Open Access Research Article
THE NOTION OF REFOULEMENT AS A NECROPOLITICAL PRAXIS: THE FATE OF ASYLUM SEEKERS IN CONTEMPORARY TIMES
Published Paper
Article Details
“THE NOTION
OF REFOULEMENT AS A NECROPOLITICAL PRAXIS: THE FATE OF ASYLUM SEEKERS IN
CONTEMPORARY TIMES.”
Abstract
The principle of
non-refoulement prohibits states from returning refugees to territories where
their lives or freedoms may be threatened. This principle is considered a core
tenet of international refugee law, binding on all states regardless of whether
they are party to the 1951 Refugee Convention. However, the COVID-19 pandemic
saw many states close borders and turn away asylum seekers, raising concerns
about refoulement.
This paper examines
whether public health emergencies allow states to derogate from the
non-refoulement principle. It outlines the legal framework establishing
non-refoulement as a jus cogens norm in international law, with limited
exceptions on national security grounds. Regional conventions in Africa also
affirm expansive protections.
The paper analyzes
recent state actions that potentially violate non-refoulement, such as
Pushbacks in Europe, the Migrant Protection Protocols by the US, and
deportations from India. It argues these measures are often discriminatory and
expose refugees to grave dangers. Finally, it concludes that while states have
sovereign rights to control borders, non-refoulement remains binding even amid
health emergencies. More consistent adherence to this peremptory norm and
recognition of its customary legal status is needed.
Introduction
In the course of the pandemic every
nation closed its boarders in order to restrain the rapid spread of COVID-19,
without listening to any person be it their citizens nor the asylum seekers,
this left many stranded on the boarders especially those who were running away
from war zones like the Syrians, those in Mali and other countries. Whereas the
accurate number of those who got affected by the lockdowns especially the
Asylum seekers is not well dyed-in-the-wool, the UN High Commission for
refugees estimates that over 167 countries closed their boarders either fully
or partially in a view of containing the surge and 57 made no exceptions for
people seeking asylum. Most of these nations used this as an opportunity to
refoul the Asylum seekers, basing on the recent developments some of these
countries are now allowing people entry but on a strict criterion, most of
these include COVID vaccination cards, and other official documents as set by
any nation as it deems fit. However, since most Asylum seekers lack these
credentials some use illegal methods of entry. An example is the 15 Rohingya
refugees that were deported from India, this followed a ‘Supreme court’ ruling
of deporting the Rohingya refugees from India, over 6 refugees died of cold
conditions on the Polish-Belarus boarders and many are still stranded till
date, African asylum seekers denied entry in Greece, inter alia. The most
disturbing part of this is that refoulement is in most cases based on race,
religion, nationality, membership, of a particular group or political opinion.
These rises a question of ‘Whether a public health emergency can grant any
government a right to derogate from the principle of non-refoulement?’
Over 8,000 Rohingya and Bangladeshi
asylum seekers and migrants were a floated in the Andaman sea and Bay of Bengal
in May 2015 on the basis of ethnography, after Thailand, Malaysia and Indonesia
pushed back the boats rebuffing them into their coastlines after delivering
fuel and food, Thailand’s forcible repartition of 45,000 Cambodian refugees at
Prasant Preah Vihear in 1979 on the basis of political affiliation. And also,
the 109 Uighurs-The Turks ethnic group deported by the Thai government in 2014
on the basis of religion. However, this is not the first time when countries
are deporting or refusing entry to asylum seekers on the basing of sex,
religion, race or ethnicity, During the Trump administration Mexicans were
denied entry into the U.S and others deported on the basis of ethnicity. Since
every nation is sovereign and free to allow in any persons as it deems fit,
this raises a question on the responsibility of states to Asylum seekers.
The present study is intended to
focus upon the effects of refoulements to international human rights. The study
will examine the legality of the concept of non-refoulement in relation to
International Humanitarian laws and municipal laws, the relevance of
non-refoulement as a jus Cogen of International law. Besides, the study will
also endeavor to connect the dots between the use of COVID-19 international
guidelines (Public Health Emergencies) and refoulement. The research project
will be addressed with clear examples and empirical evidence from authentic
sources.
Refoulement as A
Discriminatory Policy and its
Effects on Human
Rights.
After the extreme prohibition of
refoulement as a free practice among states, the next thing that the
international community should look into is the issue of scrutinization of
asylum seekers admissions into different states, most states are using this as
an excuse for denying ‘the some’. The neoteric case is the denial of first
entry into Poland to the Africans and Indians from Ukraine, those who were
granted plus those who were later granted have all not enjoyed Asylum
privileges in Poland since there is associated discrimination.[2] Most of these issues
are created by the weak policies among states and communities, some are not
even literally supported by the government. The same avenues have been adopted elsewhere
in Europe to restrain the influx of Asylum seekers in the region, different
practices of deflection including the physical deterrence i.e. erection of
boarder fences, push backs at the sea and offshore processing, plus the
procedural difference i.e. the limitations on procedural fairness, accelerated
procedures, at-sea screening and reductions in legal assistance which can
restrict access to territory.[3] Though one’s access to
territory is of course, no guarantee of fairness or justice but most
deflections have become more acute after the Syrian crisis with over 4 million
people now displaced outside Syria. Some countries have adopted ‘closed door’
policy, which is very strict on Syrians and Africans depending on the region.
Recent state actions provide alarming
examples of the continued failure to uphold the principle of non-refoulement.
In October 2021, India deported 15 Rohingya refugees to Myanmar despite ongoing
ethnic violence against this minority, leading human rights groups to decry the
decision as a violation of India's non-refoulement obligations.[4] At the Polish-Belarus
border, aggressive pushbacks left at least 6 migrants dead of hypothermia in
the frigid woods during November 2021 after being denied entry to Poland's
territory.[5] Discrimination also
underlies the refoulements, as evident in Greece where authorities refused to
allow nearly 470 asylum seekers from Africa entry in March 2022, though
Ukrainians were allowed refuge.[6] The loss of life and
denial of basic refugee protections demands greater accountability. States must
align practices with their binding duty of non-refoulement through all means,
including judicial oversight and sanctions.
These concerning cases reveal an
alarming discriminatory bias underlying many states' refoulement actions, often
targeting groups based on ethnicity, race, or nationality. The deportation of
Rohingya refugees to Myanmar occurred despite ongoing genocidal violence
against this persecuted Muslim minority.[7] Poland's pushbacks
focused on migrants from the Middle East and Africa attempting to enter from
Belarus.[8] Greece refused refuge
only to arrivals from Africa, while admitting Ukrainians.[9]
Even the U.S. Remain in Mexico policy exposing Central American asylum seekers
to danger is predicated on ethnicity and nationality, as no such returns occur
for Canadian asylum seekers.[10] Such differentiation
fundamentally violates Article 3 of the Refugee Convention prohibiting
discrimination in applying the treaty based on factors like race, religion, and
country of origin.[11] As refugees flee
grave harm, their need for protection remains irrespective of ethnic or
national background. Upholding non-refoulement necessitates ending its selective,
prejudicial application.
Furthermore, in Africa also there are
some refoulement policies like in South Africa, the recent Xenophobic riots and
massacre that saw over seven people man-slaughtered, immolation, and hush assaults,
was blamed onto the weak government policies and institutions that did fail to
curb the situation down later on strict and discriminative policies have been
adopted to restrain the situation.[12]
In the Middle East whereas, the ‘fortress’ mentality is arguably less
pronounced and asylum seekers are able to enter neighboring countries, but they
often have fewer rights and face numerous challenges including lack of security
of status and residence.[13]
Over 57,000 asylum seekers in 2019
were refouled to Mexico from U.S.A in the Trump administration scheme popularly
referred to as ‘Migrant Protection Protocols (MPP) Project or remain in
Mexico’.[14] A scheme that is
alleged of creating interminable court hearing waitings in some of Mexico’s
most dangerous border towns. U.S has also adopted some coast guards to prevent
the arrival of vessels bearing likely asylum seekers and also a wall was
constructed to restrict Mexicans for seeking Asylum in U.S.A. Human rights
activists accused the White House of exposing asylum seekers to
‘life-threatening dangers’ after documenting 636 causes of kidnapping, rape,
torture, assault, and violent attacks those returned to Mexico, including a
nine-year old disabled girl and her mother, who were kidnapped and raped after
being sent back to Tijuana.
The COVID-19 pandemic saw many states refuse refugees entry and summarily
expel asylum seekers under the guise of public health restrictions, despite the
lack of any lawful basis. Countries across Asia, Africa, the Americas, and
Europe denied refugees access, at times forcing boats of Rohingya and others
back to sea, citing stopping COVID's spread as justification.[15] However, legal guidance affirms public health emergencies do not permit
derogation from fundamental non-refoulement duties. The WHO expressly called on
states to respect refugee protections during the pandemic.[16] UNHCR emphasized that blanket border closures and pushbacks violate
international law.[17] As Article 33 of the Refugee Convention contains no exceptions, even on
health grounds, denying entry and returning refugees under the cover of
COVID-19 contort states' international obligations. Upholding non-refoulement
requires assessing refugee claims through proper individual procedures, not
blanket exclusions that instrumentalize the pandemic at refugees' expense.
Legal
Framework on Refoulement and The Way Forward.
Critically, the prohibition on
refoulement has attained the status of customary international law, binding on
all states regardless of treaty ratification. Although enshrined in the 1951
Refugee Convention, non-refoulement today constitutes a peremptory norm under
customary law that even non-signatories must uphold.[18]
The International Court of Justice affirmed its status as customary law in the
Congo-Uganda case, noting its incorporation in a diverse array of treaties
reflects acceptance by the international community as a whole.[19]
As one of the most universally embraced human rights principles, with likely
over 95% state adherence, non-refoulement carries the weight of jus cogens that
no state can derogate from or violate.[20]
This customary law foundation provides a powerful basis to demand all states
honor their duties of refugee protection and prohibit refoulement in all forms.
No country can justify policies disregarding such an established, fundamental
rule.
The refugee convention[21]
puts an exemption to the notion of non-refoulement under Art. 33(2) provides
the ‘The benefit of the present provision may not, however, be claimed by a
refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a
final judgement of a particular serious crime, constitutes a danger to the
community of that country.’ Thus, most states do set policies and condition
Asylum seekers for entry into their territories, of which the act is not
against the law but the problem lies in the way of implementation of the
screening policies since some state are discriminative in nature (refer to
examples provided herein). The concept of refoulement is highly prohibited
across the globe taking an example of the warning to Australia for refouling
the Sri Lanka asylum seekers and China for refouling asylum seekers back to
North Korea, in most indicates the concept is condemned as a whole yet the
loopholes in it are discriminatory, most states ‘deny territory access’ on
grounds of disguisedly in-capabilities.
It is further provided under the
Art.9[22], Convention
Against Torture (CAT), that ‘No state party shall expel, return (refouler) or
extradite a person to another state where there are ‘substantial grounds’ for
believing that he would be in danger of being subjected to torture.’ The
keyword here is ‘substantial grounds’, the term in question is further detailed
under Art. 33(2)[23] which
does provide an exception to the principle of non-refoulement on grounds of
security threat and acquittal to serious crimes making him a danger to the
community of the country. It must be also noted that under the Declaration on
Territorial Asylum (1967), Art. 3(1)[24]
generally forbids rejection at the frontier, Art. 3(2)[25] provides
an exception on grounds of overriding reasons of national security or in order
to safeguard the population, in the case of a mass influx of persons.
Art. 14[26],
of the Universal Declaration of Human rights provides that, ‘Everyone has the
right to seek and enjoy in other countries Asylum from persecution.’ The word
‘Every one’ expressly implies without discrimination attached. The 1967
protocol[27] extends
the convention’s protection to all refugees irrespective of the location or
date of their displacement, and importantly, requires it’s 146 states parties
to abide by the convention regardless of whether they are separately party to
it.
With all the foresaid statutes, this
makes the principle of non-refoulement a jus Cogen of International. A
principle that even states that are non-signatories to the refugee convention
have an onus to. In most cases, its not the case of whether a state is a
signatory or entitled to the principle but its implementation structures and
policies most states tend to act the contrary but in disguise of the laws
provided.[28] Some
states like aforementioned are discriminative in implementation of these laws,
some restrain the accessibility within their policies.
In the case of Sale V. Haitian Centers Council, Inc.,[29]‘…instructions
to mandate immediate return to Haiti without screening were changed. Supreme
court rejected the challenge to such returns, founded on Art. 33, Refugees
convention and it’s implementing provisions in U.S. law. And also, in the case
of Nishimura Ekiu V. United States,[30]‘…it
is an accepted maxim of international law that every sovereign nation has the
power as inherent in sovereign and essential to self-prevention, to forbid the
entrance of foreigners within its dominions, or to admit them only in such
cases and upon such conditions as it may deem fit to prescribe…’. The American
society of International Laws Project[31]
stated that the governments’ burden is to put forward some rational basis for
the differentiation relevant to the purpose that is sought to be achieved.’
However, it must also be the ‘reasonable and proportionate test’ does not appear
in the UN Human Rights Committee General Committee No.18, Non-Discrimination.[32]
Buergerthal in the same report states that ‘…formulation better reflects the
real-world application of the anti-discrimination norm to immigration laws and
restriction because domestic and international tribunal in fact tend to apply
highly differential review to such distinctions…’[33] After
the suicide of a Mexican who was ‘refouled’ from the U.S.A, many human rights
activists accused the ‘white house’ of exposing Asylum seekers to life
threatening dangers.’, and after documenting 636 causes of kidnapping, rape,
torture, assault and other violent attacks those returned to Mexico. The Human
Rights first researcher Kennji Kizuki stated that ‘…with schemes such as
‘Remain in Mexico’, the Trump administration was moving to essentially shut
down asylum and refugees across to U.S…’, He further provides that ‘…All these
policies are edging us closer and closer to aero refugees or asylum seekers
(being) admitted to the U.S… It all just grows out of the Xenophobia of the
administration at the base…’[34]
On grounds of whether a public health
emergency can grant a government a right to derogate the principle of
non-refoulement, the Refugee convention is silent about the implementations of
the principle in the conditions of emergencies but some regional conventions
have come out to elaborate on the question. Under the Kampala Convention, a
refugee arguably cannot be returned to a country that has failed to control
COVID-19 as return to such country would place the refugee’s life and health at
risk. The Organization of African Union Convention Governing the Specific
Aspects of Refugees Problems in Africa[35]
also employs expansive language towards the same, stating that ‘[N]o person
shall be subjected by a measure such as rejection at the frontier, return or
expulsion which would compel him to return or remain in a territory where his
life, physical integrity or liberty would be threatened. However, Rodolfo
Marquez[36]
notes that neither African court on Human and People’s Rights nor the African
has had the opportunity to determine the dimension of [non-refoulement] within
their jurisdiction. The International Health Regulations confirms that no
person shall be refouled even in Public Health Emergencies.[37]
Conclusion.
Ensuring states uphold
their non-refoulement obligations requires both strengthened monitoring and
greater accountability for violations. As refoulement often occurs
clandestinely, increased observation along borders and coastal areas by
international organizations could deter unlawful expulsions.[38]
States aiding or abetting refoulement must face consequences through
international judicial bodies empowered to order protections for refugees and
sanctions for breaches.[39]
Additionally, regional multilateral agreements explicitly prohibiting
refoulement carry promise in expanding protections. The 1969 OAU Refugee
Convention unequivocally binds parties to outlaw returning refugees to
territories where they face harm.[40] A
new Asia-Pacific convention affirming non-refoulement would similarly codify
the norm among states most impacted by forced migration flows.[41] With
vigilance, enforcement, and regional frameworks fortifying states’ commitments,
the peremptory prohibition on refoulement can fulfill its purpose as a shield
for the world’s most vulnerable.
In a nutshell, a public
health emergency does not grant the government a right to derogate from the
principle of non-refoulement, the IHR provides no person shall be refouled even
in Public Health Emergencies. The principle of non-refoulement is a jus Cogen
of international meaning that every state is entitled to it regardless of
whether parties to the refugee convention or not, this means that the
implementation of this principle MUST be non-discriminative in nature. Every
state has a responsibility not to discriminate and provide a right to territory
to the refugees and if they can’t they can just provide for them a free and
safe passage to a safe state instead of refouling the Asylum seekers back to
territories where there is possible execution or torture. States must follow
their national laws when implementing these laws as long as they don’t
contravene with the principles of international laws and human rights
principles, thus, the principle of non-refoulement is a must and must
implemented non-discriminatively.
All states must abandon
that selfish acts of refouling whom they want majorly on grounds of
discrimination especially in terms of race, religion, affiliation and any other
aspect.
States must create
policies that are fair and just to all individuals regardless of their
affiliation or interest or at least provide a safe passage to the Asylum
Seekers to states where there is possible safety.
The UNHRC must try to
emphasis on the just implementation of the principle of non-refoulement since
its loophole especially in overseeing system and policies have created room for
any states to create up a discriminatory system among states.
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[1] Kibirige Hassan is a 4th
Year Law Student Pursing B.A LL. B at Marwadi University, Rajkot.
[2] Mehdi Chebil, ‘Pushed back because we’re black:
Africans stranded at Ukraine-Poland Boarder.’ France24, see also; Lorenzo Tondo
in Przemysl and Emmanuel Akinwotu, ‘People of color fleeing Ukraine attacked by
polish nationalists.’, TheGuardian. (2022).
[3] A., Brasseur, (President of the Parliamentary
Assembly of the Council of Europe), ‘Europe slamming its’s doors on Refugees:
Is this really What Europe is About?’ Press Release, Council of Europe. (2016).
[4] Human Rights Watch. “India:
Rohingya Deported to Myanmar Face Danger,” March 31, 2022.
[5] BBC News. “Migrants Freezing to
Death on Belarus-Poland Border,” September 23, 2021.
[6] The New Humanitarian. “Hot and
Cold: Greece’s Treatment of Ukrainian and Non-Ukrainian Refugees,” August 16,
2022. Available at; https://www.thenewhumanitarian.org/news-feature/2022/08/16/Greece-refugees-Ukraine-asylum-system-application.
?
[7] Human Rights Watch. “India: Halt
All Forced Returns to Myanmar,” March 10, 2021. Available at;
https://www.hrw.org/news/2021/03/10/india-halt-all-forced-returns-myanmar.
[8] Agnieszka Pikulicka-Wilczewska.
“Fears of Migrant Deaths Rise after Bodies Found in Eastern Poland.” Reuters.
Reuters, January 13, 2023. Available at;
https://www.reuters.com/world/europe/fears-migrant-deaths-rise-after-bodies-found-eastern-poland-2023-01-13/.
[9] Oxfam International. “‘A Two-Tier
Refugee Response’: Greece’s Welcome of People Fleeing Ukraine Stands in Stark
Contrast with Others Seeking Safety | Oxfam International,” May 25, 2022. Available
at; https://www.oxfam.org/en/press-releases/two-tier-refugee-response-greeces-welcome-people-fleeing-ukraine-stands-stark.
[10] PBS NewsHour. “‘Remain in Mexico’
Reinstated, Sends Asylum Seekers across the Southern Border.” PBS NewsHour,
December 11, 2021. Available at;
https://www.pbs.org/newshour/show/remain-in-mexico-reinstated-sends-asylum-seekers-across-the-southern-border.
[11] Article 3 and Article 33, UN
General Assembly. (1951). Convention Relating to the Status of Refugees.
Available at; https://www.unhcr.org/sites/default/files/legacy-pdf/4ca34be29.pdf
[12] ‘South Africa: Failing asylum system is exacerbating
Xenophobia.’ Amnesty.org. (2019), see also; ‘Living in Limbo: Rights of asylum
seekers denied.’, Amnesty International.Org. (2019).
[13] O’Sullivan M., & Dallal S., ‘States, the law
Access to Refugee Protection: Fortresses and Fairness’, 65, HART. 9 (2017). See
also; D. Stevens & L. Baldassar, ‘Refugees Protection and the role of law.’
Cambridge University Press. (2014).
[14] John Kennedy, ‘Refoulement as a Biopolitical Praxis:
Subalternity, Ethnography, and Ethics at the Mexico-Guatemala Boarder.’,
Cornell University. (2021)
[15] Evan J. Criddle and Evan
Fox-Decent, ‘The Authority of International Refugee Law.’, 62 Wm. & Mary L.
Rev. 1067 (2021).
[16] Michael Garcia Bochenek. “The
Persistent, Pernicious Use of Pushbacks against Children and Adults in Search
of Safety” 12(3) 34. (2023).
[17] UNHCR. (2020, March 31). Key legal
considerations on access to territory for persons in need of international
protection in the context of the COVID-19 response. Available at;
https://www.refworld.org/docid/5e7132834.html
[18] Allain, J. (2001). ‘The jus cogens
nature of non?refoulement.’ International Journal of Refugee Law, 13(4),
533-558.
[19] ICJ. (2005). Armed activities on
the territory of the Congo (Democratic Republic of the Congo vs. Uganda),
Judgment, I.C.J. Reports 2005, p. 168.
[20] Musalo, K., Moore, J., &
Boswell, R. A. (2011). ‘Refugee law and policy: Cases and materials.’, Durham:
Carolina Academic Press.
[21] UN General Assembly, (1951), Convention Relating to
the Status of Refugees’, and its 1967 Protocol.
[22] UN General Assembly, (1984), Convention Against
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[23] UN General Assembly, (1951), Convention Relating to
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Article Information
THE NOTION OF REFOULEMENT AS A NECROPOLITICAL PRAXIS: THE FATE OF ASYLUM SEEKERS IN CONTEMPORARY TIMES
Authors: KIBIRIGE HASSAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/18
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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