Humanitarian Visas And Extraterritorial . - Diva-portal.se
FACULTY OF LAWStockholm UniversityHumanitarian Visas andExtraterritorial Non-RefoulementObligations at EmbassiesFanny Martika SvensénThesis in International Law, 30 HE creditsExaminer:Stockholm, Autumn term 2016
AbstractThe immigration control systems of most developed states today seek to prevent asylum seekersand other migrants from reaching their territories, as states presume that non-refoulement and otherhuman rights and refugee protection obligations only apply to individuals within their territory.This has forced refugees to travel irregularly with devastating consequences, and as a response tothe escalating humanitarian crisis of large irregular migration flows, the idea of humanitarian visasemerged as a way of enabling legal pathways for asylum seekers and refugees, while allowingstates to maintain extraterritorial migration control mechanisms.How the principle of non-refoulement relate to the processing of such visas is the main focus of thisthesis. It aims to answer the question of to what extent international refugee and human rightslaw infer non-refoulement obligations of states when an individual applies for a humanitarian visa atdiplomatic or consular offices located in other states.It uses a classical analytical legal method in interpreting the extraterritorial scope of the principleof non-refoulement as laid down in international treaties. The thesis concludes that non-refoulementobligations stemming from several treaties under international refugee and human rights applywhen, and wherever, a state is exercising jurisdiction – and that the processing of humanitarianvisas can be considered as such an exercise of jurisdiction that trigger these obligations. Finally, itconcludes that the non-refoulement principle may prevent states and their diplomatic missions fromdenying access to an applicant or from removing it to the territorial state.2
Table of Contents1. Introduction1.1 Scene Setter1.2 Purpose and Research Question1.3 Method and Material1.3.1 A Final Word on Interpretation1.4 Limitations1.5 Outline4468910112. Background2.1 State Sovereignty, Jurisdiction and Territory2.2 The Law of Diplomatic Relations2.2.1 Functions of Diplomatic and Consular Missions2.2.2 Limitations on Jurisdictional Competence2.2.3 Diplomatic Asylum2.3 The Principle of Non-Refoulement2.3.1 The Refugee Convention2.3.2 Human Rights Instruments2.3.3 Chain Refoulement and Risk of Further Delivery2.4 Humanitarian Visas2.4.1 Humanitarian Visas - Concept and Purpose2.4.2 Examples of State Practice2.4.3 Relationship Between the Applicant and the Potential Host State2.5 The Point of Departure1313141515161718192122222324243. The Reach of the Principle of Non-Refoulement3.1 The Refugee Convention3.1.1 Territorial Application3.1.2 Frontiers of States, High Seas or Beyond Any Geographical Limitation?3.1.3 International Human Rights Standards Informing the Interpretation of Article 33(1)3.2 Human Rights Treaties3.2.1 International Covenant on Civil and Political Rights3.2.2 The Convention Against Torture3.2.4 The Convention on the Rights of the Child3.2.5 The European Convention on Human Rights3.3 Jurisdiction as the Threshold Criterion26262728323333353838384. Extraterritorial Jurisdiction Defined?4.1 Extraterritorial Jurisdiction in International Law4.2 ‘Jurisdiction’ for Human Rights Protection Purposes4.2.1 Jurisdiction de Jure4.2.2 Jurisdiction on Factual Grounds4.2.3 Jurisdiction at Embassies and Consular Premises4.2.4 Jurisdiction and Migration Control4.3 The Processing of Humanitarian Visas as a Case of de Jure and de Facto Jurisdiction40404243454951525. Extraterritorial Non-Refoulement Applied5.1 The Act of Refoulement5.1.1 Non-Refoulement Obligations Stemming from Human Rights Norms5.1.2 Explicit Non-Refoulement Obligations5.3 Non-Refoulement Constraining the Acts of Diplomatic Missions5.4 A Final Note on The Lack of a Right to Access Territory5656565864656. Conclusion67Afterword68Bibliography69Table of Cases75Table of Treaties and Other International Instruments783
1. Introduction1.1 Scene SetterThe immigration control systems of most developed states are today characterized by ‘extraterritorial’ mechanisms that control the movement of refugees and migrants before they reach theterritory of the destination state.1 With the emergence of modern systems of social organizationand regulation of large parts of economic and social life, governments began to safeguard criticalentitlements for the benefit of their own citizens. The idea of the nation state and the importanceof boundaries between insiders and outsiders is seen most clearly in the development of comprehensive systems of migration control.2 States are within their rights to decide over the admittanceof aliens to their territory – it is among the most defining prerogatives of the nation state.3 However, although this sovereign right is well established, states’ discretion in the adoption and enforcement of migration policies is limited by their obligations under international and regionalhuman rights and refugee law. Treaties on human rights and rights of refugees give at hand thatin certain circumstances an alien may enjoy the protection of treaties even in relation to entry orresidence. Of great importance is the fundamental principle of non-refoulement that places a limitation on the right of states to control who remains on their territory, and when an individualmakes a refugee claim it obliges states to consider the merits of that claim before removing theindividual. Resting on the premise that non-refoulement and other human rights obligations onlyapply once the asylum seeker has reached the territory of a state, denial of access to territory hasbecome the objective of many states wishing to avoid the requirement to abide by certain peremptory obligations, such as non-refoulement.4 The various extraterritorial migration control mechanisms that states have developed thus seek to prevent asylum seekers from entering their territory, where they could assert their entitlement to the benefits of international refugee and humanrights law.5 Examples of such mechanisms are visa requirements imposed on nationals of refugee-producing countries, identity controls, sanctions against any carrier that agrees to transport aThis is especially true for European countries, but also for the US, Canada, Australia and other developed countries,J. C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005), p. 293.2 Ibid., p. 83.3 R. Jennings and A. Watts (eds), Oppenheim’s International Law vol 1 (Oxford University Press, 9th ed., 1992), pp. 897901 and M. N. Shaw, International Law (Cambridge University Press, 7th ed., 2014), p. 471.4 B. Ryan, ‘Extraterritorial Immigration Control : What Role for Legal Guarantees?’ in B. Ryan and V. Mitsilegas(eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers, 2010), p. 35.5 T. Gammeltoft-Hansen and J. Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’, 53:1 ColumbiaJournal of Transnational Law (2015), p. 241.14
person without a visa or identity documents, immigration officials in foreign airports, as well asinterception of asylum seekers and other migrants on the high seas.6At the same time, the world has seen an unprecedented number of people fleeing their countriesdue to conflict, violence, human rights abuses, extremism, and poor governance. According tothe United Nations High Commissioner for Refugees (UNHCR), over 60 million people are currently displaced.7 Due to the extraterritorial migration control policies employed by large parts ofthe developed world, there are few legal ways to reach countries that could offer protection. Refugees and asylum seekers are forced to take to desperate measures, resorting to the services ofpeople smugglers, the use of false documents and dangerous means of transportation. They areoften obliged to travel in inhumane conditions where they may be exposed to exploitation andabuse, as well as placing their lives at risk. Looking at the European situation for instance, everyyear thousands of men, women and children drown trying to reach Europe and refugees andother migrants spend over a billion euro per year to reach the European Union (EU), while thecost of deportations from the EU is, equivalent, close to a billion euro per year.8In search of solutions to the humanitarian crisis of large irregular migration flows and the lack oflegal pathways for the admission of refugees and asylum seekers, the idea of “humanitarian visas”has made its way to agenda. For example, in 2016, during a high-level conference on Syrian refugees organised by UNHCR, several Latin American and European countries announced newhumanitarian visa programmes as well as the expansion of existing ones, and in September theGeneral Assembly adopted the New York Declaration for Migrants and Refugees, where thecommitment to consider the expansion of various humanitarian admission programmes wasmade.9 It is becoming clear that humanitarian visas are seen as way of avoiding dangerous andexpensive irregular journeys of refugees while allowing states to maintain extraterritorial migration control mechanisms. There is no standard model of humanitarian visas, but they are characterised by procedures that allow the individual to approach the potential host state abroad at emG. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007), p. 370,K. Ogg, ‘Protection Closing to Home? A Legal Case for Claiming Asylum at Embassies and Consulates’, 33:4 RefugeeSurvey Quarterly (2014), p. 86, Hathaway, supra note 1, p. 291 and Gammeltoft and Hathaway, supra note 5, p. 241.7 UNHCR Global Trends: Forced Displacement in 2015 (Report, 20 June 2016) http://www.unhcr.org/576408cd7 .8 G. Noll and T. Gammeltoft-Hansen, Humanitarian Visas Key to Improving Europe’s Migration Crisis, Raoul WallenbergInstitute Policy Brief, 18 April 2016, http://rwi.lu.se/2016/04/humanitarian-visas/ and J. Clayton and H. Holland, Over One Million Sea Arrivals Reach Europe in 2015, 30 December 2015, /million-sea-arrivals-reach-europe2015.html?query humanitarian%20visas .9 See UNHCR, Geneva Conference on Syrian Refugees Ends with New Pledges of Places, Recognition of Challenges Ahead, 30 March2016, http://www.unhcr.org/cgi-bin/texis/vtx/search?page search&docid 56fc0cf06&query visa andNew York Declaration for Refugees and Migrants, GA Res A/71/L.1, UN GAOR, plen mtg, 71st sess, 3rd to 7th meeting,Agenda Items 13 and 18, UN Doc A/71/L.1 (19 September 2016), para. 79.65
bassies and consulates and apply for asylum or some form of protection, and that the state grantsan entry permit in case of a positive response, either preliminary or final.In light of the discussions on humanitarian visas, embassies and consulates may be faced withindividuals in search of refuge. Questions of how these situations are related to the obligations ofstates, notably the principle of non-refoulement, under international refugee and human rights laware of interest for this study. States usually perceive these obligations as essentially territorial. Thisidea implicates that individuals need to enter a state to successfully claim protection, and as longas they have not succeeded in doing so, the approached state is discharged of its protection obligations under international law. That states can rely on the sovereign prerogative to control entryinto its territory without constraints ordinarily posed by refugee and human rights law is disturbing. However, the perception that protection obligations follow territorial borders might bechanging as the general development in international human rights law is moving towards anextension of obligations of states beyond territorial borders. The principle of non-refoulement mayapply to activities of states beyond their sovereign territory, especially as the concept of jurisdiction in human rights law develops.10 This raises the question of whether humanitarian visas arediscretionary acts of states wishing to facilitate the journey towards protection, or if they inferobligations on states under international refugee and human rights law. In the event that an asylum seeker makes a claim for protection at an embassy or consulate, is that state prevented fromremoving that individual due to the prohibition against refoulement?1.2 Purpose and Research QuestionIn situations where an individual approaches a state on foreign territory demanding protection, itis critical to determine whether international obligations protecting against refoulement have equalbearing in territorial and extraterritorial situations, and what the nature of the relationship between the approached state and the individual must be to trigger these obligations. Questions ofthe extraterritorial application of human rights treaties and international refugee law will be at thecentre of the inquiry, as well as the concept of jurisdiction. The thesis will touch upon the classiccollision between the concept of state sovereignty, including jurisdiction seen as primarily territorial, and the universal aspirations of human rights law.C. Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’, 12:2 HumanRights Law Review (2012), p. 287.106
The aim of the study is to investigate humanitarian visas with reference to non-refoulement obligations in the Convention Relating to the Status of Refugees (Refugee Convention),11 the International Covenant on Civil and Political Rights (ICCPR),12 the Convention against Torture (CAT),13the Convention on the Rights of the Child (CRC)14 and the European Convention on HumanRights (ECHR).15 In 2005, Gregor Noll wrote that the Refugee Convention, CAT, and ICCPRdid not impose a legal obligation to process an asylum claim at an embassy or consulate, but thatthe ECHR and the CRC indeed did so under certain – although exceptional – circumstances.16Since then there have been important developments in jurisprudence on the extraterritorial reachof international human rights law, and the principle of non-refoulement has been strengthened. Thismight have altered the position on whether states are prevented from removing or refusing entryto an individual demanding protection at an embassy or consulate.The research question is as follows:To what extent do international refugee and human rights law infer non-refoulement obligations ofstates when an individual applies for a humanitarian visa in order to claim asylum at diplomatic orconsular offices located in other states? The question can be divided into three sub questions:1. What obligations do states have under international refugee and human rights law beyondtheir territorial borders? More specifically, do the non-refoulement obligation operate extraterritorially?2. What amounts to an exercise of jurisdiction for the purpose of human rights instruments?Can the issuing of humanitarian visas be regarded as such an exercise of jurisdiction?3. Does the principle of non-refoulement prevent states from removing, or refusing entry toindividuals with a well-founded fear of persecution or that could be exposed to serioushuman rights violations?Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22April 1954), as amended by Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS8791 (entered into force 4 October 1967).12 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (enteredinto force 23 March 1976).13 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).14 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2September 1990).15 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213UNTS 221 (entered into force 3 September 1953), as amended.16 G. Noll, ’Seeking Asylum at Embassies: A Right to Entry under International Law’, 17 International Journal of RefugeeLaw (2005).117
1.3 Method and MaterialThis thesis will use a classic analytical legal method to examine the accepted sources of international law. The three formal sources of international law are listed in article 38 of the Statute ofthe International Court of Justice and consist of international conventions (treaties), customaryinternational law and general principles of law.17 Norms of human rights, refugee law and diplomatic relations, as well as the concept of jurisdiction and territorial sovereignty, stem from international law and can all be derived from these sources. While human rights law expand the scopeof international law in obliging state parties as to their treatment of people, they form part of thegeneral system of international law.18 Consequently, the legal analysis will be based on the sourcesand interpretative methodology normally applicable within international law.International refugee law is generally seen as separate from human rights law, although the tworegimes are related to one another. Conventions on human rights form an overlapping pattern ofprovisions. Most states are parties to most of the international treaties, in addition there are regional treaties that are widely ratified within their regions.19 This thesis will not account for regional instruments apart from the ECHR and the case law of the European Court of HumanRights (ECtHR), which has the statutory competence to interpret the Convention.20 This European focus is justified by the comprehensive jurisprudence of the Court and its influence on thedevelopment of international human rights law in general.21 Comparisons will be made to otherregional systems and supervising organs when appropriate.A major source of development in international law in general, and human rights law in particular, is that of secondary norms and non-binding instruments. Case law from international, regional and national courts and committees as well as resolutions, general comments and publicationsof United Nation (UN) bodies and international organisations will be used to interpret the primary sources. UN treaty committees such as the Human Rights Committee (HRC) and the Committee Against Torture (CAT Committee) have individual complaint mechanisms in which theycommunicate ‘views’. These views are not binding per se, but are often influential in bringingabout internal legislative or administrative changes.22 An important part of all of the treaty committees’ work is their interpretative statements called ‘general comments’ that serve to clarify theStatute of the International Court of Justice, article 38(1).J. Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 7th ed, 2012), p. 635.19 Ibid., p. 638.20 Convention for the Protection of Human Rights and Fundamental Freedoms, article 32, supra note 15.21 J.G. Merills, The Development of International law by the European Court of Human Rights (Manchester University Press1995).22 Crawford, supra note 18, p. 640.17188
application of specific provisions or issues relating to the treaties. Neither these are binding, butare nevertheless of significant normative value.23 The International Court of Justice (ICJ) statedthat when considering issues arising in relation to human rights treaties, it will ascribe “greatweight” to the interpretation of the treaty adopted by relevant court or committee.24 TheUNHCR has the supervisory responsibility of the Refugee Convention by Statue, although it isless clear what normative value their standards have.25 When their views are not formally codifiedthrough the authoritative process of Execut
gees organised by UNHCR, several Latin American and European countries announced new humanitarian visa programmes as well as the expansion of existing ones, and in September the General Assembly adopted the New York Declaration for Migrants and Refugees, where the
Policeman for the World: The Rise in Extraterritorial FCPA Enforcement and Foreign Investment Competition By HANS B. CHRISTENSEN, MARK MAFFETT, and THOMAS RAUTER* June 2020 Abstract: Using insights gained from Foreign Corrupt Practices Act (FCPA) enforcement actions against corporations from 1977 to 2017, we show that a mid-2000s increase in US extraterritorial
II. Extraterritorial jurisdiction as a tool to control transnational corporations : the precedents This report is prepared against a background characterized by an increasingly frequent use by States of extraterritorial jurisdiction in order to control transnational corporations. Four factors may be put forward, which explain this development.
Protection (Class XA) and Refugee Humanitarian (Class XB) Visas 2014 - IMMI 14/117 (22 December 2014). 12 Section 31 of the Act provides that there are to be prescribed classes of visas, as well as the classes provided for in sections of the Act, including ss 35A(2), (3) and (3A). The definition of protection visa in s 5(1) provides that .
Cuba. And he bought visas for my family, my sis-ter, myself, and my parents. And if I remember correctly, they were 1,500 apiece. And after he got the visas, the entry visas to Cuba, he purchased places on the ship. And the ship that had room was the St. Louis. And that left on May 13, 1939. My father spent all his money on this, we went first .
The aim of this guidance is to assist Humanitarian Coordinators (HCs) and HCTs to develop a comprehensive and humanitarian system-wide protection strategy in a manner that is light and enhances the effectiveness and performance of country-level humanitarian responses.2 This guidance is deliberately
This document is produced on behalf of the Humanitarian Country Team and partners. This document provides the Humanitarian Country Team’s shared understanding of the crisis, including the most pressing humanitarian needs and the estimated number of people who need a
Aspects of the denial of humanitarian assistance The denial of humanitarian assistance will be defined in this paper as follows: a situation where, as a result of the intentional behaviour of certain persons, humanitarian assistance does not reach its intended ben-eficiaries. In order to shed light on how such a denial can occur in prac-
M20924891 Lopez, Jose Gerardo Citation Arraignment Filing Agency #: 20-604 M20920196 Lopez, Jose Manuel, JR Jail Release Arraignment Filing Agency #: 20-26090 M20924360 Lopez, Manuel Louis Surety Bond Jury Trial M20923837 Lopez, Michael Paul Citation Arraignment M17926273 Lopez, Raymond Fugitive Arraignment M19928461 Lopez, Robert A DPD: Public .
