In Defence of Non-Refoulement

Abstract

The misleading and overbroad notion is widespread that there is no right of asylum of the individual set out in the Refugee Convention but rather that the right of asylum is instead purely a State discretionary prerogative. That over-simplistic perspective further seems to be premised on an erroneous view of the refugee asylum seeker as ‘the other’ in the sense also of being a person beyond the sovereign protective jurisdiction of any State but for the discretionary decision of a particular State to exercise its authority and control over the asylum seeker and possibly grant asylum. Yet, as the analysis here (it is contended) illustrates in respectful opposition to the holding of the European Court of Justice Grand Chamber in X and X v. Belgium; the asylum seeker is not beyond the protective aspect of democratically based national or regional law. Under law that is grounded in democratic values, which law is inevitably and inextricably bound with respect for fundamental human rights, an absence of a positive ‘duty to protect’ (purportedly flowing from, for instance, the ostensible declining by a prospective asylum State of jurisdiction over an asylum request) is, on the view here, but a ‘legal fiction’ where refoulement would be the practical effect. It is, however, a legal fiction that when adopted and applied to actual decision-making generally has tragic consequences for refugees seeking and in dire need of asylum.