International Protection (submitted by the High Commissioner)
A description of developments in 1989 in the field of international protection of refugees is contained in the Report of the United Nations High Commissioner for Refugees to the General Assembly through the Economic and Social Council (Document E/1990/60).
The present Note analyzes in general terms the current state of the international protection of refugees. In addition it looks in more detail, from a UNHCR perspective, at suggested bases for global refugee policies in the future and certain ways in which they might possibly be developed.
1. The basic structures to ensure the international protection of and assistance to refugees were put in place some four decades ago. The Office of the United Nations High Commissioner for Refugees was set up as of 1 January 1951, while the United Nations Convention relating to the Status of Refugees was adopted in July 1951. The Convention and the Office both were the product of the post-war co-operative spirit and reflected the determination of the international community to protect and assist a vulnerable group of persons, within the framework of international law and on the basis of international solidarity with their plight and international accountability for their human rights. Despite these arrangements, the refugee and asylum-seeker problem today is bigger, more complex and more persistent than ever. The human rights of the individuals concerned are less in focus, asylum as a main basis of refugee protection is increasingly under challenge and the available resources and political will to guarantee refugees' rights, meet their needs and offer them viable long-term prospects are no longer adequate.
2. In terms of the international protection of refugees, these are developments with serious negative consequences. The humanitarian considerations and human rights principles at the base of international concern for refugees are of no less relevance today than they were in 1951. Refugees are no less in need and no less deserving of protection. But the perception has Changed in the face of an asylum situation that is far more complex than the one the 1951 Convention was drafted to cover. The 1951 Convention and the Statute of the Office of UNHCR both reflected the classical approach to the protection of refugees. The essential purpose of the Convention was to provide for the legal status of the refugee in the country of asylum. It conceptualizes a refugee as an individual victim of persecution and implicit in it is the assumption that the main obligations to refugees are those of asylum states. The realities of modern refugee movements are however somewhat different. They include the mass - rather than individual - character of many intra-regional movements, the fact of transcontinental movements and the reality that motives for departure are often mixed, on occasion sitting uneasily with the concept of persecution on defined grounds. To these considerations needs to be added the fact of a migratory or abusive element now part of the flow of asylum-seekers. Finally socioeconomic variables, compounded by the protracted nature of refugee problems in many asylum countries and coupled with political developments at the regional level, have led to changed attitudes to the alien in general.
3. The present magnitude, scope and geographic focus of the refugee and asylum-seeker problem has led a significant number of States to view it, in its entirety, essentially as a problem of immigration rather than protection of basic rights. Where asylum-seekers were once approached by these States as prima facie the abused and persecuted who should attract a broadly-based humanitarian response, they are now more often regarded primarily as potential back-door immigrants whose entry is to be resisted. Asylum and migration problems are increasingly being treated as one and the same, requiring an integrated approach based on a philosophy of immigration control. Against this background, States have come to appreciate a need for some necessary adjustments in asylum policies, in part to ensure a better sharing of responsibilities by all concerned States, including countries of origin, rather than the asylum States alone. In fact, there are several separate national efforts currently underway to reassess respective national asylum policies and the international handling of the refugee problem as well as to develop a comprehensive refugee policy which more adequately responds to the needs of the new global refugee situation. In such efforts, the perspective from which the refugee problem is approached and the assumptions or premises on which policy-makers proceed are both of critical importance.
4. The purpose of this Note is to provoke some reflection about the responsibilities of States and the meaning of international solidarity and human rights protection in the refugee context, with a view to underpinning suggestions for future directions for refugee policy that States and the international community might work together to develop. To this end, the Note overviews the types of problems currently faced in the protection area and suggests certain considerations which UNHCR believes should be part of any broadly-based approach to the refugee problem over the coming decade.
THE PROTECTION FUNCTION
5. Paragraph 1 of UNHCR's Statute (annexed to General Assembly Resolution 428 (V) of 14 December 1950) formally mandates the High Commissioner to protect refugees as well as to seek durable solutions to their problems. The protection function provided the basic raison d'être for the creation of UNHCR and gives the Office its distinctive position among the agencies of the United Nations. This function is operational, humanitarian, non-political and global in its application.
6. The protection function carries with it day-to-day responsibilities where the rights of refugees are jeopardized or the general situation requires UNHCR's intervention. It has as its ultimate objective the attainment of the appropriate durable solution to refugee problems. Protection also involves promoting, safeguarding and developing the fundamental principles of refugee protection and strengthening international commitments to treat refugees humanely and to respect their basic rights. Over the longer term, UNHCR's role is to develop and promote a regime of refugee protection that is based on solid legal foundations and is internationally recognized.
CURRENT PROTECTION PROBLEMS
7. There are some 15 million refugees in the world, spread across five continents. As to their protection, it must be recognized that many States co-operate positively and constructively with international efforts to secure the rights of refugees and to meet their needs. Fair procedures to determine status are now in place in a large number of States, including those not party to any international instruments binding them to a level of protection. Asylum is made available to a significant extent to persons in need, often in spite of serious local difficulties. In addition, concerted efforts have been made at the regional level to find humanitarian solutions to long-standing refugee problems, in full respect of the rights of the individuals involved.
8. On the other hand, there are protection problems which give cause for concern. Each refugee situation generates its own, situation-specific protection problems. Generally, these problems are, in the first instance, of an operational nature, difficult and occasionally intractable, encountered mainly where there are communities of refugees for whom no lasting solution to their situations has yet been found. Secondly, there is the serious and growing challenge to the institution of asylum as a main way of offering protection to refugees. Finally, there is an overriding problem, that is the financial crisis facing the Office, which has adversely affected UNHCR's ability to protect refugees.
A. Operational problems
9. The Physical security of refugees during their flight and after arrival in asylum countries is a paramount concern. Military or armed attacks on refugee camps or settlements destroy lives and property, refugees are forcibly recruited into regular or irregular armed forces and women and children refugees are subjected to physical violence or sexual abuse. Denial by governments of access for UNHCR to refugee populations further jeopardizes the safety of the refugees by impeding any effective monitoring or intervention. Detention of refugees and asylum-seekers in circumstances outside the agreed guidelines on detention adopted in 1986 by the Executive Committee of UNHCR is a related concern. These guidelines accepted that detention of both groups should be considered only as an exceptional measure, resorted to on grounds specifically prescribed by law, for the purpose of verifying the identity of the individual, determining the documents on which a claim to refugee status is based, dealing with cases of destruction of documents or false documents and protecting national security or public order. In a number of States, refugees and asylum-seekers are automatically detained, on occasion for considerable periods, with no possibility of judicial or administrative review. Illegal entry or presence is used by States as a ground for detention, although this may not be consistent with Convention obligations. In some States, closed camps are a matter of policy, where the constant presence of barbed wire and police or armed personnel and the very minimal living conditions in themselves lead to disturbances and violence among camp occupants.
10. Less dramatic, perhaps, but of direct impact on the lives and well-being of refugees and their families, are restrictions on full enjoyment of rights guaranteed in international instruments, notably the 1951 Convention relating to the Status of Refugees. The Convention contains comprehensive provisions on obligations to and rights of refugees in areas as diverse as gainful employment, social security, public relief and education. Overseeing its implementation is a protection responsibility of UNHCR. Areas where problems regularly occur include in relation to freedom of movement (Article 26), movable and immovable property (Article 13), employment rights (Articles 17-19), identity papers and travel documents (Articles 27 and 28) or naturalisation (Article 34). Proper fulfilment of undertakings by States is affected by many factors, including those outside the immediate control of governments, such as severe economic difficulties, shortages in housing, land and natural resources, or the effects of continuing man-made and natural disasters. Fulfilment is also, however, a function of political will. Where facilitating enjoyment of rights is seen as a "pull factor" working to attract non-refugees, or as acting against voluntary repatriation where this is the preferred durable solution, curtailment of rights becomes a deliberate deterrent measure. Despite widespread recognition that the grant of asylum is a peaceful and humanitarian act which should not be a cause of tension among States, preservation of friendly relations with neighbouring countries may also play a role in decisions taken on refugee rights. Naturalization, for example, is often a politically sensitive issue, because of historical animosities, ethnic differences or on-going political conflicts. In a number of countries, there are also serious bureaucratic impediments to full implementation, including a lack of manpower and of adequate training of officials. Protection training and promotion activities, instituted by UNHCR to overcome such difficulties, have proved only partially effective.
B. The asylum crisis
11. Asylum today is an umbrella term for the sum total of protection provided by a State to refugees on its territory in the exercise of sovereignty. This may involve continuous protection under circumstances allowing the refugee to take up permanent residence in a new community. It then, in effect, serves as the durable solution to the problem. It has, however, increasingly become equated with basic protection for a temporary period, which has meant no return of the refugee to frontiers of territories where life or freedom is endangered, coupled with the possibility of remaining on the territory of the sheltering State until a durable solution, outside that State, can be identified.
12. Clearly, the arrival of large numbers of asylum-seekers and the absorption of some or all of them as refugees, even on a temporary basis, can create serious strains for host countries. This is particularly the case for the poorer communities where the ability and readiness of the host population and the government to shoulder the resulting burden may be severely affected by socioeconomic problems. It is also understandable in developed countries with overburdened asylum structures, costly social services and a disenchanted public opinion. One reason for the latter is the notable number of asylum-seekers arriving in many States, without refugee-related reasons to substantiate their claims, which is in itself a major factor complicating the asylum question both for host States and UNHCR.
13. It needs to be emphasized, however, that being a refugee and enjoying asylum are inextricably linked. In some senses one can say that asylum is the very condition of a refugee's existence. Once a refugee leaves his or her country, the prerequisite for all that follows is at least temporary asylum. Both international conventions and customary international law reaffirm the prohibition against return or refoulement of a refugee to situations endangering life or freedom as one of the most fundamental principles of refugee protection.
14. The institution of asylum is thus of critical importance for refugee protection, yet it is increasingly being undermined. Certain States expel or refoule refugees not only individually but, in some instances, on a large scale. Measures of expulsion or refoulement are various and include expulsion orders against refugees, forcible return of refugees to countries of origin or unsafe third countries, electrified fences to prevent entry, non-admission of stowaway asylum-seekers and push-offs of boat arrivals or interdictions on the high seas. In one case, some 9,000 boat arrivals have been towed out to sea over the last year. In another part of the world, in one case some 9,700 persons, and in another case over 31,000 persons since 1987, were forcibly returned across the land borders.
15. In addition, many States, some of whom were among the architects of the international refugee protection structures, are adopting responses to asylum-seekers attempting to enter their territories which result in denial of admission and hindering of access to procedures for determination of status. Administrative procedures or summary screening arrangements at borders not accompanied by adequate legal guarantees have, in some countries, replaced proper procedures for determination of status. Visa régimes and stricter passport requirements have proliferated, with nationals of countries from which refugees regularly come, often being specific targets of such measures. Entry and access to full procedures has as a result become very much a function of prior authorization, with discretion to allow entry on the basis of need considerably curtailed by visa enforcement mechanisms such as indiscriminate sanctioning of airlines for carrying improperly documented passengers. Here, the issue is not the legitimacy of such measures. The sovereign right of a State to control its borders is not contested. Rather the concern is the inflexibility of the measures where asylum-seekers with valid refugee claims are involved and the fact that, in individual cases, persons in need may be denied protection.
16. As a complement to such policies on admission, a number of States are increasingly adopting a narrow view of the scope of their Convention responsibilities. This is reflected in part in an interpretation of Article 1 of the Convention, containing the refugee definition, so that it is held to apply to only a very limited group of people. This restrictive approach has been particularly marked, in the attitude of those taking decisions on status or asylum, as to the meaning of the terms "persecution" and "well founded fear", neither of which is defined in the Convention. One particular problem related to the narrowing of the meaning of persecution is the often automatic denial of refugee status to persons who happen to come from a civil war situation, often on the grounds that even excessively cruel treatment is merely the inevitable by-product of generalized violence. In reality, of course, persons become refugees when they flee or remain outside a country for reasons pertinent to refugee status, whether these reasons arise in a civil war situation, in an international conflict or in peace time.
17. One result of such restrictive approaches as described above is a higher rejection rate. Rejected cases in themselves create complex problems, particularly in States where for various reasons there are difficulties in deporting groups or categories within the rejected group. In a number of countries, for example, because the necessary decisions on return are problematic or appropriate arrangements to enable return do not exist, human and material resources have to be directed to supporting persons whose status has been rejected. In addition, policies on admission and access to procedures, as well as public opinion in general, are coloured by this blurring of distinctions between refugees and rejected claimants in terms of treatment and entitlements. This in turn has worked to limit asylum options available for refugees. It is clear that failure to find a solution to non-refugee problems has serious consequences for refugees who are the responsibility of UNHCR. The pressures resulting from poverty and, potentially, from environmentally - driven migratory flows are such that the principle of first asylum is gravely threatened.
18. A final problem worth highlighting in the present context is the rigid adherence by a number of countries to the so-called "country of first asylum" principle, so that asylum applications are rejected not for reasons pertinent to the refugee definition but because it is judged that there is a third country to which that person can safely be returned. Not only is this principle not a consideration necessarily to be taken into account under the definition, it is in itself too ill-defined while concepts such as "safe country" or "transit country" lack satisfactory definition. In a related but different context, mention might also be made of recent efforts by one regional grouping of countries to draw up agreements setting out rules to determine the country responsible for examining an asylum request. While UNHCR has some concerns about the content of certain of these rules, which it has already shared with the concerned countries, it nevertheless welcomes the fact that these agreements should help to resolve the serious, humanitarian problem of orbit cases.
19. All of the above-mentioned challenges to the institution of asylum have had the combined effect in many regions of the world of making asylum less accessible. This is a major problem in itself. As important, however, is the spin-off effect on asylum policies of other countries. Unilateral measures limiting the availability of asylum in any country will inevitably have the effect of shifting the burden to other States. At the same time, such measures prejudice the willingness of these States to continue to receive refugees on their territory, even on a temporary basis. Finally, UNHCR's protection activities in these countries are complicated where the Office is required to work for adherence to standards of conduct towards asylum-seekers and refugees which are not those globally applied.
C. The financial crisis and Protection
20. If there is an asylum crisis confronting refugees at this particular time, there is also a grave financial crisis facing UNHCR that is threatening to compromise seriously the Office's ability to meet even the refugees' basic needs, including for protection. Because of this crisis, a substantial part of refugee needs cannot be covered. UNHCR is forced to identify priorities even among mandated activities, with resulting enforced reductions affecting not only the immediate welfare of refugees, but also their protection and their prospects for solutions, particularly voluntary repatriation.
21. As to the effect on protection, the degree of co-operation UNHCR enjoys with States is often linked to the material assistance it is able to channel to refugees in these States. The overwhelming majority of the world's refugee populations is in poor countries, adding another burden to the capability of governments with meagre resources to meet even the basic requirements of their own people (1»). Indeed the economic and environmental consequences of providing asylum can be of such proportions that international material assistance is vital at an early stage. In some recent instances, government officials have suggested that the continued granting of asylum might be dependent on adequate resources being made available by UNHCR for those admitted to the territory.
22. Access to refugee populations, without which there can be no effective protection, is often either directly obtained or greatly facilitated through on-going assistance programmes. Resource constraints have also limited UNHCR's ability to monitor implementation of the 1951 Convention, or to undertake desirable promotional activities. Various protection seminars and workshops have already had to be cancelled. UNHCR's participation in refugee-status determination procedures, a staff-intensive, traditional function, has been adversely affected. Finally, and perhaps ironically, financial shortfalls are hampering the capacity of the Office both to introduce new tools with longer-term cost-saving impact (e.g. legal data bases) and to become more involved in on-going international efforts to reflect on and deal with aspects of the modern refugee problem in a more comprehensive, timely and effective manner.
A. Basic premises
23. It is evident that the refugee situation has fundamentally altered in character and that this necessitates changes in the asylum policies of States. In any reassessment, however, it is important that the factors particular to the situation of the refugee do not lose their central significance.
24. From UNHCR's perspective, what is required is an overall and global approach which will develop asylum and refugee Policy so that humanitarian and human rights concerns are well integrated and properly balanced in relation to development, foreign policy and immigration control considerations. The intensified search for solutions needs to be pragmatic, imaginative and pursued without undue rigidity,. but always within the humanitarian parameters which the international community has carefully elaborated over the past four decades. Basic protection principles and international solidarity must remain the starting point.
25. Any new approach to dealing with the refugee problem will need to proceed on certain assumptions or premises which, ideally, should achieve a measure of international agreement. It is submitted that these should include, firstly, that prevention is preferable to cure. Early warning of developing situations and their mediation can be a far more effective method to contain problems as long as humanitarian considerations are fully respected and the option of departure is never foreclosed for those who require it. A second premise is that a refugee movement is a grave human rights issue, as well as a matter affecting national interests and international peace. It is as destructive of the individual as of social well-being. Another premise must be that refugees and immigrants are not one and the same. The basic principles of refugee law reflect this distinction in insisting that the fundamental rights of the refugees be fully respected and - most critically that refugees should not be expelled to situations where their lives or security are in danger. Any development of policy thinking must be fully consonant with the principles particular to and essential for the protection of the refugee. A further Premise is that neither the numbers of Persons seeking asylum or refuge nor the non-availability of immediate solutions can, by themselves, be reasons for denying protection or for according it under very harsh conditions. In addition, new thinking must not discard all traditional wisdom about appropriate solutions. Even while voluntary repatriation assumes its rightful place as, generally, the preeminent solution, there is a need to reaffirm, in the context of international burden sharing, the importance of the solutions of local settlement or resettlement. The continuing viability of all these solutions must be an additional premise. This said, however, new thinking must also proceed on the assumption that it is essential that countries of origin assume a significant responsibility in realizing appropriate solutions to today's refugee problems, including addressing root causes and facilitating return. Logic, equity and in third the current international climate towards receiving refugees countries all argue strongly for this position.
26. Certain conclusions suggest themselves if the above parameters for developing new approaches are accepted. These include the following:
i) As a basic part of new strategies, human rights institutions and organizations should be utilized more actively and effectively by States, as well as by concerned refugee organizations to seek to address the human rights concerns in refugee situations. In this regard, it needs to be kept in mind that human rights are as much the basis for treatment of non-citizens as they are of nationals. Violations of human rights are a major cause of refugee exoduses and create complex problems in countries of asylum. Restoration of acceptable human rights situations in countries of origin can be the key to successful resolution of long-standing refugee problems. Strengthened observance of civil and political rights, but equally of economic, social and cultural rights, is fundamental in dealing with root causes of refugee flows. In addition, intensified international co-operation to ensure early warning of developing humanitarian emergencies and to facilitate their timely mediation should be actively promoted. New strategies should accordingly address the strengthening of international and regional early-warning activities, including at the inter-organization level.
ii) Future Policies should also reflect new and broadly endorsed human rights positions as regards the abhorrent nature of torture and inhumane or degrading treatment. In particular, no person should be expelled or returned by a State to any country where that person might be tortured or subjected to inhuman or cruel treatment or punishment or to violations of basic rights amounting to such treatment. This would be consistent not only with much State practice, but also with a developing body of jurisprudence on interpreting treaty provisions providing protection against such practices.
iii) Development assistance agencies in national administrations, as well as international development institutions, in conceiving and implementing Policies on development aid, should, inter alia, seek thereby to promote positive human rights situations and target socioeconomic difficulties causing people to leave or hindering their return to their countries of origin. The traditional view of the refugee problem as one to be seen mainly in terms of responsibilities of receiving countries is broadening, with a new emphasis on causes, prevention and return. To address the refugee problem today humanely and effectively, as the High Commissioner for Refugees made clear in his statement to the 46th Session of the Commission on Human Rights earlier this year, any new approach by States and the international community must be based on a full appreciation of the range of factors impelling people to leave. Persecution and war or man-made disasters remain fundamental in this regard. However, there are other factors, alone or in combination, which must be addressed in an appropriate way and which include absence of minimum living standards or any meaningful economic prospects and environmental destruction.
iv) In framing their new approaches, States must respond to the legitimate concerns of all affected States. These concerns include the protracted nature of refugee problems in many developing countries with their own very troubled economies, their limited ability to provide for the substantial refugee populations they are hosting without concerted international assistance, their concerns about the waning international solidarity in sharing the burden and the political and security difficulties accompanying influxes. Legitimate concerns also include increased case loads in receiving countries, the backlog of claims, some abuse of the system, strained reception and integration facilities and significant expenses for material assistance.
v) The manner in which regional bodies or groupings might more actively contribute to positive resolution of problems in their respective regions should be explored both by these regional entities and by the international community generally. Such thinking has in fact already begun. In one recent effort to analyze the root causes of refugee problems in the particular region concerned, the regional body developed a number of positive and progressive recommendations as to how these might be redressed. Of particular note in this regard were measures suggested to promote durable solutions to the existing problems, including amnesties to facilitate voluntary repatriation and a positive approach to local integration where appropriate. There was also an emphasis on dialogue to resolve differences, on accessions to relevant international and regional refugee and human rights instruments, and on teaching of human rights throughout the education systems in the States in the region. Other suggestions might have included a role for regional human rights institutions, both in promotion and in protection of refugee rights. Such a role might include a monitoring and/or mediation function where individual situations generating refugees involve grave human rights abuses. It needs, however, to be noted that, while such efforts to respond to problems in a regional context through regional efforts are to be encouraged, this must not lead to denial of any responsibility for countries outside the region to accept a share of the burden of solutions. The refugee problem has been accepted by the international community as a global one in terms of its scope, impact and the solidarity it demands.
vi) Response strategies employing the three traditional durable solutions should include measures which would help to broaden their acceptability. Such measures might include the targeting of development aid allocations to underpin local integration or, in the country of origin, to facilitate voluntary repatriation, as well as the identification of resettlement possibilities in non-traditional resettlement countries.
vii) At the same time, new thinking on solutions should seek to develop the concept of State responsibility under international law, particularly as it relates to the responsibilities of countries of origin. The notion of solution must be understood in this context to include effective and expeditious measures to address root causes and to ensure, where appropriate, the possibility of voluntary repatriation of refugees, as well as the orderly return of non-refugees, in safety and dignity, to their countries. The international community might also explore the possibilities for providing safety and security for concerned individuals within the country of origin, always under necessary guarantees, should alternatives to flight be feasible and fully consistent with protection requirements.
viii) It needs to be realized that one factor exacerbating the refugee problem for States and UNHCR alike has been an increasingly negative public reaction to arrivals of asylum-seekers and refugees. Governments share with UNHCR a clear responsibility to lead and educate public opinion and to encourage positive attitudes by making public information activities an integral part of new strategies to address refugee problems. In addition, information strategies should aim at ensuring the wide availability of accurate information, including in countries of origin, about policies and asylum prospects in receiving countries.
ix) Open debate on possible new strategies should Precede any final decisions at the political level. In this regard, every effort should be made to raise the level of the debate by engaging eminent and broadly respected authorities from all regions of the world to bring to bear their expertise and knowledge and discuss all relevant issues in a neutral forum. Roundtables of high-level experts or the creation of "Comités de Sages" are possibilities in this regard. Their recommendations might well then pass to concerned national parliaments or intergovernmental bodies, including the United Nations General Assembly, for endorsement.
x) While the refugee issue must not be seen as one basically of migration controls, there would nevertheless be value in examining aspects of it also in the broad, international migration context, with a view to assessing the appropriateness of legal migration as an alternative channel for departures for some groups, particularly those who have no compelling reasons for their departure which are pertinent to refugee status.
xi) As a final point, any new strategies must contain measures to deal humanely and effectively with rejected asylum-seekers, in accordance with relevant immigration regulations and applicable international standards and practices. Proposed measures should be consistent with human rights requirements and without prejudice to the protection currently offered by many States to persons who do not fully meet the refugee definition, but who might, nevertheless, be exposed to serious negative consequences, for example because of an on-going situation of internal conflict, should they have to return immediately to their countries of origin. The measures proposed for rejected cases should seek to address the assistance and counselling needs of this group and should be based on a clear appreciation of the responsibilities both of States and of concerned international organizations for these people. In this connection, unorthodox solutions may be required in the medium term which, inter alia, might place demands on UNHCR, among other bodies. The High Commissioner could, if so requested by the Secretary-General or the General Assembly and, in co-operation with other appropriate agencies, assume responsibilities outside his traditional mandate, but compatible with his strictly humanitarian competence, to co-ordinate the safe and dignified return of rejected asylum-seekers. Clearly, though, such responsibilities would carry with them legal, political and financial consequences requiring an adequate response.
1) UNHCR continues to make efforts to draw attention to the devastating impact that large scale influxes can have on least developed countries. In this respect attention is drawn to the document "Refugees - A Challenge for Least Developed Countries" which UNHCR has submitted for the forthcoming 2nd United Nations Conference on Least Developed Countries, to be held in Paris from 3-14 September 1990.