Note on International Protection (Submitted by the High Commissioner)

A/AC.96/567

Introduction

1. The principal developments in regard to international protection up to 31 March 1979 are described in the High Commissioner's report submitted to the General Assembly at its thirty-fourth session through the Economic and Social Council (document E/1979/95). In that report the High Commissioner draws attention to a number of positive developments but also mentions a number of matters giving rise to concern. These relate more particularly to the difficulties encountered by asylum-seekers in finding a country of permanent or even temporary refuge, the return (refoulement) of refugees to countries where they have reason to fear persecution, and the adoption of unjustified and arbitrary measures of expulsion and detention in respect of refugees. A number of more recent developments have once again confirmed the vital importance of international protection and the need for this function to be exercised within the context of international solidarity and co-operation.

Recent developments

2. In one particular area, the difficulties in regard to asylum encountered by refugees leaving their country of origin by sea have increased to a marked extent. A number of States in the area have ceased to observe the principle of the grant of temporary asylum and have taken active measures to prevent boats carrying asylum-seekers from entering their territorial waters. Asylum-seekers who have succeeded in entering the territory have been returned to the high seas and exposed to serious danger, extreme hardship and in many instances loss of life. In the same area, persons seeking asylum at land frontiers have been refused admission, or, if they had already entered the national territory, have as a matter of policy been returned to their country of origin. The exercise of the High Commissioner's protection role - entrusted to him by the international community - has been rendered more difficult by the fact that States in this area have not acceded to the principal international refugee instruments.

3. It is, of course, realized that the granting of even temporary asylum may place a serious burden on States which, due to their geographical situation, are confronted with large-scale and even massive influxes of asylum-seekers. The problems facing countries of first asylum are, however, problems which are recognized as being of concern to the international community, and the principle of "burden-sharing" has received widespread recognition at the universal and also at the regional level. There is, of course, a need for the principle of "burden-sharing" to be given concrete expression in specific refugee situations, and it is one of the High Commissioner's constant preoccupations to ensure that appropriate arrangements are made to relieve the burden of first-asylum countries, by finding resettlement opportunities, providing care and maintenance pending resettlement and, where appropriate, helping to frame local settlement projects. While countries of first asylum may in certain refugee situations understandably consider that such arrangements for "burden-sharing" are inadequate both as regards the speed with which they are made and their actual scope, this cannot justify a disregard of the principle of non-refoulement or the refusal of temporary admission if this would lead to unnecessary hardship. These matters are not negotiable.

4. It is to be noted that in other parts of the world also refugees have, in certain cases, been refused asylum, have been returned to their country of origin in disregard of the principle of non-refoulement, or have been subjected to measures of expulsion in circumstances not justified by article 32 of the 1951 Refugee Convention or to long periods of arbitrary detention.

5. These disquieting developments call for a reaffirmation by Governments of the basic rules and principles established in the humanitarian field for the protection of refugees and asylum-seekers. There is, moreover, an urgent need to give these principles greater effect through the adoption of necessary implementing measured at the national level. It should be recalled that such measures have an impact going beyond their immediate scope, and thus serve to strengthen and consolidate the entire framework of international protection.

Specific problems

6. In regard to asylum, it is of the utmost importance that Governments take the necessary administrative measures to ensure that all persons seeking asylum at their borders are granted temporary admission to enable their request to be examined. Such measures are of special importance in situations where a refusal of temporary admission may result in very serious and sometimes irreparable - consequences for the asylum-seeker.

7. Where refugee status is a criterion for the grant of asylum, it is particularly necessary that requests be examined under appropriate procedures for determining refugee status. Recent experience has again shown that the basic rights of refugees - including protection against refoulement - can be disregarded because a refugee has not been identified as such. While it is gratifying to note that a number of Governments, following the conclusions made by the Executive Committee at its twenty-eighth and twenty-ninth sessions, have either established procedures or are actively considering this possibility, an acceleration in the rate of progress would be of particular significance at the present juncture. It would provide concrete evidence of the concern of the international community that applications for asylum and for the grant of refugee status be treated with all the seriousness that they deserve, and that situations in which refugees are exposed to danger because their claims to refugee status have not been properly examined should be avoided. The High Commissioner trusts that he will be in a position to report further progress in this matter in the near future¹.

8. At a time when the basic rights of refugees are threatened or have been seriously disregarded in different areas of the world, there is a need for the international community to reaffirm the standards of treatment defined in the basic international refugee instruments. The High Commissioner, with the support of the Executive Committee, has continued to encourage further accessions to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. While the number of States parties to the Convention and/or the Protocol has now reached 78, the rate of progress is still not sufficient and, in various parts of the world where there are major refugee problems, refugees are still without the basic minimum protection afforded by these instruments. In view of recent developments, the High Commissioner considers that further accessions to the Convention and to the Protocol by a substantial number of States on different continents are now required as a matter of extreme urgency.

Progress and positive trends.

9. The various negative developments to which reference has been made above should not, of course, overshadow a number of positive and more encouraging trends in the field of international protection. In two specific refugee situations in Africa and Asia, voluntary repatriation - the most desirable solution to refugee problems - has taken place on a large scale. Many States have continued to follow liberal and humanitarian practices in granting temporary and durable asylum and to attach particular importance to the observance of the principle of non-refoulement. A number of States are now giving active consideration to the establishment of procedures for determining refugee status. As regards the 1951 Convention and the 1967 Protocol, a further two States have acceded since the Committee's twenty-ninth session, and accession is under active consideration by a number of other States.

10. In carrying out his international protection tasks, the High Commissioner has received considerable encouragement from the action taken by Governments at the regional level. In this respect, the Conference on the Situation of Refugees in Africa, held in Arusha, United Republic of Tanzania, from 7 to 17 May 1979, was of outstanding importance. The Conference reaffirmed a number of fundamental principles concerning the treatment of refugees and asylum-seekers, notably the principle of non-refoulement, the principle of the granting of temporary asylum and the principle of international solidarity and "burden-sharing" in relation to countries of first asylum. The Conference also recognized the importance of procedures for determining refugee status or other appropriate arrangements for identifying refugees, and also the need to facilitate the movement of refugees, especially for the purpose of study, professional training or resettlement. The report and recommendations² of the Arusha Conference were endorsed by the sixteenth Summit Conference of Heads of State and Government of the Organization of African Unity which met in Monrovia, Liberia, from 17 to 20 July 1979. The High Commissioner considers that the work of the Conference will be an important factor in improving the legal situation of refugees in Africa and will help further to strengthen the principles established for the treatment of refugees at the universal level.

11. A significant increase in the number of refugees in Central America was marked by a corresponding willingness on the part of Governments to provide asylum and material assistance.

12. The High Commissioner has greatly welcomed the various initiatives taken within the Council of Europe with a view to resolving a number of specific problems arising in the international protection field, notably as regards asylum, procedures for the determination of refugee status, and the transfer of responsibility for the issue of 1951 Convention Travel Documents. The High Commissioner would like to express his appreciation for the close co-operation between the Council of Europe Secretariat and his Office in regard to these various matters.

13. At its twenty-ninth session the Committee recognized the value of efforts to promote a wider dissemination of the principles of refugee law³. The High Commissioner considers that such dissemination constitutes an essential supportive activity of traditional efforts in regard to international protection. Activities in regard to the dissemination of refugee law have been carried out by the Office on an increasing scale. A description of these activities and a programme for future action is submitted to the Committee at its present session

Conclusion

14. The High Commissioner believes that the past few years have witnessed considerable progress in the field of international protection. The experience of recent months has, however, served to focus attention on the magnitude of the tasks that still lie ahead. These tasks will call for an exceptional effort by UNHCR, and the High Commissioner trusts that he can rely on the full support of the Executive Committee and of the international community for their accomplishment.

1 For a description of the present situation see Note on procedures for the determination of refugee status under international instruments, A/AC.96/INF.152 and A/AC.96/INF.152/Add.1

2 For text of the recommendations see document A/AC.96/INF.158.

3 See document A/AC.96/INF.159 on dissemination of refugee law.