- Asylum — Non-refoulement
This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement. The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement. The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement—that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.
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