A. Introduction: Topography and Migration Control
Since the end of the Cold War, migration control has emerged as the principal response of Global North states to refugees and irregular migrants.Footnote 1 Billions of dollars and euros are spent each year on border patrols, technological surveillance systems, warning campaigns, and international agreements to stop or deter migrants and refugees.Footnote 2 In Europe, the 2015 migrant and refugee protection crisis alone has prompted a tripling of the EU budgetallocated to border and migration management.Footnote 3 Meanwhile, the means and agreements through which these policies are implemented have become both more operationally sophisticated and legally complex;Footnote 4 and, though data collection in this area remains difficult, arguably also more brutal in their consequences for the refugees and irregular migrants affected.Footnote 5
The systematic lack of accountability pertaining to the spread of migration control and other deterrence measures has been contested by both scholars and practitioners. As Cathryn Costello recently noted, “lack of legal access to asylum for refugees has been perhaps the single most prominent topic in refugee studies for the past three decades.”Footnote 6 The legal discipline, in particular, has served as a laboratory for developing—and sometimes testing—principled challenges to deterrence and migration control policies.Footnote 7 While early scholarship tended to focus on the refugee law regime itself, more recent studies often adopt a broader human rights frameworkFootnote 8 or look to regional regimes such as EU law.Footnote 9 Similarly, as several other contributions to this Special Issue testify, a range of scholarship has developed that more directly explores particular accountability mechanisms and arguments in relation to specialized regimes at the domestic, regional, and international levels.
From a more practice-oriented perspective, successful litigation has, in several instances, forced governments to either abandon or substantially alter their policies.Footnote 10 The last decades have seen a remarkable increase in international case law concerning refugee and migrant rights in the context of migration control. The approach to migrant rights by judicial institutions, however, often remains ambivalent, and their role in this area has faced repeated criticism from prospective asylum states.Footnote 11 Moreover, the effect of successful litigation in regard to migration control and deterrence policies is often limited by successive policy developments specifically designed to eclipse existing precedent.Footnote 12 The result, as the editors to this Special Issue point out, is continued accountability gaps.Footnote 13 More fundamentally, constant evolution in terms of state practice means that migration lawyers are forced to play catch up, and today's legal challenges in this area are often at the vanguard of broader legal debates regarding transnational or shared responsibility.
In line with the editors, we believe that this is a particularly important time to reflect on the trajectory and current state of scholarship and practice in this area. More specifically, we argue that in order to break with this problematic dynamic between politics and law, we need not only to enhance existing avenues for accountability, but also to think about and open up new ways through which to challenge contemporary practices of migration control. The principal purpose of the present Article is thus methodological. It sets out the core tenets of what we call a “topographical approach” to accountability in migration control, explores its theoretical underpinnings, maps its contours, and suggests its application.
We have coined the term “topographical” to convey an approach in which the site of a violation is perceived from a bird's-eye view and accountability pursued through diverse legal regimes and via a broadened geographic lens. This mapping of overlapping liabilities helps bring attention to legal regimes, adjudicatory forums, and jurisdictions traditionally overlooked or less explored in the context of migration control. It also opens up a process through which multiple options may usefully be pursued simultaneously, creating mutually reinforcing inroads to accountability, that, if successful, makes it harder for deterrence states to simply adjust or adapt their policies to the latest legal precedent. In so doing, the topographical approach both draws on emerging tendencies in litigation practices and scholarship and envisions a coherent framework for accountability strategies going forward.
Our approach is aimed at the broad set of situations in which complex arrangements cloud questions of responsibility and liability, either by virtue of cooperation between states and other actors,Footnote 14 questions of extraterritoriality,Footnote 15 or a combination of both of these factors.Footnote 16 Accountability, in this context, refers to the adjudication of violations by judicial or quasijudicial bodies accessible to asylum seekers and refugees. In this sense, we are focused on legal accountability for breaches of human rights obligations. Nevertheless, we acknowledge that there are overlaps between legal and political forms of accountability, particularly where complaints take on a high public profile or take place in non-binding settings.Footnote 17 We take a deliberately broad view of remedies, concerned with legal reparation and redress for human rights breaches under a range of legal systems not limited to human rights or refugee law.Footnote 18 Thus, while the topographical approach is anchored in breaches of human rights law, it opens up remedies from diverse legal regimes and geographic regions.Footnote 19
The topographical approach does not claim to fill all accountability gaps for breaches of human rights in the course of migration control. Some violations in this context may ultimately remain beyond the pale of the law, leaving asylum seekers and refugees in a situation of de jure or de facto rightlessness.Footnote 20 The topographical approach, however, is an attempt to narrow the circumstances in which such rightlessness arises.
This Article proceeds in three sections. First, in Part B, we set out the theoretical underpinnings of a topographical approach, informed by insights from legal geography, as well as by literature on legal black holes and strategic litigation. Second, in Part C, we point to the application of the topographical approach in practice, drawing on existing examples and scholarship to map accountability across regimes and jurisdictions. Third, and finally, in Part D, we apply the topographical approach retrospectively with reference to one instantiation of migration control, namely Australia's regional processing center (RPC) on Manus Island, Papua New Guinea.
B. Assembling a Topographical Methodology
Topography is concerned with the study of creating maps.Footnote 21 More specifically, a topographical approach to law has been referred to within legal geography as attention to distinctions of legal space that “constrain what kinds of practices of statecraft can be applied to which kinds of spaces.”Footnote 22 A leading legal geography scholar, Nicholas Blomley, specifically refers to refugees in defining a “splice” as the entanglement of space and law.Footnote 23 To refugee and migration lawyers, these territorial strategies are all too familiar: Complex migration control practices present legal difficulties precisely because they challenge the stilldominant assumption of territorial jurisdiction and responsibility.Footnote 24
Within legal geography, topographical studies commonly focus on domestic settings, exploring tensions between, for example, public and private spaces,Footnote 25 and property rights.Footnote 26 Increasingly, however, legal geographers are turning their attention to transnational phenomena. Bruce D’Arcus, for example, invokes the “spatial architecture of law” to explain the use of extraordinary rendition in the course of the War on Terror.Footnote 27 The current use of “forensic architecture” as a method to produce evidence for use in juridical and political fora investigating violations is a further example of the application of spatial methods to human rights accountability.Footnote 28
In keeping with the “spatial turn” in legal theory,Footnote 29 a topographical approach draws from legal geography's focus on perceiving breaches of human rights law as a site.Footnote 30 In legal geography, investigation tends to be “from the site up,”Footnote 31 situating the point of departure in “mundane sites” rather than the text of the law.Footnote 32 The “site,” in our context, is both a place and a space.Footnote 33 It refers, in the first instance, to the geographical location(s) in which a violation, or more likely, a set of violations have occurred. It refers, in the second instance, to the normative structures that imbue these violations with legal meaning. The topography with which we are concerned is thus not one of geographical distinctions or physical proximity, but rather the national and transnational legal architecture that is established by linking violations to different legal frameworks and accountability mechanisms. How we, as lawyers, understand what violations have occurred and define responsibility invariably points back to our construction of this legal topography. Just as Bennett and Layard call on legal geographers to become “spatial detectives” by investigating how the law relates to physical places,Footnote 34 a topographical approach to accountability in migration control requires the charting of uncertain legal terrain where new accountability linkages may be established.
This reorientation has important implications for how to frame and approach accountability in regard to migration control practices. First, it suggests breaking with regime specific approaches, in which accountability is considered from a singular legal vantage point. The evolution of approaches to accountability for migration control suggests a particular trajectory, in which human rights law, and more recently general international law, has come to bolster interpretation within international refugee law as the core legal regime governing people on the move in need of protection. Recently, a group of scholars criticized what they consider to be a “refugee paradigm” within international law.Footnote 35 In its place, they call for a more “migrant-centered perspective” exploring the fragmented legal spaces beyond the Refugee Convention and including all levels of law, whether at the “international, regional, bilateral, transnational [or] national” level.Footnote 36
Second, a topographical approach requires us to critically reflect on and reassess our analytical outlook and presumptions. Scholars and advocates within this field—present authors included—often apply an implicitly horizontal perspective, seeking to stretch the reach of rights protections from a core towards the periphery. Terms such as “externalization,” “protection elsewhere,” “offshoring,” and “outsourcing” all place sponsoring states in the Global North at the center, notwithstanding the involvement of other states within this external dimension or simply elsewhere. This has the unfortunate side effect of excluding from view not only the concomitant responsibility of transit and origin countries, who are increasingly tasked with implementing migration controls, but also—and perhaps even more importantly—the accountability structures available within these jurisdictions.Footnote 37 In contrast, a topographical approach seeks to widen the lens of the inquiry to perceive the site from a bird's-eye view vantage point to take in the full set of legal and accountability architectures on offer.Footnote 38
As a second source of inspiration, the topographical approach draws on the study of rightlessness and legal black holes.Footnote 39 The concept of rightlessness, emerging from Arendt's seminal thesis, has spawned its own scholarship which does not need rehashing here.Footnote 40 In its essence, rightlessness refers to the state of unprotected legal status in which refugees often find themselves.Footnote 41 Rightlessness may be either de facto or de jure—what is decisive is a person's existence beyond the protection of the law.Footnote 42 Legal black holes refer to spaces of apparent rightlessness—classically, the use of Guantanamo Bay as a site of counterterrorism detention.Footnote 43 Of course, the metaphor of the legal black hole is also familiar to refugee lawyers, as extraterritorial migration control measures are seen to create—or expand—legal black holes, only to be extinguished—or at least contracted—by legal challenges.Footnote 44
Most recently, Itamar Mann has called for the development of a discipline of legal black holes within international law more broadly, as an agenda to “identify legal black holes; locate areas in which law renders humans rightless.”Footnote 45 We share this methodological call to map and locate legal sites, if not necessarily the theoretical premise of (un)accountability. The topographical mapping we seek to advance is concerned with highlighting and bringing into focus the broad array of legal avenues that provide migrants and refugees with potential remedies. It challenges us to reconsider existing designations of legal black holes by emphasizing alternative and additional accountability opportunities yet to be explored or rarely pursued. As we explore below—although considered a classical legal black hole by some—the Manus Island RPC has, in fact, been a heavily contested legal site, with attempts to challenge its operation across several legal arenas.Footnote 46 This kind of explorative strategy, pursuing multiple legal avenues for accountability across several jurisdictions, is well-known in other fields, including business and human rightsFootnote 47 and international criminal law.Footnote 48 With Agamben, we thus argue that rather than rightless spaces per se, the assembly of legal actions “divides them topologically like in a Leiden jar or Moebius strip” to blur boundaries and re-establish legal connections.Footnote 49
Third, and finally, the topographical approach draws on strands of literature on strategic litigation.Footnote 50 While the rise of strategic human rights or public interest litigation has attracted a fairly substantial body of scholarship,Footnote 51 strategic litigation on asylum and migration remains under-studied.Footnote 52 This is somewhat surprising given the robust practice of strategic litigation on refugee issues and the growing body of actors and networks dedicated to this issue.Footnote 53
The perhaps best-known example of academic work in this area is Harold Koh's program of transnational public law litigation seeking to “vindicate public rights and values through judicial remedies.”Footnote 54 Koh's thesis was put into practice in the Sale litigation on behalf of Haitian asylum seekers returned by U.S. authorities after the on-water screening.Footnote 55 One key commonality between transnational public litigation and the topographical approach pursued here is the focus on “strategic awareness of the transportability of those norms to other domestic and international fora for use in judicial interpretation or political bargaining.”Footnote 56 While Koh's approach was limited to courts in the United States, our approach is explicitly concerned with mapping potential norm transfer and application to less explored regimes and jurisdictions. Given the inequality of resources available, transnational public law litigation has been critiqued for indirectly driving further externalization and outsourcing of migration control,Footnote 57 leading to violations of rights “along the fault lines between developing and developed countries.”Footnote 58 Persistent—and seemingly massive—accountability gaps for violations in complex migration control settings appear to confirm this criticism. The topographical approach is thus an attempt to bridge these fault lines through a turn to less explored avenues of accountability in both Global North and Global South jurisdictions.
A final but important feature of the topographical approach is its invitation to explore multiple accountability avenues simultaneously. This is a point that may be met with resistance by some practitioners and scholars who argue that, in a world of finite resources, being strategic about litigation tends to come down to hard choices about the selection of cases, the choice of legal regime, and the forum in which to pursue them.Footnote 59 As we explore further in the following sections, however, there are several reasons why multipronged strategies may ultimately be more successful.
First, practical experience shows that it is often difficult to foresee not only legal outcomes, but also the wider real-life impacts of what we subsequently recognize as landmark decisions.Footnote 60 Adam Weiss, Managing Director of the European Roma Rights Centre, likens strategic cases to black swans, in that they cannot be anticipated:
You cannot design one perfect case that will deliver dramatic results. What makes a case strategic can only be seen in retrospect: it has produced an unpredictable outcome. If the case's outcome could be predicted, it would not be strategic; everybody would see it coming. A strategic litigator's job is not to design the perfect case, but to create a strategic litigative practice out of which these game-changing cases are likely to emerge.Footnote 61
In line with this, the topographical practice thus entails exploring a variety of cases, including “offbeat cases with open-ended positive potential.”Footnote 62 This does not mean that strategic thinking and resource questions remain unimportant. Certain fora may seem inherently more promising than others, just as migrants and their lawyers face very different, sometimes crippling, obstacles depending on the jurisdiction in which they attempt litigation. What it does mean is that our ability to correctly predict legal outcomes remains limited; past successes do not necessarily determine future outcomes, and strategic litigation projects may become subject to “lock-in effects” if training and experience are too narrowly focused.
Second, single-pronged strategies—focusing litigation on a particular court or body—are not only more vulnerable to general shifts in judicial practice, but an overload of cases may also in itself prompt reflexive effects in the form of political backlash or restrictive turns in interpretation.Footnote 63 As Wilde argues, non-refoulement and extraterritoriality cases are “at the heart” of current political debates around, for example, the European Convention on Human Rights and should prompt migration lawyers to carefully consider the wider risks of prima facie progressive judicial developments in terms of both the regimes in question and subsequent state responses further undermining migrant rights.Footnote 64 Distributing litigation efforts more evenly across different judicial bodies and legal regimes partly offsets these risks. Such distribution works by putting less pressure on individual legal institutions to take on a surrogate role in enforcing migrant rights,Footnote 65 and, crucially, by making it harder for states to anticipate and adjust their policies to new case law.Footnote 66
Last, but not least, pursuing multiple claims simultaneously may, at least in some cases, help raise wider public awareness to the human rights issues in question. The recent decision by France to abandon the delivery of six coast guard boats to Libya is a case in point.Footnote 67 While the decision remains political, the matter was the subject of a lawsuit at the Paris Administrative Court of Appeal that—together with concurrent litigation against Italy before the European Court of Human Rights (ECtHR)—helped spark public attention and debate about the matter.Footnote 68 On a different but related issue, multiple claims filed concerning crimes against the Rohingya—with the International Criminal Court (ICC), the International Court of Justice, as well as the Federal Court of Buenos Aires—have considerably raised public attention to this issue.Footnote 69
In sum, the topographical approach starts by perceiving the legal and geographical terrain where human rights violations or other legally wrongful acts related to migration control take place as a site for investigation. It seeks to represent the “surface features” of the law by surveying and mapping the various accountability structures in a holistic manner. And though it draws on critical thinking in regard to legal geography and strategic litigation, it retains a focus on the potentiality of law through structured and creative explorations of litigative opportunities.
C. Towards Topographical Practice
Following the above, a topographical mapping of accountability may be conceived of as comprising at least two interrelated elements. First, the development of a wider transnational legal tool box, through attention to diverse legal regimes. These avenues include, but are not limited to, constitutional law, tort law, international criminal law, and the law of the sea. Second, applying a wider geographic lens to accountability. This involves paying more attention to the potential role of domestic courts and regional mechanisms in the jurisdictions pertaining to partner states for international cooperation on migration control. It may further involve considering accountability opportunities in and cooperation with the countries from which migrants and refugees originate or are returned to. This Section sets out steps toward topographical practice, with specific references to existing work and practice.
I. Mapping Accountability Across Regimes
From the perspective of international law, establishing accountability for migrant and refugee rights violations has always required a certain degree of adjudicatory exploration. The lack of a dedicated international court or quasi-judicial monitoring mechanism pertaining to the refugee regime has historically led scholars and practitioners to focus on domestic judiciaries. Over the past few decades, however, the rights of other categories of migrants have been contested before other legal institutions, invoking other human rights treaties,Footnote 70 as well as EU law.Footnote 71 While some of these institutions have remained more ambivalent about taking on a larger role in this issue area,Footnote 72 others have more generally embraced the opportunity to fill this judicial vacuum. Indeed, non-refoulement cases today make up the overwhelming majority of pending petitions before the Committee Against Torture.Footnote 73 New opportunities have further emerged as a result of normative and institutional developments. The CEDAW committee, for example, has recognized an implied prohibition against refoulement and heard individual communications involving refugee authors.Footnote 74 The Committee on the Rights of the Child, which began receiving individual communications only in 2014, has started to receive complaints related to refugee children.Footnote 75
Only recently, however, have scholars begun to substantively investigate accountability avenues beyond the human rights turn.Footnote 76 Recent research and litigation have emphasized the potential for challenging current migration control practices from the perspective of other legal frameworks, including international criminal law,Footnote 77 EU public procurement law,Footnote 78 constitutional law,Footnote 79 tort law,Footnote 80 and common law.Footnote 81 While earlier works on accountability often focus on core refugee rights—such as non-refoulement, access to asylum procedures, and freedom from arbitrary detention—common to this more recent generation of scholarship is an expanded focus on litigation for a broader set of rights and remedies. It is further noteworthy that several of these works emphasize a strategic reorientation back towards domestic legal frameworks, suggesting that in the current climate of backlash against international adjudication, national litigation strategies may prove more progressive and sustainable.Footnote 82 At the same time, it should be noted that domestic courts and their sphere of operation also face significant backlash in several Global North and Global South states; such a conclusion thus remains highly context specific. For the purpose of the present exercise, however, any such a priori choice of forum would be antithetical to a topographical approach. Hence, the following addresses a couple of lesser explored legal regimes, including both domestic and international law.
One source of accountability for both governments and multinational corporations involved in migration control, especially in common law jurisdictions, is tort law. In Australia, tort litigation in the context of the Nauru and Papua New Guinea RPCs has been effective in securing the transfer of hundreds of asylum seekers and refugees requiring medical treatment, ensuring financial compensation for inadequate detention conditions, and procuring access to safe and legal abortions.Footnote 83 Notably, in Kamasaee v. Commonwealth of Australia, 1,900 asylum seekers and refugees detained at the Manus Island RPC settled a tort action for A$70 million plus costs in a case alleging that the Australian government and its contractors, G4S and Transfield Services, were negligent in providing inadequate food, water, shelter, and security offshore.Footnote 84
A recent article on the litigation concluded: “[T]ransnational human rights litigation, framed in tort, remains a powerful means of providing redress for (human rights) wrongs.”Footnote 85 Most known tort cases, however, while related to negligence and violations of the actor's duty of care, seldom involve any explicit discussion of international human rights or refugee law. Yet, where the evidentiary threshold for a criminal conviction cannot be met, the lower standard of proof typically applied in civil actions may further establish responsibility. In the United States, both government and private contractor responsibility were considered in Medina v. O’Neill and Danner's Inc. The case concerned sixteen stowaway migrants who were discovered by Immigration and Naturalization Service (INS) agents and subsequently detained by the private security company Danner's Inc. in a windowless 12 by 20-foot cell owned by the company. Following unrest among those detained, a Danner's Inc. employee, untrained in the use of firearms, used a shotgun as a prod and the gun went off, killing one migrant and wounding another. Criminal charges were never raised, and the INS rejected any responsibility for the actions of Danner's Inc., which was contracted directly by the transportation company. In the ensuing civil suit, however, the district court found that, despite the absence of a direct contractual relationship, the “public powers” test was satisfied, and it held both the INS and Danner's Inc. jointly and severally liable for damages.Footnote 86
A further avenue for accountability is constitutional law and non-discrimination law.Footnote 87 Beyond the prominent example of the Prague Airport case—in which the UK House of Lords found that pre-departure checks of Roma persons at Prague airport breached national discrimination law—recent constitutional challenges, particularly in the Global South, have been at least partial successes. The Constitutional Court of Ecuador struck down a presidential decree that limited the rights of asylum seekers to apply for and appeal protection decisions and narrowed the meaning of “refugee” in national law.Footnote 88 In the context of offshore processing, the Papua New Guinea Supreme Court ordered the closure of the Manus Island RPC on constitutional grounds, ordering:
[B]oth the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers or transferees Constitutional and human rights.Footnote 89
Most recently, Guatemala's Constitutional Court imposed a temporary injunction on the operation of a safe third country agreement with the United States.Footnote 90 Equally, litigation challenging the Canada-United States safe third country agreement under the Canadian Charter is ongoing.Footnote 91 As Stephen Meili points out, there is potential for constitutionalized human rights law to be transplanted to a range of national settings across regions.Footnote 92
At the level of international law, recent communications to the ICC alleging crimes against humanity concerning both Australia's operations on Manus Island and the EU's role in pullback operations to Libya highlight issues of impunity, notwithstanding remote chances of success.Footnote 93 Other international bodies, however, may well come to play a role in these cases as well. One such entity is the International Tribunal for the Law of the Sea (ITLOS). As a body vested to adjudicate disputes under a legal regime governing both the competence of states to perform migration control at sea and situations involving search and rescue, ITLOS would be directly relevant to hear cases concerning both Europe's and Australia's maritime migration control.Footnote 94 In 2018, ITLOS's Vice President David Joseph Attard himself suggested that the tribunal may come to play a larger role in this area:
I believe that with the current migration at sea crisis, the Tribunal may be confronted with disputes which involve a thorough understanding of the relationship between the law of the sea and human rights law. In the light of its jurisprudence and its insistence on taking into account humanitarian considerations in maritime disputes, the Tribunal is best suited to deal with these issues.Footnote 95
A similar integrationist approach has been emphasized in the tribunal's case law, noting that “states are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances.”Footnote 96 The inter-state nature of the tribunal's jurisdiction would require cases be raised by flag states or competing coastal states—for example, in the context of disputes over disembarkation.Footnote 97 The tribunal similarly has jurisdiction in “prompt release cases” involving situations where a coastal state has detained a foreign flag vessel or its crew. Though proceedings are formally between states, private actors such as shipowners do, under certain circumstances, enjoy de facto standing to invoke their rights—something likely to be particularly important in cases involving non-governmental rescue vessels or merchant ships.Footnote 98
II. Wider Geographies of Accountability
Attention to legal topography also involves a geographical mapping of accountability. As migration control is enacted extraterritorially or in concert, involving cooperation between multiple states, private actors, and international organizations, the choice of forum through which to pursue accountability for human rights violations becomes particularly important.
In parallel to the limited trajectory regarding the regimes through which accountability has traditionally been sought, a geographical focus on the Global North may be argued to exist when it comes to the jurisdictions through which human rights violations are addressed.Footnote 99 For both scholars and strategic litigators, the principal question has remained how to hold sponsoring states accountable for their role in extraterritorial, outsourced, or privatized migration control. The concomitant responsibility of cooperating states in transit and origin countries as part of these schemes is seldom, if ever, considered. Consequently, the focus has remained on domestic, regional, and international mechanisms of accountability in the Global North.
For some, the persistence of a such a geographic focus in this particular context may be both understandable and justified. The current generation of cooperative deterrence has historically grown out of unilateral measures of externalization operated by asylum countries in North America, Europe, and Oceania. And even in their current form, cooperative schemes are premised upon global inequality, allowing wealthier states to contract, co-opt, or coerce their less affluent peers to provide access to their territory and engage their national authorities for migration control. Focusing on the legal liability of implementing states in the Global South is at best a distraction, and at worst may be argued to sustain exactly the responsibility shifting logic around which cooperative deterrence measures are designed.
At the same time, however, this narrow focus on accountability for and through legal institutions pertaining to sponsoring states may also be argued to reflect a more deepseated Western or Global North bias in refugee law scholarship more generally. As Cantor points out, relevant practice and case law from states in the Global South “rarely feed back into scholarship on global refugee law and tend instead to be treated in isolation, often as an exception to the ‘true’ international form of refugee law.”Footnote 100
From a more practical perspective, the lack of attention to accountability opportunities within or pertaining to partner states in the Global South is problematic for several reasons. First of all, conceiving of accountability solely from the vantage point of extraterritorialization or outsourcing risks putting legal strategies at a conceptual disadvantage in light of current empirical developments. Although asylum countries in the Global North still lead policies of cooperative deterrence, the locus of control has shifted well beyond these regions. No longer is proximity to the destination border all that important. Practice has turned to upstreaming, which involves strategic interventions at early junctures on the migration route.Footnote 101 Second, current cooperation on migration management often leaves the actual implementation of controls largely to the authorities of partner states. As Giuffré and Moreno-Lax argue, they are designed to render the actions of destination states “contactless,”Footnote 102 avoiding physical contact with people on the move, and thus any jurisdictional link.Footnote 103
The political agency of Global South states engaging in cooperative migration control should not be ignored. Such agency may be both positive or negative. For example, Gerasimos Tsourapas’s work accounts for how “refugee rentier” states such as Jordan, Lebanon, and Turkey have used the Syrian refugee crisis to their advantage.Footnote 104 In other cases, however, host states in the Global South—or political factions within them—have shown general resistance to the kind of sovereign impositions that cooperation on migration control entails.Footnote 105 A greater focus on the potential risks—be it in legal, domestic, political, or reputational terms—of cooperation with Northern-led migration control policies may help to shift the balance of national policies towards respect for migrant rights.
Finally, such a bias further ignores the growing body of case law, research, and mobilization in regard to refugee rights and migration control from the Global South.Footnote 106 Recent research thus documents how European externalization policies are increasingly contested by NGOs, academics, and state actors from within the countries in which they operate.Footnote 107 As early as 2008, Barbara Harrell-Bond called for the construction of a refugee rights infrastructure in the Global South, including legal aid for asylum seekers and refugees.Footnote 108 More recently, the Law of Asylum project—operating in Egypt, India, Malaysia, and Hong Kong—could be seen as an example of what we would call topographical practice, using relevant local legal frameworks to protect refugees.Footnote 109
The role of domestic courts in the countries where cooperative migration control operates should further not be underestimated. As detailed in the subsequent Section, it was neither UN treaty bodies nor domestic courts in Australia that finally undid Australia's offshore processing center on Manus Island, but rather the Papua New Guinea Supreme Court.Footnote 110 In 2017, a Libyan appeal court suspended the Memorandum of Understanding signed between Libya and Italy, though the Supreme Court subsequently overturned the decision.Footnote 111 In January 2019, a Mexican Administrative Court held that a thirty-day application deadline for protection procedures breached the right to asylum in the Mexican Constitution.Footnote 112
A broader geographical approach to accountability for migration control, also including partner countries in the Global South, further provides access to a different set of regional mechanisms. To cite just one example, the African Commission on Human and Peoples’ Rights has recently been identified as an arena for increased interventions, with a mandate to protect and promote human rights drawn from the 1981 African Charter on Human and Peoples’ Rights.Footnote 113 The Charter has been interpreted as extending the Commission's mandate to the interpretation of the Refugee Convention and 1969 OAU Convention Governing Specific Aspects of the Refugee Problem in Africa (OAU Convention), an instrument otherwise lacking a supervisory treaty body.Footnote 114 Moreover, the Commission has been innovative in terms of standing, allowing petitions from both individuals and NGOs who are not victims of the violation, provided a victim is identified.Footnote 115 The Commission has been characterized as a “complementary” source of refugee protection and heard a number of cases from asylum seekers and refugees, relating to reception conditions, non-refoulement, and return.Footnote 116 The legal weight of the Commission's views is generally thought to be nonbinding, with the Charter referring only to an ability to make recommendations to state governments.Footnote 117
Given Maria Sharpe concludes the Commission is a “viable forum for the enforcement of refugee rights,” it is perhaps surprising that no petitions have thus far been brought to the African Commission concerning cooperative migration control policies between African and European states. In principle, accountability could be pursued through parallel applications to the ECtHR with respect to the conduct of the European state, and to the African Commission with respect to the conduct of the African state. Recently, for example, Italian and Egyptian NGOs jointly called for African Commission investigations into human rights abuses in Libya.Footnote 118
Last, but not least, applying a topographical approach opens up a range of possibilities through which to hold sponsoring states accountable through claims made from, or through, countries in the Global South. The political and economic inequality underpinning most cooperative deterrence schemes may well give rise to challenges from political actors in partner states. It is notable that the Papua New Guinea case was brought not on behalf of detained asylum seekers, but by a political opposition leader on the basis that detention of asylum seekers within the center violated the right to personal liberty enshrined in the country's constitution.Footnote 119
Similar dynamics can be observed in other areas of international law. Gambia recently filed an application instituting procedures and requesting provisional measures at the International Court of Justice in regard to the Rohingya genocide claim.Footnote 120 Days later, a lawsuit concerning the same issue was filed in Argentina, a country whose domestic courts have previously applied the principle of universal jurisdiction in cases involving international crimes.Footnote 121 Both cases highlight the potential of other jurisdictional bases—including nationality jurisdiction and flag state jurisdiction of, for example, rescue vessels—as ways to open up domestic and inter-state litigation in regard to refugees and migration. Besides the clear overlap with innovations in international criminal law explored above, these examples demonstrate how different jurisdictions can be leveraged to bring litigation.
As mentioned in the previous Section, tort law may further provide an important mechanism through which to secure accountability for human rights violations by foreign actors, both private and public. Most well-known in this regard is the United States’ Aliens Tort Claims Act (ATCA), which allows foreigners, including migrants and refugees, to bring claims against non-state actors for human rights violations.Footnote 122 Claims have equally been accepted in instances where individuals or corporations have acted on behalf of a government, as have suits against both private parties and the US government.Footnote 123 The 2013 US Supreme Court ruling in Kiobel laid down a general presumption against extraterritorial application that brought an end to several pending claims.Footnote 124 The Supreme Court, however, also noted that this presumption may be rebutted where claims can be shown “with sufficient force” to “touch and concern the territory of the United States.”Footnote 125 Other jurisdictions, especially within common law countries, may come to fill this gap without facing similar restrictions. We could well see a more active role for transnational tort litigation both within the countries where violations in the context of migration control take place as well as the victims’ countries of origin.Footnote 126 Relatedly, complaints against corporations involved in migration control under the UN Guiding Principles on Business and Human Rights may also play a role.Footnote 127
In sum, the choice of forum should not be limited to accountability mechanisms in or pertaining to the role of states in the Global North. An exclusive focus on the responsibility of sponsoring states risks coming at the expense of migrants and refugees, for whom the international justice element is likely to be a secondary concern to the human rights violations endured. In cases concerning cooperative deterrence, each state should be held accountable to the extent of their legal responsibility. A broader focus on accountability in the Global South does not mean that political power asymmetries are ignored. On the contrary, the topographical mapping offers a set of complementary pathways through which to address the responsibility of sponsoring states.
D. A Topographical Retrospective: The Manus Island Regional Processing Centre
The myriad attempts to establish accountability for human rights breaches at the Manus Island RPC is perhaps the best extant example of a topographical approach in practice. In November 2012, the transfer of asylum seekers intercepted by Australian authorities to Papua New Guinea began in a reboot of the Pacific Solution in place between 2001 and 2008. Under a hastily concluded bilateral agreement providing for the processing of asylum claims and the settlement of refugees in Papua New Guinea,Footnote 128 asylum seekers were held in closed detention in a remote navy base on Los Negros Island, immediately adjacent to Manus Island.
At the time, Papua New Guinea lacked a national asylum framework, with no regulations transposing Article 1A(2) of the 1951 Convention into national law and no regulations governing the asylum procedure. Final status determinations were not forthcoming until the middle of 2015, almost two and a half years after the arrival of the first cohort of asylum seekers.Footnote 129
The RPC held 1,300 asylum seekers and refugees at the height of its operations. From July 2013, due to the harsh conditions, only men were transferred to the Centre. Existing literature accounts for the clear breaches of human rights and refugee law that occurred at the Manus Island RPC.Footnote 130 Following the decision of the Papua New Guinea Supreme Court in Namah v. Pato, the RPC was formally closed on October 31, 2017. While the Centre is no longer in operation, around 200 asylum seekers and refugees remain in Papua New Guinea in need of solutions.
From the outset, the Manus Island RPC was constantly the object of legal challenges in national and international fora.Footnote 131 Applied to the approach advanced above, the Manus Island RPC was the site of criss-crossing legal regimes, with litigation spanning international human rights law, international criminal law, business and human rights, and, at the national level, constitutional law and the common law tort of negligence.Footnote 132
The following selected chronological examples illustrate the multiple legal strategies attempted with respect to the Centre. In June 2014, the High Court of Australia dismissed an application of an asylum seeker who had been transferred to the Manus Island RPC and unsuccessfully claimed the transfer went beyond the alien's power contained in Section 51(xix) of the Australian Constitution.Footnote 133 In September 2014, an unsuccessful complaint was submitted to the United Kingdom National Contact Point under the Organisation for Economic Co-operation and Development (OECD) against G4S for its role in the operation of the RPC.Footnote 134 In December 2014, the Committee Against Torture in Geneva, in its concluding observations on Australia, found the RPC triggered Australia's obligations extraterritorially.Footnote 135
In April 2016, the Supreme Court of Papua New Guinea in Namah v. Pato held that detention of asylum seekers under the bilateral arrangement breached the right to liberty set out in the constitution, precipitating the eventual closure of the RPC in October 2017.Footnote 136 In July 2016, Australian courts began acknowledging a duty of care founded in tort to transfer asylum seekers and refugees from the RPCs on Manus Island and Nauru to Australia.Footnote 137 In February 2017, Stanford Law School and the Global Legal Action Network (GLAN) requested that the ICC prosecutor investigate possible crimes against humanity at the RPCs.Footnote 138 In June 2017, a settlement was reached in a class action suit brought by 1,900 detainees against the Australian government and its contractors at the Manus Island site for A$70 million, plus costs (Figure 1).Footnote 139
Figure 1. Accountability avenues in regard to the Manus Island Regional Processing Centre
This brief account of legal interventions with respect to the Manus Island RPC points to the potential of a topographical approach. A number of different legal regimes were invoked, including domestic law in the Global South.Footnote 140 In Australia, common law tort litigation has become the most important vehicle for remedies and protection against violations of human rights in the offshore RPCs in the absence of a bill of rights and relatively weak judicial review.Footnote 141 These efforts are rarely coordinated. For example, while Australian NGOs were active in pursuing legal challenges to the Manus Island RPC, litigation in Papua New Guinea was, as mentioned, brought by a former leader of the opposition.
The Manus Island case equally demonstrates varying levels of accountability. In the absence of enforceable international standards and a binding regional mechanism in Asia-Pacific, domestic jurisdictions came to the forefront. While Namah v. Pato effectively outlawed the policy of arbitrary detention in Papua New Guinea, requiring the RPC's eventual closure, Australian litigation for medical transfer is highly individualized, turning on the specific medical condition and availability of treatment in Nauru, Papua New Guinea, or a third country.Footnote 142 At the global level, complaints to the ICC elevate pressure on participating governments, notwithstanding slim chances of a trial, while the UN treaty bodies and special rapporteurs also raise awareness, maintain scrutiny, and elicit responses from the Australian government.Footnote 143
Given the increase of migration control arrangements between countries in the Global North and South, the emergence of sites akin to the Manus Island RPC is more than a distant possibility. While we by no means claim that the legal interventions set out above were entirely successful in preventing or protecting from human rights breaches, they clearly were crucial in mitigating impunity, rightlessness, and unfettered state actions and thus provide important lessons for future efforts.
What lessons can be drawn from the Manus Island case? While definitive conclusions are difficult to draw, three observations may inform future accountability efforts in this and other regions. First, litigation in the national courts of both states played a key role in challenging this migration control site. In Australia, tort law has emerged as the most effective strategy to achieve the transfer of asylum seekers and refugees off the islands, while in Papua New Guinea constitutional law ended the RPC's operation. Second, legal challenges could potentially have been expedited and streamlined through coordination. While there was a level of coordinated advocacy, primarily in Australia, the ad hoc and disparate nature of legal complaints points to a lack of an overarching strategic approach. Finally, there was no unitary case or even legal regime that provided remedies to refugees at the Manus Island RPC; rather, accountability efforts relating to the site were varied and fragmented.
E. Conclusions
This Article has attempted to advance a systematic approach to mapping accountability avenues for human rights violations in the context of migration control. Drawing on legal geography, we have argued that accountability structures may usefully be approached topographically, as a practice of systematically surveying the surface features and creatively (re)constructing the transnational legal architecture surrounding sites of human rights violations.
Thus, rather than advocating for accountability in regard to particular regimes or jurisdictions, the topographical approach offers a general framework for mapping and exploring the full grid of potential accountability mechanisms. We readily acknowledge the breadth and difficulty of such an exercise, and the present article has but scratched the surface through the examples provided. Nonetheless, as a methodological tool, we believe the topographical approach adds value by stressing an inherently open-ended and explorative agenda for achieving accountability that can help identify blind spots or critically reassess existing trajectories. The elements of topographical practice outlined in the present Article are only a starting point. The mapping of regimes and jurisdictional avenues ultimately serve to enable wider reflections around the relative value and possibilities provided by different, and often corollary, approaches to accountability.
Such an analysis invariably presents further questions and dilemmas not touched upon here. The avenues outlined above entail very different legal, jurisdictional, political, and strategic implications. What strategy or litigative avenues are most likely to prove successful and effective in constraining state action will necessarily vary from situation to situation.Footnote 144 The crucial intervention in the Manus Island case came from the national court of the partner state, likely reflecting the relatively weak enforcement of international human rights law in both Australia and the Asia-Pacific more broadly. In contrast, a mapping of the legal topography in regard to current cooperation on migration control with, for example, Libya would paint a different picture. Despite the backlash, the European regional human rights regime remains powerful compared to other similar regimes, and litigative opportunities in Libya conversely limited.
Nor should legal accountability discussions be blind to the wider economic and political context in which they are couched. At present, resources to pursue accountability mechanisms, particularly in the Global South, remain severely limited. With respect to both scholarship and litigation, new transnational alliances are necessary to tackle the cooperative migration control measures across North and South. Topographical practice thus requires transnational expertise likely only to arise through cooperation.
At a deeper level, the topographical approach finally raises questions about the future development and coherence of international migration and refugee law. The topographical approach is based on what might be called pragmatic disaggregation by stressing multipronged approaches to accountability.Footnote 145 Still, asking multiple judiciaries across regimes to rule on the same issues is also more likely to lead to contradictory and conflicting results. While a single win may, ideally, be enough to prompt even far-ranging changes in state practice, there is equally a risk that judicial fragmentation undermines doctrinal efforts to espouse universal claims or interpretations of migrant rights. This is a risk that must be tolerated if, as we believe, multi-pronged approaches remain the best bet through which to ensure accountability for human rights violations in the context of migration control. Navigating such a fragmented judicial landscape, moreover, is hardly a new challenge for migration and refugee lawyers. For decades, accountability in this area of law has relied on networks of national courts, in which individual decisions are never “final stops” but at best “way stations” in the “complex enforcement” of migrant refugee rights.Footnote 146
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