10 territories. The issue, however, was not thoroughly analyzed in that opinion. 2/ In 1985, in connection with the filing of the brief for the United States as defendant-appellee in Haitian Refugee Center Inc. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987), the Department reviewed, elaborated, and concurred in arguments made by the Department of Justice to the effect that Article 33 does not protect refugees outside the territory of the United States. In 1989, the Department of State testified before the House Committee on the Judiciary Subcommittee on Immigration, Refugees and International Law concerning the Haitian Interdiction Program, and again stated its view that Article 33 does not impose obligations on States with respect to refugees outside their territory. Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees and International Law of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 36-43 (1989) (statement of Alan J. Kreczko, Deputy Legal Adviser, Dep't of State). Later that year the United States also stated this position clearly on the record at the annual meeting of the Executive Committee of the U.N. High Commissioner for Refugees. This statement was reported in the official record of the meeting as follows: As a matter of practice the United States authorities did not return persons who were likely to be persecuted in their countries of origin, and on their arrival at the border they were all given the opportunity to make an asylum claim. That was the practice, and in fact the policy of the United States, and not a principle of international law with which it conformed. Although the United States was pursuing a policy based on humanitarian considerations, that policy was not inspired by any international obligation. It did not consider that the non-refoulement obligation under article 33 of the Convention included an obligation to admit an asylum-seeker. The obligation contained in the Convention pertained only to persons already in the country and not to those who arrived at the frontier or who were travelling with the intention of entering the country but had not yet arrived at their destination. Furthermore, there was nothing to suggest that an obligation to admit 5/See Proposed Interdiction of Haitian Flag Vessels, 5 Op. Off. Legal Counsel 242, 248 (1981). 11 asylum-seekers had ripened into a rule of customary Executive Committee of the High Commissioner's Programme, Our view is not changed by the fact that the U.N. High Commissioner for Refugees ("UNHCR") now advocates recognition of an extraterritorial norm of non-refoulement./ UNHCR was established by the U.N. General Assembly even before the Refugee Convention was completed, and has never been charged with a definitive role in the interpretation of the Convention. That role is given to the International Court of Justice by Article 38 of the Convention and by Article IV of the Protocol. Similarly, the consensus-based Executive Committee ("EXCOM") of UNHCR (comprised of States both party and non-party to the Refugee Convention, and of States party to additional, more expansive conventions) has no authority to interpret legal obligations of States. UNHCR itself has recognized that the EXCOM conclusions have no legal effect, but instead provide guidance for States in developing their policies on refugee issues. Statement of Mr. Arnaout Director Division of Refugee Law and Doctrine, UNHCR, in Executive Committee of the High Commissioner's Programme, Summary Record of the 431st Meeting at 11-12, U.N. Doc. A/AC.96/SR.431 (1988). Summary Article 33 of the Refugee Convention was completed on the understanding that it would not have extraterritorial effect. This understanding has been confirmed by subsequent practice by States party to the Convention and Protocol, particularly in the context of considering the draft Convention on Territorial Asylum. The United States has repeatedly recognized the limited scope of Article 33, including in 1968, at the time of 6/ Prince Sadruddin Aga Kahn recognized during his tenure as U.N. High Commissioner for Refugees that there was no obligation of non-refoulement with respect to refugees outside a State's territory. S. Aga Kahn, Lectures on Legal Problems Relating to Refugees and Displaced Persons given at the Hague Academy of International Law (August 4-6, 1976) 25-26. See also G. Goodwin-Gill, The Refugee in International Law 75 & n.26 (1983). 12 accession to the U.N. Protocol; in 1972, after the Kudirka incident; in 1975, while considering the draft Convention on Territorial Asylum; in 1979-80, during consideration of the Refugee Act of 1980 and the situation in Liberia; and consistently since 1985. Contrary interpretations apparently made in 1981 are in error. Again, in light of the pending litigation, we would appreciate receiving the views of your office as soon as possible. Sincerely yours, EX D. Well Edwin D. Williamson Question for the Record submitted to Committee on the Judiciary Subcommittee on Immigration and Refugee Affairs Question What is the situation of Iraqis in Saudi refugee camps? Describe refugee processing procedures for Iraqis in Saudi Arabia, including the number of approved cases in the pipeline. Answer There are currently some 28,000 Iraqi refugees in refugee camps in Saudi Arabia, who have been provided with housing, food, hospitals, schools and living allowances at the expense of the Saudi government. As conditions in Iraq have precluded the safe return of these refugees, UNHCR has concluded that other solutions, including resettlement in third countries, must be found. The Bureau for Refugee programs has contracted with the American Council for Nationalities Services (ACNS) to provide case processing services for the U.S. refugee program. work commenced in May 1992. Their UNHCR has a 24-hour presence in the refugee camps and assists refugees desiring resettlement in filling out referral forms. The ACNS caseworkers visit the camps regularly and meet with UNHCR-scheduled refugees to complete their application forms. The refugees are then presented to INS officers at the next circuit ride. As of July 31, 1992, 1,033 Iraqi refugees had been approved for admission to the U.S. Forty-six had arrived in the U.S. as -2 of that date, and we expect that most if not all of the remainder will arrive by the end of the fiscal year. The caseworkers are continuing to open cases on a weekly basis. We intend to continue this program for Iraqi refugees from Saudi Arabia in FY 93. We are encouraging other resettlement countries to respond positively to UNHCR's call for resettlement of this population. |