Borders barriers against the principle of non-refoulement: the inaccessibility of the territory and of the refugee status determination

Abstract

This study sought to determine whether the principle of non-refoulement would apply to individuals not formally recognized as refugees, and whether the prevention of access to the target state’s territory would violate such principle, besides analyzing the sovereign exercise of migration control with the threat of the non-refoulement and the human rights protected by it. Hereby, we ran a theoretical, bibliographical and documentary research, with critical and dogmatic analyses of imperative normative instruments of international law concerning the protection of refugees; of the guidelines from international organizations and legal precedence on the subject. Subsequently, we ran a contextualized study with a brief analysis of some recent cases in which barriers were employed as migration control mechanisms. As a jus cogens and customary rule of international law, the principle proves to be applicable regardless of formal recognition of refugee status, relativizing national sovereignty. Despite divergences in the application of the principle, the instating of border barriers violates the principle, since access to the target state’s territory may be needed for the process of determining refugee status to be fair and effective.