(PDF) Contracting Out of Non-Refoulement Protections

Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations. Non-refoulement is a legal norm that protects vulnerable people from being expelled and returned to a state where they might face serious mistreatement. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period, even being viewed as a human right by some. However, recently states have begun entering into international agreements and treaties that overcome the non-refoulement obligation through a number of arrangements. This study will proceed by looking at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction or agreements creating competing norms. This article seeks to draw attention to these effects, criticize them and emphasize that we should not lose sight of the need to protect vulnerable people from expulsion to situations of serious mistreatment.

Contracting Out of Non-Refoulement Protections William Thomas Worster* IN TRODU CTION .......................................................................................... 77 II. NON-REFOULEMENT OBLIGATION ................................................................. 77 III. A GREEING ON FACTS .................................................................................. 82 IV. AGREEING ON JURISDICTION ..................................................................... 87 IV. N ORMATIVE CONFLICT .................................................................................. 98 V . C ON CLU SION ............................................................................................... 106 I. I. INTRODUCTION Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations that the Refugee Convention, Torture Convention, and human rights treaties impose. Non-refoulement is a legal norm that prohibits countries from expelling vulnerable people to states where they might face serious mistreatment. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period; even being viewed as a human right by some. 1 However, recently states have begun entering into international agreements and treaties that overcome the nonrefoulement obligation through a number of arrangements. This Article looks at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction, and agreements creating competing norms. This Article documents an emerging trend and critiques that trend legally. It does not seek to assess whether states have any mala fides in adopting these agreements. In fact, good intentions motivated the adoption of most of the agreements at issue: ensuring public security, prosecuting international criminal law, and promptly returning of abducted children. However, these agreements have had the effect of avoiding non-refoulement. This Article draws attention to these effects, criticizes them, and emphasizes that we should not lose sight of the need to protect vulnerable people from expulsion. II. NON-REFOULEMENT OBLIGATION Multiple treaties impose an obligation not to expel a person to a situation Senior Lecturer, International Law, The Hague University of Applied Sciences, The Hague, The Netherlands; Ph.D. candidate in Public International Law, University of Amsterdam, Faculty of Law, Amsterdam, The Netherlands; LL.M. (Adv.) in Public International Law, cum laude, Leiden University, Faculty of Law, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois; B.A., Modern European History, University of Kansas, Lawrence, Kansas. This Article was initially presented at the 2016 American Society of International Law Research Forum in Seattle, Washington. The author thanks Leslie Johns and the other forum attendees for many helpful comments. 1 See, e.g., U.N. High Comm'r Refugees, Sibylle Kapferer, The Interface Between Extradition and Asylum, U.N. Doc. PPLA/2003/05 (2003), http://www.refworld.org/docid/3fe846da4.html. TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 of mistreatment. 2 Although there are nuances between the requirements of these various versions of non-refoulement with different exceptions, different notions of risk, and sometimes inconsistent interpretations, these treaties contribute, collectively, to the obligation of non-refoulement. One basis for imposing a non-refoulement obligation is protecting refugees from persecution. The most significant instrument in this area is the Refugee Convention of 1951. 3 In addition to this global refugee convention, the former Organization of African Unity (OAU) has adopted its own supplementary refugee treaty for that region, as has the Organization of American States for the Americas. 4 In turn, a great number of states have integrated their non-refoulement obligations from international law into their domestic law 5-and sometimes even their Constitution.6 The EU has been particularly active in providing for asylum protection, 7 in part, by producing See Convention for the Protection of Human Rights and Fundamental Freedoms arts. 2, 3, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]; International Covenant on Civil and Political Rights arts. 6, 7, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; American Convention on Human Rights arts. 4, 5(2), Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter AMCHR]; African Charter on Human and People's Rights art. 4, June 27, 1981, http://www.achpr.org/files/instruments/achpr/banjul-charter.pdf; Arab Charter on Human Rights, Sept. 15, 1994, reprinted in 18 HUM. RTS. L.J. 151, 152 (1997); Arab Charter on Human Rights art. 5, May 22, 2004, reprinted in 12 INT'L HUM. RTS. REV. 893 (2005) ; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 150 as amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 [hereinafter Refugee Convention]; Council Directive 2004/83, 2004 O.J. (L 304) 1, 12 (EC); Directive 2011/95/EU, 2011 O.J. (L 337) 1, 9. 2 3 See Refugee Convention, supra note 2, art. 33. 4 See Org. of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, art. 11(3), Sept. 10, 1969, 1001 U.N.T.S. 45; Org of Am. States, Inter-American Convention to Prevent and Punish Torture, art. 2, Dec. 9, 1985, O.A.S.T.S. No. 67; AMCHR supra note 2, art. 22(8); see also Org. of Am. States, Cartagena Declaration on Refugees, OAS Doc. OAS/Ser.L/V[ll.66, doc.10, rev.1, (1984), https://www.oas.org/dil/1984_cartagena-declaration on-refugees.pdf [hereinafter Cartagena Declaration]. 5 See, e.g., Albania, Law on Asylum (1998), art 7; Algeria, D6cret no 1963-274; Angola, Law no 8 (1990) arts 4, 21; Argentina, Decreto no 1023 (1994) art 171; Armenia: Law on Refugees (1999) art 19; Fremdengesetz {FrfFRG] [Aliens Act] BUNDESGESETZ [BGBL] No. 75/1997, art 57(1)(2) (Austria); Asylgesetz [AsyTVfG] (Asylum Procedure Act], June 26,1992, BUNDESGESETZ [BGBL] No. 76/1997,, art 21 (Austria); Albania: Law No. 8432 of 1998 on Asylum in the Republic of Albania, arts. 7, 14 December 1998, http://www.refworld.org/docid/3ae6b5cO7.html [last visited Nov. 2, 20171; National Legislative Bodies / National Authorities, Algdrie: Ddcret no. 1963-274 du 1963 Fixant les Modalitds DApplication de la Convention de Genfve du 28 Juillet 1951 Relative au Statut des Rifugis, 25 July 1963, http://www.refworld.org/docid/3ae6b52518.html (last visited Nov. 2, 2017) Law No. 1023, art. 171, June 29, 1994, B.O. 27925 (Arg.); Migration Act 1958 (Cth) § 36 (Austl.).. The list could go on. 6 See, e.g., 1976 CONST. art. 36 (Alb.); 1937 CONST. art. 104 (Belr.); 2012 CONST. art. 191 (Belg.); CONSTITUIckO FEDERAL [C.F.] [CONSTITUTION] art. 141, 33 (Braz.); 1947 CONST. art. 84 (Bulg.). 7 See Commission Publication, Charter of Fundamental Rights art. 18, 2000 O.J. (C364) 1, 12; Case C- 373/13, H.T. v. Land Baden-Wiirttemberg, 2014 E.C.R., http://curia.europa.eu/juris/document/document.jsf-jsessionid=9ea7d2dc3Od633ledffe5blc44e9bO Winter 2017] CONTRACTING OUT: NON-REFOULEMENT a Common European Asylum System and Qualification Directive to 8 harmonize asylum qualification and processing throughout Europe. Non-refoulement protects a person from the risk he or she will face torture upon expulsion. The Convention Against Torture prohibits states from expelling people to a state where they might face torture; or cruel, 9 inhuman, or degrading treatment or punishment. Similar protection exists 10 under the International Covenant on Civil and Political Rights as well as under regional conventions such as the African Convention on Human and 12 People's Rights,11 the European Convention on Human Rights ("ECHR") 13 and the Charter of Fundamental Rights of the European Union. Incidentally, the ECHR also prohibits expulsion to a situation where a person might face a trial based on evidence acquired through torture. 14 These topical treaties are joined by a wide number of other instruments that collectively contribute to the general application of non-refoulement. 157561&pagel 18a~fafb~a4241.e34KaxiLc3qMb40Rch0SaxyMbhz0?text=&docid= 7 g=EN&mode=lst&dir=&occ=first&part=l&cid=148163 . n d ex = 0 & d o cl a n 8 See Regulation No. 604/2013, 2013 O.J. (L 180) 31 (EU); Directive 2013/33/EU, 2013 O.J. (L 180) 60; Directive 2011/95/EU, 2011 O.J. (L 337) 9. 9 See CAT, supra note 2, art. 3; ICCPR, supra note 2, arts. 6-7; OAS Torture Convention, supra note 4, art. 2. 10 See U.N. Int'l Hum. Rts., General Comment 20, Instruments, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1Rev.1 (1994). 11 See generally Modise v Botswana, Communication No. 97/9314AR, African Court on Human 2000), 6, (Nov. H.P.R.], Comm'n [Afr. Rights People's and 97 93 . _14ar/achpr28_97 93 14areng.pdf. http://www.achpr.org/files/sessions/28th/comunications/ 12 See ECHR, supra note 2, art. 3; Soering v. United Kingdom, App. No. 14038/88, Eur. Ct. H.R. 7 88 (1989), http://www.refworld.org/cases,ECHR,3ae6b6fec.html; Cruz Varas v. Sweden, App. No. 69 (1991), http://www.refworld.org/cases,ECHR,3ae6b6fel4.html; 15576/89, Eur. Ct. H.R. Vilvarajah v. United Kingdom, App. Nos. 13163/87, 13164/87, 13165/87, 13447/87 & 13448/87, Eur. Ct. H.R. TT 102-03 (1991), http://www.refworld.org/cases,ECHR,3ae6b7008.html; Chahal v. (1996), 75 7 H.R. Ct. Eur. 22414/93, No. App. Kingdom, United http://www.refworld.org/pdfid/3ae6b69920.pdf; Ahmed v. Austria, App. No. 25964/94, Eur. Ct. H.R. 7 39-40 (1996); T.I. v. United Kingdom, App. No. 43844/98, Eur. Ct. H.R. (2000), http://www.refworld.org/cases,ECHR,3ae6b6dfc.html. 13 See Charter of Fundamental Rights of the European Union, 2010 O.J. (C 83) 389; Case C- 373/13, H. T. v. Baden-Wiirttemberg, 2015 E.C.R. 413. 14 See Jamaa v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012) (Pinto de Albuquerque, J., concurring), http://www.refworld.org/cases,ECHR,4f4507942.html; Soering, App. No. 14038/88, 103; M.S.S. v. 88; Vilvarajah, App. Nos. 13163/87, 13164/87, 13165/87, 13447/87 & 13448/87, (2011), H.R. Ct. Eur. 30696/09, No. App. Belgium, http://www.refworld.org/cases,ECHR,4d39bc7f2.html; Einhorn v. France, App. No. 71555/01, Eur. Ct. H.R. (2001); Al-Saadoon v. United Kingdom, App. No. 61498/08, Eur. Ct. H.R. (2010), Othman (Abu Qatada) v. United http://www.refworld.org/casesECHR,4a5360060.html; (2012), H.R. Ct. Eur. 8139/09, No. App. Kingdom, http://www.refworld.org/cases,ECHR,4f169dc62.html; Bensaid v. United Kingdom, App. No. 44599/98, Eur. Ct. H.R. (2001); Mawaka v. Netherlands, App. No. 29031/04, Eur. Ct. H.R. (2010). TRANSNA TIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 Other important treaties include the Fourth Geneva Convention, 15 the European Convention on Extradition, 16 the American Convention on Extradition, 17 and the Schengen Agreement.' 8 Furthermore, non-refoulement has been reaffirmed in the U.N. Declaration on Territorial Asylum, 19 the Bangkok Principles, 20 and the Cartagena Declaration. 2' The precise application of each specific threat to the person is still governed by the unique requirements of the underlying treaty. However, the core notion that a person must not be returned is imposed for a wide variety of risks, even when that person might be unlawfully present or otherwise in violation of another law. Over time this obligation has established itself as a norm of customary international law 22 and a principle of human rights law generally. 2' In fact, some authorities have gone so far as to conclude that the obligation of nonrefoulement is a jus cogens norm. 24 Certainly, in the conventional and 1 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention] (outlining the humanitarian protections for civilians in war zones). 16See European Convention on Extradition, art. 3(2), Dec. 13, 1957, 359 U.N.T.S. 273 (stating on what grounds a state may refuse to extradite). 17 See Inter-American Convention on Extradition, art. 4(5), Feb. 25, 1981, O.A.S.T.S. No. 60 (describing circumstances under which a state does not have to extradite). 18 See Council Decision 1999/435/EC, Schengen Agreement, 2000 O.J. (L 239) 13 (creating an agreement between the governments of the states of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders). '9 20 G.A. Res. 2312 (XXII), art. 3, Declaration on Territorial Asylum (Dec. 14, 1967). Asian-Afr. Legal Consultative Org., Bangkok Principleson the Status & Treatment of Refugees, art. III, Dec. 31, 1966. 21 Cartagena Declaration, supra note 4, § III, 5. 22 UNHCR Exec. Comm. Concl. Nos. 99 (LV), U.N. Doc. A/AC.96/1003 (2004) (noting the prevalence of non-refoulement obligations); 94 (LIII), U.N. Doec. A/AC.96/973 (2002); 80 (XLVII), U.N. Doc. A/52/12/Add.1 (1997); 74 (XLV), U.N. Doc. A/49/12/Add.1 (1994); 71 (XLJV), U.N. Doc. A/48/12/Add. 1 (1993); 33 (XXXV), U.N. Doc A/39/12/Add.1 (1984); 6 (XXVII), U.N. Doc. A/32/12/Add. 1 (1977). 21 See Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principleof NonRefoulement, in REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR's GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION (Erika Feller et al. eds., 2003) (discussing obligations to refugees under international law); Erika Feller, Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come, 18 INVL J. REF. L. 509, 511, 523 (2006) (describing the same). 24 See, e.g., Cartagena Declaration, supra note 4, § III, 5 (saying it should be "observed as a rule of jus cogens"); Jamaa v. Italy, App. No. 27765/09, Eur. Ct. H.R. 65 (2012) (Pinto de Albuquerque, J., concurring), http://hudoc.echr.coe.int/app/conversion/pdfl?library=ECHR&id=001-109231&filename=001109231.pdf (calling it an "obligation"); UNHCR Exec. Comm. Concl. No. 25 (XXXIII), U.N. Doc. A/37/12/Add.1 (1982) (referring to it as a "peremptory rule"); GUY S. GOODWIN-GILL & JANE McADAM, THE REFUGEE IN INTERNATIONAL LAW 218 (2007) (arguing state views and practice have created such a norm); ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN Winter 2017] CONTRACTING OUT: NON-REFOULEMENT customary international law context, non-refoulement is a non-derogable rule. 25 Even a conservative interpretation of the principle must conclude that, at a minimum, when the person is at risk for persecution, torture, or cruel, inhuman, or degrading treatment, non-refoulement is a jus cogens obligation. 26 For purposes of this Article, it is unnecessary to resolve whether, outside of torture, non-refoulement is jus cogens. Of course, if non-refoulement is a jus cogens obligation, this conclusion brings added force to the arguments in this Article about evading the norm. This Article will not necessarily work under the assumption that the norm is jus cogens but will assume that the norm exists under customary international law. There are a few exceptions to the non-refoulement protection. The Refugee Convention states that when there are "reasonable grounds for regarding [the person] as a danger to the security of the country" or where the person has been "convicted by a final judgment of a particularly serious 27 crime" and thus "constitutes a danger to the community of that country" or 28 where "there are serious reasons for considering that" the person has committed an international crime-such as war crimes, crimes against 29 humanity or genocide-non-refoulement protection may not exist. While the INTERNATIONAL LAW 55 (2008) (discussing how such norms are identified); Jean Allain, The Jus Cogens Nature of Non-Refoulement, 13 INT'L J. REF. L. 533, 538 (2001) (stating that it "is part of customary international law"). 25 See Refugee Convention, supra note 2, art. 33 (outlining the absolute nature of the obligation); see also ECHR, supra note 2, arts. 15(2), 17 (stating derogation is not allowed); CAT, supra note 2, art. 2(2) (stating that there can never be a justification for torture); AMCHR, supranote 2, art. 27 (stating that the rule may is non-derogable); ICCPR, supra note 2, art. 4(2)-5(1) (stating that 79 derogation is impermissible); Chahal v. United Kingdom, App. No. 22414/93 Eur. Ct. H.R. (1996), http://www.refworld.org/pdfid/3ae6b69920.pdf (noting that no derogation is allowed); U.N. Hum. Rts. Comm'n, Fact Sheet No. 20 (1992) (listing various international legal documents creating the obligation); U.N. Hum. Rts. Comm'n, Fact Sheet No. 24 (1994) (outlining protections for migrant workers). 26 See UNHCR Exec. Comm. Concl. No. 6 (XXVIII), supra note 22 (describing how thoroughly such a rule has been adopted); UNHCR, Note on InternationalProtection, U.N. Doc A/AC.96/830, 5 (Sept. 1994) (noting that such obligations are recognized virtually everywhere). 27Refugee Convention, supra note 2, art. 33(2); see also Yusupov v. Att'y Gen., 518 F.3d 185, 202 (3d Cir. 2008) (noting that Article 33(2) is universally regarded as creating an exception); Alaka v. Att'y Gen., 456 F.3d 88, 102 (3d Cir. 2006) (determining what constitutes a serious crime for the purposes of removal); Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (holding alien was not subject to removal when he was at risk of being tortured in his home state); Chahal, 74-81 (discussing circumstances under which deportation will not be App. No. 22414/93, allowed). 28 Refugee Convention, supra note 2, Introductory Note. 29 In re A-H-, 23 I&N Dec. 774 (A. G. 2005); Case C-57/09, Case C-101/09 Federal Republic of I-A-3, E.C.R. 2010 D., & B. v. Germany http://curia.europa.eu/juris/document/document.jsf?text=&docid=79455&pageIlndex=0&doclangen&mode=lst&dir=&occ=first&part=l&cid=461936; Case C- 373/13, H.T. v. Land Baden7, E.C.R. 2014 Wfirttemberg, 44 9 5b 33 edffe lc e bO http://curia.europa.eujuris/document/document.jsf;jsessionid=9ea7d2dc3d6 = O&doclan 18aOfafbOa4241.e34Kax1Lc3qMb4RchOSaxyMbhzO?text=&docid=157561&pagelndex g-EN&mode=lst&dir-&occ=first&part=l&cid=1481637. TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 Declaration on Territorial Asylum also contemplates an exception to the prohibition on expulsion, it suggests that expulsion could relocate the offender to a different, safe state. 30 The Organization of African Unity ("OAU") Refugee Convention, American Convention on Human Rights, European Convention on Human Rights, Torture Convention, International Covenant on Civil and Political Rights ("ICCPR") and Cartagena Declaration do not provide any exceptions to non-refoulement for refugees or persons at risk for torture. 31 Moreover, the Executive Committee of the Office of the U.N. High Commissioner for Refugees ("JNHCR") has advised that exceptions to non-refoulement for refugees should be interpreted and applied narrowly. 32 III. AGREEING ON FACTS Despite this broad and rigorous regime of protection, states have entered into agreements that displace their non-refoulement obligations. First, states may reach agreements on the facts on whether there is a qualifying risk of mistreatment. It is possible for a legal act to seek to establish facts. 33 A common vehicle for this kind of agreement is diplomatic assurances. 34 These agreements range from case-by-case diplomatic notes 35 (perhaps accompanied 30 Declaration on Territorial Asylum, supra note 19, art. 3(3); see also Comm. of Ministers, Recommendation Rec(2005)6 of the Committee of Ministers to Member States on Exclusion from Refugee Status in the Context of Article 1 Fof the Convention Relating to the Status of Refugees of 28 July 1951 (Mar. 23, 2005). 31 See Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa art. 1(4)-(5), June 20, 1974, U.N.T.S. 1469 (outlining the exceptions); U.N. Comm. Against Torture, Rep. of the Committee Against Torture, Supp. No. 44, A/52/44 (Sept. 10, 1997). 32 See Jamaa v. Italy, App. No. 27765/09 Eur. Ct. H.R. 65 (2012) (Pinto de Albuquerque, J., concurring), http://hudoc.echr.coe.int/app/conversion/pdf/?library-ECHR&id=001109231&filename=001-109231.pdf (noting when derogation may be permitted); UNHCR Exec. Comm. Concl. No. 17 (XXXI), U.N. Doc. No. 12A A/58/12/Add.1 (1980) (noting that states should exercise the right only rarely); UNHCR Exec. Comm. Concl. No. 22 (XXXII), supra note 24 (noting the same); UNHCR Exec. Comm. Concl. No. 58 (XL), U.N. Doc. No. 12A A/44/12/Add.1 (1989) (stressing the need to protect refugee children in particular); UNHCR, Guidelines for National Refugee Legislation, HCR/120/41/80/GE. 81-0013, at 6(2) (Dec. 9, 1980) (recommending very few exceptions); UNHCR, Declarationof States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/9, 4 (Jan. 16, 2002) (noting the particular importance of non-derogation). 33See, e.g., Denmark v. Turkey, App. No. 34382/97, Eur. Ct. H.R. (2000); Sur v. Turkey, App. No. 21592/93, Eur. Ct. H.R. 31 (1997) (finding that an agreement between states to settle a case is a fact that renders the pending case without issue). 34Adopting safe country agreements is a similar method of contracting out of non-refoulement obligations. See, e.g., Jamaa, App. No. 27765/09, TT 127-28 (designating Libya as safe based the presumption of compliance with the Italian-Libyan Friendship Treaty of 2008); U.N. High Comm'r Refugees, Background Note on the Safe Country Concept and Refugee Status, U.N. Doc. EC/SCP/68 (July 26, 1991). 35 See MT v. Sec'y of State for the Home Dep't [2007] EWCA. (Civ) 808 [125]-[129], [168], [2008] QB 533, 583-585, 593 (Eng.); M.S.S. v. Belgium, App. No. 30696/09, Eur. Ct. H.R. (2011), http://www.refworld.org/cases,ECHR,4d39bc7f2.html; Al Hanchi v. Bosnia & Herzegovina, App. No. 48205/09, Eur. Ct. H.R. T 27 (2011), http://hudoc.echr.coe.int/eng?i=001-107450; Suresh v. Winter 2017] CONTRACTING OuT: NoN-REFOULEMENT by sworn affidavits by domestic prosecutors) understanding ('MOU"), 37 36 to standing memoranda of 38 and in at least one case, a treaty. The purpose of these assurances is to assure the expelling state that the person at issue will not be mistreated upon receipt. These assurances seek to change the facts in the case. The reason that an individual might enjoy non-refoulement protection is because there is a risk of mistreatment upon expulsion. The Refugee Convention prohibits expulsion to a place where the person's "life or freedom would be threatened" which has been interpreted to cover the persecution in the Refugee Convention, 39 but also a wider scope of threats such as wide scale 41 violence. 40 Other treaties prohibit return when there is a "real risk" or a Canada (Minister of Citizenship & Immigration), [20021 1 S.C.R. 3 (Can.); Mahjoub v. Canada 39, 53 (Can. Fed. (Minister of Citizenship & Immigration), 2006 FC 1503, [2007] 4 F.C.R. 247, Ct.); Sing v. Canada (Minister of Citizenship & Immigration), 2006 FC 672, 6 (Can. Fed. Ct.); 37-40 (2010), 21, Eur. Ct. H.R. I 24268/08, Klein v. Russia, App. No. http://hudoc.echr.coe.int/eng?i=001-98010; Manfred Nowak (Special Rapporteur on Torture or Degrading Treatment or Punishment), Promotion and Protection of All Human Rights, civil, Political, Economic, Social, and CulturalRights, Including the Right to Development, 69, U.N. Doc. No. A/HRC/10/44IAdd.2 (Feb. 18, 2009); Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (Comm. Against Torture May 24, 2005); Attia v. Sweden, Communication No. 199/2002, U.N. Doc. CAT/C/31[D/199/2002 (Comm. Against Torture Nov. 24, 3.6-3.9, U.N. Dec. 2003); Alzery v. Sweden, Communication No. 1416/2005, App. No. 37201/06, CCPR/C/88/D/1416/2005 (Hum. Rts. Comm. Nov. 10, 2006); Saadi v. Italy, 2 2 51 (2008), http://www.refworld.org/cases,ECHR,47c688 e .html; Khemais 8 v. Eur. Ct. H.R. 9 ; Italy, App. No. 246/07, Eur. Ct. H.R. (2009), http://hudoc.echr.coe.int/eng?i=001-914 Doc. U.N. 12.5, Maksudov v. Kyrgyzstan, Communication No. 1461/62/76/77/2006, CCPR/C/93JD/1461, 1462, 1476 & 1477/2006 (Hum. Rts. Comm. July 31, 2008); Othman (Abu (2012), H.R. Ct. Eur. 8139/09, No. App. Kingdom, United v. Qatada) http://www.refworld.org/cases,ECHR,4f169dc62.html. See Einhorn v. France, App. http://hudoc.echr.coe.intleng?i=001-22159. 3 No. 71555/01, Eur. Ct. H.R. (2001), 37 Assurances between Jordan and the United Kingdom took the form of a blanket Memorandum of Understanding ("MOU") under which individual assurances were issued. The MOU with Jordan was made public as an annex to the judgment in the Othman case (sometimes alternatively referred to as "Abu Qatada"). Similarly, the MOU between Ethiopia and the United Kingdom was reprinted in the XX case, which, like the Othman case, was heard before the U.K. Special Immigration Appeals Commission ("SIAC"). Additional U.K. MOUs have also now been published on the website of the U.K. Foreign and Commonwealth Office ("FCO"). See XX v. Sec'y of State for the Home Dep't, App. No. SC/61/2007, 20 (Special Immigr. App. Comm'n, UK, Sept. 10, 2010). 18 See Treaty on Mutual Legal Assistance in Criminal Matters between the United Kingdom of Great Britain and Northern Ireland and the Hashemite Kingdom of Jordan, Mar. 24, 2013, T.S. No. 025/2013: Cm. 8681 [hereinafter Treaty on Mutual Legal Assistance]. 39See G.A. Res. 429(V), at 48 (Dec. 14, 1950); Org. of African Unity [OAU] Convention Governing the Specific Aspects of Refugee Problems in Africa art. 11(3), Sept. 10, 1969, U.N.T.S. 14691 [hereinafter OAU Convention]; Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama § 111(5), Nov. 22, 1984 [hereinafter Cartagena Declaration]; INS v. Stevic, 467 U.S. 407, 423-26 (1984). See Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of NonRefoulement: Opinion, in REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION 87, 90-93 (Erika Feller et al. eds., 2003). 40 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 danger of torture, right to life or personal freedom, or life, physical integrity, or liberty. 42 For purposes of this Article, the precise nuances between the degree of risk of mistreatment are not crucial, rather what is important is how expelling states are increasingly using agreements to address this risk. Whether the protection from expulsion covers persecution, torture, or other serious mistreatment, in each case the expelling state must assess the risk of mistreatment ex ante. This finding is a factual finding: either there is a risk or there is not. If there is no risk, the non-refoulement obligation is not triggered. Thus, this approach is not creating direct normative conflict because the international agreement, the assurance, is used in a very different way than in situations of treaty conflict. In an effort to mitigate this risk of mistreatment, expelling states sometimes request assurances from receiving states that an individual will not be mistreated upon receipt. Assurances attempt to alter the underlying facts that give rise to the obligation in the first place. After all, if the receiving state is stating an intention not to mistreat the individual, then surely the fact of the risk of mistreatment is lower than before this statement. 43 With the risk of mistreatment diminished by the state's pledge, reviewing courts and other bodies assess the assurances as part of the overall fact of risk that would justify blocking the expulsion. 44 With a lower risk, Hum. Rts. Comm., Gen. Comment No. 31 on Its Eightieth Session, U.N. Doe. CCPRIC/21/Rev.1/Add.13, 10 (Mar. 29, 2004) [hereinafter Gen. Comment No. 31]. 42 See id.; Comm. Rts. Child, Gen. Comment No. 6 on Its Thirty-Ninth Session, U.N. Doe. CRC/GC/2005/6 (Sept. 1, 2005); Hum. Rts. Comm., Gen. Comment No. 29 on Its Seventy-Second Session, U.N. Doe. CCPR/C/21/Rev.1/Add.ll (Aug. 31, 2001); Tapia Paez v. Sweden, Communication No. 39/1996, 14.5, U.N. Doe. CAT/C/18/D/39/1996 (Comm. Against Torture Apr. 28, 1997); Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003; Organization of American States [OAS], American Convention on Human Rights art. 22(8), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter AmCHR]; Soering v. United Kingdom, App. No. 14038/88, Eur. Ct. H.R. (July 7, 1989), http://hudoc.echr.coe.int/eng?i=001-57619; Varas v. Sweden, App. No. 15576/89, Eur. Ct. H.R. 23 (Mar. 20, 1991), http://hudoc.echr.coe.inteng?i=001-57674; Vilvarajah v. United Kingdom, App. No. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87 Eur. Ct. H.R. (Oct. 30, 1991), http://hudoc.echr.coe.inteng?i=001-57713; Chahal v. United Kingdom, App. No. 22414/93, Eur. Ct. H.R. (Nov. 15, 1996), http://hudoc.echr.coe.int/eng?i=001-58004; Ahmed v. Austria, App. No. 25964/94, Eur. Ct. H.R. (Dec. 17, 1996), http://hudoc.echr.coe.int/eng?i=001-58001; Mamatkulov v. Turkey, App. Nos. 46827/99, 46951/99, Eur. Ct. H.R. (Feb. 6, 2003), http://hudoc.echr.coe.int/eng?i=001-60924; Nivette v. France, App. No. 44190/98, Eur. Ct. H.R. (Dec. 14, 2000), http://hudoc.echr.coe.int/eng?i=001-23082; Einhorn v. France, App. No. 71555/01, Eur. Ct. H.R. (Oct. 16, 2001), http://hudoc.echr.coe.int/eng?i=00122159. 41 43 For clarity's sake, this Article does not cover repatriation agreements or arrangements like the EU-Turkey deal because in those cases, the persons contemplated for return have not been successful in claiming refugee/asylum under existing law and without the intervention on the facts of the receiving state. Instead we are discussing person-specific pledges not to mistreat a person, and in so doing to reduce the risk that the person will be mistreated. 44 See Abichou v. Germany, Comm. No. 430/2010, 14.4, U.N. Doc. CAT/C/50/D/430/2010 (Hum. Rts. Comm. May 21, 2013); Agiza, U.N. Doe. CAT/C/34/D/233/2003; Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3, 124 (Can.); Mahjoub v. Canada (Minister of Citizenship & Immigration), [2007] 4 F.C.R. 334 (Can. Fed. Ct.); Canada (Minister of Justice) v. Pacificador, [2002] 216 D.L.R 47 (Can. Ont. O.A.C.); HR 15 september 2006, ILDC 2006, 851 Winter 2017] CONTACTING OUT: NON-REFOULEMENT there is nothing to protect the person from. Typically, assurances are assessed much like any fact: focusing on the credibility of the issuing state (or authority), the suitability of the assurances as a means to eliminate the risk of mistreatment to the specific person, and 5 the reliability, assuming good faith.4 This assessment cover the degree and nature of the risk to the individual concerned, the source of the danger for the individual, whether the assurances will be effectively implemented, and whether the undertaking provided is binding on those state organs. The assessment further considers whether the authorities of the receiving state are in a position to ensure compliance and, finally, any practice with regard undertakings and general human rights to diplomatic assurances or similar 46 state. receiving the in situation A variety of authorities have argued that these agreements cannot 47 overcome the non-refoulement obligation. After all, if a state needs to 48 and, request assurances, then there must be a risk of mistreatment unfortunately, some individuals have been mistreated notwithstanding the assurances. 49 Assurances are particularly weak in the case of refoulement of a refugee to a situation of persecution because, as a part of making the refugee determination, the authority must determine that there is a real, reasonable, 50 It might be that,51 after and verifiable individual risk to the person. by the assurances. altered not is risk the evaluating all of these factors, In general, assurances are being accepted by expelling states not as legal instruments that somehow conflict with and overcome non-refoulement but as m.nt. (Minister of Justice/Kesbir) (Neth.); Hof Gerechtshof 7 mei 2004, NJ 2007, 276 m.nt (Advies InzakefN. Kesbir) (Neth.); Khouzam v. Hogan, 529 F. Supp.2d 543 (M.D. Pa. 2008); Youssef v. Home Office [2004] EWHC 1884 (QB) (Eng.); Russia v. Zakaev, I.L.D.C. 259 (Bow Street Magistrates' Ct. 2003) (UK). 13.4; Suresh, 1 S.C.R. 3; Chahal, App. No. 22414/93; BB v. Sec'y of State for the Home Dep't [2015] EWCA (Civ) 9 (Eng.); Soering, App. No. 14038/88. 88; 7 13.4-13.5; Soering, App. No. 14038/88, 46 See Agiza, U.N. Doc. CAT/C/34D/233/2003, 105. 7 Chahal, App. No. 22414/93, 45 See Agiza, U.N. Doc. CAT/C/34/D/233/2003, 47 See U.N. Secretary-General, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 51, U.N. Doc. A/59/324 (Sept. 1, 2004). 48 See generally Alvaro Gil-Robles (Comm'r for Human Rights), on His Visit to Sweden, CommDH (2004) 13 (July 8, 2004); see also Promotion and Protection of Human Rights: Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Comm'n on Hum. Rts. on Its Sixty-First Session, 56, U.N. Doc. E/CN.4/2005/103 (Feb. 7, 2005). 49 See generally Alzery v. Sweden, No. CCPR/C/88/D/1416/2005; Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003. 50 See Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3, 7 52, 124- 25 (Can.). 51 See Soering v. United Kingdom, App. No. 14038/88, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-57619. 98 (July 7, 1989), TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 factual agreements. That is not to say that states could not address the normative value of the assurances, 52 but this does not generally occur. Most authorities agree that, usually, assurances are non-legally-binding political commitments. 53 However, others have challenged this position, 54 including this Article's author. 55 In Othman (Abu Qatada), the United Kingdom unsuccessfully attempted to expel a person on the basis of assurances that the European Court of Human Rights ("ECtHR) held were insufficient, and the United Kingdom was only successful when it entered into a treaty with the receiving state. 56 After the treaty was adopted, Abu Qatada no longer challenged his expulsion, so it is difficult to predict how the ECtHR would have dealt with the treaty serving as an assurance of treatment in that case. However, we do have a hint from prior ECtHR jurisprudence. In Einhorn,the ECtHR understood an assurance as creating a legal obligation, and thus, on that basis, eliminated the risk of mistreatment. 57 But even if an assurance could result in a legal obligation along the lines of Einhorn, it is still unclear how the existence of a legal obligation necessarily overcomes the need to assess the fact of risk, especially because the ECtHR suggested in Einhorn that the legal obligation eliminated the need to make a factual assessment. The conclusion from practice is that states are sometimes making unilateral statements or bilateral agreements that either operate as legal obligations and definitively eliminate the risk of mistreatment or operate as factual agreements that contribute to proving the underlying fact of whether there is a risk of mistreatment.58 In short, states are agreeing on the facts. 52 See generally Einhorn v. France, App. No. 71555/01, Eur. Ct. H.R. (2001), http://hudoc.echr.coe.intleng?i=001-22159 for an isolated case where normativity was considered. 53 See Alzery, CCPRC/88/D/1416/2005, 4.11; Othman v. Sec'y of State for the Home Dep't [2007] S.I.A.C. No. SC/15/2005, [501] (Eng.). See Yin Fong v. Australia, U.N. Doc. No. CCPRIC/97/D/1442/2005, Hum. Rts. Comm., 7.4, 9.7 (Nov. 23, 2009); Council of Europe Steering Committee for Human Rights, Report on its 52nd Meeting, Nov. 6-9, 2001, 4, U.N. Doc. CDDH(2001)035 (Nov. 19, 2001); Steering Comm. for Human Rights, Group of Specialists on Human Rights and the Fight Against Terrorism, appx. 3, U.N. Dec. DH-S-TER(2005)018 (Dec. 16, 2005) ("[Tjhe Group ...is called to . . . (ii) consider the appropriateness of a legal instrument, for example a recommendation on minimum requirements/standards of such diplomatic assurances, and, if need be, present concrete proposals."); STEERING COMM. FOR HUMAN RIGHTS, Group of Specialists on Human Rights and the Fight Against Terrorism, 2nd Meeting, 12-17, DH-S-TER(2006)(005) (Apr. 3, 2006) (recommending against such an instrument). 5 51 See generally William Thomas Worster, Between a Treaty and Not: A Case Study of the Legal Value of Diplomatic Assurances in Expulsion Cases, 21 MINN. J. INT'L L. 253 (2012). 1 See generally Othman, SIAC SC/15/2005; 24 Apr. 2013, Parl Deb HC (6th ser.) (2013) col. 887 (UK); Treaty on Mutual Legal Assistance, supra note 38. 57See generally Einhorn, App. No. 71555/01. 58 See Agiza v. Sweden, U.N. Dec. CAT/C/34/D/233/2003, Hum. Rts. Comm., 13.4 (May 20, 2005); Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3, 124-25 (Can.); BB v. Sec'y of State for the Home Dep't [2015] EWCA (Civ) 9 [27] (Eng.); see generally Mahjoub v. Canada (Minister of Citizenship & Immigration), [2007] 4 F.C.R. 334 (Can.); Hof 'sGravenhage 20 januari 2005, NJF 2005, 106 m.nt. BPV (De Staat der Nederlanden (Ministerie Winter 2017] CONTRACTING OuT: NON-REFOULEMENT IV. AGREEING ON JURISDICTION The second way that a state might contract out of non-refoulement is by entering into an agreement that alters its jurisdiction over human rights situations. This approach turns on what point in its relationship with an individual the state incurs the non-refoulement obligation and whether a state can adjust that relationship through international agreement. At this point, this approach is highly unusual, but it has potential to become problematic. Recently, the International Criminal Court ("ICC") returned several witnesses to the Democratic Republic of Congo ("DRC"), despite the 59 witnesses' asylum claims in the Netherlands. The ICC correctly interpreted 60 including the the Rome Statute of the ICC in line with human rights, principle of non-refoulement, and deferred to the Dutch authorities' decision on asylum. 61 The asylum application was litigated in Dutch courts all the way to the Dutch Supreme Court. The Court upheld the denial of the application by the District Court of Amsterdam. 62 It reasoned that the witnesses were not entitled to protection from non-refoulement under either the Refugee Convention or ECtHR.63 The Court observed that the Rome Statute permits the ICC to call witnesses and transfer them to the seat of the ICC for giving testimony, as 64 well as return them to their state of origin, and that the ICC itself is not party to any of the applicable human rights treaties. Because the ICC is not a van Justitie)/Geintimeerde) (Neth.); HR 7 mei 2004, NJ 2007, 276 m.nt. A.H. Klip (Advies inzake [de opgeiste persoon]) (Neth.); Youssef v. Home Office [2004] EWHC (QB) 1884 (Eng.); Russia v. Zakaev [2003] Bow Street Magistrates' Ct. (UK); Khouzam v. Att'y Gen. U. S., 549 F.3d 235, ?PIN? (3d Cir. 2008); In re Ashraf A1-Jailani, No. A73 369 984-York, 2004 WL 1739163 (B.I.A. June 28, 2004). A difficulty with this approach for refugee claims (and for similar issues of mistreatment) is that refugee status determinations are supposed to be confidential under UNHCR guidelines. 59 See Prosecutor v. Katanga, ICC-01/04-01/07-3003-tENG, Decision on an Amicus Curiae 1-16 (June 9, 2011); Prosecutor v. Lubanga, ICC-01/04-01/06-2766-Red, Redacted Application, Decision on the Request by DRC-DOI-WWWW-0019 for Special Protective Measures Relating to 1-14 (Aug. 5, 2011). his Asylum Application, 60See Rome Statute of the International Criminal Court art. 21(3), July 17, 1998, 2187 U.N.T.S. 38544 (entered into force July 1, 2002) ('The application and interpretation of law pursuant to this article [regarding application of the Rome Statute] must be consistent with internationally recognized human rights ..."). 86. 73; Lubanga, ICC-01/04-01/06-2766-Red, 61 See Katanga, ICC-01/04-01/07-3003-tENG, van Veiligheid en Justitie) (Neth.); ABRvs 27 juni 2014, AB 2014, 2426 m.nt. H. Battjes (Ndjabu Ngabulstaatssecretaris van Veiligheid en Justitie) (Neth.); ABRvS 27 juni 2014, AB 2014, 2430 m. nt. (Manda Ndadza/staatssecretaris van Veiligheid en Justitie) (Neth.). 62 See generally ABRvS 27 juni 2014, AB 2014, 2427 (Mbodina Iribi/staatssecretaris See generally Mbodina Iribi, AB 2014, 2047. Initially, the Court concluded that since the witnesses were under suspicion of crimes that qualified under the Refugee Convention article iF, that non-refoulement on that ground did not apply. Important for this analysis is the fact that guilt of the crimes beyond a reasonable doubt did not need to be shown. Id. 6 64 See id. 8.1. TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 state, it does not incur the non-refoulement obligation. 65 Accordingly, any expulsion would not be done pursuant to Dutch law. 66 While the Court admitted that a state may not expel a person to a state where there is a risk of mistreatment in violation of ECHR, article 3,67 the Court found that the Netherlands had transferred its jurisdiction to the ICC under article 44 of the Headquarters Agreement between the Netherlands and the ICC when it comes to these detained persons.68 Thus, the persons were not within the authority of the Dutch state.6 9 Quite simply the Court concluded that the non-refoulement obligation in the ECHR did not apply, because the Netherlands did not have 'jurisdiction' over the witnesses, as 70 they were in ICC custody. The difficulty with this case is that the Dutch Supreme Court did not apply the usual jurisprudence on jurisdiction when it comes to the ECHR; instead the Supreme Court relied on a different understanding of jurisdiction in the Headquarters Agreement. Human rights treaties generally extend their application to a state's territory and/or "jurisdiction."7 1 For example, ECHR provides "[tjhe High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." 72 In the case of the ICCPR, states parties are obliged to "respect and to ensure [the rights in the ICCPR] to all individuals within its territory and subject to its jurisdiction." 73 The Convention Against Torture ("CAT"') prohibits acts of torture within territories under the state's jurisdiction, 74 but 65 See id. 8.2. 66 See id. 8. 67 See id. 8.3. 68 See Mbodina Iribi, AB 2014, 2047, 8.3; Bosphorus v. Ireland, App. No. 45036/98, Eur. Ct. H.R. 152-53 (2005), http://hudoc.echr.coe.int/eng?i=001-69564. 69 See Mbodina Iribi, AB 2014, 2047, 70 See id. 8.3, 12. 8. 71 See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 7, Dec. 18, 1990, 2220 U.N.T.S. 3; International Convention on the Elimination of All Forms of Racial Discrimination art. 3, Jan. 4, 1969, 660 U.N.T.S. 195 ("[U]ndertake to prevent, prohibit and eradicate all practices of [racial segregation and apartheid] in territories under their jurisdiction."). 72 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 7(1), June 26, 1987, 1465 U.N.T.S 85 [hereinafter Torture Convention]; AmCHR, supra note 42, arts. 1(1), 22(8); European Convention on Human Rights art. 1, opened for signature Nov. 4, 1950, 5 E.T.S. 1; Bankovi6 v. Belgium, App. No. 52207/99, Eur. Ct. H.R. (Dec. 12, 2001), http://hudoc.echr.coe.int/eng?i=001-22099; Soering v. United Kingdom, App. No. 14038/88, Eur. Ct. H.R. (July 7, 1989), http://hudoc.echr.coe.int/eng?i=001-57619. 73 See International Covenant on Civil and Political Rights art. 2(1), adopted Dec. 19, 1966, 999 U.N.T.S 171 [hereinafter ICCPR]; Human Rights Comm. No. 196/1985, U.N. Doc. CCPR/C/OP/3, (Apr. 3, 1989). 74 Torture Convention, supra note 72; Comm. Against Torture No. 323/2007, U.N. Doc. CAT/C/41/D/323/2007 (2008); Comm. Against Torture, Consideration of Reports Submitted by Winter 2017] CONTRACTING OUT: NON-REFOULEMENT non-refoulement to "another State." 75 Although there is some inconsistency in these terms, they largely have a similar scope of application. Some treaties might apply to jurisdiction "or" territory, leaving us to conclude that the treaty must necessarily apply outside of the territory of the state. Other treaties might require jurisdiction "and" territory, 76 which might lead us to believe that they are limited to only that territory where the state exercises jurisdiction. But the usual 77 interpretation is to read the conjunctive prescription as disjunctive. The Human Rights Committee indeed interprets the provision to cover either territory or jurisdiction.7 8This jurisprudence has led to extensive litigation over extraterritorial application of these various conventions where a state 79 might have jurisdiction outside its lawful territory. The general approach is that "jurisdiction" is meant to be understood in public international law and is primarily territorial.80 On this basis, a state will not usually have jurisdiction within the territory of another state, although aliens presenting themselves at the border, and not yet effectively within a state's territory, are protected.8 1 Whether there is protection from refoulement from areas beyond States Parties Under Article 19 of the Convention, 25, 2006). 7 15, 20, U.N. Doc. CAT/C/USA/CO/2, (July 15See Torture Convention, supranote 72, art. 3(1). 76See ICCPR, supra note 73. 77See Gen. Comment No. 31, supra note 41. 6.8 (Jul. 284, U.N. Doc. 28, 1997); Human Rights Comm., Report of the Human Rights Committee, A/50/40 (Oct. 3, 1995); Human Rights Comm. No. 470/1991, U.N. Doc. CCPRIC/48[D/470/1991, 7 6.2 (Nov. 11, 1993); Human Rights Comm. No. 52/1979, U.N. Doc. CCPR/C/13[D/52/1979, 7 12.1-12.3 (July 29, 1981). 78See id.; Human Rights Comm. No. 692/1996, U.N. Doc. No. CCPRIC/60/D/692/1996, 79See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168, 7 179 (Dec. 19); Velasquez Rodriguez Case, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 172 (July 29, 1988); Bankovi6 v. Belgium, App. No. 52207/99, Eur. Ct. H.R. (Dec. 12, 2001), http://hudoc.echr.coe.int/engi=001-22099; Soering v. United Kingdom, App. No. 14038/88, Eur. Ct. H.R. (July 7, 1989), http://hudoc.echr.coe.int/eng?i=001-57619; Gen. Comment No. 31, supra note 41; Human Rights Comm. No. 414/1990, U.N. Doc. CCPR/C/51[D/414/1990, 7 6 (Mar. 29, 51 (Aug. 10, 1994); Human Rights Comm. No. 110/1981, U.N. Doec. No. A/39/40, 1984); Human Rights Comm. No. 25/1978, U.N. Doe. A/37/40, (July 26, 1982). 80 See Sargsyan v. Azerbaijan, App. No. 40167/06, Eur. Ct. H.R. 7 12 (June 16, 2015), http://hudoc.echr.coe.intleng?i=001-155662); Jamaa v. Italy, App. No. 27765/09, Eur. Ct. H.R., 7 75 (Feb. 23, 2012), http://hudoc.echr.coe.int/eng?i=001-109231; Djokaba Lambi Longa v. 2012), 9, (Oct. 69 7 H.R., Ct. Eur. 33917/12, No. App. Netherlands, 6 http://hudoc.echr.coe.int/eng?i=001-11405 ; Assanidze v. Georgia, App. No. 71503/01, Eur. Ct. H.R. 137 (Apr. 8, 2004), http://hudoc.echr.coe.int/eng?i=001-61875; Ila~cu v. Moldova, App. No. 886 ; 48787/99, Eur. Ct. H.R., 7 312 (July 8, 2004), http://hudoc.echr.coe.int/eng?i=001-61 20 (May 14, Gentilhomme v. France, App. Nos. 48205/99, 48207/99, 48209/99, Eur. Ct. H.R., 2002), http:/fhudoc.echr.coe.int/eng?i=001-60454; Bankovi6 v. Belgium, App. No. 52207/99, Eur. Ct. H.R. (Dec. 12, 2001), http://hudoc.echr.coe.int/engi=001-22099; Human Rights Comm. No. 13.3 (Mar. 25, 2010). 1246/2004, U.N. Doec. CCPRIC/98/D/1246/2004, See OAU Convention, supra note 39; Cartagena Declaration, supra note 39; Convention Relating to the International Status of Refugees art. 3, CLIX L.N.T.S. 3663 (1933); Sale v. 81 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 the border, such as interdiction efforts on the high seas, remains more controversial.8 2 Certainly there are cases where a state exercises some control over territory, 83 or state officials outside the state,8 4 sufficient to result in socalled jurisdiction. However, the general trend in the case law is that extraterritorial exercise of control sufficient to result in jurisdiction was a question of power-not legal right.85 However, the ECtHR has applied different reasoning when the acts took place within a state's territory.8 6 Normally a state has jurisdiction over its territory, with few exceptions.8 7 The first exception is when the state Haitian Ctrs. Council, 509 U.S. 155 (1993); R v. Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1 (HL) (appeal taken from Eng.); Jamaa, App. No. 27765/09, 1 75; G.A. Res. 2312 (XXII), Declaration on Territorial Asylum, art. 3(1) (Dec. 14, 1967); High Comm'r for Refugees, Guidelines for National Refugee Legislation, with Commentary, U.N. Doc. HCRI120/41/80/GE.81-0013, § 6(2) (Dec. 9, 1980); U.N. High Comm'r for Refugees, Addendum to the Report of the United Nations High Commissioner for RefugeesAddendum to the Report of the United Nations High Commissioner for Refugees, Nos. 6, 15, 53 U.N. Doc. A/32/12/Add.1 (Oct. 31, 1977). 82 See Sale, 509 U.S. at 200 (Blackmun, J., dissenting); U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Sixteenth Meeting, U.N. Doc. A/CONF.2/SR.16, 6 (Nov. 23, 1951); CPCFv Minister for Immigration & BorderProt. (2015) 225 CLR 514 (Austl.); Jamaa, App. No. 27765/09 (concurring opinion of Pinto de Albuquerque, J.). See Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R. 77-78 (May 12, 2014), http://hudoc.echr.coe.int/eng?i=001-59454; Loizidou v. Turkey, App. No. 15318/89, Eur. Ct. H.R. 56 (Dec. 18, 1996), http://hudoc.echr.coe.int/eng?i=001-58007; Loizidou v. Turkey, App. No. 15318/89 (Preliminary Objections), 62 (Mar. 23, 1995), http://hudoc.echr.coe.int/engi=00157920. The International Court of Justice held practice is similar for the ICCPR and ICESR. In an advisory opinion, the International Court of Justice found that these treaties applied to Israel's extraterritorial actions in the occupied Palestinian territories. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (U.N. v. Isr.), Advisory Opinion, 2004 I.C.J. 136, 7 109-11 (July 9); see also Medvedyev v. France, App. No. 3394/03, Eur. Ct. H.R. (Mar. 29, 2010), http://hudoc.echr.coe.int/eng?i=001-97979; Jamaa, App. No. 27765/09, 74-75, 79-82; Issa v. Turkey, App. No. 31821/96, Eur. Ct. H.R. (Nov. 16, 2004), http://hudoc.echr.coe.int/eng?i=001-67460; Bankovi6, App. No. 52207/99; Comm. Against Torture No. 323/2007, supra note 74; Human Rights Comm. No. R.12/52, U.N. Doc. A/36/40, 65, (July 29, 1981); Gen. Comment No. 31, supra note 41. 83 84 See R v. Immigration Officer at Prague Airport [20041 UKHL 55, [2005] 2 AC 1 (appeal taken from Eng.); Jamaa, App. No. 27765/09; Haitian Ctr. for Human Rights v. United States, Case 10.675, Inter-Am. Comm'n H.R., Report No. 51/96, OEA/Ser.L/V/II.95, doc. 7 rev. 157 (Mar. 13, 1997); Human Rights Comm. No. 57/1979, U.N. Doc. CCPR/C/15/D/57/1979 (Mar. 23, 1982). See Geneva Convention art. 2; Jamaa, App. No. 27765/09, 73; Comm. Against Torture No. 323/2007, supra note 74; Gen. Comment 31, supra note 41. 86 See Ila~cu v. Moldova, App. No. 48787/99, Eur. Ct. H.R. 311 (2004), http://hudoc.echr.coe.int/eng?i=001-61886. 8I See id. T 311-13, 333-35, 8 (Bratza, J., dissenting); Vos v. Netherlands, U.N. Human Rights Comm., Commc'n No. 218/1986, U.N. Doc. CCPR/C/29/D/1986 (Apr. 8, 1987); E.M.E.H. v. France, U.N. Human Rights Comm., Commc'n No. 409/1990, 3.2, U.N. Doc. CCPR/C/40/D/409/1990 (Nov. 2, 1990); Koi v Portugal, U.N. Human Rights Comm., Commc'n No. 925/2000, 6.7, U.N. Doc. CCPR/C/73/D/925/2000 (Oct. 22, 2001); Munaf v Romania, U.N. Human Rights Comm., Commc'n No. 1539/2006, 14.2, U.N. Doc. CCPRIC/96/D/1539/2006 (Aug. 21, 2009); Sargsyan v. Azerbaijan, App. No. 40167/06, Eur. Ct. H.R. 1 128 (2015), http://hudoc.echr.coe.int/app/conversion/pdf/?Iibrary=ECHR&id=001-155662&filename=00187 Winter 2017] CONTRACTING OuT: NON-REFOULEMENT exempted the particular territory as a reservation to the human rights treaty, though this option is usually limited to dependent territories, not the metropolitan state.88 However, a state may not unilaterally make its territory 89 'international' and thus escape human rights obligations. If the human to be in presumed rights obligation applies to the state, then the state is 90 that means This control of its lawful territory and thus have jurisdiction. the that and there is a presumption that the human rights obligations apply 91 be can state is responsible for their implementation. This presumption its exercising from rebutted in several situations when the state is prevented 93 jurisdiction de facto. 92 This could be due to military occupation, acts95of war or rebellion, 94 or acts of a foreign state supporting a separatist region. Although in these cases, the presumption is not overcome if the state has 96 cooperated in its loss of control or exercise of jurisdiction, largely resembling the prohibition on declaring a state's territory foreign. There are also other cases of waiver of jurisdiction where jurisdiction was held to have been valid, 98 such as rules on state immunity 97 or international organizations immunity, as well as the allocation of jurisdiction under an international agreement. 155662.pdf; Assanidze v. Georgia, App. No. 71503/01, Eur. Ct. H.R. 7 http:/Ihudoc.echr.coe.int/eng?i=001-61875. 137-143 (2004), m See Sargsyan, App. No. 40167/06, N 128; Assanidze, App. No. 71503/01, 1 140. See Amuur v. France, App. No. 19776/92, 17 Eur. Ct. H.R. 523, 609 (1996), http://www.refworld.orglcases,ECHR,3ae6b76710.html; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Austl.); Jamaa, App. No. 27765/09 (Pinto de Albuquerque, J., concurring). 89 90 See Sargsyan, App. No. 40167/06, 1 128; Azemi v. Serbia, App. No. 11209/09, Eur. Ct. H.R. 139; 42 (2013), http://hudoc.echr.coe.int/eng?i=001-139052; Assanidze, App. No. 71503/01, Ila§cu, App. No. 48787/99, 1 313. 91 See Bankovi6 v. Belgium, App. No. 52207/99, Eur. Ct. H.R. 11 61, 67 (2001), http://opil.ouplaw.com/view/10.1093/law:ihrl/3273echrOl.case.1/law-ihrl-3273echr0l; Ila§cu, App. No. 48787/99, 312; Assanidze, App. No. 71503/01, 139. 42; lla cu, App. No. 92 See Sargsyan, App. No. 40167/06, 1 128; Azemi, App. No. 11209/09, 48787/99, 312; Z. v. United Kingdom, App. No. 29392/95, Eur. Ct. H.R. 73 (2001). 78 (2014), 93 See Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-59454; Ila~cu, App. No. 48787/99, 1 312; Loizidou v. Turkey, 128; Ila~cu, App. App. No. 15318/89, Eur. Ct. H.R. 62 (1995); Sargsyan, App. No. 40167/06, No. 48787/99, 312. 94 See Sargsyan, App. No. 40167/06, 128; Ia~cu, App. No. 48787/99, 312. 95See Sargsyan, App. No. 40167/06, 128; Ila~cu, App. No. 48787/99, 312. 9 See Sargsyan, App. No. 40167/06, 1 128; lla~cu, App. No. 48787/99, 63. 69 (2012), 97 See Djokaba Lambi Longa v. Netherlands, App. No. 33917/12, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-114056; McElhinney v. Ireland, App. No. 31253/96, Eur. Ct. 38 (2001), http://www.bailii.org/eu/cases/ECHR/2001/763.html; AI-Adsani v. United H.R. (2001), 56 H.R. Ct. Eur. 35763/97, No. App. Kingdom, Fogarty v. United Kingdom, App. No. http://www.refworld.org/cases,ECHR,3fe6c7b54.html; (2001), 38 H.R. Ct. Eur. 37112/97, http://www.equalrightstrust.org/ertdocumentbank//Fogarty%20v.%/20UK.pdf. 69; Waite v. Germany, App. No. 26083/94, 98 See Djokaba Lambi Longa, App. No. 33917/12, Eur. Ct. H.R. 67 (1997), http://freecases.eu/Doc/CourtAct/4528300. TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 The ECtHR has held that the NATO Status of Forces Agreement ("SOFA"), 99 the Anglo-Dutch agreement on the extraterritorial Scottish court in the Netherlands to prosecute the Lockerbie bombing, 100 and headquarters agreements between the International Criminal Tribunal for the former Yugoslavia ("ICTY")101 and the ICC,102 are all agreements that have effectively waived the jurisdiction of the Netherlands for purposes of the ECHR.103 Thus, while acts may occur on Dutch soil, the Netherlands does not have jurisdiction for purposes of human rights. This Article has some reservations with this line of cases. First it is unclear why the presumption can be overcome in these latter cases when normally cooperation with the displacing authority does not overcome the presumption. It is true that when a state implements decisions of an international organization, we generally presume that there is protection equivalent to the human rights obligation binding the state. 104 In this case, however, there is no decision of an international organization demanding that the Netherlands take a certain course of action. It was free to refuse to grant a headquarters agreement if it chose not to. Second, the ECtHR has held that a state may not enter into an agreement that permits it to avoid human rights obligations when it has jurisdiction.10 5 Third, the ECtHR has already held that the NATO SOFA allocation of jurisdiction does not mean that the ECHR ceases to apply entirely to the territorial state in relation to persons under the jurisdiction of the other military authority. In Shepherd v. Germany, the European Court of Justice applied European law to conclude that a soldier who deserted the U.S. army 106 was protected by European human rights law. The NATO SOFA quite clearly gives exclusive jurisdiction to the sending state over its military especially for prosecuting military 99 See Djokaba Lambi Longa, App. No. 33917/12, 70. 100See id. 101 See Gali6 v. Netherlands, App. No. 22617/07, Eur. Ct. H.R. 39 (2009), http://www.bailii.org/eu/cases/ECHR/2009/1106.html; Blagojevi6 v. Netherlands, App. No. 49032/07, Eur. Ct. H.R. 39 (2009), http://freecases.eu/Doc/CourtAct/4527824. 102 See Djokaba Lambi Longa, App. No. 33917/12, 71. Cf. Hess v. United Kingdom, App. No. 6231/73, Eur. Ct. H.R. (1975), https://hudoec.echr.coe.int/eng#{"languageisocode:["ENG''],"appno":[6231/73']}. Note that the precedent of the Hess case and the detention of Hess on German soil is not relevant to this article because Hess brought the case against the U.K., not Germany. The ECtHR held that Hess was outside of U.K. territory and the U.K. -U.S.-French-Soviet command structure was jointly administered, so the U.K. was not (solely) responsible. Potentially the decision might have been different if the detention was within U.K. territory and the presumption of jurisdiction applied. 104 See Bosphorus v. Ireland, App. No. 45036/98, Eur. Ct. H.R. 7 150-65 (2005), http://hudoc.echr.coe.int/eng?i=001-69564. 105 See generally Jamaa v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012), http://www.refworld.org/cases,ECHR,4f4507942.html.; Prince Hans-Adam II of Liechtenstein v. Germany, App. No. 42527/98, Eur. Ct. H.R. 47 (2001), http://hudoc.echr.coe.int/eng?i=00159591; Al-Saadoon & Mufdhi v. United Kingdom, App. No. 61498/08, Eur. Ct. H.R. 128 (2010), http://hudoc.echr.coe.int/eng?i=001-97575. 103 106 See Case C-472/13, Shepherd v. Germany, 2015 E.C.R. I. Winter 20171 CONTRACTING OUT: NON-REFOULEMENT crimes such as desertion. 10 7 Yet, the ECJ concluded that Germany must 10 8 This case is not isolated. extend human rights protections to the soldier. The Dutch Supreme Court took the same approach in Short v. Netherlands. The Court gave priority to the ECtHR over the NATO SOFA when a soldier was sought for extradition. 10 9 Last, the cases challenging the jurisdiction of the ICTY were seeking to review the legality of the tribunal's right of 110 and in any detention, not any action or omission by the Dutch authorities, event, the Netherlands was bound to comply by a U.N. Security Council Chapter VII Resolution creating the tribunal. For these reasons, this Article is reluctant to conclude that the Netherlands did not have jurisdiction over ICC witnesses present in its territory, claiming asylum, notwithstanding separate issues of the purpose of their stay and the authority of their detention. Even if we assumed that these agreements did effectively reallocate jurisdiction, the case law on the application of human rights obligations has concluded that the territorial state does not completely escape responsibility for human rights violations within its lawful territory even when it loses jurisdiction."' Even when there is military occupation, the territorial state still retains some overlapping jurisdiction; however, the duties on the territorial state are reduced to what the state can effectively do to attempt to ensure some enjoyment of human rights.11 2 The state is only required to take "diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention."1 13 These measures could go so far 11 4 or otherwise "assert or reas to include measures to "re-establish control" 107 See Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces art. VII, June 19, 1951, T.I.A.S. 2846, 199 U.N.T.S. 67. 108 See Short v. Netherlands, [1990] RvdW 343. 109See id. 13 (2009), 110 See Galik v. Netherlands, App. No. 22617/07, Eur. Ct. H.R. Blagojevi6 v. Netherlands, App. No. http://echr.ketse.com/doc/22617.07-en-20090609/view/; 6 9 49032/07, Eur. Ct. H.R. 21 (2009), http://echr.ketse.com/doc/49032.07-en-20090 0 /view/. 333 (2004), See Ila~cu v. Moldova, App. No. 48787/99, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-61886; Sargsyan v. Azerbaijan, App. No. 40167/06, Eur. 0Ct. 1 http:/Ihudoc.echr.coe.int/app/conversion/pdf/?library-ECHR&id=O (2015), 128 H.R. 155662&filename=001-155662.pdf. 128; fla~cu, App. No. 48787/99, 333. 112 See Sargsyan, App. No. 40167/06, 111 128; Mozer v. Moldova, 113Ila~cu, App. No. 48787/99, 333; see Sargsyan, App. No. 40167/06, http://hudoc.echr.coe.int/eng?i=001-161055; (2016), 97-98 Ct. H.R. Eur. 11138/10, App. No. 110 (2012), Catan v. Moldova, App. Nos. 43370/04, 8252/05 & 18454/06, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-114082; Z. v. United Kingdom, App. No. 29392/95, Eur. Ct. H.R. 73 (2001), http://hudoc.echr.coe.int/eng?i=001-59455. See also Nada v. Switzerland, App. No. 10593/08, Eur. Ct. H.R. 7 175-80, 195-96 (2012), http://hudoc.echr.coe.int/eng?i=001113118. 131. 114 Sargsyan, App. No. 40167/06, TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 assert its sovereignty,"'115 provided the measures are not "impossible or disproportionate."116 The state's obligations might also require it to seek aid from other states and international organizations to ensure the protection of human rights. 117 And certainly it fails in its residual human rights obligations when it cooperates with the displacing entity (state) that is violating human rights. 118 The ECtHR held in Azemi v. Serbia that Serbia was not responsible for ECHR violations that occurred in Kosovo due to attribution of the acts to the U.N. Mission in Kosovo ("UNMIK").119 However, this decision also hinged on the lack of any plausible action Serbia could have taken to address the human rights violations.1 20 The ECtHR recalled the need to examine whether the state had any "appropriate measures" it could still take and whether it had any power to ensure respect for human rights.121 In Kosovo, all Serbian military had left the territory and UNMIK assumed "all executive, legislative and judicial powers,"1 22 and Serbia did not support UNMIK in any way "militarily, economically, financially or politically." 1 23 Since the acts were not attributable to Serbia and Serbia had no "appropriate measures" that could have been taken to realize the ECHR, Serbia had no positive obligations in the matter. 24 While the Court made no mention of this fact in its reasoning, it did observe that a binding U.N. Security Council resolution established UNMIK.125 Thus, the case actually affirmed the analysis discussed in this section regarding the residual obligations on the territorial state. Returning to the ICC witness cases, the Netherlands has some overlapping or residual jurisdiction, and, accordingly, the ECHR applies obliging the Netherlands to take whatever steps it can to attempt to protect human rights. As a preliminary matter, the Netherlands ratified the ECHR on August 31, 1954, and did not enter a reservation to the application of the ECHR to any part or aspect of its European territory, or certain in favor of the ICC (which was not in existence at the time).1 26 Thus this Article 115 Id. Ila~cu, App. No. 48787/99, 332; see Gfindem v. Turkey, App. No. 23144/93, Eur. Ct. H.R. 43 (2000), http://hudoc.echr.coe.int/eng?i=001-58508; Mozer, App. No. 11138/10. 117 See Sargsyan, App. No. 40167/06, 128; fla~cu, App. No. 48787/99, 333. 116 118 See Ila~cu, App. No. 48787/99, 3 (Ress, J., dissenting). 119See Azemi v. Serbia, App. No. 11209/09, Eur. Ct. H.R. 42 (2013). 120 See id. 121See 122 7 42-47. id. 42. See id. 43. See id. 45. The Court also observed that Kosovo had become independent in the meantime, although it carefully avoided finding that it was a sovereign state. Id. 46. 123 124 See Azemi v. Serbia, App. No. 11209/09, Eur. Ct. H.R. 47. 125 Id. 126 See Letter from the Permanent Representative of the Netherlands (November 29, 1954) Winter 2017] CONTRACTING OUT: NON-REFOULEMENT presumes that the ECHR applies to the entirety of the Dutch state and to the persons in this case. The only way that this presumption could be rebutted is if the Netherlands is prevented de facto from exercising its jurisdiction. This conclusion assumes the fact that the Netherlands has cooperated in setting up a displaced jurisdictional regime does not factor into the analysis. Clearly the ICC situation is not equivalent to military occupation or the U.N. Security Council establishing UNMIK and is instead more akin to the NATO SOFA or ICTY situations. However, this Article, for now, ignores the criticism of the SOFA and ICTY cases, the situation of the ICC witnesses is quite different, since there is no real displacement of jurisdiction in regards to non-refoulement. The NATO SOFA, ICTY and prior ICC cases dealt with the displacing authority adopting measures that the territorial state would normally adopt, such as prosecution for crimes, detention of suspects, etc. In the case of the ICC witnesses, the ICC is not capable of incurring or honoring non-refoulement, as it has no territory, nor is it a state. The Netherlands should not even be able 127 for to argue the Bosphorus v. Ireland exception of equivalent protection, the same reason. In fact, if we consider the role the Netherlands plays in it is difficult to view the assisting the ICC to discharge its duties, 128 Netherlands as having no jurisdictionalrole. The Netherlands actually has a rather active and involved role in managing the ICC's operations and it retains jurisdiction accordingly. It is 129 and charged with responsibility and authority to protect the ICC premises 130 are ICC the of premises the While must make prison facilities available. 131 privileges, typical enjoy and Court, the of under the "control and authority" immunities and inviolability,1 32 the laws of the Netherlands apply on the premises 133 and the ICC must facilitate the enforcement of violations of (deposited with the Secretary General on 1 December 1955) (extending application to Suriname and the Netherlands Antilles); Letter from Permanent Representative of the Netherlands (December 24, 1954) (registered at the Secretariat General on 3 January 1986) (extending application to Aruba upon its new constitutional status with the Kingdom). 127 See [Mbodina Iribi] v. Staatssecretaris van Veiligheid en Justitie [St. Sec'y Security & Justice], Ruling 201310217/1/V1 (ECLI:NL:RVS:2014:2427) (Raad v. St. [Sup. Ct.], Neth., June 152-53 (2005). 27, 2014) 8.3; Bosphorus v. Ireland, App. No. 45036/98, Eur. Ct. H.R. See Press Release, Sec'y State John Kerry (Mar. 22, 2013), https://20096 2 2017.state.gov/secretary/remarks/2013/03/ 0655 .htm; Press Release, Nat'l Sec. Council (describing U.S. cooperation with the Dutch 2013) Spokesperson Caitlin Hayden (Mar. 22, Government for the transfer of Ntaganda from Rwanda to The Hague for ICC prosecution); Press Release, Assistant Sec'y of State for the bureau of Aft. Affairs Johnnie Carson, General Ntaganda at U.S. Embassy Kigali (Mar. 20, 2013). 129 See Headquarters Agreement between the International Criminal Court and the Host State, ICC-Neth., art. 7, Mar. 1, 2008, ICC- BD/04- 01- 08 [hereinafter Headquarters Agreement]. 128 13oSee id. 131 See id. art. 8(1). 132 See id. art. 5, 6. 133 See id. art. 8(2). TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 Dutch law committed within the premises. 134 Security matters are based on cooperation between the ICC and the Netherlands. 135 The Netherlands conducts transportation of persons in custody 136 and the ICC must "observe all security directives as agreed with the [Netherlands],"' 137 "taking into account the public order and national security of the [Netherlands]." 13 8 The ICC and the Netherlands also have mutual obligations of non-interference: the ICC has a duty not to interfere with the internal affairs of the Netherlands, 39 and the Netherlands must "allow the Court to perform its functions." 140 Of course, minor interference with the duties of an international organization does not amount to a violation of the organization's protections. Traffic regulations, vehicle registrations, taxes for services, and regulation of waste disposal all fall into this category. However, ignoring reasonable interference and focusing on the core ICC functions, the ICC is charged with the obligation of criminal prosecution. The only form of "jurisdiction" the Netherlands waived was thus jurisdiction "with regard to persons surrendered to the Court in accordance with Part 9 of the Statute, persons granted interim release or persons who appear before the Court voluntarily or pursuant to a summons, for any acts, omissions or convictions prior to the surrender, the transfer or the appearance before the Court ... *"141 According to Article 19 of the Rome Statute, the ICC's jurisdiction is merely "competence to deal with a criminal cause or matter under the Statute."142 This provision means that the only area where jurisdiction was waived was criminal prosecutions. Clearly, the Netherlands exercises a significant degree of control over the persons within its own territory and has merely agreed not to prosecute persons in the Netherlands for ICC matters. This marginal waiver of jurisdiction does not waive the Netherlands' jurisdiction over the large amount of other tasks mentioned above. Based on the Dutch Supreme Court's reasoning in the ICC witnesses cases, the Netherlands would be permitted to torture detained ICC persons in transit, provided that this treatment did not affect the ICC's ability to prosecute. Surely the Netherlands' jurisdiction over a nonrefoulement claim was not displaced in favor of an entity that could not 134 See Headquarters Agreement art. 34(1). 135 See id. art. 34(2). 136 See id. art. 44; [Mbodina Iribi] v. Staatssecretaris van Veiligheid en Justitie [St. Sec'y Security & Justice], Ruling 201310217/1/V1 (ECLI:NL:RVS:2014:2427) (Raad v. St. [Sup. Ct.], Neth., June 27, 2014) 8.4. 137 See Headquarters Agreement, supra note 129, art. 34(5). 138See 139 140 id. art. 34(2). See id. art. 34(3). See id. art. 46(1). 141See id. art. 51(1). See Prosecutor v. Dyilo, ICC-01/04-01/06 (OA4), Judgment, https://www.icc-cpi.int/CourtRecords/CR2007_01307.PDF. 142 24 (ICC Dec. 14, 2006), Winter 20171 CONTRACTING OUT: NON-REFOULEMENT comply with that very obligation. Even if we disagreed over whether the Netherlands retains jurisdiction over non-refoulement, one must still apply the ECtHR's jurisprudence (e.g. la~cu)143 and conclude that, at a minimum, the Netherlands retains residual jurisdiction, and must take all diplomatic, economic, judicial or other measures within its power in accordance with international law to secure to 1 44 and certainly not the applicants the "rights guaranteed by the Convention," undertake any acts that would themselves violate human rights. This obligation means, inter alia, that the Netherlands could not coordinate the expulsion and transport of persons within the scope of its duties to cooperate with the ICC, contrary to the obligation of non-refoulement. Unless this line of jurisprudence is reversed, it appears that a new exception to jurisdiction may be forming: the possibility to alter jurisdiction under the law to avoid the obligation of non-refoulement. Increasingly, states are pushing back against asylum seekers by extending state reach outside their territory and seeking to prevent these individuals from entering their jurisdiction. Even if non-refoulement were jus cogens, a state cannot be responsible for violating it if it never acquires jurisdiction over the person in the first place. This approach has been undertaken both in the interdiction of asylum seekers at sea, preventing vessels from entering the state's territorial waters, 145 and by setting up airport departure pre-clearance inspections abroad, preventing asylum seekers from boarding transportation. 146 The ICC witness cases create another alternative: delegating jurisdiction responsibility to an international organization within the state's territory. While the ECtHR has prohibited states from unilaterally designating their 147 territory as international and exempting it from jurisdiction, the Court has been facilitating the NATO SOFA, ICTY and ICC line of jurisprudence where a state might exempt its jurisdiction by international agreement. However, human rights treaties generally do not permit states to, either unilaterally or by agreement, restrict their jurisdiction for purposes of human rights protection. Therefore, while this Article would recommend reversing this line of cases, we can perhaps restrict their application to the very unique situation of the jurisdiction of an international criminal tribunal. 331 (2004), Ilacu v. Moldova, App. No. 48787/99, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-61886 (finding that jurisdiction and responsibility for human rights violations turns on whether the state has control over its territory). 143 See 144 See id. 145See Sale v. Haitian Ctrs. Council, 509 U.S. 155, 173 (1993). 4, [2005] 2 AC 1 (HL) See R. v. Immigration Officer at Prague Airport [2004] UKHL 55, (appeal taken from Eng.) (opinion of Bingham, J.). 147 See Amuur v. France, App. No. 19776/92, 17 Eur. Ct. H.R. 523, 609 (1996); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Austl.); Jamaa, App. No. 27765/09, Eur. Ct. H.R. (Pinto de Albuquerque, J., concurring). 146 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS IV. [Vol. 27:77 NORMATIVE CONFLICT The last method for evading non-refoulement by entering into international agreements is through the creation of conflicts of norms. For example, the Convention on the Civil Aspects of International Child Abduction ("Hague Convention") provides simplified rules on the return of abducted children, and it appears that non-refoulement has been abolished as independent grounds to resist expulsion. In fact, any claim for nonrefoulement must satisfy the Hague Convention conditions. Interestingly, the possible outcome of this conflict is that non-refoulement becomes subsidiary to the Hague Convention. There are a number of rules addressing treaty conflicts. First, one applies a strong presumption against conflict, and understands the international system as a harmonious legal order, 148 with the possibility that two treaties provide equivalent protection.149 In addition, we have the normal application of lex posterior150 and lex specialis.151 We also have jus cogens, but then that solution is really a question of norm invalidity, not mere non-application. 152 Although non-refoulement is arguably jus cogens, this Article assumes nonrefoulement is not jus cogens. If a person qualifies as refugee, then states may not "expel or return See Int'l Law Comm'n, Study Grp. of Int'l Law Comm'n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 7 37-43, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) (by Martti Koskenneimi); Right of Passage over Indian Territory (Port. v. India), Judgment, 1960 I.C.J. 6, 6 (Apr. 12); Jones v. Saudi Arabia [2006] UKHL 26, [2007] 1 A.C. 270 (appeal taken from Eng.); Prince Hans-Adam II of Liechtenstein v. Germany, App. No. 42527/98, Eur. Ct. H.R. (2001), http://hudoc.echr.coe.int/eng?i=001-59591; Maumousseau v. France, App. No. 39388/05, Eur. Ct. H.R. (2007), http://hudoc.echr.coe.int/eng?i=001-83823 (holding that the ECHR does not conflict with the Hague Convention on the Civil Aspects of International Child Abduction). 148 See M & Co. v. Germany, App. No. 13258/87, 64 Eur. Comm'n H.R. Dec. & Rep. 138 (1990); Waite v. Germany, App. No. 26083/94, Eur. Ct. H.R. (1999), http://hudoc.echr.coe.int/eng?i=00158912; Beer v. Germany, App. No. 28934/95, Eur. Ct. H.R. (1999), http://hudoc.echr.coe.int/eng?i=001-58299; Case C-145/04, Spain v. U.K., 2006 E.C.R. 1-7961, I 11-13, 81-89, 90-97; Bosphorus v. Ireland, App. No. 45036/98, Eur. Ct. H.R. (2005), http://hudoc.echr.coe.int/eng?i=001-69564; Case C-84/95, Bosphorus v. Minister for Transp., Energy & Commc'ns, Ir.,1996 E.C.R. 1-3978. 150See Vienna Convention on the Law of Treaties art. 30(4)(a), opened for signature May 23, 1969, 1155 U.N.T.S. 331; Rosalyn Higgins, A Babel of Judicial Voices? Ruminations from the Bench, 55 INT'L & COMP. L.Q. 791 (2006). 149 151See Case C-96/00, Rudolf Gabriel, 2002 E.C.R. 1-6384, 7 35-36, 59; Brannigan v. U.K., App. Nos. 14553/89, 14554/89, Eur. Ct. H. R. at 7 76 (1993), http://hudoc.echr.coe.intleng?i=001-57819; Panel Report, Brazil - Export Financing Programmefor Aircraft, 7 7.40, WT/DS46/R (Apr. 14, 1999). 152 See Vienna Convention on the Law of Treaties, supra note 150, art. 53, 64; OFFICE OF LEGAL AFFAIRS, CODIFICATION DIV., 23 REPORTS OF INTERNATIONAL ARBITRAL AWARDS, at 59, U.N. Doc. ST/LEG/RLAA/23, U.N. Sales No. E/F.04.V.15 (2004); Prosecutor. v. Furundiija, Case No. IT-9517/1-T, Judgment, 7[ 153-64 (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998) (discussing the fact that the prohibition against torture "[h]as [a]cquired the [s]tatus of [j]us [c]ogens."). Winter 2017] CONTRACTING OUT: NON-REFOULEMENT 153 The "in any manner ('refouler) a refugee.., in any manner whatsoever[.]" to cover all legal broadly whatsoever" language has been interpreted 154 In this way, classifications of expulsion, i.e., deportation and extradition. which is removal, to bar general non-refoulement should be 5viewed as a 15 situations. all applicable in The Hague Convention requires a state to return a child who was 156 wrongfully abducted back to the state from which the child was removed. The Hague Convention is a highly effective agreement to achieve the return of children and to protect their rights under, inter alia,the Convention on the Rights of the Child.157 This process is not a custody determination, but rather a restoration of the status quo before the abduction so that the custody 158 That being said, the petitioner for determination can be made by the state. The Office of the United Nations High Commissioner for Refugees, Introductory Note, in CONVENTION AND PROTOCOL RELATING TO THE STATUS OF REFUGEES (UNHCR 60th ed., 2010), http://www.unhcr.org/3b66c2aa10.pdf. 154 See id.; Inter-American Convention on Extradition, supra note 17, art. 6; Conseil d'Etat [CE][highest administrative court] Paris, Apr. 10, 1991, Rec. Lebon 110208; Bundesgericht [BGer] [Federal Supreme Court] Dec. 18, 1990, 1.A127/1990 (Switz.); Bundesgericht [BGer] 153 [Federal Supreme Court] Sep. 11, 1996, 122 ENTSCHEIDUNGEN DES SCHWEIZERISCHEN (Switz.); Case No. EMARK 2001/4, 2001, 373, 380-81 [BGE] BUNDESGERICHTS Asylrekurskommission (Switz.); Sir Elihu Lauterpacht QC & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR's GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION (Erika Feller et al. eds., 2003); T.I. v. U.K., App. No. 43844/98, Eur. Ct. H. R. (2000), http://www.refworld.org/cases,ECHR,3ae6b6dfc.html; U.N. Human Rights Comm., Views 49th Sess., Ng v. Can., Communication No. 469/1991, U.N. Doc. CCPPJC/49/D/469/1991 (1994); U.N. Human Rights Comm., Views 61st Sess., G.T. v. AustI., Communication No. 706/1996, U.N. Doc. CCPRC/C/61/D/706/1996 (1997); Modise v. Botswana, Communication 97/93, African (1997), H.P.R.] Comm'n [Afr. Rights Peoples' and Human on Commission 97 93 . -14ar/achpr28-97 93-14ar-eng.pdf. http://www.achpr.org/files/sessions/28th/comunications/ It appears that non-refoulement may also even cover situations of declaring diplomats persona non grata. 155 For comparative purposes, we might draw a parallel line to diplomatic immunity that can be a bar to extradition, even though that exception is not listed under most extradition treaties. See European Convention on Extradition, supra note 16, art. 3(2); Inter-American Convention on Extradition, supra note 17, art. 4(5); Executive Committee High Commissioner's Programme, 1980), 17, UNHCR (Oct. 16, Problems of Extradition Affecting Refugees No. http://www.unhcr.org/en-us/excom/exconc/3ae68c4423/problems-extradition-affectingrefugees.html; UNHCR, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PREPARATOIRES ANALYSED WITH A COMMENTARY BY DR. PAUL WEIS 341-42 (1990), http://www.unhcr.org/enus/protectionltravaux/4ca34be29/refugee-convention- 195 1-travaux-preparatoires-analysedcommentary-dr-paul.html. 156 See Hague Convention on the Civil Aspects of International Child Abduction, art. 1(a), Oct. 25, 1980, 1343 U.N.T.S 89 [hereinafter Hague Convention]; Abbott v. Abbott, 130 S. Ct. 1983, 1989 (2010); Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995). See, e.g., Comm. on the Rights of the Child, Consideration of Reports Submitted by States 48-49, U.N. Parties Under Article 44 of the Convention, Concluding Observations: Algeria, Doc. CRC/C/15/Add.269 (Oct. 12, 2005). 158 See Hague Convention, supra note 156, art. 1(b); Abbott, 130 S. Ct. at 1987.; England v. England, 234 F.3d 268, 271 (5th Cir. 2000); Journe, 911 F. Supp. at 46; Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp.2d 800, 809 (N.D. Iowa 2003) ('The Hague Convention is 157 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 the return of the child must show some custody rights in order to state a claim to return, 159 otherwise, the child was not wrongfully removed. 160 There are some exceptions that can block the child's return. 161 Two of them are relevant for non-refoulement when: (1) the child faces a grave risk of physical or psychological harm or an otherwise "intolerable situation,"162 or (2) return would violate fundamental principles of human rights and freedoms.16 3 These exceptions must be established by clear and convincing evidence 6 4 and be construed narrowly. 165 The latter exception is not truly an international law human rights protection. Rather, it is an opportunity for the state considering the return request to apply its domestic policy on human rights to block the return.1 66 Potentially, non-refoulement might fit within that category. However, that approach has not been adopted in practice, so this Article focuses on the first exception. Examining the grave risk exception, although the Hague Convention is intended to promote the best interests of the child,16 7 this exception is not intended to provide an opportunity to re-litigate the child's best interests.168 The idea is that the exception should be very limited and "interpreted in a restrictive fashion."169 Under U.S. jurisprudence, intolerable situations have included post-traumatic stress disorder for the child1 70 and physical or sexual intended to restore the status quo ante and 'to deter parents from crossing international boundaries in search of a more sympathetic court."') (quoting Silverman v. Silverman, 267 F.3d 788, 791-92 (8th Cir. 2001). 159 See Hague Convention, supra note 156, art. 3; Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). 16 See 22 U.S.C. § 9003(e)(1)(A) (2012). 161 See Hague Convention, supra note 156, arts. 13(b), 20. 162 See id. art 13(b). 163 See id. art. 20. 164 See 22 U.S.C. § 9003(e)(2) (2017) ("In the case of an action for the return of a child, a respondent who opposes the return of a child has the burden of establishing-(A) by clear and convincing evidence ....");England, 234 F.3d at 270 ("[A] party opposing a child's return [must] prove the existence of such a grave risk by clear and convincing evidence.") (citing 42 U.S.C. § 11603(e)(2)(A) (1994), now 22 U.S.C. § 9003(e)(2)(A) (2012)). 165 McManus v. McManus, 354 F. Supp. 2d 62, 68 (D. Mass. 2005) ("[E]xceptions to the general rule of expedient return ... are to be construed narrowly.") (quoting Danaipour v. McLarey, 286 F.3d 1, 14 (1st Cir. 2002). 166 See Hague Convention, supra note 156, art. 20. id., at preamble. 167See 168 See Krefter v. Wills, 623 F. Supp. 2d 125, 135 (D. Mass. 2009) ("[T]his exception 'may not be used "as a vehicle to litigate (or relitigate) the child's best interests.""' (quoting Danaipour v. McLarey, 286 F.3d 1, 14 (1st Cir. 2002))); see also A. E. Anton, The Hague Convention on InternationalChild Abduction, 30 INT'L & COMP. L.Q. 537, 553 (1981). 169 Elisa P6rez-Vera, ExplanatoryReport: On the 1980 Child Abduction Convention, in ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION CHILD ABDUCTION 426, 434 (1980). 170 Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001). Winter 20171 CONTRACTING OuT: NON-REFOULEMENT 172 but the abuse of the child 171 (especially when the police are ineffective), corporal or mistreatment of abuse must rise above minor instances punishment. 173 Serious abuse of the other parent, though, can be considered mistreatment of the child. 174 A parent's alcoholism alone is not an intolerable situation. 75 In addition, the mere fact that the child will be separated from 176 nor are generally extended family in the other state is not determinative, of some degree of risk minimal or state poor economic conditions in the other 77 be established must risk grave the again, violence in that state. And, once 178 evidence. convincing and by clear If a child enjoys non-refoulement, the question is how to address the possible norm conflict with an order to be returned from abduction. There are 171 See generally Simcox v. Simcox, 511 F.3d 594, 600 (6th Cir. 2007); see also Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th Cir. 2005); Kufner v. Kufner, 519 F.3d 33, 37 (1st Cir. 2008). 172 In re Application of Ariel Adan, 437 F.3d 381, 397 (3d Cir. 2006); Flynn v. Borders, 472 F. Supp. 2d 906, 913 (E.D. Ky. 2007). 173See Vale v. Avila, 538 F.3d 581, 587 (7th Cir. 2008) ("[T]he contested assertion that Vale once struck his son with a video-game cord, fell short of meeting this demanding burden."); Foster v. Foster, 654 F. Supp. 2d 348, 361 (W.D. Pa. 2009) (The spankings, name-calling and physical discipline described by Respondent . .. 'w[ere] insufficient to establish a grave risk of [physical] harm .. "'(quoting Simcox v. Simcox, 511 F.3d 594, 609 (6th Cir. 2007))); Lopez v. Alcala, 547 F. Supp. 2d 1255, 1261-62 (M.D. Fla. 2008) (holding evidence of corporal punishment, absent certainty of immediate repetition and "objective evidence of serious abuse" did not establish an "intolerable situation"); see also Ngassa v. Mpafe, 488 F. Supp. 2d 514, 519-520 (D.Md. 2007) (holding that stepmother's occasional spankings with a flip-flop, never on bare skin, did not demonstrate a grave risk of physical or emotional harm). 174 See Miltiadous v. Tetervak, 686 F. Supp. 2d 544, 554 (E.D. Pa. 2010) ('"espondent's evidence of spousal abuse compels a finding that the grave risk of harm affirmative defense applies here."); see also In re Adan, 437 F.3d 381, 396 n.6 (3d Cir. 2006) (noting that the abuse of the child's mother was relevant). 175 See Trudrung v. Trudrung, 686 F. Supp. 2d 570, 576 (M.D.N.C. 2010) ('While the evidence of alcohol use is a concern and is not to be disregarded, the court finds no evidence that Petitioner struck E.T. (or anyone else for that matter) or that E.T. fears harm from Petitioner."). See Freier v. Freier, 969 F. Supp. 436, 442, 445 (E.D. Mich. 1996) (holding that the children must be returned to Israel despite the distance from their extended family in Michigan). 177 See Lynch v. Lynch, 220 F. Supp. 2d 1347, 1364-65 (M.D. Fla. 2002) ("The United States Department of State has stated that an 'intolerable situation' under Article 13b was not intended to encompass situations such as return to a home where money is in short supply, or where educational or other opportunities are more limited than in the new country."); see also Freier, 969 F. Supp. at 443 (holding that the unrest in Israel was not the scale contemplated by the Sixth Circuit and noting that "that although military presence was increased, schools and shops "). were not closed .... 178 See Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010); see also Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1116 (D. Colo. 2008); Lopez, 547 F.Supp.2d at 1258. A further complication is that asylum or refugee claims are generally treated in confidence, so a parent petitioning for return under the Hague Convention might not have access to the asylum or refugee claim to rebut it. See, e.g., Gov't of Isr., HAGUE CONF. ON PRIVATE INT'L LAW, Questionnaire Concerning the Practice Operations of The Hague Convention of 25 October 1980 on the Civil Aspects of the Delegation of Israel, (2006), International Child Abduction, Response by http://www.hcch.net/upload/abd_2006_il.pdf. 176 TRANSNATIONAL LA W & CONTEMPORARY PROBLEMS [Vol. 27:77 two possibilities. First, the recognition of non-refoulement and the considerations underlying the non-refoulement protection can be part of an analysis of the physical or psychological harm, or intolerable situation under the Hague Convention.179 Second, non-refoulement can be a separate and distinct obligation independent of the Hague Convention that must also be satisfied to order return of the child. Some grounds of non-refoulement might very clearly trigger the Hague Convention exceptions, for example Female Genital Mutilation ("FGM").18 0 We must consider the relationship between these two obligations where the claim might not clearly trigger the exceptions. The question is whether the Hague Convention presents us with a treaty that has effectively contracted out of non-refoulement protections. The Hague Convention does not specifically provide an exception for a situation where the child is granted asylum and thus enjoys the protection of non-refoulement (or the child's custodial parent receives asylum, and the child receives a derivative grant of asylum). United States practice is that an asylum grant, or refugee status determination, cannot satisfy the Hague Convention exception because the standard of proof for asylum or refuge is lower than the higher standard of proof in the Hague Convention.81 Thus, the United States believes that, for purposes of the Hague Convention, a grant of asylum must fit within the exceptions listed above-most likely the grave risk of physical or psychological harm or an intolerable situation-and not that non-refoulement protection is a separate and independent protection.182 A few other states party to the Hague Convention have also faced a conflict between non-refoulement and the Hague obligation to return the child, although the practice is not widespread. The Court of Appeal in the U.K. has concluded that the exception for harm or intolerable situation articulates a general principle of welfare of the child.18 3 While it has largely avoided the question of direct norm conflict, the Court of Appeal in obiter dicta has expressed the view that a court considering a return request "pay very careful attention to any credible suggestion" of persecution.18 4 In the 179 See Hague Convention, supra note 156, art. 13(b). 180See In re Kasinga, 21 I. & N. Dec. 357, 368 (BIA 1996) ("The applicant has a well-founded fear of persecution in the form of FGM if returned to Togo."). 181 See Gov't of the U.S., HAGUE CONF. ON PRIVATE INT'L LAW, Questionnaire Concerning the Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Response by the Delegation of the U.S. (2006), http://www.hcch.net/upload/abd-2006_us.pdf. 182 See Hague Convention, supra note 156, art. 13(b). See Re P (Child Abduction: Non-Convention Country) [19971 Fam 45, sub nom Re P (Abduction: Non-Convention Country) [1997] 1 FLR 780 56, 789D-E (Ward LJ) (Eng.); Re H (Child Abduction: Mother's Asylum) [20031 EWHC (Fam) 1820 (Wilson J) (Eng.); Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 at 488 (Thorpe LJ) (Eng.). 184 Interestingly, in some cases courts have entertained undertakings by the other parent that abuse would not occur as a way to mitigate the risk of mistreatment. See generally Re H (Child 183 Winter 2017] CONTRACTING OUT: NON-REFOULEMENT Netherlands, risk of similar mistreatment is considered within the context of the Hague Convention exception and has satisfied that provision in the past.18 5 In Serbia, the courts have not faced this issue, but the Serbian Government has at least expressed the view that the Hague Convention would be applied regardless of asylum/refugee status, which suggests that the basis for non-refoulement would also need to satisfy the Hague 18 6 Convention exception. Unlike in extradition law, this approach to norm conflict does not treat non-refoulement as an independent basis for protection, but there are potentially opposing views. In claims by an Israeli parent for the return of its children to Israel, the Israeli authorities expressed the view that the body hearing the refugee claim should receive the Hague Convention dossier 18 7 Israel has because of evidentiary concerns in the refugee process. commented on its experience with Canada, though Canada itself has refrained from commenting. From this report, it appears that Canada would give priority to non-refoulement over a child return order, but only because the refugee status determination is a federal issue that supersedes a provincial Hague return order.188 The ECtHR has clearly stated that the Hague Convention must be applied in accordance with principles of international law, including human rights.1 8 9 This conclusion means that interpretation and application of the Hague Convention must be in conformity with the ECHR.19° After all, a State cannot enter treaties that 191 For example, in Morfis v. contract out of obligations under the ECHR. France,the ECtHR found that a State might need to refuse to enforce a valid Abduction: Mother's Asylum) [2003] EWHC (Fam) 1820 (Wilson J) (Eng.); Re M (Abduction: Undertakings) [1995] 1 FLR 1021 (Eng.); F. v. M. (Abduction: Grave Risk of Harm) [20081 2 FLR 1263 (Eng.). 185 See generally Gov't of the Nether., HAGUE CONF. ON PRIVATE INT'L LAW, Questionnaire Concerning the Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of InternationalChild Abduction, Response by the Delegation of the Netherlands (2006), http://www.hcch.net/upload/abd_2006-nl.pdf. 186See Gov't of Serb., Questionnaireconcerning the practicaloperationof the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Response by the Delegation of Serbia (2006), http://www.hcch.net/upload/abduct201 lserl.doc. 187See Gov't of Isr., supra note 178. 188See id. 55 (2001), v. United Kingdom, App. No. 35763/97, Eur. Ct. H.R. & 35532/97 34044/96, No. App. Germany, v. Streletz http://hudoc.echr.coe.int/eng?i=001-59885; 44801/98, Eur. Ct. H.R. 90 (2001), http://hudoc.echr.coe.int/eng?i=001-59353. 81 (2005), 190 See Monory v. Romania, App. No. 71099/01, Eur. Ct. H.R. http://hudoc.echr.coe.int/eng?i=001-68713. 129 (2012), 27765/09, Eur. Ct. H.R. 191 See Jamaa v Italy, App. No. http://hudoc.echr.coe.int/eng?i=001-109231; A1-Saadoon v. United Kingdom, App. No. 61498/08, 128 (2010), http:/Jhudoc.echr.coe.intleng?i=001-97575; Prince Hans-Adam II of Eur. Ct. H.R. 47 (2001), Ct. H.R. 42527/98, Eur. v. Germany, App. No. Liechtenstein http:/fhudoc.echr.coe.int/eng?i=001-59591. 189 See A1-Adsani TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 27:77 Hague Convention return order in certain circumstances. 192 The courts in New Zealand have indicated support for the ECtHR approach 193 and have stated that a Hague Convention request would have no bearing on an independent asylum request.194 Initially, U.S. courts did not consider immigration status when assessing Hague Convention claims at all.1 95 That position is wavering-at least two circuits have indicated that immigration status should be considered in 96 assessing Hague Convention petitions.1 In one case, Sanchez v. R.G.L., three children were brought by their aunt and uncle to the U.S. border. Here they claimed protection on behalf of the children on the basis that the mother's boyfriend was a drug dealer and the children were at risk of drug related violence.19 7 The mother claimed that the children had been "kidnapped"198 and sought their return under the Hague Convention. However, United States Citizenship and Immigration Services ("USCIS") approved the children's request for asylum. 199 Although it is unclear whether USCIS had access to more information regarding the risks to the children than did the other adjudicating bodies. The Fifth Circuit, however, analyzed the asylum grant to determine whether it qualified under the Hague Convention exception for risk of harm. 20 0 First, the Fifth Circuit held that the grant of asylum, being discretionary and binding on the Attorney General or Secretary of Homeland Security, does not provide an individual right to remain in the United States.201 Thus, the grant of asylum does not conflict with an order for return under the Hague Convention. 202 This finding is problematic because while the 192 Morfis v. France, App. No. 10978/04, Eur. Ct. H.R. (2007). 193See Butler v. Craig [2008] NZCA 198, [2008] 28 FRNZ 112, [57] (N.Z.). 194 See NEW ZEALAND MINISTRY OF JUSTICE, RESPONSE TO THE QUESTIONNAIRE CONCERNING THE PRACTICAL OPERATION OF THE HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND OF ACCESS/CONTACT ORDERS 9, 16 (2006), http://www.hcch.net/upload/abd_2006_nz.pdf. 191 See Mozes v. Mozes, 239 F.3d 1067, 1082 (9th Cir. 2001); Lopez v. Alcala, 547 F. Supp. 2d 1255, 1260 (M.D. Fla. 2008); Arguelles v. Vasquez, No. 08-2030-CM, 2008 WL 913325, 1, 32-35 (D. Kan. Mar. 17, 2008). 196 See In re B. DEL C.S.B., 559 F.3d 999, 1001-02 (9th Cir. 2009) ("To decide this issue, we must consider a question of first impression in our circuit: whether a court may find that a child is not 'settled' for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status."). See generally Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014). 197 See Sanchez, 761 F.3d at 499-502. 198 Id. at 500. 199 Id. at 501. 200 Id. at 502-11. 201 Id. 202 See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173 (1993). Winter 2017] CONTRACTING OUT: NON-REFOULEMENT 20 3 whether an individual grant of asylum under domestic law is discretionary, benefits from non-refoulement due to a risk of mistreatment is a fact not dependent on discretion. Second, the Court held that the mere finding of risk 2°4 of persecution at a lower evidentiary level of preponderance of the evidence did not necessarily satisfy the higher level of proof (clear and convincing evidence) under the Hague Convention that the child would be exposed to harm. 205 Again, the difficulty here is that facts supporting the grant of asylum must also satisfy the requirements of the Hague Convention, as opposed to establishing a separate ground for refusal to execute the return order. The problem with the United States' analysis is that, while it does seek to reach a harmonious interpretation, it does so by finding that the Hague Convention grants equivalent protection as asylum law. Again, this Article assumes that non-refoulement is not jus cogens. However, even if it is not a jus cogens norm, it is still a non-derogable treaty obligation (other than the specific cases listed in the various treaties as exceptions, and for torture, no derogations). While lex posterior would favor the Hague Convention, the two treaties do not operate at the same level of specificity. In fact, it is very clear that non-refoulement applies to any form of expulsion or return. The better view is to solve this conflict in the same way that expulsion, extradition, and deportation conflict is solved. The Hague Convention provides a legal basis for validly ordering return (with its own exceptions), and non-refoulement provides a legal basis for blocking valid orders of return. There is a possibility that the United States may eventually adopt this interpretation. In one unpublished case, a California court refused a Hague Convention request due to allegations of spousal abuse and because the 20 6 victim-spouse had received domestic violence asylum in the United States. Notwithstanding this unpublished case, it appears that at least some authorities interpret the Hague Convention as creating a treaty conflict with non-refoulement obligations, and are resolving the conflict in favor of return. 207 First, they are not viewing non-refoulement as a separate and distinct ground to resist expulsion, and are demanding that the Hague Convention cover the situation exclusively. This interpretation is not the only solution for norm conflict, but to date, U.S. courts are permitting the United States to enter a treaty, in this case the Hague Convention-that abolishes 203 See 8 U.S.C. § 1158 (2012). 204 See Sanchez, 761 F.3d at 510; 8 C.F.R. §§ 1208.13(a)-(b)(1)(i) (2016). 205 See 22 U.S.C. § 9003(e)(2) (2012); Sanchez, 761 F.3d at 511. Kasinga, 21 I. & N. Dec. 357, (BIA June 13, 1996) (Interim Dec.); see also Julia Alanen, When Human Rights Conflict: Mediating InternationalParental Kidnapping Disputes Involving the Domestic Violence Defense, 40 U. MIAMI INTER-AM. L. REV. 49, 73-74 (2008) (explaining that allegations of domestic violence often serve to dampen the strength of Hague Convention claims for return of abducted children). 207 See supra notes 173-78 and accompanying text (discussing when a child will and will not be 206 able to use non-refoulement). TRANSNATIONAL LAW & CONTEMPORARYPROBLEMS [Vol. 27:77 non-refoulement for a certain class of persons. V. CONCLUSION This Article has identified three ways that international agreements are undermining or evading the non-refoulement obligation by either changing the underlying facts, displacing jurisdiction, or presenting outright norm conflict. Non-refoulement arises in connection with a variety of human rights obligations ranging from protecting individuals from persecution to torture, to a number of other cases where the person risks being severely mistreated in his or her state of origin. This rule exists under conventional and customary international law. While this Article does not endorse it, some authorities have argued that non-refoulement is a jus cogens rule of international law. However, despite this strong protection, states are agreeing among themselves to avoid non-refoulement and return individuals to dangerous situations. The first technique these states are applying is to use diplomatic assurances or even a binding treaty to pledge that the person will not be mistreated. While it remains unclear what the precise legal effect of an assurance would be, insofar as these instruments do have a legal effect, those obligations may either entirely preclude factual investigation into risk, or contribute in a significant way to the assessment of the fact of risk. As such, the agreements may impact whether there is a risk, and thus whether there is non-refoulement. The second approach states use is agreeing on jurisdiction, for example, by using a Headquarters Agreement with an international organization or SOFA with a foreign state. Human rights law generally applies a control theory of jurisdiction, but in the emerging practice of human rights bodies, it does not appear to be applying their jurisprudence consistently. This practice means that states can effectively use international agreements to manipulate their human rights jurisdiction and avoid incurring the non- refoulement obligation, even in the state's territory. The final method that states are using to evade non-refoulement is adopting treaties that create direct normative conflict. For example, the Hague Convention demands the prompt return of abducted children and, more importantly, may possibly exclude independent assessment of the case for non-refoulement. Instead, persons may only resist return if they can satisfy the Hague Convention exceptions exclusively. Given the long-standing interpretation that non-refoulement is a method to resist any form of expulsion, this practice under the Hague Convention appears incorrect. However, until it is corrected, it seems that abducted children may have lost their option to be considered for non-refoulement under the Refugee Convention, Torture Convention, International Covenant on Civil and Political Rights, and others. This Article argues that these emerging practices violate what is intended to be a fundamental humanitarian protection of non-refoulement. Winter 2017] CONTRACTING OUT: NON-REFOULEMENT 107 Perhaps the instruments that prescribed non-refoulement are outdated, or perhaps the world is suffering non-refoulement fatigue due to mounting refugee crisis pressure. This Article presumes that these effects are not the result of bad faith on the part of states, but rather are unintended consequences of good intentions. Regardless, this developing practice permits states to avoid non-refoulement by entering into agreements on facts, jurisdiction, or norms that undermine this human rights protection.

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