This article has been written by Ishaan Garg. Ishaan is a first-year law student at Vivekananda Institute of Professional Studies, GGSIP University, Delhi.
The International law as we know of it is a soft law. The binding force behind all treaties, pacts and conventions adopted is ‘common consensus’. It is the consent of the member states that provide a backbone to principles of International Law. However, being a weak and a soft branch of law, international law is non-coercive in nature. Hence, it is up to the member states to decide whether or not to abide by such principles on the cost of their Sovereignty and National Security. This is what has exactly happened in Europe. The ongoing crisis has led to migrations on an extremely high level that it is becoming difficult for Europe to bear such a burden. Hence, the European Union has been unsuccessful in maintaining a balance between obeying to the principle of non-refoulement and protecting their National security.
Hence, they have adopted non-entree measures so as to put a hold on the inflow of refugees and asylum seekers. However, the substantial question at this very stage is whether they can be justified in doing so. In such a situation where the people of the world who have been victims, be it of terrorism spread by ISIS or the Syrian civil war, they need a helping hand from Europe which now seems to have withdrawn itself. The two major policy changes that Europe has adopted is the suspension of Schengen Agreement and the amendment to Dublin Regulation as discussed earlier. Europe has declared this to the world that it shall not provide refuge to the immigrants by compromising with the Security of the State. Can Europe be blamed for putting their State Security at a higher level than obeying the principle of nonrefoulement? The mass displacement of people and large scale immigrations have disclosed the loopholes and revealed the flaws of the principle of nonrefoulement. The outcome which was expected by establishing this principle could not be achieved as it was intended.
The principle of nonrefoulement is one of the most fundamental right of the international refugee law. Still, after expressly recognising the principle in various international instruments and discussing its necessity at global platform, complete adherence to non- refoulement seems nothing more than a dream. The ground reality is that non-refoulement is just a principle good for books. It has failed the test of time so much so that the intention with which it was established could not be fulfilled. Displacement of people has taken place at such a high level that it has become difficult for the nations to bear such a burden. It is agreed that nations have violated the principle of non-refoulement, but, there is still a reasonable explanation to that. By saying this, it does not mean that every nation has fulfilled its role and obliged to the principle of non-refoulement. There have been occurrences when the refugees were subjected to brutality and insensitivity. Nations like Sudan and Sweden have expelled the asylum seekers back to the places where they came from. This was absolutely illegal. But, there is a difference between the act of subjecting refugees to brutality and the omission to provide asylum to the people. Many nations like France, Austria, Germany etc., have started closing doors for asylum seekers. There is a reason behind such a move. It has been claimed by Europe that most of the Asylum seekers are economic migrants and not the ones who have been forced to flee because of the horrors of the war. They are persons mostly from North Africa and of Moroccan or Tunisian origin who have travelled to Europe only due to economic reasons. The high level of immigrations also holds a potential threat to the security of the entire European Union. Before providing shelter and asylums to the refugees it should also be ensured that the people who need it are genuine and pose no threat to the security of the state. The European Union had to confront all the allegations and criticisms that were made as soon as it started showing a cold response to the claims of asylum seekers. However, the continuous immigrations pushed the nations to prioritise their National Security over the obligation of International Law. If this is the situation, then it can be suggested that Europe may have an understandable reason of not fulfilling the claims of asylum seekers. Thus, approaches of non-entree were adopted to keep the refugees well of their boundaries without formally disobeying treaty obligations. The irregular migrations have exposed the faults in the International principle of Non-Refoulement as well. The drafters of this principle could not anticipate that it might suffer from any flaws in the long run as no limit was prescribed with regard to its applicability.