The protection of refugees and internally displaced persons:<i>Non-Refoulement</i>under customary international law?

Abstract After decades of inter- and intra-State wars, the United Nations named 20 June 2004 as World Refugee Day with 'A Place to Call Home' as its theme. However, whilst citizens in war-free countries were able to commemorate this significant day in the safety of their homes, for millions of refugees and internally displaced persons who yearn for safety and security, a home is but a distant hope. In the light of the plight of these unfortunate persons, this article will examine whether a state is under a duty, under customary international law and independent of the 1951 Refugees Convention and the 1967 Refugees Protocol, to offer a home – asylum – to refugees and internally displaced persons. Notes 1. Universal Declaration of Human Rights, adopted and proclaimed by United Nations General Assembly Resolution 217A(III) of 10 December 1948, Art.14(1). 2. Statement of the Representative of the Secretary-General on Internally Displaced Persons to the 57th Session of the United Nations Commission on Human Rights (12 April 2001). 3. North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), Judgment of 20 February 1969, ICJ Report, 1969, pp.3, 43. 4. Michael Akehurst, 'Custom as a Source of International Law', British Year Book of International Law, Vol.47 (1974–75), p. 1 at p.33. 5. Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (The Hague: Martinus Nijhoff Publishers, 1997), p.189. 6. Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under United Nations General Assembly Resolution 429(V) of 14 December 1950 and entered into force: 22 April 1954. 7. Entered into force: 4 October 1967. 8. Refugees Convention, Art.1A(2), as amended by Refugees Protocol, Art.1(2). 9. Refugees Convention, Art.33(1). 10. Ted L. Stein, 'The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law', Harvard International Law Journal, Vol.26 (1985), p.457 at p.465. 11. Refugees Convention, Art.42(1). 12. Refugees Protocol, Art.VI(1). 13. N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (New York: Institute of Jewish Affairs, 1953), p.175. 14. Adopted by United Nations General Assembly Resolution 2312(XXII) of 14 December 1967. 15. Declaration on Territorial Asylum, Art.3(1). 16. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War and entered into force: 21 October 1950. 17. Ibid. Art.45 (emphasis added). 18. Adopted during 19–22 November 1984 by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama. 19. Kourula (note 5) p.276. 20. See, e.g., Legal Resolution of General Assembly of the Organisation of American States of the Situation of Refugees, Repatriated and Displaced Persons in the American Hemisphere, AG/RES.1103 (XXI-0/91) (7 June 1991); as cited in Guy S. Goodwin-Gill, The Refugee in International Law, 2nd edn (Oxford: Clarendon Press, 1996), p.21 n.92. 21. Adopted by the Assembly of Heads of State and Government of the Organisation of African Unity at its 6th Ordinary Session and entered into force: 20 June 1974; as excerpted in Jean-Pierre Colombey (ed.), Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons, Vol.II: Regional Instruments (Geneva: Division of International Protection of the Office of the United Nations High Commissioner for Refugees, 1995), pp.3–9. 22. Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, Art.II(3). 23. Adopted by the Asian–African Legal Consultative Committee at its 8th Session in Bangkok in 1966; as excerpted in Colombey (note 2) pp.10–14. 24. Article 3(1) of the 1966 Principles Concerning Treatment of Refugees provides that '[n]o one seeking asylum … should … be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory'. 25. Convention for the Protection of Human Rights and Fundamental Freedoms ('European Convention') (ETS No.005), opened for signature on 4 November 1950 and entered into force on 3 September 1953. For an account of the theory and practice of the European Convention on Human Rights, see P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd edn (The Hague: Kluwer International, 1998). 26. Helene Lambert, 'Protection Against Refoulement from Europe: Human Rights Law Comes to the Rescue', International and Comparative Law Quarterly, Vol.48 (1999), p.515 at p.516. 27. Adopted by United Nations General Assembly Resolution 39/46 of 10 December 1984 and entered into force: 26 June 1987. 28. Adopted by United Nations General Assembly Resolution 2200A(XXI) of 16 December 1966 and entered into force: 23 March 1976. 29. In fact, Article 3 of the Torture Convention is based on the principle of non-refoulement as enshrined in Article 33 of the Refugees Convention and enriched by the jurisprudence of the European Court of Human Rights; see Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1995), p.376. 30. Lambert (note 26) pp.521–22. 31. Ibid. p.522. 32. Ibid. 33. European Convention, Art.3. 34. (1980) 2 EHRR 25. 35. Ibid. para.163. 36. (1989) 11 EHRR 439. 37. Ibid. para.88. 38. Ibid. para.91. 39. Lambert (note 26) p.544. 40. Hersch Lauterpacht, The Development of International Law by the International Court: Being a Revised Edition of The Development of International Law by the Permanent Court of Justice (1934) (London: Stevens, 1958), p.380. 41. Atle Grahl-Madsen, 'The Emergent International Law relating to Refugees: Past – Present – Future', in Peter Macalister-Smith and Gudmundur Alfredsson (eds), The Land Beyond: Collected Essays on Refugee Law and Policy by Atle Grahl-Madsen (The Hague: Martinus Nijhoff Publishers, 2001), pp.180–244 at p.205, quoting the Final Act of the United Nations Conference on the Status of Stateless Persons of 28 September 1954. 42. See Ian Brownlie, Principles of Public International Law, 4th edn (Oxford: Clarendon Press, 1990), p.7, where the Jurist states that '[the International Court of Justice] is willing to assume the existence of an opinio juris on the basis of … a consensus in the literature'. It ought to be noted that opinions of renowned jurists are recognised in Article 38(1)(d) of the Statute of the International Court of Justice as a general source of international law. 43. David Kennedy, 'International Refugee Protection', Human Rights Quarterly, Vol.8, 1 (1986), p.1 at pp.60–61. 44. Kay Hailbronner, 'Nonrefoulement and "Humanitarian" Refugees: Customary International Law or Wishful Legal Thinking?', in David Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1988), pp.123–58 at pp.128–29. 45. Ibid. p.132. 46. James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), as excerpted in B.S. Chimni (ed.), International Refugee Law: A Reader (Thousand Oaks, CA: Sage Publications, 2000), pp.115–17 at p.116. 47. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, ICJ Report, 1986, para.218. 48. Office for the Co-ordination of Humanitarian Affairs, Guiding Principles on Internal Displacement, Introduction, para.2. 49. See Ved P. Nanda, 'Comments on: The Legal Basis of International Jurisdiction to Act with Regard to the Internally Displaced', in Vera Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (The Hague: Martinus Nijhoff Publishers, 1996), pp.135–44 at p.136. Although there are a number of United Nations General Assembly resolutions on the subject matter including the most recent one adopted on 20 February 2002 (A/RES/56/164), and a London Declaration propounded by the International Law Association (see International Law Association, 'The London Declaration of International Law Principles on Internally Displaced Persons' (July 2000), International Journal of Refugee Law, Vol.12 (2000), p.672), these instruments are as such not binding in international law. See also Kourula (note 5) p.189, where the author quotes the Representative of the Secretary-General on Internally Displaced Persons in his Statement to the 51st Session of the Committee on Human Rights (February–March 1995), that 'both normatively and institutionally, the international response to the problem of internally displaced is significantly constrained, uncertain and inadequate'. 50. See United Nations High Commissioner for Refugees, Executive Committee, 45th Session, EC/SCP/87, 17 August 1994, 'Protection Aspects of UNHCR Activities on Behalf of Internally Displaced Persons', Introduction, para.4; as excerpted in Chimni (note 46) pp.433–39 at p.435, where it is stated that '[b]y recognising that the problems of the internally displaced and of refugees are manifestations of the same phenomenon of coerced displacement, UNHCR has increasingly considered activities on behalf of the internally displaced to be indispensable components of an overall strategy of prevention and solutions'. 51. Hailbronner (note 44) p.130. 52. Nevertheless, as Chimni (note 46) p.392 avers '[s]uch an argument is, however, not to be read as supporting an absolute doctrine of sovereignty. It is not as if sovereignty cannot be trumped in favour of human rights under any circumstance. The problem is "that the invocation of human rights is selective, often a pretext for attaining incompatible ends, and is advocated by powers which author global policies irreconcilable with any conception of human rights" (quoting B. S. Chimni, 'Globalization and Refugee Blues', in Vol. 8 (1995) Journal of Refugee Studies, p.298 at p.299)'. 53. Nicaragua v. United States (note 47) para.202. 54. The Representative of the Secretary-General on Internally Displaced Persons has stated that Without prejudicing the issue of whether or not new normative standards are needed, it is generally recognised that even though the existing law appears to be adequate for the needs of internal displacement, a consolidation and evaluation of existing norms would be of value and would provide the basis for filling whatever gaps may exist. Building on the knowledge acquired from the practical experience on the ground, as well as the expertise of scholars with expertise in this area of the law, the proposed project would aim at the development of ideas for normative standards based on principles of existing international instruments. The goal would be to develop a doctrine of protection specifically tailored to the needs of the internally displaced. This requires first a compilation/commentary of the existing norms and a further elaboration of the relevant standards … and eventually a declaration or other authoritative document. See UN.Doc.E/CN.4/1994/44, para.28; as quoted in Richard Plender, 'The Legal Basis of International Jurisdiction to Act with Regard to the Internally Displaced', in Gowlland-Debbas (note 49) pp.125–26. Nevertheless, Kourula argues that there is (note 5) p.191, '[a] danger in attempting to create a more elaborate legal framework for internally displaced, hinging on standard setting, whereby States would … accept merely a reiteration of the existing minimum obligations and block progressive standard setting of human rights in general. … There was [therefore] consensus to make reference only to the existing rules and norms of international human rights instruments and international humanitarian law pertaining to internally displaced persons'. 55. U.N.Doc.A/AC.96/SR.415, para.16; as quoted in Goodwin-Gill (note 20) p.129. 56. Grahl-Madsen in Macalister-Smith and Alfredsson (note 41) p.206. 57. Guiding Principles on Internal Displacement (note 48) Principle 3. 58. See Gowlland-Debbas (note 49) p.127.

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