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.