Non-refoulement in the Eyes of the Strasbourg and Luxembourg Courts: What Room for Its Absoluteness?

This chapter aims at proving that, if an asylum seeker challenges a removal due to the alleged breach of the ius cogens principle of non-refoulement, the standard of protection varies according to the court in charge of settling the dispute, and to the receiving State’s membership to an international organization. On the one hand, the comparative analysis of the recent judgments of the European Court of Human Rights and the Court of Justice of the European Union relating to Dublin Transfers reveals that these two Courts bear on different thresholds in order to assess the breach of the provision at stake. On the other hand, the Strasbourg Court developed a double standard of application of the principle of non-refoulement depending on the receiving State’s membership to the European Union: according to the case law of the European Court of Human Rights, if the receiving State is a member of the European Union, it must ensure a higher level of protection than the one required to other States parties to the Convention that are not members of the European Union. The application of different standards of protection risks undermining the absolute character of the principle of non-refoulement, whose respect requires a “harm-centered approach” focused solely on the consequences that the person would face if removed to the receiving State.