The nature of non-refoulement principle as jus cogens
Non-refoulement is the core principle of international refugee protection that mandates the country of refuge not to deport the refugees and asylum seekers (de facto refugees) to a country where there is a substantial risk of being subjected to persecution because of the race, religion, nationality, membership of a particular social group or political opinion. Article 33(1) of the 1951 Convention relating to the status of refugees enshrined the non-refoulement mentioning that 'no contracting state shall expel or return 'refouler' a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
There is a constant debate concerning the nature of non-refoulement as jus cogens. International law scholarships, legal instruments, judicial precedents and refugee receiving countries are also divisive in recognising the principle as jus cogens albeit the non-refoulement is unanimously acknowledged as the principle of customary international law. Over time, non-refoulement has acquired both the components viz. state practice and opiniojuris to be accepted as a customary principle of international law.
A considerable number of states have ratified the 1951 Refugee convention and its 1967 protocol, as well as many countries have become parties to the regional instruments that incorporated the non-refoulement principle. The non-refoulement has been judicially applied in the regional courts and national courts in many cases where the judiciary has vehemently recognised the principle as customary international law. Notable case laws are; Soering v the United Kingdom, European Court of Human Rights, 1989, Chahal v. the United Kingdom, European Court of Human Rights, 19996 and Ktaer Abbas Habib Al Qutaifi v. Union of India &Ors, 1999 Cri.L.J.919, etc.
But when non-refoulement is claimed as jus cogens then the controversies and divisive opinions come in because of the constituent nature of non-refoulement principle in the legal framework of refugee protection.
Jus cogens is the cogent law from where no derogation is permitted and no reservation is allowed. But article 33(2) of 1951 Refugee convention categorically incorporated exceptions to the non-refoulement as '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'. These exceptions to non-refoulement are the inherent barriers to a unanimous recognition of non-refoulement as jus cogens.
Unlike most of the international conventions and treaties, there is no enforcing and authoritative body for the 1951 refugee convention and its 1967 Protocol that frustrates the jus cogens nature of the non-refoulement. For instance, in case of the violations of the Rome Statute and the Geneva conventions, states parties and perpetrators could be brought under the trial of the International Criminal Court whereas there is no mechanism in the 1951 refugee convention to try any state if it violates the non-refoulement.
Hence, there are scholarships, regional instruments and national case laws where the non-refoulement was pronounced as jus cogens. But it is still not recognised as jus cogens. The disharmonious arguments in favour and against the non-refoulement as jus cogens retain the principle as highly debatable in the current refugee protection discourse.
Tarek Rahman is pursuing LLM at South Asian University