Human rights implications of the principle of non-refoulement

States are obliged for protection of refugees under international law on account of their membership of United Nations and signature or accession to International Refugee Instruments as well as International Human Rights Instruments. The legal basis for this international protection may either be customary international law or conventional international law. The basic customary international laws applicable to them are those pertinent fundamental human rights found in the International Bill of Human Rights. Hence, it is submitted that all states should protect the fundamental human rights of refugees under customary international law. Principle of non-refoulement is one of them.
The fundamental humanitarian and human rights principle of non-refoulement is a core principle of refugee law that prohibits states from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened.
Non-Refoulement in Human Rights Law and Humanitarian Law Instruments:
* UN Convention on the Status of Refugees, 1951
* International Covenant on Civil and Political Rights (ICCPR), 1966
* UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
* Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), 1969
* European Convention on Human Rights, 1950
* The Charter of Fundamental Rights of the European Union, 2009
* Council of Europe's Resolution on Minimum Guarantees for Asylum Procedures 1995
* American Convention on Human Rights, 1978
* International Convention for the Protection of all persons from Enforced Disappearance, 2010
* Third Geneva Convention, 1949
* Fourth Geneva Convention, 1949

The practice of non-refoulement is a humanitarian act. If a state unreasonably violates this principle, then it may amount to human rights violations. The two principle documents relating to human rights law are International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7 of the ICCPR prohibits torture and other forms of cruel, inhuman or degrading treatment or punishment. This prohibition contains an implicit obligation of non-refoulement, according to Human Rights Committee in its General Comment no. 20 (1992). Similarly, socio-economic deprivations amounting to 'inhuman or degrading treatment' may be a reasonable ground for allowing non-refoulement.
In Suresh v Canada, the Supreme Court of Canada considered whether Canadian law precluded deportation to a country where Suresh ran a risk of being tortured. Related questions were concerned with when there is a danger to the national security of Canada (regarding combating terrorism) and whether mere membership of an alleged terrorist organisation sufficed. The main legal issue indicated a balancing act between the protection needs of Suresh i.e. the risk of being tortured upon return and the security interests of Canada. According to the Canadian Supreme Court, A balancing act is permitted but need to be in accordance with the principles of fundamental justice. These principles are defined by Canadian municipal law and applicable international law. In spite of small theoretical possibility to apply a balancing test the Supreme Court leaves the door open that 'in an exceptional case such deportation might be justified ... in the balancing approach ...' (paragraph 129). Ultimately, Suresh was deported to Sri Lanka, as he was a member of LTTE (a listed terrorist organisation then in Canada), though he did not committed any act of violence in Canada.
The case of Soering v the UK established the principle that a state would be in violation if its obligations under ECHR if it extradites an individual to a state, in this case the USA, where that individual was likely to face inhuman or degrading treatment or torture contrary to Article 3 ECHR. In this particular case the Court said, In the Court's view this inherent obligation not to extradite also intends to cases in which the fugitive would be faced in the receiving State by real risk of exposure to inhuman and degrading treatment or punishment prescribed by that Article.
The most significant authority confirming the Soering principle to deportation case is Chahal v United Kingdom, the applicant an Indian national belonging to Sikh population, was suspected of having terrorist acts. He had asked for asylum in the UK. Although, the British authority considered a balancing act between the national security of UK and the protection needs of Chahal to be necessary, the European Court ruled that the absolute character of Article 3 does not permit deportation to India if there is a real risk of being subjected to torture or inhuman or degrading treatment or punishment, irrespective of the conduct of the applicant or a possible danger to the national security of the UK. The Court concluded that if returned to India, Chahal would run a real risk of being subjected to torture or inhuman or degrading treatment or punishment. Therefore, the deportation would lead to a violation of Article 3 ECHR. The Court concluded that Article 3 ECHR does not allow any balancing act between the security interests of State parties and the protection needs of individuals.
There are number of Universal, Regional and Domestic Human Rights instruments where principle of Non-Refoulement has been annotated. All these instruments give an implicit obligation to the state under non-refoulement principle to protect the rights of refugees and asylum seekers. Not only civil and political rights but also sometimes socio-economic deprivations amounting to inhuman or degrading treatment may be a reasonable ground for allowing non-refoulement. To recapitulate, it can be stated that Bangladesh has an obligation towards both refugees and asylum seekers under international instruments as well as constitutional framework as far as principle of non-refoulement is concerned.

The writer is Lecturer, Department of Law & Justice, Southeast University.