Il principio di non-refoulement: criticità applicative

The principle of non-refoulement is one of the most relevant instruments of international law for the protection of migrants. This principle prohibits the transfer of migrants to their country of origin in case these persons are afraid of being tortured or persecuted there.To understand the width of its application and the problems linked to the principle of non-refoulement, though, it is appropriate to analyze the various categories of migrants, in order to understand who can receive this protection. This process of analysis of the categories, moreover, highlights the presence of other difficulties in the generalized implementation of the guarantees for migrants. In fact, not all treaties apply to all types of migrants. Even the Geneva Convention to the Status of Refugees, as the name says, only refers to refugees. Specifically, article 1 of the Convention defines as “refugee” the person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”; therefore, its protections – including the one given by the principle of non-refoulement, established in article 33 – only guarantee this specific category of migrants; category linked to – as already mentioned - a closed list of possible causes of persecution. Other obstacles towards a harmonized implementation of the principle of non-refoulement can be found also in the differences among the treaties which define the principle. In its first definition, in the Geneva Convention to the Status of Refugees of 1951, the principle forbids the member States to “expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion” (Geneva Convention to the Status of Refugees, art. 33). The existence of various definitions and their inadequacy to actual migration patterns create difficulties in the implementation of the principle itself. In this sense, one of the biggest problems in the current scenario is the one given by the application of the principle to mass influxes. This term refers to those migrations characterized by the arrival over an international border of a large number of persons with a rapid rate and by the incapacity of the receiving State to respond adequately to the arrival of migrants (in particular, individual asylum procedures are not sufficient to deal with the high number of migrants). Different international instruments provide a different width of the range of application of the principle; the monitoring organs controlling the implementation of the principle have different levels of efficacy. The uncertainty is even wider in consideration of new migratory movements, such as the mass influxes; hence, States take advantage of this situation in order not to apply the principle of non-refoulement and the other protection for migrants. Having said that, it is impellent to reach a more shared doctrinal view on this topic, in order to cooperate with jurisprudence in order to stimulate the States towards a stronger protection of migrants.