Non-Refoulement in a World of Cooperative Deterrence

65 Pages Posted: 13 Aug 2014

See all articles by James C. Hathaway

James C. Hathaway

University of Michigan Law School; Melbourne Law School; University of Amsterdam

Thomas Gammeltoft-Hansen

Danish Institute for Human Rights

Date Written: August 1, 2014

Abstract

Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations.

As the early generation of non-entrée practices – visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence – has proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate cooperation have emerged in which deterrence is carried out by the authorities of the home or a transit state, or at least in their territory.

The critical question we address here is whether such cooperation-based mechanisms of non-entrée are – as developed states seem to believe – capable of insulating them from legal liability in ways that the first generation of non-entrée strategies were not. We show that three evolving areas of international law – jurisdiction, shared responsibility, and liability for aiding or assisting – are likely to stymie many if not all of the new forms of non-entrée.

Indeed, while legal liability is least clear where the sponsoring state engages in only diplomatic outreach, the provision of financial incentives, or training of personnel or provision of equipment, these options for cooperative deterrence are increasingly viewed by developed countries as unattractive given the inherent uncertainties about whether there will be a solid and dependable deterrent return. The inclination to become more directly involved in order to achieve more control and thereby to increase the likelihood of efficacy thus often pushes states to the more interventionist end of the spectrum of contemporary non-entrée. Yet it is when a state’s own personnel are deployed in aid of deterrence abroad or where joint or shared enforcement is established that legal liability becomes most clear.

Powerful states are thus faced with a trade-off between the efficiency of non-entrée mechanisms and the ability to avoid responsibility under international refugee law. If, as we believe probable, the preference for more rather than less control persists, legal challenges are likely to prove successful. Law will thus be in a position to serve a critical role in provoking a frank conversation about how to replace the duplicitous politics of non-entrée with a system predicated on the meaningful sharing of the burdens and responsibilities of refugee protection around the world.

Keywords: Comparative and Foreign Law, Human Rights Law, Immigration Law, International Law

JEL Classification: K33

Suggested Citation

Hathaway, James C. and Gammeltoft-Hansen, Thomas, Non-Refoulement in a World of Cooperative Deterrence (August 1, 2014). U of Michigan Law & Econ Research Paper No. 14-016. Available at SSRN: https://ssrn.com/abstract=2479511 or http://dx.doi.org/10.2139/ssrn.2479511

James C. Hathaway (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Melbourne Law School ( email )

185 Pelham Street
Carlton
Victoria, 3010
Australia

University of Amsterdam ( email )

Amsterdam, 1018 WB
Netherlands

Thomas Gammeltoft-Hansen

Danish Institute for Human Rights ( email )

Wilders Plads 8K
Copenhagen K, 1403
Denmark

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