Full opinion text
ORDER GRANTING PRELIMINARY IN-JUNCTIVE RELIEF AND SUPPORTING MEMORANDUM OPINION ATKINS, Senior District Judge. THIS CAUSE comes before the court on the application of Haitian Refugee Center, Inc., (“HRC”), individual plaintiffs (“individual plaintiffs”) (collectively “plaintiffs”), and class members for preliminary injunc-tive relief pursuant to Rule 65, Federal Rules of Civil Procedure. The application asks the court to extend a Temporary Restraining Order prohibiting defendants from forcefully repatriating Haitians in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedural safeguards adequate to ensure that Haitians with bona fide claims of political persecution are not forcefully returned to Haiti. By this application, plaintiffs do not seek entry to this country; rather, they seek only the protection of procedures to ensure that they are not forcefully returned to a country where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime. The court determines that plaintiffs are entitled to the requested injunctive relief for the following reasons, as set forth more fully below. First, plaintiffs have standing and have demonstrated a substantial likelihood of prevailing on the merits of two justiciable, judicially enforceable claims: HRC’s right of association and counsel, which arises from the First Amendment to the United States Constitution; and the Haitians plaintiffs’ right of non-refoulement, which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees. Second, plaintiffs have demonstrated a substantial threat that they will suffer irreparable, even fatal, injury if the injunction is not granted. Third, plaintiffs have shown that this threatened injury outweighs the potential harm an injunction would cause defendants. Finally, plaintiffs have shown that the injunction would not be adverse to the public interest. A. BACKGROUND The facts most relevant to the present inquiry can be summarized as follows. In 1981, President Ronald Reagan formally found that the migration of aliens without visas to the United States was “a serious national problem detrimental to the interests of the United States.” Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C. § 1182 note at 993 (1982). Specifically, President Reagan noted that “[a] particularly difficult aspect of the problem [was] the continuing illegal migration by sea of large numbers of undocumented aliens into to the southeastern United States.” Id. Invoking both his constitutional and statutory authority, he decided that “international cooperation to intercept vessels trafficking in illegal migrants [was] a necessary and proper means of insuring the effective enforcement of our [immigration] laws.” Id. To implement this stated policy, on September 29, 1981, President Reagan ordered the Secretary of State to enter into “cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.” Exec.Order No. 12324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C. § 1182 note at 992-93 (1982). The President also ordered the Secretary of Transportation to instruct the Coast Guard to interdict undocumented-alien-carrying vessels of foreign nations with which the United States has a cooperative arrangement authorizing the United States to stop and board such vessels. Id. The Coast Guard was further directed to “return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist.” These actions were to be taken only beyond the territorial waters of the United States. Id. Executive Order 12324 also addressed the unique situation of individuals who might qualify as political refugees, providing that “no person who is a [political] refugee will be returned without his [or her] consent.” See 8 U.S.C. § 1101(a)(42) (defining political refugee as “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of ... political opinion”). The Executive Order further ordered the Attorney General, in consultation with the Secretaries of State and Transportation, to take any steps necessary “to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland.” Exec.Order No. 12324, 46 Fed. Reg. at 48,110. On September 23, 1981, Haiti and the United States entered into a cooperative arrangement to prevent the illegal migration of visaless aliens to the United States. Interdiction Agreement, Sept. 23, 1981, United States-Haiti, T.I.A.S. No. 10241. The agreement provides, in relevant part, that United States authorities may board Haitian flag vessels on the high seas for the purpose of making certain inquiries relating to the condition and destination of the vessel and the status of those on board. If a violation of a United States law or an appropriate Haitian law is discovered, the vessel and its passengers may be returned to Haiti. The government of Haiti also formally agreed that Haitians returned to that country (with the exception of those organizing the illegal departures) would not be prosecuted for illegal departure. Finally, within this arrangement, as in the Executive Order, the potential political refugee was singled out for differential treatment. The agreement states that it is “understood that ... the United States does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status.” Id. To effect the cooperative arrangement with Haiti, officers of the Immigration & Naturalization Service (INS) were assigned to Coast Guard vessels involved in interdiction operations. The INS also issued Guidelines to govern its conduct during interdiction engagements. The relevant portions of those Guidelines provide as follows: INS ROLE AND GUIDELINES FOR INTERDICTION AT SEA The following directives are to be followed by INS employees assigned to Coast Guard vessels interdicting vessels at sea pursuant to Presidential Proclamation 4865, dated September 29, 1981, and Executive Order Number 12324, dated September 29, 1981. GENERAL * Due to the sensitive nature of this assignment, all INS employees will be under the direct supervision of INS Central Office Headquarters, Associate Commissioner, Examinations. * The only function INS officers are responsible for is to ensure that the United States is in compliance with its obligations regarding actions toward refugees, including the necessity of being keenly attuned during any interdiction program to any evidence which may reflect an individual’s well-founded fear of persecution by his or her country of origin for reasons of race, religion, nationality, membership within a particular social group or political opinion. * The duties of INS employees assigned to United States Coast Guard vessels will be limited to matters related to the interview of persons on board with respect to documentation relating to entry to the United States and possible evidence of refugee status. * Except for independent determinations with respect to documentation relating to entry into the United States and possible claims to refugee status, INS officers will be subject to maritime directives and rules made by the Commanding Officer of the United States Coast Guard vessel. * * * * * * BOARDING OF VESSELS * All decisions relating to which vessels will be interdicted and in what manner vessels will be boarded will be made at the discretion of the Commanding Officer of the United States Coast Guard vessel. * INS officers and interpreters will be members of each boarding party. INS employees will not be armed. * All initial announcements to the master, crew, and passengers of a boarded vessel as to the purpose of boarding, separation of crew and passengers, and general procedures (including advice that the boarded vessel may be returned to Haiti) will be made by United States Coast Guard personnel at the time the vessel is first boarded. INS OFFICER RESPONSIBILITIES A.To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter. A log record shall be maintained of each such person’s name, date of birth, nationality, home town, all documents or evidence presented, and the reason for departure. B. A copy of the log prepared by the INS officers shall be provided to the Commanding Officer of the Coast Guard vessel. C. INS officers shall be constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Convention and Protocol. D. If there is any indication of possible qualification for refugee status by a person or persons on board an interdicted vessel, INS officers shall conduct individual interviews regarding such possible qualification. E. Interviews regarding possible refugee status shall be conducted out of the hearing of other persons. F. If necessary, INS officers will consult with Department of State officials, either on board, or via radio communications. G. Individual records shall be made of all interviews regarding possible qualification for refugee status. H. If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged. I. Individual record folders shall be prepared and maintained by INS officers in every case where a person is being sent on to the United States, and such record folder may be used to support such person’s claim in the United States. (The individual folder shall contain a sworn statement by the applicants concerning the claim.) ****** INS Role In and Guidelines For Interdiction at Sea, October 6, 1981 (Attached as Exhibit C to Memorandum in Support of Plaintiff’s Application for a Temporary Restraining Order) [hereafter “Guidelines” or “INS Guidelines”]. In December of 1990, in Haiti’s first fully democratic elections in over 200 years, Jean Bertrand Aristide was elected President. In September of 1991, after President Aris-tide was overthrown by brutal military leaders, thousands of Haitians began to escape by sea in boats, many unseaworthy. As a result, the United States Coast Guard began interdicting an increasing number of vessels carrying fleeing Haitians; to date, at least nineteen (19) such vessels have been intercepted and more than 5000 Haitians have been detained. In addition, apparently in light of the political violence occurring in Haiti, the Coast Guard temporarily discontinued the repatriation of the interdicted Haitians. However, on November 18, 1991, defendants announced they had begun the forced return of the interdicted Haitians. B. PROCEDURAL BACKGROUND The following day, November 19, 1991, HRC filed a Verified Complaint for Declaratory and Injunctive Relief, as well as an Application for Temporary Restraining Order (TRO), against the following defendants in their official capacities: JAMES BAKER, III, Secretary of State; REAR ADMIRAL ROBERT KRAMEK and ADMIRAL KIME, Commandants, United States Coast Guard; GENE McNARY, Commissioner, Immigration and Naturalization Service; THE UNITED STATES DEPARTMENT OF JUSTICE; THE IMMIGRATION AND NATURALIZATION SERVICE; and THE UNITED STATES OF AMERICA. The relief sought by Application for TRO and Verified Complaint is essentially the same, i.e., that the court enjoin defendants from forcefully repatriating Haitians not identified as candidates for asylum until the implementation of procedures providing adequate protection to Haitians pursuing political asylum. The Application for TRO and Verified Complaint, as amended, allege that defendants’ actions violate rights of HRC, the individual Haitian plaintiffs, and members of a class of interdicted Haitians. The rights asserted allegedly arise from the following sources: the first and fifth amendments to the United States Constitution; an Executive Order; guidelines promulgated pursuant to the Executive Order; the Refugee Act of 1980; the Immigration and Nationality Act; the Administrative Procedure Act; and rules of international law, including the protection against forcible return granted political refugees by the United Nations Protocol Relating to the Status of Refugees. Following a nonadversarial hearing on the afternoon of November 19, 1991, The Honorable Donald L. Graham, United States District Judge for the Southern District of Florida, issued a TRO, which provided as follows: Defendants are precluded from continuing to repatriate Haitians currently on board U.S.-flagged vessels and Haitians currently being held on land under United States’ control and at Guantanamo Bay, Cuba until further order, to maintain the status quo. On November 20, 1991, defendants filed two motions challenging entry of this TRO: Motion to Vacate TRO or to Stay Such Order Pending Appeal; and Motion for Emergency Hearing and to Shorten Notice Time Pursuant to Rule 65(b). On November 21, 1991, this court entered an order denying defendants’ motions and granting a Motion to Expedite Discovery filed by plaintiff. The order also set a preliminary injunction hearing on the TRO for November 27, 1991. Defendants took an immediate appeal of the order. In the early evening of November 21, the Eleventh Circuit Court of Appeals stayed the discovery portion of the order. In the afternoon of November 22, the Eleventh Circuit lifted the stay and dismissed defendants’ appeal of this court’s denial of defendants’ motions to vacate or stay and for emergency hearing. On Sunday, November 24, 1991, the parties agreed to an accelerated discovery schedule and to an extension of the TRO to and through Tuesday, December 3, 1991. The court received legal briefing from the parties between Saturday, November 30 and Monday, December 2, 1991. On Monday, December 2, 1991, plaintiff filed motions seeking to amend the complaint. As noted earlier, those motions have been granted. The court heard oral argument on the relevant legal issues the evening of Monday, December 2. Following oral argument, the court asked the parties whether they would consent to extension of the TRO through Thursday, December 5, in order to give the court additional time to consider the weighty legal issues involved. Counsel for defendants refused. C. DISCUSSION A party moving for a preliminary injunction must establish the following four elements: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of suffering irreparable injury in the absence of an injunction; (3) that the threatened injury to the moving party outweighs the potential harm an injunction would cause the opposing party; and (4) that the injunction would not be adverse to the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62 (11th Cir.1989), aff'd, — U.S. —, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). A preliminary injunction is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant carries the burden of establishing the four elements described above. United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983). 1. Likelihood of Success on Merits We first consider whether plaintiffs have shown a substantial likelihood of prevailing on the merits of the underlying claims. This consideration implicates the following questions: whether plaintiffs have legal standing to bring this action; whether the issues posed are justiciable; whether plaintiffs have any judicially enforceable rights; and whether these rights are being violated by defendants’ actions. For the reasons that follow, we find that plaintiffs have demonstrated a substantial likelihood of the following: that they have standing; that their claims are justiciable; that at least two rights are judicially enforceable; and that these rights are being violated by defendants’ actions. a. Standing Article III of the Constitution limits the judicial power of federal courts to the resolution of actual “cases” and “controversies.” U.S. Const. Art. Ill, Sec. 2. In order to satisfy the requirements of article III, litigants must establish standing to challenge the action sought to be litigated in the lawsuit. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). The Supreme Court has recognized that in addition to the constitutional requirements, the concept of standing encompasses certain prudential considerations. Id. (1) Organizational Standing of HRC (a) Constitutional Requirements At a minimum, article III requires a party to “ ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Id. at 472, 102 S.Ct. at 758 (citations omitted). We find a substantial likelihood that the injury alleged by HRC satisfies the constitutional requirements for standing. (i) Injury Plaintiff HRC claims that it has suffered the particularized injury of being denied access to a particular and identifiable group of individuals which it is mandated to serve, and that its members have suffered the denial of their rights to assert particular claims. HRC also alleges that its organizational purpose has been thwarted because it has been unable to effectively provide assistance to the interdicted individuals claiming or desiring to apply for refugee status. Complaint at 14. Additionally, HRC claims that its first amendment right to meet, speak with and solicit its members in Guantanamo and on the Coast Guard cutters has been denied. Amendment to Complaint at 1. HRC’s injury is similar to that alleged in Ukrainian-American Bar Association v. Baker, 893 F.2d 1374 (D.C.Cir.1990). The Ukrainian-American Bar Association [UABA] asserted that the government’s failure to provide them access to Soviet and East Bloc aliens seeking asylum in the United States, which prevented them from counseling such persons regarding their rights, infringed upon their first amendment rights and hampered their pursuit of their political agenda. Id. at 1378. The court found that the UABA’s claim alleged a “demonstrable, particularized injury.” Id. (citing Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975)). Denying the UABA the opportunity to communicate their particular message to a uniquely relevant audience resulted in a “personal and concrete” injury. Id. (citing Kurtz v. Baker, 829 F.2d 1133, 1142 (D.C.Cir.1987)). The United States Supreme Court has also found that the frustration of a plaintiff organization’s efforts to fulfill its purpose through activities such as counseling and referral constituted injury in fact. Havens Realty Corip. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). Similarly, we find a substantial likelihood that denying HRC the opportunity to meet, speak with and solicit its members results in personal and concrete harm to HRC. HRC is injured directly in that its organizational purpose is thwarted by the defendants’ alleged violations. In addition, it is injured indirectly through the adverse effect on its members. See Haitian Refugee Center v. Nelson, 694 F.Supp. 864, 875 (S.D.Fla.), aff'd, 872 F.2d 1555 (11th Cir. 1989), aff'd sub nom. McNary v. Haitian Refugee Center, — U.S. —, 111 S.Ct. 888, 894 n. 8, 112 L.Ed.2d 1005 (1991) (finding organizational standing where HRC suffered direct and indirect injury). Thus, HRC’s claim falls into the category of cases exemplified by NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963), in which the Supreme Court recognized standing based on alleged activities that injure both the association and its members. See 13 Wright, Miller & Cooper, Federal Practice & Procedure, Jurisdiction § 3531.9, at 608 (2d ed. 1984) (discussing NAACP v. Button). In NAACP v. Button, the Court held that a state law prohibiting solicitation of legal business abridged the first amendment right of the NAACP, its members and lawyers to associate for the purpose of furthering civil rights objectives. 371 U.S. at 428-29, 83 S.Ct. at 335. The Court found that NAACP had standing to assert this right on its on behalf and that it had standing to assert the corresponding rights of its members. Id. at 428, 83 S.Ct. at 335. As in Ukrainian-American Bar Association, the denial of access to this particular group of Haitian refugees and HRC’s corresponding inability to fulfill its organizational mandate distinguish its injury from an “ ‘abstract social interest’ that is insufficient to confer standing.” 893 F.2d at 1378 (citation omitted). Contrary to the defendants’ contention, the injury alleged by HRC differs from the abstract allegations in Haitian Refugee Center v. Gracey, where the appellants did not assert that they knew or knew of any of the interdicted Haitians with whom they wished to associate. 809 F.2d 794, 800 (D.C.Cir.1987). In this case, there is an identifiable group of Haitian refugees with whom HRC is unable to communicate or associate due to the government’s alleged violations of international and domestic law. Also, in contrast to Gracey, where the court noted that HRC, “rather curiously, [did] not make the claim that the interdiction program violate[d] their first amendment rights,” HRC has made such a claim in this case. Not only has HRC alleged the violation of its first amendment rights, it has made that claim with respect to a specific group of individuals. Consequently, we find “substantial likelihood that HRC has alleged a ‘particularized, demonstrable injury,’ ” Warth v. Seldin, 422 U.S. at 490, 95 S.Ct. at 2197, and furthermore, that HRC has standing on the basis of a legal right which it claims has been violated. See Gracey, 809 F.2d at 800. (ii) Traceability and Redressability In addition to injury in fact, article III requires that the alleged injury fairly can be traced to actions taken pursuant to the interdiction program and that the injury is likely to be redressed by a favorable decision. Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. HRC has established both traceability and redressability. “To the extent that there is a difference, it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the relief requested.” Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984). The defendants argue that HRC raises the same allegations that it raised in Gra-cey, where it failed to establish standing due to a lack of causality. In Gracey, Judge Bork discussed the unlikelihood of a finding of a causal relationship where the causal chain involves a prediction about the independent actions of third parties. 809 F.2d at 805. However, unlike Gracey, this case does not involve a “prediction about independent actions of third parties.” Rather, HRC claims that the defendants’ failure to comply with its domestic and international obligations affects HRC’s own actions. Like the plaintiffs in Ukrainian-American Bar Association, HRC asserts a violation of its own claimed constitutional right to contact and to offer counsel to its members. 893 F.2d at 1379. Judge Ginsburg, in commenting on the organizational plaintiff’s first amendment challenge, stated that the right to speak protected by the first amendment is not, however, a right to be heeded; it is abridged even when speech that we may think would not make a mark in the marketplace of ideas is denied the opportunity to compete for acceptance. We may not, by denying standing under the rubric of causation, narrow the protection afforded by the first amendment. Id. at 1379-80. Based on this reasoning, we conclude there is a substantial likelihood that HRC has a first amendment right which exists regardless of the actions of any third party with whom it seeks to communicate or associate. Also, in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the Supreme Court considered the claim that the government’s refusal to admit Ernest E. Mandel, an advocate of communism, to the United States violated the first amendment rights of the United States citizens who had invited him to speak. Although the issue of standing was not addressed, “it may be assumed that [this allegation] satisfied the article III requirement of a distinct and palpable, not abstract or conjectural or hypothetical, injury.” Gra- cey, 809 F.2d at 800. Similarly, HRC’s allegation that the government’s actions have resulted in the violation of its first amendment rights may be assumed to have satisfied the article III requirement of a “distinct and palpable” injury. The defendants argue that it is speculative to presume that prohibiting the refugees’ return to Haiti and ordering different procedures would lead to an increase in the number of Haitians associating with HRC. A similar argument was made in Gracey, 809 F.2d at 807. Again, however, the allegations in Gracey were different than those raised by HRC in this case. Instead of generally alleging that absent the interdiction program some refugees would have dealt with it, HRC has alleged that the government’s conduct has resulted in a denial of HRC’s access to an identified group of Haitian refugees. As discussed above, there is no speculation about the actions of unidentified refugees in this case. The causal link exists between the government’s action and HRC’s own alleged injury of being denied access to these refugees. Thus, the causal connection is not dependent on the actions of unidentified third parties, but on HRC’s decision to act, which is far from speculative. See Allen v. Wright, 468 U.S. at 759, 104 S.Ct. at 3328. HRC’s inability to reach the identifiable group of Haitians is directly traceable to the government’s alleged wrongful interdiction of those individuals. Furthermore, that injury would be redressed by a decision in HRC’s favor. It does not require speculation to find that the government’s alleged violations result in the frustration of HRC’s ability to reach its members, causing injury by thwarting HRC’s ability to promote the well-being of Haitian refugees attempting to enter the United States. Nor does it take conjecture to find that the relief requested would redress the injury by allowing HRC access to the refugees, (b) Prudential Considerations In addition to the article III requirements, standing doctrine embraces certain prudential considerations: (1) the general prohibition on a litigant’s raising another person’s legal rights; (2) the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches; and (3) the requirement that the plaintiff’s complaint fall within the zone of interests protected by the law invoked. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The government challenges HRC’s standing on the basis of the first and third considerations. At the outset, we note that the United States Supreme. Court has stated that “[wjithin the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing.” Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984). Because HRC has alleged the violation of a first amendment right, we believe that prudential considerations should be given less weight in determining whether HRC has established standing. Nevertheless, we address the government’s challenges on prudential grounds in turn. (i) Third party standing (a) HRC’s assertion of its own rights This is not a case of an organization attempting to achieve standing by relying solely upon the rights of third parties. Nor is it a case of an association bringing suit only on behalf of its members. Rather, HRC has an injury in its own right. As Justice Powell observed in Warth v. Seldin, “in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its associational ties.” 422 U.S. at 511, 95 S.Ct. at 2211. The defendants’ alleged violations clearly have an adverse effect on HRC’s associational ties. Organizational plaintiffs have been accorded standing based on the assertion of their own rights in a number of cases. For example, in the leading case of Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), an organization promoting racially integrated housing established standing by alleging that the defendants’ racial steering practices frustrated its efforts to assist equal access to housing through counseling and other referral services. In Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-38 (D.C.Cir.1986), the court found that the counseling organization had standing based on its own right where it alleged that its operations were inhibited by the Department of Health and Human Services’ implementation of the Age Discrimination in Employment Act of 1967. The Eleventh Circuit addressed the issue in Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir.1989), aff'd sub nom. McNary v. Haitian Refugee Center, Inc., — U.S. —, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and acknowledged that HRC had standing to challenge INS practices in its own right as opposed to on a third party theory. Id. at 1561 n. 10. As in Havens Realty, Action Alliance, and HRC v. Nelson, HRC has demonstrated a substantial likelihood that it has standing based on its own right. (b) Assertion of third party rights We also find a substantial likelihood that HRC has standing to assert the interests of the interdicted Haitians. The Supreme Court has recognized that certain competing concerns may outweigh any prudential rationale against third party standing and therefore that there’s a relaxed prudential standing limitation when such concerns are present. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) (citing Craig v. Boren, 429 U.S. 190, 193-94, 97 S.Ct. 451, 454-55, 50 L.Ed.2d 397 (1976)). Where practical obstacles prevent a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing. In such a situation, the Court considers whether the third party has sufficient injury-in-fact to satisfy the Art. Ill case- or-controversy requirement, and whether, as a prudential matter, the third party can reasonably be expected to properly frame the issues and present them with the necessary adversarial zeal. Id. HRC has demonstrated a substantial likelihood of the existence of all of the requirements for jus tertii standing. First, there are a number of practical obstacles that prevent the Haitian refugees’ assertion of their rights. Second, HRC has alleged sufficient injury in fact. And third, HRC can reasonably be expected to properly frame the issues and to advocate the interdictees’ interests zealously, as it has in the past. Courts have also found third party standing appropriate when a special relationship exists between the plaintiff and the third party whose rights are allegedly infringed. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 1033-34, 31 L.Ed.2d 349 (1972) (holding that defendant charged with giving away contraceptives could raise rights of those who wanted to use them). See generally, Monoghan, Third Party Standing, 84 Colum.L.Rev. 277 (1984). For example, in Craig v. Boren, the relationship of a beer vendor and a potential customer was sufficient for the vendor to raise the rights of the potential customers to challenge a prohibition of selling beer to minors on the grounds of gender-based discrimination. 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In Barrows v. Jackson, the relationship between a minority and one who acted to protect the rights of the minority was sufficient to confer jus tertii standing. Eisenstadt v. Baird, 405 U.S. at 445, 92 S.Ct. at 1034 (discussing Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). Note that the relationship may be between the litigant and a potential third party. Craig v. Boren, 429 U.S. at 194, 97 S.Ct. at 455. In contrast to the cases discussed above, the Supreme Court refused to allow plaintiff banks to strengthen their own claims by asserting the rights of their depositors in challenging federal recordkeeping and reporting requirements. See California Bankers Assoc. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). The Court held that the requirements did not violate the banks’ rights, stating that “[wjhatever wrong such a result might work on a depositor, it works no injury on his bank.” Id. at 51, 94 S.Ct. at 1512. The Court did note that although under other circumstances the bank might rely on the injury to its depositors, the Court did not need to reach that question because any claim the depositors might have was premature. Id. (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)). California Bankers is distinguishable from the present case for two reasons. First, the wrongs which affect the interdicted Haitians do work injury on the HRC by frustrating its efforts to assist the refugees. Second, any claims the interdictees have based on the alleged violations of the Protocol are not premature. As in Barrows, Eisenstadt, and Craig, there is a special relationship between HRC and the Haitian plaintiffs that is sufficient to confer jus tertii standing. Unlike California Bankers, the alleged wrongs suffered by the Haitian refugees do result in injury to the HRC. Where “the same activity injures both the interests of the organization as such and related interests of its members, it is a natural extension to rule that the organization can assert the rights of its members.” 13 Wright, Miller & Cooper, Federal Practice & Procedure, Jurisdiction § 3531.9, at 608. Therefore, in bringing this suit, HRC may properly rely not only upon its own rights, but may also assert the interests of the interdicted Haitians. In fact, it may be impossible to decide HRC’s claims without considering the interests of the Haitians. See id. at 554. (ii) Zone of interests The defendants also argue that HRC’s interests in counseling and representing the interdicted Haitians are outside the “zone of interests” of the laws cited by HRC, which do not regulate or protect the right of an organization to associate with aliens interdicted on the high seas. The zone of interests test asks whether the interests advanced by the plaintiff are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). HRC’s interests are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” HRC’s interest in having access to the interdicted Haitians is clearly within the zone of interests to be protected by the First Amendment. In re Primus, 436 U.S. 412, 422-24, 98 S.Ct. 1893, 1899-1900, 56 L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 428-29, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 531-32 (S.D.Fla.1980). Also, the legislative history of the Refugee Act of 1980 is replete with references to the interests of voluntary and nonprofit agencies such as HRC in the refugee admission process. For example, the following statement in the House Report highlights the importance of the role that Congress envisioned for agencies like HRC in implementing the Refugee Act: Refugee resettlement in this country has traditionally been carried out by private voluntary resettlement agencies.... The- Congress recognizes that these agencies are vital to successful refugee resettlement. H.R.Rep. No. 608, 96th Cong., 1st Sess. 6 (1979) U.S.Code Cong. & Admin.News 1980, p. 141 [hereinafter “House Report”]. A comment by Representative Holtzman also was indicative of the legislature’s intent to involve the interests of voluntary agencies: If this legislation is enacted, for the first time there will be some predictability to our Government’s response to refugee problems that exist around the world. The Congress, the executive branch, and the voluntary agencies, will as a result be able to engage in long-term planning. Refugee Act of 1979: Hearings on H. 2816 Before the Subcomm. on Immigration, Refugees, and International Law on the Judiciary of the House of Representatives, 96th Cong., 1st Sess. 1 (1979). The legislative history of the United States’ adherence to the United Nations Protocol on the Status of Regulations confirms a contemplation of the interests of voluntary agencies like HRC: The American Council of Voluntary Agencies, embracing 43 agencies and representing all factions and all of the organizations which carry on work on behalf of the refugees and other needy people abroad, and which also serve as a liaison in developing support for their efforts in this country, has unanimously endorsed U.S. accession to the protocol; [They] have petitioned the government on several occasions to take all necessary steps with a view to securing U.S. accession to the protocol.... [On] behalf of the President and the Secretary of State, I would like to reiterate their earnest hope. S.Exec.Rep. No. 14, 90th Cong., 2d Sess. Appendix at 5 (1968) (testimony of Mr. Lawrence A. Dawson, Acting Deputy Director, Office of Refugee and Migration Affairs, Dept, of State). The explicit references to the importance of the voluntary agencies, their interests and their concerns, including their role in formulating the Refugee Act, appear throughout the legislative history in both the House and the Senate. See House Report and S.Rep. No. 256, 96th Cong., 1st Sess. 7-8 (1979), U.S.Code Cong. & Admin.News 1980, p. 141. Based on the legislative history, we are convinced there is a substantial likelihood that, in addition to falling within the zone of interests of the First Amendment, HRC’s interests fall within the zone of interests of the provisions at issue in this case. Finally, the Supreme Court has recently held that the zone of interest test “is not meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Securities Industry Association, 479 U.S. 388, 399-400, 107 S.Ct, 750, 757, 93 L.Ed.2d 757 (1987). The Court further stated that the zone of interests test “denies the right of review if the plaintiffs’ interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit suit.” Id. at 399, 107 S.Ct. at 757. As discussed above, HRC’s interests are far from marginally related or inconsistent with the laws in question. (2) Standing of Individual Plaintiffs Plaintiffs contend that the interdiction program violates Article 33 of the United Nations Protocol Relating to the Status of Refugees. Because we find, as discussed below, that there is a substantial likelihood that the United States has violated international law, we also find that the individual plaintiffs have standing. The individuals have satisfied the constitutional requirements of standing. They have demonstrated that they personally have suffered some actual or threatened injury as a result of the defendants’ alleged wrongful conduct. Valley Forge, 454 U.S. at 471, 102 S.Ct. at 757. The injury alleged is the wrongful forced return of these individuals, without the opportunity to meaningfully assert their claims for asylum, to a country where they may face persecution, detention or death. The injury “ ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Id. at 472, 102 S.Ct. at 758 (citations omitted). In addition, the individual plaintiffs’ claims present no prudential concerns. They bring suit in their own right, not on behalf of third parties. Moreover, the individual plaintiffs are clearly within the zone of interests protected by the Protocol. b. Justiciability Having found a substantial likelihood of standing, we consider the difficult question of whether judicial review of HRC’s claims is barred by the “murky and unsettled” political question doctrine. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n. 8 (D.C.Cir.1984) (Bork, J., concurring) (stating “[tjhat the contours of the doctrine are murky and unsettled is shown by the lack of consensus about its meaning among the members of the Supreme Court”). Generally speaking, a cause of action is nonjusticiable if it is “unsuited to judicial inquiry or adjustment” because it presents a “political question” by involving “the relationship between the judiciary and the coordinate branches of the Federal Government” in such a way as to implicate the doctrine of “the separation of powers.” Baker v. Carr, 369 U.S. 186, 196, 210, 82 S.Ct. 691, 699, 706, 7 L.Ed.2d 663 (1962). Defendants argue that the issues raised by plaintiffs present political questions because of the constitutional commitment to the political branches of matters relating to immigration and foreign affairs, because there are no standards by which this court could judge the propriety of the actions being taken pursuant to the President’s directive, and because the basic policy questions are not appropriate for judicial resolution. We recognize that the execution of immigration and foreign affairs matters traditionally has been committed to the executive and legislative branches. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (characterizing power to make immigration determinations as a “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control”). However, the fact that a controversy affects immigration or foreign policy does not of itself render the controversy nonjus-ticiable. See Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706 (stating that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance”); INS v. Chadha, 462 U.S. 919, 942-44, 103 S.Ct. 2764, 2779-80, 77 L.Ed.2d 317 (1983) (declining to dismiss on political question ground challenge to congressional veto of INS order suspending plaintiff’s deportation). Indeed, the Supreme Court has expressly left room for a “narrow standard of [judicial] review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). An analysis of the present case shows a substantial likelihood that the claims presented are not exclusively committed for resolution to the executive branch. Unlike the claim in Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 949, 94 L.Ed. 1255 (1950), for example, plaintiff does not seek to adjudicate the lawfulness of United States military presence abroad. Properly understood, plaintiff's claims are narrowly focused on whether defendants’ execution of the interdiction policy violates rights of plaintiffs arising under international law and the United States Constitution, statutes and guidelines. Resolution of the presented claims will not require this court to move outside of its areas of expertise. On the basis of the record developed, it appears that adjudication of this case will necessitate interpretation of the nature of the rights asserted and adjudication of the defendants’ compliance with those rights. Regarding the government’s conformity with its own rules and the other sources of rights presently asserted, we note that courts have found sufficient standards to assess such conformity. See, e.g., Hotel and Rest. Emp. Union, Local 25 v. Smith, 563 F.Supp. 157, 160 (D.C.D.C.1983). HRC does not challenge a determination left exclusively to executive discretion, but rather procedures utilized by the executive pursuant to its constitutional and statutory authority. Moreover, to the extent that conditions in Haiti are relevant to the adjudication of the claims, we recognize that courts have made findings of fact about conditions in other countries when such determinations are relevant to deciding whether the policies and procedures of the INS violate the statutory or constitutional rights of aliens. See, e.g., Coriolan v. INS, 559 F.2d 993, 1002-03 (5th Cir.1977); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 507-09 (S.D.Fla.1980), aff'd as modified, Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Orantes-Hemandez v. Smith, 541 F.Supp. 351, 358 (C.D.Cal.1982) (taking judicial notice that El Salvador in midst of civil war, that continuing military actions created substantial civilian danger, and that government and guerilla forces responsible for political persecution). In short, it appears substantially likely that there is no “lack of judicially discoverable and manageable standards” to apply. Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706. Finally, we find a substantial likelihood that the prudential considerations set out in Baker v. Carr, supra, do not bar adjudication of the claims. For example, the claims presented do not call upon this court to make or review foreign policy determinations, nor do they challenge the facial validity of the interdiction program, cf. Johnson, 339 U.S. at 789, 70 S.Ct. at 949; Dickson v. Ford, 521 F.2d 234 (5th Cir.1975) (upholding dismissal as nonjusticiable question of taxpayer’s challenge to military and economic assistance to Israel), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 360 (1976). The claims do not challenge the traditional power of Congress to control entry into the United States, seek a declaration of admissibility of any alien or request this court to declare the ultimate eligibility of specific aliens to asylum protection. Instead, the claims call upon the court to decide whether the defendants’ actions in carrying out the program violate U.S. and international law. As the United States Court of Appeals for the District of Columbia Circuit has recognized, The political question doctrine is a tempting refuge from the adjudication of difficult constitutional claims. Its shifting contours and uncertain underpinnings make it susceptible to indiscriminate and overbroad application to claims properly before the federal courts.... Despite confusion over whether a retreat to the political question doctrine is proper in particular cases, it is clear that the doctrine is, at best, a narrow one. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C.Cir.1984). Accordingly, we find that plaintiffs have shown a substantial likelihood that the claims presented are justiciable and not barred by the political question doctrine. c. Judicial Enforceability and Merits of Claims Plaintiffs allege that defendants’ actions in carrying out the interdiction program violate their rights and the rights of their class members. As sources of the alleged rights, plaintiffs advance the following: (1) Article 33 of the United Nations Protocol Relating to the Status of Refugees; (2) the first amendment to the United States Constitution; (3) the fifth amendment to the United States Constitution; (4) Executive Order 12324 and guidelines promulgated pursuant thereto; (5) the Refugee Act of 1980; (6) the Immigration and Nationality Act; and (7) the Administrative Procedures Act. Defendants contend that none of the alleged rights is judicially enforceable. We disagree and find that plaintiffs have demonstrated a substantial likelihood that the first amendment and Article 33 provide rights enforceable by this court. We also find a substantial likelihood that plaintiffs will otherwise prevail on the merits of their claims. (1) U.N. Protocol Relating to Status of Refugees Plaintiffs contend that the interdiction program violates the 1967 United Nations Protocol Relating to the Status of Refugees (Protocol). The United States is a party to the Protocol, which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees. 19 U.S.T. 6223; T.I.A.S. No. 2545. The Protocol defines a refugee as any 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.” Article 33 of the Convention, incorporated into the Protocol, provides as follows: 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 in a particular social group or political opinion. Article 3 of the Convention, also incorporated into the Protocol, provides that the provisions of the Protocol are be applied “to refugees without discrimination as to race, religion or country of origin.” Plaintiffs claim that the defendants’ actions in carrying out the interdiction program violate Article 33 by providing inadequate procedural safeguards to ensure that interdicted Haitians are not returned to Haiti where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime. Defendants deny they have a judicially enforceable non-refoulement obligation to the interdicted Haitians under the Protocol. First, defendants argue that the Protocol is not binding on the United States because the Protocol was not self-executing. Second, defendants argue that even if the Protocol were self-executing and therefore binding on the United States, the non-refoulement protections of Article 33 do not extend to Haitians interdicted in international waters. Although the question is a very close one, we determine that plaintiffs have shown a substantial likelihood that the Protocol was self-executing and that the protections of Article 33 extend to the Haitians interdicted on high seas. (a) Self-Execution of Protocol A treaty can become binding upon a party to the treaty in one of two ways. First, the treaty’s provisions can be implemented by legislation enacted by the party state. Congress has implemented the Protocol, at least in part, through the Refugee Act of 1980. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982). However, as discussed below, the Refugee Act provides no rights to aliens outside of the United States. See 8 U.S.C. § 1158. Accordingly, to the extent the Protocol provides non-refoulement protection to aliens outside the United States, the provision of that protection has not been implemented by United States legislation. The second way a treaty’s provisions can become binding upon a party is by self-execution. Self-executing provisions of a treaty become effective and binding upon the parties immediately upon ratification of the treaty. See Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 311, 77 L.Ed. 641 (1933); United States v. Postal, 589 F.2d 862, 875 (5th Cir.1979). Opinions out of two Eleventh Circuit courts which appear to have considered whether the Protocol was self-executing support the proposition that it was and therefore is binding on the United States. See Nicosia v. Wall, 442 F.2d 1005, 1006 n. 4 (5th Cir.1971) (stating, without recognizing implementing legislation, that “Protocol binds acceding States to apply certain provisions of the 1951 Refugee Convention”) (emphasis added); Fernandez-Roque v. Smith, 539 F.Supp. 925, 935 n. 25 (N.D.Ga.1982) (stating inclination toward view that Protocol is self-executing). Moreover, the United States Supreme Court has recognized that “[t]he Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees.” Immigration and Naturalization Service v. Stevic, 467 U.S. 407, 416, 104 S.Ct. 2489, 2494, 81 L.Ed.2d 321 (1984) (emphasis added). We also recognize that at least two courts have reached the contrary conclusion. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982) (holding that “the Protocol’s provisions were not themselves a source of rights under our law unless and until Congress implemented them by appropriate legislation”); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.C.D.C.1985) (same), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987). Nevertheless, in light of the following analysis, we find a substantial likelihood that the Protocol was self-executing and therefore binding upon the United States. Because the Protocol itself contains no express declaration or denial of its self-executing nature, we must look elsewhere to determine whether or not the Protocol was self-executing, “one of the most confounding [questions] in treaty law,” Postal, 589 F.2d at 876 (noting that “[theoretically a self-executing ... provision should be readily distinguishable” but that “[i]n practice it is difficult”); see Haitian Refugee Center, Inc. v. Gracey, 809 F.2d 794, 840 (D.C.Cir.1987) (Edwards, J., concurring) (describing question as “complex”). To do so, we must consider the parties’ intent and the subject matter, legislative history and subsequent constructions of the treaty. See Postal, 589 F.2d at 876-77. Due to the multilateral nature of the treaty, consideration of the parties’ intent is least helpful. See id. at 878 (noting difficulty of determining common intent regarding self-execution of multilateral treaty). Because some parties, such as Great Britain, never recognize a treaty as self-executing, see id. at 878 n. 24, these parties lack any intent with respect to the direct application of the provision in their countries. Ascertaining intent of the multiple parties to the Protocol is made even more difficult by the fact that many countries “lack the equivalent of the Supremacy Clause.” Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 Va.J.Int’l L. 627, 656 n. 122 (1986). The subject matter of the Protocol supports the proposition that the non-refoulement provision is self-executing and therefore governing in the United States. The provision neither explicitly calls for legislation nor requires positive legislative action, such as the appropriation of money or the imposition of sanctions. The provision mandates neither material assistance nor expenditure of funds; therefore, it should operate of itself, without the aid of any legislation. See Postal, 589 F.2d at 877 (stating relevancy of such considerations); Note, Interdiction: The United States’ Continuing Violation of International Law, 68 B.U.L.Rev. 773, 785 (1988) [hereinafter “Interdiction Note”]. The mandatory nature of the non-refoulement provision of the Protocol also supports a finding that it is self-executing. See Protocol, art. 7, para. 1 (prohibiting parties from excluding or modifying the non-refoulement provision); see also Frolova v. U.S.S.R., 761 F.2d 370, 373 (7th Cir.1985) (stating that one factor bearing on whether treaty is self-executing is “the nature of the obligation imposed by the agreement” and that lack of legal obligation in treaty indicates non-self-executing nature of treaty). The legislative history surrounding the Protocol further supports the conclusion that the non-refoulement provision is self executing. In a letter transmitting the Protocol to the Senate, President Lyndon Johnson expressed a belief that United States law already met the standards of the Protocol, suggesting that further implementation was unnecessary for incorporation of the Protocol into United States law. See 114 Cong.Rec. 27,757 (1968), quoted in Interdiction Note at 781-82. Noting the Protocol’s provision of non-re-foulement, President Johnson wrote that “accession to the Protocol would not impinge adversely upon established practices under existing laws in the United States.” Id.; see also Cong.Research Serv., Library of Cong., 96th Cong., 1st Sess., Review of U.S. Refugee Resettlement Programs and Policies 14 (Comm.Print 1979) (stating that “[i]t should be remembered that during Senate consideration of the United Nations Protocol on Refugees in 1968, the Department of State noted that legislation was not required to implement the Protocol”), reprinted in Interdiction Note at 785-86. Finally, it appears that the subsequent construction of the Protocol generally supports the conclusion that it was self-executing. As noted above, two courts have concluded that the treaty was not self-executing. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.C.D.C.1985), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987). However, several courts in addition to the ones already noted, see Nicosia v. Wall, 442 F.2d 1005, 1006 n. 4 (5th Cir.1971); Femandez-Roque v. Smith, 539 F.Supp'. 925, 935 n. 25 (N.D.Ga.1982), have concluded that the Protocol was self-executing. See Sannon v. United States, 427 F.Supp. 1270, 1274 (S.D.Fla.1977) (holding that Protocol established alien’s right to hearings), vacated and remanded on other grounds, 566 F.2d 104 (5th Cir.1978); Matter of Dunbar, Interim Decision of Board of Immigration Appeals, No. 2192, 310 at 313 (April 17, 1973) (stating in regard to Protocol that “such a treaty, being self-executing, has the force and effect of an act of Congress”). In light of the foregoing, we determine that HRC has demonstrated a substantial likelihood that the Protocol’s protection against refoulement was self-executing. Although the intent of the parties is unclear, the subject matter, legislative history and subsequent construction of the Protocol by United States courts support this determination. Accordingly, the Protocol is binding upon the United States. To hold otherwise might very well ignore the Constitutional mandate that treaties are the “supreme law of the land.” U.S. Const, art. VI, cl. 2. (b) Protocol’s Coverage of Haitians on High Seas Having concluded that the Protocol was self-executing and therefore that the United States is bound by Article 33’s prohibition against refoulement of political refugees, we must determine whether the Haitians interdicted by defendants are entitled to that protection. Article 33 of the Convention, incorporated into the Protocol, provides as follows: No Contracting State shall expel or return (“refouler”) a refugee in any manne