Principles and Obligations Underlying U.S. Asylum Law

U.S. asylum law is based on two separate but related sets of preexisting standards in international law: (1) the customary principle of “nonrefoulment,” a principle of customary international law that predates current institutions and treaties on treating asylees and refugees; and (2) obligations directly binding on the United States by its participation in several international conventions administered and coordinated by the United Nations.

The Principle of Nonrefoulment

According to the United Nations High Commissioner for Refugees, “The principle of non-refoulement forms an essential protection under international human rights, refugee, humanitarian and customary law. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill[-]treatment or other serious human rights violations.” The first historical record of the principle of non-refoulment appears to be from the 1892 Geneva Session of the Institut de Droit International (“Institute of International Law”). At that meeting, the Institute crafted a restatement of international law principles, “Règles internationales sur l'admission et l'expulsion des étrangers.” Within that restatement, the Institute articulated—apparently for the first time—the notion that states should not extradite a person to another state unless it was reasonably guaranteed that the person would not be subjected to cruel treatment or torture. Specifically it stated:

“L'expulsé réfugié sur un territoire pour se soustraire à des poursuites au pénal, ne peut être livré, par voie détournée, à l'Etat poursuivant, sans que les conditions posées en matière d'extradition aient été dûment observées.”

“An expelled person who has taken refuge in a territory to avoid criminal prosecution cannot be handed over, by indirect means, to the prosecuting State, without the conditions laid down in matters of extradition having been duly observed.”

In subsequent years, the so-called “principle of nonrefoulment” has formed the backbone of international humanitarian law as it applies to refugees and the international extradition of criminal suspects.

International Conventions on Refugees, Asylum, and Torture

World War II caused the most significant human migration in history. Civilians fled the violence in droves. Moreover, significant numbers of non-Germans fled Nazi-occupied territory to escape the Holocaust. Not being fully aware of the scope of the atrocities, many countries—including the United States—turned away Jewish refugees. When the death camps were finally liberated in 1945, the world could no longer ignore the plight of those individuals and the role they played in their fate: the stage was set for significant updates to international humanitarian law.

A&E Documentary on the voyage of the St. Louis, a passenger ship full of Jews fleeing Nazi persecution after Kristallnacht, which was repeatedly turned away from entering ports in several countries—including the United States—in violation of later obligations under U.S. and International asylum law.

In 1946, the newly formed United Nations established the International Refugee Organization to address refugee problem created by World War II.

1949, the principle of nonrefoulement was codified in Article 45 of the Geneva Convention relative to the Protection of Civilians Persons in Time of War. The development prohibited all the signatory nations, including the United States, from returning a civilian to a non-signatory state, i.e. a state that was not obligated to treat the individual humanely in accordance with the rest of the Geneva Conventions. It also specified that, “In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs,” a provision that has echoed in subsequent international conventions and domestic laws on asylum and refugee status.

In 1951, the United Nations coordinated the Convention Relating to the Status of Refugees (alternatively called the “Geneva Convention of 28 July 1951” or the “1951 Refugee Convention”). The 1951 Convention was a multilateral treaty that outlined how refugees and asylees were to be treated. However, it’s original language limited its application to conditions arising “as a result of events occurring before 1 January 1951,” i.e. World War II and its aftermath.

The 1951 Convention was supplemented and revised by the 1967 Protocol Relating to the Status of Refugees. The 1967 Protocol removed the temporal limitations on the original 1951 Convention, making its substantive principles applicable to all refugees henceforth.