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06. U.S. observations on UNCHR Advisory Opinion on Extraterritorial Application of Non-Refoulement Obligations (Dec. 28, 2007)

OBSERVATIONS OF THE UNITED STATES ON THE ADVISORY OPINION
OF THE UN HIGH COMMISSIONER FOR REFUGEES ON THE EXTRATERRITORIAL APPLICATION OF NON-REFOULEMENT OBLIGATIONS UNDER THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND ITS 1967 PROTOCOL

In these observations, the United States addresses the Advisory Opinion on the extraterritorial application of non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, which was issued by the Office of the United Nations High Commissioner for Refugees (hereinafter, “UNHCR”) in January 2007 (hereinafter, “Advisory Opinion” or “Opinion”). See U.N. High Comm’r for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol ¶ 15 (Jan. 26, 2007). The United States disagrees with the two central points of the Advisory Opinion. First, the United States disagrees with UNHCR’s principal argument that the non-refoulement obligation under the 1951 Convention on the Status of Refugees and/or the 1967 Protocol Relating to the Status of Refugees has extraterritorial application. Second, the United States notes that the Advisory Opinion fails to establish many of the propositions it asserts with respect to the secondary topic it addresses, i.e., the nature and scope of customary international law and international treaty law related to non-refoulement, both with respect to international refugee law and international human rights law. Most notably in this regard, the United States does not believe that UNHCR has adduced sufficient evidence to support its conclusion that Article 33 of the Refugee Convention has become a rule of customary international law that would be binding on States that are not parties to the Refugee Convention or the 1967 Protocol.

Given the broad scope and broad-ranging statements contained in the UNHCR Opinion, it would not be possible for these Observations to address all points in the Opinion with which the United States may not agree. This is particularly the case with respect to the Advisory Opinion’s sweeping and largely erroneous assertions regarding international human rights law, an area that falls outside the competence and expertise of UNHCR and that falls under the responsibilities of other organs of the United Nations. To explain more fully its views with respect to certain opinions of the Human Rights Committee regarding the scope of the International Covenant on Civil and Political Rights, the United States is attaching hereto its recently issued Observations to the Human Rights Committee’s General Comment 31.

I. Article 33 of the Refugee Convention Does Not Apply Extraterritorially.

The United States disagrees with UNHCR’s opinion that Article 33 of the Refugee Convention imposes obligations on a Contracting State with respect to aliens who are located outside of its territory. Under Article 31(1) of the Vienna Convention on the Law of Treaties, a provision of a treaty must be interpreted according to the ordinary meaning of the terms employed, in light of their context and in light of the treaty’s object and purpose.[1] The Vienna Convention also addresses subsequent practice in the application of the treaty that establishes the agreement of the parties regarding its interpretation, as well as the preparatory work of the treaty in the form of its travaux preparatoires. Vienna Convention on the Law of Treaties arts. 31-32, May 23, 1969, 1155 U.N.T.S. 331 (hereinafter, “Vienna Convention”). As discussed further below, an examination of Article 33 of the Refugee Convention in accordance with these rules indicates that Article 33 applies only with respect to aliens who are inside a Contracting State’s territory.[2]

  1. Text and Context of Article 33

Article 33 of the Refugee Convention contains no express statement or other affirmative indication that it was intended to impose obligations on a Contracting State outside its own territory. Paragraph 1 of Article 33 provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Convention Relating to the Status of Refugees art. 33.1, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (hereinafter, “Refugee Convention”). The most natural reading of this language is that it expresses a prohibition against removal of a refugee from the Contracting State to a foreign territory in the specified circumstances, irrespective of the manner in which the removal might be accomplished. “Expel” means “to force or drive out.” American Heritage Dictionary 477 (2d ed. 1991) (emphasis added). Similarly, one meaning for the French word “refouler” is “expel (aliens).” Cassell’s French Dictionary 627 (1978). Under this meaning, “return (‘refouler’),” like “expel,” connotes not merely transfer, but instead ejection of an alien from within the territory of the Contracting State.[3]

As for any suggestion that “return (‘refouler’)” must have some other meaning (such as transfer from outside a State’s territory) in order to avoid redundancy in the terms “expel” and “return (‘refouler’),” an examination of the two terms indicates that they are not in fact redundant. “Expulsion” in this context typically connotes “the formal process whereby a lawfully resident alien may be required to leave a state, or be forcibly ejected therefrom,” as opposed to removal of an individual who is not lawfully resident. Guy Goodwin-Gill, The Refugee in International Law 69 (1983). Read in this way, “expel” does not reach all classes of aliens present in a country -- it covers only those cases in which the alien’s presence is lawful. Accordingly, the term following “expel” in Article 33, “return (‘refouler’),” rounds out the prohibition by ensuring that aliens whose presence in the country is unlawful are also covered. There is nothing in the text or context to suggest that the use of both “expel” and “return (‘refouler’)” was meant to encompass individuals within a State’s territory as well as individuals outside of a State’s territory.

Contrary to UNHCR’s position, see Advisory Opinion ¶ 28, paragraph 2 of Article 33 confirms that paragraph 1 of Article 33 applies only to aliens inside the territory of a Contracting State. Paragraph 2 states that the benefit of Article 33 may not be claimed by a refugee who is a danger to the security of “the country in which he is.” This paragraph, the only reference to territory in the Article, contemplates that a refugee is covered only if he is “in” a “country” of refuge. Accordingly, read as a whole, Article 33 applies only to removal by a Contracting State of a refugee who is within the territory of that Contracting State.

The text and structure of the Convention provide compelling support for this interpretation. The premise that the Convention is limited to the territory of the Contracting State is woven throughout the provisions of the Convention. See Refugee Convention arts. 4, 15, 17.1, 18, 19.1, 21, 23, 24, 26, 27, 28, 31.1, 32.1. These other references to the territorial scope are consistent with an overall reading of the instrument that, absent some express provision to the contrary, the Convention applies within the territory of Contracting State. UNHCR reaches a different conclusion regarding these Articles: As support for its extraterritoriality analysis, UNHCR points out that certain provisions include a requirement that the refugee must be within the territory of the Contracting State, which, according to UNHCR, means that because the territorial scope of Article 33.1 is not made explicit as it is in these other Articles, there is no territorial limitation. See Advisory Opinion ¶ 28. This is not a natural reading of a treaty text, nor would it be reasonable to impose on treaty drafters a reading that every provision of a treaty would apply extraterritorially absent an express limitation in its text. Such a reading would be particularly illogical where the only express indicators of the drafters’ intentions all show the intent that the instrument would not apply extraterritorially. UNHCR’s reasoning is flawed because it fails to acknowledge that the provisions that include a requirement that the refugee must be within the territory of the Contracting State demonstrate that the territorial limit of the Convention is evident throughout the Convention. The logical conclusion of the particular Articles that UNHCR cites is not that Article 33.1 does not carry any territorial limits; it is, to the contrary, that in context, Article 33.1, like these other provisions in the Convention, is limited to the territory of the Contracting State.

Moreover, further supporting the contextual understanding of the treaty, Article 40.1, entitled “Territorial Application Clause,” provides that a State may, at the time of signature, ratification, or accession, “declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible.” Refugee Convention art. 40.1 (emphasis added). This provision thus indicates that a Contracting State’s obligations under Article 33 do not automatically extend beyond its metropolitan territory, even to its territories or possessions, much less to the high seas and throughout the entire world, as UNHCR contends.

  1. Travaux Preparatoires of Article 33

Article 32 of the Vienna Convention provides:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Vienna Convention art. 32. Although interpretation of the Refugee Convention under the rules of treaty interpretation set out in Article 31 of the Vienna Convention does not leave the meaning of Article 33 ambiguous or obscure, and the resulting interpretation that Article 33 is limited to individuals within the territory of Contracting States is neither absurd nor unreasonable, the travaux-preparatoires of the Convention, and specifically the official minutes of the Conference of Plenipotentiaries, which negotiated the final language of the Convention and adopted Article 33 in the form in which it was ratified, are helpful in reaffirming that Article 33 has no extraterritorial application.

Specifically, the Swiss delegate expressed the view at one session of the Conference that the word “expel” “related to a refugee who had already been admitted to the territory of a country.” He distinguished this from the word “return,” which related to “refugees who had already entered a country but were not yet resident there.” Conference of Plenipotentiaries, Summary Record of the 16th Meeting, U.N. Doc. A/CONF.2/SR.16 at 6 (July 11, 1951). The representatives of France, Belgium, Germany, Italy, the Netherlands, and Sweden agreed. Id. at 6, 11-12.

At a subsequent session, the Dutch delegate reiterated the Swiss interpretation of “expulsion” and “return (‘refoulement’),” and he stated that based on his intervening conversations with other representatives as well, there appeared to be a “general consensus” in favor of the Swiss interpretation. Id., 35th Meeting, U.N. Doc. A/CONF/2/SR.35, at 21 (July 25, 1951). The Dutch delegate then asked to have the record show that the Conference was in agreement with this interpretation, “[i]n order to dispel any possible ambiguity” and to ensure that “mass migrations across frontiers or . . . attempted mass migrations” are “not covered by article 33.” Id. The President of the Conference noted that there was no objection and ordered that interpretation “placed on record.” Id. The President further suggested that “refouler” be placed in brackets after “return” every place the latter word appeared in the English text, a suggestion that was “adopted unanimously.” Id. at 21-22; see also Goodwin-Gill, The Refugee in International Law 74 (“At the 1951 Conference, no formal objection appears to have been raised to the Swiss interpretation of non-refoulement, limiting its application to those who have already entered state territory.”). Read together, the words “expel” and “return (refouler)” in Article 33.1 can thus only be understood to embody a deliberate decision by the Contracting States to incorporate a territorial limitation into the Convention’s provision on non-refoulement.

UNHCR’s arguments from the negotiating record do not contradict this clear indication that the parties drafting the Convention intended to limit Article 33.1 to aliens in the territory of a Contracting State. First, UNHCR quotes a statement of Professor Louis Henkin, then the U.S. representative to the Ad Hoc Committee on Statelessness and Related Problems, expressing that a refugee must not be turned back to a place where his life or freedom would be threatened regardless of whether the refugee was at the frontier or had already crossed the frontier. See Advisory Opinion ¶ 30 (quoting Statement of Louis Henkin of the United States ¶¶ 54-55, U.N. Doc. E/AC.32/SR.20 (Feb. 1, 1950)). Professor Henkin expressed this sentiment at the Ad Hoc Committee on Statelessness, a body which prepared the first draft of the Convention. His sentiment was not adopted by the Committee (nor was it raised by the U.S. delegate at the later Conference of Plenipotentiaries).

Indeed, the Committee on Statelessness contemporaneously adopted language that intended to restrict Article 33 to aliens within the territory of a Contracting State. A study published by the United Nations in 1949 as a prelude to the Convention had used the term “expulsion” to mean “the juridical decision taken by the judicial or administrative authorities whereby an individual is ordered to leave the territory of the country.” U.N. Dep’t of Social Affairs, A Study of Statelessness 60, U.N. Doc. E/1112, (Feb. 1, 1949). The study used the term “reconduction,” which it regarded as the equivalent of “refoulement,” to mean “the mere physical act of ejecting from the national territory a person who has gained entry or is residing therein irregularly.” The study explicitly opined that “reconduction” did not “signify the act of preventing a foreigner who has presented himself at the frontier from entering the national territory.” Id.at 60 & n.1. The Committee on Statelessness later replaced the term “reconduction” with “return,” which expresses the same sentiment as reconduction -- the mere act of ejection without the accompanying judicial process that is implicit in the term “expulsion.” The interpretation of these terms by the UN study thus confirms that Article 33 originated in an intention only to bar removal of individuals from within the Contracting State’s territory, lending further support to the interpretation of Article 33.1 as a unitary prohibition against a Contracting State’s ejection of a refugee from its territory. Professor Henkin’s vision thus did not advance beyond his proposal at the initial Committee.

UNHCR’s analysis is similarly incorrect in its suggestion that, by adopting the particular language that it did, the Conference of Plenipotentiaries must have meant to approve only the Dutch delegate’s understanding that a Contracting State would have no obligation to accept a mass migration of refugees across its borders, but not the specific meaning he attached to the terms in the text of Article 33.1 dictating that Article 33.1 related only to refugees who had already entered the territory of the Contracting State. See Advisory Opinion n.57; see also Principle of Non-Refoulement ¶ 28. This argument ignores the rationale of the Dutch delegate’s conclusion -- that there would be no obligation to accept a mass migration because he and the other delegates agreed with the Swiss delegate’s underlying interpretation of both “expel” and “return (‘refouler’)” as applying only to aliens who had already entered the territory of the Contracting State.

UNHCR additionally argues that any interpretation that construes Article 33.1 as not extending to actions taken with respect to aliens outside of a Contracting State’s territory “would be fundamentally inconsistent with the humanitarian object and purpose of the 1951 Convention and its 1967 Protocol.” Advisory Opinion ¶ 29. The Convention and Protocol undoubtedly sought to achieve humanitarian goals, but the texts and negotiating record reflect that the negotiators of the treaty sought to advance such humanitarian goals with respect to people who had entered the territory of a Contracting State. A retrospective belief, even if true, that the negotiators might have more fully advanced humanitarian goals by extending the reach of the treaty more broadly than they did is not a basis for imposing on the treaty a reading supported neither by its text nor by its negotiating history. Similarly, under longstanding international treaty law, the fact that a treaty may be characterized as generally serving a humanitarian purpose cannot support an effort many years after its entry into force to rewrite the treaty by stretching its terms without limit so long as the final result can be described as serving a humanitarian purpose. Because UNHCR’s contemporary vision of the object and purpose of the Convention are fundamentally at odds with its text and negotiating history, it cannot be relied on, without more, to justify UNHCR’s interpretation.

  1. Subsequent State Practice

UNHCR additionally claims that Conclusions of the UNHCR Executive Committee and other refugee and human rights instruments are expressions of “subsequent State practice” that indicate that the non-refoulement obligation in the Convention and Protocol have extraterritorial application. See Advisory Opinion ¶¶ 32-38. UNHCR’s citation to these instruments is misguided. The Vienna Convention on the Law of Treaties provides for interpretation of a treaty by reference to its context, including “(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty” or “(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.” Vienna Convention art. 31.2. In addition, interpretation of a treaty must take into account, together with the context, “(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.” Vienna Conventionart. 31.3. Neither the Conclusions of the Executive Committee nor other human rights and refugee instruments constitute either an “agreement” or actual “practice” or “rules” falling within those categories.

The Conclusions of the Executive Committee are not drafted or agreed to by all parties to the Refugee Convention or the Protocol, do not constitute “agreement” by the parties as to the Convention’s interpretation, do not temporally constitute instruments made by the parties in connection with the conclusion of the treaty, and are not “rules” of international law. The Conclusions of the Executive Committee have no conclusive authority in determining the interpretation of the Convention or the Protocol. Indeed, even UNHCR has acknowledged that the conclusions of the Executive Committee have no legal effect. See Summary Record of the 41st Meeting at 12, U.N. Doc. A/AC.96/SR.431 (1988) (statement of Mr. Arnaout, Dir., Division of Refugee Law and Doctrine, UNHCR). Instead, they are essentially recommendatory statements of policy, which represent shared policy and program guidance. (In fact, at a 1989 meeting of the Executive Committee, the practice of the United States was to the contrary; it stated that Article 33 “pertained only to persons already in the country and not to those who arrived at the frontier or who were traveling with the intention of entering the country but had not yet arrived at their destination.” Summary Record of the 442nd Meeting at 16, U.N. Doc. A/AC.96/SR.442 (1989). No party to the Convention expressed disagreement with this position).

Similarly, the other human rights instruments that UNHCR cites as relevant “State practice” -- including the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa, the 1969 American Convention on Human Rights, the non-binding 1984 Cartagena Declaration on Refugees, and the non-binding 1967 Declaration on Territorial Asylum adopted by the General Assembly -- are not instructive in interpreting this provision of the Refugee Convention. The OAU Convention and the American Convention are not connected to the conclusion of the Refugee Convention or Protocol, were not made in connection with their conclusion, were not accepted by other parties as related to the Convention or Protocol, and were not made between the parties to the Convention or Protocol regarding the interpretation or application of the provisions of the Convention or Protocol. Accordingly, they do not qualify for consideration under Article 31.2 of the Vienna Convention. As to their significance as “relevant rules of international law” under Article 31.3 of the Vienna Convention, the Conventions simply reflect separate obligations that some States -- and not all parties to the Convention or Protocol -- have chosen to undertake in other international instruments. These obligations are distinct from those in the Convention and Protocol and reflect only the obligations of the parties to those instruments. Moreover, the two Declarations to which UNHCR cites are neither “agreements” nor “rules.” The existence of those instruments and their territorial scope -- even assuming they have the meanings ascribed to them in the Opinion -- have no bearing on the interpretation of Article 33. They merely reflect non-legally binding statements of aspiration that some States have chosen to undertake or support in other international instruments.

  1. Relevant Rules of International Law

In addition, UNHCR argues that States are generally obligated “not to return any person over whom they exercise jurisdiction to a risk of irreparable harm,” and as a result, interpreting Article 33 as not having extraterritorial application would be inconsistent with relevant rules of international law. See Advisory Opinion ¶ 38. In support of this proposition, it cites authorities suggesting that provisions of other treaties have extraterritorial reach. Putting aside the fact, described briefly below, that the interpretations of at least some of these instruments may not be correct, even if those factually unsupported assertions were accurate, the fact that parties to other treaties negotiated provisions with a broader scope of territorial application would say nothing about the territorial scope of the Refugee Convention. Nor does the existence of these other instruments, even if interpreted in the manner asserted by UNHCR, suggest that a proper textual reading of the Refugee Convention could reasonably be read to be in violation of some general principle of international law. Indeed, as described in the following discussion, the United States does not agree with the assertion that there exists some broader legally binding rule on this subject.

As support for its assertions that there is a general principle of international law prohibiting refoulement where there is a risk of irreparable harm and that the Refugee Convention should be read to have extraterritorial application, UNHCR cites the statement of the Human Rights Committee in General Comment 31 that “a State party [to the International Covenant on Civil and Political Rights (ICCPR)] must respect and ensure the rights laid down in the [ICCPR] to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” Human Rights Committee, General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant ¶ 10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (April 21, 2004). This interpretation disregards accepted modes of treaty interpretation and, as the United States explains in its Observations on General Comment 31, is inconsistent with the plain text of the ICCPR and at odds with the negotiating history of the Covenant. To explain the reasons why it does not agree with this reading of Article 7 of the ICCPR, the United States is pleased to provide its recently issued Observations of the United States on General Comment 31 of the Human Rights Committee for UNHCR’s information.[4]

In support of its contention that “relevant rules of international law” support extraterritorial application of Article 33 of the Refugee Convention, UNHCR also points to the conclusion of the Committee of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that the non-refoulement obligation in Article 3 of the CAT “applies in any territory under a State party’s jurisdiction.” Advisory Opinion ¶ 38. As explained in detail in its Reports to the Committee Against Torture and Written Responses to Questions of the Committee Against Torture, the United States disagrees with the notion that Article 3 of the CAT applies to individuals who are outside the territory of a State Party. Neither the text of Article 3, its negotiating history, nor the U.S. record of ratification supports a view that Article 3 of the CAT applies to persons outside the territory of the United States.

Finally, UNHCR’s citation to decisions of the European Court of Human Rights and the Inter-American Commission on Human Rights are unpersuasive. See Advisory Opinion ¶ 39. In the absence of even any suggestion in the text of the Convention, its negotiating history, or subsequent practice of States that Article 33 of the Convention prohibits refoulement not only of individuals within the territory of a Contracting State but also of individuals outside a State’s territory, the decisions of these bodies, relating to instruments other than the Refugee Convention, are simply not relevant, much less authoritative or persuasive indicators of the proper interpretation of Article 33.

  1. Conclusion

Although the United States takes the position that Article 33 of the 1951 Refugee Convention applies only with respect to non-refoulement of aliens within the territory of the Contracting State, it has been the longstanding policy of the United States to take actions outside the United States consonant with non-refoulement obligations that apply to individuals within U.S. territory under the Refugee Convention, as well as under the Convention Against Torture. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G., Title XXII, § 2242 (“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subject to torture, regardless of whether the person is physically present in the United States.”). Nonetheless, because UNHCR’s conclusion that as a matter of treaty law the Refugee Convention’s non-refoulement obligation applies outside a State’s territory is at odds with the text and negotiating history of the Convention, the United States considers it crucial to remind UNHCR of its longstanding interpretation of Article 33, memorialize its fundamental disagreement with UNHCR’s interpretation, and explain the clear international law bases for the proposition that Article 33 of the Refugee Convention obligates a State not to “expel or return (‘refouler’) a refugee who is within the territory of the State in any manner whatsoever to the frontiers of territories where his life of freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion,” subject only to the limitations set forth in subsection 2 of that Article.

II. UNHCR Fails to Establish a Non-Refoulement Obligation Under Customary International Law.

The Advisory Opinion contains many statements and assertions with respect to the scope of non-refoulement obligations under both international refugee law and human rights law. These Observations will focus on the Opinion’s principal contentions regarding the status of Refugee Convention Article 33 as a norm of customary international law, but in summary form they will additionally address some of the Opinion’s assertions related to international human rights law.

  1. Non-Refoulement Under Customary International Law

As discussed above, under Article 33 of the 1951 Convention, to which the United States is bound by virtue of its status as a party to the 1967 Protocol Relating to the Status of Refugees, “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of 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.” Refugee Convention art. 33.1; see also Protocol Relating to the Status of Refugees art. 1(1), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. UNHCR argues, however, that a non-refoulement obligation exists apart from the Convention or any other instrument, and that “the prohibition of refoulement of refugees, as enshrined in Article 33 of the 1951 Convention and complemented by non-refoulement obligations under human rights law, . . . constitutes a rule of customary international law” and is therefore binding on all States, including those that are not a party to the 1951 Convention and/or its 1967 Protocol. Advisory Opinion ¶ 15. Although the United States strongly supports and rigorously adheres to the protection against non-refoulement that is contained in the Convention, and encourages other States to do the same, the United States believes that in the analysis leading to its conclusion, UNHCR fails to adduce necessary evidence -- as opposed to making factually unsubstantiated and conclusory assertions -- that would satisfy the standards required to establish that a rule has become customary international law.

As reflected generally in paragraph 14 of the Opinion, a rule becomes a part of customary international law if two elements are established: (1) State practice (i.e., what States actually do) is “both extensive and virtually uniform”; and (2) that State practice is followed under a sense of legal obligation, such that there is a “general recognition that a rule of law or legal obligation is involved” (opinio juris). North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.),1969 I.C.J. 3, 43 (Judgment of Feb. 20); see also Restatement (Third) of Foreign Relations Law of the United States § 102(2) (1986). UNHCR fails to establish either of these two elements.

Paragraph 15 of the Advisory Opinion provides UNHCR’s support for its assertion that a customary international norm of non-refoulement has developed, but it fails to establish either of the two elements required to elevate a rule to the status of customary international law. First, UNHCR references a 1994 paper in which it initially developed its theory: The Principle of Non-Refoulement as a Norm of Customary International Law,Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1954/93 (January 31, 1994) (available at http://www.unhcr.org/home/RSDLEGAL/ 437b6db64.html) (hereinafter, “Principle of Non-Refoulement”). The primary basis for the conclusions of this paper is that UNHCR has interpreted the actions of States that are not parties to the Refugee Convention or the Protocol as indicating acceptance of a rule of non-refoulement. UNHCR describes:

There have . . . been numerous cases in which the High Commissioner has been required to make representations to States which were parties neither to the Convention nor to the Protocol, and it is here that the Office [of the High Commissioner for Refugees] has necessarily had to rely on the principle of non-refoulement irrespective of any treaty obligation. In response to such representations of the High Commissioner, the Governments approached have almost invariably reacted in a manner indicating that they accept the principle of non-refoulement as a guide for their action. They indeed have in numerous instances sought to explain a case of actual or intended refoulement by providing additional clarifications and/or by claiming that the person in question was not to be considered a refugee.

Principle of Non-Refoulement ¶ 5. In the Advisory Opinion, instead of distinguishing between States that are parties to the Convention or the Protocol and those that are not, UNHCR describes its experiences with both categories of States, despite the important difference between the two:

Moreover, exercising its supervisory function, UNHCR has closely followed the practice of Governments in relation to the application of the principle of non-refoulement, both by States Party to the 1951 Convention and/or 1967 Protocol and by States which have not adhered to either instrument. In UNHCR’s experience, States have overwhelmingly indicated that they accept the principle of non-refoulement as binding, as demonstrated, inter alia, in numerous instances where States have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle.

Advisory Opinion ¶ 15 (footnotes omitted). Unfortunately, neither the 1994 paper nor the Advisory Opinion provide the specific and verifiable evidence of actual State practice and opinio juris that is required to establish the existence of a norm of customary international law.

UNHCR’s reasoning is problematic for several reasons. First, in order to establish State practice, UNHCR should identify with specificity particular State practice. Vague references to “numerous” cases in which States acted in some way do not satisfy the burden to establish the practice of States. UNHCR should be able to identify how many and which States are acting in accordance with the articulated rule, and in addition should be able to identify by use of evidence that they are doing so out of any sense of general legal obligation. Instead, UNHCR merely identifies situations in which an unidentified number of unnamed States have, in its opinion, somehow acted “in a matter indicating” acceptance of such a principle “as a guide for their action.”

Further, UNHCR fails to consider that the “manner” in which States have responded to UNHCR’s expressions of concern might indicate some plausible rationale for their acts other than acceptance of a general legal principle of non-refoulement. UNHCR opines that States’ offering of clarifications or claims that the person in question was not a refugee “can reasonably be regarded as an implicit confirmation of [those States’] acceptance” of a principle of non-refoulement. Principle of Non-Refoulement ¶ 5. Perhaps these actions could be interpreted in this way. But they also could reasonably be interpreted in many other ways; that they can be interpreted as acceptance of a principle of non-refoulement does not dictate that they can be interpreted only in that way. For example, UNHCR fails to distinguish in the Advisory Opinion between States that are not a party to the Convention or the Protocol (or some other agreement in which it has taken on a relevant non-refoulement obligation), and States that are a party to one of those instruments. For States that are a party to an instrument containing an explicit prohibition against non-refoulement, the expressions of acceptance of a non-refoulement obligation or justifications that suggest acceptance of a non-refoulement obligation may be nothing more than the State’s awareness that it is bound by the treaty obligation of non-refoulement, rather than considering themselves obligated by some general principle of non-refoulement.[5]

Moreover, as for the activities of States that are not party to the Convention or Protocol, which UNHCR describes in the 1994 paper, in a situation in which a State responds to the High Commissioner’s concerns by pointing out that the person in question was not a refugee, for example, the State could merely be pointing out, regardless of whether the government in question agreed that such a rule existed, that the rule that the High Commissioner claimed to exist would not apply even if it did exist. Thus, the fact that a State responds with a claim that the person in question is not a refugee does not necessarily indicate that the State not party to the Refugee Convention or its Protocol has accepted the existence of a customary rule of non-refoulement. Similarly, the fact that a State provides clarifications in response to the High Commissioner’s concerns could simply be a way of responding to the particular matter at hand rather than taking on the much wider issue of the High Commissioner’s assumption of the existence of a principle of non-refoulement under customary international law. Again, such clarifications might be regarded in a manner indicating acceptance of such a principle, but there are other equally “reasonabl[e]” interpretations.[6] UNHCR fails to provide any specific information -- for example, the precise circumstances of these cases or the language or argumentation these States have proffered -- that would allow reliance on its claims that these States have justified their behavior because they accept the existence of a rule of non-refoulement. See North Sea Continental Shelf, 1969 I.C.J. at 44 (“There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.”).

Further, UNHCR erroneously relies on a statement of the International Court of Justice to support its contention that explanation by a State that does not comply with a particular customary rule can be evidence of the existence of that customary rule. The Court explains, in language quoted by UNHCR:

In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule.

Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27); see also Advisory Opinion ¶ 15. UNHCR only selectively employs the Court’s reasoning, however. The Court states that as a threshold matter “the conduct of States should, in general, be consistent with such rules.” The requirement that State practice is consistent with the rule in question is thus a prerequisite for the applicability of the Court’s subsequent guidance that State actions inconsistent with the rule may be treated as confirmation of the rule. UNHCR ignores this prerequisite, and fails to establish by adducing reasonably specific evidence the threshold matter that States’ conduct is “in general, . . . consistent with” a rule of non-refoulement. Accordingly, UNHCR cannot properly consider as dispositive its unexplained and conclusory experience that States have provided “explanations or justifications of cases of actual or intended refoulement.” Advisory Opinion ¶ 15. Because there is no clear or definitive evidence of consistent State practice against which to evaluate these States’ explanations or justifications of refoulement, we cannot assume that their explanations confirm acceptance of the purported rule. That States attempt to justify their deviation from the purported rule may not be construed as confirmation of such a rule, because there is no evidence showing that States that are not party to the Refugee Convention or Protocol generally act consistently with the purported rule, and thus no evidence supporting the notion that the rule exists in the first place.

Finally, UNHCR describes as “extremely rare” cases in which a government has stated that “it is not willing to react positively to [UNHCR’s] representations on the simple ground that it does not recognize any obligation to act in accordance with the principle of non-refoulement.” Principle of Non-Refoulement ¶ 6. Again, UNHCR provides no specifics on the identities or even the number of countries that have done so or the circumstances of such statements, nor does it identify any factors that suggest whether “extremely rare” expressions of disagreement with a principle of non-refoulement could be consistent with UNHCR’s claim that such a principle forms part of customary international law. UNHCR’s statement that “[g]overnments of States not parties to the Convention or the Protocol have frequently confirmed to UNHCR that they recognize and accept the principle of non-refoulement,” Principle of Non-Refoulement ¶ 6, is similarly vague -- that States have “frequently confirmed” their recognition could mean either that relatively few States confirm their recognition frequently, or that many States have confirmed recognition, or anything in between -- and provides no reliable basis for concluding that widespread State practice in conformity with a principle of non-refoulement exists due to a sense of legal obligation.

The additional information provided in the Advisory Opinion to buttress the conclusions of the 1994 paper also fails to provide support of State practice or opinio juris sufficient to establish a rule of non-refoulement under customary international law. First, the Advisory Opinion notes “inter alia, the practice of non-signatory States hosting large numbers of refugees, often in mass influx situations,” and states in an accompanying footnote, “This is the case, for example, in Bangladesh, India, Pakistan, and Thailand.” Advisory Opinion ¶ 15 and n.32. This fact fails to support UNHCR’s assertion that customary international law includes a rule of non-refoulement. Whether some States that are not parties to the Convention or the Protocol, including the four States that UNHCR names, host refugees, often in mass influx situations, has no bearing on whether State practice is “both extensive and uniform” as to refusal to return individuals to countries where they face persecution. Indeed, UNHCR does not indicate whether Bangladesh, India, Pakistan, and Thailand continue to host refugees in mass influx situations because of a determination that those refugees will face persecution if removed from their territory, or because of some other consideration (e.g., a general policy of concern for people in need). UNHCR’s reference to these States similarly does not illuminate whether those States that do refuse to return individuals to such countries do so out of a legal obligation to some generally recognized rule of law.

Finally, UNHCR supports its conclusion that the prohibition of refoulement of refugees is part of customary international law with a reference to the Declaration adopted at the December 2001 Ministerial Meeting of States Parties to the Convention and/or its Protocol, in which those parties “[a]cknowledg[ed] the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary
international law.” Advisory Opinion ¶ 16 (citing Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol adopted at the Ministerial Meeting of States Parties of 12-13 December 2001, HCR/MMSP/2001/09, January 16, 2002 (available at http://www.unhcr.org/home/RSDLEGAL/3d60f5557.pdf). UNHCR’s reference to the Declaration again conflates the experience and perspective of parties to the Refugee Convention and Protocol with those of non-parties. The fact that parties to the Convention and/or the Protocol would act as if they had a non-refoulement obligation cannot be used as evidence to support State practice sufficient to show a rule of customary international law, as such parties have undertaken an obligation under the international instrument(s) to which they are a party to comply with Article 33. Their statements, including the statement in this Declaration cited by UNHCR, accordingly reflect that treaty obligation, but they do not necessarily indicate anything more than that. The more relevant body of practice consists of the statements and actions of those countries that do not have a treaty obligation, but the Advisory Opinion cites no compelling evidence indicating that such States either follow a rule that they will not refoule people or that they have implemented such a rule out of a sense of general legal obligation.

UNHCR additionally argues that its contention that there is a prohibition against refoulement under customary international law is supported by the incorporation of a principle of non-refoulement in international treaties and by the “reaffirmation” of the principle by the UNHCR Executive Committee. Principle of Non-Refoulement ¶¶ 7-8. The international instruments that UNHCR cites and the conclusions of the Executive Committee may state that a principle of non-refoulement is, for example, “generally accepted by States,” see Executive Committee of the U.N. High Comm’r for Refugees, Conclusion No. 6, ¶ 1, 28th Sess. (1977) (cited in Principle of Non-Refoulement ¶ 39). In one sense, this is certainly true: Some 147 countries in the world are Contracting States to the Refugee Convention, the 1967 Protocol, or both. See U.N. High Comm’r for Refugees, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (available at http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf). But despite the prevalence of States that commit to a non-refoulement obligation because of their treaty obligations, such a statement does not establish extensive and uniform State practice by those who do not have such treaty obligations, much less State practice followed out of a sense of legal obligation. The Conclusions of the Executive Committee that the Advisory Opinion cites are thus similar to the Advisory Opinion in that they provide conclusory statements without any reference to State practice or opinio juris. For example, Conclusion No. 3 “[r]eaffirms the fundamental importance of the observance of the principle of non-refoulement”; Conclusion No. 17 “[r]eaffirmed the fundamental character of the generally recognized principle of non-refoulement”; and Conclusion No. 71 “[c]alls upon States . . . to respect scrupulously the fundamental principle of non-refoulement”. See Executive Committee of the U.N. High Comm’r for Refugees, Conclusion No. 3, 28th Sess. (1977); Conclusion No. 17, 31st Sess. (1980); Conclusion No. 71, 44th Sess. (1994). No Conclusion, however, explains the presumption that there is a principle of non-refoulement in the first place. Indeed, Conclusion No. 25 [r]eaffirmed the importance of . . . the principle of non-refoulement which was progressively acquiring the character of a peremptory rule of international law,” but the Executive Committee proffers no evidence to substantiate that conclusion. See Executive Committee of the U.N. High Comm’r for Refugees, Conclusion No. 25, 33rd Sess. (1982).

Moreover, UNHCR fails to mention that the conclusions of the Executive Committee could be read to suggest that State practice on non-refoulement might not be extensive and uniform. Conclusions throughout many years have noted that States were disregarding the purported principle of non-refoulement. See, e.g., U.N. High Comm’r for Refugees, Conclusion No. 11, 29th Sess. (1978) (noting that “the principle of non-refoulement . . . had, in a number of cases, . . . been disregarded”); Conclusion No. 50, 39th Sess. (1988) (noting that the Executive Committee “expressed deep concern that the fundamental prohibitions against expulsion and refoulement are often violated by a number of States”); Conclusion No. 74. 45th Sess. (1994) (expressing concern that “incidents of refoulement” had occurred). That throughout several years incidents of refoulement had occurred, sometimes on numerous occasions, suggests that States might not operate in conformity with a rule of non-refoulement on any extensive or uniform basis, as UNHCR claims, and suggests that States might not consider themselves bound by any general legal principle prohibiting refoulement. Of course, without knowing the facts of these cases, it is impossible to draw any conclusion, and as noted by the Advisory Opinion and discussed above, actions in contravention of a rule do not necessarily indicate non-existence of the rule. Nonetheless, as also discussed above, UNHCR fails to establish the existence of a rule in the first place, and thus there is not evidence of a general principle of non-refoulement to support inference that these cases of non-compliance are evidence of the purported rule.

Finally, “refer[ence] to” a “principle” of non-refoulement in General Assembly resolutions, see Principle of Non-Refoulement ¶ 43, or inclusion of a non-refoulement principle in the Declaration on Territorial Asylum, see Principle of Non-Refoulement ¶ 46, does not establish State practice -- what States actually do as opposed to language upon which they may join consensus at the United Nations -- or opinio juris sufficient to elevate such a principle to a rule of customary international law. Further, the fact that there are regional treaties that include non-refoulement obligations also does not establish that there is norm of customary international law that would apply to non-parties.

As a matter of refugee policy, the United States appreciates UNHCR’s desire to see non-refoulement from persecution in the refugee context applied generally by States whether or not such States are obligated to a rule of non-refoulement as a matter of fulfilling their treaty obligations under the Refugee Convention or its Protocol or another instrument. As UNHCR correctly states, “[t]he principle of non-refoulement constitutes the cornerstone of international refugee protection.” Advisory Opinion ¶ 5. For that reason, the United States strongly encourages all countries as a matter of humanitarian policy to take actions consonant with non-refoulement as set forth in the Refugee Convention (as well as in the Convention Against Torture), and would support UNHCR using its advocacy role to encourage States that are not bound by a treaty obligation on non-refoulement to accede to the 1967 Protocol or apply a rule of non-refoulement nonetheless.

What is advisable and highly desirable as a matter of policy, however, does not necessarily rise to the level of an international legal obligation, nor do assertion and restatement of such a desirable principle make it a rule of customary international law. UNHCR has failed to adduce the evidence necessary to establish that non-refoulement as set forth in Article 33 of the Refugee Convention has satisfied the requirements necessary to have become a norm ofcustomary international law. The conclusory statements upon which UNHCR relies are based on remarkably thin and unverifiable support and conflation of the experiences of parties and non-parties to the Convention and its Protocol. They are inadequate to establish the existence of such a rule.

  1. Non-Refoulement Under International Human Rights Law

These comments will not discuss at length all assertions in the Advisory Opinion relating to the scope of non-refoulement under human rights law. The United States notes generally that there are many statements in the Opinion on this subject that are not analytically substantiated and with which it does not agree. For example, the Advisory Opinion fails to support its assertion that customary international law prohibits refoulement to a risk of torture and “imposes an absolute ban on any form of forcible return to a danger of torture,” much less that these prohibitions are jus cogens norms. Advisory Opinion ¶ 21. As discussed in detail above, State practice and opinio juris must be established in order to support a conclusion that a rule forms part of customary international law. UNHCR fails, however, to adduce any evidence of extensive and virtually uniform State practice or of opinio juris to support its assertion. The Convention Against Torture, of course, contains a prohibition against refoulement, but this obligation applies only to parties to the Convention, and not to non-parties. Moreover, the principle proposed by UNHCR, prohibiting refoulement to a “danger of torture” or to a “risk of torture” (UNHCR alternates between these two different formulations), Advisory Opinion ¶ 21, appears broader than the protection afforded by Article 3 of the Convention Against Torture, which prohibits a State from returning an individual from its territory to a State “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. UNHCR does not explain the origin of its proposed rule or the basis for its scope. Given that UNHCR fails to establish even that any such rule exists, it is apparent that characterizing such a purported rule a part of customary international law, and beyond that as a jus cogens norm, is unsupported as a matter of law.

In addition, the Advisory Opinion fails to support its assertion that there exists an even more expansive rule under customary international law that obligates States “not to send any person to a country where there is a real risk that he or she may be exposed to” “an arbitrary deprivation of life.” Advisory Opinion ¶ 21. It is regrettable that the Advisory Opinion would make such a sweeping conclusion in the absence of analytical support, citing only to a statement of the Human Rights Committee regarding reservations practice regarding a particular treaty as evidence for its conclusion regarding the customary international law status of this purported rule. See Advisory Opinion ¶ 21 and n.49. Moreover, the United States disagrees with the contention of the Advisory Opinion that the International Covenant on Civil and Political Rights (ICCPR) obligates States “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of the Covenant,” a position put forward by the Human Rights Committee in General Comment 31. Advisory Opinion ¶ 19. To explain the reasons why it does not agree with this reading of Articles 6 and 7 of the Covenant without further extending these Observations, the United States is pleased to provide its recently concluded Observations of the United States on General Comment 31 of the Human Rights Committee for UNHCR’s information.[7]

In this respect, even assuming for the sake of argument that one were to agree with the Human Rights Committee’s atextual interpretation of Article 7 of the ICCPR, such an interpretation would not establish that there existed a consistent pattern of State practice or opinio juris necessary to establish that such a principal had become a norm of customary international law.

The Advisory Opinion’s statement that the prohibition of refoulement to a risk of cruel, inhuman or degrading treatment or punishment “is in the process of becoming customary international law, at the very least at regional level” is conclusory and unsubstantiated. Advisory Opinion ¶ 21. Putting aside the fact that debate exists regarding the very existence of regional customary international law,[8] here, as before, the Opinion fails to distinguish between obligations or other commitments that States may assume as parties to particular treaties or other instruments -- in this case obligations and commitments under the European Convention on Human Rights and the European Charter of Fundamental Rights -- and the existence of a consistent pattern of states and opinio juris necessary to establish that a norm has become customary international law for non-parties to such instruments. The Advisory Opinion does not examine, much less establish, “constant and uniform usage, accepted as law,” with regard to of the alleged rule of non-refoulement, the requirement the ICJ has set out to establish regional or local custom.[9] Asylum Case (Colombia v. Peru), 1950 I.C.J. Rep. 266, 277. Instead, the Advisory Opinion cites decisions of the European Court of Human Rights, as well as the European Charter of Fundamental Rights and a Council of Europe decision on the European arrest warrant and surrender procedures between Member States, none of which provide evidence of ”constant and uniform usage, accepted as law.”

Finally, the United States at a broader level questions why UNHCR has chosen to delve into this area of international human rights law and to deal with matters that lie outside of its competence and expertise. UNHCR is mandated “to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems.” UNHCR, Mission Statement (available at http://www.unhcr.org/publ/PUBL/4565a5742.pdf).[10] The United States appreciates and respects the important work of UNHCR on issues within its mandate. The interpretation and breadth of international human rights law, however, fall outside of the work that UNHCR is mandated to do. While human rights violations may result in the creation of refugees, they do not integrally relate to protection of refugees. It is regrettable that UNHCR nevertheless has chosen to opine on these matters in this Advisory Opinion and has done so in such an unenlightening and conclusory fashion. That these matters are significant both in terms of their legal interpretation and their practical application makes UNHCR’s choice to step beyond the bounds of its expertise even more problematic. The United States urges UNHCR to focus its resources and expertise in the future on matters within its competence and mandate.

As a final observation, returning to the central topic of the UNHCR Advisory Opinion -- non-refoulement in Article 33 of the Refugee Convention -- the United States notes that its analysis in this paper has focused on the legal propositions and assertions in the Opinion. While it is essential to clarify these important legal issues, the United States does not wish to leave the impression that it is necessarily opposed to the policy desire of UNHCR to have the protections in Article 33 applied as widely and by as many countries as possible. Indeed, as noted above, the United States as a matter of policy takes into account such protective principles in its actions outside of its territory and strongly encourages non-parties to the Refugee Convention or Protocol to protect refugees within their territory in a manner consistent with Article 33. In advancing these policies, the United States believes it is important for the protection and advancement of the rule of law always to be clear in distinguishing those actions that should be done because they are advisable and appropriate from those actions that must be done because they are obligations under international law. In the view of the United States, the blurring of such lines and questionable assertions regarding the content of rules of international law do not in the long run advance our shared interest in the protection and enforcement of international law.

Attachment: Observations of the United States on General Comment 31 of the Human Rights Committee


[1] While the United States has signed but not ratified the treaty, it considers the VCLT to be the “authoritative guide” to treaty law and practice. See Letter of Submittal from Secretary of State Rodgers to President Nixon Transmitting the Vienna Convention on the Law of Treaties, October 28, 1971, Ex. L., 92d. Cong. 1st Sess. at 1. In particular, Articles 31 through 33 of the Vienna Convention reflect the preeminent codification of customary international law on the interpretation of treaties.
[2] The arguments here are largely drawn from the submissions of the United States to the United States Supreme Court in Sale v. Haitian Centers Council, 509 U.S. 155 (1993). See Brief for the Petitioners at 36-51, Sale, 509 U.S. 155 (1993) (No. 92-344); Reply Brief for the Petitioners at 18-29, Sale, 509 U.S. 155 (1993) (No. 92-344).
[3] The United States Supreme Court adopted this interpretation in Sale: “‘[R]eturn’ means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination . . . . [B]ecause the text of Article 33 cannot reasonably be read to say anything at all about a nation’s actions toward aliens outside its own territory, it does not prohibit such actions.” 509 U.S. at 182-83.
[4] As the United States noted during its July 2006 presentation of its Second and Third Periodic Report on its implementation of the ICCPR before the Human Rights Committee, the States Parties to the ICCPR have not given the Committee the authority to issue legally binding or authoritative interpretations of that treaty. Moreover, the Committee’s interpretation is unsustainable: The text of Article 2(1) of the Covenant states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant . . . .” International Covenant on Civil and Political Rights art. 2(1), Mar. 23, 1976, 999 U.N.T.S. 171. Based on the plain and ordinary meaning of its text, this unambiguous language establishes that States Parties are required to ensure the rights in the Covenant only to individuals who are both within the territory of a State Party and subject to that State Party’s sovereign authority. Without any analysis or reasoning to support its view, the Committee’s interpretation transforms the “and” in Article 2(1) into an “or.” Further explanation and support for this reading of the ICCPR is contained in the U.S. Observations on General Comment 31, attached at Tab 1.
[5] The practice of many parties to the Refugee Convention and/or its Protocol applying the non-refoulement provisions of Article 33 would not establish the two requirements for the creation of a rule of customary international law, as the practice would exist because of an independent treaty obligation to take such action rather than because of a norm existing under customary international law, while the normative basis for such practice would depend not on the existence of a sense of general legal obligation, but on a particular international treaty obligation to take such action.
[6] Non-parties to the Convention and/or Protocol might easily interpret demarches by UNHCR as arguments that they should, as a matter of policy, apply Article 33, even though they are not legally bound to do so. Indeed, the United States as a matter of policy strongly encourages such non-parties to apply the protective standards contained in Article 33, even while recognizing that such non-parties are not required to do so as a matter of international law.
[7] As the United States noted during its July 2006 hearing before the Human Rights Committee, the States Parties to the ICCPR have not given the Committee the authority to issue legally binding or authoritative interpretations of that treaty. Moreover, the Committee’s interpretation of the Covenant is untenable. Unlike Article 3 of the Convention Against Torture, the Covenant does not impose a non-refoulement obligation upon States Parties, and neither Article 6 nor Article 7 of the ICCPR contains any reference to the concept of non-refoulement.
[8] See, e.g.,S. Sinha Prakash, Identifying a Principle of International Law Today, 11 Can. Y.B. Int’l L. 106, 112-116 (1973). Conceding that it is possible to identify different usages and treaty patterns among States of different regions, Prakash argues that because international law operates in the context of one society of States rather than in groupings by region, the international legal system “does not seem to contemplate the creation of its customary rules with reference to any but one society of states.”
[9] Indeed, most scholars hold the view that pursuant to the Asylum Case, the standard of proof required to establish the existence of a regional custom is higher than that required to establish the existence of a general custom. Whereas general customary law only requires proof of general acceptance among States, a State alleging a “special” customary rule must prove that “the party against which the rule is invoked has expressly or implicitly consented to it or recognized it.” See, e.g., Malcolm N. Shaw, International Law 87 (5th ed. 2003). One scholar explains, “While in the case of a general customary rule the process of consensus is at work so that a majority or a substantial minority of interested states can be sufficient to create a new custom, a local custom needs the positive acceptance of both or all parties to the rule.” Nancy Kontou, The Termination and Revision of Treaties in Light of the New Customary International Law 6 (Oxford University Press 1994); see also I. C. MacGibbon, Customary International Law and Acquiescence, 33 Brit. Y.B. Int’l L. 115, 117 (“In the case of a general customary right, that is one which is exercised by the generality of States, the presumption of general consent or acquiescence is more strongly raised by virtue of the fact of general participation in the practice, than would be the case with regard to an exceptional customary right exercised by a single State or by a small group of States.”); Shaw, supra, at 87 (“Such local customs therefore depend upon a particular activity by one state being accepted by the other state (or states) as an expression of a legal obligation or right.”).
[10] Since its creation, UNHCR has been asked to expand its activities to include work on behalf of groups other than refugees, including displaced persons, see Economic and Social Council (ECOSOC) Resolution 1705, 53rd Sess. (27 July 1972) ( calling on UNHCR to extend assistance both to refugees returning then to southern Sudan and “persons displaced within the country”); see also ECOSOC Resolution 1655, 52nd Sess. (1 June 1972); G.A. Res. 2958, ¶ 3, U.N. GAOR, 27th Sess., (Dec. 12, 1973), and stateless persons, see G.A. Res. 3274, U.N. GAOR, 29th Sess. (Dec. 19, 1974).


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