UNGA'90: THE UNHCR'S REFUGEE POLICY

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Subject: UNGA'90: THE UNHCR'S REFUGEE POLICY VISION (1/3)

/* posted Thu 6 Jun 6:00am 1995 by DRUNOO@xxxxxxxxxxxx in igc:reg.burma */
/* -------------" UNGA'90: UNHCR's policy vision "--------------- */
[NB: An interesting policy document from UNHCR is posted here. Those
wishing to obtain an official document should look at UNGA reports,
which normally can be found in public libraries. -- U Ne Oo.]
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UNITED NATIONS GENERAL ASSEMBLY
Distr. GENERAL
A/AC.96/750
27 August 1990
Original: ENGLISH AND FRENCH

EXECUTIVE COMMITTEE OF THE HIGH COMMISSIOER'S PROGRAMME
Forty-fist session
Note on International Protection, Submitted by the High Commissioner

SUMMARY

A description of developments in 1989 in the field of international
protection of refugees is contained in the Report of the United Nations
High Commissioner for Refugees at the General Assembly through the Economic
and Social Council (Document E/1990/60).

The present Note analyzes in general terms the current state of the
international proteciton of refugees. In addition it looks in more detail,
from a UNHCR perspective, at suggested bases for global refugee policies in
the future and certain ways in which they might possibly be developed.
GE.90-02458.

INTRODUCTION

1. The basis structures to ensure the international proteciton of and
assistance to refugees were put in place some four decades ago. The Office
of the United Nations High Commissioner for Refugees was set up as of 1
January 1951, while the United Nations Convention relating to the Status of
Refugees was adopted in July 1951. The Convention and the Office both were
the product of the post-war co-operative spirit and reflected the
determination of the international comunity to protect and assist a
vulnerable group of persons, within the framework of international law and
on the basis of international solidarity with their plight and
international accountability for their human rights. Despite these
arrangements, the refugee and asylum-seeker problem today is bigger, more
complex and more persistent than ever. The human rights of the individuals
concerned are less in focus, asylum as a main basis of refugee protection
is increasingly under challenge and the available resources and political
will to guarantee refugees' rights, meet their needs and offer them viable
long-term prospects are no longer adequate.

2. In terms of the international protection of refugees, these are
developments with serious negative consequences. The humanitarian
considerations and human rights principles at the base of international
concern for refugees are of no less relevance today than they were in 1951.
Refugees are no less in need and no less deserving of protection. But the
perception has changed in the face of an asylum situation that is far more
complex than the one the 1951 Convention was drafted to cover. The 1951
Convention and the Statue of the Office of UNHCR both reflected the
classical approach to the protection of refugees. The essential purpose of
the Convention was to provide for the legal status of the refugee in the
country of asylum. It conceptualizes a refugee as an individual victim of
persecution and implicit in it is the assumption that the main obligations
to refugees are those of asylum states. The realities of modern refugee
movements are however somewhat different. They include the mass rather than
individual character of many intra-regional movements, the fact of
transcontinental movements and the reality that motives for departure are
often mixed, on occasion sitting uneasily with the concept of persecution
on defined grounds. To these considerations needs to be added the fact of a
migratory or abusive element now part of the flow of asylum-seekers.
Finally socio-economic variables, compounded by the protracted nature of
refugee problems in many asylum countries and coupled with political
developments at the regional level, have led to changed attitueds to the
alien in general.

3. The present magnitude, scope and geographic focus of the refugee and
asylum-seeker problem has led a significant number of States to view it, in
its entirety, essentially as a problem of immigration rather than
protection of basis rights. Where asylum-seekers were once approached by
these States as prima facie the abused and persecuted who should attract a
broadly-based humanitarian response, they are now more often regarded
primarily as potential back-door immigrants whose entry is to be resisted.
Asylum and migration problems are increasingly being treated as one and the
same, requiring an integrated approach based on a philosophy of immigration
control. Against this background, States have come to appreciate a need for
some necessary adjustments in asylum policies, in part to ensure better
sharing of responsibilities by all concerned States, including countries of
origin, rather than the asylum States alone. In fact, there are several
separate national efforts currently underway to reassess respective
national asylum policies and the international handling of the refugee
problem as well as to develop a comprehensive refugee policy which more
adequately responds to the needs of the new global refugee situation. In
such efforts, the perspective from which the refugee problem is approached
and the assumptions or premises on which policy-makers proceeds are both of
critical importance.

4. The purpose of this Note is to provoke some reflection about the
responsibilities of States and the meaning of international solidarity and
human rights protection in the refugee context, with a view to underpinning
suggestions for future directions for refugee policy that States and the
international community might work together to develop. To this end, the
Note overviews the types of problems currently faced in the protection area
and suggests certain considerations which UNHCR believes should be part of
any broadly-based approach to the refugee problem over the coming decade.

THE PROTECTION FUNCTION

5. Paragraph 1 of UNHCR's Statue (annexed to General Assembly Resolution
428 (V) of 14 December 1950) formally mandates the High Commissioner to
protect refugees as well as to seek durable solutions to their problems.
The protection function provided the basis raison d'etre for the creation
of UNHCR and gives the Office its distinctive position among the agencies
of the United Nations. This function is operational, humanitarian,
non-political and global in its applications.

6. The protection function carries with it day-to-day responsibilities
where the rights of refugees are jeopardized or the general situation
requires UNHCR's intervention. It has as its ultimate objective the
attainment of the appropriate durable solution to refugee problems.
Protection also involves promoting, safeguarding and developing the
fundamental principles of refugee protection and strengthening
international commitments to treat refugees humanely and to respect their
basic rights. Over the longer term, UNHCR's role is to develop and promote
a regime of refugee protection that is based on solid legal foundations and
is internationally recognized.

CURRENT PROTECTION PROBLEMS

7. There are some 15 million refugees in the world, spread across five
continents. As to their protection, it must be redognized that many States
co-operate positively and constructively with international efforts to
secure the rights of refugees and to meet their needs. Fair procedures to
determine status are now in place in a large number of States, including
those not party to any international instruments binding them to a level of
protection. Asylum is made available to a significant extent to persons in
need, often in spite of serious local difficulties. In addition, concerted
efforts have been made at the regional level to find humanitarian solutions
to long-standing refugee problems, in full respect of the rights of the
individuals involved.

8. On the other hand, there are protection problems which give cause for
concern. Each refugee situation generates its own, situation-specific
protection problems. Generally, these problems are, in the first instance,
of an operational nature, difficult and occasionally intractable,
encountered mainly where there are communities of refugees for whom no
lasting solution to their situations has yet been found. Secondly, there is
the serious and growing challenge to the institution of asylum as a main
way of offering protection to refugees. Finally, there is an overriding
problem, that is the financial crisis facing the Office, which has
adversely affected UNHCR's ability to protect refugees.

a) Operational problems

9. The physical security of refugees during their flight and after arrival
in asylum countries is a paramount concern. Military or armed attacks on
refugee camps or settlements destroy lives and property, refugees are
forcibly recruited into regular or irregular armed forced and women and
children refugees are subjected to physical violence or sexual abuse.
Denial by governments of access for UNHCR to refugee populations further
jeopardizes the safety of the refugees by impending any effective
monitoring or intervention. Detention of refugees and asylum-seekers in
circumstances outside the agreed guidelines on detention adopted in 1986 by
the Executive Committee of UNHCR is a related concern. These guidelines
accepted that detention of both groups should be considered only as an
exceptional measure, resorted to on grounds sepcifically prescribed by law,
for the purpose of verifying the identity of the individual, determing the
documents on which a claim to refugee status is based, dealing with cases
of destruction of documents or false documents and protecting national
security or public order. In a number of States, refugees and
asylum-seekers are automatically detained, on occasion for considerable
periods, with no possibility of judicial or administriative review. Illegal
entry or presence is used by States as aground for detention, although this
may not be consistent with Convention obligations. IN some States, closed
camps are a matter of policy, where the constant presence of barbed wire
and police or armed personnel and the very minimal living conditions in
themselves lead to disturbances and violence among camp occupants.

10. Less dramatic, perhaps, but of direct impact on the lives and
well-being of refugees and their families, are restrictions on full
enjoyment of rights guaranteed in international instruments, notably the
1951 Convention relating to the Status of Refugees. The Convention contains
comprehensive provisions on obligations to and rights of refugees in areas
as diverse as gainful employment, social security, public relief and
education. Overseeing its implementation is a protection responsibility of
UNHCR. Areas where problems regularly occur include in relation to freedom
of movement (Article 26), movable and immovable property (Article 13),
employment rights (Articles 17-19), identity papers and travel documents
(Article 27 and 28) or naturalisation (Article 34). Proper fulfilment of
undertakings by States is affected by many factors, including those outside
the immediate control of governments, such as severe economic difficulties,
shortages in housing, land and natural resources, or the effects of
continuing man-made and natural disasters. Fulfilment is also, however, a
function of political will. Where facilitating enjoyment of rights is seen
as a "pull factor" working to attract non-refugees, or as acting against
voluntary repatriation  where this is the preferred durable solution,
curtailment of rights becomes a deliberate deterrent measure. Despite
widespread recognition that the grant of asylum is a peaceful and
humanitarian act which should not be a cause of tension among States,
preservation of friendly relations with neighbouring countries may also
play a role in decisions taken on refugee rights. Naturalization, for
example, is often a politically sensitive issue, because of historical
animosities, ethnic differences or on-going political conflicts. In a
number of countries, there are also serious bureaucratic impediments to
full implementation, including a lack of manpower and of adequate training
of officials. Protection training and promotion activities, instituted by
UNHCR to overcome such difficultues, have proved only partially effective.

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