NO CHOICE FOR ASYLUM-SEEKERS:
DOES GRANTING PROTECTION NECESSITATE ADMISSION?
by Valentine Dubois 11390514
MASTER IN PUBLIC INTERNATIONAL LAW
Dr. Catherine BrölmannABSTRACT
In 2012, two MoUs were concluded between the government of Australia and the respective governments of Nauru and PNG.To this day, in exchange for financial support, Australia is permitted to send all persons intercepted by its authorities attempting to reach its shores irregularly by boat to OPCs located on both small islands, at which point PNG and Nauru guarantee to process claims for refugee status determination under their own jurisdiction. The outcomes for these asylum-seekers are as follows: their claims are successful and these individuals are afforded the right to remain on Nauru or in PNG as refugees or to settle in a third safe country; or their claims are not successful and they will be removed to their country of origin or another State in which they have a right to enter and reside. None of them however will be allowed to settle in Australia. This thesis seeks to assess the legality of
interception measures and transfer of asylum-seekers to OPCs by Australia in light of its international refugee and international human rights obligations by ascertaining whether there exists a procedural obligation on States to conduct an individualised assessment of persons intercepted at sea. Whilst interception measures and
arrangements similar to the MoUs permitting such transfers are found in all parts of the world, the ECtHR has, in the last 5 years developed a rich jurisprudence
establishing that Member States carrying out interceptions both within their territory and extraterritorially have a procedural obligation to conduct individualised
assessment so as to identify factors which preclude their removal and refrain from removing them to a third State until this assessment is finalised. The Court derived this procedural obligation from two established norms: the principle of
non-refoulement and the prohibition from collective expulsion. This question that arises is whether a similar conclusion be reached based on the application of these norms or similar norms under international refugee and human rights law so as to apply to the Australian context.
TABLE OF CONTENT
LIST OF ABBREVIATIONS………..v
INTRODUCTION………....1
Methodology………3
Structure………..4
CHAPTER 1: The ECtHR jurisprudence ………....6
1.1 The principle of non-refoulement and asylum procedures………...6
1.2 Collective expulsion and asylum procedures……….9
1.3 Extraterritorial application ………..11
1.4 Summary……….13
CHAPTER 2: The principle of non-refoulement in international refugee and human rights law………14
2.1 The principles of non-refoulement and procedural obligations.………15
2.1.1 Refugee Convention………..15
2.1.1.1 Obligation to conduct an assessment……….16
2.1.1.2 Right to transfer the assessment……….17
2.1.2 International human rights instruments……….19
2.1.2.1 CAT……….19
2.1.2.2 ICCPR……….20
2.1.3 Human rights law as supplementing refugee law………..21
2.2 Scope ratione loci of the principle of non-refoulement under refugee and human rights law……….……….24
2.2.1 Jurisdictional scope of the relevant instruments………24
2.2.2 Principle of good faith………...27
2.2.3 Maritime law and interceptions………30
2.3 Summary……….32
CHAPTER 3: Prohibition from expulsion in international refugee and human
rights law……….33
3.1 Prohibition from expulsion of individuals lawfully on the territory ….34 3.1.1 Content of the norm ………..34
3.1.2 Asylum-seekers as lawfully present………..35
3.1.3 Scope ratione loci ……….37
3.2 Prohibition from collective expulsion ………..39
3.2.1 Content of the norm………...40
3.2.2 Scope ratione loci ………..42
3.3 Summary………..………...43
CONCLUSION………...45
BIBLIOGRAPHY………..47
ANNEX………54
LIST OF ABBREVIATIONS
CAT- Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
COA- Court of Appeal
ComAT- Committee against Torture
ECHR- European Convention on Human Rights ECtHR- European Court of Human Rights EU- European Union
HCA- High Court of Australia HoL- House of Lords
HRC- Human Rights Committee
IACHR- Inter-American Commission of Human Rights ICCPR- International Covenant on Civil and Political Rights MoU- Memorandum of Understanding
OAS- Organisation of American States
OHCHR- Office of the High Commissioner for Human Rights OPC- Offshore processing facilities
PNG- Independent State of Papua New Guinea SC- Supreme Court
UDHR- Universal Declaration of Human Rights UN- United Nations
UNHCR EXCOM- United Nations High Commissioner for Refugees Executive Committee
INTRODUCTION
In 2012, two MoUs were concluded between the government of Australia and the respective governments of Nauru and PNG.1 To this day, in exchange for financial support, Australia is permitted to send all persons intercepted by its authorities ‘in the course of trying to reach Australia by irregular maritime means’ to OPCs located on both small islands,2 at which point PNG and Nauru guarantee to process claims for refugee status determination under their own jurisdiction.3 If their claim is successful, these individuals are afforded the right to remain on Nauru or in PNG as refugees or to settle in a third safe country. If it is not, they will be removed to their country of origin or another State in which they have a right to enter and reside.4 None of them however will be allowed to settle in Australia. The parties to the MoUs describe their objectives as the reduction of people smuggling operations and the prevention of deaths at sea.5 However, interception measures are specifically intended to ‘prevent further onward international travel by persons who have commenced their journey; [and] assert control of vessels where there are reasonable grounds to believe that vessel is transporting
1 An MoU expresses the commitment of State parties to act in good faith but does not represent an intention to be legally bound. See I Roberts, F Berman, D Bentley, Satow’s Diplomatic Practice: Treaties and Other International Instruments (I Roberts ed, 7th edn, OUP 2016) Book VII, part 33, para 33.20; Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (renewed on 3 August 2013) (MoU1); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in Papua New Guinea of Certain Persons, and Related Issues (renewed on 5 August 2013) (MoU2).
2 The OPCs were originally set up in 2001 as the Howard governments’ ‘Pacific Solution’ and dismantled in 2008. Department of Immigration and Border Protection, ‘A History of the Department of Immigration: Managing Migration to Australia’ (Corporate Information, June 2015)
<https://www.border.gov.au/CorporateInformation/Documents/immigration-history.pdf> accessed 17 April 2017, pp 76 & 83.
3 Both MoUs interpret ‘irregular migration’ as: ‘the phenomenon of people moving without proper authorisation to a country including for the purpose of seeking asylum’. MoU1 (n1) Interpretation, art9; MoU2 (n1) Interpretation, art 10.
4 MoU1, ibid, artt 12-14; MoU2, ibid, art 13.
persons contrary to international or national maritime law’.6 These measures are employed both within and outside Australian territorial waters and make no distinction between categories of migrants, applying to all persons who ‘do not have the required documentation or valid permission to enter’.7 More so, official reports of the previous and current government provide that in blocking asylum-seekers access to refugee status determination procedures within Australia, the State hopes to deter other asylum-seekers attempting the dangerous maritime journey.8
This thesis seeks to assess the compatibility of such measures with international refugee and human rights law by ascertaining whether there exists a procedural obligation on States intercepting migrants at sea to conduct an individualised assessment so as to ascertain facts that would preclude their removal to any State, including OPCs. If that question is answered in the affirmative, the further question of whether such an obligation extends extraterritorially, so as to apply in the context of interceptions on the high seas, must be also be answered. The term ‘extraterritorial’ may denote an act that is ‘existing or taking place outside the territorial limits of a jurisdiction’.9 However, in considering the legal implications of such an act, the term refers to ‘legal questions involved to a variety of situations outside a State’s national territory’.10 As such, it is the legal obligations arising as a result of an
6 The thesis does not refer to rescue operations as these attach a different set of obligations. UNHCR EXCOM, Conclusion No 97 (LIV) ‘Conclusion on Protection Safeguards in Interception Measures (2003).
7 Ibid.
8 Quote: ‘For years the Coalition has advocated a strong and consistent policy stance that focuses single-mindedly on deterrence. These policies are well known and include […] establishing genuine and rigorous third country offshore processing on Nauru and Manus Island- […] instructing the Australian Defence Force to turn back boats were it is safe to do so.’ Coalition, ‘Operation Sovereign Borders Policy’ (Barton July 2013) <
http://sievx.com/articles/OSB/201307xxTheCoalitionsOSBPolicy.pdf > accessed 17 April 2017, p 5. 9 Extraterritorial, in Merriam-Webster’s dictionary (11th edn, Springfield 2003).
10 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007) p1.
extension of jurisdiction to acts or omissions performed outside the territorial limits of a State that is of interest.
Methodology
A procedural obligation to conduct an individualised assessment to determine whether refugee status can be ascribed is not expressly provided for under the main instruments in international refugee law: the Refugee Convention and its Protocol.11 However, developments under the ECHR regime have demonstrated that States use of measures to intercept migrant ships carrying asylum-seekers, thus blocking their access to refugee status determination procedures within their State and the conclusion of bilateral agreements for the transfer of migrants to third States for processing, must comply with standards under regional human rights and international refugee law. In the last 5 years, the ECtHR has consistently re-affirmed that States party to the ECHR and engaging in interception operations at sea, regardless of whether these occur in or outside the territory of the intercepting State, have a procedural obligation to conduct an individualised assessment thereby identifying potential asylum-seekers and refrain from removing them to a third State until such an assessment is finalised.12 The ECtHR derived this procedural obligation from two established norms: the principle of non-refoulement and the prohibition from collective expulsion.
11 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137; Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (referred jointly as the Refugee Convention); Refer to annex 1 for a list of relevant international treaties to which Australia is a signatory or has acceded to or ratified.
12 Hirsi Jamaa and Others v Italy App no 27765/09 (ECtHR, 23 February 2012); Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, 21 October 2014); Khlaifia and Other v Italy App no 16483/12 (ECtHR, 15 December 2016).
The following question therefore arises: can a similar conclusion be reached based on the application of these norms or similar norms under international refugee and human rights law so as to apply to the Australian context? The principle of non-refoulement and a more general prohibition from arbitrary expulsion under international refugee and human rights law will therefore serve as the pillars on which to determine whether asylum-seekers seeking to reach Australia benefit from a similar protection. In conducting this assessment, the thesis will look first to the normative content of the principles as provided for under the recognised sources of international law13 and supplemented by State practice, works of legal scholars, decisions and documents published by international human rights treaty bodies and by authoritative bodies in international refugee law. The thesis will seek to present the most recent interpretation of both aforementioned norms, taking into account and analysing conflicting interpretations. Where there is a gap in the international legal regime or where the legal has yet to be clarified, the ECtHR jurisprudence will be considered to determine whether an analogous interpretation is appropriate.
Structure
In using the ECtHR jurisprudence as a roadmap, Chapter 1 will examine the findings of cases considering the legality of interception measures to demonstrate how a procedural obligation for an individualised assessment came to be interpreted under both the principle of non-refoulement and the prohibition from collective expulsion, and how an extraterritorial application of these principles was accepted. Based on this framework, norms as contained in sources of international law applicable to the Australian context will be explored. These include customary international law, the ICCPR, the CAT, the Refugee Convention and general principles of law. 14 Chapters 2 and 3 will contain an assessment of the normative content and scope of both the principle of non-refoulement and the prohibition from arbitrary 13 ICJ Statute (adopted on 26 June 1945, entered into force 24 October 1945) 59 Stat. 1031, art 38.
expulsion under the aforementioned sources respectively. Both chapters will first assess the content of the respective norms to determine whether these impose on the concerned State a procedural obligation to conduct an individualised assessment and if such an obligation attaches a right of access to refugee status determination procedures or simply identification. Following on, an assessment of the scope of these procedural obligations will be conducted to determine whether these obligations apply to the context of extraterritorial interceptions.
Although addressed separately, Chapters 2 and 3 also touch on the inter-connectedness of the principle of non-refoulement and principles governing arbitrary expulsions of individuals by a State. The legal principle of non-refoulement as a key feature of international refugee law and a human rights norm is a substantive obligation that limits the State’s ability to resort to measures of refoulement when a certain state of affairs exists in the State of return.15 Conversely, principles governing arbitrary expulsion by a State, such as the prohibition from collective expulsion or the prohibition from expulsion of persons lawfully on the territory, provide individuals with a right of due process against a State’s prerogative to expel or issue a ‘formal measure […] that compels the person in question to leave the territory of the expelling State’.16 Whilst the principle of non-refoulement defines a right and corresponding obligation, the prohibition from arbitrary expulsion is a procedural obligation under which the principle of non-refoulement might arise as a relevant consideration. As will be discussed, it is likely that acts amounting to a breach of the prohibition from arbitrary expulsion will generally also breach the principle of non-refoulement. In the final chapter, the findings of 14 International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR); Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT). Refer to Annex 1 for dates of signature and accession to each treaty.
15 The verb ‘refouler’ or to return denotes the physical act of repelling, driving back or sending back and expelling, in Merriam-Webster’s dictionary (n9); Sale v Haitian Centers Council, Inc 509 U.S. 155 (1993) para 181
Chapters 2 and 3 will be applied under the conclusion to determine the legality of Australia’s transfer of asylum-seekers to OPCs following interception measures according to its obligations under international refugee and human rights law.
CHAPTER 1: The ECtHR jurisprudence
The ECtHR jurisprudence consolidated for the first time, in any regional or international human rights regime, an obligation on States to, at the very least, conduct an individualised assessment of persons intercepted at sea so as to identify those requiring international protection. Although this does not necessarily set the path for similar interpretations under the international human rights and refugee law regime, the reasoning of the judges provides a solid framework to be analysed in order to determine whether similar findings under the principle of non-refoulement or the prohibition from collective expulsion could be transposed to the international context. This Chapter will first explore the ECtHR’s reasoning on the principle of non-refoulement under article 3 of the ECHR to demonstrate that the provision has been interpreted so as to impose on States a duty to advise aliens of their right to access refugee status determination procedures and to conduct an assessment of the situation in any country of return.17 Secondly, this chapter will assess the ECtHR’s findings on the prohibition from collective expulsion under article 4 of Protocol 4, under which a lower duty of identification of potential asylum-seekers was asserted. The third section will discuss the ECtHR’s reasoning in holding that these obligations apply to extraterritorial acts that restrict unauthorised maritime migration.
17 European Convention on Human Rights (adopted on 4 November 1950, entered into force 4 November 1950) ETS 5, artt 3 &13 (ECHR); Protocol 4 to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto (adopted on 16 September 1963, entered into force 2 May 1968) ETS 46, art 4 (Protocol 4).
1.1 The principle of non-refoulement and asylum procedures
The principle of non-refoulement, implied under article 3 of the ECHR and supplementing article 33(1) of the Refugee Convention, serves as a limitation on the State’s sovereign right to control entry, residence and expulsion of aliens where removal would expose the individual to certain risks.18 The core purpose of this obligation can be summarised as follows: to protect any person from return to any country where there is an immediate risk of any ‘”flagrant violation” of the essence of any Convention right’ in the receiving State19 or to any country where there is a risk of arbitrary return to such a State. The provision is commonly applied to cases of return or expulsion of asylum-seekers and was extended to summary returns of migrant ships on the high seas for the first time in Hirsi Jamaa and Others v Italy.20 The absolute nature of the provision has the following consequences: it applies to all persons regardless of personal status and it cannot be displaced by pre-existing bilateral arrangements, such as MoUs.21 However, this is only so long as the person can demonstrate they face the purported risk. As such, the Court has held that an obligation to conduct a thorough and rigorous assessment of the removal of the individual by the national authorities was necessarily inherent to the principle. 22 As the risk may emanate both from subjective and objective elements, the assessment must consider the individuals’ personal
18 Hirsi (n12) para 113; Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989) paras 90-91; re-affirming Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80; 9473/81; 9474/81 (ECtHR, 28 May 1985) para 67.
19 Hirsi, ibid, p 60.
20 Vilvarajah and Others v United Kingdom App no 13163/87/ 13164/87, 13165/87, 13447/87, 13448/87 (ECtHR, 30 October 1991); Chahal v United Kingdom App no 22414/93 (ECtHR, 15 November 1996) para 74; Hirsi, ibid.
21 ECHR (n17) art 15; Hirsi, ibid, para 122.
22 Hirsi, ibid, para 198, re affirming Čonka v. Belgium App no. 51564/99 (ECtHR, 5 February 2002) para 79.
circumstances as well as the situation in the State to which return is expected.23 This not only covers the State of origin but any receiving State.24
In addition to ensuring the State of return would not commit the feared acts, the ECtHR also affirms it is the responsibility of the State carrying out the return ‘to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks he or she faces’.25 Relevant factors in this assessment include, but are not limited to, the State’s abidance to refugee law and human rights law standards and the availability of asylum procedures.26 The ECtHR has held that these assessments are the responsibility of the State and do not depend on a request by the individual.27 In order to comply with article 13, the procedures must also have suspensive effect so as to prevent the execution of measures that are contrary to the Convention and with potentially irreversible effects. 28
The ECtHR provided that article 3 did not seek to impinge on a State’s prerogative to prevent illegal migration and argued that an assessment under article 3 would not amount to a determination of refugee status.29 It noted States should instead find a solution domestically that is compatible with their human rights obligations.30 However, despite these words of 23 UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (1979) UN Doc
HCR/IP/4/Eng/REV.1, paras 37-38.
24 Such was the case in M.S.S under the Dublin II Regulations. M.S.S v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) para 342.
25 This would constitute indirect refoulement. Hirsi (n12) para 147; re-affirming M.S.S, ibid, para 338-343.
26 Libya, for example, had failed to ratify the Refugee Convention. Ibid, para 153. 27 Ibid, para 144.
28 Council of Europe: European Court of Human Rights, Guide on Article 4 of Protocol No. 4 to the European Convention on Human Rights- Prohibition of Collective Expulsions of Aliens (30 April 2017) para 21.
29 Hirsi (n12) para 179; Sharifi (n12) para 224.
caution, what is clear from these judgments is that the principle of non-refoulement imposes on States an obligation to conduct an individualised assessment regardless of whether an individual has requested asylum, advise the individual of his right to obtain asylum and assess the situation in the receiving State.31 If, as was the case in Hirsi, return to the State of origin or to a third State proves to be impossible, it rests on the State under whose jurisdiction the asylum-seekers fall within to provide the required status determination procedures. This is essentially a right of access, although it may be argued that, should the assessment of a third State be positive, the State could then be permitted to transfer the responsibility of actually processing refugee determination claims. Indeed, the main consideration is the protection of the asylum-seekers, not their freedom to choose.
1.2 Collective expulsion and asylum procedures
Article 4 of Protocol 4 prohibits collective expulsion save where there has been ‘an examination of the particular case of each individual alien of the group’ that is ‘reasonable and objective’.32 It further seeks to prevent the removal of persons without permitting them to provide arguments against their removal, such as claiming asylum.33 The failure of the authorities to undertake an assessment that would divulge elements necessary to determining whether there exists a risk of behaviour under articles 3 or 2 will constitute collective removal. 34 Individual repatriation orders which use identical wording where these are the result of individual examinations will not.35 As with article 3, the prohibition has suspensive effect and is absolute.36 The minimum standard to be complied with was addressed in Hirsi 31 Hirsi (n12) paras 19-20; Sharifi (n12) paras 231-235. Both returns occurred under the terms of previously concluded mutual agreements.
32 Protocol 4 (n17) art 4. 33 Hirsi (n12) p 177.
34 First developed in Čonka (n22). 35 Hirsi (n12) para 184.
and the Second Chamber in Sharifi and Others v Italy and Greece. Both Courts argued that article 4 imposes an obligation on States to ensure there are facilities and personnel available to conduct an individualised assessment before the removal to any other State.37 This includes summary removal of individuals under the terms of a bilateral arrangement, even where such an arrangement emanates from EU law.38
As with article 3, the ECtHR has consistently re-affirmed that an assessment in the context of expulsion does not impose on the State an obligation to award refugee status.39 Moreover, the implications of the assessment have experienced a shift since the judgment of Hirsi to that of Khlaifia and Other v Italy. Judge de Albuquerque in Hirsi argued that failure by a State in its ‘duty to advise an alien of his or her rights to obtain international protection and the duty to provide for an individual, fair and effective refugee status determination and assessment procedure’ necessarily entails a violation of the prohibition.40 As such, persons seeking asylum could rely on the procedural safeguards under both article 3 and article 4 of Protocol 4 to access refugee status determination procedures.
However, the Grand Chamber in Khlaifia, overturning the Second Chamber’s decision, argued that although an assessment should generally have regard to the general context of the expulsion and the specific situation of the concerned individual, the provision ‘does not guarantee the right to an individual interview in all circumstances’.41 Rather, the provision would be satisfied ‘where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an
37 Hirsi, ibid, p 75; Sharifi (n12) para 242.
38 Such as the Dublin II framework in Sharifi, ibid, para 224. 39 Hirsi (n12) para 179; Sharifi, ibid, para 224.
40 Hirsi, ibid, p 75. 41 Khlaifia (n12) para 248.
appropriate manner by authorities of the respondent State’.42 They considered that an order for removal based on the prior identification of the applicants by the authorities, during which they had been given the possibility of seeking asylum but did not avail themselves of the opportunity, would satisfy the requirements for a ‘genuine and effective’ possibility. Judge Serghides, partially dissenting, argued that the majority’s finding departed from the previous case law by rendering the prohibition subject to the discretion of the competent authority at the point of identification rather than mandatory.43 As it stands today, although States have an obligation to identify intercepted individuals and conduct an individual assessment prior to expulsion, it is for the individuals themselves to request asylum.
1.3 Extraterritorial application
The scope of both articles 3 of the ECHR and 4 of Protocol 4 are dictated by article 1. Whilst jurisdiction is essentially territorial, the Court ‘has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1’.44 The determination of whether such an exceptional circumstance exists rests on proving the State either exercises effective control over a territory, control and authority over an individual,45 or, as developed more recently, where the observance of the rights and thus the breach is within the authority and control of the State.46 Extraterritorial acts will not give rise to an obligation to respect all rights enshrined in the Convention, only those that the State has the
42 Ibid.
43 Ibid, p 103, para 7 (Partly dissenting opinion of Judge Serghides).
44 Ibid, para 72; affirming Bankovic et al. v Belgium et al App no 52207/99 (ECtHR, 19 December 2001), para 67.
45 A personal test as developed in Issa and Others v Turkey App no 31821/96 (ECtHR, 16 November 20004).
46 A functional test as developed in Al-Skeini et al. v The United Kingdom App no 55721/07 (ECtHR, 7 July 2011) para 113.
power to control and to protect.47 The requisite standard of control developed in Medvedjev and Others v France and applied in Hirsi requires ‘at least de facto continued and uninterrupted control’ particularly in the context of boarding of ships.48 The Court in Hirsi adjudged Italy’s position vis-a-vis the ship constituted de jure control according to principles governing jurisdiction on the high seas.49 However, they accepted that measures of interception by a flag-ship over a ship carrying unauthorised migrants would generally constitute de facto jurisdiction in satisfying a test of effective control.50
As will be discussed further in Chapter 2, the UNHCR and various treaty bodies had accepted an extraterritorial application of the principle of non-refoulement when Hirsi was decided.51 The prohibition from expulsion, on the other hand, had not been applied to such situations and had received little academic attention. Expulsion is to be defined under article 4 of Protocol 4 as it is under article 3 of the same Protocol, as ‘the generic meaning, in current use (to drive away from a place)’.52 In light of this understanding, the responding State in Sharifi argued that the prohibition read literally should be limited to persons who had lawfully entered the territory of a State.53 As such, they argued the complaint issued by those who had been intercepted in territorial waters was inadmissible on the basis of both their illegal and extraterritorial presence. The applicants and third parties intervening argued instead that a teleological interpretation of the provision, favouring an extraterritorial application, should be
47 ‘Convention rights can be “divided and tailored”’. Ibid, paras 136-137.
48 Medvedjev and Others v France App no 3394/03 (ECtHR, 23 March 2010) paras 65-66; Hirsi (n12) para 80.
49 Hirsi (n12) para 77. 50 Ibid, para 74.
51 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations’ (n10).
52 Ibid, para 174.
favoured so as to ‘render [the provision] practical and effective rather than theoretical and illusory’.54
The Court in both cases found in favour of a broad interpretation.55 In Sharifi, the Court referred specifically to the EXCOM’s definition of the term refoulement as a tool of interpretation for the term expulsion. They provide that the principle of non-refoulement is not bound to territorial confines but can extend to ‘rejection at the frontier, interception and indirect refoulement’.56 Furthermore, they found a broad application is compatible with the rules for treaty interpretation. The ordinary meaning of the provision does not preclude its extraterritorial application and, rather than being inconsistent with its purpose, it would better prevent the forcible removal or transference of groups of aliens from one State to another without an individualised evaluation.57 Finally, this reading is not precluded under the travaux preparatoires. Therefore, it seems that the extraterritorial application of the prohibition from collective expulsion now forms part of the corpus of the ECtHR jurisprudence.
1.4 Summary
Under the European regime, it is clear that the obligation of non-refoulement encompasses an unequivocal obligation on States to conduct an individualised assessment into the circumstances of the individual, the State of feared return or any receiving third State to determine whether there exists a risk of prescribed harm or arbitrary return. It further imposes a duty on States to advise persons of their right to claim asylum regardless of whether this
54 Hirsi (n12) paras 162, 164-165; Sharifi, ibid, para 210.
55 Vienna Convention on the Law of Treaties (adopted on 23 May 1969, entered into force on 27 January 1980) 1155 ILM 331, artt 31-33 (VCLT).
56 UNHCR EXCOM, ‘Note on International Protection’ (13 September 2001) UNGA A/AC.96/951, para 16.
was previously requested. Article 4 of Protocol 4 is a procedural obligation that prohibits the arbitrary removal of asylum-seekers and imposes an obligation on States to conduct an initial screening of migrants intercepted to identify what category they might fall under. However the ECtHR has deemed that a State is not under an obligation to inform the unauthorised migrants of their right to international protection. Nonetheless, it may be argued that should a State conducting an assessment under article 4 of Protocol 4 become aware of facts that would prohibit the return under the principle of non-refoulement, then a procedural obligation under article 3 of the ECHR would apply regardless of any request for asylum by the individual. Both principles have suspensive effect and prevent a State from taking any action, including the transfer to any third State on the basis of a bilateral arrangement, until a determination has been reached. Furthermore, the prohibitions from refoulement and expulsion will, most likely, always apply to situations of interception at sea, as the Court has found this satisfies a test of effective control. These findings provide the framework on which to determine whether similar procedural obligations exist under international refugee and human rights law.
CHAPTER 2: The principle of non-refoulement in international refugee and human rights law
Having established that the principle of non-refoulement under regional European human rights and refugee law provides intercepted asylum-seekers with a right of access to identification procedures prior to being transferred to OPCs, the principle of non-refoulement under the Refugee Convention, the ICCPR and the CAT will now be assessed so as to determine whether an implied procedural obligation to conduct an individual assessment exists and whether such an assessment would amount to refugee status determination. The first part of the chapter will therefore look to the content of the obligation as formulated
under the relevant instruments. Furthermore, this chapter will consider the jurisdictional scope of this obligation to determine whether, as under the ECtHR regime, an extraterritorial application can be envisaged to regulate interception activities of States on the high seas.
2.1 The principles of non-refoulement and procedural obligations
This section will first consider the content of the principle of non-refoulement under the Refugee Convention and the human rights instruments consecutively to determine whether these encompass a procedural obligation to conduct an individual assessment and the effect of such an assessment. The inter-connectedness of international human rights and refugee law will then be discussed, permitting a conclusion that the principle of non-refoulement necessarily denotes there must be an absolute right to a procedural determination of one’s refugee status.
2.1.1 Refugee Convention
The principle of non-refoulement under the Refugee Convention applies to any person who objectively fulfils the refugee definition enumerated in article 1A subject to restrictions and exceptions.58 The obligation extends to asylum-seekers, meaning those whose status has yet to be determined. Such an interpretation finds force in the status being declaratory rather than constitutive.59 Arguably, not all asylum-seekers who present themselves within the territory of a State will be found to satisfy the requirements under article 1A. Others may be fleeing poverty, ecological disasters, criminal prosecution or a persecution that fails to meet the
58 Refugee Convention (n11) artt 1A- 1A(2), 1F & 33(2).
59 This interpretation is supported by A Grahl-Madsen, The Status of Refugees in International Law: Volume II (A.W. Sijthoff 1972) p 224; UNHCR, ‘Handbook on Procedures and Criteria for
Determining Refugee Status’ (n23) para 28; re-affirmed by UNHCR EXCOM, Conclusion No. 6 (XXVIII) ‘Non-Refoulement’ (1977) para c; Hirsi (n12) p 63 (Concurring opinion of Judge Pinto de Albuquerque).
requisite standard. Logically, there therefore needs to be a determinative investigation into the particular circumstances of the individual.
2.1.1.1 Obligation to conduct an assessment
Article 33(1) of the Refugee Convention is a substantive obligation and leaves the process and framework of status determination at the discretion of the State, ‘having regard to its particular constitutional and administrative structure’.60 Nonetheless, as part of their general commitment under the Refugee Convention, States undertake to assure refugees the widest possible exercise of the fundamental rights and freedoms prescribed under the Convention without discrimination.61 The adoption, at a minimum, of effective internal procedures to allow for refugee status determination has been consistently deemed a paramount requirement in ensuring such rights by the UNHCR.62 Specifically, article 33(1) imposes an absolute obligation on States and applies regardless of domestic implementation.63 As such, to facilitate compliance, the UNHCR has suggested that the internal procedures should include an individualised assessment that considers the asylum-seeker’s personal characteristics and the situation in the country to which he or she fears return, be it his or her
60 UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’, ibid, para 189. 61 Refugee Convention (n11), preamble; The High Court of Australia has also recognised the preamble as reflecting the 1951 Convention’s humanitarian aims: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381, para 383.
62 UNHCR EXCOM, Conclusion No. 42 (XXXVII) Accession to International Instruments and their Implementation’ (1986) para j; UNHCR EXCOM, Conclusion No. 52 (XXXIX) ‘International Solidarity and Refugee Protection’ (1988) para. 3; UNHCR EXCOM, Conclusion No 89 (LI) ‘Conclusion on International Protection’ (2000) para b; UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (n23) para 189; Lisbon Expert Roundtable, ‘Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers (December 2002) (‘Lisbon Expert Roundtable’) para 15(f).
63 C M Vazquez, ‘The “Self-Executing” Character of the Refugee Protocol’s Non-refoulement Obligation’ (1993) 7 Geo Immigr. L.J, p 55 citing Foster v Neilson 27 US (2 Pet) 253 (1829) p 57.
home country or any other country.64 The EXCOM has set out further basic requirements that are deemed necessary to fulfil standards of effectiveness.65 Whilst these documents have no binding legal force, the EXCOM, as the ‘only specialised forum for the development of international refugee law standards at global level’ has some probative value in developing ‘soft law’ norms and evidences State consensus with respect to certain matters.66 An obligation to conduct an individualised assessment as derived from the power to grant refugee status has also been recognised by States, namely the HCA.67
2.1.1.2 Right to transfer the assessment
The Convention or the guidelines do not provide that one State is responsible for processing such applications and do not preclude the transfer of this responsibility between States. The UNHCR has provided a set of guidelines pertaining to the transfer of individuals for processing to a third State. Whilst they encourage States to permit asylum-seekers to be processed either in the territory where they arrive or which has jurisdiction over them, they recognise that the current migratory situation may give rise to cooperative schemes to share the burden.68 However, such arrangements must ‘be assessed on a case-by-case basis’ and guided by certain principles including: the intention of the asylum-seeker, the control exercised by a State over the individual during interception, the compliance of the receiving
64 UNHCR, ‘Asylum Processes (Fair and Efficient Asylum Procedures)’ (31 May 2001) UN Doc EC/GC/01/12, paras 12–18.
65 UNHCR EXCOM, Conclusion No. 8 (XXVIII) ‘Determination of Refugee Status’ (12 October 1977) para e.
66 A Corkery, ‘The Contribution of the UNHCR Executive Committee to the Development of International Refugee Law’ (2006) 13 Australian International law Journal 97-127, pp 98, 108. 67 Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, para 9 (Majority
decision Mason, Deane, Dawson JJ); re-affirmed in Plaintiff M70/2011 and Plaintiff M106/2011 v
Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011) para 215 (Kiefel J). 68 UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru 7 to 9 October 2013’ (26 November 2013) p 6, para 21.
State to international human rights and refugee law standards and the bindingness of the instruments dictating the arrangement.69
Furthermore, the 2007 Michigan Guidelines on Protection Elsewhere provides that ‘protection elsewhere policies are compatible with the Convention so long as they ensure that refugees defined by article 1 enjoy their rights set by articles 2-34 of the Convention’.70 As such, the arrangement must ensure that there are adequate and effective determination procedures available in the receiving State and guarantees that those afforded status will be awarded the full rights under the Convention. Failure by the receiving State to ensure the assessment is conducted and rights are ensured will engage the responsibility of the sending State.71 Other requirements include a written agreement between the States in question, granting access to the UNHCR and a mode for dispute settlement.72 Such an approach is in line with burden-sharing considerations and requirements for international cooperation under the Refugee Convention and consistent with recommendations made by the UNHCR.73 The choice of destination of the asylum-seeker, whilst a consideration to be taken into account, cannot constitute a binding obligation on the State rescuing or intercepting unless removal to another State would amount to refoulement or indirect refoulement.
States have interpreted such guidelines narrowly in justifying the legality of bilateral arrangement facilitating such transfers.74 For example, the HCA in the Plaintiff M70/2011
69 UNHCR, ‘Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum-Seekers’ (May 2013).
70 University of Michigan Law School, ‘The Michigan Guidelines on Protection Elsewhere’ (3 January 2007) Michigan Journal of International Law, para 1.
71 University of Michigan Law School, ibid. 72 Ibid, para 16.
73 UNHCR EXCOM, ‘Note on International Protection’ (n56) para 11; UNHCR, ‘Submission by the UNHCR for the OHCHR Compilation Report UPR: Australia’ (2015) 2nd cycle, 23rd session; Refugee Convention (n11) preamble.
judgment argued that the Convention obligations are owed as between States and do not provide individuals with a cause of action against States. As such, the Court found that whilst States have an obligation to ensure access to facilities designed to protect from refoulement, such an obligation does not entail a duty to respect the asylum-seekers choice of destination.75 Therefore whilst effective implementation of the Convention will not be achieved without proper procedures for status determination, this does seem to preclude the transfer of such procedures between States, so long as these remain effective.
2.1.2 International human rights instruments
State Parties to the CAT and ICCPR are also bound to the principle of non-refoulement under international human rights law. Both are termed as absolute prohibitions and therefore apply to all individuals within the territory of the State and subject to its jurisdiction, regardless of their legal status.76
2.1.2.1 CAT
Article 3 of the CAT expressly provides against the return of persons where there are ‘substantial grounds for believing that he would be in danger of being subjected to torture’.77 Unlike the ICCPR or the ECHR, this provision is limited to risks of harm that is instigated by or performed with the consent of a public official or person acting in an official capacity.78 The ComAT have affirmed that the obligation entails a duty on the State to conduct an individual examination ‘through competent administrative and /or judicial authorities’ to ascertain whether there is a ‘personal, real and foreseeable risk’ of torture upon removal.79 75 Plaintiff M70/2011 (n66) paras 212-213.
76 ComAT, ‘General Comment 2’ (2008) CAT/C/GC/2, part II. 77 CAT (n14) art 3(1).
78 Ibid, art 1.
This assessment must take place prior to the removal of that individual to their State of origin or any receiving State and look not only to the risk of direct but also indirect refoulement.80
The assessment can therefore be summarised as follows. First, an assessment of the State of feared return must be conducted to determine whether a risk of torture indeed exists. If no risk exists, there can be no violation of indirect refoulement. If a risk exists, the State must then conduct a full assessment of factors which might preclude the transfer of the individual to a third State. 81 The ComAT has made it clear however that neither the application of the CAT nor a finding of a violation seeks to affect the decisions of the competent national authority in granting or denying asylum.82 However, the State undertaking the assessment is responsible for finding a solution of either a legal or political nature that will ensure refoulement does not occur.83
2.1.2.2 ICCPR
The principle from non-refoulement under the ICCPR is implied within article 6 and 7. The HRC have argued that it constitutes ‘an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial ground for believing that there is a real risk of irreparable harm […] either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.84 The prohibition therefore expressly prohibits indirect refoulement. The HRC have argued that the principle entails a positive obligation of States to admit persons within their territory and
80 Ibid, paras 12-13
81 C W Wouters, International Legal Standards for the Protection from Refoulement (Instituut voor Immigratierecht 2009) pp 509-510.
82 ComAT, Seid Mortesa Aemei v. Switzerland (1997) CAT/C/18/D/34/1993, para 11. 83 Ibid.
84 HRC, ‘General Comment 31’ (2004) CCPR/C/21/Rev.1/Add. 1326, para 12; ICCPR (n14) artt 2 & 6-7.
remain so long as protection is necessary.85 However, little guidance is provided as to whether this entails an obligation to permit asylum-seekers to apply under the relevant refugee status determination procedures. The HRC seems to suggest the implementation of this obligation is left to the domestic sphere.86 Whilst articles 6 and 7 remain silent on removal to third States where no risk of refoulement exists, States must ensure they nonetheless do not violate their obligations under articles 2(3) of the ICCPR. Article 2(3) is only applicable to situations where the individual has had his or her claim for protection from refoulement assessed and rejected and therefore would fail to provide relief to those pre-emptively intercepted and sent to OPCs. Whilst the HRC has argued asylum-seekers should have access to representation to ensure full protection of their rights as of the moment of initial determination, this is not ensured in practice.87
2.1.3 Human rights law as supplementing refugee law
The previous findings evidence two considerations: a procedural right of access to status determination procedures under article 33(1) of the Refugee Convention is poorly defined and, whilst the relevant human rights instruments do evidence the existence of a procedural obligation to conduct an assessment under the principle of non-refoulement, this does not entail an obligation on the State to conduct a status determination. It is at this point, that the relationship between refugee law and human rights law should be addressed, with particular emphasis on its effect on the operation of the principle of non-refoulement. Such an understanding will demonstrate that observance of the principle under refugee law necessarily demands compliance under human right law and vice versa. The substantive component of the principle as enshrined in the Refugee Convention and supplemented by
85 HRC, ‘Concluding Observations on Italy’ (24 April 2006) CCPR/C/ITA/CO/5, para 15. 86 C W Wouters (n81) p 411.
international human rights law constitutes a rule of international customary law.88 However, whilst the customary norm broadens the category of risks to which a person may not be return to, there is no State practice or opinio juris to suggest an implied obligation to conduct an individualised assessment forms part of custom. Nonetheless, without looking to custom, the notion that human rights law supplements refugee law permits the implication of a procedural obligation to conduct an assessment akin to refugee status determination under article 33(1).
Such an interpretation is supported by the text of the Refugee Convention, scholarly opinion, human rights treaty bodies and case-law. The preamble of the Convention makes express reference to the UN Charter and the UDHR in addressing the special vulnerability of refugees to human rights violations. Many of the rights contained within the Refugee Convention as well as the standards provided by the EXCOM replicate existing international human rights standards. Apart from aforementioned principle, these also include the prohibition from discrimination, the right to legal personality and the respect for family unity.89 Furthermore, article 5, in referring to rights between States and individual, implies the Refugee Convention provides minimum standards to be applied alongside other relevant human rights instruments.90 Indeed, the Canadian SC has argued this provision ‘negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone’.91
Renowned legal scholar, Vincent Chetail, argues that the relationship of the two branches has shifted from a causal or preventive approach, whereby concerns for human rights were placed on the country of origin, to an interactive and integrative one, in which human rights inform 88 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations’ (n10) para 15.
89 Refugee Convention (n11) artt 3 & 32(2), 90 Ibid, preamble & art 5.
the right of refugees and vice versa.92 A number of developments support such a conclusion. For example, the HRC has repeatedly used standards pertaining from refugee law or directly under the Convention in their views without further qualification.93 Furthermore, the development of complementary protection demonstrates a desire to expand the scope of protection to persons falling beyond the 1A definition.94 The broadening of the refugee definition to include new grounds of persecution such as gender-based violence as evidenced in UNHCR publications and State practice provides another compelling example.95 Specifically, in the context of the interpretation and application of the principle of non-refoulement, the impact of human rights law can be seen in the widening of the principle to encompass any risk of cruel and inhumane treatment.96 The clear indivisibility of the two fields allows two important propositions to be made. Firstly, the procedural obligations construed and developed under human rights law can inform the application of the norm under refugee law. Secondly, although an assessment conducted singularly under the relevant international human rights norms would not entail a determination of refugee status, States would nonetheless be under an obligation to ensure individuals have access to effective procedures for refugee status determination.
92 V Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in R Rubio-Marin (ed), Human Rights and Immigration (OUP 2014) pp 19-20.
93 HRC, El Dernawi v. Libyan Arab Jamahiriya (2007) CCPR/C/90/D/1143/2002 (2007); HRC, Bakhtiyari v. Australia, CCPR/C/ 79/D1069/2002 (2003).
94 Council Directive 2004/84/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [29 April 2004] (Qualification Directive); UNHCR EXCOM, Conclusion No 103 (LVI) ‘Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection’ (2005) para h.
95 UNHCR, ‘Guidelines on International Protection No.1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (7 May 2002) HCR/GIP/02/01.
96 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations’ n10).
2.2 Scope ratione loci of the principle of non-refoulement under refugee and human rights law
A State’s obligation to refrain from refoulement, as understood under the Refugee Convention and supplemented by relevant human rights treaties, is limited to the confines of the jurisdictional reach of the relevant instruments. Certain States have refused to recognise the extraterritorial applicability of the norm, thus construing measures of interception and transfer to third State as legal. Whilst some scholars, argue that such measure are ‘an extension of the reach and power of the State’ that is ‘not accompanied by territorial (or extraterritorial) responsibility’, others assert responsibility does follow.97 This section will first look to the scope of the principle of non-refoulement under refugee law and human rights law as ascribed by the text of the relevant instrument. Secondly, this section will discuss how the use of extraterritorial migration control measures can constitute a breach of an obligation to fulfil a duty in good faith. Finally, as the studied measures concern interceptions at sea, the relevance of the maritime laws in assessing jurisdiction or control will be assessed.
2.2.1 Jurisdictional scope of the relevant instruments
Article 33(1) does not contain an express territorial limitation. The text of the Refugee Convention provides only one territorial limitation: under article 1A(2) only persons outside their country of nationality or habitual residence fall within its scope.98 The UK COA in the Roma Rights case took the view that ‘Article 33(1) forbids “refoulement” to “frontiers” and […] it cannot comprehend action which causes someone to remain on the same side of the
97 V Misilegas, ‘Extraterritorial Immigration Control in the 21st Century: The Individual and the State Transformed’ in V Mitsilegas and B Ryan (eds) Extraterritorial Immigration Control: Legal Challenges (BRILL 2010) p 58.
frontier as they began’.99 Apart from this, it is widely accepted that the principle of non-refoulement extends to non-rejection at the frontier and to actions taken extraterritorially.100 However, this expansive application is not unconditional and various tests have been put forward to delimit the acts or omissions that would constitute an exercise of extraterritorial jurisdiction. Senior Refugee Law Advisor at UNHCR Wouters, has stated that in order to establish that the act is within the scope of article 33(1), a ‘consequential relationship or causal link between the State’s conduct and the fact that the refugee is forced to go to a place where he is at risk’ must be proven.101 He further contends that ‘the extent to which the State party has actual control or authority over the refugee and his right to be protected from refoulement is essential to extraterritorial responsibility’.102 Lauterpacht and Bethelehem, in discussing what constitutes control for the purposes of extraterritorial refoulement, refer to the territorial and personal tests as developed by the HRC and the ECHR.103
Under article 2(1) of the ICCPR, a State must undertake ‘to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights’ in the instrument. Specifically, the HRC argued article 2(1) could ‘not imply that the State party concerned cannot be held accountable for violations of rights under the treaty which its agents commit on the territory of another State’.104 As such, persons ‘subject to its jurisdiction’ includes
99 European Roma Rights Centre and Others v. the Immigration Officer at Prague Airport and the Secretary of State for the Home Department [2003] EWCA Civ 666, para 31; Upheld by House of Lord in R v Immigration Officer at Prague Airport, ex parte Roma Rights Centre [2004] UKHL 5, [2005] 2 AC 1.
100 Discussed at the Nansen Symposium (27-30 June 1976); M Raveendran, ‘Plight of the Boat People: How to Determine State Obligations to Asylum Seekers’ (2012) 87(3) Notre Dame Law Review, p 1288.
101 C W Wouters (n81) p 53. 102 Ibid, p 53.
103 Ibid, p 54.
104 HRC, Lopez Burgos v Uruguay (29 July 1981) Comm No 52/1979, paras. 12.1–12.3; confirmed in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 111.
‘anyone within the power or effective control’ of the State even where acts occur extraterritorially.105 The test for effective control looks to ‘the State’s relationship with the relevant impugned act and the person affected’ and not its geographical location.106 General Comment 31 specifically makes reference to the States’ obligations under articles 6 and 7 of the ICCPR towards all persons within its jurisdiction, especially asylum-seekers.107
There is no general provision pertaining to jurisdiction within the CAT. The territorial clause mentioned in article 2(1), applies to acts of torture performed by the State itself and does not address return to such a situation.108 However, the ComAT has agreed that articles 2 and 3 read in light of the object and purpose of the treaty and with the aim of jurisdiction under human rights instruments in mind welcome a test of factual control. The applicability of this test to acts on the high seas was considered in the Marine I case.109 Although the case concerned the actions of Spain in the context of a rescue, the insights provided by the ComAT as to the applicability of article 3 is translatable to interception operations. They recalled that State jurisdiction refers to any territory where it exercises ‘directly or indirectly, in whole or in part, de jure or de facto effective control’ and that such jurisdiction applies to all treaty provisions. 110 Relevant factors in the assessment of control include the State’s factual involvement in the particular activities rather than legally defined roles under mutual agreements, although these are useful in determining whether a State is authorised to act outside its territory.111 They found Spain or its actors exercised such control from the moment 105 HRC, ‘General Comment No 31’ (2004) CCPR/C/21/Rev.1/Add.1326.
106 S Joseph and A Fletcher, ‘Scope of Application’ in D Moeckli, S Shah and S Sivakumaran (eds) International Human Rights Law (2nd edn, OUP 2014) p 133.
107 HRC, ‘General Comment No 31’ (n105), paras 10-12. 108 C W Wouters (n81) p 438.
109 ComAT, J.H.A v Spain (Marine I) (21 November 2008) CAT/C/41/D/323/2007. 110 Ibid, para 8.2.
111 K Wouters, M den Heijer, ‘The Marine I case: a Comment’ (2009) 22(1) International Journal of Refugee Law, p 11.
of rescue until the repatriation took place. Scholars Wouters and den Heijer argue that this test is reminiscent, albeit broader, of the personal control test applied by the EHCR and HRC in cases of arrest and detention by a State in the territory of another State.112 Indeed, in following the ComAT’s decision, a State would be unequivocally bound by the principle of non-refoulement in the context of interceptions at sea, regardless of the terms of previously concluded agreements, from the time of interception until control is transferred or ends.
2.2.2 Principle of good faith
States using measures that extraterritorially deny access to individual assessment procedures may be breaching their obligation to objectively perform and interpret the Refugee Convention in good faith.113 Indeed, States are under an obligation not to engage in acts or omissions whose overall effect would render the fulfilment of its treaty obligations ‘obsolete, or defeat the object and purpose of a treaty’.114 Whilst in the context of public international law considerations of sovereignty will generally prevail, where the treaty concerns the protection of individual rights ‘good faith may require a more nuanced approach’, ‘a reasonable interpretation or a response more particularly in harmony with changing circumstances and evolving understanding’.115 However, there is a lack of consensus between State practice on the one hand, and publications of international legal scholars and entities on the other, as to whether extraterritorial acts aimed at preventing access to refugee status mechanisms do indeed amount to violations of good faith.
112 Ibid, p 10.
113 Derived from the principle of good faith. Case concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7, paras 114- 142; VCLT (n54); Nuclear Tests Case (Australia v France) (Merits) [1974] ICJ Rep 253, para 46.b.
114 G S Goodwin-Gill, J McAdam, The Refugee In International Law (3rd edn, OUP, 2007) Chapter 7, Part 5.4, p 387.
115 J McAdam, ‘Background, Interpretation of the 1951 Convention’ in A Zimmerman, F Machts, J Dorschner (eds) ‘The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary’ (OUP 2011) para 51.
States have from an early stage strongly opposed the idea that the obligation from non-refoulement may apply to claimants not present within the territory of the State. Judgments emanating from the USA, Australia and the UK demonstrate an outright rejection of such a broad interpretation by superior courts. In the contentious case of Sale v Haitian Centers Council, the SC held that ‘the text of Article 33(1) cannot reasonably be read to say anything at all about a nations actions towards aliens outside its own territory’.116 As such, the obligation applies only to persons physically present in the host country.117 The Court relied on a textual interpretation of the word ‘refoulement’ as a defensive act of resistance to argue that the prohibition could not have extraterritorial effect.118 They also looked to negotiating history of the Convention, particularly the comments made by the Dutch and Swiss Delegates at the 1951 Conference of Plenipotentiaries, arguing that their position supported such a view and had not been opposed by later disagreement.119 The HoL in the Roma Rights case adopted this view, Lord Bingham stating ‘there is no want of good faith if a State interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do’.120 As the SC has done, the Court relied on the text, arguing that the object and purpose could only be interpreted within the constraints of the provision.121 Furthermore they relied on the 1988 ICJ judgment of Nicaragua v Honduras and the work of Grahl-Madsen to argue that the Convention could not impose un-contemplated extraterritorial obligations on States who had ratified it.122
116 Sale (n15) para 183. 117 Ibid, para 187.
118 Ibid, paras 179-183.
119 Ibid, paras 184-187.
120 Roma Rights Centre (n99) para 19. 121 J McAdam (n115) para 53.
122Border and Transborder Armed Actions (Nicaragua v Honduras) (Judgment) [1988] ICJ Rep 68, p 105, para 94; A North, ‘Extraterritorial Effect of Non-Refoulement’ (FCA) [2011] FedJSchol 19.
Rather than constituting opinio juris, these are examples of isolated State practice too disparate to evidence the emergence of a new rule.123 Furthermore, the reasoning behind both judgments was heavily criticised by academics, human rights treaty bodies and the UNHCR. Justice Blackmun expressed his dissatisfaction with the majority’s interpretation of ‘refoulement’ in Sale, arguing that a broad interpretation was clearly discernible from the text and that lack of subsequent practice could not be taken as rejection of such an interpretation.124 The OAS and its IACHR both looked into the case and found the interdiction measures that prevented asylum-seekers access to fair hearings violated international law.125 They argued the Court’s narrow interpretation of article 33(1) ran counter to the State responsibility for persons falling under its effective control. Legal scholar, Goodwin-Gill, argued that the obligation extends to refraining from extraterritorial interception or pre-entry clearance measures used to ‘avoid or to “divert” the obligation which [the State] has accepted, or to do indirectly what [the State] is not permitted to do directly’.126 He argued the judgments misinterpreted article 33(1) as imposing an obligation on States to grant a residence permit, commenting instead that the overriding objective of article 33(1) is the prevention of the claimant’s exposure to persecution.127 Authors Hathaway and McAdam as well as the UNHCR in its advisory opinion, also favoured the extraterritorial interpretation of article 33(1), arguing that this is supported by the Convention’s text, its
123 North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany / Netherlands) [1969] ICJ Rep 3, p 45, para 81.
124 Ibid, paras 195-198.
125 OAS Press Release, ‘OAS Human Rights Committee Calls Clinton Haitian Interdiction Policy a Violation of International Law’ (19 March 1993); IACHR The Haitian Center for Human Rights et al. v United States (1997) Case 10 675, Rep no 51/96, para 163.
126 G S Goodwin-Gill, J McAdam (n114).
127 M R Von Sternberg, ‘Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for Those Seeking to Access Surrogate International Human Rights Protection’ (2014) 2(4) JMHS, pp 329-360.
