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PALO ALTO, Calif. - Secretary of Homeland Security Kirstjen Nielsen delivers remarks during the 2018 Digital Forum on terrorism prevention in Palo Alto, California, Feb. 13, 2018. Secretary Nielsen was joined by U.K. Home Secretary Amber Rudd. Official DHS photo by Jetta Disco.

Article by Mudit Burad and Yajat Bansal,

A searing photograph of the sad discovery of a man and his 23-month-old daughter lay face down along the bank of the Rio Grande as they tried to seek asylum in the US, represents that in the loud and caustic debate over border policy, various repercussions usually go unseen due to administrative actions. Similarly, a 7-year-old girl was found dead in the Arizona desert in an attempt to seek asylum in the US earlier this June. A report by the Office of Inspector General of the United States asserts that the concerned authorities are unaware of the actual number of children being separated from their parents by the immigration authorities. However, the US Department of Health & Human Services has identified approximately 2737 children to be separated from their parents.

The man and his 2-year-old daughter were identified as El Salvador nationals who attempted to seek refuge in the US. El Salvador has one of the highest rates of homicides in the world due to gang violence which has been prevailing in the country for decades now. The law and order situation and the political stability of the country are in turmoil due to the intense gang warfare. The residents, therefore, are migrating towards the safe havens where they can seek asylum or refuge. Hence, the above scenario is in complete resonance with the judgement of Columbia v. Peru where the International Court of Justice held that asylum can only be sought where an arbitrary action has been substituted by the rule of law in the asylum seekers homeland.

The legal sphere surrounding the US administration.

According to Title 8 Section 1158 of the US Code, the refugee bears the burden of proof to establish the fact that nationality, religion, race, membership in a particular social group or political opinion shall form as one of the central reasons of persecution of the applicant in his/her native land. In the above case, the asylum seekers were the residents of El Salvador hence belonging to a particular social group who are being forcefully extorted by various internal aggressors. Apart from the domestic law, the US also bears international obligations under Article 33(1) of the United Nations Convention on Refugees, 1951 [“1951 convention”], and its 1967 protocol (which has been duly ratified by the US) wherein the principle of non-refoulement has been referred as a rule of customary international law which makes it incumbent on any state irrespective of it being a signatory or not to prohibit the return of a refugee to a territory where his or her life or freedom is under threat. Under Article 1 of the 1951 Convention, the said phrase, “his/her life or freedom is under threat” is comprehensively interpreted as, such a fear which enables unwillingness or inability amongst refugees to avail protection from the state in which the threat of persecution persists. Article 33 of the 1951 convention also forms as one of the fundamental provisions of the convention and hence is kept out of the purview of reservations, which could be generally made by the state parties at the time of ratification or accession to the convention. In addition to this, Section 3 of Convention against Torture and other Cruel, inhuman or degrading treatment or punishment, 1984 contains an explicit prohibition which prohibits extradition or return of any such person whose life can be apprehended to be under threat on substantial grounds. The convention has been ratified by the USA in 1994 due to which, under Section 25 of the convention, the US is subjected to all of the fundamental provisions that the convention may contain.

The principle of non-refoulement as a fundamental provision of international refugee law is deeply intertwined with the norms of jus cogens. Under international law, the norms which fall within the scope of jus cogens are capable of making certain principles of international law enforceable outside the scope of state sovereignty. Non-refoulement upholds the spirit of basic human rights under which some widely recognised rights include, right to life, freedom from torture, etc. The principle of non-refoulement has been accorded special status as the same is observed as non-derogable right under the 1951 convention under which, the provision of non-derogability cannot be compromised, not even in the circumstances that would in any ordinary course justify derogation from any other rights. Cartagena Declaration on refugees’ forms as an archetype wherein, the principle of non-refoulement is widely recognized as jus cogens by the international community. As under para. III. 5 of the declaration, non-refoulement has not only been regarded as a cornerstone of the international refugee protection law but has also been acknowledged as a principle under the rule of jus cogens. In 2012, the International Court of Justice while deciding upon questions relating to the obligation to prosecute or extradite in the case of Belgium v. Senegal acknowledged the jus cogens character of the prohibition of torture by assigning the same special status for the unconditional enforcement of non-refoulement. Under the judgement, the framework of the prohibition of torture could be analogically deduced to being resonated like that of non-refoulement. All these elements together constitute a dynamic which supports the jus cogens nature of non-refoulement.

US Border Policies: Actions and Implications.

In the still warm deal over border policy between the US and Guatemala, the US in a much strategic attempt has ventured to evade its responsibilities by inducing the Guatemalan president to sign the treaty on unconscionable terms. The deal buzzed as “safe third country agreement,” shall entail a pre-condition on all those asylum seekers who travelled to the US by land through Guatemala to seek asylum in Guatemala in the first place. This precondition if seen in the light of the current state of affairs prevailing in Guatemala, can be deduced as an indirect attempt by the US to disregard the fundamental principles underlying the concept of asylum-seeking which the principle of non-refoulement holds. Apart from this, the Trump administration has till now introduced various policies under its regime to debar the entry of asylum seekers to seek refuge in the country. US Attorney General Jeff Sessions announced the zero-tolerance policy in April 2018, which aims to initiate criminal proceedings against the people who are caught crossing the US border by undermining the established procedure. Under the light of said executive order, till now almost 3000 children have been separated from their parents. Apart from this, the Trump administration has imposed various deterrents to make the application for asylum more cumbersome. For instance, asylum seekers have been compelled to wait for a period of six months on the side of the US-Mexico. The psychological impact amongst the adult migrants and the children due to detention and deportation has been observed to be a major detrimental factor contributing to suicidal tendencies and deterioration of mental health. A 2018 report by ProPublica, America’s leading newsroom known for its investigative journalism in the public interest, has observed that the process of separation of children from their families has led to rampant rates of commission of sexual abuses in shelter homes which are often regarded as the so-called safe havens for asylum seekers. In the most recent announcements on the immigration policy, the Trump administration has pressed for a new rule which would essentially ban all the asylum seekers from seeking asylum who belong to “safe third world” or Central American nations. The administration states the rule as “enhancing the integrity of the asylum process by placing further restrictions or limitations on eligibility,”


The protracted and cumbersome process of asylum-seeking in the US coupled with various administrative orders passed by the Trump administration quite distinctly represents that the US has engaged in the violation of basic human rights. And these violations have emerged after contravening the principle of non-refoulement which has been recognized as having the jus cogens nature in customary international law. This current incessant neglect of the US to comply with the international conventions to provide asylum is a clear consequence of various intermingled socio-political and economic trends. And therefore, considering the 2020 US presidential elections, the incoming president of the US bears the responsibility of complying with the international norms which are being violated by the current administration.

1 comment

1 comentário

15 de set. de 2019

Great article indeed. Well researched and well drafted.

This article was a legal article.

I completely agree with your stance.

It boils down to following the social liability aspect of a legal system or general view of liability

Which means can we make a person liable for his omission to save other person or not.

But this will be a jurisprudential debate not a legal debate.

The problem which needs to be addressed is that US is part of such treaties, means it has certain number of commitments to comply to, which the administration is flouting.

If the USA had taken a clear stance that they'll not allow any asylum seekers no matter what. Then it'd have been a no…

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