(back to preceding text)

    16.  The requirement that a foreign national applying for refugee status must, to qualify as a refugee, be outside his country of nationality is unambiguously expressed in the Convention definition of refugee quoted in para 6 above. The point could not be more clearly expressed than in para 88 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992):

"It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality. There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country."

    17.  In his work Convention Relating to the Status of Refugees (Institute of Jewish Affairs, 1953), Nehemiah Robinson wrote:

"Article 33 concerns refugees who have gained entry into the territory of a Contracting State, legally or illegally, but not to refugees who seek entrance into this territory. In other words, Article 33 lays down the principle that once a refugee has gained asylum (legally or illegally) from persecution, he cannot be deprived of it by ordering him to leave for, or forcibly returning him to, the place where he was threatened with persecution, or by sending him to another place where that threat exists, but that no Contracting State is prevented from refusing entry in this territory to refugees at the frontier. In other words, if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck."

This opinion was endorsed by Weis (op cit, pp 123-124) and Grahl-Madsen (op cit, p.94). It was upheld by a majority of the United States Supreme Court in Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc 509 US 155 (1993), p183, fn 40. It has been upheld by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Ibrahim, above, para 136, and Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, (2002) 210 CLR 1, para 42. In the last passage cited, McHugh and Gummow JJ said:

"Rather, the protection obligations imposed by the Convention upon Contracting States concern the status and civil rights to be afforded to refugees who are within Contracting States."

The House was referred to no judicial authority to contrary effect. It has had the benefit of expert and authoritative commentary on the negotiations which culminated in the 1951 Convention, a legitimate guide to interpretation if the effect of a provision is in doubt and the travaux préparatoires yield a clear and authoritative answer: see article 32 of the Vienna Convention on the Law of Treaties. Those conditions are, in my opinion, met in this case when the scope of article 33 of the Convention falls to be considered. As appears from Weis, The Refugee Convention 1951 (Cambridge, 1995, pp 328, 334, 335) and "The UN Declaration on Territorial Asylum" (1969) CYIL 92, 124, "expel" was understood to apply to a refugee who had already been admitted to the territory of a country. There was more doubt about the meaning of "refouler". It was however understood that the expression should have the same meaning as "return", applicable to refugees who had already entered a country but were not yet resident there. The potential ambiguity was resolved by agreement that the French word refoulement (refouler in verbal use) should be included in brackets and between inverted commas after the English word "return" wherever the latter appeared in the text. In 1967 the United Nations adopted a Declaration on Territorial Asylum which provided, in article 3, that no person entitled to invoke article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier, but a conference held in 1977 to embody this and other provisions in a revised convention ended in failure. As Gummow J put it in Ibrahim (2000) 204 CLR 1, para 142, in his judgment given in October 2000,

"there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than twenty years ago."

    18.  Lord Lester of Herne Hill QC, for the appellants, did not seek to advance what would have been an impossible contention, that the appellants were covered by the express provisions of the 1951 Convention. Plainly they were not, for they had at no stage been outside the country of their nationality nor within this country and the procedures adopted by the British authorities at Prague airport did not involve expelling or returning them to the frontiers of the Czech Republic, a state they had never left. Instead, Lord Lester urged that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and purpose clearly stated in the preamble quoted in full in para 6 above. This is, in my opinion, a correct approach to interpretation of a convention such as this and it gains support, if support be needed, from article 31(1) of the Vienna Convention on the Law of Treaties which, reflecting principles of customary international law, requires a treaty to be interpreted in the light of its object and purpose. But I would make an important caveat. However generous and purposive its approach to interpretation, the court's task remains one of interpreting the written document to which the contracting states have committed themselves. It must interpret what they have agreed. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. This would violate the rule, also expressed in article 31(1) of the Vienna Convention, that a treaty should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context. It is also noteworthy that article 31(4) of the Vienna Convention requires a special meaning to be given to a term if it is established that the parties so intended. That rule is pertinent, first, because the Convention gives a special, defined, meaning to "refugee" and, secondly, because the parties have made plain that "refouler", whatever its wider dictionary definition, is in this context to be understood as meaning "return". It is in principle possible for a court to imply terms even into an international convention. But this calls for great circumspection since, as was said in Brown v Stott [2003] 1 AC 681, 703,

"it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree,"

and caution is needed

"if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept."

    19.  In urging a broader and less literal approach to interpretation of the Convention, Lord Lester relied on article 26 of the Vienna Convention, entitled Pacta sunt servanda, which requires that a treaty in force should be performed by the parties to it in good faith and also on the requirement in article 31(1) that a treaty should be interpreted in good faith. Taken together, these rules call for good faith in the interpretation and performance of a treaty, and neither rule is open to question. But there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do. The principle that pacta sunt servanda cannot require departure from what has been agreed. This is the more obviously true where a state or states very deliberately decided what they were and were not willing to undertake to do. The important backdrop to the Convention was well described by Hyndman, "Refugees under International Law with a Reference to the Concept of Asylum" (1986) 60 ALJ 148, 153, in a passage quoted by McHugh and Gummow JJ in Khawar, above, para 44:

"States the world over consistently have exhibited great reluctance to give up their sovereign right to decide which persons will, and which will not, be admitted to their territory, and given a right to settle there. They have refused to agree to international instruments which would impose on them duties to make grants of asylum.

Today, the generally accepted position would appear to be as follows: States consistently refuse to accept binding obligations to grant to persons, not their nationals, any rights to asylum in the sense of a permanent right to settle. Apart from any limitations which might be imposed by specific treaties, States have been adamant in maintaining that the question of whether or not a right of entry should be afforded to an individual, or to a group of individuals, is something which falls to each nation to resolve for itself."

While a state party must show good faith in interpreting and performing a treaty obligation, the International Court of Justice made plain in In re Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 69, para 94, and repeated in In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [1998] ICJ Rep 275, para 39, that

"The principle of good faith is, as the Court has observed, 'one of the basic principles governing the creation and performance of legal obligations' …; it is not in itself a source of obligation where none would otherwise exist."

    20.  Lord Lester relied by analogy on the important decision of the European Court of Human Rights in Golder v United Kingdom (1975) 1 EHRR 524. In that case the applicant, while a serving prisoner, had sought to consult a solicitor with a view to issuing libel proceedings but had been denied access to the solicitor. He complained of interference with his article 6 right to a fair and public determination of his civil rights and obligations but faced the difficulty that, without legal help, he had been unable to initiate a proceeding to which his fair trial right could attach. Despite this difficulty his application succeeded and the Court held in paras 35-37:

"35.  … It would be inconceivable, in the opinion of the Court, that Article 6(1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.

36.  Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6(1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6(1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p.23, para. 8), and to general principles of law.

The Court thus reaches the conclusion, without needing to resort to 'supplementary means of interpretation' as envisaged at Article 32 of the Vienna Convention, that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the article embodies the 'right to a court', of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only."

The analogical argument based on Golder is to the following effect: had the appellants not been effectively prevented by the UK authorities from travelling to this country, they could have done so and could on arrival have applied for asylum; that application would then have been assessed and, if the requisite grounds were established, granted; the British authorities' conduct in preventing the appellants travelling to the UK and failing to evaluate their asylum applications in Prague should not prejudice the appellants. There are, in my opinion, several reasons why this argument cannot prevail. In the first place, the Court's judgment in Golder was in large measure based on a detailed analysis of the French text of the European Convention and on the Court's interpretation of that Convention as a whole. But there are more fundamental objections. Nothing in Mr Golder's claim was inconsistent with any provision of article 6 or any other article of the European Convention, indeed the right claimed was held to be inherent in article 6. By contrast, the appellants' claim is inconsistent with the text of the Refugee Convention since it puts those expressly excluded from the protection of the Convention in the same position as those expressly included. It is a further point of distinction that Mr Golder on any showing had a right under article 6; the argument was as to the scope of that right. By contrast, the appellants had no right save such as might be correlative with the obligations undertaken by the United Kingdom in the 1951 Convention; but such obligations were dependent on the appellants being outside the state of their nationality, which they never were.

    21.  Reliance was also placed on the European Convention in a more direct way. Lord Lester accepted that the application of the Convention was essentially territorial, and acknowledged that, save for a fleeting reference in article 5(i)(f) and protocol number 4 (which the United Kingdom has not ratified), the Convention does not directly address issues of immigration and asylum. But there were, he submitted, situations in which a member state could, through the action of its agents outside its territory, assume jurisdiction over others in a way that could engage the operation of the Convention, and he suggested that this was one of them. The first of these points is correct, and also important. In Bankovic v Belgium (2001) 11 BHRC 435 the Court accepted (para 59) "that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial", and added (para 67):

"67.  In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the Convention."

Its conclusions, so far as relevant for present purposes, were expressed in paras 71 and 73:

"71.  In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government."

"73.  Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state."

I have the very greatest doubt whether the functions performed by the immigration officers at Prague, even though they were formally treated as consular officials, could possibly be said to be an exercise of jurisdiction in any relevant sense over non-UK nationals such as the appellants. But even if this be assumed in the appellants' favour (as, on different facts, the Court of Appeal was content to assume in R(B) v Secretary of State for the Foreign and Commonwealth Office [2004] EWCA Civ 1344, 18 October 2004, para 66), the agreed facts summarised in para 3 above do not disclose any threat to life such as might engage article 2 of the European Convention or any risk of torture or inhuman or degrading treatment or punishment such as might engage article 3. The appellants were at all times free to travel to another country, or to travel to this country otherwise than by air from Prague. The appellants' position differs by an order of magnitude from that of the Haitians, whose plight was considered in Sale, above, and whose treatment by the United States authorities was understandably held by the Inter-American Commission of Human Rights (Report No 51/96, 13 March 1997, para 171) to breach their right to life, liberty and security of their persons as well as the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man, of which the Commission found the United States to be in breach in para 163. The Commission also found the United States to be in breach of article 33(1) of the Refugee Convention: paras 156-158. This was a view shared by Blackmun J in his dissent in Sale. The facts differ from the present case since the Haitians, although they never reached the United States, were certainly outside Haiti, the country of their nationality.

    22.  With the strong and erudite support of Mr Goodwin-Gill, Lord Lester submitted, first, that customary international law is part of the common law and, secondly, that customary international law precludes a state from treating a potential or prospective applicant for asylum as the UK authorities treated the appellants, that is, by refusing them leave to enter and effectively thwarting their journey by air from Prague to the UK without examining the merits of any asylum claim the appellants, if allowed to travel, would make. I shall consider first the second of these submissions.

    23.  The conditions to be satisfied before a rule may properly be recognised as one of customary international law have been somewhat differently expressed by different authorities, but are not in themselves problematical. Guidance is given by the International Court of Justice in the North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, paras 70-71, on the approach where a treaty made between certain parties is said to have become binding on other states not party to the treaty:

"70.  The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention [on the Continental Shelf, 1958] no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice, - and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea.

71.  In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained."

The relevant law was, I think, accurately and succinctly summarised by the American Law Institute in its Restatement of the Foreign Relations Law of the United States (Third) vol 1, 1986, para 102(2) and (3):

"(2)  Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted."

This was valuably supplemented by a comment to this effect:

"c. Opinio juris.  For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions."

It is in my opinion clear, applying these principles, that even if the interpretation I have put on the Refugee Convention is accepted as correct, that is by no means the end of the appellants' international law argument. For the convention was made more than half a century ago. Since then the world has changed in very many ways. The existence of the Convention is no obstacle in principle to the development of an ancillary or supplementary body of law, more generous than the Convention in its application to those seeking asylum as refugees. That, essentially, is the argument advanced for the appellants.

    24.  The principles which should govern the treatment of those seeking asylum as refugees have continued to be the subject of continuing international discussion, and the appellants were able to point to a considerable body of material on the subject. I will refer to only some of it. In 1966 the Asian-African Legal Consultative Committee formulated the Bangkok Principles, which defined a refugee as one who had left the country of his nationality and provided that "A State has the sovereign right to grant or refuse asylum in its territory to a refugee". In 1967 the Committee of Ministers of the Council of Europe recommended (resolution (67)14) that member states should act in a particularly liberal and humanitarian spirit in relation to persons seeking asylum on their territory and that they should

"in the same spirit, ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution …"

In 1977 the UNHCR Executive Committee (in Conclusion No 6 (XXVIII) "Non-Refoulement" Report of the 28th Session: UN doc A/AC. 96/549, para 53.4) reaffirmed

"the fundamental importance of the observance of the principle of non-refoulement - both at the border and within the territory of a State of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees."

The same body reiterated in 1981 (Conclusion No 22 (XXXII, 1981, "Protection of Asylum-Seekers in Situations of Large-Scale Influx": Report of the 32nd Session: UN doc A/AC.96/601, para 57(2)) that

"In all cases the fundamental principle of non-refoulement including non-rejection at the frontier must be scrupulously observed."

In 1984 the Committee of Ministers of the Council of Europe (Recommendation No R(84)1) adopted Resolution (67)14 and considered that the principle of non-refoulement had been recognised as a general principle applicable to all persons. In the same year a colloquium held at Cartagena, Colombia, on the international protection of refugees in Central America, Mexico and Panama reiterated

"the importance and meaning of the principle of non-refoulement (including the prohibition of rejection at the frontier) as a corner-stone of the international protection of refugees. This principle is imperative in regard to refugees and in the present state of international law should be acknowledged and observed as a rule of jus cogens."

The states parties to the 1951 Convention met at Geneva in December 2001 and adopted a Declaration (doc HCR/MMSP/2001/09, 16 January 2002) in which they called for universal adherence to the Convention and acknowledged

"the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law."

The International Law Association, meeting in New Delhi in April 2002, referred in Resolution 6/2002 to "the fundamental obligation of States not to return (refouler) a refugee in any manner whatsoever to a country in which his or her life or freedom may be threatened" and declared:

"1.  Everyone seeking international protection as a refugee outside his or her country of origin and in accordance with the relevant international instruments should have access to a fair and effective procedure for the determination of his or her claim.

5. No one who seeks asylum at the border or in the territory of a State shall be rejected at the frontier, or expelled or returned in any manner whatsoever to any country in which he or she may be tortured or subjected to inhuman, cruel or degrading treatment or punishment, or in which his or her life or freedom may be endangered …"

Attention should lastly be drawn to General Comment No 31 ("The Nature of the General Legal Obligation Imposed on States Parties to [the International Covenant on Civil and Political Rights]") of the Human Rights Committee of the United Nations adopted on 29 March 2004:

"10.  States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation."

The United Kingdom is a state party to the ICCPR but has not incorporated that Covenant (which contains no article specifically directed to asylum) into its domestic law.