EXAMINING THE PRINCIPLE OF NON- REFOULEMENT WITH SPECIAL REFERENCE TO EUROPEAN UNION: AN ANALYTICAL STUDY

Abstract

In the modern era, the European Refugee Crisis of the year 2015 shook the European Union and drew the world’s attention towards refugees. Further, the news of the death of a 3-year boy named Aylan Kurdi, in an attempt to reach from Syria to the Greek Island of Kos, in a group of 23 members, strongly moved the global citizens. The death of Aylan led to the opening doors of many European States for Syrian refugees. Their vulnerability and their needs were recognized; accordingly, they were provided protection, shelter, accommodation and means of livelihood. Ever since then, various events like, wars, persecution, natural disasters and climatic change etc. is constantly leading the inflow of refugees in Europe from its neighboring countries. The Principle of non-refoulement, enshrined in the 1951 Refugee Convention provides protection to the refugees. Protection against refoulement is the cornerstone of refugee Protection, the principle is also a well established norm. The practice of the state to accept and protect refugees rather than returning them to territories where there is a threat to their life and freedom has taken the shape of customary law. The 1951 Refugee convention and its 1967 Protocol, an United Nations multilateral treaty, defines the term refugees, it lays down the rights of individual attaining asylum and the state’s responsibilities, granting asylum, the convention also lays down who do not qualify as refugee. The Convention is carved out of Article 14 of 1948 Universal Declaration of Human Rights, which recognizes a person’s right to seek asylum against persecution, in another country. Ever since the approval of the convention on 28 July 1951 and its entering into force on 22, April 1954, the principle of non-refoulement under the convention still stands for refugee protection. So far, the convention has been updated once, known as the 1967 Protocol. The protocol removed the time bar and geographical location limits within which a refugee would seek protection. Initially the 1951 convention only protected European refugees displaced before 1 January 1951, specifically after World War II. The principle of Non-Refoulement, imbibed under Article 33(1) of the convention and is the guiding principle for the refugee protection. However, the very safety of the principles is under question. Over the years, since its establishment, the nature of the

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principle is weathering away; the principle has been metamorphosed both by the refugees and the states to meet their own interests. The legal and administrative measures adopted by the some states, in dealing with the asylum proceedings and their shifting responsibility of considering asylum seekers, is leading to the refoulement of refugees to their country of origin or to the other country, the state is risking both life and freedom of refugees. At the same time, some refugees, in garb of the protection provided under Article 33(1), are pushing themselves hard to enter European Countries in the quest of job opportunities, standard of living and better life, by illegal means, at the stake of their lives. All they aim is just to sneak into the country and rest they will be protected under the principle. While most refugees move towards the host countries to save their lives, many want to enter Europe for a decent life and jobs.

The protection of refugees under the principle of non-refoulement has always been prioritized. Concerns have always been for the refugees, their safety and wellbeing. However, on the other hand, many times the host countries have faced backlash by the human rights watch on any loop of refugee protection. However not much concern has been raised for the host countries who get equally affected by the sudden mass influx of refugees. The refugee inflow affects the host countries on many parameters, depending upon its being developed, developing or under-developed country. The effect is also dependent upon its geographical location, or its area, its demography, availability of resources etc. The mass influx of refugees in large numbers in the European Union has caused tension on social, economic and national security. It has led to the emergence of threat to national security, emergence of anti-immigrant protests, dislike towards refugees, European States against each other on the issue of burden sharing. Consequently, some European States have arrived at their closing door policy for refugees. Having mentioned that, Europe’s closing door policy will not provide them with much solution in fact; it will only lead to increase the anti-Europe sentiments and gross violation of the principle of non-refoulement.

The principle of non-refoulement is being metamorphosed largely because of the shortcoming and the developed ambiguity over the years, in The 1951 Refugee Convention. Along with the issue of the host country, we also see the sufferings, difficulties of the refugees moving towards the European Union. We see a gross violation of the principle of non-refoulement by the European States, by refugees

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being pushed off-shore and pushed to the third world countries, razor-wire fencing on the European border to make entry of refugees even harder, their rights to life, religion and other rights being put at stake and they are left at the border refugee camps in an uncertain future.

The first documented refugee movement began in the 17th Century when the French left their country to escape religious persecution. After that, the movement of people as refugees accelerated and ever since then people leave their country of origin owing to wars, persecution, on the basis of sex, religion, having different political opinions and several other grounds. Moreover, with the passing of time and emerging new issues and changing climates and other factors, the refugee crisis is becoming a common phenomenon across the world. The very term “Refugee” was first coined in France from the French word “Refugie`” meaning, ‘hiding place.’

The refugees got its first modern definition in the League of Nations, in the year, 1921, after the end of World War II. Post that the 1951 Refugee Convention for the Status of Refugee and its 1967 Protocol gave a more concrete definition of Refugees and directly protected under the principle of non-refoulement. The convention was made for the protection of refugees. It defines refugees as someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The convention provided international protection to refugees Under Article 33 the Principle of non-refoulement. Article 33 of the convention states that, no person shall be returned to a palace where his life is under threat. Refugees are forced to move out of their country for several reasons, some includes, for the safety of their and their family’s life, movement in search of better life, job opportunities people also move out owing to reasons of invasion, armed conflict, post war agreements, ethnic and tribal conflicts etc.

If we look at the contemporary European Union crisis, 2015, we see that Europe initially unprepared to manage the refugee crisis and hence, suffered in every aspect. Countries like Sweden, Poland, Czech Republic, and Germany witnessed a major adverse effect. Subsequently, clashes between the natives and the refugees are in constant increase. In addition, there is a sudden change in the attitude of the host

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country towards refugees. The present research is an attempt to study as to what has led to this change in attitude, what could be the consequences of the change, should the European Union close its doors for refugees by modification in their policies. Or should the European Union member states be left to struggle with the burden sharing issues and bitter their relationship, or would forcing the European Union member state to host refugees can be a solution to the crisis. On the other hand, is there a need for a new method to deal with the refugee crisis in Europe?

Further, in the research we see the different kinds of refugees around the world. The major countries from where the majority of refugees come to the European Union and the European Countries where the majority of these refugees move. To understand the refugee issue better, the history of global refugee crisis has been dealt with to understand the nature of refugee crisis around and how, has the principle existed and states abided by the principle and gave shelter to refugees, even without its former definition and incorporation under Article 33 of the Refugee Convention. The chapter has been divided in three phases: the Refugee Crisis prior to the 1951 Convention; post the convention and the refugee crisis of the 21st Century. Further the research deal with the European Refugee Crisis in details, the reason for the crisis.

The research work further deals with refugee protection under International Law and European Law. How the legal framework for the protection of refugees gradually evolved over the years to give the 1951 of Refugee Convention. What are the laws that protect the refugees at the International Level and what laws protect the refugees within the European Union. Since the establishment of the League of Nations for the welfare of the refugees until the recent policy, “The New Migrant Return Policy”, introduced in the month of September 2020 we have seen multiple legal frameworks being laid down one after the other, however the refugee issue remains. Thus, further the research work analyzes the effectiveness of the 1951 convention, whether the rights of the refugee and the natives are effectively balanced.

The research work closely analyzes the Reasons, issues, Impact and the current scenario of the European Union. The research analyzes the effect of the crisis on the European Union, both the positive and negative impact of the crisis. Why are they closing their doors and will the closing of the door will solve the issue. What is the status of European Refugees in Europe according to the World report of 2023.

The present research also analyzes the shortcomings in the 1951 convention, how there is a misuse of the principle of Non-Refoulement, granted under Article 33. There is a viable metamorphosis in the principle of non-refoulement. How the shortcomings in the convention and no upgradation over eight decades is adversely affecting some of the human rights of both the refugees as well as the natives.

With Britain splitting and the Euro-hostile parties on the verge of rising in the countries, we see the whole fabric of the European Union under a close threat. Further

closing doors for these refugees will increase the antagonism, alienation and anti- western sentiments towards the European Union further leading to an increase of the

Principle of non-refoulement, further threatening its existence. The European Union will be violating its obligations by leaving these refugees to bear the pains. If they are left alone, it will increase their risk of falling prey to extremist recruiters. The point here is that, if the European Union opens its doors for refugees or if it closes its doors, in either cases, Europe Will be troubled and a mere introduction of a legal framework cannot be the new age solution to the existing or the upcoming refugee crisis. The research work illustrates the judicial discourse to understand what has been the

stand of the ECtHR on various refugee related issues involving Principle of non- refoulement. By judicial discourse we understand that where the court is inclined for

the protection of refugees and people in need of International protection, in recent times the court in several cases acknowledges that the adoption of restrictive measures for public safety and national security is the State’s desecration.