According to a recently-released European Commission staff working document, the U.S. Electronic System for Travel Authorization (ESTA) is not “tantamount to the … visa … process” required for admission to the European “Schengen Zone”, and therefore does not give cause for the imposition of reciprocal visa requirements for US citizens seeking to enter Schengen countries.

That’s may be correct. But the EC appears to have asked the wrong question: the ESTA is not an entry permit but an exit permit scheme — which is a much more fundamental violation of human rights, U.S. treaty obligations, and the sovereignty of European and other countries from which people might wish to travel to the U.S.

The same is true of other U.S. travel control schemes (including the APIS and Secure Flight regulations), the proposed European PNR regulations, and the “carrier responsibility” rules in both the U.S. and the E.U.  Regardless of whether it is referred to as “travel authorization”, “pre-departure clearance”, or “permission to transport”, the only meaningful way to construe a “travel authorization” that isn’t an entry visa is as a de facto exit visa.

Is ESTA a visa program? The ESTA regulations are explicit that approval of a “travel authorization” does not constitute permission to enter the U.S.  It is only permission to “travel to” the U.S., and is required prior to “embarkation for” the U.S.  This language is meaningful only if ESTA approval is interpreted as, in effect, an exit visa required to be approved by the U.S. government before a would-be traveler is “authorized” by the U.S. government to depart from their home country (or any other country), if their intended destination is in the U.S.

For what it’s worth, it’s unclear if an ESTA is actually required.  As we pointed out in our comments on the ESTA proposal, there are serious questions as to whether the DHS has jurisdiction, authority, or “boots on the ground” at points of embarkation on foriegn countries to impose such a requirement, and about whether the DHS has complied with the procedural notice and comment rules applicable to such a rulemaking.  The DHS published a “notice” saying that ESTA approval would become mandatory as from January 12, 2009.  But that notice itself complied with none of the requirments for a binding rule, and failed to specify any enforcement mechanism or sanctions for noncompliance.

The only place there might be any rule actually implementing an ESTA requirment as a condition of embarkation for the U.S. is in the secret “security directives” issued by DHS to airlines. Discussing the ESTA notice in one of his last posts to the DHS blog, outgoing Secretary of Homeland Security Chertoff said last month that:

If a traveler fails to obtain an ESTA, he or she may be denied boarding, experience delayed processing, or be denied admission to the United States.

Chertoff’s use of “may” rather than “will” suggests that the ESTA requirement may be like the “requirement” to show ID credentials to board domestic flights within the U.S., where the DHS website and notices in every airport said that ID was “required” even while DHS lawyers told the Federal courts, and the judges who (in secret) reviewed the security directives agreed, that no ID was actually required by any U.S. law or regulation.

So ESTA approval may not really be required.  But it’s worth looking at the legality, and the implications, of such exit permit rules and their implementation, because other such requirements — particularly the APIS rules for travel to the U.S. and the “carrier responsibility” rules in the U.S., Canada, and E.U. — are already in effect, and others such as the European Commission proposal for a PNR-based traveler profiling scheme remain under consideration.

Why are these exit permits worse than entry visas?

1. While international law gives countries substantial discretion over which foreigners to allow to enter, the right to leave any country is almost unconditionally protected by Article 12, Section 2 of the International Covenant on Civil and Political Rights, as ratified by the U.S. and most other countries: “Everyone shall be free to leave any country, including his own.”  As we pointed out in our comments on the U.S. APIS rules, any regulation that imposes conditions on the exercise of this right must be evaluated (as neither the APIS nor ESTA rules nor the proposed E.U. PNR scheme have been) against the standards established under the ICCPR.
2. A requirement to get one government’s permission before leaving (“embarkation” or “departure” from) some other country necessary involves the assertion by the permission-granting country of extraterritorial jurisdiction over actors and actions occurring on the territory of another country.  This should raise significant issues of sovereignty that can only be resolved by treaty.  But the U.S. obtained no treaty authorization from any other country before putting the international APIS rules into effect in February 2008, requiring individualized, per-passenger, per-flight, pre-departure permission (“clearance”) for all flights to the U.S. from anywhere in the world.  Similarly, the E.C. PNR proposal (which would potentially affect all flights to the E.U. from anywhere else in the world) has not been accompanied by any proposal for a treaty to give E.U. member states jurisdiction over aircraft seeking to depart from, but still on the territory of, other countries.
3. The destination country has no means to compel other countries to enforce, on the territory of the country of origin of a flight or vessel, the permission or embarkation rules of the destination country.  And even if the destination country has a few agents assigned to foreign ports of embarkation (such as the growing numberr of TSA “liaison officers” stationed abroad by the U.S.), they lack police powrs in those countries of embarkation. As a result, destination countries almost invariably require airlines and other transportation carriers to enforce such rules.  This is accomplished either through direct orders to carriers (e.g. the U.S. APIS rules, which explicitly forbid any airline from issuing a boarding pass for any passenger on a U.S.-bound flight, or allowing them or their luggage onboard, unless the carrier has received a specific “cleared” messaage for that passenger and flight) or through rules imposing liability and administrative fines on carriers who transport passengers who are found, on arrival, not to be admissable. These carrier liability rules, already in effect in the U.S., Canada, and E.U. members, effectively deputize airline personnel (and their contractors) as auxiliary immigration police. They force airlines to chosse between risking fines for transporting potentially inadmissable passengers, and violating their legal duty as common carriers (under national law and international aviation treaties) to transport all passengers paying the fare and complying with the rules in their published tariff. Of course, since most stateless or otherwise inadmissible passengers are unlikely to be able to sue an airline for refusal to transport them, airlines as profit-seeking commercial entities will almost always err on the side of refusal to transport passengers about whose possible admissibility to a destination country there is any doubt.

The implications of this shift from entry visas to travel (i.e. departure) permits, are worst, of course, for refugees and asylum seekers: it changes not just the time but also the place and person who makes the decision on their claim of asylum.

Asylum seekers should be able to escape from a country where they fear persecution, travel to another country, and then apply for asylum on arrival, once they are on the territory of, and subject to the jurisdiction (and protection) of a country of refuge, where their petition for asylum will be adjudicated by the authorities of the government of the country where they are seeking refuge.

Instead, exit permit and carrier liability rules require asylum seekers either to lie and/or obtain forged documents (as most bona fide asylum seekers these days do) in order to gain passage on a common carrier to safety, or declare their intention to seek asylum before departure, while they are still on the territory of, and subject to the jusrisdiction (and potential retaliation) of the country they are trying to flee.  (This is why the right to leave any country, as guaranteed by Article 12, Section 2 of the ICCPR, is often a matter of life or death for asylum seekers.) And their asylum claim will be evaluated and adjudicated (with de facto finality and without meaningful possibility of judicial review or appeal) by agents of the airline, functioning as de facto outsourced, offshored, commercial asylum judges. Worst of all, many airlines contract out check-in to local “ground handling” companies, often divisions of government-owned airport operating companies or other government, parastatal, or government-affiliated entities.  The result is that the power to block would-be asylum seekers ends up in the hands of employees or associates of the governments from which they are trying to flee.

In practice, these rules have already made airline check-in agents — not border guards — the most difficult of the barriers which victims of persecution must surmount in order to exercise their right to asylum.

In light of all this, it should be no surprise that exit and document requirements and carrier liability rules have been universally condemned by advocates for the rights of refugees and asylum seekers.  Amnesty Internaitonal has called the extra-territorial processing of asylum claims unlawful and unworkable, and has this to say about carrier liability rules:

International standards of refugee protection recognize that people genuinely fleeing human rights violations are often not in a position to obtain the proper documentation required to leave the country…. It is well established that it is unreasonable to demand that refugees have proper documentation. These carrier liability laws have the effect of obstructing people genuinely at risk from arriving in a safe country and seeking protection as a refugee.

Not only are carrier liability laws troubling from the point of view of refugee rights, they also pose serious problems for the carrier who wishes to avoid fines. Airlines now require employees such as check-in staff and cabin crew to make decisions on the legality of passengers’ travel arrangements.

Airline employees should not be expected to act as an immigration police force, making decisions which might put people’s lives in danger; that is the duty of governments. In practical terms, liability acts often lead companies to act in a discriminatory manner, singling out “suspicious” persons on criteria such as the passenger’s race.

Meanwhile, the U.N. High Commissioner for Refugees has said, in reference to proposals by the (European) Schengen countries:

Asylum-seekers who are refugees are by definition persons whose flight from their country of origin is typically marked by the unwillingness or inability of their governments to provide them with protection from persecution. Often the persecutor feared is the national authorities from whom a refugee may not safely be able to obtain a valid passport, necessary to obtain a visa to enter another country. Visa prerequisites such as the possession of an address in the country of refuge, monetary sums, a return air ticket or family ties are prerequisites a refugee will very often have, difficulty meeting….

States are increasingly enacting and enforcing visa requirements through airline personnel…. Forcing carriers to verify visas and other travel documentation helps to shift the burden of determining the need for protection to those whose motivation is to avoid monetary penalties on their corporate employer, rather than to provide protection to individuals. In so doing, it contributes to placing this very important responsibility in the hands of those (a) unauthorized to make asylum determinations on behalf of States (b) thoroughly untrained in the nuances and procedures of refugee and asylum principles, and (c) motivated by economic rather than humanitarian considerations. Inquiry into whether the absence of valid documentation may evidence the need for immediate protection of the traveller is never reached.