By Ishita Chakrabarty
Ishita Chakrabarty is in the fourth year of her undergraduate study (BA LL.B (Hons.)) at Hidayatullah National Law University, India.
Back in the year 2007, Iraqi migrant families had been reportedly leaving Egypt en masse because of severe poverty arising from the government’s denial of their right to work . Over the past couple of months, the Trump Administration’s “zero tolerance” refugee policy has drawn a lot of flak from lawmakers inside and outside the country, press and human rights activists . Apart from the fact that refugees cannot be subjected to criminal prosecution and penalties simply because they happened to cross over illegally, the administration’s separation of children from their parents, even on the pretext of procedural necessities, serves an ulterior purpose of deterring migrants from seeking refugee status. Elsewhere in Asia, the slow-moving registration policies towards the Rohingyas staying in makeshift camps, without adequate living conditions, have exacerbated their vulnerabilities . These are all tactics that shroud ‘refoulement’ as mere ‘repatriation’.
This article has been written with the intention of analysing the content and scope of ‘constructive’ refoulement, through the lens of the several human rights conventions and through the Refugee Conventions. While doing so, it also touches on the fact that in spite of being the ‘special law’, refugee rights are essentially human rights
The concept of ‘constructive refoulement’ lies between the ‘voluntary repatriation’ of aliens and the state’s obligation to observe non-refoulement. Simply put, the principle of ‘non-refoulement’ (Article 33 of the Refugee Convention, 1951), forbids states from transferring individuals to territories where there are grounds to believe that they would be subjected to persecution. This position applies irrespective of the determination of the individual’s status by the state (to both asylum seekers and those that have been declared as refugees). The scope of rights is further enlarged under other human rights treaties and conventions to include deprivation of certain ‘fundamental rights’. The effect of the broadened scope is such that that the individual’s return to even a situation of ‘generalised violence’ without any specific (or individualized) fear of persecution, or ‘poverty’ and ‘destitute living conditions’, has been held enough to sustain his rights against the host state . Again, while the Refugee Convention allows for certain exemptions to refoulement such as national security, the human rights treaties allow no such derogation.
This right extends not merely to situations where the state directly engages in the transfer, but also where the state transfers the individual to an intermediate state that could potentially transfer the individual back to such country where his rights to non-refoulement stand to be violated (termed as ‘indirect’ or ‘secondary’ refoulement) .
Additionally, there are arguments in favour of a third kind of refoulement where the states create circumstances that leave an individual with no other alternative but that of returning, also termed as ‘constructive’ or disguised means of refoulement . However, certain states have previously questioned whether disguised expulsions are really forbidden under international law and the scope of such expulsions .
The International Law Commission (‘ILC’) Report, under Article 10 of the Draft Articles on the Expulsion of Aliens, notes that ‘disguised’ expulsion arises from any ‘omission’ on the part of the state . The question is, how far would a state be held liable for acts of private individuals within the territory that it is genuinely unable to control, which leads the individual to repatriate himself? Would the states be liable for their omission in assuring the economic, social and cultural rights (‘third generation rights’) of the asylum seekers, on account of such inability? These questions assume importance against the background of mass-influx situations, characterised by the increasing and rapid population of refugee arrivals and the inadequate capacities of the states to respond.
There would be marked differences between the aforementioned situations and those in which the state aims at deterring individuals from entering the country, such as Israel’s holding of asylum seekers at ‘open facilities’ with prison like conditions . While purely human rights treaties are usually interpreted through a ‘teleological’ approach, the refugee laws themselves contemplate a structure where the refugees are entitled to rights on the degree of attachment to the host state, such as physical presence, lawful presence and durable residence . Even at the end of the continuum, refugees are entitled to rights only to such extent as are enjoyed by the citizens of the host country.
This implies that when the host country itself suffers from situations of violence, or is unable to effectively control the acts of private actors, the return of refugees (due to an ‘omission’) should consequently not be held as a violation of the state’s obligations to observe non-refoulement. In fact, states confronted with situations of public emergencies are also authorised to withdraw all, barring the ‘core rights’ from the non-citizens. States should not be held liable for refoulement by virtue of mere speculation and in the absence of any objective standards through general recognition and acceptance of such obligations.
Furthermore, mere compulsion to return to a state is not refoulement. States are even allowed to deny entry at their borders or return incoming boats from the high seas, as long as it does not have the practical effect of returning persons to territories where they would be at a real risk of fundamental human rights violations . Thus, one should proceed to consider the liability of the state only after it is established that the individual had no other real alternative but to return to his country of origin.
However, the fact that states may not be held liable for the violation of the principle of non-refoulement does not imply that they may not have breached other substantive rights that are available to all individuals under their jurisdiction, such as the right to life, freedom from torture, cruel, inhuman, or degrading treatment or punishment, freedom from slavery, freedom of thought, conscience and religion, recognition as a person, freedom from ex-post facto criminal law (Article 4(2) of the Covenant on Civil and Political Rights).
Moreover, certain third-generation rights such as those of medical assistance, shelter and education, are fundamentally linked to the dignity of individuals and can therefore apply to all, including irregular migrants (migrants who do not possess any legal documentation or authorisation of entry and stay) . Even these rights have been couched in absolute terms under certain conventions and obligate states to assign greater priority to those who are vulnerable and at high risk .
States are also generally responsible for actions of private individuals where they fail to take adequate measures to protect individual human rights or provide justice. The burden of responsibility that the state shoulders is such that ‘inability’ or failure to stop private individuals could also be construed as ‘acquiescence . In one of the landmark judgements before the European Court of Human Rights (‘ECHR’), the court found violation of the substantive rights of the individual where the state had failed to provide adequate ‘reception’ conditions during the pendency of asylum-determination procedure .The court came to this conclusion on the basis of several factors, including that the individual lived for several months in a state of extreme poverty, without shelter and in a constant state of fear of being attacked and robbed and the feeling that his status would not get any better.
Thus, although a state might escape its liability under ‘constructive’ refoulement, it could still incur liability for breach of its obligations under general human rights instruments that apply to all individuals within its territory and over which it has jurisdiction. The question of how far a state would be liable, would depend upon the instruments that it has ratified. The practical effect of drawing a distinction between a state being liable for ‘disguised’ refoulement of an asylum seeker or refugee and that of violations of other human rights obligations would of course lie in the characterization of such violation.
 NGO Statement, Agenda Item 5a International Protection, 58th Executive Committee of the High Commissioner’s Programme, (April 9, 2019, 7:15 pm), https://www.unhcr.org/ngo-consultations/ngo-consultations-2007/ngo_statement_intprot_excom07.pdf.
HRW, Q&A: Trump Administration’s “Zero-Tolerance” Immigration Policy, (April 9, 2019, 7:00 pm), https://www.hrw.org/news/2018/08/16/qa-trump-administrations-zero-tolerance-immigration-policy.
 Asia Refugee Policy Analysis, (April 9, 2019, 7:30 pm), https://reliefweb.int/report/bangladesh/asia-refugee-policy-analysis.
 See, ECHR, June 28, 2011, Sufi and Elmi v. the United Kingdom, Application No. 8319/07 and 11449/07; ECHR, Jan. 21, 2011, M.S.S. v. Belgium and Greece [GC], Application No. 30696/09.
 ECHR, Feb. 23, 2012, Hirsi Jamaa and Others v. Italy, Application No. 27765/09; UN Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13, May 26, 2004, para. 12; Cordula Droege, Transfers of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges, 90 International Review of the Red Cross 871 (2008) p. 677.
 Walter Kälin, Martina Caroni and Lukas Heim, Article 33(1), in The 1951 Convention on the Status of Refugees and its 1967 Protocol: A Commentary 111 (Andreas Zimmermann ed., OUP 2011).
 ILC, Expulsion of Aliens: Comments and Observations Received from Governments, UN Doc. A/CN.4/669, Mar. 21, 2014; Committee against Torture, Written Submissions on the Draft Revised General Comment on the Implementation of Article 3 of the Convention in the Context of Article 22, www.ohchr.org/EN/HRBodies/CAT/Pages/Submissions2017.aspx.
 ILC, Expulsion of Aliens, UN Doc. A/69/10, May 5 - June 6, 2014, http://legal.un.org/ilc/reports/2014/english/chp4.pdf.
 Between Voluntary Repatriation and Constructive Refoulement: The Case of Asylum Seekers in Israel, (April 2, 2019, 8:00 pm), http://assaf.org.il/en/content/between-%E2%80%9Cvoluntary-repatriation%E2%80%9D-and-constructive-refoulement-case-asylum-seekers-israel.
 Statement of Mr. Rain of France, UN Doc. E/AC/32/SR.15, Jan. 27, 1950, at 15.
 ICRC, Reports and Documents, Note on migration and the principle of non-refoulement (2018) p. 9.
 HATHAWAY, J. C. (2005). The rights of refugees under international law. Cambridge [England], Cambridge University Press, 251; ECSR, Conclusions 2011, General Introduction, January 2012, para. 10, Statement of interpretation on Art. 17(2).
 Maastricht Guidelines, in Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, 24th Sess., U.N. Doc. E/C.12/2000/13, p. 20 (Oct. 2, 2000); General Comment 14, U.N. Committee on Economic, Social and Cultural Rights, E/C.12/2000/4, para. 47.
 HRC, Laureano Atachahua v. Peru, UN Doc. CCPR/C/56/D/540/1993 (1996).
 ECHR, Jan. 21, 2011, M.S.S. v. Belgium and Greece [GC], Application No. 30696/09.