(https://journals.law.harvard.

edu/ilj/)

The Obligation of Non-

Refoulement and Its
Erga Omnes Partes
Character
FILED UNDER: CONTENT
( H T T P S : / / J O U R N A L S. L A W. H A R V A R D. E D U / I L J / C AT E G O R Y / C O N T E N T / ) , O N L I N E
SCHOLARSHIP
( H T T P S : / / J O U R N A L S. L A W. H A R V A R D. E D U / I L J / C AT E G O R Y / C O N T E N T / A R T I C L E - S E R I E S / ) ,
PERSPECTIVES
( H T T P S : / / J O U R N A L S. L A W. H A R V A R D. E D U / I L J / C AT E G O R Y / C O N T E N T / A R T I C L E -
SERIES/PERSPECTIVES/)

PAVITRA KHAITAN & JVALITA KRISHAN*

I. Introduction
In the context of the rights of refugees within the framework of humanitarian and
customary international law, the principle of non-refoulement is an essential form of
protection. Non-refoulement “prohibits states from removing or transferring
individuals from their jurisdiction or effective control when there are substantial
grounds for believing that the person would be at risk of irreparable harm upon
return, including persecution, torture, ill-treatment, or other serious human rights

violations.”[1] The 1951 Convention Relating to the Status of Refugees has enshrined
the prohibition of refoulement in treaty law under Article 33. This provision bans a
contracting party from returning a refugee in any manner to the borders of territories
that are known to threaten the life and freedom of said refugee “on account of their
race, religion, nationality, membership of a particular social group, or political
opinion.”[2] Clause 2 of Article 33 provides for two exceptions if there are reasonable
grounds for either regarding a refugee as a threat to the security of the country or the
refugee as a danger to its community upon a final judgment convicting them of a
serious crime.[3] This paper explores the importance of the non-refoulement principle
and the complex ways in which states bypass its implementation. It also sets out to
prove non-refoulement as an obligation erga omnes partes for state parties to the
Convention. The resultant inference is that state parties to the 1951 Refugee
Convention may bring a suit to the International Court of Justice (ICJ)[4] against any
nation in violation of the principle of non-refoulement.

II. Non-refoulement Compliance

During COVID-19
The non-refoulment principle has been evaded by several states in recent years as
governments halted migration procedures to prevent the spread of COVID-19. These
policies left no exception for those seeking refuge.[5] For example, the Belgian
government introduced measures effectively suspending refugees’ right to seek
refuge on account of the coronavirus. It then created an online registration system
that caused lengthy wait times for refugees seeking an appointment with concerned
officials.[6] And several reports and interviews of asylum-seekers conducted by
Human Rights Watch show that Greek law enforcement officials coordinated returns
of asylum-seekers to Turkey, where they were then placed on small inflatable rafts
and set adrift in Turkish territorial waters.[7] Both these countries are signatories to the
Convention. The U.N. High Commissioner for Refugees (UNHCR) opined in its
advisory capacity that non-refoulement constitutes a non-derogable provision of
international refugee protection but that the application of the two categories of
exceptions whereby the refugee is considered a danger to the security of the country
or a final judgement convicting the refugee of a serious crime renders them a danger
to the community of the country requires an individualised determination by each
country in which the refugee seeks asylum.[8]

However, the exceptions do not extend to a pandemic circumstance that warrants a

blanket policy of turning away all refugees without assessing their claims.[9] UNHCR
declared that “the imposition of a blanket and indefinite measure against the
admission of all asylum seekers, or of those of a particular nationality, could lead to a
risk of the violation of the principle of non-refoulement.”[10] The UNHCR further added

that in case of a confirmed public health crisis such as the ongoing pandemic,
alternative available measures such as the implementation of quarantine and
isolation to manage the safe arrival of asylum-seekers must be considered to continue
safeguarding the right to seek asylum and the principle of non-refoulement.[11] Thus,
states that are parties to treaties with provisions relating to non-refoulement such as
the 1951 Refugee Convention and Protocol of 1967 relating to the Status of Refugees
(which creates an obligation to process asylum claims) must prioritise compliance
with their treaty obligations by ensuring that refugees are not returned to their
countries of origin if such return would pose a threat to their well-being while also
imposing pandemic health protocol measures.[12] The least a state under these
obligations can do is grant the refugee temporary admission until states take on
greater collective responsibility to share the role of the protection of refugees.[13]

III. General Methods to Evade

Compliance
Mechanisms utilized by states to restrict the entry of asylum-seeking refugees do not
only limit themselves to pandemics. Consider the track record of states that are
parties to treaties containing a refoulement prohibition and refugee rights. Belgium
in the 1990s had a ninety percent rejection rate of asylum-seekers at its borders and
an extraordinarily high threshold of eligibility aimed at preventing illegal immigrants.
These barriers were so severe that genuine refugees were discouraged from
approaching the state through elaborate institutional mechanisms and preferred
entering illicitly.[14] Similarly, members of the European Union (EU) have imposed
unrealistic visa requirements for states that produce refugees such as Romania, Sri
Lanka, and Iraq.[15] The Schengen Border Control (SBC) regulation which governs the
border control of persons crossing the external borders of EU member states is silent
on the definition of ‘refugees and persons seeking international protection.’[16] The
effect of this is that refugees are assimilated into the general ‘third-country national’
category and are subjected to criterion under Article 6 of the SBC which include
possession of valid travel documents and proof of their intention and ability to return
to their country of origin prior to the expiry of their permitted duration of stay.[17] Such
conditions imposed on refugees whose documentation status and departure from the
country often remains indeterminable, results in the pre-emptive gatekeeping of
persons of specific nationalities and their right to seek asylum. The phenomenon of
refugees irregularly moving from the country where they have received protection to
seek permanent settlement or asylum elsewhere came about owing to the
unavailability of long-term educational and employment opportunities that promote
local integration and resettlement of refugees.[18] The concept of “safe third country”
was created to address the destabilising effect of such irregular movement on the
organised international efforts to protect refugees[19] but conveniently denies the

vetting of asylum requests due to the mere fact of such a refugee having previously
transited a country deemed safe.[20] Germany’s policy is one such example that sent
refugees back to the transit country without any verification of the existence of proper
asylum procedures and protection of refugees.[21]

The “non-suspensive effect” is another problematic mechanism by which states like

Austria, France, and Sweden absolve themselves of the responsibilities of integrating
refugees into their jurisdiction. The non-suspensive effect arises because refugees
who appeal the decision denying them entry cannot remain in the country during the
pendency of the appeal, and are therefore forced to remain illegally as their lives are
threatened in their country of origin.[22] States even go so far as to confine their
interpretation of the definition of refugees to only include those facing persecution
from the state,[23] when reality many asylum-seekers face life-threatening danger
from non-state agents such militant extremist groups. The currently unrecognised de
facto Taliban government that effectively reoccupied Afghanistan in 2021 is just one
example.[24] Nowhere in Article 33 does the provision specify that the threat to the life
and freedom asylum-seekers must emerge from state persecution alone. Such a
restrictive understanding of the prohibition of non-refoulement is violative of a
refugee’s right to seek asylum and find recourse in state parties to the convention. It is
also inconsistent with the purpose of the Convention: to safeguard refugees’ rights.

State parties to the Convention bend their conduct to cater to versions of non-
refoulement that favour their interests. This makes it crucial to ensure a level of
compliance to prevent arbitrary violations of human rights. Before discussing whether
the non-refoulement principle is an obligation erga omnes partes, it is essential to gain a
clear understanding of the concept. In contrast to obligations erga omnes owed to the
international community as a whole, obligations erga omnes partes are specifically
confined to a group of states—typically state parties to a multilateral convention with
a common interest.[25] The common interest implies that violations of such
obligations create a legal interest in all other state parties to ensure the protection of
the associated rights.[26]

IV. The Test to Establish an Erga

Omnes Partes Obligation
In Belgium v. Senegal, the International Court of Justice laid down the test to determine
whether an obligation is an obligation erga omnes partes.[27] The Court must consider
whether being a state party to the Convention is sufficient for a State to be able to
bring a claim to the court regarding the violation of an obligation of the treaty.
Determining whether an obligation constitutes an obligation erga omnes partes
requires ascertaining first, the object and purpose of the treaty; second, that the state

parties have a common interest in compliance with the obligations laid down by the
treaty; and third, whether the particular obligation in question was incorporated to fill
this purpose of the treaty as determined.[28] We will now apply this test to the
obligation of non-refoulement under the Refugee Convention.

First, the object and purpose of the Refugee Convention is to provide refugees with
basic rights and freedoms. The Vienna Convention on the Law of the Treaties allows
emphasis to be placed on the Preamble of a treaty whilst determining its object and
purpose.[29] Inspecting the preamble to the Refugee Convention, it declares that all
state parties to the Convention must endeavour to assure refugees the exercise of
their fundamental rights. The object and purpose of the Convention is hence to assure
the widest possible exercise of fundamental rights and liberties of refugees through
international cooperation.[30] The adoption of this treaty was to guarantee the
refugees these rights in human and equitable terms.[31] Further, the Vienna
Convention allows us to place reliance on the preparatory material to the convention.
[32] The Travaux Préparatoires of the Convention showed that there was a recognition

that the foundation of the Convention is to place refugees on equal footing with the
citizens of the countries of refuge.[33] The intention of the Convention includes the will
of the state parties to be bound by the principle of non-discrimination with reference
to the treatment of refugees.[34] The returning of a refugee to a nation where his life
or freedom would be threatened on account of his race or religion would be
equivalent to delivering him into the hands of his persecutors. We can thereby
conclude that the object and purpose of the Refugee Convention is to provide
refugees with their basic human rights and liberties.

Second, we must determine that state parties have a common interest in complying
with the obligations laid down by the treaty. In Belgium v. Senegal, the International
Court of Justice held that all parties to the Convention Against Torture have a
“common interest” to comply with the obligation to prosecute alleged perpetrators of
acts of torture even if the alleged torturer or victim have no connection with the state
parties.[35] These states can be said to have a “legal interest” in these erga omnes partes
obligations. The obligations in question are owed to all parties of the convention.[36]
Applying the same reasoning to the Refugee Convention, states have a common
interest in the protection of fundamental human rights thus including an interest to
protect the fundamental rights and liberties of refugees. Human rights treaties are of
such nature that a state has obligations to all state parties, notwithstanding their
nexus to the State violating the treaty.[37] This provides state parties with an
obligation to call upon state parties and demand compliance.[38] Human rights
treaties are not concluded on the basis of reciprocity, instead they are “series of
unilateral engagements solemnly contracted before the world as represented by the
other Contracting Parties.”[39] From this, one can conclude that all human right
treaties are erga omnes partes in nature.[40]

Further, the International Court of Justice has previously compared the provisions of
the Convention Against Torture to the Convention of the Prevention and Punishment
of the Crime of Genocide since in both conventions “the contracting States do not have
any interests of their own; they merely have, one and all, a common interest, namely,
the accomplishment of those high purposes which are the raison d’être of the
Convention.”[41] The same is true of the Refugee Convention, where the common
interest element is the protection of fundamental human rights for refugees. This
common interest to ensure that any violator who does not abide by the objective of
the refugee convention does not enjoy impunity directly implies that obligations
under the Convention are owed by each state party to all the other state parties.[42]
Obligations created to protect the collective interest of a group of states are
established with the intention of “transcending the ‘sphere of the bilateral relations of
the State parties,’” thereby creating obligations of a multilateral nature.”[43] The
common interest in compliance with the relevant obligations of the Refugee
Convention gives rise to the entitlement of each state party to the Convention to
invoke the responsibility of another state to make a claim concerning the cessation of
an alleged breach by another state party.[44] Since no special interest is required for
this purpose, the relevant obligations can be said to be of an erga omnes partes
character.

Third, the obligation of non-refoulement can be incorporated to fulfil the purpose of

the Refugee Convention. Obligations erga omnes partes are those obligations that are
so integral to the subject and purpose of the treaty that no reservations or derogations
are permissible.[45] The Refugee Convention is underpinned by the fundamental
principle of non-refoulement.[46] Article 33 lays down this paramount obligation. And as
per Article 42, no reservations or derogations are permissible to Article 33. It is so
paramount that the UNHCR has noted that “the principle of non-refoulement is a norm
of customary international law based “on a consistent practice combined with
recognition on the part of nations that the principle has a normative character.”[47] The
principle of non-refoulement is the cornerstone of asylum and of international refugee
law.[48] As stated in Article 33, the Convention prohibits the return or expulsion of
refugees (“refouler”) to a country where the refugee’s life or freedom is threatened.[49]
The party States to the 1951 Convention and the 1961 Protocol have acknowledged that “the
continuing relevance and resilience of this international regime of rights and
principles, including at its core the principle of non-refoulement,” as embedded in
customary international law.[50] The protection of the principle of non-refoulement is
essential to defending the common interest of the exercise of basic fundamental
rights as established in the Convention. If the principle is violated, there exists a “real
and imminent risk of irreparable prejudice” of the values and interests advocated by
the treaty.[51]

The object and purpose of the Refugee Convention may be frustrated by a breach of
this principle by any one state. The fundamental nature of non-refoulement as a
cardinal principal has been reaffirmed by the Executive Committee of the UNHCR and
the United Nations General Assembly.[52] In 1980, the UNHCR Executive Committee
[r]eaffirmed the fundamental character of the generally recognized principle of non-
refoulement.’[53] Its 1991 conclusions reiterated ‘the primary importance of non-
refoulement and asylum as cardinal principles of refugee protection’.[54] The vitality of
non-refoulement within the aegis of refugee protection has also been express by the
United Nations General Assembly in multiple resolutions.[55] The obligation of states
to abide by the principle of non-refoulement and not send refugees back to the host
nation when there exists danger to the refugee’s life is essential to fulfilling the aim of
the Refugee Convention. Therefore, the principle is of the erga omnes partes nature
insofar that all State parties ought to have a legal interest in others’ compliance with
this obligation.[56]

V. Conclusion
The proving of non-refoulement as an obligation erga omnes partes in the capacity of the
Refugee Convention automatically mandates that any nation party to the convention
may bring a nation in violation of this obligation to the International Court of Justice.
It confers on state parties to the convention, therefore, an obligation to not turn away
any refugees seeking aslyum. With this establishment, the enforceability of non-
refoulement obligations is thus enhanced, enabling a better likelihood of the
safeguarding of persecuted refugees’ rights in the tumultuous global socio-political
landscape.

[1]The Principle of Non-Refoulement Under International Human Rights Law, United

Nations High Comm’r for Hum.
Rts.,https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCo
mpactMigration/ThePrincipleNon-
RefoulementUnderInternationalHumanRightsLaw.pdf .

[2] Convention Relating to the Status of Refugees 1951 Art 33, Apr. 22, 1954, 189 U.N.T.S
150.

[3] Id.

[4] Id. at Art. 38.

[5] See Oona Hathaway, Covid-19 and International Law: Refugee Law- The Principle of Non-
Refoulement, Just Sec. (Nov. 30, 2020), https://www.justsecurity.org/73593/covid-19-
and-international-law-refugee-law-the-principle-of-non-refoulement/.

[6] See id.

[7] Greece: Investigate Pushbacks, Collective Expulsions. EU Should Press Athens to Halt
Abuses, Hum. Rts. Watch (Jul. 16, 2020),
https://www.hrw.org/news/2020/07/16/greece-investigate-pushbacks-collective-
expulsions .

[8] See Extraterritorial Application of Non-Refoulement Obligations under the 1951

Convention Relating to the Status of Refugees and its 1967 Protocol, Advisory Opinion,
United Nations High Commissioner for Refugees, (Jan. 26, 2007).

[9] See Hathaway, supra note 4.

[10] UNHCR Legal Considerations with Regard to the EU Commission´s Guidelines for Border
Management Measures to Protect Health and Ensure the Availability of Goods and Essential
Services, United Nations High Comm’r for Refugees (Mar. 18, 2020).

(//E92B2718-3ABF-4EE6-B7A1-8D17AB1C4477#_ftnref11) [11] Id.

[12] See Hathaway, supra note 4.

[13] See Salvo Nicolosi, Non-refoulement During Health Emergency, EJIL: Talk! (May 14,
2020), https://www.ejiltalk.org/non-refoulement-during-a-health-emergency/.

[14] See Christiane Berthiaume, Measures Imposed by European Governments to Stem the
Tide of Illegal Immigrants are Threatening the Very Foundations of Asylum, Refugees, 1 Sept.
1995, https://www.unhcr.org/en-in/publications/refugeemag/3b543cb84/refugees-
magazine-issue-101-asylum-europe-asylum-under-threat.html .

[15] See id.

[16] Juan Fernando López Aguilar, Humanitarian Visas, Eur. Parliamentary Rsch. Serv.
(Jul. 2018)https://www.europarl.europa.eu/cmsdata/150782/eprs-study-
humanitarian-visas.pdf 19.

[17] Id at 20.

[18] See Conclusions Adopted by the Executive Committee on the International Protection of
Refugees, United Nations High Comm’r for Refugees (Dec. 2009)
https://www.unhcr.org/en-my/578371524.pdf 77

[19] Id.

[20] See Nicolosi, supra note 13.

[21] Id.

[22] Id.
[23] Id.

[24] See Ben Saul, “Recognition” and the Taliban’s International Legal Status, Int’l Ctr. for
Counter-Terrorism (Dec. 15, 2021) https://icct.nl/publication/recognition-talibans-
international-legal-status/.

[25] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.),
Judgement, 2012 I.C.J 422 ( Jul. 20).

[26] See id.

[27] Id.

[28] Id.

[29] See Vienna Convention on the Law of the Treaties art. 31, May 23, 1969, 1155 U.N.T.S
331.

[30] See Economic and Social Council Res. 1950/319 (Aug. 16, 1950).

[31] See U.N. ESCOR, 11th Sess., 158th mtg., U.N. Doc. E/AC.7/SR.158 (Aug. 15, 1950).

[32] See Vienna Convention on the Law of the Treaties, supra note 29.

[33] See Paul Weis, The Refugee Convention, 1951, The Travaux Préparatoires Analysed
with a Commentary by the Late Dr. Paul Weis (1995).

[34] Id.

[35] Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra
note 25.

[36] Id.

[37] See H.R.C. General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26,
2004), ¶2; Dinah Shelton, The Oxford Handbook of International Human Rights Law
510 (2013); Walter Kälin and Jörg Künzli, The Legal Nature of Human Rights Obligations, in
The Law of International Human Rights Protection (2d. ed., 2019) 86.

[38] See id.

[39] Jean S. Pictet, The Geneva Conventions of 12 August 1949: Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (Geneva: Int’l Comm. Of
the Red Cross ed., 1958), comments on common Article 1.
[40] Erika de Wet, The International Constitutional Order 55 (Cambridge University
Press ed., 2008).

[41] Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Judgment, 1951 I.C.J. Rep 15, ¶ 23 (May 28).

[42] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium

v. Senegal), supra note 25.

[43] Linos-Alexander Sicilianos, The Classification of Obligations and the Multilateral

Dimension of the Relations of International Responsibility, 13 Eur. J. Int’ L. 1127, 1135 (2002).

[44] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium

v. Senegal), supra note 25.

[45] Vienna Convention on the Law of Treaties art. 19(c), May 23, 1969, 1155 U.N.T.S 331;
Pok Yin Stephenson Chow, On Obligation Erga Omnes Partes. 52 Georgetown J. Int’l L.
469 (2020).

[46] Weis, supra note 33.

[47] Commentary on The Refugee Convention 1951 Articles 2-11, 13-37, United Nations High
Comm’r for Refugees (1997).

[48] United Nations High Comm’r for Refugees, Note on the Principle of Non-refoulement,
U.N. Doc EC/SCP/2 (23 August 1977).

[49] Refugee Convention 1951 art 33, Apr. 22, 1954, 189 U.N.T.S 150.

[50] Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol
Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva,
Switzerland, 12-13 Dec. 2001, U.N. Doc. HCR/MMSP/2001/09, (16 Jan. 2002).

[51] Application of the International Convention for the Suppression of the Financing
of Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukr. v. Russ.), Provisional Measures, 2017 I.C.J. Rep. 104, ¶ 63
(Apr. 19).

[52] UNHCR EC Conclusion No.79 ¶ (i) (1996); G.A. Res. 51/75, ¶ 3 (Feb 12, 1997).

[53] UNHCR EC Conclusion No.17 ¶ (b) (1980).

[54] UNHCR EC Conclusion No. 65 ¶ (c) (1991).

[55] See G.A. Res. 48/116, ¶ 3 (24 Mar., 1994); G.A. Res., 49/169 ¶ 4 (Feb. 24, 1995); G.A.
Res. 50/152, ¶ 3 (Feb. 9, 1996); G.A. Res. 51/75, ¶ 3 (Feb. 12, 1997).

[56] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.),
supra note 25.

Cover photo: Mstyslav Chernov/Unframe, CC BY-SA 4.0 license

(https://creativecommons.org/licenses/by-sa/4.0/deed.en).