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33 Va. J. Int'l L. 503 (1992-1993)
Buffer Zones against Refugees: Dublin, Schengen, and the German Asylum Amendment

handle is hein.journals/vajint33 and id is 513 raw text is: Buffer Zones Against Refugees: Dublin,
Schengen, and the German Asylum
The Haitian refugee blockade has provided an unusually egregious
example of the lengths to which governments may go to prevent refu-
gees from entering their asylum processing systems. The United
States has argued that its international obligation not to return refu-
gees to countries of persecution does not apply outside the borders of
the United States;' it has even argued that this obligation does not
apply at Guantanamo Bay Naval Base, although Guantanamo is terri-
tory subject to complete U.S. jurisdiction.2 The United States would
then be free to use Guantanamo as a buffer zone for the detention of
Haitian refugees outside any legal refugee regime.
Reports indicate that the United States has also been considering
* After this Article was completed, the proposed amendment to the German Constitution
was in fact adopted, becoming effective July 1, 1993. See 1993 BGBI. I 1002. The new article
16a takes the form set forth in the text, except for the final sentence of paragraph 3, whose final
version became It shall be presumed that an alien from such a state will not be persecuted, so
long as he does not present facts that justify the assumption that he will be politically
persecuted despite this presumption.
** Professor of Law, Columbia University School of Law. This Article is a revised version
of a presentation made at a meeting of the American Branch of the International Law
Association in New York City on November 6, 1992. It includes discussion or some later
developments in early 1993. In connection with the introductory passage, the author should
disclose that he has advised counsel for Haitian refugees, and has written amicus briefs in
support of the plaintiffs in the Haitian Centers Council litigation.
1. The Supreme Court accepted this argument with regard to the treaty obligation under
the Protocol Relating to the Status of Refugees in Sale v. Haitian Ctrs. Council, Inc., 113 S.Ct.
2549, 2562-63 (1993); the scope of the obligation under customary international law remains
2. See Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992) (rejecting this
argument), vacated as moot sub nom. Sale v. Haitian Ctrs. Council, Inc., 113 S.Ct. 3028

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