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Author: Michael Dunne
Editors: Richard Dean Burns , Alexander DeConde , and Fredrik Logevall
Date: 2002
Encyclopedia of American Foreign Policy
Publisher: Charles Scribner's Sons
Document Type: Topic overview
Pages: 13
Content Level: (Level 5)

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Page 117



Michael Dunne

John Bassett Moore, the greatest American international lawyer of his age, wrote in his monumental Digest of International Law (1906): "No legal term in common use is perhaps so lacking in uniformity and accuracy of definition as the 'right of asylum.' " A century later, the same can still be said. Asylum, originally conceived as a right claimed by an individual fugitive, is now more readily regarded as a privilege abused by hordes of foreigners, self-styled refugees seeking to avoid the immigration restrictions of beneficent countries. The twentieth century, which began at the high point of intercontinental and peaceful migration, ended as intracontinental migration became increasingly salient and more and more contentious politically. Western and northern Europeans worried about "economic migrants" from the Balkans and the former Soviet bloc. From the Horn of Africa through the Great Lakes to the mouth of the Congo millions of people have been displaced through war and famine; South and Southeast Asia have seen comparable human exoduses. In the Western Hemisphere the debate has concerned the movement of migrants, over-whelmingly Spanish-speaking people, into the United States from the Caribbean and Central America. Thus to understand "asylum" in an American context we need to look at the historical evolution of the term as it has become entangled with the twin issues of immigration and refugee policy, both of which are themselves part of the larger pattern of domestic and foreign policymaking in the United States.


The practice of asylum (like the word itself) can be traced to ancient Greece, where particular altars and similar holy places offered sanctuary to fugitives, especially ill-used slaves. In the early Roman Republic the comparable custom protected aliens fleeing from other states, and though the practice was weakened during the first centuries of the Roman Empire, losing what little legality it originally possessed, the tradition that fugitives might seek at least temporary protection against those with greater physical power or apparent right reemerged with the establishment of Christianity. Churches were now designated as places of sanctuary, and the rights and duties of both fugitive and pursuer became formulated in increasing detail through imperial promulgations (such as the fifth-century Codex Theodosianus, books 9 and 16) and customary law. So it was for a thousand years in Europe until the Reformation began eroding such religious privileges—a process of abatement that continued until the late eighteenth century and the advent of the American and French revolutions.

As the authority of Rome and the Catholic Church declined, so conversely grew the power of the secular though usually Protestant state. For many centuries asylum had been understood as the granting of a privileged and protected area within a wider jurisdiction (the precincts of a church within the territory of a feudal lord). Since the seventeenth century, however, asylum has been understood as the creation by one jurisdiction (a "sovereign" state) of a privileged status for an individual from the reach of an opposing claimant, invariably another sovereign state whose "subject" the fugitive was. Thus, the common theme that links present-day notions and practices of asylum to those of the classical and premodern world is the special or "privileged" status of the would-be asylum-seeker vis-à-vis the state of original jurisdiction and the sought-after haven or sanctuary within a state of refuge.

Against this element of continuity, which emphasizes the individual's pursuit of safety from the executive and judicial power of one authority, has to be set the distinctive feature of asylum as it developed in the twentieth century, especially inPage 118  |  Top of Article the years since World War II. Now when the term "asylum" is used, attention focuses upon the mass movement of people. The involuntary migration of people, of minorities expelled or fleeing from a hostile majority, is nothing new: so it was for the Jews and Muslims after the Reconquista in Spain in the late fifteenth century and for the Huguenots in France following the revocation of the Edict of Nantes in 1685. In the twentieth century similar enforced population movements met the barriers created by the immigration policies of host countries. Thus, in the discourse of the early twentieth-first century, asylum became a term connoting mass migration, the laws and practices of host states in dealing with would-be immigrants, and the formal responsibilities of such states in the face of the legal rights and humanitarian demands of such alien refugees. The putative rights of a single individual are now overshadowed by the vision of those self-same rights exercised by thousands, even millions, of prospective incomers.

Given that the United States was rhetorically created partly as a haven for the oppressed; given the historical fact that the United States is a country of immigration ("a nation of nations"); and given the range of responsibilities that positive and customary international law now places upon the United States and all other sovereign states toward refugees, the issue of asylum has unsurprisingly become intensely debated and highly controversial. Even so, one element may be briefly—and relatively uncontentiously—explicated. Paradoxically, it is the topic that was once regarded as synonymous with asylum tout cour, namely diplomatic asylum.


In the course of the rise of the modern state system, diplomats became invested with various privileges and immunities, part and parcel of the convenient but necessary fiction that ambassadors and their entourage occupied within their country of posting (the "territorial" sovereign) an enclave of their own sovereign power. Thus persons and property of the "sending state" enjoyed within the protected zone customary (so-called extraterritorial) rights and were exempt from the normal reach of the executive and judicial power of the host or "receiving state," to cite the language of the two Vienna conventions of 1961 and 1963 governing diplomatic and consular practice, respectively. Accordingly, an embassy could by custom extend the protection of its premises to fugitives from the summary justice or even lynch law of the host country. (Warships and merchant vessels were treated similarly.)

This tradition of diplomatic asylum became particularly strong in Latin America during the nineteenth century—a reflection of the political violence that frequently accompanied regime changes within the continent. By custom such asylum was not extended to ordinary criminals ("persons accused of or condemned for common crimes") but rather to "political offenders," those refugees whose only offense, it was asserted, lay in their beliefs. To regulate this tradition, in the first half of the twentieth century the Latin American republics negotiated a series of conventions (Havana in 1928, Montevideo in 1933, Caracas in 1954), though not all the countries ratified the results. The Caracas convention followed a bitterly fought dispute between Peru and Colombia before the International Court of Justice at The Hague. In two connected decisions, the Asylum and Haya de la Torre cases, 1950–1951, the court held that the right of diplomatic asylum did not exist through customary international law but, if at all, only by virtue of explicit bilateral or multilateral treaties, or through the established and reciprocal action of both countries. (Ironically, in the absence of a legal solution, the court urged the parties to resolve their dispute by negotiations and compromise, in other words, through what in lay terms would be called diplomacy.) Surveying the history and jurisprudence of diplomatic asylum, sub voce the scholar and advocate Ian Brownlie writes that, despite the examples drawn from "Latin American regional custom, … it is very doubtful if a right of asylum for either political or other offenders is recognized by general international law."

The United States, like other major powers, has generally disapproved of the invocation of diplomatic immunity for fugitives. But not long after the eventual resolution of the Colombian-Peruvian case, the U.S. embassy in Budapest granted diplomatic asylum to the Roman Catholic primate of Hungary, Joseph Cardinal Mindszenty, as the Americans registered their profound opposition to the Soviet repression of the Hungarian uprising in October–November 1956. This episode—an exception to normal U.S. policy—was a deliberate Cold War tactic and has to be seen as part of a larger pattern of American diplomatic and legal responses to the political and ideological challenges of communism. At the end ofPage 119  |  Top of Article the Korean War (1950–1953), for example, the U.S.–led United Nations negotiators offered asylum en masse to North Korean and mainland Chinese prisoners of war who did not wish to be repatriated to their home countries.


Diplomatic asylum, understood as a particular form of sheltering fugitives, may be seen as the correlative to extradition, the mainly executive but also partly judicial process whereby an escapee is denied asylum (whether territorial or extraterritorial) and surrendered by one sovereign power to another for trial and punishment of criminal offenses. The usual protections for political offenders have been part of the custom and treaty law governing such rendition since the 1830s, the pioneering work of French, Belgian, and Dutch jurisconsults and legislators who reversed the pre-French Revolution tradition of surrendering political opponents and harboring ordinary criminals. In the United States, the paradigmatic act of 1848, "for the apprehension and delivering up of certain offenders," limited U.S. extradition practice not by category of alleged offense but through reciprocal international treaty. (The United States in 2001 had extradition treaties with more than one hundred other states.) As for multilateral extradition treaties, once again the republics of the Western Hemisphere led the way, beginning with the somewhat abortive treaties of 1889 and 1902, the distant precursors of the 1981 Inter-American Convention on Extradition, which explicitly protects "the right of asylum when its exercise is appropriate." There the burden of the proviso is to protect "political" fugitives specifically, though not exclusively. But, as the U.S. Departments of Justice and State both glossed apropos a typical extradition treaty with Jordan, "political offense" is a category frequently used but never defined in such treaties.

Until the post–World War II period the most controversial example of the political exemption for asylum-seekers was the refusal of the Dutch authorities to surrender Wilhelm II of Hohenzollern to the victorious Allies for trial as a war criminal under the terms of the Treaty of Versailles (article 227), which had arraigned the former kaiser for his "supreme offence against international morality and the sanctity of treaties." Since World War II and particularly the establishment of the ad hoc Nuremberg and Tokyo International Military Tribunals for the trial of war criminals (1945–1948), various multilateral instruments have diminished such residual protections, allusively so in the exhortatory Universal Declaration of Human Rights and specifically in the Convention on the Prevention and Punishment of the Crime of Genocide, both adopted by the UN General Assembly in December 1948. Controversies that have remained have usually been not for substantive reasons but rather on procedural grounds, for example grants of domestic immunity, the forceful seizure (kidnapping) of the accused, and unfitness to plead, the latter being argued in the high-profile case in 1998–2000 of the former president of Chile, General Augusto Pinochet, whose case was taken on appeal against extradition to the highest court in England, the House of Lords. (In this instance the executive rather than the judicial branch—an uncertain distinction in the British constitutional system—released Pinochet from extradition to Spain.)

Here again, American and European attitudes have been similar: "forcible abduction" is permissible, provided the terms of any extradition treaty are applicable; such was the decision in United States v. Verdugo-Urquidez (1992). Undoubtedly the most famous modern case in which kidnapping was ruled to be inconsequential to the prosecution of inter alia "war crimes" and "crimes against humanity" was that of the German Nazi leader Adolf Eichmann, which was decided on appeal before the Israeli Supreme Court in 1962. In this case the judges, as they put it, "rel[ied] on a long array of local, British, American and Continental precedents" to deny the appellant "asylum" in his former refuge of Argentina.

In the federal system of the United States extradition between states rests upon article 4, section 2, of the Constitution, requiring that "A Person charged in any State with Treason, Felony, or other Crime … shall … be delivered up" on demand by the applicant state. Significantly, the following paragraph implicitly invalidates the competence of any state to offer asylum and hence possible freedom to a fugitive slave—an interpretation borne out by the provisions of the contemporaneous Northwest Ordinance. (Congress passed a combined fugitive slave and extradition act in 1793.) This conjunction of principles in the federal Constitution acts as a valuable reminder of the intimate relationship between law and politics in American history, the permeability of the socalledPage 120  |  Top of Article domestic and foreign spheres, and that general and particularly universal statements of rights—what we would today call "human rights"—must always be seen in their historical and specific context. The defense of slavery by the signatories of the Declaration of Independence is the locus classicus of this discordant interplay, and the invocation of this same Declaration by the delegates to the Convention of Seneca Falls in 1848 likewise confirms the general rule, with this latter meeting on American women's rights itself deriving from the worldwide antislavery campaign.

Slavery and particularly the slave trade were a constant irritant in Anglo-American relations from Jay's Treaty of 1794 (which provided for limited extradition for certain felonies—hence conditional denial of "asylum"—between the two countries) through the War of 1812 and the abolition of slavery within the British empire in 1833 until the time of the Civil War. In the case of the slave mutiny upon the brig Creole in 1841, law officers in England ruled that the colonial authorities in the West Indies could not surrender the fugitives to the U.S. government without specific parliamentary approval. (There was also the separate though weighty matter of the slaves' gaining freedom by virtue of their arrival within the jurisdiction of the English courts—an issue that had pre-independence roots in the ground-breaking Sommersett case of 1772.) Extradition, in other words, though an executive function of government, required in this case statutory authority—a process of legitimation that came most notably through the first (British) Extradition Act of 1870, with its protections for political refugees.

The negotiation of the Webster-Ashburton Treaty of 1842 between Britain and the United States helped to resolve the legacy of the Creole dispute while agreeing on the terms of nonpolitical extradition. But the difficulties between American and British jurisdictions and jurisprudence over the definition of political as distinct from criminal ("terrorist") offenses reemerged with the resumption of the Irish Troubles in the late 1960s. Yet the two countries are not unique in their differences. As Guy Goodwin-Gill authoritatively observed: "International law provides no guidance on the substance of the concept [political offence exception], other than its outermost limits." Inside the United States, the early federal legislation on interstate rendition was interpreted by the U.S. Supreme Court in Kentucky v. Dennison (1861) as merely declaratory and thus discretionary. It remained until long after the abolition of slavery for the Supreme Court (Puerto Rico v. Branstad, 1987) to rule that state authorities had no discretion on rendition. Interstate asylum, in other words, did not exist.


Diplomatic and territorial asylum (the latter term employable even in an interstate context) are concepts with a largely nineteenth-century resonance, privileges understood as benefiting individuals. Since the early part of the twentieth century, however, asylum has become linked with the fate of groups. Thus, to understand U.S. asylum law as currently practiced and debated, three different chronologies or narratives must be brought together. The first is the pattern of formal U.S. immigration legislation and executive action since the 1870s, the second is the contemporaneous and related history of international migration, and the third is the development of an international regime governing refugees and asylum-seekers, particularly in the years since World War II.

Whatever the proper interpretation of the discretionary power or mandatory obligations of the individual states in interstate rendition, the exclusive power of Congress over the admission and deportation of aliens is beyond dispute. Such was the import of two groups of cases the Supreme Court adjudicated in line with article 1, section 8, of the Constitution: the so-called Passenger Cases of 1849 and 1876, followed by the notorious half dozen Chinese Exclusion Cases from 1884 to 1893. This was the jurisprudential context in which Congress drafted immigration policy along explicitly racial lines and thus set in place for eight decades one of the three basic categories of inclusion and exclusion of aliens (and ultimately their safe refuge and asylum). In the first phase, from the Chinese Exclusion Act of 1882 until the Immigration Act of 1917, Asian immigration was severely restricted. Meanwhile, as increasing numbers of immigrants came from southern and eastern Europe, Congress reacted in the 1920s with two laws, the (Temporary) Quota Act of 1921 and the (Johnson-Reed) Immigration Act of 1924. Together these two laws placed for the first time a descending ceiling over the annual number of immigrants, so that the aggregate of permitted immigrants dropped from a pre–World War I average of just under one million down first to approximately 360,000 and then to 150,000.Page 121  |  Top of Article Within this shrinking total the ratio of new to old immigrants was also drastically reduced, with the countries of the old immigration being eventually awarded more than four-fifths of the final quotas: Germany, for example, was allocated some 26,000 visas, versus Italy's 6,000. The unprecedented "national-origins" or "quota" system, which required entry visas to be issued in the country of application, came fully into operation in 1929. These basic formulas set American immigration policy until the 1960s, not least in excluding from the calculations those born in the Western Hemisphere, mainly Mexico and Canada, who would form a growing number relatively and absolutely of the "non-quota" immigrants.

As immigration into the United States from Europe was severely limited under the legislation of the 1920s, migration within Europe and Asia Minor took on a new importance during and immediately after World War I. Hundreds of thousands of Armenians, Bulgarians, Greeks, Russians, and Turks were displaced as so-called nation-states succeeded former multinational empires in eastern Europe and the Near East. Under the new League of Nations regime, negotiated population transfers (notably between Greece and Turkey), the protection of remaining minorities (in Poland and Romania), and the relief of indigent refugees (Bulgaria, Czechoslovakia, and Yugoslavia) became international responsibilities, with League of Nations bodies such as the High Commission for Refugees and the International Labor Office (predecessors of today's Office of the United Nations High Commissioner for Refugees and the International Labor Organization, respectively), individual countries (France particularly), and nongovernmental agencies such as the Red Cross supplying various kinds of help. The legacy of these different responses would be most clearly seen during and shortly after World War II, when the United Nations, with the United States in the leading role, assumed a comparable role in meeting the needs of the latest generation of refugees.

If the 1920s was the decade of a new international responsibility for displaced persons, then the 1930s and the first half of the 1940s produced forced migrations and displacement on a scale not seen for centuries in Europe and Asia. (Events in China had no effect upon U.S. refugee policy; but experts calculate that the onset of all-out war by the Japanese in 1937 led to the flight of tens of millions of Chinese inland from the coastal regions toward the north and west.) Figures capture the horror rather than express precisely the enormity of the human suffering: an estimated minimum of 40 million Europeans were displaced in two main stages, first under the Nazis and their allies until the failure of Operation Barbarossa, the German invasion of the Soviet Union, in 1942–1943. The war was followed by a decade of "ethnic Germans" (Volksdeutsche) removing to the defeated fatherland and Slavs migrating mainly eastward and within the enlarged Soviet Union and its satellites (especially the Ukraine and Poland). Despite calling an intergovernmental conference at Evian, France, in July 1938 on the refugee crisis, President Franklin D. Roosevelt provided no leadership at home to effect changes in immigration policy to permit extra-quota places for victims of Nazi persecution.

After the net emigration that characterized the first (Great Depression) half of the 1930s came a net immigration in the second half of the decade and early war years that saw a maximum of 250,000 refugees enter the United States within quota. The end result was the lowest absolute decennial total admission of immigrants into the country since the census period 1820–1830, when 143,000 persons had arrived on U.S. shores. (The period 1831–1840 saw 600,000 immigrants, while in 1931–1940 it was just 528,000.) Thus, despite the arrival of some famous asylum-seekers (Hannah Arendt, Albert Einstein, Thomas Mann) into the United States from the Europe of the impending Holocaust, numerically the impact of such refugees was minimal. Indeed, Eichmann argued in his own defense that the "final solution to the Jewish question" was facilitated by the general resistance to Jewish immigration—a claim corroborated by contemporary American opinion polls.


The interwar years had shown no sign of the adaptation of the immigration laws to cope with asylum-seekers en masse: such is the message authoritatively recorded in the 1945 analysis by Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States. The legacy of national quotas in U.S. immigration law lasted beyond the weakening of the anti-Asian nativism that had been at work since the 1880s, the latter hostility mitigated and overlapping in the short term with more overtly political criteria for exclusion.

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The Immigration and Nationality (McCarran-Walter) Act of 1952 exemplified this more recent mixture in a tense Cold War context, as did the earlier Internal Security (McCarran) Act of 1950, which also dealt, inter alia, with alien exclusion. Yet there was a wartime hint of the remaking of U.S. immigration policy by different criteria from the national-origins ideals of the 1920s, when in 1943 the total prohibition against Chinese immigration was minutely but significantly eased as part of the American conciliation of Nationalist China, one of the Big Five in the wartime anti-Axis alliance. Two years later President Truman by executive order gave priority to "displaced persons" in the allocation of European quotas—though within the existing national totals. Only with such measures as the Displaced Persons Acts of 1948 and 1951 and the Refugee Relief Act of 1953 were the annual quotas actually increased, at first simply by amortizing initial excesses against correspondingly reduced later totals. (An exception was made for the entry of non-quota wives, husbands, and orphans.) From 1945 until 1960 some 700,000 people were admitted to the United States under various "refugee-escapee" exemptions and programs—the beneficiaries of a deliberate Cold War policy directed against the Soviet bloc and communism in general by encouraging disaffected emigrants.

It required the more liberal, 1960s civil rights atmosphere to eliminate (via the landmark 1965 Hart-Celler Immigration Act) the ethnically coded national-origins system as the basis for the selection of immigrants. Yet quotas remained under the 1965 act, as they had under McCarran-Walter. But now they were absolute, limited to 20,000 for any one country, while for the first time immigration from within the Western Hemisphere was restricted to 120,000, effective in mid-1968, within a global maximum set initially at 290,000. (The 20,000 per country limit was extended to the Americas in 1976, and in 1978 the hemispheric subtotals were aggregated to 290,000 worldwide.) Within this changing ideological and numerical framework exceptions would be made for refugees, who under the new seven-category "preference" system of the Hart-Celler Act would technically occupy the last and smallest category at a maximum of 6 percent of the total for extrahemi-spheric entrants: an estimated 10,200, who would also include victims of natural disasters. (The refugees were expected to come from the Soviet bloc and the Middle East.) Finally, an unspecified number of refugees could be "paroled" into the United States by the attorney general—in other words, given a conditional right to reside despite their irregular status. This latter provision gave statutory form to the situation after the Hungarian uprising, when the great majority of the 38,000 refugees were initially admitted through the attorney general's parole power.

Edward P. Hutchinson, concluding his classic account Legislative History of American Immigration Policy with an analysis of the Hart-Celler Act, emphasizes the interconnection of legislation since the formative post–Civil War Immigration Act of 1875 with both the older tradition of political and religious asylum and the development of a post–World War II refugee regime by the U.S. government. He then blends all these factors together under the rubric "refugee asylum" as an "element of immigration law and policy." Indeed, at least half a dozen legal instruments between 1875 and the consolidating Immigration Act of 1917 contained provisions protecting political and religious freedoms—what we would call offering "political asylum"—while simultaneously barring racial undesirables. Thus, like other authorities Hutchinson endorses the argument that "asylum" in its more technical sense has to be understood within the wider context of the roads and obstacles to would-be migrants to the United States. As Colin Harvey perceptively writes, "Law is Janus-faced, it both coerces and enables. Refugee law … both excludes and includes."

The mutation of the quota system from its 1920s ethnic bias and the introduction of an allotment for refugees were two innovations in the Hart-Celler Act. (For all its ideological importance, the law was technically an amendment to the 1952 Immigration and Nationality Act.) Conversely, a more recent tradition was continued outside the provisions of Hart-Celler, with asylum privileges extended ad hoc sometimes by formal legislation and at other times by presidential action. This twin-track approach has characterized federal policy since the 1940s, despite at least six major general laws passed by Congress in the succeeding decades. Yet other factors have also been involved, the practical force of which is difficult to quantify but which have been important at a rhetorical, symbolic level.

One example is the role of the United States as the most powerful country within the United Nations and, therefore, inescapably identified with exhortatory UN pronouncements, even when the United States has either opposed or not signed the relevant multilateral treaties, later failed to ratifyPage 123  |  Top of Article such binding instruments, or qualified ratification with terms seriously limiting the resultant obligations—a three-way method of American conduct traced by scholars such as David Forsythe, Louis Henkin, and Natalie Kaufman. (The Genocide Convention, which provided for extradition and voided pleas of "political crimes," was signed by the U.S. government in 1948, submitted to the Senate in June 1949, and finally received conditional consent from the Senate almost four decades later, in 1986.) Thus, the years since World War II show a pattern of complicated adjustments to U.S. immigration policy (which ultimately determines the legal entry for refugees and asylum-seekers) alongside an international rhetoric and the growth of a legal regime governing refugees and asylum-seekers, both of which are significantly shaped by the United States but not necessarily put into practice within its own borders.


The Hart-Celler Act became fully operational in 1968, by coincidence the Human Rights Year celebrated by the United Nations to mark the twentieth anniversary of the Universal Declaration of Human Rights (UDHR). Endorsed by the UN General Assembly in December 1948, the UDHR echoed those provisions of the 1945 UN Charter that explicitly "reaffirm faith in fundamental human rights," stating, in the precise formulation of the UDHR article 14: (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution; (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Given the crucial role of the United States in the establishment in 1945 of the United Nations Organization—the multifaceted structure that gave institutional and eponymous form to the U.S.–led wartime alliance initially created by twenty-six states in January 1942 "to preserve human rights and justice in their own lands as well as in other lands"—there might seem no possible exception to an American obligation to provide asylum to asylum-seekers. Yet a number of factors show the weakness of this deduction. At the most general level the UN Charter (chapter 1, article 2) forbade any UN "interven[tion] in matters which are essentially within the domestic jurisdiction of any state." The government of the United States, both the Congress and the executive, had traditionally regarded immigration (under the broader heading of the admission of aliens) as a matter determinable solely by the United States itself—a claim of national prerogative amply demonstrated in the senatorial and wider public debate in 1945–1946 over the conditions for American adherence to the UN Charter and Statute of the International Court of Justice. Furthermore and specifically, even the terms of the nonbinding UDHR simply expressed traditional legal practice: the right of an individual to seek asylum was not disputed, but it remained for the host state or sovereign to grant asylum so that it might then be enjoyed—a qualification repeated passim in the Declaration on Territorial Asylum adopted by the UN General Assembly on 14 December 1967. Moreover, even the granting and enjoyment of so-called diplomatic asylum was not unconditional. Such considerations must be borne in mind when we read the later resolution of the General Assembly (24 October 1970) that the UN Charter precepts "constitute basic principles of international law."

As for refugees and would-be asylees, here the UN formulated two documents detailing international obligations toward those in need of such "social and humanitarian" protection: the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Although "asylum" is a term absent from the body of both texts, the respective preambles and the context of the documents make the identification clear. The United States became a party to both instruments by signing and ratifying the later protocol, the purpose of which was to remove the temporal and geographical limits of the convention. Aside from the shift of UN (and American) concern from postwar Europe to Cold War Africa and Asia, the accession of the United States to the Refugee Protocol was yet another sign, paralleling the Hart-Celler Act, of the erosion of overt racialism in foreign policymaking. In refugee law, the convention and later protocol established an important textual commitment. In the formula of the convention, article 33 (subsumed in the protocol, article 1): "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

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This paragraph gave multilateral treaty form to the principle of nonrefoulement (from the French refouler, to turn back, expel)—the obligation of a state not to expose a refugee within its territorial limits or under its jurisdiction to expulsion into the hands of former or likely persecutors. To this particular commitment two rather different qualifications can be made here. First, the convention's governing condition was the "well-founded fear of being persecuted" in the mind of the refugee, phrasing that would allow judges and officials of the host state to consider a mixture of subjective and objective factors in determining entitlement to asylum for the supplicant. Second (as noted by Hannes Tretter in International Human Rights), the wording left unanswered the question "how human rights standards and principles of humanitarian law could be guaranteed to war-refugees or refugees fleeing on economic and social grounds, considering … that neither the Convention nor its Protocol offers protection for them." While the United States would become a (conditional) signatory to a number of other human rights treaties—though not, perhaps paradoxically, the 1969 American Convention on Human Rights within an inter-American juridical regime—these parameters of nonrefoulement and the selective extension and denial of asylum to economic, social, and political mass-migrants would constitute part of the framework of U.S. immigration policy in the last third of the twentieth century. (The American Convention on Human Rights must be distinguished from the American Declaration of the Rights and Duties of Man, in which article 27 speaks of the right "to seek and receive asylum," adopted at the Ninth International Conference of American States at Bogotá in 1948, where the Charter of the Organization of American States was approved.)


Since the passage of the Hart-Celler Act in 1965, four major U.S. laws have been written regulating immigration, and each has contained provisions governing the treatment of refugees and asylum-seekers. In chronological and substantive precedence was the Refugee Act of 1980, the first omnibus refugee law ever passed by Congress. Prompted by the acute refugee crisis following the Vietnam War and the atrocities of the Khmer Rouge in Cambodia as well as the long-term problems of Cuban emigration, the legislation enlarged the annual permitted total of refugees (defined along the lines of the 1967 UN protocol) from 17,400 to 50,000, within an overall raising of the immigration ceiling from 290,000 up to 320,000. This figure of 50,000 would be reviewed after three years. Meanwhile, increases for "grave humanitarian" reasons would be possible—if agreed to by the president and Congress, who would also determine the initial annual per-country allocation. (Refugee admissions during the 1980s averaged twice this rate.) Five thousand places within the refugee total were assigned specifically for asylum-seekers, but within a very short time the applications ran at ten times this number. (In later years acceptances for asylum status would move toward 10,000 per year.) Individual states would be reimbursed for the costs of both the future refugee and past asylum programs. Those arriving with refugee status, which is accorded outside the United States, would be permitted to convert to "permanent resident alien" status within one year and thus embark on the road to citizenship.

Three specific features of the act were politically significant: the twenty-year-old Cuban refugee program would be phased out, the previous requirement (a legacy of the 1950s) that refugees hail either from the Middle East or communist regimes was ended, and a proviso was added that, in following the UN definition of refugees, future policy would be guided by the victims' "special humanitarian concern to the United States"—a qualification for selective U.S. engagement. Thus the 1980s would show far more admissions from unfavored regimes in eastern Europe than from favored regimes in Latin America—prima facie evidence of the political definition of refugees and the political selectivity of asylum grants. As a result of the 1980 act, total immigration under the refugee and asylee categories rose to an exceptional peak of 140,000 in fiscal year 1991 (including 23,000 asylees). The figure dropped back to 54,000 in 1998 from 112,000 in 1997, the latter aggregate figure being more representative of the 1990s as a whole.

The next law, the Immigration Reform and Control Act of 1986 (IRCA), was primarily designed to regularize undocumented Hispanic aliens ("illegals" who lacked or had abused appropriate entry visas) by a double tactic of penalizing employers and offering amnesty to those who hadPage 125  |  Top of Article evaded existing immigration regulations. While these aspects of the IRCA harked back to the labor-control elements of earlier immigration legislation (notably the bracero program for migrant Mexicans, 1942–1964), other sections of the law eased the plight of Cuban and Haitian "illegals" who were regarded as political rather than economic victims. Legislators and commentators agreed that the IRCA was designed as the first in a two-stage revision of existing procedures, and four years later Congress more systematically revised the Hart-Celler Act. Under the Immigration Act of 1990, visas for specified labor skills were increased almost threefold (to 140,000) at the relative cost of family-reunification within a larger aggregate of immigrants (up from 500,000 to 700,000, then dropping to 675,000). Asylum-seekers and refugees, if qualified, were to be admitted outside of quota limits: an estimated 131,000 in the first year with an allocation of 10,000 for asylees. Furthermore, the attorney general was given powers to widen the categories (and thus the potential numbers) of aliens in need of "temporary protected status," such as victims of natural disasters and civil wars.

The fourth law in this important quartet was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Beginning its legislative life in the Senate and House as bills to reduce legal immigration as well as to police illegal immigration, the final product in an all-purpose appropriations measure was eventually designed mainly to minimize the numbers, penalize the presence, and expedite the expulsion of "illegals" in general. The annual number of legal immigrants approached pre–World War I highs—against a host population almost three times larger. Fiscal year 1993 was the decade's peak for "new arrivals." Even so, the 1996 act treated asylum-seekers somewhat ambivalently. The grounds for claiming persecution were enlarged to include state-enforced family planning (most obviously in the People's Republic of China), yet the numbers so protected were arbitrarily limited to one thousand per annum.

An authorized speed-up in processing and a later actual increase in rejecting asylum claims, together with limitations on the judicial review of rejections, were part of a growing general hostility to such claimants. (There were comparable immigrant increases and legislative and bureaucratic responses in the European Union.) Asylum applications were running at an annual average of 140,000, with almost four times that number unresolved. This huge figure was mainly due to the acceptance by the INS of an out-of-court settlement of a lawsuit, American Baptist Churches v. Thornburgh (1991), in which the churches charged that INS asylum policy toward Central American appellants during the 1980s had been driven by political priorities (hostility to the left-wing Sandinistas in Nicaragua and opponents of the U.S.–supported Salvadoran and Guatemalan governments) rather than disinterested application of the refugee criteria. More generally, under the new law the discretion of the executive to parole fugitives en masse would be inhibited by the offset of these parolees against the permitted totals for legal, "documented" immigrants. This particular provision was less the legacy of the Reagan administration in Central America than the particular case of "boat-people" from Cuba and Haiti.


From the early 1960s Cuba has played a peculiar role in the making and conduct of U.S. refugee policy. Since Havana and Washington have periodically agreed to limit Cuban emigration and immigration, both governments have conspired to deny asylum to actual and would-be refugees. Nowhere does the interplay between the domestic and foreign spheres, or the practical limitations of multilateral commitments, appear more starkly than in the control of exit and entry between the two countries. (Article 13, section 2, of the Universal Declaration of Human Rights, for example, defines the right to leave and return to one's country as fundamental; but Cuba is not a party to the Refugee Convention or Protocol.) Given the level of official U.S. rhetoric about the denial of human rights in Cuba, the implementation of selective admission for Cuban refugees must be seen as politically inspired.

There have been three notable stages in the pattern of U.S. immigration policy toward Cuba. For two decades following Fidel Castro's assumption of power in 1959, Cuban émigrés in the United States enjoyed a privileged position as refugees not subject to the prevailing immigration regulations. The legislative pinnacle was the Cuban Adjustment of Status Act of 1966 (CASA), which permitted some 130,000 Cubans living mainly in Florida and New Jersey to become "permanent resident aliens … lawfully admitted for immigration" and thus start on the road to citizenshipPage 126  |  Top of Article (and, in some states, register their professional qualifications to obtain appropriate employment). Having come as refugees, these beneficiaries of CASA had originally entered under visa waivers or as parolees (at the ultimate discretion of the attorney general), and the Hart-Celler Act had just outlawed such change of status.

The second significant chapter in the Cuban refugee story began in 1980, when as many Cubans left the island in five months as had benefited under CASA. More dramatically—and with much greater political effect—these fugitives, many encouraged by Castro himself in the Mariel boat lift episode, were joined by some 35,000 fugitives from nearby Haiti in a common armada of fragile and tiny boats sailing toward Florida. The 1980 Refugee Act had just been passed; but neither group of bolseros had been formally classified as refugees, which meant that neither they nor the host communities (Dade County and Greater Miami) would be eligible for earmarked federal funds such as Medicaid and Aid to Families with Dependent Children for individuals and a support program for school districts.

As in 1966, Congress and the president agreed on a solution, in this case to accord refugeePage 127  |  Top of Article status to the fugitives—thus repeating the process that had brought almost a million Indochinese refugees into the United States. Through the 1980s the numbers of fugitives from Cuba fell back to the hundreds, then in the early 1990s, as a consequence of the deep economic crisis following the collapse of the Soviet Union, the numbers rose to thousands, with almost 40,000 intercepted by the Coast Guard and other agents in 1994 alone. Such numbers (all potential beneficiaries of CASA) led to the 1994–1995 U.S.–Cuban compromise, whereby Washington agreed to accept 20,000 refugees while Havana would seek to discourage emigration. Those Cubans denied entry (even after an appeal along the terms of the Refugee Act of 1980) were to be repatriated without reprisals. Complicated in its details (which included using the U.S. naval base at Guantánamo Bay on Cuba as a transit camp, operating the parole provisions of CASA to increase the numbers of legal permanent residents, and instituting a "visa lottery" to bridge the gap between applicants and available places), Washington's Cuban immigration policy of the 1990s confirms the general point that asylum, despite the formidable bureaucratic and judicial framework in which it operates, has been employed in practice as a means of promoting broader foreign policy goals while responding to domestic lobbies.

A similar lesson may be drawn from U.S. policy toward Haitian refugees. During the 1980s more than 20,000 Haitian boat people were interdicted (arrested) by U.S. officials at sea—and only one in a thousand was permitted to make an application for asylum. Although the UN High Commissioner for Refugees and the Organization of American States Inter-American Commission on Human Rights demurred, the U.S. Supreme Court in 1993 (Sale v. Haitian Centers Council Inc., et al.) upheld 8 to 1 the authority of the executive effectively to refoul such migrants despite the explicit commitments of the 1951 Refugee Convention and 1967 Protocol and the provisions of the 1980 Refugee Act. Supporters of the interdiction policy, begun in earnest by President Ronald Reagan and continued through Bill Clinton's presidency, argued that the Haitians were "economic migrants" instead of political refugees, while some critics, particularly from the Congressional Black Caucus, detected racism at work. (The 1980 post-Mariel settlement had been less favorable to the Haitian refugees.) But there was another echo of the Cuban saga: in 1998 the Haitian Refugee Immigration Fairness Act, modeled on CASA, was passed by Congress to allow more than 40,000 Haitian asylum claimants or parolees to adjust to "legal permanent residence"—while the policy of interdiction continued.


Tracing the pattern of executive and congressional actions in the twentieth century bears out the general point made by Joyce Vialet, an authority on the law and history of U.S. immigration, that "the distinction between immigrants and refugees, unheard of during the mass migrations of the 19th century, … developed in the wake of World War II, primarily as a means of reconciling our traditional ideal of asylum with restrictions in the immigration law." With the designation of the "Asiatic barred zone" in the 1917 act, tightened by the Johnson-Reed Act of 1924, the barriers to immigration from Asia and the Pacific were made virtually impregnable. In the 1920s the former "open door" was almost closed to Mediterranean Europe, the Balkans, Asia Minor, and the Black Sea region, where the "push" of poverty, often associated with the minority status and religious and ethnic persecution of disadvantaged groups (notably pogroms against Jews in czarist Russia), drove increasing millions toward the attractive "pull" of the United States during the three decades preceding World War I. (The Catholic Irish immigration of the 1840s–1850s was an earlier microcosm of similar economic, religious, and ethnic factors driving exiles to the United States.) This was the "new immigration" so distasteful to the older, established immigrant groups who in the 1960s would be dubbed the WASPS: White Anglo-Saxon Protestants.

After World War II, which had brought no real opening of the immigration door, those who once would have come to the United States as ordinary immigrants now could come in any numbers only as refugees. Likewise in the 1980s and 1990s, many poor, frightened, persecuted migrants—and the simply ambitious—came from Central America and the Caribbean to the United States seeking a better life, economically, politically, and socially. The great majority came legally as admitted immigrants, and others came as technical refugees; the "illegals" arrived surreptitiously without documentation, and the desperate appealed for formal asylum. Where once "Asian" race and then European "ethnicity" had been categories of exclusion, now family unification,Page 128  |  Top of Article employment skills, and even levels of social and personal threats and violence became the criteria for admission. Such has been the recent history of asylum in the much longer history of American immigration—a history of inclusion and exclusion that was encapsulated in the exhortation of Thomas Paine's Common Sense on the eve of American independence:

O ye that love mankind! Ye that dare oppose, not only the tyranny, but the tyrant, stand forth! Every spot of the old world is overrun with oppression. Freedom hath been hunted round the globe. Asia, and Africa, have long expelled her—Europe regards her like a stranger, and England hath given her warning to depart. O! receive the fugitive, and prepare in time an asylum for mankind.


Anker, Deborah E. Law of Asylum in the United States. 3d ed. Boston, 1999. The standard work written for lawyers; very detailed text and heavily footnoted.

Bessiouni, M. Cherif. International Extradition: United States Law and Practice. 3d ed. Dobbs Ferry, N.Y., 1996. A substantial work that, like Vialet, makes the argument that asylum and refugee regimes must be seen in the context of reducing immigration.

Bolesta-Koziebrodzki, Léopold. Le Droit d'Asile. Leiden, 1962. An older work, useful for a non-U.S. perspective and valuable for Latin America.

Brownlie, Ian. Principles of Public International Law. 5th ed. Oxford, 1998. A manageable introduction by an authoritative scholar and practitioner before the bar of the International Court of Justice.

Columbey, Jean-Pierre, ed. Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons. 2 vols. Geneva, 1995. A publication of Office of the UN High Commissioner for Refugees, Division of International Protection; volume 1 contains "Universal Instruments"; volume 2 deals inter alia with Latin America.

Dunne, Michael. "American Judicial Internationalism in the Twentieth Century." Proceedings of the American Society of International Law 90 (December 1996): 148–155. Discusses the work of David Forsythe, Louis Henkin, and Natalie Kaufman.

Ermacora, Felix, Manfred Nowak, and Hannes Tretter, eds. International Human Rights: Documents and Introductory Notes. Vienna, 1993. The comparative materials are intelligently contextualized with excellent references.

Frey, Linda S., and Marsha L Frey. The History of Diplomatic Immunity. Columbus, Ohio, 1999. Set to become the standard account.

Goodwin-Gill, Guy S. The Refugee in International Law. 2d ed. Oxford, 1996. The detailed and authoritative starting point for the subject, written by a former member of the UNHCR. The text is wide-ranging and fully referenced; indispensable for the world picture.

Grahl-Madsen, Atle. Territorial Asylum. London, Rome, and New York, 1980. Half this book, by a contemporary leader in the field, is documentation pleading for a convention on asylum comparable to the 1951 Refugee Convention.

Hailbronner, Kay. Immigration and Asylum Law and Policy of the European Union. The Hague, London, and Boston, 2000. An exhaustive work that deals with refugees and asylum-seekers.

Hall, William Edward. A Treatise on International Law. 8th ed. Edited by A. Pearce Higgins. London, 1924. A classic, relatively brief work.

Harvey, Colin. Seeking Asylum in the UK: Problems and Prospects. London and Dublin, 2000. Contextualizes somewhat dated "critical legal theory" and useful for European developments, political and legal.

Hathaway, James C. The Law of Refugee Status. Toronto, 1991. Monograph on the 1951 Refugee Convention by an authority.

Hutchinson, E. P. Legislative History of American Immigration Policy, 1798–1965. Philadelphia, 1981. The classic and indispensable account.

Hyde, Charles Cheney. International Law Chiefly as Interpreted and Applied by the United States. 2d rev. ed. 3 vols. Boston, 1945. First published in 1922, this work by an eminent international lawyer reveals how little interwar crisis affected U.S. immigration policy and practice.

Jennings, Robert, and Arthur Watts, eds. Oppenheim's International Law. 9th ed. London and New York, 1996. In this classic work, volume 1 examines asylum and refugees from a very wide international perspective with voluminous references.

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LeBlanc, Lawrence J. The United States and the Genocide Convention. Durham, N.C., and London, 1991. Deals in chapters 8 and 9 with the "reserving" of international treaties by the Senate.

Morgenstern, Felice. "'Extra-territorial' Asylum." British Year Book of International Law 25 (1948): 236–261. The first in a trio of essays discussing asylum from an international, comparative perspective. See also "The Right of Asylum," British Year Book of International Law 26 (1949): 327–357; and "Diplomatic Asylum," Law Quarterly Review 67 (July 1951): 362–382.

Nicholson, Frances, and Patrick Twomey, eds. Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge, 1999.

Ronning, C. Neale. Diplomatic Asylum: Legal Norms and Political Reality in Latin American Relations. The Hague, 1965. The appendices and bibliography are useful in a study that puts the Columbia-Peru Asylum Case in context and also covers U.S. practice.

Skran, Claudena M. Refugees in Inter-War Europe: The Emergence of a Regime. Oxford, 1995. Places the Evian conference of 1938 in the larger picture of U.S. interwar policy.

United Nations High Commissioner for Refugees. The State of the World's Refugees, 2000: Fifty Years of Humanitarian Action. Oxford, 2000. This important serial provides the annual monitoring of the implementation of the 1951 Refugee Convention and 1967 Protocol; contains factual information and statistics together with essays by regions, periods, and topics.

U.S. Committee for Refugees. World Refugee Survey. This annual survey is the most outstanding of relevant unofficial publications and presents the global picture.

U.S. Immigration and Naturalization Service. Statistical Yearbook. Annual review that contains informative and clear essays on the published data.

Vialet, Joyce. "A Brief History of U.S. Immigration Policy." 91-141 EPW (25 Jan. 1991): 2.

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On Thanksgiving Day 1999 a five-year-old Cuban boy, Elián González, was found floating on a tire tube in the sea off Florida. His mother, stepfather, and ten others had drowned when their small boat had capsized during the hazardous voyage. The rescue was un milagro (a miracle) in the eyes of many Cuban Americans, especially the powerful Cuban American National Foundation. For the next seven months the fate of Elián filled the media and involved at least four different courts, all three branches of the federal government, and lobbyists nationwide, as family members in Greater Miami and in Cárdenas near Varadero in Cuba struggled over the wellbeing of the Cubanito. Human interest aside, Elián's story showed the workings of the immigration and asylum system in dramatic form.

Initially, as an undocumented alien and a minor, Elián was paroled formally by the attorney general into the care of Miami relatives, who unsuccessfully used the Florida courts to gain long-term legal custody. The state court determined that the matter was properly within the federal remit of the Immigration and Naturalization Service, to which the local family applied for asylum status for Elián, and was not a matter of state family law. (In Cuba, Elián's father, Juan Miguel González, opposed these actions, later coming to the United States to plead for the return of his son.) The INS meanwhile refused an asylum application, filed both by Elián and on his behalf by a great-uncle, Lázaro González, adjudging that Elián did not qualify under any statutory provisions, specifically the likelihood of persecution and torture if returned to Cuba. This executive decision, supported by Attorney General Janet Reno, was upheld first at the local level by a U.S. district judge and then by the U.S. Court of Appeals for the Eleventh Circuit sitting in Atlanta.

In the several judicial decisions it was reiterated that the discretionary though delegated powers of the executive over immigration are virtually plenary; and even a paroled alien does not enjoy the constitutional protections of a U.S. citizen. (Bills were introduced in Congress to confer citizenship upon Elián.) The Eleventh Circuit also emphasized that if there was an issue about Elián's age (born 6 December 1993), then this made the role and wishes of his father, Juan, that much more important—rather than the counterclaims of Lázaro and his cosuitors. (For jurisprudential guidance the INS had examined even the Cuban Family Code as well as the 1989 UN Convention on the Rights of the Child, though the United States is not a party to the CRC.) Furthermore, the Eleventh Circuit accepted the appropriateness of the INS's considering the foreign policy aspects of any decision. Thus, by late June 2000 state and federal courts had moved to retain the jurisdiction of Elián's status within the INS under the higher authority of the Department of Justice—a sequence confirmed on 28 June, when the U.S. Supreme Court announced it would not take cognizance of the controversies. Later that same day, Elián was flown back to Cuba in the company of his father, having been seized nine weeks earlier—by armed federal agents—from his Miami relatives, whose temporary guardianship had been revoked by the INS. The federal operation, technically authorized or not, shocked even supporters of Elián's reunion with his father.

Source Citation

Source Citation   

Gale Document Number: GALE|CX3402300019