[Asser in the media] Asser researcher León Castellanos-Jankiewicz: ‘US measures against migrants undercut international refugee law’

Published 21 July 2020

@ official White House photo 

In a recent interview with the Spanish language podcast Hablemos de Derecho Internacional, Asser researcher Dr León Castellanos-Jankiewicz has argued that the Trump administration is using the coronavirus pandemic for discriminatory purposes and continues to breach international obligations under refugee law. Castellanos-Jankiewicz called the policies, aimed at undocumented migrants on the border with Mexico, ‘aggressive’, and cautioned that the measures may severely undermine the system of refugee protection in the United States.

In the interview with Edgardo Sobenes, host of the podcast, Castellanos-Jankiewicz said that the current pandemic is being instrumentalized by the US government, and ‘discriminatory action against migrants is being cloaked as a health emergency response’. To outline this argument, the interview contains a detailed discussion of the international obligations of states under international refugee law, including the principle of non-refoulement. Pursuant to this guarantee, individuals cannot be returned to their country of nationality if they have a well-founded fear that their life, bodily integrity or fundamental rights would be threatened there.

Expedited removal of migrants

The measures issued by the Trump administration are aimed at removing migrants and asylum seekers through expedited procedures, thereby placing them at severe risk of kidnapping, torture, rape, and, ultimately, death. According to The Washington Post, the US government has been expelling border crossers to Mexico in 96 minutes on average, thereby breaching the non-refoulement obligations contained in Article 33 of the Refugee Convention of 1951 that bind the United States through its accession to the 1967 Protocol and customary international law.

In the interview, Castellanos-Jankiewicz explained that the US Centers for Disease Control and Prevention suspended the introduction of persons from designated countries, including Mexico, on 20 March in the interest of public health for one year with the possibility of indefinite extension. This comes on the heels of the cancellation of all deportation hearings in US immigration courts from March 18th for health and safety reasons. However, Castellanos-Jankiewicz pointed out that experts have not found a direct link between migration flows and an increase in public health risks.

Border violence and additional measures

Many migrants are being returned to Mexico regardless of their nationality, a country which saw a record 34,582 murders in 2019, according to the official count. This number surpasses the 33,743 homicides registered in 2018, which, until then, had been the most violent year on record since the ‘war on drugs’ was launched by former Mexican President Felipe Calderón in 2006.

The problem has been compounded by recent steps taken by the Trump administration before and during the pandemic to undercut migration. These include the Migrant Protection Protocols, also known as the ‘Remain in Mexico’ policy, a controversial practice through which the US has outsourced the custody of over sixty thousand migrants to Mexico. More than 1000 asylum-seekers subject to the Protocols have been victims of violent attacks in Mexico since the policy began to be implemented in January 2019.

Moreover, recent bilateral return agreements concluded with Honduras, Guatemala and El Salvador prevent migrants from coming into contact with the US judicial authorities that should determine their legal status pursuant to international rules. Finally, pursuant to the so-called third country asylum rule announced in 2019 by the Department of Homeland Security, asylum is systematically denied to persons who have failed to request asylum in transit countries. The third country asylum rule does not account for the harsh realities that migrants face in transit countries and US courts have recently found that it is incompatible with US federal law.

The podcast interview concludes with León expressing confidence in the international legal system of refugee protection: ‘The existing legal framework is robust enough to meet the new challenges we face. But decision-makers need to ensure that its application is impartial and fair.’

Listen to the full podcast here (in Spanish).

Further reading:

L Castellanos-Jankiewicz, ‘COVID-19 Symposium: US Border Closure Breaches International Refugee Law’, Opinio Juris, 3 April 2020.

L Castellanos-Jankiewicz, ‘La frontera blindada contra migrantes’, El Sol de México, 25 March 2020 (in Spanish).

León Castellanos-Jankiewicz (@leoncastjan) is a researcher at the Asser Institute for International and European Law, The Hague. He is part of the research strand Human dignity and human security in international and European law, which adopts as its normative framework a human rights approach to contemporary global challenges. León’s work focuses on human rights, transitional justice and minority protection.