Greece just announced that it is suspending the processing of illegal North African immigrants making asylum claims for three months after a dramatic surge in numbers, warning that those arriving by boat will be arrested and detained.
Sound familiar? On Jan. 20, President Donald Trump signed an executive order providing that “aliens engaged in the invasion across the southern border … are restricted from invoking provisions … that would permit their continued presence … including, but not limited to [federal law’s asylum statute] … until … the invasion at the southern border has ceased.”
If the Supreme Court determines that Trump can’t do this without an act of Congress, as a federal judge recently ruled, then Congress should most assuredly act. As Mark Krikorian, my colleague at the Center for Immigration Studies, has posted, “the whole post-WWII asylum regime needs to be scrapped”, explaining in the National Review that the 1951 United Nations Convention Related to the Status of Refugees has been turned into “a crowbar used by the post-national Left to pry open the borders of democratic societies contrary to the will of their citizens.”
Krikorian also made the extremely important but little-known point that “even the people who drew up the Refugee Convention did not intend for it to apply to mass influxes”. Congress should feel free to act in the national interest, unencumbered by inaccurate perceptions as to what the refugee convention “means.”
While the United States was not a convention signatory, we did agree to its “nonrefoulement” obligation by signing the 1967 Protocol Relating to the Status of Refugees. Article 33 of the convention famously provides that “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of” persecution. As I have written, the convention’s negotiators and drafters were laser-focused on ensuring that the obligations their nations would be signing up for did not require them to allow the mass influx of aliens arriving at their frontiers claiming to be refugees. The negotiating history also strongly suggests that the delegates reserved the right of countries to return home participants in mass influxes who had managed to penetrate their borders.
At the drafting session on July 25, 1951, the delegate of the Netherlands recalled the Swiss delegate’s earlier position that the nonrefoulement obligation “would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations,” and then proclaimed that “the Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory” and that “to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by” the nonrefoulement obligation. Then, “there being no objection, the President [of the conference] ruled that the interpretation given by the Netherlands representative should be placed on record.”
If a nation’s non-refoulement obligation applied only to masses of persons who have not yet entered its territory, the drafters’ distinction between mass influxes and “attempted” mass influxes, and their use of the word “across” in the negotiations, would make no sense. The plain meaning of the phrase “across frontiers” is traversing from one side of a country’s frontier to the other — actually entering the country’s territory. Here is a meaningful distinction between mass influxes and “attempted” mass influxes. A mass influx is a successful breaching of the frontier, the border, while an attempted mass influx is an unsuccessful attempt at a breach.
THE DEMOCRATIC PARTY’S EXTREME RHETORIC IS COMING HOME TO ROOST
Consequently, the nonrefoulement obligation is best read as applying neither to immigrants, who are part of a mass influx across a country’s frontier, nor to those “attempting” a mass influx, who have reached the border but have not yet succeeded in breaching it. As Paul Weis concluded in his esteemed commentary on the convention, “It was ruled by the President of the Conference that the [nonrefoulement obligation] does not apply to mass migrations” — period. This makes eminent sense. As Georgetown University Law School Professor Andrew Schoenholtz has noted, “the mass migration concern is simply not one about a refugee’s location in relation to a country of refuge, but rather focuses on the number of refugees.”
Consequently, Congress should feel free to close the insane asylum that our asylum laws have regrettably become.
George Fishman is a senior legal fellow at the Center for Immigration Studies.