Challenges to the right to seek asylum and the principle of non-refoulement : the emphasis of state sovereignty over refugee protection

Abstract

This paper proceeds from the view that refugee law is fundamentally a means of reconciling national self-interest to the inevitability of involuntary migration. The cornerstone of refugee protection is asylum. The essence of asylum is protection, consisting of a number of socio-economic rights, which admittedly is not within the scope of this paper. Rather, chapter II examines asylum, not as a right, but as a discretionary exercise on the part of states by virtue of the right to seek asylum, illustrating its basis in history and law. The reluctance of states to compromise their sovereignty continues to emerge in the second chapter, especially in consideration of the failed 1977 Universal Convention on Territorial Asylum. The right to seek asylum does not exist in a vacuum, but necessitates access to a determination procedure in order to qualify for protection. Unless an asylum seeker has access to a country in order to exercise such right, it remains nothing more than a legal fiction. The states' duty of non-refoulement, that is not to expel or return an asylum seeker, is examined in chapter III, as it developed as a legal and customary norm, notwithstanding the practices and policies of governments, which have tended to ignore their international obligations. In chapter IV, the author questions whether two forms of state cooperation, supposedly aimed at creating a more efficient refugee regime - the Safe Third Country concept and a system of burden-sharing - are, in fact, methods of shifting the burden associated with refugees onto other states, and ignoring their international obligations. Interestingly, chapter V continues to scrutinize those elements that are incompatible with refugee protection. This has inevitably led the author to propose a number of recommendations in her final chapter for a revitalized refugee regime, aimed at the protection of asylum seekers and refugees, as it should always be. As states have become increasingly reluctant to fulfill their international obligations, the reform of refugee law must be placed on the international agenda.