Discussion Note on Protection Aspects of Voluntary Repatriation

EC/1992/SCP/CRP.3

I. INTRODUCTION

1. At the forty-second session of the Executive Committee in 1991, the High Commissioner drew attention to the poor conditions in which the majority of the world's refugees are forced to live, and declared that the right to return to one's homeland merited as much recognition as the right to seek asylum abroad. She reaffirmed her determination to pursue every opportunity in 1992 for voluntary repatriation as the preferred solutions to refugee problems.

2. The principles constituting the framework for planning and implementing voluntary repatriation programmes were elaborated in detail by the Executive Committee of the High Commissioner's Programme in Conclusions 18 (XXXI) and 40 (XXXVI). Now agreed and not in question, they include the fundamental requirements that the refugees must choose to repatriate of their own volition and must be able, and be assisted, to do so in safety and dignity. Other principles broadly part of this framework are to be found in regional refugee instruments and human rights conventions.

3. It is, however, UNHCR's experience, based on close involvement with repatriation operations over a number of years, that while the principles are accepted, the reality does not always fit comfortably with them. This may be the case where voluntaries for all is difficult to ascertain or verify, or when conditions in the country of origin are such that safety is not absolute and guarantees of safety and dignity cannot effectively be extended.

4. Against this background, the purpose of this note is to have the Executive Committee examine practical aspects of voluntary repatriation as they have an impact on the protection of refugees and the realization of this increasingly preferred solutions, with a view to exploring how best to draw together and consolidate all the relevant principles, together with UNHCR's practical experience, into a set of comprehensive guidelines.

II. LEGAL AND PROTECTION FRAMEWORK FOR VOLUNTARY REPATRIATION

5. The right of persons to leave and to return to their country is the basic tenet underling voluntary repatriation. It is incorporated both in international human rights instruments¹, and the domestic law of a number of States. Its content is at present under study in the Sub-Commission on the Prevention of Discrimination and the Protection of Discrimination and the Protection of Minorities.

6. Voluntary repatriation is a solution envisaged specifically in UNHCR's Statute which identifies two of UNHCR's principal protection activities as "promoting ... with Governments the execution of any measures calculated to improve the situation of refugees and reduce (their) number", as well as "assisting governmental and private efforts to promote voluntary repatriation."² While the 1951 Convention does not address repatriation directly, the temporary nature of refugee status and the desirability of permanent solutions are implicit in Article 1C³ which provides for cessation of refugee status on voluntary acquisition of a new nationality, the voluntary reacquisition of the former nationality and/or the voluntary reavailment of the protection of the country of origin. Moreover, by virtue of their responsibilities under Article 35, Contracting States are required to cooperate with the High Commissioner in her task of promoting voluntary repatriation as a principal solutions to refugee problems. At the regional level, Article V of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa deals more extensively with the issue and makes specific provision for the voluntary character of repatriation, for return in safety and for the respective responsibilities of the major parties involved. The Cartagena Declaration also offers important principles in this regard, while the Declaration and Concerted Plan of Action in favour of Central American Refugees, Returnees and Displaced Persons, adopted by the International Conference on Central American Refugees (CIREFCA) in 1989, contains important and forward-looking commitments amplifying basic principles.⁴

III. EXECUTIVE COMMITTEE GUIDANCE

7. Voluntary repatriation may take the form of an ongoing programme or a single operation, and may range from the return of individuals to the mass movement of thousands of persons together with their belongings. Repatriation may be organized or spontaneously initiated by the refugees themselves. Notwithstanding the wide disparity in the size of repatriation programmes, it is generally accepted that they should be governed by basic, common principles. Conclusions 18 (XXXI) and 40 (XXXVI) of the Executive Committee, together and in summary, specify the following:

(a) Refugees have a right to return voluntarily to their country of origin.

(b) Efforts should be made to remove the root causes of refugee movements.

(c) The repatriation of refugees should take place only at the freely-expressed wish of the refugees themselves. The voluntary and individual character of repatriation must be respected.

(d) Voluntary repatriation must be carried out under conditions of safety and dignity, preferably to the refugee's place of residence in the country of origin.

(e) International action in favour of voluntary repatriation should receive the full support and cooperation of all States involved, including countries of origin and of asylum, but also the international community generally, on the basis of their respective responsibilities.

(f) UNHCR has a legitimate interest in the consequences of return.

(g) UNHCR should be fully involved at the outset in assessing feasibility and in planning, implementing and monitoring voluntary repatriation.

(h) Where necessary, UNHCR should establish and implement assistance programmes for returnees.

(i) UNHCR should have direct and unhindered access to returnees to monitor their overall situation, particularly as regards fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned.

IV. UNHCR'S EXPERIENCE WITH VOLUNTARY REPATRIATION

8. To date, in addition to its ongoing involvement in repatriation of individual refugees, UNHCR has participated in, or is presently involved in planning, a number of large-scale voluntary repatriation programmes. For the most part, these are highly organized, international programmes that have mobilized a full complement of UN agencies. Notable among these are the Namibian, South African and Cambodian operations. To ensure their logistic success and durability, the Office has had to undertake extensive preparatory work in consultation with Governments and international agencies, for the documentation, transportation and reception of refugees, their safety after return and their reintegration into their countries of origin. In all cases, the Office has learned that, regardless of its size or character, certain fundamental prerequisites are a sine qua non for the success of any voluntary repatriation programme. These include the following:

a. Conditions must be propitious for return

(i) Even given the desirability of repatriation, premature return cannot be considered a solution if it results in renewed persecution of new departures. Repatriation will be precipitate if, for example, conditions cannot easily accommodate it or if the individuals concerned are not adequately prepared. The basis of repatriation must be a general improvement in the situation of the country of origin so that return in safety is both possible and desired. The socio-economic impact on the country of origin of the sudden return of thousands of repatriants must also be taken into account. Success will also, to extent, depend on the psychological readiness of persons to return to places from which they had felt forced to flee.

(ii) With respect to improved conditions, voluntary repatriation and invocation of the "ceased circumstances" cessation clause of the 1951 Convention (Article 1C(5)) might be considered part of a continuum. Ideally, the circumstances which led to departure should have been removed through social and political changes of a profound and enduring nature. The reality, however, is different, given that decisions to repatriate taken voluntarily by the concerned individuals and agreement between States to facilitate and safeguard repatriation most often come together at a point after some changes have occurred, but before the conditions for cessation have been met. In such cases, the refugee is confident enough to chance a return and the States to assist, even though there is no basis for States to set aside the aspect of voluntary decision-making and to assert with confidence that, barring exceptional cases, no one can continue to refuse national protection. A voluntary repatriation programme may well be the precursor for a later application of the cessation clause. However, given that the effect of cessation is to remove a status together with its basic rights and protections, and to obviate the need for a voluntary decision to return, safeguards must be present to guard, to the extent possible, against errors of judgement.

b. The decision to return must be voluntary

In order to ensure the voluntary nature of the return, repatriation programmes have required adequate verification arrangements. Central to these arrangements has been the participation of representatives of regional and/or international bodies, including UNHCR, in a meaningful dialogue with the refugees on the situation in their country of origin and their decision to return. Refugees must have sufficient information, presented objectively and through appropriate media, to enable them to make an informed choice and to feel confident about their return. In this regard, agreements between all parties concerned to allow representatives of refugee communities to visit their country, under appropriate guarantees, to inform themselves of the conditions there have proved a useful tool.

c. Dialogue between the major parties must be established at the earliest possible stage

Dialogue must be encouraged in all phases of a planned repatriation to ensure its proper promotion, to create the conditions conducive to its success, to explore the practical feasibility of the programme and to plan its implementation, as well as to make provision for reintegration assistance upon return. Experience shows that the smoothest operations which offer refugees the best chances of durable reintegration are those based on arrangements fully discussed and agreed between the parties, usually through the mechanism of "tripartite" or "quadripartite" commissions composed of the governments of the countries of asylum and of origin, UNHCR and, where appropriate, refugee representatives.

d. Return must be orderly and in safety and dignity

In practice, the feasibility of this requirement will depend on factors such as the capacity of the country of asylum to process departures and of the country of origin to absorb arrivals; arrangements made to protect vulnerable groups among the repatriates; measures taken to ensure safety and non-discrimination during departure and after return; the possibilities for ensuring humane departure and reception conditions; arrangements for UNHCR access; and reintegration assistance.

e. The basic terms and conditions of the return should be the subject of formal agreement

The agreement of all concerned parties on the terms and conditions of return should be in a consolidated form, preferably as a Memorandum of Understanding (MOU), which would provide the framework for the operation. The drawing up of this type of document is becoming a standard practice in UNHCR but will benefit at this point from an agreed content reflecting international consensus which is nevertheless adjustable in its details to the particular circumstances of each operation.

f. The responsibilities of the major concerned parties must be understood and agreed upon to the extent possible in the MOU

(i) Large repatriation exercises, by their very nature, depend to a great extent on international solidarity. The vital role to be played by the international community in this regard was recognized by the Executive Committee in its Conclusion 40 (XXXVI). Equally as important, both the country of asylum and the country of origin have specific responsibilities to facilitate voluntary repatriation which should be adequately and formally reflected in the MOU. These include acceptance by the countries of origin of responsibility for the nationals, as well as their duty to work to alleviate causes of flight and facilitate safe and orderly return. By providing guarantees of safety after repatriation, through, inter alia, amnesties, waiver of prosecution and/or repeal of harsh and discriminatory laws, enactment of new laws or measures to encourage reconciliation between rival groups, the ground may be prepared for safe, orderly and durable repatriation programmes.

(ii) Both UNHCR and countries of asylum have a legitimate interest in the consequences of return, which are inextricably linked to the durability of the solution. UNHCR establishes, where necessary, a presence in the country of origin for the dual purpose of assistance and protection until the repatriants have achieved a satisfactory level of reintegration. Integration assistance is also of fundamental importance, particularly in situations where repatriants return to their country after a long absence. As the focal point of the international community's concern for refugees, and because of its role as coordinator of international assistance in this respect, UNHCR is in a position to facilitate the mobilization, coordination, and channeling of funds for initial reintegration assistance to the repatriants as well as to the communities affected by their return, often through internationally-funded and implemented projects. UNHCR's protection role consists mainly of ensuring that non-discrimination and other fundamental human rights are fulfilled, and for this purpose its right of direct and unhindered access to the repatriants has been recognized as fundamental. The Office may also be called upon, particularly in countries still suffering some internal polarization, to serve as a temporary bridge of communication between opposing parties.

V. CONCLUSION

9. Conclusion 40 (XXXVI) of the Executive Committee, inter alia, recommended that "consideration should be given to the further elaboration of an instrument reflecting all existing principles and guidelines relating to voluntary repatriation for acceptance by the international community as a whole. "In the discussions leading up to the adoption of this conclusion, it was felt that, while the existing provisions and international practice already provided a substantial theoretical framework for the cooperation of States in the promotion of voluntary repatriation, there was a need for guidelines governing voluntary repatriation which would consolidate existing principles and practical experience into one document.

10. UNHCR shares this view. The experience of the Office is that, just as the principles remain fundamental, programme adaptations will also be necessary depending on the exigencies of each individual operation. Broadly agreed-upon guidelines would help to structure this adaptation both for UNHCR and for all participating States. This is particularly important at a time when voluntary repatriation is increasingly the durable solution of choice even in situations of uncertainty or unrest. Guidelines reflecting clear international consensus on basic principles, practical modalities and roles and responsibilities of all involved parties, would greatly facilitate the planning and implementation of programmes. They would be drafted so as to assist with specific practical difficulties that may be experienced such as those which have arisen in recent repatriation programmes, for example, the danger posed by repatriation to mined areas, the difficulties of apportioning scarce land among repatriants and access or return to previously occupied land.

11. The Executive Committee, in fact, went further in recommending, in effect, the consideration of a multilateral instrument. The Sub-Committee of the Whole on International Protection might also wish to give thought to this proposition, perhaps as the longer-term goal of broadly endorsed guidelines. The guidelines would, however, appear to be the most appropriate first step to pursue.

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1 The 1948 Universal Declaration of Human Rights at Article 13 (2), the European conventions for the Protection of Human Rights and Fundamental freedoms at Article 2, the International Convention on the Elimination of All Forms of Racial Discrimination at Article 5, the International Covenant of Civil and Political Rights at Article 12, and the American Conventions on Human Rights at Article 22.

2 See paragraphs 8 and 1, respectively, of the Statute.

3 See also Article 34 which calls on States as far as possible to facilitate the assimilation and naturalization of refugees.

4 See, for example, the commitment to respect the ability of returnees to choose the destination in their countries, as well as freedom of movement and free choice of place of residence under the same conditions as other nationals of there countries.