Alex Rohlwing | November 23, 2015
Governments Must Comply with International Law
Patrick Griffith and Jennifer Podkul
But some governments are no longer content to merely erect barriers to migration at their own borders. Increasingly, some are actively seeking to “externalize” migration control and limit the ability of people – many of them seeking protection under international law – from even reaching their shores. Although states have a right to exercise their sovereignty through border control, they are not absolved of their obligations under international law. Indeed, while the world waits for an international solution to refugee crisis after refugee crisis, we must ensure that government actions to limit migration at home and abroad comply with international law.
These state actions do not happen in a vacuum. The High Commissioner noted that the media only began its wall-to-wall coverage of the Syrian refugee crisis after the large numbers of Syrian refugees began arriving in wealthy, developed Europe. Of course, the crisis for Syrians fleeing their homeland began much earlier, and countries such as Turkey and Lebanon have been receiving incredibly high numbers of persons seeking protection at their borders. A similar story unfolded on this side of the Atlantic last summer, when the media finally began to focus much-needed attention on the violence plaguing Central America after thousands of unaccompanied minors arrived in the U.S. While the headlines have faded, however, the causes of forced migration in El Salvador, Honduras, and Guatemala have not.
The humanitarian crisis in Central America continues, and children are still fleeing in record numbers – four times the historical average. While there was a partial drop in the number of arrivals last year in the U.S., that dip is likely due to the interception of these children before they reach the U.S. So while the crisis has faded from the headlines, the need to ensure the protection of these children under international law remains.
The U.S. government has made no secret of its desire to have these children stopped before they reach the border. Secretary Jeh Johnson, who heads the Department of Homeland Security, was ordered to address the influx and promised to work with his Mexican counterparts on indicting Central American migrants. The strategy appears to have worked. In fact, President Obama specifically credited the Mexican government’s efforts – particularly at its southern border – with helping to bring the number of arrivals in the U.S. back to “more manageable levels.”
But this partnership is violating migrant children’s rights in several ways.
In a report published by the Human Rights Institute last spring in partnership with the Women’s Refugee Commission, students from Georgetown Law documented the challenges that northward-bound children face in accessing international protection when they are detained near the border with Guatemala. In The Cost of Stemming the Tide: How Immigration Enforcement Practices in Southern Mexico Limit Migrant Children’s Access to International Protection, the students found that unaccompanied children detained in Mexico face detention immediately after they are apprehended, for periods that exceed what is allowed under international law, and often under circumstances that violate the baseline “best interest of the child” standard. Further, the report finds that the Mexican government is failing to adequately screen these children for international protection needs or inform them of their right to seek asylum – leaving local NGOs to fill in the gaps and creating the possibility that some may be deported in violation of international law. These potential violations of bedrock international principles should give the U.S. pause in how it seeks Mexico’s help in “stemming the tide” of children fleeing violence and poverty in Guatemala, Honduras, and El Salvador. The U.S. should ensure that any aid given to Mexico to support border enforcement comes with aid specifically designed to help Mexico ensure children who are in need of protection are able to access it.
In response to very real risk of human rights violations when governments externalize migration controls or attempt to interdict migrants abroad, the Inter-American Commission on Human Rights held a thematic hearing on the issue last month. It is also the subject of a joint working paper of the Human Rights Institute and Women’s Refugee Commission.
But the Americas are not the only place where states increasingly attempt to stop migrants before they reach their destination. Efforts in Europe – whether to scuttle smugglers’ boats, build fences, or develop an EU-wide plan for refugee relocation - are now in the news on a daily basis. Australia has long sought to interdict migrants in an effort to “stop the boats.” No matter where they occur, however, border externalization efforts and bilateral approaches regulating migration flows must meet internal standards.
States may not simply shirk their responsibility to respect international law by externalizing rights violations. Regardless of their status, migrants have a range of rights (including against arbitrary detention) and refugees in particular have the right flee persecution and to seek protection abroad. Efforts to address large and often mixed migrant flows must respect the bedrock principle of non-refoulement – the prohibition against returning asylum seekers to persecution at home or in another country. This remains true whether states act alone, in coordination with one another, or far from their own borders.
While the world waits for an effective, multilateral approach to governing international migration, as High Commissioner Guterres called for, the actions of states to do so must be closely monitored. Where governments violate international law in an attempt to regulate migration, they must be held accountable.
Patrick Griffith is the Dash/Muse Fellow at the Georgetown Law Human Rights Institute. Jennifer Podkul is a Senior Program Officer at the Women’s Refugee Commission and an Adjunct Professor at Georgetown Law.
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