Informing Non-Refoulement Obligations with Responsibility to Protect

 In Op-Ed

By Jenny Poon1Barrister & Solicitor (Ontario, Canada) and Ph.D. Candidate at the Faculty of Law of the University of Western Ontario. The author may be reached at jpoonlaw@gmail.com.

In addressing the United Nations General Assembly plenary meeting on Syria on October 20, 2016, Canadian Prime Minister Justin Trudeau stated “I encourage other countries to help generate forward momentum on Syria, given UN members have a collective responsibility to protect [R2P] the world’s vulnerable and weak when others cannot or will not”.2Canadian Centre for the Responsibility to Protect, Media Release, “Prime Minister Justin Trudeau calls upon the international community to exercise our collective Responsibility to Protect in Syria” (20 October 2016). The R2P principle, coined in 2001 by the Canadian government and subsequently adopted by 150 heads of states and governments in 2005, is a principle which calls upon United Nations member states to act as a collective and assist States when a State is unwilling or unable to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity.3Ibid.

It is argued that the R2P principle may inform the international refugee law principle of nonrefoulement to establish state responsibility in preventing asylum claimants or refugees from being sent back to face persecution or mass atrocities. The principle of non-refoulement states that the asylum claimant or refugee has a right not to be sent back to his or her country of origin to face persecution.4Convention Relating to the Status of Refugees 28 July 1951, 189 UNTS 137 at art 33(1) (entered into force 22 April 1954). In the human rights context, the principle is violated when a State sends back the asylum claimant or refugee to torture or other cruel, inhuman, degrading treatment or punishment.5Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 10 December 1984, 1465 UNTS 85 at art 3 (entered into force 26 June 1987). Nonrefoulement is a central tenet in refugee law, which binds all States regardless of whether they are contracting parties to the 1951 Convention Relating to the Status of Refugees (Refugee Convention).6United Nations High Commissioner for Refugees “UNHCR Note on Diplomatic Assurances and International Refugee Protection” (August 2006). In reality, however, the principle is difficult to enforce, given the discretionary nature of State interpretation and implementation of the principle into domestic law. Where States do not adhere to the principle of nonrefoulement, it is argued that the international community also has a duty to assist a State in complying with the principle.7For instance, the principle of non-refoulement is part of customary international law, meaning that States are bound by this norm regardless of whether or not they are State parties to the Refugee Convention. Further, the principle of non-refoulement has been widely regarded as a jus cogens norm, which is a peremptory norm where no derogation is permitted. Finally, it may be necessary, in the most extreme of cases, for the international community to “step in” to intervene when a State is unwilling or unable to protect asylum claimants or refugees from refoulement.

For the purpose of this article, the definition of R2P will be taken from the most recent rendition of the R2P doctrine, which is taken from the 2009 United Nations Secretary-General report on Implementing the Responsibility to Protect (IRP) due to its currency.8United Nations Secretary General, Report on Implementing the Responsibility to Protect, UNGA, 63rd Sess, UN Doc A/63/677 (2009) [IRP]. According to the IRP, R2P is defined as “‘the responsibility [of each individual State to] protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ [and that] the international community should assist States in exercising that responsibility”.9Ibid at summary. The R2P principle gives insight into how a State’s obligation to prevent refoulement of asylum claimants or refugees is synonymous to a State’s responsibility to protect its populations from “genocide, war crimes, ethnic cleansing, and crime against humanity.”10Ibid at para 1. One formulation of the definitions of these crimes is found under the Rome Statute of the International Criminal Court.11Rome Statute of the International Criminal Court 17 July 1998, at arts 6-8 (entered into force 1 July 2002). The R2P principle rests on three pillars. Pillar One suggests that States have a responsibility to protect their populations regardless of the nationality of the individual, from genocide, war crimes, ethnic cleansing, and crimes against humanity.12IRP supra note 8 at 8. Pillar Two suggests that the international community should assist States in meeting Pillar One obligations.13Ibid at 9. Pillar Three suggests that United Nations member states have the collective responsibility to respond in a timely and decisive manner when a State fails to provide Pillar One protection to their populations.14Ibid.

Pillar One: State sovereignty entails state responsibility

The R2P principle suggests that a State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity.15Ibid. Likewise, State sovereignty entails the responsibility to protect asylum claimants and refugees from being refouled back to their country of origin to face mass atrocities. It is in the interests of a State not to refoule asylum claimants or refugees back to face mass atrocities. Not refouling asylum claimants or refuges back to face mass atrocities encourages other States to follow and strengthen their compliance with the principle of nonrefoulement through widespread and uniform state practice. States that refoule asylum claimants or refugees back to face mass atrocities not only violate the principle of nonrefoulement but may also be seen as having a poor human rights record.

Pillar Two: International community has a duty to assist States

The R2P principle states that the international community has a duty to assist when States are unwilling or unable to protect their populations from mass atrocities. Similarly, there is a duty amongst the international community to assist States in adhering to their nonrefoulement obligations. Assisting States in their compliance with the principle of nonrefoulement encourages overall compliance with the principle and strengthens the legitimacy of the States complying with the principle. In complying with international principles supported by the international community, States will strengthen their own legitimacy on the international stage, especially in adhering to the principle of nonrefoulement. The validity of nonrefoulement as a principle of customary international law through widespread and uniform state practice and opinio juris is enhanced when States assist other States in complying with the principle.16Opinio juris is the subjective belief of States that they are bound by a legal norm. For more on customary international law, see: North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3 at para 74.

Pillar Three: International community has a duty to intervene where necessary

The international community has a collective duty to take timely and decisive action to assist States that are unwilling or unable to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. It is argued that, in the same way, the international community has a collective interest in protecting asylum claimants and refugees from being refouled back to their country of origin to face mass atrocities. The Charter of the United Nations Articles 1 and 2 set out the principles and purposes of the United Nations, placing particular importance on the maintenance of international peace and security.17Charter of the United Nations, 20 December 1971, 1 UNTS XVI at arts 1-2 (entered into force 24 September 1973). The United Nations member states also has the duty to protect the rights of individuals before the international community, especially the vulnerable and those without recognizable status before domestic legal regimes. The international community should act as a collective to offer protection and safeguard the rights of asylum claimants and refugees, especially in States’ adherence to nonrefoulement obligations. The international community should take positive action to prevent the refoulement of asylum claimants or refugees to face mass atrocities.

Conclusion

The R2P doctrine should be extended to protect asylum claimants and refugees from refoulement since State sovereignty must also entail State responsibility. The international community also has a duty to assist and intervene in the most extreme of cases, when a State is found to be unwilling or unable to offer protection to its vulnerable populations.

About the Author

Jenny Poon Headshot B&W

Jenny Poon is a Barrister & Solicitor in Ontario, Canada, and a Ph.D. Candidate at the Faculty of Law of the University of Western Ontario, Canada. Her research involves an examination of the Dublin Rules as an asylum transfer process tool in the EU and a comparative evaluation of the principle of non-refoulement. Her research interests include international refugee law, international human rights law, as well as European Union asylum law. Her most recent publication is entitled ‘EU-Turkey Deal: Violation of, or Consistency with, International Law?’, published on the European Papers, A Journal on Law and Integration.

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