NGO statement on the note on international protection - UNHCR's 45th Standing Committee, Jun 2009

Report
from International Council of Voluntary Agencies
Published on 25 Jun 2009 View Original
EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER'S PROGRAMME

STANDING COMMITTEE
45th Meeting
23-25 June 2009

Agenda Item 3. (a)

This statement has been drafted in consultation with, and is delivered on behalf of, a wide range of NGOs and attempts to reflect the diversity of views within the NGO community.

Ladies and Gentlemen,

Since 4 May 2009, more than 2 million persons have been forcibly displaced from their homes in Pakistan's North-West Frontier Province as a result of fighting in the Swat Valley. The population of IDPs in Pakistan is now likely one of the three largest in the world. More than 90 percent of the IDP population is generously hosted by communities, which - while preferable to housing people in camps - poses unique challenges for relief operations. NGOs express their regret over the recent bombing in Peshawar and the loss of UN colleagues. In order to ensure adequate access to populations in need, humanitarian actors must be allowed to operate independently. While there have been recent welcome pledges of funds from the Government of Pakistan and donors, we are concerned over the slowness of funding, particularly when channelled through clusters. We are also concerned that clusters are focusing too much on the camp populations and not enough on the populations outside of camps. More senior staff must be made available to lead clusters and they must be run in a more inclusive manner so that NGOs - both national and international - are seen as equal partners. There have been reports that the Government of Pakistan is encouraging IDPs to return to Buner, despite inadequate security and the presence of unexploded ordnance. Any return must be fully voluntary and based on a free and informed choice. Given that internal displacement is likely to continue and expand to other provinces as the conflict moves to Waziristan, we encourage the development of contingency plans for further displacement.

Reaffirming Rights

States must reaffirm everyone's right to seek and to enjoy asylum from persecution and must commit to respect the full range of rights guaranteed under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. NGOs express their concern that these rights continue to be undermined and urge States to ensure that their actions and policies do not violate these rights, either within their territory or in the territory of other States. States must similarly reaffirm everyone's right to a nationality through the prevention and reduction of statelessness as highlighted under the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention Relating to the Prevention of Statelessness.

Responsibility Sharing

Responsibilities remain unfairly spread. Countries that border conflict-afflicted States continue to take on a disproportionately large share of the responsibility of addressing refugee flows. A number of tentative, but ultimately stalled, attempts at developing measures for responsibility sharing have resulted in a system that relies on fragile promises of collaboration and unreliable financial backing. The absence of clear parameters for responsibility sharing remains a glaring omission from a comprehensive international protection scheme. Access to basic human rights such as employment, freedom of movement, health, and education, affirmed in international human rights and refugee law instruments, remain unattainable luxuries for many refugees. States must coordinate a comprehensive international responsibility sharing response until results are achieved.

While NGOs applaud the efforts of States in hosting refugees and aiding in the pursuit of durable solutions, in particular the official voluntary repatriation of 700,000 refugees and the resettlement of 86,000 individuals last year, much more needs to be done. The opening of the Emergency Transit Centre in Romania in March 2009 is an innovative way of hosting refugees in urgent need of evacuation from their countries of first asylum due to life-threatening conditions while they await resettlement. NGOs are pleased that similar mechanisms will soon be established in the Philippines and Burkina Faso and hope that the centre will become an example of innovative approaches to responding to refugee needs, and perhaps a step towards a more comprehensive global response to emergencies.

Subsidising the warehousing of refugees is not international responsibility sharing. Donors must insist that development programmes include refugees and, more importantly, include the realisation of refugees' rights to participate in economic development (e.g. to work, to practice professions, to run businesses, to own property, to move about freely, and to choose their place of residence) among their criteria for development aid. They should also commit to funding rights-based, community hosting alternatives, and self-reliance instead of forcing refugees to live in camps.

NGOs are concerned by the refusal of some States, including China, Egypt, Sri Lanka, and Thailand, to permit UNHCR unfettered access to assist, screen, monitor, and protect all populations of concern. NGOs call on States to desist from blocking UNHCR's attempts to fulfil its mandate and to uphold their obligations under Article 35 of the 1951 Convention relating to the Status of Refugees.

Durable Solutions

At a time when UNHCR's capacity to refer refugees outstrips States' capacity to provide resettlement, the three functions of resettlement must be reaffirmed: first, to provide protection for refugees whose safety is at immediate risk; second, to provide a more permanent option for refugees to rebuild their lives in a third country when the potential for successful voluntary return to their own country or integration in their current country of asylum is otherwise unlikely; and third, to be a means for States to share responsibility for the world's refugees.

Given the limited number of resettlement places available, NGOs call for the following: first, States of first asylum must remove all barriers and facilitate exit permits for those offered resettlement; second, States providing resettlement places must work closely with UNHCR to ensure that caseloads perceived as "difficult" or "unpopular" are not forgotten; and third, UNHCR must ensure that the populations referred are realistically able to resettle, so that scarce State resources are not taken up by processing populations unavailable for resettlement. Protection should be the guiding concern in all resettlement determinations.

NGOs applaud recent momentum on asylum in the EU, including the further development of the European Asylum Support Office, with which NGOs look forward to engaging, and the agreement by Belgium, the Czech Republic, France, Germany, Luxembourg, and Romania to take in refugees within the resettlement programme of UNHCR. NGOs further welcome Japan becoming a resettlement country under its 2010 pilot programme. NGOs urge those States without existing resettlement programmes to seriously consider creating them and those States with programmes to increase their resettlement numbers.

While supporting the expansion of resettlement, NGOs express particular concern regarding European Council discussions regarding a processing "scheme" whereby UNHCR would be engaged to process for resettlement selected asylum-seekers interdicted and forcibly returned to Libya by Italian and Maltese authorities. We reaffirm the principle that resettlement is complementary to the right to seek asylum and not a substitute for the right to seek asylum.

NGOs welcome recent initiatives by UNHCR and States to use resettlement strategically to find broader durable solutions for those trapped in protracted refugee situations. The strategic use of resettlement plays an important role in a well-functioning and robust international protection system. However, with the global financial crisis putting pressure on States to justify their resettlement programmes, unless more States come forward to offer places, difficult decisions about which groups or individuals are ultimately resettled will have to be made. These decisions must be made according to protection need and not subjective "integration potential" criteria. NGOs welcome the opportunity to work closely with UNHCR and States to ensure those most in need are recognised and resettled quickly. Lastly, when resettling skilled refugees affects the provision of vital camp services, States must act to ensure these services continue. For example, up to half of skilled refugees on the Thailand-Myanmar border have been resettled, resulting in fewer health and education services in the camps. NGOs urge States to address such shortages by providing further support for camp services.

NGOs express concern regarding the extent to which refugees in Tanzania, Rwanda, and Uganda are being given information to make decisions regarding repatriation or local integration. First, reports raise questions of the voluntariness and dignity of the repatriation process for almost 40,000 Burundian refugees in Mtabila Camp, Tanzania. Tanzanian authorities have already closed down the camp's markets and schools and plan to close the camp itself by the end of June 2009. Second, Rwanda closed its last Burundian refugee camp on 31 May 2009 and forced the return of 500 Burundian refugees under the watch of UNHCR. Third, UNHCR and the Governments of Uganda and Rwanda agreed on a resolution to repatriate all Rwandan refugees currently in Uganda by the end of July 2009. NGOs believe that whilst it is essential that UNHCR collaborate with the host governments in the process of repatriation, such collaboration must be done with total objectivity and impartiality; otherwise, the level of protection they can genuinely offer those within the ambit of their mandate will be questionable. NGOs urge the governments and UNHCR to clarify and demonstrate the voluntary nature of these repatriation exercises and inform refugees of alternate durable solutions in case they are unwilling to return to their countries of origin.

Refoulement and Push-Backs

NGOs note with deep regret that despite the absolute nature of the principle of non-refoulement, some States continue to forcibly return asylum-seekers, refugees, and stateless persons to countries where they risk serious human rights abuses, including torture and other forms of persecution. Kenya's refoulement of hundreds, if not thousands, of Somali refugees during 2008 and 2009, is a prime example of the continuing violation of this cornerstone of refugee protection. Kenyan government officials have confirmed that the police and military are under instruction to return Somalis, even though the majority are fleeing persecution and violence in Somalia and seeking international protection. NGOs condemn such serious violations of State obligations under international law and urge donors to re-emphasise to the Kenyan government that it must permit all asylum-seekers access to international protection. The refoulement by Egypt of 1,200 Eritreans and 49 Southern Sudanese from April to June 2008; and by Israel of 91 Eritreans, Sudanese, and Somalis to Egypt in August 2008 are but a few of many other worrying examples.

NGOs are concerned about the interception and turn-back policies of the Italian government in response to boat arrivals from Libya in May 2009 and of the Thai government in response to the Rohingya in December 2008. First, NGOs express their dismay concerning events in April and May 2009 involving boat people at the door of Europe, including the diversions of search and rescue missions and indiscriminate push-backs openly ordered by authorities in Italy and Malta. Within weeks of the drowning on a single day of some 250 people trying to reach Italy, 238 people were interdicted in international waters and immediately returned to Libya without consideration of their protection needs or whether the group included sick, injured, or disabled people, pregnant women, unaccompanied children, victims of trafficking, or other particularly vulnerable people in need of humanitarian attention.

Second, NGOs are also concerned about the treatment of Rohingya boat people who flee persecution in Myanmar and Bangladesh. NGOs commend the Thai government for its commitment to reverse its policy of interception and push-backs, but note with concern that Thailand and other States in the region continue to detain Rohingya asylum-seekers arbitrarily. NGOs urge the governments such as Indonesia, Australia, Malaysia, Thailand, Bangladesh, and Burma to develop a regional solution to address the protection needs of Rohingya. However, NGOs believe that such a solution cannot be effective or sustainable unless it involves all stakeholders, is transparent, and prioritises States' protection obligations over the criminalisation of irregular migration.

NGOs believe that it is not the number of people in mixed migratory flows that is the real problem, but rather the lack of will and structures to adequately assist and refer them. NGOs emphasise the importance of providing voyagers with humanitarian assistance and assessing the protection needs of groups including refugees, victims of trafficking, torture or trauma, and women or children in order to refer them to professional structures and services to which basic human decency and international law entitle them.

NGOs appreciate the practical approach that UNHCR has taken with its 10-Point Plan on refugee protection and mixed migration, particularly points 5 and 6. We encourage recent funding and policy steps by the European Union and the Council of Europe to promote the development of mechanisms for differentiation, protection, assistance, and responsibility sharing. NGOs can share resources, expertise, responsibilities, and best practices with governments and international organisations engaged in this work, with particular urgency in the areas of the Mediterranean, North Atlantic, and Indian Ocean.

Restrictive Refugee Laws and Migration Control Measures

NGOs remain concerned by the extra-territorialisation of migration control and other offshore border controls, such as the safe country concepts, removal of applicants with fraudulent documents without right of hearing or appeal, restrictive visa requirements, carrier sanctions, readmission agreements with third countries, and involvement in extraterritorial solutions such as out-posted immigration officials, all of which remain very real barriers for individuals in search of safety and protection. The continuous return of individuals to States where they are at real risk of suffering serious harm from non-State agents without the country of origin providing any reasonable level of protection against such harm remains a serious concern to NGOs. The incorporation of such policies in new refugee and asylum-related legislation remain of particular concern. NGOs call on States and UNHCR to provide greater transparency and openness to the input of civil society and refugees in the process of refugee and asylum law revision. NGOs reaffirm that the third safe country and safe country of origin concepts as interpreted in the EU not only undermine the spirit and standards of the Refugee Convention, but also set dangerous examples for potential emulation by other regions and States.

Smuggling and Trafficking

NGOs are concerned that increasing restrictions on the movement of people are creating an ever more conducive environment for people smuggling. Smugglers thrive on stronger border controls and tighter visa restrictions, both factors that make refugees and other migrants more likely to resort to soliciting the assistance of smugglers in their passage to other countries.

NGOs express concern about State practices, particularly in the EU, which link eligibility of trafficked persons for temporary residence permits to willingness to testify against the traffickers, thereby eroding their right to seek asylum and the accompanying rights of refugee status. National residency regimes, and the way in which they are implemented deeply impact upon the decisions made by victims of trafficking. NGOs urge States to ensure that refugee status determination procedures and temporary residence permit schemes allow participants time for reflection and to ensure the well-being of trafficking victims.

Detention

Harsh detention policies remain a concern in most States, despite the absence of serious reasons to justify detention and the existence of Article 31 of the Refugee Convention under which States shall not impose penalties on refugees on account of their illegal entry or presence. Of equal concern are the conditions of detention, which are often deplorable and unnecessarily penal in nature, with shackles and prison bars, overcrowded cells mixing gender and age, lack of hygiene, and restricted access to habeas corpus or other legal resources to assert claims. In Malaysia, there have been over 1,300 reported deaths of migrants and refugees in detention since 2003. In the United States, where over 3,000 asylum-seekers were detained last year, the new administration should seize the opportunity to end the practice of unwarranted detention and enact reforms that prevent prolonged detention without judicial review. NGOs reiterate that, as a general rule, detention of asylum-seekers - especially children - should not occur, and that when it does occur, it must be manifestly necessary and proportional to the goal to be achieved and subject to full procedural safeguards, including full judicial review and time limitations.

NGOs applaud the recent decision of S.D. v. Greece by the European Court of Human Rights, in which the Court held that a Turkish refugee's right to liberty and security had been violated by Greece due to the unlawfulness of his detention and the fact that he had been left in a "legal vacuum", unable under Greek law to challenge the lawfulness of his detention. The Court further held that the conditions of his detention amounted to degrading treatment in violation of the prohibition on inhuman or degrading treatment or punishment. NGOs applaud the Court's consideration of NGO reports documenting the deplorable conditions of detention in the holding facilities near the Greece-Turkey border.

Climate Change and Environmentally Induced Displacement

Patterns of displacement are increasingly impacted by environmental factors such as climate change, natural disasters, population growth, unequal access to declining resources, and ecological damage. Conflict, extreme deprivation and climate change interact in complex ways to cause displacement and perhaps in some cases, statelessness. NGOs call upon UNHCR and States to seriously address the legal implications of displacement driven by forces other than persecution. States have resorted to subsidiary or temporary protection, but there is still a large protection gap between those refugees protected by the Convention and the group of persons not covered by it. NGOs urge UNHCR to consider drafting, in collaboration with appropriate actors, protection-sensitive guiding principles on climate change and environmentally induced displacement.

Ratification of the Refugee Convention and its Protocol

NGOs welcome the succession of Montenegro to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. NGOs also welcome the ratification of refugee laws in several countries but are concerned about the lack of implementing regulations to support them. NGOs applaud States that have adopted new refugee legislation over the past year, such as Burundi, Portugal, Belarus, Nicaragua, Guinea-Bissau, and Serbia, and the new regulations in Kenya. NGOs hope that South Korea will become a leading asylum country in the region, particularly through the adoption of a new refugee law that might put into place a system of protection for refugees in the country.

In parts of the Middle East, where only seven States have acceded to the 1951 Convention and its 1967 Protocol, many States are reluctant to commit formally to the international legal framework. Although refugee status determination (RSD) mechanisms exist in all the Central Asian countries except Uzbekistan, lack of political will continues to be a barrier to accessing RSD procedures. In other parts of Asia, including Southeast Asia, many countries continue to rely on UNHCR to conduct RSD, assist refugees, and identify solutions for them.

Refugee Status Determination Procedures

Given that RSD is an integral channel for refugees to access their rights, NGOs are concerned about evidence disclosure during mandate RSD and are concerned that current UNHCR evidence policies increase erroneous rejections of refugee claims by UNHCR offices and set poor examples for governments that are creating their own RSD systems. NGOs request UNHCR to consider a concrete proposal on how to address this concern. For example, current policy prohibits providing asylum-seekers with copies of their own interview transcripts, clashing with minimum standards of procedural fairness that UNHCR has promoted elsewhere. NGOs believe such shortcomings in evidence disclosure increase the risk of refugees being denied protection and risk eroding procedural safeguards in government-conducted RSD. Not all UNHCR country offices have incorporated the recent reforms; even the refusal to give reasons for rejection continues in many offices.

The Right to a Nationality

NGOs acknowledge UNHCR's increasing commitment to prevent, identify, and reduce statelessness, and to protect stateless persons. NGOs also welcome the accessions of Austria, Belize, Montenegro, Romania, and Rwanda to the 1954 Convention relating to the Status of Stateless Persons, and of Brazil, Finland, New Zealand, Romania, and Rwanda to the 1961 Convention on the Reduction of Statelessness. States must put a stop to statelessness in their laws and practices, and NGOs urge States to sign and ratify these critical conventions. NGOs encourage UNHCR to take longer strides toward fully institutionalising the agency's mandate on behalf of stateless persons through continued development of regional and national initiatives.

Internally Displaced Persons

NGOs are supportive of efforts to promote new, legally binding regional mechanisms for the protection of IDPs. The International Conference on the Great Lakes Region Protocol on the Protection and Assistance to IDPs is now in effect, and we urge the 11 Member States to pass implementing legislation. We welcome African Union (AU) efforts to finalise the draft Convention on the Protection and Assistance of IDPs in Africa and express our desire that it be signed and ratified by AU States.

Refugee and IDP Situations

We remain concerned about the humanitarian situation for Iraqis displaced since the 2003 United States-led invasion. Although the security situation in Iraq has improved in some areas, no mass returns have occurred. Many of those who have returned were unable to return to their original homes, as the homes were destroyed or occupied and the ethnic composition of their neighbourhoods altered. The situation is likely to become a protracted refugee crisis, making a comprehensive, long-term plan to address the crisis by the international community crucial. States hosting refugees continue to carry a huge burden and are increasingly concerned about what they fear is gradually becoming a permanent refugee situation. In order to preserve protection space for displaced Iraqis, host States must continue their international support. We note with concern that few donors have funded the UNHCR appeals for Iraq for 2009. UNHCR anticipates having to cut back on certain kinds of assistance to refugees, including distribution of non-food items and health care services. We urge the international community and the United States in particular to fully fund appeals so that much needed humanitarian relief resources can be provided. We further encourage UNHCR to be creative and flexible in working with a wider variety of locally based NGOs inside Iraq, as they are currently the main actors providing assistance to the displaced.

NGOs are encouraged that some Palestinian refugees from the Iraq-Syria border have been resettled. There are many other Palestinian refugees from Iraq living in precarious situations without protection in Syria, throughout the Middle East, India, Cyprus, and many other countries. Because these refugees are stateless and have often been denied travel permits to return to Iraq or to the Occupied Palestinian Territories, resettlement is the only solution for them. This vulnerable group must not be forgotten.

NGOs are concerned about the 90,000 persons who have fled fighting between the Sri Lankan national army and the Liberation Tigers of Tamil Eelam in northeast Sri Lanka in late May 2009, bringing the total that have fled in the last several months to 290,000. NGOs strongly urge the Sri Lankan government to permit UNHCR and NGOs access to the country's dozens of IDP camps - which because of free movement restrictions are in reality huge detention centres - to provide protection, humanitarian assistance, and independent monitoring of IDP screening processes. NGOs call on the Sri Lankan government to immediately permit IDPs freedom of movement. The protection situation in Sri Lanka remains volatile and NGOs call on States hosting Sri Lankan asylum-seekers to refrain from forcibly returning asylum-seekers and refugees to Sri Lanka. NGOs call on donors and the Sri Lankan government to achieve the principles of engagement as reiterated in the mid-term review of the Guidance Note on Assistance to IDPs in Vavuniya, Jaffna, and Mannar of April 2009.

An estimated 3 million refugees have fled from Zimbabwe to South Africa to escape political persecution and extreme deprivation. In 2008 alone, some 265,000 Zimbabweans claimed asylum in South Africa. In response to this influx, South Africa recently announced that Zimbabweans can receive permits to stay legally in South Africa for up to 12 months. NGOs believe that while the permits are an extremely welcome measure that should continue, UNHCR should work with the South African government to increase the capacity and transparency of South Africa's RSD process as it continues to suffer from serious shortcomings. NGOs are also concerned by continued reports of refoulement by South Africa.

More than 500,000 individuals were displaced by armed conflict between the Moro Islamic Liberation Forces and the Armed Forces of the Philippines (AFP) in Mindanao, Philippines following the collapse of the peace process in August 2008. More than 258,000 people remain displaced, under dire conditions with inadequate protection or humanitarian assistance. Emergency food aid has, on occasion, been blocked by the AFP. NGOs commend UNHCR for deploying a senior protection officer to the Philippines in June 2009 for the purpose of increasing protection capacity. This presence should be sustained, as many believe the conflict will escalate over the coming year.

The continued shooting, detention, and refoulement of refugees from Egypt are also a matter of deep concern. Beginning in February 2008, Egypt refused to grant UNHCR access to Eritreans in detention. During April through June 2008, Egypt refouled around 1,200 individuals to Eritrea and 49 individuals to Southern Sudan.

Thank you.