Refugee law reconsidered: Reconciling humanitarian objectives with the protectionist agendas of western Europe and the United States

Cornell International Law Journal

Volumn 29, Issue 1, 1996, Pages 225-261

  Regensburg, Kenneth ^a,b  

^a MIT Sloan School of Management   (United States)

^b STANFORD UNIVERSITY   (United States)

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EID: 77952447664     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (306)

1. Proclamation No. 6219, 3 C.F.R. 239-40 (1990) (President George Bush proclaiming Refugee Day, 1990).
2. The term "refugee" refers to a person obliged by war or persecution to leave his or her dwelling and seek refuge abroad.
3. MICHAEL R. MARRUS, THE UNWANTED: EUROPEAN REFUGEES IN THE TWENTIETH CENTURY 3 (1985). International law and U.S. immigration law expand upon this general definition by specifying requirements which must be sat-isfied before a person may qualify for refugee status and protection. See infra notes 32, 50 and accompanying text.
4. Congress first began regulating the influx of immigrants over a century ago. See, e.g., Act of May 6, 1882, ch. 126, § 1, 22 Stat. 58, 58-59 (the first of the so-called Chinese Exclusion Laws, suspending for ten years the "coming of Chinese laborers to the United States").
5. The majority of mass movements, especially those in Third World countries, are caused by war, ethnic strife, and socioeconomic inequalities in the home state. Deep ethnic divisions and economic underdevelopment have contributed to the domestic conflict and political instability which usually precedes mass exodus.
6. GIL LOESCHER, REFUGEE MOVEMENTS AND INTERNATIONAL SECURITY 28 (Adelphi Papers No. 268, 1992).
7. REFUGEES AT A GLANCE: A MONTHLY DIGEST OF UNHCR ACTIVITIES, Aug. 1995, at 1 (Office of the United Nations High Commissioner for Refugees, New York, N.Y.) [hereinafter Refugee Digest] (on file with author).
8. See LOESCHER, supra note 4, at 9-27 (discussing the dimensions of the refugee problem in the post-Cold War world).
9. Id. at 48-49.
10. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 [hereinafter 1951 Convention].
11. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 Protocol].
12. Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders and the Convention Applying the Agreement, Belg.-Fr.-F.R.G.-Lux.-Neth., 30 I.L.M. 68; Agreement, June 14, 1985, 30 I.L.M. 73 [hereinafter Schengen Agreement]; Convention, June 19, 1990, 30 I.L.M. 84 [hereinafter Schengen Convention].
13. Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, June 15, 1990, 30 I.L.M. 425 [hereinafter Dublin Convention].
14. GRUNDGESETZ [GG] art. 16a.
15. This principle prohibits expulsion or return of a refugee to territories "where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." 1951 Convention, supra note 8, art. 33, para. 1.
16. These dynasties were the Ottoman, the Romanov, the Hapsburg, and the Hohen-zollem empires. MARRUS, supra note 2, at 52.
17. Id. at 70-74.
18. See also EUGENE M. KULISCHER, EUROPE ON THE MOVE: WAR AND POPULATION CHANGES, 1917-47, at 166-74 (1948).
19. MARRUS, supra note 2, at 71.
20. Id.
21. Id.
22. Id.
23. In 1921, Hungary announced the arrival of approximately 139,390 refugees from Rumania, 56,657 from Czechoslovakia, and 37,456 from Yugoslavia. Id. at 72.
24. Id. at 61.
25. Id. at 56.
26. Id. at 57.
27. These treaties included: the Treaty of Brest-Litovsk (1918) between Germany, Austria-Hungary, Bulgaria, Turkey, and Russia, the Treaty of Versailles (1919), the Treaty of Saint-Germain (1919) between the Allied Powers and Austria, the Treaty of Trianon (1920) between the Allied Powers and Hungary, and the Treaty of Riga (1921) settling the Polish-Soviet frontier.
28. The scope and carnage of World War I had a considerable impact on the attitude of States toward the use of force. With the strong support of President Woodrow Wilson, the creation of the League of Nations became an integral part of the peace settlement. Though the League did not prohibit war or the use of force, it did set up a procedure to restrict international hostilities to tolerable levels. In particular, the League system included a guarantee by member states of the political independence and territorial integrity of each member against external aggression and authorized the use of collective economic and military measures to defeat such aggression.
29. JOHN F. MURPHY, THE UNITED NATIONS AND THE CONTROL OF INTERNATIONAL VIOLENCE 10 (1982).
30. See MALCOLM N. SHAW, INTERNATIONAL LAW 542-43 (2d ed. 1986).
31. See David A. Martin, Strategies for a Resistant World: Human Rights Initiatives and the Need for Alternatives to Refugee Interdiction, 26 CORNELL INT'L L.J. 753, 755 (1993);
32. MARRUS, supra note 2, at 86-91. A large number of anti-fascist refugees attempted to flee the new governments in Italy and Germany during the 1930s. In particular, the Western democracies witnessed panic-stricken flight during the two years prior to the outbreak of the Second World War. Economic depression in the United States and Western Europe also contributed to anti-immigrant policies. France, however, was an early haven for asylum seekers until it also added restrictions to its immigration law. The League of Nations was powerless to act throughout this crisis, given the fact that most Member States were reluctant to accept more than a few thousand refugees. In 1938, Hungary, Yugoslavia, Italy, Belgium, Switzerland, and the Netherlands took measures to reduce their earlier rates of acceptance and to reinforce frontier guards. Within a year, Europe was immersed in another grand scale war while Adolf Hitler simultaneously proceeded with his policy of ridding the Reich of non-Aryans and political dissenters.
33. See MARRUS, supra note 2, at 122-207.
34. Martin, supra note 26, at 755.
35. GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF-OPEN DOOR, 1945 TO THE PRESENT 2 (1986). The number of displaced persons at the conclusion of World War II totaled nearly 14 million. The Soviet Union claimed that it took charge of over 7.2 million forced laborers and prisoners of war. The French cared for more than 1.6 million Polish nationals, 700,000 Italians, 350,000 Czechoslovakians, 300,000 Belgians, and over 300,000 Dutch. MARRUS, suprd note 2, at 299.
36. The responsibilities of the High Commissioner include: (1) promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto; (2) promoting through special agreements with governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection; (3) assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities; (4) promoting admission of refugees, not excluding those in the most destitute categories, to the territories of States; (5) endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement; (6) obtaining from governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them; (7) keeping in close touch with the governments and inter-governmental organi-zations concerned; (8) establishing contact in such manner as he may think best with private orga-nizations dealing with refugee questions; (9) facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees.
37. G.A. Res. 428, U.N. GAOR, 5th Sess., Supp. No. 20, at 46, U.N. Doc. A/1775 1950).
38. 1951 Convention, supra note 8, art. 1.
39. The 1951 Convention defines refugee as any person who, [a]s a result of events occurring before 1 January 1951 and owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of mat country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
40. 1951 Convention, supra note 8, art. 1, para. A.
41. The 1967 Protocol eliminated the January 1,1951 limitation and extended protection to all contemporary refugees. 1967 Protocol, supra note 9, art. 1.
42. See supra note 32 and accompanying text. This definition of refugee originated with the International Refugee Organization (I.RO.), which was founded in 1946. The world community established the I.R.O. to protect victims of Nazi, Fascist, or collaborator regimes who presented valid objections such as persecution or a reasonable fear of such persecution in their home states.
43. See Constitution of the International Refugee Organization, Dec. 15, 1946. 62 Stat.(3) 3037, 18 U.N.T.S. 3.
44. 1951 Convention, supra note 8, art. 33, para. 1.
45. A dramatic alteration in East-West refugee movements occurred in 1989 when the Berlin Wall, a potent symbol of the Cold War rivalry, was dismantled. The elimination of physical barriers between Eastern and Western Europe resulted in an explosion of migration from Communist countries in the East.
46. See LOESCHER, supra note 4, at 22.
47. See also Bimal Ghosh, The Exodus That Could Explode, FIN. TIMES, Jan. 23, 1991, at 15. In December 1991, the Soviet Union formally dissolved into twelve independent republics. The Western allies, including the United States, recognized the Russian Federation as the legal successor state to the U.S.S.R. Although the Soviet military threat to Europe had diminished since the revolutionary events of 1989, the final disintegration of the Soviet Union effectively signaled the end of the Cold War.
48. See Michael Wines, End of the Soviet Union, N.Y. TIMES, Dec. 26, 1991, at A1.
49. See also infra note 61.
50. See generally Paul Weis, Convention Refugees and De Facto Refugees, in AFRICAN REFUGEES AND THE LAW 15 (Goran Melander & Peter Nobel eds., 1978). In reference to the formulation of the 1967 refugee definition, Weis notes: As one who has participated in the drafting of the convention, I can say that the drafters did not have specific restrictions in mind when they used this terminology. Theirs was an effort to express in legal terms what is generally considered as a political refugee. The Convention was drafted at a time when the cold war was at its height. The drafters thought mainly of the refugees from Eastern Europe and they had no doubt that these refugees fulfilled the definition they had drafted. Id. at 15.
51. LOESCHER, supra note 4, at 9.
52. Refugee Digest, supra note 5, tbl. 1. This figure includes refugees (14.48 million), returnees (5.42 million), internally displaced persons (3.98 million), and "others" (3.5 million). "Others" includes individuals who are outside their country but who have not been formally recognized as refugees. This definition encompasses persons who have been granted protection on a temporary basis or for humanitarian (non-Convention) reasons. An example would be the UNHCR-assisted victims in the former Yugoslavia.
53. For purposes of this Note, these nations include Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Spain, Sweden, Switzerland, the United Kingdom, and the United States. The Secretariat for Inter-governmental Consultations estimates that 660,600 asylum applications were processed in these countries in 1991 alone. LOESCHER, supra note 4, at 74.
54. Martin, supra note 26, at 757 ("If someone had risked his life to escape the East's barbed wire, or had put up with the privations of refugee camps elsewhere in the world, it seemed churlish to doubt the seriousness of the claim.").
55. In particular, the United States accepted large numbers of refugees from Eastern Europe, including Hungary, Czechoslovakia, Poland, Yugoslavia, and the U.S.S.R. In the Western Hemisphere, the majority of refugees were fleeing communist regimes in Cuba and Nicaragua. From 1960 to 1967, 185,487 refugees from Cuba were granted admission into the United States. After the U.S. military withdrawal from Vietnam, the number of refugees from Indochina soared, totaling 290,075 during the period from 1975 to 1979. Refugees from the Peoples Republic of China, which was not considered part of the Soviet bloc, were also admitted in relatively large numbers throughout the years following the 1949 Communist Revolution in that country.
56. CONG. RES. SERVICE, 96TH CONG., 1ST SESS., WORLD REFUGEE CRISIS: THE INTERNATIONAL COMMUNITY'S RESPONSE, REPORT TO THE COMMITTEE ON THE JUDICIARY 213 (1979) [hereinafter WORLD REFUGEE CRISIS].
57. See David A. Martin, The New Asylum Seekers, in THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980s 1, 9-11 (David A. Martin ed., 1988).
58. See generally JOSEPH CERQUONE, UNCERTAIN HARBORS: THE PLIGHT OF THE VIETNAMESE BOAT PEOPLE 5 (1987) (emphasizing the distinctly "Cold War flavor" of U.S. refugee policy);
59. BARBARA M. YARNOLD, REFUGEES WITHOUT REFUGE: FORMATION AND FAILED IMPLEMENTATION OF U.S. POLITICAL ASYLUM POLICY IN THE 1980's 5-20 (1990) (discussing how U.S. decision-makers were overwhelmingly influenced by whether an alien was from a hostile, i.e., Communist, country of origin).
60. See Martin, supra note 26, at 757.
61. Prior to the Refugee Act of 1980, U.S. law contained no general definition of a refugee. See Ira J. Kurzban, A Critical Analysis of Refugee Law, 36 U. MIAMI L. REV. 865, 874-75 (1982). There were also no statutory provisions for asylum. Although the Immigration and Naturalization Service (I.N.S.) promulgated asylum regulations, these procedures were haphazardly applied. Id. at 875 n.61.
62. Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101-1525 (1994)).
63. The physical persecution standard was inconsistent with the 1951 Convention requirements. See supra note 32 and accompanying text. In 1965, Congress amended the statute, and "physical persecution" was replaced by "persecution on account of race, religion, or political opinion." Pub. L. No. 89-236, § 11, 79 Stat. 918 (1965) (amending 8 U.S.C. § 1253) (current version at 8 U.S.C. § 1253(h) (1994)). This change was made despite the fact that the United States had not formally acceded to the Convention and would not do so until it adopted the United Nations Protocol Relating to the Status of Refugees in 1968.
64. See 1967 Protocol, supra note 9. However, even under this new standard, the Attorney General could favorably exercise discretion only if a particular alien faced a "clear probability of persecution."
65. See, e.g., Matter of Joseph, 13 I. & N. Dec. 70, 72 (BIA 1968);
66. Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert denied, 390 U.S. 1003 (1968);
67. Lena v. INS, 379 F.2d 536,538 (7th Cir. 1967). Aliens from noncommunist countries had to satisfy a high standard of proof to successfully petition the government to withhold their deportation.
68. See, e.g., Cistemas-Estay v. INS, 531 F.2d 155 (3d Cir. 1976); Gena v. INS, 424 F.2d 227 (5th Cir. 1970).
69. Immigration and Nationality Act, § 212(d)(5) (1952) (current version at 8 U.S.C. § 1182(d)(5) (1994)). The "parole" power came to be used far beyond the scope for which it was originally intended, i.e., for aliens who required immediate medical attention or whose presence was required as a witness or for purposes of prosecution.
70. See H.R. REP. No. 1365, 82d Cong., 2d Sess. 52 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1706. However, individuals seeking refuge from communist nations were the primary beneficiaries of this provision. See Kurzban, supra note 45, at 870-71.
71. See generally WORLD REFUGEE CRISIS, supra note 41.
72. Section 201 of the Refugee Act of 1980 defines as a refugee: any person who is outside any country of such person's nationality ⋯ and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
73. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 102 (1980) (amending 8 U.S.C.§ 1101(a)). The Refugee Act of 1980 limited the use of parole to a case-by-case basis.
74. See 8 U.S.C. § 1182(d)(5)(B) (1994).
75. This provision authorizes the President to designate annually the number of refugees and persons of special humanitarian concern from specific geographic locations who may enter the United States. 8 U.S.C. § 1157(a) (1994).
76. In 1982, the Board of Immigration Appeals upheld the discretionary denial of asylum to an alien who had established likelihood of persecution. Matter of Salim, 181. & N. Dec. 311 (BIA 1982). Arguably, this decision has resulted in the frequent denial of asylum as a matter of discretion.
77. See Arthur C. Helton, The Proper Role of Discretion in Political Asylum Determinations, 22 SAN DIEGO L. REV. 999, 1000 (1985).
78. In the years immediately following passage of the Refugee Act of 1980, less than five percent of the admissions under the annual parole program came from noncom-munist nations. See Kurzban, supra note 45, at 879-80 (suggesting that the 1980 Act "institutionalizes political choice as the primary criterion for allocating refugee admissions").
79. Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L. No. 101-167, 103 Stat. 1195 (1989) [hereinafter Foreign Operations Act]. Foreign Operations Act § 599(D).
80. "Well-founded fear" is the standard adopted by the 1951 Convention, and codified by the United States in the 1980 Refugee Act. See supra notes 32, 50 and accompa-nying text. By establishing a "credible basis for concern" standard for certain groups of asylum seekers, Congress bestowed preferential treatment. A credible basis for concern is established if the alien asserts that a "similarly situated individual, in his or her geographic locale" has been persecuted or the alien has "knowledge, either from having read of or heard of ⋯ [persecution] as affecting persons in the same category residing elsewhere in the home country." H.R. CONF. REP. NO. 344, 101st Cong., 1st Sess., 135 CONG. REC. H8495, H8515 (daily ed. Nov. 13, 1989).
81. Immigration Act of 1990, Pub. L. No. 101-649, § 104(d), 104 Stat. 4978, 4985 (1990).
82. By selectively relaxing refugee standards to accommodate certain groups for ideological reasons, the United States not only violates the spirit of the 1951 Convention, but it also contravenes Article 3 of the Convention, which requires contracting states to "apply the provisions of this Convention to refugees without discrimination as to ⋯ country of origin." 1951 Convention, supra note 8, art. 3.
83. Pierre Bertrand, An Operational Approach to International Refugee Protection, 26 CORNELL INT'L L.J. 495, 498 (1993).
84. On September 10, 1989, Hungary opened its border with Austria to allow East German refugees, gathered at the West German embassy in Budapest, to reach the West. East German President Erich Honecker subsequently permitted refugees in the Prague and Warsaw embassies to board trains for West Germany. He then, however, banned visa-free travel to Czechoslovakia out of fear that East German citizens would use that country as an escape route. In response to several large political protests during the month of October, the East German government eventually eased travel restrictions on October 24, 1989, thereby allowing East German citizens to enter Czechoslovakia. On November 4, Czechoslovakia opened its borders with West Germany, while 500,000 people demonstrated for democracy in the streets of East Berlin. Within five days, East Germany officially opened its western borders, resulting in the first major exodus since the Berlin Wall was built in 1961. See Ferdinand Protzman, Thousands Swell Trek to the West by East Germans, N.Y. TIMES, Sept. 12,1989, at A1;
85. Clamour in the East: A Singular Month Produces an Exodus, N.Y. TIMES, NOV. 10, 1989, at A16.
86. See LOESCHER, supra note 4, at 25 (discussing connection between ethnic conflict in the former Yugoslavia and the end of the Cold War).
87. Refugees: Keep Out, ECONOMIST, Sept. 19, 1992, at 64.
88. Paul Lewis, Cuba Vows to End Exodus in Return for a Rise in Visas, N.Y. TIMES, Sept. 10, 1994, at A1.
89. Tim Golden, A Dubious Pact, N.Y. TIMES, Sept. 10, 1994, at A4.
90. Id.
91. Dublin Convention, supra note 11.
92. Schengen Agreement and Convention, supra note 10.
93. The Schengen and Dublin Conventions grant the citizens of EU Member States unrestricted freedom of movement within the Union, but condition this freedom upon the adoption by each state of visa requirements and carrier sanctions intended to regulate the entry of foreigners into the EU. See infra notes 76-78 and accompanying text. In addition, these conventions assign responsibilities for asylum determinations to the entry state and require EU members to defer to the decision of that state. Because a sole state is responsible for handling an asylum request, the ability of the asylum seeker to choose a state with more liberal asylum laws is greatly reduced. See infra note 77 and accompanying text.
94. This "fear" of foreigners reflects the fact that Europeans have come to view foreigners as "threats to regional stability and security." James C. Hathaway, Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L LJ. 719, 720 (1993). In addition, there is "a pervasive belief that the cultural and racial heterogeneity which accompanies immigration jeopardizes European identity and solidarity."
95. Id. at 720.
96. See also W.R. Böhning, Integration and Immigration Pressures in Western Europe, 130 INT'L LAB. REV. 445 (1991). The fear of foreigners may also be rationalized by a concern that foreigners will compete with citizens for scarce jobs and housing.
97. See Craig R. Whitney, Europeans Struggle to Balance New Muslim Immigrants and Old Ways, N.Y. TIMES, May 6, 1995, at A4. But cf. DANIELE JOLY & CUVE NETTLETON, REFUGEES IN EUROPE 13 (1990) ("Economic recession and unemployment have often been put forward as an explanation for this [restrictionist] trend, but by itself it does not seem to be a sufficient explanation: Norway became one of the strictest countries for asylum-seekers ⋯ at a time when there was practically no unemployment.").
98. Daniel Kanstroom, The Shining City and the Fortress: Reflections on the "EuroSolution" to the German Immigration Dilemma, 16 B.C. INT'L & COMP. L. REV. 201, 230 (1993).
99. See Kay Hailbronner & Jörg Polakiewicz, Non-EC Nationals in the European Community: The Need for a Coordinated Approach, 3 DUKE J. COMP. & INT'L L. 49, 50-55 (1992) (discussing reluctance of member states to cede sovereignty with regard to migration policy).
100. See also Alan Cowell, Seven European Union Nations Form a Passport-Free Zone, N.Y. TIMES, Nov. 27, 1995, at A6 (noting that passport-free zone may make it simpler for unlawful job-seekers and criminals to traverse Western Europe once they gain entry to any country within the Schengen group). Immigration and asylum are not the only issues which have sparked debate among European leaders. The United Kingdom has recently backed away from the political and monetary union envisioned in the Maastricht treaty. Specifically, Prime Minister Major has expressed reluctance to join a single European Union currency by 1997.
101. See John Darnton, Major Turns Cool to British Links with European Union, N.Y. TIMES, Feb. 5,1995, at A10. One author refers to European integration as an erosion of state sovereignty which has "sparked a backlash in which traditional nationalist elements have combined with economic interests who fear that the removal of protective barriers will hurt their position and privileges."
102. GIDEON GOTTLIEB, NATION AGAINST STATE 17 (1993).
103. See generally Gil Loescher, The European Community and Refugees, 65 INT'L AFF. 617 (1989) (arguing that an asylum policy based on deterrence weakens refugee protection).
104. See Treaty on European Union, Feb. 7, 1992, Declaration on Asylum, 31 I.L.M. 247, 373 (identifying harmonization of asylum policies as an aim of the European Conference).
105. Refugees: Keep Out, supra note 63, at 64.
106. See generally Hathaway, supra note 70 (suggesting that under the guise of harmo-nization, the EU governments have renounced their commitments to refugee protection and the principle of nonrefoulement).
107. Schengen Convention, supra note 10, art. 26.
108. The risk of refoulement is increased by forcing carriers to verify visas and other travel documentation. These visa requirements do not distinguish between asylum seekers and other aliens. By essentially placing responsibility for asylum decisions in the hands of individuals who are untrained in the procedures of refugee principles and motivated by economic rather than humanitarian considerations, uiese provisions violate the spirit of the 1951 Refugee Convention.
109. Report of the European Commission on Immigration Law, PAUL. EUR. DOC. (SEC 1857) 5 (1991).
110. 1951 Convention, supra note 8, art. 33.
111. GG art. 16a(2). Prior to the Amendment, the provision that "persons persecuted on political grounds shall enjoy the right of asylum" was applied liberally by the German courts.
112. See Sam Blay & Andreas Zimmerman, Recent Changes in German Refugee Law: A Critical Assessment, 88 AM. J. INT'L L 361, 362 (1994).
113. As of October 1992, Germany was receiving approximately 50,000 refugees per month, resulting in an annual total of 438,191. This mass influx accounted for a 71% increase in refugee applicants from 1991. Blay & Zimmerman, supra note 81, at 361.
114. Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, 33 VA. J. INT'L L. 503, 514 & nn.75-77 (1993).
115. European Topics, INT'L HERALD TRIB., March 18, 1993, at 6.
116. G art. 16a.
117. (1) The relevant portions of the Amendment state: Persons persecuted on political grounds shall enjoy the right of asylum. (2) Paragraph 1 may not be invoked by persons who enter from a member state of the European Communities or from a third country where the application of the Convention Relating to the Status of Refugees and the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR] is guaranteed. Countries outside the European Communities to which sentence 1 applies shall be determined by law, subject to the approval of the BundesraL In such cases deportation measures may be carried out regardless of an appeal. (3) A law subject to the approval of the Bundesrat may determine the states whose legal situation, application of the law and general political situation seem to ensure that there is no political persecution or inhuman or degrading treatment or punishment. An alien originating in such a state will not be considered to be politically persecuted unless he produces reasons why he is politically persecuted contrary to the presumption of sentence 1. (4) In cases arising under paragraph 3, deportation measures will only be suspended by a court if there are serious doubts about the legality of the measure. This also applies to deportation measures in other manifestly unfounded cases. In diat regard the scope of review can be limited and subsequent argument disregarded. Details shall be prescribed by statute. (5) Paragraphs 1 to 4 are widiout prejudice to treaties between member states of the European Communities or between member states and third states that make arrangements, with due regard to the obligations under the Convention Relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms, whose application is guaranteed by the parties to these treaties, for the examination of applications for asylum, including the reciprocal recognition of asylum decisions. Id.
118. The 1951 Convention provides that contracting states may not "impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ⋯ enter or are present in their territory without authorization." 1951 Convention, supra note 8, art. 31. See supra note 34 and accompanying text. Germany has read this provision to mean that if asylum seekers do not come directly from their State of origin, where they may be subject to persecution, the prospective receiving State may impose certain sanctions. However, since the 1951 Convention does not restrict a refugee to a particular State of refuge, one can argue that a refugee is not precluded from applying for asylum in a third State by merely traveling through a State other than their State of origin. According to one commentator, the implications of the German interpretation are considerable: To be considered for asylum under the new German law, a person must travel directly from the state of persecution to a German port. Since Germany is virtually surrounded by secure states, the only way the asylum seeker can reach Ger-many directly is by air or by sea. As almost 90 percent of all asylum seekers in Germany come by land through one of its neighbors, most of them will not be considered for, let alone granted, the right of asylum. Blay & Zimmermann, supra note 81, at 369.
119. Since the amendment was enacted, the number of foreigners seeking asylum in Germany has decreased by more than 70% from 438,191 applications in 1992 to 127,210 in 1994. German Supreme Court Reviews Asylum Laws, REUTERS, NOV. 21, 1995, available in LEXIS, News Library, Reuwld File.
120. See Haiti's Military Assumes Power After Troops Arrest the President, N.Y. TIMES, Oct. 1, 1991, at A1.
121. Between September 30 and November 25, 1991, the United States interdicted 4,530 Haitians on the high seas. Bill Frelick, Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection, 26 CORNELL INT'L L.J. 675, 686 (1993). By August 1994, the United States had provided shelter for more than 21,000 Haitians at the U.S. military installation in Guantanamo Bay, Cuba. Larry Rohter, U.S. Starts the Return of Haitians from Guantanamo, N.Y. TIMES, Jan. 7, 1995, at A3.
122. See Pamela Constable, As Political Crackdown Widens in Haiti, U.S. Returns 272 More Refugees, BOSTON GLOBE, May 29, 1992, at 2 (detailing the harassment of Aristide supporters and curtailment of press freedoms in Haiti since the coup).
123. Support to the Democratic Government of Haiti, OAS MRE/Res.1/91 (Oct. 3, 1991);
124. Support for Democracy in Haiti, OAS MRE/Res. 2/91 (Oct. 8, 1991).
125. Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992).
126. Whether the Coast Guard's interception of Haitian refugees on the high seas contravened domestic and international law was litigated in the federal courts. The Eleventh and Second Circuits reached contrary conclusions on this issue. Haitian Refugee Center v. Baker, 953 F.2d 1498 (11th Cir. 1992), cert denied, 112 S. Ct. 1245 (1992);
127. Haitian Centers Council v. McNary, 969 F.2d 1350 (2d Cir. 1992), rev'd, 113 S. Ct. 2549 (1993). The Supreme Court addressed the legality of interdiction in Sale v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993).
128. See infra note 106 and accompanying text (discussing Supreme Court decision in Sale upholding interdiction policy as legal under U.S. and international law).
129. Lizette Alvarez, Immigration: A Contentious Topic, ST. PETERSBURG TIMES, June 14, 1994, at 1A.
130. Immigrants Cause Unfair Burden, Governor Says, TIMES-PICAYUNE, Mar. 14, 1994, at A4.
131. Alvarez, supra note 95, at 1A.
132. A 1994 report by the Center for Immigration Studies estimated that immigrants generated a net national deficit of $29.1 billion in 1992. A Flickering Torch, SUN SENTI-NEL (Fort Lauderdale), Oct. 30, 1994, at 4H.
133. Id.
134. The district court dismissed Florida's plea for relief from the costs associated with illegal immigration on December 19,1994. Governor Lawton Chiles referred to the decision as a "temporary setback" and indicated the state's intention to appeal.
135. See Mireya Navarro, Florida's Plea for Immigration Relief Fails, N.Y. TIMES, Dec. 21, 1994, at A20. A U.S. district court in California similarly dismissed the California lawsuit, holding that only Congress and the President can decide how to allocate federal funds on immigration problems. California was seeking $2.4 billion and is also appealing the case.
136. See Reynolds Holding, Bid to Recoup Immigration Costs Denied, S.F. CHRON., Feb. 14, 1995, at A1.
137. State of California Proposition 187, Nov. 8, 1994, 1994 Cal. Legis. Serv. Prop. 187 (West) (codified in scattered sections of California's Penal, Welfare and Institutions, Health and Safety, Education, and Government codes). A recent CNN/USA Today poll showed that 62% of individuals polled wanted their states to eliminate benefits to undocumented aliens.
138. David LaGesse, Discontent Grows Toward Immigrants, SUN SENTINEL (Fort Lauderdale), Jan. 8, 1995, at 4A.
139. See also B. Drummond Ayres Jr., Anti-Alien Movement Spreading in Wake of California's Measure, N.Y. TIMES, Dec. 4, 1994, at A1 (discussing how California is reshaping U.S. immigration debate as "Proposition 187" movements gain momentum in other states). Proposition 187 is under legal challenge. In November 1994, a district court in California issued a temporary restraining order blocking immediate enforcement of the initiative's bans on non-emergency medical, educational, and social services for illegal immigrants, and also ordered a temporary halt to the initiative's requirement that police and government agencies report suspected illegal immigrants to the Immigration and Naturalization Service and the state attorney general's office.
140. See Paul Feldman & James Rainey, Parts of Prop. 187 Blocked by Judge, LA. TIMES, Nov. 17, 1994, at A1;
141. H. Eric Schockman, Why Prop. 187 Needs Judicial Review, LA. TIMES, Jan. 22, 1995, at B19. The Ninth Circuit held that the district court acted appropriately in blocking most portions of Proposition 187 from taking effect prior to an upcoming trial to determine its constitutionality. Gregorio T. v. Wilson, 59 F.3d 1002 (9th Cir. 1995).
142. See John Aloysius Farrell, Open Doors/Closing Minds, BOSTON GLOBE, Feb. 23, 1992, at 61 (supporting Buchanan's view that if the current trend continues, the 1990s may surpass the 1900s as the single biggest decade of immigration with more than a million immigrants a year). In the 1996 presidential campaign, Pat Buchanan once again put forth a nationalistic message, denouncing illegal immigration and supporting protectionist trade policies.
143. Adam Nagoumey, Buchanan Refuses to Let Boos Spoil the Fun, N.Y. TIMES, Feb. 23, 1996, at A22;
144. James Bennet, Buchanan, Exalted, Pushes Economic Insecurity Theme, N.Y. TIMES, Feb. 22, 1996, at A1.
145. Farrell, supra note 102, at 61 (quoting Buchanan).
146. Id.
147. See supra notes 100-01 and accompanying text. See also Peter Passell, A Job-Wage Conundrum: Crises in Cuba and Haiti Resurrect Debate About Immigrants and Employment in U.S., N.Y. TIMES, Sept. 6, 1994, at Dl (suggesting that more unskilled immigrants mean lower wages and fewer low-end jobs for those already here).
148. Sale v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993). In Sale, the Supreme Court addressed the question of whether the interdicted Haitians had cognizable legal rights under U.S. domestic law or international law. The relevant U.S law is Section 243(h)(1) of the I.N.A., which states: "The Attorney General shall not deport or return any alien ⋯ to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)(1) (1988 & Supp. IV 1992). Respondents contended that the removal of the words "within the United States" and the addition of the word "return" to this section reflected the Congressional intent in 1980 to conform U.S. law with Article 33(1) of the 1951 Refugee Convention and 1967 Protocol, assuring that the benefits of the section applied extraterritorially (thus encompassing refugees intercepted on the high seas). Sale, 113 S. Ct. at 2558. Petitioners rejected this assertion, arguing that Section 243(h)(1) does not apply to actions of the President and Coast Guard on the high seas. Id. The Court reasoned that because no I.N.A. provision authorizes exclusion or deportation proceedings outside of the United States, Section 243(h)(1) cannot be interpreted to limit the Attorney General's actions in places where she has
149. The Court then addressed the international law issue. The relevant segment of Article 33(1) of the 1951 Refugee Convention reads: "No Contracting State shall expel or return ('refouler') a refugee ⋯ to the frontiers of territories where his life or freedom would be threatened on account of his race, religion⋯." 1951 Convention, supra note 8, art. 33, para. 1. Interpreting this provision, the Court concluded that the phrase "expel or return (refouler)" paralleled the phrase "deport or return" in I.N.A. Section 253(h)(1). Using the American legal distinction between deportation and exclusion, the Court reasoned that "return" as used in the treaty must refer only to "the exclusion of aliens who are merely on the threshold of initial inquiry." Sale, 113 S. Ct. at 2563 (quoting Shaughnessy v. United States ex rel. Mezei, 357 U.S. 206,212 (1953)). Arguably, the U.S. government would not have instituted a policy of interdiction without the belief that these Haitians were indeed "on the threshold of initial entry." Id. at 2569 (Blackmun, J. dissenting). This interpretation of "return" seems strained at best especially since the Convention qualifies the term by placing "refouler" in parentheses. The Court conceded that "refouler" is translated as "repulse" or "drive back," but then used the definition to distinguish interdiction. "Return" connotes a defensive act of resistance at the border as opposed to the active transportation of refugees to another destination. Id. at 2564.
150. See, e.g., Hiroshi Motomura, Haitian Asylum Seekers: Interdiction and Immigrants Rights, 26 CORNELL INT'L L.J. 695 (1993);
151. David A. Martin, Interdiction, Intervention, and the New Frontiers of Refugee Law and Policy, 33 VA. J. INT'L L. 473 (1993).
152. The U.S. State Department expressed dismay at the repatriation of Vietnamese refugees by Hong Kong in December 1991, only to be confronted widi questions about U.S. interdiction of Haitian boat people. See Barbara Basler, Hong Kong Ousts More Boat People, N.Y. TIMES, Dec. 11, 1991, at A16 (discussing repatriation of Vietnamese).
153. During his campaign for president, Bill Clinton stated: I am appalled by the decision of the Bush Administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylumThis process must not stand. It is a blow to the principle of first asylum and to America's moral authority in defending the rights of refugees around the world.
154. Clinton Continues Summary Return of Haitians: U.S. Lawyers Investigate In-Country Processing, REFUGEE REP., Jan. 29, 1993, at 1, 2 (quoting then Presidential Candidate Bill Clinton).
155. See, e.g., Frelick, supra note 90, at 688.
156. This was not the first time that South Florida's shores were flooded with Cuban refugees. In 1980, the Carter Administration allowed an estimated 125,000 Cubans to enter the United States. The "Mariel" Boadift, named for the Cuban port of Mariel from which the asylum seekers set off, changed the demography of Miami, whose residents are currently over 60% Cuban. In addition, Mariel imposed an added cost on American taxpayers because many of the refugees were in fact convicted criminals in Cuba who were subsequently incarcerated in the United States.
157. See Edward Cody, Florida Seeking to Cope with Influx, WASH. POST, Dec. 15, 1984, at A12.
158. Arguably, U.S. foreign and trade policy toward Cuba was instrumental in causing the mass flow of refugees. Since 1960, the United States has maintained a strict economic embargo against Cuba. In 1992, the Bush Administration increased economic pressure on the Castro regime by passing the Cuban Democracy Act. These actions, combined with Cuba's loss of its principal benefactor, the Soviet Union, have caused the standard of living in Cuba to disintegrate even further.
159. See Seth Borenstein, Immigration Policy Needs Direction, SUN SENTINEL (Fort Lauderdale), Oct. 30, 1994, at 3S.
160. See Richard L. Berke, Governor Chiles Seizes the Refugee Issue, N.Y. TIMES, Sept. 11, 1994, at A22 (suggesting that the Governor's efforts to stem the exodus and influence U.S. refugee policy would benefit him in an election year);
161. Deborah Sharp, Action on Cuba Could Pay Off For Chiles, USA TODAY, Aug. 23, 1994, at 2A (emphasizing the opposition of Florida voters to a government policy which gives Cuban refugees preferential treatment).
162. See supra note 64 and accompanying text.
163. Under the agreement, the Administration set a minimum level of 20,000 visas for Cuban immigration, and the Administration also agreed to issue entry visas for 500 close relatives of Cubans already living in the United States. In addition, for one year only, the United States agreed to grant entry to all Cubans on the American immigration waiting list. See Lewis, supra note 64, at A1. More than 200,000 Cubans, most of whom did not flee the island in August 1994, applied for the 20,000 available visas. See What Refuge for Refugees, ST. LOUIS POST-DISPATCH, Feb. 5, 1995, at 2B. Consequently, only 5,000 of the 27,500 Cuban refugees who resided at Guantanamo Bay Naval Base were granted entry in the first year of the accord. U.S. Meets Quota for 20,000 Visas in Cuban Award, WASH. POST, Aug. 22, 1995, at A9. The others remained in a limbo-like existence, the victims of a shift in U.S. policy. Most of the refugees gradually gained entry to the United States. On January 31,1996, the U.S. government officially closed down the tent cities which had been erected at Guantanamo a year and a half earlier.
164. Mireya Navarro, Last of Refugees From Cuba in '94 Flight Now Enter U.S., N.Y. TIMES, Jan. 31,1996, at A8.
165. Steven Greenhouse, U.S. Will Return Refugees to Cuba in Policy Switch, N.Y. TIMES, May 3, 1995, at A1.
166. S.C. Res. 940, U.N. SCOR, 49th Sess., 3413th mtg., U.N. Doc. S/RES/940 (1994).
167. In his speech, President Clinton emphasized that Three hundred thousand more Haitians, 5 percent of their entire population, are in hiding in their own country. If we don't act, they could be the next wave of refugees at our door. We will continue to face the threat of a mass exodus of refugees and its constant threat to stability in our region and control of our borders. Address to the Nation on Haiti, 30 WEEKLY COMP. PRES. DOC. 1779, 1781 (Sept. 15, 1994).
168. President Clinton sent former U.S. President Jimmy Carter, retired Chairman of the Joint Chiefs of Staff General Colin L. Powell, and Senator Sam Nunn of Georgia to Haiti in a final diplomatic effort to avert U.S. military action. The President authorized the emissaries to discuss arrangements for the peaceful departure of Haiti's ruling junta.
169. Douglas Jehl, Showdown With Haiti: Holding Off, Clinton Sends Carter, Nunn and Powell to Talk to Haitian Junta, N.Y. TIMES, Sept. 17, 1994, at A1.
170. This final attempt at diplomacy resulted in an agreement which provided for the lifting of economic sanctions and the embargo imposed on Haiti and the early "retirement" of certain Haitian military officers who had been in de facto control of the nation. Mission to Haiti: Text of the Agreement Averting U.S. Invasion of Haiti, N.Y. TIMES, Sept. 20, 1994, at A12 [hereinafter Haiti Agreement).
171. At the time the agreement was reached, the United States had positioned twenty warships within striking distance of the island. Throughout the talks, the emissaries communicated to the junta the fact that a U.S. invasion was imminent and that the damage which would be inflicted on the Haitian people in the event of a military operation would be severe. Elaine Sciolino, Mission to Haiti: Diplomacy, N.Y. TIMES, Sept. 20, 1994, at A1. The agreement reached with the junta provided for a U.S. military mission to supervise the transition in power. See Haiti Agreement, supra note 119, at A12.
172. See F. Andy Messing, Jr., Perspective on Haiti: A Peacekeeping Job Half-Done, L.A. TIMES, Feb. 21,1995, at B5 (criticizing the U.S. peacekeeping effort in Haiti and discussing the continued costs of restoring President Aristide to power).
173. U.N. CHARTER art. 51.
174. See also infra text accompanying notes 132-38.
175. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, reprinted in 25 I.L.M. 1023 (1986) (construing the prohibition in Article 2(4) broadly and the exception in Article 51 narrowly). The International Court of Justice is the principal judicial organ of the United Nations. U.N. CHARTER art. 92.
176. U.N. CHARTER art. 2, ¶ 4.
177. U.N. CHARTER art. 42.
178. S.C. Res 940, supra note 117 (citing the "desperate plight of refugees" as a reason for authorizing intervention in Haiti).
179. The refugee justification is flawed in another sense as well. If a return to democracy is certain to stop the flight, one can't help but wonder why Mexican citizens living under a duly elected government continue to flood the cities of Texas and Southern California.
180. S.C. Res. 940, supra note 117.
181. U.N. CHARTER art. 39.
182. Michael Reisman & Myres S. McDougal, Humanitarian Intervention to Protect the Ibos, in HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 167-195 (Richard B. Lillich ed., 1973)..
183. Tom J. Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185, 190 (Lori Fisler Damrosch & David J. Schefler eds., 1991).
184. The third stated purpose of the United Nations is: To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion[.] U.N. CHARTER art.1,1 3 (emphasis added).
185. U.N. CHARTER art. 51. See also Theodor Meron, Commentary on Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 212, 213 (Lori Fisler Damrosch & David J. Schefler eds., 1991) (citing Nicar. v. U.S., 1986 I.C.J. 14, in which the I.C.J. determined that the only exception to Article 2(4) is Article 51).
186. See Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT v. MIGHT 37 (Council on Foreign Relations ed., 1989).
187. U.N. CHARTER pmbl. Referring to the purpose of the Charter, one scholar stated: [i]n the future, the only "just war" would be war against an aggressor-in self-defense by the victim, in collective defense of the victim by others, or by all. Nations would be assured independence, the undisturbed enjoyment of autonomy within their territory, and their right to be let alone.
188. Henkin, supra note 134, at 39.
189. U.N. CHARTER art. 39.
190. See Farer, supra note 131, at 191.
191. U.N. CHARTER art. 2, ¶ 7.
192. See generally G.F. HEGEL, THE PHILOSOPHY OF RIGHT (T.M. Knox trans., 1965) (articulating the notion of the moral personality of the State).
193. See also J. RAWLS, A THEORY OF JUSTICE 378 (1971) (suggesting that the consequence of equality of nations is "the principle of self-determination, the right of a people to setde its own affairs without the interference of foreign powers").
194. See, e.g., FERNANDO TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988);
195. HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973).
196. See Serious Events in the Republic of Panama, OAS CP/Res. 534(800/89), Dec. 22, 1989 (denouncing U.S. invasion of Panama); The Situation in Grenada, G.A. Res. 38/7, U.N. GAOR, 38th Sess., Agenda Item 145, U.N. Doc. A/38/L.8 (1983) (condemning U.S. military deployment to Grenada).
197. Address to the Nation on Events in Lebanon and Grenada, 19 WEEKLY COMP. PRES. DOC. 1497, 1500-01 (Oct. 27, 1983) [hereinafter Grenada Address].
198. Id. at 1501.
199. Id.
200. For the text of the O.E.C.S. invitation, see WILLIAM C. GILMORE, THE GRENADA INTERVENTION: ANALYSIS AND DOCUMENTATION 100 (1984).
201. Reagan later recalled in his memoir, "there was only one answer I could give to those six countries who [had] asked for our help." RONALD REAGAN, AN AMERICAN LIFE 450 (1990).
202. Grenada Address, supra note 142, at 1501.
203. The three arguments were: (1) protection of nationals, (2) collective action under Article 52 of the U.N. Charter, and (3) the request to invade by lawful authority, namely Grenadian Governor-General Paul Scoon.
204. See Letter from Davis R. Robinson, Legal Adviser, U.S. Department of State, to Professor Edward Gordon, Chairman of the Grenada Committee of the American Bar Association's Section on International Law and Practice (Feb. 10,1984), in JOHN NORTON MOORE, LAW AND THE GRENADA MISSION 125-29 (1984).
205. See generally Robert J. Beck, International Law and the Decision to Invade Grenada: A Ten-Year Perspective, 33 VA. J. INT'L L. 765 (1993) (suggesting that the Reagan Administration feared the possible use of the medical students as hostages).
206. Id. at 776.
207. But see ALLAN GERSON, THE KIRKPATRICK MISSION 227 (1991) (suggesting that the Grenada operation was really about a fear that the island might become "another Cuba" and threaten its eastern Caribbean neighbors).
208. Beck, supra note 149, at 804; ANTHONY CLARK AREND & ROBERT J. BECK, INTERNATIONAL LAW & THE USE OF FORCE: BEYOND THE U.N. CHARTER PARADIGM 93-111 (1993).
209. Commentators have suggested that the primary goal behind the U.S. action was the removal of a dictator, who had become increasingly hostile toward the United States, and his replacement with the democratically elected Panamanian President Guillermo Endara. Though the overall result of the intervention may have been to restore democracy, commentators have argued that the U.N. Charter prohibits such action: "You cannot justify the invasion of a foreign country on the grounds that you think its ruler is wicked, because the most powerful countries could then just define their weaker opponents as wicked and crush them."
210. Gwynne Dyer, Bush's Flouting of International Law Must Be Condemned, CHI. TRIB., Dec. 26, 1989, at 23.
211. See Series of Incidents Prompted Response, USA TODAY, Dec. 21, 1989, at 5A.
212. Id.
213. See Abraham F. Lowenthal, Are There Rules Just For Us?, L.A. TIMES, Dec. 22, 1989, at B7.
214. Letter to the Speaker of the House and the President Pro Tempore of the Senate on United States Military Action in Panama, 25 WEEKLY COMP. PRES. DOC. 1984, 1985 (Dec. 21, 1989).
215. Id.
216. Panama Canal Treaty, Sept. 7, 1977, U.S.-Pan., U.S. Reservation, 33 U.S.T. 39, 41.
217. See Robert Graham, U.S. Military Intervention: International Jurists Question Grounds for American Action, FIN. TIMES, Dec. 22, 1989, at 6.
218. See, e.g., Michael J. Berlin, U.S. Allies Join in Lopsided U.S. Vote Condemning Invasion of Grenada, WASH. POST, Nov. 3, 1983, at A1.
219. See, e.g., Vladimir Kartashkin, Human Rights and Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 202, 204-05 (Lori Fisler Damrosch & David J. Scheffer eds., 1991).
220. The author has included this section of the Note in order to accentuate the con-tradiction between the Haiti Resolution and the U.N. condemnation of U.S. military intervention in Grenada and Panama. After considering the legal rationale offered by the Reagan and Bush Administrations, one recognizes the inherent flaws in the Security Council's analysis of the Haiti crisis.
221. See Patrick J. Buchanan, U.S. To Pay For And Enforce Peace Everywhere?, Hous. CHRON., Sept. 14,1993, at A17 (arguing that the end of the Cold War has led the United States to add military commitments while downsizing military forces).
222. In December 1992, the lame duck Bush Administration committed U.S. ground troops as part of a multinational force to ensure delivery of humanitarian aid to the war-torn country of Somalia, which has been engaged in a clan-based civil war since 1991. The war, in conjunction with a severe drought, caused a famine estimated to have killed 300,000 people within one year. Although the troops were initially scheduled to remain in Somalia for one month, the humanitarian mission was extended by the Clinton Administration. U.S. casualties mounted throughout the year. The Clinton foreign policy reached a crisis in October 1993 with the deaths of 18 U.S. soldiers in a Mogadishu street battle. U.S. reporters captured on film footage of Somalis dragging the body of a U.S. soldier through the streets of the city. More than two dozen U.S. troops died in Somalia, prompting an American withdrawal in March 1994 from the peace-keeping operation.
223. See Don Oberdorfer & Trevor Rowe, U.S. Offers Ground Troops for Intervention in Somalia, WASH. POST, Nov. 26, 1992, at A1;
224. Jane Perlez, U.S. Forces Arrive in Somalia on Mission to Aid the Starving, N.Y. TIMES, Dec. 9, 1992, at A1;
225. Daniel Williams, Joining the Pantheon of American Missteps, WASH. POST, March 26, 1994, at A18 (comparing the Somalia intervention with U.S. "misadventures" in Vietnam and Lebanon). U.S. Marines returned to Somalia in February of 1995 to provide a protective shield for the final retreat of U.N forces from that country.
226. Almost 2000 U.S. troops participated in the mission. The U.N. withdrawal marked the end of a S2 billion, two-year plus incursion in Somalia. See John Balzar, Marines Land for Somalia Pullout, LA. TIMES, Feb. 28, 1995, at A1.
227. See supra notes 118-21 and accompanying text.
228. In 1991, the world witnessed the dissolution of the former Socialist Republic of Yugoslavia. Since that time the idea of an expanded Greater Serbia has been the driving force behind Serb involvement in a war which raged for four years in the Balkans. The goal of the Serb forces, who occupied 70% of the land in Bosnia-Herzogovina, was to eventually link Serb lands in Bosnia, a U.N.-recognized state, with Serbia proper. In this quest to claim land, the Serbs, and likely the Bosnian Muslims as well, engaged in systematic violations of recognized human rights. The most serious charges asserted by the Bosnian Muslim government accuse the Serbs of engaging in ethnic cleansing as a means of nation-building. 1994 was particularly embarrassing for the five nation Contact Group, comprising Britain, France, Germany, the United States, and Russia, which had been trying, albeit unsuccessfully, to broker a lasting peace agreement. A U.N. peacekeeping force is stationed on the ground in Bosnia to assure the delivery of humanitarian aid to civilians. The United States, however, refused to place American ground troops under U.N. Command. As peacekeepers were harassed, humiliated, and held hostage, the United States pressed its allies in NATO to carry out air strikes against Serbian forces that attacked U.N.- designated safe areas. Britain and France, with sizable ground contingents stationed in Bosnia, vetoed any such action; as the world's great powers looked on helplessly, Bosnia continued to crumble and atrocities continued to go unpunished.
229. See Tony Barber, Serb Success, NATO's Failure, Bosnia's Misery: 1994: Moments That Made The Year, INDEPENDENT, Dec. 26, 1994, at 9.
230. See also Bill Schiller, How the West Didn't Win: It's Nearing Deal With the Serbs That Effectively Endorses Ethnic Cleansing as a Means of Nation-Building, TORONTO STAR, Dec. 4, 1994, at D1.
231. In September of 1995, the Bosnian Serbs faced the first substantial military strikes by NATO forces in retaliation for their siege of the U.N. safe area in Sarajevo. This bom-bardment led to an agreement among the warring parties to hold peace talks. As one commentator writes, "It has taken four years, more than a quarter of a million lives and countless broken promises from the West to reach this point of faint hope and fragile diplomatic coherence."
232. Roger Cohen, Finally Torn Apart, The Balkans Can Hope, N.Y. TIMES, Sept. 3, 1995, at E6.
233. See Bosnia After the Cease-fire, N.Y. TIMES, Oct. 15, 1995, at A1.
234. Throughout November, the Muslims, Croats, and Serbs negotiated a peace settlement in Dayton, Ohio. This accord preserves Bosnia as a single state and requests the assistance of NATO in maintaining the ceasefire. Address to the Nation on Implementation of the Peace Agreement in Bosnia-Herzogovina, 31 WEEKLY COMP. PRES. Doc. 2060.
235. See Roger Cohen, Balkan Accord: The Outlook, N.Y. TIMES, Dec. 15, 1995, at A20. In early December 1995, NATO began deploying a 60,000-strong force, including 20,000 U.S. soldiers.
236. See Robert Fox, 60,000 NATO Troops to Enforce the Deal, DAILY TELEGRAPH (London), Nov. 22, 1995, at 14;
237. Timothy Clifford, First U.S. Troops in Sarajevo, DAILY NEWS, Dec. 5, 1995, at 2.
238. However, so much blood has been shed creating ethnically pure regions that no matter how successful this long-awaited peace agreement is, it will not be possible to rebuild a completely multiethnic State. Thousands of returnees and new arrivals will likely experience tense homecomings.
239. The disintegration of Rwanda into chaos and anarchy has evoked much sympa thy from the world community, but very little action has been taken to stop or even slow the carnage. France deployed several hundred troops to Rwanda from late 1990 to late 1993 with the goal of bolstering the Hutuled government after Tutsi rebels mounted an invasion from Uganda. In August 1993, a peace agreement was brokered, and soon after, a 2500 person U.N. force entered the country. Subsequently, Belgium, the largest contingent in the U.N. peacekeeping mission, withdrew its forces when 10 Belgians were killed by the remnant of the Hutu-dominated government. The United States lacks the political will to send American troops to Rwanda, given the ill-fated 1992-93 deployment to Somalia and the absence of U.S. geopolitical interests in the area. As a result, the cease-fire has not been enforced, and the international community has shunned the opportunity to break the cycle of lawlessness and mass murder in Rwanda. The violence reached epic proportions following the death of Rwanda's president in a plane crash in April 1994 as Hutu soldiers and militia slaughtered several hundred thousand people, most of them Tutsi. Nonetheless, the Clinton Administration remains consistent in pursuing its policy of non-intervention despite the mounting death toll and a growing refugee tide.
240. See Elaine Sciolino, For West, Rwanda is Not Worth the Political Candle, N.Y. TIMES, April 15,1994, at A3;
241. Thomas W. Lippman, U.S. Troop Withdrawal Ends Frustrating Mission to Save Rwandan Lives, WASH. POST, Oct. 3, 1994, at A11;
242. Raymond Bonner, Unsolved Rwanda Mystery: The President's Plane Crash, N.Y. TIMES, NOV. 12, 1994, at A1.
243. Approximately one year after the plane crash, Rwanda remained a "scene of carnage and desolation."
244. Donatella Lorch, As Many as 2,000 Are Reported Dead in Rwanda, N.Y. TIMES, Apr. 24, 1995, at A1.
245. In an effort to get members of the Hutu ethnic group to return to their homes, the Rwandan military, now controlled by the Tutsi, closed down several refugee camps and directed 50,000 people to a hillside in Kibeho. Armed Hutu militias within this group incited the crowd to run through troop lines. The ensuing panic resulted in 2000 deaths and more than 600 injuries. Id. This atrocity did not convince the international community to take a more active role in Rwanda. In fact, the massacre was followed by a major reduction of the U.N. military presence in Rwanda.
246. Christopher S. Wren, U.N. to Withdraw Over Half of Military Force in Rwanda, N.Y. TIMES, June 10, 1995, at A5.
247. Over one million Hutu refugees in Zaire were given until the end of 1995 to return to Rwanda. This time schedule was eventually deemed unworkable. Any attempt to force such a large-scale return of Hutu refugees is likely to trigger a reoccurrence of violence in Rwanda.
248. See James C. McKinley Jr., Zaire Steps Up Pressure on Rwandans to Go Home, N.Y. TIMES, Feb. 15, 1996, at A3 (discussing how a few recent arrivals were beaten and tortured by Tutsi solders).
249. On January 6, 1995, the United States began the forced repatriation of almost 4000 Haitian refugees who had been living at Guantanamo Bay Naval Base. However, despite President Aristide's safe return and the presence of over 5000 American troops in Haiti, a number of refugees assert that paramilitary gunmen and former backers of the military junta continue to occupy several police posts in the countryside, where they terrorize supporters of the Aristide Administration.
250. See Larry Rohter, U.S. Starts the Return of Haitians from Guantanamo, N.Y. TIMES, Jan. 7, 1995, at A3.
251. See Scott McConnell, Welcome to the Clinton Doctrine, N.Y. POST, Oct. 7, 1994, at 23.
252. Id.
253. Although it is likely that the Clinton Administration did not entirely ignore inter-national legal norms, a constellation of factors external to decision-makers and to law often contribute to a particular foreign policy determination. As Professor Henkin stated: [I]t is never possible to say how much law weighed among the forces that restrained action. The evidence is usually not available, and, at bottom, conclusive evidence can not exist, for if indeed one had access to all the records, if the actors told all, one could not be confident that one had reached the springs of official behaviour.
254. Louis Henkin, Comment, in THOMAS EHRLICH, CYPRUS 1958-1967, at 129 (1974).
255. The 1991 Gulf War indicated that the international community is more receptive to military actions sanctioned by the United Nations and involving coalition forces. See infra note 179 and accompanying text. The support for Operation Desert Storm sharply contrasted with the widespread criticism received by the Reagan and Bush Administrations for their interventions in Grenada and Panama. See supra part III.A.1.b. In deciding to lobby at the United Nations, the Clinton Administration may simply have been drawing upon this history lesson.
256. See Kartashkin, supra note 162, at 209 (proposing revision of the U.N. Charter).
257. Martin, supra note 107, at 479.
258. U.N. CHARTER art. 27, ¶ 3. Because China, France, Russia, the United Kingdom, and the United States possess permanent status and veto power on the U.N. Security Council, these states will ultimately determine when to audiorize intervention. Supporters of a U.N. Charter amendment assume that intervention decisions will turn on the severity of human rights abuses in a particular country.
259. See Kartashkin, supra note 162, at 208-09. In reality, alliances and the national interests of the five permanent members will dictate U.N. intervention policy. Such selective application of the intervention power would undermine the goal of encouraging all nations to comply widi international human rights commitments.
260. For a discussion of the potential role of an international criminal court, see James Crawford, Current Developments: The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994);
261. Michael P. Scharf, Getting Serious About an International Criminal Court, 6 PACE INT'L L. REV. 103 (1994).
262. Jonathan Power, The Case For a World Criminal Court, TORONTO STAR, Jan. 8, 1995, at D4;
263. Jonathan Power, A World of Law, Not Men, BALT. SUN, Jan. 6, 1995, at 15A.
264. See supra notes 134-40 and accompanying text. One scholar appropriately noted that the Framers of the U.N. Charter "were agreed that force was not to be used against another state even to achieve democracy, however defined. Over forty years later states are still not agreed as to what democracy means, but they are still agreed that it is not to be achieved by force." Henkin, supra note 134, at 61.
265. "Human rights are indeed violated in every country. In some countries violations are egregious. But the use of force remains itself a most serious-the most serious-violation of human rights." Id.
266. On August 2, 1990, an Iraqi force of over 100,000 troops invaded neighboring Kuwait. After some scattered resistance by the Kuwaitis, the Emir of Kuwait fled to Saudi Arabia. The U.N. Security Council promptly condemned the invasion, and ordered that Iraq "withdraw immediately and unconditionally all its forces." S.C. Res. 660, U.N. SCOR, 45th Sess., 2932d mtg., U.N. Doc. S/RES/660 (1990). On August 8, Iraq announced that it was annexing Kuwait and that its decision was irreversible.
267. See Excerpts from Iraq's Statement on Kuwait, N.Y. TIMES, Aug. 9, 1990, at A18.
268. The ensuing months resulted in Security Council Resolutions imposing economic sanctions on Iraq and authorizing the collective use of force to restore the Kuwaiti government. S.C. Res. 661, U.N. SCOR, 45di Sess., 2933d mtg., UN. Doc. S/RES/661 (1990) (imposing economic sanctions on Iraq); S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/678 (1990) (authorizing the use of "all necessary means" to remove Iraqi forces from Kuwait). On January 15,1991, a coalition of allied forces, led by the United States, commenced offensive combat operations ("Operation Desert Storm") which were sustained for six weeks. Address to the Nation Announcing Allied Military Action in the Persian Gulf, 27 WEEKLY COMP. PRES. DOC. 50 (Jan. 16, 1991). On February 27, 1991, President George Bush declared "victory for all the coalition partners." Address to the Nation on the Suspension of Allied Offensive Combat Operations in the Persian Gulf, 27 WEEKLY COMP. PRES. DOC. 224 (Feb. 27,1991). He referred to the formal cease-fire as "a victory for the United Nations, for all mankind, for the rule of law, and for what is right." Id.
269. The allied countries "drew a line in the sand," declaring that "the aggression against Kuwait would not stand." Address to the Nation Announcing Allied Military Action in the Persian Gulf, 27 WEEKLY COMP. PRES. Doc. 224. The key to the coalition's success was its common purpose and common values.
270. Robin Wright, Gulf Crisis Rewrites the Policy-Makers' Guidelines, L.A. TIMES, Mar. 4, 1991, at A1, A10.
271. Bruce Hoffman, a military analyst at RAND Corp., emphasized that "[t]here was broader and better integration than ever before because it was so clearly and unambiguously over aggression." Id. at A10.
272. In discussing the significance of the allied campaign, Richard Norton, a fellow at the International Peace Academy in New York, stated, "The scale of victory is such that when the Security Council speaks again, its words will have some teeth behind it. In terms of building a new world order, that's very significant." Wright, supra note 180, at A10.
273. Martin, supra note 26, at 759.
274. "The work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees." G.A. Res. 428, U.N. GAOR, 5th Sess., Supp. No. 20, at 46, U.N. Doc. A/ 1775 (1950) (emphasis added).
275. Martin, supra note 26, at 755-56.
276. This third solution is proposed by the author.
277. See P.D. Maynard, The Legal Competence of the United Nations High Commissioner for Refugees, 31 INT'L & COMP. L.Q. 415, 416 (1982).
278. The projected 1995 budget for the UNCHR is $1.25 billion. Refugee Digest, supra note 5, at 2.
279. See Edward Epstein, United Nations' Role Coping With Refugee Crisis, S.F. CHRON., Apr. 6, 1992, at A10 (revealing how a budget cut and a sharp increase in the number of refugees has led the UNHCR to rely heavily upon assistance from the states of origin).
280. See also William Dullforce, Refugee Agency in Disarray After Chiefs Resignation, FIN. TIMES (London), Oct. 30, 1989, at 4 (discussing failure of the UNHCR to efficiently allocate decision-making power and budget problems resulting from the elimination of controls on spending);
281. Cindy Shiner, The Superhero of a World at War, THE GUARDIAN, May 16, 1995, at 10 (indicating that the recent effort to cut costs may result in untrained and unskilled workers who will undermine the quality of the agency).
282. The amount of contribution may vary, perhaps based upon a combination of factors such as gross national product and the indirect costs of immigration to the national economy. Under the current structure, the top 10 donors to the UNHCR as of August 3, 1995, are the United States, the United Kingdom, Netherlands, the European Union, Japan, Norway, Denmark, Sweden, Germany, and Switzerland. Refugee Digest, supra note 5, at 2.
283. Because the United States is the wealthiest nation in its region and the most frequendy sought asylum, the agency structure should, from a practical standpoint, provide the United States with the opportunity for ample representation and voting power. Such provisions may be necessary in order to convince the United States to participate in the international agency, given the recent congressional proposals aimed at limiting the use of U.S. funds for U.N. peacekeeping activities. See, e.g., S. Res. 420,104th Cong., 1st Sess. (1995).
284. See supra text accompanying note 79.
285. A more ambitious proposal would include the establishment of a United Nations Court on the Protection of Refugees and Displaced Persons. This Court would allow aggrieved refugees to redress violations of international refugee law.
286. Similar concerns have been voiced by the U.S. Justice and Defense Departments with regard to the establishment of a global criminal court to deal with war crimes, crimes against humanity, and other international problems such as hijacking and drug trafficking.
287. See Time for a Global Criminal Court, N.Y. TIMES, Nov. 21, 1994, at A14.
288. See supra text accompanying notes 71, 102.
289. See discussion supra part LA.
290. This non-binding declaration, which reiterated many of the principles of the 1951 Convention, was unanimously adopted by the U.N. General Assembly in 1967. Declaration on Territorial Asylum, G.A. Res. 2312, U.N. GAOR, 22d Sess., Supp. No. 16, at 81, U.N. Doc. A/6716 (1967). Building upon the spirit of the declaration, the United Nations subsequendy convened a conference to draft a Convention on Territorial Asylum which ended in failure.
291. See Frelick, supra note 90, at 677 & n.12 (1977 conference was "highly politicized, indeed catastrophic").
292. Declaration on Territorial Asylum, supra note 195, art. 2(2).
293. See Al Kamen, Bush Defends Policy on Return of Haitians, WASH. POST, Nov. 21, 1991, at A36.
294. See Panama to Receive 10,000 Haitians, Others Offer Haven, REUTERS, July 5, 1994, available in LEXIS, News Library, Reuwld File;
295. Michael Rezendes, A Policy Lost at Sea, BOSTON GLOBE, July 10, 1994, at 67.
296. Because of the harsh economic conditions in Honduras and reported abuse of refugees by military personnel in that country, nearly all of the Haitians
297. See Frelick, supra note 90, at 684. More recendy, Panama reneged on an agreement to provide haven for up to 10,000 refugees because of its economic inability to absorb such an influx. See Rezendes, supra note 198, at 67.
298. This approach therefore seeks to separate international refugee law from the humanitarian issues involved, and instead examines the apparatus for dealing with refugee crises from a realist point of view, i.e., thinking and acting in terms of the national interest. Humanitarian intervention is essentially a crusade on the part of the intervening nation to impose its moral values upon another sovereign State. It is a foreign policy driven by moral considerations. On the contrary, a regional burden-sharing program will focus upon achievement of the national interest, namely halting the influx of refugees, while respecting the territorial sovereignty of the home country. Although this alternative also fulfills the humanitarian objectives of refugee law, it removes the human rights rhetoric of refugee protection from center stage in the immigration debate. Consequently, the national interest becomes the ultimate standard used to shape refugee policy.
299. This protectionist attitude reflects legitimate national economic and social concerns, and should play a dominant role in guiding foreign policy. For examples of how these concerns have affected refugee law, see discussion supra part LB. See also supra notes 96-105 and accompanying text.
300. NICCOLO MACHIAVELLI, THE PRINCE 61 (Harvey C. Mansfield, Jr. trans., 1985).
301. Id. Thus, the sovereign state, in carrying out foreign relations, is not subject to a rule of ordinary morality. Alexander Hamilton reiterated this concept that the rule of morality is not the same between nations as between individuals: "Whence it follows that an individual may, on numerous occasions, meritoriously indulge the emotions of generosity and benevolence, not only without an eye to, but even at the expense of, his own interest. But a government can rarely, if at all, be justifiable in pursuing a similar course ⋯ .".
302. HANS J. MORGENTHAU, IN DEFENSE OF THE NATIONAL INTEREST 16 (1951) (quoting Alexander Hamilton's April 1793 "Pacifkus" article in the Federalist Papers).
303. For a critique of this view, see Arnold Wolfers, Statesmanship and Moral Choice, in 1 WORLD POLITICS 175 (1949) (arguing that there is a realm for moral judgment in foreign policy, although it involves a different set of normative standards than prevails in domestic affairs).
304. In his televised speech to the American public regarding the impending invasion of Haiti, President Clinton cited the need to "stop the brutal atrocities that threatens thousands of Haitians," and the U.S. responsibility to "promote democracy" in Haiti. President Clinton also referred to the responsibility of the United States "to respond when inhumanity offends our values." 30 WEEKLY COMP. PRES. DOC. 1779.
305. See MORGENTHAU, supra note 203, at 34 ("Universal moral principles, such as justice or equality, are capable of guiding political action only to the extent that they have been given concrete content and have been related to political situations by society.").
306. The contributions of each nation to the refugee agency should not be thought of as a question of moral principle or selfless generosity. Thinking in "moral" terms does not produce an adequate standard for determining the amount of assistance to be given, and is likely to err on the side of too excessive a contribution. Rather, membership in the international organization should be viewed as a means to an end, an instrument which can be used for the pursuit of the national interest. In this way, the organization becomes a type of alliance, with each developed nation sharing a common goal. The amount of aid to be given by a nation should be determined solely in view of the contribution it is likely to make to reaching that country's ideal level of immigration.