Zeynep Dirier
THE BASIC PRINCIPLES OF REFUGEE LAW
The term asylum has been encountered throughout the ages; it is a phenomenon that arises in order to secure the fundamental rights and freedoms of the people, which have been granted to the individual as a result of his being a human being, that is in danger or the possibility of endangerment of these fundamental rights and freedoms. From past to present, this phenomenon, which has been the reality of the world has different kinds of reasons such as religious, ethnic, political, etc., and according to official data, today, 82.4 million people have been displaced internationally due to existing violations of rights.[1]
In the historical process, the states that received immigration as a result of the massiveness of the existing movements, firstly, embraced national solutions in order to regulate the existing migration movements, but due to the fact differentiation of the national solutions between states and some of the causation to serious human rights violations of them; gave way to the international solution-seeking process that started with the League of Nations, and that gave place to the United Nations after the Second World War; after a lengthy discussion process; the product of international consensus, [2]the 1951 Convention Relating to the Status of Refugees, also known as the “Magna Carta of Refugee Law”, entered into force.
This convention defines the individuals who have made their asylum movement as, “As a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” As it is understood from the existing definition, the reason for the people defined in this group to leave their homeland is their fear of the causes that have been listed in the convention. These states, which accept these refugees who left their states where they lived in fear; should observe certain principles, that they should take into consideration in their admission processes, arising from the nature and characteristics of the refugee law.[3]
These are;
- The principle of non-refoulement
- The principle of privacy
- The principle of not being penalized for illegal entry or presence
- The principle of non-discrimination
- The principle of effectiveness of access to asylum procedures
- The principle of the civil nature of international protection
- The principle of access to permanent solutions
THE PRINCIPLE OF NON-REFOULEMENT
The historical basis of the principle of non-refoulement, which is one of the most controversial principles of refugee law, has historical roots from far in the past. In the legends that have spread to the present day, it was accepted as a sacred obligation for the king to give protection to those who took refuge in him.[4] This principle, which was accepted as a sacred obligation in the past, has turned into a conventional responsibility arising from international documents and then a principle that states should adopt whether they are party of the conventions or not.
THE LEGAL NATURE OF THE PRINCIPLE AND ITS EXTENT IN THE 1951 CONVENTION
As it is seen, the principle of non-refoulement has an independent nature from the 1951 Convention. There are different views in the doctrine regarding the nature of the principle. General views on the nature of the principle have been collected under the view; that the principle is a peremptory (jus cogens) norm, that it is one of the international customary rules that it is not an international customary rule, and the view that it is one of the general principles of law. The most dominant views from among the exiting views are the view that accepts as a jus cogens norm and the view that accepts as one of the international customary rules.[5] The definition of the peremptory (jus cogens) norm is as follows, according to Article 53 of the 1969 Vienna Convention on the Law of Treaties: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” and again Article 64 of the same agreement states that, “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” Within that regulation, it is understood that jus cogens rules are at the top of the hierarchy of international rules. Thus, the current principle becomes binding on all states and cannot be limited. According to those who support the current view, arrogating the view of the principle isn’t a jus cogens rule on the plea of alleging its restrictive nature, is against the purpose of the regulation and the structure of the policy that provides protection against absolutely prohibited transactions.[6] When it comes the consideration of the view that defends the idea of the principle is one of the customary law rules; in order for a multilateral agreement to become a customary rule of law, there are three essential rules that have been regulated and accepted within Nicaragua case of the International Court of Justice. They are as follows: “1) The rule must have the capacity to create a norm that will form the basis of a general rule of law, 2) Wide and representative participation in an uninterrupted manner (opinion juris), 3) Widespread application of the rule with the idea that it is a legal obligation (state practice)” Thus, those who adopt this idea in doctrine states, the principle of non-refoulement is not only a contractual obligation, the principle also has the feature of creating norms, therefore the principle should be accepted as a customary law rule.[7] In doctrine, the views that defend the idea of the non-refoulement principle isn’t a jus cogens norm, substantially, base their arguments upon the existence of the exceptions that are regulated under Article 33, paragraph 2, of the 1951 Geneva Convention. When Article 33 has taken into consideration:
- 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 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.
This article, which creates a debate on the legal status of the principle, not only limits the states to which despite not being the party of the convention the principle will be applied, on top of that gives some initiatives to the states that are obliged to interiorize this principle by virtue of being party of the convention. The initiative that entitles to the states “right to refoulement” if these two presumptions that are regulated under article occur and furthermore, within Article 42, the right to make a reservation, which might let possibility like not recognizing the principle of non-refoulement to states or extending the right to refoulement is prohibited.[8]
NON REFOULEMENT PRINCIPLE UNDER OTHER INTERNATIONAL CONVENTIONS
Alongside the 1951 Geneva Convention, the other conventions that accept the non-refoulement principle are;
- Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has a clear regulation about the principle, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
- Although the United Nations International Covenant on Civil and Political Rights does not explicitly regulate the non-refoulement principle, we can deduce from the Article 6 of the convention which regulates the right to life and the death penalty can only be applied with a final court decision.
- The European Convention on Human Rights does also not expressly regulate the non-refoulement principle; but it is seen that many decisions of the European Court of Human Rights have reached many decisions with the broad interpretation of Article 2 (the right to life), Article 3 (prohibition of torture), Article 4 (prohibition of slavery and forced labor), Article 7 (no punishment without law), Article 4 of the 7th Protocol (Right not to be tried or punished twice) etc.[9]
In addition, other international documents that have explicitly regulations are (IV) European Convention on Extradition, (V) United Nations Convention on Transnational Organized Crime, (VI) Article 3 of the 1966 Bangkok Principles on the Status and Treatment of Refugees, (VII) Article 22 of the American Convention on Human Rights, The Council of Europe Convention on Preventing and combating violence against women and domestic violence (İstanbul Convention yaşatır), (VIII) 3rd Chapter; Paragraph 5 of the Cartagena Declaration on Refugees and (IX) Article 19(2) of the Charter of Fundamental Rights of the European Union.
NON-REFOULEMENT PRINCIPLE IN DOMESTIC LAW
The principle of non-refoulement is clearly regulated in Article 66 of the Law on Foreigners and International Protection No. 6458, which is our legal text regulated during the integration process into the European Union:
Non-refoulement
ARTICLE 4 – (1) No one within the scope of this of this Law shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.
At the same time, it is generally accepted in the doctrine that granting ‘secondary protection status’ to persons who are not qualified as refugees or conditional refugees, if they meet the requirements of the sub-articles a, b, c of Article 63, is largely similar to the principle of non-refoulement.[10]
Subsidiary Protection
ARTICLE 63 – (1) A foreigner or a stateless person, who neither could be qualified as a refugee nor as a conditional refugee, shall nevertheless be granted subsidiary protection upon the status determination because if returned to the country of origin or country of [former] habitual residence would:
- a) be sentenced to death or face the execution of the death penalty;
- b) face torture or inhuman or degrading treatment or punishment;
- c) face serious threat to himself or herself by reason of indiscriminate violence in situations of international or nationwide armed conflict; and therefore is unable or for the reason of such threat is unwilling, to avail himself or herself of the protection of his country of origin or country of [former] habitual residence.
CONCLUSION
Refugee movements, which have historical roots from far in the past, have certain principles arising from either the conventions or the custom of the states. Although there are debates in the doctrine in general, these principles are generally agreed upon; the principle of non-refoulement, the principle of privacy, the principle of not being penalized for illegal entry or presence, the principle of non-discrimination, the principle of effectiveness of access to asylum procedures, the principle of the civil nature of international protection, the principle of access to permanent solutions. Although there are debates about its legal nature, the principle of non-refoulement, which many states adopt within international conventions or in their domestic laws, is a principle that aims to ensure people or groups of people who have sought asylum because of the fear they experience are not sent back to the state where they live in fear and a principle that is prohibited to make reservations to the articles that have been regulated to guard it in conventions and the 1951 Convention. Although it is forbidden to make reservations to the articles that regulate the principle; the state can be able to enjoy from right to refoulement if a state can claim a refugee who is regarded as a danger to the security of the country, within reasonable grounds, in which that refugee is or if that refugee, had been convicted by a final judgment of a particularly serious crime, he can be refouled on the grounds that he constitutes a danger to the community of that country. Despite the fact that the ‘right to refoulement’ is tried to be narrowed down by the provisions of the international conventions that also regulate the principle of non-refoulement, there are many examples of existence of that initiative in practice. In our domestic law, the principle of non-refoulement is clearly regulated by the Law on Foreigners and International Protection and even as it is gained doctrinal acceptance, the importance of the principle has been reinforced by making a clear regulation on the subsidiary protection status’, which is similar to the prohibition of non-refoulement.
[2] AYTEKİN, DİDEM, AVRUPA İnsan Hakları Mahkemesi Kararları Işığında Geri Göndermeme İlkesi, T.C. Ankara Yıldırım Beyazıt Üniversitesi Sosyal Bilimler Enstitüsü Kamu Hukuku Anabilim Dalı, Ankara, 2020, p.45
[3] DEMİRCİ/CİHANGİR, YUSUF, MEHMET AYKUT. Soru ve Cevaplarla Mülteci Hukuku, Adalet Yayınevi, Ankara, 2020, p.47
[4] CEKİ, JABOB, Geçmişten Geleceğe Zorunlu Göç: Mülteciler ve Ülke İçinde Yerinden Edilmiş Kişiler: Öner, Suna Gülfer Ihlamur/ Öner, N. Aslı Şirin (Editörler) (2018) Küreselleşme Çağında Göç, Kavramlar Tartışmalar İçinde, 4. Baskı, İstanbul, İletişim Yayınları, p. 183-197.
[5] AYTEKİN, DİDEM, AVRUPA İnsan Hakları Mahkemesi Kararları Işığında Geri Göndermeme İlkesi, T.C. Ankara Yıldırım Beyazıt Üniversitesi Sosyal Bilimler Enstitüsü Kamu Hukuku Anabilim Dalı, Ankara, 2020, p.45
[6] BOZOVALI, ESİN, Geri Göndermeme İlkesi ve Sığınma Hakkı: Türkiye’nin Batı Sınırındaki Düzensiz Göçe Yönelik Uygulamaların AİHM Kararları Işığında Değerlendirilmesi, Galatasaray Üniversitesi Sosyal Bilimler Enstitüsü, Kamu Hukuku Anabilim Dalı Yüksek Lisans Tezi, Tez Danışmanı: Prof. Dr. Oktay UYGUN, Temmuz 2019, p.46
[7] UZUN, ELİF Geri Göndermeme (Non- Refoulement) ilkesinin Uluslararası Hukuktaki Konumu Üzerine Bir Değerlendirme, Uluslararası Hukuk ve Politika, C.8, S.30, 2012, s.33. 128 Sibel Yılmaz, Kitlesel Akın Durumunda Geçici Koruma Rejimi ve Asgari Muamele Standardı, Seçkin Yayıncılık, Ankara 2016, p.61-62
[8] CASTILLO MARIOS, JUSTINE, Les interprètes de la Convention de Genève du 28 juillet 1951 Relative au Statut Des Réfugiés , Étude Du Point de vue de la France, Thèse Présentée pour Obtenir Le Grade De Docteur De L’université De Bordeaux École Doctorale De Droit (ed 41) Spécialité Droit Public, Le 27 mai 2016, p. 203
[9] AKMAN, MACİT, İnsan Hakları Avrupa Sözleşmesi’nin Geri Göndermeme İlkesi Bağlamında Mültecilere Uygulanabilirliği, Gaziantep Üniversitesi Sosyal Bilimler Enstitüsü, Kamu Hukuku Ana Bilim Dalı Yüksek Lisans Tezi, Tez Danışmanı: Yrd. Doç. Dr. Lider BAL, Temmuz 2019, p.94
[10] KONYALI, GÖKÇE, Uluslararası Hukukta Sığınma Hakkı, Seçkin Yayıncılık, 2021, p.66
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