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Non-refoulement and national security: A comparative study of UK, Canada and New Zealand

dc.contributor.advisorSawyer, Caroline
dc.contributor.authorLi, Hanxiao
dc.date.accessioned2014-09-12T05:40:34Z
dc.date.accessioned2021-11-14T08:05:10Z
dc.date.available2014-09-12T05:40:34Z
dc.date.available2021-11-14T08:05:10Z
dc.date.copyright2014-01-01
dc.date.issued2014-01-01
dc.date.updated2021-11-14T08:05:10Z
dc.description.abstract“International law generally rejects deportation to torture, even where national security interests are at stake.” ¹  There had been a fierce debate when Hassan Ahmed Shaqlane, a Somalian refugee who was sentenced to an 8-year prison term for rape and kidnapping, won his appeal against deportation, upheld by the Deportation Review Tribunal.² Controversy arose again when Al Baiiaty, an Iraqi resettlement refugee was convicted of sexual violation by rape for the fourth time. With the Court of Appeal’s noting that Mr Al Baiiaty poses a serious risk to the community³, the then Minister of Immigration called for a report on the deportation issues raised by the case.⁴  Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life⁵, which is against many states’ domestic laws and international instruments such as the International Conant on Civil and Political Rights⁶ and the Convention against Torture⁷. It has been said that even if Article 33 of the Convention relating to the Status of Refugees does not categorically reject deportation to torture on its face, it should not be used to deny rights that other legal interments make available to everyone.⁸ It is highly questionable, however, under this broad obligation, if a refugee poses a significant threat to the protecting country’s national security, what action can a state take to protect its own national security and its own people. Are provision in the Refugee Convention, the ICCPR and the CAT absolute, binding and non derogable? If so, can a state derogate from its international obligation to refoule a refugee to potential torture to protect its national security? On what grounds then, can a state derogate from it?  This paper will consider these questions. By doing so, this paper will first outline the international obligations, provided by the Refugee Convention, the ICCPR and the CAT, what is an international norm and states’ derogation rights in these provisions. The paper then looks at the courts in Canada, the United Kingdom and New Zealand’s approach in Suresh, EN⁹ and Zaoui¹⁰ when deporting a person who poses threat to national security can lead to torture and arbitrarily deprivation of life and the deportation potentially violates an international obligation or a state’s constitution. The paper will explain their approaches in relation to the different positions of their international obligations. The paper submits its concerns for some specific provisions in the Refugee Convention and the issues in exercising the absolute rights provided by the ICCPR and the CAT, as well as the ECHR. The paper finally submits its preferable approach after observing states’ practice and comparative study of the three approaches.en_NZ
dc.identifier.urihttps://ir.wgtn.ac.nz/handle/123456789/14311
dc.identifier.urihttps://doi.org/10.26686/wgtn.17007880
dc.identifier.urihttps://api.figshare.com/v2/account/articles/17007880
dc.language.isoen_NZ
dc.publisherTe Herenga Waka—Victoria University of Wellingtonen_NZ
dc.subjectNon-refoulementen_NZ
dc.subjectNational securityen_NZ
dc.subjectHuman rightsen_NZ
dc.subjectCATen_NZ
dc.subjectConvention against Tortureen_NZ
dc.subjectICCPRen_NZ
dc.subjectInternational Conant on Civil and Political Rightsen_NZ
dc.subjectRefugee Conventionen_NZ
dc.subjectECHRen_NZ
dc.subjectEuropean Court of Human Rightsen_NZ
dc.titleNon-refoulement and national security: A comparative study of UK, Canada and New Zealanden_NZ
dc.typeTexten_NZ
vuwschema.contributor.schoolSchool of Lawen_NZ
vuwschema.contributor.unitSchool of Lawen_NZ
vuwschema.subject.anzsrcfor180114 Human Rights Lawen_NZ
vuwschema.subject.anzsrcfor180116 International Lawen_NZ
vuwschema.subject.anzsrcseo970118 Expanding Knowledge in Law and Legal Studiesen_NZ
vuwschema.type.vuwMasters Research Paper or Projecten_NZ

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