Report of the June 25 Meeting of the Sub-Committee of the Whole on International Protection

EC/SCP/76

I. INTRODUCTION

1. The Sub-Committee of the Whole on International Protection (Sub-Committee) met on 25 June 1992 under the chairmanship of Ambassador Bernard de Riedmatten (Switzerland). The following agenda (EC/1992/SCP/CRP.8) was adopted:

(a) Draft Report of the 13-14 April Meeting of the Sub-Committee of the Whole on International Protection;

(b) Implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees - Some Basic Questions;

(c) Any other business.

Representation on the Sub-Committee

2. A point of order was raised concerning the status of Yugoslavia (Serbia and Montenegro) and its participation in meetings of the Executive Committee.

3. The representative of the United States of America indicated that his Government does not consider Serbia/Montenegro to be the continuation of, or the sole successor to, the Socialist Federal Republic of Yugoslavia and believes that it is not entitled to assume that seat in international organizations. The representatives of Australia, Austria and Norway (speaking on behalf of the Nordic Countries) and the Observer of Portugal (on behalf of the European Community and its member States) reserved the positions of their Governments, indicating that they had not accepted the automatic continuity of the Federal Republic of Yugoslavia in international organizations, including the United Nations, and that the presence of Yugoslavia was without prejudice to further decisions on its status to be taken within the framework of the Security Council and the General Assembly. In reply, the representative of Yugoslavia recalled the declaration made by her Government on 27 April 1992. She emphasized that her Government had committed itself to all its obligations under various international instruments and had indicated its intention to continue membership in all international organizations, including UNHCR. She voiced her strong objection to the raising of this question in a purely humanitarian forum.

4. In settling the point of order, it was decided that, pending a resolution of the matter in the Credentials Committee of the Security Council and other relevant organs, the positions of the different delegations would be reflected in the reports of the meetings of the Executive Committee and its Sub-Committees during the week of 22-26 June 1992.

II. DRAFT REPORT OF THE 13-14 APRIL MEETING OF THE SUB-COMMITTEE OF THE WHOLE ON INTERNATIONAL PROTECTION

A. Adoption of the draft report of the 13-14 April 1992 meeting of the Sub-Committee

5. In his opening remarks, the Chairman welcomed Ethiopia and Hungary, the two new Members of the Executive Committee. The UNHCR Director of International Protection recalled the discussion on statelessness at the 13-14 April 1992 meeting of the Sub-Committee. He reported, based on research conducted by the Centre for Documentation on Refugees, that there was little information available in the public domain on statelessness, beyond that previously provided to the Sub-Committee. UNHCR had information from its own sources, including Branch Offices and Governments, attesting to the seriousness of the problems at issue, but was not in a position to make such information freely available. However any delegations wishing to approach UNHCR on a particular issue or concern regarding statelessness should feel free to do so.

6. The Sub-Committee adopted the draft report of its 13-14 April 1992 (EC/1992/SCP/CPR.9) meeting without debate.

III. IMPLEMENTATION OF THE 1951 CONVENTION AND 1967 PROTOCOL

7. In introducing the discussion on implementation, the Chairman noted that the Sub-Committee had agreed at its last meeting to take up this Category 1 topic to review certain specific questions arising out of previous reports on implementation of the 1951 Convention and 1967 Protocol relating to the Status of Refugees (1951 Convention). He observed that a number of States had submitted replies to the questionnaire on implementation which showed the importance attached by States to implementation of the 1951 Convention. He ended by noting that a draft conclusion was not foreseen at this time, and that he would attempt to sum up the discussion at its close.

8. In his introduction, the Director of International Protection noted that the subject had been taken up by the Sub-Committee on two previous occasions. Key implementation issues set out in the discussion note presented by UNHCR (EC/1992/SCP/CRP.10) included how to improve promotion efforts, increase the effectiveness of monitoring, overcome obstacles to meeting Convention obligations, and avoid selective application of the refugee definition criteria. Concerning promotion and monitoring, he reported that 27 States had replied to the implementation questionnaire, and said that the Sub-Committee might wish to consider a renewed call for replies, their wider distribution, or some type of review process which could include periodic meetings of States Parties. In pointing out that some States have experienced difficulties in meeting their obligations under the Convention, he observed that some provisions of the 1951 Convention are of fundamental importance for all refugees, while other provisions are focused on integration of those refugees for whom a durable solution in the country of asylum is envisaged. Some of the obstacles to fulfilling 1951 Convention obligations could be addressed by more extensive public information campaigns, along with expanded training and promotion activities. Lastly, he drew attention to problems arising from selective interpretation of the refugee definition. In this regard, he emphasized that the discussion note dealt solely with the scope and proper application of the 1951 Convention and 1967 Protocol, and that the note was not concerned with issues that appear elsewhere on the Sub-Committee's agenda, such as protection of persons outside the Convention. He also pointed out that the example given in the discussion note of selective interpretation of the refugee definition, i.e. denial of status to individuals fleeing from a situation of civil war, was chosen not because the Office views all civil war victims as 1951 Convention refugees, but because, in some instances, even those with valid claims to status under the Convention have been automatically equated with all others fleeing the country and thus denied status.

9. A number of delegations which took the floor welcomed the delegations of Ethiopia and of Hungary, who thanked the Chairman and the other delegations for their greetings.

10. Many delegations expressed their appreciation for the thought-provoking discussion note, but noted that their capitals were still studying it and that their remarks were, therefore, necessarily of a preliminary nature. With regard to promotion and monitoring, differing views were expressed on the idea of regular reporting, reflecting contrary views on whether States are over-burdened by the reporting obligations of the United Nations system. Training activities were supported by several delegations, with suggestions that they be particularly targeted for key groups rather than aimed broadly at the general public, be closely coordinated with public information efforts, especially as regards use of the term "refugee", and be considered a basic element of protection.

11. Several delegations welcomed recognition of the difficulties experienced by some States in fulfilling 1951 Convention obligations. One delegation said that the distinction raised in the discussion note between provisions of the Convention, such as non-refoulement, which cannot be deviated from, and other provisions which are aimed at economic and social integration of refugees, reflected his country's view on the relative importance of these articles. He said that the most important issue was that most refugee situations are temporary, and that it is appropriate to organize protection and assistance efforts accordingly. In that light, he recalled that 1992 is the year of voluntary repatriation. On the question of obstacles to implementing the 1951 Convention, one delegation noted the particular vulnerability of refugee women and children, especially in camps. Another delegation noted that the main problem in the Horn of Africa was safe passage of humanitarian aid and outlined recent initiatives by countries in the Horn to address the deteriorating situation of aid distribution.

12. On the question of interpretation of the refugee definition, differing views were expressed on the notion of resort to an advisory opinion of the International Court of Justice (ICJ). There was general agreement that a range of possibilities should be considered for methodologies for resolving differences of interpretation. However, one delegation felt that resort to the ICJ might be unacceptable to Governments as compromising their sovereignty, and was joined by two other delegations in urging caution before further developing this point. Another noted that the United Nations could ask for an advisory opinion, but that this was not a way to resolve States' differences. Another delegation asked if it had ever been envisaged to form an ad hoc committee to review all matters arising out of the 1951 Convention, and wondered if the Human Rights Committee could be entrusted with such a task.

13. The example given in the discussion note of differences in interpretation of the refugee definition was also discussed. One delegation noted that all delegations present would accept the idea that persons fleeing civil war situations were not precluded from status under the 1951 Convention, and said that no Government present would challenge the notion that such a claim could be heard individually. In view of the tension created by use of that particular example, he felt it was better to focus on the right to have a claim heard. Another delegation expressed appreciation for the Director of international Protection's clarification that the extended refugee definition was not being discussed that day. Another, however, noted that those fleeing a civil war should be accorded protection, whether it is legal or political.

14. In responding to the debate, the Chief of UNHCR's General Legal Advice Section noted that both specific issues and general questions had been raised. The specific issues concerned resort to the ICJ and the selective application of the refugee definition, while the general questions included both practical and conceptual concerns.

15. With regard to the ICJ, she recalled that this was not the first time that this suggestion had been placed before the Sub-Committee for consideration. She also recalled that Article 65 of the Statute of the ICJ provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Referring to the Charter, she noted that Article 96 stated that the General Assembly or the Security Council may request an advisory opinion on any legal matter, and that other organs of the United Nations, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the ICJ on legal questions arising within the scope of their activities.

16. With respect to refugees fleeing from civil war as an example of selective interpretation of the refugee definition, she commented that the Director of International Protection had stated that the Office was not proposing some type of expanded definition and referred delegations to paragraph 18 of the discussion note for other examples of problems in interpretation. UNHCR was seeking to clarify the definition as it exists, not to expand it. The example of refugees fleeing a civil war was given because it is one that has arisen as a protection issue.

17. The general question on practical suggestions for action could be answered with reference to paragraphs 5, 7, and 11 of the discussion note. As for the general question on the conceptual nature of parts of the discussion note, she noted that they had been raised for the purposes of debate, and that the Division of International Protection had hoped to receive new inspiration from an exchange of views. On the relationship between protection and public information, she observed that it had been very much a part of the recent internal reflection on protection, and had also been discussed in last year's Note on International Protection (A/AC.96/777). With regard to the question on the Human Rights Committee, she said that it had been established to review the International Covenant on Civil and Political Rights, and she doubted that its mandate could be extended.

18. The Director of International Protection noted that the Office was well aware of the changes, both positive and negative, that had occurred in refugee protection, and said that this was why the High Commissioner had established an internal Working Group on International Protection. He said that the recommendations of the Working Group would be submitted to the High Commissioner, and would be reflected in this year's Note on International Protection . In responding to the question on refugee women and children, he said that this was an ongoing concern of the Office, exemplified most recently by the appointment of a Senior Coordinator for Refugee Children to join the Senior Coordinator for Refugee Women.

19. In his summary, the Chairman noted that a variety of points had been raised which did not lend themselves to clear categorization, so he intended to keep his comments brief. He observed that delegations had agreed that the discussion was of a preliminary nature, and that the clarifications and responses to questions provided by the Secretariat had been helpful. He expressed the view that, at some point, delegations might consider useful an additional note raising a number of quite specific and practical concerns.

IV. ANY OTHER BUSINESS

Draft conclusion on the "Ceased circumstances" cessation clauses

20. The Chief of the General Legal Advice Section recalled that the draft before the Sub-Committee was the third version to be circulated. The revisions in the present text were based on the discussions at the previous inter-sessional meeting in April as well as subsequent discussions with some delegations, as had been requested by the Sub-Committee.

21. In the ensuing debate, a number of delegations noted that the revised text largely met their concerns. However, there were still some issues to be addressed, concerning wording as well as substance, and it was recommended therefore that an open-ended, ad hoc working group be convened at the end of the meeting to reach agreement on a text for submission to the next Sub-Committee meeting.

22. Noting the broad consensus among the delegations, the Chairman then decided to convene an open-ended working group to discuss the various proposals for further amendments. On this basis, the working group was convened immediately following the end of the inter-sessional meeting, and produced the following draft conclusion:

The Executive Committee,

Recalling Conclusion No. 65 (XLII) which, inter alia, underlined the possibility of use of the cessation clauses in Article IC (5) and (6) of the 1951 Convention in situations where a change of circumstances in a country is of such a profound and enduring nature that refugees from that country no longer require international protection, and can no longer continue to refuse to avail themselves of the protection of their country, provided that it is recognized that compelling reasons may, for certain individuals, support the continuation of refugee status;

Taking into account that the application of the cessation clause(s) in the 1951 Convention rests exclusively with the Contracting States, but that the High Commissioner should be appropriately involved, in keeping with the role of the High Commissioner in supervising the application of the provisions of the 1951 Convention as provided for in Article 35 of that Convention;

Noting that any declaration by the High Commissioner that the competence accorded to her by the Statute of her Office with regard to certain refugees shall cease to apply, may be useful to States in connection with the application of the cessation clauses as well as the 1951 Convention;

Believing that a careful approach to the application of the cessation clauses using clearly established procedures is necessary so as to provide refugees with the assurance that their status will not be subject to unnecessary review in the light of temporary changes, not of a fundamental character, in the situation prevailing in the country of origin;

Stresses that, in taking any decision on application of the cessation clauses based on "ceased circumstances", States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist;

Underlines that an essential element in such assessment by States is the fundamental, stable and durable character of the changes, making use of appropriate information available in this respect, inter alia, from relevant specialized bodies, including particularly UNHCR;

Emphasizes that the "ceased circumstances" cessation clauses shall not apply to refugees who continue to have a well-founded fear of persecution;

Recognizes therefore that all refugees affected by a group or class decision to apply these cessation clauses must have the possibility, upon request, to have such application in their cases reconsidered on grounds relevant to their individual case;

Recommends, so as to avoid hardship cases, that States seriously consider an appropriate status, preserving previously acquired rights, for those persons who have compelling reasons arising out of previous persecution for refusing to re-avail themselves of the protection of their country, or who cannot be expected to leave the country of asylum due to a long stay in that country resulting in strong family, social and economic links there;

Recommends that States, in giving effect to a decision to invoke the cessation clauses should in all situations deal humanely with the consequences for the affected individuals, and that countries of asylum and countries of origin should together facilitate the return, to assure that it takes place in a fair and dignified manner. Where appropriate, return and reintegration assistance should be made available to the returnees by the international community.