The Retreat of Non-Refoulement

Rushil Srinath
Jun 17
8 min read

Article 33(1) of the 1951 Refugee Convention sets forth that ‘No State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

The principle of non-refoulement is one of the few norms in international law that feels morally unassailable, protecting individuals from being forcibly returned to territories where they risk persecution. Yet for all its noble origins and widespread recognition, the principle is increasingly treated as a ceremonial plaque; one that is admired and occasionally cited, but routinely ignored.

Most recently, in late February 2025, Thailand deported 40 Uyghurs to China after nearly a decade in detention. Whistleblowers accuse China of operating a sprawling internment system in Xinjiang aimed at erasing religious and cultural identities and replacing them with enforced loyalty to the Communist Party, a blatant showcase of persecution.

A vehicle with a load of unidentified passengers in Bangkok, Thailand, on Feb 27, 2025. Image credit: Nuttaphol Meksobhon/Prachatai via Associated Press

However, as the world grapples with deepening geopolitical rifts, states have found it difficult to actualise their condemnation of the Thais beyond pure lip service. Generally, while the principle of non-refoulement remains on paper, its power in practice is under siege. Why is this law so easily bypassed, and is it still relevant today?

The Legal Lineage of Non-Refoulement

Born from the ashes of World War II, the principle was shaped by the collective failure of nations to protect the Jews, Gypsies, Jehovah’s Witnesses and other persecuted groups fleeing Nazi atrocities, and the resolve that such odious abandonment should never happen again.

Over time, the principle expanded beyond the 1951 Refugee Convention’s original scope through regional instruments and human rights treaties that include the 1967 Protocol, the Convention Against Torture and the International Covenant on Civil and Political Rights.

Interestingly, it is regarded as not just a cornerstone of refugee protection, but as part of customary international law that binds on states regardless of ratification. Many legal scholars consider it a jus cogens norm, where no derogation is permitted, even in times of ‘emergency’.

While the principle is increasingly flouted, it would be impudent to ignore recent legal victories that highlight its continued relevance. Notably, in 2023, the UK Court of Appeal blocked Rishi Sunak’s plan to deport asylum seekers to Rwanda, due to inadequate procedural safeguards.

Moreover, the European Court of Human Rights has repeatedly ruled against Greece and Poland for pushbacks at their borders from 2022 to 2025 by underscoring that pedantic territorial technicalities cannot override customary refugee protections (they argued the refugees had not yet reached sovereign soil, and pushing them back did not breach non-refoulement).

Meanwhile, Canada has (mostly) suspended deportations to Taliban-controlled Afghanistan, in light of repression since 1994, and a U.S. federal court ruled in 2022 that Title 42 expulsion, which is the refoulement of refugees on the basis of public health concerns (a pandemic-era policy) was invalid, and cannot supplant the norms of refugee protection.

Even when states resist judicial oversight, diplomatic pressure shaped by the law maintains the strength of non-refoulement as a customary principle. On the issue of Uyghur deportation from Thailand to China in 2025, the US placed visa restrictions on Thai officials responsible for their forced return, while Japan and Australia deplored Thailand for its actions just a month into its term at the UN Human Rights Council. While no tangible sanctions were placed, the principle still breathes, and is echoed in global civil society.

However, moral suasion can only go so far, and the world is far too avaricious and individualistic to rely on ethics to draw the boundaries of justice. The principle of non-refoulement is in retreat.

The Languishing Law

The Achilles’ heel of non-refoulement today is its unenforceability. While hailed as a peremptory norm in international law, there exists no binding global authority capable of enforcing it against sovereign states. The 1951 Convention has no embedded punitive framework; no tribunal, no enforcement agency, and no prescribed penalties. Naturally, states that violate it may not face any sanctions, and only the soft disapproval of international forums.

The signing of the 1951 Refugee Convention was meant to put an end to the return of refugees to perilous positions. Image credit: UN Archives

Where accountability does exist, however, like when the European Court of Human Rights ruled against Greece and Poland, it is not necessarily the 1951 Convention that provides recourse, but regional human rights instruments. In essence, the Convention must rely on other treaties and institutions to give effect to its principles, giving complicit states a free pass if there is no will to uphold international standards.

Worse, many states culpable of violating non-refoulement are not bound by the key treaties meant to uphold it. For example, Bangladesh is not a signatory to the 1951 Refugee Convention nor to the Rome Statute of the International Criminal Court (ICC). As a result, no international judicial body holds those accountable for turning away Rohingya refugees fleeing genocide in Myanmar since 2016, and they escape scot-free.

Regarding the Uyghurs, a UK-based 2021 tribunal found China guilty of genocide, citing forced sterilisation and mass torture. Still, the ICC declined to investigate due to jurisdictional limits, and with China’s veto power at the UN Security Council, no case will likely proceed to the International Court of Justice (ICJ) either.

Image credit: Paolo Calleri via Cartoon Movement

Existing Loopholes

Even where legal obligations are actionable, states have learned sophisticated mechanisms to circumvent them. This is characteristic of legal ambiguity, where refugee rights are dependent on subjective interpretation. For instance, under both Democratic and Republican administrations in the US, Title 42 was frequently invoked during the pandemic to expel nearly 3 million migrants under the pretext of public health, denying them the right to claim asylum, in the interest of the American people.

Similarly, drawing attention to Israel in 2018, asylum seekers from Eritrea and Sudan who were escaping persecution and conflict were generously offered either indefinite detention or relocation to Rwanda or Uganda, where they will instead become victims of rampant trafficking networks. How terribly grim.

Another defining tactic of modern refoulement is its offshoring: the strategic outsourcing of border control to third parties, allowing states to evade both legal accountability and public scrutiny. Australia’s offshore processing regime, which detains asylum seekers indefinitely in Nauru and Papua New Guinea under appalling conditions, exemplifies this practice.

But the European Union has taken it further: rather than directly deporting migrants to war-torn Libya, a clear breach of non-refoulement, it finances the Libyan Coast Guard to intercept and return asylum seekers to detention centres rife with torture, extortion, and sexual abuse.

Young men at a detention centre for illegal migrants in Tripoli, Libya. Image credit: Florian Gaertner via Getty Images

By engineering layers of plausible deniability, some states today preserve the letter of the law while eviscerating its spirit, urging a shift in how we legally define non-refoulement. These examples underscore how legal ambiguity is weaponised to euphemise refoulement, undermining the core purpose of the 1951 Refugee Convention to protect human rights. In essence, the principle is entrenched in an anachronistic legal framework that has failed to evolve with the times, and take modern forms of refoulement to task.

The Security Paradigm

Perhaps the most crucial factor explaining the retreat of non-refoulement is the growing dominance of national security rhetoric in migration policy. The post-9/11 world demands that governments act in the best interests of their people and cultivate stability by all means, no matter how unfounded their fears might be. Governments, therefore, justify returns to danger zones under the guise of combating violence.

The loss of temporary protected status and forced eviction of Afghans from the US in 2025, the forced return of Rohingya refugees to Myanmar since 2016, and the 2021 Belarus-EU standoff demonstrate how refugees are reimagined as threats, granting states moral license to ignore their duties. When states normalise expediency over ethics, they embolden impunity. The erosion of non-refoulement mirrors a broader global disintegration, that is, the slow decay of empathy under the guise of national security.

Still, such concerns are valid, especially on the economic front. To remain competitive, governments weigh human rights against quarterly earnings — and too often, the numbers win. Amid rising trade tensions, many states choose tepid concern over meaningful castigation to preserve strategic partnerships. In the 2025 Uyghur deportation case, Thailand was caught between its oldest ally (the US) and its largest investor (China). Thailand facilitating the deportation, despite rebuke from the West, was symbolic of its economic priorities, especially in an era of great uncertainty surrounding the US foreign policy.

When Xinjiang was first accused of human rights infringements towards the Uyghurs, Germany, the origin of many major corporations like Siemens and Volkswagen with operations there, merely urged compliance with international standards — yet efforts to restructure supply chains were few and far between.

Even as crimes against humanity come to the fore and non-refoulement is contravened, the current state of economic competition renders it far too difficult for states to decouple and abide by international standards.

A Moral Iron Curtain

While rather ineffective, discarding non-refoulement entirely would be a dangerous surrender. As the final legal bulwark against the commodification of human life in migration discourse, non-refoulement remains a powerful normative constraint. It anchors a shared language of human rights, and when refugees are vilified, it can speak truth to power.

Continued inaction sets a dangerous precedent, where powerful states reshape the very systems designed to constrain them. And yet, in this era of realpolitik zeitgeist, national interest continues to outweigh moral resolve.

A sobering question remains: In a world defined by flagrant nationalism, who will stand for the powerless?