1 See generally Keely, C., Refugee Policy: The Case For a Development–Oriented Strategy 14–25 (1981)Google Scholar.

2 1951 Convention relating to the Status of Refugees, entered into force Apr. 22, 1954, 189 UNTS 137.

3 See Sadruddin, Aga Khan, Legal Problems Relating to Refugees and Displaced Persons , 149 Recueil des Cours 287, 301 (1976 I)Google Scholar; Holborn, L., Refugees: a Problem of Our Time 36–43, 57–64 (1975)Google Scholar.

4 See Sadruddin Aga Khan, supra note 3, at 301–09.

5 This particular comment appears in the statement submitted by UNHCR to the Secretary– General’s compilation titled International Co–operation to Avert New Flows of Refugees, Report by the Secretary–General, 36 UN GAOR (Agenda Item 66) at 43, UN Doc. A/36/582 (1981). The Statute of the Office of the United Nations High Commissioner For Refugees, GA Res. 428 (V), Annex, para. 2, 5 UN GAOR Supp. (No. 20) at 46, UN Doc. A/1775 (1950), explicitly provides that the work of the High Commissioner shall be “of an entirely non–political character.” See L. Holborn, supra note 3, at 89–90 (discussing this provision in the Statute).

6 Commission on Human Rights, Res. 30, 36 UN ESCOR Supp. (No. 3) at 191, UN Doc. E/1980/13, E/CN.4/1408 (1980). The General Assembly later endorsed this approach and requested that the Commission on Human Rights provide further recommendations after receiving the Secretary– General’s report. GA Res. 35/196 (Dec. 15, 1980).

Some of the momentum for attention to root causes derived from dissatisfaction with the July 1979 Geneva conference convened to consider the refugee crisis in Southeast Asia. The agenda for that meeting was oriented almost exclusively toward “humanitarian” issues of relief and resettlement, and attempts were made to thwart statements condemning Vietnam for causing the outflow. See Alvarez, , United Nations Meeting on Refugees and Displaced Persons in South–East Asia , 21 Harv. Int’l L.J. 290 (1980)Google Scholar.

7 Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, with Particular Reference to Colonial and Other Dependent Countries and Territories, Report of the Secretary-General, Commission on Human Rights, UN Doc. E/CN.4/1440 (1981)

8 Commission on Human Rights, Res. 29, 37 UN ESCOR Supp. (No. 5) at 230, UN Doc. E/1981/25, E/CN.4/1475 (1981).

9 Study on Human Rights and Massive Exoduses, Report by Special Rapporteur, Commission on Human Rights, UN Doc. E/CN.4/1503 (1981).

10 Id. at (i).

11 The original report contained three lengthy annexes describing mass exoduses over the last decade and also more general patterns of international migration during that period. Singled out for detailed attention were four case studies: Afghanistan, Ethiopia, Indochina, and Mexico. (The report acknowledges that the fourth such situation, the steadier flow of persons from Mexico to the United States, is not “a mass exodus of the classical type,” but states that this study was included to round out the picture; such a flow “constitutes an increasingly familiar dimension to the over–all context of mass exodus.” Id., Ann. II, at 38.) These annexes provoked objections, both from some of the source countries depicted and from those who felt the source countries’ actions had been treated too generously. Ultimately, a compromise was reached. The special rapporteur’s report was sanitized by removing the offending annexes and all references to them. It was then “reissued for technical reasons,” as the accepted euphemism describes it. UN Doc. E/CN.4/1503* (1981). (The original report, including the annexes, had been made widely available. It bears this same UN document number, minus the asterisk.)

12 Id., Recommendations at (i)–(ii). The report also contains general suggestions for improved provision of immediate relief aid and longer term development assistance. Id. at 44–50.

13 See International Co-operation to Avert New Flows of Refugees, supra note 5, at 18–25 (submission by Federal Republic of Germany setting forth 10 principles as recommended “general guidelines for the conduct of States”).

14 GA Res. 35/124 (Dec. 11, 1980).

15 A significant piece is missing from the “right to leave any country, including [one’s] own,” outlined in Article 13(2) of the Universal Declaration of Human Rights. That right means little unless one has somewhere else to go, yet the Declaration announces no corresponding right to enter anyone else’s country. See H. Lauterpacht, International Law and Human Rights 349 (1950). A similar, but more subtle, gap appears in Article 14, which speaks of a right “to seek and to enjoy in other countries asylum from persecution.” An earlier draft of this article recited a right to seek “and to be granted” asylum. The wording was changed because several nations feared the breach the original version implied in the traditional and jealously guarded prerogative of nations to control the entry of aliens. The right to seek and enjoy asylum therefore amounts to a right against the country of origin, not a claim against another state that the refugee might hope to enter. See id. at 421–23; Weis, , Recent Developments in the Law of Territorial Asylum , 1 Human Rights J. 378 (1968)Google Scholar. The desire of states to maintain control over entry likewise explains the dimensions of Article 13.

Since 1948, when the Declaration was adopted, a series of ad hoc resettlement efforts has succeeded, in general, in finding new homes for those who have chosen to leave or to seek asylum. As a result, the international community generally has escaped confronting too starkly the inevitable clash between control over entry and the expansive promise seemingly held out by Articles 13 and 14. Recurrent mass exoduses, accompanied by increasing resistance to resettlement, may strip the world of the luxury of this inattention. The resulting awareness is unlikely to lead to greater receptiveness to entry and relocation. A more mature realism about the scope of the right to leave or the right to seek asylum is perhaps the most to be hoped for. The real issue is whether any stiffer insistence that persons stay within their own borders will be accompanied by vigorous efforts to improve human rights observance in the would–be migrant’s home country or instead will reflect simply a rather selfish retreat into stricter policing of national boundaries.

16 International Co–operation to Avert New Flows of Refugees, supra note 5.

17 GA Res. 36/148 (Dec. 16, 1981).

18 Commission on Human Rights, Res. No. 1982/32 (March 11, 1982).

19 Australia was not necessarily calling for a new treaty. The failure of the 1977 conference convened to prepare a convention on territorial asylum will probably deter new treaty–drafting efforts in this field for many years to come. See generally Grahl-Madsen, A., Territorial Asylum (1980)Google Scholar. Australia instead meant its proposal primarily to precipitate explicit recognition, clarification, and improvement of existing practices—practices that are consistent with existing treaties but not extensively addressed therein.

20 See, e.g., 43 Institut de Droit International, Annuaire 376 (1950). See generally 2 A. Grahl–Madsen, The Status of Refugees in International Law 3–6 (1972).

21 See, e.g., Arts. 1(1) and 2 of Draft Convention on Territorial Asylum, prepared by Carnegie Endowment Working Group, Jan. 15, 1972, reprinted in A. Grahl–Madsen, supra note 19, at 174; Refugees Without an Asylum Country, Concl. 15 (XXX), 30 Ex. Comm. of UNHCR, paras. (a) and (c), 34 UN GAOR Supp. (No. 12), UN Doc. A/34/12/Add.1 (1979).

22 1951 Convention relating to the Status of Refugees, supra note 2; 1967 Protocol relating to the Status of Refugees, entered into force Oct. 4, 1967, 19 UST 6223, TIAS No. 6577, 606 UNTS 267.

23 Some progress has been made on this score since Australia voiced these concerns. Japan and the Philippines became parties to both the 1951 Convention and the 1967 Protocol in 1981.

24 Refugees Without an Asylum Country, supra note 21, at para, (f) (1979 resolution). The term’s first appearance in an Ex. Comm. resolution is contained in Asylum, Concl. 5 (XXVIII), 28 Ex. Comm. of UNHCR, 32 UN GAOR Supp. (No. 12), UN Doc. A/32/12/Add.1 (1977). (This usage is new. Formerly, “temporary refuge” denoted instead limited protection given in diplomatic facilities against, e.g., mob violence. See 2 A. Grahl–Madsen, supra note 20, at 6; 75 AJIL 142 (1981).)

25 1951 Convention, supra note 2, Art. 31(2). This is not to deny that Article 31 is chiefly devoted to setting forth protections required even for refugees unlawfully in the country of refuge, principally protection against the imposition of penalties for illegal presence, provided that the refugee comes directly from a country where persecution was threatened and presents himself promptly to the authorities of the receiving state. Id., Art. 31(1). Nevertheless, even while protecting against penalties of that sort, the article plainly countenances significant restrictions. Other articles of the Convention underscore the permissibility of such restrictions because their protections apply only to refugees “lawfully in” or “lawfully staying in” the country of refuge. See, e.g., Arts. 17, 18, 19 (gainful employment), Arts. 23, 24 (public relief and social security), and Art. 26 (freedom of movement).

26 See, e.g., General, Concl. 11 (XXIX), 29 Ex. Comm. of UNHCR, 33 UN GAOR Supp. (No. 12), UN Doc. A/33/12/Add.1 (1978); General, Concl. 14 (XXX), 30 Ex. Comm. of UNHCR, 34 UN GAOR Supp. (No. 12), UN Doc. A/34/12/Add.1 (1979).

27 See Art. 3(3) of 1967 Declaration on Territorial Asylum, GA Res. 2312, 22 UN GAOR Supp. (No. 16) at 81, UN Doc. A/6716 (1967), reprinted in A. Grahl-Madsen, supra note 19, at 161.

28 Memorandum, Australian Views on the International Protection of Refugees: Temporary Refuge and International Solidarity (presented at the Ex. Comm. meeting, Geneva, Oct. 1980, mimeo).

29 Temporary Refuge, Concl. 19 (XXXI), 31 Ex. Comm. of UNHCR, 35 UN GAOR Supp. (No. 12A), UN Doc. A/35/12/Add.1 (1980).

30 UNHCR, Report on the Meeting of the Expert Group on Temporary Refuge in Situations of Large-Scale Influx, UN Doc. EC/SCP/16, paras. 37–43 (1981).

31 Art. I, 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, entered into force June 20, 1974, 691 UNTS 14.

32 UNHCR Report, supra note 30, para. 41. The group built on an earlier list of standards compiled by a group assembled to address refugee problems in Asia. See International Institute of Humanitarian Law, Report of the Working Group on Current Problems in the International Protection of Refugees and Displaced Persons in Asia (San Remo, Jan. 1981), para. 44.

33 Executive Committee of the High Commissioner’s Programme, Report on the Thirty-second Session of the Executive Committee of the High Commissioner’s Programme, UN Doc. A/AC.96/601 (1981).

34 Id. at 16 (emphasis added).

35 1951 Convention, supra note 2, Art. I(A)(2).

36 See, e.g., GA Res. 3143, 28 UN GAOR Supp. (No. 30) at 89, UN Doc. A/9030 (1973); GA Res. 68, 32 UN GAOR Supp. (No. 45) at 140, UN Doc. A/32/45 (1977); GA Res. 26, 33 UN GAOR Supp. (No. 45) at 139, UN Doc. A/32/45 (1978). See also ESC Res. 2011, 61 UN ESCOR Supp. (No. 1) at 2, UN Doc. E/5889 (1976) (commending UNHCR efforts on behalf of refugees, displaced persons, and “victims of man–made disasters”). For a general description of this evolution, see Sadruddin Aga Khan, supra note 3, at 301–10.

37 1969 OAU Convention, supra note 31, Art. I(1) and (2).

38 UNHCR Report, supra note 30, para. 37.

39 The meeting was officially titled Round Table on the Problems Arising from Large Numbers of Asylum Seekers, and it considered many other issues relating to protection and assistance. This group did not shrink from use of the term “temporary refuge,” and its report gave a mild boost to usage of the term “asylum” in the sense of a durable solution. See International Institute of Humanitarian Law, Report of the Round Table on the Problems Arising from Large Numbers of Asylum Seekers (San Remo, June 1981), para. 10.

40 Questions of this sort are also being raised elsewhere. See, e.g., International Co–operation to Avert New Flows of Refugees, supra note 5, at 10 (comments submitted by Belgium); Ex. Comm. Report, supra note 33, para. 48.

41 On the contrary, it may prove difficult to retain full protection even for the entire group of persons who do meet the Convention definition. For example, there are serious efforts under way in the United States to recant the Convention definition and protect only an even narrower category: those for whom the grounds for a fear of persecution existed before they left their home countries. See S. 776, 97th Cong., 1st Sess. §5,127 Cong. Rec. 2578 (1981) (introduced by Sen. Huddleston, with 7 cosponsors).

42 Report of the Round Table, supra note 39, para. 8.

43 Id., para. 12.