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Non-refoulement () is a fundamental principle of international law anchored in the 1951 Convention Relating to the Status of Refugees that forbids a country from deportation ("") any person to any country in which their "life or freedom would be threatened" on account of "race, religion, nationality, membership of a particular social group or political opinion". The only exception to non-refoulement according to Convention Relating to the Status of Refugees are "reasonable grounds" of "danger to the security of the country" or "danger to the community of that country". Unlike political asylum, which applies only to those who can prove a well-grounded fear of political persecution, Universal Declaration of Human Rights, Article 14 non-refoulement refers to the generic deportation of people, including refugees into war zones and other disaster locales.
Non-refoulement is generally seen as customary international law, where it applies even to states that are not parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol. It is debatable whether non-refoulement is a peremptory norm (jus cogens) of international law, where non-refoulement must always be applied without any adjustment for any purpose or under any circumstances (derogation). (2025). 9789462651135 ISBN 9789462651135 The debate over jus cogens nature of non-refoulement was rekindled following the September 11, 2001, terror attacks in the United States as well as other terrorist attacks in Europe.
The principle of non-refoulement is important because of its role in an international collective memory of the failure of nations during World War II to provide a haven to refugees fleeing certain genocide at the hands of Nazi Germany. Following the war, the need for international checks on state sovereignty over refugees became apparent to the international community.
During the war, several states had forcibly returned or denied admission to German and French Jews fleeing the Holocaust. In 1939, the ocean liner sailed from Germany with over 900 Jewish passengers who were fleeing Nazi persecution. The ship sailed for Cuba, where the passengers expected to find refuge. However, Cuba admitted only twenty-eight passengers and refused to admit the rest. The ship then set sail for Florida in the hopes of finding refuge in the United States. But the U.S. government, and later also Canada, refused to allow the ship to dock and refused to accept any passengers. With conditions on the ship deteriorating and seemingly nowhere else to go, the ship returned to Europe, where approximately thirty percent of those passengers were later murdered in the Holocaust. Switzerland refused entry to nearly 20,000 French Jews who sought asylum there after the Nazi takeover of France. The Swiss argued the "boat is full" with respect to refugees during the War, and they were not obligated under existing law to accept French Jews for resettlement. As a result the Jews were forced to return to France, where most were killed.
After World War II, under Operation Keelhaul, millions of refugees and prisoners from former Russia and the contemporary Soviet Union were forcibly returned despite evidence they would face Gulag from the Soviet government. The action nowadays is considered a human rights violation and a war crime for its indiscriminate targeting of civilians, many of whom had never been Soviet citizens, fleeing Russia near the end of World War II.
Non-refoulement presents an inherent conflict with state sovereignty, as it infringes on a state's right to exercise control over its own borders and those who reside within them. In legal proceedings immediately following World War II, non-refoulement was viewed as a distinct right, which could be abridged under certain circumstances, such as those spelled out in Article 33, Section 2 of the 1951 Convention.
In the 1960s, the European Commission on Human Rights recognized non-refoulement as a subsidiary of prohibitions on torture. As the ban on torture is jus cogens, this linkage rendered the prohibition on refoulement absolute and challenged the legality of refoulement for the purposes of state security. Through court cases (see Soering v. United Kingdom and Chahal v. United Kingdom) and interpretations of various international treaties in the 1980s, the European Commission on Human Rights shifted preference away from preserving state sovereignty and towards protecting persons who might be refouled. This interpretation permitted no abridgments of non-refoulement protections, even if the state was concerned a refugee may be a terrorist or pose other immediate threats to the state.
Today, the principle of non-refoulement from countries that are signatories to the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Convention Relating to the Status of Refugees, or the 1984 Convention Against Torture depends on the interpretation of the Article 33 of the 1951 Convention.
One of the grey areas of law that is most hotly debated within signatory circles is the interpretation of Article 33 of the 1951 Convention. Interdiction of potential refugee transporting vessels on the high seas has been a common practice by the US government in particular, raising the question of whether Article 33 requires a refugee to be within a country or simply within the power of a country to trigger the right against refoulement. (2025). 9789291421015, Inter-Parliamentary Union, Office of the United Nations High Commissioner for Refugees. . ISBN 9789291421015
A prohibition of rejection at the border would imply a right of entry for any asylum seeker, which explains the reluctance for some states to endorse non-rejection at the border.
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Tanzania's actions during the Rwandan genocide in 1994 have been alleged to have violated the non-refoulement principle. During the height of the crisis, when the refugee flows rose to the level of a "mass exodus", the Tanzanian government closed its borders to a group of more than 50,000 Rwandan refugees fleeing genocidal violence. In 1996, before Rwanda had reached an appropriate level of stability, around 500,000 refugees were returned to Rwanda from Zaire.Barber, Ben (1997). "Feeding Refugees, or War?" Foreign Affairs, July/August 1997. Retrieved from http://www.foreignaffairs.com/articles/53220/ben-barber/feeding-refugees-or-war.
The government has been accused by the UNHCR, as well as more than 50 Australian legal scholars, of violating the principle of non-refoulement by returning 41 Tamil and Singhalese refugees to the Sri Lankan Navy in June or July 2014, as part of Operation Sovereign Borders.
In 2014, the Australian Parliament passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). That Act provides that "for the purposes of removal from Australia of an unlawful non-citizen, Australia's non-refoulement obligations are irrelevant".Committee against Torture, Sixth periodic report submitted by Australia under article 19 of the Convention pursuant to the optional reporting procedure, due in 2018, UN Doc CAT/C/AUS/6 (28 March 2019).
In 2017, Dina Ali Lasloom was forced back to Saudi Arabia with the cooperation of the government of the Philippines.
In 2018 Matteo Salvini (Italy's former interior minister) allegedly breached its obligation of non-refoulement by refusing to rescue 93 migrants fleeing Libya and consequently organising a "privatised push-back", that is sending back migrants using merchant ships as proxy; which in this case resulted in the migrants being returned to the port of Misurata in Libya, where they were beaten, tortured and in some cases killed.
In 2019, South Korea deported two North Korean defectors back to North Korea, on claims that they had committed murder. The move was condemned by human rights activists as the two would likely face execution upon their return. China routinely deports North Korean refugees who remain on its soil under a 1986 agreement with the North Korean government.
In 2021, Malaysia deported 1,086 Myanmar nationals, despite a court order temporarily halting the repatriation amid concerns the group could be at risk if they were returned to military-ruled Myanmar.
In 2021, the Supreme Court of India in Mohammad Salimullah v. Union of India, allowed the deportation of Rohingya Muslim refugees back to Myanmar.
In 2022, the UK government proposed the Rwanda asylum plan, which aims to Deportation migrants who enter the UK illegally to a "safe" third country, Rwanda. The policy has faced legal challenges and European Court of Human Rights (ECtHR) ruled in June 2022 in N.S.K. v. the United Kingdom (28774/22) that the UK government's plan violates the European Convention on Human Rights (ECHR) because once in Rwanda, migrants "would not have access to fair and efficient procedures for the determination of refugee status," thus violating their rights. Additionally, the court found that "persons relocated to Rwanda may be at risk of detention and treatment not following international standards should they express dissatisfaction or protest at their conditions after arrival." Once in Rwanda, migrants might not be able to seek legal recourse as Rwanda operates outside the jurisdiction of the ECtHR, and there is an "absence of any legally enforceable mechanism for the applicant's return to the United Kingdom in the event of a successful merits challenge before the domestic courts." In November 2023, the UK Supreme Court ruled that the policy is illegal under UK domestic law and international obligations because the policy continues to violate non-refoulement. JUDGMENT R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) United Kingdom Supreme Court 2023 WLR 4433, 2023 1 WLR 4433, 2023 UKSC 42
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