Refugees, refoulement, and freedom of movement: asylum seekers' right to admission and territorial asylum

• Author: Timothy E. Lynch
• Position: Associate Professor of Law, University of Missouri-Kansas City School of Law
• Pages: 73-139

REFUGEES, REFOULEMENT, AND FREEDOM OF

MOVEMENT: ASYLUM SEEKERS’ RIGHT TO

ADMISSION AND TERRITORIAL ASYLUM

TIMOTHY E. LYNCH*

ABSTRACT

Despite the assertions by many, including eminent refugee scholars,

UNHCR, and other refugee advocates, and except within the contexts of the

regional regimes of Africa and Latin America, international law, including

the 1951 Refugee Convention (and its 1967 Protocol) and the customary

international law of non-refoulement, does not obligate States to admit into

their territories asylum seekers or refugees, including those who appear at

their frontiers seeking territorial asylum. This Article establishes this claim,

considers this absence as a normative incoherency within international refu-

gee law, and then concludes by urging States to consent to an obligation to

admit asylum seekers who appear at their frontiers and provide them territo-

rial asylum, at least on a temporary basis.

TABLE OF CONTENTS

INTRODUCTION ......................................... 74

I. REFUGEE STATUS ................................... 78

A. The 1951 Refugee Convention and the 1967 Refugee

Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

B. Regional Refugee Instruments. . . . . . . . . . . . . . . . . . . . . 82

C. “Refugee” under Customary International Law . . . . . . . . 84

D. Other Categories of “Refugees”. . . . . . . . . . . . . . . . . . . 84

* Associate Professor of Law, University of Missouri-Kansas City School of Law; M.B.A., Kelley

School of Business, Indiana University; J.D., Harvard Law School; B.A., University of Chicago. Please

send correspondence to the author at lynchte@umkc.edu. This Article can be found at https://perma.cc/

4RE5-MSF6. © 2021, Timothy E. Lynch.

73

II. RIGHTS REGARDING ASYLUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

A. Right to Seek Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

B. The Right to Enjoy Asylum. . . . . . . . . . . . . . . . . . . . . . . . 88

C. The Ostensible Right to Receive Asylum . . . . . . . . . . . . . . 89

1. The Non-Existence of a Right to Receive Asylum. . . . 89

2. Two Regional Exceptions: Africa and Latin America . 93

3. Reasons for the Incoherency . . . . . . . . . . . . . . . . . . . 94

III. NON-REFOULEMENT ................................. 96

A. 1951 Refugee Convention and 1967 Protocol . . . . . . . . . . 97

1. The Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

2. The Negotiation History. . . . . . . . . . . . . . . . . . . . . . 98

3. Judicial Interpretations . . . . . . . . . . . . . . . . . . . . . . . 102

4. Contrary Scholarly Interpretations............... 104

B. The African Refugee Convention . . . . . . . . . . . . . . . . . . . 107

C. Other Human Rights Conventions . . . . . . . . . . . . . . . . . . 107

1. Convention against Torture. . . . . . . . . . . . . . . . . . . . 108

2. International Covenant on Civil and Political Rights . . 109

3. European Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . 111

4. Other Human Rights Treaties . . . . . . . . . . . . . . . . . . 112

D. Extradition and Anti-Terrorism Treaties . . . . . . . . . . . . . . 114

E. Customary International Law. . . . . . . . . . . . . . . . . . . . . 115

1. Assertions that Non-Refoulement Is Customary

International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

2. The Scope of the Customary Law of Non-Refoulement

and Non-Rejection at the Border . . . . . . . . . . . . . . . . 117

IV. ASYLUM SEEKERS’ RIGHT TO ADMISSION AND TERRITORIAL ASYLUM . 130

A. The Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

B. Limitations and Qualifications. . . . . . . . . . . . . . . . . . . . . 132

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

INTRODUCTION

In 1939, the ocean liner MS St. Louis sailed from Germany with over 900

Jewish passengers. They were fleeing Nazi persecution. The ship sailed for

Cuba, where the passengers expected to find refuge. However, Cuba admitted

only twenty-eight passengers and refused to admit the rest. The ship then set

74 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:73

sail for Florida in the hopes of finding refuge in the United States. The ship

came within sight of Miami’s palm trees, and several of Miami’s citizens

boated out to the St. Louis and delivered fresh food. But the U.S. government

refused to allow the ship to dock and categorically refused to accept any pas-

sengers. In fact, in order to ensure the captain of the ship would not purpose-

fully run aground on U.S. territory, the St. Louis was escorted out of U.S.

territorial waters by Coast Guard vessels. Canada immediately thereafter

made it clear that it, too, would refuse to admit any of the refugees. With con-

ditions on the ship deteriorating and seemingly nowhere else to go, the ship

returned to Europe.

1

Approximately thirty percent of those passengers were

later murdered in the Holocaust.

2

In 2012, the U.S. Department of State formally acknowledged that the

United States was “wrong” to reject the refugees,

3

and in 2018, Canadian

Prime Minister Justin Trudeau formally apologized to the survivors.

4

But the

memory of those who suffered and died in the Holocaust is a painful re-

minder of what a lack of generosity toward people suffering foreign persecu-

tion can mean. “We were not wanted,” a St. Louis survivor told a Miami

Herald reporter in 1989. “[We were] abandoned by the world.”

5

Eighty years ago, in 1939, no provision of international law required any

State to admit these refugees or to provide them protection from persecution,

even the kind of persecution inflicted by the Nazis. In 2021, aside from a cou-

ple of regional exceptions, there is still no such law.

The international community has often declared its intention to never

repeat such shameful decisions as the refusal to admit the passengers of the

St. Louis. In the immediate aftermath of World War II, there was a great deal

of enthusiasm to create an international legal governance system that would

better promote international peace and security and protect human rights,

including providing greater international protections for people fleeing perse-

cution in their home countries.

A close examination of international refugee law and asylum law, how-

ever, shows that only African and Latin American states have committed

themselves to an international obligation to admit and protect people perse-

cuted abroad. And even those States have only committed themselves to

admit a limited class of people: those who appear at their frontiers and

request asylum. African states have made such a commitment pursuant to the

Organisation for African Unity’s Convention Governing the Specific Aspects

1. Sara J. Bloomfield, Museum Director’s Foreword to SARAH A. OGILVIE & SCOTT MILLER,

REFUGE DENIED: THE St. Louis PASSENGERS AND THE HOLOCAUST at x (2006).

2. Id.

3. William J. Burns, Deputy Secretary, U.S. Dep’t of State, Remarks on the Legacy of the M.S. Saint

Louis (Sept. 24, 2012), https://perma.cc/8Z7M-HSLL.

4. Justin Trudeau, Statement of Apology on Behalf of the Government of Canada to the Passengers

of the M.S. St. Louis (Nov. 7, 2018), https://perma.cc/QAY7-VEEJ.

5. Dan Froomkin, Talking to Survivors of the SS Louis, MEDIUM (Jan. 27, 2017), https://perma.cc/

7HE9-JU37.

2021] REFUGEES, REFOULEMENT, AND FREEDOM OF MOVEMENT 75