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

[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 50^th 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.”

Slowly, advocacy in Geneva and Washington built to the point where the US delegates to the ExCom were no longer as obstructive as they had been in the mid-90s. By 2003, they did not obstruct ExCom Conclusion 97 from articulating the principle of nonrefoulement without geographical limitation, which is particularly noteworthy insofar as that conclusion directly addressed safeguards during interception measures.

The Palermo Protocol on Smuggling: On another front, governments in the late-1990s were focusing both political and legal attention to the issues of smuggling and trafficking, which many refugee rights advocates saw as migration control measures that would make it more difficult for asylum seekers to move irregularly to escape their home countries and seek asylum, in part, by promoting cooperation between countries of embarkation and destination to prevent and suppress people smuggling. One element of what some refugee advocates were calling the criminalization of migrants and asylum seekers was the Protocol against the Smuggling of Migrants by Land, Sea and Air of 2000, a supplement to the UN Convention against Transnational Organized Crime, which was concluded in Palermo in 2000. During the Palermo Protocol’s drafting process, NGOs, UNHCR, and the UN High Commissioner for Human Rights (UNHCHR) raised concerns that early drafts of the protocol were too exclusively enforcement driven and failed to make explicit the universality of the principle of nonrefoulement, including for asylum seekers interdicted on the high seas.

The UNHCHR’s advisor or trafficking, who followed the Palermo drafting process closely, said that “the Inter-Agency Group and the NGOs clearly influenced the decision of states to include/adopt the…specific references to international law, including international human rights law, refuge law, and humanitarian law.” The “savings clause” in Palermo Protocol on smuggling was strengthened from the first draft, in which it acted essentially as a loophole for states to evade nonrefoulement responsibilities to the final draft, where it explicitly referred to the rights of individuals under international human rights law and humanitarian law, as well as the Refugee Convention and its protocol, and the principle of nonrefoulement as contained therein.

UNHCR and UN Human Rights Bodies: UNHCR, which had submitted an amicus curiae brief on behalf of the Sale plaintiffs, remained steadfast in its opposition to the Sale interpretation of obligations under the Refugee Convention. In his 2001 Note on International Protection, the High Commissioner said that the principle of nonrefoulement laid down in article 33 of the Refugee Convention “has come to be considered a rule of customary international law binding on all States,” and said that it ”encompasses any measure attributable to a State which could have the effect of returning any asylum-seeker or refugee to the frontiers of territories where his life or freedom would be threatened, or where he or she would be at risk of persecution. This includes rejection at the frontier, interception and indirect refoulement, whether or an individual seeking asylum or in situations of mass influx.”

Other UN bodies have further isolated the Sale interpretation of the principle of nonrefoulement. The Committee Against Torture (CAT) in 2006 in its second report on the US, said that the nonrefoulement obligation applies “wherever located in the world.” In General Comment No. 31 in 2004, the UN Human Rights Committee said that states must respect the principle of nonrefoulement “for all persons in their territory and all persons under their control.”

ECtHR: The treatment of maritime boat migrants remained a contentious and sensitive issue for the 20 years after Sale. Both UNHCR and NGOs intervened on numerous occasions in many places to prevent states from summarily returning boat migrants without giving them an opportunity to make claims for protection. Among the most important of these—and the one with the most positive outcome as a counterweight to Sale—was the response in advocacy and litigation to Italy’s push-back of Eritrean and Somali asylum seekers to Libya in 2009, culminating in a case before the European Court of Human Rights (ECtHR), Hirsi and Others v. Italy.

In May 2009, the Italian government initiated what it called a “push-back policy” to return third-country maritime migrants who had embarked from Libya back to Libya without carrying out any assessment of whether any of the migrants were in need of international protection before being returned to Libya.

As in the case of Haitian interdiction and summary return, NGOs played a critical role in fact-finding by documenting abysmal treatment of migrants who were returned to Libya as well as the absence of any legal framework for identifying and protecting refugees, and the Hirsi decision cited reports by Human Rights Watch and Amnesty International on conditions asylum seekers and migrants faced upon return to Libya.

UNHCR and many human rights groups, including Human Rights Watch, the Centre for Advice on Individual Rights in Europe (the Aire Centre), Amnesty International, the International Federation for Human Rights (FIDH), and the Columbia Law School Human Rights Clinic submitted third-party interventions to the ECtHR as it considered the Italian push-back policy in Hirsi and Others v. Italy.

Citing the IACHR, UNHCR, CAT, as well as a host of legal scholars, the ECtHR said, “The fact that some supreme courts, such as the United States Supreme Court and the High Court of Australia, have reached different conclusions is not decisive.”

The ECtHR found that “the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of sovereign authority, the effect of which is to prevent the migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction.”  The ECtHR ruled unanimously that the Hirsi applicants were within the jurisdiction of Italy and further held unanimously that Italy violated article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms by exposing the applicants to the risk of ill-treatment in Libya and the risk of being repatriated to Somalia and Eritrea.

Conclusion

While there is no hiding the fact that Sale was, as UNHCR said at the time, a setback to modern international refugee law, concerted advocacy and litigation involving large numbers of NGOs and UNHCR has been able to limit the damage to a large degree. While battles continue on many fronts, particularly with continuing interdiction of Haitians by the US government in collusion with the Bahamas, and by Australia’s diversion of maritime asylum seekers, the practice of interdiction and summary return has not been widely adopted and, in fact, has been rejected in Europe.