What is refoulement?

Although it is not a recent human rights principle, the term "refoulement" is not often heard when discussing refugee and asylum practices. Over the last few days, however, it is a word that has been used frequently to describe Australia's much-criticized decision to return a boat of would-be asylum seekers to Sri Lanka while still on the high-sees.

More than 50 Australian international law experts have condemned the practice of sending back the refugees without hearing their cases individually. In a statement issued July 7, the lawyers said, "This raises a real risk of refoulement in breach of Australia’s obligations under international refugee and human rights law."

The United Nations has called for a review of Australia's handling of the refugees, specifically whether Australia respects the principle of non-refoulement for turning away a refugee without a fair hearing.

So what is non-refoulement and how is it protected in international law?

Concept explained

Refoulement, from the French word "refouler", means sending a person back to a country where they face a threat to their life or freedom.

The concept of non-refoulement in modern international law has its origins in the aftermath of World War 2. Many nations were anxious to ensure that incidents like those of Jewish refugees who were sent back into the hands of the Nazis would not happen again. The United Nations established its Convention Relating to the Status of Refugees in 1951.

"The world collectively came together 60 years ago and they said that there needs to be a mechanism for people who are fleeing situations... when they cross an international border, that they should be allowed in and that there should be a procedure which helps validate these claims [to refugee status]," Babar Baloch, a spokesperson for the UN Refugee Agency (UNHCR) in Geneva told DW.

Article 33 of the Refugee Convention states that "no contracting state shall expel or return 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."

There are exceptions to this rule, for instance, when the refugee concerned is regarded as a danger to the security of the receiving country or if they had been convicted of a "particularly serious crime" and were therefore a danger to the community of that country.

An international obligation

According to the UN, in the decades since its inclusion in the refugee convention, the principle of non-refoulement has become enshrined in customary international law, meaning it applies to all states, no matter whether they have signed the relevant treaties or not.

The principle is found in the UN's 1984 Convention Against Torture, which prohibits state parties from expelling or extraditing a person to a state where there are "substantial grounds" for believing they would be in danger of being subjected to torture. Many nations, including Australia, have included non-refoulement principles in their own laws.

The obligations for protecting refugees extend to not sending a person to a country from which they could in turn be sent on to a third country, where they would also face a risk of torture, freedom or loss of life.

Australia not alone

The discussion of non-refoulement has heated up in the context of Australia's decision to send back a boat full of refugees to Sri Lanka, but it is not the only country to be criticized recently. This year alone, a report by the UN categorizing human rights violations in North Korea warned that China should "respect the principle of non-refoulement and accordingly abstain from forcibly repatriating any persons" to North Korea.

Earlier this month, the UNHCR warned Sudan it was "deeply concerned" that the country was forcing refugees from Eritrea back across the border, saying the process "amounts to refoulement".

Uncertain consequences

While the potential consequences for asylum seekers returned to nations where they face persecution or torture are grim, the legal consequences for the countries or authorities who send them back there are less clear.

Aside from heavy criticism from the international law community, human rights organizations and the public, few examples exist of countries alleged to have broken the principles of non-refoulement being punished.

As far as the UNHCR is concerned, it is urging nations to make sure they properly assess the claims of asylum seekers.

"If something is done hurriedly, and then it ends up in something that we all don't want to see to be happening with an individual, then the responsibility lies to the authorities that have been judging these cases," Baloch said.