In light of an ongoing international migration crisis – here with a spotlight trained on Germany and another on the United States (“U.S.”) – comprehensive and humane solutions have proven illusory and volatile. The number of displaced migrants recently rose to 120 million worldwide as of May, 2024.[1] The international discussion surrounding migration and national identity is cyclical and contingent on political climates; however, the tenor of anti-immigrant rhetoric is particularly aggressive and distracting, especially when heard alongside increasing nationalist rhetoric.[2] Both the left and the right in these two countries utilize immigration as a bludgeon, weaponizing the issue to best fit their respective political agendas in electoral cycles.[3]
Recent hostile and inflammatory political rhetoric about immigration, the lack of legislative action, and policies enacted only through executive initiatives, constitute constructive refoulement.[4] In brief, constructive refoulement is a term used to describe when a state makes life so difficult for an asylum seeker that they are forced to seek other options. The United Nations (“UN”) should explicitly recognize and condemn states’ growing role in constructive refoulement while implementing specific provisions and enforcement regarding constructive refoulement.[5] A comparative analysis between the U.S. and Germany reveals the political tensions within States regarding the mass migration crisis – as well as how immigration policy is recycled and “upcycled” to revisit and perpetuate draconian policy – and compounds to recreate and reinforce the current iteration of constructive refoulement.
The principle of non-refoulement is a vital but elusive principle of international law.[6] Under international human rights law, the prohibition of refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).[7] It states that, as a basic human right, migrants cannot be forced to return to their country of origin if they legitimately fear harm, persecution, or other fundamental human rights violations. Under Article 14 of the Universal Declaration of Human Rights and the United Nations Refugee Agency (“UNHCR”), a migrant may return to their country of origin under their own volition.[8] Several factors contribute to a migrant’s choice to return to their home country, and many international law scholars argue that some States develop certain policies to “incentivize” or “persuade” self-repatriation.[9] Scholars and international law theorists identify these incentivized returns as “constructive refoulement.”[10]
There is no clear nor uniform definition under international law for constructive refoulement. The definition of refoulement under the UN “Draft articles on the expulsion of aliens,” articulates the following guidelines against “disguised expulsion”: “(1) the forcible departure of an alien from a State resulting indirectly from an action or omission attributable to the State; (2) where the State supports or tolerates acts committed by its nationals or other persons other than in accordance with the law.”[11] In other words, a state must intentionally codify, tolerate, or omit direct action against migrants with the intent to induce expulsion, or tolerate unlawful acts committed by its nationals that induce expulsion.[12] These state actions can include restricting access to basic resources, limiting safeguards or public assistance, restricting employment or mobility, confining qualifications for relief such as asylum, and other measures that marginalize migrants and encourage self-repatriation.[13]
The U.S. and Germany are one of many key states setting the tone for addressing the migration crisis; both States have adopted some form of constructive refoulement policies.[14] According to the UNHCR, Germany is the third largest refugee-hosting country in the world; it has the highest refugee population of any other European Union (“EU”) state, with over two million refugees accounted for in 2023.[15] Similarly, as of 2022, the U.S. has a migrant population of over forty-three million, predominantly concentrated in four states: New York, California, Texas, and Florida.[16] Considering that both the U.S. and Germany play a major role in dictating the international rhetoric surrounding migration, it is key to analyze how each treats migrants and how both have succumbed to constructive refoulement policies.[17]
The first key element of constructive refoulement, upon entry in the U.S., are the inhumane conditions set in immigration detention facilities.[18] Immigration detention facilities operate under U.S. civil law, as opposed to criminal law.[19] Therefore, constitutional protections granted to detained individuals under criminal law do not carry over to migrants detained under civil law; there are no rights to a government-appointed attorney, no federal right to legal representation under the constitution, and all migrants can be held indefinitely.[20] Immigration and Customs Enforcement (“ICE”) dedicated billion-dollar contracts to several for-profit private prison corporations – such as GEO Group, CoreCivic, and LaSalle Corrections – in developing and maintaining detention facilities.[21] Immigration detention facilities are essentially identical to prisons, which violates multiple rules of international law regarding a migrant’s right to seek asylum.[22] Multiple instances of human rights violations, medical malpractice, sexual assault, and racism, reported by the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, further solidifies the inhumane treatment of migrants upon entry.[23] For example, in Louisiana’s Pine Prairie Detention Facility, a migrant was kept in solitary confinement for eight days after visiting the infirmary for panic attack symptoms.[24] This form of constructive refoulement gives the message to migrants that they are unwelcome, and, if they decide to stay after being released from detention, they will still be treated like a criminal.[25]
Over the past eight years, policies implemented by the U.S. executive branch constitute constructive refoulement, as they severely limit a migrant’s right to seek asylum.[26] For example, President Donald Trump’s “Remain in Mexico” policy during the COVID-19 pandemic utilized Title 42 – an obscure public health initiative – to drastically limit the number of migrants entering the U.S.[27] Over 600,000 migrants were deported from March of 2020 to April of 2021, and almost all were deported without the appropriate refoulement screenings required by U.S. and international law.[28] The Biden administration simply adopted and augmented the same policy, but with a more liberal cadence in implementing his January and May 2023 “Asylum Bans.”[29] Then, President Joe Biden narrowed the regulations even further by limiting other forms of relief, forcing migrants to remain in Mexico while awaiting the new and largely ineffective “CBP One” appointments.[30] This idea of parole in the U.S. immigration system severely limits the rights of migrants seeking asylum by exposing them to the dangerous conditions at the U.S.-Mexico border, with no relief or concrete policy reformation.
The U.S. federal government also tolerates or omits action toward the states implementing anti-immigrant policies, with the intent to criminalize and expel migrants.[31] For example, Texas governor Greg Abbott’s 2021 “Operation Lone Star” initiative charged thousands of migrants with misdemeanor charges, – such as trespassing–, in order to detain and deport them.[32] Under Texas law, defendants can be arrested on ranches, public parks, public transportation stations, etc.[33] Although the state must prove the migrants had notice that they were trespassing, it has still led to thousands of arrests under the guise of “public safety”.[34] As stated above, many migrants have significantly fewer rights to due process under Operation Lone Star, as Texas created a separate makeshift court system to process all arrests made under the program.[35] Although President Biden sent a cease-and-desist letter to Abbott in January of 2024, in an effort to stop impeding federal border control efforts in Texas, there have been no concrete steps on behalf of the Biden administration to dismantle the program.[36] This general complicity, in violation of fundamental international human rights, constitutes constructive refoulement.[37] This sends the message to migrants that they will be criminalized for seeking asylum.[38]
Compared to the U.s., Germany has recently had a more liberal and comprehensive track record when it comes to immigration policies, considering its conscientious adherence to human rights after World War II.[39] Although Germany’s liberal migration policy has been primarily centered around skilled workers and employment exchange programs, it has also been a major contributor to the rhetoric surrounding illegal immigration and asylum laws.[40] However, Germany walks a tightrope between leading the European discussion regarding migration and managing the internal contention led by its far-right parties.[41] For example, during the COVID-19 pandemic, Germany implemented a ban on deportations due to “environmental conditions, such as the climate and natural disasters” for Afghani migrants and prolonged the halting of deportations in 2021 after the Taliban took control of Afghanistan.[42] This adherence to non-refoulement policies was a tremendously progressive step in securing safety and security for migrants, in contrast with the United States’ Title 42 implementation during the pandemic.[43] However, in August 2024, tensions rose after a mass stabbing at a concert in Germany, where the primary suspect of the crime was a Syrian refuge.[44] Far-right rhetoric resurfaced astronomically, as Germany’s Alternative for Deutschland party (“AfD”) gained even more traction in the polls from capitalizing off of the anti-immigrant sentiment. After the stabbing, Thüringia’s AfD leader Björn Höcke posted the following statement on X to further stoke anti-immigrant rhetoric: “Germans, Thuringians, do you really want to get used to these conditions? Free yourselves; finally put an end to the wrong path of forced multiculturalization!”[45] Both moderate and leftist leaders alike in Germany appeared to support or stay silent to the call for mass deportations after the stabbing.[46] This rise and tolerance towards anti-immigrant rhetoric constitutes constructive refoulement, as it announces to migrants that they are viewed as criminals and terrorists by proxy if they originate from countries that pose a “terrorist threat” to Germany.[47]
An avenue to codify the prohibition against constructive refoulement on an international scale is contentious and elusive for several reasons. First, a state is entitled under international sovereignty to “require an alien to leave its territory when his or her continuing presence is contrary to the interest of the territorial State.”[48] Therefore, proving that a state has an obligation to humanitarianism beyond what is required by international law leads to deeper issues regarding national identity, economic well-being, and state sovereignty.[49] Since there is no clear and definite law prohibiting constructive refoulement, the UN must codify a clear provision that identifies guidelines for when a state commits constructive refoulement.[50] However, codifying the doctrine poses yet another challenge regarding where to draw the threshold between voluntary and involuntary repatriation.[51] A plethora of factors determine whether a migrant decides to return to their country of origin, and dissecting each element poses a challenge for determining the extent that a State induced their repatriation.[52] Additionally, determining the uniform guidelines of severity further complicates codifying the doctrine, as international tribunals would have to prove that a State’s policies or omissions were designed to make the individual repatriate, and that its severity effectively induced them to do so.[53] These challenges must be addressed in forming comprehensive and lasting international policies regarding refugee and asylum rights to ensure that all asylees can enjoy the benefit of asylum to the fullest extent of the law.
[1] Refugees and Forced Displacement, European Civil Protection and Humanitarian Aid Operations https://civil-protection-humanitarian-aid.ec.europa.eu/what/humanitarian-aid/forced-displacement_en#:~:text=120%20million%20forcibly%20displaced%20people,68.3%20million%20internally%20displaced%2 0persons (last visited Oct. 3, 2024).
[2] Anti-Immigrant, Southern Poverty Law Center https://www.splcenter.org/fighting-hate/extremist-files/ideology/anti-immigrant (last visited Nov. 10, 2024); Esme Nicholson, Rising anti-immigrant sentiment in Germany causes concerns in the country’s business community, NPR, (Aug. 27, 2024), https://www.npr.org/2024/08/27/nx-s1-5050746/rising-anti-immigrant-sentiment-in-germany-causes-concerns-in-the-countrys-business-community (last visited Nov. 10, 2024).
[3] Despite Sharply Different Immigration Rhetoric, Democrats and Republicans Now Have a Similar Approach to the Border, Migration Policy Institute, (Sept. 27, 2024), https://www.migrationpolicy.org/article/harris-trump-election-border, (last visited Nov. 10, 2024).
[4] Tilman Rodenhäuser & Padmaja Menon, Does international law prohibit ‘constructive refoulement’?, EJIL Talk!, (Jun. 20, 2024), https://www.ejiltalk.org/does-international-law-prohibit-constructive-refoulement/.
[5] Id.
[6] Id.
[7] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted Dec. 10, 1984, entered into force June 26, 1987) 1465 UNTS 85 (CAT) art. 3.
[8] G.A, Res. 217A (III), Universal Declaration of Human Rights, A/RES/217(III )art. 14. (December 10, 1948).
[9] See Rodenhäuser, supra, note 4.
[10] Id.
[11] Int’l Law Comm’n, Rep. on the Work of Its Sixty-Sixth Session, U.N. Doc A/69/10, Draft articles on the expulsion of aliens, with commentaries, art. 2(2), (2014).
[12] Id.
[13] See Rodenhäuser, supra, note 4.
[14] Germany, UNHCR, (2024), https://reporting.unhcr.org/donors/germany.
[15] Id.
[16] Mohamad Moslimani & Jeffrey S. Passel, What the data says about immigrants in the U.S. Pew Research Center, https://www.pewresearch.org/short-reads/2024/09/27/key-findings-about-us-immigrants/#:~:text=In%202022%2C%20most%20of%20the,%25)%20and%20West%20(33%25) (last visited Nov. 10, 2024).
[17] See Moslimani, supra note 16; see UNHCR, supra, note 14.
[18] See Altaf Saadi et al., Understanding US Immigration Detention: Reaffirming Rights and Addressing Social-Structural Determinants of Health, 22 Health & Hum. Rts. 187 (2020).
[19] Id. at 189.
[20] Id. at 189
[21] Id. at 192
[22] Id. at 189; See U.N. OHCHR, International standards governing migration policy: OHCHR and migration, https://www.ohchr.org/en/migration/international-standards-governing-migration-policy#:~:text=Respecting%20human%20rights%20means%20refraining,rights%20violations%20by%20other%20actors.
[23] Tom Dreisbach, NPR, Government’s own experts found ‘barbaric’ and ‘negligent’ conditions in ICE detention, (Aug, 16, 2023), https://www.npr.org/2023/08/16/1190767610/ice-detention-immigration-government-inspectors-barbaric-negligent-conditions (last visited Nov. 10, 2024).
[24] Exposing Systematic Abuse in ICE’s Jails, Robert F. Kennedy Human Rights (2022), https://rfkhumanrights.org/campaign/exposing-systematic-abuse-of-immigrants-in-ices-jails/.
[25] Dreisbach, supra note 23.
[26] Deepa Shivaram, What to know about Title 42, the Trump-era policy now central to the border debate, NPR, (Apr. 24, 2022), https://www.npr.org/2022/04/24/1094070784/title-42-policy-meaning, (last visited Nov. 10, 2024); International Rescue Committee, What do President Biden’s border policies mean for asylum seekers?, (Mar. 22, 2023),https://www.rescue.org/article/what-do-president-bidens-border-policies-mean-asylum-seekers, (last visited on Nov. 10, 2024).
[27] Shivaram, supra, note 26.
[28] Camilo Montoya Galvez,CBS News, Under Trump-era border rule that Biden has kept, few asylum-seekers can seek U.S. refuge, (Apr. 14, 2021) https://www.cbsnews.com/news/refugee-asylum-seekers-immigration-limit-trump-biden/, (last visited on Nov. 10. 2024).
[29] International Rescue Committee, supra, note 26.
[30] Id.
[31] See generally Eric S. Fish, Resisting Mass Immigrant Prosecutions, 133 Yale L.J. 1884, 1888 (2024) (discussing generally policies implemented to criminalize migrants crossing the border).
[32] Id. at 1891.
[33] Id. at 1926.
[34] Id. at 1926.
[35] Id. at 1933.
[36] Gabe Gutierrez and Summer Concepcion, Biden administration sends Texas cease-and-desist letter on border access, NBC News, (Jan. 15. 2024), https://www.nbcnews.com/politics/white-house/biden-administration-sends-texas-cease-desist-letter-border-access-rcna133939, (last visited on Nov. 10, 2024).
[37] See generally, Rodenhäuser, supra, note 4.
[38] Id.
[39] See generally Ryan Peterson, Be Our Guest, but Please Don’t Stay: A comparison of U.S. and German Immigration Policies and Guest Worker Programs, 14 TULSA J. OF COMP. & INT’L L. 87, 89 (2006).
[40] Id. at 102.
[41] See generally Id. at 102; Christian Edwards, AfD becomes first far-right party to win German state election since 1945, CNN World (Sept. 10, 2024) https://www.cnn.com/2024/09/02/europe/afd-germany-election-thuringia-saxony-intl/index.html (last visited Nov. 10, 2024).
[42] Camilla Scholss, Climate migrants – How German courts take the environment into account when considering non-refoulement,Völkerrechtsblog, (Mar. 3, 2021) https://voelkerrechtsblog.org/climate-migrants/ (last visited on Nov. 10, 2024).
[43] Id.; See also Shivaram supra note 27.
[44] Paul Kirby, Germany resumes Afghan deportations after mass stabbing, BBC, (Aug. 29. 2024) https://www.bbc.com/news/articles/cewlzkq5x74o (last visited on Nov. 10, 2024).
[45] Hanno Haustein, The AfD has stunned Germany – but this was no surprise victory, The Guardian, (Sept. 2, 2024), https://www.theguardian.com/commentisfree/article/2024/sep/02/afd-thuringia-saxony-germany-migration (last visited on Nov. 10, 2024).
[46] Kamil Frymark, Germany: controversy over border deportations, Centre for Eastern Studies, (Sept. 12, 2024), https://www.osw.waw.pl/en/publikacje/analyses/2024-09-12/germany-controversy-over-border-deportations.
[47] Id.
[48] Tilman Rodenhäuser, Pushed to the Breaking Point? The Prohibition of ‘Constructive’ or ‘Disguised’ Refoulement under International Law, 35 Oxford J. Int’l L., 419, 419 (2024).
[49] See Id. at 420.
[50] Id. at 421.
[51] Id. at 421.
[52] Id. at 439.
[53] Id. at 440.
