Revisiting the Rule of Non-Refoulement and its Exceptions: Does Article 33(2) of the 1951 Refugee Convention Require the Application of the Principle of Proportionality?

Abstract

The 1951 United Nations Refugee Convention relating to the Status of Refugees (hereinafter, the 1951 Refugee Convention) strictly forbids the expulsion of refugees to places where they may be exposed to threats to their life or freedom.1This prohibition, which is commonly known as the principle of non-refoulment, is the mainstay of international refugee protection. However, the 1951 Refugee Convention subjects the rule of non-refoulment to national security and public order exceptions. Article 33 (2) of the same allows State Parties to expel a refugee to persecutory places to safeguard their security or the safety of the community in which the refugee is staying. In this connection, there has been a persisting debate on whether the State of asylum is required to apply the test of proportionality before it sends a refugee to places where his/her life or freedom may be endangered. Many Scholars and several national courts maintain divergent views on the issue with still no consensus in sight. This paper surveys these divergent views and offers alternative and supplementary justifications in support of the assertion that any refoulment measure carried out in accordance with the 1951 Refugee Convention should be proportional in terms of it being as a measure of last resort, relevant to achieve the ultimate goal of protecting the security of the State of asylum and its effects on the life or freedom of the refugee. Accordingly, the paper first briefly highlights the essence of the principle of non-refoulment and its exceptions under article 33 (2) of the 1951 Refugee Convention from an historical perspective by analyzing the travaux preparatoires of the Convention. It then attempts to examine the current validity of the said exceptions in the light of the qualifying normative developments in other refugee law instruments, and other fields of international law, in particular, international human rights law. After having affirmed the enduring validity of such exceptions, the paper subsequently tackles the central issue, that is, whether States are obliged to apply the test of proportionality under article 33 (2) before expelling refugees to places where there is a risk of persecution. The paper finally discusses the role of the judiciary in ensuring proportionality in refoulment decisions.