Preventive Action for Refugee Producing Situations

192 Chapter 5
security. 440 The traditional meaning of "national security" is protection of a
state and its population, government, and borders from disruption by outside
forces. Helmut Schmidt, the former Chancellor of the Federal Republic of
Germany, broadened the concept of national security to embrace issues of
monetary stability, worldwide inflation, unemployment, and other ills, which
have lent a new economic dimension to the term. 441
On the one hand, we recognize that security is imperative for the well-being
of the state and its citizens. On the other hand, in practice, we find that at times
portions of the population remain unprotected by the authorities in power
within their own country. In such cases, the state will often resist intervention
by claiming its own security is at stake, even if it does so at the expense of
some of its citizens. Human rights "often lose out to the interest of the states on
spurious grounds such as national security." 442 It is not the nation's security that
is really being threatened, but only its license to abuse its people.
States cling tightly to the issue of national security when it suits them, but
may drop it quickly when other considerations take precedence. How
groundless the "national security defense" can be is illustrated by the example
of what has happened in Vietnam. Subsequent to the 1988 negotiations over the
possible voluntary repatriation of Vietnamese persons not found eligible for
refugee status, the Vietnamese authorities have indicated for the first time since
1975 that they would be prepared to allow those persons to return home, and
that they would soften their previous position regarding these refugees as a
threat to national security. In order to obtain badly needed economic aid and
emerge from its political isola tion, Vietnam has abandoned its application of
article 89 of its 1986 penal code on punishment for persons having left Vietnam
"illegally."
the community from serious danger.' See Goodwin-Gill, The Refugee in International
Law, p. 106.
440 Art 33 (1,2), concerning expulsion of refugees of the 1951 UN Convention Relating
to the Status of Refugees make explicit mention of the restriction on grounds
of national security: "1. The Contracting States shall not expel a refugee lawfully
in their territory save on grounds of national security or public order. 2. The expulsion
of such a refugee shall be only in pursuance of a decision reached in accordance
with due process of law. Except where compelling reasons of national
security require, the refugee shall be allowed to submit evidence [to]... the competent
authorities." See the text of the Convention in HCR/INF/29/Rev.3.
441 Amos A. Jordan and William Taylor, Jr., American National Security: Politics
and Process, 1981, p. 3.
442 Van Boven and Ramcharan, "Problems in the Protection of Human Rights at the
International Level," p. 105.
Legal Justification 193
Just before the October 1988 plebicite the Chilean authorities on September
2, 1988 lifted the ban on nationals to return home, many of whom
had been expelled from or fled the country during the time after the 1973
coup d'etat on grounds of national security. 443
Not only can the doctrine of "national security" be invoked to prevent
outsiders from intervening in a country's human rights abuses, but it can also
be the weapon that the national authorities turn against those supposedly
under their protection. Examples are alarmingly easy to find. Suspecting that
members of the Salvadoran guerrilla movement had infiltrated the refugee
camp Colomoncagua, the Honduran army conducted a military incursion on
August 31, 1985 into the camp for "reasons of national security." 444 Two
refugees were killed, ten detained, and twenty-five injured. In 1978, seven
Vietnamese boat people were found with firearms on board a boat arriving
in Malaysia. They were detained under the Malaysian Internal Security Act
and only after persistent intercessions on the part of UNHCR before the
Malaysian authorities were these refugees given access to due process of
law.
There are no intrinsic reasons that international preventive actions should
be viewed as a risk to national security. The policy proposal detailed in the
previous chapter consists of humanitarian and political actions to enforce
the international accountability of states to international organizations both
for the welfare of their people and for their behavior toward resident aliens.
5.1.2. The doctrine of domestic jurisdiction
States create their own rules governing their population, territory, and traffic
across their borders. 445 In countries from which refugee flows
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443 "Chile allows exiles to return," Boston Globe, 2 September 1988.
444 "Honduras Reported to Raid Refugees," The New York Times, 5 September
1985; "The Killing Catches Up to Refugees in Honduras, The New York
Times, 8 September 1985.
445 "Typische Bereiche innerer Zuständigkeit - Staatsform, Verfassung,
Staatsangehö-rigldet. Wirtschaftsrecht, Zoll, Aus- und Einwanderung - sind
auch weiterhin gewohnheitsrechtlich zu beachten, soweit sie nicht vertraglich
eingeengt oder völlig internationalisiert sind. Die Beziehungen zwischen Staat
und Individuum, dessen Stellung in der nationalen Gesellschaft, sind, wie die
Verfassungsordnung Überhaupt, traditionell typische Bereiche innerer
Zuständigkeit" Helmut Rumpf, Der internationale Schutz der Menschenrechte
und das Interventionsverbot (Baden-Baden: Nomos, 1981), p. 23.