top of page
  • Aditya Gopikrishnan

Legality Of Border Closures In Light Of The Principle Of Non-Refoulement

This article is authored by Aditya Gopikrishnan, a third-year student at the National Law University, Jodhpur.


Amidst the escalating situation involving the forcible removal of Afghan citizens by Pakistan, nations globally shifted their focus from international refugee obligations to safeguarding their citizens and national interests. The enforcement of border closures became a widespread practice, transcending the initial context of the COVID-19 pandemic. While various sectors returned to normalcy, the strategic use of border closures persisted as a means for states to assert control over their sovereign territories. States such as Pakistan, Israel and Egypt have closed their borders, leading to the suffering of hundreds. This academic endeavour aims to assess the legality of border closures against asylum-seekers as a response to alleged security threats. This is in anticipation of border closures in light of conflicts originating in Afghanistan, as well as those resulting from the Israel-Palestine crisis.


Keywords: Israel, Palestine, border closures, refugee, non-refoulement, international humanitarian law


In the face of heightened tensions and the forced displacement of Afghan and Palestinian citizens, numerous nations, including Pakistan, Israel, Egypt and Jordan, have implemented stringent border closures, with some going as far as to expel all refugees of a particular nationality from within their borders. These measures are particularly troubling, as they represent a blatant violation of international humanitarian obligations, and show a shift towards prioritising national self-interest against human lives. As border closures persist as a tool for asserting control within sovereign territories, this article seeks to examine the validity of such measures against the principle of non-refoulement.

The principle of non-refoulement is one of the cornerstones of international humanitarian law. In essence, the principle prohibits States from expelling or returning a refugee to a region where their life or freedom is likely to be in danger due to their race, religion, nationality, membership of a particular social group, or political opinion. The most widely known expression of non-refoulement is available in the Convention Relating to the Status of Refugees, wherein the obligation is to not “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.

This is, however, subject to the exception that such protection cannot be claimed by a refugee, for whom there are reasonable grounds to believe that they would be a danger to the security of the country that they are in, or a refugee who has been convicted by a final judgement of a “particularly serious” crime.[i] The latter exclusion criteria is an interesting deviation from the manner in which the Refugee Convention treats convictions in general, as the exclusion criteria for attaining refugee status is the commission of a serious non-political crime.[ii] Such a criteria was set so as to provide refuge to those that were fleeing political persecution, which is seen through “political opinion” being a qualifying criteria for a refugee.[iii] However, in the context of non-refoulement, this does not appear to be a consideration, due to the omission of the phrase “non-political”.

Aside from the Refugee Convention, non-refoulement also finds a place in the Principles Concerning Treatment of Refugees, which was adopted by the African Legal Consultative Committee. Herein, it is stated that:

No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion.[iv]

The exception to this is functionally identical to the exception to non-refoulement established in the Refugee Convention.

Similar provisions can be found in the Declaration on Territorial Asylum, the 9 Organization of Africa Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, and other international instruments.[v]


Derogations from Non-refoulement

Despite the widespread nature of the principle, States may attempt to derogate from this principle due to a variety of fears. Recently, Pakistan ordered all Afghan asylum-seekers to leave the country by November, 2023. The ostensible reason for such an order is the recent increase in tensions between the two countries. A measure following this could be a closure of borders towards all asylum-seekers arriving from Afghanistan. This is evidenced by a measure taken shortly prior to that, when Pakistan closed the Torkham border crossing, while accusing the Taliban of building unlawful structures, along with indiscriminate and unprovoked firing. Since the expiry of this deadline, police officials have begun detaining “illegal” refugees at detention centres, where they are deprived of all procedural safeguards and most human rights protections. Palestinians face similar hurdles at the Egyptian border at Gaza.

Such measures were also taken during the COVID-19 pandemic, which prompted many States to close their borders to refugees in an attempt to prevent the spread of the virus within their borders. According to the United Nations High Commissioner for Refugees, 167 countries had “fully or partially closed their borders to contain the spread of the virus.” For instance, the American Centre for Disease Control and Prevention announced on 20th March, 2020, that they would be suspending asylum processing for people travelling from Canada or Mexico. Similar decisions were made in Belgium, as well as Greece.

Derogations from non-refoulement may be justified by States on 3 grounds. They may contend that:

  1. The principle of non-refoulement does not apply to them.

  2. They are allowed to refoul the asylum-seekers despite the obligation.

  3. Their actions are precluded from wrongfulness under Chapter V of the Articles on the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”).

The following sections shall deal with the viability of each of these contentions.


Applicability of Non-refoulement

Some States, specifically those that are not parties to the multitude of international instruments that mandate the obligation of non-refoulement, may contend that the principle of non-refoulement does not bind them. For instance, the Indian Supreme Court rejected a petition relating to Rohingya refugees, as it was believed that the Refugee Convention did not bind non-signatories such as India. The States that could make this claim constitute a very small group in themselves, as the instruments that contain the principle of non-refoulement enjoy a high number of signatories. For instance, the Refugee Convention and its 1967 Protocol have 149 State parties, with the former having 145 signatories. Similarly, the International Convention on Civil and Political Rights has 173 State parties and 74 signatories.

Even if a State does not find themselves bound by the obligations under the aforementioned treaties, and similar instruments, a response to their contention could be that non-refoulement has been widely accepted as a norm of customary international law.[vi] The basis for this reasoning is that it is a general rule of law, found in several binding, and non-binding instruments. While there are some differences in the manner in which the principle is expressed, it has been stated that the inclusion of identical or similar provision can create a binding custom.[vii] The widespread participation of States in treaties that provide for non-refoulement reflects State practice, as well as opinio juris.

Due to the fulfilment of the two characteristics of a norm of customary international law, and its widespread acceptance as such, States are bound by the principle of non-refoulement, in the absence of the applicability of the persistent objector rule. Thus, the contention that a State is not bound by the principle of non-refoulement does not hold water.


Border Closures and the Principle of Non-refoulement

Contentions could be made with regard to the content of the principle by claiming that border closures do not violate the principle, as it only applies to those asylum-seekers that are within the territory of the receiving State. However, this contention would be unfounded in law as the obligation of non-refoulement as a custom includes admittance at State borders.[viii] As noted by Sir Elihu Lauterpacht, and Paul Weis,[ix] the French text of the Refugee Convention (which, according to the Refugee Convention itself, is as authentic as the English text), uses the word “refoulement”, which, in its vernacular usage, covers rejection at the border. Similarly, the Executive Committee of the High Commissioner’s Programme noted the “fundamental importance of the principle of non-refoulement – both at the border and within the territory of the State.” Therefore, even those asylum-seekers that are turned back at the borders of a State are protected by the principle of non-refoulement.

An alternative contention could be a defence on the grounds of national security. However, this is a farcical argument, as the provisional measures that a State may take under the Refugee Convention continues to require an individual assessment of asylum-seekers.[x] The drafters considered, and subsequently rejected, an absolute power of derogation in times of crisis.[xi] The requirement of individual assessment also exists in the context of the exception to the principle of non-refoulement. A blanket closure of borders would be a violation of the procedural guarantee of individual assessment. Consequently, a border closure cannot be justified on the grounds of national security either.


Border Closures Under the ARSIWA

Chapter V of the ARSIWA enumerates the circumstances that preclude wrongfulness, if an international obligation has been violated. Articles 20-25 of the ARISWA deal with various such circumstances, of which Articles 23, 24 and 25 are relevant. These deal with force majeure, distress, and necessity respectively.

Article 23 precludes wrongfulness if the act is due to “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Here, it is the material impossibility of following the principle of non-refoulement that must be considered. Crises of economic or political natures do not constitute material impossibility. In the context of alleged security risks (as is the contention from Pakistan against Afghan asylum-seekers, and Egypt against Palestinian asylum-seekers), the possibility of a risk does not make it materially impossible for them to conduct individual assessment for asylum-seekers. States have instituted Reception Centres, such as those in Armenia, which provide temporary accommodation for asylum-seekers. These could be staffed with additional security in order to ensure security while the asylum applications are processed. There could be a plethora of other measures taken to ensure security while not violating the principle of non-refoulement. Clearly, there is no “material impossibility” in such situations.

Article 24 precludes the wrongfulness of acts if “the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”. The applicability of this provision can also be rejected outright, as there are clearly other reasonable ways of balancing national security and the principle of non-refoulement. Furthermore, Article 24(1) does not apply if the act in question is likely to create a comparable or greater peril.[xii] To contextualise the numbers here, the attack on the World Trade Centre on September 11th, 2001, is widely acknowledged as the deadliest terrorist attack in human history. It claimed 3,000 lives. In contrast, 1.7 million Afghan asylum-seekers are being expelled from Pakistan by the end of November, and thousands of Palestinians are currently suffering at the Egyptian border. To exclude the application of Article 24(2), Pakistan would have to show that the security threat posed by the Afghan asylum-seekers is 566 times greater than the death toll of the 9/11 attacks. Similarly, the burden upon Egypt in case of such a defence would also be staggeringly high. While an empirical analysis could support such conclusions, the author believes that this is almost impossible.

Article 25 requires that the act that is violating an international obligation must be “the only way for the State to safeguard an essential interest against a grave and imminent peril” and should not “seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.” The plea of necessity is of an exceptional character, as connoted by its phrasing in the negative.[xiii] The “peril” in question must be of a definitive nature, objectively established, and not merely apprehended. The State that claims the exception is not the sole judge of whether the conditions of necessity have been met. In the situations being considered herein, the border closures are a result of a possibility of a security threat. It has, by no means, been objectively established. It has also only been considered by Egypt and Pakistan, without the input of any other entities. As a result, Article 25 also cannot be used to preclude wrongfulness for border closures for asylum-seekers.


Conclusion

States may attempt to dodge their obligation to provide refuge, or at the very least, temporary protection from persecution, by citing reasons of national security. This goes against the basic right to seek asylum under Article 14 of the Universal Declaration of Human Rights. States cannot and should not close their borders and reject their obligation to effectuate this right by claiming threats to national security, and sending back asylum-seekers without fulfilling their procedural obligation to individually consider their applications.

An evaluation of the possible defences shows that States cannot avoid such an obligation by contending that the obligation does not extend to them. Furthermore, they cannot avail exceptions to the obligation, as border closures do not meet the requirement of individual assessment to apply such an exception. Lastly, an examination of ARSIWA reveals that the circumstances that preclude wrongfulness also do not apply to border closures.

As a result, it must be concluded that border closures are an illegal measure, when used against asylum-seekers. Any future usage of the measure would be entirely unfounded in law. Such an analysis is particularly crucial in times as tumultuous as these, given the emergence of conflicts with international ramifications in areas such as Ukraine, Afghanistan, and most recently, Palestine.


Endnotes

[i] Convention Relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 137 (hereinafter Refugee

Convention), art. 33(2).

[ii] Refugee Convention, art. 1(F)(b).

[iii] Refugee Convention, art. 1(A)(2).

[iv] Asian-African Legal Consultative Organization, Bangkok Principles on the Status and Treatment of Refugees,

Dec. 31, 1966, art. III (1).

[v] Cartagena Declaration on Refugees, embodying the Conclusions of the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama held in Cartagena, Nov. 22, 1984, §3(5); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, art. 3; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, art. 3.

[vi] United Nations High Commissioner for Refugees, General, No. 25 (XXXIII) (1982); UN docs. A/AC.96/694 ¶21.; A/AC.96/660 ¶17; A/AC.96/643 ¶15; A/AC.96/609/Rev.1 ¶5.

[vii] Special Rapporteur M. Wood, Third Report on Identification of Customary International Law, ¶29, UN Doc. A/CN.4/682 (Mar. 27, 2015); Van der Wilt, Harmen & Heijer, Maarten den, Netherlands Yearbook of International Law 2015, The Hague: T.M.C. Asser Press, 284; Goodwin-Gill G. S., The Refugee in International Law (2nd ed, Oxford University Press, 1996) 134-137.

[viii] Lauterpacht, E., Bethlehem, D., The Scope and Content of the Principle of Non-Refoulement, in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (ed. Feller, Türk, Nicholson) Cambridge University Press (Jun. 2003) 149-150.

[ix] Paul Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed, with a Commentary, United Nations High Commissioner for Refugees, 1990, p. 342.

[x] Refugee Convention, art. 9; Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation, p. 95 (1953).

[xi] James C. Hathaway, the Rights of Refugees Under International Law, p. 292 (2010).

[xii] Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 25, November 2001, Supp.

No. 10 (A/56/10), art. 24(2).

[xiii] James Crawford, State Responsibility: The General Part, p. 306.

77 views0 comments

Commentaires


bottom of page