Hyper-Legalism and Obfuscation: How States Evade Their International Obligations Towards Refugees

2020 ◽  
Author(s):  
Daniel Ghezelbash
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Bad Faith ◽  
International Obligations ◽  
The Government

Abstract This Article examines how wealthy democratic states evade and avoid their international obligations towards refugees. The focus is on two strategies. The first is hyper-legalism—an overly formalistic bad-faith approach to interpreting international law. The second is obfuscation, which involves secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications. The discussion is illustrated with examples from the United States, Australia, and Europe. The Article concludes with a discussion of possible tactics for resisting these strategies and holding governments accountable for their actions.

Contemporary Practice of the United States Relating to International Law

1997 ◽  
Vol 91 (3) ◽  
pp. 493-517
Author(s):  
Marian Nash (Leich)
Keyword(s):  
United States ◽  
Hong Kong ◽  
Law Enforcement ◽  
International Law ◽  
The United States ◽  
People’S Republic Of China ◽  
People's Republic Of China ◽  
Republic Of China ◽  
The Government ◽  
Contemporary Practice

On March 3,1997, President William J. Clinton transmitted to the Senate for its advice and consent to ratification as a treaty the Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders, signed at Hong Kong on December 20,1996. In his letter of transmittal, President Clinton pointed out that, upon its entry into force, the Agreement would “enhance cooperation between the law enforcement communities of the United States and Hong Kong, and … provide a framework and basic protections for extraditions after the reversion of Hong Kong to the sovereignty of the People’s Republic of China on July 1, 1997.” The President continued: Given the absence of an extradition treaty with the People’s Republic of China, this Treaty would provide the means to continue an extradition relationship with Hong Kong after reversion and avoid a gap in law enforcement. It will thereby make a significant contribution to international law enforcement efforts.The provisions of this Agreement follow generally the form and content of extradition treaties recently concluded by the United States. In addition, the Agreement contains several provisions specially designed in light of the particular status of Hong Kong. The Agreement’s basic protections for fugitives are also made expressly applicable to fugitives surrendered by the two parties before the new treaty enters into force.

Violation of Treaties by Adverse National Action

1918 ◽  
Vol 12 (1) ◽  
pp. 96-126 ◽  
Author(s):  
Denys P. Myers
Keyword(s):  
United States ◽  
International Relations ◽  
The United States ◽  
Point Of View ◽  
Bad Faith ◽  
Practical Point ◽  
Adverse Action ◽  
Vital Interest ◽  
The Government ◽  
Political Character

The shade of distinction sought to be shown by the title of this paper may require explanation. Imperfect wording involves either carelessness or ignorance; bad faith indicates dishonesty; nonexecution or disregard implies laxness in the government, if not carelessness; adverse or hostile municipal or judicial action connotes lack of coordination between the internal and external affairs of the State. It follows that such adverse action may be considered from a practical point of view as almost a normal kind of violence against international contracts. It is not to be excused on that account, but it may be considered as a frictional incident almost inseparable under some conditions from the existence of a State. Given either a government of definitely separated elements, such as the United States, or a government without much stability, or a State founded on a type of civilization different from the European order, and this sort of violation of treaty may be forecasted with certainty. Fortunately, however, the instances that cause contractual friction of this sort are of the grosser kinds of personal violence, or are commercial; they are not of a political character, cannot be said to involve policy, and only by a stretch of the imagination involve the tweedledum and tweedledee of international relations, “national honor and vital interest.” They are consequently extremely susceptible to simple and orderly solution.

Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures

2020 ◽  
Vol 32 (1) ◽  
pp. 1-27
Author(s):  
Azadeh Dastyari ◽  
Daniel Ghezelbash
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Best Practice ◽  
The United States ◽  
Human Rights Law ◽  
Refugee Status ◽  
State Practice ◽  
International Obligations

Abstract Austria and Italy have recently proposed that processing the protection claims of asylum seekers attempting to cross the Mediterranean should take place aboard government vessels at sea. Shipboard processing of asylum claims is not a novel idea. The policy has been used for many years by the governments of the United States and Australia. This article examines the relevant international law, as well as State practice and domestic jurisprudence in the United States and Australia, to explore whether shipboard processing complies with international refugee and human rights law. It concludes that, while it may be theoretically possible for shipboard processing to comply with international law, there are significant practical impediments to carrying out shipboard processing in a manner that is compliant with the international obligations of States. Current practices in the United States and Australia fall short of what is required. Nor is there any indication that the Austrian/Italian proposal would contain the required safeguards. It is argued that this is by design. The appeal of shipboard processing for governments is that it allows them to dispense with the safeguards that asylum seekers would be entitled to if processed on land. Best practice is for all persons interdicted or rescued at sea to be transferred to a location on land where they have access to effective status determination procedures and are protected from refoulement and unlawful detention.

Basic U. S. Sources For Current Research In International Law: An Elementary Vade-Mecum

1977 ◽  
Vol 5 (3) ◽  
pp. 347-358 ◽  
Author(s):  
Adolf Sprudzs
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
The Other ◽  
Intergovernmental Organizations ◽  
Department Of State ◽  
The Public ◽  
The Government ◽  
The Many ◽  
The U.S

Among the many old and new actors on the international stage of nations the United States is one of the most active and most important. The U.S. is a member of most existing intergovernmental organizations, participates in hundreds upon hundreds of international conferences and meetings every year and, in conducting her bilateral and multilateral relations with the other members of the community of nations, contributes very substantially to the development of contemporary international law. The Government of the United States has a policy of promptly informing the public about developments in its relations with other countries through a number of documentary publication, issued by the Department of State

Contemporary Practice of the United States Relating to International Law

1995 ◽  
Vol 89 (2) ◽  
pp. 366-375
Author(s):  
Marian Nash (Leich)
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Socialist Republic ◽  
The Government ◽  
Contemporary Practice

On January 28, 1995, representatives of the Government of the United States and of the Government of the Socialist Republic of Vietnam signed at Hanoi the Agreement Concerning the Settlement of Certain Property Claims and the related Agreement Concerning the Transfer of Diplomatic Properties.

scholarly journals AKIBAT HUKUM PERATIFIKASIAN PERJANJIAN INTERNASIONAL DI INDONESIA: STUDI KASUS KONVENSI PALERMO 2000

2015 ◽  
Vol 1 (1) ◽  
Author(s):  
Wisnu Aryo Dewanto
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Legal Status ◽  
National Level ◽  
The United States ◽  
Legal Practice ◽  
Indonesian Government ◽  
International Obligations ◽  
Legal Consequences

<p><strong><em>A</em></strong><strong><em>bstract</em></strong><strong><em></em></strong></p><p><em>Ratification in</em><em> Indonesia does not have any legal consequences for the application of the treaties at national level.  The reason is that ratification only binds Indonesia as a subject of international law. In comparison, parliamentary approval in the Indonesian context is not the same as the United States Senate’s approval. </em><em>The Indonesian Government signed the Palermo Convention on December 12, 2000 and ratified it on April 20, 2009. The issue discussed here regards the legal status of this Convention.  In the 80’s it was assumed that any treaties ratified or acceded, would ipso facto be enforceable in Indonesia. I argued that Indonesia should be regarded as a state applying the monist approach, which legal practice seems to reject.  I stand for the monist approach especially with regard to the legal status of the 2000 Palermo Convention. In addition I also argue about the importance of differentiating between Indonesia’s international obligations and the issue of direct applicaton of the Convention by national couts.</em></p><p> </p><p align="right"><strong><em>Keywords: </em></strong><strong><em></em></strong></p><em>Ratification, Integration, Implementation, Treaty, Indonesia’s legal system</em>

scholarly journals Pelanggaran Prinsip Persona Grata Atas Penyerangan Duta Besar Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus Penyerangan Duta Besar Amerika Serikat Di Benghazi Libya)

2021 ◽  
Vol 1 (2) ◽  
pp. 63-74
Author(s):  
Desi Yunitasari
Keyword(s):  
United States ◽  
International Law ◽  
Recipient Country ◽  
Secondary Data ◽  
The United States ◽  
Vienna Convention ◽  
International Obligation ◽  
Injured Party ◽  
The Government ◽  
Legal Consequences

The development of human history has proven that relations between countries are inevitable and are a necessity and often cause conflicts. Along with its development, an unavoidable event is an increase in violations of the provisions of international law, especially with regard to the principle of persona grata where officials or diplomat representatives should get protection when it has been received and placed in the recipient country. As happened in mid-2012 namely regarding the bombing incident carried out through a rocket attack on the United States Embassy (Libya) Office, Libya, in Benghazi City, on September 11, 2012. The attack resulted in the Ambassador and three embassy staff killed. In research that uses normative juridical methods, it is necessary to use secondary data, such as books, laws, and research results on research topics to determine the extent of the legal consequences of the principle of persona grata that has been violated. Based on the results of the study explained that the Libyan Government is responsible for the incident because it fulfills two elements of state responsibility including act or omission that can be imputable to a country, and the act or omission constitutes a violation of an international obligation, especially regarding the principle of persona grata. The Government of Libya as the recipient country is obliged to be responsible based on the 1961 Vienna Convention Article 22 Paragraph (2). As the injured party, the United States can hold the Libyan government diplomatically responsible, namely negotiations, bearing in mind that the benefits of negotiation settlement can be measured in all aspects.

The Membership of the United States in the International Labor Organization

1934 ◽  
Vol 28 (4) ◽  
pp. 669-684 ◽  
Author(s):  
Manley O. Hudson
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Labor Organization ◽  
International Labor Organization ◽  
Legal Questions ◽  
International Labor ◽  
The Government

Though representatives of the United States participated very actively in the drafting of the Constitution of the International Labor Organization in 1919, and though the first International Labor Conference was held in Washington under the presidency of the Secretary of Labor, the Government of the United States had no part in the work of the International Labor Organization during its first fifteen years. In consequence, the United States has hitherto held aloof from one of the most significant of the modern developments of international law. Fortunately, this situation has now been changed. On August 20,1934, the United States became the fifty-ninth member of the International Labor Organization. The steps by which this result has been achieved, and the problems growing out of it, present some interesting legal questions which ought not to escape attention.

PELANGGARAN PRINSIP PERSONA GRATA ATAS PENYERANGAN DUTA BESAR DITINJAU DARI PERSPEKTIF HUKUM INTERNASIONAL (STUDI KASUS PENYERANGAN DUTA BESAR AMERIKA SERIKAT DI BENGHAZI LIBYA)

2019 ◽  
Vol 1 (1) ◽  
pp. 49-59
Author(s):  
Desi Yunitasari
Keyword(s):  
United States ◽  
International Law ◽  
Recipient Country ◽  
Secondary Data ◽  
The United States ◽  
Vienna Convention ◽  
International Obligation ◽  
Injured Party ◽  
The Government ◽  
Legal Consequences

The development of human history has proven that relations between countries are inevitable and are a necessity and often cause conflicts. Along with its development, an unavoidable event is an increase in violations of the provisions of international law, especially with regard to the principle of persona grata where officials or diplomat representatives should get protection when it has been received and placed in the recipient country. As happened in mid-2012 namely regarding the bombing incident carried out through a rocket attack on the United States Embassy (Libya) Office, Libya, in Benghazi City, on September 11, 2012. The attack resulted in the Ambassador and three embassy staff killed. In research that uses normative juridical methods, it is necessary to use secondary data, such as books, laws, and research results on research topics to determine the extent of the legal consequences of the principle of persona grata that has been violated. Based on the results of the study explained that the Libyan Government is responsible for the incident because it fulfills two elements of state responsibility including act or omission that can be imputable to a country, and the act or omission constitutes a violation of an international obligation, especially regarding the principle of persona grata. The Government of Libya as the recipient country is obliged to be responsible based on the 1961 Vienna Convention Article 22 Paragraph (2). As the injured party, the United States can hold the Libyan government diplomatically responsible, namely negotiations, bearing in mind that the benefits of negotiation settlement can be measured in all aspects.

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