Statement of Dennis McNamara, Director of the Division of International Protection to the Standing Committee of UNHCR's Executive Committee Meeting

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Mr. Chairman, Distinguished Delegates,

I am pleased to be with you today, both Members and Observers of the Executive Committee, and representatives of our NGO friends, to report briefly on developments in relation to protection since we met last October.

You have before you, in addition to the Note on International Protection, three other documents: a Note on Resettlement of Refugees with Special Needs; a note on Composite Flows; and a Progress Report on the Informal Consultations. We have also prepared an Oral Report on the Application of the Exclusion Clauses, for your information. Ms. Erika Feller, Deputy Director of the Division, will introduce the Note on International Protection, and other colleagues from the Division will speak to the other agenda items.

The theme of the Note, as requested by ExCom is the inter-relationship and complementarity of human rights issues and principles across the entire refugee and protection spectrum.

In light of this, we are very pleased that Mr. Enrique ter Horst, the Deputy High Commissioner for Human Rights, has been able to join us today.

Mr. Chairman,

Exceptionally - and with your agreement - I would like to devote most of my statement today to a report on the "reach out" dialogue on protection issues which we have initiated with some Member States of the Executive Committee in recent months.

We are meeting, as you are all aware, at a time of acute financial stringency for UNHCR. As a result, programmes are being reduced and staff reductions, both at Headquarters and in the field, are underway. Protection work is particularly labour intensive, and in recent discussions some of you have indicated a willingness to specifically fund protection activities. This is most welcome support and we are in the process of identifying appropriate projects in response.

At the same time, I would like to emphasise the obvious: without assistance programmes, UNHCR may not be in a position to carry out its protection function. The linkage between the two is inseparable, including with regard to our mandated responsibility for the well-being of refugees whom we repatriate. Assistance provides both the essential means and the access for our protection work for refugees and returnees.

Before I turn to my report on discussions with members of this Committee on the protection role of UNHCR, I would like to share some of our major preoccupations during the past year. As usual, there have been very positive developments, and also serious concerns.

On a positive note, despite grave protection challenges, most asylum-seekers have received protection, and most states have acted in accordance with internationally accepted standards for the treatment of refugees. Despite the cost and the difficulties to host countries in Asia, Africa, and the Middle East, millions of Afghans, Sierra Leoneans, and Cambodians - among others - continue to enjoy asylum and a degree of security in neighbouring states (in some cases, for periods of many years) which is still not to be found in their own countries. European states have continued to provide temporary protection to hundreds of thousands of persons from former Yugoslavia who cannot yet return, while a group of countries have offered opportunities for a new life for tens of thousands of refugees through resettlement.

Despite these and other best efforts, I regret to report that in recent months we have also witnessed widespread violations of agreed international protection standards, in some cases resulting in loss of refugee lives. Large numbers of refugees and asylum seekers have been victimised; many have been expelled or refouled; others have been pushed-off or refused admission to safety; and too many refugees in camps have suffered armed attacks, including sexual and other attacks on refugee women and children. In our protection discussions today, which will focus on international standards and processes, I would hope that we could also keep in mind the human consequences of these violations for the victims.

I would like to underscore the special needs of refugee women and children in this context: as we meet here, many refugee women continue to live in fear of attack and rape. In some places, children as young as seven are carrying automatic weapons and wearing child-size combat boots. If our guidelines with respect to protection of refugee women and children are to have proper impact on the harsh reality on the ground, much more concerted and sustained action from all of us is required.

We acknowledge that, in addressing refugee protection issues, legitimate state concerns regarding abuse of asylum systems must be taken fully into account. We continue to work closely with states to minimise these problems through a number of measures: expedited procedures for unfounded claims; streamlined review processes; and active support for the return of properly rejected cases. But responses to abuse - and to feared abuse - need to be proportionate and reasonable: practices such as detention for unduly long periods, including of families, and the erection of other legal and administrative barriers to block proper access to asylum procedures - which we have continued to see in recent months - must not become part of an accepted deterrent regime. Such measures do not effectively counter abuse, but they do serve to undermine the foundations of the protection regime.

UNHCR's responsibility for the proper integration of those it assists to repatriate - mandated by this Committee - has required our continued role in difficult post-conflict environments, where conditions for return are less than ideal. From Bosnia and Georgia to Rwanda and Liberia, returnees can face serious threats to their security, major hurdles in reclaiming their property, and other legal and administrative obstacles. It is particularly important for viable post-conflict repatriation that the basic rights of returnees are guaranteed, and their proper and sustainable reintegration supported in all its dimensions. We must also be given access to returnee populations to monitor conditions of return. In such environments, if returnee populations are to be stabilised and secondary refugee movements avoided, there is a need for greater international effort to restore confidence and respect for the rule of law, and the basic judicial, legal and civil structures which uphold it.

Such efforts can only be enhanced by the complementary efforts of our natural partners, including the Office of the UN High Commissioner for Human Rights, UNDP and UNICEF, the ICRC and the FRCS, and, of course, NGOs. For similar reasons, UNHCR is currently putting forward its humanitarian concerns at the Rome Conference on the establishment of an International Criminal Court. As we have seen with the existing Tribunals for Rwanda and former Yugoslavia, accountability and exclusion of perpetrators of atrocities remain key considerations in the refugee context.

Resettlement is also on our agenda today, and Mr. Shelly Pitterman will introduce the Conference Room paper shortly. I would simply reiterate that resettlement remains one of the key elements of a comprehensive, global protection response. As we discussed yesterday at the Annual Consultation on Resettlement, resettlement is essentially about protection needs, not just numbers. Our joint efforts to ensure that resettlement needs are responded to effectively by countries in a position to assist, remain an important priority for UNHCR. We will continue to improve our performance in this area also, and look forward to continuing the regular consultations with Governments and NGOs to this end.

Mr. Chairman,

I would like now to turn to our dialogue with some Members of this Committee on the protection role of UNHCR and ExCom's relationship to that role. These discussions arose largely out of the protection preoccupations which I addressed in my statement to the Plenary of the Executive Committee on 16 October 1997, and are strongly supported by the High Commissioner.

The purpose of this dialogue is twofold: to ascertain the views of members of ExCom on key issues, ranging from the basis of UNHCR's protection mandate to the ExCom process on formulating Conclusions on protection, and to elicit enhanced support for our protection role.

Linked closely to this is the challenge of identifying the crucial common ground between UNHCR and its supporting States, in carrying out one of the most difficult mandates entrusted to a UN agency. In this role our objectives are humanitarian, in the sense of promoting human well-being; our parameters are provided by the international rule of law; while the backdrop is often one of harsh political realities. This humanitarian path for us is not only narrow, but is often hard to clearly define, between the extremities of unrealistic idealism on one side and political expediency on the other. We are convinced, however, that a middle way is both possible, and supportable.

In our efforts to "reach out" and promote a dialogue with ExCom members in all regions, in recent months my colleagues and I have visited a number of capitals and met with some missions in Geneva. This is an ongoing process, and we plan to continue this dialogue, as some of you have strongly suggested, in the months ahead. (I should add that we did not visit the States directly concerned with the Great Lakes problems, in view of the separate, high-level dialogue which the High Commissioner has personally undertaken in that region recently).

Although time-consuming, for us the reach out dialogue has been an exceptional and worthwhile effort, made possible by specific financial support from Norway, Sweden and the United States, for which we are extremely grateful in view of our current financial constraints.

From this exercise we are, I believe, obtaining a valuable cross-section of views on protection issues from interested States. Our discussions range from basic problems in implementing UNHCR's protection mandate, to specific concerns regarding the ExCom process in formulating Protection Conclusions. It is a wide-ranging and varied dialogue, covering global, regional and national aspects. As agreed, I will endeavour to give you a non-attributable summary of the main issues discussed and views shared so far. This obviously cannot be exhaustive, but will concentrate on those areas where views have been expressed by more than one government.

A notable starting point was the broad appreciation, especially in capitals, that we are undertaking such a dialogue at this time. Many governments shared our concerns regarding the problems in implementing our protection mandate, and appreciated the magnitude of the current challenges facing the Office in this area. All expressed broad support for UNHCR's protection role, with a number emphasising its overarching importance for the work of the Office. While some spoke of specifically funding UNHCR's protection work, others agreed to raise their voices whenever possible in support of international protection principles, in light of the current challenges. Several indicated their willingness to be part of a "friends-of-protection" type - process, if we felt that might be helpful.

A number of refugee-hosting members of ExCom expressed strongly the view that the burdens imposed by large refugee influxes were not equitably shared. This was particularly so for those with refugee populations which do not attract broad political interest or support and are consequently inadequately funded. It was emphasised that while regional particularities needed to be taken into account in responding to refugee movements, this should not be at the expense of sustaining international solidarity in the overall response.

Amongst those governments consulted, there was also broad support for the Refugee Convention and Protocol and for the protection principles underpinning them. Most felt that despite the limitations of these instruments in responding to some aspects of current refugee situations, it would be unwise to attempt to review them at this time. Others supported the need for regional complements to the Convention and Protocol, while emphasising the need not to "de-internationalise" the response to refugee issues. A number of States suggested that greater efforts were needed to ensure compliance with the refugee treaties, with possibly enhanced reporting to ExCom by UNHCR on non-compliance. Member States who had not acceded to the two Conventions relating to stateless persons also agreed to actively look into the possibility of doing so. Some States also urged UNHCR to play a more vigorous role in addressing situations of statelessness.

Understandably, in some capitals national preoccupations with specific refugee issues strongly influenced the discussions. In this context, areas were identified which it was felt were not adequately addressed, either by the existing legal frameworks or current practice. While additional resources could help to mitigate some of these deficiencies, UNHCR was also encouraged to continue and even increase its efforts to address "gaps" in the international protection regime. These include attempts to promote a more comprehensive temporary protection regime; to more systematically address the problems of internally displaced populations; and to promote repatriation, despite continuing problems in many countries of origin.

Most of the capitals visited shared the concern at the handling of protection issues in the Executive Committee process. Some felt that the entire process should be reviewed; others expressed concern that ExCom was increasingly dominated by a relatively small number of States; while a number felt that with its expanded membership, ExCom faced the danger of becoming a "mini GA", with the attendant risk of being dominated by political, rather than humanitarian, considerations. The apparent equivocal support for protection in the ExCom context was acknowledged by a number of States, some of whom urged increased preparatory consultations - including on a regional basis - by UNHCR as one part of the response. A number of States encouraged UNHCR to more actively consult and cooperate with regional bodies - both in the field and as part of the ExCom process. Others felt that independent experts should be commissioned to undertake studies of selected issues for consideration by ExCom. I look forward to hearing your views also on these suggestions.

Mr. Chairman,

Most States consulted felt that the ExCom conclusions on protection served a useful purpose, both domestically and more broadly, while acknowledging that the process of their formulation and agreement had become increasingly difficult. Considerable concern was expressed by some States that the process might be leading to an impasse. There was broad agreement that the Conclusions should form part of the positive development of refugee jurisprudence - while taking into account the legitimate concerns of States - if the process was to be useful. Some felt that ExCom should itself reflect further on this overall process and the objectives of it, while others urged that protection discussions, especially on global issues, should return to the plenary of ExCom.

In view of these widely shared concerns, the Executive Committee may wish to consider devoting one of its future sessions to reviewing the nature and objectives of this process. Whether Conclusions should be shorter, more focused, thematic or differently prepared, might form part of this consideration. We would welcome, of course, your views on this.

Mr. Chairman,

This is an inadequate summary of the exchanges with some Member States which have taken place since we last met. For UNHCR this is clearly part of a broader and ongoing dialogue, and it would be premature for us to offer conclusions or recommendations. But the discussions so far have underscored several key points:

First, and perhaps most important, is the need for all Members of the Executive Committee to lead by example in the area of refugee protection. This requires that the carefully-crafted and treaty-based principles of protection be steadfastly upheld, even in the face of strong domestic political pressures. The "export value" of positive state practice by ExCom members is extremely important to UNHCR, just as non-compliance by key States and regions is quickly emulated elsewhere.

Second, positive State practice is, in many respects, a sine qua non for consistent international backing for refugee protection. As we saw starkly at the last Executive Committee plenary, the need for positive voices in support of this system has seldom been greater. This need is likely to remain paramount, as UNHCR attempts to meet its law-based protection responsibilities in often lawless conflict and post-conflict environments.

For its part, UNHCR will make renewed efforts to meet its statutory responsibilities in this area: to promote the admission of refugees to States, while working closely with States on measures to reduce the number of refugees requiring protection; to assist efforts to promote lasting solutions to refugee problems; to promote refugee law, including the international instruments, and to supervise the application of these instruments by States parties.

Finally, as mentioned, we would like to continue this dialogue, both with concerned States, and in parallel with a range of non-State actors, including regional organisations, our sister UN bodies and agencies, the international financial institutions, our NGO partners, advocacy groups and possibly even the private sector. (In some contexts I would hope that we could seek the views of refugee leaders as well). A number of States have welcomed this proposed effort to reach out to a broader constituency. I am convinced that an expanded coalition of like-minded actors is essential in these difficult times, and I look forward to close collaboration and advice from members of this Committee, as well as from our NGO friends, to carry this process forward.

Mr. Chairman,

I have not done justice to the discussions we have had with States, but having benefited from your personal support, and that of a number of members of ExCom in this process, I wanted to share with you some of the main responses to date. We look forward to your further advice and guidance.

Thank you.