Note on International Protection (Submitted by the High Commissioner)

A/AC.96/555

1. The principal developments in the field of international protection up to 31 March 1978 have been described in the High Commissioner's Report submitted to the General Assembly at its thirty-third session through the Economic and Social Council (document E/1978/75). These and later developments, which will duly be brought to the attention of the Executive Committee at its twenty-ninth session, have provided further evidence of the continuing importance of international protection as a basic function of the Office.

2. At its twenty-eighth session the Committee considered in detail a number of important aspects of international protection. Its conclusions in this regard have been of particular value in focusing attention on the issues involved and have also provided significant support to the Office in its efforts to secure increasing acceptance and understanding of the ideas and principles on which international protection is based.

3. The conclusions and recommendations of the Committee at its twenty-eighth session related in particular to international instruments, asylum, non-refoulement, expulsion, determination of refugee status, family reunion and strengthening of protection staff. The High Commissioner proposes to review some of these subjects in the light of recent developments.

4. As regards international legal instruments, the High Commissioner, pursuant to the Committee's recommendations, undertook an initiative to promote further accessions to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and also the withdrawal of the geographic limitation and various reservations still maintained by certain States parties to these instruments. The High Commissioner is pleased to report that, since the Committee's twenty-eighth session and as of 30 June 1978, three States have acceded to both the 1951 Convention and the 1967 Protocol, bringing the total number of States parties to these basic instruments to 72 and 67¹ respectively. The High Commissioner has also been informed that in various other States the procedure for accession has either reached an advanced stage or that the matter is under active consideration.

5. This development is very much to be welcomed. The major international instruments have, however, so far been acceded to by only approximately one-half of the States Members of the United Nations or of the Specialized Agencies and there are, therefore, still a considerable number of States, including some with sizable refugee problems, which are still not parties to the Convention or to the Protocol.

6. Furthermore, the implementation of the provisions of the Convention and Protocol has not progressed in any significant manner since the Committee's twenty-eighth session. In a large number of countries, in the absence of specific constitutional provisions to this effect, international conventions do not automatically become part of national law. In other countries, ratified international conventions, although an integral part of national law, do not take precedence over the latter. Even in countries where ratified international conventions are constitutionally part of national law and take precedence over it, the implementation of the 1951 Convention and the 1967 Protocol in practice requires that specific legislative and/or administrative measures should take account of the special legal position of the refugee. The systematic and effective implementation in national law of the provisions of the 1951 Convention and the 1967 Protocol therefore requires constant effort, not only by the authorities of Contracting States but also, within the framework of Article 35 of the Convention and Article II of the Protocol, by the Office of the High Commissioner.

7. These activities require to be conducted chiefly at national level. It is also in order to be able to carry out these activities in a more effective manner that the High Commissioner is endeavouring to strengthen the field-offices with protection staff. Since the twenty-eighth session of the Executive Committee the situation has improved in this respect, or will improve shortly in five field offices out of 48. Largely thanks to the understanding and co-operation of a number of governments which have made available the services of Junior Professional Officers, additional staff with adequate legal training is being sent out to field offices in developing countries. The need for protection staff is not however restricted to field offices in the developing countries, i.e. to countries where municipal refugee law is often in its incipient phase. Experience has shown that the need for protection staff may be even greater in countries of the industrial world, where municipal legislation is usually very extensive and where, accordingly, protection and legal activities on behalf of refugees are complex and time-consuming.

8. The question of the determination of refugee status and the establishment of procedures for this purpose continues to be a serious preoccupation of the Office. The importance of procedures for the determination of refugee status was recognized by the Executive Committee at its twenty-eighth session. In its conclusions on this subject, the Committee expressed the hope that all States parties to the 1951 Convention and the 1967 Protocol that had not yet done so would take steps to establish such procedures in the near future and give favourable consideration to UNHCR participation in such procedures in appropriate form. Since the Committee's twenty-eighth session two States have introduced new procedures for the determination of refugee status, and one State has revised its previous procedure by new legislation. As a result of these measures, the number of States that have established formal procedures for determining refugee status has risen to 20 out of 75 Contracting States.

9. The conclusions of the Executive Committee regarding procedures for the determination of refugee status have been brought by the High Commissioner specifically to the attention of interested governments. The High Commissioner proposes to continue his consultations with governments on this matter during the coming months. In a number of countries, difficulties are being encountered in convincing administrations that the establishment of a formal procedure, by the amendment of existing arrangements or otherwise, is a natural corollary to accession to the Convention and Protocol. While it is appreciated that the formal determination of refugee status and the establishment of special procedures for this purpose may represent an administrative burden for certain governments, the High Commissioner would like to recall that the absence of a formal determination of refugee status has in certain cases prevented refugees from taking advantage of the rights established for their benefit under international instruments and under municipal law. In other cases, refugees have been exposed to serious measures of detention, expulsion and even refoulement due to their status not having been formally determined.

10. It is therefore hoped that the need for the formal determination of refugee status will be given further recognition and support through the establishment by all governments of appropriate determination procedures reflecting the basic requirements defined by the Executive Committee in the conclusions adopted at its twenty-eighth session.

11. The favourable as well as the negative developments regarding asylum and non-refoulement have been reviewed in document E/1978/75. It may be appropriate to mention here some of the reasons why difficulties connected with the granting of asylum have continued to be a major preoccupation of the Office since the Committee's twenty-eighth session.

12. The growing number and variety of refugee situations, greater facilities of international transportation and inadequate information in potential asylum countries regarding the background of asylum requests have tended to increase difficulties in the granting of asylum, particularly at borders, including seaports and international airports. In a number of situations, persons who have valid reasons for seeking asylum do not wish to go to a neighbouring country, which may have a régime similar to that of their country of origin or where they simply fear the geographical proximity of the latter. They therefore need to proceed to more distant countries, more often than not by air.

13. The authorities of distant countries, however, and particularly the subordinate authorities at border stations, including airports, are not necessarily familiar with the situation in the country of origin and the risk of not being accepted without valid documents and valid entry visas is indeed considerable. It is for this reason that the Executive Committee at its twenty-eighth session recommended that "The competent official (e.g., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments." This requirement, which may appear to be of a strictly technical nature, is in fact a cornerstone of the entire system of international protection of refugees. It cannot be sufficiently emphasized that the granting of asylum to refugees depends not only on the acceptance of international principles and international instruments, but also on precise and adequate administrative instructions to the border authorities.

14. As subordinate authorities at the border, including international airports, cannot be expected to be sufficiently informed of conditions prevailing in the approximately 150 States other than their own, it is essential that applications for entering the territory be referred to a higher authority, preferably "a single central authority", and that any measure such as rejection at the border or refoulement be carefully avoided. This was also recommended by the Executive Committee in the conclusions adopted at its twenty-eighth session.

15. In other cases, particularly in States which have not yet become parties to the Convention and Protocol, the reluctance to grant asylum seems to derive from a more fundamental reason, i.e. the fear of creating tensions with the State of origin of the applicant for asylum. It was precisely in order to allay such fears and to avoid such restrictive attitudes that the General Assembly, in the Declaration on Territorial Asylum adopted on 14 December 1967 recognized "that the grant of asylum ... is a peaceful and humanitarian act and that as such it cannot be regarded as unfriendly by any other State". This principle was accepted in almost identical terms and in legally binding form by the Assembly of Heads of State and Government of the Organization of African Unity in the Convention Governing the Specific Aspects of Refugee Problems in Africa adopted on 10 September 1969. It is legitimate, therefore, to contend that this principle - a corollary to the sovereign right of States to grant asylum - which has been embodied in two significant international instruments, has become a generally accepted principle of international law. This principle can be relied on by States to overcome any fears they may have regarding difficulties which could result from the granting of asylum.

16. The reluctance and even refusal to grant asylum may in certain circumstances also be related to the fear of possible economic and social consequences, particularly where large numbers of refugees are involved. These important implications of the granting of asylum were also not overlooked by the international community when elaborating the basic international legal instruments relating to refugees and asylum. The Preamble to the 1951 Convention, as the Committee is aware, contains the following consideration:

"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".

The Declaration on Territorial Asylum states in more concrete terms that:

"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". (Article II.2)

A similar statement in legally binding form also figures in the OAU Refugee Convention:

"Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum". (Article II.4)

The High Commissioner would like to point out in this connexion that his Office is at any time available to cooperate with Governments in respect of the granting of asylum to refugees or persons who could be refugees within the meaning of the UNHCR Statute as well as the Convention and Protocol.

17. As emphasized in earlier paragraphs, two major outstanding problems in regard to the international protection of refugees are the insufficient implementation of international legal instruments relating to refugees in Contracting States, and the non-accession to such instruments by a large number of other States. In addition to endeavouring to ensure the immediate protection of individual refugees or refugee groups by such means as are available in any given situation, the Office has always been and continues to be concerned by these two major negative aspects of its work in the field of international protection.

18. In this respect the primary action of the office must necessarily take the form of direct contacts with governmental authorities. It should not, however, be overlooked that the effective exercise of the international protection function is also dependent on the existence of a favourable climate of opinion among government officials, practising lawyers and interested legal circles. The Office has always encouraged such promotional efforts directed towards a wider knowledge and deeper understanding of the special problems facing refugees in the legal sphere. Increasing support is therefore, being given to a variety of activities such as lectures within the framework of academic institutions or professional associations, the holding of seminars and discussion groups and the publishing of articles on refugee law. Such efforts directed towards the dissemination of the principles of international protection of refugees - which is an inherent function of the Office - are gradually yielding positive results and the concept of "international refugee law" is gaining ever-increasing acceptance.

Conclusions

19. More progress is required towards a universal acceptance of the major international legal instruments concerning the protection of refugees, i.e. the 1951 Convention and the 1967 Protocol, as well as towards their actual implementation. The deterioration of internal conditions in a number of countries and the not necessarily unrelated emergence of new tensions between States are negative factors in the way of an improvement of this international protection of refugees. A systematic and sustained effort is, therefore, required on the part of each Government and of the international community as a whole directed more particularly towards the following specific objectives:

(a) A reaffirmation of the principle of international solidarity as the primary condition for a generous policy of asylum and more generally, for the effective implementation of international protection. The awareness of governments that respect for the fundamental rights of refugees represents the fulfilment of an important objective of the international community as a whole, will certainly contribute to the more effective recognition of these rights.

(b) A contribution by governments towards a strengthening of the legal framework of international protection. The fulfilment of this objective would require further accessions to international instruments relating to refugees, the withdrawal of reservations, and adoption on the national level of appropriate legislative and/or administrative implementing measures. For those States in which the fundamental rights of refugees are already substantially observed, measures of this kind would not represent any additional burden. The consequences of such measures would, however, go beyond their immediate effect, and by providing an encouragement to other States, they would help to strengthen the general framework of international protection.

(c) Encouragement should be given to all efforts undertaken to disseminate the principles of the international protection of refugees and to secure increasing recognition and understanding of international refugee law.

20. The High Commissioner is confident that he can continue to rely on the support of the Committee in his efforts to achieve these objectives.

1 Including two States which are parties to the Protocol only.