Observation of the Non-Refoulement Principle in the Legislation of Kazakhstan

Khalida Azhigulova, MJur (OXON)

Published in the Herald of the Kazakhstan Association of International Law, December 2009

I. Introduction

It is estimated that currently there are around 16 million refugees worldwide. Yet, in Kazakhstan, the number of refugees barely reaches one thousand. However, due to Kazakhstan’s geographical location in a quite unstable region, a refugee influx from neighbouring and nearly-located states may occur any time: from Afghanistan, Uzbekistan, Kyrgyzstan or China. In this event, Kazakhstan should be ready to provide asylum to these people and guarantee their rights in the most effective manner in accordance with its international obligations. At the same time, Kazakhstan holds a leading position in the area of combating terrorism, separatism and religious extremism in the Central Asian region. Moreover, Kazakhstan is a party to a number of multilateral extradition agreements will all neighbour states, including those that generate most asylum-seekers in the country. This situation gives rise to a topical question about the correlation between the interests of the national security and observation of international commitments to guarantee safe asylum, the concept, which is based on the fundamental refugee right, i.e. freedom against forced return to the country of origin (non-refoulement).

In this article, the author explores to which extent the cotemporary legislation of Kazakhstan in part of observation of the non-refoulement principle complies with the relevant international standards, and what measures need to be taken for strengthening the system of safe asylum in Kazakhstan.

II. Non-refoulement Principle in International Law

Granting asylum is undoubtedly a sovereign right of any state. However, in respect of refugees, international law sets certain limits to this right. The non-refoulement principle enshrined in Article 33 (1) of the 1951 Convention Relating to the Status of Refugees[1] and other international instruments prohibits the states to expel or return 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.

The non-refoulement principle is compulsory for any state irrespective whether it has ratified the 1951 Convention or not. In the international practice, the non-refoulement is deemed to be violated in the following cases: а) an asylum-seeker is denied access to the territory of other states; b) an asylum-seeker or refugee are subject to forced expulsion to the territory of a state, where their life or freedom would be threatened, or when they are expelled to the territory of a state, from which they can be returned to the country of their origin.

Exceptions to this principle are strictly limited; according to Article 33 (2) of the 1951 Convention, an exception is applicable only in those cases when there are reasonable grounds for regarding a refugee 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. Along with that, Article 33 is also applicable to asylum-seekers at the border and within the territory of a state until their status has been determined in a duly manner. Moreover, the application of this principle remains unchanged regardless whether an asylum-seeker has entered the territory legally or illegally.

Nonetheless, a state retains its right to cease the asylum. According to Article 32 of the 1951 Convention, “the Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order”. It should be noted that the notions of “national security” and “public order” shall not be construed in a broad sense. Apart from that, the decision on expulsion shall be reached in accordance with due process of law, and a refugee shall be allowed to appeal this decision, except “where compelling reasons of national security otherwise require”. In addition, a refugee, who is subject to lawful expulsion, shall be allowed a reasonable period within which to seek legal admission into another country[2].

It should be noted that the non-refoulement principle is also enshrined in the international human rights law, and, in particular, in the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3 thereof prohibits to “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”[3]. This Convention does not contain any exception by analogy with Article 33 of the Convention Relating to the Status of Refugees, which could allow the expulsion to the state where his life or freedom would be actually threatened. However, as a result of a rather narrow construction of the term “torture” and the need for evidence corroborating the danger of torture for a concrete person[4], this Convention can be applicable only to the limited numbers of persons.

III. The Non-Refoulement Principle in the Legislation of Kazakhstan

The non-refoulement principle is enshrined in the 2009 Refugees Law.[5] These provisions are substantial because they almost in full reflect the provisions of the 1951 Convention. For example, the expulsion is prescribed if an asylum-seeker’s application for a refugee status has been rejected with account of the final appeal stage. In addition, the Law specifies that even if an asylum-seeker has been detained for illegal entry or stay in the territory of Kazakhstan, he/she has a right to apply for asylum. In other words, the provisions of the administrative legislation of deportation of foreign nationals, who have violated the migration regime[6], do not apply automatically.

Yet, along with that, the refugee law contains certain provisions, which do not fully comply with or may lead to violation of the non-refoulement principle. In particular, these are the cases of the mass influx of refugees and extradition of offenders.

Situation of the mass refugee influx

The Law enshrines the right of law enforcement agencies to restrict or prohibit the access of asylum-seekers and refugees to certain parts of the territory “following natural and man-caused emergencies, frontier search of border trespassers, repel of military invasion or mass influx of nationals of a neighbouring state to the territory of Kazakhstan”,[7] in other words in case of a threat to the national security. The mass influx signifies the arrival of a large number of people seeking asylum during a short period of time, what makes it impossible to carry out individual refugee status determination. With account of the Law’s provisions, the most acute question concerns the denial of access to the territory in case of a mass influx generated as a result of internal armed conflicts in the neighbouring states because, in effect, this provision may be used to deny access to asylum-seekers and refugees to the territory of Kazakhstan.

Presently, the situation of a mass influx is regulated by the Emergency Situation Law.[8] However, this Law does not specify the procedural guarantees for asylum-seekers, what does not comply with the refugee protection standards.

Undoubtedly, the mass influx situation is coupled with challenges for host states; nonetheless, this should not undermine the commitment of states to provide safe asylum and observe the non-refoulement principle. Moreover, according to international law,[9] asylum-seekers shall be provided with the access to the first state, in which they seek asylum. If a state cannot host them for a long term, it is still obliged to host them temporarily without any discrimination on the ground of race, religion, ethnicity, membership of a particular social group, political opinion, country of origin or physical disability. In all cases, the non-refoulement principle should be strictly adhered to, including the access to the territory at the border entry points.

In order to address efficiently the challenges of the muss influx, it is important to develop clear guidance on emergency response, which would regulate the establishment of adaptation and filtration centres, registration and immediate referral mechanisms to the refugee status determination. Bearing in mind that in the context of the mass influx, it is impossible to carry out individual refugee status determination, it will be reasonable to elaborate relevant facilitated procedures. This approach will ensure the key principles of international protection, that is, the access to the territory and prevention of refoulement.

Extradition and refoulement

The question about the correlation of the Kazakhstan’s international obligations with regard to the non-refoulement principle on the one hand, and legal assistance in criminal cases in part of extradition on the other hand, appears quite topical.

Nowadays, Kazakhstan is bound with multilateral and bilateral extradition agreements with all neighbouring states, which are the main producers of asylum-seekers in the country. According to Article 56 of the 1993 Minsk Convention on Legal Aid in Civil, Family and Criminal Cases[10], “the Contracting States shall be obliged, in accordance with the provisions herein, upon request of another Contracting State to extradite persons found in their territories for prosecution within criminal proceedings and enforcement of court sentence”. The same provision can be found in the later and more detailed 2002 Chisinau Convention[11] on Legal Aid in Civil, Family and Criminal Cases[12]. Yet, as opposed to the Minsk Convention, the Chisinau Convention contains the guarantees against extradition, if “there are reasonable grounds to believe that the extradition request is associated with the persecution of a concerned person on the ground of race, sex, religion, ethnicity or political opinion” and if “a person, in respect of whom an extradition request is issued, has been granted asylum in the territory of the requested Contracting State”[13]. These provisions are quite advanced in comparison with the Minsk Convention. However, because the Chisinau Convention has not been yet ratified by all Kazakhstan’s neighbours, the Minsk Convention remains applicable vis-à-vis those states that have not yet ratified the Chisinau Convention. In particular, this is the status quo for the interstate relations between Kazakhstan and the Russian Federation and Kazakhstan and Uzbekistan. In practice, this means that not only asylum-seekers but also the recognized refugees are not duly protected against extradition.

Similar extradition provisions exist in the context of the Shanghai Cooperation Organizations, whose member states include Kazakhstan and China.[14]

This issue is quite significant for one more reason: it raises the question of collision between the universal human rights treaties ratified by Kazakhstan and the regional and bilateral cooperation agreements on extradition. The question on the hierarchy of international treaties can be resolved by addressing the 1945 UN Charter. Article 103 thereof establishes the priority of obligations under the Charter before any obligation following from other international treaties[15]. Next, according to Articles 55(c) and 56 thereof, all Members of the United Nations pledge themselves to take joint and separate action for the achievement of the UN purposes, including universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.[16] Apart from that, the UN Security Council and General Assembly repeatedly declared that the Members States are obliged to ensure the compliance of all measures on combating terrorism with their international obligations with regard to human rights, protection of refugees and international humanitarian law.[17] Hence, we believe that the universal human rights treaties should prevail over the regional and bilateral extradition agreements.

Apart from the collisions between the international obligations, there are other collisions between the national legislation and international standards, and further within the national legislation of Kazakhstan. For example, in line with international standards, the decision on extradition of an asylum-seeker may not be taken until the final adjudication on the asylum claim has been delivered, including at the appeal stage. Moreover, pursuant to international standards, a detainee under the extradition arrest must be provided with a right to file an application for asylum with the competent authorities of the host state[18].

As for the Kazakh national legislation, the Criminal Code of Kazakhstan states that foreigners and stateless persons, who have committed a crime outside Kazakhstan, but are at the moment present in Kazakhstan, can be extradited to a foreign state for criminal prosecution or to serve a sentence pursuant to international treaties[19]. In addition, the procedure for extradition is regulated by the Criminal Procedural Code and the Guidance of the Prosecutor General of Kazakhstan “Extradition of Offenders”. However, the Criminal Procedural Code does not contain a direct ban on extradition of asylum-seekers and refugees. The Prosecutor General’s Guidance contains certain provisions on non-extradition of recognized refugees[20]; yet, it does not contain any reference to asylum-seekers, whose asylum claims are pending adjudication by the competent state authorities. Moreover, the period for consideration of asylum claims with account of duration of all appeal stages by competent authorities and in court (eight-nine months in total) significantly exceeds the maximal term for an extradition arrest (three months). In other words, there is a collision between the national refugee legislation and legislation on extradition.

One of the means to protect asylum-seekers and recognized refugees, in whose respect there is an extradition request but no guarantee against extradition, could be the inclusion to the refugee legislation the provision on complementary forms of protection. This form of protection covers those persons who are eligible for protection outside the framework of the 1951 Convention. Though there is no single definition of the “complementary form of protection”, it is understood as temporary protection that is provided on humanitarian grounds to those persons, who cannot or do not want to return to their country of origin because of the internal armed conflict, public disorder, economic or political instability, threat to life, freedom and safety[21].

This temporary form of protection may be further used to clarify whether an extradition request in question may be associated with any potential persecution on the grounds of race, nationality, religion, membership of a particular social group or political opinion, i.e. the grounds underlying the refugee status.

Relevant amendments should be further made to the Kazakh Criminal Procedural Code to reflect the prohibition of extradition of refugees and asylum-seekers, whose asylum claims are under consideration by competent authorities. Furthermore, it will be reasonable to provide in the very Refugee Law the ban of the extradition arrest of a recognized refugee and an asylum-seeker until the official refugee status determination procedure has been exhausted at all levels and only if the final decision on denial of asylum has been rendered. Finally, it is essential to develop a mechanism to ensure the possibility to file an asylum claim and due consideration of this claim within the context of the extradition procedure.

IV. Conclusion

The right to grant and withdraw asylum is a state prerogative. Moreover, in view of the current instability of political forces in the Central Asian region and the serious threats posed by radical and extremist movements, there is a real need to take effective measures to ensure the national security and state integrity. Nevertheless, within the activity of state bodies aimed at enforcing the state borders and identification and prosecution of dangerous elements involved in terrorist and extremist acts, the state must not undermine a refugee’s right to safe asylum.

Identified collisions in the national legislation, between the national and international laws as well as the gaps in the national legislation regarding the guarantee of non-refoulement require the soonest amendment; whereas the suggested recommendation will allow to bring the domestic legislation in accordance with the international standards and establish an efficient system of safe asylum in Kazakhstan.

List of Literature:

1. Guidance Note on Extradition and International Refugee Protection (UNHCR, Geneva, 2008)
2. Guy S. Goodwin-Gill “The Refugee in International Law” (Russian edition) Moscow: UNITI, 1997
3. Convention Relating to the Status of Refugees (28 July 1951)
4. 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984)
5. UNHCR ExCom Conclusion No. 22 (1981)
6. UNHCR ExCom Conclusion No. 103 (2005)
7. Convention on Legal Aid in Civil, Family and Criminal Cases (Minsk, 22 January 1993)
8. Convention on Legal Aid in Civil, Family and Criminal Cases (Chisinau, 7 October 2002)
9. Shanghai Convention on Combating Terrorism, Separatism and Extremism (Shanghai, 15 June 2001)
10. UN Security Council’s Resolutions: SC/RES/1269 (1999) as of 19 October 1999, SC/RES/1373 (2001) as of 28 September 2001, S/RES/1456(2003) as of 20 January 2003, S/RES/1535(2004) as of 26 March 2004, S/RES/1566(2004) as of 8 October 2004, SC/RES/1617 (2005) as of 29 July 2005, S/RES/1624 (2005) as of 14 September 2005.
11. UN General Assembly’s Resolutions: A/RES/49/60 as of 9 December 2004, A/RES/51/210 as of 17 December 1996, A/RES/57/219 as of 27 February 2003, A/RES/58/187 as of 22 March 2004, A/RES/60/1 as of 24 October 2005, A/60/43 as of 6 January 2006, A/RES/60/158 as of 28 February 2006, A/RES/62/71 as of 8 January 2008, A/RES/62/159 as of 11 March 2008.
12. Refugee Law of Kazakhstan (No. 216-IV ЗРК dated 4 December 2009)
13. Emergency Situation Law (No. 19-I dated 5 July 1996)
14. Criminal Code of Kazakhstan (N 167-I dated 16 July 1997)
15. Criminal Procedural Code of Kazakhstan (No. 206-I dated 13.12.1997)
16. Code on Administrative Offences of Kazakhstan (No. 155-II dated 30 January 2001)
17. Guidance of the Prosecutor General of Kazakhstan “Extradition of Offenders” (No. 56/36 dated 8 September 1998)

[1] See the Law of Kazakhstan No. 317-1 dated 15 December   1998 года N 317-1 “Оn Accession of the Republic of Kazakhstan to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees”

[2] Article 32 of the 1951 Convention, http://untreaty.un.org/cod/avl/pdf/ha/prsr/prsr_e.pdf

[3] 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.hrweb.org/legal/cat.html

[4] Guy S. Goodwin-Gill “The Refugee in International Law” (Russian edition) Moscow: UNITI, 1997. page 147

[5] Article 14 (6), Article 2 (18)

[6] Code on Administrative Offences of Kazakhstan (No. 155-II dated 30 January 2001), Article 391-1(3)

[7] Article 6 (13-3)

[8] Articles 4(1), 4(2)

[9] UNHCR ExCom Conclusion No. 22 (1981), http://www.isp-rus.info/docs/48.jsp

[10] Ratified by Kazakhstan on 31 March 1993 (Resolution of the Supreme Council No. 2055-XII)

[11] Ratified by Kazakhstan on 10 March 2004 (Law No. 531- II)

[12] Article 66

[13] Article 89 (1 (е), (i) )

[14] See the Shanghai Convention on Combating Terrorism, Separatism and Extremism (Shanghai, 15 June 2001), Article 2 (1), http://www.sectsco.org/EN/show.asp?id=68

[15] Article 103 of the UN Charter: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” http://www.un.org/en/documents/charter/

[16] Article 55(c) of the UN Charter: “ With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: … (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Article 56 of the Charter states that All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”

[17] See Resolutions of the UN Security Council SC/RES/1269 (1999), Para. 4(iv); SC/RES/1373 (2001), Para. 3(f) and3 (g); S/RES/1456(2003), Annex, Para. 6; S/RES/1535(2004), Annex, Para. 6 of the preamble; S/RES/1566(2004), Para. 4 of the preamble; SC/RES/1617 (2005), Para. 4 of the preamble; S/RES/1624 (2005), Para. 2 of the preamble and Para. 4 of the operative part. See also Resolutions of the UN General Assembly /RES/49/60 as of 9 December 2004, Annex, Para. 5; A/RES/51/210 as of 17 December 1996, Annex, Para. 6 (with reference to Articles 1, 2, 32 and 33 of the 1951 Convention) and 7 of the preamble; A/RES/57/219 as of 27 February 2003 regarding protection of human rights and fundamental freedoms while combating terrorism, Para. 1; A/RES/58/187 as of 22 March 2004 regarding protection of human rights and fundamental freedoms while combating terrorism, Para. 1; A/RES/60/1 as of 24 October 2005 World Summit Outcome Document, Para. 85; A/60/43 as of 6 January 2006, Para. 11 and 19 of the preamble, Para. 3 of the operative part; A/RES/60/158 as of 28 February 2006 regarding protection of human rights and fundamental freedoms while combating terrorism, Para. 7 and 13 of the preamble, Para. 1 and 5 of the operative part; A/RES/62/71 as of 8 January 2008. Measures to eliminate international terrorism, Para. 12 and 20 of the preamble; and A/RES/62/159 as of 11 March 2008 regarding protection of human rights and fundamental freedoms while combating terrorism.

[18] Guidance Note on Extradition and International Refugee Protection, UNHCR, Geneva, 2008, pages 16-18

[19] Article 8 (2)

[20] Guidance of the Prosecutor General of Kazakhstan “Extradition of Offenders” (No. 56/36 dated 8 September 1998), Para. 2 (b)

[21] UNHCR ExCom Conclusion No. 103 (2005)