Non-Refoulement At Sea And Asylum Protection

Non-Refoulement At Sea And Asylum Protection

1. Introduction

Immigration of persons poses serious socioeconomic and political ramifications to the hosting nations, causing inherent attitudes of rejection of unauthorized and uncontrolled entry of persons across territorial borders. Most important factors of national security dominate reasons of denial of free entry of persons into a country. However, there are certain humanitarian situations that compel governments and citizens of the international community to hold human rights associated with mass movement of people with sensitivity that it deserves. Refusal of nations to grant asylum to any person in modern history is evidenced by he numerous treaties and conventions attempting to compel states to extend such acts of grace. The international law regarding human right such as protection and life envisages the probability of reluctance of states to admit persons into their territories on various grounds such as national security, particularly during this period when terrorism is on the increase. Intricate issues of crises in the human society such as wars and mass displacement raise humanitarian conditions that urgently need attention due to the direct and weighty matter of life threatening challenges forcing asylum seeking. The international community identifies the need for cooperation among countries for non-conventional immigration and admission of civilians facing life-threatening challenges from their home country. Despite the fact that the requirements of registration of mass asylum seekers appears to follow certain immigration formalities, the risks faced by such asylum seekers form the basis of admission as a matter of urgency.

The precipitating factors that caused widespread displacement of persons across the world included the world wars, and the United Nations General Assembly made the recognition of the humanitarian nature of this problem in 1946. Among the major resolutions to the effect of resolution of the refugee condition was Resolution 8 (I) that barred forceful return of displaced persons to their countries of origin after the war. The formation of the International Refugee Organization in 1946 is testament to the resolve and commitment of the world leadership at the UN. Its ambitious establishment brought important success in the recognition of refugee status as well as protection against hostility of various forms. However, its future faced the threats of the Cold War that ensued after the laying of the foundation of the United Nations. Its reinforcement came by way of stronger organs, agencies and policies at the helm of the United Nations Organization. Important strides towards such reinforcement are synonymous with the adoption of the Universal Declaration of Human Rights that strongly brought into light the challenges faced by the refugees and further provided ground for a legal regime to deal with protection of asylum seekers.

The international law dealing with treatment of refugees crossing into the territory of another state prescribes certain approaches, which are complex, particularly if the border in question involves crossing territorial waters. Human rights offices such as the United Nations High Commissioner for Refugees (UNHCR) dedicate a close monitoring and advocacy role in handling treatment of refugees when seeking asylum. The above briefly mentioned concepts highlight the principle of non-refoulement and asylum protection that major international conventions acknowledge and the following discourse attempts to highlight the involved perspectives in detail.

2. The Non-Refoulement Principle

General Application

Article 14 of the Universal Declaration of Human Rights includes the non-refoulement principle as among the non-derogable rights, which civilians must enjoy from world governments at all circumstances. Non-refoulement principle is the fundamental concept of international law binding world governments to ensure protection of civilians running away from aggression and persecution from their home country instead of turning them away to the harsh conditions. Article 14 of the Universal Declaration of Human Rights therefore provides assurance to refugees and asylum seekers of the dedication and commitment of the international community to uphold fundamental human rights to life. Among the main human life threats assured through the protection of asylum seekers, protection from torture, degrading treatment, cruelty and unjust punitive treatment among others. By forcing refugees and asylum seekers to retreat to such conditions, the authorities at the state borders would be violating international law and fundamental human rights as contained in the Universal Declaration of Human Rights. Sources of the non-refoulement principle and law are customary international law as well as the trucial law of the international community.

The beneficiaries of the legal expectation of the international community on the non-refoulement principle are refugees as identified under various international conventions and protocols. The determination of the refugee status raises complications to the observance of the principle particularly if little information or its unreliability concerning the influx of asylum seekers. National security threats from external aggressors posing as asylum seeking civilians raise concerns in the implementation of the implementation of the non-refoulement principle. However, the requirements of the legal provisions of the principle dictate that asylum seekers should remain at the hosting territory until reliably verified that the conditions of their place of origin hold no threat to their security. The subsequent allocation of status of the persons seeking accommodation under such circumstances as either refugees or asylum seekers follows initial stage of allowing entry into a safe environment before any deliberations. This follows the fact that illegal immigrants may opt to take advantage of protection of refugees and asylum seekers without the threshold of admission that considers life-threatening conditions from the place of origin.

Protection of all asylum seekers under the principle of non-refoulement is therefore not subject to the status of the persons at the earliest instance of entry since it is difficult to ascertain the authenticity of the threat claims. In the interval to the establishment of the refugee status of the entrants, authorities must comply with the provision of protection even if the determination proves otherwise. International legal procedures apply in the determination of the refugee or asylum seeker status of the applicant, to reveal the genuine position of the law that protects such people from aggression from their place of origin. Protection of persons citing threats such as war or civil strife under the circumstances captured in the non-refoulement principle therefore entails a standardized humanitarian approach prescribed by the international community for purposes of complying with human rights.

Non-Refoulement at Sea

International law guidelines in the treatment of territorial waters and the intrusion likely to emerge from unlawful entry of vessels provide for the jurisdictions as contained in United Nations Conference on the Law of the Sea (UNCLOS). Territorial waters within which the jurisdiction of the asylum nation falls includes the 12 nautical miles portion of sea from the shore (UNCLOS II) and another 200 nautical miles, which were later, added during the 1973 deliberations of UNCLOS III. Considering the timelines of implementation of the UNCLOS resolutions as well as the mandate of the UNHCR, jurisdiction over irregular entry of persons into territorial waters changed. Prevention of entry of illegal immigrant vessels can be enforced however, if the contract state has reasons to believe that its security is at stake from entry of the passengers in the vessel. Under the circumstances that the irregular entry of the vessel is due to asylum seeking reasons, the asylum country is bound by article 31 of the Refugee Convention of 1951 to provide protection of the passengers. As highlighted above, the right to life and other freedoms from hostility experienced in the country of origin precede any territorial integrity interests that the asylum country would want to protect. The first state where the refugee vessel arrives while running away from persecution and hostility has the responsibility under international law to protect asylum seekers against the conventional territorial waters regulations as outlined under UNCLOS. The concept of territorial asylum under such a setting places the burden of protecting persons fleeing from life threatening conditions in their home country by the first state where they seek refuge without being turned away.

2.1 The Principle of Non-Refoulement in the 1951 Refugee Convention

As mentioned above, the UN’s commitment to provide protection for the refugees was a process that began after widespread displacement of people following the WWII. Since the IRO found pressure from the Cold War, the General Assembly resolved to introduce its replacement with a subsidiary organ having more mandate and capacity to confront the challenges posed by the tensions in the cold War. The UNHCR came into existence and ready for operations commencing on 1 January 1951, initially with a three-year mandate, then extended to a five-year renewable mandate, which eventually took a permanent status when revised in 2003. The teething challenge of refugees over the life of the UNHCR caused such long-term redesign of the UN’s policy and agency approach to the problem. Among the major provisions of the 1951 Convention Relating to the Status of Refugees, the High Commissioner’s mandate in discharging protector roles to the refugees at the international level dominates the convention. Alternatively, the functions of the High Commissioner in offering cooperating to the affected governments to deal with refugee problems appear.

Despite the fact that the non-refoulement concept adopted in the drafting of the 1951 Convention Relating to the Status of Refugees is clear in the definition of the obligations of states in offering protection to refugees, it is not clear who qualify to be refugees. In Articles 31 and 33, persons qualifying for protection as refugees in the 1951 Convention Relating to the Status of Refugees must face or expect to face life-threatening situations in their countries. It is therefore correct to state that the ambiguity in the definition of the classes of individuals facing threats to warrant refugee protection must have posed serious implementation challenges to the 1951 Convention. The form of persecution that the 1951 Convention Relating to the Status of Refugees proposed was not clear in definition, thereby making it difficult for countries to identify the real refugees in genuine need of protection.

In the non-refoulement principle of 1951, Convention Relating to the Status of Refugees as contained in Article 33, the definition of the circumstances under which involved protection benefits would qualify stand out. Free acceptance of entry of individuals freeing hostility was adopted except in the circumstances when such individuals posed serious security threats to the hosting country or was running away from criminal liability in the country of origin. However, the revelation of the threat posed by the person posing as a refugee did not warrant sending back to the country of origin or to any other country as envisaged in the 1951 convention. Such sending back to possible threat to the lives of the asylum seekers formed the non-refoulement concept for refugees’ protection, despite the revision needs as witnessed later in other versions of refugee protection Conventions. Under such circumstances of entry, the 1951 Convention Relating to the Status of Refugees provides for waiver of punishment from the illegal entry in to the host country. Alternatively, the Convention provides for the freedom from expulsion of individuals in such irregular entry, by virtue of the risks to life experienced from the country of origin. Article 9 provides that exceptional steps may however come into force in exercise of national security practices when such persons present undoubted risks to national security.

2.2 The 1967 Protocol

Modifications to the 1951 Convention by the 1967 Protocol occurred when a colloquium consisted of 13 international law professionals convened in Bellagio, Italy for review of the 1951 document. A unanimous declaration favoured retention of the original document other than overhauling it, but led to certain amendments and additions. A major provision of the Protocol targeted the conspicuous non-compliance and failure for ratification based on various presumed legal complexities. The Protocol undertook to eliminate the complexities by making reservations where member states could enforce its provisions exceptionally through circumventing strict ratification engagement. Despite the fact that the interpretation and application of the Protocol appears like an annexure to the 1951 Convention, it is largely an independent document making reliance on much of the content of the Convention. As an illustration of the independence in the provisions of the two documents, certain member states acceded to both of them while not all of them ratified the 1951 Convention.

The Protocol introduces certain definition attributes not contained in the 1951 Convention such as with regard to the genuine reason that requires recognition under asylum protection. “Well founded” threshold for the determination of the threat of persecution faced by asylum seekers in their home country is a standard that the Protocol introduces. As such, the definition of appropriate definition of genuine refuge and asylum seekers eliminates the ambiguity existing in the 1951 version.

Other Legal Regimes


i) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Article 3 of the CAT reiterates the need for the international community to embrace protection of helpless persons running away from persecution by offering hospitality on humanitarian grounds.

ii) International Covenant on Civil and Political Rights (ICCPR) of 1966

In Article 7 of the ICCPR, similar provisions of requirement of international community to offer accommodation and protection to asylum seekers and refugees are provided.

iii) Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War

The 1949 Geneva Convention relative to the Protection of Civilian Persons in Times of War resolved to provide for prohibition of transfer of persons running away from their home country for fear of persecution on political or religious positions.


iv) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

The 1950 ECHR dedicates Article 3 to dealing with non-refoulement of asylum seekers in Europe on grounds of human rights protecting individuals against persecution in their home country.

v) American Convention on Human Rights (ACHR)

1969 version of the ACHR has Article 22(8) also recognizes the right of persons to protection by the asylum state against persecution and hostility that they run away from.

vi) African Charter in the Protection of Human and People’s Rights

The Bajul Charter of the African continent’s governments contains the resolve to discourage transfer of asylum seekers back to a hostile home environment.

3. The Obligations of the Principle of Non-Refoulement

Under the principle of non-refoulement, every asylum state has the obligation of giving entry for asylum and refuge seekers as a matter of urgency. Despite the concerns of asylum seekers potentially disguising their identity thereby posing threats to national security of the host country, the non-refoulement principle dictates that outright rejection of entry by such people is prohibited. The initial step in such circumstances is considering the urgency of the matter of life and death posed by the stay in country of origin and mitigating possible life loss from such risks. The least expectation of the treatment of refugees in dire need of being saved from persecution is temporary accommodation pending verification of the refugee status. Determination of the genuineness of the request for refuge or asylum follows the admission of the persons using certain laid down procedures.

Provision of protection to the persons seeking asylum against possible hostility in the asylum country is also a clear mandate dictated by international law. Protection against possible internal and external aggression must be provided to the asylum seekers by the government of the asylum country. In light of the conditions under which refugees and other homeless asylum seekers experience at the point of entry, several other threats face them, maybe even risky than what they could be running away from. It is the obligation of the host nation to ensure that internal threats against the survival of the asylum seekers do not endanger their stay.

3.1 Rescue and Search at Sea

Whereas irregular navigation of other nations’ territorial waters is prohibited by most international laws such as UNCLOS, there are regulations under the same laws with regard to treatment of persons sailing in the sea and in need of any kind of assistance. Article 98 of UNCLOS specifically highlights the approaches to be engaged in handling situations where passengers and crew of vessels sailing with clear flag identification are in danger. Lost persons must be assisted to find their way as provided for in sea conventions. UNCLOS also provides for the expeditious rescue of passengers and crew in distress when called upon to offer such assistance. Alternatively, masters of ships are required to provide details of the vessels when involved in accidents such as collisions. Under such circumstances, the life of persons facing forms of danger while in the sea must be secured as expeditiously as possible, irrespective of the legality of their entry into territorial waters since factors such as getting lost also come into consideration.

Further provisions on the treatment of persons under distress in sea are outlined in 1974 Convention for the Safety of Life at Sea (SOLAS), 1979 International Convention on Maritime Search and Rescue (SAR Convention) and 1989 International Convention on Salvage. These conventions contain provisions to the effect that the masters of ships are required to provide assistance to vessels facing danger in the sea, without endangering their vessels and the lives of other persons boarding them. To strengthen the requirement of the rescue requirements, these provisions provide that nations must provide measures that would make it necessary to make rescues in such instances. The requirement of assistance and rescue of persons facing distress state that the contracting governments must undertake all measures within their reach to save lives in such situations with minimum disruption of the intended voyage and thereafter ensure disembarkation soonest possible when sure that lives are not in danger.

3.2 Interception on the High Seas

International law allows states to intercept and interdict vessels navigating outside their territorial waters when suspected and unidentified, usually by lack of nationality or flag. This privilege originates from the right of visitation of high seas to counter criminal practices where naval personnel can invoke international law to pursue such vessels outside the conventional territorial waters. Such interception practices may also target a vessel infringing on international identification requirement by flying more than one flag. In terms of the treatment of the intercepted vessels, non-refoulement privileges are not applicable and the captured vessel can be sent back to the port of origin. This is partly due to the fact that the intercepted vessel violates international laws of navigation and there is no immediate danger from the circumstances of the interception. In the application of the term refouler (repel), in international law interpretation, it is effectively replaced with return in the case of interception, which is thereby not bound by rules of non-refoulement.

4. Exceptions to Non-Refoulement Principle

When persons presumed guilty of certain crimes in their countries of origin are identified at the point of entry seeking refuge, countries offering asylum have a right to circumvent the non-refoulement requirements. The reason of denial of refugee status to such individuals is posing a threat o national security. Additionally, it is possible in cases where the presence of certain persons in the asylum country would disrupt public order, enabling governments to find grounds for denial of non-refoulement privileges. Alternatively, governments may cite certain justifications from extreme cases of necessity to respond in a particular manner defying non-refoulement. There are standards of measure of the extremity of the cited necessity, which must be demonstrated to the international community in order to allow a country to suspend non-refoulement compliance. As an illustration, it must be demonstrated that the case has essential interest in light of national matters, which would otherwise result in a grave and imminent peril. Mass influx can be applied as grounds to invoke suspension of non-refoulement compliance since threats such as environmental damage, economic instability and social crises arise in sudden increase in population figures.

5. Conclusion

The principle of non-refoulement forms the foundation of refugees’ and asylum seekers’ accommodation and protection across the world. It would be difficult for refugee programs to remain functional without an international regime controlling how humanitarian crises such as mass displacement of people are handled. The origin of the principle of non-refoulement traces back to the World War II, which witnessed unprecedented levels of displacement and relocation in search of refuge, with their home countries highly compromised in war torn regions around the world, particularly in Europe. United Nations efforts over the years recognized the humanitarian crisis and introduced the legal regulations that would handle the delicate situation.

Among the most celebrated principle in various international legal regimes is non-refoulement, which prohibits repulsion of asylum seekers and refugees thereby preventing exposing them to the hostile environment from which they could be running. As a foundation for humanitarian requirement in various international refugee protection legal regimes, non-refoulement captures basic human rights and freedoms as contained in the Article 14 of the Universal Declaration of Human Rights. Arising perspectives of treatment of foreigners in need of assistance in the sea also relate with the principle of non-refoulement, where danger in the vessel boarded ought to be cleared at all costs irrespective of legality issues of navigation. Search and rescue operations are therefore based on the need to save lives before the legality of the navigation of territorial waters, just as non-refoulement admits refugees before determining the legal status of entry. A few exceptions however hinder the complete compliance with the provisions of non-refoulement, with national security dominating excuses given in the modern society ravaged by terrorism risks.


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