1. Overview of International Law on "Strangers"

Universal Declaration of Human Rights (UDHR) :

• Article 13 : Right to free movement within borders and the right to leave/return to one’s country.
• Article 14 : Right to seek asylum, excluding cases involving non-political crimes.
• Article 15 : Right to a nationality and protection against arbitrary deprivation of nationality.
• Article 28 : Every individual has the right to a social and international environment that allows for the effective realization of all rights and freedoms set forth in the declaration, which implies that states must work together to create conditions of peace, of justice and security so that human rights are universally respected

International Covenant on Civil and Political Rights (ICCPR) :

• Article 12 : Protects freedom of movement for those lawfully within a state.
• Article 13 : If a foreign person is in a country that is a party to the Convention, he or she may be expelled only if the expulsion decision is taken in accordance with the legal procedures of the country - the foreign national has the right to present his case with the assistance of a lawyer or any other person of his choice in order to challenge his expulsion by having his case examined by a competent legal authority except in cases where there are concerns of national security (like serious threats to the country) that make this impossible. 
• Article 24 : Every child has the right to acquire a nationality.

Principle of Non-Refoulement :

• Principle prohibiting the expulsion or return of refugees to territories where their life or freedom would be threatened = recognized under Art. 33 of the 1951 Refugee Convention and ICCPR General Comment No. 31.

1951 Refugee Convention (CSR51)

Initially adopted in the post-WW2 context, the CSR51 was designed to address refugee crises in Europe by providing a framework for defining who qualifies as a refugee and set minimum standards for their treatment.

• Art. 1A(2) defines a refugee as a person who, due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside their country of nationality and unable or unwilling to avail themselves of its protection.

Core Principles of the Convention :

• Non-Refoulement (Art. 33) : This principle, widely recognized as customary IL, prohibits the return of refugees to territories where they face threats to life or freedom, marking a cornerstone of refugee protections.
• Rights and Freedoms: The Convention establishes several rights for refugees, including : Freedom of Religion (Art. 4) and Right to Work (Art. 17-19), Right to Access Courts (Article 16).
• No Penalty for Illegal Entry (Art. 31) : Convention prohibits penalizing refugees who enter a country without authorization if they come directly from a place where their life or freedom was threatened.

1967 Protocol

The 1951 Convention initially applied only to events occurring in Europe before January 1, 1951 but by the 1960s, displacement due to conflicts and persecution had become global, necessitating an extension of the Convention’s scope.

Therefore, the 1967 Protocol was elaborated and removed the geographical and temporal limitations, making the Convention’s protections globally applicable.

• It maintained the same definition of a refugee and non-refoulement provisions but allowed the Convention’s protections to apply to new and future refugee situations.

2. Expanded Refugee Definitions and Regional Instruments

• Art. 1(2) 1969 OAU Convention : Expands the definition to include individuals fleeing due to external aggression, occupation, or public order disruptions.
• Cartagena Declaration (1984) : In Latin America, includes people fleeing generalized violence or internal conflicts in addition to the 1951 criteria.
• UNHCR's 2002 Guidelines on International Protection provide essential criteria for interpreting "membership of a particular social group" within the refugee definition in Article 1A(2) of the 1951 Refugee Convention and its 1967 Protocol.

Paragraph 11 clarifies that a particular social group must have two core elements :

=> Innate or Immutable Characteristics : Members share characteristics that are either innate (e.g., gender) or so fundamental to their identity or conscience that they should not be expected to change.

=> Perceived Distinctiveness : The group must be recognized as distinct by society, either due to the perception of common traits or because they face discrimination.

> These guidelines enable a more comprehensive assessment, ensuring protection for diverse groups who may not fit strictly within race, religion, or political categories but are nonetheless at risk of persecution (e.g; Women facing gender-based persecutions or persecutions related to one's sexual orientation).

3. Non-Refoulement principle

• Art. 33 of 1951 Refugee Convention : The cornerstone of non-refoulement.
• Art. 6-7 ICCPR : Prohibits deportation when there is a risk of torture or inhuman treatment.
• Art. 3 CAT : Prevents return to states where torture is likely.
• Art. 3 ECHR : Foundational in cases like Soering v. United Kingdom, ECHR (1969) for prohibiting extradition to face potential inhuman or degrading treatment :

> Jens Soering, a German national was detained in the UK after being accused of murder , which sought to extradite him to the US, where he would face a significant risk of experiencing inhuman or degrading treatment due to the "death row phenomenon"— the psychological distress and long wait for execution often associated with capital punishment in the U.S.

> The Court concluded that the psychological suffering he would endure from prolonged detention awaiting execution constituted inhuman treatment in accordance to art. 3.

> This decision was a pivotal expansion of Art. 3’s scope, as it extended the protection against inhumane treatment to cases where indirect consequences (like detention conditions in another state) could lead to suffering.

> The "death row phenomenon" became a recognized factor in assessing inhuman or degrading treatment.

3. Non-Refoulement principle

• Art. 33 of 1951 Refugee Convention : The cornerstone of non-refoulement.
• Art. 6-7 ICCPR : Prohibits deportation when there is a risk of torture or inhuman treatment.
• Art. 3 CAT : Prevents return to states where torture is likely.
• Art. 3 ECHR : Foundational in cases like Soering v. United Kingdom, ECHR (1969) for prohibiting extradition to face potential inhuman or degrading treatment :

> Jens Soering, a German national was detained in the UK after being accused of murder , which sought to extradite him to the US, where he would face a significant risk of experiencing inhuman or degrading treatment due to the "death row phenomenon"— the psychological distress and long wait for execution often associated with capital punishment in the U.S.

> The Court concluded that the psychological suffering he would endure from prolonged detention awaiting execution constituted inhuman treatment in accordance to art. 3.

> This decision was a pivotal expansion of Art. 3’s scope, as it extended the protection against inhumane treatment to cases where indirect consequences (like detention conditions in another state) could lead to suffering.

> The "death row phenomenon" became a recognized factor in assessing inhuman or degrading treatment.

Hirsi Jamaa and Others v. Italy, ECHR (2012) is a landmark case regarding the rights of asylum seekers and the principle of non-refoulement in the context of extraterritorial actions by states.

• In 2009, the applicants (Somali and Eritrean nationals) left Libya intending to reach Italy to seek asylum but were intercepted by the Italian coast guard in the Mediterranean and immediately returned to Libya who was known at that time for exercising harsh treatment of migrants, including detention in degrading conditions.
• Italy argued that since the interception occurred on the high seas, outside its national territory, it was not bound by the ECHR
• The ECHR established that a state’s HR obligations extend beyond its territory if it exercises control over individuals elsewhere - therefore, Italy was indeed bound by the ECHR, even on the high seas, because its coast guard exercised effective control over the applicants when it intercepted and detained them.
• Court found that Italy violated Art. 3 by returning the applicants to Libya, where they faced a real risk of inhuman treatment.
• It determined that Italy's action amounted to collective expulsion because the applicants were returned without individual assessments of their situations, therefore infringing on Art. 4 of Protocol No. 4.
• It ruled that Italy violated Art. 13 because the applicants had no opportunity to challenge their return or seek asylum by explaining their need for protection.

This case reinforced the extraterritorial application of HR protections, established the need for individual assessments during interceptions at sea and underlined the importance of procedural safeguards, such as individual assessments and access to asylum procedures, when dealing with migrants and asylum seekers intercepted at sea.