Note on International Protection (submitted by the High Commissioner)

A/AC.96/713

SUMMARY

A description of developments in 1987 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 (Document E/1988153). A summary covering the first six months of 1988 is included in the Overview of UNHCR Activities (Document A/AC.96/709).

The present Note analyses the current state of the international protection of refugees in specific areas such as in relation to expulsion and non-refoulement, detention, security of refugees, voluntary repatriation and the gainful employment of refugees. Furthermore, the Note examines issues relating to stateless persons.

INTRODUCTION

1. The international protection of refugees is a fundamental, humanitarian responsibility of the United Nations High Commissioner for Refugees. In essence it requires the High Commissioner and his Office to stand between the endangered individuals and a state authority. In this it is a difficult responsibility, and broadly unpopular in some quarters, sometimes creating tension with governments. The success of his endeavours can be difficult to measure and failure can be tragic. The protection function goes, however, to the heart of what UNHCR was set up to do.

2. There are internationally recognized basic rights and principles which support and structure the High Commissioner's protection efforts. They have variously been the subject of comment in earlier Notes on protection to the Executive Committee. They, nevertheless, bear repeating at this point.

3. The right to life, liberty and security of person, the right not to be subjected to torture or to 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, the right to seek and enjoy, in other countries, asylum from persecution and the right to a nationality, among other fundamental rights, have a particular relevance in refugee situations. The prohibition against expulsion or return (refouler) of a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened has acquired the status of a norm of customary international law. Freedom from persecution and the right not to be discriminated against on the grounds of race, religion, nationality, membership of a particular social group or political opinion are of the essence of the definition of refugee. Personal security and self-sufficiency, including through the exercise of the right to be gainfully employed, are integral to the achievement of a durable solution to a refugee problem, which remains the ultimate protection.

4. One of the essential requirements of international protection is that these principles of law and these rights be upheld in all circumstances and that they be applied consistently. While the High Commissioner's position on specific issues at a given time may not always be to the liking of states, their respect in the long run will depend on there being no deviation from the principles which are the substance of the High Commissioner's mandate. Ultimately, there is an expectation that the High Commissioner must fulfil the mandate with which States have entrusted him; failure to defend basic principles and to protect refugee rights can only lead to erosion of his authority, of the guiding principles, and, ultimately, of the system of international protection, so carefully constructed by states and buttressed by these principles and his authority.

5. Accordingly, UNHCR has identified promotion and strong support for basic rights and principles, as well as global consistency in their application, both on the part of states and of the Office itself, as main objectives of its protection work. UNHCR's approach recognizes that the principles must be applied across the broad spectrum of the refugee problem, from causes of flight to the refugee's re-establishment in a state community.

6. UNHCR has followed closely and with interest efforts in international fora, notably the Commission on Human Rights and the United Nations General Assembly, to address constructively the problem of root causes and states' responsibilities in this regard. The Office believes that the best solution to refugee problems lies in removing the causes of refugee movements so that people do not feel compelled to leave and those who have fled are able safely to return. By addressing the root causes, the international community has, in recent months, enhanced the prospects for durable solutions in a number of long standing refugee situations. UNHCR has welcomed the constructive efforts which have been made by all the concerned states in this regard and remains, of course, willing to co-operate fully, within the limits of its humanitarian mandate.

7. For its part, UNHCR is only able to exercise its humanitarian functions of protecting and assisting refugees with the full co-operation of states. In view of the magnitude and complexity of the refugee problem today, the need for full co-operation is stronger than ever. The responsibility of States to work together and with the High Commissioner in the performance of his functions is the subject of a more detailed Note (EC/SCP/50) submitted to the Sub-Committee of the Whole on International Protection for discussion at this present session. This Note on International Solidarity and Refugee Protection was, in large part, prompted both by the perceived need for strong and more forthcoming support from States for the High Commissioner's efforts generally and by the fact that, in relation to two specific refugee situations, it has been clearly demonstrated that working together achieves positive results.

8. Large numbers of refugees throughout the world continued to benefit from asylum and were treated in accordance with internationally accepted standards. Even so, an increasing number of states took measures which violated the basic protection principles. The following paragraphs draw attention to more recent developments, or to ongoing problems, in the protection area. In some instances, they reflect a drawing back by States from basic protection standards, or even a preparedness on the part of a few states to disregard them completely.

EXPULSION AND REFOULEMENT

9. One of the most fundamental principles of refugee protection is that, save in exceptional circumstances, a refugee should not be expelled. The international community recognizes only a very restricted exception to the specific prohibition on expelling on returning (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

10. Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees set out these prohibitions and are binding on States parties. The 1969 Organization of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa extends the prohibition specifically to include rejection at the frontier. Other regional texts, such as the 1966 Bangkok Principles concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Committee, and the 1984 Cartagena Declaration on Refugees expressly recognize this extension.

11. The Executive Committee has, on many occasions, taken a resolute position against measures of Refoulement or expulsion (Conclusions No. 6 (XXVIII) 1977, No. 7 (XXVIII) 1977 and No. 22 (XXXII) 1981). It has recognized that measures of expulsion may have very serious consequences for a refugee and his immediate family and "should only be taken in very exceptional cases and after due consideration of all the circumstances (No. 7, para. (C)). "In all cases the fundamental principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed" (No. 22, para. II (A) (2).

12. In spite of broad State consensus around these fundamental principles, it is clear that they are often violated, and by a number of States in most areas of the world. Over the six months period from August 1987 to January 1988 alone, the Office was made aware of incidents of expulsions or refoulements in more than 20 different countries from all geographical regions, involving altogether thousands of people. It is, moreover, probable that the total number of incidents would be considerably higher were details of all expulsions or refoulements - and in particular of refugees rejected at frontiers without any access to procedures - made known to UNHCR.

13. Measures of expulsion, including refoulement, vary considerably. 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. Many incidents of expulsion or refoulement involve single cases; in some extreme instances, however, they are large scale, with up to a thousand or more persons at a time being affected. In the very large majority of cases, UNHCR's representations on behalf of the persons involved go unheeded.

14. Problems facing asylum countries confronted by continuing and large scale arrivals of asylum-seekers can be complicated and burdensome. Solutions must, however, never be at the expense of fundamental principles. The Executive Committee, at its thirty-eighth session in 1987, took much the same position, although in a more limited context, when it:

"Called upon States that have adopted a number of measures aimed at discouraging abusive use of asylum procedures to ensure that these measures have no detrimental effect on the fundamental principles of international protection, including on the institution of asylum."

15. Evidence clearly suggests that an increasing number of states are prepared to take measures which violate the basic protection prohibitions against expulsion and refoulement. Such measures go to the heart of refugee protection and necessitate co-ordinated action to prevent the practice of expelling or refouling refugees and asylum-seekers becoming even more widespread and entrenched. States Members of the Executive Committee are invited to turn their attention to this very worrying development with a view to suggesting how it might be contained.

DETENTION

16. Article 31 of the 1951 Convention relating to the Status of Refugees states that no penalties should be imposed on refugees on account of their illegal entry when they come directly from a territory where their life or freedom was threatened on grounds of race, religion, nationality, membership of a particular social group or political opinion, as long as they present themselves without delay to the authorities and show good cause for their illegal entry. It follows from this provision that refugees who come directly are not to be detained solely on the ground that they entered a country illegally.

17. Given the growing tendency of some States to detain both refugees and asylum - seekers, the High Commissioner submitted the subject to the Executive Committee in 1986 for its consideration. Following discussion in the Sub-Committee of the Whole on International Protection, the Executive Committee adopted Conclusion No. 44 (XXXVII) on the Detention of refugees and asylum-seekers. Although the Committee did not define the concept of detention, it is clear that the Conclusion is of direct relevance also in situations other than detention in prisons.

18. It is agreed in this Conclusion that detention of refugees and asylum-seekers should not only not be automatic but, in view of the hardship involved, should normally be avoided. Where of necessity it is resorted to, it should only be on grounds prescribed by law and for specified purposes. These purposes were listed as being to verify identity, to determine the elements on which the claim to refugee status or asylum is based, to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the state in which they intend to claim asylum and to protect national security or public order.

19. Detention for the purposes of a preliminary interview to determine the underlying elements of the refugee status or asylum claim is not the same as detention of a person for the entire duration of a prolonged asylum procedure, which the Conclusion does not endorse. As regards refugees and asylum-seekers using fraudulent documents or travelling with no documents at all, the Conclusion recognizes that detention is only permissible when there was an intention to mislead the authorities. Thus, asylum-seekers who arrive without documentation, because they were unable to obtain any in their country of origin, should not be detained solely for that reason.

20. Another important provision of the Executive Committee Conclusion is its stress on conditions of detention being humane. In particular, it calls for refugees and asylum-seekers, whenever possible, not to be accommodated with common criminals, nor must they be located in areas where their physical safety is endangered.

21. Although States Members of the Executive Committee adopted the Conclusion by consensus, the recommendations contained therein appear to have had very little impact on the practice of a number of states as regards detention of refugees and asylum-seekers. On the contrary, detention under harsh conditions, for long periods and without justifiable cause has recently increased. Thus, in some refugee situations, asylum-seekers are still detained as a matter of course for extended periods - sometimes over a year or more. Although some countries have established special detention facilities for refugees and asylum-seekers, other countries continue to detain them together with common criminals. Moreover, in a number of situations, the conditions of detention could not be described as humane. Large numbers of persons have been confined in overcrowded cells, for example, in warehouses, and in several instances the detainees were only very rarely offered an opportunity, for example, to shower or to exercise outside their cells.

22. A problem which has caused particular concern to the office was the detention of refugee minors. Such detention occurred in many refugee situations. The Guidelines issued by UNHCR in 1988 on Refugee Children state, in this regard, that due to their special situation, refugee children should not be detained. When children are kept in detention, together with one or both of their parents or other family members or guardians, alternative accommodation should be provided for the children with their families, in circumstances not amounting to detention.

23. Overall it was particularly discouraging for UNHCR that so many States, including those who participated in the elaboration of the 1986 Conclusion, continued to detain refugees and asylum-seekers in disregard of the basic minimum standards recognized by the Executive Committee as appropriate to such detention. UNHCR will continue to monitor State practice in this area and intervene as required. It is also necessary for States to review and adjust their practices in relation to detention of refugees and asylum-seekers.

SECURITY OF REFUGEES

24. Persons flee their country and seek protection as refugees in order to survive. The main objective of international protection of refugees is to ensure their physical safety and security. Over the last two decades, however, the security of refugees has been seriously endangered through physical attacks against their persons, deliberate military and armed attacks on their camps and settlements, militarization of their camps and their forcible recruitment into regular or irregular armed forces. Guaranteeing the physical protection of refugees remains one of the most difficult protection problems for the High Commissioner.

25. It will be recalled that the the Executive Committee has been considering the issue of military and armed attacks on refugee camps and settlements for several years and that it adopted a Conclusion on the subject at its thirty - eighth session in 1987. This Conclusion condemns all violations of the rights and safety of refugees and asylum-seekers and in particular military and armed attacks on refugee camps and settlements. It strongly urges States to abstain from these violations, which are against the principles of international law and, therefore, cannot be justified, and calls upon all the parties concerned to assist the victims of such attacks as may, however, occur. Finally, the Conclusion urges States and other parties to be guided by a series of considerations in promoting measures to enhance the protection of refugee camps and settlements.

26. This Conclusion was hailed at the time as an important step towards dealing with the problem of armed attacks. Its effect has yet, however, to be felt. There has been a wide variety of military and armed attacks on refugee camps and settlements during 1987 and the first six months of 1988, the vast majority of which took place in Africa and the Middle East. Such attacks, which took the form of either aerial bombardments of camps and settlements or ground attacks, invariably resulted in indiscriminate violence. Victims included refugees, amongst them women, children and aged persons and the civilian population living in the vicinity. In addition to those who lost their lives, many persons were injured, abducted, raped or otherwise subjected to physical and psychological suffering directly attributable to these attacks.

27. Certain attacks are launched across international boundaries, while others originate from within the territory of the country of asylum. Several attacks in the former category occurred, particularly in the southern Africa region. Some of these attacks were launched, not at refugee camps or settlements, but at urban areas where refugees were known to live, with the result that an even higher proportion of civilians was found amongst the victims. The High Commissioner has joined international condemnation of such attacks, which he has described on the occasion of one such attack, as a grave violation of international law and of accepted norms regulating conduct between States as embodied in the United Nations Charter.

28. Attacks on refugee camps and settlements which originate from within the territory of the country of asylum generally occur in the context of internal armed conflicts. Their ultimate objective may be to secure relief supplies for a belligerent party, forcefully to recruit combatants from amongst the refugee population or simply to harass the refugees. Whatever the motivations of such attacks, their results are generally tragic. In one country in Africa, some 33 attacks were registered in 1987, on 21 out of 26 settlements, with 25 refugees reported murdered, some 100 injured, over 150 women and girls raped and between 300 and 400 persons abducted and reported missing.

29. Invariably, UNHCR's first task in relation to military and armed attacks on refugee camps and settlements is to attempt to verify the facts. This was possible in some instances. More often than not, however, this proved impossible, due either to the fact that the Office was not present in the particular country or area, or because the concerned camp or settlement was located in a particularly remote and inaccessible area or an area of armed conflict to which the Office could not have ready or timely access.

30. UNHCR has also tried to ensure that the victims of attacks were attended to and assisted in accordance with their needs and has worked with the concerned authorities to forestall further attacks. In the southern Africa region, for example, UNHCR assisted in the evacuation of refugees to countries which did not border on the country of origin. There is a need, however, for UNHCR's efforts in this regard to receive additional support from States in order to ensure that the refugees concerned are not exposed to further attacks from their country of origin.

31. Remedial measures to forestall military and armed attacks on refugee camps and settlements are not easily implementable. Locating camps and settlements at a reasonable distance from the frontier of the concerned country of origin was not, for example, always possible. In one refugee situation, due to the particular territorial configuration of the country of asylum, moving the refugees away from the border would have meant having to move them out of the country concerned. Given the large numbers of refugees involved, this option could not be implemented. Elsewhere, the national authorities were reluctant, for a variety of reasons, to move refugee concentrations further inland.

32. In one refugee situation, the attacks on the refugee settlements, which took place in the context of an internal armed conflict, coincided with a fundamental change in the circumstances in the country of origin which had given rise to the refugee exodus. As a result, UNHCR was able to assist in the evacuation of most of the refugees from the area and to facilitate their voluntary return to their country of origin. In other armed conflict situations, the efforts of the Office to protect refugee camps and settlements met with little success.

33. In evaluating the experience gained by the Office since the Executive Committee Conclusion was adopted last year, it is clear that much remains to be done in order to improve the security of refugees in camps and settlements in general, and to deal more effectively with those military and armed attacks which occur. This entails ensuring that security concerns are fully taken into account at different planning stages; often in the initial emergency situation by ensuring that camps and settlements are located at a secure distance from the border with the country of origin and away from zones of armed conflicts. It also requires that security concerns are met during subsequent phases of the refugee situation. To achieve this objective, it is important, among other measures, to raise the consciousness of UNHCR's staff and that of its implementing partners. Training programmes run by UNHCR on emergency preparedness already contain a component on this issue and the Office is in the process of establishing a separate training module on military and armed attacks on refugee camps and settlements. In addition, and as foreseen by the Conclusion adopted by the Executive Committee, UNHCR has initiated a dialogue with the Office of the Secretary-General of the United Nations with a view to identifying suitable responses and possible solutions. These consultations also aim at establishing jointly planned actions, including field evaluation missions, by the two Offices when attacks occur. Furthermore, UNHCR is in the process of improving monitoring procedures, to the extent possible, for all occurrences of military and armed attacks on refugee camps and settlements, inter alia, in order to improve its reports on the subject to the Executive Committee and the General Assembly.

34. Finally, it needs to be stressed that apart from measures which can be taken by UNHCR, in order to reduce the number of attacks on refugee camps and settlements, it is imperative that all parties concerned, including States, fully respect their obligations under international law. This requires that they both abstain from exploiting refugees for military purposes, through, for example, forced recruitment into belligerent forces, and that the distinction between civilians and refugees on the one hand and combatants on the other is maintained at all times. 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 successfully be protected from military and armed attacks.

35. As to the problem of forced recruitment into armed groups, guerrilla bands or regular armies, such practices continued in 1987 and early 1988 and affected considerable numbers of young male refugees. Coercing refugees to take part as active combatants in armed conflicts amounts to a clear threat to their survival and integrity and may have the effect of denying them access to international protection. Forcible recruitment goes against the accepted notion that refugees are civilians and that, as the Executive Committee itself confirmed in its Conclusion on military and armed attacks, refugee camps and settlements have a strictly civilian and humanitarian character which all parties are obliged to maintain.

36. Finally, the security of refugees, in particular of women and girls, continues to be jeopardized during the period of flight. Thus, for example, piracy attacks in the waters of South-East Asia continued, and even increased somewhat, during the early part of 1988, as compared to the same period of the previous year. Efforts to curb such attacks were pursued under the Anti-Piracy Programme previously established by the Royal Thai Government in co-operation with UNHCR and funded by several donor countries. Similarly, the Rescue at Sea Resettlement Offers (RASRO) scheme and Disembarkation Resettlement Offers (DISERO) scheme continued to benefit large numbers of asylum-seekers in distress at sea who might otherwise have lost their lives. In other parts of the world, national authorities and UNHCR increased their vigilance along flight routes and in refugee camps and settlements with a view to ensuring that refugees and asylum-seekers in search of protection were not murdered, injured, raped, abducted or otherwise subjected to physical or psychological injury.

VOLUNTARY REPATRIATION

37. Voluntary repatriation, whenever feasible, is the preferred solution to any refugee situation. It upholds the right of refugees to return to their country of origin and achieves the ultimate objective of refugee protection, i.e. the re-establishment of the refugees in a community - in this case, their own. Last year's Note on International Protection described the detailed internal guidelines which have been issued by the Office on action to be taken in the context of the voluntary repatriation of refugees.

38. Applying these guidelines, UNHCR assisted in the voluntary return of more than a quarter of a million refugees during 1987 and the first half of 1988. The main repatriation movements took place on the African Continent. Considerable numbers of refugees also returned to Central American countries, while there were some voluntary returns in Asia.

39. Repatriation of refugees must only take place at the freely-expressed wish of the refugees themselves and it is part of UNHCR's protection function to ensure that the voluntary character of repatriation is always respected. Except in situations in which refugees returned spontaneously, outside established procedures and programmes, UNHCR was able to work towards ensuring the voluntariness of return. In almost all situations, the Office was satisfied with the voluntary character of such returns. In one situation, however, the Office was preoccupied with the pressure which was exerted on the refugee population to return to their country of origin and UNHCR's concerns were brought to the attention of the country of asylum.

40. Furthermore, voluntary repatriation must be carried out under conditions of safety and dignity, preferably to the refugees' place of origin or residence in that country if they so wish. In order to monitor the conditions of the return, as well as the treatment given to the repatriants in their country of origin, UNHCR strengthened significantly its presence in the respective countries of origin. The Office was thereby able to assure itself that, by and large, basic conditions were met.

41. Nevertheless, the volatile situation which prevailed in a number of countries of origin made it difficult for the national authorities to ensure the safety and dignity of the returnees. For the same reason, it was difficult for the Office to ensure proper monitoring of the treatment of the returnees.

42. In one region, it was found that when returnees were not issued with the necessary repatriation documents by the national authorities, this resulted in limits being placed on their freedom of movement and choice of residence and endangered their safe return. Similarly, those refugees who were not issued with the appropriate national identity card were unable to enjoy, on return, basic rights to which they should have been entitled, including the right to work, education, health care, social security and other social benefits dependent upon proof of identity. The Office has been negotiating with the concerned national authorities the issue of appropriate repatriation and/or national identity documents.

43. UNHCR has also continued to monitor the fulfilment by countries of origin of whatever assurances they have given in relation to the treatment of voluntary repatriants. UNHCR found that in most cases returning refugees were treated in accordance with such assurances. However, there were some instances which gave rise to concern, where returning refugees were detained by the national authorities for no apparent reason or where they were abducted or killed. The Office intervened with the national authorities on behalf of the detained refugees and achieved the prompt release of the vast majority. The instances of abduction or loss of life appeared to be the result of the volatile situation prevailing in the countries of origin and the fact that the persons concerned had returned to areas of armed conflict.

44. Compared with the global refugee population, the number of refugees availing themselves of voluntary repatriation remained relatively low. For voluntary repatriation to become a viable alternative for larger numbers, States must remove the root causes of refugee movements. Only where conditions which provoked the original refugee movement have disappeared, can greater numbers of refugees be expected to return voluntarily to their countries of origin. As was pointed out in last year's Note on International Protection, this task is largely political and it is the responsibility of States to pursue it more vigorously.

45. In this respect, a significant and positive development took place in April 1988 with the signing of the Geneva Accord on Afghanistan. This Accord offers formal guarantees for the voluntary return of refugees and foresees UNHCR co-operation and assistance in the voluntary repatriation exercise. Subsequently, UNHCR entered into bilateral agreements with the Governments of Afghanistan and Pakistan with a view to facilitating the voluntary return of the refugees. These agreements follow closely the internal UNHCR guidelines for voluntary repatriation. They provide for full UNHCR participation in planning, facilitating and monitoring the return of the refugees, in accordance with fundamental principles of protection. Also included is UNHCR's unhindered access at all times, both to the repatriants themselves and to all the areas to which the refugees are returning. UNHCR is working out the modalities of voluntary return so as to be prepared for such movements as soon as they become feasible.

GAINFUL EMPLOYMENT OF REFUGEES

46. It is often overlooked that the rights of refugees do not stop with determination of status and admission for asylum purposes. Juridical status, employment, welfare and social security, together with administrative matters, comprise, for example, the bulk of the 34 substantive provisions of the 1951 Convention relating to the Status of Refugees. This Convention has, in fact, as one of its major objectives, the provision of rules for the status of the refugee in the country where that person is recognized and/or has found asylum, to enable the refugee, his/her family and dependants to build a new life on solid foundations, psychologically secure and materially self-sufficient.

47. The right to be gainfully employed is internationally accepted as a fundamental human right and as essential to the achievement of an acceptable measure of personal security and self sufficiency. This is recognized in the 1951 Convention which obliges States:

• in regard to wage earning employment, to ensure refugees the most favourable treatment given to foreign nationals, to exempt refugees under certain circumstances from employment restrictions on aliens and to consider sympathetically bringing refugees onto a par with nationals (Article 17);

• in regard to self employment, at a minimum to bring refugees onto a par with aliens in the same circumstances and generally to accord as favourable treatment as possible (Article 18);

• in regard to the liberal professions, the same obligations as with self employment where refugees hold diplomas recognized by the State (Article 19).

48. Although the Convention is only binding on States Parties, the right of every individual (including refugees) to have the opportunity to secure material well-being through the exercise of a gainful occupation has received clear and authoritative recognition by the international community. Article 23 (1) of the Universal Declaration of Human Rights asserts:

"Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment."

49. The International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 6 provides:

1. "The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realisation of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual."

50. International instruments are relatively clear in establishing the existence of a "right to work". At the national level, however, social and economic policy rather than law determine its content. Clearly the law cannot enforce a right to exercise the capacity to work, particularly at a time when the availability of jobs is seriously restricted by global economic recession. The law can only hope to remove unreasonable restraints on the exercise of work capacity. This is the intent of, for example, Articles 17-19 of the 1951 Convention.

51. As far as refugees are concerned, income generating activities lead to self-sufficiency and stability and thereby offer the prospect of durable resolution of a refugee problem. UNHCR has, therefore, been particularly disturbed to learn, as a result of a recently completed global survey of laws and policies in refugee receiving countries, that in many of these countries there are serious legal and practical obstacles confronting refugees who wish to work. The main obstacles are summarized in the following paragraphs with a view to bringing to the attention of the Executive Committee the nature of the problem.

52. An absence of refugee determination procedures in a number of countries, often coupled with the fact that these countries are not party to any major refugee instrument, has meant that they treat refugees as aliens, or even illegal immigrants, often confine them in closed camps under harsh conditions, and thereby deny them legal and practical access to the job market. This is the case even where certain limited, gainful activities are unofficially tolerated. The drawn-out nature of determination procedures in other countries (in some cases a factor deliberately calculated into an unofficial policy of deterrence) prevents timely access to work opportunities, so that refugees cannot work often up to two years or more, until their status has been decided. Even where employment rights are enjoyed, there is a widespread absence of legislative underpinning of these rights, so that working must depend, to the detriment of long term security, on prevailing official attitudes. In very many countries, there are also no policies or programmes which would assist refugees to find and retain suitable work, or become self-employed.

53. In the large majority of countries where refugees may work, work permits are required. This requirement is, however, often used by some States as a method to curtail work options through limiting work permits both in duration and in scope (i.e. to a specified job only). The annual cost of the permit is, in some instances, a further inhibiting factor. Where work permits are necessary, refugees are often at a great disadvantage, for nationals receive preference over aliens but refugees, in spite of their special situation and needs, do not have the opportunity to have their status regularized in a way which would bring them onto a par with nationals for employment purposes.

54. In most countries with an urban refugee population, the minority of refugees are qualified to compete in the skilled sectors of the economy, where the absorption potential is usually higher. This results, unfortunately, quite frequently, in the exploitation of refugees as a cheap source of manual labour for below minimum wages and in poor conditions of work. Equally disturbing is the fact of discrimination in employment against specific refugee groups, due to ethnic differences or prevailing political attitudes. There are also situations where refugee labour might well be utilized - in fact, in some cases, is badly needed - but this is blocked, also for political considerations.

55. The practice of a profession seems to be difficult everywhere because of the widespread requirement that diplomas or degrees be recognized, be validated or be subject to reciprocal acceptance. This is in spite of the existence of a number of regional conventions on recognition of studies, diplomas and degrees.

56. Overall, the employment situation facing refugees presents a sombre picture. It is clear that economic recession and job scarcity play an important role and it is fully understandable, where local unemployment is severe, that employment of nationals is the priority. It is equally clear that the burden of assisting the majority of the world's refugees falls disproportionately on the developing countries and severely strains their resources and hospitality. The international community has had, accordingly, to reassess its traditional approach to refugee assistance programmes, to integrate them, as appropriate, into development oriented assistance. UNHCR has, for example, been actively pursuing projects which benefit both refugees and nationals and provide durable assets to the host country.

57. UNHCR remains firmly committed to taking the development needs of refugee host countries into account. In this endeavour, UNHCR must be able to rely on the full support of donor countries, who endorse the pursuit of regional solutions to refugee problems.

58. In the context of refugee employment, development oriented refugee assistance aids in generating job opportunities for refugees. This, in turn, should help host countries to readjust their policies and priorities, as well as their legislation, to enable them to meet their international obligations and responsibilities towards refugees in the field of employment.

STATELESS PERSONS

59. Stateless persons constitute a largely unprotected, vulnerable group of people, to whose problems the international community generally gives insufficient attention. In the pioneering study on statelessness (HCR/IP/17) prepared by the United Nations Secretary-General in 1949, the difficulties resulting from statelessness were clearly identified as being of three types: for the reception countries, for the countries of origin and, most important, for the stateless persons themselves:

"Normally every individual belongs to a national community and feels himself part of it. He enjoys the protection and assistance of the national authorities. When he is abroad, his own national authorities look after him and provide him with certain advantages. The organization of the entire legal and economic life of the individual residing in a foreign country depends upon his possession of a nationality. The fact that the stateless person has no nationality places him in an abnormal and inferior position which reduces his social value and destroys his own self confidence."

60. The stateless person, the study points out, is "an anomaly" with no definite legal status, no clearly defined rights and is at the mercy of the administrative authorities, "a state of affairs incompatible with a healthy conception of the law."

61. The Secretary General's study was one basis for the two international instruments on statelessness which were subsequently elaborated. These are the 1954 Convention relating to the Status of Stateless Persons, which lays down the basic standards of treatment to which the stateless are entitled, and the 1961 Convention on the Reduction of Statelessness, which prescribes measures designed to ensure t at persons will not become stateless and to enable the stateless to acquire an effective nationality. As at 31 December 1986, there were, however, only 35 States Parties to the 1954 Convention and 14 States Parties to the 1961 Convention.

62. Problems of statelessness usually arise either as an incidental consequence of conflicting municipal laws, or as a result of specifically targeted, discriminatory legislation under which individuals, or groups of persons, cannot meet the criteria for nationality in their country of residence. They consequently are, or become, stateless.

63. It has long been UNHCR's experience that statelessness, particularly as a result of deprivation of nationality, is closely related to the emergence of new refugee situations. Many refugees are also stateless persons, either de jure, or at least de facto, in the sense that they lack the protection of an effective nationality. Lack of national protection and problems of integration and documentation in countries of residence are important common denominators between the situation of refugees and that of stateless persons generally. In recognition of such similarities, the 1951 Convention relating to the Status of Refugees and the 1954 stateless persons Convention contain largely parallel provisions.

64. Refugees who are stateless have traditionally benefited from the full range of UNHCR's functions, including protection and the facilitation of the durable solutions of voluntary repatriation (as appropriate), local integration or resettlement. The High Commissioner's responsibilities for this group are assumed pursuant to paragraph 6 (A)(ii) of his Statute and Article 1 (A)(2) of the 1951 Convention, both of which specifically refer to stateless persons who meet the refugee criteria.

65. As to non-refugee stateless persons, there is no one body empowered to safeguard their welfare and their rights. UNHCR has been designated by the General Assembly (Resolution 3274 (XXIX) and 31136 (XXXI)), pursuant to Article 11 of the 1961 Convention, as the body:

"to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authorities."

Given, however, the limited number of States Parties to the 1961 Convention, the number of persons who may claim its benefit is extremely restricted.

66. Pursuant to its Statute and the 1951 Convention, as well as its appointment as the body provided for in Article 11 of the 1961 Convention, UNHCR has various responsibilities in relation to refugee and non-refugee stateless persons. In most countries, UNHCR's caseload of non-refugee stateless persons, or of refugees whose problems are predominantly a result of their statelessness, is numerically quite small. Nevertheless, problems of statelessness, where they arise, are complex, too often intractable because of rigid State positions and can have tragic consequences for individuals and family groups. Moreover, in a few countries there are groups of stateless persons of some considerable magnitude whose difficulties, from a humanitarian point of view, are acute

67. UNHCR's assistance to persons whose statelessness is the main cause of their lack of protection has included aid and advice in relation to naturalisation and registration of children's births, assistance to obtain travel documents and generally to claim the rights normally accompanying permanent residence. UNHCR has also understood its responsibilities to include promotion with States of measures beneficial to stateless persons, including accession to the 1954 and 1961 Conventions and adoption of appropriate implementing legislation.

68. UNHCR performs these functions in fulfilment of its humanitarian responsibilities and within the framework of its mandate. Clearly, however, UNHCR's role is limited and cannot respond to the requirements of all non-refugee stateless groups who have, however, no other international authority to turn to, in spite of their pressing humanitarian need.

69. In the first instance, what is required from States is much broader adherence to and compliance with the existing instruments on behalf of stateless persons and agreement on a better monitoring mechanism to oversee their implementation. There is a need for further reflection by the international community as to how to tackle individual problems of statelessness which continue to arise, as well as those which for some groups are almost institutionalized. Because of the close relationship, identified earlier, between the problems of refugees and those of stateless persons, UNHCR believes that the reduction of statelessness cannot but have a beneficial effect on reducing the number of persons, who may become refugees.

CONCLUSION

70. The United Nations High Commissioner for Refugees, is charged, under the Statute of his Office, with the principal tasks of providing international protection to refugees and seeking permanent solutions to their problems. Both tasks are integrally linked. Clearly, the ultimate protection for a refugee is the realisation of a durable solution to the refugee problem.

71. In fulfilling his protection responsibilities, the High Commissioner has A wide variety of legal instruments, both multilateral and national, on which he may rely. This body of law is the source of the fundamental principles which direct the High Commissioner's activities. It is also the basis of States' obligations towards refugees, structuring and limiting States' discretion in the treatment of asylum-seekers and refugees. On the other hand, the law may be turned to the disadvantage of those people it should protect, because of its lacunae or because of possibilities for its restrictive interpretation. Law is a very powerful, positive force in the international protection of refugees, but the potential exists for its negative application. Constant vigilance is required on the part of the High Commissioner's Office and by the international community in general, to ensure the progressive application and development of the law, to the benefit of the millions of refugees in the world today who depend upon the treatment it is designed to secure.

72. In exercising his protection function, the High Commissioner is faced today with a problem of greater complexity and size than hitherto: a refugee population whose principal characteristics differ markedly from those of the 1950s, a waning State and public sympathy towards asylum claims and a legal regime which contains gaps. The present challenge for UNHCR, through active promotion of existing protection standards and public information campaigns, coupled with innovative participation in standard-setting activities, is to achieve a situation where the law is in tandem with the realities of the present-day refugee problem and the needs of the affected individuals.

73. A formal legal regime is not, however, the only answer. In particular it cannot operate properly without the political will and commitment on the part of States to ensure that it does so. Accordingly, UNHCR places important emphasis on encouraging and developing liberal and humanitarian practices by States, and not only on promoting legal principles. In this regard, multilateral consultations and co-ordinated efforts between governments, UNHCR and its partners have led over the past year to heartening progress in the treatment by States of certain specific refugee groups. This approach should now be more systematically applied in comparable situations, particularly where, due to the complexity of the issues, they are not able to be dealt with within the existing legal framework, or isolation from other considerations.

74. Finally, this Note has sought to draw attention to on-going protection problems and to the plight of certain vulnerable groups. It has done so with a view to reaffirming the fundamental principles which must be applied, and to encouraging humane and socially responsible practices by States. The political will to find humanitarian solutions to refugee problems, in a spirit of international solidarity and through interaction and co-operation between States, is an essential precondition for the effective exercise of the High Commissioner's international-protection function.