading, since they divert attention from the basis of liability and the nature of the act attributable to the first State.308 Removal by the first State may also breach other applicable human rights provisions where the process of refusal and return amounts to cruel, inhuman or degrading treatment.309 It has also been suggested that the right to respect for private life under article 8 ECHR50 may include ‘a positive duty on a state to regularize an immigrant’s status with no prospect of removal within a reasonable timescale, where the result of limbo status is destitution through an inability to access the labour market together with a denial of access to the mainstream benefits regime’.310

3.3.2  ‘International zones’

Whereas State activities beyond territorial jurisdiction are sometimes said to be outside the scope of the non-refoulement obligation, in other circumstances international obligations are claimed to have limited effect even within the State. Any argument for the non-application of international obligations in State territory (for example, in transit or international zones, whether in the matter of refugees, asylum seekers, stowaways, or any other subject) faces substantial objections, however. It is a fundamental principle of international law that every State enjoys prima facie exclusive authority over its territory and persons within it, and with that authority or jurisdiction goes responsibility.311 Thus, a State could hardly argue that it is not bound by international duties of protection with respect to diplomatic personnel, merely by reason of the fact of their location within an ‘international’ or transit area of an airport. The European Court of Human Rights stated in Amuur v. France that ‘[d]espite its name, the international zone does not have extraterritorial status’.312 At the very least, a failure to examine (p. 254) an asylum request made in an international zone would constitute rejection at the frontier.313

Many States, of course, do choose to accord lesser rights in their municipal law to those awaiting formal admission, than to those who have entered. The United States is a typical example, where physical presence is not necessarily synonymous with legal presence for the purpose of determining constitutional guarantees. Other States make similar distinctions, for example, in the case of stowaways or illegal entrants, who are often deemed not to have entered the country. The purpose of such provisions is usually to facilitate summary or discretionary treatment, but from the perspective of international law, what counts is not the status or non-status conferred by municipal law, but the treatment in fact accorded. For international law purposes, presence within State territory is a juridically relevant fact sufficient in most cases to establish the necessary link with the authorities whose actions may be imputable to the State in circumstances giving rise to State responsibility. These flow from the fact of control over territory and include, with respect to human rights, the obligation of the State to ensure and to protect the human rights of everyone within its territory or subject to its jurisdiction.314 Municipal courts, too, have rarely doubted their authority to extend their jurisdiction and protection into so-called international zones.315

(p. 255) In examining the legality and implications of such zones, the point of departure is the State’s sovereign and prima facie exclusive authority or jurisdiction over all its territory, and the concomitant international legal responsibilities flowing from the fact of control and the activities of its agents. This authority or jurisdiction, with its basis in customary international law, is amply confirmed by international treaties, such as the 1944 Chicago Convention and the 1982 Convention on the Law of the Sea. No State, by treaty or practice, appears to have abandoned the territory comprised by its ports of entry; the extent of national control exercised therein sufficiently contradicts any assertion of their purely international character.

While obligations relating to non-refoulement and the protection of human rights come into play by reason of the juridically relevant facts of presence within State territory and jurisdiction, the State retains choice of means with regard to implementation. To apply different procedures and standards in such zones will not necessarily result in breach; the underlying practical issue is one of monitoring and compliance, but experience unfortunately confirms that errors of refoulement are more likely when procedural shortcuts are taken in zones of restricted guarantees and limited access.316

Australia’s ‘Pacific Strategy’,317 which delimits Australia’s migration zone to deny legal presence—and thus the ability to make an asylum claim—to those who are in fact present in Australian territory, has been carefully constructed so as to fall within the letter, if not the spirit, of international law. Following the Tampa incident in 2001, the Australian Parliament passed a series of laws ‘excising’ various islands and coastal ports from the migration zone, requiring that asylum seekers who land at such places to be sent to offshore processing centres elsewhere in the region (Nauru, and Manus Island in Papua New Guinea) to have their asylum claims determined by UNHCR or Australian officials.318 Such persons are termed (p. 256) ‘offshore entry persons’319 and are prohibited from instituting legal proceedings in Australian courts relating to their offshore entry, their status as unlawful non-citizens, the lawfulness of their detention, or anything relating to their removal to a third country under section 198A of the Migration Act.320 It is estimated that around 4,891 places have been excised from Australia’s migration zone.321 In May 2006, the Australian government introduced draft legislation that sought, in effect, to excise the whole of the Australian mainland for migration purposes. It proposed to transfer all ‘designated unauthorized arrivals’ (people who arrived in Australia by boat without a visa) to offshore processing centres on Nauru, and preclude them from the prospect of resettlement in Australia. Following a highly critical report by the (government-led) Senate Legal and Constitutional Affairs Committee, the government was unable to secure sufficient support and the Bill was withdrawn.322

By contrast to the varying interception measures applied by the United States, where physical presence on US soil affects an individual’s ability to apply for asylum, excision of Australian territory means that any asylum seeker who reaches an excised offshore place is not permitted to apply for asylum within Australia. The countries with which Australia has processing agreements have been declared by the Minister for Immigration to provide access to effective asylum procedures, and protection for asylum seekers and refugees that meets relevant human rights standards323 which in Australia’s view satisfies its international legal obligations. Indeed, Australia has not sought to argue that excision relieves it of its international obligations,324 and such an argument would necessarily fail.325 Rather, a key purpose of excision is to limit the operational scope of the Migration Act, and (p. 257) to reduce the procedural entitlements of asylum seekers,326 and thereby deterring them from seeking asylum in Australia. However, the excision of territory, as a means of denying access to asylum procedures, may also constitute a breach of Australia’s duty to apply its 1951 Convention obligations in good faith, as well as other human rights instruments and customary international law,327 and not to frustrate or defeat that treaty’s object and purpose.328

3.3.3  Non-refoulement and extradition

The 1951 Convention says nothing about the extradition of refugees. In principle, non-refoulement should also apply in this context, for other provisions of the Convention already recognize the interests of the State of refuge in not committing itself to the reception of serious criminals. Furthermore, article 33(1) prohibits removal ‘in any manner whatsoever’. In 1951, however, a number of States were of the view that article 33 did not prejudice extradition.329 One suspected of a serious non-political crime would in any event be excluded from the benefits of refugee status,330 but one suspected or guilty of a non-serious non-political crime would remain liable to extradition, even to the State in which he or she had a well-founded fear of persecution. Any conflict of treaty obligations might be further dependent upon which obligation was contracted first, although there is an absolute prohibition on removing an individual to a State in which he or she is at risk of torture.331 Some States also proscribe extradition to capital punishment, or to cruel, inhuman or degrading treatment or punishment.332

(p. 258) This issue today requires analysis of State practice since 1951, in light of the object and purpose of the Convention and the principle of non-refoulement. If States had reservations about the relationship between extradition and article 33 in 1951, these have been displaced by subsequent regional, bilateral, and multilateral State practice. The 1981 Inter-American Convention on Extradition precludes extradition ‘[w]hen, from the circumstances of the case, it can be inferred that persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons’.333 Similarly, the 1957 European Convention on Extradition, for example, prohibits extradition, ‘if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of those reasons’.334 The Committee of Experts of the Council of Europe expanded this article expressly to include the basic elements of the refugee definition, although it declined to write in ‘membership of a particular social group’ on the ground that it might be interpreted too freely. That apart, every indication is that the Committee intended to close the gap between the political offender and the refugee. It further proposed that the transit of those extradited be excluded through any territory where the life or freedom of the person claimed could be threatened for any of the stated reasons, and this was included in article 21.335

Article 3 of the European Convention on Extradition now serves as a model for bilateral treaties and municipal laws.336 It clearly influenced the Scheme for the Rendition of Fugitive Offenders adopted in 1966 by the Meeting of Commonwealth Law Ministers,337 and implemented in many Commonwealth countries since then,338 and is likewise reflected in a number of other multilateral agreements.339

(p. 259) The inclusion of the principle aut dedere aut judicare in instruments aimed at suppressing certain crimes with an international dimension340 is further acknowledgment that even the serious criminal may deserve protection against persecution or prejudice, while not escaping trial or punishment. Where non-extradition in such cases is prescribed as an obligation, the discretion of the State is significantly confined. Non-refoulement becomes obligatory341 in respect of a class of alleged serious offenders, and no less should be required for the non-serious criminal who would otherwise fall within the exception.342

The extradition of refugees was examined in 1980 by the Executive Committee, which reaffirmed the fundamental character of the principle of non-refoulement, and recognized that ‘refugees should be protected in regard to extradition to a country where they have well-founded reasons to fear persecution on the grounds enumerated in Article 1(A)(2) of the 1951 Convention’.343 Anxious to ensure not only the protection of refugees, but also the prosecution and punishment of serious offences, the Executive Committee stressed ‘that protection in (p. 260) regard to extradition applies to persons who fulfil the criteria of the refugee definition and who are not excluded by virtue of Article 1(F)(b)’ of the Convention.344

Judicial decisions from different jurisdictions support this approach. In the United Kingdom, a serious risk of prejudice has been considered sufficient to justify protection in extradition and refugee cases, certainly since the decision of the House of Lords in Fernandez v. Government of Singapore.345 Courts in other States have also consolidated the basic principle of protection against extradition in favour of the refugee. In Bereciartua-Echarri, for example, the French Conseil d’Etat ruled in 1988 that the appellant could not be extradited so long as he retained the status of refugee, save in the serious cases contemplated by article 33(2) of the Convention. This was part of the general principles of refugee law, and to permit extradition would render the concept of protection ineffective.346 In a 1990 decision, the Schweizerisches Bundesgericht (Swiss Federal Court) also ruled that a refugee could not be returned to his or her country of origin. Most States, said the Court, consider that article 33 is a legal bar to extradition; the article’s purpose is to guarantee refugees against the loss of protection in the asylum State, and it would be unjust if a refugee who could not lawfully be expelled to the country of origin, could nevertheless be extradited.347 Similarly, the Slovenian Constitutional Court held in 2000 that a decision granting asylum prevents any forcible removal of the individual concerned, including extradition.348 Following this rationale, the Swiss Bundesgericht ruled that an extradition order would be given suspensive effect until refugee status had been finally determined, so as to avoid a conflict between Switzerland’s extradition obligations and its duties (p. 261) under the 1951 Convention.349 Extradition is also barred if there is a risk that the requesting State may expose the individual to refoulement by surrendering him or her to a third State.350 In the French, Swiss, and Slovenian cases it was implicitly accepted that extradition might proceed, once or if asylum or refugee status were revoked in accordance with the Convention.

In the Altun case, the European Commission considered that even though extradition for a political offence did not necessarily raise an issue under article 3 ECHR50, the facts might nevertheless oblige it ‘to determine whether … there is a certain risk of prosecution for political reasons which could lead to an unjustified or disproportionate sentence being passed on the applicant and as a result inhuman treatment’. The Commission took account of the applicant’s political past, the political background to the extradition request, and occurrences of torture in Turkey. It was unable to rule out ‘with sufficient certainty that the criminal proceedings … had been falsely inspired’, or dismiss the fact that the applicant ‘is not someone who may be considered protected from all danger’.351

State practice reflects an acceptance of ‘conditional’ extradition, based on guarantees by the receiving State that the transfer will not constitute refoulement. An assurance by the receiving State not to impose the death penalty, for example, even where that would be permissible under domestic law, is regarded by many States as sufficient to enable extradition within the framework of their human rights obligations. However, this practice has been criticized as incompatible with the absolute nature of States’ non-refoulement obligations under article 3 ECHR50, article 3 CAT84, and article 7 ICCPR66, which cannot be ‘contracted out of’ by guarantees.352 Some commentators suggest that guarantees may be appropriate to ensure that the individual will not be exposed to capital punishment or an unfair trial, but will generally be insufficient to relieve the State of its non-refoulement obligations with respect to torture or cruel, inhuman or degrading treatment or punishment, especially if there is a pattern of abuse in the receiving State.353 The UN Commission on Human Rights Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, has (p. 262) expressed concern that States are using diplomatic assurances and memoranda of understanding to circumvent the absolute prohibition on torture under international law, noting that bilateral agreements are contrary to CAT84 and undermine the monitoring system provided by the UN treaty bodies. Furthermore, the fact that such agreements are sought ‘is already an indicator of the systematic practice of torture in the requested States’, yet they seek only to ensure that particular individuals are not tortured, rather than condemning the system of torture.354

In conclusion, State practice, and the greater body of opinion representing those most active in the protection of refugees and the development of refugee law, regards the principle of non-refoulement as likewise protecting the refugee from extradition.355

3.3.4  Non-refoulement and expulsion356

While States may be bound by the principle of non-refoulement, they as yet retain discretion as regards both the grant of ‘durable asylum’ and the conditions under which it may be enjoyed or terminated. States parties to the 1951 Convention/1967 Protocol, however, have acknowledged that the expulsion of refugees raises special problems, and under article 32 they undertake not to ‘expel a refugee lawfully in their territory save on grounds of national security or public order’. Decisions to expel are further required to be in accordance with due process of law and, ‘except where compelling reasons of national security otherwise require’, refugees shall be accorded the right of appeal.357 Moreover, refugees under order (p. 263) of expulsion are to be allowed a reasonable period within which to seek legal admission into another country, though States retain discretion to apply ‘such internal measures as they may deem necessary’.

The restricted grounds of expulsion have been adopted in the laws of many States,358 and have been taken into account in a number of judicial decisions.359 The benefit is limited to refugees who enjoy what might loosely be called ‘resident status’ in the State in question, and one admitted temporarily remains liable to removal in the same way as any other alien.360 The permitted power of expulsion, however, does not include the power to return the individual to the country in which his or her life or freedom may be threatened, unless the further exacting provisions which regulate exceptions to the principle of non-refoulement are also met.361 Expulsion to torture is prohibited in all circumstances.362 In 2005, the Executive Committee again expressed deep concern that ‘refugee protection is seriously jeopardized by expulsion of refugees leading to refoulement’, and called on States ‘to refrain from taking such measures and in particular from returning or expelling refugees contrary to the principle of non-refoulement’.363 Article 32 thus supplements, but is limited by, article 33.

(p. 264) Article 32 may yet have both advantages and disadvantages for the refugee. Thus, one expelled for the serious reasons stated in article 32(1) is likely to face major Difficulties in securing admission into any other country.364 Return to the country of origin being ruled out, the refugee may be exposed to prosecution and detention for failure to depart. As only the State of nationality is obliged to admit the refugee,365 the expelling country may find itself frustrated in its attempts at removal. For these reasons, in 1977, the Executive Committee recommended that expulsion should be employed only in very exceptional cases. Where execution of the order was impracticable, it further recommended that States consider giving refugee delinquents the same treatment as national delinquents, and that the refugee be detained only if absolutely necessary for reasons of national security or public order.366

3.3.5  Non-refoulement and illegal entry

In view of the normative quality of non-refoulement in international law, the precise legal status of refugees under the immigration or aliens law of the State of refuge is irrelevant, although a State seeking to avoid responsibility will often classify them as prohibited or illegal immigrants. Refugees who flee will frequently have no time for immigration formalities, and are in any case likely to be ineligible for visas sought through official migration channels. Allowance for this is contained in article 31 of the Convention, which of all articles comes closest to dealing with the controversial question of admission. This is not formally required; instead, penalties on account of illegal entry or presence shall not be imposed on refugees ‘coming directly from a territory where their life or freedom was threatened … provided they present themselves without delay … and show good cause for their illegal entry or presence’.367 Refugees are not required to have come directly from their country of origin, but other countries or territories passed through should also have constituted actual or potential threats to life or freedom. Indeed, the drafters of the provision expressly noted that someone who had spent a fortnight or so elsewhere before reaching the country in which he or she claimed asylum should not be precluded from the protection of article 31,368 and this was and, (p. 265) again endorsed by an Expert Roundtable in 2001.369 The protection applies not only to persons ultimately accorded refugee status, but also to persons claiming asylum in good faith, including those travelling on false documents.370 What remains unclear is whether the refugee is entitled to invoke article 31 when continued flight has been dictated more by the refusal of other countries to grant asylum, or by the operation of exclusionary provisions such as those on safe third country, safe country of origin or time limits. Whether these constitute ‘good cause’ for illegal entry would seem to rest with the State authorities, subject to the controlling impact of non-refoulement.371 However, having a well-founded fear of persecution is generally recognized in itself as constituting ‘good cause’.372 Furthermore, in Adimi, Simon Brown L.J. found that refugees have ‘some element of choice’ as to where they claim asylum:

[A]ny merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and … the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.373

International law does not impose a duty on the asylum seeker to lodge a protection claim at any particular stage of flight. On the other hand, domestic law may preclude asylum seekers from lodging an asylum claim if they have transited through other ‘safe’ countries.374 Furthermore, States may legislatively stipulate the meaning of ‘without delay’ by requiring that asylum seekers lodge an asylum claim within a prescribed period, or else lose entitlements to particular benefits.375

(p. 266) The term ‘penalties’ is not defined in article 31, prompting the question whether it encompasses only criminal sanctions, or whether it also extends to administrative penalties (such as administrative detention). Following the Human Rights Committee’s reasoning that the term ‘penalty’ in article 15(1) ICCPR66 must be interpreted in light of that provision’s object and purpose,376 article 31 warrants a broad interpretation reflective of its aim to proscribe sanctions on account of illegal entry or presence. An overly formal or restrictive approach is inappropriate, since it may circumvent the fundamental protection intended.377 Thus, measures such as arbitrary detention378 or procedural bars on applying for asylum may constitute ‘penalties’.379 This is supported by Executive Committee Conclusion No. 22 (1981), which states that asylum seekers should ‘not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful’.380 In Conclusion No. 97 (2003), the Executive Committee made clear that intercepted asylum seekers ‘should not become liable to criminal prosecution under the Protocol against the Smuggling of Migrants by Land, Sea and Air for the fact of having been the object of conduct set forth in article 6 of the Protocol; nor should any intercepted person incur any penalty for illegal entry or presence in a State in cases where the terms of Article 31 of the 1951 Convention are met’.381

Though administrative detention is technically permissible under article 31(2), it will be equivalent to a penal sanction whenever basic safeguards are lacking (with respect to conditions, duration, review, and so on). In this context, the distinction between administrative and criminal sanctions becomes irrelevant, and the key issue is whether the measures taken are reasonable and necessary, arbitrary or discriminatory, or a breach of human rights law.382

(p. 267) To impose penalties in the absence of individual assessment of the asylum seeker’s claim not only breaches article 31(1), but is also likely to violate the State’s obligation to ensure and protect the human rights of everyone within its territory or subject to its jurisdiction.383 A conviction may only be executed once it has been determined that the individual is not a Convention refugee; this has not always been respected in State practice.384

At the 1951 Conference, several representatives considered that the undertaking not to impose penalties did not exclude the possibility of resort to expulsion.385 Article 31 does not require that refugees be permitted to remain, and paragraph 2 emphasizes this point indirectly, by providing:

The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and … [they] shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country (emphasis added).

Given that the principle of non-refoulement remains applicable, the freedom of the State finally to refuse regularization of status can well be circumscribed in practice. Article 31, on its face, nevertheless appears to allow the State to continue to keep the unsettled refugee under a regime of restricted movement, for example, in prison, camp, or settlement, or subject to other restrictions, such as denial of access to employment, social security, or equivalent support. For many States, however, their human rights obligations will further limit their freedom of action, and require that refugees not be rendered destitute or otherwise subject to inhuman or degrading treatment.386

4.  Measures not amounting to refoulement

The core of meaning of non-refoulement requires States not to return refugees in any manner whatsoever to territories in which they face the possibility of persecution. But States may deny admission in ways not obviously amounting to breach of the principle. For example, stowaways and refugees rescued at sea may be refused entry; refugee boats may be towed back out to sea and advised to sail on; and (p. 268) asylum applicants may be sent back to transit or ‘safe third’ countries. State authorities may also induce expulsion through various forms of threat and coercion.387

4.1  Stowaways

Without breaching the principle of non-refoulement, the State where a stowaway asylum seeker arrives may require the ship’s master to keep the stowaway on board and travel on to the next port of call; or it may call upon the flag State to assume responsibility where the next port of call is unacceptable; or it may allow temporary disembarkation pending resettlement elsewhere. In the absence of rules regulating the appropriate State to consider the asylum claim, the situation is comparable to that of refugees in orbit, while practical solutions are made more difficult to obtain by the tendency of States’ immigration laws to deal summarily with stowaways.388

On several occasions during the Indo-China exodus, port of call States sought to make stowaways’ disembarkation conditional on guarantees of resettlement from flag States, by analogy with the then developing practice for rescue-at-sea cases in South East Asia.389

The issue of stowaway asylum seekers was first briefly examined by an Executive Committee working group during a rescue-at-sea meeting in Geneva in July 1982. While it was agreed that the principle of non-refoulement should be maintained, there were widely diverging views on how problems should be solved, and the recommendations on stowaways were not adopted.390 Although there was more success in 1988, the debate was not all plain sailing. Executive Committee (p. 269) Conclusion No. 53 (1988) emphasized that like other asylum seekers, stowaway asylum seekers ‘must be protected against forcible return to their country of origin’. Without prejudice to any flag State responsibilities, it also recommended that they ‘should, whenever possible, be allowed to disembark at the first port of call’, with the opportunity to have their refugee claim determined, ‘provided that this does not necessarily imply a durable solution in the country of the port of disembarkation’.391

State practice has not so far given rise to a rule on the treatment of stowaway asylum seekers, although attempts have been made to promote shared responsibilities for stowaways generally.392 Guidelines promulgated by the International Maritime Organization (IMO) and reflected in the Convention on the Facilitation of Maritime traffic, probably encapsulate the prevailing view of States, which recognizes that ‘stowaways arriving at or entering a country without the required documents are, in general, illegal entrants’, and ‘[d]ecisions on dealing with such situations are the prerogative of the countries where such arrival or entry occurs.’393 In reality, however, the discretion of the coastal State may be limited by the particular facts of the case. If the flag State refuses to accept any responsibility for resettlement and if the ship’s next port of call is in a country in which the stowaway asylum seeker’s life or freedom may be threatened, then the practical effect of refusing disembarkation is refoulement. The nominal authority of the flag State to require diversion to a safe port, which would in any case be controversial where a charter party was involved, can hardly be considered a practical alternative, or ‘last opportunity’, to avoid refoulement. The paramount consideration remains the refugee status of those on board; a refusal to take account of their claims, either on the specious basis that they have not ‘entered’ State territory or on the (disputed) ground that they are the responsibility of the flag or any other State, would not suffice to avoid liability for breach of the principle of non-refoulement.394

(p. 270) 4.2  Arrival of Asylum Seekers by Boat

The arrival of asylum seekers by boat puts at issue not only the interpretation of non-refoulement, but also the extent of freedom of navigation and of coastal States’ right of police and control. In South East Asia during the Indo-China exodus, States several times prevented boats from landing, and towed back to the high seas many which had penetrated the territorial sea and internal waters.

The United States and Australia actively pursue interception policies, using coast guard or navy boats forcibly to prevent the arrival of boats carrying migrants.395 As already noted, in 1981, the United States announced a policy of ‘interdiction’ on the high seas of boats which were believed to be bringing illegal aliens to that country. In September 2001, Australia established a naval interception programme called ‘Operation Relex’,396 and began excising territory from its domestic ‘migration zone’ in order juridically to deny the fact of ‘entry’ to asylum seekers arriving by boat. As part of ‘Operation Relex’, two boats that entered Australian waters in October 2001 were intercepted, detained, and returned to Indonesian waters without any assurances by Indonesia to respect the principle of non-refoulement. Domestic attempts such as these to regulate access to territory cannot, however, circumvent States’ obligations under international law.

From time to time, European States have also engaged in interception at sea.397 Certain coastal States have refused to allow boats from North Africa to disembark, while others have been returned without allowing the asylum seekers on board to have a substantive hearing of their claims.398 Italy has coordinated interception programmes in the Mediterranean. In November 2005, the 35 EuroMed States, comprising the 25 EU Member States and 10 Mediterranean partner governments, met for the first time in a decade to discuss cooperation on population movements across the Mediterranean Sea. UNHCR called on the EuroMed States to strengthen their commitment to the principles of refugee protection, in light of rising death tolls at sea and events involving asylum seekers leaving Morocco and Spain’s North African enclaves.399

The high seas,400 of course, are not subject to the exercise of sovereignty by any State, and ships are liable to the exclusive jurisdiction of the flag State, save in (p. 271) exceptional cases provided for by treaty or under general international law. The freedom of the high seas, however, is generally expressed as a freedom common to States,401 while the boats of asylum seekers, like their passengers, will most usually be denied flag State protection. Similarly, the right of innocent passage for the purpose of traversing the territorial sea or entering internal waters is framed with normal circumstances in mind. A coastal State may argue, first, that boats of asylum seekers are to be assimilated to ships without nationality402 and are subject to boarding and other measures on the high seas.403 The better view is that this does not extend to a right to tow a boat to another part of the sea.404 Additionally, the State may argue that existing exceptions to the principle of freedom of navigation, applying within the territorial sea and the contiguous zone,405 justify such preventive measures as the coastal State deems necessary to avoid landings on its shores.

Under general international law, ships on the high seas may be boarded only in very limited circumstances, namely, suspicion of piracy or slave trading, where the ship has no nationality or has the same nationality as the warship purporting to exercise authority, or where the ship is engaged in unauthorized broadcasting.406 Somewhat different considerations arise where, under a bilateral agreement, a flag State agrees to permit the authorities of another State to intercept its vessels. Precedents have existed for many years in regard to smuggling, slaving, and fisheries conservation. Under the Haitian interdiction programme, the US Coast Guard was instructed to stop and board specified vessels, including those of US nationality, or no nationality, or possessing the nationality of a State which had agreed to such measures. Those on board were to be examined and returned to their country of origin, ‘when there is reason to believe that an offence is being committed against the United States immigration laws … ’.407 Australia’s border (p. 272) protection legislation permits the authorities to chase and board a foreign ship, including by force if necessary.408 In Latin America, the Regional Conference on Migration has discussed programmes for returning boats intercepted on the high seas to their countries of origin with the assistance of the IMO.409

The lack of nationality perhaps most closely approximates the situation of asylum seekers, but even if their boats are without the effective protection of the country of origin, it is doubtful whether they can be assimilated to ships without nationality. No boat is ever entirely without the protection of the law. Obligations with regard to the rescue of those in distress at sea will circumscribe a State’s freedom of action in certain cases. In others, elementary considerations of humanity410 require that account be taken of the rights to life, liberty, and security of the person, and to freedom from torture, cruel, inhuman and degrading treatment or punishment; with respect to many such rights no derogation is permitted, even in time of public emergency threatening the life of the nation.

In the absence of an armed attack, the use of force against asylum seekers cannot be justified on the ground of self-defence.411 Notions of necessity412 or self-preservation,413 as well as exceptions relating to the ‘peace, good order or security’ of the coastal State,414 are subject to the limitations just set out. While a State necessarily enjoys a margin of appreciation in determining whether an influx of asylum seekers constitutes a threat, the lawfulness of measures taken to meet it will depend on there being some relationship of proportionality between the means and the end. International procedures for assistance and for finding solutions to refugee problems exist, and it is highly doubtful whether the use of such force as is reasonably likely to result in injury or death can ever be justified.415

4.2.1  Internal waters and the territorial sea

Internal waters, lying behind the baselines used to delimit territorial waters, are completely within the jurisdiction of the State. The territorial sea also is an area (p. 273) over which the coastal State exercises full sovereignty and in which, subject to the requirements of innocent passage, all the laws of the coastal State may be made applicable. The sovereignty here exercised is no different in kind from that over State territory.

Under international law, States are entitled to regulate innocent passage through the territorial sea,416 for example, to prevent the infringement of immigration provisions. Non-compliance with such regulations may make passage non-innocent. Articles 19(2)(g) and 25 of the 1982 UN Law of the Sea Convention (UNCLOS) are probably declaratory of customary international law. Article 19(2)(g) provides:

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

  1. (g)  the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State …

It is important to note that passage must be ‘prejudicial to’, not merely create a disturbance, and the relevant prejudicial activities listed in article 19(2)(g) are exhaustive.417 Article 25 of UNCLOS82, and article 16 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone before it, provides expressly that, ‘The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.’ This does not necessarily authorize States to remove a vessel engaged in non-innocent passage from the territorial sea, since States are only permitted to take such steps as are necessary to prevent that passage.418

Although the territorial limits of a State run to the boundaries of its territorial sea, it does not follow that entry within the latter constitutes entry within the State, where ‘entry’ is the juridical fact necessary and sufficient to trigger the application of a particular system of international rules, such as those relating to landings in distress or immunity for illegal entry.419 States generally apply their (p. 274) immigration laws not within territorial waters, but within internal waters, even though it may be argued that ‘entry’ occurs at the moment when the outer limit of the territorial sea is crossed. Under article 31 of the 1951 Convention, refugees who cross into territorial waters and who otherwise satisfy the requirements of that provision could be said to have entered illegally and to be entitled to exemption from penalties. Entry within territorial waters may be an ‘entry’ for certain purposes,420 but it is incorrect to generalize from these particulars. The notion of distress, or force majeure, reflects not so much a right of entry, as a limited immunity for having so entered in fairly well-defined circumstances.421 The meaning of ‘distress’ is not defined, but may be linked to the preservation of human life,422 or may result from ‘the weather or from other causes affecting the management of the vessel’.423 A vessel in distress may enter the territorial waters of another State and avoid sanctions for violation of domestic immigration or customs laws.424 However, if the emergency is responded to at sea, as the Australian authorities sought to do in the case of the Tampa, then this will negate the need to enter another State’s port.425 Similarly, article 31 of the 1951 Convention, within its restricted area of application, operates as a defence to prosecution and penalty, but neither force majeure nor article 31 come into operation unless and until a measure of enforcement action is taken.

The coastal State may elect to exercise jurisdiction, and prosecute and punish, or simply prohibit and prevent the passage in question.426 The fact that a vessel may be carrying refugees or asylum seekers who intend to request the protection of the coastal State arguably removes that vessel from the category of innocent passage, even though the status of the passengers may entitle them to claim immunity from penalties under article 31 of the 1951 Convention. Even if the refugee character of (p. 275) those on board were compatible with innocent passage, this would not alone entail a right of entry into any port, although other rules of international law may affect or control the discretionary decision as to what is to be done with respect to any particular vessel. International law nevertheless allows States to take all reasonable measures in the territorial sea to prevent the entry into port of a vessel carrying illegal immigrants, and to require such vessel to leave the territorial sea.

4.2.2  The contiguous zone

In the law of the sea, the term ‘contiguous zone’ describes the area of seas between twelve and twenty-four miles from the baselines employed to delimit the boundaries of the territorial sea.427 In this zone, or equivalent areas, international law has long limited the range of permissible enforcement measures.428

Article 24 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone acknowledges a power of control, ‘to prevent infringement within its territory or territorial sea’. O’Connell observes, however:

It is also arguable that necessary power to control does not include the right to arrest, because at this stage (i.e. that of a ship coming into the contiguous zone) the ship cannot have committed an offence. Enforced direction into port may not be arrest, in a technical sense, but it is tantamount to it and therefore is in principle excluded. The necessary examination should take place at sea, while the ship to be examined is in the zone.429

He further suggests that ‘additional powers of seizure for the purpose of punishment’ would come into operation where illegal immigrants have been landed, but this would be because the infringement of protected interests has already occurred in national territory.

The contiguous zone exists for the protection of the coastal State’s customs, fiscal, sanitation, and immigration interests. Even before the crystallization of State competence in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, it was widely recognized that jurisdiction might be exercised beyond the ‘exact boundaries’ of a State’s territory, for law enforcement purposes, or in order to preserve national safety.430 The question is, whether ‘the interest sought to be protected warrants the authority asserted for the time projected in the area specified’.431 By comparison with those which run in the territorial sea, (p. 276) the special jurisdictional rights which a State can exercise in the adjacent area of the contiguous zone do not clearly include the interception of vessels believed to be carrying asylum seekers.432 One authority argues that ‘such force and only such force may be used as will prevent the attempted incursion of illegal immigrants from becoming a danger to the preservation of the State’.433 Although the basic principle of control is undisputed, this proposition begs the question, what is permissible in less extreme cases. The degree of force which might be used would need to be determined in light of all the circumstances, in the same way that the initial exercise of discretion would need to take into account the safety of passengers, the status of those on board, and the likely consequences of interdiction.434

If there are reasonable and probable grounds to believe that a vessel’s intended purpose is to enter the territorial sea in breach of the immigration law, the coastal State may have the right to stop and board the vessel. Australian law authorizes naval vessels to fire warning shots into the ocean to encourage vessels to turn back, and if these are not heeded, to dispatch armed boarding parties to assume control of the vessel.435 However, action taken under those powers, including inspection and redirection, might be objected to by flag States.436 In the absence of the flag State, the Office of the United Nations High Commissioner for Refugees might be expected to make representations.437

In summary, the exercise and enforcement of jurisdiction over ships in the contiguous zone may violate international law where it is inconsistent with the purposes for which the contiguous zone exists and the limited authority allowed to coastal States; or because the exercise of enforcement powers (surveillance, identification, interception, and arrest) exceed what is permissible under that (p. 277) law.438 Furthermore, if forcing a ship from the contiguous zone to the high seas would leave refugees with no option but to return to their country of origin, or to a third State that would return them, this constitutes refoulement.

4.2.3  The consequences of enforcement action

The simple denial of entry of ships to territorial waters cannot be equated with breach of the principle of non-refoulement, which requires that State action have the effect or result of returning refugees to territories where their lives or freedom would be threatened. In its comments in 1950 on the draft convention, the Ad hoc Committee observed:

… the obligation not to return a refugee to a country where he was persecuted did not imply an obligation to admit him to the country where he seeks refuge. The return of a refugee-ship, for example, to the high seas could not be construed as a violation of this obligation.439

Denial of entry to internal or territorial waters must therefore be distinguished from programmes of interdiction of boats which are accompanied by the actual, physical return of passengers to their country of origin. Even in the latter situation, the principle of non-refoulement would come into play only in the presence of certain objective conditions indicating the possibility of danger befalling those returned.440 It does not follow that States enjoy complete freedom of action over arriving boats, even if they come in substantial numbers and without nationality. The range of permissible measures is limited by obligations relating to rescue at sea and arising from elementary considerations of humanity, while action which would directly effect the return of refugees is prohibited by the principle of non-refoulement. Whether on the high seas or in waters subject to the jurisdiction of any State, refugees may also be protected by UNHCR in the exercise of its functional protection role.441

4.3  Rescue-at-Sea

Asylum seekers have been escaping by sea for years, only the most recent examples being Cubans, Haitians, Indo-Chinese, and Albanians. Historically, international (p. 278) law has been unclear about State responsibility for persons rescued at sea. There were several options open to the State where those rescued arrived: it could refuse disembarkation absolutely and require ships’ masters to remove them from the jurisdiction, or it could make disembarkation conditional upon satisfactory guarantees as to resettlement, care, and maintenance, to be provided by flag or other States, or by international organizations. Recent amendments to international maritime treaties for the first time impose an obligation on States to cooperate and coordinate the disembarkation of those rescued at sea,442 although it remains to be seen how this will operate in practice.443 Since asylum seekers’ claims can only be finally determined after disembarkation, it is important that they are taken to a place of safety without delay. However, a categorical refusal of disembarkation cannot be equated with breach of the principle of non-refoulement, even though it may result in serious consequences for asylum seekers.444

The duty to rescue those in distress at sea is firmly established in both treaty445 and general international law.446 Article 98 of UNCLOS82, for example, requires ship captains to ‘render assistance to any person found at sea in danger of being lost’, and ‘to proceed with all possible speed to the rescue of persons in distress’, insofar as this is reasonable and will not seriously endanger the ship, its crew or its passengers.447 The importance of this duty is reflected in the municipal law of States such as the United Kingdom and Germany, which impose criminal liability on ship masters who fail to render assistance to persons in distress at sea.448 A number of international treaties require States to maintain effective search and (p. 279) rescue facilities,449 to provide assistance ‘regardless of the nationality or status of such a person’,450 and to deliver those rescued to ‘a place of safety’, commonly regarded as the nearest port of call.451

However, article 19(2)(g) of UNCLOS82 provides inter alia that a foreign ship’s right to innocent passage will be violated if it loads or unloads any person contrary to the coastal State’s immigration laws, and article 25 of UNCLOS82 and article 16 of the 1958 Geneva Convention on the High Seas before it expressly provide that ‘[t]he coast State may take the necessary steps in its territorial sea to prevent passage which is not innocent’.452 Accordingly, there are gaps in international maritime and refugee law which States with conflicting interests may seek to exploit. Neither branch of law resolves the question of whether entering a State’s territorial waters constitutes entry to State territory, or how to deal with the rescue of those who do not in fact enjoy the protection of their country of origin and are unable or unwilling to return home.453

The Executive Committee sought to address these lacunae during the Indo-China exodus, when, given the expense and delay which often resulted from attempting to disembark those rescued at sea, many in distress were simply ignored by ships’ masters and left to their fate.454 In a series of international conclusions promoting disembarkation and admission pending a durable solution,455 (p. 280) the Executive Committee stressed the ‘humanitarian obligation of all coastal States to allow vessels in distress to seek haven’,456 and noted that those rescued at sea ‘should normally be disembarked at the next port of call’.457 The Executive Committee emphasized that ‘refugee problems are the concern of the international community and their resolution is dependent on the will and capacity of States to respond in concert and wholeheartedly, in a spirit of true humanitarianism and international solidarity’.458 It recognized that the duty to rescue refugees required a division of responsibilities between flag, coastal, and resettlement States.459

The principle of flag State responsibility cannot be said to have established itself as ‘international custom, as evidence of a general practice accepted as law’. International responses to the Tampa incident, discussed below, reaffirm this position. The special circumstances which affected the finding of solutions to the Indo-Chinese refugee problem dictated the emergence of a particular usage, limited also in time and place. In other situations, such as the Tampa crisis, it may be appropriate to emphasize the responsibility of the first port of call, given the inescapable but internationally relevant fact of the refugee’s presence within the territory of the State. This is the approach favoured by UNHCR, which regards the ‘coastal State in the immediate vicinity of the rescue’ as the State which will generally be responsible for admitting the rescued asylum seekers and providing access to asylum determination procedures.460 At a 2002 Expert Roundtable on rescue-at-sea, the meeting noted that coastal States have a ‘responsibility to facilitate rescue through ensuring that the necessary enabling arrangements are in place’, while flag States are responsible for ensuring that ships’ masters come to the assistance of people in distress at sea.461 UNHCR notes, however, that the flag State may retain responsibility where it is clear that those rescued intended to seek asylum from that State; if the numbers of those rescued are very small and it is reasonable for them to remain on the vessel until it reaches the flag State’s territory; or if the flag State interdicts the asylum seekers.462 There is also some practice in support of flagship responsibility for asylum seekers rescued close to their own territory.463 As with stowaways, effective solutions ought in principle to be attainable (p. 281) through a weighing of competing interests, taking account not only of the prospects, if any, of local integration, but also of notions of international solidarity and burden-sharing,464 as well as the extent to which refusal of disembarkation may lead in fact to refoulement, or to other serious harm for the asylum seekers.

The most recent impetus for developments in standard-setting and clarification of legal principles concerning rescue-at-sea and disembarkation was the Tampa incident, which highlighted the exploitable gaps in international maritime and refugee law concerning State responsibility for rescue and landing. In August 2001, in response to an Australian-coordinated search and rescue operation, the Norwegian MV Tampa rescued 433 asylum seekers from a sinking Indonesian flagged vessel 75 nautical miles off the Australian coast. When the Tampa began heading towards the Australian port of Christmas Island, the Australian authorities asked the captain to change course towards Indonesia, warning that if the ship entered Australia’s territorial sea with the intention of disembarking the rescued asylum seekers, he would be subject to prosecution under the Migration Act 1958 (Cth) for people smuggling.465

Norway’s view, based on article 98 of UNCLOS82, customary international law, and generally accepted humanitarian standards (such as those reflected in Executive Committee Conclusions during the Indo-Chinese crisis, in which Australia had taken an active role), was that Australia had an obligation to allow the rescued asylum seekers to be disembarked at the nearest port, Christmas Island. Australia’s legal position was not entirely clear, although it appeared to hold Indonesia responsible as the State of embarkation.466 Australia defended its stance on the (p. 282) basis of national security and its sovereign right to determine who entered its territory and in what manner.467 Although the doctrine of State sovereignty accords coastal States significant discretion in determining how to respond to the imminent arrival of refugee boats or rescued asylum seekers, it is clear that Australia (even if not exclusively) had protection responsibilities towards those rescued by the Tampa, arising from the undeniable refugee character of the individuals concerned, the Australian military’s assertion of effective control over them through the search and rescue operation, and the fact that asylum requests were lodged in Australian waters.468 Certainly, Australia had no right to impose protection responsibilities unilaterally on Norway or Indonesia. Neither international treaty law nor State practice arising from the Indo-Chinese exodus supports the imposition of an obligation on the flag State to engage in refugee status determination procedures, with the exception of naval vessels and other ships of State.

The Tampa incident provoked a number of attempts at the international level to clarify the principles relating to rescue-at-sea and disembarkation. In November 2001, the International Maritime Assembly adopted a resolution recommending a comprehensive review of safety measures and procedures for the treatment of rescued persons.469 In March 2002, UNHCR convened an expert roundtable on rescue-at-sea, attended by thirty-three representatives from government, the shipping industry, international organizations, NGOs, and academia. It was organized partly in response to numerous representations to UNHCR from the shipping industry seeking assistance ‘in bolstering the time-honoured tradition of rescue of persons in distress at sea against what were presented as very serious incursions’,470 and also to clarify State responsibilities on rescue. Representatives broadly agreed that rescue-at-sea is a predominantly humanitarian issue, and that ‘rescue and alleviation of distress the first and absolute imperative, regardless of who the people are and how they came to be where they are’.471 They noted that the ship’s captain ‘has the right to expect the assistance of coastal States with facilitation and completion of the rescue, which occurs only when the persons are landed somewhere or otherwise delivered to a safe place’.472 Furthermore, it was observed that a non-State vessel is not an appropriate location for the screening and categorization of asylum seekers, nor should such a vessel be used as a ‘floating detention centre’.473

(p. 283) Though acknowledging the gaps in international maritime and refugee law on the appropriate place for disembarkation and the States responsible for follow-up action and solutions, the experts observed that international law more generally provides a framework and ‘indicators’ for how such issues might be resolved.474 Human rights principles were identified as ‘an important point of first reference’, since they apply to all persons irrespective of their nationality or status and stipulate certain standards and needs that must be respected at all times.475

UNHCR observed in its 2002 Note on International Protection that certain ‘highly publicized incidents’ in the past year, including that of the Tampa, highlighted the ‘problem of access to territory and procedures for those arriving by sea’. The refusal by some States to disembark rescued persons or even to come to their rescue in the first place was described as a ‘serious problem’, while other States were commended for their commitment to the ‘accepted maritime practice of permitting sometimes larger numbers of people, rescued for instance in the Mediterranean, to disembark on their territory’.476 In the Agenda for Protection, UNHCR set out its aim ‘to seek to reach common understandings [with States and other stakeholders] on responsibilities in the context of rescue at sea of asylum-seekers and refugees, including with regard to rescue itself, the disembarkation of those rescued and the solutions to be pursued’.477 In furtherance of this goal, an inter-agency review group was established under the auspices of the IMO.478 Its first meeting was held in July 2002 with representatives of the UN Division for Ocean Affairs and the Law of the Sea, UNHCR, the UN Office for Drug Control and Crime Prevention, and Office of the UN High Commissioner for Human Rights, the International Organization for Migration, and the IMO Secretariat. It agreed to review the safety of Life at Sea (SOLAS) and Search and Rescue (SAR) Conventions regarding the treatment of persons rescued at sea.

In May 2004, in response to post-Tampa discussions,479 the SAR and SOLAS Conventions were amended to impose—for the first time—an obligation on States to ‘cooperate and coordinate’ to ensure that ships’ masters are allowed to disembark rescued persons to a place of safety,480 irrespective of the nationality or (p. 284) status of those rescued,481 and with minimal disruption to the ship’s planned itinerary (implying that disembarkation should occur at the nearest coastal State—UNHCR’s favoured approach). The amendments make clear that a ship’s master has the sole discretion to make decisions which, in his or her professional judgement, are necessary for the safety of life at sea, including matters pertaining to rescue, treatment and care of those rescued, and where they should be landed. Section 2 of the 1965 Convention on Facilitation of Maritime traffic has consequently also been amended to require public authorities to facilitate the arrival and departure of ships engaged in rescuing distressed persons at sea in order to provide a place of safety for such persons.482

While this helpfully clarifies States’ responsibilities, the broader international protection regime, comprising refugee law, human rights law, and more generally applicable rules informed by the principle of good faith, in any case provide a normative and institutional framework for solutions. Furthermore, the very nature of the international protection regime is premised on States not acting unilaterally and in their own self-interest. UNHCR has repeatedly described the Tampa incident as a break or crack in the ‘time-honoured tradition of rescue at sea’, characterizing it as an aberration in State practice rather than indicative of a new rule.483 No other State has formally supported the Australian position, and in 2003, the Executive Committee adopted a Conclusion on protection safeguards in interception measures, recalling the duty of States and ships’ masters ‘to ensure the safety of life and to come to the aid of those in distress or in danger of being lost at sea’.484 The Australian approach is therefore inconsistent with the general international consensus on rescue-at-sea. While the gaps in international law provide room for competing interpretations based on conflicting State interests, the Australian view is at odds with State practice generally. The Tampa incident has, ironically, inspired a reaffirmation of the rescue-at-sea principles developed during the Indo-China exodus, and a buttressing of soft law on the issue by the international community.

Footnotes:

1  Historically, many bilateral agreements have institutionalized the practice; see the ‘conventions de prise en charge à la frontière’ discussed in Batiffol and Lagarde, Droit international privé (5th edn., 1970) i.198; and the ‘Übernahme-’ or ‘Schubabkommen’ discussed in Schiedermair, Handbuch des Ausländerrechts der Bundesrepublik Deutschland, (1968), 178, 227–30. For their more modern counterparts, see UNHCR, ‘Overview of Re-Admission Agreements in Central Europe’, (Sept. 1993); Inter-Governmental Consultations, ‘Working Paper on Readmission Agreements’, (Aug. 1994); van Selm, J., ‘Access to Procedures: “Safe Third Countries”, “Safe Countries of Origin” and “Time Limits”’ (Global Consultations Background Paper, 2001), section 1.A.7; Legomsky, S. H., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, 15 IJRL 567 (2003).

2  Goodwin-Gill, G. S., International Law and the Movement of Persons between States, (1978), 143, n. 2.

3  See, for example, 6 BDIL, 53–4, 64–5.

4  Under a 1928 arrangement (89 LNTS No. 2005), States had adopted a recommendation (no. 7), ‘that measures for expelling foreigners or for taking such other action against them be avoided or suspended in regard to Russian and Armenian refugees in cases where the person concerned is not in a position to enter a neighbouring country in a regular manner’. The recommendation was not to apply to a refugee who had entered a State in intentional violation of national law.

5  159 LNTS No. 3663; official text in French.

6  Art. 4, Provisional Arrangement concerning the Status of Refugees coming from Germany, 1936: 171 LNTS No. 3952; official text in English and French. The arrangement was signed by seven States; the United Kingdom excluded refugees subject to extradition proceedings from the ambit of art. 4, and likewise, for most purposes, refugees admitted for a temporary visit or purpose. See also art. 5, Convention concerning the Status of Refugees coming from Germany, 1938: 192 LNTS No. 4461; official texts in English and French. The Convention was ratified by only three States; the United Kingdom repeated its 1936 reservations.

7  The 1938 Convention substituted ‘measures of expulsion or reconduction … ’

8  The 1936 arrangement read: ‘refugees shall not be sent back across the frontier of the Reich’; the 1938 Convention provided that States parties ‘undertake’ not to reconduct refugees to German territory.

9  Kiss notes, for example, that in 1939 France admitted 400,000 refugees from Spain in just ten days: Répertoire de la pratique française en droit international public, (1966), vol. 4, 433–5.

10  UNGA res. 8(1), 12 Feb 1946, para. (c)(ii).

11  On IRO and post Second World War practice, see Marrus, M. R., The Unwanted: European Refugees from the First World War through the Cold War (2nd edn., 2002); Rystad, G., ed., The Uprooted: Forced Migration as an International Problem in the Post-War Era, (1990); Skran, C., Refugees in Inter-War Europe: The Emergence of a Regime, (1995). State practice of the immediate post-war period, however, is somewhat inconclusive. Writing in 1954, Weis found that refoulement was rare, save ‘in the case of some Russians and Ukrainians covered by certain wartime agreements’: Weis, P., ‘The International Protection of Refugees’, 48 AJIL 193, 196 (1954). The later release of relevant documents to public scrutiny showed the full extent of a forcible repatriation policy which meant death or horrific treatment for well over two million, by no means all of them covered by those wartime agreements: see Tolstoy, N., Victims of Yalta (1977, rev. edn. 1979); Bethell, N., The Last Secret (1974); also, Corsellis, J. & Ferrar, M., Slovenia 1945: Memories of Death and Survival, (2005).

12  ECOSOC res. 248(IX)B, 8 Aug. 1949.

13  The Committee decided to focus on the refugee, and duly produced a draft convention. In August 1950, ECOSOC returned the draft for further review, before consideration by the General Assembly, and finalized the Preamble and refugee definition. In December 1950, the General Assembly decided to convene a Conference of Plenipotentiaries to complete the draft: UNGA res. 429(V), 14 Dec. 1950. See generally Report of the Ad hoc Committee on Refugees and Stateless Persons, Second Session: UN doc. E/1850. The Committee had been renamed in the interim. The most important United Nations documents from this period are usefully collected in Takkenberg, A. and Tahbaz, C. C., The Collected Travaux Préparatoires of the 1951 Convention relating to the Status of Refugees, 3 volumes, (1988). The full travaux préparatoires may be found online at <http://www.unhcr.org/research.html> and in UNHCR, RefWorld, DVD-CD Rom, (15th edn., 2006).

14  UN doc. E/1850, para. 30. Cf. Louis Henkin, United States delegation, ‘Whether it was a question of closing the frontier to a refugee who asked admittance, or of turning him back after he had crossed the frontier, or even of expelling him after he had been admitted to residence in the territory, the problem was more or less the same … Whatever the case might be … he must not be turned back to a country where his life or freedom could be threatened. No consideration of public order should be allowed to overrule that guarantee, for if the State concerned wished to get rid of the refugee at all costs, it could send him to another country or place him in an internment camp’: Ad hoc Committee on Statelessness and Related Problems: UN doc. E/AC.32/SR.20, paras. 54–5 (1950). The Israeli delegate reiterated that the prohibition on return ‘must, in fact, apply to all refugees, whether or not they were admitted to residence; it must deal with both expulsion and non-admittance’; he concluded that ‘[t]he Committee had already settled the humanitarian question of sending any refugee whatever back to a territory where his life or liberty might be in danger’, ibid., paras. 60–1. The British delegate also concluded from the discussion that the notion of refoulement ‘could apply to … refugees seeking admission’: UN doc. E/AC.32/SR.21, para. 16 (1950).

15  The change in the international situation between the meeting of the Ad Hoc Committee in Aug. 1950 and the Conference in July 1951 is usually cited as the reason for the introduction of exceptions; see UN doc. A/CONF.2/SR.16, 8 (1951) (views of the United Kingdom).

16  The Ad hoc Committee reported in its comments that the draft article referred ‘not only to the country of origin but also to other countries where the life or freedom of the refugee would be threatened’: see UN doc. E/AC.32/SR.20, 3 (1950), for the UK’s proposal and views; UN doc. E/1618, E/AC.32/5, 61, for the Ad hoc Committee’s comment. Sweden proposed a more specific rule against the return of a refugee to a country ‘where he would be exposed to the risk of being sent to a territory where his life or freedom’ would be threatened, for example, by extradition or expulsion: see UN docs. A/CONF.2/70, A/CONF.2/SR.16, 9 (1951). This was withdrawn, on the assumption that art. 33 covered at least some of the ground. The Danish representative noted that a government expelling a refugee to an intermediate country could not foresee how that State might act. But if expulsion presented a threat of subsequent forcible return to the country of origin, then the life or liberty of the refugee would be endangered, contrary to the principle of non-refoulement: see UN doc. A/CONF.2/SR.16, 9f. In Re Musisi [1987] 2 WLR 606, at 620, the UK House of Lords struck down a decision to deny asylum to a Ugandan refugee and return him to Kenya, his country of first refuge. The reasons given by the Secretary of State indicated that he had failed to take into account, or to give sufficient weight to, a relevant consideration, namely, that on a number of occasions Kenya had handed over Ugandan refugees to the Ugandan authorities.

17  Executive Committee Conclusion No. 6 (1977), para. (c), Executive Committee Conclusion No. 79 (1996), para. (j), Executive Committee Conclusion No. 81 (1997), para. (i), Executive Committee Conclusion No. 82 (1997), para. (d)(i) reaffirm the principle of non-refoulement, irrespective of formal recognition of refugee status. The 1979 Arusha Conference on the Situation of Refugees in Africa observed, among other matters, that refugee status procedures might be impractical in the case of large-scale movements of asylum seekers in Africa, and that special arrangements might be necessary. As a minimum, however, the conference recommended that the protection of individuals by virtue of the principle of non-refoulement be ensured: UN doc. A/AC.96/INF.158 at 9; see also Executive Committee Conclusion No. 19 (1980), para. (a).

18  See above, Ch. 2, s. 8 and below, Ch. 6.

19  UN doc. A/CONF.2/SR.16, 6 (1951); see also Weis, P., ‘Legal Aspects of the Convention of 28 July 1951 relating to the Status of Refugees,’ 30 BYIL 478, 482 (1953).

20  See below, n. 22.

21  UN doc. A/CONF.2/SR.16, 10 (1951). On extradition and non-refoulement, see below, s. 3.3.3.

22  For the Dutch delegate’s comments, see UN doc. A/CONF.2/SR.35 at 21 (1951): Baron van Boetzelaer of the Netherlands, ‘recalled that at the first reading the Swiss representative had expressed the opinion that the word “expulsion” related to a refugee already admitted into a country, whereas the word “return” (“refoulement”) related to a refugee already within the territory but not yet resident there … At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation … In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33 … There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on the record’ (Emphasis added.) Earlier, the Dutch delegate explained that his concern was that of ‘a country bordering on others … about assuming unconditional obligations as far as mass influxes of refugees were concerned … unless international collaboration was sufficiently organized to deal with such a situation’: UN doc. A/CONF.2/SR.16, 11 (emphasis added). The Dutch comments are thus neither an ‘official’ interpretation of the Convention, nor a binding limitation on the plain language.

23  Cf. Robinson: Commentary, (1953), 163—art. 33 ‘concerns refugees who have gained entry into the territory of a contracting State, legally or illegally, but not refugees who seek entrance into this territory’; Weis, P.: ‘Legal Aspects of the Convention of 28 July 1951 relating to the Status of Refugees’, 30 BYIL 478 (1953) at 482–3non-refoulement ‘leads the way to the adoption of the principle that a State shall not refuse admission to a refugee, i.e. it shall grant him at least temporary asylum … if non-admission is tantamount to surrender to the country of persecution’; (High Commissioner for Refugees) Schnyder, F., ‘Les aspects juridiques actuels du problème des réfugiés’, Hague Recueil (1965-I) 339, at 381—the principles of non-rejection and temporary asylum are becoming more and more recognized; (High Commissioner for Refugees) Sadruddin Aga Khan, ‘Legal Problems Relating to Refugees and Displaced Persons’, Hague Recueil (1976-I) 287, at 318–22—concluding that States do not accept the rule of non-rejection. See also Weis, P., ‘Territorial Asylum’, 6 Indian Journal of International Law (1966) 173, 183—arguing for extension of the principle to non-rejection at the frontier, otherwise protection becomes dependent on ‘the fortuitous circumstance’ that the refugee has successfully entered State territory. Grahl-Madsen consistently argued that art. 33 is limited to those present, lawfully or unlawfully, in the territory of contracting States, that protection depends upon having ‘set foot’ in that territory: The Status of Refugees in International Law, (1966), vol. 2, 94–9; Territorial Asylum, (1980), 40ff. In the most recent and comprehensive analysis, Lauterpacht & Bethlehem argue that non-refoulement encompasses non-rejection at the frontier, noting that: ‘where States are not prepared to grant asylum to persons who have a well-founded fear of persecution, they must adopt a course that does not amount to refoulement. This may involve removal to a safe third country or some other solution such as temporary protection or refuge. No other analysis, in our view, is consistent with the terms of Article 33(1)’: Lauterpacht, E. & Bethlehem, D., ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Feller, E., Türk, V. and Nicholson, F., eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), 113, para. 76 (hereafter, Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’).

24  See, for example, the elaborations of Lord Denning in R. v. Governor of Brixton Prison, ex p. Soblen [1963] 2 QB 243; also the United States decisions cited by Pugash, J. Z., ‘The Dilemma of the Sea Refugee: Rescue without Refuge,’ 18 Harv. ILJ 577, at 592ff (1977); A Study on Statelessness (UN doc. E/1112 and Add. 1, 60 (1949)) defines reconduction as ‘the mere physical act of ejecting from the national territory a person who has gained entry or is residing therein irregularly’ and expulsion as ‘the juridical decision taken by the judicial or administrative authorities whereby an individual is ordered to leave the territory of the country’. The study observes that terminology varies, but for its purposes the term refoulement (reconduction) was not used to signify the act of preventing a foreigner present at the frontier from entering the national territory. See below, s. 3.3.2 (‘International zones’).

25  Noll, G., ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’ 17 IJRL 542, 548 (2005).

26  Cf. arts. 31 (1), (2), 1969 Vienna Convention on the Law of Treaties.

27  In 1953 the French Minister of the Interior, advising the Parliament that asylum seekers from Spain were still arriving, gave assurances that none was refused admission; all were allowed to remain pending determination of refugee status, when those not recognized were invited to return to their country: Kiss, Répertoire de la pratique française, vol. 4, 434–5. In 1956, following the Hungarian crisis, some 180,000 were granted immediate first asylum in Austria, and a further 20,000 in Yugoslavia: UNHCR, A Mandate to Protect and Assist Refugees, (1971), 67–77.

28  R. (European Roma Rights Centre and others) v. Immigration Officer at Prague Airport (UNHCR Intervening) [2005] 2 AC 1, [2004] UKHL 55, para. 26 (Lord Bingham).

29  Human Rights Committee, General Comment No. 31 (2004), para. 12. The Committee’s comments and those of other treaty-monitoring bodies are collected in UN doc. HRI/GEN/Rev.8 (8 May 2006).

30  Ibid., para. 10; see also Human Rights Committee, General Comment No. 15 (1986).

31  Human Rights Committee, General Comment No. 31 (2004), para. 12; see also Human Rights Committee, General Comment No. 20 (1992), para. 9.

32  Art. 4, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Convention of 12 August 1949).

33  1001 UNTS 45; below Annexe 2, No. 1. In July 2004, the African Union Summit of Heads of State confirmed the OAU Convention’s continuing relevance.

34  OAS official Records, OEA/Ser.K/XVI/1.1.

35  OAS official Records, OEA/Ser.X/1. Treaty Series 34. See also art. 20, 1940 Montevideo Treaty on International Penal Law; art. 3, 1954 Caracas Convention on Territorial Asylum (‘No State is under the obligation to surrender to another State, or to expel from its own territory, persons persecuted for political reasons or offenses’); below, Annexe 2, No. 3.

36  Other relevant provisions include art. 4(5), 1981 Inter-American Convention on Extradition; art. 3(2), 1957 European Convention on Extradition; below, Annexe 2, No. 10.

37  From the 1960s, the European Commission on Human Rights interpreted art.3 ECHR50 as encompassing the principle of non-refoulement: see, for example, X v. Belgium (984/61), 29 May 1961, 6 CD 39–40; X v. Federal Republic of Germany (1963) 6 Yearbook 462, 480; Recommendation 434 (1965) concerning the Granting of the Right of Asylum to European Refugees; see also Kirkwood v. United Kingdom (1984) 6 EHRR 373; Chahal v. United Kingdom (1996) 23 EHRR 413. See further below, Ch. 6

38  Soering v. United Kingdom (1989) 11 EHRR 439, para. 91.

39  Chahal, above note, para. 80. See also Cruz Varas v. Sweden (1991) 14 EHRR 1; Vilvarajah v. United Kingdom (1991) 14 EHRR 248; D v. United Kingdom (1997) 24 EHRR 423; HLR v. France (1997) 26 EHRR 29; Dehwari v. Netherlands (2000) 29 EHRR CD 74; Hilal v. United Kingdom (2001) 33 EHRR 31. These decisions, based on Chahal, are being challenged in the European Court of Human Rights by Lithuania, Portugal, Slovakia, and the United Kingdom (as interveners) in the matter of Ramzy v. The Netherlands: see ‘Observations of the Governments of Lithuania, Portugal, Slovakia and the United Kingdom intervening in Application No. 25424/05: Ramzy v. The Netherlands’ (22 Nov. 2005).

40  Art. 3 ECHR50 has been interpreted as an obligation to afford humanitarian assistance in cases of gross violations of human rights by other States, although it has been argued that this gives rise to no general right of ‘temporary refuge’, and that the article’s focus on conduct of particular gravity attracts a heavy evidential burden (‘substantial grounds to fear’, ‘actual concrete danger’): Hailbronner, K., ‘Non-refoulement and “Humanitarian” Refugees: Customary International Law or Wishful Legal Thinking?’ 26 Virg J.I.L. 857 (1986); also published in Martin, D., The New Asylum-Seekers, (1988). So far as this is indeed borne out by the case law, art. 3 may fail to offer any additional protection to the refugee, while it nevertheless strengthens the basic principle of non-return to certain specifically threatening situations. See Ch. 6 below on complementary protection.

41  Chahal (1996) 23 EHRR 413, para. 80; Soering (1989) 11 EHRR 439, para. 88.

42  Art. 15, Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted [2004] O.J. L304/12; for text see below, Annexe 2, No. 19.

43  Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN doc. HCR/MMSP/2001/09 (16 Jan. 2002), para. 4, contained in UNHCR, Agenda for Protection.

44  Art. 3(1); below, Annexe 1, No. 6. Note that art. 3(2) provides that an exception may be made to the basic principle, ‘only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons’. In such circumstances, the State contemplating such exception, ‘shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or otherwise, of going to another State’: art. 3(3).

45  Report of the Eighth Session of the Asian-African Legal Consultative Committee, Bangkok (8–17 Aug. 1966), 355 A revised text was adopted in 2001; see below, n. 52.

46  Res. (67) 14 on Asylum to Persons in Danger of Persecution, 29 Jun. 1967; cf. art. II(3) OAUR69.

47  Rec. No. R (84) 1, Recommendation on the Protection of Persons satisfying the Criteria in the Geneva Convention who are not Formally Recognized as Refugees.

48  Rec. No. R (98) 15 of the Committee of Ministers to Member States on the Training of officials Who First Come into Contact with Asylum Seekers, in Particular at Border Points.

49  Cartagena Declaration, Conclusions and Recommendations, III, 5; below, Annexe 2, No. 7.

50  Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America (Mexico City, 16 Nov. 2004). Note also the Declaration adopted on the 10th anniversary of the Cartagena Declaration: San Jose Declaration on Refugees and Displaced Persons (San Jose, 5–7 Dec. 1994).

51  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 10.

52  Final Text of the Asian-African Legal Consultative Organization’s 1966 Bangkok Principles on Status and Treatment of Refugees, 40th Session, New Delhi (adopted 24 June 2001); see also RES/40/3 (24 June 2001): <http://www.aalco.org>.

53  San Remo Declaration on the Principle of Non-Refoulement, (Sept. 2001).

54  Ibid., ‘Explanatory Note on the Principle of Non-Refoulement of Refugees as Customary International Law’.

55  International Law Association, Res. 6/2002 (Apr. 2002).

56  See also UNHCR’s statement that: ‘The entry into force in January 2004 of the Protocol establishing the African Court on Human and Peoples’ Rights is particularly welcome in view of the many linkages between human rights and refugee issues’: UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 20.

57  UNGA res. 44/162, 15 Dec. 1989, para. 5. See also ECOSOC res. 1989/65, 24 May 1989, recommending that the principles annexed to the resolution be taken into account and respected by governments.

58  UNGA res. 47/133, 18 Dec. 1992, adopted without a vote. Art. 8(2) reproduces art. 3(2) CAT84.

59  Protocol to Prevent, Suppress and Punish trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, UNGA res. 55/25 (15 Nov. 2000), art. 14(1); Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, UNGA res. 55/25 (15 Nov. 2000), art. 19(1).

60  CETS No. 197 (opened for signature 16 May 2005). The treaty will enter into force when it has been ratified by ten States, of which at least eight must be Member States of the Council of Europe.

61  UNGA res. 32/67 (8 Dec. 1977), para 5(c); UNGA res. 33/26 (29 Nov. 1978), para. 6; UNGA res. 34/60 (29 Nov. 1979), para. 3(a); UNGA res. 35/41 (25 Nov. 1980), para. 5(a); UNGA res. 36/125 (14 Dec. 1981), para. 5(a); UNGA res. 37/195 (18 Dec. 1982), para. 2; UNGA res. 38/121 (16 Dec. 1983), para. 2; UNGA res. 39/140 (14 Dec. 1984), para. 2; UNGA res. 40/118 (13 Dec. 1985), para. 2; UNGA res. 41/124 (4 Dec. 1986), para. 2; UNGA res. 42/109 (7 Dec. 1987), para. 1; UNGA res. 43/117 (8 Dec. 1988), para. 3; UNGA res. 44/137 (15 Dec. 1989), para. 3; UNGA res. 45/140 (14 Dec. 1990), para. 3; UNGA res. 46/106 (16 Dec. 1991), para. 4; UNGA res. 47/105 (16 Dec. 1992), para. 4; UNGA res. 48/116 (20 Dec. 1993), para. 3; UNGA res. 49/169 (23 Dec. 1994), para. 4; UNGA res. 50/152 (21 Dec. 1995), para. 3; UNGA res. 51/75 (12 Dec. 1996), para. 3; UNGA res. 52/103 (12 Dec. 1997), para. 5; UNGA res. 52/132 (12 Dec. 1997), para. 16; UNGA res. 53/125 (9 Dec. 1998), para. 5; UNGA res. 54/146 (17 Dec. 1999), para. 6; UNGA res. 55/74 (4 Dec. 2000), para. 6; UNGA res. 56/137 (19 Dec. 2001), para. 3; UNGA res. 57/187 (18 Dec. 2002), para. 4; UNGA res. 58/151 (22 Dec. 2003), para. 3; UNGA res. 59/170 (20 Dec. 2004), para. 3; UNGA res. 60/129 (16 Dec. 2005), para. 3.

62  CHR res. 2005/48 ‘Human Rights and Mass Exoduses’, para. 7; CHR res. 2005/80 ‘Protection of Human Rights and Fundamental Freedoms while countering Terrorism’, para. 5; CHR res. 2003/52 ‘Human Rights and Mass Exoduses’, para. 6; CHR res 2000/55 ‘Human Rights and Mass Exoduses’, para. 6; CHR res. 1998/49 ‘Human Rights and Mass Exoduses’, para. 6; CHR res. 1997/75 ‘Human Rights and Mass Exoduses’, para. 1.

63  See the following resolutions of the Sub-Commission: E/CN.4/Sub.2/Res/2002/23, paras. 1, 2; E/CN.4/Sub.2/Res/2001/16, paras. 1, 2; E/CN.4/Sub.2/Res/2000/20, para. 1; E/CN.4/Sub.2/Res/1997/29, para. 6; E/CN.4/Sub.2/Res/1996/9, para. 4.

64  See the following reports: E/CN.4/2004/7, paras. 64–5; E/CN.4/2003/85, paras. 22–5; E/CN.4/2004/76/Add.1, paras. 1–9, 89–91, 123–35; E/CN.4/2003/85/Add.1, paras. 1–4, 95–7, 148, 261; E/CN.4/2001/83, paras. 77–8; also E/CN.4/2004/56; E/CN.4/2003/68/Add.1; E/CN.4/2002/76/Add.1; E/CN.4/2001/66; E/CN.4/2000/9; E/CN.4/1999/61; E/CN.4/1998/38/Add.1; E/CN.4/1997/7/Add.1; E/CN.4/1996/35/Add.1; E/CN.4/1995/34; E/CN.4/1994/31.

65  Commission on Human Rights, ‘Civil and Political Rights, including the Questions of Disappearances and Summary Executions: Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, Philip Alston’, UN doc. E/CN.4/2005/7 (22 Dec. 2004), para. 19(g).

66  On which see further below, Ch. 8, s. 1.1.1.

67  Executive Committee Conclusion No. 6 (1977). Importantly, this Conclusion was adopted after the 1977 Conference on Territorial Asylum. States’ failure to agree on a Convention on Territorial Asylum was not due to any rejection of the principle of non-refoulement and its extension to non-rejection at the frontier, as was erroneously suggested by the UK Court of Appeal in R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2003] EWCA Civ 666, [2004] QB 811, para. 44 (Simon Brown L.J.) and apparently accepted by Lord Bingham in R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 AC 1, [2004] UKHL 55, para. 17, but rather because States were not prepared at that time to accept an individual right to asylum.

68  Executive Committee Conclusion No. 85 (1998) and No. 99 (2004).

69  The Human Rights Committee has noted that although ICCPR66 does not recognize the right of aliens to enter or reside in the territory of a State party, ‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’: General Comment No. 15 (1986).

70  Hathaway, J. C., The Rights of Refugees under International Law, (2005), 301 (hereafter, Hathaway, Rights of Refugees, (2005)).

71  See below, Ch. 7.

72  Executive Committee Conclusion No. 19 (1980).

73  Executive Committee Conclusion No. 22 (1981).

74  Report of the 33rd Session: UN doc. A/AC.96/614, para. 70.

75  See, for example, Executive Committee Conclusions Nos. 3 (1977); 11 (1978); 14 (1979); 16 (1980); 21 (1981); 25 (1982); 33 (1984); 41 (1986); 46 (1987); 50 (1988); 61 (1990); 68 (1992); 71 (1993); 74 (1994); 79 (1996); 85 (1998); 89 (2000); 102 (2005).

76  UN doc. A/AC.96/728 (2 Aug. 1989), para. 19.

77  Executive Committee Conclusion No. 55, Report of the 40th Session: UN doc. A/AC.96/737 (19 Oct. 1989), para. 22(d).

78  Executive Committee Conclusion No. 58 (1989), paras. (f), (g).

79  Executive Committee Conclusion No. 65 (1991), Report of the 42nd Session: UN doc. A/AC.96/783 (21 Oct. 1991), para. 21(c), (j).

80  Executive Committee Conclusion No. 68 (1992), Report of the 43rd Session: UN doc. A/AC.96/804, (15 Oct. 1992), para. 21(e), (f), (r). See also Executive Committee Conclusions No. 74 (1994), Report of the 45th Session: UN doc. A/AC.96/839, para. 19; No. 77 (1995), Report of the 46th Session: UN doc. A/AC.96/860, para. 19.

81  Executive Committee Conclusion No. 81 (1997), para. (i); Executive Committee Conclusion No. 82 (1997), para. (d)(i); see also UNHCR, ‘Note on International Protection’ UN doc A/AC.96/882 (2 Jul. 1997), para. 17.

82  Executive Committee Conclusion No. 103 (2005), para. (m). Complementary protection is discussed in Ch. 6 below. See also Executive Committee Conclusion No. 99 (2004), which refers to the importance of respecting the ‘fundamental principle of non-refoulement’ in the broader context of persecution, generalized violence, and violations of human rights causing and perpetuating displacement.

83  See Sztucki, J., ‘The Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme’, 1 IJRL 285 (1989); Lewis, C., ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’, 17 IJRL 67 (2005).

84  UN doc. A/AC.96/SR.415, para. 16 (1987).

85  Mr Noirfalisse (Belgium): UN doc. A/AC.96/SR.552, para. 50 (2001).

86  Mr Mponda (Observer for Malawi): UN doc. A/AC.96/SR.431, para. 32 (1988).

87  ‘The refoulement of refugees must not be allowed to occur under any circumstances:’ Mr Ceska (Austria): UN doc. A/AC.96/SR.439, para. 9 (1989).

88  Mr de Courten (International Committee of the Red Cross): UN doc. A/AC.96/SR.522, para. 8 (1997); Ms Nielsen (Switzerland): UN doc. A/AC.96/SR.541, para. 13 (1999); on flexibility of the Convention in mass influx, see remarks of Mrs Kunadi (India): UN doc. A/AC.96/SR.545, para. 6 (2000); Mr Shen (China): UN doc. A/AC.96/SR.563, para. 17 (2002).

89  Mrs Lafontant (USA): UN doc. A/AC.96/SR.437, para. 49 (1989). Mrs Lafontant had succeeded Jonathan Moore, and was Ambassador-at-Large and US Coordinator for Refugee Affairs.

90  Mr de Sa Barbuda (Brazil): UN doc. A/AC.96/SR.475, para. 83 (1992), commenting on temporary protection and its eventual termination as a possible alternative to asylum in mass influx situations.

91  Mr Yavuzalp (Turkey): UN doc. A/AC.96/SR.418, para. 74 (1987).

92  Mr Demiralp (Turkey): UN doc. A/AC.96/SR.442, para. 92 (1989); see also Mr Cem Duna (Turkey): UN doc. A/AC.96/SR.456, para. 7 (1991). On several occasions, the Turkish representatives have both upheld the fundamental character of non-refoulement while simultaneously supporting the right of the asylum seeker to choose in which country to seek asylum, thereby staking a claim for a form of ‘natural’ burden-sharing. On ‘mass influx’ see further below, Ch. 6, s. 6.

93  Mr Atkan (Turkey): UN doc. A/AC.96/SR.468, para. 18 (1991).

94  See generally, Adelman, H., ‘Humanitarian Intervention: The Case of the Kurds’, 4 IJRL 4 (1992). Today, faced with an imminent refugee exodus, States are more likely to consider humanitarian intervention or containment, as in Kosovo, rather than waiting for people to flee. In 2004, the High Commissioner welcomed the Sudanese government’s agreement to the idea of ‘safe havens’ for the internally displaced, since it indicated some commitment to the peace process; however, for many persons, ‘such areas were more like prisons than safe areas’: Mr Lubbers (High Commissioner): UN doc. A/AC.96/SR.581, para. 6 (2004).

95  Although Turkey’s formal reservations have focused on mass influx, its record on individual cases has not always been perfect; see Amnesty International, ‘Turkey: Selective Protection. Discriminatory Treatment of Non-European Refugees and Asylum Seekers’ (1994); Kirişçi, K., ‘Asylum Seekers and Human Rights in Turkey’, 10 Neth.Q.H.R. 447 (1992). Note, however, that Turkey maintains the geographical limitation to its obligations under the 1951 Convention/1967 Protocol.

96  See above, Ch. 3, s. 5.6.1. See Januzi v. Secretary of State for the Home Department [2006] 2 WLR 397 for discussion of the application of the internal flight alternative. Coleman argues that returns to safe havens in Croatia in 1992 constituted refoulement because they were effected before refugee status determination could occur: Coleman, N., ‘Non-Refoulement Revised: Renewed Review of the Status of the Principle of Non-Refoulement as Customary International Law’, 5 EJML 23, 29 (2005) (hereafter, Coleman, ‘Non-Refoulement Revised’).

97  Mr Hadorn (Switzerland): UN doc. A/AC.96/SR.430, para. 42 (1988). For example, in 1997, Italy argued that the majority of Albanian asylum seekers that had fled to Italy had not qualified for asylum under the 1951 Convention, but the Italian government ‘had decided to admit them temporarily on humanitarian grounds’: Mr Baldocci (Italy): UN doc. A/AC.96/SR.518, para. 12 (1997).

98  Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/758, (2 Oct. 1990), para. 29.

99  Ms Oakley (United States): UN doc. A/AC.96/SR.507, para. 60 (1996).

100  Ms Andersson (Sweden): UN doc. A/AC.96/SR.508, para. 5 (1996).

101  Mr Zahran (Observer for Egypt): UN doc. A/AC.96/SR.511, para. 6 (1996).

102  Mr de Palichy (Belgium): UN doc. A/AC.96/SR.527, para. 40 (1998).

103  Mr Besancenot (France): UN doc. A/AC.96/SR.527, para. 44 (1998).

104  Mr Manning (United Kingdom): UN doc. A/AC.96/SR.527, para. 9 (1998). For a review of European State practice with respect to non-Convention refugees, see Bouteillet-Paquet, D., ‘Subsidiary Protection: Progress or Set-Back of Asylum Law in Europe? A Critical Analysis of the Legislation of the Member States of the European Union’ in Bouteillet-Paquet, D., ed., Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention? (2002).

105  For the United States, see: 8 CFR §208.16, 8 CFR §208.17; Canada: Immigration and Refugee Protection Act 2001, s. 97(1); EU: the Qualification Directive 2004 (transposition required by 10 Oct. 2006; for text, see below, Annexe 2, No. 19).

106  Australia and New Zealand are notable exceptions among western States, having no codified form of complementary protection. However, New Zealand’s non-refoulement obligations under arts. 6 and 7 ICCPR66 and art. 3 CAT84 are reflected in ss. 8 and 9 of the Bill of Rights Act 1990 (see the government’s acknowledgement of this in Attorney-General v. Zaoui [2005] NZSC 38, para. 76), and a codified system of complementary protection is proposed: New Zealand Dept. of Labour, ‘Immigration Act Review: Discussion Paper’, (Apr. 2006), s. 14. In Australia, Senator Andrew Bartlett of the Australian Democrats introduced a private member’s bill into Parliament on 13 Sept. 2006, entitled the Migration Legislation Amendment (Complementary Protection Visa) Bill 2006, but it is unlikely that there will be sufficient support for it to pass.

107  Mr Ruddock (Australia): UN doc. A/AC.96/SR.507, para. 71 (1996).

108  Mr Wrench (United Kingdom): UN doc. A/AC.96/SR.430, para. 53 (1988). This interpretation was reiterated the following year; see UN doc. A/AC.96/SR.442, para. 51 (1989).

109  Mr Strassera (Argentina): UN doc. A/AC.96/SR. 442, para. 46 (1989).

110  UNHCR, ‘Note on International Protection’ UN doc. A/AC.96/951, para. 20.

111  US Committee for Refugees and Immigrants, World Refugee Survey, (2005).

112  US Committee for Refugees and Immigrants, World Refugee Survey, (2003).

113  Mr Bösenbacher (Hungary): UN doc. A/AC.96/SR.546, para. 18 (2000); Mr Perez-Villanueva (Spain): UN doc. A/AC.96/SR.546, para. 44 (2000).

114  Mr Knothe (Poland): UN doc. A/AC.96/SR.545, para. 54 (2000).

115  Mr Bruni (Italy): UN doc. A/AC.96/SR.581, para. 76 (2004).

116  Mr Sesinyi (Observer for Botswana): UN doc. A/AC.96/SR.529, para. 24 (1998).

117  Mrs Betancourt (Venezuela): UN doc. A/AC.96/SR.540, para. 61 (1999).

118  Ibid..540, para. 63.

119  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/882 (2 Jul. 1997), para. 14. Norway took up the issue with the IMO, UNHCR, and in the UN General Assembly: UN docs. GA/9980, GA 9981; IMO Circular Letter No. 2337 (31 Aug. 2001); Note No. 110 (2 Sept. 2001) to UNHCR.

120  Mr Skogmo (Norway): UN doc. A/AC.96/SR.549, para. 8 (2000).

121  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 25; see also UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/975 (2 Jul. 2003), para. 13.

122  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 25.

123  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/951 (13 Sept. 2001), para. 11.

124  Ms Feller (UNHCR, Department of International Protection): UN doc. A/AC.96/SR.548, para. 78 (2000).

125  Mr Uluçevik (Turkey): UN doc. A/AC.96/SR.518, para. 72 (1997).

126  Mr Sungar (Turkey): UN doc. A/AC.96/SR.554, para. 36 (2001); see also Mr Sungar (Turkey): UN doc. A/AC.96/SR.563, para. 48 (2002).

127  Mr Lubbers (High Commissioner): UN doc. A/AC.96/SR.561, para. 22 (2002).

128  Ms Kunadi (India): UN doc. A/AC.96/SR.554, para. 38 (2001).

129  Kiley, S., ‘Tanzania closes border to 100,000 Rwanda refugees’, The Times, 1 Apr. 1995.

130  See above, nn. 93, 94 and accompanying texts.

131  Ms Tesfaye (Ethiopia): UN doc. A/AC.96/SR.529, para. 49 (1998).

132  Mr Mbaya (Democratic Republic of Congo): UN doc. A/AC.96/SR.519, para. 84 (1997).

133  Durieux and McAdam argue that denying the character of a flow may be counter-productive, since it may frustrate attempts at enlisting international solidarity, although the influxes from Indo-China, Bosnia, and Kosovo show that this is not always the case: Durieux, J.-F. & McAdam, J., ‘Non-Refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass influx Emergencies’, 16 IJRL 4, 7 (2004).

134  Mr Khatib (United Republic of Tanzania): UN doc. A/AC.96/SR.563, para. 30 (2002).

135  U Saw Tun (Observer for Myanmar): UN doc. A/AC.96/SR.556, para. 21 (2001).

136  U Zaw Tun (Observer for Myanmar): UN doc. A/AC.96/SR.547, para. 31 (2000).

137  U Saw Tun (Observer for Myanmar): UN doc. A/AC.96/SR.556, para. 21 (2001).

138  Mr Lohani (Observer for Nepal): UN doc. A/AC.96/SR.508, para. 30 (1996); Mr Thinley (Observer for Bhutan): UN doc. A/A.96/SR.510, paras. 96–97 (1996); see also Mr Kesang (Observer for Bhutan): UN doc. A/AC.96/SR.548, para. 7 (2000). For an academic analysis of the Bhutanese refugee situation, see Tang Lay Lee, ‘Refugees from Bhutan: Nationality, Statelessness and the Right to Return’, 10 IJRL 118 (1998); Saul, B., ‘Cultural Nationalism, Self-Determination and Human Rights in Bhutan’ 12 IJRL 321 (2000). For a long time, Côte d’Ivoire officially rejected the notion of ‘refugees’ and termed them ‘brothers in distress’: Mr N’Goran (Observer for Côte d’Ivoire): UN doc. A/A.96/SR.511, para. 47 (1996). Similarly, Nigeria refused to recognize Nigerian Ogoni refugees in Benin as such: Mrs Oko (Nigeria): UN doc. A/AC.96/SR.513, para. 18 (1996). Vietnam denied that certain of its nationals in China were ‘refugees’: Mr Le Lon Minh (Observer for Vietnam): UN doc. A/AC.96/SR.522, para. 76 (1997); Myanmar describes the majority of its nationals in Thailand as ‘economic migrants looking for better job opportunities and higher wages’: U Denzil Abel (Observer for Myanmar): UN doc. A/AC.96/SR.530, para. 37 (1998); U Zaw Tun (Observer for Myanmar): UN doc. A/AC.96/SR.547, para. 31 (2000).

139  Mr Lohani (Observer for Nepal): UN doc. A/AC.96/SR.508, para. 30 (1996).

140  See above, n. 84 and text. The concern of the United States to defend the principle of first asylum was motivated in particular by practices in South East Asia, where Indo-Chinese boat people were not infrequently denied access to coastal States, placed back on board ships returning to their country of origin, or towed out to sea, often with resulting loss of life.

141  Mr Kelley (USA): UN doc. A/AC.96/SR.442, paras. 78–9 (1989).

142  Ibid., paras. 80, 82.

143  Ibid., para. 81.

144  See further below, s. 3.3.1.

145  For discussion of the Tampa incident, see s. 4.3 below.

146  The meeting records, which are not a verbatim account of proceedings, do not indicate such a clear statement having been made, but note instead the US’ reference to States’ ‘legal and moral responsibility to protect persons in danger’. It may be that in discussion, the United States emphasized the moral nature of the responsibility rather than its binding legal nature.

147  Mr van Bernuth (International Council of Voluntary Agencies): UN doc. A/AC.96/SR.513, para. 2 (1996).

148  Ms Oakley (United States): UN doc. A/AC.96/SR.516, para. 53 (1997).

149  Mr Vergne Saboia (Brazil): UN doc. A/AC.96/SR.508, para. 34 (1996); Mr Abalo (Observer for Benin): UN doc. A/A.96/SR.511, para. 26 (1996); Ms Meng (China): UN doc. A/AC.96/SR.518, para. 51 (1997); Mr Uluçevik (Turkey): UN doc. A/AC.96/SR.518, para. 71 (1997); Mr van Wulfften Palthe (Netherlands): UN doc. A/AC.96/SR.526, para. 4 (1998); Ms Haaland Matlary (Norway): UN doc. A/AC.96/SR.526, para. 31 (1998); Mr Höynck (Germany): UN doc. A/AC.96/SR.526, para. 56 (1998); Mr Manning (United Kingdom): UN doc. A/AC.96/SR.527, para. 9 (1998); Ms Fahlén (Sweden): UN doc. A/AC.96/SR.527, para. 34 (1998); Mr Thlomeland (South Africa): UN doc. A/AC.96/SR.530, para. 56 (1998); Mr Irumba (Observer for Uganda): UN doc. A/AC.96/SR.532, para. 11 (1998); Mr Ruddock (Australia): UN doc. A/AC.96/SR.545, para. 10 (2000); Ms Klingvall (Sweden): UN doc. A/AC.96/SR.545, para. 19 (2000); Ms Negru (Observer for the Republic of Moldova): UN doc. A/AC.96/SR.547, para. 47 (2000); Mr Noirfalisse (Belgium): UN doc. A/AC.96/SR.552, para. 50 (2001); Mr Duque (Brazil): UN doc. A/AC.96/SR.555, para. 16 (2001); Mr Castrillon (Observer for Ecuador): UN doc. A/AC.96/SR.555, para. 52 (2001); U Saw Tun (Observer for Myanmar): UN doc. A/AC.96/SR.556, para. 21 (2001); Mr Prasad (India): UN doc. A/AC.96/SR.558, para. 3 (2001); Mr Chiaradia (Argentina): UN doc. A/AC.96/SR.562, para. 62 (2002); Mr Puri (India): UN doc. A/AC.96/SR.563, para. 61 (2002); Mr Rodríguez Cedeño (Venezuela): UN doc. A/AC.96/SR.563, para. 70 (2002); Mr Macedo (Mexico): UN doc. A/AC.96/SR.564, para. 46 (2002); Mr Gabriels (Nigeria): UN doc. A/AC.96/SR.566, para. 15 (2002); Ms Raoul (Observer for the Congo): UN doc. A/AC.96/R.581, para. 97 (2004).

150  Mr McNamara (UNHCR, Department of International Protection): UN doc. A/AC.96/SR.522, para. 65 (1997).

151  Mr Noirfalisse (Belgium): UN doc. A/AC.96/SR.552, para. 50 (2001).

152  Mr Futrakul (Thailand): UN doc. A/AC.96/SR.554, para. 60 (2001).

153  Within five days of the NATO bombings, 130,000 Albanians had fled Kosovo; nine weeks later, 860,000 people had fled: see Suhrke, A., Barutciski, M., Sandison, P. & Garlock, R., The Kosovo Refugee Crisis: An Independent Evaluation of UNHCR’s Emergency Preparedness and Response (UNHCR, Geneva, Feb. 2000) para. 31. For a critique of that report, see European Council on Refugees and Exiles (ECRE), ‘The Kosovo Refugee Crisis: ECRE’s Observations on the Independent Evaluation of UNHCR’s Emergency Preparedness and Response’ <http://www.ecre.org/statements/koseval.shtml>. More generally, see Independent International Commission on Kosovo, Kosovo Report: conflict, International Response, Lessons Learned (2000).

154  See Amnesty International, Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees (1999) (AI Index EUR 65/03/99).

155  Coleman, ‘Non-Refoulement Revised’, above n. 96, 38, citing Suhrke, Barutciski, Sandison, & Garlock, The Kosovo Refugee Crisis, above n. 153. Coleman’s references do not match the publicly available version of this report; see paras. 447–50. See also House of Commons Select Committee on International Development, Kosovo: The Humanitarian Crisis (3rd Report, 1999), HC 422, para. 79.

156  Mr Dorais (Canada): UN doc. A/AC.96/SR.535, para. 42 (1999). Amnesty International suggested that ‘[t]he rush of the international community to evacuate refugees as soon as possible tacitly accept[ed] this Macedonian position’: Amnesty International, Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees (1999) (AI Index EUR 65/03/99), s. 5.5.

157  Ms Anderson (Ireland): UN doc. A/AC.96/SR.518, para. 4 (1997).

158  Mr McNamara (UNHCR): UN doc. A/AC.96/SR.522, para. 57 (1997).

159  Brownlie, I., Principles of Public International Law, (6th edn., 2003), 8, 11–12; International Law Association, ‘Statement of Principles Applicable to the Formation of General Customary International Law’, Report of the 69th Conference, (2000), 734ff; see also International Law Association, Res. No. 16/2000, Report of the 69th Conference, (2000), 39.

160  Ms Haaland Matlary (Norway): UN doc. A/AC.96/SR.526, para. 31 (1998).

161  Ms Andersson (Sweden): UN doc. A/AC.96/SR.536, para. 1 (1999).

162  Ms Anderson (Ireland): UN doc. A/AC.96/SR.537, para. 24 (1999).

163  Mr Maurer (Switzerland): UN doc. A/AC.96/SR.554, para. 12 (2001).

164  See Coleman, ‘Non-Refoulement Revised’, above n. 96, 31–3. Coleman notes that none of the major UN conferences at the time commented on Croatia’s border closures and forced returns.

165  Ibid., 50.

166  This section, which should be read in conjunction with s. 2.5.1, focuses on State practice since 1997; for earlier practice, see the 2nd edition of this work.

167  See generally US Committee for Refugees and Immigrants, World Refugee Survey (all years).

168  Mr McNamara (UNHCR): UN doc. A/AC.96/SR.522, para. 57 (1997).

169  Ibid., para. 61.

170  Ms Oakley (United States): UN doc. A/AC.96/SR.522, para. 85 (1997).

171  Ms Makundi (International Council of Voluntary Agencies): UN doc. A/AC.96/SR.522, para. 30 (1997).

172  Mrs Ogata (High Commissioner): UN doc. A/AC.96/SR.516, paras. 27–8 (1997).

173  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/882 (2 Jul. 1997), para. 8.

174  Chairman: UN doc. A/AC.96/SR.516, para. 15 (1997).

175  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/898 (3 Jul. 1998), para. 13.

176  US Committee for Refugees and Immigrants, World Refugee Survey, Tanzania (1998).

177  US Committee for Refugees and Immigrants, World Refugee Survey, Tanzania (2000).

178  Cf. Hathaway, J. C., The Rights of Refugees under International Law, (2005), 364, and further discussion below.

179  See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, (25 Jan. 2005).

180  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/1008 (4 Jul. 2005), para. 4.

181  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/989 (7 Jul. 2004), para. 11.

182  UNHCR, ‘Note on International Protection’, UN doc A/AC.96/1008 (4 Jul. 2005), para. 28.

183  Comments of R. Buttiglione (5 Oct. 2004) and Minister of the Interior, G. Pisanu, cited in Migration Policy Group, ‘Migration News Sheet’, (Nov. 2004), 12.

184  Comments of Minister of the Interior, G. Pisanu, ibid.

185  Comments of Libyan Minister of the Interior, N. Al-Mabruk, ibid., 13.

186  Mr Schenkenberg van Mierop (International Council of Voluntary Agencies): UN doc. A/AC.96/SR.585, para. 10 (2004).

187  In 2004, Jordan declared its border closed to new refugees. Although immigration Officers were stationed at 114 airports and borders in the Russian Federation, not one person was granted asylum in 2004 and no appeals were permitted: US Committee for Refugees and Immigrants, World Refugee Survey (2005). In 2003, Tanzania closed certain border crossing points, denying access to new asylum seekers, and Iran summarily deported people arriving at the border: US Committee for Refugees and Immigrants, World Refugee Survey (2004).

188  Tanzania deported refugees found outside camp areas: US Committee for Refugees and Immigrants, World Refugee Survey (2005).

189  Statement by White House Deputy Spokesman Adam Ereli (20 Jul. 2005), cited in International Commission of Jurists Media Release (8 Sept. 2005).

190  US Committee for Refugees and Immigrants, World Refugee Survey (2005).

191  Ibid., (2004).

192  Ibid., (2003).

193  Ibid., (2005).

194  Ibid., (2003).

195  UNHCR ‘Note on International Protection’, UN doc. A/AC.96/951 (2001), para. 19.

196  Ibid., para. 21.

197  UNHCR, ‘Note on International Protection’, UN doc A/AC.96/1008 (4 Jul. 2005), para. 28.

198  Ibid., para. 29.

199  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/951, para. 16.

200  For example, Iran, Iraq, Nepal, Côte d’Ivoire, Thailand, and Kenya.

201  UNHCR, ‘Note on International Protection’, UN doc. A/AC.96/951, para. 18; Türk, V., ‘Forced Migration and Security’, 15 IJRL 113, 115 (2003).

202  See also Executive Committee Conclusion No. 79 (1996), No. 81 (1997) and No. 82 (1997).

203  UNGA res. 52/103 (12 Dec. 1997), para. 5.

204  See further below, s. 4.

205  United Nations Conference of Plenipotentiaries, Summary Records: UN doc. A/CONF.2/SR.35, 23 (1951).

206  UN doc. A/CONF.2/SR.35, 22 (1951).

207  UN doc. A/CONF.2/SR.16, 4, (1951).

208  Support for the principle of serious risk as the determinant for refugee status and consequently also for non-refoulement, can be found in numerous national decisions; see above, Ch. 3, s. 3.

209  See the US Supreme Court decisions in INS v. Stevic, 467 US 407 (1984) and INS v. Cardoza-Fonseca 480 US 421 (1987); for comment, see 2 IJRL 461–7 (1990). The remedy was provided by the Final Rule on Asylum and Withholding of Deportation Procedures, issued by the US Department of Justice Immigration and Naturalization Service in July 1990.

210  [1989] 1 AC 958, 1001 (Lord Goff). UNHCR submitted an intervenor brief.

211  For discussion of the absolute prohibition on return to torture or cruel, inhuman or degrading treatment or punishment, see Ch. 6.

212  See, for example, art. 3, 1933 Convention relating to the International Status of Refugees: 159 LNTS 199; art. 5(2), 1938 Convention concerning the Status of Refugees coming from Germany: 192 LNTS 59. At the first session of the Ad hoc Committee, the British delegate suggested that non-refoulement should not apply when national security was involved: UN doc. E/AC.32/SR.20, paras. 10–12. In the context of ‘public order’, the French representative had suggested limiting ‘protected opinions’ to those not contrary to the purposes and principles of the United Nations: ibid., paras. 8, 19. Several States thought this a too drastic Qualification: Belgium, Israel and the United States: ibid., paras. 13, 15, 16, and generally, while others remained concerned to protect public order, even if the concept were somewhat ambiguous: cf. Venezuela: ibid., paras. 38–43. The concept of public order was discussed further at the second session; see UN doc. E/AC.32/SR.40, 10–30 (1950); Report of the Ad hoc Committee: UN doc. E/AC.32/8, para. 29.

213  Although ‘security’ is mentioned in arts. 9, 28, 32, and 33 of the Convention, these provisions do not give any indication of the content of the concept. By contrast to the exclusion clauses, a refugee removed under art. 33(2) is not considered undeserving of protection, but rather has forfeited the right to claim on-going protection from the host State by reason of his or her conduct. On the distinction, see, for example, Pushpanathan v. Canada [1998] 1 SCR 982, para. 58; T v. Secretary of State for the Home Dept. [1996] 2 All ER 865; Attorney-General v. Zaoui (No. 2) [2005] 1 NZLR 690 (CA), para. 166; Moses Allueke, 188981, France, Conseil d’Etat, 3 nov. 1999. The ‘particularly serious crime’ in art. 33(2) must have been committed after the individual’s admission as a refugee, otherwise there would be an overlap with article 1F (on which, see above Ch. 4). See also Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above, n. 23, para. 149; Hathaway, Rights of Refugees, (2005), 315; but cf. EU Qualification Directive, art. 14(4), (5), which purports to extend Member States’ discretionary competence (‘Member States may … ’) to ‘revoke, end or refuse to renew the status granted to a refugee’ on the basis of art. 33(2) criteria, or not to grant status where a decision has not yet been taken. As noted above in Ch. 4, art.14(6) of the Qualification Directive lays down a minimal ‘status’ for those to whom art. 33(2) CSR5I applies.

214  The reference to ‘reasonable grounds’ was interpreted by one representative at the 1951 Conference as allowing States to determine whether there were sufficient grounds for regarding the refugee as a danger and whether the danger likely to be encountered by the refugee on refoulement was outweighed by the threat to the community: UN doc. A/CONF.2/SR.16, 8 (1951).

215  See Goodwin-Gill, Movement of Persons, above, n. 2, 241–2, 247–50. Hathaway takes a different approach to this issue: Rights of Refugees, (2005), above n. 20, 354–5.

216  Grahl-Madsen, A., Commentary on the Refugee Convention 1951, 236; this work, drafted in 1962–63, was published by UNHCR, Geneva, in 1997.

217  See, for example, Migration Act 1958 (Cth) ss. 500, 502 (Australia); Immigration and Refugee Protection Act 2001 ss. 3, 34, 115 (Canada); Ordonnance relative aux conditions d’entrée et de séjour des étrangers en France, as amended in 2003 (Loi nº 2003-1119 2003-11-26 art. 37, J.O. 27 nov. 2003), arts. 25 bis, 28; Loi du 25 juillet 1952 relative au droit d’asile (as amended to the loi nº 2003-1776 du 10 décembre 2003), art. 8 (France); Zuwanderungsgesetz, arts. 25, 60(8) (Germany); 1998 Loi d’asile s. 5 (Switzerland); EU Qualification Directive, recital 28: ‘The notion of national security and public order also covers cases in which a third country national belongs to an association which supports international terrorism or supports such an association.’

218  For attempts to define ‘national security’ in domestic law, see Security Intelligence Organisation Act 1979 (Cth), s. 4 (Australia); Canadian Security Intelligence Service Act 1985, s. 2 (Canada), see also Suresh v. (Minister of Citizenship and Immigration [2002] 1 SCR 3); Security Service Act 1989, s. 1 (UK); Terrorism Act 2000, s. 1 (UK); Loi fédérale instituant des mesures visant au maintien de la sûreté intérieure, arts. 2–3 (RS 120: Switzerland); EU Qualification Directive, recital 28.

219  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above n. 23, para. 165.

220  Hathaway, Rights of Refugees (2005), above, n. 70, 346.

221  Suresh, above n. 218 para. 88. Note the US view: A-H-, 23 I&N Dec 774 (AG 2005): ‘“danger to the security of the United States” means any nontrivial risk to the Nation’s defense, foreign relations, or economic interests’.

222  Suresh, above n. 218, para. 90. See also Secretary of State for the Home Department. v. Rehman [2003] 1 AC 153, [2001] UKHL 47.

223  See Suresh, above n. 218, para. 91; Hathaway, Rights of Refugee, (2005), 346; DJ, 23 I&N Dec 572 (A.G. 2003).

224  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, para. 168. See, for example, A-H-, 23 I&N Dec 774 (AG 2005): ‘“reasonable grounds for regarding” an alien as a danger to the national security [means] there is information that would permit a reasonable person to believe that the alien may pose such a danger’.

225  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, para. 169.

226  Ibid., para. 170; UNHCR, ‘Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’, UN doc. HCR/GIP/03/05 (4 Sept. 2003), paras. 10, 44; House of Lords/House of Commons Joint Committee on Human Rights, ‘The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004’ (22nd Report of Session 2003–04), paras. 19–26.

227  With respect to the analogous terms of art. 1F(b), see above Ch.4, s. 4.2; UNHCR, Handbook, paras. 155–6 Hathaway states that the conviction must also ‘sustain the conclusion that the offender “constitutes a danger to the community”’: Hathaway, J. C., The Law of Refugee Status (1991), 226; Rights of Refugees, (2005), 351.

228  Note that legislation now defines ‘particularly serious crime’: Migration Act 1958 (Cth), s. 91U.

229  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, para. 187; A v. Minister for Immigration and Multicultural Affairs [1999] FCA 227, paras. 3–5; Betkoshabeh v. MIMA (1998) 157 ALR 95, 100, reversed on a different point in (1999) 55 ALD 609.

230  A v. Minister for Immigration and Multicultural Affairs [1999] FCA 227, para. 4.

231  Ibid., para. 5. See above on context and proportionality, Ch. 4, s. 4.2.2.

232  Betkoshabeh v. MIMA (1998) 157 ALR 95, 100. Finkelstein J. accepted that there might be crimes which are particularly serious per se, but implied that they would be rare. For examples of whether crimes are ‘particularly serious’, see, among others, Toboso-Alfonso, 20 I&N Dec 819 (BIA 1990)—burglary and possession of cocaine not ‘particularly serious’; Ipina v. INS 868 F.2d 511 (1st Cir. 1989)—possession of cocaine with intent to distribute makes applicant ineligible for asylum; L-S-J-, 21 I&N Dec 973 (BIA 1997)—robbery with a deadly weapon (handgun) is a ‘particularly serious crime’ and renders applicant ineligible for asylum or withholding of deportation; L-S-, 22 I&N Dec 645 (BIA 1999)—three-and-a-half months’ imprisonment for bringing an illegal alien into the United States not a ‘particularly serious crime’, based on nature and underlying circumstances of conviction; Y-L-, A-G-, R-S-R-, 23 I&N Dec 270 (AG 2002)—aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute ‘particularly serious crimes’, and only the most extenuating, extraordinary and compelling circumstances would permit departure from this interpretation; O.V., Federal Council (Bundesrat), Switzerland, 23 Aug. 1989; 4 Asyl 1—applicant responsible for killing but acquitted by reason of insanity; notwithstanding absence of conviction ‘by a final judgment’, not entitled to non-refoulement because underlying purpose is to protect community from dangerous refugees. The New Zealand Supreme Court rightly pointed out in Attorney-General v. Zaoui [2005] NZSC 38 that some of the above references mistakenly appeared in the 2nd edn. of this work as examples of ‘balancing’, rather than of ‘particularly serious crimes’.

233  INA, s 238; 8 USC § 1228(c): ‘An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States’.

234  A v. Minister for Immigration and Multicultural Affairs [1999] FCA 227, para. 42.

235  Ibid., para. 3 (Burchett and Lee JJ.).

236  Australia: Migration Act 1958 (Cth), s. 91U; Canada: Immigration and Refugee Protection Act 2001, s. 36. US law now defines the term to encompass ‘aggravated felonies’, the range of which is very broad and much wider than the exception to non-refoulement under the Convention: 8 USC §1101(a)(43)—a list comprising some twenty sub-headings and numerous sub-sub-headings. See Y-L-, A-G-, R-S-R-, 23 I&N Dec. 270 (AG, 2002) holding that: ‘We find that the crime of trafficking of drugs is inherently a particularly serious crime.’ The Attorney-General found it unnecessary to inquire into the nature and circumstances of the conviction. Section 241(b)(3)(B)(iv) of the INA, 8 USC §1231(b)(3)(B)(iv) provides for ‘withholding’ of removal and is intended to implement art. 33(2) CSR51. See, however, the Attorney-General’s administrative ruling in A-H- 23 I&N Dec. 774 (AG 2005), adopting a subjective interpretation of this provision, according to which ‘[a]ny level of danger to national security is deemed unacceptable; it need not be “serious”, “significant”, or “grave” danger’ (at 788).

237  Migration Act 1958 (Cth), s. 91U. In Australia, this is not intended to oust the subsequent assessment of whether the individual is a danger to the community. The Department of Immigration’s own guidelines on interpreting the 1951 Convention state: ‘The legislation does not define the second limb of the test, whether a person is “a danger to the community”. This assessment will continue to be undertaken on a case-by-case basis’: DIMA, Interpreting the Refugees Convention, (2002), 55.

238  On legislative Classification of ‘serious crimes’ and the use of presumptions, see above, Ch. 4, s. 4.2.2.

239  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above n. 23, paras. 177–9; UNHCR, Handbook, para. 156; UNHCR, ‘Advisory Opinion regarding the Scope of the National Security Exception in Article 33(2)’, 6 Jan. 2006: <http://www.unhcr.org>; Grahl-Madsen, Commentary on the Refugee Convention (1997), art. 33. In Pushpanathan, [1998] 1 SCR 982, para. 73, the court noted that domestic legislation provided for weighing the seriousness of the danger posed to Canadian society against the danger of persecution on refoulement. However, where a decision on the weighting of the applicant’s conduct is made by a ‘broad discretion’, especially by a Minister, that decision should be respected unless it is patently unreasonable: Suresh, [2002] 1 SCR 3, paras. 32, 34, 37; Secretary of State for the Home Dept v. Rehman [2003] 1 AC 153, [2001] UKHL 47, para. 62 (Lord Hoffmann). In such cases, it is up to the Minister, and not the court, to weigh relevant factors: Suresh, para. 34. ‘The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold her decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.’: ibid., para. 38; see also Sogi v. Minister of Citizenship and Immigration [2005] 1 FC 171. The balancing approach adopted in Suresh with respect to refoulement to torture is not consistent with international law, which proscribes removal to torture absolutely: see further below Ch. 6.

240  See above, Ch. 2, s. 4.2.

241  See, for example, UK Immigration, Nationality and Asylum Act 2006, s. 55; Anti-terrorism, Crime and Security Act 2001, s. 34; Nationality, Immigration and Asylum Act 2002, s. 72(8). Some commentators also appear to endorse the ‘effective refoulement’ approach, although the conclusory manner of presentation can often fail expressly to disclose a range of necessarily preceding assessments in which individual circumstances and proportionality can and ought to have been considered; cf. Hathaway, Rights of Refugees, (2005), 353, on art. 33(2): ‘If it is shown either that a refugee is a danger to national security, or that a refugee who is a serious criminal poses a danger to the safety of the community of that country, there is therefore no additional proportionality requirement to be met: by definition, no purely individuated risk of persecution can offset a real threat to such critical security interests of the receiving State’ (emphasis supplied). The balancing approach was rejected by the NZ Supreme Court in Attorney-General v. Zaoui [2005] NZSC 38, para. 42, reversing the decision of the Court of Appeal on this point: see Attorney-General v. Zaoui (No. 2) [2005] NZLR 690, para. 157 (Glazebrook J.). The UNHCR Handbook does not deal with art. 33(2), although it argues for a balancing approach when dealing with exclusion under Article 1F: paras. 153–4. A ‘balancing test’ has been used in Belgium (see CPRR, W1916 of 9 Aug. 1995; CPRR, W4403 of 9 Mar. 1998; CPRR, W4589 of 23 Apr. 1998) and in Canada (at least with respect to crimes): Pushpanathana [1998] 1 SCR 982, para. 73: ‘Article 33(2) as implemented in the Act by ss. 53 and 19 provides for weighing of the seriousness of the danger posed to Canadian society against the danger of persecution upon refoulement. This approach reflects the intention of the signatory states to create a humanitarian balance between the individual in fear of persecution on the one hand, and the legitimate concern of states to sanction criminal activity on the other.’ Note also Secretary of State for the Home Department v. Rehman [2003] 1 AC 153, [2001] UKHL 47, para. 16 (Lord Slynn): ‘Whether there is such a real possibility [of risk to national security] is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to that individual if a deportation order is made’; and para. 56 (Lord Hoffmann): ‘But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant’s conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.’

242  Replacing s. 33, Anti-terrorism, Crime and Security Act 2001.

243  Lord Rooker, Hansard, HL 629, col. 1253 (11 Dec. 2001).

244  [2005] 2 AC 68, [2004] UKHL 56, esp. paras. 30, 121, 132, 236.

245  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above n. 23, para. 178.

246  For a ‘democratic conception of security’, see Lustgarten, L. & Leigh, I., In from the Cold: National Security and Parliamentary Democracy, (1994), 32, and generally.

247  This does not exclude the use of ‘security’ procedures, provided that they in turn conform with the State’s obligations with regard to due process and procedural guarantees; see above, Ch. 4, s. 4.5.

248  In Military and Paramilitary Activities in and against Nicaragua, ICJ Reports, (1986), 3 and the Case Concerning Oil Platforms, ICJ Reports (2003), the International Court of Justice considered the lawfulness of measures taken, inter alia, to protect the ‘essential security interests’ of one of the parties. It held that the measures taken, ‘must not merely be such as tend to protect’ those interests (emphasis added), but must be necessary for that purpose; and ‘whether a given measure is “necessary” is not purely a question for the subjective judgement of the party … and may thus be assessed by the Court’: Oil Platforms, para. 43. See also Gabcíkovo-Nagymoros Project Case, ICJ Reports, (1997), 40–1, paras. 51–2.

249  Art. II.

250  For criticism of the terms, see Weis, P., ‘The United Nations Declaration on Territorial Asylum’ 7 Can. YIL 92, 113, 142–3 (1969). Weis nevertheless applauds rejection of the ‘public order’ exception, which he sees as too wide and susceptible of different connotations in civil and common law countries. For an examination of the ordre public concept in the context of entry and expulsion generally, see Goodwin-Gill, Movement of Persons, 168–9, 229–37, 298–9.

251  UN doc. A/CONF.78/C.1/L.28/Rev.1, adopted in the Committee of the Whole by 24 votes to 20, with 40 abstentions, in a vote which requires to be understood in context with premature efforts to secure the agreement of States on a ‘right to asylum’.

252  On this point, see UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 Jan. 1994, para. 37. See Ch. 6 below.

253  This is the position of Hathaway, Rights of Refugees, (2005), 355–63 and Coleman, ‘Non-refoulement revised’, above n. 96. For the opposite view: Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above, n. 23, para. 103.

254  Turkey maintains the geographical limitation to its obligations under the 1951 Convention, and is thus not bound by treaty towards non-European refugees arriving on its territory or at its borders.

255  The creation of security zones in the former Yugoslavia in the 1990s was more ad hoc, although pursued under the auspices of a ‘right to remain’, that is, ‘the basic right of the individual not to be forced into exile’: UN High Commissioner for Refugees (Mrs Ogata) ‘Statement to the Commission on Human Rights’ (Geneva, 3 Mar. 1993); see also Report on Human Rights in Former Yugoslavia, UN doc. E/CN.4/1992/S-1/10 (1992), para. 25(b). Simply preventing refugee movements, especially where the emphasis is on halting flight rather than removing causes, is an untenable solution and may lead to further human rights violations. For comment on the efficacy of international protection measures, see Mooney, E. D., ‘Presence, ergo, protection? UNPROFOR, UNHCR and the ICRC in Croatia and Bosnia and Herzegovina’, 7 IJRL 407 (1995); Thorburn, J., ‘Transcending Boundaries: Temporary Protection and Burden-Sharing in Europe’, ibid., 459; Landgren, K., ‘Safety Zones and International Protection: A Dark Grey Area’, ibid., 436; Higgins, R., ‘The United Nations and Former Yugoslavia’, 69 International Affairs 3 (1993); Grant, S., ‘Protection Mechanisms and the Yugoslav Crisis’, Interights Bulletin, 8:1 (1994). On so-called ‘preventive protection’, see the 2nd edn. of this book, 282–91. On the EU proposals, see Ch. 7, s. 6.7.

256  See, generally, Ch. 6; on the scope of non-refoulement under customary international law, see Ch. 6, s. 7.

257  Some States impose different legal tests for the two concepts, which may in turn influence an applicant’s ability to characterize his or her claim as one or the other. For example, in Canadian law, applicants fearing a risk of torture or cruel and unusual treatment or punishment must show that that risk is ‘more likely than not’; whereas applicants fearing persecution need only show that there is a ‘reasonable chance’ of persecution: Li v. Canada (Minister for Citizenship and Immigration) [2005] 3 FCR 239 (FCA).

258  Joint Committee on Human Rights, Particularly Serious Crimes, above, n. 226, para. 30.

259  Ibid., para. 31.

260  The Qualification Directive seems to contemplate this possibility: art. 14(5).

261  This is implicit in the decision of the Conseil d’Etat in CE, 21 mai 1997, 148.997, M. P., ruling that, while art. 33(2) permits refoulement in certain circumstances, it does not imply that the benefit of refugee status can be withdrawn. See also Lambert, H., ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, 55 ICLQ 161, 178 (2006), who states that while art. 33(2) may deprive an individual of the benefit of non-refoulement, ‘it does not provide that such a person may not benefit from the provisions of the Refugee Convention at large. Article 33(2) is not an exclusion clause.’ Art. 14(4) of the Qualification Directive provides that Member States may revoke, end, or refuse to renew refugee status where art. 33(2) applies, but pursuant to art. 14(6), such refugees remain entitled to the Convention rights contained in arts. 3 (non-discrimination), 4 (religion), 16 (access to courts), 22 (public education), 31 (refugees unlawfully in the country), 32 (expulsion), and 33 (non-refoulement). By contrast, art. 19, on revocation of subsidiary protection, is silent on the question of resultant rights. See further, McAdam, J., Complementary Protection in International Refugee Law, (2007), Ch. 2.

262  See UNHCR, Handbook, para. 28.

263  Brownlie, I., System of the Law of Nations: State Responsibility, Part I, (1983), 150–1.

264  Ibid., at 135–7, 159–66.

265  Lopez Burgos v. Uruguay, Comm. No. R.12/52, UN doc. A/36/40 (1981), para. 12.3; Celiberti de Casariego v. Uruguay, Comm. No. R.13/56, UN doc. A/36/40 (1981), para. 10.3.

266  Lopez Burgos v. Uruguay, above note, para. 12; de Casariego v. Uruguay, above note, para. 10. See also Human Rights Committee, General Comment No. 31 (2004), para. 10; ‘Concluding Observations of the Human Rights Committee: Israel’, UN doc. CCPR/C/79/Add.93 (18 Aug. 1998), para. 10; ‘Concluding Observations of the Human Rights Committee: United States of America’, UN doc. CCPR/C/79/Add.50 (6 Apr. 1995), para. 284; Inter-American Human Rights Commission, Coard v. United States, Case No. 10.951, Rep. No. 109/99 (29 Sept. 1999), para. 37: ‘Given that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction’; Inter-American Human Rights Commission, Haitian Refugee Cases, Case No. 10.675, Inter-Am. C.H.R. 334, OEA/Ser.L/V/II.85, doc. 9 rev (1994)—ruling on the issue of admissibility that US interdiction policies appeared to violate, among others, the American Declaration of Human Rights and the American Convention on Human Rights. For additional cases, see Nowak, M., UN Covenant on Civil and Political Rights: CCPR Commentary (1993), Article 2, Section IV, paras. 27–30; and for further analysis of the extraterritorial application of the ICCPR, see Noll, G., ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, 17 IJRL 542, 557–64 (2005).

267  Cyprus v. Turkey, Report of the Commission (10 Jul. 1976), (1982) 4 EHRR 482.

268  Loizidou v. Turkey (1995) 20 EHRR 90, para. 62. In the Canadian context, see United States v. Burns [2001] 1 SCR 283, para. 60; Canada v. Schmidt [1987] 1 SCR 500, 522; Suresh v. Minister of Citizenship and Immigration [2002] 1 SCR 3, para. 54.

269  Wilde terms these the ‘spatial basis for jurisdiction’ and the ‘personal basis for jurisdiction’ respectively: Wilde, R., ‘The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?’, 2 European Human Rights Law Review 115, 116 (2005).

270  Banković v. Belgium (2001) 11 BHRC 435, para. 67.

271  Ibid., para. 71.

272  Banković, above n. 270, para. 73. See also R. (European Roma Rights Centre) v. Immigration Office at Prague Airport [2005] 2 AC 1, paras. 21ff; R. (on the Application of ‘B’) v. Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643, [2004] EWCA Civ 1344, para. 66. ‘Authorised agents of a State … bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. In so far as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged’: M v. Denmark (1992) 73 D.R 193, para. 196.

273  Banković, above n. 270, para. 80; Wilde, above n. 269,, 116.

274  Öcalan v. Turkey (2000) 30 EHRR CD 231 (Admissibility); Öcalan v. Turkey (2003) 37 EHRR 10 (Merits); Öcalan v. Turkey (Grand Chamber) (12 May 2005), applying to Turkish activities in Kenya; Issa v. Turkey Application No. 31821/96 (Admissibility) (30 May 2000); Issa v. Turkey Application No. 31821/96 (Merits) (16 Nov. 2004), applying to Turkish activities in Iraq. See also B’s case, above note. On reconciling these cases with Banković, above n. 270, see Wilde, R., ‘Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights’, 26 Michigan Journal of International Law 739, 795–7 (2005).

275  Wilde, above n. 269 on the UK’s obligations specifically, see Wilde, R., ‘The Extraterritorial Application of the Human Rights Act’ in Holder, J. & O’Cinneide, C., eds., Current Legal Problems 2005 (2005). The question of extraterritorial application of human rights treaties is crucial to determining what States may and may not do in relation to policies intended to prevent the arrival or admission of asylum seekers; see further below, Ch. 7.

276  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above n. 23, para. 67. They also observe that if an individual has taken refuge in a diplomatic mission within his or her own country, then the protecting State is subject to the prohibition on refoulement: para. 114.

277  See Executive Order No. 12,807: 57 Fed. Reg. 23133 (also known as the ‘Kennebunkport Order’, reversed by President Clinton in 1994).

278  See Miranda, C. O., ‘Haiti and the United States during the 1980s and 1990s: Refugees, Immigration, and Foreign Policy’, 32 San Diego Law Review 680, 720–1 (1995).

279  16 Refugee Reports, (28 Feb. 1995), 11.

280  509 US 155 (1993); see also Cubtan-American Bar Ass’n Inc. v. Christopher, 43 F. 3d 1412 (11th Cir., 1995) in which the Court ruled that refugees in safe haven camps outside the US do not enjoy constitutional due process and are not protected from forced return by art. 33 CSR51 or the Immigration and Nationality Act. See Frelick, B., ‘“Abundantly Clear”: Refoulement’, 19 Georgetown Immigration Law Journal 245 (2005).

281  For further views, see the dissenting judgment of Blackmun J. and Goodwin-Gill’s ‘Comment’ in 6 IJRL 71, 103 (1994).

282  Cf. UNHCR, Brief amicus curiae, 6 IJRL 85 (1994).

283  Haitian Center for Human Rights v. United States, Case 10.675, Report No. 51/96, Inter-Am. CHR Doc. OEA/Ser.L/V/II.95 Doc. 7 rev. (13 Mar. 1997), paras. 156–8. See also Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: United States of America’, UN doc. CCPR/C/79/Add.50 (6 Apr. 1995), para. 284.

284  Haitian Center for Human Rights v. United States, above note, paras. 171, 163 respectively.

285  See above nn. 84, 89, 56 and accompanying text.

286  Executive Order 12324, 29 Sept. 1981, s. 3.

287  ‘ … the Administration is firmly committed to the full observance of our international obligations and traditions regarding refugees, including … the principle of non-refoulement … If there were an indication of a colorable claim of asylum, the individual would be brought to the United States where a formal application for asylum would be filed … these procedures will insure that nobody with a well-founded fear of persecution is mistakenly returned to Haiti.’ The relevant correspondence and statements are cited in UNHCR’s amicus curiae brief: 6 IJRL 85 (1994). See also (1994) Memorandum to all INS employees assigned to duties related to interdiction at sea, revised 26 Aug. 1982 under signature of the INS Associate Commissioner Examinations: ‘The only function INS Officers are responsible for is to ensure that the United States is in compliance with its obligations regarding actions towards refugees, including the necessity to be keenly attuned … to any evidence which may reflect an individual’s well-founded fear of persecution.’ The list of authorities expressly cited for this memorandum included not only the Presidential Proclamation and Executive Order of 29 Sept. 1981, but also art. 33 of the 1951 Convention. INS Acting Commissioner Doris M. Meissner’s letter of 29 Dec. 1981 to the UNHCR Chief of Mission: ‘These procedures fully comply with our responsibilities under the UN Convention and Protocol’ (emphasis supplied). Similar statements are cited by Blackmun, J., dissenting in Sale v. Haitian Centers Council, Inc.: 6 IJRL 71 (1994).

288  Nuclear Tests case (Australia v. France), ICJ Rep., (1974), 457, para. 46.

289  Ibid., para. 49.

290  Art. 35, 1951 Convention; art. II, 1967 Protocol.

291  For example, in its amicus curiae brief in Haitian Refugee Center, Inc. v. Gracey, UNHCR argued that, ‘Given the applicability of the principle of non-refoulement to the broad field of State action or omission, the secondary principle of effectiveness of obligations itself obliges a State to establish procedures adequate and sufficient to ensure fulfilment of the primary duty … [W]here … a State of its own volition, elects to intercept asylum-seekers on the high seas and outside their own or any State’s territory, particularly high standards must apply and be scrupulously implemented.’ Motion for Leave to file Brief Amicus Curiae and Brief Amicus Curiae of the United Nations High Commissioner for Refugees in support of Haitian Refugee Center, Inc., et al, 8 Jul. 1985, Section III, 19–24.

292  Art. 15(b) of the Qualification Directive only requires subsidiary protection status to be granted when an individual fears removal to torture or inhuman or degrading treatment or punishment in his or her country of origin. Although Member States remain bound by their international law obligations not to remove individuals to any territory where there is a risk of such harm, the nature of the domestic legal status—if any—that such persons are granted is uncertain.

293  The original text read ‘to the frontiers of their country of origin, or to territories’. Presumably because the term ‘territories’ also encompassed the ‘country of origin’, the UK delegation proposed the simpler formulation ‘to the frontiers of territories’, noting that ‘the amendment would not alter the purport’ of the paragraph: Ad Hoc Committee on Statelessness and Related Problems (1st Session), ‘Summary Record of the 20th Meeting’ (1 Feb. 1950) UN doc. E/AC.32/SR.20 (Sir Leslie Brass, United Kingdom), para. 7.

294  Lauterpacht & Bethlehem, ‘Non-refoulement: Opinion’, above n. 23 para. 114.

295  R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 AC 1. That diplomatic asylum has a legal basis in the notion of extraterritoriality—a predominant view in the 19th century—has more recently been discredited and described as a ‘fiction’: see discussion in Question of Diplomatic Asylum: Report of the Secretary-General (Sept. 1975) UN doc. A/10150, paras. 301–2.

296  See Noll, G., ‘Seeking Asylum at Embassies: A Right to Entry under International Law’, 17 LJRL 542 (2005) (hereafter , Noll, ‘Seeking Asylum at Embassies’). In our view, the shortcoming of the 1951 Convention is not the term ‘refoulement’, as Noll suggests at 555, but the requirement that the individual be outside his or her country of origin. Human rights forms of non-refoulement remain relevant (see below Ch. 6), but need to be reconciled with traditional perceptions, such as that expressed by the International Court of Justice in the Asylum case: ‘In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of the State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.’ Asylum Case [1950] ICJ Rep. 266, 274; cf. R. (B) v. Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643, [2004] EWCA Civ. 1344.

297  O’Connell, D.P., International Law, (1970), 734.

298  See Jennings, R. & Watts, A., eds., Oppenheim’s International Law, (9th edn., 1992), vol. 1, para. 495; Question of Diplomatic Asylum, above n. 295, para. 311; cf. paras. 312–21.

299  ‘Fugitive’ implies a criminal, and yet the Australian High Court has stated that immigration detention is not ‘punitive’ but ‘administrative’: Al-Kateb v. Godwin [2004] HCA 37, (2004) 208 ALR 124.

300  B’s case, [2005] QB 643, [2004] EWCA Cir 1344, above n. 296, para. 88. See also Jennings & Watts , above, n. 298, para. 495.

301  B’s case, [2005] QB 643, [2004] EWCA Cir 1344, above n. 296, para. 93 (emphasis added).

302  Noll, ‘Seeking Asylum at Embassies’, above n. 296, 555.

303  Ibid., 553–6.

304  Ibid., 555.

305  Ibid., 568. On the other hand, Noll argues that States’ obligations under the ECHR50 and CRC89 may, in exceptional circumstances, require an entry visa (but not necessarily ‘protection’) to be granted.

306  Committee against Torture, General Comment No. 1 (1997), para. 2; Korban v. Sweden Comm. No. 88/1997 (16 Nov. 1998) UN doc. CAT/C/21/D/88/1997); Human Rights Committee, General Comment No. 31 (2004), para. 12; R. v. Secretary of State for the Home Dept, ex p. Adan [2001] 2 AC 477 (HL); TI v. UK [2000] INLR 211.

307  UNGA res. 56/83, ‘Responsibility of States for Internationally Wrongful Acts’, (12 Dec. 2001), Annex, art. 47; TI v. UK, above n. 306; Prince Hans-Adam II of Liechtenstein v. Germany Application No. 42527/98, 12 Jul. 2001, para. 48; Banković, above n. 270. See also art. 16 of the Articles on State Responsibility, discussed in Legonsky, S. H., ‘Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection’, 15 IJRL 567, 620–1, 642ff (2003) (the ‘complicity principle’).

308  Crawford, J. & Hyndman, P., ‘Three Heresies in the Application of the Refugee Convention’, 1 IJRL 155, 171 (1989): ‘It is … clear that more than one State may share joint responsibility for decisions which result in the refoulement of a refugee … It follows that a State may not rely on the obligation of another State party to the Convention, even where there are good grounds for saying that the latter State is indeed under a particular obligation with respect to the refugee, if that reliance is likely to result in a violation of Article 33.’

309  On the earlier practice of ‘shuttlecocking’ migrants, see Goodwin-Gill, G. S., International Law and the Movement of Persons between States, (1978), 287–8.

310  Blake, N. & Husain, R., Immigration, Asylum and Human Rights, (2003), para. 4.64.

311  See Amuur v. France (1996) 22 EHRR 533, in which France was held to have violated art. 5 ECHR50 by detaining asylum seekers in the transit zone of Paris-Orly airport.

312  Ibid., para. 52.

313  UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, (31 Jan. 1994), para. 33.

314  See art. 2(1) ICCPR66; art. 1 ECHR50; art. 1 ACHR69. Although ICCPR66 employs the phrase, ‘and subject to its jurisdiction’, the Human Rights Committee has interpreted it to mean, ‘or’; see above, n. 265 and text. The judgment of the Supreme Court of Canada in Singh is premised on the fact that those seeking Charter protection were physically present, and ‘by virtue of that presence, amenable to Canadian law’: Singh v. Minister of Employment and Immigration [1985] 1 SCR 177. Cf. habeas corpus jurisprudence: Re Harding (1929) 63 OLR 518 (Ontario Appeal Division); Barnard v. Ford [1892] AC 326; Cf. Habeas Corpus Act 1679, s. 10; Habeas Corpus Act 1816, s. 5; Habeas Corpus Act 1862; The Sitka (1855), 7 Opinions of the Attorney General, 122; Calvin’s Case (1609) 7 Co. Rep. 1; cited by Sharpe, R. J., The Law of Habeas Corpus, (1976), 182. See also Ramirez v. Weinberger 745 F. 2d 1500 (DC Cir., 1984), where the court considered that US Constitutional guarantees of due process could be invoked by citizens whose property overseas is affected by US governmental action: ‘Where … the court … has personal jurisdiction over the defendants, the extraterritorial nature of the property involved in the litigation is no bar to equitable relief.’ So far as the power to expel and deport implicitly authorizes such extra-territorial constraint as is necessary to effect execution: Attorney-General for Canada v. Cain [1906] AC 542, 546–7, then the legality of such constraint remains reviewable so long as it continues: Cf. R. v. Secretary of State, ex p. Greenberg [1947] 2 All ER 550. Note also s. 6, UK Consular Relations Act 1968, which provides that a crew member on board a ship flying the flag of a designated State who is detained for a disciplinary offence shall not be deemed to be unlawfully detained unless (a) his detention is unlawful under the laws of that State or the conditions of detention are inhumane or unjustifiable severe; or (b) there is reasonable cause to believe that his life or liberty will be endangered for reasons of race, nationality, political opinion or religion, in any country to which the ship is likely to go. The British Court of Appeal held that acts of British consular and diplomatic officials in Australia fell ‘within the jurisdiction’ of the United Kingdom, and that the Human Rights Act 1998 was thus applicable to their actions in that country: B’s case [2005] QB 643, above n. 296, para. 79.

315  See Hamerslag, R. J., ‘The Schiphol Refugee Centre Case’, 1 IJRL 395 (1989); decisions of the French Constitutional Council (25 Feb. 1992) and Paris Tribunal de Grande (25 Mar. 1992) discussed in Amuur v. France (1996) 22 EHRR 533, paras. 21–2. Earlier cases dealt, for example, with habeas corpus and false imprisonment. See Küchenmeister v. Home Office [1958] 1 QB 496, in which a non-citizen in transit at London Airport succeeded in an action for false imprisonment, when immigration Officers prevented him from joining his connecting flight after he had been refused permission to enter.

316  Cf. loi no. 92-625, 6 juill. 1992, sur la zone d’attente des ports et des aéroports: JO, 9 juill. 1992, 9185; Julien-Laferrière, F., ‘Droit d’asile et politique d’asile en France’, Asyl, 1993/4, 75–80—detention after four days can be continued only by decision of the president of the tribunal de grande instance, and entry can only be refused if the application is manifestly unfounded. See Recommendation 1163 (1991) of the Parliamentary Assembly on the Arrival of Asylum-Seekers at European Airports; Recommendation No. R (94) 5 of the Committee of Ministers on Guidelines to Inspire Practices of the Member States of the Council of Europe concerning the Arrival of Asylum-Seekers at European Airports; Recommendation 1475 (2000) of the Parliamentary Assembly on the Arrival of Asylum Seekers at European Airports.

317  For a detailed explanation of the history and operation of the Pacific Strategy (formerly the Pacific Solution), see Crock, M., Saul, B., & Dastyari, A., Future Seekers II: Refugees and Irregular Migration in Australia (2006), Ch. 7. See also Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Border Security Legislation Amendment Act 2002 (Cth).

318  Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Amendment Regulations 2005 (No. 6) (Cth), excising territories previously disallowed in the proposed Migration Amendment Regulations 2003 (No. 8) on 24 Nov. 2003. The camps themselves are run by the International Organization for Migration.

319  Migration Act 1958 (Cth), s. 5.

320  Ibid., s. 494AA. This section does not exclude claims brought under the original jurisdiction of the High Court of Australia (Australian Constitution, s. 75).

321  Response from the Department of Immigration, Multicultural and Indigenous Affairs to a question from the Committee: Senate Legal and Constitutional References Committee, Migration Zone Exclusion: An Examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and Related Matters (2002), 13, para. 2.34. This figure related to proposals which had earlier failed in the Senate, and the places in question were ultimately excised by Migration Amendment Regulations 2005 (No. 6) (Cth).

322  Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. See the Senate Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill (June 2006), which recommended against the adoption of the Bill. For discussion of the international law implications of the Bill, see, in particular, McAdam, J., Submission No. 64 to Senate Legal and Constitutional Legislation Committee Inquiry into the Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (May 2006).

323  Migration Act 1958 (Cth), s. 198A(3).

324  In introducing the Migration Amendment (Excision from Migration Zone) Bill 2001 (Cth) into the House of Representatives, the then Minister for Immigration stated: ‘Australia will continue to honour our international protection obligations’: Second Reading Speech (Mr Ruddock), Cth of Australia, House of Representatives, Official Hansard No. 14, 2001 (18 Sept. 2001), 30871.

325  See discussion of Amuur v. France above, n. 311 and accompanying text.

326  Crock, Saul, & Dastyari, Future Seekers II, above n. 326, 118.

327  See Lukashuk, I.I., ‘The Principle pacta sunt servanda and the Nature of Obligation under International Law’, 83 AJIL 513, 515 (1989). See also the drafting records of the Vienna Convention on the Law of Treaties: Yearbook of the International Law Commission, 1964, vol. I (Summary Records of the 16th Session), 727th Meeting, (20 May 1964), 52ff; Yearbook of the International Law Commission, 1964, vol. II (Documents of the 16th Session) 7; Yearbook of the International Law Commission, 1965, vol. II (Documents of the First Part of the 17th Session), 788th Meeting, (21 May 1965), 87, 88.

328  Arts. 26, 31, 1969 Vienna Convention on the Law of Treaties.

329  See UN doc. A/CONF.2/SR.24, 10 (United Kingdom); ibid., SR.35, 21 (France). At the abortive 1977 United Nations Conference on Territorial Asylum, one article proposed would have protected refugees against extradition to a country in which they might face persecution. The German Democratic Republic and the USSR, however, both prepared amendments reiterating the paramountcy of States’ extradition obligations. These conflicting approaches were not resolved at the Conference, and have been overtaken by consolidating State practice.

330  See above, Ch. 3.

331  See below, Ch. 6. See also Soering v. United Kingdom (1989) 11 EHRR 489, para. 88.

332  On capital punishment, see, for example, art. 11, 1957 European Convention on Extradition; Einhorn v. France, Application No. 71555/01 (16 Oct. 2001), para. 33 (admissibility decision of the European Court of Human Rights). On cruel, inhuman or degrading treatment or punishment, see art. 3 ECHR50; Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States, preambular para. 13: ‘No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’ For examples of more general prohibitions, see art. 19(1), 1997 International Convention for the Suppression of Terrorist Bombings; art. 21, 1999 International Convention for the Suppression of the Financing of Terrorism; art. 15(1), 2002 Inter-American Convention against Terrorism. See generally Kapferer, S., ‘The Interface between Extradition and Asylum’, UNHCR Legal and Protection Policy Research Series, PPLA/2003/05 (Nov. 2003); Dugard, J. & van den Wyngaert, C., ‘Reconciling Extradition with Human Rights’, 92 AJIL 187 (1998).

333  Art. 4(5).

334  Art. 3(2), emphasis supplied; ETS, No. 24; see below, Annexe 2, No. 10.

335  See generally Supplementary Report of the Committee of Experts on Extradition to the Committee of Ministers, Council of Europe doc. CM(57)52.

336  See, for example, art. 19, 1979 Austrian Extradition Law (Auslieferungs- und Rechtshilfegesetz: BGBl Nr. 529/1979), which provides for non-extradition where the proceedings in the requesting State are likely to offend arts. 3 and 6 ECHR50; where the likely punishment is likely to offend art. 3 ECHR50; or where the requested person may face persecution or other serious consequences on grounds akin to those in art. 1 CSR51. Art. 3 of the 1976 Austria-Hungary Extradition Treaty (BGBl Nr. 340/1976) likewise provides for non-extradition (a) in respect of political offences; (b) when the person sought enjoys asylum in the requested State; and (c) when it is not in accord with other international obligations of the requested State. Art 4 of the 1980 Austria-Poland Extradition Treaty (BGBl Nr. 146/1976) is to similar effect. For detailed examples of other municipal laws, see Kapferer, above, n. 332, para. 226.

337  Cmn. 3008.

338  For example UK Fugitive Offenders Act 1967, s. 4; Barbados Extradition Act 1979, s. 7; Kenya Extradition (Commonwealth) Countries Act 1968, s. 6; Papua New Guinea Extradition Act 1975, s. 8; Sierra Leone Extradition Act 1974, s. 15; Singapore Extradition Act 1968, ss. 8, 21; Zambia Extradition Act 1968, s. 31.

339  Cf. art. 4, 1981 Inter-American Convention on Extradition, calling for non-extradition, ‘when, from the circumstances of the case, it can be inferred that persecution for reasons of race, religion or nationality is invoked, or that the position of the person sought may be prejudiced for any of these reasons’. See also art. 5, 1977 European Convention on the Suppression of Terrorism, in which non-extradition is optional (‘Nothing in this Convention shall be interpreted as imposing an obligation to extradite if … ’); art. 9, 1979 International Convention against the Taking of Hostages: UNGA res. 34/146, (17 Dec. 1979), which employs the ‘extradition shall not be granted’ formula, includes ethnic origin within the list of relevant grounds, and adds one further likely cause of prejudice: ‘the reason that communication with [the person requested] by the appropriate authorities of the State entitled to exercise rights of protection cannot be effected’. Where extradition is not granted, art. 8 provides that the State in which the alleged offender is found ‘shall … be obliged, without exception whatsoever and whether or not the offence was committed in its territory’ to submit the case for prosecution.

340  See, for example, art. 16, 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft; art. 7(1) CAT84; art. 14, 1985. Inter-American Convention to Prevent and Punish Torture, OAS TS 67; art. VI, 1994; Inter-American Convention on Forced Disappearance of Persons 33 ILM 1429 (1994); art. 9(2), 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 29 ILM 91 (1990); art. 10(4), 1984; Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363; art. 7, 1957 European Convention on Extradition, ETS No 24; art. IV, 1987 South Asian Association for Regional Cooperation Regional Convention on Suppression of Terrorism; art. 6(h), 1998 Arab Convention on the Suppression of Terrorism; art. 6(8), 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism; art. 8(4), 1999 OAU Convention on the Prevention and Combating of Terrorism; art. 7, 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, 860 UNTS 105; art. 7, 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 947 UNTS 177; art. 7, 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1035 UNTS 167; art. 8(1), 1979 International Convention against the Taking of Hostages, 1316 UNTS 205; art. 10, 1980 Convention on the Physical Protection of Nuclear Material, 1456 UNTS 101.

341  Given that the ‘obligation’ only arises where the State ‘has substantial grounds’ (that is, it has a discretion), it must be considered imperfect. That non-refoulement is obligatory does not entail either a duty to grant asylum or a duty not to expel; see further below, and Ch. 7.

342  Australian legislation requires the Attorney-General to consider in extradition cases whether removal would breach art. 33 CSR51 or art. 3 CAT84, whereas asylum seekers’ claims are assessed only against the former: Extradition Act 1998 (Cth), s. 22(3)(b).

343  See Executive Committee Conclusion No. 17 (1980) (emphasis supplied); Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/586, para. 16. The Sub-Committee’s recommendations regarding the refugee, recognized in one State, whose extradition is then sought from another State in which he or she is temporarily visiting (UN doc. A/AC.96/586, para. 16, conclusions 8 and 9) were not adopted by the Executive Committee.

344  As the Argentine delegate reiterated at the Executive Committee in 1989, ‘While extradition was a legitimate practice in combating crime, it was inadmissible in international law in the case of a refugee’: UN doc. A/AC.96/SR.442, para. 46. Later in the same session, the US delegate appeared to qualify his country’s position: ‘Concerning the extradition of refugees, the United States Government reserved its position on the application of the 1951 Convention and the 1967 Protocol to persons against whom extradition proceedings had been initiated until the courts hearing their cases had taken a formal position on them’: ibid, para. 84. Given the ambiguity and general lack of clarity, one cannot be certain whether, in the context of extradition proceedings (which involve both a judicial process and an executive decision), the United States will or will not take refugee status into account. If it chooses to ignore status in the case of one who is not excluded or otherwise within the exceptions to non-refoulement, then violation of international obligations will result.

345  [1971] 1 WLR 987.

346  Bereciartua-Echarri, No. 85.234, Recueil Lebon, (1 Apr. 1988); Iogna-Prat, M., ‘L’Affaire Bereciartua-Echarri,’ 1 IJRL 403 (1989).

347  Schweizerisches Bundesgericht, Ref. 1A.127/1990/tg, 18 Dec. 1990; abstracted as Case Abstract No. IJRL/0152: 5 IJRL 271 (1993). In its 1980 paper on extradition submitted to the Sub-Committee (UN doc. EC/SCP/14, 27 Aug. 1980), UNHCR stressed that the principle of speciality offered no defence against excessive punishment or prejudicial treatment. The court agreed, and remarked that it was no alternative to protection by non-extradition. The court further took into account art. 3 of the European Convention on Extradition, which it characterized as the concrete expression of non-refoulement in extradition law, additionally capable of protecting persons who had committed serious non-political crimes, and so might be denied protection under the 1951 Convention.

348  Decision No. Up-78/00 of 29 June 2000, cited in Kapferer, ‘The Interface between Extradition and Asylum’, above, n. 332, para. 227.

349  Schweizerisches Bundesgericht, (11 Sept. 1996), BGE 122 II 373, 380–1.

350  Schweizerisches Asylrekurskommission, EMARK 2001/4; Conseil d’Etat, (10 Apr. 1991), Kilic, as cited in Kapferer, ‘The Interface between Extradition and Asylum’, above n. 332, para. 229.

351  Altun v. Federal Republic of Germany (10308/83), 36 D & R 201. See also Kirkwood v. United Kingdom (1984) 6 EHRR 373; Van den Wyngaert, C., ‘Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box?’, 39 ICLQ 757 (1990).

352  European Council on Refugees and Exiles, ‘Comments on the Commission Working Document on the Relationship between Safeguarding Internal Security and Complying with International Protection Obligations and Instruments’ (London, May 2002) <http://www.ecre.org/statements/security.shtml> (4 Feb. 2004), para. 2.3.2; see also Kindler v. Canada, Comm. No. 470/1991 (30 Jul. 1993): UN doc. CCPR/C/48/D/470/1991, para. 6.7.

353  Kapferer, above, n. 332, para. 241; see also paras. 134–7. For political vis-à-vis legal considerations, see Youssef v. Home Office [2004] EWHC 1884 (QB); Goodwin-Gill, G. S. & Husain, R., ‘Diplomatic Assurances and Deportation’, paper given at the JUSTICE/Sweet & Maxwell Conference on Counter-Terrorism and Human Rights, 28 Jun. 2005.

354  UN News Service, ‘Bilateral Deportation Agreements Undermine International Human Rights Law—UN Expert’, (26 Oct. 2005).

355  See Recommendation No. R(80)9 of the Committee of Ministers of the Council of Europe to the effect that governments should not allow extradition to States not party to ECHR50 where there are substantial grounds to believe that art. 3(2) of the European Convention on Extradition would otherwise be applicable.

356  Generally on States’ power of expulsion, see Goodwin-Gill, Movement of Persons, above, n. 2, 201–310; and on expulsion to a particular State, 218–28. See also Hathaway, Rights of Refugees, (2005) 412, 657–95 (including references to asylum seekers generally and not just to ‘refugees lawfully in the territory’, as provided in art. 32 CSR51).

357  See also art. 13 ICCPR66; Clark, T., ‘Human Rights and Expulsion: Giving Content to the Concept of Asylum’, 4 IJRL 189 (1992); Tiberghien, F., ‘L’expulsion des réfugiés: Problèmes legislatifs et jurisprudentiels’, Doc. réf., no. 73, 5/14 mars 1989, Suppl., CJ, 1–8. The importance of procedural safeguards is perhaps best illustrated by cases in which they have been denied. In Agiza v. Sweden, the Committee against Torture found that Sweden had violated art. 3 CAT84 by expelling a suspected terrorist to Egypt, where he was tortured. The Committee explained that normally, individuals could appeal to the Swedish Migration Board and the Aliens Appeals Board for review of a decision to expel, and that these procedures satisfied art. 3 requirements of an effective, independent, and impartial review. ‘In the present case, however, due to the presence of national security concerns, these tribunals relinquished the complainant’s case to the Government, which took the first and at once final decision to expel him. The Committee emphasizes that there was no possibility for review of any kind of this decision. The Committee recalls that the Convention’s protections are absolute, even in the context of national security concerns, and that such considerations emphasise the importance of appropriate review mechanisms. While national security concerns might justify some adjustments to be made to the particular process of review, the mechanism chosen must continue to satisfy art. 3’s requirements of effective, independent and impartial review. In the present case, therefore, on the strength of the information before it, the Committee concludes that the absence of any avenue of judicial or independent administrative review of the Government’s decision to expel the complainant does not meet the procedural obligation to provide for effective, independent and impartial review required by art. 3 of the Convention.’: Agiza v. Sweden, UN doc. CAT/C/34/D/233/2003 (24 May 2005), para. 13.8.

358  See, for example, the German Aufenthaltsgesetz §56(1) (since 1 Jan. 2005): ‘Ein Ausländer, der … 5. als Asylberechtigter anerkannt ist, im Bundesgebiet die Rechtstellung eines ausländischen Flüchtlings genießt oder einen von einer Behörde der Bundesrepublik Deutschland ausgestellten Reiseausweis nach dem Abkommen über die Rechtstellung für Flüchtlinge vom 28. Juli 1951 … besitzt, genießt besonderen Ausweisungsschutz. Er wird nur aus schwerwiegenden Gründen der öffentlichen Sicherheit und Ordnung ausgewiesen.’; Asylum Law 1998 (loi sur l’asile) of Switzerland, art. 65: ‘Le réfugié ne peut être expulsé que s’il compromet la sûreté intérieure ou extérieure de la Suisse ou s’il a porté gravement atteinte à l’ordre public. L’article 5 est réservé.’

359  See, for example, Yugoslav Refugee (Germany) case: 26 ILR 496; Homeless Alien (Germany) case: 26 ILR 503; Refugee (Germany) case: 28 ILR 297; Expulsion of an Alien (Austria) case: 28 ILR 310; R v. Immigration Appeal Tribunal, ex p. Musisi [1984] Imm AR 175; Bugdaycay v. Secretary of State for the Home Department [1987] 1 AC 514 (HL); Barrera v. Canada (1992) 99 DLR (4th) 264; see generally NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6, 213 ALR 668. See also Henckaerts, J.-M., Mass Expulsion in Modern International Law and Practice, (1995), 99–107.

360  Robinson, Commentary, 157.

361  In the Refugee (Germany) case (above note) the Federal Administrative Court held that a refugee unlawfully in the country could be expelled, provided he or she was not returned to the country in which life or freedom would be threatened. An almost identical conclusion was reached in a 1974 US decision, Chim Ming v. Marks 505 F.2d 1170 (2nd Cir.). In the Expulsion of an Alien (Austria) case (above note), the Austrian Supreme Court observed when upholding an expulsion order that it merely required a person to leave the State, but did not render him or her liable to be returned to a specific foreign country.

362  See Ch. 6; Agiza v. Sweden UN doc. CAT/C/34/D/233/2003 (24 May 2005).

363  Executive Committee General Conclusion on International Protection No. 102 (2005), para. (j), recalling its earlier Conclusion Nos. 6 (1977) and 7 (1977).

364  See Ad hoc Committee on Statelessness and Related Problems, ‘Memorandum by the Secretary-General’, UN doc. E/AC.32/2, (3 Jan. 1950), 46.

365  See Goodwin-Gill, Movement of Persons, above, n. 2, 20–1, 44–6. 136–7.

366  Executive Committee Conclusion No. 7 (1977).

367  For a comprehensive discussion of art. 31, including an analysis of national laws and State practice, see Goodwin-Gill, G. S, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-Penalization, Detention, and Protection’ in Feller, E., Türk, V., Nicholson, F., eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (2003), 187 (hereafter, Goodwin-Gill, ‘Article 31’).

368  Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Summary Record of the 14th Meeting’, Geneva, (10 Jul. 1951), UN doc. A/CONF.2/SR.14 (22 Nov. 1951), (Mr Herment, Belgium), 12. See Hathaway, Rights of Refugees, (2005), above, n. 70, 396 for comparative judicial decisions on this issue.

369  Expert Roundtable, ‘Summary Conclusions: Article 31 of the 1951 Convention’ (Geneva, 8–9 Nov. 2001), paras. 10(b)–(d), in Feller, Türk & Nicholson, Refugee Protection in International Law, above, n. 367.

370  R. v. Uxbridge Magistrates’ Court, ex p. Adimi [2001] QB 667.

371  See further below Ch. 7. Hathaway, Law of Refugee Status, (1991), 46–50.

372  Goodwin-Gill, ‘Article 31’, above, n. 367, 196; Expert Roundtable, ‘Summary Conclusions’, above, note, para. 10(e).

373  Adimi, [2001] QB 667, 678. This is supported by Executive Committee Conclusion No. 15 (1979), para. (h).

374  In Australia, secondary movement can be used as a bar to asylum. Reg. 200.212.(1) of the Migration Regulations 1994 (Cth) provides that individuals who have resided for a continuous period of at least seven days in a country in which they could have sought and obtained effective protection are ineligible for a permanent protection visa, although under sub-s. (2), the Minister may waive this requirement. In practice, it is typically waived: Refugee and Immigration Legal Centre, ‘Discussion Paper: Recent Developments and Future Directions’, (Aug. 2005), <http://www.rile.org.au/repsubs.htm>. See Hathaway, Rights of Refugees, (2005), 372–3 for other examples.

375  In the UK, see R. (Limbuela) v. Secretary of State for the Home Department [2006] 1 AC 396, [2005] UKHL 66. Whereas s. 95 of the Immigration and Asylum Act 1999 authorized the Secretary of State to provide support to asylum seekers who appeared to be destitute, s. 55 of the Nationality, Immigration and Asylum Act 2002 revoked that authority where the Secretary of State considered that the asylum claim had not been made as soon as reasonably practicable after the asylum seeker’s arrival in the UK. In ‘late’ cases, support could only be provided when the Secretary of State considered it necessary to avoid a breach of the individual’s rights under ECHR50: s. 55(5). The court held that the Secretary of State had a positive obligation to provide support, ‘when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life’: para. 5 (Lord Bingham). In Australia, asylum seekers who arrive on a visa of some kind are denied work rights and Medicare support if they do not lodge their asylum claim within 45 days of arrival: Migration Regulations 1994, (Cth) reg. 2.20.

376  Van Duzen v. Canada, Comm. No. 50/1979, UN doc. CCPR/C/15/D/50/1979 (7 Apr. 1982), para. 10.2; see also Opsahl, T. & de Zayas, A., ‘The Uncertain Scope of Article 15(1) of the International Covenant on Civil and Political Rights’, (1983) Canadian Human Rights Yearbook 237.

377  See, for example, Decision of the Social Security Commissioner in Case No. CIS 4439/98 (25 Nov. 1999), para. 16, where Commissioner Rowland found that treatment less favourable than that accorded to others, imposed on account of illegal entry, constitutes a penalty under art. 31, unless it is objectively justifiable on administrative grounds.

378  See Expert Roundtable, ‘Summary Conclusions’, above, n. 369, para. 11(a). ‘For the purposes of Article 31(2), there is no distinction between restrictions on movement ordered or applied administratively, and those ordered or applied judicially. The power of the State to impose a restriction must be related to a recognized object or purpose, and there must be a reasonable relationship of proportionality between the end and the means. Restrictions on movement must not be imposed unlawfully and arbitrarily (emphasis added). Cf. the majority’s view in Al-Kateb v. Goodwin [2004] HCA 37.

379  Note Executive Committee Conclusion No. 15 (1979), para. (i): ‘While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration.’

380  Para. B.2(a).

381  Para. (a)(vi).

382  See further Ch. 9, s. 1.1 on detention.

383  Art. 2(1) ICCPR66; art. 1 ECHR50; art. 1 ACHR69.

384  On State practice, see Goodwin-Gill, ‘Article 31’, above n. 367, 197–214; Dunstan, R., ‘United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention’, 10 IJRL 205 (1998); cf. Immigration and Asylum Act 1999, s. 31; Hathaway, Rights of Refugees, (2005), 372–3.

385  UN doc. A/CONF.2/SR.13, 12-14 (1951) (Canada, United Kingdom). Cf. art. 5, 1954 Caracas Convention on Territorial Asylum; see below, Annexe 2, No. 3.

386  See further below, Ch. 6, s. 6.3, on the implications of non-refoulement through time; and Ch. 9, s.1.1 on detention. See also UNHCR, Safeguards for Asylum Seekers and Refugees in the Context of Irregular Migration into and within Europe: A Survey of the Law and Practice of 31 European States (Jun. 2001); Lawyers Committee for Human Rights, Review of States’ Procedures and Practices relating to Detention of Asylum Seekers (Sept. 2002).

387  In Orantes-Hernandez v. Meese 685 F. Supp. 1488 (C.D.Cal. 1988), aff’d sub nom. Orantes-Hernandez v. Thornburgh 919 F. 3d 549 (9th Cir., 1990), the court found that substantial numbers of Salvadoran asylum seekers were signing ‘voluntary departure’ forms under coercion, including threats of detention, deportation, relocation to a remote place, and communication of personal details to their government. See also Amnesty International British Section, Playing Human Pinball, (1995), 59–61 (coercion to effect ‘voluntary departure’ to ‘safe third country’).

388  See, for example, the United States Immigration and Nationality Act 1952, 18 USC § 2199.

389  As a port of call State, Australia had only limited success in arguing for this proviso with respect to flag States Greece, Italy, and Denmark. Most stowaways in the period 1979–82 were ultimately allowed to disembark and to lodge claims for refugee status; a few were resettled with relatives in third States. None of the States involved had ratified the 1957 International Convention relating to Stowaways, which still awaits entry into force. Art. 5(2) provides that in considering application of the Convention, ‘the Master and the appropriate authorities of the port of disembarkation will take into account the reasons which may be put forward by the stowaway for not being disembarked at or returned to’ various ports or States. Art. 5(3) declares that, ‘The provisions of [the] Convention shall not in any way affect the power or obligation [sic] of a Contracting State to grant political asylum.’ Art. 3 provides that where a stowaway is otherwise unreturnable to any other State, he may be returned to ‘the Contracting State whose flag was flown by the ship in which he was found’, unless subject to ‘a previous individual order of deportation or prohibition from entry’. For text, see Conférence diplomatique de droit maritime, 10ème session, Bruxelles, 491–503, (1958). Both the United Kingdom and the Netherlands opposed these aspects of the Convention on the ground that they made too many inroads on national immigration control: ibid., 200, 436–7, 441–3, and 632–3.

390  Report of the Working Group on problems related to the rescue of asylum-seekers in distress at sea: UN doc. EC/SCP/21, (1982), paras. 22ff.

391  Report of the 39th Session: UN doc. A/AC.96/721 (13 Oct. 1988), para. 25. Greece proposed deletion of the words ‘whenever possible’, and the phrase beginning, ‘provided that this does not necessarily imply … ’: ibid., para. 36.2. See also UNHCR, Note on Stowaway Asylum-Seekers: UN doc. EC/SCP/51 (22 Jul. 1988); Report of the Sub-Committee of the Whole on International Protection: UN doc. A/AC.96/717 (3 Oct. 1988), paras. 36–42; Venezuela: UN doc. A/AC.96/SR.431, para. 7; Australia: ibid., para. 9 (1988).

392  Given that the 1957 Convention has not yet entered into force, the main instrument on the treatment of stowaways is the IMO, Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases (Res. A.871 (20), adopted 1997), the provisions of which are reflected in 2002 amendments to the 1965 Convention on Facilitation of International Maritime traffic (amendments adopted 10 Jan. 2002, entered into force 1 May 2003). Regional agreements on responsibility for determining asylum claims (such as the Dublin Regulation) may also be relevant: see, for example, dispute between Italy and Malta discussed in Migration Policy Group, ‘Migration News Sheet’, (Nov. 2004), 13. The IMO compiles State reports of stowaway incidents, for example, IMO, ‘Reports on Stowaway Incidents’, Jan. to Mar. 2005, FAL.2/Circ.88 (31 Mar. 2005).

393  IMO, Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases (Res. A.871 (20), adopted 1997), para. 4.1.

394  Cf. Yiu Sing Chun v. Sava 708 F.2d 869 (2nd Cir., 1983), holding that under the 1980 United States Refugee Act, alien stowaways are entitled to an evidentiary hearing on their asylum applications. Such proceeding is now provided in the asylum regulations: 8 CFR §253.1(f).

395  For detail of the Australian and US interception programmes, see van Selm, J. & Cooper, B., The New ‘Boat People’: Ensuring Safety and Determining Status (2006).

396  ‘Operation Relex II’ remains in operation as at Sept. 2006: Australian Department of Defence <http://www.defence.gov.au/globalops.cfm>.

397  For examples, see Selm & Cooper, above, n. 395. Italy has engaged in numerous attempts to turn around smuggling vessels from Albania (cf. Xhavara v. Italy and Albania, App. No. 39473/98 (11 Jan. 2001) (inadmissible)), or divert boats from North Africa, but has not boarded boats like the US Coast Guard. In Oct. 2004, a new naval operation called ‘Neptune 3’ began patrolling the Mediterranean with Italian and Maltese vessels and planes: Migration Policy Group, ‘Migration News Sheet’ (Nov. 2004), 13.

398  UNHCR Global Report 2004, ‘Western Europe’, 452–3.

399  UN News Service, ‘UN Refugee Agency Calls on Mediterranean Countries to Recognize Refugee Rights’ (25 Nov. 2005).

400  Art. 1, 1958 Geneva Convention on the High Seas; art. 86, 1982 UN Convention on the Law of the Sea (UNCLOS82).

401  Art. 2, 1958 Geneva Convention; art. 87 UNCLOS82.

402  Art. 6, 1958 Geneva Convention; arts. 91, 92 UNCLOS82.

403  Under the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, UNGA res. 55/25. Annex III (adopted 15 Nov. 2000, entered into force 28 Jan. 2004), art. 8, States may board vessels without a flag State. However, States must simultaneously respect their non-refoulement obligations.

404  Contrast the views of Churchill, R. & Lowe, A. V., The Law of the Sea (3rd edn, 1999), 214 with McDougal, M.S., & Burke, W. T., The Public Order of the Oceans (1962), 1084–5.

405  See arts. 14–20, 24, 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone; arts. 17–26, 33 UNCLOS82.

406  Art. 22, 1958 Geneva Convention on the High Seas; art. 110 UNCLOS82. Because of doubts as to the obligation, if any, to submit to visit and search, O’Connell suggests that ‘the only safe course to assume is that a right of boarding exists only under the law of the flag’: O’Connell, D. P., The International Law of the Sea, vol. II, (Shearer, I., ed., 1984), (hereafter O’Connell, Law of the Sea, Vol. II, (1984)), 801–2. Cf. Molvan v. Attorney-General for Palestine [1948] AC 351, which is some authority for the view that even the ‘freedom of the open sea’ may be qualified by place or circumstance. In that case, the Privy Council found that no breach of international law resulted when a ship carrying illegal immigrants bound for Palestine was intercepted on the high seas by a British destroyer, and escorted into port where the vessel was forfeited. The Board nevertheless considered relevant the fact that the ship in question flew no flag, and could not therefore claim the protection of any State.

407  Executive Order no. 12324, Interdiction of Illegal Aliens, s. 2(c)(3), which continued: ‘ … or appropriate laws of a foreign country [with which an agreement exists]; provided, however, that no person who is a refugee will be returned without his consent’.

408  See generally Migration Act 1958 (Cth), ss. 245A–245H. Section 245C provides that outside the territorial sea of a foreign country, the Commander of a Commonwealth ship or aircraft chasing a ship may use ‘any reasonable means consistent with international law to enable boarding of the chased ship’, including ‘where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding’.

409  Executive Committee Standing Committee (18th Meeting), ‘Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach’, UN doc. EC/50/SC/CRP.17, (9 June 2000), para. 7.

410  Corfu Channel case, ICJ Rep., 1949, 4, at 22; Brownlie, I., Principles of Public International Law, (6th edn., 2003), 26–7 (hereafter, Brownlie, Principles).

411  Brownlie, I., International Law and the Use of Force by States, (1963), 264 ff., 278–9. Schwarzenberger, G. & Brown, L., A Manual of International Law, (6th edn.), 150. On the distinction between self-defence and self-help, see Bowett, D., Self-Defence in International Law, (1958), 11–12, but see Migration Act 1958 (Cth), s. 245C.

412  Brownlie, Principles, 448.

413  Cf. Johnson, D. H. N. ‘Refugees, Departees and Illegal Migrants’ 9 Sydney LR 11 (1979–82), at 30–1; Bowett, Self-Defence, 22.

414  See arts. 14, 19, and 24, 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone; arts. 17–20, 27, 33 UNCLOS82. As Brownlie points out, coastal States’ powers are essentially powers of police and control: Principles, 189–90.

415  Cf. Johnson, below, n. 433 and accompanying text.

416  ‘Regulation’ does not necessarily imply the exercise of control; in principle, the law of the flag State governs the internal affairs of a ship, while neither civil nor criminal jurisdiction should be exercised, absent any actions prejudicial to the peace, good order, or security of the coastal State: art. 16, 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone; cf. art. 21 UNCLOS82. Moreover, the power to suspend innocent passage temporarily in certain areas is qualified by the requirement that this be essential for the protection of security: art. 16(3), 1958 Geneva Convention; art. 25(3) UNCLOS82, and it is arguably not intended to be used against specific vessels, or for unrelated reasons.

417  Pallis, M., ‘Obligations of States towards Asylum Seekers at Sea: Interactions and conflicts between Legal Regimes’, 14 IJRL 329, 356 (2002), although see also Churchill & Lowe, above, n. 404, 85–6 who see the exhaustiveness of provisions to be open to question.

418  Pallis, above, n. 357.

419  O’Connell, D. P., The International Law of the Sea, vol. I, (Shearer, I., ed., 1982), 80–1, (hereafter, O’Connell, Law of the Sea, Vol I, (1982)), observes that art. 1 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone ‘allows for the maximum implications that may be drawn from the concept of sovereignty, but it does not impose those implications on the coastal State; it leaves them to be drawn in municipal law’. He notes further that Ratification ‘ … does not necessarily and automatically have the effect of altering the natural boundary. If that boundary encompasses the territorial sea, the Convention endorsed this by securing the recognition of the maximum implications on the part of all other States. If that boundary does not already encompass it, Ratification by itself would not seem to affect the situation … ’

420  The Ship ‘May’ v. R. [1931] SCR 374.

421  O’Connell, Law of the Sea, vol. II, (1984), 853–8, at 856, citing authority for the proposition that if a ship incurs trouble while engaged in an illegal enterprise against the State in whose waters it takes refuge, it cannot claim immunity from the local jurisdiction, even if entry was indeed occasioned by distress. See also art. 18(2) UNCLOS82, on the meaning of ‘passage’: ‘passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’.

422  Churchill & Lowe, above, n. 404, 63.

423  1929 US v. Mexico (Kate A. Hoff claim), (1951) 4 UNRIAA 444, 447.

424  Røsæg, E., ‘Refugees as Rescuees: The Tampa Problem’, Scandinavian Institute of Maritime Law Yearbook 2002, 43, 57, citing Churchill & Lowe, above, n. 404, 63; Brown, E. D., The International Law of the Sea, vol. 1 (1994), 39; Anklagemyndigheden v. Poulsen, Case C-286/90, [1992] ECR I-6019 (in relation to fishery rules).

425  Fonteyne, J.-P., ‘Asylum-Seekers Afloat in Uncertainty’, Canberra Times, 30 Aug. 2001; White, M., ‘The Tampa and the Law’, The Nautical Institute, London, (2001), 5–7. See below, s. 4.3.

426  Arts. 19, 25 UNCLOS82; McDougal & Burke, The Public Order of the Oceans, (1962), 187–92, 272.

427  Art. 24, 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, now extended by art. 33 UNCLOS82.

428  In Croft v. Dunphy [1933] AC 156, 164–5, for example, the Privy Council, upholding Canadian Customs Act provisions on ‘hovering’, took account of the fact that they did not apply to foreign vessels in the area of extended jurisdiction.

429  O’Connell, Law of the Sea, vol. I, (1982), 1058.

430  See McNair, International Law Opinions, vol. 2, (1956), 186 (enforcement of revenue laws in respect to vessels not yet within maritime jurisdiction); Jessup, P., The Law of Territorial Waters and Maritime Jurisdiction, (1927), 75–6, 242ff. O’Connell, Law of the Sea, vol. II, (1984), 1045–7, identifies Canada as the first State in modern times to assert a revenue jurisdiction independent of the territorial sea.

431  McDougal & Burke, The Public Order of the Oceans, (1962), 584, 585ff. See also O’Connell, Law of the Sea, vol. II, (1984), 1057–61, noting the ‘anticipatory’ nature of contiguous zone powers.

432  The powers allowed in the contiguous zone are only those permitted by international law: O’Connell, Law of the Sea, vol. I, (1982) 1058–9; also Morin, J.-Y., ‘La zone de pêche exclusive du Canada’, 2 Can. YBIL 77, 86 (1964),: ‘la notion de zone contigue … est très stricte et ne comporte aucune extension de la compétence de l’Etat côtier sur les eaux situées au delà de sa mer territoriale … ’. He identifies the contiguous zone as forming part of the high seas, and as defined, ‘précisement par l’absence de toute souverainété étatique. Il n’est pas douteux que, dans la pratique, certains Etats voient dans la zone contigue le prolongement de leur mer territoriale et prétendent y exercer les mêmes compétences douanières ou fiscales, mais nous convenons … que ces Etats sont en opposition avec le droit international tel qu’établi par les conventions sur le droit de la mer.’

433  Johnson, D. H. N., ‘Refugees, Departees and Illegal Migrants’, 9 Sydney LR (1979–82), 11, 32.

434  Some attention would always need to be given to a vessel’s next likely port of call, if all information available indicated that refugees, rather than migrants, were on board.

435  Migration Act 1958 (Cth), ss. 245C, 245F (see generally Div. 12A).

436  Obviously, all will turn on whether the flag State, if any, decides to object. The US interdiction programme was based upon the Haitian government’s agreement thereto. The US-Great Britain Treaty of 1924 (concluded in the context of prohibition) included express agreement by the British to raise no objections to the boarding of private vessels flying the British flag and outside US territorial waters. Enquiries might be undertaken to determine whether the vessel was endeavouring to violate US laws, and vessels might be seized on reasonable cause: Jessup, Territorial Waters, above n. 430, 289–93.

437  Such representations were indeed made when the use of force (such as towing out to sea at high speed) resulted in sinking and loss of life of asylum seekers arriving directly from Vietnam in Singapore and Malaysia in 1979.

438  See O’Connell on practical intervention and enforcement problems, which flow from international law restrictions on the use of force, and on the overall requirements of the necessary vessels: Law of the Sea, vol. II, (1984), 1064 and n. 25. See also at 1071ff. on the degree of force which may be used.

439  See UN doc. E/AC.32/L.32/Add.1 (10 Feb. 1950), comment on draft article 28 (expulsion to country of persecution).

440  Goodwin-Gill, G. S, ‘Non-Refoulement and the New Asylum Seekers’, 26 Virg. JIL 897, 902 (1986).

441  Ibid. On interception and non-arrival policies, see Ch. 7. In the absence of protest by States, the entitlement to invoke the responsibility of a State acting in violation of its obligations under the 1951 Convention falls to UNHCR, which States parties acknowledge as having the duty to supervise its application: art. 35 CSR51.

442  See below, 283–4.

443  The IMO cites as an ‘excellent example of this inter-agency co-operation’ the rescue in June 2006 of twenty-two people of various nationalities from the passenger ship, the Noordam, in the Aegean Sea between the Greek island of Samos and the coast of Turkey. However, it remains to be seen whether the same cooperation will be forthcoming with respect to asylum seekers. See <http://www.imo.org/Newsroom/mainframe.asp?topic_id51396>.

444  The IMO Guidelines on the Treatment of Persons Rescued at Sea, partially incorporated through amendments to the SAR and SOLAS Conventions (below, n. 283–4) suggest that a ship’s master should take protection needs into account. Unless he or she is acting in an official State capacity, the master, as a non-State actor, is not directly bound by international law, but is subject to national implementation measures.

445  See, for example, art. 11, 1910 Brussels International Convention with respect to Assistance and Salvage at Sea: 1 Bevans 780 (1968); art. 45 (1), 1929 International Convention on the Safety of Life at Sea: 136 LNTS 82; ch. V, Reg. 10a, 1960 International Convention on the Safety of Life at Sea; art. 12, 1958 Convention on the High Seas; 1979 International Convention on Maritime Search and Rescue (‘SAR Convention’), especially the 2004 amendments (in force 1 Jul. 2006); art. 98 UNCLOS82. The duty is so fundamental that it applies to rescue of the enemy: art. 16, 1958 Geneva Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention.

446  See the view of the International Law Commission with respect to its proposed draft of art. 12 of the 1958 Convention on the High Seas: ‘Report of the International Law Commission to the General Assembly’ (1956) II YB ILC 253, 281; see UN doc. A/3159 (1956). On the duty to rescue as customary international law, see Pallis, above, n. 417, 333–4, and generally, see Røsæg, above, n. 424.

447  Røsæg notes, however, that this rule is frequently breached by shipmasters: above, n. 424, 49–50.

448  This is not required under UNCLOS82; see UNHCR, ‘Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea’ (18 Mar. 2002), para. 5; cf. Norwegian Maritime Code, s. 135(3).

449  Art. 98(2) UNCLOS82; SOLAS, reg. V-7(1) (formerly reg. V-15(a)); art. 2.1.1, Annex, 1979 Search and Rescue Convention.

450  Art. 2.1.10, Annex, 1979 Search and Rescue Convention.

451  Art. 1.1.3.2, Annex, 1979 Search and Rescue Convention; see further below.

452  See above, s. 4.2.1.

453  See generally, Grant, B., The Boat People, (1980), 68–72; Grahl-Madsen, Status of Refugees, vol. 2, 271–2; Pugash, J. Z., ‘The Dilemma of the Sea Refugee: Rescue without Refuge’, 18 Harv. ILJ 577 (1977); Pallis, M., ‘Obligations of States towards Asylum Seekers at Sea: Interactions and conflicts Between Legal Regimes’, 14 IJRL 329 (2002); Executive Committee Standing Committee (18th Meeting), ‘Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach’, UN doc. EC/50/SC/CRP.17 (9 Jun. 2000). Art. 11 of the 1951 Convention requires contracting States to give ‘sympathetic consideration’ to the establishment within their territory of ‘refugees regularly serving as crew members’ on ships flying their flag. At the 1951 Conference, it was stated that this provision was intended to benefit genuine seamen, not those escaping by sea: UN doc. A/CONF.2/SR.12, 5 (1951). Likewise, the 1957 Agreement relating to Refugee Seamen (updated by the 1973 Protocol thereto) offers little solace to the asylum seeker at sea. Art. 1 defines a ‘refugee seaman’ as a refugee within the meaning of the Convention and Protocol, who ‘is serving as a seafarer in any capacity on a mercantile ship, or habitually earns his living as a seafarer on such ship’. The objective is to determine the links which a refugee seaman may have with contracting States, with a view to establishing entitlement to residence and/or the issue of travel documents. The qualifying links are such as generally to exclude the seafaring asylum seeker; for example, 600 days service under the flag of a contracting State, previous lawful residence in a contracting State, or travel documents previously issued by a contracting State: arts. 2, 3. ‘Sympathetic consideration’ is to be given to extending the agreement’s benefits to those not otherwise a qualifying: art. 5.

454  See the 2nd edn. of this work for discussion of the legal developments during this period.

455  Report of the 29th Session of the Executive Committee: UN doc. A/AC.96/559, para. 38.E. See Executive Committee Conclusions No. 2 (1976), No. 14 (1979), No. 15 (1979), No. 20 (1980), No. 21 (1981), No. 23 (1981), No. 25 (1982), No. 26 (1982), No. 29 (1983), No. 31 (1983), No. 33 (1984), No. 34 (1984), No. 36 (1985), No. 38 (1985), No. 41 (1986), No. 46 (1987), No. 47 (1987), No. 97 (2003).

456  Executive Committee Conclusion No. 15, para. (c).

457  Executive Committee Conclusion No. 23, para. 3.

458  Executive Committee Conclusion No. 52, Preamble; see also Conclusions Nos. 14, 15, 23.

459  Executive Committee Conclusion No. 23.

460  UNHCR, ‘Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea’, (18 Mar. 2002), paras. 25–6, 30–1. See also Executive Committee Conclusion No. 14 (1979), para. c; Executive Committee Conclusion No. 15 (1979), para. (c); Executive Committee Conclusion No. 23 (1981), para. 3.

461  UNHCR, ‘Rescue-at-Sea: specific Aspects relating to the Protection of Asylum-Seekers and Refugees’, Expert Roundtable, Lisbon, (25–26 Mar. 2002) Summary of Discussions, (11 Apr. 2002), para. 13.

462  UNHCR, ‘Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea’, (18 Mar. 2002), paras. 25–26.

463  Schaffer, R. P., ‘The Singular Plight of Sea-Borne Refugees’, 8 Aust. YB Int’l Law 213 (1978–80); Pugash, J. Z., ‘The Dilemma of the Sea Refugee: Rescue without Refuge,’ 18 Harv. ILJ 577 (1977), cited in Crock, M., ‘In the Wake of the Tampa: conflicting Visions of International Refugee Law in the Management of Refugee Flows’, 12 Pacific Rim and Policy Journal 49, 59 (2003).

464  At the 1981 Executive Committee meeting, one speaker suggested that arrangements relating to rescue and resettlement ‘already reflected the principle of burden-sharing between maritime and coastal States and should therefore be maintained’: UN doc. A/AC.96/601, para. 52. See also UNHCR, ‘Rescue-at-Sea’, above n. 460, paras. 13, 15.

465  For the facts, see Rothwell, D., ‘The Law of the Sea and the M/V Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’, 13 Public Law Review 118, 118 (2002). The international community’s lack of support for the Australian response was perhaps best reflected in UNHCR’s award of the 2002 Nansen Medal to the captain and crew of the Tampa. Note also the common practice of shifting responsibility on to the ship’s captain or owners, rather than the flag State, which mirrors the imposition of carrier sanctions on airlines which transport passengers who lack the requisite documentation to enter the destination country. This has led in some cases to crew forcing stowaways overboard: BBC News, ‘Ship Captain Held over Stowaways,’ (29 May 2004): <http://news.bbc.co.uk/2/hi/europe/3760731.stm>. Three Ukrainian sailors were charged with murder in a South African court after it was alleged that they had forced seven Tanzanian stowaways to jump overboard to avoid having to pay for their repatriation: BBC News, ‘Stowaways “Forced to Jump Ship”’ (6 Jan. 2006): <http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/4584276.stm>. On the costs of delay and deviation of route: Røsæg, above, n. 424, 46–7.

466  Australia asserted that the usual practice in maritime emergencies is for the rescuing vessel to continue on its planned route as closely as possible, and the appropriate port for disembarkation was accordingly Merak in Indonesia: Interview with Robert Illingworth, Deputy Secretary, Refugee Policy Branch, Dept. of Immigration, Multicultural and Indigenous Affairs, Sydney, 2 Apr. 2002, cited in Crock, ‘In the Wake of the Tampa’, above, n. 463, 55. See also Mathew, P., ‘Australian Refugee Protection in the Wake of the Tampa’, 96 AJIL 661, 671–2 (2002); Ruddock v. Vadarlis [2001] FCA 1329.

467  One year later, the Australian Immigration Minister described the arrivals as ‘unauthorized refugees brought to Australia by people smugglers’: Mr Ruddock (Australia): UN doc. A/AC.96/SR.562, para. 13 (2002).

468  On the issues of force majeure and necessity, due to impending deaths on board, see above n. 428 and accompanying text.

469  Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea, 22nd session, Agenda item 8, IMO Assembly res. A.920(22) (Nov. 2001).

470  UNHCR, ‘Note on International Protection’, 53rd session, UN doc. A/AC.96/965 (11 Sept. 2002) para. 21.

471  UNHCR, ‘Rescue-at-Sea’, above n. 461, para. 2.

472  Ibid., para. 6.

473  Ibid., para. 7.

474  Ibid., para. 9.

475  Ibid., para. 10.

476  UNHCR, ‘Note on International Protection’, UN GAOR, 53rd session, para. 20, UN doc. A/AC.96/965 (2002).

477  Agenda for Protection, (3rd edn., Oct. 2003), 47.

478  The IMO’s Secretary-General recommended in Nov. 2001 that a UN inter-agency group undertake a review of existing legislation concerning the delivery of persons rescued at sea to a place of safety, irrespective of their nationality, status, and the circumstances in which they were found: Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea, 22nd session, Agenda item 8, IMO Assembly res. A.920(22) (Nov. 2001).

479  IMO Assembly resolution A.920(22) on ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (2001).

480  Amendments adopted May 2004, in force 1 Jul. 2006. The amendments were based on the already applicable IMO, Guidelines on the Treatment of Persons Rescued at Sea, MSC.167 (78). Chapter 5 of SOLAS incorporates a definition of search and rescue service, and there is a new regulation on shipmasters’ discretion, which make it clear that he or she has the sole discretion to make decisions necessary for the safety of life at sea. Chapter 2 of the SAR Convention defines ‘persons in distress’; Chapter 4 contains amendments relating to rescue coordination centres initiating the process of identifying the most appropriate places for disembarkation.

481  Amendments to SOLAS, Ch. 5; see also amendments to SAR, Ch. 2. This obligation pertains to the flag State, as well as nearby States that receive those rescued.

482  Amendments adopted 7 Jul. 2005, in force 1 Nov. 2006.

483  Statement by Ms Erika Feller, Director, Dept. of International Protection, UNHCR, to the 24th Meeting of the Standing Committee (Geneva, 25 Jun. 2002). UNHCR has, however, noted that the tradition is at risk—and not for the first time—in the Adriatric, the Indian Ocean, the Mediterranean, and elsewhere.

484  Executive Committee Conclusion No. 97 (2003). Compare the Clementine Maersk incident in June 2005, when a Danish ship rescued 27 asylum seekers in the Mediterranean and disembarked them at the next port of call, in the UK. The UK authorities conducted initial asylum interviews on board and then allowed the asylum seekers to disembark. This ‘demonstrates that international maritime law, custom, and moral imperatives can successfully harmonize in potentially treacherous rescue situations, and that international organizations, commercial shippers, insurance companies and states acting together can find a relatively tranquil solution’: van Selm & Cooper, above, n. 395, 27. See also Kessler, P., ‘UNHCR Thanks Danish Ship for Rescuing Asylum Seekers Stranded at Sea’, (8 Jun. 2005); <http://www.unhcr.org/cgi-bin/texis/vtx/news/opendoc.htm?tbl5NEWS&id542a70b5a4>.