THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980s

International Studies in Human Rights

VOLUME 10
The New Asylum Seekers:
Refugee Law in the 1980s
The Ninth Sokol Colloquium
on International Law

Edited by

DAVID A. MARTIN
Professor of Law
University of Virginia

Springer Science+Business Media, B. V.

Library of Congress Cataloging in Publication Data

Sokol Colloquium (9th : 1986 : University of Virginia

School of Law)
The new asylum seekers.

Includes index.
1. Refugees, Political--Legal status, laws, etc.--
Congresses. 2. Asylum, Right of--Congresses. I. Martin,
David A., 1948- II. Title.
K3230.R45A55 1986 342'.083 88-15168
342.283

ISBN 978-94-017-6391-2 ISBN 978-94-017-6389-9 (eBook)

DOI 10.1007/978-94-017-6389-9

All rights reserved

© Springer Science+Business Media Dordrecht 1988
Originally published by Kluwer Academic Publishers in 1988
Softcover reprint of the hardcover 1st edition 1988

No part of the material protected by this copyright notice may be reproduced or utilized in any
form or by any means, electronic or mechanical, including photocopying, recording, or by any
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 TABLE OF CONTENTS

Preface vii
Contributors XV

INTRODUCTION 1
The New Asylum Seekers
David A. Martin

I. JET-AGE REFUGEES: IRREGULAR MOVEMENTS AND GOVERNMENT

RESPONSES

Irregular Movements: The Concept and Possible Solutions 23

Gilbert Jaeger
"Jet-Age Refugees": Search of Balance and Cooperation 49
Michie} den Hond
Reflections on the U.S. Refugee Act of 1980 57
Doris Meissner
United States Asylum Policy 67
Laura J. Dietrich
The Country of "First Asylum": Some European Aspects 73
E.W. Vierdag

II. NEW APPROACHES WITHIN AND WITHOUT THE LAW

The Principle and Practice of Temporary Refuge: A Custo- 87

mary Norm Protecting Civilians Fleeing Internal Armed Conflict
Joan Fitzpatrick Hartman
Nonrefoulement and the New Asylum Seekers 103
Guy S. Goodwin-Gill
vi

Nonrefoulement and "Humanitarian" Refugees: 123

Customary International Law or Wishful Legal Thinking?
Kay Hailbronner
Sanctuary: A Comment on the Ironic Relation Between Law and 159
Morality
Tom Gerety
The New Asylum Seekers: Addressing Their Origin 181
Jack I. Garvey

APPENDIX
Selected Conclusions on the International Protection of 195
Refugees, Adopted by the Executive Committee of the High
Commissioner's Programme

INDEX 209
 PREFACE

In the 1980s, the venerable institution of political asylum is facing

profound challenges, particularly in Western nations. Unprecedented num-
bers of asylum seekers are coming from distant countries, invoking, once
they arrive, often lengthy and complicated procedures in order to claim
protection against return to their homelands. These new challenges have
evoked a wide range of reactions from government officials, lawyers, scho-
lars, private citizens, and the Office of the United Nations High Com-
missioner for Refugees (UNHCR).
In April 1986, the University of Virginia School of Law hosted a collo-
quium in Charlottesville, with the generous support of the Gustave Sokol
Fund, to address the many legal and political issues raised by these develop-
ments. The participants were drawn from the ranks of government officials,
UNHCR staff, and scholars, and they came from both Europe and North
America. This volume consists of essays that were first delivered at that
colloquium. In the months since then, of course, there have been many new
developments involving asylum seekers, but none that affect significantly the
basic themes or points presented. Most of the authors have been able to do
a modest amount of updating to take account of recent developments, but
the papers maintain their principal focus on the situation as of the time of
the conference.
This volume also includes a brief documentary appendix, reprinting some
of the most important Conclusions on International Protection adopted by
the Executive Committee of the High Commissioner's Programme over the
past decade. These Conclusions, mentioned frequently in the essays in this
book, provide an important source of guidance on evolving refugee doctrine
or recommended practice. Nevertheless, they are often less accessible to the

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
Vlll

public than the more familiar texts of refugee law; hence their reproduction
in the appendix.

A preliminary tour. A few more introductory words may be in order. The

Introduction and the paper by Gilbert Jaeger provide sketches of the factual
background, describing the phenomenon of the new asylum seekers and the
reactions of the receiving states. They then proceed to offer varying
approaches toward solutions. The Introduction concentrates on the reasons
why Western publics find the new situation so difficult and why governments
resort increasingly to deterrent measures and restrictive practices. It also
tenders suggestions for how refugee advocates and government officials
might break out of this vicious circle, which now deals out harsh treatment
indiscriminately, to deserving refugees and undeserving abusers of the sys-
tem alike.
Gilbert Jaeger, the author of an important UN study on "irregular move-
ments" of asylum seekers, gives primary attention to a different aspect of the
problem. That study was prompted by the concerns of Western nations that
a great many of the new asylum seekers were reaching their borders - or
airports - in an irregular fashion. But because virtually all asylum seekers
travel in an irregular manner at some point in their flight, it is important to
be very clear about what constitutes an "irregular movement" in this pejora-
tive sense. Summarizing the conclusions of his study, Jaeger argues persua-
sively that movements should be counted as a irregular only if the asylum
seekers leave a country of first asylum, not merely a transit country, in which
they have enjoyed an adequate measure of "protection." There appears to
be wide acceptance of this general statement, but that acceptance masks two
possible areas of dispute, and the reader should not miss those points: What
constitutes sufficient "protection" in the first country? What is mere "tran-
sit"?
As to "protection," Jaeger offers a helpful four-part scheme for assessing
an asylum seeker's situation in the country in which he first arrives. The host
country's provisions may range from mere shelter, without even a guarantee
against eventual repatriation, all the way up to the full panoply of benefits
that we associate with durable asylum. Jaeger suggests that a fairly ample
measure of benefits should be required before counting any further move-
ment as irregular - a view that would maximize the free choice of the asylum
seeker to move onward.
On this point, the principal response to Jaeger's position may be found
in the paper by Michiel den Hond, who is head of the Asylum Section of
the Foreign Ministry of the Netherlands and who has played a significant
role in UN and European deliberations on these matters. He argues
implicitly for a lower threshold for recognizing that "protection" exists in a
 IX

first-asylum country, with the result that more movements away are likely
to be counted as irregular. Den Hond also introduces a most important
concept when he speaks of a "division of labor" in refugee matters. The
world can derive maximum benefit, he suggests, from the limited resources
available for refugee aid and assistance if the various governments involved
furnish what each is best suited to provide. In general, developing countries
are better positioned to provide camps or other accommodations in an
economical fashion for refugees from nearby developing countries; support
of such individuals becomes considerably more expensive if instead they
move on their own to industrialized nations - to the ultimate detriment of
the broader refugee group from whom resources will then be diverted. The
major function of the industrialized nations, on the other hand, is to provide
large amounts of aid and assistance, and also, selectively, to provide
resettlement opportunities as appropriate. This scheme can be knocked
askew, den Hond contends, by enterprising asylum seekers who, in an
understandable quest for a better individual outcome, move on their own to
the developed countries and thereby undermine the world community's
efforts to find the optimum solution for refugee populations as a whole. Den
Hond thus argues for doctrines that would help assure that asylum seekers
ordinarily remain in the first country in which they arrive, assuming only that
they have achieved a minimum level of protection there. His paper may also
be seen as a challenge to UNH CR to play a larger role in discouraging
onward movements in such circumstances, and perhaps also to help
developed countries secure the return of the individuals involved to the
territory of reluctant Third World asylum nations.
The second definitional issue suggested by Jaeger's presentation- what
constitutes "transit"? - is further addressed in the otherwise quite different
essays of Laura Dietrich, at the time of the conference a Deputy Assistant
Secretary in the U.S. Department of State, and E. W. Vierdag, a member
of the faculty of law at the University of Amsterdam and a recognized
authority on refugee matters. Both speak of the so-called "principle of the
country of first asylum" (Vierdag at some length, Dietrich in the course of
making other points). The debates over this principle are in essence debates
over the concept of transit. When should an asylum seeker be considered
to be merely in transit, and hence not expected to apply for durable asylum
in the first country reached after flight from the homeland? Or to put it
another way, how long a stay is required, and under what circumstances,
before he is considered, instead, the responsibility of that first country?
Dietrich reflects the view of most American officials in her references to what
she regards as a well-established principle offrrst asylum, one that mandates
application for protection in the first country of arrival in almost every
circumstance. Vierdag, in contrast, describes the remarkable diversity of
X

views regarding the principle of first asylum among the countries of Europe,
which have had much more extensive experience applying - and debating -
the concept. No firm resolution has yet been found, and the point is still a
matter of some dispute, much of it played out in the Council of Europe's
committee known as CAHAR. When states take such different views of this
principle, refugees may be shuttled from country to country as each declines
responsibility for considering the asylum request. This is a situation now
classically known as "refugees in orbit."
Laura Dietrich's paper further comments upon the public confusion and
concern prompted by the new asylum seekers, and sometimes by exaggerat-
ed claims that nearly all of them deserve asylum. These reactions, in turn,
may lead to political polarization, and they certainly drive governmental
efforts to restrict asylum seekers or deter their arrival. Doris Meissner, who
was also a U.S. government official at the time of the conference (Executive
Associate Commissioner of the Immigration and Naturalization Service),
provides a different perspective on the phenomenon. She is equally concern-
ed about public confusion and polarization, about how the current pressures
often blur the lines, in the public eye, between refugees and immigrants. But
she concentrates much of her discussion on the ways government policy in
the United States has contributed to such confusion, largely through foreign-
policy-based distortions of what should be neutral asylum decision-making.
In fact, her paper provides a remarkable, and remarkably candid, inside
glimpse of these distortions and their impact on the policy debate. She
recognizes the substantial complexity of the issues involved, but her paper
stands as a powerful call for removing, to the fullest extent possible, the
calculations of foreign policy from the adjudications of individual asylum
claims.
These same distortions have sometimes prompted private citizens to take
their own actions to thwart what they see as improper - or outrageous -
government policy. The American sanctuary movement, which attempts to
shelter in churches and private homes asylum seekers facing return to
countries in Central America, first burst into public prominence in the early
1980s. Similar civil disobedience movements are now making an appear-
ance, as well, in several European countries - sheltering, for example, Sri
Lankans and Chileans. Tom Gerety, dean of the law school at the University
of Cincinnati, examines the sanctuary movement in his paper. He locates the
movement helpfully among its diverse historical antecedents. And he offers
many unexpected and provocative insights as he explores the intricate
relations among law, politics, morality, and religion suggested by the actions
of sanctuary practitioners and opponents.
Persons providing sanctuary have occasionally been prosecuted for their
actions. Sometimes their defenses are based on claims that their actions are
 Xl

not illegal - that customary international law now imposes on nations an

obligation to protect wider categories of threatened individuals than simply
those who are covered by the classic refugee treaties. Professor Joan Fitzpa-
trick Hartman of the University of Washington, who participated in the
defense in some of the U.S. sanctuary cases, provides here an important
statement of one of those arguments. She asserts that international law
mandates the nonretum of persons to countries involved in armed conflict,
and she marshals the evidence in support of this claim. Guy Goodwin-Gill's
paper argues for similar conclusions, although on different grounds. Ex-
panding upon points appearing in his important 1983 book, The Refugee in
International Law, he contends that the principle of nonrefoulement should
be considered to shelter a far wider range of persons in need than simply
those who fit within the traditional refugee definition provided in the 1951
UN Convention. He also provides several suggestions as to how such
obligations might be carried out.
Arguments of this kind (asserting legal obligations to wider categories of
humanitarian refugees) have been warmly received and widely repeated in
refugee advocacy circles. Governments tend to dismiss them, but also rarely
attempt to take on such arguments on their own terms - on the turf of
customary international law. Professor Kay Hailbronner of the University
of Constance provides exactly such a legal analysis here, however. He
examines the evidence used by the proponents of those arguments and finds
it wanting. Although governments do often refrain from sending people
home to states wracked by civil war, they consider this practice as something
other than a legal requirement. Instead, he suggests, it is "simply a com-
mendable humanitarian policy when circumstances permit." Hailbronner
does agree, however, to some modest expansion in our understanding of the
legal requirements. He finds that customary international law now forbids
the return of individuals who would face torture at home, even if they are
not strictly covered by the terms of the 1951 Convention.
Finally, Professor Jack Garvey of the University of San Francisco asks
us to expand our field of vision. The refugee arena, not surprisingly, is
dominated by the humanitarian point of view. Doubtless this is as it should
be, but sometimes humanitarians refuse to consort with the geopolitical
types responsible for other aspects of foreign policy. Garvey wants to break
down those barriers. He sees in the current world political situation certain
unique opportunities that have been overlooked because they were not
present in the immediate postwar era when modem refugee law took shape.
In particular, conditions now would permit greater involvement of, and
pressure on, states of origin to help find solutions to refugee problems -
problems which are, after all, principally their responsibility. In this con-
nection, he examines recent UN efforts, under the rubric of "root causes"
Xll

or "human rights," to begin tackling these issues. He is highly critical of these

early attempts, but his overall point is one that should be taken to heart by
all refugee advocates. The world community needs more communication
and cooperation between humanitarians and geopoliticians, precisely
because today's large-scale refugee movements pose profound human and
political problems.

Acknowledgements. As director of the colloquium and editor of this vol-

ume, I have accumulated many debts of gratitude which should be acknow-
ledged here (at some risk of omitting the mention of several people who
deserve credit). First of all, the participants in the colloquium contributed
greatly to a most challenging and stimulating conference on a spring
weekend in Charlottesville. They also have been unfailingly receptive and
cordial throughout what became a somewhat protracted editing and publi-
cation process. Thanks must also be expressed, of course, to the Gustave
Sokol Fund for its gifts that created the Sokol Colloquium Series here at the
University of Virginia. The Fund's generosity has made possible many
excellent conferences over the years, and I am grateful that we were able to
devote the Ninth Sokol Colloquium to this particular set of humanitarian
and legal issues. Thanks are also due to the members of the John Bassett
Moore Society and the Virginia Journal of International Law, who helped
with many of the details of the symposium. The Journal also cooperated by
publishing in its pages a couple of the papers appearing here, on a shorter
time schedule than was possible for a hardbound volume of this sort.
I have also benefited greatly over the years from the counsel and support
of my colleague Richard Lillich, the first director of the Sokol series and a
well-known pioneer in the human rights and refugee fields. Another col-
league, William Eskridge, succeeded Professor Lillich as overall director of
the Sokol series. It was his idea to devote the 1986 conference to a refugee
topic, and he was of great assistance to me in organizing and managing the
conference. I am also grateful to Deborah Anker and Luke Lee for their
special roles during the colloquium.
I owe much of my personal acquaintance with the issues considered here
to research I undertook in Europe in 1984-85, with the generous support of
the Ford Foundation and the German Marshall Fund of the United States.
During that time I refined my ideas for the conference Bill Eskridge had
suggested, and without that research year I would not have met many of the
people invited to participate. Some of the fruits of my European research
also appear in the Introduction to this volume, and I want to reiterate my
gratitude to the two foundations for their financial support and their
patience.
 Xlll

Indispensable research assistance was provided to the editor by a host of

Virginia students. I would like to give special mention to Janet Rothwell
Smith, Suzanne Ewing, Bart Goossens, Chris Yukins, Dan Jordanger,
Daniel Fitzpatrick, and Shireen Lewis. Patient typing and retyping of the
manuscripts was provided principally by Marian Ryerson, whose help over
the years in many projects has been of inestimable value, and also by the staff
of the Publications Office at the University of Virginia. Finally, I cannot say
enough about the assistance provided by Danielle Cormier, coordinator of
the Ninth Sokol Colloquium. Drawing upon her years of experience with
these conferences, she managed all the necessary logistical details with great
skill. Her hospitality, multilingual talents, and cheerful good spirits were
crucial to the success of the Colloquium.

Charlottesville, Virginia David A. Martin

December, 1987
 CONTRIBUTORS

MICHIEL DEN HOND is head of the Asylum Section of the Netherlands

Ministry ofForeign Affairs. He joined the Ministry after serving as an officer
for the High Commissioner for Refugees, principally in Kenya. In his present
capacity he has, inter alia, participated in the work on a number of Con-
clusions on refugee protection of the UNHCR Executive Committee.

LAURA J. DIETRICH is a writer and editor living in Washington, D.C. She

was, at the time of the Colloquium and until April1987, Deputy Assistant
Secretary for Human Rights and Humanitarian Affairs in the U.S. Depart-
ment of State, with responsibility for political asylum.

JACK I. GARVEY, professor oflaw at the University of San Francisco, is

the author of numerous works on refugee law and policy and on international
law.

ToM GERETY, professor oflaw at the University of Pittsburgh at the time

ofthe Colloquium, is currently Dean and Nippert Professor, College of Law,
University of Cincinnati. He received the M.Phil. and Ph.D. degrees in
Philosophy and a degree in law from Yale University.

GUY S. GOODWIN-GILL is Senior Legal Advisor in the Office of the

United Nations High Commissioner for Refugees. He is the author of several
books and articles on refugees, migration, and international law.

KAY HAILBRONNER holds the Chair of Public Law, Public International

Law, and European Law, at the University of Constance, Federal Republic
of Germany. He is the author, inter alia, of a leading treatise on aliens law
in the Federal Republic.

JOAN FITZPATRICK HARTMAN is professor of law at the University of

Washington in Seattle, teaching and writing in the fields of immigration,
xvi

refugee, and human rights law. She is also a member of the Board of the
American Branch of Amnesty International.

GILBERT JAEGER is currently chairman of the Belgian Committee for Aid

to Refugees. During a long career with the Office of the UN High Com-
missioner for Refugees, he filled many posts, including Director of Assis-
tance and later Director of Protection.

DAVID A. MARTIN is professor of law at the University of Virginia and

the author of several works on immigration and refugee law and policy. He
served from 1978 to 1980 in the Bureau of Human Rights and Humanitarian
Affairs at the Department of State.

DORIS MEISSNER was, at the time of the Colloquium, Executive Associate

Commissioner of the Immigration and Naturalization Service, U.S. Depart-
ment of Justice. Shortly thereafter, she left government service and is now
Senior Associate of the Carnegie Endowment for International Peace.

E.W. VIERDAG, a graduate of the University of Amsterdam and the

Columbia University School of Law, is senior lecturer on the faculty oflaw
at the University of Amsterdam. He has also served since 1974 as a member
of the Commission on Aliens' and Refugees' Appeals, Netherlands Ministry
of Justice.
THE NEW ASYLUM SEEKERS:

REFUGEE LAW IN THE 1980s

 THE NEW ASYLUM SEEKERS

DAVID A. MARTIN

[Wje live in an age when asylum-seekers are no longer only border

crossers, but arrive by sea and by air in increasingly large numbers
in countries far away from their homelands, in Europe, in North
America and elsewhere. Their very presence and the problems result-
ing from the dimensions of this new phenomenon are exploited by
xenophobic tendencies in public opinion. I well understand the dilem-
ma facing many host countries, but /fear that these difficulties might
tempt some Governments to consider adopting restrictive practices
and deterrent measures which in my view should never be resorted to
in dealing with refugees. I can propose no easy solution to this growing
problem of intercontinental jet-age asylum-seekers and "refugees in
orbit." But I would welcome your views on how the international
community could come to grips with these problems in a positive way.

Pout Hartling, UN High Commissioner for Refugees, addressing

the 1984 meeting of the UNHCR Executive Committee 1

The basic outlines of modern refugee law took shape in the years immedi-
ately after World War II, capped by the creation of the Office of the UN High
Commissioner for Refugees (UNHCR)2 and the adoption of the 1951 Con-
vention relating to the Status of Refugees. 3 This legal and organizational
framework has proven remarkably durable, adapting even as the refugee
problems confronting the world have changed considerably. But the stresses
of the 1980s pose profound challenges, in part because they crop up most
acutely in the West, where modern refugee law first took root and where it
once enjoyed some of its major successes. They are challenges whose di-
mensions are not yet fully appreciated.
Many of the trends in national response, as High Commissioner Hartling
remarked in 1984, are indeed troubling. Whether they will leave modern
refugee law a vacant shell depends on clear thinking about the new situation.

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
2

In fact the dilemmas of the 1980s should be seen as an urgent invitation to

rethink the fundamentals of refugee protection, but few are listening to that
invitation in the midst of the noisy political battles now taking place. Instead,
governments often move reflexively to restrictive practices and deterrent
measures, while refugee advocates condemn the changes as xenophobic and
overlook the genuine concerns that the new phenomenon generates among
the public - concerns that government officials are attempting to address,
however crudely. Offered in this introductory essay is a brief historical
account meant to mark out, in rough fashion, certain major periods in
refugee protection leading from World War II to the present age of the new
asylum seeker. 4 There follows an attempt to identify just what is new about
this phenomenon, and what can be done in response. Contrary to some
assertions, this is not simplythe appearance of old problems on new terrain,
the terrain of the wealthier d~ocracies of the West. The problems are also
qualitatively different, and until we understand why, we cannot appropriate-
ly judge what governments are doing, nor can we adequately shape public
policy and law in response.

I.

In the late 1940s and early 1950s, millions of displaced persons could be
found throughout Europe, uprooted by a cataclysmic war then fading into
the past, but unwilling to return to homelands that had come under Soviet
domination. At the time, attention to refugee issues focused mainly on the
need to find permanent homes for these Europeans. Of the 23 states that
became parties to the 1951 Convention before 1960, eighteen were nations
of Europe, and at least four of the other five enjoyed especially close links
with that continent that probably account for their early accession. 5 This
basic Eurocentric pattern, savoring strongly of the Cold War, was reinforced
by the next major refugee incident, the exodus from Hungary in 1956. Most
of those refugees found new homes in Western Europe or across the Atlantic.
The 1960s and 1970s marked a second phase, as the focus of attention
shifted to what was only beginning to be called the Third World. Mrica was
the scene of significant population displacements as new countries gained
independence within European-drawn boundaries that often cut oddly
across ethnic and language divides. But nearly all Mrican refugees remained
in Mrica, as the new nations there mounted efforts of often impressive
hospitality for the displaced from nearby countries. The colonial legacy also
produced refugees on other continents. In 1971, for example, bitter turmoil
in East Pakistan, followed by atrocities and civil war, forced some 10 million
 3

refugees into India. This potentially enormous refugee problem proved man-
ageable only because India played midwife to the prompt birth of Bangla-
desh. Most of the 10 million could then return home in safety after a fairly
brief period of exile. 6
These Third World efforts often entailed the involvement of the UNHCR.
Some concern was voiced about the legal foundation for such involvement,
because it was recognized that not all these displaced populations readily fit
the mandate set forth for that Office in its 1951 Statute. The mandate rested
on essentially the same rather narrow and individualized definition of "ref-
ugee" that appears in Article I of the 1951 Convention, with its central
concept of a "well-founded fear" of persecution. Application of the definition
tends to require a particularized inquiry to decide whether the person, or a
group to which he belongs, is subject to a focused threat of persecution. The
populations assisted during this period, in contrast, were being assisted
without individualized determinations. Moreover, their flight across a border
often (but not exclusively) resulted from the dangers of war or civil unrest
rather than targeted persecution. In the end, however, these definitional
qualms were allayed by new authorizations from the General Assembly. A
series of resolutions authorized UNH CR involvement to help both tradition-
al mandate refugees and other displaced populations. 7
These UNHCR efforts were funded in significant part by the wealthier
countries of Europe, North America, and the Pacific. But aside from this
philanthropy, and some continuing efforts to find placements for the last of
the World War II refugees, these years meant for the West largely a quiet
spot on the sidelines. Resettlement of new refugees from Eastern Europe
continued, but with reduced numbers and perhaps with reduced drama as
detente and Ostpolitik began to take tentative hold.
The fall of Saigon in 1975 forced the world to adopt a new perspective
on refugee efforts and thereby ushered in a third phase of thinking on refugee
law and practice. The dramatic rooftop rescue ofVietnamese from the U.S.
embassy grounds, replayed on TV screens around the world, symbolized the
1975 exodus. It was a sudden sharp outflow, involving about 120,000 people,
and it punctuated the end of a long and tragic Western venture in Vietnam,
one that had ensnared, in succession, both France and the United States.
These exiles of 1975 found distant homes rather readily, most of them in the
United States, and it looked for awhile as though this refugee crisis too
would pass. But by 1978 a whole new wave of utterly unexpected pro-
portions was moving to temporary shelter in many parts of Southeast Asia.
The peak periods brought as many as 50,000 boat people a month to the
reluctant first-asylum countries of Southeast Asia. A less dramatic land
exodus was also underway, magnifying the burdens. Aware that repatriation
to Vietnam was unlikelv. the receiving countries insisted that anv durable
4

solution had to come through resettlement in other countries. Eventually the

world community, challenged and prodded by UNHCR and voluntary
agencies active in relief efforts, rallied to assist and resettle these refugees and
their counterparts from Laos and Cambodia. 8
For the West, these years introduced on a broad scale the concept of
"quota refugees," as they are often known in Europe. Distant nations
pledged in advance to provide resettlement for a stated number of persons,
and then cooperated in efforts to move the preselected refugees to their new
homelands. (This of course had been the predominant mode of refugee
involvement for the United States and Canada long before, at a time when
nearly all of those nations' quotas were set aside for the Eastern Europeans
selected in Europe. 9 )
The quota refugee programs of the late 1970s brought refugee law and
practice decisively out of the era of mere border-crossing, to use High
Commissioner Hartling's term, but this change occasioned little further
reflection at the time. Third World refugees were moving onward to durable
solutions in distant lands, but at a pace and as part of a process that still
remained subject to several controls imposed by the resettlement countries.
Hence the new efforts still fit rather readily within established assumptions
and patterns, and gave little cause for Western publics to think that refugee
programs greatly threatened a sovereign nation's usual prerogative to exer-
cise deliberate control over immigration. 10
If the late 1970s were dominated by distant resettlement and "quota
refugee" programs, the 1980s swiftly commanded awareness of direct arri-
vals of asylum seekers in Western countries. The most dramatic incident
may have been the boatlift to Florida from the Cuban port of Mariel.
Although Cubans had been coming to the United States for years, never had
their arrival been so sudden or so chaotic. Some 125,000 arrived within the
course of a few months in the spring and summer of 1980, and officials
scrambled just to cope with basic requirements of shelter and security.
Media commentators and politicians began to say, inaccurately, that the
United States was having to learn "for the first time" how to be a first-asylum
country. Since Cubans had certainly come directly to Florida before, these
statements meant, one supposes, that their authors talked of.first asylum only
in the unspoken hope that the United States might not remain the country
of permanent asylum. At about the same time, the United States also was
receiving unprecedented numbers of political asylum applications from the
nationals of other developing countries, notably El Salvador, Haiti, Nicara-
gua, and Iran. 11
The 1980s also brought chronic and massive new pressures on the politi-
cal asylum systems of Western Europe. Whereas in 1976 Western European
nations received only about 20,000 "spontaneous" asylum seekers (as they
 5

are sometimes called in order to distinguish them from the participants in

quota refugee programs}, in 1980 they received over 158,000 such applicants.
The next three years witnessed a temporary decline, but by 1984 the numbers
began another steep ascent, and in 1986 the annual total surged over the
200,000 mark. Unlike the 1950s and 1960s, when direct asylum seekers were
few in number and overwhelmingly from Eastern Europe, these new asylum
seekers came from all parts of the globe, with growing contingents from
South Asia, Mrica, Turkey, and (to a lesser extent) Latin America.
Gross totals are sometimes hard to appreciate, and in any event the
arrivals are not evenly distributed throughout Europe. Take Switzerland,
then, as a more focused example. It received over 9700 applications in 1985.
To an American reader recalling Mariel, that may not seem to be a large
number of asylum seekers. But on a per capita basis, it is as though 330,000
arrived in one year in the United States -more than double the U.S. arrivals
in 1980, a year when sharp political controversy enveloped the asylum
question on this side of the Atlantic. Nor is Switzerland the most heavily
affected country. West Germany received the U.S. equivalent of 380,000
asylum seekers in 1986, and Denmark and Sweden topped the list at an
equivalency rate of over 400,000. Political controversy has generally
compounded in direct ratio to the number of asylum seekers. 12
In short, the third phase of refugee efforts, marked by the predominance
of quota refugee programs, was succeeded with stunning speed by the fourth
phase, the era of the new asylum seeker.B Just why is less clear. A rise in
persecution, war or other dangers is sometimes hypothesized, but a change
of this magnitude on these melancholy scales is not immediately apparent
from the historical record. In any event, it would not necessarily account for
the shift from border crossing to jet-age asylum seeking as a preferred
response. The relative decline in travel expense is sometimes cited as a cause,
as is the appearance of a new kind of entrepreneur who arranges for the
travel and instructs his charges on how to apply for political asylum once
they arrive. 14
But perhaps it was the very successes of the third phase that prompted
potential asylum seekers to start thinking about "spontaneous" movements
to the relatively stable, safe, and well-to-do havens of the West. The drama
of the Indochinese boat people was covered extensively by the worldwide
media. As the world looked on, the doors of desirable western countries,
including many that still insisted they were not countries of immigration, 15
suddenly swung wide to admit necessitous individuals from distant lands.
And what was the key that opened those doors? An assertion of refugee
status. If it worked for them, why shouldn't it work for others - either those
already enduring camp life after crossing a border to escape persecution or
6

war at home, or others still within their troubled homelands but thinking hard
about alternatives?
Whatever the cause, more and more people began to come and claim
asylum directly within Europe and North America. And as a few gained a
reasonably secure foothold in that way, doubtless their successes embolden-
ed family members and acquaintances still at home or in a first-asylum
country to start thinking about a similar path to a better future.

II.

The new asylum seekers have become a major political issue in numerous
European countries. The expenses for their support or their suspected com-
petition for scarce jobs weigh heavily in the controversy. Charges of "false
refugees" pepper political debates, bolstered by occasional stories of real
fraud committed by someone who poses as a refugee. And some right-wing
parties have found in these issues a new key to electoral success never before
enjoyed. Attitudes toward aliens in general have hardened, and governments
have felt compelled to react. From this volatile and polarized political
climate have emerged the restrictive measures and deterrent practices that
High Commissioner Hartling lamented in 1984. 16
Some such measures are designed to make it more difficult for asylum
seekers to reach the West in the first place. For example, Europeans are
taking a page from the American practice book and imposing advance visa
requirements on the nationals of a growing list of developing nations. Promi-
nent among them are nations like Sri Lanka, Bangladesh, Ghana, and Zaire
that have already generated a substantial portion of the new asylum seekers.
The objective is to assure that persons lacking these documents are reliably
screened out at overseas ticket counters before they can set foot in a possible
asylum country. Although some mention is made of liberal granting of visas
at European consulates in the country of origin to those who are in danger,
refugee advocates remain skeptical of the reality and efficacy of such steps. 17
Similarly, East Germany used to be a primary conduit for asylum seekers
reaching Western Europe, most of them taking advantage of the open
westbound borders of West Berlin. But Denmark, Sweden, and later West
Germany have made arrangements whereby East Germany now generally
refuses transit privileges to the nationals of designated states unless they
demonstrate prior receipt of advance permission to enter those potential
asylum countries in the West. 18 And the United States has added its own
powerful and symbolically most troublesome contribution to this list: the
interdiction, before they can reach U.S. shores, of small boats coming from
Haiti with potential asylum seekers. 19
 7

These efforts to prevent arrival altogether cannot be entirely successful,

of course. Some asylum seekers will still make it to the national territory. A
few countries are therefore experimenting with strict requirements mandat-
ing application for asylum at designated border posts (or even on the
airplane, before debarking), apparently to facilitate swift removal of people
who are judged not to qualify. 20 This leaves little recourse to appeals or other
correctives when mistakes are made. And mistakes are virtually inevitable
when so difficult a judgment is made with haste, especially in the current
climate of suspicion and hostility.
For those persons who nevertheless continue to make it into the ordinary
asylum adjudication process, another layer of deterrent measures may await.
Most of these are fairly recent innovations, marking a decided change from
the usually generous treatment formerly accorded asylum seekers awaiting
a decision, in the days when asylum seekers were few in number. A few
countries hold some asylum seekers (albeit a small minority) in prison-like
detention. 21 More commonly, Western countries now require that asylum
seekers live in communal housing facilities of minimal amenity, and most
now deny permission to work pending completion of the adjudication pro-
cess. 22 Because final decisions on asylum claims can require months or even
years, asylum seekers thus must endure long periods of depressing idleness
in austere surroundings.
Deterrent measures often have the unintended effect of simply diverting
the flow of spontaneous asylum seekers somewhere else. Canada's surpris-
ing discovery of 154 Tamils from Sri Lanka in lifeboats off its shores in
August 1986 exemplifies the pattern and also reveals the extensive
geographical reach of the phenomenon of the new asylum seeker. The Tamils
claimed at first that they had stowed away aboard a ship in India in a
desperate attempt to escape danger half a world away. They stated that they
were cast off near the Canadian coast when the boat captain discovered
them. Upon investigation, however, this story proved untrue. Instead, they
had flown aboard Aeroflot to Eastern Europe, made it into the Federal
Republic of Germany by way of Berlin, and then spent considerable time in
Germany awaiting decisions on their applications for asylum. Tiring of the
difficult situation there, and learning of Canada's liberal reputation with
regard to asylum seekers, they arranged with a freighter captain, allegedly for
a stiff fee, to cross the seas to a what looked like a more favorable reception.
Lifeboats were used apparently both to increase sympathy for their situation
and to complicate any effort at tracing their path or forcing return to
Germany. 23 Events like this, however, prompted Canada to adopt its own
restrictions and deterrents in early 1987. And they have increased the inter-
est in UN circles in coordinated efforts to control such "irregular move-
ments."24
8

III.

If we are to respond effectively to the current situation, we must first be

clear about the real newness of the phenomenon of the new asylum seekers.
A skeptic might well quarrel with the assertion. If asylum seekers are no
longer merely short-distance border crossers, he might argue, they nonethe-
less remain needy people with the same requirements for protection, food,
and shelter, ultimately aspiring toward a chance for a new start on life away
from the risks and dangers that sent them on their quest. The needs persist,
whatever the geography or mode of travel. On precisely these grounds, some
developing country spokespersons have challenged the West over its new
concern regarding "false refugees," "irregular movements," and the like. To
such persons, the West is simply unable to take the medicine of receptiveness
to new arrivals that it has prescribed in tiresome abundance to impoverished
countries like Thailand or Malaysia over the last decade. They were asked
to take in and be tolerant of large influxes. Now that cheaper travel has
exposed the West to similar spillover from troubled nations, surely the same
humanitarian response is required.
A reminder to take one's own medicine is surely salutary. And a review
of Western governments' complaints about certain developing countries'
deterrent measures, voiced before the former began imposing their own, will
doubtless reveal a large fund of hypocrisy. But there are genuine elements
of novelty in the new phenomenon that are crucial to our understanding. And
they are differences that in the end may force us - the West and the world
community as a whole - to rethink the exact meaning of, and appropriate
level of ambition for, refugee law in the final decades of a crowded and
violent century.
The novelty rests on two features that were present in the earlier era of
short-distance border crossing, but now no longer obtain. (Again I paint with
a broad brush that ignores certain exceptions and qualifications. But the
broader picture is instructive.) First, the old system took for granted certain
natural barriers to movement that kept the numbers of direct asylum seekers
tolerably low and thereby shielded the West from having to confront certain
fundamental tensions. Third World refugees were simply too distant to move
directly in any significant numbers. Eastern Europeans (who formed the
overwhelming majority of spontaneous asylum seekers in the West until
recently) were nearby, but their numbers were sharply restricted by the
internal exit controls imposed and enforced by their home countries. 25
These barriers allowed the Western world to pay little heed to a profound
tension - even contradiction - that has always lain at the base of Western
refugee law's treatment of spontaneous asylum seekers. That tension pits the
guarantee of asylum26 to expanding categories of persons deemed refugees,
 9

on the one hand, against the widely accepted premise that sovereign govern-
ments must retain deliberate control, in the interests of their citizenry, over
the entry and sojourn of foreigners. The new asylum seekers have brought
those days of innocence to an end. The tension is now manifest. Unless the
public can be persuaded to drop its insistence on government management
and control over entry, some new basis for accommodation with the inher-
ently unruly notion of asylum will have to be found.
This brings us to the second and closely related novelty in the new
situation. The old system provided certain guarantees of refugee bona fides
that seemed to operate almost automatically, without need of difficult and
painstaking adjudications of individual claims to refugee status, and indeed
without much clarity about precisely what it is that distinguishes a refugee
from other sorts of migrants.
We tend to think of refugees as among the world's most unfortunate
persons- exposed to dangers and persecution at home, then cruelly uproot-
ed to seek an uncertain fate outside the country of their birth. But paradoxi-
cally, to be a "refugee" today - to fall into the class of persons whom the
world community is prepared to treat under that potent label - is also to
assume a position of privilege. 27 Perhaps this paradox is one of the most
significant legacies of the Hitler era. A world that did far too little for refugees
and potential refugees in the 1930s, at a time when they were faced with the
very gravest of risks from an utterly ruthless regime, has tried to show that
it learned its lesson. 28
Beginning in the immediate postwar era, refugees came to be associated
with special measures for protection and assistance. International treaties
providing them significant guarantees were drafted and promoted, and an
important international institution, the Office of the UNHCR, came into
being solely to watch out for their welfare. As a result, the label "refugee"
is not solely a neutral descriptive term. It has become a call to action, a
challenge to humanitarian response, an invitation to roll up one's sleeves and
find ways to help, to rally material support and find new homes for these
special categories of individuals - even if in doing so the ordinary national
prerogatives for restricting immigration, usually jealously guarded, are to be
overridden. But the label will lose that evocative power, and the special
exemption from the strictures of ordinary immigration controls that it com-
mands, if the public no longer believes that those who claim the status truly
are specially jeopardized.29
When asylum seekers follow the traditional pattern of border-crossing, the
classic initial response has been to set up refugee camps, usually with
international assistance coordinated through the UNHCR. Some camps
provide only the most minimal conditions necessary to sustain life; others
afford some opportunity for refugees to be productive and contribute to their
10

own self-sufficiency. Sometimes it is clear that the camps exist for a tempora-
ry period until repatriation is possible. Other times they are holding centers
while the asylum seekers wait for resettlement opportunities in distant
countries. And on some occasions, refugee camps eventually become
functioning communities slowly integrated into the on-going society of the
host country.
But whatever the precise camp conditions in the developing world, typi-
cally camps afford austere living conditions. 30 Moreover, camp inhabitants
enjoy an uncertain tenure for an unknowable length of time. These very
privations and uncertainties have provided an important guarantee of the
refugee bona fides of the inhabitants of the camp. Their willingness to endure
such conditions has allowed the world to assume, without much further
reflection, that the asylum seekers are genuinely desperate individuals, and
to conclude that that desperation justifies the specialness of the measures
they can now claim, whether that be material assistance or provision of quota
resettlement spaces. No one need doubt that the problems in the home
country were more than mere discomforts if these people were willing to
escape to such a bleak alternative - at least for the time being -just across
the border. 31 No one need hesitate, in short, to apply the powerful label
"refugee," with all the benefits that follow.
To put it another way, in the era ofborder-crossers, the difficulties of life
in a camp helped keep the two halves of the refugee paradox in rough
balance. The ironic privileges of relocation, assistance, and protection,
which are the due of refugees but do not attach to other migrants, come only
with unmistakable privations of an uncertain duration that remind of the
reasons why "refugee" became a special status in the first place.
When asylum seekers move directly to wealthier countries in the West, this
balance is upset. The individuals then might achieve (at least before the
recent introduction of deterrent measures) a situation that entails a host of
benefits, amenities and entitlements, even during the stage while their appli-
cations for asylum are pending. If that is the short-term prospect - rather
than a bleak existence of uncertain but perhaps indefinite duration in a
refugee camp - then obviously relocation provides a tempting option for a
much broader slice of the population in countries already suffering from a
variety of political and economic troubles. Western governments, in short,
feel that they are entitled to be suspicious about the refugee bona fides of
directly arriving asylum seekers in a way that need not trouble, for example,
Pakistan or Somalia. These suspicions are probably exaggerated when they
take the form of assumptions that the new asylum seekers had no good
reason for leaving home. But they may take a more acccurate form: that an
important percentage of those who now move directly are people who would
not have chosen to leave home, troublesome as their economic and political
 11

prospects might be there, if they thought they were moving to a camp in

Honduras or the Sudan rather than the greater benefits available in most
Western countries. The motives of these new asylum seekers, whatever their
deeper merit, do not carry the same connotation of specialness that built and
sustains the unique provisions for refugees, at least in the eyes of much of
the public in Western nations.
Refugee advocates are sometimes too ready to dismiss the new suspicions
as the outgrowth of xenophobia and racism in the West, and to act as though
it could all be remedied if only government officials had the courage to
confront such manifestations. To be sure, xenophobes and racists have
exploited the phenomenon for their own efforts at political gain. But it is not
enough, in the current climate, simply to denounce such movements and
argue for expansive new notions of who is entitled to refugee status. Xeno-
phobic movements find a wider audience among the general public now only
because the new phenomenon sparks real concerns and raises real questions
that hit home with the ordinary citizen. That is, it casts doubt on the
government's ability to retain a reasonable measure of deliberate control
over the entry and sojourn of foreigners. In this climate, prudent government
officials must do more than simply preach. They must also take action that
will allay the genuine concerns. Only then are they likely to deprive the
xenophobes of their wider audience.

IV.

In this newly difficult climate, essentially three options are open. Govern-
ment officials, international civil servants, refugee advocacy groups, and
academics alike need to take a hard look at all three.
First is the option that refugee advocates would clearly prefer, and if it
were politically achievable, it would have much to commend it. The public
might simply be persuaded that the new asylum seekers - a few outright
abusers and impostors aside - are as deserving of support and protection
and asylum as the old asylum seekers and quota refugees.
Sometimes advocates argue for this position on the basis of adjucators'
inability to judge the true motives and merits in the case of an asylum
applicant who has traveled so far. Other times the case is made on legal
grounds - that somehow the world has already decided, and embodied in
customary international law, that a wide circle of necessitous people is
entitled to the protections of refugee law even if they do not meet the classic
Convention refugee definition. 32 And sometimes the case is made on
philosophical grounds, arguing that the genuine needs of the poor, or of those
fleeing nations beset with armed conflict, are just as deserving of special
12

treatment as the needs of those who have a "well-founded fear of

persecution" in the classic and narrow sense. 33
But in the end this is not a battle of philosophers. It is a debate about what
publics in democratic societies are willing to accept as valid grounds for the
bestowal of a special set of entitlements that override the usual rules that
control immigration. It is not enough for the advocates of wider refugee
conceptions to win their points in international conferences attended by
scholars and refugee activists - or even government officials. The case
instead must be made in a way that convinces the publics in Western
societies. These nations, after all, are democracies. That fact itself contri-
butes toward making them attractive havens. But it also imposes a corollary.
Policy initiatives that will impose costs and difficulties on those publics in
a highly visible way must ultimately be grounded in a widespread public
acceptance of the need for that policy. Public opinion in the West is not now
persuaded that most oftoday's asylum seekers are in such jeopardy that they
merit special protections under expansive notions of who should qualify as
a refugee.
This leaves two other options. The second is to equip legal systems to do
the kind of checking of refugee bona fides that no longer comes effortlessly
through the dual filters of camps and distance. This second option requires
the capacity for prompt adjudication of asylum claims according to stan-
dards whose relative breadth or narrowness is widely accepted. Only with
that kind of consensus on standards will such implementation be possible,
both to welcome successful applicants promptly to a secure new status that
will enable them to start fully on a new life in a new homeland, and to assure
that governments can promptly deport those who do not qualify.
There is widespread verbal agreement on some elements of this second
approach. Everyone speaks in favor, for example, of quicker procedures
leading to definitive final decisions whether or not to grant asylum. But when
it comes time to trim a layer of review or appeal in service of this end, refugee
advocates often mobilize political pressure to block the change. 34 Similarly,
it has proven extremely difficult, particularly in Europe, actually to send
home unsuccessful applicants. Germany, for example, estimates that less
than 30 percent of those denied political asylum are actually removed. 35 A
variety of other ad hoc arrangements ultimately permit the rest to stay.
Perhaps this kind of stalemate stems from a fundamental public ambiva-
lence about the new asylum seekers. When the issue is viewed at large, the
public pressure for governments to do something to control the new phenom-
enon is intense, particularly in Europe. But when the time comes to imple-
ment an asylum denial by actually placing identifiable individuals aboard an
airplane for the trip home, the mood may shift as sympathy builds for the
persons involved. Newspapers and refugee activists join in publicizing the
 13

issue. Questions are then raised loudly (sometimes for good cause) about the
accuracy of the government's judgment denying the asylum claim or about
the stringency of the standards applied. Imminent removals of unsuccessful
asylum applicants usually become highly visible public events. And even if
the removals are quietly accepted by the bulk of the population, their accep-
tance does not count for as much politically as the intense objections voiced
by those who oppose such steps. As a result, actual deportations are politi-
cally costly to the officials who must implement them. Pressured by some
segments of the public to act to control asylum, they are nonetheless more
acutely pressured by other segments when they actually try to do so.
Caught in this dilemma, government officials are increasingly turning to
the third broad option for responding to the new phenomenon. They are
trying, in crude fashion, to rebuild barriers to the movements of asylum
seekers through restrictive practices and deterrents. And they are finding
that such barriers are usually consistent with domestic and international
refugee law- not with the spirit, perhaps, but with the letter. Refugee treaties,
so far, have to do with status and protection once an asylum seeker reaches
national territory. 36 They do not require a state party to facilitate arrival, nor
even to avoid impeding that arrival. Imposing visa requirements, or interdict-
ing boats on the high seas - and perhaps even arranging for a quick and dirty
screening of asylum claims at a designated border post or on the airplane
-are technically consistent with international refugee law. Moreover, refugee
law does not require full residence privileges for asylum seekers, particularly
in the pre-asylum stage. Denial of work permission, confinement to certain
areas, austere housing arrangements, even strict detention regimes, are argu-
ably permissible.
But more important to harried government officials are the political ad-
vantages that come from a successful scheme of barriers and deterrents. If
fewer asylum seekers arrive, then government officials are far less likely to
be caught in the political crossfire between alarmed restrictionists and vocal
refugee advocates. Fewer asylum seekers mean reduced expenses for sup-
port while adjudication proceeds. Fewer asylum seekers mean fewer oc-
casions for the inevitable frictions that result when persons try to establish
new homes for themselves in a foreign land. And above all, asylum seekers
who never reach the national territory cannot become a cause celebre with
refugee advocacy groups. Such asylum seekers cannot easily become the
focus of newspaper editorials, nor can they speak at rallies on their behalf
nor take up sanctuary in local churches.
14

v.
Because of these political advantages, at least in the current climate, all
signs point toward further refinements and expansions of the barriers
approach. But this is probably the worst of the three options, for a simple
reason: its effects are indiscriminate. They fall with equal weight on the
deserving and undeserving alike. Visa requirements are imposed by national-
ity; they do not readily yield up exceptions for "true" refugees. Austere
housing must be endured, sometimes for years, by those who should be
welcomed, as well as those who will ultimately be judged to have very thin,
or even fraudulent or abusive, claims to asylum.
It is a cruel irony that both governments and refugee advocates share in
the blame for this unfortunate result. Governments, of course, bear primary
responsibility, for responding to political difficulty with indiscriminate
measures. But the role of refugee advocates also merits reflection. In an
apparent effort to force governments to act as though the first option had
been adopted, they either argue for unrealistically broad categories of pro-
tection, or, more episodically, bring maximum pressure to bear on govern-
ments whenever a return is contemplated. Although well-intentioned, such
maximalism in tum makes it extremely difficult for governments to imple-
ment the second option. Consensus on realistic standards is impossible;
speedy procedures are thwarted; actual returns become politically costly. In
a futile attempt to force states to implement the first option (futile at least
in the current political climate), refugee advocates make it virtually impossi-
ble for states to implement the second. In default, Western nations tumble
into the third and worst option. This trend, if it continues, will mock the
elaborate and highly protective refugee schemes that exist on paper.
Iftni-. vicious cycle is to be broken, perhaps the initiative will have to come
from refugee advocates and the UNHCR. Some retreat from maximalist
positions will be necessary to create the climate for a fully effective imple-
mentation of the optimal solution: implementation of a quick but fair adjudi-
cation procedure followed by prompt removal of those held not to qualify.
If this second option is to be revived, refugee advocates may have to learn
to accept a narrower conception than they would wish of the category of
persons who are legally entitled to protection. 37 This reduced ambition may
be necessary to alleviate public fears about unmanageable numbers and
thereby to conserve the political capacity to protect the most severely
jeopardized of the new asylum seekers. Political asylum will have to be seen
as a limited tool, usable as a response to some situations of human rights
violations and abuses, but unable to provide a major part of the answer to
war, violence, and poverty throughout the world. (If energies can be devoted
 15

instead to finding other sorts of solution through vigorous human rights

diplomacy, all the better.)
But this scenario would also demand much of governments. In return for
greater understanding or cooperation from the refugee advocacy community,
governments will have to devote adequate resources toward developing a
truly fair and effective adjudication system. The virtue of the second option,
in theory at least, is that it selects out those who are most seriously endanger-
ed and gives them the protection that comes with a durable asylum status
in a stable Western nation. Meantime it permits governments to calm the
wider public by sending home those whose claims are less meritorious. But
none of this supposed advantage exists unless the public and the asylum
seekers can count on the system to do a high quality, professional, well-
informed job of sorting the meritorious from the undeserving. This adjudi-
cation function cannot be assigned to airport police. It cannot be done in
haste while applicants are held at a border post. It cannot be done part-time
by functionaries whose primary duties cover other matters and who may
scarcely have heard of the distant nations from which the applicants come.
Instead, the job must be done by genuine experts knowledgeable about
conditions in the applicant's home country. Governments will have to assure
adequate staffing by well-trained professionals. As an added guaranty of
accuracy, there should be carefully designed avenues for review or appeal-
although in the interests of prompt finality, multiple layers should be avoid-
ed.

* * *
High Commissioner Hartling, in the passage that opened this essay, said
he knew of "no easy solution to this growing problem of intercontinental
jet-age asylum seekers." The solution sketched here is hardly easy. It de-
mands much of both refugee advocates and of governments, in an effort to
break the unfortunate cycle of restriction and deterrence in which the West
now seems to be caught. But perhaps it is precisely UNHCR's function to
lead the way toward difficult but necessary solutions - solutions that may
promise less in the way of humanitarian self-congratulation, but more in the
way of secure protection for those among the new asylum seekers most
genuinely in danger.
16

NOTES

1. Report of the Executive Comm. of the High Commissioner's Programme (35th Sess.),
Annex at 2, U.N. Doc. A/AC.96/6Sl (1984).
2. Statute of the Office ofthe United Nations High Commissioner for Refugees (UNHCR),
G.A. Res. 428 Annex, S U.N. GAOR Supp. (No. 20), U.N.Doc. A/1775 (1950).
3. Convention relating to the Status of Refugees, opened for signature July 28, 1951, 189
U.N.T.S. 137, reprinted in 19 U.S.T. 6259, T.I.A.S. No. 6577. The original Convention
limited its definition of refugee to those who were outside their home countries owing to
a well-founded fear of persecution as a result of events occurring before January 1, 1951,
id. Art. l(A)(2) - a strong sign that the participating governments were not prepared to
take on open-ended obligations for the indefinite future. By 1967, this concern had
diminished, and a Protocol to the Convention was drafted removing the dateline limi-
tation and thus converting the treaty to one with more universal scope. Protocol relating
to the Status of Refugees, done Jan. 31, 1967,606 U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S.
No. 6577. The Protocol has now been accepted by nearly all parties to the Convention.
4. I paint with a broad brush, ignoring certain qualifications and exceptions that will occur
to anyone familiar with the details of refugee programs over the last four decades. But
it is useful to take a step back from the details, lest controversies over specific issues
obscure lessons that can be derived from attending to the larger patterns in the evolution
of refugee doctrine and practice.
S. Those five are Australia (1954), Ecuador (1955), Israel (1954), Morocco (1956), and
Tunisia ( 1957). The latter two became parties derivatively, through state succession when
they achieved their independence from France. Centre for Human Rights (Geneva),
Human Rights: Status oflnternational Instruments 267-70, U.N. Doc. ST/HR/5 (1987).
6. These developments are usefully summarized in the Hague Lectures delivered by the then
High Commissioner: Sadruddin Aga Khan, Legal Problems Relating to Refugees and
Displaced Persons, 1976 (I) Recueil des Cours 287, 301-09. A far more detailed account
appears in L. Holborn, Refugees: A Problem of Our Time (1975).
7. See Sadruddin Aga Khan, supra note 6, at 339-49. A related development in 1969 served
a similar end, when the Organization of African Unity adopted a refugee treaty with an
expanded definition. That definition includes both refugees in the sense of the UN
Convention and Protocol, and also those forced to leave their home countries "owing to
external aggression, occupation, foreign domination or events seriously disturbing public
order ..." OAU Convention Governing the Specific Aspects of Refugee Problems in
Mrica, done Sept. 10, 1969, art. I, 1001 U.N.T.S. 45.
8. See, e.g., G. Loescher & J. Scanlan, Calculated Kindness: Refugees and America's
Half-Open Door, 1945-Present 102-146 (1986).
9. Since World War II, North Americans have traditionally thought of refugee programs as
virtually synonymous with quota refugee efforts, often called - revealingly - "overseas
refugee programs." See, e.g., Meissner, Reflections on the Refugee Act of 1980, this
volume. But one abiding exception from the second period-the 1960s and 1970s- exists,
although in the end it should probably be seen as reinforcing the basic pattern. Since Fidel
Castro came to power in Cuba, thousands of Cubans have come directly, with American
encouragement, to the United States, where they were offered indefinite resettlement
opportunities under a variety of bureaucratic innovations. See, e.g., Loescher & Scanlan,
supra note 8, at 61-78. But because Cuba was a "Communist or Communist-dominated
country" (the phrase used in the major statutes of the era governing U.S. quota refugee
programs), this flow fit rather easily within the governing Cold War assumptions inherited
from the first, Europe-centered, period and still being implemented through the tradition-
 17

a! quota refugee programs. Moreover, the virtual American invitation to all Cubans did
not appear, until the Marie! boatlift of 1980, to bode unmanageable numbers, largely
because of the emigration controls imposed by the Cuban government itself. See id. at
70. For these reasons, the Cuban refugee program simply was not generally seen, during
the 1960s and 1970s, to open a second, and decidedly different, "asylum" branch of
refugee law and practice.
10. The flow from Cuba to the United States throughout the 1960s and early 1970s similarly
had not been seen as a challenge to deliberate controls over migration. See note 9 supra.
11. See Martin, The Refugee Act of 1980: Its Past and Future, in Transnational Legal
Problems of Refugees, 1982 Mich. Y.B. Int'l L. Stud. 91; Meissner, Reflections on the
Refugee Act of 1980, this volume.
12. See, e.g., Jaeger, Irregular Movements: The Concept and Possible Solutions, this volume;
Rudge, Fortress Europe, in World Refugee Survey: 1986 in Review, at 5 (1987); Come
for Asylum, Go into Orbit, The Economist, Aprill8, 1987, at 41; Facing a Rising Tide
of Refugees, Western Europe Bails Out as Haven, Int'l Herald Tribune, April 2, 1987,
at 1; Europe: Hardening Attitudes on Asylum Issue, Refugees, Dec. 1987, at 32;
Denmark: Knocking on Raven's Door, id., June 1987, at 9; Interview with Peter Arbenz,
Delegate for Refugee Affairs, [Swiss] Federal Department of Justice and Police, id., Jan.
1987, at 41; Switzerland: The Right of Asylum: Stormy Debate, id. at 11.
13. Naturally this was not a complete substitution. Quota refugee programs for Indochinese
continue today, with waning enthusiasm. Perhaps the preoccupation with direct arrivals
accounts in some measure for that decline in support. See generally den Hond, "Jet-Age
Refugees": In Search of Balance and Cooperation, this volume (discussing disruption of
former "division of labor" in refugee solutions).
14. See, e.g., Teitelbaum, Political Asylum in Theory and Practice, 76 Pub. Int. 74,79 (1984).
15. Beginning in 1973 and 1974, when the "oil shock" signaled increasing unemployment and
other economic difficulties for Western Europe, most European nations ended their
previous extensive programs for the importation of"guest workers." Most expected that
earlier guest workers would then return to their homelands. When many did not,
European countries adopted a variety of other strategies for encouraging return and at
least minimizing further arrivals. See generally, e.g., M. Miller & P. Martin, Administering
Foreign Worker Programs: Lessons from Europe (1982); Castles, The Guests Who
Stayed- the Debate on "Foreigners Policy" in the German Federal Republic, 19 Int'l
Migration Rev. 517 (1985). Some commentators attribute at least a part of the rise in
asylum seekers in Europe to the closing of these other avenues for migration. See, e.g.,
Teitelbaum, supra note 14, at 79; Grahl-Madsen, Refugees and Refugee Law in a World
in Transition, in Transnational Legal Problems, supra note 11, at 65, 66. See generally
Rudge, supra note 12, at 6.
16. See sources cited supra note 12. For a summary listing of those measures, along with
sharp criticism, provided by a meeting of representatives of private voluntary organi-
zations concerned about refugees, see Second European Assizes on the Right of Asylum,
Refugees, May 1987, at 11.
17. See, e.g., United Kingdom: Turbulent Passage for Carriers' Bill, Refugees, July 1987, at
15; Airlines on Collision Course, id., at 17. Belgium has also made provision for requiring
airline personnel to collect passports of passengers for the duration of the flight, in order
to counter a widespread practice of document destruction by asylum seekers who appar-
ently hope to complicate the process of tracing their path to the European asylum country.
See id; Belgium: Controversial Reform, id., May 1987, at 13.
18. See Denmark: Knocking on Raven's Door, Refugees, June 1987, at 9, 10.
18

19. See T. Aleinikoff & D. Martin, Immigration: Process and Policy 724-26 (1985). The
governing orders do state that persons who appear to have genuine reasons to fear return
are not to be repatriated, and Immigration Service agents are stationed aboard the Coast
Guard vessels assigned to interdiction duty to provide the necessary screening. But only
a tiny number of persons have been brought on to the United States for further review
of a refugee claim under these provisions.
20. See, e.g., Belgium: Controversial Reform, Refugees, May 1987, at 13; Switzerland Revises
its Law on Asylum, id., at 17.
21. See Aleinikoff & Martin, supra note 19, at 720-24; Interview with David Waddington,
Minister of State at the Home Office [United Kingdom], Refugees, June 1987, at 41.
22. See Aleinikoff, Political Asylum in the Federal Republic of Germany and the Republic
of France: Lessons for the United States, 17 U. Mich. J.L. Ref. 183, 201-03 (1984)
(describing German communal housing facilities); Denmark: Knocking on Raven's Door,
Refugees, June 1987, at 9; Rudge, supra note 12, at 8.
23. See, e.g., Sri Lankans' Tale ofJourney Continues to Baffte Canadians, Wash. Post, Aug.
14, 1986, at AI; Canada Charges Ship's Captain, id., Sept. 11, 1986, at A36; When
Strangers Appear, Christian Science Monitor, Aug. 21, 1987, at 17.
24. Efforts under this rubric are amply described by two contributors to this volume who have
played a significant role in UN deliberations on the subject: Jaeger, Irregular Movements:
The Concept and Possible Solutions; den Hond, "Jet-Age Refugees": In Search of
Balance and Cooperation.
25. Their cultural similarities also made for easier integration into the host societies of the
West, thereby reducing the occasions for public controversy over perceived burdens
deriving from their presence. Today's asylum seekers, coming from distant continents,
often find a more difficult personal transition. Moreover, their differences also provoke
ugly xenophobic or racist reactions on the part of some of the citizens in the host
countries.
Cuba again might seem an exception to the generalization in the text. But that
government's restraints on exit (although more erratic and often less restrictive than those
affecting refugees from Eastern Europe) operated to reduce public concerns in the United
States about Cubans who arrived directly on U.S. shores during the 1960s and 1970s. See
note 9 supra.
26. Technically, of course, most Western governments do not guarantee asylum, nor are they
obligated to do so under the UN Convention and Protocol, supra note 3. See, e.g., G.
Goodwin-Gill, The Refugee in International Law 101-23 (1983). The ample benefits and
entitlements outlined in most of the articles of the Convention apply only to refugees
"lawfully in" or "lawfully staying in" the contracting state. Nearly all asylum seekers today
run afoul of the regular provisions of immigration or aliens law; mere recognition as a
refugee does not render one's presence lawful. But one important protection, the
guarantee of nonrefoulement under Article 33 of the Convention and comparable pro-
visions of national law, applies irrespective of illegal presence. Under this provision, a
contracting state is theoretically free to send the refugee to a nonthreatening third state.
But in practice, wealthy Western nations almost never receive permission to send refugees
to third countries.
Recognizing this reality, most Western governments for many years have readily granted
full and durable asylum to those who are judged to have valid claims to refugee status
(and indeed, to others who are judged worthy of protection against forced return to the
homeland), with little further ado. This practice therefore has resulted in a de facto
guarantee of asylum to those who reach the country and demonstrate that they are
refugees or otherwise embraced within the nonrefou/ement principle. Although Goodwin-
 19

Gill argues in his paper in this volume that it is "a mistake to make the leap from
nonrefoulement to asylum," Western states, to their credit, have been doing this for years.
This leap has in fact served as one of the finest and most commendable elements of the
Western refugee tradition, because it permits a refugee to start fashioning a new life in
a new homeland on the basis of a secure legal status, whatever his mode of arrival in the
asylum country. Unfortunately, even this worthy tradition is beginning to erode, as
governments seek additional ways to respond to the phenomenon of the new asylum
seeker.
27. I am indebted to Professor Astri Suhrke for this way of phrasing the point. See generally
Suhrke, Global Refugee Movements and Strategies ofResponse, in U.S. Immigration and
Refugee Policy: Global and Domestic Issues 157 (M. Kritz ed. 1983).
28. See Zolberg, Contemporary Transnational Migrations in Historical Perspective: Patterns
and Dilemmas, in id. at 15, 35.
29. For this reason, this volume refers to the current developments under the label of"the
new asylum seekers," rather than immediately applying the term "refugee" (as is some-
times done, see, e.g., A. Paludan, The New Refugees in Europe (IUEF 1974)). Although
many of the persons involved may well deserve recognition as refugees, under the 1951
definition or some broader conception, the political difficulties arise precisely because the
public today does not readily accept that their plight is sufficiently special to call forth
the more protective label and its operational consequences.
30. Similarly, even those Third World border-crossers not required by the host government
to live in camps typically survive under difficult and straitened conditions.
31. As massive programs for further resettlement to distant countries become well establish-
ed, however, some of this screening function of camps erodes. Several commentators have
suggested that this happened with the flow of refugees from Vietnam, once the West
responded with the massive quota resettlement programs of the late 1970s. See, e.g.,
Meissner, Reflections on the Refugee Act of 1980, this volume; Suhrke, A New Look at
America's Refugee Policy, 10 Indochina Issues 1 (Sept. 1980).
32. That position is well represented in this volume, in the contributions by Joan Fitzpatrick
Hartman and Guy Goodwin-Gill. Kay Hailbronner, however, strongly challenges many
of the claims the first two make about the current development of customary international
law.
33. See, e.g., Schacknove, Who is a Refugee?, 95 Ethics 274 (1985); Note, Political Legitimacy
in the Law of Political Asylum, 99 Harv. L. Rev. 450,459-64 ( 1985). See generally Suhrke,
supra note 27, at 161-62 (describing efforts to build a definition of refugee based on the
concept of need).
34. America's experience with proposed new asylum regulations in fall1987 provides a telling
example of this phenomenon. Currently asylum applicants may have their claims heard
first by a district director of the Immigration and Naturalization Service (INS), and then,
if unsuccessful, may receive de novo consideration of the claim by an immigration judge.
Thereafter, appeals may be filed with the Board of Immigration Appeals (BIA). The
scheme thus permits a total of three layers of administrative consideration, followed then
by judicial review. The new regulations proposed to consolidate all initial asylum adjudi-
cations in a new unit of the INS Central Office, consisting of a corps of trained asylum
officers; it thus removed from the process both the district directors and the immigration
judges, but not the BIA appeal. 52 Fed. Reg. 32552 (Aug. 28, 1987). This reduction to
two levels of administrative consideration might have meant some real gain in efficiency,
leading to speedier final decisions. Certain other elements of the proposal prompted
legitimate concerns on the part of the refugee advocacy community. But instead of
focusing their comments on ways to improve the fairness and reliability of the asylum
20
officers' decisions (for example by better provisions for the training and recruitment so
as to improve the professionalism and quality of those initial decisions), refugee advocates
targeted their complaints on the scheme's elimination of a role for the immigration judges.
In the face of that criticism, the Justice Department capitulated and has promised to
restore the role of the immigration judges, thus leaving in place a more cumbersome
three-tier administrative system. 52 Fed. Reg. 46776 (Dec. 10, 1987).
35. See Asylrecht: Gegen die Flut, Der Spiegel, 30 Jun. 1986, at 28. Other European countries
have been equally ineffective in securing the actual removal of persons denied asylum.
See Rudge, supra note 12, at 8; Aleinikoff, supra note 22, at 222-23.
36. The OAU Convention, supra note 7, provides a partial exception to this generalization,
but the Western nations discussed here are not parties to this treaty.
37. I do not consider here just what that standard should be, although I am inclined to believe
that a somewhat narrow understanding ofthe classic Convention definition would serve
well. See generally Martin, supra note 11, at 112-13. It has the added advantage of being
the definition to which most states have formally adhered by treaty, thus avoiding
relegation to the uncertainties of customary law.
 I

JET AGE REFUGEES

IRREGULAR MOVEMENTS
AND
GOVERNMENT RESPONSES
 IRREGULAR MOVEMENTS: THE CONCEPT AND POSSIBLE
SOLUTIONS

GILBERT JAEGER

"Irregular movement" of asylum seekers is a very recent concept. It

belongs to the realm of international refugee policy rather than international
refugee law, and it is a notion that must be treated carefully. I was asked by
the UN High Commissioner for Refugees in 1984 to undertake a study of
the concept, in response to an initiative by Canada taken in the Executive
Committee of the High Commissioner's Programme that year. Canada, like
many other industrialized countries, found itself troubled by arrivals of
numerous asylum seekers from distant continents, in a fashion that it had
not earlier encountered and which it regarded as irregular. It sought the help
of the international community in developing new ways to deal with some
of the attendant problems. Hence my Study. 1
The Study was presented to the Executive Committee at its session in
1985,2 but consensus could not be reached on a proposed Conclusion on the
topic. Brief reference was made to irregular movements, however, in the
general Conclusion adopted that year. 3 The topic was also mentioned briefly
during the Executive Committee meetings in 1986, but the new High Com-
missioner suggested that further work on a Conclusion might be delayed
until "a later stage," after "experience gained in dealing with specific refugee
movements" permitted further evolution of humane doctrine. 4 The subject
of irregular movements was again mentioned during the thirty-eighth session
of the Executive Committee in October 1987. 5 In what follows, I retrace
some of the ground covered in my lengthier Study,6 in the hope of promoting
wider consideration of these matters and the collection of useful experience.

I. THE CONCEPT OF IRREGULAR MOVEMENTS

The movement between countries of an asylum seeker- a bonafide asylum

seeker - is irregular by its very nature, as he or she travels under duress, for
fear of persecution. "Irregular movement" must therefore have some more
precise definition, lest it simply include all movements of asylum seekers.

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
24

One could provide the added precision by defining "irregular movements"

as movements which are undertaken by asylum seekers or refugees after they
have fled from the country where they fear persecution and which do not
follow the pattern of movement expected - rightly or wrongly - by the
international community. Let us begin with this as a tentative working
definition, and we shall refine the concept as we proceed.

A. Categories of movements
In order to avoid analyzing a policy concept merely from a semantical
point of view, it is necessary to review the various movements which an
asylum seeker could undertake. A basic distinction should be made between
authorized movements and spontaneous, unscheduled movements.
Authorized movements may include normal travel for business, family
visits, or movement for resettlement purposes. They also include some direct
movements to or from the country of nationality or habitual residence:
orderly departure (such as travel under the program that has enabled people
to move directly from Vietnam, with the approval of the Vietnamese govern-
ment, over the past several years), family reunification, or voluntary repa-
triation to such a country, whether on an individual basis or within the
framework of an organized movement. Authorized movements are by defini-
tion "regular" and need not be further examined for our present purposes.
Irregular movements, if any, should be found among spontaneous, un-
scheduled movements of asylum seekers and refugees. These may include:
( 1) direct arrival of the asylum seeker in a country immediately neighboring
the country where he or she fears persecution; (2) direct arrival after over-
flying other countries or after transiting through one or more intermediate
countries; (3) arrival, for resettlement purposes or otherwise, after a sojourn
of some length in one or more countries where the asylum seeker had been
given neither protection nor asylum; (4) spontaneous repatriation.
On further analysis, however, none of categories thus far listed should be
counted as "irregular" for our purposes, at least if that term carries any
pejorative connotation. In conformity with a very basic principle of refugee
law, i.e., the principle of asylum, direct arrival from the country where
persecution is feared, including direct arrival after some kind of transit,
should not be considered an irregular movement. (Our tentative definition
above takes account of this by referring to movement after the original flight.)
On account of the same fundamental principle, arrivals of unprotected
asylum seekers (i.e., asylum seekers who have been given neither protection
nor asylum in another country) should not be considered irregular. Finally
it should run contrary to the (almost) universally accepted view that volunta-
 25

ry repatriation is the best solution to a refugee problem if spontaneous

repatriation were to be seen as an irregular movement.
In accordance with this very succinct analysis, the concept of "irregular
movements" should apply only to spontaneous, unauthorized, unscheduled
arrivals of protected asylum seekers or refugees. That is, "irregular move-
ments" consist of asylum seekers who have been given some kind of pro-
tection or asylum in another country but still move on in unauthorized or
unscheduled fashion. We shall consider later the difficulties in determining
just what constitutes "protection" for these purposes.
Immigration authorities who developed this concept base it on the view
that asylum seekers who have been given protection or asylum should
comply with international travel regulations from that point on, particularly
as regards travel documents and visa requirements. Specifically, if they wish
to seek (second or third) asylum in country C for resettlement purposes, they
should not "jump the queue" of those already waiting for resettlement in
country C by traveling directly and applying for asylum once within C. In
this view they should instead comply with orderly procedures for securing
approved resettlement there. If approval comes, of course, they may then
undertake a "regular movement" to country C for resettlement.

B. Difficulties in applying the concept

The concept of"irregular movements" is not easily applicable in practice,
for a number of reasons: (1) the interference in refugee movements of a
non-refugee category of travellers; (2) the increasing problem of personal
documentation; (3) the lack of solution to the problem of "refugees in orbit";
(4) interferences between the phenomena of "irregular movements" and
"extraregional arrivals"; and (5) the divergence of views between jurists,
courts and States on such basic concepts as "protection" and "asylum."

1. Manifestly unfounded or abusive applications

An asylum seeker may or may not be a refugee according to the criteria
defined by the 1951 Convention and the 1967 Protocol relating to the Status
of Refugees. 7 Any legal instrument of this kind naturally requires determi-
nation procedures to decide exactly who is entitled to its protections and
benefits. 8 A negative determination on the ultimate question of refugee status
does not necessarily reflect on the bona .fides of the alien seeking recognition
as a refugee, however. He may have applied for asylum in good faith,
believing fully that he met the legal requirements, or his case may present
many understandable and sympathetic features, even though it does not fall
within the exact requirements of the Convention and Protocol.
26

In recent years, however, States have noted that an increasing number of

aliens requesting asylum at their border or after having entered their territory
were not bona fide asylum seekers at all, even in this sense. Instead States
have encountered numerous aliens submitting manifestly unfounded or abu-
sive applications for the grant of asylum or recognition of refugee status. The
assumption is that these aliens are trying to circumvent normal immigration
rules and regulations by claiming the benefit of asylum.
The Executive Committee of the High Commissioner's Programme has
considered this problem, particularly at its session in October 1983, when
it adopted Conclusion No. 30(XXXIV) on "The Problem of Manifestly
Unfounded or Abusive Applications for Refugee Status or Asylum." Ac-
cording to the Executive Committee, "clearly abusive" or "manifestly
unfounded" applications "are to be defined as those which are clearly
fraudulent or not related to the criteria for the granting9 of refugee status laid
down in the 1951 United Nations Convention relating to the Status of
Refugees nor to any other criteria justifying the granting of asylum." 10 The
executive Committee "recognized the substantive character of a decision
that an application for refugee status is manifestly unfounded or abusive"
and agreed, finally, that such an application would have to be dealt with in
a manner not essentially different from the procedure used for handling
normal applications for asylum or refugee status. 11
By definition aliens who submit manifestly unfounded or abusive requests
are not refugees and will not be recognized as refugees. They are migrants
who have to be handled within a refugee context because they have chosen
to circumvent immigration policies and immigration rules by alleging fear of
persecution. Although - or perhaps because - they are not refugees, they
create an "irregular movement" par excellence.

2. Documents
The sense of bureaucracy has probably infiltrated the genetic pattern of
the contemporary human being. Few aspects of refugee movements seem to
irritate more than the fact that many asylum seekers carry false documents
or no documents whatsoever. It is an irritation that affects not only immi-
gration officers and other authorities but also the public at large - at least
in industrialized countries. The attitude was not very different in the begin-
ning of this century: the very purpose of the first international treaty relating
to refugees was to issue a "certificate of identity" to serve as a refugee travel
document. 12 Quite obviously, the asylum seeker cannot be expected to carry
the travel document required - or, for that matter, any kind of document -
on his original flight. This is reflected in Article 31(1) of the 1951 Con-
vention:
 27

The Contracting States shall not impose penalties, on account of

their illegal entry or presence, on refugees who, coming directly from a
territory where their life or freedom was threatened in the sense of
Article 1, enter or are present in their territory without authorization,
provided they present themselves without delay to the authorities and
show good cause for their illegal entry or presence. 13

In this respect, an asylum seeker's lack of documents (or possession of

false documents) is hardly a problem from the point of view of international
refugee law, provided the person concerned is a bona fide asylum seeker. (If,
however, the asylum seeker arrives not directly but only after transiting
through an intermediate country, he may perhaps be expected to carry some
kind of document issued in or by the country of transit.)
In municipal law the attitude of tribunals differs from country to country.
Case law in, e.g., the Federal Republic of Germany is very much in line with
international refugee law: asylum seekers or refugees arriving with false or
fraudulent documents are relieved of penalties if they are considered to have
arrived "directly" and provided they declare the use of such documents upon
entry. But in other countries the use of false or fraudulent documents may
be a genuine obstacle to the grant of asylum. In the United States the Board
oflmmigration Appeals has asserted that "attempting entry into the United
States by way of fraudulently obtained documentation has consistently been
considered a strong negative discretionary factor" with respect to the dis-
cretionary power of the Attorney General to grant asylum. 14 In a number
of countries, use of false or fraudulent documents may be a cause for
(sometimes protracted) detention. 15
The practice that irritates appears to be on the increase. Governments
increasingly encounter asylum seekers who use false or fraudulent docu-
ments or who hide or wilfully destroy documents before their first encounter
with the authorities of a country where they plan to seek asylum. In some
instances the alien apparently hopes to make it difficult for the authorities
to establish his identity and perhaps also to prevent tracing any intermediate
countries through which he may have passed. The alien may resort to such
practices in order to elude or circumvent immigration rules and regulations,
and often these practices - perhaps in a majority of cases - are supportive
of mala fide applications, many of them manifestly unfounded or abusive.
But there is no necessary connection here. The alien may also be a bona fide
but ill-advised asylum seeker or refugee. This fact obviously compounds the
difficulty of separating "regular" from "irregular" movements ; documents
alone cannot be the distinguishing factor.
28

3. Refugees "in orbit"

This aspect of the contemporary refugee question is officially referred to
as the problem of "refugees without an asylum country." 16 It derives from
the efforts of governments to assert that some other country bears the
primary responsibility for considering the asylum request, thus decreasing
the number of persons to whom the first government would have to grant
asylum. Take the case of an alien who fled country A some months ago and
eventually appears in country C where he applies for asylum. In the interim
he has spent a period of sojourn or transit in country B. Country C is likely
to assert that it is not the "country offrrst asylum"; that it therefore should
not examine the application in any substantive manner; and that the alien
should instead apply to the authorities of country B, which is (according to
the government of C) the actual "country offrrst asylum." If, however, the
authorities of B also take the view that they have no business with the case,
the asylum seeker may be sent from place to place, from airport to airport
(hence the phrase "in orbit"), but to no avail.
The problem of refugees in orbit has been examined by the Executive
Committee which has formulated recommendations to States. 17 A regional
agreement, meant to specify which country in such circumstances bears
responsibility for considering the asylum request, reportedly was negotiated
under the auspices of the Council of Europe, but final acceptance by govern-
ments could not be concluded. 18 Meanwhile, the risk of being pushed into
orbit may induce some asylum seekers to take up doubtful practices such as
the hiding or destruction of travel documents or the use of false documents
believed helpful in finding a country of asylum. The lack of international
cooperation on this issue may therefore exacerbate the phenomenon of
irregular movements.

4. Extra-regional arrivals
Traditionally refugees have fled to a neighbouring country where they have
found some kind of asylum or at least some shelter. This is still the case in
several continents, particularly Africa, Asia, and Latin America, where
refugees originate from and find asylum in developing or semideveloping
countries.
As regards the industrialized countries of North America, Europe and
Oceania, however, the position has been somewhat different from the outset
of the modem refugee flows, i.e., from the early part of the twentieth century.
The participants in the first "massive exoduses," from the Ottoman Empire
and from the transformation of the Russian Empire into the USSR, scatter-
ed world-wide, particularly during the period 1915-1925. Those refugees
 29

were given durable asylum to a large extent in the industrialized countries.

Refugees fleeing dictatorial and totalitarian regimes, particularly in Europe,
in the 1920s, 1930s, and 1940s, were also ~anted asylum mainly in the
industrialized world. Those who went to the Americas or Oceania were not
specifically perceived as extra-regional arrivals inasmuch as they belonged
to the same ethno-cultural groups as other immigrants. 19
In recent years, however, particularly in the 1980s, the proportion of
asylum seekers arriving in industrialized countries from outside the region
concerned has increased sharply, reaching 70 per cent of all unscheduled
arrivals, and up to 87 or 88 per cent in some European countries (1984
figures). The overwhelming majority of these extra-regional arrivals came
from developing (or semi-developing) countries, either directly from the
country where they claimed to fear persecution or from "countries of transit"
where protection was believed insufficient or was simply not available. By
the same token, the majority of practices considered loosely by governments
to be "irregular movements" (because of claims determined to be manifestly
unfounded or abusive or because high proportions of the migrants are found
to carry fraudulent documents or no documents) are to be discovered in the
same groups of extra-regional arrivals. 20
The negative reaction to extra-regional arrivals in industrialized countries
is composed of several elements: ( 1) a revival of xenophobia fanned specifi-
cally by the employment crisis of the latter eight to ten years; (2) the
perception, also by the public at large, that a proportion of extra-regional
asylum seekers are merely unauthorized immigrants; (3) the awareness that
it will be difficult to absorb people of a different ethnic and cultural
background.

5. Protection? Asylum?
The factors mentioned above all relate to practical difficulties that may
induce governments to regard a wide variety of migration phenomena as
irregular movements. But there remains one other factor constituting a
crucial conceptual or definitional element. In order to determine whether an
asylum seeker's movement is irregular under the criteria set forth above, it
is of paramount importance to assess whether the asylum seeker was or was
not protected in the country from which he departed. (This country is by
definition not the country where he fears persecution; it is instead some other
country in which he spent some period oftime. 21 ) It is equally important to
assess whether, beyond mere protection, the asylum seeker had been granted
asylum in that other country.
It may be in order to quote the following paragraphs from my Study:
30

According to current practice of States and current terminology, an

asylum seeker permitted to enter the territory of a State may expect to
receive one of the following kinds of treatment:
[ 1] shelter, without any conditions, benefits or appropriate legal
status attached to it;
[2] shelter and protection against refoulement (in the meaning of
Article 33 of the 1951 Convention, i.e., against forcible return "to
the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, member-
ship of a particular social group or political opinion");
[3] temporary asylum; 22
[4] durable asylum.2 3
The asylum seeker may also be recognised de jure or considered de
facto as a refugee... While there is an obvious connection between
asylum and refugee status, it must also be emphasised that the recog-
nition of refugee status does not necessarily entail the grant of asylum.
Specifically, it is not associated in all cases with the grant of durable
asylum. In this part of the present analysis it is more important to assess
the kind of protection or asylum that has been given than to investigate
whether the p.erson concerned has been recognised or considered as a
refugee. 24

Although mere shelter obviously falls short of any meaningful concept of

"protection," some governments would argue that asylum seekers in a
situation of shelter, at least if it is accompanied by a guarantee of nonrefoule-
ment (item 2 in the list above), should wait for regular documentation, entry
visas, resettlement visas, or other forms of authorization before moving on
to a further country in quest of asylum. If that view is taken, any spontaneous
onward movement by one who enjoys such shelter is "irregular." In other
countries, however, courts have taken a diametrically opposed view, holding
that even a formal grant of asylum does not necessarily provide sufficient
protection. For example, a German Court has ruled:

[T]here can be protection in another country only if the conditions of

life in that country satisfy at least such human dignity as is according
to (our) Constitutional Law "unrenounceably" (unverzichtbar) inherent
in each human being, i.e. they should allow for a minimal measure of
free personality development, in the meaning of determination of a
person's own life and of framing a person's own environment. 25
 31

In a majority of industrialized countries, law and jurisprudence fall

between these two extremes.26 These divergences complicate enormously
the effort to identify irregular movements of asylum seekers, because the
concept depends directly on which of the four types of accommodation
(listed above) constitutes "protection." This point is absolutely crucial.
There will not be a universally accepted understanding of which movements
are irregular until there is agreement on the level oflegal accommodation that
amounts to "protection" in the other country. Obviously, the further down
the list one moves in setting standards, the less likely one is to find that
treatment in the other State constituted "protection" - with the result that
fewer onward movements would be considered irregular.

C. Numbers
Figures have always been an elusive aspect of the problem of asylum
seekers and refugees. Quite obviously, the difficulties are increased if one
attempts to assess the numbers of asylum seekers or refugees engaged in
"irregular movements." I have summed up my research on numbers as
follows:

The very scanty statistical material leads to the following approxi-

mate assessment of irregular movements:
- Asylum seekers who have made manifestly unfounded or abusive
claims represented in 1984 an estimated 10 per cent to 15 per cent
of unscheduled arrivals in industrialized countries.
- The percentage of unscheduled asylum seekers who arrived, after
transit, without documents or with fraudulent documents, reached in
1984 a figure of 20 to 25 per cent, with higher proportions (up to 50
per cent) in specific countries.
- Asylum seekers who arrived without prior authorization after transit-
ing for more than 30 days through countries of potential protection
would represent insignificant proportions of all arrivals.
- The above three aspects of irregular movements are not cumulative;
they overlap to a very large extent. A very tentative estimate would
put the global proportion of irregular movements in the range of 20
to 30 per cent of all unscheduled arrivals, with distinctly higher figures
(50 per cent or more) in specific countries, specific years, etc.
The above findings relate to industrialized countries, the only ones
for which indicative statistical material is available. On the basis of
[available information] the following rough estimate can be made for
1983:
32

Irregular
All Arrivals Movements
Industrialized countries 104000 25000
Other countries 1168000
World total 1272000
The number of irregular movements towards industrialized countries
was in all likelihood higher in 1984. On the one hand, the total number
of asylum seekers had risen to an estimated 140,000 and furthermore,
phenomena such as hiding or destruction of travel documents seem also
to be on the increase ...
The problem of irregular movements is certainly not limited to indus-
trialized countries. We have, however, no numerical indications as of
now concerning non-industrialized, developing countries. On the other
hand the overwhelming majority of asylum seekers admitted on the
territory of developing countries in Mrica, Asia and Latin America are
direct asylum seekers from neighbouring countries. The writer is tempt-
ed to believe, therefore, that the incidence of irregular movements is
statistically not significant outside the industrialized world. 27

II. POSSIBLE SOLUTIONS

A. Overall numbers
The attitude of governments of industrialized countries with respect to
irregular movements cannot be separated from their reaction to the increase
in the number of aliens seeking asylum in their territory. This increase has
been particularly noticeable in Western Europe:

Western Canada
Year Europe and USA

1976 20600
1977 29900
1978 49400
1979 77600
1980 158 500
1981 116500 60300
1982 80700 37400
1983 67000 32100
1984 103 500 30900
1985 169600
1986 204300
 33

On a world-wide scale, however, these figures are not necessarily impres-

sive.28 In 1983, the new asylum seekers represented 14 for 100,000 inhabi-
tants in Europe and 12 in Canada and the United States, against 35 in Africa
and also 35 in Asia. By 1986 the per capita figures had risen considerably,
at least in Europe, where they now reach 46 for 100,000 inhabitants.

B. Negative solutions
Whatever the significance of these figures from a global point of view,
governments and publics in industrialized countries increasingly see the
growth in numbers not as a refugee issue, but as part of a broader aliens
problem, which includes concerns about clandestine immigrants. Strength-
ened by the belief that many newcomers submit manifestly unfounded or
abusive claims or belong in some other manner to "irregular movements,"
governments have tried and are still trying to "stem the flow," specifically
by: (1) re-imposing the obligation of entry visas; (2) returning travellers
forcibly to their country of departure; (3) resorting to measures of deterrence
after asylum seekers are temporarily admitted to the territory of the State
concerned.

1. Visas
On the reintroduction of the visa requirement I wrote in my Study:

With a view to containing arrivals of persons making manifestly

unfounded or abusive applications States, starting with the period
1980I 1981, have reimposed the obligation of entry visas on travellers of
specific nationalities. The reintroduction of visa requirements was
meant not only to counteract irregular immigration (for economic
reasons) but specifically "to contain the abuse of asylum." In order to
promote international relations, particularly as regards business and
tourism, considerable progress has been made in recent decennia in the
lifting of visa requirements. The visa requirement remains nevertheless
(subject, of course, to treaty obligations) a matter of domestic juris-
diction of States and is recognised as a legitimate method of controlling
the entry of aliens. Whether it is a legitimate means if it is used to prevent
deliberately the arrival of asylum seekers is a matter for discussion. It
may well be inconsistent with accepted principles of asylum. 29

2. Forcible return
The forcible return - or rejection at the frontier - of travellers who are or
could be seeking asylum is happening more often today, and probably much
34

more frequently than is commonly assumed. Many of these practices simply

occur quietly, out o( the public eye, never coming to the attention of central
governmental authorities or the agencies concerned (UNH CR, human rights
groups, etc.). We are referring here, however, to recent reported incidents
where aliens have been returned to their country of departure (sometimes to
their country of origin) after a superficial examination of their case, either
because they were not considered to be asylum seekers or because their claim
was considered manifestly unfounded or abusive. 30 These forcible returns
have elicited protests from human rights groups and refugee agencies. They
are not in accord with international consensus on the matter, and in extreme
cases may violate article 33 of the 1951 Convention, which prohibits refou/e-
ment.31.

3. Measures of dete"ence
As to measures of deterrence adopted by various States, I may be allowed
to quote the following from my Study:

In an attempt to stem arrivals of persons making manifestly unfound-

ed or abusive applications an increasing number of States have also
resorted in recent years to "measures of deterrence" which are being
applied indiscriminately to all categories of asylum seekers. The princi-
pal measures of deterrence are the following:
- compulsory assignment to reception centres or other types of collec-
tive accomodation;
- prohibition to take up work either for a limited period (one to two
years) or throughout the entire period of pre-asylum;
- withholding facilities for language tuition, vocational training, etc.;
- restrictive regulations regarding subsistence allowances and/or medi-
cal services;
- in extreme cases, detention well beyond the short period which may
be required for identification purposes.
These measures of deterrence have elicited adverse reactions not only
from nongovernmental organizations concerned with refugees or more
generally with human rights but also from intergovernmental organizations
and from governments. The objections against these measures of deterrence
are manifold:
- the very concept of deterrent measures is not consistent with the fact
that the States concerned are parties to international legal instru-
ments relating to refugees and human rights;
 35

- some measures of deterrence (e.g. abusive detention, compulsory

assignment to collective accommodation as a specific deterrent) are
not consistent with provisions of the 1951 Convention relating to the
Status of Refugees;
- specific measures of deterrence are not compatible with international
legal instruments on human rights to which States are parties;
- specific measures of deterrence (e.g. work for food) are not compati-
ble with other international obligations undertaken by the States
concerned;
- measures of deterrence may affect the physical and mental health of
asylum seekers/refugees;
- measures of deterrence are applied in an indiscriminate manner to
asylum seekers who submit manifestly unfounded and abusive appli-
cations as well as to bona fide asylum seekers.
Another objection of a much more pragmatic character may be raised
against the policy of deterrence: it is not effective. The analysis of
available figures tends to show that in States practising deterrence the
numbers of arrivals declined sharply after the first measures had been
introduced. In subsequent years, however, the number of arrivals has
again increased while the policy of deterrence has been maintained if
not made more stringent. 32 This leads to the conclusion that while a
policy of deterrence is objectionable from the point of view of inter-
national law, specifically of human rights law and of refugee law, its
efficacy is to say the least doubtful. 33

The fundamental reason for the ineffectiveness of negative solutions is that

they do not deal with the causes of irregular movements. As regards specifi-
cally the problem of manifestly unfounded or abusive applications, it is an
aspect of contemporary migration movements and, therefore, cannot be
solved exclusively within the refugee framework. Its solution belongs to the
realm of migration and should be considered in that wider context.

C. Positive solutions

Positive solutions should deal with the causes. I propose to look succinctly
at the typical "irregular movement" of protected asylum seekers and then at
the much advocated "regional solutions."
36

1. Unscheduled spontaneous arrivals of protected asylum seekers or refugees

My Study summarized the reasons prompting asylum seekers or refugees,
who have sojourned for several months or several years in other countries
where they had been given protection, to travel spontaneously to another
country to seek resettlement opportunities:

(a) The asylum seeker is still in the "pre-asylum period" and may
therefore not have been granted durable asylum. On account of a policy
of deterrence or otherwise, he is not authorized to work, he is confined
to collective accommodation, etc.
(b) He may have been recognized as a refugee and been granted
durable asylum but on account of reservations made by the State of
asylum to specific articles of the 1951 Convention (e.g., Article 17) or
more likely on account of general economic and social conditions, he
cannot earn a normal living.
(c) The asylum seeker does not feel at ease in the country of asylum,
for personal reasons, ethnic reasons or otherwise.
(d) The asylum seeker has no possibility or believes he has no
possibility of obtaining a visa for the country where he expects to find
durable asylum and/or acceptable living conditions.
(e) The asylum seeker may have failed in his applications for a
resettlement visa on account either of restrictive quotas instituted by the
country of prospective resettlement or of immigration rules. 34

To prevent irregular movements of such protected asylum seekers and

refugees, the following measures should, therefore, be taken to address the
fundamental causes: (1) accelerate asylum procedures or, as the case may
be, procedures for determining refugee status; (2) provide normal (not
deterrent) conditions during the pre-asylum period; (3) improve economic
conditions in countries where mere formal protection is afforded; (4) provide
effective resettlement opportunities.

2. Extra-regional arrivals: toward finding regional solutions

"The major fact is undoubtedly that the overwhelming majority of asylum
seekers are of non-European origin." This statement, made by a government
representative at the Consultations on the arrivals of asylum seekers and
refugees in Europe, held in Geneva from 28 to 31 May 1985/ 5 epitomizes
the real feeling of governments and of the public at large in industrialized
countries, at least in Europe. This feeling includes the adverse reactions to
"irregular movements" but goes much beyond legal or administrative consi-
 37

derations. It has led to renewed interest in the 1980s in a response such

governments have advocated for a number of years: "regional solutions"
which might result in diminishing the numbers of extra-regional arrivals.
These "suitable solutions within the regional context," as one UNHCR
Conclusion calls them, consist necessarily of the three classical durable
solutions to refugee problems: "facilitating voluntary repatriation," "pro-
moting local settlement in the receiving country," and "resettlement possibil-
ities in a cultural environment appropriate for [the refugees'] well-being." 36
Facilitating the voluntary repatriation of refugees, which is usually regard-
ed as the best durable solution, has been from the inception one of the
primary tasks ofUNHCR. 37 In many situations, voluntary repatriation will
not be possible to arrange, either because the refugees themselves do not
desire it or because the necessary guarantees cannot be obtained. Some
notable successes have been achieved in recent years, however, and the
Executive Committee has outlined important standards and requirements in
a recent Conclusion on the subject. 38
Local settlement in adjacent, developing countries is likely to occur to
some extent in any large-scale refugee flow. It is especially likely where
effective financial and technical assistance has been provided by donor
governments, intergovernmental agencies (mainly UNHCR) and nongov-
ernmental organizations. Such local settlement projects, however, normally
will have little real effect in stemming extra-regional arrivals, because of what
I have called the "split exodus":

Extra-regional movements of asylum seekers and refugees, and also

irregular movements, are very often a fringe aspect of massive exodus.
When large numbers of refugees leave their country of origin, those who
belong to the rural population or to the low-income categories of the
urban population, and who cannot afford long-distance travel even if
they should sell all their belongings, will flee merely to an adjacent
country. On the contrary, refugees in higher income groups will flee to
an adjacent country only as a first means of safety; they tend to move
on to seek better protection and better prospects for the future, particu-
larly if they do not find these conditions in the adjacent country. This
split exodus according to income and social categories is typical oflarge
outflows of refugees from countries with low human rights standards
and with low standards of living. 39

In his Note prepared for the Consultations of May 1985 the High Com-
missioner addressed this phenomenon:
38

29... While programmes of material assistance have usually been

successful in providing for the basic needs of the large majority of such
refugees and displaced persons of rural background, they have fre-
quently failed to deal adequately with the special position of the relative-
ly small numbers from urban/professional backgrounds, mainly on
· account of the sometimes limited social, employment and economic
facilities in the urban centres of developing countries.
30. UNHCR is ready to explore with Governments, of both first
asylum and industrialized countries, the possibilities for adapting its
programmes of material assistance with a view to providing more
adequately for the needs of refugees of urban/professional background,
particularly in the fields of educational and employment opportunities
and social counselling. For such programmes in developing countries
of first asylum to be effective in achieving their objectives, they would
have to take into account the economic and social infrastructures as
well as the corresponding needs of the local population. Any meaningful
assistance programme would therefore have to be development-orient-
ed and would require resources on a scale far beyond what is available
to UNHCR. The principles relating to refugee aid and development,
approved by the Executive Committee in October 1984, could prove
useful in evaluating the feasibility of such programmes. 40

There are no indications so far that industrialized countries are ready to

prepare and implement the difficult and expensive programs which could
"bring about in the urban agglomerations of developing countries economic
and social conditions which could retain refugees on the spot and prevent
further migration."41
This brings us to the third possible durable solution, resettlement. Because
we are here considering such solutions within a regional context, i.e., resettle-
ment from a developing country into another developing country, the obs-
tacles to overcome are considerable, particularly if refugees of urban or
professional background are involved. The difficulties are similar to those
referred to in the High Commissioner's Note for the Consultations, quoted
immediately above, but are compounded by political and psychological
factors well known to socio-anthropologists and political scientists familiar
with developing countries. Once again, the true promise of regional solutions
cannot be realized unless the industrialized countries are prepared to pro-
vide major resources for material assistance, and beyond this, for develop-
ment-oriented programs on a scale not yet implemented.
 39

III. CONSENSUS OF STATES

A. Actions by the UNHCR Executive Committee

The problem of irregular movements was discussed, early in October
1985, by the Sub-Committee of the Whole on International Protection of the
UNHCR Executive Committee. There was general agreement on the basic
definitional approach suggested here:

(I]t was stated at the outset that irregular movements comprise

refugees, whether they have been formally identified as such or not, who
have found protection in one country but who, nevertheless, move in
an irregular manner to another country to seek asylum or a durable
solution. The term "irregular movements" does not, therefore, cover
refugees who arrive directly from a country in relation to which they
allege fear of persecution or [to] refugees who have not yet found
protection in another country, including refugees in an orbit situation. 42

In accordance with standard procedure, the Sub-Committee recommend-

ed Conclusions for adoption by the Executive Committee in plenary session.
Although these conclusions were not finally adopted in the plenary meeting
on account of the opposition of one government, 43 they can be rightly seen
as the consensus of the majority of the 41 member States of the Executive
Committee. They are as follows:

(a) The phenomenon of refugees, whether they have been formally

identified as such or not (asylum-seekers), who move in an irregular
manner from countries in which they have already found protection, in
order to seek asylum or permanent resettlement elsewhere, is a matter
of growing concern. This concern results from the destabilizing effect
which irregular movements of this kind have on structured international
efforts to provide appropriate solutions for refugees. Such irregular
movements involve entry into the territory of another country, without
the prior consent of the national authorities or without an entry visa,
or with no or insufficient documentation normally required for travel
purposes, or with false or fraudulent documentation. Of similar concern
is the growing phenomenon of refugees and asylum-seekers who wilfully
destroy or dispose of their documentation in order to mislead the
authorities of the country of arrival;
(b) Irregular movements of refugees and asylum-seekers who have
already found protection in a country are, to a large extent, composed
of persons who feel impelled to leave, due to the absence of educational
40

and employment possibilities and the non-availability of long term

durable solutions by way of voluntary repatriation, local integration and
resettlement;
(c) The phenomenon of such irregular movements can only be effec-
tively met through concerted action by governments, in consultation
with UNHCR, aimed at (i) identifying the causes and scope of irregular
movements in any given refugee situation, (ii) removing or mitigating the
causes of such irregular movements through the granting and mainte-
nance of asylum and the provision of necessary durable solutions or
other appropriate assistance measures, (iii) encouraging the establish-
ment of appropriate arrangements for the identifi~ation of refugees in
the countries concerned and, (iv) ensuring humane treatment for re-
fugees and asylum-seekers who, because of the uncertain situation in
which they find themelves, feel impelled to move from one country to
another in an irregular manner;
(d) Within this framework, governments, in close cooperation with
UNHCR, should (i) seek to promote the establishment of appropriate
measures for the care and support of refugees and asylum-seekers in
countries where they have found protection pending the identification
of a durable solution and (ii) promote appropriate durable solutions
with particular emphasis firstly on voluntary repatriation, and when this
is not possible, local integration and the provision of adequate resettle-
ment opportunities;
(e) Refugees and asylum-seekers, who have found protection in a
particular country, should normally not move from that country in an
irregular manner in order to find durable solutions elsewhere but should
take advantage of durable solutions available in that country through
action taken by governments and UNHCR as recommended in para-
graphs (c) and (d) above;
(f) Where refugees and asylum-seekers nevertheless move in an irreg-
ular manner from a country where they have already found protection,
they may be returned to that country if (i) they are protected there
against refoulement and (ii) they are permitted to remain there and to
be treated in accordance with recognized basic human standards until
a durable solution is found for them. Where such return is envisaged,
UNHCR may be requested to assist in arrangements for the
readmission and reception of the persons concerned;
(g) It is recognized that there may be exceptional cases in which a
refugee or asylum-seeker may justifiably claim that he has reason to fear
persecution or that his physical safety or freedom are endangered in a
country where he previously found protection. Such cases should be
 41

given favourable consideration by the authorities of the State where he

requests asylum;
(h) The problem of irregular movements is compounded by the use,
by a growing number of refugees and asylum-seekers, of fraudulent
documentation and their practice of wilfully destroying or disposing of
travel and/or other documents in order to mislead the authorities of
their country of arrival. These practices complicate the personal identi-
fication of the persons concerned and the determination of the country
where he stayed prior to arrival, and the nature and duration of his stay
in such country. Practices of this kind are fraudulent and may weaken
the case of the person concerned;
(i) It is recognized that circumstances may compel a refugee or
asylum-seeker to have recourse to fraudulent documentation when
leaving a country in which his physical safety or freedom are endanger-
ed. Where no such compelling circumstances exist, the use of fraudulent
documentation is unjustified;
G) The wilfull destruction or disposal of travel or other documents
by refugees and asylum-seekers upon arrival in their country of desti-
nation, in order to mislead the national authorities as to their previous
stay in another country where they have protection, is unacceptable.
Appropriate arrangements should be made by States, either individual-
ly or in cooperation with other States, to deal with this growing phe-
nomenon.44

B. Evaluation of the Draft Conclusions

A few remarks on these conclusions reached by the Sub-Committee are
in order:

1. Sub-paragraphs (a) and (f)

Regarding the "definition" of irregular movements in sub- paragraph (a),

the UNH CR Director of International Protection stated "that in the light of
the discussions and the wording of the draft Conclusions it was clear that
these did not apply to refugees and asylum seekers who were merely in
transit in another country."45 This is an important proviso, although it might
be helpful to have further guidance in deciding when refugees or asylum
seekers are "merely in transit."
In the phrase "countries in which they have already found protection," the
term "protection" is not further qualified. From sub-paragraph (f) it would
appear that "protected ... against refoulement" is accepted as the minimum
42

protection required. In other words, protection is considered to be establish-

ed at what is merely stage 2 of the listing provided in Part !.B.S. of this paper,
above. This sets too low a threshold. More should be required before onward
movement is considered irregular. This standard is a major weakness of the
draft Conclusions and may be one of the reasons why at least one govern-
ment representative opposed them. 46
A similar comment should be made with respect to "recognized basic
human standards" - also in sub-paragraph (f)- where reference could have
been made by the Sub-Committee to the 1951 Convention or to the "Treat-
ment of asylum seekers who have been temporarily admitted to a country
pending arrangements for a durable solution."47

2. Sub-paragraphs (c), (d) and (e)

The key phrases of the draft conclusions are, in my opinion:

"removing or mitigating the cause of such irregular movements

through the granting and maintenance of asylum and the provision of
necessary durable solutions or other appropriate assistance measures"
(sub-paragraph c), and
"promote appropriate durable solutions with particular emphasis
firstly on voluntary repatriation, and when this is not possible, local
integration and the provision of adequate resettlement opportunities"
(sub-paragraph d).

These phrases are crucial because they focus attention on the real sources
of the irregular movement phenomenon. They also suggest the responsibility
of the full international community to address these problems. All countries
must be involved in providing such solutions; the problems do not simply
belong to the original receiving countries and certainly not to the individual
refugees themselves. Industrialized countries that contribute insufficient
resources toward solutions should not be surprised to find themselves sad-
dled with the difficulties that stem from irregular movements.
The Sub-Committee was also fully aware of the importance, for preventing
irregular movements, "of durable solutions available in that country" (i.e.,
the country from which the irregular movement starts) (sub-paragraph e).
The question arises, of course, of how to bridge the gap - particularly the
psychological gap - between the moment the refugee arrives and his becom-
ing aware that durable solutions are or will be available there, in the receiving
country where some protection has been given. This is not impossible to
achieve, if governments and intergovernmental agencies (particularly
UNHCR) are determined to tackle the problem.
 43

3. Root causes
It is obvious from the analysis presented here and also from the con-
clusions of the UNHCR Sub-Committee of the Whole on International
Protection that governments, international institutions and nongovernmen-
tal institutions could endeavor to limit "irregular movements." They could
not wholly suppress them. Irregular movements are inherent in refugee flows
and can be avoided only if refugee movements themselves can be prevented.
The international community in recent years has launched two historic
efforts within the framework of the United Nations to begin dealing with this
delicate question of prevention. The first was Resolution 30 (XXXVI) on
human rights and massive exoduses, adopted by the Commission on Human
Rights on 11 March 1980.48 A few months later, on 11 December 1980, the
General Assembly adopted Resolution 35/124 on International Co-oper-
ation to Avert New Flows of Refugees. 49
Resolution 30 (XXXVI) of the Commission on Human Rights led to the
appointment of a Special Rapporteur to study the question of human rights
and mass exoduses and subsequently, to the Study on Human Rights and
Massive Exoduses by the Special Rapporteur, Prince Sadruddin Aga Khan,
who formerly had served as the UN High Commissioner for Refugees. The
impact of this Study on contemporary thinking on refugee problems has been
considerable. Among the nine recommendations made by the Special Rap-
porteur the following may be singled out:

(2) A reappraisal of developing countries' economic needs in relation

to possible causes of exodus;
(3) Standardization of international aid criteria;
(4) Simultaneity in approach to the country of origin and country of
asylum to gain a comprehensive view of the overall situation and thus
be able to plan better;
(5) A "hi-multi" aid approach: multilateral aid should take into
account bilateral aid, to prevent duplication and ensure an integrated
approach. 50

These recommendations tie in with our comments on regional solutions

and also with the draft conclusions on irregular movements reached by the
Sub-Committee. To my knowledge, however, no practical implementation
measures have been taken so far.
The General Assembly's Resolution 35/124led to the establishment of a
Group of Governmental Experts on International Co-operation to Avert
New Flows of Refugees. Following a number of meetings spread over nearly
seven years, this body produced a report which was approved by General
44

Assembly Resolution 41/70 of 3 December 1986. 51 • Whether the measures

recommended in this Report, which are largely of a political and diplomatic
nature, can be put into practice, must await the long series of tests on
international cooperation that confront the United Nations system and
specifically member States. 52
Progress in dealing effectively with "root causes" is of necessity slow,
particularly within the United Nations, a gathering of States where ide-
ologies as well as geopolitical and economic interests are more apt to divide
than to unite. One aspect of international character should be noted which
is of ancillary importance in this long preparatory phase but may become
critical if and when real coordinated international action is taken: the role
of the High Commissioner for Refugees.
Until recently the High Commissioner has been very circumspect about
taking any specific role in regard to initiatives meant to address root causes.
Most of the time this reticence has been explained by the much quoted
provision in the Statute of UNHCR according to which "The work of the
High Commissioner shall be of an entirely non-political character; it shall
be humanitarian and social ... " 53After a series of more or less cautious
references in earlier years, a trend has developed in UNHCR and even more
so in the Executive Committee to connect the activities of the High Com-
missioner with the search for root causes and with measures calculated "to
avert new flows of refugees." The reports of the thirty-seventh session (1986)
and of the thirty-eighth session ( 1987) of the Executive Committee include
a section called "Root Causes" and specific references to root causes are
made in the Executive Committee's General Conclusions on International
Protection adopted each of those years. 54 It is obvious that at the critical
moment the High Commissioner may have to participate in whatever inter-
national action on root causes ultimately emerges. Indeed, the Office, with
its long experience in dealing with such matters, may have much to offer
along these lines. A somewhat political approach on root causes may be the
most effective humanitarian action available.

IV. CONCLUSIONS

I may be permitted to quote the conclusions which I reached in Summer

1985, at the end of my Study, and which I believe still to be valid:

Irregular movements of asylum seekers and refugees consist of:

 45

- A fringe aspect of the world-wide migration problem (manifestly

unfounded and abusive applications) which interferes with actual
refugee problems.
- The consequences of deficient legal, economic and social conditions
in countries adjacent to the countries of origin of refugees, chiefly
developing countries, as well as in some industrialized countries of
arrival.
Irregular movements take place mainly from developing countries
towards industrialized countries. They have increased significantly in
recent years. At world level the proportion of irregular movements
would not exceed 2 per cent to 3 per cent of all refugee movements but
the proportion reaches from 20 per cent to 30 per cent of unscheduled
arrivals in industrialized countries.
There is no single solution to the problem of irregular movements.
The immediate responses are largely of a technical nature and belong
to the classical measures in the field of protection of and assistance to
refugees. Most of the remedies have been advocated throughout the
years by the Executive Committee of the High Commissioner's Pro-
gramme. They need to be systematically applied.
These technical remedies would improve the situation but are unlike-
ly to bring about fundamental changes. Much more should be expected
from a vigorous "refugee aid and development" policy aimed at urban
refugee populations in countries of departure of irregular movements.
In the long run, however, results will be achieved only by tackling the
root causes of refugee problems and taking constructive measures to
avert new flows of refugees. At that level the remedies are no longer of
a technical nature but belong to the field of political co-operation
between States. 55

NOTES

1. See Report of the Executive Comm. of the High Commissioner's Programme (35th Sess.},
para. 76, U.N. Doc. A/AC.96/651 (1984) [hereinafter 1984 Ex. Comm. Report].
2. See Report of the Sub-Comm. of the Whole on International Protection, Executive
Comm. of the High Commissioner's Programme (36th Sess.}, paras. 59-70, U.N. Doc.
A/AC.96/671 (1985) [hereinafter 1985 Sub-Comm. Report] (includes a draft Conclusion
on the subject which was generally agreed to by the Sub-Committee).
3. See Report of the Executive Comm. of the High Commissioner's Programme (36th Sess.),
paras. 76-82, U.N. Doc. A/AC.96/673 (1985) [hereinafter 1985 Ex. Comm. Report];
General, Conclusion 36 (XXXVI), id., para. 115(1)(j), 40 U.N. GAOR Supp. (No. 12A)
at 30, U.N. Doc. A/40/12/Add. 1 (1985).
46
4. See Report of the Sub-Comm. of the Whole on International Protection, Executive
Comm. of the High Commissioner's Programme (37th Sess.), para. 2, U.N. Doc.
A/AC.96/685 (1986).
5. Report of the Executive Comm. of the High Commissioner's Programme (38th Sess.),
paras. 32-67,204(i), U.N. Doc. A/AC.96/702(1987) [hereinafter 1987 Ex. Comm. Report].
6. G. Jaeger, Study oflrregular Movements of Asylum Seekers and Refugees (Geneva, July
1985). This study was prepared at the request of the High Commissioner for Refugees
for consideration by his Executive Committee, and was originally printed as a U.N.
Document in a limited series, U.N. Doc. WG/M/2 (1985).
7. Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137; Protocol
relating to the Status of Refugees, Jan 31, 1967, 606 U.N.T.S. 267. For the sake of
simplicity we shall restrict our analysis to the universal convention on refugee status.
8. See generally Note on Procedures for the Determination of Refugee Status under Inter-
national Instruments, submitted to the Executive Comm. of the High Commissioner's
Programme (36th Sess.), U.N. Doc. A/AC.96fiNF.152/Rev. 6 (1985).
9. "Granting" is at least ambiguous and could be a lapsus calami. It is preferable to avoid
this terminology; refugee status is usually "determined" or "recognized."
10. Conclusion 30 (XXXIV), Report of the Executive Comm. of the High Commissioner's
Programme (34th Sess.), para. 97(2), U.N. Doc. A/AC.96/631 (1983), 38 U.N. GAOR
Supp. (No. 12A) at 25, U.N. Doc. A/38/12/Add.1 (1983).
11. ld.
12. Arrangement with regard to the issue of certificates of identity to Russian refugees, 5 July
1922, 13 L.N.T.S. 238 (No. 355).
13. Convention, supra note 7, art. 31(1).
14. Matter of Salim, 18 I. & N. Dec. 311 (BIA 1982). More recent American practice is
receding from this harsh rule. See, e.g., Matter of Pula, Interim Dec. No. 3033 (BIA 1987).
15. See Jaeger, supra note 6, paras. 32-38.
16. See Note on Asylum: Refugees Without an Asylum Country, submitted to the Executive
Comm. of the High Commissioner's Programme (30th Sess.), U.N.Doc. EC/SCP/12
(1979), reprinted in Division oflnternational Protection ofUNHCR, Collection of Notes
presented to the Sub-Committee of the Whole on International Protection, 1977-1980
(1981) (Note VII).
17. See, e.g., Refugees Without an Asylum Country, Conclusion 15 (XXX), 34 U.N. GAOR
Supp. (No. 12) at 17, U.N. Doc. A/34/12/Add.l (1979).
18. See Vierdag, The Country of "First Asylum": Some European Aspects, this volume;
Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Responsibility for
Examining an Asylum Request 17 (Report No. 1, 1986) (report of a seminar held in Lund,
Sweden, 24 to 26 April 1985).
19. See generally M. Marrus, The Unwanted: European Refugees in the Twentieth Century
51-121 (1985).
20. See Jaeger, supra note 6, paras. 91-110, 115-19, 255.
21. See id., para. 128.
22. In its Conclusion 22 (XXXII) on Protection of Asylum Seekers in Situations of Large-
Scale Influx, Report of the Executive Comm. of the High Commissioner's Programme
(32d Sess.),para. 57(2), U.N. Doc. A/AC.96/60l (1981), 36 U.N. GAOR Supp. (No.l2A),
at 17, U.N. Doc. A/36/12/Add.l (1981), the Executive Committee has defined standards
for the "treatment of asylum seekers who have been temporarily admitted to a country
pending arrangements for a durable solution."
 47
23. Durable asylum entails by definition an indefinite right of residence. Its actual content
as to civil, political, economic, social and cultural rights has been defined by the 1951
Convention relating to the Status of Refugees, supra note 7.
24. Jaeger, supra note 6, paras. 11 and 12.
25. Verwaltungsgericht [Administrative Court of] Gelsenkirchen, decision of 17 May 1982
(translation by the present authors). See also the discussion of German doctrine on this
point in Vierdag, The Country of"First Asylum": Some European Aspects, this volume.
26. See Jaeger, supra note 6, paras. 69-72.
27. Id., paras. 120-123.
28. Figures are from UNHCR, other United Nations or government sources. See also Note
on the Consultations on the Arrivals of Asylum-Seekers and Refugees in Europe, sub-
mitted to Executive Comm. of the High Commissioner's Programme (36th Sess.), Annex
I, para. 16, U.N. Doc. A/AC.96/INF.174 (1985) [hereinafter Note on European Consul-
tations].
29. Id., para. 188 (footnotes omitted).
30. See 1987 Ex. Comm. Report, supra note 5, para. 204(c); Note on International Protection,
Executive Comm. of the High Commissioner's Programme (38th Sess.), paras. 21-24,
U.N. Doc. A/AC.96f694 (1987); Overview ofUNHCR Activities, Report for 1986-1987,
Executive Comm. of the High Commissioner's Programme (38th Sess.), paras. 10, 22,
U.N. Doc. A/AC.96J696 (1987).
31. Convention, supra note 7, art. 33.
32. See text accompanying note 28 supra, which contains statistics on arrivals of asylum
seekers in Western Europe. A series of deterrent measures were introduced in many
countries in 1980-81, resulting in a temporary decline which lasted only about two years.
33. Jaeger, supra note 6, paras. 189-191 (footnotes omitted).
34. Id., para. 237.
35. A highly general report of the meeting appears in Note on European Consultations, supra
note 28. See also Jaeger, supra note 6, Annex IV.
36. Conclusion 22 (XXXII), supra note 22, paras. IV(3), (4).
37. Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res.
428(V), Annex, paras. 1, 8(c), 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775
(1950).
38. Voluntary Repatriation, Conclusion 40 (XXXVI), 1985 Ex.Comm. Report, supra note 3,
para. 115(5), 40 U.N. GAOR Supp. (No. 12A) at 33, U.N. Doc. A/40/12/Add.l (1985).
39. Jaeger, supra note 6, para. 145.
40. Note on European Consultations, supra note 28, Annex I, paras. 29-30, referring to
principles described in Note on Refugee Aid and Development, Executive Comm. of the
High Commissioner's Programme (35th Sess.), para. 3, U.N. Doc. A/AC.96/645 (1984);
see also 1984 Ex. Comm. Report, supra note 1, para. 97.
41. Jaeger, supra note 6, para. 274.
42. 1985 Sub-Comm. Report, supra note 2, para. 60. Although called a Sub-committee, this
body actually includes a1141 member States of the Executive Committee, meeting separ-
ately in advance of the full Committee's deliberations in order to focus specifically on
issues involving international protection.
43. 1985 Ex.Comm. Report, supra note 3, para. 82.
44. 1985 Sub-Comm. Report, supra note 2, para. 70.
45. Id., para. 68.
46. Id., para. 65.
48

47. Contained in Conclusion 22 (XXXII), supra note 22, para. II.B.

48. Commission on Human Rights, Res. 30 (XXXVI), 36 U.N. ESCOR Supp. (No.3) at 191,
U.N. Doc. E/1980/13, E/CN.4/1408 (1980).
49. G.A. Res. 35/124, 35 U.N. GAOR Supp. (No. 48) at 93, U.N. Doc. A/35/48 (1981).
SO. Study on Human Rights and Massive Exoduses, Commission on Human Rights, Recom-
mendations, p. (i}, U.N. Doc. E/CN.4/1503 (1981). See generally Martin, Large-Scale
Migrations of Asylum Seekers, 76 Am. J. lnt'l L. 598 (1982).
51. 41 U.N. OAOR Supp. (No. 53) at 128, U.N. Doc. A/41/53 (1986). The Group's Final
Report appears in International Co-operation to Avert New Flows of Refugees (Note by
the Secretary General), U.N. Doc. A/41/324 (1986).
52. See Jaeger, supra note 6, paras. 278-283.
53. Statute of the UNHCR, supra note 37, para. 2 (''The work of the High Commissioner shall
be of an entirely non-political character; it shall be humanitarian and social ..."). This
reticence was again emphasized by the Office in preparing the Consultations of May 1985.
See Note on European Consultations, supra note 28, Annex I, para. 40.
54. See 1987 Ex. Comm. Report, supra noteS, paras. 31, 204(k); Report of the Executive
Comm. of the High Commissioner's Program (37th Sess.), paras. 28, 12S(e), U.N. Doc.
A/AC.96/688 (1986). For a precursor of these developments, see 1985 Ex. Comm. Report,
supra note 3, para. 115 (SXc).
SS. Jaeger, supra note 6, paras. 287-291.
 "JET-AGE REFUGEES": IN SEARCH OF BALANCE AND
COOPERATION

MICHIEL DEN HOND

During 1985 the phenomenon of irregular movements of refugees and

asylum seekers attracted considerable worldwide attention. At the urging of
the Executive Committee/ the United Nations High Commissioner for
Refugees (UNHCR) convened a working group of government representa-
tives to consider the difficult questions this phenomenon poses. 2 Mr. Gilbert
Jaeger served as consultant, and he prepared an extensive study of the
subject. 3
During the first session of the working group, in April 1985, the term
"irregular movements" was considered to apply only to certain movements
from so-called "countries of first asylum" to other countries. Movement by
an asylum-seeker from his country of origin to another country was consider-
ed, as such, not to be an irregular movement even though it may raise similar
problems when it involves travel to a distant part of the world. 4
UNHCR convened the working group and commissioned Mr. Jaeger's
study in response to considerable concern, particularly on the side of indus-
trialized countries, about certain new characteristics of refugee flows across
the world. 5 What is new is this: To the classical situation of refugees seeking
asylum in neighboring countries has been added the feature of refugees
fleeing to other parts of the world, either directly or after passing ~orne time
in a third country. This is the phenomenon that High Commissioner Hartling
has called jet-age refugees. 6 It involves mainly considerable numbers of
people who travel from developing countries to industrialized countries in
the West, often in a commercially organized manner. Frequently the partici-
pants in these movements willfully destroy travel documents and other
papers, in order to deceive the authorities of the country of destination with
respect to their identities and travel routes. 7 These authorities, out of huma-
nitarian concern, often have no choice but to accept the accomplished fact

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
50

of their presence in circumstances where their past history, not to mention

possible association with other countries of asylum, can hardly be traced.
This phenomenon has become apparent at a time when the capacity of the
international community to cope with refugee problems throughout the
world is already under severe strain. One area may be plagued by drought
and famine, another by irreconcilable political differences, a third by eco-
nomic recession. Some areas have all these problems at the same time.
If the international community is to find durable solutions to refugee
problems on a basis of international solidarity and burden-sharing - the
foundation rightly invoked, with great frequency, in international confer-
ences8 and meetings of the UNHCR Executive Committee- then the com-
munity must also take care that its resources, which are limited, are used
judiciously. Otherwise, the carefully built, but fragile, international system
for the protection of and assistance to refugees will not be able to benefit the
greatest possible number of people. The international community has charg-
ed UNHCR with the coordination of these activities. 9 The High Com-
missioner identifies possible durable solutions and sets priorities for their
achievement. His co-ordinating role is aimed at harnessing, in the most
effective way, the resources that countries have committed themselves to
contribute.
The resources available to governments to promote durable solutions for
refugees are of different types. First of all, governments may bring political
commitment to this cause. Furthermore, they may make territory available
to the refugees. Thirdly, there is the provision of material assistance towards
local integration. It is important to realize that these means are of equal
value. Each country should contribute to the international effort what it can
contribute best, in order to provide the optimum solution to as many refugees
as possible. Now, the best durable solution to any refugee problem is
voluntary repatriation to their home country. 10 Barring this solution, the best
is local integration in some asylum country. This country should preferably
be situated close to the refugee's country of origin, as proximity facilitates
eventual voluntary repatriation. 11 Moreover, cultural and other similarities
may promote local integration in the meantime. Within this framework,
refugee problems generated by Eastern European industrialized countries
are solved almost entirely by Western industrialized countries. But since
most of the world refugee problem has gravitated towards the developing
countries, efforts by the international community to provide durable sol-
utions are concentrated there. 12
Among the developing countries, most are highly committed to this cause
and generously grant asylum to tremendous numbers of refugees, without
being able, however, because of their own problems, to assume full responsi-
bility for material support towards local integration. Examples of this si-
 51

tuation are provided by states neighboring refugee-generating countries like

Ethiopia and Afghanistan. The material assistance programs for the millions
of refugees there are mainly funded by industrialized donor countries. 13 In
other situations, however, countries may feel their commitment outweighed
by other considerations of internal or foreign policy or both. Especially when
these considerations are recognized by third countries, situations develop
where refugees find only temporary asylum in the neighboring countries,
while permanent asylum has to be found elsewhere- to a considerable extent
in the same industrialized donor countries just mentioned. In these circum-
stances, large-scale resettlement programs are undertaken. Southeast Asia
provides a prime example of this situation. Huge numbers of Vietnamese,
Cambodian and Laotian refugees have been resettled in the West. 14
It follows from the above that, when it comes to finding durable solutions
for refugees from developing countries, there is a certain division of labor
between developing countries and industrialized countries. The part of the
industrialized countries, to be played under the direction of UNHCR, is to
provide material assistance to facilitate the integration of refugees who have
been granted asylum in developing countries 15 and to resettle those refugees
who cannot be settled in an asylum country in their region of origin. Jet-age
refugees upset this division of labor. When relatively large numbers of
asylum-seekers arrive in industrialized countries where no durable solution
was envisioned for them in the first place, harm may be done to the great
majority of refugees who depend on durable solutions within their region of
origin and, indeed, to the local populations in the countries there. Funds that
could be used for the financing of projects for them may have to be used
instead for the reception and integration of the few who are resourceful
enough to make their way to Europe or North America. Because of the very
high costs that are involved in maintaining the high level of facilities for
asylum-seekers and refugees in the countries concerned, a relatively large
part of the limited funds that are available are used for the benefit of a
relatively small number of people for whom settlement outside their region
of origin is not necessarily warranted. In the Note submitted for the Consul-
tations on the Arrivals of Asylum-Seekers and Refugees in Europe, held in
May 1985, UNHCR provided quite an accurate description of the main
source and nature of irregular movements from developing to Western
countries:

Despite the best efforts of the Governments of first asylum countries

and the financial support of industrialized nations, conditions for re-
fugees and asylum-seekers in developing countries of first asylum in
many instances remain problematic. There are situations in which they
are accommodated in centers and restricted in their movements for
52

reasons of national security. Even in countries where such restrictions

on residence and movements are not applied, educational, professional
and self-sufficiency opportunities are usually limited and the prospect
of fmding an appropriate durable solution is frequently remote. In such
circumstances, there is a natural tendency amongst refugees and asy-
lum-seekers, particularly young men and/or those of urban/professional
background, to seek an appropriate durable solution elsewhere. For
refugees in this situation, industrialized countries including those in
Western Europe, with their relative economic prosperity and liberal
asylum traditions, have become a pole of attraction. 16

One may perhaps add that, in situations where refugees flee directly to
industrialized countries rather than to a country .nearby, we are usually
concerned with refugees with the same characteristics and the same motives
to seek asylum in the West.
This places members of the international community before a particularly
difficult moral and organizational problem. That a refugee, like anyone,
seeks an improvement in his living conditions is only natural. That he does
not want to be stopped in this endeavor by the refugee policies of govern-
ments and international organizations is understandable. But the responsi-
bility of a government and of an organization like UNHCR may supersede
an individual refugee's own interests. The mere fact that a refugee has left
his country of origin or first asylum for some industrialized country does not
necessarily mean that there was no durable solution available within his
region of origin or, indeed, that he will find one elsewhere. It is a widely
accepted principle that the resettlement of refugees is only a solution of last
resort. 17 Resettlement should be well organized, in the interests of the refugee
concerned and the refugee population as a whole. This is the responsibility
of UNHCR, which is charged with identifying, on the basis of certain
criteria, those refugees who need to be resettled and with submitting and
promoting their cases to governments of resettlement countries. The bypass-
ing of UNHCR and its resettlement procedures and criteria undermines
UNHCR's crucial role as international coordinator.
To accept categorically the young men and those of urban or professional
background, simply because they had the resources to make their own way
to Europe or North America, as has been suggested, would aggravate the
problems already complicating the progress of developing countries. It
would also further the imbalance in age, sex and education that is hampering
the integration of refugee communities in many asylum countries. It would
reduce resettlement opportunities for those who truly need it most: that is,
those who are in physical danger in their countries of first asylum, the
handicapped, and members of scattered families. It would appear from past
 53

experience that industrialized countries are willing to consider any percent-

age of the world refugee population for resettlement, not as a mere gesture
of solidarity, but if it is clear that resettlement indeed is what is needed as
an instrument in the wider context of international action on behalf of
refugees. In fact, a number of these countries, like the Netherlands, have
recently increased, or are in the process of increasing, their annual resettle-
ment quotas. 18
The Netherlands government explicitly places the expansion of its resettle-
ment activities in the context of the progress that has been made plotting a
course toward countering irregular movements of refugees and asylum
seekers from countries of ftrst asylum to other countries. Following Mr.
Jaeger's study of the subject and the deliberations of the working group,
UNHCR submitted to the 1985 Session of the Sub-Committee on Inter-
national Protection of the Executive Committee a draft Conclusion that has
given quite a new tum to the so-called "country offrrst asylum" question. 19
At the core of this question is that international law does not legally obligate
states to grant asylum to refugees. 20 The freedom of the state, in the exercise
of its sovereignty, to grant or deny asylum to refugees may only be restricted
by its obligation under refugee law "not to expel or return a refugee ... to the
frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social
group or political opinion."21 International refugee law, however, leaves
much room between adherence to this nonrefoulement principle on the one
hand and the refusal of asylum on the other. Because of this gap, it can even
be argued that a state is not contravening the UN Refugee Convention when
it sends a refugee "into orbit." This indicates the deficiencies we are facing.
A refugee may end up in orbit when the country where he seeks second
asylum, in the exercise of its sovereignty, refuses to grant protection and
instead requires the refugee to return to the country of frrst asylum which,
in the exercise of its sovereignty, refuses him reentry. Efforts have been made
to develop criteria to identify the country that should assume ultimate
responsibility for granting asylum to the refugee concerned. These criteria
include: the duration of his stay in a particular country, his relation to that
country and its authorities, the nature of his stay there, and the intentions
of the refugee himself. No agreement has ever been reached on these criteria
as such, nor on their exact extent. 22
It now appears that, in order to escape getting bogged down in endless
discussions about these criteria, UNHCR has decided not to follow a
legalistic approach, but to aim at a more pragmatic and structural approach
to the issue. The draft Conclusion on irregular movements which the High
Commissioner submitted to the Executive Committee in October 198523
reflects the need to fit the asylum policies of states into the structured efforts
54

of the international community to find durable solutions to refugee problems

throughout the world. In this view, the rationale for application of the
concept of "country of first asylum" is not simply to manifest national
sovereignty. Instead, the rationale stems from the need to counter irregular
movements, precisely because they have a negative impact on international
efforts on behalf of refugees. In this approach, the interest of the individual
refugee is not balanced primarily against the interests of the state in which
he seeks asylum but against the interests of refugee communities as a whole.
How states, together with UNHCR, can best serve those broader interests
will differ from refugee problem to refugee problem. For the individual
refugee who wishes to extricate himself from international efforts to help his
refugee coi:nmunity as a whole, by travelling in an irregular manner from a
country in which he has already found protection to a second country, this
approach may entail return from the second to the first country. Of course,
when a refugee or asylum-seeker faces danger in the country where he had
initially found protection, return to that country should be out of the
question.
The High Commissioner's draft Conclusion did not expressly mention an
obligation for that first country to readmit him. But if that country does
deny readmittance, in fact it stimulates irregular movement and thus places
itself, in an important sense, outside the international community. The draft
Conclusion further promotes flexibility by states regarding readmission of
refugees by stipulating that the necessary material assistance should be
provided by the international community if permanent asylum in the country
of frrst asylum is possible. It also specifies that resettlement in other
countries - through regular channels - should result, if permanent asylum
there is not possible.
UNHCR's draft Conclusion was not adopted by the 1985 Executive
Committee. The search continues, however, for a practical approach, aimed
at structured international cooperation to provide humane solutions. Fol-
lowing a first meeting in Stockholm, at the end of 1985, the Minister of
Foreign Affairs of the Netherlands organized informal consultations in the
Hague, in April 1986, involving a number of Western countries and
UNHCR. In this meeting it was recognized that, in order to achieve humane
solutions, each situation of irregular movements requires a set of practical
measures adapted to the characteristics of that specific situation. Countries
directly involved in such a situation (countries of origin, transit and desti-
nation) would have to participate, while others might contribute as well.
Participation by countries not directly involved would underline the impor-
tance of a global responsibility for the refugee problem and of the need to
find solutions in a context of international solidarity and burden-sharing.
Furthermore, the need for close cooperation between states and UNHCR
 55

in this field was reaffirmed, as well as UNHCR's coordinating role, since a

coordinated approach to a specific problem will prevent it from being shifted
from one country to the next. High Commissioner Hocke subsequently took
the initiative to convene working groups in Geneva to consider specific
situations, notably that oflranian asylum-seekers and that of Tamil asylum-
seekers from Sri Lanka. These working groups were given further impetus
during renewed informal consultations between participating countries and
the High Commissioner in Geneva (in December 1986) and Gerzensee (in
February 1987).24
These are modest signs that the international community may be on its
way toward finding solutions to the twin problems of irregular movements
and refugees in orbit. It is necessary to press forward in that search, keeping
our vision focused on a just balance of the interests of all concerned.

NOTES

1. Report of the Executive Comm. of the High Commissioner's Programme (35th Sess.)
para. 76, U.N. Doc. A/AC.96/651 (1984) [hereinafter 1984 Ex. Comm. Report]; Summary
Record of the 373d Meeting of the Executive Comm. of the High Commissioner's
Programme (35th Sess.) para. 84, U.N. Doc. A/AC.96/SR.373 (1984); Summary Record
of the 374th Meeting, para. 40, U.N. Doc. A/AC.96/SR.374 (1984).
2. The author of this paper participated in this working group as spokesman for the
Netherlands Government.
3. Mr. Jaeger's report, originally printed as a working document for the Executive Com-
mittee, has now been published and is available from UNHCR in Geneva. G. Jaeger,
Study of Irregular Movements of Asylum Seekers and Refugees, (Geneva, July 1985)
[hereinafter cited as Jaeger Study]. Mr. Jaeger summarizes his conclusions in his paper
in this volume, Irregular Movements: The Concept and Possible Solutions.
4. Jaeger Study, supra note 3, at 43.
5. 1984 Ex. Comm. Report, supra note 1, paras. 76, 87b.
6. Id., Annex at 2 (opening statement by the High Commissioner); see also Note on
International Protection (submitted by the High Commissioner), Executive Comm. ofthe
High Commissioner's Programme (35th Sess.) paras. 11-13, U.N. Doc. A/AC.96/643
(1984).
7. Report of the Sub-Comm. of the Whole on International Protection, Executive Comm.
of the High Commissioner's Programme (36th Sess.) paras. 59-63, U.N. Doc.
A/AC.96/671 (1985) [hereinafter 1985 Sub-Comm. Report].
8. As of 1983, the General Assembly of the United Nations in its annual resolution on the
Report of UNHCR explicitly calls upon states to promote durable solutions "in a spirit
of international solidarity and burdensharing." G.A. Res. 41/124,41 U.N. GAOR Supp.
(No. 53) at 183 [para. 16], U.N. Doc. A/41/53 (1986); G.A. Res. 40/118,40 U.N. GAOR
Supp. (No. 53) at 233 [para. 13], U.N. Doc. A/40/53 (1986); G.A. Res. 39/140, 39 U.N.
GAOR Supp. (No. 51) at 229 [para. 10], U.N. Doc. A/39/51 (1985); G.A. Res. 38/121,
38 U.N. GAOR Supp. (No. 47) at 217 [para. 10], U.N. Doc. A/38/47 (1984). In previous
resolutions, states were called upon to share the burden, initially in a financial sense only
and following the Southeast Asian refugee emergency, around 1980, through the resettle-
ment of refugees as well.
56

9. See Statute of the Office of the United Nations High Commissioner for Refugees, G.A.
Res. 428(V), 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1715 (1950), reprinted in
Office ofThe United Nations High Commissioner for Refugees, Collection oflnternation-
al Instruments Concerning Refugees 3 (1979).
10. Although the voluntary repatriation of refugees is mentioned in G.A. Res. 428(V) of 14
December 1950 and the Statute of the High Commissioner's Office that was adopted with
this resolution, see note 9 supra, only since 1980 has this form of durable solution been
expressly recognized in a separate Conclusion ofUNHCR's Executive Committee as the
most appropriate solution for refugee problems. Voluntary Repatriation, Conclusion 18
(XXXI), 35 U.N. GAOR Supp. (No. l2A) at 15, U.N. Doc. A/35/12/Add.l (1980). The
precedence of voluntary repatriation over the other two durable solutions, local inte-
gration and resettlement, could until then be deduced from the order in which they were
mentioned in General Assembly resolutions and UNHCR documents. Subsequently, the
preeminence of voluntary repatriation was confirmed, as of 1983, in General Assembly
resolutions. See resolutions cited in note 8 supra. Special mention should be made of the
1985 Conclusion of the Executive Committee, which describes in considerable detail the
role and competences ofUNHCR in promoting voluntary repatriation. Voluntary Repa-
triation, Conclusion 40 (XXXVI), 40 U.N. GAOR Supp. (No. l2A) at 33, U.N. Doc.
A/40/12/Add.l (1986); see also 1985 Subcomm. Report, supra note 7, para. 70(d),
(voluntary repatriation as the most desired durable solution).
II. See Note on the Consultations on the Arrivals of Asylum-Seekers and Refugees in
Europe, Annex III, U.N. Doc. A/AC.96/INF.l74 (1985) [hereinafter Note on European
Consultations] (opening statement by the High Commissioner); Report of the Executive
Comm. of the High Commissioner's Programme (37th Sess.) para. l25(c), U.N. Doc.
A/AC.96/688 (1986).
12. Note on Durable Solutions (submitted by the High Commissioner), Executive Committee
of the High Commissioner's Programme (36th Sess.), U.N. Doc. A/AC.96/663 (1985).
13. See, e.g., U.S. Committee for Refugees, World Refugee Survey at 40, 55-56, 66-67 ( 1985).
14. See generally Wain, The Indochina Refugee Crisis, 58 Foreign Aff. 160 (1979).
15. See Second International Conference on Assistance to Refugees in Africa: Report of the
Secretary General, U.N. Doc. A/39/402 (1984).
16. Note on European Consultations, supra note ll, at Annex I, para. 12 (Note by the High
Commissioner).
17. Note on Durable Solutions, supra note 12, para. 23; see also Report of the Executive
Comm. of the High Commissioner's Programme (36th Sess.) paras. 153-54, U.N. Doc.
A/AC.96/673 (1985).
18. See, e.g., United States Department of State, World Refugee Report at 73-74 (Nether-
lands), 77-79 (Canada), 82-84 (United States) (1985).
19. Note on Irregular Movements, U.N. Doc. ECfSCP/40 (1985). The operative language of
the draft Conclusion, as adopted by the Sub-Committee, is reprinted in Mr. Jaeger's paper
in this volume, supra, pp. 39-40.
20. See G. Goodwin-Gill, The Refugee in International Law 121-23 (1983); 2 A. Grahl-Mad-
sen, The Status of Refugees in International Law 107-09 (1972).
21. Convention relating to the Status of Refugees, July 28, 1951, art. 33(1), 189 U.N.T.S. 137,
150.
22. See Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Responsibility
for Examining an Asylum Request 9-14 (1986). Vierdag, The Country of"First Asylum":
Some European Aspects, this volume, pp. 73-84.
23. See note 19 supra.
24. See Refugees, Aug. 1986, at 7; id., Dec. 1986, at 22; id.• March 1987, at 7.
 REFLECTIONS ON THE REFUGEE ACT OF 1980

DORIS MEISSNER

Our Colloquium seeks to examine the political asylum dimension of

international refugee issues. This focus is appropriate and timely because the
appearance of large numbers of political asylum applicants within countries
of potential refuge is the new reality, largely unanticipated, that traditional
refugee receiving countries must confront.
My remarks will be in the nature of reflections on the U.S. experience in
refugee policy-making and implementation in the 1980s. The year 1980 is,
of course, a key reference point because it marks the passage of major
reforms in U.S. refugee law, through the Refugee Act of 1980. 1 For me, the
U.S. record and difficulties in meeting the asylum challenge are on a contin-
uum with those I see in our overseas refugee program. So I would like to
begin with a view of overseas policy issues as the backdrop for an appraisal
of the theme of this conference, The New Asylum Seekers.

OVERSEAS REFUGEE PROGRAM

Before 1980, U.S. law allowed for the admission of 17,400 refugees
annually, specifying that they be from Communist countries or countries of
the Middle East. 2 Because of the inadequacy of this provision, the Attorney
General's parole authority increasingly came to be used to admit people
when serious refugee crises arose requiring the admission oflarge numbers. 3
The parole authority at the time gave virtually total discretion to the Attorney
General to admit persons to the United States. As such, it provided a highly
flexible, responsive tool for the government to meet urgent humanitarian
needs. Nevertheless, successive Attorneys General uniformly balked at in-
voking it to authorize large-scale admission programs. They agonized over

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
58

whether its use exceeded the proper scope of executive power, because
admission of persons to the United States has traditionally been a jealously
guarded statutory power of Congress.
Parole actions were also imperfect from the standpoint of program admin-
istration and legal status of the individual refugee. Parole programs had to
be supplemented by appropriations to provide the necessary funds for
processing, transporting, and resettling refugees. Separate, special legis-
lation was also required to enable refugees to become permanent residents
and eventually apply for citizenship, because parole status gives the holder
the right to be in the United States, nothing more. As a result, U.S. refugee
efforts were highly fragmented and frequently executed inefficiently. 4
As a response to these problems, the Refugee Act provided needed sol-
utions and has formed the basis for a record of positive accomplishments:
First, it established in statute the process of annual consultations between
executive branch officials and Congress to fix refugee admissions ceilings. 5
Consultations have proven a healthy way to assure the necessary infor-
mation exchange and negotiation over numbers and groups of refugees,
while still preserving adequate flexibility for the government to respond to
changes in the refugee picture or unforeseen emergencies.
Second, the Refugee Act incorporated the United Nations definition of
refugee into U.S.law. 6 This has allowed the U.S. program to complement
more logically the efforts of other nations and has helped to solidify consis-
tency of principles and precepts about refugees world-wide.
The third contribution of the Act has been coordination of bureaucratic
activity among government agencies and the voluntary community. Because
refugee affairs have so many actors both within and outside the government,
coordination and communication are especially important. As a result, the
Act's delineation of roles, authorities, and funding provisions has brought
about vast improvements in overall program effectiveness. 7
And finally, the Act clarified the legal status of refugees and provided them
with a direct path to the rights and prerogatives oflegal permanent residents
after a year in this country. 8 Refugee status therefore now leads to eligibility
for citizenship after five years. This virtually automatic entitlement, replacing
the earlier dependence on special ad hoc legislation to regularize the status
of successive groups, signalled an important philosophical and policy com-
mitment to the cause of refugees. In addition, it has eliminated considerable
personal hardship and anxiety for the many individuals who, before the
Refugee Act, had no real status in this country and remained, often for years,
in a state of legallimbo. 9
These improvements have all been to the good. But the Act had a deeper
purpose. Its underlying hope and promise were to fashion an instrument that
would allow this country to carry out the humanitarian ideal to which our
 59

nation has been historically committed. That ideal is the offer of liberty and
safety to persons from other lands who are persecuted.
Achieving that purpose has unfortunately proven elusive and controversi-
al, so that the Act has, in my view, fallen short of achieving its central and
most noble goal. There are two principal reasons why. First, refugee resettle-
ment tends to stimulate increases in a refugee flow. While it meets the needs
of particular refugees, our experience has been that the humanitarian re-
sponse of resettlement, an attempt at solutions, also creates the problem of
generating more people in need. Over time a refugee flow loses much of its
refugee character and becomes a migration stream. By this point, many of
those on the move are seeking admission to the United States to join family
members and find opportunity - the classic profile of an immigration rather
than a refugee group. To continue to admit such persons and call them
refugees is improper. We have not formulated ways to manage that tran-
sition, and domestic political support for the admission of people whose
refugee claims become thin is waning. This brings into play a degree of public
cynicism and hostility that makes it difficult to draw from our national
reservoir of humanitarianism and good will. Second, foreign policy interests
and objectives drive our refugee program out of proportion to the humanitar-
ian purposes envisioned by the Act.
Southeast Asia serves as the best illustration for both points. The majority
of the populations of Vietnamese, Laotians and Cambodians in the camps
in Thailand, Malaysia, and Indonesia today had little direct association with
the war effort or the U.S. role in it. Nor can they make convincing claims
to having suffered persecution distinct from the suffering wrought by the
·general disorganization and economic stagnation that have plagued their
countries since 197 5. By and large they have family- distant relatives usually
-in the United States and are looking for a better life. Such facts merit our
sympathy and perhaps a direct response, but they do not rise to the standing
that merits a refugee grant.
Yet annual admission ceilings for these groups remain high. They are kept
that way for foreign policy reasons. In 1979, to gain cooperation and safe
haven for the tens of thousands who fled by boat from the Communist
governments of their countries, the United States promised the first asylum
countries of Southeast Asia that no •·..fugees would be left on their soil
permanently. That guarantee has become a foreign policy mantra, immutable
despite the changing character of the flow. Thus the foreign policy necessity
of maintaining a promise that has a decreasing basis in reality shapes the
character of our program in that region of the world, while the program
grows increasingly distant from the mandate of the Act, which is to resettle
refugeeS as defined in U.S. }aw. 10
60

POLITICAL ASYLUM

With that review as a backdrop, let me turn now to the matter of political
asylum. The lack of proportion that I have described in the overseas refugee
program is similarly evident in the political asylum experience. Let me
explain.
Providing for political asylum in the Refugee Act was almost an af-
terthought. Our historical understanding and policy conception of refugees
and refugee situations was that of an overseas phenomenon. As a nation,
we saw ourselves responding to events that occurred far away, and we saw
refugees as persons whom we screened and chose before they could come
to the United States.
Regulations for treating political asylum requests by persons already in
this country had existed for some years. 11 As they had no explicit statutory
base, it seemed tidy to add language to the Act providing the requisite
authority. 12 In a further tribute to tidiness, an annual number of 5,000 was
authorized to allow successful asylum applicants to adjust status to that of
lawful permanent residents and ultimately become eligible for citizenship. 13
The number was arbitrary but was seen as most generous and highly unlikely
to be needed, because there were less than 2,000 annual applications, an
all-time high, in the system at that time. Remember, this was only six or seven
years ago.
To appreciate what has happened, it is instructive to make a quick review
of subsequent events.
I mentioned that the Refugee Act was signed in spring, 1980. March 17
is the precise date. On April 20, a storm of boats carrying Cubans from
Mariel harbor began arriving in Florida. It did not stop until several months
and 125,000 people later. Among the many problems the boatlift presented
was the quandary of how to classify these individuals. Earlier waves of
Cubans since the 1959 revolution were assumed to be refugees. Under the
new Act, however, it was unclear what the status ofthe uninvited newcomers
should be, for their manner of arrival and the reasons they came were never
envisioned by the legislators. United States officials responded by instruct-
ing the Marielitos to submit individual claims for asylum so as to stop the
clock until decisions were made on how to treat this unprecedented event.
Almost 50,000 claims were filed before the executive branch formulated a
decision to seek special legislation to establish a new legal status for the
entire group. 14 Thus, a substantial political asylum case backlog, generated
under the most hostile of circumstances in the eyes of the bureaucracy but
arising at the behest of the government, appeared virtually overnight.
A second event added to that backlog. As is well known, the fall ofthe Shah
and the Iranian hostage crisis dominated the American foreign policy agenda
 61

throughout 1980. Iranians constituted the largest nonimmigrant nationality

group in this country. Specifically, Iranians constituted the largest
contingent of foreign students, about one-quarter million. They were here as
the result of generous, longstanding government-financed education pro-
grams that had been part of the Shah's ambitious effort to modernize his
kingdom. Return of those whose visas had expired was viewed as inhumane
given the upheaval in Iran. We initially declared a blanket halt to returns
through an "extended voluntary departure" (EVD) action, the characteristic
policy response in such circumstances. But after our hostages were seized
in November 1979, the U.S. government changed course. All nonimmigrant
Iranians in the United States were ordered to report to INS for a status
review, and as part of that change, EVD protection was brought to an end
- a gesture of toughness and vigilance.
Nevertheless, those implementing the new policy were still troubled about
the prospect of deportations in the midst of such turmoil. What advice was
given to Iranians in the United States? File a claim for political asylum to
stop the immigration enforcement clock until the picture back home becomes
clearer. And uncertainty about future events in Iran was not the only reason
for the great reluctance to move ahead with final adjudication of the Iranian
asylum applications. Actual grants of asylum might have been viewed by
Iranian radicals, policymakers believed, as a hostile act, with possible unfor-
tunate consequences for the American hostages. Naturally, anything with
such potential was avoided at all costs. And so the State Department simply
held on to Iranian files. It suspended issuance of advisory opinion letters,
which were ordinarily required by the regulations before the Justice Depart-
ment could issue final rulings on asylum applications. With hundreds of files
coming in and none going out, naturally the backlog mushroomed. 15
Still a third group joined the backlog in 1980. Shortly before the Somoza
government in Nicaragua fell in July 1979, the Administration had suspend-
ed deportations of Nicaraguans in the United States who were unwilling to
return home, because of the civil war then raging. This blanket EVD policy
was allowed to expire in September 1980. Those persons subject to depor-
tation who were no longer protected by EVD and were unwilling to return
to Nicaragua were advised to file individual claims for asylum to receive a
case-by-case evaluation. 16
Before the passage of the Refugee Act in 1980, the political asylum
caseload consisted mostly of Haitians who had been attempting, throughout
the late 1970s, to use asylum procedures to gain a refugee foothold in the
United States. Suddenly, within six months after passage, more than
100,000 individual claims for asylum had been filed, largely as a result of the
three events described above. Asylum, the sleeper of the new legislation,
emerged as the dragon lady, center stage. A series of ad hoc events in
62

combination with unplanned, reactive governmental advice produced a de

facto safe haven policy for tens of thousands of aliens. No machinery had
been assembled to handle this workload and no substantive thinking or
planning had been generated to analyze the phenomenon of the United
States serving as a country of both first asylum and resettlement.
Officials quickly concluded that asylum represented the newest loophole
in the immigration law. One could file a claim, no matter how lacking in
merit, and the clock stopped on any further immigration action. This
outcome resulted not only from a careful reading of the new law by lawyers
and deportable aliens searching for ways to thwart governmental action. It
stemmed in large part from advice given to aliens by the government. Word
travelled quickly that a new opportunity to delay enforcement had appeared.
By 1982, the political asylum crisis- for so it was viewed- was underway.
Although the government's forecasts and planning for the political asylum
caseload were inadequate, the sudden backlog caught the attention of immi-
gration officials. Processing the cases became a priority activity in 1983. INS
offices and the State Department's Bureau of Human Rights, charged under
interim regulations with issuing advisory opinions on each case, 17 mustered
the necessary staff to handle the new caseload.
The caseload by then was a mixed bag. With the exception of Iran, where
country conditions were stark but clear and a history of overseas refugee
admissions to this country had been established, the countries of origin of
the largest number of applicants were in the Western Hemisphere, nearby.
These countries were also sources of significant illegal migration to the
United States since the early 1970s.
In fact, the overriding United States experience with migration from these
nations had been one of controlling an illegal migration threat. That they
might also be refugee-producing nations was acknowledged in testimony and
speeches but never taken seriously by the bureaucracy. The outlook of
government officials mirrored the national experience to date: there were
countries of refugee origin -Vietnam, the Soviet Union, Afghanistan - and
there were countries of illegal migration- Mexico, El Salvador, Haiti. That
some countries might produce both was uncharacteristic. Probing the line
separating economically and politically generated flight was a new com-
plexity. Feeling overwhelmed by applications and sensing that aliens filing
for political asylum were simply taking advantage of a loophole in order to
stop enforcement of departure, officials brushed over that difficulty. There
resulted a heavy emphasis on quantity over quality. The effort was to clear
field offices ofbacklogged applications in order to achieve currency and send
the message that the asylum loophole was being closed. The substantive
complexity of these new cases, along with other new issues presented by this
situation, came to occupy a low rung on the ladder of official concern.
 63

Traditionally, a degree of tension -let's term it creative tension- exists

between State and Justice over the issue of who is a refugee. State classically
is the refugee apologist and Justice the hard-boiled nay-sayer. Normally,
therefore, State seeks high percentages of refugee grants because refugee
admissions typically support broader foreign policy goals such as anti-
Communism or regional stability. Justice, viewing itself as the neutral arbiter
of the law and brakeman on the immigration train, errs on the opposite side.
This tension did not come into play with the asylum caseload because
several ofthe source countries were foreign-policy friends. Toward antagon-
ist nations, political asylum and refugee decisions represent one of many
methods for registering disapproval of a nation's leadership or political
system. Toward friends and allies, such decisions are trickier. El Salvador
is the best case in point. Because the United States was supporting the
government of El Salvador, a low percentage of asylum grants served U.S.
foreign policy objectives. A high percentage would have conveyed some
disapproval behind the vote of confidence being given to its struggle for
democracy. So the INS's emphasis on rapid case processing and illegal
migration, combined with a lack of incentive for the State Department to dig
into the difficult but critical issues of economic versus political flight, resulted
in extremely low approval rates - about two percent - at the very time when
public awareness of and revulsion over the death squad activity in El
Salvador reached a peak.
Critics of the Administration's Central America policy seized upon the
anomaly of scant approvals of asylum applications originating from a
country gripped by documented death squad terror. They used this theme
as a fundamental organizing issue for the sanctuary movement. 18 Sanctuary
activists have been successful in developing public awareness of even the
most specific details of the asylum decision-making process. Public attitudes
about political asylum today are based almost wholly on the controversy and
discussion surrounding the Salvadoran asylum caseload.
To be sure, the sanctuary movement has a distinct foreign-policy agenda
and results from the deep domestic debate that has unfolded over U.S.
policy in Central America. But that debate need not have provided the forum
for public evaluation of the integrity of political asylum decision-making, if
only the government had not served up the issue on the proverbial silver
platter. Unfortunately, a two percent approval rate simply could not withs-
tand the common-sense test of public scrutiny.
I do not know the proper approval percentage for Salvadoran cases. It
is less than 100 per cent, less than 50 per cent, and probably less than 25
per cent. There is no right number. What there is instead is a plausible,
defensible, fair number. It is the number that would have resulted from an
honest look at the Salvadoran caseload in an attempt to make distinctions
64

about various types of individuals in it. Special care could have been given
to interviewing and assessing the circumstances, for example, of community
organizers, rural health workers, teachers, labor union leaders, doctors, lay
religious activists, and others.
Had the norms and factual circumstances that were developed during the
same period to guide decisions for overseas processing of Southeast Asian
cases, 19 for example, been applied to the Salvadoran caseload, I believe the
pattern of approvals and denials would have been considerably different.
Because such an effort was not made, the interested public and careful
observers have rendered harsh judgment on the government's good faith and
its willingness to administer a judicious political asylum policy.
The defect is not limited to the El Salvador case. A recent story on the
front page of the New York Times offers a tantalizing new twist. The piece
describes a Justice Department review of proposed asylum regulations that
resulted from concern that approval rates for Polish applicants, which are
about 38 per cent, are too low in light of the Administration's antipathy for
the Communist regimes of Eastern Europe. Someone therefore proposed
that the asylum regulations state that all applicants from "totalitarian"
governments be presumed to be refugees. In explaining the rationale for the
proposed change, a staff aide to Attorney General Meese said, "our asylum
policy is inconsistent with our foreign policy."20
That is the core issue. Should refugee and asylum policy support and be
an adjunct of U.S. foreign policy? Or should refugee policy, based on the
humanitarian principle of safety for victims of political persecution in
countries of whatever ideological stripe, develop as an equally important
national objective in its own right?
The Refugee Act envisioned and provided the framework for the latter.
We have learned since passage, however, that the Act established a process,
not a policy. It codified a framework for refugee admission decision-making
on an annual basis and the funding mechanisms necessary to support it.
These advances were needed, and the process has proven to be a useful and
responsive tool. Refugee policy, on the other hand, has remained a mirror
of our foreign policy and has not developed as a distinct discipline. It
therefore remains unsettled, the object of vigorous and growing debate.
Implementation of the Act in a manner that meets the purpose and vision
it evoked requires that refugee and asylum objectives be pursued along with
foreign policy goals instead of chronically subordinate to them. The two can
never be fully divorced nor should they be. Still, we must come to the point
where, as a nation, we can say to an El Salvador:

We support and will vigorously assist you in your efforts to bring

democracy to your country. At the same time, we will give haven to
 65

those in your country who are persecuted and we implore you to make
every effort to end the abuses that make this necessary.

Or we can say to a Poland:

We decry totalitarian systems and believe democratic institutions are

the will of people worldwide. But we recognize that millions live under
repressive regimes, and while they do not enjoy the liberty that is their
due, they are also not all victims of persecution as described in inter-
national law.

We have not yet reached an understanding of how to pursue and achieve

the proper balance between refugee and foreign policy objectives. That we
can establish a better balance I have no doubt. It is a quest worth making,
for the objectives of the 1980 Act reflect values that are among the most
sacred in our historical traditions and in our hopes for the future of civili-
zation in a troubled world.

NOTES

1. Pub. L. No. 96-212, 94 Stat. 102 (codified in scattered sections of 8, 22 U.S.C.).

2. INA§ 203(a)(7), 8 U.S.C. § 1153(aX7) (1976). This provision was repealed by the Refugee
Act of 1980.
3. INA§ 212(dX5), 8 U.S.C. § 1182(dX5) (1976). The Refugee Act amended this provision
in order to limit its use for future admissions of refugees. See 8 U.S.C. § 1182(dX5) (1982).
4. See Martin, The Refugee Act of 1980: Its Past and Future, 1982 Mich. Y.B. oflnt'l Legal
Stud. 91, 91-96.
5. INA § 207(d), 8 U.S.C. § 1157(d) (1982).
6. INA § 101(a)(42)(A), 8 U.S.C. § 1101(aX42XA) (1982).
7. Section 301 of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 109-10,
establishes by statute the Office of the United States Coordinator for Refugee Affairs,
giving the Coordinator the responsibility, among many other duties, to develop "an
effective and responsive liaison" between the federal government, public agencies and
private voluntary organizations involved in refugee relief and resettlement. Other portions
of the Act also specify much more precisely than before the respective roles of the
Departments of Justice, State, and Health and Human Services. See, e.g., INA §§
207-209, 411-414, 8 u.s.c. §§ 1157-59, 1521-24 (1982).
8. INA § 209(c), 8 U.S.C. § 1159(c)(l982).
9. See Martin, supra note 4, at 96-97, 109-10.
10. See generally U.S. Dept. of State, Report of the Indochinese Refugee Panel (Ray Com-
mission) 15-19 (1986); U.S. Refugee Program: Hearings Before the Subcomm. on Immi-
gration, Refugees and International Law of the House Comm. on the Judiciary, 97th
Cong., lst Sess. 191-94 (1981) (statement of Prof. Astri Suhrke); Indochinese Refugees:
The Impact on First Asylum Countries and Implications for American Policy, A Study
66
Prepared for the Use of the Joint Economic Committee, 96th Cong., 2nd Sess. (Joint
Comm. Print 1980) (prepared by Prof. Suhrke).
11. See, e.g., 8 C.F.R. § 108 (1978).
12. INA § 208, 8 U.S.C. § 1158 (1982).
13. INA§ 209(b), 8 U.S.C. § 1159(b) (1982).
14. The Administration bill was introduced as S. 3013, 96th Cong., 2d Sess. (1980). It was
never enacted, although other legislation incorporated modified provisions for assistance
to arriving Cubans and Haitians. Not until November 1986 did Congress enact legislation
finally permitting "Cuban-Haitian entrants" to clarify their legal status and become lawful
permanent residents. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,
§ 202, 100 Stat. 3359.
15. See T. Aleinikoff & D. Martin, Immigration: Process and Policy 728-29 (1985); 56 Interp.
Rei. 515e (1979) (INS regulations revoking prior grants of deferred departure and ex-
clusion to Iranians but informing Iranians that they may be eligible for discretionary relief
and asylum); Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980); Narenji v. Civiletti, 617
F.2d 745 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980) (approving various immi-
gration-law elements of the U.S. response to the Iranian hostage crisis).
16. See T. Aleinikoff & D. Martin, supra note 15, at 729; 57 Interp. Rei. 498 (1980).
17. See, 8 C.F.R. Part 208 (1981).
18. See generally Gerety, Sanctuary: A Comment on the Ironic Relation Between Law and
Morality, this volume.
19. See generally House Comm. on the Judiciary, 97th Cong., 2d Sess., Refugee Issues in
Southeast Asia and Europe (Comm. Print 1982); INS Guidelines for Overseas Processing
of Refugees Evaluated, Problems Identified, Refugee Reports, Sept. 7, 1984, at 1-3.
20. N.Y. Times, Mar. 30, 1986, § 1 at 1, col. 4. When proposed asylum regulations finally
emerged in August 1987, they contained no such presumption. 52 Fed. Reg. 32,552 (Aug.
28, 1987).
 UNITED STATES ASYLUM POLICY

LAURA J. DIETRICH

The asylum policy of the United States is a straightforward one. The

United States is morally committed to grant asylum, in accordance with our
laws, to individuals who demonstrate a well-founded fear of persecution in
their own country because of race, religion, nationality, membership in a
particular social group, or political opinion. America's openness to refugees
- people fleeing from persecution in other parts of the world - is one of this
country's most cherished traditions, and it has been enshrined in our nation-
allaw. America is a party to the United Nations Protocol Relating to the
Status ofRefugees. 1 Our own Immigration and Nationality Act (INA), 2 as
amended by the Refugee Act of 1980,3 implements the substance of this
Protocol, and forms the basis for our judicial and legislative procedures on
asylum and refugee admission questions. An individual physically present
in the United States may apply for asylum in this country; 4 every application
is given a careful review. The burden of proof rests with the applicant, who
must demonstrate a well-founded fear of such persecution to be eligible. 5
America's record of fairness and generosity is beyond dispute. In fiscal year
1985 alone, the United States issued immigrant visas to 567,000 persons6
and admitted some 70,000 refugees. 7
At the same time, America's asylum policy makes distinctions that are
critical to our own country's well-being as well as to the prospects of those
individuals around the world seeking protection from persecution. One
distinction is that the United States cannot grant asylum to people who are
not individually targets of persecution but suffer instead from general con-
ditions in their own countries -war, or civil unrest, or economic crisis. 8 Nor
can America grant asylum solely because individuals live under Communist
or oppressive regimes. 9 If America were ever to broaden the definition of a
refugee in this manner, then literally hundreds of millions of people around

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
68

the world could be considered eligible for asylum or refugee admissions. In

order to safeguard the national interest- as well as the interest of people who
are in special need of protection - we have to make careful determinations
on an individual basis about the persons admitted as refugees and those
granted asylum.
The United Nations Convention and Protocol, subscribed to by the
United States and by 100 other countries, lays out a clear definition of a
refugee. A refugee is a person who,

owing to well-founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political
opinion, is outside the country ofhis nationality and is unable, or, owing
to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country
of his former habitual residence, is unable or, owing to such fear, is
unwilling to return to it. 10

A refugee, in other words, is someone who has been singled out for
persecution for one of the five specified reasons. 11
Unfortunately, in many countries, oppressive treatment and desperate
conditions are imposed not just on individuals or groups, but on entire
populations. The United States is sensitive to these problems, and addresses
them every day in its foreign policy. 12 America engages continually in politi-
cal and diplomatic efforts which oppose oppression and aim to reduce
violence and poverty. 13 The plight of nations can best be resolved by political
and diplomatic activity. In contrast, asylum and refugee measures are cap-
able only of aiding individuals.
America has been true to its heritage, by offering through the political
asylum process a measure of protection to individuals suffering from perse-
cution. Anyone who is physically present in the United States and can show
that he or she is a victim of persecution or has a well-founded fear of
persecution may be granted asylum. It is important to note the distinct
difference between asylum and immigration. Asylum is neither an extension
of, nor an addition to, the immigration program. It is a special and narrow
provision that the law makes for individuals in exceptional instances. 14
A great number of people who apply for asylum in the United States each
year are not refugees, that is, not people who are seeking to escape perse-
cution. Rather, they are economic migrants, people who are hoping to make
a better life in America than they can in their country of origin. Many
applicants, when applying for asylum, indicate that they have no fear of
persecution. They fail, in other words, even to claim the condition on which
asylum must legally be based. 15
 69

The United States offers a tempting prospect to people throughout the

world - and particularly to people in our own hemisphere - whose nations
are aftlicted with poverty and civil unrest. They see in the United States a
chance for a better life. In recent years, hundreds of thousands, if not millions
of people have tried to leap-frog over our immigration procedures and their
fellow countrymen who are attempting to conform to such procedures. 16 The
great majority of these people have crossed our borders illegally. Many of
these people, as well as some who entered legally, have tried to remain in
the United States by claiming asylum.
Many persons who come to the United States pass through one or more
countries, neglecting to ask for refugee status, only claiming a fear of persec-
ution when they reach the United States. 17 What, then, is our responsibility?
The international principle of country of first asylum is well established.
Signatories to the Convention and Protocol have agreed that primary re-
sponsibility for consideration of an asylum claim rests with the first country
the asylum seeker comes to, where the flight from persecution could be said
to have ended. 18
Nevertheless, the United States is flooded with asylum seekers who
truthfully state that they worked in another country for some months in order
to earn the money to come here. 19 If we were to say that anyone from a
troubled country may continue on to the United States, simply because
things are better here, we might expect that half of the hundred million people
living between the Rio Grande and Panama could simply move here. The
principle of country offrrst asylum will be weakened if we allow it to be. The
result for the United States as well as Europe would be an increasing
divisiveness amongst ourselves as we argue who should take responsibility
for illegal entrants, country shoppers, stowaways and numerous others.Z0
On the other hand, it may well be that a refugee cannot return to the
country of first asylum, and we should be flexible enough to recognize that
possibility.Z 1 We should also consider the distinctions between transit and
extended stay. Even though an individual could have sought protection from
the first country he came to, it would seem overly harsh to expect that if his
toe touched down in that country, he could not be considered for asylum in
any other. Each case must be examined individually and all factors consid-
ered.
Every individual who applies for asylum in this country, whether he
entered legally or illegally, receives careful consideration and enjoys exten-
sive rights of appeal under the law. Each individual applies to a district
director of the Immigration and Naturalization Service (INS) or to an
immigration judge, or to both. 22 The State Department's Bureau of Human
Rights and Humanitarian Affairs reviews virtually every application and
renders an advisory opinion to the INS district director or immigration judge
70

in each case. 23 That official then acts on the application. If INS denies
asylum, the application can be renewed in an exclusion or deportation
proceeding before an immigration judge. If unsuccessful there, the alien can
appeal to the Board of Immigration Appeals 24 and then to a U.S. court of
appeals or in a few cases to a U.S. district court. 25 Because no applicant is
required to leave the country while his or her application is being considered,
and because of multiple opportunities for administrative or judicial review,
the simple act of applying can buy the individual a good deal of time in the
United States- in many cases, two or more years. 26
Any alien in the United States can apply for asylum, and he incurs no
penalty for a frivolous application. The United States has received an
unprecedentedly large number of asylum applications in recent years. In-
creasingly we must grapple with the same problems of fraudulent and abu-
sive applications that confront many other industrialized nations. This trend
has also been discussed at international meetings and is of great concern to
all countries with a long-established tradition of receiving refugees. 27 In this
country, entire batches of asylum applications are sometimes filed, word-for-
word exactly the same, with only the applicant's name changed, apparently
for the sole purpose of extending the alien's time in the United States. On
other occasions aliens have filed completely blank applications, knowing
that under our laws each will be examined on a case-by-case basis, including
the rendering of an opinion by the State Department and full rights of
subsequent review and appeal.
The recent trend among a small group of American churches, which have
declared themselves "sanctuaries" for Salvadorans and Guatemalans, is
disturbing. 28 The supposed justification- that they are compelled to provide
"protection"- is deceiving. This country guarantees at least four levels of
appeal on asylum claims, and the due process can go on for years. What
then, are they protecting the Salvadorans from? The answer, in reality,
derives from the true purpose of the sanctuary movement. That purpose, as
they have clearly stated, is to oppose U.S. policy in Central America. 29 Lest
sincere Americans be confused about whether sanctuary organizers are
breaking the law, one need only examine the letter of March 23, 1982, from
the Southside Presbyterian Church of Tucson to the Attorney General
announcing its decision to become a sanctuary church. The letter states:
"We are writing to inform you that Southside United Presbyterian Church
will publicly violate the Immigration and Nationality Act 274(a)." 30
A trend that would be perhaps more alarming, however, would be a
growing lack of sympathy around the world for refugees. 31 As citizens are
overwhelmed with illegal aliens, immigrants, refugees, and asylum seekers,
they become confused. A refugee is supposed to be an individual who fled
his country in fear of persecution. There is supposed to be a compelling need,
 71

agreed upon by the international community, that regular admission proce-

dures should be waived. This individual is then accepted on an urgent basis
by a country that extends to him, for the rest of his life if necessary, the
opportunity to live in peace and safety.
How many of today's "new asylum seekers," the subject of this confer-
ence, fit our concept of a refugee -if a refugee is the person I just described?
And who can blame the public for thinking that if everyone is a refugee, then
no one is a refugee?
United States policy towards all people who seek asylum here is firmly
in accord with U.S.law- and our international treaty obligations. Our law
strikes a balance between generosity to people fleeing persecution and our
nation's own capacities and requirements. The United States cannot use its
asylum policy as a means of solving problems elsewhere in the world. Our
country's political and diplomatic responses, along with foreign aid, afford
a more appropriate means to effect positive changes and to improve con-
ditions where they can be improved. The purpose of our law on asylum is
not to exclude people, but to make it possible for the United States to protect
those people who need protection the most: individuals who have a well-
founded fear that they will suffer persecution.

NOTES

1. Done Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267.
2. Act of June 27, 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. §§ 1101 et seq. (1982
& Supp. 1987) (as amended).
3. Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified in scattered sections of 8, 22 U.S.C.).
4. INA § 208(a), 8 U.S.C. § 1158(a) (1982).
5. 8 C.F.R. § 208.5 (1987). See Haitian Refugee Center v. Smith, 676 F.2d 1023, 1042 (5th
Cir. 1982).
6. Wash. Post, July 24, 1986 at A21, col. 1 (figures from INS Immigration Statistics: Fiscal
Year 1985).
7. Actual Refugee Admissions to the U.S. and Ceilings on Refugee Admissions, FY 75-86,
Refugee Reports, Dec. 13, 1985, at 5.
8. See Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982).
9. The old seventh preference provision, INA § 203(a)(7), 8 U.S.C. § 1153(a)(7) (1976),
treated as refugees only people who fled Communist countries or countries in the Middle
East because of persecution or fear of persecution on account of race, religion or political
opinion. Congress repealed this seventh preference in favor of the U.N. definition of
refugee when it passed the Refugee Act of 1980, supra note 3.
10. Convention Relating to the Status of Refugees, July 28, 1951, art. I(A)(2), 189 U.N.T.S.
137, amended by the Protocol Relating to the Status of Refugees, supra note 1, art. 1(2).
11. See Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), affirmed, 107 S. Ct.
1207 (1987), citing Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984); Matter of
Sibrun, 18 I&N Dec. 354, 358 (BIA 1983).
72

12. See 1984 Human Rights Report, excerpted from Country Reports on Human Rights
Practices for 1984, reprinted in 85 Dep't St. Bull. 52, 53 (April 1985).
13. See Shultz, Human Rights and the Moral Dimension of U.S. Foreign Policy, 84 Dep't
St. Bull. 15, 16-17 (April 1984).
14. See D. Martin, Remarks, 1984 Proceedings, Am. Soc'y Int'1 L. 346, 350.
15. See Palmer, Statement Before the Subcomm. on Immigration, House Comm. on the
Judiciary, reprinted in 80 Dep't St. Bull. 75, 78 (August 1980) (Statement on Haitian
asylum seekers by Deputy Ass't Sec'y for Human Rights and Humanitarian Affairs).
16. See Matter ofShirdel, Interim Dec. No. 2958 at 7-8 (BIA 1984); Matter of Salim, 18 I&N
Dec. 311, 315-16 (BIA 1982).
17. See, e.g., Contreras-Aragon v. INS, 789 F.2d 777, 778 (9th Cir. 1986), rehearing en bane
granted, 809 F.2d 1446 (1987).
18. But see Vierdag, The Country of"First Asylum": Some European Aspects, this volume.
19. See, e.g., Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986). Ironically, in that case
the Ninth Circuit upheld petitioner's claim of persecution even though he had lived and
worked in several countries before applying for asylum in the United States.
20. See generally Vierdag, supra note 18.
21. Under guidelines adopted in 1983, INS considers for release, on a case by case basis,
excludable aliens protected by the nonrefoulement provision of the INA,§ 243(h), 8 U.S.C.
§ 1253(h) (1982), but not accepted by any third country. Detention Policy Guidelines in
Exclusion Cases, reprinted in 59 Interp. Rei. 349-50, app. 1 (1982), amended, 60 Interp.
Rei. 536-37 (1983). See also Matter of Gharadaghi, Interim Dec. No. 3001 (BIA 1985)
(an alien's misuse of the immigration laws should be weighed in light of countervailing
equities).
22. 8 C.F.R. §§ 208.3, 208.9 (1987).
23. Id. § 208.7.
24. Id. §3.1(b).
25. INA§ 106, 8 U.S.C. § 1105a (1982).
26. Asylum Adjudication: Hearings Before the Subcomm. on Immigration ·and Refugee
Policy of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 3, 8 (1981) (statement
of Doris Meissner, Acting Commissioner ofiNS).
27. See, e.g., The Problem of Manifestly Unfounded or Abusive Applications for Refugee
Status or Asylum, Conclusion 30 (XXXIV), Report of the Executive Comm. of the High
Commissioner's Programme (34th Sess.), 38 U.N. GAOR Supp. (No. 12A), at para. 97(2),
U.N. Doc. A/34/12/Add.1 (1983).
28. See generally J. Carro, Sanctuary: The Resurgence of an Age-Old Right or a Dangerous
Misinterpretation of an Abandoned Ancient Privilege? 54 U. Cin. L. Rev. 747 (1986);
Gerety, Sanctuary: A Comment on the Ironic Relation Between Law and Morality, this
volume.
29. See, e.g., statement by the Chicago Religious Task Force, quoted in I. Bau, This Ground
Is Holy: Church Sanctuary and Central Americn Refugees 31-33 (1985); see also Carro,
supra note 28, at 769 and n.177.
30. The section of the INA to which the letter refers is codified as 8 U.S.C. § 1324(a)(1982)
(later amended by§ 112 of the Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, 100 Stat. 3359).
31. Senator Alan Simpson, for example, has warned of the risks of "compassion fatigue."
Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the
National Interest: Final Report and Recommendations 407, 409 (1981) (Supplemental
Statement of Senator Simpson).
 THE COUNTRY OF "FIRST ASYLUM":
SOME EUROPEAN ASPECTS

E.W. VIERDAG

In a world in which asylum seekers and refugees number well in excess

of ten million, traditional international law concepts of asylum come under
a lot of pressure. Developed, industrialized states look for means to
constrain the influx of asylum seekers. The concept of "irregular move-
ments," discussed earlier in this Colloquium, may serve to produce a device
of large-scale constraint. A similar device, in use for a much longer period
and presumably operating on a somewhat smaller scale, may be found in the
traditional rules about the "country of first asylum." 1
States often brandish this concept in attempting to avoid responsibility for
considering certain claims to refugee status and the usually associated appli-
cations for asylum. Under the "country of first asylum" rubric, a state may
avoid determining the merits of the claims altogether, but it would not have
to dispute that the applicants may have good reasons for receiving asylum
- somewhere. The concept is used to establish instead that such determi-
nations are somebody else's business: the business of the country that first
harbored the claimants, the country of first asylum. In its most negative
manifestation, the concept applies whether or not the persons turned away
realistically can return to the asserted country of first asylum. When govern-
ments act in this manner, we often encounter the aptly named phenomenon
of "refugees in orbit." Unwilling to send such asylum seekers back to the
country of origin (the only country clearly obligated to take them in), govern-
ments have nonetheless proven capable of shuttling them back and forth
among airports, waiting for some country to relent and admit the individuals
while the merits of the claim are considered. 2

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
74

I.

I have been asked to present "the" European perspective on the exception

to the grant of asylum that derives from the concept offrrst asylum. It is trite
but true to say that Europe is in many ways a divided continent. We must
not be surprised to see divergent asylum practices among Western European
countries, and differences also with respect to the concept of frrst asylum.
It is important to emphasize here that, at least so far, first asylum practices
are a matter of municipal, not international law.
Several factors cause disparities between the asylum policies in Western
Europe and hence between "country offirst asylum" conceptions. First of all,
the geographical position of countries in relation to the areas from which the
asylum seekers come provides certain incentives for a broad or narrow con-
ception. Consider in this respect the location of such countries as Austria and
Italy. They are positioned to be the first point of arrival for a great many asylum
seekers reaching Europe from the east or south, but they do not expect to
remain the ultimate country of asylum for more than a fraction of those who
arrive. Legalfactors also produce differences. To begin with, some countries
have· legislation on the subject offrrst asylum, while others have none.
In Europe, the legislation of Austria, Belgium, Denmark, the Federal
Republic of Germany, Sweden and Switzerland contains provisions on first
asylum. Other states, such as England, France and the Netherlands have no
legislative rules on the subject, although they may have rules that appear in
regulations or other lower ranking ordinances. I refer here to the nine
European countries about which I could obtain recent, specific information
on first asylum through the Legal Network of the European Consultation on
Refugees and Exiles (ECRE). 3
Even if it were possible, it might be tedious to discuss the laws or practices
of nine countries. I have therefore selected three that might be seen to
represent the spectrum from strict to liberal positions with regard to first
asylum.

II.

Before beginning that review, one more introductory remark may help
place it in perspective. In the law of the United States, the question of frrst
asylum is sometimes regarded as affecting refugee status. That is, a person
who has found first asylum elsewhere may be regarded as having lost his
claim to recognition as a refugee. Construing earlier refugee legislation, the
Supreme Court once ruled that "the physical presence [of a refugee claimant
 75

in the United States] must be one which is reasonably proximate to the flight
and not one following a flight remote in point of time or interrupted by
intervening residence in a third country reasonably constituting a termi-
nation of the original flight in search ofrefuge." 4 Stay in a third country was
seen as affecting refugee character.
In my opinion, this is the wrong way to look at the issue. Refugee character
should be judged on the basis of the threat the person faces in the country
of origin, not his relation to other countries. If he has a "well-founded fear
of persecution" (the essential test under the 1951 Geneva Convention 5 ), then
he deserves recognition as a refugee. The threat in the home country may
last a lifetime, no matter where or how often he may have found protection
in other countries. This does not mean that possible first asylum elsewhere
is irrelevant. But under the proper perspective, such protection should have
a bearing on asylum, rather than on refugee status. Asylum, strictly speaking,
is not governed by the 1951 Geneva Convention, and factors affecting
asylum should not control the operation of the Convention within its proper
sphere. 6 A state might well conclude that it will not offer asylum to an
individual because of the protection he has received or might receive in
another state. But it need not then pretend that he is not a refugee. Recog-
nition as a refugee does not entail entitlement to asylum. 7
The Refugee Act of 1980 appears to restore the proper perspective,
applying the notion of "firm resettlement" in a foreign country to the issue
of asylum rather than refugee character. 8 Although administrative author-
ities apparently persist, on occasion, in using the fact of passage through
another country as a reason to discount refugee character, several court
decisions have attempted to correct this practice. 9 I shall come back to these
matters later, in connection with a curious decision of the French Conseil
d'Etat.

III.

Before we can look at the spectrum of practices applying the notion of first
asylum, we must identify the standard by which we shall judge a country's
practice as "strict" or "liberal" vis-a-vis a person who has come through one
or more third countries. As no European country considers itself to be an
immigration country, the American standard of "not firmly resettled in any
foreign country" does not seem to be an appropriate standard. The stan-
dards reflected in Conclusion 15 (XXX) of the UNHCR Executive Com-
mittee, on the subject of "Refugees Without an Asylum Country," appear
much more suitable. The crucial language of this well-known provision runs
as follows:
Regard should be had to the concept that asylum should not be refused
76
solely on the ground that it could be sought from another State. Where,
however, it appears that a person, before requesting asylum, already has
a connexion or close links with another State, he may if it appears fair
and reasonable be called upon first to request asylum from that State. 10

The general standard is useful, but the language leaves many questions
unanswered. We owe this language to the ill-fated 1977 UN Conference on
Territorial Asylum. 11 It can first be found in an amendment to draft article
1, tabled by Ghana in the Committee of the Whole. This amendment was
later withdrawn in favor of an identical Danish amendment, which was
adopted (before the conference broke up, well short of its goal of drafting
a complete treaty). 12 Two years later the Executive Committee of UNHCR
agreed that Conclusion 15 should contain a paragraph in line with the draft
article just quoted. 13 Of course, it is not a well framed provision; it leaves
open what are "close links," what is "a connexion," and how both elements
relate. But it lays down, nevertheless, some sort of minimum requirement,
to be worked out by national authorities. Those authorities have spelled out
various factors that are usually taken into account in determining these
matters: for example, length of stay in third country or countries; contact
with local authorities, if any; the type or degree of"protection" found there. 14
Rather than discuss these factors in the abstract, I should like to look instead
at some concrete examples.

A.
The Swiss Act on Asylum of 1979lays down in Article 6 that a request
for asylum will normally be denied if the asylum seeker has stayed for "some
time" in a third country to which he can return. The Swiss Asylum Ordi-
nance says that "some time" means twenty days.
Article 19 of the Act specifies that an asylum seeker can stay in Switzer-
land provisionally during the procedure, but may be expelled if he can travel
on to a third country where he has friends or relatives, or where he has been
for "some time." One would expect the "some time" of Article 19 to be the
same as in Article 6 - twenty days - but this is not so. In practice it appears
that even a sojourn of 24 hours in a third country is enough for that country
to be regarded as a country of first asylum, thus potentially justifying removal
in accordance with Article 19. 15
The countries that border on Switzerland are considered by the Swiss to
respect the rule of nonrefoulement. Asylum seekers who have stayed in a
neighboring country are returned there. Bilateral treaties with France,
Austria and Germany oblige these states to take the asylum seekers back if
their entry into Switzerland was illegal. 16
 77

At Swiss airports, the country of departure is regarded as a country offrrst

asylum if it is not the country of origin. The ECRE report on which I mainly
rely observes that in these circumstances, the asylum seeker who wishes to
avoid removal to that third country "has to establish some evidence that he
is persecuted not only in his country of origin but also in the third country." 11
Hence the third country is regarded as affording first asylum provided only
that it respects the principle of nonrefou/ement and abstains from persecuting
the asylum seeker.
We all know that the notion of"protection" in international law in general,
and in the field of asylum in particular, is an elusive and complex one. 18 Here,
however, we come across a highly curious notion of protection: protection
is absence of persecution. I find that implication hard to accept.

B.
In sharp contrast to the Swiss picture stands that of the German landmark
decision of the Federal Administrative Court of June 5, 1984. 19 Germany is,
as far as I know, the first Western European State to have a provision on
first asylum in its legislation: Article 28(2) of the 1965 Aliens Law. 20 Since
1982 the matter is governed by the Act on Asylum Procedure, which is
intended to simplify and shorten the procedure. 21 Article 2(1) of the latter
Act says that aliens who have already found protection in another State will
not be recognized as asylum seekers. Article 2(2) specifies that an alien has
found protection against persecution if he can stay permanently in another
state where he is not threatened with persecution and does not have to fear
refoulement. On its face this may not appear so different from the Swiss
standards. But the courts have decisively shaped the way this law applies
in practice.
The judgment of June 5, 1984, concerns a national of Mghanistan, a
member of the Olympic wrestling team that was to have represented his
country at the games in Moscow, summer 1980. In protest against the Soviet
occupation, he fled Mghanistan with some like-minded friends in June 1980,
shortly before the team was to leave for Moscow. For several months he
stayed in Pakistan and India; he flew from New Delhi to Germany in
January 1981.
His request for asylum was turned down by the German authorities on
the ground that he had found protection elsewhere in the sense of the law.
He could stay permanently in India or Pakistan, and there he faced no
danger of refoulement. In the view of the administrative authorities, the fact
that he could not enjoy in those countries all the rights and privileges
provided for in the 1951 Geneva Convention afforded in itself no reason to
grant asylum in Germany.
The Federal Administrative Court confirmed judgments of lower courts
78

that had rejected this reasoning. It held that the right of asylum as granted
in the Constitution22 does not lapse simply because asylum could have been
found elsewhere, and the law on asylum does not provide for such lapse. The
statute specifies only one aspect of treatment that will be regarded as
"protection elsewhere": the stay in the third country must not be only
temporary. Other aspects are left to the courts to define. The Federal
Administrative Court then went on to do just that. It ruled that first asylum
must be granted officially, thus implying that the asylum seeker will usually
have to have applied for it. At least the individual must have intended to enter
into contact with the local authorities and to have their cooperation. The
asylum seeker, under this ruling, is free not only to choose the neighboring
country where he goes first but also to choose the country where he will
settle. In essence, asylum must then be granted formally, in accordance with
local law or practice.
But even asylum thus granted need not in all cases be considered first
asylum in the sense of the German Law on Asylum. The court goes on to
formulate further, material requirements: asylum must imply a measure of
freedom of movement as well as the possibility to search for a basis upon
which to build a new life according to local conditions. This cannot be judged
in the abstract, but must be considered case by case. But the court does
provide at least one general guideline: if the asylum seeker is exposed in the
first receiving state to death through starvation or epidemics, or if he has
nothing to expect there but to vegetate for an undetermined stretch of time
at a minimal subsistence level, then as a refugee he has not yet found shelter
that suffices from the point of view of asylum.
I have discussed this judgment at some length because it sets standards
that, as far as I know, make Germany the most liberal Western European
state with respect to first asylum. It would seem that the judgment comes
very near to saying that shelter elsewhere will not be regarded as adequate
first asylum unless it is identical to asylum in Germany itse1f23 - an impossi-
ble requirement that would rule out the very concept of first asylum, as it
could not be fulfilled anywhere but in Germany.

c.
Needless to say, the other European countries about which I have specific
information take positions somewhere between the two I have just discuss-
ed. Let me stress, however, that these positions are not necessarily fixed
ones: several signs suggest that developments in Europe are moving in a
restrictive direction. Thus in Germany, which I just described as probably
having the most liberal standards vis-a-vis persons coming via one or more
third countries, there are plans to replace Article 2(2) with a provision that
introduces a presumption - rebuttable, it is true - that a sojourn of three
 79

months in a third country means that adequate protection was found there. 24
New policies, such as described earlier in this Colloquium by Michiel den
Hond, may further ease the criteria by which first asylum is measured.
However that may be, several European states still have rather liberal first
asylum policies. I should like to single out France before I conclude. Accord-
ing to the ECRE report on France, the situation is simply that an asylum
seeker cannot be denied asylum on the basis that he has transited through
one or more third states. His time there does not constitute "transit,"
however, if he holds a valid title of sojourn.
There is a quite remarkable judgment of the French Conseil d'Etat on
these questions, in the case of Mr. B. Conte, a national of Guinea. This
judgment, to which I referred earlier, was handed down on January 17,
1981.25 Mr. Conte had left his country in 1971; he lived in Senegal unti1197 5
and went from there to France. The Commission des Recours had turned
down his request for asylum on the sole ground of his stay in Senegal. This
the Conseil d'Etat did not accept. It does not follow, the Conseil ruled, from
his prolonged stay that the person in question could be deprived of his
refugee character. This much is of course true. The real issue, however, was
not refugee character, but rather whether he would be allowed asylum in
France. Nevertheless, the Conseil d'Etat then proceeded to solve the prob-
lem on the basis of the 1951 Geneva Convention, which is not an instrument
on asylum at all, as I pointed out earlier. The Conseil followed the conclusion
of the "commissaire du gouvernement" that the Convention contains no-
thing to support a policy of refusing refugee status in case there is a country
of first asylum. In a case like that of Mr. Conte a request can only be turned
down under one of the exclusion clauses of the Convention. The only one
that could apply - according to the "commissaire" - is Article 1, sub-para-
graph E of the Convention:

This Convention shall not apply to a person who is recognized by the

competent authorities of the country in which he has taken residence
as having the rights and obligations which are attached to the pos-
session of the nationality of that country.26

The case was referred back to the lower instance for further examination
under this standard.
In theory this decision, which abruptly ended an established practice by
the French administrative authorities of almost thirty years, could result in
the most formal test possible, with the result that first asylum would almost
never disqualify asylum seekers in France. But it seems not to have worked
out that way. According to Tiberghien, the Commission des Recours no
longer applies the first asylum exception the way it used to in denying refugee
80

status, but it may still find grounds on which to deny benefits in France to
persons who had extensive rights in another country before coming there.
Tiberghien points to the very restricted language of the Conseil's holding,
which invalidated a denial of refugee status based on the sole ground of
sojourn in another country. 27 However that may be, in my opinion the
decision shows that application of the Convention to questions of asylum
- and that is what the Commission des Recours and the Conseil d'Etat both
did - leads to awkward results. Perhaps those results cannot be avoided
without a change in the French legislation.

IV.

If there is a forum in Europe where something like a truly European

perspective on "first asylum" should emerge, it is the Council of Europe. The
Council has some achievements to its credit in the field of refugees. For
example, it concluded work in 1959 on the European Agreement for the
Abolition ofVisas for Refugees, 28 and in 1980 on a European Agreement on
the Transfer of Responsibility for Refugees. 29 But neither instrument treats
questions of asylum. The numerous Resolutions concerning asylum adopted
by the Committee of Ministers likewise contain nothing with regard to the
concept of the country of first asylum.
But the Council has not ignored the question. In 1977, after the UN
conference on territorial asylum ended in failure, the Council of Europe
opened its efforts in this field by sending a questionnaire to its member states,
asking them a number of specific questions on how they dealt with asylum
requests when it might be claimed that another country was the country of
first asylum. An Austrian lawyer was allowed, confidentially, to study the
answers given to these questions by thirteen of the member states. He has
reported, not surprisingly, that the answers show a "multi-colored picture,"
and that one cannot conclude that there existed anything even approaching
uniformity in state practice. The answers instead highlighted the latitude of
discretion available to the authorities. 30
Still, one year later, in 1978, the Ad Hoc Committee on Legal Aspects of
Territorial Asylum and Refugees of the Council of Europe (usually referred
to as "CAHAR") started its work on a European "Draft Agreement on the
Responsibility for Examining an Asylum Request." As is clear from this title,
the draft was intended to replace the largely negative notion of first asylum
by a positive obligation vis-a-vis asylum seekers. Rather than simply defining
a concept that would allow a given state - perhaps many states - to refuse
responsibility for considering an asylum request, the effort was made to
develop criteria that would allow all concerned to identify the state that
should consider the request.
 81

·To date, the effort has not been crowned with success. But we must not
be surprised, as the asylum policies of the states involved have not become
more harmonized than they were ten years ago. It has appeared impossible
to reach agreement, for example, on the question how long an asylum seeker
may have been "en route" in one or more third countries before that third
country, and not the country where the individual currently finds himself,
incurs the responsibility to consider the request. {It appears that the
countries of likely first arrival, such as Italy and Austria, wanted a lengthy
en route period before such responsibility attached; more distant states
wished for a shorter period.) Still, the work on the drafting of a European
instrument on the question of first asylum continues in the Council of
Europe.
Until recently there was hardly any information on this draft available.
Work in the Council usually remains confidential until its results are agreed
upon by the Committee of Ministers. But in April 1985, a seminar on
"Responsibility for Examining an Asylum Request" was held in Lund,
Sweden. The proceedings ofthis seminar have recently been published. 31
They contain a statement by Dr. Marie-Odile Wiederkehr, Head of the
Public Law Division of the Council of Europe, which clarifies a number of
points. 32 She observes that from 1977, when the question of "first asylum"
was taken up by CAHAR, until1981, only a small amount of preparatory
work was completed (the questionnaire to member states mentioned earlier).
CAHAR adopted a final draft only in 1984. Dr. Wiederkehr sketches the
"broad principles" of this draft as follows:
The State to which the request is presented normally has the obligation
to examine an asylum request presented at its frontier or in its territory. The
obligation of the State cannot be escaped on the grounds that:
- asylum could be sought in another State;
- the asylum seeker has not arrived directly from the country of perse-
cution;
- the asylum seeker has not complied with a requirement that a request
be submitted in a certain period.
In addition the proposal states that the wishes of the asylum seeker shall as
far as possible be taken into account. ·
A second part of the draft relates to cases where the obligation of examin-
ing an asylum request falls not on the state to which the request has been
presented but on another state. There are three cases: {1) the applicant has
been authorized to reside on a permanent basis in the territory of another
state; or he has other strong links, of two specified types, with another state
party; {2) close members of the family of the applicant are authorized to
reside permanently in another state; or (3) the applicant is authorized to
82
exercise a gainful activity in another state party otherwise than on a purely
temporary basis. This type of provision is supplemented by a parallel
obligation of admission or readmission incumbent on the other state party
at the request of the state that received the asylum request. That other state
is then also obliged to examine the asylum request. 33
Questions remain, which Dr. Wiederkehr discusses. What about an asy-
lum seeker who has the specified links, but with a state not a party to the
instrument? On the one hand, this state might afford real protection; on the
other hand, as a nonparty it cannot be bound by the rule on readmission.
The draft agreement she discusses solves the problem by stating that it does
not apply in such a case. This, of course, will restrict the field of operation
of the instrument considerably.
Another problem is the relation between the new instrument and the
various bilateral "refoulement" agreements, referred to above. 34 The draft
agreement provides that its terms shall prevail over those of the bilateral
agreement. But if the asylum request is denied by the state thus obligated to
consider it, then the refoulement agreement could be applied. Further prob-
lems concern asylum requests at the border, as well as the length of stay in
a third country. Dr. Wiederkehr reports that a tentative compromise was
reached in CAHAR, but with many lingering problems and objections. It
specified that a state party shall not be obliged to examine an asylum request
made by a person who has entered the territory illegally or is at the frontier,
if the applicant has stayed in another state party for at least 100 days with
the consent of the authorities of that country. This period may be reduced
by bilateral agreement to 30 days but not less. 35 She observes, however, that
this provision raised many questions in CAHAR, and was not accepted by
the "interested states." 36 Therefore no draft agreement has yet been
approved by the Committee of Ministers.

v.
In light of the recent developments within UNHCR concerning "irregular
movements," it seems quite possible that the debate within the Council of
Europe about the precise contours of the concept of the country of first
asylum will be overtaken by events. 37 In other words, the Council of Europe
may find that its draft instrument, if someday put before member states for
adoption after resolution of the internal debates that still impede effective
action, will no longer be regarded as a suitable solution to these questions
-because other, more potent devices of constraint on the influx of asylum
seekers will have been developed.
NOTES
1. There is little literature in English on the doctrine of the country of first asylum as such;
 83

see, however, G. Goodwin-Gill, The Refugee in International Law 52-56 (1983). The
subject as a whole has been dealt with thoroughly in the doctoral dissertation of Dr. Franz
Bethauser, Der Anderweitige Schutz vor Verfolgung im Asylrecht (J.W. Goethe
Universitat, Frankfurt, 1983).
Other constraining devices are numerous. They include the so-called "domestic flight
alternative." In some circumstances, a person genuinely threatened in his home town or
province might be able to find reasonable security by moving to other portions of the
country - an alternative of "domestic flight." If so, one might say that he need not be
recognized as a refugee, nor granted asylum, if he chooses instead to flee to another
country. Although the theory is sound, immigration authorities are sometimes too ready
to find that secure alternatives exist within the home country. See generally G. Kofner
& P. Nicolans, Grundlagen des Asylrechts in der Bundesrepublik Deutschland 360-384
(1986).
2. See generally Melander, Refugees in Orbit, 16 A.W.R. Bulletin 59-75 (1978).
3. This organization links private bodies that assist refugees and asylum-seekers in various
countries, and it has published a helpful book summarizing national laws and practices:
ECRE, Asylum in Europe: A Handbook for Agencies Assisting Refugees (3d ed. 1983).
I am grateful to Mr. Alexander Takkenberg of the Netherlands Refugee Assistance
Organization (VVN) for supplying me with materials from ECRE. The various reports
on first asylum practices were published in August 1986 in a booklet titled European
Lawyers Workshop on the Principle of "Country of First Asylum" (1986) [hereinafter
ECRE Booklet].
4. Rosenberg v. Yee Chien Woo, 402 U.S. 49, 57 (1971) (quoting with approval from the
ruling by the INS district director). See Evans, Political Refugees "Not Firmly Resettled"
As in Section 203(a)(7) of the Immigration and Nationality Act of 1952 as Amended, 66
Am. J. Int'l L. 101-107 (1972).
5. Convention relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, T.I.A.S. No.
6577, 189 U.N.T.S. 137; supplemented by Protocol relating to the Status of Refugees, Jan.
31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577,606 U.N.T.S. 267. See l A. Grahl-Madsen,
The Status of Refugees in International Law 173-216 (1966).
6. See generally Vierdag, "Asylum" and "Refugee" in International Law, 24 Neth. Int'l L.
Rev. 287 (1977).
7. See, e.g., G. Goodwin-Gill, supra note l, at 101-04; T. Aleinikoff & D. Martin, Immi-
gration: Process and Policy 648-49 (1985).
8. See Immigration and Nationality Act (INA) §§ 207(c)(1), 209(bX4), 8 U.S.C.
§§ 1l57(c)(l), l159(b)(4) (1982), added by the Refugee Act of 1980, Pub. L. No. 96-212,
94 Stat. 102; 8 C.F.R. §§ 207.1(b),(c), 208.14 (1987).
9. See, e.g., Najaf-Ali v. Meese, 653 F.Supp. 833 1836 (N.D. Cal. 1987); Damaize-Job v.
INS, 787 F. 2d 1332, 1337 (9th Cir. 1986). See also Dietrich, United States Asylum Policy,
this volume.
10. Refugees Without an Asylum Country, Conclusion l5(XXX), para. h(iv), Report of the
Executive Comm. of the High Commissioner's Programme (30th Sess.), 34 U.N. GAOR
Supp. (No. l2A) at 17, U.N. Doc. A/34/12/Add. l (1979).
ll. For a general account of that conference, see A. Grahl-Madsen, Territorial Asylum 61-68
(1980).
12. See U.N. Doc. A/CONF.72/C.l/L.104/Add.l, at 6-7.
13. Report of the Sub-Committee of the Whole on International Protection, Executive
Comm. of the High Commissioner's Programme (30th sess.) para. 13, U.N. Doc.
A/AC.96j57l (1979).
14. See, e.g., Executive Comm. of the High Commissioner's Programme (30th Sess.), Note
 84

mi Asylum: Refugees withe>ut an Asylum Country, U.N. Doc. EC/SCP/12 (1979).

15. ECRE Booklet, supra note 3, at 64-66.
16. It would exceed the scope of this paper to discuss the effect of such so-called "refoulement
agreements" on asylum-seekers. But it would seem that their effect is limited, as they
normally contain very short terms for their operation. See 2 A. Grahl-Madsen, The Status
of Refugees in International Law 317-322 (1972).
17. ECRE Booklet, supra note 3, at 67 (emphasis added).
18. The definition of"asylum" in the authoritative Resolution of the Institute oflnternational
Law on "Asylum in Public International Law" adopted in Bath in 1950 (Article 1: "...
'asylum' means the protection which a State grants on its territory ... to a person who
comes to seek it") does not contain a further definition of "protection." But it surely
suggests security, a true shelter. See 43 lnstitut de Droit International, Annuaire 376
( 1950).
19. ECRE Booklet, supra note 3, at 48-52, discussing Judgment of June 5, 1984, Bundesver-
waltungsgericht, reprinted in 2 Entscheidungssam1ung zum Auslander- und Asy1recht
(EZAR) § 205 No.2 (1986).
20. Aus!G, 28 Apr. 1965: [1965) BGBI I, 353.
21. Asy!VfG, 16 July 1982: [1982) BGBI I, 946.
22. Article 16(2) of the Grundgesetz (Basic Law) provides: "Persons persecuted for political
reasons shall enjoy the right of asylum." 3 A. Peaslee, Constitutions of Nations 364 (3d
ed. 1968).
23. Cf. § 7(2) Asylgesetz und der "Anderweitige Schutz" des Asylwerbers, 34 Osterr. Z. Off.
Recht und Volkerrecht 305, 327 n. 110 (1984).
24. Changes of this sort were in fact enacted in November 1986, but the German courts have
not yet ruled on the exact application of the new provision nor on its compatibility with
Article 16(2) of the German Basic Law. See Wollenschliiger & Becker, Das Gesetz zur
Anderung asylverfahrensrechtlicher, arbeitserlaubnisrechtlicher und ausliinderrechtlich-
er Vorschriften, 1987 Zeitschrift fur Aus1iinderrecht und Ausliinderpolitik (ZAR) 51.
25. A summary of the judgment is in 1981 Receuil des Decisions du Conseil d'Etat 20-21.
Short discussions of the decision appear in F. Tiberghien, La protection des refugies en
France 37-38 (1984), and in Julien-Laferriere [annotation on the decision], 1981 Journal
du Droit International (C1unet) 560-566. The text of the summary is reprinted in
Tiberghien, at 134, and in the Journal at 558-559.
26. Tiberghien, supra note 25, at 37, 38; Julien-Laferriere, supra note 25, at 563; referring to
Convention, supra note 5, art. 1(E).
27. Tiberghien, supra note 25, at 38.
28. Entered into force Sept. 3, 1960, Europ. T.S .. No. 31, 376 U.N.T.S. 85.
29. Entered into force Dec. I, 1980, Europ. T.S. No. 107, 20 I.L.M. 1391 (1981).
30. Uibopuu, supra note 23, at 308-09.
31. Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Responsibility for
Examining on Asylum Request (Report No. 1, Lund, 1986).
32. ld. at 17-21.
33. ld. at 19.
34. See note 16 supra.
35. Raoul Wallenberg Institute, supra note 31, at 21.
36. Id.
37. See Jaeger, Irregular Movements: The Concept and Possible Solutions; den Hond,
"Jet-Age Refugees": In Search of Balance and Cooperation, this volume.
 II

NEW APPROACHES
WITHIN AND WITHOUT
THE LAW
 THE PRINCIPLE AND PRACTICE OF TEMPORARY REFUGE:
A CUSTOMARY NORM PROTECTING CIVILIANS FLEEING
INTERNAL ARMED CONFLICT

JOAN FITZPATRICK HARTMAN

A large proportion of the "new asylum seekers" with whom this Collo-
quium is concerned are not technically seeking "asylum" at all, if by that term
we mean the formal concept of political or "durable" asylum granted at the
discretion of the asylum state. In situations of mass influx triggered by fears
of generalized violence stemming from internal armed conflict, fleeing civil-
ians are seeking, and to a great extent receiving, temporary refuge in the
states to which they flee. This temporary refuge resembles the traditional
refugee law concept of nonrefoulement in that it consists essentially of a ban
on forced repatriation. But unlike nonrefoulement (which bears a close
relation to Article 33 of the 1951 Refugee Convention 1) the norm of tempora-
ry refuge is not formally codified in a universal treaty. 2 Treaties have thus
played a lesser role in the evolution of the customary norm of temporary
refuge than for the customary norm of nonrefou/ement.
Appreciating actual state practice - the key source of customary inter-
national law - is essential in grasping the recently crystallized norm of
temporary refuge. This consistent state practice has occurred in recent years
in many parts of the world, against a backdrop of authoritative statements
of its obligatory character by intergovernmental organizations, groups of
experts, and state representatives. This practice can be well-documented and
is impressive in its consistency and extent. It is not possible to recount that
practice or even to summarize it adequately in a brief paper of this nature. 3
At appropriate points, however, I will cite examples that help to define the
contours of the norm and to establish its obligatory character.
The basic principle behind this practice is self-evident - the humanitarian
necessity of respecting the self-preservation needs of endangered civilian
victims of internal armed conflict. This rationale for the norm, and its
triggering criterion of internal armed conflict, clearly and helpfully identify
it as a norm of customary humanitarian law, rather than as an expansion of
concepts of refugee law. Unlike modem refugee law, which is premised on
persecution or de jure lack of protection by the country of origin,4 temporary
refuge is premised on a basic notion of humanitarian law: civilians are

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
88

entitled to an international standard of protection because their state,

distracted by its conflict, is unable to provide them with de facto protection.
Unlike a grant of asylum, a grant of temporary refuge implies no judgment
upon a government's intentions towards its citizens. Instead it merely
recognizes the government's practical difficulties.
Nevertheless, the United Nations High Commissioner for Refugees
(UNHCR) has recently begun to speak of temporary refuge as a component
included within the customary principle of nonrefoulement - a principle
primarily established to protect refugees fleeing individualized persecution
under strict refugee law standards. 5 Indeed, there is a pervasive tendency to
label the seekers of temporary refuge as "refugees," though they clearly do
not fit the criterion of individualized persecution. It is not clear whether this
is a conscious strategy rather than simply an unconscious attachment to the
familiar. UNHCR may rely upon the terminology and conceptual frame-
work of refugee law partly for institutional and partly for strategic reasons.
Such reliance is understandable in light of the UNHCR's extensive involve-
ment both in formal articulations of the new norm and in providing encou-
ragement and material support for consistent state practice. In labeling
seekers of temporary refuge as "refugees" or "asylum-seekers" and merging
the norm of temporary refuge into an expanded customary rule of non-
refoulement, the UNHCR is, to be sure, dealing in concepts already ingrained
in international consciousness. And it may be attempting to clothe the newer
norm in the legitimacy of the longer-established principles. But this strategy
may prove to be counterproductive, as the current practice of the United
States with respect to Salvadorans and Guatemalans suggests.
In this brief paper, I hope to provide a basic understanding of the norm
of temporary refuge and the rationale for my conclusion that it has become
a binding rule of customary international law. Second, I wish to urge its
wider recognition as a norm of customary humanitarian law, based on a belief
that in conceptual terms it more properly resides in that realm rather than
in the somewhat dangerous thicket of refugee law. And third, I wish to
explore the difficulties in the practical domestic implementation of this
obligatory rule of customary international law, taking the current sanctuary
prosecutions and forced repatriation of Salvadorans by the United States
as an illustration.

I. FOUNDATIONS OF THE NORM, AND SOME ASPECTS OF ITS OPERATION

The brief compass of this paper does not permit recital of all the evidence
of consistent state practice. But I can give a sense of its geographic scope
by mentioning some examples. As is widely known, there are 2.9 million
 89

Mghans in Pakistan and 1.5 million in Iran, who have fled the intense and
protracted internationalized internal armed conflict in Mghanistan. 6 On the
Thai-Kampuchean border are camps containing 250,000 Kampucheans
who have fled the fighting between the Vietnamese-backed government and
the coalition of Kampuchean rebels. 7 Camps in Costa Rica and Honduras
house tens of thousands of Salvadorans, while camps in Mexico provide
refuge for large numbers of Guatemalans. 8
Temporary refuge is an especially widespread and consistent practice in
Mrica, owing to the proliferation of internal conflicts, porous borders, and
a tradition of receptivity, even among extremely poor countries such as
Djibouti. 9 India has received over 130,000 Tamils fleeing the fighting in Sri
Lanka. 10 Smaller scale examples also exist, such as Papua New Guinea's
grant oftemporary refuge to 10,000 persons fleeing conflict in the Irian Jaya
region oflndonesia. 11 Indeed, one need only look for internal armed conflict
in the world, a depressingly easy thing to find, in order to discover displaced
civilian populations, many of whom will be spurred by fear to flee familiar
surroundings and seek safe haven across international borders.
What does it mean for these war victims to receive "temporary refuge"?
In the simplest terms, temporary refuge means a prohibition on forced
repatriation so long as conditions in the country of origin remain unsafe. This
formulation of the norm has been repeatedly stated by organs of the
UNHCR, which have also noted that the protection these refuge-seekers
receive does not necessarily include the full range of treatment provided for
in the 1951 Convention and the 1967 Protocol. 12 Indeed, while the UNHCR
insists, in increasingly peremptory terms, upon the absolute nature of this
prohibition on forced repatriation of civilian war victims, even referring to
it as a rule of jus cogens, 13 the UNHCR also candidly recognizes that
defining the legal status of these refuge-seekers still requires greater elabo-
ration and clarity. 14
If we tum to actual practice by states receiving an influx of civilians fleeing
directly from internal armed conflict, we find an extremely high degree of
compliance with the ban on forced, involuntary repatriation. A single, tragic
instance of forced repatriation of 40,000 Kampucheans by the Thai govern-
ment in 1979 stands as the sole example of an official high-level policy in
open, undisguised breach of the norm by a border state. 15 It is highly
significant that international protest and pressure led the Thai government
to reverse its policy promptly and to revert to the provision of temporary
refuge for the victims of the protracted Kampuchean war. 16
This is not to say that the world has avoided isolated objective breaches
of the norm in other contexts. For example, approximately thirty Salvado-
rans who had sought refuge in Honduras were kidnapped or killed in 1981
by Salvadoran security forces, apparently operating with the acquiescence
90

of the local Honduran military. One attempted abduction was foiled by the
intervention of international observers who happened fortuitously to be on
the scene. 17 Though these practices have reportedly ceased, their proffered
justifications are of interest. Hostility to Salvadorans in Honduras was
officially justified on the ground that the camps were havens for Salvadoran
rebels, using Honduran territory as a sanctuary from which to launch raids
into El Salvador. 18 Needless to say, the Honduran government's active
hostility to such use of its territory by rebels has been selective, though its
public attitude even toward the Nicaraguan contras has certainly been ambig-
uous. Papua New Guinea's justifications have followed a similar line. That
government at one time selectively repatriated Irian J ayans found to be
active members of insurgent groups. 19
Though this practice of justifying selective returns in armed conflict si-
tuations is not extensive enough to draw any firm conclusions, one might
ultimately deduce that the norm of temporary refuge protects only civilians
and not combatants. Such a distinction, however, does not diminish the
norm nor cast doubt upon its character as a norm of humanitarian law,
which is filled with distinctions between combatants and those hors de
combat, including civilians. The sheltering of insurgents may be legitimately
perceived as a hostile and provocative act by the state in conflict, and states
of refuge have a valid interest in avoiding such entanglement. The Executive
Committee of the UNHCR's Programme was unable for many years to agree
on an absolute ban on armed attacks on refugee camps, precisely because
some states fear the use of camps as sanctuaries for armed insurgents. 20 On
the other hand, some states tolerate the presence of insurgents among
populations receiving temporary refuge. Honduras does so with respect to
the contras and certain Miskito groups, and Pakistan tolerates Afghan
insurgents, who move with some freedom across the border. 21
Assuming we are dealing with civilians in a bordering state, what does this
temporary refuge consist of in practical terms? It takes no consistent materi-
al form. In some states such as Somalia and portions of Pakistan, victims
of internal armed conflict have been permitted to integrate into the local
communities and to pursue their livelihood with a great degree of freedom. 22
However, seekers of temporary refuge are more likely to find themselves in
camps of some sort, generally administered by intergovernmental organi-
zations and voluntary agencies. As most will have entered without comply-
ing with immigration formalities and will not qualify for the material benefits
of refugee status under the 1951 Convention and 1967 Protocol, they may
find their lives economically and physically restricted. Although the
UNHCR engages in a great deal of work concerning protection and sol-
utions for these refuge-seekers, more needs to be done by the international
community to define their legal status. At a minimum, one can conclude from
 91

the state practice that seekers of temporary refuge are entitled to protection
against forced repatriation, physical space in which to exist, and an opportu-
nity to receive relieffrom local humanitarians or the international communi-
ty. The average person obviously would not freely choose such a life in a
strange country with any enthusiasm, unless the alternative was even worse.
Yet thousands and even millions do opt for it, because of the grave dangers
they face at home.
Just how "temporary" is this temporary refuge? Its temporal limits are
determined by the duration of the armed conflict, which can persist for
extended periods or flare only briefly. Practice seems to indicate that volun-
tary repatriation at the conclusion of the hostilities is the ultimate solution
sought not only by states of refuge and the UNH CR but by the seekers of
temporary refuge themselves. Formal efforts at voluntary repatriation are
sometimes undertaken under the supervision of the UNHCR, as in Djibouti
and Somalia,23 but even more frequently one witnesses spontaneous repa-
triation by the refuge-seekers themselves. Such movements were recently
reported to be occurring between Rwanda and Uganda.Z4 A report on
Salvadoran refuge-seekers in Honduras indicates that 1500 refuge-seekers
returned to El Salvador during the first nine months of 1984, but that an even
greater number entered Honduras during that period, some of them persons
who had tried repatriation but found it still too dangerous. 25 A recent survey
of Tamil refuge-seekers in India revealed that 75 per cent expressed an intent
to return to Sri Lanka when the fighting abated, even though over half had
been direct victims of violence and 10 per cent had had a close family
member killed in the fighting. 26 Thus "temporary refuge" is an appropriate
label, even though protracted conflicts may occasionally cause states of
refuge to be placed under domestic strain by the prospect of indefinite
hospitality to a massive influx of persons, as in Thailand and Pakistan.
State practice is less well-developed on the important question whether
the norm of temporary refuge carries with it a right of non-rejection at the
frontier, or is limited to a ban on forced repatriation of those who succeed
in entering surreptitiously or who overstay legal permits to enter. In light of
the underlying compelling imper~tive of self-preservation, there seems to be
no justifiable distinction between forced repatriation and rejection at the
frontier. As it happens, states generally acquiesce in the irregular entrance
of refuge-seekers from conflict. But because many states have no effective
means of patrolling their borders, this practice cannot ordinarily be seen as
something pursued out of a sense oflegal obligation. 27 Thailand has officially
declared its border with Kampuchea to be closed,28 but this does not in
practice diminish its compliance with the norm. Honduran and Salvadoran
troops in 1980 did engage in massacres at the border of persons seeking
refuge from the conflict in El Salvador, but again under the rationale that
92

these were fleeing combatants or sympathizers rather than helpless civil-

ians. 29 Thus, as to immediate crossing of borders to escape the conflict, state
practice is largely consistent with a right to non-rejection at the frontier.
Evidence that the practice is undertaken out of a sense of obligation, howev-
er, is less clearcut than for the ban on forced repatriation.
As to the basic norm, evidence of opinio juris is quite strong. It appears
especially in the formal statements of intergovernmental organizations and
in reports by groups of experts convened by the UNHCR and on a regional
basis. Aside from the UNHCR and the Executive Committee, the norm has
been clearly expounded by the Organization of Mrican Unity,30 the Inter-
American Commission on Human Rights, 31 and a round table of Asian
experts on refugees. 32 Most recently the norm has found expression in the
Cartagena Declaration. 33 It was also endorsed by state representatives
participating in the Consultations on the Arrivals of Asylum-Seekers and
Refugees in Europe, who agreed that "persons who cross international
boundaries to escape from severe internal upheavals and armed conflicts
should not be returned against their will to areas where they may be exposed
to danger." 34
The last-quoted statement suggests two noteworthy questions. First, does
the norm bind states that are not states of first refuge? And second, may
civilians be forcibly repatriated to so-called "safe zones" in their country of
origin? Each of these issues is of great importance in assessing the legality
of current United States practice with respect to Salvadorans.
On the first point, there is nothing in the logic of the norm, the realities
of the refuge-seekers' situation, or in state practice that would reasonably
give rise to the conclusion that states of second or third refuge are free to
return civilians to the site of internal armed conflict simply because those
civilians may have transited other states on their path of flight. Numerous
instances exist of temporary refuge extended to civilians geographically
remote from the conflict in their country of origin, including Canadian refuge
for Salvadorans 35 and Swedish refuge for Lebanese. 36 Of course, a state of
second refuge may return refuge-seekers to the state in which they first
sought refuge, assuming that state is willing to accept them back. This used
to be U.S. practice with respect to Mghans who were deported- they were
returned to Pakistan, not to Mghanistan. 37 The reverse can be equally valid
under the norm. That is, a state of first refuge may seek to resettle the
refuge-seekers in a state of second refuge willing to accept them. But in no
case may a state of refuge forcibly repatriate them back into the conflict, even
where no other state will accept them.
Then is the United States in breach of the norm for forcibly repatriating
large numbers of Salvadorans? I would argue that the United States is
indeed in objective breach. It is worth noting the justifications offered for this
 93

U.S. practice. First, one hears the argument that Salvadorans in the United
States are not fleeing the conflict but are simply economic migrants. 38 This
is not the place to argue what the facts actually indicate about Salvadoran
motivations. The point of interest here is that the United States as an official
matter finds it necessary to resort to an evasive strategy, being unwilling to
admit that it is forcibly repatriating the victims of internal. armed conflict.
This evasive strategy consists of denying that Salvadorans in the United
States are persons within the norm, by asserting that their flight was pro-
voked not by fear of armed conflict but by hopes of economic gain. Such
a distinction would be irrelevant if victims of armed conflict were no more
deserving of protection than economic migrants.
When pressed on the issue of armed conflict, U.S. policymakers have
tended to argue that El Salvador contains extensive camps for the internally
displaced as well as conflict-free zones to which civilians can be sent even
if their home villages are unsafe for habitation. 39 Similar thoughts have
occurred to Western European countries faced with mass influx of poverty-
stricken individuals ethnically distinct from their own populations. For
example, the government of the Netherlands has undertaken a search for
safe zones in Sri Lanka to which Tamils might be deported. 40 States offrrst
refuge, largely in the Third World, have tended to eschew such fine dis-
tinctions, even though they are truly burdened in massive numbers by
refuge-seekers and have far fewer resources for responding. State practice
on the question of repatriation to safe zones is thus somewhat mixed. If such
repatriation could be accomplished with safety and guaranteed support for
those returned, then one might conclude that the norm could theoretically
accommodate such a refinement. This is a questionable proposition, howev-
er, in a state distracted by guerilla warfare and possibly unable to provide
de facto protection to its citizens. It is also worth noting that UNHCR, as
a matter of policy, refuses to cooperate in repatriation efforts that do not
provide a realistic possibility for returnees to return to their own homes. 41
The growing "compassion fatigue" of Western countries that have become
states of second refuge for civilians fleeing armed conflict raises another
important question. Does the norm have a "tipping point," a point at which
the burden of temporary refuge becomes so great that the state of refuge is
relieved of its obligation to comply? When one thinks what this would mean
- that because of high material costs the state of refuge is entitled forcibly
to return fleeing citizens to the scene of internal armed conflict - it is not
surprising to discover that there is simply no state practice supporting such
a limitation. To be sure, some states have cited excessive burdens and the
failure of international burden-sharing and have either begun or threatened
to begin forcibly repatriating refuge-seekers. But on these occasions, they
have been met either with international protest and condemnation, or with
94

a sudden influx of international support to make the burden again tolerable.

Thailand and Djibouti are two examples. In no case has a breaching state
simply encountered international acquiescence, which might have lent legiti-
macy to some possible "tipping point" limit on the norm.

II. RECENT DEVELOPMENTS IN THE UNITED STATES: THE HAZARDS OF

TREATING TEMPORARY REFUGE AS A REFUGEE LAW DOCTRINE

The United States is, as I suggested earlier, in breach with respect to

Salvadorans, and its actions have been criticized by the UNHCR, among
others.42 But for every interesting reasons, this breach of the norm is largely
disguised: In adjudicated cases of deported Salvadorans, the technical legal
justification offered for their forced repatriation is simply that they are not
"refugees" within the meaning of the Refugee Act of 1980.43 This disguise
illustrates the danger of treating temporary refuge as a gloss upon or an
expansion of codified refugee law, as many are inclined to do. Although the
government failed recently to persuade the Supreme Court to raise the
standard of proof for political asylum applicants from "well-founded fear"
of persecution to "clear probability" of persecution,44 there are few indi-
cations of a loosening of the requirement that asylum applicants fit them-
selves within the categories of persecution specified in the Refugee Act of
1980.45
If the definition of "refugee" is not likely to be expanded judicially or
administratively to encompass civilians fleeing internal armed conflict, how
is the humanitarian norm I describe here likely to achieve respect in Ameri-
can practice? There are two obvious alternatives, litigation or legislation.
Interestingly enough, both are under current consideration. Issues of huma-
nitarian law have been raised in numerous deportation hearings, as well as
in defense pleadings in the Sanctuary prosecutions. 46 One immigration judge
has already accepted the argument that the Geneva Conventions of 1949
establish an obligation not to repatriate civilians into internal armed conflict
where grave breaches of the Conventions and Additional Protocol II are
occurring. 47 The legislative route is being explored both through proposals
for special relief for Salvadorans and for codification of"extended voluntary
departure," as will be discussed later.
The task of inducing U.S. courts to enforce the international obligations
of the United States on behalf of individuals, where this appears to conflict
with some aim of political expediency entertained by the foreign policy
apparatus of the executive branch, has become in the late twentieth century
a daunting prospect. We have seen in the current Administration a dramatic
growth in the tendency to manipulate international law in the most cynical
 95

manner, and to dispense with the rule of law where it is inconvenient.

Modem American judges seem to have lost the confidence possessed by
their eighteenth- and nineteenth-century forebears that they are able to find
and apply the law of nations. 48
It is not that the United States is a consistent objector to the norm of
temporary refuge. Far from it. The United States has been known to protest
other states' breaches of the norm, as in the case of Thai repatriation of
Kampucheans. It also sometimes congratulates itself for inducing those
states to change their practices and for its positive political and material
support for consistent state practice throughout the world. 49 A colloquy
between Rep. Stephen J. Solarz and a representative of the U.S. Depart-
ment of State in March 1981, during hearings on United States refugee
policies, provides an example:

Mr. Solarz: Do we see any possibility that either Thailand or Pakis-

tan might engage in forced repatriation of their refugee populations?

Mr. Lowman: We watch that situation closely. We are very mindful

of it. We are mindful of events which have taken place in the past, but
it is our judgment that is not a danger in either country at the present
time.

Mr. Solarz: Is it safe to assume the leadership in both countries is

aware of the extent to which any such policies on their part would
severely prejudice their relationship with the United States?

Mr. Lowman: I think they are very much aware of our concerns in
this regard. 50

Through past grants of extended voluntary departure (EVD), for example,

to nationals of Lebanon, Ethiopia, and Nicaragua (during the civil war to
overthrow Somoza), 51 the United States has also engaged in practice consis-
tent with the norm of temporary refuge. Yet the Administration firmly
opposes EVD for Salvadorans, 52 has fought against legislatively mandated
EVD under the Moakley-DeConcini Bill5 3 and has so far successfully fought
in the D.C. Circuit against the idea of judicially mandated EVD in the Hotel
& Restaurant Employees case. 54
In truth the United States, while insisting that other, poorer states accom-
modate mass influx, is most reluctant to become a state of mass asylum itself.
The waves of post-war Indochinese refugees, who had a strong moral claim
on the United States, triggered the reforms of the Refugee Act of 1980. 55 But
when Cubans in the Mariel boatlift and Haitian boat people began their mass
96

irregular movements directly to U.S. shores, attitudes hardened. 56 There

followed such innovations in asylum practice as detention of asylum seekers
and boat interdiction on the high seas. 5 7 The Cubans and Haitians were of
course not seekers of temporary refuge, since they did not flee armed conflict,
but the hostility toward mass influx which they provoked has certainly
affected attitudes toward Salvadorans.
The Administration also sees the Salvadorans as raising embarrassing
foreign policy issues, which they may very well do when they seek political
asylum. But when they seek temporary refuge, they simply cite the admitted
inability of the Salvadoran government to terminate or control the insurgen-
cy. There is therefore no foreign policy embarrassment in granting temporary
refuge to war victims - a point amply illustrated by President Duarte's
repeated requests to let the Salvadorans stay. Duarte rested his requests on
his nation's inability to reabsorb the returnees, owing to dislocations caused
by war and natural disaster. 58

III. A CALL TO COURTS - AND ALSO TO LEGISLATURES

How will the INS and the federal judiciary resolve this difference between
the commands of international law and the political expediency of the
Executive? We have certain well-established principles that should guide the
judiciary, including the principle that customary international law is a part
of the laws of the United States and judicially enforceable at the behest of
individuals. It is worth remembering that the leading case on this point, The
Paquete Habana, 59 concerned the application of a rule of customary humani-
tarian law which had been expediently breached by the executive branch
through the wrongful seizure of fishing boats during the Spanish-American
War. We also have the principle that statutes should be construed if at all
possible to be consistent with the international obligations of the United
States. 60 When we turn to the relevant statutes, we find the Immigration and
Nationality Act (INA) defining law so as to include international law and
directing the Attorney General and immigration judges to enforce that law. 61
The criminal statutes under which the Sanctuary workers were prosecuted
similarly incorporated international law. 62 The government nonetheless
argued in the Sanctuary cases that Congress intended the Refugee Act to be
the exclusive means by which such aliens could avoid deportation from the
United States. 63
How will the courts and the INS respond to these competing arguments?
Time will tell. But one cannot take heart at such reasoning as that in the
recent Fernandez-Roque decision in Georgia. 64 The district court held that
where an executive official has determined to breach a norm of international
 97

law (there an asserted norm prohibiting indefinite detention), the courts have
no choice but to acquiesce. How far that attitude is from the presumptions
espoused by the first Justice Harlan in Chew Heong v. United States. 65 In the
grandest tradition of the rule of law both domestically and internationally,
he wrote:

Aside from the duty imposed by the Constitution to respect treaty

stipulations when they become the subject of judicial proceedings, the
court cannot be unmindful of the fact, that the honor of the government
and people of the United States is involved in every inquiry whether
rights secured by such stipulations shall be recognized and protected.
And it would be wanting in proper respect for the intelligence and
patriotism of a co-ordinate department of the government were it to
doubt, for a moment, that these considerations were present in the
minds of its members when the legislation in question was enacted. 66

There is no legislation that clearly expresses Congressional intent to violate

the customary norm of temporary refuge. Indeed, Rep. Mazzoli has recently
introduced a proposed "Temporary Safe Haven Act of 1987," which would
provide authorization to remain temporarily when "there is an ongoing
armed conflict within the [aliens' home] state and, due to such conflict,
requiring the return of aliens who are nationals of that state to that state
would pose a substantial threat to their personal safety ... " 67 If enacted, this
bill would essentially codify the norm of temporary refuge and might depoli-
ticize the current uneven practice of granting extended voluntary depar-
ture.68 The likely judicial reluctance to enforce the norm of temporary refuge
makes the need for such legislation all the more compelling.

NOTES

1. United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T.
6259, T.I.A.S. No. 6577, 189 U.N.T.S. 137, supplemented by Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577,606 U.N.T.S. 267.
2. It does find partial expression, however, in a regional treaty, the Organization of African
Unity Convention Governing the Specific Aspects of Refugee Problems in Mrica, Sept.
10, 1969, art. I, para. 2, 1001 U.N.T.S. 45.
3. For a more complete account, see Perluss & Hartman, Temporary Refuge: Emergence
of a Customary Norm, 26 Va. J. Int'l L. 551 (1986).
4. A. Grahl-Madsen, The Status of Refugees in International Law 75-76 (1966); Hathaway,
The Evolution of Refugee Status in International Law: 1920-1950, 33 lnt'l & Comp. L.Q.
348, 358 (1984).
5. See, e.g., Report of the United Nations High Commissioner for Refugees, para. 22, U.N.
Doc. E/1985/62 (1985).
98

6. U.S. Comm. for Refugees, World Refugee Survey 1984, at 55-57 (1984); Mission to
Khorosan Province, Refugees, May 1984, at 11.
7. The Thai-Kampuchean Border, Refugees, May 1985, at 34.
8. Central America: Refugees Assisted by UNHCR, Refugees, Aug. 1985, at 24-25; World
Refugee Survey, supra note 6, at 53.
9. One in every thirteen persons in Djibouti is a refugee. World Refugee Survey, supra note
6, at 42.
10. Sri Lankans in Tamil Nadu, Refugees, Dec. 1985, at 11.
11. World Refugee Survey, supra note 6, at 50; Papua New Guinea: A More Comprehensive
Approach, Refugees, Feb. 1986, at 13.
12. See Report of the Executive Comm. of the High Commissioner's Programme (36th Sess.),
para. 112, U.N. Doc. A/AC.96/673 (1985) [hereinafter 1985 Ex. Comm. Report].
13. Report, supra note 5, at para. 23.
14. Note on International Protection, Executive Comm. of the High Commissioner's Pro-
gramme (36th Sess.), para. 6, U.N. Doc. A/AC.96/660 (1985).
15. U.S. Comm. for Refugees, Cambodians in Thailand: People on the Edge 10-11 (1985).
16. See generally G. Goodwin-Gill, The Refugee in International Law 113 & n.66 (1983).
17. Lawyers Comm. for Int'l Human Rights, Honduras: A Crisis on the Border 19-20 (1985).
18. See id.
19. See generally Papua New Guinea: A More Comprehensive Approach, supra note 11, at
14 (referring to resettlement of certain individuals who "cannot remain" in Papua New
Guinea).
20. See 1985 Ex. Comm. Report, supra note 12, para. 28; Report of the Executive Comm.
of the High Commissioner's Programme (37th Sess.), para. 31, U.N. Doc. A/AC.96/688
(1986); Armed Attacks on Refugee Camps: No International Consensus, Refugees, Dec.
1985 at 5. In October, 1987, however, the Executive Committee finally reached consensus
on the subject, adopting a Conclusion that condemns armed attacks but also stresses that
states of refuge must "do all within their capacity to ensure that the civilian and humani-
tarian character of such camps and settlements is maintained." Report of the Executive
Comm. of the High Commissioner's Programme (38th Sess.), para. 206, U.N. Doc.
A/AC.96/702 (1987).
21. See Amnesty International, Nicaragua: The Human Rights Record 32-36 (1986).
22. Looking for Durable Solutions: Interview with Abdi Mohamed Tarrah, Extraordinary
Commissioner of the [Somali] National Refugee Commission, Refugees, December 1984,
at 35.
23. First Organized Voluntary Repatriation Movement to Ethiopia, Refugees, Dec. 1985, at
34; Voluntary Repatriation from Djibouti to Ethiopia, Refugees, July 1984, at 20-21.
24. Rwanda: Emptying the Camps, Refugees, Dec. 1985, at 7.
25. Honduras: A Crisis on the Border, supra note 17, at 34.
26. Sri Lankans in Tamil Nadu, supra note 10, at 11-12.
27. See A. D'Amato, The Concept of Custom in International Law 81-85 (1971).
28. See generally N.Y. Times, Oct. 4, 1985, at A6, col. 1 (describing efforts by Kampucheans
to slip secretly into refugee camps inside Thailand).
29. Honduras: A Crisis on the Border, supra note 17, at 19-20.
30. See Organization of African Unity Convention, supra note 2.
31. Organization of American States, Annual Report ofthe Inter-American Commission on
Human Rights, 1982-1983, at 39-40, O.A.S. Doc. OEA/Ser.LfV/11.61, Doc. 22, Rev. 1
(1983).
32. Manila Declaration on the International Protection of Refugees and Displaced Persons
in Asia, reprinted in Executive Comm. of the High Commissioner's Programme, Note on
 99
the Round Table of Asian Experts on International Protection of Refugees and Displaced
Persons (31st sess.), Annex l, U.N. Doc. A/AC.96/INF. 162 (1980).
33. Declaration of Cartagena, Colloquium on International Protection of Refugees in Central
America, Mexico and Panama: Legal and Humanitarian Problems, Nov. 19-22, 1984,
reprinted in Annual Report of the Inter-American Commission on Human Rights, 1984-
1985, at 179-82, O.A.S. Doc. OEA/Ser.L/V/11.66, Doc. 10, Rev. 1 (1985). The O.A.S.
General Assembly has specifically endorsed the substance of the recommendations in the
Cartagena Declaration. See O.A.S. General Assembly: An Inter-American Initiative on
Refugees, Refugees, March 1986, at 5.
34. Note on International Protection, supra note 14, para. 19.
35. Immigration Manual (Guide de !'Immigration), Ministry of Employment and Immi-
gration, Canada lS 26 (ELS), NHQ File 8655-1.
36. Immigration and Asylum: A National Debate (Letter from Prime Minister Olof Palme
to the Citizens of Sweden), reprinted in Refugees, Apr. 1985, at 20-21.
37. See, e.g., Matter of Salim, 18 I & N Dec. 311, 317 (BIA 1982).
38. Letter from Att'y Gen. William French Smith to Members of Congress (July 19, 1983),
reprinted in T. Aleinikoff & D. Martin, Immigration: Process and Policy 731-33 (1985).
39. Simpson, We Can't Allow All Salvadorans to Stay, Wash. Post, July 10, 1984, at Al3,
col. 2, reprinted in T. Aleinikoff & D. Martin, supra note 38, at 736-38.
40. Interview with Hans van den Broeck, Minister of Foreign Affairs of the Netherlands,
Refugees, Oct. 1985, at 42, 43.
41. Report of the Executive Comm. of the High Commissioner's Programme (35th sess.),
Annex at 4, U.N. Doc. A/AC.96/651 ( 1984) (opening statement by the High Commission-
er).
42. Report of the United Nations High Commissioner for Refugees Mission to Monitor INS
Asylum Processing of Salvadoran Illegal Entrants, reprinted in 128 Cong. Rec. 1698-1702
(1982).
43. Pub. L. No. 96-212, 94 Stat. 102 (codified in scattered sections of 8, 22 U.S.C. (1982 &
Supp. IV. 1986 a 2d). See, e.g., Hemandez-Ortiz v. INS, 777 F.2d 509, 512-13 (9th Cir.
1985).
44. INS v. Cardoza-Fonseca, 107 S. Ct. 1207 (1987). Somewhat surprisingly, the Board of
Immigration Appeals (BIA) has interpreted the "well-founded fear" standard to mean
that "a reasonable person in [the applicant's] circumstances would fear persecution"-
a relatively generous standard. Matter ofMogharrabi, Interim Dec. No. 3028, at 9 (BIA
1987). At the same time, the BIA noted that the alien must prove that the expected
persecution is based on one of the five specified grounds (race, religion, nationality,
membership in a particular social group, or political opinion). It also stated that "aliens
fleeing general conditions of violence and upheaval in their countries... would not qualify
for asylum." ld. at 12.
45. Some courts have tried to protect a few essentially random victims of internal conflict
through a broad interpretation of the "political opinion" aspect of the refugee definition.
For example, in Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987), a laundress who
became the victim of a Salvadoran sergeant's physical abuse was granted withholding of
deportation on grounds that the sergeant had imputed subversive opinions to her as part
of his threats against her. Id. at 1434-35. Such scenarios, however, are too rare to hold
out the promise of protection for all random victims.
46. United States v. del Socorro Pardo de Aguilar, No. 85-008 PHX EHC (D. Ariz. Oct. 25,
1985).
47. Matter of del Carmen Medina in Deportation Proceedings, No. A26 949 415 (U.S. Dep't.
of Justice, Exec. Office for Immigration Rev., Immigration Judge Hom, Harlingen, Tex.,
 100

July 25, 1985). Note that this argument differs from the norm of temporary refuge I have
described both in its legal source and scope of application, although it is also applicable
to Salvadorans. For a more complete treatment of the argument, and for citations to the
Conventions and Additional Protocols, see Note, The Agony and the Exodus: Deporting
Salvadorans in Violation of the Fourth Geneva Convention, 18 N.Y.U. J. Int'l L. & Pol.
703 (1986) (arguing that the Geneva Convention does support such a defense in depor-
tation proceedings).
48. See The Nereide, 13 U.S. (9 Cranch) 388,422 (1815); The Paquete Habana, 175 U.S. 677
(1900).
49. See, e.g., Overview of Refugee Situation in Southeast Asia: Hearing Before the Subcomm.
on Asian and Pacific Affairs of the House Comm. on Foreign Affairs, 98th Cong., 2d Sess.
21-24, 51-52 (1984).
50. Foreign Assistance Legislation for Fiscal Year 1982: Hearings and Markup Before the
Subcomm. on Asian and Pacific Affairs of the House Comm. on Foreign Affairs, 97th
Cong., 1st Sess., pt. 5, at 315 (1981).
51. The "extended voluntary departure" terminology is confusing. In fact, no departure is
contemplated until a policy decision is made to terminate the EVD "status." See T.
Aleinikoff & D. Martin, supra note 38, at 727-29; see also U.S. Immigration and Naturali-
zation Serv. Operations Instructions§ 242.10e(3) (1979), reprinted in 4 C. Gordon & H.
Rosenfield, Immigration Law and Procedure 23-488.5 (1987) (outlining notification pro-
cedures for an alien who is temporarily unable to return to his home country due to civil
war or catastrophic circumstances; notice should inform the alien that he is granted one
year in which to depart voluntarily, that his employment has been authorized and that
the grant of voluntary departure may be revoked if conditions in his home country
improve).
52. See Letter from Att'y Gen. Smith, supra note 38.
53. The Moakley-DeConcini Bill, H.R. 618, 100th Cong., 1st Sess., passed the House on July
28, 1987, by a vote of237-18l. 133 Cong. Rec. H6719-21 (daily ed. July 28, 1987). The
Senate version, S.332, passed the Senate Judiciary Committee by a vote of 9-2 on July
15, 1987, but floor action is uncertain. Nicaraguans would also be included under the
latest versions of these proposals. See H.R. 618, supra,§ 301, reprinted in 133 Cong. Rec.
at 6720.
54. Hotel & Restaurant Employees Union, Local 25 v. Smith, 594 F. Supp. 502, 505-08
(D.D.C. 1984); afl'd, 804 F.2d 1256 (D.C. Cir. 1986); vacated for rehearing en bane, 808
F.2d 847 (D.C. Cir. 1987).
55. Pub. L. 96-212, 94 Stat. 102. See, e.g., 126 Cong. Rec. 4504 (1980) (statement of Rep.
Danielson) ("The United States has made a national commitment to aid and resettle the
Indochinese people who have been forced from their homelands ...").
56. See, e.g., United States as a Country of Mass First Asylum: Hearing Before the Sub-
comm. on Immigration and Refugee Policy, Senate Comm. on the Judiciary, 97th Cong.,
1st Sess. 1-3 (1982) (statement of Sen. Alan Simpson, Subcomm. Chairman).
57. See, e.g., Haitian Refugee Center v. Gracey, 600 F. Supp. 1396, 1398-99 (D.D.C. 1985),
atfd on other grounds, 809 F.2d 794 (D.C. Cir. 1987).
58. See Newsweek, June, 1985, at 19; Congressional Hearings on Deportations to Central
America Continue, Refugee Reports, June 12, 1987, at 13-14 (State Department justifying
the refusal of Duarte's 1987 request because of the need "to avoid exceptions which others
might take as precedents").
59. 175 u.s. 677 (1900).
60. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804).
 101

61. See Immigration and Nationality Act (INA)§ 101(aX17), 8 U.S.C. § 1101(aX17) (1982)
(defining "law" as including "all laws, conventions, and treaties of the United States
relating to the immigration, exclusion, deportation, or expulsion of aliens). Section 103
of the Act commands the Attorney General to administer the INA and "all other laws
relating to the immigration and naturalization of aliens," 8 U.S.C. § 1103(a), while 8
C.F.R. 242.8(a) (1987) delegates to the immigration judges the authority to take action
consistent with applicable law.
62. 8 U.S.C. § 1324 (1982) provided that persons may be punished only when they assist
aliens who are not entitled to enter or reside within the United States under the INA "or
any other law relating to the immigration or expulsion of aliens." This provision was
amended by the Immigration Reform and Control Act of 1986 to punish any assistance
to aliens who enter other than at designated ports of entry, and to punish transportation
or harboring of aliens who have entered or remained "in violation of law." Pub. L. No.
99-603, § 112, 100 Stat. 3359, 3381-83, codified at 8 U.S.C. § 1324(a) (Supp. IV 1987).
63. Government's Memorandum in Response to Conger's and Nicgorski's Motion to Dismiss
re International Law Issues, United States v. del Socorro Pardo de Aguilar, No. 85-008
PHX EHC (D. Ariz., filed Apr. 22, 1985).
64. Fernandez-Roque v. Smith, 622 F. Supp. 887,903 (N.D. Ga. 1985), rev'd in part sub nom.
Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert. denied sub. nom. Ferrer-Mazorra
v. Meese, 107 S. Ct. 289 (1986). For cogent criticism of the ruling, see Henkin, The
Constitution and United States Sovereignty: A Century of Chinese Exclusion and its
Progeny, 100 Harv. L. Rev. 853, 883-85 (1987).
65. 112 U.S. 536 (1884). The issue in Chew Heong was whether a Chinese person, granted
the right under a treaty of 1880 to leave and return freely to the United States, had been
deprived of that right by 1882 and 1884 Acts of Congress. Those Acts mandated the
exclusion of Chinese unless they had a certificate that was not yet in existence when Chew
Heong left on his extended sojourn to the Kingdom of Hawaii. 112 U.S. at 538-40. Thus
the case presented an issue of statutory construction in the context of an individual
seeking a writ of habeas corpus to challenge the application to him of a newly expedient
immigration regulation.
66. 112 U.S. at 540.
67. H.R. 2922, 100th Cong., 1st Sess. (introduced July 13, 1987). Other potentially eligible
groups would be aliens affected by natural disasters and aliens whose return the Attorney
General determined was not in the national interest of the United States due to immi-
gration, humanitarian or international concerns. Designation of countries whose nation-
als would benefit from these provisions apparently remains, however, within the dis-
cretion of the Attorney General.
68. Calls for depoliticizing EVD have been heightened by the Reagan Administration's
almost simultaneous extension ofEVD for Poles and denial of President Duarte's request
for EVD for Salvadorans in the summer of 1987. See 133 Cong. Rec. H6236-38 (daily ed.
July 13, 1987) (remarks of Reps. Fish and Mazzoli and reprinted New York Times
editorials). For a thoughtful discussion of the reasons for codifYing provisions for tempo-
rary refuge in the United States, see Refugee Policy Group, Safe Haven: Policy Responses
to Refugee-Like Situations (1987).
 NONREFOULEMENT AND THE NEW ASYLUM SEEKERS*

GUY S. GOODWIN-GILL

The flight across frontiers by those in fear for their lives or freedom 1 raises
critical issues in the field of international protection. The legal protection of
such individuals is often exclusively identified with the application of the
1951 Convention Relating to the Status of Refugees, 2 particularly with
articles 1 (defining refugees 3 } and 33 (prohibiting refoulement) The 1951
Refugee Convention and the 1967 Refugee Protocol take an individualized
approach to the criterion of refugee status and to the concomitant benefits.
This approach is a strength insofar as it endorses the notion of individual
human rights, but a weakness insofar as it fails to encompass less well-
defined situations of need such as famine, drought, war, or civil strife. For
this reason, the particular protection afforded by the 1951 Refugee Con-
vention and the 1967 Refugee Protocol has long been accompanied by
standards of reception and assistance founded upon more generalized con-
ceptions of need or distress.
This paper first examines the general law relating to refugees and the
concept ofnonrefoulement; second, it explains some ofthe legal implications
flowing from the application of nonrefoulement to persons fleeing from civil
strife; and finally, it proposes certain standards of response to situations of
mass involuntary movements. The central thesis of this paper is that the
essentially moral obligation to assist refugees and to provide them with
refuge or safe haven has, over time and in certain contexts, developed into
a legal obligation (albeit at a relatively low level of commitment). The
principle of nonrefoulement must now be understood as applying beyond the
narrow confines of articles 1 and 33 of the 1951 Refugee Convention. It must
be emphasized that nonrefoulement is not about returning refugees to inter-
mediate countries or so-called countries of first asylum. Nor is nonrefoule-

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
104

ment about the failure to provide durable solutions. The central, if not the
only valid question in the nonrefou/ement debate is that of risk to refugees.

I. THE PRINCIPLE OF NONREFOULEMENT

The Office of the United Nations High Commissioner for Refugees

(UNHCR) has been charged by the United Nations General Assembly with
the duty to provide international protection to refugees, to seek durable
solutions for the problem of refugees, to supervise the application of inter-
national conventions for the protection of refugees, and to promote the
implementation of "any measures calculated to improve the situation of
refugees." 5 Its original mandate was limited essentially to those individuals
with a well-founded fear of persecution for reasons of race, religion, national-
ity, or political opinion. 6 Over time, however, the UNHCR's mandate was
expanded. 7 In numerous situations, a group approach was substituted for
individual, case-by-case determinations and the focus shifted from subjec-
tive factors to objective factors indicating that people were effectively
without the protection of their own government. The UN General Assembly,
the Economic and Social Council, and the Executive Committee of the High
Commissioner's Programme have contributed to these developments, with
further support coming from the practice of states and international
organizations. For example, the term "displaced persons" was traditionally
used to describe those displaced within their own country as a result of civil
strife or natural disaster. General Assembly resolutions over the past years,
however, when combined with the evidence of state practice, have endowed
the term with new meaning and have broadened the class of those entitled
to the protection and assistance of the international community. 8 According-
ly, refugees and displaced persons of concern to the UNHCR include not
only those persons who can, on a case-by-case basis, be shown to have a
well-founded fear of persecution on certain grounds, but also those large
groups of people who do not enjoy the protection of the government of their
state of origin.
This development might be described as purely functional, enabling the
UNHCR to provide limited protection and assistance, but. not otherwise
entailing legally binding obligations. State practice and conventional inter-
national law, however, suggest otherwise. For instance, article I(2) of the
1969 Organization for Mrican Unity Convention on Refugee Problems in
Mrica9 expands the traditional refugee definition to include those compelled
to leave their country of origin on account of "external aggression, occu-
pation, foreign domination, or events seriously disturbing public order." 10
Similarly, the 1984 Cartagena Declaration on Refugees 11 recommends that
 105

the traditional refugee definition for use in Central America be expanded to

include "persons who have fled their country because their lives, safety or
freedom have been threatened by generalized violence, foreign aggression,
internal conflicts, massive violation of human rights or other circumstances
which have seriously disturbed public order." 12
Such precedents are not confined to particular regional initiatives, but
reflect a universal recognition of humanitarian obligations towards those in
need. This is amply demonstrated by state practice where provisions for 'B'
status 13 and extended voluntary departure 14 have been applied. The com-
mon factor in all such cases is the possibility of some harm befalling the
individuals in question because, by reason of circumstances beyond their
choosing or control, the degree of protection normally to be expected of the
government is either lacking or denied.
The protection needs of those whose lives or freedom may be endangered
if returned to their country of origin are met in part by the principle of
nonrefoulement, and in part by related rules derived from conventional and
customary international law. Article 33 of the 1951 Refugee Convention
obligates a state not to "expel or return a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threaten-
ed ... " Its purpose is to guarantee refugees a limited but fundamental pro-
tection, short of asylum, residence or other durable solution.
State practice has broadened the scope of article 33. First, it has confirm-
ed that the duty of nonrefoulement extends beyond expulsion and return and
applies to measures such as rejection at the frontier 15 and even extradition.
Second, it has further established the principle of nonrefou/ement in inter-
national law by extending its application to a broader category of refugees. 16
The 1951 Refugee Convention and 1967 Refugee Protocol define "refugee"
as a person with a well-founded fear of persecution for reasons of race,
religion, nationality, membership of a particular social group, or political
opinion. 17 Customary international law incorporates this core meaning, but
extends the principle of nonrefoulement to include displaced persons who do
not enjoy the protection of the government of their country of origin.
The application of the principle of nonrefou/ement is independent of any
formal determination of refugee status by a state or an international organi-
zation. 18 Non-refou/ement is applicable as soon as certain objective con-
ditions occur. A state which returns foreign nationals to a country known
to produce refugees, or to have a consistently poor human rights record, or
to be in a civil war or a situation of disorder, must therefore justify its actions
in light of the conditions prevailing in the country of origin. The very
existence of a program of involuntary return should shift the burden of proof
to the returning state when the facts indicate the possibility of some harm
befalling those returned for any of the above reasons. Moreover, a state may
106

be liable for a breach of the duty of nonrefoulement regardless of notions of

fault, either directly for the acts and omissions of its officials, or indirectly
where its legal and administrative systems fail to provide a remedy or
guarantee which is required by an applicable international standard. 19
The binding obligations associated with the principle of nonrefoulement are
derived from conventional and customary international law. While the
principle may not necessarily entail asylum, admission, residence, or indeed
any particular solution, it does enjoin any action on the part of a state which
returns or has the effect of returning refugees to territories where their lives
or freedom may be threatened.

II. LEGAL IMPLICATIONS FLOWING FROM THE PRINCIPLES OF

NONREFOULEMENT, WITH PARTICULAR REFERENCE TO THE SITUATION
OF PERSONS FLEEING CIVIL WAR OR INTER-COMMUNAL STRIFE

The broader application of the principle of nonrefoulement to persons whose

lives or freedom may be endangered in their country of origin by reasons of
violence, conflict, violations of human rights, or other serious disturbances
of public order raises the following questions. First, are those within the
broader class to be identified in a practical way in terms of groups, or more
precisely, on an individual, case-by-case basis? Second, what rules of
evidence and what presumptions, if any, should govern the process of
identification? Third, what is the extent of protection due from individual
states and the international community in the overall search for solutions to
particular refugee problems?

A. Identifying refugees in the broader class

Depending on the circumstances of the particular refugee movement,

including bilateral relations and local pressures, states generally afford pro-
tection on one of three bases: nationality, membership in a vulnerable group
(for example, trade union activist, political worker, tribal or ethnic origin),
or an individually substantiated claim of humanitarian need. In a case of
crisis of humanitarian need, 20 the first reaction of the UNHCR and of states
is necessarily founded on generalities and incomplete knowledge. In most
cases, the first objective will be short-term protection with consideration
given to longer term solutions only after the need for immediate protection
has been met. Group determination, prima facie determination, or no deter-
mination at all, are methods which frequently characterize the immediate
response to large-scale cross-border movements. Experience shows that
 107

where causative conditions persist, the group approach can be maintained

for a prolonged period in a relatively non-discriminating manner. A more
thorough approach may be required, however, as circumstances change. The
need to control the distribution of rations may call for positive identification
of individuals or heads of family and for corresponding determinations of
status. Resettlement programs are usually based on a variety of general or
specific criteria, often including an assessment of eligibility for refugee status.
An absence of resettlement opportunities or local integration projects can
likewise lead to individual screening, particularly of new arrivals. When
refugees and asylum seekers move beyond the region to other countries of
refuge, a different approach to identifying those entitled to protection may
be required. Presumptions and methods of identification which serve a
useful classifying role in countries of first asylum are not always considered
appropriate in countries of second asylum that employ more individualized
systems of protection.
There are essentially two approaches to the identification of those in need
of temporary protection: 1) a general policy of refuge in which refuge is
denied only in a limited number of exceptional cases (prima facie deter-
mination); or 2) no general policy, so that refuge is granted in a limited class
of exceptional cases. Justifications for adopting the first approach are the
instability, human rights violations and lack of protection which induce
refugee flows. This approach has several advantages. It directly pursues
humanitarian objectives and eases bilateral relations by avoiding indi-
vidualized determinations of persecution or harm. 21 Also, it allows states to
maintain control in immigration matters through the categorical exclusion of
those who have persecuted others, who are serious criminals or threats to
the community, or who, by their own admission, are motivated by reasons
of personal convenience. Moreover, as the necessity for refuge is generally
short-term, the reasons for flight and the conditions producing distress can
be regularly reviewed by independent and reputable agencies, while com-
plementary policies aimed at remedying the situation at its source are
pursued.
The disadvantages of the alternative approach, no general policy, but
refuge in a limited class of exceptional cases, lie in the demands that it places
on national resources. 22 Administrators are called upon to speculate and to
make individualized assessments of risk. Experience shows that this is an
area where detailed background information is rarely available, 23 were
credibility remains hard to ascertain, and where decision-makers tread
warily among the ramifications of foreign and domestic policy. Only too
often the humanitarian goal of protection is lost in the process.
108

B. Presumptions and standards of proof

Whenever temporary refuge is sought, the existence of danger caused by

civil disorder, domestic conflicts, or human rights violations generates a
valid presumption of humanitarian need. This has important consequences
for the process of determining the entitlement to protection of individuals or
specific groups. In particular, the presumption should shift the burden of
proof from the claimant to the state. The individual should not be required
to show that he or she personally would be exposed to danger, 24 but need
only establish those elements of nationality or group membership sufficient
to raise the presumption. Once raised, the state should justify restrictive
measures by rebutting the presumption. The potentially serious conse-
quences for those denied refuge, however, means that the presumption of
humanitarian need should be rebuttable only by clear and convincing evi-
dence establishing that the danger, however manifested, no longer exists;
that particular individuals or groups are not worthy of protection or would
not in fact be exposed to danger; 25 or perhaps, in highly exceptional cases,
that refoulement is necessary to prevent some greater evil. 26

C. The extent of protection

The conditions which generate a well-founded fear of persecution within
an individual are commonly no more compelling than those which cause the
flight of thousands from violence and civil unrest. Nonetheless, states are
generally reluctant to grant permanent asylum to the latter, while they are
more receptive toward the former. Mass influxes are often resolved by mass
repatriation when conditions in the home country improve. Many other
cases are resolved on an interim basis through the use of local settlements
where refugees may rebuild their lives and reacquire both a measure of
self-sufficiency and a degree of human dignity pending eventual return.
Beyond their region of origin, refugees from a mass movement may also
benefit from temporary solutions providing the guarantee of nonrefoulement
and the opportunity to earn a living in reasonable and decent conditions.
Practice in this regard, however, is increasingly restrictive.
In 1981, the Executive Committee of the UNH CR endorsed a list of some
sixteen "basic human standards" which should govern the treatment of
refugees and asylum seekers admitted temporarily in a situation of mass
influx. 27 These are minimum requirements geared to an acute problem and
represent a point of departure only. In other circumstances, even a "tempo-
rary" solution may require more substantial provision for refugees, including
the opportunity to earn a living and to have access to education, housing,
and social assistance. Moreover, the protection owed to refugees from
 109

violence and conflict must not be viewed apart from the necessity to find
overall solutions, including the voluntary return of refugees to their country
of origin and removal of the causes which produce refugee flows. The
internal costs of meeting humanitarian need can thus be mitigated over time
by external policies and programs designed to assist in reestablishing the
normal reciprocal relationship of rights and duties between citizen and state.
In light of these observations, the following considerations are proposed as
relevant to the treatment of refugees who are in flight from civil war or
inter-communal strife:

1. Those who have fled to escape violence, armed conflict or human

rights violations are refugees of concern to the UNHCR and the inter-
national community and, in the absence of evidence showing that the
causes for flight have ceased, or that in particular circumstances no
danger faces specific groups or individuals, such refugees should be
protected against refoulement. Solutions should be found which will
allow them to become self-sufficient and to live in dignity until such time
as they can return home.

2. Those currently seeking refuge in countries beyond the region of

conflict, even if not satisfying the definitional requirements of domestic
refugee legislation, should generally be allowed to remain while the
conditions producing their flight persist. Refuge may be denied, howev-
er, to individuals who are serious criminals or who constitute a threat
to security or the safety of the community, subject to a procedure of
decision and review.

3. In any procedure relating to the grant, denial or termination of refuge,

those fleeing civil war or inter-communal strife should benefit from the
presumption that their life or freedom would be endangered by reason
of generalized violence, armed conflict or massive violations of human
rights. Such a presumption should be rebuttable only by clear and
convincing evidence that the reasons for fearing danger do not or no
longer exist, or that the individual in question has left his or her country
of origin purely for reasons of personal convenience.

III. NONREFOULEMENT: RELATED ISSUES AND PRESENT CONCERNS

There are many sources of support for the argument advanced above.
These are derived both from international law and from general principles
oflaw and morality. The duties owed to the victims of armed conflict, now
110

well-defined in a variety of international instruments, take account not only

of military personnel, the sick, wounded, and shipwrecked,28 but also of the
plight of civilians caught up in or fleeing the conflict. 29 The objective is the
protection of those in need. 30
In recent years, similar attention has been given to the victims of state-
sponsored torture. In its celebrated amicus curiae brief in the case of Filartiga
v. Pena-/ra/a, 31 the United States argued, and the United States Court of
Appeals for the Second Circuit agreed, that state-sponsored torture was
prohibited by a rule of customary international law. Since then the United
Nations has drafted a Convention Against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment. 32 Article 3 of that Convention
requires that "no State Party shall expel, return ('refouler') or extradite a
person to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture. " 33 The European
Commission on Human Rights has already held that, in certain circums-
tances, expulsion itself may violate the equivalent provision against torture
in article 3 of the European Convention. 34 No state today claims the right
to return individuals to a state where they may be tortured.
A set of principles with an older history and one more directly related to
questions of entry into state territory concerns the plight of ships under force
majeure or stress of weather. Such ships are said to be immune from the
exercise of the jurisdiction of receiving states,35 a principle endorsed in a
series of United States, British, and French judicial decisions. 36 In one
United Kingdom case, Lord Stowell set out the test in terms which could
apply equally well to a refugee: "[i]t must be an urgent distress; it must be
something of grave necessity; ... the danger must be such as to cause appre-
hension in the mind of an honest and firm man .. :m Immunity does not
extend to those engaged in illegal activities against the littoral state, however,
and is limited to the occasion giving rise to the claim. It is an immunity from
arrest and penalty, but not from every aspect of the locallaw. 38
The field of moral philosophy also provides substantive support for the
broad principle of nonrefoulement. It could clearly be subsumed within
Shue's triad of duties: the duty to avoid depriving, the duty to protect from
deprivation and the duty to aid the deprived. 39 Its essence is also inherent
in the class of "natural duties" described by Rawls. 40 Rawls cites as an
example of "natural" duty "the duty of helping another when he is in need
or jeopardy, provided that one can do so without excessive risk or loss to
oneself... " 41 He makes the further point that such duties "hold between
persons irrespective of their institutional relationships; they obtain between
all as equal moral persons ... ; [they] are owed not only to definite individu-
als, say to those cooperating together in a particular social arrangement, but
to persons generally."42 Later, he refers to Kant's view that the "duty of
 111

mutual aid" is implied by the fact that "situations may arise in which we will
need the help of others, and not to acknowledge this principle is to deprive
ourselves of their assistance. " 43 Rawls adds an additional and persuasive
justification, the pervasive effect of the duty on the quality of everyday life:

The public knowledge that we are living in a society in which we can

depend upon others to come to our assistance in difficult circumstances
is itself of great value ... The primary value of the principle is not
measured by the help we actually receive but rather by the sense of
confidence and trust in other men's good intentions and the knowledge
that they are there if we need them ... Once we try to picture the life of
a society in which no one had the slightest desire to act on these duties,
we see that it would express an indifference if not disdain for human
beings that would make a sense of our own worth impossible.44

Rawls admits, of course, that the existence of such natural duties will not
solve every problem. There are perfect and imperfect duties and problems
of priority must be resolved. 45 Thus, in the context of a refugee flow,
respecting the rights of refugees may seem to bring communities into appar-
ently irreconcilable conflict- the one, as it were, in urgent search of refuge;
the other, in search of domestic and international security. Both Rawls and
Shue acknowledge that a certain degree ofloss to oneself or one's communi-
ty, created by the existence of an excessive risk, implicitly limits the duty to
others. 46
Evidently, some states have recently been concerned with such limi-
tations. Reservations with respect to the scope of obligations protecting the
broader class of refugees were amply demonstrated in the UNHCR Execu-
tive Committee in 1984 and 1985. There was concern about the changing
character of refugee movements 47 and with what some perceived to be an
unwarranted attempt to expand the refugee definition. 48 Yet there was also
uncertainty as to the appropriate alternative. Some states called for curbs
on irregular movements ofrefugees,49 or emphasized the need to get at and
solve the root causes of refugee flows. 5° European governments, in particu-
lar, complained about abuse of the asylum process and increasing numbers
of applicants. 51 At first glance, each country's figures might appear insignifi-
cant in relation to global refugee estimates. Their impact, however, is intensi-
fied by the very nature of individual case-by-case determination and by the
demands over time which individuals may make on welfare and related
services. In many states, significant backlogs have built up at various levels
of decision-making,52 and a problem which might have been resolved by the
deployment of additional resources seems likely to be further aggravated by
future large influxes.
112

European consultations held in Geneva in 1985 were, by and large,

inconclusive. Resolve to guarantee protection for refugees falling under the
1951 Refugee Convention and 1967 Refugee Protocol, however, seemed to
be accompanied by general agreement to treat humanely and to refrain from
returning to danger those fleeing their countries to escape severe internal
upheavals or armed conflict. 53 Although this was qualified at the Executive
Committee in 1985, the objections themselves merit close examination.
Australia, for example, confirmed that UNHCR had a protecting role for
those in the broader class, but considered it "undesirable to define those
groups of persons as 'refugees' and to grant them the full range of protection
available to victims of individual persecution."54 Switzerland agreed that the
UNHCR and the international community should go beyond the traditional
refugee concept and that those fleeing armed conflict or internal disturbances
also deserved protection, but expressed its own concern about the abuse of
asylum procedures. 55 The Netherlands, commenting on state practice of
non-return, claimed that the UNHCR had inaccurately summarized the
views of governments as expressed in the European Consultations. 56 What
were involved were policies based not so much on the principle of non-
refoulement as "on existing legal structures in the countries concerned," 57
i.e., national asylum policies. There was no need to apply the universally
accepted definition of a refugee to such cases, since that might lessen the
readiness of governments to grant asylum. 5 8 The Federal Republic of Ger-
many sympathized with those fleeing armed conflict and internal distur-
bance, but thought it essential to avoid the dilution of the clear-cut provisions
of national and international law. 59 Its own law accords the right of asylum
to all who are persecuted on political grounds. 60 Italy suggested that an
additional type of legal status might be created to deal with the new cate-
gories, a point well worth further examination. 61
These objections are founded on a traditional view which sees asylum as
the most appropriate solution to refugee problems. States perceive them-
selves as having a limited capacity to grant this valuable privilege, and also
see it as a potential threat to immigration control. 62 Asylum does not have
to be viewed in this way, however, and asylum in this sense is not the only
way in which the protection of refugees can be accomplished. It is a mistake
to make the leap from nonrefoulement to asylum. Moreover, it is myopic to
put short-term national interests before long-term solutions to involuntary
flows. Unilateral and uncoordinated responses need to be abandoned in
favor of a Unified response which focuses on root causes, regional solutions,
burden-sharing, resettlement, and safe return. In the final analysis, non-
refoulement through time implies temporary refuge. 63 Its content and scope
remain uncertain but it must be geared to the ultimate objective of durable
 113

solutions and conditioned by thoroughgoing respect for fundamental rights,

human dignity and integrity.

IV. SOME FUTURE OPTIONS

The problem of large-scale involuntary flows is not likely to abate in the

near future. It is therefore necessary to decide how best to formulate a set
of standards both to govern the present situation and to provide guidance
in the future. Some sort of declaration could be promoted in the United
Nations General Assembly, but this would be difficult. Refugee movements
are often too political to allow widespread support for curative or preventive
measures while the differences in flows resist facile generalizations. More-
over, the competence of states to exclude or to expel foreign nationals
remains a sensitive issue, so that any proposed limitations may be negatively
construed as imposing impossible burdens or even as threatening the very
existence of the nation.
Nevertheless, the treatment and management of such flows is ready for
attention by international and intergovernmental organizations, by regional
economic, social and human rights institutions, and by academic and non-
governmental agencies. Some work has already been done in this area by the
United Nations Group of Governmental Experts on measures to avert new
refugee flows. 64 What is needed is a strong framework of humanitarian
principles, bringing together various strands and common values. There is
a danger, though, that such an exercise may be manipulated to the point of
raising soft law over hard law, diluting principles and fudging standards.
Regardless of these risks, the Annex to this paper contains some suggestions.
They are declared at a minimum level of generality, as is justified by the
current state of international law, but many of the principles are already
amplified and made more definite by specific rules of both conventional and
customary international law.
 ANNEX

SUGGESTED PRINCIPLES FOR AVOIDING AND RESOLVING PROBLEMS

ARISING FROM THE TRANSFRONTIER AND INTERNAL DISPLACEMENT OF
PEOPLE IN DISTRESS

1. All states, in accordance with the provisions of the International Covenant

on Economic, Social and Cultural Rights, other relevant instruments and
principles of general international law, shall take such steps as shall assure
to their peoples the enjoyment, among others, of the rights to work and to
just and favorable conditions of employment, to an adequate standard of
living, to health, to education and to participation in cultural life.

2. All states, in accordance with the provisions of the International Covenant

on Civil and Political Rights, other relevant instruments and principles of
general international law, shall take such steps as shall assure to their
peoples the enjoyment, among others, of the rights to life, liberty and security
of person, to freedom from torture, cruel, inhuman or degrading treatment
or punishment, to freedom from slavery and servitude, to freedom of move-
ment and freedom to leave and return to their own country, to freedom from
arbitrary arrest and detention, to equality before and equal protection of the
law, to freedom of thought, conscience and religion, and the rights to partici-
pate in public affairs and to vote.

3. Recognizing that nationality, whether formally acknowledged by munici-

pal law or not, corresponds with a genuine connection between individual
and state, based upon the social fact of attachment, all states shall refrain
from any act which has the object, purpose or effect of severing that relation-
ship, unless permitted by a rule of general international law. In all other
cases, including the forcible exchange of populations, the expulsion of
nationals is forbidden.

4. All states shall respect and ensure to all persons within their territory and
jurisdiction human rights and fundamental freedoms without distinction of
any kind, such as race, color, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, birth or other status.
Collective expulsion of aliens, in particular, is prohibited.
 115

5. All states, individually and in cooperation with others, shall strive to create
the conditions necessary so that their people may enjoy the right to belong
and not to be compelled to take flight in search of decent living conditions
or freedom from strife. In particular, states shall co-operate in the establish-
ment of a just and equitable international economic order.

6. All states shall cooperate with one another to settle their disputes peaceful-
ly, shall refrain from the threat or use of force, and shall not intervene in
matters within the domestic jurisdiction of other states.

7. In accordance with the principles of international solidarity and burden-

sharing, states shall take all necessary measures to assist, at their request,
other states in which people may be found or admitted in distress. People
in distress include those affected by force majeure, or displaced by natural
disasters, wars of aggression, occupation, foreign domination, or events
seriously disturbing public order, as well as those in flight from persecution
for reasons of race, religion, national or ethnic origin, social group or political
opinion.

8. Where people in distress present themselves at a national frontier they

shall be admitted and rendered such assistance as is necessary. It shall be
for the admitting state, in cooperation with the United Nations, to determine
the causes of flight and to take appropriate interim steps to promote a
durable solution.

9. No person in distress shall be returned to any country or rejected at any

frontier if the effect of such measure would be to expose him or her to a threat
to life or liberty for reasons of race, religion, national or ethnic origin, social
group or political opinion, or would be otherwise inhumane.

10. People in distress shall be accommodated in receiving states until such

time as they are able to return to their homes in their homelands. They shall
be treated with humanity and in accordance with the human rights and
fundamental freedoms recognized by general international law.

11. All states shall cooperate to relieve the burden borne by states receiving
people in distress.

12. All states shall cooperate, in accordance with the principles of inter-
national solidarity and burden-sharing, in promoting solutions through local
integration or resettlement for people in distress who, owing to a well-
founded fear of being persecuted for reasons of race, religion, national or
116

ethnic origin, social group or political opinion, are unable or unwilling to

return to their own countr;.

NOTES

* This paper first appeared, in slightly modified form, in the Virginia Journal of Inter-
national Law, 26 Va. J. Int'l L. 897 (1986), and is reprinted here with permission. The
views expressed in this paper are the personal views of the author and do not necessarily
reflect the views of the United Nations or the Office of the United Nations High
Commissioner for Refugees (UNHCR).
1. There are 10 million refugees registered in the world. Report of the United Nations High
Commissioner on Refugees, para. 17, U.N. Doc. E/1986/55 (1986).
2. 1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 137, reprinted in 19 U.S.T. 6259, T.I.A.S. No. 6577 [hereinafter 1951 Refugee
Convention], updated by 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967,
19 U.S.T. 6223, T.I.A.S. No. 6577,606 U.N.T.S. 267 [hereinafter 1967 Refugee Protocol].
3. Article 1, paragraph 2 of the 1951 Refugee Convention defines a "refugee" as any person
who:
As a result of events occurring before 1 January 1951 and owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.
1951 Refugee Convention, supra note 2, art. 1, para. 2. The 1967 Refugee Protocol, supra
note 2, art. 1, removes the qualifying reference to events occurring before 1 January 1951.
4. Article 33 of the 1951 Convention reads:
1. No Contracting State shall expel or return ('refouler') a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a particular social group
or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country
in which he is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.

ld. art. 33.

5. Statute of the Office of the High Commissioner for Refugees, G.A. Res. 428, 5 U.N.
GAOR Supp. (No. 20) at46-47, U.N. Doc. A/1775 (1950) [hereinafter UNHCR Statute].
6. The Statute includes refugees as defined in various earlier treaties, other refugees result-
ing from events occurring before January 1, 1951, and any other persons outside their
country because of a well-founded fear of persecution by reason of race, religion, national-
ity, or political opinion. ld. art. 6, para. A. While this description is of universal appli-
cation, containing neither temporal nor geographical limitations, the Statute itself sug-
gests an inherent contradiction. Aga Khan, Legal Problems Relating to Refugees and
 117

Displaced Persons, [1976] I Recueil des Cours 287, 331-32. The work of the Office is to
relate, as a rule, to groups and categories of refugees, UNHCR Statute, supra note 5, art.
2, but the statutory definition of refugee is essentially individualistic, requiring a case-by-
case examination of subjective and objective elements.
7. See, e.g., Note on International Protection, Thirty-sixth Session of the Executive Com-
mittee of the High Commissioner's Programme, para. 6, U.N. Doc. A/AC.96/660 (1985)
[hereinafter Note on International Protection] (refugees within the High Commissioner's
competence include "persons who have fled their home country due to armed conflicts,
internal turmoil and situations involving gross and systematic violations of human
rights"); but see infra notes 47-52 and accompanying text. See also E. S.C. Res. 2011, 61
U.N. ESCOR Supp. (No. 1) at 2, U.N. Doc. E/5889/Corr.l (1976) (recognizing "the
importance of the essential humanitarian tasks undertaken by [the UNHCR] in the
context of man-made disasters, in addition to its original functions").
In its 1985 resolution, the General Assembly strongly reaffirmed the fundamental
nature of the protection function and the need for scrupulous observance of the principles
of asylum and nonrefoulement. The General Assembly also condemned all violations of
the rights and safety of asylum-seekers and urged all states to "support the High
Commissioner in his efforts to achieve durable solutions to the problem of refugees and
displaced persons of concern to his office." G.A. Res. 40/118,40 U.N. GAOR Supp. (No.
53) at 471, U.N. Doc. A/40/53 (1985).
Concurrently with authorizations of assistance in specific instances, there developed,
little by little, the notion of the High Commissioner's "good offices." See, e.g., G.A. Res.
3143,28 U.N. GAOR Supp. (No. 30) at 85, U.N. Doc. A/9030 (1973)(requesting the High
Commissioner "to continue his assistance and protection activities in favour of refugees
within his mandate as well as for those to whom he extends his good offices or is called
upon to assist in accordance with relevant resolutions of the General Assembly"). The
Commissioner's "good offices" is an umbrella concept under which to bring refugees who
do not come within the competence, or "immediate competence" of the United Nations.
The term "immediate competence" is employed but not defined in G.A. Res. 1499, 15 U.N.
GAOR Annex l (Agenda Item 33) at 27, U.N. Doc. A/4582 (1960).
8. See, e.g., G.A. Res. 32/68, 32 U.N. GAOR Supp. (No. 45) at 140, U.N. Doc. A/32/45
(1977) (continuing the Office of UNHCR and noting "the outstanding work ... perform-
ed ... in providing international protection ... to refugees and displaced persons ..."); G.A.
Res. 36/125,36 U.N. GAOR Sup. (No. 51) at 178, U.N. Doc. A/36/51 (1981) (commend-
ing the Office's manner in protecting and assisting refugees and displaced persons of
concern to it); G.A. Res. 35/41,35 U.N. GAOR Supp. (No. 48) at 180, U.N. Doc. A/35/48
(1980) (commending the Office's dedication in discharging its responsibilities of pro-
tection and assistance to refugees and displaced persons throughout the world); G.A. Res.
31/35,31 U.N. GAOR Supp. (No. 39) at 94, U.N. Doc. A/31/39 (1976) (commending the
Office's efficient manner of discharging its activities on behalf of refugees and displaced
persons).
9. Organization for African Unity Convention on Refugee Problems in Africa, Sept. 10,
1969, 1001 U.N.T.S. 45 [hereinafter OAU Convention].
10. Id. art. I, para. 2.
ll. 1984 Cartegena Declaration on Refugees, Nov. 22, 1984, reprinted in Annual Report of
the Inter-American Commission on Human Rights, OAS Doc.
OEA/Ser.L/V/11.66/doc.lO, rev.l (1984-85).
12. Id. art. III, para. 3.
118

13. 'B' status is accorded in Sweden, for example, to those who do not satisfy the 1951
Refugee Convention definition but who are identified as having valid humanitarian
reasons for being allowed to remain. See Refugees, Apr. 1985, at 20-22.
14. "Extended voluntary departure" is a discretionary practice in U.S. immigration law which
delays the moment of departure or removal. U.S. Immigration & Naturalization Serv.,
Operations Instructions§ 242.10e(3) (1979), reprinted in 4 C. Gordon & H. Rosenfield,
Immigration Law and Procedure 23-488.5 (1981). At June 30, 1986, it was benefitting
Afghans, Ethiopians, Poles, Ugandans and Lebanese on a periodically reviewable basis.
See T. Aleinikoff & D. Martin, Immigration: Process and Policy 726-43 (1986).
15. See, e.g., OAU Convention, supra note 9, art. II, para. 3:

No person shall be subjected by a Member State to measures such as rejection at the

frontier, return or expulsion, which would compel him to return to or remain in a
territory where his life, physical integrity or liberty would be threatened ...
Id. See also Declaration on Territorial Asylum, art. 3, G.A. Res. 2312, 22 U.N. GAOR
Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967) (no person "shall be subjected to measures
such as rejection at the frontier ...").
16. See supra notes 10, 12 and accompanying text (the OAU's and Cartagena Declaration's
expanded categories of refugees).
17. 1951 Refugee Convention, supra note 2, art. 1, para. 2.
18. Report of the United Nations High Commissioner for Refugees, paras. 22-23, U.N. Doc.
E/1985/62 (1985); Report on the Twenty-eighth Session of the Executive Committee of
the High Commission's Programme, para. 53(4Xc), U.N. Doc. A/AC.96/549 (1977).
19. See generally I. Brownlie, System of the Law of Nations: State Responsibility 132-58
( 1983) (Part 1).
20. See J. Pictet, The Principles oflnternational Humanitarian Law 27 (1966) (humanitarian
law strikes a balance between necessity and humanity).
21. See Perluss & Hartman, Temporary Refuge: Emergence of a Customary Norm, 26 Va.
J. Int'l L. 551, 570 & n.l04 (1986).
22. G. Goodwin-Gill, The Refugee in International Law 116 (1983).
23. Id.
24. See, e.g., OAU Convention, supra note 9, art. I, para. 2 (the duty of member states to
grant temporary refuge is triggered solely by conditions within the refuge-seeker's country
of origin).
25. One argument may be that the individuals or groups in question may return to a "safe
area" within their own country. Care must be taken in making such speculative judgments,
however. Qose attention must be paid to ethnic, religious, cultural and even political
differences which, among others, often make the domestic flight alternative unrealistic.
26. The extreme nature of any such case must be stressed. Before returning refugees to a
danger of death it must be demonstrated that: 1) such a return is necessary to avert some
greater evil, and 2) no alternative to return is available. These issues involve questions
of fact and are appropriate for judicial review. Cf. M. Walzer, Just and Unjust Wars
251-54, 323-27 (1977). Walzer questions whether one can choose between evils, unless
a supreme evil is averted: "If we are to adopt or defend the adoption of extreme measures,
the danger must be of an unusual or horrifying kind," such as Nazism. Id. at 253. Walzer
cautiously assesses the rule of necessity:

[T]he survival and freedom of political communities- whose members share a way of
life, developed by their ancestors, to be passed on to their children, are the highest
values of international society. Nazism challenged these values on a grand scale, but
 119
challenges more narrowly conceived, if they are of the same kind, have similar moral
consequences. They bring us under the rule of necessity (and necessity knows no rules).
Id. at 254.
27. See Report on the Thirty-second Session of the Executive Committee of the High
Commissioner's Programme, para. 57(2XII)B, U.N. Doc. A/AC.96/601 (1981), adopting
Conclusion 22 (XXXII), reprinted in the Appendix to this volume.
28. See, e.g., Geneva Convention for the Amelioration ofthe Condition of the Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75
U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition ofWounded, Sick
and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217,
T.I.A.S. No. 3363, 75 U.N.T.S. 85.
29. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287. See also the
Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the
Protection of Victims oflnternational Armed Conflicts (Protocol I), Dec. 12, 1977, U.N.
Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391 (1977).
30. See Commentary: 1-4 Geneva Conventions of 12 August 1949 (J. Pictet ed. 1952-1960);
P. Macalister-Smith, International Humanitarian Assistance (1985).
31. Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980).
32. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 39 U.N. GAOR Supp. (No. 51) at 198, U.N. Doc. A/39/51 ( 1984) [hereinafter
U.N. Convention Against Torture]. Article 1 of the Convention defines torture and notes
its purposes: obtaining information, punishment, intimidation, or "for any reason based
on discrimination of any kind." Id. art. 1, para. 1.
33. U.N. Convention Against Torture, supra note 32, art. 3, para. 1. Some delegations
indicated that their governments might wish to declare themselves not bound by this
section at the time of signature or ratification of the convention or accession insofar as
paragraph 1 of article 3 might not be compatible with obligations to non-parties to the
convention under pre-convention extradition treaties. Report of the Working Group on
a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
of Punishment, para. 12, U.N. Doc. E/CNA/1984/72 (1984).
34. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 222. Article 3 states: "No one shall be subjected to torture
or to inhuman or degrading treatment or punishment." ld. art. 3.
35. 2 D.P. O'Connell, The International Law of the Sea 853 (1984).
36. See cases cited in id. at 854.
37. The Eleanor (1809) Edw. 135, cited in id. at 855.
38. 2 D.P. O'Connell, supra note 35, at 857.
39. H. Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (1980). Shue's
triad of duties arises from his conception of basic rights. He argues that rights to security,
subsistence and liberty are "basic," constituting a core of rights which should receive
priority over preferences and nonessential rights. "Basic rights are the morality of the
depths. They specifY the line beneath which no one is allowed to sink." ld. at 18. Shue's
typology of correlative duties:
goes considerably beyond the usual assumption that for every right there is a single
correlative duty, and suggests that for every basic right-and many other rights as
well-there are three types of duties, all of which must be performed if the basic right
is to be fully honored but not all of which must necessarily be performed by the same
individuals or institutions.
120

Id. at 52.
40. J. Rawls, A Theory of Justice 114-17, 333-42 (1971).
41. Id. at 114.
42. Id. at 115.
43. Id. at 338.
44. Id. at 338-39.
45. Id. at 339.
46. Shue acknowledges that "[w]here food was absolutely scarce and not adequate for
everyone, no one could be required not to claim the food that was his or her right." H.
Shue, supra note 39, at 116. Rawls notes that "[w]e are not released from [a natural duty
to uphold a just constitution] whenever others are disposed to act unjustly. A more
stringent condition is required: there must be some considerable risks to our own
legitimate interests." J. Rawls, supra note 40, at 218-19. Cf. M. Walzer, Spheres ofJustice
51 ( 1983):
[I]fwe offered a refuge to everyone in the world who could plausibly say that he needed
it, we might be overwhelmed. The call "[g]ive me ... your huddled masses yearning to
breathe free" is generous and noble; actually, to take in large numbers of refugees is
often morally necessary; but the right to restrain the flow remains a feature of commu-
nal self-determination. The principle of mutual aid can only modify and not transform
admissions policies rooted in a particular community's understanding of itself.
47. See, e.g., Summary Record of the 386th Meeting, Thirty-sixth Session of the Executive
Committee of the High Commissioner's Programme, para. 76, U.N. Doc.
A/AC.96/SR.386 (1985) (population movements from Indochina resemble a "migration"
more than a refugee movement) (Australia); Summary Record of the 374th Meeting,
Thirty-fifth Session of the Executive Committee of the High Commissioner's Programme,
para. 15, U.N. Doc. A/AC.96/SR.374 (1984) (Australia); id. paras. 36-37 (Netherlands);
id. paras. 58-60 (France); Report of the Thirty-fifth Session of the Executive Committee
of the High Commissioner's Programme, paras. 20, 26, 76, 81, 87(l)(b), U.N. Doc.
A/AC.96/651 (1984).
48. Summary Record of the 392d Meeting, Thirty-sixth Session of the Executive Committee
of the High Commissioner's Programme, para. 24, U.N. Doc. A/AC.96/SR.392 (1985)
("The possibility of expanding the scope of article 1A(2) of the 1951 Convention to cover
all persecution resulting from conduct contrary to the customs of a country ... should ...
be considered with great care, since the matter was a very sensitive one.") (comments of
Mr. Fabre, France); see, e.g., Summary Record of the 381st Meeting, Thirty-fifth Session
of the Executive Committee of the High Commissioner's Programme, para. 20, U.N. Doc.
A/AC.96/SR.381 (1984) (by suggesting that the word "concept" be substituted for the
word "definition" in reference to the expanded mandate, and that the phrase "apply the
1951 Convention" be substituted for the phrase "apply the 1951 Convention in a
restrictive manner," Mr. Purcell of the United States meant that States are bound only
by the refugee definition in the 1951 Refugee Convention and the 1967 Refugee Protocol).
49. See, e.g., Report of the Subcomm. on International Protection on Irregular Movements
of Asylum-Seekers and Refugees, Thirty-sixth Session of the Executive Committee of the
High Commissioner's Programme, paras. 59-70, U.N. Doc. A/AC.96/671 (1985).
50. See, e.g., Summary Record of the 386th Meeting, Thirty-sixth Session of the Executive
Committee of the High Commissioner's Programme, para. 43, U.N. Doc.
A/AC.96/SR.386 (1985) (Federal Republic of Germany); Summary Record of the 372d
Meeting, Thirty-sixth Session of the Executive Committee of the High Commissioner's
Programme, para. 17, U.N. Doc. A/AC.96/SR.372 (1985) (Mexico); Summary Record of
 121

the 37lst Meeting, Thirty-sixth Session of the Executive Committee of the High Com-
missioner's Programme, para. 7, U.N. Doc. A/AC.96/SR. 372 (1985) (Lesotho); id. para.
2 (People's Republic of China); Summary Record of the 369th Meeting, Thirty-sixth
Session of the Executive Committee of the High Commissioner's Programme, para. 98
U.N. Doc. A/AC.96/SR.369 (1985) (Switzerland).
51. See, e.g., Summary Record of the 39lst Meeting, Thirty-sixth Session of the Executive
Committee of the High Commissioner's Programme, para. 48, U.N. Doc.
A/AC.96/SR.39l (1985) (Sweden); id. para. 50 (Switzerland); Summary Record of the
387th Meeting, Thirty-sixth Session of The Executive Committee of the High Com-
missioner's Programme, para. 44, U.N. Doc. A/AC.96/SR.387 (1985) (Switzerland);
Summary Record of the 373d Meeting, Thirty-fifth Session of the Executive Committee
of the High Commissioner's Programme, para. 68, U.N. Doc. A/AC.96/SR.373 ( 1984)
(Federal Republic of Germany); Summary Record of the 369th Meeting, Thirty-fifth
Session of the Executive Committee of the High Commissioner's Programme, para. 49,
U.N. Doc. A/AC.96/SR.369 (1984) (France); id. para. 109 (Switzerland).
52. See, e.g., Summary Record of the 387th Meeting, Thirty-sixth Session of the Executive
Committee of the High Commissioner's Programme, para. 44, U.N. Doc.
A/AC.96/SR.387 (1985) (Mr. Hegner, Switzerland); Summary Record of the 392d
Meeting, Thirty-sixth Session of the Executive Committee of the High Commissioner's
Programme, para. 12, U.N. Doc. AfAC.96fSR.392 (1985) (Mr. Hill, Canada).
53. Note on the Consultations on the Arrivals of Asylum-Seekers and Refugees in Europe,
U.N. Doc. A/AC.96/INF.l74, Annex V, at 2 (1985). But see infra note 56 and accom-
panying text.
54. Summary Record of the 39lst Meeting, Thirty-sixth Session of the Executive Committee
of the High Commissioner's Programme, para. 42, U.N. Doc. A/AC.96/SR.39l (1985).
55. Id. paras. 50-51.
56. Note on International Protection, Thirty-sixth Session of the Executive Committee of the
High Commissioner's Programme, supra note 7, para. 19.
57. Summary Record of the 39lst Meeting, Thirty-sixth Session of the Executive Committee
of the High Commissioner's Programme, supra note 54, para. 72.
58. Id.
59. Id. paras. 77-78. Even if the UNHCR's competence were extended to others, however,
no legal obligations could be implied on the basis of the 1951 Refugee Convention with
regard to the acceptance of asylum-seekers.
60. Id. para. 82.
61. Id. para. 82.
62. Not surprisingly, those states which are particularly generous in the granting of asylum
have responded with concern to what seems to be an unfair imposition on their liberality.
63. For further discussion of the development and application of the nonrefoulement principle,
see G. Goodwin-Gill, supra note 22, at 101-23. The author observes that nonrefoulement
through time promotes admission and emphasizes the international community's respon-
sibility to find solutions to large-scale influxes of asylum seekers. Id. at 119. Compare id.
at 120 (temporary refuge is the practical consequence of nonrefoulement through time),
with Perluss & Hartman, supra note 21, at 599 n.218 (temporary refuge and non-
refoulement are two separate principles).
64. See Report of the Group of Government Experts on International Co-operation to Avert
New Flows of Refugees, U.N. Doc. A/41/324 (1986).
 NONREFOULEMENT AND "HUMANITARIAN" REFUGEES:
CUSTOMARY INTERNATIONAL LAW
OR WISHFUL LEGAL THINKING?*

KAY HAILBRONNER

I. INTRODUCTION

The estimated number of refugees in the world ranges between eleven and
twelve million. 1 Only a small percentage of them are fleeing their home
countries due to particularized, well-founded fears of persecution on account
of their race, religion, nationality, membership of a particular social group,
or political opinion. 2 Such refugees are protected under international law by
the United Nations Convention Relating to the Status ofRefugees3 ("1951
Refugee Convention") and its additional Protocol Relating to the Status of
Refugees4 (" 1967 Refugee Protocol"}. The vast majority of refugees are, by
contrast, unprotected under codified international law. They are "humani-
tarian" refugees who seek shelter from conditions of general armed violence
or natural disaster. The 1951 Refugee Convention, whose definition of
"refugee" is based on individual political, religious, or racial persecution, is
no longer relevant to the majority of refugees. The recent mass movements
of persons fleeing civil war, military occupation, natural disasters, gross
violations of human rights, or simply bad economic conditions, 5 have em-
phasized the urgent need to reformulate the international legal regime which
addresses the problems of refugees.
Various scholars and international organizations have attempted to con-
struct new approaches to deal with mass influxes of humanitarian refugees.
In particular, the concept of nonrefoulement, along with approaches derived
from nonrefoulement, have been offered to fill the gap in current law. It is my
conclusion that state practice, particularly as shown by the asylum laws of
Western Europe, the United States, and Canada, does not support
nonrefoulement of all humanitarian refugees as a norm of customary inter-
national law. Instead, as the title to this essay indicates, nonrefoulement as

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
124

customary international law is more properly viewed as the product of

wishful legal thinking. Conversely, nonrefoulement of those who would be
subjected to torture or inhuman or degrading treatment by their home states
in violation of the widely recognized customary law against torture protects
a limited number of humanitarian refugees. A universal norm of nonrefoule-
ment is unlikely to crystallize in the near future because states fear losing
control of their borders. The reality of state interests militates against com-
plete coverage for humanitarian refugees.
This essay is principally concerned With the extent to which nonrefou/e-
ment exists as customary law for the humanitarian refugee. Specifically, it
will first review the definition of "refugee" contained in the 1951 Refugee
Convention. Second, it will analyze nonrefoulement against three backdrops:
as set forth in the 1951 Refugee Convention, as a proposed norm of
customary international law, and as expressed in municipal asylum laws of
Western European and North American states. Third, it examines the extent
to which nonrefou/ement in cases where the asylum-seeker would be subject
to torture upon return to his home country has developed as international
law to aid humanitarian refugees.

II. "HUMANITARIAN" REFUGEES UNDER INTERNATIONAL LAW

The definition of"refugee" in the 1951 Refugee Convention has dominat-

ed the regime of refugee law for the past three decades. The definition states
that the term "refugee" applies to any person who,

owing to well-founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable, or owing
to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country
of his former habitual residence ... , is unable or, owing to such fear, is
unwilling to return to it. 6

The definition does not apply to persons fleeing from generalized violence
or internal turmoil in, rather than persecution by, their home countries. Such
persons are generally considered to be "humanitarian" refugees rather than
political or social refugees as defined in the 1951 Refugee Convention. States
are not required by the Convention to provide assistance or protection to
humanitarian refugees. As one observer has noted, the 1951 Refugee Con-
vention definition "does not mark the bounds of need for humanitarian
action." 7 Moreover, a practical difficulty in applying the Convention defini-
 125

tion confronts states recelVlng a mass influx of humanitarian refugees

because "there simply is no time to do the individualized screening common-
ly necessary to apply the Convention definition ... .'' 8
Recognizing the needs of humanitarian refugees, the international com-
munity has been ready to help, albeit on a limited and ad hoc basis. States
have provided primary protection to those fleeing internal turmoil. For
example, Austria in 1956 and again in 1968 granted temporary sanctuary to
thousands of refugees from Hungary and Czechoslovakia. 9 Since then,
largely due to internal violence in countries of Southeast Asia, Africa, and
the Far East, millions of refugees have fled to neighboring states which have
provided temporary or permanent shelter from immediate danger. 10 As
further protection, the sheltering states have not returned aliens to their home
countries where their freedom or lives would be threatened by generalized
internal violence or gross violations of human rights. 11
International bodies have also reacted to the growing problem of mass
influx of humanitarian refugees. Originally, the competence of the United
Nations High Commissioner for Refugees (UNHCR) was restricted to
refugees as defined by the 1951 Refugee Convention,l 2 i.e., "Convention
refugees.'' 13 Since 1959, however, the UNHCR's competence has been
extended gradually 14 to cover all refugees, including "persons who have fled
their home country due to armed conflicts, internal turmoil and situations
involving gross and systematic violations of human rights.'' 15 In accordance
with its extended mandate, the UNHCR has also striven to enlarge the scope
of nonrefoulement to reach humanitarian refugees.
States have consistently bristled at the prospect of opening their borders
in a potentially unrestricted way. This is, however, precisely the consequence
of the UNHCR's expansive view. In the past, states have taken recourse by
limiting the mass influx of aliens from countries stricken with civil war,
poverty, or chaos. Throughout Europe, the United States, and Canada, the
arrival of large numbers of aliens has lent credence to the argument that
granting admission to displaced persons -theoretically the entire population
of a country at civil war - would ignore the limits to a country's ability to
absorb aliens. 16 It is this recurring absorption problem that focuses the
debate on the international law governing humanitarian refugees.

III. NONREFOULEMENT AND ASYLUM: TREATY LAW, CUSTOMARY LAW,

AND MUNICIPAL LAW

In reaction to the mass movements of persons during and after World War
II, international refugee law has developed through multilateral conventions,
the activities of international organizations, and the practice of states. Non-
126

refoulement is but one substantive part of this legal regime. Mass influxes of
humanitarian refugees have brought pressure to bear on the existing legal
structure. These traditional sources-treaty law, customary international law,
and municipal laws - provide a useful beginning.

A. Nonrefoulement and asylum under the 1951 Refugee Convention

Article 33 of the 1951 Refugee Convention provides for an obligation of
contracting states not to expel or return ("refou/er'') a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a
particular social group, or political opinion. 17 Thirty-five years after the
adoption of the nonrefoulement provision of the 1951 Refugee Convention,
its meaning is still unclear. The plain language 18 of the 1951 Refugee Con-
vention demonstrates a reluctance of states to enter into far-reaching obli-
gations to grant admission to, as opposed to non-return of, refugees. Fur-
thermore, those commenting on the 1951 Refugee Convention and the 1967
Refugee Protocol express the belief that states were unprepared to include
in the Convention any article on admission, as opposed to non-return, of
refugees. 19 The coverage of nonrefou/ement, based on these standards, is
limited to those who have already entered state territory, either lawfully2° or
unlawfully. 21
In the practice of most countries of first refuge, a sharp distinction
between return and rejection at the border has never been drawn. Humani-
tarian reasons support a more liberal interpretation of return, i.e., a view that
includes non-rejection of refugees at the border. Since nonrefoulement is
appropriate when a person is in danger of political persecution, the dis-
tinction between whether the refugee had managed to enter lawfully or
unlawfully the territory of the country of first refuge is rendered moot by the
overriding concern for a refugee whose only alternative would be a clear risk
of persecution. 22 Further complications arise due to the difficulty of deter-
mining whether an alien must be found to have set foot on the territory of
a country of refuge. 23
As a practical matter, most countries have admitted refugees who apply
at their borders and claim political persecution. A recent report on asylum
and refugee law concludes that "in all countries even persons still being at
the frontier seem to be protected against refoulement to a country where their
lives or freedom would be threatened on account of their race, religion,
nationality, membership of a particular social group or political opinion." 24
Occasionally, restrictions are made relating to the public interest in cases of
a mass influx of refugees or to the public order and safety of the state in
general. 25
 127

Several international instruments have expanded on the language in the

1951 Refugee Convention by explicitly including refusal of admission at the
frontier as an integral part of the nonrefoulement principle. The Council of
Europe Resolution (67) 14, recommends that states should

ensure that no one shall be subjected to refusal of admission at the

frontier, rejection, expulsion or any other measure which would have
the result of compelling him to return to, or remain in, a territory where
he would be in danger of persecution for reasons of race, religion,
nationality, membership of a particular social group or political op-
inion.26

Likewise, the United Nations has provided further support. The 1967 Unit-
ed Nations Declaration on Territorial Asylum27 provides that no person
"shall be subjected to measures such as rejection at the frontier or, if he has
already entered the territory in which he seeks asylum, expulsion or compul-
sory return to any State where he may subjected to persecution."28
In 1976, Sadruddin Aga Khan, then the United Nations High Com-
missioner for Refugees, commented on nonrefoulement and asylum. 29 He
rejected the suggestion that the nonrefou/ement rule could be considered a
general obligation to admit refugees who present themselves at the border.
Aga Khan argued that "whenever it has been the intention of governments
to deal with asylum proper... , they have expressly referred to rejection at
the frontier, and not simply to return or expulsion .... " 30 In support of his
view, Aga Khan cited the Conference on Territorial Asylum of 1977 31 in
which all proposals to commit states to grant refugees a right of entry were
defeated. 32
Aga Khan's conclusion that "[s]tates are reluctant to make a contractual
commitment of a permanent and unlimited nature in a field in which too large
a part is left to the hazards of internationallife" 33 is still a valid description
of the present state of international law. His insight does not imply, however,
that the signatories to the 1951 Refugee Convention have kept complete
freedom to reject asylum seekers at their frontiers. State practice, along with
the recorded views of states and the general development of human rights
concepts, supports an acceptance of a broad understanding of the non-
refoulement rule contained in article 33 of the 1951 Refugee Convention. 34
The traditional reservation of states concerning the right of asylum is a
threat to the interpretation of article 33. According to Goodwin-Gill/ 5 states
retain discretion in both the grant of durable asylum and the conditions
under which it may be enjoyed or terminated even though they may be bound
by the principle of nonrefou/ement. 36 Thus, the prerogative of states to grant
asylum can be reconciled with the obligations under article 33 by restricting
128

the concept of asylum to a lasting solution in contrast to a temporary refuge

which would be granted even in case of a mass influx of refugees. 37
In their domestic laws, many states have not interpreted their concepts of
asylum for political refugees as a permanent solution. Rather, asylum has
been interpreted as shielding refugees from protection against persecution
and offering a provisional stay in that country. 38 Thus, asylum may be
terminated when the political conditions change or when a refugee has found
protection elsewhere. 39 As a further complication, temporary refuge often
proves to be permanent since a third country is often unprepared to admit
a refugee who has already found protection elsewhere.40
Assuming a broad understanding of nonrefoulement, the rule cannot be
interpreted as implying a general obligation to admit large numbers of aliens
under all circumstances. The United Nations Declaration on Territorial
Asylum made an exception to the broad concept of nonrefou/ement "for
overriding reasons of national security or in order to safeguard the popu-
lation, as in the case of a mass influx ofpersons."41 A similar provision was
adopted during the 1977 Conference on Territorial Asylum. 42 A broad
concept of nonrefoulement therefore cannot be considered an absolute prin-
ciple.43 Exceptions have been made not only for reasons of national security
and public order under article 33, paragraph 2 of the 1951 Refugee Con-
vention,44 but also for the mass influx of aliens. These two exceptions explain
the ambivalent legal position of certain states with regard to a broad concept
of nonrefou/ement. In practice, states have resorted to refusing disembar-
kation or landing in case of the large-scale movements of persons. 45
States have jealously guarded their right to determine their own proce-
dures for determining whether an applicant's claim satisfies the requirements
for a grant of asylum. Likewise, the principle of nonrefou/ement has never
been interpreted as excluding completely any possibility for police or immi-
gration officers to return persons at the frontier if it appears that their
applications for asylum would be unfounded. 46 So viewed, the application
of the 1951 Refugee Convention does not support a broader customary norm
of nonrefoulement. Rather, the nonrefou/ement provision of the 1951 Refugee
Convention indicates that states do not lightly divest themselves of their right
to control their borders, a fundamental aspect of state sovereignty.

B. Nonrefoulement as a norm of customary international law

Commentators have taken the view that the principle of nonrefoulement
must be considered today as a rule of customary international law .47 Wheth-
er this view finds sufficient support in a virtually uniform and extensive state
practice accompanied by the necessary opinio juris48 is doubtful. Although
the 1951 Refugee Convention has been ratified by a large number of
 129

countries, almost all states of Eastern Europe, Asia, and the Near East have
consistently refused to ratify refugee agreements containing nonrefoulement
clauses. The drafting history of the United Nations Declaration on Territori-
al Asylum,49 as well as the statements made during the 1977 Conference on
Territorial Asylum, 50 show a reluctance to enter into legally binding obli-
gations to admit a large number of refugees even on the basis of a temporary
stay. 51 On the other hand, states have never claimed a general right to return
refugees to a country where they may face severe persecution on account of
race, religion, or political opinion. For this reason, the principle of non-
refoulement has been described as universal customary law in the making,
and regional customary law in Western Europe, the American Continent,
and Africa. 52

1. The "peremptory norm" of nonrefoulement

Despite the reluctance of states to bind themselves through treaties, the
UNHCR has sought to have the principle of nonrefoulement characterized
as a peremptory norm of customary international law. 53 The UNHCR
definition of nonrefoulement stems from a

general agreement reached amongst states which participated in the

Consultations on the Arrivals of Asylum-seekers and Refugees in
Europe that persons who cross international boundaries to escape from
severe internal upheavals and armed conflicts should not be returned
against their will to areas where they may be exposed to danger. 54

It is unclear whether UNHCR's plea for an extended version of the

principle of nonrefoulement need be understood as a proposal de lege ferenda
or as a statement de lege lata. The first assumption finds support in the
formulation that "there is a growing recognition by States" that persons who
have been displaced for reasons of severe internal upheavals or armed
conflict "should be protected from danger through the granting of at least
temporary asylum and not subjected to refoulement until conditions in their
country of origin permit their return .... " 55 The report continues to acknow-
ledge that "there is nevertheless at times an absence of agreement as to the
form of protection measures to which they should be entitled." 56
Typifying this view, Goodwin-Gill casts the principle of nonrefoulement of
humanitarian refugees as part of customary international law. 5 7 Relying on
state practice as persuasive evidence of a customary rule of international law,
even in the absence of any formal judicial pronouncements, Goodwin-Gill
finds that states are enjoined from taking any action which returns or has
 130

the effect of returning humanitarian refugees to persecution or danger to life

or limb. 58
The proponents of a customary international norm, however, ignore the
fact that a rule of customary international law requires proof of consistent
state practice. 59 Neither the UNH CR's extended mandate60 nor its repeated
recommendations that de facto refugees should at least be protected against
refoulement and be permitted to remain in the territory of refuge until an
appropriate solution is found for them61 provides sufficient evidence of the
emergence of a customary international law covering humanitarian refugees.
The UNHCR, under its extended mandate, protects the interests of Con-
vention and de facto refugees, including the improvement of their legal
status. 62 1t is within the UNHCR's mandate to represent the interests of the
refugees and request states to grant temporary refuge. These efforts have
resulted in demands for a wider understanding of the principle of nonrefoule-
menr3 as well as for financial assistance and generous admission of de facto
refugees by states. 64
The activities of the UNHCR, however, must not be confused with state
practice. Although the UNH CR fulfills its functions with the agreement of
states, it remains a special body entrusted with humanitarian tasks. In
addition, it is charged with proposing solutions to the urgent humanitarian
problems of refugees, whether they are considered refugees in the sense of
the 1951 Refugee Convention or whether they have left their home country
due to civil war, severe internal upheavals, or natural disasters.
Furthermore, the fact that the UNHCR continues to care for the interests
of de facto refugees cannot be considered evidence of an opinio juris by states.
State practice resulting from the UNHCR's recommendations may eventu-
ally lead to a customary internationallaw. 65 UNHCR's proposals as such,
however, provide little help to decide the crucial question of whether tempo-
rary refuge of victims of armed conflict can be considered as a legal require-
ment or simply as a commendable humanitarian policy when circumstances
permit.
Moreover, a close look at the UNHCR's recent practice shows the in-
creased use of cautious terminology concerning the state of customary
international law. The UNHCR Notes on International Protection of 1984
and 198566 do not assert that persons who have been forced to seek refuge
outside their country of origin because of armed conflict or other political
or social upheavals have an individual right of temporary refuge even if one
interprets this term in the sense of non-repatriation. Instead, the High
Commissioner referred to difficulties of a definition of the legal status of de
facto refugees which should include at least protection against refoulement
and permission to remain in the territory. 67 Nonetheless, when referring to
 131

cases of expulsion or return, the principle of nonrefou/ement is usually

interpreted by the UNHCR in a wide sense to cover de facto refugees. 68
Within Europe, it is important to examine the various efforts to include
a general obligation of nonrefou/ement in the Convention for the Protection
of Human Rights and Fundamental Freedoms69 ("European Convention on
Human Rights"). A proposal submitted in 1961 by the Council of Europe
Consultative Assembly provided for a right not to be rejected or returned if
the alien would be faced with a concrete danger threatening his life, personal
integrity, or freedom. 70 Although the draft provision contained an important
exception clause for reasons of national security or for the protection of the
population, the proposal did not find sufficient support. 71
By contrast, Recommendation 773 of the Council of Europe Parliamenta-
ry Assembly recognized the need for providing temporary asylum to "de facto
refugees." 72 One of the aims of Recommendation 773, however, was to grant
protection to those persons who have gone through the eligibility procedure,
but whose requests for refugee status were refused for reasons unrelated to
the merits of their cases. 73 Recommendation 773 also covers persons who
do not wish to apply for refugee status for personal reasons or for reasons
of personal safety. 74 A person may be deterred from applying for refugee
status for fear of retaliatory measures against relatives or against property
in the country of origin, fear of prejudice on account of refugee status in case
of return, fear of collusion between the authorities of the country of residence
and the country of origin, fear of "denationalization," and fear of being
branded as a "traitor to the cause" by other militant exiles. 75
The Committee of Ministers, which is the representative organ of the
Council of Europe and responsible for an examination of the recommen-
dations of the Parliamentary Assembly,76 suggested in Recommendation
R(84)1 that

governments of member states, without prejudice to the exceptions

provided for in Article 33, paragraph 2 of the [1951 Refugee] Con-
vention, ensure that the principle according to which no person should
be subjected to refusal of admission at the frontier, rejection, expulsion
or any other measure which would have the result of compelling him
to return to, or remain in, a territory where he has a well-founded fear
of persecution for reasons of race, religion, nationality, membership of
a particular social group or political opinion, shall be applied regardless
of whether this person has been recognised as a refugee under the [ 1951
Refugee Convention] and the [1967 Refugee Protocol]. 77

Recommendation R(84)1 is remarkably clear in extending the principle of

nonrefoulement "to any decision or measure taken with respect to a person
132

- either at the frontier or within the territory of a state - that would have the
effect of obliging that person to remain in or return to a country where he
would be in danger of persecution."78 Recommendation R(84)1 "also does
not distinguish between the lawfulness or unlawfulness of the entry or
residence of the person concerned. " 79
On the other hand, the scope of application of Recommendation R(84)1
is clearly limited to persons meeting the conditions specified in the 1951
Refugee Convention, as amended by the 1967 Refugee Protocol. The pream-
ble refers to article 3 of the European Convention on Human Rights, 80
which, according to the European Commission of Human Rights, prohibits
the expulsion or extradition of an alien to a given country when there is a
serious risk that the treatment that person is likely to receive corresponds
to the definition of inhuman and degrading treatment within the meaning of
article 3. 81
The point at which the UNHCR's view of nonrefou/ement diverges from
state practice is the point at which wishful legal thinking replaces careful
factual and legal analysis. The requirements for the existence of customary
international law - consistent state practice and opinio juris - simply are not
met. Nor does the Council of Europe's practice support the view that a right
of nonrefou/ement in cases of armed conflict or severe internal upheaval has
developed as a rule of regional customary international law.

2. The "emerging norm" of temporary refuge

Temporary refuge for humanitarian refugees has similarly been claimed as
a customary rule of international law by Professors Perluss and Hartman. 82
A customary norm of temporary refuge, 83 they argue, "emerged out of the
principle of balance between necessity and humanity which is the essence
of humanitarian law." 84 Under this view, temporary refuge is understood as
a civil right of a person fleeing internal armed conflict to be left alone and
not to be forcibly repatriated by the state of refuge. A state, they argue, "is
forbidden to repatriate the alien back to a state engaged in an internal armed
conflict regardless of the nationality of the alien and regardless of the lack
of reciprocity in adherence to the norm or the unavailability of burden-shar-
ing arrangements with other states." 85
Perluss and Hartman do not treat sufficiently the critical issue of whether
temporary refuge or nonrefoulement carries with it a right to non-rejection at
the frontier. Moreover, the extent of the rising obligation itself remains rather
obscure. On the one hand, Perluss and Hartman emphasize that the norm
imposes only a passive obligation on states. 86 On the other hand, they argue
that "its effective implementation may also entail some active participation
by the refuge state. " 87 Part of this rising obligation must logically require
 133

states of temporary refuge to provide the basic necessities of life. 88 As the

obligations of the norm become clearer, the futility of describing it as passive
grows obvious. It necessarily entails affirmative action.
To support the emergence of a rule of temporary refuge, its proponents
have invoked the practice of states in granting permanent or at least tempo-
rary shelter to large numbers of persons not qualifying as refugees under the
1951 Refugee Convention. 89 A close examination of state practice, however,
reveals a somewhat more ambiguous picture. There are admittedly nu-
merous examples of assistance provided by states to humanitarian re-
fugees.90 The array of protection afforded, however, differs considerably
from state to state. In many instances, states have simply admitted all
refugees presenting themselves at the border. 91 In other instances, states
have been more cautious by granting parole or temporary or permanent
residence to those deemed deserving of special protection. 92 The term "tem-
porary refuge" has never been consistently applied as a distinct concept of
domestic refugee law.
Temporary refuge as a legal concept seems to obscure the real issue of a
state's obligation to shelter an indefinite number of aliens. Although the
definition of temporary shelter, asylum, or refuge is broad in Africa and Asia,
where millions of refugees have fled "temporarily" across frontiers to find
shelter in border camps,93 the situation in Europe is different. With the
exception of the Austrian example,94 the concept of temporary refuge has
rarely been used to handle humanitarian refugees.
The question critical to the temporary refuge notion that often arises is
whether an alien is to be admitted or granted a prolonged stay. Admission
alone does not imply a right of immigration. Thus, "temporary" does not
always have a useful meaning. For example, the residence of refugees recog-
nized under the 1951 Refugee Convention may be terminated if the political
conditions change in the refugees' home countries. 95 Moreover, opportunity
for third country resettlement is not assured once an alien has been
admitted. 96 An indefinite stay results, therefore, whenever third country
resettlement cannot be secured and where the refugee's home country does
not experience political change.
Although generally recognizing the need to participate in the solution of
problems of humanitarian refugees, states have not yet developed any bind-
ing legal standards. Faced with situations of large-scale influx of aliens,
states have felt free to determine, according to their own laws, whether and
under what conditions large numbers of refugees should be granted refuge.
In some cases, states have refused the landing of boat people on their
shores. 97 The United States has adopted a similar policy not to admit
civilians from El Salvador or Guatemala, even on a temporary basis. 98 Other
states have taken recourse to strategies such as introducing strict standards
134

of granting asylum or detaining asylum seekers. 99 In other cases, refugees

have even been repatriated against their will, although in general the volunta-
ry character of repatriation of large numbers of refugees has been recogn-
ized.100
In individual cases, there is no indication in the practice of states that
deportation or expulsion could be challenged based on status as a humani-
tarian refugee. As a further restriction, temporary refuge has recently been
made dependent upon third country resettlement arrangements and financial
assistance. 101 In 1979 the Foreign Ministers of the Association of Southeast
Asian Nations announced that refugees would be admitted only on the basis
of firm commitments from third countries that they would be resettled within
a reasonable time. 102
The practice of many states indicates that temporary or permanent refuge
is granted to large groups of refugees on a purely humanitarian basis without
accepting any firm legal obligations. 103 There is no evidence of a general
recognition of an individual right of temporary refuge for any humanitarian
refugee in case of return. Domestic law indicates that states have granted
temporary refuge on the basis of general decisions to admit certain categories
of refugees. 104 The criteria, however, under which certain groups of aliens
may be tolerated vary considerably. In some countries, the government is
authorized to suspend deportation generally for "humanitarian" reasons
which may include a general pattern of gross and persistent violations of
human rights, famine and natural disasters, or civil wars. 105 Other countries
will shelter aliens from states besieged by civil war or severe internal distur-
bances regardless of evidence of individual risk. 106 In short, there is no
consensus on the definition of a "humanitarian" refugee who would other-
wise deserve some form of temporary refuge.
Like the practice of states, international legal instruments, resolutions,
and declarations of international bodies do not provide evidence for finding
a customary international norm of temporary refuge. The Organization of
Mrican Unity Convention Governing the Specific Aspects of Refugee Prob-
lems in Mrica 107 ("OAU Convention") is the sole international convention
explicitly providing for an extended definition of the term "refugee" to
include every person who

owing to external aggression, occupation, foreign domination or events

seriously disturbing public order in either part of [sic] the whole of his
country of origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his
country of origin or nationality. 108
 135

Although little is known about the exact domestic application of the OAU
Convention in the contracting states, the OAU Convention has served as a
legal basis for a number of Mrican states to provide temporary refuge to
nationals of neighboring countries who fled violence or civil strife. Notably,
however, Nigeria and Ghana do not grant an individual the right to rely on
the extended definition of the OAU Convention. 109 Since the OAU Con-
vention does not have the force oflaw within the municipal sphere, an alien
has no legal protection directed specifically against deportation or refusal of
an application of asylum. 110
In addition, article I of the OAU Convention provides for a wide range
of exceptions. Accordingly, the OAU Convention does not apply to any
refugee if "he has seriously infringed the purposes and objectives of this
Convention," 111 or if "he has been guilty of acts contrary to the purposes
and principles of the Organization of Mrican Unity" or "of the United
Nations." 112 Finally, it is explicitly up to each of the contracting states to
determine whether an applicant is in fact a refugee. 113 These provisions offer
contracting states wide discretion. It is doubtful, therefore, whether the
OAU Convention really does lend support to the supposition that a civil
right of temporary refuge triggered by armed conflict can be considered as
regional customary international law. The practice of contracting states in
cases of mass influx of persons also seems to be far from certain. Several
African states have expelled large numbers of aliens notwithstanding internal
conditions approaching outright civil war or serious internal upheavals. 114
An analysis of the 1984 and 1985 Sessions of the Executive Committee
of the UNHCR's Programme 115 does not support the view that a norm of
temporary refuge has already been universally accepted! 16 In 1985, the
Director of International Protection acknowledged that the UNHCR

had never taken the view that persons who would be in serious danger
if they were to return to their country of origin because of serious
internal upheavals or armed conflict should have the same status as
refugees within the meaning of the 1951 [Refugee] Convention and the
1967 [Refugee] Protocol. The [UNHCR's] position was that such
persons should be protected against forcible return and given an appro-
priate legal status corresponding to their particular situation and
needs. 117

The conclusions adopted by the Executive Committee, however, do not

reflect a general reception for this demand. While the Executive Committee
acknowledged the importance of the UNHCR's international protection
function, and welcomed the continued acceptance and development of
international refugee law in certain areas, 118 it also noted with serious
136

concern that "the basic rights of refugees in different areas of the world had
continued to be disregarded and that in particular refugees were being
exposed to ... attacks, arbitrary detention and refoulement." 119
A similar picture is found in the 1984 Report of the Executive Com-
mittee.120 Again, after an opening statement by a UNHCR official express-
ing the hope that persons compelled to flee from "man-made disasters"
would be permitted to remain in the sheltering state on a humanitarian
basis, 121 the report continued: "The desirability of granting asylum, at least
on a provisional basis, to persons who, for compelling humanitarian reasons,
ought not to be returned to their country of origin was generally acknowledg-
ed. Several speakers pointed to the difficulty of accepting this as a legal
obligation at the present stage." 122
The reluctance of states to adopt clear-cut legal obligations is again
reflected in the conclusions by the Executive Committee, which noted vague-
ly "that special international protection problems have arisen due to the
changing character of refugee movements" and in expressing satisfaction "at
the steps taken by the High Commissioner to address these problems ... " 123
A somewhat stronger view as to the legal status of de facto refugees seems
to have been taken during the Consultations on the Arrivals of Asylum-
Seekers and Refugees in Europe. 124 The outcome from this "entirely infor-
mal meeting" is not sufficient to find a general recognition of a new customa-
ry rule of temporary refuge extending the scope of the nonrefou/ement
principle clearly beyond the 1951 Refugee Convention's definition of "re-
fugee."

C. Municipal asylum provisions

In further support of an emerging picture that shows that states have been
reluctant to relinquish their sovereignty, municipal laws demonstrate that
neither nonrefoulement nor temporary refuge for humanitarian refugees is
currently supported by state law or practice. 125 The following survey dis-
cusses asylum laws and their varied responses to influxes of humanitarian
refugees. The obvious lack of definitional and procedural uniformity indi-
cates the absence of consistent state practice to support customary law.
A recent Portuguese law on asylum provides for a grant of asylum to
persons not qualifying as refugees under the 1951 Refugee Convention if the
situations in their home countries are characterized by armed conflict or
gross and systematic violations of human rights. 126 This rather generous
concept of asylum, however, is somewhat restricted by a general clause
permitting the refusal of asylum when the national security or the protection
of the population, especially due to the economic or social situation of the
country, requires such a measure. 127 In addition, the jurisdiction of the
 137

Portuguese Supreme Court seems to have granted the government a wide

power "to accept or refuse freely" an application for asylum. 128
In the Netherlands, a Dutch Aliens Circular provides for a grant of asylum
to "persons who for humanitarian reasons, cannot reasonably be required
to return to their country of origin considering the political situation
there." 129 Civil war, foreign interventions, or severe disturbances of public
security and public order, however, are not sufficient, according to Dutch
case law, to entitle persons to a de facto refugee status. 130 "Humanitarian
reasons" under Dutch case law are interpreted in such a way that a person
must be at risk in his country of origin because of his race, religion, social
group, or political conviction, although a risk need not yet be great enough
to warrant the term "persecution." 131
In Sweden, persons invoking "external aggression, occupation, foreign
domination or events seriously disturbing public order in either parts or the
whole of [their] country of origin" are neither accepted as Convention
refugees, nor as de facto refugees. 132 These persons are tolerated and may
be granted residence permits, provided it would be tantamount to danger to
life or freedom to return them to their country of origin. 133
In the Federal Republic of Germany, persons fleeing from some specified
countries in which they might be faced with danger from civil war, foreign
occupation, or politically adverse conditions are generally tolerated in spite
of an unsuccessful application for political asylum. 134 Humanitarian re-
fugees as such would not be granted entry. 135 The practice to suspend
expulsion or deportation is based on administrative regulations which may
be changed by the federal government and the states at any time as a matter
of aliens policy. No deportation as yet has ever been held illegal on the
ground of a general rule not to be returned to a country stricken with civil
war or generalized internal violence. Thus, persons from countries with
severe internal upheavals have never been considered to be automatically
entitled to temporary refuge. The limits of this discretionary power of admin-
istration have been marked by a rule that no alien may be exposed to torture
or inhuman or degrading treatment. 136 There are no indications, however,
that the power of the federal government to change the present practice to
tolerate the prolonged stay of a large number of de facto refugees from some
specified countries could be questioned by the courts under the general rules
of public internationallaw. 137
In France, large numbers of nationals of Cambodia, Laos, and Vietnam
have been admitted regardless of their status as Convention refugees. There
are no indications, however, as to a general principle of admission of huma-
nitarian refugees of whatever country or, a fortiori, a civil right not to be
returned in a situation of civil war or internal disturbance. 138
138

In the United Kingdom, civil wars and similar disturbances do not seem
to give rise to any individual claim of asylum, nor do they give rise to a right
of stay. In the case of a Tamil from Sri Lanka, an adjudicator held that
although the applicant may be a victim of arbitrary and unpredictable mob
violence, this did not amount to a well-founded fear of persecution. 139
In the United States, aliens not meeting the Immigration and Nationality
Act's definition of "refugee" may be admitted for humanitarian reasons
under the parole power. 140 Special classes of aliens have also been granted
"extended voluntary departure" when circumstances in their home countries
make return dangerous or otherwise unadvisable. 141 On a country-wide
basis, deportable aliens have been allowed to remain in the United States
temporarily until the conditions in their home country have changed. 142 If
the parole or suspension of deportation extends for a long period of time,
aliens who have created strong ties to the United States have been allowed
to become permanent resident aliens. 143 It is important to note that the
parole power and extended voluntary departure have not been exclusively
based on humanitarian considerations, but rather have been based also on
broader aspects of foreign immigration policy. 144 The United States govern-
ment is free to determine those countries which qualify for temporary sus-
pension of Immigration and Naturalization Service procedures, as in the
case of Poles, Afghans, Nicaraguans, and Ethiopians. 145 The denial of
extended voluntary departure to Salvadorans has been justified by the
Reagan Administration on the ground that such a grant would serve as a
stimulus for massive illegal immigration to the United States from nearby
countries undergoing civil strife. 146 An action challenging this denial was
dismissed by a federal district court. 147
The United States government has generally taken the view that it is
necessary to furnish evidence that the individual applicant is likely to be
targeted for persecution. It is not sufficient to show that an alien will return
to the general risks faced by the bulk of the population even if the country
concerned is stricken with political oppression. 148 The courts have upheld
this distinction. Situations of "reported anarchy" do not provide a basis for
an asylum claim or for a withholding of deportation. 149 The courts have
rejected the view that no person should be returned to El Salvador because
of the civil war there. Otherwise, "it would permit the whole population, if
they could enter this country some way, to stay here indefinitely." 150 In
Bolanos-Hernandez v. INS, 151 the United States Court of Appeals for the
Tenth Circuit affirmed that "general evidence of widespread conditions of
violence affecting all residents of a country is not, by itself, sufficient." 152
In Switzerland, a clear distinction is made between Convention refugees
and persons having fled from civil war, internal disturbances, or famine. 153
The latter category of persons does not enjoy any protection against ex-
 139

pulsion or deportation. 154 Their prolonged stay, however, may be tolerated

when there are special reasons making the deportation impossible, such as
when there is a concrete danger of inhuman treatment or torture and there
is no other protection available. 155 In addition, Switzerland has admitted by
global admission programs groups of refugees from certain countries. 156
In Canada, the courts have decided that civil war, even on religious
grounds, does not constitute persecution. 157 In times of crisis, however,
displaced persons may be admitted under relaxed selection criteria on huma-
nitarian grounds. 158 The authority for their admission has been exercised to
assist people fleeing from Indochina, oppressed groups in Poland and
certain Latin American countries, and voluntary exiles from countries in
Eastern Europe. 159 There is support for a general principle not to return
people to countries in which they would have to face civil war. 160
Australia has also admitted a large number of humanitarian refugees
under special arrangements. There are programs for certain areas such as
Indochina, Latin America, East Timor, as well as a Global Special Humani-
tarian program setting target quotas with an overall ceiling. 161 It seems that
no clear distinction is made between refugees in the sense of the 1951
Refugee Convention and persons displaced by civil strife. 162 The granting of
asylum, however, is generally considered to be a discretionary matter for the
Minister oflmmigration with considerable political implications for relations
between Australia and the country fled. An alien whose application for
refugee status has been rejected may be granted a residence permit on special
humanitarian grounds. 163 The alien, however, will be able to challenge his
deportation only if there is a concrete danger of being persecuted. 164
There is a widespread practice of states to respond by special programs
or internal regulations to large refugee movements arising out of civil war,
internal disturbances, foreign occupation, natural catastrophes, or a general
situation of gross violations of human rights. Special admission programs,
as well as the toleration of humanitarian refugees, however, are usually based
on general considerations of humanity or foreign policy. The policy of the
United States, therefore, is by no means singular. With very few exceptions,
domestic law is not based on a general and unlimited obligation to grant
temporary refuge to persons fleeing generalized internal violence or civil war.
There is no evidence at all for a general recognition of an individual right of
humanitarian refugees not to be returned or repatriated. On the contrary,
states have generally taken care not to narrow the range of possible re-
sponses to mass influxes of aliens. 165
It has been argued that conflicts between an "emerging norm" of tempora-
ry refuge and municipal laws do not undermine the validity of the norm since
a sovereign right to exclude aliens can no longer be regarded as absolute. 166
This argument is not convincing. The result that the argument tries to prove
140

is taken as a prerequisite. It is common knowledge that states no longer enjoy

absolute sovereignty. The real question is to what extent states have subject-
ed their sovereign power to admit .aliens to public international law. Munici-
pal law, in fact, shows that states are not prepared to surrender in advance
the ultimate option of returning to their home countries large categories of
persons not meeting the definition of the 1951 Refugee Convention! 67

IV. NONREFOULEMENT IN CASES OF TORTURE AND INHUMAN OR

DEGRADING TREATMENT

Unlike nonrefoulement or temporary refuge for humanitarian refugees, the

right of persons not to be subjected to torture or inhuman or degrading
treatment may be considered a peremptory rule of customary international
law in spite of uncertainties in the definition of torture and inhuman treat-
ment. 168 As such, it can provide protection-albeit limited-for humanitarian
refugees who cannot at this time enjoy a customary international norm of
nonrefoulement. The prohibition on torture is confirmed as a basic human
right in virtually all regional and universal treaties concerning human rights
and fundamental freedoms as well as in many resolutions of the United
Nations General Assembly and in such regional international organizations
as the Council of Europe and the Organizations of Mrican Unity. 169 Nation-
al courts have repeatedly based decisions on the assumption that torture
constitutes a violation of intemationallaw. 170
The application of the nonrefoulement principle to torture or inhuman or
degrading treatment, however, does not necessarily follow from the general
prohibition on torture. Traditional international law does not attribute inter-
national responsibility to states arising from human rights violations by other
states. 171 Limitations to this principle, however, have emerged as a result of
a changed perception of human rights. It is generally recognized that the right
of states to expel or deport aliens is not unlimited. 172 A state, therefore,
participates in violations of basic human rights by other states by surrender-
ing an alien to his pursuers.
For example, article 33 of the 1951 Refugee Convention may provide a
duty by states to give humanitarian assistance when an alien faces persec-
ution for political, religious, or racial grounds by his home state. The Su-
preme Court of Switzerland, as well as the Federal Administrative Court and
the Constitutional Court of the Federal Republic of Germany, have adopted
this idea. In doing so, they have enunciated a rule that a state must not
contribute to torture by a third state by the extradition, expulsion, or depor-
tation of a potential victim. 173 The Swiss Supreme Court and the German
 141

Constitutional Court have explicitiy based their decisions on a customary

rule of internationallaw! 74
Jurisdiction stems from a principle developed by the European Com-
mission of Human Rights in interpreting article 3 of the European Con-
vention on Human Rights. Article 3 prohibits torture and inhuman or
degrading treatment. 175 Nothing is said about a right of aliens to a residence
permit. The Convention, therefore, does not include a right to asylum or a
freedom from expulsion or deportation. The European Commission of Hu-
man Rights, however, has made clear that

Contracting States have none the less agreed to restrict the free exercise
of their rights under general international law, including their right to
control the entry and exit of foreigners, to the extent and within the
limits of the obligations they have accepted under the Convention
[citation omitted]. Consequently, the expulsion or extradition of an
individual could, in certain exceptional cases, prove to be a breach of
the Convention and particularly of Article 3, whilst there are serious
reasons to believe that he could be subjected to such a treatment
prohibited by the said Article 3 in the State to which he must be sent. 176

The Commission has examined whether extradition, expulsion, depor-

tation, repatriation, or transfer to another country for trial constitutes inhu-
man or degrading treatment. 177 It has interpreted article 3 of the European
Convention on Human Rights as an obligation to afford humanitarian
assistance in cases of gross violations of human rights by other states. No
contracting state may extradite, deport, or repatriate an alien to a country
in which he would face a severe violation of his basic human rights
amounting to torture or inhuman or degrading treatment. 178
The jurisprudence concerning article 3 of the European Convention on
Human Rights, however, does not support the view that a general right of
temporary refuge is granted for aliens faced with civil war or severe internal
upheavals. 179 As the European Commission of Human Rights has noted,
"before treatment can be considered to be inhuman, it must reach a certain
stage of gravity: causing considerable mental or physical suffering." 180
Generally speaking, a gross violation or entire suppression of basic human
rights may constitute inhuman treatment while torture is defined as an
aggravated form of "inhuman treatment causing very serious and cruel
suffering." 181
The European Commission of Human Rights requires additionally that an
alien must furnish prima facie evidence of his allegations as to the danger of
torture or inhuman treatment. 182 There must be substantial grounds to fear
that such treatment will actually be inflicted upon the alien. 183 Aliens fleeing
142

from civil war or severe internal upheavals or generalized violence thus

cannot rely on the protection afforded by article 3 of the European Con-
vention on Human Rights as long as they are affected only as victims of a
generalized violence or terror which is not particularly directed against
them. 184 Similarly, general political conditions ofintemal turmoil, violence,
suppression, or violations of human rights have been considered as not
sufficient to furnish evidence of a concrete danger of inhuman treatment. 185
Thus, complaints against deportation or extradition to countries affected by
serious internal disturbances in, for example, Turkey, 186 Pakistan, 187
Vietnam, 188 Ghana, 189 and Poland, 190 have been rejected when there were
no serious reasons to believe that the persons concerned would be subjected
to inhuman treatment.
The Commission in evaluating the evidence furnished will examine wheth-
er the person is deported or extradited "to a country in which, due to the
nature of the regime or the particular situation obtaining in that country,
basic human rights, such as are guaranteed under the Convention, are
subject to continuous and gross violation." 191 As under article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment192 ("United Nations Convention
against Torture"), a consistent pattern of gross, flagrant, or mass violations
of human rights may facilitate the furnishing ofprima facie evidence but does
not dispense with the requirement of an actual concrete danger. It is not
necessary, however, to prove a danger of political persecution by the state.
Many questions remain yet to be answered as to the exact scope of article
3 of the European Convention on Human Rights. Specifically left unanswer-
ed is the reaction to claims of aliens for temporary refuge in situations of civil
war or gross violations of human rights. The practice of the European
Commission of Human Rights, however, clearly shows no evidence for the
emergence of a right of temporary refuge for aliens fleeing civil war or severe
internal upheaval. 193 The Commission has very carefully examined whether
there were in fact substantial grounds to believe that the alien would be faced
with torture or inhuman treatment. 194 It is not clear whether article 3 of the
European Convention on Human Rights may embrace a right of temporary
refuge when rejection at the frontier would amount to inhuman treatment.
Since the arguments applicable in cases of deportation or extradition apply
equally to non-rejection at the frontier, however, it is safe to assume that the
European Commission of Human Rights will interpret article 3 as giving a
right of entry or residence when there is no other protection available. 195
It is worth recalling that the implications of article 3 of the European
Convention on Human Rights to questions of immigration have not yet been
fully explored. The European Commission of Human Rights, in a case
involving a South Mrican national, has admitted a complaint directed
 143

against the refusal of Belgian authorities to issue the applicant a document

of identification which made it impossible for him to get permission to enter
any other country. 196 The applicant therefore was faced with a situation of
illegality since he was arrested and expelled whenever he entered Belgian
territory. 197 This case indicates an effort to tackle the problem of "refugees
in orbit" 198 under article 3 of the European Convention on Human Rights.
It remains to be seen whether the interpretation of article 3 of the
European Convention on Human Rights can be considered as evidence of
a universally applicable rule of customary international law. A wide accep-
tance of article 3 of the United Nations Convention Against Torture may
confirm the view that the threat of torture already limits the right of states
to expel or extradite aliens. 199 It should be kept in mind, however, that article
3 of the United Nations Convention Against Torture to some extent differs
from article 3 of the European Convention on Human Rights.Z00 The non-
refoulement provision of the United Nations Convention is only applicable
in cases of torture, which is defined by article 1 as

any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for
an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.Z01

Article 3 of the United Nations Convention Against Torture can be

considered as an important step in the development of human rights of
refugees. The prohibition to refou/e or extradite is not fully applicable,
however, in cases of inhuman or degrading treatment.Z02 Article 16 of the
United Nations Convention Against Torture rules out any reference to
nonrefoulement in the case of other forms of cruel, inhuman, or degrading
treatment or punishment. 203 Moreover, the definition of torture in article 1
excludes "pain or suffering arising only from, inherent in or incidental to
lawful sanctions." 204
144

V. CONCLUSION

Codified refugee law is plainly inapplicable to persons fleeing from gener-

alized violence in their home countries. A customary norm of nonrefou/ement
for humanitarian refugees, however merited on humanitarian grounds, is not
now supported by the requirements of broad and consistent state practice
and opinio juris. Non-refoulement may, however, protect a limited class of
refugees who would be subject to torture upon return to their home countries.
Despite the efforts of some observers, international law should not be viewed
as demanding an obligation of states to adhere to non-refoulement or provide
temporary refuge for all humanitarian refugees.

NOTES

* This paper first appeared, in slightly modified form, in the Virginia Journal oflnternational
Law, 26 Va. J. Int'l L. 858 (1986), and is reprinted with permission.
1. Refugees, Mar. 1986, at 13 (Refugees magazine is published monthly by the Office of
the United Nations High Commissioner for Refugees).
2. A well-founded fear of persecution on account of a person's race, religion, nationality,
membership of a particular social group, or political opinion is the requirement for
recognition as a "refugee" under the United Nations Convention Relating to the Status
of Refugees, opened for signature July 28, 1951, art. 1, para. A(2), 189 U.N.T.S. 137
[hereinafter 1951 Refugee Convention], reprinted in 19 U.S.T. 6259, T.I.A.S. No. 6577,
amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. 1, 19 U.S.T.
6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267 [hereinafter 1967 Refugee Protocol].
The number of civilians fleeing their countries of origin because of internal armed conflict
now exceeds the number of refugees as defined by the 1951 Refugee Convention. Perluss
& Hartman, Temporary Refuge: Emergence of a Customary Norm, 26 Va. J. Int'l L. 551,
558 & n.28 ( 1986)(citing Report of the United Nations High Commissioner for Refugees,
40 U.N. GAOR Supp. (No. 12) at 3, U.N. Doc. A/40/12 (1985)).
3. See supra note 2.
4. Id.
5. See Perluss & Hartman, supra note 2, at 559-71 (documenting numerous examples of
recent mass movements of persons fleeing internal armed conflict).
6. 1951 Refugee Convention, supra note 2, art. 1, para. A(2). A portion of the definition
was modified by the 1967 Refugee Protocol, supra note 2, art. 1. The modification,
however, is not pertinent to this discussion. ·
7. Martin, Large-Scale Migrations of Asylum Seekers, 76 Am. J. Int'l L. 598, 608 (1982).
8. ld.
9. Perluss & Hartman, supra note 2, at 559.
10. I d. at 560-71.
11. ld.
12. Statute of the Office ofthe United Nations High Commissioner for Refugees, G.A. Res.
428 Annex, para. 6(A)(ii), 5 U.N. GAOR Supp. (No. 20)at46, U.N. Doc. A/1775 (1950).
The UNHCR describes its two main functions as:
 145

International Protection-to promote and safeguard the rights of refugees in such vital
fields as employment, education, residence, freedom of movement and security against
being returned to a country where they may be in danger of persecution.
Material Assistance-to assist governments of countries of asylum in the task of
making refugees self supporting as rapidly as possible.
Refugees, Oct. 1986, at 4 (this description appears in the masthead of every issue).
13. Persons who satisfy the definition of "refugee" in the 1951 Refugee Convention are
commonly referred to as "Convention refugees" or "statutory refugees." 1 A. Grahl-Mad-
sen, The Status of Refugees in International Law 108 (1966).
14. See Perluss & Hartman, supra note 2, at 584 n.l53 (citing G.A. Res. 1388, 14 U.N.
GAOR Supp. (No. 16) at 20, U.N. Doc. A/4354 (1959); G.A. Res. 1673, 16 U.N. GAOR
Supp. (No. 17) at 28, U.N. Doc. A/5100 (1961); G.A. Res. 2039,20 U.N. GAOR Supp.
(No. 14) at 41, U.N. Doc. A/6014 (1965); G.A. Res. 3454, 30 U.N. GAOR Supp. (No.
34) at 92, U.N. Doc. A/10034 (1975)).
15. Note on International Protection, Thirty-Sixth Session of the Executive Committee of
the High Commissioner's Programme, para. 6, U.N. Doc. A/AC.96/660 (1985) [hereinaf-
ter 1985 Note on International Protection].
16. Note, Displaced Persons: ''The New Refugees," 13 Ga. J. Int'l & Comp. L. 755, 787
(1983).
17. 1951 Refugee Convention, supra note 2, art. 33.
18. Under article 31 of the Vienna Convention on the Law ofTreaties, May 23;1969, U.N.
Doc. A/CONF.39f27 (1969}, 1980 Gr. Brit. T.S. No. 58 (Cmd. 7964}, reprinted in 8
I.L.M. 679,691-92 (1969), a treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given the terms of the treaty in their context and in the light
of its object and purpose.
19. G. Goodwin-Gill, The Refugee in International Law 74 (1983). But see Weis, Territorial
Asylum, 6 Indian J. Int'l L. 173, 183 (1966) ("The travaux preparatoires give no conclu-
sive answer as to the question whether the prohibition of return in Article 33 is limited
to refugees in the territory of a Contracting State or extends also to refugees who present
themselves at the frontier.").
20. See Summary Record of the 16th Meeting, Conference ofPlenipotentiaries on the Status
ofRefugees and Stateless Persons, U.N. Doc. A/CONF.2/SR.l6, at 6 (1951) (the Swiss
interpretation); Weis, Legal Aspects ofthe Convention of28 July 1951 Relating to the
Status of Refugees, 30 Brit. Y.B. Int'l L. 478, 482 (1953).
21. A Grahl-Madsen, Territorial Asylum 40 (1980); Feliciano, The Principle of Non-
Refoulement: A Note on International Legal Protection of Refugees and Displaced
Persons, 57 Phil. L.J. 598, 599 (1982).
22. Weis states that if the principle ofnonrefoulement were interpreted so as to allow the
return of those refugees who present themselves at the border, then "the extent to which
a refugee is protected... against return to a country in which he fears persecution would
depend upon the fortuitous circumstance whether he has succeeded in penetrating the
territory of a Contracting State." Weis, supra note 19, at 183-84. As support for this
conclusion, Weis cites the Report on the granting of the right of asylum to European
refugees, Explanatory Memorandum, para. 17, Eur. Consult. Ass., 17th sess., Doc. No.
1986 (1965}, which states: "It seems illogical, a priori, that a person who has succeeded
in crossing the frontier illegally should enjoy greater protection than someone who
presents himself legally."
23. See Leng May Ma v. Barber, 357 U.S. 185 (1985). The Supreme Court decided that an
alien's physical presence in the United States does not necessarily constitute legal
146

presence in the country. The temporary parole of an alien seeking admission to the
United States thus did not entitle him to the benefit of a statute giving the Attorney
General authority to withhold deportation of any alien "within the United States" if the
alien would suffer physical persecution. Id. at 187-90. The statute was later amended,
however, so that protection now extends to paroled aliens as well. 8 U.S.C. § 1253(h)
(1982).
24. Hofmann, Asylum and Refugee Law, in The Legal Position of Aliens in National and
International Law 2045, 2056 (J. Frowein & T. Stein eds. 1987) (extensive country
reports and comparative summaries prepared for a colloquium at the Max Planck
Institute for Comparative Public Law and International Law, Heidelberg, Sept. 11-13,
1985) [hereinafter Heidelberg Colloquium].
25. See National Reports, Heidelberg Colloquium, supra note 24 (reports on Argentina,
Australia, Belgium, Denmark, France, the Netherlands, Nigeria, Norway, Poland, Por-
tugal, United Kingdom, Federal Republic of Germany, Sweden, and Switzerland).
In its definition of"refugee," United States law includes aliens applying for admission
at a land border or a port entry. Refugee Act of 1980, § 201, 8 U.S.C. § ll01(a)(42)(A)
(1982). Under 8 U.S.C. § 1158(a) (1982), the Attorney General has discretion to grant
asylum to an alien physically present in the United States or at such land border or port
of entry.
26. Resolution (67)14 on asylum to persons in danger of persecution, Council ofEur. Comm.
of Ministers (1967), reprinted in 1967 Eur. Y.B. 349,351.
27. Declaration on Territorial Asylum, G.A. Res. 2312,22 U.N. GAOR Supp. (No. 16) at
81, U.N. Doc. A/6716 (1967).
28. Id. art. 3, para. l.
29. Aga Khan, Legal Problems Relating to Refugees and Displaced Persons, [1976] I
Recueil des Cours 287.
30. Id. at 318.
31. Report of the United Nations Conference on Territorial Asylum, U.N. Doc.
A/CONF.78/12 (1977).
32. A proposal by the Federal Republic of Germany to provide for an individual right of
asylum was supported only by the Holy See, Norway, and Sweden. Id.
The 1977 Conference on Territorial Asylum did not lend support to the broad
interpretation of the nonrefoulement principle. The Conference addressed the proposal
of a group of United Nations experts who sought to limit the scope of the nonrefou/ement
rule by providing that "a Contracting State shall use its best endeavours to ensure that
no person is rejected at its frontiers if rejection would subject him to persecution,
prosecution or punishment for any ofthe reasons stated in Article 2." No final provision
was adopted.
The article on nonrefoulement adopted by the Committee of the Whole did encounter
substantial objections insofar as the Draft Convention explicitly prohibited rejection at
the frontier of a person seeking asylum. The article was adopted by 45 votes for, 23
against, and 18 abstentions. A Grahl-Madsen, supra note 21, at 61.
33. Aga Khan, supra note 29, at 319.
34. G. Goodwin-Gill, supra note 19, at 76.
35. For a discussion by Goodwin-Gill, see Goodwin-Gill, Nonrefoulement and the New
Asylum Seekers, this volume.
36. G. Goodwin-Gill, supra note 19, at 82.
37. Goodwin-Gill, Entry and Exclusion of Refugees: The Obligations of States and the
Protection Function of the Office of the United Nations High Commissioner for Re-
fugees, 1982 Mich. Y.B. Int'l Legal Stud. 291, 306.
 147

38. G. Goodwin-Gill, supra note 19, at 101-03.

39. The Refugee Act of 1980, § 208, 8 U.S.C. § 1158(b) (19S2), provides that asylum may
be terminated if it is determined that the "alien is no longer a refugee within the meaning
of section 101(a)(42XA) owing to a change in circumstances in the alien's country of
nationality or, in the case of an alien having no nationality, in the country in which the
alien last habitually resided."
40. Although the opportunity for resettlement in a third country exists, this answer often
never materializes. The asylum seeker will either be granted an indefinite stay in the
receiving country or he will be returned home. Martin, Human Rights and the Movement
of Persons, 78 Am. Soc'y Int'l L. Proc. 346, 349 (1984).
41. Declaration on Territorial Asylum, supra note 27, art. 3, para. 2.
42. Report of the United Nations Conference on Territorial Asylum, supra note 31. Article
3 provides that the benefit of asylum "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 by
a great number of persons whose massive influx may constitute a serious problem to the
security of a Contracting State."
43. G. Goodwin-Gill, supra note 19, at 95.
44. The 1951 Refugee Convention, supra note 2, art. 33, para. 2 states:
The benefit of the present provision [on nonrefoulement] may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding as a danger to the security
of the country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country.
45. See Perluss & Hartman, supra note 2, at 570-71 (actions by Malaysia).
46. See Hofmann, supra note 24, at 2056.
47. See G. Goodwin-Gill, supra note 19, at 97-98.
48. In the North Sea Continental Shelf Cases (W. Ger. v. Den.; W. Ger. v. Neth.), 1969I.C.J.
3, 43, the International Court of Justice stated that
an indispensible requirement [for determining customary international law] would be
that within the period in question, short though it might be, State practice, including
that of States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked;-and should moreover have
occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved.
See also Bernhardt, Customary International Law, in 7 Encyclopedia of Public Inter-
national Law 61, 64 (R. Bernhardt ed. 1984) (asserting that the Court's view is "now
widely accepted").
49. See supra note 27.
50. See supra note 31.
51. W. Kalin, Das Prinzip des Non-Refoulement 80 n.352 (1982).
52. Id. at 72, 83; see generally Asylum Case (Colom. v. Peru), 1950 I.C.J. 266, 276 (the
development of regional customary law).
53. See 1985 Note on International Protection, supra note 15, para. 17 ("The fundamental
principle of non-refoulement. .. is an overriding legal principle having a normative charac-
ter independent of international instruments."); Note on International Protection, Thir-
ty-fifth Session of the Executive Committee of the High Commissioner's Programme,
para. 15, U.N. Doc. A/AC.96/643 (1984) [hereinafter 1984 Note on International Pro-
tection] (nonrefoulement "is progressively acquiring the character of a peremptory norm
of international law").
148

54. 1985 Note on International Protection, supra note 15, para. 19.
55. ld. para. 37.
56. ld.
57. Goodwin-Gill, supra note 35.
58. Id.
59. See supra note 48.
60. See supra notes 12-14 and accompanying text.
61. 1985 Note on International Protection, supra note 15, para. 37.
62. Statute of the UNHCR, supra note 12, para. 8(a).
63. See Report on the Twenty-eighth Session of the Executive Committee of the High
Commissioner's Programme, para. 53(4), U.N. Doc. A/AC.96/549 (1977) (calling for
recognition of nonrefou/ement regardless of whether the person is a Convention refugee).
64. See Report of the Thirty-fifth Session of the Executive Committee of the High Com-
missioner's Programme, para. 122(BXf), U.N. Doc. A/AC.96/651 (1984) (calling on
states to facilitate the admission of refugees).
65. Recommendations of international bodies may provide important supplementary means
of determining whether a purported rule has in fact been generally accepted by the
community of states. I. Brownlie, Principles of Public International Law 675 (2d ed.
1973). Brownlie cautions, however, that the weight accorded such recommendations
depends on the "nature of the particular decision and the extent to which legal matters
were involved." Id.
66. 1985 Note on International Protection, supra note 15; 1984 Note on International
Protection, supra note 53.
67. 1985 Note on International Protection, supra note 15, paras. 6, 37; 1984 Note on
International Protection, supra note 53, para. 31.
68. 1985 Note on International Protection, supra note 15, paras. 19, 57.
69. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, Europ. T.S. No.5, 213 U.N.T.S. 222 [hereinafter European Convention on Human
Rights].
70. Recommendation 293 on the right of asylum, Eur. Consult. Ass., 13th Sess. (1961); see
also Report on the right of asylum, Eur. Consult. Ass., 13th Sess. (1961); see also Report
on the right of asylum, Eur. Consult. Ass., 13th Sess., Doc. No. 1329 (1961) (citing
Recommendation 293 ).
71. See Report on the granting of the right of asylum to European refugees, Explanatory
Memorandum, para. 25, Eur. Consult. Ass., 17th Sess., Doc. No. 1986 (1965). Backing
away from its earlier recommendation to include the draft article in a protocol to the
Convention, the Consultative Assembly instead recommended that the Committee of
Experts on Human Rights accelerate its efforts toward an agreement on asylum and that
member states extend voluntarily the rights provided for in the article. Report on the
granting of the right of asylum to European refugees, Draft Recommendation, para. II,
Eur. Consult. Ass. 17th Sess. Doc. No. 1986 (1965).
72. Recommendation 773 on the situation of de facto refugees, Eur. Pari. Ass., 27th Sess.
(1976).
73. See Recommendation 773 on the situation of de facto refugees; Explanatory Memoran-
dum, para. 6, Eur. Pari. Ass., 27th Sess., Doc. No. 3642 (1975) (de facto refugees include
those who are not recognized as refugees as defined in the 1951 Refugee Convention
because, inter alia, "they are not familiar with the procedures existing for the recognition
of refugees ....").
74. See id. para. 6, 32 (regarding the situation of de facto refugees).
 149

75. Recommendation No. R(84)l on the protection of persons satisfying the criteria in the
Geneva Convention who are not formally recognised as refugees, Explanatory Memo-
randum, para. 14, Council of Eur. Comm. of Ministers (1984) [hereinafter R(84)1
Explanatory Memorandum].
76. Statute of the Council of Europe, May 5, 1949, arts. 13, 15, 87 U.N.T.S. 103.
77. Recommendation No. R(84)1 on the protection of persons satisfying the criteria in the
Geneva Convention who are not formally recognised as refugees, Council ofEur. Comm.
of Ministers (1984).
78. R(84)1 Explanatory Memorandum, supra note 75, para. 16.
79. Id. para. 18.
80. European Convention on Human Rights, supra note 69, art. 3.
81. Becker v. Denmark, 4 Eur. Comm'n H.R. Dec. & Rep. 215,233 (1975), 1976 Y.B. Eur.
Conv. on Hum. Rts. 416, 450-51; see infra notes 168-204 and accompanying text.
82. Perluss & Hartman, supra note 2. See also Hartman, The Principle and Practice of
Temporary Refuge: A Customary Norm Protecting Civilians Fleeing Internal Armed
Conflict, this volume.
83. Perluss and Hartman define "temporary refuge" as a customary norm which "prohibits
a state from forcibly repatriating foreign nationals who find themselves in its territory
after having fled generalized violence and other threats to their lives and security caused
by internal armed conflict within their own state." Perluss & Hartman, supra note 2, at
554.
84. Id. at 602.
85. Id. at 616.
86. Id. at 618.
87. ld.
88. Id.
89. ld. at 558-75.
90. See, e.g., Act of Sept. 2, 1958, Pub. L. No. 85-892,72 Stat. 1712 (authorizing the issuance
of 1,500 immigration visas to victims of the earthquake and volcanic eruptions in the
Azores); Refugees, Apr. 1986, at 29 (donation of food by the United States and the
European Community intended, in part, for refugees fleeing from neighboring countries
into the Sudan).
91. See, e.g., Refugees, Nov. 1985, at 19 (Iran admitted all Afghans who requested asylum).
92. See, e.g., 8 U.S.C. § ll82(d)(5)(A) (1982) (excerpted infra note 140); Melander, National
Report on Sweden, Heidelberg Colloquium, supra note 24, at 1334, 1339 (Convention
refugees are generally granted permanent residence while humanitarian refugees may be
tolerated on a temporary basis); Shearer, National Report on Australia, id. at 71
(permanent residence permits granted except where the refugee fails to meet the criteria
for permanent residence as stated in the Migration Amendment Act, No.2,§ 6A, 1980
Austl. Acts 1805).
93. See, e.g., Refugees, May 1986, at 16-17 (Laotians in Thai border camps); Refugees, Mar.
1986, at 19-28 (Ethiopians in Sudanese border camps).
94. See supra note 9 and accompanying text.
95. See supra note 39.
96. Martin, supra note 40, at 349.
97. For a discussion of the practice of South Pacific states regarding Vietnamese and
Cambodian boat people, see Chooi Fong, Some Legal Aspects of the Search for
Admission into Other States of Persons Leaving the Indo-Chinese Peninsula in Small
Boats, 52 Brit. Y.B. Int'l L. 53 (1981).
150

98. United States as a Country of Mass First Asylum: Hearings on Oversight on the Legal
Status of the Cubans and Haitians who Have Entered the United States and the Policies
and Procedures which Should be Adopted in Order to Handle Future Asylum Cases and
Crimes Before the Subcomm. on Immigration and Refugee Policy of the Senate Comm.
on the Judiciary, 97th Cong., 1st Sess. 28-29 (statement of David Hiller, Special Assis-
tant to the Attorney General); see also Office of the U.N. High Comm'r for Refugees,
Report by Mission to Monitor INS Asylum Processing of Salvador Illegal Entrants,
reprinted in 128 Cong. Rec. 1698 (1982) (INS processing of Salavadoran illegal aliens);
see generally Hanson, Behind the Paper Curtain: Asylum Policy Versus Asylum Prac-
tice, 7 N.Y.U. Rev. L. & Soc. Change 107 (1978). It is not correct to quote the UNHCR's
observation as a "protest" against the United States' failure to abide by an alleged new
norm oftemporary refuge. UNH CR "observations" were concerned with the application
of the 1967 Refugee Protocol, which did not permit, in the UNHCR's view, an unquali-
fied refusal to grant asylum. In addition, the UNHCR's reaction cannot be equated to
formal protests raised by states.
99. 1985 Note on International Protection, supra note 15, para. 2.
100. Id. paras. 2-3; 1984 Note on International Protection, supra note 53, para. 18.
101. States of first refuge like Thailand have repeatedly taken this view. See Addendum to
the Report of the United Nations High Commissioner for Refugees, 34 U.N. GAOR
Supp. (No. 12A), para. 30, U.N. Doc. A/34/12/Add.l (1979) [hereinafter 1979 UNHCR
Addendum]; see also Report on the Meeting of the Expert Group on Temporary Refuge
in Situations of Large Scale Influx, U.N. Doc. EC/SCP/16/Add.l, at 7-10 (1981) (con-
troversial discussion on international solidarity and burden-sharing in relation to tempo-
rary refuge). However, this discussion does not conflict with the statement contained
in the 1979 High Commissioner's report that "burden-sharing arrangements were not
a precondition for the observance of established international principles for the pro-
tection of refugees and asylum seekers." 1979 UNHCR Addendum, supra, para. SO.
102. G. Goodwin-Gill, supra note 19, at 114 n.69; see also Greig, The Protection of Refugees
and Customary International Law, 8 Austl. Y.B. lnt'l L. 108, 127 (1983) (Thai govern-
ment statement that it will continue to alleviate the plight of Indochinese displaced
persons "as long as other countries continue to honor their commitments and fully share
the burdens").
103. Coles, Temporary Refuge and the Large-scale Influx of Refugees, 8 Austl. Y.B. Int'l L.
189 (1983); Hofmann, Refugee-Generating Policies and the Law of State Responsibility,
45 Zeitschrift filr ausllindisches Offentliches Recht und V<>lkerrecht [Za<>RV] 694, 703
(1985).
104. See infra note 132 and accompanying text.
105. See infra note 153 and accompanying text.
106. See infra notes 158-61 and accompanying text.
107. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept.
10, 1969, 1001 U.N.T.S. 45 [hereinafter OAU Convention]. For a discussion of the
importance of national legislation in fulfilling the obligations assumed by member states
under the OAU Convention, see Nobel, National Law and Model Legislation on the
Rights and Protection of Refugees in Africa, in African Refugees and the Law 58 (G.
Melander & P. Nobel eds. 1978).
108. OAU Convention, supra note 107, art. I, para. 2. The OAU Convention also incorpo-
rates the 1951 Refugee Convention definition of"refugee." Id. art. I, para. 1.
109. Iluyomade, National Report on Nigeria, Heidelberg Colloquium, supra note 24, at
967-69; Ofosa-Amaah, National Report on Ghana, id. at 523-24. Nigerian administra-
tive regulations based in large part on the recommendations of the Executive Committee
 151

of the High Commissioner's Programme are in place to implement its international

obligations under the OAU Convention. Iluyomade, supra, at 977-78. As of September
1985, however, the commentator was aware of no Nigerian cases in which either the
applicant invoked or the court applied provisions of the OAU Convention. Id. at 969.
In Ghana, the Minister of Internal Affairs applies the definition of "refugee" contained
in the OAU Convention to determine who is entitled to refugee status. Ofosa-Amaah,
supra, at 523-24.
110. Iluyomade, supra note 109, at 978; Ofosa-Amaah, supra note 109, at 523.
111. OAU Convention, supra note 107, art. I, para. 4.
112. Id. art. I, para. 5.
113. Id. art. I, para. 6.
114. The Banjul Charter on Human and Peoples' Rights, June 27, 1981, reprinted in 21 I.L.M.
59 (1982), prohibits mass expulsion of aliens directed against national, ethnic, racial, or
religious groups. This provision, as well as the OAU Convention, has not prevented the
expulsion of Nigerians from Cameroon and of Ghanaians from the Ivory Coast. See
Doehring, Die Rechtsnatur der Massenausweisung unter besonderer Berucksichtigung
der indirekten Ausweisung, 45 ZaoRV 372, 375 & n.l2 (1985); Obinna-Okere, The
Protection of Human Rights in Africa and the African Charter on Human and Peoples'
Rights: A Comparative Analysis with the European and American Systems, 6 Hum. Rts.
Q. 141, 147 (1984). Collective expulsion of aliens is also prohibited by article 4 of
Protocol No. 4 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Sept. 16, 1963, Europ. T.S. No. 46. For history and meaning
of this provision, see Drzemczewski, Aliens and the European Human Rights Con-
vention: A General Survey, 2 Notre Dame Int'l & Comp. L.J. 99, 108 (1984).
115. Addendum to the Report of the United Nations High Commissioner for Refugees, 40
U.N. GAOR Supp. (No. 12A), U.N. Doc. A/40/12/Add.l (1985) [hereinafter 1985
UNHCR Addendum]; Addendum to the Report of the United Nations High Com-
missioner for Refugees, 39 U.N. GAOR Supp. (No. 12A), U.N. Doc. A/39/12/Add.l
(1984) [hereinafter 1984 UNHCR Addendum.]
116. At the Thirty-sixth Session of the Executive Committee of the High Commissioner's
Programme, Mr. Moussalli, the Director oflnternational Protection, outlined the recent
severe restrictive responses that states took with regard to mass influxes of refugees,
such as border closings and denials of requests for temporary asylum. 1985 UNHCR
Addendum, supra note 115, paras. 59-63. In focusing on the growing problem of refugees
who have fled their native country "due to serious upheavals or armed conflict," several
speakers expressed the view that these persons "could be granted humanitarian treat-
ment on the basis of national legislation and that it was, therefore, not necessary to
broaden the refugee definition in order to take account of their needs." Id. para. 75. Other
delegations pointed to the difficulties arising out of large-scale arrival of persons "who
were clearly not refugees." I d. para. 76. Repeatedly, the importance of solutions "based
on principles of international solidarity and burden-sharing" was stressed. Id. para. 79.
117. Id. para. 112.
118. Id. para. 115( I)( a)-( e).
119. Id. para. 115(l)(t).
120. 1984 UNHCR Addendum, supra note 115.
121. Id. para. 61.
122. Id. para. 81.
123. Id. para. 87( 1)(b).
152

124. Note on the Consultations on the Arrivals of Asylum-Seekers and Refugees in Europe,
U.N. Doc. A/AC.96/INF.l74 (1985). The Note submitted by the High Commissioner
summarizes the discussion as follows:

There was general agreement that persons ...who leave their countries in order to escape
from severe internal upheavals or armed conflicts... should be treated humanely and,
in particular should not be returned to areas where they may be exposed to danger. Such
humane treatment could be provided within the framework of existing legal structures.
These were considered adequate and there did not appear to be any need to revise the
international refugee instruments.

ld. annex V at 1-2.

125. "From the standpoint of International Law... , municipal laws are merely facts which
express the will and constitute the activities of States, in the same manner as do legal
decisions or administrative measures." Certain German Interests in Polish Upper Silesia
(Ger. v. Pol.), 1926 P.C.I.J. (Ser. A), No.7, at 19 (May 25). In Filartiga v. Pefta-Irala,
630 F.2d 876, 884 (2d Cir. 1980), the court referred to a consensus of municipal laws
prohibiting torture as further evidence of customary international law.
126. Act 38/80of Aug. 1,1980, art. 5, para. 2, amended by Act 415/83 ofNov. 24, 1983 (Port.).
127. ld.
128. Silveira, National Report on Portugal, Heidelberg Colloquium, supra note 24, at 1293.
129. Swart, National Report on the Netherlands, Heidelberg Colloquium, supra note 24, at
905.
130. ld. at 905, 907.
131. ld.
132. Melander, supra note 92, at 1334. Section 6 of the Alien's Act of 1975 provides that aliens
who are not recognized as Convention refugees but who do not wish to return to their
country of origin because of the political situation should be granted residence permits.
Three categories of these so-called de facto refugees have emerged in practice: those who
qualifY as Convention refugees but fear recognition as such for personal reasons; those
whom Sweden does not wish to recognize as Convention refugees in view of the potential
effect on foreign relations; and those who, although professing a well-founded fear of
persecution, fail to qualifY as Convention refugees for lack of proof. Id. at 1333, 1334.
133. ld. at 1334.
134. See Deutscher Bundestag, 10 Wahlperiode, Drucksache 10/3346 (1985) (W. Ger.). In
1984 and 1985, more than sixty percent of asylum seekers in the Federal Republic of
Germany came from countries to which they will not be deported regardless of the
outcome of the asylum procedure. ld.; see Hailbronner, National Report on the Federal
Republic of Germany, Heidelberg Colloquium, supra note 24, at 410.
135. ld. An exception to this general rule is provided by Ausllindergesetz, art. 22, 1965
Bundesgesetzblatt, Tell I [BGBl.I] 353 (W. Ger.), which permits the Minister of the
Interior to admit aliens if political, humanitarian, or international legal considerations
so require. This article does not create a legal entitlement to admission. B. Huber,
Auslander und Asylrecht 152 (1983).
136. K. Hailbronner, Ausliinderrecht paras. 978-980 ( 1984). This prohibition originated from
the Ausliindergesetz, art. 14, para. 1, 1965 BGBl.I 353 (W. Ger.), which proscribes the
expulsion of an alien to any country where his life or freedom is threatened because of
his race, religion, nationality, membership of a particular social group, or political beliefs.
137. See Grundgesetz art. 25 (W. Ger.) (providing that international law has the force oflaw
in the Federal Republic of Germany). The Bundestag in 1978 proposed a resolution to
grant temporary refuge to refugees who do not meet the requirements under the terms
 153

of the 1951 Refugee Convention "as far as the possibilities of the Federal Republic of
Germany permit such assistance." This clearly indicates that no binding legal obligation
was intended. See Deutscher Bundestag, 8 W ahlperiode, Drucksache 8/1945 ( 1978) (W.
Ger.).
138. Vincent, National Report on France, Heidelberg Colloquium, supra note 24, at 490.
139. Plender, National Report on the United Kingdom, Heidelberg Colloquium, supra note
24, at 1715 (citing Rajamanie v. Secretary of State (Nov. 8, 1984) (immigration adjudi-
cation)).
140. 8 U.S.C. § 1182(d)(5XAX1982) provides that "the Attorney General may... in his
discretion parole into the United States temporarily under such conditions as he may
prescribe for emergent reasons or for reasons deemed strictly in the public interest any
alien applying for admission to the United States ...." For a complete enumeration of
all situations in which the parole power had previously been exercised, see S. Rep. No.
256, 96th Cong., 1st Sess. (1979). For a discussion of the parole of Cubans and Indochi-
nese into the United States in the 1970's, see Schmidt, Development of United States
Refugee Policy, 28 Imm. & Naturalization Serv. Rep. 1, 1-2 (1979). In theory, a parolee
may remain in the United States only as long as the conditions giving rise to parole still
exist. INS v. Stanisic, 395 U.S. 62, 71 (1969).
141. U.S. Imm. & Naturalization Serv., Operations Instructions para. 242.l0e(3)(1979),
reprinted in 4 C. Gordon & H. Rosenfield, Immigration Law and Procedure 23-488.5
(1981); see also Aleinikoff, National Report on the United States, Heidelberg Collo-
quium, supra note 24, at 1604 (discussion of extended voluntary departure). Extended
voluntary departure (EVD) is "an extra-statutory form of discretionary relief from the
deportation provisions of the Immigration and Nationality Act of 1952, as amended."
Hotel & Restaurant Employees Union v. Smith, 594 F. Supp. 502, 505 (D.D.C. 1984),
appeal pending, 808 F.2d 847 (D.C. Cir. 1987). It appears that the use of EVD is not
open-ended. In 1979, for example, after realizing that many groups of aliens qualified
for EVD treatment, the State Department began to resist the addition of new groups
for fear that the list would never stop growing. Martin, Mass Migration of Refugees-Law
and Policy, 76 Am. Soc'y Int'l L. Proc. 13, 17-18 (1982).
142. Aleinikoff, supra note 141, at 1645.
143. Cf. Act of Oct. 28, 1977, Pub. L. No. 95-145,91 Stat. 1223 (granting permanent residence
to Indochinese who had been present in the United States for two years); Act of Nov.
2, 1966, Pub. L. No. 89-732, 80 Stat. ll61 (same for Cubans).
144. See Hotel & Restaurant Employees Union v. Smith, 594 F. Supp. 502,508 (D.D.C. 1984)
(Attorney General explicitly based his decision not to grant extended voluntary depar-
ture to Salvadorans in part on considerations offoreign policy), appeal pending, 808 F.2d
847 (D.C.Cir. 1987).
145. See Martin, supra note 141, at 17 (extended voluntary departure granted to Ethiopians
and Nicaraguans); Temporary Suspension of Deportation of Certain Aliens: Hearings
on H.R. 4447 Before the Subcomm. on Immigration, Refugees, and International Law
of the House Comm. on the Judiciary, 98th Cong., 2d Sess. 17 (1984) [hereinafter
Hearings on Temporary Suspension of Deportation] (statement of Rep. Joe Moakley)
(stating that the INS had granted extended voluntary departure status to Poles and
Afghans).
146. Hearings on Temporary Suspension of Deportation, supra note 145, at 72-73 (statement
of Elliot Abrams, Assistant Secretary of State for Human Rights and Humanitarian
Affairs).
154

147. Hotel & Restaurant Employees Union v. Smith, 594 F. Supp. 502 (D.D.C. 1984) (finding
that the desire to discourage illegal immigration partly justified the Attorney General's
denial of extended voluntary departure).
148. See Caribbean Migration: Oversight Hearings Before the Subcomm. on Immigration,
Refugees, and International Law ofthe House Comm. on the Judiciary, 96th Cong., 2d
Sess. 207-11 (1980) (statement of Stephen E. Palmer, Jr., Deputy Assistant Secretary
for Human Rights and Humanitarian Affairs).
149. See, e.g., Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir. 1984); Chavez v. INS, 723
F.2d 1431 (9th Cir. 1984); see Aleinikoff, supra note 141, at 1640.
150. Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir. 1982).
151. Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1982).
152. ld. at 1284.
153. Thiirer, National Report on Switzerland, Heidelberg Colloquium, supra note 24, at 1420
(citing Asylum Law of Oct. 5, 1979, art. 3, Systematische Sammlung des Bundesrechts
[SR] 142.31, Recueil systematique du droit fl:deral [RS] 142.31, Raccolta sistematica
del diritto federale [RS] 142.31 (Switz.), which defines a refugee as an alien who, in
effect, satisfies the requirements for refugee status contained in the 1951 Refugee
Convention).
154. ld.
155. ld. (citing Lois fl:derales sur le sejour et l'etablissement d'l:trangers du Mar. 26, 1931,
art. 14, para. 2, SR 142.20, RS 142.20, RS 142.20 (Switz.); Ordonnance sur !'internment
d'etrangers du Aug. 14, 1968, art. 3, SR 142.281, RS 142.281, RS 142.281 (Switz.)).
156. See, e.g., Refugees, June 1985, at 18 (m~ntioning the arrival of between fifty and one
hundred Tamil refugees every month). More than 2,000 Tamil asylum-seekers from Sri
Lanka were permitted to remain in Switzerland following a decision at the end of 1984
that the political situation in Sri Lanka was not conducive to repatriation. Id.
157. Darwich v. Minister of Migration & Immigration, 1 F.C. 365 (Can. 1979).
158. Immigration Act, 1976, ch. 52,§ 6(2}, 1976-77 Can. Stat. 1193. Section 6(2) provides:
Any Convention refugee and any person who is a member of a class designated by the
Governor in Council as a class, the admission of members of which would be in
accordance with Canada's humanitarian traditions with respect to the displaced and
persecuted, may be granted admission subject to such regulations as may be established
with respect thereto and notwithstanding any other regulations made under this Act.
159. See Indochinese Designated Class Regulations, Self-Exiled Persons Oass Regulations,
Political Prisoners and Oppressed Persons Designated Oass Regulations, reprinted in
The Annotated Immigration Act of Canada 205-14 (F. Marrocco ed. 1984). The Indochi-
nese class regulations provided for admission of citizens of Kampuchea, Laos, and
Vietnam who must meet certain criteria, including the inability or unwillingness to return
to their country and the ability to successfully establish themselves in Canada. The
regulations relating to self-exiled persons applied to citizens of Eastern European
countries and Haiti who met the same criteria. The oppressed persons regulations
contained similar provisions in favor of citizens of Argentina, Chile, El Salvador, Poland,
and Uruguay, and who were detained or imprisoned for more than 72 hours as a result
of trade union activity or political dissent. All three sets of regulations were in effect until
December 31, 1985.
160. de Mestrael, National Report on Canada, Heidelberg Colloquium, supra note 24, at
827-29.
161. Shearer, supra note 92, at 68. The quotas for 1983-84 were approximately 10,000 for
Indochinese, 2,500 for Eastern Europeans, 2,500 for Latin Americans and East Timor-
 155
ese, and 1,000 for other special humanitarian cases. A contingency quota of 4,500
additional places was also established. Id.
162. Id. at 70-71. This absence of a distinction may be attributable to the fact that the term
"refugee" has not been defined in Australian law. Australia has not adopted by statute
the 1951 Refugee Convention or the 1967 Refugee Protocol. Id.
163. Migration Amendment Act, No.2,§ 6A, 1980 Austl. Acts 1805. The Act grants the
Minister of Immigration authority to issue in his discretion an entry permit for perma-
nent residence to a humanitarian refugee who holds a temporary entry permit and where
"strong compassionate and humanitarian grounds" argue for issuance. Shearer, supra
note 92, at 71.
164. Id. at 71 (citing Znaty v. Minister of Immigration, 126 C.L.R. 1 (Austl. 1972)).
165. Martin, supra note 7, at 609.
166. Perluss & Hartman, supra note 2, at 611.
167. Martin, supra note 7, at 609.
168. Frowein & Killmer, Drohende Folterung als Asylgrund und Grenze fi1r Auslieferung
und Ausweisung, 43 ZaORV 537,549 (1983); see also Haug, Internationale Konventio-
nen gegen die Folter, in Studies and Essays on International Humanitarian Law and Red
Cross Principles in Honour ofJ ean Pictet 713, 714-17 (C. Swinarski ed. 1984)(discussing
the use of a principle against torture in various national laws and multilateral con-
ventions); Trechsel, Probleme und aktueller Stand der Bemiihungen urn eine UN-Kon-
vention gegen die Folter, 33 Osterreichische Zeitschrift filr Offentliches Recht and
Volkerrecht 245, 24 7-56, 265-66 ( 1982) (arguing for a convention against torture because
torture contravenes elementary human rights). For a comprehensive discussion of the
various draft conventions, see Danelius, Entwurf der Schwedischen Regierung fi1r eine
internationle Konvention gegen die Folter, in Internationale Konventionen gegen die
Folter 35 (A. Riklin ed. 1979) [hereinafter Riklin ed.]; Thoolen, Entwurf der Internatio-
nalen Vereinigung filr eine internationale Konvention gegen die Folter, in Riklin ed.,
supra, at 41; Trechsel, Privater Schweizer Entwurf filr eine internationale Konvention
gegen die Folter, in Riklin ed., supra, at 45; Riklin, Vergleich der Entwiirfe flir eine
Internationale Konvention gegen die Folter, in Riklin ed., supra, at 55.
169. Frowein & Kiihner, supra note 168, at 549; see Bassiouni, An Appraisal of Torture in
International Law and Practice: The Need for an International Convention for the
Prevention and Suppression of Torture, Revue Internationale de Droit Penal, Nos. 3 &
4, at 17,74-78,213-43 (1977); Haug, Das Folterverbot im universellen FriedensvOlker-
recht, in Rik1in ed., supra note 168, at 63.
170. See, e.g., Filartiga v. Pei!.a-Irala, 630 F.2d 876, 882-85 (2d Cir. 1980); Judgment of Mar.
22, 1983, Bundesgericht, Switz., 109 Entscheidungen des Schweizerischen Bundesge-
richts, Amtliche Sammlung [BGE Ib]64, 72; Judgment of Feb. 23, 1983, Bundesverfas-
sungsgericht, W. Ger., 63 Entscheidungen des Bundesverfassungsgerichts [BVerfGE]
197,211.
171. See Garvey, Toward a Reformulation oflnternational Refugee Law, 26 Harv. Int'l L.J.
483, 487-88 (1985).
172. 1951 Refugee Convention, supra note 2, art. 33. For a discussion of article 33, see supra
notes 17-46 and accompanying text. Indeed, the question of the limits of the obligation
of states not to expel or deport aliens is central to this essay.
173. Judgment of Mar. 22, 1983, Bundesgericht, Switz., 109 BGE Ib 64, 71-73; Judgment of
May 17, 1983, Bundesverwaltungsgericht, W. Ger., 67 Entscheidungen des Bundesver-
waltungsgerichts 184, 195; Judgment of Mar. 9, 1983, Bundesverfassungsgericht, W.
Ger., 63 BVerfGE 332, 337. For the German practice, seeK. Hailbronner, supra note
136, paras. 614-620.
156

174. Judgment ofMar. 22, 1983, Bundesgericht, Switz., 109 BGE Ib 64, 72; Judgment of Mar.
9, 1983, Bundesverfassungsgericht, W. Ger. 63 BVerfGE 332, 337-38.
175. European Convention on Human Rights, supra note 69, art. 3. Article 3 provides: "No
one shall be subjected to torture or to inhuman or degrading treatment or punishment."
176. Xv. Federal Republic of Germany, 1 Eur. Comm'n H.R. Dec. & Rep. 73,75 (1974). 1974
Y.B. Eur. Conv. on Hum. Rts. 480, 488-90.
177. See 1 Strasbourg Case Law Relating to the European Convention on Human Rights
117-55 (1985) [hereinafter Strasbourg Digest] (survey of cases examining whether
extradition, expulsion, deportation, repatriation, or transfer to another country for trial
constitutes inhuman or degrading treatment); J. Frowein & W. Peukert, Menschenre-
chtskonvention 36 (1985); W. Kalin, supra note 51, at 158.
178. See Kalin, Drohende Menschenrechtsverletzungen im Heimatstaat als Schranke der
Riickschiebung gemap Art. 3 EMRK, 1986 Zeitschrift flir Auslanderrecht und Aus-
Hinderpolitik (ZAR) 172.
179. The Greek Case (Den. v. Greece; Nor. v. Greece; Swed. v. Greece; Neth. v. Greece),
1969 Y.B. Eur. Conv. on Hum. Rts. 186 (report to Council ofEur. Comm. of Ministers).
180. X v. Sweden, No. 9105/80 (Eur. Comm'n of Hum. Rts. July 6, 1986) (decision as to the
admissibility of application), reported in 1 Strasbourg Digest 154-55.
181. Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 66, 58 I.L.R. 188, 266 (1978).
182. See X v. Federal Republic of Germany, No. 3713/68 (Eur. Comm'n of Hum. Rts. Oct.
4, 1968)(decision as to the admissibility of application), reported in 1 Strasbourg Digest
124.
183. Drzemczewski, supra note 114, at 115.
184. See X v. United Kingdom, No. 8581/79 (Eur. Comm'n of Hum. Rts. Mar. 6, 1980)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 152; J.
Frowein & W. Peukert, supra note 177, at 38.
185. See X. v. Switzerland, 24 Eur. Comm'n H.R. Dec. & Rep. 205, 219 (1980), 1981 Y.B.
Eur. Conv. on Hum. Rts. 378, 390; X v. Sweden, No. 9105/80 (Eur. Comm'n of Hum.
Rts. July 6, 1981), reported in 1 Strasbourg Digest 154-55; X & Y v. United Kingdom,
No. 8704/79 (Eur. Comm'n of Hum. Rts. Mar. 20, 1981) (decision as to the admissibility
of application), reported in 1 Strasbourg Digest 154; X v. United Kingdom, No. 8008/77
(Eur. Comm'n of Hum. Rts. Mar. 17, 1981) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 153-54; X & Yv. United Kingdom, No. 8897/80
(Eur. Comm'n of Hum. Rts. Mar. 12, 1980) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 152-53; X v. Sweden, No. 8823/79 (Eur.
Comm'n of Hum. Rts. Mar. 12, 1980) (decision as to the admissibility of application),
reported in 1 Strasbourg Digest 142, 153; X v. United Kingdom, No. 8581/79 (Eur.
Comm'n of Hum. Rts. Mar. 6, 1980) (decision as to the admissibility of application),
reported in 1 Strasbourg Digest 152; X v. Federal Republic of Germany, No. 8647/79
(Eur. Comm'n of Hum. Rts. Oct. 12, 1979) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 151-52; X v. Federal Republic of Germany, No.
8495/79 (Eur. Comm'n of Hum. Rts. Mar. 2, 1979) (decision as to the admissibility of
application), reported in 1 Strasbourg Digest 142; Lynas v. Switzerland, 6 Eur. Comm'n
H.R. Dec. & Rep. 141, 165-66 (1976), 1977 Y.B. Eur. Conv. on Hum. Rts. 412, 436-38;
X & Y v. Switzerland, 9 Eur. Comm'n H.R. Dec. & Rep. 57, 71-74 (1977), 1977 Y.B.
Eur. Conv. on Hum. Rts. 372, 400-08; X v. Federal Republic of Germany, No. 8113/77
(Eur. Comm'n of Hum. Rts. Dec. 15, 1977) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 150; X v. Netherlands, No. 8088/77 (Eur.
Comm'n of Hum. Rts. Dec. 15, 1977) (decision as to the admissibility of application),
reported in 1 Strasbourg Digest 149-50; X v. Federal Republic of Germany, No. 8063/77
 157

(Eur. Comm'n of Hum. Rts. Dec. 15, 1977) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 150-51; X v. United Kingdom, No. 8801/77
(Eur. Comm'n of Hum. Rts. Dec. 12, 1977) (decision as to the admissibility of appli-
cation), reported in 1 Strasbourg Digest 148-49; X v. Federal Republic of Germany, No.
7704/76 (Eur. Comm'n of Hum. Rts. Mar. 11, 1977) (decision as to the admissibility of
application), reported in 1 Strasbourg Digest 147; X v. Federal Republic of Germany,
No. 7691/76 (Eur. Comm'n of Hum. Rts. Mar. 11, 1977) (decision as to the admissibility
of application), reported in 1 Strasbourg Digest 147; X v. Federal Republic of Germany,
No. 7638/76 (Eur. Comm'n of Hum. Rts. Mar. 10, 1977) (decision as to the admissibility
of application), reported in 1 Strasbourg Digest 146-47; X v. Federal Republic of
Germany, No. 7777/77 (Eur. Comm'n of Hum. Rts. Mar. 1, 1977) (decision as to the
admissibility of application), reported in 1 Strasbourg Digest 145-46; Agee v. United
Kingdom, 7 Eur. Comm'n H.R. Dec. & Rep. 164, 172-73 (1976); X v. Denmark, 7 Eur.
Comm'n H.R. Dec. & Rep. 153, 155 (1976); X v. Federal Republic of Germany, 5 Eur.
Comm'n H.R. Dec. & Rep. 154, 154-55 (1976); Beckerv. Denmark,4 Eur. Comm'n H.R.
Dec. & Rep. 215, 233-35 (1975), 1976 Y.B. Eur. Conv. on Hum. Rts. Oct. 8, 1976)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 144; X
v. Federal Republic of Germany, No. 7507/76 (Eur. Comm'n ofHum. Rts. Oct. 8, 1976)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 144; X
v. Federal Republic of Germany, No. 7621/76 (Eur. Comm'n of Hum. Rts. Oct. 7, 1976)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 143-44;
Xv. FederalRepublicofGermany,No. 7333/76(Eur. Comm'nofHum. Rts. Oct. 7, 1976)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 142-43;
X v. Federal Republic of Germany, No. 7495/76 (Eur. Comm'n of Hum. Rts. May 21,
1976) (decision as to the admissibility of application), reported in 1 Strasbourg Digest
140; X v. Federal Republic of Germany, No. 7332/76 (Eur. Comm'n of Hum. Rts. Mar.
9, 1976) (decision as to the admissibility of application), reported in 1 Strasbourg Digest
140; J. Frowein & W. Peukert, supra note 177, at 36.
186. X v. United Kingdom, No. 8581/79 (Eur. Comm'n of Hum. Rts. Mar. 6, 1980) (decision
as to the admissibility of application), reported in 1 Strasbourg Digest 152; X v. Federal
Republic of Germany, No. 8647/79 (Eur. Comm'n of Hum. Rts. Oct. 12, 1979) (decision
as to the admissibility of application), reported in 1 Strasbourg Digest 151-52.
187. X v. United Kingdom, No. 8081/77 (Eur. Comm'n of Hum. Rts. Dec. 12, 1977) (decision
as to the admissibility of application), reported in 1 Strasbourg Digest 148-49.
188. Becker v. Denmark, 4 Eur. Comm'n H.R. Dec. & Rep. 215, 233-35 (1975), 1976 Y.B.
Eur. Conv. on Hum. Rts. 416, 450-54.
189. X v. Federal Republic of Germany, No. 7333/76 (Eur. Comm'n of Hum. Rts. Oct. 7, 1976)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 142-43.
190. X v. Netherlands, No. 8099/77 (Eur. Comm'n of Hum. Rts. July 10, 1978) (decision as
to the admissibility of application), reported in 1 Strasbourg Digest 125-26; X v. Federal
Republic of Germany, No. 7495/76 (Eur. Comm'n of Hum. Rts. May 21, 1976) (decision
as to the admissibility of application), reported in 1 Strasbourg Digest 125-26; X v.
Denmark, 7 Eur. Comm'n H.R. Dec. & Rep. 153, 154-55 (1976); X v. Federal Republic
of Germany, 5 Eur. Comm'n H.R. Dec. & Rep. 154, 154-55 (1976); X v. Federal Republic
of Germany, 32 Eur. Comm'n H.R. 87,94-95 (1969), 1970 Y.B. Eur. Conv. on Hum. Rts.
806, 822-24.
191. X & Y v. United Kingdom, No. 8897/80 (Eur. Comm'n of Hum. Rts. Mar. 12, 1980)
(decision as to the admissibility of application), reported in 1 Strasbourg Digest 153.
192. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, G.A. Res. 39/46 Annex, art. 3, para. 1, 39 U.N. GAOR
158

Supp. (No. 51) at 198, U.N. Doc. A/39/51 (1984) [hereinafter U.N. Convention Against
Torture], provides that "no State Party shall expel, return ('refouler') or extradite a
person to another State where there are substantial grounds for believing that he would
be in danger of being subjected to torture." Under this Convention, "[f]or the purpose
of determining whether there are such grounds, the competent authorities shall take into
account all relevant considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or mass violations of human
rights." Id. art. 3, para. 2. The Convention entered into force on June 26, 1987.
193. For decisions in which the European Commission of Human Rights denied applications
of individuals' petitions under article 3, see supra note 185.
194. See supra note 185.
195. Applications involving the rights of aliens under article 3 typically concern deportation
and extradition cases, and only rarely relate to refusals of entry. For one major ex-
ception, see Drzemczewski, supra note 114, at 120 (non-admission for racial reasons).
196.Giama v. Belgium, 21 Eur. Comm'n H.R. Dec. & Rep. 73 (1980}, 1980 Y.B. Eur.
Conv. on Hum. Rts. 428.
197. ld. at 85-87, 1980 Y.B. Eur. Conv. on Hum. Rts. at 428-32; Drzemczewski, supra note
114, at 118.
198. "Refugees in orbit" are persons "dispatched from one state to another upon the premise
that each successive destination is considered by the last to be the country which should
examine the request [for asylum]." Perluss & Hartman, supra note 2, at 623 n.328
(quoting Council ofEur., Human Rights Files No.9: Problems raised by certain aspects
of the present situation of refugees from the standpoint of the European Convention on
Human Rights 9 (1984)).
199. See 1 G. Dahm, Volkerrecht 288 (1958); A. Verdross & B. Simma, Universelles Volker-
recht: Theorie und Praxis §§ 1211, 1230 (3d ed. 1984).
200. U.N. Convention Against Torture, supra note 192, art. 3, para. 1. For the text of article
3 of the European Convention on Human Rights, see supra note 175.
201. Id. art. 1, para. 1.
202. For the text of article 3 of the U.N. Convention Against Torture, see supra note 192.
203. U.N. Convention Against Torture, supra note 192, art. 16, para. 2.
204. See supra note 201 and accompanying text. The drafting history of the Convention
shows that corporal punishment, particularly under Islamic penal law, extremely cruel
or degrading as it may be as practiced in some countries, was to be excluded from the
scope of the Convention. Based on standards which have been widely accepted in the
United Nations Covenant on Civil and Political Rights, Dec. 16, 1966, G.A. Res. 2200
Annex, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316, and many regional
human rights instruments, this exception seems to be unacceptable. The definition,
however, indicates how difficult it may be to agree in substance on human rights
obligations restricting the rights of states to proceed with their nationals according to
their own religious or moral standards. Even stronger objections may apply concerning
the rights of states to regulate the entry and termination of stay of aliens.
 SANCTUARY: A COMMENT ON THE IRONIC RELATION
BETWEEN LAW AND MORALITY

TOM GERETY

"Hide the fugitives; do not betray the refugees." Isaiah 16:3 1

"We have no sanctuaries here." Warden v. Hayden, 387 U.S. 294,

321 (1967) (Douglas, J., dissenting).

One who "knowingly conceals, harbors, or shields from detection... any

alien ... not lawfully entitled to enter or reside within the United States"
commits a federal crime. 2 There are all sorts of reasons to disobey this law,
some more interesting than others. You may want to break this law to keep
an undocumented alien worker in your factory, or your home. A straight
calculation of the costs of more expensive or less docile labor may suggest
that the risks of a $2,000 fine or five years in prison are worth running. There
are independent contractors, called coyotes, who will bring aliens across the
southwestern border and deliver them to workplaces. Some will break the
law to help family and friends. But surely the most interesting violators of
this law (and laws like it elsewhere in the world) are those who do so on
principle, including religious principle.
The relation between principles and politics is always tricky. Nothing
makes it trickier than the hardening of principles, or supposed principles,
into rules. In immigration law in the United States we have not had a lengthy
experience oflaw-making on the basis of anything we would dignify with the
word principle. Immigration law mirrors, almost too well, the history of our
politics, and our prejudices. 3 Nonetheless our refugee law, since 1980, has
embraced the important but tangled principle that we as a nation will provide
a refuge for those threatened with persecution.4
There is nothing in this to make religion - and religious principle - central
to the argument about refugee and immigration policy. The religious content
of our immigration law remains slight at best. 5 And religious objections to

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
160

the enforcement of these laws and policies had, until very recently, little
about them that seemed specifically religious. People of religious conviction
have persistently objected to features of our immigration policies. A genera-
tion ago Reinhold Niebuhr and others urged: Admit people without regard
to the accidents of birth, or the opinions they hold in politics and religion.
Yet the same objection was voiced by others not so religious, moralists like
John Dewey or radicals like Norman Thomas. 6 If there was a specifically
religious objection to immigration procedures and regulations, it was not the
plain one that the laws are wrong or wrongly administered.
The group of people who call themselves the sanctuary movement are for
the most part religiously motivated. But this scarcely distinguishes them
from others engaged in movements of immigration protest and reform.
Religious motivation is as hard to pin down as any other, and harder to
define. It often merges into the broader currents of moral and political
opposition to government policy. There is nothing wrong with such a merger,
morally, politically, or even religiously. It occurred during the civil rights
campaigns of the 1950s and 1960s. It occurs again in the revival of politics
amongst American fundamentalists. The merger makes it hard, nonetheless,
to identify the specific religious contribution in politics or morals.
We meet no such difficulty with the sanctuary movement. It is not just
another, more conspicuous, example of religion in politics. More stubbornly
than many other religiously identified political efforts, it resists merger or
assimilation into larger political movements. True, its claims, including the
claim of sanctuary itself, can be restated in more or less secular terms: Our
foreign policy allies us with oppressors; our refugee policy turns away the
persecuted; our churches and colleges and even our cities must become
places of refuge. None of this disguises the religious message of the move-
ment as a whole. Sanctuarians challenge congregations and whole denomi-
nations to a renewed religious faith tested by the granting of sanctuary. They
take the concept of sanctuary from religious scripture and tradition. They
apply it in secular politics with little hesitation about its meaning for those
who are not religious, or not religious in the same way. And whatever our
relation to the sanctuary movement, whether we are critics, sympathizers,
or participants, it is the religious nature of its claims about American law
(and not just American immigration law) that holds our attention. Those
claims hold ironies for law and jurisprudence as well as for politics, religion,
and morality. This essay explores some of those ironies.
Irony often reflects ambivalence. The most striking ambivalence in the
sanctuary movement is not about religion but about law, or lawfulness. Is
the offering of sanctuary to refugees who are not recognized as such by the
government an act of disobedience to law or not? On this most basic
 161

question many of the people in the movement remain ambivalent. Consider

the testimony of one whose mind is now made up:

Initially, those of us involved in sanctuary assumed that as non-violent

direct action that government officials claim is unlawful, sanctuary is
a variant of the civil disobedience that matured in the practice and
reflection of Thoreau, Gandhi, and King. But our subsequent practice
of sanctuary on the border has led to the discovery that, as community
with the persecuted, sanctuary is the foundation for peace-making that
is in significant measure outside the range of civil disobedience. Mis-
conceiving sanctuary as a variant form of civil disobedience blinds us
to its actual dynamics as a socially constructive practice of our faith. 7

The "practice of sanctuary on the border" convinced Jim Corbett that

sanctuary is not "a variant of civil disobedience." This is a puzzling, perhaps
deliberately puzzling, conclusion. Corbett's abstract phrases tell us very little
about how he came to see sanctuary as something other than civil disobe-
dience. The Rev. William Sloane Coffin, arguably the first American to
invoke the old notion of sanctuary in our politics (and religion), gives a more
conventional reading to the relation between the sanctuary movement and
the tradition of "Gandhi, Thoreau, and King." 8 "We wish to remind the
Immigration and Naturalization Service," he told an enthusiastic audience
at the Sanctuary Symposium in Tucson, "of Thoreau's words: 'They are
lovers of the law who uphold it when the government breaks it. "'9
Is the sanctuary movement engaged in civil disobedience, that is, in
violating the law for conscience's sake? Or is it engaged in a set of activities
that remain somehow within the law? On this question, curiously, the sanc-
tuary movement cannot quite make up its collective mind.

I. TWO SANCIUARIANS

Corbett holds out for what I will call the fundamentalist position: Sanc-
tuary is "completely legal." 10 More than a statement of fact, this is a prophe-
cy of sorts (articulated by one who describes himself as an "unbelieving
Quaker"). Sanctuary is legal because it has to be. Any compromise in this
conviction jeopardizes the mission of rescue and reform, which requires
moral passion and therefore moral clarity.
Corbett sees sanctuary as "the exercise oflocal initiative in protecting the
victims of state crimes, as required by the Nuremberg principles."llOnly a
"constructive understanding," he says, "of the sanctuary covenant's relation
to international law" will provide the "social base" for his movement. 12
162

Although it is plain what portion of international law he has in mind -

namely, the 1967 Protocol Relating to the Status of Refugees with its
language about "a well-founded fear of persecution" 13 - it is not so plain
what Corbett means by the abstract phrase "social base."
First, he seems to mean some basis in law for the argument, with Coffin
and Thoreau, that the government errs and the citizen points out its error.
The short form of this argument has it that the government refuses to
recognize the "well-founded fear of persecution" of many people from
countries like El Salvador who come here to seek asylum. The government
errs in this judgment, a mixed judgment of law and fact, with tragic conse-
quences for those not deemed refugees. Corbett sees himself upholding the
law the government breaks.
Corbett insists that these cases are easy. The government and its lawyers
have misconstrued the law and the facts, probably willfully. He greets with
incomprehension the suggestion that the Salvadorans who flee fall outside
the scope of the definition of refugee in international and domestic law. Pass
this incomprehension by, however, and the intellectual seriousness of the
fundamentalist position becomes more evident. For the second and richer
meaning of Corbett's "social base" is theological or ecclesiastical. He writes
that "sanctuary for the victims of persecution is inherent in the congregation-
al practice of a deeprooted and widespread faith ..." 14 Again, his language
veils the concreteness of what he has in mind. If you have religious faith, he
seems to say, and it is a faith shared in a community or congregation, then
you must give shelter to those in flight from likely death or imprisonment.
To call this a fundamentalist conviction is not to suggest any particular
theology behind it. Corbett describes himself as "a true unbeliever" who
cannot "believe selfhood survives death" and considers "any conceivable
God to be an idol." 15 The first article of his faith is the rejection of idols,
including, presumably, positive legality. What is fundamentalist in this faith
of his is the certainty of his conviction about the right course of action,
morally, legally, politically, and religiously. Sanctuary is valid, indeed imper-
ative, from every perspective to which Corbett accords respect. Corbett
speaks of himself and some others, not without a trace of pride, as working
in the sanctuary movement "on the border." Others tell his story: 16 Corbett
lived for many years on a ranch in Arizona not far from the border with
Mexico. Near there, in the summer of 1980, a coyote smuggler abandoned
a group of Salvadorans in the desert. Many of them died. The following
spring Corbett heard from an acquaintance about a Salvadoran refugee
intercepted by the border patrol at a place called Peck Canyon. Corbett
called to ask the local INS office what had happened to him. No one was
willing to say. That small refusal prompted Corbett's first, hardly noticeable,
gesture of illegality on behalf of refugees.
 163

Determined to find the refugee and help him, Corbett called the regional
office of the INS. This time he had a stratagem. There is an Arizona
politician, a former mayor of Tucson, also named Jim Corbett. So our
Corbett announced himself to the regional supervisor with some authority.
He was Jim Corbett and he wanted to know where to find a refugee picked
up the day before at Peck Canyon. The official quickly gave him the name
and location of the detained Salvadoran. 17
Corbett took a G-28 INS form to the Nogales detention center. The young
man signed the form making Corbett his legal representative. He also told
Corbett about other Salvadorans held there. Corbett then left the jail to get
forms for the others. The INS personnel at Nogales realized meanwhile that
this was not the politician with whom they thought they dealt. They quickly
arranged for the transfer of the Salvadorans to another detention center,
farther away, in El Centro, California. Again, they refused to tell Corbett
where the Salvadorans were held.
Now the designated representative of one Salvadoran, Corbett was not
to be put off. He linked up with lawyers and clergy in Tucson. He found out
where the INS held the Salvadorans from Nogales. When one of his asso-
ciates had a sheaf of G-28s taken from her and destroyed at El Centro,
Corbett and his friends sued out an injunction against the INS agents with
whom they dealt. Corbett obtained the parole release of the Salvadoran
whom he represented. He took him home with him. And like the old man
who takes in one cat and then another, Jim Corbett soon sheltered twenty
and more Salvadoran refugees. By most accounts this was the beginning of
the sanctuary movement.
The story of its beginning is a morality tale of sorts. Its elements are more
or less familiar: An innocent stumbles upon a wrong that a less generous soul
would have ignored. The innocent attempts what seems a straightforward,
unthreatening, gesture of amelioration. Then he himself is wronged. This
leads to anger and so to further involvement- and further acquaintance with
the wrong. Hesitation gives way to commitment. Soon the protagonist has
found a cause, an all-consuming commitment to righting a set of wrongs.
Contrast this with Coffin, a veteran of many causes, and a somewhat
predictable protagonist in this one. Coffin brings with him to the sanctuary
movement the considerable resources of his church, along with a patented
brand of rhetoric and leadership. To him the sanctuary movement stands in
continuity with the great dissenting struggles of his lifetime. Indeed, sanctua-
ry unites the greatest of these, civil rights at home and peaceable policies
abroad. Coffin has read about conditions in El Salvador; he has visited the
country more than once; he has spoken with Salvadorans in flight from
danger or oppression. He was never an innocent, however.
164

To contrast Coffin and Corbett may not be fair to either. Corbett's life
exhibits a conversion that is persuasive of the urgency and righteousness of
his cause. Coffin's life has been a public one, with more causes than we can
easily count. He needed no conversion experience to embrace the sanctuary
movement. It was predictable that he would join in with fervor and flair.
There is nothing in this set of circumstances to suggest that one of these men
is better than the other, or his actions either. Yet we cannot help but notice
how differently situated each of them was at the time of first encounter with
the wrong that sanctuary addresses. Corbett was to most of us an unknown
rancher Gust as Coffin was a well-known pastor and chaplain). This fact
alone suffices to make the point. One reads Corbett's story as the morality
tale of an innocent man confronted with a great wrong. His reaction speaks
for all of us. If an unconcerned rancher comes to see it this way, then so must
I.
In contrast, Coffin and others like him bring to the sanctuary movement
the experience of other causes, other wrongs. They are not innocents encoun-
tering a wrong for the first time; they are sophisticates. Their lives betray a
willingness, even an eagerness, for dissent, for outrage. Many of us distrust
this eagerness as too easy, too available. It cannot vouch so well as Corbett's
innocence for the moral passions of the cause.

II. MOVEMENT JURISPRUDENCE

The line between innocence and experience runs through the jurispru-
dence of the movement as well. Coffin speaks of law in the now traditional
language of civil disobedience.

In 1980, Congress passed a refugee act that recognized political asylum

as the right due those fleeing persecution. It is a good law. But it is being
miserably misinterpreted by the INS. 18

Coffin's objection to the official interpretation of the immigration law

differs little from Corbett's. "While correctly classifying as political refugees
people escaping a variety of communist lands," he writes, "the INS insists
on labeling Salvadorans and Guatemalans as economic refugees and, as
such, deportable." 19 But Coffin sees the sanctuary movement, like so much
civil disobedience before it, as essentially in aid oflaw reform. It is an appeal
to law-makers and law-deciders to improve, sometimes radically, sometimes
not, the law in operation. Thus he writes that
 165

Congress could put the sanctuary movement out of business today by

doing one of two things: Insist that the Refugee Act of 1980 be properly
administered according to both the spirit and the letter of the law, or
alternatively, pass a so-called extended voluntary departure act, which
would allow the Salvadorans and Guatemalans to remain in this
country until such time as it was deemed safe for them to return home. 20

Corbett is never so sanguine about America.

To Coffin, the lessons of civil disobedience remain hopeful. He indulges
in the rhetoric of sanctuary fundamentalism, all right, but only in condemn-
ing American foreign policy. Law and even politics emerge unscathed. He
writes that "the United States wants to continue to control what goes on
south of its border, in the same way that the Soviet Union wants to control
what goes on in Afghanistan." His prescription, for all that, seems mild. "We
in the sanctuary movement should do everything in our power," he says, to
change this. But "everything" consists of the usual array of efforts to sway
elected representatives: "phone calls, individual letters, letters from church
and synagogue bodies," all "to persuade Congress to follow" one of his "two
paths."21
Corbett's jurisprudence is not much more elaborate than his theology. But
it begins, with Job again, in radical despair. "[ S ]anctuary," he writes, "is the
needle's eye through which congregations composed of the beneficiaries of
violence are entering into active community with the violated." 22 The church
in sanctuary, he says, begins at last "to free itself from seventeen centuries
of Constantinian captivity."23 To Corbett, the United States is a sponsor
and perpetrator of"state crimes": our citizens are beneficiaries ofviolence,
exploitation, and persecution. This makes the Nuremberg Principles - of
non-cooperation with "crimes against humanity" - the basis for an under-
standing of the legal status of sanctuary efforts.
No one, Corbett maintains, can deny that America and its Central Ameri-
can allies use "military means to maintain established patterns of rule in the
Third World. " 24 He argues that massacre, bombing, and the relocation of
survivors- in short "pacification"- are the elements of"the Pentagon's final
solution to the Third World problem."25 He carries the implicit analogy
further: "[W]e Anglo Americans seem to share some of the Third Reich's
moral insensitivity to technocratically organized mass murder." 26
From here, the argument is simple: If what the American government does
in Central America is the moral equivalent of Nazism, then all sensible
resistance to the American policies enjoys not only moral but legal validity
- whatever the positive laws of America may hold. Indeed, if we take the
argument seriously, then American law itself protects acts of rescue under
the doctrine of necessity. 27
166

In this aspect, Corbett's resistance to Central American policy has no

intrinsic or necessary relation to American refugee policy. It is the American
role in the oppression of Central Americans that he condemns. Oppression
does force people to flee. It makes refugees of those who escape. Still, in the
context of so much death and dying, the refugee issue has less importance
than the issue of oppression itself. What makes the refugee question so
pressing, for Corbett as for all of us, is that we in America meet these refugees
at our borders. They need shelter, as he sees it, from our government's
policies at home and abroad. At home the policies are those settling
questions of refugee status and permission to reside in the United States.
Abroad the policies are those of aid and collaboration in oppression.
The connection between the two sorts of policy (and law) is vital to
Corbett, to Coffin, and to the entire sanctuary movement. It explains the
nearly exclusive focus in sanctuary literature on Central American refugees.
The point is that these are our victims who seek our help. Our government
put them in the position they are in at our borders. Our response to them,
then, is also a response to our own complicity.
Corbett's absolute moral position has notable advantages in arguments
within the movement. His first premises derive always from the Nuremberg
Principles; they leave democracy in the United States more or less bereft of
legitimacy. Americans, after all, are to him collaborators in state crimes.
Local governments, non-sanctuary churches, schools, airlines, indeed nearly
all American institutions "are actively collaborating in the commission of
crimes against humanity." 28 Sanctuary, then, is one opportunity not to
collaborate. It is itself a moral refuge, and perhaps the only one.
Corbett brings an unmatched passion and conviction to these arguments.
But this fanaticism makes for an impatient jurisprudence. He acknowledges
that the niceties of immigration law prove strategically helpful. "An ongoing
violation of refugee rights by federal officials generates a crisis of legitimacy
throughout society."29 And his movement, he says, bears a "juridically
constructive relation to the state." 30 By this he means that the movement
teaches the lesson of citizen responsibility for state crimes, the lesson of
Nuremberg. He means as well that it can teach the more complex lessons
of human rights for refugees, under the variety of statutes and agreements
in domestic and international law. For this it requires courts and juries,
however. Thus Corbett all but welcomes the federal prosecutions of sanctua-
ry workers like Stacey Merkt and Jack Elder- and ultimately of himself and
his Tucson colleagues. 31
These trials must discomfit any government lawyer with a less than
absolute conviction of the merits of his case. International and domestic law,
as Corbett argues more than competently, promise protection of those with
"a well-founded fear ofbeing persecuted for reasons of race, religion, natio-
 167

nality, membership in a particular social group, or political opinion.'m Even

excluding race, religion, and nationality, there is ample room to argue that
Salvadorans and Guatemalans, among others in Central America, have
reason to fear persecution on the basis of group affiliation and political
conviction. The United Nations High Commissioner for Refugees has con-
sistently taken the position that refugee status does not depend solely on the
actions of national governments ;33 thus the likely victims of the insurgents
would also qualify. Corbett also cites Article Fourteen of the Universal
Declaration of Human Rights: "Everyone has the right to seek and enjoy
in other countries asylum from persecution." Together with the Geneva
Conventions, which may prohibit the return of refugees to the theater of war,
these bits and pieces of international law would daunt many a jury member
otherwise prepared to convict sanctuary workers under the harboring and
transportation statute. For this reason judges and prosecutors have been
loath to admit arguments at trial on the question of international law and
refugee status.
Corbett suggests that such resistance- taken to an extreme by Judge Earl
H. Carroll in the Tucson case34 - violates the First Amendment rights of
churches and church-members. The "prosecution [then] constitutes an at-
tack on the established rights of the church itself." 35 His argument here
remains obscure in its details. It mixes theology and law, a move more
characteristic of the sanctuary movement as a whole than of Corbett himself.
He says nonetheless:

The protection of war victims and the persecuted as established by the

existing body of humanitarian and human rights law is, in addition to
being a civic duty, a practice of our covenant faith. 36

This faith, like any other, can appeal to the religion clauses of the First
Amendment for protection from the government. Its "established rights,"
however, do not go as far as Corbett says. It is a curious mark of what I have
called Corbett's fundamentalism that he can indulge in legalism even as he
denies its validity.

III. THE QUESTION OF LEGALISM

Legalism pervades the sanctuary movement, but it is not clear why. Any
religious movement in radical politics has reason to know its law, and the
knowledge must go beyond the charges filed against its members. Still, the
sanctuary movement has learned its law quickly, and almost too well. Its
168

legalism seems more thorough, more elaborate, and more urgent than its
circumstances require.
Its legal arguments divide more or less roughly into sacred and profane
themes. Some depend upon the religious identity of the movement; others
do not.
The secular arguments need little restatement. The foremost of these is
that our refugee policies discriminate against those fleeing oppression at the
hands of governments supported by the United States. The argument relies
on the unfairness of our treatment of Salvadorans in comparison to, say,
Bulgarians or Poles or Nicaraguans. The numbers vary from season to
season: In 1984, less than three percent of the Salvadorans requesting
asylum in the United States succeeded in obtaining it; Nicaraguans succeed-
ed in fifteen percent of the cases, Poles in thirty, and Bulgarians in fifty. Of
the adjudicated cases that year, Guatemalans may have fared the worst.
Only three Guatemalans out of nearly eight hundred were allowed to stay
in the United States. 37
The question of equity in asylum proceedings comes to this. Are asylum
decisions made on the merits of individual claims or on the basis of our
foreign policy? The fair answer is, some of both. This leads us to important
questions of degree.
The sanctuary movement finds in the INS procedures and results a near
absolute degree of inequity. A Nicaraguan with no real basis to fear for life
or liberty wins asylum while a Salvadoran in mortal danger does not. The
answer from the State Department, which performs an advisory role in
asylum proceedings, and the INS is complex. In part, officials hide behind
the pretense of individualized adjudication. There is no telling, on this
account, how the particular facts impressed the hearing officer or the district
director. At times, though, officials admit that the official story must include
elements of foreign policy. 38 Our friendliness towards particular countries
does affect (and is affected by) our view of the political and legal conditions
within those countries. Thus Iran under Khomeini, or Nicaragua under
Ortega, is seen as less merciful than El Salvador under Duarte.
Allowing for honestly felt conviction on the part of officials, the sanctuary
movement seems nonetheless to have caught the government out in an
evasion. Individual cases do depend on judgments of credibility. And raw
statistics cannot tell us much where governments treat individual citizens so
differently. Nonetheless few of us will doubt that among the Guatemalans
and Salvadorans denied asylum, some will suffer persecution (and will have
harbored a well-founded fear of it). American foreign policy sways many of
these judgments on whether to grant asylum or deny it.
Still, the conviction that chronic inequities occur in the asylum process
provides us with a motive for legal argument but not with the argument itself.
 169

In domestic American law, such an argument must rely on the Constitution,

particularly the due process and equal protection clauses. Both provide
simple and persuasive arguments for the unfairness of the procedures as I
have described them. Thus it looks very much like a denial of due process
to discredit evidence at an individual's hearing because of extrinsic conside-
rations such as foreign policy. It also looks like a denial of equal protection
to raise and lower the standards of proof of persecution according to the
friendliness or unfriendliness towards the United States of the government
in question. 39 Some federal judges have shown sympathy to these argu-
ments.40 Most have not. Not only is the proof of discrimination elusive, but
its lawfulness - as a matter of sovereign discretion in foreign policy and
immigration- is always arguable. 41
To the sanctuary movement, these are important arguments not so much
because they are winning arguments as because they are satisfying ones -
plausible, cogent, persuasive. But the satisfaction remains moral rather than
legal.
Of course Corbett and Coffin, and many others, cite international law,
more or less aptly. They argue that we dishonor our international obligations
when we deny asylum to bonafide refugees. That argument runs into another,
also apt and also from international law: Sovereign nations exercise sove-
reign discretion over their own borders. In the trials of the sanctuary move-
ment, judges have barely tolerated defenses from international or even
constitutional law. Perhaps as a result, the reported arguments of the move-
ment have seemed unduly narrow and technical. The statute does not reach
sanctuary activities, they argue, but only "harboring and transporting" for
profit; no criminal intent obtains in the sanctuary cases. 42 Defenses of this
sort have not met with success. They are legalistic, all right, but out of
convenience or necessity. They offer no real evidence of the thesis that
legalism pervades the sanctuary movement. The more religious arguments
do.
Corbett alludes to the First Amendment argument that the practice of
sanctuary, as an injunction of faith, comes under the free exercise of religion.
Activists in the movement, like Corbett himself, treat this as a simple syllog-
ism: The First Amendment protects the free exercise of religion; sanctuary
is a free exercise of religion; therefore the First Amendment protects sanc-
tuary. This view pays no heed to relevant precedent under the free exercise
clause. Like other radical movements before it, the sanctuary movement
stands to gain rather little from the citation of precedents. Only the notorious
Peyote Case, decided by the Supreme Court of California in 1964,43 upheld
free exercise as a defense to criminal charges. The rest of the reported cases
follow the result in Reynolds v. United States, 44 the polygamy Case, in which
"actions which were in violation of social duties or subversive of good order"
170

got no protection from the free exercise clause. Lawyers for Jack Elder, in
his first sanctuary prosecution, gained a hearing for these arguments before
Judge Hayden Head. But there as elsewhere the arguments failed. 45 Reli-
gious claims, however urgent, will not soon override the criminal law in
American courts.46
It is at this point - where technical lawyering fails - that sanctuary's
legalism becomes most pronounced and most interesting. Instead of turning
away from law and legal argument, towards religious conviction unaided by
legal tradition, the sanctuary movement resorts to a kind of utopian legalism.
Corbett's arguments in international law prepare us for the optimism but not
the religiosity of this legalism.
Recall that Corbett stands quite self-consciously outside the relatively high
theological traditions of the churches most involved in sanctuary. Lutherans,
Episcopalians, Roman Catholics, and Presbyterians make up the largest
number of sanctuarians. Corbett's agnosticism is unique. For most in the
movement, the religious precedents matter much more than the legal. For
most it seems important that they are precedents: authoritative decisions
taken in the past and returned to in the present. These precedents are
understood as religiously (and conscientiously) significant, of course. What
is more curious is the utopian legal validity attributed to them.
The precedents include:
- The citation of the Old Testament's six cities of refuge as suggesting a
more or less continuous tradition of sanctuary respected by secular and
legal authority. 47
- Ancient Greek (and later Roman) traditions of sanctuary for escaped
slaves and other fugitives from legal authority at the site of temples and
holy places. 48
- Examples from the New Testament where the life and teachings of
Jesus suggest mercy for the fugitive or even shelter from the agents of
the state.49
- Early Christian legislation by both emperors and popes which permitted
churches to grant asylum to fugitives. 50
- A range of examples in English legal history in which monasteries,
churches, and even towns enjoyed, for centuries, the power to shelter
fugitives from the ancient custom of blood feud, and from the perse-
cution of the King. 51 This tradition gave rise to both the vocabulary of
sanctuary in English, and to arguments that churches should enjoy
genuine legal immunity, and not just immunity from intrusive search
and seizure.
- Instances from the history of the reformation. 52
 171

- An instance from the last years of the Puritan Revolution when three
regicides of Charles I fled to New England. Their pursuers ran into the
defiance of the New Haven colonists, who quite self-consciously cited
Old Testament precedent for the proposition that the fugitives were not
to be handed over to the officers of the state. 53
To the technical legal arguments of national immigration law, that this
person (or that group) does not fall within the statute law or regulations, the
sanctuary movement says that law should follow the sanctuary precedents.

IV. THE ANXIETY OF DISSENT

"He became what he beheld," wrote Blake. 54 Peaceable movements like

sanctuary may tum to legalism because everywhere, in their struggles, legal-
ism is what they encounter. They become like the judges and prosecutors
they behold. Yet this movement has met more with diffidence than hostility
from law enforcement officials.
Corbett's experience, it is true, was of arbitrary bureaucrats responsive
only to court orders. He quickly became a master oflegal argument. None-
theless he remains an exception. Overall, the legalism of the sanctuary
movement seems more rooted in a fundamental anxiety about dissent than
in the experience of litigation.
Up to a point, dissenters in a democracy owe no apologies to anyone. "I
don't like the majority's policies," the dissenter says, "and I will not shut up
about them until they change." As Meiklejohn argued decades ago, 55 this is
the way that democracies- 'liberal' or free democracies- work. The citizenry
must govern itself (albeit through elected representatives). To govern you
need policies, and to have policies you need opinions. Opinions in democra-
cy form and reform in the course of an endless argument. To dissent is to
participate in this argument. Dissent is not only legitimate, but necessary.
Whenever the dissenter insists on more than outspoken criticism, howev-
er, she crosses over into an area of doubt, of anxiety. "I disagree so strongly
with the policy," the dissenter now says, "that I cannot abide its enactment
into law: I will not only criticize the law, I will disobey it."
Civil disobedience has been a subject of self-conscious reflection in Ameri-
ca since the civil rights movement, if not long before. 56 Political philoso-
phers, in particular, have found in civil disobedience an application of
age-old questions about the moral authority oflaw and government. Assum-
ing that the laws passed in this country are passed fairly, then by what right
does an individual refuse to obey? By some moral right, comes the answer.
Segregationist laws and customs put this question before us in the 1950s and
172

1960s. 57 To many it was self-evident that the majority's laws were simply
wrong- wrong to pass and wrong to obey. And questions about the legitima-
cy of the majority's procedures for legislating - segregationist procedures
nearly everywhere- made the argument all the stronger.
None of the early reflection on these questions showed much doubt about
the morality of disobedience. It was during the Vietnam war that the litera-
ture of civil disobedience began to reveal an underlying anxiety. If an inte-
grationist could disobey a law on her own say, could not a segregationist do
the same? Civil disobedience applied to the draft laws meant that the resister
escaped the dangers of war. Whether in Canada, in jail, or in alternative
service, someone else had to go in the dissenter's place.
Those who had studied civil disobedience came up with classifications of
its varieties and purposes. 58 Was it done openly or covertly? With a willing-
ness to serve a jail term or pay a fine? With an intent to be politically effective
or solely to bear moral or religious witness?
The sanctuary movement does not present us with civil disobedience
along the classic lines of the civil rights movement. Open disobedience to law,
for one thing, will lead to the arrest of refugees. The sanctuary movement
sees itself as an underground railroad of sorts. Sanctuarians willingly accept
the risks of punishment, but in no sense do they seek out punishment. And
while they hope for law reform, they show little or no faith that the courts
will one day deliver it.
The ambiguity of many of these positions may help to explain the anxiety
of dissent in the sanctuary movement. Where the civil rights and antiwar
movements permitted (and even required) a degree of optimism about
changes in American law and policy, the sanctuary movement has a bleaker
outlook. Its favorite analogy for America is Nazi Germany. Its rhetoric is
resolutely anti-imperialist. Even its preferred remedy - the offering of a safe
haven to all who are at risk in the world- seems more and more unrealizable.
From this vantage, then, the pronounced legalism of the movement counts
as all the more remarkable. The movement cannot hope to achieve its ends
in litigation. What does its legalism accomplish?
To a group of conscientious people, otherwise committed to democratic
process, civil disobedience represents an extreme step. It is, after all, a refusal
to go along with the democratic process. And if that process means anything,
morally speaking, it means that a majority can rightfully make and enforce
law. Faced with laws and policies of which the majority approves, then, the
dissenter who would disobey must find some moral ground to stand on.
Conscience is, for good reason, the first and last resort in these cases. But
conscience is for most of us far from infallible. "What if I am wrong in this?"
"Does my insistence on the rightness of civil disobedience have any more
 173

authority than a segregationist's (or, more pointedly, an immigration vigil-

ante's)?"
Out of this perfectly conscientious anxiety comes legalism. Above all,
legalism is a resort to precedent, which provides a moral community for
judgments otherwise isolated. In this way, legalism allays the moral anxieties
of dissent.
In suggesting this, I mean no slight to the sanctuary movement. Moral
solipsism is always among the risks of moral reflection. One who thinks for
himself will on occasion think differently from others - and act differently
too. An active conscience must sometimes force some of us to break what
we take to be immoral laws. This century teaches that lesson too well.
Without law, what checks remain for conscience? This is a naive question,
I admit. Nothing binds moral conscience to positive law; perhaps nothing
should. We all know that law can never act as the final check on moral
reflection. It is, as Bentham argued, 59 all the other way: Moral reflection acts
as a final check on positive law (and, by extension, on obedience to it).
Still, our moral reflections proceed by way of suggestions from others, and
often from suggestions embedded in law. "Moral philosophy is Socratic,"
John Rawls wrote in the early pages of A Theory of Justice. 60 It begins with
our settled judgments about right and wrong; it then tests these against wider
concepts, against theory. In the course of testing we revise both the intuitions
with which we began and the ideas to which we proceed. Out of this will
come, Rawls hoped, a "reflective equilibrium" in which we can say that our
judgments are well considered, or conscientious.
The place oflaw in this process varies from situation to situation and from
person to person. Law can sometimes act as a check on moral judgment.
Thus the law's hesitancy has made legal scholars pause before embracing
Good Samaritanism as a legal obligation. 61 In a democracy, the moral force
of well-considered laws should be (and is, for most of us) significant. For
the sanctuary movement, it seems, the laws whose enforcement they resist62
must be countered by other laws, some taken from Scripture, some from an
inventive and insistent reading of English, American and other legal trad-
itions.
A concern with laws that have none of the (non-moral) force oflaw is not
necessarily futile. Public international law is a good example of a body oflaw
without - or nearly without - regular procedures of enforcement. Moral
suasion lends some authority to even the most wishful of the United Nations'
declarations of right. Still, the preoccupation of the sanctuary movement
with law seems out of proportion to the real uses of law - enforceable law
- for the movement's ends.
This obsessive quality of sanctuary legalism can be explained in many
ways, the simplest of which is perhaps the best. Sanctuarians are an inordi-
174

nately conscientious lot, inclined to extensive moral, theological, and politi-

cal reflection. They show a passionate commitment, in their own affairs, to
democratic processes. 63 For them to disobey a law- indeed, to do what
many of their countrymen see as morally wrong - is no small thing.
But their legalism is more than a solace for the conscientious anxieties that
accompany their disobedience. Their precedents provide a community, in
which people of good conscience and sensible judgment have approved of
(and insisted upon) sanctuary. Thus, the American sanctuarians are neither
so eccentric nor so radical as they may sometimes appear - even to them-
selves. What sanctuary has sought and found is a community of moral
judgment, dispersed in time and space, and structured by law and precedent.
It is an alternative to the erring community of moral judgment- and enforce-
able law - that is our democracy.

V. CONCLUSION

There have been many accounts of the relation between law and morality.
Most legal philosophy (and, indeed, much moral philosophy) begins and
ends with an effort to reduce that relation to a system, or a formula. 64 This
is not the place for either. Nonetheless I draw a lesson from the sanctuary
movement: Above all I am struck by the irony of sanctuary legalism. A
self-consciously religious and moral movement finds its preferred style of
argument in law. Even the substance of its arguments comes mostly from
law (if not from a unified legal system). This makes sense for a very simple
reason. Law can provide the structure for a moral community. That structure
may prove flimsy, or dilapidated, or unworkable; still it is often the only
structure available. The community itself may not exist except as an act of
will and imagination by those, like the sanctuarians, who want it to exist -
and who want to act as if it exists. In such a community, law can provide
a structure for argument, for authority, even for sensibility. Nothing wholly
dispels the sense of isolation that comes from resistance to the majority in
a democracy. Still it is the imagination of law - of better law -that restrains
and inspires the radical dissenter.
This is one irony, but there are others. I suspect that a study of the
defenders of our immigration policies would show that the ironic relation
between law and morality holds for them as well. Possessed of self-evident
legal authority, and much in the way of precedent, they resort all the same
to moralism. They do this to allay an anxiety that ought to be encouraged
in our time: the anxiety that comes (or ought to come) not from disobedience
but from its converse, from the enforcement of laws over protest and
 175

complaint. Doubts about the rightness of official action, of majoritarian

policies in a democracy are nearly always healthy.
Is what I argue here only what Aristotle said a long time ago about
advocacy? "If the written law is counter to our case, we must have recourse
to the general law," he wrote in the Rhetoric. 65 "But if the written law favours
our case, we must say that the oath of the dicast 'to decide to the best of his
judgment' does not justify him in deciding contrary to the law ... " Variations
on this theme give us the sum of all that we call lawyering. But the irony in
the shifting strategies of lawyers need not run very deep. The irony that we
find in the sanctuary movement, and among its opponents, is far more
interesting.
It is a matter of tactics in politics (and in the courts) to argue law without
reference to morality or vice versa. It is at the same time a matter of more
than tactics. Try as we will, we cannot get law out of relation to morality,
or morality out of relation to law. When we insist on the exclusion of one
side or the other in this relation we become either monstrous or ridiculous.
Holmes took the view that every opinion tries to win enough adherents to
get itself enacted into law. 66 That view still holds when we say that every
moral view tries to get itself enacted into law. What Holmes and the later
positivists seemed to miss was the law's effort, if you will, to get itself enacted
into morality. No governing class, in or out of democracy, governs for any
length of time without the pretense of governing justly- "under the circums-
tances."67
We are caught, then, in a contradiction: We want law with morality and
morality with law. We want it both ways and cannot have it either. If the
lengthy argument of our philosophical tradition, going back beyond Aris-
totle, has any lesson to teach, it is that we will never settle this question of
the proper relation between law and morality. Those who insist that law has
nothiilg to do with morality give us nothing to go on in criticizing law. Those
who say that law has everything to do with morality - that the only valid law
is a perfectly moral law - give us, in practice, either anarchy or authoritaria-
nism.
Our experience of civil disobedience teaches another lesson. The quest for
morality in law goes by way oflaw-like arguments and pretenses often taken
from outside the law. Thus Corbett, like a latter day Socrates, tells us that
the law of immigration is not what we thought it was, and certainly not what
the government enforces. For him, it is a wholly different law, informed by
a passionate moral vision that only a few of us share. His opponents tell us
that his legal arguments are unpersuasive and his moral vision flawed. The
moralists resort to legalism, and the legalists to moralism.
If irony, as Kierkegaard had it,68 is to say one thing and mean another,
then the moralists constantly say law and mean morality. Lawyers likely do
176

the same thing in reverse. Both instincts are sound. Law does in some
imperfect sense mean morality; and similarly morality means law.

NOTES

1. See I. Bau, This Ground Is Holy: Church Sanctuary and Central American Refugees 159
(1985). Bau provides this translation in discussing a sermon of the Rev. John Davenport
of the New Haven Colony who, in 1660, preached on chapter 16, verse 3, of the Book
of Isaiah. Davenport's congregation was said to include officers of the King sent to
capture the regicides - the men who tried and sentenced Charles I. The New Haven
colonists later prevented the capture of Dixwell, Goffe, and Whalley. See Osterweis,
Three Centuries of New Haven, 1638-1938, at 54-57 (1953). In all likelihood, Davenport
preached from the King James version of the Bible, which reads: "[H]ide the outcasts;
betray not him that wandereth." Isaiah 16:3 (King James).
2. 8 U.S.C. § l324(a)(1982). The Immigration Reform and Control Act of1986, Pub. L. No.
99-603, § 112, 100 Stat. 3359, changed the wording slightly but left the essential pro-
scription intact.
3. See, e.g., Schuck, The Transformation oflmmigration Law, 84 Colum. L. Rev. 1 (1984).
4. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified in scattered sections of
8, 22 U.S.C. (1982)). The most important provisions for our purposes are 8 U.S.C.
§ 1101(a)(42), 1158, 1253(h) (1982). For the international law antecedents of this Act, see
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No.
6577,606 U.N.T.S. 267; Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 137; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War of August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287;
Universal Declaration of Human Rights, G.A. Res. 217A{III}, U.N. Doc. A/810, at 71
(1948).
5. The Refugee Act of 1980 defines "refugee" to include persons having "a well founded fear
of persecution on account of. .. religion." 8 U.S.C. § 1101(aX42X1982). In addition, the
governmental monetary assistance that it authorizes must be available to refugees regard-
less of religion. 8 U.S.C. § l522(aX5X1982).
Outside the refugee context, U.S. immigration laws authorize permanent immigration,
free of numerical quotas, for certain categories of persons labeled "special immigrants."
The list includes "an immigrant who continuously for at least two years immediately
preceding the time of his application for admission to the United States has been and who
seeks to enter the United States solely for the purpose of carrying on the vocation of
minister of a religious denomination, and whose services are needed by such religious
denomination having a bona fide organization in the United States. 8 U.S.C. §
110l(a)(27XCXi) (1982).
6. Niebuhr, Our Immigration Policy, 12 The Messenger 6 (March 19, 1947); J. Higham,
Strangers in the Land 251 (1981); N. Thomas, America's Way Out 238-39 (1931).
7. Corbett, The Covenant as Sanctuary, in Sanctuary: A Resource Guide for Understanding
and Participating in the Central American Refugees' Struggle 183, 189 (G. MacEoin ed.
1985) [hereinafter Resource Guide].
8. Coffin was, until1987, the pastor of the Riverside Church in Manhattan. At the notorious
service of "conscience and acceptance" at the Arlington Street Unitarian Church, in
Boston, on Oct. 16, 1967, Coffin and others (including Dr. Benjamin Spock) accepted the
draft cards of some three hundred young men opposed to American involvement in the
 177

war in Vietnam. Then the university chaplain at Yale, Coffin suggested an analogy
between the medieval tradition of sanctuary and the ceremony in which he took part:
"Now if in the Middle Ages churches could offer sanctuary to the most common criminals,
could they not today do the same for the most conscientious among us? And if in the
Middle Ages they could offer forty days to a man who had committed both a sin and a
crime, could they not today offer an indefinite period to one who had committed no sin?"
See Willigan, Sanctuary: A Communitarian Form of Counter-Culture, 25 Union Sem.
Quarterly Rev. 517, 532 (1970). See also I. Bau, supra note 1, at 161.
9. See Coffin, The Tasks Ahead, in Resource Guide, supra note 7, at 177.
10. See I. Bau, supra note 1, at 36 (describing the views of"most of the sanctuary movement").
11. Corbett, supra note 7, at 189.
12. ld.
13. This language derives from the 1951 Convention Relating to the Status of Refugees, which
was never ratified by the United States. The 1967 Protocol has been ratified, however,
and much of its language was incorporated into American statutory law through the
Refugee Act of 1980. See supra note 4. See generally Vincent-Daviss, Human Rights Law:
A Research Guide to the Literature, Part 2, International Protection of Refugees and
Humanitarian Law, 14 N.Y.U. J. Int'l L. & Pol. 487, 496-99 (1982).
14. Corbett, supra note 7, at 190.
15. ld. at 187.
16. See MacEoin, A Brief History of the Sanctuary Movement, in Resource Guide, supra
note 7, at 14; I. Bau, supra note 1, at 10-12.
17. I paraphrase the account given by MacEoin, supra note 16, at 18.
18. Coffin, supra note 9, at 177.
19. ld.
20. Id. at 178.
21. ld. at 180.
22. Corbett, supra note 7, at 183.
23. Id. at 184.
24. Id. at 194.
25. Id.
26. Id. at 195.
27. "The pressure of natural physical forces sometimes confronts a person in an emergency
with a choice of two evils: either he may violate the literal terms of the criminal law and
thus produce a harmful result, or he may comply with those terms and thus procure a
greater or equal or lesser amount of harm. For reasons of social policy, if the harm which
will result from compliance with the law is greater than that which will result from
violation of it, he is justified in violating it. Under such circumstances he is said to have
the defense of necessity, and he is not guilty of the crime in question - unless, perhaps,
he was at fault in bringing about the emergency situation, in which case he may be guilty
of a crime of which that fault is an element." W. Lafave & A. Scott, Jr., Criminal Law
381 (1972). See also Model Penal Code§ 3.02 (1962); United States v. Holmes, 26 F. Cas.
360 (C.C.E.D.Pa. 1842) (No. 15,383); Regina v. Dudley and Stephens, L.R. 14 Q.B.D. 273,
15 Cox C.C. 624 (1884).
28. Corbett, supra note 7, at 195.
29. ld.
30. ld. at 184.
31. For a good discussion of some of these cases, see I. Bau, supra note 1, at 75-89.
32. See 8 U.S.C. §§ 1101(a)(42), 1158, 1253(h) (1982); Art. I.A(2), Convention Relating to
the Status of Refugees, supra note 4.
178

33. See Office of the United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status, para. 65 (1979).
34. See N.Y. Times Oct. 21, 1985, § I at 10, col. 2; N.Y. Times, Nov. 20, 1985, §I, at 6, col.
1; N.Y. Times, Feb. 2, 1986, §I, at 28, col. 1; N.Y. Times, Apr. 2, 1986, §II, at 8, col.
1; N.Y. Times, May 2, 1986, §I at 19, col. 1; N.Y. Times, May 3, 1986, §I at 8, col. 1.
35. Corbett, supra note 7, at 190.
36. ld.
37. See, among many sources, U.S. Committee for Refugees, The Asylum Challenge to
Western Nations 13 (Dec. 1984).
38. For a particularly revealing glimpse into the effects of foreign policy on asylum decision-
making, see Meissner, Reflections on the Refugee Act of 1980, this volume.
39. Decisions in the pertinent cases decided by the Supreme Court, Immigration and Natura-
lization Service (INS) v. Stevie, 467 U.S. 407 (1984), and INS v. Cardoza-Fonseca, 107
S. Ct. 1207 (1987), settled only the narrow statutory question of the burdens of proof on
the applicant seeking withholding of deportation, on the one hand, and political asylum,
on the other. To obtain the former, under section 243(h) of the Immigration and
Nationality Act, 8 U.S.C. § 1253(h) (1982), an applicant must show "a clear probability
of persecution." To obtain the latter, under section 208 of that Act, 8 U.S.C. § 1158 ( 1982),
an applicant must show "a well-founded fear of persecution." In the class of cases that
concern the sanctuary movement, neither standard is met to the satisfaction of official
decision-makers.
40. See Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex. 1982), appeal dismissed, 692 F.2d 755
(5th Cir. 1982), and Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982). Cf.
Ramirez-Osorio v. INS, 745 F.2d 937 (5th Cir. 1984).
41. See, e.g., Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd as modified, 472 U.S. 846
(1985); Hotel and Restaurant Employees, Local25 v. Smith, 594 F. Supp. 502 (D.D.C.
1984), appeal pending, 808 F.2d 847 (D.C. Cir. 1987).
42. See I. Bau, supra note 1, at 101-102.
43. People v. Woody, 61 Ca1.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
44. 98 u.s. 145 (1878).
45. United States v. Elder, 601 F. Supp. 1574 (S.D. Tex. 1985).
46. See Cleveland v. United States, 329 U.S. 14, (upholding conviction of several Mormons
for practicing polygamy), reh'g denied, 329 U.S. 830 (1946). For additional polygamy
cases see Davis v. Beason, 133 U.S. 333 (1890); Late Corp. of Church of Jesus Christ of
Latter-Day Saints v. United States, 136 U.S. 1 (1890). For the general proposition that
accommodation will not extend to crimes, see United States v. Lee, 455 U.S. 252 (1982).
Cf. People v. Woody, 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).
47. "And the Lord spoke unto Moses, saying, speak unto the children oflsrael, and say unto
them, when ye be come over Jordan into the land of Canaan; then ye shall appoint you
cities to be cities of refuge for you; that the slayer may flee thither, which killeth any person
at unawares. And they shall be unto you cities for refuge from the avenger; that the
manslayer die not, until he stand before the congregation in judgement. ... But if the slayer
shall at any time come without the border of the city of his refuge, whither he was fled;
and the revenger of blood find him without the borders of the city of his refuge, and the
revenger ofblood kill the slayer; he shall not be guilty of blood; because he should have
remained in the city of his refuge until the death of the high priest: but after the death
of the high priest the slayer shall return into the land of his possession. Numbers 35:9-12,
26-28 (King James). See also Deuteronomy 19:1-13; Joshua 20:1-9.
48. Trenholme, The Right of Sanctuary in England, 1 U. Mo. Studies 301-302 (1903).
 179

49. Jesus began his life as a refugee. Soon after his birth his parents fled with him into Egypt
to escape the persecution of King Herod. Matt. 2:13-14. Later in his life he showed mercy
to those who found themselves outcasts of Jewish society. When the Scribes and Phar-
isees brought an adulterous woman before him, Jesus recommended compassion and
mercy by saying, "He that is without sin among you, let him first cast a stone at her." John
8:3-11. When prophesying his return at the end of the world, Jesus promised that
compassionate treatment of the poor and the outcast members of society would be
rewarded. Matt. 25:34-40.
50. Constantine in 313 A.D., by the Edict of Toleration, made Christian churches sanctuaries
for fugitives. Trenholme, supra note 48, at 304. Theodosius the Great, in the Code of 392,
extended sanctuary to the houses of bishops and clergy, to cloisters and cemeteries, but
he refused to allow debtors, Jews, heretics or apostates to take advantage of the privilege.
J. Cox, The Sanctuaries and Sanctuary Seekers of Medieval England 3-4 (1911). Pope
Leo I confirmed the sanctuary legislation of the later empire, requiring that a Church
representative examine and approve all persons seeking sanctuary. Trenholme, supra
note 48, at 305-06.
51. Sanctuary, first introduced in England by the Roman monk, Augustine, in 596, quickly
became an important mitigating force against the Anglo-Saxon tradition of the blood feud.
Under Anglo-Saxon law churches provided seven days of asylum, during which time the
fugitive's family could arrange a monetary settlement with the family of the person killed
or injured. Riggs, Criminal Asylum in Anglo-Saxon Law, 81 U. Fla. Monographs 22, 33-34
n. 42 (1963).
Later in English society, churches also provided sanctuary to those fleeing the prosecu-
tion of the King. A criminal had only 40 days of asylum from the King's justice. At the
end of this time he could either turn himself over to the King's courts, or abjure the realm,
forfeit his rights and property, and leave England forever. Trenholme, supra note 48, at
24.
52. By the late fifteenth century, the privilege of sanctuary was more and more decried for
its abuses. Sanctuary was used to avoid debt, and abjuration became so frequent that
Henry VIII, to deter the practice, required the branding of the thumbs of all those who
chose to abjure the realm. Trenholme, supra note 48, at 29. Later, he required that
abjurers remain as lifetime prisoners in sanctuary. Cox, supra note 50, at 321. After Henry
broke with Rome in 1534, Parliament abolished chartered sanctuaries completely, and
limited the number of crimes for which the privilege was available. Id. at 324. Under James
I sanctuary in England was abolished altogether. Cox, supra note 50, at 329. On all of
this, the best source is Carro, The Resurgence of an Age-Old Right, or a Dangerous
Misinterpretation of an Abandoned Ancient Privilege?, 54 U. Cin. L. Rev. 747 (1986).
53. Osterweis, supra note l, at 54-57.
54. W. Blake, "Milton," in The Poetry and Prose ofWilliam Blake 96 (E.D. Erdman ed. 1968).
55. A. Meiklejohn, Political Freedom 27-28 (1960).
56. Thoreau's notorious refusal to pay the poll tax inspired much more interest a hundred
years after it was done than it did at the time. Gandhi seems to have been responsible
for most of the modern thinking about civil disobedience. See E. Zashin, Civil Disob-
edience and Democracy 149-94 (1972). But Gandhi acted in essentially nondemocratic
contexts.
57. "The methods of civil rights demonstrators became widespread and were popularized as
Gandhian in origin and religious-moralistic in motivation. 'Civil disobedience' became the
cause, cry and tool of the civil rights movement - in effect having a life of its own apart
from the discrimination being protested." S. Washy, A. D'Amato, and R. Metrailer,
Desgregation from Brown to Alexander 265-66 ( 1977). See generally R. Hall, The Morali-
180

ty of Civil Disobedience ( 1971 ). During this period civil rights protesters often engaged
in civil disobedience through sit-ins. See Brown v. Louisiana, 38 U.S. 131 (1966) (black
students' sit-in' in whites-only library); Peterson v. Greenville, 373 U.S. 244 (1963) (sit-in
in restaurant). Segregationists, such as George Wallace, also relied upon the theory of
civil disobedience to avoid compliance with civil rights laws. In an interview with
Newsweek, he said, "If Martin Luther King, in order to test the trespass laws of a state,
can break the law when he is only an individual, why can't the governor... test the laws?''
Newsweek, June 10, 1963, at 30. In a proclamation in opposition to school desegregation,
Wallace, facing the National Guard on the steps of the University Alabama, said, "We
are God-fearing people -not Government-fearing people. We practice today the heritage
bequeathed to us by our founding fathers .... We do hereby denounce and forbid this
illegal and unwarranted action by the Central Government." N.Y. Times, June 12, 1963,
§I at 6.
58. See A. Fortas, Concerning Dissent and Civil Disobedience (1968); H. Zinn, Disobedience
and Democracy; Nine Fallacies on Law and Order (1968).
59. See Bentham, Principles of Legislation, in The Theory of Legislation 1, 65 (Ogden ed.
1931).
60. J. Rawls, A Theory of Justice 49 (1971).
61. See Weinrib, The Case for a Duty to Rescue, 90 Yale LJ. 247 (1980).
62. This may not put it quite right. In many instances the sanctuarians, like Thoreau, honor
the law by disobeying its application or interpretation by wayward officials.
63. Corbett's concern about his own role is one example; the Chicago Religious Task Force's
sensitivity is another. See I. Bau, supra note 1, at 29-37.
64. See, e.g., P. Soper, A Theory of Law (1984).
65. See Aristotle, The Art of Rhetoric 153-54 (1.15) (J.H. Freese trans. & ed. 1967).
66. See Abrams v. United States, 250 U.S. 616,630 (1919) (Holmes, J., dissenting); Gitlow
v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
67. Indeed, the rule seems to be more general still: Very few of us follow any sustained course
of action that we do not think, in some sense, "right."
68. See S. Kierkegaard, The Concept of Irony (L. Capel ed. 1966).
 THE NEW ASYLUM SEEKERS: ADDRESSING THEIR ORIGIN

Jack I. Garvey

I. INTRODUCTION

"The New Asylum Seekers," the title of this volume, provides an artful
characterization of the contemporary refugee problem. It neatly slips by the
conundrums of definition, yet correctly suggests that the problem of the
refugee somehow has broken through the framework of established inter-
national refugee law. This paper will follow where the title leads, and leave
the problems of definition to braver souls, who may address the problemati-
cal distinctions between "economic migrants" and "political refugees," "reg-
ular" and "irregular" movements, and other such frustrations. The objective
here is not to define, but to consider how we may adapt the broader
framework of international refugee law to respond to the new realities of the
problem of the refugee.
In pursuit of this objective, we can use even the most liberal definition of
refugee, such as the definition contained in the Convention of the Organi-
zation of African Unity, which identifies compulsion and the crossing of
borders as minimum elements. 1 The question for the legal order, from this
inclusive view, is simply how can we best respond to the phenomenon of the
new asylum seekers. I will suggest here the outline of an approach that is
different from past and present responses of international refugee law. It is
an approach designed to be viable whatever the distinctions legal systems
may choose to draw between different groups of people crossing borders
under some form of compulsion.

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
 182

II. THE POLITICAL PARTIES TO REFUGEE CRISES

The beginning of this approach is to recognize that international refugee

law is effective only insofar as it comprehends the distinctive political reality
that frames the contemporary problem of the refugee. We begin with a
cliched but unassailable verity about this world of sovereign states - that
international law is respected where it represents mutual political interests
or fear of political sanction. Our objective, therefore, must be to design the
legal regime that best capitalizes on the political interests which cluster
around refugee crises.
Who, then, are the principal parties with the principal political interests,
who can be influenced in relation to contemporary refugee movement? We
can identify four primary actors, or groups of actors, in this enormous
drama: the refugees themselves, their state of origin, the receiving state, and
finally, that loosely described repository of universal value, "the internation-
al community." 2 This list fairly well includes the principal parties, at least
at the point where refugee flow begins and we confront the task of manage-
ment.
Consider then which of the principal political actors have been the sub-
jects of international refugee law. Strikingly, this body of law concerns,
almost exclusively, the refugee in relation to the states of asylum and resettle-
ment. International refugee law, from its foundations articulated after the
Second World War to the present day, has not changed this focus. The
constitutional document of international refugee law, the 1951 Convention
Relating to the Status of Refugees, 3 formulated in the post-World-War-II era
in response to the Nazi persecutions, naturally focused on protection of the
victims of persecution. The effort to manage the refugee flow generated by
the War involved the refugees themselves, potential receiving states, and the
international community reflecting their interests. Absent was the state of
origin, despite its inclusion on our list of four principal parties. The reason
is clear: the war was fought to destroy the governments of the states of origin.
And in the post-war period, while the refugee problems remained urgent and
the new governments installed with the help of the allies were barely
functioning, there was not much point in insisting on attribution of legal
responsibility to the governments of the states of origin.
The efforts of the international community, accordingly, were directed
exclusively to post-flow protection. And when it came time to draw up legal
instruments, the legal design was framed by this post-war situation. The 1951
Convention Relating to the Status of Refugees is expressed almost entirely
in terms of settlement in the country of refuge, and obligations of the state
of refuge. There is nothing said about voluntary repatriation, today
considered the optimal durable solution, and nothing is said about the
 183

cooperation ofthe state of origin. Even a role for the international communi-
ty was barely expressed, with no substantive provisions articulating duties
of cooperation and burden sharing such as we see in the 1969 Convention
of the Organization of African Unity. Most notably, of the possible subjects
for legal management we have identified, the country of origin was a party
wholly absent from the calculation of political cost and advantage reflected
in the foundational documents.
The next major phase in the development of international refugee law,
accommodating the flow from the communist regimes of Eastern Europe,
simply built on the humanitarian premises of post-war refugee relief. Refugee
law developed to protect refugees and assist in their resettlement. The work
was not directed to develop avenues that depended upon cooperation of the
states of origin, or any other manifestation oflegal responsibility of the states
of origin. These communist states of origin were separated from the inter-
national community they burdened, and this same iron curtain cast its
shadow over any possibilities of cooperation or reciprocal obligation.
Though international refugee law has not altered in its fundamental struc-
ture to the present day, today the respective political postures of the parties
in relation to refugee crises have changed dramatically. In particular, the
relation of countries of origin to the political dynamics of refugee crises has
changed.
Consider major refugee movements of recent times, for instance, the
Cuban, Vietnamese, Ugandan or Salvadoran flows. The governments of the
countries of origin have been states that participate actively in the inter-
national communities affected by the flows they generate. And at the practi-
callevel of resolution, only through the development of cooperative proce-
dures involving these governments have particular crises finally been render-
ed manageable- as in the case of the Vietnamese boat people, refugees from
Cuba in the 1960s, and Ugandan Asians. It is a safe prediction that the same
will be true concerning resolution of the principal contemporary refugee
crises. It is clear, for example, that any resolution of the Afghan refugee crisis
will require concurrence of the government of Afghanistan as instructed by
the Soviet Union. And note that repatriation, today generally acknowledged
to be the best of the three so-called "durable solutions" (asylum, resettlement
or repatriation), is the solution most dependent on the cooperation of the
state of origin.
This indicates another contemporary political reality, one which establish-
ed international refugee law fails to accommodate. Repatriation has become
increasingly attractive as a durable solution not only on its own humanitar-
ian merits, but for its political merit relative to the other durable solutions,
permanent asylum or resettlement. Asylum and resettlement, in contrast to
repatriation, depend on the generosity of receiving states. But perhaps the
184

most distinctive feature of the contemporary problem of the refugee is the

ever-increasing reluctance of potential asylum and resettlement states to
undertake the burdens that humanitarian considerations alone formerly
supported. The United Nations High Commissioner and others charged
with international responsibility for refugees have repeatedly identified this
reluctance of receiving states as the most distressing aspect of the contempo-
rary refugee scene.4
At least two reasons help explain the change in the posture of the receiving
states. First, and most obvious, are the tremendous social, economic and
political burdens and dislocations characteristically involved in receiving
large numbers of refugees. But this has almost always been true of refugee
movement, so we must look further. And when we do, we find a second,
related reason. It is more troubling, and it may negate appeals to humanitar-
ianism and sacrifice that otherwise could facilitate acceptance of the bur-
dens. That second reason is the perception, based in fact, that major refugee
flows in recent years have been encouraged or even instigated by govern-
ments of states of origin as premeditated and malicious acts of deliberate
policy. This was certainly the view of the Cuban and Vietnamese flows, flows
characterized in Western media and political debate in military terms, as
"bullets and bombs" aimed at the receiving states. 5
Thus not only the economic and social burden of massive refugee flow has
diminished the availability of asylum and resettlement as durable solutions
(although the burden itself is often sufficient to lead to exclusion). Of at least
equal significance, refugee flow today provides a central flash-point of ide-
ological and political tensions. It reflects as well the division between the rich
and poor nations of this world, a division embodied in the debate about
"political" versus "economic" refugees.
The failure of international refugee law to articulate responsibility of the
state of origin renders the legal regime unresponsive to these political realities
- but not simply unresponsive. It also renders the legal regime counterpro-
ductive, because states of potential asylum or resettlement react negatively
to what they regard as a political strategy of an adversary. Their turning
inward makes a further point about the failure of the present legal regime.
Being a disaster response regime focused almost exclusively on post-flow
relief and humanitarian protection, the current framework underwrites mass
movement, thereby facilitating its occurrence.
Attention to the state of origin is long overdue. The present legal characte-
rization of the drama of the refugee leaves out a principal player, indeed, the
principal player. This absence, while most significant today, has long had an
impact on the efficacy of international refugee law. Even back at the begin-
ning of the established legal order, many nations who refused to sign the 1951
Refugee Convention stated as their reason that the Convention transferred
 185

responsibility from the country of origin to countries of resettlement. 6 In

today' s context of growing reluctance on the part of receiving states, address-
ing the state of origin has become necessary not only to secure the latter's
involvement and responsibility, but also to secure essential cooperation of
the former towards constructive resolution of refugee crises.

III. LEGAL RESPONSIBILITY OF THE STATE OF ORIGIN

A. Inadequate approaches in the right direction (of "root causes" and human
rights)
It is not surprising, therefore, to find that the international community, in
struggling to contend with the present problem, has made some movement
in the direction of the state of origin. The most significant such steps have
been the initiatives of Canada in the United Nations Commission on Human
Rights 7 and the initiative launched by the Federal Republic of Germany in
the General Assembly8 in 1980 and 1981. These two efforts, later essentially
merged, have resulted in a number of General Assembly Resolutions and
United Nations reports concerning (in a phrase now sufficiently repeated
and formalized to have become a term of art) "international cooperation to
avert new flows of refugees." 9 Another related step was the establishment,
by resolution of the General Assembly, of a "Group of Governmental
Experts on International Cooperation to Avert New Flows of Refugees." 10
The most interesting substantive products of this activity have been the
proposal of specific "guidelines" and "practical preventive measures" by the
Federal Republic of Germany, 11 and the interim statements and final report
of the Group of Governmental Experts. 12 However, while these efforts move
in the direction of the state of origin, they combine and confuse different
approaches, both progressive and retrogressive. This problem is best illus-
trated by considering a couple of characteristic examples of these new
formulations.
Guideline 7 as proposed by the Federal Republic of Germany states:

The principle that no state shall through administrative measures de-

prive elements of its populations of the minimum political, economic,
social and cultural requirements for their existence, thereby compelling
them to leave the State and imposing burdens on other states. 13

Similarly, guideline 8 states:

186

The principle that no State shall take administrative measures discrimi-

nating against elements of its population on account of nationality,
ethnic origin, race, religion or language, thereby compelling them to
leave the State and imposing burdens on other States. 14

Embodied here are two distinct approaches, an emphasis on the principles

of established human rights law, and the attempt to address so-called "root
causes" of refugee flow. Both approaches concern the internal situation of
the state of origin - and therein lies the problem. Both approaches, by
fastening on the internal situation of the state of origin, irritate the political
interests of that state.
Certainly, appeals to human rights principles can be critical in generating
concern and political pressure in the international community. This was true,
for example, of the international effort to save the boat people. 15 But vis-a-vis
the state of origin, condemnation based on human rights principles tends
also to produce recrimination and insistence that sovereignty is being
offended.
The approach to the state of origin that purports to examine the "root
causes" of refugee flow is more seriously flawed. Even if we could cogently
identify and isolate "root causes" (despite our limited access to data that
may be closely guarded by the sovereign state of origin), what could we do
with them? There is no mystery about what are root causes. Typically "root
causes" include all the critical social, economic and political problems
endemic to the state of origin. These are problems all too overwhelming and
intractable to be solved as preconditions to resolving refugee crises, with
their characteristic immediacy.
We can of course discuss the importance of well-focused aid programs to
alleviate "root causes." But the question of aid again shifts the focus to the
obligations, or at least the strategies, of receiving states. Moreover, the
distance between resolving an immediate refugee crisis and orchestrating aid
sufficient to alter basic conditions and motivations in the state of origin
remains great.
Finally to be noted is that the "root cause" approach always falls back
on the broader endeavor of the international community to pursue inter-
national peace and security. Having identified "root causes," eradication of
such causes always is tied to regional, and international, political change.
The natural tendency when we concentrate on "root causes" is to perceive
the refugee problem as a mere symptom, to be treated superficially pending
fundamental political change. The policy conclusion that follows is this: real
cure must wait. The Palestinian refugee problem provides all too tragic an
example of this "root cause" mentality. Creative and hopeful proposals to
improve the lot of these refugees have always died aborning because of the
 187

prevailing view that even minimal improvement must depend on general

political settlement in the Middle East. 16
That human rights law and examination of "root causes" inevitably rile
the national sensitivities of the state of origin is, in fact, acknowledged by
advocates of the "root cause" and human rights approaches. They find
themselves conceding great deference to national sovereignty. Recent devel-
opments of principles of responsibility of the state of origin, for example,
reiterate as a cardinal principle the duty of "full observance of the principle
of non-intervention in the internal affairs of sovereign states." 17 However
politic such declarations may be, they do not eliminate the severe tension
between examination of root causes or human rights in the state of origin
and the dictates of the principle of non-intervention. Actual deference to
sovereignty, of course, would effectively negate what these approaches are
supposed to achieve.
Nevertheless, the new initiatives remain remarkable for their pronounced
reference to the legal obligation of the state of origin to avoid new flows of
refugees, because those flows impose burdens on other states. They also
represent a related and more fundamental shift from exclusive reliance on
principles of humanitarian law to inter-state responsibility. In short, they
transfer the emphasis from humanitarian protection to legal obligations of
one state not to harm other states by imposing the burdens of unmanaged
refugee flow.
This shift has long been reflected in the practical administration of inter-
national refugee relief. Ostensibly, the Office of the United Nations High
Commissioner for Refugees is empowered to deal exclusively with the huma-
nitarian aspects of refugee flow, and is mandated to avoid the political. 18 The
reality, as anyone associated with the Office knows, is that politics and
political acumen are crucial. Success requires significant restraint in
broaching human rights claims or root causes. It is long overdue that the
legal regime reflect this same pragmatism.

B. Foundations
Legal responsibility of the state of origin, while not articulated as such in
the current corpus of international refugee law, is firmly supported by estab-
lished principles of international law. There is ample authority for the propo-
sition that a state is obligated to avoid the generation across its borders of
damage to other states. We see the relevant principle reflected in many
treaties and resolutions of international organizations. 19 It has also been
articulated in international arbitrations and adjudications, principally The
Trail Smelter Arbitration. There the tribunal, in finding transnational pol-
lution to be in breach of international law, declared that "no state has the
188

right to use or permit the use of its territory in such a manner as to cause
injury ... in or to the territory of another or the properties or persons
therein ... " 20 The analogy to pollution is, of course, offensive and awkward,
and takes no account of the right to seek asylum. But the right to seek asylum
is not inconsistent with placing responsibility upon the state of origin.
Indeed, that responsibility has been articulated explicitly in reference to
refugee flow. For instance, Jennings, writing as early as 1939, stated that "the
wilful flooding of other states with refugees constitutes not merely an inequit-
able act, but an actual illegality, and a fortiori where the refugees are compell-
ed to enter the country of refuge in a destitute condition."2 .1
It is in fact obvious -undeniable- that refugee flow imposes severe social
and economic burdens on receiving states. Failing to pursue the legal impli-
cations of this, while insisting, as we must, on the principle of nonrefoulement,
ultimately undermines nonrefoulement. Potential receiving states see
themselves being asked for one-sided sacrifices, while a state that allows or
actually induces the flow remains wholly unburdened.
In calling for development of the legal responsibility of the state of origin,
I am not suggesting there is basis for a prohibition of any particular form of
large-scale movement, even mass expulsion. Like it or not, mass movement,
including expulsion, is a fact of international life, legitimized by international
practice. For example, the major deportations after the Second World War
occurred by international agreement, pursuant to the Potsdam Protocol. 22
One is hard pressed to argue illegality of mass expulsion even though
prohibitions of expulsions have been included in some human rights instru-
ments.23
The productive question, however, is not whether there is a right to expel,
but what are the responsibilities of the state of origin with respect to any mass
movement from its territory, and how might that responsibility be imple-
mented. We must draw a distinction between any apparent lawfulness of
expulsion or other outflow as an aspect of the sovereignty of the state of
origin, and the lawfulness of its implementation or use with respect to other
states. That is, even if there is a right of denationalization or expulsion, that
right may be subject to procedural and substantive limitations where it
impinges on the interests of receiving states and the international communi-
ty.

C. The beginnings of state responsibility - some guidelines for guidelines

The means for articulating responsibilities of the state of origin can be as
varied as the numerous vehicles by which inteniationallaw is formulated.
For example, efforts can move along lines similar to the proposal of the
Federal Republic of Germany for Guidelines and Practical Measures. 24
 189

More ambitious would be the drafting of an international convention con-

cerning legal responsibility of the state of origin. This is not the place to
engage in such elaboration and consensus gathering. But the immediate
perspective gained by focusing on the role of the state of origin is useful
beyond simply demonstrating how misguided are some of the new guidelines
that have been formally proposed. The same focus immediately points in a
constructive direction - to what I suggest as "guidelines for guidelines."
The first point remains that we should avoid the "root cause" approach,
as well as complete dependence on human rights principles, as the means
to address the state of origin.
Second, the thrust of the substantive principles should be cooperative,
rather than prohibitive. How do we seize the potential that now exists
relative to the state of origin? Prohibition will not succeed when the extreme-
political interests and social conditions that induce mass flow are at work.
But advantage may still be gained by recognizing and articulating the legal
responsibility of the state of origin to which such movement gives rise. The
legal task is to mitigate the asperities and chaos of the movement by engaging
state-of-origin responsibility where it is not now commonly engaged. What
can be established are obligations to cooperate in the prevention of flow,
obligations to adhere to procedures for the amelioration and management
offlow, and obligations to help secure voluntary repatriation. States of origin
may respect procedural and substantive limitations they see as tolerable and
advantageous in order to reduce the negative political fallout that results
from outflow.
An example of such specific obligation would be a requirement of earliest
notice of impending refugee flow. The earlier the warning, the better the
chances for mitigation. We can begin by articulating legal duties to provide
early warning. These duties can be described as duties of coordination and
cooperation owed to an international apparatus charged with an early warn-
ing function. 25 That function could be triggered first by a state of origin, or
by a receiving state in cases where the political realities discourage early
warning by the state of origin.
The same sort of elaboration can be achieved concerning the next part of
the task - defining a framework for orderly departure and transit. Much of
this work has already been done, though on an ad hoc basis. The crisis of
the Vietnamese boat people involved precisely such development, through
formulation of arrangements for orderly departure. In 1979, the Office of the
United Nations High Commissioner for Refugees concluded with the gov-
ernment of Vietnam a Memorandum of Understanding on the Orderly
Departure of Persons from Vietnam, 26 in connection with a conference in
Geneva of concerned governments. The conference resulted in a number of
190

countries making pledges of asylum spaces, thereby undertaking the

"equitable burden sharing" that ended the crisis.
In the post-flow context, there is another guideline for guidelines that
would serve us well- a principle that assistance should always be secondary
to solution. It is imperative to minimize the institutionalization of assistance
and dependency of refugees that now often occurs at the expense of durable
solution, epitomized by the Palestinian refugee camps. The Palestinian
situation, of course, did not present the same options of cooperation with
the state of origin nor possibilities of repatriation that usually do exist in
massive flow contexts. But even as to the Palestinian problem, opportunities
for ameliorating the refugee problem could have been seized had policy-
makers simply considered frameworks of obligation that were achievable
without complete resolution of the greater Middle East conflict. 27
A fourth guideline for guidelines is that the institutionalization of engage-
ment of the state of origin must be at least as important as the development
of substantive principles of responsibility. We must aim to achieve an insti-
tutional apparatus adequate to the variety of critical functions that involve
the state of origin. First, as already mentioned, comes the function of early
warning and monitoring. Second is the need to provide management and aid
functions in relation to the state of origin. Third, the institutional apparatus
must be designed to stimulate the political processes that will secure the
cooperation of the state of origin, and to orchestrate any appropriate quid
pro quo of assistance from the international community that may be needed
to promote resolutions such as voluntary repatriation. The "good offices"
activity of the Secretary General is one example. But we need a similar
institutional capacity specifically and permanently geared to the problem of
the refugee. 28
In the arena of procedures and institutions, one can discern also the
unproductive tendency to emphasize unduly the matters of root causes and
human rights, hindering engagement of responsibility of the state of origin.
For example, the important study commissioned by the Secretary General,
concerning massive exodus, suggested the creation of a United Nations
Special Representative for Humanitarian Questions to provide the key
functioning of monitoring and forewarning, and contacting the parties con-
cerned to seek solutions. 29 These functions are altogether appropriate, but
the emphasis may be self-defeating.
Finally, the concept of legal responsibility of the state of origin for the
burden imposed on other states can be elaborated as substantive principles
and procedures for compensation. For instance, proceedings before the
International Court of Justice or other international claims fora seem entirely
appropriate as recourse for states affected by refugee flow. Moreover, to the
 191

extent that substantive developments improve the prospects of procedural

recourse against the state of origin, deterrence of mass movement is en-
hanced.30

CONCLUSION

If we are not at the threshold of a major elaboration of the legal responsi-

bilities of the state of origin, we ought to be. The traditional framework of
international refugee law has become not just awkward in comprehending
the problem of the new asylum seekers. It simply does not suit our era. On
the one hand, we now encounter increasing resistance from potential asylum
or resettlement states. On the other, we have states of origin deeply interested
and involved in the international community, but operating to produce
refugee flow without responsibility. Such states can be influenced more
effectively. A new design that insists on their responsibility can prevent and
resolve refugee crises to a degree impossible under a legal order that was
formulated in reference to states of origin impervious to the influence of
receiving states.
The need and the potential means have come together to make this a time
of opportunity for international refugee law. With commitment enlightened
by political realism, we can seize the moment to create law of lasting value,
law that actually can be useful - today - to reduce human suffering.

NOTES

I. The term 'refugee' shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part
or the whole of his country of origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his country of origin
or nationality.
Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa, art. I, para. 2, September 10, 1969, 1001 U.N.T.S. 45, reprinted in
Office of the United Nations High Commissioner for Refugees, Collection oflnternational
Instruments Concerning Refugees 193 (2d ~d. 1979).
2. The "international community" may be involved on a regional or universal basis. But as
to either involvement, it is a principal party. When people other than tourists move
between states on a massive scale, the social, economic and political impacts extend all
too obviously beyond the specific states directly involved.
3. 19 U.S.T. 6223, T.I.A.S. No. 6577, 189 U.N.T.S. 137.
4. See, e.g., Report of the United Nations High Commissioner for Refugees, 38 U.N. GAOR
Supp. (No. 12A) at 7-8, U.N. Doc. A/38/12/Add.1 (1983).
192

5. See, e.g., New Straits Times, June 1979, quoted in Wain, The Indochina Refugee Crisis,
58 Foreign Aff. 160, 168 (1979); Scanlan & Loescher, U.S. Foreign Policy, 1959-80:
Impact on Refugee Flow from Cuba, 467 Annals 116, 137 (1983).
6. See G.J.L. Coles, Pre-Flow Aspects ofthe Refugee Phenomenon 49 (unpublished manu-
script prepared for the International Institute of Humanitarian Law, San Remo, Italy,
1981 ).
7. Concerning the initiative, see Martin, Large-scale Migrations of Asylum Seekers, 76 Am.
J. Int'l L. 598 (1982).
8. Statement of Minister of Foreign Affairs Genscher, 35 U.N. GAOR (8th Plen. mtg.) at
119, U.N. Doc. A/35/PV.8 (1980).
9. G.A. Res. 35/124,35 U.N. GAOR Supp. (No. 48) at 93, U.N. Doc. A/35/48 (1981); G.A.
Res. 36/148, 36 U.N. GAOR Supp. (No. 51) at 91, U.N. Doc. A/36/51 (1982).
10. G.A. Res. 36/148, 36 U.N. GAOR Supp. (No. 51), at 91, U.N. Doc. A/36/51 (1982).
11. International Cooperation To Avert New Flows of Refugees: Report of the Secretary
General, 36 U.N. GAOR (Agenda Item 66) at 18-26, U.N. Doc. A/36/582 (1981).
12. A Programme of Work was adopted by the Group of Governmental Experts at its second
session, in 1983. 38 U.N. GAOR Annex (Agenda Item 74) at 5, U.N. Doc. A/38/273
( 1983 ). Significant "Substantive Consideration of the Programme of Work" resulting from
the Fifth Session can be found in U.N. Doc. A/AC.213/1984jWP.3/Rev.2, and especially
Part V of U.N. Doc. A/AC.213/1983/WP.5, previously adopted as of 14 June 1985, which
states "Conclusions and Recommendations." The final Report appears in International
Co-Operation to Avert New Flows of Refugees (Note by the Secretary General transmit-
ting the Group's final report), U.N. Doc. A/41/324 (1986).
13. International Cooperation, supra note 11, at 24.
14. Id. The Report of the Group of Governmental Experts simply reiterates similar propo-
sitions. International Co-Operation to Avert New Flows of Refugees (Note by the
Secretary General transmitting the Group's final report), Recommendations, paras. 66( c)
and 66(d), U.N. Doc. A/41/324 (1986).
15. See generally Kumin, Orderly Departure from VietNam, 6 Refugees 5 (June 1982); Wain,
The Indochina Refugee Crisis, 58 Foreign Aff. 160 (1979); Johnson, Refugees, Departees
and Illegal Migrants, 9 Sydney L. Rev. 11, 13-14 (1980); Suhrke, Indochinese Refugees:
The Law and Politics of the First Asylum, 467 Annals 102 (1983).
16. See Garvey, Rethinking Refugee Aid: A Path to Middle East Peace, 20 Texas Int'l L.J.
247 (1985).
17. This is characteristic, for instance, of the General Assembly resolutions concerning
"International Co-operation to Avert New Flows of Refugees." See, e.g., G.A. Res.
36/148, 36 U.N. GAOR Supp. (No. 51) at 91, U.N. Doc. A/36/51 (1982).
18. Weis, The Office of the United Nations High Commissioner for Refugees and Human
Rights, 1 Hum. Rts. J. 243 (1968).
19. For example, the principle is embodied in the treaty on activity in outer space, concerning
objects launched by one state which fall on another. Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies, Jan. 27, 1967, art. 7, 18 U.S.T. 2410, 2415, T.I.A.S. No. 6347 at
6, 610 U.N.T.S. 205,209. Another example, the Stockholm Declaration, provides: "States
have ... the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction." Report of the UN Conference on the Human Environment,
Principle 21, U.N. Doc. A/CONF.48/14/Rev. 2 and Corr. 1 (1972). Other prominent
articulation of the principle has occurred concerning pollution of the high seas, as for
instance, in the Law of the Sea Convention. U.N. Doc. A/CONF.62/122 (1982), reprinted
 193

in21 I.L.M. 1261 (1982). See, also G. Von Glahn, Law Among Nations 175 (4th ed. 1981).
Note, New Perspectives on International Environmental Law, 82 Yale L.J. 1659, 1665-66
(1973); Douglas, Environmental Problems of the Oceans: The Need for International
Controls, 1 Envtl. L. J. 149, 154 (1971).
20. The Trail Smelter Arbitration (U.S. v. Can.), Trail Smelter Arbitral Tribunal, 3 R. Int'l
Arb. Awards 1938, 1965 (1941).
21. Jennings, Some International Law Aspects of the Refugee Question, 20 Brit. Y.B. Int'l
L. 98, 111 (1939).
22. Potsdam Agreement, Aug. 2, 1945, 59 Stat. 1823, E.A.S. No. 498; see also I. Claude,
National Minorities, An International Problem 116-17 (1955).
23. It is not surprising, therefore, that as a concession to this reality, commentators, while
denying the right of States to expel their nationals, concede the right of denationalization.
Thus Weis writes:
The right of States to withdraw their nationality from individuals is, on the whole, not
limited by international law. Deprivation of nationality, even mass denationalisation,
is not prohibited by international law, with the possible exception of the prohibition
of discriminatory denationalisation.
P. Weis, Nationality and Statelessness in International Law 242 (2nd ed. 1979). See also
D.P. O'Connell, International Law 683-84 (2d ed. 1970). As a practical matter, of course,
denationalization affords a primary means of rendering an individual expelled, and these
acts are, in many contexts, inseparable.
The 1948 Universal Declaration ofHuman Rights provides in Article 9 that no one shall
be subjected to arbitrary exile. Article 13(2) adds that everyone has the right to leave any
country, including his own, and to return to his country. Further, Article 15 provides that
everyone has the right to a nationality and that no one shall be arbitrarily deprived of his
nationality. G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948).
Article 12(4) of the 1966 International Covenant on Civil and Political Rights states
that "(n]o one shall be arbitrarily deprived of the right to enter his own country." G.A.
Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, 54, U.N. Doc. A/6316 (1966). The
1963 Fourth Protocol to the 1950 European Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, Europ.T.S.S drops
the qualification of "arbitrary" to the prohibition of exile. Article 3 provides that no one
shall be expelled, by means either of an individual or collective measure, from the territory
of the State of which he is a national; and no one shall be deprived of the right to enter
the territory of the State of which he is a national. Protocol No. 4 to the European
Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 16,
1963, Europ.T.S.46, 7 I.L.M. 978. Derogation from Article 3 is permitted under Article
15 of the Convention only in time of war or other public emergency threatening the life
of the nation.
Derogation is also permitted in broadly similar circumstances in the case of the
American Convention (Article 27). American Convention on Human Rights, Nov. 22,
1969, O.A.S.T.S. No. 36, at 1, O.A.D. Off. Rec. OEA/Ser.LfV.II 23, doc. 21, rev. 6 (1979).
Article 22(5) of that Convention provides that no one may be expelled from the territory
of the State of which he is a national or be deprived of the right to enter it. Article VIII
of the 1948 American Declaration of the Rights and Duties of Man provides that every
person has the right to fix his residence within the territory of the State of which he is
a national, to move about freely within such territory, and not to leave except by his own
will. O.A.S. Res. XXX (1948), O.A.S. Off. Rec. OEA/Ser.L/V/1.4 Rev. (1965).
24. See note 11 supra.
194

25. See generally Gordenker, Early Warning, 20 lnt'l Migration Rev. 170 (1986).
26. U.N. Doc. A/C.3/34/7 (1979). See generally Kumin, Orderly Departure from VietNam,
6 Refugees 5 (June 1982).
27. See Garvey, supra note 16, at 262.
28. Recent UNHCR Executive Committee Conclusions on the subject of voluntary repa-
triation have suggested, along these lines, elaboration of the institutional capacities of the
Office of the UNHCR, as follows:
(i) When, in the opinion of the High Commissioner, a serious problem exists in the
promotion of voluntary repatriation of a particular refugee group, he may consider for
that particular problem the establishment of an informal ad hoc consultative group
which would be appointed by him in consultation with the Chairman and the other
members of the Bureau of his Executive Committee. Such a group may, if necessary,
include States which are not members of the Executive Committee and should in
principle include the countries directly concerned. The High Commissioner may also
consider invoking the assistance of other competent United Nations organs;

U) The practice of establishing tripartite commissions is well adapted to facilitate

voluntary repatriation. The tripartite commission, which should consist of the countries
of origin and of asylum and UNHCR, could concern itself with both the joint planning
and the implementation of a repatriation programme. It is also an effective means of
securing consultations between the main parties concerned on any problems that might
subsequently arise ...
Voluntary Repatriation, Conclusion No. 40 (XXXVI), 36 Executive Comm. of the High
Commissioner's Programme, 40 U.N. GAOR Supp. (No. 12A), at 33, U.N. Doc.
A/40/12/Add.1 (1986).
29. Study on Human Rights and Massive Exoduses: Report by Sadruddin Aga Khan, Special
Rapporteur, Commission on Human Rights, Recommendations, at ii, 38 U.N. ESCOR,
U.N. Doc. E/CN.4/1503 (1981).
30. It must be recognized that in some situations of refugee flow, particularly the flow that
is all too common from poor third world countries, actual compensation will not be
practicable. But even in these contexts, the symbolism of financial responsibility may
provide a modicum of deterrence. See generally Lee, The Right to Compensation: Re-
fugees and Countries of Asylum, 80 Am. J. lnt'l. L. 532 (1986); Hofmann, Refugee
Generating Policies and the Law of State Responsibility, 45 Zeitschrift flir ausllindisches
6ffentliches Recht und VOlkerrecht 694 (1985).
 APPENDIX

Selected Conclusions on the International Protection of

Refugees

Adopted by the Executive Committee of the High

Commissioner's Programme

NO. 15 (XXX) REFUGEES WITHOUT A COUNTRY OF ASYLUM 1

The Executive Committee

Considered that States should be guided by the following considerations:

General principles
(a) States should use their best endeavours to grant asylum to bona fide
asylum-seekers;
(b) Action whereby a refugee is obliged to return or is sent to a country
where he has reason to fear persecution constitutes a grave violation of the
recognized principle of nonrefoulement;
(c) It is the humanitarian obligation of all coastal States to allow vessels
in distress to seek haven in their waters and to grant asylum, or at least
temporary refuge, to persons on board wishing to seek asylum;
(d) Decisions by States with regard to the granting of asylum shall be made
without discrimination as to race, religion, political opinion, nationality or
country of origin;
(e) In the interest of family reunification and for humanitarian reasons,
States should facilitate the admission to their territory of at least the spouse
and minor or dependent children of any person to whom temporary refuge
or durable asylum has been granted;
196

Situations involving a large-scale influx of asylum-seekers

(f) In cases of large-scale influx, persons seeking asylum should always
receive at least temporary refuge. States which because of their geographical
situation, or otherwise, are faced with a large-scale influx should, as necessa-
ry and at the request of the State concerned, receive immediate assistance
from other States in accordance with the principle of equitable burden-shar-
ing. Such States should consult with the Office of the United Nations High
Commissioner for Refugees as soon as possible to ensure that the persons
involved are fully protected and are given emergency assistance, and that
durable solutions are sought;
(g) Other States should take appropriate measures individually, jointly or
through the Office of the United Nations High Commissioner for Refugees
or other international bodies to ensure that the burden of the country offrrst
asylum is equitably shared;

Situations involving individual asylum-seekers

(h) An effort should be made to resolve the problem of identifying the
country responsible for examining a request for asylum by the adoption of
common criteria. In elaborating such criteria the following principles should
be observed:
(i) The criteria should make it possible to identify in a positive manner
the country which is responsible for examining a request for asylum
and to whose authorities the asylum-seeker should have the possibili-
ty of addressing himself;
(ii) The criteria should be of such a character as to avoid possible
disagreement between States as to which of them should be responsi-
ble for examining a request for asylum and should take into account
the duration and nature of any sojourn of the asylum-seeker in other
countries;
(iii) The intentions of the asylum-seeker as regards the country in which
he wishes to request asylum should as far as possible be taken into
account;
(iv) Regard should be had to the concept that asylum should not be
refused solely on the ground that it could be sought from another
State. Where, however, it appears that a person, before requesting
asylum, already has a connexion or close links with another State, he
may, if it appears fair and reasonable, be called upon first to request
asylum from that State;
 197

(v) The establishment of criteria should be accompanied by arrange-

ments for regular consultation between Governments concerned for
dealing with cases for which no solution has been found and for
consultation with the Office of the United Nations High Com-
missioner for Refugees as appropriate;
(vi) Agreements providing for the return by States of persons who have
entered their territory from another contracting State in an unlawful
manner should be applied in respect of asylum-seekers with due
regard to their special situation;
(i) While asylum-seekers may be required to submit their requests for
asylum within a certain time-limit, failure to do so, or the non-fulfilment of
other formal requirements, should not lead to a request for asylum being
excluded from consideration;
G) In line with the recommendation adopted by the Executive Committee
at its twenty-eighth session,2 where an asylum-seeker addresses himself in
the first instance to a frontier authority the latter should not reject his
application without reference to a central authority;
(k) Where a refugee who has already been granted asylum in one country
requests asylum in another country on the ground that he has compelling
reasons for leaving his present country of asylum due to fear of persecution
or because his physical safety or freedom are endangered, the authorities of
the second country should give favourable consideration to his request for
asylum;
(l) States should give favourable consideration to accepting, at the request
of the Office of the United Nations High Commissioner for Refugees, a
limited number of refugees who cannot find asylum in any country;
(m) States should pay particular attention to the need for avoiding si-
tuations in which a refugee loses his right to reside in or to return to his
country of asylum without having acquired the possibility of taking up
residence in a country other than one where he may have reasons to fear
persecution;
(n) In line with the purpose of paragraphs 6 and 11 of the Schedule to the
1951 Convention, States should continue to extend the validity of or to
renew refugee travel documents until the refugee has taken up lawful resi-
dence in the territory of another State. A similar practice should as far as
possible also be applied in respect of refugees holding a travel document
other than that provided for in the 1951 Convention.
198

NO. 22 (XXXII) PROTECfiON OF ASYLUM-SEEKERS IN SITUATIONS OF

LARGE-SCALE INFLUX3

The Executive Committee,

Noting with appreciation the report of the Group of Experts on temporary

refuge in situations of large-scale influx, which met at Geneva from 21 to 24
April1981, adopted the following conclusions in regard to the protection of
asylum-seekers in situations of large-scale influx.

I. General
1. The refugee problem has become particularly acute due to the increasing
number of large-scale influx situations in different areas of the world and
especially in developing countries. The asylum-seekers forming part of these
large-scale influxes include persons who are refugees within the meaning of
the 1951 United Nations Convention and the 1967 Protocol relating to the
Status of Refugees or who, owing to external aggression, occupation, foreign
domination or events seriously disturbing public order in either part or the
whole of their country of origin or nationality are compelled to seek refuge
outside that country.
2. Asylum-seekers forming part of such large-scale influxes are often
confronted with difficulties in finding durable solutions by way of voluntary
repatriation, local settlement or resettlement in a third country. Large-scale
influxes frequently create serious problems for States, with the result that
certain States, although committed to obtaining durable solutions, have only
found it possible to admit asylum-seekers without undertaking at the time
of admission to provide permanent settlement of such persons within their
borders.
3. It is therefore imperative to ensure that asylum-seekers are fully protec-
ted in large-scale influxes to reaffirm the basic minimum standards for their
treatment pending arrangements for a durable solution, and to establish
effective arrangements in the context of international solidarity and burden-
sharing for assisting countries which receive large numbers of asylum-
seekers.
 199

II. Measures of protection

A. Admission and nonrefoulement

1. In situations of large-scale influx, asylum-seekers should be admitted
to the State in which they first seek refuge and if that State is unable to admit
them on a durable basis, it should always admit them at least on a temporary
basis and provide them with protection according to the principles set out
below. They should be admitted without any discrimination as to race,
religion, political opinion, nationality, country of origin or physical incapa-
city.
2. In all cases the fundamental principle of nonrefoulement - including
non-rejection at the frontier - must be scrupulously observed.

B. Treatment of asylum-seekers who have been temporarily admitted to a

country pending arrangements for a durable solution
1. Article 31 of the 1951 United Nations Convention relating to the Status
of Refugees contains provisions regarding the treatment of refugees who
have entered a country without authorization and whose situation in that
country has not yet been regularized. The standards defined in this Article
do not, however, cover all aspects of the treatment of asylum-seekers in
large-scale influx situations.
2. It is therefore essential that asylum-seekers who have been temporarily
admitted pending arrangements for a durable solution should be treated in
accordance with the following minimum basic human standards:
(a) They should not be penalized or exposed to any unfavourable treat-
ment solely on the ground that their presence in the country is considered
unlawful; they should not be subjected to restrictions on their movements
other than those which are necessary in the interest of public health and
public order;
(b) They should enjoy the fundamental civil rights internationally recog-
nized, in particular those set out in the Universal Declaration of Human
Rights;
(c) They should receive all necessary assistance and be provided with the
basic necessities of life including food, shelter and basic sanitary and health
facilities; in this respect the international community should conform with
the principles of international solidarity and burden-sharing;
200

(d) They should be treated as persons whose tragic plight requires special
understanding and sympathy. They should not be subjected to cruel, inhu-
man or degrading treatment;
(e) There should be no discrimination on the grounds of race, religion,
political opinion, nationality, country of origin or physical incapacity;
(f) They are to be considered as persons before the law, enjoying free
access to courts of law and other competent administrative authorities;
(g) The location of asylum-seekers should be determined by their safety
and well-being as well as by the security needs of the receiving State.
Asylum-seekers should, as far as possible, be located at a reasonable dis-
tance from the frontier of their country of origin. They should not become
involved in subversive activities against their country of origin or any other
State;
(h) Family unity should be respected;
(i) All possible assistance should be given for the tracing of relatives;
G) Adequate provision should be made for the protection of minors and
unaccompanied children;
(k) The sending and receiving of mail should be allowed;
(1) Material assistance from friends or relatives should be permitted;
(m) Appropriate arrangements should be made, where possible, for the
registration of births, deaths and marriages ;
(n) They should be granted all the necessary facilities to enable them to
obtain a satisfactory durable solution;
(o) They should be permitted to transfer assets which they have brought
into a territory to the country where the durable solution is obtained; and
(p) All steps should be taken to facilitate voluntary repatriation.

III. Co-operation with the Office of the United Nations High Commissioner
for Refugees
Asylum-seekers shall be entitled to contact the Office of UNHCR.
UNHCR shall be given access to asylum-seekers. UNHCR shall also be
given the possibility of exercising its function of international protection and
shall be allowed to supervise the well-being of persons entering reception or
other refugee centres.
 201

IV. International solidarity, burden-sharing and duties of States

{l} A mass influx may place unduly heavy burdens on certain countries;
a satisfactory solution of a problem international in scope and nature cannot
be achieved without international co-operation. States shall, within the
framework of international solidarity and burden-sharing, take all necessary
measures to assist, at their request, States which have admitted asylum-
seekers in large-scale influx situations.
(2) Such action should be taken bilaterally or multilaterally at the regional
or at the universal levels and in co-operation with UNHCR, as appropriate.
Primary consideration should be given to the possibility of fmding suitable
solutions within the regional context.
(3) Action with a view to burden-sharing should be directed towards
facilitating voluntary repatriation, promoting local settlement in the receiving
country, providing resettlement possibilities in third countries, as appro-
priate.
(4) The measures to be taken within the context of such burden-sharing
arrangements should be adapted to the particular situation. They should
include, as necessary, emergency, financial and technical assistance, assis-
tance in kind and advance pledging of further financial or other assistance
beyond the emergency phase until durable solutions are found, and where
voluntary repatriation or local settlement cannot be envisaged, the provision
for asylum-seekers of resettlement possibilities in a cultural environment
appropriate for their well-being.
(5) Consideration should be given to the strengthening of existing mecha-
nisms and, if appropriate, the setting up of new arrangements, if possible on
a permanent basis, to ensure that the necessary funds and other material and
technical assistance are immediately made available.
(6) In a spirit of international solidarity, Governments should also seek
to ensure that the causes leading to large-scale influxes of asylum-seekers are
as far as possible removed and, where such influxes have occurred, that
conditions favourable to voluntary repatriation are established.

NO. 30 (XXXIV) THE PROBLEM OF MANIFESTLY UNFOUNDED OR

ABUSIVE APPLICATIONS FOR REFUGEE STATUS OR ASYLUM4

The Executive Committee:

202

(a) Recalled conclusion No. 8 (XXVIII) adopted at its twenty-eighth

session on the determination of refugee status and conclusion No. 15 (XXX)
adopted at its thirtieth session concerning refugees without an asylum
country;
(b) Recalled conclusion No. 28 (XXXIII) adopted at its thirty-third
session, in which the need for measures to meet the problem of manifestly
unfounded or abusive applications for refugee status was recognized;
(c) Noted that applications for refugee status by persons who clearly have
no valid claim to be considered refugees under the relevant criteria constitute
a serious problem in a number of States parties to the 1951 Convention and
the 1967 Protocol. Such applications are burdensome to the affected coun-
tries and detrimental to the interests of those applicants who have good
grounds for requesting recognition as refugees;
(d) Considered that national procedures for the determination of refugee
status may usefully include special provision for dealing in ~ expeditious
manner with applications which are considered to be so obviously without
foundation as not to merit full examination at every level of the procedure.
Such applications have been termed either "clearly abusive" or "manifestly
unfounded" and are to be defined as those which are clearly fraudulent or
not related to the criteria for the granting of refugee status laid down in the
1951 United Nations Convention relating to the Status of Refugees nor to
any other criteria justifying the granting of asylum;
(e) Recognized the substantive character of a decision that an application
for refugee status is manifestly unfounded or abusive, the grave consequen-
ces of an erroneous determination for the applicant and the resulting need
for such a decision to be accompanied by appropriate procedural guarantees
and therefore recommended that:
(i) As in the case of all requests for the determination of refugee status
or the granting of asylum, the applicant should be given a complete
personal interview by a fully qualified official and, whenever possible,
by an official of the authority competent to determine refugee status;
(ii) The manifestly unfounded or abusive character of an application
should be established by the authority normally competent to deter-
mine refugee status;
(iii) An unsuccessful applicant should be enabled to have a negative
decision reviewed before rejection at the frontier or forcible removal
from the territory. Where arrangements for such a review do not exist,
Governments should give favourable consideration to their establish-
 203

ment. This review possibility can be more simplified than that availa-
ble in the case of rejected applications which are not considered
manifestly unfounded or abusive.
(f) Recognized that while measures to deal with manifestly unfounded or
abusive applications may not resolve the wider problem of large numbers of
applications for refugee status, both problems can be mitigated by overall
arrangements for speeding up refugee status determination procedures, for
example by:
(i) Allocating sufficient personnel and resources to refugee status deter-
mination bodies so as to enable them to accomplish their task expedi-
tiously, and
(ii) The introduction of measures that would reduce the time required for
the completion of the appeals process.

NO. 40 (XXXVI) VOLUNTARY REPATRIATION 5

The Executive Committee,

Reaffirming the significance of its 1980 conclusion on voluntary repa-

triation as reflecting basic principles of international law and practice, adopt-
ed the following further conclusions on this matter:
(a) The basic rights of persons to return voluntarily to the country of origin
is reaffirmed and it is urged that international co-operation be aimed at
achieving this solution and should be further developed;
(b) The repatriation of refugees should only take place at their freely
expressed wish; the voluntary and individual character of repatriation of
refugees and the need for it to be carried out under conditions of absolute
safety, preferably to the place of residence of the refugee in his country of
origin, should always be respected;
(c) The aspect of causes is critical to the issue of solution and international
efforts should also be directed to the removal of the causes of refugee
movements. Further attention should be given to the causes and prevention
of such movements, including the co-ordination of efforts currently being
pursued by the international community and, in particular, within the United
Nations. An essential condition for the prevention of refugee flows is suf-
ficient political will by the States directly concerned to address the causes
which are at the origin of refugee movements;
204

(d) The responsibilities of States towards their nationals and the obli-
gations of other States to promote voluntary repatriation must be upheld by
the international community. International action in favour· of voluntary
repatriation, whether at the universal or regional level, should receive the full
support and co-operation of all States directly concerned. Promotion of
voluntary repatriation as a solution to refugee problems similarly requires the
political will of States directly concerned to create conditions conducive to
this solution. This is the primary responsibility of States;
(e) The existing mandate of the High Commissioner is sufficient to allow
him to promote voluntary repatriation by taking initiatives to this end,
promoting dialogue between all the main parties, facilitating communication
between them, and acting as an intermediary or channel of communication.
It is important that he establish, whenever possible, contact with all the main
parties and acquaint himself with their points of view. From the outset of
a refugee situation, the High Commissioner should at all times keep the
possibility of voluntary repatriation for all or for part of a group under active
review and the High Cdmmissioner, whenever he deems that the prevailing
circumstances are appropriate, should actively pursue the promotion of this
solution;
(f) The humanitarian concerns of the High Commissioner should be
recognized and respected by all parties and he should receive full support
in his efforts to carry out his humanitarian mandate in providing internation-
al protection to refugees and in seeking a solution to refugee problems;
(g) On all occasions the High Commissioner should be fully involved from
the outset in assessing the feasibility and, thereafter, in both the planning and
implementation stages of repatriation;
(h) The importance of spontaneous return to the country of origin is
recognized and it is considered that action to promote organized voluntary
repatriation should not create obstacles to the spontaneous return of re-
fugees. Interested States should make all efforts, including the provision of
assistance in the country of origin, to encourage this movement whenever it
is deemed to be in the interests of the refugees concerned;
(i) When, in the opinion of the High Commissioner, a serious problem
exists in the promotion of voluntary repatriation of a particular refugee
group, he may consider for that particular problem the establishment of an
informal ad hoc consultative group which would be appointed by him in
consultation with the Chairman and the other members of the bureau of his
Executive Committee. Such a group may, if necessary, include States which
are not members of the Executive Committee and should in principle include
 205

the countries directly concerned. The High Commissioner may also consider
invoking the assistance of other competent United Nations bodies;
G) The practice of establishing tripartite commissions is well adapted to
facilitate voluntary repatriation. The tripartite commission, which should
consist of the countries of origin and of asylum and UNHCR, could concern
itself with both the joint planning and the implementation of a repatriation
programme. It is also an effective means of securing consultations between
the main parties concerned on any problems that might subsequently arise;
(k) International action to promote voluntary repatriation requires consi-
deration of the situation within the country of origin as well as within the
receiving country. Assistance for the reintegration of returnees provided by
the international community in the country of origin is recognized as an
important factor in promoting repatriation. To this end, UNHCR and other
United Nations agencies as appropriate should have funds readily available
to assist returnees in the various stages of their integration and rehabilitation
in their country of origin;
(l) The High Commissioner should be recognized as having a legitimate
concern for the consequences of return, particularly where such return has
been brought about as a result of an amnesty or other form of guarantee. The
High Commissioner must be regarded as entitled to insist on his legitimate
concern over the outcome of any return that he has assisted. Within the
framework of close consultations with the State concerned, he should be
given direct and unhindered access to returnees so that he is in a position
to monitor fulfilment of the amnesties, guarantees or assurances on the basis
of which the refugees have returned. This should be considered as inherent
in his mandate;
(m) Consideration should be given to the further elaboration of an instru-
ment reflecting all existing principles and guidelines relating to voluntary
repatriation for acceptance by the international community as a whole.

NO. 44 (XXXVII) DETENTION OF REFUGEES AND ASYLUM-SEEKERS 6

The Executive Committee,

Recalling article 31 of the 1951 Convention relating to the Status of

Refugees
Recalling further its conclusion No. 22 (XXXII) on the treatment of
asylum-seekers in situations of large-scale influx, paragraph (e) of its con-
206

elusion No. 7 (XXVIII) on the question of custody or detention in relation

to the expulsion of refugees lawfully in a country and paragraph (e) of its
conclusion No. 8 (XXVIII) on the determination of refugee status,
Noting that the term "refugee" in the present conclusions had the same
meaning as that in the 1951 Convention relating to the Status of Refugees
and the 1967 Protocol, and was without prejudice to wider definitions
applicable in different regions,
(a) Noted with deep concern that large numbers of refugees and asylum-
seekers in different areas of the world were currently the subject of detention
or similar restrictive measures by reason of their illegal entry or presence in
search of asylum, pending resolution of their situation;
(b) Expressed the opinion that in view of the hardship that it involved,
detention should normally be avoided. If necessary, detention might be
resorted to only on grounds prescribed by law to verify identity; to determine
the elements on which the claim to refugee status or asylum was based; to
deal with cases where refugees or asylum-seekers had destroyed their travel
and/or identification documents or had used fraudulent documents in order
to mislead the authorities of the State in which they intended to claim
asylum; or to protect national security or public order;
(c) Recognized the importance of fair and expeditious procedures for
determining refugee status or granting asylum in protecting refugees and
asylum-seekers from unjustified or unduly prolonged detention;
(d) Stressed the importance for national legislation and/or administrative
practice to make the necessary distinction between the situation of refugees
and asylum-seekers, and that of other aliens;
(e) Recommended that detention measures taken in respect of refugees
and asylum-seekers should be subject to judicial or administrative review;
(f) Stressed that the conditions of detention of refugees and asylum-
seekers must be humane. In particular, whenever possible, refugees and
asylum-seekers should not be accommodated with persons detained as
common criminals and should not be located in areas where their physical
safety was endangered;
(g) Recommended that refugees and asylum-seekers who were detained
should be provided with the opportunity to contact the Office of the United
Nations High Commissioner for Refugees or, in the absence of such office,
available national refugee assistance agencies;
 207

(h) Reaffirmed that refugees and asylum-seekers had duties to the country
in which they found themselves, which required in particular that they should
conform to its laws and regulations and to measures taken for the mainte-
nance of public order;
(i) Reaffirmed the fundamental importance of the observance of the prin-
ciple of nonrefou/ement and in this context recalled the relevance of con-
clusion No.6 (XXVIII).

NOTES

l. 34 U.N. GAOR Supp. (No. 12A) at 17, U.N. Doc. A/34/12/Add.l (1979).
2. Conclusion No. 8 (XXVIII), Determination of Refugee Status, 32 U.N. GAOR Supp. (No.
12A) at 14, U.N. Doc. A/32/12/Add.l (1977).
3. 36 U.N. GAOR Supp. (No. 12A) at 17, U.N. Doc. A/36/12/Add.1 (1981).
4. 38 U.N. GAOR Supp. (No. 12A) at 25, U.N. Doc. A/38/12/Add.1 (1983).
5. 40 U.N. GAOR Supp. (No. 12A) at 33, U.N. Doc. A/40/12/Add.l (1985).
6. 41 U.N. GAOR Supp. (No. 12A) at 31, U.N. Doc. A/41/12/Add.1 (1986).
 INDEX

Ad Hoc Committee on Legal Aspects of Ter- state's view of, 112

ritorial Asylum and Refugees of the in United States, applications for, 69-70
Council of Europe (CAHAR), ix, 80-82 Cuban refugees and, 60
Adjudication of refugee claims, 12-15 foreign policy and, 63-65. See also
procedures for (1987), 19 n.34 Foreign policy
standards used for, 20 n.37 immigration law and, 61-62
Afghanistan, refugees from, 77-78, 89, 90, 92 illegal immigration and, 62-64
Africa, refugees from, 2 Iranian students and, 61
temporary refuge in, 89, 91 Nicaraguans and, 61
Aga Khan, Prince Sadruddin, 16 n.7, 43, 127 official policy of, 67-72
Airlines, passport collection on, 6-7, 17 n.17 persons excluded from, 67
Aliens, abuse of refugee claims by, 25-26, political, 60-65
32-33, 69, 111-112, 202-203 refugee status and, 25-26, 30, 70, 74-75
forcible return of, 33-34, 40-42 Asylum claims, adjudication of, 12-15, 19
mass expulsion of, 151 n.l14 n.34, 20 n.37
Association of Southeast Asian Nations, 134 Asylum process, abuse of, 25-26, 32-33, 69
Asylum, definition of, 83 n.18 1ll-112, 202-203
durable, definition of, 47 Asylum seekers. See also Refugees
entitlement to, under 1951 Refugee Con- barriers to, 13-15
vention, 18 n.26, 75 extra-regional, 28-29, 36-38
in German law, 77-78 jet age, 49-56
immigration and, 9, 12, 68-69, 112 kinds of treatment received by, 11-13, 30,
irregular movements and, 29-31 109, 111-112,
as limited tool, 14 136-140, 152 n.124, 199-200
municipal law on, 77-78, 136-140 new phenomenon of, 8-11, 49
nonrefoulement and, 18 n.26, 112. See also nonrefoulement and. See Nonrefoulement
Nonrefoulement as political issue, 6-7
customary international law on, public ambivalence toward, viii, x, 11-13,
128-136 29, 59, 70-71, 93-94
municipal law on, 136-140 socioeconomic considerations and, 37-38,
treaty law on, 125-128 52
principle of, 24 spontaneous, 4-5, 8-9, 36
state's legal obligation toward granting, 53 unlawfully present, treatment of, 62-64,

David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
210

199-200 nonrefoulement and, 106-109, 129

Attorney General (U.S.), parole authority of, refugees from, xi, 3, 106-107
27, 57-58, 138, 145 n.23, 153 n.l40 treatment of, 109, lll-112, 136-140,
Australia, asylum policies inj 139, 154 n.161, 152 n.124
155 nn.l62, 163 types of, 109
reservations on protection of new temporary refuge and, 89-90, 92-93,
refugees, 112 141-142
Coffin, William Sloane, 161, 163-165, 176
'B' status for refugees, 105, 117 n.13 n.8
Bangladesh, 2, 6 Combatants, vs insurgents, temporary refuge
Banjul Charter on Human and People's for, 90,92
Rights, 151 n.l14 Commission des Recours (France), 79-80
Board of Immigration Appeals, 70 Committee of Ministers (Europe). See
adjudication of asylum claims and, 19 n.34 Council of Europe, Committee of Ministers
false documents and, 27 Communal housing, for refugees, 7, 13
Boat interdiction, 6, 95-96 Communist refugees, asylum in America and
Boat People, 3, 5, 6, 95-96 Europe for, 2, 4, 8, 57, 67, 71 n.9, 183
U. S. foreign policy and, 59 Conclusions, of Executive Committee of UN
Boatlift, from Marie! harbor to Florida, 4, 16 High Commissioner's Programme, on In-
n.9, 60, 95-96 ternational Protection, vii, 195-207
Bolanos-Hemandez v. INS, 138 on detention, 206-207
Border countries, local settlement in, 37 on irregular movements, 23, 39-44, 53-54
Border crossing, 3, 5, 8-10, 91-92 on protection of refugees in mass influx,
Bureau of Human Rights and Humanitarian 198-201
Affairs (U.S.), 62, 69 on refugees without a country of asylum,
75-76, 195-197
CAHAR (Ad Hoc Committee on Legal As- on unfounded or abusive applications for
pects of Territorial Asylum and Refugees refugee status, 26, 202-203
of the Council of Europe), ix, 80-82 on voluntary repatriation, 37, 65 n.IO,
Cambodian refugees, 3, 137 203-205
Camps, refugee, ix, 9-10 Conseil d'Etat, on country of first asylum, 79
Palestinian, 189 Constantine, 179 n.50
providing temporary refuge, 89-91 Consultations on Arrivals of Asylum-seekers
in safe zones in countries at civil war, 93 and Refugees in Europe, 92, 136
screening function of, 9-10, 19 n.31 Convention for the Protection of Human
Canada, asylum law in, 139, 154 nn.l58, 159 Rights and Fundamental Freedoms, non-
irregular movements and, 23 refoulement obligations and, 131
role in averting refugee flows, 185 Convention of the Organization of African
Tamil refugees in, 7 Unity (1969), 16 n.7, 104, 134, 182, 191 n.l
Carroll, Earl H., judge, 167 Convention Relating to the Status of Re-
Cartagena Declaration on Refugees (1984), fugees (1951), l-3, 16 n.3, 18 n.26, 53, 75,
92, 104 89-90, 103, Ill, 182
Chew Heong v. United States, 97, 101 n.65 article l (definition of refugee) in, 3, 25-26,
Christian churches, as sanctuaries, 179 116 n.3, 123, 144 n.2
nn.50, 51 article 33 (on nonrefoulement), in, xi, 87,
Civil disobedience, anxiety about, 172 105, ll6n.4, 126-127,132,140, l47n.44
in civil rights movement, 179 n.57 Coordinator for Refugee Affairs (U.S.), 65
in Europe, x n.7
in sanctuary movement, 161, 164, 171-174 Corbett, Jim, 161-164
Civil war. See also Temporary refuge civil disobedience and, 165-166
 211

religious legalism of, 170, 171 on irregular movements, 34-35

Council of Europe, Committee of Ministers, Developing countries, aid given to refugees
80-82 by, ix, 2, 35, 50-51
Recommendation n. R(84)1, 131-132, 148 vs industrialized countries, as hosts of new
n.75, 149 n.77 asylum seekers, 8-11
Consultative Assembly, proposal of obli- division oflabor in dealing with refugees
gation of nonrefoulement, 131 and, 50-51
country of first asylum and, 80-82 refusal to ratify nonrefoulement agree-
Parliamentary Assembly, Recommen- ments by, 128-129
dation 773 on providing temporary re- Dewey, John, 160
fuge to de facto refugees, 131 Displaced persons, 104
Resolution 67, on nonrefoulement, 127 Dissent, in sanctuary movement, 171-174
Country of first asylum, ix, 53 Djibouti, temporary refuge in, 89, 91
denial of readmittance and, 54 Documentation, false or absent, 17 n.17,
differences among European countries on, 26-27, 38, 41, 197. See also Visa require-
74 ments
European aspects of, 73-84 Domestic flight alternative, 82 n.l
failure to return to, and asylum claims, 69 Draft Agreement on the Responsibility for
irregular movements and, viii, 29-31, 49, Examining an Asylum Request (Europ-
53-54. See also I"egu/ar movements ean), 80-82
principle of, ix, 69, 73 Due process, denial of, in sanctuary move-
in cases of temporary refuge, 92 ment, 168
rationale for applications of, 53-54
reasons for unscheduled spontaneous de- East Germany. See German Democratic Re-
partures from, 36 public
refugees in orbit and, 73 ECRE (Legal Network ofthe European Con-
return or rejection at border and, 126 sultation on Refugees and Exiles), 74, 77,
standards of practice on, 75-80 79, 83 n.3
in France, 74 El Salvador, refugees from, 4, 62, 70, 88-89.
in Germany, 77-78 See also Sanctuary movement
in Switzerland, 76-77 foreign policy and political asylum
in United States, 74-75 issues and, 63-64
United States as, 4 killed in Honduras, 89-91
Country of second asylum, identification of United States practice and, 92-96, 138
refugees in, 107 Elder, Jack, 166,169
Country responsible for examining request Equal protection, denial of, sanctuary move-
for asylum, identification of, 80-82, ment and, 169
196-197 Europe, as countries of first asylum, 4-5,
Criminal law, sanctuary movement and, 177 73-84
n. 27 asylum system of, in 1980s, 4-5
Cuban refugees, 4, 16 n.9, 17 n.IO, 18 n.25, eastern, refugees from, 2, 4, 8, 57, 67, 71
60, 95-96, 183 n.9, 183
Czechoslovakia, refugees from, 125 European Agreement for the Abolition of
Visa for Refugees (1959), 80
Death squads, in El Salvador, 63 European Agreement on the Transfer of Re-
Denmark, refugees in, 5 sponsibility for Refugees (1980), 80
Denationalization, right of, 192-193 n. 23 European Commission of Human Rights,
Detention, 7, 13, 27, 96, 206-207 110, 141-143 European Convention of
Deterrent measures, viii, 6-7, 13, 25 Human Rights, article 3 of (on torture),
effectiveness of, 35 110, 132, 141-143
 212

Exile, prohibition of, international law on, national Cooperation to Avert New Flows
192-193 n.23 of Refugees, 43-44
Extended voluntary departure (EVD), 95, Guatemalan refugees, 70, 88-89. See also
100 n.51, 101 n.68, 105, 118 n.14, 138, 153 Sanctuary movement
nn. 141, 144, 145, 147 Guinea, refugees from, asylum in France
Extradition, nonrefoulement and, 105 and, 79
Extra-regional arrivals, irregular movements
and,28-29 Haiti, refugees from, 4, 6, 61, 62, 95-96
regional solutions for, 36-38 Hartling, Paul, 1, 4, 6, 15, 49
split exodus and, 37-38 Head, Judge Hayden, 169
Honduras, breach of temporary refugee prin-
Federal Republic of Germany, asylum law in, ciple by, 89-91
137, 152 nn.134-137 Hotel & Restaurant Employee Union v. Smith,
attitude toward false or absent documents, 95, 100 n.54, 153 nn.141, 144, 147
27 Human rights, refugee problem and, xi-xii,
attitude toward refugees from civil war, 185-186, 189, 190
112 Human Rights and Massive Exoduses, Stu-
country of first asylum principle and, dy on (Sadruddin Aga Khan), 43
77-78 Human rights violations, nonrefoulement
Guidelines and Practical Measures (for and, 140-143
treatment of refugees), 185, 188 Humanitarian ideals, large-scale refugee
refugees in, 5 flows and, 113-115
role in averting new refugee flows, 185, 188 Refugee Act of 1980 and, 58-59
Fernandez-Roque decision, 96-97, 101 n.69 refugee aid and, xi, 9, 106, 108-109
Filartiga v. Pena-lra/a, 109-110, 152 n.125 UNHCR's role and, 130
First Amendment argument, in sanctuary Humanitarian law, temporary refuge and,
cases, 169 87-88, 94
Forcible return. See also Repatriation, forced Hungarian refugees, 2, 125
involuntary
of aliens at frontier, 33-34 Immigration, asylum and, 9, 12, 68-69, 112
to countries already giving protection, illegal, claims for refugee status and, 69
40-42 from countries of western hemisphere,
in mass expulsion, 151 n.l14 62-64
Foreign policy, asylum decisions and, x, Immigration and Nationality Act (INA), 67,
63-65, 147, 153 nn.144, 168-169 70, 71 n.9, 96, 100 n.61.
Central American, sanctuary movement See also Refugee Act of 1980
and, 165-166 Immigration and Naturalization Service, 62,
vs refugee practice, 39, 59, 68, 94, 96 69, 138
temporary refuge and, 96-97, 138 adjudication of asylum claims and, 19 n.34
France, asylum law in, 137 sanctuary movement and, 168
country of first asylum practice in, 79-80 Immigration judges, in United States, 69
Immigration law, political asylum and, 61-62
German Democratic Republic, as transit Indonesia, refugees from, 89-91
country, 6 Industrialized countries, and developing
Germany, East. See German Democratic Re- countries, as hosts of asylum seekers, 8-11
public division of labor in dealing with refugees,
Germany, West. See Federal Republic of Ger- 36-38, 50-51
many irregular movements in, 31-32. See also
Ghanaian refugees, 6, 151 n.114 I"egular movements
Group of Governmental Experts on Inter- numbers of refugees in, 29
 213

refugee aid given by, ix, 3, 50-51 racial and ethnic tension and, 36-38
Inhuman conduct. See Torture resettlement and, 25
Institute oflnternationallaw, Resolution of, restrictions on, 33-34
on definition of asylum, 83 n.18 solutions to, 32-38
Insurgents, temporary refuge and, 90, 92. See Italy, attitude toward refugees from civil war,
also Civil war 112
InterAmerican Commission on Human
Rights, 92 Jaeger, Gilbert, report of, viii, 49
Interdiction, of boats, 6, 95-96 Jet age refugees, 1, 49-56. See also Irregular
for screening of persons not to be repa- movements
triated, 92 problems posed by, 51-52
International cooperation, in coping with
mass exodus of refugees, 201 Kampuchea, refugees from, 89, 91. See also
on irregular movements, 54-55 Cambodia
in promoting voluntary repatriation, 205
on regional solutions, 32-38 Laos, refugees from, 3, 137
International law, customary, determination Legal Network of the European Consul-
of, 147 n.48, 148 n.65 tation on Refugees and Exiles (ECRE), 77,
in cases of torture, 140-143, 192-193 n.23 79, 83 n.3
on denationalization and exile, 192-193 Legal implications, of nonrefoulement con-
n.23 cept, 106-109
on nonrefoulement, 128-136, 140-143 Legal responsibility, of state of origin,
on obligations toward refugees, xi, 187-188
104-105, 124-125, 131, 182-183. See Legal standards, for judging asylum claims,
also Conclusions, of Executive Committee 12-14
ojUN High Commissioner's Programme, Legalism, of sanctuary movement, 167-173
onlnternational Protection; Convention Legality, of mass expulsion of refugees, 188
Relating to the Sta- of sanctuary movement, 161-164
tus of Refugees (1 951) Local integration, in asylum country, 50
sanctuary movement and, 166-167, 169
temporary refuge and, 96-97, 134-136 Marie! boatlift, 4, 16 n.9, 60, 95-96
United States violation of, 94-97 Merkt, Stacey, 166
Iran, refugees from, 4, 55, 61 Mexico, refugees from, 62
Irian Jaya, refugees from, 89, 90 Middle East, refugees from, 57
Irregular movements. See also Country offirst Moakley-DeConcini bill, 95, 100 n.53
asylum Municipal law, country of first asylum con-
application of concept of, 25-31 cept and, 74
causes of, 40, 42-44, 51-52 documentation and, 27
Conclusion on ( 1985), submitted to Execu- international law and, 152 n.125
tive Committee of UNHCR, 53 on nonrefoulement and asylum, 136-140
country of first asylum and, viii, 29-31,49,
53-54 N ationa! sovereignty, root causes of refugees
definition of, viii, 23-25, 39, 41, 44-45, 49 and, 185-187
deterennt measures and, viii, 6-7, 13, Natural duties, 120 n.46
34-35 nonrefoulement and,d 119-111
government attitudes toward, 39-44 Nazism, 118 n.26
international cooperation on, 54-55 Netherlands, 54, 112
numbers of refugees involved, 31-32 asylum law in, 137
protection of refugees and, 25 resettlement policy of, 53
public reaction to, 36-37 Nicaragua, 4, 61
214

Niebuhr, Reinhold, 160 United States practice on, 74-75, 138

Nigerians, expelled from Cameroon, 151 Peyote case, 169
n.114 Polish refugees, political asylum and, 64
Nonrefoulement. See also Protection; Tempo- Political asylum, in United States, 60-65.
rary refuge See also Asylum
application of principle of, 18 n.26, 105, Political climate, asylum seekers and, 6-7.
131-132, 146 n.32 See also Foreign Policy
assumptions about, 129 refugee aid in, 11-13
asylum and, customary international law Portugal, asylum law in, 136
on, 128-136, 140-143 Potsdam Protocol, 188
municipal law on, 136-140 Protection. See also Nonrefoulement
treaty law on, 125-128 definition of, viii, 30-31, 41-43, 83 n.18
breach of, 94-95, 105-106 in first asylum country, refugee status and,
in cases of torture, 140-143 viii, 75
Conclusion on, 199-200 forcible return and, 40-42
in countries bordering Switzerland, 76 historical aspects of, 2-6
future options on, 113-115 international law on, xi, 128-136, 140-143
legal implications of, 106-109 irregular movements and, 25, 29-31,
limitations on, 111-112 41-42
moral philosophy and, 110 obligatory aspects of, scope of, 111-112
peremptory norm of, 129-132 refugee status and, viii, 75, 104-105
principle of, xi, 88, 103-106 Swiss law on, 77
vs refusal of asylum, 53 West German practice on, 77-78
support for, 109-110 United States practice on, 74-75
rejection at border and, 126-128 for refugees fleeing civil war, 129
temporary refuge and, 87-88, 112, 121 n.63 for refugees in mass exodus, 108-109,
Nuremberg principles, 161, 166 199-200
types of, given to asylum seekers, 30
Organization of African Unity, 16 n.7, 92 Protocol Relating to the Status of Refugees
Convention Governing Specific Aspects of (United Nations), 1967, 16 n.3, 25, 67-68,
Refugee Problems in frica (1969), 104, 89-90, 103, 105, 111
134-135 sanctuary and, 161
Public ambivalence, toward asylum seekers,
Pakistan, East, 2 viii, X, 11-13, 29, 59, 70-71, 93-94
Palestinian refugees, 186, 189-190
Papua New Guinea, temporary refuge in, 89, Quota refugees, 4, 16 n.9, 17 n.13
91
Paquete Habana, 96 Racism, 11, 18 n.25, 36-38
Parole authority, of Attorney General, 27, Refoulement agreements, bilateral, 76, 82, 83
57-58, 138, 145 n.23, 153 n.140 n.l6. See also Non-refoulement
Persecution. See also Refugee, definition of Refugee Act of 1980 (United States), 57-66,
civil war and, 139 75, 94, 159
in definition of refugee under 1951 Con- contributions of, 58
vention, 144 n.2. See also Convention Re- foundations of, 95
lating to the Status of Refugees (1951) humanitarian ideals and, 58-59
nonrefoulement and, 126-127 limitations of, 59
in Refugee Act of 1980, 159 parole authority of Attorney General and,
refugee status and, 3, 67-68, 75, 104 58
Swiss law on, 77 political asylum and, 60
West German practice on, 77-78 Refugee advocacy groups, 13-14, 19 n.34
 215

Refugee crises, political parties to, 181-184 split exodus of, 37-38
tensions and divisions associated with, state practice with, 139
184 state restrictions on, 151 n.ll6
Refugee law, and country of first asylum, 53, UNHCR Conclusions on, 196, 198-201
74-75 numbers of, 4-5,20, 29, 31-33, 111, 123
criticism ofby refugee advocacy groups, 19 political vs economic, debate about, 184
n.34 protection of. See Protection
documentation and, 27 "root causes" of, i-xii, 44, 45, 185-186,
entitlement to asylum and, 13, 18 n.26, 24 189, 190
humanitarian law and, 87-88 Refugees in orbit, x, 53, 143, 158 n.l98
international. See International law country of first asylum and, 73
modern, 1, 3, 4, 8, 11. See also Convention irregular movements and, 28
Relating to Status of Refugees {1951) Refugees Without a Country of Asylum,
temporary refuge and, 94-96 Conclusion 15 of UNHCR Executive
Refugee status, asylum seekers and, 25-26, Committee, 195-197
30, 74-75 Rejection at frontier, in Conclusion 15, 197
manifestly unfounded or abusive appli- nonrefoulement and, 105, 126-128, 145
cations for, 25-26, 32-33, 69, lll-112, n.22
202-203 temporary refuge and, 91, 132-133
refusal to apply for, 131 Religious principle, in sanctuary movement,
Refugees. See also Asylum seekers 159-161, 170-171
absorption in new country, 125 Repatriation, forced involuntary, 89, 91, 92,
admission ceilings on, in United States, 58 118 n.26
'B' status of, 105, 117 n.l3 of Salvadoran refugees, 94-96
bona fide, 9-10, 12, 23, 25-26 as solution to refugee crises, 183-184
convention vs temporary, 138-139 voluntary, 56 n.10, 91, 93
de facto, 130-131, 136, 137, 148 n.73, 152 Conclusion 40 on, 203-205
n.132 UNHCR encouragement of, 37,
definition of, 16 nn. 3, 7, 71 n.9, 104-105 193-194 n.28
expanded, 67, Ill, l15 Resettlement, ix, 4, 25, 38, 51, 107, 147 n.40
as label for call to action, 9-10 of Cubans, in U.S., 16 n.9
in OAU Convention, 16 n.7, 104, 134, UNHCR role in, 52
191 n.l Restrictive state practices, viii, 6-7, 13
in 1951 Refugee Convention, 3, 16 n.3, disadvantages of, 14-15
58, 116 n.3, 123-125 on irregular movements, 33-34
in U.S. law, 9,s 58, 94 political advantages of, 13
false, 6, 8 Reynolds v. United States, 169
humanitarian, international response to,
125. See also Non-refoulement Safe areas, l18 n.25
mass influx of, 59, 123. See also Immi- Salvadoran refugees. See El Salvador, re-
gration fugees from
application of 1951 Convention defini- Sanctuary, historical abuse of, 179 n.52
tion to, 124-125 use of Christian churches as, 179 nn. 50, 51
early warning of, 189 Sanctuary movement, x, 63, 94
encouraged by states of origin, 184 jurisprudence of, 164-167
international response to, 106 legalism of, 167-171
legal standard applying to, 133-134 legality of, 161-164
principles for managing, l14-ll5 purpose of, 70
orderly departure and transit of, 189 religious arguments in, 169-171
protection afforded to, 108-109 religious principle in, 159-161
216

secular arguments in, 168-169 numbers of aliens affected by, 133

U.S. position in, 96 obligatory aspects of, 92, 135-140
Shelter, asylum and, 78 presumptions and standards of proof for,
irregular movements and, 30 107-108
Ships under force majeure, 110 protection afforded under, 90, 92, 133
Shue, H., "basic rights" theory of, 119 n.39 as refugee law doctrine, 94-96
Southeast Asia, first asylum countries of, 3 for refugees from civil war, 90, 92,
refugees from, Refugee Act of 1980 and, 59 141-142. See also Civil war
Soviet refugees, 2 rejection at frontier and, 132-133
Sri Lanka, 6, 55, 89, 91, 93 temporal limits of, 91, 133
State of origin, approaches to, in preventing vs lasting refuge, article 33 of 1951 Con-
refugee flows, 185-187 vention and, 127
compensation of other states by, 190, 194 third country resettlement and, 134
n.30 UNHCR view of, 135
legal responsibility of, 185-190 United States practice in, 96-97
guidelines for, 188-190 "Temporary Safe Haven Act of 1987," 97
role of, 183-184 Thailand, forced repatriation of Kampu-
State practice, on country of first asylum, cheans by, 89
75-80 Theodosius, 179 n.50
on mass refugee exodus, 139 Third world. See Developing countries
on nonrefoulement, 123-124, 129-130, Thomas, Norman, 160
136-140 Torture, xi, 143
on obligations toward refugees, 105 nonrefoulement and, 123-124, 140-143
on return or rejection at border, 126-128 state-sponsored, international law and,
on temporary refuge, 88-94, 96-97, 109-110
132-134, 136-140 Trail Smelter Arbitration, 187
restrictive, viii, 6-7, 13-15, 33-34 Transit country, asylum in France and, 79
in torture cases, 140-143 asylum in United States and, 69
Supreme Court (United States), 74 definition of, ix
Sweden, asylum law in, 137 irregular movements and, viii, 41
refugees in, 5
Switzerland, asylum law in, 76, 138-139 Ugandan refugees, 183
country of first asylum practice in, 76-77 United Kingdom, asylum law in, 138
new refugees in, 5, 112 United Nations Conference on Territorial
Asylum (1977), 76, 127-129, 146 n.32, 147
Tamils, 7, 55, 89, 91 n.42
safe zones for, 93 United Nations Convention Against Torture
in Switzerland, 154 n.l56 and Other Cruel, Inhuman or Degrading
Temporary refuge, 87-101. See also Civil war Treatment or Punishment, 110, 142-143,
burdens of, 93-94 157 n.l92, 158 n.204
components of, 90-93 United Nations Declaration on Territorial
Conclusion 15 on, 196 Asylum (1967), 127-129
Conclusion 22 on, 198-201 United Nations Group of Governmental Ex-
definition of, 89, 149 n.83 perts on International Cooperation to Av-
emerging norm of, 132-136 ert New Flows of Refugees, 113, 185
for mass movements of refugees, 108-109, United Nations High Commissioner for Re-
134 fugees (UNHCR), vii, 1, 3, 9, 14, 15
municipal law on, 136-140 Executive Committee of High Com-
nonrefoulement and, 112, 121, n.63 missioner's Programme, vii, 23, 39-41,
normal state practice of, 88-94 104
 217

Conclusions of. See Conclusions ofExec- 27

utive Committee of UN High Com- attitude toward temporary refuge, 95-96.
missioner's Programme Sub-Com- See also Temporary refuge
mittee of as country of first asylum, 4
the Whole on International Protec- foreign policy in, and refugee programs,
tion, 39, 42-43, 47 n.42, 53 59. See also Foreign policy
Notes on International Protection of 1984, refugee law of, 57-59. See also Refugee Act
130 of 1980, United States
plea for extension of principle of non- sanctuary movement in. See Sanctuary
refoulement by, 129-130 movement
prohibition on forced involuntary repa- Salvadoran refugees and, 92-96. See also
triation by, 89, 92 El Salvador, refugees from
on repatriation to safe zones, 93 Universal Declaration of Human Rights, ar-
role of, 117 n.7, 144 n.12 ticle 14, 167
in addressing root causes, xi-xii, 44
in limiting refugee flows, 43-44 Vietnamese refugees, 3, 137, 183, 189
in organizing and dealing with refugee Visa requirements, 6, 33, 39
flows, SO, 189
in protection of refugees, 90, 104, 112, West Germany. See Federal Republic of Ger-
125,200 many
in resettlement, 52 Western Hemisphere, illegal immigration to
in solutions for irregular movements, U.S. from, 62-64
39-44, 54-SS Wiederkehr, Marie-Odile, 81
in temporary refuge, 88, 90, 135 Work, right to, denial of, 7, 13
Statutes of, 116 n.6
United States, asylum law in, 138 Xenophobia, 11, 18 n.25, 36-38
asylum policy in, x, 60-65, 67-72
attitude toward false or absent documents, Zaire, 6
 INTERNATIONAL STUDIES IN HUMAN RIGHTS

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