Immigration Article of the Day: The Legal and Moral Responsibility to Protect by Karen Musalo

The Immigration Article of the Day is from immprof Karen Musalo (Hastings): The Legal and Moral Responsibility to Protect, 45 Fordham Int’l L.J. 751 (2022). She writes:

In March of 2020, under the pretext of protecting public health, the Trump administration closed the border to asylum seekers, a policy referred to as “Title 42,” which the Biden administration has continued. Those who arrive at the border fleeing persecution are either returned to Mexico—if they are among the nationalities Mexico has agreed to accept—or they are deported directly to the countries they fled. Leading international law scholars have decried this policy as a clear violation of the United States’ legal obligation, undertaken when it became a party to the 1967 Refugee Protocol, not to “expel or return” individuals fleeing persecution—a view most recently articulated in a decision of the U.S. Court of Appeals for the District of Columbia.

Although the Title 42 border closure is unprecedented, it is by no means the first time that the United States attempted to circumvent its non-refoulement obligations. In fact, it did so within a year of enacting the 1980 Refugee Act in execution of its treaty obligations, when President Ronald Reagan implemented a policy designed to prevent Haitian asylum seekers from ever reaching the United States where they would be able to seek protection.

The United States is not an outlier among wealthy countries in adopting policies which directly or constructively flout the prohibition on refoulement, or otherwise attempt to negate protection obligations. Deploying strategies referred to as the “externalization of migration controls,” these countries have increasingly taken actions which prevent asylum seekers from accessing their territories or render them inadmissible without considering their claims.

The externalization of migration controls is on full display in Australia and countries of the European Union, and is a practice that the United States adopted wholesale during the Trump administration. As noted by one scholar, “States, while giving lip service to the obligations enshrined in the 1951 Convention, have . . . sought to limit the possibility of individuals to benefit from the rights to which they agreed some 50 years ago.” Policies designed to deny protection have become so commonplace that for many observers, they are not seen as the repudiation of treaty obligations which they are.

This Article is an unapologetic call to resist the normalization of practices so deeply at odds with the letter and spirit of the international refugee protection regime. This appeal rests not only on legal obligations, but on moral and ethical considerations which undergird the juridical norms and prohibit denying entry to the stranger when it would cause him or her grave harm. A call to moral and ethical considerations carries particular valence where the potential country of refuge contributed to the conditions leading to flight, and the need for protection.

Part II of this Article describes the origins and scope of our international refugee system, followed by an overview of the policies which circumvent or undermine protection—focusing on the United States, Australia, and the European Union. Part III articulates the moral and ethical arguments for the admission of those seeking protection. Finally, in Part IV, using the example of the United States’ role of intervention in Haiti, Guatemala, El Salvador, and Honduras, I will lay out the argument for an even greater responsibility where history reveals the moral debt owed by the country of refuge to those fleeing persecution.

-KitJ