Note on International Protection (Submitted by the High Commissioner)

A/AC.96/518

Introduction

1. A comprehensive account of developments in the field of international protection for the period 1 April 1974 to 31 March 1975 is given in the High Commissioner's Report to the General Assembly at its thirtieth session (document A/10012). New developments are mentioned as appropriate in this Note, the main purpose of which is, however, to indicate certain more general problems which have arisen since the Committee's twenty-fifth session and also to consider some specific aspects of International Protection.

Draft Convention on Territorial Asylum

2. At its twenty-fifth session the Executive Committee reaffirmed its view that a Conference of Plenipotentiaries on Territorial Asylum should take place as soon as possible and recommended that the Conference should be preceded by a meeting of a group of governmental experts to review the text of the draft Convention. It also recommended that these views be conveyed to the General Assembly.

3. By Resolution 3272 (XXIX) of 10 December 1974, the General Assembly decided to establish a Group of Experts on the Draft Convention on Territorial Asylum composed of representatives of not more than 27 States to be designated by the President of the General Assembly, after consultation with the different regional groups on the basis of equitable geographical distribution.

4. In a communication dated 27 March 1975, the President of the General Assembly informed the Secretary-General that, following consultations with the chairmen of the regional groups, he had appointed the following 27 States to be members of the Group of Experts: Argentina, Australia, Austria, Belgium, Brazil, Costa Rica, France, India, Indonesia, Iran, Iraq, Italy, Kenya, Mali, Mexico, Nigeria, Sri Lanka, the Sudan, Sweden, Tunisia, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics, the United Kingdom, the United States of America, Uruguay, Yugoslavia and Zaire.

5. In paragraph 3 of the above-mentioned resolution, the General Assembly requested the Secretary-General, in consultation with the Office of the United Nations High Commissioner for Refugees, to convene the Group of Experts not later than May 1975 and to review the present text of the draft Convention within a period of not more than ten working days. The Group of Experts met duly at Geneva from 28 April to 9 May 1975.

6. Pursuant to Resolution 3272 (XXIX), the Secretary-General will submit a report to the General Assembly on the meeting of the Group of Experts, together with a proposed date for the convening of a conference of plenipotentiaries.

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

7. While most of the countries where the majority of refugees are located have acceded to the 1951 Convention and 1967 Protocol, the High Commissioner is increasingly concerned at the marked slowdown in the rate of new accessions to these instruments in recent years. Since the last session of the Committee there have been no accessions to the 1951 Convention, in spite of continued efforts including an appeal from the High Commissioner in 1974 to all governments which have not yet acceded to this basic instrument.¹ It should be mentioned that there are countries, notably in Asia, which are directly or indirectly concerned with refugee situations and whose accession to the Convention and the Protocol would be particularly valuable.

8. Accession by States which are directly involved in refugee problems is, of course, essential. However, the problems of refugees, which are of a universal character, tend to emerge rapidly and unexpectedly in countries where they have not occurred before. Political changes can cause a sudden exodus of refugees and swift action an the part of neighbouring countries may then become necessary. If a State has acceded to the Convention and/or Protocol, refugees may at least claim legal status in such vital fields as the right to work, social security and education. They are entitled to travel documents that take the place of passports, and, more important, they are protected against refoulement, i.e. they may not be sent back or expelled in any manner whatever to a country where they fear persecution.

9. For such reasons it is essential that all countries, including also those which are not faced with or are not affected by refugee problems should become parties to the Convention and Protocol.

10. Meanwhile, in accordance with article 8(b) of the Statute, UNHCR is endeavouring to negotiate bilateral agreements with the governments of countries which have not yet ratified the 1951 Convention and/or the 1967 Protocol. Such agreements would be desirable in order to secure indispensable co-operation for the international protection of refugees who may be in the territory of these countries. They would provide for UNHCR to advise the Government with regard to assistance to refugees or displaced persons and for the Government to inform the High Commissioner of cases involving requests for asylum and to refrain from returning to his country of origin an applicant for asylum who had valid reasons for claiming asylum.

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

11. It will be recalled that, at its nineteenth session in October 1968, the Executive Committee agreed that it would be desirable for UNHCR to receive more detailed information in respect of the implementation of the Convention and Protocol (A/AC.96/403, paragraph 62(e)). This decision was taken pursuant to Articles 35 and 36 of the 1951 Convention and Articles II and III of the 1967 Protocol, by virtue of which Contracting States undertake to provide UNHCR with information and statistical data concerning the implementation of the instruments concerned.

12. For this purpose a questionnaire for reporting on the application of the provisions of the 1951 Convention was drawn up in co-operation with the International Labour Office and was sent to the 63 States parties to the Convention and/or the Protocol. So far 37 governments² have replied, no further replies having been received since the last session of the Executive Committee. Among those governments which have replied, some have been asked to supply more detailed information. In the circumstances, the report mentioned in Document A/AC.96/508/Add.3 of the twenty-fifth session of the Committee will be issued once such supplementary information is received.

13. The questionnaire has provided UNHCR with useful data on the implementation of the 1951 Convention and 1967 Protocol in several countries. However, as the High Commissioner indicated in his Report to the General Assembly at its twenty-eighth session (Document A/9012, paragraph 17), it will be necessary for him to go one step further and seek additional information concerning the regulations adopted to give effect to refugee legislation.

14. Other methods which have proved their usefulness as sources of information will continue to be used, such as the careful scrutiny of reports from the UNHCR Branch Offices and Correspondents and from non-governmental organizations. The continuing survey of individual cases presenting protection problems will also provide detailed information on the manner in which instruments of interest to refugees are implemented by the Contracting States. Further efforts in that direction will be made in order to redress as far as possible any shortcomings which would result from the inadequate implementation of the Convention and/or Protocol in certain countries.

1961 Convention an the Reduction of Statelessness

15. Article 18 of the Convention on the Reduction of Statelessness of 28 August 1961 provides that the Convention shall enter into force two years after the date of the deposit of the sixth instrument of ratification or accession. Consequently, the Convention³ will enter into force on 13 December 1975, two years after the sixth State, Australia, acceded to it.

16. By Resolution 3274 (XXIX), the General Assembly requested the High Commissioner provisionally to undertake the functions foreseen in Article 11 of the 1961 Convention, when it comes into force, and decided to review the situation not later than its thirty-first session with a view to taking a decision on the establishment of the body envisaged under Article 11.

17. UNHCR is not in a position to assist stateless persons entitled to the benefit of the 1961 Convention on the Reduction of Statelessness, unless it is informed of their existence. The first step to be taken therefore is to obtain statistics and particulars of stateless persons from States which are parties to this Convention, so as to enable UNHCR to ensure that persons entitled to its benefit get the necessary assistance for their claims to be examined. Non-governmental organizations could play an important role in transmitting names of stateless persons to UNHCR, in order to enable them to benefit from the 1961 Convention.

De facto refugees

18. At the twenty-fifth session of the Committee, several representatives expressed their concern for persons referred to as de facto refugees and in its conclusions, the Committee expressed the hope that special attention be given to their situation, in particular within the context of the preparatory work for the draft Convention on Territorial Asylum.

19. In order to ascertain the scope and nature of this relatively new problem, UNHCR representatives in countries where it has so far arisen (i.e. a number of European countries), were asked to make enquiries on the spot and to report as fully as possible on their findings. Since, by the very nature of the problem, the majority of the persons concerned are not centrally registered, it has proved difficult to identify them. A preliminary assessment indicates that the number of de facto refugees is much smaller than was thought. They include persons who might be eligible under the Mandate but who have not applied for refugee status either because they are not aware of the possibilities that are open to them in this respect or because, often for personal reasons, they do not wish to be officially registered as refugees. There are also some persons among them whose applications have been rejected, sometimes because eligibility criteria might have been too rigidly applied.

20. The problem is being further studied; meanwhile, the Office continues to promote a liberal eligibility policy in keeping with its usual practice. Furthermore, UNHCR Representatives will continue to give potential applicants the necessary guidance so that they are fully informed of their rights and, in particular, of the consequences of not applying for refugee status. Voluntary agencies are also being encouraged to continue to counsel applicants accordingly. If need be, legal assistance can also be increased in order to advise the persons concerned on their eligibility and to enable them to be legally represented in appeal proceedings and, if necessary, to receive legal aid free of cost.

21. The existing legal instruments relating to the status of refugees, and in particular the 1951 Convention and 1967 Protocol and, hopefully, at a subsequent stage, the draft Convention on Territorial Asylum, constitute an adequate basis for the international protection of refugees provided that they are fully implemented in a liberal manner.

22. It may be interesting to note that the Group of Experts on the draft Convention on Territorial Asylum has proposed the addition of a new article which would make it clear that nothing therein would prevent Contracting States from granting asylum to persons other than those covered by Article 2 (1) of the Convention; asylum could also be granted on conditions more favourable than those laid down in the Convention. Should this proposed new article be adopted, and should the Convention come into force, de facto refugees would be covered as far as territorial asylum in Contracting States is concerned. They could also be granted whatever conditions are deemed suitable. The problem of their situation outside Contracting States would, however, still remain.

23. The drawing up of a special legal instrument for the benefit of de facto refugees would unavoidably result in the creation of two separate categories of refugees, one of which would benefit from less favourable treatment than the other. The 1951 Convention and 1967 Protocol, together with the draft Convention an Territorial Asylum, once it has been adopted and put into effect, constitute an adequate basis for the international protection of refugees provided that these instruments are fully implemented. This is all the more important in that there is still a great deal to be done to improve the legal position of refugees coming within the Mandate of UNHCR. Since many of the de facto refugees come within the UNHCR Mandate, they would benefit from the 1951 Convention and/or 1967 Protocol, if the provisions of these instruments were given a more liberal interpretation. The High Commissioner will, of course, always be prepared, as in the past, to lend his co-operation to initiatives taken for the benefit of refugees at the regional level.

Determination of country of permanent asylum

24. One of the important problems frequently faced by UNHCR is determination of the country of permanent asylum of refugees. In many countries, including some which are parties to the 1951 Convention or 1967 Protocol, asylum is often refused to persons who have already passed through or stayed for some time in another country, without having requested permanent asylum there. The reason behind this practice seems to be the feeling that refugees should ask for permanent asylum in the country to which they are first admitted after leaving their country of origin, rather than that they should be able to select a country of prospective asylum, possibly for reasons of personal convenience.

25. This practice causes difficulties, particularly if the other country or countries through which the asylum seeker has passed is an unsuitable one for him in which to settle permanently. It would greatly help in such cases if countries in which such refugees first request permanent asylum could look sympathetically at the request, and give either permanent asylum, or at any rate temporary residence pending arrangements for his resettlement to another country willing to accept him.

Legal problems of individual cases

26. With the over-all increase in the number of refugees requiring UNHCR assistance and in the number of countries where they are located, the problems of individual cases have assumed such proportions that they tend at times to overshadow other protection activities. It has become necessary, therefore, to identify more clearly the specific problems concerned and to determine the means required to obviate their tragic human consequences and to prevent their recurrence.

27. A survey of individual cases was accordingly started in 1974. It will be continued on a current basis and the Committee will be kept informed of its results and of the conclusions that might be drawn from it. At the present initial stage, the survey necessarily covers only a selection of particularly difficult cases, involving some 700 persons during the period July 1974 to June 1975. By February 1975, a solution had been found for the problems of about one-third of the then caseload of 550.

28. Of the total of 700 there is an important proportion of persons threatened with expulsion and for whom resettlement opportunities must be found in other countries. In a number of cases there have been flagrant violations of the principles of asylum and non-refoulement. There have also been cases where the authorities of a country of origin abducted refugees and returned them forcibly to their country. Whenever these cases come to UNHCR's attention, interventions are made with the authorities concerned though it is then sometimes no longer possible to right the situation.

29. States often evince excessive reticence about granting asylum to refugees, invoking economic reasons or considerations of national security. Sometimes they may also be afraid of prejudicing their relationship with neighbouring countries although, as stated in some of the international legal instruments concerned, the granting of asylum is, by its very nature, a peaceful and humanitarian act and should in no way be construed as a hostile gesture towards another State.

30. UNHCR has also been confronted with cases of refusal to issue or to renew the travel documents provided for under the 1951 Convention.

31. Another shortcoming is the absence in some countries of an adequate procedure for determining the eligibility of refugees, which gives rise to arbitrary measures. Governments are of course aware of the importance of this question. It is hoped that those which have not yet done so will make every effort to have the screening of applications entrusted to qualified staff. Moreover, in view of the capital bearing that a decision on refugee status may have on an individual's future, it is essential that an appeals procedure be established.

Family reunion

32. At previous sessions the Committee has consistently indicated the importance it attaches to the principle of family reunion. In line with the provisions of Section IV B of the Final Act of the Conference of Plenipotentiaries an the Status of Refugees and Stateless Persons which, inter alia, recommend that governments "take the necessary measures for the protection of the refugee family", the Office has continued to promote the reunion of separated families of refugees who request its assistance in this respect. The daily practice shows how much suffering refugees have to endure because of the obstacles and undue delay brought by the authorities of some countries in allowing relatives of refugees to leave their country in order to join their family. Since the Committee's twenty-fifth session, UNHCR has submitted a number of cases to the relevant national authorities, in some cases with positive results. There are furthermore hundreds of cases where family reunion depends on the possibility of refugees obtaining resettlement opportunities in other countries as well as the travel and identity documents required to accomplish their journey.

33. It is very much hoped that all countries concerned will in future ease their policy in this matter so as to facilitate for humanitarian reasons the reunion of separated refugee families thus permitting them to resume a normal life in the country where they have chosen to live. In this connexion, mention should be made of the expressed intention of the States participating in the Conference on Security and Co-operation in Europe to deal in a positive and humanitarian spirit with requests for family reunion and to give special attention to requests of an urgent nature such as those submitted by old and sick persons.

Registration of assets of Asians of undetermined nationality from Uganda

34. The High Commissioner informed the Committee at its twenty-fifth session that the Assets Records Unit for Asians of undetermined nationality from Uganda had been set up. He has informed the 23 governments which accepted this group of persons in their countries for resettlement and has requested them to communicate this information to those among them who have been resettled in their countries so that they could apply to UNHCR for the necessary registration forms.

35. As at 31 July 1975, application forms had been sent out to an estimated 800 persons, 300 of whom returned them duly completed so that they could be transmitted by UNHCR to the Uganda Authorities.

36. UNHCR expects to receive several thousand more applications.

1 As regards the 1967 Protocol one accession took place, namely that of Zaire on 13 January 1975.

2 Algeria, Australia, Austria, Belgium, Botswana, Burundi, the Central African Republic, Cyprus, Denmark, Ecuador, Ethiopia, Finland, Germany (Federal Republic of), Ghana, Ireland, Israel, Italy, Liechtenstein, Luxembourg, Madagascar, Monaco, Morocco, the Netherlands, New Zealand, the Niger, Nigeria, Norway, Senegal, Sweden, Switzerland, Tunisia, Turkey, the United Republic of Cameroon, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Zaire and Zambia.

3 Australia, Austria, Ireland, Norway, Sweden and the United Kingdom are parties to this Convention.