One of the most important aspects of the convention of 1951 is undoubtedly the including of one of the general principles of international law; the principle of non-refoulement to territories with a threat risk in the text by the 33rd article and the prohibition of making reservations by contracting countries on this article. Although this right was defined in conventions of “International Status of Refugees” on 1933 and “Status of Asylum Seekers from Germany” on 1938, the fact that the first was signed by 8 countries whereas the latter was signed by only, they did not provide effective legal protection. The power of the convention of 1951 comes from its many undersigning countries.
33rd article of the convention reads: “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”.
The exceptions of this article are declared with serious conditions in the 2nd clause of the article:
“The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
The principle is accepted to be violated by the following conditions; If the asylum seekers are rejected at the border when they do not have the right to seek asylum in any other place; If the refugee is deported from the country of asylum to the territories where his life, freedom or physical safety (implies responsibility of danger) would be threatened, If the refugee is forcefully deported back to the country of origin under well founded fear of persecution or if the asylum seeker is being deported to a country in which there is possibility of being deported to the country of origin under well founded fear of persecution.
Refoulement to territories with threat of cruelty is clearly and interpretably prohibited by the 3rd article of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), 45/4th article of the Fourth Geneva Convention of 1949, 7th article of the Convention on Civil and Political Rights, 8th article of the Declaration on the Protection of all Persons from Enforced Disappearance, 5th principle of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
Moreover, effective regional conventions like European Convention of Human Rights (article 3), American Convention of Human Rights (article 22), Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (article 2), define the right of non-refoulement by the content of their regulations if not clearly stated..
ECtHR has delivered refugee law and humanitarian law enriching decisions with regard to how the principle of non-refoulement shall be understood and enforced. For example, in the case of Soering / United Kingdom of date 7th of July 1989, the court, with reference to the 3rd article (no one shall be subjected to torture, inhumane treatment or punishment), decided that the criminals who might be subjected to such treatment shall not be returned, deported and extradition of such people is prohibited; (the subject of this case was the refoulement of a criminal who was going to be judged in terms of capital punishment in the State of Virgina in U.S.A. Being imprisoned for six to eight years while waiting for the capital punishment was claimed to be an inhumane and degrading treatment) and contrary treatment shall mean the violation of the 3rd article, and by judging that the prohibiting act of the 3rd article is decisive and shall not be restricted, the court consecutively decided that principle of non- refoulement is not only applicable for asylum seekers but also for criminals. Within the cased of Cruz Varas / Sweden of date 20th of March 1991 and Vilvarajah / United Kingdom of date 30th of October 1991 the court decided that the asylum seekers whose applications were rejected are under the protection of the 3rd article.
There are explanations on how the standards of the detention locations should be in Conka / Belgium court decision concerning a Romanian named Jan Conka who was deported from Belgium. Moreover, it was underlined that legal ways against decisions of asylum application rejection and deportation shall not only be in theory but also in actual “sufficient” level. Enforcement standards concerning the “Mass Deportation” prohibition as designated by the 4th Protocol are evaluated in detail within this decision.
ECHR, in the case of D / United Kingdom, delivered a more interesting judgement and decided that refoulement of a person in the final phases of AIDS to his country of origin is a violation of the 3rd Article on the basis of willingly leaving someone to deprivation despite the fact that the conditions as set by the convention of 1951 were not present. The court established a new category which might not be identified with the term of “Convention Refugees” but might give these people humane status similar to the status of the refugee.
- Asylum as a Human Right, Taner Kılıç http://multeci.org.tr/post/Bir-Insan-Hakkc4b1-Olarak-Iltica.aspx
Source: Orçun Ulusoy; 2009; Sorularla İnsan Hakları; İnsan Hakları Gündemi Derneği; Turkish