Note on International Protection (submitted by the High Commissioner)

SUMMARY

A description of developments in 1988 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 through the Economic and Social Council (Document E/1989/64).

The present Note analyses the current state of the international protection of refugees. It looks, in particular, at the specific areas of asylum, admission and non-refoulement, extradition, non-discrimination, physical safety, unaccompanied minors, resettlement and refugee protection and voluntary repatriation.

INTRODUCTION

1.         The United Nations High Commissioner for Refugees is formally mandated to protect refugees as one of the two principal responsibilities attaching to his Office. Protection is an operational, humanitarian and non-political activity which is carried out on a continuing basis in all regions of the world.

2.         The protection function has two major components. In the first instance, there is a day-to-day responsibility, mainly in relation to individual, or groups of, refugees whose fundamental rights are in jeopardy or whose general situation necessitates the intervention of UNHCR with State authorities.

3.         More broadly, UNHCR also has a doctrinal responsibility to work for the progressive development of international refugee law. In essence, this function involves promoting, interpreting, safeguarding and developing the fundamental principles of refugee protection. The immediate goal is to strengthen international commitments to receive refugees, as well as to combat discrimination and negative practices jeopardizing refugees and to search for durable solutions to their problems which give prime importance to humanitarian considerations and respect for basic rights. For the longer term, the objective is to develop and promote a far-reaching regime of refugee protection based on solid legal foundations and internationally recognized principles.

4.         In carrying out these protection functions, UNHCR is working in a climate where attitudes towards refugees which are becoming increasingly less accommodating. National perceptions of the refugee problem are more and more coloured by social and economic difficulties, concern over transcontinental movements and a degree of abuse of asylum procedures by individual claimants. The result has been a resiling from responsibilities by a number of States and, in some cases, a preparedness to disregard such responsibilities completely. As is clear from the sections of this Note which follow, there are instances, regrettably increasing, where States refuse even to respect such fundamental obligations as not to expel or send back refugees to life-threatening situations. The security of refugees and their protection against attacks on their person, or military or armed attacks against their camps or settlements, is a major preoccupation. Less dramatic, but also far-reaching in its effect, is the fact that many States are increasingly taking a narrow view of the scope of their Convention responsibilities, restricting access to asylum procedures and limiting enjoyment of the normal rights of residence.

5.         Undeniably, the reception and admission of refugees, even on a temporary basis, can impose heavy social, economic and, in some instances, environmental burdens on receiving States. Not only the assistance aspects of these problems but also their legal implications need to be pursued if the fabric of modern refugee law, as a body of rules designed to protect the interests of a particularly vulnerable group of individuals, is to be preserved and progressively developed.

6.         The international legal system is dynamic, not static, and can be made to respond both to the changes in the international climate and in the character of the modern refugee phenomenon. A major challenge facing the High Commissioner today is to work to ensure that refugee law does develop in this way and that it is made to reflect the perceptions and concerns of all those States which, since 1951, have progressively become involved with, or been drawn into, refugee problems. It is in this manner that international refugee law will be able to retain and expand its capacity to promote the welfare of those persons it was designed to protect and be able to achieve its humanitarian and human rights purposes on a global basis.

ASYLUM, ADMISSION AND NON-REFOULEMENT

7.         The state of being a refugee and the concept of asylum are inextricably linked. Asylum can, in one sense, be seen as the very condition of a refugee's existence, until a durable solution is found. It is, therefore, particularly disturbing that so essential an institution remains under serious attack on a global basis and is increasingly challenged, through the practice of a number of States, as a major method of according even initial protection to refugees.

8.         Generally speaking, asylum, in a territorial-as opposed to a diplomatic (extra-territorial) sense, is an-umbrella term for the sum total of protection provided by a State in the sovereign exercise of its responsibilities to refugees on its territory. This may involve continuous protection, under circumstances allowing the refugee to become part of a new community. In this case, it constitutes the durable solution to the problem. It has however, over years, increasingly come to be equated with basic protection only fora temporary period, which in effect has meant prohibition of the return of the refugee to frontiers of territories where his or her life or freedom would be endangered, coupled with the possibility of remaining on the territory of the sheltering State until a durable solution, outside that State, can be identified.

9.         Article 14 of the Universal Declaration of Human Rights recognizes that everyone has a right to seek and enjoy asylum from persecution. For refugees, this is a necessary complement to being able to enjoy other fundamental human rights recognized in that Declaration and enshrined in binding human rights instruments such as the two international Human Rights Covenants. These include: the right to life, liberty and security of person; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right not to be subjected to arbitrary arrest, detention or exile; the right to freedom of movement and to leave and return to one's country.

10.       That there is an internationally recognized principle of asylum is clear. The individual in need has the right to seek and enjoy asylum. Moreover, although it remains the prerogative of the State to grant durable asylum or otherwise to a particular individual refugee, at a minimum there would seem to be a general responsibility on States to admit asylum-seekers who arrive at the frontier and seek to have their status determined. For a refugee to enjoy and exercise fundamental rights and freedoms, admission, somewhere, is required as the first step. This suggests that the appropriate interpretation of provisions in the 1951 Convention dealing with non-refoulement, non-expulsion and non-penalization for illegal entry, is that the asylum-seeker is to be admitted.

11.       A large number of conclusions adopted by the Executive Committee call upon States to take a positive attitude to admission and temporary asylum. The Committee has, for example, requested States:

•       to rescue asylum-seekers in distress at sea and grant at least temporary refuge;

•       in situations of large scale influx, to admit asylum-seekers, at least on a temporary basis;

•       not to take measures, such as blocking admission, which jeopardize the institution of asylum.

12.       On a regional level there has been clear acceptance by States of the need for a liberal approach to admission for asylum purposes. The 1969 Organization of African Unity (OAU) Convention governing the specific aspects of refugee problems in Africa, in Article II (1), requires OAU Member States to "use their best endeavours ... to receive refugees" and to secure their settlement. Resolutions, declarations or principles containing similar calls have been adopted regionally in Asia (by the Asian-African Legal Consultative Committee (AALCC), Europe (the Council of Europe, Committee of Ministers) and Latin America (the Cartagena Declaration).

13.       The significance of maintaining the practice of temporary asylum to achieve humanitarian solutions to long-standing refugee problems in South-East Asia has most recently specifically been reaffirmed in the Comprehensive Plan of Action adopted by States at the International Conference on Indo-Chinese Refugees, held in Geneva on 13 and 14 June 1989. That arrangement, which has attracted broad international support, entails a regional commitment to receive, treat humanely and determine the status of all asylum-seekers and constitutes the first regional attempt to set up a coherent, harmonized status determination mechanism. The importance of temporary asylum as a protection mechanism for Central American refugees was also recognized explicitly in the Concerted Plan of Action in favour of Central American Refugees, Returnees and Displaced Persons agreed at the International Conference on Central American Refugees, which took place in Guatemala City from 29-31 May 1989. Through this Plan, the affected countries in the region confirmed their commitment to continue to grant asylum and humanitarian treatment to refugees.

14.       As is clear from the foregoing, admission, coupled with acceptable conditions of stay and just treatment of refugees, remain, together, an important aspect albeit but only one of any broadly-based approach to the refugee problem. For many refugees, even though asylum is only a temporary state and voluntary return under acceptable and safe conditions is the optimal solution, their safety and integrity will, in the first instance, rest on admission and leave to stay.

15.       The arrival of large numbers as asylum-seekers, their admission and their stay, even on a temporary basis, can create serious strains on a host country. In recognition of this fact, UNHCR works closely with States to develop appropriate solutions to refugee problems which respect both the humanitarian requirements of the individuals and the fundamental concerns of States. The initiatives taken by the Office to identify fair and speedy eligibility procedures are but one illustration of such a constructive and co-operative approach.

16.       Nevertheless problems facing asylum-seekers today seeking admission and determination of their status, and violations of the state of asylum being enjoyed by refugees, remain considerable. Other segments of this Note (notably on security and discrimination against refugees) look at these in greater detail. Of particular concern in the present context is the deteriorating situation as regards expulsion and refoulement of refugees.

17.       UNHCR had cause to put before the thirty-ninth session of the Executive Committee in 1988 its deep concerns over the practice of expelling refugees. The Committee shared these concerns and adopted, inter alia, General Conclusion (g) on protection which:

"Recalled its Conclusions Nos. 6 (XXVIII) and 7 (XXVIII) respectively on non-refoulement and expulsion and expressed deep concern that the fundamental prohibition against expulsion and refoulement are often violated by a number of States and appealed to all States to abide by their international obligations in this regard and to cease such practices immediately."

18.       Far from ceasing such practices, certain States continue to expel or refoul refugees, not only individually but, in some instances, on a large scale. UNHCR's representations to these States to abide by their international obligations and to refrain from such measures have, by and large, been disregarded. Measures of expulsion, including refoulement, remain various. They include expulsion orders against refugees, rejections at the frontier, non-admission of stowaway asylum-seekers, push-offs of boat arrivals, or interdiction on the high seas, and forcible return of refugees to countries of origin. A particular development of concern is the recent hardening of attitude in certain States to groups of so-called "long stayers" for whom no durable solution is yet in sight. Several such groups have been threatened with expulsion or even refoulement although, owing to a quick response from resettlement countries, no such measures have yet been taken.

19.       In light of the foregoing, UNHCR feels again compelled to put the problem of expulsion and refoulement of refugees, in violation of fundamental protection principles, before the Executive Committee for its consideration.

20.       The related practice of denial of admission and/or access to appropriate procedures, where they exist, for status determination is also a pressing concern of the Office. Administrative procedures or summary screening arrangements at borders have in some countries, for a number of arrivals, replaced proper procedures for determination of status accompanied by adequate legal guarantees. UNHCR is aware of instances in which asylum-seekers denied admission without the benefit of due process were subjected to particularly severe punishment on their return to their countries of origin. Moreover, the expansion of visa regimes by some countries specifically to embrace asylum-seeker-producing countries, coupled with strengthened mechanisms, such as transport carrier sanctions, to enforce immigration controls, effectively closes entry to a number of refugees. The problem with such immigration controls is that while they may be directed at non-refugee groups or abusers of the asylum process, they work indiscriminately to also hinder the access by refugees to status determination procedures and the rights and protection these persons should enjoy. UNHCR hopes that the Executive Committee will examine these problems of admission and access to procedures against the background of responsibilities concerning admission referred to earlier.

EXTRADITION OF REFUGEES

21.       The Executive Committee examined problems of extradition affecting refugees during its thirty-first session in 1980. Conclusion No. 17 (XXXI) on the subject, inter alia, emphasized the fundamental character of the non-refoulement principle, recognized the need to protect refugees in regard to extradition to a country where they have -well-founded reasons to fear persecution on grounds enumerated in the 1951 Convention, and:

"(g) Stressed that protection in regard to extradition applies to persons who fulfil the criteria of the refugee definition and who are not excluded from refugee status..."

22.       The requirement recognized by the Executive Committee that decisions in extradition cases involving refugees must respect fundamental principles of refugee protection is consistent with the phraseology of Article 33 of the 1951 Convention, which prohibits the forcible return of a refugee "in any manner whatsoever" to a territory where she or he has reason to fear persecution. This interpretation has received judicial recognition, including very recently, in certain national jurisdictions.

23.       On the other hand, there are States which still take the view that Article 33 relates principally to measures of expulsion and refoulement, not to extradition. Extradition is treated as a process taking place on a different juridical basis.

24.       Broadly speaking, the basis of extradition between States is one, or combination, of the following:

•       bilateral treaties;

•       multilateral treaties, including regional treaties, dealing specifically with extradition or containing extradition obligations in relation to particular offences;

•       ad hoc agreements in the particular case;

•       national legislation.

25.       In the view of the above-mentioned States, such protection as refugees might enjoy against extradition must be derived, in the individual case, from the phraseology of the relevant treaty or arrangement. Given this position, its merits aside, the types of protections against extradition included in extradition treaties can take on a particular importance in relation to refugees.

26.       The principle that there are certain circumstances in which a State should not extradite persons to other States is of long standing and is reflected in the terms of most extradition treaties and legislation of the past. The political offender has traditionally been regarded as a person deserving of such protection. In more recent years, inspired by broadly accepted principles of human rights and refugee law, the protection has been extended by a number of countries to embrace persons who would be threatened, upon return, with discriminatory treatment on the grounds of race, religion, colour or ethnic origin. The prohibitions against extradition have as a general rule been mandatory, with only one or two restricted exceptions (e.g. in relation to attacks against the life of Heads of State).

27.       Given the position of certain States that Article 33 cannot be automatically interpreted as embracing - and thereby protecting refugees from - extradition, the exemption from extradition of political offenders (even though not every refugee is a political offender and vice-versa) and the protection against extradition where there is the danger of discrimination on the basis of race, religion, colour or ethnic origin, together become all the more important to safeguard the security of refugees. The omission of these protections or safeguards from, or their qualification in, extradition arrangements could have potentially serious repercussions for the welfare and security of the individual refugee threatened with return through extradition.

28.       Against this background, UNHCR has been disturbed by what seems to be a developing trend in some countries to qualify existing protection in a manner potentially prejudicial to refugee interests. In particular, certain States have been including in extradition treaties:

•       an exemption from extradition for political offenders which is discretionary rather than absolute;

•       a list of offences not to be regarded as political which is lengthy and very broad in its potential application; and

•       the possibility (through the use of discretionary language) of responding positively to an extradition request made for a purpose amounting to discrimination on account of race, religion, colour or ethnic origin.

29.       In this era of ubiquitous and often random international crime, UNHCR shares the growing international concern that certain types of Offenders must not be permitted to escape due punishment. On the other hand, in closing off the escape options to serious criminals, the international community must at the same time remain vigilant in preserving the traditional and legitimate protections which have been found necessary to safeguard the interests and security of particularly vulnerable groups, such as refugees. This protection requires firm and unambiguous restatement in any new multilateral and bilateral extradition arrangements.

NON-DISCRIMINATION

30.       The non-discrimination principle is a central tenet of the international system for the protection of human rights. The Charter of the United Nations contains many references to human rights and fundamental freedoms to be enjoyed by all, without distinction as to race, sex, language or religion. Similarly, the Universal Declaration of Human Rights stipulates that everyone is entitled to all the rights and freedoms set forth in that Declaration, without distinction of any kind and adds to the group of non-permissible grounds for discrimination those of colour, political or other opinion, national or social origin, property, birth or other status. The majority of human rights instruments overwhelmingly proscribe discrimination, in articles of general application which expressly extend to all persons the specific rights which they declare.

31.       The non-discrimination principle plays a crucial role also in the area of refugee protection. In recognition thereof, the High Contracting Parties, in the preamble of the 1951 Convention relating to the Status of Refugees, considered "that the Charter of the United Nations and the Universal Declaration of Human Rights ... have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination". Article 3 of the Convention (one of the few non-derogatory articles), incorporates the non-discrimination principle in the following terms:

"The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin".

32.       Problems relating to discrimination have been considered by the Executive Committee on different occasions. In 1979, the Committee recommended, inter alia, that "decisions by States with regard to the granting of asylum shall be made without discrimination as to race, religion, political opinion, nationality or country of origin". Two years later, when elaborating its conclusions on protection of asylum-seekers in situations of large-scale influx, the Executive Committee accepted that asylum-seekers "should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity". In the same conclusion the Committee accepted that the principle of non-discrimination should also apply in relation to the treatment of asylum-seekers who have been temporarily admitted to a country pending arrangements for a durable solution.

33.       Although States by and large follow these recommendations and respect the principle of non-discrimination, important exceptions exist. These involve, primarily, discrimination arising out of the refugee's country of origin and often have their origin in ongoing tensions between countries of origin and asylum. This is, unfortunately, true in spite of international acceptance, reflected also in the preamble of the 1951 Convention, that the grant of asylum to refugees is a peaceful and humanitarian act which should not be regarded as unfriendly by any State.

34.       Discrimination based upon the refugees race or religion has also been reported. In particular, instance have been recorded in which refugees have been denied access to national programmes and procedures for the determination of refugee status because of their race. Similar considerations have led some States to deny certain refugees asylum, access to employment and possibilities to become naturalized citizens of those countries.

35.       The Executive Committee has dealt specifically with the problem of discrimination in relation to refugee women. In its 1985 Conclusion on Refugee Women and International Protection (No. 39 XXXVI), the Committee noted that many of the world's refugee women, including the very young, are exposed to special protection problems and "recognized that these problems result from their vulnerable situation which frequently exposes them to physical violence, sexual abuse, and discrimination" (emphasis added). The Committee recommended that States respond to the specific problems of refugee women, "in particular to ensure the safeguarding of their physical integrity and safety, and their equality of treatment".

36.       Since the adoption of this Conclusion, which was crucial, inter alia, in recognizing the importance of sex as a ground for discrimination, the actual practice has changed relatively little. Sexual discrimination is clearly prevalent, for example, in the unequal participation of women in the design and implementation of refugee programmes. In certain refugee programmes they are excluded altogether from the process. The issue of discrimination on grounds of sex remains, therefore, an important one in the overall implementation of programmes with regard to refugee women.

PHYSICAL SAFETY

37.       Although neither UNHCR's Statute nor the Convention relating to the Status of Refugees refer explicitly to the physical safety of refugees, it is well appreciated that the safety and well-being of refugees constitute primary concerns for States and UNHCR. References to physical safety and security in 26 Conclusions adopted by the Executive Committee over the last 13 years are ample testimony of this concern. These conclusions cover all aspects of refugee protection and include departure, treatment in asylum-countries and durable solutions, notably voluntary repatriation.

38.       Among the more important of the Executive Committee conclusions is No. 48 (XXXVIII) on Military or Armed Attacks on Refugee Camps and Settlements. Adopted by the Committee in 1987, it was hailed at the time as an important step towards dealing effectively with the problem of armed attacks on refugee camps and settlements. While its effects had yet to be felt in early 1988 (Document A/AC.96/713, paragraph 26 et seq. refers), the latter half of that year and early 1989 witnessed a decrease in the number of attacks.

39.       Nevertheless, in three countries in Asia, several cross-border attacks took place, involving either artillery fire or aerial bombardment. The total number of victims is not however known, since several of the affected camps were located in inaccessible and unsafe areas which hindered or delayed visits by UNHCR staff. In one incident, the authorities in the country of asylum alleged that chemical weapons had been used and that, as a result, more than 150 refugees had lost their lives. All other incidents also reportedly included deaths and injuries among refugees as well as in the local population.

40.       Military or armed attacks on refugee camps and settlements continued in southern Africa and the Horn of Africa. In one country in southern Africa, armed insurgent groups attacked a refugee camp in November 1988. Although no human casualties were reported, material damage was estimated at several thousand dollars. In another country in the same region, armed groups operating from the territory of the country of origin attacked one camp and abducted several refugees.

41.       In the Horn of Africa, the civil strife affecting one country continued to affect the safety of refugees and several more lost their lives in attacks launched on their settlements. Towards the end of 1988, the voluntary return movement which had been inspired both by changing conditions in the country of origin and the deteriorating security situation-in the country of asylum resulting from those attacks, came to an end and the last settlement was closed.

42.       Elsewhere in that region, civil strife affecting another country had serious consequences for the physical safety and security of the refugees. Some of the refugees aligned themselves with one of the two parties to the conflict and participated in the armed conflict. Others fled in large numbers into a neighbouring country or tried to move to safer areas. UNHCR was prevented on security grounds from monitoring the situation and could not, therefore, confirm the scale of the fighting or the number of victims, which was reportedly very high. At a later stage, the Office assisted in relocating some of the affected refugees to safer areas. Even while the situation is returning to normalcy, significant numbers of refugees continue to lose their lives or sustain serious injuries from detonating land-mines and other explosives.

43.       As can be inferred from the preceding paragraphs, a main problem facing UNHCR in relation to military and armed attacks on refugee camps and settlements is the relative lack of direct and immediate access to the scenes of attacks. This is usually the result of a combination of factors including the absence of a continuous UNHCR presence in all camps, the remoteness and relative inaccessibility of the terrain in which many camps and settlements are located, and the seriously deteriorating security situation prevailing in these areas. Co-operation of the authorities exercising control over the areas in question is also a factor. Access is vital if UNHCR is to be able to respond to the differing situations created by military or armed attacks, since only the full possession of all relevant facts will permit the Office to respond as expected of it by the Executive Committee in its Conclusion No. 48.

44.       In light of the above, a recently issued UNHCR Instruction to Field Offices stresses the importance of full and immediate access and requests concerned Field Offices to explore different contingency arrangements with the authorities with a view to ensuring rapid access in cases of attacks on refugee camps and settlements. The same instruction also provides a revised format and procedure for reporting to Headquarters, both on incidents and follow-up action taken by the authorities and UNHCR, inter alia, in order to improve the quality of the Office's reports on the subject.

45.       The problem of military or armed attacks on refugee camps and settlements is a humanitarian problem which requires a humanitarian approach. Apart from jeopardizing the safety and security of refugees, it also threatens international stability, peace and security among nations. That humanitarian approach, however, requires a political will by those, States and others, who-more directly influence events. All parties must, for example, abstain from exploiting refugees and refugee groups for military or similar purposes. As was stressed by UNHCR in the Note on International Protection submitted to last year's session of the Executive Committee A/AC.96/713), it is only when all the Parties to a particular conflict pursue policies based on purely humanitarian principles that refugees, as well as their camps and settlements, can be successfully protected from military and armed attacks.

46.       In this connection, it is with considerable preoccupation that UNHCR has noted a marked increase in instances involving the recruitment of refugees into belligerent forces. Such recruitment occurred in several countries in Africa, Asia and Latin America and involved many thousands of refugees. In some cases they were recruited into the armed forces of the country of asylum; in other instances recruitment was carried out by irregular armed forces involved in armed combat either in the country of asylum or against the refugees country of origin. Refugees have been required to carry out a variety of tasks when enrolled in such forces including carrying equipment and food, planting mines and participating directly in the fighting.

47.       Most, if not all, the incidents reported to UNHCR have involved involuntary recruitment. Refugees have either been forced to join the belligerent forces through threats or physical violence or have simply been kidnapped for that purpose. In other instances, the recruitment has been voluntary, but been brought about as a result of promises to obtain food or money and, in one instance, against a promise that enrolment would facilitate the acquisition of citizenship. Whatever the circumstances, UNHCR has intervened in a large number of instances, in order to request the national authorities of the country of asylum to ensure that the refugees are adequately protected from recruitment. The Office has also taken measures to prevent recruiting forces from entering refugee camps and settlements. Too often, however, national authorities have been unable or unwilling to extend the required protection and belligerent forces have tended to disregard the interventions made by the Office on behalf of the refugees.

48.       The recruitment of refugees into belligerent forces constitutes an unacceptable practice from the refugee protection perspective. It puts the life and integrity of refugees at risk and is contrary to the accepted notion that refugees are civilians and their camps and settlements have a strictly humanitarian and civilian nature. In addition, the recruitment of refugees can undermine the institution of asylum, and lead to the creation of tension between States, which a humanitarian approach is intended to avoid. It is, therefore, important that States and UNHCR continue their vigilance and improve their co-operation in combating this problem.

49.       The physical safety of refugees may be at risk in many other situations. More commonly, female refugees are subjected to physical violence and sexual abuse. This may occur during flight as well as in the immediate post-flight period when they are more vulnerable to extortion and lack protection from the community. Although the number of reported instances of physical violence, including rape and other forms of sexual abuse, remains high, there is an encouraging trend towards apprehending, prosecuting and convicting perpetrators for their crimes. Reports of such convictions were received from a large number of countries.

50.       Given these limited but positive trends, UNHCR was particularly concerned by the apparent resurgence of piracy attacks on asylum-seekers in the waters of South-East Asia. Of particular concern was the increasing barbarity of the attacks and lack of regard for the fate of the victims. During the first quarter of 1989, for example, more persons were listed as missing and almost the same number of women were reported to have been raped as during the whole of 1987. The second quarter of 1989 witnessed no improvement in this situation. During the month of April, for example, one asylum-seeker recounted the voyage he undertook together with some 130 others. Two days into the journey they were attacked by pirates who immediately shot and killed the pilots and the mechanic of their boat. While the men were confined to the hull of the boat, the pirates raped the women and subsequently set fire to the boat. In the ensuing panic, all boat occupants jumped into the sea where they were shot at by the pirates. The asylum-seeker who reported the incident to UNHCR and who appears to be its sole survivor, managed to float in the water for almost 30 hours, using dead bodies and debris from the boat, before he was picked up by another boat carrying asylum-seekers. Subsequently, he was able to identify four persons allegedly involved in the piracy-attack and they have since been arrested. The incident is now under investigation by the national authorities. The sheer horror of this and similar tales speaks for itself.

51.       The Anti-Piracy Programme remains active in the effort to curb these attacks and perpetrators of such attacks are being prosecuted. In one country in South-East Asia alone, 14 suspects were prosecuted and eventually convicted in 1988 and received sentences ranging from five to 50 years imprisonment. Nevertheless, the commitment in the region to the principle of first asylum needs to be maintained in order to ensure, together with the Anti-Piracy Programme, that the possibility of such attacks recurring is kept to the absolute minimum.

52.       There is, inevitably, a close relationship between physical protection and national refugee policies. In several countries in the world, asylum-seekers and refugees are kept in closed camps as a matter of policy. Surrounded by barbed wire and surveyed by police and armed personnel, the refugees are obliged to remain in these camps until they are either resettled elsewhere or elect to return to their respective countries of origin. Many of these refugees have been kept in such camps for more than a decade and there are children born in those camps and who know no other reality. This situation has led to severe mental strain among the camp inhabitants and outbreaks of violence have occurred. Often such violence finds its outlet within the family unit, and against the refugee women. Similar situations are created where refugees and asylum-seekers are kept in detention for protracted periods of time. In one incident involving detention, the concerned individual attempted to commit suicide through self-immolation. Another incident provoked a riot which was violently brought down by officials. Clearly the more desirable response to such situations is resorting to less," not more, violence. Only a long overdue reorientation of national refugee policies based on humanitarian concerns can effectively restore the refugees' physical safety and well-being.

53.       International concern for the safety and well-being of refugees underpins the respective Plans of Action adopted at the International Conference on Central American Refugees and the International Conference on Indo-Chinese Refugees. The Comprehensive Plan on Indo-Chinese Refugees strikes a careful balance as to responsibilities for admission, reception, status determination, resettlement and voluntary repatriation, precisely with a view to safeguarding the security and well-being of the individuals concerned. It was therefore with concern that the High Commissioner became aware of further redirections of boat arrivals in the region, although assurances have now been received that temporary refuge will be granted to all arrivals. Regarding the repatriation of persons determined not to be refugees, UNHCR agreed to extend its "good offices" in promoting their voluntary repatriation to Vietnam as a contribution towards the Comprehensive Plan of Action adopted by the International Conference, which specifically provides for every effort to be made to encourage voluntary return in the first instance. Alternatives recognized as being acceptable under international practices should be examined if, after the passage of reasonable time, it becomes clear that voluntary repatriation is not making sufficient progress. As a result, UNHCR has expressed its hope that governments would act in accordance with such provisions and would allow the Office sufficient time to discharge the functions exceptionally entrusted to it in the implementation of the humane solution to the problem of Vietnamese determined not to be refugees. It should be recalled that this Plan of Action, which obtained broad international support, was adopted on the basis that its set of measures are interdependent and must be applied simultaneously and in a humanitarian spirit.

UNACCOMPANIED MINORS

54.       An unaccompanied minor is defined in UNHCR's Handbook for Emergencies (1983) as one "who is separated from both parents and for whose care no person can be found who by law or custom has primary responsibility". No one circumstance characterizes the flight of such a minor and the reasons for seeking refuge. These latter, in UNHCR's experience, are various. Many unaccompanied minors reportedly come from families which have either suffered or fear persecution in their countries. Other minors have fled in order to avoid military conscription or the general instability prevailing in the countries of origin.

55.       While the Office has, since its inception, dealt with the special protection problems facing unaccompanied minors seeking refuge outside their own countries, these problems have recently become a special preoccupation in the context both of the outflow of refugees and asylum-seekers from Indo-China and of the significant numbers of unaccompanied minors arriving in Western European countries and in one country in the Horn of Africa. In addition, there has been a need to devote attention to the problems of unaccompanied minors in the repatriation programme for Namibian refugees.

56.       The framework within which UNHCR approaches the problems of unaccompanied minors is set out, inter alia, in UNHCR's "Guidelines on Refugee Children" and the Office's "Guidelines on Interviewing Unaccompanied Minors and Preparing Social Histories". In particular, the guiding principles influencing all decisions are the best interests of the child and family unity. Legal responsibility for all decisions concerning unaccompanied minors formally rests with the authorities of the countries of asylum. However, UNHCR exercises certain protection responsibilities on behalf of these minors and, in addition, is available to assist governments in caring for them and arranging durable solutions. In this regard, the Executive Committee in its Conclusion No. 47 (XXXIII) of 1987 on Refugee Children, which made a specific reference to the "special situation of unaccompanied children and children separated from their parents..", called upon the High Commissioner to "ensure that individual assessments are conducted and adequate social histories prepared for unaccompanied children and children separated from their parents, who are in the care of other families, to facilitate provision for their immediate needs, the analysis of the long-term as well as immediate viability of foster arrangements, and the planning and implementation Of durable solutions".

57.       Particular protection concerns arise where receiving countries have not foreseen or established any specially-tailored procedures for status determination or particular arrangements for the care of unaccompanied minors before and during asylum procedures. The lack of such procedures or arrangements has had a number of negative consequences. The more immediate, in a number of countries, have included detention of minors, interviewing of these minors by police authorities with no special training for the task, accommodation of minors in the same homes as "problem" children, or prolonged residence in refugee camps with no special facilities for unaccompanied minors. Over the longer term, inadequate appreciation of the needs of these minors has limited their educational possibilities and has led to the availability of insufficient financial resources to ensure that the particular requirements of the minors are properly met.

58.       Efforts are being made to respond to the problem in South-East Asia within the framework of the Comprehensive Plan of Action already referred to. In the context of this Plan, UNHCR has, together with the countries concerned, developed guidelines to be implemented by the national authorities responsible for status determination. These envisage the establishment of special committees, composed of representatives of governments, UNHCR and other appropriate agencies with child-welfare experience and training in The legal issues involved, in the different countries of asylum in order to assess the status of those below the age of 15 and to submit recommendations to the authorities, who will formalize the decision. These committees will also determine, on a case-by-case basis, which solution is in the best interest of each unaccompanied minor. In the event that voluntary repatriation is' considered the most appropriate solution, the solution would be implemented only on condition that certain arrangements (including assessment of willingness by the minor's family in the country of origin to accept the return of the minor) were made prior to the return.

59.       UNHCR has proposed a similar approach to these problems in Western Europe. In relation to the voluntary repatriation of minors who are not determined to be refugees, any UNHCR involvement would be on a "good offices" basis, the ultimate responsibility necessarily remaining with the governments of the countries concerned. In relation to the voluntary repatriation programme for Namibian returnees, it has been found necessary to establish particular mechanisms to ensure that returning unaccompanied minors are able, where possible, to trace and to unite with their families.

RESETTLEMENT AND REFUGEE PROTECTION

60.       Resettlement does not only constitute the preferred durable solution for some refugees, but functions. also as an urgent protection measure in the individual case ensuring survival in safety and dignity. The link between resettlement and refugee protection has been recognised in theory and in practice both by States and by UNHCR. It suffices to recall the urgent resettlement in third countries, for reasons of protection of large numbers of Latin American refugees in 1970s and early 1980s. Similarly, the drama of asylum-seekers rescued at sea in South-East Asia called for special resettlement schemes to be designed to ensure that these persons could be disembarked and that the maritime community would be encouraged to continue to heed the calls of other asylum-seekers in distress at sea. Several conclusions of the Executive Committee testify to the international community's commitment to provide resettlement places for these persons in order to ensure their protection.

61.       The need for urgent resettlement where this is the only means of providing protection to refugees is a global one. The Oslo Declaration and Plan of Action adopted at the International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa notes, for example, that "situations often occur where refugees cannot, for security reasons, enjoy, or continue to enjoy, asylum in the country where they first sought or obtained asylum". The Plan of Action recognizes that, in line with the principle of burden-sharing, a number of countries in southern Africa and elsewhere on the African continent have offered resettlement opportunities to South African and Namibian refugees who have found themselves in such situations. The Conference urged all members of the international community to do their utmost to increase the rate of admission of such refugees.

62.       In other situations, individual refugees requiring urgent resettlement include those threatened with immediate refoulement. Others may, like certain refugee women, be especially vulnerable to violence and abuse and therefore require urgent resettlement. In view of the situation prevailing in certain closed refugee camps, where prolonged existence within a confined space has led to a range of human rights abuses, some individual refugees also require resettlement to secure their safety and dignity. As far as Central American refugees are concerned, this need was expressly recognized in the Concerted Plan of Action earlier referred to, in which it was noted that "in exceptional cases, when some refugees cannot remain in the country of asylum for protection reasons, the possibility of third country resettlement is considered."

63.       While a limited number of countries have traditionally provided flexibility within their resettlement programmes to accommodate urgent or even emergent resettlement needs, other national programmes are not easily adapted to this essentially protective role. Nevertheless, some additional assistance was provided by a few States in response to the High Commissioner's appeal of July 1988 for more resettlement places to be made available for urgent protection cases. Considerably more is required, however, to allow UNHCR to respond to those in immediate need. Consistent with the recognition by the Executive Committee in 1988 in its Conclusion on International Solidarity and Refugee Protection» that there is a need for States actively to support the High Commissioner's protection activities, States are invited to consider how resettlement places may speedily be made available to respond to urgent protection situations facing individual refugees.

VOLUNTARY REPATRIATION

64.       Promoting and facilitating the voluntary repatriation of refugees remains one of UNHCR's fundamental protection functions. During the previous year, more than a quarter of a million refugees availed themselves of the opportunity to return voluntarily to their countries of origin and to re-establish themselves in their former communities. The main movements involved the voluntary return of some 80,000 Ugandan refugees, 69,000 Mozambican refugees, 53,000 Burundi refugees, 13,000 Central American refugees, 7,000 Ethiopian refugees, over 3,000 Zimbabweans and some 1,000 Chadians. In addition, UNHCR assisted in the return of almost 43,000 Sri Lankan Tamils and reported the return of some 45,000 Iraqi Kurds following the amnesty issued by the Government of Iraq. UNHCR also reported the spontaneous return of some 50,000 Afghan refugees to their country in early 1989.

65.       As in previous years, UNHCR worked actively to promote respect for its guidelines on voluntary repatriation. Its basic provisions were included in voluntary repatriation agreements concluded by UNHCR and national authorities, to facilitate the voluntary repatriation of Kampuchean and Vietnamese refugees. The bilateral agreements concluded by UNHCR with the Governments of Afghanistan and Pakistan follow these guidelines closely and provide for comprehensive monitoring of the return movement. In anticipation of future voluntary returns, UNHCR has significantly strengthened its field staff with a view to being able to assess the voluntariness of returns and to monitor the return movement itself as well as its consequences.

66.       UNHCR's guidelines formed the basis for the planning of UNHCR's programme for the voluntary repatriation of Namibians. By the time the operation was launched, UNHCR had reinforced its presence in the countries of asylum so as to monitor the voluntariness of the return and to assist in the return itself. Inside Namibia, UNHCR established a large presence to assist in the logistics of the operation as well as to monitor the protection of the returnees. In order to facilitate a voluntary return in safety and dignity, UNHCR was instrumental in the promulgation of a blanket amnesty for the returnees as well as the repeal of a large number of discriminatory laws. As the first voluntary repatriants arrived in Windhoek on 12 June 1989, almost 40,000 candidates for repatriation had registered with UNHCR abroad.

67.       As far as Central American refugees are concerned, programmes under way in the affected countries also followed the UNHCR guidelines on voluntary repatriation. In addition, the main principles and criteria which guide States in the context of voluntary repatriation were reinforced through the commitment expressed by the affected countries in the Concerted Plan of Action earlier referred to. Thus they reaffirmed their commitment to continue to respect the right of refugees to return as well as to receive information on the prevailing situation to allow them to reach a free decision concerning their return. The voluntary and individually-manifested character of repatriation was reaffirmed, as was the necessity for repatriations to take place in conditions of security and dignity. There was also a commitment to recognize the right of refugees to choose their destinations in their countries of origin. The principle of non-recrimination for having sought asylum was upheld, together with continued respect for the cultural and ethnic values of the returning refugees. Continued respect for access to means of subsistence and to land under the same conditions as other nationals of the countries concerned was also included amongst the commitments, together with respect for UNHCR's work in favour of returnees and the Office's access to them.

68.       Globally, voluntary repatriation programmes were, however, not without their share of problems. In some instances, pressure was exercised on refugees to return to their country. In one instance, for example, the form the refugees were requested to complete in registering for the voluntary repatriation exercise did not clearly indicate the purpose for which it was used and contained no declaration of voluntariness to return. In some other instances the opposite was observed and applicants for voluntary repatriation programmes were put under pressure not to return, by, for example, other refugees or "interest groups." On several occasions UNHCR was able to intervene to ensure continued respect for the individual's right to return in safety and dignity by having the candidates separated from those opposing return. Nevertheless, not all of the Office's interventions were met with success.

69.       Although it is encouraging to note that over a quarter of a million refugees availed themselves of voluntary repatriation during the preceding year, it must be borne in mind that during the same period a significantly higher number of persons sought international protection and assistance. In order for voluntary repatriation to have a larger impact on the overall refugee situation, it is clear that much more needs to be done. Only where conditions which provoked the original refugee movement have disappeared, can greater numbers of refugees be expected to choose voluntarily to return to their countries of origin.

CONCLUSION

70.       The year 1989 will have witnessed several significant anniversaries including the hundredth anniversary of the Treaty on International Penal Law, signed in Montevideo on 23 January 1889 and the twentieth anniversaries of, respectively, the American Convention on Human Rights signed in San Jose on 22 November 1969 and the Organization of African Unity (OAU) Convention Governing the Specific: Aspects of Refugee Problems in Africa.

71.       Each of these three instruments has made, in its own way, an important and enduring contribution to the international legal structure for the protection of refugees. The Montevideo Treaty contains the first provision on asylum in international law, where it declares that "asylum for persons persecuted for political offences is inviolable". The Pact Of San Jose takes this protection further in the Latin American context, upholding the right of every person to seek and be granted asylum from persecution. It also contains an important non-refoulement provision, declaring that "in no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions".

72.       The OAU Convention has not only made a significant contribution to ameliorating the situation of African refugees, but, more broadly, it has taken international thinking an important step forward on the issue of who should be considered a refugee in today's world. It also contains the first treaty provisions dealing with the voluntary repatriation of refugees.

73.       Such anniversaries offer a valuable opportunity to reflect on the noble principles in these and other instruments to protect the rights of individuals in jeopardy as well as on the directions the international community needs now to pursue if continuing protection is to be guaranteed.

74.       Reflection however shows that together with successes there have clearly been many disappointments and failures over the years since such fundamental protection principles as asylum and non-refoulement were first developed. This was perhaps inevitable. In a world of limited capacities and conflicting interests, hope will always exceed accomplishment. There is, nevertheless, a basis for ongoing concern. The international response to some of the situations referred to in this Note suggests a new tendency to narrow the gap between the desirable and the attainable by aiming for less, by simply denying the reality of some situations, or by narrowing the governance of basic human rights and protection principles. Such developments can only be greatly regretted.

75.       On the eve of yet another historic anniversary, the fortieth anniversary of the creation of the Office of the United Nations High Commissioner for Refugees, these reflections should serve as an impetus for action. This is an appropriate time for all members of the international community to reaffirm their commitment to those principles and standards which offer eloquent testimony to decades of international co-operation, as well as to rededicate themselves to the progressive development of the law and to continue always to extend their reach slightly beyond their immediate grasp.