ISIL Year Book of International Humanitarian and Refugee Law
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Chairman, Your Excellencies, Ladies and Gentlemen,
The murder of UNHCR colleagues in West Timor and in Guinea overshadows this Executive Committee session, albeit the news of the release of our abducted colleague is a heartening one. Amongst the many questions now facing the Organisation in the aftermath is how to weigh the contribution humanitarian workers may be able to make to the protection and well being of refugees against their own precariousness in seriously disturbed situations. Effective protection depends on our ability and that of partners to have full and safe access to those whom we are mandated to protect. The vulnerability of humanitarian workers may well be the factor which determines the limits to protection in the increasingly complex environment in which UNHCR works. This is not an issue for my presentation to dwell on, but it is certainly one which demands careful and rigorous reflection by all of us.
I want in the short time available to do three things. Firstly I want to take stock of protection trends and what they suggest about the commitment of States to implementing protection standards, as well as the difficulties they have in this regard. Secondly, I would like to examine the degree of commonality of problems and responses at the global level with a view, thirdly, to briefing you in greater detail on the Global Protection Consultations we will undertake over the period leading up to next year’s 50th anniversary of the 1951 Convention relating to the Status of Refugees.
In so doing, Mr. Chairman, I will be presenting a perspective on protection which takes a different slant from that we have presented over recent times. UNHCR has, normally, two main opportunities over the year to invite this Committee to consider the state of international protection. The first is the mid-year protection Standing Committee session, and the second is the plenary session of the Executive Committee in October. In UNHCR’s annual Note on International Protection, available to delegations as Document A/AC.96/930 and presented to the July Standing Committee Session, we invited you to look at international protection from the perspective of how it is operationalised in the field. The Note provides quite a comprehensive overview of both field and Headquarters based activities. It helps to answer the question what is protection and how is it done. The approach in this Note complements the perspective presented to this Committee last year on the major protection challenges globally. These were and remain fourfold – to redress the deteriorating quality of asylum; to give new impetus to efforts to revitalise a too often criticised, disregarded or abused protection framework; to strengthen partnerships so as to bolster our own capacity to ensure protection to persons of our concern; and to find solutions to refugee problems with protection an overarching consideration.
Today I want to approach the protection function from yet another topic. I do so not least because it is out of this appreciation of the problems and challenges we collectively face that the proposal of UNHCR to launch global consultations on protection came. Rather than look at issues region by region, I want now to examine the problems challenging the delivery of protection which cut across regions, that is those experienced in different regions with a surprising degree of commonality.
The first such major problem is how to ensure protection to refugees in mass influx situations. Mass flight is a feature of the refugee problem on every continent. Effective protection is rendered exceedingly difficult where the exodus results from conflict which remains unresolved, where parties to the conflict lack authority or legitimacy, and where there is no sense of accountability as regards compliance with basic human rights or humanitarian norms of behaviour. In some situations, the conflicts have spilled across frontiers and affected areas where refugees, returnees and displaced persons are living, seriously threatening their safety and, as we have recently dramatically witnessed, that of the local population. Concerns about national security and the safety of the local population have led to the closure of borders to new arrivals, to denial of asylum and to detention of refugees. Funding shortfalls have also aggravated protection problems in some situations, given the close link between the provision of assistance and protection, as well as the limited capacity and resources of many refugee-hosting countries. Refugee women, children and the elderly are at most risk, often the first casualties.
In a number of traditionally hospitable asylum countries, the political, security and economic impact of protracted refugee situations has sorely tested the hospitality of the local population, provoking hostility, violence, physical attack and rape of refugees. It is a sad fact also that, in many cases, racist and xenophobic attacks against refugees are being politically instigated, and refugees are being made the scapegoat for other inadequacies, even electoral purposes.
Asylum fatigue in protracted refugee situations, coupled with failing international support, has had a negative impact on the pursuit of solutions, precipitating repatriation in less than ideal conditions, and rendering any degree of local integration illusionary. In mass influx situations, where do the responsibilities lie for meeting protection needs, with what guarantees for physical security, over what length of time, under what conditions and how should such responsibilities be apportioned more equitably? These questions need to be put on the table for international reflection. They are questions which beset our operations in Africa, in South and South East Asia, in Central Europe, the Caucasus and in the Middle East. In short, they are widely shared.
The second common problem I would like to highlight is the protection challenge confronting not mass influxes, but refugees arriving as individuals. Most countries on all continents are called upon in one manner or another to respond to the needs of the individual refugee. Increasingly they share a concern about over-burdening of the structures they may have in place to handle claims, about rising costs of various types associated with running the system, about problems stemming from difficulties in applying refugee concepts to mixed groups of arrivals and a significant misuse of the systems in several parts of the world. The inability to return rejected asylum-seekers is, from their perspective, a seriously complicating factor.
One result, from a protection perspective, has been the growth in processes, laws and concepts whose compatibility with the prevailing protection framework is ever more tenuous. Restricted access to territory or asylum procedures, as well as increased detention, reduced welfare benefits and severe curtailment of self-sufficiency possibilities, coupled with restricted family reunion rights, are all manifestations of this trend. A major preoccupation for UNHCR and for many States at this time, particularly those States still setting up their asylum systems, is to put in place processes which responsibly identify who is a refugee, who is otherwise protection vulnerable and who is not deserving of protection, and should be rejected and returned home, in a safe and dignified manner
There is no doubt that, as with mass influx situations, so too with individual refugee arrivals, the call is growing for clearer criteria and a better system to decide which State is responsible and best suited to meet the protection needs of which refugee. Responsibility sharing is a growing concern for many States, whether in Europe, the Americas, or parts of Africa.
A third preoccupying set of problems both for UNHCR and a growing number of States world-wide, comprises the difficulties arising from the nexus between migration and asylum. The problem of irregular migratory movements which are not protection propelled is, of course, not a refugee problem per se. It nevertheless becomes a concern in the refugee protection context at the point where, for example, there is misuse of the asylum processes by would-be migrants lacking regular migration options; where asylum seekers resort to migrant smugglers to arrange departure from their countries; or where laws introduced expressly to stem or control migration have the effect, intended or otherwise, of impeding access of refugees to systems for the proper determination of their claims, or to needed protection.
A major difficulty arises where a migration problem becomes the reason for States to redefine their responsibilities to all non citizens indiscriminately, including refugees, through legislation which may, in effect, rewrite basic refugee protection concepts. Where, too, a sentiment of “too many foreigners – enough” is provoked at the local level by what is perceived to be an intolerable migration problem, it leads to hostility to refugees and makes protection much more problematic as a result.
In short, Chairman, there are a myriad of challenges to asylum posed by the growth in irregular migration in many parts of the world. How to disentangle refugees from the net of migration controls in a way which ensures their access to protection systems, without compromising the right of any State to control its migration intake, is a question with many angles necessitating careful review.
There is a fourth set of concerns shared by many refugee receiving countries. These might loosely be subsumed under the question of how to realise solutions for individuals, as well as for refugee groups, which are both lasting and protection based. Voluntary repatriation continues to be hampered in many parts of the world because of endemic violence, lingering insecurity or resurgence of conflict. While voluntary repatriation remains the most desirable solution, it is a sad truth that return in less than good circumstances, often induced, is more the norm than the exception these days. This in turn leads to fresh outflows, it delays reintegration and adds to the problem of internal displacement.
In protracted refugee situations, the will to find interim solutions is lacking. In some cases, local integration, or even possibilities for self-reliance, are not being fully exploited for political reasons, or lack of financial resources. In short, there are large numbers of refugees without access to timely or safe and lasting solutions.
Resettlement is a protection mechanism and a solution, but necessarily of limited applicability. The generous quotas offered to UNHCR to achieve protection solutions for the most vulnerable are much appreciated. The use of resettlement as a burden-sharing mechanism to enlarge the asylum space and improve the quality of asylum in countries of first asylum needs closer examination. Indeed, delineating the inter-relationship between three traditional solutions should be an important issue on the international discussion agenda.
These many and various issues have found some response in UNHCR’s protection activities, and have been covered extensively in the Note on International Protection. As the Note makes clear, protection is a dynamic and action-oriented activity, which we carry out in co-operation with States and non-governmental partners. The real challenges of protection lie in the field, where the refugees and asylum seekers are. Therefore, a main priority of the Department of International Protection is to support the Operations, through policy guidance as well as operational activities.
Let me mention to you briefly some specific activities which we have taken to strengthen UNHCR’s protection capacity in the field. One important initiative that we have taken, with generous support of donors, is the Refugee Status Determination Project. More specifically, the project aims at reducing backlogs, enhancing the capacity to deal with new cases as they arise, and setting procedural standards. An important objective is to improve the quality and consistency of refugee status determination carried out by all UNHCR offices. The project also aims at assisting Governments to carry out their own RSD responsibilities, particularly in the areas of training of eligibility committees, provision of background information, and participation in decision-making. We have projects currently covering Morocco, Niger, Chad, Iran, South Africa, Cyprus and Turkey. In addition we have requests pending from our offices in the Middle East, and central and eastern Europe.
Protection is a staff-intensive responsibility. Lack of adequate and trained protection staff is a major constraint on our ability to deliver protection effectively in some countries. DIP is currently in the process of developing a protection staffing placement proposal, which will contain a number of options for offices to explore when they are confronted by protection staff shortages in situations which fall short of an emergency, but are nevertheless urgent from a protection perspective.
Training is key to protection expertise and DIP is in the process of piloting a Protection Learning Program which uses a new training strategy designed to further a common understanding of the protection mandate among UNHCR staff, while improving staff skills to ensure that the mandate is implemented. Concurrently we continue to run specialized workshops on such topics as statelessness, returnee monitoring and human rights issues.
Guidance on protection policy and oversight to ensure the consistency of our protection responses in the field are DIP responsibilities. Over the year we have undertaken a number of such field missions, both in the context of inspection missions and independently of them. These have included oversight missions undertaken by myself to countries in the Middle East and to the north Caucuses and Russia.
We continue to reiterate the importance of partnerships to promote protection. The “Reachout Process”, on which we have reported regularly to this Executive Committee over recent years, is slowly coming to an end. Its purpose has been to promote and solicit a deeper engagement by partners, both government and non-government, in refugee protection. Over the last year we have focussed on NGO partners, with a view to encouraging them to accept a protection role going beyond advocacy, extending into a broader range of protection activities - including monitoring, reporting, information sharing and undertaking protection, as appropriate. A good example of the possibilities for collaboration is found in the project agreement concluded recently with the International Rescue Committee in Pakistan, whereby the IRC will carry out certain kinds of resettlement related functions in close collaboration with our Branch Office there. Another positive example is the initiative on refugee law clinics, which facilitates the provision of legal aid to asylum seekers and refugees by NGOs and lawyers. We have used this initiative also to add refugee law to the curricula of host universities in a number of countries, for example throughout central Europe. Many of the recommendations generated by the “Reachout” process have helped us also to prepare our thinking on the Global Protection Consultations. So too have other events of importance. Here I would like to mention in particular the colloquium which was organized with the OAU in Conakry in March of this year, to commemorate the 30th Anniversary of the 1969 OAU refugee Convention.
The various protection challenges which I have outlined provide the impetus as well as the content of the Global Protection Consultations which we launched at the July Standing Committee, and which were mentioned by the UN Secretary General and the High Commissioner earlier this week.
You will recall that at the July Standing Committee we proposed the Consultations to clarify the scope and content of protection. We stressed the 1951 Convention, as the foundation and central refugee protection instrument, and foreshadowed that strengthening its implementation was a principle objective of the process. In addition there would be a particular focus on protection challenges which are inadequately or not at all covered by the 1951 Convention and the 1967 Protocol. We described the issues in terms of concentric circles, the inner core representing the Convention, the second circle issues relating to the interpretation of the Convention, and the outer circle being those situations which the Convention does not cover.
In announcing these Consultations we foreshadowed that, between July and October, we would take soundings with government and NGO interlocutors to assess the interest in the process and seek views on the issues for discussion. The proposal has aroused a great deal of interest, a strong measure of support and, I should add, a certain degree of caution. Many Governments see the discussion of increasingly shared problems in a multi-lateral forum as valuable in itself, both to sensitise States globally to the commonality of their problems, as well as for the promise it holds of fostering understanding and promoting cooperation to redress these problems within an agreed framework. The expectation on the part of a number of governments who have responded to our initial soundings is, in the words of one, that the Consultations will “move the international community towards practical steps to address the various issues and challenges.” A number of our offices have reported that the launching of the Consultations has already served an important awareness raising function and has, not least, reinvigorated the accessions campaign.
Widespread support for the Consultations has been evident among Executive Committee members through their general debate statements and in the context of the Conclusion on International Protection. This year, the Conclusion marks a radical departure from past practice, both in the brevity of its form and the nature of its content. It focuses mainly on the endorsement of the Global Consultations. We are very grateful for the support of the Executive Committee, and the confidence which they have placed in us to steer this process.
There have, however, been some reservation from States, notably those that have traditionally been strong advocates of an agenda for change, about a too broad ranging process. They have cautioned that the Consultations should not draw UNHCR into issues outside its mandate. They have queried the appropriateness of discussing issues relating to the interpretation of the Convention and Protocol with non-Parties. NGOs, too, have expressed doubts about the utility and desirability of putting on an intergovern-mental agenda fundamental issues going to the heart of interpretation and application of Convention provisions.
As regards issues specific to the Convention, the interest clearly is in examining how and in what directions the law has developed over recent years, that is in a stock taking exercise which would allow decision-makers to be better informed about how the Convention is being understood and applied today. This is an aim we, too, see merit in pursuing, so our intention is to structure discussion on the “second circle” of issues relating to the Convention, through Round Tables of experts — drawn from government circles, NGOs, and academia — informed by background papers we are already in the process of commissioning. Our hope would be to publish these papers and the results of the discussions thereon, as a contribution to the 50th Anniversary celebrations of the Convention.
We also hope that the anniversary will become the occasion for States parties unequivocally to reaffirm their commitment to full and effective implementation of the Convention and to examine together ways in which the possibilities for this might be strengthened. This is what we had in mind when we identified the first circle issue. As the High Commissioner alluded to in her statement, it could be achieved through a major intergovernmental event next year to celebrate the 50th Anniversary.
On the third circle of issues, that is those issues not covered by the Convention, we hope to conduct the Consultations within the framework of the Executive Committee. We look forward to working closely with EXCOM member States and observer governments, as well as NGO and refugee representatives, to take this consultative process forward. For us, the active involvement of all concerned by the issues is very important. If this process is to achieve one of its key purposes, which is to move the international community an important step further towards practical, cooperative efforts to deal with new or emerging problems, then the consultative process must engage all the major stakeholders.
The Consultations will focus, broadly speaking, on the four thematic areas on which I expanded upon earlier: protection of refugees in mass influx situations, protection of refugees through individual asylum systems, including the problems inherent in the migration/asylum interface, and realization of protection-based durable solutions. The overarching theme that has to run through these sets of issues is responsibility sharing, based on international cooperation and solidarity. We have seen so called burden-sharing schemes in operation, over the years, in a number of regions. The burden-sharing schemes for the Indochinese refugees and the subsequent Comprehensive Plan of Action (CPA), the CIREFCA process for Central American refugees, or, more recently, the humanitarian evacuation of Kosovars are but some examples, the precedent value of which needs now to be assessed. The various contours of international solidarity can only benefit from being given a more broadly applicable, operational dimension.
We hope the consultative process will define the problems, as well as identify new approaches, tools or guidelines. At the same time our aim is solidly to reaffirm the principles which we already have, and which have been developed and applied over half a century. As the Secretary General said at the Millenium Summit, international law is the common language of the our global community. We need to reaffirm this common language in the refugee protection area, even while we develop a protection based new narrative to meet the many challenges of the future.
Permit me now a concluding observation. There is certainly an irony in the fact that protection is both the most promoted in rhetoric and the most disliked in practice of the functions entrusted to the High Commissioner. That it is the office’s central responsibility is often repeated and UNHCR is encouraged to give it absolute priority. At the same time, it is the exercise of this responsibility which attracts the greatest suspicion from a number of States and brings the office most often into confrontational situations. Why this disjunction between words and deeds? There are, of course, a number of possible explanations. The first clearly is inherent in the nature of protection itself, where it serves as a restraint on the freedom of any State to treat citizens or non citizens at discretion. As a limit on sovereign discretion, its exercise is rarely applauded by those States directly affected, regardless of the correctness of the act. Another explanation lies perhaps not in the way protection is practised, but the framework within which this is carried out. We hear with increasing regularity that the protection regime of which we have been made the guardian no longer exactly fits the problem.
As I have said before, refugee protection is not a static but a dynamic and action-oriented function. It has and must retain an inherent capacity for adjustment and development in the face of a changed international environment. An agenda for protection, therefore, must be firmly grounded in a principled approach: that refugee protection is first and foremost about meeting the needs of vulnerable and threatened individuals, but to be effective, it must take into account the exigencies of the environment in which protection must be delivered, including the rights and interests of states and host communities. Refugee protection is rooted in a normative framework, but expresses a broader humanitarian commitment. It is up to us, together, to renew and revitalise that commitment through the Global Consultations.
[*] Statement by Ms. Erika Feller, Director, Department of International Protection to the 51st Session of the Executive Committee of the High Commissioner’s Programme.
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