Note on Asylum

EC/SCP/4

Introduction

1. A person who leaves his country of origin because of persecution or a well-founded fear of it has a primary and essential need to receive asylum in another country. Asylum implies the possibility of remaining in a country either permanently or at least on a temporary basis pending resettlement elsewhere. It also implies protection, by virtue of the principle of non-refoulement, against expulsion or return to a country where the person concerned has reason to fear persecution. The question of non-refoulement is dealt with in a separate paper submitted to the Sub-Committee.

2. In the exercise of his function to provide international protection, the High Commissioner seeks to ensure that refugees receive asylum and to promote liberal asylum practices by States. In Resolution 428 (V) of 14 December 1950,. to which the Statute of UNHCR is annexed, the General Assembly specifically "calls upon governments to co-operate with the United Nations High Commissioner for Refugees in the performance of his functions ..... especially by admitting refugees to their territories".

3. The Question of asylum in the sense of temporary or permanent admission is not dealt with in the 1951 Convention relating to the Status of Refugees. The Final Act of the Conference of Plenipotentiaries that adopted the Convention, however, contains the following Recommendation IV. D on the question of admission:

"THE CONFERENCE,

CONSIDERING that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position,

RECOMMENDS 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 and the possibility of resettlement."

4. The United Nations Declaration on Territorial Asylum, unanimously adopted by the General Assembly in 1967, defines certain important principles intended to facilitate admission for asylum. Firstly, the principle that "asylum granted by a State in the exercise of its sovereignty ... shall be respected by all other States". It is a peaceful and humanitarian act and ... as such it cannot be regarded as unfriendly by any other State". Secondly,

"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."

5. In various instruments adopted on the regional level, the question of admission for asylum has received more specific attention than in those adopted at the universal level. Thus the OAU Convention of 1969 governing the Specific Aspects of Refugee Problems in Africa provides that:

"Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to, secure the settlement of those refugees who for well-founded reasons are unable or unwilling to return to their country of origin or nationality." (Article II(1)

Moreover,

"Where a refugee has received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presents himself as a refugee pending arrangements for his resettlement."(Article II (2).

6. Within the Council of Europe, Recommendation 434 or, the Granting of Asylum to European Refugees adopted by the Assembly on 1 October 1965 recommended inter alia to the Committee of Ministers pending the adoption of an international instrument intended to give full recognition to the practice of granting asylum in Member States: "To afford ... refugees at least temporary asylum with a view to their admission to another country in cases where a given country does not feel in a position to grant them permanent asylum for reasons of national security or safeguarding the population.

7. Additionally, in Resolution 67(19) concerning Asylum to Persons in Danger of Persecution, adopted on 28 June 1967, the Council of Ministers of the Council of Europe recommended inter alia that Member Governments:

"should act in a particularly libera1, and humanitarian spirit in relation top persons who seek asylum on their territory."

8. There is thus an awareness an the part of many States of the urgent and essential need for refugees to receive a Nevertheless, the question of asylum continues to give rise to serious problems at the international level. It was precisely in order to achieve a further measure of progress in the law relating to asylum that the Conference on Territorial Asylum was convened pursuant to General Assembly Resolution 3456 (XXX) of 9 December 1975. The Conference, which met in Geneva from 10 January to 4 February 1977, was unable to complete its work within the allocated time, thus leaving it to the General Assembly to determine what further action should be taken.

9. The purpose of the present Note is not to deal with fundamental questions relating to asylum. but to draw the attention of the Sub-Committee to certain practical problems regarding asylum encountered by the High Commissioner in the day-to-day exercise of his functions under the Statute and within the framework of other instruments.

Practical problems arising in relation to asylum

10. Many governments have continued to follow liberal and generous asylum practices - that have greatly facilitated the humanitarian work of the High Commissioner, particularly with regard to the admission of large groups of, refugees. As mentioned by the High Commissioner in his Report to the General Assembly at its thirty-second session,¹ during 1976 over 100,000 persons in quest of asylum have been admitted, if not on a permanent basis at least temporarily, in well over fifty countries - spread over five continents. This figure is composed mainly of large groups.

11. Many of the states that have followed positive asylum practices are also parties to the 1951 Refugee Convention and the 1967 Protocol, and have established special procedures for determining refugee status under these instruments. UNHCR has, however, been called upon to deal with a number of cases where individual asylum-seekers have encountered serious difficulties in obtaining permanent or even temporary refuge, and have sometimes had to suffer extremely serious consequences when asylum has been refused. It is necessary to mention in detail some of these negative practices.

12. In some cases, States have closed their borders to asylum-seekers who were not even given the opportunity of addressing themselves to the authorities in order to make known their wish to receive asylum.

13. In other cases, requests for temporary asylum by individuals or small groups of persons have been refused. In this connexion, mention should be made of the situation which was reported to the Executive Committee at its twenty seventh session of small groups of Indo-Chinese leaving the Peninsula in small boats. These persons have frequently encountered serious difficulties in obtaining permission to land in the territory of any State and have been obliged to remain on board their sometimes unseaworthy vessels in arduous and extremely distressing conditions.

14. In its Conclusions on International Protection the Committee inter alia appealed to States:

"(a) Scrupulously to observe the legal provisions relating to the rescue of persons at sea, as contained in the Brussels Convention of 1910, and urged States to make every possible effort to ensure that the provisions of these legal instruments be respected by ships' masters under all circumstances.

(b) (i) To grant first asylum to refugees and displaced persons rescued at sea or who had come directly by sea, and

(ii) to offer resettlement opportunities to those who had been unable to obtain permanent residence in the State of first asylum.

The High Commissioner greatly welcomes this special appeal made by the Committee at its twenty-seventh session. He is, however, obliged to report that tragic cases of the type described have continued to arise.

15. The Office has also become aware of cases in which States have refused asylum to persons already in their territory and have returned them to their country of origin in disregard of the principle of non-refoulement, sometimes after unduly long periods of detention and under particularly harsh conditions Without due process of law. In some cases, a person had been lawfully residing in the territory of the State concerned until the moment when he was returned to his country origin.

16. In cases where person had been unlawfully in the territory, detention measures accompanying the refusal of asylum were based on his illegal presence. In this connexion, it should be recalled that, due to the difficult situation in which an asylum-seeker finds himself, it is not always possible for him lawfully to enter the State from which he requests asylum. This circumstance should necessarily be taken into account in determining any measures of punishment or detention based on his illegal presence in the country.

Nature and consequences of negative practices in regard to asylum

17. The negative practices mentioned in the preceding paragraphs are of a serious character. They generally involve a disregard of the basic standards defined in the Universal Declaration of Human Rights and in the United Nations Declaration on Territorial Asylum. In the case of States that are parties to the 1951 Convention and the 1967 Protocol they also imply in many cases a distinct violation of the obligations defined in these instruments.

18. Refusal of asylum has often led to very grave consequences for the individuals concerned. The Office is aware of instances in which applicants for asylum have been subjected to particularly severe punishment upon being returned to their country of origin. In the case of the displaced persons who left their: country in small boats, refusal of temporary asylum has obliged the asylum seekers to remain on their boats under inhuman conditions for protracted periods. In some cases, after having been refused permission to land, they have lost their lives due to the unseaworthiness of the vessels on which they were obliged to remain.

19. The High Commissioner is particular concerned that, in many of the situations described above, the persons concerned were not even given the possibility of applying for asylum or refugee status to the competent authorities. He is also obliged to report that in the important matter of asylum a number of governments have failed to co-operate with his Office in the execution of its functions, in disregard of, the specific call by the General Assembly in Resolution 428 (V) of 14 December 1950.

Recommendations

20. In view of the extremely disquieting developments described in this Note the Executive Committee may wish:

(a) To draw the attention of governments to the various international instruments existing in the field of asylum and to reiterate the fundamental importance of those instruments from a humanitarian standpoint;

(b) To draw the attention of governments to recent negative practices in regard to asylum and to the serious consequences of these practices for the individual concerned;

(c) To appeal to governments to follow liberal practices in granting permanent or at least temporary asylum in a truly humanitarian spirit;

(d) To appeal to governments to adopt appropriate implementing measures to ensure that such positive asylum practices are effectively implemented;

(e) To call on governments to co-operate with the High Commissioner in the performance of his functions - especially in regard to asylum - in accordance with General Assembly Resolution 428 (V) of 14 December 1950.

1 Document E/5987, paragraph 3.