Report of the 21 June 1995 inter-sessional meeting of the Sub-Committee of the Whole on International Protection

EC/SCP/92

Executive Committee of the High Commissioner's Programme, 46th session
Sub-Committee of the Whole on International Protection, 27th meeting
13 October 1995

I. INTRODUCTION

1. The twenty-sixth meeting of the Sub-Committee of the Whole on International Protection convened on 21 June 1995 under the chairmanship of His Excellency Ambassador Ahmad Kamal (Pakistan).

2. In his opening remarks, the Chairman recalled that the forty-fifth session of the Executive Committee had recognized the continuing value of these inter-sessional meetings and had asked that at least one such meeting be convened in the course of the year to consider current protection issues.

3. More specifically, the Executive Committee had called on the Sub-Committee to consider how best to ensure that international protection is provided to all who need it, notably those unable to return safely to their countries of origin because of situations of conflict. In line with its emphasis on ensuring the effectiveness of efforts to prevent new refuge flows, the Executive Committee also noted with concern the problems of stateless persons in various regions of the world. In addressing the other item on the agenda - sexual violence against refugees - the Chairman recalled that the plight of refugee women was a subject that has long preoccupied the Executive Committee.

4. The following agenda (EC/1995/SCP/CRP.1) was adopted without comment.

1. Adoption of the agenda

2. The scope of international protection in mass influx

3. Statelessness

4. Guidelines on sexual violence against refugees

5. Any other business

II. THE SCOPE OF INTERNATIONAL PROTECTION IN MASS INFLUX

A. Opening remarks

5. In his introductory remarks, the Chairman recalled that the Executive Committee, at its forty-fifth session, had encouraged the High Commissioner to explore further measures to ensure international protection to all who required it and had asked her to engage in further consultations concerning measures to achieve this objective, which might include the elaboration of guiding principles, including for concerted action. He recognized that the subject was a complex issue which would have to take account of the existing regional approaches. He hoped that the debate over this agenda item, which was at the heart of international protection, would lead to a consensus on how best to approach such measures.

6. The Director of UNHCR's Division of International Protection introduced the conference room paper entitled The Scope of International Protection in Mass Influx (EC/1995/SCP/CRP.3). He noted that one of the foremost challenges currently facing the international protection regime was how to enhance the legal, conceptual and institutional basis for providing protection to large groups of civilians, uprooted by conflict and unable to return home safely. The international community had given the High Commissioner a strongly endorsed universal mandate to assist and protect those forced to flee man-made catastrophes. He pointed out that it was necessary that this mandate be supported by an equally consistent response by States in all regions, in extending protection to those in this category who needed it. In addition to differences in the legal protection offered in various regions, there was no general agreement at the international level as to how protection should be extended, to whom, and in what form.

7. He noted that last year's Conclusion on International Protection adopted by the Executive Committee at its forty-fifth session had requested UNHCR to examine measures which might respond to the challenge of ensuring protection to all who needed it, particularly in situations of mass influx, which could include the elaboration of guiding principles (A/AC.96/839, para. 19 (q)). In the conference room paper, he continued, UNHCR had not suggested these principles, but outlined a number of elements central to the consultations UNHCR had been charged to undertake with the Executive Committee on the subject.

8. He recalled also that if applied positively and liberally, as the drafters had intended, the 1951 Convention and the 1967 Protocol would, in fact, properly apply to a large majority of persons fleeing conflict or internal upheaval. Positive group determination on objective criteria was appropriate and consistent with the Convention, which did not presuppose permanent exile or integration. He mentioned that the concept of temporary protection as a response to the crisis in the former Yugoslavia had developed as one way to provide protection to large groups of people fleeing armed conflict. There was, however, a need to reach a degree of consensus as to how to advance the issue; one approach would be through the development of a framework of guiding principles which would reflect international solidarity and burden-sharing.

B. General comments by delegations

9. One delegation, speaking on behalf of others, felt that UNHCR's suggestions as to how to improve the system of refugee protection could encourage uncontrolled migration. In their view, pragmatic and flexible regional approaches were preferable to an international instrument or to the elaboration of guiding principles. In response to a question from the Chairman, the same delegation confirmed that the States on whose behalf they spoke were supportive of UNHCR's efforts to explore measures to strengthen the protection regime, and to engage in further consultations with States in this area.

10. All other delegations that took the floor welcomed UNHCR's efforts to address the so-called "protection gap" and to provide further guidance for addressing situations of mass influx. They thanked the Office for the informative paper provided for this agenda item.

11. Many delegations referred to the concept of temporary protection, in the context of the response to the conflict in the former Yugoslavia. A number of delegations noted that States might be less prepared to provide temporary protection if it led to permanent or long-term integration, rather than focusing on return to the country of origin. Some delegations were concerned that the formalization of the concept of temporary protection would jeopardize its pragmatic and flexible nature. One delegation stated that, on the issue of a reasonable time frame after admission for the transition to a higher standard of treatment, three years was the limit beyond which maintaining people in a relatively precarious state became counter-productive for the host country and an undue curtailment of the ability of persons concerned to resume normal lives.

12. There was a general call for flexible approaches which, in the view of most delegations, would best ensure that States would be able to maintain protection in situations of mass influx where the protection needs of large groups exceeded the scope of the 1951 Convention. Some delegations also referred to the importance of an efficient burden-sharing system in this context.

13. Some delegations affirmed that most States provided protection to persons in need of protection who fell outside the scope of the 1951 Convention and the 1967 Protocol as a matter of practice, but were, at this stage, not willing to accept an international legal obligation to do so. One delegation believed it was important to develop an analytical matrix of types of influx with different responses calibrated to the different types of flows. There was emphasis on the pragmatic ability to sustain a relatively generous policy rather than the expansion of standardized legal frameworks. One delegation cautioned that the examination of options to extend protection to all who needed it should not have the effect of diminishing support for the existing universal regime based on the Convention as the cornerstone of international refugee law.

14. UNHCR was encouraged by one delegation to further develop the notion of group determinations in situations of mass influx, particularly group protection other than refugee status. UNHCR was urged by several delegations to be creative and flexible. Only a gradual process could help develop a framework of guiding principles and basic standards that would find the required sustainable consensus.

15. In general, delegations emphasized the need to maintain flexibility in this area. Many delegations also stressed the need for regional approaches. There was consensus that the matter would be put on the Sub-Committee agenda in October. It was observed that delegations from regions not affected by temporary protection arrangements generally did not participate in the discussion.

C. Closing remarks

16. In his closing remarks, the Director of the Division of International Protection recalled that the note on the agenda item was prompted by last year's Executive Committee General Conclusion on International Protection (A/AC.96/836, para.19). He took note of the concerns which had been expressed by States in relation to the agenda item. UNHCR would consult with members of the Executive Committee regarding how to proceed further with the issue, and at what pace, prior to the next meeting of the Sub-Committee in October 1995. He stressed that in view of the magnitude and complexity of the issue, no quick answers could be expected. Furthermore, the subject was not region-specific and should not be seen as such. The concept of temporary protection which grew out of a specific set of circumstances was only one aspect of the response to the overall situation. He also said that an agreement on a framework of guiding principles was not incompatible with ad-hoc, flexible arrangements.

17. The Chairman, in closing, recognized that the subject was complex and required a response. He felt there was a consensus to continue consultations on the subject, and thought guidelines would emerge over time as a result of these consultations. He called on the delegations to consider the subject seriously at the next meeting of the Sub-Committee, at which occasion he hoped the issue could be further advanced.

III. STATELESSNESS

A. Opening remarks

18. In his opening remarks, the Chairman recalled that the Executive Committee had, at its forty-fifth session in October 1994, noted the persistent problems of stateless persons and called upon UNHCR to strengthen its efforts in this domain while keeping the Executive Committee informed of these activities (A/AC.96/839, para.19 (ee)). He observed that the document in front of the assembly, in pursuance of the Executive Committee's request, presented a review of UNHCR's historical and legal role in relation to the issue of statelessness. He recalled the firm foundation for UNHCR's strengthened efforts on behalf of stateless persons.

19. The Chief of the General Legal Advice Section of UNHCR's Division of International Protection introduced the Note on UNHCR and Stateless Persons (EC/1995/SCP/CRP.2). She pointed out that UNHCR's interest and involvement with stateless persons falls under three headings: the original mandated responsibilities; responsibilities subsequently mandated by the international community, including those under the 1961 Convention on the Reduction of Statelessness; and, finally, the relatively recent emphasis on prevention, wherever possible, of the causes of refugee movements. Possession of a nationality confers the right to have rights. Given the connection between nationality and national protection, the lack of a nationality or the inability to exercise one's nationality may lead to displacement. The stabilizing elements in the rights and duties which attach to citizenship were noted, as was the similarity between the situation of stateless persons and refugees due to the lack of national protection. Thus, contributing to the resolution of problems of statelessness through promotion of accession to legal instruments, dissemination of information, and the provision of technical advice are concrete and practical preventive measures in reducing involuntary displacement.

20. The speaker pointed out that, while it was well known that the 1951 Refugee Convention included stateless refugees, the international conventions for non-refugee stateless persons were not well-known instruments. UNHCR had, therefore, reviewed historical and legal developments since the last United Nations study on statelessness was completed in 1947. UNHCR would make available shortly an extensive study on the subject of statelessness, and an exposé would be published in the forthcoming issue of The International Journal of Refugee Law.

21. The need for a higher number of accessions to the statelessness conventions was recognized, since the low number of signatories to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness were indicative of the relative obscurity of these instruments today. UNHCR is reviewing how best to promote accession to these instruments and will be consulting further with States in due course.

22. The Executive Committee also had entrusted UNHCR with the systematic gathering of information on the problem. The speaker indicated UNHCR had enlisted the services of the Independent Bureau on Humanitarian Issues in this regard and hoped to have some preliminary information to report back with shortly. In addition, UNHCR's analysis of statelessness in particular countries, undertaken as the need arises, was mentioned. During the past year, the Office has been in contact with a range of other concerned institutions with regard to this issue, notably the Council of Europe, the Organization for Security and Coordination in Europe (OSCE), the Centre for Human Rights, the International Organization for Migration (IOM) and the International Law Commission. Technical advice on current or draft nationality and citizenship legislation has also been provided to interested Governments. In this process, UNHCR has tried to be solution-oriented and to seek practical ways in which provision may be made for the stateless, or potentially stateless, to be granted citizenship.

23. The Chief of the General Legal Advice Section closed by mentioning that the information note was meant to be informative rather than lead to particular protection conclusions. UNHCR planned to follow up with a report to the Sub-Committee in October 1995 on actions taken, and suggests that such reports become a regular feature to help ensure that the issue does not recede, once again, into legal obscurity. Statelessness is, as the Executive Committee has acknowledged, a major issue and one which UNHCR will seek to address steadily and with care. The continued support and direction of the Executive Committee in this respect was welcomed.

B. General comments by delegations

24. All delegations taking the floor during the subsequent discussion welcomed the background paper and UNHCR's activities on behalf of stateless persons. There was consensus amongst delegations that the issue was an important one which merited not only further analysis but also an active formulation of efforts by UNHCR on behalf of stateless persons.

25. One delegation expressed the view that if the question of nationality was attended to, instances of potential statelessness could be resolved before problems arose. This view was supported by another delegation, which encouraged UNHCR to share its expertise by giving States technical advice on citizenship and nationality legislation.

26. The similarity between stateless persons and refugees, both lacking national protection, was noted by several delegations. The suggestion was made that UNHCR, in the context of its mandate and as a measure of prevention of situations possibly creating refugees, should continue its study of the situation with the aim of making recommendations to the Executive Committee at its next session. One delegation requested a case-by-case study in various countries analysing the situations resulting in statelessness. Another delegation requested further information on the exact numbers of de jure and de facto stateless persons. The development of technical advisory guidelines for UNHCR and governmental staff was also requested.

27. The issue of state responsibility was raised, with delegations mentioning the responsibilities incumbent upon States to avoid creation of statelessness as well as to admit or readmit nationals and, possibly, residents. UNHCR was invited to explore means by which a more accepted and universal view of the obligation to readmit nationals might be developed, supported and disseminated. The possibility of UNHCR playing a role in assisting nationals and residents to return was raised. One delegation mentioned regional efforts made to resolve situations in which formation of States or state succession might result in statelessness.

28. All delegations were in agreement that the issue should be discussed in greater detail at the upcoming sessions of the Executive Committee. UNHCR was invited to report back on the initiatives which had been suggested. The suggestion was made that statelessness be a subject of regular discussion at Executive Committee meetings.

C. Closing remarks

29. The Chief of the General Legal Advice Section thanked delegations for their support on this important topic. She noted the connection with state responsibility and made mention of last year's Executive Committee conclusions regarding internally displaced persons, which also touched on the matter. She welcomed the invitation to UNHCR to carry on its work in this area.

30. The Chairman, in closing, reaffirmed the importance of the subject, indicating it had been neglected for too long. He welcomed the upcoming work to be undertaken on the issue by UNHCR.

IV. UNHCR GUIDELINES ON PREVENTING AND RESPONDING TO SEXUAL VIOLENCE AGAINST REFUGEES

A. Opening remarks

31. The Chairman opened the agenda item by informing the Sub-Committee that the UNHCR Guidelines on Preventing and Responding to Sexual Violence against Refugees had been released in March this year. He also thanked UNHCR for preparing the accompanying information note. In introducing the Guidelines, the Chief of the General Legal Advice Section of UNHCR's Division of International Protection noted that sexual violence was one of the most serious protection problems facing female refugees. She stated that the focus of the Guidelines was on female refugees in recognition of the fact that the majority of the reported cases occurred against them. The Guidelines were a collaborative effort, initiated in the field, involving staff of UNHCR, non-governmental organizations (NGOs) and others, such as WHO.

32. The Guidelines were intended to provide field workers with an understanding of how and when sexual violence may occur in the refugee context; the physical, psychological and social effects it could have on its victims; and the fact that many incidents remained unreported for a variety of reasons, such as fear of reprisal or shame. They emphasized the need to prevent sexual violence from occurring, and included suggested strategies and action that can be taken by UNHCR, NGOs, host Governments and the refugees themselves. While not intended for specialist use, the Guidelines provide practical advice to field workers on how to respond to incidents of sexual violence. Responses in the fields of protection, physical health and psychological care are covered. The Guidelines also contain new policy aspects. The speaker noted that the challenge now facing UNHCR was to ensure their full implementation. To this end, the Guidelines would be widely disseminated amongst UNHCR and NGO staff, government officials and others working with refugees, and incorporated into regular protection training activities. Finally, on behalf of UNHCR, she welcomed any suggestions, guidance or support from Governments.

B. General comments by delegations

33. All responding delegations warmly welcomed the Guidelines and voiced their strong support for UNHCR's attention to this important issue. They also stressed the importance of continued efforts for the protection of refugee women. The document was described as being a comprehensive and thorough resource and delegations requested UNHCR to ensure its wide distribution. Many delegations emphasized the importance of prevention of sexual violence and stressed the need to adopt measures of deterrence. In this regard, the extensive section dealing with preventive action was applauded.

34. One delegation noted with appreciation the reference to Executive Committee Conclusion No. 73 on Refugee Protection and Sexual Violence in the section dealing with refugee status determination. The delegation also highlighted the connection between lack of documentation on sexual violence and lack of international protection, and called for the collection and dissemination of relevant information among States. Two delegations encouraged UNHCR to disseminate the relevant contents of the Guidelines to refugees themselves through appropriate information and educational techniques. One delegation informed the Sub-Committee that it had recently issued gender guidelines on substantive and procedural aspects of women's asylum claims, and mentioned a recent precedent-setting decision concluding that rape could amount to persecution within the refugee definition. Another delegation stressed the grave concern over sexual violence in general, and its use as a weapon in situations of conflict, in particular. This delegation sought confirmation that Field Offices had collaborated in the preparation of the document.

35. Another delegation announced its intention to distribute the document to its Government's national officers dealing with refugees, noting that it would form an important part of future training. A number of delegations remarked on the usefulness of the Guidelines in enabling host country authorities to identify concrete action they could take in carrying out their responsibility to provide protection to refugees. Most delegations hoped that there would be regular reporting on the implementation of the Guidelines.

C. Closing remarks

36. The Chief of the General Legal Advice Section thanked delegations for their strong support and suggestions to help the Office face the challenge of implementation. She concurred with the need to provide the refugees access to relevant contents of the Guidelines and stated that UNHCR would examine the most effective way to achieve this. In this connection, she informed delegations that the current initiative to develop legal awareness training for refugee women, as requested by the Executive Committee last year, would incorporate many of the issues relating to sexual violence. On the question of field collaboration, it was noted that last year the document had been shared in draft with all UNHCR offices for their contribution, distributed to NGOs at the UNHCR-NGO Partnership in Action (PARinAC) Conference in Oslo and also shared with selected United Nations agencies and intergovernmental organizations. Finally, UNHCR noted the close relationship it enjoys with the Commission on Human Rights Special Rapporteur on violence against women, and expressed its appreciation for the attention given in her preliminary report to concerns relating to refugee women.

37. The Chairman closed this agenda item by offering his own congratulations to UNHCR and noted the requests by delegations for a progress report on the dissemination and implementation of the Guidelines.

V. OTHER BUSINESS

38. There being no further business, the Chairman adjourned the meeting.