YLS Sale Symposium: International Protection Challenges Occasioned by Maritime Movement of Asylum-Seekers

[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).

United States interdiction practices

The United States has interdicted boats in the Caribbean for more than three decades.  (This Conference has explored at length the history and legacy of the U.S. Supreme Court’s 1994 decision in Sale v. H.C.C., which held that the Refugee Convention does not apply to U.S. interdiction actions undertaken on the high seas.)  Intercepted Cuban migrants have received special treatment under U.S. policy.  Each migrant is given “credible fear” screening, and those found to qualify are brought to Guantanamo for full assessment of their claims.  If they are found to merit protection, the U.S. seeks resettlement for them in third countries. (Nonetheless, only about 5% of Cubans are “screened in.”)

All other migrants—predominantly Haitians—are returned without process to their place of embarkation (or country of origin) unless they demonstrate a “manifestation of fear.”

At the 2011 Ministerial Meeting commemorating the 60^th anniversary of the Refugee Convention, the US pledged “to implement updated training to U.S. Coast Guard (USCG) law enforcement personnel participating in migrant interdiction operations,” with the training to focus on “identifying manifestations of fear by interdicted migrants.”

UNHCR has viewed the training video, which was prepared by the Department of Homeland Security’s U.S. Citizenship and Immigrant Services (USCIS). The “manifestation of fear” approach remains, placing the burden on the individual to undertake behavior that would trigger screening. Helpfully, the new required training that makes clear that a manifestation of fear could be signaled in a wide variety of ways, including expression of happiness for being rescued, withdrawal, sadness, panic, screaming, and passing notes.  But while the described range of “manifestations” are virtually all-embracing, the approach captures virtually no Haitian, even for a credible fear interview. According to USCIS and USCG, out of the 445 Haitians interdicted by the U.S. in FY 2013, only one interdicted Haitian was given a credible fear interview and that person failed.  When one compares these figures with the percent of Haitian claimants already within the U.S. who are recognized as refugees following a full assessment of their case—roughly 50%—the ineffectiveness of the ship-board process is manifest.

Migrants interdicted in the territorial waters of a state with which the United States has a treaty relating to maritime enforcement do not even receive the limited protections of the “manifestation of fear” test.  They are summarily returned to their place of embarkation without screening.  These bilateral agreements may require protection screening.  For example, both Article 11 of the 2004 U.S.-Bahamas agreement and Article 10 of the 2003 U.S.- Dominican Republic agreement provide that “no person found on board a suspect vessel shall be involuntarily returned to a country in which . . . that person has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, except on grounds recognized as precluding protection as a refugee under the Refugee Convention and Protocol.”

However, UNHCR has no evidence that these provisions are monitored or enforced or that penalties have been assessed failures of compliance.  We have therefore expressed concern that individuals are being returned to states by United States authorities where there is no protection screening and no protection offered, and individuals may either be summarily returned to their country of origin or remain in detention for prolonged periods.

To summarize, regarding U.S. interdiction policies, the following practices are advisable to ensure compliance with applicable refugee and human rights norms (pending the establishment of a broader regional comprehensive plan):

• Individuals interdicted at sea should be screened for international protection needs on board the Coast Guard vessel by USCIS and appropriately referred for further assessment and protection;
• Agreements between the U.S. and a Caribbean island state or territory should be monitored and enforced to ensure that individuals interdicted by the U.S. and returned to such state or territory are screened for international protection and referred as appropriate for assessment and protection.
• Training materials for the USCG should be reviewed to assess their  effectiveness in operational contexts.

Australian deterrence practices

Under Australia’s current policies, asylum-seekers stopped at sea are transported to either Manus Island (PNG) or Nauru, where they are detained pending status determination proceedings. Currently nearly 2500 asylum-seekers are being held in total at the two locations.

The humanitarian situation in the off-shore processing centers in Nauru and Papua New Guinea has deteriorated. On 17 February 2014, a serious incident occurred on Manus Island involving asylum-seekers both within and outside the center which lead to the death of one asylum-seeker and serious injury to others.

UNHCR has visited Manus Island three times and have consistently raised issues concerning the absence of adequate protection standards and safeguards for asylum seekers. Following the events of February 17, we commented that “[s]ignificant shortcomings in the legal framework for receiving and processing asylum-seekers from Australia remain, including lack of national capacity and expertise in processing, and poor physical conditions.” We also noted that the “detention practices are harmful to the physical and psycho-social well-being of transferees, particularly families and children.”

Furthermore, UNHCR is of the view that the transfer of asylum-seekers falling within the jurisdiction of the Convention is not appropriate when it constitutes an attempt by a signatory to the 1951 Refugee Convention to divest itself of responsibility under the Convention or to deny or limit the exercise of responsibilities under international refugee and human rights law.

Way Forward

As contributions to the Conference have detailed, the Sale case is an outlier in the international jurisprudence today.  Nonetheless, we are witnessing troubling State policies and practices that risk violation of the foundational norm of non-refoulement and other principles of refugee and human rights law.

UNHCR has begun to explore the potential for regional approaches that could serve both legitimate law enforcement interests and refugee law norms. For example, asylum-seekers rescued at sea might be brought to designated locations for assessment of their refugee claims.  Persons found in need of protection could be resettled to a third country; those found not have a valid claim to protection could be returned to their countries of origin.  Crucially, any such transfer arrangements must enhance protection space in the region and support burden-sharing—and not constitute “burden-shifting.”  Thus, such regional processes would need to provide for pre-transfer screening (including “best interest determinations” for minors), fair processes in the receiving state, conditions of reception that meet human rights standards, and access to durable solutions for recognized refugees.

To pursue this issue and others (such as normative and operational gaps), High Commissioner Guterres has announced that this year’s Dialogue on Protection (scheduled for December 10-11, 2014) will focus on the theme of Protection at Sea.

This Conference has shown that the import of the Sale case remains an interesting topic of discussion now more than two decades after the decision.  One important conclusion seems clear: that the norm of non-refoulement must be consistently and persistently asserted if the rights of refugees are to be adequately protected, whether on land or sea.