27. The ordinary meaning of “return” includes “to send back” or “to bring, send, or put back to a former or proper place”. 55 The English translations of “refouler” “include words like ‘repulse’, ‘repel’, ‘drive back’.” 56 It is difficult to conceive that these words are limited to refugees who have already entered the territory of a Contracting State. The ordinary meaning of the terms “return” and “refouler” does not support an interpretation which would restrict its scope to conduct within the territory of the State concerned, nor is there any indication that these terms were understood by the drafters of the 1951 Convention to be limited in this way. 57 28. A contextual analysis of Article 33 of the 1951 Convention further supports the view that the scope ratione loci of the non-refoulement provision in Article 33(1) is not limited to a State’s territory. The view has been advanced that Article 33(2) of the 1951 Convention, which permits exceptions to the principle of non-refoulement only with regard to a refugee who constitutes a danger to the security or the community of the country in which he is, implies that the scope of Article 33(1) is also limited to persons within the territory of the host country. 58 However, in UNHCR’s opinion this view is contradicted by the clear wording of Article 33(1) and 33(2), respectively, which address different concerns, 59 as well as the fact that the territorial scope of a number of other provisions of the 1951 Convention is made explicit. 60 Thus, where the drafters of the 1951 Convention intended a particular clause of the 1951 Convention to apply only to 55 56 57 58 59 60 See: Merriam-Webster Online Dictionary, 10th edition, available at: http://www.m-w.com/cgibin/dictionary?book=Dictionary&va=return (last accessed on 15 October 2006). This was also noted by the majority of the United States Supreme Court in Sale, supra footnote 54 (at 181) which, however, went on to state that “‘return’ means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination” (at 182), and that “… because the text of Article 33 cannot reasonably be read to say anything at all about a nation’s actions toward aliens outside its own territory, it does not prohibit such actions.” (at 183). As noted by Blackmun J in his dissenting opinion in Sale, supra footnote 54, “[t]he majority’s puzzling progression (‘refouler’ means repel or drive back; therefore ‘return’ means only exclude at a border; therefore the treaty does not apply) hardly justifies a departure from the path of ordinary meaning. The text of Article 33(1) is clear, and whether the operative term is ‘return’ or ‘refouler’, it prohibits the Government’s actions.” (at 192–193). In support of its finding that Article 33(1) does not apply outside a State’s territory, the majority of the United States Supreme Court in Sale, supra footnote 54, relied on statements by a number of delegates involved in the drafting of the 1951 Convention. However, these statements were expressions of concern related to a possible obligation to grant asylum to large numbers of arrivals in mass influx situations. In UNHCR’s view, these portions of the negotiating history do not warrant the conclusion that the drafters of the 1951 Convention reached consensus about an implicit restriction of the territorial scope of the principle of non-refoulement as provided for in Article 33(1). See also UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, supra footnote 30. See: Sale, supra footnote 54, at 179–180. See also the dissenting opinion of Blackmun J in Sale, supra footnote 54, at 194 (“Far from constituting ‘an absurd anomaly […], the fact that a state is permitted to ‘expel or return’ a small class of refugees found within its territory but may not seize and return refugees who remain outside its frontiers expresses precisely the objectives and concerns of the Convention. Non return is the rule; the sole exception (neither applicable nor invoked here) is that a nation endangered by a refugee’s very presence may ‘expel or return’ him to an unsafe country if it chooses. The tautological observation that only a refugee already in a country can pose a danger to the country ‘in which he is’ proves nothing.”) For example, Articles 2, 4 and 27 require simple presence of a refugee in the host country, while Articles 18, 26 and 32 require that he or she be “lawfully on the territory” of a Contracting State, and Articles 15, 17(1), 19, 21, 23, 24 and 28 apply to refugees who are “lawfully staying” in the country of refuge. 13