Preventive Action for Refugee Producing Situations

196 Chapter 5
not be simply that we do what the law tells us, but that our actions are well
founded, necessary, morally justifiable, and politically sound. 45 1
It is all very well to pass resolutions that call on oppressive or authoritarian
regimes to change practices that they have established to systematically inflict
harm upon its citizens. The real burden, however, falls on the shoulders of
those who must implement the resolutions - governments, international
organizations, and especially, human rights and relief workers in the field.
Secretaries-General, UN individual officials, and organizations have all, in fact,
taken initiatives in the past to tackle specific situations within the territory of
member states, with or without the consent of the state concerned. They have
been able to do this out of concern that the situation, if left unchecked, would
create or dramatically increase refugee flows. These initiatives, despite the
states' initial argument about national security, were approved ex post facto by
the community of states, through such bodies as the U.N. Security Council, the
General Assembly, ECOSOC, and the Executive Committee of the UN High
Commissioner's Program. 452 To be successful, these initiatives must be based
on vision, good judgment, and courage. Once practical actions have been taken,
overcoming states' objections, an important precedents is established on
subsequent legal decisions can be based, particularly in individual cases.
Moreover, these initiatives and practices can serve as precedents in drafting
national and international codes of law.
Therefore we recommend that alternative preventive action gain acceptance
and overcome states' objections through practice, wherever possible in the
absence of an explicit legal instrument providing the basis for it. In this way, an
important body of precedents can be built up as
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451 In this sense we see the role of the UN not in the narrowly defined, restricted
view, but support that in practice, its freedom for action be widened with the appropriate
means. These means, some of which will be developed below, are
designed not to antagonize governments but to find face-saving devices with international
presence, to provide a link to the outside world, which can mean protection
for potential victims and those, mainly local people, who are trying to
protect the victims directly within their country. By representing an international
conscience the UN and other international workers can make it a matter of selfinterest
for states to make concessions for the sake of their foreign policy image.
452 Examples include "U Thant initiierte spontan, ohne ein ausdrückliches Mandat,
die UNDPRO (United Nations East- Pakistan Relief Operation), nachdem er vergebens
an den Sicherheitsrat appelliert hatte, "to stem the tide of human misery
and potential disaster." See A. Pauer, p. 162; See also UN GA res. 3454 (XXX) 9
Dec. 1975. UNHCR's initiative to assist Vietnamese displaced persons within
their country.
Legal Justification 197
states become accustomed to these types of actions. Aside from relying on the
U.N., the argument of domestic jurisdiction may be further rebutted by judicial
decisions of regional or international courts that a state does accept, thereby
conceding limitations on its internal jurisdiction. 453
For the first time, a regional court recently made a judgment that the
concerned government accepted:
In the first verdict of its kind, the Interamerican Court of Human Rights today found the
Honduran Government guilty in the disappearance of a Honduran citizen in 1981. 454
This court and arm of the Organization of American States "ordered Honduras
to pay damages to the victim's family." 455 The government of Honduras has
accepted this verdict, according to a spokesman for President Jose Azcona
Hoyo, who announced:
Velasquez's family will be compensated by the state because Honduras faithfully complies
with the obligations under international agreements. 456
One of the seven judges, Mr. Buergenthal, an American law professor,
commented on the significance of this decision: The Court's verdicts were
effective "because they cannot easily be written off as propaganda. If the
countries we find in violation receive economic aid from places where value is
placed on preserving human rights, then our verdicts could be of some
significance." 457 Moreover domestic public pressures to make nations conform
to international standards of behavior are growing stronger, which contributes
further to the erosion of the "reserved domain." 458
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453 According to Article 63 of the American Convention on Human Rights "Pact of
San Jose, Costa Rica," Chapter VIII, the Inter-American Court of Human Rights
shall rule that the consequences of the measure that constituted the breach be remedied,
if there has been a violation of a right protected by this Convention.
454 "O.A.S. Tribunal Finds Honduras Guilty in Political Killings, a First", The New
York Times, 30 July 1988.
455 "O.A.S. Tribunal finds Honduras guilty," The New York Times, 30 July 1988.
456 "Honduras agrees to pay family of student," Boston Globe, 31 July 1988.
457 "O.A.S. Tribunal finds Honduras guilty," The New York Times, 30 July 1988.
458 458 M.S. Rajan, The Expanding Jurisdiction of the United Nations, (New York:
Oceana Pubications, New York, 1982), p. 234