The court considered whether the forced repatriation of Haitian asylum-seekers, whose vessels were intercepted on the high seas, amounts to a violation of the non-refoulement ban in article 33 of the 1951 UN Convention Relating to the Status of Refugees and the relevant domestic laws, giving effect to the Convention.
In respect of the application of the Immigration and Nationality Act (the U.S. domestic statute which in section 243(h) prohibits the returning of an alien to his persecutors), and the Refugee Act, which authorizes the Attorney General to withhold the deportation of aliens “within the United States”, the court made one important finding. It concluded that the words “within the United States” and the dual use of the terms “deport or return” among other factors, indicates that these statutes do not envisage extraterritorial application. They constitute only the domestic procedures by which the Attorney General determines whether deportable and excludable aliens may remain in the United States.
Regarding article 33 of the Convention, the majority held that it applies only to refugees, already present in the territory of a member state and not yet resident there. Moreover, the court held that the Convention did not envisage that any nation would gather fleeing refugees on the high seas and return them to their country of origin. The Convention cannot reasonably be read to say anything at all about a nation’s actions toward aliens outside of its own territory, it does not prohibit such actions.
Accordingly, the majority held that the government’s actions, through the President’s Executive Order, did not fall within the ambit of the domestic legislation cited and was not in violation of article 33 of the Convention. Additionally, that the Convention did not apply to actions outside of U.S. borders.
The dissenting opinion of Justice Blackmun found that the executive order and the consequent repatriation of the Haitian people, violates the very purpose of the non-refoulment ban in article 33 of the Convention. It is thus inconsistent with international refugee law.
Refugees, forced repatriation, non-refoulement
In 1992, US President George H. W. Bush signed an executive order which required the US Coast Guard to intercept and forcibly return passengers who were illegally travelling by sea, from Haiti to the USA, before such passengers could reach US borders and before their claims to refugee status could be determined. As a result of the high number of Haitian migrants, the Department of Defence established facilities at the US Naval Base in Guantanamo Cuba (the base), to accommodate them during the screening process. The base was soon overcrowded and the government could not accommodate any more migrants. Accordingly, since migrants continued to travel to the US on “unseaworthy” vessels and the government could no longer offer the protection of the screening process, many migrants died at sea.
The Haitian Centers Council, Inc., requested the District Court in New York to stay the implementation of the executive order, arguing that it violates the INA and section 33 of the Refugee Convention, namely, the non-refoulement protection. The District Court denied the request, but the Court of Appeal reversed that decision.
Aggrieved by the decision, they appealed to the Supreme Court.
The petition was upheld and the decision of the Court of Appeals was reversed.
The Convention did not envisage that a member state would take such action against refugees outside of its borders, article 33 of the Convention cannot be read to actions taken outside of a state’s territory and therefore does not apply.