Interdiction references: Secondary sources
Partial and incomplete bibliographical listing, prepared
as background for the workshop
Interdiction and Refugee Protection: Bridging the
Gap, Ottawa, May 2003
Amnesty International. (1997). Obstructing and deterring
asylum-seekers. In Refugees: Human rights have no borders. Retrieved
April 12, 2003, from http://www.amnesty.org/ailib/intcam/refugee/report/chapter4.htm.
During the past two decades many states have taken
measures to deter refugees and asylum-seekers from reaching their borders.
The most common measures are visa requirements, carrier sanctions, interdiction
on the high seas, and pre-flight screening for passengers. Some of these
practices are problematic as they do not always comply with international
obligations. For example, several members of the European Union have adopted
practices that penalise undocumented or improperly documented migrants. Such
practices are contrary to a European Parliament resolution that stated all
asylum-seekers should have automatic access to admission procedures and that
any type of visa policies and carrier sanctions should not be impediment
to such access.
Further, many European countries do not meet their international
obligations to asylum-seekers. Austria, the Baltic States, Bulgaria, Poland,
and Russia all refuse to exempt "illegal" entry of asylum-seekers in their
laws. Albania, France, Germany, Romania, Slovak Republic, and Turkey do
not generally penalise asylum-seekers for "illegal" entry into their territory,
though detention is not rare, and legal intervention may be required for
release. Finally, Azerbaijan, Belgium, Greece, Hungary, Italy, Portugal,
Spain, and Sweden have laws exempting asylum-seekers who enter the country
"illegally", though inconsistencies arise in its application. Any measure
that obstructs the entry of an asylum-seeker is contrary to the intention
of Articles 31 and 33 of the 1951 Convention Relating to the Status of
Rejection at the border also prevents asylum-seekers from
reaching and accessing the territory where asylum claims can be heard and
determined. Amnesty International suggests that border officials should
never be responsible for the determination of an asylum application. Rather,
all asylum cases should be referred to the responsible authority, or at the
very least, none should be rejected without reference to this authority (EXCOM).
These border officials must recognise their responsibility to respect the
principle of non-refoulement. When refugees are rejected at the border,
there are several possible outcomes, none of which respect the refugees' rights
to seek and enjoy asylum from persecution. Possible outcomes include: return
to persecutors, sent to another country where they would be at risk of human
rights violations or refoulement, or lead to enter the country of
asylum illegally and possibly face punishment for doing so.
Anti-Slavery. (2003). Trafficking in Russia.
Retrieved April 13, 2003, from http://www.antislavery.org/homepage/antislavery/traffickingrussia.htm.
Women from all over Russia are forced into work as
prostitutes or domestic workers. Men, on the other hand, are trafficked into
agricultural or construction work. The country of destinations include Germany,
Greece, Portugal, the United States, and Israel. In the Russian Far-East,
the destination countries include China, Japan, and Thailand. Further, an
increasing number of women from Belarus, Moldova, and the Ukraine are trafficked
to Russia to work as prostitutes in Moscow and other cities.
Organised criminal organisations operate through false
employment agencies, promising great jobs and salaries, and in some cases,
even organising the transportation and document requirements. Frequently,
passports and identity documents are taken away on arrival and from then
on, many women are controlled through mental abuse and physical violence.
The men, on the other hand, are forced to work long hours for little or no
pay on construction or agricultural sites. Further, many of the victims are
expected to repay the "agency" for the transportation costs, another form
For the women and men who manage to escape their traffickers,
there is very little support available to them. In Russia, there is currently
no legislation against trafficking, thus traffickers go unpunished. (Article
ends with a testimony/case study.)
Anti-Slavery. (2003). Trafficking in the United
Kingdom. Retrieved April 13, 2003, from http://www.antislavery.org/homepage/antislavery/traffickinguk.htm.
In 1998, the Home Office recorded 1, 420 women were
trafficked into the UK for sexual exploitation. This figure does not include
those trafficked for labour exploitation or children. The main source countries
include Albania, China, Lithuania, Nigeria, Romania, Russia, Sierra Leone,
and the Ukraine.
Article 6 of the UN Protocol on Trafficking stipulates
that victims of trafficking need access to support services including appropriate
accommodation; information in language they understand; medical and psychological
assistance; legal advice, and training and employment opportunities. The
UK government launched on March 10, 2003, a pilot support project for women
who have been trafficked to the UK for the purpose of sexual exploitation.
These women, once they have had access to support services to facilitate
and encourage an informed decision, may decide to co-operate with the police,
in which case, they would be granted temporary admission to the UK for as
long as necessary. If they choose not to co-operate, they may claim asylum
or be assisted in the return to their country of origin.
The UK has introduced a stop-gap measure to address trafficking
until The Sexual Offences Bill passes. This measure, under the Nationality,
Immigration and Asylum Act 2002 makes trafficking for prostitution an
offence with penalty of up to 14 years in prison. (Article finishes with a
Canadian Council for Refugees. (May 1998). Interdicting
Refugees. From http://www.ccrweb.ca/Interd.pdf
This document provides an introduction to interdiction
and its impact on refugees. Included are chapters on the global context,
Canadian measures of interdiction, alternatives to interdiction and an analysis
of the mid-1990s proposed Canada/U.S. safe third country agreement and whether
it complies with the Canadian Charter of Rights and Freedoms.
Conference of European Churches. (December 1999). International
Consultation on Trafficking in Women in Europe: Statement. Retrieved April
13, 2003, from http://www.cec-kek.org/English/trafficking-print.htm
Over the past ten years, there has been a massive
increase in the number of women trafficked from poorer countries to richer
ones. The purposes include labour, marriage or prostitution, all forced.
Many European countries are involved, either as source countries, destination
countries, or transit countries where documents and visas are obtained. Promises
of well-paid jobs and marriages usually result in abuse, violence and sexual
exploitation. Passports are also taken from these women, which limits their
ability to leave the trafficker and the country where they are "working".
Recommendations directed towards the CEC, the Council
of European Bishops' Conference, and the Churches Committee for Migrants
in Europe are included at the end of this statement.
European Council on Refugees and Exiles, U.S. Committee
for Refugees, and the German Marshall Fund of the United States. (April 2003).
Responding to the asylum and access challenge: An agenda for comprehensive
engagement in protracted refugee situations. Retrieved April 17, 2003,
This report examines the asylum and access challenge
in Europe and North America, that is the contradiction between refugees' right
to seek asylum and states' right to control their borders.
Field studies for this report focussed on two major refugee
groups, Iraqis and Somalis and their host countries (Jordan, Syria, Turkey,
Iran, Lebanon, and Kenya). This report is composed of four main components.
Firstly, the reality of refugee protection in East Africa and the Middle
East are analysed. Secondly, the authors evaluate the prospects, challenges,
and constraints of resettlment programmes. Thirdly, an outline of the principle
of responsibility sharing and comprehensive approaches to refugee crises
are included. Finally, new solutions to this issue are suggested. Case studies
are also included in Appendix 2. These studies evaluate the profile of the
refugee groups in question and further details the social, political, and
economic conditions as well as the refugee status determination system of
the host countries.
Flynn, Michael. (July 3, 2003). US anti-migration
efforts move south. Retrieved March 12, 2003, from http://www.americaspolicy.org/pdf/articles/0207migra.pdf
In 1994, the North American Free Trade Agreement (NAFTA)
came into force. This agreement created a dilemma in Washington. How can
the borders remain open for the free transit of goods, yet prevent unwanted
migrant and drug traffic? One way of achieving both of these objectives is
to build walls and control the ports of entry. In 1993, the Immigration and
Naturalisation Services (INS) began a series of blockade initiatives that
involved building walls along selected sections of the Mexico-US border,
multiplying the number of border guards, and deploying a fleet of vehicles
(air-, land-, and water-based) armed with high technology detection equipment.
In 1996, US Congress passed two immigration and asylum laws- the Anti-Terrorism
Effective Death Penalty Act and the Illegal Migration and Immigrant
Responsibility Act. These two pieces of legislation enhanced border security,
built new barriers to achieving legal status, expanded the ground for deportation
and gave the INS the authority to use additional law enforcement techniques.
One of the impacts of these acts was the increased use of smugglers by migrants.
At the same time, Canada and Mexico became initial ports of entry for extraregional
migrants who saw both of these countries as convenient and relatively accessible
bridges to the United States. The INS tightened its security, which lead to
higher death counts. Walls, guards, and helicopters forced migrants to employ
more dangerous paths to reach the United States. By the year 2000, the INS
confirmed that more than 1 death a day occurs at its borders.
In 1997, the INS implemented an anti-smuggling operation
(Global Reach). This expanded the agency's presence worldwide. The
Justice Department qualified the operation as a strategy of "combatting
illegal migration through emphasis on overseas deterrence". Overseas officers
train officials from other countries and airline personnel in fraudulent
document detection, much like the Immigration Liaison Officers from Canada.
The 2000 campaign, called ForeRunner, was qualified
by the INS as the largest anti-smuggling operation ever conducted in the
Western hemisphere. The results: agents from six Latin American countries
stopped 3, 500 migrants and only 38 smugglers. American Catholic Bishops
visited the detention centres where these migrants were held, and stated
that the operation was preventing migrants from claiming asylum. The following
year, the Crossroads International operation, 8,000 migrants and 75
smugglers were stopped in twelve Latin American countries.
The US Coast Guard aids the INS in the interdiction of
migrants. During the early 1990s, this maritime body' national security
mandate was expanded by virtue of Presidential Decrees. In 1992, then-President
Bush Sr. issued an executive order authorising the coast guard to interdict
all vessels transporting undocumented migrants and to return these to their
countries of origin. The following year, then-President Clinton directed
the maritime agency to co-operate with other law enforcement agencies in
combatting human smuggling.
During recent years, American interdiction efforts have
been focussed in the Pacific Rim of the Americas, where there have massive
flows of Chinese and Ecuadorian smuggling vessels. The coast guard's principal
mission is to patrol for illegal narcotics traffickers, though it regularly
interdicts migrant smuggling boats off the coast of Latin America. Although,
most of these boats are not suitable for transporting migrants and lack
emergency equipment, they are carrying persons who might be in need of international
Since the mid-1990s, the United States have pressured
their southern neighbours in securing their own borders, developing regional
migration strategies, tightening visa requirements, and participating in
multilateral operations such as Crossroads International. Further,
the Regional Conference on Migration (Canada, Mexico, the United States,
and Central American countries) institutionalised regional co-operation over
migration issues. Melanie Nezer, an immigration attorney with Immigration
and Refugee Services of Canada, commented in a 1999 report "Instead of leading
to an increased protections of the human rights of migrants, co-operation
among North and Central America governments has led to a 'southward migration'
of the Mexico-US border".
Gibney, M.J. & Hansen, R. (September 2002). Asylum
policy in the West: Past trends, future possibilities. Retrieved April
13, 2003, from http://www.wider.unu.edu/conference/conference-2002-3/conference%20papers/Gibney.pdf.
In the last two decades, the distinct concepts and
processes of 'immigration' and 'asylum seeking' have merged. Gibney and Hanses
analyse the responses of politicians in Northern countries to this development.
However, disproportionate attention is accorded to the member-states of the
European Union where the fusion has been the most complete, and where states
have gone furthest in co-ordinating their policies in order to restrict access
Since the 1980s, there has been a expansion of practices
meant to deter, reduce, and rationalise asylum claims. The simplest justification
for the use of such measures is numbers. Asylum applications increased in
the 1980s, and skyrocketed in the 1990s. Four developments were crucial root
causes of increased asylum applications.
In response to increased numbers of asylum applicants,
Western states have introduced and maintained policies and practices to
reduce, to deter, and manage the settlement of asylum-seekers and refugees.
Visa requirements are meant to prevent the movement of 'economic migrants'
but also asylum-seekers and refugees. Australia requires visas for all foreign
nationals visiting its territory. Canada, the United States, and members
of the EU impose visa requirements on nationals from countries deemed to
produce large numbers of asylum-seekers or over-stayers. Members of the EU
have harmonised their visa requirements, which are applied on 120 countries.
While such requirements are not exclusively used to deter asylum claimants,
they are intimately linked. The British government imposed visa requirements
for Tamils in 1986, and during the same year the French government did likewise
for Algeria. Most recently, Canada imposed visa requirements for nationals
of Hungary in 2002.
- The escalation of refugee-producing events in the
South, mostly related to decolonisation. These events destroyed the myth
that refugees were an intra-European phenomenon, as in the 1950s.
- In 1967, a protocol was added to the 1951 Convention,
which expanded the application of the Convention to refugees who emerged as
a result of events occurring after 1951 and from outside of Europe.
- The spread of mass telecommunications better advertised
the differences in income, employment, and lifestyle across countries, while
air travel became more accessible and affordable.
- Finally, by the early 1970s, France, Germany, Switzerland,
Scandinavia and the United Kingdom had terminated labour migration policies
(from Southern European states and former colonies/third world). During
the same time period, countries of 'immigration', such as Australia and Canada,
cut back on immigration, partly due to rising unemployment.
Carrier sanctions are another preventative mechanism that
does not discriminate between those in need of international protection
and those not in need. Australia, Austria, Belgium, Canada, Denmark, France,
Germany, Italy and the US all use such sanctions, though the fines vary.
In the UK, recent legislation expanded the application of these sanctions
to the Eurostar train service that links Britain and the continent and on
lorry drivers that travel to the UK on ferries. A 2002 Court of Appeal ruled
against the use of these sanctions. Nevertheless, the UK government remains
committed to such practices.
Pre-inspection regimes in foreign controls consist of
yet another preventative mechanism. The UK, Canada, the US, Sweden, and France
had immigration liaison officers in airports abroad to detect potential illegal
migrants. On the other hand, Australia, the Netherlands, and Norway send such
officials to airport abroad to train local immigration authorities and airport
and airline personnel. The United States even posts its immigration abroad,
notably in Dublin, Montreal, and Toronto. This type of practice extends national
borders. However, some states have chosen to contract their boundaries. Switzerland,
France, Germany, and Spain have all declared parts of their airports as international
zones, that is, zones where the state is exempted from providing foreign
nationals with some or all of the protections available to claimants in state
territory. The most extreme example of such practices is Australian. In 2001,
Australia excised Christmas Island, Ashmore Reef, the Cocos Island, and other
territories from its migration zone.
Finally, interdiction is another measure employed by Western
states to prevent refugee flows from accessing state territory. In some
cases there is consideration of the mixed composition of such flows, such
as a preliminary screening procedure to determine whether any of the migrants
are in need of international protection. Nonetheless, all interdiction measures
increase the likelihood of indirect or direct refoulement.
Finally, there is an obvious overlap between the effects
of preventative and deterrence measures. Many preventative policies also
deter others from arriving. Deterrent policies used by Western states have
focussed on reducing the privileges and entitlements available to asylum
seekers claiming asylum. These policies include: limitations on employment,
limitations on welfare, and limitations on residence and accommodations,
otherwise known as, limitations on social citizenship.
Gibney, M.J. & Hansen, R. (February 2003). UNHCR
Working Paper No. 77 - Deportation and the liberal state: The forcible return
of asylum seekers and unlawful migrants in Canada, Germany, and the United
Kingdom. Retrieved March 12, 2003, from http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RESEARCH&id=3e59de764&page=publ.
"Immigration control implies two capacities: to block
the entry of individuals to a state, and to secure the return of those who
have entered." This article considers the relationship between deportation
policy and the evolution of broader immigration control measures, especially
in asylum policy, and the growing popularity of deterrence measures employed
by Western states. This paper suggests deportation is used less frequently
by Western states because of its financial cost, the sensitivity of such
removals in public opinion, and the increased use of deterrence measures.
(See above article.)
Hathaway, J. (1996). Can international refugee law
be made relevant again? Retrieved April 17, 2003, from http://www.refugees.org/world/articles/intl_law_wrs96.htm.
Interdiction and non-entrée measures in fact
confine most of the world's refugees in their regions of origin in the South.
Already, these regions of origin host more refugees than the western industrialised
countries do combined. Africa shelters more than double the number of refugees
than Europe, North America, and Oceania combined. The western countries
do show some solidarity with these countries, such as UNHCR assistance and
ad hoc regimes , though these efforts are conducted outside of international
refugee law. Moreover, most of the assistance from the developed world occurs
after the fact and on a situation-specific basis. Southern countries are becoming
less receptive to hosting large numbers of refugees and asylum-seekers. Normally,
these southern countries lack the resources and sophisticated border control
systems used by northern countries to enforce non-entrée principles.
Human Rights Watch. (2003). Human Rights Watch World
Report 2003: Refugees, Migration, and Trafficking. Retrieved April 20,
2003, from http://www.hrw.org/wr2k3/issues4.html.
Two components of this report are narrowly related
to the practice and effects of interdiction.
The first component, "Global backlash against refugees
and migrants", briefly summarises certain governmental responses to the
events of September 11, 2001, including the adoption of punitive and restrictive
measures against asylum-seekers and migrants. The second component, "Secondary
movement", briefly outlines the implications of such movement. In 2002,
the major policy focus of western industrialised countries was to stop asylum-seekers
from making secondary movements away from the first country of asylum. Australia
introduced new immigration legislation, perhaps the most draconian measures
in relation to asylum-seekers in the western world. Further, many member-states
of the European Union and other industrialised nations in the region called
for a greater emphasis on the reception of refugees in countries neighbouring
those from which they flee. This type of policy suggestion echoes Australian
Human Rights Watch. (December 12, 2002). Australia:
Deterring asylum-seekers by violating rights. Study faults Australia for accepting
refugees "By Invitation Only". Retrieved on March 20, 2003, from http://www.hrw.org/press/2002/12/australia1210.htm.
This HRW report examines Australia's new refugee policy,
the causes of "uninvited" refugee flows via Australia, Australian interdiction
practices, and the latter's impacts. HRW highlights the creation of unequal
refugee categories, those sent by the UNHCR, and those travelling on their
own. Moreover, the category of refugees arriving independently of the UNHCR
are 'processed' in newly excised territorial zones of Australia, where refugees
are not permitted to have their asylum claims heard. HRW analyses the creation
of such zones from a political standpoint and a human rights perspective.
Human Rights Watch. (September 2002). "Not For Export":
Why the international community should reject Australia's refugee policies.
Retrieved March 20, 2003, from http://www.hrw.org/reports/2002/australia.
This report was written in response to Australia'
new legislation extending the legal basis of its refugee policies, already
some of the most restrictive policies among Western nations. The Australian
policies are aimed at deterring asylum-seekers who have not applied for resettlement
via the UNHCR or Australian diplomatic posts, mostly Iraqis and Afghans, from
arriving on their shores. This report examines in detail four main components
of the new legislation (September 2001) including the excision of territories
from Australia's migration zone, extended powers of refugee interception and
detention, the authority to expel refugees to Pacific states (the "Pacific
Solution"), and a new temporary protection visa regime. Further, HRW provides
recommendations on how to better reflect human rights and fairness in Australia's
Human Rights Watch, International Catholic Migration
Committee, World Council of Churches. (June 29, 2001). NGO background paper
of the refugee and migration interface. Retrieved February 24, 2003,
This report was prepared in response to the UNHCR
Global Consultations on International Protection report entitled: Reconciling
migration control and refugee protection in the European Union. It serves
as a reminder to the UNHCR and the IOM of the need to protect fundamental
human rights; the importance of the institution of asylum; the equal importance
of a positive migration system, and the value of focussing on protection
strategies rather than migration control mechanisms. This report
includes general background information as to the causes of refugee flows;
the possible reasons for lack of proper documentation; the links between
increased restrictive entry policies and the increased number of trafficked
or smuggled persons. Further, the links between the detention of asylum-seekers,
the criminalisation of asylum-seekers, and the rise in racism and xenophobia
are examined, as well as interception measures. Recommendations on these
issues are included.
Lawyers Committee for Human Rights. (November 6, 2002).
Haitian asylum-seekers targetedby detention and interdiction policies:
United States Government must change discriminatory policies. Retrieved
February 24, 2003, from http://www.lchr.org/media/2002_alerts/1106.htm.
This article discusses the current interdiction practices
employed by the US Coast Guard in regards to Haitian refugees and asylum-seekers.
These practices are inconsistent with those used for asylum-seekers from
other countries, such as China and Cuba. Further, the treatment of Haitian
asylum-seekers at the hands of the INS is outlined. Recommendations regarding
interdiction practices and use of detention are included.
Mavris, L. (December 2002). UNHCR Working Paper
No. 72-Human smugglers and social networks: Transit migration through the
states of former Yugoslavia. Retrieved February 24, 2003, from http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RESEARCH&id=3e19aa494&page=publ.
This paper analyses the use of the Former Republic of
Yugoslavia (FRY) as a transit country for migrants attempting to reach Western
Europe. Due to visa and proper documentation requirements, as well as carrier
sanctions, many migrants resort to smuggling as a means of entry into Western
European states. In response, the European Union has increased border controls
of its own members and of the states of the FRY. Unfortunately, as this paper
points out, this focus on policing and controlling borders has only increased
the stakes for successful smuggling. The author proposes an analysis of the
situations within the borders of refugee-producing countries, rather than
a sole focus on international borders as a means of controlling migration
and the movement of asylum-seekers.
J. Morrison and B. Crosland, The trafficking and
smuggling of refugees: the end game in European asylum policy? UNHCR Working
Paper No. 39. April 2001. From http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RESEARCH&id=3af66c9b4&page=research
Morrison and Crosland analyse current European policies in regards
to the increased importance and sophistication of people smuggling and trafficking,
as well as the networks and routes associated with these types of activities.
The authors evaluate truisms associated with the migration and refugee debate,
interdiction measures, current migration policies, and the nature and human
rights implications of smuggling and trafficking. Finally, the Vienna
Process’ anti-trafficking/smuggling protocols are analysed, a comprehensive
approach to migration policy is outlined, and recommendations in regards
to actions of the State, the UNHCR, and other refugee agencies are included.
The European Union’s periphery is host to known smuggling and trafficking
routes. These regions, such as Eastern Europe and the CIS, are no longer
simply transit countries through which these routes pass, but also final
destinations of such routes. The Secretariat of the Budapest Groups
defines the countries with the most through-travel as Albania and the ‘Balkan
route’, Poland, Belarus, Hungary, The Czech and Slovak Republics, Turkey,
Bulgaria, and Romania. Western Europe is also a transit location for
those wishing to reach North America.
The authors define the terms ‘trafficking’ and ‘smuggling’ as appropriated
from the Ad Hoc Committee on the Elaboration of a Convention against Transnational
Crime in 1999.
The authors contextualise the trafficking/smuggling debate in Europe by stating
truisms that frame this debate. In sum, it is believed that most refugees
or asylum-seekers are not narrowly Convention refugees, that those using
illegal modes of transportation are exempt from protection, and that international
law obligations are best avoided if the asylum-seekers cannot reach
European borders. Finally, “irregular” migration, as a facet of international
criminal activities, is perceived by states as a threat to democracy and
civil society. Though the authors do criticize these blanket beliefs
or statements, they do acknowledge that most asylum-seekers arrive to Europe
via smuggling or trafficking networks and routes. The paradox of current
anti-trafficking/smuggling initiatives is the that those targeted by such
initiatives are also those with the highest refugee recognition rates in
In practice, the institution of asylum in Europe is severely limited by interdiction
measures, or pre-border enforcement measures in place sine the 1980s.
These measures include transport carrier liability sanctions, visa requirements,
safe third country agreements, readmission treaties, and Airport Liaison
Officers. Furhter, on ‘paper’, this right is not as clear cut either.
The 1951 Convention and the European Convention on Human Rights do ‘oblige’
states to receive asylum claims, rather, asylum-seekers have a right to non-refoulement
by state agents. The right to claim asylum is not yet recognised as
a human right in itself.
Despite the existence of legal channels, Europe is becoming increasingly
difficult to aceess for a growing number of refugees. One such legal
possibility is the possession of a ‘student’, ‘tourist’, or ‘business’ visa.
Currently, visa requirements are imposed on certain countries; many are refugee-producing
countries. A person deemed to be an asylum-seeker will usually not
receive an ‘asylum-seeker’ type visa. The European Union has been standardising
its visa policies, including refugee-producing countries. The EU has also
standardised its Airport Transit Visas. Currently, visa harmonisation
with third countries is the direction this measure of interdiction is pursuing.
Regular migration for asylum-seekers is also available through UNHCR resettlement.
Recently, the number of refugees resettled annually in Europe has been under
27,000. Finally, temporary protection programmes also resettle refugees
through legal channels in Europe. The definition of ‘temporary’ varies
by European country.
As mentioned above, interdiction measures limit the success of legal migration
channels for refugees to claim asylum in Europe. Regional containment
is a consequence of interdiction measures. Further, the emphasis placed
on pre-border assistance and training in transit countries by European countries
deters attention from the reception conditions and assistance needs of the
refugees in these transit countries. Readmission agreements, essential
factors to regional containment programmes, have not been traditionally framed
to protect refugees and asylum-seekers from refoulement and thus, can indirectly
to lead to it.
Further, the limited number of refugees that do accede to the European asylum
institution receive varying degrees of social citizenship rights and benefits.
Some are detained, others victims of racism or xenophobia, and still others
are prohibited form working or receiving welfare benefits. These measures
or factors act to further deter other refugees potentially seeking asylum
Anti-trafficking legislation and practices can further prevent or discourage
asylum-seekers from reaching Europe if the clients of trafficking or smuggling
services are not distinguished by need of protection. This lack of
distinction can lead to the criminalization of irregular migrants.
The right of movement, to leave one’s country of origin, and to seek asylum
in another country must not be comprised for illusionary control measures.
Anti-trafficking norms have been established in regards to the protection
needs of several groups, including women and children. Migrants have
largely gone unnoticed in the establishment of such norms. (Now, there
are UN protocols that address smuggling and trafficking.)
The fight against trafficking and smuggling is difficult as its clients have
different protection needs and rights. The authors evaluate the effectiveness
and pertinence of the Vienna Convention, which established two protocols
that address smuggling and trafficking activities individually, through every
step of the smuggling/trafficking process and the human rights abuses, which
accompany these activities.
The first step is the entrance into the smuggling/trafficking process.
Whether a person consents to being transported against their will or not
defines whether the act is categorised as smuggling or trafficking; the former
requiring consent. The Vienna process assumes the smuggled asylum-seeker
is less deserving of, or simply requires less protection than a trafficked
asylum-seeker. While violations of social and economic rights often push
migrants into smuggling, human rights abuses are more commonly associated
with the many push factors sustaining the process of trafficking. Beyond
causes, human rights abuses occur during both processes, regardless of consent.
Consent has proven problematic to prove and define.
The human rights abuses that feed the trafficking abuses must be re-contextualised
and re-conceptualised. Sexual and racial discrimination, as well as
economic and social marginalisation have been explored in relation to the
trafficking of women. Structural human rights abuses are causes of
trafficking of children. Such abuses must be considered in any anti-trafficking
and/or smuggling legislation, agreements, or measures. Currently, violations
of economic and social rights do not guarantee any right of irregular migration
and illegal entry into other countries. Unless these considerations
are integrated in any comprehensive approach, root causes will not be addressed,
and success will be limited.
Thirdly, as mentioned above, how is the issue of consent defined and proved.
This issue is quite simple in regards to children, though for women, labourers,
and migrants, the issue becomes complicated. Further, whether acute
deprivation of economic rights constitutes coercion must be addressed and
included. For any anti-trafficking/smuggling initiative to be successful,
the focus must remain on the root causes and the human rights abuses occurring
during the processes, rather than the issue of consent.
The identification of root causes must be broadened to understand why an
individual would consent to trafficking/smuggling and to understand its scope.
The scale and ‘labour hierarchy’ of sexual exploitation is comparable with
those of the illegal sweatshop labour market or illegal workers. Labour
rights, unequal development, and human rights abuses are important considerations.
Finally, a comprehensive approach to migration and asylum is required for
Europe to effectively address migration, border security, and trafficking
concerns. A comprehensive approach must incorporate punitive, remedial,
preventative, legal and instrumental measures to address illegal migration.
Further, adherence to existing legal instruments that address the human rights’
concerns of children, women, and workers would greatly enhance the success
of a comprehensive approach.
Such an approach to migration policy includes the following principles.
The first principle is border enforcement and control. Secondly, such
an approach requires regional solutions outside of Europe, including long-term
social, economic, and political development plans in the source regions,
dignified reception conditions in the source and transit countries, and the
refugee’s right to asylum, movement, and non-refoulement. The final
principle is the management of migrants and refugees with the EU. This
management includes legal rights of migrants and refugees, family reunion,
and the return of unsuccessful asylum applicants. Further, European
states must balance burden-sharing, address xenophobia and racism issues
within the union, and inform their citizens of the causes of increased asylum-seeker
migration, as well the nature and implications of ‘irregular’ migration.
Finally, migrants and refugees should have access to rights of social citizenship
and dignified integration in host societies. Other considerations,
sovereignty, security, the maintenance of the status quo, and asylum and
human rights respect as national identity signifiers, influence the perspective
of these principles. Recommendations for harmonising human rights’
instruments and migration policy follow.
Newland, K. (January 1,
2003). Troubled waters: Rescue of asylum seekers and refugees at sea.Retrieved
April 13, 2003, from http://www.migrationinformation.org/Feature/print.cfm?ID=80.
The UN Convention on the
Law of the Sea (1982) and the International Convention on Maritime Search
and Rescue (SAR) (1979) both include the obligation to extend aid to persons
in distress at sea, indiscriminate of nationality, status, circumstances
or persons. Further, the Annex of the SAR Convention states that a "competent
international organ" must be notified when refugees and displaced persons
are among the persons in distress at sea.
Seafarers have an obligation
to rescue people in peril, though what happens after this rescue is unclear.
The SAR considers a rescue is complete when the rescued person is delivered
to a place of safety, such as a safe harbour. A place of safety includes,
but is not limited to, the nearest suitable port, the next regular port
of call, the ship's home port, or a port in the rescued person's country.
However, when refugees are among those rescued, the options become narrower.
This group of migrants must still be protected against refoulement and still
have the right to claim asylum, thus potentially triggering a series of determination
mechanisms when embarked on a safe country's shores or borders.
The intersection of maritime
law and refugee law leaves many ship owners, masters, and crews in a dilemma.
They are obliged to rescue those in distress, though no state is obliged
to receive them. Actually, states are becoming increasingly determined to
deter ships potentially transporting asylum-seekers from reaching their shores.
The United States intercepts boats in the Pacific and the Carribean. Italy
and France do so in the Mediterranean, while Australia intercepts in the Indian
Ocean. American authorities justify the return of Haitian boat people on
grounds that such actions will discourage others from risking their lives.
Pugh, M. (July 2000).
Europe's boat people: Maritime co-operation in the Mediterranean.
Retrieved April 4, 2003, from http://www.iss-eu.org/chaillot/chai41e.pdf
This Chaillot Paper
looks at the question of 'boat people' in Europe, especially in the Mediterranean
off the coasts of Spain, France, and Italy. The author argues that maritime
co-operation can be enhanced in Mediterranean waters in order to cope with
seaborne migrants and refugees. Pugh suggests a functional welfare approach
is the most promising way of responding to this situation. He argues this
approach is feasible as the countries affected and involved in this situation
have a long tradition of giving help at sea and assistance to civil authorities,
and are linked by bilateral and multinational co-operative agreements.
However, increasing flows
of seaborne migrants and refugees expected in the context of the development
of a common EU security policy call for strengthened co-operation among
navies of member-states and with countries to the south of the Mediterranean
Further, Pugh demonstrates
that the boat people issue is a humanitarian crisis, and does not pose a
direct military threat to the security of European countries.
Refugee Council. (August
2002). The Dublin Convention on asylum applications: What it means and
how it's supposed to work. Retrieved April 13, 2003, from http://www.refugeecouncil.org.uk/downloads/briefings/dublin_aug2002.pdf
This a brief, comprehensive
outline of the Dublin Convention. Included is an explanation of the Convention
(in theory and in practice), and its implications (according to this organisation,
Dublin's problems). This convention has "safe third country" implications.
Refugee Council. (July
2002). Government announcement and proposals since its White Paper on asylum:
a summary. Retrieved April 13, 2003, from http://www.refugeecouncil.org.uk/downloads/briefings/post_wp_summ_jul02.pdf.
In February 2002, the UK
government published its White Paper Secure Borders, Safe Haven: Integration
with Diversity. Since, there have been a series of meetings or announcements
from the British government regarding changes to its asylum system or changes
at the European level. The overview of the European Union Seville Summit
of June 2002 is of particular relevance to the matter of interdiction.
Refugee Council. (December
2002). The Nationality, Immigration and Asylum Act 2002: Changes to the
asylum system in the UK. Retrieved April 25, 2003, from http://www.refugeecouncil.org.uk/downloads/briefings/nia_act_02/ed_1_dec02.pdf
Overview of the new legislation.
Section 8 and 9, border controls and illegal traffic respectively, are of
particular relevance to the matter of interdiction and non-entrée.
Refugee Council. (June
2002). Response to Safe borders, safe haven: Integration with diversity
in modern Britain. Retrieved April 24, 2003, from http://www.refugeecouncil.org.uk/downloads/white_paper/wp_response.pdf
Tailby, R. (June 2001).
People smuggling: Recent trends and changing responses. Retrieved
April 17, 2003, from http://www.aic.gov.au/conferences/outlook4/tailby.pdf.
People smuggling is fast
becoming one of the most profitable form of "transnational crime". Migrant
flows seeking the assistance of people smugglers to reach Australian territory
have shifted from predominantly air arrivals to boat arrivals during the
1998-2000 period. The author identifies three push factors contributing to
these displacements and movements: the on-going civil war in the Middle East,
the Asian economic crisis, and China's ever-expanding population. Tailby
also identifies governmental responses to this increased number of smuggled
asylum-seekers including increased federal funding to tackle the problem
of people smuggling, increased co-operation between the Australian government
and governments of transit and source countries, strengthening of existing
legislation to increase penalties against people smugglers, the creation
of new offences for trafficking in people, especially for slavery and sexual
The elimination of people
smuggling must focus on its supply and demand. In order to reduce supply,
efforts must be focussed on the smugglers. Governmental efforts will focus
on international co-operation, the creation of harsher penalties for smugglers
(this is thought to have a deterrent effect), and through efforts to create
good employment and wage-earning opportunities in the Asia-Pacific region
(this is thought to decrease the attractiveness of smuggling). On the other
hand, demand reduction must focus on migrants and those in destination countries
seeking cheap labour. Push factors include poverty, lack of opportunity,
persecution, civil unrest, and ecological degradation in source countries.
Pull factors include greater perceived economic opportunities, lifestyle,
and political stability in destination countries. Ways of addressing these
push and pull factors include the provision of aid to source countries to
address some of the root causes of illegal migration. In 2001, Australia
gave $12 million in humanitarian assistance to Afghanistan and Afghan refugees
living in Iran and Pakistan. Domestic responses include restrictions on social
citizenship to migrants who have arrived to Australia via people smugglers.
Though this article points
out governmental responses and policies in regards to people smuggling,
barely any mention is made concerning the mixed composition of these migration
flows. None of these responses attempt to distinguish "irregular migrants"
from asylum-seekers and refugees.
Tazreiter, C. (September
2002). Security against the few: Asylum-seekers as pariahs in the Australian
state (draft). Retrieved April 20, 2003, from http://www.wider.unu.edu/conference/conference-2002-3/conference%20papers/tazreiter.pdf.
Tazreiter analyses the
context within which Western governments, especially the Australian government,
enforce border controls to deter the illegal movement of people. Even during
a time period where 'push-factors' generating forced migration are not in
decline, the drop in asylum applications, particularly in Western countries,
indicates tougher border enforcement and other administrative techniques
to deter asylum arrivals.
The report outlines the normative
reasoning on the obligation to protect, the history of refugee migration
to Australia, the Australian approach to detention, the effects of detention
on refugees and asylum-seekers , the rationale for detention, the creation
of 'second-class' asylum seekers with the Temporary Protection Visa, and
the generation of fear relating to 'boat people'.
Young, W. (4 July 2002).
NGOs call on UNHCR Executive Committee to oppose interception.
Retrieved April 24, 2003, from http://www.refugees.org/world/articles/ngo_rr00_5.htm
In early July, Wendy
A. Young, director of government relations for the Women's Commission for
Refugee Women and Children, addressed the UN High Commissioner for Refugees
(UNHCR) Executive Committee in Geneva, on behalf of nongovernmental organizations
(NGOs) regarding UNHCR's draft statement on Interception of Asylum Seekers
and Refugees. The statement urged the government members of the Executive
Committee to "reaffirm their legal obligation to protect refugees by condemning
the interception of asylum seekers and refugees, including interdiction
of asylum seekers and refugees in the territorial waters of a State or on
the high seas." Portions of Young's speech are presented on this web page.