The search of the outer edges of non-refoulement in Europe: exceptionality and flagrant breaches

The purpose of this chapter is to examine the relationship between the prohibition on refoulement under human rights law (in particular under the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and protections under international refugee law. It illustrates that the two systems, human rights and refugee law, develop their protections in different modes. I illustrate this divergent development as a riposte to the claim that non-refoulement under human rights law effectively broadens the protection against refoulement in refugee law. Of course, in some ways, that claim is correct, but in other respects human rights non-refoulement is highly limited, particular as regards which rights violations will lead to protection against return. Currently, it tends to focus on Article 3 ECHR, the right not to be subjected to torture, inhuman and degrading treatment. The chapter critiques the outer edges of human rights non-refoulement, in particular the ECtHR’s ‘flagrant breach’ caselaw. Chapter in the book "Human Rights and the Refugee Definition: Comparative Legal Practice and Theory", edited by Bruce Burson and David J Cantor.