A House with Two Rooms - The Advocates for Human Rights

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Appendix C
for regarding 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.” 17
Under Article 2(3) of the OAU Refugee Convention, a state is obliged not to return an individual
from its frontiers to a territory where he or she would be subject to the treatment outlined in Article
1 18 (see Section 1, above). Again, relative to other international standards, Article 2(3)’s non-refoulement
standard is generous to displaced individuals. First, an individual may not be returned if he or she
would face treatment encompassed by the expanded generalized violence refugee definition found
in Article 1. Second, an individual may not be expelled from a country’s “frontiers,” suggesting that
a State’s obligation extends to those over whom it exercises control, not only those who are within
its territory. 19 The African [Banjul] Charter on Human and Peoples’ Rights (African Charter) also
maintains an absolute prohibition on the mass expulsion of non-nationals on account of their
membership in “national, racial, ethnic or religious groups.” 20
The United States executes its obligation to avoid refoulement through the concept of withholding of
removal. 21 The Immigration and Nationality act (INA) prohibits the removal of an alien to a country
if it is determined that the alien’s life or freedom would be threatened in that country because of
the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 22
Withholding of removal is mandatory once the alien establishes a clear probability that his or her
life or freedom will be threatened on account of one of the protected grounds. Withholding of
removal may also be granted to persons who establish a clear probability of torture, fulfilling the
government’s obligations under the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). 23
c. Durable Solutions
Voluntary repatriation, local integration, and third-country resettlement constitute what are
commonly referred to as durable solutions to refugee crises. 24 These durable solutions relate directly
to the tension between states’ obligation against refoulement and their sovereign right to determine to
whom, if anyone, an offer of permanent asylum will be granted. While refugees must not be forced
to return to their country of origin involuntarily, 25 states are under no international legal obligation 26
to offer asylum.
The durable solutions often may be in conflict with one another. The decision to offer third-country
resettlement is complex, involving foreign policy, humanitarian, and practical considerations. 27
Designation of third-country resettlement, for example, can result in a “magnet” effect of new
migration and may be resisted by the government of the country of first asylum 28 or may disrupt
efforts toward voluntary repatriation – long considered the most preferred solution by the United
Nations High Commissioner for Refugees (UNHCR). 29