Finally, in its conclusion 25 (XXXIII), adopted in 1982, the Committee reaffirmed the importance of the fundamental principles of international protection, in particular the principle of non-refoulement, which is gradually becoming a peremptory rule of international law. 7. UNHCR considers that government practice, including those provisions of national legislation which have traditionally incorporated the principle of non-refoulement, meets the criteria for the formation of customary international law, i.e. uniform practice combined with growing legal conviction. Thus, according to Verdross-Simma: The principle of non-refoulement is important because, in an international collective memory of the failure of nations during the Second World War, it offers refuge to refugees fleeing a particular genocide of Nazi Germany. After the Second World War, the international community realized the need for international control over the sovereignty of States over refugees. Considering that the Charter of the United Nations and the Universal Declaration of Human Rights adopted by the General Assembly on 10 December 1948 reaffirmed the principle that individuals enjoy fundamental rights and fundamental freedoms without discrimination, Even if a person poses a threat (i.e. suffers from a serious communicable disease), the principle of non-refoulement under the Convention against Torture and the International Covenant on Human Rights civil and political rights applies to States parties to the Convention. Convention (including the United States) “not abrogable”. The Committee against Torture – the body that monitors the implementation of the Convention against Torture – reaffirmed in its General Comment No.
4 that the principle of non-refoulement, like the prohibition of torture itself, cannot be abrogated. Similarly, the UN Human Rights Committee – charged with implementing the ICCPR – has formulated the principle of non-refoulement in absolute terms. In its general comment No. 20, the Committee stated that “States parties shall not expose persons returned to another country to the risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment by way of extradition, expulsion or refoulement”. A person cannot therefore be returned to a State where there are “reasonable grounds to believe” that he or she would be in danger of being tortured (in the case of the Convention against Torture). The ICCPR has been interpreted as containing a similar prohibition: according to a UNHCR opinion, a person may also not be returned “if there are reasonable grounds to believe that there is a real risk of irreparable harm, as set out in Articles 6 [Right to life] and 7 [Right not to be subjected to torture or other cruel treatment or punishment, inhuman or degrading] of the [ICCPR]`. The European Court of Human Rights has also stressed that the ability of states to return asylum seekers in substandard conditions – including possibly in conditions of an uncontrolled pandemic – is limited by the European Convention. In the recent case of M.S.S. v. Belgium and Greece, an asylum seeker from Afghanistan challenged Belgium`s decision to send him back to Greece, where he first arrived in the EU. The Court concluded that Belgium had violated Article 3 of the Convention by returning the applicant to Greece because “the Belgian authorities, by returning him to Greece, exposed the applicant to conditions of detention and residence in that State contrary to that article”. As it cannot be overturned, the prohibition of non-refoulement applies regardless of the pandemic; In addition, “degrading detention and living conditions” may include conditions in countries where a pandemic is not under control.
16. The proposed wording of the non-refoulement provision accepted as a basis for discussion (document E/C.2/242) addressed two different issues: 35. The principle of non-refoulement is also reflected in Article II(3) of that convention as follows: 28. This part of the negotiating history has been described in detail because it has sometimes been cited to support the view that Article 33(1) may not apply to refusal at the border. However, it is questionable whether the President`s “decision” can be understood as a binding interpretation that may distract from the clear wording and obvious intent of the provision, namely to ensure that refugees are not “pushed into the arms of their persecutors”. It was also significant that the President had not recorded the interpretation proposed by the representative of Switzerland that the words “return” or “refoulement” applied only to refugees who had already entered the territory of a Contracting State. It merely took note of the interpretation proposed by the representative of the Netherlands that the possibility of cross-border mass migration or attempted mass migration did not fall within the scope of article 33. Moreover, it is clear from the statements of various representatives quoted above on the inapplicability of article 33, paragraph 1, to situations of “mass migration” that the intention was not simply to arrive large numbers of asylum-seekers, but to arrive in such large numbers that the State of asylum was able to deal with them without the cooperation of the international community. Subsequent events have shown that with the development and strengthening of international cooperation in dealing with refugee problems, these understandable fears have been largely overcome and the principle of non-refoulement is now considered fully applicable in mass influx situations. In this context, reference should be made to Conclusion No. 22 (XXXII) adopted in 1981 by the UNHCR Executive Committee on the protection of asylum-seekers in the event of mass influxes.
Point II A(1) of that conclusion states that `[w]here in the event of a large influx, the principle of non-refoulement, including non-refoulement at the border, shall be strictly observed`. Regional human rights courts have also addressed the principle of non-refoulement. In Tineo Family v. Bolivia, the Inter-American Court of Human Rights, has formulated procedural safeguards that states parties to the American Convention on Human Rights (ACHR) must respect before they can expel or expel an asylum seeker. The state must allow an asylum seeker a “reasonable and individual” analysis of his or her claim, must assess that person`s “personal circumstances” and, in the event of an unfavourable decision, must have the right to a “review by a competent authority”. These guarantees represent a procedural minimum; States that are parties to the ACHR have a clear obligation to comply, even during a pandemic. The following year, the Court ruled in the case Children`s Rights and Guarantees in the Context of Migration that States Parties may not return or expel a person – asylum-seeker or refugee – to a State where his or her life or freedom may be threatened as a result of persecution. or because of general violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances that have seriously disturbed public order.
The “other circumstances” provision is broad and could theoretically prevent a state from returning asylum seekers to countries that have failed to control a pandemic. However, an expert roundtable organized by UNHCR warned that the “other circumstances” provision is “the least applied by government practice and therefore appears to be the least common understanding of its interpretation.” 5. The principle of non-refoulement includes non-refoulement at the border where such refoulement would have the effect of forcibly removing a person to a country of persecution. It is questionable whether non-refoulement is a jus cogens of international law.   If this is the case, international law would not permit abbreviations for any purpose and under any circumstances. The debate on this issue has been revived following the terrorist attacks of 11 September 2001 in the United States and other terrorist attacks in Europe.  13. The wording of article 3 of the 1933 Convention makes it clear that the principle of non-refoulement set out therein also applies to refoulement at the border. The reference to the 1933 Convention in the Secretary-General`s Memorandum of 3. January 1950 and in the report of the ad hoc committee at its first meeting seem to indicate that there must be no deviation from the standard established in pre-war instruments.
The draft provision adopted by the ad hoc committee read as follows: 5. In many cases, the State concerned was a party to the 1951 UN Refugee Convention or the 1967 UN Protocol relating to the Status of Refugees. In such cases, the High Commissioner could, of course, base his action on a contractual obligation assumed by the Government concerned. However, there were also many cases in which the High Commissioner was obliged to make representations to States which were not parties to the Convention or the Protocol, and the Office of the High Commissioner must necessarily invoke the principle of non-refoulement, independently of any contractual obligation. In response to these representations by the High Commissioner, the Governments to which they addressed reacted almost without exception in a way that suggested that they accepted the principle of non-refoulement as a guideline for their actions. Indeed, in many cases, they have attempted to explain a case of actual or intentional refoulement by providing additional clarification and/or stating that the person concerned should not be considered a refugee. The fact that States have found it necessary to provide such explanations or justifications may reasonably be regarded as an implicit confirmation of their acceptance of the principle.