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Law of the Sea

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

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.]

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. (more…)

YLS Sale Symposium: Interdiction of Asylum Seekers–The Realms of Policy and Law in Refugee Protection

by David Martin

[David A. Martin is the Warner-Booker Distinguished Professor of International Law, University of Virginia.]

I start with a high-altitude view of the history and contours of refugee protection, to provide perspective on the current use of interdiction – and also on the contrasting stances taken by the U.S. Supreme Court in Sale v. Haitian Centers Council (509 U.S. 155 (1993)) and the European Court of Human Rights in Hirsi Jamaa v. Italy (Application no. 27765/09, Eur. Ct. H.R. 10 (2012)).

Refugee protection is not, at its core, dependent on fixed or expansive legal obligations of states or other political actors.  Since Biblical times, refugees have been protected, even in the absence of treaty or legal edict.  These were policy decisions by political leaders, influenced by compassion, but also by pragmatic considerations that ranged from assessments of absorptive capacities, food supplies, and the tolerance level of the leader’s subjects or fellow-citizens; through perceived advantages to be gained if the refugees seemed a particularly skilled or enterprising lot; to judgments about whether the exodus would strengthen or weaken the state against its enemies.

Protection that rests on policy is uncertain and unpredictable – by definition not wholly or even principally guided by humanitarian considerations.  But it has nonetheless at many times afforded true shelter to multitudes.  And after 60 years of operation under the major international treaties relevant here, we can hardly say that treaties assure reliable and consistent humanitarian responses either.

Comes now a new generation of tribunals and treaty bodies that seem to believe they can end the modern era’s inconsistency and usher in a virtually pure humanitarian practice of refugee protection.  Their methods include reading selected provisions in refugee and human rights treaties quite expansively, deploying broad notions of a state’s jurisdiction – territorial and otherwise – and projecting onto the relevant treaties a mono-thematic conception of object and purpose, seeing only an objective to provide protection and issuing their interpretations accordingly.

This newly ambitious legal effort, most clearly exemplified in the Hirsi Jamaa decision, certainly is capable of improving protective outcomes for certain asylum-seekers in specific flight situations.  But there are reasons for deep skepticism that this idealistic effort to carpet the entire field with judicially enforced legal prescripts will somehow overcome or crowd out all those benighted considerations of tawdry policy that state leaders tend to take into account.  It may even interfere with efforts to optimize protection within the real-world constraints that government officials must account for.  I offer here four reasons for skepticism.

Original intent and government buy-in. 

First, this mono-thematic focus was not what states agreed to – not in 1951 or 1967, not in the European Convention on Human Rights.  The treaties have a more complex set of objectives.  Humanitarian shelter is one of them, to be sure, enough to motivate setting into law a floor reflecting modest but important commitments, focused on persons already present on the state’s territory – a floor, it must be emphasized, not a whole edifice.  Other important treaty objectives, given only muted expression but still decidedly on the minds of the diplomats creating the treaties, were to preserve the core of national control over migration by foreigners and also to protect against criminal and security threats.  There was no clear template for the mechanisms to be employed toward these ends, but states clearly regarded it as important to keep their protection commitments in balance with the sovereign right to make deliberate decisions about inbound migration.  At each stage governments provided clear signals that they were not writing a “blank cheque” (a frequent assertion in the travaux of the 1951 Convention).  They acknowledged that it would be good to do more, when possible, but they left the “more” in recommendations meant to inform ongoing policy decisions.

The dateline limitation in Article 1 of the 1951 Convention relating to the Status of Refugees may be the clearest indication of this caution (treating as “refugees” only those who fled “as a result of events occurring before 1 January 1951” – hence a largely known and finite population already present in the West European countries leading the drafting effort).  But strong markers of the same attitude also appear in the exclusion from coverage of persons who had committed serious crimes, and especially the broadly worded exception to the nonrefoulement  protection of Article 33 when “there are reasonable grounds for regarding” a person “as a danger to the security of the country” of refuge. Commentary at the time, even pieces written by scholars of strong humanitarian instincts, generally accepted that Article 33 did not include non-rejection at the frontier.

Some have suggested that the 1967 Protocol, which eliminated the dateline, should be seen as global acceptance of a more purely protective stance.   This claim has to downplay the continuing exclusions from treaty coverage of serious criminals and national security threats. But there is an even stronger indication that the UN General Assembly, in adopting the text of the Protocol, was not propounding an absolute bar on interdiction or other barriers to arrival.  That same year the General Assembly adopted a formal Declaration on Territorial Asylum (GA Res. 2312 (XXII), 22 U.N.GAOR Supp. (No. 16), at 81).  Article 3 is widely quoted for its general provision that seems at first to bar “measures such as rejection at the frontier.”  But the very next clause, often omitted by the commentators, states: “Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”  The General Assembly clearly did not consider non-rejection at the frontier an absolute or nonderogable obligation for states. Governments still insisted on keeping in their hands certain tools to meter their obligations or keep them politically manageable, albeit at a higher protective level than in pre-treaty days. The Sale decision essentially recognized this tradeoff at the foundation of the legal obligations in the Protocol.  The Court, like the Convention’s drafters, acknowledged that going further toward protection would be desirable in many circumstances – but that is a task for policy, not treaty obligation (509 U.S. at 188).

The insufficiency of alternatives.

Second, supporters of expansive readings of nonrefoulement sometimes counter that non-entrée policies, which include maritime interdiction but perhaps also strict visa regimes, are not necessary to serve the state’s interests in migration control and in stopping crime, terrorism, or spying.  Instead those aims can be addressed in a far more precise and scientific way through careful application of the governing definition, which requires an asylum seeker to show a “well-founded fear of persecution” on account of five specified grounds, and which also excludes serious criminals and security threats.

This is an attractive claim, and it seems to accept that the treaties embody a more complex set of objects and purposes.  But government officials generally are not reassured that such reliance will sustain the needed balance, because of hard experience with adjudication systems.  In fact we still are not very good at accomplishing timely and accurate asylum decisions, with sufficient checks against fraud, even though intensive effort and millions of dollars have been devoted to improving adjudication since the surge in asylum applications in the 1980s.  Moreover, as government officials see it, the problem is not just insufficient progress in procedures.  The substantive standard also keeps expanding, now reaching far beyond fear of persecution or the five familiar grounds – especially under the ECHR jurisprudence.

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YLS Sale Symposium: Sale’s Legacy– “Creative Legal Thinking” and Dynamic Interpretation of Refugee Law

by Thomas Gammeltoft-Hansen

[Thomas Gammeltoft-Hansen is Research Director at the Danish Institute for Human Rights and author of Access to Asylum: International refugee law and the globalisation of migration control (CUP, 2011), which won the Idman Award for best monograph in public international law.]

In 1992 President George HW Bush ordered the United States Coast Guard to stop all persons fleeing Haiti in international waters. When a majority of the United States Supreme Court upheld the legality of this interdiction program, it paved the way for more than 65,000 people being returned to Haiti with no assessment of any claims for political asylum. Beyond this, the Sale case could be argued to have two legacies – one political and one legal. US policy and Sale undoubtedly inspired many other countries to adopt similar interdiction schemes and perhaps a more general trend to speculate in circumventing obligations under international refugee law. Yet, Sale also prompted other courts and refugee advocates to pick up the torch, ensuring that international refugee law has developed dynamically in response to new patterns of migration control.

High seas interdiction forms parts of a wider set of deterrence measures to administratively or physically prevent refugees from accessing asylum. From visa controls to biometric scans, migration control is no longer something performed only at the perimeter of a state’s sovereign territory, but rather forms a set of progressive mechanisms to check travellers at every step of their prospective journey. A common trait of many of these policies is that they are designed to carve out exceptions to, circumvent or shift obligations otherwise owed under international law, often through governance measures that could hardly have been foreseen when the 1951 Refugee Convention was drafted. The US interdiction program in the 1990s constitutes a prime example. By geographically shifting migration control to block Haitian refugees on the high seas, it was argued that neither US nor international law applied.

The majority of the Supreme Court in Sale not only upheld the government’s claim, it set off a proliferation of extraterritorial migration control practices. High sea interdiction programmes have since been introduced both in the Mediterranean and the Pacific. Migration control has further become a foreign policy issue, with bilateral and multilateral agreements paving the way for migration control within the territorial waters, airports or border zones of origin or transit states, or the enlisting of third country authorities to perform exit or entry control on behalf of sponsoring states. In parallel, responsibility for migration control has been delegated to corporate actors. From the initial imposition of carrier sanctions spreading through the 1980s, private security companies and other contractors are today increasingly taking on immigration controls both at the border and overseas. These practices all raise complex questions about the reach of international refugee and human rights obligations, attribution of conduct and the division of responsibility for human rights violations. (more…)

YLS Sale Symposium: A Salvage Operation–Refugee Rights Advocacy in the United States after Sale

by Bill Frelick

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program. See part one of his post here.]

Since Sale v. Haitian Centers Council judgment in 1993 settled the issue of extraterritorial application of the principle of nonrefoulement in US domestic law, US-based refugee rights advocates after 1993 were left without recourse to US courts. But, writing for the Sale majority, Justice Stevens had said, “The wisdom of the policy choices by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”

Accordingly, US advocates turned their attention to the policy choices of the executive branch and tried to push the US president to limit US actions, even if he was not required to do so under US law. Secondarily, they targeted the legislative branch, although the US Congress in the mid-90s had taken a restrictionist turn with respect to asylum and immigration. The stark political reality was that there was no prospect of reversing Sale through legislation. Finally, as discussed in a companion essay, US-based advocates worked with UNHCR and international NGO partners to isolate the US interpretation of the nonrefoulement principle in international fora and to limit the damage of the US precedent in other jurisdictions.

This essay will discuss the first two of these three avenues of post-Sale advocacy in which NGOs tried:  (1) to convince the Clinton Administration (and later administrations) as a matter of policy, if not of law, to adhere to international refugee protection principles, and (2) to prevent Congress from taking even more regressive steps and, if possible, to introduce language into legislation that would ameliorate the worst elements of Sale.

Advocacy with the US Executive

First, refugee advocates engaged with the Clinton Administration to convince the president to refrain, as a matter of policy, from availing himself of the Supreme Court’s free pass to refoule maritime asylum seekers. This effort involved direct meetings with Clinton Administration officials, media outreach, and enlisting the support of influential voices. Human rights organizations, including Human Rights Watch/Americas Watch, the National Coalition for Haitian Refugees, Caribbean Rights, the Lawyers Committee for Human Rights, Amnesty International, and Physicians for Human Rights, worked to document human rights abuses of Haitians who had been returned by the United States. Advocates also argued with Clinton Administration figures that the US interdiction practice was likely to be very damaging to refugee rights if widely adopted by other states.

To some extent this advocacy succeeded. The Clinton Administration tested a number of alternatives to direct, summary repatriation of Haitians—short of admitting interdicted Haitians to the United States to pursue asylum claims on US soil. Among these was an in-country refugee processing procedure, modeled to some degree on the Orderly Departure Program that was being used at the same time to bring Vietnamese boat departures to an end. Although NGOs were divided on in-country processing from Haiti, and some were involved in the processing, other advocates, this writer included, sharply criticized in-country processing as deeply flawed based, in part, on rights violations Haitians experienced while waiting in the queue, and rejected it as a rationalization for summary returns (see here).

About a year after Sale, on May 8, 1994, President Clinton announced that his administration would not directly repatriate interdicted Haitians without giving them an opportunity to present refugee claims. In July 1994, the Clinton Administration announced that the US naval base at Guantánamo Bay, Cuba (GTMO) would be used as a safe haven for Haitians, the same day that the UN Security Council agreed to a resolution calling for all necessary measures to restore democracy to Haiti. Within six months, President Bertrand Aristide had been restored to power and most of the Haitians at GTMO returned voluntarily.  Refugee rights advocates, this writer included, were highly critical of the treatment of Haitians (and Cubans) at GTMO, but for all its faults  it was a vast improvement over having US Coast Guard cutters taking interdicted Haitians directly back to Port-au-Prince.

Policies not grounded in law are subject to change according to political circumstance, however. When Aristide was deposed a second time, in February 2004, the new US president, George W. Bush, announced, “I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore,” and US policy had swung back to that of the GHW Bush years, and post-Sale his actions were not amenable to legal challenge.

Advocacy with the US Congress

On the second front, with the US Congress in the mid-1990s, there was considerably less sympathy for Haitian refugees than in the White House. The Congress was in the process of enacting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), legislation that introduced a host of draconian restrictions on the ability of asylum seekers to lodge claims in the United States. This left US advocates to pursue rearguard actions on the margins of IIRAIRA that might provide some relief to asylum seekers interdicted on the high seas. Refugee rights advocates could not stop Congress from introducing expedited removal as part of IIRAIRA, but were able to convince legislators to include in the category of aliens who were to be treated as applicants for admission in INA §235, the new statutory provision for expedited removal, people who had been “brought to the United States after having been interdicted in international or United States waters.”

Refugee advocates reasoned that although expedited removal was a step backward in procedural protections for arriving aliens, it at least would provide some procedure, however truncated and accelerated, that would provide a higher measure of protection than was being provided to asylum seekers interdicted at sea and summarily returned to Haiti.

There have been more ambitious legislative initiatives in the 20 years since Sale to try to counter the damage, but none has been enacted into law. The most comprehensive, the Refugee Protection Act (RPA), championed by Senator Patrick Leahy (D-VT), would amend INA §241(b)(3) by including language that specifically addresses protection for aliens interdicted at sea. The RPA would add reference not only to the principle of nonrefoulement in refugee law, but in human rights law as well and would prohibit the return of people interdicted in international or US waters who express a fear of return until they have had the opportunity to be interviewed by an asylum officer to determine whether they have a well-founded fear of persecution or would be subjected to torture. The RPA also outlines procedures applicable for interdicted asylum seekers and indicates how the US should treat those found to be in need of international protection, saying such people should be given the opportunity to seek protection in another country, which could include the United States.

The earliest iteration of the RPA was introduced in the 106th Congress in 1999-2001 at the end of the Clinton administration. Over the years, the RPA has gained widespread NGO support, including from leading refugee and human rights organizations including Human Rights First and Human Rights Watch, the ACLU, the ABA, and many faith-based and secular refugee service and advocacy organizations. Introduced again in the 113th Congress, it is now pending before the Senate Judiciary Committee.

Conclusion

Refugee rights advocates in the United States had some success in convincing the Clinton Administration not to refrain from interdicting Haitians on the high seas and summarily repatriating them as a matter of policy, even though the Sale decision authorized it to do so. However, advocates failed to convince the US Congress to change the law to require the executive branch to honor the principle of nonrefoulement where it exercises jurisdiction or control outside US territory. Therefore, the George W. Bush Administration was able to revert to the practice of high seas interdiction and summary return of Haitians to a place where they were likely to face threats to their lives and freedom.

YLS Sale Symposium: Limiting the Damage–Global Refugee Rights Advocacy after Sale

by Bill Frelick

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program.]

The UN High Commissioner for Refugees (UNHCR) rightfully characterized the US Supreme Court’s Sale v. Haitian Centers Council judgment in 1993 as a “setback to modern international refugee law,” and for the next two decades nongovernmental organizations (NGOs) and UNHCR have been trying to limit the damage, pick up the pieces, and salvage what they could after that setback.

Refugee advocates saw immediately that the central idea of the Sale decision, that the principle of nonrefoulement does not apply extra-territorially, would give a giant push to a movement among asylum-destination states that was already well underway at the time of the decision to divert refugee flows, particularly of boat migrants. What made Sale particularly damaging was not only the judgment per se, but the fact that it came from the United States, the erstwhile leader of the modern refugee regime. From Europe to Australia, but no less so among less developed states in Asia and Africa, the US example of interdicting and pushing back Haitian asylum seekers, now blessed by the Supreme Court, looked like a green light for erecting barriers not only to prevent entry, but to operate unbound by the principle of nonrefoulement, cornerstone of international refugee law, on the high seas and in other legally grey areas, such as no-man’s lands between border crossings, where territorial jurisdiction is not always clear.

This essay will look at how NGOs and UNHCR, among others, worked to reiterate in international law fora the principle that the principle of nonrefoulement knows no territorial limits, to dissuade other jurisdictions from adopting the Sale interpretation, and to challenge other states that might try to follow the US lead in interdicting and summarily returning boat migrants. A companion essay looks specifically at NGO advocacy post Sale directed at the executive and legislative branches in the United States.

IACHR: The Inter-American Commission on Human Rights (IACHR) was an early battleground in this effort. A coalition of key Haitian-specific NGOs, including the National Coalition for Haitian Refugees, the Haitian Refugee Center in Miami, and the Washington Office on Haiti, joined with the Haitian Centre for Human Rights in Port-au-Prince to petition the IACHR to declare the US interdiction program a serious violation of internationally protected human rights. In 1997 in Haitian Centre for Human Rights et al. v. US, the IACHR found that US interdiction and summary return of Haitians contradicted the US’s nonrefoulement obligations under the Refugee Convention, which know “no geographical limitations” and that the US further breached article 27 of the American Declaration of the Rights and Duties of Man by preventing interdicted Haitians from exercising their right to seek and receive asylum in a foreign country.

UNHCR’s Executive Committee: In the years immediately following the Sale decision, another key battleground for refugee advocates was the UNHCR Executive Committee, where the United States had heretofore played a relatively progressive role with respect to articulating refugee rights principles. But in the post-Sale 1990s, the United States began to play a decidedly obstructive role on the interpretation of the nonrefoulment principle. (See here.)

Previously, ExCom conclusions on nonrefoulement going back to 1977 routinely said that the principle of nonrefoulment applies both at the border and within the territory of states. In the ExCom conclusions of 1996 and 1997- ExCom Conclusions 79 and 82–the “at the border” language was dropped.  An early draft of ExCom 79 had reiterated the standard “at the border” language, but the US delegation to the June 1996 standing committee opposed that language, calling it an overstatement of existing international refugee law. UNHCR wrote a letter to the US mission to the UN in Geneva saying that “no other state has adopted as a matter of law the circumscribed view of nonrefoulement advocated by the United States.” US advocates, including this writer, met with and corresponded with US government officials to argue that the position the US was adopting at the ExCom went even further than Sale, which had addressed high seas interdiction, but had not suggested that the principle of refoulement does not apply at the US border. In fact, Justice Stevens had said, “The INA offers these statutory protections [referring to §243(h) of the Immigration and Nationality Act] only to aliens who reside in or who have arrived at a border of the United States.”

A letter signed by 12 executives of NGOs, including the US Committee for Refugees, the International Rescue Committee, the US Catholic Conference, Church World Service, and Hebrew Immigrant Aid Society wrote to Anthony Lake, assistant to the President on National Security Affairs, saying: “What standing will the US State Department representatives have next time we plead with West African nations not to push back Liberian boat refugees?… What signal is the US sending to countries like Turkey and Iran who have recently refused entry to Kurdish persons fleeing Saddam Hussein’s secret police?”

The US NGOs were able to convince the State Department to include in its speech to the 1996 ExCom a “political statement” that referred to the principle of nonrefoulement as applying “from the border” of a state, but the State Department only consented to refer to this as a “humanitarian principle,” not a legal one.

With the turn of the millennium and to commemorate the 50th anniversary of the Refugee Convention, UNHCR convened a series of Global Consultations on International Protection intended to clarify and fill protection gaps in the Convention. UNHCR commissioned scholarly analyses and convened expert roundtables geared toward maritime interdiction and the principle of nonrefoulement, all of which set the stage for ExCom Conclusion 97 of October 2003 on Safeguards in Interception Measures. Although ExCom Conclusion 97 did not explicitly use the term nonrefoulement, it said that:

“interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground.”

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YLS Sale Symposium: The European Union Policy on Refugees and Its Effect on Eritrean Refugees

by Meron Estefanos

[Meron Estefanos is an Eritrean journalist, author and human rights activist.] 

Introduction

The last decade have witnessed an upsurge of Eritrean refugees taking to the Mediterranean Sea in search of a safety from repression and unlimited national service they are facing in their home country. However, in their flight from their home countries, these refuges have encountered several plights such as extortion by Eritrean and Sudanese security, sale to Rashaida human smugglers and traffickers, abduction while traveling or after arriving at a camp or their apartments. Out of desperation and to run away from the mistreatment on the hands of Libyan security, the refugees crowd into decrepit ships by unscrupulous smugglers for a huge amount of money. Consequently, the estimated number of Eritrean refugees drowned while trying to reach European ports has reached in thousands. There is a need to investigate the legal and practical reasons to the question as to why all these increasing numbers of would-be refugees and asylum seekers encountered serious danger at sea.

International Law and Refugees on High Seas

In accordance to the 1951 Refugee Convention, a refugee must not be forcibly returned to a country where his or her life or freedom would be endangered, or to a country where he or she would not be protected against such return. Under the Convention on Search and Rescue also stated that that there is a clear obligation of Seafarers to rescue a ship in distress and deliver the people to a place of safety. However, the Convention has failed to specify whether the nearest suitable port, the next regular port of call, the ship’s home port is considered as a place of safety. Since allowing refugee or asylum seekers who has been rescued at the sea to disembark on one’s territory brings about obligations on the receiving states, in most case states are reluctant to accept such responsibility and they are not under positive obligation to open their doors.

Experts in this area pointed out that the contradiction on the intersection of the law of sea and refugee law thus leaves sea actors in an awkward position. On the one hand, sea actors are obliged by law to rescue people in a distressed ship, while at the same time states are not obliged to accept the refugees rescued at sea. The issue remains unresolved as to who has the responsibility for accepting asylum seekers rescued at sea, processing their claims, and providing a place of safety. Thus, these loopholes under the international law provided countries to enter into different agreement to tighten their borders to protect refugees from entering their ports through the sea.

Italy, in the first place and other European countries after, had signed bilateral agreements with the Libyan authorities to intercept illegal boats and that effect. The 2003 and 2004 agreements had a programme to send back undocumented migrants to their home country. As the result of this agreement, hundreds of Eritreans are deported back to their country where they faced persecution. Most importantly, there was also a crucial agreement was entered on December 2007 between Italy and Libya in which the Italian government had found a loophole to return migrants who have already left the Libyan coast.

The other important agreement worth noting in relation to refugees at sea is the Dublin II Regulation. In relation to people rescued on sea, this regulation places obligation to conduct asylum claims of landing migrants in the hands of Border States of the EU. Thus, Malta feels disadvantaged by the Dublin II Regulation. It pushed that there must be a burden sharing agreement among EU member states concerning the issue asylum seekers. To address this issue of burden sharing, the European Union through its agency FRONTEX also pushed for co-operation agreement with Libya with the aim of patrolling Libyan waters and brings intercepted migrants back to Libya.

As the result of these these skewed agreements and policies which are contrary to EU refugee regimes and the principle of non-refoulment a cornerstone of the international refugee protection, many refugees became victims of many violations of human rights, and death in the sea. Many Eritreans were intercepted by Italian sea patrol and returned back to Libya where they faced imprisonment in harsh conditions for years.  Furthermore, hundreds of Eritreans who took the risk of crossing the sea out of desperation were exposed to a brutal death on the seas due to rough weather.

The Unintended Results of Tighter Control

The agreements entered between EU and Libya to tighten controls at borders and ports-of-entry had an e unintended consequence of on the Eritrean refugee who were trying to cross the sea to enter Europe and those who try to avoid Libya and find another route to other countries. The crimes perpetrated by security forces in Sudan, Libya, and Egypt have increased unprecedented. Abduction for extortion locally reaches an amount of $2000 – $5000. Refugees are also exposed to a forced trip north to be sold to renegade Egyptian Bedouins who torture the refugees mercilessly in order to get them to call relatives and obtain huge ransoms, typically in the $30,000 – $50,000 range per person. In the hands of the hijackers, Eritrean hostages quite often face torture usually involves burning with hot irons, electroshocks, dropping molten plastic on the skin from burning bags and bottles, exposure to the weather, sleep deprivation, continual rape of women, suspension upside down, and lack of food and water. Hostages are released if and when the ransom is paid. For those not paying, some are kept on as slaves, and some are killed and dumped in the desert. In most cases, after families have paid ransom, they get re-sold to other sets of traffickers, creating an almost interminable circle.

Moreover, there is a tendency by the host countries to categorically name all the refuges who are smuggled out to the country as economic migrants though it is know that Eritreans came from a repressive regime which doesn’t respect human rights.  It was also indicated that those who managed to go to Israel from Egypt also face humiliating and inhumane conditions. The government considers them as “work infiltrators” instead of refugees. The victims/survivors are seen as economic migrants and not as people deserving of protection. As a consequence, and particularly under the Anti-Infiltration Law, they are considered undesirable. This conflates asylum processing and security, and undermines refugee protection and assistance.

As long as there is violation of human rights and repression, people will flee their countries to seek a better life and asylum seekers will be found among those who encounter danger on the high seas. Thus, the European Union member states must: first, respect their refugee and human rights laws and their obligation under the international law; second, revise the Dublin II Regulation in a way that shifts the burden on the peripheral countries to all EU members’ states to end the human catastrophe in the high seas and victimization of refugees on the hands of traffickers and smugglers.

YLS Sale Symposium: Spatial Practice as Evidence and Advocacy

by Bradley Samuels

[Bradley Samuels is a Partner at SITU Research. All work described here was undertaken within the scope of Forensic Architecture, a European Research Council funded project based out of Goldsmiths Center for Research Architecture.]

Whether captured by citizen videos, orbiting satellites, or international monitoring agencies, violations of human rights are increasingly documented in visual and spatial registers. Consequently, architectural representations – plans, physical and digital models, geospatial maps and remote sensing – are finding an increasing role as evidence in tribunals and international courts. Today’s forums – be they diplomatic assemblies, fact-finding missions, or human rights reports – are beginning to incorporate spatial analysis as a robust component of humanitarian work. Space necessarily emerges here as a legal construct at the intersection of archive, analysis and artifice – a condition that makes artists and designers uniquely equipped to engage the spatial nuances of cases that previously were the exclusive territory of lawyers, activists and policy makers.  From territorial disputes through acts of genocide, this presentation explores the role of designers within contemporary legal and political forums through the application of its native tools and methodologies in an effort to posit new strategies for documenting, mapping, modeling and visualizing spatial components of international humanitarian law and advocacy.

As part of an investigation into emerging methodologies, a model of synthetic practice is explored here that presents the mining of disparate sources of data into coherent spatial narratives. Strategies are thus explored for combining data types across platforms and sources to leverage a wide range of digital tools to enable workflows between varied softwares – from parametric and geospatial to remote sensing and more.  In addition to the tools themselves, representational and rhetorical frameworks specific to both evidentiary, and advocacy contexts  also are unpacked and assessed in relation to the aforementioned instruments and methodologies.

Case Study: Non-Assistance at Sea
This case study was undertaken in collaboration with Charles Heller and Lorenzo Pezzani.

Among the many migrant vessels that attempted the journey to southern Italy during the 2011 crisis in Libya, one particular case, covered extensively in the international press involved the journey of 72 sub-Saharans fleeing Tripoli by boat on the early morning of March 27, 2011. After traveling about halfway to the Italian island of Lampedusa during their first day at sea the vessel ran out of fuel and subsequently drifted for the following 14 days without food or water until landing back on the Libyan coast. Only 9 of the migrants ultimately survived. In interviews following the event the survivors recounted a series of interactions they had with other actors while at sea. This included a military aircraft that flew over them, a distress call they placed via satellite telephone, two encounters with a military helicopter and an encounter with a military ship. The survivors’ testimonies thus clearly pointed to violations of International Maritime Law which obligates all parties encountering a vessel in distress to render assistance (article 98 of the United Nations Convention on the Law of the Sea).

In an effort to understand the events that led to this tragedy and to shed light on others like it, a report was undertaken aimed at a spatio-temporal reconstruction of the 15 day period between March 27th 2011 when the vessel left the Port of Tripoli until April 10, 2011 when it washed ashore in Zliten. A comprehensive textual analysis was undertaken in concert with the production of a series of visualizations, diagrams and figures. This work was an exercise in culling of disparate data (geospatial, meteorological, testimonial, military and other) that was ultimately recombined in an effort to assemble a coherent spatial narrative of the chain of events. The diversity of sources and types of data required the report to draw upon the methodologies and expertise of a variety of disciplines, among them remote sensing, cinematography, architecture and oceanography. The result is a synthetic spatial product that leverages increasing technological interoperability and cross disciplinary collaboration to help address what was certainly a humanitarian failure and, ultimately, also a legal question: who was responsible for these deaths? The ultimate destination of this report is a legal case being mounted against France for non-assistance of people in distress at sea. The goal of this work is both to hold accountable those individuals, states and organizations that failed to assist persons clearly in distress as well as to draw greater attention to the systemic and long standing issue of migrant deaths at sea in the Mediterranean.

YLS Sale Symposium: ‘Stopping the Boats’–Australia’s Appalling Example to the World

by Paul Power

[Paul Power is Chief Executive Officer of the Refugee Council of Australia and a member of the Steering Committee of the Asia Pacific Refugee Rights Network.]

In January 2014, a ranger in West Java reported to the Indonesian navy that a mysterious orange vessel had landed on a remote coral reef and about 60 people had disembarked and disappeared. The naval official who investigated first feared that the vessel may hold explosives but instead discovered that the main contents of this fully-enclosed and unsinkable lifeboat were discarded water bottles and food wrappings sourced from Malaysia. The Indonesian authorities worked out that the people who had arrived on the lifeboat were asylum seekers who had been forced on to it by Australian naval and customs officers after the boat they were on began to sink while being intercepted close to Christmas Island.

This incident was reported in the Australian media on February 1 and, in the weeks following, the Australian public learned that their government had purchased 12 of these lifeboats at a total cost of A$2.5 million (US$2.25 million). Since then, another two lifeboats have ended up in Indonesia and at least four seaworthy asylum seeker boats have been returned to Indonesia. The Australian Government is revealing little – refusing to answer many media questions about “operational matters” – but is proudly proclaiming that there have been no successful people smuggling ventures to Australia since 17 December 2013.

Tony Abbott’s conservative Liberal-National Coalition was elected in September 2013 promising to “stop the boats” of asylum seekers (people the Coalition refers to as “illegal maritime arrivals”) entering Australian waters from South and South-East Asia. For five years in opposition, the Coalition had campaigned ceaselessly against the Labor Government’s changes to policies John Howard’s Coalition Government (1996-2007) had introduced to stop asylum seekers on boats. Labor’s decision to end Temporary Protection Visas for asylum seekers who arrived by boat and to close the detention centre on Nauru which was central to the “Pacific Solution” had resulted, the Coalition argued, in 50,000 asylum seekers in five years entering Australia by sea without permission.

Following failed attempts to send asylum seekers to East Timor and Malaysia, in 2012 the Labor Government responded to political pressure from the Coalition and reintroduced the Pacific Solution detention arrangements in Nauru and Papua New Guinea (PNG). Not only did this fail to be the “circuit breaker” Labor wanted, asylum seeker arrivals increased to record levels (25,173 In the year to 30 June 2013), exceeding the capacity of the detention centres in Nauru, PNG and Australia. Processing of asylum claims was slowed considerably, hundreds of Sri Lankan boat arrivals were returned without a refugee status determination process and work rights were removed for asylum seekers released from detention from November 2012 while Labor searched for an even more punitive approach. On 19 July 2013, Labor’s newly reinstalled Prime Minister Kevin Rudd signed a “Regional Resettlement Arrangement” with PNG which would see all future boat arrivals sent there never to be allowed entry to Australia. In August, a similar arrangement was signed with Nauru.

The Coalition argued that these measures were not tough enough to secure Australia’s borders, promising a military style operation, headed by a three-star general, which would include turning back boats when safe to do so. Boat arrivals already in Australia would lose access to government-funded legal aid, be offered only temporary protection if found to be refugees and have no future access to family reunion.

Operation Sovereign Borders commenced when the Coalition Government was sworn in with most of its work hidden from public view. It allocated A$67 million to increased efforts to disrupt people smuggling activities with funds going to authorities in Indonesia, Malaysia and Sri Lanka. Media reports suggest that, in the first two months, these activities prevented 1151 asylum seekers from travelling to Australia. In October and early November, Australia turned back two boats with the involvement of Indonesia but a third boat turnback was aborted when word leaked out about it and Indonesia withdrew.

In mid November, the Indonesia-Australia relationship fell apart when material published by Edward Snowden revealed that in 2009 Australia had been listening in to the mobile phone conversations of the Indonesian President and his wife. Indonesia was deeply unhappy with Australia’s response to these revelations and declared that it would no longer cooperate with Australia on people smuggling matters.

Australia has clearly gone it alone since then and appears to have forced back seven boats since mid December, including boats which appear to have reached Australian territory. In mid January, the Australian Government admitted that its navy and customs boats had inadvertently entered Indonesian territorial waters on six occasions and apologised to Indonesia. It appears that these breaches occurred while boats of asylum seekers were being forced back.

Australia’s response to asylum seekers travelling directly from Sri Lanka is even more troubling, given that Australia is working actively with the government from which people are fleeing. UNHCR described Australia’s policy of excluding many Sri Lankans from access to the refugee determination process after a cursory initial interview and then returning them as “unfair and unreliable”. We at the Refugee Council of Australia have raised concerns about the possibility that Tamil asylum seekers have been refouled and expressed opposition to Australia’s decision to donate patrol boats to Sri Lanka and ignore the country’s human rights record.

While Australia’s interception activities breach standards in international law, domestic legal remedies are limited. Australia does not have a bill of rights in its constitution or in national legislation and rights under international law do not automatically become incorporated into Australian law. In 2001, the Federal Court confirmed the Australian Government’s power to exclude and expel non-citizens and to detain them for that purpose. In 2011, the High Court ruled that the Australian Government could not proceed with its plan to send asylum seekers to Malaysia because Section 198A of the Migration Act required it to ensure that adequate legal protections were in place. While the arrangement with Malaysia did not proceed, Section 198A was amended in 2012.

In a political environment in which both major political parties share similar views about the expulsion of boat arrivals, political advocacy is very difficult. However, a significant minority of Australians are becoming more and more vocal in their opposition to policies which they see causing harm to people seeking asylum. The greatest threat to the Government’s policies is likely to come from longer term public reaction to their unsustainability – the chaos which develops as a result of widespread long-term detention; the impracticality of refugees being settled sustainably in PNG, Nauru or even Cambodia (last week’s new thought bubble); and the damage caused diplomatically by Australia’s outrageous behaviour. As I endlessly repeat, the current issues facing Australia will not disappear until governments in Asia-Pacific begin to realise that collectively they have much more to gain by working together on a regional approach to refugee protection than by trying unilaterally to turn their backs on those in need.

YLS Sale Symposium: Immigration Detention and Status Determinations in Guantánamo Bay, Cuba

by Azadeh Dastyari

[Azadeh Dastyari is a Lecturer in the Faculty of Law at Monash University and an Associate of the Castan Centre for Human Rights Law.]

US President Barack Obama has stated that Guantánamo Bay is “a symbol around the world for an America that flouts the rule of law”. He was referring to the imprisonment of non-citizens in the ‘war on terror’ in the US Naval base that has garnered unprecedented international attention and has been the subject of much scholarship. The same quotation is also applicable to the much less known detention of refugees in the US Naval base in Guantánamo Bay, Cuba.

Under its Migrant Interdiction Program, the US intercepts sea vessels outside US waters and returns home individuals who are not authorized to enter the US. A very small percentage (less than 0.6% between 1996 and 2013) of the individuals intercepted at sea are identified by the US Coast Guard as having a credible fear of persecution or torture, and are transferred to Guantánamo Bay for further processing. In Guantánamo Bay, they are interviewed by a US Asylum Officer to determine if they have a well-founded fear of persecution (are refugees) or are more likely than not to be tortured if repatriated.

There are significant shortcomings with status determinations in Guantánamo Bay that place the US at risk of violating its non-refoulement obligations under Article 33(1) of the Convention Relating to the Status of Refugees (Refugee Convention) and Article 3 of the Convention gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The US does not provide individuals being interviewed access to legal counsel, the UNHCR or any other group or NGO. This may leave protection seekers unable to articulate their protection needs and thus fail to have their protected status recognized. The US also fails to provide any independent review of status determinations. Such a review would provide an additional safeguard against mistakes and assist in ensuring that no refugee or individual owed protection under Article 3 of the CAT is wrongly repatriated.

All individuals transferred to Guantánamo Bay under the US interdiction program are detained at the Migrant Operation Center. Detainees are separated into three categories: (i) individuals who are found not to have protection needs are labelled ‘non-protect migrants’ and are repatriated; (ii) asylum seekers whose status has not yet been determined are labelled ‘undetermined migrants’; and (iii) asylum seekers who have had their refugee status recognized by an Asylum Officer are labelled ‘protected migrants’ (as are individuals who are assessed as being more likely than not to be tortured if repatriated).

Individuals in the ‘protected migrants’ category remain in Guantánamo Bay until a third country can be found for their resettlement, which may take months or even years.  It is also worth noting the US government’s insistence on using the term ‘migrants’ when referring to people it has recognised as refugees in Guantánamo Bay. This stems in part from the US’ denial that its obligations under the Refugee Convention extend to its exercise of jurisdiction in Guantánamo Bay. The US views any protection it offers against refoulement to individuals at the Migrant Operation Center a gratuitous humanitarian act rather than what it truly is: the fulfilment of the US’ international legal obligations.

Immigration detention in Guantánamo Bay violates the US’ obligation to refrain from arbitrary detention under Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). In A v Australia, the Human Rights Committee considered the legality of Australia’s policy of mandatory immigration detention and stated that the factors necessitating detention must be ‘particular to the individual’ in order for it not to be characterized as arbitrary. In A v Australia Australia’s policy of mandatory immigration detention was found to be arbitrary because the reasons given for the detention (unlawful entry and fears of the detainee absconding if free) were not particular to the detainee in question. As with Australia’s policy of mandatory immigration detention, individuals transferred to Guantánamo Bay under the US interdiction program are subject to arbitrary detention because no assessment is made of the individual circumstances of each detainee and no alternatives to detention are considered.

Closely related to Article 9(1) of the ICCPR is Article 9(4) of the ICCPR. The Human Rights Committee has interpreted Article 9(4) to mean that detainees must have a right to appeal their detention in a court to determine the legality of the detention. Furthermore, a court reviewing detention must be empowered to order the release of the detainee if there is a violation of Article 9(1) of the ICCPR. The Committee has found that review of detention which is ‘limited to mere compliance of the detention with domestic law’ does not satisfy the requirements of Article 9(4) of the ICCPR.

The US Supreme Court has recently confirmed that non-citizens held in Guantánamo Bay must have access to the writ of habeas corpus. As such, immigration detainees should now have a right to appeal their detention in a US court to determine the legality of their detention. However, any review of detention in US courts is “limited to mere compliance of the detention with domestic law”  in violation of Article 9(4) of the ICCPR.

Despite diplomatic efforts, the US has little control over how long it may take to find a third country willing to resettle immigration detainees from Guantánamo Bay. As such, the most viable means of releasing detainees who cannot be repatriated (because they are owed protection from refoulement, are stateless or for some other reason) from arbitrary detention in Guantánamo Bay would be to transfer the detainees to the US mainland. However, despite access to habeas corpus, detainees are unlikely to be brought into the US mainland under any court challenge. The US Supreme Court has determined that it “is not within the province of any court, unless expressly authorized by [municipal] law, to review the determination of the political branch of the Government to exclude a given alien”. US courts have also construed restraints on the freedom of movement of non-citizens resulting from their denial of entry into the US not as unlawful detention, but as a permissible exercise of the executive’s plenary power to deny non-citizens entry. That is, the executive retains the right to decide if and when detainees in immigration detention in Guantánamo Bay can be released from their detention by being brought into the US. As such, the use of Guantánamo Bay as an element of the US’ interdiction program is likely to continue despite violations of the US’ international obligations. 

YLS Sale Symposium: The Politics of Interdiction and Haitian Advocacy

by Jocelyn McCalla

[Jocelyn McCalla was the Executive Director of the National Coalition for Haitian Rights from 1998 to 2006.]

For the purposes of this discussion I will restrict my remarks to the impact of Sale on Haitian immigration and advocacy; I will not be so bold as to extend them to the impact overall on all immigrants, refugees and asylum-seekers that the United States is dealing with. Secondly, I believe it is important to explore advocacy before Sale as well after Sale. One can’t comprehend what happened after 1993 without an examination of the 20 years of advocacy on behalf of Haitians that  preceded the Supreme Court decision, as well as the changing relationship between Haiti and the United States.

Haitian asylum-seekers began fleeing to the United States by sailboats in 1972. From  the very beginning, advocacy on behalf of Haitians in the United States has never been uniquely about rights to due process or access to the asylum system. It always had a dual edge: promoting rights on the domestic front were associated with the promotion of democratic rights in Haiti. Advocates had urged the United States to disassociate itself from the brutal Duvalier dictatorship. They held that it was that regime which caused Haitians to flee: end your support of the regime, side with democracy and refugee flow would dry up… They looked  to the Courts for relief and to the Court of public opinion for support.

The United States tried all sorts of forceful measures to stem Haitian refugee flow but couldn’t. Finally President Ronald Reagan issued the interdiction order authorizing interception at sea and forcible return. Additionally should the asylum-seekers find themselves close to US shores they needed to be within 3 nautical miles of the shore to access legal help. Interdiction worked: of the 23,000 Haitian refugees intercepted at sea, only six were deemed to have prima facie valid asylum claims. All others were returned.

Things came to a head in 1991 following the violent ouster of democratically-elected President Jean-Bertrand Aristide when a federal court judge in Miami triggered a scramble at the highest level of  the US government when it enjoined the US from returning refugees intercepted at sea. The high seas drama – interdiction, Guantanamo, injunction against interdiction — that followed Aristide’s ouster generated sizeable support for Haitian refugees and the Aristide administration.

Campaigning in 1992, Bill Clinton promised to overturn the interdiction policy. Clinton changed his mind shortly before being sworn in. He offered a quid pro quo: more energetic support for Aristide’s return and democracy in Haiti in exchange for keeping the status quo on interdiction, asylum screening and quarantining HIV positive Haitian asylum seekers at GTMO. (more…)

YLS Sale Symposium: Haitian Democracy, the Sale Decision and Haitian Refugees

by Ira Kurzban

[Ira Kurzban was counsel for the government of Haiti between 1991 until 2004 and was counsel of record in HRC v. Baker and over 10 other class action lawsuits involving Haitian refugees in the United States. Mr. Kurzban continues to serve  as personal counsel for Jean Bertrand Aristide, Haiti’s first democratically elected president.]

On September 30, 1991, the Haitian military, with the help of the Haitian elite, overthrew the democratically elected government of Jean Bertrand Aristide. President Aristide had won Haiti’s first free, fair and open election by 67% of the vote in a field of 17 candidates.

The violence of September 30, 1991 and its aftermath are well known. Estimates range from 1,000 to 3,000 military and paramilitary executions within the first 48 hours of the coup, many in front of the National Palace where supporters of Haitian democracy went to protest the overthrow of their President. Beyond the immediate executions were tens of thousands more over the next several years by DIA/CIA sponsored paramilitary organizations such as the Front for the Advancement and Progress of Haiti (FRAPH). Many of this is documented in trials such as the Raboteau trial where human rights violators were tried in a court of law and brought to justice for the first time in Haitian history.

A second coup, again with the funds and organization of the elite, but also the  support of the United States, French, and Canadian governments, occurred on February 29, 2004 during the second democratically-elected term of Jean Bertrand Aristide.  By the second coup, the Haitian army had been demobilized. One might call this coup, documented in detail in such works as Hallward’s Damming the Flood: Haiti, Aristide and the Politics of Containment  and Sprague, Paramilitarism and the Assault of Democracy in Haiti, as a slow-motion performance where a military wing went from town to town executing police and supporters of democracy while the elites simultaneously financially supported such executions while proclaimed their rights were being violated. The U.S., French and Canadian government contributed at a minimum to the finance and support of  gross disinformation campaigns, anti-democratic organizations, paramilitary groups and covert operations in the second coup.

The decision in Sale v. Haitian Centers Council, a travesty of international and domestic law, and basic human decency, had a significant effect on how Haitian refugees fleeing these two coups were treated. Pre-Sale the U.S. government’s actions were hesitant, unsure, chaotic and erratic. Post-Sale they were ruthless.

In October, 1991, almost  immediately after the coup, Haitians who supported democracy and supported President Aristide began fleeing Haiti in fear of their lives. By mid-October, Haitians were aboard vessels trying to get out of Haiti. By December there were more than 5,000 Haitians who had fled Haiti. At one point in the crisis there were more than 10,000 Haitians in the Guantanamo camps.

The initial response of the U.S post-September 30, 1991 was to decline to return Haitians to the imminent danger they faced. They were taken aboard Coast Guard cutters. The U.S. held them in the cutters and sought to obtain clearance for their trip to the U.S. or their return home.  The U.S. had signed a 1981 interdiction treaty with Haiti that required our country to at least provide  facial compliance with international law by granting “ asylum interviews” aboard Coast Guard cutters prior to forcibly returning refugees to Haiti. The numbers of Haitians on the cutters began to build up. Given the public executions in front of Haiti’s national palace the foreign policy establishment in the U.S. was too embarrassed pre –Sale to immediately return Haitians fleeing the country. By November hundreds of Haitians were simply sitting on the decks of cutters in the Caribbean.  The numbers became too large and by November 18, 1991 the Bush Administration directed the Coast Guard to take the refugees back to Haiti and ignore our 1981 Accords.

The next day the Haitian Refugee Center filed an action for declaratory and injunctive relief in the United States District Court in the Southern District of Florida. They also filed an application for a  temporary restraining order that would prevent the Coast Guard and the U.S. government from removing Haitians on the high seas from being returned. (more…)

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

by Tendayi Achiume, Jeffrey Kahn and Itamar Mann

[Tendayi Achiume is the Binder Teaching Fellow at University of California, Los Angeles (UCLA) School of Law. She received her JD from Yale Law School. Jeffrey Kahn is an Academy Postdoctoral Scholar at the Harvard Academy for International and Area Studies. He received his JD from Yale Law School and his PhD in anthropology from the University of Chicago. Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He received his LLM from and is a JSD candidate at Yale Law School.]

This past week, a group of scholars, practitioners, and policymakers gathered at Yale Law School to discuss the rise of maritime migrant interdiction as a border-policing paradigm of global significance. Thanks to the generosity of the editors at Opinio Juris, this online symposium will make those discussions available to a wider audience. As the organizers of the conference, it is our great honor to introduce this exciting topic and the insightful posts that follow.

Maritime migrant interdiction is now a key border enforcement tool for the United States, the European Union, and Australia. The U.S. developed the model in the early 1980s as a means of preventing Haitian asylum seekers from reaching U.S. Shores. In 1992, the administration of George H. W. Bush abandoned the past practice of screening Haitians for refugee characteristics and instituted a direct return policy that authorized the repatriation of all interdicted Haitians regardless of whether they would be persecuted in Haiti. In 1993, the United States Supreme Court gave its imprimatur to this new framework with its Sale v. Haitian Centers Council, Inc. decision, holding that the United States was not bound by the U.N. Refugee Convention when processing Haitians interdicted at sea. As scholars have noted, Sale later became a key point of reference for other countries seeking to legitimize their own adoption of U.S.-style maritime migrant interdiction programs.

The history of interdiction since Sale provides a fascinating and troubling example of policy diffusion on a vast scale. The statistics on migration by sea make clear why the highly flexible interdiction framework adopted by the United States would become so appealing to the European Union and Australia in later decades. Unauthorized border crossing into the European Union has reached its highest levels since record-keeping began in 2008, and the majority of these migrants arrive by sea. Approximately 17,000 unauthorized boat migrants arrived in Australia in 2012, a staggering increase from previous years.

Migrant interdiction and migration by sea also triggers its own escalating dynamic. The highly visible tragedies that often result from these dangerous voyages and the bad publicity they spawn spur more intensive policing operations, which, paradoxically, lead to greater risk-taking by those migrants attempting to penetrate intensified maritime border defenses. We were recently reminded of this sad fact when more than three hundred African migrants drowned off of the Italian island of Lampedusa in October and more than thirty Haitian migrants died off of the Bahamas in November of this past year. These terrible events point to the complicated and deadly reality that lies at the intersection of both maritime border policing and maritime border crossing.

Each of us has approached issues of international refugee law, the rise of migrant interdiction, and the implications of the transnational dialectics it creates in our own academic work. Drawing inspiration from our research and advocacy, we set out to structure the conference so that it would provide an opportunity to delve into questions of eroding national sovereignty, debates over the balance between national security concerns and commitments to human rights norms, and struggles over the shifting geographies of judicial constraint and executive power. We hoped to highlight the deeper histories in which migrant interdiction is rooted, the broader international law landscape in which it first emerged and in which it is currently embedded, the ongoing transnational litigation and advocacy approaches various actors have developed to address it, and the vexing questions it raises with regard to issues of human rights and national security. As should become clear from the posts that will follow this introduction, we selected panel themes and chose panelists to facilitate the exploration of these topics.

We are privileged to have posts from many of our distinguished panelists and from our two esteemed keynote speakers, Alexander Aleinikoff, U.N. Deputy High Commissioner for Refugees, and Harold Koh, the Sterling Professor of International Law at Yale Law School. As you will note from each panelist’s bio, some have been grappling with issues of migrant interdiction since the 1980s while others are newer to the scene, wrestling with the more recent forms of maritime border-policing that have developed in Europe and Australia over the past decade. Each brings a unique perspective to the table, and we hope that you find their contributions as illuminating and provocative as we have.