1. New York Times, 15 October 1981, at A1, col. 4. The Office also received the Nobel Prize in 1955. Not all the media comment following the award was as complimentary as that of the Times. Criticisms of the Office's competence, and of U.N. disaster work in general, were made in a C.B.S. “60 Minutes” segment entitled “What About the U.N.?” shown on 15 November 1981.Google Scholar

2. The main works are: L. Holborn, Refugees: A Problem of Our Time. The Work of the United Nations High Commissioner for Refugees, 1951–1972 (1975); J. Read, The United Nations and Refugees—Changing Concepts (Int'l Conciliation No. 537, 1962); Schnyder, Les Aspects Juridiques Actuels du Probleme des Refugies, 114 Recueil des Cours 339 (1964); Weis, The Office of the United Nations High Commissioner for Refugees and Human Rights, 1 Human Rights J. 243 (1968); Grahl-Madsen, Protection for the Unprotected, 37/38 Y.B.A.A.A. 176 (1967–68); Fowler, The Developing Jurisdiction of the United Nations High Commissioner for Refugees, 7 Human Rights J. 119 (1974); Aga Khan, Legal Problems Relating to Refugees and Displaced Persons, 149 Recueil des Cours 287 (1976). Much of the literature is by incumbents of the Office or senior officials in it. For some useful recent commentary, see Nanda, World Refugee Assistance: The Role of International Law and Institutions, 9 Hofstra L. Rev. 449 (1981); Martin, Large-Scale Migrations of Asylum Seekers, 76 Am. J. Int'l L. 598 (1982).Google Scholar

3. Some writers would suggest that non-refoulement is merely one side of the asylum coin. See, e.g., A. Grahl-Madsen, The Status of Refugees in International Law, Vol. I at 6. “The ‘right of asylum’ has been said to comprise both positive and negative elements. The ‘positives’ may be expressed by the words ‘entry’ and ‘sojurn,’ while the ‘negatives’ may be expressed by the words ‘non-extradition,’ ‘non-refoulement,’ and ‘non-expulsion.’”Google Scholar

4. In “rights” terms, the needs of refugees touch upon nearly every provision of statements such as the Universal Declaration of Human Rights, G.A. Res. 217, 3(1) U.N. GAOR Resolutions 71, U.N. Doc. A/811 (1948). Note, in particular, these provisions: art. 3 (right to life, liberty and security of person), art. 5 (freedom from torture or cruel, inhuman or degrading treatment or punishment), art. 7 (rights for all “without distinction”), art. 9 (freedom from arbitrary arrest, detention or exile), art. 13 (right to leave any country), art. 14 (right to seek and enjoy in other countries asylum from persecution), art. 15 (right to a nationality), art. 23 (right to work), art. 25 (right to an adequate standard of living), art. 26 (right to education).Google Scholar

5. See Holborn, supra note 2 at 29–36.Google Scholar

6. Id. 7–20.Google Scholar

7. Statute of the UNHCR, art. 1. Annex to G.A. Res. 428(V), 5 U.N. GAOR, Supp. (No. 20) 46, U.N. Doc. A/1775 (1950). The refugee problem was still seen as a temporary one and the initial life of the Office was for a period of three years. Needless to say, new groups of refugees are regularly generated and there is by now little doubt that the problem is a continuing (if not expanding) one. The Office's life has been extended from time to time, most recently by G.A. Res. 32/68, 32 U.N. GAOR, Supp. (No. 45) 140, U.N. Doc. A/32/45 (1977) extending the Office for a further five-year period from 1 January 1979.Google Scholar

8. On the work of UNRWA, see the annual Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East.Google Scholar

9. Holborn, supra note 2 at 138–39. Holborn notes that:Google Scholar

Mrs. Eleanor Roosevelt, the US delegate, opposed authorization of an appeal, reminding the delegates that contributions were already required for the large relief programs in Palestine (UNRWA) and Korea (UNKRA), as well as for UNICEF and the UN Technical Assistance Program. She declared that the UN was m danger of administering relief on a worldwide basis and that her government opposed the precedent of authorizing a UN official to collect funds for a rather indefinite program in competition with other and more definite UN programs, and she announced that her government would not contribute to such a fund and would abstain from voting for the joint draft resolution introduced by Columbia, Denmark, Lebanon, the Netherlands, New Zealand, the UK, and Uruguay, which embodied the HC's request for emergency assistance. Id. at 138.Google Scholar

10. Statute, supra note 7, art. 2.Google Scholar

11. Forsythe, D., Humanitarian Politics. The International Committee of the Red Cross (1977).Google Scholar

12. Id. at 1.Google Scholar

13. Id. at 2.Google Scholar

14. See Note, Refugees—United Nations Meeting on Refugees and Displaced Persons in South-East Asia July 20–21, 1979, 21 Harv. Int'l L.J. 290. (1980).Google Scholar

15. New York Times, 10 June 1980, at A16, col. 1.Google Scholar

16. The Office's Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979) notes at 45 that procedures adopted by states to make refugee status determinations “vary considerably.” It adds that, “In a number of countries, the Office of High Commissioner participates in various forms, in procedures for the determination of refugee status.” Id. at 46. The Office has also been involved in determinations concerning Haitians in the U.S.Google Scholar

17. Statute of the UNHCR, supra note 7, art. 6.Google Scholar

18. Convention relating to the Status of Refugees, 189 U.N.T.S. 137. The parties to the Convention undertake to grant to refugees (as defined) such guarantees as: non-discriminatory treatment; unless the Convention contains more favorable specific provisions, treatment as least as favorable as that granted to aliens generally; national treatment in respect of freedom of religion; protection of juridical rights such as personal status and property rights; a limited right of association; access to the courts; a right (at least after a reasonable period) to gainful employment; national treatment in cases where a rationing system applies; rights to housing, education and public relief; application of labor legislation and social security; certain administrative assistance; freedom of movement; identity papers and travel documents; protection from refoulement; facilitation of naturalization.Google Scholar

Under art. 35 of the Convention “The Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.” In respect of Contracting States the UNHCR has a direct treaty basis for its activities. In respect of states not parties it must fall back on its authority as a U.N. subsidiary organ. An analogous situation is that of the Inter-American Commission on Human Rights under the American Convention on Human Rights and its jurisdiction in respect of non-parties such as the U.S.Google Scholar

19. For those states that are parties to the 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, the pre-1951 restriction of the 1951 Convention has been removed. 86 States are parties to both the Convention and Protocol, three to the Convention only, and two (Switzerland and the U.S.) to the Protocol only.Google Scholar

20. The Statute, supra note 7, art. 7 states:Google Scholar

7 Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person:Google Scholar

(a) Who is a national of more than one country unless he satisfies the provisions of the preceding paragraph in relation to each of the countries of which he is a national; orGoogle Scholar

(b) 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 possession of the nationality of that country; orGoogle Scholar

(c) Who continues to receive from other organs or agencies of the United Nations protection or assistance; orGoogle Scholar

(d) In respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.Google Scholar

21. See Ginsburgs, The Soviet Union and the Problem of Refugees and Displaced Persons 1917–1956, 51 Am. J. Int'l L. 325, 356–57 (1957).Google Scholar

22. Fowler, supra note 2 at 136–37.Google Scholar

23. Id. at 137 (Sudan), Report of the United Nations High Commissioner for Refugees, 36 U.N. GAOR, Supp. (No. 12), U.N. Doc. A/36/12 (1981) at 30 (Zimbabwe) and 51 (Cyprus).Google Scholar

24. Statute of UNHCR, supra note 7, arts. 8–10.Google Scholar

25. The ICRC and Amnesty International are other good examples of the point.Google Scholar

26. G.A. Res. 1388 (XIV), 14 U.N. GAOR, Supp. (No. 16) 20, U.N. Doc. A/4354 (1959) authorized the High Commissioner “in respect of refugees who do not come within the competence of the United Nations, to use his good offices in the transmission of contributions designed to provide assistance to these refugees.” And note the discussion of developments involving good offices as well as General Assembly references to “displaced persons” (“large groups of people who may not conform at all to the conventional definition of a refugee but are in a situation analogous to that of refugees.”) in Aga Khan, supra note 2 at 339–43. See discussion of this and other broadening resolutions of the General Assembly and ECOSOC in van Krieken, The High Commissioner for Refugees and Stateless Persons, 26 Netherlands Int'l L. Rev. 24, 25–26 (1979).Google Scholar

27. Supra note 18.Google Scholar

28. Supra note 19.Google Scholar

29. Reprinted in International Legal Instruments on Refugees in Africa 118 (G. Melander & P. Nobel ed. 1979).Google Scholar

30. Id. art. VIII.Google Scholar

31. Report of the United Nations High Commissioner for Refugees, supra note 23 at 16.Google Scholar

32. Id. Google Scholar

33. G.A. Res. 34/61, 34 U.N. GAOR, Supp. (No. 46) 174, U.N. Doc. A/34/46 (1979).Google Scholar

34. Supra note 23 at 16.Google Scholar

35. O.A.U. Convention, supra note 29, art. I.Google Scholar

36. Read, supra note 2 at 15.Google Scholar

37. Report of the United Nations High Commissioner for Refugees, supra note 23 at 51 (Cyprus) and 38 (Indochina); News from the United Nations High Commissioner for Refugees, No. 1, January 1982 at 3, col. 2 (Honduras).Google Scholar

38. To supporters or organs such as UNHCR, “creative expansion” is of course a good thing. To its opponents “creeping expansionism” is anathema.Google Scholar

39. Supra note 23. More detail on specific projects during the period is contained in the High Commissioner's Report to his Executive Committee, U.N. Doc. A/AC. 96/594 (1981).Google Scholar

40. Id. at 1. Supra note 23 at 1.Google Scholar

41. Id. Google Scholar

42. Convention relating to the Status of Refugees, supra note 18, art. 33.Google Scholar

43. Two of the “sources” of international law referred to in art. 38 of the Statute of the International Court of Justice.Google Scholar

44. Report of the United Nations High Commissioner for Refugees, 35 U.N. GAOR, Supp. (No. 12) 3, U.N. Doc. A/35/12 (1980). None of the ASEAN countries where the problems arose was a party to the 1951 Convention or 1967 Protocol. The Philippines has since acceded to both.Google Scholar

45. Supra note 23 at 1.Google Scholar

46. See discussion supra note 12.Google Scholar

47. Supra note 23 at 1.Google Scholar

48. Id. at 18.Google Scholar

49. Id. at 3.Google Scholar

50. Id. Google Scholar

51. Id. Google Scholar

52. Id. at 10.Google Scholar

53. Id. at 4.Google Scholar

54. Universal Declaration of Human Rights, supra note 4, art. 14; Declaration on Territorial Asylum, G.A. Res. 2312 (XXII), 22 U.N. GAOR, Supp. (No. 16) 81, U.N. Doc. A/6716 (1967), preamble. The preamble to the latter document also “recogniz[es]” that the grant of asylum “is a peaceful and humanitarian act and that as such it cannot be regarded as unfriendly by any other State.” The point is often lost on states of origin of refugees.Google Scholar

55. Grahl-Madsen, A., Territorial Asvlum 42–43 (1980). Grahl-Madsen's book discusses current efforts to develop the law in the direction of recognizing a right to asylum. And see Aga Khan, Asylum—Article 14 of the Universal Declaration of Human Rights, 8(2) J. Int'l Comm. Jurists 17 (1968).Google Scholar

56. Supra note 23 at 7.Google Scholar

57. Id. at 7 and 47.Google Scholar

58. The Report, id. at 47, records blandly that the “UNHCR donated a patrol boat to the Royal Thai Navy for surveillance and rescue purposes in the Gulf of Siam.” According to the New York Times, 15 October 1981, at A5, col. 4; “With considerable delicacy and a touch of irony, the High Commissioner donated a patrol boat to the Thai Navy, a strong hint that it might do better.” Refugee Update, for January 1982, published by the Washington Liaison Office of UNHCR, reports that:Google Scholar

One strange prosecution was brought against nineteen Vietnamese refugees for attacks on “fishermen”. Provided with legal aid by UNHCR, they were acquitted on the basis that they had indeed themselves been the subject of a piratical attack and had been exercising their right to self defense. News From the United Nations High Commissioner for Refugees, No. 2, February 1982, at 1, col. 3. According to a recent report:Google Scholar

News From the United Nations High Commissioner for Refugees, No. 5, May 1982, at 12 col. 1.Google Scholar

59. Supra note 23 at 8.Google Scholar

60. See, e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981) (Cubans); Nelson, Louis v., Commissioner, Immigration and Naturalization Service, Case No. 81-1260-CIV-EPS (S.D. Fla. 1982) (Haitians).Google Scholar

61. Supra note 23 at 9–10.Google Scholar

62. Id. at 13.Google Scholar

63. Id. at 18–32.Google Scholar

64. Id. at 33–37.Google Scholar

65. Id. at 37.Google Scholar

66. Id. Google Scholar

67. Supra text at notes 45–46.Google Scholar

68. Supra note 23 at 51.Google Scholar

69. Id. at 50–51.Google Scholar

70. Id. at 50.Google Scholar

71. Id. at 52.Google Scholar

72. Id. at 60.Google Scholar

73. Id. Google Scholar

74. Id. at 63–64.Google Scholar

75. G.A., 4th Sess., SR. at 495 (1949). In the Third Committee where the U.S. dissented on matters of detail, the vote was only 24-12-10 4th Sess Third Committee SR. at 150 (1949).Google Scholar

76. Ambassador Nasinovsky of the Soviet Union in U.N. Doc. E/AC.7/SR. 572 at 4 (1965). On the Soviet attitude to the High Commissioner and to international efforts on behalf of refugees in general, see Ginsburgs, supra note 21 and G. Ginsburgs, Soviet Citizenship Law, Chapter VI (1968).Google Scholar

77. To the extent of $30,270,700 in the biennium 1982–83 U.N. Doc. A/C.5/SR. 83 (1981). The Soviet bloc has invariably either abstained or voted negatively when the administrative budget has been considered in the Fifth Committee (as it does on many other budgetary matters). None of the socialist countries appears, however, to have withheld from its assessment its share of the High Commissioner's administrative budget.Google Scholar

78. A very useful General Information Paper issued by UNHCR in February 1982, Doc. HCR/50B/1/82, explains it thus at 8 (footnote omitted):Google Scholar

79. Supra note 23 at 72.Google Scholar

80. The General Information Paper, supra note 78, Annex III tabulates this dramatic increase in expenditure which obviously cannot be accounted for merely in terms of inflation:Google Scholar

81. Supra note 23 at 71–72.Google Scholar

82. The U.S. was initially hostile to the Office, supra note 9, but since 1956, it has contributed generously. It now meets about a quarter to a third of the program budget of UNHCR, in addition to local costs as one of the major countries of resettlement. Japan, which only recently began to resettle refugees, and then only a handful, became a significant contributor in the late 1970s. It has made generous contributions to the Indochinese operation. With one exception, the U.S.S.R. has never contributed to the assistance program. The exception appears in the UNHCR Report in respect of the 1974 calendar year, 30 U.N. GAOR Supp (No. 12) 60, U.N. Doc. A/10012 (1975) which lists the U.S.S.R. as contributing $445,000 towards “Subcontinent repatriation.” The German Democratic Republic is listed for a $350,000 contribution for the same purpose. A footnote adds that these contributions, towards an airlift and boatlift for population exchanges between Pakistan and Bangladesh, were “in kind” and “Estimated figures, still subject to clearance with donor Governments.” See also Addendum to the Report of the United Nations High Commissioner for Refugees, 29 U.N. GAOR, Supp. (No. 12B) U.N. Doc. A/9612/Add. 2 (1974).Google Scholar

83. Supra note 23 at 65–67.Google Scholar

84. Anyone who has tried to obtain U.N. Press Releases will know the frustrations of trying to obtain ephemeral U.N. material.Google Scholar

85. In the Nottebohm Case (Lichtenstein v. Guatemala) [1955] I.C.J. 4, the International Court of Justice even took a narrow approach to the citizenship question by holding that Lichtenstein could not extend its protection to a naturalized citizen in the absence of a “genuine connection” between him and that state.Google Scholar

86. See generally, L. Sohn & T. Buergenthal, International Protection of Human Rights, Chapter II (1973).Google Scholar

87. See Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase), [1970] I.C.J. 4, 32 (some obligations in the human rights area are erga omnes and any state has an interest in their protection).Google Scholar

88. Reparation for Injuries Suffered in the Service of the United Nations [1949] I.C.J. 174.Google Scholar

89. Id. at 180.Google Scholar

90. U.N. Charter art. 1, para. 3.Google Scholar

91. See R. Clark, A United Nations High Commissioner for Human Rights (1972).Google Scholar

92. See the Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/CN. 4/1435 (1981). The Group carries out what amounts to protective functions by personal meetings with officials in whose countries disappearances are reported to occur, and by dispatching telegrams in emergency cases. The Group appears to have had some success in preventing torture and killing in particular cases.Google Scholar

93. And see Krenz, The Refugee as a Subject of International Law, 15 Int'l & Comp. L.Q. 90 (1966).Google Scholar