Note on International Protection (submitted by the High Commissioner)

A/AC.96/643

Introduction

1. In endeavouring to make an overall evaluation of current developments in the field of international protection, there cannot be any doubt that many trends must be seen as positive. It is therefore necessary to pay tribute to the numerous States which, by their example and action, have facilitated the High Commissioner's work in this field. This relates in particular to the strengthening of the legal framework which provides the oasis for international action in favour of refugees. In recent years, a growing number of States have become parties to the 1951 United Nations Convention relating to the Status of Refugees and/or the 1967 Protocol. Many States have adopted legislation with a view to implementing the various provisions contained in the international refugee instruments and in a not insignificant number of countries special procedures or arrangements now exist for determining refugee status. In addition, vast numbers of refugees throughout the world have been able to find asylum, the majority of them in some of the world's poorest countries. Seen collectively, these are significant achievements on the part of the international community which should be strongly acclaimed.

2. Nevertheless, as stated in the High Commissioner's report to the General Assembly (A/39/12), his international protection function has become very difficult in certain areas. Problems in particular continue to arise with regard to the admission of refugees and to the standards of treatment accorded them. There has also been a perceptible tendency on the part of States to view asylum and the refugee concept in a restrictive manner. To these trends must be added the practice of certain States to resort to measures of "deterrence" including the unjustified detention of refugees, sometimes under harsh conditions. In addition there is the intractable problem of violations of the physical safety of refugees through armed attacks on refugee camps and settlements, forced conscription, piracy attacks and the failure of passing ships to rescue asylum-seekers in distress on the high seas.

3. There are several explanations for this seemingly paradoxical situation, in particular the complex nature of the broader reality in which refugee problems now arise. The attitude of States towards asylum may be tempered by what is perceived to De the changing circumstances leading to refugee influxes. The majority of the world's refugees are now persons fleeing armed conflict or other political or social upheavals in their home country. In the view of receiving States these circumstances may be temporary, thus justifying a more restrictive approach to the notion of asylum. Movements of asylum-seekers nave also been caught up with transfrontier - and transcontinental - flows of persons moving from less developed areas of the world in search of economic betterment. Xenophobic trends nave become more apparent and in certain countries they have a noticeable impact on the shaping of government policies. Backlogs in asylum procedures - although now reduced in a number of countries - have adversely affected the image of the refugee by creating the impression that the refugee problem is an apparently endless and insurmountable one.

4. This complex reality highlights the need for the refugee problem to be examined in the context of more general issues which require solutions on a wider and perhaps on a global basis. Such a comprehensive approach should include efforts to obtain a better understanding of the root causes, to improve existing mechanisms for providing assistance, and to pay closer attention to finding lasting. solutions to refugee situations, having particular regard to that of voluntary repatriation. While efforts to identify and remove the conditions giving rise to refugee flows are political in nature - and are therefore outside the competence of the High commissioner - they are a vital element in this wider approach to current refugee problems. Their outcome is moreover of direct concern to UNHCR since their failure would in time seriously impede the High Commissioner's ability to discharge his international protection function in an effective manner.

5. In the final analysis, the various problems arising in the field of international protection can only be properly addressed if the principle of international solidarity is applied effectively and in a comprehensive manner. The notion of international solidarity encompasses a broad range of action on the part of States, including endeavours at the political and financial levels, the provision of durable solutions and the example set by them at the national level. its practical application also presupposes that mechanisms for consultation among States and between States and UNHCR are used to their fullest possible extent. Such consultation is indeed a vital element in the framework of co-operation between States which, as often emphasized by the High Commissioner, is the mainspring of international action in favour of refugees.

6. In addition, it must be recognized that the ability of States to respond positively to refugee situations and, more particularly, to the problems arising in the field of international protection depends very largely on a favourable climate of public opinion. There has been increasing evidence in recent years of confusion in the public mind between the very special situation of refugees and that of the many millions of other aliens who are endeavouring to gain entry into countries other than their own. This confusion has been to the detriment of refugees and has tended to impede a sympathetic approach to refugees at the official level. There is a need to give urgent attention to promoting a renewed understanding in public opinion of the special situation of the refugee. Sustained efforts in this direction must be undertaken by all concerned, including Governments, non-governmental organizations, the media and UNHCR.

7. In pursuance of the High Commissioner's task of identifying particular problems which stand out as calling for solutions, the present Note endeavours to give a comprehensive account of the principal issues which are presently Confronting refugees in the context of international protection. The note also seeks to give a brief evaluation of the nature of the various problems as they are perceived by the Office and to provide an indication of what is believed to be the proper approach.

Asylum

8. Monitoring the practice of States with regard to asylum continues to occupy an importance place in the office's work in the field of international protection. Since the Executive Committee's thirty-fourth session, countries in virtually all parts of the world have opened their doors to persons seeking asylum. A number of countries are accommodating many hundreds of thousands of refugees within their borders and in certain States the refugee population is in excess of one million. That some of these States are amongst the world's poorest is a tribute to their generosity and the example set by them in admitting large numbers of refugees is of inestimable value in strengthening the institution of asylum.

9. While the overall situation with regard to asylum therefore gives cause for some optimism, there are a number of problems which continue to arise and which are of a sufficiently serious nature to warrant attention.

10. Since the Executive Committee's thirty-fourth session there has been a resurgence of cases in which asylum has been refused for fear of compromising relations between countries of asylum and countries of origin. Cases of this kind give rise to concern in view of the fundamental tenet that the grant of asylum is purely peaceful and humanitarian and should not be regarded as an unfriendly act by any State. Some States have even established as a matter of policy that persons seeking asylum from neighbouring countries should be prevented by forced entering their territory and that nationals caught helping these refugees to enter the country should by law be subject to prosecution. States have also felt it necessary to withdraw asylum from refugees already admitted into their territory because their presence is considered to be a threat to national security. It is of course incontrovertible - as is clearly spelled out in article 2 of the 1951 United Nations Refugee Convention - that refugees should respect the laws and regulations of their host country and refrain from activities which are inconsistent with their refugee status. Nevertheless, given the serious consequences for refugees of a withdrawal of asylum and the limited range of alternative solutions available, the question whether refugees are to be considered as endangering security should be approached by States with special care. It is also important that other States snow understanding for the efforts of the Office to find alternative solutions - often on an emergency basis - for refugees who need to be moved elsewhere.

11. Another phenomenon of increasing dimensions is that of refugees who move from their present country of asylum to more distant countries - sometimes by irregular means - because of unsatisfactory living conditions and/or the seeming impossibility of finding a durable solution in the foreseeable future. These refugees are often not admitted by the second country since they are considered to have asylum in the country from which they have come and to which they should return. These countries of first asylum are, however, generally unwilling to readmit them on the ground that their presence there was regarded as purely temporary or because the irregular nature of their departure is considered to nave relieved the authorities of any further responsibility for them.

12. The solution for such cases is undoubtedly to be found in the application of the principle of international solidarity and burden-sharing. The cases which have so far arisen, however, illustrate the difficulties which may arise in applying this principle in concrete situations. Thus the countries to which these refugees move evince a certain expectation that their situation should be resolved in a regional context, while States bordering on countries of origin ask why they should be expected to bear the full share of the burden. Although these different and conflicting approaches are understandable, they frequently make it difficult to find a ready solution for cases which give rise to considerable human suffering and are also a potential source of friction between Governments. In order to find appropriate solutions it would be desirable to establish mechanisms of consultation between countries of second and first asylum and between these countries and UNHCR. 'More effective measures might also be taken to avoid such cases, e.g. the strengthening of departure mechanisms for resettlement in third countries or providing more effective assistance for local integration. With regard to these various problems, mention should also be made by analogy of the recommendation adopted by the Executive Committee at its thirtieth session that States should give favourable consideration to accepting, at the request of the office of the United Nations High Commissioner for Refugees, a limited number of refugees who cannot find asylum in any country.¹

13. The issues described in the preceding paragraphs are one aspect of the wider question of refugees without an asylum country which was examined by the Executive Committee at its thirtieth session. At that session the Committee also drew attention to the phenomenon of refugees who leave a country where they have already found refuge because they fear that their basic rights and even their physical safety are endangered there. The Committee recommended that, where compelling reasons of this nature are invoked, the authorities of the second country should give favourable consideration to the refugee's asylum request. Cases of this kind continue to arise and illustrate the need for the grounds put forward by refugees for leaving their present country of asylum to be carefully considered in order to establish whether they are valid and whether or not a grant of "second asylum" may be justified.

14. The office has observed in recent years an increasing tendency on the part of States to view asylum as being temporary in nature and to pursue more restrictive policies with regard to the granting of durable solutions within their own boundaries. This trend may be due to a number of reasons, including the perceived security of the receiving State, relations with the country of origin, economic factors and the nature of the circumstances which lead to the exodus of the refugees. There is nevertheless a danger that the practice of granting asylum on a purely temporary oasis may become generalized. It is therefore hoped that States will only resort to the grant of temporary asylum where the provision of asylum on a durable basis is excluded for overriding reasons.

Non-refoulement

15. The observance by States of the principle of non-refoulement is of course fundamental to the entire structure of international action in favour of refugees. It is therefore encouraging to note that the practice of States indicates a firm commitment to this basic principle. This commitment is for example reflected in the growing number of States which have become parties to the 1951 United Nations Refugee Convention and/or the 1967 Protocol which incorporate the principle of non-refoulement as a cornerstone provision. The repeated reaffirmation by States of the fundamental character of this principle and the need for its scrupulous observance has served to enhance its stature which, as recognized by the Executive Committee at its thirty-third session, is progressively acquiring the character of a peremptory norm of international law.

16. Despite these encouraging indications of the commitment by States to the principle of non-refoulement, there have been a number of instances since the Executive Committee's thirty-fourth session in which this principle has been disregarded. In several of these cases measures of refoulement have been taken in the context of more general agreements between countries of asylum and origin aimed at normalizing bilateral relations. While recognizing the value of such policies, it is of course essential that the non-negotiable principle of non-refoulement be in no way compromised and that regard should also be had to the further principle - which is no less fundamental - that the granting of asylum is a purely peaceful, humanitarian and non-political act.

17. The observance of the principle of non-refoulement is closely related to the determination of refugee status. It is evident that the existence of procedures or arrangements for identifying refugees provides an indispensable guarantee against errors by ensuring that persons who are entitled to the protection of the principle of non-refoulement do in fact receive it. Such procedures or arrangements are particularly necessary when the influx of asylum-seekers is combined with migratory movements and the risk that the principle of non-refoulement may be disregarded is correspondingly greater.

18. The corollary to the principle of non-refoulement is that the repatriation of refugees must be voluntary. Forced return movements of refugees constitute a violation of the principle of non-refoulement and it is for this reason that the need for respecting the essentially voluntary character of repatriation has always been underlined. The involvement of UNHCR in a number of repatriation operations during the last few years has made it possible for an internationally qualified 'organ to confirm the voluntary character of repatriation and, by the same token, that the principle of non-refoulement has been fully respected. on several occasions, however, UNHCR was not given the opportunity of performing this role. In some instances, the office was informed that UNHCR's involvement was not considered necessary because the safety of the returnees was the subject of a bilateral agreement between the country of asylum and the country of origin. In one instance which occurred since the Executive Committee's thirty-fourth session, refugees were returned to their country of origin even though UNHCR had established that many did not in fact wish to repatriate.

Physical safety of refugees and asylum-seekers

19. Violations of the physical safety of refugees and asylum-seekers particularly those inflicted in the course of flight - continue to stand out as one of the most intractable international protection problems. In recent years the High Commissioner has repeatedly drawn attention to the suffering to which refugees and asylum-seekers are frequently subjected, more especially as a result of the grave problem of armed attacks on refugee camps and settlements, piracy attacks on asylum-seekers at sea, and the failure of passing ships to come to the rescue of asylum-seekers in distress on the high seas. In each of these three areas efforts have indeed been made by the international community to identify remedial action, but fundamental solutions have so far been elusive. The issue of the physical safety of refugees continues to call for urgent action on the part of States, including a strong appeal to public opinion which may not be fully aware of the true dimensions of the suffering inflicted upon refugees and asylum-seekers.

20. At its thirty-third and thirty-fourth sessions the Executive Committee examined various aspects of the problem of armed attacks on refugee camps and settlements. Since the Executive Committee's thirty-fourth session, refugee camps and settlements have again been the object of military attacks across borders, illustrating the need for urgent international attention to address the causes of such attacks, to identify ways in which they can be avoided and to ensure that the victims of such attacks are provided with the necessary assistance.

21. Another aspect of the problem of the physical safety of refugees is their forced conscription in different areas of the world into armed groups in their host country. Such incidents have occurred in camps where the conditions under which refugees are confined render them an easy target for various forms of exploitation.

22. The phenomena of armed attacks, forced conscription and other forms of exploitation highlight the importance of a UNHCR presence in refugee camps and the need for an effective role to De given to the office to supervise the well-being and physical protection of refugees accommodated there. Experience has indeed shown that a UNHCR presence has a positive effect in reducing the incidence of abuses against refugees. Such a presence should moreover be facilitated by States in view of their responsibility to co-operate with the High Commissioner in the exercise of his international protection function. While this role is broadly recognized, it requires reaffirmation due to a number of recent incidents in which access by UNHCR to refugees and asylum-seekers has been denied.

23. The problem of pirate attacks on asylum-seekers at sea continues to exist despite efforts by the States most affected and other interested Governments to eradicate these atrocities. Since the inception of the UNHCR-Royal Thai Government Anti-Piracy Agreement, some significant reduction in the number of acts of piracy may De recorded. More recently, however, there has been a marked increase in the level of brutality associated with such attacks particularly as regards assaults against and abduction of women. Having considered a report by an expert assessment team, the Thai authorities have recently extended the Anti-Piracy Agreement for a further 12 months, thus demonstrating their determination to improve the effectiveness of their action against piracy. It should, however, be stressed that this programme, which is financed by a small number of countries, is limited in scope and that the responsibility of policing the high seas - as required by long-standing maritime tradition and reflected in modern conventions relating to the law of the sea - rests with the international community as a whole. Regrettably little has been done to take tangible measures to implement this collective responsibility despite the efforts of the Secretary-General of the United Nations, the President of the International Committee of the Red Cross and the High Commissioner.

24. Of equal concern is the related question of the rescue of asylum-seekers in distress at sea. In 1980, 21 per cent of all asylum-seekers arriving in countries of first asylum were rescued by passing ships at sea. During the first half of 1984, this proportion dropped to 5.3 per cent. These figures lead to the alarming conclusion that fewer ships which encounter asylum-seekers on the nigh seas may be coming to their rescue with the corresponding danger that numbers of refugees are at risk of losing their lives at sea. The Executive Committee for its part has reaffirmed the fundamental nature of the obligation of shipmasters to rescue asylum-seekers n distress at sea. It has also welcomed the initiatives undertaken by UNHCR to facilitate the observance of this obligation through, inter alia, removing as far as possible the difficulties confronting shipmasters in disembarking refugees after rescue and meeting some of the financial costs incurred by shipowners in rescuing refugees at sea. At its thirty-fourth session the Executive Committee discussed a new arrangement entitled "Rescue at Sea Resettlement Offers" (RASRO), aimed at facilitating the disembarkation of rescued asylum-seekers through the provision of guarantees available from an international pool of resettlement offers and commended the scheme to States for their support so that it might begin on a trial basis. At the time of writing, 11 States had pledged their support for the scheme which now requires the participation of only two or three further countries for it to be initiated on an experimental basis. The High Commissioner hopes that the support of these States will be forthcoming before the Executive Committee's thirty-fifth session.

Detention of refugees and asylum-seekers

25. In different parts of the world large numbers of refugees and asylum-seekers are being subjected to various forms of detention. As it affects refugees and asylum-seekers, the issue of detention is undoubtedly complex and may be addressed on two main levels, viz. whether detention is justified and whether the treatment of detained refugees is in accordance with acceptable minimum standards.

26. It is recognized that not every restriction on the freedom of movement of refugees can be assimilated to detention and that in situations of large-scale influx the problem of detention presents different aspects to those arising in the case of individual refugees. With respect to the latter, many countries follow the practice of detaining individual refugees until their refugee status is established or until they can proceed to another country; a limited initial period of deprivation of liberty is frequently considered necessary in order to establish the identity of the asylum-seeker and the basis of his or her claim to refugee status. Prolonged detention should, however, only be resorted to if this is clearly justified, e.g. where there are reasonable grounds for suspecting criminal conduct or a likelihood of absconding. It is, however, becoming increasingly evident that refugees are frequently being detained almost as a matter of course for unduly long periods of time sometimes in prison or in prison-like conditions and without any legal remedy or even access to UNHCR - the rationale for such measures being that their presence is considered unlawful on account of their irregular method of arrival or entry.

27. It is recalled that article 31 of the 1951 United Nations Refugee Convention exempts refugees coming directly from a country of persecution from punishment on account of their illegal entry or presence provided they present themselves without delay to the authorities and snow good cause for their illegal entry or presence. The article also provides that Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and that any restrictions shall only be applied until their status is regularized or they obtain admission into another country.² While it follows from this article that detention should only be resorted to in cases of necessity, there is a tendency on the part of a number of States to apply this notion of "necessity" in an unduly broad manner with the consequence that refugees are almost automatically detained.

28. In large-scale influx situations, it is recognized that the attendant problems are both qualitatively and quantitatively different since considerations of national security, internal order, public health, the safety and well-being of the refugees themselves and of the national community may justify at least some limitation on freedom of movement. Even in circumstances of this kind, however, it is important that such limitations should not be unduly prolonged and that after a certain period of time, even if the desired solution is not forthcoming, the possibility of relaxing restrictions on the freedom of movement of refugees should be favourably considered.

29. While it will thus De seen that there may De situations, both with regard to individual asylum-seekers and to large-scale influx, in which measures of detention may be justified, this is not the case where asylum-seekers are detained with the sole object of discouraging further arrivals. It has become evident that in certain countries the practice of detaining asylum-seekers is part of a clearly perceptible policy of discouraging the arrival of further asylum-seekers. In these countries refugees are frequently confined in prison or detained under prison-like conditions for prolonged periods of time in accordance with a policy of so-called "humane deterrence". Needless to say practices of this kind - given their underlying motivation - are at variance with the principles of international protection.

30. As regards the conditions of detention of individual asylum-seekers, the practice of States varies. It should, however, be recognized that asylum-seekers in detention should be treated according to certain minimum standards, including the due process of law and the possibility of access to legal advice and/or to UNHCR. In large-scale influx situations where asylum-seekers are confined to camps or closed centres, the basic minimum standards should be those defined by the Executive Committee at its thirty-second session.³ In many countries, however, conditions of detention fall considerably below these minimum standards.

The refugee definition and the application of the refugee concept

31. As is known, the High Commissioner's competence in the field of international protection extends to persons covered by the refugee definition in the Statute⁴ and also to those persons covered by the broader Mandate - entrusted to his office by subsequent General Assembly resolutions. The latter resolutions call upon the High commissioner to provide protection and assistance to all persons who have been forced to seek refuge outside their country of origin because of armed conflict or other political or social upheavals. While there is general recognition that persons falling with these broader categories qualify for UNHCR protection and assistance in those areas where they find themselves, problems have arisen when they Move on an individual basis to other regions where due to the application of the narrower definition they are not regarded as refugees. The difficulty which has arisen for persons in this situation is that of defining their legal status which should at least include protection against refoulement and permission to remain in the territory until an appropriate solution is found for them. It should be added that this difficulty does not arise in Africa where, as a result of the extended definition of the term "refugee" contained in the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa, the High Commissioner's authority to act on behalf of broader categories of refugees is complemented by a binding legal instrument⁵. In other regions of the world, however, there is a growing need for this particular problem to be addressed.

32. As regards the determination of refugee status, it would appear that States now generally recognize the importance of adopting appropriate procedures or arrangements. In the experience of the Office there is a direct relation between the non-existence of procedures for identifying refugees and the disregard of the principles of international protection. In recent years there has indeed been a noticeable increase in the number of States which have established procedures for determining refugee status.

33. The existence of such procedures is not of course in itself sufficient to guarantee a fair and judicious examination of an application for refugee status. The process of the determination of refugee status also presupposes that the refugee criteria will be applied in an even-handed way and that all applicants, irrespective of their country of origin, will receive a fair and sympathetic hearing. From available figures relating to rates of recognition it would, however, appear that in certain countries the refugee criteria are being applied less generously to applicants coming from certain countries or areas of the world than from others. While it is difficult to draw any definitive conclusions from these seeming disparities, it cannot be excluded that they may reflect an unduly restrictive application of the refugee definition by some countries in respect of certain groups.

The international refugee instruments

34. The number of States parties to the 1951 United Nations Refugee Convention and 1967 Protocol has in recent years been steadily increasing and there are now 96 States which have ratified or acceded to one or both of these major international refugee instruments. These instruments constitute an indispensable element for the full and effective exercise of the High Commissioner's international protection function and it is therefore desirable that States which are confronted with large-scale refugee problems be parties to them. Accession to these instruments is also important as an expression of international solidarity with regard to refugee problems and also makes it easier to secure the more effective application of the principle of burden-sharing on behalf of States receiving large numbers of refugees. It is therefore a matter of regret that in certain areas of the world where major refugee problems exist only very few States are parties to the 1951 Convention and/or the 1967 Protocol. Although a number of States in these areas have made serious efforts to ensure that refugees are treated according to basic minimum standards, the large numbers of refugees in these States are nevertheless without the legal basis for the protection provided by the international refugee instruments.

35. It is also a matter of concern that, of the 96 States parties to the international refugee instruments, in three States⁶ the obligations undertaken are considerably limited in scope due to the fact that the country concerned is party only to the 1951 Convention and not also to the 1967 Protocol with the result that they apply only to persons who became refugees as a result of events occurring before 1 January 1951. Moreover, eight States⁷ also maintain a geographical limitation in respect of their obligations under these instruments because on acceding to the Convention these States opted for the narrower application clause thus restricting their obligations under the Convention to persons who became refugees as a result of events occurring before 1 January 1951 in Europe, a limitation which also applies in respect of their obligations under the 1967 Protocol. The geographical limitation introduced on accession to the Convention and the Protocol by various other States has progressively been withdrawn and it is to be hoped that those States which continue to limit their obligations under the international refugee instruments - in either the temporal or geographical sense - will give serious consideration to removing this evident anomaly.

Conclusion

36. The description given in the preceding paragraphs of the various problems arising in the context of international protection indicates the need for an urgent response by Governments. This response, depending on the particular problem to be resolved, may involve action by individual States or concerted endeavours by the international community. In approaching these various problems three salient ideas emerge.

37. Firstly, there is a need to create the necessary conditions in which the High Commissioner may effectively discharge the international protection function which has been established and entrusted to him by States. This calls for a comprehensive and positive approach by all concerned to current refugee situations, involving attention to their root causes, the improvement of relief mechanisms and the provision of appropriate solutions.

38. Secondly, it is becoming increasingly evident in all areas of the world where refugee problems exist that a UNHCR presence is often the most effective and sometimes the only means of ensuring observance of the principles of international protection. In order to be able to maintain such a presence the office must be able to count on the effective support of States in providing adequate personnel resources.

39. Finally, efforts must be made by all concerned, including UNHCR, to promote a favourable climate of public opinion which is a vital precondition for positive action in the field of international protection.

1 A/34/12/Add.1, para 72 (2)(1).

2 A recent survey undertaken by UNHCR of the practice of some 30 States parties to the 1951 Convention and 1967 Protocol indicates that only a very small number of States have incorporated this provision into their domestic legislation.

3 A/36/12/Add.1, paragraph 57(2).

4 i.e. persons who are outside their country of nationality or former habitual residence owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion.

5 According to Article (1)(2) of the 1969 OAU Refugee Convention the term "refugee" also applies to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality."

6 Madagascar, Monaco, Mozambique

7 Argentina, Brazil, Italy, Madagascar, Malta, Monaco, Paraguay and Turkey.