THE AUTHORITY OF INTERNATIONAL REFUGEE LAW.

• Author: Criddle, Evan J.

TABLE OF CONTENTS INTRODUCTION 1070 I. DOES INTERNATIONAL LAW RECOGNIZE NON-REFOULEMENT AS A PEREMPTORY NORM? 1075 A. The Refugee Convention and Refugee Protocol 1076 B. Human Rights Treaties 1079 C. Customary International Law 1082 D. Synthesis 1090 II. THE CASE FOR RECOGNIZING NON-REFOULEMENT AS A PEREMPTORY NORM 1091 A. Skepticism 1091 1. Special Loyalty 1092 2. Self-Determination 1094 3. The Lotus Doctrine 1096 4. Schmittian Sovereignty 1097 B. The Dual Commissions Theory 1100 C. The Skeptics Reconsidered 1111 III. LESSONS FROM THE COVID-19 PANDEMIC 1118 A. Land Border Exclusions and Expulsions: The United States 1121 B. Indirect Refoulement; Canada 1127 C. Maritime Interdiction: Cyprus, Italy, Malta, and Malaysia 1129 D. Evaluating Emergency Restrictions on REFUGEE MIGRATION 1132 CONCLUSION 1136 INTRODUCTION

As COVID-19 has spread around the world, many states have wavered in their commitment to respect a core requirement of international refugee law (IRL): the duty of non-refoulement. The duty's classic formulation appears in the 1951 Convention Relating to the Status of Refugees (Refugee Convention), which provides that a state may not "expel or return ('refouler') 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 of a particular social group or political opinion." (1) Even before the pandemic arrived in early 2020, mass migrations from Central America, Myanmar, northern Africa, and Syria were already testing states' political will to abide by the duty of non-refoulement. (2) Fears of COVID-19 have prompted nearly all countries to restrict international transit, drawing refugee migration to a near-dead halt worldwide. (3) As states have closed their borders, refugees have lost access to this protection guaranteed under international law. (4) These developments have exposed the fragility of IRL (5) and have prompted some observers to question whether non-refoulement will survive the pandemic as a nonderogable legal duty. (6)

In this Article, we push back against these trends by explaining why the international community should embrace the duty of non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the Coronavirus pandemic. (7) When viewed from a global justice perspective, the authority that international law entrusts to states--including the sovereign power to regulate migration across their borders--can be understood as legitimate only if states refrain from refoulement. (8) This has become only more evident as states have erected new barriers to refugee migration in response to COVID-19. Far from demonstrating the need for IRL to give states greater flexibility in responding to refugee migration, we argue that the COVID-19 crisis illustrates why the legitimacy of the international legal system as a whole depends on refugees enjoying uninterrupted access to protection from persecution. In a just international legal order, the international community would embrace the duty of non-refoulement as jus cogens. Indeed, we go a step further and make a conceptual claim about the legal character of the international legal system. For the international legal order of multiple territorial states to be a legal order for exiled outsiders, it must treat the duty of non-refoulement as jus cogens. A failure to do so would render the international legal system incapable of claiming to possess legitimate authority vis-a-vis asylum seekers, supplanting the rule of international law in this context with an extralegal use of mere coercive force. The COVID-19 crisis has thus exposed the conditional nature of the international legal order's claim to legality and normative legitimacy vis-a-vis refugees.

Legal scholars have debated whether international law already characterizes the duty of non-refoulement as a peremptory norm of general international law. The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention) prohibits states from returning people to territories where they would face a substantial risk of torture. (9) When a refugee does not face torture, however, the prevailing view is that states may sometimes withhold protection. For example, although the Refugee Convention does not allow states to make blanket derogations from the prohibition of refoulement during emergencies, it does permit states to deny protection on a case-by-case basis when "there are reasonable grounds for regarding [a particular refugee] as a danger to the security of the country." (10) Some regional treaties and declarations from Africa, Latin America, and the Caribbean take a different approach, proclaiming that the duty of non-refoulement is not subject to derogation or limitation under any circumstances. (11) In effect, these regional instruments endorse the duty of non-refoulement as a peremptory norm. Yet, given that states outside these regions continue to rely on the Refugee Convention's limitation clauses, it is debatable whether this characterization of the duty as a peremptory norm is now part of general customary international law. (12)

By accepting the possibility that national security and other important state interests might justify refoulement, the Refugee Convention endorses a distinctive account of the state's role in international legal order. According to this account, states owe a special loyalty to their own people. When granting protection to a particular refugee could undermine national security, the state's responsibility to its people dictates that it may privilege domestic security interests over a refugee's interest in freedom from persecution. (13) Although the Refugee Convention does not contain a general derogation clause, it is not hard to see how the Convention's implicit framing of a state's duty to its people could be extended to justify broader derogations from the duty of non-refoulement. (14) If a state may legitimately favor the interests of its own people over those of "alien" refugees, this opens the door to the possibility that some general derogations, such as border closures during a deadly pandemic, might also represent legitimate expressions of the state's special loyalty to its people. (15)

We argue that this account of the state's role is misguided and that a proper apprehension of the state's role within international legal order supports accepting the duty of non-refoulement as a peremptory norm. To arrive at this conclusion, we develop a fiduciary and dual commissions theory of IRL. Under this theory, international law entrusts states with local fiduciary powers to govern and represent their people and with supranational fiduciary powers to act on behalf of humanity, usually jointly with other states and sometimes globally. Fiduciary states thus have local and transnational or global commissions. Their global commission includes a duty to enact multilaterally a system of surrogate protection for asylum seekers, a cornerstone of which is the duty of non-refoulement. This duty is immanent to, and partially constitutive of, the international legal order vis-a-vis refugees. As we shall see, but for this duty, asylum seekers would suffer incurable domination when confronting receiving states, with the looming possibility that their mere physical presence anywhere in the world might be treated as a trespass. They would do wrong just by existing. In our view, no legal system can treat a subject's mere existence as a wrong and claim to possess legitimate authority over them. (16)

In Part I, we take stock of international law's present understanding of non-refoulement. We suggest that evidence of its peremptory status is mixed, but that there are some encouraging grounds for thinking that non-refoulement is progressively acquiring the status of jus cogens. In Part II, we consider a series of objections to the idea of non-refoulement as a peremptory norm. These include objections based on the special loyalty states owe their people; the right to exclude, said to follow from a political community's freedom of association and right to self-determination; doctrine from international law that accords robust autonomy to states; and Carl Schmitt's theory of sovereignty in which the executive enjoys legally unlimited discretionary power. We then develop the dual commissions theory and answer the objections, explaining why the case for a peremptory duty of non-refoulement remains persuasive. In Part III, we look at closed-border policies that have arisen in response to the COVID-19 pandemic and use these as a test case for our theory. We conclude that pandemic-induced restrictions on non-refoulement are unjustifiable. Receiving states cannot return refugees to persecution without subverting their own legal authority.

1. DOES INTERNATIONAL LAW RECOGNIZE NON-REFOULEMENT AS A PEREMPTORY NORM?

   If the prohibition of refoulement is indeed a peremptory norm of general international law (jus cogens), this would have significant consequences for how states may lawfully respond to perceived national security and other threats, such as the COVID-19 pandemic. Jus cogens norms occupy a distinctive position within the international legal order because they are mandatory, universal, do not admit limitation or derogation, and can be modified or abridged only by international norms of equivalent authority. (17) Treaties that are inconsistent with peremptory norms are void, and national laws and practices that violate peremptory norms are invalid under international law. (18) Recognizing the non-refoulement principle as a peremptory norm would therefore preclude states from returning refugees to persecution under any circumstances, including in response to extradition requests, mass influxes of migrants, or possible health threats associated with a global...