2. Non-Refoulement of Refugees Under Customary International Law 14. Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law”, as one of the sources of law which it applies when deciding disputes in accordance with international law. 28 For a rule to become part of customary international law, two elements are required: consistent State practice and opinio juris, that is, the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it. 29 15. UNHCR is of the view that the prohibition of refoulement of refugees, as enshrined in Article 33 of the 1951 Convention and complemented by non-refoulement obligations under international human rights law, satisfies these criteria and constitutes a rule of customary international law. 30 As such, it is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol. 31 In this regard, UNHCR notes, inter alia, the practice of non-signatory States hosting large numbers of refugees, often in mass influx situations. 32 Moreover, exercising its supervisory function, 33 UNHCR has closely followed the practice of Governments in relation to the application of the principle of non-refoulement, both by States Party to the 1951 Convention and/or 1967 Protocol and by States which have not adhered to either instrument. In UNHCR’s experience, States have overwhelmingly indicated that they accept the principle of non-refoulement as binding, as demonstrated, inter alia, in numerous instances where States have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle.34 28 29 30 31 32 33 34 Article 38(1) of the Statute of the International Court of Justice, 59 Stat. 1031, 1060 (1945). See: International Court of Justice, North Sea Continental Shelf, Judgment, 1969 ICJ Reports, page 3, para. 74. See also International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ Reports, page 392, para. 77. See: UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 (available at: http://www.unhcr.org/home/RSDLEGAL/437b6db64.html, last accessed on 30 October 2006); UNHCR, Note on the Principle of Non-Refoulement (EU Seminar on the Implementation of the 1995 EU Resolution on Minimum Guarantees for Asylum Procedures), 1 November 1997 (available at: http://www.unhcr.org/home/RSDLEGAL/438c6d972.html, last accessed on 30 October 2006). See also New Zealand Court of Appeal, Zaoui v. Attorney General, 30 September 2004, (No 2) [2005] 1 NZLR 690, para. 34 (“The prohibition on refoulement, contained in art 33.1 of the Refugee Convention, is generally thought to be part of customary international law, the (unwritten) rules of international law binding on all States, which arise when States follow certain practices generally and consistently out of a sense of legal obligation.”) and para. 136 (“The Refugee Convention is designed to protect refugees from persecution and the non-refoulement obligation is central to this function. It is non-derogable in terms of art 42.1 and, as discussed above at para [34] has become part of customary international law.”). See also E. Lauterpacht and D. Bethlehem, supra footnote 13, paras. 193–219; G. Goodwin-Gill, The Refugee in International Law, 2nd edition, Oxford University Press (1996), at pp. 167–171. The prohibition of refoulement of refugees under customary international law also applies, with regard to non-European refugees, in States which are party to the 1951 Convention, but which maintain the geographical limitation provided for Article 1B(1) of the Convention. This is the case, for example, in Bangladesh, India, Pakistan and Thailand. Under Paragraph 8 of the Statute of UNHCR, Article 35 of the 1951 Convention and Article II of the 1967 Protocol (see also supra footnote 3). As noted by the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, 1986 ICJ Reports, page 14, para. 186, “[i]n order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in 7