NGO Contribution to the General Debate
53rd Session of the Executive Committee of the High Commissioner's Programme
2 October 2002
This NGO statement is delivered on behalf of ICVA and is the result of a consultation with a wide range of NGOs. While it cannot reflect all of the views of the many different NGOs represented here, it does present issues and concerns on which there is broad agreement.
We come to this Executive Committee (ExCom) meeting in the face of an ongoing protection crisis. Borders are closing to refugees in many parts of the world, whether through interception or interdiction, legislative measures, or the use of police or armed services. Many asylum-seekers are finding that instead of the protection sought, they are being treated as if they were criminals and, in some cases, are being detained indiscriminately and in violation of international human rights standards. For many, asylum is an empty promise and effective protection and durable solutions are available in too few situations. Unless there is a compelling strategic interest for intervention, we are all too often seeing situations where developing countries, hosting the majority of the world's refugees, cope on their own with inadequate resources - a lack of resources that seriously compromises protection. Yet, it is in the long-term interests of all States to ensure that refugees are effectively protected and that durable solutions are found.
We have watched States that were previously upholders and champions of human rights, discard these values in favour of short-term political and strategic ends. This is doing long-term damage to refugees themselves and social cohesion more widely. Policies and practices that illustrate this short-sightedness include: closed and guarded borders to prevent access to asylum-seekers; screening practices that deny fair and efficient refugee status determination (RSD) procedures; restrictive interpretations of the Convention; denial or prejudicial limitations on appeal rights; expansion of grounds for detention; the provision of restrictive temporary protection (including the denial of family reunion and the right to travel); and other forms of discrimination, including on the grounds of race, religion, ethnic or national origin, or other status such as health (including HIV/AIDS status) and disability.
UNHCR and Funding
For UNHCR to carry out its protection and assistance mandate effectively, States must provide UNHCR with the required financial support. Likewise, the comprehensive implementation of the objectives of the Agenda for Protection largely depends on the political and financial will of States.
It is of great concern to NGOs that UNHCR's significantly reduced programme budget means that standards, such as the Sphere Standards, so carefully crafted in consultation with operational partners, cannot be met. For example, there is not enough adequate shelter to provide for privacy, safety, and dignity. In addition, there are not enough resources for registration or protection needs identification. This results in a further erosion of social structures, which in turn can lead to further violence in refugee and host communities. Where UNHCR is inadequately funded, the complex task of providing refugee protection is undermined, not least by serious personnel shortages. NGOs call on States - as major donors - to ensure that sufficient resources are provided to UNHCR to enable it to fulfil its mandate.
Agenda for Protection
As noted during the June session of the Standing Committee, NGOs welcome the Agenda for Protection and welcome the reaffirmation by States of their commitment to the 1951 Convention Relating to the Status of Refugees during the Global Consultations process. We agree with UNHCR that the Agenda is not a blueprint for solving all protection problems, but it is an important tool in combating the negative measures that inspired the Global Consultations in the first place.
NGOs stand ready to fulfil their responsibilities in monitoring and reporting on its implementation, as well as to play their part in undertaking actions to operationalise the Agenda.
We have heard conflicting views of what "Convention Plus" might be. Therefore, this issue requires clarification and elaboration. If, however, this initiative seeks to prevent movements of refugees from countries of first asylum where they are not safe and their human rights are not protected, the "Convention Plus" initiative may unnecessarily curtail the right to seek and enjoy asylum. The initiative may also allow States to shirk their responsibilities under the Convention towards refugees who arrive spontaneously. The priority should be to provide the best quality protection to refugees, irrespective of where they are or how they arrive. NGOs wish to emphasise that it is critical that human rights standards, including social, economic, and cultural rights, which States are responsible for upholding, remain at the core of follow-up to the Global Consultations.
We would also emphasise that developments and processes such as "Convention Plus," as well as "UNHCR 2004," should not deflect attention from, or compromise, the implementation of other aspects of the Agenda. Moreover, recognising that some of the most compelling contemporary forms of racism and xenophobia are against refugees, asylum-seekers, and migrants, as acknowledged in the Agenda for Protection, we would urge States to ensure complementary follow-up in the context of the World Conference Against Racism.
During discussions in the UNHCR-NGO pre-Executive Committee Consultations, NGOs felt that a concrete step forward in implementing the Agenda for Protection would be the setting of standards for the public evaluation of States Parties' compliance with their obligations to refugees. Such standards, which would refer to the 1951 Convention and other instruments relating to refugee protection, could be established by UNHCR and States through the Executive Committee.
In this respect, and taking account of our earlier comments on "Convention Plus," NGOs welcome the proposal of the High Commissioner to set up a Forum for discussion on the implementation of the Agenda for Protection. We look forward to participating in the discussions on the mechanism and its operation and to active involvement in the Forum.
Internally Displaced Persons (IDPs)
There remains a pressing need, amongst others, to address the obstacles, threats, and attacks not only against IDPs themselves, but also against those who offer humanitarian aid. In Colombia, for example, on conservative estimates, an additional 168,000 people became displaced in the first six months of 2002. At the same time, more than half of the world's 27 million IDPs are in Africa, with large numbers in Angola and Sudan. It must be stressed that UNHCR is only working for a small proportion of IDPs world-wide.
We appreciate the recent openness with which UNHCR has shared information on its role and responsibilities for the IDP populations with which it is working. We strongly urge that, in the near future, there be a more predictable articulation by UNHCR of the IDP situations in which it will become involved. In many cases, even if three green lights appear, UNHCR seems to see yellow or red. We encourage UNHCR to collaborate with the Office of the High Commissioner for Human Rights (OHCHR), the Office for the Coordination of Humanitarian Affairs (OCHA), and development organisations in carrying out its work with regard to IDPs.
Women and Children
While progress in the implementation of UNHCR's Guidelines for Refugee Women and Refugee Children has been made, there are still major gaps in their application. For women and children, particularly girls, the gap between standards and practice continues to threaten their lives and the lives of their families and communities, including increasing their vulnerability to trafficking and other forms of exploitation. As the evaluation on the impact of UNHCR's activities in meeting the rights and protection needs of refugee children shows, a community-based approach is essential for child protection to work. NGOs look forward to discussing the plan of action for the implementation of the recommendations of the evaluation.
Sexual Violence and Exploitation
Women and children continue to be at the greatest risk of sexual exploitation and abuse. We welcome the appointment of a focal point to coordinate actions in the wake of the West Africa study, as well as follow-up evaluations relevant to it. Child protection, however, must be institutionalised throughout the organisation, for example by strengthening the critical link between community services and the Department of International Protection. As the High Commissioner pointed out in his address to ExCom, the number of female staff in the field must be increased in order to improve the protection of refugee women and children.
It must be recognised, however, that sexual violence and exploitation cannot be separated from the range of protection issues facing refugees and displaced people. While we are committed to working towards the implementation of the Inter-Agency Standing Committee's (IASC) Plan of Action, we believe that additional steps are required if this serious issue is to be effectively addressed. We must ensure that the prevailing culture of sexual violence against refugees and IDPs in camps and urban areas is put to an end. Rape, child sexual abuse, and the exchange of food for sex must not be tolerated and perpetrators must be brought to justice. The common elements for codes of conduct developed within the inter-agency context are vital in furthering the accountability of humanitarian organisations and their staff.
A number of NGOs have continuing difficulty with the lack of reference in many codes to the fact that sexual relationships between humanitarian workers and beneficiaries must not occur. Where an imbalance of power exists in a relationship, consent cannot be assumed and humanitarian workers have heightened obligations.
Addressing the question of onward movements must start from the presumption that people, including refugees and asylum-seekers, move. The international community must not lose sight of the fact that refugees are entitled to protection whatever their location: in a refugee camp, in an urban area, in a neighbouring State, or in another country of asylum. They are also entitled to seek protection. Conclusion 58 of this Executive Committee provides clear recognition of this fact.
Nevertheless, the onward movement of asylum-seekers and refugees in search of effective and durable protection has become a key preoccupation of many States, particularly as States, such as Australia and certain States in the EU, make assumptions about the reason behind, and motivation for, such movements. Many States are responding in the name of combating smuggling and trafficking by closing, or threatening to close, their borders and taking measures that prevent refugees from seeking asylum. Meanwhile, they give too little attention to addressing the causes of continuing movement that arise from a lack of adequate protection in countries of first arrival. As long as refugees are unable to obtain effective protection, his/her movement - no matter how many borders may need to be crossed - should be regarded as primary, not secondary movement.
In addressing the causes of onward movements, States must look at their role in responsibility-sharing. Industrialised States are host to a small proportion of the world's refugees. Developing countries, on the other hand, struggle to host the vast majority. No industrialised State in this room would wish to see developing countries forego their international obligations, but unless there is greater active responsibility-sharing (including through the increased availability of resettlement), we will not see any enduring changes. Refugees will continue to be compelled to look beyond countries of first arrival for effective protection.
Responsibility-sharing and building protection capacities can minimise the need for onward movement, but it will not eliminate it nor will it result in change overnight. Responsibility-sharing must, however, never be viewed as a means by which States can trade off their international obligations through the provision of financial resources to developing countries. Moreover, quick fix unilateralism, or indeed bilateralism, is no substitute for true responsibility-sharing.
Where is the Protection Focus?
NGOs are concerned that measures that should have a protection orientation are being manipulated to serve State-centric purposes. For example, in some regions, including Eastern Europe and the Asia Pacific, the training of border officials has been designed either to prevent people from leaving a country of first arrival to seek protection elsewhere, or to prevent the entry of onward movers. At the same time, there is little focus on ensuring the application of human rights norms, seeking solutions to protection needs, or guaranteeing refugees' entitlements.
Registration is an important tool in protection. However, biometric data collection, retina scanning, and electronic tagging, are amongst a variety of methods now being explored by a number of States not for protection purposes, but for the monitoring of the onward movement of refugees. We consider that these initiatives raise serious questions about the civil and political rights of refugees, asylum-seekers, and migrants and could jeopardise their ability to secure effective protection. Therefore, we urge careful examination of such practices, with input from NGOs, refugees, and human rights organisations.
NGOs are concerned about the continuing development of practices designed to deter and punish asylum-seekers, and which have enormous human and financial costs. Article 31 of the Refugee Convention constitutes a prohibition on States imposing penalties on refugees for illegal entry. Article 31 does not provide for collective penalisation, such as we have seen in the "Pacific Solution" implemented by Australia.
We also note with grave concern the increased use of administrative detention, without adequate safeguards, in particular in the United States and the United Kingdom.
We condemn detention that is mandatory, arbitrary, and without judicial review and which does not comply with international human rights law and standards, or UNHCR's Guidelines. In particular, we highlight the mental health impact and developmental impact of detention, especially on children.
Resettlement remains a vital protection tool in securing durable solutions for refugees. It can never be seen as a substitute for the granting of protection for refugees spontaneously seeking protection, whether in neighbouring States or elsewhere, especially given that less than 1% of the world's refugees (and, by another estimate, 0.22%) are able to access resettlement as a durable solution.
NGOs are deeply concerned at a growing trend of playing off resettled refugees (the "good" refugees) against asylum-seekers who embarked on their own search for protection (the "bad" refugees). International law clearly recognises that the latter is a legitimate means of seeking protection, to which resettlement should serve as a complement.
We are also concerned to note that the last year has witnessed the impact of delays and freezes in the processing of refugees in need of resettlement clearance, the non-fulfilment of quotas (in part attributable to inadequate referral mechanisms), and the reduction of intakes. In certain cases, as has been documented, the failures of the resettlement system are putting lives at risk. We therefore urge States, in cooperation with UNHCR and NGOs, to give effect to their commitments to resettlement. This must take full account of the substantial and constructive consultations that have taken place over the last two years, highlighting in particular the need to review UNHCR's emergency resettlement procedures and States ' role in giving effect to them. At the same time, we would caution against portraying the current resettlement system as being a panacea against secondary or onward movement.
Prevention and Preparedness
During the debate on international protection in recent years, a central theme has been the prevention of root causes of refugee flows. It is widely recognised that the most common root cause of large-scale refugee movements is armed conflict. With this in mind, and, for example, in light of the current tensions in relation to Iraq, it is essential that States take all possible steps to prevent the causes of flight. In any case where conflict ensues, States must commit to ensuring that measures are in place to respond effectively and in a timely fashion. Such measures include ensuring that the right to seek asylum is preserved, that there is access to territory and effective determination procedures, that the principle of non-refoulement is scrupulously observed, and that refugee camps are located and resourced in such a way as to ensure both effective protection and access to adequate humanitarian assistance. In this regard, we would also highlight that the current crisis in Liberia and neighbouring countries demands urgent attention. Not only must the humanitarian character of asylum be ensured, but the range of factors that contribute to the root causes of that conflict must also be addressed.
Throughout the world, States have responded to the events in the United States with tightened immigration and asylum policies and rushed through with draconian legislation. States have publicly equated the so-called "war against terrorism" with the fight against illegal migration, as, for example, seen in Spain. Others have equated asylum-seekers with terrorists, including in the United States, the United Kingdom, and Australia. This equation has been made not only without (or without having to disclose) evidence, but also without giving those so branded any opportunity to rebut the allegations.
UNHCR and the Role of NGOs
While acknowledging and supporting the pivotal role of UNHCR and highlighting the importance of UNHCR-NGO partnership in responding to the current protection crisis, we are mindful of the significant constraints under which UNHCR functions.
NGOs have an important role to play, not only as operational partners, but also in monitoring compliance of States with their obligations under international law. There is a pressing need to strengthen the capacity of NGO partners and civil society in asylum countries, who have responsibilities for the reception of the majority of refugees. We emphasise that NGOs from refugee-producing countries, with experience and knowledge indispensable to finding solutions, need to be included in consultations and operations. We are also mindful of the importance of strengthening NGO capacity where UNHCR offices are being scaled down or phased out.
The provision of accurate and timely information is essential to ensure that affected populations are able to make informed decisions about their future. The provision of such information is a right and not a privilege. This is true not only in the field, but also at UNHCR's headquarters where we are concerned that the new information unit based in the Department of International Protection has neither the resources nor the capacity to provide access to country and other information vital to the protection of refugees. For example, it has been some time since the RefWorld CD ROM, an invaluable tool to States, UNHCR, and NGOs alike, has been updated. Furthermore, access to UNHCR's library, covering research and policy issues, is essential so that we can learn from past mistakes. May we issue a plea to you, as States, to ensure that UNHCR is adequately resourced to deliver on this important and pivotal role that only UNHCR can play.
You, as member States of this Executive Committee, are bound to ensure that UNHCR is adequately resourced to deliver on its mandate. Currently, you are only partially addressing the protection needs of millions of unprotected people in the world, the majority of whom have little prospect for a durable solution. States' actions and policies that blatantly violate core principles of the 1951 Convention are incompatible with the participation of those States in ExCom, whether party to the 1951 Convention or not.
It is critical that the ExCom does not lose sight of the fact that you are bound to ensure delivery on the full spectrum of the international obligations that you have, not only to refugees on your territory, but also those elsewhere.
Some of you say that you have hard choices to make. There is no choi ce about human rights. They are not expendable legal niceties, nor a lifestyle option. They are the bare minimum agreed by States as necessary to protect the safety, dignity, and integrity of all individuals from excesses and abuses of power.