Pushing Back Against Italy's "Push-Back" Policy

Last month, the United Nations High Commissioner for Refugees submitted a third-party written intervention to the European Court of Human Rights in the case of Hirsi and Others v. Italy. The case was filed last May by a group of Eritrean and Somali asylum seekers, including children and pregnant women. who attempted to reach Italy by boat from Libya. When they were thirty-five miles south of Lampedusa (pictured below left), the Italian Coast Guard and Navy interdicted these vessels and returned their passengers to the Libyan authorities in Tripoli. Italian officials made no attempt to identify, let alone interview these asylum seekers. Most remain in temporary detention centers while some are in Libyan prisons. The Italian Interior Minister confirmed that this interdiction and return was conducted pursuant to a bilateral treaty concluded with Libya aimed at reducing irregular migration.
The case raises several important legal issues to which the UNHCR brief responds, namely the practice of interdiction or "push-back" on the high seas, the reception conditions and asylum process in Libya, and the scope of the principle of non-refoulement on the high seas. On the first point, to justify its interdiction practices, it was interesting to see that rather than citing sovereignty concerns, the Italian government cited international law, namely its treaty with Libya and the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (supplementing the United Nations Convention against Transnational Organized Crime). The UNHCR contends that neither of these treaties overrides the Italian government's duty of non-refoulement. To highlight the importance of applying this principle in the case of interdiction near Lampedusa, UNHCR noted that in 2008, 75% of sea arrivals applied for asylum and 50% of those received protection.
The return to Libya is also seriously problematic under international law. Libya has not joined either the UN Refugee Convention or its Protocol, and it has no domestic asylum legislation or processes. As a result, asylum seekers who are caught in "push-back" operations are considered illegal migrants and subject to detention. The poor conditions in Libyan detention centers range from sanitation problems to sexual assault. Even worse, the Libyan government has reportedly concluded an agreement with the Eritrean government for the return of Eritrean nationals -- a guarantee of non-refoulement violations.
All this of course raises the much larger question of the applicability of the non-refoulement principle on the high seas. While there is no right to asylum under international law, UNHCR notes that non-refoulement applies in any territory under a the jurisdiction of a State Party to the ICCPR and to any person within the actual control of a State Party to the ICCPR or UNCAT, irrespective of her physical location. As a result, de jure and de facto jurisdiction exist on board a boat of an intercepting state, requiring that the principle of non-refoulement be respected on such a vessel.
The Hirsi case raises enormously important questions that need thoughtful and creative solutions. Italy appears to be trying to create a legal black hole, an arena in which legal constraints can be ignored; the dangers of such an approach have been amply demonstrated in recent years. Yet the difficulties of addressing mass influxes of undocumented migrants are serious, and include not only severe administrative burdens and costs but potential risks to national security -- not to mention the risks to the migrants of attempting such journeys in less-than-seaworthy vessels. Though the "Fortress Europe" approach of building higher fences has created significant problems, the ECtHR may struggle to dismantle these policies effectively. The case poses a serious challenge to the court's ability to protect human rights while ensuring that its decision is respected and enforced by member states.

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.

Athbhliain fé mhaise dhaoibh!

Athbhliain fé mhaise dhaoibh [or, in English, Happy New Year to you all]. I just thought I’d take this opportunity to point out a few things coming up on this (European) side of the Atlantic in 2009 that’s likely to catch our attention here.
► First of all Ireland will, it appears, get another opportunity vote on the Lisbon Treaty. As many of our readers will know, the Irish electorate voted ‘no’ to the ratification and incorporation of the Treaty last summer. We were the only European Union state to have a referendum on the Treaty and for those who wonder why we did, it’s because EU Treaty Law has supremacy over Constitutional law and, in Ireland, that has been interpreted since the case of Crotty v An Taoiseach (1986) as requiring a constitutional referendum on EU Treaties. Ireland has previously voted twice on an EU Treaty (Treaty of Nice) and ‘Lisbon II’ will be one of the political and legal events of 2009 here. The referendum is expected in 2009.
► The European Court of Human Rights will hear cases relating to abortion rights in Ireland and female genital mutilation/non-refoulement both of which emanate from Ireland. We previously discussed these cases on the blog, and the ECtHR’s decisions are anxiously awaited.
► Thirdly, we expect to see discussions about the placement of released Guantánamo Bay detainees in European states gain even more momentum in the next few months. Strategies for closing the detention centre are quite a hot topic here on IntLawGrrls and the role that European states’ will play in this process will be watched with great interest, particularly given the alleged role some European states (incl. Ireland, I’m afraid) are said to have played in getting people to Guantánamo by collusion in extraordinary rendition.
This is just a taster of the international law stories like to come from Europe over the course of the next 12 months, but as always it seems likely that it will be the unexpected occurrences that will most grab our attention. We look forward to discussing all this and more here on IntLawGrrls.

Diplomatic Assurances: A Structural Weakness in Human Rights Law?

As the Bush administration’s time in office comes to a close, it seems appropriate to start to reflect on the impact that policies pursued by this administration have had on law. These impacts have been plentiful and extend far beyond the realm of the United States into both international law and into the law and policies of other countries. From an Irish perspective the issue of transit states’ liabilities relating to extraordinary rendition has been particularly germane. This results from the fact that the United States has been given fly-over rights and been permitted to use Shannon Airport for the purposes of stop-over, refuelling etc., as indicated below. (image courtesy of the Council of Europe and Irish Council for Civil Liberties)

The concern in Ireland — shared by the European Union and the Council of Europe — is that these rights may have implicated Ireland in the practice of extraordinary rendition. As the European Convention on Human Rights is part of Irish domestic law (through the ECHR Act 2003), Ireland’s non-refoulement obligation might be called into question here and, to that end, the Irish government has sought and received comprehensive diplomatic assurances ("D.A.s") from the US government that no individuals have been, are being, or will be ‘rendered’ through Irish airspace. This has resulted in a quite concerted debate in Ireland about whether diplomatic assurances can ever satisfy a state’s obligation of non-refoulement under Article 3 of the ECHR.

In some recent work, forthcoming in the Irish Yearbook of International Law, I argue that diplomatic assurances can satisfy Article 3 provided they fulfil four criteria gleaned from case law:

► 1. The promise must be adequate;

► 2. The promisor must have effective control over the relevant circumstances;

► 3. The promisor must be credible in relation to the matter at hand; and

► 4. The Diplomatic Assurance must be capable in practice of protecting the individual(s).

For a human rights lawyer it is, of course, somewhat uncomfortable to argue that D.A.s can satisfy a state’s obligation to protect individuals from torture, inhuman and degrading treatment, and states’ practice in accepting such assurances arguably call that state’s real commitment to rights-protection into question. However, and this is really the gist of my argument in the IYIL piece, this exposes a structural difficulty with human rights law as much (if not more) than it does a political difficulty with state practice. In this respect, it may be more productive for us to parse judgments and principles to expose these weaknesses than to assert that D.A.s are not in fact acceptable in law.

The fact that the non-refoulement obligation, which is absolute in the ECHR, can be fulfilled through diplomatic practice rather than through effective rights protection perhaps exposes a weakness in human rights law that we can now focus on trying to mitigate, as perhaps the European Court of Human Rights has tried to do by seeming to raise the standards for satisfaction in the recent case of Saadi v Italy (judgment; case note; prior post).

Commentary on Saadi v Italy

Any readers interested in deportation and expulsion of individuals on national security grounds will be interested in the recent decision of the European Court of Human Rights in Saadi v Italy. I recently wrote about the case here and have now written an ASIL Insight on the case. The Insight is available here.

Check it out!

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.)