There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule percentage (less than 1%) of claimants have been granted refugee status; the rest have either been issued conditional visas, renewable every three months, or are held in detention facilities. Israel has adopted a number of strategies aimed at deterring incoming asylum-seekers, and suggestions of building a wall along the border with Egypt were first discussed publicly in 2007.

The proposed barrier is wrong for all sorts of reasons. It’s wrong because it will somehow manage to give Israel, with its 1017 km of land borders, roughly 1419 km of highly-securitized border fences designed to seal it off from its neighbours (whether they be at war or at peace), causing the country to increasingly resemble a fortified ghetto.[2] It’s wrong because a country that was founded by and for refugees should not spend hundreds of millions of dollars building doors for the sole purpose of slamming them in the faces of other refugees in desperate need of assistance.  It’s wrong because when Netanyahu claims the barrier is necessary to preserve Israel’s “Jewish and democratic character”, he tacitly reveals that the term is being used to mask nothing more than a concern for Israel’s ethnic composition.

But is the barrier illegal? There is precedent suggesting that it is not. In its ruling on the West Bank separation barrier, the International Court of Justice suggests that had the barrier been built within sovereign Israeli territory there would be no basis for a legal challenge.[3] This determination is explicitly made in the Israeli Supreme Court’s landmark ruling on that barrier.[4] And so, the act of erecting a border fence would not in and of itself seem to fall outside the legitimate exercise of state sovereignty. Of the dozens of separation barriers that have been or are being constructed around the world, from India to Saudi Arabia to the United States, I have not seen any successfully challenged on the basis of international law. Moreover, the government of Egypt has itself stated that it has no objections to the construction of the barrier, so long as it is built on Israeli territory.

There is, however, another element that must be considered when assessing the legality of the separation barrier. And to do so, we are required to look as far away as Australia. Australia takes one of the toughest stances in the world on illegal immigration; in 2001, it implemented a controversial policy (since suspended) called Pacific Solution designed to prevent asylum-seekers from lodging refugee claims by diverting them to islands that had been excised from Australia’s migration zone. As these claimants were not – at least formally – in Australian territory, Australia claimed that it was not obligated under the UN Convention Relating to the Status of Refugees (Refugee Convention) to protect them or even hear their claims, and that it was free to deport them to third countries.

A report prepared by A Just Australia and Oxfam argues compellingly that Pacific Solution does in fact violate Australia’s treaty obligations under the Refugee Convention by ignoring the principles of asylum and non-refoulement (the obligation not to expel or return refugees or claimants to places where they are likely to face persecution). Citing an article from the International Journal of Refugee Law, the report states:

[…] in Australia “non-refoulement has come to mean non-rejection at the border.” However, while refugees who were placed on Nauru and Manus Island may not have been rejected at the border, the fact that many were ultimately sent back to dangerous situations where they faced persecution falls under the category of refoulement.[5]

Moreover, the report notes, Pacific Solution “[denied] asylum-seekers who are clearly traveling to Australia […] the right to claim asylum in Australia.”[6] This is problematic, because “it [essentially says that] you cannot seek asylum here in Australia. […] You can’t physically exclude asylum-seekers getting into your territory and say that you’re complying with the [Refugee Convention].”[7] While not admitting that the policy was contrary to international law, government members have since acknowledged that Pacific Solution “tarnished Australia’s international human rights reputation.”

Israel, like Australia, is a party to the Refugee Convention. In fact, Israel was one of the Convention’s leading proponents when it was signed in 1951. I would argue that Israel, like Australia, has a general obligation to allow asylum-seekers wishing to apply for refugee protection on its territory to do so, and further, that forcing claimants at the border to turn back to Egypt violates the principle of non-refoulement. It is true that, unlike Pacific Solution, the proposed barrier is a passive rather than active means of exclusion; however, its consequences for asylum-seekers are virtually the same. While countries have the legal right to build walls to protect themselves from terrorism, smuggling, or illegal entrance by economic migrants, building a wall primarily to prevent asylum-seekers from lodging refugee claims certainly violates the spirit (if perhaps not the letter) of the Refugee Convention and customary international law.

Israel, like many other countries in the region and in the world, is dealing with a serious refugee crisis, and the current trends are not sustainable. It needs to work with the international community to find solutions that fit within an appropriate legal and normative framework. Building a wall designed to altogether seal the border to asylum-seekers is not one of them.

–

Daniel Haboucha interned as a Claims Coordinator at the African Refugee Development Center in Tel Aviv, Israel during the summer of 2010.

[1] http://www.independent.co.uk/news/world/middle-east/israel-orders-new-fence-to-keep-out-african-migrants-1864827.html.

[2] According to the CIA’s World Factbook (https://www.cia.gov/library/publications/the-world-factbook/geos/is.html), Israel’s border with Egypt is 266 km; with Gaza 51 km; with Jordan 238 km; with Lebanon 79 km; with Syria 76 km; and with the West Bank 307 km. According to B’tselem (http://www.btselem.org/english/Separation_Barrier/Statistics.asp), the length of Israel’s West Bank separation barrier is 709 km, due to its frequent incisions into the West Bank.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136 (ICJ) at para. 68.

[4] Beit Sourik Village Council v. The Government of Israel (2004) HCJ 2056/04 (Beit Sourik) at para. 10.

[5] Bem, Kazimierz et al. “A Price Too High – the cost of Australia’s approach to asylum seekers” (August 2007) at p. 45. Retrieved from http://www.ajustaustralia.com/resource.php?act=attache&id=213.

[6] Ibid. at p. 46.

[7] Ibid. citing Mitchell and Henry.

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts an old fashioned “slicking”. But as any eighth-grader who gets caught TP-ing someone’s house because my friend Alan can’t keep his mouth shut knows, there must be a time for cleaning up as well. Unfortunately, international law provides few answers about who is responsible for cleaning up international spills.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter explicitly excludes any “wastes derived from the exploration and exploitation of sea-bed mineral resources”. As a result, it will likely not apply to oil spills. The UN Convention on the Law of the Sea is more promising. It specifies at article 194 that “states shall take […] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source”, and specifically, “pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil”. However, for the U.S. oil spill UNCLOS is of limited value because America has not ratified the treaty. Instead President Reagan in 1983 directed government agencies to treat most parts of the treaty as customary law.

Beyond the realm of international treaties, much of the regulation of the offshore oil industry is carried out by special national regulators. These include the U.S.’s Minerals Management Service (MMS), the Norwegian Petroleum Directorate, Britain’s Health and Safety Executive, and Australia’s Department of Minerals and Petroleum Resources. In Canada the Canada-Newfoundland Labrador Offshore Petroleum Board (CNLOPB) regulates the industry, since Newfoundland-Labrador is the only province where offshore drilling currently occurs.

National offshore oil regulators do little to coordinate standards with one another. They lack even uniform sex and drugs corruption standards. A prominent example is the absence of coordinated regulations requiring the presence of an “acoustic switch” on offshore rigs. This is a failsafe device which can be remotely (and reliably) used to close off a gushing well on the sea floor in the event of an accident – such as that on the Deepwater Horizon rig. Acoustic switches are required on rigs in Norway, Brazil, and Canada, and they are present in British operations in the North Sea. Yet in a 2003 report to the MMS, requiring acoustic switches was not recommended because “they tend to be very costly”. As a result, acoustic systems are not present on American rigs.

The lack of coordination between oil regulators stands in stark contrast to the kind of international cooperation seen in other industries. IOSCO, the International Organization of Securities Committees, allows national (and provincial) securities regulators to unify policy approaches, while central banks are currently negotiating their third set of global banking standards through the Switzerland-based Basel Committee.

With the ever-increasing global demand for oil, offshore spills affecting multiple countries will likely be inevitable. Some day China will catch up with the pros in this respect, leaving behind their current small-town spills. But if oil-producing countries and their national regulators don’t do more to agree on standards for preventing and cleaning up international spills, then the international dimension of spills will remain one-sided. In that respect, perhaps all of the offshore oil producers will remain amateurs.

BUSH LEAGUE

The Australian Court decided that international anti-competitive activity which takes place wholly outside of Australia may still influence the Australian market, and thus Australian law may possibly apply. It should be noted that this approach is by no means unique or new, as other domestic antitrust authorities are empowered by law to prosecute international anti-competitive activity.[1] But when examining the above-mentioned tension between the two conflicting forces, domestic regulation and an international problem, a more complex picture is revealed.

On the one hand, it is true that due to the lack of an international governing body or antitrust prosecution authority, the Australian authorities do not have much choice but to try and regulate international anti-competitive activity which affects Australian markets.  On the other hand, such an approach is not without consequences. Leaving the prosecution of international anti-competitive conduct to local antitrust authorities is both inefficient and somewhat inappropriate. First, domestic regulation of international anti-competitive conduct is often focused on domestic interests rather than on the interests of the international community as a whole. It may therefore endorse commercial practices that although beneficial to the local market, are harmful for others (the example of export cartels is one often given in this regard). Furthermore, domestic authorities may find it extremely difficult to investigate anti-competitive activity which occurs in several countries.

Secondly, it is problematic to argue that international enforcement by any single State is appropriate, especially when, for example, such action may be considered as a violation of another state’s sovereignty[2] (or as some describe it, “overregulation”[3]). One State’s standards concerning what is wrong and what is right may not coincide with those of another, and as one prominent author once said: “No one has elected the United States or the European Union [or Australia in this case, AK] to be enforcer for the world”.[4]

Arguably, this is a “lose-lose” situation in which both alternatives may bring about difficulties. The obvious solution to this problem is at least theoretically simple, and can be found in the shape of international regulation. The reality however shows that starting from 1948, almost all attempts made towards the international regulation of this field have either completely failed[5] or ended as non-binding “recommendations”.[6] A broader review of this situation reveals an even sadder picture, as despite efforts made by the European Union, this topic is currently not even being discussed. At the WTO Cancun Ministerial Conference and later at the Doha’s “July decision” this issue was completely removed from the international negotiations table.[7]

The existence of bilateral cooperation agreements indeed helps, but by no means solves the entire problem. International co-operation agreements between domestic competition authorities usually involve the exchange of information, informal connections and as reported by the OECD,[8] “surprise investigations” and raids in recent years. However, it should be noted that the main objective of these agreements is usually the protection of domestic markets, i.e. each State is still concerned only with its own local markets and the State’s operation is usually limited to its own market’s best interests. “International thinking” and governance are therefore still missing from the process.

“I found out that if you are going to win games, you had better be ready to adapt”

– Scotty Bowman, Hockey Legend

The international community is rightfully rushing toward financial globalization; despite popular critiques, there is no doubt that the opening of markets, the increase in cross-border investments and the ensuing financial integration have all brought about great prosperity, including for developing countries (India and China are two incredible examples). But it appears that in the race forward, the introduction of some of the rules which are so necessary for the sustainability of this new globalised environment has been forgotten. The new world requires new rules, and until a proper international policy is established, it seems that the field of international antitrust law will remain some sort of a “wild west”, where each town sets its own laws and hangs its own criminals.

In order to treat an international problem, the world’s nations should establish an international supra-governmental body to develop international policies and conduct international enforcement. That may seem politically unlikely for the moment, but as the exposure of states to international markets increases, the need for proper regulation is becoming more imminent. Hopefully, a proper international action will follow.

[2] Weinrauch, Roland. Competition Law in the WTO: The Rationale for a Framework Agreement (Graz:

Neuer Wissenschafts-Verlag, 2004) [Weinrauch] at 76.

[3] Andrew T. Guzman, “Public Choice And Regulatory Competition” (2002) 90 Geo. L.J. 971 at 973.

[4] Eleanor M. Fox, “International Antitrust and the Doha Dome” (2003) 43 Virginia Journal of International

Law 911 at 924.

[5] See attempts made within the WTO framework.

[6] See attempts made within the UN or OECD frameworks.

[7] WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/579,

August 2004, online: WTO

<http://www.wto.org/english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm>

[8] OECD, Hard Core Cartels: Third report on the implementation of the 1998 Council Recommendation

(Paris: OECD 2005) online: OECD <http://www.oecd.org/dataoecd/58/1/35863307.pdf > at 31.