Note on International Protection (Submitted by the High Commissioner)

A/AC.96/609/Rev. 1

Introduction

1. The following note outlines several of the main areas of current preoccupation for UNHCR in the field of international protection. As will be seen, particular emphasis has been placed on trends and developments with regard to asylum and non-refoulement and the definition of persons who are to be considered as entitled to benefit from international protection. These subjects are dealt with at some length because it is believed that they will pose major questions for the international community in the years immediately ahead.

2. Increasing concern has been expressed by States at the ever-growing numbers of persons seeking asylum or the protection afforded by refugee status. Since prevention must be considered better than cure, the emphasis placed by States on the need to avoid or alleviate the circumstances giving rise to massive trans-frontier flows can only be welcomed; and in this regard the study of the causes of such movements provides a valuable opportunity to consider the possibility of timely remedial action designed to avert the tragedy of many of these flows.

3. At the same time, the Office is forced to recognize the unfortunate fact that mass exoduses will continue to occur despite all efforts to reduce their scale and frequency and, in pursuance of its mandate, is obliged to emphasize the need for a scrupulous observance of the fundamental principles of international protection and the importance of obtaining solutions to the refugee problem.

4. The close attention at present being accorded to these aspects should not, however, detract from the significance of the numerous current issues existing in the field of international protection. These are alluded to in the present note and are also dealt with in the High Commissioner's report to the thirty-seventh session of the General Assembly (A/37/12).

Advancement of the principles of international protection

5. There are encouraging indications that the principles of international protection are gaining ever wider recognition and acceptance. This applies in particular with regard to the principle of non-refoulement, which, as a result of constant reaffirmation by States over a number of years, has increasingly come to be regarded as a peremptory norm of international law from which no derogation is permitted.

6. The institution of asylum has also attained increased stature. Since the thirty-second session of the Executive Committee, massive numbers of persons have been granted, or have continued to enjoy, asylum. The fact that solutions could be found for so large a number of persons by way of asylum demonstrates the strength of this time-honoured institution. It is also a tribute to the generosity and good-will of Governments in pursuing liberal asylum policies. Particular attention should also be drawn to the conclusion adopted by the Executive Committee at its thirty-second session¹ that in the case of a large-scale influx asylum-seekers should be admitted, at least on a temporary basis, to the State in which they first seek refuge. In the same conclusion, the Executive Committee identified a number of basic minimum standards of treatment to be accorded to asylum-seekers in such situations. These were subsequently approved by the General Assembly at its thirty-sixth session.²

7. The progressive acceptance of the principles of international protection is reflected in the increasing interest shown not only by Governments but also by such concerned groups as academics and lawyers in the promotional and dissemination aspects of the office's protection work. A further positive development has been the willingness of States to establish a closer dialogue with UNHCR on matters pertaining to the protection of refugees in their respective territories. In this way, the office is regularly given the opportunity of expressing its views on draft legislation affecting refugees and asylum-seekers and is invited to participate in seminars and workshops for the training of immigration officers and other government officials who, in the course of their work, come into contact with refugees. It is hoped that this dialogue between UNHCR and individual Governments will be further expanded and developed in the years ahead.

8. In the context of the Office's promotional efforts, further progress may also be recorded with regard to the growing number of States Party to the 1951 United Nations Convention relating to the Status of Refugees and/or the 1967 Protocol, to which there are currently 92 Contracting States. It is encouraging to note that the basic refugee instruments have now been accepted by States in most regions of the world. As reflected in document A/AC. 96/INF. 152/Rev. 3, a growing number of States have adopted procedures for the determination of refugee status. Successive sessions of the Executive Committee have placed emphasis on the importance of the adoption of such procedures.

9. The increasing acceptance and reaffirmation by States of the principles of international protection must, however, be seen in the context of other current trends - some of which are elaborated in this paper - that will undoubtedly have an impact on future action in the protection field.

Current trends and their implications for the international protection of refugees and asylum-seekers

10. It cannot be overlooked that various problems related to asylum have acquired an increasingly complex character due to continuing large influxes of asylum-seekers experienced by developed and developing countries alike. The higher level of economic opportunities in certain countries have prompted the mass movement from lesser developed areas of persons who voluntarily leave their country of origin drawn by the prospect of economic betterment. Current recessionary trends in the developed world have however limited the capacity of such countries to absorb large numbers of new arrivals. An additional and related factor is a perceptible resentment against aliens - including refugees - who are seen as competing for reduced economic opportunities. In the face of increasingly restrictive admission practices resulting from declining immigration quota - many of the persons included in these migrationary flows attempt to circumvent immigration rules by endeavouring to gain admission as asylum-seekers. These various developments must also be seen against the background of a general decline in public sympathy for the situation of the asylum-seeker, an unfortunate development that has been described as 'compassion fatigue'.

11. When confronted with these developments, the States most concerned have adopted various measures of a more-or-less drastic nature. In some States where asylum requests are examined on an individual basis, there has been recourse to a very strict application of the refugee criteria, in certain cases involving what appears to be a prior assumption of ineligibility for refugee status of certain groups of asylum-seekers. Steps have also been taken to limit or dispense with procedural safeguards - such as judicial or administrative review - in order to reduce the backlog of asylum claims. Other countries of first asylum confronted with a large-scale influx have resorted to practices that have been termed a "humane deterrent", which include measures of detention or reduction to a bare minimum of living standards in temporary camps. The view has also been expressed that the availability of international aid to asylum-seekers constitutes an element of attraction, and the suggestion has been made that such assistance should be reduced in order further to stem the flow of arrivals. A number of countries of first asylum continue to admit asylum-seekers only on the strict understanding that they will be resettled.

12. These various reactions on the part of Governments reflect the understandable desire to resolve what seem to be intractable problems. The Office is fully cognizant of the legitimate concerns of individual Governments. There is indeed no question that only refugees should be recognized as such and that persons without any reasonable claim to refugee status or asylum should not be admitted to determination procedures, a need that can be met by appropriate arrangements for excluding abusive applications. This being said, the general direction of a number of the deterrent measures adopted by States give rise to concern because of their potentially detrimental effect on established principles of international protection. This concern relates in particular to the unduly restrictive interpretation of the refugee criteria and, in some cases, to a tendency to link the grant of even temporary admission with the availability of resettlement places.

13. These complex developments have also focused increasing attention on the causes of large-scale refugee situations, which in turn has led to a call for a revision of asylum practice and refugee law, impliedly in a restrictive sense. The High Commissioner believes, for his part, that the answer to present problems must be sought primarily in addressing the causes of large-scale movements without adversely affecting the principles of international protection. Where large-scale movements of refugees take place, the principles of international solidarity and burden-sharing should apply to obtain the necessary solutions, satisfactorily and speedily. The practical application of these principles may take a variety of forms including the provision of resettlement opportunities or of material and financial assistance pending a durable solution by way of voluntary repatriation, local settlement or resettlement. Last but not least, international solidarity and burden-sharing may also involve the expression of political and moral support for the States most directly affected by large-scale flows.

14. International solidarity and burden-sharing are of particular relevance with regard to asylum-seekers who have been admitted but for whom a satisfactory durable solution is not readily available. Such asylum-seekers frequently find themselves in a situation of particular hardship due to the fact that they can only take advantage of a limited range of economic and social rights. They are thus condemned to enforced idleness, normally in camps where they are dependent on international assistance for long periods. International solidarity and burden-sharing should be directed towards alleviating the situation of such persons by, for example, the provision of self-sufficiency measures until a more satisfactory durable solution can be found.

15. Experience has shown that large-scale influxes may include substantial numbers of persons who may not qualify for durable solutions as refugees but who for various reasons cannot return to their country of origin, either because the authorities of that country are not prepared to readmit them or because such return might involve exceptional hardship. Persons in this category are frequently in the situation of illegal immigrants and for this reason may be placed in detention or exposed to other restrictions on their freedom of movement. The plight of such persons should also be taken into account in humanitarian measures adopted within the context of international solidarity and burden-sharing.

16. The office continues to believe that countries of origin must for their part do everything possible to enable the solution of voluntary repatriation to be realized. In some cases, voluntary repatriation is both the optimum and also the only workable solution. In facilitating this solution, the country of origin should be able to call on the international community to provide the necessary assistance. The grave plight of refugees in certain situations of mass influx who experience acute suffering and hardship in their exile can only underline the urgency, from a humanitarian point of view, for all the concerned parties to seek a solution to the internal difficulties that caused the exodus, thereby facilitating the solution of voluntary repatriation. In stressing the importance of return as a solution for refugees, the office must also stress the cardinal principle of the voluntary character of repatriation. In this regard, it wishes to draw particular attention to the important principles and considerations to be found in the conclusion on voluntary repatriation adopted by the Executive Committee at its thirty-first session.³

Categories of persons who can be regarded as entitled to benefit from international protection

17. The various problems described in the preceding paragraphs have also served to focus attention on the categories of persons entitled to international protection. This subject was specifically dealt with in the Note on International Protection submitted by the High Commissioner to the Executive Committee at its thirty-second session (A/AC. 96/593). It will be recalled that the High Commissioner's competence was originally circumscribed by the definition of the term 'refugee' in the UNHCR Statute, which is essentially the same as that in the 1951 Convention and 1967 Protocol. While recognizing the continuing validity of this definition, various resolutions adopted by the General Assembly subsequent to the UNHCR Statute have had the effect of extending the High Commissioner's competence to enable him to afford protection and to provide assistance to broader categories of persons who have been displaced outside their country of origin due to man-made disasters. These persons can be regarded as broadly corresponding to those covered by the widened definition of the term "refugee" in Article 1 paragraph 2 of the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa.⁴ 4/ This broadened refugee concept also figures in the conclusion adopted by he Executive Committee at its thirty-second session on the protection of asylum seekers in situations of large-scale influx.⁵

18. This widening of the concept of persons entitled to international protection has made it possible for the international community to meet effectively important humanitarian needs in different areas of the world. At the same time, as indicated in the preceding paragraphs, there is an increasingly restrictive practice on the part of some Governments in applying the refugee definition of the 1951 Convention. This growing disparity between the liberal way in which the concept of persons entitled to benefit from international protection is now perceived and the restrictive manner in which the refugee definition is being applied merits closer attention. It is of particular importance that the various problems to which reference has been made above should not result in a restrictive application of the refugee definition contained in the 1951 Convention and the 1967 Protocol and that the liberal standards developed by the international community in applying this definition should be preserved.

19. As regards persons not meeting the criteria of the refugee definition but coming within the High Commissioner's extended competence, it should be clear that protection does not necessarily imply the full range of treatment provided for in the 1951 Convention and the 1967 Protocol. It may be limited to protection against refoulement and to treatment according to various basic minimum standards. It should also be stressed that the circumstances that lead persons to become refugees according to the wider concept are frequently of a more transitory nature than those giving rise to refugee status as reflected in the 1951 Convention and the 1967 Protocol. For this reason, the protection extended to persons covered by the wider concept may be correspondingly limited in time, pending a change of circumstances in their country of origin.

Standards of treatment for the protection of asylum-seekers

20. While standards of treatment to be accorded to persons recognized as refugees are set out in the 1951 Convention, those to which asylum-seekers should be entitled pending the outcome of determination procedures or the finding of a durable solution are less clearly defined. Some States follow liberal practices with regard to asylum-seekers by, for example, permitting them to take up gainful employment. In other States where such possibilities cannot be provided, the situation of the asylum-seeker is less favourable and may even give rise to hardship. This would indicate the need for self-sufficiency measures to which reference has already been made in paragraph 14 above. It is in any event necessary to ensure that asylum-seekers are treated in accordance with basic minimum standards. In so far as large-scale influx is concerned, the Executive Committee at its thirty-second session identified a number of basic minimum standards of treatment to which asylum-seekers who have been admitted on a temporary basis should be entitled. The Executive Committee also recognized that asylum-seekers should be entitled to contact the Office of UNHCR, which should be given access to them. UNHCR should furthermore be given the possibility of exercising its international protection function and should be allowed to supervise the well-being of persons entering reception or other refugee centres.⁶

Physical safety of refugees and asylum-seekers

21. The problem of the physical safety of refugees and asylum-seekers has assumed unprecedented proportions in recent years. In different areas of the world refugees and asylum-seekers have been and continue to be victims of physical attacks, frequently committed in circumstances of indescribable cruelty, savagery and bestiality.

22. There have been a number of situations in which repeated military operations have resulted in the most extreme suffering and physical deprivation not only for refugees but even in some cruel and tragic instances affecting large segments of civilian population.

23. At its thirty-second session, the Executive Committee noted with grave concern the inhuman military attacks on refugee camps in southern Africa and elsewhere involving extreme and indescribable hardship to refugees. In accordance with the request of the Executive Committee, the High Commissioner is examining the serious humanitarian problems resulting from such attacks on refugee camps and settlements that are the concern of UNHCR and will be submitting a preliminary report on this matter to the Committee at its present session.

24. The problem of pirate attacks on asylum-seekers at sea continues. An important first step reflecting the collective responsibility of States to suppress this phenomenon, which has been recognized as a crime against mankind, was the conclusion in June 1982 of an agreement between the Royal Thai Government and UNHCR on behalf of 12 donor Governments.

25. This agreement, the purpose of which is to assist Thailand in its own efforts to combat the incidents of piracy occurring within the Gulf of Thailand, is a significant development. It should, however, be stressed that, given the dimensions of the phenomenon, the measures envisaged will not of their own accord resolve the problem of piracy in the South China Sea. Further efforts will therefore be called for by all States in the context of burden-sharing and international solidarity to suppress this most heinous of crimes.

Conclusions

26. Since the thirty-second session of the Executive Committee there have been a number of positive developments with regard to the reaffirmation of the basic principles of international protection, accessions to the 1951 Convention and the 1967 Protocol, and a greater awareness of the promotional and dissemination aspects of the Office's work.

27. These encouraging trends have, however, been matched by a variety of problems resulting from the demands made on the international community by large numbers of asylum-seekers combined with economic recessionary and migratory trends. These problems have led to restrictive practices by a number of Governments in the granting of asylum, in applying the refugee definition and in determining what persons are entitled to international protection. At this critical juncture, it is of the utmost importance to ensure that the established principles of international protection are not undermined and that the liberal concepts developed by the international community since the appointment of Fridtjof Nansen as the first League of Nations High Commissioner for Refugees some 60 years ago should be fully preserved.

28. Present efforts to deal with the causes of refugee flows and to avoid or alleviate the conditions giving rise to them are to be welcomed. It is, however, essential that measures designed to avert such flows do not adversely affect the established principles of international protection.

29. There is also a clear need for the international community to address squarely the problem of the physical safety of refugees and asylum-seekers. The recurrence of incidents involving the most indescribable forms of violence against refugees and asylum-seekers calls for concerted action by all States to ensure their future safety.

1 Official Records of the General Assembly, Thirty-sixth Session, Supplement No. 12A (A/36/12/Add. 1), para. 57(2) II. A. l.

2 Resolution 36/125 of 14 December 1981.

3 Ibid., Thirty-fifth session, Supplement No. 12A, (A/35/12/Add. 1), para. 48 (3).

4 "The term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. "

5 Ibid., Thirty-sixth session, Supplement No. 12A, (A/36/12/Add. 1), para. 57 (2).

6 Ibid., Thirty-sixth session, Supplement No. 12A, (A/36/12/Add. 1), para. 57 (2) (III).