Note on International Protection (submitted by the High Commissioner)

A/AC.96/477

Introduction

1. Details of the main developments in regard to international protection up to 31 March 1972 are given in the High Commissioner's report to the General Assembly at its twenty-seventh session (document A/8712). Developments which have occurred since that date are mentioned as appropriate in this note, the purpose of which is to highlight certain matters which are of particular concern to the Office in the field of international protection, namely: the continuing need for further extending and strengthening the legal framework of international protection, the importance of appropriate implementing measures to give full effect to international standards established for the benefit of refugees, asylum and non-refoulement, voluntary repatriation and family reunion.

Asylum and non-refoulement

2. The High Commissioner has frequently stressed the fundamental importance of the principles relating to asylum and non-refoulement, which have gained increasing recognition by States and by the international community an a whole. These principles have, in varying forms, been incorporated in the Constitutions or ordinary legislation of a growing number of states. Within the United Nations, the principle of non-refoulement has, of course, found expression in the 1951 Convention, to which a significant number of states are now parties. The importance of the principle of non-refoulement has been re-affirmed in Resolution 5 adopted by the International Conference on Human Rights held in Teheran in 1968. Moreover, this and other basic principles relating to asylum have found their expression in the Declaration on Territorial Asylum unanimously adopted by the General Assembly in 1966. On the regional level, mention may be made of the Resolution on Asylum to Persons in Danger of Persecution adopted by the Committee of Ministers of the Council of Europe in 1967, of the OAU Convention of 1969 and the Inter-American Human Rights Convention of the same year, both of which contain binding legal provisions concerning asylum. The various principles relating to asylum have thus been given more concrete expression on both the national and international plane. At the same time, there has been a growing climate of opinion in favour of further developing positive international law in regard to asylum by establishing a binding international instrument on the subject.

3. As reported in the High Commissioner's Report to the General Assembly, a draft text on Territorial Asylum has been prepared by a group of experts convened by the Carnegie Endowment for International Peace in consultation with UNHCR. The High Commissioner believes that this text could constitute a useful basis for discussion with a view to drawing up a Convention on Territorial Asylum within the framework of the United Nations. In view of the importance of this question, the High Commissioner considered that the draft text should be brought to the attention of the General Assembly without delay. He has therefore made the text available to the General Assembly, through the Economic and Social Council, in the form of an addendum to his annual report (A/8712).

The need for further strengthening the legal framework of international protection

4. The High Commissioner has in the past drawn attention to the need for an adequate, legal framework to enable the international protection functions of his Office to be carried out effectively. This legal framework is constituted by various international instruments established for the benefit of refugees, and in particular the 1951 Convention on the Status of refugees and the 1967 Protocol. As far as these instruments are concerned, the results have certainly been encouraging. Thus, in paragraph 12 of the High Commissioner's annual report to the General Assembly, it is noted that 62 States had become parties to the Convention and 51 had acceded to the Protocol by 31 March 1972. Since that date, Brazil has acceded to the 1967 Protocol, Fiji has acceded both to the 1967 Protocol and to the 1951 Convention and Mauritius has made a general declaration that it considers itself bound by international agreements, including the 1951 Convention, the application of which was extended to its territory before independence. It has also been reported that accession to the Convention and/or the Protocol is under active consideration by various States in Latin America and in Africa. The High Commissioner wishes to again express his concern that in certain areas, the number of acceding States is still very limited and several States which have accepted substantial numbers of refugees for asylum or resettlement have not yet become parties to the Convention or Protocol. He trusts that in view of its importance, this question will receive the attention which it deserves and that further accessions will be forthcoming in the near future.

5. An important element of the legal framework of international protection on the regional level is the 1969 Convention of the Organization of African Unity governing the Specific Aspects of Refugee Problems in Africa. This Convention has so far been ratified by five African States (Central African Republic, Niger, People's Republic of the Congo, Senegal and Togo). The High Commissioner is pleased to note that ratification is being actively considered by a number of other African States and very much hopes that this important regional instrument will soon enter into force through ratification by a third of the total of 41 member states of the OAU.

6. With regard to another international instrument of benefit to refugees, the 1954 United Nations Convention relating to the Status of Stateless Persons, the High Commissioner is pleased to be able to report the recent accession by Argentina and Switzerland.

7. Since one of his tasks in the field of international protection is to encourage measures whereby refugees can cease to be refugees by the acquisition of a new nationality, the High Commissioner, has pursued his efforts to promote accessions to the 1961 United Nations Convention on the Reduction of Statelessness. To date, Norway, Sweden and the United Kingdom have become parties to this Convention, which has still not entered into force owing to the absence of the required number of accessions (six). The High Commissioner is therefore gratified to learn that in Austria the procedure for accession to this Convention has now been completed. He hopes that this Convention will shortly receive the necessary number of accessions to enable it to enter into force.

8. Notwithstanding the above comments, the High Commissioner considers that from an overall standpoint the results achieved in this field are satisfactory and he wishes to express his appreciation to Governments for their generally positive response to his efforts towards strengthening the legal framework for the protection activities of his Office.

Implementation of international standards for the treatment of refugees

9. As the Committee is aware, in order that refugees may take full advantage of the international standards defined for their benefit in the relevant international instruments, it is necessary that these standards be adequately reflected in appropriate national legislative and/or administrative measures. Measures to this effect continue to be adopted by various countries, as duly reported to the Committee.

10. In January 1972, the United States adopted administrative guidelines for dealing with asylum requests, and the High Commissioner would like to express his renewed appreciation for this measure. More recently, the Kenyan Parliament has adopted an amendment to the Immigration Law with a view to implementing the 1951 Convention. The law defines the term "refugee" in the same manner as that Convention, and provides that refugees may be granted a new type of entry permit enabling them to engage in gainful occupations. In Senegal, legislation concerning the procedure for the determination of refugee status and related matters has been adopted. In Senegal and in the Lebanon, administrative measures have been taken to facilitate the access of refugees to gainful employment.

11. The Committee will recall that it endorsed a proposal by the High Commissioner to address a questionnaire to States concerning the measures adopted by them to give effect to their commitments under the 1951 Convention and the 1967 Protocol. A questionnaire modelled on those used by the International Labour Organization, has been addressed to 63 states parties to the Convention and/or Protocol.

12. Since the twenty-second session, a further 17 States have replied to the questionnaire, making a total of 37 replies from the following States: Algeria, Austria, Australia, Belgium, Botswana, Burundi, Cameroon, Central African Republic, Cyprus, Denmark, Ecuador, Ethiopia, Federal Republic of Germany, Greece, Finland, Ghana, Israel, Italy, Liechtenstein, Luxembourg, Madagascar, Monaco, Morocco, Netherlands, New Zealand, Niger, Nigeria, Norway, Senegal, Sweden, Switzerland, Tunisia, Turkey, United Kingdom, United States of America, Zaire, Zambia. The majority of the replies contain detailed information on implementing measures.

13. The later replies confirm the general conclusion communicated to the Committee at its twenty-second session (document A/AC.96/348, paragraph 9), namely that only in very few cases is there a clear lack of conformity between national measures and the requirements of the Convention. Moreover, as previously indicated to the Committee, in many States which have introduced reservations, the provisions of the Convention are nevertheless applied in practice. With regard to economic and social rights, documentation for refugees, expulsion and non-refoulement, there appears to be general conformity with the Convention.

14. With respect to implementing measures, the High Commissioner has drawn the attention of the Committee to the special problems which have arisen in States, mainly in Africa, which have more recently acceded to the Convention and Protocol. These problems concern the establishment of appropriate procedures to determine the refugee character of asylum-seekers, non-refoulement and the related questions of admission to residence and the regularisation of status. In this connexion, the High Commissioner has in the past stressed the importance of effective procedures to ensure that asylum seekers receive a fair and sympathetic hearing, subject to the necessary legal guarantees, and that in normal cases of asylum seekers fulfilling the criteria of refugee status, their residence in a country should be regularized as rapidly as possible.

15. In view of the importance of these various problems, the Director of Protection Division visited, in 1972, Botswana, Ethiopia, Kenya, Tanzania, Uganda and Zambia. These visits enabled the Office to acquire a deeper understanding of the special context in which refugee problems arise in those countries and to note a willingness to take appropriate steps to give full effect to accepted international standards.

Repatriation and family reunion

16. The High Commissioner has continued to pay close attention to the promotion of voluntary repatriation. The significance of this solution has been emphasized by recent developments concerning the South Sudan, which may well open the way to voluntary repatriation on a large scale. As regards family reunion, positive solutions have been arrived at in certain cases. This development is to be welcomed, bearing in mind the recommendation contained in the Final Act of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. It will be recalled that in its Final Act, the Conference recommended inter alia that Governments: "take the necessary measures for the protection of the refugee's family especially with a view to ensuring 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 ...". Having regard to the purely humanitarian considerations involved, the High Commissioner hopes that all States will support his continued efforts to promote the reunion of separated refugee families.