Under traditional international law, States have a sovereign right to allow or refuse entrance of foreigners on their territory, to impose conditions to their entry, and to expel them from their territory. In accordance with their duty to protect the lives and the security of the public, States also have a legitimate interest in controlling irregular migration.
States are devoting more and more energy and resources outside their national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation crossing international borders by land, air or sea, and making their way to the country of destination. Since the early 1980s, securization of borders has become the major component of migration management policies of many Western States which increasingly seek to project enforcement of their immigration laws beyond their borders.
States foster efficient repressive policies through bilateral, international and regional cooperation. Numerous international treaties have consequently been adopted, regional efforts have been undertaken and a number of consultative processes have been initiated at regional level in stemming irregular migration. The outcome is the emergence of sophisticated and diversified non-entrée politics which create ‘security perimeters’ as a means to ensure greater protection of States’ borders.
Non-entrée politics are aimed at the blocking of free mobility to the North. They are directed indiscriminately against all irregular migrants including refugees and asylum-seekers.
They result in asylum-seekers and refugees being denied access to international protection or being returned directly or indirectly to the frontiers of territories where their life or freedom would be threatened. As such, the politics of non-entrée ultimately erode the institution of asylum, especially the principle of non-refoulement.
Non-entrée politics also leave desperate people with no option but to rely on more disruptive informal networks or people-traffickers in their search for a better life.
States that enforce non-entrée measures, violate their obligations under international refugee law and international human rights law.
The dichotomy between the State’s legitimate interest to ensure national security and its international obligations has become more apparent since the terrorist attacks of 9/11 on the USA.
The purpose of this article is to analyse the impact of the politics of non-entrée on States’ obligations of non-refoulement under international refugee law.
1. Principle of non-refoulement: State responsibility and extraterritoriality Article 33(1) of the 1951 Convention relating to the Status of Refugees codifies the non-refoulement principle which is the cornerstone of international refugee protection. This principle underpins the right to seek and enjoy asylum from persecution as enshrined in Article 14(1) of the 1948 Universal Declaration on Human Rights.
Non-refoulement is also considered as a principle of customary international law. Several international treaties prohibit the return of persons to particular kinds of harm including the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the African Charter on Human and People’s Rights, the American Convention on Human Rights. The Charter of Fundamental Rights of the European Union contains an explicit and absolute obligation of non-refoulement in its Article 19(2). Likewise, the obligation of non-refoulement under Article 3 of the European Convention on Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the Convention Against Torture is absolute. No exceptions and no derogations are permitted.
Non-refoulement is an evolving principle:...