Expert Report on Non-Refoulement as a Principle of Customary International Law

Area of Law: Public International Law; International Refugee Law; International Human Rights Law

Expert: Marie Demetirou KC, Brick Court Chambers

Marie Demetriou KC, a specialist in human rights, asylum and immigration from Brick Court Chambers, was invited by the Plaintiff's solicitors to assist in a case filed in the High Court of Kuala Lumpur, Malaysia, involving Mohamed Khairuzzaman and the Government of Malaysia to provide a legal opinion on whether the principle of non-refoulment has attained the status of customary international law.

The principle of non-refoulement is enshrined in numerous treaties, sharing a fundamental core despite being expressed in slightly different terms across various instruments. It prohibits the return of individuals to situations where they face serious human rights violations, unless the risk is deemed insufficient. This principle can be said to have evolved into customary international law (CIL) as substantial evidence of "State practice" and "opinio juris" exists, fulfilling the test laid down by the International Court of Justice for a principle to qualify as CIL .

State practice can take various forms, including diplomatic acts, treaties, executive conduct, legislative acts, and court decisions. For a principle to be recognized as customary international law (CIL), State practice must be widespread and consistent, though not necessarily uniform or universal. Evidence of State practice for the principle of non-refoulement can be seen in the widespread adoption of the 1951 Refugee Convention, with 146 countries being party to it, and its incorporation into domestic law by at least 125 States. Additionally, the principle of non-refoulement is included in multiple international instruments, such as the ICCPR, ECHR, CAT, the International Convention for the Protection of All Persons from Enforced Disappearance, and the African Refugee Convention. These treaties have been ratified by a significant number of States, further supporting non-refoulement's status as customary international law. Regional initiatives, such as in Latin America, Africa, Asia, and the Middle East, further reinforce the principle’s widespread acceptance.

Opinio juris also dictates that the principle of non-refoulement has been accepted to be CIL. UNHCR has noted that even States that are not party to the Refugee Convention have often recognized and accepted the principle of non-refoulement, either explicitly or tacitly, demonstrating its normative character. Moreover, the United Nations General Assembly has also passed numerous resolutions affirming non-refoulement, often by consensus , recognizing it as a core principle of international law. Additionally, UNHCR's Executive Committee, consisting of 108 states, has consistently described non-refoulement as a fundamental international law principle, urging all states, regardless of treaty obligations, to adhere to it. Moreover, the Committee described non-refoulement as a principle of international law entirely independent of treaty obligations and calls on 'all States to abide by their international obligation in this regard" whether or not they are bound to do so.

Judicial decisions from various international courts and national jurisdictions support the customary nature of the principle of non-refoulment. The International Criminal Court (ICC) and the European Court of Human Rights (ECtHR) have affirmed that non-refoulement is a fundamental part of international human rights law, binding even on states that are not parties to the 1951 Refugee Convention. Domestic courts in countries like Hong Kong , New Zealand , Canada , and the UK have also recognized non-refoulement as CIL.

Scholarly opinion and experts have overwhelmingly supported the status of non-refoulement as CIL. The International Institute of Humanitarian Law, in collaboration with the UNHCR, even adopted the San Remo Declaration, which explicitly states that non-refoulement is an integral part of customary international law.

Two counter arguments have generally been put forward to challenge the customary nature of international human rights principles that are not applicable in this case. The first is that "specially affected" States, those most impacted by migration, should be exempt from such duties as they do not recognise non-refoulement as CIL and the principle should not be imposed on them. The second is that many States in fact refoul refugees either directly or indirectly.

However, this view is contested by scholars who argue that the concept of "specially affected" states is incompatible with human rights principles, as migration is a common global issue. Moreover, there is insufficient evidence that such states actively reject non-refoulement. Many of these states have ratified international treaties like the CAT and ICCPR, which impose non-refoulement obligations. Additionally, instances of non-compliance do not undermine the principle’s status as CIL, as states often justify violations based on exceptions rather than denying the norm itself. The overall consensus is that non-refoulement has become a binding principle of CIL, regardless of inconsistent state practices.

It is also not open to Malaysia to rely on the persistent objector exception as Malaysia has not ratified the 1951 Refugee Convention but is a party to various other human rights treaties, like the ICCPR and CRC. Although it is not bound by non-refoulement obligations under international treaties, Malaysia has indicated a general respect for this principle through soft law agreements and public statements, such as the 2011 Australia-Malaysia Transfer and Resettlement Arrangement, which referenced non-refoulement. Malaysia’s actions over the years, such as deporting asylum seekers under claims of voluntary return or resource constraints , also do not clearly indicate a persistent rejection of the non-refoulement principle. Malaysia's inconsistent practice of both refoulement and non-refoulement, often justified on security or resource grounds, suggests an absence of clear and consistent objection to the principle. Despite its failure to implement a specific asylum processing system, Malaysia has cooperated with the UNHCR and expressed its intention to adhere to non-refoulement in certain agreements. Therefore, Malaysia's mixed practice, public statements, and international commitments disqualifies Malaysia as a persistent objector.

In conclusion, Malaysia and its courts are bound to follow the customary principle of non refoulement despite not having ratified the Refugee Convention and its protocol.