I confini potestativi del diritto alla protezione internazionale : Tra natura dichiarativa e diritto vivente nel processo di inclusione

This paper explores the structural tension between the declaratory nature
of the right to international protection – as a fundamental right recognized
ipso iure upon meeting certain conditions – and the discretionary exercise of
state and supranational sovereignty in its actual implementation. The article
examines how administrative, legal, and technological practices – despite operating
within a formally rights-based framework – produce a preemptive and
selective filtering of individuals deemed “deserving” (instead of recognizing
a form) of protection. Through an analysis of jurisprudence, legislation, and
theory – including the new EU Pact on Migration and Asylum, the designation
of safe third countries, and Italian cases involving the externalization of
detention facilities – the article highlights the conflict between legal universalism
and the differential governance of mobility. In this context, the paper
calls for a critical reappraisal of the non-refoulement principle and the epistemological function of asylum law, stressing the need to restore the refugee
subject and fundamental human rights to the center of the legal and political
debate.