Browsing by Author "Saarinen, Petra"

This thesis examines the principle of non-refoulement under two different frameworks of international law, refugee law and human rights law, with the purpose of finding out how the content and interpretation of this principle are different between them. While the main purpose and idea of the principle is the same, to protect individuals from being sent to persecution or torture or other ill-treatment, there are nevertheless some differences. Therefore, the purpose of this research is to determine how and to what extent non-refoulement is interpreted differently in these regimes. Furthermore, an analysis on the reasons behind these differences as well as a discussion on the significance it has to the individual are also included. The main difference between the two frameworks concerns exceptions. Under human rights law, non-refoulement is an absolute principle and no derogation from it is allowed under any circumstances. On the contrary, two exceptions are permitted in the refugee law framework allowing states to expel, extradite or remove in other ways an individual even if a risk to their life or freedom exists in the receiving state if that person is a risk to the national security or the person has been convicted of a serious crime and is considered a danger to the community. These different interpretations on non-refoulement create situations where an individual may be treated differently depending on which framework is applied. Some scholars have also questioned the absoluteness of Article 3 of the European Convention on Human Rights under which non-refoulement is protected. States have heavily protested against the European Court of Human Rights interpretation of Article 3 claiming that since exceptions are allowed under refugee law, they should be able to apply them. One of the issues is that refugee law is mainly applied at the national level which means that states are interpreting and applying international law in accordance with their interests. Often, the interest of states is different from that of the refugee which leads to the situation that the individual refugee loses as states are able to apply the exceptions. Furthermore, the lack of an international court or treaty body able to give binding decisions on the interpretation of the 1951 Convention has also contributed to the fact that the state perspective wins. When it comes to the underlying reasons behind these different interpretations, it appears that the human rights law interpretation on non-refoulement has been developed with the objective of guaranteeing protection for all individuals. Refugee law is of course focused on securing the rights of refugees but when examining the preparatory works of the 1951 Refugee Convention, it was clear that there was also a strong will to include a safety net for states in the form of exceptions. Thus, the diverging interests of individuals and states have contributed to the tension now visible between refugee law and human rights law. There appears to be a conflict between state sovereignty and the refugee’s rights and interests. It is therefore questioned whether the 1951 Convention provisions on non-refoulement actually offer protection for the individual or the state.