HUMAN RIGHTS AND REFUGEES 1

by Paul Weis

I. Introduction
Wherever the United Nations Charter refers to promoting and
encouraging respect for human rights and for fundamental free-
doms, it refers to human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion. Within a
State one distinguishes normally between nationals and aliens. But
among the aliens there is a particular group—the refugees—whose
position in traditional customary international law is especially
precarious. This is due to the fact that in classic international law
nationality is considered as the link between the individual and
international law. In later editions of Oppenheim's leading textbook
on International Law it is called the principal link.2
In the case of the refugee, this link is not effective; it has been
broken. One speaks also of de facto and de jure stateless persons,
but this terminology is, in the opinion of the present writer, not quite
exact. The definition of refugee which we find with certain variations
in relevant international instruments is that of " any person who
is outside the country of his nationality or, if he has no nationality,
the country of his former habitual residence, owing to well-founded
fear of being persecuted by reason of his race, religion, nationality
1
Speech delivered at Geneva on 26 November 1971 on the occasion of the present-
ation of the Golden Nansen Ring to Mr. J. F. Thomas, Director of the Intergovern-
mental Committee for European Migration, based on an article by the speaker,
published in the Israel Yearbook on Human Rights vol. 1. pp. 35-50.
2
6th ed. edited by Lauterpacht p. 588.

537
 or political opinion, and is unable or, because of such fear, is un-
willing to avail himself of the protection of the country of his
nationality, or if he has no nationality, to return to the country of
his former habitual residence ".3
Refugees may be stateless or not. It is not their nationality status
but the absence of protection by a State which is a determining
element of their refugee character. It would, therefore, in the case
of refugees and stateless persons who have been called " flotsam ",
" res nullius ",* " a vessel on the open sea not sailing under any
flag",5 be more proper to speak of de facto and dejure unprotected
persons. Owing to this lack of protection, their situation in custo-
mary international law is anomalous.
While the refugee problem is as old as history, international
action for refugees started only after the First World War when the
Russian Revolution brought in its train a problem of refugees
numbering approximately 1,500,000 persons. They were devoid of
passports and this created also a legal problem where their move-
ment was concerned. The League of Nations dealt with this problem
in two ways: by the creation of international agencies for the pro-
tection of refugees and by the establishment of international
arrangements, agreements and conventions, first for the issuance of
travel documents for refugees and then for the regularisatipn of their
status in general. Many of these agreements were adopted at the
initiative of the international agency for refugees. The first such
agency—created thanks to the initiative of the International Com-
mittee of the Red Cross—was the League of Nations High Commis-
sioner for Russian Refugees and the first High Commissioner was
the great Norwegian explorer and humanitarian, Dr. Fridtjof
Nansen, who was appointed on 27 June 1921. The travel document
issued to refugees in lieu of a passport has become known as the
" Nansen Passport". Since that time there has been an unbroken
chain of intergovernmental agencies for the protection of refugees:
the mandate of the League's High Commissioner was extended to
further groups of refugees—Armenian, Assyrian, Assyro-Chaldaean

3
Statute of the UN High Commissioner for Refugees, Sec. 6.
4
See Schwarzenberger International Law vol. I, p. 171.
6
See Oppenheim International Law (6th ed.) vol. I, p. 611.

538
refugees, refugees from the Saar territory and others. In 1930, after
Dr. Nansen's death, the legal and political protection of Russian
and assimilated refugees was assured by the regular organs of the
League, and the " Nansen International Office " was created, under
the authority of the League, for the discharge of the relief activities
for refugees. On Hitler's coming into power, a special " High Com-
missioner for Refugees from Germany " was appointed. Both the
Nansen International Office and the Office of the High Commis-
sioner for Refugees from Germany were liquidated in 1938 and
replaced by the Office of the High Commissioner for all refugees
under the protection of the League of Nations.
Thus, the League dealt with specific categories of refugees as they
arose. When the problem of refugees, particularly of Jewish refugees,
from Nazi Germany and Austria assumed great proportions, an
intergovernmental conference held at Evian, France, in 1938, at the
initiative of President Franklin D. Roosevelt, created a new interna-
tional agency, the Intergovernmental Committee for Refugees.
During the Second World War, both the League of Nations High
Commissioner for Refugees and the Intergovernmental Committee
for Refugees had their seat in London where they used the same
premises. By the fact that Sir Herbert Emerson was both League of
Nations High Commissioner for Refugees and Director of the
Intergovernmental Committee, close coordination of the activities
of both agencies was ensured.

II. United Nations Action

The newly created United Nations had from its inception to deal
with the refugee problem. The Second World War and the political
and territorial changes which it brought about created a vast prob-
lem of refugees and displaced persons. One of the first actions of the
United Nations was the creation of a new specialized agency, the
International Refugee Organization (IRO), to assist those persons
not only where their protection was concerned but also with care
and maintenance, repatriation and resettlement. It was a vast
operational agency, but short-lived; it went into liquidation in 1951.
It is significant that most of the work of the United Nations for
refugees in the legal field emanated from the Commission on Human

539
Rights, which as early as 1947 adopted a Resolution that " early
consideration be given by the United Nations to the legal status of
persons who do not enjoy the protection of any Government, in
particular the acquisition of nationality, as regards their legal status
and social protection and their documentation." 6
In the course of the work following this initiative, the Secretary-
General of the United Nations, pursuant to a resolution of the
Economic and Social Council, prepared a study of the existing
situation regarding the protection of stateless persons and refugees
and of national legislation and international agreements and con-
ventions relating to the subject, and submitted recommendations on
both questions to the Council.7 The Secretary-General recommended
the conclusion of international conventions concerning the legal
status of stateless persons, whether de jure or de facto, and the
creation of an international organ for their protection.
This led to the creation by the General Assembly of the United
Nations, by Resolution 428 (V) of 14th December 1950, of the Office
of the United Nations High Commissioner for Refugees (UNHCR)
as from 1 January 1951 to take over the protection function from
the IRO, and to the establishment of a Convention relating to the
Status of Refugees 8, adopted by a Conference of Plenipotentiaries
on 28 July 1951 at Geneva and of a Convention relating to the
Status of Stateless Persons, adopted by a Conference of Plenipoten-
tiaries on 24 September 1954 in New York.9 It can thus be seen that
the United Nations followed the tradition of the League in estab-
lishing agencies for the protection of refugees and treaties regulating
their status. There are, however, important differences: both the
Statute of the Office of the United Nations High Commissioner for
Refugees and the 1951 Convention contain a general definition of
refugees, not only a definition by categories as was the case during
the time of the League. Moreover, the Convention establishes a
formal link between the agency created by a Resolution of the
General Assembly and the Convention. The Contracting States

• U.N. doc. E/600 para 46.

' A Study of Statelessness, U.N. Publications Sales No. 1949, XIV.2.
8
U.N. Treaty Series vol. 189, p. 137.
» U.N. Treaty Series vol. 360, p. 130.

540
undertake to co-operate with the Office of the United Nations High
Commissioner for Refugees or any United Nations body which may
succeed it, in the exercise of its functions, in particular in its task of
supervising the application of the provisions of the Convention
(art. 35 of the Convention). Thus, a contractual link has been
established and States parties to the Convention undertake as a legal
duty what, as a result of a General Assembly Resolution, is only a
recommendation and therefore based on sufferance: the co-opera-
tion of States with the High Commissioner's Office in the exercise of
its protection function and the supervision of the application of the
treaty by the international body for the protection of refugees.

in. The Right of Asylum

The first need of the refugee is to be admitted to a country and to
receive asylum; the right to asylum is for him a corollary to the right
to life. On this matter, as is known, the Universal Declaration of
Human Rights provides in Article 14: " Everyone has the right to
seek and to enjoy in other countries asylum from persecution ".
Originally this provision read in the Draft Declaration: " Everyone
has the right to seek and to be granted asylum in other countries
from persecution ". But this wording was objected to by some States
on the ground that it implied an individual right to asylum while
asylum was granted by States in the exercise of their sovereignty.
The present text was called " artificial to the point of flippancy " by
Sir Hersch Lauterpacht.10 The Human Rights Commission of the
United Nations resolved in 1947 " to examine at an early opportunity
the question of the inclusion of the right of asylum of refugees from
persecution in the International Bill of Human Rights or in a special
Convention for the purpose ".11 However, efforts to have a provi-
sion on asylum incorporated in the Covenant on Civil and Political
Rights failed; none of the proposals received a majority.
In this situation the representative of France, Professor Ren6
Cassin, proposed in the Human Rights Commission in 1957 a Draft
Declaration on the Right of Asylum. The Commission adopted such
10
" The Universal Declaration of Human Rights " in British Yearbook of Inter-
national Law (1948) p. 374.
11
U.N. Doc. E/600 para 48.

541
a draft Declaration in 1960 and it was transmitted to the General
Assembly through the Economic and Social Council. The Third
Committee of the Assembly adopted in 1962 the Preamble and
Article 1. The work on the Declaration was then transferred to the
Sixth Committee which dealt with it from 1965 till 1967; on 14th
December 1967 the General Assembly adopted a Declaration on
Territorial Asylum. As can be seen the name was changed: the
word " right " was deleted in order not to give the impression that
there is an individual right to asylum, and the word " territorial "
was added in order to distinguish it from diplomatic asylum, with
which the Declaration does not deal. The text of the Declaration as
adopted unanimously by the General Assembly by Resolution 2312
(XXII) reads:12

DECLARATION ON TERRITORIAL ASYLUM

Noting that the purposes proclaimed in the Charter of the United

Nations are to maintain international peace and security, to develop
friendly relations among all nations, and to achieve international co-
operation in solving international problems of an economic, social,
cultural or humanitarian character, and in promoting and encouraging
respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language or religion,
Mindful of the Universal Declaration of Human Rights which declares
in article 14 that" (1) Everyone has the right to seek and to enjoy in other
countries asylum from persecution; (2) This right may not be invoked in
the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations ",
Recalling also paragraph 2 of article 13 of the Universal Declaration
of Human Rights which states " Everyone has the right to leave any
country, including his own, and to return to his country ",
Recognizing that the grant of asylum by a State to persons entitled to
invoke article 14 of the Universal Declaration of Human Rights is a
peaceful and humanitarian act and that as such it cannot be regarded as
unfriendly by any other State,
Recommends that, without prejudice to existing instruments, dealing
with asylum and the status of refugees and stateless persons, States should

12
Cf. the author's article " The U.N. Declaration on Territorial Asylum" in
Canadian Yearbook of International Law 1969, pp. 92-149.

542
base themselves in their practices relating to territorial asylum on the
following principles:
ARTICLE 1
1. Asylum granted by a State, in the exercise of its sovereignty, to
persons entitled to invoke article 14 of the Universal Declaration of
Human Rights, including persons struggling against colonialism, shall be
respected by all other States.
2. The right to seek and to enjoy asylum may not be invoked by any
person with respect to whom there are serious reasons for considering
that he has committed a crime against peace, a warcrime, or a crime
against humanity, as defined in the international instruments drawn up
to make provision in respect of such crimes.
3. It shall rest with the State granting asylum to evaluate the grounds
for the grant of asylum.
ARTICLE 2
1. The situation of persons referred to in article 1, paragraph 1, is,
without prejudice to the sovereignty of States and the purposes and prin-
ciples of the United Nations, of concern to the international community.
2. Where a State finds difficulty in granting or continuing to grant
asylum, States individually or jointly or through the United Nations shall
consider, in a spirit of international solidarity, appropriate measures to
lighten the burden on that State.

ARTICLE 3
1. No person referred to in article 1, paragraph 1, shall be subjected
to measures such as rejection at the frontier or, if he has already entered
the territory in which he seeks asylum, expulsion or compulsory return to
any State where he may be subjected to persecution.
2. Exception may be made to the foregoing principle only for over-
riding reasons of national security or in order to safeguard the population,
as in the case of a mass influx of persons.
3. Should a State decide in any case that exception to the principle
stated in paragraph 1 of this article would be justified, it shall consider
the possibility of granting to the person concerned under such conditions
as it may deem appropriate, an opportunity, whether by way of provi-
sional asylum or otherwise, of going to another State.

ARTICLE 4
States granting asylum shall not permit persons who have received
asylum to engage in activities contrary to the purposes and principles of
the United Nations.

543
 It may be useful to add a few remarks regarding the interpreta-
tion of this text. The first Article stresses again that asylum is
granted in the exercise of sovereignty, or more exactly in the exercise
of territorial supremacy; that it shall be respected by all other
States is already a principle of international law. The third paragraph
states the so-called principle of unilateral qualification. This also
follows a contrario from the obiter dictum of the International Court
of Justice in the Asylum Case which, as is known, concerned
diplomatic asylum, where it was held that the State granting
diplomatic asylum does not have the right of unilateral qualifica-
tion, inter alia on the ground that diplomatic asylum involved a
derogation from the sovereignty of the territorial State.13
Article 2 states a principle which can also be found, for instance,
in General Assembly Resolution 8 (I) of 12 February 1946 where it
is said that the refugee problem is " international in scope and
nature ". Already the founding fathers, Grotius, Suarez and Wolff,
considered that asylum was granted in pursuance of an international
humanitarian duty. It follows that the individual State granting
asylum acts as an agent of the international community; where the
burden on a State by the granting of asylum proves too heavy, that
State may expect that the international community will assist in
relieving it from the burden.
Article 3, perhaps the most important, states the so-called prin-
ciple of non-refoulement. This principle can also be found in the
1951 Convention in Article 33, which is one of the fundamental pro-
visions to which no reservations may be made. It reads there:

" 1 . 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.
2. The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for regarding
as a danger to the security of the country in which he is, or who,
having been convicted by a final judgement of a particularly serious
crime, constitutes a danger to the community of that country. "
18
1.C.J. Reports (1950), pp. 274, 275.

544
 The principle is perhaps more limited in the Convention since the
Convention does not deal with admission itself, and the provision is
therefore, at least according to the prevailing interpretation, con-
sidered to relate to persons who are already in the territory; but
Article 3 of the Declaration refers also to persons presenting them-
selves at the frontier, who should not be rejected if such rejection
would compel them to remain in or return to the territory of a State
where they would be subject to persecution.
The Declaration, as a Resolution of the General Assembly of the
United Nations, is, of course, not legally binding. It incorporates,
however, a number of generally recognised principles. As to the
principle of non-refoulement, it is difficult to assess its precise legal
character.
It has been incorporated in the Convention governing the
Specific Aspects of the Problem of Refugees in Africa, adopted by
the Organization of African Unity on 10th September 1969, and in
the American Convention on Human Rights, adopted on 22 Novem-
ber 1969 by the Organization of American States.14 It has been
affirmed by the Teheran Conference on Human Rights in 1968 and
the Resolution on Asylum to Persons in Danger of Persecution
adopted by the Committee of Ministers of the Council of Europe on
29th June 1967. The European Commission on Human Rights has
consistently held that expulsion or extradition to a country in which
basic human rights, as guaranteed by the European Convention on
Human Rights, might be either grossly violated or entirely suppres-
sed, constitutes inhuman treatment—which is prohibited by
Article 3 of the Convention. The Conference on the Status of
Stateless Persons, held in New York in 1954, stated in its Final
Act 15 that it had not been found necessary to incorporate an article
equivalent to Article 33 of the Refugee Convention in the Conven-
tion relating to the Status of Stateless Persons because that Article
was the expression of a " generally accepted principle ".16
Provisions relating to asylum have been embodied in the Con-
stitutions or aliens legislation of a considerable number of States,
14
OAS Official Records OEA/Ser.EK/XVI/1.1.
16
U.N. doc. E/Conf.l7/5/Rev.l.
16
Cf. the author's article " Recent Developments in the Law of Territorial Asylum "
in Human Rights Journal (1968), pp. 378-396.

545
thereby in many cases conferring upon the individual a subjective
right to asylum under municipal law.
The principle of non-refoulement in its wider sense, including
rejection at the frontier, can certainly be regarded as usage. In view
of its widespread acceptance in treaties and municipal legislation it
may by now, at least in its narrow sense—that is to say, in relation
to persons within the territory of the State—have acquired the
character of a rule of international law. At least one author has
considered it as a peremptory norm of international law.17
On the whole it would seem to be the meaning of the Declara-
tion that while asylum is still a right of States accorded in the
exercise of their sovereignty rather than a right of the individual,
this sovereignty should not be exercised in such a way as to refuse a
person admission, at least temporary admission, if such refusal
would subject him to persecution.
(To be continued)

Paul WEIS
Dr.jur., Ph.D.
Former Director of the Legal Division of the
Office of the United Nations High Commis-
sioner for Refugees

17
F. Berber Lehrbuch des Volkerrechts vol. I, p. 388.

546