Multifaceted Asylum Triangle: Does Fragmentation of the Right to Asylum and the Non-Refoulement Rule Deters the Functioning of Equitable and Predictable Burden- and Responsibility-Sharing Mechanism on Refugees?

Abstract

The global refugee protection system is founded on two core values, assuring a safe and dignified life away from violent regimes and conflicts: the right to asylum and the non-refoulement rule. While there are no internationally agreed definitions for these concepts, their fragmentation affects the equitable and predictable burden- and responsibility-sharing, and subsequently, successful international cooperation in refugee matters. 

By analysing the right to asylum in legal theory and examining its application in the jurisprudence of international human rights monitoring bodies, this article seeks to explore the complexity of heterogeneous approaches with regard to refugees. Furthermore, the impediments to the functioning of the current refugee protection regime is identified by analysing the complicated nature of its umbrella maxim - the non-refoulement rule. The article examines how the lack of clarity on the contents of the right to asylum and the non-refoulement rule causes different, sometimes contradictory, approaches regarding the corresponding international obligations of states. It further explores how the diversified understanding of these foundational principles makes it difficult to identify common protection needs and the responsibilities of states with regard to international cooperation and burden- and responsibility-sharing on refugee matters. 

Eventually, the fragmentation of these core values threatens their unequivocal application and results in failing refugee protection regimes. Consequently, this article argues that a common understanding on the right to asylum and non-refoulement rule represents a condicio sine qua non for securing equitable and predictable burden- and responsibility-sharing mechanism in refugee matters.