Loading...
Refugee Detention As Constructive Refoulement
Tabak, Shana
Tabak, Shana
Collections
Files
Loading...
YJIL 48_7.pdf
Adobe PDF, 1.84 MB
Abstract
The most fundamental obligation that states owe to refugees under the 1951
United Nations Convention Relating to the Status of Refugees is the commitment
of non-refoulement. This commitment to “not force back” a refugee to a country
where she may face serious harm to her life or liberty demands that states
interrogate whether their treatment of refugees comports with their legal
obligations toward these individuals. One urgent site for inquiry is the
widespread practice of immigration detention. The practice of immigration
detention raises human rights concerns, including the stripping of due process,
the lack of individualized assessment, and the arbitrary deprivation of liberty.
In the United States, the detention of refugees presents an apparent
contradiction: the state posture is one of respect for rule of law and its legal
obligation of non-refoulement, yet perversely, the country detains refugees in
such intolerable conditions and with such limited access to legal counsel that
their chances at winning asylum are slim to none. The result is a pandemic of
asylum denials and deportations of asylum-seekers. This Article identifies and
describes this dissonance and offers a potential framework for thinking about a
legal remedy.
Drawing on an analysis of the human rights violations in the United States’
practice of migrant detention, this Article presents a framework for a legal
concept as yet untested in U.S. case law: constructive refoulement. Constructive
refoulement arises when a state orchestrates material conditions so intolerable
for an asylum-seeker that she has no choice but to return to the country from
which she fled. This Article characterizes the refugee detention regime in the
United States as anarchic, violative of due process, and morally corrupt. Such a
characterization also demonstrates that the refugee detention regime breaches
international and domestic law obligations. Ultimately, the United States’
practice of detaining refugees frustrates the intent of asylum-seekers to pursue
protection and thereby amounts to constructive refoulement in violation of
international law.