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Statement by Dennis McNamara, Director of the Division of International Protection, UNHCR, to the 49th Executive Committee

Speeches and statements

Statement by Dennis McNamara, Director of the Division of International Protection, UNHCR, to the 49th Executive Committee

8 October 1998

As delivered

Mr. Chairman, Madam High Commissioner, Distinguished Delegates,

I am pleased to have the opportunity to address the Plenary of this Executive Committee.

A lot of the protection work during ExCom goes on in less visible ways - in bilateral negotiations, NGO meetings and in Standing Committee and working group discussions, including on the Protection Conclusions.

To address the Plenary provides a welcome opportunity to raise some of our broader protection challenges.

Last year I spoke to you about our fundamental concerns in the face of a storm of violations and attacks - on refugees, on refugee agencies, and on the basic principles of protection - mainly, but not only, in the Great Lakes region of Africa.

This year I am pleased to say that we do not face issues of the same intensity in that region, although I trust we will not forget that it still accounts for the greatest loss of life, including refugee life, in UNHCR's history.

You will recall that because of the magnitude and severity of the protection challenges we faced, we embarked early this year on a systematic dialogue with ExCom members States in all regions. The objective was to elicit views on where the main problems lie, what we might do differently and how we might - together - reinvigorate support for the international refugee protection system, including in the Executive Committee.

My colleagues and I have to date visited 20 member States in this ongoing Reach Out exercise. I gave an interim report on the results of this process to the June Standing Committee. I would like to provide a brief update, focusing on points that have emerged as recurring themes in the discussions which have taken place since then.

Overwhelmingly, States have welcomed this initiative, and have taken the opportunity to tell us that they share our concerns regarding the current protection challenges. All those consulted have also reiterated their broad support for UNHCR's protection role, and agreed to raise their voices whenever possible in support of refugee protection principles.

Notably, in the recent round of consultations a number of governments have been emphatic in their support of the Refugee Convention and Protocol, stressing the importance of preserving and defending these instruments. Some governments have offered bilateral support in this respect and others would like to see the question of accessions and strengthened implementation as a main item on this Committee's agenda.

We have also had expressions of support for the development of regionally-tailored arrangements which might complement the Convention and Protocol without "de-internationalising" the issue. UNHCR was encouraged to expand its efforts to promote dialogues and consensus-building through regional fora. Others felt that the main problem lay in the wide disparities in the application of the basic precepts enshrined in these treaties. These governments urged UNHCR to be more resolute in seeking compliance on the same basis in all regions.

As in earlier discussions, States in turbulent regions with a history of refugee movements had strong views on the contributions of refugee-hosting states, which they felt were not properly valued nor adequately reflected in many fora, including this one.

There was, at the same time, disquiet in some capitals at the manner in which ExCom currently dealt with protection issues, particularly the process of formulating the Conclusions on Protection. In the view of some, this has become tortuous and risked becoming regressive, at a time when the progressive development of the refugee protection system was needed.

These excerpts from the latest chapter of the Reach Out consultations cannot do justice to the rich and wide-ranging exchanges which we have had. This is an ongoing exercise and we shall continue to reach out to all member States who wish to participate. I believe the urgent challenge now is to translate the expressions of State support we received through this process - and in this Committee - into tangible and unequivocal backing for our protection operations world-wide.

As some of you have recommended, we also intend to broaden the process - to engage in a similar dialogue with other actors who may play a more active role in concretely backing the protection system, including the NGO community, the major international financial institutions, the corporate sector and our sister UN agencies, as well as our uniquely placed partners in the Red Cross movement. This is also a community/civil society issue: we need public information programmes to disentangle the anti-immigration rhetoric from refugee protection issues and to de-dramatise and, hopefully, de-politicise the debate. I will keep you informed of our plans and activities as they progress, and would welcome your support and advice.

Mr. Chairman,

UNHCR's protection priority - and orientation - can be maintained in the highly politicised environment in which we increasingly function only with sustained and positive State support. This also entails national compliance with the jurisprudence and guidance developed over several decades, partly in this Committee. Every unchecked violation weakens the system. UNHCR has been urged by some States and NGOs to enhance its monitoring and reporting in this context: your support for this would be critical.

More specific proposals regarding the role of the Executive Committee which we have received also need to be considered here. Some of them relate to the value of the Conclusions on Protection and how we might improve that process.

As you may recall, the process of reaching these Conclusions last year generated considerable concern with us and with some governments. This led to rethinking both the approach and the content of the Conclusions, in the hope that focus and relevance could be reintroduced and polemics downplayed. This year the initial draft was drawn directly from the deliberations of the Standing Committee in June and was kept to a minimum. The draft has gone through a number of revisions since it was first circulated with the result that it has considerably lengthened. We have appreciated that the level of acrimony has been less than last year and the preparedness to agree greater. It should though, be observed that some governments remain reluctant to tackle more current issues, other than in rather guarded and mostly general language.

I am however pleased to announce that after negotiations over several months, which became particularly intense over recent days, we did finally reach a consensus on this year's Protection Conclusions late last night. Again this proved not to be an easy process and I would like particularly to thank my Deputy, Erika Feller, with her colleagues, for her major contribution in this.

The Protection Conclusions are supposed to aid policy application at the national level in the interests of improving protection possibilities for refugees. They are also supposed to strengthen UNHCR's ability to carry out its central and obligatory mandate function. The texts of recent years have regrettably assisted us less as they move closer to serving as yet another vehicle for mustering political support for current government policies. We need to sit together with ExCom members and see how we can infuse these Conclusions with greater protection relevance. Changing the procedure may help but we believe that the approach to substance also needs to be carefully reviewed.

Mr. Chairman,

Time does not permit me to attempt a global survey of our protection concerns. I will attempt instead to touch briefly upon some of the major challenges I believe we currently face.

The first of these has to be a worrying trend by some States to move away from a law-based approach to refugee protection. Like any domain which prescribes how more vulnerable categories of people are to be treated, refugee law needs basic definitions and non-negotiable safeguards. At the same time it should also be seen as an enabling framework, providing an objective and non-politicised basis for response to refugee problems, and for their resolution. It is not static or entrenched and has demonstrated over half a century a remarkable ability to develop and to be supplemented to respond to new situations. It also provides - unsurprisingly - a number of important safeguards for States, from exclusion to cessation and even expulsion, which if properly and actively applied cover, in our view, many of the current pre-occupations.

The Refugee Conventions, supported by national legislation, provide the essential underpinnings of refugee law.

Recent calls for less binding options to deal with new influxes - in their most extreme form proposing unfettered political and administrative discretion to refuse admission or to expel new arrivals without due process - are a direct attack on the essence of refugee law.

Such calls are also notable for their failure to spell out workable and fair alternatives which would more effectively meet State concerns as well as international human rights and humanitarian obligations. We would hope that this Committee would be in the forefront of resisting such proposals.

UNHCR has a number of other major protection concerns, many of which are, regrettably, not new to this Committee. Some are regional, others are universal.

First among these has to be our deep concern at the continued reports of refoulement or expulsion to dangerous situations in different regions, as well as armed attacks and other serious threats to refugee security. These include the use of war and violence to carry out persecutory policies against designated categories, as is currently taking place in Kosovo.

In this context reports in recent days indicate that several thousand Sudanese refugees in north east Democratic Republic of Congo were forced back to Sudan following a recent armed raid. UNHCR Offices were also attacked and looted. In such situations the security of refugees camps must be respected and refugees themselves be allowed to decide when it is safe to return.

At another level, we are concerned at the trend to use measures such as detention of asylum-seekers as a standard part of a response which aims to deter misuse of the asylum system. Our guidelines on detention - which are being updated - clearly spell out our concerns in this area and reports of arbitrary detention remain worrying. (By arbitrary we include measures without a legal basis, with a challengeable legal basis, or which are applied unfairly).

Linked to this is the issue of access to refugee procedures. This Committee has clearly pronounced on this issue in the past - applicants for asylum are entitled to due process, with review, before being removed. With adequate resources and attention, access should not mean prolonged delays or endless legal appeals for undeserving cases. As we have previously made clear, UNHCR will be prepared to actively and, if needed, publicly support the right of all States to return properly rejected cases, after due process. Clearly this is an area where we need to collaborate closely with our partners, in particular IOM.

Mr. Chairman,

In 1998, we should not continue to receive the persistent and harrowing reports of physical and sexual attacks, abuse and exploitation of refugee women and children which we do. Whether on the fringes of conflict or in established refugee camps, these reports are about gross and widespread human rights violations which must be more effectively addressed. This item has been too long on our unresolved list. In order to make real progress, perhaps concerned agencies and some States should establish an ad hoc group to bring added focus to this issue and to identify in concrete terms what else we can and should do.

The protection of internally displaced persons, whether in Kosovo, Georgia, Sierra Leone or Colombia, remains a major pre-occupation for many of us. Within the enhanced OCHA-led assistance co-ordination structures - and with ICRC's role fully recognised - there remain unmet protection needs in this area. Francis Deng's Guiding Principles provide an extremely useful framework for protection: the challenge now is to have them implemented systematically. Here, the reality of State responsibility and the limits of humanitarian action are starkly juxtaposed, especially in the Kosovo-type situations, where relief efforts continue even as the host State violates the most basic rights of its citizens.

The question of excluding the perpetrators of genocide and other atrocities, as well as others not entitled to international protection as refugees - such an acute issue in the Great Lakes - is still with us in many regions. How to identify and exclude such cases, and to deal with the consequences of such exclusion, particularly in mass influxes - and how to avoid the large-scale misuse of adjudication systems, without barring access by those who may need protection, remain major challenges.

Similarly, the location and de-militarization of camps - in West and Central Africa, Southeast Asia and elsewhere, is a continuing concern. As for so many issues in the protection area, especially those linked to ongoing conflicts, the support of a credible and operational security system is essential, for this problem to be addressed effectively on the ground, as indicated in the Secretary-General's report just presented to the Security Council.

A continuing dilemma has been our efforts to establish acceptable minimum conditions for UNHCR involvement in repatriation to countries of origin, where many key areas do not meet basic human rights standards. Regrettably, a number of major refugee-producing countries remain in this category, despite often large-scale return programmes. If these returns are to be both safe and sustainable, increased international support for national protection mechanisms after return is urgently needed.

In many of these areas, effective collaboration with international and national human rights bodies and mechanisms is crucial, as are more sustained monitoring and local capacity building efforts.

Here, UNHCR is acutely aware of its own limitations in this respect, but there remain yawning gaps in this vital area. As you will recall, this Committee has formally endorsed UNHCR's responsibility for the consequences of returns which it has assisted: but we cannot meet this vast challenge unaided.

UNHCR's Statute also makes it clear that our protection mandate includes assisting governmental and non-governmental efforts to promote repatriation or assimilation within national communities. These solutions are the best protection we can hope to provide and need to be undertaken within a clear protection context.

UNHCR's Statute and the Refugee Convention also recognise that international co-operation is essential for UNHCR - and for States - to respond adequately to the refugee problem. Historically, this co-operation has ensured that tens of millions of refugees have enjoyed largely safe asylum and broadly satisfactory solutions over the past 50 years. In many respects, this has been the most comprehensive and effective regime for the protection of any specific vulnerable category within the broader international human rights system.

Despite the inherent sensitivity of uninvited foreigners arriving at borders, often en masse, the system has generally proved its effectiveness, both for States and refugees. It has shown again and again that it is worth preserving. And its treaty basis, as in so many areas touching issues of national sovereignty, remains crucial to its maintenance.

With this in mind, we are proposing to undertake over the next two years, a global promotional effort to maximise the number of States parties to the Refugee Conventions and to the two Conventions on Statelessness. This will be a litmus test of solidarity and international co-operation in this area. We strongly hope that Members of the Executive Committee would lead by example in this important campaign, first by favourably considering ratification, if they have not already done so.

In parallel with this - and equally importantly - we will also promote supportive national legislation and other appropriate implementing mechanisms, within this international framework. We need both State and non-governmental support for this global effort and would hope to be able to report on a maximum positive response to it before the Millennium.

Mr. Chairman,

Refugee protection, like human rights and humanitarian action, falls broadly within what I would call the UN's ethical agenda. This clearly has close links to the political and developmental agendas, but it also has its own characteristics. It requires us within the UN system to exercise moral authority; it requires States to provide global solidarity and co-operation; and non-State actors (including hopefully the private sector) to be active partners with us in promoting a positive globalized response to one of the major universal human problems of today.

This will mean, in some cases, putting national pre-occupations aside in favour of a more broadly beneficial international system which arose not by accident, but from the wisdom and efforts of those who lived through the horrors of earlier unmanaged chaos and displacement.

I can only hope that collectively we are able to rise to meet this pressing challenge to refugee protection.