Amicus Curiae Brief — Sale v. Haitian Centers Council, Inc.

Supreine Court, U.S. Pp

FILED

; DEC 21 1992

No. 92-344 OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

GENE McNARY, COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, et al.,

Petitioners,

Vv.

HAITIAN CENTERS COUNCIL, INC., et al.,

Respondents.

On WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE ASSOCIATION OF THE BAR OF

THE CITY OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

MICHAEL LESCH

Counsel of Record

JOHN D. FEERICK

SIDNEY S. ROSDEITCHER

STEPHEN LEW

ROBERT P. LEwis

Attorneys for Amicus Curiae

The Association of the Bar of

the City of New York

42 West 44th Street

New York, New York 10036-6690

(212) 382-6664

‘BEST AVAILABLE COPY™

TABLE OF CONTENTS

Page

SE GE EEE oe ec te cee ce eee ili

INTEREST OF AMICUS CURIAE ............. |

SUMMARY OF ARGUMENT ............... 5

ARGUMENT

I. THE UNIVERSAL DUTY OF NON-

REFOULEMENT DOES NOT END AT A

NATION © BORDERS 2... cc ccc ccc cee 6

Il. STATE PRACTICE CONDEMNS

REFOULEMENT WHEREVER IT OCCURS .. 13

A. The Domestic Laws Of Other

Nations Recognize The Duty Of

Non-Refoulement Without Regard

To National Borders ............ 14

B. Regional Blocs Of Nations Have

Incorporated The Duty Of

Non-Refoulement Into Multilateral

a er ee a 17

+ Refoulement Has Been Condemned

By The United States Itself ........ 18

Il.

CONCLUSION

THE UNITED STATES INCORPORATED

THE DUTY OF WNON-REFOULEMENT

INTO U.S. DOMESTIC LAW BY

ENTERING INTO THE

1981 U.S.-HAITI AGREEMENT .........

o@eeee@es8&eeseeee#65qoe#&8be#8#s 8 2 a) = a eee

TABLE OF AUTHORITIES

Cases

Air Canada v. United States Dept. of Transp.,

843 F.2d 1483 (D.C. Cir. 1988) .......

B. Altman & Co. v. United States,

>

The Barcelona Traction, Light & Power Co.

(Belgium v. Spain), 1970 1.0.3.3 .......

Blum v. Bacon, 457 U.S. 132 (1982) .......

British Caledonian Airways, Ltd. v. Bond,

665 F.2d 1153 (D.C. Cir. 1981) .......

Committee of United States Citizens Living

in Nicaragua v. Reagan,

859 F.2d 929 (D.C. Cir. 1988) ........

Cook v. United States, 288 U.S. 102 (1933) ...

Dayton Bd. of Educ. v. Brinkman,

Ee

de Casariego v. Uruguay, Selected

Decisions Under the Optional Protocol

of the United Nations Rights Commission,

U.N. Doc. CCPR/C/OP/1, 92 (1981) ....

Page(s)

Page(s)

Dred Scott v. Sandford,

60 U.S. (19 How.) 393, 60 S.Ct. 691 (1857) 12

Filartiga v. Pena-lrala,

Ge ede TW Ge Ge BONED oc cece re sewen 7

Ford v. United States, 273 U.S. 593 (1927) ....... 24

Haitian Centers Council, Inc. v. McNary,

969 F.2d 1350 (2d Cir. 1992) ........... 15-16

Haitian Refugee Center, Inc. v. Baker,

949 F.2d 1109 (11th Cir. 1991), cert. denied,

— U.S. —, 112 S.Ct. 1245 (1992) .......... 20

In re Estate of Ferdinand E. Marcos Human

Rights Litigation Agapita Trajano, — F.2d —,

1992 U.S. App. LEXIS 26680 (9th Cir.

ge Se OPO eet ee eee ee 8

Japan Whaling Ass'n v. American Cetacean Society,

es Se 6 66 Obst ew keeceeue 23

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984), :

cert. denied, 470 U.S. 1003 (1985) .......... 7

United States v. Belmont,

ge ee 23

iv

United States v. Rauscher,

EE Ee ee ee ee

United States Dept. of Defense

v. Federal Labor Relations Authority,

685 F.2d 641 (D.C. Cir. 1982) ..........

Valley Forge Christian College

v. Americans United For Separation

of Church and State,

Ge es POG cc veces sb es oc ees

Statutes, Treaties and Other Instruments

Act to Amend the Canadian Immigration

Act, 1976 and the Canadian Criminal Code

in Consequence Thereof, S.C. 1988, ch. 36

IE, SD Wien SS wos woe escees

Agreement Effected by Exchange of Notes,

signed at Port-au-Prince, September 23, 1981,

T.LA.S. No. 10,241, 33 U.S.T. 3559 ........

American Convention on Human Rights,

November 22, 1969, art. 22(8) .............

Canadian Senate’s Standing Committee

on Legal and Constitutional Affairs,

Report on Bill C-84, 2d Sess., 33d

& a ere ee

Page(s)

Cartagena Declaration of Refugees,

1984-1985 Annual Report of the Inter-

American Commission on Human Rights

(OSEA/Ser. L/V/II.66/doc. 10, rev. 1) ..........- 10

Charter of the International Military Tribunal,

August 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 279 ..... 9

Convention Against Torture and

Other Cruel, Inhuman or Degrading

Punishment, December 9, 1975,

G.A. Res. 39/46, U.N. GAOR, Supp. No. 51,

ik BY 5 5» er ee 6

Convention on Refugee Problems

in Africa, Organization of African Unity,

September 10, 1969, art. II(3) ........----55: 18

Convention on the Prevention and

Punishment of the Crime of

Genocide, December 9, 1946, 78 U.N.T.S.277 ..... 6

Executive Order No. 12,324, 50 Fed.

Reg. 48,109 (September 29, 1981), reprinted

Pe ee ba eas bwtbeec eee seeues 22-23

International Convention on the

Elimination of All Forms of Racial

Discrimination, 660 U.N.T.S. 195 ............4.. 6

vi

Page(s)

International Convention on the

Suppression and Punishment of the Crime

of Apartheid, November 30, 1973,

a 6-7

Letter from the Dutch Minister of

Foreign Affairs, July 8, 1992,

no. 9110.15.0232 (regarding asylum

claim of Weshah Abdelhadi Wesha Gadallah) ...... 15

Presidential Proclamation (Lyndon B. Johnson),

19 U.S.T. 6257 (November 6, 1968) ......... 11-12

Proposed Interdiction of Haitian Flag

Vessels, 5S Op. Off. Legal Counsel 242 (1981) ..... 23

Refugee Act of 1980, Pub. L. No. 96-212,

94 Stat. 102 (1980), 8 U.S.C. § 1243 ........... 21

Report of United Nations High

Commissioner for Refugees, U.N. GAOR,

Supp. No. 12, U.N. Doc A/40/12 (1985) ........ 10

Res. 67(14) on Asylum to Persons in Danger of

Persecution, Committee of Ministers of the Council

of Europe (June 29, 1967) .................. 17

Slavery Convention of 1926,

September 25, 1926, 60 L.N.T.S. 253,

46 Stat. 2183, 2 Berans 607,

eee PE 04 £4 oS ans ek oe vase Cee 6

vil

Page(s)

Supplementary Convention on the

Abolition of Slavery, the Slave

Trade and Institutions and

Practices Similar to Slavery,

September 7, 1956, 266 U.N.T.S. 3,

18 U.S.T. 3201, T.I1.A.S. No. 6418 ............. 6

United States Senate Concurrent Res. 26,

135 Cong. Rec. S. 6354 (June 7, 1989)........ 18-19

United Nations Convention Relating to

the Status of Refugees, July 28, 1951,

189 U.N.T.S. 150, 19 U.S.T. 6259 .......... passim

United Nations Protocol Relating to the

Status of Refugees, October 4, 1967, 606

U.N.T.S. 277, 19 U.S.T. 6223,

28% 9 | Sere cee eee ee eee passim

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331,

T.S. No. 58 (1980), 8 I.L.M. 679 (1979)

entered into force January 27, 1980 .......... 8, 13

Miscellaneous

Bailey, Current and Future Legal Uses

of Direct Broadcast Satellites in

International Law, 45 La. L. Rev. 701

DE ob SO eer eeer been eK 60 04s oe 08 66s 7

Page(s)

Baker Rejects Asian Criticism of U.S.

Over Boat People, Reuters,

DPC rMEGEE SCE a4 Ss kek bbe seee ees 18

Bowett, The Law of International

ee ec whee 13

Carter and Trimble, /nternational Law

a MAI a Tia Cie ee a ee et 13

Crawford and Hyndman, Three Heresies in

the Application of the Refugee

Convention, vol. 1, no. 2 Int’! J.

ee 16

DeWind and Kass, Justice in El Salvador:

A Report of a Mission of Inquiry, 38

Record of the Association 112 (March 1983) ....... 2

2 Encyclopedia of the Holocaust

CLs CheR CES Ele ec det ess ease 20

Etzwiler, The Treatment of Asylum

Seekers at Ports of Entry and the

Concept of “International Zones,”

in The Effects of Carrier Sanctions

on the Asylum System (pamphlet published

by the Danish Refugee Council)

eae aS aris oid 6 as pie > e!e bole oa 16

ix

Page(s)

Foighel, The Legal Status of the Boat People,

48 Nordisk Tidsskrift for International Ret

DE ceseteee ween e ees eens ebb as 17

Goodwin-Gill, The Refugee in

International Law (1983)... . 2.6.6.5 5 50 eee eee 16

Hathaway, Postscript—Selective Concern:

An Overview of Refugee Law in Canada, 34

SR ED Be cee nec ce se et iwawns 15

Hellerstein, McKay and Schlam, Criminal

Justice and Human Rights in Northern Ireland,

43 Record of the Association 110

ee ee ee ee ee ee ee 2

Henkin, Foreign Affairs and the

ce Po ae eee a oe 23

Leh, Remedying Foreign Repression

Through U.S. Courts, 20 N.Y.U.J.

yy ee eS fll TEPER eT eee 7

Misra, The Implications of Interdiction at Sea,

Refuge 4 (March 1988)... 1.2.2... ee eee eee 16

Morse, While Six Million Died:

A Chronicle of American Apathy (1967) ......... 20

N.Y. Times, January 25, 1990, § lat5 ......... 19

Page(s)

Parker and Neylon, Jus Cogens:

Compelling the Law of Human Rights,

12 Hastings Int’l and Compl.

a EY bn ke od Wea we cect ees 9-10, 12

Refugee Reports, A Project of the

American Council for Nationalities

Service, vol. 9, no. 3 (March 18, 1988) ......... 18

Restatement (Third) of the Foreign

Relations Law of the United States

a ee 8, 13

Segal, Restructuring Canada’s Refugee

Determination Process: A Look at Bills

C-55 and C-84, 29(3) Les Cahiers de

ea ES ee eer eran 15

Thomas and Witts, Voyage of the Damned

Ba Bt Aa ee Oca a ere et Se ee ss we ot 20

Wash. Post, January 26, 1990, atAl8 .......... 19

Zabel, Orentlicher and Nachman, Human Rights

and the Administration of Justice in

Chile, 42 Record of the Association

ee ee he main y we gis we'd 2

xi

No. 92-344

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

GENE McNARY, COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, et ai.,

Petitioners,

Vv.

HAITIAN CENTERS COUNCIL, INC., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COuRT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE ASSOCIATION OF THE BAR OF

THE CITY OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE”

Amicus Curiae The Association of the Bar of the City

of New York (the “Association”) has a great interest in the

“question presented in this case: whether the United States

may summarily return Haitian aliens to Haiti, who have been

/ The parties have consented to the filing of this brief. Letters of

consent are on file with the Clerk of the Court, pursuant to Rule 37.3 of

the Rules of this Court.

intercepted on the high seas, without making individualized

determinations regarding the validity of their asylum claims

as required by both international and domestic law.

The Association is a professional association of

approximately 19,000 lawyers throughout the United States

and in over forty other countries. Since its inception in 1870,

the Association has been dedicated to the preservation and

advancement of the rule of law and the fair administration of

justice. The scope of the Association’s concern with justice

has not been limited to the confines of the City of New York

but extends beyond local borders.

For many years, the Committee on International

Human Rights has been a standing committee of the

Association. A 1985 Resolution of the Association states that

“the Association of the Bar of the City of New York affirms

its support for the Rule of Law in the international

community ...” In its efforts to promote the rule of law, the

Association has issued reports on international agreements and

pending United States legislation relating to international

human rights; filed amicus briefs in relevant court cases;

intervened on behalf of foreign lawyers and judges who have

been persecuted or imprisoned for exercising their

professional responsibilities; and sent delegations to

investigate human rights conditions in countries throughout

the world and published the reports of their findings.”

2% See, e.g., DeWind and Kass, Justice in El Salvador: A Report of a

Mission of Inquiry, 38 Record of the Association 112 (March 1983);

Zabel, Orentlicher and Nachman, Human Rights and the Administration

of Justice in Chile, 42 Record of the Association 431 (May 1987);

Hellerstein, McKay and Schlam, Criminal Justice and Human Rights in

Northern Ireland, 43 Record of the Association 110 (March 1988).

This case is of vital importance to the Association.

The Association respects and supports the universally

accepted principle of non-refoulement, i.e., the prohibition

against returning bona fide refugees against their will to their

oppressors. This fundamental principle has long been

embodied in customary international law as well as in

multilateral treaties and bilateral agreements to which the

United States is a party.

The end of the “Cold War” has not, unfortunately,

resulted in a decrease in civil strife. On the contrary, long-

seething animosities, formerly contained by the totalitarian

regimes recently toppled throughout the world, have surfaced,

resulting in floods of refugees all over the world. All civilized

nations must meet the challenge of ensuring that the rights of

innocent refugees are protected.

Yet, the universal prohibition against non-refoulement

is meaningless unless refugees are provided an opportunity to

present their case that they are, in fact, bona fide refugees,

i.e., that they harbor a well-founded fear of persecution in

their home countries. Accordingly, as an organization of

lawyers concerned with the enforcement of international law

and treaty obligations and with the principle of due process of

law, the Association is especially troubled by the

Government’s argument that the United States can circumvent

the duty of non-refoulement by intercepting Haitian refugees

before they reach the territory of the United States and

summarily returning them to Haiti without affording them the

opportunity to establish their status as refugees entitled to

asylum. The answer to the question of whether the United

States can thus evade its international humanitarian

obligations bears directly on the larger question of whether

the community of nations will abide by the principle of non-

refoulement in this crucial juncture in the history of nations.

The Association, therefore, strongly supports the

arguments made by the respondents and other amici that the

United States may not summarily return Haitian refugees

interdicted on the high seas. The Association, in fact, in a

letter dated July 21, 1992, urged President Bush to reverse

the United States’ policy of returning Haitian refugees without

a hearing on the ground that the policy violates international

and domestic law. In this amicus brief, the Association

demonstrates that the United States’ duty of non-refoulement

under international and domestic law is not limited to the

territory of the United States; it imposes obligations on the

United States wherever it acts.

SUMMARY OF ARGUMENT

Petitioners assert that, by intercepting Haitian aliens

on the high seas before they reach United States territorial

waters, the duty of non-refoulement may be avoided. We

respectfully submit that the United States is bound by the duty

of non-refoulement wherever the Government may act,

whether within the United States itself, in its territorial

waters, on the high seas or on foreign soil. The prohibition

against refoulement constitutes a jus cogens norm of

international law, binding on all nations, in all places, and at

all times (Point I infra). Non-refoulement is a universal duty:

it has been recognized in the domestic laws of our sister

nations, in international human rights agreements, and in

statements of policy by United States officials (Point II infra).

In fact, because the United States has also expressly assumed

the duty of non-refoulement in an agreement with Haiti, the

duty is part of United States domestic law (Point III infra).

ARGUMENT

I. THE UNIVERSAL DUTY OF NON-REFOULEMENT

DOES NOT END AT A NATION’S BORDERS

The prohibition against returning a person to a poten-

tial oppressor—embodied in Article 33 of the “Refugee

Convention”*’—is part of a larger and growing body of inter-

national human rights law which recognizes fundamental

limitations upon the conduct of all nations in their dealings

with individuals, whether citizens or aliens.

Prior developments in this law include (1) the ban on

slavery, see, the Slavery Convention of 1926, 60 L.N.T.S.

253, 46 Stat. 2183, 2 Berans 607, T.S. 778 (1929), and the

Supplementary Convention on the Abolition of Slavery, the

Slave Trade, and Institutions and Practices Similar to Slavery,

September 7, 1956, 266 U.N.T.S. 3, 18 U.S.T. 3201,

T.LA.S. No. 6418, (2) the outlawing of genocide, see, the

Convention on the Prevention and Punishment of the Crime

of Genocide, 78 U.N.T.S. 277, (3) the prohibition against

torture, see, the Convention Against Torture and Other Cruel,

Inhuman or Degrading Punishment, December 9, 1975, G.A.

Res. 39/46, U.N. GAOR, Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 at 6, and (4) the condemnation of state-

imposed racial discrimination or apartheid, see, the

International Convention on the Elimination of All Forms of

Racial Discrimination, 660 U.N.T.S. 195, and the

International Convention on the Suppression and Punishment

¥ —_ United Nations Convention Relating to the Status of Refugees, July

28, 1951, 189 U.N.T.S. 150, 19 U.S.T. 6259.

of the Crime of Apartheid, November 30, 1973, 1015

U.N.T.S. 244.

The underlying premise of these international conven-

tions is that certain practices are so abhorrent that they may

not be permitted anywhere in the world. See, e.g., Filartiga

v. Pena-lrala, 630 F.2d 876, 878 (2d Cir. 1980) (“deliberate

torture perpetrated under color of official authority violates

universally accepted norms of the international! law of human

rights, regardless of the nationality of the parties”). No nation

may engage in such practices, and an individual’s right to

protection from them does not begin or end with the borders

of any particular state. See, Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 781 (D.C. Cir. 1984), cert. denied,

470 U.S. 1003 (1985) (Edwards, J., concurring)

(“commentators have begun to identify a handful of heinous

actions — each of which violates definable, universal and

obligatory norms”).

One commentator has stated the point thus:

Under international customary law, a country

is not free to commit violations of human

rights within or without its borders.

Leh, Remedying Foreign Repression Through U.S. Courts, 20

Int'l L. & Pol. 405, 458 (1988) (emphasis added). See also,

Bailey, Current and Future Legal Uses of Direct Broadcast

Satellites in International Law, 45 La. L. Rev. 701, 717

(1985) (“the protection of basic human rights irrespective of

national borders has become customary international law”)

(emphasis added). -

At least two Courts of Appeals have recognized that

basic human rights protections, in fact, constitute jus cogens

or peremptory norms. See, In re Estate of Ferdinand E.

Marcos Human Rights Litigation Agapita Trajano, — F.2d

—, 1992 U.S. App. LEXIS 26680 (9th Cir. October 21,

1992) (torture is clear violation of jus cogens norm);

Committee of United States Citizens Living in Nicaragua v.

Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988) (hereinafter

“CUSCLIN”). A jus cogens norm “enjoy[s] the highest status

within international law.” CUSCLIN, 859 F.2d at 940.

Unlike an ordinary norm of customary international law, a jus

cogens norm is a “norm from which no derogation is

permitted.” Vienna Convention on the Law of Treaties, May

23, 1969, 1155 U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M.

679 (1979), entered into force January 27, 1980, art. 53. See

also, Restatement (Third) of the Foreign Relations Law of the

United States (1987) (hereinafter “Restatement (Third)”), §

102, comment k (“some rules of international law are

recognized by the international community of states as

peremptory, permitting no derogation.”); § 102, comment j;

§ 331, comment e, Reporters’ Note 4 (discussing peremptory

norms that are of superior status and which cannot be affected

by treaty).

In CUSCLIN, the D.C. Circuit noted that the “funda-

mental hurnan rights law that prohibits genocide, slavery,

murder, torture, prolonged arbitrary detention, and racial

discrimination” constituted one of the few categories of norms

that “arguably do meet the stringent criteria for jus cogens.”

859 F.2d at 941. Accord, Restatement (Third), § 702. The

Court of Appeals further stated that:

Such basic norms of international law as

the proscription against murder and slavery

may well have the domestic legal effect that

appellants suggest. That is, they may well

restrain our government in the same way that

the Constitution restrains it. If Congress

adopted a foreign policy that resulted in the

enslavement of our citizens or of other

individuals, that policy might well be subject

to challenge in domestic court under

international law.

Id.

That certain fundamental norms, such as jus cogens

norms, transcend the consent of states was articulated during

the Nuremberg trials following World War II. The

international tribunal formed by the United States and other

Allied nations found that certain “crimes against humanity,”

including murder, deportation or other persecution based on

political or racial grounds, could be punished under

international law “whether or not in violation of the domestic

law of the country where perpetrated.” See, Charter of the

International Military Tribunal, August 8, 1945, 59 Stat.

1546, 82 U.N.T.S. 279. Similarly, the International Court of

Justice, in The Barcelona Traction, Light & Power Co.

(Belgium v. Spain), 1970 1.C.J. 3, 32, held that “the basic

rights of the human person” are so important that they

represent obligations of the states towards the international

community as a whole.“

The right of non-refoulement has become one of the

human rights norms recognized as jus cogens:

The principle of non-refoulement, usually

referred to only in its refugee law application,

is also part of human rights law and

humanitarian law, and is acknowledged as a

jus cogens norm. The jus cogens nature of the

right of non-refoulement is especially apparent

because the later [sic] doctrine imposes obli-

gations on states not involved in the acts that

lead to the flight of the victim ... However, in

all its applications, the right of non-

refoulement, like all jus cogens norms, exists

outside of treaties, and is non-derogable,

binding and judicially enforceable.

Parker and Neylon, Jus Cogens: Compelling the Law of

Human Rights, 12 Hastings Int’l and Compl. L. Rev. 411,

435-36 (1989) (footnotes omitted). See also, Report of United

Nations High Commissioner for Refugees, 40 U.N. GAOR,

Supp. No. 12 at 6, U.N. Doc. A/40/12 (1985) ("Due to its

repeated reaffirmation at the universal, regional and national

levels, the principle of non-refoulement has now come to be

characterized as a peremptory norm of international law.“);

Cartagena Declaration on Refugees, 1984-1985 Annual

Report of the Inter-American Commission on Human Rights,

at 177-182 (OEA/Ser. L/V/II.66/doc. 10, rev. 1), conclusion

5 (Non-refoulement is “a cornerstone of the international

protection of refugees. This operative principle concerning

refugees should be recognized in the present state of

international law, as a principle of jus cogens.”)

Significantly, the Refugee Convention originally did

contain an optional geographic (and temporal) limitation,

restricting application of the convention to persons made

refugees because of “events occurring in Europe before |

January 1951.” See, the Refugee Convention, Art. I, Section

B(1)(a). To suggest that the United States’ duty of non-

10

refoulement is somehow geographically limited, petitioners

disingenuously cite various portions of the original Refugee

Convention reflecting that option.’ The United States,

however, was not a party to the original Refugee Convention,

and needless to say, never exercised the option to limit its

scope. In fact, the option to restrict the Refugee Convention’s

application to Europe was—as far as the United States and

other new parties were concerned—eliminated in the 1967

United Nations Protocol Relating to the Status of Refugees

(hereinafter the “1967 Protocol”). See, the 1967 Protocol,

October 4, 1967, 606 U.N.T.S. 277, 19 U.S.T. 6223,

T.1.A.S. 6577, Art. 1(3) (“The present Protocol shall be

applied by the States Parties hereto without any geographic

limitation, save that existing declarations made by States

already Parties to the Convention in accordance with article

1B(1)(a) of the Convention, shall, unless extended under

article 1B(2) thereof, apply also under the present Protocol”)

(emphasis added).*’ In any event, the United States acceded

See, e.g., Brief for the Petitioners at 41.

2 Petitioners assert that Article 40 of the original Refugee Convention,

rather than Article 1(B)(1)(a), controls the issue of territonal application

and that Article 40 was left unchanged by the 1967 Protocol (see, Art. 7.4

thereof). However, Article 40 only permits (indeed encourages) a state to

extend the obligations of the Refugee Convention to “all or any of the

territories for the international relations of which [the state] is responsible”

(Art. 40(1)). Article 40 does not provide that the state may limit its own

duties under the Refugee Convention. Thus, while Article 40 would allow

the United States to bind, for example, Puerto Rico, to the convention, it

does not permit the United States to absolve itself of responsibiiity for its

actions merely because they may have occurred outside the United States

itself. For further discussion of the petitioners’ mistaken reliance on

Article 40, see generally, the Brief of Amicus Curiae United Nations High

Commissioner for Refugees in Support of Respondents, Point II(D).

11

to the 1967 Protocol with only two reservations, neither of

which objected to the unlimited geographic scope of the duty

of non-refoulement in light of the 1967 Protocol. See,

Presidential Proclamation (Lyndon B. Johnson), 19 U.S.T.

6257-58 (November 6, 1968).

In sum, the petitioners are gravely mistaken when they

seek a geographic limitation to the ban against refoulement.*

As a jus cogens norm, the prohibition is of universal

application, applying to every nation wherever it may act.

See, e.g., Parker and Neylon, 12 Hastings Int’! and Compl.

L. Rev. at 455 (“jus cogens obligations transcend national

boundaries”).

& The petitioners’ position is particularly perverse in that it revives the

long-discredited view that a person's human nghts depend upon

geography. It was, after all, the belief of the nineteenth-century southern

slave owners that the nght to freedom suddenly vanished south of the

Mason-Dixon line. Moreover, the petitioners’ interdiction program bears

a disturbing similarity to the practices of that era. Then, too, the federal

government returned oppressed and women to their persecutors. See,

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 60 S.Ct. 691 (1857)

(Campbell, J., concurring) (“The Federal Constitution [the fugitive slave

clause} and the Acts of Congress [the fugitive slave laws] provide for the

return of escaping slaves within the limits of the Union”).

12

Il. STATE PRACTICE CONDEMNS

REFOULEMENT WHEREVER IT OCCURS

In determining the scope of Article 33(1)’s application,

full account must*also be taken of state practice since the

Refugee Convention went into effect. Article 31(1) of the

Vienna Convention on the Law of Treaties provides:

(1) A treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the

terms of the treaty in their context and in the light of its

object and purpose ...

(3) There shall be taken into account, together with

the context ... (b) any subsequent practice in the

application of the treaty which establishes the agreement

of the parties regarding its interpretation ...

(emphasis added). The “practice of states” may be gleaned

from several sources including (1) domestic statutes; (2)

judicial opinions and administrative decisions of the various

nations; (3) subsequent regional or international instruments

through which states participate in further specifying,

clarifying, pronouncing or developing shared norms to which

they assent; and (4) official statements of policy. See,

Restatement (Third), § 102, comment b; Carter and Trimble,

International Law 113-114 (1991); see generally, Bowett, The

Law of International Institutions (4th ed. 1982).

13

A. The Domestic Laws Of Other Nations

Recognize The Duty Of Non-Refoulement

Without Regard to National Borders

Many nations have incorporated Article 33(1)’s

prohibition against refoulement of political asylum seekers

into domestic statutory provisions which expressly provide or

indicate that the norm applies regardless of whether a refugee

has entered national territory. See, Appendix (Belize, Bolivia,

Burundi, Canada, the Dominican Republic, Ecuador, Finland,

Lesotho, Malawi, Nicaragua, Nigeria, Peru, Spain, Sweden,

Switzerland;and Zimbabwe).

Tellingly, the recently-enacted Canadian refugee law

permits the Minister of Immigration to interdict ships outside

Canada’s territorial waters, in a contiguous zone, but only

once “all passengers who seek Convention refugee status and

are nationals or citizens of the country where the vehicle

embarked them have been removed from the vehicle and

brought into Canada.” An Act to Amend the Canadian

Immigration Act, 1976 and the Canadian Criminal Code in

Consequence Thereof, S.C. 1988, ch. 36 clause 8,

§ 91.1(1.1)(b) (Appendix, ¢ 4). An earlier version of the

Canadian legislation, which would have permitted the

Minister to interdict and turn away ships at sea without

inquiring into the passengers’ claims of refugee status, was

criticized and ultimately rejected by the Canadians as an

evasion of the duty of non-refoulement:

The Committee has ... concluded that ships

should not be turned around at sea but should

be brought to port ... The only appropriate

treatment for passengers who claim to be

refugees is speedy and just processing

14

according to the laws which apply to all

refugee claimants, whether they arrive by air,

land or sea.

Canadian Senate’s Standing Committee on Legal and

Constitutional Affairs, Report on Bill C-84, 2d Sess., 33d

Parl., 1986-87, 4 47, reprinted in Hathaway,

Postscript—Selective Concern: An Overview of Refugee Law

in Canada, 34 McGill L.J. 354, 355 n.2 (1989). See also,

Segal, Restructuring Canada’s Refugee Determination

Process: A Look at Bills C-55 and C-84, 29(3) Les Cahiers

de Droit 733, 758, 735. |

A recent administrative decision of the Netherlands

demonstrates that a state is bound by its Article 33 obligations

even in the territory of another state. In rejecting an

application for political asylum made at the Dutch embassy in

Kuwait (on a _ ground permitted by the Refugee

Convention),” the Netherlands acknowledged that it was

bound by the obligations of the Refugee Convention even on

foreign soil, namely, at its overseas embassy in Kuwait. See,

Letter from the Dutch Minister of Foreign Affairs, July 8,

1992, no. 9110.15.0232 (regarding asylum claim of Weshah

Abdelhadi Wesha Gadallah).

The actions of the above nations collectively establish

a State practice consistent with the Second Circuit’s findings

that “what is important under Article 33.1 is where the

refugee is to be returned fo ... without regard to where the

refugee is to be returned from[,]” and that “Article 33.1’s

4

’ The asylum applicant was eligible, as a Palestinian in the Middle

East, for assistance and protection from a United Nations agency. See, the

Refugee Convention, art. 1(D).

15

prohibition against ‘return’ plainly applies to ail refugees,

regardless of location.” Haitian Centers Council, Inc. v.

McNary, 969 F.2d 1350 (2d Cir. 1992) (emphasis in

original). See also, de Casariego v. Uruguay, Selected

Decisions Under the Optional Protocol of the United Nations

Human Rights Commission, U.N. Doc. CCPR/C/OP/1, 92,

94 (1981), 4 10.2 (in case involving claimant who was

forcibly abducted in Brazil by Uruguayan agents, United

Nations Human Rights Committee held that Article 1 of

Optional Protocol to the International Covenant on Civil and

Political Rights—providing “individuals subject to its

jurisdiction”—refers “not to the place where the violation

occurred, but rather to the relationship between the individual

and the State in relation to a violation of any of the rights set

forth in the Covenant, wherever they occurred.”) quoted in,

Etzwiler, The Treatment of Asylum Seekers ai Ports of Entry

and the Concept of “International Zones,” in The Effects of

Carrier Sanctions on the Asylum System (pamphlet published

by the Danish Refugee Council) (October 1991) at 19.”

A nation’s duty of non-refoulement does not stop at its

borders, because international human rights obligations “are

coextensive with States’ exercise of authority and jurisdiction,

and not solely with the geographic land mass that States

acknowledge as their ‘territory.’” Etzwiler, at 19. Moreover,

¥ Geography is irrelevant because, “in scrupulously observing non-

refoulement, the state [is] acting on behalf of the international

community.” Goodwin-Gill, The Refugee in International Law 119 0.81

(1983). See also, Crawford and Hyndman, Three Heresies in the

Application of the Refugee Convention, vol. 1, no. 2 Int’! J. Refugee L.

155, 171 (April 1989) (“The obligation of non-refoulement is an obligation

to or in respect of the individual refugee, or alternatively to the

international community as a whole.”).

16

.. when a state reaches out and exercises its authority and

jurisdiction on the high seas, “international law and the laws

of a flag-state (the state whose nationality a ship carries)

apply.” Misra, The Implications of Interdiction at Sea,

Refuge 4 (March 1988). Thus, United States Coast Guard

cutters necessarily carry with them, wherever they may go,

the international and domestic human rights obligations of the

United States. See, Foighel, The Legal Status of the Boat

People, 48 Nordisk Tidsskrift for International Ret 233 (1979)

(“the state of the flag cannot evade its liability for the persons

rescued, where a rescue operation has resulted in refugees

coming under the custody of the vessel”).

B. Regional Blocs Of Nations Have Incorpo-

rated The Duty Of Non-Refoulement

Into Multilateral Instruments

At least three regional multilateral instruments have

incorporated the principle of non-refoulement, demonstrating

that the duty transcends national borders. In 1967, the

Committee of Ministers of the Council of Europe recognized

the obligation of non-refoulement as follows:

[Member states should] ensure that no one

shall be subjected to refusal of admission at the

frontier, rejection, expulsion or any other

measure which would have the result of

compelling him to return to, or remain in,

territory where he would be in danger of

persecution[.]

Res. (67)14 on Asylum to Persons in Danger of Persecution

(June 29, 1967) (emphasis added). Similarly, in 1969, the

duty of non-refoulement was adopted by the Organization of

17

American States, see, the American Convention on Human

Rights, November 22, 1969, art. 22(8), and by the

Organization of African Unity, see, Convention on Refugee

Problems in Africa, September 10, 1969, art. II(3).

C. Refoulement Has Been Condemned

By The United States Itself

Significantly, refoulement by other nations has been

routinely condemned by the United States in official state-

ments of policy. For example, in criticizing the “push-backs”

of Vietnamese boat people into the sea by Asian nations,

Secretary of State James Baker said: “It is no secret we do

not support involuntary repatriation.” Baker Rejects Asian

Criticism of U.S. Over Boat People, Reuters, July 26, 1990.

In 1988, the U.S. Ambassador to Thailand, William A.

Brown, sent a letter to that nation’s foreign minister calling

for an end to push-backs of Laotian refugees. Refugee

Reports, A Project of the American Council for Nationalities

Service, vol. 9, no. 3 (March 18, 1988). The following year,

the Senate passed Concurrent Resolution 26 urging first

asylum countries of the Association of Southeast Asian

Nations to reinstate the practice of providing refuge to all

asylum seekers and pointing out that “given Vietnamese

attitudes toward illegal departure, forced repatriation of

refugees to Vietnam should not be considered a viable

18

option.” 135 Cong. Rec. S. 6354 (June 7,1989) (emphasis

added).

In 1990, the Bush administration actually led the

international community in denouncing Great Britain’s policy

of forcibly returning Vietnamese refugees who had fled to

Hong Kong. Condemning involuntary repatriation “in

principle and in practice,” the United States called for a one-

year moratorium on repatriation and “full international

monitoring of the process leading to any mandatory return.”

N.Y. Times, January 25, 1990, § 1 at 5. This strong stand

was taken by the United States even though the British policy,

unlike the current United States policy toward Haitians,

required that all Vietnamese refugees be interviewed to

determine the substance of their claims. Only those

determined to be economic migrants, as opposed to political

asylees, were repatriated by the British. See, Wash. Post,

January 26, 1990, at A18.

It should be noted that many of the push-backs of

Vietnamese refugees did not actually result in refoulement,

because the asylum-seekers were not pushed all the way back

to the country where they faced political persecution. These

push-backs thus did not flagrantly violate Article 33(1) in the

way the Haitian interdiction program does, but were

nonetheless condemned by the United States.

In short, the duty of non-refoulement is not only a

universally recognized obligation, it is a duty which the

United States has repeatedly demanded that other nations

observe. The United States must demand no less of itself.

Indeed, in light of this nation’s shameful decision to turn

away Jewish refugees aboard the St. Louis and other ships

19

fleeing from Nazi Germany during World War II,” the

United States must fully discharge its duty towards the

Haitians to avoid further dishonor. As Judge Hatchett has

pointedly noted:

The United Nations Protocol on Refugees,

and the United States immigration laws which

execute it, were motivated by the World War

II refugee experience. Jewish refugees seeking

to escape the horror of Nazi Germany sat on

ships in New York Harbor, only to be

rebuffed and returned to Nazi Germany gas

chambers. Does anyone seriously contend that

the United States’ responsibility for the

consequences of its inaction would have been

any less if the United States had stopped the

refugee ships before they reached our

territorial waters? Having promised the

international community of nations that it

would not turn back refugees at the border, the

government yet contends that it may go out

into international waters and actively prevent

Haitian refugees from reaching the border.

Such a contention makes a sham of our

international treaty obligations and domestic

laws for the protection of refugees.

Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1112

(11th Cir. 1991), cert. denied, — U.S. —, 112 S.Ct. 1245

(1992) (Hatchett, J., dissenting) (emphasis in orginal).

y See, 2 Encyclopedia of the Holocaust 1412-13 (1990); Thomas and

Witts, Voyage of the Damned (1974); Morse, While Six Million Died: A

Chronicle of American Apathy (1967), ch. XV.

20

Il. THE UNITED STATES INCORPORATED THE

DUTY OF NON-REFOULEMENT INTO U.S.

DOMESTIC LAW BY ENTERING INTO

THE 1981 U.S.-HAITI AGREEMENT

The United States is also obligated to abide by the

principle of non-refoulement by its own domestic law—the

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 8

U.S.C. § 1243 (1980) see, Brief of Respondents, and the

provisions of the bilateral executive agreement signed with

the Government of Haiti; see, the Agreement Effected by

Exchange of Notes, signed at Port-au-Prince, September 23,

1981, T.I.A.S. No. 10,241, 33 U.S.T. 3559 (“1981 U.S.-

Haiti Agreement”).

The i981 U.S.-Haiti Agreement is a_ bilateral

application of the principal of non-refoulement. That

Agreement authorized the United States to return “detained

vessels and persons to a Haitian port” but expressly

acknowledged that, even on the high seas, the United States

was bound by “international obligations mandated in the

Protocol Relating to the Status of Refugees.” The 1981 U.S.-

Haiti Agreement states as follows:

Having regard to ... the international

obligations mandated in the Protocol Relating

to the Status of Refugees ... the United States

1! The Second Circuit did not reach or decide the issue of whether the

Kennebunkport Order is invalid under the 1981 U.S.-Haiti Agreement.

This Court has repeatedly held that respondents are “entitled under our

precedents to urge any grounds which would lend support to the judgment

below.” Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419 (1977). See

also, Blum v. Bacon, 457 U.S. 132, 137 u.5 (1982).

Government confirms with the Government of

the Republic of Haiti its understanding of the

following points ...

It is understood that under these arrangements

the United States Government does not intend

to return to Haiti any Haitian migrants whom

the United States authorities determine to

qualify for refugee status.

1981 U.S.-Haiti Agreement, at 1-2.

As explained above, the Refugee Convention uncondi-

tionally prohibits the return of a refugee “in any manner

whatsoever to the frontiers of territories where his life or

freedom wouid be threatened on account of his race, religion,

nationality, membership of a particular social group or

political opinion.” See, the Refugee Convention, as amended

by the 1967 Protocol, Art. 33.

The United States explicitly acknowledged its binding

obligation not to return any refugees interdicted on the high

seas to the country from which he flees persecution under

Executive Order No. 12,324, 50 Fed. Reg. 48,109

(September 29, 1981), reprinted in 8 U.S.C. § 1182. The

Order’s key provisions were Section 2(c)(3), which required

“that no person who is a refugee will be returned [to Haiti by

the Coast Guard] without his consent,” and Section 3, which

mandated that:

The Attorney General shall, in consultation with the

Secretary of State and the Secretary of the Department

in which the Coast Guard is operating, take whatever

steps are necessary to ensure the fair enforcement of

22

our laws relating to immigration ... and the strict

observance of our international obligations concerning

those who genuinely flee persecution in their

homeland. (Emphasis added).

Only one month earlier, the Justice Department’s own legal

counsel had examined the legality of the proposed interdiction

program to determine whether the INS plan “comports with

the Protocol.” The opinion concluded that, when interdicting

Haitians on the high seas, the United States was obliged

under Article 33 to ensure the “[i]ndividuals who claim that

they will be persecuted ... must be given an opportunity to

substantiate their claims.” Proposed Interdiction of Haitian

Flag Vessels, 5 Op. Off. Legal Counsel 242, 248 (1981)

(emphasis added).

As an executive agreement authorized by law, the

1981 U.S.-Haiti Agreement has the force of a treaty and is

enforceable in U.S. courts as domestic law. United States

Dept. of Defense v. Federal Labor Relations Authority, 685

F.2d 641, 648 (D.C. Cir. 1982); United States v. Belmont,

301 U.S. 324, 331 (1937); Henkin, Foreign Affairs and the

Constitution (1972), at 184-87; see also, B. Altman & Co. v.

United States, 224 U.S. 583, 601 (1912). Moreover, it is

beyond question that executive agency actions have long been

subject to judicial review on the merits for their conformity

with executive agreements. Air Canada v. United States Dept.

of Transp., 843 F.2d 1483 (D.D.C. 1988) (reviewing agency

action for consistency with United States-Canada executive

agreement); see also, Japan Whaling Ass’n v. American

Cetacean Society, 478 U.S. 221, 230 (1986) (reviewing

executive order for conformity with treaty); British

Caledonian Airways, Lid. v. Bond, 665 F.2d 1153, 1161-62

(D.C. Cir. 1981) (determining “whether FAA administrator

23

acted consistently with and followed the procedures mandated

by the various international agreements” is a question

requiring legal inquiry making judicial review appropriate).

It is also clear that, as individuals directly benefited by

the non-refoulement provisions of the 1981 U.S.-Haiti

Agreement, the Haitian refugees affected by the

Kennebunkport Order have standing to bring an action to

enforce the provisions of that Agreement. Where a treaty

protects a particular class of persons who claim injury (in this

case, Haitians interdicted by the United States on the high

seas), those persons should have standing to enforce the

treaty. See, Valley Forge Christian College v. Americans

_ United For Separation of Church and State, 454 U.S. 464,

475 (1982); see also, Cook v. United States, 288 U.S. 102

(1933) (individuals have standing to raise violations of

extradition treaties); Ford v. United States, 273 U.S. 593

(1927); United States v. Rauscher, 119 U.S. 407 (1886).

Therefore, the international duty of non-refoulement is

also an obligation of United States domestic law, which may

be raised by the victims of the unlawful Haitian interdiction

program.

24

CONCLUSION

For the foregoing reasons, the decision of the Court

of Appeals should be affirmed.

Respectfully submitted,

MICHAEL LESCH

Counsel of Record

JOHN D. FEERICK

President of the Association

SIDNEY S. ROSDEITCHER

Chair of the Association's

Committee on International

Human Rights

STEPHEN LEW

ROBERT P. LEwIs

Attorneys for Amicus Curiae

The Association of the Bar

of the City of New York

42 West 44th Street

New York, New York 10036-6690

(212) 382-6664

On the brief:

CATHERINE POWELL

JENNIFER M. GREEN

VIET DINH

JEFF DUFFY

JUNY FRANCOIS

BRUCE GOLDBERGER

JULIA HARRINGTON

25

JINSOO KIM

KENNETH R. LAMOTTE

RAISSA LERNER

ANDREW LEVIN

STEPHAN MCGRATH

ANGELIA MEANS

STEFAN SCHUPPERT

REBECCA SHARPLESS

MARIA STAVROPOULOU

Working in cooperation with

the Human Rights Program and

the Ford Fellowship in Public

International Law

Harvard Law School

Cambridge, MA 02138

26

APPENDIX

- eee eee

‘Domestic Statutory Provisions of Various

Nations Demonstrating Non-Refoulement

Extends Beyond National Frontiers~’

1. In Belize, the Refugees Act of August 24, 1991, Article

14(1) (emphasis added), provides:

Notwithstanding the provisions of any other law, no

person shall be refused entry into Belize, expelled,

extradited or returned from Belize to any other

country or be subjected to any similar measure if, as

a result of such refusal, expulsion, return or other

measure, such person is compelled to return to or

remain in a country where (a) he may be subjected

to persecution ...; or (b) his life, physical integrity

or liberty would be threatened ...

2. In Bolivia, Decreto Presidencial No. 19640, Articulo 5

[4 junio, 1983], provides:

La declaracién de refugiado concede al extranjero la

proteccién dispensada por el Estado que: consiste en

la no devolucion al pais, sea o no de origen, donde

su derecho a la vida o a Ia libertad personal esté en

riesgo de violacén a causa de los motivos sefialados

en los articulos 1 y 2, en virtud del principio

establecido en el articulo 33 de la Convencién de

1951 sobre el Estatuto de los Refugiados y en el

articulo 22, inciso 8, de Convencién Americana de

los Derechos Humanos y [...]rde con lo estipulado

en la Constitucién Politica del Estado, Titulo

Primero “Derechos y deberes fundamentales de la

- The text of the foreign language statutes which appear in this

Appendix in English translation only (Finland and Sweden) were

obtained from the REFLEG database of the United Nations High

Commissioner for Refugees.

a

Po

Persona” y Titulo Segundo “Garantias de la

Persona”.

(The declaration of refugees gives all aliens the

protection ... that consists of no-return to a country,

whether or not of origin, where her right to life or

personal liberty is at risk of violation caused by one

of the reasons indicated in articles 1 and 2, by virtue

of the principle established in article 33 of the 1951

Convention relating to the Status of Refugees and in

article 22, part 8, of the American Convention of

Human Rights and [...] the stipulation in the

Political Constitution of the State, Title 1 “Rights

and Fundamental Personal Obligations” and Title 2

“Personal Guarantees” .)

In Burundi, Decret-Loi No. 1/23 Du 9 Juillet 1982

rtant Reglementation de L’Acces Au Burundi, Du Sejour,

De L’Etablissement Et De L’Eloignement Des Etrangers, Titre

I]: Les Refugies - Chapitre 2: Non-Refoulement Des Refugies,

Article 32, provides:

4.

En aucun cas, l’étranger reconnu comme réfugié ne

peut étre renvoyé dans un pays ou son retour est

exclu en vertu de l’application du principe de non-

refoulement.

(In each case, an alien recognized as refugee cannot be

returned to a country where her return is prohibited by

virtue of the application of the principle of non-

refoulement. )

In Canada, An Act to Amend the Immigration Act, 1976

and the Criminal Code in Consequence Thereof, S.C. 1988,

|

;

|

|

ch. 36, § 8(1) [adding § 91.1(1.1) to the Immigration Act,

1976, S.C. 1976-77, ch. 52] (emphasis added), provides:

91.1(1) Subject to subsection (1.1), where the

Minister believes on reasonable grounds that a

vehicle within twelve nautical miles of the outer

limit of the territorial sea of Canada is bringing any

person into Canada in contravention of this Act or

the regulations, the Minister may direct the vehicle

not to enter the internal waters of Canada or the

territorial sea of Canada ...

(1.1) The Minister may make a direction under —

subsection (1) where the Minister is satisfied that

(a) the vehicle can return to its port of embarkation

without endangering the lives of its passengers;

(b) all passengers who seek Convention refugee status

and are nationals or citizens of the country where the

vehicle embarked them have been removed from the

vehicle and brought into Canada;

(c) the country where the vehicle embarked its

passengers is a signatory to the Convention and complies

with Article 33 thereof; and

(d) the country would allow the passengers to return

to that country or to have the merits of their claims to

Convention refugee status determined therein.

5. In the Dominican Republic, Decreto Presidencial No.

2330 de 10 setiembre de 1984, Reglamento de la Comision

Naciénal Para Los Refugiados, Capitulo 1V, Articulo, 13,

provides:

Ningin refugiado podré ser puesto en las fronteras,

por expulsién o devolucion, de territorios donde su

vida o su libertad peligre por causa de raza,

religién, nacionalidad, pertenencia a determinado

grupo social o de su opiniones politicas.

(No refugee can be placed in the borders, by

expulsion or return, of the territory where her life or

liberty is endangered because of race, religion,

nationality, membership in a particular social group

Procedure for Refusal of Entry Into Finland at a

Frontier. Refusal of entry is to be effected without

delay at a passport control station or elsewhere as

soon as it has been ascertained that an alien is not

entitled to enter Finland. No one should be returned

to an area where he may be subjected to inhuman

treatment, or persecution under the terms of Article

30, or to an area from which he may be further sent

to such an area.

or political opinions.) 8. In Lesotho, the Refugee Act of 1983, Article 11

(emphasis added):

6. In Ecuador, Decreto No. 3293; Reglamento para la

aplicacién en el Ecuador de las normas contenidas en la

Convencién de 1951 sobre el estatuto de los refugiados y en

su protocolo de 1967, Capitulo IV, Articulo 18 [30

A person shall not be rejected at any Lesotho

frontier or be expelled or otherwise compelled to

return or to remain in a country . . . where he may

septiembre 1987] (emphasis added), provides:

Ninguna persona seré rechazada en la frontera,

devuelta, expulsada, 0 sujeta a medida alguna que le

obligue a retornar a un territorio donde su

integridad fisica o su libertad personal esta en riesgo

a causa de las razones mencionadas en los Articulos

] y 2 presente Reglamentio.

(No one shall be refused at the border, returned,

expelled or subjected to any measure which would

obligate her to return to a territory where her

physical integrity or personal liberty is at risk for

any of the reasons mentioned in Articles 1 and 2 of

9

be tried or punished for offences of a political

character[.]

In Malawi, the Refugee Act of May 8, 1989, Article

10(2), provides:

(1) A refugee shall not be expelled or returned

to the borders of a country where his life or freedom

will be threatened on account of (a) his race,

religion, nationality or membership of a particular

social group or political opinion; or (b) external

aggression, occupation, foreign domination or events

seriously disturbing the public order in either part or

the whole of that country.

this law.)

(2) A person claiming to be a refugee shall be

permitted to enter and remain in Malawi for such

period as the Committee may require to process his

application for refugee status.

7. In Finland, the Aliens Act of March 1, 1991, Section VI

- Refusal of Entry Into Finland and Removal from Finland,

Article 38, provides:

4 | 5

10. In Nicaragua, Reglamento de Ley Creadora de la Oficina

Nacional para refugiados, Articulo 16 [6 avril 1984],

provides:

Refugiados y Asilados Politicos en El Peru, Capitulo Ill,

Articulo 54 [25 enerio, 1985], provides:

Al margen de la determinacion de la Solicitud de la

condicion de refugiado, prevaleceréd el principio de

no devolucién al territorio en el cual pueda peligrar

su vida o libertad del individuo.

(At the point of determining a claim of the condition

of a refugee, will prevail the principle of no-return

to a territory in which one’s life or individual liberty

is endangered. )

[E]l Ministerio del Interior evitard la devolucién del

extranjero al pais en que su vida, libertad o

integridad personal se encuentran seriamente

amenazadas por las causales a que se refiere el

articulo 7 del presente Reglamento.

(The Minister of the Interior will avoid returning the

alien to a country where her life, liberty or personal

integrity would be seriously threatened by causes

referred to in article 7 of this law.)

_ 13. In Spain, Ley 5/1984, de 28 de marzo, reguladora del

derecho de asilo y de la condicién de refugiado, Titulo

primero: del Asilo; Capitulo 1: Disposiciones generales,

Articulo 2, provides:

11. In Nigeria, the National Commission for Refugees, etc.,

Decree 1989, Part I, Article 1(1) [December 29, 1989]

(emphasis added), provides:

et Ce, ee. eo ee ee

As from the commencement of this Decree and

notwithstanding any other law or enactment, no

person who is a refugee within the meaning of this

Decree shall be refused entry into Nigeria, expelled,

extradited or returned in any matter whatsoever to

the frontiers of any territory where (a) his life or

freedom would be threatened on account of his race,

religion, nationality, membership of a particular

group or political opinion; or (b) his life, physical

integrity, or liberty could be threatened on account

of external aggression, occupation, foreign

domination or events seriously disrupting public

order in any part of the whole of that territory.

El asilo es la proteccién graciable dispensada por el

Estado, en el ejercicio de su soberania, a los

estranjeros que se encuentren en alguna de las

circunstancias previstas en el articulo 3 y que

consiste en la no devolucién al Estado donde sean

perseguidos ...

(Asylum is the protection graciously given by the

state, in the exercise of its sovereignty, to aliens who

find themselves in any of the circumstances

anticipated in article 3 and which consist of a no-

return to a state where she would be persecuted ...)

12. In Peru, Decreto Presidencial No. 1 Aprobando el 14. In Sweden, the Aliens Act of July 1, 1990, Article 2,

Reglamento que Ordene La Situacién Juridica de los provides:

15.

When a refusal of entry order or an expulsion order

is to be put into effect, the alien may not be sent to

a country where he risks persecution, nor to a

country where he is not safeguarded against being

sent on to a country where he risks such persecution.

In Switzerland, Joi sur l’asile (law on asylum), du 5

octobre 1979, article 45(1) (emphasis added), provides:

16. In Zimbabwe, the Refugee Act of 1983, Article 13(1)

Principe de non-refoulement, (1) Aucune personne ne

peut étre contraite, de quelque, maniére que ce soit,

a se rendre dans un pays ou Sa vie, son intégrité

corporelle ou sa liberté serait menacée par l’un des

motifs mentionnés a l'article 3, ler alinéa, ou encore

d’ou elle risquerait d’étre astreinte a se rendre dans

un tel pays.

(Principle of non-refoulement. (1) No one shall be

constrained, in any manner whatsoever, to be

returned to a country where her life, bodily integrity

or liberty would be threatened for any of the reasons

mentioned in article 3, clause 1, or also [to a third

country where] she would risk being constrained to

be returned to such a country.)

(emphasis added), provides:

Notwithstanding the provisions of any other law, no

person shall be refused entry into Zimbabwe,

expelled, extradited or returned from Zimbabwe to

any other country or be subjected to any similar

measure, if as a result of such refusal, expulsion,

return or other measure such person is compelled to

return to or remain in a country where (a) he may be

subjected to persecution on account of his race,

religion, nationality, membership of a particular

social group or political opinion; or (b) his life,

physical integrity or liberty would be threatened on

account of external aggression, occupation, foreign

domination or events seriously disrupting public

order in pee. or the whole of that country.