Addendum 2 to the Report of the United Nations High Commissioner for Refugees
United Nations General Assembly Official Records: Twenty-eighth Session
Addendum to the Report of the United Nations High Commissioner for Refugees
Supplement No.12B (A/9012/Add.2)
Question of asylum
1. In the High Commissioner's report to the General Assembly,1 mention is made of the discussions on the question of territorial asylum by the Third Committee at the twenty-seventh session of the Assembly. At the close of this discussion, a decision was reached that the High Commissioner should consult with Governments and report on the matter 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.
2. Pursuant to this decision the High Commissioner addressed letters to the Governments of all States Members of the United Nations and also to seven non-member States2 requesting their comments on the desirability of concluding a convention on territorial asylum within the framework of the United Nations and if possible their comments on the draft text in document E/138/Add.1.
3. To date, 62 States have made known their views - either in formal replies to the High Commissioner's letter, or in oral statements, particularly those made during the twenty-fourth session of the Executive Committee of the High Commissioner's Programme,3 held at Geneva from 8 to 16 October 1973 - while 10 Governments have sent interim replies stating that the matter is under consideration.4 Of those Governments which have made their views known the reaction of 55 has been in favour of strengthening the law relating to asylum by the adoption of a convention within the framework of the United Nations. Twenty of these Governments deal specifically, and in generally favourable terms, with the convening of a conference of plenipotentiaries5 and of these three have expressed a preference for holding a conference in 1975 rather than in 1974, owing to the heavy programme on United Nations conferences in the coming year.6
4. Three Governments (Greece, Luxembourg and Spain) have expressed doubts as to the need for a convention on territorial asylum as they considered the matter to be adequately covered by existing international instruments. A similar view has been expressed by the United kingdom which considers that much of the purpose of the proposed new instrument would be achieved if the 1951 Convention relating to the Status of Refugees7 were more widely and firmly implemented. The United Kingdom Government has, however, stated that it does not wish its attitude to be considered wholly negative and would not oppose the convening of a conference of plenipotentiaries, should there prove to be substantial support for one.
5. Twenty-one States have submitted specific comments in the text of the draft convention contained in document E/5238/Add.1. These comments are summarized in the annex to the present document.
6. As indicated above, the question of territorial asylum was also mentioned during the discussion of the item entitled "International Protection" at the twenty-fourth session of the Executive Committee of the high Commissioner's Programme. The various Government representatives who referred to this matter were generally favourable to present efforts for strengthening the law relating to territorial asylum by means of an international convention, and in its conclusion on the item the Committee expressed the hope that preparations for such a convention would be actively pursued.8
ANNEX Summary of comments
The Contracting States,
1. Considering the obligation of States under the Charter of United Nations to promote universal respect for, and observance of, human rights and freedom,
2. Recalling that the General Assembly of the United Nations has solemnly declared that nations, irrespective of their political, economic, and social systems or the levels of their development, should base their co-operation, inter alia, on respect for fundamental human rights,
3. Mindful of articles 13 and 14 of the Universal Declaration of Human Rights,
4. Recalling the Declaration on Territorial Asylum adopted by the General Assembly of the United Nations on 14 December 1967, and recognizing the important advance made by this Declaration in formulating principles upon which States should base themselves in their practices relating to territorial asylum,
5. Noting the present practice of States in granting asylum and the general acceptance of the principles of non-refoulement and the voluntary nature of repatriation, expressed in various instruments adopted on the universal and regional levels.
6. Believing that the conclusion of a convention based on these principles will assist States to achieve those humanitarian objectives which are the common concern of the international community and will also thereby strengthen friendly relations between States.
7. Have agreed upon the following articles;
Paragraph 2 should also include a reference to the fundamental principles of contemporary international law.
CHAPTER I GRANT OF ASYLUM, NON-REFOULEMENT, AND NON-EXTRADITION
Article 1. Grant of asylum
1. A Contracting State, acting in an international and humanitarian spirit, shall use its best endeavours to grant asylum in its territory, which for the purpose of the present article includes permission to remain in that territory, to any person who, owing to well-founded fear of
(a) persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or for reasons of struggle against apartheid or colonialism; or
(b) prosecution or severe punishment for acts arising out of any of the circumstances listed under (a) is unable or unwilling to return to the country of his nationality, or if he has no nationality, the country of his former habitual residence.
2. The provision of paragraph 1 of this article shall not apply to:
(i) any person with respect to whom there are serious reasons for considering that he is sill liable to punishment for
(a) a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) a serious common crime; or
(c) acts contrary to the purposes and principles of the United Nations;
(ii) any person who seeks asylum for reasons of a purely economic character.
3. Asylum shall not be refused by a Contracting State solely on the ground that it could be sought from another State.
The Government reserves its position regarding the part of Article 1, paragraph 1(a), relating to "persecution for... membership of a particular social group or political opinion".
It would be desirable if the terms in article 1, paragraph 1 (a), which are not included in the 1951 Convention could be defined, since their interpretation may give rise to difficulty as to countries to which they relate.
According to article 1, Contracting States should simply use their best endeavours to grant asylum in their country, but this should not be a legal obligation of the State. While the reluctance of States to assume such an obligation can be understood, this standpoint makes the practical value of the draft convention, if adopted in its present form, somewhat ambiguous and its necessity can be questioned.
The works "a Contracting State" are ambiguous. It appears from the context that the provision is intended to refer to a collective undertaking of States and not to an undertaking of each of them individually to grant asylum to any person requesting it, irrespective of his nationality or of the place where he finds himself. It is therefore proposed that the works "to grant asylum in its country ..." should be replaced by the works "to ensure that asylum is granted in the territory of one of them ..."
Germany, Federal Republic of
The right of asylum is regulated in paragraph 38 of the German Aliens law. The Federal Republic only has a special interest in the adoption of a new convention if it provides a basis for an individual right to asylum. The general intention to elaborate a convention of territorial asylum is, however, welcomed.
A more precise formulation might be desirable in respect of the grounds of persecution enumerated in paragraph 1 (a). It should be clarified that the words "struggle against apartheid or colonialism" refer to struggle by peaceful means, since the concepts of "apartheid" and "colonialism" have been differently interpreted and since it is not always clear what acts are contrary to the purposes and principles of the United Nations.
The word "severe" in paragraph 1 (b) could be deleted. In view of the humanitarian reasons for the granting of asylum, it does not matter whether the sanction is serious or not but it is sufficient if it was incurred for the reasons enumerated.
It appears that under the proposed convention States have no direct obligation to grant asylum and that their prerogative in this respect is left largely intact. The present wording according to which States are merely enjoined to "use their best endeavours" to grant asylum seriously limits the usefulness of the convention.
The grounds for the granting of asylum could be supplemented, e.g., by mentioning persons prosecuted for their activities aimed at defending democratic rights and freedoms or for their participation in the struggle for national liberation or for the maintenance of peace. The works "in the exercise of its sovereignty and " should be inserted after the word "acting: in paragraph 1.
If the use of the term "apartheid" in article 1, paragraph 1 (a), is designed to refer to the policy of separate development by which South Africa aims to safeguard all minority groups and whereby each component nation is evolving to achieve control over its own affairs and its own future, then such reference in the proposed convention is wholly out of place.
Article 1 does not appear to create any legal obligations in so far as it provides that a Contracting State "...shall use its best endeavours to grant asylum". It would therefore seem that the working should be revised.
The words "or for reasons of struggle against apartheid or colonialism" are not included in the definition of persecution in article 1A (2) of the 1951 Convention. In order to avoid the interpretation that they are not covered by that definition they should be replaced by the works "including persecution for reasons of struggle against apartheid or colonialism".
United Kingdom of Great Britain and Northern Ireland
The phrase "or for reasons of struggle against apartheid or colonialism" is inappropriate in a text designed to define in general terms the categories of persons for whom asylum may be granted. Its inclusion weakens the force of the preceding words and conveys the impression that "apartheid" is a permanent phenomenon.
It is the duty of every State to prevent persons residing in its territory from endangering the safety of another State by organizing hostile expeditions or by propagating crimes against its head, members of its Government or its property. An exclusion provision to this effect should therefore be added, unless the matter is regarded as covered by article 1, paragraph 2 (i) (c).
The words "with respect to whom there are serious reasons for considering that he is still liable to punishment for " in article 1, paragraph 2 (i), should be replaced by the words "liable to be prosecuted or sentenced for". The words "crime grave " in article 1, paragraph 2 (i) (b) [French text], should be replaced by the words "infraction grave".
Germany, Federal Republic of
A more precise formulation should be adopted as regards "serious common crimes".
In regard to many countries article 1, paragraph 2 (ii), is hardly of any relevance in view of the heavy punishments imposed for illegal departure. Leaving refugee will in such cases normally be able to show that he fears political persecution even though he left the country for economic reasons.
It should be specified that the convention is inapplicable to persons guilty of acts of terrorism. Such persons are not entitled the asylum and States granting them asylum incur international responsibility.
Article 1, paragraph 2 (i) (c) requires clarification, e.g. bearing in mind the provisions of the United Nations Charter on the territorial integrity and political independence of any State. It is considered self-evident that the proposed convention should not permit the granting of asylum to persons unwilling to acknowledge the territorial integrity and political independence of another State and whose activities in this regard form the basis of an asylum request.
The words "any persons who seek asylum for reasons of a purely economic character" (paragraph 2, subparagraph (ii)) are inadequate since they scarcely meet the case of persons whose economic condition is worsened if not destroyed entirely because they have taken the first step to exercise their human right to leave their country. Experience has shown that the dividing line between political and economic victimization in this type of case becomes extremely thin.
To the grounds for exclusion in article 1, paragraph 2 (i), there should be added "air piracy and terrorism".
Libyan Arab Republic
In view of the evils of mercenaries suffered by various areas of the world, particularly Africa, it must be ensured that these mercenaries are excluded from the application of the provisions of the convention.
The words "crime grave" in the French text of article 1, paragraph 2 (i) (b), are inappropriate since the work "crime" already implies a certain degree of seriousness. On the other hand, it would be useful to specify that it shall before the country of asylum to qualify the criminal nature of the offence by reference to its internal law.
The word "grave" in article 1, paragraph 2 (i) (b) [French text] should be deleted as it does not figure in the universal Declaration of Human rights (article 14, paragraph 2) nor in the Declaration on Territorial Asylum.
It is essential that the exceptions provided for in article 1, paragraph 2, should be carefully drafted so as not to impair the effectiveness of the protection afforded by the convention. These exceptions are wider than those provided for by article 1, paragraph 2, of the Declaration on Territorial Asylum, in particular as regards paragraph 2 (i) and 2 (ii) (b).
The term "serious common crime" in article 1, paragraph 2 (b), needs further clarification.
United Kingdom of Great Britain and Northern Ireland
The exceptions mentioned in paragraph 2 (i) (b) and (i) (c) require more careful definition. There is no common understanding as to the meaning of "serious common crime" nor does the phrase "acts contrary to the purposes and principles of the United Nations" nor does the phrase "acts contrary to the purposes and principles of the United Nations" lend itself readily to consistent application by national authorities.
The provisions figuring in article 1, paragraph 2, should be maintained in the final text.
This paragraph would seem to give a refugee the right to choose between different countries where he could ask for asylum. Consequently, it might interfere with the right of these countries to conclude agreements while determining in which country an application for asylum shall be examined. However, there seems to be no reason to prohibit such agreements since the purpose of the draft convention should not be to give the refugee the right to stay in a particular country but to ensure that he is not returned to a country where he runs the risk of being persecuted.
It should be clarified to what extent the application of paragraph 3 of this article would be affected by the circumstance that an asylum-seeker had already established links with another country.
Article 2. Non-refoulement
No person shall be subjected by a Contracting State to measures such as rejection at the frontier, return, or expulsion, which would compel him to return directly to, or remain in a territory with respect to which he has well-founded fear of persecution, prosecution or punishment for any of the reasons stated in paragraph 1 of article 1.
In order to ensure that this article applies only to those persons entitled to claim asylum under paragraph 1 of article 1, and not those excluded by paragraph 2 of that article, it would be preferable to replace the words "no person" by the words "no person entitled to claim asylum under article 1".
Germany, Federal Republic of
The article goes considerably further than article 33 of the 1951 Convention. No State can renounce the right in special circumstances to expel refugees, if necessary to their country of origin as provided for in article 33 of the 1951 Convention. It is also not made clear that the article has no application to persons covered by the exclusion provisions in article 1, paragraph 2.
The question arises as to the extent to which the scope of this article is related to that of the draft convention.
It would be appropriate to introduce exceptions relating to "compelling reasons of national security of in order to safeguard the population: as provided for in article 3, paragraph 2, of the Declaration on Territorial Asylum.
It seems necessary to take into account the exceptions provided for in article 33, paragraph 2, of the 1951 Convention.
United Kingdom of Great Britain and Northern Ireland
The principle of "non-refoulement" is already recognized in article 33 of the 1951 Convention. As far as rejection at the frontier if concerned, the proposed article would limit a Government's discretion to an unacceptable degree.
[Note: The principle of non-refoulement is generally regarded as covering both expulsion from a State's territory and rejection at the frontier if this would result in a person having to return to a country where he fears persecution and article 33 of the 1951 Convention has generally been interpreted by States in this sense. Rejection at the frontier is specifically mentioned in article 3, paragraph 1, of the United Nations Declaration on Territorial Asylum.
Article 3. Non-extradition
No person shall be extradited to a State to the territory of which he may not be returned by virtue of article 2.
This article raises the problem of the relationship between the law relating to territorial asylum and the law relating to extradition. In order to be effective, any system of territorial asylum must be matched with an adequate system of extradition which will ensure that genuine cases of asylum will not be confused with mere criminality.
The question arises as to the extent to which the scope of this article is related to that of article 1 of the draft convention.
It would be appropriate to introduce exceptions relating to over-riding reasons of national security or in order to safeguard the population as provided for in article 3, paragraph 2, of the United Nations Declaration on Territorial Asylum.
The question arises whether this article might not result in a conflict with obligations under bilateral or multilateral extradition treaties.
This article needs further clarification with regard to its effect on existing bilateral and multilateral extradition treaties.
United Kingdom of Great Britain and Northern Ireland
The obligations resulting from this could not be reconciled with the terms of existing bilateral extradition treaties to which the United Kingdom is a party. These already exclude extradition for political offences and the article would oblige Governments to withhold extradition in a wide category of cases.
Article 4. provisional stay pending consideration of request
A person requesting the benefits of this Convention at the frontier or in the territory of a Contracting State shall be admitted to or permitted to remain in the territory of that State pending a determination of his request, which shall be considered by a specially competent authority and shall, if necessary, be reviewed by higher authority.
A second paragraph in the following terms should be added:
"2. Such a person shall not be prosecuted by the local authorities for having entered their territory in an irregular manner."
It is unfortunate that this article does not specify a time-limit within which requests for asylum should be examined and decided upon.
The article could appropriately be supplemented by a provision that:
"The State in question, acting in the exercise of its sovereignty, shall investigate and re-examine asylum requests in good faith."
The views expressed above in regard to article 1, paragraph 3, also seem to be relevant in regard to this article.
It is important that any alien whose return, expulsion or extradition is demanded and who claims to be a political refugee shall have the opportunity of presenting his case and of explaining the reasons which speak against his return, expulsion or extradition.
It might therefore be desirable to include in the Convention a provision on the procedure to be applied in such cases. Such a provision could be based on article 13 of the International Covenant on Civil and Political Rights according to which in expulsion cases an alien shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose, before the competent authority or a person or persons especially designated by the competent authority.
The article should be drafted in such a manner as to make it conform with the internal legislation of the Contracting States.
United Kingdom of Great Britain and Northern Ireland
The article would require the admission of an asylum-seeker while his application for asylum is being considered. A limitation of discretion in the manner provided by the article is not acceptable.
CHAPTER II INTERNATIONAL CO-OPERATION
Article 5. International solidarity
Where, in the case of a sudden or mass influx, or for other compelling reasons, a State experiences difficulties in granting or continuing to grant the benefits of this Convention, other Contracting States, in a spirit of international solidarity, shall take appropriate measures individually, jointly, or through the united Nations or other international bodies, to share equitably the burden of that State.
The article could usefully include a reference to the equitable sharing of the burden of a State in the circumstances described; to an obligation for other States to take into their territory a reasonable number of asylum-seekers concerned in a sudden or mass influx; and an obligation to receive persons with regard to whom "other compelling reasons" exist.
The convention should emphasize the need for a better balance of responsibilities in regard to organization and financing as between countries of first asylum and other countries.
It would be advisable for countries to work out arrangements with a view to reaching an equitable distribution of those granted asylum in the case of a great influx of persons. This could be done notably on the basis of regional co-operation.
The draft convention does not appear to be effective enough as far as international action is concerned, particularly the burden-sharing provisions of this article which leaves it to States to take "appropriate measures". The provisions concerning international action might be strengthened by elaborating chapter II in detail and providing for the channelling of burden-sharing through the existing United Nations high Commissioner for Refugees.
It should be specified that assistance by other States can only be granted at the express request of the State which finds difficulty in granting asylum.
In this article the moral obligation of international solidarity in the case of a sudden or mass influx of refugees is more effectively defined than hitherto.
United Kingdom of Great Britain and Northern Ireland
It is doubtful whether any country would wish to be bound to take in any number of people in such circumstances, as this is usually a matter for negotiation.
Article 6. Voluntary repatriation
If an asylee should voluntarily and in full freedom express his desire to return to the territory of the State of his nationality or former habitual residence, the State granting asylum and the State of the asylee's nationality or former habitual residence, as well as all other States concerned, shall facilitate his repatriation.
This article should provide more guarantees against a possible agreement between Governments of countries of asylum and origin against the return of refugees against their will. The additional provision could be worded as follows:
"The declaration by the refugee of his wish to repatriate and his subsequent repatriation shall be under the control to the United Nations High Commissioner for Refugees."
Article 7. Co-operation with the United Nations
The Contracting States shall co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may be created for the purpose, as regards the application of the provisions of this Convention. They shall in particular keep the Office, or agency, informed of all general implementing measures adopted by them and shall consult with the Office, or agency, regarding questions arising out of applications for asylum.
Some specific organization from among the existing group of United Nations organizations, preferably the United Nations High Commissioner for Refugees, would be made responsible for such questions. No new organization need be created.
The need for this article should be re-examined in the light of the comments on article 5.
Special thought should be given to the implementation of the convention and a more effective system than that provided for by this article could perhaps be elaborated.
In a general comment the Government of Israel considers that chapter II is incomplete. The issue of the termination of the condition of "asylum" needs to be tackled. While the choice between resettlement and repatriation should remain as the underlying principle, both Governments - those granting the initial asylum and those of second or later asylum - and the individuals concerned should be prevailed upon to recognize the preferability of resettlement as the ultimate solution to the human problem. This is particularly relevant where the internal conditions in that person's country of origin, whether or not those changes were the original cause of his seeking asylum, have not been modified in a sense beneficial to the individual concerned. Indeed, in many such cases - both individual an collective - resettlement may well turn out to be not only to the best advantage of the individual, but also the most conducive to the cause of international peace and security.
CHAPTER III CHARACTERIZATION OF ASYLUM
Article 8. Peaceful character of asylum
The grant of asylum in accordance with article 1, or the application of other articles of this Convention, is a peaceful and humanitarian act. as such it does not constitute an act unfriendly to any other State and shall be respected by all States.
Article 9. Right of qualification
Qualification of the grounds for granting asylum or applying the provisions of articles 2 or 3, appertains to the Contracting State whose territory the person concerned has entered or seeks to enter.
This article should be maintained in the future convention.
Article 10. Régime of asylees
1. States granting asylum shall not permit asylees to engage in activities contrary to the purposes and principles of the United Nations.
2. Without prejudice to the provisions of regional conventions, a State incurs international responsibility for the action of asylees to the same extent that it would be responsible for the actions of any other person living in its territory.
Responsibility of States for the acts committed by individuals is based on the general concept of fault. A special provision as that in paragraph 2 of the article is therefore not required. The present paragraph 2 should, however, be replaced by a new paragraph providing that:
"Every person to whom asylum has been granted shall conform to the laws of he asylum-granting country and shall refrain from all activities which are detrimental to the institutions and security of that country."
It should be carefully examined whether the provision which holds States responsible for activities by refugees accepted in their territory could not have adverse consequences on the aims of the convention, namely, a maximum of generosity is the granting of asylum.
The article should be amended to exclude expressly the activities of freedom fighters struggling to free their countries from the clutches of the racist minority régimes.
This article could be improved by providing that the asylum-granting States shall not permit asylees to carry out acts of espionage, subversion or sabotage against other States.
The obligations imposed by this article are not sufficiently well defined. If the article is retained, its scope and content should be more clearly specified.
Article 11. Good faith
All determinations and decisions called for in the application of this Convention shall be made in good faith and with due regard to all ascertainable facts.
In the absence of a provision in the convention for the settlement of disputes, it is difficult to see how this article could be enforced.
The article would seem to weaken the normative character of the convention and should be omitted.
The article embodies a fundamental principle of the Law of Treaties, which also figures in article 26 of the Vienna Convention on the Law of Treaties. While recognizing the validity of the principle, the necessity for incorporating it in a specific provision in the convention on territorial asylum is open to question.
In addition to the above comments on the specific provisions of the draft convention, the reply of the Libyan Arab Republic proposes the inclusion of a provision requiring States to abstain from committing, participating in, or encouraging actions which would result in their nationals requesting asylum in other countries.
In the reply of Israel it is stated that the need for the granting of asylum should not be adversely affected by the circumstance that the applicant for asylum is not in possession of a valid passport or travel document issued by the authorities of his country of origin. Furthermore, the country of asylum should be under an obligation to issue appropriate travel documents to asylees. The reply of Israel also mentions the need to define the relationship between the convention and existing international instruments regulating the status of refugees. The question is also raised in the replies of the Netherlands and that of the Malagasy Republic which also mention the need for reconciling the provisions of the convention with national immigration legislation. In this connexion, it is considered desirable for a reservations provision to be included in the final clauses. The replies of the Netherlands and the Malagasy Republic also refer to the need to define the legal status of asylees.
In the reply of the Netherlands, the view is also expressed that it would be desirable to draw up further international rules in respect of persons who have sound reasons for seeking asylum without their having to claim refugee status on the basis of the criteria of the 1951 Refugee Convention and the 1967 Protocol thereto.
1 Official Records of the General Assembly, Twenty-eighth Session, Supplement No.12 (A/9012), paras., 23-25
2 Bangladesh, German Democratic Republic, Germany, (Federal Republic of), Holy See, Liechtenstein, Monaco and Switzerland Of these the Federal Republic of Germany and the German Democratic Republic have in the meantime become members of the organization.
3 Algeria, Austria, Belgium, Brazil, Burundi, Canada, Colombia, Costa Rica, Cyprus, Dominican Republic, Egypt, Equatorial Guinea, Ethiopia, Fiji, Finland, France, Germany (Federal Republic of), Ghana, Greece, Guyana, Haiti, Holy See, India, Indonesia, Iraq, Ireland, Israel, Italy, Ivory Coast, Kenya, Laos, Lebanon, Lesotho, Libyan Arab Republic, Luxembourg, Madagascar, Mexico, Morocco, Nepal, Netherlands, New Zealand, Niger, Nigeria, Norway, Pakistan, Panama, Philippines, Romania, Rwanda, South Africa, Spain, Sudan, Sweden, Switzerland, Togo, Turkey, Uganda, United Kingdom of Great Britain and Northern Ireland, United States of America, Venezuela, Zaire and Zambia
4 Australia, Denmark, Gabon, Gambia, Guinea, Iran, Kuwait, Malaysia, Nicaragua and Syrian Arab Republic
5 Belgium, Burundi, Brazil, Canada, Colombia, Costa Rica, Cyprus, France, Ghana, Guyana, Haiti, Indonesia, Italy, Lebanon, Netherlands, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela.
6 Ghana, Switzerland, United Kingdom of Great Britain and Northern Ireland
7 United Nations, Treaty Series, vol. 189, No. 2545
8 Official Records of the General Assembly, Twenty-eighth Session, Supplement No. 12A (A/9012/Add.1), para. 42