The Right to Refuge
In the previous chapter we discussed the fiduciary theory's cosmopolitan implications in circumstances in which states detain foreign nationals in the course of an armed conflict. Those implications arise, we argued, from the state's ongoing assertion of liberty-depriving control over detainees. In this chapter, we discuss the theory's implications in the refugee context in which foreign nationals petition a state (the "receiving” or "host” state) for asylum. In these circumstances, the state typically does nothing to put itself into contact with the asylum seeker; it is the refugee claimant who ordinarily arrives at the border of the receiving state in search of safe harbor. Thus, unlike in the detention context, the state's duties to the claimant cannot rely on any particular liability-incurring action it has undertaken. Of course, many states have ratified the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (Protocol), and have thereby acquired various treaty-based duties to asylum seekers, most notably the duty of non-refoulement, an obligation to refrain from expelling or returning asylum seekers to places of danger. But it is within the state's prerogative to ratify these instruments or not, just as it is within the state's prerogative to withdraw from them. Generally, then, an unwilling state does nothing obvious to incur an international legal obligation to take in refugees. To make matters more difficult still, under the Westphalian conception of sovereignty, the state has exclusive jurisdiction over its territory and questions of entry, with the result that, under this conception, the state has unfettered discretion to decide whether to admit foreign nationals into its territory. Both the classical conception of sovereignty and the relative passivity of the receiving state pose significant challenges to any attempt to explain or defend the rights enjoyed by refugees under international law.
Bearing these and other challenges in mind, we argue that the fiduciary theory of sovereignty explains the duty of non-refoulement as a peremptory norm of international law. As a prescriptive theory, the fiduciary approach mandates non-absolute, defeasible rights of asylum and eventual permanent residence, including the option of naturalized citizenship. Collectively, these norms confer on asylum seekers an entitlement to enter and remain within a receiving state (subject to some qualification), even if the state is not a party to the Refugee Convention and its Protocol, or any other treaty with relevantly similar provisions. The rights of refugees, then, ultimately crystallize as a right of potentially permanent residence in a host state, with the possibility of eventual citizenship. This right of refuge flows, we claim, from the intersection of the state's position as a joint fiduciary of the earth's surface on behalf of humanity, on the one hand, and its position as a local fiduciary that international law entrusts with sovereignty over the people within a certain territory, on the other. The state acquires a cosmopolitan duty to grant refuge when an individual fleeing irresoluble threats to her human rights appears at its border.
When judged against the current state of international refugee law (IRL), advocacy of a universal right of refuge is an admittedly strong prescriptive claim. As we shall see, the Convention and the Protocol do not provide a right of asylum—much less permanent status—but rather the weaker duty of non-refoulement. We begin with a discussion of the development and practice of IRL, which is grounded mainly in the Convention and its Protocol, certain provisions of other international conventions, and regional agreements. As an interpretive theory, the fiduciary account of sovereignty explains many of the central features of this regime beyond its explanation of the conventional duty of non-refoulement, including: the customary and jus cogens status of the duty of non-refoulement, IRL's self-understanding as a system of surrogate protection, the Refugee Convention's principles of non-discrimination and non-penalization for unauthorized entry, the doctrine of alienage according to which IRL applies only to persons outside their countries of origin or habitual residence, the connection of IRL to de jure and de facto statelessness, and, the availability of international identity and travel documents. Some of the fiduciary theory's prescriptions, in addition to a general right of refuge, include: eliminating the Refugee Convention's limited grounds of persecution and focusing instead on the individual's vulnerability to human rights abuses under conditions of impunity, condemnation of current interdiction and other non-entree practices, significant constraints on burden-sharing arrangements that involve forcible transfers of asylum seekers or refugee "warehousing” in camps, a duty of justification owed to any person denied asylum, and, independent and international review of any municipal decision to deny asylum. Moreover, the fiduciary theory clarifies one of IRL's most contested and important concepts—persecution—which is central to the definition of "refugee” found in the Refugee Convention but is itself undefined.
We develop these arguments in three stages. In Part II, we sketch the history and main features of IRL. In Part III, we discuss humanitarian, human rights, and territorial accounts of refugee law, and their respective shortcomings. In Part IV, we develop the interpretive and prescriptive aspects of the fiduciary theory of IRL. The fiduciary theory borrows important ideas from human rights and territorial accounts of refugee law, and combines these with the claim that local fiduciary states are also, necessarily, joint fiduciaries of the earth's surface on behalf of humanity. As such, receiving states must open their borders to persons who have fled persecution in their home state. Although our argument in this chapter focuses on providing a coherent jurisprudential framework for refugee protection, the arguments we develop have broader implications for transnational migration, highlighting states' obligations to treat foreign nationals in a manner consonant with their status and standing as beneficiaries of international legal order.
-  Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, entered intoforce Oct. 4, 1954 [hereinafter Refugee Convention].
-  Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, entered intoforce Oct. 4, 1967 [hereinafter Protocol]. As of February 2015, there were 145 parties to theConvention and 146 to the Protocol.
-  See, e.g., Kay Hailbronner, Nonrefoulement and “Humanitarian” Refugees: CustomaryInternational Law or Wishful Legal Thinking?, 26 Va. J. Int'l L. 857, 858 (1985) (describing a universal customary norm of even the duty of non-refoulement as “wishful legal thinking”).
-  One of us has argued elsewhere that states' position as fiduciaries of humanity entails an obligation to justify excluding peaceful but non-necessitous migrants, as well as refugees, from their territory. See Evan Fox-Decent, Constitutional Legitimacy Unbound, in Philosophical Foundationsof Constitutional Law 119 (David Dyzenhaus & Malcolm Thorburn eds., 2016).