ACCORDING to media reports, 37 Haitians arrived on the shores of Boston Beach, Portland, recently. Eight were said to be children. All reportedly maintained that they were escaping hunger, civil unrest, and economic hardship. There were 24 men and five women.

What is the status of these Haitians? Still, according to media reports, a parish judge has held that the Haitians are illegal migrants and has ordered that they be returned to Haiti. At the same time, the parish judge ordered that the adults (or some of them) should pay a fine or serve time as punishment for their illegal entry, in keeping with Jamaican law.

This approach to the treatment of the Haitians bears further consideration for it raises important questions of law and policy. According to Jamaican law, the Haitians may well be subject to immediate deportation as well as a fine. But the question arises whether Jamaican law is the only applicable system of law to be considered in this case.

International Law

Jamaica, it should be recalled, is a State party to the 1951 Refugees Convention and its 1967 Protocol (the “Refugees Convention”), a well-established set of international law rules that governs the identification and treatment of refugees in foreign countries. Under the convention, a refugee is a person who is outside his or her country and is unwilling or unable to return home, owing to a well-founded fear of persecution on certain grounds. These grounds include persecution for political opinion or owing to membership of a particular social group — but they do not include fear of economic hardship standing on its own.

In the circumstances of Haiti today a fair argument may be mounted that some Haitians have fled their country for fear of political persecution and are therefore to be regarded as refugees, subject to the protection of an international law treaty to which Jamaica is a party.

Right to Remain?

And what is the protection that should be afforded refugees in this situation? The Refugees Convention stipulates that refugees have the right of non-refoulement, meaning that refugees should be allowed to remain in their country of refuge until conditions in the country of origin are safe once again.

But where does this leave us? Jamaican law says expel the Haitians as illegal migrants, while international law says keep them as refugees.? In practice, Jamaica has tended to expel the Haitians, relying mainly on two grounds. First, the Jamaican State maintains that international law is not a part of local law unless it has been passed into local legislation — the Refugees Convention has not been incorporated into Jamaican law and so it is invalid in the country.

CCJ

In the clash between local law and unincorporated treaty law, therefore, the former shall prevail. On this point, the decision of the Jamaican Court of Appeal in The NRCA v DYC Fishing; Seafood and Ting (1999) may be cited as good authority. The matter, though, is not entirely free from legal doubt, for the Caribbean Court of Justice (CCJ) in Boyce and Joseph v R (2006) suggested that an unincorporated treaty may create binding legitimate expectations among the beneficiaries under the treaty. If the CCJ’s approach were to prevail, the Haitians would have the legal right to stay in Jamaica, but CCJ decisions on appellate matters are not binding in Jamaica. The Haitians may be required to leave even though the Refugees Convention suggests otherwise.

Jamaica may also opt to expel the Haitians by claiming that they constitute a threat to national security. The Refugees Convention allows Jamaica to proceed along this line of approach, and Jamaica has traditionally invoked putative Haitian participation in the guns for trade as a basis for highlighting that special risk. But on this point one wonders whether it is reasonable to believe that every Haitian is, by definition, a security threat, especially given the deprived and downtrodden condition of some Haitians seeking refuge in Jamaica.

Rejectionist

Overall, therefore, it is time for the Government of Jamaica to reconsider its instinctively rejectionist stance on Haitians seeking our help. True, there is the risk that we could open the floodgates and invite unwanted health risks at a difficult time in Jamaica. We should seek to avoid these risks.

But, on the other hand, if people come to us for refuge and we are parties to a treaty providing for refuge then we should not simply ignore all our treaty commitments. We should not imprison refuge-seekers as criminals and impose fines that we know they cannot afford. And we should at least assess their applications for refugee status, for we may be saving their lives. If Jamaica is not prepared to do this then we should withdraw from the Refugees Convention.

Finally, the Government of Jamaica needs to explain whether and to what extent it regards the National Policy on Refugees as a guide for the treatment of Haitians in need of assistance. When we seek positions of policy leadership in the Caribbean we must build our stance on our willingness to make some sacrifices for the regional good. And if we are not prepared to do so, we should explain our position to the Jamaican people.

Ambassador Stephen Vasciannie is a professor of international law, The UWI, Mona.