Note on International Solidarity and Refugee Protection

EC/SCP/50

1. The international community and the Office of the United Nations High Commissioner for Refugees together are confronted by a deteriorating situation of refugee protection. It has become commonplace to speak of "compassion fatigue" when it comes to durable solutions for certain, complex refugee problems, but this fatigue, seemingly, is now challenging a much broader spectrum of refugee responses, not least in the area of refugee protection.

2. Asylum countries are faced by complicated, often burdensome, difficulties which require sympathetic understanding. In a number of situations, however, the responses of States have not satisfied basic principles of refugee protection or even complied with assumed obligations towards refugees. The High Commissioner's efforts to deal with resulting protection problems and to assist the persons concerned, in accordance with his humanitarian mandate, have not always met with a forthcoming or supportive approach from other States.

3. The present Note attempts to set the problems facing UNHCR In their current perspective. It also highlights certain fundamental protection obligations and expands, In the context of international solidarity, on the broader responsibility of States to co-operate fully with international protection efforts, particularly those of the High Commissioner for Refugees.

A perspective on the problem

4. Refugee flows have considerably changed in character, composition and geographic impact since the international community, earlier this century, made its first, concerted effort to respond to them. The range of forces compelling flight, the numbers seeking asylum, the impact of refugee flows on already heavily burdened economies, world-wide economic recession and movements of people between continents have all contributed to hardening public and government attitudes to genuine as well as abusive asylum demands.

5. States' responses have been conditioned by the difficulties facing governments of receiving countries as a result of the large scale arrival of asylum-seekers. In a number of countries, asylum determining authorities have been put under severe pressure with the backlog of claims building up and asylum processing becoming protracted. Reception and integration facilities have been strained and expenses for material assistance have increased. As a result, immigration control mechanisms, including sanctions against airlines for carrying improperly documented passengers and widespread visa requirements, have been put in place, inter alia to check the flow of asylum-seekers. This has been presented in terms of political and economic realism against a backdrop of recession, inflation and unemployment in receiving countries. These are factors which may determine migration intakes, but refugees are not migrants.

6. In one area of the world, large scale influxes of refugees have been a disturbing feature for over a decade. Countries of first asylum have become frustrated by the socio-economic problems for their developing economies, the political and security difficulties accompanying influxes and what they perceive as a growing abuse of asylum structures and a waning international solidarity in sharing their burdens. Harsh measures to deter asylum-seekers and erosion of the practice of temporary asylum have resulted.

7. In other regions, ecological disasters and internal disturbances, or armed conflict, continue to produce movements of asylum-seekers which are a heavy burden on the already limited resources of the receiving countries. The refugees are the product of, and increasingly become hostage to, prevailing ideological, ethnic or religious conflict and political turmoil. They are sheltered in large numbers, but they are also periodically refouled, expelled, attacked, or forcibly recruited to take part in armed conflict.

8. It is against this background that the deterioration in the international protection situation faced by UNHCR must be viewed. The real problems faced by asylum countries cannot be allowed to generate a situation, either nationally or globally, where refugees fleeing persecution, or throats to life, liberty or security are unable to find a safe haven.

9. The Executive Committee of the High Commissioner's Programme, during its thirty-eighth session in 1987, itself addressed the issue, although in a limited context, in its General Conclusions on Protection,¹ the Committee:

"Called upon States that have adopted a number of measures aimed at discouraging abusive use of asylum procedures to ensure that these measures have no detrimental effect on the fundamental principles of international protection, including on the institution of asylum."

10. This Note, in summary, argues that it is in the direct interest of all concerned and a necessary corollary of the humanitarian responsibilities of States that responses to influxes of asylum-seekers satisfy basic principles of international protection, comply with the obligations of States towards refugees, support the High Commissioner's protection function and do not have an adverse impact on international co-operation to resolve refugee problems.

Fundamental protection obligations - non-refoulement and asylum

11. States' obligations to protect refugees are derived from general principles of international law binding on all States and through adherence to international and regional instruments. The most important obligation, summarized in the term non-refoulement, is to refrain from forcibly returning a refugee to a country where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. This principle, enshrined in a number of binding instruments and incorporated in declarations and General Assembly resolutions, has acquired the status of a norm of customary international law.

12. The first need of a refugee fleeing his or her country is that of asylum. That there is a right of asylum - i.e. the right to seek and enjoy asylum - is stated plainly in Article 14 of the Universal Declaration of Human Rights,² which is recalled in the 1967 Declaration on Territorial Asylum.³ The content of this right enjoys no universally agreed definition, but there has been a significant measure of international agreement that asylum should be granted. The Diplomatic Conference, held in Geneva from 10 January to 4 February 1977 to elaborate and adopt a Convention on Territorial Asylum,⁴ failed in this, its principal, objective, but at least achieved a consensus⁵ on Article 1, which provided for the granting of asylum in the following terms:

"Each contracting State acting in the exercise of its sovereign rights shall endeavour in a humanitarian spirit to grant asylum in its territory to any person eligible for the benefit of this Convention."

13. The 1969 Organization of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa contains a specific provision much along the same lines. Article II (1) provides:

"Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality."

Resolutions, declarations or principles adopted by regional groupings and calling for a liberal or forthcoming attitude to granting asylum include the 1966 Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee,⁶ the 1977 Declaration on Territorial Asylum of the European Community Committee of Ministers⁷ and the 1984 Cartagena Declaration on Refugees.⁸

Responsibility of States to co-operate with UNHCR

14. An institutional link joins States and UNHCR in the common pursuit of solutions and the protection of refugee rights. Having created and entrusted responsibilities to the Office, including a unique mandate in relation to protection, States must ensure that the Office has not only the material resources, but also the political and moral support necessary to fulfil its mandate, of which protection is a central part.

15. The Executive Committee has long recognized the crucial importance of the High Commissioner's protection function and that it can be effectively carried out only with the full support of governments. The thirty-sixth session of the Executive Committee in 1985 said this directly.⁹ Moreover, at its thirty-eighth session in 1987 the Executive Committee:

"Recognized that the changing nature and elements of the contemporary refugee problem required greater understanding on the part of the international community of the special needs and circumstances of asylum-seekers and refugees and the full support of all States for the efforts of the High Commissioner on their behalf."¹⁰

At this same session, the Executive Committee reiterated the High Commissioner's leading role in respect of the protection of refugees and "called on him in particular to continue to take alone or in co-operation with concerned States and agencies all possible measures to ensure" the refugees' physical security.¹¹

16. International protection provides the basic raison d'être for the creation of UNHCR. It is this international protection role which gives UNHCR its distinctive position among the agencies of the United Nations. In the Statute of the Office this function is framed in mandatory language and a positive duty is thereby imposed on the High Commissioner. Paragraph 8, chapter II, describes international protection as including, inter alia, promotion of the admission of refugees, supervision of the application of international conventions for the protection of refugees and promotion of the execution of any measures calculated to improve the situation of refugees and to reduce the numbers requiring protection.

17. In general terms, UNHCR's protection function has a dual purpose - to ensure that refugees benefit from the principles of international protection and that States do not take measures which adversely affect the interests of refugees.

18. In countries which are parties to the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol, the content of UNHCR's protection role derives mainly from its duty of supervising the application of the Convention/Protocol. UNHCR is, however, also able to rely on its Statute, the humanitarian principles underlying the Convention and those deriving from other branches of general humanitarian law. State consensus on particular principles, as evidenced by State practice or set out, for example, in conclusions of the Executive Committee, also provide guidance.

19. There are 104 States Parties to the 1951 Convention and/or its 1967 Protocol. These include the very large majority of western, African and Latin American countries and five countries in Asia. Amongst the principal characteristics of this Convention, Article 35(1) stipulates that:

"The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees ..... in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention".

This Article, which places a duty on States Parties to co-operate with UNHCR, reflects the sentiment of preambular paragraph 6 of the Convention which reads:

"Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner."

20. In relation to countries not parties to the 1951 Convention/1967 Protocol, UNHCR's protection activities rely on regional instruments or declarations, its Statute and the broader principles, including Executive Committee conclusions and State practice as referred to in paragraph 18 of this Note. Article 35 of the 1951 Convention has its counterpart in the 1969 OAU Convention which, in Article VIII, specifies that "Member States shall co-operate ... " with UNHCR.

Co-operation between States - international solidarity

21. The drafters of the 1951 Convention envisaged not only States' co-operation with UNHCR but, more broadly, international co-operation among States in the field of asylum and resettlement. The Conference of Plenipotentiaries which completed the Convention adopted unanimously, amongst other recommendations, the following Recommendation D:¹²

"Considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position,

Recommends that Governments continue to receive refugees in their territories and that they act in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement".

22. Clearly, therefore, international co-operation in the resolution of refugee problems was foreseen as a priority by the drafters of the Convention. This does no more than recognize the reality, as has the Executive Committee, that the High Commissioner is not able to exercise his humanitarian functions without the co-operation of States. It reflects, moreover, recognition by the international community that refugee problems are international in character and scope. Resolution 319 (IV) of 3 December 1949, which contains the decision of the General Assembly to establish UNHCR, in fact opens with the words: "Considering that the problem of refugees is international in scope..".

23. A framework for international co-operation in responding to refugee problems is provided for broadly in the Charter of the United Nations which, in Article I, defines the achievement of international co-operation as one of the main purposes of the United Nations, with particular reference to the solution of international problems of an economic, social, cultural and humanitarian character. The duty of States to co-operate with one another and United Nations bodies in accordance with the United Nations Charter is further developed in the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.¹³ In this Declaration, it is stated, inter alia, that

"States shall co-operate in the promotion of universal respect for and observance of human rights and fundamental freedoms for all and in the elimination of all forms of racial discrimination and all forms of religious intolerance."

The Declaration also declares:

"The principles of the Charter which are embodied in this Declaration constitute basic principles of international law and consequently (an appeal is made) to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles."

24. In this same spirit, it is now broadly accepted that international solidarity is a guiding principle determining international resolution of refugee problems. This has been made explicit in virtually every United Nations resolution concerning the work of UNHCR adopted by the General Assembly.

25. International solidarity is a concept which plays an extremely important role in the protection of refugees, partly as it assists States to meet their non-refoulement and asylum obligations. Article 2(2) of the Declaration on Territorial Asylum (1967) provides:

"Where a State finds difficulty in granting or continuing to grant asylum, States individually or jointly or through the United Nations shall consider in a spirit of international solidarity, appropriate measures to lighten the burden on that State."

The 1969 OAU Convention contains, in Article II (4), a similar provision.

26. The close link between solutions to refugee problems, asylum and international co-operation is also recognized in the Preamble of the 1951 Convention which, in preambular paragraph 4, states:

"Considering that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation."

27. The definition on the international level of such basic principles governing the treatment of refugees as non-refoulement or a right of asylum is, in fact, one important example of the effective functioning of international solidarity. There is, here, a clear collective State interest in ensuring that the standards which one State applies are those applied also by other States. Unilateral measures resiling from international standards or responsibilities will have as one effect the shifting of the burden to other States.

28. It must, however, be reiterated that international solidarity is no substitute for the fundamental principles of non-refoulement and asylum; nor is it a pre-condition for the observance of basic humanitarian principles. The observance of these principles should not vary according to the extent to which the burden sharing arrangements are at any given moment considered to be adequate.

Conclusions

29. The legitimate concerns of refugee-receiving governments must be acknowledged. While the intensified search for solutions to the problems they face needs to be pragmatic and imaginative, the fundamental humanitarian principles of treatment which are broadly accepted as a legitimate and proper expectation of the refugee community must be maintained. Pragmatism, no matter how tempting, can never be at the expense of these principles. The international community must jointly strive to ensure that the principles which underpin the High Commissioner's mandate are not compromised. Constructive common efforts are required to tackle the refugee problem without undue rigidity, but within the humanitarian parameters which the international community has painstakingly elaborated over the past four decades.

30. In summary, the following conclusions, among others, might be drawn from the foregoing paragraphs of this Note:

• Refugee problems are the concern of the international community and their resolution is dependent on the will and capacity of . States to respond in concert and in full measure, in a spirit of true humanitarianism and international solidarity;

• States have obligations, founded in customary international law or undertaken in multilateral treaties, to accord protection and a basic standard of treatment to refugees; these obligations are binding and must be performed in good faith;

• The Office of the United Nations High Commissioner for Refugees was conceived of in the context of an urgent need to protect refugees and it is the protection function which uniquely characterizes the Office;

• States have defined the protection responsibilities of the Office and have a responsibility to ensure that the Office is able to fulfil its mandate on the basis of the fundamental, humanitarian principles motivating its work;

• There is a close relationship between international solidarity and asylum; the Preamble of the 1951 Convention relating to the Status of Refugees recognizes that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution of a problem recognized by the United Nations as international in scope cannot be achieved without international co-operation;

• The principle of international solidarity has a fundamental role to play in encouraging liberal asylum policies and in the effective implementation of international protection in general;

• While, however, international solidarity is a key to the satisfactory resolution of refugee problems, it can never serve as the pre-condition for compliance with basic humanitarian principles;

• The definition on the international level of basic standards for the treatment of refugees is an important example of the effective functioning of international solidarity;

• States and UNHCR are joined in the common pursuit of solutions and the protection of the fundamental rights of refugees; they must continue actively to support the protection functions of the High Commissioner through all appropriate means, both bilateral and multilateral, as well as to abide by their own humanitarian responsibilities towards refugees, including, particularly, to safeguard the right to seek and enjoy asylum and to ensure that no refugee is forcibly returned to a country where he fears persecution or where his physical safety is in serious jeopardy.

1 Document A/AC.96/702, p. 36.

2 General Assembly Resolution 217 A(III) of 10 December 1948.

3 General Assembly Resolution 23/2 (XXII) of 14 December 1967.

4 For text see UN Document A/CONF.78/12, see also, generally, Grahl-Madsen "Territorial Asylum", 1980, pp 208-211.

5 UN Document A/CONF.78/12, Annex 1, para. 16V and VI.

6 For text, see Report of the eighth session of the Asian-African Legal Consultative Committee, held in Bangkok from 8-17 August 1966, page 335.

7 Adopted by the Committee of Ministers on 18 November 1977, at the 278th meeting of the Ministers' Deputies.

8 Adopted by a colloquium of Central and South American government representatives and experts in Cartagena on 22 November 1984.

9 Conclusion No. 36 (XXXVI). See Conclusions on the International Protection of Refugees, published and updated by UNHCR.

10 General conclusions on Protection, (b), in UN Document A/AC/96/702.

11 IBID, Conclusion (f).

12 See Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons.

13 General Assembly Resolution 2625 (XXV) of 24 October 1970.