Lectures by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, on legal problems relating to refugees and displaced persons, given at the Hague Academy of International Law, 4-6 August 1976
1. The work of international assistance to refugees has steadily developed, both in scope and scale, since its inception under the auspices of the League of Nations. Starting as it did with the provision of emergency relief and legal protection of a limited nature to a specific group of persons in Europe it has grown today into a comprehensive system of aid and protection and has assumed, what might be termed, a universal character. This expansion has been closely linked with political, technical, economic and social developments that have taken place in the world at an accelerated pace during the first half of this century and which have culminated in an unprecedented progression throughout the past decade.
2. This century is sometimes referred to as the century of the uprooted. This is felt more acutely and widely because of the expansion of communications. The world has shrunk and large-scale problems of refugees, displaced persons, minorities and war-victims have come to the close attention of the international community. Wars and many other military and political conflicts have brought in their wake a countless number of uprooted, including millions of refugees in search of new homes. The emergency of many new national states often entailing changes of regime and of boundaries, the struggle for decolonization and the reshaping of whole areas have also brought about an endless stream of human misery. At the same time, however, there has been a growing awareness and recognition of basic human rights which finds expression in the Charter of the United Nations and in the whole network of legal instruments aimed at promoting social progress and equality of rights for all men.
3. A number of distinguished lecturers on the problems of refugees and closely related questions, such as statelessness and asylum, have had the privilege of lecturing at this Academy. These included two of my predecessors. In their lectures may be found the foundation of the work for refugees of the United Nations as well as the developments that characterized the first 15 years of UNHCR's existence. The main objective of this course will be to highlight progress in the work of international assistance to the uprooted against the background of more recent developments. Special emphasis will be placed in the latter part of the course on the evolution of the institutional basis on which assistance today is provided for refugees and displaced persons in most parts of the world.
CHAPTER I - REFUGEES AND DISPLACED PERSONS
4. A refugee is commonly defined as any person who is obliged to flee his habitual place of residence and seek refuge elsewhere. This situation may result from two fundamentally different types of event: a natural disaster such as an earthquake or a flood, or what is referred to nowadays as a "man-made" disaster such as any international armed conflict, civil war, revolution or persistent general socio-political instability.
5. For the victims, the consequences of such events are, in the first case, purely material or physical, but in the second case they are also legal. Having severed contact with the authorities of the country of which he is or was a national and which he has been obliged to leave because his life or liberty were in danger, a refugee no longer enjoys the protection normally granted by a State to its national abroad. In his country of refuge, he is not only a foreigner, but also an under-privileged one. This abnormal situation produces countless difficulties and problems for the refugee himself, for the country of reception and for the international community as a whole. It was in an attempt to solve these problems that the international community decided, more than half a century ago, to assist this category of refugees who are now the concern of my Office.
6. The uncertainties of the internal or external situation of States sometimes give rise, however to a category of persons who fall outside this strict classification based on precise legal criteria. These are the displaced persons, whose situation is in many respects analogous to that of refugees. Uprooted from their homes by events similar to those which create refugees, displaced persons experience the same hardships and suffering; but they retain in principle their national status and do not present, a priori, any special legal problem. However, due to circumstances, to their isolation, to the confusion prevailing in the country or to the slowness of the authorities of their former or new country of residence in coming to their aid, these persons also sometimes find themselves, at least temporarily, in a precarious and uncertain situation, very similar to that of refugees. It is therefore not surprising that displaced persons have tended to be identified with refugees as such and that they have received international assistance, as was the case from 1945 to 1950 during the time of the United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organisation (IRO) and as is the case today. The situation of displaced persons will therefore also be dealt with in the present course.
B. Evolution of the definition of the term "refugee" in international law
7. The refugee first attracted the attention of the international community in 1921, after the First World War. Faced with a wave of Russian refugees, certain European countries found it necessary to introduce special legislation to overcome the problem created by the lack of identity papers, which made it impossible for many of these refugees to perform the most elementary acts of civil life (marriage, contracts etc.). Realizing, after the disaster which had befallen it, that nations were interdependent, the international community made a first attempt to organize itself and to create institutions designed to prevent the recurrence of such a catastrophe. In 1921, Fridtjof Nansen, the first High Commissioner for Refugees, acting within the framework of the newly established League of Nations, undertook a real crusade which resulted eventually in a number of international agreements benefiting the various groups needing assistance at that time: Russian, Armenian, Assyro-Chaldean and Turkish refugees, and subsequently refugees from Germany and Austria. These agreements, which dealt with specific groups of refugees, never attempted to give a general definition of the term "refugee", which in the circumstance, appeared unnecessary.
8. However, the agreements did contain a reference to the criterion which is common to all refugees, namely, the absence of the protection of their country of origin. For the first time, in 1938, the mandate given to the Inter-Governmental Committee on Refugees, set up to deal with refugees from Germany mentions the causes of the flight of those persons, who "must emigrate on account of their political opinions, religious beliefs or racial origin". In 1946, in the Constitution of the International Refugee Organization (IRO) drawn up by the Economic and Social Council, the notion of persecution, or well-founded fear of it, was first spelt out in full. This represented a twofold innovation: the fact, not only of describing the reasons which make a person a refugee, but also, of associating those reasons with a partly subjective element, namely fear, based on well-founded grounds of persecution. Consequently, from then on, every refugee would have to substantiate the fear he invokes by providing some proof based both on objective data and on the personal factors which make him fear persecution in the future, even if he has not been persecuted in the past. The collective aspect of the "refugee" phenomenon thus ceased to be decisive in granting refugee status, the emphasis being placed henceforth on the situation of the individual.
9. The immediate and fundamental consequence of this new approach was the need for a procedure establishing individual eligibility, associated with every possible guarantee to ensure that the refugee, who suffered persecution in his own country, did not subsequently suffer from the arbitrariness of a decision of vital importance for him: the decision by the country of refuge whether to recognize as a bona fide refugee and consequently grant him asylum.
10. This concept was to continue to prevail in 1950, when under the auspices of the United Nations General Assembly, the Statute of UNHCR was drawn up. It was repeated in the Convention relating to the Status of Refugees of the following year (commonly known as "the 1951 Convention"). There, for the first time, we find a general, universally-applicable definition of the term "refugee". Unfortunately, however, the application of that definition was to be hampered, in regard to the Convention, by the reluctance of Governments to venture into the unknown.
11. After referring to the refugee groups with which earlier agreements or conventions had been concerned, the Statute of UNHCR provides, in paragraph B of article 6, that the competence of the High Commissioner shall extend to "any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence".
12. Though essentially the same, the definition of the term "refugee" given by the Convention was subject to two limitations: apart from refugees who were already considered and regarded as such under earlier agreements, the Convention related only to these persons who had become refugees as a result of "events occurring before 1 January 1951". Moreover, governments had the discretion to apply the provisions of the Convention to persons who had become refugees as a result of events occurring "in Europe", or as a result of events occurring "in Europe or elsewhere".
13. With regard to the dead-line of 1 January 1951, the Committee which drafted the Convention had nevertheless stated that it was not its intention to deny the benefits of the Convention to "persons who may become refugees at a later date as a result of events which had occurred before then, especially where the results of these events made themselves felt at a later date". Thus the Hungarian refugees who left their country in 1956 were able to benefit from the Convention since the host countries extended the benefit of the Convention to them.
14. This dual restriction, of time and place, was to remain until the 1951 Convention was amended by the Protocol of 1967. For, as new groups of refugees emerged, this restriction became more and more discriminatory and unacceptable. There are now 66 signatories to the Convention and, of these States, 58 have acceded to the Protocol. Only 9 States continue to retain the geographical limitation for which they opted on signing the Convention, and which restricts its application to persons who have been the victims of events occurring in Europe.
15. The definition of the term "refugee" in the UNHCR Statute and in the 1951 Convention also contains certain restrictions, some of which derive from the definition itself while others are designed to excluded persons who are not deemed worthy of United Nations protection or assistance. Those specifically excluded are persons who enjoy the protection of the country of which they are national or persons who are recognized by the authorities of their country of residence as having the same rights and obligations as nationals of that country. Equally excluded are persons receiving protection or assistance from other United Nations organs or agencies. This is the case of the Palestine refugees, who are the concern of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Apart from the political considerations involved, the idea was to avoid overlapping between the functions of UN bodies.
16. Of quite a different order are the motives for excluding anyone for whom there are serious grounds for believing that he has committed:
- a crime covered by the provisions of extradition treaties, i.e. as is stated more explicitly in article 1 of the Convention, any persons who has committed a serious non-political crime;
- a crime mentioned in article VI of the Charter of the International Military Tribunal, i.e. a crime against peace or against humanity or a war crime;
- a crime referred to in article 14, paragraph 2, of the Universal Declaration of Human Rights, concerning persons who have been guilty of acts contrary to the purposes and principles of the United Nations.
17. These last provisions, which are sometimes difficult to interpret because they refer to offences or crimes which have not been precisely defined, relate to persons who have refugee status or who could lay claim to such status if they were not excluded from the mandate and from the benefits of the Convention for both legal and political reasons, or, in the case of persons who have committed a serious non-political crime, for obvious security reasons, if such persons have already been recognized as refugees, any subsequent revelation of their guilt will normally entail their exclusion from refugee status and consequently, from benefits for which they prove to be unworthy.
18. In recent years, the question has arisen whether aircraft hijackers come within the scope of these exclusion clauses, assuming, of course, that they can otherwise claim refugee status. No general answer can be given to this question, which calls for a case-by-case approach. Even if the hijacking is not regarded per se as a political act, the hijacker may have a well-founded fear of being persecuted for reasons of race, religion or political opinion in the country requesting his extradition. Moreover, no agreement has been reached on the actual principle of extradition. Following the Tokyo Convention of 1963, the Hague Convention of 16 December 1970 was primarily concerned with compelling Contracting States to prosecute the perpetrators of such acts of air piracy and laid down the principle aut punire aut dedere; i.e., either punish (on the spot) or extradite. There is, however, no provision which precludes the granting of refugee status and asylum to such persons. As far as the Office of the High Commissioner is concerned, the one clear case in which refugee status might be conferred on a hijacker is when the exclusive purpose of the hijacking is to enable the person concerned to escape from a country where he fears persecution and from which he has no other way to escape.
CHAPTER II - HISTORICAL DEVELOPMENTS IN RESPECT OF PROBLEMS OF REFUGEES AND DISPLACED PERSONS
19. Shortly after the inception of UNHCR in 1951, it appeared that within the estimated two million refugees coming within its competence, several hundreds of thousands, including nearly 100,000 still living in camps in Europe, would need material assistance with a view to becoming integrated in their country of residence or being resettled in other countries. Consequently, the Office was authorized by the General Assembly of the United Nations to launch assistance programme for these refugees meant to achieve permanent solutions to their problems.
20. I propose to give you a brief chronological account, area by area, of the problems of refugees and displaced persons faced by the Office in various parts of the world and will on this occasion also touch on the institutional developments involved, to which I will revert in detail later on.
21. With the rapid economic reconstruction of countries in Western Europe where the great majority of refugees were located, and the ebbing of political tensions, the majority of refugees were able to become integrated, at least from an economic and social point of view during the period 1955-1970. Although integrated economically, many of them, not yet naturalized, continued to require UNHCR' s protection and legal assistance. Additionally, there remained a steady flow of an estimated 10-15,000 newcomers each year for whom complementary assistance was required from the international community. There was also a growing proportion of physically handicapped among the non-settled refugees, who required special attention under the UNHCR Programme with a view to being permanently settled in institutions. New upheavals brought about a considerable further influx of European refugees, mainly into Austria, in 1956 and in 1968. Mention should also be made of the recent arrival of Asians of undetermined nationality expelled from Uganda as well as Chileans resettling in European countries in recent years and of other non-European refugees stranded mainly in these countries. Taking all these developments into account a UNHCR Assistance Programme is being continued on a limited scale in Europe.
22. since 1974 UNHCR has been confronted with the problem of displaced persons in Cyprus. In August of that year the High Commissioner was nominated by the Secretary-General as Co-ordinator of United Nations Humanitarian Assistance in Cyprus and undertook a large-scale programme of relief and assistance for the benefit of over 200,000 persons displaced and seriously affected by the events in that country.
23. UNHCR has also been facing the outstanding problems of some 100,000 European refugees in Latin America. These, however, were recently overshadowed by those of the refugees from Chile and other Latin American countries such as Bolivia, Brazil and Uruguay. UNHCR was at first called upon to intervene in Chile with a view to providing protection and assistance for refugees of Latin American countries who were in that country at the time of the change of government in September 1973. Subsequently, a large-size programme had to be launched in order to provide thousands of Chilean refugees with emergency relief, mainly in Argentina and Peru, and to help them to resettle in other countries. Following recent developments in Argentina their problems have been compounded by that of an increasing number of refugees from other countries in Latin America. Furthermore, the great majority of these refugees are in transit while awaiting resettlement opportunities in other countries. Their legal position is most unsatisfactory. They are unable to take up employment, some of them have been abducted, tortured and killed, while others are exposed to a similar fate. Their resettlement through migration has, therefore, become a most urgent matter.
24. Since the late 1950s UNHCR has been increasingly involved in Africa and Asia where large-scale problems of refugees and displaced persons called for a new approach in the field both of assistance and international protection.
25. The first of these problems concerned some 180,000 Algerian refugees in Morocco and Tunisia, including a large number of women and children. A special relief programme was launched for them in 1958, in co-operation with other UN agencies and non-governmental organizations, pursuant to specific resolutions of the General Assembly. Following the Evian Agreement of 1962, between the Provisional Algerian Government and the French authorities, practically all of these refugees returned to Algeria with the assistance of UNHCR.
26. Under the terms of its Resolution 1672 (XVI), the Assembly requested the High Commissioner to envisage the possibility of facilitating the re-establishment of these refugees in their own country, thereby expanding for the first time the UNHCR Mandate rationae metriae.
27. As from 1961, UNHCR was confronted with new refugee problems in several parts of the African continent, which may be divided into two distinct categories. There were, on the one hand, a number of refugee emergencies mainly resulting from internal strife in several countries which has already gained independence. On the other hand, there was an increasing flow of refugees from territories under Portuguese administration, and also from South Africa, Namibia and Southern Rhodesia (Zimbabwe) to neighbouring countries.
28. Major movements falling within the former category included the exodus from Rwanda, mainly of persons belonging to the Batutsi tribe, which began in 1961 as a result of the deep-seated political and social tensions in the country. They sought asylum in Burundi, Zaire, which at the time was called Congo-Leopoldville, Uganda and the United Republic of Tanzania, where their numbers soon reached 135,000. Also in the early 1960s political conflict within the newly independent states such as Zaire resulted in a movement of refugees to Burundi, Central African Republic, Sudan, Uganda and the United Republic of Tanzania. By 1966 their numbers had reached more than 80,000. As from 1967 an influx of Ethiopian refugees, mainly of Eritrean origin, took place into the Sudan, where this group has grown to over 90,000. More recently the Sudan had offered refuge to other groups of Ethiopian refugees seeking asylum. Another recent movement, also caused by internal strife, has been that of refugees from Burundi, belonging mostly to the Hutu tribe. Between 1973 and the end of 1975, some 135,000 of these refugees had crossed the borders of Zaire, Rwanda and the United Republic of Tanzania.
29. In providing assistance to these various groups, largely of rural background - UNHCR has been concerned both with immediate needs and with longer term solutions. The latter have included efforts to facilitate repatriation when desired, as was the case of refugees from Zaire and subsequently from the Sudan, most of whom have now returned to their homes. Alternatively, rural settlement projects have been elaborated to enable the refugees to attain self-sufficiency within their countries of asylum. Such projects have been implemented in co-operation with the governments concerned, with the frequent assistance of voluntary agencies and have benefited large numbers of the refugee groups. The most striking current example of rural settlement assistance financed by UNHCR is that of two organized agricultural settlements which accommodate over 100,000 Burundi refugees in the United Republic of Tanzania and which have been developed on a self-help basis. In a number of cases, refugees have been able to settle among the local population with a varying degree of assistance from reception countries and UNHCR.
30. UNHCR activities for the benefit of Sudanese refugees deserve special attention, in view of the wider significance they were to assume. Here again the movement of people was promoted by dissension and conflict within the country. By 1972, the exodus from the Sudan into neighbouring Uganda, Zaire and the Central African Republic had involved 160,000-180,000 persons, many of whom were assisted by UNHCR to settle on the land while awaiting a peaceful solution which would permit their return. The solution came with the signature in 1972 of the Addis Ababa Agreement between the Sudanese Government and the southern groups struggling for self-rule. Preparations then began for a large-scale return movement, not only of those residing beyond the frontiers of the Sudan, but also for some 500,000 persons who were displaced within the country. Considerable reconstruction work was also required. Under ECOSOC Resolution 1655 (LII), adopted in June 1972, UNHCR was designated to co-ordinate relief programmes in co-operation with other UN agencies concerned, along lines similar to those in India in 1971, as will be explained later. The operation which ensued provided for an urgent airlift of food and other essential supplies, the construction and repair of roads, including the construction of a bridge across the Nile at Juba, the provision of vehicles and equipment and a variety of measures to facilitate resettlement in agriculture, and to meet urgent health and educational needs. Contributions towards the operation totalled nearly $17 million and its successful implementation both helped large numbers of returnees to resume a normal life and contributed to improving the economic and social situation in the area.
31. The South Sudan Operation set several important precedents. As in the case of Algeria, it involved assistance within the country to which refugees returned, this time, however, on a much larger scale. This may be seen as a logical consequence of the high priority traditionally given to voluntary repatriation as the most desirable and satisfactory solution. UNHCR's assistance in facilitating the rehabilitation process was, indeed, all the more appropriate, in view of the major economic and social problems which accompanied the widespread devastation caused by the long years of civil strife. Especially in area to which people were returning. It was also the first occasion on which UNHCR was asked to assist persons displaced within their own country. This again seemed fitting since the persons shared the same predicament as refugees, and needed the same type of aid in order to resume a normal life.
32. As from the early 1960s there was growing international concern for the process of decolonization. UNHCR for its part was first confronted with the increasing problem of Angolans seeking refuge in Zaire. With a refugee population which was to exceed half a million by the mid-1970s, it became in size the largest single refugee problem in Africa. Widely scattered, mainly over the adjacent border areas, the Angolans were well received by the local population. The majority were able to engage in agriculture, while receiving a certain amount of assistance from the Zairian authorities, voluntary agencies and UNHCR, which provided mainly medical and educational facilities. The much smaller number of Angolans who had sought refuge in Zambia were for the most part accommodated in organized rural settlements supported by UNHCR.
33. This problem of refugees from colonial territories was to be followed in 1963 by the influx into Senegal of some 30,000 refugees form Guinea Bissau. Their numbers continued to grow until they reached some 80,000 in the early seventies. The great majority benefited from considerable assistance on the part of the Senegalese authorities and were able to settle on the land among the local population, with complementary assistance from UNHCR mainly in the field of health and education.
34. By 1965, hostilities in Mozambique had provoked an influx of Mozambicans into Tanzania and Zanbua, where they numbered some 80,000 in 1974. A considerable UNHCR assistance programme was put into effect with a view to their settlement in rural areas, with the co-operation of the local authorities and of voluntary agencies. Especially in Tanzania it was necessary to establish new rural settlements with all that this entailed in terms of basic infrastructure, including in particular the clearance of bush, the building of access roads and provision of basic medical and educational facilities and of the necessary equipment to enable the refugees to settle and, thereby, become self-supporting and independent of international assistance.
35. In assisting refugees from colonial territories, UNHCR acted in accordance with its Mandate as well as with the numerous resolutions on decolonization adopted by the General Assembly which provided for assistance to refugees from colonial territories and to liberation movements. As soon as the independence of the Portuguese Territories was proclaimed, UNHCR was called upon to establish special programmes to facilitate the repatriation of the refugees from Guinea Bissau, Mozambique and Angola in keeping with recommendations adopted by the Executive Committee of the High Commissioner's Programme at its twenty-fifth session and with Resolution 3340 (XXIX) adopted by the General Assembly at its twenty-ninth session.
36. In view of the scope and magnitude of the assistance required, it could not be included in the UNHCR current programme and it was necessary to establish special programmes whose target was established at some 4 million dollars for Guinea Bissau and over 7 million dollars for Mozambique. For the same reasons as those prevailing in the Sudan, these programmes also had to provide for assistance to internally displaced persons returning to their villages after independence. The great majority of the refugees and displaced persons concerned have now gone back to their homes in Guinea Bissau and Mozambique.
37. UNHCR is now about to embark on a similar programme in Angola, where steps are being taken to meet the immediate needs of persons returning to their homes. At the same time, plans are being worked out in the frame of the U.N. system with a view to assessing the needs of some 700,000 refugees and displaced persons already in the country and of another 300,000 who are expected eventually to return to it.
38. Throughout the past decade UNHCR has been called on to assist smaller groups of refugees, mainly from Malawi, Namibia, South Africa and Zimbabwe in neighbouring countries, wither on an individual basis or by including them in rural settlement projects conceived from various other larger groups of refugees. Following recent developments in Zimbabwe, an increased number of refugees from that country are arriving in Mozambique where special assistance measures are being taken for their benefit. There is also an increased influx of Namibians into Southern Angola for whom special measures will probably also be required.
39. Until 1970 the problems of refugees with which UNHCR had to deal in Asia and the Far East had been limited in size and scope and were by then on their way to being solved. In 1971, however, UNHCR was confronted with a problem of unprecedented size - the influx of East Bengalis into the neighbouring regions of India following the internal conflicts in East Pakistan. the total number of arrivals over a period of less than a year was estimated by the Indian Government to be of the order of 10 million. The majority had to be housed in camps in West Bengal.
40. The scope of this problem and the speed with which it emerged called for rapid concerted action on the part of the U.N. agencies. In response to the request for assistance from the Government of India, the Secretary-General designated UNHCR as focal point for the co-ordination of assistance by the United Nations agencies concerned to the East Bengalis. The specific tasks of UNHCR included liaison with the governments and agencies involved in the work of assistance, co-ordination and procurement and the raising of substantial funds from governments and private sources. In an exceptionally generous response, over 185 million dollars were donated in cash and kind, and were used first for emergency relief and assistance and subsequently to help the East Bengalis return to their homeland at the end of the hostilities.
41. In its resolution 2790 (XXVI) adopted at its twenty-sixth session in December 1971, the Assembly, inter alia, endorsed the designation of UNHCR by the Secretary-General as focal point for assistance to the refugees concerned, thus setting a precedent which was to be followed also on other occasions, as in the case of the Sudan.
42. Following the New Delhi Agreement of August 1973, UNHCR was entrusted by the Secretary-General with the task of arranging the return to their respective homelands of some 240,000 Pakistanis and East Bengalis. Through governmental contributions and with the ready operational assistance of the International Committee of the Red Cross, UNHCR was enabled to complete this task by July 1974, mainly through the organization of a massive airlift between Pakistan and Bangladesh.
43. This operation was undertaken in keeping with resolution 2956 (XXVII) in which the Assembly, inter alia, had requested the High Commissioner to continue upon the invitation of the Secretary-General to participate in the humanitarian endeavours of the U.N. for which his Office has a special expertise an experience.
44. Since 1974, developments in the Indochinese Peninsula have involved UNHCR in several further special operations in keeping with the above resolution. Following the Paris Agreement of January 1973, an initial programme with a target of twelve million dollars was launched for the period 1974-75 with the concurrence of the Secretary-General in order to assist in rehabilitating hundreds of thousands of displaced and uprooted persons mainly in rural areas in Laos and Viet-Nam. Part of this programme could not be implemented due to developments in South Viet-Nam during 1975. A further target of twenty million dollars had been set for the continuation of this programme in 1975 and 1976. Its main object is to alleviate the plight of the displaced persons and thus promote the harmonious deployment of human resources which is so greatly needed to rebuild the economy of the area.
45. During the actual hostilities in March and April 1975, UNHCR also participated in an emergency operation of considerable magnitude jointly with UNICEF in the area, mainly to provide relief for the uprooted population. Contributions in cash and kind amounting to over fifteen million were channelled through UNHCR.
46. UNHCR was also called upon to assist Indochinese displaced persons who found themselves outside the Peninsula at the time of the hostilities or who fled their war-ravaged countries. A ten million dollar programme was put into effect to assist those in countries in South-East Asia, other than Thailand, to help solve the problems of the displaced persons through voluntary repatriation and, where this was not feasible, through resettlement in other countries or local integration.
47. a separate programme of some twelve million dollars was launched in Thailand to assist, in close cooperation with the Thai authorities, the large number of displaced persons estimated at over 70,000 in December 1975, who arrived in that country mainly from Laos, but also from Cambodia and South Viet Nam.
48. The role of UNHCR in assisting Indochinese displaced persons was endorsed by the General Assembly in resolution 3455 (XXX), adopted at its thirtieth session, which urged international support for UNHCR's humanitarian assistance to these persons.
CHAPTER III - REFUGEE LAW
49. Although refugees are to be found as far back as one cares to go in the history of nations, refugee law is a relatively recent development since it emerged from the convulsions of the First World War. Linked to the pressure of events, its appearance at that juncture also corresponded to a change in outlook, with people less inclined than before to accept human misery and suffering with resignation. Profound changes have occurred since the nineteenth century in the industralized countries, where a new law, economic and social in character, has emerged. The same ideals and aspirations have given rise to refugee law, which is directly in keeping with contemporary thinking in favour of human rights and increased protection of the individual against the "omnipotent" State.
B. Sources of refugee law
50. Refugee law originates both in national and international law, traditional and customary. There can obviously be on question of enumerating here, still less of analysing, all the national constitutions and internal legislation which make reference to refugees. We shall see the importance for such persons of the existence at existence at the national level of a specific law in their favour.
51. Law pertaining to refugees is based primarily on international treaties concluded between a number of States and binds those States vis-à-vis each other as well as vis-à-vis the refugees they shelter. It is conceivable that this treaty law might become universal as a result of the accession of all States. Although this is not yet the case, a tendency towards universality is nevertheless discernible.
52. We will leave aside the earlier agreements concluded between 1920 and 1943, which were concerned with specific groups of refugees now included in the definition of the 1951 Convention. The latter, supplemented by the 1967 Protocol, deals with refugees, whoever, or wherever they may be. It gives a general and universally-applicable definition of the term "refugee" and lists the basic rights attaching to the status of refugees. Codifying earlier provisions, it regulates the status of refugees in a more detailed manner than previous instruments did. Henceforth, there exists for Contracting States a uniform legal status for persons or groups of persons eligible for United Nations protection. The Convention also establishes a formal link between the international authority responsible for the protection of refugees and the convention defining their status. The Contracting States thus recognize the protective function entrusted to UNHCR and undertake explicitly to facilitate the performance of that function.
53. In addition to the general rules thus laid down, agreements have been concluded which relate to particular categories of refugees (refugee seamen, for example, who, because of their occupation, are faced with special problems), or to specific matters, such as copyright. Other texts, of regional scope, likewise contribute in various ways to improving the lot of refugees. Examples of such instruments are various arrangements concluded within the framework of the Council of Europe: the European Agreement and Recommendation on the Abolition of Visas for Refugees: the European Agreements and related Annexes on Social Security Schemes, and the corresponding regulations; the European Convention on Social and Medical assistance, a recommendation containing an explicit reference to the principle of the non-refoulement of refugees to a country where their lives or liberty would be threatened. A similar reference is to be found in the report of the Asian-African Legal Consultative Committee on the treatment to be accorded to refugees and in the resolution adopted at Teheran in 1968 by the International Conference on Human Rights and in the American Convention on Human Rights. All these instruments provide a most useful supplement to the basic status of refugees established by the 1951 Convention.
54. The Convention adopted by the Organisation of African Unity in 1969, was aimed at regulating specific aspects of refugee problems in Africa. It places special emphasis on the peaceful and humanitarian nature of the act of granting asylum, on the prohibition of subversive activities by refugees directed, in particular, against their country of origin, and on voluntary repatriation, which it seeks to facilitate by appropriate arrangements.
C. Refugee law in the internal legislation of States.
55. The essentially international angle from which we are considering the refugee problem here should not make us forget that, in the country of reception, a refugee lives under rules of law which apply to him in the same way as they apply to all the other members of the national community. His normal status is that of an alien, a status marked, ab initio, as inferior to that of the nationals of the country concerned. In addition to excluding him, as a general rule, from the enjoyment of political rights, the applicable law frequently subjects him to obligations or special restrictions which place him in a marginal position vis-à-vis the nationals.
56. The situation of a refugee differs, also, in another respect from that of an ordinary alien, who, by comparison, is relatively privileged. For the latter, holding a national passport, enjoys the protection of the authorities of his country, to which he may return if he so desires. This is not so in the case of a refugee. Having, in many cases, entered the country in an irregular manner, he is immediately at odds with the authorities of the country of reception, to whom he must first furnish proof of his refugee status. Often without any means of support, he is also sometimes without any papers to establish his identity, a situation which, in our modern societies, is a major obstacle to the exercise of the most fundamental rights. It was to put an and to this kind of "civil death" which was the fate of many Russian refugees after the First World War, that certain Governments took the initiative of introducing special procedures as a way out of this tragic impasse.
57. In countries which apply the Code Napoleon, even in a milder or diluted form, the status of aliens is also based on the principle of reciprocity of treatment. But the treaties which ensure the application of that principle apply only to the nationals of the countries concerned and not to persons who are refugees from those countries who have severed all links with them.
58. It was to overcome these legal handicaps which, from the outset, seriously affect the status of refugees, that in most countries of reception, a specific law adapted to the special situation of refugees gradually began to develop. Sometimes this law developed on the initiative of the countries concerned, and sometimes it originated in a convention or an international custom to which countries wished either to adhere or conform.
D. Refugees and international law
59. Many international instruments, of which the principal one at present is the 1951 Convention, provide for certain rights to be accorded to refugees. Does this mean that the refugee has now become a subject of international law, in the full meaning of the term? Obviously not. There is still a long way to go before that stage is reached. Without embarking here on a doctrinal discussion of such a debatable point as the position of the individual in international law, we shall merely make two observations. Firstly there is no supranational authority for administering justice, as a qualified court may do within a State, and, secondly, refugee law, in so far as it exists, does not include any appropriate enforcement mechanism.
60. Conversely, it is clear from international practice, as well as from the most widely accepted doctrine, that the refugee ahs ceased to be "res nullius", an expression which authors may have used to describe his former situation. A whole structure of various international instruments, foremost among which is the 1951 Convention, and of international institutions for ensuring the protection of refugees (as UNHCR does at the present time) have created the elements of a legal environment whose existence cannot be denied. The main point for us to note is that the refugee today no longer stands alone completely at the mercy of the goodwill of the State.
61. This development is certainly not divorced from the one which is tending generally towards greater assertion of the right of the individual as against the all-powerful State. From being a mere object, the individual is gradually becoming a subject of law. Although his position in international law still remains confused and controversial, a breach has undoubtedly been opened in the doctrine which held that States were the only possible subjects of international law.
62. In the case of refugees, events have somewhat hastened this process. The upheavals throughout the world since the beginning of the century have triggered massive movements of arbitrarily-displaced persons, or of persons fleeing from the battlefield, from reprisals or from an uncertain future.
63. This area has been dubbed the "century of the uprooted". However, the vast human suffering was to produce its own antidote. The innumerable individual or collective hardships, and the unspeakable sufferings of these unfortunate people provoked a wave of sympathy, and created a desire to remedy the situation, in so far as that was possible. In addition to these humanitarian concerns, there was also the interest of States in remedying anomalous situations of unprecedented dimensions which represented for them a source of trouble and insecurity and of difficulties of every kind - legal, financial, social and international.
64. It was therefore not surprising that the crusade undertaken by Nansen in 1920 met with a sympathetic response from Governments most directly concerned. Neither is it surprising that the law relating to refugees ahs made more rapid progress during the last 50 years than that relating to the individual in general. The very precariousness of the refugees' situation attracted specific action and the urgent need for that action on purely humanitarian grounds, and its limited scope since it involved a relatively small group of persons, also constituted an incentive for Governments to adopt a new course adapted to the requirements of the moment and the demands of public feeling.
65. What we may today regard as the inception of new international law cannot, of course, be dissociated from internal law. Universal norms are useful only if they are applied, and that can be done only within States. Despite an effort to achieve the uniformity which normally results from universality, there is a certain diversity in the application of these rules which is due to the traditions, the different political ad administrative structures and the economic and social fabric of each State. The right to education, for example, may not have exactly the same scope and meaning in a highly developed country as in a developing country. Nevertheless, the purpose of this international law, still in the embryonic stage, is to serve as a model, to provide an impetus and to serve as a spur to progress, as UNHCR has had many opportunities of observing in the performance of its humanitarian and social functions.
CHAPTER IV - THE CONTENT OF REFUGEE LAW
66. It is not possible here to consider the articles of the 1951 Convention one by one or to make a detailed analysis of the status of refugees resulting from the general or special instruments dealing with that subject. We shall therefore mention only some of the essential aspects of this status which affect the fundamental rights on which the existence of a refugee depends, and his possibility of escaping from a condition which is precarious and defective per se. In fact, status is not an end in itself; it is only a means of giving a legal position to a situation which has existed de facto while at the same time improving this position to enable the refugee to overcome his handicaps before being able to escape from the overall condition if possible, through voluntary repatriation or the acquisition of a new nationality.
SECTION I - ASYLUM
67. To speak of refugees is to speak of asylum, the very condition of their existence. "Asulon" in Greek, "asylum" in Latin means an inviolable place where a person who is being pursued takes refuge. Of both religious and civil origin, the privilege granted by tradition to places of worship as well as to States, in the case of persons of foreign nationality, applied to fugitives in general, irrespective of the nature of the crime or offence for which they were pursued. Thus, for a long time, ordinary criminals were not as a rule extradited. It was only in the seventeenth century that various authors, including the distinguished Dutch jurist, Grotius, drew a distinction between political and ordinary offences and held that asylum could be claimed only by those suffering political or religious persecution. Since the middle of the nineteenth century most extradition treaties recognize the principle of non-extradition for political offences, with the exception, however, of those committed against Heads of State.
B. Asylum and international law
(a) The nature of asylum
68. In current parlance, one tends to speak of the right of asylum as if it were a question of a right attaching to the individual. However, in international law a different concept has hitherto prevailed, which makes asylum a right pertaining essentially to the State. The Universal Declaration of Human Rights itself, in providing, in its article 14, that everyone has the right to enjoy asylum from persecution, in fact endorses this concept. The original text referred to the right of everyone to be granted asylum, but this wording was discarded as not in conformity with the traditional concept of asylum which each State reserves the right to grant to a refugee.
69. The Declaration on Territorial Asylum is even more explicit. Article I states: "Asylum granted by a State, in the exercise of its sovereignty, shall be respected by all other States." Clearly evident here is the main concern of States, which is to prevent the granting of asylum, although resulting from the exercise of a sovereign right the principle of which is not disputed, from being a source of disputes or conflicts between tem. The same concern is reflected in the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. After the member States have undertaken to "use their best endeavours to receive refugees", article II states that the grant of asylum "is a peaceful and humanitarian act shall not be regarded as an unfriendly act by any member state".
70. Negative in its principle, as far as the recognition of an individual's right to asylum is concerned, the attitute of states in this connection has at least one positive aspect: in endeavouring to prevent and overcome political obstacles to a liberal practice with respect to asylum, it serves the interests of refugees.
(b) The 1951 Convention and asylum
71. The 1951 Convention adopted a different course: namely silence, accompanied by some ambiguity. The work "asylum" simply does not appear in the basic instrument which defines the minimum status to be granted to refugees. Article 33, on the other hand, formally prohibits the expulsion or return ("refoulement") of a refugee "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". Does the non-refoulement rule thus laid down apply to refugees who present themselves at the frontier or only to those who are already within the territory of the Contracting State? One would like, of course, to be able to opt immediately in favour of the broader interpretation. But even then, for that to be of real value, it would be necessary to obtain the general agreement of States on which the application of a rule of such vital importance for the refugee depends. It must be recognized, however, that States do not see it this way. It is intentionally that the Convention fails to mention asylum as a right which the contracting States would undertake to grant to a refugee who, presenting himself at their frontiers, seeks the benefit of it. In fact, whenever it has been the intention of Governments to deal with asylum proper (for example, in the case of the OAU Convention and the 1965 resolution of the Committee of Ministers of the Council of Europe), they have expressly referred to rejection at the frontier, and not simply to return or expulsion, which are mentioned subsequently. There is thus a serious gap in refugee law as established by the 1951 Convention and other related instruments and it is high time that this gap should be filled.
(c) The draft Convention on territorial asylum
72. This was precisely one of the aims of the initiative that led to a meeting of a private group of experts at Bellagio in 1971 to prepare a draft Convention on territorial asylum. Subsequently, the General Assembly through its resolution 3272(XXIX) of 10 December 1974 decided that the Bellagio draft be examined by a group of governmental experts. At the very first meeting which they held at Geneva last year to discuss this draft, the governmental experts came up against the fundamental question of the admission of refugees into the territory of a State. While the original text prohibited both return at the frontier and return of a person already in the territory of a State, a distinction has again been made, at the experts' request. In the first case, States would merely "use their best endeavours" to ensure that persons requesting asylum do not find themselves denied entry into the territory.
73. The reasons for this attitude are too well known for it to be necessary to dwell at length on them. States are reluctant to make a contractual commitment of a permanent and unlimited nature in a field in which too large a part is left to the hazards of international life and the upheavals which our age is witnessing. Being responsible for the well-being of the community which they represent, they wish to retain their freedom, each one vis-à-vis the others, to determine to what extent the community can show hospitality without having to bear excessive burdens and without having to run too serious risks. This concern, which is an understandable one, would obviously have to be taken into account by those who wish to persevere in their efforts to overcome the obstacle.
74. In this connection, the draft Convention on territorial asylum incorporates two ideas which, although not new, are nevertheless particularly useful. After affirming the theoretically permanent nature of asylum, it deliberately opens the door to temporary asylum. The latter is only a makeshift solution, it is true, but at least it enables the refugee to be admitted immediately and to remain, in complete safety, until he has found a country that will take him permanently. While permanent asylum is of course recommended, the unlimited obligation which signatory States contractually assume would relate only to temporary asylum. Each state would thus retain, for the future, its freedom of choice and decision regarding the possibility of admitting refugees for permanent residence. Although such a provision would merely constitute endorsement of the common practice of countries of first asylum, which admit refugees at their frontiers without checking or prior formalities, it is likely to give rise to some of the fears responsible for the negative attitude of States. Their concern is due, as we have seen to fear of a large and unexpected influx of refugees which would jeopardize the economic, social, demographic or political equilibrium of the country involved. The only means of reassuring States in this regard would be to take steps to ensure that the burden would, if necessary, be shared by the international community or, at least, by a sufficient number of other countries. This is precisely the aim of article 5 of the draft Convention, which imposes on the signatory States an obligation to take appropriate measures individually, jointly, or through the United Nations or other international bodies, to share equitably the burden " of the receiving country". The word "burden" should probably be interpreted here as referring both the financial effort imposed on receiving countries and to the problems which might be created by the permanent admission of more refugees than could easily be absorbed. The contracting States should therefore undertake either to share in the cost of sheltering and settling the refugees or to receive a certain proportion of them, or perhaps both.
75. The idea of international solidarity in this field is not new, as it has been the basis for all international efforts to assist refugee. If the draft convention were adopted, however, the idea would gain new dimensions adapted to the needs of our time. In particular, it would furnish UNHCR with a legal and contractual foundation on which it would in future be able to base measures that today depend only on persuasion and the invoking of obvious humanitarian concern. Needless to say, UNHCR's task would thus be made much easier, without really impairing the freedom of choice of governments, since it is in full agreement with them that the ways and means of implementing a joint effort at the regional or world level would have to be determined.
76. a convention on territorial asylum would, therefore open up new prospects for dealing with a humanitarian problem which has assumed global proportions. It may, therefore, be reasonable to hope for a compromise and a correct balance between requirements which have the appearance of conflicting with one another more than they do in reality.
(d) The example of the OAU Convention
This is what the Organization of African Unity saw very clearly when it drew up the convention Governing the Specific Aspects of Refugee Problems in Africa. Africa, like Asia and Latin America, is today seriously affected by these problems. Nowhere is a joint effort more necessary to assist in solving them than in the developing countries. Reinforced by the specifically African spirit of solidarity, the OAU Convention clearly establishes the principle of mandatory co-operation between States. "Where a Member State finds difficulty in continuing to grant asylum to refugees" it may, according to article II, "appeal directly to other Member States", which shall "take appropriate measures to lighten the burden of the Member State granting asylum". This is thus definitely a contractual obligation, the practical aspects of which probably still have to be worked out but which counterbalances the obligation to provide asylum set out in article II, paragraph 3 ("No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion which would compel him to return to or remain in a territory, where his life, physical integrity or liberty would be threatened for the reasons set out in Article 1, paragraphs 1 and 2.")
C. Asylum in the internal law of States.
78. The reluctance of States to enter into international commitments in a field such as that of asylum, even though ancestral traditions in the matter correspond to the humanitarian concern which is now so manifest and so widely recognised, has not prevented some of them from adopting, within the framework of their internal legislation, measures which amount in fact to recognition of an individual right of asylum. The implications of these measures are: first, that any individual claiming refugee status would not find himself prohibited from entering the territory (or should be already be there, even in irregular circumstances, would not be expelled from it). If such prohibition or expulsion would compel him to return to the country in which he is or has well-founded fear of being persecuted; the prohibition holds good so long as no decision has been taken by a competent authority on the applicator lodged by this individual with a view to the recognition of his status as a refugee; secondly, the procedure for consideration of the application is so organized that it affords the applicant the fullest guarantees against any arbitrary or erroneous decision, and includes, inter alia, provision for appeal to a competent authority and for the refugee to be heard or represented in appeal proceedings. Thirdly, a decision that the applicant is eligible automatically means that he is allowed to stay, at least temporarily, in the territory of the State concerned.
79. These are procedures in force in countries such as Austria, Belgium, France, Italy, the Federal Republic of Germany, to mention only a few particularly obvious examples, naturally with differing methods adapted to the particular country's institutions.
80. Procedures of this type are consistent with the concept of individual eligibility, deriving, as we have seen, from the definition of the term "refugee" given in 1951 Convention and in the Statute of UNHCR. They are, by nature, intended for individual cases presenting themselves separately or in small groups at frontiers or before the authorities of a State. In the case of a sudden and massive influx of refugees, however, such procedures become impracticable and there is then no other solution than a return to a global or collective eligibility formula.
81. There is hardly a resolution adopted by the General Assembly of the United Nations relating to UNHCR which does not call for a spirit of solidarity and international co-operation in the efforts to assist refugees. Asylum provides an excellent field for practising such co-operation so as to enable established international procedures to take a further step towards recognition of an individual right to asylum. Accompanied, if necessary, by such safeguards as are considered essential by States. In developing from something purely voluntary into something institutionalized, the concept of international solidarity which governs UNHCR activities would itself gain a fresh impetus, and UNHCR's task would in consequence be greatly facilitated.
Section II - Status of the refugee
82. Having acquired refugee status and thus surmounted the first obstacle, a person fleeing from persecution is then immediately faced with the problem of his future. Without friends to guide or advise him, he has everything to learn, if not everything to fear, from a world which is too often indifferent, and alien on account of language, laws, structures and customs. Conceived for nationals, the country's legislation and administrative machinery are ill-suited for the special problems presented by such an alien. A set of rules for integration of the refugee into a system where his place is not assured in advance is therefore an absolute necessity.
83. The 1951 Convention, which defines the minimum status to be accorded to refugees, lists the principal rights which the Contracting States undertake to grant them, subject to exceptions related to each country's particular requirements. Grouped under a number of headings (general provisions, juridical status, gainful employment, welfare, administrative measures), these rights constitute the most comprehensive list yet drawn up in favour of refugees. It is not possible here to consider them all; we shall comment only on some of those which have the most direct bearing on the daily life of the refugee at the legal and practical levels, and on his lasting, if not permanent integration in the community in which he has found asylum.
A. Personal status
84. In the common law countries, personal status is that the country of domicile, whereas in Europe, for example, or in Latin America, the status of the individual is governed by the law of the country of nationality. In accordance with the rule already adopted by the Nansen Convention in 1933, the Convention provides that "The personal status of a refugee shall be governed by the law of the country of his domicile or, if he ahs no domicile, by the law of the country of his residence". The nest paragraph specifies, however, that "Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contraction State, subject to compliance, if this be necessary, with the formalities required by the law of the State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee". Thus the rule established in the interest of persons who have severed all connections with the country of their actual or former nationality does not affect the rights previously acquired by then in the latter country.
B. Access to employment
85. Among the main rights of concern to the refugee is that of free access to employment, which in practice means the right to an independent existence. In the case of wage-earning employment, article 17 of the Convention provides that the Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to aliens. In addition to this general principle there are special provisions in favour of refugees who have completed three years residence in the country, or whose spouse or children possess the nationality of that country. The latter are exempt from any restrictive measures imposed on aliens for the protection of the national labour market. There is no need to emphasize the importance of such a provision in an economic crisis accompanied by unemployment. It in practice refugees probably cannot entirely escape the tendency to accord priority to nationals in such times, at least they retain their right to work, which is not the case for ordinary aliens, who may be denied renewal of their work permit. Lastly, article 17 invites Contracting States to give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals. Such assimilation, which is normal in common law countries, is a privilege elsewhere. If it is not the universal rule it is fortunately tending to become so.
86. The provisions of articles 18 and 19 concerning self-employment and the liberal professions do not go so far. They merely refer to "treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally". It is true that under national laws the practice of some of the professions is often reserved for nationals. But, in practice, account is generally taken of the special situation of the refugee, whom Contracting States have every interest in integrating as speedily and as well as possible.
C. Freedom of movement.
87. Article 26 of the Convention proclaims the right of refugees to choose their place of residence and to move freely within the territory of the country concerned. Although the principle of the free choice of place of residence is very widely accepted, its application is sometimes hampered by the regulations on access to employment. Frequently, in fact, a work permit granted to refugees, especially new arrivals, turns out to be valid only for a specific occupation and a specific administrative district. The situation is worse in some African countries, in particular, where large groups of refugees have been settled in regions carefully chosen for collective rural settlement. In those cases in Tanzania and the Sudan, for example - there is sometimes a tendency to regard permission to stay as linked to the place of settlement where refugees are assured of being able to work and thus to support themselves, which would not be the case in just any part of the country, particularly in the towns. This situation is often compounded, moreover, by security considerations viewed, in particular, from the angle of maintaining good neighbourly relations with adjoining countries. The OAU Convention, for example, provides that refugees shall, as far as possible, be settled "at a reasonable distance from the frontier of their country of origin".
88. The main problem here seems to lie in the distinction which should be made between free choice of place of residence and freedom of movement proper, as the two are not necessarily connected. It is along those lines that a compromise might be sought, at least for the time being, between the requirements of security and those concerning the welfare of refugees, and respect for fundamental freedom. Speaking of Africa, it should be noted, moreover, that certain countries, such as Senegal, show a highly liberal attitude in this matter.
D. Travel documents
89. Since refugees do not enjoy the protection of the Government of their country of origin, they cannot claim a national passport. Only the authorities of the country of residence can make good this deficiency by issuing them a suitable travel document. Since, however, this document is of no value unless it is recognized internationally, each of the agreements concluded after the First World War to assist various groups of refugees make explicit reference to it. The 1951 Convention was no exception to this rule: its article 28 provides for the issue of a travel document, a specimen of which is included in an annex, which codifies and improves on the earlier provisions. It has a validity of one or two years and is recognized by all the States signatories to the Convention and by a large number of other countries.
90. Naturalization is the final goal of the international protection accorded to refugees, when their repatriation has proved impossible. Consequently, the convention invites the Contracting States to facilitate as far as possible the naturalization of refugees by expediting proceedings and reducing the costs of such proceedings. The problems which arise in this connection concern, in order of importance, the difficulty for the refugee to acquire the nationality of the country of reception, which even when possible in law, is sometimes accorded only with the greatest parsimony; the question of the length of prior residence, a kind of trial period imposed on aliens in general before granting them citizenship; and finally, the complexity and cost, in some cases, of the proceedings themselves.
91. Naturalization is generally regarded not as a right, but as a favour which the State reserves the right to accord, or not to accord, to persons fulfilling certain conditions and unable to avail themselves of the provisions of the country's legislation on the acquisition of nationality by the jus sanguinis or the jus soli. This leads to vast differences as regards the possibility for refugees, stateless or otherwise, to become, in their country of residence, full citizens. The attitude of Governments on this question, which is dictated by demographic or political considerations, is sometimes modified by changing circumstances and political developments within the country; it is not necessarily the same towards all refugees, and may vary according to their country of origin.
92. The duration of the period of prior residence also varies from country to country. The average period is around four or five years, but may be much longer. Quite a large number of countries have agreed, however, in the interest of refugees, to a shorter assimilation period. As for the formalities and costs connected with the proceedings, the former have frequently been eased, particularly as regards proof of loss of the former nationality, when this is required; and account is often taken of the refugee's financial situation in determining the total costs he has to bear.
93. Summing up, it may be said that, although undeniable progress has been made towards adapting the rules governing acquisition of nationality to the very special situation of refugees, much still remains to be done in this field before the regulations generally in force can be regarded as fully satisfactory.
94. A rule of law cannot be judged solely by its actual wording and purport? Everything depends on how it is applied. This fact has been confirmed by UNHCR's own day-to-day experience in performing its protection function. Its efforts to persuade Governments to make their internal legislation more favourable and equitable for refugees therefore have to be accompanied by constant vigilance, to ensure that a rule which has been adopted is not evaded, wrongly interpreted or simply ignored. This applies particularly, and above all, in such vital areas as the grant of asylum. Although these efforts are sometimes made on behalf of groups whose assimilation may present special problems, they are usually on behalf of individuals. Hence the great importance, in the country of reception, of the presence of a UNHCR representative who can know the details of particular cases and who can intervene before it is too late.
CHAPTER V - INTERNATIONAL PROTECTION
A. Origin and aims
95. The concept of international protection made its appearance after the First World War, when refugees themselves were timidly making their first entrance into international law. Precursors of the concept are to be found in the task entrusted by the League of Nations to the first High Commissioner for refugees who was instructed to define the legal status of the refugee. It was in 1930 that international protection made its official entry into the vocabulary of international affairs when the Assembly of the League of Nations requested its competent bodies to ensure the legal and political protection of refugees.
96. The formula which was thus adopted took into account both the essentially legal nature of protection and the fact that its implementation involved relations with Governments at the political level. However, when UNHCR was established in 1950, it was felt that the word "political" might cause confusion, the function entrusted to UNHCR by its Statute being defined as humanitarian and social and of an entirely non-political character. The words "international protection" were therefore preferred to the earlier formula.
97. Once refugees in general had the benefit of an internationally recognized status, as a result of the 1951 Convention and the 1967 Protocol, as well as other international instruments relating to special fields not covered by the Convention, it was only natural that the supervision of the application of this status should be entrusted to an authority that was also international in character. No one, as the saying goes, should be judge in his own case, which would otherwise have been the position of Governments. It is, moreover, in the interest of the latter that the status is applied as uniformly as possible throughout the world so as to maintain a proper balance between the different national practices.
98. Looked at from this angle, international protection would therefore appear to be a logical consequence, a sort of corollary, to the acquisition by refugees of the status of subjects of international law. But it also meets an urgent need arising both from absence of the diplomatic and consular protection usually accorded by States to their nationals abroad, and from the obviously inferior position in which the refugee finds himself as compared with the ordinary migrant. The tragic consequences which denial of asylum may have for him for example, or the mere fact of his lack of identification papers, of his possibly being denied the right to work, to education, etc., naturally called for intervention by a competent authority, which, if unable to impose its views, could at least stimulate the goodwill of governments and encourage them to promote measures designed to remedy the serious handicaps inherent in refugee status, by providing them, where necessary, with all the elements for a positive, constructive and uniform solution to the problems involved.
99. Every citizen, in his own country, may be exposed to high-handedness on the part of government officials responsible for the enforcement of laws and regulations; this is why legal recourse procedures have been established. The alien, too, is of course exposed to this risk which in his case is further aggravated by the frequent existence of special, often restrictive rules, which apply to him. But he always has the possibility, in addition to having recourse at law, of calling on the diplomatic or consular representatives of his country for help. The latter, if they consider that the internal legislation is being applied to him improperly, mistakenly or in a discriminatory manner, intervene in his favour. The refugee, by definition, does not have this last-mentioned option, although it would be more necessary for him than for anyone else. It is therefore quite naturally incumbent on the authority responsible for the protection of refugees to assert a refugee's rights and see that they are respected, in place of the diplomatic or consular authorities of his country of origin.
B. Protection and internal legislation
100. It would be a mistake to assume at the outset that refugees are deprived, in their capacity as refugees, if all protection. The act by which a person acquires refugee status, in other words the grant of asylum, is in itself a protective measure taken by the receiving country vis-à-vis the country of origin, as it was in the past by the religious authorities vis-à-vis the civil authorities. This explains, moreover, the concern of States to proclaim clearly, that the grant of asylum is a humanitarian and peaceful act which as the OAU Convention states, "shall not be regarded as an unfriendly act". Once permitted to reside permanently in a receiving country, the refugee becomes a subject of law in that country and as such enjoys the guarantees given to all persons under its jurisdiction. This basic protection ensured under internal legislation is vital, since it supports and is the essential foundation for the whole structure of international protection. International protection can only function as supplement to the protection arising from the internal institutions of the refugee's country of residence.
C. The legal basis
101. Resolution 428 (V) adopted by the General Assembly of the United Nations on 14 December 1950, which established the Statute of the United Nations High Commissioner for Refugees, instructs the latter to provide protection to refugees within his mandate. Article 8 of the Statute explains what is meant by protection and gives a detailed list of UNHCR's responsibilities in this regard. Under article 35 of the 1951 Convention, the Contracting States undertake to "co-operate with the Office of the United Nations High Commissioner for Refugees in the exercise of its functions" and in particular to "facilitate its duty of supervising the application of the provisions of this Convention". They also undertake to provide UNHCR with information and statistical data concerning the condition of refugees, the implementation of the Convention and laws and regulations in force relating to refugees.
102. The function of protection is mandatory for the High Commissioner. While the cases in which he considers that he should intervene and the way in which he intervenes a strict obligation for him, and hence he does not need, as is the case with material assistance, to receive a request from a Government before he exercises it.
103. The function of protection is not based on a genuine supranational power granted to the High Commissioner which sovereign States would be compelled to recognize and which would oblige them to heed his views and apply his decisions. This could only be so, as is the case in the special field of eligibility, if, States in their sovereignty decided really to delegate to him the power to take binding decisions on their behalf.
However, the fact that the High Commissioner is entrusted with the task of supervising and controlling the application of the Convention, together with the more general task of protection derived from his mandate, gives him an international authority which has never been challenged and which comprises an element of supranationality. The responsibilities which he has been given, with the now unanimous assent of the international community, in the field of international protection of refugees make it legitimate to look upon such protection as henceforth forming an integral part of an international law in embryo.
104. Nevertheless, in practice, the effectiveness of the High Commissioner's work depends essentially on the confidence placed in him by the international community, on whose behalf he acts. It is only the moral authority which his function confers on him that can make up for the absence of coercive power at the international level. His only weapon is persuasion. In particular, he does not have at his disposal that deterrent which States sometimes use to protect their national abroad: the threat of retaliatory measures. As is emphasized in every General Assembly resolution relating to the High Commissioner, his entire work on behalf of refugees depends on the spirit of co-operation and the willingness to co-operate shown by Governments.
D. The role of protection
105. Article 2 of the Statute states that " the work of the High Commissioner shall relate, as a rule, to groups and categories of refugees". This narrow concept of the role of the High Commissioner expressed the desires of governments at that time to put an end to the much more extensive and costly responsibilities entrusted to the two organizations which preceded UNHCR: UNRRA and IRO. The same concept is reflected in the definition of the function of protection given in article 8. By a curious paradox, while the definition of the term "refugee" is now centered on the individual, protection of refugees is conceived, basically, as work which is primarily collective and relating either to refugees as a whole, or to groups or specified categories of refugees.
106. It would be useless to look in the nine sub-paragraphs of article 8, which list the tasks in the field of protection, for an explicit reference to the protection of refugees as individuals. Was this due to a deliberate desire to prohibit action by the High Commissioner in favour of any particular refugee? Or was it simply a way of formulating in general terms in a particular historical framework, the provisions relating to protection? The practice which was immediately established, with the explicit or implicit consent of Governments, settled the question once and for all in favour of the second assumption. Moreover, it is difficult to imagine how, without failing in his humanitarian task, the High Commissioner could have taken no interest in individuals and concerned himself only with abstract entities such as categories or groups, or how he could have confined himself to the role, however important, of formulating and promoting conventions and other agreements relating to refugees or of a catalyst of charitable action on their behalf. The task of supervising the application of the provisions of the 1951 Convention which is expressly entrusted to him by the Convention would itself have been inconsistent with such a restrictive interpretation, so contrary to the raison d'être of UNHCR.
107. This defence of the refugee's individual rights, against any threat of refoulement, for example, or against any other measure affecting his fundamental and duly recognized rights, was so obviously part of the function of protection that it has never at any time been challenged, even by those Governments which have not signed the Convention.
108. Thus, alongside the essentially promotional role envisaged in article 8 of the Statute, a role which may perhaps be described as that of a legal aid has developed as the need arose. If protection in fact is a fundamental and permanent function of the High Commissioner, it is essential, however, that every refugee should feel that he is effectively and personally protected by the international authority, as he could be by a diplomatic or consular authority. Even if it cannot obstruct the sovereign power of the State which is sheltering the refugee, this possibility of recourse to an institution outside the system and external to the legal and social environment, constitutes for the refugee both objectively and subjectively, the supreme safeguard.
109. Far from losing its value with the progress of civilization, such individual protection of the refugee continues to be essential. This progress, which unfortunately does not follow a continuously upward curve, is often counterbalanced moreover, in modern societies, by the steadily increasing control exercised by the State over all human activities and by the multiplication and growing complexity of the resulting regulations. Where it is still embryonic or ineffectual, the law, in its more general manifestations, becomes a source of constant conflict between the State and the individual, and one to which refugees are most of all exposed.
110. Through its promotional aspect, international protection thus plays a part, directly or indirectly, in the creation and formulation of refugee law, at both the national and the international levels. As regards contentious matters, it assumes its everyday aspect of defender of the rights of the refugee having to come to terms with his environment and faced with the difficulties inherent in his refugee status. These two aspects are of course complementary and linked and strengthen one another.
CHAPTER VI - UNHCR - ITS FUNCTION - DEVELOPMENT OF RELEVANT LAW
Section I - the Institution
111. The task entrusted to UNHCR in 1950 is defined in article 1 of the Statute of the Office as follows: The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting Governments and, subject to the approval of the governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities. In the exercise of his functions, more particularly when difficulties arise, and for instance with regard to any controversy concerning the international status of these persons, the High Commissioner shall request the opinion of the advisory committee on refugees if it is created".
112. As an institution, UNHCR is directly responsible to the General Assembly. It is one of the latter's subsidiary organs established under article 22 of the Charter, on the same basis as such bodies as UNICEF, UNRWA and UNDP. In 1949, when the United Nations decided to assume general responsibility for international action in favour of refugees, two possibilities were open to the Assembly: to entrust this work to a department of the United Nations Secretariat or to establish, within the administrative and financial framework of the United Nations, an ad hoc body capable of acting independently. On the proposal of the United Nations Secretary-General, the latter formula was adopted. The reasons for this are simple. In order to be able to perform adequately and efficiently a task whose importance and difficulty everyone recognised, it was preferable for UNHCR to remain, as far as possible, outside the fray, remote from the political debates to which the United Nations Secretariat is naturally exposed.
113. In addition to this main concern, there was a second important consideration. In his dual role of "redresser of wrongs" and perpetual petitioner, the High Commissioner had to have the maximum authority and prestige. And who better to confer them than the General Assembly itself, the spokesman of the international community? Since it derived its power from the Assembly, on which the direction of its general policy depends and to which he reports every year, the High Commissioner therefore had the greatest possible asset for his continuing task of defending the rights and interests of the uprooted and finding permanent solutions to the many different problems with which they are faced.
114. Article 1 of the Statute assigns UNHCR two fundamental functions: that of providing international protection and that of seeking permanent solutions for the problem of refugees. We have already dealt with the protection function earlier. As for permanent solutions Article 1 enumerates two :a) voluntary repatriation or b) assimilation within a new national community.
115. UNHCR has a dual role in relation to repatriation to ensure that it is voluntary and then to facilitate it. Forced repatriation would be tantamount to expulsion, which is expressly prohibited by the Convention and by international custom. Repatriation assistance may take various forms depending on circumstances. Sometimes, UNHCR endeavours to prepare the ground, if necessary by freely accepted contracts between refugees and authorities of the country of origin; sometimes it helps refugees to obtain visas; and sometimes it bears the cost of the refugee's return travel to his country or, in the case of large groups of refugees, organizes such travel in co-operation with the countries concerned. We shall revert later to this aspect of UNHCR's activities, which has fortunately shown a steady increase in recent years and in which there have been interesting developments as regards the competence ratione materiae of UNHCR. We shall confine ourselves, at this stage, to emphasizing that the free choice of the refugee remains the key element of repatriation, and this precludes any element of pressure from whatever quarter. Obviously, UNHCR has, as part of its task of protection, to ensure that in no case is any pressure exercised.
116. If voluntary repatriation proves impossible, the only other solution is assimilation. The final aim of assimilation is the acquisition of a new nationality; however, the refugee may claim this only on certain conditions and only after a certain period, which varies from country to country, has elapsed. In the meantime, he must pass, not without difficulty, through the intermediate stages of integration - economic, social and to some extent cultural. This integration, whether it take place in the country of first reception - what has become known as local integration - or in a country known as the country of resettlement, is conditioned by a number of factors on which its success depends. The vain ones are legal favours connected with the enjoyment of certain fundamental rights to which we have previously referred.
117. The economic, social or demographic context of the country of reception, with the possibilities which it offers for, or the obstacles which it places in the way of, rapid and smooth integration is of fundamental importance. Other factors are the capacity of the refugees themselves, their age, occupation, state of health and ability to adapt to an entirely new society. The very fact of being uprooted can be a stimulus for some people, while for others it is a discouraging and inhibiting factor. Wherever it takes place, therefore, assimilation is not a dimple and easy operation. It is a test of will for the refugee and it calls for understanding and organization on the part of the country of reception. It also involves a financial effort which may be well beyond the financial resources of the country concerned. What would happen if the country of asylum was unable to assume that burden itself and the international community refused to come to its assistance?
B. Material assistance
118. Obviously, this problem can be solved only if a parallel and co-ordinated effort is made by other nations. It could be said to be a matter of fairness to the countries of reception, which are bound in observance of their laws, their commitments or their principles, and out of regard for the international community, to receive in their territory refugees coming to their borders. For the refugees, it is a matter of humanity to which the universal conscience cannot remain indifferent. Unfortunately, although it is simple to define and justify in principle, this effort of international solidarity sometimes involves more difficulty in practice. This is particularly so when in order to solve a particular problem, extensive recourse has been had over many years to the assistance of what is, in effect, a limited number of countries. Although they are swift to respond when the tranquillity of their consciences is shaken by a serious and sudden upheaval, people tend to forget sufferings which are drawn out and lasting.
119. In order to comprehend the reasons for the quite secondary importance given to material assistance in the original Statute of UNHCR, one should recall the situation at the time the Office was established. As the heir of two organizations which had had considerable financial resources and had been given the onerous task of housing, feeding, assisting and repatriation or resettling millions of persons who were refugees or were displaced as a result of the Second World War, UNHCR was given only a modest share of those numerous activities. The year was 1950 and the main contributing Governments were showing signs of impatience and weariness. They wished to put an and to measures which were by definition temporary and geared to an exceptional and urgent situation which they regarded as being largely past. To them the time seemed to have come for a return to traditional standards involving the basic, if not exclusive, responsibility of each State toward the refugees whom it was sheltering. Consequently, in the Statute of UNHCR, the role of the Office to provide financial help to countries of reception or, material assistance to refugees was minimized.
120. The door was, however, left open for occasional and limited material assistance, and article 10 of the Statute authorizes the High Commissioner to administer any funds which he may receive from public or private sources. But it was specified that he could not appeal to Governments, in other words, that nothing now or important could be undertaken in that sphere without the prior approval of the Central Assembly.
121. As often happens, events very soon brought about a substantial change in that optimistic approach, when thousands of refugees still remained in camps. After some hesitation marked by resolutions in which the existence of major and urgent assistance requirements was recognized without any practical consequences being drawn, the Assembly decided in 1954 to authorize the High Commissioner to undertake a programme of permanent solutions. To finance the contribution from Governments. Three years later, an Emergency Fund was established to meet the most urgent needs and an Executive Committee was set up to advise the High Commissioner on his activities in that sphere. Material assistance, originally a "poor relative", was gradually to assume the importance which human needs and common sense conferred upon it within the general context of UNHCR activities.
Section II - The evolution of law
122. The past decade has witnessed many events which have given rise to problems of refugees and displaced persons, some of them very sizeable. In many respects, and if only because of the special context of the developing countries in which the majority of these problems now occur, it has proved difficult to deal with them within the rigid rules established for European refugees in 1950. In order to enable the High Commissioner's Office to continue to discharge its humanitarian mission fully, as Governments wished, the criteria for intervention by the Office have had to be modified in keeping with changing requirements. What we now intend to examine is the way in which those criteria have been altered and the outcome, in terms of law, of a process of evolution which has enabled it gradually to adapt its activities to the demands of the moment.
A. Competence "ratione personae" :its expansion and the gradual return to unity of competence
123. The general definition of the term "refugee" contained in the Statute reflects the strictly individualistic thinking which prevailed at the time it was drafted: claiming personally to be the victim of persecution, which he is required to prove, each refugee must be screened in order to be eligible for assistance under the High Commissioner's mandate and the 1951 Convention. The ensuing decision governs first and foremost his entitlement to the right of asylum and also, in principle, the right of the High Commissioner's Office to intervene on his behalf. Strictly interpreted, this concept could be considered to exclude from the High Commissioner's mandate refugees or groups or refugees whose circumstances made it impossible to verify their eligibility individually. This exclusion, which would have meant a denial of justice to these groups, was the unwitting result of a concept of "refugee" inspired by the specific circumstances, and was certainly not linked to a deliberate will to prohibit the High Commissioner from collective action for the benefit of these groups. A prohibition of this kind would, moreover, have been at variance with the rule contained in article 2 of the Statute, whereby his work "shall relate, as a rule, to groups and categories of refugees". Short of amending the definition of the term "refugee", which was certainly not in anyone's mind, the problem was therefore that of unravelling the juridical entanglement - a task which the Assembly alone, as the sole legislative body of the United Nations, could undertake.
(a) First stage: refugees not within the competence of the United Nations: use of good offices by the High Commissioner
124. In 1959 came the first step towards this goal: in General Assembly resolution 1388 (XIV) of 20 November 1939, a distinction was drawn for the first time between refugees within the mandate and "refugees who do not come within the competence of the United Nations", in respect of whom the High Commissioner was authorized to use his good offices in the transmission of contributions designed to assist them. General Assembly resolution 1167 (XII) of 26 November 1957 had already mentioned the High Commissioner's good offices as regards the Chinese refugees in Hong Kong. There, however, the action of the High Commissioner's Office had been strictly confined to a specific group, and had also been of clearly limited scope. Passing from the particular to the general, the 1959 resolution thus extended the use of the good offices, transforming their application into supplementary means of action whereby the High Commissioner could henceforth transmit contributions on behalf of any group of refugees not "within the competence of the United Nations".
125. The 1959 resolution does not say why such refugees were excluded from the General Assembly's original mandate to the High Commissioner's Office. On the occasion of the sudden and massive exodus of some 200,000 Hungarians in 1956, for whom no individual eligibility procedure was feasible, at least not immediately, the question whether or to what extent the High Commissioner's Office was competent to intervene had in fact arisen. The removal of the legal and institutional barrier to his action was accomplished by General Assembly resolutions expressly requesting the High Commissioner to intervene.
126. A similar difficulty confronted the General Assembly and the High Commissioner's Office when the Assembly invited the High Commissioner to intervene for the first time in Africa; this too was resolved by an express decision of the General Assembly. The general circumstances of developing countries and the total absence of the requisite administrative structures excluded, even more clearly than in the case of the Hungarians, any possibility of instituting a procedure for determining the individual eligibility of the 180,000 or so Algerians who had taken refuge in Tunisia and Morocco during Algeria's struggle for independence. Also the need for such a procedure was all the less apparent as the refugees in question were already benefiting from a right of asylum which had been granted to them en masse and which no one had nay intention of disputing. What they did need, however, was large-scale assistance in the form of food, clothing, shelter and so on.
(b) Second stage: expanded use of the High Commissioner's good offices
127. In 1961, a new expression appeared in both the general resolution for that year and the resolution concerning the Angolan refugees. It reiterated in broader terms the notion of the High Commissioner's good offices. There is no longer any mention of "refugees who do not come within the competence of the United Nations", nor is the use of good offices confined to the transmission of contributions. Hence resolution 1673 (XVI) of 18 December 1961 requested "the United Nations High Commissioner for Refugees to pursue his activities on behalf of the refugees within his mandate or those for whom he extends his good offices". Here we have side by side for the first time two categories of refugees whom the High Commissioner's Office may assist. The verbal distinction between groups of refugees for whom the High Commissioner "extends his good offices" and those who come strictu sensu within his mandate remained until 1964.
128. A concept of collective prima facie eligibility, prompted by events, thus gradually took shape. It departed from the individualistic concept linked to the definition of the term "refugee" in the Statute and Convention, and progressed towards a more pragmatic and humane rather than legalistic approach to the refugee problem.
(c) Third stage: integration of the High Commissioner's good offices, and of the groups of refugees concerned, into the regular activities of the Office
129. The final integration of the High Commissioner's good offices and hence that of new groups of refugees, into the regular mandate was reached in 1965: in resolution 2039(XX) the General Assembly, abandoning the distinction between refugees within the mandate and refugees covered by the High Commissioner's good offices, simply requested "the United Nations High Commissioner for Refugees to pursue his efforts with a view to ensuring an adequate international protection of refugees and to providing satisfactory permanent solutions to the problems affecting the following year confirmed this return to a unified responsibility for the different kinds of refugees by requesting the High Commissioner "to continue to provide international protection to refugees who are his concern, within the limits of his competence, and to promote permanent solutions to their problems". The explicit reference here to both protection and permanent solutions, a feature which is repeated in the corresponding resolutions for the next three years, leaves no room for doubt as to what the General Assembly had in mine: to eliminate the temporary distinction between two very closely related categories of refugees who, at least collectively, meet the essential criteria for treatment as refugees specified in the mandate. Henceforth, both categories were entitled to receive protection and assistance from the High Commissioner's Office, inasmuch of course as they needed them.
(d) Fourth stage: displaced persons: their gradual integration into the High Commissioner's mandate
130. Matters would probably have gone no further, at least for the time being, if an important problem had not arisen with regard to Sudanese refugees, for whom the Addis Ababa Agreement finally opened up prospects of a return to their own country. To facilitate the speediest possible repatriation of the 150,000 Sudanese who had taken refuge in neighbouring countries, and to help those who had fled to the interior to return to their homes, the General Assembly mentioned refugees and displaced persons side by side for the first time in the history of the High Commissioner's Office. That was in resolution 2958 (XXVII) of 12 December 1972. The fact that the General Assembly was again dealing with a specific group could not be taken to mean that it had at the time the intention of generalizing from this case to that of displaced persons as a whole. However, as we will see later, circumstances required UNHCR to be called upon to provided assistance in various parts of the world to large groups of displaced persons - victims of events over which they had no control. The gap, in institutional terms, was, bridged by resolution 3454 (XXX) of 9 December 1975, in which the preamble specifically reaffirmed "the eminently humanitarian character of the activities of the High Commissioner for the benefit of refugees and displaced persons". This resolution was thus intended to re-establish the comprehensive character of the competence which had been the feature of the United Nations activities during the first years of its existence. Its terms infer that the high Commissioner's Office could take action on behalf of large groups of people who may not all conform to the conventional definition of a refugee but are in a situation analogous to that of refugees. For example, they are victims of man-made events over deprivation or uprootedness as the result of sudden upheaval and separation from their homes. The reasoning behind this evolution would appear to be that cut off from their origins and scattered or brought together again by circumstances in one place, or another, these displaced persons clearly need some form of international assistance.
B. Competence rationae materiae
131. There has never been any exhaustive enumeration of the means by which the High Commissioner's Office can provide material assistance. That was intentional. Only the general objectives for its assistance activities were defined in the Statute: to find permanent and speedy solutions to the problems of refugees. The solutions were themselves classified under three main headings: voluntary repatriation, local integration, and resettlement in another country. These basic objectives have bee restated like a leitmotiv, in every annual resolution of the General Assembly dealing with the High Commissioner's Report. The relative importance of each of these solutions has in fact varied according to circumstances and the internal, political, economic and social situation of the countries concerned, but no fundamental change of purpose or method has occurred with respect to UNHCR's activities in the assistance field.
132. On the other hand, an evolution has recently occurred in respect of the scope of the High Commissioner's actions, hitherto relatively limited, which have grown to match the increasing humanitarian problems of today's world. This process has been closely linked to the one we have traced in respect of the High Commissioner's role and competence "ratione personae".
(a) Assistance to Repatriated Persons as a Corollary to Repatriation Assistance
133. In view of the unwanted proportions it has assumed, the repatriation of tens or hundreds of thousands of persons revealed a new problem of sometimes alarming scope - that of resettling refugees or persons displaced within their own country. Africa and Asia can justifiably claim tribute for their efforts in this field, since they have successfully transformed into an everyday, rather than an exceptional event, what has always been heralded as the best and most desirable solution, but whose implementation was frequently paralysed for want of the conditions required to ensure its voluntary character. But how, without help, can developing countries, sometimes ravaged or weakened by a long and bitter war, assimilated reasonably quickly vast masses of human beings anxious to return to their homelands.
134. In 1961, the General Assembly asked the High Commissioner t facilitate the return to their homes of refugees from Algeria, and also requested him for the first time to " consider the possibility, when necessary, of facilitating their resettlement". This first example was followed by others: the millions of Bengalis, and then the Sudanese, in whose case the General Assembly requested not only their return but also their "rehabilitation and resettlement". The same formula, but wider in scope since it applies to all refugees "from Territories emerging from colonial rule", appeared in General Assembly resolution 3271 A (XXIX) of 10 December 1974. The principle of an expanded role for the High Commissioner's Office in respect of repatriation - provided, of course, this is called for by the circumstances, and particularly by the economic and social situation of the country of return - can be regarded as a virtually established one from then on. The fact that the High Commissioner's Office, after assisting refugees outside their own country, may be called upon to facilitate not only their return to that country but also their resettlement in it underscores the purely humanitarian nature of the Office's activities.
(b) The co-ordination of major humanitarian tasks
135. The need for active co-operation and increasingly extensive co-ordination among United Nations agencies has long been a favourite topic for government representatives in the General Assembly and the Economic and Social Council, and rightly so. It is echoed each year in the General Assembly's resolution on the High Commissioner's report. There is nothing surprising in this. Under paragraph 8 of the Statute, the High Commissioner has the task of co-ordinating the efforts of organizations concerned with refugee welfare. As far as assistance is concerned, but not protection, such co-ordination was considered a sine qua non for the work of the High Commissioner, deriving from the work of international and human solidarity which he is required to promote.
136. As long ago the Hungarian exodus in 1956 the General Assembly invited the Governments and non-governmental organizations participating in the aid and resettlement work to "co-ordinate their aid programmes in consultation with the Office of the High Commissioner". Recent world events have hastened the move towards strengthened co-ordination of action undertaken by the entire United Nations system, while the High Commissioner's engagement in activities of an exceptional scope have resulted of his role. For example between March and December 1971, it was estimated by the Government of India that some 10 million East Bengalis had fled into the neighbouring Indian region, mainly West Bengal. A humanitarian operation of exceptional scope was required. The High Commissioner was called upon by the Secretary-General to co-ordinate the overall humanitarian operation - a decision soon confirmed by the General Assembly. This undertaking was to test UNHCR's ability to handle, in close and regular consultation with the various agencies and programme of the United Nations system, diverse and complex situations in an atmosphere of considerable tension.
137. The outcome would appear to be successful, for in 1972 the Assembly requested the High Commissioner to "continue to participate, at the invitation of the Secretary-General, in those humanitarian endeavours of the United Nations for which his Office has particular expertise and experience". The reasons for this choice were given in General Assembly resolution 3143 (XXVIII) of 14 December 1973 in which, after referring to "essential humanitarian actions", the Assembly mentioned "the increasingly useful co-operation between the High Commissioner and other members of the United nations system, resulting in better co-ordination of action and greater efficiency in fields of common interest", The new function for the High Commissioner's Office which emerged from these resolutions was confirmed by the General Assembly in 1974, when it included among the High Commissioner's duties "his special humanitarian tasks", and requested him to report to the Executive Committee on these tasks in the same manner as on his regular programme.
138. Thus one moves on again, pragmatically, from the particular to the general, on the basis of situations which had justified the decisions of the Assembly when it had, in specific circumstances, entrusted UNHCR with co-ordinating certain humanitarian operations. This has just been confirmed by the Economic and Social Council which, in a resolution adopted on 2 August 1976 requests the High Commissioner "to continue his activities in co-operation with governments, United Nations bodies, appropriate intergovernmental organizations and voluntary agencies, to alleviate the suffering of all those of concern to his Office". Such persons are themselves specified in the preceding operative paragraph of this resolution as "refugee and displaced persons, victims of man-made disasters, requiring urgent humanitarian assistance". Hence, the co-ordination function, previously performed by UNHCR from time to time, henceforth becomes an integral part of its enlarged competence, as defined in general terms by the Assembly and ECOSOC. This new dimension in the High Commissioner's activities is further confirmed, in clear terms by the ECOSOC resolution of 2 August 1976 where the Council recognizes "the importance of essential humanitarian tasks undertaken by his Office in the context of man-made disasters in addition to its original functions".
139. The High Commissioner can, of course, initiate activities only within the frame of the criteria governing his humanitarian action. In so doing, he must also take into account the provisions of article 17 of the UNHCR Statute, which provides that: "The High Commissioner and the Secretary-General shall make appropriate arrangements for liaison and consultation on matters of mutual interest". In view of their manifold implications, of their scope and of their very nature, the overall activities of UNHCR concern the United Nations system as a whole. The Secretary-General should therefore be in a position, when necessary, to exercise his prerogatives in the field of United Nations co-ordination at the highest level.
140. Such has been the legal and factual context surrounding a development based on a global approach to the problems of refugees and displaced persons; an approach which naturally led to the re-establishment of the unified responsibility which featured in the very first years of United Nations action for the uprooted. In taking this course, the General Assembly was undoubtedly reflecting trends which are now being consolidated in numerous spheres. Today, everything - modern management techniques, technological progress, and the ever-growing awareness of the interdependence of problems at the world level - serves to encourage the search for global and concerted solutions, and this entails at identity of views and intent, even if there is no unity of action. But the General Assembly may have been motivated also by more immediate and specific considerations. For example, by a concern for speed, efficiency and economy: to save human lives or end unbearable suffering, action must be prompt and it must be known in advance who will take the initiative to mobilize the efforts and resources available.
Section III - The new criteria for action by the High Commissioner's Office
141. What, then, are the criteria for action by the High Commissioner's Office in situations of concern to his Office covered by the overall competence of UNHCR? They are mainly three in number:
(i) The needs to be met and the necessary action to be undertaken should be of a strictly humanitarian and non-political character.
(ii) A request to the High Commissioner's Office from the Government or Governments directly concerned. There are two reasons for this requirement:: whatever the circumstances, nothing can be done without the consent and co-operation of Governments themselves, which are sovereign in their own territories: moreover, their sovereignty implies responsibility, which is expressed in a Government seeking help from the High Commissioner and then participating in the execution of projects established by and in agreement with his Office. It goes without saying that this rule applies to material assistance, not protection, an area in which action by the High Commissioner cannot be subject to Government request.
(iii) The status of the persons for whom the assistance programme is to be implemented. There is obviously no problem when the persons concerned are groups of refugees within the definition of the UNHCR Statute. In other cases, there is one condition: the beneficiaries of the assistance programme must be in a situation analogous to that of refugees. In other words, their hardship must arise from an uprooting, a displacement beyond their control, resulting from events or circumstances attributable to a man-made disaster. Such situations are often the result of international conflict, civil war, general political and social upheavals, etc.
142. In the context of special operations, these fundamental elements which constitute the basis of UNHCR's intervention, must be supported by circumstances in which the general consensus of the international community is already, more or less, present. In addition, obviously, a social effort to ensure a co-ordinated approach of the United nations system, with the support of the Secretary-General is always useful.
143. One can see that none of these criteria is entirely new. The novelty lies rather in their application to a range of situations which are far more varied than those originally envisaged and which do not necessarily belong to the earlier narrow framework of UNHCR's activities related to persons fearing persecution for reasons of race, religion, nationality or political opinions. The overall criteria just enumerated undoubtedly reflect an extension in UNHCR's competence as regards persons benefiting from its assistance, since the category of displaced persons is now added to that of refugees. It is also an extension to the extent that UNHCR is increasingly called upon to co-ordinate important humanitarian programmes of the United Nations arising out of man-made disasters and whose principal characteristic is that persons affected by such events are, as a result, uprooted and find themselves in a situation analagous to that of refugees.
144. In face of the all too apparent increase in the frequency and seriousness of problems of refugees and displaced persons, the expanded competence of the High Commissioner's Office constitutes a coherent whole enabling the Office to make the best possible use of its long experience and of all the possibilities which the United Nations system as a whole offers in this special field.
Section IV - the High Commissioner's good offices: return to the original concept
145. What place does the institution of good offices have in this new scheme?
Although it rendered much valuable service as a flexible and convenient means of action, it proved somewhat difficult to adapt to events as adequately as their pressure demanded. In the past, it enabled the High commissioner to intervene on behalf of a few marginal groups and later to assist the masses of refugees who could not individually be verified for eligibility but could be presumed to be eligible for help collectively. Now, however, they all come within the general category of refugees and displaced persons, so that there is no longer any need for the device of good offices in order to help them. With its expanded and unified framework of competence, the High Commissioner's Office is now equipped to take action needed to deal with the various situations resulting from man-made disasters where the Office's assistance may be called for.
146. That being so, should the notion of good offices be completely abandoned and dropped altogether from the day-to-day language of the High Commissioner's Office? If that happened, it would be a disservice to the institution of good offices as constantly interpreted in international life. The institution remains as useful as ever for contingencies and situations on the fringe of the normal activities of the High Commissioner's Office. These may relate more to diplomacy and the role of "intermediary of good will" which the High Commissioner is sometimes called upon to play. For example, discreet approaches are sometimes made by UNHCR in the hope of easing a situation involving refugees or displaced persons. Similarly, using the tool of "quiet diplomacy" the High Commissioner is often required to ease the tensions that arise inevitably between the country of origin and the country of asylum. His task then consists in depoliticising refugee situations and putting them into a purely humanitarian context so that they do not continue to be contentious. In Africa, for example, the removal of refugees from border areas is one of the practical methods used for this purpose. Similarly, maintaining good relations with both countries of origin and the countries of asylum, in the context of universalisation of its humanitarian vocation, enables UNHCR to "contain" a refugee situation. This atmosphere also promotes eventually with the evolution of circumstances, the voluntary repatriation of refugees which ism by far, the happiest of permanent solutions.
147. From the viewpoint of institutional law, this decade will have left an indelible mark on UNHCR. Under the pressure of events, some of them momentous, the Office has acquired a new dimension which reflects better the requirements of the modern age. The General Assembly has step by step, in the light of experience, consolidated the competence of the institution which it created in 1950 and has now expanded its activities to make the High Commissioner's Office a principal instrument of its humanitarian policy for dealing with one of the most acute and distressing problems of our age.
I. U.N. DOCUMENTS
Convention and Protocol relating to the Status of Refugees; HCR/INF/29/Rev.2
Signatures, Accession and Ratifications to the Convention - Declarations and Reservations made by Parties to the Convention Doc. HCR/DC.3/Rev.12, HCR/DC.3/Rev.12/Add.2
Statute of the Office of the United Nations High Commissioner for Refugees; HCR/INF/1/Rev.2
United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons; UN Doc. Series A/CONF.2
Final Act, United Nations Conference on the Status of Stateless Persons and the related Convention; Doc.E/CONF,17/5/Rev.1
A Study of Statelessness, Lake Success, 1949, Doc.E/1112 of February 1949 and E/1112/Add.1 of 19 May 1949
Draft Convention on Territorial Asylum, extract from Report of the Secretary-General A/10177
United Nations Resolutions and Decisions relating to the Office of the United Nations High Commissioner for Refugees; HCR/INF/48/Rev.2
II. WORKS AND ARTICLES
Aga Khan, Sadruddin, Asylum - Article 14 of the Universal Declaration of Human Rights, JICJ, 8(2), Dec. 1976: 27-33.
- Refugees and Human Rights, WFUNA-FMANU Bulletin, 22 1967-68: 47-52.
- What Remains to be done to Further Refugees' Human Rights? MN, 5 Sept-October 1968: 4-7.
Balgh, E., World Peace and the Refugee Problem, Recueil des Cours, Paris, vol. 75, 1949, pp. 363-507.
Brooks, Hugh C. and Yassin El-Ayouty, eds., Refugees South of the Sahara: An African Dilemma, Westport, Conn: Negro UP, 1970
Diallo, Issa Ben Yacine, Les Réfugiés en Afrique cadre régional et intentional de règlement. W. Braimüller. Wien, 1974.
Drost, Pieter N. Human Rights as Legal Rights.: Leyden, Sijthoff, 1951. 272.
Garcia-Mora, Manuel R.: International Law and Asylum as a Human Right. Washington Public Affairs Press, 1956. Vi. 171.
Grahl. Madser Atle, The Status of Refugees in International Law. Vol. 1 Refugee Character. A.W. Sijthoff. Leyden, 1966. Vol. II. Asylum, entry and Sojrun. A.W. Sijthoff. Leyden, 1972.
- An International Convention on Territorial Asylum: Background, discussion, Proposals. Norges Handelshoyskole. Bergen, 1975.
Green, L.C., "The Individual and his Status in International Law", I IJIL 415-428 (1961).
Hambro, E., The Problem of Chinese Refugees in Hong Kong. Leyden, 1955.
Heuven Goedhart, G.J. van., The Problem of Refugees, Recueil des Cours. Leyden, Vol. 82, 1953, pp. 261-371.
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 c.f. Resolutions 538 (VI) and 728 (VIII) concerning emergency aid, Resolution 832(IX) concerning the Programme of the United Nations Refugee Fund and Resolution 1166 (XII) concerning the implementation of a current annual programme.
 As later explained, UNHCR's assistance to displaced persons, as distinct from refugees, became part of UNHCR's activities from the early 1970s
 c.f. Resolutions 1286 (XIII), 1889 (XIV, and 1500 (XV).
 " Use the means at his disposal to assist in the orderly return of those refugees to their homes and consider the possibility, when necessary, of facilitating their resettlement in their homeland as soon as circumstances permit; "
 Since by definition a person may be considered a refugee only once he is outside his country of origin, assistance within his country of origin had not hitherto been provided in the frame of UNHCR assistance programmes. A precedent was thus created which subsequently led to further similar action.
 these refugees were assisted by UNHCR as they came within its sphere of competence and also on the basis of the various resolutions whereby the General Assembly requested UN agencies to contribute towards decolonization and to assist the liberation movements to that end.
 See also Resolutions 1705 (LIII), 1741 (LIV), 1799 (LV), 1877 (LVII).
 c.f. A/AO.96/511, para. 80 (m).
 Res. 1006 (ESII) of November 1956 and 1039 (XI) of 23 January 1957.
 Res. 1286 (XIII) of 5 December 1958, 1398 (XIV) of 20 November 1959, 1500 (XV) of 5 December 1960 and 1672 (XVI) of 18 December 1961.
 General Assembly resolution 2956 A (XXVII) of 12 December 1972
 General Assembly resolution 3271 A (XXIX) of 10 December 1974
 ECOSOC resolution 2011 (LXI) of 2 August 1976