Auswahl der wissenschaftlichen Literatur zum Thema „Doctrine of Non-refoulement“

The increasing number of refugees is becoming a financial burden for the host countries. It impacts their economic prosperity and creates extra pressure to meet international regulations. This study describes how the doctrine of non-refoulment and burden sharing works in international refugee law to ensure the protection of all refugees. It discusses the rights of accommodation, education, food, protection, and all other economic rights within host countries. It also highlights the presence of proportionate refugee placement in various states and assesses the economic and social consequences of relocating refugees to host countries under international law. The recommendations of the study help to defend refugees from various other human rights violations and improve the burden-sharing process through the operationalization of international refugee laws.

Due primarily to increases in individuals fleeing violence and turmoil in Central America, over 40% of noncitizens arriving in the United States are put on a fast-track removal process and subsequently claim fear of returning to their home countries. A decade ago, the number was only 5%. This influx of asylum-seekers at the border has led to tension between those who wish to protect them and those who view such migrants as “invaders.” In 2019 and 2020, the Trump Administration proffered sweeping regulatory changes with the aim to substantively and procedurally restrict noncitizens’ access to protection from persecution and torture in their home countries. Although not all of these proposals may ultimately go into effect, it is vital to explore the legality of such provisions lest they reappear in subsequent administrations. Pursuant to domestic and international law, the United States is subject to the non-refoulement obligation, which prohibits forcibly returning a refugee to a country that threatens their life or freedom. All humans have the fundamental right to not be returned to a country where they will be persecuted or tortured, regardless of their legal status in the country where they seek protection. In the United States, noncitizens facing qualifying persecution or torture upon return to their home countries are entitled to protection in the form of statutory withholding of removal (“withholding”) or withholding or deferral of removal pursuant to the Convention Against Torture (“CAT protection”). This Comment argues that noncitizens vindicating their non-refoulement rights by seeking withholding or CAT protection must receive stronger procedural protections because of the fundamental interests at stake. Specifically, two issues are addressed. First, the use of the “reasonable possibility” standard of proof at the fear screening stage, a practice expanded in recent years, is inappropriate and a violation of the non-refoulement obligation. This standard is suited for final determinations on the merits, not threshold screenings. Because of the well-documented problems with fear screenings, even absent an increased standard of proof, this practice would result in an impermissible risk that individuals with valid claims would be returned to face persecution, torture, or even death without ever being fairly heard. Second, the unique position of these noncitizens, from legal and humanitarian perspectives, should entitle them to Constitutional Due Process Clause protections. Because their right to non-refoulement is not subject to the discretion of the Executive, the denial of due process cannot be justified by the “entry fiction,” the legal doctrine that gives certain noncitizens inside the United States limited constitutional protections because the law considers them to be detained at the border.

The article is a response to the commentaries on „Migration und Weltbürgerrecht“ (2019) by Gustavo Leyva, Daniel Loewe and Roberta Picardi. After a brief introduction, I highlight the central questions of the commentaries and formulate answers to the objections raised. The three commentaries deal with four major topics: the reconstruction of the basis of Kant's justification of Cosmopolitan Right, its scope with special reference to the prohibition of non-refoulement, the significance of public space in Kant's argumentation in the Doctrine of Right, and the argumentative status of provisional possession in Kant's political philosophy. Der Beitrag antwortet auf die Kommentare zu Migration und Weltbürgerrecht von Gustavo Leyva, Daniel Loewe und Roberta Picardi. Nach einer kurzen Einführung stelle ich die zentralen Fragen der Kommentare heraus und formuliere Antworten auf die vorgebrachten Einwände. Die drei Kommentare beschäftigen sich dabei mit vier größere Themenkomplexen: die Rekonstruktion der Begründungsgrundlage des Weltbürgerrechts bei Kant, dessen Reichweite unter besonderer Berücksichtigung des Verbots auf Nichtabweisung, die Bedeutung des öffentlichen Raums in der Argumentation Kants in der Rechtslehre und den argumentativen Status des provisorischen Besitzes in Kants Rechtsphilosophie.

The temporary protection directive is one of the noblest mechanisms of the European refugee protection regime. The European Union has designed it following the principle of temporary protection and non-refoulement of international refugee law. The United Nations Refugee Convention is the institutional root of these principles. In 2001, the EU has adopted the directive to improve its refugee protection mechanism. But they have never activated the directive until the current Ukrainian refugee crisis. This has remained as a piece of paper or unnecessary tool for the European countries. Their reluctance towards activating the directive seems to be hegemonic and political to some extent. Though they had all the grounds for activating the directive during the Syrian, Afghan or Tunisian refugee crisis, they did not choose to activate it. The paper doesn’t oppose the activation of TPD for Ukrainian refugees. It only explores and discusses the dualist role of the EU in activating TPD. The paper is also asking for its universal application for any refugees irrespective of their origin and the EU’s geopolitical interest. Lastly, it solicits for the utilization of the ‘doctrine of temporary refuge’ across the countries in the best possible manner considering the example of EU’s TPD.

En este breve comentario al Dictamen Consultivo OC-25/18, emitido a petición de la República del Ecuador, defendemos que, ante la amplitud que el Tribunal Interamericano reconoce a los efectos extraterritoriales que se derivan para el Estado de su compromiso con el principio del non-refoulement, el instituto del asilo diplomático es, de alguna forma, superado por la doctrina de la eficacia extraterritorial de los derechos humanos.

The principle of non-refoulement is one of the most relevant instruments of international law for the protection of migrants. This principle prohibits the transfer of migrants to their country of origin in case these persons are afraid of being tortured or persecuted there.To understand the width of its application and the problems linked to the principle of non-refoulement, though, it is appropriate to analyze the various categories of migrants, in order to understand who can receive this protection. This process of analysis of the categories, moreover, highlights the presence of other difficulties in the generalized implementation of the guarantees for migrants. In fact, not all treaties apply to all types of migrants. Even the Geneva Convention to the Status of Refugees, as the name says, only refers to refugees. Specifically, article 1 of the Convention defines as “refugee” the person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”; therefore, its protections – including the one given by the principle of non-refoulement, established in article 33 – only guarantee this specific category of migrants; category linked to – as already mentioned - a closed list of possible causes of persecution. Other obstacles towards a harmonized implementation of the principle of non-refoulement can be found also in the differences among the treaties which define the principle. In its first definition, in the Geneva Convention to the Status of Refugees of 1951, the principle forbids the member States to “expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion” (Geneva Convention to the Status of Refugees, art. 33). The existence of various definitions and their inadequacy to actual migration patterns create difficulties in the implementation of the principle itself. In this sense, one of the biggest problems in the current scenario is the one given by the application of the principle to mass influxes. This term refers to those migrations characterized by the arrival over an international border of a large number of persons with a rapid rate and by the incapacity of the receiving State to respond adequately to the arrival of migrants (in particular, individual asylum procedures are not sufficient to deal with the high number of migrants). Different international instruments provide a different width of the range of application of the principle; the monitoring organs controlling the implementation of the principle have different levels of efficacy. The uncertainty is even wider in consideration of new migratory movements, such as the mass influxes; hence, States take advantage of this situation in order not to apply the principle of non-refoulement and the other protection for migrants. Having said that, it is impellent to reach a more shared doctrinal view on this topic, in order to cooperate with jurisprudence in order to stimulate the States towards a stronger protection of migrants.

Immigration is a matter of the movement of people into and out of Indonesian territory which is motivated by several factors such as socio-cultural, political and economic which are the reasons why foreigners migrate. The Immigration Office is under the Directorate General of Immigration and is the responsibility of the Ministry of Law and Human Rights and has the authority to regulate the presence and activities of foreigners while they are in Indonesian territory. Immigration adheres to a selective policy system, which means that only useful and useful foreigners are allowed to enter Indonesian territory and do not disturb the country's sovereignty. International law applies the principle of non-refoulement, namely prohibiting the expulsion or refusal of foreigners to return to their country of origin for certain reasons. This principle aims to protect the human rights of refugees. National interests are not linear with international legal interests. Therefore, refugees cannot be separated from Immigration's responsibility in carrying out supervision and providing enforcement of immigration law. This research uses a normative-empirical research method which refers to the provisions in primary and secondary legal studies. Researchers collect related data from legal principles, legal conceptions, views, legal doctrines, statutory regulations and the legal system as the main focus.

Este comentario analiza los argumentos jurídicos desarrollados por la Gran Sala del TEDH en el asunto N.D. y N.T. contra España. A través de un examen de la jurisprudencia del propio Tribunal y de los análisis doctrinales más recientes, el presente comentario lleva a cabo un estudio detallado de los fundamentos jurídicos de una sentencia sin precedentes. El pronunciamiento rechaza que la protección del art. 4 del Protocolo 4 del CEDH, que prohíbe las expulsiones colectivas, sea aplicable a los demandantes, entregados por parte de la Guardia Civil a las autoridades marroquíes tras cruzar la frontera a través de la valla de Melilla. Al condicionar la obligación del Estado de respetar el principio de non-refoulement a la conducta de los demandantes y a la existencia de impedimentos objetivos para acceder a las vías legales de entrada, el Tribunal se aparta de su propio legado garantista con un tentativo poco logrado de justificar jurídicamente las devoluciones en caliente.

This article examines two questions: first, whether the Malaysian law regarding admission of asylum-seekers into its territory is consistent with international law, and second, whether the asylum-seekers who are already residing in Malaysia can be deported back to their places of origins. In answering these questions, this article analyses the legal aspects of the right to seek asylum under international law and its relation to the rule on non-refoulement. Additionally, it also examines the relevant provisions in the Malaysian legislations that regulate the admission of non-citizens into the country. This study is doctrinal legal research which is qualitative. The data used in this research was collected from library-based resources. These data were then analysed by using methods of content analysis as well as critical analysis. The article found that there are inconsistencies between international law and Malaysian law in matters concerning asylum-seeker’s admission and those asylum-seekers in Malaysia should not be deported. Therefore, this study suggests that Malaysia should amend the provisions in the Immigration Acts 1959/1963 and the Passports Act 1966. However, if the amendment of these legislations is not practical, it suggests that the Minister in charge of immigration affairs to make an order of exemption to the asylum-seekers so that their entry at the border would not be denied. This article shows that despite states’ firm belief that they are entitled to use domestic law to deny the admission of asylum-seekers into their territory, international law provides a few mechanisms to remedy the legal loopholes.

The present decade is confronted with unprecedented refugee crises, dwarfing all similar refugee crises ever witnessed by mankind before. The plight of asylum-seekers, particularly prior to the determination of their refugee status by the host country, is of great concern to the UNHCR and the international community, as this is the time when they are most vulnerable. The sad situation of these asylum-seekers, their sufferings on small boats being packed like sardines on angry seas, and their pain in the hands of cruel human traffickers, beg the crucial question of whether they are protected in any way by international refugee law or left unprotected. With a view to answering this question, the present study applies the legal doctrinal method and attempts a holistic interpretation of articles 1A(2), 31(1) and 33 of the 1951 Refugee Convention. The study finds that the term ‘refugee’ in these articles is in effect referring to ‘asylum-seekers’ who fulfil the constituent elements of a refugee under the Convention and that these asylum-seekers cum refugees are protected by the Convention even before the regularisation of their refugee status. The key protection stems from the principle of non-refoulement. State practice nevertheless is not encouraging and potential States of refuge are very weak in honouring this principle, which is a corner stone of international refugee law. The study concludes with suggestions for resolving this core issue.