Non-Refoulement of Refugees Under Customary International Law
Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom,
as evidence of a general practice accepted as law”, as one of the sources of law which it applies
when deciding disputes in accordance with international law.28 For a rule to become part of
customary international law, two elements are required: consistent State practice and opinio
juris, that is, the understanding held by States that the practice at issue is obligatory due to the
existence of a rule requiring it. UNHCR is of the view that the prohibition of refoulement of
refugees, as enshrined in Article 33 of the 1951 Convention and complemented by non-
refoulement obligations under international human rights law, satisfies these criteria and
constitutes a rule of customary international law.30 As such, it is binding on all States,
including those which have not yet become party to the 1951 Convention and/or its 1967
Protocol.31 In this regard, UNHCR notes, inter alia, the practice of non-signatory States
hosting large numbers of refugees, often in mass influx situations.32 Moreover, exercising
its supervisory function,33 UNHCR has closely followed the practice of Governments in
relation to the application of the principle of non-refoulement, both by States Party to the
1951 Convention and/or 1967 Protocol and by States which have not adhered to either
instrument. In UNHCR’s experience, States have overwhelmingly indicated that they
accept the principle of non-refoulement as binding, as demonstrated, inter alia, in
numerous instances where States have responded to UNHCR’s representations by
providing explanations or justifications of cases of actual or intended refoulement, thus
implicitly confirming their acceptance of the principle.34
B. Non-Refoulement Obligations Under International Human Rights Law
International Human Rights Treaties. Non-refoulement obligations complementing the
obligations under the 1951 Convention, which preceded the major human rights treaties, have
also been established under International Human Rights Law. More specifically, States are
bound not to transfer any individual to another country if this would result in exposing him or
her to serious human rights violations, notably arbitrary deprivation of life37, or torture or other
cruel, inhuman or degrading treatment or punishment.38 18. An explicit non-refoulement
provision is contained in Article 3 of the 1984 Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,39 which prohibits the removal
of a person to a country where there are substantial grounds for believing that he or she would
be in danger of being subjected to torture. 19. Obligations under the 1966 Covenant on Civil
and Political Rights,40 as interpreted by the Human Rights Committee, also encompass
the obligation not to extradite, deport, expel or otherwise remove a person from their
territory, where there are substantial grounds for believing that there is a real risk of
irreparable harm, such as that contemplated by Articles 6 [right to life] and 7 [right to be
free from torture or other cruel, inhuman or degrading treatment or punishment] of the
Covenant, either in the country to which removal is to be effected or in any country to
which the person may subsequently be removed.41 The prohibition of refoulement to a risk
of serious human rights violations, particularly torture and other forms of ill-treatment, is also
firmly established under regional human rights treaties.42
Footnote 34 As noted by the International Court of Justice in Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, 1986 ICJ Reports, page 14,
para. 186, “[i]n order to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent which such rules, and that instances
of State conduct inconsistent with a given rule should generally have been treated as breaches
of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions
or justifications contained within the rule itself, then whether or not the State’s conduct is in
fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken
the rule.” 35
2. Human Rights-Based Non-Refoulement Obligations Under Customary International Law
21. The prohibition of torture is also part of customary international law, which has attained
the rank of a peremptory norm of international law, or jus cogens.48 It includes, as a
fundamental and inherent component, the prohibition of refoulement to a risk of torture,
and thus imposes an absolute ban on any form of forcible return to a danger of torture
which is binding on all States, including those which have not become party to the
relevant instruments. The prohibition of arbitrary deprivation of life, which also includes
an inherent obligation not to send any person to a country where there is a real risk that
he or she may be exposed to such treatment, also forms part of customary international
law.49 The prohibition of refoulement to a risk of cruel, inhuman or degrading treatment or
punishment, as codified in universal as well as regional human rights treaties is in the process
of becoming customary international law, at the very least at regional level.50 22. Under the
above-mentioned obligations, States have a duty to establish, prior to implementing any
removal measure, that the person whom it intends to remove from their territory or jurisdiction
would not be exposed to a danger of serious human rights violations such as those mentioned
above. If such a risk exists, the State is precluded from forcibly removing the individual
concerned.
