Note on International Protection (Submitted by the High Commissioner)

A/AC.96/593

1. In his report to the thirty-sixth session of the General Assembly submitted through the Economic and Social Council (A/36/12), the High Commissioner traced the principal developments that had occurred in the field of international protection during the period 1 April 1980 to 31 March 1981. In the introduction to that report, while noting several encouraging trends - particularly with regard to the strengthening of the principle of non-refoulement and the granting of asylum - the High Commissioner also drew attention to numerous unresolved problems which still exist in the field of international protection and which require the urgent attention of the international community.

2. In the following paragraphs attention will be drawn to certain of the more salient issues in the field of international protection which have arisen since the thirty-first session of the Executive Committee.

International refugee instruments

3. The steady increase in the number of States parties to the basic international refugee instruments has continued. Since the thirty-first session of the Executive Committee there have been seven further accessions, bringing the total number of States parties to the United Nations Refugee Convention and/or 1967 Protocol to 90. In addition, several other countries have enacted the necessary legislative authority in preparation for their accession in the near future. The latest accessions are of special significance in so far as they include countries in an area having serious refugee problems and hitherto wholly unrepresented among the States Parties to either the United Nations Refugee Convention or the 1967 Protocol. It is to be hoped that the current momentum in accessions by States to the basic refugee instruments can be maintained so that they will, in due course, be universally applied.

Developments in regard to asylum and non-refoulement

4. In spite of increasing demands for asylum in various parts of the world, States have, as hitherto, granted admission to individual or large groups of asylum seekers. The Office continues to stress the importance of refugees being granted durable asylum with the least possible delay. On the other hand, it is recognized that in certain situations, notably those involving large-scale influxes, States may only be able to admit asylum seekers on a temporary basis until a durable solution can be found for them. Where this is the case, it is nevertheless imperative to ensure that the persons concerned are accorded certain basic minimum standards of treatment. A number of such standards were identified by the Group of Experts on Temporary Refuge which was convened in April 1981 by the High Commissioner at the request of the Executive Committee at its thirty-first session. The report of this Group of Experts (EC/SCP/16) has been submitted to the Executive Committee for its consideration.

5. The legislation of a number of countries relating to the admission of asylum seekers provides for the granting of asylum on humanitarian grounds. In such cases, the person concerned, while permitted to remain in the State's territory, is usually not granted the full legal status provided for in the 1951 United Nations Refugee Convention and the 1967 Protocol. The possibility of granting asylum on humanitarian grounds is of value in meeting the needs of persons who may not fulfil the criteria of refugee status but who may nevertheless have valid reasons for remaining outside their country of origin at least until the situation there has been clarified. It is, however, important that the possibility of granting asylum an humanitarian grounds should not - as is the case in a number of countries - result in a lesser status being accorded to persons entitled to be considered as refugees under the international instruments.

6. In regard to the principle of non-refoulement, incidents involving the forcible return of refugees and asylum seekers, as detailed in the High Commissioner's report to the General Assembly, have continued to occur. These measures indicate the need for constant vigilance on the part of the Office. In spite of such recurrent violations, however, the High Commissioner believes that the fundamental principle of non-refoulement is increasingly reflected in the practice of States. Through its constant reaffirmation in various fora, and more especially the General Assembly and the Executive Committee, the principle itself has been progressively strengthened and is thus acquiring an increasingly imperative character.

Procedures for determination of refugee status

7. Since the thirty-first session of the Executive Committee, further States have adopted procedures for the determination of refugee status. Description if these and other procedures already established are contained in document A/AC.96/INF.152/Rev.3. The adoption of determination procedures is also under active consideration in a number of other States.

8. In certain countries, measures have been adopted to streamline or improve existing procedures. Such measures have, inter alia, been aimed at preventing the abuse of asylum and determination procedures by persons not having a genuine claim to refugee status. While fully recognizing the need to exclude abusive applications, it is, of course, also important to ensure that the fundamental interests of the bona fide asylum seeker are fully safeguarded.

9. Procedures for the determination of refugee status presuppose an examination of applications on a case-by-case basis. Such individual examination may not however be feasible in situations of large-scale influx due to the number of persons involved. In such situations, it may be necessary to have recourse to alternative arrangements, e.g., prima facie group determination base on an objective assessment of the reasons for flight, with the possibility for persons excluded from such determination to have their case considered on an individual basis.

10. The question of the determination of refugee status in situations of large-scale influx was the subject of special consideration at the 1979 Arusha Conference on the Situation of Refugees in Africa. The Conference considered that the application of procedures established for individual asylum applications "might be impracticable in the case of large-scale movements of asylum seekers in Africa" and requested the Office of the United Nations High Commissioner for Refugees" to undertake a comprehensive in-depth study of the type of procedures or special arrangements envisaged and, if appropriate, to co-operate in their implementation". Pursuant to this recommendation, the Office has submitted to the OAU for consideration by its member States an analytical note identifying the essential elements which a procedure or arrangement for the determination. of refugee status in cases of large-scale influx in African countries should incorporate.

Physical safety of refugees and asylum seekers

11. Violations of the physical safety of refugees and asylum seekers, in regard to which the Executive Committee at its thirty-first session expressed serious concern, remain a fundamental preoccupation of the High Commissioner. In his report to the General Assembly, the High Commissioner details the major instances of criminal attacks on asylum seekers and refugees, which have occurred during the period covered. Since the preparation of that report there have been further such violations which in certain areas have increased in scale and seriousness.

12. In recent months, the problem of pirate attacks on asylum seekers at sea has again assumed alarming proportions, in spite of the very real efforts by the Governments directly concerned to take preventative action and to punish those responsible. Pursuant to the conclusions on the subject adopted by the Executive Committee at its thirty-first session, the office has intensified its activities with a view to the protection of asylum seekers in boats and for this purpose is closely co-operating with the Government in the area. The Office is also co-operating with other interested organizations in order to identify ways in which the international community can more effectively react to this grave problem of criminal attacks on asylum seekers at sea,

13. It should be recalled that piracy is considered, under international law, to be a crime against mankind for the suppression of which all States are responsible. The need for international co-operation in the suppression of piracy is specifically mentioned in article 14 of the 1958 Convention on the High Seas.

14. In another part of the world, the lives of innocent refugees continue to be threatened by recurrent bombardments of camps where they are accommodated and by incursions across the border by neighbouring security forces. These criminal attacks are a cause of most profound concern to UNHCR. It is also disturbing to note that in yet another part of the world incidents involving the abduction and disappearance of refugees, which had in previous years diminished, were once again on the increase.

15. The picture which emerges shows a deteriorating trend in the physical safety of refugees and once again calls for the serious attention of the international community. The High Commissioner hopes that, for its part, the Executive Committee will continue to support his efforts to protect asylum seekers and refugees who, in various parts of the world, are victims of criminal attacks and violations of their personal safety.

Categories of persons under UNHCR protection

16. The Office has been giving increasing attention to the categories of persons to whom it may extend international protection. In this respect the Office is guided in the first instance by the definition of the term "refugee" figuring in the international refugee instruments and in the UNHCR Statute. In the African region, this definition has been widened by the OAU Convention governing the Specific Aspects of the Refugee Problem in Africa to include a person who, "owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality."

17. Almost a decade after the adoption of this wider refugee definition, the 1979 Arusha Conference on the Situation of Refugees in Africa recommended that the "1969 OAU Refugee Convention, the regional complement in Africa of the 1951 Convention relating to the Status of Refugees, be applied by the United Nations and all its organs as well as non-governmental organizations in dealing with refugee problems in Africa ..." This recommendation, was subsequently endorsed by the thirty-fourth session of the General Assembly,¹ with the result that, in Africa, the competence of the High Commissioner to grant international protection now formally extends to persons falling within this wider definition. Persons whose situation is covered by the extended OAU refugee definition are, at the same time, persons in refugee-like situations who have been displaced outside their country of origin and whom the High Commissioner has been called upon to assist and to protect by recent resolutions of the General Assembly.

18. The widening of the refugee definition has enabled the Office to make an objective assessment of refugee situations and to extend protection to groups of persons who might not be able to invoke a well-founded fear of persecution according to traditional criteria. These significant developments have enhanced the Office's protection response in more recent refugee situations involving a large-scale influx.

Developments at the regional level

19. The activities of the High Commissioner in the field of international protection continue to be supported by action at the regional level. Such action may be intergovernmental, involving the adoption of standard-setting instruments by intergovernmental bodies. It may also relate more generally to the promotion of refugee law which has traditionally fallen within the sphere of non-governmental organizations.

20. With regard to intergovernmental action, the institution of asylum has been further strengthened in Africa by the incorporation of an article in the recently elaborated African Charter of Human Rights and Peoples which affirms the right of the individual, when persecuted, to seek and to obtain asylum. In Latin America, an important guarantee against the forcible return of refugees and asylum seekers is contained in the recently adopted Inter-American Convention on Extradition which incorporates a provision reflecting the principle of non-refoulement.

21. In Europe, a valuable addition to the already extensive framework of legal instruments adopted under the auspices of the Council of Europe is that of the European Agreement on Transfer of Responsibility which entered into force on 2 December 1980. In continuation of its well-established tradition of examining questions relating to the legal situation of refugees, the Council of Europe has recently completed work on a recommendation on the harmonization of procedures for the determination of refugee status which has been submitted for final approval by the Committee of Ministers. The High Commissioner is most appreciative of the close and fruitful co-operation that exists between the Office and the Council of Europe and for the valuable initiatives which the Council continues to undertake in the field of international protection.

22. The High Commissioner has also greatly valued the continuing close relations which now exist between UNHCR and the OAU and between UNHCR and the Arab League, which permit a constructive examination of the problems relating to the protection of refugees in these respective regions. He also welcomes the development of closer co-operation with the Organization of American States and the Islamic Conference and looks forward to continuing dialogue with these organizations on matters of mutual interest.

23. Action supportive of the High Commissioner's international protection activities has also been taken in the non-governmental sphere. As regards Asia, the conclusions of the Manila Round Table of Asian Experts² were considered by a Working Group of participants in the Round Table. Basing itself on the Manila Declaration an the International Protection of Refugees and Displaced Persons, the Working Group agreed on a number of principles which, it was considered should apply to the protection of refugees in Asia. The Working Group also stressed the importance of a contribution by Asian States both in the region and on the universal level to further the development of refugee law. In Latin America, a Colloquium on Asylum and International Protection of Refugees, held under the auspices of the Mexican Ministry of Foreign Affairs in collaboration with UNHCR in May 1981 examined the Latin American institution of asylum in relation to the universal refugee and adopted a series of conclusions which will undoubtedly represent an important landmark in the further development of refugee law in this region.

Development with regard to dissemination of principles of protection and refugee law

24. At previous sessions of the Executive Committee - notably at its twenty-ninth, thirtieth and thirty-first sessions - the importance of promoting a wider knowledge of refugee law was recognized. Activities in regard to the dissemination of the principles of protection have been carried out by the Office on an increasing scale. As has been outlined above, these have been particularly successful at the non-governmental level in those regions where the principles of international protection have until now not been fully elaborated. In addition to the regional activities at the non-governmental level the Office has continued to encourage the development of refugee law as a separate branch of academic study. This matter will be given special consideration by a Symposium on the Protection, Dissemination and Teaching of the Fundamental Human Rights of Refugees which is due to be held from 7 to 12 December 1981 in Tokyo under the joint auspices of UNESCO, UNHCR and the United Nations University.

25. A fuller description of other activities in the field of promotion and dissemination of the principles of international protection is contained in the High Commissioner's report to the General Assembly.

Conclusions

26. The period since the Executive Committee's thirty-first session has witnessed a number of encouraging developments in the field of international protection.

27. The continuing momentum of accessions to the international refugee instruments - including the accession by certain States in heretofore unrepresented areas of the world - has been of particular significance. Of equal importance has been the clear recognition that persons to whom only temporary asylum can be granted should be treated according to basic minimum standards.

28. As concerns developments of a continuing nature, mention should be made of the constant reaffirmation of the principle of non-refoulement, the establishment of further procedures for determining refugee status and a growing climate of opinion favourable to the exercise of the High Commissioner's protection function.

29. The period has, however, also witnessed recurrent breaches of the principle of non-refoulement and continuing violations of the physical safety of refugees in certain areas. This remains a matter of the utmost concern and the High Commissioner trusts that he can rely on the support of the Executive Committee in seeking to resolve these grave humanitarian problems.

30. Finally, the High Commissioner wishes to express his appreciation for the support given to him by the Executive Committee - particularly since the establishment of the Sub-Committee of the Whole on International Protection - in his efforts to extend international protection to refugees.

1 Resolution 34/61 of 29 November 1979

2 Submitted to the Executive committee at its thirty-first session as A/AC.96/IMF.162.