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This chapter examines the loss and denial of refugee status and its benefits. Most international instruments not only define refugees, but also provide for the termination or denial of refugee status and the withdrawal of protection. The International Refugee Organization (IRO) Constitution, for example, described the circumstances in which refugees and the displaced would ‘cease to be the concern’ of the organization, and excluded various others, including ‘war criminals, quislings and traitors’, and ‘ordinary criminals extraditable by treaty’. Article 14 of the Universal Declaration of Human Rights prohibits invocation of the right to seek asylum ‘in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. These categories have been expanded in other instruments and in State practice so that, in general, refugee status may be lost or denied because of voluntary acts of the individual; a change of circumstances; where protection is accorded by other States or international agencies; and in the case of criminals or other ‘undeserving’ cases.

This chapter evaluates the principle of non-refoulement. In the context of immigration control in continental Europe, refoulement is a term of art covering, in particular, summary reconduction to the frontier of those discovered to have entered illegally and summary refusal of admission of those without valid papers. Refoulement is thus to be distinguished from expulsion or deportation, the more formal process whereby a lawfully resident alien may be required to leave a State, or be forcibly removed. The principle of non-refoulement prescribes, broadly, that no refugee should be returned to any country where he or she is likely to face persecution, torture, or other serious ill-treatment. The chapter examines the sources of the principle; the question of ‘risk’; the personal scope of the principle, including its application to certain categories of asylum seekers; exceptions to the principle; and its operation in the context of extradition and expulsion.

This chapter studies nationality, statelessness, and protection. Domestic law determines the content of nationality, and historically only those elements of nationality bearing on the relations between States were considered of relevance to international law. Questions of nationality, therefore, are in principle within the reserved domain of domestic jurisdiction, even if that leaves many questions open. At one time, it was easier to envisage that the realm of the domestic might not be co-extensive with the realm of the international—that a State’s nationals for the purposes of international law, might yet be divided ‘back home’ into those who did, and those who did not, enjoy the full benefits of civil status. In a post-modern age sensible of human rights, such distinctions, though not unknown, are difficult to justify. If the domestic conception of citizenship did not encompass a sense of protection by the State, including admission or re-admission, then it failed as an instance of nationality in the sense of international law. The chapter then reflects on statelessness in international law and practice. It looks at the elimination and prevention of statelessness and the protection of stateless refugees.

This chapter describes how the main treaties governing the status and treatment of refugees have attracted wide, if not universal acceptance, although they do not in fact either comprehend every refugee known to the world, or, in many cases, offer any but the most basic guarantees. Indeed, both the 1951 Convention and the 1967 Protocol are widely accepted. For those found to qualify, the benefits for which they call are often improved upon in actual practice, and supplemented substantially or filled out by the provisions of regional and related instruments. The Convention and the Protocol represent a point of departure in considering the appropriate standard of treatment of refugees, often exceeded, but still at base proclaiming the fundamental principles of protection, without which no refugee can hope to attain a satisfactory and lasting solution to his or her plight. The chapter examines the provisions of these and related agreements, with a view to determining the appropriate convention standards of treatment applicable to refugees and asylum seekers, whether lawfully or unlawfully in the territory of contracting States.

This chapter explores the development of the principle of non-refoulement beyond the Refugee Convention. In broad terms, this can be described as ‘complementary protection’ because the non-refoulement obligation derives from sources that are complementary to the Refugee Convention. However, though not a term of art, ‘complementary protection’ commonly implies the grant of a domestic legal status as well. Under general international law, the principle of non-refoulement is wider than its expression in article 33 of the 1951 Refugee Convention. While States have always recognized, to varying degrees, the protection needs of people falling outside the ‘refugee’ definition in article 1A(2) of the Convention, it is only in the last 25 years or so that they have begun to articulate such protection as an international legal obligation, rather than as a matter left to the discretion and humanitarian goodwill of national governments.

This chapter discusses the determination of refugee status. The legal consequences that flow from the formal definition of refugee status are necessarily predicated upon determination by some or other authority that the individual or group in question satisfies the relevant legal criteria. In principle, a person becomes a refugee at the moment when he or she satisfies the definition, so that determination of status is declaratory, rather than constitutive. However, while the question of whether an individual is a refugee may be a matter of fact, whether or not he or she is a refugee within the 1951 Convention, and benefits from refugee status, is a matter of law. Problems arise where States decline to determine refugee status, or where States and the Office of the United Nations High Commissioner for Refugees (UNHCR) reach different determinations.

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

This chapter details how, under general principles of international law, State responsibility may arise directly from the acts and omissions of government officials and agents, or indirectly where domestic legal and administrative systems fail to implement the observance of international standards. The fact that the harm caused by State action may be inflicted outside the territory of the actor, or in an area identified by municipal law as an international zone, in no way diminishes the responsibility of the State. While the principle of non-refoulement does not entail a right for refugees to be granted asylum in a particular State, it does require States to ensure that whatever course of action they adopt, refugees are not sent—either directly or indirectly—to a place where their lives or freedom would be in danger on account of one of the five Convention grounds, or contrary to the principle of non-refoulement under human rights law. In order to give effect to those obligations consistently with the general rule, ‘States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures’. The chapter then looks at the relationship between the principle of non-refoulement and flight by sea.