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Why Europe Must Help Refugees at Sea

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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If you're as cynical as I am about Europe's impulse to control migration from Arab lands, you might have the same question I did: Why don't European navies interdict the refugees at sea, and send them back to Libya or Turkey or wherever they're coming from? It might seem cruel, but after all, that's what the U.S. did with Haitian boat people in the 1990s and what Australia still does with asylum-seekers.

You might think the answer is that the Europeans are just more softhearted than the Americans or Australians, but it turns out the answer isn't that simple. Behind Europe’s policy of saving refugees at sea and bringing them in for processing and asylum lies a controversial 2012 decision by the European Court of Human Rights.

QuickTake Europe's Refugee Crisis

Motivated by humanitarian instincts, and decided before Syria’s collapse put the flow of Arab refugees into overdrive, the decision is a model of how law can affect policy. It's also a model of the risks when international courts make decisions that have huge consequences for real-world policy.

I was struck to learn from an article by the scholar Jill Goldenziel that, before the 2012 decision, while Muammar Qaddafi's regime was still standing, Italy had an agreement with the dictator that it would stop boats of refugees on the high seas and send them straight back to Libya. On the surface, the arrangement sounds ugly, and indeed, Human Rights Watch led the international human rights community in criticizing it.

Yet the practice of turning back migrants may also have created some disincentive against boarding rickety boats in the hopes of being rescued and ending up in Europe.

Today, desperate people fleeing civil war in Syria or terrible economic conditions elsewhere know that, if they make it into international waters, they can use a mobile phone -- typically provided by the smugglers -- to call the Italian or other naval dispatchers. They will then be picked up and brought to Europe, provided their ships don’t founder first and they don’t drown.

Of course, the risk is extreme, as we've seen after all the deaths on overpacked and unseaworthy ships. No one would undertake this course of action unless no better option existed. But it's also true that the refugees are risking their lives precisely in the hopes of being saved by European navies.

What changed since the time of the Libya deal was the European court’s 2012 decision in Hirsi Jamaa v. Italy. In that case, Somali and Eritrean nationals argued that Italy’s policy violated the most important provision of the Geneva Convention relating to the Status of Refugees. Article 33 of the convention says that no signatory may “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This right is known as “non-refoulement.”

In the Hirsi Jamaa case, Italy said Article 33 didn’t apply to a rescue mission that took place in international waters. The fleeing East Africans were never in Italy, after all, so Italy's obligation not to send them home never kicked in.

The U.S. government made the same argument successfully to the U.S. Supreme Court in the 1993 case of Sale v. Haitian Centers Council. In an 8-1 decision, the court held that the domestic U.S. law implementing the refugee convention didn’t apply to Haitians who were intercepted at sea by the U.S. Navy and then held in Guantanamo Bay, Cuba. (This was more than a decade before the court held that Guantanamo counted as the U.S. for purposes of the constitutional habeas corpus rights of post-Sept. 11 detainees.)

The unsuccessful case for the Haitians was argued by Harold Hongju Koh, who later became a State Department official in both the Bill Clinton and Barack Obama administrations. Koh did, however, induce Justice Harry Blackmun, for whom he’d earlier clerked, to write a heartfelt dissent. In the dissent, Blackmun, who was given to moving rhetoric on behalf of victims, ended by saying that the refugees had raised “a modest plea, vindicated by the Treaty and the statute. We should not close our ears to it.”

The European Court of Human Rights was apparently touched by Blackmun's rhetoric, which it quoted at the conclusion of its opinion. It held that Italy's naval vessels were part of Italy, and that the refugee treaty’s obligation not to send refugees back home applied the moment the Italian navy took control of the refugees’ ships. It concluded by banning Italy's strategy of pushback.

Unlike the U.S. Supreme Court or the Australian High Court, which reached its own similar conclusion in 2000, the European court isn't a national body interpreting the law for a single country. This supranational body effectively made policy for its 47 members by holding that rescue efforts at sea automatically trigger the obligation to process refugees for asylum. Of course, politics matters, too. And, of course, many refugees are now coming over land and sneaking into European countries, where non-refoulement would ordinarily apply.

But it seems almost inconceivable that European politicians would be treating the immigration flow at sea as inevitable if the legal position were different. There would be calls for pushback -- and a policy discussion about whether such an approach would be morally justified. Now, the policy debate is more limited -- and it remains to be seen what the consequences will be for Europe, or those desperate to get there.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net