Extraterritorial non-refoulement: intersections between human rights and refugee law

How does international law require States acting outside their own territories to treat refugees and other persons fleeing harm in their countries?1 This question has assumed increasing contemporary relevance in light of heightened externalised border controls, such as attempts by States to interdict migrant boats on the high seas in the Mediterranean (see, for instance Moreno-Lax 2012). However, the issue also arises in other contemporary scenarios, such as where persons seek protection in diplomatic or consular premises, where one State militarily occupies the territory of another, and where a State sets up a system for the extraterritorial processing of asylum claims.

This short analysis addresses the non-refoulement aspect of this extraterritoriality problem, i.e. protection against enforced removal to a territory where the person fears harm by a State acting outside its own territory. Inspired by the human rights focus of the volume overall, the chapter draws on current research by the author in order to examine this ever-topical concern against recent advances in the field of international human rights law. It not only confirms the view that the non-refoulement rule in human rights law applies extraterritorially, but also concludes that the resulting procedural implications should be taken seriously both for human rights law and for refugee law