Note on International Protection (submitted by the High Commissioner)

A/AC.96/458

Introduction

1. This note is submitted in response to the wish of the Executive Committee that the question of protection be discussed each year. As in the past, details of the principal developments in the field of international protection, up to 31 March 1971, are given in the High Commissioner's annual report to the General Assembly at its twenty-sixth session.

2. The purpose of this note, in addition to reporting a number of recent developments, is to draw attention to certain general trends in the field of international protection, having regard in particular to the fact that 1971 is the 20th anniversary of the establishment of the office. Reference will not only be made to various positive aspects but also to certain problems which still call for solution.

Creation and development of the legal framework of international protection

3. The most significant development which has taken place since the establishment of UNHCR has been the creation and strengthening of the legal framework for the exercise of the Office's international protection function. This function can be carried out effectively only on the basis of a series of international instruments defining the fundamental rights of refugees and the minimum standards for their treatment. A series of instruments of this type began to be adopted after the first World War. The basic and most comprehensive international instrument concerning refugees is the United Nations Convention Relating to the Status of Refugees¹ which was adopted by a Conference of plenipotentiaries shortly after the establishment of the Office in 1951. The Convention came into force in April 1954 and the number of parties to it has now reached 61, the latest accessions, since the twenty-first session of the Executive Committee, being those of Uruguay and Malta.

4. In addition to the wide acceptance of the Convention there has been an encouraging trend in the direction of broadening the scope of the obligations defined in this instrument. Thus a number of States, most recently France, have withdrawn the geographic limitation, made upon their accession, which restricted their obligations to persons who had become refugees as a result of events in Europe. Furthermore, in order to remove the 1951 dateline in the Convention and to make its provisions applicable in new refugee situations, in particular those arising outside Europe, the Protocol Relating to the Status of Refugees² was drawn up and opened for accession on 31 January 1967. Since that date 47 States have become parties to this instrument (including 45 States which were already parties to the 1951 Convention), the latest accessions, since the twenty-first session of the Executive Committee - being those of Uruguay, France, Burundi, Morocco and Luxembourg. Bearing in mind the importance of the Convention and Protocol from the standpoint of international protection, it is hoped that further States, and in particular those which have a large refugee population and in which substantial UNHCR projects are being implemented, will find it possible to accede to these instruments in the near future.

5. The legal framework of international protection also comprises various other instruments which have come into existence since the establishment of UNHCR, notably the 1957 Agreement relating to Refugee Seamen, the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. At the regional level, mention should be made of the 1969 Convention of the Organization of African Unity relating to the Specific Aspects of Refugee Problems in Africa, which, inter alia, defines basic principles relating to asylum and voluntary repatriation. This Convention has now been ratified by four States, the Central African Republic, the People's Republic of the Congo, Senegal and Togo. Having regard to the time which has elapsed since its adoption, it is hoped that this instrument will also enter into force at an early date.

Development of implementing measures on the national level

6. The development of the legal framework of international protection has been accompanied by a corresponding development on measures on the national level designed to give effect to the basic standards laid down in the various international instruments. Since the adoption of the Convention in 1951, States parties thereto have progressively adopted a variety of legislative and administrative measures to give effect to its provisions.

7. At an earlier session the Committee gave its approval to the proposal that a questionnaire be addressed to States parties to the 1951 Convention and the 1967 Protocol concerning the measures adopted by them to implement these instruments. This questionnaire, modelled on those used by the International Labour Organization, requests States to give information regarding wage-earning employment (Art. 17), self-employment and the liberal professions (Arts. 18 and 19), public education (Art. 22), public relief, labour legislation and social security (Arts. 23 and 24), administrative assistance (Art. 25), freedom of movement (Art. 26), identity papers and travel documents (Arts. 27 and 28), punishment for illegal entry (Art. 31), expulsion and non-refoulement (Arts. 32 and 33) and naturalization (Art. 34). In addition, States are requested to provide general information on the legislative and administrative measures of implementation adopted by them and to indicate the procedures established for the determination of refugee status.

8. Replies have so far been received from the following 20 States: Australia, Austria, Belgium, Botswana, Burundi, Democratic Republic of the Congo, Denmark, Ecuador, Ethiopia, Finland, Italy, Monaco, Netherlands, New Zealand, Nigeria, Senegal, Sweden, Switzerland, Turkey and Zambia. It is hoped that those Governments which have not yet replied will give this matter their early attention so as to enable the Office to prepare an analysis of the implementing measures adopted by all States parties to the Convention and the Protocol.

9. The detailed information contained in the replies is greatly appreciated. With regard to certain articles, however, it may be necessary to request States to provide supplementary data. It is gratifying to note from the reports that only in very few instances is there a clear lack of conformity between measures at the national level and the requirements of the Convention. Moreover, in many cases where States have introduced reservations the provisions of the Convention are nevertheless applied in practice. In regard to economic and social rights, documentation for refugees, and expulsion and non-refoulement, there appears to be general conformity with the Convention.

10. In evaluating the degree of conformity of national measures with the standards laid down in international instruments, it is perhaps appropriate to express a word of caution. In some cases conformity exists in so far as the general legislation of the country permits the application of the provisions of the Convention although no specific measures have been adopted to give effect to its provisions. Whether the adoption of such specific measures would be desirable in order further to strengthen the position of the refugees is a matter to which thought should perhaps be given. Moreover, in the absence of such specific measures it might prove necessary to seek additional information on the actual degree of implementation within the framework of more general provisions contained in national legislation.

11. One area in which implementing measures are of particular importance concerns the establishment of appropriate procedures for the determination of refugee status. Such determination is, of course, relevant in establishing whether a person should receive asylum and can claim the standards of treatment to which refugees are entitled. In various countries, both in Europe and in Africa, formal procedures, in which UNHCR participates in varying degree, have been established. In other countries consideration is being given to this matter, and in some of these the elaboration of procedures has reached on advanced stage. The High Commissioner appreciates the confidence shown by Governments in consulting his office regarding the various technical problems arising in connexion with the setting up of such procedures. He hopes that the efforts at present being made in this direction will soon yield positive results, and that further States will also give favourable consideration to the possibility of adopting appropriate procedures.

12. The absence of a formal eligibility procedure constitutes a serious lacuna in the legal framework of international protection. If a procedure does not exist, there is no guarantee that a bona fide asylum seeker will be treated according to accepted humanitarian standards, and that extraneous considerations, such as those of a political, economic or security nature, will not influence the case.

Asylum and non-refoulement

13. Since the establishment of the Office, there has been an increasing recognition and acceptance of the basic principles relating to asylum and in particular the principle of non-refoulement, according to which no person may be returned to a country where he fears persecution. This trend has been marked by the unanimous adoption by the General Assembly of the United Nations of the Declaration on Territorial Asylum in 1966, by the adoption in June 1967 by the Committee of Ministers of the Council of Europe of Resolution 67 (14) on Asylum to Persons in Danger of Persecution; by the reaffirmation of the importance of the principle of non-refoulement in Resolution 5 adopted by the International Conference on Human Rights held in Teheran in April/May 1968, and by the inclusion of binding legal provisions on asylum in the OAU Refugee Convention of 1969 and in the Inter-American Human Rights Convention of the same year. Moreover, provisions relating to asylum have been included in the Constitutions or in the legislation concerning aliens of a number of States.

14. Having regard to these trends, thought has been given increasingly in recent years to the possibility of strengthening the principle of asylum, if possible by the adoption of a binding legal instrument on the subject. In 1965 the Consultative Assembly of the Council of Europe, in Recommendation 434, drew attention to the desirability of elaborating an international instrument giving full legal recognition to the practice of granting asylum in member States. A similar approach has been adopted by non-governmental organizations such as the International Law Association and the World Federation of United Nations Association. The Asylum Committee of the International Law Association with which UNHCR is co-operating has given further consideration to the draft conventions relating to diplomatic and territorial asylum, the text of which had tentatively been adopted at the Conference of the Association held in Buenos Aires in 1968. Furthermore, the conference of non-governmental organizations, held on the occasion of Human Rights Year in 1968, adopted a recommendation on the enforcement of the principle of asylum. The question of asylum was also examined by a Colloquium of Legal Experts from 15 countries which met in Bellagio, Italy, in April 1971. This Colloquium, which was organized by the Carnegie Endowment for International Peace in consultation with UNHCR, prepared a preliminary text for an international instrument on asylum which is to be further considered. The High Commissioner will inform the Committee of the results of the Colloquium's work when its recommendations are available.

15. With regard to the position of individual refugees who have gained admission to certain countries, the High Commissioner has noted that although there has been some improvement since the Committee's last session, some governments are still reluctant to regularize the status of such persons on their territory. This problem concerns in particular urban dwellers in certain African capitals. The problem was brought to the attention of the Executive Committee at its twenty-first session, which expressed concern at the difficulties still encountered by individual refugees and recommended that the High Commissioner should appeal to governments to give special attention to the need to regularize their situation as rapidly as possible. However, generally speaking, and in the absence of over-riding considerations the stay of individual asylum seekers should not automatically be regarded as temporary and they should not be subjected to detention or punishment if they fail to leave the territory of the state concerned. It may also be mentioned that considerable difficulties have been experienced in finding resettlement possibilities for such cases and this solution should therefore only be envisaged in exceptional cases.

Legal protection and the cessation of refugee status

16. One of the aims of international protection is to ensure that refugees receive an appropriate legal status until the time when they cease to be refugees. From the time of the inception of UNHCR, refugee status has been conceived as temporary, and international protection as paving the way for the termination of that status by voluntary repatriation or naturalization.

17. Since its establishment, the Office has continued to promote voluntary repatriation which, according to its Statute, is one of the principal solutions to refugee problems. As long as this solution is feasible, it should be given priority, and only thereafter should alternative solutions be envisaged. The Committee is, of course, aware of the means whereby voluntary repatriation is facilitated by the Office; by helping to overcome the technical and financial problems involved. The Office furthermore must ensure that the voluntary character of repatriation is always respected. It has been gratifying to note that repatriation has continued during the period under review especially in Africa. This has been made possible to a large extent by the normalization of conditions in certain countries.

18. With regard to naturalization it will be recalled that the Committee, at its twenty-first session, supported the view that refugees, particularly in countries where they have resided for a long period, should be given appropriate facilities for acquiring the nationality of that country and should be provided with the necessary information on the regulations and procedures in force. It further paid tribute to the Council of Europe for the initiative it had taken in encouraging the acquisition by refugees in its member countries of the nationality of those countries. In regard to naturalization, positive trends have continued to prevail in countries of immigration overseas and in European countries where refugees have now resided for a number of years. Moreover, the Office has recently been informed of the naturalization of a number of refugees in Tanzania. A favourable provision has recently been included in the nationality legislation of Burundi whereby the qualifying period of residence has been reduced in the case of refugees. It is hoped that these developments will constitute a new departure as regards the naturalization of refugees in Africa. UNHCR continues to follow up this question and it has taken steps through its Branch Offices and has co-operated with the International Council of Voluntary Agencies to ensure that the importance of naturalization is duly brought to the attention of individual refugees.

19. The High Commissioner would like to draw special attention to the question of the automatic acquisition of nationality by refugee children born on a State's territory as a means of avoiding the perpetuation of refugee status into the second and third generation. It is to be regretted that the 1961 Convention on the Reduction of Statelessness has not yet received a sufficient number of accessions to enter into force. However, it is encouraging for UNHCR to be able to announce that Norway recently became a party to it, bringing the number of accessions to three. Furthermore, certain States are giving consideration to this matter and it is hoped that the three additional accessions inquired for the entry into force of this instrument will soon be received.

Family reunion

20. At its twenty-first session, the Executive Committee stressed the importance it attaches to ensuring that the unity of the refugees family is maintained in accordance with the provisions of Section IV B of the Final Act of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, and recommended that the High Commissioner should continue to make every effort to this effect. It will be recalled that the Conference in its final act recommended, inter alia, that governments:

"take the necessary measures for the protection of the refugee's family, especially with a view to: (1) 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."

21. In view of the humanitarian factors involved, the High Commissioner has always attached special importance to this question and he has continued his efforts to promote the unity of the family which the above-mentioned Conference considered as "an essential right of the refugees". These efforts have not, however, led to any marked success, and the High Commissioner, therefore, reiterates the hope that all States, whether or not they are parties to the 1951 Convention, will give him their full support and co-operation in continuing to promote the reunion of separated refugees, thus safeguarding the unity of the family which is "the natural and fundamental group unit of society".

Achievements and future tasks in the field of protection

22. While noteworthy developments have taken place since the establishment of the Office in 1951, including the strengthening of the legal framework for the exercise of protection and the recognition of the principles of asylum and non-refoulement, the most significant one has been the increasing acceptance by States of the function of international protection and of the basic principles underlying this activity. Consequently refugees in a large number of countries are in a better position to overcome the legal obstacles which they have to face by virtue of their being refugees. However, even when the basic principles of protection have come to be generally accepted, a considerable task remains to be carried out. For, besides the day-to-day work, fresh problems continue to emerge as, for instance, new groups of asylum seekers. Furthermore, considerable problems may arise in certain countries which have not yet acceded to the basic intergovernmental instruments relating to refugees or, having only recently acceded, have not yet adopted measures of implementation. Moreover, in a number of countries, the legal infrastructure on which effective implementation measures must be based is still in a formative stage. In some of these countries there are still the serious problems referred to above regarding admission and the regularization of the status of asylum seekers. All these considerations point to the continuing need of international protection, both in the traditional areas and in new areas where refugee problems arise.

23. It is the High Commissioner's hope that the progress achieved in the field of international protection since the establishment of his Office in 1951 may be a source of encouragement for further action and that he may continue to rely on the support of Governments in confronting the important tasks which remain to be accomplished.

(Note: Statistical and financial tables not included in this online version. See your nearest UN Depository Library.)

1 For the status of accessions and ratifications of intergovernmental legal instruments of benefit to refugees as of 1 September 1971, see Annex I.

2 For the status of accessions and ratifications of intergovernmental legal instruments of benefit to refugees as of 1 September 1971, see Annex I.