Implementation of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees

EC/SCP/54

I. PURPOSE OF THE NOTE

1. The purpose of this note is to outline certain difficulties which have been experienced in the implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and to seek, from Executive Committee members parties to either or both of these instruments, general information about the methods of implementation adopted in their countries, and the successes achieved, or particular obstacles encountered. UNHCR hopes thereby to obtain a more detailed picture of how obligations and responsibilities assumed by States parties, pursuant to these instruments, are, or indeed can be, implemented in full. On the basis of information provided at this session, and to be sought at a later date from all States parties, UNHCR plans to submit a more comprehensive paper on implementation to the forty-first session of the Executive Committee in 1990.

2. In undertaking this exercise, UNHCR remains fully aware that the Convention and Protocol are not the sole sources of international obligations and responsibilities towards refugees. However, the fortieth anniversary of the 1951 Convention will be celebrated in 1991. UNHCR is planning additional promotional activities to commemorate this important occasion and hopes that through dialogue with the Executive Committee, and generally with contracting States, it will by that time have obtained a clearer and more detailed picture of the efficacy and strengths both of the Convention and its Protocol.

II. BACKGROUND

3. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol together are the most comprehensive instruments which have been adopted to date on a universal level to safeguard the fundamental rights of refugees and to regulate their status in countries of asylum. As such they are fundamental to the international regime of refugee protection. They help in ensuring that refugees are granted basic humanitarian treatment. They also facilitate the exercise of the protection function by the United Nations High Commissioner for Refugees. In order to maximize adherence, they are carefully framed to define minimum standards while at the same time not imposing on States any obligations going beyond those which States could reasonably be expected to assume. There are currently 106 States parties to one or both of these instruments.

4. Recognizing that the Convention and Protocol "constitute the cornerstone of international protection" of refugees, the Executive Committee, at its thirty-seventh session in 1986, adopted two important conclusions, Nos. 42 and 43 (XXXVII), dealing with accession to and application of the two instruments. The Committee, in paragraph 3 of Conclusion 43, stressed in particular that:

"in addition to accession, effective application of the principles and provisions of the 1951 Convention and the 1967 Protocol are of the utmost importance."

It also, in paragraph (j) of Conclusion 42,:

"Recommended to States which have not yet done so to consider adopting appropriate legislative and/or administrative measures for the effective implementation of the international refugee instruments, making the necessary distinction between refugees and other aliens."

5. The Office of the United Nations High Commissioner for Refugees has been mandated by the international community with a particular responsibility to ensure effective implementation of the Convention and Protocol within the overall framework of its protection responsibilities. The Office is specifically called upon, pursuant to Paragraph 8(a) of its Statute, inter alia, to supervise the application of international conventions for the protection of refugees.

6. Article 35 of the 1951 Convention requires contracting States to facilitate UNHCR's supervisory duty in relation to the Convention. By virtue of Article 35(2) (b and c), States undertake to provide UNHCR, in the appropriate form, with information and statistical data concerning the implementation of the Convention and laws, regulations and decrees relating to refugees which are in force. Article II of the 1967 Protocol imposes the same obligations on States as Article 35 of the Convention.

7. Pursuant to its responsibilities under Article 35 of the Convention and Article II of the Protocol, and in line with the above-mentioned conclusions of the Executive Committee, UNHCR has requested specific information on an ad hoc basis on particular articles. Moreover, within the framework of annual reporting exercises, particularly in the area of protection, UNHCR Field Offices have sought and continue to receive certain information from States. This information assists the Office generally to monitor compliance with specific Convention and Protocol undertakings. The information is also used in the preparation of segments of UNHCR's annual reports to the Executive Committee and to the General Assembly, through the Economic and Social Council. A strengthening and expansion of co-operation between States and UNHCR in the information area would go even further in facilitating UNHCR's tasks of supervising the application of the Convention and reporting to the competent organs of the United Nations.

III. IMPLEMENTATION OF THE CONVENTION

8. It is clear from information available to UNHCR that in many cases implementation of the Convention is quite satisfactory. This is particularly the case where States parties have adopted specific legislative and/or administrative measures to implement the Convention and have ensured that these laws, regulations or measures are known and understood by the concerned officials. There are instances where such laws or measures go further than the minimum standards of the Convention and Protocol. In many cases, implementation has been much enhanced by the introduction of fair and expeditious procedures for the determination of refugee status, while the judiciary in a number of countries has contributed towards effective implementation through positive application of the provisions of those instruments.

9. On the other hand, there are a number of obstacles which impede the full and proper implementation of the Convention in the territory of many contracting States. These obstacles are, generally speaking, of three kinds, viz, socio-economic, legal and policy or practical. They may be summarized as follows.

(i) Socio-economic considerations

10. An essential purpose of the 1951 Convention is to define the legal status of the refugee in the territory of the contracting Party. It contains comprehensive provisions on the obligations and rights of refugees in areas as diverse as gainful employment, labour legislation, social security, public relief and education. Even under normal circumstances, any contracting State can be expected to face some dome tic opposition in securing the basic needs of a particular group of aliens in relation to such matters, which are also of direct and daily concern to its own nationals.

11. The arrival of large numbers of asylum-seekers and the absorption of some or even all of them as refugees, even on a temporary basis, can create serious strains for host countries. This is particularly the case for poorer communities where the ability of the people and the inclination of the government to shoulder the resulting burden may be severely diminished by economic difficulties, high unemployment, declining living standards, and shortages in housing and land. Such problems are often compounded by continuing man-made disasters, or natural disasters such as drought, as well as the detrimental effects of population influxes on the environment and already scarce natural resources. Inevitably, there are tensions between international obligations and national responsibilities in such circumstances, with the result, in a number of States, that priority is accorded to nationals over all aliens, including refugees, in fields such as employment, education or housing.

12. Serious disparities in levels of economic and social development throughout the world, coupled with greater international or transcontinental mobility, and domestic problems including unemployment and security-related matters have meant likewise that the industrialized countries have become circumspect in controlling entry into their territory. Again, international responsibilities towards refugees and national border-control requirements are not always easy to harmonize.

(ii) Legal impediments

13. Legal problems arise in the first instance where no specific legislative arrangements are made to incorporate the Convention and Protocol into national law. This may be a less significant factor where international instruments are constitutionally self-executing, but may become of greater significance where national legislation is required in order to give international obligations the force of law domestically. This problem of the legal status of the obligations incurred is made more complex where a State has lodged reservations to one or other of the more important provisions of the Convention, such as Articles 31 (non-penalization for illegal entry) or 32 (prohibition of expulsion). In some cases, such reservations have proved more a question of legal form than of actual practice, but problems nevertheless continue to arise, particularly where States have made reservations according to which provisions drafted in mandatory language are considered as only recommendations.

14. A State party to a treaty is under..a general duty to ensure that its domestic laws are in conformity with its international obligations. In certain countries laws are in force which are directly at odds with responsibilities to refugees incurred under the Convention and Protocol. The main areas where restrictions on the rights of refugees have been specifically legislated include freedom of movement (Article 26), moveable and immovable property (Article 13), employment rights (Articles 17-19), identity papers and travel documents (Articles 27 and 28), naturalization (Article 34), and the taking of exceptional measures (Article 8).

15. Even where legislation does not directly contravene specific provisions of the Convention or Protocol, there are, in a number of countries, laws in force which, in their application, may well be inconsistent with the object and purposes of those instruments, as well as, on occasion, basic principles of refugee protection. This problem has arisen, for example, where regulations brought in to check perceived abuses of asylum procedures have worked indiscriminately to also hinder the access of refugees to status determination procedures and the rights and protections established in the Convention and Protocol.

16. The legislative approach adopted by States to regulate refugee rights can, in itself, negatively influence their realization. In some countries, for example, the issue of refugee protection is approached as one of defining not the rights themselves but rather the powers vested in refugee officials. This means that the protection of refugee rights becomes an exercise of powers and discretions by those officials rather than enforcement of specific rights identified and guaranteed by law. In other cases the realization of refugee rights is left to depend ultimately on an exercise of ministerial discretion.

17. In many cases, the judiciary has an important role to play in protecting rights provided for in the Convention and Protocol. Where the courts adopt an unduly restrictive interpretation of the provisions of those instruments, this serves as a serious impediment to their full and proper implementation. In some instances, for example, the scope assigned by the courts to the concept of persecution, or of well founded fear, is arguably too narrow. Evidentiary burdens can also be very heavy and applicants who are unable to produce evidence in support of claims are often refused the benefit of the doubt. It has to be added, however, that the ambiguous phraseology of certain provisions of the Convention itself allows considerable latitude for restrictive interpretation. Hence, in certain national jurisdictions, the courts have differed over the proper interpretation of important provisions of the Convention.

(iii) Impediments in policy and practice

18. States parties to the 1951 Convention and the 1967 Protocol have not only assumed obligations concerning the status and treatment of refugees but have also undertaken to implement these instruments effectively and in good faith. Legislation is but one way in which compliance with international obligations may be assured. Proper fulfilment of this undertaking often becomes a function of political will and government policy, which in turn can be influenced by perceptions of the national interest and problems of a geopolitical nature.

19. In the assessment by certain States it appears that facilitating enjoyment of refugee rights on their territory may act as a "pull" factor. In other States there is the belief that full enjoyment of rights might work against voluntary repatriation which they regard as the best durable solution. Curtailment of rights in certain of these countries is adopted as a deterrence measure to dissuade further arrivals. One effective method to limit rights is to charge for them. In certain countries, it is governmental policy to charge heavily for residence or work permits and/or naturalization applications, to the point where refugees, already financially disadvantaged, are unable, without outside assistance, to meet the costs involved.

20. Practices such as detention of refugees also have, to some extent, a policy base in deterrence. In many countries, such measures are permitted or required by law, although in effect they penalize refugees for their illegal entry, despite the prohibitions in this regard contained in Article 31 of the Convention.

21. In spite of widespread international recognition that the grant of asylum is a peaceful and humanitarian act which should therefore not be the cause of tension among States, preservation of friendly relations with neighbouring countries also often plays a significant role in many decisions taken by States as to what rights refugees should enjoy. Ethnic and cultural division. between nationals and different refugee groups also lead, in certain countries, to discrimination against specific groups of refugees as far as their status in the asylum country is concerned. Naturalization of refugees, for instance, is often a politically sensitive issue and historical animosities, ethnic differences or on-going political conflicts are likely to have an important influence on decisions on naturalization in a number of countries.

22. In many instances there are also serious bureaucratic impediments to full implementation. Bureaucratic structures may be unwieldy and inefficient with legislative or administrative changes proceeding very slowly. Often, the requisite administrative structures are lacking, while there is a dearth of manpower and, more important, of adequate training of officials responsible for interpreting and applying Convention and Protocol obligations. In a number of countries expert advice is not available to assist asylum-seekers to understand their rights and formulate their claims. UNHCR's strengthened training and promotion activities have proved effective, but only partially, to help to overcome such problems.

IV. REQUEST FOR INFORMATION

23. The above is a general survey of the types of problems which impede the full and effective implementation of the 1951 Convention and its 1967 Protocol. They are presented with a view to opening constructive dialogue on how States and UNHCR, individually and jointly, might facilitate and improve implementation of the Convention and Protocol on a global basis.

24. Sub-Committee participants are asked to consider this survey and, consistent with responsibilities on States parties as contained in Article 35, to provide UNHCR, through this session of the Sub-Committee, with comment and additional information on methods of implementing the Convention and/or Protocol in their respective countries and the problems experienced in this regard. It would be particularly useful for Sub-Committee members to focus on legislation or arrangements by which the Convention or Protocol become part of the law of the land; laws, programmes, or policies by which specific rights provided for in the Convention (e.g. in relation to naturalization, education, training or employment of refugees) are realized; and the main obstacles hindering full implementation of Convention or Protocol responsibilities.

25. In addition, it would be valuable to receive from States that have not become party to one or both these instruments, information concerning legislation, administrative measures and policies in force designed to promote and protect refugee rights similar to those recognized in the Convention and the Protocol.

V. CONCLUSION

26. Those countries which have, in a humanitarian spirit, acceded to the 1951 Convention and/or its 1967 Protocol have accepted, within the framework of these instruments, the international protection of refugees as a common trust. The essential character of such a trust is that responsibility for full and effective implementation of those instruments is either shared by everyone or it may well be borne by no one. Last year, in discussing international solidarity and refugee protection, the Sub-Committee turned its attention to the need for co-operation and solidarity with international protection efforts on behalf of refugees in the face of restrictive national policies and practices which threaten the foundations of the common cause upon which the effective implementation of the 1951 Convention and its 1967 Protocol depend. It is now timely, particularly in light of the forthcoming fortieth anniversary of the 1951 Convention, that the Sub-Committee, together with UNHCR, should commence this study of how the Convention and Protocol are implemented. The ultimate goal of this exercise is to strengthen the collective capacity of States to meet the protection needs of all refugees.