YLS Sale Symposium: Sale’s Legacy and Beyond (Part II)

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

Recent EU and ECHR jurisprudence on a range of State activities affecting refugees and asylum seekers has emphasized that fundamental rights are not just about freedom from torture or refoulement, but also about effective remedies.

What comes through in the judgments of the CJEU in N.S. and Puid, for example, is acceptance of the notion that fundamental rights may well require proactive, protective action – in the case of the Dublin system, a duty to assume responsibility wherever transfer may expose the individual to a serious risk of prohibited harm, such as refoulement or inhuman or degrading treatment. The European Court of Human Rights decision in M.S.S. v. Belgium and Greece further supports this proposition, while that in Hirsi v Italy goes still further on the interception issue.

Other courts in other jurisdictions have been no less robust in defence of the displaced, this especially vulnerable group of asylum seekers who require special protection – the UK House of Lords in the Roma Rights case, facing up to a policy and practice clearly discriminatory by reference to race; the UK Supreme Court in EM (Eritrea), recognizing that any real risk of prohibited treatment, not just a systemic failure, was sufficient to require non-removal under Dublin; the European Court of Human Rights in M.S.S. v Belgium and Greece, also on Dublin transfers, but also on knowledge and risk, among others, and on the right to an effective remedy; and again in Hirsi v Italy; and the Australian High Court in Plaintiff M70.

Australia once actively promoted temporary refuge, then turned to mandatory detention as supposedly some sort of deterrent to boat arrivals; when that seemed to have little effect, it tried to emulate some of the interdiction practice. Interestingly till now, and as in the early days of US interdiction, it has expressly recognized its basic obligations towards the intercepted, and its goal, in theory, has been to accommodate non-refoulement, but to deny on-shore processing and even, from time to time, on-shore solutions.

What the M70 decision of the Australian High Court reveals, however, is that international obligations are difficult to wish away onto other States. In its earlier dealings with the remote island nation of Nauru, Australia had clearly been the principal in a ‘principal-agent’ relationship, paying the full costs of detention accommodation of the intercepted, relying on Nauru and distance to keep lawyers and journalists at bay, but impliedly accepting that it remained responsible internationally.

Behind M70, though, there was different thinking. It involved an agreement – intentionally not a binding treaty – to trade asylum seekers: 800 to go to Malaysia, 4000 to be resettled out of Malaysia over four years. The domestic legal background was a provision of the Migration Act which anticipated that the Minister would make a declaration, identifying a State as appropriate for such an arrangement, and as able to provide the requisite level of protection.

The High Court placed this agreement firmly within the context of an effort by Australia to ensure that its international obligations were met; but as a ‘protection exercise’, this meant that, as a matter of domestic law and statutory construction, Australia was obliged to ensure that those transferred enjoyed legal protection of their rights, not just practical protection; what is more, this meant more than just non-refoulement, but the protection also of other, Convention-related rights in the State of intended destination.

The government’s response was to change the law, again. But its attempts to impose a regional solution , rather than to negotiate one in good faith, now seem likely to run into other political difficulties with prospective partners.

‘Jurisdiction’ is a deceptive and often misleading category, especially attractive because it seems to offer a way out of liability. But it is important to be clear about the role of jurisdiction, in particular, not as an indicator in the broad field of State responsibility, but in its more limited role as an applicability threshold in various treaty-based human rights regimes. In the latter, there is still room for argument, whether jurisdiction as triggering mechanism requires the ‘actual exercise of control and authority’ over a person, in Marko Milanovic’s words; or whether ‘full and exclusive control exercised by the State’, in the words of the European Court of Human Rights in Hirsi, is definitive, or merely an example.

This argument will continue. The territorial constraint may be now no more than a starting point, but novel excuses will arise, particularly in maritime interception contexts. For example, is ‘jurisdiction’ established in the case of a deliberate failure to rescue? Or where a State vessel radios advice on the location of boats to a third State, which then proceeds to interception? Or when a State vessel simply ‘escorts’ or ‘obliges’ boats to head for an insecure destination, but without any boarding or actual use of force? Or where that State vessel does the same, but ostensibly under the direction and control of an authority from the destination State (the ship rider question)? Or where interception operations are outsourced to private corporations? These issues are already on the table.

Many States have made clear their intention to project power beyond territory in order, in particular, to control migration, asylum seeking, trafficking, and smuggling. What we see again is that perpetual tension at national and international levels, between legal standards, on the one hand, and policy goals and implementation, on the other. In normal life, this tension is commonly, if not exclusively, mediated through the courts, but today’s policy people are perhaps not so committed to the rule of law as many of us might naively suppose.

Sale found the majority siding with the policy people, compliant with the goal of putting people beyond the law. Itamar Mann refers in one of his recent writings to the ‘darker side’ of Sale; and although it is not the whole picture, that dark side still comes to the fore, its roots typified by what came out of Florida in the late 1970s and early 1980s, born of incompetence, inefficiency, ignorance and prejudice; and that darker side is transnational indeed.

Like it or not, the rule that States have obligations towards those on their territory, who are subject to their jurisdiction, or whom they bring under their control and authority, is one of the consequences of sovereignty, in that it flows from sovereignty and from the exercise of sovereign powers – legislative, judicial, prescriptive, prerogative, enforcement, control over the lives of others.

Traditionally, States have wanted to see migration from a unilateralist perspective, eschewing cooperation. But the drivers of migration, forced or voluntary, have always defied regulation or management, let alone prediction, and the movement of people between States, by definition, is international. What the history of international refugee law and organization tells us is that States at large do see a need, one way or another, to protect those at risk, and that they are prepared to accept international obligations in that regard. Back of it all, there are certain areas of human activity and State-individual interaction that remain governed, not by self-interest, but by common interests.

Focusing for a moment on managing migration by sea, and accepting that this is best dealt with from within the law, what’s to be done? First, we need a clear understanding of the applicable law, of the overarching principles to which I have just referred, of the interactions between overlapping regimes (such as human rights and maritime law), and of the grey areas. But as lawyers, we should know that, for all the present uncertainties, there is no physical space and no realm of human activity that is beyond the rule of law.

Borders, in that sense, do not mark the limit of the law. On the high seas, in the contiguous zone, in the territorial seas of other States, at notional and virtual borders continuously reconstituted on the basis of national or regional interest, international law is there. The art will be to operationalise the law consistently with fundamental rights, so as to ensure protection.

The courts certainly have a major role here in advancing the rule of law and in bringing justice to the grass roots, to those who are especially vulnerable; but courts are not the only relevant actors and remedies, in that sense, should not be the only response. The avoidance of harm is no less valid an objective, and States themselves and international organizations have common interest in principled responses.