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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
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International Law and the Detention
of Refugees and Asylum Seekers
Guy S. Goodwin-Gill1
Office of the United Nations High Commissioner for Refugees
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
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194 International Migration Review
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International Law and the Detention of Refugees 195
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
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".
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196 International Migration Review
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.
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International Law and the Detention of Refugees 197
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.
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198 International Migration Review
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.
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International Law and the Detention of Refugees 199
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200 International Migration Review
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International Law and the Detention of Refugees 201
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202 International Migration Review
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.
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International Law and the Detention of Refugees 203
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204 International Migration Review
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International Law and the Detention of Refugees 205
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206 International Migration Review
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.
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International Law and the Detention of Refugees 207
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208 International Migration Review
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International Law and the Detention of Refugees 209
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.
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210 International Migration Review
*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.
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International Law and the Detention of Refugees 211
59 There are a number of notable exceptions, including the use of 'settlements'' with a
self-sufficiency component in Africa, Central America and Pakistan.
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212 International Migration Review
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International Law and the Detention of Refugees 213
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.
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214 International Migration Review
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International Law and the Detention of Refugees 215
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).
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216 International Migration Review
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,
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International Law and the Detention of Refugees 217
CONCLUSIONS
APPENDIX
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.
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218 International Migration Review
* Report of the Executive Committee, 32nd Session: UN doc. A/AC.96/601, para. 57(2)IIB.
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International Law and the Detention of Refugees 219
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.
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