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Events and Announcements: April 20, 2014

by An Hertogen

Call for Papers

  • The European Society of International Law Interest Group on Peace and Security (ESIL IGPS) and the Research Project on Shared Responsibility in International Law (SHARES Project) organize a joint symposium to be held in conjunction with the 10th ESIL Anniversary Conference in Vienna, Austria, on September 3, 2014. The symposium is entitled “The Changing Nature of Peacekeeping and the Challenges for Jus ad Bellum, Jus in Bello and Human Rights” and it will discuss whether there indeed is a major shift in UN peacekeeping practice and will explore important questions of international law raised by these new practices. We would like to invite candidates to submit a 500 words abstract proposal via email to Prof. Theodore Christakis and Dr. Ilias Plakokefalos by May 4. The proposal should also include the author’s name and affiliation, the author’s brief CV and the author’s contact details, in a single pdf document. Successful applicants will be informed by May 15. More information is available here.

Events

  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) invite you to the next session of the Joint International Humanitarian Law Forum on April 30, 2014, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) in the IDC. Prof. Eugene KontorovichDr. Daphne Richemond-Barak and Dr. Ziv Bohrer will discuss the Crimean Peninsula & IHL. Following the presentations, there will be an open round table discussion.
  • Professor Harold Koh will be giving this year’s Clarendon lectures at the University of Oxford, speaking about Law and Globalization. The lectures are open to everyone and will take place over three evenings: Tuesday May 6, 5-6:30pm in the Pichette Auditorium, Pembroke College, followed by a drinks reception in the foyer by the auditorium 6:30-7:30pm; Thursday May 8, 5-6:30pm, The Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building: Tuesday May 13, 5-6:30pm, The Gulbenkian lecture theatre, Faculty of Law, St Cross Building.
  • The T.M.C. Asser Instituut is offering five different summer programmes this summer: June 2 – 25: Summer Law Program on International Criminal Law and International Legal Approaches to Terrorism; June 30 – July 4: Summer Programme on International Sports Law: Is Sport Playing by the Rule of Law?; August 25 – 29: Advanced Summer Programme on Countering Terrorism in the Post 9/11 World: Legal Challenges and Dilemmas; August 25 – 29: Summer Programme on International & European Environmental Law: Facing the Challenges?(New in 2014!); September 1 – 5: Summer Programme on Disarmament & Non-Proliferation of Weapons of Mass Destruction in a Changing World (Scholarships available!). More information is available here.
  • The Interest Group on Migration and Refugee Law of the European Society of International Law, the Centre for Migration Law of the Radboud University Nijmegen and the Amsterdam Center for International Law of the University of Amsterdam are pleased to announce Heading to Europe: Safe Haven or Graveyard?, a panel discussion on migration by sea in the Mediterranean. The panel discussion will be held on 16 May 2014 at the Radboud University Nijmegen. For more information and registration visit the website.
  • The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Sixteenth Summer Session, “International Criminal Law at the First World War Centenary – From Consolidation Towards Confrontation?”, Sunday 3 to Friday 15 August 2014. The SLS is a two-week summer programme aimed at postgraduate students, young academics and practitioners. This year’s session will scrutinize principles and procedures of international criminal law, their origins and contemporary challenges to their enforcement. In this context, there will be a special thematic focus on the principle of irrelevance of official capacity under international customary law and the Rome Statute of the International Criminal Court (ICC) as well as on controversies stemming from the Court’s cases against sitting heads of States, proposed changes to the Rome Statute and policy considerations determining the selection of situations and cases. Other topics include the Kampala amendments to the Rome Statute, the rights of the defence in international criminal proceedings, the role of international investigation commissions, as well as recent decisions and judgements of the ICC and the ICTY. Further information on the academic programme and a preliminary list of speakers are available here. The application period ends on Friday May 9, 2014.
  • The Geneva Academy of International Humanitarian Law and Human Rights is offering an International Weapons Laws Course, in Geneva from August 4-29, 2014. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Bolivia´s Reasonably Strong ICJ Case against Chile

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, a Professor at Universidad del Valle and Universidad de los Andes and an associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

A few days after Bolivia instituted proceedings against Chile before the International Court of Justice, Julian Ku wrote a post here on Opinio Juris entitled “Bolivia´s Ridiculously Weak ICJ Case against Chile”.  His main claim?  “This case looks like a sure loser on admissibility; it looks like it is going to be a major waste of time for the ICJ”.

In this post, I would like to offer a rebuttal to Mr Ku’s comments and to explain why Bolivia’s case is not only not a ‘sure loser’ but is reasonably strong.  The case concerns Bolivia’s request that the Court declare and adjudge that “Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” because “Chile has breached the said obligation”. Specifically, for that reason, “Chile must perform the said obligation with good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean”.

Mr Ku develops two mains arguments to support his opinion: (1) that there is no compulsory ICJ jurisdiction under the Bogota Treaty; and (2) that there is no specific obligation on Chile to negotiate an agreement granting Bolivia an access to the Pacific Ocean because the language of the declarations made by Chilean authorities with the purpose of giving Bolivia back sovereign access to the sea were “non-obligatory”.

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Guest Post: The Russia-Crimea Treaty

by Greg 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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Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

by Julian Ku

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….

Wondering About the Legality of U.S. Overseas Spying? Tune Into Privacy and Civil Liberties Oversight Board Hearing

by Julian Ku

For those readers who are interested in the legal aspects of the U.S. government’s wide-ranging overseas intelligence gathering program, C-Span 2 will be broadcasting portions of today’s oversight hearing of the Privacy and Civil Liberties Oversight Board.  The PCLOB is a federal watchdog agency charged with reviewing the U.S. government’s intelligence efforts in light of privacy and civil liberties concerns (a preview of witness testimony can be found here).  Lawyers from the key federal agencies (FBI, CIA, NSA), as well as legal scholars and NGOs will be participating.  I will be speaking on the second panel focusing on constitutional and statutory issues related to Section 702 of the FISA Amendments Act of 2008, which creates procedures for limiting the targeting of U.S. citizens overseas’ communications. (Spoiler Alert: I’m pretty OK with the constitutionality of U.S. overseas electronic surveillance).  In the afternoon, friends of the blog like Eric Posner and John Bellinger will be discussing international aspects of these programs. Should be interesting.

 

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)

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.

Ukraine Insta-Symposium: Potential Non-recognition of Crimea

by Anna Dolidze

[ Dr. Anna Dolidze is an Assistant Professor in the Faculty of Law, the University of Western Ontario.]

On Sunday the inhabitants of the Ukrainian Autonomous Republic of Crimea voted in a referendum on whether Crimea should become part of the Russian Federation or regain the status under the 1992 Constitution as part of Ukraine. A March 11, 2014 Declaration of Independence by the Parliament of the Autonomous Republic of Crimea preceded the referendum. The Declaration specifically referenced the International Court of Justice’s decision in relation to the status of Kosovo. According to the preliminary results published by the Crimean authorities about 95% of voters voted in favor of the union with Russia, while the overall turnout was 81.%.

While the results were celebrated in Simferopol, Russia’s President Vladimir Putin signed a decree recognizing Crimea’s independence. However, this post argues that the Crimean Republic might become subject to the doctrine of non-recognition. The initial evidence suggests that it might follow the footsteps of other self- declared independent entities, including Abkhazia, South Ossetia, and Turkish Republic of North Cyprus (TRNC) that have declared independence, yet failed to attain statehood partly due to the application of the doctrine.

As Thomas Grant explains in his book The Recognition of States, Law and Practice in Debate and Evolution recognition has served international society as a device by which to respond to changes in the world public order and the emergence of new states. In the process of the disintegration of the Union of the Soviet Socialist Republics (USSR) and the Federal Republic of Yugoslavia (FRY) the principles on recognition acquired renewed importance. Professor John Dugard points out that the recognition by other states remains important even to those who share prevalence of declaratory doctrine of recognition, which maintains that a political community that meets the requirements of statehood automatically qualifies as a “State” and that recognition by other states simply acknowledges “as a fact something which has hitherto been uncertain.” For example, although the Supreme Court of Canada, discussing the legality of possible secession by Quebec from Canada, adopted the declaratory theory of recognition, it emphasized “the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.” Although recognition of states is primarily a bi-lateral affair, as Professor John Cerone notes, collective recognition or non-recognition by an overwhelming majority of states may impact the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria on statehood.The admission to the United Nations and the European Union (the European Communities previously) has been acknowledged as a form of collective recognition that significantly influences the statehood status.

The recognition of Kosovo is an interesting example in this regard. It might be argued that the recognition of Kosovo bears the traits of collective recognition, but in fact it remains to be an individualized affair among states….(Continue Reading)

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (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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Weekly News Wrap: Monday, March 17, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

  • China warned the Philippines to abandon a disputed shoal in the South China Sea after Manila said it planned to challenge a Chinese naval blockade of the area by sending supplies to its troops stationed there.
  • The US and Japan made some progress on resolving a deadlock over tariffs on farm and industrial exports which is dragging on a wider Pacific trade deal, a senior Japanese official said on Wednesday.

Americas

Middle East

  • A suicide car bomb attack has killed at least four people in a Hezbollah-dominated area of the Bekaa Valley in Lebanon, near the border with Syria.
  • Israel is to allow the resumption of diesel deliveries into Gaza, a day after the territory’s sole power plant stopped working due to a lack of fuel, officials have said.
  • Palestinian fighters in the Gaza Strip have fired more rockets at Israeli cities in a third day of a cross-border flare-up.
  • The United Arab Emirates summoned Iraq’s ambassador to protest against his prime minister’s accusations that its ally Saudi Arabia was funding terrorism, state news agency WAM reported, while Bahrain called the comments “irresponsible.”

Europe

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…)