Article 14(2) of the universal declaration of human rights and exclusion from international refugee protection

Refugee Survey Quarterly

Volumn 27, Issue 3, 2008, Pages 53-75

  Kapferer, Sibylle ^a  

^a NONE

Author keywords

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ASYLUM SEEKER; HUMAN RIGHTS; IMMIGRATION POLICY; INTERNATIONAL LAW; REFUGEE; UNITED NATIONS;

EID: 54949133665     PISSN: 10204067     EISSN: 1471695X     Source Type: Journal    
DOI: 10.1093/rsq/hdn045     Document Type: Article

References (149)

1. UNGA res. 217A (III), 10 Dec. 1948.
2. The Declaration concerning Atrocities signed on 30 Oct. 1943 at the Moscow Conference by President Roosevelt, Prime Minister Churchill, and Premier Stalin ("Moscow Declaration") covered "atrocities, massacres and cold-blooded mass executions" by Hitlerite forces (para. 1). Under the Moscow Declaration, members of the German military and of the Nazi party who were responsible for or had taken a consenting part in these atrocities, massacres, and executions would be sent back to the countries in which these crimes had been committed to be judged and punished according to the laws of these countries (para. 3), while Germans whose crimes had no particular geographical location were to be punished by joint decision of the government of the Allies (para. 6).
3. The London Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis concluded on 8 Aug. 1945 (82 UNTS 279) by the United States of America, the United Kingdom, France, and the Soviet Union provided that "nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes" (art. 4). F. Morgenstern, "Asylum for war criminals, quislings and traitors", British Yearbook of International Law, 1948, 383, lists further examples of agreements confirming this obligation.
4. Pursuant to resolutions adopted by its Council in 1945 and 1946, the United Nations Relief and Rehabilitation Authority (UNRRA), established in November 1943 inter alia to provide relief to populations in areas under the control ofthe Allied Powers (which were referred to as "United Nations" at the time) did not provide assistance to displaced persons who collaborated with the enemy or committed crimes against the interests or nationals of the United Nations. See A. Grahl-Madsen, The Status of Refugees in International Law, Vol. I, Leyden, A.W. Sijthoff, 1966, 271.
5. UNGA res. 8(I), 14 Feb. 1946.
6. UNGA res. 62(I), 15 Dec. 1946, annex.
7. The agreements and arrangements concerning certain groups of refugees concluded during the inter-war period did not contain exclusion provisions of this kind. The Convention regarding the Status of German refugees of 10 Feb. 1938 (192 LNTS 59) expressly removed from its scope "persons who leave Germany for reasons of purely personal convenience". This clause, however, seems to have been intended to cover persons who fell outside the scope of the Convention because they left Germany for reasons other than political, religious, or racial ones, including, for example, being prosecuted for breaches of the common law. See I. C. Jackson, The Refugee Concept in Group Situations, The Hague/London/Boston, Martinus Nijhoff Publishers, 1999, 24. A similar clause was contained in the Protocol of 14 Sep. 1939 on Refugees Coming from Austria (198 LNTS 141).
8. UNGA res. 428(V), 14 Dec. 1950, annex.
9. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 Apr. 1954) 189 UNTS 137.
10. See UNHCR, "Background Note on the Application of the Exclusion Clauses of article 1F of the 1951 Convention relating to the Status of Refugees", UN Doc. HCR/GIP/03/05, 4 Sep. 2003 (hereafter: "Background Note on Exclusion") for details on the interpretation and application of art. 1F of the Refugee Convention. Additional information on art. 1F ofthe Refugee Convention can be found in the Special Issue on Exclusion, 12 International Journal of Refugee Law, Special Supplementary Issue (2000),
11. and G. Gilbert, "Current issues in the application of the exclusion clauses", in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, Cambridge, Cambridge University Press, 2003, 425.
12. The same applies for exclusion provisions in regional refugee instruments which complement the Refugee Convention, notably the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 Sep. 1969, entered into force 20 Jun. 1974) 1001 UNTS 45. With regard to exclusion based on criminal conduct, see UNHCR, "Background Note on Exclusion", [I op. cit. I], para. 7.
13. Refugee Convention, art. 1D(2). This provision currently applies to certain categories of Palestinian refugees. See UNHCR, [I Note on the Application of article 1D I], Oct. 2002. A similar provision is contained in para. 7(c) of UNHCR's Statute.
14. Refugee Convention, art. 1E.
15. See also UNHCR's Statute, para. 7(b).
16. UNGA res. 8(1), 14 Feb. 1946, preamble.
17. Ibid., para. (a).
18. Ibid., para. (c)(ii).
19. Ibid., para. (d).
20. For example, Byelorussia (GAOR, 1st Session, 1st Part, Third Committee, 7th Meeting, 4 Feb. 1946, 18) and Australia (ibid., 19). For the Soviet Union, real humanitarianism and the very purposes of the United Nations required that such people be punished (GAOR, 1st Session, 1st Part, Third Committee, 8th Meeting, 5 Feb. 1946, 23). The Ukrainian delegate stressed the need for help with extradition (GAOR, 1st Session, 1st Part, Third Committee, 6th Meeting, 1 Feb. 1946, 15).
21. Poland, for example, considered that quislings should not have the right to call for UN assistance (GAOR, 1st Session, 1st Part, Third Committee, 5th Meeting, 30 Jan. 1946, 13-14). Belgium distinguished between (i) displaced persons; (ii) war criminals; (iii) traitors; and (iv) political dissidents. While machinery for dealing with war criminals existed but did not always function adequately, there could be no possible question of affording protection of any kind to traitors (GAOR, 1st Session, 1st Part, Third Committee, 5th Meeting, 30 Jan. 1946, 14). The Soviet Union urged that all help to war criminals and quislings should stop (GAOR, 1st Session, 1st Part, Third Committee, 7th Meeting, 4 Feb. 1946, 20). In response to concerns that a refugee organization would serve to protect war criminals and collaborators, the South African representative stated that the exact opposite would be the case, and that such a body would be of assistance in rounding up these criminals (GAOR, 1st Session, 1st Part, Third Committee, 8th Meeting, 5 Feb. 1946, 16).
22. GAOR, 1st Session, 1st Part, 29th Plenary Meeting, 12 Feb. 1946, 414-15.
23. UNGA res. 3(I), 13 Feb. 1946.
24. GAOR, 1st Session, 1st Part, 30th Plenary Meeting, 12 Feb. 1946, 418.
25. Ibid., 419.
26. This view was shared by the United Kingdom (ibid., 422).
27. Ibid., 432-3.
28. UNGA, res. 62(I), 15 Dec. 1946, annex.
29. IRO Constitution, annex I, part I, sections A-C.
30. Ibid., section D.
31. The notion that no international assistance should be given to traitors, quislings, and war criminals, and that nothing should be done to prevent in any way their surrender and punishment was also listed among the general principles which formed an integral part of the definition of those of concern to the Organization: IRO Constitution, annex I, para. 1(c).
32. Pursuant to annex I, part I, section C(1)(a)(i) of the Constitution, persecution (or fear thereof) because of race, religion, nationality, or political opinions constituted a valid objection to returning to the country of origin or former habitual residence. For a more detailed discussion of the concept of "persecution" in the IRO Constitution, see I. C. Jackson, The Refugee Concept in Group Situations, op. cit. 35-9.
33. For example, Brazil urged that war criminals and quislings should not be allowed to take advantage of the fundamental freedoms guaranteed in the UN Charter to escape punishment (GAOR, 1st Session, 2nd Part, Third Committee, 17th Meeting, 8 Nov. 1946, 93). Belgium considered that war criminals should be found and delivered over to justice (ibid., 95).
34. France favoured the exclusion of war criminals from the benefits of the IRO (GAOR, 1st Session, 2nd Part, Third Committee, 18th Meeting, 9 Nov. 1946, 100), while the Netherlands called for the exclusion of traitors and quislings (GAOR, 1st Session, 2nd Part, Third Committee, 19th Meeting, 9 Nov. 1946, 101-2). Argentina expressed the hope that war criminals and traitors would be tried and punished for their crimes ( ibid., 108).
35. GAOR, 1st Session, 2nd Part, Third Committee, 16th Meeting, 6 Nov. 1946, 88.
36. See the statements of Yugoslavia (GAOR, 1st Session, 2nd Part, Third Committee, 19th Meeting, 9 Nov. 1946, 103) and Ukraine (ibid., 104-5).
37. Byelorussia wished to distinguish genuine refugees from war criminals, quislings, and traitors (ibid., 106). Poland considered it essential that the IRO Constitution exclude all persons unworthy of its aid (GAOR, 1st Session, 2nd Part, Third Committee, 34th Meeting, 28 Nov. 1946, 194).
38. The US delegate rather sweepingly agreed with the statement of the Soviet representative that persons in military units which served on the side of Hitlerite Germany were war criminals, but noted that the IRO Constitution specifically mentioned war criminals, quislings, and traitors as persons who would not be the concern of the Organization ( ibid., 195).
39. For example, the Soviet Union (GAOR, 1st Session, 2nd Part, Third Committee, 16th Meeting, 6 Nov. 1946, 85-8), Poland (GAOR, 1st Session, 2nd Part, Third Committee, 17th Meeting, 21 Nov. 1946, 89-90), Uruguay (GAOR, 1st Session, 2nd Part, Third Committee, 18th Meeting, 9 Nov. 1946, 100), Ukraine (GAOR, 1st Session, 2nd Part, Third Committee, 19th Meeting, 9 Nov. 1946, 104), and Byelorussia (ibid., 106).
40. For the Rapporteur of the Special Committee on Refugees and Displaced Persons, who presented the draft Constitution in ECOSOC, the chapter containing definitions of the terms "refugee" and "displaced person" constituted the essential part of the work of the committee, as by laying down the inclusion requirements and defining exclusion categories, "it envisaged, for the first time, a settlement of the problem as a whole,....": ECOSOC, Official Records, 1st Year, 2nd Session, 13th Meeting, 13 Jun. 1946, 94-5.
41. Belgium, for example, stressed that political opponents had a right to aid and protection: GAOR, 1st Session, 2nd Part, Third Committee, 17th Meeting, 8 Nov. 1946, 95.
42. For example, the United States (GAOR, 1st Session, 2nd Part, Third Committee, 17th Meeting, 8 Nov. 1946, 91-2), Brazil (ibid., 93), and the Netherlands (GAOR, 1st Session, 2nd Part, Third Committee, 30th Meeting, 21 Nov. 1946, 177).
43. GAOR, 1st Session, 2nd Part, Third Committee, 18th Meeting, 9 Nov. 1946, 96.
44. A manual issued by the IRO to provide guidance on the interpretation and application of the eligibility criteria of the Constitution for eligibility officers mentions IRGUN as an example of a terrorist organization, without further explanation of the criteria applied. See IRO, Manual for Eligibility Officers (hereafter: IRO, Eligibility Manual), Impriméries populaires, Geneva, undated (circulated in 1950), 39.
45. GAOR, 1st Session, 2nd Part, Third Committee, 36th Meeting, 29 Nov. 1946, 204, with support by France (ibid., 204-5)
46. and the United States (ibid., 205).
47. See also below at 3.1. and 3.2.
48. IRO, Eligibility Manual, op. cit., 34-5. The Manual simply states that "[w]hen a crime has been committed and the criminal is abroad, the government who intends to try him requests his extradition" and provides examples of crimes that usually come under extradition treaties.
49. ECOSOC res. 1/5, 16 Feb. 1946.
50. Australia, Chile, China, France, Lebanon, United States of America, United Kingdom, and the Soviet Union.
51. For a summary of the history of the UDHR, see J. Humphrey, "The universal declaration of human rights: Its history, impact and juridical character", in B. C. Ramcharan (ed.), Human Rights Thirty Years after the Universal Declaration, The Hague/Boston/London, Martinus Nijhoff, 1979, 21.
52. See also J. Morsink, The Universal Declaration of Human Rights - Origins, Drafting and Intent, Philadelphia, University of Pennsylvania Press, 1999.
53. UN Doc. E/CN.4/21, 1 Jul. 1947, annex F, art. 14.
54. For a summary of the discussions, see G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn., Oxford, Oxford University Press, 2007, 358-61.
55. J. Morsink, The Universal Declaration of Human Rights - Origins, Drafting and Intent, op. cit., p. 11, notes that the issue was brought up by the Soviet Union.
56. This Working Group was established by the Commission on Human Rights at its second session in December 1947: UN Doc. E/800, 17 Dec. 1948, paras 16-17.
57. UN Doc. E/CN.4/57, 10 Dec. 1947, chapter III, art. 14, comment.
58. Ibid., chapter III, art. 14, second sentence. J. Morsink, The Universal Declaration of Human Rights - Origins, Drafting and Intent, op. cit., p. 76, reports that the text adopted was based on a proposal by the Philippines.
59. UN Doc. E/CN.4/SR.37, 13 Dec. 1947, 9-10.
60. UN Doc. E/CN.4/82, Add.8, 6 May 1948.
61. UN Doc. E/CN.4/AC.1/SR.37, 28 May 1948, 10, 13.
62. Ibid., 11.
63. Ibid.
64. Ibid.
65. UN Doc. E/CN.4/95, 21 May 1948, Annex A, art. 11(2).
66. UN Doc. E/CN.4/99, 24 May 1948, art. 11.
67. UN Doc. E/CN.4/SR.56, 3 Jun. 1948, 9.
68. Ibid.
69. Ibid., 9-10.
70. Ibid., 10-11.
71. Ibid., 11-12.
72. Ibid.
73. ECOSOC res. 151 (VII), 26 Aug. 1946.
74. UN Doc. E/800, 28 Jun. 1948, annex A, art. 12.
75. GAOR, 3rd Session, 1st Part, Third Committee, 121st Meeting, 3 Nov. 1948, 327-8.
76. Ibid., 339.
77. GAOR, 3rd Session, 1st Part, Third Committee, 122nd Meeting, 4 Nov. 1948, 341.
78. GAOR, 3rd Session, 1st Part, Third Committee, 121st Meeting, 3 Nov. 1948, 328.
79. Ibid., 334.
80. Ibid., 337-8.
81. GAOR, 3rd Session, 1st Part, Third Committee, 122nd Meeting, 4 Nov. 1948, 346.
82. Ibid., 347.
83. UN Doc. A/777, 7 Dec. 1948, art. 15.
84. GAOR, 3rd Session, 1st Part, Third Committee, 177th Meeting, 6 Dec. 1948, 864-5.
85. The following countries abstained: Byelorussia, Czechoslovakia, Poland, Saudi Arabia, Ukraine, Union of South Africa, Soviet Union, Yugoslavia: GAOR, 3rd Session, 1st Part, 183rd Plenary Meeting, 10 Dec. 1948, 933.
86. UNGA res. 319A (IV), 3 Dec. 1949.
87. ECOSOC res. 248B (IX), 8 Aug. 1949.
88. The ECOSOC draft for UNHCR's Statute stated that persons falling within the exclusion provisions of the future convention would also be excluded from the High Commissioner's mandate: ECOSOC res. 319A (XI), 11 Aug. 1950, annex, chapter III, C(1).
89. UN Doc. A/C.3/L.114, 24 Nov. 1950.
90. UN Doc. A/C.3/L.115, 24 Nov. 1950.
91. UN Doc. A/C.3/L.122, 24 Nov. 1950: "The term refugee shall not apply: (a) to persons who have committed non-political crimes; (b) to persons who have committed crimes under article VI of the Statute of the International Military Tribunal approved at London; (c) to persons guilty of acts contrary to the principles and purposes of the United Nations."
92. UN Doc. A/C.3/L.131/Rev.1, 1 Dec. 1950, chapter III, C, para. 2(d).
93. GAOR, 5th Session, Third Committee, 332nd Meeting, 1 Dec. 1950, 377 (para. 33).
94. UN Doc. A/C.3/L.133, 1 Dec. 1950.
95. GAOR, 5th Session, Third Committee, 334th Meeting, 4 Dec. 1950, 391 (para. 34).
96. Ibid., 380 (para. 68).
97. The Conference of Plenipotentiaries was established by UNGA res. 429(V), 14 Dec. 1950. It met in Geneva on 2-25 Jul. 1951.
98. UN Doc. E/AC.32/5;E/1618, 17 Feb. 1950, annex I, art. 1C.
99. UN Doc. A/1385, 22 Sep. 1950, appendix II, chapter I, art. IC.
100. The French representative explained that his delegation had sought to broaden the refugee definition, and that it had gone further than the IRO Constitution by providing fewer restrictive clauses. He also stated that the exclusion of war criminals, ordinary criminals, and persons guilty of crimes against humanity was based on concern for international morality: ECOSOC, Official Records, 11th Session, 406th Meeting, 11 Aug. 1950, 276 (paras 55 and 57). During the second session of the Ad Hoc Committee on 14-15 Aug. 1950, the French delegate stated that the incorporation of a reference to art. 14(2) UDHR in the exclusion provision adopted by ECOSOC had brought the Convention into accordance with the requirements of international morality: UN Doc. E/AC.32/SR.33, 20 Sep. 1950, 8.
101. ECOSOC res. 319B (XI), 16 Aug. 1950, para. 2.
102. UN Doc. A/C.3/L.131/Rev.1, 1 Dec. 1950, chapter I, art. 1, para. C(1).
103. GAOR, 5th Session, Third Committee, 332nd Meeting, 1 Dec. 1950, 377 (para. 33).
104. UN Doc. A/C.3/L.133, 1 Dec. 1950.
105. GAOR, 5th Session, Third Committee, 332nd Meeting, 1 Dec. 1950, 378 (para. 39).
106. Ibid., 380 (para. 68).
107. UNGA res. 429(V), 14 Dec. 1950, annex, chapter I, art. 1E.
108. See for example G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, op. cit., 172-91.
109. UN Doc. A/CONF.2/74, 13 Jul. 1951.
110. See the UK delegate's statements in UN Doc. A/CONF.2/SR.3, 19 Nov. 1951, 15; UN Doc. A/CONF.2/SR.24, 27 Nov. 1951, 4-5, 8; UN Doc. A/CONF.2/ SR.29, 28 Nov. 1951, 11-12, 14-15.
111. UN Doc. A/CONF.2/SR.29, 28 Nov. 1951, 12.
112. Ibid., 14.
113. See the French delegate's statements in UN Doc. A/CONF.2/SR.24, 27 Nov. 1951, 5-6. 10, 12, 13; UN Doc. A/CONF.2/SR.29, 28 Nov. 1951, 13.
114. UN Doc. A/CONF.2/76, 13 Jul. 1951.
115. UN Doc. A/CONF.2/SR.24, 27 Nov. 1951, 6-8.
116. UN Doc. A/CONF.2/SR.3, 19 Nov. 1951, 7.
117. UN Doc. A/CONF.2/SR.24, 27 Nov. 1951, 9.
118. Ibid., 10-11.
119. See also UN Doc. A/CONE2/SR.29, 28 Nov. 1951, 14-15, 24.
120. UN Doc. A/CONE2/SR.24, 27 Nov. 1951, 13.
121. See also UN Doc. A/CONE2/SR.29, 28 Nov. 1951, 23.
122. Ibid., 17.
123. See above footnote 84.
124. UN Doc. A/CONE2/L.102/Add.2, 24 Jul. 1951.
125. GAOR, 1st Session, 1st Part, Third Committee, 8th Meeting, 5 Feb. 1946, 22.
126. See above at 2.3.2.
127. GAOR, 3rd Session, 1st Part, Third Committee, 121st Meeting, 3 Nov. 1948, 330.
128. UN Doc. E/CN.4/184, 13 May 1949, para. 6.
129. UN Doc. A/CNA/SR. 16, 5 May 1949, paras 67 75.
130. See also N. Robinson, The Universal Declaration of Human Rights. Its Origin, Significance, Application, and Interpretation, New York, Institute of Jewish Affairs, World Jewish Congress, 1958, 120-1,
131. and the discussion of the notion of asylum in G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, op. cit., 355-69.
132. See for example F. Morgenstern, "Asylum for war criminals, quislings and traitors", op. cit., 383-6.
133. See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UN doc. HCR/IP/4/Eng/Rev.1, Geneva, 1979, re-edited 1992, para. 28.
134. Article 33(1) of the 1951 states: "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion." Article 33(2) provides: "The benefit of [article 33(1)] 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 [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."
135. For a detailed discussion, see E. Lauterfacht and D. Bethlehem, "The scope and content of the principle of non-refoulement: Opinion", in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, op. cit., 87.
136. See for example P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis, Cambridge, Cambridge University Press, 1995, 342.
137. See E. Lauterfacht and D. Bethlehem, "The scope and content of the principle of non-refoulement: Opinion", op. cit., 113.
138. See for example UNHCR, "Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol", 26 Jan. 2007 (hereafter: "Advisory Opinion").
139. See also E. Lauterpacht and D. Bethlehem, "The scope and content of the principle of non-refoulement: Opinion", op. cit., 87,
140. and G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, op. cit., 345-54.
141. For an overview of relevant provisions and further references, see for example UNHCR, "Advisory Opinion", op. cit.
142. See UNHCR, "Note on Extradition and International Refugee Protection", Apr. 2008, paras 21-3, with further references.
143. Pursuant to this provision, the term "refugee" shall apply to any person who, "... 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."
144. On the interpretation of article 1F(b) of the Refugee Convention, see UNHCR, "Background Note on Exclusion", op. cit., paras 37-45.
145. See also UNHCR, "Note on Extradition and International Refugee Protection", Apr. 2008, paxas 77-85.
146. UNHCR, "Background Note on Exclusion", op. cit., paras 41-3.
147. For example, a person may be extraditable, but the offence in question may not be serious enough to warrant exclusion from international refugee protection, or the evidentiary requirements under the applicable extradition treaty do not meet the "serious reasons for considering" threshold for the application of article 1F of the Refugee Convention, or the temporal or geographic criteria under article 1F(b) are not met. Conversely, exclusion may apply even if the person cannot be extradited, for example, because there is no extradition agreement, or because formal requirements under the requested State's extradition legislation are not met. For further discussion of the linkages between extradition and international refugee protection, see also S. Kapferer, The Interface between Extradition and Asylum, UNHCR, Legal and Protection Policy Research Series, PPLA/2003/05, Nov. 2003, paras 315-39.
148. The IRO Eligibility Manual, op. cit., provides numerous examples of cases in which the exclusion provisions of IRO Constitution were applied in practice.
149. On the non-binding character of the UDHR, see for example H. Lauterpacht, "The universal declaration of human rights", British Yearbook of International Law, 1948, 354.