Voluntary Repatriation

EC/SCP/41

1. The subject of Voluntary Repatriation was first considered by the Sub-Committee of the Whole on International Protection at the thirty-first session of the Executive Committee. Since then, voluntary repatriation as a solution to refugee problems has been receiving increased attention from the international community and at its thirty-fourth session, the Executive Committee urged the High Commissioner to continue his efforts to realize durable solutions for refugee problems, in particular voluntary repatriation, which was recognized as the preferred durable solution where feasible.

2. The High Commissioner subsequently discussed the subject with a number of Governments and, in consultation with the Chairman of the Executive Committee, arranged for a round table on voluntary repatriation which was held in San Remo, Italy, from 16 to 19 July 1985. The meeting, which was convened by UNHCR and arranged in association with the International Institute of Humanitarian Law in San Remo, was attended by a group of experts on refugee matters representing all the regions of the world.

3. The participants in the round table considered an extensive study on the subject prepared by an expert at the request of UNHCR. The report of the meeting, together with the conclusions it adopted, is annexed herewith for the consideration of the Executive Committee for possible follow-up action.

ANNEX - REPORT OF THE ROUND TABLE ON VOLUNTARY REPATRIATION - San Remo, Italy, 16-19 July 1985

1. A Round Table on Voluntary Repatriation was held in San Remo from 16 to 19 July 1985. It was convened by the Office of the United Nations High Commissioner for Refugees in co-operation with the International Institute of Humanitarian Law. The purpose of the Round Table was to submit observations and conclusions on voluntary repatriation to the Executive Committee of the High Commissioner's Programme.

2. The Round Table was attended by government ministers, jurists and officials of Governments and intergovernmental organizations who were experts in refugee matters. The participants attended in their personal capacities and the discussion was on an unofficial and non-attributable basis.

3. This report of the Round Table covers the observations made at the meeting as well as conclusions of all the participants.

4. The Round Table was chaired by the President of the Institute, Professor J. Patrnogic, and an opening address was delivered by the UNHCR Director of International Protection, Mr. Michel Moussalli.

5. The meeting considered a background study for the Round Table prepared by Mr. G.J.L. Coles, who also served as Rapporteur of the meeting

6. A list of participants is attached.

7. The Round Table reaffirmed that voluntary repatriation was, in principle, the best solution to a refugee problem,, and that it was desirable and opportune to emphasize the importance of this solution and to develop international co-operation in effecting it.

8. The Round Table considered that the international approach to voluntary repatriation should have, as its basic starting point, human well-being. Fundamental to the protection of human well-being was ensuring respect for the fact of belonging.

9. To emphasize the importance of voluntary repatriation was not to weaken in any way the fundamental importance of not forcing refugees to return against their will. When emphasizing the broad human rights considerations applicable to the entire situation of refugees, the importance of the principle of non-refoulement could only be underlined.

10. The Round Table was also of the view that emphasizing the importance of voluntary repatriation did not deny thereby the necessity in some situations of settling refugees in another country. It was only to maintain that return was normally the best solution and that every effort possible should be made to obtain it. In the view of the Round Table, international co-operation and solidarity should be directed, first and foremost, in favour of the solution of return.

11. There was agreement that to deny without justification an individual, a group or a people the satisfaction of their need to belong by expelling or exiling, depriving of nationality or citizenship, by refusing return or by causing or permitting conditions which prevented return was to do a grievous injury to the persons concerned. Almost all human rights were necessarily denied thereby.

12. The Round Table affirmed the existence and importance of the basic right of persons to return voluntarily to the country of origin.

13. The Round Table considered that a comprehensive and balanced perspective of the refugee problem must take into account all the relevant aspects of the problem, including causes and solutions, as well as the intermediate aspects of protection and assistance. The aspect of causes was critical to the issue of solution and to the intermediate aspects of protection and assistance, and international efforts should be directed to the solution of the causes of refugee movements.

14. The view was expressed that the effective separation of causes from solution in determining the response had led in the past to the international community focusing too much on external settlement and too little on the situation in the country of origin and the responsibilities of that country or of other countries in relation to that country.

15. It was stated that a further detailed examination of the causes of refugee movements should be done at an informal international level by a meeting of experts. It was particularly important that the views of the countries of origin should be taken into account in the preparation of such an examination.

16. It was felt that a further examination should also be done at the informal international level of preventive aspects, having regard, in particular, to the possibilities of concerted international action and to the means of improving efforts currently being pursued by the international co=unity in this regard, whether at the universal or regional level.

17. The Round Table considered that the overall international response to the refugee problem should take into account the full range of human rights and other considerations if it were to be both humane and balanced. In any approach to the solution of voluntary repatriation, a fundamental element, in addition to the will of the refugee, was the situation in the country of origin. If the conditions in the country of origin were suitably altered, spontaneous return would normally occur.

18. The Round Table emphasized that the responsibilities of States towards their nationals and the obligations of other States to promote voluntary repatriation must be upheld by the international community. It was underlined that international action in favour of voluntary repatriation, whether at the universal or regional level, should receive the full support and co-operation of all the States directly concerned, as appropriate. There was agreement that a precondition for the prevention of refugee flows and for the promotion of voluntary repatriation as a solution to refugee problems was sufficient political will by the States directly concerned to address such issues as respect for human rights, the non-use of force, the peaceful settlement of disputes and economic and social development. This was the primary responsibility of States.

19. Another precondition for effective international action to promote voluntary repatriation was the arrest of the erosion of multilateralism and a conversion to a greater sense of international solidarity and co-operation in the promotion of peace, justice and development throughout the world.

20. Attention was drawn to the work of the United Nations Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees, in particular to sub-paragraph (vi) of the Group's provisional recommendations which referred to the rights of refugees to return voluntarily and safely to their homes. The Round Table considered that eventually this sub-paragraph should recognize expressly the competence and experience of UNHCR in the promotion of voluntary repatriation. The view was also expressed that the Group of Governmental Experts should solicit, where appropriate, the views of UNHCR, especially in relation to the question of creating the conditions necessary for voluntary repatriation.

21. The Round Table emphasized that the United Nations body with a specific mandate to seek a permanent solution to the refugee problem was the Office of the United Nations High Commissioner for Refugees and that it was the principal United Nations body in the field of voluntary repatriation.

22. In regard to the initiation of action to promote the solution of voluntary repatriation, the Round Table considered that the High Commissioner was well placed under his mandate to promote this solution.

23. The Round Table was of the view that the High Commissioner was also well placed under his mandate to promote dialogue between all the main parties concerned, including the refugees. He could facilitate consultations between them or act as an intermediary or channel of communication. It was important that he establish, wherever possible, contact with all the main parties and acquaint himself with their points of view. In particular, he should ascertain the wishes of the refugees themselves. The humanitarian concerns oil the High Commissioner should be recognized and respected by all the parties and confidence should be placed in him when he sought to carry out his humanitarian tasks.

24. In dealing with an entity within the country of origin, the Round Table felt that the High Commissioner should not be unduly inhibited by the formal status of any particular entity. If the concern for the basic well-being of the individuals within his care so dictates, he should be prepared, whenever necessary, to deal with non-recognized entities which were in control, either in part or in whole, of the country of origin. This could be done in a mariner which did not breach the rule of impartiality or interfere impermissibly in the internal affairs of a State.

25. The view was expressed that by virtue of his function of seeking a permanent solution to the refugee problem, the High Commissioner should keep the possibility of voluntary repatriation for all or part of a refugee group under active review at all times. In particular, he should identify as soon as possible circumstances which could prove propitious for the eventual promotion of voluntary repatriation.

26. The Round Table considered that it was important that the High Commissioner should be involved fully from the outset in both the planning and implementation stages of repatriation. From any perspective, it could not be satisfactory to seek to associate the High Commissioner with a repatriation programme only after it had already been agreed upon, whether in detail or in broad outline, by the States parties directly concerned.

27. The right of initiative of the High Commissioner in regard to this solution was a means of enabling him to ensure that an eventual repatriation programme was conceived within an appropriate multilateral framework which safeguarded the essential interests of the refugees as well as of the other parties.

28. The Round Table proposed that when, in the opinion of the High Commissioner, a serious problem existed in the promotion of voluntary repatriation of a special refugee group, the High Commissioner should consider choosing for that particular problem an informal ad hoc Consultative Group which could provide him with advice and support in handling that situation. The Consultative Group would be appointed by the High Commissioner in consultation with the Chairman of his Executive Committee and would be constituted by member States of the Executive Committee and other concerned States.

29. The Round Table considered that the method of establishing tripartite commissions was well adapted to securing satisfactory general co-operation. The tripartite commission, which should consist of the countries of origin and of asylum and UNHCR, could involve itself in both the joint planning and the implementation of a repatriation programme. It was also an effective means of securing consultations between the main parties concerned on any problems that might subsequently arise.

30. The Round Table agreed unanimously that it was essential, in view of his protection mandate, that the High Commissioner should be recognized as having a legitimate concern about the consequences of return, particularly where the return had been brought about as a result of an amnesty or other form of guarantees of safe return. The High Commissioner must be regarded as entitled to insist on his legitimate concern over the outcome of any return that he has assisted. He must also have direct and unhindered access to the returnees and be in a position to ensure fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned. These rights should be considered as inherent in his mandate.

31. The Round Table considered that in general the possibility of return, whether sooner or later, should be considered at the outset of all refugee movements.

32. The Round Table affirmed that international action, whether at the universal or regional level, to promote voluntary repatriation requires at the outset of a refugee movement consideration of the situation within the country of origin as well as within the receiving country. It was not to be excluded that conditions within the country of origin could be improved significantly and beneficially as a result of timely and helpful international intercession, whether of a political or economic nature. It was also important to see the refugee problem from the perspective of both the country of origin and the country of asylum. For that reason alone, it was particularly important that contact should be established by the High Commissioner as soon as possible with all the parties and that all the means should be pursued to remain closely in touch with the situation in the country of origin as well as with the situation in the receiving country. It was felt that such action should receive the full support and co-operation of all States directly concerned and of other interested States, as appropriate.

33. Even where international action did not directly impede return, it might do so indirectly in some cases where it put exclusive or higher emphasis on emergency and/or development assistance within the receiving country at the expense of any action which could be taken to solve or ease the conditions within the country of origin which had given rise to a refugee problem. In such cases, an imbalance in the form or direction of international action could also worsen a refugee situation by increasing the size of an exodus. Particularly in the situation where the availability of relief assistance was a factor in the decision to cross a border, UNHCR should encourage other competent agencies to provide appropriate relief in the country of origin.

34. The Round Table emphasized that the repatriation of refugees should take place only at the freely-expressed wish of the refugees themselves. Human rights considerations alone, apart from the specific provisions of international refugee instruments, prohibit the expulsion or return, of a person to his or her country of origin or to another country in such circumstances as would constitute the expulsion or return cruel, inhuman or degrading treatment.

35. The view was expressed that although the circumstances which constituted a person as a refugee may cease, it did not follow automatically that the refugees could be required to leave the country of asylum. Whether as a matter of humanity or of law, the authorities of the receiving State must also take into account the situation of the individual and weigh his interests in the balance of the State's interests. Thus, it would be relevant to consider, for example, length of residence in the State, personal and social ties, education and other special circumstances.

36. Ensuring the provision of adequate information was a responsibility of all the relevant parties with a protection obligation. It could not be confined to providing the refugee with information furnished by the country of origin. Every party with a protection obligation should satisfy itself on the adequacy of the information and ensure that the information was presented in an objective and balanced manner.

37. The Round Table, felt that it was also essential, from a protection point of view, that at no stage should a general list of refugees be supplied to the country of origin so that country could subsequently determine from such a list who finally decided to return and who did not. The only list which should be supplied to the country of origin at any stage was that of refugees who had decided freely to return.

38. The Round Table recognized the significance of spontaneous return as the freely-expressed wish of the refugees and considered that it was important to avoid action which would create obstacles in the way of spontaneous or unorganized repatriation. It was agreed that interested States should make every effort, including assistance in the country of origin, to encourage this movement whenever it was deemed to be in the interests of the refugees concerned.

39. Material assistance for the reintegration of returnees provided by the international community in the country of origin was recognized as an important factor in promoting voluntary repatriation. A refugee was unlikely to want to return if, despite a change in the circumstances giving rise to the refugee movement, the economic and physical conditions in the country of origin were significantly worse than in the country of refuge, particularly if he faced destitution or hardship on return. Especially where a refugee situation might also be complicated by a migratory aspect, adequate material, conditions on return and sufficient arrangements for reinstallation and reintegration into the economic and social life of the country of origin were often an indispensable means for ensuring that a return movement did not occur. To that end, the Round Table was of the view that UNHCR should have funds available readily to assist returnees in the country of origin. Time factors for international assistance should not be so arbitrary as to jeopardise the success of a repatriation operation.

40. The Round Table reaffirmed the significance of the 1980 Executive Committee Conclusion on Voluntary Repatriation as reflecting international law and general international practice (Conclusion No. 18 (XXXI)). It also welcomed the provisions contained in the Cartagena Declaration on Refugees of 22 November 1984, which adopted fully the provisions of the Contadora Act on Peace and Co-operation in Central America and affirmed the voluntary and individual character of voluntary repatriation and the need for it to be carried out under conditions of absolute safety and dignity, preferably to the refugee's place of residence in his country of origin.

41. While it was considered that the existing provisions and international practice already provided a substantial framework to govern the co-operation of States in the promotion of voluntary repatriation, it was felt that serious consideration should now be given to the further elaboration of a multilateral framework governing voluntary repatriation for adoption by the international community as a whole. It was felt that there was a need to redress the imbalance in the statement of principles provided by the existing general international instruments on the status of refugees and asylum which dealt only with the solution of external settlement. Although no legal instrument would by itself change a general situation in the world, it was felt that it was important at least to have a formal multilateral framework which gave adequate recognition of the value of reconciliation and restoration and which complemented the necessary multilateral framework which had already been established for many years to deal with separation and resulting alienation.

42. Finally, the participants expressed their appreciation to UNHCR and to the International Institute of Humanitarian Law for having convened the Round Table. They considered the discussion of voluntary repatriation a timely and valuable initiative and hoped that the deliberations of the Round Table would prove of assistance during further discussions of this subject in intergovernmental bodies.

CONCLUSIONS

1. The Round Table reaffirms the significance of the 1980 Executive Committee Conclusion on Voluntary Repatriation as reflecting basic principles of international law and practice;

2. The basic right of persons to return voluntarily to the country of origin is reaffirmed and it is urged that international co-operation be directed and developed to achieve this solution;

3. The repatriation of refugees should take place only at the freely-expressed wish of the refugees;

4. The aspect of causes is critical to the issue of solution and international efforts should also be directed to the solution of the causes of refugee movements. Further attention should be given to the causes and prevention of such movements, including the co-ordination of efforts currently being pursued in the international community;

5. The responsibilities of States towards their nationals and the obligations of other States to promote voluntary repatriation must be upheld by the international community. International action in favour of voluntary repatriation, whether at the universal or regional level, should receive the full support and co-operation of all States directly concerned, as appropriate. A precondition for the prevention of refugee flows and for the promotion of voluntary repatriation as a solution to refugee problems is sufficient political will by the States directly concerned to address such issues as respect for human rights, the non-use of force, the peaceful settlement of disputes and economic and social development. This is the primary responsibility of States;

6. The existing mandate of the High Commissioner is sufficient to allow him to promote voluntary repatriation by taking initiatives to this end, promoting dialogue between all the main parties, facilitating communication between them, and by acting as an intermediary or channel of communication. It is important that he establish, wherever possible, contact with all the main parties and acquaint himself with their points of view. From the outset of a refugee situation, the High Commissioner should at all times keep the possibility of voluntary repatriation for all or for part of a group under active review and, wherever he deems it appropriate, he should actively pursue the promotion of this solution;

7. The humanitarian concerns of the High Commissioner should be recognised and respected by all parties and he should receive full support in his efforts to carry out his humanitarian mandate in providing international protection to refugees and in seeking a solution to refugee problems;

8. In dealing with an entity within the country of origin or of asylum, the High Commissioner should not be unduly inhibited by the formal status of any particular entity. If his concern for the basic well-being of the individuals within his care so dictates, he should be prepared, wherever necessary, to deal with non-recognized entities without implying thereby any form of recognition;

9. On all occasions the High Commissioner should be fully involved from the outset in both the planning and implementation stages of repatriation;

10. The importance of spontaneous return to the country of origin is recognized and it is considered that action to promote organized voluntary repatriation should not create obstacles to the spontaneous return of refugees. Interested States should make all efforts, including assistance in the country of origin, to encourage this movement whenever it is deemed to be in the interests of the refugees concerned;

11. When, in the opinion of the High Commissioner, a serious problem exists in the promotion of voluntary repatriation of a particular refugee group, the High Commissioner should consider choosing for that particular problem an informal, ad hoc Consultative Group which would be appointed by the High Commissioner in consultation with the Chairman of his Executive Committee and may include, as appropriate, States which are not members of his Executive Committee;

12. The practice of establishing tripartite commissions is well adapted to securing satisfactory general co-operation. The tripartite commission, which should consist of the countries of origin and of asylum and UNHCR, could involve itself in both the joint planning and the implementation of a repatriation programme. It is also an effective means of securing consultations between the main parties concerned on any problems that might subsequently arise;

13. International action to promote voluntary repatriation requires consideration of the situation within the country of origin as well as within the receiving country. Assistance for the reintegration of returnees provided by the international community in the country of origin is recognized as an important factor in promoting repatriation. To that end, UNHCR should have funds available readily to assist returnees in the country of origin;

14. The High Commissioner should be recognized as having a legitimate concern about the consequences of return, particularly where the return has been brought about as a result of an amnesty or other form of guarantee of safe return. The High Commissioner must be regarded as entitled to insist on his legitimate concern over the outcome of any return that he has assisted. He must also have direct and unhindered access to the returnees and be in a position to ensure fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned. These rights should be considered as inherent in his mandate; and

15. Serious consideration should now be given to the further elaboration of a multilateral framework governing voluntary repatriation for adoption by the international community as a whole.

LIST OF EXPERTS

A. Participants

H.E. Mr. C. Robin Ashwin
Ambassador of Australia to the Federal Republic of Germany, Bonn

Mr. Carl Beck
United States Department Of State, Washington D.C.

The Honourable Frederick Mwela Chomba
Minister of Home Affairs, Lusaka

H.E. Mr. Abdel Magid Bashir Elahmadi
Ambassador of Sudan to the Socialist People's Libyan Arab Jamahiriya, Tripoli

Professor Florentino Feliciano
University of the Philippines, Manila

H.E. Mr. Oscar Gonzalez
Ambassador, Co-ordinator of the Mexican Commission for the Aid of Refugees (COMAR), Mexico City

Professor Hector Gros-Espiell
Director, Inter-American Institute of Human Rights, San Jose

H.E. Mr. Munir Husain
Secretary to the Government of Pakistan, Ministry of States and Frontier Regions (SAFRON), Islamabad

H.E. Dr. Danilo Jimenez-Veiga
Minister of the Presidency of Costa Rica, San José

His Honour Mr. Sansern Kraichitti
Chief Justice, The Court of Appeal, Bangkok

H.E. Mr. Erik Nettel
Ambassador of Austria to France, Paris

H.E. Dr. Nagendra Singh
President, International Court of Justice, The Hague

B. UNHCR Delegation

Mr. Michel Moussalli
Director of International Protection

Mr. Shamsul Bari
Chief, General Legal Section

Mr. Dennis McNamara
Chief, South and South-East Asia Section

Mr. Jorge Santistevan
Senior Protection Officer, Americas Section

Mr. Taoufik Ouanes
Protection Officer, Northern Africa and Sudan Section

C. International Institute of Humanitarian Law

Professor Jovica Patrnogic
President

Judge Ugo Genesio
Secretary-General

D. Special Rapporteur

Mr. Gervase Coles

E. Meeting Secretariat

Mr. Jean-Pierre Colombey
Secretary

Ms. Armenia Xavier De Oliveira
Assistant Secretary

Mr. Drew Mahalic

Mr. Ngo Quang Hien

Ms. Cynthia Brazk