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Non-Refoulement: The Search for a Consistent Interpretation of Article 33

PDF · Ellen F. D’Angelo · Jul-11-2012 · 42 VAND. J. TRANSNAT'L L. 279 (2009)

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention).  The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement.  The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or 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.  According to the definition in Article 33, non-refoulement is applicable only where there is an affirmative classification of refugee status as articulated in Article 1.  The 1951 Convention and its 1967 Protocol are currently the guiding instruments on refugee law, and the 1951 Convention provides a minimum foundation for the rights of refugees.

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention).  The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement.  The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or 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.  According to the definition in Article 33, non-refoulement is applicable only where there is an affirmative classification of refugee status as articulated in Article 1.  The 1951 Convention and its 1967 Protocol are currently the guiding instruments on refugee law, and the 1951 Convention provides a minimum foundation for the rights of refugees.

States have adopted a variety of positions for implementation, which fall on a continuum based on their interpretation of non-refoulement.  In addition, states have formulated legal mechanisms that coincide with their beliefs as to the extent of domestic obligations under Article 33.  Because of these varied interpretations, the implementation of non-refoulement is inconsistent among states and the destiny of many refugees depends upon whether they reach the border of a state that interprets Article 33 more favorably than its neighbor.  This Note argues for the necessity of a consistent international approach to the implementation of non-refoulement and analyzes the differing interpretations of Article 33 through judicial decisions to determine the state’s legal, rather than political, position on the duty of non-refoulement.




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