Essay On Non Refoulement

When refugees leave behind their countries to seek refuge on foreign lands, it is clear that states should have the primary duties to admit those refugees while protecting their lives and dignities. However, on the international plane, such is not the case; states have a right, rather than a duty to grant asylum to these refugees. As such, states do not have the legal obligation to grant asylum to refugees, but states are bound by the principle of ‘non refoulement’. In essence, ‘non refoulement’ is a concept which prohibits states from returning a refugee or asylum seeker to any country where he/she is likely to face persecution, torture or cruel, inhuman or degrading treatment or punishment. This principle emanates from the commitment of the

International custom is defined in Article 38 of the Statute of the International Court of Justice, as “evidence of a general practice accepted as law”. As such, two elements are necessary for the formation of customary international law, and these are

(1) Consistent state practice

(2) Opinio juris: the belief that the said action was carried out of a legal obligation.

UNHCR has declared that ‘both consistent practice combined with a recognition on the part of states that the principle has a normative character’ and ‘the fact that the principle has been incorporated in international treaties adopted at the universal and regional levels to which a very large number of states have now become parties’ demonstrate that the principle of non refoulement has reached the level of international customary