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Abstract

The contemporary international refugee protection regime is formally anchored in the principle of non-refoulement (the prohibition against forcibly returning refugees and asylum seekers to the territories where their fundamental rights would be threatened) and the right to seek asylum at or near territorial borders. These principles have been increasingly undermined by state practices that relocate border enforcement and asylum processing beyond their territorial borders. This Article examines how the United States, the European Union, and European states operationalize a global non-entrée regime through safe third country removals and border externalization agreements that purport to comply with international law while functionally denying access to protection. The article further demonstrates that existing international responsibility doctrines— particularly the Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”)—may be ill-suited to address the accountability gaps created by delegated enforcement. While responsibility may attach in a small number of cases where harm is ongoing and foreseeable, soft-law instruments such as non-binding memoranda of understanding may still enable states to eschew responsibility for human rights violations such as refoulement, arbitrary detention, and inhumane treatment. Situating this doctrinal failure within Third World Approaches to International Law (“TWAIL”), the Article contends that externalization reflects the racialized and colonial foundations of the modern refugee regime. It concludes by proposing a recalibrated application of responsibility doctrine alongside a broader rethinking of international migration law beyond humanitarian exception towards frameworks capable of addressing displacement produced by global inequality, intervention, and post-colonial dependency.

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