September 21, 2009

VI. Interdiction and the Principle of Nonrefoulement

When Prime Minister Berlusconi declared that he did not subscribe to the idea that Italy is or should be a multiethnic state, he acknowledged an exception for refugees at risk of persecution. He made it clear, however, that he regarded this as only a remote, almost a theoretical, exception. He said, There’s hardly anyone on these boats who has the right to asylum, as the statistics show. Only in exceptional cases.”[31]

In fact, 75 percent of sea arrivals to Italy applied for asylum in 2008, of whom 50 percent were granted some form of protection.[32]

Berlusconi said that the exceptional asylum cases would be limited to those for whom Italy was bound under international law not to return. The obligation, according to Berlusconi, is to take in only those citizens who are able to apply for political asylum and that we have to take in, as stipulated by international treaties and agreements...those who put their feet down on our soil, in the sense also of entering into our territorial waters.”[33]  

Berlusconi’s reading of Italy’s nonrefoulement obligations as not applying aboard Italian-government vessels on the high seas is incorrect. The 1951 Refugee Convention, to which Italy is a party,[34] bars refoulement, the return of people “in any manner whatsoever” to places where their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.[35] The idea that Italy can send its navy and coast guard out on the high seas to forcibly return potential refugees stands the purpose and the language of the Refugee Convention on its head. Its purpose is to protect refugees from being returned to persecution; its language instructs states not to “return.” The Convention makes no distinction—nor even addresses—from where refugees are being returned; the issue of concern is to where.

Berlusconi argues that nonrefoulement obligations do not apply on the high seas. The UN High Commissioner for Refugees (UNHCR), [36] its Executive Committee,[37] the Inter-American Commission on Human Rights,[38] as well as legal commentators and nongovernmental organizations (NGOs),[39] have found that nonrefoulement obligations are not limited by territorial boundaries and that the Refugee Convention prohibits states from returning refugees to persecution from outside their territories.[40]

UNHCR, along with a wide body of other legal sources, has made it clear that the principle of nonrefoulement applies wherever a state exercises control or jurisdiction, including on the high seas or in another state’s territory. In establishing an international framework regarding the interception of asylum seekers and refugees, the UN refugee agency declared:

The principle of non-refoulement does not imply any geographical limitation. In UNHCR’s understanding, the resulting obligations extend to all government agents acting in an official capacity, within or outside national territory. Given the practice of States to intercept persons at great distance from their own territory, the international refugee protection regime would be rendered ineffective if States’ agents abroad were free to act at variance with obligations under international refugee law and human rights law.[41]

For UNHCR this is not an abstract principle. After interviewing 82 people whom the Italian navy had forcibly returned to Libya on July 1, UNHCR issued a statement expressing its “serious concerns” that Italy’s policy “in the absence of adequate safeguards, can prevent access to asylum and undermines the principle of non-refoulement.”[42]

UNHCR said that the group of 82 included 76 Eritreans, but that the Italian navy made no effort to identify nationalities or the reasons people were fleeing their countries. The refugee agency also said that the group included nine women and at least six children. Despite having been at sea for four days, the Italians did not offer food to the migrants during the 12-hour interdiction and return operation.  The Italian officials also confiscated the migrants’ personal possessions, including money, mobile phones, passports, and refugee certificates.[43] All of the migrants were detained upon arrival.[44]

UNHCR gathered “disturbing accounts” that Italian personnel used force to transfer migrants from their ship to a Libyan vessel and that as a result six people had to be hospitalized.[45] Human Rights Watch learned from another source that Italian naval personnel used electric-shock batons and clubs to force the migrants off the boat, and that some of the passengers had to have lacerations on their heads stitched even before leaving the Italian vessel.[46]

The nonrefoulement obligation applies not only in refugee law, but in human rights law as well, which bars sending people to places where they would be at real risk of being subjected to torture or cruel, inhuman, or degrading treatment (including through a risk of being sent on to a third country). This is set out explicitly in article 3 of the Convention against Torture.[47] Jurisprudence has made clear that states are required under article 3 of the European Convention on Human Rights (ECHR)[48] and article 7.1 of the International Covenant on Civil and Political Rights (ICCPR) to respect the principle of nonrefoulement.[49] The European Court of Human Rights has also made it clear that the ECHR is applicable to the actions of a member state in international waters.[50] In 2004, the Human Rights Committee, the body responsible for monitoring implementation of the ICCPR, issued Comment No. 31, to clarify that responsibility under the Covenant adheres to any situation where the state party exercises effective control:

States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.[51]

 

[31] “Fini: ‘Prima verificare diritto d’asilo’; Berlusconi: ‘Su quei barconi non c’è’,” La Repubblica.it, May 11, 2009, http://www.repubblica.it/2009/05/sezioni/cronaca/immigrati-7/fini-consiglio-europa/fini-consiglio-europa.html  (accessed July 15, 2009). Original Italian: “Su questi barconi, come dicono le statistiche, persone che hanno il diritto d’asilo non ce ne è praticamente nessuna. Solo casi eccezionalissimi.” Translated by Human Rights Watch.

[32] “UNHCR Deeply Concerned over Returns from Italy to Libya,” UNHCR press release, May 7, 2009, http://www.unhcr.org/4a02d4546.html (accessed July 23, 2009). See also UNHCR, “2008 Global Trends: Refugees Asylum-seekers, Returnees, Internally Displaced and Stateless Persons,” Table 10, June 16, 2009, which gives an overall asylum approval rate of 49 percent for Italy in 2008, http://www.unhcr.org/4a375c426.html (accessed July 23, 2009). The Trapani Territorial Commission (which includes Lampedusa) examined 1,017 asylum requests from January through August 2008 with an approval rate of 78.35 percent for some form of international protection. Ministry of Interior, http://www.interno.it/mininterno/export/sites/default/it/assets/files/15/0336_domande_asilo_2008.pdf (accessed August 27, 2009).

[33] “Berlusconi: ‘La nostra idea dell’Italia non è multietnica’” (“Berlusconi: ‘Our idea of Italy is not multiethnic’”), Il Sole 24 Ore.com, May 9, 2009, http://www.ilsole24ore.com/art/SoleOnLine4/Italia/2009/05/berlusconi-no-italia-multietnica.shtml?uuid=f34356f2-3cbd-11de-9448-2a21b45d727f&DocRulesView=Libero (accessed July 15, 2009). Complete original Italian: “La nostra idea è di accogliere solo quei cittadini che sono nelle condizioni per chiedere l’asilo politico e che dobbiamo accogliere qui come dicono gli accordi e i trattati internazionali” e cioè “coloro che mettono piede sul nostro suolo, intendendo come piede sul nostro suolo anche le entrate nelle acque territoriali.” Translated by Human Rights Watch.

[34]Italy ratified the Refugee Convention November 15, 1954 and its Protocol on January 26, 1972.  It is also bound to the nonrefoulement principle under the EU Qualification Directive 2004/83/EC (article 21(1)), which states, “Member States shall respect the principle of non-refoulement in accordance with their international obligations.”

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTML(accessed August 11, 2009). This provision of the Qualification Directive was transposed into Italian national law as Decreto Legislativo number 251 of November 19, 2007, and published in the Gazzetta Ufficiale no. 3 of January 4, 2008. The text of the law is available at http://www.immigrazione.biz/legge.php?id=159 (accessed August 11, 2009).

[35] The bar on refoulement includes the return to places from which the refugee risks being returned to a place of persecution. 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,” January 26, 2007, paragraph 10, http://www.unhcr.org/refworld/docid/45f17a1a4.html (accessed July 16, 2009).

[36] 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,” January 26, 2007, paragraph 24; UNHCR “Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea, March 18, 2002, paragraph 18; UNHCR, “The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93” January 31, 1944, paragraph 33; UNHCR “UN High Commissioner for Refugees responds to U.S. Supreme Court Decision in Sale v Haitian Centers Council,” International Legal Materials, 32, 1993, p. 1215. UNHCR, “Comments on the Communication from the Commission to the Council and the European Parliament on the Common Policy on Illegal Immigration” COM (2001) 672 Final, November 15, 2001, paragraph 12; UNHCR Amicus Curiae Brief in Sale, December 21, 1992.

[37] Executive Committee of the High Commissioner’s Programme, 18th Meeting of the Standing Committee “Interception of Asylum Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach,” EC/50/SC/CRP.17, June 9, 2000, paragraph 23; EXCOM Conclusion No. 82 (XLVIII) (1997); EXCOM Conclusion No. 85 (XLIX) (1988), EXCOM Conclusion No. 53 (XXXIX) (1981); EXCOM Conclusion No. 22 (XXXII) (1981).

[38] The Haitian Center for Human Rights et al. v. United States, Case 10.675, Report No. 51/96, Inter-AmCHR,OEA/Ser.L/V/II.95 Doc 7 rev. at 550, 1997.

[39] E. Lauterpacht & D. Bethlehem, “The Scope and the Content of the Principle of Non-Refoulement: Opinion,” Refugee Protection in International Law, 2003, p. 87; B. Frelick, “’Abundantly Clear’ Refoulement,” Georgetown Immigration Law Journal, Vol. 19, No 2, 2005, 245; Human Rights Watch, By Invitation only: Australian Asylum Policy,  Vol. 14, No. 10(c), December 2002, http://www.hrw.org/legacy/reports/2002/australia/australia1202.pdf (accessed August 11, 2009).

[40]Berlusconi's view reflects that taken by the US Supreme Court in Sale v. Haitian Centers Council, 509 US 155, 156 (USSC 1993).

 

[41] “Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach,” Executive Committee of the High Commissioner’s Programme, 18th Meeting of the Standing Committee (EC/50/SC/CPR.17) June 9, 2000, paragraph 23.

[42] UNHCR Briefing Note, “UNHCR interviews asylum seekers pushed back to Libya,” July 14, 2009, http://www.unhcr.org/4a5c638b6.html (accessed July 17, 2009). 

[43] Email to Human Rights Watch from UNHCR, August 5, 2009. The Italian authorities say that the documents were handed over to Libyan officials on board the Libyan vessel, but the migrants say that the Libyan authorities never returned their possessions to them.

[44] UNHCR Briefing Note, “UNHCR interviews asylum seekers pushed back to Libya,” July 14, 2009, http://www.unhcr.org/4a5c638b6.html (accessed July 17, 2009). 

[45] Ibid.

[46] Human Rights Watch phone call to Libya, June 15, 2009. Source cannot be revealed.

[47] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, http://www2.ohchr.org/english/law/cat.htm (accessed August 28, 2009).

[48]See Soering v United Kingdom  11 EHRR 439, judgment July 7, 1989,

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695496&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (accessed August 11, 2009); TI v UK (Application 43844/98), judgment March 7, 2000, found atT.I. v United Kingdom [2000] INLR 211 http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=669265&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (accessed August 11, 2009).

[49] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.171, entered into force March 23, 1976, ratified by Italy September 15, 1978, http://www2.ohchr.org/english/law/ccpr.htm (accessed August 27, 2009). The ICCPR prohibition on cruel, inhuman, or degrading treatment or punishment applies to all persons within a party’s territory or jurisdiction, according to article 2.1.

[50]Women on Waves and Others v Portugal (Application 31276/05), Judgment of February 3, 2009.

[51] Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, adopted 29 March 2004, http://www2.ohchr.org/english/bodies/hrc/comments.htm (accessed August 27, 2009).