GROUP 5

GLOBAL FORCED
MIGRATION
GROUP MEMBERS
1.BRUNO MASINA BSOC-LE-ME-28-19
2. SOKALAWO MHONE BSOC-LE-ME-02-19
3.JOHN STIMA BSOC-LE-ME-09-19
4. DALITSO MVULA BSOC-LE-18-19
5.HERBERT STIMA BSOC-LE-ME-40-19
6.JONES CHIDOTHI
7. PETER DAVIS
MIGRANTS RIGHTS AND STATE
SOVEREIGNTY
DEFINING HUMAN RIGHTS AND STATE
SOVEREIGNTY
• Human rights are rights that people are entitled to by the virtue of being
human.
• State sovereignty is the absolute power, and autonomy that comes with being
a state.
• The very definition of sovereignty entitles states to non-intervention in
their domestic affairs. The idea of Universal Human Rights and the
protection of an individual within a state would appear to come into
direct conflict with this very definition. As such, International Human
Rights obligations are regularly seen as “eroding state sovereignty”
(Ayoob, 2001:93).
• The United Nations Declaration states that a nations action, its laws
and all it is should mirror the standards set out in the UDHR.
• Article 2 of the Declaration states, “without distinction of any kind,
such as race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status” (Article 2,
Universal Declaration of Human Rights, 1948). The clear, universal
standards set out in the Declaration go above and beyond any of the
consenting states domestic
• The Haitian Centre for Human Rights et al. v. United States. In this case, the applicants challenged
the lawfulness of the US policy to interdict on the high seas and forcibly return Haitians without
properly investigating individual claims for asylum. In its findings, the IACommHR stressed that the
prohibition of return as stipulated in Article 33 of the 1951 Geneva Convention has “no geographical
limitations”; hence it extended to the US interdiction programme on the high seas. Moreover, the
IACommHR found that the US was in breach of its obligations under the American Declaration of the
Rights and Duties of Man and in particular its obligation to protect the life, liberty and security of any
person. This was particularly so as a result of interdiction which in some instances led to the sinking
of interdicted boats and the drowning of Haitians, as well as to returning interdicted Haitians to
another jurisdiction where they were subjected to serious human rights abuses. Notably, the
IACommHR found that the act of interdiction of vessels on the high seas was a violation of the right
to liberty. The emphasis placed by the IACommHR on “the act of interdiction” provides compelling
evidence that jurisdiction is extended and assumed even if the individuals concerned have not
boarded the vessels of another state ( European Journal of Migration Law ,2007)
•.
• The cases above are significant as they establish that human rights
obligations extend extraterritorially. This entails both a state’s duty to
respect human life, i.e. not to directly cause the death of migrants when
forcibly interdicting them at (high) sea(s), as well as the duty to protect
by abstaining from non-refoulement practices at (high) sea(s) that will
expose migrants to risks. This has also been stressed by the
Parliamentary Assembly of the Council of Europe, which made clear that
international human rights law and refugee law, such as the principle of
non-refoulement, extend also to the high seas. Thus, apart from the law
of the sea, human rights law also establishes a duty for states to protect
human life at (high) sea(s)(Oxford University Press, Oxford, 2008) 
•  In Hirsi Jamaa and others v. Italy, the applicants, 11 Somali nationals and 13
Eritrean nationals were on board three vessels that departed from Libya and
were headed to Lampedusa. When the vessels were still within the Maltese
search and rescue area of responsibility, they were intercepted by the Italian
authorities. All the migrants were transferred into Italian military vessels and
returned to Libya in the light of bilateral agreements. According to the
Council of Europe’s Committee for the Prevention of Torture and Inhuman or
Degrading treatment or Punishment, Italy’s actions breached the principle of
non-refoulement “wherever it exercised its jurisdiction, which included via
its personnel and vessels engaged in border protection or rescue at sea,
even when operating outside its territory”.( International Journal of
Constitutional Law, 2015)
• In 2017 and 2018, President Trump’s administration has implemented immigration policies that
have caused catastrophic irreparable harm to thousands of people, have spurned and manifestly
violated both US and international law, and appeared to be aimed at the full dismantling of the
US asylum system.
• Those policies and practices have included, among others: (1) mass illegal pushbacks of asylum-
seekers at the US–Mexico border; (2) thousands of illegal family separations, through which the
Trump administration has deliberately and purposefully inflicted extreme suffering on families,
ill-treatment which rose to the level of torture in some cases; and (3) increasingly arbitrary and
indefinite detention of asylum-seekers, without parole, constituting cruel, inhuman or degrading
treatment or punishment (ill-treatment) which is absolutely prohibited in international law.
• Based on public statements by US government officials, those policies and practices were
indisputably intended to deter asylum-seekers from requesting protection in the United States,
as well as to punish and compel those who did seek protection to give up their asylum claims
•  Italy, on the other hand, denied that it exercised absolute and exclusive
control over the applicants, arguing that the duty under UNCLOS on rescuing
vessels in distress did not establish a jurisdictional link.The ECtHR ruled that,
since the applicants were on board Italian vessels, they were within the (de
jure) jurisdiction of the respondent state because “a vessel sailing on the
high seas is subject to the exclusive jurisdiction of the State of the flag it is
flying”. Whilst accepting that states have the right to control the entry,
residence and expulsion of non-nationals in their territory, this right is
subject to general international law and the European Convention on
Human Rights (ECHR). By returning the migrants to Libya, Italy exposed
them to the risk of forced repatriation as well as treatment prohibited under
Article 3 of the ECHR.
• These are not isolated aberrations. The US Department of Homeland Security (DHS) has
implemented these interrelated policies in unison: closing the borders to asylum-seekers, and
pushing them back into harm’s way; and making life so intolerable in immigration detention facilities,
that asylum-seekers would think twice before requesting protection in the United States.
• Fuelling these policies of cruelty with discriminatory and demonizing rhetoric, President Trump and
his cabinet members have routinely called asylum-seekers “criminals,” and denounced international
standards on refugee protection as legal “loopholes” and “magic words” that the administration has
professed its intention to abolish.
• The Trump administration is waging a deliberate campaign of human rights violations against asylum
seekers, in order to broadcast globally that the United States no longer welcomes refugees.
Simultaneously, the Trump administration is seeking to dismantle the US asylum system, including by
narrowing definitions of who qualifies for protection – in violation of international law. Setting a
dangerous precedent, the US government’s abrogation of its obligations under human rights and
refugee law is undermining the international framework for refugee protection, grossly violating the
right to seek asylum, and is inviting a race to the bottom by other countries
• The Norwegian cargo ship MV Tampa was refused entry to Australian waters after rescuing 438
people, mostly Afghan asylum seekers, from a distressed Indonesian fishing boat 140kms
northwest of Christmas Island. In defiance of the request by Australian authorities to return the
asylum seekers to Indonesia, Tampa captain Arne Rinnan declared a state of emergency and
entered Australian territory, anchoring just off the coast of Christmas Island where SAS troops
boarded the vessel. The crisis for the Australian Government, which insisted that no asylum
seeker on board the Tampa would set foot on Australian soil, was finally resolved through the
assistance of New Zealand and Nauru. Even though the Government's Border Protection Bill
2001, hastily tabled that day, was defeated in the Senate, the Tampa crisis was the catalyst for a
new border protection regime in Australia centring on the 'Pacific solution' whereby asylum
claims would be processed offshore. The Australian Government's handling of the Tampa crisis
garnered international criticism but was met with widespread approval at home. The Coalition's
focus on border protection and national security in the 2001 election campaign found real
popular purchase in the aftermath of Tampa and September 11 and Prime Minister John Howard
was comfortably returned to office for a third term
• T. Spijkerboer, ‘The Human Costs of Border Control’, 9 European
Journal of Migration Law (2007