Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for those Seeking to Access Surrogate International Human Rights Protection
Authors: von Sternberg Mark R. 
Published: August 2018

Both geographic and normative constraints restrict access to surrogate international human rights protection for those seeking a haven from serious human rights abuses. Primary among territorial restrictions has been the fall-out from the US Supreme Court's decision in Sale v. Haitian Council Centers in which the court explicitly ruled that nothing in US statutory law, or in the 1951 Convention on Refugees or its 1967 Protocol, precluded the interdiction of Haitian refugees in international waters and their return to the country of origin without an effective interview on their protection clams. This ruling is in transparent contradiction to the general international law norm of non-refoulement according to modern scholarship and emerging case law. This paper concludes that Sale should be overturned by statute as should related pre-screening practices. A new standard of “jurisdiction” should be adopted which does not depend on territorial access to a signatory state but on whether the state is exercising power in fact. Similar concerns exist with respect to safe third country agreements which often offend the international customary right of the asylum seeker to choose where his or her claim will be filed. This paper argues that the right of choice should be recognized and onward travel and admission to the country of destination allowed. This result is especially called for where return of the alien by the country of first contact raises serious concerns under the law of non-refoulement. Imbalances noted in this paper include those generated by the new terrorism related grounds of inadmissibility in the United States and the summary denial of children's asylum claims flowing from gang violence. Other questions are raised in this paper concerning work authorization and detention of asylum seekers. Access to an employment authorization document for those filing colorable claims should be recognized by statute to render US practice consistent with that of most other states. Release from detention, on the other hand, for asylum seekers has now been broadly recognized by the US Department of Homeland Security where the asylum seeker's identity can be ascertained and the claim is non-frivolous in nature. This approach is largely consistent with international law, although there have been unnecessary delays in implementing it. On the substantive law, the international customary norm of non-refoulment has been expanded considerably through the development of opinio juris by scholars and the practice of states. This paper traces efforts in Europe to develop a law of temporary refuge for those fleeing civil war situations characterized by humanitarian law violations. Similarly, case law under the European Convention of Human Rights has now come to focus on the harm the claimant would suffer as the result of conditions in the country of origin without identifying an explicit agent of serious harm. Related to these developments has been the notion of complementary protection under which relief can be conferred where the alien would suffer serious harm upon return to the home state but not for a Convention reason. These approaches have now received approval in the European Union Asylum Qualification Directive so that international protection may now be conferred either because the alien would suffer serious harm on account of the intensity of human rights violations taking place in the country of origin, or those conditions, taken in conjunction with the claimant's personal situation, support a finding that the claimant would be impacted. This paper argues that this latter standard has now been made a part of the customary norm of non-refoulement and that it should be recognized by statute as a basis for non-return and coupled with status where the new standard can be met. Such a measure would help restore the nation's commitment to human rights and humanitarian concerns.