M Jashim Ali Chowdhury*
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
– Article 3; European Convention on Human Rights
“Get them back.”
– Tony Blair in Youseff v Home Office [EWHC (QB) 1884] at 15
Two States and a Stateless People
The origin of Rohingya’s is in
dispute, artificially though. In Burmese military perception, they are
virtually all immigrants from Bangladesh or what later became
Bangladesh. Rohingya peoples on the other hand claim that they
are the descendants of Muslims who came to this part of Burma long ago,
perhaps of Persian and Arab traders, and are not Bengalis.[1] The cruel reality however is that Rohingyas
are now living in limbo, even though they lived in Burma’s Rakhine
State for generations. The Burma Citizenship Law of 1982 has denied
their right to a nationality, and thereby removed their freedom of
movement, access to education and services.[2] In addition, they are subject to frequent forced labor, arbitrary taxation and sexual violence and land confiscations.[3]
Mass influx of Rohingyas in Bangladesh
The first flow of Rohingya
refugees amounting to more than 2,00,000 was in 1978 following Operation
‘Nagamin’ (‘Dragon King’) launched by the Myanmar army. During 1991-92
another 2,50,000 fled Bangladesh to escape persecution. Recognized as prima facie
refugees by an executive order, they were initially sheltered in some
20 government-administered refugee camps. Bangladesh and Myanmar then
signed a bilateral agreement of repatriation. Myanmar agreed to accept
only those Rohingyas who could establish a so-called bona fide residence
there. Though the international community initially rejected Burma’s
terms, a repatriation program followed, in which almost all of the
250,000 were repatriated to Myanmar by 2000.[4]
Today, some 28,000 refugees remain in two government camps. The
unofficial account, however, indicates that an estimated 3,00,000/- Rohingyas
are residing in various villages and towns outside the camps, many of
whom came in 1991–1992, were repatriated and have returned back.[5]
Latest in the sequel of mass Rohingya
influx was in 2012. A state of emergency was declared in Rakhaine state
of Myanmar on June 2012 after deadly clashes ensured between the
Buddhist and the Muslim communities.[6] As hundreds of Rohingyas
sought refuge in Bangladesh, the government outright rejected any
obligation under any international treaty to give them shelter. The
government’s stance was criticized by many on the ground that
international human rights laws in general, and customary principle of non-refoulment in particular, cast an obligation on Bangladesh. In turning the Rohingya’s back to the violence, the government of Bangladesh was in violation of its international obligation.[7]
The research question
Given the criticism of Bangladesh’s
border closure decision, this excercise would investigate the actual
status of the principle of non-refoulment under contemporary
discourse of international refugee law, human rights law and
humanitarian law in general and international customary law in
particular. Is the principle of non-refoulment a jus cogens which could impose an absolute erga omnes burden
on Bangladesh? Or is it a mere principle of customary law accepted as
such by the general practice of states for the non-observance of which
states may have some defenses available under general international law?
Or is it something even less than that – a mere rule of equity, justice
and good conscience and humanity, for example? Before delving deep into
the inquiry, I would briefly restate the particular situation
surrounding the Rohingya refugees and the significantly
important concerns that Bangladesh, as a recipient state, has. This is
important, because it will be seen in later parts of this discussion
that asylum seekers were returned from the border of many other
countries on many other occasions for concerns similar to those.
Dilemmas facing Bangladesh
Admittedly, Bangladesh is an
overpopulated country compared to its territorial size – about 160
million people squeezed in an area of 147, 570 square kilometers. With
around 3,00,000/- Rohingyas already in Bangladesh, the
international community simply cannot and should not expect, let alone
force, her to continue to receive populace from a stiff neighbor.
Second, things become further complex when the attitude of
non-cooperation on the part of Myanmar government and its constant
refusal even to recognize the Rohingya refugees as such are taken into account.[8] While respecting the customary principle of non-refoulment
would require Bangladesh to offer temporary protection, in terms of
continuing to feed a large number of people and provide means of their
subsistence, it is a must that the protection remains “temporary” in
fact. Reality however, shows exactly the opposite. Millions of Rohingyas forcefully sent in 1991 are still here (!) to jeopardize the economic, social and cultural and security interest of Bangladesh.[9]
Third, as an additional jest over the deliberate forgetfulness of
international community’s obligations, the United Nations High
Commissioner for Refugees (UNHCR) has recently come out with a
suggestion of local integration.[10] Absent any substantial, or even a little, international burden sharing,[11]
no “customary” norm, how sanctified it may seem, can impose an
unreasonable burden on a small and scantily resourced economy like
Bangladesh. Custom itself being rooted in reasonableness must not yield
unreasonable burden on its intended subject. Fourth, while the
officially endorsed persecution in Myanmar clearly aims at “sending them
back” to Bangladesh, an idealistic argument for Bangladesh’s “absolute
burden”(!) of non-refoulment and temporary protection would
encourage renewed persecution across the border. Now the situation being
peculiar and concerns being legitimate, Bangladesh’s proposed customary
law burden, if there be any, must be weighed with reason and
judiciousness.
Non-refoulment in Refugee Law context
Within the framework of the 1951 Convention and its 1967 Protocol, the principle of non–refoulement (Article 33) constitutes an essential, reservation free[12]
and non-derogable component of international refugee protection. The
principle is reflected in 1969 OAU Convention Governing Specific Aspects
of Refugee Problems in Africa, 1969 American Convention on Human
Rights, 1984 Cartagena Declaration on Refugees and 1967 UN Declaration
on Territorial Asylum.[13]
Article 33(1) of the Refugee Convention
provides that “[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.” As the text of article 33 suggests, it applies extra
territorially and the protection seeker need not actually enter the
host state territory. It is enough that he is already outside his
country of origin, reach the frontier of the host state and unable or
unwilling to take protection of the country of origin. However, as an
injunction framed in negative terms, the non-refoulement provisions of the 1951 Convention does not provide a right of entry per se. There is argument of course that a way to avoid returning will frequently amount to a de facto right of admission.[14]
While this definition of non-refoulement articulates
an extremely important guarantee, it suffers from two basic
shortcomings. First, Article 33 is binding only on signatories to the
Refugee Convention and Protocol. Second, on the face of British and
French opposition, the protection was made subject to a national
security exception in Article 33(2).[15]
Neither Burma nor Bangladesh has signed the Refugee Convention or
Refugee Protocol and as is seen above, Bangladesh has a very genuine
concern of Rohingyas posing the threat of inland and cross border terrorism. Bangladehs’s obligation of non refoulment,
if there is any, must therefore be establlished within either of the
frameworks of international human rights, humanitarian and customary
law.
Non refoulment in Human Rights Law context
Whereas refugee law, as codified, is
narrow in scope, the tenets of human rights law are broadly drafted and
very aspirational. Human rights norms of the UN Charter and UDHR, and
rules of the CAT (Art. 3) and ICCPR (Art. 6 and 7) and regional
extradition treaties[16]
apply to all persons, including refugees, seekers of temporary asylum,
and displaced persons. It is, however, not clear as to whether the
concrete rules of CAT and ICCPR are meant to be dealing with mass influx
refugees as opposed to the cases of individual asylum seekers. Framed
essentially in an individualistic tune, the CAT and ICCPR provisions
primarily concern individuals, or at best a sizable group of
individuals, rather than a group of thousands and millions. This
apparently crude assertion is further refined by an almost unanimous
understanding that binding human rights treaties like ICCPR and CAT were
not primarily meant to endorse any of the second generation economic
rights and the third generation group rights. We see an apparent support
for the claim in General Comments 6 and 7 of the Human Rights Committee
designated to administer the ICCPR. While pressing for individual’s
absolute right to life, the Committee appears helpless when it urges all
the state parties to make their best efforts to “avoid” situations of
war that takes away the life of thousands and millions! If the CAT and
ICCPR’s “absolute” right to life and freedom from torture fail to
illegalize and prohibit war on the first place, how could they give rise
to an absolute right of asylum and protection for millions of war
affected people? Isn’t the opening of one’s border and feeding millions
the same kind of exercise of sovereignty as one’s decision to go for a
war?
Since dealing with mass influx of
refugees involve substantial economic, logistic, political,
administrative and policy concerns, en masse refugees are
distinguished from individual migrants, refugees or asylum seekers
(central focus of the human rights laws) and “convention refugees”
(central focus of the refugee conventions).[17]
They are coined separately as “humanitarian refugees” and the
obligation towards them is not considered an individual obligation of
the host state. It is rather an obligation of the community of nations
in general. I will elaborate more on the customary and collective aspect
of the obligation towards the “humanitarian refugees” later in this
discussion.
For now it is important to
note that the Western states have started showing a strong desire to
slide away from their non refoulment obligation even in the
cases of individual asylum seekers. Partly driven by their apparent
hysteria towards the asylum seekers and economic migrants from the third
world and partly by their alliance with the so called “war on
terrorism”, five EU governments led by the United Kingdom, intervened in
the European Court of Human Rights (Ramzy v. the Netherlands)
to argue that the right of an individual to be free from torture may be
balanced against the national security interests of the State.[18] Failing there,[19]
these countries started using a controversial technique of secretly
negotiated “diplomatic assurances of humane treatment” to circumvent the
non-refoulement principle.[20]
In this context, some have suggested the human rights bodies and
scholars to recognize the security consequences of current
non-refoulement rule.[21] Very recently the Canadian Supreme Court in Suresh v. Canada (Minister of Citizenship & Immigration)
adopted such a balancing test to upheld the forced deportation of a
LTTE member to Sri Lanka considering the possible security threat he
might pose to Canada.[22]
While I don’t claim that the established jurisprudence of European
Court of Human Rights has been dislodged by this balancing doctrine, a
subtle attack on the “absolute” principle of non-refoulment in
individual cases is obviously there. Passage of laws like Migration
Reform Act 1992 and Border Protection Legislation Amendment Act 1999 in
Australia also has undercut the hold of non-refoulment
principle effectively. Immigration policies of the EU and U.S. also have
taken more hard-line view of national security exception against the non-refoulement principle. While there is always an affordable option of respecting non-refoulment, not extraditing the individual or group of individuals and prosecuting them domestically for their alleged terrorist links,[23] the sheer dislike the western states show towards non-refoulment is really disturbing. What does this tell about the “absoluteness” of non-refoulement in mass influx context? Nothing encouraging, of course.
Non-refoulment in Humanitarian Law context
As the Rohingyas in Bangladesh
are properly characterized as humanitarian refugees, or seekers of
temporary asylum, this analysis will consider the legal protections
applicable to such refugees as well. Humanitarian agreements, such as
the Geneva Conventions of 1949 and the Protocols Additional to the
Geneva Conventions primarily shield civilian non-combatants who have
been displaced by armed conflict. Civilian non-combatants have a legal
right to humanitarian assistance, as well as a humanitarian right of non-refoulement and its corresponding guarantee of temporary asylum.
Article 12 of the Third Geneva Convention deals with non-refoulment
of prisoners of war whose life may be threatened in the state of
deportation. Article 45 of the Fourth Geneva Convention offers similar
principle for the Internationally Protected Persons who are basically
the personnel involved in providing humanitarian assistance and medical
aid or in observing actual compliance with international law of war.
Except in the common article 3 situation (which involve a non
international armed conflict), the protection must be considered in
context of an international armed conflict between states.[24]
Absent any international armed conflict in Bangladesh or Myanmar, there
is serious doubt as to whether the occasional tension, violence and
strife in Myanmar would qualify even as non international armed
conflict. The humanitarian law context therefore offers a very little
help in securing a humanitarian law right of non-refoulment for the Rohingyas. The only den of hope for “absolute” non-refoulment advocates then is the norms of customary international law.
Non-refoulment in Customary Law context
The principle of non-refoulement i.e.,
the prohibition on return to torture, cruel or inhuman or degrading
treatment or punishment enunciated in the Refugee Convention is
popularly regarded as part of customary international law. Standing
alone, however, the principle did not exist at international law prior
to 1930s.[25]
During the first half of this century, the idea was mentioned
occasionally by states in agreements or statutes, or was evident in the
practice of some states. It was first expressed at international law in
the 1933 Convention relating to the Status of Refugees which was
ratified by very few states.[26]
In contrast, the 1951 Convention received wider audiences and parties.
As part of the development of human rights law, an allied concept known
as ‘complementary protection’ emerged. Complementary protection is the
generic name which results from international legal obligations not to
return a person to serious ill-treatment such as torture, cruel, inhuman
and degrading treatment or punishment. Complementary protection finds
support in article 3 of the CAT and Articles 6 and 7 of the ICCPR, among
other instruments. Counting mainly on the international human rights
instruments dealing with many other issues in many other contexts and
other hortatory instruments like non binding resolutions, declarations,
statement of principles and policy statements, Non refoulment has been claimed to gain the status of a jus cogens.[27] There is no denying that non-refoulement principle has been transplanted into a good number of international treaties. Although this indicates the importance of non-refoulement
internationally, its expression in so many different ways and in so
many different contexts, also serves to undermine its effectiveness.
States usually does not lack good words when they talk to the
international community. The question is whether mere utterance of good
words and promises are to be matched by good deeds also. Most
importantly, due to the reasons elaborated above, any customary norm
based mainly on individual human rights discourse would be somewhat less
relevant in situation of mass refugee influx.
A binding customary obligation in relation to en masse refugees, therefore, would require proof of actual state practice in this particular area.[28]
When matters comes to the actual state practice in relation to specific
cases of mass influx of refugees, it has been the historical truism
that states act out of generosity sometimes but out of its own political
and strategic interests very often. It is, therefore, highly
“idealistic” to claim that those good instances can constitute an opinio juris (observance with a sense of legal obligation[29]) for establishing a jus cogens
or even customary norm of international law. As the examples below
would show, at least at the present stage of its development, the
principle of non-refoulment in en masse refugee
contexts could at best be taken as a general principle of equity and
good conscience usually adhered to by the community of states.
States long have resisted embracing the full import of non-refoulement
protections where extreme consequences result. Refusing admission to
individuals fleeing severe mistreatment at home was not infrequent
during the World War II period. Switzerland, for example, refused entry
to nearly 20,000 French Jews who sought asylum there after the Nazi
takeover of France. The Swiss argued that the boat was already packed
with respect to war time refugees and they were not obligated under
existing law to accept French Jews for resettlement. The Jews were
forced to return to France, where most were killed. In 1939, a ship with
hundreds of Germans seeking refuge was turned away summarily by the
United States because of a policy not to admit anyone into the country
that lacked a valid visa for admission. The ship returned to Europe, and
predictably many of the passengers ended up dead. Wartime and post-war
transfers by the U.S. and Britain to the Soviet Union of prisoners of
war resulted in the death or severe mistreatment of over two million
people. Allied power did this with no reservation for prisoners who had
fears of mistreatment after transfer. [30]
After the WW II, the principle of non-refoulement suffered
a serious setback in the context of the 1981 US Haitian interdiction
program. The U.S. coast guard patrolling the seas between Haiti and the
U.S. was instructed to intercept boats carrying illegal migrants and
send them back. While President Reagan’s executive order recognized the non-refoulement obligation
subject to a screening process, President Bush’s 1992 order removed the
screening requirement altogether and anyone intercepted could be
returned without regard to their status as potential refugees. During
those days, the U.S. also claimed that the principle of non-refoulement could not apply extra-territorially, a position later accepted by the US Supreme Court in Sale v Haitian Centers Council.[31]
Similarly, on the face of a potential
exodus of Iraqi Kurds in 1991 to Turkey, Turkey indicated its intention
to close border. The situation was, however, handled by joint actions of
the British, U.S. and French in setting up and maintaining the safety
zone in Northern Iraq.[32]
During the height of the civil turmoil in Rwanda in 1994 Zaire (Congo),
Burundi and Tanzania initially responded reasonably well to accept the
fleeing refugees. Problem arose when the flow continued and the issue of
repatriation was raised. In 1995, the Tanzanian government closed its
borders to a group of more than 50,000 Rwandan refugees who were fleeing
renewed violence. The government stated that it was simply unable to
accept more due to resultant threat to the environment, regional harmony
and national security. Around 5,00,000 more refugees were forcefully
returned to Rwanda from Zaire and Tanzania in 1996 as well. After
exerting some initial pressures, the international community maintained
silence. The 1989 civil war of Liberia also has instances of non refoulment
violation. Two shiploads of refugees – the Bulk Challenge and the
Zolotitsa, attempted to dock at numerous West African ports, including
Ghana, Togo and Ivory Coast. All the states were unwilling to accept
them. Ghana eventually succumbed to international pressure and allowed
the Bulk Challenge ashore. The Zolotitsa, however, was forced to return
to Liberia.
A European example of non compliance with non refoulment is
the ethnic cleansing campaign and resulting NATO airstrikes in Kosovo
in 1999. Macedonia bore the brunt of this mass exodus substantially.
With 2,50,000 refugees already there and yet more flooding over the
borders, Macedonian government did the same was the Tanzanian government
did in 1995. Throughout May 1999 the Macedonia/Kosovo border was
repeatedly closed, leaving thousands of Kosovans stranded in Kosovo.[33]
European Commission DG ECHO / Flickr
Another recent example of circumstances
which may make it naïve to expect unconditional and indefinite
generosities is the Syrian refugee crisis. Flooded with Syrian refugees,
Egypt, Iraq, Jordan and Turkey begun to actively limit the number of
Syrians permitted to seek refuge on their territory by imposing quotas
on those allowed to cross the border from Syria each day, refusing entry
to particular classes altogether or by closing the border altogether.[34]
The 2013 Turkish law on Foreigners and International Protection
introduced a clearly discretionary provision for the temporary
protection of individuals in the context of mass influx. It asserted
that Turkish authority reserved absolute right to decide whether or not
to offer protection.[35] The most recent denial of any erga omnes burden
to show humanity was by the states like Thailand, Malaysia, Indonesia
and Australia who outright refused to grant asylum to the Rohingya
and Bangladeshi economic migrants floating in the sea. These countries
did this even though there was no circumstance similar to
Bangladesh-Myanmar dilemma. Bangladesh at least never refused to
recognize the nationality of the Bangladeshi economic migrants and did
not show any lack of commitment in bringing them back if they were given
temporary shelter in those countries. Due to international persuasion,
Thailand, Indonesia and Malaysia ultimately agreed to offer limited
humanitarian assistance to the boat people but Australia was totally
unmoved. Thailand and Malaysia’s concern was especially in relation to
the Rohingyas. Thailand officially declared them a threat to
and a burden for Thailand. Similarly, the Malaysian Prime Minister
called for the repulsion of the Myanmar’s Muslim people and they were to
be pushed back if they attempted to land on any Southeast Asian shores
in search of asylum.[36]
A Conclusion with a Caveat
The conclusion that I seek draw from the discussion above should not mean an outright denial of the non refoulment
principle as a customary principle of international law. What I wanted
to do is to distinguish between the cases of individuals or groups of
limited numbers of individuals – who may be the war time refugees,
climate change refugees or mere economic migrants – and the cases of en massee refugees
flooding the border on a mass exodus situation. While I share the full
compassion to the miseries of those human beings, I seek to draw
attention to the practical problems faced by the international community
in this area. While the humanitarian argument of accepting refugees
regardless of their situation would always be there, we cannot but look
at the practical problems facing the host states themselves. Wholesale
assertion of a customary duty in every case may be an easy option but
not a logical one. A sound analysis of international law rather suggests
that individual cases must be seen differently from cases of mass
influx. The softness and collectiveness of the obligation in such cases
must be affirmed. As regards the misfortune of the Rohingya refugees,
I do go with the age old saying, “Prevention is better than cure.”
Pressing hard on Myanmar’s preventive human rights obligation makes more
sense than pressing on Bangladesh’s curative refugee law obligations,
which is not an effective cure either. That is why Jessica Rodger
suggests a paradigm change in international refugee law – “It is the
belief of many that the international community needs to shift focus
from dealing with the refugees themselves, to dealing with the causes of
refugee flows.”[37]
* (The Author is an Assistant Professor in the Department of Law at University of Chittagong, Bangladesh. He may be reached at jashim.chy@gmail.com.
This paper is a shortened version of the paper presented by the author
on July 22, 2015 before the Academic Saloon of Xiamen Academy’s 10th International Law Summer Program, Fujian, China.)
References
___________________________________________
[1] The Guardian, Editorial, The Rohingya refugee crisis: cruel and stupid,
accessed July 17, 2015.
[2] Chris Lewa, The Plight of Burma’s Stateless, Rohingya Muslims, <http://www.twf.org/News/Y2003/0630-Burma.html> accessed 20 July 2015.
[3] Peter Ras, Caught Between a Crocodile and a Snake, The Burma Centre Netherland, 2009 <http://www.independentworldreport.com/2009/09/caught-between-a-crocodile-and-a-snake> accessed 18 July 2015
[4] Carl Grundy-Warr and Elaine Wong, Sanctuary Under a Plastic Sheet –The Unresolved Problem of Rohingya Refugees, IBRU Boundary and Security Bulletin, Autumn 1997, pp 79-91 at p 86
[5] Samuel Cheung, Migration Control and the Solutions Impasse in South and Southeast Asia: Implications from the Rohingya Experience, Journal of Refugee Studies Vol. 25, No. 1, Oxford University Press, pp 50-70 at p 52
[6] Kira O’Sullivan, The Plight of Refugee: The Uncertain Future of Rohingya Refugees, 22 June 2013 <http://www.fairobserver.com/article/uncertain-future-rohingya-refugees> accessed 20 July 2015.
[7] Mostafa Mahmud Naser, Safe refuge for Rohingyas: Obligation under International Law, The Daily Star, Law and Our Rights, Dhaka, 23 June 2012.
[8] Engage proactively setting aside Rohingya issue, Myanmar activist tells Bangladesh <http://bdnews24.com/neighbours/2015/04/14/ engage-proactively-setting-aside-rohingya-issue-myanmar-activist-tells-bangladesh> accessed 18 July, 2015
[9] Barrister Harun Ur Rashid, Why are Rohingyas being refused entry into Bangladesh? The Daily Star, Op Ed, 20 June, 2012 <http://archive.thedailystar.net/newDesign/news-details.php?nid=238943> accessed 21 July 2015.
[10] Dr Abdullah Faruque, Plight of Rohingya Refugees in Bangladesh: Legal Aspects of the Problem, The Chittagong University Journal of Law <culaw.ac.bd/files/plight_of_ruhingyas.pdf> accessed 20 July, 2015.
[11] Since 2006, only 171 self reliant and well accomplished Rohingya
families (749 individuals) have been resettled in third countries. Most
went to Canada (278), followed by the UK (166), Australia (126),
Ireland (82), New Zealand (50), the USA (24), Sweden (19), and Norway
(4). Visit: Bangladesh: Self-reliant refugees win resettlement <http://www.speroforum.com/a/29618/Bangladesh—Selfreliantrefugees-win-resettlement>
[12]
Article 42(1) of the 1951 Convention and Article VII(1) of the 1967
Protocol lists the Article 33 as one of the provisions of the 1951
Convention to which no reservations are permitted.
[13] Hassan Faruk Al Imran, Md. Nannu Mian, The Rohingya Refugees in Bangladesh: A Vulnerable Group in Law and Policy, Journal of Studies in Social Sciences, Volume 8, Number 2, 2014, pp 226-253 at p 231-2
[14] James C. Hathaway, Refugees and Asylum
in Foundations of International Migration Law (Brian Opeskin, Richard
Perruchoud & Jillyanne Redpath, eds., 2012) at p 177, 193.
[15] Paul Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed, With A Commentary (Julian Weis ed., 1995) at p 328
[16]
The 1957 European Convention on Extradition (Article 3(2)) and the 1981
Inter-American Convention on Extradition (Article 4(5)).
[17] Thomas K. Ragland, Burma’s Rohingyas in Crisis: Protection of “Humanitarian” Refugees under International Law, 14 B.C. Third World L.J. (1994), pp 301-36 at p 317
[18] Vijay Padmanabhan, To Transfer or Not to Transfer: Identifying and Protecting Human Rights Interests in Non-Refoulment, 80 Fordham L.Rev. 73 (2011). <http://ir.lawnet.fordham.edu/flr/vol80/iss1/3>
[19] The jurisprudence of the European Court of Human Rights as established in Soering v. UK, Chahal v. UK and Ramzy v. UK confirm that the principle of non-refoulement
to torture or cruel, inhuman or degrading treatment or punishment was
absolute and allowed for no balancing with competing State concerns,
even when these related to national security.
[20]
Diplomatic Assurances are devices whereby the repatriating state seeks
to secure a diplomatic commitment from the receiving state that the
person repatriated will be treated well and will be tried only for the
offense for which he was sought.
[21] Vijay Padmanabhan, op cit 18, at p 107
[22] [2002] 1 S.C.R. 3 (Canada). at para 58
[23] Rene Bruine and Kees Wouters, Terrorism and Non-derogability of Non refoulment, International Journal of refugee Law, Vol 15, No 1 (2003), Oxford University Press, pp 5-29.
[24] Mike Sanderson, Syrian Crisis and the Principle of Non-refoulment, International Law Studies, Volume 89, U.S. Naval War College (2013), pp 776-801 at p 797
[25] Robert L. Newmark, Non-Refoulement run afoul: The Questionable Legality of Extraterritorial Repatriation Programs 71 Wash U.L.Q. (1993) 833 at p 837
[26] Ian Brownlie Principles of Public International Law (5th ed, Oxford University Press, New York, 1998) at p 5.
[27] Mike Sanderson, op cit 24 at p 794.
[28]
For a critic of the frequent assertion of “instant custom” doctrine,
See: Some Considerations regarding “instant” international Customary
Law, Fifty years later, Indian Journal of International Law, June 2015
[29]
I seriously doubt whether India would have opened its border to our
refugees in 1971 had they been told that they were bound to do so under
international law and had they believed that those people would not be
back in Bangladesh and remain there indefinitely.
[30] Vijay Padmanabhan, op cit 18, at p 82
[31] Sale v Haitian Centers Council, Inc (1993) 509 US
[32] Guy S. Goodwin-Gill, Overview of History and Current Scope of Non-refoulement, and Current Attacks on the Principle, REDRESS, London, 2006.
[33] BBC, ‘Amnesty attacks Macedonia over Kosovo refugees’ 19 May 1999 quoted in Jessica Rodger, Defining the Parameters of the Non-refoulment Principle, LL.M Research Paper, Victoria University of Wellington, 2001. <www.refugee.org.nz/JessicaR.htm> accessed 20 July, 2015.
[34] Human Rights Watch, Egypt: Do Not Return Asylum Seekers to Syria, July 10, 2013, <http://www.hrw.org/news/2013/07/10/egypt-do-not-return-asylum-seekers-syria> accessed 18 July, 2015.
[35] Law on Foreigners and International Protection, 2013, No. 6458 (Turk); an unofficial English translation of this law prepared by UNHCR is available at <http://www.refworld.org/docid/5167fbb20.html> accessed 18 July, 2015.
[36] UNHCR, Refugees Daily: Refugees Global Press Review, 27/02/2009, <http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=463ef21123&id=49a78c228> accessed 19 July 2015.
[37] Jessica Rodger, op cit 33.
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