Aspects of a State’s responsibility to protect refugees and the importance of the principle of non-refoulement.

Mini-dissertation for partial fulfilment of the requirements for the degree

Baccalaureus Legum at the North West University (Potchefstroom

Campus)

by

Lizl Loubser22134379

Module 425

Study Supervisor: Dr. Francois van den Berg

21 November 2014

INDEX

List of abbreviations.....................................................................................ii

1 Introduction.......................................................................................1

1.1 Research question............................................................................3

2 Basic principles.................................................................................3

2.1 Defining Refugees and their rights...................................................3

2.2 Non-refoulement...............................................................................4

2.3 The state’s responsibility to protect..................................................5

2.4 Why is the responsibility to protect necessary?................................6

3 Duties of States................................................................................7

3.1 Steps States must take to protect refugees......................................7

3.2 Duty to intervene..............................................................................8

3.3

3.1Collective responsibilities of States.......................................................8

4 Non-refoulement.............................................................................10

4.1 International position......................................................................10

4.2 South African position.....................................................................12

5 Recommendations..........................................................................15

6 Conclusion......................................................................................16

Reference List...........................................................................................18

i

List of abbreviations

CAT United Nations Convention Against Torture and Other Cruel

Inhumane, and Degrading Treatment of Punishment

CSR Convention relating to the Status of Refugees

ICCPR International Covenant on Civil and Political Rights

NGO Non-Government Organisation

UN United Nations

UNHCR United Nations High Commissioner of Refugees

ii

1 Introduction

International public law imposes a duty on states to receive and protect

refugees.1 This responsibility is contained in international instruments as

well as in South African rules of law. In certain circumstances, these

aspects can be affected by problems that may arise as well as

uncertainties concerning this responsibility.2

The obligation to protect refugees is framed more negatively than

positively in that, states have the obligation not to return refugees to the

county they fled from rather than the obligation to admit refugees who

fear persecution.3 The prevailing view, supported by the United Nations

High Commissioner for Refugees (UNHCR), is that the responsibility for

the care of asylum seekers and refugees and the determination of their

claims fall on the state within whose jurisdiction the claim is made.4

There are various reasons for which people would be fleeing their

countries such as urbanisation, climate change and natural disasters,

statelessness, poverty etc. and in correlation with these reasons are

certain duties that are imposed on states to protect refugees and not to

have them sent back to the state from which they fled while their

fundamental rights are still at risk (non-refoulement). Non-refoulement

will be the main climax of this dissertation as I am of the opinion that it is

the most important duty to comply with, because all the other duties that

may be imposed on a state would have no meaning if states could just

refuse refugees and send them back to their country and to their own

detriment.

Goodwin-Gill and McAdam5 highlights the importance of State’s

obligation to “exercise care in their domestic affairs in the light of other

1 McAdam Complementary Protection in International Refugee Law 30.2 Goodwin-Gill and McAdam The Refugee in International Law 296.3 Nicholson and Twomey Refugee Rights and Realities 3.4 Guild et al “Current Challenges for International Refugee Law, with focus on EU Policies and EU co-operation with UNHCR” EXPO/DROI/2012/15 – 2.5 Goodwill-Gill and McAdam The Refugee in International Law 3.

1

States’ legal interests, and to cooperate and to cooperate in the solution

of refugee problems” and this coincides with the general principle of

international cooperation where states have to work together and assist

each other in the removal or mitigation of the “causes of flight” and

helping refugees if and when they want to return to the country of their

nationality.6 These writers also state that “cross-border movements of

refugees trigger legal principles like protection and non-refoulement, or

activate the institutional responsibilities of organisations such as the

UNHCR.”7

Nicholson and Twomey8 pointed to Goodwin-Gill’s mention of a state’s

role in the protection of refugees by naming his key functions of a state’s

obligation to respect the principle of non-refoulement, a state’s protection

obligation in respect of admission and treatment of refugees and also the

importance of states to co-operate in the resolution of any problems that

may emerge alongside these duties.

In the dissertation I will set out a framework regarding the different

obligations states have towards refugees by discussing the more

important duties regarding the dissertation more thoroughly as well as

where states fall short in complying with these obligations as well as

referring to recommendations made by various institutions in order to

prevent any kind of shortfall or to remedy it.

The framework will include the definitions of all important terms that will

be used and the question surrounding the importance of a state’s

responsibility will also be discussed before turning the focus on the

different duties.

6 Goodwill-Gill and McAdam The Refugee in International Law 3.7 Goodwill-Gill and McAdam The Refugee in International Law 5.8 Nicholson and Twomey Refugee Rights and Realities 264.

2

1.1 Research question

In this dissertation I will be investigating the different aspects of a state’s

duties to protect refugees, the international and South African position

on the principle of non-refoulement and determine whether there are any

shortcomings or failures and if there are how to remedy it or prevent it.

2 Basic principles

Before continuing with the dissertation it is impervious that all the basic

principles are discussed, defined and understood.

2.1 Defining Refugees and their rights

Article 1(A)(2) of the Refugee Convention of 1951 defines a refugee is a

person who,:

(A)s a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

According to Article 1 of the Convention individuals aren’t considered

refugees if they willingly re-availed themselves of the protection of the

country of their nationality, persons who volutarily reacquired his

nationalities or acquired a new nationality and enjoys that country’s

protection, if an individual committed a crime against peace, against

humanity or a war crime or if the threat of persecution in country from

which he fled no longer exists, and many more contained in the Articles.9

9 Article (1)(C)(1) to (1)(F)(c) of the CSR of 1951.

3

Refugees are among the most defenceless people in the world and

therefore the 1951 Refugee Convention and its 1967 Protocol was

promulgated in order to guard their interests and rights. Approximately

150 states are party to either one or both of these instruments and

therefore have the duty to extend their full support towards refugees

where it is so necessary.10

The common reasons why refugees flee their countries are when their

country of nationality fail in their responsibility to protect the interests of

their citizens and it is usually related to politics and discrimination,

therefore the international community take certain steps to ensure their

safety.11

Refugees have several rights under the Refugee Convention of 1951

such as the right not to be expelled, except under certain strict

conditions,12 the right to housing,13 the right to access the courts,14 the

right not to be punished for illegal entry into the territory of a contracting

State,15 the right to education,16 the right to freedom of movement within

the territory,17 the right to be employed,18 the right to freedom of religion19

and the right to be issued with identity and travel documents.20

2.2 Non-refoulement

The principle of non-refoulement refers to the right a refugee has not to

be sent back to the country from which he fled and where he is likely to

suffer from persecution and where any of his fundamental rights would

be violated as a result. This right is expressly stated in human rights

10 Guterres 2011 www.unhcr.com 11 Guterres 2011 ww.unhcr.com12 Article 37 of the CSR of 1951.13 Article 21 of the CSR of 1951.14 Article 16 of the CSR of 1951.15 Article 31 of the CSR of 1951.16 Article 22 of the CSR of 1951.17 Article 26 of the CSR of 1951.18 Article 17 to 19 of the CSR of 1951.19 Article 4 of the CSR of 1951.20 Articles 27 and 28 of the CSR of 1951.

4

treaties such as Article 3 of the Convention Against Torture21 and Article

22(8) of the American Convention on Human Rights.22 This principle

along with the mass expulsion of refugees will be discussed later in this

dissertation.

2.3 The state’s responsibility to protect

The responsibility to protect is recently described as a developing

obligation to prevent people from mass atrocity crimes against them.23

The Responsibility to Protect stipulates that:24

The State bears the primary responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and that this responsibility entails the prevention of such crimes and violations as well as their incitement.

The international community on the other hand has the responsibility to assist and encourage the state in fulfilling its protection obligations. The international community also has the responsibility to take appropriate diplomatic, humanitarian, and other peaceful means to help protect populations from these crimes. The international community must also be prepared to take collective action, in a timely and decisive manner, in accordance with the UN Charter, in a case-by-case basis and in cooperation with the relevant regional organisations.

The first question that comes to mind when addressing the responsibility

of a state to protect refugees is, what is the objectives of this

responsibility?

Refugees are placed in a difficult and vulnerable situation once their

safety net in their country of nationality disappears because their

government threatens to persecute them. If other countries do not offer

them help then those countries may be condemning their threatened

population to an intolerable situation where their basic rights, security

and, in some cases, their lives are in danger.25

21 CAT of 1984.22 The American Convention on Human Rights of 1969.23 Massingham 2009 IRRC 803.24 Toolkit on the Responsibility to Protect 2014 www.responsibilitytoprotect.org25 Taggart Date Unknown www.unhcr.org/pages/49c3646cc8.html

5

Because of these dangers, the International Coalition Responsibility to

Protect brought all the NGOs from all the regions of the world together in

order to strengthen normative consensus for responsibility to protect to

push for strengthened capacities to prevent and halt genocide, war

crimes, ethnic cleansing, and crimes against humanity and to enable the

NGOs to act and save lives in country-specific situations.26

Returning refugees back to the country from which they fled would be

opposite to the responsibility of protecting and therefore contrary to the

purpose of The Refugee Convention of 1951, as the drafters of this

convention clearly did not have the intention that countries should send

refugees back that country in order to face the very persecution from

which they fled.27

2.4 Why is the responsibility to protect necessary?

Because of past atrocious crimes against humanity, such as the

genocide in Rwanda, Liberia and Sierra Leone, it has become essential

for the international community to take steps to protect the victims of

such crimes and to take all necessary steps to affect their safety. By

promulgating all the conventions such as the Refugee Convention, the

Convention against Torture and the UN Charter on Human Rights the

international community has started to move in a positive direction in

prevention of future gross human rights abuse. The responsibility to

protect is a principle, which seeks to ensure that the international

community never again fails to act in the face of genocide and other

gross forms of human rights abuse.28

26 Toolkit on the Responsibility to Protect 2014 www.responsibilitytoprotect.org 27 Goodwin-Gill and McAdam The Refugee in International Law 204.28 Parliamentary Hearing at the United Nations 2008 www.ipu.org/splz-e/unga08/s1.pdf

6

3 Duties of State’s

International instruments and foreign law places obligations on states to

protect refugees and there are various guidelines and provisions in place

that prescribe the manner in which this may and may not be done.

3.1 Steps States must take to protect refugees

The basis of this principle is centred on the cooperation of states to

prevent and fight against crimes against humanity as well as the

importance of outsiders to help states to prevent or fight these gross

crimes through what the UN document defines as “diplomatic,

humanitarian, and other peaceful means.” There are several ways to

strengthen state ability to fight against this which includes the economic

assistance of other states, rule-of-law reform, the building of political

institutions and direct acts of mediation when it seems that these crimes

have already begun. After the diplomatic intervention which followed the

controversial election in Kenya, or the work of neighbouring states along

with the UN to serve as a foundation for the government of Burundi, both

these examples illustrate the absolute necessity of cooperation between

states to prevent atrocities.29

Another step that can be taken when people are threatened with

persecution is military intervention, however, there are some

precautionary measures that need to be examined. Before the

international community or other states can intervene in another state’s

affairs, they must be sure that they have the right intentions in mind and

only when there are no other alternatives. This means that the

interventions must be proportionate to the crimes that have been

committed and that the possibility of a favourable outcome is practically

29 Parliamentary Hearing at the United Nations 2008 www.ipu.org/splz-e/unga08/s1.pdf

7

possible. It is important to recognize that this authority to intervene

should, in mostly come from the UN Security Council.30

3.2 Duty to intervene

Whether states have the duty to intervene when it comes to light that a

government of another country commit gross crimes against humanity is

a topic of great debates and controversy. The responsibility to protect

does not technically provide that a state has the right to intervene in

other states’ affairs, but it does guarantee that people must be protected

from anything that may cause them to fear persecution and any

violations against any principles set out under the principles of the

responsibility to protect. The international community has the

responsibility to assist states in the protection of people and must take

immediate action if states can’t protect refugees or populations or refuse

to do so.

Military intervention may also be guised as humanitarian intervention

which would be when action is taken without the consent or cooperation

of the host country and is also not authorized by the UN Security Council

and is not done with the approval of neighbouring states. This principle

of humanitarian intervention highlights the limits of the UN Charter with

regards to the provisions on when and how a state may respond and

protect people affected by gross crimes against them. Contrary to

humanitarian intervention, military measures may only be employed

under demand of the UN Security Council and only when alternative,

less violent or more isolated means did not suffice.31

3.3 3.4Collective responsibilities of States

30 United to end genocide 2005 http://endgenocide.org/learn/responsibility-to-protect/

31 Toolkit on the Responsibility to Protect 2014 www.responsibilitytoprotect.org

8

The Amsterdam Centre for international law held a seminar regarding

the collective responsibility of states in international law regarding

changing the assignment of actions to different states with regards to

contributing to different international violations.32 In this seminar the

international refugee protection was discussed with regards to the

collective responsibility of the UN High Commissioner for Refugees and

its partner states to protect refugees and fight against these violations as

well as solutions for the various refugee problems such as the fact that

the sharing of these responsibilities are unevenly allocate, but this will be

discussed later.

The main reason why it is so important for states to share the

responsibility to protect refugee is to lighten the burden of mass influx.33

Mass influx refers to situations where large groups of people flee from a

country when they are discriminated against with regards to their “race”,

“religion” or any other crime against humanity, to another country. It

must, however, be noted that “mass influx” is not a legal term, but only a

mere description.34 This mass displacement results in the overburdening

of states which will be discussed in 4.2.35

Even though there are debates surrounding the possibilities of sharing

the burden of this obligation as well as what this principle exactly entails,

Zieck36 referred to and observation that Fowler37 made in the Human

Rights Journal by stating:

The functions assigned to UNHCR in its Statute are accordingly of an indirect nature and wholly geared to supporting the allocation of responsibility for the protection of refugees to individual states. It was emphasized by the General Assembly that responsibilities for care and maintenance as well as for resettlement would have to be borne by

32 Swerissen 2012 “Shared Responsibility in International Refugee Law” 2.33 Swerissen 2012 “Shared Responsibility in International Refugee Law” 8.34 Phuong Identifying States’ Responsibilities towards Refugees and Asylum

Seekers 7.35 See par 4.2 below.36 Zieck Snakes In Ireland: Questioning The Assumption Of ‘Collective

Responsibility’ To Protect Refugees 3.37 Fowler 1974 HRJ 119-144

9

those governments in whose territories the refugees found themselves.

Even though the UN Declaration on the Rights of Individuals who are not

Nations of the Country in which they live38 provides that collective

expulsion (expulsion of a large group of people at a time) is prohibited.39

4 Non-refoulement

As was previously mentioned the principle of non-refoulement is based

upon the fact that states must refrain from sending refugees back to the

states from which they fled in fear of persecution. The international

instruments and South African position will now be discussed.

4.1 International position

The principle of non-refoulement is found in several international

instruments with several different positions and viewpoints.40 One of the

most important conventions regarding refugees, their rights and the

obligations of states to protect these interests is the Convention relating

to the Status of Refugees of 1951 and it is supported by the Declaration

on Territorial Asylum of 1967 and the United Nations Convention

Against Torture and Other Cruel Inhumane, and Degrading Treatment of

Punishment of 1984 to some extent.

First and foremost is the Convention relating to the Status of Refugees

of 1951 which states in Article 33 that no signatory state shall ‘expel’ or

‘return’ a refugee back to the territory where his life or freedom would be

threatened.41 This provision is also exactly stated in the Convention

Against Torture and Other Cruel Inhumane or Degrading Treatment or

Punishment in Article 342 and the UN Human Rights Convention provides

38 (1985) UN Doc A/40/53, art 7.39 Weissbrodt The Human Rights of Non-citizens 57.40 Weissbrodt The Human Rights of Non-citizens 59.41 Article 33(1) of the CSR of 1951.42 Article 3 of the CAT of 1984.

10

any refugee who has been expelled arbitrarily may have his case

reviewed by a competent authority.43 In the case of Conka v Belgium44

the applicants were four nationals of Slovakia, they sought political

asylum in Belgium on the ground that they were victims of constant

attacks by Slovakian skinheads, their application for asylum however

was denied as they apparently did not provide enough evidence to prove

that their lives were at risk in accordance with the terms set out in the

Convention relating to Status of Refugees and was therefore expelled

from Belgium shortly after arrival, the European Court of Human Rights

found that this decision and how it was carried out was contrary to the

principles in the European Convention for the Protection of Human

Rights and Fundamental Freedoms and, as a signatory state, against

that the Convention relating to the Status of Refugee.45 However, all

these rights will only apply to a person with the status of a refugee as

defined in the Act.46

The Convention relating to the Status of a Refugee47 states that a person

does not fall under the definition of a refugee; a person shall not be

deemed to be a refugee if they are at present receiving any protection or

assistance form organs or agencies other than the UN or the UNHCR,48

or if such a person who has rights or obligations attached to the

nationality of that country49 or if he has committed any crimes against

peace, humanity or war crimes as defined in the international

instruments;50 or if he has committed non-political crimes outside of the

country of refuge before admission51 or has committed acts contrary to

the purposes and principles of the UN.52

43 Article 13 of the ICCPR of 1976.44 Conka v Belgium (2002) App No 00051564/99, Eur Ct HR.45 Weissbrodt The Human Rights of Non-citizens 58.46 Article 1(A)(2) of the CSR of 1951.47 Article 1 of the CSR 1951.48 Article 1(D) of the CSR 1951.49 Article 1(E) of the CSR 1951.50 Article 1(F)(a) of the CSR 1951.51 Article 1(F)(b) of the CSR 1951.52 Article 1(F)(c) of the CSR 1951.

11

There is always an exception to every rule and the rule of non-

refoulement does not deviate from this. There are various exceptions to

this rule and the first to discuss is the exception found in Article 32 of the

Convention relating to the Status of refugees which states that: “The

expulsion of such a refugee shall be only in pursuance of a decision

reached in accordance with due process of law.”53 Article 1(F)54 and

Article 3355 of the Convention relating to the Status of Refugees provides

further exceptions in that it states that a person who has committed

certain crimes or who poses a threat to the national security of the

country may not claim the benefit of non-refoulement principle.56

4.2 South African position

After the occurrence of apartheid, South African legislation was in

desperate need of repair and the moment South Africa signed the

Conventions and Protocols (1991) relating to the Status of Refugees, the

right of non-refoulement immediately applied to it and in 1998 the

Republic made provisions for these rights and this principles in the

Refugees Act57 and other regulations. Proof of the necessity these

regulations was emphasised in the case of Union of Refugee Women v

Director: Private Security Industry Regulatory Authority and Others,58 the

Constitutional Court emphasised that “during the liberation struggle

many of those who now find themselves among our country’s leaders

were refugees themselves, forced to seek protection from neighbouring

states and abroad.”

This right for, people who seek refuge in South Africa is set down in

Section 21(4) of the Refugees Act59 which states that “notwithstanding

53 Article 32(2) of the CSR 1951.54 Article 1(F) of the CSR 1951.55 Article 33 of the CSR 1951.56 Rodger 2001 http://www.refugee.org.nz/JessicaR.htm#1 Justifications and57 130 of 1998.58 Union of Refugee Women v Director: Private Security Industry Regulatory

Authority and Others 2007 (4) SA (CC) Para 30.59 130 of 1998.

12

any law to the contrary, no proceedings may be instituted or continued

against any person in respect of his or her unlawful entry into or

presence within the Republic if such person has applied for asylum in

terms of subsection (1), until a decision 35 has been made on the

application and, where applicable, such person has had an opportunity

to exhaust his or her rights of review or appeal in terms of Chapter 4;60 or

if such person has been granted asylum.61

Regulation 2(2) of the Refugees Regulations states:62 “Any person who

entered the Republic and is encountered in violation of the Aliens

Control Act, who has not submitted an application pursuant to sub-

regulation 2(1), but indicates an intention to apply for asylum shall be

issued with an appropriate permit valid for 14 days within which they

must approach a Refugee Reception Office to complete an asylum

application.” These two provisions both support the principle of non-

refoulement in South Africa and is interrelated to the application process.

These two provisions regulate the application process of refugees and

asylum seekers and in the High Court case of Kiliko63 it was decided that

the Department of Home Affairs has a duty to provide adequate facilities

essential for an expeditious handling of applications for asylum-seeker

permits.64

Section 2 of the Refugee Act states that no person may be refused entry

into the Republic, expelled, extradited or returned to any other country if

it led to that person being subjected to persecution on account of his or

her race, religion, nationality, political opinion or membership of a

particular social group;65 or where his or her life, physical safety or

freedom would be threatened on account of external aggression,

occupation, foreign domination or other events seriously disturbing or

60 Section 21(4)(a) of the Refugees Act 130 of 1998.61 Section 21(4)(b) of the Refugees Act of 1998.62 Regulation 2(2) of the Refugee Regulations and Procedures of 2000.63 Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C).64 Dugard International Law: A South African Perspective 361.65 Section 2(a) of the Refugees Act 130 of 1998.

13

disrupting public order in either part or the whole of that country.66 This

section along with the others is proof that South Africa’s refugee

legislation is correlated with the international instruments that revolve

around the same principle.

There are still complications regarding the principle of non-refoulement

in South Africa, because the fine line between deportation and

refoulement that haven’t been resolved yet. The question that can be

raised is; what is the difference between deportation and refoulement

and when does one cross the line from following the non-refoulement

principle in South Africa that would qualify for deportation.

A non-citizen who has entered South Africa unlawfully may be deported

or expelled, but if such a person fled to the country in fear of persecution

then he may not be deported under the laws of South Africa.

The way to answer the question of when this applies one must look at

what it means to “fear persecution”. According to Dugard67 it is clear that

there is no definition for the fear of persecution and therefore it must be

determined case-by-case, by weighing the interests and human dignity

of the person in question, and the extent and manner in which that

person may be injured.

In Fang v The Refugee Board and Others68 a Chinese national

application for refugee status was denied because the court believed

that he did not have ‘well-founded’ fear of persecution. According to the

court, two separate components must be determined; a subjective one

and an objective one. To determine a subjective fear the court had to

look at the impact that the events had on the person and how he

experienced them and the objective fear will be determined by

considering the events are of such nature that it will be reasonable for a

person to experience fear.66 Section 2(b) of the Refugees Act 130 of 1998.67 Dugard International Law: A South African Perspective 354.68 Fang v The Refugee Board and Others 2007 (2) SA 447 (T).

14

The question of the definition and meaning of persecution arose in

Pitcherskaia v INS.69 The court held that the meaning of persecution was

objective, because it determines whether what the reasonable person

would experience as fear and not the subjective approach which

determines the intent of the person who inflicted the fear.70

These two cases are perfect examples of the unbalanced approach to

determine when refoulement may take place.

5 Recommendations

There are several measures that have been developed in order to

prevent, halt, overcome and rehabilitate crimes against humanity as well

as the various problems that influences the protection of refugees.

The International Coalition for the Responsibility to Protect started by

implementing “Upstream Prevention” which involves internal actions

states must take in order to prevent crimes that could lead to persecution

and the “Downstream Prevention” which refers to when states must

respond imminent threats of these mass atrocities and can involve

economic, political, humanitarian, or military response. 71 These steps

can be taken by the international community or its signatory states.

Following the tragedy in Rwanda72 in 1998 international community

started to take a closer and started to investigate more seriously the acts

and crimes against humanity and how it affects the human rights.

When the International Crisis Group approached situations where

intervention or any obligations towards other states and people were

necessary they looked at whether the action that was debatable would 69 Pitcherskaia v INS 118 F 3d 641 (9th Cir 1997).70 Dugard International Law: A South African Perspective 355.71

Background Information on the Responsibility to Protect 2014 http://www.un.org/en/preventgenocide/rwanda/about/bgresponsibility.shtml

72 Rwanda: How Genocide happened 2008 http://news.bbc.co.uk/2/hi/1288230.stm

15

be in context with the crime committed, for instance just cause in large

scale loss of large scale loss of life and how such an act or result came

to be and that military intervention should only be used as a last resort

and all other options must already be exhausted.73

The international community along with its signatory states and NGOs

should work together to find a safe and secure places for refugees to

settle. D’Angelo74 argues that integrative tactics are necessary to

accomplish this goal which would mean that the international community

along with the NGOs combine their resources and contribute as much as

they can to countries which lack such resources to accommodate

refugees and also implores and individual states to actively take part in

the reception and safekeeping of refugees.

The fact that a refugee is not under a certain country’s protection does

not preclude that country from protecting the interests and rights of that

refugee. It will always remain the duty of the international community to

ensure that the people within countries rights are always protected.75

6 Conclusion

States have responsibilities bestowed on them by international and

national instruments to protect refugees from persecution and to prevent

refoulement. If the principle of refoulement is violated then the refugees’

human rights will be in danger and they may suffer dire consequences.

States have the obligation to protect refugees who flee to their country in

fear of persecution and may not send them back to that country. South

Africa fully supports this principle and has legislation that supports the

international instruments which provides for such protection.

73 United to End Genocide Date Unknown http://endgenocide.org/learn/responsibility to protect/74 D’Angelo 2009 VJTL 312.75 Chambo The Principle Of Non-Refoulement In The Context Of Refugee Operation In Tanzania 44.

16

As determined by the dissertation every duty that is imposed on a state

comes with the possibility of that state failing to fulfil that obligation.

There will always be differences in opinions and there may be times

when these principles will not be applied according to the necessary

provisions that is why courts must look at every case separately and

work together with the international community to prevent the violation of

the rights of refugees.

The principle of non-refoulement has deep roots in international

instruments and must be adhered to in all situations where countries

commit crimes against such persons of such nature that it constitutes as

a justification for a person to qualify as a refugee.

According to Weissbrodt76 the refugee regime is at risk because there

are major theats which include the failure of developed countries to

share the burden and caring for refugees. From 1992 to 2001 developed

countries hosted less than 30% of the world’s refugees even though

these countries and the best resources to protect refugees. The

equitable distribution and burden-sharing of refugees is a practical

necessity, because developing countries which host most of the world’s

refugees which can’t meet the needs of refugees fleeing from serious

human rights abuses.

In this dissertation I have not only discovered various shortcomings and

failures regarding the responsibility of a state to protect refugees and the

holes in the principle of non-refoulement, but I have also uncovered

ways to remedy these shortcomings and failures as well as ways to

prevent it in order to overcome any future problems. However, in order

for any solutions or preventions to have a positive effect all states must

work together to solve the problem collectively and in accordance with

the principles of international cooperation and non-refoulement.

REFERENCE LIST76 Weissbrodt The Human Rights of Non-Citizens 178.

17

Literature

Chambo JA The Principle Of Non-Refoulement In The Context Of Refugee Operation In Tanzania (LLM-dissertation UP 2005)

D’ Angelo EF “Non-Refoulement: The Search for a Consistent Interpretation of Article 33” 2009 VJTL 312-315

Dugard J International Law: A South African Perspective (Juta Cape Town 2011) Fanslow RA The Migrant Experience (American Folklife Centre Library of Congress 1998)

Fowler “The Developing Jurisdiction of the United Nations High Commissioner for Refugees” 1974 HRJ 119-144

Goodwin-Gill GS and McAdam J The Refugee in International Law (Oxford University Press New York 2007)

Massingham E “Military intervention for humanitarian purposes: does the Responsibility to Protect doctrine advance the legality of the use of force for humanitarian ends” 2009 IRRC 803

McAdam J Complementary Protection in International Refugee Law (Oxford University Press United Kingdom 2007)

Moore P “The Mixed Results of International Intervention: The Legacy of R2P in Libya” 2013 ACMM 29

Nicholson F and Twomey P Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press United Kingdom 1999)

Poptcheva E 2014 EPRS 1

Tan K “The Duty to Protect” 2005 NOMOS 1-2

Weissbrodt DThe Human Rights of Non-citizens (Oxford University Press New York 2008)

Zieck M Snakes In Ireland: Questioning The Assumption Of ‘Collective Responsibility’ To Protect Refugees (Amsterdam Law School Legal Studies Research Paper 2011)

Case Law

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Conka v Belgium (2002) App No 00051564/99, Eur Ct HR.Judge v Canada, Communication No.829/1998, U.N.Doc. CCPR/C/78/D/829/1998 (2003)

Fang v The Refugee Board and Others 2007 (2) SA 447 (T)

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C)

Pitcherskaia v INS 118 F 3d 641 (9th Cir 1997)

Union of Refugee Women v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA (CC)

Legislation

The Refugees Act 130 of 1998

The Refugee Regulations and Procedures of 2000

International Instruments

Guild E, et al “Current Challenges for International Refugee Law, with focus on EU policies and EU co-operation with UNHCR” (Published contribution delivered in European Parliament Conference EU Policies and EU co-operation with the UNHCR December 2013) EXPO/DROI/2012/15 – 2

Phuong C Identifying States’ Responsibilities towards Refugees and Asylum Seekers (ESIL Research forum paper 2005)

The American Convention on Human Rights (adopted 1969) OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM

The Convention relating to the Status of Refugees (adopted 1951) A/RES/21/2198

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 1984) A/RES/39/46

The United Nations Declaration On The Human Rights Of The Individuals Who Are Not Nations Of The Country In Which They Live GA res. 40/144, annex, 40 UN GAOR Supp (No 53), (1985) UN Doc A/40/53 art 7

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Internet Sources

Background Information on the Responsibility to Protect 2014 Outreach programme on the Rwanda genocide and the United Nations http://www.un.org/en/preventgenocide/rwanda/about/bgresponsibility.shtml

Evans G and Sahnoun M 2001 Responsibility to Protect responsibilitytoprotect.org/ICISS%20Report.pdf accessed 18 May 2014

Guterres A 2011 The 1951 Convention and its 1967 Protocol www.unhcr.com accessed 15 June 2014

Parliamentary Hearing at the United Nations about the Responsibility to Protect 2008 Why do we need the Responsibility to Protect www.ipu.org/splz-e/unga08/s1.pdf accessed 22 July 2014

Rodger J 2001 http://www.refugee.org.nz/JessicaR.htm#1 Justifications and accessed 17 September 2014

Rosenberg J 2003 Rwanda Genocide: a Short History http://history1900s.about.com/od/rwandangenocide/a/Rwanda-Genocide.htm accessed 7 May 2014

Rwanda: How Genocide happened 2008 http://news.bbc.co.uk/2/hi/1288230.stm accessed 8 May 2014

Toolkit on the Responsibility to Protect 2014 http://www.responsibilitytoprotect.org accessed 8 May 2014

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SOLEMN DECLARATION: ASSIGNMENTS AND PAPERS

I, the undersigned ………………………………………(initials and

surname), ………….…..….....…….(university number )

Hereby solemnly declare that:

1. I know that it is wrong to copy (that is to „copy and paste‟ or simply

write over) any text (that is any sentence, paragraph or longer texts)

from a text book, journal, study guide, prescribed study material, from

the internet or from text that was written by another student or by any

other person and then to present it as my own work, even if I do refer to

the source in the bibliography.

2. I also know that it is unacceptable to copy parts of text here and there

in my assignment or paper and that I am not allowed to make use of the

exact wording of another text, even if I add my own words here and

there or rearrange the sequence of the copied text.

3. I understand that I must use texts as sources in the sense that I have

to interpret the principles discussed in the text, describe it in my own

words and then answer the question asked.

4. I know that an instruction to use additional sources does not mean

that I may copy any other source or text word for word.

5. I understand that I may use short quotations but that I am then

required to clearly indicate the text as a quotation, in accordance with

the house style of the faculty. This is the only legitimate way in which I

may use the exact wording of another text in an assignment and paper.

6. I know that I have to substantiate any factual allegation by referring to

an applicable source. I must also acknowledge the origin of any idea or

opinion I refer to in my paper or assignment, if it was originally

formulated by anyone else.

7. I know that I have to make use of footnotes throughout my assignment

and paper to refer to my sources and that I have to list all sources in the

bibliography.

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8. I know that I may only include sources in the bibliography if I have

read them myself. If author X refers to another book or article by author

Y and I have only read the article by X, not the article or book by Y, I

may not include the article or book by Y in my bibliography. The same

applies to any legislation or cases the authors refer to.

9. I know that I am guilty of academic dishonesty and a contravention of

the rules of the NWU whenever I: a.) Do not act in accordance with the

principles set out above. b.) Make my own work available to another

person, thereby enabling that person to copy my work or to use it to

complete his or her assignment or paper. c.) Submit a memorandum that

I have in my possession, as my assignment, thus presenting it as my

own intellectual effort. d.) Present anybody else’s work as my own,

regardless whether the real author of the work is a previous or current

student, a student at another university or anybody else. It also does not

matter whether this person completed the assignment on my behalf on

my request or instructions or not. e.) Present my own work as the work

of somebody else or allow that my work be presented as the work of

anybody else.

10. I know that a lack of time, a busy schedule, peer pressure,

committee commitments, sport commitments, tradition or personal

circumstances will not be a defence on a charge of academic

dishonesty.

11. I know that disciplinary steps will be instituted against me if there is a

suspicion that I may have acted dishonesty as described in this

declaration. 12. I further realise that I may jeopardise my own future

career as a jurist if I am found guilty of academic dishonesty. Any such

finding will appear on my university record.

……………………………………… ……………………………

(Signature) (Date)

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