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“Asylum” and “Refugee” in International Law

Published online by Cambridge University Press:  21 May 2009

E.W. Vierdag
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1. In the present paper I intend to discuss some developments in the practice of States granting asylum to certain categories of individuals, as well as the extent to which and the way in which this practice is influenced by the Convention on the Status of Refugees. “Asylum” is the protection a State may afford to an individual by letting him enter the territory of the State and allowing him to stay within it. A State has a nearly unfettered discretion to grant this protection to any alien it wishes. But the term “asylum” is not employed in ordinary cases of admission of aliens; it is reserved for cases where the alien in question has left his country for what may roughly be characterized as political reasons, and is admitted to another country.

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Articles
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Netherlands International Law Review , Volume 24 , Issue 1-2 , May 1977 , pp. 287 - 303
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Copyright © T.M.C. Asser Press 1977

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References

1. Concluded in Geneva in 1951; U.N.T.S., Vol. 189, p. 137Google Scholar ff, Trb. 1951, No. 131: hereinafter referred to as “the Convention” or “the Refugee Convention”.

2. I.J.L. v. State Secretary of Justice, Royal Decree of 10 01 1974Google Scholar, No. 38. Administratiefrechtelijke Beslissingen 1974, No. 118 (Reports of Administrative Decisions). All direct or indirect quotations from, and data about, the case are taken from this Report (translations by the author). “State Secretary” is approximately equivalent to “Under Minister”.

3. Although formally the Judicial Committee only advises the Crown by submitting a draft Royal Decree to it, the Committee in fact functions as the highest administrative tribunal, its Opinions counting nearly always as “decisions”.

4. I follow the English terminology as used in Oostvogels, S.A.M., “Foreign Deserters and Asylum in the Netherlands: the Case of Ralph J. Waver”, IV Neth. Yearb. of Int. Law (1973), pp. 143–192, at p. 184CrossRefGoogle Scholar, nt. 193, where also a short description of the procedural aspects of a petition to the Crown may be found.

5. See on the particulars of this difference, Sik, Ko Swan, “The Netherlands Law on Aliens”, I Neth. Yearb. of Int. Law (1970), p. 247–267, at p. 253 ff.CrossRefGoogle Scholar

6. See on the “liberal” and “restrictive” doctrines and practices with respect to the meaning of evasion of military service or desertion for the concept of “refugee” in the sense of the Convention, Grahl-Madsen, A., The Status of Refugees in International Law, Vol. I (Leyden: Sijthoff, 1966), p. 231Google Scholar ff. As in all instances where international legal protection of private persons is concerned, refugee-law entails a close relationship between international and municipal law. Thus the battles between these two international “schools of thought” are therefore also, or rather –in practice– predominantly fought in national legal arenas. In the Waver-case, dealt with exhaustively by Oostvogels, op.cit., the Judicial Committee of the Council of State had taken the “liberal” position; on the other hand, the Minister of Justice maintained the “restrictive” one. See their correspondence and related documents in Stb. 1972, No. 427, reported in Administratieve Beslissingen 1973, No. 19, and in part reprinted in Aspecten van Vluchtelingenrecht (Aspects of Refugee Law), (Deventer: Kluwer, 1972), p. 247–258Google Scholar. In the light of the wording of the Convention on the Status of Refugees –and consequently the text of article 15 of the Aliens Act– the “restrictive” doctrine is admittedly the stronger one. See infra, p. 291.

7. Compare e.g. the data compiled by Paludan, A. in Report on Problems of Refugees and Exiles in Europe, Vol. I, The New Refugees in Europe (Geneva: International Universtiy Exchange Fund, 1974).Google Scholar

8. The travaux préparatoires of the Convention are in U.N. doc. A/Conf. 2/S.R. 1–35; working papers and other documents: A/Conf.2/1–108. See on this point especially the General Discussion, A/Conf.2/SR.2, p. 9–26; SR. 3, p. 4–18.

9. Article 1 runs in part as follows: “… For the purpose of the present Convention the term ‘refugee’ shall apply to any person who … (2) 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 …”. For the sake of brevity I do not discuss here the Protocol Relating to the Status of Refugees of 1967 (Trb. 1967, No. 76; 6 Int. Legal Mat., (1967), p. 78Google Scholar ff) which removed the time limit from the definition of “refugee” of the Convention as it originally was.

10. See for a comprehensive analysis of these elements of Article 1, Grahl-Madsen, , op.cit., Vol. I, p. 173–252.Google Scholar

11. Typical for this changed situation is its recognition is Swiss practice, in which the legal criterion of objective physical danger was amended with “inner, psychological necessity” (“inneren, psychischen Zwangslage”) as a valid ground for eligibility. Lieber, observes: “Diese Fälle stehen heute rein zahlenmässig gegenüber jenen einer direkten Verfolgung an Leib und Leben eher im Vordergrund. Allgemein ist ersichtlich, dass Verfolgungs- oder Behinderungsmassnahmen oft mit subtileren und weniger offensichtlich ins Auge springenden Aktionen erfolgen;…”Google Scholar. Lieber, Viktor, Die neuere Entwicklung des Asylrechts im Völkerrecht und Staatsrecht. Unter besonderen Berucksichtigung der Schweizerischen Asylpraxis (Zürich: Schulthess Polygraphischer Verlag, 1973), p. 274Google Scholar; compare also p. 40.

12. See on the pertinent case-law Grahl-Madsen, , op.cit., Vol. I, pp. 242–248.Google Scholar

13. Weis, Paul, “The Legal Aspects of the Problems of de facto Refugees”, in : Report on Problems of Refugees and Exiles in Europe. Vol. II, Legal Report (Geneva: International University Exchange Fund, 1974), p. 2–5Google Scholar. A survey of the historical and political background of the emergence of the “new refugees” and their social and political characteristics is given in Vol. I of this Report, referred to in note 7, especially pp. 7–30.

14. Paludan, A., op.cit., Appendix 4, p. 2Google Scholar. See also Weis, , op.cit., p. 7.Google Scholar

15. See above, note 11.

16. Weis, mentions “the recently established ‘A’ status in the Netherlands” (Loc.cit., at p. 7, 12)Google Scholar. He refers to the circular letter of 21 February 1974, in which the Minister of Justice instructs the police how to deal with “applications for asylum” in the future. The instruction concerns also those persons with respect to whom there are not sufficient grounds to assume that they qualify as refugees. The importance of this new instruction lays mainly in the fact that it contains considerable procedural improvements. See Nederlands Juristenblad, 1974, p. 375–376Google Scholar. It only “establishes” an ‘A’ status in so far as it consolidates an already existing practice. I would say that the legal relevance of that practice is established rather by the decision of the Judicial Committee in the case of I.J.L. v. State Secretary of Justice, which sanctions it. The terminology of the Committee is misleading: although the words “entitled to asylum” (“asielgerechtigden”) would seem to indicate that there is a right to be granted asylum, it can be deduced from the context in which those words are used in the Opinion that there is no intention to say that such a right exists.

17. Or, as the case may be, in locations under its control outside its territory, such as embassies or warships (“diplomatic asylum”). I confine myself to territorial asylum.

18. 43 Annuaire de l'Institut de Droit International, (Session de Bath), Vol. II, p. 388Google Scholar ff. (Resolution on “Asylum in Public International Law”, Article 1).

19. Compare on this distinction van Panhuys, H.F. in Aspecten van Vluchtelingenrecht, p. 2Google Scholar. See on “status”, “treatment”, “legal position” and related terms Vierdag, E.W., The Concept of Discrimination in International Law. With Special Reference to Human Rights (The Hague: Nijhoff, 1973), p. 32 ff.CrossRefGoogle Scholar

20. The Status of Refugees in International Law, Vol. II, (Leyden: Sijthoff, 1972), p. 24Google Scholar. Article 32 runs as follows: “EXPULSION 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary”. Article 33 runs as follows: “PROHIBITION OF EXPULSION ON RETURN (REFOULEMENT) 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 particualr 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 country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.

21. Weis, P., “Recent Developments in the Law of Territorial Asylum”, in I Human Rights Journal (1968), pp. 378–396, at p. 386.Google Scholar

22. “… heutzutage (wird) von den meisten Staaten die Asylgewährung praktisch von der Flüchtlingsanerkennung abhängig gemacht…”. Lieber, , op.cit., p. 134.Google Scholar

23. Franz, F., “Das Asylrecht im Schatten der Flüchtlingskonvention”, in 81 Deutsches Verwaltungsblatt 1966, pp. 623–630, at p. 625Google Scholar (“… die irrige Annahme, die Flüchtlingskonvention regele das Asylrecht, hat zu einer bedenklichen Aushölung des Art. 16 Abs. 2 S. 2 GG geführt”). Text of Art. 16(2), last sentence, taken from Peaslee, A.J., Constitutions of Nations 3rd ed., Vol. III (The Hague: Nijhoff, 1968), p. 364CrossRefGoogle Scholar. See on this also Grahl-Madsen, , op.cit., Vol. I, p. 153 f.Google Scholar

24. See generally Bolesta-Koziebrodzki, L., Le droit d'asile (Leyden: Sijthoff, 1962), pp. 303–318.Google Scholar

25. See supra, note 18.

26. General Assembly Resolution 2312 (XXII) of 14 12 1967Google Scholar; text in U.N. Yearbook on Human Rights 1967, p. 383Google Scholar. On 29 June of that same year the Committee of Ministers of the Council of Europe adopted Resolution (67)14 on “Asylum to Persons in Danger of Persecution”. Text in I Human Rights Journal (1968), p. 394.Google Scholar

27. Text in VI International Legislation (1932–1934), ed. by Hudson, M.O. (Washington: Carnegie Endowment for International Peace, 1937), p. 607 ff.Google Scholar

28. Text in Hudson, M.O., ed., op.cit., Vol. VIII, (1948), p. 404 ff.Google Scholar

29. Text in Yearbook on Human Rights 1955, p. 329 ff.Google Scholar

30. 359 U.N.T.S., p. 273 ff.Google Scholar

31. Text in Int. Law Association, Report of the Fifty-fifth Conference, (1972), p. 195 ff.Google Scholar

32. Draft Convention on Territorial Asylum, Geneva 1972. Text in U.N. doc. E/5138/Add.1, 12 July 1972, Annex I; reprinted in Aspecten van Vluchtelingenrecht, p. 229–232Google Scholar. See also note 38.

33. Text in Hudson, M.O., ed., op.cit., Vol. VI, p. 483 ff.Google Scholar

34. Text in Hudson, M.O., ed., op.cit., Vol. VIII, (1948), p. 19 ff.Google Scholar

35. Art. 1 of the 1933 Convention: “The present Convention is applicable to Russian, Armenian and assimilated refugees, as defined by the Arrangements of May 12th 1926, and June 30th, 1928, subject to such modifications or amplifications as each Contracting Party may introduce in this definition at the moment of signature or accession.” (It is remarkable that also this refugee convention contains a provision dealing with asylum: Art. 3 prohibits “refoulement”). Art. 1 of the 1938 Convention: “1. For the purposes of the present Convention, the term “refugees coming from Germany” shall be deemed to apply to: (a) Persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact, the protection of the German government; (b) Stateless persons not covered by previous Conventions or Agreements who have left German territory after being established therein and who are proved not to enjoy, in law or in fact, the protection of the German government. 2. Persons who leave Germany for reasons of purely personal convenience are not included in this definition”.

36. I borrow this term from Wengler, W. (Völkerrecht (Berlin, Göttingen, Heidelberg: Springer Verlag, 1964), Vol. I, p. 439 ff.).CrossRefGoogle Scholar

37. See further on Article 1(3): Weis, P., “The United Nations Declaration on Territorial Asylum”, VII Canadian Yearb. of Int. Law (1969), p. 92–149, at pp. 106, 137–139Google Scholar.

38. At the request of the General Assembly a group of experts composed of representatives of 27 Member States met in Geneva from 28 April to 9 May 1975 to review the Draft Convention (U.N. doc.A/10177, 29 August 1975). This group replaced Article 1 by two Articles. The proposed new Article 1 reads: “Each Contracting State, acting in the exercise of its sovereign rights, shall use its best endeavours in a humanitarian spirit to grant asylum in its territory to any person eligible for the benefits of this Convention”. The new draft Article 2(1) reads: “A person shall be eligible for the benefits of this Convention if he, owing to well-founded fear of: (a) Persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, including the struggle against colonialism and apartheid; or (b) Prosecution or punishment for acts directly related to the persecution as set forth in (a); is unable or unwilling to return to the country of his nationality, or, if he has no nationality, the country of his former habitual residence”. (Annex to U.N. docA/10177, p. 11–14, 39) It seems to me that this new version does not invalidate the remarks made here about the original text.

39. See generally on this Grahl-Madsen, , op.cit. Vol. II, p. 94–98Google Scholar. Further e.g. Lieber, , op.cit., p. 29, 167Google Scholar and ibidem, note 23; Weis op.cit. in previous note, p. 143; Tammes, A.J.P., “Wat is de inhoud van het begrip ‘non-refoulement’ volgens het internationale recht?” (What is the Content of the Principle of Non-Refoulement in International Law? ) in Aspecten van Vluchtelingenrecht, pp. 56 ff., at p. 63–64Google Scholar. In the Final Act of the U.N. Conference of Plenipotentiaries which adopted the Convention Relating to the Status of Stateless Persons of 28 September 1954, the Conference stated that it was of the opinion that Article 33 of the Refugee Convention expresses a generally accepted principle (Text of the Resolution in 360 U.N.T.S., at p. 122–124).Google Scholar

40. Article 2 reads: “Non-refoulement. No person shall be subjected by a Contracting State to measures such as rejection at the frontier, return, or expulsion, which would compel him to return directly or indirectly to, or remain in a territory with respect to which he has well-founded fear of persecution, prosecution or punishment for any of the reasons stated in paragraph (1) of Article 1”.

41. 189 U.N.T.S. p. 148.Google Scholar

42. For a survey of the various practices, see the Report on Problems of Refugees and Exiles in Europe, Vol. I and II, referred to in notes 7 and 13.

43. A very interesting combination of asylum and (material) refugee status is prepared by Grahl-Madsen, in his elaboration of the 1972 Draft Convention on Territorial Asylum, to be published in the New York University Journal of International Law and Politics. (An International Convention on Territorial Asylum, privately circulated (Bergen, Norway: Norges Handelshøyskole, 1975), especially pp. 51–54Google Scholar, Section 6.4.).

44. U.N. doc.E/CN.4/L.454 and Rev. 1.

45. Section 1 of Article 14 runs as follows: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

46. Text with elaborations in A. Paludan, op.cit., Appendix 11.

47. Vierdag, E.W., op.cit., p. 38Google Scholar note 58.

48. See e.g., Weis, , op.cit., supra note 13, p. 15Google Scholar. Compare also draft Article 15(bis) of the Dutch Aliens Act, prepared by a working group on legal assistance to refugees, which provided that a residence permit can be issued to aliens who are not refugees, “if it cannot reasonably be expected that they return to their country of origin, taken into account the social and political situation in that country and their personal circumstances”. Text in De juridische en sociale status van asielzoekers in Nederland (The Legal and Social Status of Asylum Seekers in the Netherlands), (Utrecht, 1973), p. 6.Google Scholar