From Principles to Process: Mexico's New Asylum Law

Last Thursday, President Felipe Calderon signed Mexico's new Law on Refugees and Complementary Protection. Mexico, which acceded to the UN Convention Relating to the Status of Refugees in 2000, created this law in order to bring its practices into line with international standards. The law is expansive and inclusive in its definitions and principles, but falls short on process and protection for disfavored groups.
Mexico could certainly stand to be more generous to asylum seekers. Though an estimated 400,000 refugees reside in Latin America and approximately half a million migrants cross into Mexico each year, there are just over 1000 refugees currently residing in Mexico. Most refugees come from other Latin American countries (mainly Colombia, Haiti, El Salvador, Honduras and Guatemala) but Mexico also hosts refugees from around the world (including Bangladesh, the Democratic Republic of Congo, Iraq, Iran, Nepal, Nigeria, Myanmar, Somalia, and Sri Lanka).
The law's refugee status provisions are framed by several noble principles: no return, no discrimination, best interests of the child, family unity, no sanction for unlawful entry, and confidentiality. It boldly puts several of these guarantees into practice through its very broad and inclusive definitions.
Perhaps most notably, the new law adds gender to the traditional list of five protected grounds upon which asylum law is based. And that's just the beginning as far as non-discrimination is concerned; the law further prohibits discrimination based on ethnic or national origin, gender, age, disability, social or economic status, health conditions, pregnancy, religion, opinions, sexual preferences, and marital status.
The guarantees of family unity are profound; refugees can extend derivative status to spouses, partners, blood relatives to the fourth degree, and economically dependent blood relatives of their partner/spouse to the second degree. This status is valuable, as the law provides that individuals granted refugee status and/or complementary protection are also granted permanent residence in Mexico, enabling long-term family unity and stability.
Mexico is also the fifteenth Latin American country to include the broader refugee definition found in the Cartagena Declaration, which offers protection to those fleeing not only individualized persecution but also generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances seriously disturbing public order. This definition offers a potential avenue for gang-based asylum claims from Central America, but it remains to be seen whether these will be actualized.
The law is rather vague on processes for recognition, revocation, and termination procedures, all of which should at least be subject to basic due process protections. For example, the law states that a refugee may be expelled if there are substantial grounds for believing that they are a threat to national security, but does not describe how this determination will happen and what rights will be due the refugee. On the other hand, the law is disturbingly specific on time limits -- asylum seekers must submit their applications within 30 business days of entry into Mexico. Mexican NGO Sin Fronteras has further criticized the law for its failure to create alternatives to detention for asylum seekers. And it will be quite a challenge to begin implementing the law's provisions until a budget for refugee procedures is approved.
It remains to be seen how both the very progressive rights laid out in and the troublingly vague and strict provisions of the law will be realized in practice. One can only hope that Mexico's reformed asylum process will reflect the lofty principles that guide the law rather than the increasingly exclusionary approaches to refugee law and policy practiced in Mexico's neighbor to the north.

(translation of the Mexican law, and any errors therein, are mine)

Enabling Asylum Seekers with Disabilities

Mindful of Hope Lewis's exhortation to include disability rights in human rights analyses, and in honor of the International Day of Persons with Disabilities, my post today reviews a recent study of asylum seekers with disabilities in Europe. This UNHCR research paper, written by Clara Straimer (pictured below right) and entitled Vulnerable or invisible? Asylum seekers with disabilities in Europe, echoes Hope's call to ensure that the disabled are included in the ostensibly universal scope of human rights obligations. Focusing on the Common European Asylum System but applicable to asylum determination processes worldwide, the paper seeks to "render visible the relevance of disability in the context of asylum."
Straimer's study begins and ends with the point the suffering of disabled asylum seekers is largely overlooked. The UN Refugee Convention provides no guidance on accommodating the needs of disabled asylum applicants, nor has the UN High Commissioner for Refugees promulgated any guidelines on a disability-sensitive interpretation of refugee law. Such an interpretation should view disability as structural oppression rather than an abnormality; in Straimer's words, as "disabling barriers imposed on persons with impairments by an exclusionary society." This social and human rights based approach to disability is exemplified by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which focuses on recognizing the equality and capabilities of persons with disabilities and providing reasonable accommodation for disability-specific needs. It is surprising and concerning that UNHCR has yet to engage with the UNCRPD.
This legal lacuna belies the fact that disability may present a significant barrier to protection and can provoke and result from displacement. Disability may create multiple barriers to accessing asylum processes -- when combined with obstacles of language and citizenship, asylum seekers with disabilities may be prevented from even presenting their asylum claims. Even those asylum seekers with disabilities who access the process may face particular impediments to obtaining protection. For example, mental impairments may interact with the credibility determination process in a way that excludes the disabled from gaining asylum status. Moreover, asylum seekers with disabilities may have specific health care and accommodation needs that may go unnoticed during and after the asylum process. Finally, asylum law is insufficient in its recognition that disability may be a cause of displacement though discrimination, stigmatization, harassment, and neglect of persons with disabilities in their own communities is widespread.
Straimer walks the reader through the European Union's law and policy on disability and finds that they are in line with the UNCRPD's holistic understanding of disability. However, in practice, member states discriminate in the application of disability rights to nationals and non-nationals both at border and within borders. Moreover, Straimer's examination of the European asylum process directives highlights the need to ensure an individual assessment rather than a group-based understanding of disability. The study notes that while the Receptions Conditions Directive does a good job meeting this standard, the Asylum Procedures Directive and Qualification Directive do not. The former fails to recognize the diversity of disability (intellectual, physical) and the resultant principle that asylum seekers with disabilities don't need "special" treatment in all contexts. The latter fails to recognize disability as a particular social group. Both of these failures render barriers to asylum for the disabled invisible, in stark contrast to the visibility of gender and minority barriers to asylum.
Straimer then describes the qualitative research she performed to determine the reasons for this invisibility. The results and analysis are well worth reading further; I won't, however, describe these here in hope that the reader will be enticed into reading this ground-breaking study!

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

Ending Protection for Iraqis?

On September 1, the day after President Obama declared an end to the U.S. combat mission in Iraq, a charter flight carrying approximately sixty Iraqis from Western Europe landed in Baghdad -- apparently ending at least one aspect of the protection mission through forcible repatriation. Despite strong condemnation from the UN High Commissioner for Refugees, the United Kingdom sent another planeload of failed Iraqi asylum seekers back to Baghdad the following week. This time, the Iraqis claimed that, when they refused to disembark in Baghdad, they were beaten by UK Border Agency staff and Iraqi police.

Though some of these Iraqis may have legitimate asylum claims that were denied (similar to this story from Sweden), those who do not face a well-founded fear of persecution on one of the five enumerated grounds fall into a protection gap in international refugee law. The UN Refugee Convention does not provide any legal basis under which failed asylum seekers can remain in the host country, even if they would face, as many of these Iraqis did, "serious human rights violations and continuing security incidents." While UNHCR can "strongly urge" governments to do the right thing by providing protection until safe voluntary return is possible, this request sounds in the spirit of the Refugee Convention rather than its text.
Is it time for a new international convention to protect the rights of those at risk of generalized rather than individualized harm (along the lines of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa)? Many asylum seeker-receiving nations already offer domestic forms of protection (such as the UK's humanitarian protection and the US's temporary protected status) that may apply to those seeking protection from generalized violence. But the domestic nature of these statuses leaves significant discretion in the hands of governments to determine who will receive such protection -- discretion that they may not be willing to part with easily. And in the current political climate, it's hard to imagine that states would be willing to extend international protection to migrants of any sort. In the meantime, UNHCR officials can exhort fair treatment until they're blue in the face, but governments will continue to determine when to end protection of failed asylum seekers without the additional layer of accountability that an international agreement on point might offer.

(credit for photo of Iraqi refugees)

Practicing Cessation

The UN Convention Relating to the Status of Refugees and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa contain identical cessation clauses -- provisions that determine when a host state can withdraw refugee protection. A recently issued report demonstrates the risks inherent in applying the cessation clauses, specifically the changed circumstances provision, in practice.
The changed circumstances provision allows for the cessation of refugee status when a refugee

can no longer, because the circumstances in connection with which [s]he was recognized as a refugee have ceased to exist, continue to refuse to avail h[er]self of the protection of the country of h[er] nationality

In principle, this seems a reasonable provision, but its application in practice can give short shrift to the determination of individual levels of risk within the country of nationality. In the words of an excellent working paper issued last month by the International Refugee Rights Initiative, the Refugee Law Project, and the Social Science Research Council,

[A]n end to hostilities has typically been used as a key indicator that repatriation can take place and that particular groups should go home. This approach, however, often fails to recognise that war and violence may profoundly reshape a polity and, in the process, create new threats to particular individuals who may continue to require protection as refugees.

The paper, A Dangerous Impasse: Rwandan Refugees in Uganda, criticizes efforts by the Governments of Rwanda and Uganda and the UN High Commissioner for Refugees to ensure that all Rwandan refugees in Uganda "voluntarily" repatriate by the end of this calendar year. In the event that some refuse to return of their own accord, the Ugandan government has stated that it will invoke the cessation clause to terminate the status of all Rwandan refugees by the end of 2010. The most recent tripartite communique from the Rwandan and Ugandan governments and UNHCR, in May of this year, stated that a mechanism would be created to address claims by Rwandans with compelling claims for continued protection in Uganda, but this process has yet to be established. This lapse is particularly concerning given that Rwandan refugees in Uganda were to be returned to Rwanda through "bilateral mechanisms" by the end of June, and that many Rwandans continue to seek asylum in Uganda.
The researchers interviewed over 100 refugees and stakeholders, and found that Rwandan refugees in Uganda had numerous reasons to fear return. First, the largely Hutu refugee population feared the gacaca courts, which they viewed as biased because they try only Hutus and because they can be easily manipulated for personal gain or revenge. Second, Hutus worried about the social imposition of collective guilt; one refugee, who was 10 years old at the time of the genocide, feared she would be blamed for the crimes of her parents. Last but certainly not least, the ongoing political repression in Rwanda led many politically active refugees to fear mistreatment upon their return.
The politics of the return of Rwandan refugees are far too complex for a short blog post (though the report takes an admirable stab at explaining them); suffice to say that the Rwandan government's motives for pushing voluntary repatriation are likely less than noble. Refugee populations are an indicator of democratic failures, and the Rwandan government controls its image rather tightly. The Ugandan government, in turn, is eager to move the refugees off its land, and seems to care little for their welfare in Rwanda. UNHCR's role is rather puzzling; perhaps the solution would be worse without its involvement, but it appears to be lending legitimacy to a rather dubious repatriation agreement. To be fair, UNHCR is short on sticks so must be generous with its carrots; one can only hope that it will be able to ensure a fair cessation process for Rwandan refugees in Uganda.

Doubling Back on Dublin

The European Union's Dublin II Regulation funnels asylum claims to the states through which applicants first entered Europe. But what happens when the state of first entry fails to uphold its obligations under international refugee law? The question of how other Dublin member states should address Greece's disastrous asylum system has been answered differently by nearly every national court that has entertained the question, illustrating the difficulty of reconciling competing legal norms.
In the first half of 2009, Greece saw over 80,000 undocumented migrants cross its borders and received the sixth largest number of asylum applications (nearly 10,000) in the EU. Greece's asylum system simply cannot cope with the flow of applications; in late 2009, only 20 claims were registered per day at the Asylum Department in Athens though up to 2,000 people each day wait in line to apply for asylum. Ninety percent of asylum claims are filed in that office, as it is reportedly difficult to file claims outside of Athens. Even those asylum seekers who are able to access the process are often interviewed in a language they can't understand, without interpretation, and without legal counsel to advise them of their rights.
In 2007, Greece granted 8 asylum claims in the first instance - a grant rate of 0.04% -- and 138 claims, a grant rate of 2.05% on appeal. All of the 305 decisions in late 2006 to early 2007, relating to applicants from Afghanistan, Iraq, Somalia, Sri Lanka, and Sudan, were negative. None of these decisions contained any discussion of the facts of individual cases or provided any legal reasoning. Greece's asylum system is, simply put, non-functional.
UNHCR first stepped into the fray in 2007, issuing an advisory note about the risks of refoulement for asylum seekers transferred to Greece under Dublin II. In 2008, UNHCR stepped up the pressure through a position paper communicating its grave concern with Greece's asylum system and advising governments "to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice." And in 2009, UNHCR published a detailed observation paper indicting the the Greek asylum system.
Finally, last week, UNHCR released a report on Dublin member states' use of the "sovereignty clause", Art. 3(2) of the Dublin II Regulation, against transfers to Greece. The sovereignty clause authorizes a member state to process an asylum claim even where the Dublin criteria would require that the claim be heard in a different country. While data on the application of the clause are scarce, UNHCR reports that it is rarely used except to protect vulnerable asylum applicants. In the past year or so, however, states have increasingly relied on the sovereignty clause to suspend transfers to Greece.
And here's the legal tussle -- there's quite a dispute, akin to a circuit split in the United States, brewing over the interpretation of the sovereignty clause. In other words, national courts can't agree on the circumstances under which member states can double back on Dublin. Some national courts have focused on the sufficiency of procedural safeguards (France, Romania), while others ask whether transfer would result in a violation of Article 3 (prohibition of torture) or 8 (right to family life) of the European Convention on Human Rights (Austria, Hungary). French and Spanish courts emphasize the need to examine the risk of return on a case-by-case basis, with the latter providing an exception for vulnerable asylum applicants, including families with small children. On the other end of the spectrum, Belgian courts have found that since Greece is an EU member state, party to the ECHR and the Refugee Convention, and bound by EU instruments, the court must presume Greece will uphold these obligations. As a result, the burden is on the asylum seeker to rebut this presumption with proof of a risk of violations of ECHR Article 3. Similarly, Dutch courts have required tangible or specific indications that a member state isn't fulfilling its international obligations and have suggested that complaints about failure to implement EU law should be raised in Greece with Greek authorities.
It should come as no surprise that asylum applicants have petitioned the European Court of Human Rights to hear their complaints about Dublin transfers to Greece. At the beginning of this month, there were a reported 760 such cases pending before the ECHR. M.S.S. v. Belgium and Greece, the lead case on this question, will be heard by the ECHR's Grand Chamber on September 1. Stay tuned!

Law moves in mysterious ways . . .

The disturbing trend of "pushing back" asylum seekers hit new lows last week when Australia announced that it would suspend asylum applications from Afghanis and Sri Lankans, claiming that both countries have stabilized sufficiently that even refugees can be returned. And on Tuesday, Arizona passed a bill that criminalizes the presence of those without lawful immigration status, risking racial profiling among other rights violations. It seems the fences are getting higher across the developed world, and human rights are pushed to the side as anti-immigrant politics take the fore.
Of course, these policies have raised the ire of immigrants' rights advocates, but we've also seen strong criticism, leveraging the language and power of international law, from unusual quarters. In Italy, where, as I blogged last week, asylum seekers arriving by boat are returned to Libya without even an interview, the Vatican issued a powerful critique of this practice. Paraphrasing without citing the UN Convention Against Torture, Archbishop Agostino Marchetto noted that

No one can be transferred, expelled or extradited towards a state where there is a serious risk that the person will be condemned to death, tortured or subjected to other forms of degrading or inhumane treatment,

and that conditions in some Libyan detention centers are inhumane and degrading.
In the case of Arizona, a more traditional but no less powerful vision of international law was offered up. The Mexican Embassy issued a strongly-worded statement condemning the bill criminalizing undocumented status, noting not only its potential for violating the civil rights of Mexican nationals, but also its potential to upset diplomatic relations between the United States and Mexico. Moreover, the Embassy's spokesperson reiterated the Mexican consulate's commitment to ensuring that the rights of its nationals are respected in the United States.
And in the case of Australia, while a legal response may be forthcoming from the Australian Human Rights Commission, the Tamil Referendum Council of Australia made perhaps the most creative use of international law in responding to the blanket denial of asylum to Sri Lankans. The Council relied on a letter from Human Rights Watch finding that Australia's actions violate the UN Refugee Convention and Protocol to argue that an independent Tamil homeland in northern Sri Lanka is the best way to prevent an influx of refugees and consequent violations of international obligations. In other words, if Australia doesn't want these refugees on its doorstep, it should help to resolve the root causes of flight in Sri Lanka.
Though self-serving to different degrees, the adoption of the language of international law in advocating for the rights of immigrants and refugees is also a reflection of the increasing power of human rights law and indicative of the new life that can be breathed into long-standing principles of foreign affairs and consular protection. And while lawsuits have and will be brought to remedy these rights violations, the use of international law by a variety of actors may start to shift the court of public opinion, which may be more important in enforcing the rights of immigrants.

Refugees: the Good, the Bad and the Environmental?

In the first few days after the quake, France joined other nations in searching for ways to help Haitian survivors. Not only was aid sent to Haiti, but some Haitians were/are being welcomed in France. As the United States granted Temporary Protected Status (TPS) to Haitians already in the US, thus allowing them to work and send remittances home to Haiti, France began bringing over Haitian children who were in the process of being legally adopted in France. Welcomed by First Lady Carla Bruni Sarkozy (at right with Michelle Obama, credit), the headlines were in stark contrast to those that followed soon after and announced the arrival on Corsican beaches of 124 Kurdish refugees from Syria, including 38 children, who were immediately placed in detention. There was a lot of bad press along the lines of: legally adopted children make good refugees; children washed up on the beach fleeing poverty, war, what-have-you, do not. In pretty short order, 94 of the 124 were released due to rights violations. Meanwhile, the issue of creating a status of "environmental refugee" resurfaced, but two Haitians who had just arrived, apparently without proper documentation, were ordered sent back to what is left of their country.
Would creating a new status for individuals fleeing environmental disaster do the trick? It seems such status would concern primarily refugees from global warming, and even the UN High Commissioner for Refugees doesn't think Haitian quake victims need any special asylum treatment because the Dominican Republic is taking them in. And France has something called subsidiairy protection: originally granted to Algerians fleeing fundamentalist terrorism in the 1990s, it was transformed into more general protection under the impetus of a proposed (now adopted) European Union provision to provide temporary protection to individuals needing protection but not qualifying for refugee status. Individuals receiving such protection are not granted full refugee rights (which makes it harder for them to become financially stable, contributing members of the society in which they live) and are under constant threat of being sent back to their country of origin once the authorities deem it safe. It is thus highly regrettable that subsidiary protection has become the status of choice granted by France and other EU Member States to women and girls fleeing gender persecution, for instance. Subsidiairy protection would also be inappropriate for individuals whose place of origin is rendered inhabitable by climate change--once risen, the sea is not likely to recede; once melted, the polar ice caps will not reform any time soon. Such protection might, however, be very appropriate for Haitians fleeing quake devastation, as they should be able to return in the foreseeable future.

The Next Best Thing Turns Out Not So Great

We've blogged before about the United States' use of immigration law to seek either criminal or administrative remedies against human rights abusers present in this country. The case against one such defendant was recently dismissed. General Jose Guillermo Garcia of El Salvador (right, on the right) was indicted for:
► using a passport procured by false statement, in violation of 18 U.S.C. § 1546(a), and
► making a materially false statement to a federal officer, in violation of 18 U.S.C. § 1001(a)(2).
The district court issued an order of dismissal (without prejudice) when the key witness against Garcia (his former immigration lawyer) changed her story on the eve of trial. The Department of Justice has so far resisted criminally prosecuting Garcia for any human rights crime on the ground that the legislation implementing the Torture Convention was enacted after the events in question.
This is the second legal bullet Garcia has dodged, although a $50 million judgment remains outstanding against him in an Alien Tort Statute case brought on behalf of three Salvadoran refugees.

Refugees on the High Seas

Though the "end of the war" was proclaimed several months ago in Sri Lanka, Tamil refugees continue to flee the island. According to some reports, security cameras donated by the Australian government to Colombo's airport have been used by the Sri Lankan government to identify and detain Tamil political activists, who as a result have turned to the sea as their escape route. Whatever the reason, increasing numbers of Tamils are choosing to flee Sri Lanka by boat; three such boats filled with asylum seekers have been intercepted en route to Australia in the past few weeks. In order to prevent such risky boat journeys, or so it claims, the Australian government requires that refugees it rescues on the high seas be sent to Indonesia rather than Australia.
Nearly three weeks after their dilapidated wooden boat was interdicted by the Australian navy in Indonesian waters, 255 Sri Lankans remain on board the ship in a Java port. Having been denied protection in Malaysia, these asylum seekers refuse to disembark in Indonesia because they fear being placed in detention camps. (Just this week, Malaysia released to UNHCR 66 Sri Lankan asylum seekers detained since September; 40 remain in detention camps.) Indonesia is not a party to the UN Refugee Convention, and has stated that it will not allow the refugees to remain on its territory indefinitely, raising concerns of refoulement.
Almost two weeks ago, nearly eighty Sri Lankans were rescued by an Australian customs ship, which is now moored off an Indonesian island. The local governor has said that Indonesia is not a "dumping ground" and and that he will not allow the boat to disembark its passengers. The Indonesian president has sent a delegation to meet with local officials to discuss the situation, and has asked Australia for $50 million to process and detain the refugees. Meanwhile, the Sri Lankans don't want to disembark in Indonesia, for the reasons laid out above, and are demanding to be received in Australia. Though the Indonesian central government has said it will not forcibly remove the Sri Lankans from the Australian boat that rescued them, Australia has not yet ruled out the use of force.
Detention in Indonesia would be an ironic solution to the problem, as Prime Minister Kevin Rudd had closed detention camps for asylum seekers on Nauru and Papua New Guinea in favor of the more humane approach of processing asylum applications on Australia's Christmas Island. It's clear that cooperation between neighbor states will be needed to address this issue, which extends beyond Sri Lankans -- a reported 66 boats carrying over 1600 asylum seekers have been intercepted this year en route to Australia. But that cooperation should take the standards of the UN Refugee Convention as a baseline, and should seek to find a permanent solution for these desperate refugees, rather than warehousing them indefinitely in detention camps.

Refoulement Most Foul

The BBC reports that the Thai government has recently implemented a "brutal and inhuman response" to undocumented migrants from Bangladesh and Burma: tying their hands, forcing them into boats without engines and little or no food and water, and towing them out to sea. As one survivor noted, "The Thai soldiers clearly wanted us to die on the boats." Many died from dehydration and others jumped overboard. Sources in the Thai police and army confirm that at least some of those being pushed out to sea are asylum seekers.

Thailand's behavior violates fundamental provisions of international human rights treaties to which it is a party, most notably the right not to be arbitrarily deprived of one's life. So why did the Thai government feel empowered to so callously disregard the rights of these migrants? The reasons are obviously complex, but one answer may be that international law governing the rights of migrants lacks specificity, particularly in this region. None of the states involved -- Bangladesh, Burma, Thailand, and even India, which is currently caring for the refugees -- is a signatory to the United Nations Convention Relating to the Status of Refugees. While the principle of non-refoulement may have attained the status of customary international law, the regional failure to join the Convention may contribute to a regional view that protection of refugees is a favor rather than a duty. And if the rights of refugees are seen as optional, then economic migrants have little hope of robust rights protection.

So what's the solution? Apart from encouraging nations in the region to ratify the Refugee Convention, a regional treaty that affirms that rights extant in international human rights treaties apply to migrants might help to change attitudes. Countries that produce large numbers of regional migrants could take the lead in promoting protection for their citizens abroad. The non-binding "Bangkok Principles" for the protection of refugees were a preliminary step, back in 1966 -- it's high time now to take the next.

Guest Blogger: Sarah Thomas

IntLawGrrls are pleased to welcome today guest blogger Sarah Thomas (pictured at right). Sarah posts above on the recent controversy that arose in the Extraordinary Chambers of the Courts of Cambodia (ECCC), aka the Khmer Rouge Tribunal, in one of the first efforts of a civil party to communicate in court. We've posted here about civil party participation at the ECCC, a development that appears promising but, as Sarah notes, is not without its potential pitfalls. We are lucky to have Sarah providing an on-the ground-perspective; as the David W. Leebron International Human Rights Fellow working at the Documentation Center of Cambodia's Victim Participation Project, she is uniquely well-positioned to analyze this development. Sarah is a 2007 graduate of Columbia Law School, where she was an Articles Editor for the Columbia Journal of Transnational Law and a recipient of the Parker School Certificate in Recognition of Achievement in International and Comparative Law as well as a Kent Scholar. Sarah's experience in the field of international criminal law includes internships at the Office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia and the International Justice Program at Human Rights Watch. She received her Bachelor of Laws degree from the London School of Economics and has also lived in China and Japan. Heartfelt welcome!

Territory v. Control Redux: On the Dismissal of Maher Arar's Lawsuit v. U.S. Officials

As many readers may know, Canadian citizen of Syrian origin Maher Arar (below right, photo credit) was "abducted" in 2002 while transiting at Kennedy Airport in New York and "rendered" to Syria, where he was tortured. A Canadian commission inquiry revealed that Canadian officials had misinformed US officials; the Canadians therefore apologized and paid Arar roughly $10.3 million. In addition, as Jaya Ramji-Nogales posted, his case figured prominently in the Canadian Federal Court's assessment that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the UN Convention against Torture (CAT), which also prohibits refoulement. Nonetheless, US Legal Advisor John B. Bellinger III announced last month (with respect to the US practice of obtaining diplomatic assurances from countries known to torture prisoners) that in keeping with its obligations under article 3 of the CAT, the US does not transfer prisoners to countries that torture. He emphasized, however, that the non-refoulement provision applies only to persons actually in the United States. Apparently agreeing with him, the Second Circuit Court of Appeals ruled Monday that Arar cannot sue United States officials for damages because he was never technically within US territory. Isn't the airport transit zone, just like the Guantánamo naval base, under the complete control of the United States and therefore US "territory" for purposes of the Convention as well as for habeas corpus?

Human rights for hostes humanis?

Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.

So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him -- or, in the case of pirates like my IntLawGrrls transnational foremother Grace O'Malley -- her. (credit)
Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st C. pirates about whom IntLawGrrl Naomi Norberg posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's non-refoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:

'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'

No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."

(Cross-posted at Slate's Convictions blog. Subsequently, co-bloggers Benjamin Wittes posted this response, and Deborah Pearlstein this reply. Thanks to Berkeley Law student Lindsay M. Harris for the head's up on the Times story.)

Our Neighbor's Assessment: Failure to Protect

Yesterday, the Canadian Federal Court issued an opinion in the case Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v. Her Majesty The Queen. This case challenges the "Safe Third Country Agreement" between Canada and the United States that came into force in December 2004. This agreement provides that, with limited exceptions, individuals who first enter either Canada or the United States and then attempt to cross a land border into the other country in order to lodge an asylum claim must be returned to claim asylum in the first country they entered. In assessing the constitutionality of the agreement, the Canadian Court found that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture -- specifically naming the Maher Arar case as an example of the United States' failure to protect. As one of the experts who described the ways in which U.S. asylum law (in particular, the one-year filing deadline) violates international law, I am proud to note that the court found "the Applicant's experts to be more credible, both in terms of their expertise and the sufficiency, directness and logic of their reports" and "more objective and dispassionate in their analysis and report" than the government's experts. Of particular note, the Court found that "it would be unreasonable to conclude that the one-year bar, as it is applied in the U.S., is consistent with the Convention Against Torture and the Refugee Convention" and that this bar "has a disproportionate impact on gender and sexual orientation claims" for asylum. The Court also found that women making asylum claims based on domestic violence are not sufficiently protected under U.S. law. The long decision is well worth a read, and while it bodes well for asylum seekers in Canada (assuming that the judge's final order, after further submissions, follows this opinion, and that the decision survives appeal), it reads as a damning critique of the treatment of those seeking protection in the United States.

On June 20, ...

... 1953, International Criminal Court Judge Ekaterina Trendafilova (left) was born in Sofia, Bulgaria.
... 2001, in honor of the 50th anniversary of the 1951 Convention Relating to the Status of Refugees, the United Nations proclaimed the 1st World Refugee Day. A global list of events commemorating the day is available here, and at ImmigrationProf Blog there's a call for petition signatures.
...2002 (5 years ago today), in Atkins v. Virginia, the U.S. Supreme Court overruled 13-year-old precedent to hold that execution of mentally retarded persons is cruel and unusual punishment that violates the 8th Amendment to the U.S. Constitution. A footnote in the judgment revived consultation of external norms to aid constitutional decisionmaking. The Court did not establish a bright-line rule for determining whether a persons is "mentally retarded" – with the result that persons with the same IQ may not suffer the death penalty in some states, yet be executed in others, as author Sara Catania details here.