By A. J. Nicholson, Contributor 
Nicholson
THREE MONTHS have passed since the events in Haiti leading to the overthrow of the country's democratically elected President, Jean-Bertrand Aristide.
In this period, there has been substantial diplomatic exchange concerning the recognition of the de facto government in Haiti, on the role of external agencies within Haiti, and on the precise circumstances under which former President Aristide lost power, among other things.
The formal position of the Jamaican Government is that Jean-Bertrand Aristide was removed from power by unconstitutional means, and that his removal has set a bad precedent for the Caribbean region.
COLLECTIVE RESOURCES
From the Jamaican perspective, one immediate consequence of the recent events in Haiti has been the arrival of 511 Haitians in this country. Most of the recent arrivants maintain that they are seeking refuge from conditions at home.
As a humanitarian gesture, the Jamaican Government has arranged for the temporary housing of the Haitians, and has been party to other initiatives designed to sustain our visitors in the short-run.
The Jamaican Government has also been influenced, no doubt, by our important, and sometimes misunderstood, historical ties with Haiti, and by our perception of the situation 'on the ground' in Haiti in recent months.
At the same time, however, it should be acknowledged that the arrival of more than 500 persons in a short period of time persons who remain largely under the sponsorship of the State represents a significant call on our collective resources. We are also cognisant of the onset of the hurricane season, and the undesirability of holding the Haitian nationals in quarantine for an extended period.
In the circumstances, the Jamaican Government has, therefore, been obliged to consider two sets of conflicting policy options, namely, (a) to allow the Haitian nationals to remain in Jamaica, and (b) to return them to Haiti.
INTERNATIONAL LAW
In making its decisions on this situation, however, the Jamaican Government has also been obliged to keep in mind rules of International Law and especially the terms of the 1951 Convention on the Status of Refugees (the 'Refugees Convention'), and the 1967 Protocol to the Refugees Convention.
Jamaica became a party to the former on July 30, 1964, and to the latter on October 30, 1980. The Refugees Convention and Protocol, taken together, contain a broad set of rules concerning the identification and treatment of refugees: these rules provide guidance on how Jamaica may proceed with respect to the Haitian asylum-seekers, and supplement the humanitarian and other principles that have guided the Government's actions to date.
In practical terms, the Jamaican Government may not send back to Haiti any asylum-seeker who has been classified as a 'refugee'. This follows from the language of Article 33(1) of the Refugees Convention and Protocol, which stipulates that:
"No 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."
Thus, whether Jamaica may return a particular Haitian to his or her country will turn in part on whether that person falls within the classification 'refugee'. Article 1(A)(2) of the Refugees Convention and Protocol defines a refugee as a person who:
"Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."
INTERVIEWS
In keeping with its desire to act within the dictates of International Law, therefore, the Jamaican Government has activated the Eligibility Committee on refugee applications. The main function of the Eligibility Committee is to interview individual asylum-seekers in order to ascertain whether each individual satisfies the definition of a refugee set out in the Refugees Convention and Protocol.
If the person does, the Government will be legally obliged to allow him or her to remain here; if the person does not, then the Government will have the option of returning him or her to Haiti (subject to an appellate procedure).
Naturally, the process of interviewing which is now in progress will take some time. The members of the Eligibility Committee, drawn from the Ministries of National Security, Foreign Affairs and Foreign Trade, and the Attorney-General's Chambers, have so far visited both Fairy Hill, Portland, and Montpelier, St. James, and, to date, have interviewed 276 persons.
REFUGEE STATUS
Two further matters merit attention. The first is that some of the recent Haitian arrivants have not indicated a desire to be considered for refugee status. If these persons do not make an application, they may be returned to Haiti (without being considered by the Eligibility Committee); this is so because the right to remain here is only available to refugees, and these persons are neither refugees nor applicants for refugee status.
However, as the Government does not wish persons to be expelled 'on a technicality', every effort is being made to ensure that each adult Haitian is aware of his option to apply for refugee status. To date, more than 116 persons have signed a voluntary repatriation form indicating their desire to return home.
Secondly, having regard to the definition of 'refugee' in Article 1(A)(2) of the Refugees Convention and Protocol quoted above, it is important to emphasise that the Eligibility Committee is mandated to enquire whether each asylum-seeker has a "well-founded fear of persecution" on one of the grounds stated in the Convention and Protocol.
Given the precipitating factors that explain the recent round of Haitian arrivals, it is, to be sure, possible that some arrivants fear persecution on the basis of their political opinion, if not on other grounds. With this in mind, the Eligibility Committee has been comprehensive in its assessments, and has taken into account reports on prevailing circumstances in different parts of Haiti.
The Haitian crisis has required careful political and diplomatic judgments among all CARICOM States, and for Jamaica, in particular, it has also required a sensitive and balanced approach to asylum-seekers and other Haitians who have come to us for assistance. We have sought to afford them the kind of comfort and solace that their circumstances warrant, even as we keep in mind competing demand for the resources of the Jamaican State.
A.J. Nicholson Q.C. is the Attorney-General and Minister of Justice.
