Note on International Protection (Submitted by the High Commissioner)

A/AC.96/508

Introduction

1. The principal developments in the field of International Protection for the period from 1 April 1973 to 31 March 1974 are given in the High Commissioner's Report to the General Assembly at its Twenty-eighth Session (document A/9012). Developments which have occurred since then are mentioned as appropriate in this Note, the main purpose of which is, however, to indicate certain more general and long-term trends and also to consider some special aspects of International Protection. Specific decisions affecting the status of refugees in a number of countries are summarized in Annex I.

Asylum

2. At its twenty-fourth session the Executive Committee urged that liberal and uniform asylum practices should be followed and that the principle of "non-refoulement" should be strictly applied. The High Commissioner has continued to pay special attention to this fundamental aspect of the protection of refugees. Refusal of admission at the frontier, rejection, expulsion, or any other measure which compels a refugee to return to, or remain in, the country where he fears persecution can have the most grave consequences for the refugee and his family and sometimes can make the difference between life and death. On a number of occasions the UNHCR Representative on the spot, the Director of the Protection Division and in some cases the High Commissioner himself have had to intervene with the authorities concerned. Whereas in acme instances remedial action could be taken, in others the refugee had already been refused admission or had been returned against his will to his country of origin.

3. In the past three years the principles relating to asylum and non-refoulement to the country of origin have been further strengthened through the adoption of legislative and administrative measures by several countries. These measures are invaluable, because they facilitate effective implementation by national authorities of the provisions of international instruments relating to refugee rights. The fact remains, however, that refugees in quest of asylum sometimes face major problems, at least in certain countries. In the case of several new and sizeable refugee problems, reception countries have evidenced a liberal admission policy, and it is important that a similar approach be adopted in respect of individual refugees.

4. The adoption of an international convention on territorial asylum might constitute a further step towards the implementation by all States of a liberal asylum policy. In accordance with the conclusions reached by the Executive Committee at its twenty-fourth session on this subject, the High Commissioner has actively pursued preparations for such a convention. Pursuant to a decision taken by the General Assembly at its Twenty-eighth Session, he is continuing his consultations with governments and will report the results to the Assembly at its Twenty-ninth Session with a view to the eventual convening of a Conference of Plenipotentiaries to consider the Draft Convention. Replies to the High Commissioner's request for their comments have been received from 90 States, including six Governments which replied that the matter was under consideration. Three Governments expressed doubts as to the need for a Convention on Territorial Asylum, as they consider the matter to be fully covered by existing international instruments, but the overwhelming majority of States, i.e. 75 out of 90, as at 15 September were in favour of holding a Conference of Plenipotentiaries to consider the Draft Convention. The High Commissioner very much hopes that a new milestone will be reached through the adoption of a legally binding instrument which would facilitate the solution of the perennial problem of refugees in quest of asylum.

5. Such an instrument would contribute to eliminating violations of the principles of asylum and non-refoulement, with sometimes tragic consequences for the refugees concerned, which it has been the sad duty of the High Commissioner to report to the General Assembly and the Executive Committee during recent years. The resulting human tragedies should serve as a deterrent to governments which may be tempted for alleged reasons of state not to respect a moral, if not legal, obligation and eventually to yield to requests for the return of refugees which they may receive from the government of the country of origin. In especially difficult circumstances, closer co-operation with UNHCR in the day-to-day practice of States would help to find appropriate and more humane solutions to the problems raised.

International instruments established for the benefit of refugees

6. Inasmuch as the Convention of 1951 on the Status of Refugees and the Protocol of 1967 constitute the fundamental legal framework of the international protection of refugees, their widest possible acceptance is of primary significance to the work of this Office. Efforts to obtain more accessions to them have therefore continued to occupy a central position in the work of UNHCR. During the last three years three States acceded to the 1951 Convention and ten States acceded to the 1967 Protocol, bringing the total number of States parties to these instruments to 65 and 58 respectively. One State withdrew the geographical limitation provided for by Article 1 of the 1951 Convention.

7. In spite of repeated appeals to the State members of the United Nations and the Specialized Agencies, the Convention and Protocol have not yet acquired the desired universal character. A great majority of States in certain regions have not yet acceded to the Convention and some States have maintained the geographical limitation provided for in its Article 1, which clearly runs counter to the universal character of the work for refugees. The failure of a large number of States in certain regions to accede to the Convention suggests the need for new devices and techniques to create a legal framework for the international protection of refugees where none exist at the present time. It might thus become necessary for UNHCR in some cases to explore the possibilities of concluding special agreements with States which are facing a new influx of refugees and are not parties to the Convention and Protocol.

8. With regard to the implementation of these two instruments it may be recalled that at its Nineteenth Session the Committee endorsed a proposal by the High Commissioner to address to States parties a questionnaire concerning the measures taken by them to implement their obligations under these instruments. In response to the questionnaire which was addressed to 63 States, 38 replies have been received. The purpose of the questionnaire was to help the Office to compare national practice with international standards. The replies indicate general conformity between the two. While UNHCR's authority to supervise the implementation of the Convention is by no means as extensive as that of ILO and UNESCO, the questionnaire and the replies received provide the Office with a valuable means of follow-up in seeking the co-operation of States in bridging gaps between international standards and national practice. This is a continuing task. In February reminders were sent to 17 Governments which had not yet replied to the questionnaire. The analysis of the replies received has been completed and a preliminary report on the 38 replies will be issued in due course.

9. A significant development was the coming into force on 20 June 1974 of the OAU Convention of 1969 Governing the Specific Aspects of Refugee Problems in Africa.

10. The OAU Convention constitutes a regional complement to the 1951 Convention and the 1967 Protocol and thus provides an additional basis for the protection of refugees in Africa. It is noteworthy in that it states, inter alia, that the granting of asylum is a peaceful and humanitarian act which should not be regarded as an unfriendly act by any Member State. This idea, it will be recalled, is reflected in the Preamble to the 1951 Convention where the contracting States express the wish that all States recognizing the social and humanitarian nature of the problem of refugees will do everything within their power to prevent the problem from becoming a cause of tension between States. It was also incorporated in the Preamble, to the United Nations Declaration on Territorial Asylum of 1967 which recognizes that the granting of asylum by a State to a person entitled to invoke Article 14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and cannot be regarded as unfriendly by any other State. The increasing recognition by States of the purely humanitarian character of the granting of asylum is of vital importance for refugees.

11. The Protocol of 12 June 1973 relating to Refugee Seamen has been opened for signature. The Protocol calls for the removal of the deadline established by Article 1 of the 1951 Convention. The following States have acceded to date: Sweden, the Netherlands, Australia, Denmark, Norway. The Protocol will come into force when three more countries accede to it.

Statelessness

12. Considering the close connexion there is between refuge problems and statelessness, this Office naturally favours measures preventing statelessness or mitigating its consequences. This is the more important since refugees are either de jure or de facto stateless persons. Furthermore, in some cases the deprivation of nationality is closely bound up with the emergence of a new refugee problem.

13. During the past three years five more States have acceded to the 1954 Convention relating to the Status of Stateless Persons, thus bringing to 27 the total number of parties to this instrument.

14. The 1961 Convention on the reduction of statelessness will contribute towards eliminating the perpetuation of refugee status in States which are parties to this Convention. Article 18 provides that the Convention will enter into force two years after the date of the deposit of the sixth instrument of ratification or accession. Australia, the sixth ratifying State, deposited its instrument of ratification on 13 December 1973 and consequently the Convention will enter into force in December 1975. This is a welcome development, as this Convention provides for the acquisition by operation of law of the nationality of the contracting State by children born of stateless parents in its territory. This is especially important where nationality is based on jus sanguinis, i.e. where a person's nationality is based on that of his parents, and is not founded on jus soli, i.e. does not depend on a person's place of birth.

15. Following Australia's ratification and in accordance with the provisions of Article 11 and paragraph 2 of Article 20 of the Convention, consultations were undertaken with the United Nations Secretariat and Contracting States with a view to bringing to the attention of the General Assembly at its Twenty-ninth Session the question of the establishment, within the framework of the United Nations, of a body to which a person claiming the benefit of the 1961 Convention may apply for assistance in presenting his claiming to the appropriate authority.

16. Considering the fact that a large number of refugees who are the concern of UNHCR are stateless persons, there was agreement among those consulted that the functions of the body envisaged in Article 11 should be entrusted to UNHCR.

Individual cases

17. The difficulties experienced by individual refugees to which reference has already been made in previous reports are growing into a major problem. In view of the great number of cases involved this problem is resulting in increasing demands on UNHCR both from a quantitative and from a qualitative point of view. The tragic consequences of the refusal of admission and of expulsion to the country of origin or country of habitual residence have been discussed in the preceding section concerning asylum. These, however, are not the only problems facing the individual refugees. Just to cite a few examples, in one known instance, refugees were taken back against their will from their country of asylum to their country of origin by emissaries of the latter. In some countries individual asylum seekers who are known to fulfil the criteria of refugees according to the Convention and Protocol were admitted in transit only. As soon as UNHCR is informed of their presence steps are taken to seek resettlement opportunities for the refugees concerned. In some cases such opportunities are found fairly quickly, in others a considerable period of time elapses. In certain countries the presence of refugees who are unable to move on at short notice is regarded as unlawful and they may, as a result, be subjected to measures of constraint and even detention involving particular hardship. Such persons have an urgent need to have their situation regularized in their country of asylum - if only on humanitarian grounds - until such time as they are able to gain lawful admission to another country. There is yet another domain where individual cases suffer particular hardship; it is that of family reunion. The Office has continued to take the closest interest, in this matter in keeping with the Executive Committee's own recommendations and with generally recognized human practice as expressed in legal texts adopted by the international community. There are many instances where refugees remain separated from their close family members for several years. In addition to the human suffering resulting from such a separation, obvious economic, social and psychological problems, arise when minor children or aged parents are deprived of family support. In his report to the General Assembly, at its Twenty-ninth Session, the High Commissioner has again made a plea to the effect that Governments should support his efforts to promote the reunion of separated refugee families.

Protection of refugees in Chile

18. Following the events which occurred in Chile in September 1973, the High Commissioner addressed an appeal to the Chilean Government that refugees in that country be adequately protected and on no account expelled to their country of origin. Assurances were subsequently received from the Government to the effect that the provisions of the 1951 Convention and of the 1967 Protocol, to which Chile is a party, would be fully respected. The Executive Committee at its Twenty-fourth Session was informed of these developments and agreed that a telegram be addressed by its Chairman to the Government conveying the Committee's hope that the Government would promote rapid solutions for the refugees, taking fully into account their need for protection and assistance. In a letter dated 19 October the Minister for Foreign Affairs of Chile replied in the affirmative.¹ Meanwhile the authorities agreed to the establishment of "safe havens", run by a National Committee which included representatives of the churches, where refugees who wished to leave the country could receive the necessary assistance and protection pending their departure. From there they could emigrate to a number of countries of second asylum which had generously responded to the High Commissioner's appeal for help. The idea of a sanctuary where persons seek asylum is of course not new in history, but the establishment of "safe-havens" which was also applied to non-citizen Asians under expulsion order in Uganda before their departure from that country is an entirely novel device in the practice and experience of international protection as distinct from diplomatic asylum which is based on the inviolability of the diplomatic premises or rests on the basis of reciprocity and the consent of the host State.

Conclusions

19. As has been stressed on many occasions, international protection is the essence of the High Commissioner's functions. It is the first of his duties enumerated in the Statute. During the period under review it is encouraging to note that the legal framework established by the international community to protect refugees has been further developed.

20. However, in the legal field, as in other fields, we have to be aware that not only are legal texts and words of vital importance, but a continuing and strict observance of the fundamental rights of refugees is even more important. It may be tempting for governments to give priority to preoccupations of a political or security nature, with the result that refugees are unjustly victimized by an inflexible application of domestic law, particularly with regard to admission for residence and access to employment. On many occasions the letter and the spirit of the 1951 Convention are ignored or, what is worse, broken deliberately or otherwise.

21. With all the goodwill in the world, the Office is powerless in its humanitarian efforts concerning, the protection of refugees without the human understanding of the plight of these unfortunate uprooted people by the international community. Unless States are willing to place the relevant facilities at our disposal, or so to speak "to give us the tools", we will invariably come up against a blank wall in our protection endeavours and thereby find ourselves unable to bring a much needed spark of light or hope of happiness into the upset lives of these unfortunate people.

22. The attention of public opinion should therefore be focused once again on the overriding importance of international protection for refugees and governments should be made aware of the purely humanitarian character of the granting of asylum and of the fact that it does not involve any act of hostility directed against the interest of other States.

ANNEX

PROGRESS IN THE FIELD OF INTERNATIONAL PROTECTION BY COUNTRY FROM 1 JULY 1973 TO 30 JUNE 1974

AFRICA (WEST AND CENTRAL)

Burundi

1. The Government has so far granted naturalization to more than 100 destitute refugees, in accordance with Article 12 of the Nationality Law. The fee of $ 250 per person has been waived.

2. The Government has confirmed that refugees attending secondary schools are to be exempt from payment of tuition fees.

3. Negotiations are being held with the Government with a view to the waiving of naturalization taxes for all refugees.

Congo

4. Convention Travel Documents and Identity Cards have been issued to refugees whose status has been certified by the local UNDP Resident Representative.

Gabon

5. Gabon acceded to the 1967 Protocol relating to the Status of Refugees on 28 August 1973.

6. A positive reply regarding the Draft Convention on Territorial Asylum was sent by the Government.

Gambia

7. Gambia has replied to the UNHCR Questionnaire on the implementation of the 1951 Convention and 1967 Protocol.

Rwanda

8. The Government has accepted the principle of issuing identity cards to refugees. UNHCR will help with the necessary administrative costs.

9. Accession to the 1951 Convention and 1967 Protocol is under active consideration by the Government. In the meantime the authorities are issuing refugees with "laissez-passer tenant lieu de titre de voyage" with a return clause covering the period for which the LP is valid.

Senegal

10. An Eligibility Commission was established pursuant to Article 3 of Law No. 68/27 of 5 August 1968 and Decree No. 72/939 of 25 July 1972. A further Decree relating to the working of the Commission, amended to take account of UNHCR's proposals, will be published in the near future in the Official Gazette.

11. Leaflets outlining the purpose and limitations of Convention Travel Documents have been distributed to refugees applying for such documents.

Togo

12. Consideration is being given by the competent authorities to the establishment of an Eligibility Commission similar to that operating in Senegal, and with the participation of the UNDP Resident Representative acting as observer on behalf of UNHCR.

Upper Volta

13. In July 1973 Upper Volta acceded to the 1951 Convention and the 1967 Protocol. However, the instruments of ratification have not yet been deposited. Approaches have been made to the Government in this connexion.

Zaire

14. Identity cards are being issued to refugees in the Kivu Province, with UNHCR financial assistance towards the cost of printing the cards and other related administrative expenses.

15. Burundi refugees studying at the University of Zaire are accorded the same treatment as nationals with respect to tuition and registration costs.

16. The Government of Zaire has informed this Office that the restrictive measures adopted in November 1973 with regard to wage-earning employment of foreigners do not apply to refugees.

AFRICA (EAST AND SOUTHERN)

Ethiopia

17. Ethiopia ratified the OAU Convention on 30 October 1973.

18. All refugees have been issued with identity cards free of charge. UNHCR gave financial assistance towards the costs of printing and other administrative expenses.

19. The Ministry of National Community Development and Social Work has decided to grant refugees the same treatment as nationals in the field of wage-earning employment. Refugees are also allowed to be share-holders in small scale enterprises.

20. A Draft Law regarding the implementation of the 1951 Convention and 1967 Protocol relating to the Status of Refugees is under consideration by the Government.

Kenya

21. Tuition fees in primary school have been waived in respect of refugee children.

Sudan

22. The Sudan acceded to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees on 5 February 1974.

23. A Bill outlining the eligibility procedures to be followed in the Sudan is being examined.

Tanzania

24. Regognized refugees in Tanzania receive the same treatment as nationals with regard to wage-earning employment, and obtain a work permit without payment of the usual fee.

Zambia

25. Zambia ratified the OAU Convention on 14 August 1973.

ASIA

Japan

26. The Government of Japan is in favour of the convening of a Conference of Plenipotentiaries on the Draft Convention on Territorial Asylum.

EUROPE

Austria

27. In February 1974 the Austrian Council of Ministers approved the Austro-French Agreement relating to the transfer of responsibility for refugees who move from either country and establish themselves in the other. Under the terms of this Agreement the takeover will occur after two years' residence in the country of second asylum.

Denmark

28. Denmark ratified the Protocol to the Agreement relating to Refugee Seamen on 24 January 1974.

29. A favourable reply was received from the Government on the Draft Convention on Territorial Asylum.

France

30. The Government has replied favourably to the High Commissioner's request relating to the adoption of a Convention on Territorial Asylum.

Liechtenstein

31. The Government has replied favourably to the High Commissioner's request relating to the adoption of a Convention on Territorial Asylum.

Netherlands

32. The Government has replied favourably to the High Commissioner's request relating to the adoption of a Convention on Territorial Asylum.

33. On 1 March 1974 a new procedure for asylum seekers became effective.

Norway

34. The Government of Norway ratified the Protocol to the Agreement relating to Refugee Seamen on 12 February 1974; the number of parties to this instrument now stands at 5; three more ratifications are necessary for its entry into force.

Switzerland

35. During a session of the Swiss Parliament on 11 December 1973, it was moved that the Federal Council should submit a Bill which would give a clear, legal basis for the granting of the right of asylum in Switzerland. The motion was approved and it is believed that this Law will be ready for presentation in 1975.

36. The Swiss Federal Council has decided that refugee doctors may sit for the Federal examinations, provided their refugee status was recognized in Switzerland before 1 January 1974.

United Kingdom

37. The United Kingdom has replied to the UNHCR Questionnaire on the implementation of the 1951 Convention on the 1967 Protocol.

MIDDLE EAST AND NORTH AFRICA

Morocco

38. The Government of Morocco informed UNHCR that the decrees of "Marocanisation" do not affect refugees as defined in the 1951 Convention and the 1967 Protocol.

AMERICAS, IBERIA AND OCEANIA

North America

Canada

39. The Government has sent a favourable reply regarding the Draft Convention on Territorial Asylum.

Mexico

40. Mexico has made known its support of the proposal to convene a Conference of Plenipotentiaries to consider the Draft Convention on Territorial Asylum.

United States

41. As from 1 August 1973 Convention Travel Documents were issued to refugees by the United States of America authorities.

Central America

Panama

42. The Government is in favour of strengthening the law relating to territorial asylum through the adoption of a Convention on Territorial Asylum.

South America

Argentina

43. The Government has adopted a Decree providing for the issuance of 1951 Convention Travel Documents to refugees.

44. By Decree No. 87 dated 11 January 1974 the Argentine authorities decided to issue residence permits to all foreigners residing de facto in Argentina. The provisions of this Decree are intended to regularize the situation of a large number of foreigners, (some of whom qualify for refugee status), who possess no valid papers or proper work permits.

1 cf. Document A/AC.96/497 para 42 (7) and Document A/AC.96/500.