Principle Of Non-refoulement Research Articles

The Principle of Non-Refoulement under the echr and the un Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, written by Eman Hamdan Frontex and Non-Refoulement. The International Responsibility of the eu, written by Roberta Mungianu

The Principle of Non-Refoulement under the echr and the un Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, written by Eman Hamdan Frontex and Non-Refoulement. The International Responsibility of the eu, written by Roberta Mungianu

Exclusion Clauses of the Refugee Convention in Relation to National Immigration Legislations, European Policy and Human Rights Instruments: Article 1F versus the Non-Refoulement Principle

Exclusion Clauses of the Refugee Convention in Relation to National Immigration Legislations, European Policy and Human Rights Instruments: Article 1F versus the Non-Refoulement Principle

Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context

AbstractThe principle ofnon-refoulementfound in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of thenon-refoulementobligation. However, in Europe, this has begun to change. Thenon-refoulementobligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle ofnon-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework.

Foreigners: Wanted Dead or Alive?

While non-refoulement is an absolute principle of international human rights law, its application to seriously ill individuals exposed to premature death and physical and mental suffering because of the substandard medical system in their country of origin seems to have followed a double standard in Europe. On the one hand, medical cases are increasingly treated at the margin of the non-refoulement principle by the European Court of Human Rights, being only covered in highly exceptional cases. On the other hand, seriously ill individuals have been excluded from the scope of subsidiary protection in the European Union as confirmed by the Court of Justice of the European Union. Against such restrictive interpretations, the present article calls for an integrated approach where all non-refoulement claims, including those on medical grounds, are to be assessed along the same criteria so as to ensure seriously ill individuals a genuine right to live in dignity.

Seeking Refuge in EU Delegations Abroad: A Legal Imbroglio Explored

A diplomatic mission abroad can assist an individual in (temporarily) escaping a host State’s jurisdiction within the latter’s territory, especially when this individual has a well-founded fear for the violation of his fundamental rights. In such cases, EU Member States have occasionally opened the doors of their diplomatic premises for urgent humanitarian reasons. This working paper investigates which legal framework would apply if one of the Delegations of the European Union’s worldwide diplomatic network were to offer shelter. It explores whether the EU – as an actor in international law and being founded on the values of respect for human dignity and human rights − may be legally obliged to uphold an extraterritorial non-refoulement principle in a diplomatic context. Finally, the paper studies delicate issues such as offering protection through diplomatic means, cooperation modes set up with EU Member States, and the processing of individual cases.

VULNERABILITY AND THE PRINCIPLE OF NON-REFOULEMENT IN THE EUROPEAN COURT OF HUMAN RIGHTS: TOWARDS AN INCREASED SCOPE OF PROTECTION FOR PERSONS FLEEING FROM EXTREME POVERTY?

“Economic refugees” largely remain outside the international protection regimes of refugee and human rights law. Nevertheless, recent case law of the European Court of Human Rights (ECtHR) opens up limited possibilities for economic refugees to rely on Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment. The present paper asks: can, and if so, under what circumstances does, the deportation to situations of economic, social and cultural rights (ESCR) violations caused by conditions of extreme poverty form a violation of the non-refoulement principle? The present study conducts a doctrinal legal analysis of the most remarkable cases of the ECtHR in that respect. The delimitation and use of the concepts of exceptional circumstances and vulnerability are especially intriguing in this regard and are the main focus of this paper. Most ground-breaking was the case of MSS v Belgium and Greece in which the ECtHR recognized the living conditions of “most extreme poverty” of the applicant in Greece as falling within the scope of Article 3 ECHR. With the subsequent cases of Sufi and Elmi v UK, SHH v UK and Tarakhel v Switzerland, the innovative character of MSS v Belgium and Greece has been challenged, redefined and put into perspective. It can be concluded that the ECtHR has increasingly recognized vulnerability as a relevant criterion to be applied in addition to, or possibly even as a substitute for, the previously applied exceptional circumstances standard. The burden of proof for vulnerability seems to be lower than for the exceptional circumstances threshold and more attention seems to be paid to the general environment and situation in the country of origin rather than only to the individual circumstances of the applicant.

The Principle of Non-Refoulement in Light of Subsidiary Protection: A Review of the Prohibition on Refoulement and its Related Jurisprudence

The principle of non-refoulement is the backbone of international refugee law. This principle paved the way for a jurisprudence which transformed the asylum policy in many states. The most notable developments appeared within the legal regimes under the European Convention on Human Rights and the European Union. Within the present study, a discussion will be offered concerning the issue of subsidiary protection within the European Union, in light of the principle of non-refoulement. A review will be offered on the decisions of the European Court of Human Rights concerning Article 3 of the Convention, which had a tremendous impact upon both the Union's legislation and its interpretation by the European Court of Justice.

Violations to the Principle of Non-Refoulement Under the Asylum Policy of the United States

This paper provides a critical analysis of the ongoing asylum policy of the United States, as the largest receptor of asylum claims in the industrialized world, to explain how it violates the principle of Non- Refoulement established in Article 33 of the 1951 Convention of Relating to the Status of Refugees and the1967 Protocol relating to the Status of Refugees. The study will focus on the context of the treatment the United States gives to asylum seekers who arrive by sea or other means, expedited removal proceedings, the anti-terrorism measures as exception to the Principle of Non-Refoulement, and the restrictive interpretation of the Refugee concept.

Transfers of Piracy Suspects - A Crucial Element of the Regional Prosecution Strategy in Light of Human Rights Law

Patrolling naval States only exceptionally prosecute piracy suspects they took captive in their domestic courts. The majority of suspects are instead put on trial in third States, mainly located in the region prone to piracy. Transfers are the prevalent means by which to put alleged pirates in the hands of the ultimately prosecuting State and thus to implement this regional prosecution strategy. This article explores - from a human rights perspective - the legality of transfers of piracy suspects as such and, in greater detail, the legality of the transfer procedure currently being pursued in counter-piracy operations off the coast of Somalia and the region. The conclusion is that human rights law does not offer an absolute right not to be transferred for prosecution, but that the principle of non-refoulement can bar the transfer of a specific suspect to a specific destination. It is further asserted that the current transfer procedure is not necessarily in line with the procedural requirements flowing from the principle of non-refoulement. Lastly, it discusses how respect for these procedural prescripts can be reconciled with the operational constraints and specificities of counter-piracy operations, most notably that piracy suspects are often detained on board law enforcement vessels and never enter the land territory of the transferring State.

THE SHALABAYEVA CASE: ISSUES OF INTERNATIONAL AND EU LAW

The article discusses some issues of international and European Union (EU) law raised by the expulsion from Italy, and repatriation to Kazakhstan, of Alma Shalabayeva and her daughter, a minor. The expulsion has been described as constituting an act of “extraordinary rendition” by three UN Special Rapporteurs and is said to have manifestly violated the rights of the interested individuals to receive asylum, or other international protection, as well as the principle of non-refoulement. Italy’s conduct has also been castigated from an EU law perspective, notably for alleged violations of the Schengen acquis and of the EU’s Returns Directive. The author assesses these allegations in the light of the documentation currently available and of the Italian legal framework on migration, arguing that some of the accusations against Italy were proffered without thorough and objective analysis of the factual and legal background. As to the alleged violation of the non-refoulement principle, a diversified picture emerges, with regard to expulsions to Kazakhstan, both from European Court of Human Rights (ECtHR) case law and from recent decisions of national courts on similar cases. Besides, it is not clear whether the failure to consider some crucial elements, in the course of the repatriation procedure, resulted from wilful or negligent conduct on the part of the Italian authorities, or from the reluctance of the individual concerned to produce certain information. At the same time, the author points out that the expulsion procedure carried out in respect of Shalabayeva and her daughter raises a number of legal questions, notably as to the respect of some obligations stemming from Italian immigration law and from the EU Returns Directive.

The Principle ofNon-RefoulementAnd the De-Territorialization of Border Control at Sea

AbstractDestination states of irregular migration aim to prevent arrivals by controlling their borders outside their territory, specifically on the high seas. This practice may best be described as the de-territorialization of border control at sea. The de-territorialization impacts the applicable legal framework, in particular the safeguards to which individuals submitted to the control activities are entitled. This article posits that the principle ofnon-refoulementis a fundamental yardstick for the de-territorialization of border control and applies wherever competent state authorities perform border control measures. The argument develops in four steps. After outlining the content of the principle ofnon-refoulement, this article defines maritime borders and elucidates their functional nature. It then outlines how the principle ofnon-refoulementapplies at sea and translates into a ‘principle of non-rejection at the maritime frontier’. The article finally highlights the principle's legal and practical consequences in the context of de-territorialized border control.

The Status of Citizens and Migrants in Light of the Non‑Discrimination Principle

Migration is connected to a large number of civil and political rights like, e.g., the non-refoulement principle, the respect for private and family life, a fair trial and personal liberty, human dignity and freedom of opinion, as well as social rights like, e.g., the right to just conditions of work, the right to fair remuneration, the right to social security and the right to health care. In the international human rights doctrine there is little doubt about the close link between international protection of human rights and the regulation of migration. Also the jurisprudence of international and national courts has clearly demonstrated that migration is one of the most complex human rights issues of our time.

The British-Jewish Roots of Non-Refoulement and its True Meaning for the Drafters of the 1951 Refugee Convention

This article examines the underlying intentions that guided the authors of Article 33, better known as the non-refoulement principle, of the 1951 Refugee Convention, from February 1950 until the signing of the Final Act in July 1951. I begin by explaining the diplomatic context within which the non-refoulement principle was inscribed into the text of the Convention, following the schism between the two opposing groups of member states present at the drafting table. Based on unpublished material from Israeli and UK archives, I then study four specific aspects of the drafting of the non-refoulement article. The first issue concerns the geographical scope of non-refoulement regarding refugees on the high seas. The second concerns the addition to non-refoulement in the first paragraph of Article 33 of the category of ‘a particular social group or political opinion’, in direct contemporary reference to political refugees from the Soviet bloc. The third issue studied here is the development of the text of paragraph 2 of Article 33, one of the major conditions restricting protective measures for refugees. This study uncovers how this paragraph was drafted, where it was initially intended to fit within the Convention text, and how it eventually became a qualifying condition for Article 33. Fourthly, this article considers the embedded meaning of the term ‘national security’ as it was inserted into Article 33 by the UK representatives who drafted it.

A Comparative Legal Approach to the Protection of Refugees and Asylum Seekers in the European Union: With a Focus on the Principle of Non-Refoulement

The legal argument of the paper will be built around a comparative method, pointing towards the disparities and similarities between international refugee law (including the United Nations and the Council of Europe legal framework) and European asylum law. The final goal is to see how European asylum law has been shaped and defined as a compromise between the conflicting views of Member States, but also in reference to international norms. The literature used to support this method consists of doctrine, jurisprudence and other legal instruments, such as the applicable conventions, treaties, directives, regulations, etc.

Human rights challenged by European policy responses to irregular migration

Irregular migration has become a particular challenge for the European Union (EU) in the 21st century since thousands of people cross borders without legal permits and thereby undercut the sovereign state. Yet, many of these migrants are legitimate asylum-seekers with international and EU law legalising their irregular border-crossing. This article argues that international and EU human rights and refugee law have only a limited impact on the state’s sovereign immigration and asylum policies at the cost of individuals’ human rights. At the example of the case study countries Italy and Malta, the lawfulness of two common policy responses – namely return and detention – is analysed on the basis of European and international law. The challenged human rights are freedom from torture and inhuman or degrading treatment extending to an effective right to seek asylum and the non-refoulement principle in refugee law.

Non-access to water as human right violation? International protection and the application of the non-refoulement principle under the human rights legal instruments

The importance of water for the human life has been legally and officially recognised through its recent recognition as a human right. Non-access to water has led people to flee from their home countries seeking international protection. The main question to be answered is whether water deprivation or prohibition to access to water by state or non-state actors could amount to human right violation or even to torture and inhuman treatment. If this is the case could water deprivation as such be actually considered as a valid ground for refugee or subsidiary protection? For this purpose, the methods of protection under international and European refugee law instruments will be assessed.

Recognition of the Rights of the Victims of Climate Change under Public International Law: A Study

In recent years, climate change is emerging as a major
 environmental disaster. The impact of such disasters has
 been the rise in global temperature and flooding of coastal
 zone communities, frequent droughts and disruptions in
 rainfall pattern. This has resulted in the increase in the
 number of environmental refugees. Climate change
 disasters constitute a major reason for displacement of
 population than war and persecution. Climate induced
 migration is a highly complex issue. The status of climate
 refugees is not recognized in the international framework.
 The non recognition of these victims in international and
 national legislations has not only deprived them of their
 basic human rights but has also raised crucial questions
 relating to their existence and identity. This paper tries to
 bring out the lacunae in the present policy and legal
 framework relating to environmental refugees with
 reference to the non-refoulement principle. Further, the
 paper emphasizes on the need to include climate refugees
 under the term „refugee‟ as laid down in the United
 Nations Convention relating to the Status of Refugees,
 1951and provides suggestions for improving the
 condition and protection of this hitherto neglected
 population.

Non Refoulement Principle and Its Relevance in the International Law System

The principle of Non-Refoulement is a concept that is very well known in the framework of international protection applicable to refugees and or asylum seekers. Non Refoulement is a concept in which State shall not expel or return (refouler) a refugee or asylum seeker in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The principle of Non Refoulement is generally relevant to the protection of human rights, especiaally in relation with the freedom of torture or cruel, inhuman or degrading treatment or punishment. In the context of international refugee law, the principle of Non Refoulement is a fundamental concept and considered as the back-bone of the whole frameworks of international protection for refugee and asylum seeker. This article discussed three aspects relevant to the principle of Non Refoulement, namely : the existence of such a principle in the existing international legal system, the character of the principle of Non Refoulement as Jus Cogens, and the condition of which the benefit of such a principle may not be applied . It is obvious that the principle of Non- Refoulement has been accepted by international community as explicitly established in international legal instruments and consistently implemented in the practice of State and the relevant international organisations. Such a principle is accepted by international community and gained ground as Jus Cogens in the international legal system, consequently States individually or collectively shall not derogate in a manner whatsoever , otherwise it is modified by a subsequent norm of general international law having the same character. However, should there are reasonable grounds, the benefit of the present principle may not be granted to a refugee.

Migrants in the Mediterranean: Do's and Don’ts in Maritime Interdiction

Mediterranean European Union member states have to deal with thousands of migrants arriving by sea every year. Frontex (the EU external borders agency) organizes joint surveillance operations at sea to interdict these migrant boats, helping states to cope with the problem. This article discusses the legality of these maritime interdictions done by Frontex according to the international law of the sea as well as the conformity of the operations with the nonrefoulement principle.

EU Asylum Law and Human Rights Protection: Revisiting the Principle of Non-refoulement and the Prohibition of Torture and Other Forms of Ill-treatment

Abstract The principal objective of the article is to examine the EU legal framework and international law parameters of legal harmonisation processes in a specific field of human rights protection: asylum legislation. In particular, it is to provide an in-depth analysis of the compatibility of EU asylum legislation with existing international norms in relation to the principle of non-refoulement and the prohibition of torture and other forms of ill-treatment. It also aims at exploring the correspondence and controversies of relevant legal principles and norms under international law. Similarly, it attempts to provide an analysis of the incomplete and inefficient implementation of these international norms and principles by EU asylum law as well.