Non-Refoulement Obligations in Public International Law: Towards a New Protection Status?

Abstract

Where do non-refoulement obligations come from, and what is their status, scope and content under international law? This chapter seeks to answer these questions in two ways. For the most part, it offers a contemporary account of the many sources of non refoulement obligations under international law, including customary international law. This is essentially an analysis of the lex lata. In its final part, the chapter considers whether a new understanding of non refoulement may be possible by adopting a different perspective on its nature. Arguing de lege ferenda, is non refoulement becoming something more than just the most prominent of the many rights enjoyed by refugees and other individuals at risk of ill treatment? Has the European Union Qualification Directive started a transformation that will eventually lead to the recognition of non refoulement as a status of international protection alongside (rather than embedded into) ‘refugee status’ and EU ‘subsidiary protection’?

Keywords: non-refoulement, refoulement, refugee, asylum, customary international law, complementary protection, subsidiary protection