Note on International Protection (submitted by the High Commissioner)

A/AC.96/491

A comprehensive account in regard to International Protection up to 31 March 1973, is given in the High Commissioner's Annual Report to the Economic and Social council (E/5378). The present note includes the main developments which have taken place since that date and highlights certain protection problems for which a solution is urgently required.

Developments since 31 March 1973

2. In April, Australia acceded to the Refugee Seamen's Agreement of 1957. In June, the Netherlands' Minister for Foreign Affairs signed a Protocol to this Agreement which extends its application to post-dateline refugee seamen covered by the 1967 Protocol relating to the status of refugees. The Protocol to the Refugee Seamen's Agreement will be opened for signature in the near future. At the regional level, two further States, Zaire and Guinea, have acceded to the OAU Convention of 1969 relating to the specific problems of refugees in Africa, bringing to 11 the total number of parties to it.

3. As regards implementing measures, the Kenya Immigration Act of 1972 entered into force on 15 May. This Act provides that refugees as defined in the 1951 Convention relating to the Status of Refugees may be granted a new type of residence permit enabling them to engage in any occupation, trade, business or profession.

Outstanding Problems

4. Despite the progress achieved in developing and strengthening the legal framework of international protection and in the adoption of implementing measures at the national level, a number of important problems, indicated below, remain unsolved. The need for adequate solutions to them has been particularly noticeable during the period under review.

(a) International instruments established for the benefit of refugees

5. The minimum standards for the treatment of refugees are defined in various international instruments established for their benefit. Since these instruments constitute the legal framework of international protection, they form an essential basis for the effective exercise of this function. The Office has therefore continued its efforts to promote accession to these instruments, notably the 1951 Convention and the 1967 Protocol relating to the status of refugees. While 64 States are now parties to the Convention and 53 States to the Protocol, there are still some significant exceptions and attention has on several occasions been drawn to the need for filling this lacuna. In the first place, several States with sizeable refugee populations on their territories have not yet acceded to either instrument. Secondly, certain areas of the world are unrepresented among the States parties to these instruments. A number of States in each of these categories have been considering accession for some years but have not yet seen their way to adhere to these instruments.

6. The need for accession is admittedly more urgent in the case of countries with refugee problems on their territory, but it also exists in other countries where refugee problems might emerge and might require swift action. Moreover, widespread accession to the Convention and to the Protocol, would emphasize their universal character and would thus enhance their value and effect. The slowing down of the rate of accessions has now continued for several years and the needs for a fresh breakthrough - particularly in the case of States already confronted with refugee problems - is becoming increasingly apparent. It is therefore hoped that earnest consideration will be given to this matter so that further progress may be recorded in the near future.

7. An important regional complement to the 1951 Convention and the 1967 Protocol is the OAU Convention of 1969 relating to the specific aspects of refugee problems in Africa. Eleven States have now become parties to this Convention, the importance of which is well known to governments, especially in so far as it defines the various principles relating to asylum in a detailed and comprehensive manner. It is to be hoped that the two further ratifications required to bring this Convention into force will be forthcoming in the near future.

8. In the context of the High Commissioner's efforts to help refugees to cease to be refugees through the acquisition of a new nationality, mention should be made of the 1961 Convention on the Reduction of Statelessness. This Convention, by enabling stateless refugee children born in the territory of a contracting State to acquire that State's nationality, will help to avoid the perpetuation of refugee status into the second generation. Five States have now acceded to it, and only one further accession is necessary to bring this Convention into force. It is therefore hoped that this important goal - which has been awaited for some considerable time - will shortly be attained.

(b) Problems involved in the implementation of the 1951 Convention and 1967 Protocol

9. The adoption of appropriate national legislative and/or administrative measures is frequently essential to enable refugees to take full advantage of the international standards established for their benefit and the Office, therefore, continues to devote particular attention to the problem of implementation. Considerable progress has already been achieved in this matter, in that a number of States have adopted implementing measures in regard to their obligations under the 1951 Convention and 1967 Protocol, and the adoption of implementing measures by other States will certainly contribute to the more effective enjoyment of basic rights by refugees.

10. The need for adequate implementing measures is especially urgent as regards procedures for the determination of refugee status which are of particular significance in the content of asylum. An applicant for refugee status must be given an opportunity to have his claim examined in a fair and sympathetic manner through a procedure offering the necessary legal guarantee, including the right of appeal. Experience has shown that in the absence of such a procedure there is always a risk that the special situation of the asylum seeker may not be taken into account. His case may be referred to the ordinary police authorities, who may not have the necessary specialized knowledge and understanding of his problems, and he may be treated as an ordinary alien seeking to enter or to remain in the State's territory. Procedures for the determination of refugee status, in which the Office participates in varying ways, have been established in a number of States, some of them in Africa. There are countries, however, some of which face a regular influx of asylum seekers, where the absence of such procedures still creates serious problems. The need for them is borne out by the special difficulties encountered by asylum seekers described in the following section.

11. At its 19th session the Committee endorsed a proposal by the High Commissioner to address to States parties to the 1951 Convention and/or the 1967 Protocol a questionnaire concerning the measures taken by them to implement their obligations under these instruments. Such questionnaires have been addressed to 63 States and replies have been received from 36 States. As previously indicated these replies - apart from certain rare exceptions - indicate general conformity between national measures and the requirements of the Convention and the Protocol. The information given in the replies also gives a picture of the legal and administrative measures affecting refugees which are taken in the country concerned and is therefore of great value to the Office from the viewpoint of its protection functions. An analysis of the legal situation, based on the questionnaires, will gain in significance once more States have replied, and once the information already provided has been appropriately supplemented in cases where this is necessary. The Office is currently following up this question and will keep the Committee informed of developments.

(c) Asylum

12. During the period under review, a number of situations have been brought to the notice of UNHCR in which the day-to-day implementation of the principles relating to asylum have given rise to grave concern. In the first place, the High Commissioner regrets to have to inform the Committee that certain cases of refoulement of refugees have again occurred. There have also been some cases in which refugees who have resided in a country for a number of years, have been required to leave without regard to the protection to which they are entitled under international instruments, or to the humanitarian considerations involved. Finally, in certain areas persons although fulfilling the criteria of refugee status have nevertheless experienced great difficulty in receiving asylum, or, in some countries, in having their status regularized even on a temporary basis. The High Commissioner has expressed his concern at this type of situation in which asylum seekers are not permitted to regularize their position, but are simply told to "move on". If they fail to do so, they frequently find themselves in an irregular situation and are subjected to detention or other measures of constraint, based on the fact that their presence is considered illegal. Such persons may not, however, be able to obtain permission to enter another country on a regular basis, and if they move to another country without having previously obtained such entry permission, they may once again be faced with identical problems. Such situations could probably be avoided if the legislation of the countries concerned provided more effective mechanisms for distinguishing between the refugee and the ordinary alien, and if special procedures were established for determining refugee status.

13. From a more general and long-term point of view, developments in regard to asylum have been more encouraging, as evidenced by the willingness of a majority of States to follow liberal asylum practices, by the adoption of appropriate procedures for determining the status of asylum seekers, by increasingly widespread acceptance of the principle of non-refoulement (i.e. that no person may be returned to a country where he may fear persecution) and of the principle that the granting of asylum is purely humanitarian in character, and should not be regarded as an unfriendly act by any State.

14. In view of these and other positive developments, mention is again made in the High Commissioner's annual report to the General Assembly of the desire to achieve a further measure of progress through the adoption of a binding international instrument on asylum within the framework of the United Nations. The draft Convention on Territorial Asylum prepared by a group of experts from 14 different countries was communicated to the Executive Committee at its 23rd Session and was brought to the attention of the General Assembly at its twenty-seventh session in the form of an appendix to document A/8712. The Third Committee, when considering the report, decided that the High Commissioner should consult Governments on the question and report to the General Assembly at its twenty-eighth session with a view to paving the way for the convening by the Assembly of a Conference of Plenipotentiaries. In accordance with this decision the High Commissioner requested the views of Governments with regard to the desirability of a Convention on Territorial Asylum to be prepared by a Conference of Plenipotentiaries and if possible also on the draft text. As at 31 July, 37 Governments had communicated their replies, the great majority of which are favourable to the idea of further strengthening the law relating to asylum on the lines proposed. The Office is closely following developments in regard to this matter.

Family Reunion

15. Owing to the circumstances in which they arise, refugee situations frequently involve the separation of close members of a family unit with all the tragedy and suffering which this entails. This was already recognized in 1951 by the Conference of Plenipotentiaries which adopted the 1951 Convention. In order to meet the problem a special recommendation was included in its Final Act. In line with Article 16, paragraph 2, of the Universal Declaration of Human Rights, this recommendation, call upon Governments inter alia to "take the necessary measures for the protection of the refugee's family especially with a view to ensuring that the unity of the refugee's family is maintained, particularly in cases where the head of the family has fulfilled the conditions for admission to a particular country...". On the basis of this recommendation the Office seeks to promote the reunion of separated families of refugees who seek its assistance in this regard. A study of the cases of refugees wishing to be reunited with their close relatives shows the distress caused by separations and the suffering to which delays in achieving reunion give rise. The various aspects of the problem were recently studied by a round table meeting of experts held under the auspices of the International Institute of Humanitarian Law in San Reno from 28-30 June 1973 at which the Office was represented by an observer. It is hoped that, in view of the purely humanitarian aspects of this problem, all Governments will give their support to efforts to facilitate the reunion of separated refugee families.