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Critically examine its contents and scope and whether it has acquired the status of customary law
In seeking to evaluate the concept of non-refoulement in relation to both its contents and scope along with as to whether it could be said to have acquired what is considered to be the status of customary law, there is a need for this essay to first look to evaluate what the concept of non-refoulement actually consists of by way of a definition along with what areas of law it relates to internationally. This will then principally mean looking at the law as it relates to refugees internationally with a view to determining whether the concept of non-refoulement has acquired the status of customary law by looking to explain what customary law is defined as being with a view to ascertaining whether non-refoulement falls within this category. With this in mind, with a view to better illustrating this discussion it will be necessary to focus on the position in the UK and with regard to the remit of the European Convention on Human Rights (ECHR) 1950 through consideration of examples of decisions that have been reached in this regard. Finally, this essay will seek to conclude with a summary of the key points derived from this discussion with regard to what the concept of non-refoulement consists of in relation to both its contents and scope along with as to whether it could be said to have acquired what is considered to be the status of customary law.
Introduction – What is non-refoulement?
To begin this discussion it is first necessary to define what the principle of non-refoulement consists of in practice. Non-refoulement is looked upon as being a fundamental element of international law specifically pertaining to dealing with refugees (and/or asylum seekers) that is concerned with their protection from them then being returned to locations where they could be subject to violence and the denial of their fundamental rights under the United Nations Universal Declaration of Human Rights (UDHR) 1948. According to Article 13 of the UDHR 1948 it has been recognised that, “Everyone has the right to leave any country including his own, and to return”, whilst Article 14 of the UDHR 1948 then goes on to state “Everyone has the right to seek and to enjoy . . . asylum from persecution”.  Such an understanding of the law in this regard was then only further supported by Article 12 of the International Covenant on Civil & Political Rights 1966 that incorporated recognition of the rights identified under the UDHR 1948 into treaty law. To this effect “(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence” and that “(2) Everyone shall be free to leave any country”. Therefore, this means that the only restrictions upon the recognition of such rights internationally are those that are considered to be “necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized” whilst “No one shall be arbitrarily deprived of the right to enter his own country”.
With this in mind, it has come to be recognised that the remit of the principle of non-refoulement serves to not only make specific reference to a people’s generic repatriation (usually of refugees) into war zones along with other areas that are subject to civil unrest, but also where there is a risk to an individual’s life or freedom would be threatened due to their race, religion, nationality, membership of a particular social group, or political opinion.  To this effect it has been recognised that refugee status under Article 1A(2) of the Geneva Convention Relating to the Status of Refugees (Geneva Convention) 1951 may be claimed where a particular applicant can show they have a ‘well-founded fear of being persecuted’ because of their – (i) social group; (ii) race; (iii) politics; (iv) nationality; or (v) religion for the purpose of the exercising of the principle of non-refoulement. In addition, the applicant also needs to be residing outside the country of their nationality because they are unable or unwilling to accept their homeland’s protection.  However, it is also interesting to note that this definition of what it is to be a refugee has been recognised as competing with regional versions of international law exercised in this regard. By way of illustration, the definitions provided for for refugees by the Organisation of African Unity (OAU) in 1969 and the Cartagena Declaration on Refugees in 1984 suggested other characteristics both partly more widely and partly more narrowly defined.  Nevertheless, the Geneva Convention 1951 and the Protocol from 1967 reformed the definition of what a refugees is provided via the operating principles of the United Nations (UN) along with its susidiary organisations. 
As a result, whilst it may be argued the definition under the Geneva Convention 1951 distinguishes between a domestic/intra-state refugee and an international one so that the law only applies to the latter, the ‘political’ aspect of the persecution is arguably the only acceptable motive for serving to identify someone as a refugee for the purpose of recognition of the principle of non-refoulement.  On this basis, under the Geneva Convention 1951, a refugee has been recognised as somebody who is beyond any country of an individual’s nationality or, in the case of someone without a nationality, is considered to be beyond any country where such an individual was considered last habitually resident and who is unable or unwilling to return and to avail themselves of the protection of that country because of persecution or a well-founded fear resulting from race, religion, nationality, membership in a particular social group, or political opinion.  However, current developments in this area have illuminated this definition of a refugee in relation to the principle of non-refoulement by excluding the increasing number of intra-state refugees in a ‘refugee-like situation’ without moving over national borders.  Therefore, people who can escape disastrous economic, social, environmental, or ecological conditions or those who flee from a general climate of violence are considered to be excluded from the definition of a refugee or are not mentioned in the definition explicitly produced. 
Main Body – How does the concept of non-refoulement relate to the law pertaining to refugees in practice internationally and its development as customary law?
In seeking to consider as to how the concept of non-refoulement relates to the law pertaining to refugees in practice internationally along with its development as customary law, it is to be appreciated that the mandate of the UN High Commissioner for Refugees provides for only those migrants recognised as refugees.  More recently, however, whilst the focus on the recognition of human rights internationally via the UDHR 1948 forms the legal framework for both policies of asylum and refugees after World War II, there is now a much greater emphasis on security to provide a new framework for the emergence of a globally coordinated policy.  Since the mid 1990s, migration has become an increasingly essential component of interstate relations because, until that period, migration was previously discussed mainly in the context of population movements from less developed countries to developed ones.  Such an understanding was then only further reflected by the fact that the Global Commission on International Migration established in 2003 – along with the World Commission on the Social Dimension of Globalisation formed in 2002 – have been looked upon as being instrumental in significant developments with a view to reaching a common understanding of international movements of people.  In addition, the former UN Secretary General Kofi Annan summarised migrations problematic nature in contemporary society in relation to issues of non-refoulement in particular regarding the need to resolve “issues of human rights and economic opportunity, of labour shortages and unemployment, of brain drain and brain gain, of multiculturalism and integration, of refugee flows and asylum-seekers, of law enforcement and human trafficking, of human security and national security”. 
Nevertheless, that does not meant that refugees and emigrants are necessarily in variance with each other because everyone who is labeled as a refugee is considered to be an emigrant.  Furthermore, the apparent ‘push and pull’ factors involved with the theory of migration seeks to unfold the two dimensions that each and every emigrant is meant to be exposed to that are involved with moving between countries internationally.  However, most migrants are forcibly uprooted with roughly 30-40 million that are undocumented, some 24 million internally displaced, and roughly 10 million recognised as being refugees.  Such significant flows of people between states internationally have seemingly served to precipitate conflict and controversy in the recognition of rights of migration so as to not only impact upon migrants but also the receiving communities so migration has become an ever more volatile and contentious political issue with regard to the recognition of the principle of non-refoulement.  The reason for this state of affairs regarding the rights to migrate is largely founded upon clashes of cultures, identities, and religions, along with debates regarding economics, resources, and rights that have polarised public discourse to make the migration debate in this regard somewhat confused to say the least. 
With this in mind, it would seem that the concept of non-refoulement in the context of the law as it relates to refugees is arguably looked upon as being a ‘jus cogens’ (i.e. a peremptory norm) of international law that forbids the expulsion of a refugee into an area where the person might be again subjected to persecution. A ‘jus cogens’ is considered under international law to be a fundamental principle that is considered to be acceptable by the international community as a normative function that there is not any derogation permissible from. This a reflection of the fact that customary international law is considered to be representative of those facets of international law that are derived from out of custom. Allied to the development of law’s general principles, the idea of ‘custom’ has come to be understood by the UN, Jurists, Member States and the International Court of Justice as a significant primary source of international law. Aside from the law as it relates to refugees it is to be appreciated that, by way of illustration, the laws of war have come to be looked upon as traditionally being an issue of international customary law prior to their codification under the Hague Conventions of 1899 and 1907 amongst other legislation.
Most of the national governments in the world today have come to principally accept that customary international law exists; although it is still to be appreciated that there are a number of varied views in relation to the rules included within its remit. For example, the Statute of the International Court of Justice (ICJ) has served to acknowledge that customary international law exists under Article 38(1)(b) that was then also included in the UN Charter by Article 92 this is because the ICJ “whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply . . . international custom, as evidence of a general practice accepted as law”. This has effectively served to mean that the concept of customary international law includes within its remit those ‘rules of law’ that are derived from the consistent conduct of States acting out of the belief that the law required them to act that way. Therefore, it would seem that it is possible for customary international law to be discerned from what is considered to be a marker of customary international law that is a consensus amongst those that have undertaken widespread conduct along with the fulfilment of what is considered to be a discernible view of obligation.
On this basis, in the context of the law as it relates to refugees, ‘refoulement’ as a principle in this regard came to be officially incorporated as part of the Convention Relating to the the Status of Refugees 1951 and is also included in the Protocol of 1967 and the UN Torture Convention 1984 at Article 3. This has effectively served to mean that the principle of non-refoulement has arisen from out of what is deemed to be an international collective memory of countries failure to offer safe sanctuary to refugees fleeing Nazi genocide during World War II.  The seemingly fanatical racist policy that developed in this regard in Germany even prior to the beginning of World War II Adolf Hitler’s Nazi Party’s governing regime is considered to be largely responsible for what is considered to be an unprecedented number of refugees that have been persecuted largely because of their race, ethnicity, or political opinion.  In more contemporary times, the principle of non-refoulement now ostensibly seeks to provide for the protection of recognised refugees and asylum seekers from being expelled from countries that have signed up to the Convention Relating to the the Status of Refugees 1951 and the Protocol of 1967. However, this has not served to prevent specific signatory countries from looking to avoid principles of international law and either looking to repatriate or expel bona fide refugees back with their potential persecutors. By way of illustration, the actions undertaken by Tanzania during the Rwandan genocide of 1994 are alleged to have actively served to violate the principle of non-refoulement. This is because, when the flow of refugees reached a ‘mass exodus’, the government of Tanzania served to close its national borders to over fifty thousand Rwandan refugees fleeing violence of a genocidal nature whilst, in 1996, a further five hundred thousand refugees were sent back to Rwanda from Zaire before the country had achieved what was considered appropriate stability.
It is to be appreciated that a key ‘grey’ area of the law that is most hotly debated amongst signatory circles is with regard to how to interpret Article 33 of the Convention Relating to the the Status of Refugees 1951. The interdiction of transporting refugee ships on the high seas has proved to be a common practice by the US government, raising the question of if Article 33 of the Convention needs a refugee to be within a country or at least within its power to bring about the triggering of the right against refoulement. With this in mind, as of the date of the Convention Relating to the the Status of Refugees 1951, well over a hundred countries governments have looked to sign up to the terms of Convention by officially recognising non-refoulement’s binding principle that was expressed within its remit. A further example of the operation of the principle of non-refoulement arose as of 2007 with the Israeli government looking to jail over 300 refugees from the conflict in Darfur. In view of the fact that a series of laws have been put in place for the purpose of safeguarding the state of Israel against the atmosphere of anti-semitism prevailing within the region, it is to be appreciated that those refugees that are fleeing to Israel with a view to avoiding the problems caused by the conflict in Darfur were jailed to achieve greater national security. However, a little later some 200 of these refugees were eventually deemed to not really be a threat but commonly adhered to guidelines related to repatriation could not be followed at least partially as a result of principles of non-refoulement so that the majority were then released into to Israeli collective work communities to work until there was a sufficient resolution of the conflict in Darfur.
That the remit of the principle of non-refoulement is an area of international concern is not only marked by the position in the poorer countries of the world but also in those that are developed since that is where refugees commonly head to in search of a better life. By way of illustration, in the UK it was recognised by Lord Bingham of Cornhill in R (on the application of Yogathas & Thangarasa) v. Secretary of State for the Home Department  that an individual’s ‘alienation’ from their homeland arises where they are found to be sufficiently in fear for their life so that they need to look to take up residence elsewhere and remain there in relation to the principle of non-refoulement. By way of illustration, it has been found that many Islamic women leave their countries because they are looked upon as being ‘second class’ citizens. This has, therefore, effectively served to mean that if, for example, they fail to go through with an arranged marriage they will have dishonoured their families and be liable for physical punishment and possibly even death without sufficient protection from their own home state government.  It is also to be appreciated at this point, however, it is also important to look to distinguish the difference between persecution and prosecution since the UN High Commissioner for Refugees Handbook recognised “Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim . . . of injustice, not a fugitive from justice”. 
Therefore, in the context of the principle of non-refoulement, there is a need to understand the practice of persecution could be said to consist of looking to pursue someone with malignant or injurious action – especially with a view to oppressing relations for heretical belief – whilst prosecution could also be said to amount to persecution.  However, there is still a need for the UK courts to determine whether ‘fear’ of physical violence and persecution is ‘well-founded’ in a given case  – although some applicants will be considered refugees simply because of the ‘social groups’ they are part of  – whilst others will be sent back to evaluate internal relocations possibility.  In many cases, however, such ‘relocation’ will be unlikely due to differing cultural beliefs even within the borders of a single given country that are also frequently held at the highest levels because many legal systems are founded upon religious teachings.  Policy-makers domestically have also sought to make travelling without identification documents a criminal matter without breaching Article 31(1) of the Geneva Convention 1951.  Moreover, Article 19(3)(b) of the EU Qualifications Directive 2004/83/EC served to make this a reason to disallow an individual protected status that was implemented domestically by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. But then the Geneva Convention 1951 has provided that its many contracting states must provide refugees with a reasonable opportunity to gain admission into another country like the UK rather than simply returning them home to likely persecution. 
Nevertheless, there is also a need to understand that, whilst the EU Qualifications Directive 2004/83/EC may serve to provide common standards of treatment for refugees and those granted ‘subsidiary protection’ who have what are considered to be ‘substantial grounds’ for there to be a risk of persecution, matters remain largely the same domestically under the law.  This effectively served to mean that, whilst in the case of R v. Secretary of State for the Home Department (Respondent), ex parte Bagdanavicius & another  a man failed with a claim that the Lithuanian authorities would not protect him from his wife’s family’s racial wrath,  it is still generally understood any country that knowingly sends someone into such a situation will have breached Article 3 of the ECHR 1950 and/or the UN Convention Against Torture 1984. However, although such an understanding of the law is not absolute, it has similarly been interpreted by the European Court of Human Rights as imposing a prohibition on non-refoulement so, for example, it may be impossible to remove someone from the territory for bureaucratic reasons and political impossibility due to a state of civil unrest found prevailing within the applicant’s homeland. 
By way of illustration, in N v. Secretary of State of the Home Department  it was found that only in the most exceptional circumstances would Article 3 of the ECHR 1950 be engaged to prevent someone without immigration status being returned to a country where they would be expected to die for a lack of medical treatment which would be both inhumane and degrading. Nevertheless, despite the nature of the law that has developed domestically, those applicants seeking to enter the UK with claims that are still to be decided, those who have been refused and not removed from the country and those who cannot be removed will all have ‘temporary admission’ status in this country.  Therefore, such people’s recognition of status has exposed a ‘gap’ under the Immigration Act (IA) 1971 (as amended) that would seem to support the recognition of an individual’s right to migrate over and above those of individual states’ rights to preserve their state sovereignty in view of the exercising of the principle of non-refoulement.  As a result, this understanding of the value of the principle of non-refoulement would seem to imply refugees have been granted status equivalent to residents needed for anyone who has been recognised as having refugee status. 
However, although such a development in UK law has not troubled domestic courts, the view expressed within the European Union (EU) is somewhat different according to the decision in D v. United Kingdom.  This case concerned an appeal for deportation following an individual’s period of imprisonment for drug trafficking because the appellant in this case had had a great deal of medical treatment for Acquired Immune Deficiency Syndrome (AIDS) during his time in prison that he would not have otherwise have had in his home state. Therefore, the appeal was made because the appellant was terminally ill and his deportation was likely to lead to his death and so the court ruled his physical presence ‘for a significant period’ in the UK established a substantive relationship with the state.  Therefore, despite the decision reached in the case of Soering v. UK by the European Court of Human Rights, that meant that there was a duty that was imposed on states to still protect a non-national’s human rights regarding their removal or extradition where they may be persecuted if they are returned to their homeland under the ECHR 1950, a country’s international human rights obligations are only considered to be engaged in exceptional circumstances.  But, whilst domestic policy makers have sought to reinforce the law because of the fear of ‘bogus asylum seekers’ taking advantage of opportunities that may be considered to be rife in the UK, there is still a degree of ‘fragility’ with regards to the law’s ongoing development.  This is because the domestic courts have recognised that public authorities should not utilise their powers provided by statute to decide something “so unreasonable that no reasonable authority” would have reached a like-for-like decision in similar circumstances were such a case to arise again. 
Nevertheless, there still remain some discrepancies in this regard pertaining to how far the principle of non-refoulement should apply. This is because there has also been some doubt as to whether a female applicant for refugee status can claim to be a refugee where they are subjected to, for example, female genital mutilation. The reason for this is that there has come to be recognised that there is a perceived risk there will be a sudden swell in the number of women seeking refugee status in the face of what the western world considers to be little more than a ‘barbaric’ practice perpetrated in parts of Asia and Africa.  Such a view is then arguably only further supported by the judgement of Lord Justice Auld in the case of Secretary of State for the Home Department v. K; Fornah v. Secretary of State for the Home Department  who said it is not considered to be discriminatory to effectively set those who undergo it apart from society in a given country before this was appealed to the House of Lords.  Lord Bingham of Cornhill argued female genital mutilation was ‘discriminatory’ under Article 14 of the ECHR 1950 and a form of persecution of a ‘social group’ under Article 1A(2) of the Geneva Convention 1951.  But then Article 1(F) has provided the Convention does not apply in a number of circumstances including where the asylum seeker has previously committed a serious non-political crime beyond the country where they are seeking refugee status.  Moreover, Article 1(C) of the Geneva Convention 1951 has provided for the termination of its application due to a change of the circumstances in why they were recognised as a refugee and so Article 32 provides for a right of expulsion for matters of national security or public order on the part of public authorities in countries like the UK.
To conclude, having sought to evaluate the concept of non-refoulement in relation to both its contents and scope along with as to whether it could be said to have acquired what is considered to be the status of customary law,
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