Non-refoulement and national security

Sammanfattning: Non-refoulement is a fundamental principle of international law, providing an individual the protection from being returned to a place where he or she risks persecution, torture or other ill treatment. The prohibition on refoulement is recognized in refugee law, human rights law and international customary law. Some would argue that the rule has even attained status as a peremptory norm. While there are exceptions to the right to non-refoulement in the1951 Refugee Convention, human rights law dictate that non-refoulement to face torture or ill treatment is an absolute and non-derogable right. In light of the modern threat of global terrorism, many states are applying a “balancing act” between the interest of the refugee and national security concerns. However, there is no international consensus on the permissibility of a balancing act weighing the interest of the refugee against the security interest of a state. While the UNHCR permits such an approach through the exceptions to non-refoulement in Article 33(2), it has been rejected by the HRC, the ECtHR and the ICCPR. There is a problematic collision between legal and political interests, as states keep challenging the absolute nature of non-refoulement to face torture or ill treatment in the name of counter-terrorism.