Sordid tale of the Rohingya refugees & the “disturbed” principle of Non-refoulment

By 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

Courtesy: Greg Constantine
Courtesy: Greg Constantine

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 nonrefoulement (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]

Courtesy: Saiful Huq Omi
Courtesy: Saiful Huq Omi

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.

www.scmp.co
Courtesy: http://www.scmp.com

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.

Courtesy: Alex Ellgee/The Irrawaddy
Courtesy: Alex Ellgee/The Irrawaddy

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]

Courtesy: European Commission DG ECHO / Flickr
Courtesy:
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.)

_____________________________________________

[1] The Guardian, Editorial, The Rohingya refugee crisis: cruel and stupid, <http//www.guardian.com/commentisfree/2015/may/15/guardian-view-rohingya-refugee-crisis-cruel-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&gt; 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&gt; 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&gt; 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&gt; 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&gt;

[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&gt;

[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&gt; 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&gt; 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&gt; accessed 19 July 2015.

[37] Jessica Rodger, op cit 33.

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