scholarly journals The Principle of non- Refoulement and its Role in the Protection of Refugees

2019 ◽  
Vol IV (III) ◽  
pp. 456-465
Author(s):  
Muhammad Zubair ◽  
Muhammad Aqeel Khan ◽  
Muzamil Shah
Keyword(s):  
At Risk ◽  
International Law ◽  
International Level ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
Domestic Law

The protection available to refugees under the principle of non-refoulement is a well-established rule of the customary international law; which means that they can’t be shiftedagainst their well to their country where their life is at risk. A person who avails the protection of the principle of non-refoulement and other protections guaranteed under the international refugee instruments is considered a refugee. This principle is well established both under the Refugee Convention 1951 and Convention against Torture (CAT) 1984. This research revolves around the question that if a country is not a signatory to any refugee related instrument at international level nor has any domestic law related to refugees, sothen what precludes such a nation from expelling a person or group of persons from their territory? The paper explores the various protections available to refugees in general and under the principle of non-refoulement in particular.

scholarly journals The Principle of non- Refoulement and its Role in the Protection of Refugees

2019 ◽  
Vol IV (II) ◽  
pp. 478-487
Author(s):  
Muhammad Zubair ◽  
Muhammad Aqeel Khan ◽  
Muzamil Shah
Keyword(s):  
At Risk ◽  
International Law ◽  
International Level ◽  
Refugee Convention ◽  
Customary International Law ◽  
Convention Against Torture ◽  
Domestic Law

The protection available to refugees under the principle of non-refoulement is a well-established rule of the customary international law; which means that they can’t be shiftedagainst their well to their country where their life is at risk. A person who avails the protection of the principle of non-refoulement and other protections guaranteed under the international refugee instruments is considered a refugee. This principle is well established both under the Refugee Convention 1951 and Convention against Torture (CAT) 1984. This research revolves around the question that if a country is not a signatory to any refugee related instrument at international level nor has any domestic law related to refugees, sothen what precludes such a nation from expelling a person or group of persons from their territory? The paper explores the various protections available to refugees in general and under the principle of non-refoulement in particular.

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.

“Be Karbala Miravim!”

2017 ◽  
Author(s):  
Anicée Van Engeland
Keyword(s):  
At Risk ◽  
International Law ◽  
Hybrid System ◽  
Legal System ◽  
Iraq War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Standards ◽  
Domestic Law

This chapter considers the extent to which Islamic governance can integrate international humanitarian law (IHL) into its own legal system by examining the case of Iran. It addresses the consequences of the emergence of an Islamic-universal hybrid legal system. The stakes are high because IHL’s efficiency and necessity have been questioned: The existence of the Iranian hybrid system of law can be perceived as a threat by scholars arguing that international law is at risk of fragmentation due to the variety of domestic and regional approaches to fundamental legal standards. The importance of those stakes is illustrated by the Iran-Iraq War: The process of mixing a universal secular legal system with a religious domestic law occurred at a crucial time when Iran was at war with Iraq, with clear effects on the protection of civilians and the conduct of hostilities.

La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano

2009 ◽  
pp. 565-590
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Foreign Affairs ◽  
Customary International Law ◽  
Exclusive Jurisdiction ◽  
Head Of State ◽  
State Practice ◽  
Functional Immunity ◽  
Head Of Government ◽  
Domestic Law

- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

Part VI Refugee Rights and Realities, Ch.50 Non-refoulement

2021 ◽  
Author(s):  
Mathew Penelope
Keyword(s):  
International Law ◽  
Asylum Seeker ◽  
Deep Structure ◽  
Forced Migration ◽  
The State ◽  
State System ◽  
Refugee Convention ◽  
Customary International Law ◽  
Legal Fictions ◽  
The Way

This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement. The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement. The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement—that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.

5 Formal Requirements for Valid Consent to Direct Military Assistance

2020 ◽  
Author(s):  
De Wet Erika
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
The Political ◽  
Legal Basis ◽  
Military Assistance ◽  
Customary International Law ◽  
Head Of State ◽  
Valid Consent ◽  
Formal Requirements ◽  
Domestic Law

This chapter explores potential formal requirements that may affect the validity of consent to direct military assistance. Customary international law only imposes two specific, formal limitations on the legal construct of military assistance on request. The first would be that the request for or consent to military assistance must be issued (and withdrawn) by the highest officials of a state, namely, the head of state and/or government. Where these two positions are not combined within the same person and there is disagreement between them as to whether consent exists, the domestic law of the country in question may be decisive in determining who has the final say in the matter. However, such disagreement between the two highest state officials is likely to be an indication of the political fragility of the consent, which should caution against relying exclusively on consent as the legal basis for the forcible measures. The second constraint imposed by customary international law concerns the requirement that ex ante consent as expressed in pro-invasion treaty clauses must be complemented by ad hoc consent at the time of the forcible measures. Apart from these two constraints, customary international law does not seem to impose any particular formal requirements on states expressing consent to forcible measures on its territory.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Social Relationships ◽  
Court Decisions ◽  
International Courts ◽  
Customary International Law ◽  
Legal Norms ◽  
State Practice ◽  
Municipal Court ◽  
Domestic Law

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

To the question of the transfer of the «soft law» concept on the national legal systems level

2015 ◽  
Vol 3 (3) ◽  
pp. 112-116
Author(s):  
Александр Демин ◽  
Alyeksandr Dyemin
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Empirical Data ◽  
Turning Point ◽  
Soft Law ◽  
International Level ◽  
Legal Systems ◽  
Data Collation ◽  
Domestic Law ◽  
Law Making

Initially, the concept of «soft law», its development, the accumulation of empirical data collation and analysis were carried out as part of the science of international law. The turning point is that «soft law» issue is no more limited by international level. Of course, the «soft law» phenomenon has actually not been explored to the same extent at the level of domestic law systems, than as it has been in the international law. At the same time, it seems profitable to use the «soft law» concept in relation to those various instruments that have a domestic character, which are not formally part of the official source system of law, but which are important for law-making and law enforcement.

On the Evidence of U.S. Treaty Law

1972 ◽  
Vol 7 (3) ◽  
pp. 361-367
Author(s):  
Salo Engel
Keyword(s):  
International Law ◽  
National Level ◽  
General Interest ◽  
International Level ◽  
Customary International Law ◽  
Treaty Law ◽  
The Status ◽  
The Creation ◽  
International Law Commission ◽  
Law Commission

According to Article 24 of its Statute, the International Law Commission “shall consider ways and means for making the evidence of customary international law more readily available”. The existence of such law is indeed difficult to prove even at the national level; how much more so in the international sphere. This, however, should not mislead one to think that there are no problems with regard to treaty law. On the international level it may not be too difficult to determine whether a treaty exists on a particular question, but information about the exact status of the treaty (its entry into force, the parties thereto, the amendments thereof, etc.) in most cases is not easily available. Wherefore, I proposed many years ago the creation of an International Legislation Register which would contain up-to-date information at least about the status of multi-partite treaties of general interest.

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