Under international law, when can states deny refugees asylum on the basis of national security: an analysis of the 2017 U.S. ‘travel ban’ executive orders and the suspension of the refugee admissions program
In 2017, President Trump of the United States issued the ‘Travel-Ban’ Executive Orders. These orders restricted immigration from certain Muslim-majority countries and suspended the U.S. Refugee Admissions Program for 120 days. Subsequently, on 24 September 2017, the President issued Proclamation 9645, which continued many of these immigration restrictions. The actions of the U.S. President reflect the growing connection between refugees and issues of national security. This paper seeks answer the question as to when states can reject refugees on the basis of national security under international law. Particularly, this paper provides an overview of the international refugee law regime and the extent to which nation states are bound by their obligations. Subsequently, this paper outlines the national security exceptions to refugee status under international law – with specific regard to Article 33(2) and Article 1F of the UNHCR Refugee Convention, and the concept of non-entrée. Following, it outlines the domestic U.S. immigration and refugee law regime, and its relationship to international law. Subsequently, this paper performs an analysis of President Trump’s ‘travel-ban’ executive orders. Finally, it assesses whether the executive orders violate the United States’ international law obligations – holding that a blanket immigration and refugee ban does not fall within the scope of the national security exceptions provided in international law. In conclusion, this paper holds that the ‘travel-ban’ executive orders and the Proclamation put the U.S. in violation of its obligations under international law. This paper aligns with the current literature in its examination of the relationship between national security and refugee law – however, it is able to consider these issues in light of recent events in international refugee law. Importantly, this paper provides an academic analysis of the executive orders and the Proclamation from an international law perspective, where much of the previous literature focused primarily on U.S. domestic law. Thus, this paper aims to be at the forefront of legal analysis of the United States’ policies regarding refugees and immigration.
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