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The African Refugee Problem: Relevant International Conventions and Recent Activities of the Organization of African Unity

Published online by Cambridge University Press:  21 May 2009

Rose M. D'Sa
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In 1970, the number of refugees in Africa was estimated at three-quarters of a million; by 1980 it was estimated at five million and is still growing. One in every two of the ten million refugees in the world in 1980 was from Africa and the total number of African refugees now exceeds the population of many African countries. A discussion of the many inter-connected causes of the refugee problem in Africa, the magnitude of which continues to grow, would be beyond the scope of this analysis. However, at the 1981 International Conference on Assistance to Refugees in Africa (ICARA) it was agreed that the African refugee problem required consideration not merely in connection with the need to extend assistance to refugees, but also the need to pay attention to the forces in all their forms, that conspire to generate refugee influxes. In this regard the Conference agreed that besides natural calamities, all refugee situations in Africa are inextricably linked with cases of violations of human and peoples’ rights. Apart from these manifestly political issues, there are of course the humanitarian, social and economic aspects of the problems of refugees which must be dealt with by African States. These non-political aspects alone have created a formidable task for African governments, inter-governmental and non-governmental agencies as well as for the Organization of African Unity (OAU).

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Articles
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Netherlands International Law Review , Volume 31 , Issue 3 , December 1984 , pp. 378 - 397
Copyright
Copyright © T.M.C. Asser Press 1984

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References

1 Refugees in Africa: A Country by Country Survey, ICARA, Geneva 9–10 04 1981Google Scholar. (An UNHCR Booklet).

2. Ibid.

3. Held in Geneva from 9–10 April 1981, at a Ministerial level and under the joint sponsorship of the OAU, UN, and the UNHCR. The second Conference on this subject took place in Geneva in mid 1984: see further infra text at n. 80 et seq.

4. See Report of the OAU Secretary General on the ICARA, to the 37th Ordinary Session of the Council of Ministers, CM/1130 (XXXVII) Rev. 1, at p. 6.

5. The 51st Member of the OAU is the Sahrawi Arab Democratic Republic (SADR) which was controversially admitted to the OAU by its Secretary-General at the 38th Ordinary Session of the Council of Ministers in February 1982. This led to virtual paralysis of the OAU for two years. The question of whether the SADR is in fact a State in international law is, however, debatable. It has only been recognized as such by some 50 States, chiefly those of the Third World.

6. For example, it created the Ad Hoc Commission (now the Commission of Fifteen) on the Problem of Refugees in 1964 to assist in removing the friction between Rwanda and Burundi existing at that time: see CM/Res. 19(11), 29 February 1964. The Commission of Fifteen was recently sent to selected Member States to study the refugee problem. These Missions, which took place between August and October 1980, were accompanied by UNHCR representatives and held discussions with governmental representatives of the countries visited. They drew conclusions and made recommendations on many and varied issues attendant on the problems of refugees: see “Report on Missions of the Commission of Fifteen on Refugees in Africa to the Thirty-Sixth Ordinary Session of the Council of Ministers, Doc.CM/1093/XXVI.

7. For the text: see Annex to GA Res. 428(V), 14 December 1950. The UNHCR has come to be regarded as the principal coordinator of UN aid in situations involving refugees. For a discussion of the role and competence of the UNHCR see D.W. Greig, “The Protection of Refugees and Customary International Law”, Australian Yearbook of International Law, (1983) pp. 108–141 at p. 122 et seq.

8. Paragraph 8(g) of the Statute of UNHCR and Rule 38 of the Executive Committee's Rules of Procedure.

9. OAU Assembly Res. 26(II) October 1965, CM/Res. 104(IX) September 1967;CM/Res. 149 (XI), September 1968; and CM/Res. 814(XXXV), June 1980.

10. OAU Doc. CM/267/Rev. 1. The Convention entered into force on 20 June 1974. For text: see8 ILM 1288.

11. Signed by Prince Sadruddin Aga Khan, UN High Commissioner for Refugees and H.E. Diallo Telli, Administrative Secretary General of the OAU, HCR/81/69; GE. 69–13392.

12. See infra text at n. 56. For further details of the OAU/BPEAR see Aiboni, S.A., Protection of Refugees in Africa, (Uppsala, 1978) at p. 72 et seqGoogle Scholar. and author's Ph.D. thesis, ‘The Relationship between the UN and the OAU in the Fields of International Peace and Security and of Economic and Social Development,” (unpublished, 1982) Faculty of Law, University of Birmingham, U.K., Part II at p. 135Google Scholar et seq.

13. See the Collection of International Instruments Governing Refugees, (2nd Edn.) UNHCR, Geneva 1979Google Scholar.

14. This Convention entered into force on 22 April 1954, in accordance with Art. 43. For text: see UN Treaty Series No. 2545, Vol. 189, p. 137.

15. Art. 39(2) and (3) of the 1951 Convention.

16. OAU Doc. CM/267/Rev. 1, February 1969: see supra n. 10.

17. Andemicael, B., Peaceful Settlement Among African States: Rules of the UN and the OAU, UNITAR (New York, 1972) at p. 180Google Scholar.

18. See for instance AHG/Res. 26(II) of October 1965 on “The Problems of Refugees in Africa”, paragraph 7.

19. This provision is identical to Art. 35(2)(a-c) of the 1951 Convention which provides for similar co-operation by Contracting States with the UNHCR.

20. In the event that the provisions of two treaties are incompatible, the relation between them would primarily be a matter of interpretation. Customary international law provides that norms in one treaty may override those contained in another if the former norms represent jus cogens: see Brownlie, I., Principles of Public International Law, (Oxford, 1983) at p. 622Google Scholar. For the position under the Vienna Convention on the Law of Treaties, see articles 30 and 59 thereof.

21. For text see Annex to GA Res. 428(V), 14 December 1950.

22. Grahl-Madsen, A., “The Status of Refugees in International Law,” Vol. 1 (Leyden, 1966) pp. 75–78Google Scholar.

23. For a further discussion of the criteria for categorizing ‘political refugees’ and the difficulties involved in distinguishing between ‘economic refugees’ and ‘econmic migrants’ see Ghoshal, A., and Crowley, T.M., “Refugees and Immigrants: A Human Rights Dilemma”, Human Rights Quarterly (1983) pp. 327–347Google Scholar at p. 328 et seq.

24. Grahl-Madsen, A., “International Refugee Law Today and Tomorrow”, Archiv Des Volkerrechts (1982) pp. 410–467Google Scholar, at p. 442.

25. See infra text accompanying n. 43.

26. Grahl-Madsen, A., “International Refugee Law Today and Tomorrow”, op.cit., at p. 440Google Scholar.

27. For example, GA Res. 3143 (XXVIII) of 14 December 1973, requested the High Commissioner “to continue his assistance and protection activities in favour of refugees within his mandate as well as for those to whom he extends his good offices or is called upon to assist in accordance with relevant resolutions of the General Assembly”. By GA Res. 32/68, 8 December 1977 the General Assembly continued UNHCR's mandate and noted “the outstanding work… performed… in providing international protection to refugees and displaced persons…”. By Res. 35/41, 25 November 1980, the General Assembly referred to UNHCR's responsibilities “for protecting and assisting refugees and displaced persons throughout the world”. See generally, Goodwin-Gill, G.S., The Refugee in International Law, (1983) at p. 10Google Scholar et seq.

28. See further Goodwin-Gill, ibid, at p. 12.

29. See infra text at n. 38.

30. See infra text at n. 39.

31. See the Document of the Conference on the Legal, Economic and Social Aspects of the African Refugee Problems, AFR/Ref./Conf. 1967/No. 2, p. 10 (mimeo).

32. Andemicael, op.cit., p. 181.

33. See the Report of the UNHCR, to the 11th ordinary session of the OAU/BPEAR Co-ordinating Committee, Addis Ababa, March 1981, BPEAR/CO-CTTEE/48(XI) Rev. 1, Annex K.

34. See GA Res. 2145(XXI) of 28 October 1966 and ICJ Rep. 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia, (South West Africa). See also R. Higgins, “The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Art. 25 of the Charter?” 20 ICLQ (1972) pp. 270–289.

35. See generally Andemicael, op.cit.

36. See supra, text at n. 21.

37. See generally Dinstein, V., “Refugees and the Law of Armed Conflict”, 12, Israeli Yearbook on Human Rights, (1982), pp. 94–109Google Scholar at p. 107 et seq.

38. OAU Document CM/267/Rev. 1 of February 1969 and CM/228, Annex I of September 1968.

39. This includes financial assistance for military purposes, which is channelled through the Liberation Committee of the OAU.

40. See Art. 28 of the UN Convention of 1951.

41. See supra text at n. 37.

42. See supra text at n. 35.

43. The phrase “rejection at the frontier” is not included in the text of Article 33 of the UN Convention. However, it is arguable that the latter text nevertheless does, by implication, extend the principle of non-refoulement, to both potential refugees (i.e. seekers of asylum) as well as those who have already been classified by the State authorities as a refugee. See Greig, op.cit., p. 133.

44. See supra text at n. 21.

45. GA Res. 2312 (XXII) of 14 December 1967 by which expulsion is permitted in exceptional situations where there may be “overriding interests of national security” or a “need to safeguard the population”.

46. See supra text following n. 35.

47. Ibid.

48. For further development of this principle: see infra text at n. 67 et seq. The principle of burden sharing also finds support in UN practice in Article 2 of the 1967 Declaration on Territorial Asylum, adopted unanimously by the General Assembly in Res. 2312 (XXII), 14 December 1967. See further Weis, P., ‘The UN Declaration on Territorial Asylum,” 7 Can.YIL (1969) pp. 92–149Google Scholar.

49. See Andemicael, op.cit., at p. 183.

50. The UN's Universal Declaration of Human Rights(G.A. Res. 217 (II) of 10 December 1948) does, however, provide in its Art. 14 that there is a right to “seek and enjoy in other countries asylum from persecution.” This is nevertheless a mere declaration, whereas the OAU provisions constitute a treaty obligation and is, in any event, not as widely worded as to suggest a right to receive asylum. See Andemicael, , op.cit., at p. 182Google Scholar, and Gill, Goodwin op.cit. at p. 107Google Scholar et seq.

51. See for instance, AHG/Res. 26(II) of October 1965 and GA Res. 32/67, 8 December 1977.

52. See Art. V(5) of the OAU Convention of 1969.

53. See infra text at n. 56.

54. Ibid.

55. See Introduction to The Recommendations from the Arusha Conference on the African Refugee Problem, published by the Scandinavian Institute of African Studies, (Uppsala, 1981), at p. 6Google Scholar.

56. As originally contained in OAU Document Ref. AR/CONF/Rept./Rec.1/1–16.

57. See CM/Res. 727(XXXIII), 1979 entitled “Resolution on the Situation of Refugees in Africa and on Perspective Solutions to their Problems in the 1980s.”

58. GA Res. 34/61, 29 November 1969.

59. See supra, text at n. 54.

60. The position is now improved since by 1 February 1984, 43 out of a possible fifty African States (supra n. 5) were parties to either or both the UN instruments and at the end of December 1982, 25 African States were parties to the OAU Convention. For details see Goodwin-Gill, op.cit., Annex XIV.

61. See supra text at n. 29.

62. See Recommendation 6(8) of the Arusha Conference.

63. See supra text following n. 34.

64. See supra text at n. 35 and n. 49.

65. No. 8 (XXVIII) entitled “Determination of Refugee Status”.

66. See further infra text at n. 86.

67. See supra text at n. 48.

68. Ibid.

69. See supra n. 6.

70. See Opening Statement by the Director, Political Department of OAU, to the 11th Ordinary Session of the Co-ordinating Committee of the OA U/BPEAR, op. cit.

71. Discussed supra text at n. 52.

72. By Art. 34 “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”

73. See generally supra, at n. 36.

74. See Report of the OAU/BPEAR's Activities for the Period April 1980 to February 1981, BPEAR/CO-CTTEE/48(XI) Rev. 1, Annex C, p. 1, et seq.

75. See also supra text at n. 12.

76. See Opening Statement by the Director, Political Department of the OAU to the 11th Ordinary Session of the Co-ordinating Committee of the OAU/BPEAR, Addis Ababa, March 1981, BPEAR/CO-CTTEE/48(XI) Rev. 1, Annex B.

77. These meetings occur on an annual basis, the first having taken place in Nairobi, Kenya, 5–7 June 1980. This is an aspect of OAU/UN co-operation which is in accordance with GA Res. 34/21 of 1979 and subsequent resolutions, on co-operation between the two organizations.

78. See the Report of the OAU Secretary-General on the ICARA, CM/1130(XXXVII) Rev. l, p. 5.

79. See the UN Secretary-General's report to the GA Doc. A/37/522 which provides detailed data of pledges and contributions made at the conference.

80. GA Res. 37/197 of 18 December 1982. ICARA II, which was held from 9–11 July 1984, adopted by consensus a Declaration and Programme of Action aimed at an effective long-term strategy. See UN Doc. A/CONF. 125/L.1, 10 July 1984.

81. See UN Doc. A/Conf. 125/1, 31 January 1984 at p. 7 et seq.

82. See ICARA – Report of the Secretary-General, GA Doc. A/38/526,25 October 1983 at p.5.

83. The projects listed fall into three main categories. Firstly, those designed to develop human resources through basic education, skills training and approved health facilities; secondly those designed to increase productivity in agriculture and related fields and finally, those designed to expand transport infra-structure. Although all these projects are primarily geared towards helping refugees become more self-reliant and productive members of their societies, they will also be of benefit to nationals of the asylum countries. For full table of projects, see UN Doc. A/Conf. 125/1 op.cit. at p. 8 et seq.

84. By February 1984, 96 out of a total of over 150 States were parties to the UN Convention and/or to the Protocol, and by the end of 1982 out of a total of about 50 African States, 25 were parties to the OAU Convention.

85. See the Commentary to Guidelines for National Refugee Legislation, adopted by the OAU/UNHCR Working Group on Arusha Follow-up, Second Meeting, Geneva, 4–512 1980 HCR/120/41/80Google Scholar; GE. 81-01061 p. 2.

86. Guidelines for National Refugee Legislation, adopted by the OAU/UNHCR Working Group on Arusha Follow-up Second Meeting, Geneva4–512 1980Google Scholar; HCR/120/33/80.