Colloquium on the legal aspects of refugee problems (Note by the High Commissioner)

A/AC.96/INF.40

A "Colloquium on the Legal Aspects of Refugee Problems", organized by the Carnegie Endowment for International Peace, with the support of the Swiss Government, was held in Bellagio, Como, Italy, from 21 to 28 April 1965. By courtesy of the Rockefeller Foundation, the Colloquium could be held at the Villa Serbelloni.

The Colloquium considered inter alia the present limitation of the personal scope of the 1951 Convention and the possible measures whereby the Convention might be liberalized and adapted to new refugee situations.

In view of the particular interest which the Executive Committee is taking in this matter, a copy of the report of the Colloquium is herewith submitted to the Committee for its information. The High Commissioner hopes that the Committee may be able to revert to this subject at one of its future sessions.

Report of the Colloquium on Legal Aspects of Refugee Problems held in Bellagio 21-28 April 1965

1. The Carnegie Endowment for International Peace in consultation with the United Nations High Commissioner for Refugees sponsored a Colloquium of legal experts to consider the possibility of developing international law relating to refugees. The meeting was held at the Villa Serbelloni in Bellagio from 21-28 April 1965. A list of participants is appended to this report. - Annex I.

2. In view of the time which has elapsed since the adoption of the basic legal instruments relating to the status of refugees, it was felt necessary that there should be a re-examination of refugee problems in their legal aspects. In particular, it was deemed desirable to consider adapting the Convention relating to the Status of Refugees of 1951 to meet new refugee situations which have arisen, and thereby to overcome the increasing discrepancy between the Convention and the Statute of the Office of the High Commissioner for Refugees. The Colloquium reached the following conclusions, which are submitted to the High Commissioner for Refugees for his consideration.

3. The Colloquium had regard to the fact that it was increasingly recognized that the refugee problem has now become universal in nature and of indefinite duration, and that the Convention is therefore no longer adequate; an increasing number of refugees are not covered by the Convention, particularly as it is limited to persons who have become refugees as a result of events before 1 January 1951. The members of the Colloquium were of the opinion that it was urgent for humanitarian reasons that refugees not at present covered by the Convention should be granted similar benefits by means of an international instrument. The Colloquium was agreed that a recommendation or a resolution would not be sufficient for this purpose and that a legally binding instrument would be necessary. While it would be possible to proceed by way of the preparation and adoption of a new Convention, whether by revision of the existing Convention or otherwise, such a procedure would, in their opinion, be too lengthy and cumbersome to meet the need for urgency. The Colloquium considered that the end in view could best be met by a Protocol to the Convention.

4. The Colloquium agreed that it would be essential that such a Protocol should remove the existing dateline (1 January 1951) in Article 1 A (2) of the Convention. The Colloquium agreed on the terms of the preamble and substantive provisions of a Draft Protocol the text of which is set out in Annex II.

5. In relation to this text, the Colloquium considered it desirable to make the following comments:

(a) Adherence to the Protocol would not be limited to States parties to the Convention but would be open to other States.

(b) It was the understanding of the Colloquium that the text in Annex II would allow reservations, within the limits of Article 42 of the Convention, to be made at the time of signature, ratification or accession to the Protocol.

(c) Under Article 1 B of the 1951 Convention parties are required, at the time of adherence to the Convention, to declare whether they will apply the Convention only to persons who are refugees as a result of events occurring in Europe before 1 January 1951, or whether they will apply the Convention without such geographical limitation. Under Article 1 (b) of the proposed Protocol, parties would undertake to apply the Convention without regard to the dateline of 1 January 1951. If the Protocol did no more than remove this dateline, it would appear that States adhering to the Protocol would still have the option contemplated by Article 1 B of the Convention, which they would be bound to exercise. The Colloquium considered that to give this option to States adhering to the protocol would not be consistent with its purpose, which is to extend the scope of the Convention as widely as possible. The Colloquium was of the opinion that no such option should be exercised in relation to the Protocol. The text accordingly includes a provision to the effect that no declaration under Article 1 B shall be made by any State on becoming party to the Protocol. As regards States which had already made a declaration under Article 1 B limiting the application of the Convention to events occurring in Europe, it was felt that it would be desirable, as a general aim, that such declaration should be withdrawn as soon as possible. On the other hand, it was also felt that if Protocol excluded the extension of such a declaration, it might deter some States which have made such a declaration from accepting the Protocol. The text accordingly includes a provision to the effect that existing declarations limiting the application of the Convention shall, unless withdrawn, apply also under the Protocol.

6. On two issues which were discussed in the Colloquium in connexion with the Draft Protocol, different views were expressed:

(a) Some members of the Colloquium expressed the view that the requirement of Article 38 of the Convention, relating to the compulsory jurisdiction of the International Court of Justice, would deter some States from acceding to the Protocol, and it was therefore suggested that the Protocol might contain a provision to the effect that States adhering to it would not be precluded from making a reservation, in relation to the Protocol, to Article 38 of the Convention. Others did not believe that this was a major obstacle to adherence. They were concerned also that to make Article 38 optional would result in two groups of States, one bound by Article 38 of the Convention and the other not. Such a result would, in their view, not only be undesirable but might prevent some States which have accepted the Convention, which includes Article 38, from adhering to the Protocol. The Colloquium felt that it was not in a position to evaluate the extent to which such a provision would in fact prove an obstacle to the adherence of States to the Protocol.

(b) It was also suggested that in view of the extended obligations devolving upon States which acceded to the Protocol there was a possibility that in exceptional circumstances some States might find it impossible, because of the number of refugees arriving in their territory, to continue to apply the provisions of the Convention. It was thought therefore that it would be desirable to make a specific provision in the Protocol enabling them in such circumstances to suspend the operation of those Articles of the Convention which may, under Article 42, be subject to reservations. Certain members of the Colloquium pointed out that without such a provision some States might be unwilling to become parties to the Protocol. On the other hand, the view was expressed that a provision in the Protocol giving discretion to States to suspend unilaterally their obligations under the Convention might be open to abuse.

7. In regard to these issues it would of course be important to ascertain the attitude of governments. The Colloquium considered that it might nevertheless be useful to prepare texts of articles embodying the proposals discussed in paragraph 6; these texts will be found in Annex III.

8. The Colloquium also gave some consideration to certain other legal aspects of refugee problems; its views on these are set out below.

9. Reference was made to the fact that regional organizations were contemplating the adoption of regional arrangements dealing with refugee problems in their particular area.

The members of the Colloquium agreed that it was appropriate to seek measures for the solution of local aspects of such problems on a regional basis, supplementary to measures adopted on a universal level.

The Colloquium was agreed that regional arrangements should be in harmony with the rules and principles, and should not involve any diminution of the standards, embodied in instruments adopted within the framework of the United Nations. There should also be close co-operation between regional organizations and the United Nations High Commissioner for Refugees.

10. The Colloquium reaffirmed the wish, expressed in the preamble to the 1951 Convention, that States, while recognizing the social and humanitarian nature of the problem of refugees, should do everything in their power to prevent this problem from becoming a cause of tension between States. They should apply the Convention in good faith and in particular should accord and maintain the status of refugee under the Convention only for persons entitled to such status under Article 1.

11. The Colloquium also discussed the question of reception ("accueil") and asylum.

The Colloquium agreed that the first and foremost need of a refugee from persecution is to be received in another country.

Under international law it is the sovereign right of any State to admit any person it wishes, without regard to any objection by other States. The Colloquium took note that under Article 14 of the Declaration of Human Rights, bona fide refugees have "... the right to seek and to enjoy in other countries asylum from persecution ..."; moreover, that every State may grant such asylum without regard to any objection by other States.

The Colloquium stressed the importance of Article 33 of the Convention, forbidding a State to "... expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". It also took note of the principle, expressed, inter alia, in the Draft Declaration of Asylum drawn up by the Commission of Human Rights, that no person shall be subjected to rejection at the frontier, to return or expulsion which would compel him to return to or remain in a territory if there is well-founded fear of persecution endangering his life, physical integrity or liberty in that territory.

The Colloquium also emphasized the importance of Recommendation D of the Conference of Plenipotentiaries of 1951 "... that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum ..."

It was also agreed that receiving refugees or the granting of asylum in no way implies an unfriendly act in relation to the State of origin of the refugee or a passing of judgement on the political system in that State.

The view was expressed that there was an increasing tendency towards the recognition of the above principles as part of international law. Note was taken of the growing respect for these principles, and particularly of the generous way in which many States have applied them in recent years. The Colloquium gave its warm support to this development.

12. In conclusion, the Colloquium considered that the continual and recurring character of the refugee problem required the international community to re-examine all aspects of its refugee activities, including the Statute and office of the High Commissioner.

ANNEX I List of Participants

Professor Milan BARTOS,
Secrétaire général de l'Académie des Sciences,
Faculté de droit,
Université de Beograd,
BEOGRAD.

H. E. Mr. Mohammed BEDJAOUI,
Ministre de la Justice de la République algérienne démocratique et populaire,
ALGER.

H. E. Mr. E. K. DADZIE,
Ambassador of Ghana to Rumania,
BUCHAREST.

Professor Edvard HAMBRO,
Member of the Norwegian Parliament,
Professor of Law, Bergen,
OSLO.

Professor Louis HENKIN,
Hamilton Fish Professor of International Law and Diplomacy,
Colombia University,
NEW YORK.

Sir Samuel HOARE, C.B.,
LONDON.

Dr. Z. K. MATTHEWS,
Secretary for Africa,
World Council of Churches,
GENEVA.

Professor Riccardo MONACO,
Chef du Contentieux diplomatique du Ministère des affaires étrangères,
ROME.

Mr. Philippe MONOD,
Ministre Plénipotentiaire,
Ministère des affaires étrangères,
PARIS.

Dr. K. Krishna RAO,
Legal Adviser and Director,
Ministry of External Affairs,
Government of India,
NEW DELHI.

Dr. Oscar SCHÜRCH,
Directeur de la Division de Police du Département fédéral de Justice et Police,
BERNE.

Dr. Francisco URRUTIA,
Bogota,
COLOMBIA.

H. E. Mr. Endre USTOR,
Ambassador,
Head of International Law Department,
Ministry for Foreign Affairs,
BUDAPEST.

Dr. John GOORMAGHTIGH, Chairman,
Director of European Center,
Carnegie Endowment for International Peace,
GENEVA.

Mr. Ivor JACKSON,
Member, Legal Division,
Office of the United Nations High Commissioner for Refugees,
GENEVA.

Mr. Antoine MARTIN,
Chargé de Recherches,
Institut de Hautes Etudes Internationales,
GENEVA.

H. E. Mr. Félix SCHNYDER,
United Nations High Commissioner for Refugees,
GENEVA.

Professor Jean SIOTIS,
Consultant,
European Center,
Carnegie Endowment for International Peace,
GENEVA.

Dr. Paul WEIS,
Director, Legal Division,
Office of the United Nations High Commissioner for Refugees,
GENEVA.

ANNEX II Draft Protocol

The States Parties to the present Protocol,

Considering that the Convention relating to the Status of Refugees of 28 July 1951 (hereinafter referred to as "the Convention"), covers only persons who became refugees as a result of events occurring before 1 January 1951;

Considering that new refugee situations have arisen as a result of events since that date, and that the refugees concerned may not be covered by the Convention;

Considering that it is desirable to make the provisions of the Convention applicable to the greatest possible number of refugees;

Have agreed as follows:

1.

(a) The States Parties to the present Protocol shall be bound by all the provisions of the Convention, as modified by this Protocol.

(b) They shall apply the provisions of the Convention to any person within the definition of "refugee" in Article 1, as if the words "As a result of events occurring before 1 January 1951 and ..." and the words "... as a result of such events," in Article 1 A (2) were omitted.

(c) No declaration as contemplated by Article 1 B of the Convention shall be made by any State when becoming party to this Protocol. The States Parties shall apply the Convention without any limitation such as is permitted by Article 1 B (1) (a), save that existing declarations under Article 1 B (1) (a) shall, unless extended under Article 1 B (2), apply also under the Protocol.

(Final clauses to be added)

ANNEX III

Draft Article relating to reservations (Paragraph 6 (a) of the Report)

As among States Parties to this Protocol, reservations may be made to any of the provisions of the Convention, as herein extended, other than those contained in Articles 1, 3, 4, 16(1), 33, 36, 37, 19-46 thereof.

Draft Article relating to exceptional circumstances (Paragraph 6 (b) of the Report)

Where exceptional circumstances result in the presence on the territory of a State Party of such numbers of refugees that that State Party finds itself unable to continue to apply the provisions of the Convention, it may, by a notification addressed to the Secretary-General of the United Nations, suspend, as from the date of such notification, and for a period of up to six months, its obligations under the present Protocol (other than those to which Articles 1, 3, 4, 16(1) and 33 of the Convention relate) in regard to those refugees who are present on its territory as a result of such exceptional circumstances.

A suspension notified in accordance with the present Article shall not affect the application by the State concerned, of the present Protocol to refugees already benefiting from its provisions.

A State Party which has notified a suspension in accordance with this Article many, before the expiration of the six months period, similarly notify a suspension for a period of up to six months, and may, if necessary, subsequently notify further suspensions for a similar period and in a similar manner. The State Party shall inform the Secretary-General of the United Nations when the suspension has been terminated.