scholarly journals Non-refoulement and national security: A comparative study of UK, Canada and New Zealand

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
Comparative Study ◽  
National Security ◽  
Political Rights ◽  
Refugee Convention ◽  
International Obligation ◽  
The Status ◽  
Convention Against Torture ◽  
International Obligations ◽  
The Right ◽  
International Instruments

<p>“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹ There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴ Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it? This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.</p>

scholarly journals Non-refoulement and national security: A comparative study of UK, Canada and New Zealand

2021 ◽  
Author(s):  
◽  
Hanxiao Li
Keyword(s):  
Comparative Study ◽  
National Security ◽  
Political Rights ◽  
Refugee Convention ◽  
International Obligation ◽  
The Status ◽  
Convention Against Torture ◽  
International Obligations ◽  
The Right ◽  
International Instruments

<p>“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹ There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴ Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it? This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.</p>

scholarly journals The Dilemma of Australian Pacific Solution: The Non-Refoulement Principle Versus National Security

2019 ◽  
Vol 06 (02) ◽  
pp. 340-360
Author(s):  
Ninin Ernawati
Keyword(s):  
National Security ◽  
The Other ◽  
Australian Government ◽  
Refugee Convention ◽  
Other Hand ◽  
International Obligation ◽  
The Pacific ◽  
International Obligations ◽  
The Right

The Australian Government has issued various policies to deal with refugees. One of the policies is the Pacific Solution and it is considered as a manifestation of national security principles. On one hand, the policy against the non-refoulement principle, which is the central principle of the refugee convention and Australia is one of the states that ratified the 1951 Refugee Convention. Obviously, Australia should not violate the non-refoulement principle. On the other hand, Australia has experienced a dilemma between prioritizing its interests and fulfilling international obligation to protect refugees who entering its territory. This article discusses whether the national security principle is contrary to the non-refoulement principle; and how Australia can accommodate both principles without neglecting the rights of refugees and still be able to maintain their interests. This article also reviews how Australia can implement policies based on national security principle when it has to face international obligations–in this case, the non-refoulement principle. This research concludes that the national security and the non-refoulement principle are basically contradictory. However, Australia can accommodate these two principles by counterbalancing actions, such as the establishment of national laws that still highly consider humanitarian standards contained in the non-refoulement principle. Australia has the right to implement number of policies based on its national law, while that the same time Australia cannot ignore their international obligation to protect refugees in accordance with the 1951 Refugee Convention that they have ratified. Reflecting on some previous policies, this study concludes that Australia has not been able to accommodate both principles.

Connecting the Obligation Gap: Indonesia’s Non-Refoulement Responsibility Beyond the 1951 Refugee Convention

2021 ◽  
pp. 1-15
Author(s):  
Dio Herdiawan Tobing
Keyword(s):  
International Law ◽  
Political Rights ◽  
Refugee Convention ◽  
International Convention ◽  
Customary International Law ◽  
Rights Of The Child ◽  
Human Rights Treaties ◽  
Convention Against Torture ◽  
International Obligations ◽  
Missed Opportunity

Abstract This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.

scholarly journals The Implementation of Non-Refoulement Principle to the Asylum Seekers and Refugees in Indonesia

2017 ◽  
Vol 1 (2) ◽  
pp. 168
Author(s):  
M. Alvi Syahrin
Keyword(s):  
National Security ◽  
International Law ◽  
Geneva Convention ◽  
The State ◽  
Political Rights ◽  
State Party ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
The Government

The expulsion of refugees, either by the state party or by the non-state party  to the 1951 Refugee Convention or countries  has  protracted the refugees’ suffering. Some countries which are the parties to the 1951 Convention even drive out the refugees to outside their national territory for reasons that the refugees were threatening national security or disturbing public order in the country. In the discussion, it is found that firstly, the principle of non-refoulement is a jus cogen and has become customary international law. The non-refoulement principle has legal binding power to both the State party and the non-State party to the 1951 Refugee Convention. Secondly, according to Article 32 paragraph 1 of the 1951 Convention, the implementation of the principle of non-refouelement is not absolute. Exceptions can only be made if the refugees concerned become a threat to national security and disturb public. Thirdly, Indonesia has not yet the State Party to the Refugee Convention of 1951 but Indonesia is subject to the principle of non-refouelement. This is because  (i) Indonesia has ratified the Convention against Torture, the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War and the ICCPR/International Covenant on Civil and Political Rights (set on the principle of non-refoulement), (ii) the obligation of the state to rule of customary international law (based on the moral and ethical aspects of the enforcement of international law), and (iii) there is legal instrument issued by the government related to the principle of the principle of non-refouelement; Fourth, there is no written sanctions imposed on Indonesia if violations of international law are with regard to the refugee problems.

scholarly journals Torture by the Nigerian Police Force: International Obligations, National Responses and the Way Forward

2017 ◽  
Vol 2 (1) ◽  
pp. 169-187
Author(s):  
Elkanah Babatunde
Keyword(s):  
Legal Framework ◽  
Police Brutality ◽  
Political Rights ◽  
International Treaties ◽  
Convention Against Torture ◽  
International Obligations ◽  
Degrading Treatment ◽  
Civil And Political Rights ◽  
The Right ◽  
Right To Dignity

Police brutality has become rife in Nigeria and is regarded by some as a normal part of police operations. This is despite the fact that the Nigerian Constitution provides for the guarantee of the right to dignity and the protection against torture and inhuman or degrading treatment. Nigeria is also party to some international treaties such as the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter on Human and Peoples’ Rights which expressly prohibit torture and other cruel, inhuman and degrading treatment. This raises the question whether police brutality in Nigeria amounts to torture and / or other cruel, inhuman or degrading treatment and whether the existing legal framework sufficiently prevents and punishes the perpetrators of these acts.

scholarly journals Skipan talsmanns fyrir börn – grundvöllur ákvörðunar og framkvæmd

2015 ◽  
Vol 11 (2) ◽  
pp. 313-332
Author(s):  
Hrefna Friðriksdóttir ◽  
Hafdís Gísladóttir
Keyword(s):  
United Nations ◽  
Child Protection ◽  
Justice System ◽  
Democratic Society ◽  
Rights Of The Child ◽  
The Status ◽  
United Nations Convention ◽  
Child Friendly ◽  
The Right ◽  
International Instruments

In recent years there has been a growing interest in the rights of children in various justice systems. The interpretation of international instruments, such as the United Nations Convention on the Rights of the Child legalized in Iceland as law 19/2013, places a strong emphasis on strengthening the status of the child. The concept of child-friendly justice has emerged reflecting a vision of a justice system that has adapted to the interests and needs of children. A key element is ensuring the right of the child to participate, building on the notion that participation actively promotes their citizenship in a democratic society. The complexity of child protection cases makes it imperative to ensure that children get the assistance they need to communicate and be able to influence procedures. This article discusses the development of provisions in child protection laws on the appointment of spokespersons for children and represents the findings of a study done on such appointments with various child protection committees. The main results of this research indicate that the development of the law has been positive. The enforcement does not however reflect these develpments and there is a lack of formality, assessment and satisfactory argumentation.

Socio-Economic Rights and Their Implementation: The Impact of Domestic and International Instruments

2004 ◽  
Vol 32 (2) ◽  
pp. 243-259 ◽  
Author(s):  
Gerhard Erasmus
Keyword(s):  
Human Rights ◽  
Political Rights ◽  
Economic Rights ◽  
Personal Liberty ◽  
Legal Remedy ◽  
Basic Quality ◽  
Civil And Political Rights ◽  
The Right ◽  
International Instruments ◽  
The Impact

Socio-economic rights are those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing. They differ from traditional civil and political rights such as the right to equality, personal liberty, property, free speech and association. These “traditional human rights” are now found in most democratic constitutions and are, as a rule, enshrined in a Bill of Rights; which is that part of the Constitution that is normally enforced through mechanisms such as judicial review. The victims of the violation of such rights have a legal remedy. Individual freedom is a primary value underpinning civil and political rights.

scholarly journals Women as Passive Citizens in Kant's Theory of Citizenship

2020 ◽  
Vol 21 (2) ◽  
pp. 1-18
Author(s):  
Serpil Durğun
Keyword(s):  
Legislative Process ◽  
Active Citizenship ◽  
Political Rights ◽  
Citizenship Status ◽  
The Status ◽  
The Republic ◽  
The Right ◽  
Independence Criterion ◽  
Independent Person ◽  
Active Citizen

Kant, who is one of the contractarian theorists in political philosophy, positions the person who has the right to vote and participates in the legislative process as a citizen. This positioning is directly related to Kant's attribution of citizenship to the independence precondition. For Kant, independence means that a person possesses a certain amount of ownership which enables him to sustain his life on his own. The person who owns a certain quantity of property is the master of himself as he will not receive orders from the others and will not need the protection of others. Positioning an independent person as an active citizen with political rights, Kant considers persons who are non-owners as passive citizens because they cannot meet the prerequisite for independence. Passive citizens who are deprived of all political rights are merely citizens of the state. According to Kant's argument, women can never move up to the active citizenship status, although the republic has cleared the way for the possibility that every member of the republic could eventually move up to the active citizenship status. The status of being man of property, which is a prerequisite for the independence criterion, loses all its functions when women are in question. Even if a woman is a property owner, this is still considered insufficient for the independence criterion. Kant bases this idea of him on the assumption of women's nature and the prenuptial agreement.  

(2) Convention on the Political Rights of Women, adopted by the seventh session of the General Assembly, December 20, 1952

1953 ◽  
Vol 7 (1) ◽  
pp. 173-175
Keyword(s):  
United Nations ◽  
Public Service ◽  
General Assembly ◽  
The Political ◽  
Political Rights ◽  
Men And Women ◽  
The Status ◽  
The United Nations ◽  
The Government ◽  
The Right

Desiring to implement the principle of equality of rights for men and women contained in the Charter of the United Nations,Recognizing that everyone has the right to take part in the government of his country directly or through freely chosen representatives, and has the right to equal access to public service in his country, and desiring to equalize the status of men and women in the enjoyment and exercise of political rights, in accordance with the provisions of the Charter of the United Nations and of the Universal Declaration of Human Rights,

scholarly journals Protection AgainstRefoulementfrom Europe: Human Rights Law Comes to the Rescue

1999 ◽  
Vol 48 (3) ◽  
pp. 515-544 ◽  
Author(s):  
Hélène Lambert
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Political Rights ◽  
Refugee Status ◽  
The Status ◽  
Convention Against Torture ◽  
Domestic Jurisdiction ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
Scope Of Protection

A growing opinion has appeared in refugee and human rights discourse that the 1950 European Convention on Human Rights and Fundamental Freedoms (the European Convention) provides more extensive protection againstrefoulementthan the 1951 UN Convention relating to the Status of Refugees (the Refugee Convention). However, uncertainties remain as to whether the protection offered by the 1984 UN Convention against Torture (the Torture Convention) and the 1966 UN International Covenant on Civil and Political Rights (the Political Covenant) may substitute, or, rather, reinforce, that of the European Convention. Which of these four instruments offers the greatest protection against a decision ofrefoulementfrom a European country? The answer to this question is far from being academic. The rule that an international organ may only be competent to consider an individual petition or communication provided “the same matter is not being examined under another procedure of individual investigation or settlement” is embodied in all three instruments providing a procedure for individual complaints. It is therefore crucial for an asylum-seeker to give his or her best shot first, even if, as rightly pointed out by Liz Heffernan, the Strasbourg organs and the Geneva organs are not in competition.1This article will review the scope of protection afforded under the three of these treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction.

Sign in / Sign up

Export Citation Format

Share Document