Are there exceptions to the principle of non-refoulement?

Abstract

This research project engages in an evaluation of the non-refoulement principle. The study has two important components: the breakdown of non-refoulement’s general application and the assessment of the exception clause. Protection from expulsion or return (refouler) to a persecuting territory is a fundamental safeguard that all asylum seekers and refugees have. However, under Article 33(2) of the 1951 Convention there are exceptional circumstances to refoulement’s legitimisation. The exception clause includes two exceptions to the right of non-refoulement: the national security exception and the danger to the community exception. Various authors on the subject have put forward differing interpretations of the exceptions’ application. Notwithstanding, be it narrowly or broadly scrutinised, most have acknowledged the exceptions to be valid. Issues arise when commentators delve into the interrelationship between nonrefoulement and the jus cogens norm. Indeed, by its very nature, the latter concept permits no derogation, meaning that even in the most extreme circumstances the principle of non-refoulement would subsist. Such stipulations must be handled with caution due to the global community being on high alert owing to the enormous amount of treats of international terrorism. The conflict between individual rights and international and national security interests is also highlighted. The inclusion of the exception clause within the law creates a line between the two rights. Here, both the fundamental rights of the individual and those of the nation at large are being catered for. Application of the exceptions must, however, remain restrictive and utilised only in the most extraordinary of circumstances.