The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection

Abstract

This article elucidates how the exercise of sovereign powers in the different maritime zones pursuant to the law of the sea and customary international law gives rise to challenges in the application of the principle of non-refoulement and in the protection of asylum-seekers and refugees at sea. Particular attention must be given to the so-called nonentree mechanisms made principally to prevent a refugee having access to the procedures for the determination of his/her status. Among those are the interdiction at sea programs. The analysis will not be limited to the modalities of exercising jurisdiction; their consequences must also be considered. In fact, one of the main difficulties related to the management of refugees by sea consists in the heterogeneity of the phenomenon. Case law and practice testify that each arrival is different from another. This contribution argues that there is a common aim underlying both the law of the sea and refugee law which thus can be combined in accounting for security interests of the states as well as the protection of sea-borne asylum-seekers. The argument unfolds in five steps. First, the content and evolution of the principle of non-refoulement will be analyzed (II.). Then, the difficulties related to its application in the territorial waters will be highlighted (III.). Specific remarks will be made for the contiguous zone (IV.). Particular attention will be given to interdiction programs on the high seas (V.). The contribution will conclude with some critical remarks (VI.) that must be taken into account when interpreting the law of the sea and refugee law with regard to sea-borne asylum-seekers.