The limits of refugee protection in mass influx situations

Are there exceptions to non-refoulement?

Abstract

This decade has witnessed a striking rise in the number of refugees globally, a category of persons whom enjoy the right of non-refoulement, which dictates that no refugee or asylum seeker is to be returned to any territory where he or she may face persecution, torture, or other ill-treatment. This fundamental obligation is both of a customary nature and enshrined in numerous instruments, the most pertinent of which for the purposes of refugees being the 1951 Convention Relating to the Status of Refugees. Despite this, an alarming trend has emerged in the practice of states in direct contravention thereto. A number of states have sought to curb refugee movement and intake through, inter alia, bilateral agreements and forcible repatriation. In light of this, this article undertakes a critical examination of the principle of non-refoulement, with a view to demonstrating its patent inviolability. The article responds to the proposition that large-scale refugee movements may justify the institution of a system exempting states from honouring the international legal obligation at issue, to which it argues that there can be no viable grounds on which to derogate from the cornerstone of refugee protection. It first explores non-refoulement’s centrality to the refugee protection framework in international law, particularly focusing on the context in which the 1951 Convention was drafted, the normative character of the principle, derogations provided for in human rights treaties, and existing coping mechanisms. The paper thereafter critically assesses the conceivable theoretical and practical consequences of allowing exceptions to the cardinal rule in times of mass influx situations.