1) 

    Principle of non-refoulment is found in different bodies of International Law

The principle of non-refoulment is most often referred to in the context of refugee security, given
its codification in Article 33 of the Convention Relating to the Status of Refugees (Refugee
Convention) and in territorial refugee law instruments.

Over the past decades, however, the principle has also been included in human rights treaties,
such as the Convention against Torment and Other Pitiless, Brutal or Debasing Treatment or
Punishment (Article 3), the International Convention for the Protection of All People from
Enforced Disappearance (Article 16) and in regional human rights instruments. Besides, the UN
Human Rights Committee has considered that non-refoulment is an indispensable component of
the protection against torment or other forms of cruel, brutal, or debasing treatment or
punishment, or arbitrary deprivation of life. Similar conclusions were drawn by the regional
human rights courts, in particular, the European Court of Human Rights (Soering v. The United
Kingdom,).
In 1949, the principle of non-refoulment was also included in the 1949 Geneva Conventions,
basically about detainee transfers, but also to protect the civilian population. At its core, the
guideline of non-refoulment is considered to form a part of Customary International Law. Under
Refugee Law, the rule of non-refoulment applies to both refugees and asylum seekers. In
addition to being protected against refoulement, refugees are entitled to some other rights
provided under that body of law. In contrast, protection against refoulement beneath Human
Rights Law implies an individual cannot be returned, but will not consequently mean that the
person must be granted refugee status and be afforded all of the rights that displaced people are
entitled to. In all circumstances, however, a State must respect, protect, and fulfill the human
rights of all people under its jurisdiction.

The main difference between the rule of non-refoulment under its different codifications is the
question of who falls under its protection and for what reasons. Refugee Law protects refugees
against the return to places of persecution, while under IHL it only applies to certain categories of
people that are affected by armed conflicts. Under Human Rights Law, the rule of non-refoulment
can protect any individual under a State’s jurisdiction, provided a pertinent danger exists in the
State to which the individual shall be transferred. Depending on the applicable human rights
treaties, the principle protects people against different dangers that may not be covered by other
bodies of law, such as a risk of the death penalty, cruel discipline, or child recruitment and
participation in hostilities, regardless of whether the danger to the individual is based on a
discriminatory ground or not. Refugee Law recognizes certain barely characterized exemptions to
the guideline of non-refoulment, the rule is outright under other bodies of law.

2)     Principle of non-refoulement is Applicable Whenever a Person falls within the

jurisdiction of a State
Under Refugee and Human Rights Law, it is understood that the rule of non-refoulment protects
people that are under the jurisdiction of a State. This is the case when an individual is within a
State’s territory, in its regional sea, or when the State exercises effective control over the person.
Under Refugee Law, there is an incredible back for the view that the guideline applies to rejection
at a State’s border. Moreover, in recent years human rights bodies and courts have been clear
that the rule also applies when States operate extraterritorially, including amid interception or
protection operations on the high seas.

There are, in fact, a few wrangles about when precisely an individual falls under the jurisdiction of
a State. Whereas it has been argued that in the setting of border closures or ‘pushback
operations’ the guideline of non-refoulement applies because the State aims ‘to exercise effective
control over the physical movement of migrants, even in the case only through the coordinate
anticipation of such development in a certain direction’, the traditional view is that a State needs
to exercise effective-meaning physical- control over an individual for Human Rights Law to apply.

3)     Principle of Non-Refoulement that can protect the persons fleeing armed conflict
The rule of non-refoulment applies regardless of whether an individual escapes from a nation
that enjoys peace or a nation involved in armed conflict: if there are considerable grounds for
believing that the person in question would be in danger of being subjected to violations of
certain fundamental rights, the individual cannot be returned. This would be the case, for
occurrence, for a leader of an opposition group who would in all likelihood be tormented or
summarily executed upon return.

While the guideline of non-refoulment is traditionally understood as protecting against an

individualized threat, it may also protect against more situational threats. As many clashes are
fought on religious, ethnic, or political grounds, UNHCR has convincingly contended that civilians
fleeing from armed conflicts often face persecution on one of these grounds and qualify as
refugees. Territorial instruments, legally binding for most African States and non-legally official in
Latin America and Asia, moreover recognize refugee status and protection for people fleeing
armed conflicts or other situations seriously disturbing public order. Some states have included
such broad definitions in their national laws.

Also, the European Court of Human Rights has found that the principle of non-refoulment
applies if a person isn’t individually targeted, but where the threat comes from ‘the most extreme
cases of general violence, where there’s a real risk of ill-treatment [or violations of the right to
live] simply by a person being exposed to such violence on return’ (i.e. N.A v. the United
Kingdom,).
4)     Principle of non-refoulment Protects against the Direct and Indirect Measures that
Force a Person to Leave
The guideline of non-refoulment prohibits not only the direct forcible return of people in the
above-described situations but moreover indirect measures that have the same effect.

It is, for the most part, agreed that the rule protects people from being transferred to a State
which may not itself threaten the person, but which would not effectively protect the individual
against onward exchange in violation of the principle of non-refoulment (called indirect, chain or
secondary refoulement).

Jurisprudence and expert suppositions also support the view that the guideline of non-
refoulment prohibits States, not only from directly transferring a person to a pit of danger (return
decision upheld by the State) but from taking certainly masked or circuitous measures that make
circumstances leaving an individual with no genuine alternative other than returning to a place of
danger. A few dispute that this is a legal denial. There’s also, admittedly, a need for clarifying the
scope of such a norm.

In any case, it is or may be compelling that if a State cannot legally return a person, the guideline
of non-refoulment ought to also be understood as prohibiting indirect measures designed to
circumvent this prohibition.

5)     Principle of non-refoulment Requires the Procedural Safeguards

To guarantee that an individual is not returned to a put where he or she would be in danger of
certain fundamental rights violations, basic procedural safeguards are required. Under
International and Territorial Human Rights Law, people with an arguable claim that they would be
returned in violation of the non-refoulment principle have the right to an effective cure. This
would at the least require that the person needs to be informed of the transferor’s return
decision in a timely way and be able to challenge the decision before a free and impartial body.
Given the seriousness of the danger at stake, returns must be suspended pending a choice.
Importantly, these safeguards need to be in all cases, including where a State indicates to return
individuals to an allegedly safe nation or has obtained diplomatic assurances for the treatment of
the person.

The notes on the rule of non-refoulment released back in 1977 by UNHCR, can be taken as the
comprehensive direction to the issue at the current time.