Obligation under international law to provide protection to all those Okuzan asylum seekers from

Mayzan?

art of the difficulties encountered by refugees lies in the obvious gap between the existence of a
right to asylum and the lack of a corresponding state duty to grant asylum. The 1948 Universal
Declaration of Human Rights famously provides that “everyone has the right to seek and enjoy in
other countries asylum from persecution” (article 14). 1

THE OBLIGATIONS OF STATES

Obligations Deriving from Treaty

Whereas the Statute of UNHCR prescribes the functions and competence of the Office within the
United Nations organization, the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees provide, between states parties, for the meaning of the term "refugee" and for
appropriate standards of treatment. The link between the Statute and the treaties is in the
supervisory role of UNHCR, conferred in general terms by the former, 2 and expressly acknowledged
by states parties to the latter. 35

Rights of Refugees under the 1951 Convention

Article 3 of the Convention obliges states to apply its provisions to refugees "without discrimination
as to race, religion or country of origin;" most of those provisions in turn call for certain standards of
treatment to be accorded to refugees. In principle, therefore, states ought to establish procedures
for applying the definition and for identifying and recognizing refugees, without which bona fide and
effective implementation of the Convention would not be possible. 3

Article 28 obliges states to issue travel documents to refugees lawfully staying in their territory
(known as Convention travel documents or CTDs). A Schedule to the Convention sets the form for
the document, prescribes various conditions for issue, provides for "returnability" and for the
recognition of CTDs issued by other states.

Article 31 of the Convention obliges states parties not to impose penalties for illegal entry on
refugees "coming directly from a territory where their life or freedom was threatened in the sense of
Article 1," provided that they report to the authorities without delay and show good cause for their
actions.

8 While there is no obligation under international law to grant asylum to refugees, states are still
bound by the principle of non-refoulement as defined in article 33 of the 1951 Convention. This
principle provides that no refugee shall be returned to any country “where his life or freedom would
be threatened on account of his race, religion, nationality, membership of a particular social group
or political opinion.” This principle is now generally considered to be part of customary international
law.4 It must be noted that the principle is not limited to those formally recognised as refugees. 10 In
other words, asylum-seekers should not be returned to any country where they would face
persecution and they benefit from such a prohibition until they are declared not to be refugees.

1
Universal Declaration of Human Rights, GA Res. 217 A (III), 10 December 1948
2
UNHCR Statute, supra note 8, para. 8(a). 35 1951 Convention, supra note 15, art. 35
3
Such indeed has been held to be the case by one court in the Federal Republic of Germany. See Judgment No.
74 of Nov. 25, 1958, Bundesverwaltungsgericht [BVerwGE], 7 Entscheidungen des BVerwGE 333, 3
4
Lauterpacht and D. Bethlehem, “The scope and content of the principle of nonrefoulement: opinion”, in E.
Feller, V. Trk and F. Nicholson (eds.), Refugee protection in international law: UNHCR’s Global Consultations on
International Protection (Cambridge: Cambridge University Press, 2003), 87-177, at 149
UNHCR suggests that the state presented with an asylum claim retains at least the responsibility to
receive and process the claim. 5

States are responsible for respecting and ensuring the human rights of everyone on their territory
and subject to their jurisdiction.17 6 International and regional human rights instruments are
therefore relevant to both defining and protecting the integration standards for recognized
refugees. In its General Comment No. 15 for example, the Human Rights Committee (HRC)
reaffirmed this by stressing that the enjoyment of Covenant rights (i.e. ICCPR) is not limited to
citizens of States Parties but must be available to all individuals regardless of nationality or
statelessness; thereby including asylum-seekers and refugees, for example.18 7 This was also
reiterated by UNHCR’s Executive Committee (ExCom) in its Conclusion No. 82, where reference is
made to the

“obligation to treat asylum-seekers and refugees in accordance with applicable applicable human
rights and refugee law standards as set out in relevant international instruments.”19 Article 13 of
the ICCPR also refers to expulsion of aliens, although it ‘regulates only the procedure and not the
substantive grounds for expulsion’.8In particular, it provides aliens with full opportunity to pursue
remedies against expulsion, which may only be suspended for ‘compelling reasons of national
security’.57

regard to the responsibility to assess the merits of the claim, the state where the claim is made can
decline to assume that responsibility where it is established that the refugee has already found
‘effective protection’ in the country of first asylum. 948 Moreover, the responsibility to assess the
merits of the claim can be transferred to a third state provided that there is no risk of persecution in

5
A. Grahl-Madsen, Territorial asylum (Stockholm: Almqvist & Wiksell International, 1980), 174-176
6
In this respect, the Human Rights Committee (HRC) has recently established in General Comment No. 31 (on
Article 2 of the Covenant: The Nature of the General Obligation Imposed on States Parties to the Covenant:
ICCPR/C/74/CRP. 4/Rev.6, para. 10), that the scope of the ICCPR is not strictly limited to territory. According to
the HRC, the obligation in article 2 to respect and ensure the Covenant rights to all persons who may be within
State territory or subject to their jurisdiction “means that a State Party must respect and ensure the rights laid
down in the Covenant to anyone within the power and effective control of that State Party, even if not situated
within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh
session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be
available to all individuals, regardless of nationality or statelessness, such as asylum-seekers, refugees, migrant
workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State
Party. This principle also applies to those within the power or effective control of the forces of a State Party
acting outside its territory, regardless of the circumstances in which such power or effective control was
obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-
keeping or peace-enforcement operation.” [Emphasis added]. In this connection, article 1 of the ECHR as well,
refers to the concept of jurisdiction, for example, rather than territory.
7
The Human Rights Committee General Comment No. 15: The position of aliens under the Covenant:
11/04/86. U.N. Doc. HRI/GEN/1/Rev.1 (1994). See paragraph 1 in particular, which states: “In general, the
rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her
nationality or statelessness.”
8
6 HRC General Comment No. 15 on ‘The Position of Aliens under the Covenant’, UN doc. CCPR/C/21/Rev.1, 19
May 1989, para. 10
9
8 On the concept of ‘effective protection’, see Summary Conclusions on the concept of “effective protection”
in the context of secondary movements of refugees and asylum-seekers, Lisbon Expert Roundtable, 9 and 10
December 2002; S.H. Legomsky, Secondary refugee movements and the return of asylum-seekers to third
countries: the meaning of effective protection, Legal and Protection Policy Research Series, PPLA/2003/01,
February 2003 or (2003) 15 International Journal of Refugee Law 567; and Statement by Ms. Erika Feller,
Director, Department of International Protection, at the fifty-fifth session of the Executive Committee of the
High Commissioner’s Programme, 7 October 2004
that state, that the asylum-seeker has access to fair and efficient procedures there and that he is
treated according to international human rights standards. 49 Nevertheless, it is considered that
responsibility to assess an asylum application cannot be transferred to any third state which fulfils
these conditions: there must be some connection between the asylum-seeker and the state
assuming responsibility to assess his claim, e.g. lawful residence, family ties and so on. 10According to
UNHCR, the state assuming the responsibility to assess the merits of the claim should assume the
responsibility to provide protection pending durable solutions. Financial, human and technical
support should be provided to the states assuming the responsibility to protect refugees at these
two stages. 51 Finally, the responsibility to provide durable solutions should also be a shared
responsibility and emphasis is placed on the role of resettlement. 52

A Mass-Scale Problem11 – The Refugees The ideas just developed rest on an analysis of
configurations characterized by their individuality. Generally, however, refugees are not isolated
individuals. When a tense political situation in a given country develops to the point of making
departure an advisable option, many people will start leaving their homes at the same time. Mass
migration sets in. the question is whether the large scale dimension of the phenomenon changes the
terms under which it should be addressed. For the refugee himself, the best solution is normally to
be able to return to his country, provided of course that the 34. Ream Charan B.G., “State
Responsibility for Violations of Human Rights Treaties”, in Contemporary Problems of International
Law: Essays in Honour of George Schwarzenberger, London 1988, p.242. 35. UN Compensation
Commission, Provisional Rules for Claims Procedure, Doc. S/AC.26/1992/INF.1, Article-512
circumstances prompting his or her departure have fundamentally changed. The right to return is
nothing other than the original right guaranteed under Article 12 of the Covenant and at the same
time anchored in customary law. It is not a “new” right brought into being by the wrongful measures
taken by the State concerned. No valid legal defence can be perceived that might be adduced to
justify restrictions aimed at preventing masses of people from regaining their country of origin. In
fact, the General Assembly has often asserted a right of refugees to return back home. This was
done for the first time in the famous Resolution 194 (III) of 11 December 1948 on Palestine. In that
resolution, the General Assembly – “Resolved that that the refugees wishing to return to their
homes and live at peace with their neighbours should be permitted to do so at the earliest
practicable date, and that compensation should be paid for the property of those choosing not to
return and for loss of or damage to property which, under principles of international law or in
equity, should be made good by the Governments or authorities responsible”.

10
(esil-sedi.eu)
11
SSRN-id2875803.pdf
Obligation under international law to provide protection to all those Okuzan asylum seekers from
Mayzan had not been full filled?

The 1948 Universal Declaration of Human Rights famously provides that “everyone has the right to
seek and enjoy in other countries asylum from persecution” (article 14). 2 However, this right to seek
asylum has not been included in any legally binding instrument. Most notably, there is no mention of
this right in the 1951 Refugee Convention. This suggests that states have been very reluctant to give
to this “right” any substantive legal content. 12

Article 32 declares that a refugee lawfully within a state shall be expelled only on grounds of national
security or public order. A hearing and appeal is to be permitted against such order of expulsion,
except where compelling reasons of national security otherwise require. Moreover, the contracting
states also agree to allow such refugees a reasonable period in which to seek legal admission to
another state, subject to the states' right to apply such internal measures as they deem necessary. 13

12
One can note that the right to asylum is included in the EU Charter of Fundamental Rights which is part of
the Treaty establishing a Constitution for Europe (article II-78). However, this right is only guaranteed in
accordance with the 1951 Convention and its Protocol, and the Constitution itself.
13
Non refoulment

resettlement denied by other countries, and return to their country of origin barred by the rule of
nonrefoulement. Unlike the case of the refugee lawfully staying in the territory of a contracting
state, the limitations on the power of expulsion under Article 32 do not apply to refugees who have
entered illegally. A distinction, however, must be drawn between the administrative act of ordering
expulsion and actual, physical removal of the refugee. It is at the point of actual expulsion that the
provisions of Article 33 significantly limit states' discretion. This was acknowledged in the Refugee
(Germany) Case. 5' The German court held that a refugee who had obtained an extension of his
residence permit by false statements was not "lawfully" within the Federal Republic of Germany. The
restriction on permissible grounds of expulsion did not, therefore, apply to him in the manner
foreseen by Article 32. Nevertheless, the court also held that the right inherent in Article 33 was not
similarly tied to lawful presence, and must be interpreted to mean that no refugee, whether lawfully
or unlawfully within the territory, may be expelled to a place of persecution. An almost identical
conclusion was reached in the 1974 United States case, Chim Ming v. Marks.

5 2REFUGEE ENTRY: INTERNATIONAL PERSPECTIVES 301 The exceptional privilege of derogation

from the principle of nonrefoulement is closely circumscribed. Thus, Article 33(2) expressly provides
that the benefit of nonrefoulement may not be claimed by a refugee, "whom there are
reasonablegrounds for regarding as a danger to the security of the country ... or who, having been
convicted by a final judgment of a particularly serious crime, constitutes a danger to the community
of that country." 5 3 By thus indicating and limiting the circumstances in which the power to
derogate may be exercised, Article 33 emphasizes the preeminence and the normative quality of the
fundamental rule of nonrefoulement.

Expulsion (a) Recognized that, according to the 1951 Convention, refugees lawfully in the territory of
a Contracting State are generally protected against expulsion and that in accordance with article 32
of the Convention expulsion of a refugee is only permitted in exceptional circumstances; (b)
Recognized that a measure of expulsion may have very serious consequences for a refugee and his
immediate family members residing with him; (c) Recommended that, in line with article 32 of the
1951 Convention, expulsion measures against a refugee should only be taken in very exceptional
cases and after due consideration of all the circumstances, including the possibility for the refugee to
be admitted to a country other than his country of origin; (d) Recommended that, in cases where the
implementation of an expulsion measure is impracticable, States should consider giving refugee
delinquents the same treatment as national delinquents and that States examine possibility of
elaborating an international instrument giving effect to this principle;REFUGEE ENTRY:
INTERNATIONAL PERSPECTIVES 325 (e) Recommended that an expulsion order should only be
combined with custody or detention if absolutely necessary for reasons of national security or public
order and that s14

14
s://repository.law.umich.edu/cgi/viewcontent.cgi?article=1871&context=mjil