Note on International Protection (Submitted by the High Commissioner)

A/AC.96/433

Introduction

1. This note is submitted in accordance with the wish expressed by the Executive Committee that the question of protection be discussed by the Committee each year. At its twentieth session, the Committee reaffirmed the importance it attached to the international protection of refugees as the basic function of the High Commissioner's Office. It further stressed the need for the High Commissioner to continue his efforts in this respect, especially in areas where new refugee problems have arisen without, however, weakening protection elsewhere (A/AC.96/422, paragraph 70). The High Commissioner's annual report to the Economic and Social Council at its 49th session and to the General Assembly at its 25th session describes the principal developments in the field of international protection during the period 10 April 1969-31 March 1970. The purpose of the present note is to highlight same of these developments and to draw attention to certain matters in respect of which the High Commissioner feels further efforts are required.

Asylum and non-refoulement

2. The High Commissioner continues to devote particular attention to asylum and non-refoulement which are the cornerstones of his international protection activities. A noteworthy development in this field has been the inclusion in the Convention Governing the Specific Aspects of the Problems of Refugees in Africa, adopted under the auspices of the Organization of African Unity in September 1969, of an article on asylum reproducing the principles of the United Nations Declaration on Territorial Asylum, in particular those concerning non-refoulement and the fact that the granting of asylum is a peaceful and humanitarian act, which shall not be regarded as unfriendly by any State. Of similar significance is the incorporation of the principle of non-refoulement in the Inter-American Convention on Human Rights adopted in November 1969.

3. On the national level, the recent United Kingdom Immigration Appeals Act grants important rights of appeal to refugees against the refusal of asylum at the point of entry, or in cases of proposed deportation.

4. These developments, which serve to strengthen the effectiveness of the internationally recognized principles relating to asylum, are greatly to be welcomed.

5. States in different parts of the world have continued to practise a liberal asylum policy. It is, however, a matter of grave concern that some cases of refoulement have occurred during the period under review. In some countries, furthermore, there has been a reluctance to regularize the situation of refugees entering the country and a tendency to subject them to detention or other restrictive measures, treating them in this matter as ordinary aliens, in disregard of the fact that refugees do not enjoy the protection of their former home country. It is very much hoped that the special situation of the refugee and his need to obtain asylum and have his situation speedily regularized will be taken fully into account and that consideration will be given to the fundamental principles expressed in the United Nations Declaration on Territorial Asylum and in the OAU Refugee Convention of 1969.

Determination of refugee status

6. In various countries in Europe and elsewhere, where formal eligibility procedures exist, the High Commissioner's Office has continued to co-operate with the competent authorities in determining refugee status under the 1951 Convention and the 1967 Protocol. In other countries parties to these instruments, the need for establishing a procedure has been recognized. Botswana and Zambia have recently instituted one; in the Democratic Republic of the Congo and Senegal procedures are in the course of elaboration and in Canada and the United States of America, the question is being examined by the competent authorities. Situations frequently arise however where, due to the increasing uncertainty and complexity of political conditions, the basic definitions of the term "refugee" are difficult to apply. This calls for a more flexible approach than in the past. In certain cases governments have adopted the solution of permitting potential asylum seekers to remain in their territory without applying for refugee status so as to give them the necessary time to form a clearer picture of conditions in their country of origin. The High Commissioner has greatly welcomed this approach, which is well adapted to meet the particular humanitarian problems involved.

Intergovernmental instruments relating to the status of refugees - Important developments

7. Since the twentieth session, further States have acceded to the 1951 Convention and the 1967 Protocol which define the basic minimum standards for the treatment of refugees. Ethiopia and Paraguay, have acceded to the Convention, bringing the total number of parties to 59 and eight States (The Congo (People's Republic of), Dahomey, Ethiopia, Federal Republic of Germany, Ivory Coast, Niger, Paraguay and Togo) have acceded to the Protocol, bringing the total number of parties to 42. Application of these two instruments has also been extended to the Bahamas Islands. Sweden has withdrawn its reservation to article 7, paragraph 2 of the 1951 Convention. It is hoped that further States, which have not yet acceded, including some States members of the Executive Committee, will give favourable consideration to becoming parties to the 1951 Convention and 1967 Protocol.

8. The 1951 Convention and the 1967 Protocol provide the framework for the granting of a satisfactory legal status to refugees in their country of asylum. In order to be fully effective, however, the provisions of these instruments have to be reflected in appropriate legislative or administrative measures adopted on the national level. In States which have already been parties to these instruments for a number of years, the necessary implementing measures are in most cases already in force. States which have only recently acceded may still require time to formulate appropriate measures in the light of their individual legislative and administrative infrastructure, which, in some cases is itself in the process of development. While having full understanding for the difficulties that may exist, the High Commissioner nevertheless hopes that some progress will be made, and considers that the promotion of effective implementation measures will constitute one of the principal tasks of international protection during the next few years.

9. At its twentieth session, the Committee's attention was drawn to the standard questionnaire which the High Commissioner proposed to address to governments, dealing with important matters with regard to the implementation of the terms of the 1951 Convention and 1967 Protocol. Completed questionnaires have already been received from some governments and others have indicated that replies will be submitted in due course. It would be of assistance if all replies could be received during the coming twelve months so as to enable the Office to give the Executive Committee, at its 22nd session, more comprehensive data on the implementation of the 1951 Convention and 1967 Protocol.

10. A major development in the protection of refugees through intergovernmental instruments was the adoption of the Convention Governing the Specific Aspects of the Problems of Refugees in Africa by the Assembly of Heads of States and Governments of the Organization of African Unity on 10 September 1969. This Convention constitutes the effective regional complement in Africa to the 1951 Convention and the 1967 Protocol. It contains important provisions for regulating the situation of refugees within the African context in regard to matters, such as asylum, the prohibition of subversive activities by refugees, non-discrimination and repatriation. In the article relating to repatriation, its essentially voluntary character is reaffirmed and, as indicated above, the article on asylum is of special significance. The Convention has so far been ratified by one African State.

11. At its twentieth session, the Committee welcomed the initiative taken by the Government of the Netherlands to widen the scope of the 1957 Agreement relating to Refugee Seamen and to bring it into line with the 1967 Protocol. The High Commissioner has been informed by the Government of the Netherlands that of the sixteen States parties to the 1957 Agreement eight have so far given a positive response.

Acquisition of a new nationality by refugees

12. At its twentieth session, the Committee noted the initiative recently taken with regard to the acquisition freely decided by refugees, of the nationality of their country of residence through naturalization once voluntary repatriation no longer constituted a solution and hoped that positive measures would continue to be taken in this context (A/AC.96/422, paragraph 70).

13. A significant development in this field has been the recent action taken by the Council of Europe with regard to European refugees residing in countries members of the Council. The Committee of Ministers considering that the acquisition by refugees of the nationality of their country of residence would effectively contribute to solving the problems raised by the perpetuation of their present status, endorsed in its resolution no. (70) 2 a recommendation by the Consultative Assembly (no.564) on the acquisition of nationality through naturalization and marriage, and on its acquisition by children through the accession to, and liberal implementation of, the United Nations Convention of 1961 on the reduction of statelessness by Governments. The Consultative Assembly furthermore adopted a resolution (416) in which it expressed the hope that the High Commissioner would pursue his efforts in informing non-governmental organizations and the refugees themselves in the member States of the Council of Europe of the opportunities open to them to acquire the nationality of their country of residence as well as of the procedures in force.

14. The acquisition by refugees upon their request of the nationality of their country of residence through naturalization is receiving the fullest attention of UNHCR and it is gratifying to note that some governments have liberalized their legislation in this respect while figures for the naturalization of refugees in various European countries during the last few years have shown an encouraging trend. The adoption of improved legal provisions is bound to take some time. Meanwhile, the governments concerned might explore the possibility of further liberalizing their practice in respect of the naturalization of those refugees who already fulfil the necessary legal criteria to this end.

15. In order to follow up the initiative of the Council of Europe and to ensure that the fullest benefit is derived from measures by governments to facilitate the naturalization of refugees, UNHCR has recently sought the co-operation of the International Council of Voluntary Agencies. It is of course important that, through the channel of the agencies, refugees are adequately informed of the advantages of naturalization and of the procedures to be followed.

16. In the principal overseas countries of immigration, the question of naturalization poses no particular problem and refugees can normally acquire the nationality of their new home country after a short period of residence. In countries outside Europe where new refugee situations have arisen, the question of naturalization of refugees has already been given some thought and the extent to which it can be regarded as an appropriate solution should be further explored.

17. In order to avoid the perpetuation of refugee status into a second or third generation, special consideration should be given to the possibility of ensuring that refugee children acquire the nationality of their country of birth. To this end the High Commissioner trusts that further States will accede to the 1961 Convention on the Reduction of Statelessness which has not yet come into force due to the absence of the required minimum number of accessions.

Repatriation

18. Under the terms of the Statute, voluntary repatriation is one of the main solutions to refugee problems and its promotion constitutes an important task of UNHCR. The High Commissioner therefore welcomes any measures taken by States to remove difficulties that may stand in the way of the return of refugees to their home countries. Such measures may be of a purely technical nature, such as the granting of re-entry permits and transit visas, or meeting the cost of transport. They may also be of a more fundamental character, such as ensuring that refugees are adequately informed about conditions in their home countries and the possibilities of resuming a normal life there. Within the African context, efforts have been made by governments to meet these difficulties by the conclusion of a number of bilateral repatriation agreements. The High Commissioner welcomes such agreements, provided of course that they are in accordance with the international instruments for the protection of refugees and accompanied by suitable arrangements to establish the voluntary character of the repatriation of each individual, and to ensure that the position of persons not wishing to return is not prejudiced in any way.

Family reunion

19. The reunion of refugee families in their country of asylum is of particular concern to the High Commissioner, in view of the great hardship and suffering to which the separation of families may lead. Such separation inevitably results in unsatisfactory lives for both parts of the family; it may prevent the integration of refugees in their country of asylum, and may also give rise to social problems in the country of origin. The unity of the family is of course one of the fundamental principles proclaimed by the United Nations. The final Act of the Conference which adopted the 1951 Convention also contains a recommendation calling upon Governments to protect the refugee's family, especially with a view to ensuring "that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country". The High Commissioner very much hopes that, in view of the sometimes tragic human problems involved; countries of origin will give favourable consideration to the granting of exit permits to enable spouses, minor children or aged parents to join the head of the family abroad.