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The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

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Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

Emerging Voices Returns: Call for Abstracts

by An Hertogen

This July and August, we are bringing back our Emerging Voices symposium!

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to share your research with our readers, please send a 200-word summary of your idea and your CV to opiniojurisblog [at] gmail [dot] com by May 1, 2014. We’ll let you know by the end of May if you’re invited to submit a full post. We’ll also let you know at that point when your post is scheduled to go online. Final submissions between 1000-1500 words will be required two weeks before publication for final review, so at the earliest by mid-June.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Guest Post: The Russia-Crimea Treaty

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.  I would like to thank my colleague Brad Roth for helpful comments on a draft of this post.]

The latest development in Crimea’s headlong rush out of Ukraine is an agreement, signed on Sunday, March 16, between the Russian Federation and the Crimea. While I have not found a full translation of the agreement from Russian, the full text is available on the Kremlin website (as is President Putin’s extended response to western international legal arguments, which is well worth reading in full).

In rough translation, Article 1 of the treaty provides that the “Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing of this Agreement.”  The incorporation is “based on the free and voluntary will of the peoples of the Crimea.”  Article 2 announces the formation of two new entities, the Republic of Crimea and the “federal city of Sevastopol.”  Article 5 provides that residents of Crimea will become Russian citizens, unless within one month they choose another nationality. Article 6 describes a seven month transition period during which the economic, financial, credit and legal systems in Crimea will be integrated into those of the Russian Federation.”

The agreement has been accurately described as completing the annexation of Crimea.  Territory that thirteen of fifteen Security Council members believe is still part of Ukraine has been transferred to Russian control.  Let me make three quick observations about this agreement.
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From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

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).

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YLS Sale Symposium: International Protection Challenges Occasioned by Maritime Movement of Asylum-Seekers

by T. Alexander Aleinikoff

[T. Alexander Aleinikoff is the UN Deputy High Commissioner for Refugees.]

Irregular maritime movement raises complex issues of “mixed migration” flows, life-risking sea crossings, varying state policies, well-ingrained smuggling and trafficking networks, and emerging regional processes.  Movement of migrants, refugees and asylum-seekers by sea is a world-wide phenomenon, with Afghans, Sri Lankans, Rohingyas, and Bangladeshis, among others, travelling by boat in the Indian Ocean and Andaman Sea; more than 60,000 persons a year (mostly Ethiopians) arriving in Yemen; sub-Saharan Africans and now increasingly Syrians and Palestinians from Syria seeking to cross the Mediterranean from North Africa to Europe; and several thousand Cuban and Haitian migrants interdicted each year in the Caribbean.

The central goal of UNHCR is that states adopt policies and practices that are protection-sensitive.  A protection-sensitive approach would, at a minimum, embrace the following core principles:

  • The norm of non-refoulement, which prevents forcible return of a person in need of protection, applies wherever a state has de jure or de facto jurisdiction  (that is, whether the individual is encountered on the high seas or within the territorial water of a state).
  • Effective application of the non-refoulement principle requires fair and timely procedures for assessing whether an individual in an irregular situation is in need of international protection.
  • During the time that refugee claims are being examined, persons must not be subject to arbitrary detention or inhumane or degrading treatment.
  • Persons recognized as in need of international protection should ultimately be afforded a solution (such as third country resettlement or lawful presence in the state in which their claim is assessed).

Rescue at Sea

The vessels used by irregular migrants are often unseaworthy, and search and rescue efforts are frequently required in order to save lives.  “Rescue at sea” standards are embodied in number of international instruments, but important gaps remains—particularly related to (1) where rescued migrants should be disembarked, and (2) how best to ensure the processing of asylum claims and the provision of solutions.  A UNHCR-hosted experts meeting on Refugees and Asylum-seekers in Distress at Sea (held in Djibouti in 2011) supported a Model Framework for Cooperation for rescue at sea operations.  The aims of the Framework are to reduce loss of life, ensure predictability regarding disembarkation, preserve the principle of non-refoulement, and foster burden-sharing. The expert group also supported the establishment of mobile protection teams that can respond in rescue at sea situations, including by providing assistance with the reception and processing of rescued persons.

In November of 2013, UNHCR launched the Central Mediterranean Sea Initiative (CMSI), which proposes a comprehensive strategy for the region that would strengthen search and rescue by E.U. authorities and private ships, identify safe places for disembarkation, and provide screening of migrants to assess protection needs and other grounds of vulnerability. As to burden-sharing, the CMSI recognizes that the location for assessment of refugee claims need not be the state of disembarkation and recommends the establishment of a joint processing pilot for persons rescued in international waters and the resettlement of persons found in need of protection. The Initiative also proposes measures to reduce irregular migration, including mass communication efforts in countries of origin highlighting the dangerousness of irregular movement at sea, the establishment of robust asylum and protection processes in North Africa, and the enhancement of legal migration opportunities.

Interdiction

Rescue at sea is a humanitarian response to migrants in danger on the high seas. Interdiction is a law enforcement activity undertaken to prevent irregular migration that seeks to avoid state migration rules and processes. The reasons for irregular migration are numerous: migrants for whom legal channels of migration are not available may seek to join family members or to obtain work; or persons involved in criminal activity may try to avoid detection by law enforcement officers. Of central concern to UNHCR are individuals who undertake irregular movement in order to flee from persecution, conflict or other situations of violence and seek to access international protection guaranteed by international law.

UNHCR recognizes that states have legitimate interests in law enforcement actions against smugglers and traffickers and migrants seeking entry outside of lawful avenues.  But we urge states to ensure that such efforts comply with international conventions and norms relating to refugees and human rights.  UNHCR’s Executive Committee has declared that “[i]nterception measures should not result in asylum-seekers and refugees being denied access to international protection, or result [in non-refoulement].” (Conclusion on Protection Safeguards in Interception Measures (Conclusion 97, 2003).)

Despite this well-recognized norm, we see alleged “tow-backs” of boats in the Mediterranean that result in the loss of life, “push-backs” in the Andaman Sea that seem to be instances of refoulement, and on-board screening and returns in the Caribbean that appear not to fully protect against non-refoulement.

Interdiction and return—without any process—raises obvious protection concerns (and was held in Hirsi Jamaa and Others v. Italy to be a violation of European human rights norms).  Fortunately, it is not generally the rule, and states that intercept migrants at sea generally have policies and practices in place that they assert meet its duty to comply with international protection principles.  Thus, they may (1) screen and/or process intercepted asylum-seekers on the high seas (e.g., ship-board screening by the U.S. Coast Guard); (2) undertake extra-territorial processing (e.g., United States assessments of “screened-in” Cubans in Guantanamo), or (3) transfer interdicted asylum-seekers to other states for processing (the transfer of asylum-seekers by Australian authorities to Papua New Guinea and Nauru is one of several measures undertaken by Australia to deter irregular migration). (more…)

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

by Guy Goodwin-Gill

[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. (more…)