Blog post written by Jenny Poon, a Research Affiliate of the Refugee Law Initiative, a Ph.D. candidate at the Faculty of Law of the University of Western Ontario, Canada, a qualified Barrister & Solicitor in the Province of Ontario, as well as a Visiting Study Fellow at the University of Oxford, Refugee Studies Centre for Trinity Term 2017. The author may be reached at jpoonlaw@gmail.com.

There are often scholarly debates surrounding the triggering and scope of application of the principle of non-refoulement. The debate centres around when the principle applies (i.e. when the individual has entered State territory or at the frontier of the territory) and whether it applies extraterritorially (i.e. when the individual is under the effective control and authority of the State but not within its territory). However, this debate misses a critical analysis of whether non-refoulement is merely a right of the State or whether it is also an individual right under international law. If it can be shown that non-refoulement is not only a right of the State, but also an individual right, it is argued that non-refoulement protection may be widened to protect more individuals who are vulnerable to being sent back to persecution, death or torture, or massive violations of human rights.

This blog post discusses the distinction between a right of a State and a right of the individual under international law. Non-refoulement has been traditionally defined as a principle of international law and has been described as the cornerstone of the international refugee law regime. This blog post posits that non-refoulement is both a right of the State and a right of the individual under international refugee and human rights law. First, non-refoulement is a principle that is legally-binding upon States and requires States to take both positive and negative obligations to comply with the principle. Second, treating non-refoulement as both a right of the State and a right of the individual under international law enhances the protection for asylum claimants and refugees who otherwise may be sent back to persecution, massive human rights violations or death and torture.

A right in the context of international law is assumed, for the purpose of this blog post, to be a freedom of an individual which is protected according to law. Non-refoulement under treaty law in the refugee context is found under Article 33(1) of the Convention Relating to the Status of Refugees (1951 Refugee Convention), which states that: “[n]o Contracting State shall expel or return (refouler) a refugee 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” [1]. Under treaty law, non-refoulement is a twofold duty: both a positive duty which requires the State to actively ensure the asylum claimant or refugee is not being sent back to a place where his or her life or freedom is threatened (an obligation upon the State to fulfill a duty), and a negative duty which requires the State not to refoule asylum claimants and refugees back to persecution (an obligation upon the State to respect a prohibition). Non-refoulement has also been defined under human rights treaties, which expands the scope of non-refoulement and widens its protection to all individuals regardless of legal status. In contrast with non-refoulement as merely a right of the State, non-refoulement is also a right of the individual. This poses a question: what is the legal status of individuals under international law, and can individuals be more than mere subjects of international law and therefore not at its mercy?

There is no general individual right under international law [2]. However, it can be and has been argued that individuals are not merely subjects and therefore at the mercy of international law but also has legal personalities which includes the legal capacity to have an individual right or duty [3]. The International Court of Justice has defined ‘international legal subjects’ to be synonymous with ‘international legal persons’ [4]. If the preposition that individuals are legal subjects under international law with the capacity to have an individual right is correct, it is suggested that international obligations such as non-refoulement may be reframed as a right of the individual rather than merely a right of the State. In other words, not only is non-refoulement an obligation that States must comply with, and which flows from the State to the individual (top-down), non-refoulement is also a right of the individual which may be claimed against the State (bottom-up). However, this is not suggesting that an individual may be a party before the International Court of Justice or have the capacity to conclude treaties [5].

Some have argued that refugee rights are not human rights, in that refugee rights are rights specifically for refugees (a specially-defined category of persons who have to meet a stringent test as defined under the 1951 Refugee Convention), but that human rights are rights available to all persons by virtue of the fact that they are human beings and without regard as to their legal status [6]. With this distinction, the broader scope of human rights law is supposed to cover the gap created by refugee law when the violation of rights against the individual does not reach the threshold of persecution. However, a protection gap for individuals experiencing a violation of right exists when that violation does not constitute persecution but at the same time does not reach the level of severity of torture or other cruel, inhuman or degrading treatment or punishment. This could occur, for instance, when a violation of right is a violation of a human right but that does not rise to the level of persecution and does not constitute torture. The return of refugees to these instances is permitted under the current regime according to the black letter law. Reframing non-refoulement as a right of an individual rather than merely a State right, therefore, may also reduce the protection gap since an individual with legal status under international law may claim the right against refoulement by a State.

While the traditional view of the 1951 Refugee Convention is that refugees are merely beneficiaries of the rights therein and that States are the primary duty bearers, this blog post argues that refugees are not only beneficiaries of such protection but also rights-bearers [7]. Furthermore, it is argued that, since rights exists regardless of whether or not States are compliant with their international law obligations, reframing non-refoulement as a right of an individual rather than merely a right of the State may assist in broadening the protection for asylum claimants and refugees. The Westphalian State-centric approach is arguably out-of-date given the current state of affairs in the world. The expression of international norms as rights for individuals rather than strictly State-centred obligations, emphasizes the power imbalance inherent in the relation between the State and the individual, and may encourage the enhancement of protection for these vulnerable groups. Now more than ever, the right against refoulement for asylum claimants and refugees must be protected.

References
[1] Convention Relating to the Status of Refugees 189 UNTS 137 (adopted 28 July 1951, entered into force 22 April 1954) at art 33(1).
[2] Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge: Cambridge University Press, 2016) at 35 [Peters].
[3] Ibid., at 36.
[4] International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174 at 179.
[5] See, for example: Christian Dominice, “The Emergence of the Individual in Public International Law” in The International Legal Order between Tradition and Innovation (Paris: PUF, 1997).
[6] Peters supra note 2 at 454; See also: Vincent Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law” in Ruth Rubio-Marin (eds) Human Rights and Immigration: Collected Courses of the Academy of European Law (Oxford: Oxford University Press, 2014).
[7] Guy S Goodwin-Gill, “Refugees and Their Human Rights”, Refugee Studies Centre (RSC) Working Paper No 17 (Oxford: University of Oxford, 2004) at 6-7.

Acknowledgements
Photograph: BBC Africa

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