Refugee Convention’s ‘Non-Refoulement’ Obligation

Washington, D.C. (October 15, 2024) – A new report from the Center for Immigration Studies reveals that the negotiators of the 1951 UN treaty that has shaped global asylum policy wanted to ensure that the “non-refoulement” obligation — prohibiting the return of individuals to countries where they would face persecution — would not force signatory nations to accept mass influxes of aliens.

This analysis is based on a detailed examination of the negotiating history of the 1951 Convention Relating to the Status of Refugees, which is the basis of the 1967 Protocol to which the United States is a party, and which in turn forms the basis of the 1980 Refugee Act, governing U.S. refugee and asylum policy.

“The crisis in America’s asylum system has its roots in the Refugee Convention’s non-refoulement obligation. Yet the original architects of the Refugee Convention never intended to create a de facto right to asylum or to burden countries with uncontrollable waves of migration,” said George Fishman, the Center’s senior legal fellow and author of the report.

“Today’s immigration crisis, with over a million asylum cases backlogged in court, is a clear sign that Congress must protect our borders and restore balance to the asylum process, ensuring that non-refoulement ceases to be a Trojan Horse for mass illegal migration,” continued Fishman.

Key Findings:

The 1951 Refugee Convention created an obligation not to return aliens to countries where they would face persecution. However, the treaty's drafters clearly rejected a “right” to asylum.
The U.S. Supreme Court, in 1994’s Sale v. Haitian Centers Council, Inc., concluded that non-refoulement does not apply to aliens intercepted on the high seas, most likely limiting its scope to those physically present in the host country.
Convention negotiators worked to ensure that signatory countries were not obligated to accept mass influxes of aliens arriving at, or even penetrating, their borders.
The U.S. now faces an unprecedented influx of individuals seeking asylum, most with fraudulent or unmeritorious claims, with a backlog exceeding one million asylum cases in immigration court. This has placed immense pressure on America's immigration system.