The Implementation of the Principle of Non-Refoulement in Africa. The Protection of the Rights of Refugees in situation of Massive Influx
Research Paper (postgraduate) 2017 33 Pages
1st PART: Legal basis of the principle of non-refoulement, its Beneficiaries, its Territorial application and the Exceptions to this principle
Chapter 1: The Principle ofNon-Refoulement under International Human Rights Law
Chapter 2: The beneficiaries, Territorial Application and the Exceptions to the principle of non-refoulement
2nd PART: Practice of States in regard to the principle of non-refoulement: The Case of African States whom receive asylum-seekers on their territory
Chapter 3: Practice of African States in regard to the principle of non-refoulement: The Case ofDemocratic Republic of Congo, Burundi, Tanzania (Rwandan refugees), Sierra Leone, Ivory Coast, Ghana, Togo, Nigeria (Liberian refugees) and Cameroon (CAR refugees)
Chapter 4: Recommendations for the effective implementation of the principle of nonrefoulement by all the African States: Some Proposals for change in Africa
SIGLES AND ABBREVIATIONS
Abbildung in dieser Leseprobe nicht enthalten
Prior to the 1930s this principle did not exist at international law. During the first half of this century the idea that it was fundamentally wrong to return refugees to places where they would clearly be in danger was mentioned occasionally by states in agreements or statutes, or was evident in the practice of some states. Although by 1905 it had been enshrined in a UK statute that refugees with a fear of persecution for political or religious reasons should be allowed into the country, it was not until later that the idea of non-refoulement of such people became widely accepted. This idea of non-refoulement was first expressed at international law in the 1933 Convention relating to the Status of Refugees which, however was ratified by very few states.
This principle arises out of an international collective memory of the failure of nations during World War II, to provide a safe environment to refugees fleeing war or torture from hands of the Nazi regime. Today, the principle of non-refoulement ostensibly protects persons from being expelled from countries that are signatories to the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Convention Relating to the Status of Refugees and the 1984 Convention against Torture. The word non-refoulement derives from the French refouler, which means to drive back or to repel. Non-refoulement is a principle of customary international law prohibiting the expulsion, deportation, return or extradition of an alien to his State of origin or another State where there is a risk that his life or freedom would be threatened for discriminatory reasons. This principle is often regarded as one of the most important principles of refugee and immigration law. Since the principle of non-refoulement has evolved into a norm of customary international law, States are bound by it whether or not they are party to the Convention of1951 relating to the Status ofRefugees.
According to an expert in refugee law called Guy S. Goodwin-Gill defines the principle of non-refoulement as the idea that: ‘no refugee should be returned to any country where he or she is likely to face persecution or torture’.5 But in some cases some refugees where been refused to enter into another country simply because they were refugees. This shows a violation of the principle of non-refoulement. The expulsion of persons who have the right to be recognised as refugees is what we call non-refoulement.
Under international law, the principle of non-refoulement forbids the rendering of a true victim of persecution to his or her persecutor. Generally, the persecutor in mind is a state actor. It is a principle of both the customary and trucial law of nations.  Non-refoulement is a key facet of refugee law, which concerns the protection of refugees from being returned or expelled to places where their lives or freedoms could be threatened. Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales. It is debatable whether non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a person into a jurisdiction, usually his or her home-country, where that person might be again subjected to persecution
As from the above, one can asked himself if the principle of non-refoulement is effectively (really) implemented in Africa, by the 54 African Countries having their territories and boundaries. The problem here is effective and efficient implementation of the principle of non-refoulement by African Countries. This problem gives rise to 2 questions whom are to what extend is the principle of non-refoulement and its parameters promoted and protected under international law (Part 1). And to what extend to States implement the principle of non-refoulement at their boundaries (Part 2).
1st PART: Legal basis of the principle of non-refoulement, its Beneficiaries, its Territorial application and the Exceptions to this principle
The principle of non-refoulement was first expressed by the year 1951 in the UN-Convention relating to the Status of Refugees, which, in Article 33(1) provides that: ”No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. ”9 This is the reason why in this first part of the work, we will look at the legal basis of this principle of nonrefoulement as it is been promoted and protected under International Human Rights Law (Chapter 1). This principle its addressed to a category of people seeking for asylum in a given territory or country, and it constitute what we call the beneficiaries and territorial application of the principle of non-refoulement (chapter 2).
Chapter 1: The Principle of Non-Refoulement under International Human Rights Law
In this first chapter, we will be looking at the promotion and protection of the principle of non-refoulement under international law, more specifically under international human rights law. This principle comes out as binding to States because it is been protected under so many international Conventions which serves as a base to international law. This principle of nonrefoulement is stipulated under international human rights law (Section 1) and under international customary law (section 2).
Section 1: Non-Refoulement obligations under international human rights law
In this first section of our work we are going to look at the principle of non-refoulement under international human rights law, were we will look at non-refoulement under 1951 Convention relating to the status of refugees and its additional protocol of 1967 (Paragraph 1) and the non refoulement under other International and regional conventions of International human rights law (paragraph 2).
Paragraph 1: The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
The Convention itself deals with various aspects of law relating to refugees, and remains the primary instrument of refugee law. It was intended to consolidate the various international laws and practices impacting on refugees and asylum-seekers. It was also recognized that certain countries bore a much bigger burden than others with respect to the refugee flows; therefore it was imperative that an international approach to the problem be taken. The 1951 Convention defined who exactly was to be viewed as a refugee, and spelled out what rights these people would have. Since 1951, 137 states have signed the Convention, thereby accepting the principle of non-refoulement expressed there in.
The principle of non-refoulement constitutes the cornerstone of international refugee protection. It is enshrined in Article 33 of the 1951 Convention, which is also binding on States Parties to this convention. Article 33(1) of the 1951 Convention provides: “No Contracting State shall expel or return (“refouler ”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his (or her) race, religion, nationality, membership of a particular social group or political opinion.” The protection against refoulement under Article 33(1) applies to any person who is a refugee under the terms of the 1951 Convention, that is, anyone who meets the requirements of the refugee definition contained in Article 1A(2) of the 1951 Convention (the “inclusion” criteria) and does not come within the scope of one of its exclusion provisions. Given that a person is a refugee within the meaning of the 1951 Convention as soon as he or she fulfills the criteria contained in the refugee definition, refugee status determination is declaratory in nature; a person does not become a refugee because of recognition, but is recognized because he or she is a refugee. It therefore follows that the principle of non-refoulement applies not only to recognized refugees, but also to asylum seekers.
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”. It applies not only in respect of return to the country of origin or in the case of a stateless person or 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.
The principle of non-refoulement as provided in Article 33(1) of the 1951 Convention does not entail a right of the individual to be granted asylum in a particular State. 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. As a general rule, in order to give effect to their obligations under the 1951 Convention and the 1967 Protocol, States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures.
The non-refoulement obligation under Article 33 of the 1951 Convention is binding on all organs of a State party to the 1951 Convention and the 1967 Protocol as well as any other person or entity acting on its behalf. Also, the obligation under Article 33(1) of the 1951 Convention does not send a refugee or asylum-seeker to a country where he or she may be at risk of persecution. The exceptions to the principle of non-refoulement under the 1951 Convention are permitted only in the circumstances expressly provided for in Article 33(2), which stipulates that: “the benefit of [Article 33(1)] 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 [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
Within the framework of the 1951 Convention and its 1967 Protocol, the principle of non-refoulement constitutes an essential and non-derogable component of international refugee protection. The central importance of the obligation not to return a refugee to a risk of persecution is reflected in Article 42(1) of the 1951 Convention and Article 7(1) of the 1967 Protocol. The fundamental and non-derogable character of the principle of non-refoulement has also been reaffirmed by the Executive Committee of UNHCR in its numerous conclusions since 1977. Similarly, the General Assembly has called upon States “to respect the fundamental principle of non-refoulement, which is not subject to derogation.” 
Paragraph 2: The principle of non-refoulement under the International Covenant on Civil and Political Rights, under the UN Convention against torture, under the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa and under the Geneva Conventions of 1949 and their Additional Protocols.
- The principle of non-refoulement under the International Covenant on Civil and Political Rights,
Article 13 of the International Covenant on Civil and Political Rights (ICCPR) states that: “anyone who is lawfully within the territory of a state shall not be expelled from that state without due process.”23 However, this rule does not have to be followed if national security is at stake. The article does not mention refugees specifically, and only refers to aliens ‘lawfully’ within a state. Therefore the article’s application is somewhat limited. Article 7 of the ICCPR is also relevant as it protects against torture. The Human Rights Committee has taken this provision into account when dealing with cases of expulsion and extradition.
The obligations under the 1966 Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, also encompass the obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 (right to life) and 7 (right to be free from torture or other cruel, inhuman or degrading treatment or punishment) of the Covenant. The prohibition of refoulement to a risk of serious human rights violations, particularly torture and other forms of ill-treatment, is also firmly established under regional human rights treaties.
- The principle of non-refoulement under the UN Convention against Torture
The relationship between torture and refugees is even more relevant when the Convention against torture and other cruel, inhuman or degrading treatment or punishment is considered. Article 3(1) of this convention provides 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 article also provides that authorities must look at whether there is a consistent pattern of serious human rights violations in the country in question. As one writer has pointed out, any state returning refugees to a state where torture is being practiced would become an accomplice to the crime of torture. Article 3(1) provides broader protection than the 1951 Convention in that it is an absolute right, however, its effect is restricted in that it only applies to situations involving torture.
 Robert L. Newmark 'Non-Refoulement run afoul: The Questionable Legality of Extraterritorial Repatriation Programs' (1993), Wash U.L. p 71
 Goodwin-Gill, above, 118
 Goodwin-Gill, above, 118
 The Principle of non-refoulement : online at http://www.elaw.cz/clanek/the-principle-of-nonrefoulement- what-is-its-standing-in-international-law (accessed on the 18th of August 2016)
 Guy S. Goodwin-Gill The Refugee in International Law (2 ed, Clarendon Press, Oxford, 1996) p. 117.
 "Migrants: MEPs endorse search and rescue rules to prevent further deaths at sea". European Parliament. And the "New EU rules to protect migrants outlaw ‘pushback’ operations". The Irish Times. 18 April 2014.
 Kalin et al.; Zimmermann ed. (2011). The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: a Commentary; Article 33, para. 1. New York: Oxford University Press Inc. p. 1345-1346.
 Jean Allain, 2001, "The jus cogens Nature of non-refoulement", International Journal of Refugee Law, Vol. 13, Issue 4, pp. 533-558.
 Article 33(1) of the United Nations Convention of 1951 relating to the Status of Refugees
 United Nations Convention Relating to the Status of Refugees (adopted on the 28 July 1951)
 United Nations High Commissioner for Refugees 'Treaty Status' http://www.unhcr.ch/html/menu3/b/treaty2ref.htm (last accessed 19/9/01)
 Article 1(2) of the 1951 Convention relating to the status of refugees, adopted on the 28 of July 1951
 The 1951 Convention relating to the status of refugees, adopted on the 28 of July 1951
 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.
 Idem, 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-penalization of entry (Article 31) and non-refoulement (Article 33). However, they do not set out procedures for the determination of refugee status as such. Yet it is generally recognized that fair and efficient procedures are an essential element those who have not had their status formally declared.
 Under applicable rules of international law, this applies to the acts, or omissions, of all organs, sub-divisions and persons exercising governmental authority in legislative, judicial or executive functions, and acting in that capacity in the particular instance, as well as to the conduct of organs placed at the disposal of a State by another State, even if they exceed their authority or contravene instructions. Pursuant to Articles 4 to 8 of the Articles of State Responsibility, the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. The Articles of State Responsibility were adopted by the International Law Commission
 Article 42(1) of the 1951 Convention relating to the status of refugees, adopted on the 28th of July 1951. And Article 7 (1) of the 1967 protocol to the 1951 Convention relating to the status of refugees.
 See, for example, Executive Committee, Conclusion No. 6 (XXVIII), reaffirming "the fundamental humanitarian principle of non-refoulement has found expression in various international instruments adopted at the universal and regional levels and is generally accepted by States.
 See, for example, the General Assembly's Resolution A/RES/51/75, adopted on the 12th of February 1997.
 Article 13 of the International Covenant on Civil and Political Rights (19 December 1966)
 David Weissbrodt and Isabel Hortreiter 'The Principle of Non-Refoulement: Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the NonRefoulement provisions of other international human rights treaties' (1999) 5 Buff. Hum. Rts.L.Rev.1, 43.
 1966 International Covenant on Civil and Political Rights, entered into force 23 March 1976
 Article 6 and 7 of the 1966 International Covenant on Civil and Political Rights
 See, for example, the jurisprudence of the European Court of Human Rights, which has held that nonrefoulement is an inherent obligation under Article 3 of the ECHR in cases where there is a real risk of exposure to torture, inhuman or degrading treatment or punishment, including, in particular, the Court's decisions in Soering v. United Kingdom.
 Convention against Torture or other Cruel, Inhuman or Degrading Treatment (10 December 1984) entered into force 26 June 1987
 Roman Boed 'State of Necessity as a Justification for Internationally Wrongful Conduct' (2000) 3 Yale Human Rights and Development, L.J.1, p. 21.
 Idem, p 22
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