On May 29, 2003, refugee advocates from across Canada and several other countries gather in Ottawa to discuss the issue of interdiction and to strategize about how to bridge the gap between interdiction and human rights. This article provides some context for this discussion.

By Andrew Brouwer

In a recent speech to the Canadian Bar Association, Immigration Minister Denis Coderre observed proudly: "In the past six years, our migration integrity specialists have stopped more than 40,000 people with improper documents before they boarded planes for North America."⁽¹⁾

For readers who, like the author, were unfamiliar with Ottawa's latest euphemism, this statement might be a little confusing. Dictionaries define integrity as "moral uprightness" and "steadfast adherence to a strict moral or ethical code."⁽²⁾ One might therefore expect that officials whose specialty it is to ensure that Canada's migration program has integrity would be responsible for ensuring that, for example, refugees are protected, asylum-seekers have access to status determination procedures, and children and families are reunited as quickly as possible. You would expect their job description to include reforming visa policies to make them fair and non-discriminatory, and making certain that no one is ever returned to persecution or torture.

Unfortunately, you would be wrong. In fact, the job of Canada's migration integrity specialists is almost exactly the opposite of what the words mean: their job is to intercept (or "interdict") travellers, enforce visa policies and generally bar from Canada anyone who hasn't been invited. It makes no difference that they may be refugees desperately trying to reach asylum or children seeking to be reunited with their parents in Canada; if they don't have a valid visa and a passport, they will be turned away.

Take Mr. K., for example. A pro-reform journalist in Iran, he feared persecution by the Iranian authorities because of his writings and fled Iran using false documents. He travelled by air, via Moscow and Havana, hoping to reach Canada, where his brother is a citizen. However, at the airport in Havana, while transferring to the final leg of his journey, one of Canada's "migration integrity specialists" discovered his fraudulent documents and prevented him from boarding his flight to Canada. Since Cuba is not a party to the 1951 Convention relating to the Status of Refugees, Mr. K could not claim asylum there. Before being deported to Moscow, Mr. K. was able to telephone his brother in Canada, who in turn called the Ottawa office of the United Nations High Commissioner for Refugees (UNHCR) to explain his brother's plight. UNHCR contacted their colleagues in Moscow, to make sure that Mr. K. was not sent back to Tehran where they feared he would be persecuted, and was given a chance to seek asylum in Russia, which is officially a party to the 1951 Convention (albeit with significant shortcomings). Despite numerous requests, however, UNHCR staff in Moscow were denied access to Mr. K. He was briefly detained at Moscow's International Airport and then was deported back to Tehran. He was arrested on arrival in Iran.

A widespread phenomenon
Mr. K's story is hardly unique. Canada, the UK and other European states have been interdicting "improperly documented" travellers at airports abroad for years. This type of interdiction is part of a package of measures including visa policies and carrier sanctions which are used by western states to keep out "undesirables": asylum-seekers, uninvited migrant workers, anyone who doesn't fit the country's image of the "ideal" educated, wealthy immigrant or tourist with money to spend.

Migration control really begins with visa policies. To get on an aircraft or boat you have to have an official visa document issued by the government of the country to which you are travelling. The dramatic impact of visa policies on access to asylum is not always recognised, but one need only think back to Canada's decision to require a visa for Guatemalans in 1984 or Czechs in the late 1990s for potent examples. Before the imposition of the visa requirements, the majority of asylum-seekers from those countries who arrived in Canada were recognised as refugees. With the visa requirement, asylum-seekers practically stopped arriving from the countries.

Since desperate situations call for desperate measures, many asylum-seekers to whom Canada will not issue a visa, or who cannot get a passport from their own government, resort to false documents. In order to make sure that they still cannot reach Canada, Canada and other states impose large fines and fees ("carrier sanctions") on transport companies such as airlines that bring "improperly documented persons" (some of them bound to be asylum-seekers) into their countries. To avoid these costs, transport companies screen passengers' documents and refuse boarding to those who don't have satisfactory documents. Canada's "migration integrity specialists" (usually called Immigration Control Officers) are posted in international airports to interdict improperly documented persons seeking to board a flight to Canada, and assist airlines to do the same.

Interdiction is not restricted to airports; indeed, much more common is interdiction at sea, or "maritime interdiction." Among the best-known examples is the USA's notorious policy of interdicting Haitian and Cuban migrants and asylum-seekers on the high seas and either delivering them back to their countries of origin or detaining them at Guantanamo Bay. Another is Australia's infamous "Pacific Solution" of using their navy to block ships carrying asylum-seekers attempting to reach Australia, and forcing them to land elsewhere. Interdiction also occurs in border zones and even in France's fictional "international zone" at Charles De Gaulle airport in Paris.⁽³⁾

While interdiction may sometimes be presented by governments explicitly as an attempt to restrict access to their country by undocumented refugees and asylum-seekers, it is more often portrayed in humanitarian terms, as either rescue-at-sea or as part of a broader strategy to fight smuggling and trafficking in persons. Generally, when discussing the various forms of unauthorized or irregular migration, governments admit that they are actually talking about "mixed flows" of refugees and non-refugees. Nevertheless, interdiction programs seldom differentiate between those who need protection and those who do not. No attempt is made to assess the individual circumstance of the interdicted person; instead she or he is painted with the same broad brush of "irregular migrant" and is sent back.

(Even where a country does provide people who are interdicted with an opportunity to claim asylum, as with US maritime interdiction, these opportunities are not provided to all interdicted persons on an equal basis. Rather, access to asylum procedures for interdicted travellers depends on their country of origin, and even where provided the procedures generally fall far short of the "fair and effective" standard required by the international community.)

The results can be tragic. As the example of Mr. K demonstrates, stopping and turning back refugees without giving them an opportunity to seek asylum may mean condemning them to continued persecution, including detention, torture and even death. As a result of interdiction, lives are ruined, futures destroyed, families torn apart.

Violations of international law

Interdiction violates basic principles of international law. By preventing asylum-seekers from seeking and obtaining protection from persecution, interdiction flies in the face of the fundamental human right "to seek and enjoy in other countries asylum from persecution" enshrined in the 1948 Universal Declaration of Human Rights. Sending asylum-seekers back to their country of origin without examining their claim is also contrary to the bedrock international refugee law principle of non-refoulement (the principle that a country may not return a person to a place where they would face persecution or torture), guaranteed by Canada and other parties to the 1951 Convention relating to the status of refugees, the 1984 Convention Against Torture and the 1966 International Covenant on Civil and Political Rights, in addition to regional human rights treaties.

This principle of non-refoulement is not limited to those who have been formally recognized as refugees. Instead, the principle applies to both recognized refugees and asylum-seekers who have not yet been formally recognized as refugees. Consequently, if a state elects to deport a person claiming to be a refugee, it must first satisfy itself that the person will not face persecution upon their return. Failure to do so leads to "presumptive refoulement."

The principle also applies to a situation like that which was faced by Mr. K, where although not being sent directly to his country of persecution, he was being sent to a third country which proceeded to send him to his place of feared persecution. This indirect form of refoulement is sometimes called "chain refoulement" and is likewise contrary to international law.⁽⁴⁾

The US government has argued that the prohibition on refoulement only applies to expulsion from within a state's territory, thus exempting interdiction measures which take place outside of the country in international waters or foreign territory. However, while the US Supreme Court accepted the government's argument⁽⁵⁾, the Inter-American Commission on Human Rights subsequently rejected it, finding that the prohibition applied equally on the high seas and in state territory.⁽⁶⁾ International legal scholars largely agree.

Interdiction has been found by the UN Human Rights Committee to violate the universal right to leave one's country, guaranteed in Article 12(2) of the International covenant on Civil and Political Rights⁽⁷⁾, as well as Article 13(2) of the Universal Declaration of Human Rights. And when interdiction is conducted without due regard to the best interests of children affected, or results in family separation, it violates provisions of the Universal Declaration, the two International Covenants and the Convention on the Rights of the Child.⁽⁸⁾

In spite of this flagrant disregard for international laws and norms, interdiction remains a favoured and increasingly popular tool for migrant- and refugee-receiving states like Canada. The Canadian government is actively promoting regional and international harmonization and co-operation on interdiction and other migration control schemes, including via a G-8 working group and the Intergovernmental Consultations on Asylum, Refugees and Migration Policies in Europe, North America and Australia (IGC). (The latter is, interestingly, co-ordinated by a former Director General of the Refugee Branch at Citizenship and Immigration Canada.) Co-operative strategies for interdiction have likewise been under intense discussion at several regional fora, namely the Regional Conference on Migration (known as the "Puebla Process"), which involves Canada and the US, as well as Mexico and several Central and South American states; the Budapest Process of European states; and the wider Bali Conference of 33 states, which is focused specifically on enforcing migration control, and in which Canada participated.⁽⁹⁾ These fora are state-driven and the meetings take place largely behind closed doors. Representatives of civil society are generally excluded from the meetings, and the intergovernmental organizations mandated to oversee the protection of refugees and human rights are only occasionally allowed in the door, and then often only as observers. There appears to be very little discussion in these fora of refugee protection concerns, despite the fact that most of the movements being discussed are so-called "mixed flows" of asylum-seekers and other migrants.

Time for action
Interdiction should be recognized as a direct attack on the institution of asylum. Unless interdiction programs are reformed to include safeguards that accord with basic principles of international human rights and refugee law, as well as an equitable understanding of responsibility-sharing by wealthy western states, we will see increasing numbers of persecuted people effectively locked into their states, deprived of the right to asylum as well as the right to leave their country, sentenced to further persecution and human rights violations with no hope for relief.

While refugee advocates and human rights workers in Canada and elsewhere have opposed interdiction for many years, the time has come for more carefully co-ordinated transnational advocacy. As states increasingly harmonize their interdiction and other migration control measures, and migration policy decisions shift from national legislatures to intergovernmental negotiating fora, it is becoming less and less useful for advocates to focus their efforts solely on domestic policies.

We need to make our voice - and the voices of asylum-seekers - heard where the decisions are being made. If advocates are unlikely to make the guest list for the next meeting of the G-8 or the Inter-Governmental Consultation in Geneva, we will simply have to use other methods of getting refugee protection onto the agenda of western states. Strategic litigation, launched simultaneously in several interdicting countries, might have an impact. So might joint or concurrent international complaints against states that interdict asylum-seekers without safeguards. Media advocacy, academic debate, even direct co-operation with national policy-makers and intergovernmental organizations such as UNHCR and IOM - all may help to put refugee protection on the agendas of states, so that interdiction programs are reformed to include adequate and effective safeguards for those who need protection.

Andrew Brouwer is a member of the Executive Committee of the Canadian Council for Refugees and the Sanctuary Network.

  ¹ Hon. Denis Coderre, "Notes for an Address by the Honourable Denis Coderre, Minister of Citizenship and Immigration," at the Meeting of the Canadian Bar Association, Montreal, PQ, May 3, 2003. Emphasis added.

 ² Canadian Oxford Dictionary and American Heritage Dictionary (3^rd ed.), respectively.

 ³ In order to avoid its international legal obligation to consider asylum claims from persons arriving at their frontier, France came up with the novel idea that the area in the airport where passengers disembark, and before they are cleared by customs, is not really part of France but is an "international zone", and that therefore France has no obligation under refugee or human rights law to grant asylum to such persons.

 ⁴ UNHCR, Interception of Asylum-seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach. (EC/50/SC/CRP.17), 9 June 2000, at 22. See also Lauterpacht, E. and D. Bethlehem, The Scope and Content of the Principle of Non-Refoulement, Geneva: UNHCR, 20 June 2001.

 ⁵ Sale v. Haitian Centres Council, Inc., Supreme Court of the US, No. 92-344, 21 June 1993

 ⁶ The Haitian Centre for Human Rights et al. v. United States, Case 10.675, Report No. 51/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 550 (1997).

 ⁷ See Concluding Observations of the Human Rights Committee: Austria (19/11/98). UN Doc. CCPR/C/79/Add.103; Concluding Observations of the Human Rights Committee : France (04/08/97). UN Doc. CCPR/C/79/Add.80.

 ⁸ See Arts. 12 and 16(3) of the 1948 Universal Declaration of Human Rights; Art. 10(1) of the 1966 International Covenant on Economic, Social and Cultural Rights; Arts. 17 and 23(1) of the 1966 International Covenant on Civil and Political Rights; and Arts. 3(1), 3(2) and 10 of the 1989 Convention on the Rights of the Child. 

⁹ IOM, "Managing Migration at the Regional Level: Strategies for Regional Consultation" 27 May 2002, and notes from IOM Roundtable on Managing Migration at the Regional Level, 5 June 2002, Palais des Nations, Geneva.