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THE APPLICABILITY OF PRINCIPLE OF NON-REFOULEMENT UNDER

INTERNATIONAL LAW IN A SITUATION OF MASSIVE INFLUX, INTERNAL


CONFLICT AND OTHER GENERALIZED VIOLENCE: SYRIAN CONTEXT

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE


DEGREE OF BACHELOR OF LAWS (LLB)

HARAMAYA UNIVERSITY

COLLEGE OF LAW

BY:- BARNABAS TEMESGEN

ADVISOR:- DAWIT BERIHUN (L.L.B) (L.L.M)

February, 2016
CHAPTER ONE

1. GENERAL FRAMEWORK OF THE RESEARCH

1.1 Introduction
There are two fires: the fire of war, and the fire of exile. Syrian NGO worker in Istanbul, 11
June 2014.1

The Middle East has become more volatile in recent years, with states such as Iraq and Syria
having lost control of a significant amount of territory, seriously undermining state power.2

The current ongoing conflict in Syria between the government of Bashar al-Assad and various
other forces, which started in the spring of 2011, will enter its fifth year soon, with no sign of an
end. The impact is scary. It is believed that at least 190,000 people have been killed since the
beginning of the conflict. Almost half of the population has been forced to leave their homes
including over 3.9 million who have sought refuge in neighboring countries 75% of whom are
women and children. Among these estimated refugees 1.7 million are children and currently this
number is increasing time to time. As the crisis carry on, refugees are forced to exhaust their
savings and resources and are increasingly becoming more vulnerable. Millions are in need of
life saving humanitarian assistance and international protection. Refugees continue to flow
across borders, with more than 800,000 arriving to countries in the region and countries further
during the beginning of 2015. Many have been internally displaced multiple times.
The crisis has extraordinary social and economic impacts on host countries in the region,
affecting their stability and reversing years of hard-won development gains; exacerbating pre-
existing vulnerabilities; overstretching basic social services such as health, water, sanitation and
education; aggravating unemployment; diminishing trade and investment; and creating
competition for limited and declining resources.

Despite the silence from the worlds great powers and improved activities of European Union
(EU), Lebanon and Jordan are now the leading host States of refugees globally, and they, like the
other major host countries of Turkey, Iraq, and Egypt, have been the largest providers of both

1
STRUGGLING TO SURVIVE REFUGEES FROM SYRIA IN TURKEY, EUR 44/017/2014 English, Amnesty
International 2014,[hereinafter EUR 44/017/2014] pp. 4
2
Addressing the Long-Term Challenges in the Syrian Refugee Response, Meeting Summary of NOREF, 30
September - 1 October 2014, pp. 1
human and financial resources for the response. They cannot, however, bear this responsibility
without the support of the international community.

The assignment at the forefront goes well beyond the resources, expertise, capacities, and
mandates of humanitarian organizations. Longer-term and scaled-up aid and assistance by
development actors, bilateral partners, international financial institutions and the private sector is
being fetched in to address the huge structural impact of the crisis. The response requires new aid
architecture. This paper looks at encumbers and costs of the Syrian refugee crisis and considers
how they have, or have not, been shared by the international community at large.

1.2 Background of the Study


In the past, perceptions of asylum and refuge have helped to address the human agony and public
disorder caused by mass displacement, during and between the First and Second World Wars.
However, the current modern international refugee law system is not devised towards this
problem. The 1951 Convention protects individuals fleeing a well-founded fear of persecution on
the basis of certain types of discrimination: on the basis of race, religion, nationality, political
opinion or membership in a particular social group.3 The Convention attaches asylum to the
international human rights law of non-discrimination, not international humanitarian law. This
selection is particularly significant as international refugee law is a unique small chink in the
otherwise impenetrable armor of the sovereign states right under international law to control
entry of non-citizens.4

In just over four years, over 6.5 million5 women, men and children have internally displaced
escaping violence, persecution and other intolerable hardships in Syria while another three
million have sought refuge in neighboring countries looking for hope of safety and security
outside of the nation. Neighboring states have excessively shouldered the responsibility to
receive Syrian refugees. As of October 2014, Lebanon has 1,191,451 million registered Syrian
refugees,6 Jordan is hosting 627,295 Syrian persons of concern.7 While Egypt is hosting 133,619

3
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, Article 33(1), available at: http://www.refworld.org/docid/3be01b964.html.
4
Usha Natarajan, Forced Displacements from Syria or How to Institutionalize Regimes of Suffering, Volume 2,
Issue 6, May 19, 2013,[hereinafter Usha Natarajan] pp. 2.
5
UNHCR, Syria Regional Refugee Response, http://data.unhcr.org/syrianrefugees/regional.php.
6
UNHCR, Syria Regional Refugee Response: Lebanon, http://data.unhcr.org/syrianrefugees/country.php?id=122.
7
UNHCR, Syria Regional Refugee Response: Jordan, http://data.unhcr.org/syrianrefugees/country.php?id=107.
refugees, Iraq also contains 246,836 Syrians,8 while at least 1,718,147 million refugees from
Syria reside in Turkey.9

These five neighboring countries; Turkey, Lebanon, Jordan, Iraq and Egypt, host 97 % of Syrias
refugees.10 Based on the percentage of their own population, Lebanon and Jordan have the
largest Syrian refugee populations, whereas Turkey is likely hosting the largest Syrian
population outside of Syria.11

In late 2014 and at the beginning of 2015, the UNs Regional Response Plan (RRP) lingered only
51% financed, while European Union (EU) member States and other wealthy potential countries
carry on to deny access to their territories.12 The Syrian refugee crisis has now entered its fifth
year.

Earlier on March 2011, mass protests extended across Syria, exacerbating an atrocious attack
from the government which lead to an internal armed conflict and humanitarian calamity.13
While more than 150,000 people are reported to have been killed, approximately 10.8 million
people are demanding urgent humanitarian assistance, and including around 6.45 million people
are internally displaced.14 It seems there is no a near end to the conflict and people are still
fleeing. According to the UN High Commissioner for Refugees (UNHCR) reports in late 2014,
more than 3.2 million Syrian refugees were registered even though the real number undeniably
higher.15 The majority of the populations are children.16

The EU and its member States have managed to create an increasingly impenetrable fortress to
repel irregular migrants and refugees, especially those coming from Syria, according to Amnesty

8
Regional Map Showing Flow of Externally Displaced Syrian Refugees:
http://data.unhcr.org/syrianrefugees/regional.php
9
Number of Syrian Refugees in Turkey Reaches 1.6 Million: Turkish Emergencies Ministry, 22 October 2014,
http://en.ria.ru/world/20141020/194343672/Number-of-Syrian-Refugees-in-Turkey-Reaches-16- Million-
Turkish.html.
10
UNHCR, UNHCR and host countries to push for greater international help on Syrian refugees, 4 September 2013,
http://www.unhcr.org/522756779.html.
11
Amnesty International, An International Failure: The Syrian Refugee Crisis, December 2013 (ACT 34/001/2013),
http://www.amnesty.org/en/library/info/ACT34/001/2013/en, pp. 3.
12
UNHCR, Syria Regional Refugee Response, http://data.unhcr.org/syrianrefugees/regional.php.
13
EUR 44/017/2014, pp. 5
14
United Nations Office for the Coordination of Humanitarian Affairs, Syria, http://syria.unocha.org/.
15
UNHCR, Syria Regional Refugee Response, http://data.unhcr.org/syrianrefugees/regional.php.
16
UNHCR, The Future of Syria: Refugee Children in Crisis, http://unhcr.org/FutureOfSyria/.
International documents.17 Hence, without a significant arrangement in national policies of
States, the UNHCRs longer term goal would be unfeasible to reach. Due to absence of safe legal
paths to leave Syria, most of Syrians are forced to attempt crossing borders illegally risking their
lives.

The response forwarded from the international community to the Syrian refugee crisis has been
an abject failure, with hopes of safety and security for most refugees has been brutally
deprived.18 Thus, it has become the worlds worst refugee crisis in a generation.

Accordingly, the question here will be what is the role and responsibility of States towards such
violations of human right and protection of the refugees from unnecessary distress on Syrian?
The big silence under international arena towards the enactment of international legal framework
to resolve this worldwide issue is the central impulse of this research.

1.3 Statement of Problem


It is apparent that the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
do not address mass forced displacement or the so called massive influx. The Convention does
not directly protect those forcibly displaced due to invasion and occupation, internal conflicts,
widespread indiscriminate human rights abuses, drought, famine or natural disaster (unless the
individual faces discrimination on Convention grounds).19 While international human rights,
humanitarian, and environmental law target some of these issues, they do not directly address
mass population movement. Thus, despite such movements posing long-standing global and
regional challenges, there is a legal vacuum on how to cooperate internationally. Apparently,
States have maintained this lacuna in international law.

Massive influx has been managed in ad hoc and unjust ways. Burdens are not fairly shared and
people are not treated equally. Such an approach is even more troubling as such displacement is
predicted to increase. So far, in the absence of any other international law dealing with forced
displacement, states have turned to the international refugee system and expanded the seemingly

17
Amnesty International, The Human Cost of Fortress Europe: Human rights violations against migrants and
refugees at Europes borders, July 2014, [hereinafter EUR 05/001/2014]
http://www.amnesty.org/es/library/info/EUR05/001/2014/en.
18
UN High Commissioner for Refugees Antonio Guterres, cited in Syria refugee crisis as bad as Rwanda genocide,
UN says, Telegraph, 16 July 2013, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10183899/Syria-
refugee-crisis-as-bad-as- Rwanda-genocide-UN-says.html.
19
Usha Natarajan, pp. 3
limitless mandate of UNHCR. UNHCRs populations of concern now stretch well beyond
Convention refugees, encompassing mass displacement and internal displacement.

Ever since the end of the Cold War the mass displacement has been the flourishing fact. As the
practice shows, when large figure of forcibly displaced reach host countries, they impound them
to camps. Especially, in the Arab region, there are new generations sometimes born and raised in
camps. Apparently, as the Syrian case demonstrates, improvised solutions have turned out to be
an institutionalized part of the international system, laying structures of injustice.

Most of the immigrants who fled from Syria remained in the neighboring Arab region; relatively
the majority of population settled in Jordan and Lebanon, while the rest significant populations
remained in Turkey, Iraq and Egypt. The Syrians fled from their country for different reasons
including political persecution; fear of execution, torture, enforced disappearance, rape and
abduction which resulted in arbitrary shooting, chaos, violence; and loss of house, family or
livelihood. However, such scenario can only fall under the scope of the Convention protection if
persecuted on the grounds of ethnicity, political opinion or other Convention grounds.20

Among the nearest neighboring host states, only Egypt and Turkey are party to the 1951
Convention and with significant reservations: Egypt restrict refugee entitlement to employment,
welfare, health and education;21 while Turkey only accepts refugees from events occurring in
Europe.22 Besides the Convention, the Universal Declaration of Human Rights entitles everyone
the right to seek asylum.23 Arguably, the prohibition of refoulement which stands for prohibition
of sending someone back to a place where their life or liberty is threatened on Convention
grounds has got customary international law status.24

20
ibid
21
United Nations Treaty Collection at
<http://treaties.un.org/pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=m
tdsg2&lang=en#EndDec> accessed 1 November 2015
22
United Nations Treaty Collection at <http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-
5&chapter=5&lang=en> accessed 7 May 2013. Thus, Turkey sees itself as a transit country for those fleeing Syria,
giving temporary asylum until those entitled to international protection seek asylum elsewhere. Lebanon adopts the
same policy, allowing persons to remain for a year, in which time UNHCR must resettle or repatriate them.
23
Universal Declaration of Human Rights art 14.
24
P. Chan, The Protection of Refugees and Internally Displaced Persons: Non Refoulement under Customary
International Law? (2006) 10 International Journal of Human Rights 231; G Goodwin-Gill and J McAdam, The
Refugee in International Law (2007) 201267; J Hathaway, The Law of Refugee Status (1991) 2427.
Under international law, all States whether Convention signatories or not, should abstain from
sending back asylum seekers at their borders. In relation to non-refoulement, after persistent
domestic and international pressure, both Iraq and Lebanon reopened their closed Syrian
borders.25

1.4 Research Questions

What is the concept of principle of non-refoulement under international legal


instruments?

What is the personal scope of the principle of non-refoulement and to whom does it
apply?

How do we apply the principle of non-refoulement in case of internal conflict and


generalized violence?

What is the international legal framework provided for international frontiers during a
situation of massive influx, conflict and violence in general?

What are the required roles and responsibilities of States and international community
towards resolving international refugee crisis?

1.5 Objectives of the Study


1.5.1 General Objectives
The general objective of this research is to make brief and comprehensive study on the
international legal instruments of different multilateral conventions in relation to non-repatriation
of peoples in need of humanitarian assistance. Moreover the research paper mainly focus on the
ongoing crisis in Syria and assess the actions taken by the international community such as
European Union (EU), United Nations (UN) and some actively participated States in upper hand.

25
A. Amrieh, Borders shut down in face of refugees fleeing Syria, Daily Star (20 May 2011)
<http://www.dailystar.com.lb/News/Politics/2011/May-20/Borders-shut-down-in-face-of-refugees- fleeing-
Syria.ashx> accessed 2 November 2015.
1.5.2 Specific Objectives
The specific objectives of the research are

To deliver necessary data how the conflict and violence inflicted in devastating violation
of human right on Syrian refugees.
To assess the position taken by the neighboring countries of Syria towards mitigating the
situation which is getting dire each year.
To evaluate the role of the EU towards the distribution of refugees with in its member
countries.
To appraise the impact of Regional Refugee & Resilience Plan 2015-2016 In Response
to the Syria Crisis.
1.6 Significance of the Study
This research paper will try to plainly show what should be done by the international
community and States on order to address the issue of ongoing refugee crisis in Syria by
looking closely to the actions taken so far by the relevant international institutions and
NGOs.
This paper will go through Regional Refugee & Resilience Plan 2015-2016 in response to
the Syria crisis. Moreover, it endeavors to insight the possible dangers posed up front if
the world doesnt take immediate action about the situation.
It will look for possible solution in relation to the applicability of principle of non-
refoulement on all states, whether Convention signatories or not, so as to determine
whether those fleeing Syria fall under international protection.
It will provide context- sensitive recommendations on the necessary care measures that
should be taken in order to alleviate Syrian refugees suffering in neighboring countries.

1.7 Research Methodology


A mixed-method approach was employed to obtain our data. This included: a) a literature
review; b) a media coverage review, summarized in a timeline. This review of the influx of
refugees into neighboring countries from the ongoing strife in Syria deals with the period
between 2011 and late 2015.

This paper is mainly composed of descriptive, analytical and in some parts narrative structure.
Furthermore, it explains the concept of principle of non-refoulement in relation to Syrian refugee
crisis and it also endeavors to define what the term non-refoulement refers under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol.

1.8 Limitation and Delimitation of the Study


1.8.1 Limitation of the Study

There isnt much to find scholarly research or article written on this area of study. However, this
research paper is mainly written based on the data collected from documents of different
international inter-governmental and NGOs on their annual report on the ongoing Syrian case.
Since the topic is a current issue on the world arena, it is almost impossible for the writer to refer
a well written literatures.

The other hindrance is lack of sufficient time to devote my whole time on the research paper due
to my other curricular obligations. Even though I admit that I am not an expert on the subject
matter, I will try to impose my whole energy and potential to write a good paper.

1.8.2 Delimitation of the Study


The central theme of this research will focus on the international legal framework governing the
notion of non-refoulement and its applicability in a situation of massive influx.

The scope of this study extends to devastating effect of ongoing conflict and violence in Syria
and as the security situation in the region deteriorates, Syrias neighbors continue to struggle
with the challenges of hosting large numbers of refugees and are preventing many refugees from
fleeing across borders, in contravention of international law.

Moreover, this paper will hold closer look at the current inter-agency UN Syria Regional
Response Plan on the emergency response for refugees and resilience for host communities. The
study also assess on the arrival of Syrian refugees who are generally seen as increasing the
competition over relatively scarce resources further tests and challenges this fragile balance.
However, assessing detailed program agenda of the plan is not covered by the scope of this
study.
1.9 Outline of the Study
This study is composed of five chapters. The First Chapter deals with the proposal part of the
research background and basic structure of the research including the objective, the significance,
methodology, and limitation of the study.

Chapter two discusses the definition of the principle of non-refoulement and its applicability
towards the Syrian case. In this chapter the study also show the basic claims of states alleging the
security of both neighboring and other host States at stake in a situation of massive influx.

Chapter three deals with the principle of non-refoulement in general international human rights
law customary international law and international humanitarian law. It will also analyze the legal
framework of the EU towards resolving dire crisis in Syria.

Chapter four is mainly conclusion part and also gives recommendation by the researcher and on
what should be done by international community in order to alleviate the dire situation.
CHAPTER TWO
2. THE PRINCIPLE OF NON-REFOULEMENT UNDER INTERNATIONAL LAW
2.1 What is Non-refoulement Principle?

Non-refoulement, the doctrine central to refugee protection that prohibits return of an individual
to a country in which he or she may be persecuted, has taken on an increasingly fundamental
character.26While the principle is also regarded by many scholars as a basic foundation in the
protection of refugee rights under customary international law; it is expressed in the 1951
Convention as a legal obligation binding upon on the signatories of the treaty.27
It is apparent that, the principle of non-refoulement has attained the status of customary
international law.28It is obvious that the norm of non-refoulement is part of customary
international law, accordingly binding on all States irrespective of whether they are party to the
1951 Convention. In addition, as many recent commentators have emphasized, now it is
considered as jus cogens norm29 that is, a peremptory norm of international law from which no
derogation is allowed.30 Any argument concerning refugees must begin with the non-refoulement
principle found under the 1951 Refugee Geneva Convention.31 We will see more detailed
arguments about the status of the principle on the subsequent sub-sections of this chapter with
reference to article 33(2) of the 1951 Refugee Convention.
Therefore, this paper first studies the stipulations of the 1951 Refugee Convention and its
applicability in the neighboring States of Egypt, Lebanon and Turkey. Specific consideration is
given to the new 2013 Turkish Law on Foreigners,32 which swap many of the most essentials of
the 1951 Refugee Convention into Turkish domestic law. Then, the paper turns its focus to the

26
Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in
Refugee Protection In International Law: UNHCR Global Consultations on International Protection (Erika Feller et
al. eds., 2003) at 87, 89. [hereinafter Elihu Lauterpacht & Daniel Bethlehem]
27
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 119 (2d ed.1996). pp.143
28
Jean Allain, The jus cogens Nature of non-refoulement, 13(4) INTL J. REFUGEE L. 533, 538 (2002)
29
Ibid.
30
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679,
(entered into force Jan. 27, 1980) [hereinafter Vienna Convention] art. 53.
31
Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 137 [hereinafter 1951 Refugee
Convention] art. 33.
32
Law on Foreigners and International Protection Law, 2013, No. 6458 (Turk.) [hereinafter Law on Foreigners]. An
unofficial English translation of this law prepared by UNHCR is available at
http://www.refworld.org/docid/5167fbb20.html (last visited Oct. 8, 2015).
so-called nexus requirement found in the 1951 Convention. But first we will review the history
of non-refoulment.33
2.2 The History of Non-Refoulement as a Fundamental Norm of Refugee Law
The notion of non-refoulement is regarded as the most fundamental principle of all international
refugee law obligations.34 It used for more than fifty years, as a prominent legal concept, before
it was codified in the post-World War II period; even though it was in an inconsistent or
comprehensive manner.35 The 1951 Convention Relating to the Status of Refugees, under article
33(1), provides Non-refoulement principle as
1. No Contracting State shall expel or return (refouler) a refugee in any
manner whatsoever to the frontiers of the 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.36
In its nature the principle, as provided under article 33, has a broader scope application; opening
a room for interpretation for protection refugees.37Accordingly, the phrase in any manner
whatsoever refers that the notion of refoulement must be interpreted broadly without any
limitation and it also extends to the exceptions of extradition for other treaty obligations of
States.38 Moreover, the expression where his life or freedom would be threatened is also in
construed widely to include any kind of well-founded fear of persecution as per the Convention39
and debatably threats such as generalized violence.40 Non-refoulement principle applies to a
wide range of people, including those who are seeking asylum and those already has been
granted, in spite of the legality of the person entered into the host state.41

2.3 Non-refoulement under Other International and Regional Refugee Instruments

33
1951 Refugee Convention, art. 1(A)(2).
34
Erika Feller, Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come, 18
INTL J. REFUGEE L. pp. 523
35
GOODWIN-GILL, pp. 117-19
36
Convention Relating to the Status of Refugees, adopted July 28, 1951, U.N. Doc. A/CONF.2/108 (1951), 189
U.N.T.S. 150 (entered into force 22 April 1954) [hereinafter 1951 Convention] art.33(1).
37
David Weissbrodt & Isabel Hortreiter, The Principle of Non-Refoulement: Article 3 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-
Refoulement Provisions of Other International Human Rights Treaties, 5 BUFF. HUM. RTS. L. REV. (1999) pp.18.
38
E. Lauterpacht & D. Bethlehem, pp.112.
39
1951 Refugee Convention, art.1.
40
E. Lauterpacht & D. Bethlehem, pp. 124-25.
41
E. Lauterpacht & D. Bethlehem, pp. 115-16.
Other International Refugee instruments enacted after the coming of the 1951 Convention
promote mostly the same definition while in some cases there is more unrestrained definition of
non-refoulement.42
The 1967 Protocol relating to the Status of Refugees (1967 Protocol) reaffirms the 1951
Convention while verifies its important terms like the definition of non-refoulement and
application of articles 2 to 34 of the 1951 Convention.43 The 1967 Protocol also applies the same
definition of a refugee with removal of the exception for geographical limitation under the
Convention.44
After the 1951, a well-founded fear of persecution which is stated under the 1951 Convention
is used as the basic standard for determining protection of refugees in most regional documents
on refugee law.45For example the OAU convention has defined the term refugee as The term
refugee shall mean every 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 . . . .46
Similarly, American Convention on Human Rights used the term as In no case may an alien be
deported or returned to a country, regardless of whether or not it is his country of origin, if in
that country his right to life or personal freedom is in danger of being violated because of his
race, nationality, religion, social status, or political opinions.47
On the other hand Cartagena Declaration explains the concept as to adopt the terminology
established in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
referred to in the foregoing paragraph with a view to distinguishing refugees from other
categories of migrants48

42
E. Lauterpacht & D. Bethlehem, pp. 90-93.
43
1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967) [hereinafter
1967 Protocol], art.I(1).
44
1967 Protocol, art.I(2).
45
Alice Farmer, Non-Refoulement And Jus Cogens: Limiting Anti-Terror Measures That Threaten Refugee
Protection, GEORGETOWN IMMIGRATION LAW JOURNAL, Vol. 23:1(2008) [hereinafter Alice Farmer] pp.6.
46
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S.
45 (entered into force June 20, 1974) [hereinafter OAU Convention] art.II(3).
47
American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 [hereinafter American Convention]
art.22(8).
48
Organization of American States, Cartagena Declaration on Refugees, O.A.S. Ser. L/V/II.66, doc. 10, rev.1, (Nov.
22, 1984) [hereinafter Cartagena Declaration] Declarations II(b) & III(5).
Furthermore, most aforementioned regional refugee instruments state that expulsion may
constitute refoulement while some specifically categorize rejection at the frontier as
refoulement.49Accordingly, the documents suggest keeping in mind the existing obligations and
refraining from rejection at the frontier.50
Non-refoulement should not only be seen as a principle with broad application, but also with its
acceptance as a fundamental principle of refugee protection.51 The fundamental nature of non-
refoulement is emphasized by its non-derogable character, as highlighted in Article 42 of the
1951 Convention and article VII(1) of the 1967 Protocol.52
The 1951 Convention, under article 33(2), has provided two exceptions: for public order and for
national security.53However, since this portion has wide area of debate over the issue, it will not
be discussed in detail under this paper. Thus, we will look the exception provided for States to
defend their national security especially in a situation of massive influx.
2.4 Non-refoulement and Situation of Massive Influx
In the current ongoing State practice, States have failed to have a common consensus in relation
to legitimate application of the exceptions provided under article 33 of the 1951 Convention. 54
Among other things massive influx, i.e large-scale population movements, has been repetitively
raised as a national security exception to the principle of Non-refoulement especially by those
States which share borders with other unstable states.55
The possibility of the reservation to the principle has been employed the 1967 declaration as for
overriding reasons of national security . . . as in the case of a mass influx of persons. 56However,
this issue is not free from debate; UNHCR global consultations promote a total protection for
non-refoulement in case of massive influx situations.57
The concept that an asylum seeker should request asylum in the first safe country he/she arrives
or the so called principle of first asylum, has been highly encouraged and enforced by many

49
Declaration on Territorial Asylum, G.A. Res. 2312 (XXII), 22 U.N. GAOR Supp. No. 16, U.N. Doc. A/6716
(Dec. 14, 1967) [hereinafter Declaration on Territorial Asylum] art.3(1).
50
E. Lauterpacht & D. Bethlehem, pp. 113-14.
51
U.N. High Commr for Refugees [hereinafter UNHCR], Executive Comm. Programme, Non-Refoulement,
Conclusion No. 6 (XXVIII) (1977) [hereinafter Executive Committee Conclusion No. 6]
52
1951 Convention, art. 42; 1967 Protocol, art. VII(1).
53
1951 Convention, art. 33(2).
54
Alice Farmer, pp.12.
55
GOODWIN-GILL, pp. 132.
56
Declaration on Territorial Asylum, art. 3(2).
57
Jean-Francois Durieux & Jane McAdam, Non-Refoulement through Time: The Case for a Derogation Clause to
the Refugee Convention in Mass Influx Emergencies, 16(1) INTL J. REFUGEE L. 13 (2004) pp. 5-6.
States.58 This can be also referred as an exception to the national security limitation in a situation
of massive influx.59 Though, this principle can only be implemented through resettlement aids
and financial funds derived from distant States to the border States in order to relive them from
over population tension.60
The principle of first asylum emphasizes that mass influx does not diminish a states duty to
grant asylum and non-refoulement, and it has questionably become internationally established
law.61 In this regard, State practice and international law have advanced to restrict the use of the
national security exception to non-refoulement principle in mass influx situations.62
That being said, this paper endeavors to examine the ongoing Syrian situation in line with the
principle of non-refoulement. It is apparent that, only few neighboring States of Syria are
members to the 1951 Convention or the 1967 Protocol to the Convention; they has have not yet
implemented relevant domestic legislations to make effective protection to the refugees either.
Nevertheless, both international human rights and humanitarian laws set broad and extensive
forms of legal norms which will assist an inclusive right of non-refoulement for persons
displaced from Syria to the neighboring states.63
2.5 The 1951 Refugee Convention and Domestic Law in the Surrounding States
As we have seen on previous chapter and sub sections of this chapter, the pillar legal instruments
of refugee protection under international law are the 1951 Convention and 1967 Protocol to the
Convention.
The term refugee is defined in article 1(A)2 of the convention as a person who,
As a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion, nationality,

58
GOODWIN-GILL, pp. 132-33.
59
GOODWIN-GILL, pp. 33.
60
GOODWIN-GILL, pp.141
61
U.N. High Commr for Refugees, Executive Comm. Programme, Functioning of the Sub-Committee and General
Conclusion on International Protection, Conclusion No. 2, para. (f) and (h) (1976); U.N. High Commr for Refugees,
Executive Comm. Programme, Refugees Without an Asylum Country, Conclusion No. 15 (XXX), para. (g) (1979);
U.N. High Commr for Refugees, Executive Comm. Programme, Protection of Asylum-Seekers in Situations of
Large-Scale Influx, Conclusion No. 22 (XXXII), para. II(A)(1) (1981); U.N. High Commr for Refugees, Executive
Comm. Programme, General Conclusion on International Protection, Conclusion No. 61 (XLI), para. (g) (1990);
U.N. High Commr for Refugees, Executive Comm. Programme, Note on International Protection, Conclusion No.
62 (XLI), para. (a)(iii) (1990); U.N. High Commr for Refugees Executive Comm. Programme, Conclusion No. 100
(LV), Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations,
para. (b) (2004).
62
Alice Farmer, pp.13.
63
Mike Sanderson, pp. 780.
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 un-willing to
avail himself of the protection of that country. . . .64
As we can infer from above article, the Convention limits the application of the term refugee
only to those fleeing from events occurring before 1 January 1951 (it shows chronological
requirement) and also enables States to limit the definition to those fleeing due to events
occurring in Europe.65 (this implies geographic restriction) Similar interpretation has been
employed by the Statue of the Office of the United Nations High Commission for Refugees
(UNHCR Statute) even though it is not limited to events occurring in Europe or before 1951. 66
On the other hand the 1967 Protocol to the Convention reaffirms the definition provided by the
Convention without the need to follow the chronological or geographic restrictions67 while these
limitations are left for State parties to the protocol.68
The non-refoulement concept as we have tried to define under the previous chapter, it is framed
in injunctive negative terms.69 The question that most likely be raised here is whether States
avoidance of returning the asylum seeker to the frontiers of territories where his life or freedom
would be threatened70 will amount to protection of a de facto right of admission.71
Among the 5 host States neighboring with Syria, only Turkey and Egypt are parties to the 1951
Refugee Convention or the 1967 Protocol to the Convention.72 On the other hand, out of the five
key reception States, only Turkey and Lebanon has already established domestic laws governing
both the definition and protection of the right of refugees and asylum seekers. 73 Even though
there are currently 147 States parties to the 1951 Refugee Convention and 146 to the 1967
Protocol, most States in the North Africa and Middle East region persistently continue to show a

64
1951 Refugee Convention, art. 1(A)(2).
65
1951 Refugee Convention, art. 1(B)(1).
66
Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428 (V), U.N. GAOR, 5th
Sess., Supp. No. 20, at 46 U.N. Doc. A/1775 (Dec. 14, 1950) [hereinafter UNHCR Statute] art. 6(A)(ii), (B).
67
1967 Protocol, art. 1(2).
68
1967 Protocol, art. 1(3).
69
Applicant M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCR 131, para.
39 (Austl.).
70
1951 Refugee Convention, art. 33.
71
James C. Hathaway, Refugees and Asylum, in FOUNDATIONS OF INTERNATIONAL MIGRATION LAW
177, 193 (Brian Opeskin, Richard Perruchoud & Jillyanne Redpath, eds., 2012).
72
UNHCR States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, as of Apr.
1, 2011, [hereinafter UNHCR States Parties] http://www.unhcr.org/protect/PROTECTION/3b73 b0d63.pdf.
73
Law on Foreigners; Law Regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country
(Law of Entry and Exit) Bulletin de Lgislation Libanaise (Journal Officiel), 1962, No. 28-1962, (Leb.) [hereinafter
Law Regulating the Entry and Stay of Foreigners] art. 26.
diminished interest to accede the treaties. It is mostly due to the enduring concern among Arab
nations with the issue of Palestinian refugees.74
Egypt, even though it is a party to both the Convention and the Protocol, it has not yet enacted
relevant domestic laws and institutions necessary in relation to protection of asylum seekers.75
Pursuant to a memorandum of understanding signed with the UNHCR in 1954 the Egypt
government has devolved refugee protection provisions, i.e. status determination and social
welfare, to the UNHCR.76
Unlike Egypt, Lebanon has promulgated domestic provisions governing asylum seekers in 1962.
However, the provisions are only limited to granting political asylum. 77 This undeniably hampers
the claims of Syrians fleeing from internal conflict and violence in their own nation. Moreover,
the Lebanese government maintains to regard asylum seekers as illegal immigrants while it
upheld its protection based on its own discretion.78
On the other hand, the new Turkish law of foreigners confirms with the 1967 Protocol while it
limits the responsibility of the State only to events occurring in Europe.79In addition, the
limitation emphasized on the new Turkish Law on Foreigners rules out those individuals fleeing
from Syrian conflict.80 However, the law has provided a tiny space for compromise to give
discretionary temporary protection for those individuals fleeing a situation of massive influx.81
The law also provides subsidiary protection for those who do not fall under the scope of
domestic refugee definition. This includes persons who are subject to the death penalty or
execution,82 torture or inhuman or degrading treatment or punishment83 or a serious threat to
his or her person by reason of indiscriminate violence84 upon return to their country of origin.

74
Jaber Suleiman, Trapped Refugees: the Case of Palestinians in Lebanon, in NO REFUGE: PALESTINIANS IN
LEBANON 11 (Refugee Studies Centre, Working Paper Series No. 64, 2010),
http://www.rsc.ox.ac.uk/publications/working-papers-folder_contents/RSCwork ingpaper64.pdf.
75
Global Report 2012: Egypt, UNHCR, http://www.refworld.org/docid /4e52379612.html (last visited Oct. 8,
2015).
76
Michael Kagan, We Live in a Country of UNHCR: The UN Surrogate State and Refu-gee Policy in the Middle
East, (UNHCR, New Issues in Refugee Research, Research Paper No. 201, Feb. 2011),
http://www.refworld.org/docid/4d8876db2.html.
77
Law Regulating the Entry and Stay of Foreigners, art. 26.
78
HUMAN RIGHTS WATCH, ROT HERE OR DIE THERE: BLEAK CHOICES FOR IRAQI REFUGEES IN
LEBANON 16 (2007), http://www.hrw.org/sites/default/files/reports /lebanon1207.pdf
79
1967 Protocol, art. 1(3); UNHCR States Parties, at 5; JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES
UNDER INTERNATIONAL LAW 97 (2005); Dilek Latif, Refugee Policy of the Turkish Republic, 33 TURKISH
YEARBOOK OF INTERNATIONAL RELATIONS 1 (2002).
80
Law on Foreigners, art. 61.
81
Law on Foreigners, art. 91(1).
82
Law on Foreigners, art. 63(1)(a).
The Turkish law has advanced further as compared to the rest neighboring countries of Syria
since it maintains non-refoulement principle the same as the 1951 Convention.
Accordingly, under article 4 it prohibit return to a place where he or she may be subject to
torture, inhuman or degrading punishment or treatment, or where his or her life or freedom may
be under threat.85 Although, Article 4 asserts to extend this assurance to all individuals who fall
under the scope of this Law, it fails to guarantee the whole package of the non-refoulement
provision found under the 1951 Convention and the 1967 Protocol to those individuals whose
life or freedom may be under threat on account of their race, religion, nationality, membership
of a particular social group or political opinion.The refugee definition in Article 61 of the law
itself is limited to those fleeing events occurring in Europe, but this limit is not revealed in
Article 4. This shows that article 4 by itself is inconsistent with other provisions of the law even
though it is hard to tell whether the law reflects a deliberate legislative scheme or is it just a
result of poor drafting.
Astonishingly this law has not yet been implemented by Turkish State. Thus, its practical effect
will remain under speculation. However, we should keep in mind that the implementation of the
law requires careful scrutiny particularly in respect to those seeking protection due to a serious
threat to their person by reason of indiscriminate violence.86 Article 4 should be implemented to
give protection from re-foulement to those individuals entitled to subsidiary protection within the
meaning of this article, since it will lay a foundation for the development of protection of persons
fleeing civil disorder and conflict in the Middle East.
2.6 The Nexus Criteria
The individuals fleeing to neighboring host States suffer from two key protection gap
1. Out of the five reception States only two States (Turkey and Egypt) are the parties to the
1951 Convention and the 1967 Protocol to the Convention.

83
Law on Foreigners, art. 63(1)(b); Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR] art. 3.
84
Law on Foreigners, art. 63(1)(c); Council Directive 2011/95/EU on Standards for the Qualification of Third-
Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for
Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (Recast), ,
2011 O.J. (L 337) art. 15; C-465/07, Elgafaji v. Staatssecretaris van Justitie, 2009 E.C.R. I-00921 [hereinafter EU
Qualification Directive].
85
Law on Foreigners, art. 4.
86
Law on Foreigners, art. 63(1)(c).
2. Even though, the States were parties to the instruments, it is uncertain as to whether the
Syrian case will fall under the scope of the refugee definition and fulfill the criteria under
article 1(A)2 of the 1951 Convention.87
Since this issue demands further discussion, we will see to see the recent approaches made by the
UNHCR on the requirements provided under the 1951 Convention and the situation in Syria.
Accordingly, as it is clearly stated under article 1(A)2 definition, the term well-founded fear of
persecution must be for reasons of race, religion, nationality, membership of a particular social
group or political opinion. Here, the persecution feared and one of the grounds specified under
article 1(A)2 must be causally related.88 This is commonly termed as the causal nexus.89
It is apparent that some Syrians have left their State due to a well-founded fear of persecution
for reasons of political opinion90 or religion,91 pursuant to article 1(A)2 of the 1951 Convention,
though many undeniably have fled or continue to flee due to their fear of generalized violence,
armed conflict and civil disorder unrelated to a Convention ground.
2.6.1 Can causal nexus be established in a situation of generalized violence?
There is no a specified base in the 1951 Convention that support to levy a higher or unbearable
burden on individuals who are seeking a refugee status in the context of armed conflict.92
However, this does not mean that, there is a criterion to show a differential impact on those
fleeing from situations of armed conflict, generalized violence or large scale of civil disorder.93

87
1951 Refugee Convention, refugee definition art. 1(A)(2).
88
James C. Hathaway, The Michigan Guidelines on Nexus to a Convention Ground, 23 MICHIGAN JOURNAL OF
INTERNATIONAL LAW (2002) [hereinafter Michigan Guidelines] pp. 211, 213.
89
Michigan Guidelines, pp. 219, para. 17.
90
Syria: Political Detainees Tortured, Killed, HUMAN RIGHTS WATCH (Oct. 3, 2013),
http://www.hrw.org/news/2013/10/03/syria-political-detainees-tortured-killed.
91
Patrick Cockburn, Persecution of the Christians: Syrian Minority Fear the End of Fighting More than War Itself,
THE INDEPENDENT (Dec. 17, 2012), http://www.independent.co.uk/news/world/middle-east/persecution-of-the-
christians-syrian-minority-fear-the-end-of-fighting-more-than-war-itself-8422977.html; Clarissa Ward, Syria's
Christians Fearing Religious Persecution, CBS NEWS (Feb. 21, 2013),
http://www.cbsnews.com/video/watch/?id=50141509n.
92
Vanessa Holzer, The 1951 Refugee Convention and the Protection of People Fleeing Armed Con-flict and Other
Situations of Violence, UNHCR Division of International Protection Legal and Protection Policy Research Series
16, PPLA/2012/05 (Sept. 2012) http://www.unhcr.org/504748069.pdf.
93
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, (2007)
pp. 133, http://www.refworld.org/docid/46deb05557.html; Michigan Guidelines, pp. 218; Michael Kagan and
William P. Johnson, Persecution in the Fog of War: The House of Lords' Decision in Adan, 23(2) MICHIGAN
JOURNAL OF INTERNATIONAL LAW (2002) pp. 247.
Even though, the Convention ground and cause of the persecution feared must have causal nexus
relationship; it does not need not be the sole or predominant cause of that persecution.94
The implication of the Convention ground is to be evaluated and determined subjectively in
reference to the standpoint of the persecutor instead of the refugee.95 It is the standing position of
the persecutor or acts of persecution that are pertinent for establishing the causal nexus and
decisive reasons that motivate certain conduct and situation.96 For the purpose of establishing the
causal nexus it is irrelevant whether the particular ground is true or has merely been perceived by
the refugee either implausible or mistaken.97
In nut shell, it must be understood that the yardsticks pertinent to the determination of the causal
nexus are general. Hence, neither specific nor special criteria will apply where the refugees fled
from a nation which exist widespread generalized violence or civil disorder. Nevertheless,
individuals seeking asylum originating from an area where this kind of situation experienced are
not automatically entitled for refugee status; rather they are granted protection as any asylum-
seeker if they meet the Convention requirements of article 1(A)2.
In the view of UNHCR
most Syrians seeking international protection are likely to fulfill the
requirements of the refugee definition contained in Article 1A(2) of the 1951
Convention relating to the Status of Refugees, since they will have a well-
founded fear of persecution linked to one of the Convention grounds. For
many civilians who have fled Syria, the nexus to a 1951 Convention ground

94
Michigan Guidelines, pp. 218, para. 13; Michelle Foster, Causation in Con-text: Interpreting the Nexus Clause in
the Refugee Convention, 23(2) MICHIGAN JOURNAL OF INTERNATIONAL LAW (2002) pp. 265.
95
Andreas Zimmermann and Claudia Mahler, Art. 1 A para. 2, in The 1951 Convention Relating to The Status of
Refugees and Its 1967 Protocol: A Commentary 281, pp. 426 (Andreas Zimmerman, ed., 2011); Attorney General v.
Ward [1993] 2 S.C.R. 689, 747 (Can.).
96
Zimmerman and Mahler, pp. 427.
97
GUY GOODWIN-GILL AND JANE MCADAM, THE REFUGEE IN INTERNATIONAL LAW 87 (2007);
U.N. High Commr for Refugees, Guidelines on International Protection No.1: Gender-Related Persecution within
the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, pp.
2223, U.N. Doc. HCR/GIP/02/01 (May 7, 2002); U.N. High Commr for Refugees, Guidelines on International
Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967
Protocol relating to the Status of Refugees, pp. 31, U.N. Doc. HCR/GIP/04/06 (Apr. 28. 2004); U.N. High Commr
for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of
the 1951 Convention and/or 1967 Protocol relating to the Status of Refu-gees, pp. 4647, U.N. Doc.
HCR/GIP/09/08 (Sept. 22, 2009).
will lie in the direct or indirect, real or perceived association with one of the
parties to the conflict.98
If we strictly construe the terms of the Convention grounds, it will amount to admission of the
sweeping of unreliable imputation of specific grounds to large sections of a community. Thus,
the matter is not a question of whether they serve to encourage the conduct of the persecutors;
not whether such imputations are correct or even plausible.
As UNHCR elucidate in reference to Syrian Situation,
Parties to the conflict reportedly employ broad interpretations of whom they
may consider as being associated with the other party, including based on an
individuals family links, religious or ethnic background or mere presence in
an area considered as being pro- or anti-Government. This is illustrated
by the methods and tactics of warfare that have been documented in Syria and
include, inter alia, the systematic besieging, bombarding, raiding, pillaging
and destruction of residences and other civilian infrastructure in whole
neighborhoods, purportedly for reason of real or perceived support to the other
conflict party.99
This analysis provided by the UNHCR is based on both plausible and accurate grounds of the
Convention in light of Syrian Conflict. Whatever the case may be, there is no a yet settled case
law in relation to their refugee status. Hence, any conclusions as to the accurate appliance of the
causal nexus in this circumstance must remain speculative.

CHAPTER THREEE
III. THE PRINCIPLE OF NON-REFOULEMENT IN GENERAL INTERNATIONAL
HUMAN RIGHTS LAW CUSTOMARY INTERNATIONAL LAW AND
INTERNATIONAL HUMANITARIAN LAW
3.1 INTERNATIONAL HUMAN RIGHTS LAW
Basically, non-refoulement principle has been broadly categorized under the sphere of
international human right law since the notion itself has been addressed in many international

98
U.N. High Commr for Refugees, International Protection Considerations with Regard to People Fleeing the
Syrian Arab Republic, Update II, pp. 14 (Oct. 22, 2013), www.refworld.org/ docid/5265184f4.html. [hereinafter
International Protection Considerations]
99
International Protection Considerations Syria, No. 56, pp. 8.
and regional human right instruments. Accordingly, we will see some instruments that can
explain the concept in enhanced depth.
Unlike what we have grasped on protections of non-refoulement principle under article 33 of the
1951 Convention , article 7 of the International Covenant on Civil and Political Rights (ICCPR),
article 3 of European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) and article 3 of Convention Against Torture (CAT), are not subject to
exception. Under this chapter we will try to assess the provisions provided in these international
human right instruments and whenever it is necessary we will hold comparative analysis on the
provisions with the elements stipulated within the Refugee Convention.100

3.1.1 The European Convention for the Protection of Human Rights and Fundamental
Freedoms
The ECHR, drafted by the Council of Europe Member States, came into force in 1950. 101 The
Convention has been ratified by 47 European States. The judicial system of the European Court
of Human Rights (ECtHR), under the Convention, is supervised by the Committee of Ministers.
The Court judgments has the influential effect on other jurisdictions; even though, its residing
power is limited to Europe region represented by the Council of Europe states.
Many scholars and human rights experts agree that Article 3 of the European Convention
provides more protection for individuals on refoulement than Article 33 of the 1951
Convention.102 Article 3 reads,
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.103
The thing that made us compare and contrast Article 3 with Article 33 of the 1951
Refugee Convention is not only because there are no exceptions in this Article, but the
inherent protections under Article 3 apply to everyone, even to those who doesnt meet
the 1951 Refugee Convention criteria and fall under the refugee definition.

100
Other instruments, which also have non-refoulement provisions, include, the American Convention on Human
Rights, (1979) 1144 UNTS 123, OASTS 36, Article 22.8 and the International Convention for the Protection of All
Persons from Enforced Disappearance, UN doc. A/HRC/RES/2006/1, Article 17.
101
European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as
the European Convention), Rome, 4 Nov. 1950, [hereinafter The European Convention]
102
H. Lambert, Protection Against Refoulement from Europe: Human Rights Law Comes to the Rescue (1999) 48
ICLQ 515-44.
103
The European Convention, Art.3.
Does the Applicant have to show the nexus criteria?
Under the European System, European Court requires high standard of proof for a non-
refoulement claim to be admissible. Though, the applicant is not obliged to show a nexus
between the threat of torture and grounds for refugee protection under the Refugee Convention.
During 1965, the Parliamentary Assembly of the Council of Europe (PACE) recognized Article 3
of European Convention, by prohibiting inhuman treatment, binds contracting parties not to
return refugees to a country where their life or freedom would be threatened.104
The ECtHR in 1978 on its first case (Ireland v. the United Kingdom) upheld the absolute
character of Article 3 stating, the Convention prohibits in absolute terms torture and inhuman or
degrading treatment or punishment, irrespective of the victims conduct.105 The Court
elaborated, Article 3 makes no provision for exception there can be no derogation there from
even in the event of a public emergency threatening the life of the nation.106
A later land mark case, (Soering v. the United Kingdom) which deals with the extradition of
Soering, a German national, to the United States, where he faces death penalty as a punishment
for capital crimes. The ECtHR held that it would be contrary to the spirit and intention the law
transferring Soering to a territory where he risked experiencing cruel and inhuman treatment
which is clearly in violation of Article 3.107 In another case, the 1996 (Chahal v. United Kingdom),
the European Court upheld the same ruling stating that Article 3 of the Convention has a broader
scope of scope application than Article 33 of the 1951 Refugee Convention.108
3.1.2 The International Covenant on Civil and Political Rights
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.109
As the provision emphasizes, article 7 is broader in its scope than Article 3 of CAT. The term
cruel, inhuman and degrading treatment has broader definition than torture since we can find
the later with in the former context. Moreover, despite the requirement for the highest standard

104
Recommendation 434 Concerning the granting of the right of asylum to European refugees Assembly Debate
on 1st Oct. 1965 (15th Sitting) (see Doc. 1986, report of the Committee on Population and Refugees).
105
Ireland v. United Kingdom (1978) ECtHR, Series A, No. 25, para. 64.
106
Ibid, para. 65.
107
Soering v. United Kingdom, 7 July 1989, Series A, No. 161, 11 EHRR 439, para. 88.
108
Chahal v. United Kingdom, 15 Nov. 1996, Reports 1996-V, para. 80; see also, Saadi v. Italy 37201/06, S. Ct.
H.R. (Grand Chamber), 28 Feb. 2008.
109
International Covenant on Civil and Political Rights, (1976) 999 UNTS 171 (hereinafter the ICCPR). Art. 7.
of proof, the Human Right Committee (HRC) offers more preferential treatment that can
consider spare rights that the Committee for Convention Against Torture (CCAT) cannot; that
includes the right to family life, the right to an effective legal remedy and the right to freedom of
movement. In the case (Kindler v. Canada) the HRC recommended that if a State party
extradites a person within its jurisdiction in circumstances such that as a result there is a real
risk that his or her rights under the Covenant will be violated in another jurisdiction, the State
party itself may be in violation of the Covenant.110
In nut shell, the HRC, construed Article 7 in a way that recognizes the non-refoulement principle
and throw-outs the possibility that state parties could depict individuals to the risk of torture or
cruel, inhuman or degrading treatment or punishment upon return to another country by way of
their extradition, expulsion or refoulement.111 Subsequently, we will see the scope provided
under the CAT.
3.1.3 The UN Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
The 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment
or Treatment (CAT), which entered into force in June 1987 and has 158 state parties. Article 3 of
CAT reads
No State Party shall expel, return (refouler ) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.112
It is apparent that, it is hard to find clear boundary between torture and ill-treatment. However,
the CCAT in its General Comment no. 2 fails to broaden the non-derogability of ill-treatment by
linking it to the principle of non-refoulement while the prohibition of ill-treatment can likewise
be non-derogable under the convention to make its protection effective.113
Like European Convention, CAT also extends protections for non-refoulement to anyone
irrespective of the previous acts of the applicant. Relatively, the standard of proof is less on CAT
than the ECHR or the ICCPR; here the applicant is expected to show that the risk of torture goes
beyond mere suspicion or fear; even though, it doesnt has to convene the test of high

110
Kindler v. Canada , Communication No.470/1991, at para. 13.
111
General Comment 20, HRI/GEN/1/Rev.1 (1994), 30, para. 9.
112
Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, 189 UNTS 150, Art. 3.
113
General Comment no. 2, CAT/C/GC/2/CRP.1/Rev.4, 23 Nov. 2007, para. 3.
probability.114 In addition, it widens protections by prohibiting the eviction of an individual to
any country from which he/she may be expelled to another third State where he/she may
confront torture.115
In the case (Mutombo v. Switzerland) the CCAT in its decision described the danger of torture
involves the foreseeable and necessary consequence that a real risk will occur that the person in
question will be subjected to torture as a risk of deportation. The present circumstances, his
return to Zaire would have the foreseeable and necessary consequence of exposing him to a real
risk of being detained and tortured.116 In the above General Comment no. 2, we can deduce that
there are promising signs that the CCAT will entertain complaints from individuals at threat of
being subjected to cruel, inhuman or degrading treatment or punishment in the event of
refoulement.117
3.2 INTERNATIONAL CUSTOMARY LAW
The basic instrument that we use in order to identify whether a certain principle or act has got the
status of customary international law is by referring the state practice in the upper hand. In same
manner, the non-refoulement principle is commonly regarded as international customary law;
that implies all states, whether signatories to the 1951 Conventions and the human rights
instruments including ECHR, the OAU Refugee Convention, the American Convention on
Human Rights118 and the Banjul Charter,119 have a duty not to expel, extradite or return any
individual to a State where his/her life or safety would be seriously jeopardized.120 It will persist
to bind countries even after they sign a convention that imitates the customary international
norm. This can be inferred from Vienna Convention on the Law of Treaties that reads

114
Committee Against Torture, General Comment I (Implementation to art. 3 of the Convention in the context of art.
22: art. 3), 21 Nov. 1997, para. 2.
115
S. Marks and A. Clapham, The idea that people must not be deported or extradited to countries in which they face
a serious risk of torture has been seen as implicit in the prohibition of torture, International Human Rights Lexicon
(Oxford; New York 2005), pp. 373.
116
Mutombo v. Switzerland, Communication No. 13/1993, 27 Apr. 1994.
117
C. Ingelse, The UN Committee Against Torture: An Assessment (The Hague/London/Boston 2001), pp. 307.
118
American Convention on Human Rights, O.A. S. Treaty Series No. 36, 1144 U.N.T.S. 123, OEA/Ser.L/V/II.23,
doc. 21 rev. 2 (July 18, 1978).
119
Organization of African Unity, African [Banjul] Charter on Human and Peoples' Rights, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct. 21, 1986).
120
Extraditions, Expulsions, Deportations in, Anti-terrorism Measures, Security and Human Rights Developments
in Europe, Central Asia and North America in the Aftermath of September 11 (The International Helsinki
Federation, 2003)
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming
binding upon a third State as a customary rule of international law, recognized as
such.121
During 1982, before the coming of CAT, many States had already reached an agreement that
prohibit torture which constituted a canon of customary international law.122 We can argue that
the principle of non-refoulement is an essential component of the customary prohibition on
torture and cruel, inhuman and degrading treatment or punishment.123 The principle is
incorporated in different international Human Rights documents which by itself show evidence
to persistent State practice and opinio juris that lays a foundation for the emergence of new
customary rule.
In 1977 the UN Executive Committee (ExComm) on the International Protection of Refugees
noted that . . . the fundamental humanitarian principle of non-refoulement has found expression
in various international instruments adopted at the universal and regional levels and is generally
accepted by States.124 Here, unavoidably the two norms (Customary and Conventional) will be
directly related, while conventional norms serve as the clear possible evidence of the opinio juris
of States.125
Arguably, some also say that the principle has got the status of preemptory norm. Similarly in
1982, ExComm noted that the non-refoulement principle
. . . was progressively acquiring the character of a preemptory rule of international law.126
Likewise, the non-refoulement protection incorporated within customary rule is relatively wider
than the protection found in Article 33 of the 1951 Convention. It is apparent that both non-
refoulement and the right to protection against torture have now attained the status of preemptory
norms of public international law which is not subject to derogation.127
Under the International Customary Law category we will try to analyze the status of non-
refoulement principle by referring to the non binding instruments like declarations issued by

121
Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331, art. 38.
122
UN General Assemblys Res 39/118 14 Dec 1984
123
E. Lauterpacht and D. Bethlehem, pp.140.
124
U.N. ExComm Conclusion No. 6 (XXVIII) Non-Refoulement (28th Sess.) (1977) para. (a).
125
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (7th ed. 2008) pp. 8.
126
U.N. ExComm Conclusion No. 25 (XXXIII) General (33d Sess.) (1982). para. (b).
127
U.N. ExComm Conclusion No. 79 (XLVII) General (47th Sess.) (1996), para. (i); Jean Allain, The Ius Cogens
Nature of Non-Refoulement 13(4) INTERNATIONAL JOURNAL OF REFUGEE LAW 533 (2001).
bestowed authoritative organs who has the power to interpret emerging international customary
rule.
3.2.1 UN General Assembly Resolutions and Declarations
The non-refoulement principle has been persistently emphasized in different UN General
Assembly Resolutions. The recognition of the principles essential normative quality has also
been enhanced on various UNHCR Executive Committee conclusions and Human Rights
Committee analysis. Article 3 of the 1967 UN Declaration on Territorial Asylum significantly
prohibits refoulement, even though it is with exceptions.128 Between the years 1983-1988 similar
wording was used in resolutions adopted by the UN.
In 1982, the UN provided a duty on States and Governments to work in cooperation with the
High Commissioner by signing and fully applying the relevant international and regional Human
Right and Humanitarian instruments and meticulously observing the principles of asylum and
non-refoulement.129Later in 2001, at the 50th anniversary of the 1951 e Convention, Sanremo
Declaration on the Principle of Non-refoulement was issued by the International Institute of
Humanitarian Law (IIHL), in collaboration with the United Nations High Commissioner for
Refugees (UNHCR).130
When do we say a certain principle has got of customary international status?
Many scholars mention the Nicaragua case as a land mark precedence, which states that for a
certain rule to emerge in customary international law there need not be perfect compliance to that
rule from all member states of the international community.131 However, there is an exception to
that if, for example, a certain State violates the rule and brings justification or explanation for the
act, this is perceived as reinforcing the existence of the rule, rather than the denial of the
existence of the rule. That being said, the fact that States have found it necessary to provide such
explanations or justifications can reasonably be regarded as an implicit confirmation of their
acceptance of the principle.132

128
1967 United Nations Declaration on Territorial Asylum, Article 3
129
General Assembly Resolution 37/95, issued on 18 December 1982.
130
Sanremo Declaration on the Principle of Non-refoulement (2001): The International Institute of Humanitarian
Law, along with the United Nations High Commissioner for Refugees, issued this statement on the occasion of the
50th anniversary of the 1951 Refugee Convention.
131
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America ), Merits, ICJ, Judgment of 27 June 1986, [1986] ICJ Rep 14.
132
UNHCR Refugee Policy and Practice, The Principle of Non-Refoulement as a Norm of Customary International
Law , document to be found at: < http://www.unhcr.org/publ/RSDLEGAL/437b6db64.html >.
Similarly, the Sanremo Declaration, while taking account of the debates and uncertainties that
arise in the application of non-refoulement principle in international law, asserts that the essence
of the principle, as encapsulated in Article 33(1) of the 1951 Refugee Convention, can be
regarded at present as a reflection of general international law .
The UNHCR in its Refugee Policy and Practice report has taken reference to this statement from
the Nicaragua case:
In order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of States should, in general, be consistent with such rules. If a State acts
in a way prima facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself, then whether
or not the States conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule.133
We dont see States disregarding their obligation not to refuel any individual to the risk of
torture which indicates the normative character the non-refoulement principle. Also, non member
States to the 1951 Convention and the 1967 Protocol have made promises to the UNHCR that
they recognize and respect the principle of non-refoulement.
3.3 INTERNATIONAL HUMANITARIAN LAW
Under international humanitarian law, which is remote from conventional human rights aspects
we have seen earlier, we will see the third134 and fourth135 Geneva Conventions in depth. These
Conventions provide clear prohibition of refoulement. Furthermore, the four conventions,
including the first two, are now broadly acknowledged by States to be regarded in their totality
as customary international rule.136 For example, the five key receiving States of Syrian refugees
are parties to all four Geneva Conventions.

The close reading of article 12 of the Third Geneva Convention which applies to prisoners of war
and article 45 of the Fourth Geneva Convention which applies to State party nationals who found
themselves under the control of the party to the conflict. Even though, the two articles are only

133
ICJ Reports 1986, 88, para. 186
134
Geneva Convention Relative to the Treatment of Prisoners of War, Oct. 21, 1950, 75 U.N.T.S. 135 [hereinafter
Third Geneva Convention].
135
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Oct. 21, 1950, 75 U.N.T.S.
287 [hereinafter Fourth Geneva Convention].
136
David Turns, The Law of Armed Conflict (International Humanitarian Law), in INTER-NATIONAL LAW 814,
816 (Malcom D. Evans ed., 3d ed. 2010); Partial Award on Prisoners of War, Eritrea's Claim (Eri. v. Eth.) 42
I.L.M. 1056, 1083 (Eri.-Eth. Claims Comm'n 2003).
applicable for situations of internationalized armed conflict, they require concrete close
observation because of the ongoing outlook of military intervention against the Assad regime by
dominant Western Countries.137

Unlike, the general asylum and human rights law, the protections under these two Conventions
broadens to all circumstances in which the transferee power is not willing and able to apply the
terms of the conventions as a whole.

In no circumstances shall a protected person be transferred to a country where he


or she may have reason to fear persecution for his or her political opinions or
religious beliefs . . . .138

The provision in Fourth Geneva Convention refers that, the protections extends to situations in
which the protected person might have reason to fear persecution on political or religious
grounds. Accordingly, the last provision serves to import a condition similar to the nexus
requirement we have seen on previous sections.

Article 3 of the Third and Fourth Geneva Conventions applies to the non international armed
conflict which current Syrian situation is believed to be reached the level civil war.139 Even
though, we dont find a clear protection for prohibition of non-refoulement, it stipulated
protection against ill-treatment.

Under article 6 and 7 of the ICCPR there is similar interpretation and scope of protection with
the two Geneva Conventions while the general States duties are the similar on both article 2 of
the ICCPR and the two Geneva Conventions. In addition States have an obligation to respect and
insure the right guaranteed under those Conventions.140 Both the ICCPR and the two Geneva
Conventions provided non-derogable clause under article 3 for the duty to respect and guarantee

137
Robert Winnett and Peter Dominiczak, Pressure on Cameron for New Vote on Syria Strikes, THE TELEGRAPH
(Sept. 1, 2013), http://www.telegraph.co.uk/news/worldnews /middleeast/syria/10279620/Pressure-on-Cameron-for-
new-vote-on-Syria-strikes.html.
138
Fourth Geneva Convention, art. 45.
139
Syrian Arab Republic, in 2012 ANNUAL REPORT 443 (ICRC, 2012).
140
U.N. Human Rights Committee General Comment 31, para. 12
against torture and ill-treatment.141 This duty will extend to all party States involved in the Syrian
conflict.

3.4 RESPONSE FROM THE INTERNATIONAL COMMUNITY


3.4.1 Regional Refugee & Resilience Plan 2015-2016 (RRP)
The Regional Refugee and Resilience Plan (3RP) has been developed alongside the Strategic
Response Plan for Syria, and reflects the principles set out in the Comprehensive Regional
Strategic Framework developed in May 2014.
The 3RP brings together the plans developed under the leadership of national authorities -
namely, the Arab Republic of Egypt, the Republic of Iraq, the Hashemite Kingdom of Jordan,
the Lebanese Republic, and the Republic of Turkey to ensure protection, humanitarian assistance
and strengthen resilience. The 3RP integrates and is aligned with existing and emerging national
plans, including the Jordan Response Plan 2015 to the Syria Crisis, the Lebanon Crisis Response
Plan2, the Iraq Strategic Response Plan (SRP), and country responses in Turkey and Egypt.142
The 3RP has two main strategic objectives:
i. The 3RP Refugee protection and humanitarian component will address the protection and
assistance needs of refugees living in camps, in settlements and in local communities in
all sectors, as well as the most vulnerable members of impacted communities. It will
strengthen community-based protection through identifying and responding with quick-
impact support for communal services in affected communities.
ii. The 3RP Resilience/Stabilization-based development component will address the
resilience and stabilization needs of impacted and vulnerable communities in all sectors;
build the capacities of national and sub-national service delivery systems; strengthen the
ability of governments to lead the crisis response; and provide the strategic, technical
and policy support to advance national responses.143

All activities are designed in support of the priorities of governments with the response strategy
adapted to the respective country context. Furthermore, the 3RP seeks to address the adverse

141
Cordula Droege, Transfers of Detainees: Legal Framework, Non-Refoulement and Con-temporary Challenges,
90 INTERNATIONAL REVIEW OF THE RED CROSS 669, 675 (2008).
142
Regional Refugee & Resilience Plan 2015-2016, In Response to the Syria Crisis, Regional Strategic Overview,
pp. 7.
143
Id, pp. 8.
socio-economic effects that the Syria crisis has on communities in countries neighboring Syria.
Thus, the 3RP adopts an innovative, integrated approach that combines protection and
humanitarian relief efforts with more focus on supporting national plans and development
interventions to build resilience among individuals, communities and different institutions across
sectors.144
Refugees from Syria continue to need international protection, with access and admission to
safety, and protection from refoulement cornerstones of the protection response. Continuous
registration, verification and renewal of documentation are critical tools to determine those who
are in need of protection and assistance; to maintain accurate records of numbers, locations and
profiles of refugees; to ensure refugees have documents essential to facilitate their eventual
return; and to enable access by refugees to humanitarian aid and services in host countries.145
Hence, the international community is encouraged to share the burden with countries hosting
Syrian refugees in the region by offering opportunities for resettlement or other forms of
admission for Syrian refugees. These interventions are critical for the most vulnerable refugees
who are in urgent need of safety and protection.146

3.5 THE RIGHT TO ASYLUM AND THE NON-REFOULEMENT PRINCIPLE UNDER


EU LAW
All party States of the EU and Council of Europe are also parties to the 1951 Geneva
Convention, except which Turkey applies the Convention only in relation to refugees from
Europe. Turkey maintains a geographic reservation under Article 1(B) of the Convention, which
restricts its obligations to people uprooted by events in Europe.

Article 78 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the EU
must provide a policy for asylum, subsidiary protection and temporary protection, ensuring
compliance with the principle of non-refoulement. this policy must be in accordance with [the
1951 Geneva Convention and its Protocol] and other relevant treaties, such as the ECHR, the
UN Convention on the Rights of the Child (UNCRC), the UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), ICCPR, ICESCR. The

144
Ibid.
145
Id, pp. 18.
146
Id, pp. 13.
EU asylum acquis measures have been adopted under this policy, including the Dublin
Regulation (Regulation (EU) No. 604/2013), the Qualification Directive (2011/95/EU), the
Asylum Procedures Directive (2013/32/EU) and the Reception Conditions Directive
(2013/33/EU). All these instruments have been amended.147

The Qualification Directive, as revised in 2011,148 brought into EU law a set of common
standards for the qualification of persons as refugees or those in need of international protection.
This includes the rights and duties of that protection, a key element of which is non-refoulement
under Article 33 of the 1951 Geneva Convention.

The EU Charter under article 18 assures the right to asylum, which conforms to the non-
refoulement principle while article 19 on the other hand stipulates that no one may be removed,
expelled or extradited to a state where they would be subjected to the death penalty, torture or
other inhuman or degrading treatment or punishment. We have relevant case law under article
19(2) of the Charter which was entertained by the ECtHR regarding article 3 of the ECHR.149

Can a generalized violence be a ground for the protection of individuals from refoulement
under the EU law?

In most scenarios, a situation of general violence in a State is not a ground for violation of
Article 3 of the ECHR. However, when violence is of a sufficient intensity, the individual is not
expected to prove that he/she would face the worst event in the country he/she came from. In
some cases the individual may be required to show a both personal risk factors and the risk of
general violence. Here, the main question for the Court should take into consideration is whether
there is a foreseeable and real risk of ill-treatment in the home State in violation of Article 3. We
can see some cases the ECtHR has given decision in relation to generalized violence.

In (NA. v. the United Kingdom) case,150 the ECtHR held that the intensity of generalized violence
in Sri Lanka was not sufficient enough to ban all returns to the State; though, by taking together
with the personal factors specific to the applicant, the court concluded that his return would

147
Handbook on European law relating to asylum, borders and immigration, Council of Europe, 2014, available on
the FRA, http://fra.europa.eu/en/theme/asylum-migration-borders.
148
Directive 2011/95/EU, OJ 2011 L 337/9.
149
See explanations relating to the EU Charter of Fundamental Rights (2007/C 303/02); ECtHR, Ahmed v. Austria,
No. 25964/94, 17 December 1996; ECtHR, Soering v. the United Kingdom, No. 14038/88, 7 July 1989.
150
ECtHR, NA. v. the United Kingdom, No. 25904/07, 17 July 2008, paras. 114-117, 147
violate Article 3 of the ECHR. The ECtHR, for the first time, accepted the possibility that a
situation of generalized violence could, in itself, mean that all returns were prohibited.

Earlier in 2001 the ECtHR has entertained another similar case which can be related with the
Syrian refugee crisis. In (Sufi and Elmi v. the United Kingdom) case,151 the ECtHR found that the
indiscriminate violence in Mogadishu in Somalia was of a sufficient intensity to pose a real risk
to the life or person of any civilian there. In assessing the level of violence, the Court looked at
the following non-exhaustive criteria:

i. whether the parties to the conflict were either employing methods and tactics of warfare
that increased the risk of civilian casualties or directly targeted civilians;
ii. whether the use of such methods and/or tactics was widespread among the parties to the
conflict;
iii. whether the fighting was localised or widespread; and
iv. the number of civilians killed, injured and displaced as a result of the fighting.

The situation of general violence in Mogadishu was sufficiently intense to enable the ECtHR to
conclude that any returnee would be at a real risk of ill-treatment contrary to Article 3 solely on
account of his or her presence in the country, unless it could be demonstrated that he or she was
sufficiently well connected to powerful actors in the city to enable him or her to obtain
protection.

The other basic point we need to keep in mind is, under both EU and ECHR law, collective
expulsions in general are prohibited. As per article 19 of the EU Charter of Fundamental
Rights152 collective expulsions are prohibited. Collective expulsion referred as any measure that
coerces individuals to leave a territory or State as a group, and where this decision has not been
based on a reasonable and objective examination of each individuals particular case.153

151
ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, paras. 241- 250, 293.
For a more recent assessment of the situation in Somalia; see ECtHR, K.A.B. v. Sweden, No. 886/11, 5 September
2013.
152
See explanations relating to the EU Charter of Fundamental Rights (2007/C 303/02)
153
ECtHR, Collective Expulsions, Factsheet, June 2012, available at: www.echr. coe.int under
Press/Factsheets/Expulsion
CHAPTER FOUR

IV. CONCLUSION AND RECOMMENDATION

a. CONCLUSION
Non-refoulement is the back bone principle of the international legal system for refugee
protection, and forms an essential component of the 1951 Convention. Ever since the principle
was stipulated in the 1951 Convention, the principle has become an established customary
international law, and is regarded as a basic norm. Lately, by emphasizing on the reached
consensus of states, many scholars stick to the argument that the principle of non-refoulement
has emerged as a new jus cogens norm. In this regard, since the treaty embraces non-refoulement
as one of the foundations of refugee law, the 1951 Convention should be read consistently with
the principle.
Throughout history, failure to acknowledge conflicts that lead to the creation of mass numbers of
refugees has also resulted in severe consequences that were previously unforeseen by states.
When we see the Syrian experience, only some of the key neighboring host States are parties to
the 1951 Convention or its 1967 Protocol and still neither of them have a operating domestic
asylum regime yet. Turkey in this regard plays a prominent role by passing an asylum law even
though it is left without implementation. Thus, due to these legal impediments the status of many
Syrian refugees and their protection will remain under speculation.
As we have tried to observe, there is no a specified base in the 1951 Convention that support to
levy a higher or unbearable burden on individuals who are seeking a refugee status in the context
of armed conflict. However, this does not mean that, there is a criterion to show a differential
impact on those fleeing from situations of armed conflict, generalized violence or large scale of
civil disorder.
Accordingly, by looking relevant international human right and humanitarian laws, which deal
with the non-refoulement principle, we will reach at a certain end to give guarantee for those
who are fleeing to neighboring host States. Accordingly we will resemble to the CAT (article 3)
and ICCPR (articles 6 & 7) Conventions altogether in order to include the Syrian case under the
clause of protection non-refoulement against ill-treatment which has got the status of jus cogens.
On the upper hand, all four Geneva Conventions, including the 3 rd and 4th, has got the status
international customary rule which bind all parties and even non signatory States those seeking
to intervene in the Syrian conflict. As it has been widely reported, the Iranian military force is
now actively engaged in the Syrian conflict. Accordingly, due to its military participation in
Syria, Iran is bound by the non-refoulement duties in relation to Syrian citizens under its control
as emphasized in Article 3 of both Geneva Conventions.
Mass influx, on the other hand, escorts realistic anxiety for States, together with consumption of
resources, national security issues, and concerns surrounding domestic infrastructure. Moreover,
refugees from countries engaged in internal conflict can often raise security concerns for states.
Many domestic populations simply do not want to open their borders to such asylum-seekers. In
addition, mass movements of refugees may strain international relationships between states,
especially if one state becomes increasingly burdened by mass migrations. In this regard, State
practice and international law have advanced to restrict the use of the national security exception
to non-refoulement principle in mass influx situations.
In relation to situation of generalized violence, relatively Europe provides best protection among
other regional refugee conventions. In this regard, the ECtHRs decisions show that, generalized
violence can be a ground for violation article 3 of the ECHR when its of sufficient intensity. In
such scenarios, the individual is not even expected to prove that he/she would face the worst
treatment in the country he/she came from. In assessing the level of violence, the Court looked at
the following four non-exhaustive criteria: first, whether the parties to the conflict were either
employing methods and tactics of warfare that increased the risk of civilian casualties or directly
targeted civilians; second, whether the use of such methods and/or tactics was widespread among
the parties to the conflict; third, whether the fighting was localized or widespread; and fourth, the
number of civilians killed, injured and displaced as a result of the fighting.

It is now crystal clear: the refugee problem is everyones trauma that is knocking the doors of
every State. Now, the only thing we need is an international cooperation among States to work in
synergy. When the international community admits the suggestion that burden shared action
ultimately benefits all States in long run, States will most likely be more willing to accommodate
refugees and refugees will be more likely to secure their right against refoulement.

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