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When the United States ratified the 1967 U.N. Protocol Relating to the Status of Refugees (Protocol), it undertook not to "expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened" on specified grounds. On May 24, 1992, President Bush issued an executive order, known as the Kennebunkport Order, authorizing the United States Coast Guard to interdict vessels on the high seas suspected of containing Haitians destined for U.S. shores and to return such persons to Haiti without regard to whether their lives or freedom would be threatened on the grounds specified in the Protocol. The Coast Guard thereupon began intercepting such vessels and returning their passengers to Haiti without inquiring whether they would be persecuted there.

When this policy was challenged in Haitian Centers Council v. McNary, the Bush Administration responded in two ways to the argument that the policy violates the United States' obligations under the Protocol. First, the government took the position that the policy does not in fact violate the Protocol. It argued that the Protocol prohibits the United States from returning refugees to their persecutors if the refugee is present within our territory, but does not prohibit us from reaching out beyond our territorial waters to intercept refugees on the high seas to turn them over to their persecutors. Second, the government argued that, even if the Protocol's nonrefoulement obligation does apply to refugees on the high seas, the treaty cannot be enforced by the courts of this country because it is not "self-executing." Unlike the first argument, the second does not attempt to defend the policy's legality. Instead, it denies the Protocol's judicial enforceability. This article examines the government's second argument.

Publication Citation

7 Geo. Immigr. L.J. 39-65 (1993)