In the context of the rights of refugees within the framework of humanitarian and customary international law, the principle of non-refoulement is an essential form of protection. Non-refoulement “prohibits states from removing or transferring individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment, or other serious human rights violations.” The 1951 Convention Relating to the Status of Refugees has enshrined the prohibition of refoulement in treaty law under Article 33. This provision bans a contracting party from returning a refugee in any manner to the borders of territories that are known to threaten the life and freedom of said refugee “on account of their race, religion, nationality, membership of a particular social group, or political opinion.” Clause 2 of Article 33 provides for two exceptions if there are reasonable grounds for either regarding a refugee as a threat to the security of the country or the refugee as a danger to its community upon a final judgment convicting them of a serious crime. This paper explores the importance of the non-refoulement principle and the complex ways in which states bypass its implementation. It also sets out to prove non-refoulement as an obligation erga omnes partes for state parties to the Convention. The resultant inference is that state parties to the 1951 Refugee Convention may bring a suit to the International Court of Justice (ICJ) against any nation in violation of the principle of non-refoulement.
II. Non-refoulement Compliance During COVID-19
The non-refoulment principle has been evaded by several states in recent years as governments halted migration procedures to prevent the spread of COVID-19. These policies left no exception for those seeking refuge. For example, the Belgian government introduced measures effectively suspending refugees’ right to seek refuge on account of the coronavirus. It then created an online registration system that caused lengthy wait times for refugees seeking an appointment with concerned officials. And several reports and interviews of asylum-seekers conducted by Human Rights Watch show that Greek law enforcement officials coordinated returns of asylum-seekers to Turkey, where they were then placed on small inflatable rafts and set adrift in Turkish territorial waters. Both these countries are signatories to the Convention. The U.N. High Commissioner for Refugees (UNHCR) opined in its advisory capacity that non-refoulement constitutes a non-derogable provision of international refugee protection but that the application of the two categories of exceptions whereby the refugee is considered a danger to the security of the country or a final judgement convicting the refugee of a serious crime renders them a danger to the community of the country requires an individualised determination by each country in which the refugee seeks asylum.
However, the exceptions do not extend to a pandemic circumstance that warrants a blanket policy of turning away all refugees without assessing their claims. UNHCR declared that “the imposition of a blanket and indefinite measure against the admission of all asylum seekers, or of those of a particular nationality, could lead to a risk of the violation of the principle of non-refoulement.” The UNHCR further added that in case of a confirmed public health crisis such as the ongoing pandemic, alternative available measures such as the implementation of quarantine and isolation to manage the safe arrival of asylum-seekers must be considered to continue safeguarding the right to seek asylum and the principle of non-refoulement. Thus, states that are parties to treaties with provisions relating to non-refoulement such as the 1951 Refugee Convention and Protocol of 1967 relating to the Status of Refugees (which creates an obligation to process asylum claims) must prioritise compliance with their treaty obligations by ensuring that refugees are not returned to their countries of origin if such return would pose a threat to their well-being while also imposing pandemic health protocol measures. The least a state under these obligations can do is grant the refugee temporary admission until states take on greater collective responsibility to share the role of the protection of refugees.
III. General Methods to Evade Compliance
Mechanisms utilized by states to restrict the entry of asylum-seeking refugees do not only limit themselves to pandemics. Consider the track record of states that are parties to treaties containing a refoulement prohibition and refugee rights. Belgium in the 1990s had a ninety percent rejection rate of asylum-seekers at its borders and an extraordinarily high threshold of eligibility aimed at preventing illegal immigrants. These barriers were so severe that genuine refugees were discouraged from approaching the state through elaborate institutional mechanisms and preferred entering illicitly. Similarly, members of the European Union (EU) have imposed unrealistic visa requirements for states that produce refugees such as Romania, Sri Lanka, and Iraq. The Schengen Border Control (SBC) regulation which governs the border control of persons crossing the external borders of EU member states is silent on the definition of ‘refugees and persons seeking international protection.’ The effect of this is that refugees are assimilated into the general ‘third-country national’ category and are subjected to criterion under Article 6 of the SBC which include possession of valid travel documents and proof of their intention and ability to return to their country of origin prior to the expiry of their permitted duration of stay. Such conditions imposed on refugees whose documentation status and departure from the country often remains indeterminable, results in the pre-emptive gatekeeping of persons of specific nationalities and their right to seek asylum. The phenomenon of refugees irregularly moving from the country where they have received protection to seek permanent settlement or asylum elsewhere came about owing to the unavailability of long-term educational and employment opportunities that promote local integration and resettlement of refugees. The concept of “safe third country” was created to address the destabilising effect of such irregular movement on the organised international efforts to protect refugees but conveniently denies the vetting of asylum requests due to the mere fact of such a refugee having previously transited a country deemed safe. Germany’s policy is one such example that sent refugees back to the transit country without any verification of the existence of proper asylum procedures and protection of refugees.
The “non-suspensive effect” is another problematic mechanism by which states like Austria, France, and Sweden absolve themselves of the responsibilities of integrating refugees into their jurisdiction. The non-suspensive effect arises because refugees who appeal the decision denying them entry cannot remain in the country during the pendency of the appeal, and are therefore forced to remain illegally as their lives are threatened in their country of origin. States even go so far as to confine their interpretation of the definition of refugees to only include those facing persecution from the state, when reality many asylum-seekers face life-threatening danger from non-state agents such militant extremist groups. The currently unrecognised de facto Taliban government that effectively reoccupied Afghanistan in 2021 is just one example. Nowhere in Article 33 does the provision specify that the threat to the life and freedom asylum-seekers must emerge from state persecution alone. Such a restrictive understanding of the prohibition of non-refoulement is violative of a refugee’s right to seek asylum and find recourse in state parties to the convention. It is also inconsistent with the purpose of the Convention: to safeguard refugees’ rights.
State parties to the Convention bend their conduct to cater to versions of non-refoulement that favour their interests. This makes it crucial to ensure a level of compliance to prevent arbitrary violations of human rights. Before discussing whether the non-refoulement principle is an obligation erga omnes partes, it is essential to gain a clear understanding of the concept. In contrast to obligations erga omnes owed to the international community as a whole, obligations erga omnes partes are specifically confined to a group of states—typically state parties to a multilateral convention with a common interest. The common interest implies that violations of such obligations create a legal interest in all other state parties to ensure the protection of the associated rights.
IV. The Test to Establish an Erga Omnes Partes Obligation
In Belgium v. Senegal, the International Court of Justice laid down the test to determine whether an obligation is an obligation erga omnes partes. The Court must consider whether being a state party to the Convention is sufficient for a State to be able to bring a claim to the court regarding the violation of an obligation of the treaty. Determining whether an obligation constitutes an obligation erga omnes partes requires ascertaining first, the object and purpose of the treaty; second, that the state parties have a common interest in compliance with the obligations laid down by the treaty; and third, whether the particular obligation in question was incorporated to fill this purpose of the treaty as determined. We will now apply this test to the obligation of non-refoulement under the Refugee Convention.
First, the object and purpose of the Refugee Convention is to provide refugees with basic rights and freedoms. The Vienna Convention on the Law of the Treaties allows emphasis to be placed on the Preamble of a treaty whilst determining its object and purpose. Inspecting the preamble to the Refugee Convention, it declares that all state parties to the Convention must endeavour to assure refugees the exercise of their fundamental rights. The object and purpose of the Convention is hence to assure the widest possible exercise of fundamental rights and liberties of refugees through international cooperation. The adoption of this treaty was to guarantee the refugees these rights in human and equitable terms. Further, the Vienna Convention allows us to place reliance on the preparatory material to the convention. The Travaux Préparatoires of the Convention showed that there was a recognition that the foundation of the Convention is to place refugees on equal footing with the citizens of the countries of refuge. The intention of the Convention includes the will of the state parties to be bound by the principle of non-discrimination with reference to the treatment of refugees. The returning of a refugee to a nation where his life or freedom would be threatened on account of his race or religion would be equivalent to delivering him into the hands of his persecutors. We can thereby conclude that the object and purpose of the Refugee Convention is to provide refugees with their basic human rights and liberties.
Second, we must determine that state parties have a common interest in complying with the obligations laid down by the treaty. In Belgium v. Senegal, the International Court of Justice held that all parties to the Convention Against Torture have a “common interest” to comply with the obligation to prosecute alleged perpetrators of acts of torture even if the alleged torturer or victim have no connection with the state parties. These states can be said to have a “legal interest” in these erga omnes partes obligations. The obligations in question are owed to all parties of the convention. Applying the same reasoning to the Refugee Convention, states have a common interest in the protection of fundamental human rights thus including an interest to protect the fundamental rights and liberties of refugees. Human rights treaties are of such nature that a state has obligations to all state parties, notwithstanding their nexus to the State violating the treaty. This provides state parties with an obligation to call upon state parties and demand compliance. Human rights treaties are not concluded on the basis of reciprocity, instead they are “series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.” From this, one can conclude that all human right treaties are erga omnes partes in nature.
Further, the International Court of Justice has previously compared the provisions of the Convention Against Torture to the Convention of the Prevention and Punishment of the Crime of Genocide since in both conventions “the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.” The same is true of the Refugee Convention, where the common interest element is the protection of fundamental human rights for refugees. This common interest to ensure that any violator who does not abide by the objective of the refugee convention does not enjoy impunity directly implies that obligations under the Convention are owed by each state party to all the other state parties. Obligations created to protect the collective interest of a group of states are established with the intention of “transcending the ‘sphere of the bilateral relations of the State parties,’” thereby creating obligations of a multilateral nature.” The common interest in compliance with the relevant obligations of the Refugee Convention gives rise to the entitlement of each state party to the Convention to invoke the responsibility of another state to make a claim concerning the cessation of an alleged breach by another state party. Since no special interest is required for this purpose, the relevant obligations can be said to be of an erga omnes partes character.
Third, the obligation of non-refoulement can be incorporated to fulfil the purpose of the Refugee Convention. Obligations erga omnes partes are those obligations that are so integral to the subject and purpose of the treaty that no reservations or derogations are permissible. The Refugee Convention is underpinned by the fundamental principle of non-refoulement. Article 33 lays down this paramount obligation. And as per Article 42, no reservations or derogations are permissible to Article 33. It is so paramount that the UNHCR has noted that “the principle of non-refoulement is a norm of customary international law based “on a consistent practice combined with recognition on the part of nations that the principle has a normative character.” The principle of non-refoulement is the cornerstone of asylum and of international refugee law. As stated in Article 33, the Convention prohibits the return or expulsion of refugees (“refouler”) to a country where the refugee’s life or freedom is threatened. The party States to the 1951 Convention and the 1961 Protocol have acknowledged that “the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement,” as embedded in customary international law. The protection of the principle of non-refoulement is essential to defending the common interest of the exercise of basic fundamental rights as established in the Convention. If the principle is violated, there exists a “real and imminent risk of irreparable prejudice” of the values and interests advocated by the treaty.
The object and purpose of the Refugee Convention may be frustrated by a breach of this principle by any one state. The fundamental nature of non-refoulement as a cardinal principal has been reaffirmed by the Executive Committee of the UNHCR and the United Nations General Assembly. In 1980, the UNHCR Executive Committee [r]eaffirmed the fundamental character of the generally recognized principle of non-refoulement.’ Its 1991 conclusions reiterated ‘the primary importance of non-refoulement and asylum as cardinal principles of refugee protection’. The vitality of non-refoulement within the aegis of refugee protection has also been express by the United Nations General Assembly in multiple resolutions. The obligation of states to abide by the principle of non-refoulement and not send refugees back to the host nation when there exists danger to the refugee’s life is essential to fulfilling the aim of the Refugee Convention. Therefore, the principle is of the erga omnes partes nature insofar that all State parties ought to have a legal interest in others’ compliance with this obligation.
The proving of non-refoulement as an obligation erga omnes partes in the capacity of the Refugee Convention automatically mandates that any nation party to the convention may bring a nation in violation of this obligation to the International Court of Justice. It confers on state parties to the convention, therefore, an obligation to not turn away any refugees seeking aslyum. With this establishment, the enforceability of non-refoulement obligations is thus enhanced, enabling a better likelihood of the safeguarding of persecuted refugees’ rights in the tumultuous global socio-political landscape.
The Principle of Non-Refoulement Under International Human Rights Law, United Nations High Comm’r for Hum. Rts.,https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf .
 Convention Relating to the Status of Refugees 1951 Art 33, Apr. 22, 1954, 189 U.N.T.S 150.
 Id. at Art. 38.
 See Oona Hathaway, Covid-19 and International Law: Refugee Law- The Principle of Non-Refoulement, Just Sec. (Nov. 30, 2020), https://www.justsecurity.org/73593/covid-19-and-international-law-refugee-law-the-principle-of-non-refoulement/.
 See id.
 Greece: Investigate Pushbacks, Collective Expulsions. EU Should Press Athens to Halt Abuses, Hum. Rts. Watch (Jul. 16, 2020), https://www.hrw.org/news/2020/07/16/greece-investigate-pushbacks-collective-expulsions .
 See Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Advisory Opinion, United Nations High Commissioner for Refugees, (Jan. 26, 2007).
 See Hathaway, supra note 4.
 UNHCR Legal Considerations with Regard to the EU Commission´s Guidelines for Border Management Measures to Protect Health and Ensure the Availability of Goods and Essential Services, United Nations High Comm’r for Refugees (Mar. 18, 2020).
 See Hathaway, supra note 4.
 See Salvo Nicolosi, Non-refoulement During Health Emergency, EJIL: Talk! (May 14, 2020), https://www.ejiltalk.org/non-refoulement-during-a-health-emergency/.
 See Christiane Berthiaume, Measures Imposed by European Governments to Stem the Tide of Illegal Immigrants are Threatening the Very Foundations of Asylum, Refugees, 1 Sept. 1995, https://www.unhcr.org/en-in/publications/refugeemag/3b543cb84/refugees-magazine-issue-101-asylum-europe-asylum-under-threat.html .
 See id.
 Juan Fernando López Aguilar, Humanitarian Visas, Eur. Parliamentary Rsch. Serv. (Jul. 2018)https://www.europarl.europa.eu/cmsdata/150782/eprs-study-humanitarian-visas.pdf 19.
 Id at 20.
 See Conclusions Adopted by the Executive Committee on the International Protection of Refugees, United Nations High Comm’r for Refugees (Dec. 2009) https://www.unhcr.org/en-my/578371524.pdf 77
 See Nicolosi, supra note 13.
 See Ben Saul, “Recognition” and the Taliban’s International Legal Status, Int’l Ctr. for Counter-Terrorism (Dec. 15, 2021) https://icct.nl/publication/recognition-talibans-international-legal-status/.
 See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgement, 2012 I.C.J 422 ( Jul. 20).
 See id.
 See Vienna Convention on the Law of the Treaties art. 31, May 23, 1969, 1155 U.N.T.S 331.
 See Economic and Social Council Res. 1950/319 (Aug. 16, 1950).
 See U.N. ESCOR, 11th Sess., 158th mtg., U.N. Doc. E/AC.7/SR.158 (Aug. 15, 1950).
 See Vienna Convention on the Law of the Treaties, supra note 29.
 See Paul Weis, The Refugee Convention, 1951, The Travaux Préparatoires Analysed with a Commentary by the Late Dr. Paul Weis (1995).
 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.
 See H.R.C. General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004), ¶2; Dinah Shelton, The Oxford Handbook of International Human Rights Law 510 (2013); Walter Kälin and Jörg Künzli, The Legal Nature of Human Rights Obligations, in The Law of International Human Rights Protection (2d. ed., 2019) 86.
 See id.
 Jean S. Pictet, The Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: Int’l Comm. Of the Red Cross ed., 1958), comments on common Article 1.
 Erika de Wet, The International Constitutional Order 55 (Cambridge University Press ed., 2008).
 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, 1951 I.C.J. Rep 15, ¶ 23 (May 28).
 See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
 Linos-Alexander Sicilianos, The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility, 13 Eur. J. Int’ L. 1127, 1135 (2002).
 See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
 Vienna Convention on the Law of Treaties art. 19(c), May 23, 1969, 1155 U.N.T.S 331; Pok Yin Stephenson Chow, On Obligation Erga Omnes Partes. 52 Georgetown J. Int’l L. 469 (2020).
 Weis, supra note 33.
 Commentary on The Refugee Convention 1951 Articles 2-11, 13-37, United Nations High Comm’r for Refugees (1997).
 United Nations High Comm’r for Refugees, Note on the Principle of Non-refoulement, U.N. Doc EC/SCP/2 (23 August 1977).
 Refugee Convention 1951 art 33, Apr. 22, 1954, 189 U.N.T.S 150.
 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 Dec. 2001, U.N. Doc. HCR/MMSP/2001/09, (16 Jan. 2002).
 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Provisional Measures, 2017 I.C.J. Rep. 104, ¶ 63 (Apr. 19).
 UNHCR EC Conclusion No.79 ¶ (i) (1996); G.A. Res. 51/75, ¶ 3 (Feb 12, 1997).
 UNHCR EC Conclusion No.17 ¶ (b) (1980).
 UNHCR EC Conclusion No. 65 ¶ (c) (1991).
 See G.A. Res. 48/116, ¶ 3 (24 Mar., 1994); G.A. Res., 49/169 ¶ 4 (Feb. 24, 1995); G.A. Res. 50/152, ¶ 3 (Feb. 9, 1996); G.A. Res. 51/75, ¶ 3 (Feb. 12, 1997).
 See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.