Note on International Protection (submitted by the High Commissioner)

SUMMARY

A description of developments in 1986 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 (Document E/1987/56). A summary covering the first, six months of 1987 is included in the Overview of UNHCR Activities (Document A/AC.96/696).

The present Note analyses the current state of the international protection of refugees in the areas of asylum and non-refoulement procedures for the determination of refugee status as well as standards of treatment of refugees with particular emphasis on their right to security. Furthermore, the Note examines international protection of refugees in the context of voluntary repatriation. Finally, the Note addresses additional aspects of the international protection of refugees.

INTRODUCTION

1.         It is the responsibility of the United Nations High Commissioner for Refugees to provide international protection to refugees and to seek permanent solutions to their problems. The link between these dual functions, the nature of protection and the means for its promotion, were explained in the opening paragraphs of the Note on International Protection submitted to the thirty-seventh session of the Executive Committee[1]. Certain points must nevertheless be reiterated.

2.         First, international protection is self-defined, to a large extent, in the light of the specific needs of a particular group of persons in search of a solution to their plight. UNHCR's responsibilities are to those persons who fall within its mandate, either under the definitional provisions of the Statute, or by reason of the authority conferred by subsequent General Assembly Resolutions. In principle, UNHCR's concern for refugee protection covers the whole spectrum from the causes of flight to the refugee's eventual re-establishment in a stable community. The positive duties ascribed to the Office allow it little or no choice of whom to protect; at the same time, provided a sufficient connection is established with its mandated objectives, there are few restrictions on the range of rights and interests that fall within the competence of the High Commissioner.

3.         The exercise of the protection function not only involves the use of law and diplomacy, but also possesses a physical dimension, made manifest by action to reduce the dangers of flight, promote rescue, resettle the endangered, or help the victims. At times a legal principle is interposed between threatened action and the refugee; at others, it will be the very presence of a UNHCR officer. In all cases, effective protection will depend on the fullest co-operation between the Office and States, and with other inter-governmental agencies and non-governmental organizations. Information must be shared between them for success will always require the accurate identification of situations producing flight, and of groups and individuals in need.

4.         A wide variety of legal instruments is available to UNHCR in the exercise of its protection function. Some focus not only on the particular class to be protected, identified at a universal, regional or national level, but also on the general issue of standards of treatment. In this context it is encouraging to note that there has been two further accessions in the period under review to the 1951 United Nations Convention relating to the status of refugees and/or its 1967 Protocol, bringing to 103 the total number of States parties to the basic treaties.

5.         Other international human rights instruments are also of importance. It is human rights which explains the concern of the international community for the protection of refugees. Similarly, the protection of human rights of refugees constitutes an important element of UNHCR's protection function and human rights structures the solutions to refugee problems.

6.         More States have recognized the value of incorporating international standards into domestic law and, in particular, of instituting or developing procedures for the determination of refugee status. UNHCR has been regularly consulted by several countries on draft legislations and continues its active participation in the implementation of national procedures. This co-operative endeavour enables the Office to advise, from the perspective of its experience and of established principles, on the likely positive or negative consequences proposed changes. In the procedural context, it is also able to provide appropriate legal and related information, as well as to monitor developing standards, to represent the international community's interest in maintaining the principles of protection, and to encourage a consistent and humanitarian response to the situation of those in need. A number of municipal courts are taking an increasingly active role in refugee matters, recognizing the human rights dimension and the necessity for careful procedures where matters of life and liberty are at issue.

7.         Despite continuing overall adherence to established principles, there has been a disquieting tendency for States to resort to a variety of measures which not only endanger the immediate protection of refugees, but also frustrate the attainment of durable solutions; they affect asylum practices, procedures, standards of treatment, the security of refugees, and voluntary repatriation.

ASYLUM

8.         Asylum is the sum total of protection provided by a State to refugees on its territory and in the exercise of its sovereignty. There is no agreed definition of the term, nor great uniformity as to its content in practice. Asylum is often equated, however, with continuous protection in conditions which will afford the refugee the opportunity to become part of a new community. In this sense, asylum is a durable solution, either in the country of first refuge or in a third country, after resettlement. The minimum appropriate standards of asylum are reflected in the rules laid down, for example, in the 1951 Convention: non-discrimination, freedom of religion, juridical status, freedom of movement, access to the courts, to education, to employment and related rights. Fundamental rights are buttressed by limitations on the power of expulsion and by the mandatory principle of non-refoulement, while the objective of a durable solution is to be facilitated through assimilation and naturalization.

9.         States have continued to grant asylum to refugees who flee from persecution and from other threats or danger, but a substantial proportion of those in need of protection today obtain only temporary asylum and find it increasingly difficult to benefit from durable solution.

10.       In several situations, in different parts of the world, the only form of relief available is temporary accommodation in refugee reception centres, pending voluntary repatriation or third country resettlement. The establishment of long-term refugee camps and settlement and their location close to the border of the refugees' country of origin may give rise to inter-State tensions, with resulting harm to refugees. Security in camps is often wanting, and living conditions commonly create a situation of apathy and indifference among the refugees which threatens their present welfare and future prospects for reintegration. The problems are exacerbated in camps where often only limited education facilities are provided and where opportunities for even a modicum of self-sufficiency are not available. Education and employment are among the most fundamental needs of refugees, as with people generally, and the provision of limited facilities, which may be understandable in the short-term, prove to be inadequate when the refugee situation - as frequently happens - becomes protracted.

11.       Temporary solutions have, of course, their place in the overall scheme. Camps and reception centres can facilitate the provision of food or urgent medical assistance, and can often be areas of effective initial protection for those in flight. But where temporary camps, particularly closed camps, begin to acquire a degree of permanence, they give rise to other protection problems. Tension erupts, leading to a breakdown of law and order and threats to physical safety; psychological hardships and continuing dependency on international assistance frequently result in obstacles to integration, whether in the country of durable asylum or in the country of origin. International protection and the search for permanent solutions must be seen as a continuum, and efforts made to find answers outside closed camps; only thus will refugees be spared such problems.

12.       Large numbers of refugees, particularly in Africa and West Asia, have found effective asylum in villages and other rural settlements. In many such cases the eventual return of the refugees to their homes in their countries of origin is anticipated, but still remote. Governments of countries of asylum have recognized that the interests and welfare of the refugees are best served through protection of their status, accompanied by assistance and self-sufficiency programmes linked to national development schemes, and allowing refugee-host community contacts. In other countries, the absence of the necessary infrastructure of support has sometimes made the task of protection more difficult; this can result in increased, but not always appropriate, resort to the resettlement alternative.

13.       In other more developed countries, asylum is often ineluctably conditioned on success in negotiating complex administrative or judicial procedures. One of UNHCR's major objectives is the promotion of the establishment of fair and expeditious procedures for the determination of refugee status and the grant of asylum, the importance of which was recognized by the General Assembly in its 1986 resolution[2]. Some forty-nine States party to the 1951 UN Convention and/or 1967 Protocol have now established formal procedures[3], but too often the duration of the process of determining refugee status has escalated the costs in administrative and managerial terms, but especially in human terms; an uncertain status over a protracted period, together with work, education and movement restrictions, severely undermine individual dignity and well-being.

14.       Regrettably, certain negative tendencies continue. Many States have reacted to what they perceive to be an uncontrolled or uncontrollable flow of refugees, asylum-seekers and others simply searching for a better life. Throughout the period under review, the High Commissioner has urged States to refrain from adopting unilaterally restrictive measures which ignore the need for solutions. Present flows are often characterized as an aspect of the south-north phenomenon, but while movements from developing to more developed countries are evident, information available to UNHCR indicates that there is no single or exclusive pattern. What is clear, however, is that the motivations of the refugees moving onwards from one country to another are commonly the same, namely, insecurity and the seeming absence of a permanent solution.

15.       The High Commissioner has continue to encourage the process of international consultations. In pursuit of the mandated objectives of the Office, the High Commissioner's efforts have focused on both immediate protection and durable solutions, to be developed on a foundation of co-operation. UNHCR considers that unilateral restrictive measures affecting refugees such as visa requirements, airline sanctions and airport screening may address certain national concerns but, by merely moving problems sideways, contribute nothing to meeting the responsibility of the international community to find solutions to the problems of refugees. Restrictive measures have been implemented in Europe and North America, and the examples can be found repeated in Asian and African countries. This tendency is not yet universal, however. One State in Europe recently allowed some 60 "orbit" cases to enter, at UNHCR's request; another has strengthened procedural guarantees in its new process. In Asia, one State which does not generally allow the readmission of refugees who move on spontaneously, nevertheless grants 12 months residence permits to one particular group of refugees, on the basis of UNHCR's certification; extension of this practice to other groups is under consideration. Elsewhere, other States are finding that, while the announcement of restrictive measures may be relatively easy, their effective implementation depends almost as much upon international co-operation, as would a more solution-oriented approach.

16.       The High Commissioner is fully aware of those issues which give cause for concern among States: the deliberate destruction of travel or other similar documents, the operation of the filieres which trade on the misery and the hopes of others, the unpredictability of certain types of arrival, and the sheer numbers of those applying for refugee status or asylum. Refugees in need of protection will always figure among these arrivals, but at present they are the victims of a confusion of issues. There is indeed a growing tendency by some States to assimilate the problem of refugees and asylum-seekers with that of terrorism, narcotics trading or violence. There is no evidence of any link between one set of problems and the other, and it is to be regretted that a sense of insecurity among States is contributing to an erosion of minimum standards for the treatment of refugees and asylum-seekers.

17.       The High Commissioner is especially concerned about the increased likelihood of "accidental" refoulement generated by the various restrictive measures cited above. The oft-stated aim of such measures is to combat abuse by sifting out manifestly unfounded applications and so benefitting "real" refugees. Restricted access to procedures, however, generally means that no well-informed and appropriate decision is in fact taken on a claim to refugee status. The necessity for protection is ignored in preference to prompt removal to a transit or embarkation point, with the frequent automatic consequence of further administrative removals.

18.       Much of this insecurity is due not so much to the number of refugees and asylum-seekers as to the absence or non-application of appropriate rules or principles ascribing responsibility in particular situations; and to regression in international co-operation to share in solving refugee problems. It is perhaps natural that any perceived insecurity should encourage States to maximize their own self-interest. It should not be imagined, however, that even if restrictive measures are of immediate utility, long-term damage to the system of protection will be avoided. An alternative response, founded on protection principles and geared to solutions, must be developed; in this way it will be possible to reconcile the interests of States, of the international community, and of refugees.

19.       Article 14 of the Universal Declaration of Human Rights declares the right of everyone "to seek and to enjoy ..." asylum from persecution. Visa requirements, airline sanctions, detention, tighter preliminary screening and unreasonably high standards of proof relating to fear of persecution in countries of origin limit access to procedures and can all frustrate the spirit, if not the letter, of this Article, which has been reiterated in many universal and regional instruments, including Article 1 of the 1967 United Nations Declaration on Territorial Asylum. Those in need of protection are unable to obtain it, and at the same time other members of the international community are frequently called upon to bear more than a reasonable measure of responsibility for the resolution of claims. There is a growing perception among some States of a degree of selectivity in refugee recognition by others, that borders on the discriminatory.

20.       Further reason for concern is to be found in the increasing emphasis being given to the discretionary element in the grant of asylum to refugees, and to a continuing tendency in some regions to stress temporary, rather than durable asylum. In the view of the High Commissioner, both the refusal of asylum to recognized refugees and the provision of only temporary asylum to refugees must be limited to exceptional cases; the principal objective, which is a permanent solution to the plight of the refugee, must be given paramount consideration. Practices of limited protection are frequently the source and the cause of increased and unpredictable demands on other States.

NON-REFOULEMENT

21.       The peremptory character of the principle of non-refoulement remains generally recognized, and most States have continued to abide by the rule, even when faced with a variety of difficulties, including massive numbers of arrivals and fragile political relations with countries of origin. Exceptions do occur, however, and in one country over 100 cases of refoulement were reported in two separate incidents. In another country, even more cases of refoulement are believed to have taken place, notwithstanding repeated demarches by UNHCR. Such forced returns affected both those whose status within the mandate had been formally determined by UNHCR, as well as others in search of asylum and who were attempting to contact the appropriate authorities.

22.       The refoulement of certain political, or high-profile, refugees also took place. When UNHCR took up these cases, it was assured by the relevant authorities that mistakes had been made and would not be repeated. Even so, threats of such action are still common. On several occasions, the Office was required to resettle refugees urgently in order to avoid their forcible return. In such situations, the concerted practical and political support of states is essential if the fundamental principles of protection are to be preserved.

23.       The High Commissioner wishes to reiterate, in line with the general practice of States, that the principle of non-refoulement is equally applicable to asylum-seekers who are awaiting a determination of their status. This consequence flows from the declaratory nature of such determinations and the peremptory character of the principle in question. In this connection, the High Commissioner again calls the attention of States to the right of everyone to seek asylum and to that aspect of the principle of non-refoulement which enjoins States to non-rejection at the borders. This principle is reaffirmed in Article 3(1) of the 1967 United Nations Declaration on Territorial Asylum, adopted by United Nations General Assembly Resolution 2312 (XXII), Resolution (67) 14 on Asylum to Persons in Danger of Persecution adopted by the Committee of Ministers of the Council of Europe, Article II(3) of the 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa, and in Executive Committee Conclusion No. 22, adopted at the thirty-second Session.

24.       In the view of the High Commissioner, respect for the principle of non-refoulement can be most effectively ensured if substantive decisions are taken expeditiously on claims to refugee status and asylum. Recent discussions in the Council of Europe on responsibility to determine such claims have rightly focused on the primary responsibility of the first country of refuge; for every State has the duty to ensure and protect the basic human rights of all persons within its territory or jurisdiction, But, as a practical matter, if agreement is not forthcoming on arrangements for return to that country in order to complete the process, and on ways and means to share the burden otherwise borne by first asylum countries, then the responsibility inevitably devolves on whichever other State may be faced with the demand of the individual. This responsibility arises by virtue of the claim itself (to be protected and not to be refouled), and because it is the State which must initiate action to remove the individual either to his or her country of origin, or to an unsecured destination (with the possibility of successive refusals of entry, "shuttlecocking" and eventual refoulement). Substantive decisions on whether a claim to protection is justified would also be to the advantage of States and would enhance the integrity of the established system. Only after a decision as to refugee status has been taken can a State effectively ensure, in most cases, that its actions thereafter are in accord with its international obligations.

PROCEDURES FOR THE DETERMINATION OF REFUGEE STATUS

25.       In its Conclusion No. 8 (XXVIII) on the determination of refugee status adopted in 1977, the Executive Committee recommended that asylum applications always be referred by immigration or border officials to a central or higher authority; that applicants receive guidance as to the procedure to be followed and be provided with a competent interpreter if necessary; that appeal against negative decisions be allowed; that the applicant be permitted to remain pending an initial decision (unless the determining authority establishes the claim to be clearly abusive), and pending the outcome of any appeal[4]. In 1979, the Executive Committee examined the problem of refugees without an asylum country (including so-called refugees in orbit) and recommended that efforts be made to identify positively the country responsible for examining an asylum request. Asylum should not be refused solely on the ground that it could be sought in another State, and failure to fulfil formal requirements, including time limits, should not ipso facto lead to exclusion[5].

26.       In 1982 and 1983, the Executive Committee addressed the problem of manifestly unfounded or abusive applications for refugee status, i.e. those which "are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum". The Executive Committee recognized that determinations in such cases nevertheless have a substantive character and so require appropriate procedural guarantees. It consequently stressed the necessity, in all cases, for applicants to receive "a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status"; that this authority alone should determine the character of such unfounded or abusive applications; and that review be available prior to rejection at the frontier or removal. The Executive Committee recognized that review procedures could be simplified for such cases, but also that overall problems stemming from large numbers of applicants could be resolved by the allocation of sufficient resources and by reducing delay in the process[6].

27.       Procedural standards, in their detail, will necessarily reflect principles drawn from both domestic and international law. The Executive Committee has acknowledged that an oral examination, preferably before the refugee status decision-maker, is central; experience also indicates that this is a critical element in ascertaining the facts and assessing credibility. The very nature of the determination process justifies presuming credible testimony as true; a consistent body of evidence relating to conditions in the country of origin will often allow or even require inferences favourable to the applicant. In one notable case in one country, the highest court recently ruled that the notion of well-founded fear does not require a showing of a clear probability, or greater than 50 per cent likelihood of persecution. Other courts are also increasingly involved in upholding procedural standards, recognizing that serious issues of life and liberty are inherent in refugee claims.

28.       Decisions on access and admissibility, however, are now frequently left to officials other than those directly involved in the determination process, who exercise broad policy or discretionary powers. Similarly, there have been moves in several countries to eliminate or reduce review or appeal levels; this is likely to result in a loss of consistency and uniformity among determining bodies and increased chances of erroneous decisions, The Executive Committee has recognized the necessity for procedural guarantees, and that technical issues should not stand in the way of substantive decisions. The High Commissioner urges States to continue to abide by established procedural principles, in order to minimize the possibility of refoulement.

INTERNATIONAL STANDARDS FOR THE TREATMENT OF REFUGEES

29.       The protection of refugees involves the application of legal rules and of sometimes more diffuse international standards. The 1951 United Nations Convention and the 1967 Protocol offer a framework of rules, often now exceeded by States in their practice, which will assist the refugee to re-establish life in a new community. Other relevant human rights instruments provide further guidance for the provision of solutions to refugee problems. Recent experience shows that successful protection depends greatly on co-operation and solidarity, in the pursuit of solutions; it is no exaggeration to attribute some of today's most pressing protection problems, including those stemming from the phenomenon of spontaneous onward movements, to deficiencies both in the system for international co-operation and solidarity between States and in the rules of refugee law.

30.       The Office welcomes the steps taken by many States to incorporate international standards of protection into their administrative and legal systems. Measures of implementation are an essential precondition to effective application; they are a further reflection of the general obligation to ensure and protect human rights, and to provide a remedy for actual or threatened violations. The Office is available to share its experience of a wide variety of different systems, and its jurisprudential and documentary resources. This is done now through the regular activities of the Division of Refugee Law and Doctrine, including the Centre for Documentation on Refugees. The High Commissioner hopes to strengthen the capacity of the Office to assist and advise in these fields, and also to contribute to the training of decision-makers and practitioners, both in refugee law and in the principles and process of refugee status determination.

31.       General standards of treatment of refugees have been widely adhered to, and sometimes exceeded, but disquieting tendencies remain. In some situations, refugees are still targets for discrimination, either because of their status as refugees, or because of their particular racial or religious origins. Other refugees at odds with their political leadership, may find themselves subject to "disciplinary measures" beyond the rule of law, and may even be likely to become refugees twice over. Sometimes only particular national or racial or religious groups are treated as refugees, so that others are excluded from employment or from the enjoyment of Convention/Protocol benefits. Two States are currently regularizing the illegal status of non-nationals, which will benefit many thousands of hitherto unrecognized refugees.

32.       At the same time, however, restrictive measures elsewhere are leading to the creation of refugee sub-groups who are denied formal recognition, but not deported; they are left in a legal and social limbo, unable to work and denied assistance. It will be recognized that the continued exercise of such practices constitutes a serious infringement of human dignity and integrity. Both national and international systems of protection need to be respected to remedy this situation; otherwise humanitarian standards will be in jeopardy and the prospects for effective solutions diminished.

33.       The Executive Committee has acknowledged that the concern of the international community extends to the treatment of asylum-seekers, as well as to that of recognized refugees. In 1981, it formulated a set of 16 basic principles of humane standards to govern the treatment of refugees and asylum-seekers in situations of mass influx[7]. In 1986, it recommended that the detention of refugees and asylum-seekers remain an exceptional measure, to be applied only in certain limited circumstances[8]. Many States have also stressed that detention should never be resorted to for purposes of deterrence. Nevertheless, detention continues in many countries in different regions, sometimes on "security" grounds, in the ordinary immigration context, as a consequence of general police measures, or in order to put pressure on resettlement countries. One country, however, recently stepped-up the issuance of identity cards to refugees, recognizing that these can be an important protection against arbitrary detention. The High Commissioner is nevertheless concerned that emerging restrictive practices may lead, even if indirectly, to detention, "orbit cases" and a general deterioration in basic standards of treatment. States are again urged to ensure respect for the dignity and integrity of individual refugees and asylum-seekers.

SECURITY OF REFUGEES

34.       The refugee concept reflects international recognition of the need and the right of a certain class of persons to international protection. The basic minimum elements of this protection consists of the enjoyment of fundamental human rights necessary for survival in safety and dignity. This implies protection from loss of life, injury and other bodily harm, as well as from any other action which might endanger the safety and dignity of refugees. It also includes protection from threat"s of 'this nature. The right of refugees to security, as the fundamental element of this protection, is fully recognized in international law.

35.       The security of refugees has increasingly been at issue, be it during flight, in countries of refuge or in connection with return to their country of origin. It is now one of the foremost issues of refugee protection. The attention of the international community has been drawn to violations of the security of refugees in the context of refugees in distress on the high seas and those subjected to piracy attacks during their flight, military and armed attacks on refugee camps and settlements and the protection of refugee women and children. These violations of the security of refugees continued in 1986 and 1987.

36.       States and UNHCR have taken appropriate action in an attempt to ensure the security of refugees. For example, efforts to curb piracy attacks on asylum-seekers in the waters of South-East Asia were continued under an enlarged Anti-Piracy Programme established by the Royal Thai Government in co-operation with UNHCR and funded by several donor countries. The number of attacks decreased in 1986 for the third consecutive year. The percentage of boats attacked varied between 13 and 19 per cent, depending on the route taken, while the average of boats attacked in 1985 was 24 per cent. Even though the frequency of attacks decreased, the level of violence remained an area of serious concern. In 1986, 18 persons died and 143 were reported missing; in addition, 64 persons were abducted and 141 women were victims of sexual abuse and exploitation. Similar violence during the first half of 1987, although continuing on a downward trend, demonstrates a clear need to maintain the Anti-Piracy Programme with the broadest possible support from the international community.

37.       Other measures were adopted to provide for the security of refugees in flight. Again, in the waters of South-East Asia, some 2,591 refugees were rescued at sea in 1986. Some 1,249 benefited from the Rescue at Sea Resettlement Offers (RASRO) Scheme, and a further 292 persons were disembarked and resettled under the Disembarkation Resettlement Offers (DISERO) Scheme. Elsewhere, UNHCR and national authorities increased their vigilance along flight routes to ensure that refugees in search of protection were not killed or abducted. Even so, reports of deaths and disappearances of refugees continued to reach the Office.

38.       The security needs of refugee women and girls have been given special attention by UNHCR over the last several years. While generally subjected to the same threats to their security as other refugees, refugee women and girls are sometimes more vulnerable[9]. As noted above, this was the case in 1986 in connection with piracy attacks on asylum-seekers in the South China Sea during 1986. Moreover, some refugee women and girls suffered physical violence, sexual abuse and discrimination in camps and settlements. Refugee women and girls have faced similar violations of their rights and integrity, including, in a number of countries, exploitation for the purpose of prostitution. Occasionally, this seemed in part to be linked to the absence of adequate assistance programmes geared to the specific needs of the female refugee population.

39.       In its continued endeavour to improve the security of refugee women and girls, UNHCR issued internal guidelines to its staff. These guidelines emphasize the need to adopt preventive measures, to ensure that incidents are reported, to identify those committing such crimes and to ensure that they are prosecuted, as well as to assist the victims. It is hoped that this will lead not only to improved identification of situations in which refugee women and girls may be particularly vulnerable, but also to the adoption of preventive measures and the provision of assistance to victims. In addition, it will improve reporting on the subject.

40.       Refugee children were also subjected to violence. Reports from UNHCR field offices show that refugee children have been abducted and have suffered physical abuse and other exploitation. They have been subjected to forced labour, prostitution and sexual violence. A more extensive note on the particular problems encountered by refugee children is submitted by the High Commissioner to the twelfth meeting of the Sub-Committee of the Whole on International Protection[10]. In addition, and in an effort to enhance general knowledge and awareness of such problems, the UNHCR Centre for Documentation on Refugees is publishing an annotated bibliography on refugee children.

41.       In a few situations, the security of refugees is jeopardized through their forced recruitment into armed groups or guerilla bands. Invariably, the persons affected are young male refugees. As indicated above, persons seek refuge and protection so that they may survive in safety and dignity. Coercing refugees to take part, as active combatants in an armed struggle, amounts to a clear threat to their survival and their integrity. Moreover, it is equally clear that these practices undermine the concept that refugees are civilian as well as the principle that camps and settlements have a strictly civilian and humanitarian character. If left unchecked, such actions may have serious negative effects on the security of refugees and on the surrounding local population. Whenever incidents of this type are identified, UNHCR works closely with the competent national authorities in an effort to provide effective protection. Within the framework of this co-operation, UNHCR may also be called upon to strengthen its presence in the area. To be successful, however, efforts to end such violation require a genuine will on the part of all parties concerned to depoliticize the particular refugee situation.

42.       The most flagrant of all violations of the security of refugees takes place when military or otherwise armed attacks are deliberately launched on refugee camps and settlements. Such attacks continued in 1986 and 1987 in several parts of the world. As a result, large numbers of refugees lost their lives and many others suffered serious injuries. A separate note on the problem of military and armed attacks on refugee camps and settlements is submitted by the High Commissioner to the twelfth meeting of the Sub-Committee of the Whole on International Protection[11].

43.       As noted in paragraph 10 above, security problems have also arisen in certain situations where refugees are obliged to live in camps for an extended period of time. When such situations are coupled with total dependency on external assistance, absence of durable solutions and, above all, severe restrictions on movements outside the camp, problems of law and order may arise. In some instances these have led to sporadic outbreaks of violence and refugees have been killed or injured. This points to a need to review State policies on refugee camps. In particular, States should explore alternative temporary solutions in specific refugee situations.

44.       The security of refugees has been discussed in the Executive Committee on several occasions. The proliferation of violations of the security of refugees illustrates the need for closer and more serious attention to this problem as a whole by the international community. There is obviously a need for further specific measures to increase the security of refugees and the Office is participating in a number of in-depth studies on this matter which, it is honed, will lead to a better understanding of the problem and the identification of possible solutions. In many instances it is clear, however, that an effective approach will necessarily require depoliticizing refugee situations. Only by adopting a strictly humanitarian approach in providing protection and assistance to refugees can the right of refugees to security be safeguarded.

VOLUNTARY REPATRIATION

45.       Almost a quarter of a million refugees returned voluntarily to their respective countries of origin in 1986 [12] and tens of thousands more availed themselves of this durable solution in the early part of 1987. Voluntary repatriation took- place from countries on all continents and indeed from almost all countries of asylum in the world. In most countries, particularly in Europe, North America, the Middle East and Asia, limited numbers of refugees ran-in. from one or two individuals to a few hundred, returned voluntarily. In some other countries, however, considerably larger numbers returned, mainly from countries of refugee in Africa and Central America.

46.       Voluntary repatriation, whenever feasible, is the preferred solution to any refugee situation. It achieves the ultimate goal of international protection, namely the re-establishment of refugees in a community, in this case their own[13]. It is, however, also one of the most delicate solutions to implement. For this reason, and to ensure that basic standards of protection are maintained, the Office recently issued internal guidelines to UNHCR staff on action to be taken by the Office in the context of the voluntary repatriation of refugees.

47.       Recognizing that UNHCR's main preoccupation, in voluntary repatriation as elsewhere, must always be its concern for the safety and well-being of refugees, these guidelines presented seven fundamental principles' reflecting general consensus on refugee protection in the context of voluntary repatriation. These principles are:

•       refugees have a right to return voluntarily to their country of origin;

•       the repatriation of refugees must take place only at the freely-expressed wish of the refugees themselves. The voluntary and individual character of repatriation must be respected;

•       voluntary repatriation must be carried out under conditions of safety and dignity, preferably to the refugees' place of residence in their country of origin;

•       international action in favour of voluntary repatriation should receive the full support and co-operation of all States involved;

•       UNHCR should, whenever appropriate, take initiatives to promote voluntary repatriation;

•       where necessary and possible, UNHCR should establish and implement assistance programmes for returnees;

•       UNHCR has a legitimate interest in the consequences of return and should have access to returnees.

48.       The principle embodying the right of refugees to return to their country of origin is fully recognized in international law and is normally respected by countries of origin with, however, some exceptions. Moreover, there have been instances where candidates for voluntary repatriation have been harassed and efforts have been made to prevent them from returning to their country, an action which violates fundamental principles of international law. In isolated instances, such harassment has originated from within the refugee community. On other occasions, external forces have intervened in an attempt to stop voluntary repatriation for essentially political reasons. In these situations, UNHCR works closely with the authorities of all concerned countries to protect those seeking to return voluntarily.

49.       This co-operation has invariably aimed at establishing special arrangements for the protection of repatriates. Such arrangements include, for example, increased physical protection through surveillance and reinforcement of the means to ensure law and order, provision of special temporary accommodation for candidates for voluntary repatriation and a shortening of the waiting period for the actual return.

50.       Repatriation of refugees must only take place at the freely expressed wish of the refugees themselves. The international community has repeatedly reaffirmed that it is part of UNHCR's international protection function to ensure that the voluntary character of repatriation is always respected. Where individual or small groups of refugees are concerned, the voluntary nature of repatriation can normally be established without any difficulty. Candidates for repatriation are interviewed personally and asked to sign a form attesting to the voluntary nature of the repatriate's decision to return. Verifying the voluntary nature of repatriation in the case of large-scale movements may be significantly more difficult. In such situations, special arrangements are often established involving the widest possible consultations with the refugee community concerned. It frequently includes providing for independent observers to be present at assembly centres and/or crossing points.

51.       Ensuring the voluntariness of repatriation requires more than a statement from the refugees concerned that they wish to return. It calls for additional efforts to ensure that the decision to repatriate has been made on the basis of full information and freedom from constraints. Thus, UNHCR and its implementing partners must undertake every effort to provide to refugees the best information available on the situation in their country of origin, including information regarding the extent to which repatriates will be assisted and protected upon return. In some situations UNHCR has, together with the countries of origin and asylum, provided for visits by individual refugees or representatives of refugee groups to their country of origin, so as to provide them with a first-hand impression of conditions there. Arrangements have also been made to exchange information between refugees and their relatives in the country of origin.

52.       Freedom from constraint is sometimes difficult to ensure as pressure on refugees to return may take a variety of forms, some more subtle than others. Thus, it is obvious that levels of assistance in the country of refuge should not be decreased so as to induce refugees to return to their country of origin. Likewise, refugees must never have their refugee status reviewed simply because they refuse to avail themselves of the option of voluntary repatriation unless, of course, circumstances in their country of origin which led to their flight have changed in such a fundamental manner as to justify invoking the cessation clause. More subtle forms of pressure in the form of extensive and unwarranted publicity campaigns in favour of voluntary repatriation may occur, however, and must be met with firm international support for the fundamentally voluntary character of the repatriation of refugees.

53.       Finally, verification invariably calls for a close understanding of the circumstances surrounding return which may sometimes be difficult to obtain. Out of concern for the voluntary nature of repatriation, UNHCR has therefore recently strengthened its field staff who deal with voluntary repatriation in several countries of refuge.

54.       Voluntary repatriation must be carried out under conditions of safety and dignity, preferably to the refugee's place of origin or residence in their country if he or she so wishes. This core element in refugee protection is generally recognized and respected and flows from the basic international humanitarian principles of security and liberty, and from the right to freedom of movement and free choice of residence. The safety and dignity of voluntary repatriates may be difficult to ensure, however, in some situations where their return has not been preceded by a fundamental change in the circumstances which gave rise to their flight from their country of origin.

55.       Here, the question of fulfilment of any assurances which may have been provided by the country of origin to induce the return of refugees assumes particular importance. Such assurances may take the form of so-called amnesties, guarantees or other promises. They often aim at allaying the fears of refugees that they will be subjected to reprisals or other punitive measures for having sought refuge elsewhere. In addition, they may offer specific standards of treatment in the country of origin. When voluntary return is brought about as a result of such assurances and the Office assists the refugees to return, UNHCR has a legitimate interest in monitoring their fulfilment. This is part of the larger and legitimate concern of the High Commissioner for the consequences of the return of all refugees to their country. This concern derives from UNHCR's mandate to provide international protection to refugees while respecting State sovereignty. Performing this function requires direct access to returnees. Such access is normally granted in close consultation with the respective country of origin and is sometimes facilitated through the implementation of a reintegration programme. In any case, it has required a strengthening of UNHCR's presence in the country of origin concerned.

56.       Ensuring that the voluntary return of refugees takes place under conditions of safety and dignity may be problematic in instances where the return of refugees is unplanned and no provisions are made for their reception in the country of origin. UNHCR does not in any way intend to place obstacles in the way of spontaneous repatriation movements, but is putting greater emphasis on the planning of repatriation movements, including assistance in the country of origin. It goes without saying that, in many instances, the assistance provided in the country of origin should be linked to, or part of, national development programmes for that country. Special efforts are being made in this regard by the Office.

57.       In recognition of the right of refugees to return to their country of origin, UNHCR can always facilitate such return when requested by the refugees themselves. However, a further principle calls for UNHCR, whenever appropriate, to take initiatives to promote voluntary repatriation. The Office can only do so in situations where the circumstances which gave rise to the refugee movement have changed fundamentally. In other words, in order to promote voluntary repatriation, UNHCR must be satisfied that a situation exists in which refugees can return voluntarily to their country of origin in safety and dignity. Pursuant to this principle, UNHCR actively promoted several voluntary repatriation exercises during 1986 and 1987.

58.       The remaining two principles guiding UNHCR action in the context of voluntary repatriation call for international action in favour of voluntary repatriation to receive the full support and co-operation of all States involved, as well as for UNHCR to establish and implement assistance programmes for returnees where necessary. Support and co-operation to this end from the international community were generally received and, in some instances, UNHCR was able to establish and implement assistance programmes in countries of origin. Moreover, the Office assumed the role of catalyst in seeking to obtain broad international support for development projects outside the domain of UNHCR - which should benefit returning refugees and the surrounding local population.

59.       Providing integration assistance is of fundamental importance, particularly in situations where refugees have left their country for a considerable period of time. Unless properly assisted upon return, the reintegration into the country of origin may be significantly delayed or even impossible to achieve.

60.       Voluntary repatriation requires care in implementation on the part of UNHCR and the international community. Both UNHCR and countries of asylum have a legitimate interest in the consequences of return. Unless properly implemented, voluntary repatriation programmes may give rise to serious protection problems for returning refugees. It is therefore of the utmost importance that the Office can count on the full support and co-operation of the countries concerned as well as on receiving the requisite material and human resources.

61.       For voluntary repatriation to become a viable solution for more significant numbers of refugees it is a sine qua non, however, that States attend to the root causes of refugee movements. Only by removing the conditions which led to the original refugee movement can larger numbers of refugees return to their respective countries of origin in safety and dignity. This task, which is largely political, must be more vigorously addressed by States.

PROMOTING THE INTERNATIONAL PROTECTION OF REFUGEES

62.       The generally difficult situation for refugees today and the problems which face those in search of protection make accurate information all the more important. The numbers of refugees and asylum-seekers need to be known by those in charge of protecting refugees, and individuals and groups with special protection requirements must be identified. Recent inquiries by UNHCR have revealed inadequacies in the statistical methodology employed by national authorities. These result in double-counting, numerical inflation and other inconsistencies, and presents a wholly inadequate picture of the current refugee situation.

63.       Recognizing the critical importance of accurate information, UNHCR is working towards a new procedure for more detailed reporting from field offices on the actual numbers of refugees, on their constituent groups, such as women and children, and on their particular protection and assistance needs. This information will help UNHCR to fulfil its task more effectively, and details of categories and requirements will be shared with States. The success of this and related exercises, however, will depend greatly on the co-operation and participation of States, and on general agreement as to the modalities of data collection and distribution.

64.       Accurate information is as much a key to effective protection, as an awareness of the fundamental principles of refugee protection. UNHCR will therefore continue actively to promote the dissemination of refugee law and improve the techniques of protection. This involves both the development of in-house training courses, as well as the organization and conduct of seminars for government officials and decision-makers. Thus, a comprehensive training programme for. UNHCR staff has been developed and will commence before the end of 1987. Similarly, in the course of 1987, refugee law seminars have been held for the Southern Pacific countries in Papua New Guinea, for European Socialist countries in the Soviet Union and for South American countries in Argentina. A refugee law training course was held in Zimbabwe for Government officials dealing with refugees in Southern and East African countries and similar courses are planned for government officials in Central American, Asian and Arab States. Plans also include the resumption of the refugee law course organized jointly by UNHCR and the International Institute of Humanitarian Law in San Remo. In addition, several Round Tables are being organized to discuss fundamental aspects of refugee protection.

65.       Increased awareness of principles of refugee law and protection also requires easy access to literature and research results for those concerned, both inside and outside UNHCR, not just for governments and officials, but also for the broad public concerned with refugee issues, including non-governmental organizations, researchers, academics and advocates. To these ends, and in collaboration with other bodies having the requisite expertise, UNHCR's Centre for Documentation on Refugees is establishing appropriate legal databases ad well as expanding its existing bibliographic database. The initial focus of these endeavours in regard to the legal databases will be information concerning the jurisprudence and legislation relating to refugees as well as accessions of States to the 1951 United Nations Convention and 1967 Protocol. Another likely area of future activity is the publication of a journal of international refugee law, with a view to bringing protection principles and the latest developments in refugee law to the attention of a wider audience.

CONCLUSION

66.       Protecting refugees is the responsibility of UNHCR, but it can only be achieved through effective co-operation of States and relevant organizations. The variety of issues involved, though related to the particular class of refugees of concern to the international community, places the tasks of the Office firmly within the field of human rights and international humanitarian law.

67.       The High Commissioner's responsibilities under the mandate are complemented in part by the obligations accepted by States parties to the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention. The role of the Office is further strengthened by other universal and regional instruments and by international custom, but a number of grey areas remain. Humanitarian and legal standards must therefore be invoked, if necessary, to bridge the gap between the institutional responsibilities entrusted to UNHCR by the international community and, in particular, the often limited obligations formally accepted by States.

68.       These objectives, if they are to be met, require a continuous process of dialogue and concerted action. Nevertheless, UNHCR has a unique mandate, and a particular responsibility towards refugees whose fundamental human rights, such as non-refoulement, are in danger of violation. The Office is accountable to the international community and duty-bound to provide protection; its action must remain founded on the best interests of the refugee.

69.       The High Commissioner is aware that the international system must be improved. Further efforts will be made to secure more accessions to the basic refugee instruments. Close attention will also be given to the urgent need to remedy what many States perceive to be a situation of imbalance, uncertainty and insecurity. In particular, the High Commissioner will maintain the process of international consultations with a view to establishing standards for determining the respective responsibilities of States in the broad field of protection, and to improving, in a concrete sense, the system of co-operation and sharing in solutions.

70.       There is no future in continually stressing the need for generous reception policies among countries in the developing world if the required moral, material and political support is not forthcoming. No State is responsible for another's geographical situation and humanitarian policies should not be exclusively contingent on such external support. The refugee problem is international in scope and nature, and it is the international community which is responsible for providing protection and finding solutions. Unilaterally restricting access to procedures encourages onward and sideways movements of refugees and asylum-seekers, to the detriment of the principle of good neighbourliness. States' national interests and international objectives will best be served by co-operation, in ways which ensure long-term respect for the basic human rights of refugees and the integrity of the existing international system of protection and assistance.



[1] A/AC.96/680, paras. 1-11.

[2] United Nations General Assembly Resolution No. 41/124, 4 December 1986.

[3] See Note on procedures for the determination of refugee status under international instruments, 1897 (A/AC. 96/ INF.152/REV.7)

[4] Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme, Conclusion No. 8 (XXVIII) on the Determination of refugee status, pp. 16-18.

[5] Ibid., Conclusion No. 15 (XXX) on Refugees without an asylum country, pp. 31-34.

[6] Ibid., Conclusion No. 28 (XXXIII) on Follow-up on earlier conclusions of the Sub-Committee of the Whole on International Protection on the determination of refugee status, inter alia. with reference to the role of UNHCR in national refugee status determination procedures, pp. 63-64; and ibid., Conclusion No. 30 (XXXIV) on The problem of manifestly unfounded or abusive applications for refugee status or asylum, pp. 68-69.

[7] Ibid., Conclusion No. 22 (XXXII) on Protection of asylum seekers in situations of large-scale influx, pp. 48-52.

[8] Ibid., Conclusions No. 43 (XXXVIII) on Detention of refugees and asylum-seekers.

[9] Ibid., Conclusion No. 39 (XXXVI) on Refugee women and international protection, pp. 84-85.

[10] EC/SCP/46.

[11] EC/SCP/47.

[12] E/1987/56, para. 38.

[13] EC/SCP/41; and Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme, Conclusion No. 40 (XXXVI) on Voluntary repatriation, pp. 86-88.