Statement by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the Fifty-fourth Session of the Executive Committee of the High Commissioner's Programme: "Effective Protection in Today's World"

Introduction

Mr. Chairman, Distinguished Delegates, Ladies and Gentlemen,

The Agenda for Protection was endorsed by this Committee one year ago. It set six goals to pursue - for UNHCR, for States and for other protection partners, notably NGOs. In simple terms, the goals are: better implementation of the protection regime; better security for refugees; better protection for women and children in refugee communities; greater burden-sharing with refugee-hosting States; improved management of the asylum/migration nexus; and more reliable and timely durable solutions. On all these issues we are not there yet.

Of course there are refugees - many in fact - in all regions of the world who continue to enjoy protection in countries maintaining generous asylum systems. Major repatriation operations, Afghanistan and Angola among them, have been running successfully. UNHCR has had over 87,000 resettlement places made available to it to fill. New States, most recently Timor Leste, have signed on to 1951 Convention membership. Others have acceded to the respective statelessness conventions. Many States have been reporting to us important initiatives to put in place solid legislative frameworks, to ensure registration and documentation to refugee groups, and to resolve protracted refugee situations through a variety of new measures.

Yet, a somewhat random check of protection realities on the ground, compared against the objectives of the Agenda for Protection, shows that more remains to be achieved.

The Gap between Discourse and Practice

Why do I so conclude? As I reported to the Standing Committee during its June session, forced deportation of asylum-seekers and refugees is not exceptional, with refoulement often the result. UNHCR is being denied access to persons of direct concern. Refugees continue to confront serious security problems, including sexual and gender-based violence. Fear of terrorism and tightened security controls have negatively impacted refugee access to territory, to asylum procedures and to the solution of resettlement. Efforts to curb illegal migration have also spawned restrictive legislation, multiplying obstacles to accessing asylum procedures, denying due process to detainees or enabling discriminatory approaches to recognition of refugee status. Prevailing legislation in some countries now slips easily into confusing the concepts of cessation of refugee status, cancellation of refugee status and exclusion from refugee status. Both in the North and in the South, dislike of asylum-seekers and refugees continue to manifest itself in xenophobia and violent incidents.

States Parties to the 1951 Convention and its 1967 Protocol who are members of this Executive Committee regularly make right-minded statements about refugee protection in international fora, including this body. There are still too many, however, who do not, to use the old adage, "Practice what they preach". There are entire regions or sub-regions of the world where accession to the 1951 Convention, promoted up front in the Agenda for Protection, is absent. This does not, though, prevent the Convention's principles being brought into play as the standard for others to meet.

Refugees have been rounded up, interned or detained in ways inconsistent both with the prevailing standards, as well as State rhetoric. We see compulsion to sign voluntary repatriation forms; we witness compelled return to situations of statelessness, internal displacement, forced labour or other human rights breaches.

We continue to witness, also, abdication of responsibilities on the part of some States to manage their own asylum systems - from refusal of States Parties to take over refugee status determination from UNHCR, right through to accepting no responsibility for dealing with security issues in camps. The civilian and humanitarian character of asylum is compromised and, at the level of the individual refugee, women and children continue to account for the largest portion of the victims. Field reports all too often document cases of abuse, such as the recent one of a refugee woman who went to the local police to lodge a rape accusation, only in turn to be raped by the very security officials from whom she had sought protection and redress.

Effective Protection

The Ministerial Declaration of 2001 called for protection to be made "more effective". What does "effective protection" mean, against the foregoing reality check? In UNHCR's view, it has to find its base in respect for refugee and human rights law, and it has to be practiced with its humanitarian objectives to the fore, in a manner consistent as much with the spirit as the letter of the refugee protection regime.

Effective protection should be the end product of all UNHCR strives to achieve for refugees. It should, at the same time, be the goal of States in their multilateral cooperative efforts to address asylum challenges. Why stress the word "effective"? Because it can only be through implementation and in observance that international standards are transformed from rhetoric into reality; that what is preached is indeed practiced.

Protection, to be effective, needs a policy, a legal and a practical dimension. We worked hard with this Committee over two years, through the Global Consultations process, to develop the policy dimension. We believe the Agenda for Protection articulates well the policy directions for the coming period.

As to the legal dimension, at a roundtable we organized in Lisbon in December 2002, expert participants found some common ground on benchmarks for when refugees and asylum-seekers can be deemed to have found protection. Broadly these benchmarks were accepted as including absence of a well-founded fear of persecution in the third State on any of the 1951 Convention grounds; respect in the third State for the person's basic rights, including no real risk to life, or of torture, or of inhuman or degrading treatment or punishment; and no real risk of deprivation of liberty, without due process. Furthermore, chain refoulement, or onward deportation to another State not offering effective protection, must be excluded. Accession to and compliance with the 1951 Convention and/or its 1967 Protocol were found to be basic, unless the third country has developed a practice akin to the Convention and Protocol. Fair refugee status determination procedures should be accessible and permission to remain under acceptable conditions is fundamental.

This is the theory. We are now finalizing the contours of a project, built around a protection gaps analysis in selected States, to test how accurate a picture these Lisbon benchmarks offer of the protection possibilities on the ground. This project will be part of the High Commissioner's Convention Plus initiative.

As delegations are aware, Convention Plus is about realizing comprehensive international approaches, which ensure effective protection, including through better apportioning of responsibilities, and the genuine sharing of burdens. This initiative should, we hope, buttress the international protection regime through refining some of the key tools available to resolve refugee problems, resettlement among them. It should lead to better targeting of development aid to build the capacity of host countries to undertake the protection responsibilities being asked of them. In this, it should engage more States, and on both sides of the burden-sharing equation, in comprehensive plans of action to realize protection, as well as durable solutions.

Convention Plus should help practice and discourse to converge. Effective protection starts with sharper awareness of international obligations and standards, but depends upon State commitment to live up to them. Capacity is, of course, key. The Agenda for Protection gives priority to enhancing capacity nationally, and our gaps analysis project should also allow for the crafting of capacity-building strategies.

Finally, on this notion of effective protection, it is not, of course, confined to refugees. For internally displaced persons, the need for effective protection is equally acute. UNHCR is committed to working with all partners here to ensure the more coherent, principled and predictable delivery of protection in internal displacement situations.

Note on International Protection

Mr. Chairman, this year's Note on International Protection (EC/53/SC/CRP.9), first presented to the Standing Committee in June, gives many examples of what effective protection means in practice. It focuses on the doing and the tools of protection.

The tools include training, advocacy and lobbying, direct intervention, capacity-building, as well as the more "legal protection" tools available, deriving from international refugee, human rights and humanitarian law. The Note also explores some of the different mechanisms needed to make protection more effective for refugees. Registration and the provision of documentation are particularly highlighted, since there is growing recognition that these are crucial prerequisites to preserve identity, better address protection and assistance needs and, ultimately, help to manage secondary movement. The Note provides information on adopting an age- and gender-sensitive approach; on strengthening the protection capacity of States; on addressing physical security concerns; on working with communities, and promoting and implementing durable solutions; as well as on tackling the asylum/migration nexus. In broader terms, it also examines the importance of fostering greater public awareness of the situation of refugees. In this regard, the particular onus is on the media, but also on political figures, to report on refugee issues more objectively and responsibly, and shun xenophobic rhetoric.

Agenda for Protection

In June, we gave the Standing Committee a rather detailed written update on progress in implementing the Agenda for Protection. You might be interested to know that, as part of UNHCR's dissemination strategy, the pocket version of the Agenda for Protection continues to be distributed widely by field offices, and is now an integral part of all protection learning programmes. Popular demand is such that we have had to print a third edition comprising an additional 6,000 copies in English, and an Arabic version will soon be available. A German version is also under production, thanks to an earmarked contribution announced by Switzerland to the Standing Committee in June.

Realising the Agenda's many objectives hinges on resolute follow-up not only by UNHCR, but especially also by States, we would again encourage States to describe how the Agenda is being implemented at national level. We appreciate the efforts of some to provide us with this information.

For UNHCR's part, I take this opportunity to highlight a few developments since June. To start with the more "legal" aspects of protection, we have very recently issued the next in our series of protection guidelines, this one focusing on application of the exclusion clauses contained in Article 1F of the 1951 Convention. The guidelines, accompanied by a comprehensive background note, revise UNHCR's approach in a number of important areas, notably regarding the temporal scope of Article 1F(a) and 1F(c), a broader interpretation of Article 1F(c) to take into account relevant Security Council resolutions, and a departure from a rigid "inclusion before exclusion" analysis under certain circumstances. We have also recently released guidelines on the internal flight or relocation alternative within the context of Article 1A (2) of the Convention and Protocol. The series of new guidelines, of which the preceding two are a part, flow from the Second Track of the Global Consultations process and are intended to complement UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status. They are available at the back of the room, just as are UNHCR's revised guidelines on Sexual and Gender-based Violence against Refugees, Returnees and Internally Displaced Persons, which were formally launched by the Assistant High Commissioner and myself several weeks ago.

Geneva-based follow-up has also included work on a number of Conclusions called for by the Agenda. I am pleased that the Executive Committee will adopt four protection conclusions during this session. The negotiation process was particularly demanding, given the number of conclusions and the complex subject matters under discussion. As a result, we are thinking of starting the negotiation process on conclusions earlier next year.

The Conclusion on Protection from Sexual Abuse and Exploitation will we hope serve as an important guide for UNHCR and its partners, as well as for States. This is a serious physical security problem and needs to emerge more clearly from the shadows of not talked about personal behaviour. As for the Conclusion on the return of persons found not to be in need of international protection, I understand that some delegations maintain concerns about the appropriateness of such a Conclusion. This is surprising, not least because the Agenda for Protection called for it, but also because States have repeatedly addressed requests to UNHCR over recent years to give this issue more prominence.

The Conclusion on Protection Safeguards in Interception Measures is a first step. We would have preferred clearer language on the safeguards. On balance, though, we can live with it and will seek to clarify its scope through the issuance of UNHCR guidelines next year. Let me take this opportunity to thank Paula Lynch for having steered the process of negotiations so ably as Rapporteur.

The Agenda for Protection calls for a survey of steps States have taken to reduce statelessness and to meet the protection needs of stateless persons. In April of 2003, UNHCR sent a questionnaire to all States requesting the information. We have prepared a report, which is only preliminary at this stage, on the findings of the survey, based on the replies received from 68 States. The report has been distributed in the conference room and additional copies will be made available tomorrow. We will be looking forward to discussing the findings and recommendations with the Standing Committee in 2004.

The Department of International Protection

I should now like to say a few words on the Department of International Protection's broader operations and management directions, consistent with or in implementation of the Agenda for Protection, for the period to come. Besides its legal work in the area of standard-setting and advice, the Department's purpose is to be of direct support to our field operations.

First, we are currently working on how to strengthen protection staffing - ensuring that protection positions are properly filled and that the protection component of a field office is adequate for its tasks. I was heartened to hear so much support for a shift from resource-driven to needs-driven programming, which preferably should translate into more protection posts. We continue to face difficulties in getting good protection staff on the ground. A positive step here is the consideration being given to Junior Professional Officers as internal candidates during the next posting exercise. The Department of International Protection continues to influence the appointment of protection staff to ensure that the right person is assigned to the right place.

The various deployment schemes in place make an important contribution, recognized and increasingly sought after in the field. Total deployments of protection officers under our Surge Project are 63 to date, 37 of them this year, equally matched as between males and females, with the majority being deployed to African operations (Angola, Chad, Ghana, Guinea, Côte d'Ivoire, Rwanda and Sierra Leone). Offices in Asia and Latin America, as well as the Middle East, have also benefited. The Refugee Status Determination Project, for its part, has led to 45 deployments and the short-term recruitment of over 120 national eligibility officers in 25 different locations since the inception of the project in 1999. Let me take this opportunity, though, to note that both these projects are threatened by quite serious under-funding.

A second priority for the Department is better management of the protection function by UNHCR. Protection responsibilities and accountability for their performance are the subjects of a series of workshops the Department is running, bringing together protection officers and representatives in a variety of field locations to discuss not the nitty-gritty of protection activities, but the management and the accountability issues which go with them. Concurrently, we are working on tools to ensure that field offices have the necessary expertise and know-how, both being pre-requisites for accountability. There are efforts underway, for example, to ensure that field offices have fraud-management tools in connection with the resettlement function. This autumn, the Department will issue a procedural standards directive for refugee status determination under UNHCR's mandate. The purpose of the latter is to promote greater harmonization in UNHCR's RSD procedures and to improve standards of due process, integrity and oversight.

A third DIP priority is how to better "do" protection on the ground, with an emphasis on physical protection; a priority also for many delegations during this session. We will develop an Operations Protection Manual intended for both UNHCR and implementing partner staff. It will build on the many existing guidelines addressing physical security dilemmas, particularly in camp environments, but its purpose and value-added will be to serve as a user-friendly "how to implement" manual. The project will be directed by an inter-departmental Steering Committee, to include not only representatives of the Department of International Protection and Division of Operational Support, but also NGO representatives. NGO staff in the field, together with our own field staff, will be directly engaged in the project in an inter-active manner.

A fourth priority of my Department remains capacitating UNHCR staff in protection, through training. Our Protection Learning Programme has, as of 1 September 2003, benefited over 490 UNHCR staff members in some 85 countries. An additional 280 staff members are expected to commence this 10-month programme in late 2003. A major update and revision of the Learning Programme is currently underway with a view to centering it more directly on the Agenda for Protection, but also UNHCR's Code of Conduct. The Programme was also supplemented on a pilot basis this year by two Thematic Learning Programmes, dealing respectively with Protection Strategies in Areas affected by Armed Conflict and Strategies in the Context of Broader Migration Movements. One interesting aspect of these is that they provide for direct dialogue between senior UNHCR field colleagues, Headquarters staff and representatives of other interested organizations, including UNHCHR, ILO, IOM, ICRC, Amnesty International and the Centre for Humanitarian Dialogue. Based on this year's pilot, we will be refining the Thematic Learning Programmes, offering them next year and probably adding one on Protection Strategies in Voluntary Repatriation. We are also considering a Protection Learning Programme for NGO staff and UNHCR operational and implementing partners.

I should also like to highlight that this year has seen significant progress in enhancing and expanding the use of resettlement as a tool of protection, as a durable solution, as well as a burden- and responsibility-sharing mechanism. In 2003, planning for resettlement was included in Country Operations Plans submitted by UNHCR offices globally. This allowed UNHCR to assess resettlement needs one year in advance for the first time, greatly enhancing coordination and advance planning with resettlement countries. Building on the excellent work of the Working Group on Resettlement regarding the strategic use of resettlement, again pursuant to the Agenda for Protection, the Resettlement Section developed a group methodology for the identification and profiling of refugee groups to be considered for resettlement. This practical tool will enhance the use of resettlement in protracted and other refugee situations in 2004, and contribute to work on resettlement in the Convention Plus framework. Resettlement countries and other resettlement processing partners have welcomed the group methodology and we look forward to working with them on realizing its potential. Also in 2003, UNHCR formally established two Regional Resettlement Hubs in Africa, located in Accra, Ghana and Nairobi, Kenya, with a view to strengthening resettlement activities and improving the quality of resettlement in the regions they cover.

Sustaining progress on resettlement will be a major challenge. UNHCR received additional earmarked funding for resettlement activities in 2003, which made this progress possible. While the Office has been able to mainstream a few of the positions created thanks to this funding, our projected resources will not allow us to allocate additional funding for resettlement. We will therefore be obliged to seek additional funding in 2004 to consolidate the gains made this year.

Looking ahead, the Resettlement Section is currently working on a Global Resettlement Strategy for 2004 and beyond, to be finalized and issued before the end of this year. The objective is to bring greater predictability to the resettlement process and reinforce the implementation of standards and procedures to ensure integrity and transparency in resettlement processing. We will also undertake a review of resettlement needs in Africa later this year, focusing on regions with large caseloads in protracted refugee situations and locations with significant numbers of urban refugees. This information will be used to design a plan of action to address the needs identified by the review. In follow-up to the development of group methodology, UNHCR will be working closely with resettlement countries to establish a generic framework for their consideration and processing of groups proposed for resettlement by UNHCR. The aim is to achieve a common understanding with resettlement countries of what constitutes group resettlement. Additional areas for collaboration regarding resettlement include exchanges of expertise relating to fraud prevention and maintaining transparency and security in resettlement processing. A final key priority is to develop further the resettlement component of Convention Plus, where we will be working closely with Canada and other interested States in developing a framework of principles aimed at facilitating comprehensive solutions for specific refugee situations.

Acutely aware of State concerns to limit possibilities for fraudulent misuse of travel documents, the Department of International Protection has started looking at how to modernize Convention Travel Documents, which continue to be based on the model provided in the 1951 Convention. As there are at present no agreed procedural standards regarding the handling and issuance of these travel documents, there are increasing concerns about their integrity, undermining their acceptance by States. This, of course, erodes the rights of recognized refugees to undertake travel necessary for resettlement, work, study, medical care or other purposes. The Department will now work to update the content and security features of Convention Travel Documents that UNHCR supplies to countries unable to produce their own, and to develop guidelines for UNHCR field offices and receiving governments to strengthen and harmonize procedures for issuing the travel documents.

Finally, a word on the Protection Information Section, which is charged with producing and disseminating country of origin information, functions formally discharged by the Centre for Documentation on Refugees. The Section has inter alia revived Refworld on CD-ROM. As I speak, the autumn update of Refworld 2003 is being finalized and work is beginning on the 2004 version. The CD-ROM includes key UNHCR documents and guidelines not previously made available. The information it contains should allow States to form a clearer and more detailed understanding of country of origin conditions. In addition, it should ensure the adjudication of claims more expeditiously and fairly. There are over 1,200 subscribers and the list continues to grow. Again, though, resources are a limiting factor.

Conclusion

In conclusion, Mr. Chairman, let me return briefly to what might be termed the theme of this introductory statement: effective protection in today's world. I have chosen this topic for two overriding reasons. Firstly, as noted earlier, UNHCR is concerned by the widening gulf between the discourse and commitments made including in this Committee and the actual practice of many States. Harsh realities facing asylum-seekers and refugees around the globe are not exceptional, but rather too commonplace.

The focus on effective protection is also prompted by the Secretary-General's stated priority to hold the line against what he has deemed widespread erosion of hitherto broadly accepted norms of behaviour. In his view, countering this erosion needs to be pursued energetically across the board: from arms control and non-proliferation (including of small arms), through to respect for human rights and humanitarian law.

Consistent with the Secretary-General's own concerns, the major goal of the Global Consultations was precisely to try and arrest further erosion of the international refugee protection regime. During this process, we jointly examined some of the main reasons that are often cited as the causes for waning commitment to protection principles. It is true that governments often have to grapple with mixed movements, asylum fatigue, security concerns and insufficient resources. All of these are serious challenges and it was agreed, through the Agenda for Protection, that specific initiatives are called for to address them. It remains our position that these challenges do not justify blatant cases of refoulement, denial of any identity to refugees before the law, mandatory and arbitrary detention of all asylum-seekers, denial of access to UNHCR, maintenance of obstacles to repatriation, or not prosecuting cases of rape of refugee women?

There are at present too many artificial constructs being devised to elude responsibility for supporting and accepting refugees. The end result is to lock people out of the effective protection the Convention's drafters had in mind. In pursuit of narrowly defined national interest considerations, we see policies being crafted restrictively around inflexible definitions, failing to balance properly the factual protection realities.

Mr. Chairman, as one Executive Committee member aptly put it at last year's session, "Refugee protection is an obligation, not a choice." Let us really make use of the Agenda for Protection. It does provide some directions, even some answers.