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Information Note on the Development of UNHCR's Guidelines on the Protection Aspects of Voluntary Repatriation
EC/SCP/80

International Protection (SCIP), 3 August 1993

I. INTRODUCTION

1. The Executive Committee of the High Commissioner's Programme has repeatedly affirmed the importance of voluntary repatriation, when feasible, as the preferred durable solution to refugee problems and has called upon the High Commissioner and States to continue their cooperative efforts to achieve this solution whenever feasible. Implicit in this affirmation is a recognition of the need of people who have been forced to flee their country of origin for the support of the international community in securing conditions which will permit their voluntary return in safety and dignity.

2. Over the years, the Executive Committee has played a major role in galvanizing international interest in achieving the solution of voluntary repatriation. Executive Committee Conclusions 18 (XXXI) and 40 (XXXVI) lay down the fundamental protection principles and also put forward practical proposals for assisting the High Commissioner to promote voluntary repatriation. These are by now widely accepted in State practice, and have been instrumental in the development of coherent repatriation doctrine. The two Conclusions underlined the importance of promoting and facilitating voluntary repatriation for solving the refugee problem, provided States accept their responsibilities with respect to refugees.

3. An important issue which the Executive Committee at its thirty-sixth session suggested as requiring closer examination was the question of consolidating the recognized principles with the considerable experience which UNHCR has acquired over the years in planning and implementing voluntary repatriation programmes throughout the world. This issue was subsequently given careful consideration within the Sub-Committee of the Whole on International Protection. At its meeting of 13 and 14 April 1992, the Sub-Committee agreed that it would be desirable for UNHCR to codify the existing protection principles and the lessons learned from the Office's operational experience in a single document to guide voluntary repatriation. The Sub-Committee noted that such guidelines should be sufficiently flexible to cover the various situations of refugee repatriation.

4. Following the Sub-Committee's deliberations, the Office proceeded with the task of initiating the preparation of the proposed guidelines on the protection aspects of voluntary repatriation. A preliminary draft of the guidelines has recently been completed and subjected to an extensive consultative process involving a detailed review by a range of entities and individuals both inside and outside UNHCR. Comments and suggestions arising from the consultative process are being considered at the present time and it is hoped that the guidelines will be issued in final form before the end of 1993.

5. The purpose of this Note is to apprise the Sub-Committee of the course of action followed in the drafting process and to share some of the main points that will be covered in the guidelines.

II. THE PROCESS OF DEVELOPING THE GUIDELINES

6. In order to define the precise scope and content of the guidelines, the Office undertook, as a first step, a thorough analysis of the experience accumulated in the field in promoting and facilitating voluntary repatriation. The skills and knowledge derived from this experience were synthesized in a training module on voluntary repatriation which was completed and circulated to staff at the beginning of 1993. The training module covers several aspects of voluntary repatriation, with particular emphasis on operational issues concerning the planning and implementation of large-scale repatriation programmes.

7. Following the production of the training module, the Office, with the support of a private foundation, organized a round-table consultation on voluntary repatriation from 2 to 3 June 1993. The consultation brought together academics, representatives of international and national non-governmental organizations (NGOs), and UNHCR staff involved in major repatriation operations in different parts of the world. Participants reflected on a number of critical protection issues, ranging from the importance of the refugee's voluntary decision to repatriate and ways to contribute to the decision-making process, to the particular challenges with which UNHCR is confronted in situations of voluntary repatriation during conflict. Also examined was the question of how to strengthen UNHCR's activities in countries of origin so that it can ensure that voluntary repatriation will be a lasting solution, inter alia, through monitoring the situation of returnees on behalf of the international community.

8. The round-table consultation supplemented the materials already compiled in the training module, and together they provided a useful basis for drafting the guidelines on the protection aspects of voluntary repatriation.

III. BASIC OUTLINE OF THE GUIDELINES

9. Complementary to the training module, the guidelines are intended to serve as a reference tool setting out the generally accepted legal and protection principles, and detailing practical steps to be followed in applying these principles to different repatriation situations.

10. At the beginning of the guidelines, a general overview and assessment of recent and contemporary experience and practice concerning voluntary repatriation will be presented. A review of some of the major repatriation operations assisted by UNHCR is especially useful in drawing a number of practical lessons which could assist present and future repatriation programmes.

11. The second part of the guidelines will establish the general legal framework within which the question of voluntary repatriation is situated. The analysis will show the links between the substantive concerns of refugee law, the responsibility of States, and the principles of international human rights law which enjoin respect for and protection of the individual's well-being, integrity and human dignity.

12. The balance of the guidelines will deal with the practical aspects of the promotion and facilitation of voluntary repatriation. First, an effort will be made to clarify the scope of certain terms used to describe UNHCR's operational activities in this domain, e.g. "promotion," "facilitation" and "encouragement". In the same vein, the distinction between "organized" and "spontaneous" repatriation will be considered. Experience shows that refugees often decide of their own free will to repatriate under unstable and even unsafe conditions. In such situations, UNHCR may be called upon to "facilitate" voluntary repatriation, but without encouraging it. UNHCR's involvement in "facilitating" such repatriation does not mean that other refugees from the country concerned no longer require international protection.

13. Secondly, consideration will be given to the question of how conditions conducive to voluntary repatriation may be promoted through initiatives at both the national and international levels. Aspects examined will include the forms which such initiatives can take, the role and responsibilities of the various parties to a refugee situation, and when and how UNHCR should become actively involved. There are undoubtedly significant lessons to be drawn from past experience in situations where UNHCR's solution-oriented activities in countries of origin have helped create "humanitarian and non-political space" within which all parties involved had the opportunity to engage in constructive dialogue to resolve their underlying differences.

14. Thirdly, particular attention will be given to the tripartite negotiation process and the usefulness of tripartite commissions. Issues addressed here will include the advisability of establishing a tripartite commission at the very inception of a refugee situation, the possibility of formal representation by the refugees themselves in such commissions, the content of tripartite repatriation agreements and the need for follow-up mechanisms. In addition to the principles and standards enunciated in the relevant Conclusions of the Executive Committee, lessons will be drawn from past UNHCR experience and State practice regarding repatriation agreements.

15. Finally, there will be an analysis of how the voluntary repatriation of refugees may be accomplished, including how any agreements reached may be effectively implemented. Specific issues will include: how to disseminate adequate information relating to the repatriation, practical means of verifying voluntariness in large-scale repatriation movements, the process of registering refugees wishing to repatriate, how to ensure return in safety and dignity, the provision of initial rehabilitation and reintegration assistance, effective monitoring of the safety and general treatment of returnees, the duration of UNHCR's involvement, and the question of residual caseloads. Particular regard will be given to the role of UNHCR in all of these matters, as well as to the role and responsibilities of the countries of origin and asylum.

IV. CONCLUSION

16. Voluntary repatriation is not simply a question of logistics and relief; it is a long-term, multi-dimensional and complex process calling for a range of closely intertwined and mutually reinforcing responses from various actors to cover the protection and assistance needs of repatriating refugees. UNHCR continues to stand ready to make use of the existing legal framework in order to commit itself more forcefully to ensure that voluntary repatriation indeed results in a truly durable solution to the refugee problem.

17. The Office is persuaded that the Guidelines on the Protection Aspects of Voluntary Repatriation will enhance the skills and knowledge of protection staff involved in current or future repatriation operations. The guidelines cannot be expected to provide definitive answers to all questions arising from all types of refugee situations; rather, they will offer general guidance as to the issues, questions, legal parameters and practical considerations which should be taken into account when planning and implementing a voluntary repatriation programme. By doing so, and used in conjunction with other pertinent documents, they aim to promote effectiveness and consistency in UNHCR practice.

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