able, and no appeals were taken from the findings that each was unlawfully present.

Chim Ming v. Marks, 505 F.2d 1170 (1974), decided by the U.S. Court of Appeals for the Second Circuit on November 8, 1974, presented the same issue. Appellants were citizens of the People's Republic of China who had left for Hong Kong several years before coming to the United States. Both were seamen, with Hong Kong seamen documents, and were permitted to enter the United States only as nonimmigrant crewmen. Both appellants deserted their ships in the United States and overstayed the 29-day period permitted them. Both were found to be deportable to Hong Kong and neither appealed the finding. The Court held that Article 32 afforded no protection to the appellants even if they were refugees. The Court, in affirming Judge Carter's District Court opinion in the case, 367 F.Supp. 637 (1973), also discussed the applicability of Article 31 of the Convention, as follows:

Denying the applicability of Article 32 in these cases is also supported by Article 31 of the Convention, relating to refugees unlawfully in the country of refuge, which characterizes such refugees as those persons who "enter or are present in their territory without authorization." Under Article 31 it is possible that the status of a refugee who has entered illegally the territory of a contracting state may subsequently be regularized. Conversely, the stay of a refugee who has entered in a regular manner may subsequently become unlawful as here, where appellants were admitted for a limited period only. Thus, the only rational interpretation that can be placed upon the term "lawfully in their territory" in Article 32 is one consistent with the definition of unlawfulness in Article 31 as involving the status of being in a nation "without authorization." Since a nation's immigration laws provide authorization, one unlawfully in the country is in violation of those laws.

We need only add that Judge Carter's interpretation of Article 32 by no means makes the treaty a nullity and without benefit to refugees. There is protection under Subsection 2 of Article 31 insofar as it provides that "contracting states shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country." Under Paragraph 1 of Article 33 of the Convention, moreover, there need be no concern that the United States would return a refugee unlawfully here to a country where the refugee would be persecuted. This savings clause, so to speak, is further supported by the express terms of § 243 (h) of the [Immigration and Nationality] Act, 8 U.S.C. § 1253 (h). Section 213 (h) provides:

The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.

That an alien may be barred from seeking protection under Article 32 by virtue of his being unlawfully in this country does not prevent him from obtaining relief under available provisions of our immigration laws, including not only § 243 (h), but also § 203 (a) (7) of the Act, 8 U.S.C. § 1153 (a) (7), referring to conditional entries. Art. 31 provides:

1. The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The contracting states shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The contracting states shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Diplomatic Asylum

Asylum

On November 29, 1974, Andre M. Surena, U.S. delegate to the Sixth Committee of the U.N. General Assembly, gave an address before the Committee on the subject of diplomatic asylum. He reviewed the nature of diplomatic asylum, warned against the notion that it could properly be considered in accord with general principles of international law, and stated that the Latin American practice "should not be viewed as providing a basis for confidence that the practice could usefully be generalized." The following is the U.N. summary, in relevant part, of his statement:

The principles said to underlie the concept of diplomatic asylum were numerous and had not always been articulated in a consistent manner by all proponents of the concept; nor did such principles, in fundamental regards, comport with universally accepted norms of international law. No discussion of those principles could be undertaken without consideration of the argument that a foreign embassy or legation was an extraterritorial aspect of the sending state. That principle had not received general support in the international community, and instances where the international community had been seized of its consideration pointed to the conclusion that the principle was not accepted. The rejection of the concept of extraterritoriality should not be construed as in any way denying the inviolability of diplomatic premises. That principle was clearly recognized, although such premises were considered to be under the sovereignty of the receiving state. The reason for that construction had been succinctly stated in the 1930 circular instructions to United States diplomatic officers in Latin America, which stated that the purpose of immunity was to enable representatives to fulfill their functions fully and that in other matters they should yield entire respect for the jurisdiction of the territorial government.

From a practical point of view, it should be noted that, owing to the firm observance by states of the inviolability of diplomatic premises, the receiving state could not, as a rule, recover a refugee if the envoy refused to surrender him. It should, however, be recognized that a right to grant asylum could not be deduced from the mere fact that the receiving state had no immediate remedy; it did, however, have the ultimate remedy of declaring the diplomat granting asylum persona non grata or severing diplomatic relations. It followed, then, that no right of asylum could be deduced from the position of diplomatic premises in international law. Ordinary diplomatic immunities alone could not justify claims to a right which had no connection with the central purposes of the diplomatic mission. Indeed, it had been argued, with some cogency, that the exercise of diplomatic asylum not only was not the essential purpose of a diplomatic mission but was inconsistent with such purpose.

However, it was necessary to consider whether there did exist, elsewhere in international law, a basis for such a right. It had been suggested that over the years a number of states had from time to time allowed their diplomatic premises to be used for temporary refuge. The differences between the concept of asylum and the provision of temporary refuge in times of disorder had been elucidated by previous speakers. Even if the two concepts were more similar, the references to practice ignored the requisite mental element-the opinio iuris sive necessitatis. Morgenstern, in discussing "custom and usage" as a possible basis for diplomatic asylum, had stressed the distinction between custom and usage. Whereas customary rules were rules of law and produced legal rights and obligations, usage did not create legal relationships. Morgenstern had noted further that official utterances fully bore out the view that no customary law on the subject of asylum had come into being, that the description of that practice as a "custom" was due to loose phraseology and that there was evidence that the grant of asylum, even when it took place, was not regarded as a right; nor was it considered to be in accord with the general principles of international law.

On the other hand, the practice of diplomatic asylum had been the subject, in whole or in part, of several conventions concluded among Latin American States, namely the 1889 Treaty on International Penal Law, signed at Montevideo, the Treaty on Political Asylum and Refuge, signed in 1939 at Montevideo, which elaborated Title II of the 1889 Treaty, which dealt with asylum, the 1928 Convention on Asylum, signed at Havana, the 1973 Montevideo Convention on Political Asylum, and the 1954 Convention on Diplomatic Asylum, signed at Caracas. The United States Government has had an opportunity to make known its views on that subject as a participant in several of the inter-American fora in which those instruments had been drafted. The representative of his government had pointed out with respect to the 1954 Caracas Convention on Diplomatic Asylum that the United States did not recognize or subscribe to the doctrine of asylum as part of international law and did not, in practice, grant asylum except in a very limited sense, a traditional position which was well understood by the other countries of the hemisphere. Those intra-regional treaties and conventions all contained certain

basic points in common, namely: (1) that diplomatic asylum was not to be granted to common criminals, but to political refugees; (2) that common criminals granted asylum must, on request by the host state, be returned to the local authorities by the legation of refuge; but (3) that refuge should be respected for political refugees; and (4) that on a demand by the host state that a person granted diplomatic asylum depart its national territory, the state of refuge might demand that the host state provide necessary guarantees of safe conduct for the departure. It should also be noted that the Organization of American States had agreed that terrorist acts would be regarded as common crimes. However, there were also certain points found in one or more of the aforementioned instruments that were not common to all of them. Several of those points related to whether the state, or legation, of refuge had the unilateral right to determine the qualifications of a refuge, whether a state had an obligation as well as a right to grant asylum, whether such asylum could only be granted under restrictive circumstances of urgency and only for brief periods of time, and the related question of the precise nature of the safe conduct to be accorded by the receiving state. In his delegation's view, those differences in the Latin American Conventions on diplomatic asylum indicated real difficulties in the exercise of the practice, which, perhaps, had only been overcome in the area of application owing to the common diligence and commitment of the Latin American States to the enhancement of that regional practice. In that regard, he recalled that the International Court of Justice, in the Asylum case, had arrived at conclusions of law which would undoubtedly have resulted in a telling blow to the practice, had it not been for the deep-rooted traditions of the Latin American community. The Court had stated that, in the case of diplomatic asylum, the refugee was within the territory of the state where the offence had been committed and that a decision to grant diplomatic asylum involved a derogation from the sovereignty of that state, since it withdrew the offender from the jurisdiction of the territorial state and constituted an intervention in matters which were exclusively within the competence of that state. Such derogation from territorial sovereignty could not be recognized unless its legal basis was established in each particular case. Moreover, with regard to Colombia's submission in the Asylum case that Colombia as the country granting asylum was "competent to qualify the offence for the purpose of the said asylum," the Court had held that Colombia, as the state granting asylum, was not competent to qualify the offense by a unilateral and definitive decision, binding on Peru, the host state.

Nevertheless, in his delegation's view, the continued existence of the practice and doctrine of diplomatic asylum in Latin America was undoubtedly due to a number of unique circumstances, being the result of the homogeneous nature of the community-which had a common language, common legal systems and a common heritage-and of the immensely sophisticated nature of the society. The system operated in large measure not through treaties alone but by common unarticulated understandings. Accordingly, prac

tice in Latin America should not be viewed as providing a basis for confidence that the practice could usefully be generalized.

His government had long been committed, both domestically and internationally, to the development and enhancement of measures which served to guarantee to people the full enjoyment of their human rights. In that regard, it had noted that the Australian representative, in commencing the current debate, had stressed what his government perceived as the great, humanitarian role that could be performed by the exercise of diplomatic asylum by the general international community. His own delegation had drawn attention to some of the difficulties it saw in any attempt to extend to the general international community, in the form of rules containing rights and duties, the practice of diplomatic asylum which had been developed in Latin America as a regional practice for many years. However, it by no means disputed that that practice had had occasion to perform a real humanitarian role in Latin America and, accordingly, it would not wish to engage in any activity which might have an adverse effect on that regional practice. The warnings of the Latin American delegations expressed during the current debate should be carefully observed.

His delegation believed that, rather than attempting to have the practice of diplomatic asylum adopted by all states, it would be most appropriate for the members of the international community to reflect seriously on those matters of humanitarian concern which gave rise to requests for asylum and to do their utmost to eliminate, within their own borders, any and all deprivations of human rights. His delegation was thankful that the current debate had given it an opportunity to express that view. It was not convinced that an in-depth discussion of diplomatic asylum, with its concomitant danger of positions being frozen, would serve the humanitarian concerns which all shared.

U.N. Doc. A/C.6/SR.1510, Dec. 3, 1974, pp. 7-11. On Dec. 14, 1974, the General Assembly adopted the following resolution (G.A. Res. 3321 (XXIX)) on the question of diplomatic asylum:

The General Assembly,

Conscious of the fact that a number of states have granted diplomatic asylum and that several conventions on this subject have been concluded in Latin America,

Considering that it is desirable to initiate preliminary studies on the humanitarian and other aspects of the quesion of diplomatic asylum,

1. Invites Member States wishing to express their views on the question of diplomatic asylum to communicate those views to the Secretary-General not later than June 30, 1975;

2. Requests the Secretary-General to prepare and circulate to Member States, before the thirtieth session of the General Assembly, a report containing an analysis of the question of diplomatic asylum, taking into account in particular:

(a) The texts of relevant international agreements;

(b) Relevant decisions of tribunals;

(c) The consideration of the question in intergovernmental organizations;