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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.

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…)

Events and Announcements: March 16, 2014

by Jessica Dorsey

Events

  • ALMA has recently published its invitation to the next session of the Joint IHL Forum that will take place on Wednesday, March 26, at the IDC – “Young Researchers Forum
    This is the highlight of a few months process in which four students from four different local academic institutions worked on academic papers under the supervision of designated ALMA members.
  • The Third Annual Conference of the Cambridge Journal of International and Comparative Law (CJICL) registration is now open, and can be accessed here.

Announcements

  • TDM has just announced its publication of TDM 2 (2014) – The New Frontiers of Cultural Law: Intangible Heritage Disputes. Editors Dr. Valentina Vadi (Lancaster University) and Prof. Hildegard Schneider (Maastricht University) prepared and edited this issue. It follows and complements TDM 5 (2013) – Art and Heritage Disputes in International and Comparative Law. Taken together the two special issues adopt a holistic approach to cultural heritage, considering the dynamic link or dialectical relationship between the tangible and intangible heritage. As intangible heritage is made up of processes and practices-its fate depending on oral transmission and being closely related to its creators and context-it may need ad hoc safeguarding approaches and methodologies. In particular, this special issue aims to explore some examples of intangible heritage related disputes, highlight the main tenets of the Convention for the safeguarding of the Intangible Cultural Heritage, and suggest avenues for ways forward and further research.

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

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.

(more…)

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…)

Weekend Roundup: March 9-15, 2014

by An Hertogen

We had a busy week on the blog, so if you haven’t been able to keep track of it all, here is a summary of what happened.

We continued the Ukraine Insta-symposium with posts by Remy Jorritsma on the application of IHL to the conflict between Russia and Ukraine and by Sina Etezazian on Russia’s right to protect its citizens in the Crimea and Ukraine’s right to use of force in self-defence. A post by Greg Fox and one by Tali Kolesov Har-Oz and Ori Pomson discussed the limits of government consent to intervention, while Robert McCorquodale discussed Crimean self-determination and the international legal effect of a declaration of independence. Ilya Nuzov provided a transitional justice perspective; and Rhodri Khadri examined if any useful lessons for the Crimean crisis can be drawn from the solution to the Åland Islands. Julian responded to Boris Mamlyuk’s critique on US international law scholars by exploring Russia’s position.

A second symposium this week, introduced here by Tendayi Achiume, Jeffrey Kahn and Itamar Mann, summarized the presentations of last weekend’s symposium at Yale Law School on the rise of maritime migrant interdictions twenty years after the US Supreme Court’s Sale judgment. Ira Kurzban described the events leading up to the Sale judgment and Jocelyn Mccalla discussed the impact of Sale on Haitian immigration and advocacy. In a two part post, Bill Frelick discussed the international and US domestic initiatives to counter Sale‘s implication that the non-refoulement principle does not apply extra-territorially. Azadeh Dastyari put the spotlight on the lesser known use of Guantanamo Bay for the detention of refugees. Maritime migrant interdictions are not a uniquely US phenomenon, as demonstrated by Paul Power’s discussion of Australia’s “Stopping the Boats” policy and Meron Estefanos’ post about the impact of the EU’s refugee policy on Eritrean refugees. Bradley Samuels used the example of non-assistance at sea in the Mediterranean to discuss the increasing reliance on architectural representations of space as evidence in litigation.The symposium will continue next week, so stay tuned!

In other posts, Kristen Boon updated us on the latest developments in the Haiti cholera case, and John Knox, the UN Independent Expert on Human Rights and the Environment, guest posted about the mapping report he presented to the UN Human Rights Council earlier this week. Despite their win, Kevin declared the Katanga conviction a difficult day in the office for the OTP. Kevin also asked us to identify a historical figure in a picture of the ’70s, and was disgusted by a phishing e-mail preying the situation in Syria.

Finally, Jessica compiled the weekly news and I listed events and announcements.

Many thanks to our guest contributors and to all our readers for the lively discussions this week!

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.”

(more…)

Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

Winding-Up the Ukraine Insta-Symposium

by Chris Borgen and Roger Alford

Our thanks to all who have contributed to the conversation here on Opinio Juris about the many legal issues related to the situation in Ukraine.

Over the past week we have had guest posts on topics such as Russian rule-breaking as power politics, the use of force under international law, the international humanitarian law issues involved in the Crimean crisis, the limits of intervention by invitation (1, 2), the law of self-determination, lessons from the Aaland Islands dispute, the Russian/ Ukrainian Black Sea status of forces agreement, and transitional justice in Ukraine and Russia.

And, that is not to mention all the posts by the regular Opinio Juris bloggers on topics such as the Crimean referendum (1, 2), Russia’s “citizenship power play,”  the Presidential authority for visa restrictions, whether Yanukovich could request Russian intervention, and the efficacy-or lack thereof-of international law (1, 2, 3).

Further, still, in addition to the main posts, we have dozens of reader comments that have been interesting, enlightening, and informative. Thank you!

At this point,  if there are any more submissions for potential posts, we need to receive them by 3:00 pm Friday (US Eastern Time) so that those selected can be posted this weekend.

Although this symposium is drawing to a close, we at Opinio Juris will continue writing about the ongoing issues in Ukraine.

Once again, thank you, everyone, for participating in this discussion and contributing to our understanding of the situation in Ukraine.

We hope you will continue to participate as we continue exploring the international legal issues in the conflict over Ukraine’s future.

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.