You are on page 1of 28

International Law and the Detention of Refugees and Asylum Seekers

Author(s): Guy S. Goodwin-Gill


Source: The International Migration Review, Vol. 20, No. 2, Special Issue: Refugees: Issues
and Directions (Summer, 1986), pp. 193-219
Published by: Sage Publications, Inc. on behalf of the Center for Migration Studies of New
York, Inc.
Stable URL: http://www.jstor.org/stable/2546031
Accessed: 15-02-2018 20:40 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

Center for Migration Studies of New York, Inc., Sage Publications, Inc. are collaborating
with JSTOR to digitize, preserve and extend access to The International Migration Review

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention
of Refugees and Asylum Seekers

Guy S. Goodwin-Gill1
Office of the United Nations High Commissioner for Refugees

The detention of refugees and asylum-seekers throughout the worl


remained a most serious issue, currently affecting thousands of indivi?
duals. This article examines national concepts, powers and practices o
detention and contrasts these with individual rights of refugees and
asylum-seekers under international law.

Related aspects of this problem received some attention at the 1979 Arus
Conference on the Situation of Refugees in Africa which stressed that n
penalties for illegal entry or presence and no measures of detention shou
be imposed on refugtees beyond the circumstances contemplated by artic
31 of the 1951 Convention. The Conference was also concerned that refugees
should not be subject to legislative or administrative measures affectin
prohibited immigrants, and that, in many cases, measures of detention were
not covered by ordinary administrative or judicial remedies.
The following year, UNHCR called the attention of the Executiv
Committee of the High Commissioner's Program to a growing tendency
states to detain and expel asylum-seekers. In 1981, the Executive Committee
made detailed recommendations on protection and treatment in situatio
of large scale influx; these bear directly on the detention issue and ar
considered further below. Restrictive practices have nevertheless continued,
sometimes in the form of policies or so-called "humane deterrence" unde
which refugees and asylum-seekers are deliberately detained for indefini
periods, or simply as a result of the careless or wilful disregard of the refuge
elements in individual cases.
In the 1983 UNHCR note on international protection submitted to the
Executive Committee, the persistent trend to confuse refugees with ordinary

1 An earlier version of this article was submitted as a background paper to a Working Group on
the Treatment of Refugees with particular reference to the Problem of Detention, organized in
Florence, June 3-5, 1984, by the International Institute of Humanitarian Law under the auspices
of the Office of the United Nations High Commissioner for Refugees. The Report of the Working
Group and subsequent developments are summarized in the Annex, below. The views expressed
in this article are the personal views of the author and do not necessarily reflect the views of the
United Nations or UNHCR.
IMR Volume xx, No. 2 193

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
194 International Migration Review

aliens was linked to the overall decline in the availa


A marked deterioration in the admission, treatm
refugees was evident; they were exploited for polit
and often confined in border camps or conglomera
in conditions of hardship and danger. In some p
confinement with few if any solutions in sight wa
and psychological well-being of detainees; on occasi
to bombardment or armed attack as a consequence
or international power politics. The note obser
refugees and asylum-seekers as illegal immigra
release might be obtained once the bona fide cha
had been established, but in other cases indefinite
any distinction as to whether the claim was or
Simultaneously, it was becoming very difficult?
tations and high standards of proof?for refuge
their status.2
The detention of refugees and asylum-seekers
ment, but can never be separated from the context
refugee problems depend on international solida
together with parallel developments in those i
examine root causes and measures to avert new f
involves for the international community and U
rights issue and a basic protection issue. Situat
politically sensitive individual cases neatly juxtap
and international legal principles relating to re
human rights. Detention cannot be isolated from
tioned by) actual or perceived abuse of the asylum
to the security of the state and the welfare of the c
symptomatic of restrictive tendencies toward refu
flect elements of xenophobia and self-reservation.
lacunae in refugee law, such as the absence of rules
for determining asylum claims, or the conseque
pending decisions or solutions.
Various definitions of detention have been emplo
Sometimes the notion is closely linked to pendin
other occasions it may extend to any confinement
under restraints which prevent detainees from
wished for occupational and social activities.
"detention" is employed in the broad sense, to sign
closed camp or other restricted area. While the ove
to detain, within limitations, cannot be doubted, th
which govern the practice remain to be determi
2 Note on International Protection: UN doc. A/AC.96/623; See al
96/643, paras. 25-30.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 195

STATES' COMPETENCE TO DETAIN

The General Power

Next to life itself, liberty of the person and freedom of movement are among
the most precious of human rights, intimately linked to the general notion of
liberty as autonomy or self-government, of responsibility for oneself.3 More
than seven hundred and fifty years ago, the Magna Carta of 1215 proclaimed
that:4

No free man shall be taken or imprisoned,... or be outlawed, or exiled,


or any otherwise destroyed; nor will we pass upon him, nor condemn
him, but by the lawful judgment of his peers, or by the law of the land.

That this was not the end of executive detention, in England or elsewhere,
was amply demonstrated by the great political and legal battles of the
seventeenth and eighteenth centuries. The conflict between the Crown and
Parliament in England led in 1628 to the Petition of Right, which abolished
the power of executive detention confirmed only the previous year in Dar?
nel's Case.5 Henceforth, the power to detain would depend upon power
conferred by Parliament. One hundred and fifty years later, article 7 of the
1789 French declaration des droits de Vhomme etdu citoyen provided that no one
shall be accused, arrested or imprisoned, save in the cases determined by law
and according to the forms which it has prescribed. The United States Bill of
Rights 1791 declares quite simply that "no person shall be deprived of...
liberty... without due process of law".6 Other national constitutions and
basic laws have adopted similar language.7
Such provisions, of course, have not spelt the end of arbitrary even
though lawful detention. Wide powers may now be re-enacted and entrusted
to the executive branch of government, by the most democratic parliament,
often with only limited or attenuated controls. Moreover, the prohibition on
what is arbitrary at times offers scant protection against legal excess, where it
is argued that what is in accordance with law and procedure cannot be
arbitrary. The better view, however, is that an infringement of personal
liberty such as detention is arbitrary, not only if it is on grounds or in
3 Benn, S.I., 'Human Rights ? for whom and for what?' in Kamenka and Ehr-Soon Tay, eds.,
Human Rights, (1978), 59, 71.

4 Ch. 26 in the version confirmed by Edward I in 1297:6 Halsbury's Statutes (3rd ed.) 401.
5(1627)3St.Tr.l.
6 Fifth Amendment (1791).
7 Cf. Canada, 1960 Bill of Rights, which refers to 'the right of the individual to... liberty (and)
security of person..., and the right not to be deprived thereof except by due process of law'
(Section 9). The Constitution Act 1982, Part I, Canadian Charter of Rights and Freedoms:
'Everyone has the right not to be arbitrarily detained or imprisoned'. Article 21, Constitution of
India, states that "no person shall be deprived of his... personal liberty except according to
procedure established by law".

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
196 International Migration Review

accordance with procedures other than those e


where it takes place under the provisions of the l
tion of Which is incompatible with respect for th
of the person. Thus, it not only embraces wha
unjust.8 The prevailing standards of internatio
latter and the detention of refugees and asylum-
this context, including the specific exceptions wh
derogate from, certain human rights. Article 29(2
tion of Human Rights, reiterated in other instru
the duties of everyone to the community; it a
limitations which may be placed upon the exercis
"are determined by law solely for the purpose
and respect of the rights and freedoms of others
quirements of morality, public order and the gen
society".
Measures of detention have an obvious ro
suppression of crime, but the immediate objectiv
of those who face detention in the course of t
protection, and for an interim or permanent
practice, the circumstances of flight may well ge
where refugees enter illegally, without proper
crime is committed precisely to effect escape or
or assault and killing of border guards). The
asylum-seekers now detained throughout the wor
of serious crimes. Questions arising in their re
grounds upon which they may be detained, any d
of individuals and groups, the conditions of d
detention to the principle of non-refoulement
solutions to the problems of refugees. In asses
particular attention must be paid to state pra
component in determining the legal status
standards.

Control over Non-Nationals and the


Standards of General International Law

It is trite knowledge that states retain competence to control the entry and
residence of non-nationals, and that the effective implementation of such
control may require detention. Decisions on the entry, exclusion, expulsion
8 This interpretation was adopted by the Committee established by the Commission on Human
Rights to study the right of everyone to be free from arbitrary arrest, detention and exile. See, UN
doc. E/CN.4/826/Rev.l, paras 23-30. Also, Hassan, 'The word "arbitrary" as used by the Universal
Declaration of Human Rights: "Illegal or Unjust"?' 10 Harv. Int'l L.J.-225(1969); Lillich, 'Civil
Rights', in Meron, ed., Human Rights in International Law, (1984) 115, 121f.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 197

and treatment of foreigners are still considered to fall, like


nationality, within the realm of sovereign or absolute power, of
domain of domestic jurisdiction. Each state possesses, inh
sovereignty, the power to exclude all and any aliens; altern
community's right of self-definition justifies a degree of exc
lesser responsibility towards the non-belonger.9 In fact, no
maintains a policy of total exclusion and it is evident, if infrequen
that the movement of persons between states not only raises
issues, but also touches the rights and duties of the subjects of in
law. State practice provides ready evidence of the breadth of disc
claimed, but increasingly, other standards, with their origins
in general international law, are impressing themselves upon
conduct.
Certain rules have a long history and are well established. They include
those relating to nationality?the attribution of persons to a particular
territorial unit and the identification of the entity legally responsible for
them; and those relating to refugees, covering definition of the class and the
protection deriving from the principle of non-refoulement.10 Other rules,
such as that prescribing the right to be free from arbitrary detention or the
right to remedies and procedural due process, are only now finding substance
within the body of human rights law. The most basic human rights themselves
determine the minimum "no derogation" standard applicable to nationals
and non-nationals, whether or not refugees.11 The freedom to grant or to
refuse permanent asylum remains, but, save in exceptional circumstances,
states do not enjoy the right to return refugees to persecution or any situation
of personal danger. Moreover, protection against the immediate eventuality
is the responsibility of the country of first refuge which, in abiding by the
principle of non-refoulement through time, is required also to treat the
refugee in accordance with such standards as will permit an appropriate
solution, whether voluntary repatriation, local integration or third country
resettlement.12

The Charter of the United Nations is the starting point for the elaboration
of the modern standard of humanity which is international human rights
law. Since 1945, the United Nations has progressively developed appropriate

9 Cf. Martin, 'Due Process and the treatment of aliens,' 44 Uni. Pittsburgh L.R. 165, (1983);
Aleinikoff, 'Aliens, due process and "community ties": A response to Martin', ibid., 237. Cf.
Nafziger, 'The general admission of aliens under international law', 77 A.J.I.L. 804 (1983), who
argues strongly in favor of a 'qualified duty of states to admit at least some aliens'.

10 The standing of such rules in general international law is assessed in Goodwin-Gill, The
Refugees in International Law (1983), chs. 6-8, (hereafter cited as Goodwin-Gill, Refugee).
11 See, International Provisions protecting the Human-Rights of Non-Citizens: UN doc. E/CN.4/Sub.
2/392/Rev.l (1980). Study prepared by the Baroness Elles, Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities.

12 Goodwin-Gill, Refugee, 69-123, at 122f.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
198 International Migration Review

principles by reliance on articles 55 and 56 of t


solutions, by the adoption of the Universal Decl
1948 and by the promotion of multilateral treatie
the time to contain legally binding obligations,
Declaration are now frequently cited as forming p
law, sometimes with the status of jus cogens.13
study are: article 3 (right to life, liberty and s
(freedom from torture or cruel, inhuman o
punishment); article 9 (freedom from arbitrary
article 13 (freedom of movement); and article 14 (
The principle of non-discrimination, which r
human rights law, is of special importance, insofa
may be applied deliberately to certain racial or re
The 1965 International Convention on the Elimination of All Forms of
Racial Discrimination,15 as well as provisions of the 1966 Covenant
impose significant limitations on the range of permissible distinctions.
Article 2(1) of the Covenant on Civil and Political Rights16 obliges a state
to respect and to ensure the rights declared to "all individuals within it
territory and subject to its jurisdiction". The anti-discrimination provisi
is widely drawn and includes national or social origin, birth or other status.
Article 4(1) permits derogation in certain circumstances, but measures o
derogation must be consistent with states' other obligations under intern
tional law. No derogation at all is permitted from those provisions whic
guarantee the right to life, or which forbid torture or inhuman treatment,
slavery, servitude, or conviction or punishment under retroactive laws. The
right to recognition as a person before the law and the right to freedom of
conscience, thought and religion are also declared in absolute terms.17
The Covenant at large elaborates many of the rights and freedoms fir
proclaimed in the Universal Declaration. Thus, the right to liberty and
security of the person, and to freedom from arbitrary arrest and detention
declared; all persons deprived of their liberty are to be treated with humani
and respect; freedom of movement, however, is limited to those lawful
within the territory of a state, as is the right of aliens not to be arbitrarily
expelled. Otherwise, non-nationals and citizens enjoy the right to equali
before courts and tribunals, the right to privacy, honor and reputation and
the right of the family to protection by the state.18
13 Lillich, (above note 7), pp. 117-8.
14 Cf Goodwin-Gill, International Law and the Movement of Persons between States (1978), pp. 58-
(hereafter cited as Goodwin-Gill, Movement of Persons).
15 At 30 April 1984, 123 states were party to the Convention.
16 At 30 April 1984, 79 states were parties to the Covenant.

17 Article 4(2) See also Annex III, Elles, Human Rights of Non-Citizens (above, note 10).
" Article 9, 10, 12, 13, 14(1), 17(1), 23(1), 26.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 199

The European Convention on Human Rights and the jurispr


the European Commission and the European Court have likewise
the fundamental aspect of certain principles. The rights and freedo
equally to all within the jurisdiction of contracting parties, apa
exception which allows states to impose restrictions on the politica
of non-nationals. As with the 1966 Covenant, even where der
permitted, certain rights remain sacrosanct: life, freedom from
inhuman or degrading treatment, freedom from slavery or ser
from penalization under retroactive criminal legislation.19 The 196
Convention on Human Rights lists further non-derogable prov
in particular, requires that even in time of emergency there be no
of "the judicial guarantees essential for the protection of such righ
1981 African Charter of Human and Peoples' Rights, not yet
contains no substantive provisions allowing derogation in time of e
although certain limitations on the exercise of certain rights are p

The Problem of Emergency Powers

States frequently detain people on the basis of special powers, and


limitations and provisions for derogation in time of emergency re
of concern.22 Article 4 of the Covenant on Economic, Social and Cultural
Rights, for example, declares that rights may be made subject to "such
limitations as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society". Such bases for limitation are so
vague as to lack nearly all meaning. The "general welfare in a democratic
society" conceivably embraces all those matters often described in terms of
national security, ordre public, and public health, but the Covenant remains
unspecific and introduces no objective standards. Article 4(1) of the Covenant
on Civil and Political Rights, while dealing with permitted measures of
derogation, also contains an anti-discrimination provision narrower than
that in article 2(1), which would justify distinctions between nationals and
aliens, subject to states' continuing obligations with regard to fundamental
human rights.
General disquiet regarding limitations and derogations is justified not
only by the generality and vagueness of the wording of exceptions (public
emergency, life of the nation, national security, ordre public, necessary in a
democratic society), but also by experience with state practice in the face of
? Articles 2, 3, 4(1), and 7. Text in ETS No. 5.
20 Article 27. Text in 9 I.L.M. 99 (1970).
2i See, for example, Articles 6, 12, 27, 29. Text in 21 I.L.M. 58 (1982).
22 See, generally Higgins, 'Derogations under Human Rights Treaties', 48 B.Y.I.L. 281 (1976-
77).

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
200 International Migration Review

actual or perceived threats.23 Broad discretionary


entrusted by the legislature to the executive branch o
becomes judge both of the necessity for action a
taken. Many commentators have criticized the exten
of personal liberty in time of war has been abandon
although in times of lesser urgency, other stan
courts have intervened.25 More recently, the pr
situations of exception has received further impetus
the European Commission and the European Cour
Article 15(1) of the European Convention permi
of war or other public emergency threatening the l
measures derogating from their obligations. Sucli m
required by the exigencies of the situation and not b
other international obligations. Both the Court an
exercise of their supervisory jurisdiction, have ap
the facts purportedly justifying emergency action.
(Greece v. United Kingdom) the Commission ruled
declare on the existence of public danger, and o
actually taken were required, although "the gove
exercise a certain measure of discretion in assessing t
by the exigencies of the situation".26
A similar approach was adopted by the Europea
Case27 and is implicit in its judgment in Ireland v. U
latter case, the Court, while principally concerned w
and inhuman and degrading treatment, also exam
the crisis in Northern Ireland, including the intr
extrajudicial powers of detention and internmen
the Commission that such powers were not in confo
of the European Convention, "But were strictly requ
the situation", within the meaning of article 15(1). W

23 Study of the Right of Everyone to be free from arbitrary Arr


E/CN.4/826/Rev.l (1964), paras. 753-87.
24 Sharpe, The Law of Habeas Corpus, (1976) 97-102, discussing
legislation; See also, Lord Atkin's strong dissent in Liversid
Administrative procedures for review of detention did exist
826/Rev.l, para. 764.
25 In Eshugbayi Eleko v. Officer administering the Government of N
the Privy Council held that a valid exercise of the detention po
existence of the facts contemplated by the relevant legislation. In R
parte Ahsan (1969) 2 QB 222 the Court reviewed an immigratio
detention of an individual for having allegedly entered the cou
26 Application 17656:2 Yearbook 177.
27 4 Yearbook 438.

28 Judgment of the European Court of Human Rights, 18 Ja

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 201

(though not with regard to the treatment of those detained), the


margin of appreciation had not been overstepped.29
The concept of the 'margin of appreciation' contains inherent
individual liberties, but its existence as a general reservation
states is difficult to dispute. One commentator has located the noti
between objective and subjective powers;30 the state retains
freedom of decision, not necessarily in virtue of its sovef eignty
it may be best placed to know the facts and to determine appropri
Evidently, the existence of the facts can be determined objec
actions on the facts are controlled, at the lowest level, by the req
reasonableness and good faith. Thus, the measures taken
employed for other than the intended and permissible purpose,31
which reflects both the notion of abuse of rights in munici
municipal law prohibitions of bad faith and detournement de pou
power in the context of international law is ultimately discretion
sense of unlimited and omnipotent, since the very idea of power
element of design, of a defined objective, purpose or compete
role and effect of law to set the limits, to say what can and cannot
to prescribe the manner of exercise of the power in question.33
The above general considerations relating to states' power t
situations of emergency permit certain preliminary conclusions t
First, the provisions of international human rights law raise
sumption in favor of individual liberty, both for nationals and n
In its judgment, in United States Diplomatic and Consular Staff in
International Court of Justice observed that, "Wrongfully to dep
beings of their freedom and to subject them to physical constraint
of hardship is in itself manifestly incompatible with the prin

29 Judgment of the Court, para. 214.


30 Fawcett, The Application of the European Convention on Human Rights. (1969),

31 Article 18 of the European Convention provides: "The restrictions permitt


Convention to the said rights and freedoms shall not be applied for any purpose ot
for which they have been prescribed". Cf. Application 493/59: 4 Yearbook 32
applicant alleged that his detention had been ordered by the government not to
public, but to remove a political opponent.
32 Cf. Kahn, ' Discretionary power and the administrative judge ', 29 I.C.L.Q.
writer deals exclusively with the control of discretionary power in a munici
context, but makes a number of trenchant observations of general application.
decisions to be reviewed will involve "action taken by a public authority which
fact situation to adopt the means best adapted to achieve certain goals. The disc
goals will open to review the reasons for the decision...the legal reasons...", and
has been detournement de pouvoir. "The fact situation, separately considered
question whether the decision is based on materially correct or incorrect facts".
the question of assessment of, and application of the law to, the facts; "...are t
legally to justify the decision" (p. 524).
33 Goodwin-Gill, Movement of Persons, pp. 3-4, and authorities there cited.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
202 International Migration Review

Charter of the United Nations, as well as with t


enunciated in the Universal Declaration of Huma
Secondly, notwithstanding the presumption of
benefit from the retention of certain exceptional p
general limitations on the exercise of some, but no
as more substantial derogations in time of emer
must not exceed their object and purpose, although
margin of appreciation, in determining the existen
derogation and the measures necessary to meet
cedures of supervision, investigation or adjudic
called upon to show objective justification and r
between the means employed and the aims sough
Refugees are a class known to general internation
non-refoulement, as well as the fundamental pr
UNHCR by the international community, place ref
vis-a-vis a country of refuge or asylum,36 so that th
international concern. The question i3, whether
regard to the detention of refugees and asylum-see
refutes the preliminary position set out above.

STATE PRACTICE WITH REGARD TO THE DETENTION OF


REFUGEES AND ASYLUM-SEEKERS

In 1984, a survey was undertaken of the law and practice relating to the
detention of refugees and asylum-seekers in some forty-five states. The
object was to ascertain the laws and regulations applicable, whether leg
exemptions apply and whether any steps have been taken to incorporat
article 31 of the Convention, what provision is made for appeal or for advice
to UNHCR, the nature of the grounds for detention, whether differen
groups receive different treatment and finally, whether other restrictions o
freedom of movement may be applied. The results of this survey woul
themselves warrant a separate account and analysis and it is possible here to
present only a simplified summary.
Only a few states have taken any formal steps to incorporate exemption
from penalties. Recent legislation seems to be the exception, however, an
new laws in Portugal, Spain and Zimbabwe provide that persons who ente
341.C.J. Reports, 1980, p. 42, para 91. The general force of this observation is not weakened b
the fact that the detention in this case principally, but not exclusively, involved diplomats an
consuls. As "internationally protected persons" they certainly benefit from special rules, but
likewise do refugees; See, Goodwin-Gill, Refugee pp. 127-48. Moreover, the thrust of the dictu
goes beyond classes of protected persons to include "everyone" who falls within the purview o
human rights instruments.
35 Cf. Goodwin-Gill, Movement of Persons, pp. 77-8.
36 Goodwin-Gill, Refugee, pp. 129-36, 224-5.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 203

illegally for the purpose of seeking asylum will not be pun


number of other countries, illegal entry is often tolerated in practic
that asylum-seekers report promptly to the authorities. A formal d
in law between refugees and others is rare, however, and was prese
legislation of only six of the states reviewed. In Belgium the law pr
the issue of appropriate documents to asylum-seekers who arri
passports or visas.
Refugees and asylum-seekers are commonly subject to the sam
applied to aliens or to nationals. They may thus be exposed to p
punishment and/or detention, on account of illegal entry, entr
documents or with falsified documents. Detention may also be
where the applicant for asylum is considered likely to abscond or is
a danger to the public or national security.
In many countries, even those which have not ratified the C
and Protocol, leniency is shown to refugees, although this ofte
greatly on prospects for resettlement elsewhere. Recently, certain
have adopted more stringent policies towards certain groups. T
Chinese refugees in South East Asia are sometimes admitted onl
camps. They are either held pending resettlement or voluntary rep
or are confined indefinitely, without immediate prospects of a
solutions, as part of policies of "humane deterrence". Refugee
nationalities are frequently left at liberty.
The benefit of exemptions or discretion often depends on r
"coming directly" from territories in which their lives or freed
threatened. Time spent in transit or in a country of first refuge m
refugee ineligible for asylum or admission, even if non-return
other country. The ineligibility itself can lead to detention, pendin
Finally, refugees and asylum-seekers may be detained under gen
relating to national security and public order, or under special
powers. In some countries, the claim to refugee status itself m
applicant politically suspect; in others, racial origin, religious co
fear of political problems with neighboring states may be used to j
confinement of large groups.
Some form of review of the legality of detention is frequently a
least in theory. Courts' actual powers may be limited, however, to c
that the detention is formally lawful; they may also be restricted by
of emergency legislation. Appeals against detention, either adm
or judicial, were available in twenty-four of the forty-five countries
Access to legal counsel was also commonly available, at least in
although costs could be an inhibiting factor. Release on bail, p
guarantee might also be granted in appropriate cases; in several
UNHCRA guarantees or offers to seek resettlement were accept
authorities.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
204 International Migration Review

In only a few countries was there any establishe


the local UNHCR office of cases of detained ref
Such information might be provided informally,
with the authorities, or through the activities of
On the other hand, few if any objections appea
protection function; occasionally, UNHCR is al
the resettlement of politically sensitive cases. Stan
with conditions commonly related to those acco
Most countries employed immigration detention c
and segregated refugees and asylum-seekers from
detained for security or political reasons, however
similar local cases.
States also resort to restrictions on freedom of movement falling short of
detention. A number of European countries, for example, have long
employed the assignation a residence to limit refugees to particular areas. This
has been used in cases where the refugee's political activities are considered
undesirable (for example, in areas bordering his or her country of origin);
and in other cases, where the expulsion of otherwise undesirable alien
refugees has proven impracticable. In some parts of the world, and especially
in situations of mass influx, refugees may be required to live in settlements
or designated areas.
There are divergencies of detail, but the overall conclusions to be drawn
from current state practice confirm many of the misgivings expressed earlier
regarding the treatment of refugees and asylum-seekers. Among the grounds
for detention it is common to find, of course, immigration or immigration
related offenses. Also, despite the provisions of the Convention and the
overall objectives of the regime of protection, detention is a common
precedent to actual or attempted expulsion, again with little regard being
paid to the special situation of the refugee in flight from persecution.
In recent years, states have reacted negatively to increases in the numbers
of asylum-seekers, and have attempted to "stem the tide" and to deal
summarily with so-called manifestly unfounded cases. Where formal pro?
cedures for the determination of refugee status exist, measures of deterrence
have included confinement or other limitations on freedom of movement,
denial of the right to work, and reduction of assistance to the lowest possible
level, often over long periods pending final decisions on status. In other
states, it has been the overt and openly-declared policy to detain refugees
and asylum-seekers indefinitely, with no prospect of local integration or
third country resettlement; such measures often apply to specific groups
identifiable by reference to race or national origin, and already appear
tainted by breach of the principle of non-discrimination.
Finally, there is the problem of detention on political grounds, because
of an actual or perceived threat to national security or the welfare of the

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 205

community. This has both an individual and a group aspect; refu


be feared personally as the carriers of subversive ideas, or as com
because they are endowed with different racial, cultural or relig
acteristics. The conditions of detention vary greatly; refugee cam
humanely run and subject to international supervision. Individ
however, can remain unseen and the fate of those detained unknown.
Similarly, there is no uniform practice regarding appeal or review, while
access to UNHCR is not as general as article 35 of the 1951 Convention or
successive General Assembly resolutions on cooperation appear to require.
Despite some exceptions, however, there is widespread recognition of
the quality of refugee, of the existence of the legal concept and of the
consequential legal implications. There is thus continued general support
for the principle of non-refoulement, notwithstanding the illegal immigration
status which some refugees may have in some countries. While there may be
no clear evidence of broad support for any particular standard of treatment,
such a code can be derived from applicable provisions of international
refugee and human rights law.

THE DETENTION OF REFUGEES AND


ASYLUM-SEEKERS IN INTERN A TIONAL LA W

Regional differences allow for varying degrees of supervision and enf


ment but, backed overall by principles of state responsibility, the individ
now possesses a certain standing in general international law with rega
the protection of basic rights. Whatever the precise nature of the individ
dimension, nothing justifies differentiating between national and n
national in the matter of fundamental human rights?the right to life, an
protection against slavery, torture, cruel or inhuman treatment; the righ
liberty and security of the person (including protection against arbi
arrest and detention); recognition as a person before the law; equality bef
and equal protection of the law; freedom of conscience, thought and relig
The principle of non-discrimination, moreover, calls into question a
other differential treatment which may be practiced on non-nationals. Su
statements on fundamental rights, however, provoke few dissentien
Their generality accommodates many shades of opinion, and what r
counts is how the scheme of protection is worked out at the local l
particularly with regard to subsidiary rights, procedural guarantees,
the special situation groups such as refugees.

37 However, at a seminar organized by the Intergovernmental Committee for Migratio


April 1983, no agreement was reached on even the fundamental human rights which und
mented or irregular migrants should enjoy: See, ICM, Sixth Seminar on Adaptatio
Integration of Immigrants: Undocumented Migrants in an Irregular Situation, Conclusion
Recommendations (Doc. MC/ SAI/VI/ GEN/VI).

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
206 International Migration Review

The existence of refugees as a class known t


international law imports legal consequences fo
refoulement and standards of treatment. While
obligation to grant asylum in the sense of l
opportunity to integrate locally, states' genera
effectively and substantially circumscribed by the
principle. This secures admission and, in an ind
presumption that a local durable solution will b
refugee. In the case of large-scale movements while
no such presumption with regard to solutions c
In both individual and large-scale situations, i
ledges that, within limits, states may impose r
movement. Article 8 of the 1951 Convention relatin
it is true, attempts to secure exemption for refuge
which might affect them by reason merely of the
however, have entered reservations to this arti
entirely any obligation, some accept the article
while others expressly retain the right to take me
in the interests of national security.38 Article 9 in
states to take "provisional measures" on the gr
against a particular person, "pending a determin
in fact a refugee and that the continuance of such
the interests of national security".39 Despite the b
employed, several states have also further entrenc
vations to this article.40
Similar concerns have affected article 26 of the Convention, which
prescribes such freedom of movement for refugees as is accorded to aliens
generally in the same circumstances. Eight states have made reservations,
six of which expressly retain the right to designate places of residence, either
generally or on grounds of national security, public order, or the public
interest.41 Burundi, reflecting concerns shared by many African countries
and reiterated in the 1969 OAU Convention,42 acccepts Article 26 provided
refugees, a) do not choose their place of residence in a region bordering on
their country of origin; and b) refrain in any event, when exercising their

38 Ethiopia, Fiji, Finland, Israel, Jamaica, Madagascar, Malta, Spain, Sweden, Uganda,
United Kingdom. Reservations are reproduced in UN doc.ST/LEG/SER.D/13, Multilateral
Treaties in respect of which the Secretary-General Performs Depositary Functions(19Sl) pp. 123-51.

39 The language of the article is in terms of individuals, as indeed is that of the Convention at
large, but there is no formal obstacle to its application to groups of refugees.
40 Ethiopia, Fiji, Finland, Jamaica, Madagascar, Malta, Uganda, United Kingdom.
41 Reservations by Burundi, Greece, Netherlands, Rwanda, Spain, and Zambia; Botswana has
made an "open" reservation, while Iran considers art. 26 to be a recommendation only.
? Arts 11(6) and III.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 207

right to move freely, from any activity or incursion of a subversive


with respect to the country of which they are nationals.
At the 1951 Conference it was suggested that article 26 was not in
where, under a labor contract or group settlement scheme, refu
were admitted were required to remain in a particular job for a p
time.43 Such a practice today, however, would need to be examined in
of general developments and might well raise objections by refe
treaty provisions relating to freedom of movement and those aim
abolition and prohibition of forced labor.44 Although one answer to
objection may be that the individuals concerned had offered th
voluntarily for work, a refugee's frequently precarious situation
freedom of choice effectively meaningless. One commentator of the
considered that there would be no breach of article 26 in the case of
situations where refugees have to be accommodated in special cam
special areas even if this does not apply to aliens generally".45 Such m
are now the usual response, especially on the occasion of large-sca
Given the normative aspect of non-refoulement in internation
over and above the treaty context), the precise legal status of refuge
the municipal law of the state of refuge has little bearing upon its im
international obligations. That refugees frequently have no time f
gration formalities is expressly acknowledged in article 31 of t
Convention, which of all articles comes closest to dealing with th
versial question of admission. It provides that penalties on account of
entry or presence shall not be imposed on refugees "coming directly
territory where their life or freedom was threatened... provided the
themselves without delay and show good cause for their illegal
presence". One striking implication of this provision must be tha
landing of those shipwrecked at sea, the entry of refugee's in fli
persecution ought not to be construed as an unlawful act.
The term "penalties" appears to comprehend prosecution,
imprisonment, but not administrative detention, which is sanctioned
paragraph 2. Moreover, at the 1951 Conference, several represe
considered that the undertaking not to impose penalties did not excl
possibility of resort to expulsion, although states' competence in pra
clearly limited by the principle of non-refoulement. Article 31,
does not require that refugees be permitted to remain. Article 31(2)

? UN doc. E/AC. 32/SR. 11, p.6.


44 See, art. 2, 1930 ILO Convention (No. 29) concerning Forced Labor; art.
Convention (No. 105) concerning the Abolition of Forced Labor. See also art. 8(3), 19
on Civil and Political Rights; art. 4, 1950 European Convention on Human Rights. O
of movement, See, for example, art. 13, Universal Declaration of Human Righ
Covenant on Civil and Political Rights.

45 Robinson, Commentary, p. 133, n.207.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
208 International Migration Review

clear that states may impose "necessary" restrictio


would include those prompted by security consid
cumstances like a large influx.46 Such measures als
and are an exception to the freedom of movement
Article 31(2) nevertheless calls for restrictions to be
in the country of refuge is regularized,47 or admissi
country; moreover, contracting states are to allo
period and all necessary facilities to obtain such ad
clearly include access to the representatives of oth
Article 31 refers categorically to "refugees", but it
formally recognized, inasmuch as the determina
generally declarative rather than constitutive. In
procedures, if they exist, may be overburdened
occasion of a mass influx, or the state of refuge may
and other reasons, to make any formal determina
problem, however, is that Article 31 is limited to ref
the implication is that other refugees do not enjoy t
from penalties or of the limited restrictions on mov
Article 32 of the Convention, limiting the circums
resident refugees may be expelled to cases of na
order,is also relevant in this context.48 It requires th
accordance with due process of law; that some fo
generally permitted; and that the refugee should
period in which to seek admission into another c
Convention provisions, the state enjoys choice of
implementation of article 32. Thus, it may be suffici
hoc administrative procedures regulating the exercise
removal machinery in motion, so that formal incorp
on expulsion is not necessary. Moreover, some un
precise implications of the reference to decisions
process of law. The French version of the text (une d
ment a la procedure prevue par la loi) suggests that fo
law is all that is required.49 Alternatively, the conce

* Ibid., ry. 154.

47 Cf art. 9: 'pending a determination... that (the) person i


amendments introducted in Hong Kong in 1982, Vietnamese arr
who were detained were to be given 'all reasonable facilities' t
another state, or to leave Hong Kong, with or without suc
Amendment Ordinance 1982 (no. 42/82) s.7 (adding new s. 13D
48 Goodwin-Gill, Refugee, pp. 82-4, 158-62.
49 This appears to be Ireland's interpretation, as stated on ratif
to art. 32: "Without recourse to legal process the Government...s
the unfettered right to expel any refugee... and may, at any time,

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 209

may be said to include, as a minimum, knowledge of the case against one,


opportunity to be heard and a right of appeal or review.50 Finally, refuge
under order of expulsion are to be allowed a reasonable period within whi
to seek legal entry into another country, though states retain discretion
the interim to apply "such internal measures as they may deem necessary
Article 32 has both advantage and disadvantage for refugees. One expelle
for the serious reasons stated in paragraph 1 will face major difficulti
securing admission anywhere else. Return to the country of origin b
ruled out, the refugee may be liable to prosecution and detention for fail
to depart. For this reason, the Executive Committee recommended in
that expulsion be employed only in very exceptional cases. Where im
mentation of the order is impracticable, it further recommended that sta
consider treating refugee delinquents equally with national delinque
and the detention be employed only if absolutely necessary for reason
national security or public order.51

Individuals and Situations of Mass Influx

Different considerations apply to individual asylum-seekers (even w


they arrive in large numbers), and to what may be loosely called a
influx. State practice in regard to detention varies in consequence, depend
in larger measure upon the receiving country's perception of the prob
Even though detention itself is not expressly prohibited by the
Convention, states may not apply restrictions other than those whic
necessary, and only until regularization of status or admission elsewhere.
impose such measures as a general policy would be wrong in principle
least in regard to individuals. Initial restrictions on movement may
justified for administrative reasons, for example, to verify identity a
establish the basis of the claim to asylum/refugee status. Thereafter, deten
(and perhaps refusal to regularize status also) would only be permissib
there were good grounds to believe the applicant was likely to abscond
had criminal antecedents, or was a threat to national security or commun
welfare. The decision to detain would need to be justified on the facts and
escape being labeled arbitrary, must be subject to independent appe
review. Moreover, in recognition of the special situation of the refuge
or she should be accorded all facilities necessary to secure admission
third state. Those limitations on the detention power find ample support
article 31 and other provisions of the 1951 Convention.

the Government may deem necessary in the circumstances; so, however, that any action taken
the Government... in this regard shall not operate to the prejudice of the provisions of art.
50 Cf. Goodwin-Gill, Movement of Persons, pp. 227-8, 238-40, 308-9.

51 Report of the 28th Session: UN doc. A/AC.96/549, para. 53.5.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
210 International Migration Review

Even a brief study of recent United States juris


the difficulty of achieving consistent and generou
visions affecting the personal liberty of refugee
leading authority is still the Supreme Court decision
rel. Mezei, in which it was held that the continued d
but non-removable alien did not violate any stat
right.52 Various courts have been inspired to mitigat
ruling, notwithstanding its apparently clear support
In one case, it was even suggested that indefinite d
violation of international law,54 but most courts ord
themselves either on the notion of a liberty interest
power (and so attracting constitutional due proces
more general notion of abuse of discretion. While th
neither constant nor unperturbed,56 it is the refere
their innate appeal to higher standards that are of m
v. Roque Smith, for example, the District Court for
Georgia considered that the government's power
on there being clear and convincing evidence that th
to abscond, or posed a risk to national security or
threat to persons or property.57 These are precisely
argued here, derive from general international law;
framework and the outer premises of interpretat
been scarcely developed hitherto, and courts in
pronouncing on their merits.58 The established pr

52 345 U.S. 206 (1953). See, generally Note, 'The Indefinite d


statutory and constitutional justification and limitations,' 82 M
53 Section 235(b) of the Immigration and Nationality Act prov
admissible "shall be detained". Section 212(d)(5) allows the Atto
into the country, "for emergent reasons or reasons deemed stric
INS rules regarding application of this provision: 47 Fed. Reg. 300
CFR 212.5, 235.3. The rationale of Mezei was categorically reje
Canada in Singh v. Minister of Employment and Immigration (Judg
54 Fernandez v. Wilkinson bObY.Supp. 787, 798; affirmed sub. nom
654 F.2d 1382 (10th Circuit, 1981), on other grounds.
55 Louis v. Nelson, 544 F.Supp. 973 (1982); Fernandez-Roque v. Sm
Moret v. Kahn 746 F.2d 989 (3rd Circuit, 1984).

*Iean v. Nelson 727 F.2d 957 (11th Circuit, 1984); Palma v. Verd
1982).

57 567 F.Supp. 1115; See also, Fernandez-Roque v. Smith 91 F.R.D. 239 (1981), to similar effect.

58 In reversing Fernandez-Roque v. Smith 734 F.2d 576, in June 1984, the Court of Appeals (11th
Circuit) concluded that the applicants lacked a constitutional liberty interest, and it did not
examine the international law arguments. The same court, sitting en banc in lean v. Nelson
727F.2d957, took a similar line.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 211

law nevertheless offer considerable scope for the formulation


claims.
In the case of mass influx, the principles contained in article 31 remain
applicable; state practice, however reflects a general tendency to use closed
camps as an interim solution, pending repatriation or third country resettle?
ment.59 National security and community welfare arguments are usually
adduced in justification of such poli cies with the objective of "humane
deterrence" also now occurring. It may well not be reasonable or appropriate,
in a situation of mass influx, to expect either case by case determination of
refugee status or case by case review of confinement. There may also exist
reasons on the integration level why alternatives to detention cannot be used
in any particular context; but the conditional nature of these statements
should not be overlooked.
The state of refuge is well placed to appreciate the existence of a threat
and to decide on the appropriate response. The principles and precepts of
international law, however, determine whether detention was reasonably
necessary, and whether the conditions and restraints were in accordance
with prevailing standards.60 The fact that those detained are refugees,
asylum-seekers or even ordinary aliens does not expose them to treatment
at will by sovereign states. The effect of human rights developments has been
a movement away from the doctrine of inherent powers to the requirement
that measures restrictive of liberty be "prescribed by law and necessary in a
democratic society". The detention of refugees and asyulum-seekers is never
an appropriate solution to their plight. The power to detain must be related
to a recognized object or purpose, and there must be a reasonable relationship
of proportionality between the end and the means. Indefinite detention as
part of a program of "human deterrence" is unlikely ever to be either
legitimate or humane. There is also an inherent limit to the range of
permissible measures which may be applied to groups or individuals with a
view to stemming an influx of manifestly unfounded applications for refugee
status. While not denying the validity of the state or community interest,
wholesale restrictions on personal liberty must remain suspect. An alternative
answer to the numbers problem is an increase in resources. As one com?
mentator has observed, there is a moral difference between harming things
of value in general and wronging human beings by denying them their
rights.61

59 There are a number of notable exceptions, including the use of 'settlements'' with a
self-sufficiency component in Africa, Central America and Pakistan.

60 No formal supervisory or investigative institution exists, of course, competent to oversee such


situations. The existence of general obligations is nevertheless sufficient to give locus standi and
a claim to be heard to the international community, UNHCR and other protecting agencies.
61 Benn, S.I. "Human Rights - for whom and for what?", (above note 2), p. 64.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
212 International Migration Review

Conditions of Detention and Standards of Trea

Enough has been said regarding the scope and ap


human rights; nothing justifies their denial to ref
There has been long-standing recognition, moreove
of the human person, a basic conception of humani
influence upon the content of law. That notion
human rights instruments, and appears particularly
to regulate direct relations between individuals
In view of the particular value placed upon h
surprising to find that the United Nations h
promoting standards of treatment on behalf of th
otherwise expose them to abuse. Within the bod
even if only at the level of "soft law", are the U.N
for the Treatment of Prisoners, the Code of Co
Officials and the Principles of Medical Ethics relev
Personnel, particularly Physicians, in the Prot
Detainees against Torture and Other Cruel,
Treatment or Punishment.62
The Standard Minimum Rules, for example, set out what may be
considered "good principle and practice in the treatment of prisoners". As
the title implies, they are oriented principally toward the situation of
convicted prisoners; but if such is required in their regard, no less can be
adequate for the unconvicted detainee, or the refugee or asylum-seeker
whose only offense, if any, may have been to enter the country "illegally"
when in flight from persecution. The Rules concern themselves with basic
requirements: provision of sleeping accommodation; clothing and bedding;
personal hygiene facilities; food and water; opportunities for exercise and
access to medical and dental services. The Rules recognize, and conditions
for detained refugees would likewise require, that special provision be made
for women and children. Where measures to maintain order are required,
none should be exposed to cruel, inhuman or degrading treatment; again,
special protection may be necessary for women, children and young persons.
Prisoners are to be allowed contact with the outside world, an opportunity
of special value to refugees who are not only detained but also often cut off
from their cultural and linguistic background. Just as vocational training is
called for in the case of prisoners, so may equivalent support be due to
refugees, that they may be better equipped to start a new life in another
country or to take up the old. In regard to refugees there can be little or no
justification for enforcing the separation of families; indeed, the family is

62 Texts in United Nations, Human Rights: A Compilation of International Instruments: UN doc.


ST/HR/1/REV. 2 (1983), pp. 75, 83, 86.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 213

recognized in human rights instruments as being the fundamental un


society, deserving special measures of support and protection.63
Convicted prisoners may be required to work, subject to physical a
mental fitness. No such obligation should be imposed upon refugees
asylum-seekers, although work opportunities and participation in self-
ficiency programs may be called for, depending on the nature of the partic
refugee problem and the prospects for solutions. In any event, refugees an
asylum-seekers should not be subject to any regime of forced or compulso
labor. In 1984 the ILO Committee of Experts noted that accordin
legislation in the Federal Republic of Germany, asylum-seekers may
called upon to perform "socially useful work" if they wished to main
welfare entitlements. This practice, declared unlawful in earlier cou
decisions, was approved by the Hamburg Oberverwaltungsgericht (Hig
Administrative Court) in 1982. The Committee of Experts expressed
hope that the government would indicate the measures it was taking to br
law and practice into conformity with ILO Convention No. 29 on Fo
Labor (1930).
In 1981, the Executive Committee of the High Commissioner's program,
acting on the recommendations of the Sub-Committee of the Whole on
International Protection, adopted a series of conclusions on the protection of
asylum-seekers in situations of mass influx.64 These embody some sixteen
"basic human standards", geared in particular to the objective of attaining a
lasting solution to the plight of those admitted. The Executive Committee
endorsed, as a matter of priority, the paramountcy of the principle of
non-refoulement, including non-rejection at the frontier, and its application
in accordance with the principle of non-discrimination.
It also recommended that asylum-seekers be located by reference to their
safety and well-being, as well as the security of the state of refuge; that they be
provided with the basic necessities of life; that the principle of family unity
be respected and that assistance with tracing of relatives be given; that
minors and unaccompanied children be adequately protected; that the
sending and receiving of mail, and receipt of niaterial assistance from
friends be allowed; that, where possible, appropriate arrangements be made
for the registration of births, deaths, and marriages;65 that they be permitted
to transfer to the country in which a lasting solution is found, any assets
brought into the country of temporary refuge; and that all necessary facilities

63 See, art. 16, Universal Declaration of Human Rights; art. 10(1), Covenant on Economic,
Social and Cultural Rights; art. 23, Covenant on Civil and Political Rights.
64 Report of the 32nd Session: UN doc. A/AC.96/601, para. 57.
65 This may go some way towards remedying problems of statelessness otherwise likely to
occur. Practice varies; in camps in Thailand, for example, UNHCR assumed responsibility for
issuing certificates of birth, marriage and death, while in Malaysia this function was undertaken
by the local authorities.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
214 International Migration Review

be granted to enable the attainment of a satis


including voluntary repatriation. The recomme
oriented towards solutions, are not of a normat
Committee was somewhat more peremptory, ho
cooperation with UNHCR: "Asylum-Seekers shal
Office of UNHCR. UNHCR shall also be given t
its function of international protection and shall
well-being of persons entering reception or oth

Due Process of Law

Some doubt remains as to the degree of due proces


refugees and asylum-seekers subject to detention.
the insistence with which human rights instrume
detention be in accordance with and authorized
principle, which itself constitutes the first protec
ment, is the further requirement that the practic
effective control by independent judicial author
The remedies oiamparo and habeas corpus are am
developed to control the legality of measures o
however, courts are unable to penetrate the appear
of the executive may be a sufficient return to the
appeal or review on the merits may be allowed. In
international law relating to what is reasonable an
society would acquire greater importance, wer
supervisory machinery is generally unavailable
by agencies such as UNHCR then becomes espe
support can be found for the principle that the qu
to review less support is evident for full-scale
practice, particularly in situations of mass influx,
of legal remedies or their use. Political realities
their exercise quite pointless.
Account must also be taken of arguments that n
entitled to a lesser standard of procedural fairn
members of the body politic.68 The view from th
tional law is somewhat different. The principle of
and the norm of non-discrimination require th

66 See, for example, art. 9, Covenant on Civil and Political R


on Human Rights; art. 2, Protocol No. 4 to the European Conv
on Human Rights; art. 6, African Charter on Human and P
67 UN doc. EICN.4/826/Rev. 1 pp. 487-703.
68 Jean v. Nelson 727 F.2d 957 (11th Circuit, 1984); See also Mar
of aliens', (above, note 8).

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 215

degree of justice to particular groups or individuals should be called


question, and cast doubt on each and every denial of substantive or proce
rights requires, at the least, a case-by-case consideration of claims, an
recognition that to all persons now certain special duties are o
de terminable according to membership, but according to the charac
the right in question. To many rights, legitimate exceptions attach, but
lawfulness of the latter in a given case depends upon their bearing a reaso
relationship to some greater community interest. Certainly commu
retain discretion in the process of self-definition, but other, perhaps weig
principles also abound. The individualized aspect of fundamental hu
rights requires, at the least, a case-by-case consideration of claims, a
recognition that to all persons now certain special duties are owed.

Protection of the Detained

In 1950, the General Assembly formally adopted the Statute of UNH


an annex to Resolution 428(V), in which it called upon government
cooperate with the Office. The functions of UNHCR encompass "prov
international protection" and "seeking permanent solutions" to the probl
of refugees. The protection function is expressly recognized by states pa
to the 1951 Convention and or the 1967 Protocol relating to the Sta
Refugees. Article 35 of the Convention, for example, provides
contracting States undertake to cooperate with the Office of the
Nations High Commissioner for Refugees... in the exercise of its fun
and shall, in particular, facilitate its duty of supervising the applicat
the provisions of this Convention". The 1969 OAU Convention requ
member states to cooperate similarly, while declaring itself to be the "eff
regional complement in Africa" of the 1951 Convention. Moreover
protection function has been clearly acquiesced in by states who are not
to the relevant refugee instruments.
Consequently, UNHCR has the necessary legal standing to interv
with states on behalf of refugees and asylum-seekers under deten
Although its mandate is formally limited to a defined class of refugees,
combined effect of General Assembly resolutions, state, and interna
organization practice has been to expand the category of persons on
behalf UNHCR may claim to exercise protection.69 In many ways, U
acts much as does a national consul, although formal recognition of this
was a divisive issue at the 1963 United Nations Conference on Consular

mSee, generally, Goodwin-Gill, Refugee, chs6-8. Cf. the comparable protection functions which
may be exercised by the International Committee of the Red Cross on behalf of interned enemy
civilians or other protected persons. Note in particular arts. 41, 78, 132-4, Fourth Geneva
Convention (1949); art. 75, First Protocol (1977); arts 4-6, Second Protocol (1977).

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
216 International Migration Review

Relations70 and no article thereon was agreed. The


on Consular Functions has gone some way, inter
against the exercise of consular functions by consu
refugees' country of origin.71 Article 2(2) of t
convention, moreover, expressly recognizes a prote
of refugee's state of habitual residence, "in consult
with the Office of the United Nations High Com
Notwithstanding the general acquiescence in U
attempts to avoid formal recognition continue. The
General Assembly is currently debating the form
principles for the protection of all persons under
imprisonment.73 Certain crucial issues, such as t
have been postponed for later discussion; so far, ho
principles have emerged from Working Group
lations.74 At its 1983 session, the Working Group c
the right of foreigners and refugees to contact
post or the office of the competent international
expressed on the appropriateness of any refer
reference was made in article 36 of the Vienna Convention on Consular
Relations and such a reference was not necessary, since refugees fall into th
category of foreigners, anyway. Other participants stressed tha trefug
were a special category, entitled to the protection of UN agencies.
consensus was forthcoming, however, and the references to refugees emerge
within square brackets.75 Similarly, no consensus has emerged on the sa
issue in the Sub-Commission on Prevention of Discrimination and Protection
of Minorities, which currently has under study a draft Declaration against
Unaknowledged Detention.76

70 See UN doc. A/CONF.25/L6, setting out UNHCR's position.


7i ETS No. 61, art. 47.

72 Lee, Luke T.' The Movements of People and Consular Protection'. Paper presented to the
Round Table on the Movements of People, Florence, June 14-18, 1983, held under the auspices
of the International Institute of Humanitarian Law.

73 The origins of the work can be traced back to the study frequently cited above (see note 22).
74 The relevant drafts are annexed to UN Doc. A/C.6/39/L.10. See also, UN docs. A/34/146,
A/35/401, A/C.3/35/14, A/C.6/36/L.16, A/C.6/37/L.16, A/37/701, A/38/388, Add.l, Add.2,
A/C. 6/38/L.8.

75 UN doc. A/C.6/38/L.8. Report of the Working Group, (1983) paras 11,21,23. In an earlier
session, the Working Group deleted the reference to "other persons" as a category to whom a
question of breach of the principles could be reported. Such category would have doubtless
included the Red Cross, human rights groups and agencies such as UNHCR: UN doc.
A/C.6/36/L.16, Report on the Working Group (1981), paras 37-46.
76 The Administration of Justice and the Human Rights of Detainees; Working Group on
Detention: UN doc. E/CN.4/Sub.2/1984/16, paras. 26-8. See also, the synopsis of material provided
by non-government organizations: UN doc. E/CN.4/Sub.2/1984/13, para. 60. This concludes,

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 217

CONCLUSIONS

Any movement aimed at reducing the protection of refugees and asy


seekers gives cause for concern, but the standing of relevant principle
general international law cannot, at present, be disputed.77 It follows
from UNHCR's protection function and from its role in finding solut
that access to detainees should be granted, and information given wheneve
refugees and asylum-seekers are detained. Detention itself is no solutio
either the remedial or the preventive sense. It is symptomatic of a variety
real problems and needs covering the broad range of movements of pe
and cannot be separated from causes or from the necessity to find approp
durable solutions. Here, yet again, principles of international solidarity
burden-sharing may offer a basis for the improvement of the lot of refu
and asylum-seekers. The detailed working out of their fate, however,
need scrupulous observance of fundamental humanitarian principles.
States are bound by a complex set of duties with regard to the treatment
be accorded to persons within their territory and jurisdiction. Special duti
are owed to nationals and also to the class of refugees. The latter, fo
example, are protected by the principle of non-refoulement save in ex
tional circumstances. While not formally obliged to gram them asylu
the sense of a lasting solution, states are bound to treat refugees
asylum-seekers according to certain well-defined standards, and to al
and contribute to, an answer to their plight.

APPENDIX

The broad range of problems associated with the detention of refugee


asylum-seekers was examined by a Working Group convened in Floren
June 1984 by the International Institute of Humanitarian Law and h
under the auspices of the Office of the United Nations High Commiss
for Refugees. The report of the Working Group was noted with approval
the participants of the Tenth Round Table on Current Problems of In
national Humanitarian Law which was held by the Institute in San R
from September 17-20, 1984. The Round Table commended the follow

inter alia, that mass detention is frequently employed as a means of intimidation, an


detention incommunicado and without trial increase the risk of ill-treatment.

77 Cf. Draft European Convention on the Protection of Detainees from Torture and from cruel,
inhuman or degrading Treatment or Punishment: Council of Europe, Parliamentary Assembly,
Rec. 971 (1963); also the conclusions on the detention of refugees and asylum-seekers of the Tenth
Round Table on Current Problems of International Humanitarian Law (1984), annexed to the
present article.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
218 International Migration Review

observations and conclusions for the considera


international organizations:
1. The automatic or indiscriminate detention
reason, of refugees and asylum-seekers who are
is at fundamental variance with the notion of p
of refugees and asylum-seekers should only b
tional measure and should only be maintaine
required by the exigencies of the situation.
2. Entry in search of refuge on account of pers
other event seriously disturbing public orde
unlawful act. Detention in such circumstance
illegal entry or presence is, therefore, unjusti
3. In the case of individual asylum-seekers, a r
deprivation of liberty may be unavoidable to
bonafide nature of the asylum claim. Otherwise
envisaged in cases where action is being take
deportation or extradition and where there ar
criminal association or intent or a reasonabl
person is likely to abscond.

4. In all cases, detention of refugees or asylum-s


administrative re-examination and judicial re
national law and relevant international oblig
should be notified of their legal rights in a
understand and they should also have access
representative of the United Nations High Com
Where justified, they should be granted prov
conditions.

5. The observations in paragraphs 3 and 4 do not affect the question of


detention in cases of arrest in general criminal proceedings or admi?
nistrative detention arising from other provisions of national law which
are not in violation of international law.

6. In situations of large-scale influx, restrictions on freedom of movement


might also be unavoidable, but should similarly be strictly limited to the
requirements of the circumstances. The conditions of such restrictions,
however, should in no case fall below the basic minimum standards
identified by the Executive Committee of the United Nations High
Commissioner for Refugees' Program at its 32nd Session in 1981.*

* Report of the Executive Committee, 32nd Session: UN doc. A/AC.96/601, para. 57(2)IIB.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms
International Law and the Detention of Refugees 219

7. In order to ensure that they are not exposed to unjustified m


detention, it is essential that refugees be identified as such. In s
of large-scale influx where individual determination of statu
be feasible group determination should be made. In the case of i
asylum-seekers, appropriate procedure for the determination of
status should be established. Such procedures should be as ex
as possible so as to ensure that any measures of detention are no
prolonged.

8. Measures of detention should not be applied in a manner wh


the principle of non-discrimination, nor should detention be res
in order to deter further refugee movements.
9. Refugees and asylum-seekers should never be used as a buffer
armed conflict or confined to areas where their physical s
threatened.

10. In cases of detention, refugees and asylum-seekers whose status has not
yet been determined should continue to benefit from the principle of
non-refoulement and their human rights should be respected. Refugees
and asylum-seekers should not be subject to forced or compulsory
labor. Whenever possible, national authorities?if necessary with
international assistance?should provide suitable opportunities for work
and education, as well as conditions which respect their religious and
cultural identity and personal dignity.

11. Competent national authorities should inform UNHCR promptly of


all cases of detention of refugees and asylum-seekers and allow access to
such detainees; they should also permit UNHCR to supervise the
well-being and protection of the inhabitants of refugee camps. UNHCR,
intergovernmental agencies and other non-governmental agencies
concerned with the welfare of refugees should be afforded an effective
role based upon close cooperation with States of refuge.

12. International solidarity and cooperation are of paramount importance


in refugee situations. The effective implementation of the principle of
solidarity may facilitate the solution of problems of detention of refugees,
in particular in cases of large-scale influx. All States, therefore, should
promote appropriate solutions by way of voluntary repatriation, local
integration or third country resettlement.

This content downloaded from 14.139.237.35 on Thu, 15 Feb 2018 20:40:31 UTC
All use subject to http://about.jstor.org/terms