The principle of non-refoulement, first introduced into international legal literature under the 1933 Convention Relating to the International Status of Refugees and comprehensively regulated by the 1951 Geneva Convention, is explicitly articulated in Article 33 of the Convention:

“1. 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 first paragraph of this provision imposes an absolute prohibition on returning or expelling a refugee under any circumstances.

Despite representing a humanitarian and peaceful safeguard, the principle entered international legal texts relatively late. Historically, deportation and expulsion were regarded as falling within the sovereign authority of states, considered an inherent “right of the state.” However, the devastating consequences of the two World Wars prompted states to gradually limit sovereign powers in pursuit of establishing minimum democratic standards, as reflected in institutional transitions from the League of Nations to the United Nations, and from the Council of Europe to other international frameworks. One significant outcome of this shift is the recognition of non-refoulement.

While the principle is explicitly regulated under the 1951 Geneva Convention, it has also been incorporated—either directly or through judicial interpretation—into numerous other international instruments. Nonetheless, international legal texts do not recognize non-refoulement as an unconditional rule; paragraph two of Article 33 introduces certain exceptions:

“2. 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… or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

This provision seeks to strike a balance between protecting refugees and preserving public order and national security.

The ECHR’s Approach and Early Jurisprudence

Although the European Court of Human Rights (ECtHR), established under the Council of Europe, operates primarily on the basis of the European Convention on Human Rights (ECHR), the Convention itself does not explicitly regulate non-refoulement. Nevertheless, the Court has developed the principle through judicial interpretation and consistently defined its scope by integrating it into broader human rights protections.

In reviewing the ECtHR’s early decisions against Turkey, the A.G. and Others v. Turkey case stands out.

In this application, an Iranian family facing deportation from Turkey claimed that their removal to Iran would expose them to torture and ill-treatment, disrupt family life, and violate their right to a fair trial. The ECtHR, however, found no sufficient evidence demonstrating a “real and substantial risk” of ill-treatment upon return. It also ruled that there was no breach of family life rights, that effective domestic remedies were accessible, and that the discrimination claims fell outside the scope of the Convention. Consequently, the Court declared the application manifestly ill-founded.

Jabari v. Turkey: A Turning Point in Jurisprudence

Unlike A.G., the Jabari v. Turkey case represents a landmark in the ECtHR’s jurisprudence on non-refoulement.

The applicant, Hoda Jabari, claimed that upon return to Iran, she faced the risk of being stoned to death or subjected to severe corporal punishment for engaging in an extramarital relationship. Her asylum request in Turkey, however, had been rejected on procedural grounds, and a deportation order was issued.

Upon examining the case, the ECtHR held that deporting the applicant would expose her to a real risk of inhuman and degrading treatment, thus violating Article 3 of the ECHR, which prohibits torture and ill-treatment.

Crucially, unlike in A.G., the Court also found that Turkey lacked effective domestic remedies for reviewing asylum claims and deportation decisions, highlighting a systemic deficiency in protecting individuals at risk.

This decision marked a significant shift in the ECtHR’s approach: while A.G. upheld Turkey’s sovereign discretion, Jabari reinforced positive obligations on states to protect individuals from persecution, shaping subsequent non-refoulement jurisprudence across Europe.

References

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Molnár, T. (2016). The Principle of Non-Refoulement under International Law: Its Inception and Evolution in a Nutshell. Corvinus Journal of International Affairs, 1(1), 51–61.

Petiteville, F. (2006). La politique internationale de l’Union européenne. Paris: Sciences Po. https://doi.org/10.3917/scpo.petit.2006.01.0233

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