Refugee and Asylum Law: The Modern Era

As previously indicated, the history of refugees and asylum, in my opinion, may be divided into two major periods: the pre-modern era (before the adoption of the Universal Declaration of Human Rights in 1948) and the modern era (after that adoption).[1] We now examine that Declaration and its implementation in the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.

Universal Declaration of Human Rights

The United Nations Charter, which entered into force on October 24, 1945, created the Economic and Social Council in Chapter X. Under Article 68 of the Charter, this Council was to establish a commission for the promotion of human rights.[2]

In early 1946 this Council created a committee to make recommendations on the structure and functions of such a commission. Eleanor Roosevelt, the widow of U.S. President Franklin D. Roosevelt, and eight others were appointed to this committee, and she was elected its chair. It recommended that the first project of the new commission should be the writing a bill of human rights. Thereafter, in June 1946, the Council created the U.N. Human Rights Commission and directed it to prepare an international bill of human rights.[3]

In January 1947 the Human Rights Commission held its first meeting and elected Eleanor Roosevelt as its chair.[4]

At the Commission’s June 1947 meeting Great Britain proposed preparing a covenant or treaty of human rights, rather than a declaration full of high-sounding generalities. The U.S., however, favored a broad declaration followed by treaties. The U.S. position appears to have been a strategy to avoid the U.S. Senate ratification process that constitutionally was necessary for ratification of treaties, but was not required for U.S. voting in the U.N. General Assembly. Remember that President Truman was heading into the 1948 presidential election and did not want to provoke a Senate vote he might lose. In any event, the Commission decided to work on both a declaration and covenants.[5]

In December 1948 (only one month after Truman won the presidential election), the U.N. General Assembly adopted the Universal Declaration: 48 in favor (including the U.S.); 0 against; 8 abstentions (the USSR and its allies, South Africa and Saudi Arabia); and 2 absences.[6]

The Declaration had two important provisions relevant to refugees and asylum. Its Article 13(2) stated, “Everyone has the right to leave any country, including his own, and to return to his country.” Article  14(1) went on to say, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Emphasis added.)[7]

Even though the Declaration was not a treaty that created legal obligations for subscribing states, its declaring that every individual human being had a right to asylum was a historic departure from the pre-modern era where asylum was a matter of discretion for the protecting state. This provision also set an objective for the treaty on refugees then being formulated. These provisions of the Universal Declaration, in my opinion, also constitute an atonement for the failure of the civilized world in the 1930’s to protect German Jewish refugees.

In any event, ever since its adoption, the Universal Declaration has set the agenda for the subsequent development of international human rights treaties. The Declaration also continues to act as an inspirational and aspirational document throughout the world, as I discovered on my first visit to El Salvador in April 1989.[8]

Convention Relating to the Status of Refugees

On July 2, 1951, an international conference in Geneva, Switzerland concluded with the signing of the Convention Relating to the Status of Refugees by the conference attendees and the opening of the treaty for accession or ratification by nation states.[9] By its Article 43(1) it was to enter into force or become a binding treaty 90 days after the sixth state had acceded or ratified the treaty. That happened on April 22, 1954.[10]

Its preamble noted that the U.N. had “manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of . . . fundamental rights and freedoms.” The preamble also stated, “the grant of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem . . . [of] international scope and nature cannot therefore be achieved without international cooperation.”

This treaty adopted the following definition of “refugee” in Article 1(A)(2) as any person who:

• “[As a result of events occurring before 1 January 1951] and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The bracketed phrase [“As a result of events occurring before 1 January 1951”] was the provision that limited the coverage of the Convention to the problems still being faced by many World War II refugees still scattered across Europe. This limiting phrase was eliminated in the Protocol Relating to the Status of Refugees discussed below.

Excluded from the definition of “refugee” in Article 1(F) was “any person . . . [who] (a) . . . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . . has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [and] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”[11]

The Convention granted refugees certain rights within a country of refuge as well as imposing on them certain obligations. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their “illegal entry or presence.” This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

Importantly, the Convention contains various safeguards against the expulsion of refugees. Its Article 33(1) states, “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 on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Protocol Relating to the Status of Refugees

By 1966, it had become apparent that new refugee situations had arisen since the Refugee Convention had been adopted and that all refugees should enjoy equal status. As a result, a new treaty was prepared to eliminate the previously mentioned limitation of the Convention to those refugees created by pre-1951 events. This was the Protocol Relating to the Status of Refugees that went into force on October 4, 1967.[12]

Parties to the Convention or Protocol

As of April 1, 2011, there were 145 nation states (and the Holy See) that were parties to the Convention and Protocol or the latter, including the U.S. That represents 76.2% of the U.N. members (plus the Holy See).[13]

Conclusion

In subsequent posts we will review (a) the work of the principal U.N. agency concerned with refugees (the Office of the United Nations High Commissioner for Refugees); (b) U.S. law and procedures for refugees; and (c) U.S. law and procedures for asylum.