UNGA'90: UNHCR'S REFUGEE POLICY VIS

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Subject: UNGA'90: UNHCR'S REFUGEE POLICY VISION (2/3)

/* posted Fri 7 Jun 6:00am 1995 by DRUNOO@xxxxxxxxxxxx in igc:reg.burma */
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b) The asylum crisis

11. Asylum today is an umbrella term for the sum total of protection
provided by a State to refugees on its territory in the exercise of
sovereignty. This may involve continuous protection under circumstances
allowing the refugee to take up permanent residence in a new community. It
then, in effect, serves as the durable solution to the problem. It has,
however, increasingly become equated with basic protection for a temporary
period, which has meant no return of the refugee to frontiers of
territories where life or freedom is endangered, coupled with the
possiblilty of remaining on the territory of the sheltering State until a
durable solution, outside that State, can be identified.

12. Clearly, the arrival of large numbers of asylum-seekers and the
absorption of some or all of them as refugees, even on a temporary basis,
can create serious strains for host countries. This is particularly the
case for the poorer communities where the ability and readiness of the hose
population and the government to shoulder the resulting burden may be
severely affected by socio-economic problems. It is also understandable in
developed countries with overburdened asylum structures, costly social
services and a disenchanted public opinion. One reason for the latter is
the notable number of asylum-seekers arriving in many States, without
refugee-related reasons to substantiate their claims, which is in itseif a
major factor complicating the asylum question both for host States and
UNHCR.

13. It needs to be emphasized, however, that being a refugee and enjoying
asylum are inextricably linked. In some senses one can say that asylum is
the very condition of a refugee's existence. Once a refugee leaves his or
her country, the prerequisite for all that follows is at least temporary
asylum. Both international conventions and costomary international law
reaffirm the prohibition against return or refoulement of a refugee to
situations endangering life or freedom as one of the most fundamental
principles of refugee protection.

14. The institution of asylum is thus of critical importance for refugee
protection, yet it is increasingly being undermined. Certain States expel
or refoul refugees not only individually but, in some instances, on a large
scale. Measures of expulsion or refoulement are various and include
expulsion orders against refugees, forcible return of refugees to countries
of origin or unsafe third countries, electrified fences to prevent entry,
non-admission of stowaway asylum-seekers and push-offs of boat arrivals or
interdictions on the high seas. In one case, some 9,000 boat arrivals have
been towed out to sea over the last year. In another part of the world, in
one case some 9,700 perosns, and in another case over 31,000 persons since
1987, were forcibly returned across the land borders.

15. In addition, many States, some of whom were among the architects of the
international refugee protection structures, are adopting responses to
asylum-seekers attempting to enter their territories which result in denial
of admission and hindering of access to procedures for determination of
status. Administrative procedures or summary screening arrangements at
borders not accompanied by adequate legal guarantees have, in some
countries, replaced proper procedures for determination of status. Visa
regimes and stricter passport requrements have proliferated, with nationals
of countries from which refugees regularly come, often being specific
targets of such measures. Entry and access to full procedures has as a
result become very much a function of prior authorization, with discretion
to allow entry on the basis of need considerably curtailed by visa
enforcement mechanisms such as indiscriminate sanctioning of airlines for
carrying improperly documented passengers. Here, the issue is not the
legitimacy of such measures. The sovereign right of a State to control its
borders is not contested. Rather the concern is the inflexibility of the
measures where asylum-seekers with valid refugee claims are involved and
the fact that, in individual cases, persons in need may be denied
protection.

16. As a complement to such policies on admission, a number of States are
increasingly adopting a narrow view of the scope of their Convention
responsibilities. This is reflected in part in an interpretation of Article
1 of the Convention, containing the refugee definition, so that it is held
to apply to only a very limited group of people. This restrictive approach
as been particularly marked, in the attitude of those taking decisions on
status or asylum, as to the meaning of the terms "persecution" and "well
founded fear", neither of which is defined in the Convention. One
particular problem related to the narrowing of the meaning of persecution
is the often automatic denial of refugee status to persons who happen to
come from a civil war situation, often on the grounds that even excessively
cruel treatment is merely the inevitable by-product of generalized
violence. In reality, of course, persons become refugees when they flee or
remain outside a country for reasons pertinent to refugee status, whether
these reasons arise in a civil war situation, in an international conflict
of in peace time.

17. One result of such restrictive approaches as described above is a
higher rejection rate. Rejected cases in themselves create complex
problems, particularly in States where for various reasons there are
difficulties in deporting groups or categories within the rejected group.
In a number of counties, for example, because of the necessary decisions on
return are problematic or appropriate arrangements to enable return do not
exist, human and material resources have to be directed to supporting
persons whose status has been rejected. I addition, policies on admission
and access to procedures, as well as  public opinion in general, are
coloured by this blurring of distinction between refugees and rejected
claimants in terms of treatment and entitlements. This in turn has worked
to limit asylum options available for refugees. It is clear that failure to
find a solution to non-refugee problems has serious consequesces for
refugees who are the responsibility of UNHCR. The pressures resulting from
poverty and, potentially, from environmentally - driven migratory flows are
such that the principle of first asylum is gravely threatened.

18. A final problem worth highlighting in the present context is the rigid
adherence by a number of countries to the so-called "country of first
asylum" principle, so that asylum applications are rejected not for reasons
pertinent to the refugee definition but because it is judged that there is
a third country to which that person can safely be returned. Not only is
this principle not a consideration necessarily to be taken into account
under the definition, it is in itself too ill-defined while concepts such
as "safe country" or "transit country" lack satisfactory definition. In a
related but different context, mention might also be made of recent efforts
by one regional grouping of countries to draw up agreements setting out
rules to determine the country responsible for examining an asylum request.
While UNHCR has some concerns about the content of certain of these rules,
which it has already shared with the concerned countries, it nevertheless
welcomes the fact that these agreements should help to reslove the serious,
humanitarian problem of orbit cases.

19. All of the above-mentioned challenges to the institution of asylum have
had the combined effect in many regions of the world  of making asylum less
accessible. This is a major problem in itself. As important, however, is
the spin-off effect on asylum policies of other countries. Unilateral
measures limiting the availability of asylum in any country will inevitably
have the effect of shifting the burden to other States. At the same time,
such measures prejudice  the willingness of these States to continue to
receive refugees on their territory, even on a temporary basis. Finally,
UNHCR's protection activities in these countries are complicated where the
Office is required to work for adherence to standards of conduct towards
asylum-seekers and refugees which are not those globally applied.

c) The financial crisis and protection

20. If there is an asylum crisis confronting refugees at this particular
time, there is also a grave financial crisis facing UNHCR that is
threatening to compromise seriously the Office's ability to meet even the
refugees' basic needs, including for protection. Because of this crisis, a
substantial part of refugee needs cannot be covered. UNHCR is forced to
identify priorities even among mandated activities, with resulting enforced
reductions affecting not only the immediate welfare of refugees, but also
their protection and their prospects for solutions, particularly voluntary
repatriation.

21. As to the effect on protection, the degree of co-operation UNHCR enjoys
with States is often linked to the material assistance it is able to
channel to refugees in these States. The overwhelming majority of the
world's refugee populaitons is in poor countries, adding another burden to
the capability of governments with meagre resources to meet even the basic
requirements of their own people */. Indeed the economic and environmental
consequences of providing asylum can be of such proportions that
international material assistance is vital at an early stage. In some
recent instances, government officials have suggested that the continued
granting of asylum might be dependent on adequate resources being made
available by UNHCR for those admitted to the territory.

22. Access to refugee populations, without which there can be no effective
protection, is often either directly obtained or greatly facilitated
through on-going assistance programs. Resources constraints have also
liited UNHCR's ability to monitor implementation of the 1951 Convention, or
to undertake desirable promotional activities. Various protection seminars
and workshops have already had to be cancelled. UNHCR's participation in
refugee-status determination procedures, a staff-intensive, traditional
function, has been adversely affected. Finally, and perhaps ironically,
financial shortfalls are hampering the capacity of the Office both to
introduce new tools with longer-term cost-saving impact (e.g. legal data
bases) and to become more involved in on-going international efforts to
reflect on and deal with aspects of the modern refugee problem in a more
comprehansive, timely and effective manner.

footnote */ UNHCR continues to make efforts to draw attention to the
devastating impact that large scale influxes can have on least developed
countries. In this respect attention is drawn to the document "Refugee - A
Challenge for Least Developed Countries" which UNHCR has submitted for the
forthcoming 2nd UNited Nations Conference on Least Developed Countries, to
be held in Paris from 3 -14 September 1990.
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