Contents

Chapter 10
Refugee proceedings and extradition

International obligations

10.3New Zealand is a party to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol.464 The Refugee Convention defines the term “refugee” as applying to any person who:465

… owing to a 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 … is unable or, owing to such fear, is unwilling to return to it.

10.4The Refugee Convention sets out the obligations of state parties and those of the refugees to their past states. In article 33, it codifies the fundamental principle of “non-refoulement”, which means that refugees cannot be forcibly returned to countries where they face persecution. Article 33(1) provides:

No Contracting 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.

10.5Under the Refugee Convention, the principle of non-refoulement also applies to persons who meet the definition criteria but have not had their refugee status formally recognised.466 The United Nations High Commissioner for Refugees has clarified that the principle applies not only to a refugee’s country of origin but to any other country where he or she has reason to fear persecution related to the grounds in the refugee definition or from where he or she could be sent to country where there is a risk of such persecution.467
10.6The principle of non-refoulement, under both the Convention and customary international law, is applicable in the context of extradition.468 This is illustrated by the wording of article 33(1), which refers to the expulsion or return of a person “in any manner whatsoever”.

10.7There are exceptions to the principle of non-refoulement where article 33(2) applies. Article 33(2) states:

The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

10.8Other international human rights agreements to which New Zealand is a party also establish non-refoulement obligations. These include, for example, the Universal Declaration of Human Rights,469 the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,470 and the 1966 International Covenant on Civil and Political Rights.471
10.9In a particular case, these non-refoulement obligations under international refugee and human rights law may be in opposition to the duty to extradite under a bilateral or multilateral extradition treaty. In such a situation, the international refugee and human rights obligations prevail over any obligation to extradite.472 This primacy derives from the nature of the refugee and human rights obligations and their place within the hierarchies in the international legal order.473

464Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954); and Protocol Relating to the Status of Refugees 606 UNTS 267 (opened for signature 31 January 1967, entered into force 4 October 1967).
465Convention Relating to the Status of Refugees, above n 464, art 1(A)(2).
466United Nations High Commissioner for Refugees Guidance Note on Extradition and International Refugee Protection (April 2008) at [11].
467At [12]. See also United Nations High Commissioner for Refugees Note on Non-Refoulement (EC/SCP/2, 23 August 1977) at [4].
468United Nations High Commissioner for Refugees, above n 466, at [8]–[10].
469Universal Declaration of Human Rights GA Res 217/A, III (1948), art 14(1) provides: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
470Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987). Article 3 applies expressly to extradition in providing:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
471‚ÄčInternational Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976). Articles 6 and 7 prohibit the arbitrary deprivation of life and torture and other cruel, inhuman, or degrading treatment or punishment. The Human Rights Committee has interpreted this as encompassing the principle of non-refoulement where return to another country creates a risk of such treatment; United Nations Human Rights Committee CCPR General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (10 March 1992) at [9], HRI/GEN/1/Rev 1 (1994) at 30.
472United Nations High Commissioner for Refugees, above n 466, at [21].
473At [22]. Article 103 of the Charter of the United Nations establishes the prevalence of Charter obligations over those stemming from other international agreements. In addition, under Articles 55(c) and 56 of the Charter, Member States of the United Nations are bound to work towards the achievement of the purposes of the United Nations, which include universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.