Explainer on the Legal Obligation Not to Return Refugees and How Trump’s Exec Order Breaks It

 

President Trump’s Executive Order, commonly referred to as the “Muslim Ban,” has generated significant discussion of its discriminatory and Islamophobic nature, but not enough about the plight of refugees. Too little attention has been paid to the way this executive action violates long-standing, core U.S. obligations to protect refugees and to ensure no one is sent to a country where she faces a real risk of torture or persecution. This is not only a matter of international law, of course, as the United States has incorporated its obligations directly into domestic law. So then, what are those obligations—including both substantive prohibitions and procedural protections—and how does Trump’s Order violate them?

The United Nations estimates that the ban will impact  20,000 refugees. While the government has not indicated how many individuals have been detained or returned, reports indicate that at least 735 individuals had “encounters” with Customs and Border Protection (CBP) at ports of entry during the first few days of the ban, between 200 and 250 of whom were denied entry. Without accurate and transparent reporting from the U.S. government, it is impossible to know how many individuals have been detained, returned, or turned away at airports, to say nothing of those who have simply abandoned plans to travel in the face of the ban. Such direct impacts have reportedly included otherwise valid visas cancelled upon arrival, detention and interrogation, coercion of individuals to “voluntarily” surrender their U.S. legal status, removal, and detention of up to 30 hours. The unreported consequences, which by their nature occur far from reporters and human rights lawyers, likely entail the return of individuals to places where they may be tortured or subject to persecution.

Civil and immigrant rights groups have been quick to respond, and U.S. courts in different regions of the country have issued temporary orders to stay the implementation of various portions of the Executive Order. Most recently, on Friday, a federal judge in Massachusetts denied a request to extend a temporary stay of the Executive Order on the grounds that the Order had a “rational basis,” while within a few hours later a federal judge in Washington issued a nationwide temporary restraining order blocking the Executive Order.  The ultimate fate of the Order remains in question, but myriad statutory and constitutional challenges will be determined by federal courts in the coming days and weeks.

International opprobrium has been directed at the Executive Order in recent days. It is important to notice how much of that response specifically concerns refugees and the obligation of non-refoulement. What does that mean? Specifically, non-refoulement is a norm found in international refugee, human rights, and humanitarian law, which requires that states must never send any individual to a country where she faces a real risk of torture or ill-treatment, persecution, enforced disappearance, or arbitrary deprivation of life. Five days after Mr. Trump signed the ban, a group of UN experts denounced the measure, calling particular attention to the plight of “people being returned, without proper individual assessments and asylum procedures, to places in which they risk being subjected to torture and other cruel, inhuman or degrading treatment, in direct contravention of international humanitarian and human rights laws which uphold the principle of non-refoulement.”  The Inter-American Commission on Human Rights, which monitors rights protections in the Western hemisphere, decried the Order’s abrogation of “the right to seek and receive asylum, the principle of non-refoulement, the prohibition on rejection at the border, and the prohibition on the collective expulsion of aliens.” This is not a matter only for independent UN and regional human rights bodies, but also states who are parties to the international treaties. It is no wonder that German Chancellor Angela Merkel specifically raised concerns about US obligations under refugee law in her phone call with President Trump.

Non-refoulement Obligations under International Law
The non-refoulement obligation is evidenced in customary international law and is contained explicitly or implicitly in a range of treaties that are binding on the United States, including the Convention on the Status of Refugees and its Protocol (although the United States has not ratified the Convention, its substantive rules are binding on the United States through its ratification of the Protocol), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

No Transfers to Risk of Torture: The ICCPR and Torture Convention
The rules against torture and refoulement are norms of the highest and most binding nature, and the prohibition on ill-treatment is non-derogable, meaning it cannot be limited under any circumstances, even in times of emergency. There is a substantive prohibition and a procedural one. First, the UN Convention Against Torture (explicitly, in Article 3) and the International Convention on Cultural and Political Rights (implicitly, through Article 7) require that states refrain from transferring individuals under their effective control (including on their territory or extraterritorially) to the custody of another state if the transfer would put the individual at a real risk of torture or cruel, inhuman or degrading treatment or punishment. Second, these norms include procedural guarantees such as the opportunity to state a fear of refoulement, and the right to challenge a proposed transfer in advance before an independent decision-maker.  Indeed, these protections against transfer to a real risk of torture or cruel treatment are understood to be so essential to the norm against such treatment that they are not considered to be separate rules at all.

No Transfers to Risk of Persecution: the UN Refugee Protocol
The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) also includes a substantive non-refoulement protection and related procedural rights that bind the United States under the Protocol. First, the Convention prohibits states from transferring individuals to countries where they face a serious risk of persecution.  Article 33(1) of the Refugee Convention forbids states’ transferring an individual to a country where his or her “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Second, determination of refugee status requires an individualized analysis with both an objective and subjective component, and entails due process guarantees to ensure that analysis can take place.  Article 33(2) of the Refugee Convention excludes from the protection of Article 33(1) individuals about “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 country.” These exclusion clauses must be construed narrowly, and as James Hathaway explains in his Just Security essay, such determinations must, must, must be made on an individualized basis—which the Executive Order does not. Even when this exclusion is applicable, individuals retain the protection against refoulement to other risks, including the risk of torture and cruel treatment under international human rights law, which contains no exceptions.

U.S. Implementation of its Non-Refoulement Obligations
The United States has long recognized its legal obligations under norms related to the prohibition on torture and the obligation of non-refoulement, and it has implemented these protections through statutes, regulations, and policies regarding protection for those who qualify for asylum or refugee status, as well as those who may not qualify as refugees but may not be returned to a place where they would be at risk of torture. While the United States has long contended that the non-refoulement norm does not apply extraterritorially as a matter of law, it does apply the rule as a matter of policy to some extraterritorial transfers (e.g., from Guantanamo). The official government position has been, for example, that “as a matter of policy, the United States applies the [Torture Convention] Article 3 standard to all transfers regardless of location.” Moreover, UN human rights bodies and experts, the Inter-American Commission on Human Rights, and the European Court of Human Rights have all made clear that the non-refoulement norm does apply extraterritorially.

Risks of Non-refoulement resulting from the Executive Order
As written, the Executive Order violates the United States’ international non-refoulement obligations. Anyone who is within U.S. custody or on U.S. territory (i.e. anyone detained at a U.S. airport) is plainly protected by the procedural rules related to non-refoulement. Every individual arriving in the United States must be given a fair opportunity to make a claim that she is at risk of torture or persecution. Reports suggest that Customs and Border Protection is not advising individuals of their right to claim asylum, much less conducting credible fear interviews. If this is the case, the United States is in breach of its non-refoulement obligations when it expels such individuals. Those entering the United States who have been granted refugee status have already made out refoulement claims in the course of their application for visas. Returning such people is a violation of binding human rights law. The risk of these violations is heightened in the current climate, where there are reports of Customs and Border Protection  agents using coercive methods to “persuade” detainees to “voluntarily” forfeit their legal status. Reports that U.S. officials may have purposely slow-walked implementation of court orders would, if true, also run afoul of these legal obligations.

The situation confronting those attempting to board airplanes to come to the United States is more complex. Airlines routinely screen passengers before allowing them to board flights to the United States to ensure they have valid visas or travel documents permitting them to enter.  Reports indicate that following the Executive Order, airlines have turned many away on the basis that their visas are no longer valid. While airline personnel are not U.S. agents, and passengers are not in the custody or on the territory of the United States, these individuals should still be allowed to travel to the United States if their visas are facially valid.  As a group of human rights professors explained in a letter to airlines on February 3, “airlines have a responsibility under the UN Guiding Principles on Business and Human Rights to not contribute to, to prevent, and to mitigate human rights impact related to their business” and should therefore not impede access to the United States to those with facially valid visas. Because the Executive Order has both been stayed by a number of federal courts and is patently of highly questionable legality, pre-screening by airlines is no longer a pro-forma exercise, but could amount to knowing assistance in human rights violations.  The violations relating to non-refoulement are plain: when they fail to conduct credible fear screenings, U.S. agents violate procedural guarantees, and when they turn away refugees who face persecution if returned, they violate the substantive norm. As in the extraordinary rendition context, where suits targeted commercial entities for their knowing assistance to the U.S. government, companies that aid in the implementation of the Executive Order could face serious legal risks for their cooperation. Beyond pure legal liability, airlines should consider the reputational risks of breaching their responsibilities: consumers may prefer airlines that refuse to carry out what they see as an illegitimate action targeting the most vulnerable.

 

[Editor’s Note: Interested in reading more on the Executive Order and international law? Read James Hathaway, “Executive (Dis)order and Refugees—The Trump Policy’s Blindness to International Law,” and Jay Shooster, “Trump’s Immigration Policy Risks Violating International Law—alienates US allies.”]

Image: Digital Vision/Getty 

About the Author(s)

Meg Satterthwaite

Professor of Clinical Law at New York University School of Law, Faculty Director of the Center for Human Rights and Global Justice, Director of the Global Justice Clinic Follow her on Twitter (@SatterthwaiteML).

Alexandra Zetes

Masiyiwa-Bernstein Fellow with the Global Justice Clinic at NYU School of Law Follow her on Twitter (@AlexandraZetes)).