Interdiction of Asylum Seekers: The Realms of Policy and Law in Refugee Protection

5 Pages Posted: 24 Sep 2014

See all articles by David A. Martin

David A. Martin

University of Virginia School of Law

Date Written: September 1, 2014

Abstract

This brief essay was prepared for a Yale conference marking the 20th anniversary of the Supreme Court’s decision in Sale v. Haitian Centers Council, which upheld the legality of U.S. interdiction of Haitian asylum seekers. Refugee protection for decades has been a product of both policy and law. The Sale decision recognized that mix, leaving it to policy decisions how far to extend protection procedures beyond the national boundaries of a party to the refugee treaties. This stance is broadly consistent with the original intent of the UN treaties and with a candid assessment of ongoing commitments in the refugee law field, both by governments and by the electorate in democratic countries. States adhering to the treaties intended to create a legal floor assuring the most fundamental protections, not a whole edifice. Policy decisions are in general less consistent and less reliable than legal guarantees, but they can engage a wider range of protection actions. For example, President Clinton later pivoted from the policies his administration defended in Sale, ultimately sending U.S. troops, pursuant to a UN Security Council resolution, to oust the Haitian generals and restore the elected government. This action resulted in human rights gains for more Haitians than relocation could have afforded.

The essay describes reasons for skepticism about the realism and long-term impact of recent decisions in Europe and in various international tribunals, such as the Hirsi Jamaa decision, which found interdiction in the Mediterranean inconsistent with the European Convention on Human Rights. Such decisions mistakenly portray the treaties as monothematic, having only protection of refugees as their object and purpose. In fact, the treaties have multiple, complex objectives, intended to sustain a balance between genuine protection and the preservation of core national control over migration. The effort to make all migrant protection a function of law, squeezing out policy decisions, both jeopardizes indispensable public support and is likely to have limited success. The impulse to maintain reasonable control of migration will still find expression, for example through arrangements with transit countries for the latter’s officers to carry out control measures.

Suggested Citation

Martin, David A., Interdiction of Asylum Seekers: The Realms of Policy and Law in Refugee Protection (September 1, 2014). Virginia Public Law and Legal Theory Research Paper No. 2014-57, Available at SSRN: https://ssrn.com/abstract=2500469 or http://dx.doi.org/10.2139/ssrn.2500469

David A. Martin (Contact Author)

University of Virginia School of Law ( email )

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