Convention and 1967 Protocol is considered an authoritative view which should be
taken into account when deciding on questions of refugee law.
I. NON-REFOULEMENT OBLIGATIONS UNDER INTERNATIONAL LAW
A.
The Principle of Non-Refoulement Under International Refugee Law
1.
Non-Refoulement Obligations Under International Refugee Treaties
(i)
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
5.
The principle of non-refoulement constitutes the cornerstone of international
refugee protection. It is enshrined in Article 33 of the 1951 Convention, which is also
binding on States Party to the 1967 Protocol. 5 Article 33(1) of the 1951 Convention
provides:
“No Contracting State shall expel or return (“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where his [or her] life or freedom
would be threatened on account of his [or her] race, religion, nationality,
membership of a particular social group or political opinion.”
6.
The protection against refoulement under Article 33(1) applies to any person who
is a refugee under the terms of the 1951 Convention, that is, anyone who meets the
requirements of the refugee definition contained in Article 1A(2) of the 1951
Convention (the “inclusion” criteria) 6 and does not come within the scope of one of its
exclusion provisions. 7 Given that a person is a refugee within the meaning of the 1951
Convention as soon as he or she fulfills the criteria contained in the refugee definition,
refugee status determination is declaratory in nature: a person does not become a refugee
because of recognition, but is recognized because he or she is a refugee. 8 It follows that
the principle of non-refoulement applies not only to recognized refugees, but also to
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Article I(1) of the 1967 Protocol provides that the States Party to the Protocol undertake to apply
Articles 2–34 of the 1951 Convention.
Under this provision, which is also incorporated into Article 1 of the 1967 Protocol, the term
“refugee” shall apply to any person who “owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political opinion, is
outside the country of his [or her] nationality and is unable or, owing to such fear, unwilling to avail
him [or her]self of the protection of that country; or who, not having a nationality and being outside
the country of his [or her] habitual residence is unable or, owing to such fear, unwilling to return to
it”.
Exclusion from international refugee protection means denial of refugee status to persons who come
within the scope of Article 1A(2) of the 1951 Convention, but who are not eligible for protection
under the Convention because
- they are receiving protection or assistance from a UN agency other than UNHCR (first
paragraph of Article 1D of the 1951 Convention); or because
- they are not in need of international protection because they have been recognized by the
authorities of another country in which they have taken residence as having the rights and
obligations attached to the possession of its nationality (Article 1E of the 1951 Convention); or
because
- they are deemed undeserving of international protection on the grounds that there are serious
reasons for considering that they have committed certain serious crimes or heinous acts (Article
1F of the 1951 Convention).
See: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, Reedited
Geneva 1992, para. 28.
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