June 25, 2024

Existinglaw

Law for politics

The Principle of Refoulement 

The principle of non-refoulement under Islamic law and international law:  complementing international legal protection in Muslim contexts -  Humanitarian Law & Policy Blog

Non-refoulement refers to the prohibition of returning or forcibly removing refugees to a country where they may face persecution, torture, or threats to their life or freedom.

The principle of non-refoulment is a fundamental aspect of international refugee law that safeguards the rights and protection of refugees. It is included in various international instruments, most notably the 1951 Refugee Convention, as well as other regional human rights treaties. 

What is the definition of a refugee? The 1951 Refugee Convention defines a refugee as a person who is outside their country of nationality or habitual residence and is unable or unwilling to avail themselves of the protection of that country due to a well-founded fear of persecution based on:

  • race, 
  • religion, 
  • nationality, 
  • political opinion, or 
  • membership in a particular social group. 

The principle of non-refoulement ensures that refugees are not sent back to a situation where their life, freedom, or human rights are at risk. The principle of non-refoulement is based on several key considerations:

  • It upholds the fundamental human rights and dignity of individuals who have fled their countries seeking safety. By preventing their return to a dangerous or life-threatening environment, this principle protects their right to life, freedom from torture, and other basic human rights.
  • The principle promotes international cooperation among countries in providing protection to refugees. It recognises that the obligation to protect refugees is not solely the responsibility of the country where they first arrive but should be shared globally.
  • Refoulement can lead to forced displacement and create a cycle of persecution, violence, and instability. By respecting non-refoulement, states contribute to international stability and peace.
  • By ensuring refugees are not forcibly returned to dangerous situations, this principle encourages the search for durable solutions for refugees. These solutions may include resettlement to a third country.
  • It has also become a part of customary international law, binding on all states regardless of whether they have ratified the specific treaties. This demonstrates its universal importance. 

As is the case with most things, the principle of non-refoulement faces challenges in practice. Some states may attempt to avoid their obligations under this principle by implementing strict border controls or other deterrence measures. This may prevent refugees from reaching their country. These actions raise concerns about the respect for refugee rights.

There is a global refugee crisis in many areas across the world including the Middle East, and regions in Africa. This has highlighted the importance of upholding the principle of non-refoulement. 

It raises the questions on the responsibilities of states, the need for solidarity, and the importance of respecting the rights and dignity of individuals fleeing persecution and violence.

As we have seen, the principle of non-refoulement is a cornerstone of international refugee law as it protects the rights and safety of refugees who have fled their homes due to persecution. This is especially important for ensuring human rights and promoting international cooperation.

Author info:

John Bui is the Principal Solicitor of JB Solicitors – a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years’ experience in family law and commercial litigation.