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No. 94-5138 ____________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________ CUBAN AMERICAN BAR ASSOCIATION, ET AL., Plaintiffs-Appellees, v. WARREN CHRISTOPHER, SECRETARY OF STATE, ET AL., Defendants-Appellants. ____________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA ____________________ BRIEF AMICUS CURIAE OF HUMAN RIGHTS WATCH IN SUPPORT OF THE PLAINTIFFS ____________________ KENNETH ROTH JUAN E. MENDEZ JOANNE MARINER HUMAN RIGHTS WATCH 485 Fifth Avenue New York, NY 10017 (212)972-8400 ______________________________________________________________________ TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICUS CURIAE. . . . . . . . . . . . . . . . . . . .1 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 I. THE CUBAN REFUGEES HELD IN GUANTANAMO NAVAL BASE AND IN THE PANAMA CANAL ZONE HAVE THE RIGHT TO RESIST REPATRIATION TO CUBA . . . . . . . . . . . . . . . . .7 A. Article 33 Of The United Nations Convention Relating To The Status Of Refugees Is Applicable To Refugees Held In Guantanamo And The Canal Zone. . . . . . . . . . . . . . . . . . . . . . .7 1. The United States' Territorial Jurisdiction Over Guantanamo And The Canal Zone Makes Article 33's Prohibition Against Expelling Refugees Applicable There. . . . . . . . . .9 2. Neither Sale Nor Baker II Addressed Whether Refugees On Guantanamo Or The Canal Zone Have Rights Under Article 33. . . . . . . . . . 15 B. Article 33 Of The Convention Is Self-Executing And Should Be Applied By This Court . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Human Rights Watch is an independent nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in Africa, the Americas, Asia, the Middle East and among the signatories of the Helsinki accords. It is the largest international human rights organization based in the United States.
In working to promote respect for human rights, Human Rights Watch investigates, documents, and publicizes human rights violations throughout the world, including violations of the rights of immigrants and refugees. It has concluded fact-finding missions in scores of countries, and published hundreds of reports of its findings. By exposing and calling attention to human rights abuses, Human Rights Watch seeks to bring international public opinion to bear upon offending governments and thus to encourage an end to abusive practices.
Through its Americas Division, Human Rights Watch has monitored human rights abuses in Cuba for nearly a decade and has published eleven reports on conditions there. The most recent report, released in October 1994, was titled "Repression, the Exodus of August 1994, and the U.S. Response" (hereinafter "Repression"). It documents the Cuban government's continuing violations of fundamental rights of its citizens, including rights of expression, association and security of the person. It also describes the Cuban government's recent crack-down on dissident and opposition groups, which resulted in dozens of human rights or pro-democracy activists being detained and some being severely beaten.
Human Rights Watch's credibility and effectiveness in each region of the world is based on its reputation for applying international human rights standards in an evenhanded fashion in evaluating the conduct of different nations. As a worldwide organization based in the United States, it has a special duty to step forward when the U.S. government is alleged to have perpetrated grave human rights abuses. Accordingly, it has played a prominent role in evaluating U.S. compliance with international law in the treatment of immigrants and refugees and, in particular, in investigating and publicizing the plight of Guantanamo detainees. See Human Rights Watch & American Civil Liberties Union, Human Rights Violations in the United States 75-86 (1993) (discussing Guantanamo).
As our October report states, a "substantial number of [the Cubans] in Guantanamo have been politically persecuted in the past and are likely to face additional harassment and abuse if they return to Cuba." Repression at 12. The report cites, for example, the case of Gloria Bravo of the group AMAD (Association of Mothers for Dignity), currently held in Guantanamo, who was detained by the Cuban authorities for eleven days in August. Id. In view of cases such as hers, it concludes that "the U.S. bears a legal burden to screen all detainees for possible refugee status prior to repatriation." Id.
The strong concern of Human Rights Watch for protecting the rights of refugees in Guantanamo led the organization to file an amicus curiae brief in Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1350 (1993), rev'd, 113 S.Ct. 2549 (1993). More generally, the organization has participated as an amicus in international tribunals and domestic courts in numerous other cases involving international human rights norms or the application of international legal instruments relating to human rights. Although it is not a law firm per se, it has lawyers on staff and substantial expertise on issues of international human rights law that are germane to this case.
If repatriated to Cuba, the refugee plaintiffs currently detained on Guantanamo Naval Base and in the Panama Canal Zone face incarceration and physical abuse, both for the dissident activities than many of them have engaged in, and for the very fact of fleeing their country. Repression at 21. The defendants assert, nonetheless, that even the prospect of systematic and egregious abuse of the rights of these refugees by the Cuban government upon their return is legally irrelevant to the authority of the United States government to expel them from their detention camps and repatriate them to Cuba. This argument is profoundly mistaken.
As the district court recognized in rejecting the government's position, and as this Court implicitly confirmed in its November 7 order prohibiting the plaintiffs' forcible repatriation, the Cuban refugees held in U.S. custody in Guantanamo and the Canal Zone do possess substantive rights with respect to their involuntary return to Cuba. In particular, Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees bars the United States from repatriating any Cuban whose life or freedom would be threatened on return to Cuba on account of his or her political opinion or membership in a particular social group.
The Cuban refugees held in Guantanamo and the Canal Zone are not, as the government asserts, legally indistinguishable from aliens on the high seas. Significantly, they are being detained by the government in territories over which the United States has assumed varying degrees of territorial control.
Relying on the plain language of Article 33 -- in particular, its use of the words "expel" or "refouler" -- the Supreme Court recently singled out a requirement of territoriality as central to Article 33's application. Sale v. Haitian Ctrs. Council, Inc., 113 S. Ct. 2549, 2564-65 (1993). In its brief, the government examines the requirement entirely out of the context, however, and thus interprets it far too restrictively. In the government's narrow view, only full de jure sovereignty over territory is sufficient to bring Article 33 into play.
As described below, such a reading contravenes both Article 33's language and intent. A reasonable view of the territoriality requirement, appropriate to Article 33's language and the international context in which it was drafted, does not limit Article 33's applicability to territories over which a state has de jure sovereignty, but extends it as to territories over which it has at least some degree of de facto sovereignty, that is, territorial jurisdiction or control. Under this reading of the provision, aliens in both Guantanamo and the Canal Zone would be protected.
Controlling circuit precedent confirms that Article 33 of the Convention is available to protect the rights of Cuban refugees held in Guantanamo and the Canal Zone. In Nicosia v. Wall, 442 F.2d 1005 (5th Cir. 1971), the court vacated the judgment of a district court that had refused to consider the applicability of the Convention to a Panamanian fugitive who had been visiting the Canal Zone. The government in that case conceded that the Convention was applicable to the Canal Zone, as it did again in its brief to the Second Circuit in Haitian Ctrs. Council v. McNary, 969 F.2d 1350 (2d Cir. 1992), rev'd, 113 S.Ct. 2549 (1993).
The government mistakenly asserts that Sale v. Haitian Ctrs. Council, Inc., supra, and Haitian Refugee Ctr. Inc. v. Baker, 953 F.2d 1498 (11th Cir.), cert. denied, 112 S.Ct. 1245 (1992) ("Baker II"), establish that Guantanamo and the Canal Zone are, vis-a-vis the obligation of non-refoulement, legally indistinguishable from the high seas. But notwithstanding the government's misleading citation to Sale's two contextual references to Guantanamo, the Supreme Court in Sale made it unmistakeably clear that it was reviewing only the validity of the President's interdiction order and the actions of the Coast Guard in summarily repatriating the interdicted Haitians. In Baker II, although this Court may have assumed for the purpose of applying U.S. law that Guantanamo was "extraterritorial," it never addressed the issue, and in fact did not even mention the U.S.-Cuban lease agreement. Its obvious focus was on the status of Haitians interdicted on the high seas. At any rate, its views regarding the reach of U.S. law are not controlling as to the applicability of Article 33, which was not at issue in that case.
Finally, Nicosia also demonstrates that Article 33 is self-executing and can therefore be judicially applied in the absence of implementing legislation, a view that the Supreme Court inclined toward in Sale and other cases. The plain language of Article 33, which is mandatory, clear and definite, leads to a presumption that it is self-executing, which is strengthened by the fact that the principle of non-refoulement that Article 33 establishes does not contradict any consistent or traditional practice of the United States. Moreover, the intent of the parties to make Article 33 binding on all signatory states is wholly evident, World War II having demonstrated the crucial importance of non-refoulement as a uniform international norm.
A. Article 33 Of The United Nations Convention Relating To The Status Of Refugees Is Applicable To Refugees Held In Guantanamo And The Canal Zone.
The government asserts that there are no limits on its authority to expel the Cuban refugee plaintiffs from its camps in Guantanamo and the Canal Zone, no matter how much it previously encouraged the refugees to leave their country, and no matter what abuses await the refugees upon return there.
In making this claim, the government entirely disregards the prohibition on non-refoulement contained in Article 33 of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 6276, 189 U.N.T.S. 137, 174, which became binding on the United States through its accession to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (hereinafter "Protocol"). Under Article 33, the United States bound itself not to "expel or return ('refouler')" refugees to any country where their lives or freedom would be threatened on account of, among other things, political opinion or membership in a particular social group. Even though it is clear that many Cubans detained in Guantanamo and the Canal Zone would fall within the definition of persons protected by this provision (see Repression at 21), the government asserts that, by virtue of their location, the provision is inapplicable to them.
According to this view, refugees held by the government in camps in Guantanamo and the Canal Zone, areas for which the United States has assumed varying degrees of responsibility and control, are legally indistinguishable from refugees on the high seas, an area that "is not, and never can be, under the sovereignty of any State whatever." Oppenheimer, International Law 482 (4th ed. 1928). In particular, the government claims that just as refugees on the high seas cannot call upon the protection of Article 33 (see Sale, 113 S.Ct. at 2567), refugees outside of the continental United States are similarly unprotected (1). The legal relationship of the United States to Guantanamo and the Canal Zone is, however, quite distinct from its relationship to the high seas -- and this distinction is critical with regard to Article 33.
No country can claim any degree of control over the high seas, which are open to all. United States v. Postal, 589 F.2d 862, 869 (5th Cir. 1979), cert. denied, 444 U.S. 832 (1979) (high seas are "freely accessible to all nations and are not subject to the sovereignty of any nation"). Given this basic proposition, the Supreme Court in Sale reasoned that, for purposes of Article 33's application, an alien at sea has not entered territory subject to any country's power -- territory from which he risks being "expelled" -- so that he cannot claim Article 33's protection against expulsion. Sale, 113 S.Ct. at 2564. Its inflexible requirement, therefore, is that an alien must be subject to a country's territorial power in order to rely on the Article as a shield against the country's actions. Id.
As explained below, the Cubans held in camps in Guantanamo and Panama satisfy this requirement.
1. The United States' Territorial Jurisdiction Over Guantanamo And The Canal Zone Makes Article 33's Prohibition Against Expelling Refugees Applicable There.
In marked contrast to aliens on the high seas, who are beyond the reach of the United States' territorial jurisdiction, Cubans in Guantanamo are held in an area over which the United States exercises "complete jurisdiction and control."(2) Accordingly, by its plain language, Article 33 applies there, barring the United States from "expelling" them from territory under its control.
Relying on a single clause in the United States' lease over Guantanamo that reserves "ultimate sovereignty" over the base to Cuba, the government asserts that Guantanamo must be deemed "extraterritorial" and, under Sale, not covered by Article 33. However, the fact that the United States is not fully sovereign, in the de jure sense, over Guantanamo cannot be held determinative of Article 33's applicability. A treaty should be interpreted "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." Vienna Convention on the Law of Treaties, May 23, 1969, art. 31, 1155 U.N.T.S. 331, 340, 8 I.L.M. 679. The restrictive interpretation of Article 33 advocated by the government contravenes not only its language but also its clear purpose of affording refugees "the widest possible exercise of [their] fundamental rights and freedoms." Preamble to the United Nations Convention Relating to the Status of Refugees, supra.
There are many territories in the world over which one state exercises de facto jurisdiction and control while another state retains, or at least claims, de jure sovereignty. The case of Hong Kong, in particular, is worth considering since it provided the model for the type of sovereign arrangement established in the Canal Zone and Guantanamo. In 1842, China ceded Hong Kong Island to England "to be possessed in perpetuity." Jensen, International Agreements Between the United States and Hong Kong Under the United States-Hong Kong Policy Act, 7 Temp. Int'l & Comp. L.J. 167, 168 (1993) (quoting from the Treaty of Nanking). In 1898, China signed a treaty with Great Britain providing for the 99-year lease of additional Hong Kong territories, essentially inventing the mechanism of leasing territory between states. Id. Since that time, of course, China has vigorously disputed England's sovereignty over these territories, fighting a protracted battle that was only recently resolved when England agreed to relinquish its claims of sovereignty. Id.
In 1903, only a few years after the China-England agreements, the American Secretary of State secured similar territorial concessions from Cuba and Panama (using similar negotiating tactics). Raymond & Frischholz, Lawyers Who Established International Law in the United States, 1776-1914, 76 Amer. J. Int'l L. 802, 822 (1982) (hereinafter "Lawyers"). The 1903 Isthmanian Canal Convention gave the United States rights to the Canal Zone "in perpetuity"; the Cuban agreement, signed a few weeks later, created a long-term lease. Isthmanian Canal Convention, 1903, 33 Stat. 2234, T.S. No. 431; Agreement With Cuba, supra. Viewing the two territories as having analogous legal status, commentators have noted that "[f]rom a legal standpoint the United States secured a unique degree of sovereignty over [the territories]." Lawyers, supra at 822; Green, Applicability of American Laws to Overseas Areas Controlled by the United States, 68 Harv. L. Rev. 781, 793 (1955) (stating that "Guantanamo Bay should be treated like the Canal Zone both as a possession and as not foreign"); see also Vermilya-Brown, Inc. v. Connell, 335 U.S. 377, 384 (1948) (describing the Cuban agreement and stating that "a similar arrangement existed in regard to the Panama Canal Zone"). These treaties, despite their careful reservation of residual sovereignty, have at times been resented by the territories' putative sovereigns for their substantial infringement on de facto sovereignty and control.
The purpose of Article 33 is to protect the rights of refugees by limiting the power of territorial authorities to expel them. This purpose reveals no justification for narrowing the provision's scope by imposing a requirement of de jure sovereignty over territory, a requirement that would unnecessarily involve complex and controversial issues of political legitimacy and historical right, as examples such as Hong Kong, the Falkland/Malvinas Islands (3) and Tibet (4) illustrate, among others. Article 33's language speaks of physical expulsion -- a factual rather than political condition. Whether the refugees are held on territory over which the de facto authority lacks ultimate de jure sovereignty is entirely irrelevant for its purposes. The absence or existence of a reservation clause in a lease, or the labeling of something as a "possession" or "territory," should not be deemed determinative of Article 33's applicability; such formalistic distinctions mean little in relation to a country's power to expel persons from territory under its control.
A less formalistic reading of Article 33's territoriality requirement is appropriate to the provision's text and purpose. Specifically, if a state has a sufficient objective degree of control over the territory at issue, then Article 33 should apply to limit its power to expel refugees. The test looks to de facto authority, rather than to notions of de jure legitimacy, and is consistent with international practice. See Brownlie, Principles of Public International Law (4th ed.1990) (noting that courts normally take a "pragmatic approach" to questions of sovereignty, ignoring a state's lack of de jure authority and thereby avoiding creating a legal vacuum). As Justice Holmes explained during the era that the Guantanamo and Panama treaties were negotiated, in ruling that Costa Rica should be acknowledged as the sovereign power in a portion of Panamanian territory, "the fact . . . that de jure the estate is in Panama does not matter in the least: sovereignty is pure fact." American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (emphasis added).
The controlling precedent for this approach is Nicosia v. Wall, 442 F.2d 1005 (5th Cir. 1971). Nicosia involved the applicability of Article 33 to a Panamanian fugitive who had been visiting the Canal Zone. The court, agreeing with the defendant's claim that Article 33 was available to protect him there, did not impose any requirement of full political sovereignty over territory like that presently advocated by the government. In that case, of course, even the government did not press the restrictive standard it now advocates here. Indeed, it conceded that the Convention was applicable to the Canal Zone, just as it recently did again in its brief to the Second Circuit in Haitian Ctrs. Council v. McNary, 969 F.2d 1350 (2d Cir. 1992), rev'd, 113 S.Ct. 2549 (1993).
Even though Nicosia only considered the Convention's applicability to the Canal Zone, it is equally controlling with regard to Guantanamo, a territory that, as described above, enjoyed a legal status equivalent to that of the Canal Zone prior to 1977. Accordingly, Article 33 should be held to apply to Guantanamo. As for the Canal Zone, although the United States has, since passage of the 1977 Panama Canal Treaty (5), played a less dominant role in controlling the affairs of the territory than it did formerly, it still retains authority and control. Under an appropriately flexible interpretation of Article 33's scope, this is sufficient.
2. Neither Sale Nor Baker II Addressed Whether Refugees On Guantanamo Or The Canal Zone Have Rights Under Article 33.
The government wrongly asserts that Sale v. Haitian Ctrs. Council, Inc., supra, and Haitian Refugee Ctr. Inc. v. Baker, 953 F.2d 1498 (11th Cir.), cert. denied, 112 S.Ct. 1245 (1992) ("Baker II"), establish that Guantanamo and the Canal Zone are, vis-a-vis the obligation of non-refoulement, legally indistinguishable from the high seas. Neither case, however, addressed the applicability of Article 33 on Guantanamo (nor, of course, did either one involve the Canal Zone).
Notwithstanding the government's misleading citation to Sale's two contextual references to Guantanamo, there were no Guantanamo detainees included in the Sale class. The Supreme Court in Sale made it unmistakeably clear that it was reviewing only the validity of the President's interdiction order and the actions of the Coast Guard in summarily repatriating the interdicted Haitians. For example, in the first paragraph of the opinion, the Court defined the case as deciding whether "forced repatriation," or "action[s] taken by the Coast Guard on the high seas," violate 243(h) of the Immigration and Nationality Act or Article 33 of the Convention. Sale, 113 S.Ct. at 2552; see also id. at 2559 n.28 (emphasizing that only the "program of interdiction and repatriation established by the President and enforced by the Coast Guard" was at issue). The contextual references to Guantanamo relied on by the government show only that there were, at that time, detainees on Guantanamo and they had the same lawyers representing them. But, unlike Sale, the Second Circuit case that involved the Guantanamo detainees, Haitian Ctrs. Council v. McNary, 969 F.2d 1326, vacated as moot, 113 S.Ct. 3028 (1993)("McNary I"), never reached the Supreme Court. (6)
Nor does Baker II foreclose review of plaintiffs' Article 33 claims. To begin with, Article 33 was not at issue in that case. Moreover, that decision's limited mention of aliens on Guantanamo, describing them as being outside of the United States, is irrelevant to Article 33's interpretation. There is no single line separating what is inside from what is outside the United States; the placement of any given line is a function of what law is at issue. See Vermilya-Brown, Inc., 335 U.S. at 386 (noting, in holding that the Fair Labor Standards Act applies on leased territory on Bermuda, that the words "possession" and "territories" are not terms of art, and may in fact be used rather arbitrarily); id. at 388 n.12 (citing various statutes to illustrate the above point, one of which lists the Canal Zone as a "State").
Finally, even if there were an absolute and unwavering distinction between the territorial and the extraterritorial, the Baker II court only assumed that Guantanamo was extraterritorial; it never addressed the issue. It did not even mention the U.S.-Cuban lease agreement or the fact of U.S. jurisdiction and control, its obvious focus being on the status of Haitians interdicted on the high seas. As a result, it can not be viewed as binding precedent regarding Guantanamo's status. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37-38 (1952); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985).
Because the Supreme Court in Sale found that both Article 33 and 243(h) of the Immigration and Nationality Act do not apply to refugees on the high seas, it did not reach the issue of whether Article 33 is self-executing. Sale, 113 S.Ct. at 2567. Its discussion of Article 33 implied, however, that were it squarely presented the issue it would find the provision self-executing, a view that it has inclined toward in past cases as well. Given the mandatory nature of Article 33's language, the universally recognized and fundamental character of the principle it protects, (7) and the fact that it does not contradict any consistent or traditional past practice of the United States, the provision unquestionably should be held self-executing.
In discussing Article 33 in Sale, the Supreme Court was careful to note that if the provision was found to be broader than 243(h), it might "under the Supremacy Clause . . . then provide the controlling rule of law. Id. at 2562 (citing, inter alia, Cook v. United States, 288 U.S. 102 (1933) (involving self-executing treaty obligation)). This statement echoed prior discussions of Article 33 in which the Court had made it clear that it viewed compliance with the provision as mandatory dating from United State's accession to the Protocol in 1968 (despite the fact that the Refugee Act implementing the Protocol was not enacted until 198O).
In INS v. Cardoza-Fonseca, 480 U.S. 421 (1986), for example, the Court stated that Article 33 "imposed a mandatory duty on contracting States." Id. at 429. It concluded, therefore, that prior to the enactment of the Refugee Act, the Attorney General would have "honored the dictates of [Article 33 of] the United Nations Convention." Id. Similarly, in INS v. Stevic, 467 U.S. 407 (1984), the Court explained that it was unnecessary to enact a statute implementing Article 33, since the Attorney General could simply exercise his discretion in accordance with the provision's dictates. Id. at 429 n.22 (describing the "mandatory entitlement" of freedom from deportation that Article 33 afforded refugees). Even earlier, the Fifth Circuit had implicitly held Article 33 self-executing by enforcing it in the Canal Zone prior to the enactment of the Refugee Act. Nicosia, 442 F.2d at 1005-06.
Since treaties are constitutionally equivalent to federal statutes, (8) they are generally presumed self-executing. Restatement (Third) on Foreign Relations 111(4); Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554, 556 (5th Cir. 1947) ("A Treaty . . . is generally self-operating"). Whether or not a given treaty is self-executing is, however, a question of interpretation for which the court looks to the treaty language, as well as: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range consequences of self- or non-self-execution.
United States v. Postal, 589 F.2d 862, 877 (5th Cir. 1979) (quoting People v. Saipan v. U.S. Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975)).
The plain language of Article 33, which is mandatory, clear and definite, indicates that it is self-executing. Compare Frolova v. U.S.S.R., 761 F.2d 370, 374 (7th Cir. 1985) (Articles 55 and 56 of United Nations Charter not self-executing because they "are phrased in broad generalities, suggesting that they are declarations of principle, not a code of legal rights" and lack "mandatory quality and definiteness"). Moreover, the other Saipan factors confirm this conclusion: it is clear that Article 33 was meant to mandatory, not hortatory; as the Supreme Court recognized in Stevic and Cardoza-Fonseca, the Attorney General could directly implement it in the absence of legislation; and its non-enforcement would result in dire consequences, specifically, violations of the fundamental human rights of refugees forced to return to their persecutors.
Additionally, in ascertaining whether a treaty is self-executing, a court should pay especial attention to "the context of [its] promulgation." Postal, 589 F.2d at 877. In particular, a treaty that contradicts a consistent or traditional past practice of the United States will not be deemed self-executing, since such a practice demonstrates that the government did not intend the treaty to be enforceable by the judiciary. Id. at 883-84. Clearly, the United States in 1968 did not have a consistent or traditional past practice of expelling refugees; indeed, the tradition and practice of the United States is quite the contrary. This factor strongly militates in favor of finding Article 33 to be self-executing.
Finally, the enactment of the Refugee Act to implement Article 33 should not be interpreted, post hoc, as suggesting that the provision is not self-executing. First of all, passage of the Refugee Act came a full twelve years after U.S. accession to the Protocol, during which time the Attorney General, as well as this Court in Nicosia, continued to apply Article 33. In addition -- even though, as this past practice demonstrates, Article 33 did not require implementation to be effective -- the enactment of the Refugee Act allowed greater specificity and systematization in its implemention.
For the foregoing reasons, Human Rights Watch, as amicus curiae, respectfully submits that the district court's order should be affirmed.
Dated: December 6, 1994
KENNETH ROTH JUAN E. MENDEZ Attorneys for Human Rights Watch, as amicus curiae
(1) To be precise, the government includes Alaska, Hawaii, Puerto Rico, Guam and the Virgin Islands within its definition of areas subject to the nonrefoulement prohibition.Return to Text
(2) See Agreement for the Lease of the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, art. 111, T.S. No. 418.Return to Text
(3) See High Noon in the Falklands, Newsweek, Apr. 26, 1982, at 40 (discussing disagreement between England and Argentina over sovereignty of the Falklands, and mentioning that the two countries had considered entering into a "Hong Kong solution" whereby Argentina would lease back the islands to England). Return to Text
(4) See International Commission of Jurists, The Question of Tibet and the Rule of Law 75-99 (1959) (chapter discussing Tibet's sovereign status without arriving at firm conclusions).Return to Text
(5) Panama Canal Treaty, Sept. 7, 1977, United States-Panama, 193 Stat. 4521, T.I.A.S. No. 10030.Return to Text
(6) Sale involved the appeal of Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1350 (1992) ("McNary II"), a case decided a little over a month after McNary I. Return to Text
(7) See Report of U.N High Commissioner for Refugees, 40 U.N. GAOR Supp. (No. 12) at 6, U.N. Doc. A/40/12 (1985) ("non-refoulement has now come to be characterized as a peremptory norm of international law"). Return to Text
(8) See Akasura v. City of Seattle, 265 U.S. 332, 341 (1924) (invoking treaty to invalidate state law because treaty "stands
on the same footing of supremacy as do the provisions of the Constitution and the laws of the United States"); Foster v. Nielsen, 27 U.S. (2 Pet.) 253, 314 (1829) (stating that treaty is "to be regarded in courts of justice as equivalent to an act of the legislature"). Return to Text