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

[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.

“Creative legal thinking” and international refugee law

The restrictive policies on these issues stand in some contrast to the repeated rhetorical support to the refugee regime by the very same governments. Different explanations for these developments have been forwarded by refugee scholars, including lack of political support, lack of respect for international refugee law and the politicisation of refugee law itself. To the present author, they reflect a more general trend that states are developing a much more instrumental relationship to international law than traditionally assumed. This is not tantamount to a rejection of international law as such – far from it. In most cases, moves to shift migration control to the high seas or foreign territory to avoid incurring correlate legal obligations inter alia presume that such norms do actually, under ordinary circumstances, affect state action. If governments felt they could simply disrespect international refugee law ‘at home’, then there would be little need to engage in cumbersome and often costly schemes to shift migration control elsewhere.

More correctly, the various migration control schemes should be seen as political attempts towards “creative legal thinking”. The policies all exploit areas where the applicability or division of legal norms is contested or institutional invisibility or distancing hamper the legal process. Interception in international waters and cooperation with third state authorities and private agents are exactly what makes it possible for some states to avoid protection obligations, but nonetheless still attempt to formally present themselves as countries abiding by their international law commitments.

Perhaps the best way to describe what is going on would be to draw a domestic analogy. Governments pursuing deterrence policies behave a bit like self-interested taxpayers. The obligation itself, that taxes are due, is seldom denied. Yet, rather than paying up, resourceful individuals and companies are more likely to seek creative ways to find the loop holes and possibilities within the legal framework to minimize obligations. Just like individuals or corporations that carefully relocate income to offshore bank accounts in order to circumvent national tax laws, governments are thus themselves increasingly engaging in extraterritorialisation, international cooperation, and privatisation in order to distance the exercise of power from the state itself and their obligations under international refugee and human rights law.

The response of refugee and human rights law

In light of the above, more critical or pessimistic refugee lawyers may be tempted to conclude that international refugee law is either obsolete or so inherently fungible and open to contestation that states are able to justify and validate just about any policy in legal terms. Yet, the fact that even binding international obligations are ‘open-textured’ not only affords states a certain interpretative scope or sovereign ‘margin of appreciation’, it equally works to assist the continued effectiveness of international law from the perspective of international institutions, judiciaries and refugee advocates. Looking at Sale’s legacy in the interpretation of international refugee law, there have been significant developments to reign in these new practices.

Many of the ‘first generation’ deterrence policies have been successfully challenged by domestic or international courts, forcing states to abandon or substantially adjust their policies. Decades before the Sale decision, refugee lawyers struggled to ensure that the non-refoulement principle also applied to refugees standing on the border, but not yet within the territory of the asylum state. Similarly, both national and regional case law has firmly established that states cannot delimit the geographical scope of obligations under international law at will by excising parts of their territory or designating so-called ‘international zones’.

In terms of extraterritorial application, the Sale decision has been roundly criticised, and there is little to suggest that it set significant judicial precedent outside the United States. The Inter-American Commission of Human Rights specifically rejected the view taken by the Supreme Court, and instead gave support to the interpretation set out by UNHCR in its amicus curiae to the Sale case. The English Court of Appeal chose to treat Sale as ‘wrongly decided; it certainly offends one’s sense of fairness.’

More recently, the European Court of Human Rights in Hirsi v. Italy unanimously found that push-backs on the high seas violated Art. 3 of the European Convention and equally suggested that international refugee law, notably the principle of non-refoulement, has to be observed when carrying out operations on the high seas. While the United States formally upholds a strictly territorial interpretation of the 1951 Refugee Convention, the overwhelming consensus today is that the non-refoulement principle applies wherever states exercise jurisdiction. Extraterritorial jurisdiction is equally an area of human rights law in dynamic development, and refugee lawyers may thus benefit from judgments in a range of other cases concerning transnational law enforcement.

A game of law and politics

In conclusion, Sale’s legacy could be perhaps best described as a game of cat and mouse between law and politics. On the one hand, states have shown remarkable creativity in designing policies to deliberately eclipse or shift responsibility under international refugee and human rights law. On the other hand, in testing the limits and reach of such responsibility, cases and soft law has equally pushed our interpretation forward. This is not a perfect process, but the interpretation of the 1951 Convention and international human rights law in general have consistently responded, if often belatedly, to new policy developments. This has not put a stop to deterrence, however. On the contrary, it seems to help drive policy innovation, as interdiction schemes are tweaked and refined in light of normative developments. This co-evolution is thus likely to continue, and both domestic and international judiciaries will undoubtedly be faced with Sale-like cases in the coming years as well.