Note on Temporary Protection in a Broader Context
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||1 January 1994|
|Cite as||UN High Commissioner for Refugees (UNHCR), Note on Temporary Protection in a Broader Context, 1 January 1994, available at: http://www.refworld.org/docid/3ae6b32514.html [accessed 16 January 2018]|
1. At the second informal meeting on temporary protection, UNHCR raised the question of the usefulness of temporary protection mechanisms outside to context of the crisis in the former Yugoslavia, in comparable situations of large-scale displacement as a result of armed conflicts and/or massive human rights abuses. At that time, a number of governments indicated that they would prefer to have more extensive experience in implementing temporary protection in the ex-Yugoslavia context before considering its applicability to other situations. One year later, as several governments have adopted or are considering legislation which could result in giving wider application to mechanisms allowing for temporary protection, UNHCR believes that an exchange of views on the subject may be of interest. The following paragraphs offer an analysis of temporary protection and propose several questions with a view to such a discussion.
2. Should there be a general "temporary protection" regime, and if so what should its components be? Five aspects of temporary protection as implemented in the context to the crisis in the former Yugoslavia could be relevant in other situations:
a. its use as a tool to meet protection needs in mass outflows;
b. the description of the basic elements of temporary protection;
c. the definition of beneficiaries on the basis of the need for international protection;
d. the focus on return as the most appropriate solution; and
e. the provision of international protection as part of a comprehensive programme of concerted international action that includes prevention and solutions.
A. Temporary protection as a tool for dealing with situations of mass outflow
3. Temporary protection has served as a method, in a situation of mass outflow, for providing refuge to specific groups or categories of persons recognized to be in need of international protection, without recourse, at least initially, to individual refugee status determination. Since it is conceived as an emergency measure of hopefully short duration, it has included respect for basic human rights but a more limited range of benefits in the initial stage than would normally be accorded to refugees granted asylum under the 1951 Convention and 1967 Protocol. Admission and temporary refuge based on such a prima facie or group determination of the need for international protection has been used frequently to deal with mass flows of refugees in other parts of the world, and was the subject of discussion in the UNHCR Executive Committee Sub-committee of the Whole on International Protection on the basis, inter alia, of the report of a Group of Experts on temporary refuge in situations of large-scale influx, which led to the adoption by the Executive Committee in 1981 of Conclusion No. 22 (XXXII) on the protection of asylum seekers in such situations. In the ex-Yugoslavia situation, the value in affording protection to those who need it without overburdening individual eligibility procedures appears to have been demonstrated.
Q. Do States consider it useful to incorporate into their national legislation and to include in regional harmonization efforts, provisions allowing, in situations of mass flows of refugees, for admission, positive group determination on the basis of objective criteria, and specific rights and benefits?
B. The basic elements of temporary protection
4. The basic elements of temporary protection were defined in the former Yugoslavia context as:
- admission to the country of refuge;
- respect for the principle of non-refoulement and basic human rights, with treatment in accordance with internationally recognized humanitarian standards such as those outlined in Conclusion 22 (XXXII) of the Executive Committee; and
- repatriation when conditions in the country of origin so allow.
Q. Do States agree that these principles can generally be applied, within a broader framework of concerted international action, in other situations involving large-scale flows of refugees?
C. The definition of beneficiaries on the basis of the needs for international protection
5. In providing temporary protection to persons fleeing the conflict and human rights abuses in the former Yugoslavia, States have acted on the basis of a broad consensus on the need for international protection, without in the first instance addressing the issue of whether those concerned were or were not refugees as defined in the 1951 Convention. Beneficiaries of temporary protection have included both persons who clearly qualify as refugees under the convention and others who may not. The need to provide international protection to persons fleeing armed conflict and civil strife, whether or not they come within the terms of the 1951 Convention definition, is generally accepted in practice by States as a humanitarian responsibility. In various regions it is the subject of explicit or implicit treaty obligations. In the legislation or practice of many States, an objective need for international protection because of war or other events in the country of origin which endanger life or personal security provides grounds for granting some form of humanitarian status to an asylum seeker who is not recognized under the 1951 convention and the 1967 Protocol. The temporary protection arrangements adopted in response to the crisis in the former Yugoslavia have amounted to a harmonization - or at least a concertation - in one specific situation of this policy and practice of States. Several countries have adopted or are considering legislation that would authorize the use of such mechanisms on behalf of persons in need of international protection in other situations.
Q. Could criteria such as those employed in connection with ex-Yugoslavia conflict to meet the need for international protection of people fleeing armed conflict as well as human rights abuses be adopted by States to ensure protection for people in similar circumstances?
Q. Would it be feasible or desirable to harmonize at the regional or international level the policies and criteria adopted by States to ensure that people in need of international protection receive it?
D. Focus on return as the most appropriate solution
6. One of the major reasons for applying the term "temporary" to the protection given to persons fleeing the former Yugoslavia has been the expectation - or at least the hope - that international efforts to resolve the crisis would, within a fairly short period, produce result that would enable the refugees to exercise their right to return home in safety. This focus on return as the most likely and appropriate solution to a particular refugee situation also provides the rationale for standards of treatment which emphasize the provisional aspect of the refugees' stay in the country of asylum, and minimize, at least in the initial stages, efforts to promote integration, which have traditionally been central to refugee reception policies in the countries concerned. As the former Yugoslavia experience shows, hopes for an early safe return may not always be realized, and at a certain point the refugees' need for stability and greater certainty may necessitate a change in approach. Up to that point, however, temporary protection arrangements offer a means of providing protection to those who need it while continuing to emphasize repatriation as the preferred solution. As in the former Yugoslavia situation, the focus on return must include practical arrangements for repatriation, reintegration and rehabilitation in the country of origin when and if conditions permit.
Q. What are the implications for reception and treatment in countries of asylum of the focus on return as a solution? How can the focus on return be reconciled with the refugees' need over time for stability and certainty?
Q. What mechanisms or arrangements should be envisaged to determine when return is feasible and to facilitate return in safety and dignity?
E. Temporary protection as an element of a comprehensive approach
7. Temporary protection in the context of the crisis in the former Yugoslavia was conceived as on component in a comprehensive approach on the part of the international community, involving concerted efforts to achieve a solution to the conflict and to enable those who had fled to return home in safety and dignity. It was also viewed as an element of burden sharing, along with assistance to the countries in the immediately affected region and efforts to meet specific humanitarian needs and to receive vulnerable persons in countries of resettlement. The notion of temporary protection would make little sense if it were divorced from efforts to address the causes and to attain solutions to the refugee problem. In this respect temporary protection represents one of the variable approaches to asylum that the High Commissioner has adopted as part of comprehensive approaches in other regions. While each such plan must be different, given the uniqueness of each situation, the notion that asylum may be granted initially on a temporary basis, while efforts to achieve a solution are pursued, has been a common feature. Temporary protection in the former Yugoslavia situation is an important example of the effort to combine asylum as an instrument of protection with an ongoing search for solutions within such a comprehensive plan.