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Office of the United Nations High Commissioner for Refugees: Elaboration of a draft Convention on Territorial Asylum Report of the Secretary-General

Publisher UN General Assembly
Publication Date 29 August 1975
Citation / Document Symbol A/10177
Reference Thirtieth session Item 80 of the provisional agenda
Cite as UN General Assembly, Office of the United Nations High Commissioner for Refugees: Elaboration of a draft Convention on Territorial Asylum Report of the Secretary-General, 29 August 1975, A/10177, available at: http://www.refworld.org/docid/3ae68befc.html [accessed 28 November 2014]

Thirtieth session Item 80 of the provisional agenda[1]

ANNEX
Report of the Group of Experts on the Draft Convention on Territorial Asylum

1.         At its twenty-ninth session, the General Assembly, in resolution 3272 (XXIX) on the elaboration of a draft Convention on Territorial Asylum, decided to establish a Group of Experts on the Draft Convention on Territorial Asylum, composed of representatives of not more than 27 States, designated by the President of the General Assembly after consultation with the different regional groups, on  the basis of equitable geographical distribution.

2.         The Group of Experts met at Geneva from 28 April 1975 to 9 May 1975 to review the present text of the draft Convention on Territorial Asylum. The report of the Group of Experts is annexed to the present document.

3.         In resolution 3272 (XXIX) the General Assembly also requested the Secretary General to submit a proposal as to when a conference of plenipotentiaries could be convened, together with an estimate of the costs involved.

4.         The Secretary-General wishes to inform the General Assembly that the Conference of Plenipotentiaries on Territorial Asylum could be convened at Geneva from 10 January 1977 to 4 February 1977, and that the costs involved for holding this Conference are estimated at $US 288,500.

INTRODUCTION

1.         The General Assembly, in paragraph 2 of resolution 3272 (XXIX) of 10 December 1974, decided to establish a Group of Experts on the Draft Convention on Territorial Asylum, composed of representatives of not more than 27 States, to be designated by the President of the General Assembly after consultation with the different regional groups, on the basis of equitable geographical distribution.

2.         In a communication dated 27 March 1975, the President of the General Assembly informed the Secretary-General that, following consultations with the chairmen of the regional groups, he had appointed the following States to be members of the Group of Experts: Argentina, Australia, Austria, Belgium, Brazil, Costa Rica, France, India, Indonesia, Iran, Iraq, Italy, Kenya, Mali, Mexico, Nigeria, Sri Lanka, Sudan, Sweden, Tunisia, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Yugoslavia and Zaire. [2]

3.         In paragraph 3 of resolution 3272 (XXIX), the General Assembly requested the Secretary- General, in consultation with the Office of the United Nations High Commissioner for Refugees, to convene the Group of Experts not later than May 1975 and for a maximum of 10 working days to review the present text of the draft Convention on Territorial Asylum. The Group of Experts met at the United Nations Office at Geneva from 28 April to 9 May 1975.

4.         The present report of the Group of Experts is submitted to the General Assembly in accordance with paragraph 5 of General Assembly resolution 3272 (XXIX).

CHAPTER I
ORGANIZATION OF WORK

5.         The session was opened on 28 April 1975 by the United Nations High Commissioner for Refugees on behalf of the Secretary-General. The High Commissioner extended his welcome to the members of the Group.

6.         Following the adoption of the provisional agenda (A/AC.174/CRP.2/Rev.1), the Group of Experts elected Mr. Erik Nettel (Austria), Chairman, Mr. Yakembe Yoko (Zaire), Vice-Chairman, and Mr. Geraldo, Eulalio do Nascimiento e Silva (Brazil), Rapporteur.

7.         After a statement by the United Nations High Commissioner for Refugees, the Chairman invited the views of members on the organization and method of work of the Group. It was agreed that, before proceeding to a first reading of the text of the draft Convention, those members of the Group wishing to make general statements on the draft Convention would be free to do so. Following the first reading, and in the light of the comments, views and proposals of the members, the Chairman suggested that the Group should proceed to a second reading with a view to formulating concrete conclusions or recommendations.

8.         After a procedural discussion, it was agreed that the Group would endeavour to reach its conclusions by consensus whenever possible. With respect to those provisions in regard to which a consensus could not be reached, it was agreed that the respective views would be reflected in the report, which would provide some indication of the support among the participants for a particular formulation or standpoint. It was stated that the views and decisions taken by the experts in the review of the draft Convention were without prejudice to the position that might finally be taken by their Governments.

CHAPTER II
GENERAL EXCHANGE OF VIEWS

9.         In the course of a brief general exchange of views, some experts questioned the need for a Convention on Territorial Asylum, since various aspects of the matter were already regulated in a number of existing multilateral and bilateral instruments. It was pointed out that the substance of several provisions of the draft Convention was to be found in provisions of the 1951 Convention relating to the Status of Refugees [3] and its 1967 Protocol, [4] the 1967 United Nations Declaration on Territorial Asylum, [5] the Statute of the Office of the United Nations High Commissioner for Refugees, [6] the Havana Convention on Asylum of 1928, [7] the Caracas Convention on Territorial Asylum of 1954, [8] the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, [9] the United Nations Covenant on Civil and Political Rights, [10] as well as several other regional and bilateral agreements. Finally, norms regulating asylum were to be found in the domestic legislation of many States. One expert also pointed out that the right of qualification provided for in article 9 involved the risk of making the application of the Convention wholly subjective. His Government believed that it was necessary to avoid a situation in which a Convention could not be effectively enforced which would bring international law into disrepute.

10.        Other experts, however, pointed out that the various instruments cited in paragraph 9 above did not all have the same legal value and took the view that there was a need to consolidate and develop the law on territorial asylum and that this could best be achieved by formulating certain basic principles in a single instrument. Some experts considered that the draft of such an instrument could, if necessary, be examined by a conference of plenipotentiaries, of which mention had been made in General Assembly resolution 3272 (XXIX).

CHAPTER III
REVIEW OF THE TEXT OF THE DRAFT CONVENTION ON TERRITORIAL ASYLUM

A.         Preamble

The Contracting States,

1.         Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom,

2.         Recalling that the General Assembly of the United Nations has solemnly declared that nations, irrespective of their political, economic, and social systems or the levels of their development, should base their co-operation, inter alia, on respect for fundamental human rights,

3.         Mindful of articles 13 and 14 of the Universal Declaration of Human Rights,

4.         Recalling the Declaration on Territorial Asylum adopted by the General Assembly of the United Nations on 14 December 1967, and recognizing the important advance made by this Declaration in formulating principles upon which States should base themselves in their practices relating to territorial asylum,

5.         Noting the present practice of States in granting asylum and the general acceptance of the principles of non-refoulement and the voluntary nature of repatriation, expressed in various instruments adopted on the universal and regional levels,

6.         Believing that the conclusion of a convention based on these principles will assist States to achieve those humanitarian objectives which are the common concern of the international community and will also thereby strengthen friendly relations between States,

7.         Have agreed upon the following articles:

11.        Subject to a small number of proposed modifications, it was felt that the present text of the Preamble was satisfactory.

12.        With regard to the last line of the first and second preambular paragraphs, it was suggested that the wording should adhere as closely as possible to the language of the Charter so as to read: …"observance of, human rights and fundamental freedoms".

13.        With respect to paragraph 3, it was proposed that the text should be reworded to emphasize the Universal Declaration of Human Rights as an instrument and in particular articles 13 and 14. It was further suggested that the paragraph could be reformulated to incorporate a reference to the International-Covenant on Civil and Political Rights and in particular articles 12 and 13.

14.        It was suggested by one expert that reference could also be made to other existing international instruments dealing with asylum and the status of refugees and stateless persons. Another expert considered that such a general reference to international instruments lacked precision. He further believed that a reference to instruments relating to stateless persons was inappropriate. Certain other experts, however, believed that the situation of stateless persons was also relevant in the context of asylum.

15.        Certain experts suggested that the Preamble should include a reference to the 1951 Convention relating to the Status of Refugees. Another expert, however, felt that it might be preferable not to include such a reference as this might discourage accession by States which were not parties to the 1951 Convention.

16.        A further suggestion concerned the desirability of including a preambular paragraph reflecting the substance of the idea contained in the written comments of the Government of Romania which would refer to the principles of international law embodied in the Charter of the United Nations.

17.        The wording of paragraph 5 did not give rise to any comments.

18.        A suggestion that the words "based on these principles" appearing in the first line of paragraph 6 be replaced by the words "on territorial asylum" was supported by certain experts, while one expert objected to the suggested change and expressed his general opposition to the substance of the paragraph.

19.        The Preamble was reconsidered during the second reading and the conclusions and views of the group were as follows:

Paragraphs 1 and 2

20.        In accordance with a suggestion made during the first reading, the experts agreed that the last lines of each of these paragraphs should adhere as closely as possible to the language of the United Nations Charter and refer to "human rights and fundamental freedoms". In regard to paragraph 2, one expert considered that it might be inappropriate to use the words "has solemnly declared". These words could be misleading to an ordinary reader, since the draft paragraph was not a quotation, but was taken from various instruments: the United Nations Charter, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations [11] and the United Nations Declaration on Territorial Asylum. The text of the draft paragraphs, as reworded, would read as follows:

1.         Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms,

2.         Recalling that the General Assembly of the United Nations has solemnly declared that nations, irrespective of their political, economic, and social systems or the levels of their development, should base their co-operation, inter alia, on respect for human rights and fundamental freedoms,

Paragraph 3

21.        In line with the discussions during the first reading, the group agreed that this paragraph should be reworded to emphasize the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as instruments. The text of the draft paragraph as reworded would read as follows:

Mindful of the Universal Declaration of Human Rights and in particular articles 13 and 14 of that Declaration and of the International Covenant on Civil and Political Rights and in particular articles 12 and 13 of that Covenant.

Paragraph 4

22.        The experts agreed that the present text of the draft paragraph was acceptable and did not call for any change.

Paragraph 5

23.        A majority of the experts considered that the present text of the draft paragraph was acceptable and did not call for any change.

24.        One expert expressed the view that, while the principle of voluntary repatriation was generally accepted, the acceptance of the principle of non-refoulement was a matter to be dealt with by the Convention, which the Preamble therefore appeared to prejudge.

Paragraph 6

25.        The majority of experts agreed that the paragraph could be accepted with the words "based on these principles" being replaced by words "on territorial asylum". Certain experts, however, expressed a preference for retaining the original wording. One expert maintained the objection to the substance of the paragraph which he had raised during the first reading.

Paragraph 7

26.        The experts agreed to this purely formal paragraph without discussion.

Proposals for the inclusion of additional paragraphs in the Preamble

A. 27.   A majority of the Group agreed that an additional paragraph be included after paragraph 3, the text of which could read as follows:

Conscious that asylum is a matter of concern to the international community.

B. 28.   The majority of the Group considered that a proposal by one expert to include in the Preamble a paragraph referring to other instruments dealing with asylum and the status of refugees and stateless persons was acceptable. Some experts, however, considered that the instruments referred to in the proposed new paragraph were very numerous and that their subject-matter had no direct relation to that of the Convention and were based on different principles. The text of the draft paragraph, to be inserted after paragraph 4, would read as follows:

Bearing in mind other instruments dealing with asylum and the status of refugees and of stateless persons.

C. 29.   A proposal made by one expert - to take account of a written comment by Romania - to include a paragraph affirming the principles of international law embodied in the Charter of the United Nations was acceptable to the majority of the Group. One expert, however, considered that such an additional paragraph was not necessary as its subject-matter was already covered by paragraph 1 of the Preamble. Another expert drew attention to a discrepancy between paragraph 1 and the proposed new paragraph in so far as the former mentioned the promotion of respect for and observance of human rights and fundamental freedoms, while the, latter did not mention this promotional aspect, but presupposed that the principles in question had already been accepted. The wording of the proposed additional paragraph - to figure as the penultimate paragraph of the Preamble would be as follows:

Affirming the principles of international law embodied in the Charter of the United Nations and in particular the principle of universal respect for and observance of human rights and fundamental freedoms for all.

B.        Article 1. Grant of asylum

1.         A Contracting State, acting in an international and humanitarian spirit, shall use its best endeavours to grant asylum in its territory, which for the purpose of the present article includes permission to remain in that territory, to any person who, owing to well-founded fear of:

(a)        Persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, or for reasons of struggle against apartheid or colonialism; or

(b)        Prosecution or severe punishment for acts arising out of any of the circumstances listed under (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.

2.         The provisions of paragraph 1 of this article shall not apply to:

(i)         Any person with respect to whom there are serious reasons for :considering that he is still liable to punishment for:

(a)        A crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)        A serious common crime; or

(c)        Acts contrary to the purposes and principles of the United Nations.

(ii)         Any person who seeks asylum for reasons of a purely economic character.

3.         Asylum shall not be refused by a Contracting State solely on the ground that it could be sought from another State.

30.        In the statements made by various experts, particular attention was devoted to the question of the intended scope and effect of the article. Certain experts considered that the present text did not represent a major departure from the situation under existing international instruments and referred in particular to the words "shall use their best endeavours", which did not have the effect of establishing asylum as a subjective right of the individual. Some experts questioned the value of adopting an instrument having this limited effect. The majority of experts, however, considered that, in the present state of international law, asylum was still a sovereign right of the State, and that this idea should find some expression in the Convention. A proposal was made to insert the words "acting in the exercise of its sovereignty" at the beginning of paragraph 1.

31.        The words "acting in an international and humanitarian spirit" figuring in the same paragraph were considered by certain experts to be too vague and general and a proposal was made for their deletion. One expert considered that a possible solution of the difficulty might be to replace these words and the opening words of the paragraph by the words "Subject to the provisions of this Convention, a Contracting State shall have the right to grant asylum…".

32.        As regards the words "shall use their best endeavours", certain experts believed that they were not sufficiently strong and one expert proposed their replacement by "shall adopt necessary measures". The majority of experts, however, considered that the words were acceptable and correctly reflected the principle that the granting of asylum was a sovereign right of the State.

33.        One expert suggested a reformulation of the text to reflect the idea that the Contracting States acting together should use their best endeavours to ensure that asylum was granted in the territory of one of them.

34.        The use of the words "which for the purposes of the present article includes permission to remain in that territory ..." was questioned by certain experts who considered that they should be omitted. It was explained, however, that these words, although not strictly necessary, had been included in order to distinguish asylum from non-refoulement, bearing in mind the fact that the Convention did not specifically define asylum.

35.        The inclusion of the words "reasons of struggle against apartheid or colonialism" (in subparagraph 1 (a)) was considered inappropriate by certain experts. Apart from the fact that apartheid and colonialism were hopefully not permanent institutions, the matter was already covered by the definition of persecution in the first part of paragraph 1 (a). Certain other experts, however, considered it important that the reference to "reasons of struggle against apartheid and colonialism" should remain. It was generally agreed that, if the reference were retained, it should be clarified that these grounds constituted persecution according to the first part of the definition.

36.        One expert proposed the inclusion of a reference to persecution for reasons of struggle for independence and freedom and for progressive ideas as an additional ground for the granting of asylum.

37.        In regard to subparagraph 1 (b) of article 1, the deletion of the word "severe" as qualifying punishment was suggested, since the word, owing to its imprecision, might lend itself to a restrictive interpretation. It was also felt that the relationship between subparagraphs (a) and (b) was not clear. Some experts considered that the subject-matter of subparagraph (b) was already covered by subparagraph (a) and that subparagraph (b) might therefore be omitted. One expert considered that subparagraph (b) could give rise to difficult questions of psychological motivation and that it might therefore be preferable for the two subparagraphs to be combined. One expert stated that, since paragraph 1 (b) related to political offences, the wording "persecution or punishment for offences of a political character" would be preferable.

38.        With regard to the exclusion grounds listed in paragraph 2 (i), several experts considered that the words "still liable to punishment" should be replaced by the words "has committed". The suggested wording was used in the 1951 Convention relating to the Status of Refugees and would take account of the understandable concern of States in this regard. Other experts, however, believed that the proposed wording would be too restrictive and might lead to the exclusion of persons who had already served their sentences and should not be further penalized.

39.        One expert considered that the list of criminal acts specified in paragraph 2 (i) (c) should include a reference to genocide and war propaganda and such other crimes against humanity as might be defined in the future by international instruments elaborated for the purpose.

40.        The notion of "serious common crime" mentioned in paragraph 2 (i) (b) was considered imprecise. It was liable to give rise to linguistic difficulties and its application might vary from State to State. In order to facilitate the implementation of the provision, it was suggested by several experts that the notion "serious common crime" should be given the meaning attributed to it under national law.

41.        The wording of paragraph 2 (ii) did not appear to give rise to any special difficulty provided that the distinction between refugees and economic migrants was always kept in mind.

42.        Certain experts believed that paragraph 3 as presently worded might create a burden for countries of first asylum, and believed that more detailed provisions should be elaborated. In the course of the discussion, the opinion was expressed that the provision would not prevent States - on the basis of bilateral or multilateral agreements – from requiring an asylum seeker to leave his territory and to seek asylum in another country.

43.        One expert submitted a proposal for the restructuring of the provisions of the article so that paragraph 1 would figure as a new article 1 and paragraph 2 as a new article 2 (the remaining articles of the Convention having to be renumbered). The new article 1 would differ from the present article 1, paragraph 1, in that it would state in general terms that the persons covered by subparagraphs (a) and (b) were entitled to the benefits of the Convention, and not, as in the present text, that asylum might be granted to such persons.

44.        When the article was examined at the second reading, a majority of the Group was of the opinion that the text referred to in the preceding paragraph should form a basis for its discussions. They considered, however, that since the Convention related primarily to the granting of asylum by States, it would be preferable for the proposed new draft provision, concerning the grant of asylum, to precede the draft provision relating to persons benefiting from the Convention. The text of the proposed new provision to replace paragraph 1 of article 1 was as follows:

Article 1. Grant of asylum

1.         The Contracting State, acting in an international and humanitarian spirit, shall use its best endeavours to grant asylum in its territory, which, for the purpose of this article, includes permission to remain in that territory, to any person entitled to the benefits of this Convention.

2.         Asylum shall not be refused by a Contracting State solely on the ground that it could be sought from another State.

45.        In regard to paragraph 1, the Group decided that the words "acting in the exercise of its sovereign rights" should be added after the words "The Contracting State". With respect to the words "acting in an international and humanitarian spirit", various experts repeated the view expressed during the first reading that they should be deleted because of their imprecision. Other experts considered that the words were not without meaning and were intended as an exhortation to States to act in a particular manner when exercising their sovereign right to grant asylum. After discussion, a majority of the Group decided that the words "in a humanitarian spirit" should be retained and inserted after the words "best endeavours".

46.        A majority of the Group considered that the words "which, for the purpose of this article, includes permission to remain in that territory," should be deleted.

47.        The proposal made during the first reading that the words "shall use their best endeavours" should be replaced by the words "shall adopt necessary measures" was not considered acceptable.

48.        A proposal that the paragraph should commence with the words "subject to the provisions of this Convention" was not considered acceptable on the ground that such words might modify the scope of the Convention and might be interpreted as limiting the sovereign right of States to grant asylum. The words "entitled to" were considered by certain experts as being possibly of a too peremptory character and there was general agreement that they be replaced by the words "eligible for".

49.        As regards paragraph 2, the question was again raised as to whether it would exclude the possibility of refusing asylum to persons who had already established a certain connexion with another country. Certain experts also believed that the paragraph might place too heavy a burden on countries of first asylum - and that it should be deleted. Other experts were of the opinion that it should be retained as it might help to avoid the situation in which an asylum seeker was simply told to "go else where ". After some discussion, a majority of the Group considered that the paragraph should be deleted. The article as reworded in the light of the discussions of the experts would read as follows:

"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". [12]

50.        As regards paragraph 2 of article 1, the Group considered that it should be replaced - as a basis of discussion - by the text referred to in paragraph 43 above, which reads as follows:

Article 2. Persons benefiting

1.         A person shall be entitled to the benefits of this Convention if he, owing to a well-founded fear of:

(a)        Persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion; or

(b)        Prosecution or severe 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.

2.         The provisions of paragraph 1 of this article shall not apply to any person with respect to whom there are serious reasons for considering that he is still liable to punishment for:

(a)        A crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes; or

(b)        A serious non-political crime; or

(c)        Acts contrary to the purposes and principles of the United Nations.

Paragraph 1

51.        The experts agreed that the words "entitled to" in the first line be replaced by the words "eligible for". One expert welcomed the approach in article 2, which in its general formulation placed the emphasis on the person seeking asylum.

52.        Certain experts considered that the words "or political opinion" in subparagraph (a) should be supplemented by the inclusion of the words "and also for the defence of the interests of the labourers, scientific activity and the national liberation struggle". Such an inclusion would give clear expression to the idea that only persons fighting for progressive ideas would be eligible for the benefits of the Convention. The majority of the experts, however, considered that the proposed words were already covered by the wider concept of "political opinion". A suggestion that the words "political opinion" should be qualified by the words "which is not contrary to the purposes and principles of the United Nations" was not felt to be appropriate by the majority of experts.

53.        Some discussion took place regarding a proposal to include a reference to "the struggle against colonialism and apartheid". Some experts repeated the view expressed during the first reading that this matter was already covered by the general definition of persecution in the subparagraph, but most of the experts considered that the words in question should be included after the words "political opinion".

54.        In regard to subparagraph (b), most of the experts considered that the word "severely as qualifying punishment should be deleted on the ground that it might result in too restrictive an interpretation of the word punishment.

55.        Some experts considered that the subparagraph as a whole should be deleted as its subject-matter was already covered by subparagraph (a). Reference was made to the practice of States in applying the definition of the term "refugee" in the 1951 Convention to include persons who feared prosecution or severe punishment for the reasons indicated. Other experts, however, considered that this interpretation of the 1951 Convention was not a general one and that subparagraph (b) would fill a lacuna. A majority of the Group considered that the subparagraph should be retained.

56.        A proposal that the words "for acts directly related to the persecution set forth in (a)" be replaced by the words "for offences of a political character" did not secure the approval of the majority of the experts.

Paragraph 2

57.        A proposal to replace the words "shall not apply to" by the words "may not be invoked by" was not considered acceptable. In regard to this proposal, certain experts considered that the words "may not be invoked by" were preferable in that they placed more emphasis on the right of the individual and at the same time on the sovereign right of the State to grant asylum to other categories of persons than those enumerated. Other experts, however, felt that the Convention should clearly indicate the categories of persons who were excluded from-its scope.

58.        A majority of experts was in favour of replacing the words "that he is still liable to punishment for" by the words "that he has committed" on the ground that this was in line with the wording in the corresponding provision of the 1951 Convention.

59.        One expert suggested the addition after the words "crime against humanity" in subparagraph (a) of the words "including genocide, war propaganda and other international crimes as defined or to be defined in international instruments drawn up or to be drawn up". This suggestion was not, however, considered acceptable by the majority of experts.

60.        There was general agreement among the group that the words "serious non-political crime" in subparagraph (b) should be replaced by the words "a serious common offence under the laws and regulations of the State granting asylum". The word "offence" was introduced mainly to secure conformity with the French word "infraction", which was considered to be more appropriate to cover all offences of a serious character. The words "under the laws and regulations of the Contracting States" were included so as to avoid possible difficulties of implementation. One expert expressed 'the opinion that the Universal Declaration of Human Rights was included among the "purposes and principles of the United Nations" referred to in this article, a view which received the agreement of several other experts.

61.        With regard to the title of the article, certain experts felt that the words "persons benefiting" were inappropriate in an article which also defined the persons who were ' excluded from the application of the Convention. For this reason, the word "application" was considered more appropriate as a title.

62.        The article as reworded in the light of the discussion of the experts would read as follows:

Article 2. Application

1.         A person shall be eligible for the benefits of this Convention if he, owing to a 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.

2.         The provisions of paragraph 1 of this article shall not apply to any person with respect to whom there are serious reasons for considering that he has committed:

(a)        A crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes; or

(b)        A serious common offence under the laws and regulations of the Contracting State granting asylum;

(c)        Acts contrary to the purposes and principles of the United Nations.

C.        Article 2. 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.

63.        It was generally recognized that this provision was the most important provision of the entire draft Convention, but some doubts were expressed as regards its scope and its relation to certain other articles.

64.        The view was expressed by several experts that the link between articles 1 and 2 should be clearly established as this would ensure that the benefits of the article would only be available to persons qualifying for asylum under paragraph 1 of article 1 who were not excluded under paragraph 2 of that article. It was considered by one expert, however, that a reference to article 1 had no relevance to persons presenting themselves at the frontier as the question whether they qualified under article 1 could only be determined by an examination. In so far as such persons were concerned, a general wording such as "no person" or "no person seeking asylum" was more correct. It was suggested by another expert that the words "no person" at the beginning of the article be replaced by the Words "no person seeking or claiming asylum". An alternative proposal was to replace the words "no person" by the words "no person entitled to the benefits of the present Convention".

65.        It was proposed by one expert that the principle of non-refoulement as expressed in the article should only apply to persons in the territory of a Contracting State. In regard to rejection at the frontier, he considered that the principle of non-refoulement should not be expressed in absolute terms, but that the words "use their best endeavours" should be employed. One reason given for this view was that the present wording of the article might enable persons to remain in the territory of a Contracting State for an unduly long period under the procedures provided for in article 4. A formal proposal was submitted for a rewording of the article in the following terms:

No person entitled to the benefits of this Convention who is in the territory of a Contracting State shall be subjected by such Contracting State to measures such as return or expulsion, which would compel him to return directly or indirectly to a territory with respect to which he has well-founded fear of persecution, prosecution or punishment for any of the reasons cited in article 1. Moreover, a Contracting State shall use its best endeavours to ensure that no person is rejected at its frontiers if there are well-founded reasons for believing that such rejection would subject him to persecution, prosecution or punishment for any of the reasons stated in article 1.

66.        Other experts, however, pointed out that the proposed new wording might lead to inequitable results, since the question whether or not a person was entitle d to claim the benefit of the principle of non-refoulement would depend upon whether or not he had succeeded in penetrating a States territory. They also considered that in view of its fundamental importance, the principle of non-refoulement should be expressed in sufficiently wide terms as to cover persons seeking asylum within or at the borders of a Contracting State.

67.        One expert pointed out that, while "rejection at the frontier" was not specifically mentioned in article 33 of the 1951 Convention, the remaining provisions of articles 31, 32 and 33 of that Convention were more comprehensive. It would, therefore, be desirable for the present article to be reformulated order to include the various matters dealt with in those provisions. He considered that the article should thus be strengthened so as to complement the relevant provisions of the 1951 Convention rather than detract or derogate from them. He also made a formal proposal for the inclusion of a provision corresponding to article 32, paragraph 1, of the 1951 Convention that asylees should not be expelled save on grounds of national security and public order.

68.        He further proposed that the words "with respect to which he has well-founded fear of persecution" should be replaced by the words "where his life or freedom is in danger of being violated". These words were more in line with those of article 33 of the 1951 Convention. They placed emphasis on the need to have regard to objective criteria when applying the principle of non-refoulement and would guarantee the application of this principle in cases where the asylee might be in danger in his country of origin through possible incursions by the authorities of another State.

69.        Several experts believed that the wording "directly or indirectly"' would give rise to difficulties of implementation, since the indirect consequences of a measure of expulsion or return could not always be foreseen.

70.        In the course of the discussion, the view was expressed that it might be more logical for the question of provisional admission (art. 4) to be dealt with before the question of non-refoulement (art. 2) and a rearrangement of the relevant provisions might therefore be desirable.

71.        When this article was considered at the second reading, the proposal referred to in paragraph 67 that the article should contain a provision in line with article 32, paragraph 1, of the 1951 Convention was withdrawn.

72.        A majority of the Group considered that the text referred to in paragraph 65 could be adopted as a basis for its discussions.

73.        It was generally agreed that the words "directly or indirectly" figuring in the first sentence of the draft text should be deleted.

74.        A majority of the experts agreed with a proposal to replace the words "a territory with respect to which he has well-founded fear of persecution" figuring in the first sentence by the words "a territory where his life or freedom would be threatened".

75.        In regard to the second sentence of the text, a majority of the experts considered that a proposal for its deletion was not acceptable. They also considered unacceptable a proposal to replace the words "shall use its best endeavours to ensure" by the words "shall ensure".

76.        The majority of the experts were in agreement that the article should be supplemented by a second paragraph corresponding to article 33, paragraph 2, of the 1951 Convention and by a third paragraph reproducing the terms of article 3, paragraph 3, of the Declaration on Territorial Asylum. The Secretariat was entrusted with the task of adapting the wording of the proposed third paragraph in such a manner as to bring it into conformity with the proposed second paragraph of the article.

77.        The article as reworded in the light of the discussions of the experts would read as follows:

1.         No person entitled to the benefits of this Convention who is in the territory of a Contracting State shall be subjected by such Contracting State to measures such as return or expulsion which would compel him to return to a territory where his life or freedom would be threatened. Moreover, a Contracting State shall use its best endeavours to ensure that no person is rejected at its frontiers if there are well-founded reasons for believing that such rejection would subject him to persecution, prosecution or punishment for any of the reasons stated in article 1.

2.         The benefit of the present provision, however, may not be claimed by a person whom there are reasons 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 in that country.

3.         Where a Contracting State decides that an exception should be made on the basis of the preceding paragraph, it shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity of going to another State.

D.        Article 3. Non-extradition

No person shall be extradited to a State to the territory of which he may not be returned by virtue of article 2.

78.        The discussion on this article involved an exchange of views on various general problems affecting extradition in relation to asylum and non-refoulement. One expert believed that the article might not be necessary, since the matter was already covered by the principle of non-refoulement, and he pointed out that article 33 of the 1951 Convention used the words "in any manner whatsoever", which could be construed as covering extradition. Another expert inquired whether it might not be possible to include a reference to extradition in article 2 of the draft Convention. It was pointed out, however, that doubts had been expressed regarding the applicability of article 33 of the 1951 Convention to extradition, which seemed to indicate that an article like the present one was necessary.

79.        One expert, while recognizing the clear necessity for the article, believed that the mere reference to article 2 of the Convention was not appropriate and that the circumstances in which an asylee could not be extradited should be clearly spelt out and, in this connexion, he referred to article 4 of the Caracas Convention on Territorial Asylum.

80.        It was generally recognized that the article might give rise to difficulty from the standpoint of existing extradition treaties and in particular treaties of a bilateral character. Some experts believed that this matter should be dealt with by the introduction of a special provision in the article or elsewhere in the Convention to provide for the resolution of a possible conflict of treaty obligations. Others felt that this question could be left open as the relationship between different treaties had already been regulated in very great detail in article 30 of the Vienna Convention on the Law of Treaties,[13] which, although not yet in force, reflected the existing position under international customary law.

81.        When the article was examined at the second reading, a majority of experts considered that it should be deleted.

E.         Article 4. Provisional stay pending consideration of request

A person requesting the benefits of this Convention at the frontiers or in the territory of a Contracting State shall be admitted to or permitted to remain in the territory of that State pending a determination of his request, which shall be considered by a specially competent authority and shall, if necessary, be reviewed by higher authority.

82.        It was suggested by one expert that the wording of the article be amended to read as follows: "a person in the territory of a Contracting State requesting the benefits of this Convention shall be permitted to remain in the territory of that State…".

83.        Several other experts, however, believed that this formulation was too restrictive and that the procedure mentioned in the article should also apply to persons requesting the benefits of the Convention at the frontiers of a Contracting State. One expert suggested that it might be possible to avoid some of the difficulties that might result from the application of the article by including a provision that the procedure need not be initiated if the request were manifestly unfounded.

84.        One expert mentioned article 3 of the Declaration on Territorial Asylum, which covered the same question but adopted a somewhat different approach. The provisions in the two instruments should be drafted in such a manner as not to give rise to any conflict of interpretation. He further mentioned article 9 of the 1951 Refugee Convention, which permitted Contracting States, in time of war or other grave and exceptional circumstances, to take, provisionally, measures considered essential to national security. This provision reflected a legitimate interest of States, which should also be taken into account in the present Convention. The article would also give rise to various practical difficulties, for example, where a person was refused asylum, and the question arose as to the country to which he should be removed.

85.        In regard to the procedure referred to in the article, it was pointed out that national legislation did not always give a right of review, and it was suggested that the article should be prefaced with the introductory words "subject to national laws and regulations" so as to take account of the special features that might exist under various national procedures.

86.        The requirement of a review "by a higher authority" was considered inappropriate by some experts, and a suggestion was made to replace this reference by a provision that the determination "shall if necessary be subject to review". It was also suggested that the words "if necessary" could usefully be deleted, as could the word TV specially" used to define the competent authority required to make the determination.

87.        One expert proposed that the procedure referred to in the article should be made subject to the various guarantees provided for in article 32 of the 1951 Convention.

88.        One expert raised the question of persons who did not seek asylum in a particular country, but sought admission to that country in order to proceed to a third State. Some experts believed that, in such a case, since the person would not be requesting asylum in a Contracting State, the Convention would not apply. Other experts believed that there would be an implied obligation to facilitate his movement to his country of ultimate destination. One expert made a specific proposal to add the words "that person shall equally have access to a territory of a Contracting State in order to proceed to another State where he wishes to seek asylum". During the discussion on this proposal, one expert pointed out that such a provision would impose wider obligations on a Contracting State, since it would oblige that State to admit persons who, in relation to it, were not refugees.

89.        It was also suggested that the words "a person requesting the benefits of this Convention" be replaced by the words "a person seeking asylum", and one expert recalled the proposal made by his country in its written observations (A/AC.174/CRP.1, p. 21) that such persons should not be subjected to punishment for irregular entry and that the article should contain a specific provision to this effect. One expert proposed that the word "provisionally" be inserted after the word "admitted" so as to bring the text of the article into line with the heading, which referred to "provisional stay".

90.        At the second reading, the Group considered the proposal referred to in paragraph 82 above involving the deletion of the words "at the frontier or" and the words "admitted to or". The purpose of this proposal - as explained in the course of the discussions - was to bring the article into conformity with the revised and renumbered article 3 (non-refoulement) requiring the Contracting States to "use their best endeavours" to ensure that no person is rejected at the frontier. The proposal, however, did not secure the approval of a majority of the experts. A subsequent proposal to reformulate the article so as to provide that the Contracting States should "use their best endeavours" to admit an asylum seeker provisionally was similarly not found acceptable.

91.        A majority of the experts agreed that the words "a person requesting the benefits of this Convention" be replaced by the words "a person seeking asylum".

92.        The second part of the article dealing with the procedure to be applied in the case of persons admitted to or permitted to remain in the territory of a Contracting State was the subject of various proposals for amendment. A majority of the experts considered that the word "specially" and the words "and shall if necessary be reviewed by a higher authority" should be deleted, since questions relating to procedure are governed by the laws and regulations of the State granting asylum.

93.        A proposal was made to introduce, at the beginning of the article, the words it unless his application is manifestly unfounded". In the course of the discussion, it was pointed out that these words were inconsistent with the basic idea of the article that the applicant should be at least provisionally admitted in order to determine whether his application was well-founded or not. The proposal, however, was not found to be acceptable.

94.        A proposal was also made for the inclusion of a provision whereby Contracting States should admit persons not wishing to remain in their territory but to proceed to another country in order to request asylum there. According to the proposed draft provision, "the person concerned" shall equally have access to the territory of a Contracting State in order to proceed to another State where he wishes to seek asylum. This proposal however, did not, receive the approval of a majority of the experts.

95.        There was general agreement among the Group that the word "provisionally" should be included after the word "admitted" thereby bringing the text of the article into conformity with its title.

96.        The article as reworded in the light of the discussions of the experts would read as follows:

Article 4. Provisional stay pending consideration of request

A person seeking asylum at the frontier or in the territory of a Contracting State shall be admitted provisionally to or permitted to remain in the territory of that State pending a determination of his request, which shall be considered by a competent authority.

F.         Article 5. International solidarity

Where, in the case of a sudden or mass influx, or for other compelling reasons, a State experiences difficulties in granting or continuing to grant the benefits of this Convention, other Contracting States, in a spirit of international solidarity, shall take appropriate measures individually, jointly, or through the United Nations or other international bodies, to share equitably the burden of that State.

97.        Most of the experts recognized the importance of an article of this type, aimed at sharing the burden between asylum countries. One expert considered that the formulation of the article was unclear and that the action required to be taken on the basis of international solidarity could not be precisely or adequately determined. Some experts also questioned the mandatory character of the article, which might make it difficult for them to accept it in its present form. One proposal made in this connexion was to replace the words "take appropriate measures" by the words "take such measures as it considers appropriate". Another proposal was to replace the words "take appropriate measures" by the words "consider appropriate measures". These proposals were based on the idea that when a situation requiring the exercise of international solidarity arose the resulting problems were essentially of a character to be settled by negotiation between interested States.

98.        An opposite view was expressed by certain experts representing countries of first asylum, who considered either that the proposed amendments would unduly weaken the article or that the article - even in its present form - was not sufficiently far-reaching. One of these experts also considered that the draft Convention as a whole, as it now stood, would impose a heavy burden on first asylum countries. These countries were obliged to accept indiscriminately all persons seeking asylum in their territory; to grant asylum to persons who, although qualifying under article 1, paragraph 1, did not express any wish to remain in their territory, but desired to proceed to a third country; and finally to permit persons who would be excluded by virtue of article 1, paragraph 2, to remain in their territory according to the principle of non-refoulement. He expressed the hope that in future work connected with the draft Convention, the special problems of first asylum countries would be taken fully into account.

99.        Some experts considered that the action to be taken within the framework of international solidarity should be co-ordination by a competent United Nations agency. One expert submitted a proposal whereby, in the circumstances described in the article, the responsibility for co-ordinating action on the basis of international solidarity would be entrusted to UNHCR (or any other body created for the purpose). According to this proposal, the draft article would read as follows:

Where, in the case of a sudden or mass influx, or for other compelling reasons, a State experiences difficulties in granting or continuing to grant the benefits of this Convention, UNHCR (or any other body created for the purpose) at the request or with the approval of that State, shall take appropriate measures in consultation with other Contracting States for the equitable sharing of the burden by other States whether or not they are parties to this Convention.

Various experts expressed doubts as to this proposal, which could be construed as imposing an obligation on States to accept the co-ordinating activities of UNHCR in any given refugee situation. Moreover, to impose a primary responsibility for such co-ordinating action on UNHCR might exclude the necessary flexibility and the possible recourse to bilateral solutions or to the co-ordinating action of other international organizations or bodies. In order to take account of these various considerations, the following alternative text was proposed by another expert in the course of the discussion, which read as follows:

Whenever a Contracting State experiences difficulties in the case of a sudden or mass influx, or for other compelling reasons, in granting or continuing to grant the benefits of the Convention, other Contracting States shall, at the request of that State through the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, or by any other means considered suitable, take appropriate measures, jointly or individually, to share equitably the burden of that State.

100.      When the article was considered at the second reading, the Group agreed that the alternative text quoted in the preceding paragraph should be adopted as a basis for its discussions.

101.      A majority of the experts agreed to a proposal that the words "shall take appropriate measures" be replaced by the words "shall take such measures as it deems appropriate". A majority also considered that the words "other Contracting States" should be replaced by the words "each Contracting State". In view of this modification, it was further proposed that the word "jointly" be replaced by the words "in conjunction with other States". This proposal also received the approval of a majority of the Group. The article as reworded in the light of the discussions of the experts would read as follows:

Whenever a Contracting State experiences difficulties in the case of a sudden or mass influx, or for other compelling reasons, in granting, or continuing to grant, the benefits of this Convention, each Contracting State shall, at the request of that State, through the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, or by any other means considered suitable, take such measures as it deems appropriate, in conjunction with other States or individually, to share equitably the burden of that State.

G.        Article 6. Voluntary repatriation

If any asylee should voluntarily and in full freedom express his desire to return to the territory of the State of his nationality or former habitual residence, the State granting asylum and the State of the asylee's nationality or former habitual residence, as well as all other States concerned, shall facilitate his repatriation.

102.      Most of the experts agreed that the article would serve a useful purpose in the draft Convention, but raised certain questions regarding its meaning and scope. Certain experts believed that the requirement that States "facilitate the repatriation" of an asylee were too far-reaching and that the article should merely require States "not to put obstacles in the way of an asylee's repatriation", since the main purpose of the article was that the asylee's free will should be respected.

103.      One expert pointed out that the asylee's country of origin might not wish to re-admit him and another expert suggested that it might be appropriate to provide that repatriation should only take place if the conditions leading to the person's having become an asylee no longer existed.

104.      Certain problems arose regarding the States which were to be obligated by the provisions of the article, which could be construed as referring to States which were not parties to the Convention. Some experts therefore believed that it was preferable to refer in the article exclusively to "Contracting States", while other experts believed that a wider enumeration of States would be appropriate.

105.      As regards the wording of the article, it was suggested that the words "voluntarily and in full freedom" could be replaced by the words "of his own free will".

106.      When the article was considered at the second reading, a formal suggestion was made to include an additional paragraph providing that:

"Voluntary repatriation may only take place in cases where the conditions or reasons which have caused the persons to seek asylum have been removed".

107.      In regard to this suggestion, one expert considered that the proposed additional paragraph would be in contradiction to article 13 of the Universal Declaration of Human Rights relating to freedom of movement. Another expert was of the opinion that the paragraph might limit the freedom of the individual and give the possibility to a State to force another State to keep indefinitely an asylee who was on its territory.

108.      By way of explanation, the expert who had made the proposal stated that there was no incompatability between article 13 of the Universal Declaration of Human Rights and the proposed additional paragraph, the purpose of which had only been to provide a further guarantee for asylees whose life or freedom might still be threatened in their country of origin. A majority of the experts did not, however, consider that an additional paragraph on the lines suggested should be included in the article.

109.      There was agreement to the proposal made during the first reading that the words "voluntarily and in full freedom" be replaced by the words "of his own free will". The Group also agreed to a proposal that the words after "former habitual residence" be replaced by the words "neither the Contracting State granting asylum, nor any other Contracting State, shall place any obstacles in the way of his repatriation".

110.      The text of the article, reworded in the light of the discussions of the experts, would read as follows:

If an asylee should, of his own free will, express his desire to return to the territory of the State of his nationality or former habitual residence, neither the Contracting State granting asylum nor any other Contracting State shall place any obstacles in the way of his repatriation.

H.        Article 7. Co-operation with the United Nations

The Contracting States shall co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may be created for the purpose, as regards the application of the provisions of this Convention. They shall in particular keep the Office, or agency, informed of all general implementing measures adopted by them and shall consult with the Office, or agency, regarding questions arising out of applications for asylum.

111.      The majority of experts believed that the article reflected the general willingness of Governments to co-operate with the Office of UNHCR and to consult with this Office on matters pertaining to refugees and asylum. On the other hand, various questions were raised concerning the nature and scope of the co-operation with UNHCR foreseen in the article. Several experts believed that it would be inappropriate in an instrument of this kind to impose an obligation to consult with UNHCR or any other international agency. This difficulty could perhaps be overcome by replacing the words "shall consult" by the words "'may consult". One expert considered that the present wording could also require a State to consult with UNHCR on individual asylum applications. To overcome this and related difficulties, various experts considered that the words "shall consult ..." might be replaced by words to the effect that Governments should, in appropriate cases, consult with the Office of UNHCR on questions arising out of interpretation of the Convention.

112.      One expert believed that the article was superfluous and could be deleted, since its substance was already contained in article 35 of the 1951 Convention relating to the Status of Refugees and article II of the 1967 Protocol thereto, and a problem of the correlation of treaty obligations could also arise if the article were maintained. One expert proposed the inclusion of a provision whereby asylees should be given the right of addressing themselves to the Office of UNHCR. No general agreement, however, was reached in regard to this proposal.

113.      When the article was examined at the second reading, a proposal was made to delete the second sentence. This proposal received the approval of a majority of the experts.

114.      One expert put forward a proposal, in line with a proposal made by him during the first reading, that persons seeking asylum be permitted, if they so desire, to make contact with the Office of the United Nations High Commissioner for Refugees. While some experts believed that such a provision was unnecessary as it reflected an already existing situation, the proposal received the agreement of a majority of the Group.

115.      Replying to a question of one expert as to whether contact between an asylum seeker and the Office of UNHCR should be direct or through the intermediary of the Government, the expert who made the proposal explained that such contact could either be through the Government or direct according to the choice of the asylee.

116.      The text of the article, reworded in the light of the discussions of the experts would read as follows:

The Contracting States shall co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may be created for the purpose, as regards the application of the provisions of this Convention. The Contracting States shall permit persons seeking asylum, if they so desire, to make contact with the Office of the United Nations High Commissioner for Refugees.

I.          Article 8. Peaceful character of asylum

The grant of asylum in accordance with article 1, or the application of other articles of this Convention, is a peaceful and humanitarian act. As such, it does not constitute an act unfriendly to any other State and shall be respected by all States.

117.      Part of the discussion centred on whether this article should figure in the operative part of the Convention or in the Preamble. One expert believed that, as presently worded, the article had no normative character, while others considered that this characterization only applied to the first part of the article, which stated that "The granting of asylum is a peaceful and humanitarian act". Another expert took the view that this part of the article could be embodied in a normative provision as had been done in the OAU Convention governing the Specific Aspects of Refugee Problems in Africa and in the Caracas Convention on Territorial Asylum, which provided that the granting of asylum "should not give rise to complaint by any other State".

118.      The majority of the experts agreed that the second sentence of the article, which provided that asylum should be respected by other States, could clearly form the subject of an operative provision in the Convention and was indeed an expression of the rule of international customary law that the granting of asylum was an act of State sovereignty. Some experts, however, believed that to require States to respect asylum granted in accordance with article 1 of the Convention might give rise to the a contrario argument that asylum granted otherwise than in accordance with article 1 might be considered contrary to the Convention. This applied particularly in cases where a person fell within the exclusion provisions in paragraph 2 of article 1 - e.g. for having committed a serious common crime - but who might nevertheless be granted asylum because the political element of his case predominated. In order to overcome this difficulty it was suggested that it might be possible to delete the reference to article 1 or, alternatively, to replace the present introductory sentence of paragraph 2 of article 1 by the words "the provisions of paragraph 1 of this article may not be invoked by". Another expert, however, indicated that he was entirely satisfied with the present wording and believed that the a contrario argument did not have any great force since the granting of asylum, otherwise than in accordance with article 1, fell outside the entire framework of the Convention.

119.      When the article was considered at the second reading, the question was again discussed as to whether the characterization of asylum as a "peaceful and humanitarian act" could be the subject of a provision in the operative part of the Convention or should figure in the Preamble. The majority of experts considered that the article should remain in the operative part of the Convention and a proposal to delete the reference to the "peaceful and humanitarian character" of asylum from the article was not accepted.

120.      The experts did not accept a proposal that the text of the whole article be replaced by the words "the grant of territorial asylum in accordance with this Convention shall be respected by all States".

121.      The Group agreed with a proposal by one expert that the words "as such it does not constitute an act unfriendly to any other State" be replaced by the words "it shall not be regarded as an act unfriendly to any other State". It was also agreed that the word "territorial" be inserted before the word "asylum".

122.      The text of the new article, reworded in the light of the discussions of the experts, would read as follows:

The grant of territorial asylum in accordance with article 1, or the application of other articles of this Convention, is a peaceful and humanitarian act. It shall not be regarded as an act unfriendly to any other State and shall be respected by all States.

J.         Article 9. Right of qualification

Qualification of the grounds for granting asylum or applying the provisions of articles 2 or 3, appertains to the Contracting State whose territory the person concerned has entered or seeks to enter.

123.      The majority of experts considered that an article providing for the right of unilateral qualification was necessary. Such an article was in line with the principle that the granting of asylum was an exercise of State sovereignty, and would also avoid difficulties of interpretation. One expert, however, believed that the article had very little meaning because the right of qualification appertained to the Contracting State in any event and added that the article was only a paraphrase of article 1, paragraph 3, of the Declaration on Territorial Asylum. In his view, the article was too succinct and if it were to be retained it should be made more specific so as to deal not only with the right of the State to qualify, but also to the objective criteria to be applied by States in granting asylum. The matters dealt with were of a very complex nature requiring much more detailed regulation and the expert mentioned by way of example the very comprehensive provisions of the European Convention on Extradition of 1957. [14]

124.      Some experts considered that the article was acceptable in its present form, while others felt that the article should not confine itself to providing for a right of qualification in respect of articles 2 or 3 of the Convention. The right of qualification could also be applied in respect of articles 1 and 4 and possibly also to paragraph 1 of article 10. One expert suggested that it should be applied to "all the provisions of the present Convention". Other experts, however, believed that the right of qualification should apply only to the granting of asylum, the principle of non-refoulement and the refusal of extradition (articles 1, 2 and 3) and that to extend it to other provisions of the Convention would deprive the latter of its content. One expert proposed the addition of the words "in order to seek asylum" at the end of the draft article.

125.      When the article was considered at the second reading, the experts who participated in the discussion expressed views similar to those expressed during the first reading. They agreed to a proposal that the words "of articles 2 or 3" be replaced by the words "of this Convention". One expert pointed out that the last-mentioned words would have the advantage of covering all possible cases and that a reference to articles 2 and 3 would have a limiting effect and that questions of qualification were also involved in other articles of the draft Convention (e.g. articles 1 and 4). It was, of course, obvious that article 9 would only be applicable when a question of qualification arose. The proposal made by one expert during the first reading that the final words of the article should read "has entered or seeks to enter in order to seek asylum" was accepted with a modification to read "has entered or seeks to enter and seeks asylum".

126.      The text of the new article, reworded in the light of the discussions of the experts, would read as follows:

Qualification of the grounds for granting asylum or applying the provisions of this Convention appertains to the Contracting State whose territory the person concerned has entered or seeks to enter and seeks asylum.

K.        Article 10. Régime of asylees

1.         States granting asylum shall not permit asylees to engage in activities contrary to the purposes and principles of the United Nations.

2.         Without prejudice to the provisions of regional conventions, a State incurs international responsibility for the actions of asylees to the same extent that it would be responsible for the actions of any other person living in its territory.

127.      Certain experts stated that paragraph 1 of the article would give rise to constitutional difficulties in so far as the legislation of their respective countries contained far-reaching provisions concerning freedom of speech and freedom of the press. These difficulties could perhaps be overcome by adding the words "to the extent to which the law permits". Other experts considered that the wording of the paragraph was too imprecise and/or too wide and might leave open the possibility for States to restrict the human rights of refugees. The paragraph was also incomplete in that it stated what refugees should not do, but did not define their rights in a positive manner. One expert referred to the Caracas Convention on Territorial Asylum, which contained detailed provisions guaranteeing that refugees should be treated on the same footing as nationals. Another expert pointed out that the paragraph was almost identical with article 4 of the Declaration on Territorial Asylum.

128.      In regard to paragraph 2, one expert considered that this paragraph purported to lay down a principle of State responsibility, which was a matter now being considered by the International Law Commission, and felt that a reference to State responsibility in the present article was imprecise, since the rules of State responsibility had themselves not yet been established. Other experts shared the view that the paragraph was unsatisfactory because its content was not clear. The view was expressed by one expert that the paragraph and the previous paragraph had no place in a Convention, the purpose of which was to provide for the grant of asylum and not to define the status - including the duties - of asylees, a matter falling within the scope of the 1951 Convention. The view that the paragraph had no place in the Convention was also shared by other experts. One expert repeated the proposal made by his Government in the written observations (A/AC-174/CRP.1, p. 28) that the paragraph should be replaced by a new paragraph providing that every person to whom asylum had been granted should conform to the laws of the asylum-granting country and should refrain from all activities which were detrimental to the institutions and security of that country.

129.      One expert proposed the inclusion of a paragraph according to which, for the purposes of the article, the activities of freedom fighters, struggling to free their countries from the clutches of colonialism and racist minority regimes, should not be considered contrary to the purposes and principles of the United Nations. In the discussion on this proposal, various experts expressed doubts as to its possible implications from the standpoint of the acts which asylees might be authorized to carry out in the territory of Contracting States and the conformity of such acts with national laws and regulations. One expert pointed out that this proposal once again illustrated the inappropriateness of including in the Convention a provision defining the rights and duties of asylees.

130.      It was also suggested that, if the article were to be retained, a reference should be made to "Contracting States" and to "a Contracting State" in paragraphs 1 and 2, respectively.

131.      When the article was examined at the second - reading, a short discussion was held, during which views similar to those expressed during the first reading were expressed by some of the experts. There was general agreement that the article should be deleted.

L.         Article 11. Good faith

All determinations and decisions called for in the application of this Convention shall be made in good faith and with due regard to all ascertainable facts.

132.      The experts who took part in the discussion either considered that this article should be deleted or stated that they had no objection to its deletion. It was pointed out that the principle of good faith expressed in the article was considered to be a recognized principle of general international law, which had found expression in article 26 of the Vienna Convention on the Law of Treaties.

133.      When the article was considered at the second reading, there was general agreement that it should be deleted.

CHAPTER IV
CONSIDERATION OF ADDITIONAL DRAFT ARTICLES

134.      During the examination of the draft Convention, certain experts proposed the inclusion of additional articles.

135.      The Group examined a proposal for the inclusion in the Convention of a new draft article to be worded as follows:

"1. Nothing in this Convention shall prevent a Contracting, State from granting asylum to persons referred to in article 2, paragraph 1, under conditions more favourable than those laid down in this Convention."

136.      The Group also examined a second proposal for the inclusion of a new draft article which, subject to certain amendments made during the second reading, was to be worded as follows:

"Nothing in this Convention shall prevent a Contracting State from granting to persons referred to in article 2 a more favourable treatment than that provided for in this Convention or from granting asylum to persons other than those covered by this Convention."

The expert who submitted this proposal explained that its purpose was to make it clear that the draft Convention lays down a minimum standard and that States were free to act more liberally.

137.      During the discussion of these proposals certain experts took the view that, while there was no objection to States granting more. favourable treatment to asylees within the meaning of the Convention, it was not appropriate to grant asylum to persons who were not covered by its terms and in particular to persons falling within the exclusion provisions in article 2, paragraph 2. These experts therefore considered that, while the proposal in paragraph 2 above and the first sentence of the proposal in paragraph 3 above were acceptable, the second sentence of the proposal in paragraph 3 was open to question.

138.      Other experts considered that a grant of asylum to persons not covered by the terms of the Convention was permissible on the basis of State sovereignty and that this right of States to apply more liberal criteria would not be excluded by the terms of the Convention. One expert referred by way of example to recommendation E of the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,[15]n which adopted the 1951 Convention relating to the Status of Refugees. In this recommendation, the Conference expressed the hope that the Convention would have value as an example exceeding its contractual scope and that all nations would be guided by it in granting so far as possible to persons in their territories as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides. Another expert Pointed out that the flexibility that would result from a new article of the kind proposed was essential to Governments, since it was not possible to foresee all the circumstances in which, the humanitarian standards defined. in the Convention. might have to be applied.

139.      Certain experts, however, considered that asylum granted to persons not covered by the terms of the Convention would not need to be respected by other States, and one expert submitted a formal proposal for the addition of the following words to the text referred to in paragraph 136 above: "in the latter case that State shall not refer to the provisions of this Convention".

140.      After some discussion, the Group agreed to the adoption of a wording to take account of the last-mentioned proposal and to combine the wording of the proposals referred to in paragraphs 135 and 136 above as follows:

Nothing in this Convention shall prevent a Contracting State from granting asylum to persons referred to in article 2, paragraph 1, under conditions more favourable than those laid down in this Convention or from granting asylum to persons other than those covered by this Convention, it being understood that, in the latter case, the provisions of this Convention shall not apply.

141.      A further proposal for an additional article concerned the problem of a possible conflict between the obligation of States under the Convention and under other international instruments to which they might be parties. One expert submitted a formal proposal for an additional draft article to deal with this matter, to be worded as follows:

The provisions of the present Convention shall not affect the provisions of other international agreements to which Contracting States of this Convention are parties.

142.      Some experts considered that a provision of this type would not be appropriate since it should be left to States to resolve any problems that might arise for them out of possibly conflicting treaty obligations. Other experts pointed out that the question of conflicting treaty obligations was one of general international law and that this matter had been fully dealt with in the Vienna Convention on the Law of Treaties. They therefore considered that the inclusion of a provision of the type proposed in the present Convention would not be necessary. One expert considered that such a provision would only be acceptable if it served to maintain the applicability of other international instruments which were more favourable to asylees.

143.      The majority of experts agreed that the future Convention should contain provisions concerning the procedure for the settlement of possible conflicts between the provisions of the Convention and the provisions of other international agreements on the subject.

APPENDIX
Consolidated text of articles

(This appendix was prepared by the Secretariat at the request of a majority of experts and was not discussed as such by the Group.)

Preamble

The Contracting_States,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms,

Recalling that the General Assembly of the United Nations has solemnly declared that nations, irrespective of their political, economic, and social systems or the levels of their development, should base their co-operation, inter alia, on respect for human rights and fundamental freedoms,

Mindful of the Universal Declaration of Human Rights and in particular articles 13 and 14 of that Declaration and of the International Covenant on Civil and Political Rights and in particular articles 12 and 13 of that Covenant,

Conscious that asylum is a matter of concern to the international community,

Recalling the Declaration on Territorial Asylum [16] adopted by the General Assembly of the United Nations on 14 December 1967, and recognizing the important advance made by this Declaration in formulating principles upon which States should base themselves in their practices relating to territorial asylum,

Bearing in mind other instruments dealing with asylum and the status of refugees and of stateless persons,

Noting the present practice of States in granting asylum and the general acceptance of the principles of non-refoulement and the voluntary nature of repatriation, expressed in various instruments adopted on the universal and regional. levels,

Believing that the conclusion of a convention on territorial asylum will assist States to achieve those humanitarian objectives which are the common concern of the international community and will also thereby strengthen friendly relations between States,

Affirming the principles of international law embodied in the Charter of the United Nations and in particular the principle of universal respect for and observance of human rights and fundamental freedoms for all,

Have agreed as follows:

Article 1.         Grant of asylum

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.

Article 2.         Application

1.         A person shall be eligible for the benefits for this Convention if he, owing to a 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 lie. has no nationality, the country of his former habitual residence.

2.         The provisions of paragraph 1 of this article shall not apply to any person with respect to whom there are serious reasons for considering that he has committed:

(a)        A crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in. respect of such crimes, or

(b)        A serious common offence under the laws and regulations of the Contracting State granting asylum;

(c)        Acts contrary to the purposes and principles of the United Nations.

Article 3.         Non-refoulement

No person entitled to the benefits of this Convention who is in the territory of a Contracting State shall be subjected by such Contracting State to measures such as return or expulsion, which would compel him to return directly or indirectly to a territory with respect to which he has well-founded fear of persecution, prosecution or punishment for any of the reasons cited in article 1. Moreover, a Contracting State shall use its best endeavours to ensure that no person is rejected at its frontiers if there are well-founded reasons for believing that such rejection would subject him to persecution, prosecution or punishment for any of the reasons stated in article 2.

Article 4.         Provisional stay pending consideration of request

A person seeking asylum at the frontier or in the territory of a Contracting State shall be admitted provisionally to or permitted to remain in the territory of that State pending a determination of his request, which shall be considered by a competent authority.

Article 5.         International solidarity

Whenever a Contracting State experiences difficulties in the case of a sudden or mass influx, or for other compelling reasons, in granting, or continuing to grant, the benefits of this Convention, each Contracting State shall, at the request of that State, through the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, or by any other means considered suitable, take such measures as it deems appropriate, in conjunction with other States or individually, to share equitably the burden of that State.

Article 6.         Voluntary repatriation

If an asylee should, of his own free will, express his desire to return to the territory of the State of his nationality or former habitual residence, neither the Contracting State granting asylum nor any other Contracting State shall place any obstacles in the way of his repatriation.

Article 7.         Co-operation with the United Nations

The Contracting States shall co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may be created for the purpose, as regards the application of the provisions of this Convention. The Contracting States shall permit persons seeking asylum, if they so desire, to make contact with the Office of the United Nations High Commissioner for Refugees.

Article 8.         Peaceful character of asylum

The grant of territorial asylum in accordance with article 1, or the application of other articles of this Convention, is a peaceful and humanitarian act. It shall not be regarded as an act unfriendly to any other State and shall be respected by all States.

Article 9.         Right of qualification

Qualification of the grounds for granting asylum or applying the provisions of this Convention appertains to the Contracting State whose territory the person concerned has entered or seeks to enter and seeks asylum.

Proposed new article

Nothing in this Convention shall prevent a Contracting State from granting asylum to persons referred to in article 2, paragraph 1, under conditions more favourable than those laid down in this Convention or from granting asylum to persons other than those covered by this Convention, it being understood that, in the latter case, the provisions of this Convention shall not apply.



[1] A/10150

[2] For the list of representatives see A/AC.174/MISC.1.

[3] United Nations, Treaty Series, vol. 189, No. 2545.

[4] United Nations, Treaty Series, vol. 606, No. 8791.

[5] General Assembly resolution 2312 (XXII

[6] General Assemby resolution 428 (V).

[7] Adopted at the Sixth International Conference of American States, held at Havana from 16 January to 20 February 1928.

[8] Adopted at the Tenth International Conference of American States, held at Caracas from 1 to 28 March 1974.

[9]OAU document CU/267/Rev. 1.

[10] General Assembly resolution 2200 A (XXI)

[11] General Assembly resolution 2625 (XXV).

[12] The word "Each" was substituted for the word "The" for stylistic reasons.

[13] United Nations publication, Sales No.: E.70.V.5, p. 287.

[14] United Nations, Treaty Series, vol. 359, No. 5146, p. 273.

[15] United Nations, Treaty Series, vol. 189, No. 2545.

[16] General Assembly resolution 2312 (XXII).

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