DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2016-17
B.A.L.L.B.(Hons.)-IVth Semester

PUBLIC INTERNATIONAL LAW

FINAL DRAFT
PRINCIPLE OF NON-REFOULEMENT

Submitted To: Submitted By

Mr. Manwendra Tiwari Stuti Sinha
Astt. Professor (Law) Sec-B (Roll No.149)
 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................... 3

WHO IS A REFUGEE? ................................................................................................................... 4

WHAT IS THE PRINCIPLE OF NON-REFOULEMENT? ........................................................... 7

APPLICATION OF THE PRINCIPLE ........................................................................................... 9

Measures of refoulement ........................................................................................................ 11

SCOPE OF ITS MISUSE .............................................................................................................. 13

Lack of definition laying foundation for broad interpretation: .................................................. 14

Applying the principle of non refoulement becomes tricky: ..................................................... 16

CONCLUSION .............................................................................................................................. 19
INTRODUCTION
The word non-refoulement, derived from the French word refouler, means to drive
back or to repel. Non-refoulement is a principle of customary international law
prohibiting the expulsion, deportation, return or extradition of an alien to his state of
origin or another state where there is a risk that his life or freedom would be
threatened for discriminatory reasons.

Since the principle of non-refoulement has evolved into a norm of customary

international law, states are bound by it whether or not they are party to the
Convention relating to the Status of Refugees (following as 1951 Convention).

This principle is also a part of so-called jus cogens. Thus, (as a part of customary and
treaty law) , all countries are legally bound by the prohibition of returning refugees in
any manner whatsoever to countries or territories where their lives or freedom may be
threatened because of their race, religion, nationality, membership of a particular
social group or political opinion, which is the cornerstone of international protection
(in An Introduction to International Protection, UNHCR). It is embodied in Article 33
(1) of the 1951 Convention.
WHO IS A REFUGEE?
Before going to the principle of Non- refoulement, it is important to know who is a
refugee. Normally, people understand that whoever flees from his/her country of
nationality to some other country for security reasons and roam around in search of
food and shelter is a refugee. But in International law there are many other aspects of
a refugee that have to be taken into account in order to regard him/her as one.

Basically, a refugee is a person who does not enjoy protection in the country of his
nationality and has been forced to flee his or her country because of persecution, war,
or violence1. War and ethnic, tribal and religious violence are leading causes of
refugees fleeing their countries. The only international legal norms applying
specifically to refugees at global level are the 1951 UN Convention relating to the
status of refugees (Geneva Convention) and the 1967 Protocol relating to the status of
refugees2. The Convention was drafted under the specific conditions of the post-war
period, applying only to persons who became refugees as a result of events occurring
before 1 January 1951 in Europe. This temporal and geographical limitation was
removed by the 1967 Protocol. A refugee has a well-founded fear of persecution for
reasons of race, religion, nationality, political opinion or membership in a particular
social group. Most likely, they cannot return home or are afraid to do so.

According to Article 1 of the 1951 UN Convention, as modified by the 1967 Protocol,

a refugee is defined as a person who owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country. This
definition implies that several qualifying conditions apply to be considered a refugee:
(1) presence outside home country;

(2) well-founded fear of persecution (being at risk of harm is insufficient reason in the
absence of discriminatory persecution);

(3) incapacity to enjoy the protection of ones own state from the persecution feared.3

1
http://www.unrefugees.org/what-is-a-refugee/.
2
https://epthinktank.eu/2015/10/27/refugee-status-under-international-law/.
3
Article 1 of the UN Convention Relating to Status of Refugees, 1951.
However, Article 1 of the Convention also talks about those people whom the benefits
under this convention is not applicable to.4 It ceases to apply to any person who:

1. Has voluntarily re-availed of the protection from the country of his nationality.
Meaning thereby, if a person, who fled from the country of his nationality, later
returns to his country voluntarily and also avails all the requisite protection from
the country of his nationality shall not be considered a refugee anymore.

2. Having lost his nationality, he has voluntarily re-acquired it.

3. He has acquired a new nationality, and enjoys the protection of the country of his
new nationality; or

4. He has voluntarily re-established himself in the country which he left or outside

which he remained owing to fear of persecution; or

5. He can no longer, because the circumstances in connection with which he has

been recognized as a refugee have ceased to exist, continue to refuse to avail
himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A
(1) of this article who is able to invoke compelling reasons arising out of previous
persecution for refusing to avail himself of the protection of the country of
nationality;

6. Being a person who has no nationality he is, because the circumstances in

connection with which he has been recognized as a refugee have ceased to exist,
able to return to the country of his former habitual residence;

7. This Convention shall not apply to persons who are at present receiving from
organs or agencies of the United Nations other than the United Nations High
Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the
position of such persons being definitively settled in accordance with the relevant
resolutions adopted by the General Assembly of the United Nations, these
persons shall ipso facto be entitled to the benefits of this Convention.

4
Clause C, D,E &F of article 1 of the Convention.
8. This Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the rights and
obligations which are attached to the possession of the nationality of that country.

9. The provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make provision
in respect of such crimes;

(b) He has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;

(c) He has been guilty of acts contrary to the purposes and principles of the United
Nations.
 WHAT IS THE PRINCIPLE OF NON-REFOULEMENT?

Principle of Non-Refoulement is the principle that ensures protection of the refugees

around the globe. Article 33 of the UN Convention on refugees, 1951 says:

Prohibition of expulsion or return (refoulement):

1. No 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.

2. The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country.

The two clauses of the abovementioned article talk about the principle of Non-
Refoulement and who are benefitted by the provision. According to clause 1 of the
article, no refugee should be returned or expelled to any place where there is a threat
to his life.

The principle of non-refoulement is seen by most in the international law arena,

whether governments, non-governmental organisations or commentators, as
fundamental to refugee law. Since its expression in the Refugee Convention in 1951,
it has played a key role in how states deal with refugees and asylum seekers. But what
does the principle really involve? An expert in refugee law defines it as the idea that
no refugee should be returned to any country where he or she is likely to face
persecution or torture.5 A hypothetical example could be useful to clarify. At its most
basic level, the principle prevents the government of State A from returning refugees
from State B to State B, where there is a valid concern that they could be in danger
should they be returned. Debate surrounds many aspects of this principle, including
whether or not a refugee has to be found on the territory of State A, or can merely be
attempting to enter, and also what standard should be used to judge what danger
warrants not returning the refugee.

5
Guy S. Goodwin-Gill The Refugee in International Law (2 ed, Clarendon Press, Oxford, 1996) 117.
Prior to the 1930s this principle did not exist at international law.6 In order to
understand the principle it will be useful to look at the circumstances and reasons
surrounding its development. During the first half of this century the idea that it was
fundamentally wrong to return refugees to places where they would clearly be in
danger was mentioned occasionally by states in agreements or statutes, or was evident
in the practice of some states. Although by 1905 it had been enshrined in a UK statute
that refugees with a fear of persecution for political or religious reasons should be
allowed into the country, it was not until later that the idea of non-refoulement of such
people became widely accepted. It was first expressed at international law in the 1933
Convention relating to the Status of Refugees which, however, was ratified by very
few states.

The massive refugee flows produced by the ructions of World War II provided an
impetus for a thorough examination of the rules relating to refugees. Prior to this time
states had been very aware of the extent to which consent to rules, especially
international rules, relating to refugees, would impact on their sovereign right to
determine who was allowed to reside within their boundaries. Although many
appeared to have accepted that there was a moral duty to accept refugees, and not
return them, this was done largely on an ad hoc basis. However, in the first few years
of its creation, the United Nations showed its concern with the refugee issue. In 1946
the General Assembly passed a resolution stating that refugees should not be returned
when they had valid objections. This concern, prompted largely by the huge number
of refugees in Europe following the war, eventually led to the drafting of the United
Nations Convention Relating to the Status of Refugees, which was signed in 1951.7

Procedures or arrangements for identifying refugees should provide a guarantee

against refoulement, by ensuring that persons who are entitled to protection do in fact
receive it. Such procedures or arrangements are particularly important when a country
receives both asylum-seekers and migratory movements. In UNHCR's view, respect
for the principle of non-refoulement can therefore be most effectively ensured if
claims to refugee status and asylum are determined substantively and expeditiously. 8

6
Robert L. Newmark Non-Refoulement run afoul: The Questionable Legality of Extraterritorial
Repatriation Programs (1993) 71 Wash U.L.Q.833,837.
7
http://www.refugee.org.nz/JessicaR.htm#6.
8
http://www.refworld.org/docid/438c6d972.html.
 APPLICATION OF THE PRINCIPLE
In the case of persons who have been formally recognised as refugees under the 1951
Convention and/or the 1967 Protocol, the observance of the principle of non-
refoulement should not normally give rise to any difficulty.

In this connection, particular regard should be had to the fact that a determination of refugee
status is only of a declaratory nature. The absence of formal recognition as a refugee does not
preclude that the person concerned possesses refugee status and is therefore protected by the
principle of non-refoulement.

In fact, respect for the principle of non-refoulement requires that asylum applicants be
protected against return to a place where their life or freedom might be threatened until it has
been reliably ascertained that such threats would not exist and that, therefore, they are not
refugees. Every refugee is, initially, also an asylum applicant; therefore, to protect refugees,
asylum applicants must be treated on the assumption that they may be refugees until their
status has been determined. Without such a rule, the principle of non-refoulement would not
provide effective protection for refugees, because applicants might be rejected at the frontier
or otherwise returned to persecution on the grounds that their claim had not been established.
The principle of non-refoulement applies to refugees, irrespective of whether they have been
formally recognised as such - that is, even before a decision can be made on an application
for refugee status - has been specifically acknowledged by the UNHCR Executive Committee
in its Conclusion No. 6 on Non-Refoulement. And indeed, where a special procedure for the
determination of refugee status under the 1951 Convention and the 1967 Protocol exists, the
applicant is almost invariably protected against refoulement pending a determination of his or
her refugee status.

There are, however, a number of situations in which the observance of the principle of non-
refoulement is called for, but where its application may give rise to difficulties. Thus the
person concerned may find himself in a State which is not a party to the 1951 Convention or
the 1967 Protocol, or which, although a party to these instruments, has not established a
formal procedure for determining refugee status. The authorities of the country of asylum
may have allowed the refugee to reside there with a normal residence permit or may simply
have tolerated his or her presence and not have found it necessary formally to document his
or her recognition as a refugee. In other cases, the person concerned may have omitted to
make a formal request to be considered a refugee.
In situations of this kind it is essential that the principle of non-refoulement be scrupulously
observed even though the person concerned has not - or has not yet - been formally
documented as a refugee. Again, this flows from the fact that, first, the recognition of a
person as a refugee, whether under UNHCR's mandate or under the 1951 Convention or the
1967 Protocol, is declaratory in nature, and, second, that the principle of non-refoulement is a
norm of customary international law.

The need to provide international protection to persons fleeing armed conflict and civil strife,
whether or not they come within the terms of the 1951 Convention definition, is generally
accepted in practice by States as a humanitarian responsibility. The protection accorded in
these countries to persons who are not deemed to be refugees under the 1951 Convention is
normally granted as a humanitarian act, or as a duty under national law (including
constitutional provisions). It should also be noted that many of these countries are parties to
international instruments that could be invoked in certain circumstances against the return of
some non-Convention refugees to a place where their lives, freedom or other fundamental
rights would be in jeopardy, notably the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment or the European Human Rights Convention.
Although these instruments may not provide protection against refoulementas broad as that
provided in Africa by the OAU Refugee Convention, they give rise to international
obligations towards some persons in need of international protection who would not come
within the terms of the 1951 Convention.

This issue is also related to mass influxes and the concept of temporary protection. The
concept of temporary protection has been defined as a means, in situations of large-scale
influx and in view of the impracticality of conducting individual refugee status determination
procedures, for providing protection to groups or categories of persons who are in need of
international protection. It is primarily conceived as an emergency protection measure of
short duration in response to large-scale influxes, guaranteeing admission to
safety, protection from non-refoulement and respect for an appropriate standard of treatment.
While the practice of granting temporary refuge, or asylum, on a temporary basis to refugees
has often been employed in situations of large-scale influx in various regions, UNHCR first
formally recommended the granting of temporary protection to persons fleeing the conflict
and human rights abuses in the former Yugoslavia.
The applicability of the non-refoulement principle to beneficiaries of temporary protection is
explained by the fact that, among its beneficiaries, there are refugees in the sense of the 1951
Convention and also because they are asylum-seekers who have not had their claims
determined. The EU proposal concerning temporary protection, submitted by the
Commission, expressly recognises this linkage with the non-refoulement principle in its
preamble.

In Latin America, the scope of the Cartagena Declaration closely resembles the OAU
Refugee Convention, also with respect to the non-refoulement principle. This Declaration
was adopted by a group of experts and representatives from Governments at a Colloquium
held in Cartagena, Colombia, in November 1984. Building on the precedent provided by the
OAU Convention and on the work of the Inter-American Commission on Human Rights, the
Declaration recommends the use in the region of a "definition or concept of refugee ... which,
in addition to containing the elements of the 1951 Convention and the 1967 Protocol,
includes among refugees persons who have fled their country because their lives, safety or
freedom have been threatened by generalised violence, foreign aggression, internal conflicts,
massive violation of human rights or other circumstances which have seriously disturbed
public order." Although the Declaration itself is not a binding legal instrument, it has
repeatedly been endorsed by the Organisation of American States (OAS). The Cartagena
Declaration has widely been accepted as the refugee protection basis in Latin America and
has been incorporated into the national legislation of several Latin American States.

Measures of refoulement

Measures of refoulement are various and include expulsion/deportation orders against

refugees, return of refugees to countries of origin or unsafe third countries, electrified fences
to prevent entry, non-admission of stowaway asylum-seekers and push-offs of boat arrivals or
interdictions on the high seas.

Whenever refugees - or asylum-seekers who may be refugees - are subjected, either directly
or indirectly, to such measures of return, be it in the form of rejection, expulsion or otherwise,
to territories where their life or freedom are threatened, the principle of non-refoulement has
been violated.

Furthermore, having regard to the nature and purpose of the principle, it also applies to
extradition. Indeed, the protection of a refugee cannot be regarded as complete unless he or
she is also protected against extradition to a country where he or she has reason to fear
persecution. Insofar as their actual wording is concerned, statements of the principle of non-
refoulement figuring in various international instruments are wide enough to cover
extradition. This applies in particular as regards the wording of Article 33 (1) of the 1951
Convention. Most extradition conventions also foresee a safeguard against extradition to
countries of persecution.9

9
http://www.refworld.org/docid/438c6d972.html.
 SCOPE OF ITS MISUSE
What does international law tell us about refugees? To what extent could the law and
especially the principle of non-refoulement, give us some answers to this situation? How does
the subjective interpretation or the misuse of the concept of non-refoulement allow for a
mistreatment of refugees, thus a violation by the States of their international obligations?
After all, is the language of non-refoulement promising more than it can deliver?

The Universal Declaration of Human Rights of 1948 states in its art. 14 that Everyone has
the right to seek and to enjoy in other countries asylum from persecution. The protection of
human beings is at the core of International Conventions related to human rights.

These same ideas are supposed to rule the international statute of refugees, as it was
expressed in the 1951 Convention on Refugees. In its introduction, the Convention mentions
that A remarkable feature of the Convention is the establishment of a system of international
protection to persons who are in need of it. In light of experience, the adoption of an
international convention would appear to be one of the most effective ways of guaranteeing
refugees the exercise of such rights. Thus, looking into these binding international texts, we
better understand the principle of prohibiting what the Convention calls refoulement.

The first part of the article 33(1) clearly demonstrates the aim of the Convention to define
broadly the principle in order to ensure a wide and unlimited protection to refugees: no
refugee should be returned to his country if he is to be subjected to any kind of persecution.
States have the international responsibility to provide immediate protection to these people
in any manner whatsoever. This expression certainly conveys the aim of the authors of the
conventions to impose the compulsory effects of these provisions to the States.

Yet, this broad definition, as well as the exceptions contained in the second paragraph of the
article, and the concrete application of the principle demonstrate the ambiguity of the term
and the opportunity given to the State to define the term according to its national imperatives.
As the United Nations Refugee Agency pointed out soon after September 11th, it seems hard
to address security concerns without undermining refugee protection (2001). The principle
of non refoulement is in fact an open and ambiguous term which contains several
contradictions: While states have committed to respecting the principle by joining the 1951
Refugee Convention and key human rights conventions, its content is not established in
international law. In other words, states have committed to a principle the content of which is
indeterminate.10

Lack of definition laying foundation for broad interpretation:

The principle of non-forcible return, contained in art. 33 of the Refugee Convention, allows
for a broad judicial interpretation that undermines its objectivity, and therefore its equal
application by the States.

As the Convention mentions: No Contracting State shall expel or return (refouler) a

refugee. The first term that is left to the discretion of the State is certainly the concept of
refugee, rarely defined by the Media. Because each legal qualification doesnt provide the
same statute and effective protection, it is crucial to make a distinction between the terms
refugee, repatriates, displaced people, asylum seekers or migrants. Under the
1951 Refugee Convention, the core document determining the international legal statute of
refugees, a refugee is a person owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or political opinion, is
outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to
avail himself of the protection of that country.

Therefore, the Convention suggests three criteria to identify a refugee:

1. The refugee is outside of his home country.

2. He fears he might be persecuted for discriminatory reasons.
3. He doesnt want or cant ask for the protection of his home country because he might
be subjected to persecution.

It should be noted that this Convention was completed by the adoption of the 1967 New York
Protocol.

On the basis of this definition, several countries explained the notion through other legal
documents. The African Union Organization with its Convention in 1969 or Latin American
countries, through the Cartagena Declaration (1984), gave a larger definition of a refugee
in order to ensure a more objective and global protection. For instance the African
Convention of 1969 prescribes that all persons fleeing from civil wars, wars or generalised

10
https://mymadicblog.wordpress.com/2015/10/07/understanding-the-legal-concept-of-non-
refoulement-and-its-repercussions-on-the-european-refugee-crisis/
violence, should be entitled to ask for the refugee statuts whether or not they fear
persecution. Although these regional conventions give a broader sense to the concept of
refugee, which ensure more protection for asylum seekers, they also create a legal gap
between their provisions and the ones of the 1951 Convention. They create a problem of legal
incoherence: the notion of refugee is a changing term with no stable and universal definition.
Consequently, the States can choose between a broad or a restrictive definition of a refugee.

As for the notion of asylum, it is not defined by the international law. An asylum seeker is
generally considered to be the person who seeks a States protection under the status of
refugee. The State is responsible for deciding if this person matches fulfils criteria of the
refugee. All in all, the lack of concrete and common definition of crucial terms of the
international migration law and refugee law lay the foundation for an incomplete and blurry
legal framework.

In addition, the principle of non-refoulement is directly tied to the acknowledgment of a

threat of persecution, torture or cruel and inhuman treatment. As the Convention states
(art. 33), a refugee should not be returned to his country where his life or freedom would be
threatened. This provision of the 1951 Convention cannot be cut from considerations of
humanitarian law and international texts protecting human rights. Inasmuch as the application
of the principle of non refoulement is implied by the determination of threat, or
persecution, we can then wonder whether there is a clear definition of these concepts. As
Perjola shows in his article, international law fails in giving a clear and objective legal
qualification of what should be considered torture or persecution. Accordingly, it is
mainly national courts that have been in charge of their definition. For instance, the
Commission for human rights exposed the notion of inhuman treatment covers at least such
treatment as deliberately causes severe suffering, mental or physical, which in the particular
situation is unjustifiable. Treatment or penalty of an individual may be said to be degrading if
it grossly humiliates him before others or drives him to act against his will or conscience
(Greece v. The United Kingdom case, 1969).

Even though Courts might clarify these notions, their decisions will still vary from one State
to another, which brings about legal instabilit for claimants. Interpretation is risky because of
the multiplicity of factors that might influence it.

Exceptions to the principle of non-refoulement:

Besides the problem of its interpretation, the principle of non-refoulement has two significant
exceptions: a refugee will not be protected by the State if he threatens the national security of
this State or if he has been convicted for a particularly serious crime which constitutes a
concrete risk for the community of the State. Obviously, these exceptions reveal a tension
between the States national interest and the protection of people. The United Nations High
Commissioner for Refugees (HCR), responsible for supervising the application of the 1951
Convention, has determined criteria to identify these exceptions (i.e. for the first exception, it
requires to respect a principle of proportionality: the State must prove that the forcible return
of the person to its home country, and the persecutions he might be subjected to there, is
necessary to ensure the security of its country. Still, if the person is threatened to be tortured,
the HCR prohibits refoulement).

Yet, according to the interpretation of the exceptions, a State will be able to deny protection
to a refugee for national security measures or anti-terrorism necessities. Alice Farmer recalls
the use of these exceptions by the United States to refuse refugee protection after the 9/11
events. As she explains, the problem is that a broad use of these exceptions could have a
catastrophic effect, excluding legitimate refugees from protection, weakening the foundations
of the refugee law regime, and undermining the legitimacy of the new peremptory norm.
(Farmer, 2008).

The difficult application of the principle during situations of emergency and the regular use
of precautionary measures

The current crisis in Europe has been made even more complex because of the urgency of the
situation. The arrival of thousands of migrants, potential refugees, to the frontiers of the
European States creates a new tension between the necessity for States to react rapidly and
the legal obligation to analyse individually demands for asylum in order to respect the
principle of non-refoulement. Given their limited capacity of reception, States must
distinguish between simple migrants and refugees, which undoubtedly takes time and poses
logistical challenges

Applying the principle of non refoulement becomes tricky:

States often apply the principle but, given the large number of migrants and the political
issues tied to their reception, they do not ensure that refugees and asylum seekers are well-
treated during their period of transition. In MSS v. Belgium and Greece (2011), the European
Court of human rights denounced the cruel treatment inflicted to refugees living in detention
centers in Greece. The same has been recalled by the European Court in its Sharifi and
Tarakhem v. Suisse decisions, both released in 2014. The principle of non refoulement can
bring about paradoxical situations in which asylum seekers are allowed to stay in Europe but
end up living in very bad conditions, often contrary to international human rights.

Also, States regularly make sure to avoid the application of the non-refoulement principle by
implementing precautionary measures. In its Hirsi Jamaa Case (2012), the European Court
of Human Rights accused Italy for intercepting migrants in Lampedusa and sending them
back to Libya. What about the construction of walls in Europe then, like in Hungary? Is this
not an illegal precautionary measure in order to avoid the application of the principle of non-
refoulement?

The progressive reinforcement of the protection of the non refoulement concept by European
law

For some authors, the European law would grant an unconditional and more stable protection
to refugees than what the International law provides. At least, it could constitute a perfect
complement to the patchy protection provided by International conventions.

The article 3 of the European Convention on Human Rights on the prohibition of torture is
often cited as an example: Not only does the absence of exceptions in this Article contrast
with Article 33 of the Refugee Convention, the protections inherent in Article 3 apply to
everyone, not simply to those who meet the Refugee Convention definition of a refugee.
Although the standard of proof required by the European Court for a non-refoulement claim
to be admissible is relatively high, the applicant does not have to demonstrate a nexus
between the risk of torture and one of the five grounds for refugee protection of the Refugee
Convention (Duffy, 2008).

In addition to the European Convention on Human Rights and the decisions of the European
Court of Human Rights, the European Union has been active in determining a migration
competency for the Union, competency that used to fall completely into the hands of the
States members. Although it refers to the 1951 Convention to define the statute of refugee
(art. 78 TFEU), it created various flexible instruments in order to ensure the right application
of the principle of non-refoulement. The Maastricht (1992) and Amsterdam Treaties (1997)
were the first to elaborate some key concepts of a European law on refugees. This led to the
adoption of the Asylum European Regime (RAEC) in 1999 in Tampere and other essential
regulations (Dublin directives, EURODAC etc.). The Council Directive 2004/83/EC
establishes A common policy on asylum, including a Common European Asylum System, is
a constituent part of the European Unions objective of progressively establishing an area of
freedom, security and justice open to those who, forced by circumstances, legitimately seek
protection in the Community.

The enforcement of the international regulation on refugees by the European Union, added to
the construction of its own protection for refugees, would certainly mean a safer legal
environment in matters of asylum and management of refugees. For the Union, this would
also be another step towards the building up of its own and independent regulation on a
sensitive issue, normally contained within the States boundaries.
 CONCLUSION
In short, the principle of non-refoulement has its aim to protect the refugees around the world
from being mistreated and ensure a healthy and secure environment for them to survive. The
principle, though been recognised by many states, lacks legal status in many countries. Also
the UN Convention of 1951, that is the only major convention on refugee status, fails to give
a clear and unambiguous view to the status of refugees making the principle prone to get
abused and misused. Also, there is no guarantee as to whether those refugees are protected
who enter into the territory of a non-contracting state. In addition to that, the definition of
refugee under article 1 of the convention fails to differentiate between refugees, displaced
people and asylum seekers. Also, it provides that refugees are to be provided with the
benefits under this convention even before their status as refugee is ascertained making it
easy for the intruders to enter the territory of a foreign state and enjoy the benefits under the
convention. The principle of non- refoulement admit those who have fled from their country
of nationality because of threat to their life and survival. But there is no clear view as to what
exactly must be the circumstances under which such threat can persist. This might result into
any person seeking asylum in other country giving this reason behind fleeing from their own
country.

Thus, the principle of non- refoulment is subject to many violations. So, there is a need to
draft a bill or legislation in a more strict fashion so as to have proper implementation of this
principle and saving it from any kind of abuse.