Can’t be held responsible: Weak norms and refugee protection evasion

Bridging norm dynamics and refugee studies

The study of norms, commonly defined as standards of appropriate behavior based on collective understandings and moral assessments, ⁶ is central in IR. Constructivist approaches have been instrumental in foregrounding the power of norms in shaping interests, identities, and behaviors, envisioning important roles for normative discourses in regulating and constituting governance. ⁷ At the international level, norms shape collective expectations for rightful action among states and other actors, providing a ‘logic of appropriateness’ that governs membership and status while legitimizing patterns of authority. ⁸ The intersubjective recognition of what is proper and acceptable emerges in a global social hierarchy in which behavior is bound by communities with given identities, such that norms generate comparative judgments wherein states are ranked and assessed as ‘modern’ and ‘democratic’ in relation to one another. ⁹ Within this paradigm, for instance, US contributions to global refugee responsibility-sharing and adherence to asylum norms can be understood as legitimizing US hegemony and affirming claims to ‘liberal democratic’ status.

Many scholars have explored the spread of international norms and the factors prompting states to adopt and adhere to such guidelines. Theories of norm diffusion and compliance have focused on activist pressure by norm entrepreneurs, institutional incentives for state cooperation, coercion by powerful external actors, state capacity for norm enforcement, and signaling processes for demonstrating legitimacy and commitment to democracy. ¹⁰ This literature has been heavily influenced by Finnemore and Sikkink’s ‘life cycle’ model, which delineated three successive stages: first, norm entrepreneurs persuade a critical mass of states to embrace a new norm (emergence); next, other states are socialized to follow the norm due to pressures of conformity and desires to enhance legitimacy (cascade); and finally, the norm becomes internalized such that it acquires a ‘taken-for-granted quality’ and is no longer debated (internalization). ¹¹ This early conceptualization prompted a number of critiques. ¹² Indeed, the forthcoming analysis indicates that refugee protection norms are not easily categorized within this model. Recent work has rightly challenged assumptions of unidirectional movement toward compliance and internalization, ¹³ taking issue with the model’s ‘static’ approach for inadequately capturing the extent to which norms are processes characterized by constant fluidity and evolution. ¹⁴

Within the vast IR literature on norm dynamics, relatively little attention has focused on refugee and asylum protection norms. Important work has explored the role of civil society groups and the United Nations High Commissioner for Refugee (UNHCR) in propagating refugee protection norms, ¹⁵ and the historical evolution of these norms. ¹⁶ But there remains a shortage of studies scrutinizing the complex and ambiguous status of refugee protection principles and the implications of this status for norm violation and evasion. This article addresses that gap, and contributes to calls for efforts to theorize the factors influencing state responses to displacement. ¹⁷ Better scrutiny of the normative principles surrounding the protection and treatment of individuals fleeing persecution can also help address lingering puzzles regarding ‘what is needed to hollow out established human rights norms [and] to create acceptance for contested policies’. ¹⁸

This exploration is particularly salient for understanding norm evasion, in which states act contra the underlying spirit and principles of international norms while technically complying with their legal components. ¹⁹ Norm evasion captures the instrumentalization of claims of ‘formalistic consistency’ to justify policy moves. ²⁰ Norm evasion can be distinguished from ‘good faith non-compliance’, in which governments ‘make real efforts to foster an agreement’s goals, but fall short of the agreement’s legal standards’. ²¹ Rather than striving to fulfill the overarching purpose of legal standards but unintentionally violating them due to capacity problems or lack of knowledge, governments engaged in evasion claim to follow the ‘letter of the law’ while deliberately minimizing its attendant obligations. ²²

To illustrate how ambiguities and weak codification surrounding many aspects of refugee protection facilitate government evasion of human rights responsibilities, the article draws on analysis of US refugee and asylum policies under the Trump administration. The US case is important, as US retreats from refugee responsibility-sharing beginning in 2017 triggered a ‘domino effect’ in third-country refugee resettlement. ²³ The International Rescue Committee, for example, estimated a nearly 50 percent decline in global resettlement slots. ²⁴ In 2018, US refugee admissions fell below 23,000 – the lowest level since the establishment of the US resettlement program in 1980 – and in mid-2019 annual admissions were on track to be similarly low. ²⁵ While there has been no ‘golden age of asylum’, ²⁶ such low levels of US refugee responsibility-sharing can be contrasted with historical averages of around 80,000 admissions per year between 1980 and 2016. ²⁷ Beyond unprecedented reductions in refugee responsibility-sharing, Trump-era policies such as the ‘travel ban’ and ‘zero tolerance’ approach along the southern border with Mexico provide important opportunities for assessing the status of non-refoulement, non-discrimination, non-penalization, and non-detention and for exploring how weak normative principles can be instrumentalized by governments to avoid accountability for breaches of refugee protection.

Weak norms and refugee protection

Norm clarity and specificity have been identified as important factors animating normative change within international politics. ²⁸ Some studies link deficiencies in implementing human rights law with difficulties in ascertaining whether states have violated their treaty obligations. ²⁹ Within the IR norms literature, the overall effects of norm precision appear somewhat ambivalent. ³⁰ Pragmatic constructivist perspectives suggest some level of vagueness in the prescriptive elements of human rights norms may be entirely appropriate, since ‘how best to protect a vulnerable population in the context of political pluralism varies according to the contingencies of the particular crisis’. ³¹ Ambiguity might, for example, broaden the available ‘toolkit’ of policy responses when governments wish to fulfill the deeper values underpinning a norm. ³² But in the case of norm evasion, such elements of ambiguity-as-flexibility arguably dissipate as governments seek to subvert the underlying spirit and purpose of the norm. Vagueness helps disguise violation when governments wish to minimize their obligations given that ‘the less specific the norm, the easier it is for actors to justify violations in the fuzzy language of a norm’s prescriptions and parameters’. ³³

The concept of ‘loose’ or ‘weak’ normative environments has been explored in psychology and associated with wider ranges of permissible behavior, less concern with upholding social order, and less sanctioning of norms violations. ³⁴ Applied to human rights norms, international regimes undergirded by loose or weak normative principles might enable states to engage in wider ranges of policy practices, show less concern for upholding related components of the rules-based international order, and avoid being sanctioned for violating human rights standards. This section surveys important norms surrounding refugee and asylum protection, assessing their clarity, precision, and codification within international human rights regimes.

A right to seek asylum from persecution can be traced back to the ‘right of sanctuary’ in ancient Greece and imperial Rome, ³⁵ and refugees have been distinguished as a special category of migrants deserving protection in shared understandings and state practices dating back to the seventeenth century. ³⁶ Contemporary refugee and asylum protection norms became institutionalized in post-World War II international organizations and human rights laws. The 1948 Universal Declaration of Human Rights (UDHR) and the 1951 Convention on the Status of Refugees – along with its 1967 Protocol – have been particularly salient in the emergence and diffusion of international norms surrounding refugees and asylum. The Refugee Convention and Protocol have been ratified by over 145 states in the international system, suggesting, prima facie, successful norm ‘cascade’. ³⁷ In addition to outlining refugee rights and protections, the treaty defines the parameters of eligibility regarding who qualifies as a refugee under international law. ³⁸

State obligations toward individuals fleeing persecution also flow from instruments including the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), and the European Convention on Human Rights (ECHR), as well as United Nations (UN) resolutions and Executive Committee (ExCom) conclusions. ³⁹ Combined with the Refugee Convention, these instruments coalesce to establish a complex bundle of norms governing the treatment of refugees and asylum-seekers including: prohibitions on the return of refugees to territories where they might face harm, persecution, or torture (non-refoulement); prohibitions on restricting freedom of movement and penalizing irregular entry (non-detention and non-penalization); prohibitions on denial of protection based on race, religion, or national origin (non-discrimination); and expectations to participate through international cooperation in refugee ‘burden-sharing’ (responsibility-sharing). The agreement of UN member states at the 2005 World Summit and in subsequent UN Security Council resolutions to accept a collective responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity has also been linked to a Responsibility to Protect (R2P) refugees fleeing such mass atrocities. ⁴⁰ As discussed below, these principles operate at varying levels of codification.

Can’t be held responsible? A look at US evasions

Ambiguity and imprecision are common characteristics of international norms. ⁸⁶ The multiple normative components of refugee protection described above reflect the extent to which the study of norms in IR is complicated by ‘vagueness’ in identifying the principles under investigation. ⁸⁷ While precision is not a panacea for preventing applicatory contestation, it must also be recognized that normative ambiguity and weak codification can be instrumentalized by states in undermining core human rights standards, and this is connected in important ways to accountability problems. State practices need not be entirely consistent for a norm of customary international law to survive, ⁸⁸ but repeated actions subordinating norms and treaty obligations can lead to a ‘permanent erosion of normative standards’. ⁸⁹ This section highlights how accountability problems manifest in US refugee and asylum policies under the Trump administration, particularly vis-à-vis the ‘travel ban’, ‘zero tolerance’ approach to asylum at the southern border, and dramatic retreats from refugee responsibility-sharing.

A brief synopsis of US refugee and asylum policy reveals a complicated portrait. While the United States played prominent roles in drafting the UDHR and resettling postwar European displacees, it did not initially ratify the Refugee Convention and opted to define refugees as individuals fleeing communism. ⁹⁰ Twelve years after ratifying the 1967 Protocol, the Refugee Act of 1980 brought US policy more in line with international norms, creating a standardized system for resettling refugees and adopting Refugee Convention language to define refugee status. This incorporation of international treaty language into US domestic law aligns with theoretical expectations of norm internalization. In practice, however, the US government interpreted refugee status based on a ‘well-founded fear of persecution’ in accordance with domestic political dynamics, anticommunism, and immigration control. The US Attorney General maintained broad powers to determine the outcomes of specific asylum cases derived from assessments of conditions and perceptions of Othered identities linked with asylum-seekers’ countries of origin.

Throughout the 1980s and 1990s, US policies of interdiction on the high seas to prevent Haitian and Cuban asylum-seekers from reaching US shores were condemned by human rights advocates as violating non-refoulement. However, the US Supreme Court upheld these practices using strictly territorial readings contra UNHCR interpretations. ⁹¹ Domestic courts also allowed for the deportation of asylum-seekers that could or might face persecution if returned but who could not prove that they would be persecuted, once again subverting the core tenets of non-refoulement. ⁹² Post-9/11, US legislation expanded discretionary powers of immigration judges in determining claimants’ ‘credibility’ for asylum on the basis of good speech, narrative rationality, and other factors outside the substantive content of asylum-seekers’ cases. ⁹³ Increased use of ‘expedited removal’ procedures further undermined non-refoulement and facilitated erroneous deportations of asylum-seekers apprehended within 100 miles of the border. ⁹⁴ Evasions of non-refoulement, the most strongly codified refugee protection norm, thus occurred well before the Trump administration.

These practices established important precedents in US policy. In 2007, the UN issued an advisory opinion clarifying that non-refoulement applies ‘wherever a State exercises jurisdiction’, and that it does not matter whether the asylum-seeker is ‘on the State’s national territory, or within a territory which is de jure under the sovereign control of the State, but rather whether or not he or she is subject to that State’s effective authority and control’. ⁹⁵ Despite this clarification, the legacy of the Haitian interdiction policy endured and was directly referenced as a legal justification in the text of President Trump’s 2018 Presidential Proclamation declaring migrants who enter the United States irregularly along the southern border to be ‘ineligible’ for asylum. ⁹⁶ As previously discussed, the UNHCR instructs that asylum-seekers and refugees should not be prevented from pursuing protection once they have come under a state’s jurisdiction, regardless of whether their entry or presence is lawful. In denying asylum to anyone who crosses the southern border with Mexico outside a designated port of entry (even if the individual has a meritorious asylum claim), the proclamation and its attendant rule promulgated by the US Attorney General and Department of Homeland Security (DHS) directly contravened this principle.

Shortly after the proclamation, the asylum rule was blocked through a temporary restraining order issued by a federal district judge. In upholding the injunction, the circuit court found that the asylum rule had not been shown to be a lawful exercise of Executive Branch authority and contradicted existing US immigration legislation on asylum, which is rooted in US treaty obligations under the Refugee Convention and Protocol. ⁹⁷ The US Supreme Court upheld the temporary restraining order in a very close (5-4) decision, in which the four dissenting Justices would have granted the Trump administration’s request to lift the injunction and let the asylum order go into effect. ⁹⁸ A debate over the merits of asylum regulations could return to the Supreme Court in the future, particularly in light of proposed 2019 legislation seeking to overhaul US asylum policy ⁹⁹ and the implementation of a 2019 ban on asylum eligibility for individuals who did not first apply for protection in a safe transit country. ¹⁰⁰ While such unprecedented restrictions on asylum eligibility directly undermine the tenets of non-refoulement, US officials justified these moves as ‘a lawful exercise of authority’ and claimed to be in compliance with the technical requirements of non-return. ¹⁰¹

That US evasions and subversions of refugee protection principles increasingly hinge on closely divided domestic court rulings is reaffirmed by the US Supreme Court’s upholding of the Trump administration’s ‘travel ban’. The ban was initiated through a 2017 executive order, which originally restricted all immigrant and non-immigrant nationals from seven Middle Eastern and North African countries and specified an indefinite ban on the entry of all Syrian refugees. ¹⁰² Given its exclusion of migrants and refugees on the basis of nationality and religion, as well as its effects in prompting the expulsion of individuals arriving in US airports without opportunities for credible fear interviews for asylum, the travel ban undermined both non-refoulement and non-discrimination principles. Amid a series of domestic legal challenges, the ban was revised to incorporate restrictions on the entry of migrants from five Muslim-majority countries – Iran, Syria, Yemen, Libya, and Somalia – as well as travelers from two non-Muslim countries (North Korea and Venezuela), enabling the US administration to claim technical compliance with religious non-discrimination principles. The revised executive order, popularly known as ‘Travel Ban 3.0’, continued a policy of group-based denial of access to protection on the basis of nationality, however. Despite this breach of non-discrimination norms, the US Supreme Court affirmed through a close (5-4) decision the legality of the travel ban on the basis of broad Executive power on matters related to national security. ¹⁰³

Domestic court interpretations have also enabled the United States to subvert non-penalization and non-detention norms in its treatment of asylum-seekers, affirming that US statute supersedes customary international law prohibitions on the issue of prolonged arbitrary detention. ¹⁰⁴ Long and arbitrary periods of detention have been particularly common in the treatment of asylum-seekers along the southern border with Mexico. ¹⁰⁵ The detention of child asylum-seekers, a lack of access to legal advice for detained asylum-seekers, and detention in the same locations and conditions as suspected or convicted criminals have all been significant concerns regarding US erosions of refugee protection standards. ¹⁰⁶ In 2002, the UN issued an advisory opinion clarifying that detention should not be used as a deterrent to prevent irregular migration. ¹⁰⁷ In 2018, however, the Trump administration developed a series of ‘zero tolerance’ policies justified in part on the basis of deterrence. These included the detention and separation of families arriving irregularly by DHS authorities, as well as the criminal prosecution of all irregular entries along the southern border. These practices undermined both non-detention and non-penalization norms. As previously discussed, criminal prosecution and detention of asylum-seekers for irregular entry contravenes the principle that protection should be applied to individuals fleeing persecution ‘whether or not [that] status has been formally assessed’. ¹⁰⁸

The family separation component of the zero tolerance approach predated its formal public announcement, resulting in an unknown number of children – estimated by the Inspector General to be in the thousands – being separated by DHS authorities from their parents and guardians between the summer of 2017 and the summer of 2018. ¹⁰⁹ After months of public backlash, the family separation practice was halted by an executive order signed by President Trump in June of 2018. However, the order stated that the zero tolerance approach would continue in terms of pursuing criminal prosecution for all cases involving illegal entry. Judicial districts along the southern border have since reported substantial increases in irregular entry and reentry cases being referred for prosecution, including asylum-seekers. ¹¹⁰ Moreover, the zero tolerance approach has entailed guidance to asylum officers directing them to consider ‘illegal entry’ as a factor weighing against claimants’ applications, resulting in the penalization and deportation of bona fide asylum-seekers. ¹¹¹ Beyond undermining non-penalization norms, these practices derogate from the core principles of non-refoulement.

The weak normative status of many of the principles described in this article exacerbates the lack of recourse for holding the United States accountable for its growing departures from refugee protection. That the US government has become more brazen in evading asylum norms is not only reflected in the Trump administration’s ‘travel ban’ and ‘zero tolerance’ policies but also in its dramatic retreat from refugee responsibility-sharing. As previously mentioned, a significant portion of the decline in third-country refugee resettlement worldwide has been facilitated by major cuts in US refugee admissions. The Refugee Council USA reported a 70 percent decline in US refugee arrivals, including a 90 percent reduction in the resettlement of Muslim refugees between 2017 and 2019. ¹¹² In 2018, the United States was also distinguished as one of only two countries to vote against the UN Global Compact on Refugees, a non-binding agreement to bolster global refugee responsibility-sharing. ¹¹³ The notion of a Responsibility to Protect refugees offered little value in terms of pressuring the administration to modify its approach to refugee protection, particularly considering that most of the migrants denied from entering and accessing protection in the United States through the travel ban resided in countries experiencing grave human rights abuses amounting to mass atrocity crimes. The absence of codification of specific criteria or standards for allocating refugee responsibility-sharing among states has complicated efforts by human rights groups to hold the US government accountable to its near total halt, for instance, of Syrian refugee resettlement.

On the whole, these practices undermining refugee protection norms have generated little repercussions for the US government. The UNHCR is the agency entrusted with overseeing the application of the Refugee Convention. ¹¹⁴ However, unlike most major human rights treaties, the Convention lacks an independent supervisory body charged with reviewing periodic reports and monitoring compliance. ¹¹⁵ Article 38 provides for the referral of disputes over the treaty’s application to the International Court of Justice, yet no state party has ever pursued a case against another for non-compliance. This reinforces the notion that ‘effective legal accountability mechanisms’ for holding states responsible for violations of refugee protection norms remain ‘weak’ or ‘non-existent’. ¹¹⁶ Edwards notes that the UNHCR has not stressed the obligatory nature of refugee law in the context of international human rights doctrine, but has instead suggested it merely as ‘helpful guidance’ for policymaking, enabling states to ‘flout minimum standards’. ¹¹⁷ While domestic courts sometimes refer to the UNHCR Handbook as a tool in providing such guidance, the Handbook recommendations are non-binding. ¹¹⁸

The UNHCR has expressed disapproval of US policies. However, it has been criticized in the wake of recent practices for a fundamental ‘inability to challenge the Trump administration’. ¹¹⁹ Scholars, human rights organizations, and refugee advocates have sought to call attention to the ways in which Trump-era asylum policies entail derogations of international law, but the impact of these efforts appears minimal. Risse, Ropp, and Sikkink suggest ‘naming and shaming can only be successful if either the target actors or an audience central to the change process actually believes in the social validity of the norm’. ¹²⁰ It is unclear whether any administration officials with decision-making power in the realm of refugee and asylum policy subscribe to the validity of the international human rights principles surrounding non-refoulement, non-detention, non-discrimination, or responsibility-sharing. Moreover, rhetoric from US officials directly challenging the moral weight of non-penalization is common. This skepticism is reiterated by the administration’s break with past practices in ceasing to cooperate with or respond to official complaints from UN Special Rapporteurs investigating human rights violations, including queries regarding the government’s asylum policies. This level of non-cooperation on behalf of the US government has been taken by some UN officials as indicating an unprecedented abandonment of ‘even the most rudimentary forms of human rights accountability’. ¹²¹

Conclusion

Over a decade ago, Tim Dunne asked whether the human rights regime could persist ‘with chronically weak institutions and a challenge from within the liberal core’, that is, states like the United States and United Kingdom, which ‘were central to its emergence and survival during the Cold War’. ¹²² Attention to how weak norms hinder refugee protection enriches explorations of norm evasion in IR and offers opportunities for considering practical barriers to the implementation of human rights law. This article has shown that refugee protection entails a complex bundle of normative principles, but that even the most widely institutionalized and presumably well-entrenched component in this bundle – non-refoulement – remains impeded by diverging interpretations and domestic evasions undermining its core tenets. Non-penalization, non-detention, and non-discrimination principles are similarly characterized by ambiguities and unclear standards in terms of asylum status determination procedures. Norms surrounding refugee responsibility-sharing remain the weakest of all, lacking any meaningful codification or explicit criteria within international refugee and human rights law. This portrait of refugee protection underscores the importance of recognizing norms as multidimensional rather than singular entities, with intricate components that ‘strengthen, weaken, and evolve’. ¹²³ This analysis also reiterates norm diffusion as an ongoing negotiation process in which entrepreneurs must continually work toward consolidation of the norms they promote. ¹²⁴

The article’s exploration of US asylum policies under the Trump administration raises important questions about evasions of human rights standards by ‘modern’, ‘developed’, or ‘democratic’ states within a global social hierarchy. As Towns notes, norms ‘validate certain kinds of behavior for specific sorts of actors and devalue other sorts of behavior’, and it is this allocation of value that imbues norms with much of their power. ¹²⁵ Given the lack of sanctions and practical avenues for legal recourse in response to US asylum practices, might costs to international reputation and legitimacy potentially trigger accountability mechanisms? Or will nothing stand in the way of continued US departures from refugee protection and international human rights norms?

These questions remain unanswered, but the article offers a sharper response to assumptions and hopes of an inherent linearity in which the international system progressively evolves toward greater norm compliance and enforcement of human rights standards. This analysis reveals how inclinations toward ‘a more peaceful, moral, liberal future’ based on a ‘progressive trajectory’ of liberal principles within the norms literature are indeed misguided. ¹²⁶ The behavior of democratic world powers contra core human rights principles surrounding non-discrimination, non-refoulement, and other refugee protections underscores the importance of debates over accountability in the ‘liberal world order’. ¹²⁷ In the realm of refugee protection norms in particular, this article suggests that accountability remains elusive. Contentious domestic court rulings appear to offer one of the only meaningful bulwarks against the subversion of refugee protection, but just as often facilitate norm evasion and ‘refugee roulette’. ¹²⁸