Non-Refoulement at SEA and the Effectiveness of Asylum Protection - Essay Example

? The Principle of Non-Refoulement at SEA and the Effectiveness of Asylum Protection The principle of non-refoulement was initially stated in Article 33(1) of the 1951 Geneva Convention concerning the Status of Refugees (1951 Refugee Convention). The Article has a provision that no contracting country shall return or expel a refugee in any way to the borders of territories where his freedom or life may be endangered. The principle of non-refoulement is the foundation of international refugee law and asylum. Article 14 of the Universal Declaration of Human Rights grants the right of seeking and enjoying asylum from persecution in other countries (Thomas 2011, p. 71). The principle reflects the dedication of the international community to guarantee enjoyment of human rights to all persons, including the rights to life, inhuman punishment or treatment, freedom from torture, and security of person. These rights and other rights may be endangered upon returning a refugee to danger or persecution (Andreas 2011, p. 1109). The observance of the principle of non-refoulement relates to the determination of refugee status. Arrangements or procedures for refugee identification should offer a guarantee against refoulement by ensuring that individuals entitled to protection receive it. Such arrangements or procedures are vital when a country receives both migratory movements and asylum-seekers. Respect of this principle may be most effectively ensured if claims to asylum and to refugee status are determined expeditiously and substantively (Bimal 2003, p. 23). However, sea-borne migration is alleged as a problem or a hassle by destination countries despite the refugees in awful need of protection. In some cases, countries deny refugees through invoking security concerns to refuse protection and justify the removal or non-admittance of refugees. Arrivals through the sea of asylum-seekers challenge the interpretation and application of the principle of non-refoulment and the existing regulations related to liberty and the safety of navigation. During the Vietnam War, from 1950s to 1970s, there were arrivals of several Vietnamese irregular immigrants to the coasts of neighboring countries. While dealing with these arrivals, the international community noted there was a gap in the international law. The law had no effective and useful instruments to deal with immigrants at sea, particularly with the asylum-seekers (Agnes 2009, p. 204). The key problems that remain include the identification of the rights and duties of the concerned states in different marine zones. This is with exceptional regard to the organization and administration of search and rescue operations at sea (Agnes 2009, p. 206). Another essential issue has been the question of whether the resolutions of countries to refuse the entry permission into their territories are lawfully limited. This question occurred mainly in relation to the handling of refugees and asylum-seekers, especially among the immigrants, with regard to the principle of non-refoulment. The exercise of sovereign powers in the different marine zones, pursuant to the customary international law and law of the sea, present challenges in the application of the principle of non-refoulment and the protection of refugees and asylum-seekers at sea (Schmitt, McCormack & Louise 2011, p. 544). Article 21(1) of the UNCLOS (United Nations Convention on the Law of the Sea) provides that the sovereignty of a coastal country extends beyond its internal waters and land territory. The article also defines archipelagic waters of an archipelagic country as the territorial sea. This maritime zone cannot exceed 12 nautical miles. The only exception to the exclusive authorities of the coastal country in its territorial sea contains the right of innocent passage. The coastal state shall not hinder the innocent passage of foreign vessels through the territorial sea, but it may regulate the passage conditions in the fields listed in article 2(1). An example is inter alia, which is the prevention of violation of the customs, immigration, or fiscal laws and rules of the coastal state (Erika & Jure 2012, p. 185). Alborzi (2006, p. 145) observes that when it is significant for the protection of a state’s security, the coastal state may prevent a passage which it believes not innocent and suspend the associated right in some regions of its territorial sea. Neither the refuge nor the sea law resolves the question of whether entering a country’s territorial sea constitutes entry to state territory. There is a variety of situations; one situation may be an instance where a vessel is merely exercising its right of innocent passage in a foreign state or territorial waters without any directions to head to a state’s coast. A second situation is whereby a ship is crossing the territorial waters of the coastal state to arrive at its territory. In the first scenario, the coastal state has no authority on the passing ship unless it believes the presence of illegitimate passengers or the undocumented refugees as a violation of the provisions for enjoying the right of innocent passage. Consequently, a country might refuse the entry of the ship in its territorial waters. Such denial may have consequences for persons’ enjoyment of the right of search for asylum and the right of non-rejection. In the second scenario, the ship is breaching domestic migration law, as it is ferrying irregular passengers. The state recognizes that the ship has entered its territory; therefore, the vessel is under the state’s jurisdiction. Pursuant to this opinion, the passengers of the ship enjoy the rights assured by the international responsibilities binding the interested state concerning individuals subjected to its jurisdiction. These obligations include the fundamental human rights and principle of non-refoulement. In this case, Article 31 of the 1951 Refugee Convention applies assuring immunity from penalties to refugees who unlawfully entered into the asylum state (Andreas 2011, p. 1112). If the intervention of the coastal country authorities aims at denying the entry, this means the movement of the frontier to the region where the operation takes place. The persons are not yet under the state jurisdiction and nation authorities may be limited by the principle of non-refoulement in its implication of non-rejection at the border. For example, U.S. has a policy that, if sea-borne immigrants touch the U.S. soil, piers, bridges, or rocks, then they are subject to American immigration procedures. If they are still in the sea, they are eligible for return by the Coast Guard. This policy is an example of mechanisms of non-entree, which aims at denying entrance to the territory by not giving authorization of access or through the establishment of international zones in which neither international nor domestic law apply (Natalie 2011, p. 314). The instruments of non-entree do not fully avoid the use of the principle of non-refoulment; a similarity with operation carried out on the high waters may support this approach. The United State’s behavior of returning asylum-seekers from Haiti is an example of denying entry to state territory. In addition, it portrays how countries can exercise extraterritorial jurisdiction and thereafter claim that they are not accountable for the actions that their officers commit outside national borders. The above practice of U.S. was because of narrow interpretation of Article 33(1) of the Refugee Convention. The article permits the return of refugees to persecution with the rationalization that they have not set foot on a country’s territory and the country has no duty regarding them (Flora & Helena 2011, p. 42). Based on territorial waters, two actions may violate the responsibilities deriving from the principle of non-refoulement in its meaning of non-rejection at the frontier. These principles include denial of entrance into the territorial waters and the rejection of entry into the port or of disembarkation (Anette 2008, p. 451). The first nation of arrival has the responsibility to host refugees temporarily pursuant to the concept of territorial asylum. Therefore, the vessel carrying refugees cannot be hampered from entering into the territorial waters on arrival at the boundary of the territorial sea, nor can it be refoule to territories or to high seas where the freedom or lives of refugees is endangered (Natalie 2011, p. 315). The coastal state has the exclusive competence pertaining to the access to its territory, and it decides on the entrance of irregular passengers, assessing and balancing the interests involved. It also assesses the protection required by the individuals, the security of the nation or its unwillingness. The practice offers denial of access to ports and disembarkation of asylum-seekers. Intercepted asylum-seekers might turn into persons in distress at sea. In such a scenario, the question is which countries are accountable for the rescued asylum-seekers. While examining this problem, both the international maritime law and international refugee law are relevant (Agnes 2009, p. 208). The obligation to give assistance to individuals in distress at sea is determined in both customary law and international treaty. Some reasons amount to the constitution of a problem of the rescued asylum-seekers; the asylum-seekers are not willing to return to their origin countries and no other country is obliged to allow them in its territory. Once the asylum-seekers in agony on the high seas have been rescued, it is not clear who should take accountability for them. International maritime law has no provision, which stipulates where the rescued asylum-seekers may disembark from the vessel, which has rescued them (Thomas 2011, p. 73). States have the duty not to return refugees to the borders of territories where their freedom or lives might be endangered. Nevertheless, no state has the positive responsibility to accept them. It is not apparent which state is accountable to review their requests for asylum (Guy & Jane 2007, p. 214). The international law on human rights does not contain specific binding regulations concerning stowaway asylum-seekers. The provisions concerning stowaways are compelling only as recommendations. This indicates that without a procedure of identifying the asylum-seekers, the adherence of non-refoulment cannot be ensured. The issues discussed above make it apparent that there is an absolute prohibition in the international law of refoulement. Therefore, the international community should address whether asylum-seekers should enter the territory of the nation where they are seeking and whether states should give asylum-seekers access to their territories (Geoffrey & Barbara 2005, p.16). In this regard, it is essential to note that, without access to a nation’s territory, there cannot be protection from refoulment. In order to support the principle of non-refoulement and uphold the state’s responsibilities under international law, a country has to conduct an effective and fair determination procedure of refugee status. This procedure is only possible within the territory of that state. States have accepted international obligations relating to refugees, and any implied limitation or qualification of these duties is to the detriment of human rights (Anette 2008, p. 453). Every nation has the authority to control its immigration processes. Control of immigration presupposes two prerogatives, which include blocking or denying access to a country’s territory, and guaranteeing the return of those foreigners who have succeeded in entering. Despite the fact that the immigration control is an articulation of state sovereignty, it is subject to principles and customs of global law on human rights (Bernard & Valsamis 2010, p. 37). However, human rights protection and immigration control come into conflict when asylum-seekers flee their states and try to find a safe area. Potential states of asylum are frequently unwilling to provide protection. These countries implement security mechanisms, where there is no distinction between asylum-seekers and other immigrants; this prevents asylum-seekers from accessing the territories of these countries (Anette 2008, p. 454). Conclusion It is clear that the principle of non-refoulement at sea and effective protection of asylum-seekers are dependent. States are willing to allow the asylum-seekers to access their territories. The principle is inherently associated with a procedure aimed at identification of potential victims of persecution. The procedure may be effective and fair if only executed on state territory. The prohibition on refoulement may not be totally assured without access to state territory. Implementation of security mechanisms by states where there is no distinction between asylum-seekers and other immigrants prevents asylum-seekers to access the territories of these countries. This endangers the lives or freedom of these asylum-seekers, thus violating the principle of non-refoulement. Therefore, under the international law on human rights, every state has the obligation to fulfill human rights of asylum-seekers, especially those rescued at sea and stowaway asylum-seekers. References List Alborzi, M.R. (2006). Evaluating the Effectiveness of International Refugee Law: The Protection of Iraqi Refugees, Leiden, Martinus Nijhoff Publishers. pp. 143-180. Agnes, G. H. (2009). The Collective Responsibility of States to Protect Refugees, Oxford, Oxford University Press. pp. 204-250. Andreas, Z. (2011). The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Oxford, Oxford University Press. pp. 1109-1150. Anette, F. J. (2008). Human Rights Monitoring: A Field Mission Manual, The Hague, Brill. pp. 451-490. Bernard, R. & Valsamis, M. (2010). Extraterritorial Immigration Control: Legal Challenges, The Hague, Brill. pp. 37-80. Bimal, G. (2003). Elusive Protection, Uncertain Lands: Migrants’ Access to Human Rights, Geneva, International Organization for Migration. pp. 6-48. Erika, D. & Jure, V. (2012). Human Rights and Hierarchy in International Law, London, Oxford University Press. pp. 185-225. Flora, A.N. & Helena, S. R. (2011). The Future of Asylum in the European Union: Problems, Proposals and Human Rights, London, Springer. pp. 21-60. Guy, S.G. & Jane, M. (2007). The Refugee in International Law, Oxford, Oxford University Press. pp. 214-240. Geoffrey, W.G. & Barbara, V.T. (2005). International Law Issues in the South Pacific, London, Ashgate Publishing, Ltd. pp.9-35. Natalie, K. (2011). Maritime Security and the Law of the Sea, Oxford, Oxford University Press. pp. 314-350. Schmitt, M.N., McCormack, T. & Louise, A. (2011). Yearbook of International Humanitarian Law – 2010, New York, Springer. pp. 520-562. Thomas, G. (2011). Access to Asylum: International Refugee Law and the Globalization of Migration Control, Cambridge, Cambridge University Press. pp. 44-87. Read More