CYIL 2011

DIPLOMATIC ASSURANCES 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds 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. This provision applies to any person who is a refugee pursuant to the conditions set out in the Refugee Convention. 5 The person is protected from direct refoulement 6 as well as indirect refoulement, 7 for instance as a consequence of the principle of ‘first country of asylum’ pursuant to the Dublin Regulations . 8 For the “security of the country” exception to the principle of non-refoulement to apply, there must be an individualized finding that the refugee poses a current or future danger to the host State. The danger must be very serious and a threat to the national security of the host State. 9 Terrorist activities are among the acts customarily labelled as threats to national security. For the danger to the community exception to apply, the refugee in question must have been convicted of a crime of a very grave nature. Furthermore, it is a requirement that the refugee, in light of the crime and final conviction, constitutes a very serious present or future danger to the community of the host country. 10 Thus, there must be a link between the crime, the conviction, and the fact that the refugee in question “constitutes a danger to the community”. 11 T he principle of non-refoulement as enshrined in art. 33 of the Refugee Convention is part of customary international law and therefore binding on all States, including those which have not yet become party to the Refugee Convention and/or its 1967 Protocol. 12 Consequently, it is clear that the Refugee Convention allows for a balance between the protection of the individual on one hand and national security on the other hand. With regard to the burden of proof, it should be mentioned that the individual enjoys the benefit of the doubt. 13 5 Anyone who meets the inclusion criteria of Art. 1A (2) of the Refugee Convention and does not come within the scope of one of its exclusion provisions in art. 1 D, art. 1 E or art. 1 F. The principle applies equally to situations where someone has not (yet) been determined as a ‘refugee’. 6 Where the country of refuge sends (’refoules’) the individual to the country of origin where there is a risk of persecution. 7 Where a person is sent from the country of refuge to a safe third State and the third State sends the person to the country of origin. 8 The Dublin Regulation EC No. 343/2003 is a binding measure of European Community law for determining which State should be responsible for examining an application for asylum made within EU territory. The provisions of the “Dublin II” Regulation were implemented on 1 September 2003 and replaced those of the Dublin Convention. 9 A. Grahl-Madsen, Commentary on the Refugee Convention , UNHCR, 1997, Commentary to Art. 33, para 8; UNHCR, Note on Diplomatic Assurances and International Refugee Protection , August 2006, para. 12 (i). 10 UNHCR, Note on Diplomatic Assurances , op.cit., 12 (ii). A. Grahl-Madsen, Commentary on the Refugee Convention , op.cit., para. 9. 11 A. Grahl-Madsen, Commentary on the Refugee Convention , op.cit., para. 10. 12 UNHCR, Note on Diplomatic Assurances , op.cit., para. 15. 13 A. Grahl-Madsen, Commentary on the Refugee Convention , op.cit., para. 203.

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