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27 Transnat'l L. & Contemp. Probs. 77 (2017-2018)
Contracting out of Non-Refoulement Protections

handle is hein.journals/tlcp27 and id is 87 raw text is: Contracting Out of Non-Refoulement Protections William Thomas Worster* I. IN TRODU CTION .......................................................................................... 77 II. NON-REFOULEMENT OBLIGATION ................................................................. 77 III. A GREEING ON FACTS .................................................................................. 82 IV. AGREEING ON JURISDICTION ..................................................................... 87 IV . N ORM ATIVE CONFLICT .................................................................................. 98 V . C ON CLU SION ............................................................................................... 106 I. INTRODUCTION Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations that the Refugee Convention, Torture Convention, and human rights treaties impose. Non-refoulement is a legal norm that prohibits countries from expelling vulnerable people to states where they might face serious mistreatment. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period; even being viewed as a human right by some.1 However, recently states have begun entering into international agreements and treaties that overcome the non- refoulement obligation through a number of arrangements. This Article looks at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction, and agreements creating competing norms. This Article documents an emerging trend and critiques that trend legally. It does not seek to assess whether states have any mala fides in adopting these agreements. In fact, good intentions motivated the adoption of most of the agreements at issue: ensuring public security, prosecuting international criminal law, and promptly returning of abducted children. However, these agreements have had the effect of avoiding non-refoulement. This Article draws attention to these effects, criticizes them, and emphasizes that we should not lose sight of the need to protect vulnerable people from expulsion. II. NON-REFOULEMENT OBLIGATION Multiple treaties impose an obligation not to expel a person to a situation Senior Lecturer, International Law, The Hague University of Applied Sciences, The Hague, The Netherlands; Ph.D. candidate in Public International Law, University of Amsterdam, Faculty of Law, Amsterdam, The Netherlands; LL.M. (Adv.) in Public International Law, cum laude, Leiden University, Faculty of Law, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois; B.A., Modern European History, University of Kansas, Lawrence, Kansas. This Article was initially presented at the 2016 American Society of International Law Research Forum in Seattle, Washington. The author thanks Leslie Johns and the other forum attendees for many helpful comments. 1 See, e.g., U.N. High Comm'r Refugees, Sibylle Kapferer, The Interface Between Extradition and Asylum, U.N. Doc. PPLA/2003/05 (2003), http://www.refworld.org/docid/3fe846da4.html.

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