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The Globalization of High Seas Interdiction: Sale’s Legacy and Beyond

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In recent decades, migrants have increasingly turned to dangerous maritime routes in their attempts to access the asylum systems and labor markets of the Global North. In the early 1980s, the United States was the first country to respond to such arrivals with a high seas interdiction program, initially conceived of as a means of intercepting Haitian asylum seekers before they reached U.S. territory. In its 1993 Sale v. Haitian Centers Council decision, the Supreme Court held that neither the Refugee Convention nor domestic immigration statutes constrained the executive’s capacity to interdict and return asylum seekers at sea. In the wake of 9/11 and the border control anxieties it sparked, several individual European countries, the European Union, and Australia adopted variants of the U.S. migrant interdiction approach. Overtly relying on the U.S. Supreme Court’s decision in Sale, these countries transformed a regional U.S. border policing program into a vexing phenomenon of global scope.

More than twenty years have passed since the U.S. Supreme Court announced its decision in Sale. In light of this milestone, this conference aims to bring together legal scholars, legal practitioners, and policymakers with both theoretical and practical insights into the extraterritorial migrant interdiction regimes that have emerged over the past several decades. The conference will provide an opportunity for participants to debate pressing questions related to the global rise of migrant interdiction, including the lawfulness and prudence of such programs, the concerns they raise with regard to balancing national security concerns and human rights commitments, and the role of transnational law reform campaigns in both challenging and solidifying the position of migrant interdiction in the contemporary juridical landscape.

Program

Friday March 7, 2014

Panel I: Introduction: Migrant Interdiction, Sale, and International Law
4:00 – 5:30pm
Panelists:

  • Niels Frenzen, Clinical Professor of Law, USC Gould School of Law
  • Guy S. Goodwin-Gill, Senior Research Fellow, All Souls College, Oxford; Professor of International Refugee Law, Oxford University
  • Sarah Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School

Moderator:

  • Oona Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School

Keynote I: Harold Hongju Koh, Sterling Professor of International Law, Yale Law School
5:30-6:30 pm

Dinner for Invited Panelists
7:15pm

Saturday March 8, 2014

Panel I: The Legacy of Sale in the United States
10:00 – 12:00pm
Panelists:

  • Ira Kurzban, Partner, Kurzban, Kurzban, Weinger, Tetzeli and Pratt PA
  • Jocelyn McCalla, Executive Director, JMC Strategies, Inc., Past Director, National Coalition for Haitian Rights
  • Cheryl Little, Executive Director, Americans for Immigrant Justice
  • Azadeh Dastyari, Associate, Castan Centre for Human Rights Law, Lecturer, Faculty of Law, Monash University

Moderator:

  • Lucas Guttentag, Robina Foundation Distinguished Senior Fellow in Residence, Ford Foundation Distinguished Research Scholar and Lecturer in Law, Yale Law School

Lunch
12:00 – 1:30pm

Panel II: Current Litigation and Advocacy Approaches
1:30-3:00pm
Panelists:

  • Paul Power, CEO, Refugee Council of Australia
  • Forensic Architecture
  • Bill Frelick, Director, Refugee Program, Human Rights Watch
  • Meron Estefanos, Co-Founder, International Commission on Eritrean Refugees

Moderator:

  • Mike Wishnie, William O. Douglas Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization, Yale Law School

Panel III: National Security, Asylum Seekers, and Border Policing in the 21st Century
3:15 – 4:45pm
Panelists:

  • Thomas Gammeltoft-Hansen, Head of Research, Danish Institute for Human Rights, Member, Danish Refugee Appeals Board
  • David Martin, Warner-Booker Distinguished Professor of International Law, University of Virginia School of Law
  • Patrick Weil, Senior Research Fellow, French National Research Center, University of Paris 1, Pantheon-Sorbonne

Moderator:

  • Paul Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School

Keynote II: Alexander Aleinikoff, Deputy High Commissioner, Office of the United Nations High Commissioner for Refugees
5:00 – 6:15pm

Cocktail Reception
6:30pm

Contact Information for Conference Organizers:
Tendayi Achiume, J.D., Binder Teaching Fellow, UCLA School of Law
Jeffrey Kahn, J.D., Ph.D., Academy Scholar, Harvard Academy for International and Area Studies
Itamar Mann, L.L.B., L.L.M., National Security Law Fellow, Georgetown Law Center

Sponsors:
The Orville H. Schell, Jr. Center for International Human Rights at Yale Law School
The Ford Foundation
The Immigration Practice and Theory Workshop