A Purposive Reading of ‘Non-Penalization’ under Article 31(1) of the Refugee Convention

Introduction

According to the United Nations High Commissioner for Refugees estimates, thousands of refugees have died while crossing the Mediterranean Sea. Those fleeing by sea find themselves in a legal limbo as they are prevented from physically entering a state’s territory while also being unable to return to their country of origin. Migration control mechanisms, such as pushback operations on the high seas which are in place to deter asylum claimants from ever reaching state shores, further exacerbate this legal vacuum. There is a possibility that existing treaty law, in particular Article 31(1) of the Convention Relating to the Status of Refugees (Refugee Convention), may assist in filling this gap.

Traditionally, the Refugee Convention prevents the penalization of a refugee for his or her unlawful presence within a state’s territory. This provision is found under Article 31(1) of the Refugee Convention (Non-Penalization Clause), which states:

“The Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened …enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

There are many ways to interpret this provision. I suggest there are two such ways. The first is the traditional, plain text reading of the provision, which interprets the provision based on its plain text meaning. A plain text reading of the Non-Penalization Clause says that an asylum claimant must be present on  the state’s territory in order to benefit from the protection of the said provision. The way I suggest that the Non-Penalization Clause should be read is as a purposive interpretation. A purposive interpretation examines the meaning behind the drafters’ intention when interpreting the text. A purposive reading of the provision would suggest that asylum claimants within the jurisdiction of the state may also benefit from the protection offered by this provision.

This reading is in line with the humanitarian objectives of the Refugee Convention, which is to provide the widest possible protection to those who are deserving of it. Where the text of the Refugee Convention is ambiguous, the Vienna Convention on the Law of Treaties may be relied upon as supplementary means of interpretation. The Vienna Convention suggests that the purpose of the Non-Penalization Clause is to prevent the situation where a claimant may be caught between two sovereign orders where he or she is forced to leave their country of origin but is refused entry in another.

A plain text reading of the Non-Penalization Clause would be to exclude the protection of non-penalization for asylum claimants who are not yet physically present on the territory of a state. However, a broader, purposive reading would include claimants who are seeking to enter or are in the process of entering a state’s territory. First, the purpose of the Non-Penalization Clause is to prevent an asylum claimant from being left in limbo. Second, a purposive reading of the Non-Penalization Clause suggests that non-penalization would mean not only punishing the claimant for illegal presence, but also protecting the claimant from the situation of being rejected on both ends.

Adding to this perspective is the idea that the Non-Penalization Clause applies to not only asylum claimants within the territory of a state but also to asylum claimants within the jurisdiction of a state. Thus, it can be shown that the penalization of an asylum claimant’s unlawful presence within the jurisdiction of a state would be a violation of the provision.

One way to protect asylum seekers not within the territory of a state would be to externalize migration control processes. Bilateral agreements between countries could be formed to institutionalize offshore processing in a way that is in direct contravention with the Non-Penalization Clause. Furthermore, when working in conjunction with the prohibition against sending claimants back to persecution, death, or torture (termed non-refoulement), the Non-Penalization Clause may act as additional protection for asylum claimants in limbo.

A literal, plain text reading

This literal and plain text interpretation of the Non-Penalization Clause, which states that claimants must be on physical territory, is problematic in many ways. First, it restricts the understanding of the freedom of movement of refugees. With this reading, refugees are only protected after having successfully arrived and are physically present within the borders of a state. Second, this limited reading of the Non-Penalization Clause creates a legal vacuum to the detriment of asylum claimants who are arriving by sea. Third, permitting the Non-Penalization Clause to be read in such a restrictive manner undermines the underlying rationale for having such a provision in the first place and that is to enhance the protection of refugees.

The suggested, purposive reading

There is scholarly support for extraterritorial (outside of a state’s territory) application of a state’s jurisdiction. Furthermore, it has been suggested that the interdiction of asylum claimants on the high seas could potentially be within the framework of the Non-Penalization Clause. While it remains to be seen whether a more direct nexus may be made between the applicability of the Non-Penalization Clause (as it is currently envisioned in scholarly literature) and the transportation of asylum claimants vis-à-vis third country agreements, such a link—even a strong one—may be justified based on three propositions or reasons.

I will summarize my arguments into the following three propositions:

1. Under international law, the notion of ‘territory’ may be derived from the Montevideo Convention on Rights and Duties of States. This convention states that there are four criteria for determining what constitutes a state. As will be shown later, this definition of statehood is rather restrictive. I propose instead, that the definition of statehood may encompass a broader notion of state jurisdiction and state sovereignty, where ‘territory’ is merely one criterion for determining issues of jurisdiction.
2. Having affirmed the first proposition above, the phrase “enter or are present in their territory” in Article 31(1) may be interpreted as comprising of more than mere presence (on the territory of a state). It could also include instances where the individual claimant may be seeking to enter a territory or is in the process of entering a territory.
3. Having affirmed the two propositions above, the Non-Penalization Clause would also be applicable at transit zones, where such a transit zone is within the proximity of a state’s borders including when states conduct migration controls and border checks extraterritorially (i.e. outside of a state’s prescribed territory).

I will expand on these arguments below:

1. Territory as a broader notion of state jurisdiction and sovereignty

Article 1 of the Montevideo Convention on the Rights and Duties of States defines a state’s statehood based on the following criteria: 1) permanent population 2) defined territory 3) government and 4) capacity to enter into relations with other states. The Montevideo criteria for statehood are not independent of each other. For instance, without an effective government and governmental control over a defined territory, it would be difficult to make a statehood claim. Furthermore, international law defines ‘territory’ by reference to the extent of governmental control over an area, so that ‘territory’ as a criterion for statehood is highly dependent upon effective government and governmental control. Whether a government is able to maintain sovereign control over its claimed territory may be an indication of whether it is effective. 

Based on the above, the notion of ‘territory’ may be read as encompassing more than mere physical territory. It can also be used to embrace broader issues of state jurisdiction and sovereignty. If this proposition is accepted, a claimant who is penalized for being within the jurisdiction of a state—i.e. on the high seas—would be wrongfully persecuted under the Non-Penalization Clause.

1. ‘Enter or are present in their territory’ as more than mere presence

It has been suggested by leading scholars in the field that the Non-Penalization Clause may be applicable in instances where the claimant is seeking to enter or in the process of entering a state’s territory. By reading the words “enter or are present in their territory” as more than mere presence, the protection of non-penalization may also be broadened to encompass asylum claimants who are on the high seas, seeking admission to a state’s territory. This proposition is very important because it fills the legal vacuum left by asylum claimants who otherwise are not yet present on the territory of a state but at the same time not necessarily within the purview of non-refoulement protection (i.e. prohibition from being returned to persecution, death, or torture). An example of when this may occur is when an individual, who does not qualify for non-refoulement protection, is seeking asylum but their refugee status has not yet been ascertained since they have not been able to gain access to a state’s asylum procedures or its territory.

Accordingly, when reading the words “enter or are present in their territory” as more than mere presence, the protection for asylum claimants, who are otherwise not able to benefit from the Non-Penalization Clause, would be enhanced.

1. Transit zones as part of a state’s territory

The protection offered by the Non-Penalization Clause should be applicable in those areas where the jurisdictional reach of a state includes the extraterritorial exercise of migration controls, and where said reach may be considered part of a state’s territory. In practice, this would entail the non-penalization of asylum claimants seeking to enter or are in the process of entering a transit zone where migration controls and/or border checks are taking place. Following this line of reasoning, undocumented claimants should therefore be offered a place of sanctuary even in transit zones and should not be penalized for their illegal presence there. Taking this example further, where the high seas may also be considered as a transit zone, the claimant would be entitled to claim their right of non-penalization when the state is exercising their jurisdiction extraterritorially through migration control exercises on the high seas.

As these three propositions show (although it may not be apparent), the linkage between the Non-Penalization Clause and the transportation of asylum claimants, vis-à-vis third country agreements, exists. I have also suggested that this link is a strong one. It is suggested that, taken together, the three propositions are reasons which support the strong nexus between these two concepts.

Conclusion

The traditional, plain text reading of the Non-Penalization Clause suggests that only when an asylum claimant is physically present on the territory of a state may he or she benefit from said protection. However, this is problematic due to the legal vacuum which it creates for claimants crossing by sea.  It has been posited that instead of a literal, plain text reading of the Non-Penalization Clause, a purposive reading, which takes into account the purpose behind the provision, should be the new approach. The three propositions above have highlighted why this new interpretation should be adopted.

In light of the ongoing situation in the Mediterranean Sea route for asylum claimants looking to reach safety, a new approach to interpreting the Non-Penalization Clause may be a way to enhance protection for these vulnerable individuals. Now more than ever, the rights of asylum claimants and refugees must be safeguarded.

Jenny Poon is a Ph.D. candidate at the Faculty of Law of the University of Western Ontario, a Barrister & Solicitor in Ontario, and a Senior Fellow at the Canadian International Council. Jenny was a Visiting Fellow at the Refugee Studies Centre of the University of Oxford and was the recipient of the American Society of International Law International Refugee Law Essay Award and the EU Studies Association Haas Fund Fellowship. Jenny’s research examines non-refoulement as a norm in international and European law through a comparative analysis of United Kingdom and Germany. Jenny’s research interests include international refugee law, EU asylum law, migration control and human rights.