"Legal Aspects of Refugee Problems" - Lecture by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, in the Ceremonial Hall of the University of Copenhagen, Denmark, 20 October 1966
I am aware when addressing this august audience who spend their lives studying the intricacies of the laws that regulate the relationship between men and between nations, that I am addressing people who are fundamentally convinced, in everything they do, that law is an expression of life. When, today I have the honour to address you on the refugee problem, I know throughout this lecture you will have in mind a human being who is in the unfortunate position that he has left his home country, often under tragic circumstances, and who depends in the first instance, when he arrives in his country of asylum, on the generosity of his fellow human beings to allow him to find a dignified place under the sun, to establish himself anew and thus to contribute, through his work and his thinking, to take part in the activities of our society. Those who come asking for asylum are people as varied as the people who live in their own country. They are intellectuals, ordinary workers, women and children, people who are handicapped physically and mentally, those who are old. Perhaps too old to work, those who are young and need protection. There is one aspect of the refugee problem that strikes all of us immediately and forcibly, when a man is hungry he has to be fed, when he is without a home a place has to be found for him to live, when he has no work he has to be given work. And here, the human being is such that when he comes in touch with this tragic problem, he is willing to make a contribution, either directly or through his government, to the work that we might call material assistance.
The layman does not realize, perhaps as well as you do, that giving material assistance to refugees cannot be enough. In our modern society the place of the individual is largely determined also by the place that is given to him in the structure of law that exists in each country, and exists internationally. The early refugees in our century felt this very forcibly in their own lives. Although it was true that there were then hardly any restrictions on the movement of persons, it was still necessary to have papers and, at the initial stages, there were no provisions to provide passports and identity documents. This led to innumerable complications, and it was only slowly and on an ad hoc basis that in the various countries regulations were introduced to try and meet the complicated situation of the stranger without the protection of his own government who lived in a foreign land.
I need not go into all the details, but when we look around us to-day the picture is entirely different.
We have a Convention relating to the Status of Refugees which grants refugees basic rights and freedoms and lays down minimum standards for their treatment. This Convention applies in a great many countries and, even in those countries which have not subscribed formally to the Convention, it serves as a guide and an example.
It is interesting to examine the reasons for this development.
If I may be allowed to return to the beginning of the century: our society knew much fewer laws and regulations than it does to-day, affecting commerce, finance, travel, labour, social security, exercise of professions and so on. As through the years a new structure of laws developed as part of the changes in our economic and social thinking, the situation of the refugee tended to become more and more difficult. Indeed, protective measures were at one time or another introduced by States with regard to admission, residence, the right to take up employment and to exercise authorized professions, as part of a movement to place the national in a more favourable position in the face particularly of economic crises and unemployment.
While this development took place, the refugee problems in various countries forced themselves upon the attention of governments who became aware that only through international action could the particular position of the refugee adequately be faced. This led to the adoption of a series of international instruments conceived to remove certain legal difficulties confronting the refugee and to lay down minimum standards for his treatment in his country of asylum.
As the same time appropriate international organs were created to provide refugees with protection. We shall describe these various international instruments and the nature of this international protection later. Let us look, for a moment, at the legal position of the refugee. He is by definition an alien. His legal position, however, differs from that of the ordinary alien in certain fundamental respects. In the first place, he no longer enjoys the protection of his former home country. Being without the national protection enjoyed by the ordinary alien, he is in need of the international protection exercised for his benefit on behalf of the international community. Secondly, his links with his country or refuge are normally closer than those of the ordinary alien resident there. In order to enable the refugee to overcome the difficulties resulting from his special position, to facilitate his integration and also for humanitarian reasons, it is necessary to grant him certain basic rights. These rights are more favourable than those enjoyed by the ordinary alien and in various respects assimilate his legal position to that of a national. These special rights, enjoyed by refugees in accordance with international agreements, form part of what is known as "refugee status", a legal status which has now come to be internationally recognized.
The first international instruments relating to refugees were for the benefit of refugees from Russia, thereafter, further instruments were adopted for the benefit of Russian and Armenian, Assyrian, Assyro-Chaldean and Turkish refugees and, after Hitler's rise to power, refugees from Germany and from Austria. The earlier instruments dealt with the issue of Certificates of Identity for use as travel documents (so-called "Nansen-Passports"), while the later instruments contained more comprehensive provisions dealing, for example, with protection against deportation, the right to work and the law governing a refugee's personal status.
Moreover, while the earlier instruments were in the nature of recommendations, the later ones possessed a legally binding character. It had become apparent that recommendations were not sufficient to improve the legal status of refugees. National legislation only took the position of the normally protected alien into account. The special position of the refugee could only be provided for, on the national level, by amending legislation or, on the international level, by treaties legally binding in the contracting states. It is one of the great achievements in refugee work that sovereign nations have come to accept an international practice ad a binding obligation.
Today, the basic international instrument relating to refugees - which consolidated earlier instruments is the Refugee Convention of 28 July 1951, to which 50 States, including a number of newly independent states in Africa are now parties.
The Convention embodies various fundamental principles and goes further than earlier instruments in defining the specific rights and freedoms of refugees in a comprehensive manner and in laying down minimum standards for their treatment. The fundamental principles embodied in the Convention include the principle of non-refoulement, or non-return of a refugee to a country where he may fear persecution; the principle of non-discrimination (the Convention provides that its provisions are to be applied without discrimination as to race, religion or country of origin); exemption of the refugee from reciprocity as a condition for the enjoyment of certain rights and benefits by aliens, a condition which a refugee, due to his special position, cannot be required to fulfil; the principle that the refugees' personal status should not be subject to the law of his former home country; the Convention provides that the personal status of a refugee shall be governed by the law of his domicile or, if he has no domicile, the law of the country of his residence. The specific rights and freedoms to be granted to refugees include freedom to practise religion and freedom as regards the religious education of the refugee's children, free access to courts; the right, subject to certain conditions, to engage in wage-earning employment and the exercise of liberal professions and rights as regards elementary education, public relief and assistance, labour legislation and social security.
In regard to certain matters the refugee is to receive the same treatment as national of the country in which he resides (e.g. public relief, social security and with certain limitations, wage-earning employment), in regard to others (e.g. self-employment and the practice of liberal professions) treatment as favourable as possible, but not less favourable than that granted to aliens generally. The Convention also contains detailed provisions concerning the issue of travel documents.
The earlier international instruments were adopted as and when the need arose. They applied to specific categories of refugees and did not therefore contain any general definition of the term "refugee". The 1951 Convention for the first time contains a definition which, despite certain limitations, is capable of universal application. The term "refugee" is defined as any person who has been considered a refugee under the earlier international instruments, and the Constitution of the International Refugee Organization, and in addition any person who "as a result of events occurring before 1 January 1951 is outside his former home country because of well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".
Let us now turn to the question of asylum which is of the greatest importance to the refugee. We have already said that the 1951 Convention incorporates the principle of non-refoulement.
Article 33 of the 1951 Convention provides, subject to strictly defined exceptions, that no Contracting State shall expel, or return ("refouler"), a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened. This principle of non-refoulement, which protects the refugee against return to a country where he fears persecution, is an important aspect of refugee status. It is also one essential element of asylum. A second essential element of asylum is the actual granting of asylum, without which there would be no possibility for persons to flee from persecution and the various rights forming part of refugee status and resulting from the granting of asylum would become meaningless. Having regard to more recent developments, the granting of asylum may to some extent already be said to be implied in the principle of non-refoulement, and it would seem now to be generally recognized that persons fleeing from persecution should be granted, at least, temporary asylum.
The principle of non-refoulement has been expressed in the most comprehensive terms in the Draft Declaration on the Right of Asylum, adopted in 1960 by the Human Rights Commission on the United Nations. According to Article 3 of this Draft Declaration, no one seeking or enjoying asylum should, except for overriding reasons of national security or safeguarding the population, be subjected to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in the country where he fears persecution.
The Draft Declaration adopted by the Human Rights Commission will be considered by the United Nations General Assembly at its current Session. My Office is actively concerned with promoting the adoption of the Draft Declaration on Asylum by the United Nations and of an instrument on asylum within the framework of the Council of Europe.
The provision on asylum contained in the Draft Convention relating to the Status of Refugees in Africa recently adopted by the ad hoc Committee of Legal Experts of the OAU is substantially similar to the Draft Declaration and a similar provision has been included in the Principles concerning the treatment of refugees - adopted by the Asian African Legal Consultative Committee at its Bangkok Session in August this year.
We have seen that the definition of the term "refugee" in the 1951 Convention, contains a dateline. Due to this dateline, the Convention is only applicable in respect of persons who have become refugees as a result of events occurring before 1 January 1951.
This dateline has the effect of limiting the scope of the Convention ratione personae. Moreover, States on becoming Parties to the Convention are given the option of limiting their obligations thereunder to persons who have become refugees as a result of events in Europe, Sixteen States have taken advantage of this option while the remaining thirty four States, Parties to the Convention, including Denmark, have accepted the obligations of the Convention without any geographic limitation.
When the Convention was first adopted, the dateline and the geographic limitation did not give rise to any special problem. At that date, the Convention applied in practice to all known groups of refugees, i.e. the pre-war refugees and persons who had become refugees as a result of the events of World War II. Although the dateline has been rather liberally interpreted by the various States, there was already from the beginning a feeling, in many quarters, that the dateline in fact reduced the universal character of the Convention. This became particularly true when, under the impulse of world events, now refugee situations arose, and I am thinking in particular of Africa. There, with the presence of some 700,000 refugees, the countries of Africa felt the limitations of the 1951 Convention acutely.
Efforts are therefore being made today on an international level to extent the scope of the 1951 Convention. This problem was examined, inter alia, by a Colloquium of prominent legal experts, organized by the Carnegie Endowment for International Peace, with the support of the Swiss Government, which met in Bellagio, Italy, in April 1965. In its report addressed to the High Commissioner for Refugees (1) the Colloquium stated that it was urgent for humanitarian reasons that refugees not at present covered by the 1951 Convention should be granted similar rights by means of an international instrument and considered that this object could best be achieved by a Protocol in which States would undertake to apply the provisions of the Convention to refugees irrespective of the dateline. These recommendation have been the subject of consultation between my Office and interested Governments and my Office is at present actively concerned with the submission of such a Draft Protocol to the competent bodies of the United Nations.
I think I should at this point when I have spoken of the Convention and its dateline, make it clear that the High Commissioner's mandate also extends to persons who have become refugees as a result of events after 1 January 1951. So the High Commissioner's Office is competent for all refugees covered by the Convention and all other refugees covered by the definition of his mandate, apart from any consideration of dateline. In practice, however, the High Commissioner would find that is would help greatly his efforts in the field of protection if the international instrument adopted by the fifty States were to apply equally to all groups of refugees within his mandate.
I have referred to the emergence of new refugee situations. Indeed, in the last few years my Office has had to interest itself, inter alia, in refugees from Algeria, Rwanda, The Sudan, Angola, Mozambique, Portuguese Guinea, Tibet, China, Cuba and South Africa. In all these situations we had to give attention to the status of refugees. If I may mention Africa as a special example, this is because since 1964 the problem of refugees in Africa has been of special concern to the Organization of African Unity with which my Office has established close contact on matters of mutual interest. In July 1964, the Assembly of Heads of State and Government of the OAU adopted a Resolution inviting the Commission on Refugees to draw up a Convention covering all aspects of the problem of refugees in Africa. Since the date of this Resolution various drafts for an instrument relating to refugees in Africa have been examined by the competent bodies of the OAU and, in particular, by an ad hoc Committee of Legal Experts established pursuant to a Resolution adopted by the Assembly of Heads of State and Governments also requested Member Stated of the OAU, if they had not already done so, to ratify the 1951 Convention and to apply meanwhile the provision of the Convention to refugees in Africa. At a meeting held in September 1966, the Ad Hoc Committee of Legal Experts adopted a Draft Convention relating to the Status of Refugees in Africa. This Draft Convention, which will now be considered by the Council of Ministers of the OAU, lays down standards of treatment substantially similar to those embodied in the 1951 Convention. It also contains a provision on asylum, which is substantially similar to Article 3 of the Draft Declaration, and a provision relating to voluntary repatriation, a question which has acquired special importance in the African context.
Let us now examine the nature of the international protection exercised for the benefit of refugees on behalf of the international community. We have seen that in the case of a refugee, this international protection replaces the national protection enjoyed by the ordinary alien. Various agencies for the international protection of refugees were established between the two World Wars as the need arose. The first League of Nations' High Commissioner for Refugees was Dr. Fridtjof Nansen. After World War II, the International Refugee Organization was established by General Assembly Resolution 62 (I) of 15 December 1946. The IRO granted "Legal and political protection" to refugees falling within its competence. The Organization's main function was, however, to seek a solution for the residual refugee problem of persons displaced from their homes through the events of World War II. It carried on its activities from 1947 to 1951.
International protection of refugees is now provided by my Office, which was established by General Assembly Resolution 428 (V) of 14 December 1950, to which the Statute of the Office is annexed. The purpose of international protection is to obviate the difficulties arising from the fact that the refugee does not enjoy the protection of his former home country and to safeguard his legitimate rights and interests.
The Statute enumerates the various aspects of the international protection function of which the following are the most important: Promoting the conclusion and ratification of international conventions for the protection of refugees, supervision their application and proposing amendments thereto; promoting the refugee's voluntary repatriation or his assimilation within new national communities. The Statute does not, however, mention all the forms of protection such as, for instance, the provision of administrative assistance to refugees or assisting them to reunite with their families. International protection has developed empirically, it differs from diplomatic or consular protection in the sense that an international organization providing protection has a purely moral authority which is only effective in so far as States are prepared to accept its representations and are ready to grant a favourable status to refugees. This effectiveness is strengthened the more States undertake legal obligations in this field.
I spoke at the opening of my address of the refugee as an individual, of the need there is to provide him with material assistance to enable him to become as rapidly as possible an active member of the community, and for those who are handicapped seek solutions that would provide him with a decent human existence. The need for this type of action was recognized when the Office was created even if the main emphasis was then placed on the basic functions of international legal protection. Since then, the General Assembly has adopted various resolutions which have gradually extended the scope of the High Commissioner's activities, enabling him to grant emergency relief and undertake programmes that will bring about permanent solutions for refugees within his mandate. Nevertheless, through the years the Assembly has sought to preserve the non-operational character of our Office. We are therefore acting in co-operation with other bodies such as governmental administrations, inter-governmental organizations, private voluntary agencies, who are in a position to carry out the projects. We are therefore the planners, the promoters, the co-ordinators. But even more - we believe that an Organization like ours should, whenever it has to face a new refugee situation, call on governments and all those who are in a position to help directly or indirectly, through our diplomatic activity, to help to create a flow of assistance that is far greater in scope than the programmes which we consider to be minimal, although basic. Thus, we obtain from the countries of asylum not only their services, but very often also significant financial contributions depending on the economic possibility of that country. Bilateral agreements between governments, action by other UN specialized agencies, may take care of specific aspects of the problem.
Our task, therefore, is to mobilize and channel all available resources in an international action that is purely humanitarian and non-political. It is indeed this position which is now being almost universally recognized that we apply ourselves to the solution of refugee problems without any afterthought or self-interest that gives strength to our action, makes it acceptable both by the countries of asylum and the countries from where the refugees come. This recognition has led through the years to the scope of the High Commissioner's functions being widened to include various now groups of refugees. It began with the creation of the term "good offices" that enabled the High Commissioner to provide limited assistance, consisting mainly in the transmission of contributions to refugees who do not come within the competence of the United Nations. Later, this concept of "good offices" was applied generally to new refugee situations concerning groups who, prima facie, came within the mandate of the High Commissioner.
This was done partly because of practical considerations, as in Africa where, for instance, it is almost impossible to determine individual eligibility, but partly also because it enables the High Commissioner to apply himself to a refugee problem without having to take any formal decision with regard to its origins. This also has tended to emphasize and strengthen the purely non-political character of the action of the High Commissioner.
What conclusions may be drawn from these various developments? In the first place, we have seen that the refugee problem is no longer regarded as one to be dealt with empirically by individual States but is considered to be a matter of concern to the international community. This has led to the creation of special organs to provide refugees with international protection and a series of international instruments have been adopted, and in particular the 1951 Convention, laying down minimum standards for the treatment of refugees in their country of refuge. This has served to underline the specific importance of the legal aspects of the refugee problem and of the acceptance of the legal status of the refugee recognized by international community. This represents and important achievement in the field of humanitarian endeavour aimed at easing the lot of homeless and uprooted persons.