those within the territory of a State Party, they chose language which leaves no doubt as
to their intention.
29.
Furthermore, any interpretation which construes the scope of Article 33(1) of the
1951 Convention as not extending to measures whereby a State, acting outside its
territory, returns or otherwise transfers refugees to a country where they are at risk of
persecution would be fundamentally inconsistent with the humanitarian object and
purpose of the 1951 Convention and its 1967 Protocol. In this context, it is worth
recalling the first two paragraphs of the Preamble to the 1951 Convention, which read:
“Considering that the Charter of the United Nations and the Universal Declaration of Human
Rights approved on 10 December 1948 by the General Assembly have affirmed the principle
that human beings shall enjoy fundamental rights and freedoms without discrimination,61
Considering that the United Nations has, on various occasions, manifested its profound concern
for refugees and endeavoured to assure refugees the widest possible exercise of these
fundamental rights and freedoms.”
30.
A comprehensive review of the travaux préparatoires 62 confirms the overriding
humanitarian object and purpose of the Convention and provides significant evidence
that the non-refoulement provision in Article 33(1) was intended to prohibit any acts or
omissions by a Contracting State which have the effect of returning a refugee to
territories where he or she is likely to face persecution or danger to life or freedom. For
example, when the 1951 Convention was in the course of preparation, the SecretaryGeneral stated in a Memorandum dated 3 January 1950 to the Ad Hoc Committee on
Statelessness and Related Problems that “turning a refugee back to the frontier of the
country where his life or liberty is threatened… would be tantamount to delivering him
into the hands of his persecutors.” 63 During the discussions of the Committee, the
representative of the United States vigorously argued that:
“[w]hether it was a question of closing the frontier to a refugee who asked
admittance, or of turning him back after he had crossed the frontier, or even
expelling him after he had been admitted to residence in the territory, the
problem was more or less the same. Whatever the case might be, whether or not
61
62
63
One of the fundamental rights enshrined in the Universal Declaration of Human Rights, General
Assembly resolution 217A (III), U.N. Doc. A/810 at 71 (1948), is the right of everyone “to seek and
enjoy in other countries asylum from persecution” under Article 14.
Pursuant to Article 32 of the 1969 Vienna Convention, supra footnote 35, recourse to the preparatory
work of the treaty is a supplementary means of treaty interpretation is permitted only where the
meaning of the treaty language is ambiguous or obscure; or where interpretation pursuant to the
general rules set out in Article 31 of the 1969 Vienna Convention leads to a result which is manifestly
absurd or unreasonable. It is a well-established principle that when the meaning of the treaty is clear
from its text when viewed in light of its context, object and purpose, supplementary sources are
unnecessary and inapplicable, and recourse to such sources is discouraged. See, for example,
International Court of Justice, Interpretation of the Treaty of Lausanne, P.C.I.J., Ser. B, No. 12
(1925), at 22; The Lotus Case, P.C.I.J., Ser. A, No. 10 (1927), at 16; Admission to the United Nations
Case, 1950 ICJ Reports 8. Thus, while UNHCR is of the view that recourse to the drafting history of
Article 33(1) of the 1951 Convention is not necessary given the unambiguous wording of this
provision, the travaux préparatoires are nevertheless of interest in clarifying the background, content
and scope of Article 33(1).
Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons –
Memorandum by the Secretary General, U.N. Document E/AC.32/2, 3 January 1950, Comments on
Article 24 of the preliminary draft, para. 3.
14
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