Twenty year ago, on June 21, 1993, the United States Supreme Court upheld in an 8-1 decision the policy of high-seas interdictions of Haitian asylum seekers on their way to Florida. The question of high-seas interdiction of asylum seekers has not come before the United States Supreme Court ever since Sale v. Haitian Centers Council. A comparative perspective, however, reveals quite a different story. As Oxford legal scholar Guy Goodwin-Gill recently said, the decision was “a model” for “all that has followed.” What lessons about human rights are there to be learned from the decision’s peculiar afterlife?
Justice Stevens, writing for the majority, found that refugee protection obligations do not apply exterritorialy. The policy of returning Haitian “boat people,” which Reagan initiated and which George H. W. Bush revamped, was deemed legal. Many of the asylum seekers were sent to Guantanamo Bay, a policy that heralded contemporary detention policies there. Justice Blackmun, who wrote the dissent, responded that the majority misread the 1951 Refugee Convention and its 1967 Protocol, which the United States had by then incorporated into its own law, with the 1980 Refugee Act. Blackmun cited the experiences of Jews persecuted in Europe during WWII, who were repatriated after seeking asylum in the United States. “We should not close our ears” to the Haitian asylum seekers, he wrote.
The New York Times immediately asked about the decision’s potential global ramifications: “Will this ruling by one of the most influential courts in the world set a tempting precedent, particularly for developing nations?” According to this projection, a decision that many legal experts felt violated fundamental rights would somehow travel and spell new violations the world over.
The leading advocate for the asylum seekers, Harold Koh, spent his academic career writing in the aftermath of Sale, explaining why this prognosis was wrong. Through a dynamic he called transnational legal process, the United States would eventually be guided in the right direction, he thought. When foreign legal institutions and global civil society will reexamine the same issue, they will bound to respond to refugees’ claims, in turn compelling the United States to amend its judges’ error.
In a move that seemingly follows Koh’s predictions from twenty years earlier, the European Court of Human Rights recently revisited Sale. The February 2012 judgment, which considered Italy’s policy of returning asylum seeker boats to Kaddafi’s Libya, ends with a dramatic note:
The words of Justice Blackmun are so inspiring that they should not be forgotten. Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea […] “We should not close our ears to it.”
The paragraph seems to suggest that, indeed, the arc of history is bent toward justice. In other contexts too, one may dare surmise, transnational courts will remedy American violations of international law. After all, in recent December the European Court of Human Rights found that the CIA had tortured a German citizen, Khaled El-Masri. In both cases, a more robust form of accountability is only a matter of time.
Such an optimistic conclusion, however, is probably misguided, and the story of Sale is a rather darker one. The decision’s important influence was not on the European Court of Human Rights, which rejected it, but on international executive branches, which implemented it enthusiastically. It is now clear that the concerns the New York Timesexpressed were much more accurate than Koh’s optimism.
The high-seas interdiction of Haitian “boat people” rested on a model of cooperation with the country they fled—with Haiti. Traditionally, save for few exceptions, international law protects a “freedom of the high seas”: beyond state jurisdiction, there can be no interference with a vessel’s movement. States are permitted, however, to intercept vessels that leave their own ports. Bush’s executive order rested upon a collaborative effort: Haiti agreed that the United States would intercept the asylum seekers and return them to Haiti. This cooperative model has been remarkably influential ever since.
Practically, what this meant was that European and Australian enforcement agencies have in the last twenty years outsourced their border enforcement to executives in migrant-sending countries, in North and West Africa (in the case of Europe), and Southeast Asia (in the case of Australia). Domestic policy was implemented by foreign agencies, generally immune from the jurisdiction of domestic courts—and even of transnational courts like the European Court of Human Rights. The model, sometimes referred to as the “externalization” of borders, has become quite familiar due to the advocacy of groups like the Paris-based coalition Migreurop. What is more forgotten, perhaps, is the role of the American precedent.
It was not so-called “developing” countries, as the New York Times suggested, that took the example of Bush’s executive order, though they too had a role. More significantly, the initiative belonged to “developed” countries located on the global fault lines with “developing” partners. Italy was the pioneer. In March 1997, confronting a wave of unauthorized migrants fleeing Tirana, Italy concluded a bilateral agreement with the Albanian government, allowing it to pursue high-seas interdictions. As Italian legal scholar Tullio Scovazzi explained, the legality of this measure was premised on Bush’s executive order. The Italians have reportedly been repatriating Albanian refugees since 1991. Now, the measure was justified.
The next landmark step started immediately after 9/11. Australian public opinion was arguably growing increasingly hostile to unauthorized boat arrivals since 1977, when the first Vietnamese refugee boat arrived. But the fact that most boat people were now coming from Afghanistan and Iraq allowed the government to reframe the issue as one of national security. With the “Pacific Solution,” thousands of islands were redefined so as no longer to count as Australian territory for immigration purposes. Thus, asylum seekers could more easily be intercepted extraterritorially, and sent to detention and offshore processing sites on Christmas Island, Manus Island in Papua New Guinea, and the tiny island nation of Nauru. This demanded legal justification, which Australian government lawyers duly provided. One comment is particularly illuminating: “Support for this conclusion [that the policy is legal] is to be found in the U.S. Supreme Court case of Sale v. Haitian Centers Council Inc. … [I]n an 8:1 decision the Court […] concluded that the Convention did not place any limits on the President’s authority to repatriate aliens interdicted beyond the territorial seas of the United States.”
In both Europe and Australia, the model of the Haiti paradigm took a life of its own, far more sophisticated than the United States’ cooperation with Haiti. Italy established similar relations with North African countries, first with Libya. Spain pursued agreements with West African countries. In 2005, the European Union established Frontex, a supranational executive agency designed to facilitate cooperation with foreign border-enforcement police. The “coordinated” model of border enforcement is often couched in regulations embracing human rights rules. In its Work Program for 2010 to 2013, the agency “identified ‘humanity’ as one of the core values which shall be endorsed, shared, lived and performed by each member of staff and which shall form the foundation of Frontex activities at all levels.” It far from clear if these regulations have any positive effect from the perspective of asylum seekers.
Among other examples, an ironic illustration of the result of this transnational enforcement is one the Nouadhibou detention center, which Amnesty International criticized Spain for using to hold migrants in substandard conditions. While Mauritanian authorities referred to this place as a “welcome center,” locals preferred the name “Guantanamito,” or “little Guantanamo.” The name reflects the reputation of American detention practices in the context of the “War on Terror,” but echoes the earlier function of Guantanamo. When Mark Boulware, then the U.S. ambassador to Mauritania, arrived to inspect the facility, he found that “the conditions for detainees are no worse than those of average Mauritanians.”
In Australia, the “Pacific Solution” was initially abandoned, after the popularity of the program was soiled by the images of hunger strikes. Recently, when the government attempted to reintroduce offshore detention under an agreement with Malaysia, the Australian High Court stroke the framework down. While human rights advocates initially celebrated this decision, it foreshadowed a more robust initiative of cooperative enforcement that Julia Gillard’s government put in place. The cycle of hunger strikes and demonstrations has since been renewed. Rather than Australian courts, now the host government of Nauru is handling the prosecution of inmates who vandalized the facilities. Though the program enjoys bipartisan support, a number of human rights groups have been consistently opposing it, often by comparing it to Guantanamo. The most recent episode in the history of the Australian policy is Prime Minister Gillard’s decision, in late May, to excise mainland Australia from its own “migration zone,” in a move that further stretches principles first laid out with the controversial “Pacific Solution.”
What lessons, then, can we take from Sale at its anniversary? The outsourcing of border enforcement was only possible in return for various kinds of aid. The trajectory demonstrates the way in which the sovereignty of “developing” states has been put on a global market. Selectively buying parts of it, “developed” states implemented their own policies, far from judicial review. When both enforcement and judicial review go transnational, executive and judicial competences are bifurcated, creating a global accountability deficit.
On a more general note, twentieth-century international law is often understood as stemming from a suspicion of sovereignty, with its legacy of destruction and genocide. Instead of this disastrous idea, international lawyers have posited cross-border cooperation as a more gentle civilizing force. The European Union grew out of this vision immediately after World War II. In the United States, international lawyers like Harold Koh celebrated such cooperation in the post-Cold War moment. However, in the last two decades it has become clearer than ever before that not only sovereignty’s unilateralism but also internationalist cooperation may have its own human rights violations.
Critics of global inequality have long appreciated this insight. In the context of the “War on Terror,” the extraordinary renditions program demonstrated it in an unprecedented way. The history following from Sale reflects the discontents of cooperation in terms of access to asylum, or humane treatment in immigration detention, rights that are supposed to protect some of the world’s most disempowered populations.