Non-Refoulement (and “Secretary Hildebrand”)
October 29, 2012 2 Comments
In 1077, the monk Hildebrand who had become pope and taken the name Gregory VII, excommunicated the German emperor, causing a collapse of his power, on the grounds that the latter had usurped the Church’s right to appoint, or “invest” bishops. The “investiture controversy” that followed lasted for well over a century, and ended in a sort of Pyrrhic victory for the popes, who destroyed the German imperial House of Staufen, but at the cost of empowering its rivals, especially the kings of France, who eventually took the papacy “prisoner” at Avignon. Meanwhile, the duel of pope and emperor triggered a lot of thinking and gave the Italian city-states the chance to emerge as autonomous republics in alliance with the papacy against the empire. In my view, the investiture controversy was a crucial episode in the rise of Western freedom. Prior to the mid-11th century, the papacy was weak and more often than not a pawn of either the Roman nobility or the German emperors. Hildebrand and a few colleagues were bold ideologues who spearheaded what historian Norman Cantor has called a “world revolution.”
Turning to the present, the UN is a bit like the early medieval papacy: it is weak and widely disdained, yet it has a sort of latent institutional legitimacy which could be a very powerful instrument in the right hands. A charismatic and ambitious secretary-general, with a powerful and popular ideology and a willingness to use all the material means and moral influence of his office to pursue it, could change the world. I suspect that in many areas of international law and policy, e.g., the trade regime, the international patent and copyright regime, bilateral and multilateral investment treaties, sovereign debt, travel/migration/visa regimes, and so on. There are multiple equilibria. For example, it might be in poor countries’ interests not to expropriate multinational corporations if no one else is doing it– why make oneself a pariah to the investment community?– but in their interest to do so if they could all agree to do so at the same time to punish an investment source country, at the exhortation of the UN, because they would get a reputation not as thieves but as good global citizens (while also pocketing the expropriated wealth). A brave and charismatic UN secretary-general– let’s call him Secretary Hildebrand– might give his agency teeth one of these days.
If so, one of the aspects of international law he might give teeth to is non-refoulement, the principle that it’s illegal to return a person to a country where they’re likely to suffer persecution or torture. (I approve, on natural law grounds. Knowingly to compel a person to go where they’ll be persecuted or tortured is tantamount to perpetrating persecution or torture.) A grad student, Jessica Rodger, wrote a thesis about it. I quote:
 During the last days of August this year, a humanitarian drama unfolded in the Indian Ocean. 433 asylum-seekers were stranded aboard a Norwegian freighter, the MV Tampa, which had rescued them from a sinking Indonesian ship. They had requested refugee status from the government of Australia when they entered Australian waters, but their request had been denied. Despite pressure from the United Nations High Commissioner for Refugees, the United Nations Secretary-General, and the international community in general, the Australian government stood by its decision. The crisis was only resolved when the governments of Nauru and New Zealand agreed to process the asylum-seekers, with Australia providing financial assistance and transport.1
 The Tampa incident brought home to many in the Asia-Pacific region a fact that those in Europe and Africa have long known. The issue of asylum-seekers and the granting of refugee status is an incredibly complex problem which the international community, as of yet, is not fully equipped to deal with. This paper will examine the international law regime which has been developed to deal with refugees. The cornerstone of this regime, and the focus of this paper, is the principle of non-refoulement. Non-refoulement is the idea that it is illegal for states to expel or return (“refouler”) refugees who have a well-founded fear of persecution. Over recent years this principle, and the refugee regime itself, has found itself increasingly under threat.
 An examination of some of the more recent situations of mass refugee flows, and also of the restrictive refugee policies being implemented by Western nations, will help to illustrate both the importance of the non-refoulement principle and the problems which the states themselves face when trying to live up to their international obligations. Both states and refugees often find themselves on uncertain legal ground when attempting to invoke the non-refoulement principle. The reason for this is that the parameters of the principle are not clearly defined. This has become especially problematic recently as refugee flows have increased and states have become more reluctant to accept asylum-seekers. States are therefore using the grey areas of the non-refoulement principle to get around their international obligations.
“Secretary Hildebrand” could exert pressure for the non-refoulement principle be written into countries’ laws, and encourage countries to punish non-compliance by making their trade policies, visa policies, and investment policies unfavorable to countries guilty of non-compliance. I suspect that any UN secretary-general famous enough to be a household name worldwide would have a good chance of forcing countries to make non-refoulement a reality.
I’m proud to report that the grandfather of a friend of mine forged a lot of documents, in the aftermath of World War II, so as to save people from repatriation to Stalin’s Soviet Union, where they would have been killed, and got them into the US instead. Such people are among history’s heroes. Schoolchildren should be taught to admire them.