States’ Obligation of Non-refoulement of Refugees under International Law

This article does not aim to provide a full analysis of the obligation of non-refoulment of refugees under international law. Rather, it mainly focuses on the extra-territorial application of the obligation. That is, whether the obligation is only applied to the refugees that have already crossed the State of refuge’s borders or it is also applied to those who are still outside the concerned State’s borders. It also discusses the feasibility of applying the human rights’ principle of effective control to identify the state’s responsibility for the refoulment policies that take place beyond the state’s borders and when these policies could be attributed to a certain state. The article attempts to answer the question of whether the obligation of non-refoulment, with its extraterritoriality, has acquired the customary international law status or not. It emphasizes the implications of the inconsistent practices of the states with regards to the non-refoulment obligation on the customary international law status of the obligation. To that end, it analyses the US different Administrations inconsistent practices towards the Haitian refugees’ claims. By doing so, the article aims to answer whether these inconsistent practices create varying norms or that they rather establish a certain rule to which any subsequent inconsistent practice should be considered as a violation of the precedent rule not a creation of a new one. This article’s thesis is that every state in the world shall refrain from returning refugees to the countries where they would face prosecution whether or not these refugees have crossed its borders and whether or not this state is party to the Refugee Convention or its 1967 Protocol as the obligation of non-refoulment has crystalized into a customary international law norm.