Article 14(2) of the Universal Declaration of Human Rights and Exclusion from International Refugee Protection

Abstract

Article 14(2) of the Universal Declaration of Human Rights provides that the right to seek and to enjoy asylum, as guaranteed in article 14(1), “may not be invoked in the case of prosecution genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations”. As an expression of the concept that certain persons who flee persecution are nevertheless denied international protection as refugees because of their involvement in certain serious crimes, article 14(2) of the Universal Declaration represents an “exclusion” provision. The notion that such persons are unworthy of international protection and assistance as refugees emerged during the Second World War and, from the outset, formed part of the definition of the term “refugee” in the international refugee protection regime developed from early 1946 to July 1951. Like its forerunners in a General Assembly resolution and the Constitution of the International Refugee Organization of 1946 and subsequent provisions in the 1950 Statute of the Office of the United Nations High Commissioner for Refugees and the 1951 Convention relating to the Status of Refugees, article 14(2) of the Universal Declaration reflects the concern that those involved in war crimes, crimes against humanity, and crimes against peace, or more generally acts contrary to the purposes and principles of the United Nations should not be able to enjoy such protection, and that common law criminals should be surrendered under applicable extradition agreements. A review of the drafting history of these provisions also reveals how the concept of exclusion from international refugee protection was shaped by the understanding of the concept of asylum, which was viewed at the time as the right of States not to extradite certain persons. The adoption of the Refugee Convention resulted in a significantly different legal framework for determining whether or not an individual should be granted, or excluded from, international protection against persecution, which entailed, among other things, a separation of the criteria governing exclusion from those applicable to extradition. Subsequent developments in international human rights law and other pertinent areas of international law also had an impact on the interpretation and application of exclusion provisions. Accordingly, in today's context, the scope and content of the limitations to the right of asylum provided for in article 14(2) of the Universal Declaration must be read in light of article 1F of the Refugee Convention as well as other relevant standards under international law.