COMPARATIVE ANALYSIS OF PRINCIPLE OF NON-REFOULEMENT IN REFUGEE LAW AND JUS COGENS; SCOPE, EXCEPTIONS AND EXTRATERRITORIAL APPLICATION

Abstract

Non-refoulement is the main pillar of international refugee protection and international human rights law. The rule, which is a fundamental one provides protection, as per Article 33 of the 1951 Refugee Convention, by barring States from returning, expelling or surrendering an individual to a territory where his life would be in danger, facing real risk of persecution in form of torture and inhumane treatment. As per the Additional Protocol 1967 article 1 relating to the status of refugees, the time-based and territorial limitations of the Refugee Convention 1951 have been removed. This concept of non-refoulement has radically transformed from being a treaty obligation as per international refugee law to that of being a non-derogable custom of human rights law internationally, notably as a jus cogens, Customary International Law, Convention Against Torture and International Covenant on Civil and Political Rights.
This is doctrinal research which consists of a comparative study of doctrine of non-refoulement, its jurisprudence and how it has evolved through domestic and international judicial decisions. This research critically reviews the concept and doctrine of non-refoulement, its legal framework and use in today's world. It systematically examines the tension between sovereign border controls and human rights commitments, limited scope of refugee law’s "safety exceptions" as compared to law of human rights, and complicated externalization issues arising due to maritime interception, externalized management of the borders and border pushback.