Immigration detention in Guantanamo Bay (not going anywhere anytime soon)

The detention facilities at the United States’ Naval Station at Guantánamo Bay, 45 square miles (120 km2) of land located at the south-eastern corner of the island of Cuba, gained global notoriety since the ‘War on Terror’ began in 2002. It is not so widely known, however, that since 1991 the base has been extensively used as an immigration detention facility for asylum seekers and refugees. This paper is concerned with the ‘Migrant Operations Center’ (MOC), which is the immigration detention facility operating at the base under a cloak of relative secrecy. It places the Guantánamo Base in its historical and geographic context. It shows that the very particular imperial geography of Guantanamo Bay anticipated its use as a detention facility for ‘aliens’. This paper argues that it is problematic for the US to continue the decades old policy of interdicting and detaining refugees at Guantánamo, despite its alleged, though empirically unfounded, role as a deterrence mechanism for others considering a boat journey to US shores

Processing centres in North Africa are not the answer for EU refugees

Last month, French President Emmanuel Macron invited his counterparts from Libya, Niger, Chad, Italy, Germany and Spain to Paris to discuss ways of stopping the flow of irregular migrants and refugees through transit countries. The leaders explored the possibility of establishing processing facilities in North Africa to identify refugees and turn back anyone who does not qualify for resettlement. The talks come two years after approximately one million people arrived by boat in Europe, 75% of whom came from some of the world’s top refugee producing countries such as Syria, Afghanistan and Iraq. The numbers in 2017 are very different. As of September 12, 129,002 people have attempted the sea journey to Europe this year. But the drop in the number of people arriving is not enough for the EU. The pressure to stop the arrival of refugees and irregular migrants is becoming overwhelming in many European countries, where the rise of the extreme right has been linked to concerns over the lack of border protection and an unwarranted linking of terrorism with irregular migration

Out of sight, out of right? : who can be held accountable for detainees harmed on Nauru?

This chapter argues that people subjected to offshore processing in Nauru who have been harmed by the actions or omissions of the Australian government may have a right to compensation under tort law. Although the arrangements in Nauru are complicated and involve the International Organization for Migration (IOM), the government of Nauru, private contractors such as Chubb Security and Eurest as well as the Australian government, this paper contends that Australia cannot escape its obligation to care for asylum seekers in offshore facilities. Recent case law involving immigration detainees in Australia suggests that Australia has a non-delegable duty of care to asylum seekers and this may extend to asylum seekers Australia has transferred to Nauru for processing

Out of sight, out of right?: the United States’ migrant interdiction program in international waters and in Guantánamo Bay, Cuba

The United States operates a Migrant Interdiction Program (MIP) outside its territorial sea and in Guantánamo Bay, Cuba. This thesis provides a legal analysis of the MIP as it relates to Haitian and Cuban nationals interdicted by the United States. This thesis examines the MIP from the perspective of the United States’ municipal law, as well as a range of applicable international laws including international maritime, human rights and refugee law. This thesis argues that the United States’ MIP is largely compliant with its own municipal law and international maritime law, with the important exception of the United States’ practice of turning rescue operations into interdiction operations. However, the MIP places the United States in breach of numerous obligations under international human rights and refugee law. This thesis argues that the most viable means of remedying these violations is for the United States to cease the practice of turning rescue operations into interdictions; refrain from the use of Guantánamo Bay as a refugee processing and detention facility; conduct all status determinations in the United States; and resettle individuals owed protection from refoulement in the United States. This thesis will also argue that interdictees and their advocates cannot turn to the international legal regime or to the courts of the United States to compel the United States’ executive to abide by its international obligations. This is because of the lack of effective enforcement mechanisms in the international legal regime. Furthermore, international human rights and refugee law obligations discussed in this thesis are not enforceable in the courts of the United States without additional implementing legislation. The United States has not implemented all of its international obligations in municipal law, and those obligations that have been implemented are unlikely to apply to the United States’ executive in international waters and in Guantánamo Bay

Swapping refugees : the implications of the 'Atlantic Solution'

In a media release on 17 April 2007, Minister for Immigration, Kevin Andrews announced that Australia had signed memorandum of understanding (MOU) with the United States that would enable the two countries to 'swap refugees'. Under the arrangement the United States will resettle up to 200 refugees who arrive in 'excised offshore places' in Australia and are transported to Nauru by Australia for further processing. In exchange, Australia will consider the resettlement of refugees intercepted by the United States and currently detained at Guantanamo Bay in Cuba. The actual processing of asylum seekers to determine refugee status will remain the responsibility of the country where the asylum seeker initially sought protection. This paper outlines the history of interception and offshore processing by the United States and Australia. The United States' processing of asylum seekers in Guantanamo Bay inspired Australia's own offshore processing in Nauru and Papua New Guinea. The recently announced 'refugee swap' is a reminder of the parallels between US and Australian practices towards refugees and asylum seekers

Detention of Australia's asylum seekers in Nauru : is deprivation of liberty by any other name just as unlawful?

This article will examine the detention of Australia’s asylum seekers in Nauru. In particular, this article will assess the conformity of the 2013 MOU between Australia and Nauru with the protections against unlawful deprivation of liberty under the Constitution of Nauru and the protections against arbitrary detention afforded to asylum seekers under international law. The article will begin by discussing the transfer of asylum seekers by Australia to Nauru and the legality of this arrangement under Australian municipal law. The article will then discuss the arrangements for asylum seekers once they are in Nauru. It will demonstrate that the confinement of asylum seekers in the RPC constitutes detention under the municipal law of Nauru and international law, notwithstanding the recently announced open centre arrangement at the RPC or objections to such a characterisation from Australia and Nauru

Explainer : why is Australia adopting the global refugee compact but not the migration compact?

Australia was one of 176 countries to vote in favour of the Global Compact on Refugees (refugee compact) in mid-November this year. The United Nations General Assembly will adopt it by the end of 2018. However, Australia did not join the Global Compact for Safe, Orderly and Regular Migration (migration compact) at a conference in Morocco on December 10-11

United States Migrant Interdiction and the Detention of Refugees in Guantanamo Bay

This book provides a thorough legal analysis of the United States Migrant Interdiction Program, examining the United States' compliance with its obligations under municipal and international law as it interdicts individuals at sea, conducts status determinations, and returns those interdicted to their home countries. This book also examines the rights of the small number of refugees and individuals at risk of torture detained in Guantánamo Bay, Cuba, awaiting resettlement in third countries. Policy-makers, students and scholars will benefit from this book's clarification of the legal obligations of nations engaged in extraterritorial status determination and detention, as well as its blueprint for compliance with international human rights and refugee law. As the first book of its kind devoted to the United States' interdiction program, this work represents an important contribution to scholarship in refugee law and policy, US constitutional law, international maritime law, and international human rights law