those who have not had their status formally declared.9 The principle of non-refoulement
is of particular relevance to asylum-seekers. As such persons may be refugees, it is an
established principle of international refugee law that they should not be returned or
expelled pending a final determination of their status.
7.
The prohibition of refoulement to a danger of persecution under international
refugee law is applicable to any form of forcible removal, including deportation,
expulsion, extradition, informal transfer or “renditions”, and non-admission at the border
in the circumstances described below. This is evident from the wording of Article 33(1)
of the 1951 Convention, which refers to expulsion or return (refoulement) “in any
manner whatsoever”. 10 It applies not only in respect of return to the country of origin or,
in the case of a stateless person, the country of former habitual residence, but also to any
other place where a person has reason to fear threats to his or her life or freedom related
to one or more of the grounds set out in the 1951 Convention, or from where he or she
risks being sent to such a risk. 11
8.
The principle of non-refoulement as provided for in Article 33(1) of the 1951
Convention does not, as such, entail a right of the individual to be granted asylum in
a particular State. 12 It does mean, however, that where States are not prepared to grant
asylum to persons who are seeking international protection on their territory, they must
adopt a course that does not result in their removal, directly or indirectly, to a place
where their lives or freedom would be in danger on account of their race, religion,
nationality, membership of a particular social group or political opinion. 13 As a general
rule, in order to give effect to their obligations under the 1951 Convention and/or 1967
Protocol, States will be required to grant individuals seeking international protection
access to the territory and to fair and efficient asylum procedures. 14
9
10
11
12
13
14
This has been reaffirmed by the Executive Committee of UNHCR, for example, in its Conclusion No.
6 (XXVIII) “Non-refoulement” (1977), para. (c) (reaffirming “the fundamental importance of the
principle of non-refoulement … of persons who may be subjected to persecution if returned to their
country of origin irrespective of whether or not they have been formally recognized as refugees.”).
The UNHCR Executive Committee is an intergovernmental group currently consisting of 70 Member
States of the United Nations (including the United States) and the Holy See that advises the UNHCR
in the exercise of its protection mandate. While its Conclusions are not formally binding on States,
they are relevant to the interpretation and application of the international refugee protection regime.
Conclusions of the Executive Committee constitute expressions of opinion which are broadly
representative of the views of the international community. The specialized knowledge of the
Committee and the fact that its conclusions are reached by consensus adds further weight. UNHCR
http://www.unhcr.org/cgiExecutive
Committee
Conclusions
are
available
at
bin/texis/vtx/doclist?page=excom&id=3bb1cd174 (last visited on 26 October 2006).
The meaning of the terms “expel or return (“refouler”)” in Article 33(1) is also discussed infra at Part
II.A.
See: UNHCR, Note on Non-Refoulement (EC/SCP/2), 1977, para. 4. See also P. Weis, The Refugee
Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis,
Cambridge University Press, Cambridge (1995), at p. 341.
See: P. Weis, supra footnote 11, at p. 342.
This could include, for example, removal to a safe third country or some other solution such as
temporary protection or refuge under certain circumstances. See E. Lauterpacht and D. Bethlehem,
“The scope and content of the principle of non-refoulement: Opinion”, in E. Feller, V. Türk and F.
Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on
International Protection, Cambridge University Press, Cambridge (2003), para. 76.
The 1951 Convention and the 1967 Protocol define those to whom international protection is to be
conferred and establish key principles such as non-penalisation of entry (Article 31) and nonrefoulement (Article 33). However, they do not set out procedures for the determination of refugee
status as such. Yet it is generally recognised that fair and efficient procedures are an essential element
3