This article is authored by Anoushka Anand, a Third Year Student of BA LLB (Hons.) at National Law University, Jodhpur.
Introduction The cornerstone of contemporary international refugee protection law is the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention). It finds its foundation in Article 14 of the 1948 Universal Declaration of Human Rights, which declares that everyone has the right to seek and receive shelter from persecution abroad. The Refugee Convention also emphasises non-refoulement, which is the principle prohibiting sending refugees or asylum seekers back to a nation where their lives or freedom are in danger. However, the United Kingdom’s (UK) new law - the Nationality and Borders Act, 2022 severely undermines the right to seek asylum in several ways. This piece seeks to establish that despite being a party to the Refugee Convention, the UK plans to transfer asylum seekers to Rwanda. Furthermore, it voices grave concern that the nation's asylum partnership arrangement breaches international law and could hurt those seeking international protection in ways that are both potentially irreversible and dangerous. I. Conceptualising Refugees and Persecution Refugees by definition are victims of human rights violations. According to Article 1(a) (2) of the Refugee Convention, the term ‘refugee’ applies to “any persons who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. Although ‘persecution’ is not defined in the Refugee Convention, Professor James Hathaway defined it in terms of ‘the sustained or systematic violation of basic human rights demonstrative of a failure of state protection’. ‘A well-founded fear of persecution’, according to him, exists when one reasonably anticipates that the failure to leave the country may result in a form of serious harm which the government cannot or will not prevent.[1] Moreover, persecution encompasses harassment from state actors as well as non-state actors. II. A Neo-Colonial Plan One of the most serious problems that has been plaguing the international community is of the displacement of refugees, resulting inthe unending attacks on their human rights. There is thus a strong link between the refugee crisis and human rights concerns. Human rights violations are not only a primary source of mass departure, but they also make voluntary repatriation impossible for as long as they exist. Minority rights violations and ethnic clashes are also common within the broader spectrum of refugee settlement problems. Thus, there is an urgent need to gather more effective ways to protect and assist these particularly vulnerable groups. Unfortunately, even today, there are governments which are far removed from humanity – with the government of the UK being a recent example. On April 27, 2022, the UK Parliament approved the controversial Nationality and Borders Bill to bring about sweeping reforms in its immigration and citizenship system. By a vote of 212 to 157, the "Anti-Refugee Bill," which would make it illegal to enter the UK without a visa and give the government the power to revoke someone's British citizenship secretly, was approved. It implies that those refugees who try to enter the nation in an unofficial manner risk facing imprisonment. Additionally, the Boris Johnson government unveiled its plan to send some asylum seekers from the UK to Rwanda on a one-way ticket along with the Prime Minister stating that the £120M scheme would "save countless lives" from human trafficking. The British Royal Navy would take over operational command of the English Channel from Border Force as part of the new strategy, with the objective that no boat makes it to the UK undetected. It also gives the UK authorities the power to punish people who enter the country illegally, including life terms for anybody piloting the boats. Thus, instead of operating a fair asylum system, the government’s response comes as an unethical plan which would probably put the safety and rights of the refugees at risk, especially with the record of Rwanda in breaking human rights. There was a widespread criticism of the same by the international community, including Humans Right Watch, which called out the government for choosing to act with cruelty and neglecting their obligations towards those fleeing war and persecution. III. Violation of Non – refoulement? One of the central protections that international law provides to refugees is the right against non- refoulement, which, in the most layman terms means the right not to be forcibly returned or expelled to a situation which would threaten one’s life or freedom. This principle finds expression in various international law instruments such as the Refugee Convention as well as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The most forward and promising provision regarding refoulement is that it applies not only to recognized refugees, but also to those who have not had their status formally declared.The pertinent question that arises at this juncture is whether the UK’s plan to send its refugees to Rwanda is a breach of the principle of non – refoulement. Two features of the principle of become pertinent in this case. First, it has been established that prohibition of refoulement is applicable to any form of forcible removal, including deportation, expulsion, extradition as well as informal transfers. This is evident from the wording of Article 33(1) of the Refugee Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”. Second, the principle applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom. At this point, it is important to note that, as stated earlier, Rwanda has had a track record of human rights violations including extrajudicial killings, deaths in custody, unlawful or arbitrary detention, torture, and abusive prosecutions, particularly targeting critics and dissidents. Such violations were also seen with respect to refugees. In 2018, the police shot dead 11 refugees during a food riot in Rwanda. The aforementioned makes it evident that the safety of the refugees is far from guaranteed in Rwanda, and by transporting the refugees to Rwanda, the UK government would be breaching the principle of non-refoulement. While the government of UK has defended its stance by stating that an “offshoring policy” is allowed according to its international obligations, a view at other attempts of such policies by different governments indicates that they are not fruitful and are infact, counterintuitive for the refugees. For example, between 2014 and 2017, a similar Migration Agreement between Rwanda and Israel is claimed to have led in substantially all of the 4,000 persons estimated to have been brought there fleeing the nation very quickly. Similarly, Australia’s offshoring plan was a failure with at least 10 people having taken their lives while being held in the offshore processing centres. Thus, with no known successful offshore strategy elsewhere in the world, and many human rights violations as a result of such policies, the UK's approach is fraught with danger. IV. Conclusion - A Different Approach The problem of refugees is a complicated and stubborn one, which requires a harmonious approach by international agents, the governments as well as the citizens. It is evident from the discussion that it requires more dedication and humanity on the part of the decision makers to promote and protect the basic human rights of refugees and provide them with a safe asylum. It is paramount for refugee-receiving states to retain their commitment to refugee protection and promote tolerance for differences. In the backdrop of this, the UK’s plan for refugees suffers from a lack of empathy and does not account for the reality of the refugees’ situations. Since the UK has a legal obligation under the Refugee Convention to uphold the principle of non-refoulement, it needs to ensure that a range of practical and human rights-based protection mechanisms are in place for the refugees. Instead of “offshoring” the refugees, the UK should establish mechanisms for entry and stay for those migrants who are unable to return, in order to ensure the principle of non-refoulement. Additionally, administrative and legislative mechanisms should be set up to grant legal status to migrants who cannot return, in the form of temporary, long-term or permanent status. Taking care of refugees is a core component of the human rights paradigm and thus, it is of utmost importance to come up with radical solutions through global cooperation. This includes setting up strong refugee systems like allowing people to apply for asylum, treating their refugee claims fairly and resettling the most vulnerable of all – not just in the UK, but across the world. [1] James Hathaway, “Fear of Persecution and the Law of Human Rights”, Bulletin of Human Rights, 91/1, United Nations, (New York, 1992), p.99, quoted in Brian Gorlick, ‘Refugees and Human Rights’, Seminar (March 1998), P.23.
1 Comment
10/18/2022 Basfar v Wong: A Win for Victims of Modern Slavery or a Fracture in the Law of Diplomatic Immunity?Read NowThis article is authored by Shashwat Singh, a Fourth Year Student of Law at Nirma University.
Introduction The UK Supreme Court, in a recent judgment, found that diplomats responsible for subjecting their domestic workers to situations of modern slavery will no longer have immunity from the civil jurisdiction of the Courts in the UK. The case concerned a dispute between Ms. Wong, a worker of Filipino nationality, and Mr. Basfar, a Saudi diplomat, who had allegedly trafficked Ms. Wong to the UK and subjected her to inhumane and degrading conditions under his household. Pursuant to Article 31(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), diplomats are granted immunity from both criminal and civil jurisdictions of the Courts of the receiving State to facilitate the normal exercise of their diplomatic functions. While immunity from criminal jurisdiction is unqualified, civil jurisdiction immunity can be waived under Article 31(1)(c) of the VCDR if it can be established that the diplomat was involved in a commercial activity outside his official functions. This was precisely the dispute that arose before the Court; can the exploitation of a domestic worker by a diplomat be characterized as a commercial activity for the purpose of Article 31(1)(c)? In answering this question in the affirmative, the Court took a liberal stance in interpreting the phrase “commercial activity”. It conveniently avoided the difficult question of human rights abuse of Ms. Wong. At the same time, it also placed the UK in a vulnerable position vis-à-vis other States as diplomatic immunity under international law is based on the principle of reciprocity. This Article analyses this judgment under three sub-heads. First, it explains the threshold of commercial activity exception as set out by the Court. Second, it highlights how the Court missed an opportunity of interpreting diplomatic law in light of the human rights obligations of the UK. Finally, it analyses how setting a lower threshold for the commercial activity exception conflicts with the reciprocity obligation under the VCDR before concluding. Commercial activity exception It has been widely established (See Mufti, Al-Malki) in the decisions of domestic Courts and the writings of jurists (See Eileen Denza’s Commentary on VCDR) that the exception criteria of “commercial activity” cannot be construed to include activities that are “incidental to the conduct of the daily life“ of the diplomat in the receiving State. Such activities include purchasing goods for personal consumption or purchasing educational or domestic services privately [para 34]. The Court accepted this view and Stated that a private contractual relationship between a diplomat and his servant is incidental to the conduct of daily life of a diplomat and his family, and therefore, fell within the rationale from immunity of the civil jurisdiction of the receiving State [para 37]. However, the Court found that the same is not true when a person is kept in a situation of domestic servitude, forced labour, and human trafficking (which was grouped under the head of ‘modern slavery’). Since modern slavery included a high degree of control over the physical labour of the worker and exploitation of such control for personal profit, it would fall within the commercial activity exception [para 51]. Leapfrogging the human rights argument It was contested by an intervening party (‘United Nations Special Rapporteur on Trafficking in Persons’) that Article 31(1)(c) of the VCDR should be read in a manner to achieve consistency with UK’s human rights obligations. However, the Court decided that such an analysis would be devoid of any purpose because the fact that an activity is unlawful does not mean that it is commercial in nature. This approach appears to be problematic for two reasons. First, the Court itself undertook a detailed analysis of how Ms. Wong’s dehumanization amounted to a situation of modern slavery within the framework of Palermo Protocol. In doing so, it also relied on UK’s other obligations under international law for example, Article 4(a) of the Council of Europe Anti-Trafficking Convention on Action against Trafficking in Human Beings which defines ‘human trafficking’. This highlights that a situation of domestic servitude in a diplomat’s residence has a direct bearing on the issue of human rights, even when the claim brought before the Court does not directly relate to that question. Second, the alleged facts of the case (yet to be established by the Employment Tribunal) are fairly simple. Ms. Wong managed to escape after two years of employment at Mr. Basfar’s household in the UK. Ascertainment of facts may not necessarily be possible in situations of prolonged confinement of a worker especially when the diplomat is transferred to different jurisdictions and the worker accompanies him. Contrarily, a recourse to human rights law would obligate States to protect victims of domestic servitude and slavery from further abuse by taking all possible judicial and administrative measures (Article 4 of the European Convention on Human Rights). It might be argued that human rights law and the law of diplomatic immunity cannot be reconciled because the law of immunities is procedural in nature (ICJ Jurisdictional Immunities Case). This does not, however, mean that the two frameworks cannot complement each other to strike a balance between the “aim served by immunity and a competing interest in limiting opportunity for immunity to be abused” [para 102]. The World Court, albeit, has never received the opportunity to set a compromissory line between the two divergent norms of diplomatic immunity and human rights. The Tehran Hostages Case and the Immunities and Criminal Proceedings Case are both limited as they only expound on the question of diplomatic privileges accorded to diplomats and offer no analysis on the human rights question. This does not mean that the dictum laid down in the Jurisdictional Immunities Case has no relevance. The preamble to the VCDR is explicit in stating that the purpose of [diplomatic] privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions of representing States. Clearly, the efficient performance of diplomatic function does not entail that a diplomat be granted the liberty to confine a worker in a situation of domestic servitude. On the other hand, human rights instruments offer sufficient safeguards to victims of modern slavery through their respective complaint mechanisms. This is especially important because States are unlikely to waive their diplomats’ immunity under Article 32 of the VCDR to allow the receiving State to initiate civil proceedings against diplomats on mere suspicion of their involvement in domestic abuse. Additionally, under Article 32(2), the waiver from the sending States needs to be ‘express’ and not merely an ‘implied’ waiver. This becomes abundantly clear from the draft Articles of the VCDR. States are unwilling to surrender their diplomats to the civil jurisdiction of receiving States until the threshold of Article 31(1)(c) is met. Further, all domestic workers may not be in a condition, and may even find it difficult, to file a claim for damages from the diplomat in his home country. Under such circumstances, granting protection under the human rights framework to workers who have escaped domestic servitude becomes all the more important. Reciprocity under the VCDR Lord Hamblen and Lady Rose in their dissenting opinion pointed out that unilaterally widening the scope of “commercial activity exception” could invite formal or informal retaliatory measures on UK’s diplomats overseas. And this fear appears to be well-founded given that one of the fundamental principles of VCDR is reciprocity. Every receiving State is also a sending State under international law, and therefore, States ascribe great weight to rules protecting the immunity of diplomats. Conclusion An objective analysis of Article 31(1)(c) of the VCDR suggests that Statearties to the VCDR have refrained from accepting a broad interpretation of the “commercial activity exception” and instead accorded greater importance to the norm of diplomatic immunity. In Tabion vs. Mufti, the US Court of Appeals held that domestic services cannot be included within the scope of commercial activity exception as such services are incident to daily life of the diplomat. Again in Reyes vs. Al-Malki, the UK Supreme Court held that merely because a diplomat derived economic benefit by hiring a domestic worker at a price below the market rate did not mean that the activity fell within the commercial activity exception. Similarly, the travaux preparatoires to the VCDR contains no discussion of the trafficking of domestic workers as a basis to broaden the scope of Article 31(1)(c). Therefore, only an evolutionary and flexible approach to interpret the phrase “commercial activity” can justify compromising with the norm of protection of diplomatic immunity. For the reasons already highlighted above, this is the first instance where a State’s Apex Court has held that diplomats cannot abuse their diplomatic immunity to control the physical labour of a worker in an extensive manner to place her in a situation of domestic servitude. This runs counter to the argument that diplomatic immunity should always be protected and can only be waived in matters expressly provided by the VCDR. As of now, it is awaited whether or not the facts alleged by Ms. Wong are established by the Employment Tribunal and how other States, especially Saudi Arabia, reacts to this judgment. |
Details
Archives
June 2023
Categories |