BY JANE MCADAM (Director, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW; Scientia Professor of Law and Australian Research Council Future Fellow, UNSW; Non-resident Senior Fellow, The Brookings Institution, Washington DC)

McClelland Sculpture Park + Gallery

refouler: to push or force back, to cause to turn or flow back (1611; c1175 in Old French in sense ‘(of the sea) to flow back’ (Oxford English Dictionary)

Non-refoulement is the international legal principle that protects asylum seekers and refugees from being sent to any place where they have a well-founded fear persecution, or where they face a real risk of other serious human rights abuses. It lies at the heart of the international regime to protect people from harm in their own countries.

The principle of non-refoulement is central to the effective operation of the 1951 Refugee Convention, which is the international treaty adopted after the refugee crisis during the Second World War, and which sets out the rights of refugees and countries’ obligations to them.  Australia chose to sign up to this treaty in 1954, and has essentially translated its protection obligations into national law through the Migration Act.

The Refugee Convention defines a ‘refugee’ as someone with a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’, who is ‘outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.  In other words, a refugee is a person who cannot go home because there is a real chance that they will be subjected to persecution on account of their political views, ethnicity, or sexuality, and so on.  People are protected from persecution by government officials, as well as persecution by private actors where the government is unable or unwilling to prevent it.

As human rights law has developed, so has the principle of non-refoulement.  International human rights treaties prevent countries from sending people to places where they would face a real risk of being arbitrarily deprived of life (including, in some jurisdictions, by virtue of the death penalty); torture; cruel, inhuman, or degrading treatment or punishment; enforced disappearance; or a flagrant denial of a fair trial.  Australia voluntarily signed up to these treaties and has also implemented some of these obligations in domestic law.  Protection based on human rights law is typically granted where the feared treatment does not reach the level of severity of ‘persecution’, or where there is a risk of persecution but it is not linked to one of the Refugee Convention grounds.  

Under international law, the principle of non-refoulement applies wherever public officials exert control – whether in their own territory, in joint operations in another country, or on the high seas.  This means that it is not lawful to send back boats of asylum seekers without ascertaining whether or not they are in need of protection.  Doing so could expose them directly to harm if they are forced back to the country where they are at risk.  It could also indirectly expose them to harm if they are sent to a country that does not have adequate refugee status determination procedures in place, and deports the person without properly ascertaining whether or not they need protection.  This is sometimes called ‘chain refoulement’ – because one country passes the asylum seeker on to another country, which in turn returns the asylum seeker to the place where they are in danger.  Under international law, any country involved in this chain is responsible for violating the principle of non-refoulement.

The principle of non-refoulement is considered to be such a fundamental humanitarian rule that it has attained the status of customary international law.  This means that even countries that have not signed up to the Refugee Convention or human rights treaties are obliged to respect it.  Of course, while the principle is not always respected in practice, it is significant that no country ever asserts that it has a right to return people to harm. Instead, they try to argue that the people they are removing are economic migrants (not refugees), or that they are being sent to a safe country.

The principle of non-refoulement is not discretionary; it is a legal obligation.  It is a reminder that all of us have the right to seek asylum, and the right not to be subjected to persecution, death, torture, or other cruel, inhuman or degrading treatment or punishment.  It is a means to finding safety, protection and dignity.