THE PRINCIPLE OF NON-REFOULEMENT

By Mr. Prajeish.D



1.Introduction

A refugee is a person who has fled away from his country due to war, violence or external aggression etc. Such people fear of returning back to their motherland and try to accommodate into the country they fled. Refugees do not have legal exit or entry and are considered to be infiltrators in the countries they enter. Such people seek asylum and protection and also possess the legal right to such protection until the war, violence, religious persecution etc., due to which they moved out has subsided completely. Refugees are protected by various international conventions which emphasize on the principle of non-refoulement. This article would explain in detail the various conventions and the principle of non-refoulement in easy and understandable terms.


2.Who is a refugee?

A refugee means someone unable or unwilling to return to their country of origin to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.[i] The Convention Governing the Specific Aspects of Refugee Problems in Africa[ii] has defined refugee which reads:

“Every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”

The United Nations High Commissioner for Refugees (UNHCR) recognizes persons as refugees as follows:

“who are outside their country of nationality or habitual residence and unable to return there owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order.”


3.Principle of Non-Refoulement:

The 1951 Refugee Convention[iii] is one of the most important and well-known treaty in the international refugee law. The provision relating to non-refoulement has been enumerated under Article 33 of the Convention. It reads under:

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, membership of a particular social group or political opinion.

In simple terms, a State should not expel or refuse to grant access to anyone who enters such State as a refugee due to fear of various happenings in their country. The principle of non-refoulement is an international fundamental human right provided to the refugees and can be invoked when they are denied access or expelled from the country they enter as refugees.

“No one leaves home unless home is the mouth of a shark” - Warsan Shire

India is not a party to the 1951 Convention which emphasizes the Principle of Non-Refoulement. However, the principle of non-refoulement is considered to be as a norm of jus cogens in international law. Jus cogens means the principles which form the norms of international law that cannot be set aside. The Executive Committee of the United Nations first terms the principle of non-refoulement to be a norm of jus cogens in the Executive Committee Conclusion No. 25 of 1982.

Again, the Executive Committee in the year of 1996, concluded that the principle of non-refoulement has attained the position as a norm of jus cogens after determining that the non-refoulement principle is not subject to derogation.Therefore, by enforcing the principle of non-refoulement as a principle of international law, India is bound to be abided by it and grant protection to the refugees instead of expelling or denying access to them.

The Gujarat High Court in the case of Ktaer Abbas Habib Al Qutaifi v. Union of India,[iv] recognized the principle of non-refoulement under Article 21 of the Constitution and emphasized the protection and dignified life of the refugees. Further the Hon’ble Apex Court in the case of Khudiram Chakma v. State of Arunachal Pradesh[v] stated that every person seeking asylum in a State cannot be sent back to the country from where he has come if the risk of persecution has been embedded.


4.Conclusion:

The status of refugees is very worse in India. They are not aware of their right of not to be refouled from India and are been treated worse than a human being. Refugees also deserve the basic needs of life and some basic Fundamental Rights provided under the Constitution. The principle of non-refoulement provides these fundamental rights to the refugees who stay in India as an asylum-seeker. It is important for the legal fraternity to create awareness and ensure that no refugee is being treated illegally and are granted the basic rights to life.

[i]Patrick Brown, What is a refugee? https://www.unhcr.org/what-is-a-refugee.html [ii]Convention Governing the Specific Aspects of Refugee Problems in Africa, Sep. 10, 1969, 1001 U.N.T.S 45. [iii]Convention Relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 137. [iv]Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cr.L.J. 919 (India). [v]Khudiram Chakma v. State of Arunachal Pradesh, 1994 Supp (1) S.C.C. 615 (India).

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