YLS Sale Symposium: The Globalization of High Seas Interdiction–Sale’s Legacy and Beyond

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Before Sale, before Haitian interdiction even, there was ‘piracy’ off the coast of Thailand, tolerated and encouraged locally as a deterrent to landing; there was towing out to sea, even of unseaworthy vessels; there was the blind eye turned to the plight of those in distress; and somewhere in-between was the refusal to allow disembarkation of the rescued – an exercise of legal competence on a matter regulated in the past by practice and expectation, but never written into law.

No, there is nothing new here, and many are the ways by which States have sought to keep others away from their shores, particularly those in search of refuge. And yet despite the many novel forms of interdiction, I do not share many of the premises on which this conference appeared to be based. For example, I do not think that Sale itself has influenced the practice of States in any meaningful way. It may have encouraged elements within States to push the envelope of legality, but looking around at what goes on in the name of ‘migration management’, it’s hard to believe that they need any encouragement.

Nor do I think that courts which clarify the legal limits to permissible State action thereby invite executives just to look for other ways to avoid law and obligation. They do, of course, but that’s part of the tension inherent in societies operating under the rule of law. Nor do I think that the judgment of the Supreme Court in Sale counts for anything juridically significant, other than within the regrettably non-interactive legal system of the United States. Here, the Court ruled for domestic purposes on the construction of the Immigration and Nationality Act. What it said on the meaning of treaty was merely dictum and the Court was not competent –in at least two senses – to rule on international law.

At best, the judgment might constitute an element of State practice, but even here its international relevance can be heavily discounted. The Court failed, among others, to have regard to the binding unilateral statements made by the US when interdiction was first introduced, and the ten years of consistent practice which followed. And as any student of international law will tell you, practice and statements of this nature are highly relevant, particularly when against interest.

UNHCR, moreover, which is responsible for supervising the application of the 1951 Convention/1967 Protocol, protested the judgment at the time and has consistently maintained the position set out in its amicus brief to the Supreme Court (and in earlier interventions with the US authorities). Significantly, no other State party to the treaties has objected to UNHCR’s position, though the forum and the opportunity are readily available, such as the UNHCR Executive Committee, ECOSOC, or the Third Committee of the UN General Assembly.

Over time, other courts, national and international, have had to address comparable and related issues, touching on both municipal questions of legality and international questions of treaty compliance, jurisdiction, attribution of conduct, and liability. And no matter the context the overall thrust has been towards greater accountability and clarification of the normative context in which executive institutions and policy makers must now learn to operate.

Let me suggest that Sale be understood and confined to a particular historical and not very edifying context. That context, in turn, invites us to think about what preceded the introduction of interdiction in 1981, and to try to understand, if we can, the inconsistencies between US policy towards Haitians, and towards other groups displaced from their countries in other regions.

In 1980, Judge King in the District Court for the Southern District of Florida handed down his decision in Haitian Refugee Center v Civiletti – a remarkable judgment. Judge King extensively reviewed the exodus of Haitians over the then twenty-three years of the Duvalier regime, finding a pattern of persecution and ‘substantial evidence’ of the mistreatment of returnees. He then examined the way in which those arriving in the United States were treated by the INS with its accelerated deportation programme. His rather unexceptional conclusion was that Haitians deserved something better.

Judge King found as a matter of fact that in the spring and summer of 1978, the INS had established the ‘Haitian Program’ to deal with the backlog of claims, not to any sudden or massive influx but, as the Court of Appeals confirmed, to ‘a slow trickle… over a ten year period… and… the confessed inaction of the INS…’

All of the Haitian claims to asylum – over 4,000 of them – were denied. The numbers, said Judge King, ‘imply more than a coincidental uniformity’, but this would only amount to unfair treatment if it resulted from prejudicial discriminatory actions that violated due process. That was indeed the case, given the assumption that none of them had any right to seek entry into the United States.

This assumption resulted in ‘wholesale violations of due process, and only Haitians were affected…’ It was, in planning and execution, ‘offensive to every notion of constitutional due process.’ Two years later, the Fifth Circuit affirmed. Though clearly concerned at the learned judge’s strong language and the implicit linkage to discrimination on the ground of race, the Court of Appeals concluded that the INS had knowingly made it impossible for Haitians and their attorneys to file for asylum in a timely manner.

The Court refrained from finding discrimination on the basis of national origin, which it saw as unnecessary given its ruling on due process. And they thought the judge had gone a mite too far in examining the factual background, and had trespassed on the irrelevant by finding a State Department report to be unreliable…

In the meantime, of course, with Judge King’s powerful constitutional writing on the wall, President Ronald Reagan signed Executive Order 12324 on the ‘Interdiction of Illegal Aliens’ on 29 September 1981. If those physically present were entitled to due process, then physical presence must be denied them.

Like many who were then working for UNHCR, I was struck by the inconsistency between this measure and the resolute stand taken by the United States with regard to the Indochina refugee crisis, then in full swing. There, the US, backed by its allies, staunchly advocated first asylum for those leaving the Indochina peninsular in small boats in search of refuge; it protested the forcible interception of refugee boats by coastal States and their towing out to sea, which often resulted in the loss of life, and it urged that all asylum seekers should be admitted at least temporarily and on a non-discriminatory basis. These principles were duly endorsed by UNHCR’s Executive Committee in 1981, with Australia playing a leading role in their formulation. [UNHCR Executive Committee Conclusion No. 22 (XXXII) (1981)]. This, then, was the immediate precursor to today’s interception operations.

Earlier anti-smuggling measures apart, Executive Order 12324 was probably the first to deal expressly with boats carrying migrants and asylum seekers, and what was then unusual, has now become commonplace. The model, though, is not always replicated with accuracy. The original was in fact framed with international obligations very much in mind. Section 2, among others, provided that, ‘no person who is a refugee will be returned without his consent’, while other provisions disclosed an apparently strong commitment to protection.

The US Ambassador to Haiti even advised the government  – the government of the country of origin, no less – that it was ‘understood’ that the US did not intend to return to Haiti anyone whom it determined to qualify for refugee status, and the Attorney General wrote to the UNHCR office in Washington DC not long after, confirming unqualified recognition by the US of its international obligations, specifically including non-refoulement.

It is hardly surprising that States anxious to enhance border control and avoid triggering inconvenient obligations, such as non-refoulement, will try to push their borders outwards, hoping thereby both to obstruct the movement of people in their direction, and to avoid the eye of the law.

The United Kingdom tried this some years back, placing immigration officers in Prague Airport with instructions to deny boarding to anyone who looked as if they might seek asylum or protection. That meant any Czech citizen of Roma origin, the controls were manifestly based on racial characterizations, and they duly struck down as unlawful by the House of Lords.

Around the same time, the United Kingdom, claiming that the 1951 Convention was out of date and unsuited to 21^st century problems, floated the idea of ‘transit processing centres’ and ‘regional protection zones’, along with the idea that those who claimed to be in need of protection should be processed exclusively, not only beyond the borders of the European Union, but beyond the reach of European law.

These ideas gained no traction within the EU as a whole but, as Spain’s Hera operation off the west coast of Africa and the Italian approach to departures from Libya demonstrate, the goal of containment has been actively pursued bilaterally.

And Australia, now shrouding its operations in secrecy, or trying to, is back in the game of interdiction, summary return, and third State diversions, though recent developments in Papua New Guinea and on the island of Manus, as well as relations with Indonesia and Malaysia, may soon require yet another re-think.