YLS Sale Symposium: Sale’s Legacies

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He served as Legal Adviser, U.S. Department of State, from 2009-13 and Counsel of Record for plaintiffs in Sale v. Haitian Centers Council, from 1992-93.]

Why, two decades later, does the Sale v. Haitian Centers Council litigation still spark such interest? This year alone, symposia about the litigation have transpired at law schools at Yale, Columbia, Howard, Brooklyn, and in London.  The case has been dissected in first-year Procedure Classes at Yale, Columbia, Touro, University of Connecticut, and New York Law Schools, just to name a few, using as texts Brandt Goldstein’s absorbing nonfiction novel Storming the Court, and his Storming the Court: A Documentary Companion, compiled with co-authors Professors Rodger Citron and Molly Beutz Land.

These texts tell the tale of a complex bifurcated lawsuit brought by a class of “screened-in” refugees and their lawyers against the U.S. Government, challenging first, the long-term detention of Haitians on Guantanamo, and second, starting in May, 1993, their direct return to Haiti following interdiction on the high seas.  Remarkably, the two halves of this frenetic case—which rocketed to the Supreme Court eight times in just fifteen months—ended on the same day in June 1993.  The Direct Return half of the case concluded with an 8-1 defeat for the Haitians at the U.S. Supreme Court, which ruled that the nonrefoulement obligations of  8 U.S.C. sec. 1253(h) and Art. 33 of the Refugee Convention do not apply on high seas. But on that same day, in the Illegal Detention wing of the lawsuit, some 200 HIV+ Haitian refugees detained for months on Guantanamo were released following trial, pursuant to a permanent injunction granted by Judge Sterling Johnson, Jr. of the Eastern District of New York. “Although the [U.S. government] defendants euphemistically refer to its Guantánamo operation as a ‘humanitarian camp,’” Judge Johnson wrote, “the facts disclose that it is nothing more than an H.I.V. prison camp presenting potential public health risks to the Haitians held there.”

This Opinio Juris Symposium just concluded reveals that, even decades after Sale ended, its story keeps repeating.  In particular, as the excellent contributions to this symposium have illustrated, Sale leaves behind three competing legacies. The first is the continuing governmental search for “national security black holes” through techniques of high seas interdiction, offshore detention camps, and theories that human rights law can be displaced by extraterritoriality and the law of armed conflict.  But this first legacy has been countered by a second legacy– constantly evolving strategies of transnational legal process and litigation– and a third– rapidly adjusting changes in human rights advocacy and clinical education. Together, the second and third legacies have largely thwarted continuing governmental efforts to construct enduring legal black holes.

In Sale, Justice John Paul Stevens found for eight Justices that the non-return (nonrefoulement) obligations of Immigration and Nationality Act (INA) and Article 33 of the 1951 Refugee Convention did not apply on the high seas.  As I chronicled shortly after the decision, that conclusion was deeply flawed methodologically: it ignored both the plain text and object and purpose of the treaty and statute. Moreover, the majority ignored contradictory negotiating and legislative history underlying both laws; overly deferred to executive power; and exalted the so-called statutory “presumption against extraterritoriality,” a trend the current Court strengthened in its recent Kiobel decision. Justice Blackmun’s compelling dissent skewered the majority, underscoring not only that the text and meaning of the INA and Refugee Convention were simple and crystalline—“Vulnerable refugees shall not be returned”—but also that that object and purpose would be entirely thwarted if those legal obligations did not apply extraterritoriality to protect fleeing refugees.

Looking back, Justice Stevens’ decision is most striking for its frank and admirable acknowledgement of the “moral weight “ of the Haitians’ claim. Justice Stevens found his own ruling deeply in tension with the spirit of the treaty, but curiously, instead of reading that text consistent with that object and purpose, Justice Stevens found instead that, although “the human crisis is compelling, there is no solution to be found in a judicial remedy.” Internal Court memos unearthed after Sale show that Justice Scalia had objected to the Court’s mere mention of “the moral weight” of the Haitians’ claim, saying “For my taste, that comes too close to acknowledging that it is morally wrong to return these refugees to Haiti, which I do not believe.”  To which Justice Stevens responded,  “I think it is undeniable that it has some moral weight and I think it would be unfortunate for us to imply that we think it may have none” (emphasis in the original).

An undeniable legacy of Sale is that over the last two decades, national governments seem to have become increasingly inured to this moral dilemma, pursuing strategies of (1) high seas interdiction of refugees (particularly Australia and Italy); (2) asserting strictly territorial interpretation of ostensibly universal human rights treaties; (3) prolonging offshore detention on locations like Guantanamo; and (4) suggesting that human rights obligations somehow do not apply in the lex specialis zone of armed conflict. But however dogged these efforts have been, they have failed to establish conclusively legal black holes, either on the high seas or on offshore locations.

Shortly after Sale, the Inter-American Commission on Human Rights asserted that: “Article 33 has no geographical limitations.” In a 2007 Advisory Opinion, the UN High Commissioner on Refugees confirmed that a “State is bound by its obligation under Art. 33 not to return refugees to a risk of persecution wherever its exercises effective jurisdiction” and “an interpretation [of Article 33 of the Refugee Convention] which would restrict the scope of application …to conduct within the territory of a State party would be contrary to” that treaty’s terms, object and purpose and relevant rules of international human rights law.

In 1993, I predicted that a string of such “international rulings [critical of Sale will] “show …that adverse U.S. Supreme Court decisions are no longer final stops, but way stations in the process of complex enforcement triggered by transnational public law litigation.” As the contributions to this symposium by Bill Frelick and Guy Goodwin-Gill show, the external criticism of Sale has only grown, inter alia, in the European Court of Human Rights’ rulings in Hirsi v. Italy and MSS v. Belgium and Greece (finding that application of human rights obligations follows from de jure or de facto control of a detainee and that the European Convention’s prohibition on collective expulsion also applies to removals undertaken outside the state’s territory); the European Court’s unambiguous declaration in Medveyev v. France that the high seas are not a “legal black hole (“the special nature of the maritime environment relied upon by the Government in the instant case cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction….”), and the Australian High Court’s decision in M70 (holding that asylum seekers interdicted off Australia may not be sent to Malaysia for offshore processing). These rulings increasingly treat Sale as isolated state practice, due little deference, based on an unexplained asymmetry of authority: that somehow, national governments need not take the bitter with the sweet. They can claim a legal right to exercise governmental authority extraterritorially without any accompanying extraterritorial legal constraint.

Judge Johnson’s trial ruling in Sale (later vacated by settlement) similarly insisted that Guantanamo is not a legal black hole. “If the Due Process Clause does not apply to the detainees at Guantanamo,” he concluded, the U.S. government “would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors or to discriminate among them based on the color of their skin.” In Rasul v. Bush, Hamdan v. Rumsfeld, Boumediene v. Bush, the Supreme Court consistently rejected the U.S. government’s claims that alien detainees on Guantanamo have no rights under Common Article 3 of the Geneva Conventions and may not challenge their own detention under the writ of habeas corpus.  While the U.S. Supreme Court has not yet definitively affirmed that alien detainees on Guantanamo have due process rights, Justice Kennedy’s opinion in Boumediene applies a functional analysis to the applicability of fundamental rights on Guantanamo: would it be “impracticable or anomalous “ to apply such a right there?

Similarly, some commentators have suggested that the international law of armed conflict and Lex Specialis should create a “situational black hole” for Human Rights Law. But as Sir Daniel Bethlehem has noted, that claim is clearly overbroad.  For example, even though some human rights– e.g., rights of political participation may be truncated under specified conditions in wartime, the right to free worship of religion is not suspended during armed conflict. And international humanitarian law often requires protections similar to human rights law in any event. In the future, it may well be that what international human rights protections end up applying during armed conflict will be determined by something resembling Boumediene’s “impractical and anomalous test.”

Two decades after Sale, governmental efforts to open legal black holes remain fundamentally contested, primarily because Sale generated important two important “counter-legacies.”  The first, as Michael Wishnie and I recently detailed, was the impetus the case gave for renewed Transnational Public Law Litigation (TPLL) as a dimension of Transnational Legal Process, an approach whereby human advocates inside and outside the government provoke interactions, to generate interpretations, to promote internalizations of global norms into domestic legal systems.  Indeed, Justice Blackmun signaled this prospect in his 1994 speech to the American Society of International Law, when he noted that “although the Supreme Court is the highest court in the land, its rulings are not necessarily the final word on questions of international law.” Too often, committed human rights advocates — both inside and outside governments— fail to achieve their desired outcomes because they cannot manage politics, harness incentives and institutions, or deploy law in a way that operationalizes the principles they value.  But an increasingly rich transnational legal process has created multiple new avenues for “clinical trials,” whereby practitioners can test arguments that have not fully succeeded in one forum in another, more sympathetic venue.  Because human rights advocates are by their nature “forum-shoppers” and because globalization has generated a growing set of fora in which the same legal issues can be contested, human rights scholars and advocates now have repeated opportunities to work together, through repeated lawsuits, to find better fora in which to crystallize norms and leverage legal rulings into meaningful policy change. In broad terms, one may think of this as pursuing a strategy of “LawFAIR”: namely, (1) crystallizing Lawful norms, claims, and precedent, before (2) a receptive Forum, aided by (3) coalitions that cleverly combine Assets and Allies; as well as (4) the Issue Linkages between the human rights claim and related issues affecting the adversary, all in search of (5) achievable Remedies and Relief.  What Sale teaches is that well-crafted LawFAIR strategies need not just entail making political compromises. Advocates may learn the lessons of “repeat play” to deploy tools of process to harness politics and promote global policies based on better human rights principle.

A second unexpected counter-legacy of Sale has been a newly energized human rights advocacy movement, supported by the birth of a generation of what Deena Hurwitz has called “inevitable” human rights clinics. As Michael Wishnie and I recently detailed in Human Rights Advocacy Stories, advocacy strategies inspired by Sale increasingly enlist “Inside-Outside” politics, combining transnational public law litigation with movement politics.  These strategies have inspired law professors to re-engage the real world with amicus briefs, arguments, and blog posts and fostered a new generation of “live-client” Human Rights Clinics, part of the expansion of experiential learning in leading law schools. All of this has been given new impetus by the academy’s response to human rights issues raised by the so-called “Global War on Terror,” a role analogous to the one played by the public law academy during the Civil Rights Revolution.

In sum, two decades later, Sale should be remembered as more than just a memorable case; it is a litigation that pioneered new ways of looking at the world. At the same time as it generated arguments that led governments to seek new ways to create legal black holes, it has inspired a generation of law students and human rights advocates to keep those black holes closed, by giving them legal arguments, strategic tools, and process insights that have helped them counter those arguments even in the most distant corners of the world.

http://opiniojuris.org/2014/03/17/yls-sale-symposium-sales-legacies/

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