During the early twentieth century, and before an international legal regime for refugees developed, Europe was confronted with two major humanitarian crises: the 1915 Armenian Genocide and the 1917 Russian Revolution. These events drove massive numbers of individuals to flee their homelands. In the early 1920s, the League of Nations recognized that certain categories of individuals required international legal structures of protection to ensure proper safeguard. Accordingly, the League of Nations supported international protection of Armenian refugees in 1924, and of Turkish refugees in 1928. In 1915, protection measures were inadequate, and over 1 million Armenians died as a result of the Armenian Genocide.
Following the Armenian Genocide, World War II reaffirmed the insufficiency of international protection and a global recognition ensued for the adoption of international standards to protect individuals from persecution by their own governments. An estimated six million European Jews lost their lives in the Holocaust—nearly two-thirds of Europe’s entire Jewish population. The Holocaust has been viewed as an event that went “beyond the frontiers of human cruelty and savagery,” and international bodies recognized that codification of individual rights beyond those already provided was required (Yonover, 1996, pp. 227-28).
In 1939, following visa petitions made to the United States, nearly one hundred thousand Jews fleeing Hitler’s Third Reich fled Europe on the St. Louis Transatlantic Liner. At the time, an international definition of the term “refugee” had not yet been developed, and the United States did not have a legitimate system for evaluating refugee claims. The St. Louis refugees arrived in Cuba where Cuban authorities denied entry to most passengers and cancelled the refugees’ transit visas. By 1939, an estimated 27,370 Jewish refugees had arrived in the United States, which capped the annual quota. Ultimately, the United States refused to admit over 900 Jewish refugees who had sailed on the St. Louis. Due to the inchoate refugee system in the United States, or rather, the non-existence of a legitimate refugee system, the ship was forced to return to Europe. As a result, 532 of those Jewish passengers were trapped in Western Europe when Hitler invaded and almost half perished in the Holocaust. This was not an isolated occurrence; Jewish refugees on the ships Orduña, Flandre, and Orinoco encountered similar situations.
Refugee arrivals in Latin America increased as the search for refuge intensified, both leading up to and throughout the period of Nazi Germany. About 84,000 Jewish refugees fled to Latin America between 1933 and 1945. After the war, the search for refuge did not cease. Latin America continued to be a primary destination for Holocaust survivors who were able to obtain shelter there as displaced persons. More than 20,000 Jewish displaced persons emigrated to Latin America between 1947 and 1953. Argentina was a primary destination for nearly 4,800 Holocaust survivors, while others settled in Brazil, Paraguay, Uruguay, Panama, and Costa Rica. In addition, nearly 140,000 Holocaust survivors entered Israel after the war, and the United States, although reluctant, admitted 400,000 displaced persons between 1945 and 1952—approximately 96,000 of whom were Holocaust survivors. Other parts of the world also offered aid to Jewish refugees. Tens of thousands of German, Austrian, and Polish Jews emigrated to Shanghai, China, where visas were not required. Shanghai’s International Settlements quarter admitted nearly 17,000 Jewish refugees.
The aftermath of World War II undoubtedly left countries across the world with a refugee crisis. Hundreds of thousands of Jewish refugees were displaced all around the world and international chaos continued for years.
The 1951 Convention Relating to the Status of Refugees
Genocide and the Development of an International Definition of Refugee
The world recognized in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide that “at all periods of history, genocide has inflicted great losses in humanity; and . . . in order to liberate mankind from such an odious scourge, international co-operation is required” (UN General Assembly, 1948, p. 1). Previously, in December 1946, the United Nations General Assembly declared in its Resolution 96 that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations (UN) and condemned by the civilized world” (UN General Assembly, 1948, p. 1). In 1948, the United Nations General Assembly proclaimed the Universal Declaration of Human Rights (UDHR), establishing that persecuted persons would have the right to seek asylum. The international consensus to prevent further atrocities led to the formation of the Convention Relating to the Status of Refugees—commonly referred to as the 1951 Convention.
The 1951 Convention became the controlling international convention on refugee law and established “foundations of refugee protection by setting baseline principles on which the international protection of refugees was to be built” (as cited in Drake & Gibson, 2017, p. 99). The 1951 Convention established the definition of a refugee and specified the rights afforded to those granted refugee status. Under Article 1 (A)(2) of the 1951 Convention, a refugee is defined as an individual who is unable or unwilling to return to their country of origin due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion” (as cited by Drake & Gibson, 2017, p. 7). This definition is commonly relied upon and the definition that is used in current U.S. refugee law is almost verbatim from the 1951 Convention. Under the 1951 Convention, the core principles afforded to those granted refugee status include:
Refugees should not be returned to face persecution or the threat of persecution—the principle of nonrefoulement; Protection must be extended to all refugees without discrimination; The problem of refugees is social and humanitarian in nature, and therefore should not become a cause of tension between states; Persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner, and accordingly should not be penalized for having entered into, or for being illegally in, the country where they seek asylum. (Drake & Gibson, 2017, p. 99)
The 1951 Convention, however, fails to define how States are to determine whether an applicant is a refugee because asylum proceedings and refugee status determinations are to be left to individual States.
Prohibition Against Refoulement
International law scholar James Hathaway states, “the most urgent need of refugees is to secure entry into a territory in which they are sheltered from the risk of being persecuted” (as cited in Drake & Gibson, 2017, p. 97). Article 33 of the 1951 Convention establishes this principle of non-refoulement, which is the foundation and core of international refugee law. Non-refoulement is the obligation of States not to refoule—or return—a “refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion” (as cited in UNHCR, 1990, p. 233). Non-refoulement applies to those who have acquired status as a refugee under Article 1 A(2) of the 1951 Convention, and also to those who have not yet acquired official status; asylees are thus protected under the principle of non-refoulement.
Following World War II, the principle of non-refoulement became one of the first internationally recognized human rights. Non-refoulement is stated in human rights treaties such as in Article 22(8) of the American Convention on Human Rights, Article 3 of the Convention against Torture (CAT), and Article 7 of the 1966 International Covenant on Civil and Political Rights (ICCPR). There were 169 States as signatories of the 1951 Convention, the CAT, and the ICCPR, which represents the “overwhelming majority of the international community . . . [that is] bound by some or other treaty commitment prohibiting refoulement” (International Justice Resource Center, 2018).
A State’s non-refoulement obligation precludes both non-admittance at its frontiers and non-return of those already within its borders. Thus, the question of whether a State is in violation of its non-refoulement obligation depends on whether the “State action presents any chance that a denial of protection will result in the return of the individual to persecution, not whether the individual in question is in the State’s territory, in transit to the State’s territory, or yet determined to meet the Refugee definition through an adjudicatory process” (Drake & Gibson, 2017, p. 101).
Pursuant to Article 33(2) of the 1951 Convention, two restrictions exist to the principle of non-refoulement. The benefits of this principle are not afforded to refugees for “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that danger” (Art. 33(2), 1951, p. 30). This determination is to be made by the country of asylum that an individual seeks to be admitted into, and the removal of a refugee in application of these exceptions is lawful only if it is both necessary and proportionate.
Prohibition Against Refoulement as an International Customary Law Principle
The principle of non-refoulement is also customary international law, meaning that it is binding on all States, including those that have not yet officially become signatories to the 1951 Convention and/or its 1967 Protocol. Pursuant to a State’s obligations under customary international law, the sending State has a duty to ensure—before taking removal measures—that the territory to which an individual will be returned will not expose them to dangers of serious human rights violations.
In 1946, the UN General Assembly established the International Refugee Organization, which formed as a result of continued and rising concern over refugees (Lauterpacht & Bethlehem, 2003). In 1950, the UN General Assembly formed a High Commissioner’s Office for Refugees and adopted the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR). Pursuant to Article 22 of the UN’s Charter, the UNHCR became a subsidiary organ of the United Nations General Assembly and functions by providing international protection to refugees. The UNHCR is accorded a “special status as the guardian” of the 1951 Convention and of the 1967 Protocol, and it is not limited in the “exercise of its protective functions to the application” of treaties (Lauterpacht & Bethlehem, 2003, p. 96). Thus, the UNHCR may rely on any applicable principle of international law. For example, the UNHCR—with reliance on non-refoulement as expressed in the 1951 Convention and the 1967 Protocol—may ensure the protection of refugees by reference to non-refoulement as a principle of customary international law.
Non-refoulement is also a jus cogens (compelling) obligation according to some scholars; the UN Special Rapporteur on Torture maintains that it “is an inherent part of the overall absolute and imperative nature of the prohibition of torture and other forms of ill-treatment and is non-derogable” (Button, 2007, p. 548). Knowingly returning “individuals to a state sponsor of torture . . . constitutes collaboration in commission of torture, leading to responsibility for breaches of the jus cogens prohibition on torture” (Button, 2007, p. 548). Regarding asylum, the Executive Committee of the program of the UN High Commissioner for Refugees has determined that “non-refoulement is not subject to derogation” (Button, 2007, p. 548), that is, providing exemptions or relaxing the prohibition. In Tapia Paez v. Sweden, the CAT also implied that State practice and opinio juris support a jus cogen characterization in the asylum context of non-refoulement. Opinio juris refers to the actual practice or custom of States, and it must amount to a settled practice and be carried out in a way as to be evidence of a belief that this practice is obligatory despite the lack of a rule of law requiring it. Under treaty law, the prohibition on refoulement is codified in Article 3 of the CAT. The United States signed the CAT on April 18, 1988 and has since implemented Article 3—the principle of non-refoulement. The CAT Committee decision also implied that the principle of non-refoulement is absolute:
Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State Party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention. (Button, 2007, p. 548)
Arar v. Ashcroft: A Violation of the Principle of Non-Refoulement
In Arar v. Ashcroft, plaintiff Maher Arar claimed damages under the Torture Victims Prevention Act (TVPA) for violations of his international human rights (Ryan, 2009). Arar alleged that defendants—United States government officials—rendered him to Syria knowing he would be interrogated and tortured by Syrian officials.
Arar, a dual citizen of Syria and Canada, was detained by authorities at John F. Kennedy Airport in New York on September 26, 2002. Arar was told by U.S. authorities that he was inadmissible because the government had declared him a member of al Qaeda. The Director of the Regional Office of the Immigration and Naturalization Service—J. Scott Blackman—authorized Arar’s removal from the United States without further process. Arar designated Canada as the country to be rendered to, but rather than Canada, U.S. officials sent him to Jordan, where Arar was then handed off to Syrian officials.
While in Syria, Arar alleged he was held for approximately twelve months in an underground cell that was six feet long and three feet wide, and was physically and psychologically tortured by regular beatings and constant threats of severe physical harm. U.S. officials also allegedly provided Syrian authorities with “information about him, suggested subjects for interrogation, and received ‘all information coerced from [Arar] during interrogations’” (Ryan, 2009, p. 741). Arar alleged that the defendants acted “in concert with Jordanian and Syrian officials, and under color of Syrian law, to conspire and/or aid and abet in violating his right to be free from torture” under the TVPA (Ryan, 2009, p. 741).
Under customary international law, the principle of non-refoulement is absolute and is a “corollary to the jus cogen prohibition on torture,” which is why some scholars hold the position that the “customary prohibition on refoulement, like torture, is a jus cogens norm of international law” (Ryan, 2009, pp. 743-44). Although Arar did not claim that his right of non-refoulement had been violated under the ATS, the Second Circuit stated that he “should have held that his rendition to Syria with the knowledge or intent that Syrian officials [would] interrogate him under torture, state[d] a prima facie claim of refoulement” (Ryan, 2009, p. 748). The court stressed that the lower court should have “conducted an inquiry into the status of refoulement under international law and found that the C.A.T., state practice, opinio juris, domestic and international judicial decisions, establish the prohibition on refoulement as a rule of customary international law, if not a jus cogen norm” (Ryan, 2009, p. 748).
International and National Standards of Protecting Refugees and Claiming Asylum
Accession to the 1951 Convention and the 1967 Protocol
When governments are unable or unwilling to protect the rights of its citizens, those individuals are forced to leave their countries to seek safety and protection. When this occurs, another country must intervene, which is known as international protection. Although the 1951 Convention and its 1967 Protocol are the leading texts of the international legal framework regarding refugees, the adjudication of asylum claims is reserved to individual States because international bodies lack the jurisdiction to adjudicate these claims (International Justice Resource Center, 2018). Thus, most States have acceded to both the 1951 Convention and the 1967 Protocol by reaffirming that both treaties are central to not only international refugee protection, but also to individual national systems of refugee law. States around the world have developed regional laws and standards that closely complement the international refugee protection regime of both the Convention and the Protocol. At the New York Declaration for Refugees and Migrants Resolution 71/1 of 2016, the United Nations General Assembly declared:
We reaffirm the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto as the foundation of the international refugee protection regime. We recognize the importance of their full and effective application by States parties and the values they embody
. . . We reaffirm respect for the institution of asylum and the right to seek asylum. We reaffirm also respect for and adherence to the fundamental principle of non-refoulement in accordance with international refugee law. (Nicholson & Kumin, 2017, p. 17)
Establishing a national asylum system helps a State manage the arrival of those in need of international protection, which in turn affords asylees and refugees the rights they are entitled to under international law. The most appropriate and common approach States take is to accede to the 1951 Convention and/or the 1967 Protocol, and “then to enact relevant national legislation and build the necessary institutions” (Nicholson & Kumin, 2017, p. 55). Sometimes it is more beneficial for a State to first establish national legislation—by “accompanying institutions for the protection of refugees, grounded in the principle of non-refoulement and other obligations of international human rights law”—with accession to the 1951 Convention and/or the 1967 Protocol coming last (Nicholson & Kumin, 2017, p. 55).
Although the Convention and the Protocol are the leading global instruments addressing refugee protection, a governing and binding set of international standards does not yet exist; international and regional bodies do, however, adjudicate claims asserting violations of the human rights of refugees and asylees. Thus, it is imperative to stress that “international refugee law does not operate in isolation. It is best understood in conjunction with international human rights law” (International Justice Resource Center, 2018).
Asylum in the United States
United States asylum law is governed by the Refugee Act of 1980, which “was intended to bring domestic law into conformity with the 1951 Convention and the 1967 Protocol” (Drake & Gibson, 2017, p. 97). The Refugee Act codified the definition of a refugee from the 1967 Protocol; pursuant to 8 U.S.C. § 1158, a refugee is:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum. (pp. 102-03)
In the United States, the U.S. Citizenship and Immigration Services (USCIS) is the governing agency under the U.S. Department of Homeland Security that administers the country’s naturalization and immigration systems, including the adjudication process for refugees. Before discussing U.S. asylum law, it is important to distinguish the U.S. classifications of a “refugee” and an “asylee.” A refugee is someone who has left his/her country and is unable or unwilling to return because of a serious threat to his or her life or freedom. Whereas an asylee is a “general designation for someone who is seeking international protection . . . it is a legal term referring to a person who has applied for refugee status [but] has not yet received a final decision on his or her claim. Not every asylum-seeker will ultimately be recognized as a refugee” (Nicholson & Kumin, 2017). Under U.S. law, the Immigration and Nationality Act of 1965 (INA) defines a refugee as:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (§ 101 (a)(42), 8 U.S.C. §1101)
A restriction that will render an applicant ineligible to acquire refugee status under U.S. law is anyone who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion” (U.S. Citizenship & Immigration Services, 2020). There are two primary ways—the affirmative process and the defensive process—by which a person may apply for asylum in the U.S., both of which require the asylum seeker to be physically present in the U.S. The affirmative process applies to individuals who are not in removal proceedings, while the defensive process applies to those who are in removal proceedings because they have illegally entered the U.S. without inspection, and are therefore applying for asylum as a defense against removal from the country. Asylees who arrive at a U.S. port of entry or enter the United States without inspection must generally apply via the defensive asylum process. The asylum process in the United States takes years to conclude, which has led to a backlog in U.S. immigration courts, with more than 690,000 open deportation cases in March 2018, an all-time high according to the American Immigration Council. On average, these cases have been pending for an average of 718 days and tend to remain unresolved.
The Trump Administration: A Nationalistic, Anti-Immigrant Regime
Refugee warehousing is common in countries that host large refugee populations. Interestingly, these countries are also usually limited in national resources and lack sufficient legal frameworks for protecting refugees. Refugee warehousing “is the practice of keeping refugees in protracted situations of restricted mobility, enforced idleness, and dependency—their lives on indefinite hold—in violation of their basic rights under the 1951 UN Refugee Convention” (Smith, 2004, p. 38). The key feature of warehousing is the denial of fundamental human rights. Violations of human rights is so widespread in refugee camps because it is common for camp administrators to “operate outside the host country judicial system with no checks on powers or legal remedies against abuses and violate refugees’ rights” (Smith, 2004, p. 39).
Trump Immigration Policy
Following the executive order that widely became known as Trump’s 2017 “Muslim ban” were serious policy changes to refugee admissions. Trump has since used the pretext of “national security” to expand these refugee admission policies. The State Department’s annual ceiling for refugees has since plummeted at an alarming rate, decreasing from 110,000 in fiscal year 2016, to 45,000 in 2018, to 30,000 in 2019, and now to a cap of 18,000, a historic low (Chen, 2019). Rather than offering aid to those facing persecution, the Trump administration has chosen to use refugee policy as diplomatic leverage against countries that historically have suffered from U.S. military interventions. This was the case after the Vietnam War, and in the aftermath of what has become known as the war against terror in Iraq, where, under “Trump’s current cap, the administration says 4,000 slots will be reserved for Iraqi refugees who aided, or are otherwise connected to, US personnel” (Chen, 2019). To “dismantle a decades-old [asylum] system for safeguarding the most vulnerable communities, basically tells the world we’re repudiating that history. And that could be very dangerous for many people around the world,” said Melanie Nezer, the senior vice president of public affairs with the humanitarian organization HIAS (Chen, 2019).
El Paso, Texas: A Bordertown as the Home of a Refugee Crisis
The Trump administration has gone further than just framing its immigration policies for the benefit of diplomatic leverage; it has heavily enforced policies that violate human rights protected under international principles. As a second generation Mexican American born and raised in El Paso, Texas—located on the U.S./Mexico border—I have seen this play out in my very own backyard. El Paso recently made both national and international headlines as a refugee destination where human rights violations are being committed. Migrants seeking asylum are held under the international bridges of the city, sleeping on dirt and behind barbed wire. Places such as Annunciation House, a charity shelter, and Las Americas Immigrant Advocacy Center—both located in El Paso—continuously offer basic necessities for these migrants and have enthusiastically offered free legal services. This humanitarian crisis is the result of Trump’s policy called the Migrant Protection Protocol, which was implemented in El Paso, and is also commonly referred to as “Remain in Mexico.” The policy does just that; it forces migrants to wait in Mexico while their asylum proceedings are initiated. These migrants are forced to wait, without any assurance, without international protection, and without fundamental human rights. They are forced to wait in cities like Ciudad Juárez, which year after year, is ranked as one of the most dangerous cities in the world. Mexico is not able to offer its own citizens or these migrants protection from its own drug wars, which are in most cases, the same circumstances that led these migrants to flee from their home countries in the first place.
As a country under the influence of organized crime, Mexico is not equipped to shelter these migrants, forcing it to release them into the streets, without guidance, protection, or basic necessities. These migrants have thus fallen victim to kidnappings, robberies, assaults, and murders. San Diego’s NBC 7 reported on December 11 of 2019 that after an El Salvadorian asylum seeker went through the legal process in September 2019, he was violently killed, his throat slashed and stabbed in the stomach, in Tijuana while awaiting his next court date. Under customary international law and as a signatory of the Protocol, the United States has an obligation to ensure that the territory where an asylee will be returned to will not expose the asylee to dangers of serious human rights violations; clearly, the United States is in violation of its international obligation of non-refoulement.
Child separation at the border is also at the forefront of Trump’s immigration policies, and although it is no longer frequently headlined, it continues. Considering the government’s inadequate tracking system, the American Civil Liberties Union reported that since July 2017, more than 5,400 children have been separated from their parents by U.S. immigration authorities at the Mexico border, including babies and toddlers. The government’s tracking system rapidly worsened as the Trump administration enforced its “zero tolerance” policy in 2018. More recently, the administration has initiated a policy to deny asylees who have not first sought asylum in Mexico, a country known for its organized drug cartels.
Federal law requires that any federal agency with an “unaccompanied alien child” in custody transfer the child to the Department of Health and Human Services “not later than 72 hours after determining that such child is an unaccompanied alien child” (8 U.S.C. § 1232(b)(3)). However, it is no secret that under the orders and policies of the Trump administration, U.S. immigration authorities have abused their discretion and are committing atrocious acts. Clara Long, who testified before the U.S. House Committee on Oversight and Reform regarding the inhumane treatment at the border, interviewed many children being held in inhumane, refugee warehousing conditions. A 14-year-old girl shared:
I was in the first cell for seven days, sleeping with no mattress. It is hard to sleep when you don’t have a mattress. I then came down with the flu. I then went into the flu cell for seven days. When you are in the flu cell, you also sleep on the floor, but you have a mattress. There were 21 other kids in that space with the flu. I had a fever in there and I was shaking. Some of the other kids were vomiting. They all had fevers. No one was taking care of the kids with the flu . . . We were not allowed to leave the flu cell, ever. It was very boring. I did nothing to entertain myself, nor was anything offered. It was sad, very sad. I felt locked up and closed in (Long, 2019).
The 1951 Convention Relating to the Status of Refugees is the international legal framework that established the foundations of refugee protection by setting baseline principles on which the international protection of refugees was to be built. Its development arose after widespread human rights violations struck the world, and it continues to be the legal framework of modern refugee law. While human rights violations are unfolding at our borders before our very own eyes, it is my recommendation that the integrity of these laws and international human rights standards in current U.S. immigration law be immediately restored if the U.S. is to remain a nation that leads the world in human rights. Minimizing human suffering and enforcing the spirit of humanitarian protection and international law for those fleeing from persecution should be at the forefront of this nation.
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